TH1 
 
 LAW 
 
 OF 
 
 LANDLORD AND TENANT; 
 
 TO WHICH IS ADDED, 
 
 AN APPENDIX OF PRECEDENTS, 
 
 BY WILLIAM WOODFALL, 
 
 OF THE MIDDLE TEMPLE, ESQ. RARRISTER AT LAW 
 
 THE FOURTH EDITION, 
 
 WITH CONSIDERABLE ALTERATIONS. AND ADDITIONS*. 
 
 London : 
 
 PRINTED FOR J. BUTTERWORTII AND SOX, FLEET-STREET 
 AND J. COOKE, ORMOND O^UAY, DUBLIN. 
 
 IS Ik
 
 K 
 
 TO 
 THE RIGHT HONOURABLE 
 
 JOHN LORD ELDON, 
 
 BARON ELDON OF ELDON IN THE COUNTY PALATINE OF DURHAM, 
 LORD HIGH CHANCELLOR OF GREAT BRITAIN, 
 
 §c. fyc. $£' 
 
 THIS WORK IS DEDICATED, 
 
 WITH THE MOST PROFOUND RESPECT, 
 
 FOR HIS LORDSHIP'S EXTENSIVE KNOWLEDGE 
 
 AND DISTINGUISHED TALENTS 
 
 AS A LAWYER, 
 
 AND INTEGRITY AS A MAN, 
 
 AND 
 
 WITH GRATEFUL REMEMBRANCE 
 
 OF HIS LORDSHIP'S PERSONAL KINDNESS? 
 
 BY HIS LORDSHIP'S 
 
 MOST OBEDIENT HUMBLE SERVANT, 
 
 WILLIAM WOODFALL. 
 
 1235333 
 
 A 2
 
 ADVERTISEMENT 
 
 TO THE FOURTH EDITION. 
 
 Since the publication of the last edition of this 
 work, many important Cases have been decided, 
 affecting the Law of Landlord and Tenant. — These 
 have been carefully collected and added to the 
 text. Several passages have been omitted, which 
 did not appear to have a proper relation to the sub- 
 ject of this treatise, and much new matter has been 
 introduced. 
 
 An entirely new Index has been framed, upon 
 a more concise and simple plan than the former 
 one, and which, it is presumed, will be found 
 greatly to increase the facility of reference ; on 
 which the utility of a publication of this nature so 
 much depends. In other respects, attention has 
 been paid to the revision and correction of the 
 work ; and it is hoped that " The Law of Land- 
 lord and Tenant" is now presented to the public 
 in a more improved and perfect state. 
 
 Trinity Vacation, 
 1814.
 
 ADVERTISEMENT 
 
 TO THE SECOND EDITION. 
 
 The Patronage, with which this Treatise 
 has been honoured by the Public, is so fully 
 evinced by the rapid sale of the First Edi- 
 tion, and by the approbation of those who 
 are most competent to judge of its merits; 
 that every feeling of gratitude has in the 
 present instance confirmed the principle of 
 emulation, which induces an Author to en- 
 deavour to render his A\ ork as useful and 
 complete, as his means and capacity will 
 allow. 
 
 Under these impressions, this Second Edi- 
 tion of the Law of Landlord and 
 Tenant has been very carefully revised; 
 and, besides other necessary augmentations 
 to the several subjects as they originally stood 
 in the Work, three new Chapters have been 
 added, which treat 1. Of the remedy for a
 
 Vlll ADVERTISEMENT. 
 
 forcible entry. 2. Of the remedy for any 
 infringement of a right of way. 3. Of the 
 right to accommodation in the Parish Church, 
 and of the liability to bear the expences inci- 
 dent to the Church Establishment. 
 
 The Appendix has also been rendered more 
 perfect, by the introduction of some accurate 
 and useful Precedents. 
 
 Middle Temple, 
 Trinity Term, 1804.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 Page 
 Sect. I. JNTRODUCTORT observations on leases 
 
 in general. 1 
 
 Sect. II. Of the requisites to a lease, and how it may be 
 
 made 4 
 
 Sect. III. Of registering leases 15 
 
 CHAPTER II. 
 
 Sect. I. Of agreements for leases, and the remedies thereon 20 
 
 Sect. II. Of the stamps required to leases, and agreements 
 
 for leases 31 
 
 CHAPTER III. 
 
 Of the Parties to a Lease ; wherein by whom a 
 Lease may be made. 
 
 Sect. I. Who may make leases, and herein of leases made 
 
 by tenant in fee-simple 34? 
 
 Sect. II. Of leases made by tenant, In tall ib. 
 
 Sect. III. Of leases by tenant In tail after possibility of is- 
 sue extinct 41 
 
 Sect. IV. Of leases by tenant for life, absolute or contingent lb. 
 
 Sect. V. Of leases by tenants pour aider vie 43 
 
 Sect. VI. Of leases by tenant by the courtesy of England, 
 
 in doiver or jointure , ib. 
 
 Sect, VII. Of leases under powers 44 
 
 Sect. VIII. Of leases by tenants for years 62 
 
 Sect. IX. Of leases by tenant from year to year, or for a 
 
 less term ib. 
 
 Sect. X. Of leases by corjiorations 63 
 
 Sect. XI. Of leases by ecclesiastical persons 67 
 
 Sect. XII. Of leases by trustees of charities 73 
 
 Sect. XIII. Of leases by married luomen, and husbands 
 
 seised in right of them 75 
 
 Sect. XIV. Of leases by infants and guardians 79 
 
 Sect. XV. Of leases by executors or administrators 82 
 
 Sect. XVI. Of leases by mortgagors and mortgagees ib.
 
 CONTENTS. 
 
 Page 
 
 Sect. X\TI. Of lenses by tenants by elegit, statute merchant, 
 
 and statute s tajik, &c 85 
 
 Sect. XVIII. Of leases bij copyholders; wherein of licence... ib. 
 
 Sect. XIX. Of leases by joint-tenants, coparceners, and te- 
 nants in common 89 
 
 Sect. XX. Of leases pursuant to authority ; wherein of 
 
 leases by att amies, agents, iffc 9'J 
 
 CHAPTER IV. 
 
 To whom leases may be made 95 
 
 CHAPTER V. 
 Of the Subject- Matter of Leases. 
 
 Sect. I. Of corporeal hereditaments ; wherein of farms, lands, 
 
 houses, and lodgings 1 00 
 
 Sect. II. Of incorporeal hereditaments ; wherein of advowsons, 
 
 tithes, &c 103 
 
 CHAPTER VI. 
 For what Term Leases man be made. 
 
 Sect. I. Of terms for life, and how created 110 
 
 Sect. II. Of terms for years absolutely, or on condition, where- 
 in of the commencement, duration, and ter- 
 mination of them, and of the surrender and 
 renewal of leases 115 
 
 CHAPTER VII. 
 For what Terms Leases may be made (continued). 
 
 Sect. I. Of tenants from year to year ; wherein of notice to 
 
 quit 163 
 
 Sect. II. Of tc;; ants for a less term ; wherein of lodgings 177 
 
 Sect. III. Of strict tenants at will ISO 
 
 Sect. IV. Of tenants at sufferance 183 
 
 CM A ITER VI [I. 
 
 Of the general Incidents to Leases. 
 
 Sect. I. Rent, when and how payable 184 
 
 Sect. II. Of taxes 197 
 
 Sect. III. Of the poor's rates 201 
 
 CHAPTER JX. 
 Of the general Incidents to Leases (continued). 
 
 Sect. I. Of waste; wherein of fixtures...., 217 
 
 8
 
 CONTENTS. 
 
 Page 
 
 Sect. II. Of common of estovers 232 
 
 Sect. III. Of emblements 237 
 
 CHAPTER X. 
 
 Of the general Incidents to Leases (continued). 
 
 Sect. I. Of implied covenants and agreements 243 
 
 Sect. II. Of express covenants and agreements 246 
 
 CHAPTER XI. 
 
 Of assignments and under-leases, and in what cases assignees 
 are bound by covenants, or may take advantage 
 of them ; ivhether the assignment or under-lease 
 be absolute, or by way of mortgage 275 
 
 CHAPTER XII. 
 
 Of changes happening by marriage, bankruptcy, insolvency, or 
 death ; wherein of assignees, devisees, executors 
 and administrators, and in what cases they are 
 bound by, and may take advantage of, covenants 289 
 
 CHAPTER XIII. 
 
 Of the Remedies for and against Landlord and 
 
 Tenant. 
 
 First, Of remedies for the landlord for recovery of rent 
 
 Sect. I. By distress; wherein of pound-breach and rescue 304 
 
 Sect. II. Of the action of debt, where the lease is by deed,.. 323 
 
 Sect, III. Of the action of covenant, where the lease is by deed 335 
 
 Sect. IV. Of the action of debt, for use and occujiation 3-15 
 
 Sect. V. Of the action of assumfisit, for use and occupation 348 
 
 CHAPTER XIV. 
 
 Of the Remedies for and against Landlord and 
 Tenant; wherein 
 
 Of the actions of ejectment 'and trespass for mesne profits, for 
 
 recovery of rent and possession 
 
 Sect. I. Of trie action of ejectment at common law 354 
 
 Sect. II. Who may defend the action of ejectment, Iffc 384 
 
 Sect. III. Of the action for mesne prof ts 418 
 
 Sect. IV. Of a second action of ejectment 422 
 
 Sect. V. Of the action of ejectment upon the statute, 4 G. 2. 
 
 c.28. s. 2 , 424 
 
 XI
 
 xii CONTENTS. 
 
 Page 
 
 Sect. VI. Of the remedy for the landlord, under the statute 
 
 11 G. 2. c. 19. where the premises are va- 
 cant 429 
 
 CHAPTER XV. 
 
 Of the Remedies for and against Landlord and 
 
 Tenant (continued). 
 
 For the landlord, for the breach of covenants and agreements, 
 other than for rent 
 
 Sect. I. Of the action of covenant 431 
 
 Sect. II. Of the action of assumpsit 443 
 
 CHAPTER XVI. 
 
 Of the Remedies for Waste. 
 
 Sect. I. Of the action of waste, on the statute of Gloucester, 
 
 and trover for waste 446 
 
 Sect. II. Of the action upon the case in the nature of waste... 456 
 
 Sect. III. Of the remedies in equity, in the case of 'waste ib. 
 
 CHAPTER XVII. 
 
 Of the Landlord's Remedy against Third Persons. 
 
 Sect. I. By action on the case for nuisances to the injury of 
 
 his reversion 461 
 
 Sect. II. Of the action on the case against the sheriff, for re- 
 moving goods under an execution, without pay- 
 ing a year's rent, by virtue of the statute 
 8 Ann. c. 14 , 465 
 
 Sect. III. The landlord's remedy on the statute 1 1 G. 2. c. 19. 
 touching goods fraudulently carried off the 
 premises 469 
 
 CHAPTER XVIII. 
 
 Of the Remedies for 'Tenants against Landlords. 
 
 Sect. I. Of the action of replevin 473 
 
 Sect. II. Of tlu writs in replevin 480 
 
 Sect. III. Of the verdict and judgment in replevin 498 
 
 Sect. IV. Of the remedies where the pledges prove insufficient 504 
 
 CHAPTER XIX. 
 
 Of the Remedies for Tenants against Landlords 
 
 (continued). 
 
 Of the remedies for an unfounded, irregular, or excessive dis- 
 tress 507 
 
 Sect. I. For rent pretended to be arrear., ib.
 
 CONTENTS. X iii 
 
 Page 
 
 Sect. II. For other supposed right to distrain 509 
 
 CHAPTER XX. 
 
 Of the Remedies for Tenants against Landlords 
 (continued). 
 
 Of the tenant's remedies by action of covenant or assumpsit, ac- 
 cording as the lease is by deed, or without deed... 517 
 
 CHAPTER XXI. 
 
 Of the Remedies for Tenants against Third 
 
 Persons. 
 
 Sect. I. Of distress for damage feasant ; and rescous 520 
 
 Sect. II. Of trespass for immediate injuries to the tenant's pos- 
 session, and case for consequential ones 522 
 
 CHAPTER XXIT. 
 
 Of Remedies against Third Persons ; 
 wherein of 
 
 Forcible entry and detainer 535 
 
 CHAPTER XXIII. 
 
 Of Remedies against Third Persons ; 
 wherein of 
 
 Obstruction of a right of <way, and of the actions of 
 trespass, and on the case, for disturbing a right of 
 <zvay 544" 
 
 CHAPTER XXIV. 
 
 Of liability to repair the church, and of the right to Jietus therein 547 
 
 APPENDIX
 
 APPENDIX OF PRECEDENTS. 
 
 Pr.ge 
 
 Agreement for a lease of a house and field 551 
 
 for a farming lease 552 
 
 to let lodgings 55i-555 
 
 A lease for years of a house and lands in the country, with the 
 
 exception of trees, and special covenants 555 
 
 An indorsement for continuing a lease for a longer term, after the 
 
 expiration of the present 562 
 
 A building lease 561? 
 
 Lease of a house in to <wn 568 
 
 An indorsement to continue the term of an expiring lease 573 
 
 Covenant by the lessee not to use or assign the premises for any 
 
 offensive trade 574- 
 
 An assignment of leasehold interest by deed-poll indorsed on the 
 
 lease 575 
 
 Forms of notices to quit, &c 576 
 
 Hotu to make a distress for rent-arrear, and of the sale of the 
 
 same 579 
 
 Precedents of pleadings in replevin 583 
 
 Proceedings in ejectment 592
 
 the 
 
 L A W 
 
 OF 
 
 LANDLORD AND TENANT, 
 
 Qc. #c. #c. 
 
 CHAPTER I. 
 
 Section I. Introductory Observations on Leases in 
 
 general. 
 
 T\EFINITI0N of a Lease. — A lease is a contract for the possession 
 and profits of lands and tenements on the one side, and a recom- 
 pense of rent or other income on the other ; or it is a conveyance of 
 lands and tenements to a person for life, or years, or at will, in consi- 
 deration of a return of rent or other recompense. The party letting 
 the land is called the lessor or landlord, and the party to whom the 
 iease is made, the lessee or tenant. 
 
 Antiquity of Leases, Sjc. — It has generally been supposed, that the con- 
 nection between landlord and tenant has gradually improved from that 
 of master and slave into a state of total independance, and mutual in- 
 terest in the soil. In support of this opinion, we are told (a) that lands 
 were originally occupied by bondmen ; but as these men derived no 
 profit from their labour, and had consequently no interest in being in- 
 dustrious, it became necessary to have a free man to manage the farm, 
 who probably at first had some acres set apart to him for his mainte- 
 nance and wages. In progress of time, it was found more politic to give 
 him an interest in the produce, first, by allowing him a certain propor- 
 tion in place of wages, and ultimately, by reserving io the master a 
 yearly quantity certain, and permitting the servant to retain the over- 
 plus. One further step, necessary to bring this contract to its due per- 
 fection, was to give the servant a lease for years, without which he 
 was not secure that his industry would turn to *:is own profit. By i 
 
 fa) Kaims' Hist. Law Trs:. 
 
 B
 
 2 Introductory Observations [Chap. I. 
 
 contract in these terms he acquired the name of tenant, because he was 
 entitled to hold the possession for years certain. 
 
 But the notion that the cultivation of the ground was formerly car- 
 ried on by slaves alone, is contradicted by the evidence afforded by the 
 records and monuments of the middle ages, (a) which prove, that while 
 slavery existed in this country, there were also tenants and free labourers 
 of the ground, who held their lands under lease. It appears that the 
 practice of letting lands was known among the antient British: a pro- 
 prietor of lands being permitted to let them for a year at his pleasure, 
 though he could not alien or charge them, {b) Those who formerly 
 held large districts and tracts of land being unacquainted with the arts 
 of husbandry and tillage, found it their interest to lease out their de- 
 mesnes, which, for want of care and cultivation, lay waste, and afforded 
 them little or no profit. These leases were granted for years ; this mode 
 of letting being thought best to answer the designs ai;d intentions of 
 the lord, as well as the expectations of the tenant: for if they had let 
 them for life, this had given the tenants too great a power over the 
 lord, because then they would have had a property in the freehold, and 
 by suffering disseisins or feigned recoveries to be had against themselves, 
 might have shaken or endangered the inheritance of the owner ; and on 
 the other side, if they had leased their land only at will, few would 
 have chosen to bestow any great pains or industry upon so precarious 
 a possession, which the arbitrary will and pleasure of a peevish lord 
 might have defeated (r }, 
 
 [d, Thus, these estates were originally granted to mere farmers or 
 husbandmen, who every year rendered some equivalent in money, pro- 
 visions, or other rent, to the lessors or landlords; but in order to en- 
 courage them to manure and cultivate the ground, they had a per- 
 manent interest granted them, not determinable at the will of the 
 lord. Their possession, however, was esteemed of so little conse- 
 quence, that they were rather considered as bailiffs or servants who 
 were to receive and account for the profits at a settled price, than as 
 having any property of their own : they were, therefore, not allowed 
 to have a freehold estate, but their interest, such as it was, vested 
 afcer their deaths in their executors, who were to make up the accounts 
 of their testator with the lord, and his other creditors, and were en- 
 •titled to the stock upon the farm. The lessee's estate might also, by 
 the antient law, be at any time defeated by a common recovery suf- 
 fered by the tenant cf the freehold; which annihilated all leases, for 
 years then subsisting, unless afterwards renewed by the recoverer, 
 whose title was supposed to be superior to his by whom those leases 
 v/ere granted. 
 
 While estates for years were thus precarious, it is no wonder that 
 
 [a) 5?e Bell on Lea-:, C. I. (i) I Whit. Manch. s. 4. p. 377. 
 
 ;.-, Bac Abr. Tit. Le=',^. (/) 2 Bl. Com. 141.
 
 Sect. L] on Leases in general. 3 
 
 tliey were usually very short, like our modern leases upon rack rent ; and 
 indeed, we are told that, by the antient law, (a) no leases for more 
 than forty years were allowable, because any longer possession, (espe- 
 cially when given without any livery declaring the nature and duration 
 of the estate,, might tend to defeat the inheritance. Besides, such 
 leases were only made to serve the occasions and exigencies of the lord. 
 in cultivating and improving his demesnes ; [b not to borrow money 
 upon, or to raise portions for daughters, or such other uses as are no-w 
 made thereof: therefore there was no need to extend them to any great 
 length of time, since they might be renewed as often as occasion re- 
 quired ; the lessees likewise, if they were evicted, being only to recover 
 damages, it would have been fruitless to prolong leases for the term of 
 a thousand years, when the persons who would have to possess under 
 such leases had no remedy for their damages, but by recourse .to the 
 representatives of the original lessor. The law, 'however,- that restricted 
 the duration of leases for years to forty years, -if it ever. : existed, was 
 soon antiquated: (c) for we may observe in Madox's Collection of An- 
 tient Instruments, some leases for years of an early date, which con- 
 siderably exceed that period ; and long terms for three hundred years, 
 or a thousand, were certainly in use in the time of Edward III. and 
 probably of Edward I. But undoubtedly when by the statute 21 H. 8. 
 c. 15. the termor that is, he who is entitled to the term for years) was 
 protected against these fictitious recoveries, and his interest was ren- 
 dered secure and permanent, long terms began to be more frequent 
 than before ; and were afterwards extensively introduced, being faund 
 extremely convenient for family settlements and mortgage's.' 
 
 But though, at this day, terms for years are multiplied to a 'much 
 longer duration than they were formerly, and there is ampk remedy to 
 recover the term itself, yet the succession continues the same : {d) for 
 besides the reason already given, it would be inconvenient to have had 
 one rule of property for short terms, and another for those that were 
 longer, being all of the same nature, and still no more than- leases for 
 years. The difficulty, also, of fixing the just, bounds to any precise 
 determinate number of years occurs, since one or two years, more or 
 less, would have made very little difference in reason, were the bounds 
 affixed to leases of never so long a continuance ; and long or short are 
 only terms of comparison, as a lease for forty years is long with respect 
 to one of eight or ten years, and yet short with respect to another of a- 
 hundred -years ; therefore, that there might be an uniformity in the 
 law, all leases for years are held to be of less value than- estates for 
 life, as being originally of much shorter duration; and also because 
 they were under the power of the tenant of the freehold to destroy, and 
 therefore are considered only as chattels, and cast upon the executor. 
 
 (a > % Bl. Com. 142. {b) Bac. Abr. Tit. Leases. 
 
 (c) 2 Bl. Com. 142. (J) Bac. Abr. Tit. Leases. 
 
 B 2
 
 4 Of the Requisites to a Lease. [Chap. I. 
 
 Sscticv II. Of the Requisites to a Lease, and hoxs 
 
 it may be made. 
 
 In everv lease it is requisite that there should be, i. A lessor able to 
 grant it. 2. A lessee capable of accepting it. 3. A subject-matter that 
 is demiseable. 4. There must also be the needful ceremonies, &c; 
 as where a freehold estate is created by lease, livery of seisin must be 
 given to the lessee ; and where a lease is for a term of years there 
 must be an entry by him. 
 
 No lease is good unless it contains a sufficient degree of cer- 
 tainty, as to its beginning and ending; though it may determine 
 prior to the period for which it is granted, in consequence of a proviso 
 or condition; and all modern leases contain a proviso enabling the lessor 
 to re-enter and determine the lease on non-payment of rent, or breach 
 of the covenants id). It is immaterial whether any rent be reserved 
 upon a lease for life, years, or at will, or not ; except only in the cases 
 of leases made by tenant in tail, husband and wife, and ecclesiastical 
 persons : of which hereafter. 
 
 By ivhat words made. — The usual words, (b) whereby a lease is made, 
 are " demise, grant, and to farm let," and whatsoever words amount/ 
 to a grant may serve to make a lease. Farm,.ferme, fearme, firma, is 
 derived of the Saxon word " feorman" to feed, or relieve ; because, in 
 antient time, they reserved upon their leases, cattle and other victual 
 and provision for their sustenance, so that a farmer, jirmarius, was one 
 who held his lands upon payment of a rent or feorme, though at pre- 
 sent, by a gradual departure from the original sense, the word " farm" 
 is brought to signify the very estate or lands so holden upon farm or 
 rent: and this word "farm," in a will is sufficient to pass a leasehold 
 estate, if it appear to have been the testator's intention that it should 
 $0 pass (r). # 
 
 Here, it may be laid down for a rule, that whatever words are suf- 
 ficient to explain the intent of the parties, that the one shall divest 
 himself of the possession and the other come into it, for such a deter- 
 minate time, whether they run in the form of a licence, covenant, or 
 agreement, are of themselves sufficient, and will, in construction of 
 law, amount to a lease for years as effectually as if the most proper 
 and pertinent wofds had been made use of for that purpose. 
 
 Thus the word " dedi" is said to be a sufficient word to make a least 
 for years (d). 
 
 So, a licence to inhabit amounts to a lease {e). 
 
 If therefore one " license" another to enjoy such a house or land from 
 
 (a) Cruis. Dig. Lease. (i) Co. Lit. 45. Ibid. 5. iB!sck.3iS. 
 
 (e) 6 T. R. Z4S- (<0 Co. Lit. 301 B. 
 
 (r) 4 Burr. 2-239. I Mod. 14. II Mud. ui, I Ld. Raym.^. 2 Salk. «>
 
 Sect. II.] and how it may be made, 5 
 
 such a time to such a time, it is a lease; (a) for it is a certain present 
 interest, and ought to be pleaded as a lease : it may, however, be 
 pleaded as a licence ; and if it be pleaded as a lease for years and tra- 
 versed, the lessee may give the licence in evidence to prove it. 
 
 The words " covenant, grant, and agree" that A. shall have the 
 lands for so many years, are apt words to make a lease for years, and 
 enure as a lease {b\. \ 
 
 The word " covenant'"' will make a lease, though the words « grant 
 snd agree" be omitted (c). 
 
 So, a covenant, " to stand seised" entered into by the owner, is a 
 lease (d). 
 
 Covenant and entry amount to a lease : but a lease merely does not 
 vest the estate in the lessee, but only gives him a right to enter and 
 possess it. 
 
 These words in an instrument, " be it remembered that < A. B. 
 hath let and by these presents doth demise, t*fc. u were held to operate 
 as a present demise ; although the instrument contained a further co- 
 venant for a future lease (e). 
 
 So, when one by articles, covenants, grants, and agrees with J. S. 
 that he shall have such lands, or have, hold, and enjoy such lands for so 
 many years, these words are sufficient to shew a present contract for 
 the lessee's enjoyment of these lands, [ f) and therefore amount to a 
 present lease of them. The difference is, where such articles by way 
 of covenant, are made by him who is owner of the lands, and where 
 they are made by a stranger, who has then nothing in the lands : in the 
 first case they amount to a present and absolute lease ; but not in the 
 other, because a man cannot be supposed to lease what he has not ; or 
 if it might be so supposed, yet when it appears in the very articles 
 that he has nothing in the lands, his covenant then can have no other 
 construction, but that he will procure the owner of the lands to permit 
 tJK covenantee to hold and enjoy those lands. 
 
 It is, indeed, settled, that words in an agreement " that A. shall 
 hold and enjoy, &c." if not accompanied by restraining words, operate 
 as words of present demise (g). 
 
 A memorandum was entered into, whereby A. agreed to let, and B. 
 agreed to take a piece of land for a certain term, at the yearly rent, &c. 
 And for and in consideration of a lease to be granted, B. agreed to lay 
 out a sum of money in building, and A. agreed to grant a lease when 
 the houses were covered in, and B. to take such lease. " The agree- 
 ment to be considered binding till one fully prepared could be pro- 
 duced." This was held to amount to an actual demise ; the intention 
 appearing to be that the tenant, who was to expend so much capital 
 
 (a) Bac. Abr. Tit. Ltajes. (i] Cro. Jsc. 91. (e) a M<x>. 80. 
 
 (0 3 Burr. 1446. (*) 5 T. R. i6,j. (/) Crc.Jac. 173. Cro. Car. zc?, 
 
 Cf) 5 T. R. 1 6 j.
 
 6 Of the Requisites to a Lease, [Chap. I. 
 
 upon the premises within a given time, should have a legal interest in 
 the term ; though when a certain progress was made in the buildings a 
 more formal lease, in which the premises might be more fully de- 
 scribed for the convenience of underletting or assigning might be exe- 
 cuted a). 
 
 So where one agreed to let, and also upon demand to execute a lease 
 of a farm, Sec. which leas? was to contain the usual covenants, &c. 
 but it was stipulated that the agreement should be binding until the 
 lease should be executed . — it was held to be a present demise, the 
 agreement for a future lease with further covenants being for the better 
 security of the parties (b). 
 
 A paper writing was entitled " Memorandum of an Agreement be- 
 tween A. and B. and signed by them, expressing that in consideration 
 of 40/ A doth agree to let, and B doth agree tc take a messuage, &c. 
 at 40/. per annum rent, and it is fu ether agreed that A shall not raise 
 the rent nor turn out B. so long as the rent is duly paid quarterly, and 
 he does not sell any article injurious to A. in his business :" though the 
 terms do not exclude the construction of actual demise, yet the import 
 of the whole looking to some future instrument, and a more permanent 
 interest, than from year to year, a demurrer to a bill, for specific per- 
 formance against A. who had succeeded in an ejectment, was over- 
 ruled {c). 
 
 A deed that the person shall " hold and enjoy the premises from 
 seven years to seven years, for and during the term of forty-nine 
 years," with a proviso " that it shall be void en payment of so much 
 money," though intended only as a collateral security , amounts to a 
 present lease {d,. 
 
 One made his will in this manner : " I have made a lease to J. S. 
 for term of twenty-one years, paying but 20x. rent ;" this was held a 
 good lease, or demise by will, for twenty one years ; and that the word 
 ** have" should be taken in the present tense, as dedi is in a deed fcf 
 feoffment, to comply with the intent of the testator [e). 
 
 A devise of " the issues and profits" of land passes the laud itself; 
 for to have the issues and profits and to have the land is all one (/). 
 iQud-re, Would net it be the same of a lease by such WGrds, as they 
 would be tantamount to « enjoy," especially if a rent were reserved?] 
 
 So, if a grant be made of a boilery of salt, the land passes, for 
 that is the whole profit (g\ 
 
 Any one may now lease or convey his land, and reserve to himself 
 the right of entering to kill game without being subject to be sued as a 
 trespasser. 
 
 Articles by which " it is covenanted and agreed that A. " doth let the 
 
 [a) iaEast.R. 171. (L) % j East. R. 444. (c) 14 Vez. 156. 409. 
 
 ( ( /) Cro. Jac. 17a, 2 Mod. 8, (0 Bac. on Leases, 163. 
 
 {/) i Cro. Eliz. 19c. Cf) Co. Lit. 4 h.
 
 Sect. II] and how it may be made. 7 
 
 said lands, &c." amount to an immediate lease (a) and a proviso 
 that the lessee " shall pay to the said A. annually, &c." is a good reser- 
 vation of rent, and not a condition: one of the judges, however, held 
 it to be a reservation and a condition also ; as in another case, where 
 a proviso joined with words of covenant made it a condition and a 
 covenant also. 
 
 So, an agreement to grant a lease, whereby the lessor did let and set 
 for twenty-one years from a future day, shall be a lease in prasenti, if the 
 circumstances shew the party's intent so to be (b). 
 
 But although no specific words are necessary to create a lease, yet 
 there must be words used which shew an intention to demise. 
 
 Therefore where a lessee of tithes agreed with the owner of lands, 
 for certain collateral considerations, not to take tithes in kind from 
 the tenants of their lands for twelve years, but to accept a reasonable 
 composition not exceeding 3.C 6d. per acre ; this was adjudged to be no 
 lease : (c) for 1st, the rent affected to be reserved is uncertain ; under 
 this agreement it is at the option of the party either to pay tithes in 
 kind, or to tender the reasonable value of the tithes, which may be 
 under 2 s ' 6d. per acre ; 2dly, the owner of the lands, the person with 
 whom the agreement is made, is neither to enjoy any thing nor pay 
 any rent ; it cannot therefore be a demise to him. It can, at the ut- 
 most, amount to no more than a mere covenant with A. that B. shall 
 enjoy, and creates no lease to either. 
 
 So, where articles were drawn between A. and B. in this manner : 
 (d) Articles agreed upon, &c. Imprimis, A. doth demise such a close 
 to B. to have it for forty years, and a rent reserved with a clause of 
 distress, &c. In witness whereof, l5c. And afterwards was written 
 on the same paper a memorandum, that these articles are ordered by 
 counsel of both parties, according to due form of law ; here be- 
 cause the intent of both parties appeared by that memorandum, and by 
 a lease actually drawn by counsel, but never sealed, (upon some dis- 
 agreement between the parties,) it was ruled by the court, upon evi- 
 dence in ejectment, that these articles were not a sufficient lease, and 
 the jury found accordingly. 
 
 So, where one made a lease for life, tsf provisum est, that if the 
 lessee die within sixty years, then his executors and assigns, should 
 enjoy the land in his right for so many years as should be behind of 
 the sixty years from the date of the lease ; this was held to be only a 
 covenant and no lease ; (e) for which divers reasons are assigned in the 
 books ; the best however seems to be, that he having in the first part 
 of the deed made a lease in express and proper words, must be sup- 
 
 (a) Cro. Eliz. 486. 385. Cro. Car. 207. S. C. 
 
 (£) 2 Bl. Rep. 973. (.-) Anstr. 413. 
 
 (rf) Bac. Abr.tit. « Leasei," (K.) (*) Ibid,
 
 & Of the Requisites to a Lease, [Chap. I. 
 
 posed to mean something less in the last part of the deed, which varies 
 so widely in the form of expression, and which has a natural and 
 proper meaning of its own as a covenant, but cannot amount or come 
 up to a lease, without violence and force done to the words, as well as 
 the intent of the parties. This seems the more probable, because it is 
 held clearly, that if it had been provided that if the lessor die within sixty 
 yetrs, that then he demised the land to another, (who was also a party 
 to the deed ) for so many of the sixty years as should be then to come, 
 this would be a good lease ; for here he cornes into the very same form 
 of expression made use of in the first part of the deed, which was an 
 actual demise, and therefore must be supposed to mean the same thing 
 in the latter part too, and consequently such words would make it an 
 actual demise. 
 
 In cue case it is said, that though a grant " to have and to hold" 
 land for years be a good lease, yet a grant to " enjoy" lands in the 
 same manner is but a covenant ; [a) [but unless it be with reference to 
 a stranger, it is conceived that this opinion is erroneous, if the case 
 itself be rightly reported.] 
 
 For, a covenant « that a stranger shall enjoy such land for so many 
 years at such a rent," does not amount to a lease, but a covenant [b). 
 
 It is said also, that a covenant " that he shall permit the covenantee 
 himself to hold the land fcr so many years,*' does not amount to a 
 lease; for it sounds only in covenant: (c) [but this seems doubtful at 
 this day, not merely because a licence to inhabit amounts to a lease, but 
 because the intention of the parties clearly is that the one grants and the 
 other accepts a lease.] 
 
 An article (d) " that he is content A. shall have a lease for six years, 
 that the rent shall be 10/." does not amount to a lease; for k ap- 
 pears to be only instructions for a lease. 
 
 •So, " I agree to let my land," this is no lease (e). 
 
 So, an agreement or covenant made between A. and B. that C. shall 
 have such land for years -, this being made between strangers, cannot 
 amount to a lease if). 
 
 So, if A. covenants with B. that his executors shall have suc?i land 
 for twenty-one year:-, this cannot amount to a lease 'g). 
 
 A Lease ; how made. — A lease may be made, either, i. by deed; 
 2. by writing without deed; or 3. by parol demise. 
 
 A deed is a writing scaled anil delivered by the parties. Deeds 
 are either deeds poll, or deeds indented. The former are com- 
 monly used where the granting party only seals, and there is no need 
 of the other party's sealing a counterpart, the nature of the trans« 
 
 (..-) Cro. Jac. 17;. (/■) Com. Dig. tit. Estates (G, I.) (V) Ibid. 
 
 {<i)\h\d. (A Cro.Eliz 156. (/) IbiJ. I?5. 
 
 (g) Ibid.
 
 Sect. II.] and how it may he made, <) 
 
 action requiring no covenant from him. It can therefore rarely happen 
 that a lease is made by deed poll •, since leases generally contain a variety 
 of mutual covenants.— When a lease is granted by indenture, two 
 parts or copies are made, one of which is executed by the lessor, and 
 delivered to the lessee, and is called the engine. 1 ; the other is executed 
 by the lessee, and delivered to the lessor, and is called the counterpart. 
 Sometimes each part is executed by all parties, which renders them 
 both originals. 
 
 As every lease is presumed to be by deed, till the contrary be shewn, 
 60 every deed that is pleaded shall be intended to be a deed-poll, unless 
 it be alledged to be indented [a]. Whenever a lease, therefore, is 
 pleaded as an indenture, it must be so alledged (b). 
 
 Paris of a Lease. — A lease by deed indented consists of the following 
 parts : I. the premises ; 2. the habendum and tenendum • 3. reddendum, or 
 reservation; 4. covenants ; and 5. provisoes or conditions. 
 
 The premises of a lease are all the parts that precede the habendum (c). 
 The office of this part of the lease is rightly to name the lessor and 
 lessee, and to comprehend the certainty of the thing demised, either by 
 express words, or by that which by reference may be reduced to a 
 certainty •, and the exception, or thing excepted, if there be any. The 
 recital also, if there be any, is for the most part contained in the 
 premises. 
 
 (d) A lease to one for life habendum to his three sons successively, but 
 omitting to mention the sons in the premises of the deed, was held to 
 be for the life of the father only, and that the sons should not take in 
 possession or by way of remainder : lor it being limited to the father for 
 his life, that was a greater estate than for the lives of others; and the 
 three sons were named as persons to have an estate, and not to make a 
 limitation of an estate. 
 
 The habendum et tenendum is that part of the lease, (e) which begins 
 with " to have and to hold," and properly succeeds the premises. The 
 office of the habendum is to name the lessee, and to limit the certainty 
 of the estate. It may also abridge or alter the generality of the pre- 
 mises (f ). The habendum, in short, limits, enlarges, ascertains, and 
 fixes, the meaning of the premises, but it cannot contradict them. The 
 ■tenendum was formerly used to denote the lord of whom, and the tenure 
 by which, the estate was to be holden, which has long been unnecessary ; 
 it is retained merely by custom. 
 
 If a man have a lease for years of land, and he, reciting this, by the 
 premises of the deed grants all his estate in the land, to have and to 
 hold the land or the term after his death, or for part of the time only ; 
 
 (a) i Str. S55- (A) Cro. Eiiz.658. (0 Shep. Touch. 75. 
 
 (d) Cro. Eliz. 58. (,-; Shep. Touch. 7;. Com. Dig. tit. Fait. (E.9.) 
 
 (/) Lofft. 191.
 
 10 Of the Requisites to a Lease, [Chap. I. 
 
 in this case the habendum is void, and the whole estate passes imme- 
 diately by the premises (a). 
 
 An exception is a clause in a deed, whereby the lessor excepts some- 
 thing out of that which he has granted before by the deed : and being 
 the act and words of the lessor, shall be taken strictly against him (b). 
 But [c) where an exception does not defeat the grant, or is contrary to 
 it, it must stand. In every good exception, these things must always 
 concur ; i. the exception must be by apt words, as " saving and ex- 
 cepting," £sV. 2 it must be of part of the thing demised, and not of 
 some other thing ; 3. it must be part of the thing only, and not of all, 
 the greater part, or the effect of the thing granted : an exception there- 
 fore, in a lease, which extends to the whole thing demised, is void ; (d) 
 4. it must be of such a thing as is severable from the premises demised, 
 and not of an inseparable incident ; 5. it must be of such a thing as he 
 that doth except may have, and which properly belongs to him. It must 
 be of a particular thing out of a general, and not of a particular thing 
 out of a particular thing ; 6. it must be certainly described and set 
 down : therefore, if one demise a manor excepting one acre, without 
 setting forth which, or what acre it shall be, the exception is void. 
 But (Y> if a man be possessed of a new house and an old house, and 
 make a lease with an exception of the new house for the use of the 
 lessor when he pleases to reside there, and at other times for the use of 
 the lessee, the new house is well excepted ; which exception is not 
 avoided by the words " at all times to be used by the lessee, when the 
 lessor doth not dwell there," for that sentence doth not enure as an ex- 
 ception 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 during life, it is void ; 
 or if a man having a term of two houses for certain years, grant his 
 houses, excepting one of them, for life, this exception is void ; for the 
 words " during life," qualify the exception, and shew his intent that 
 the one house shall not be excepted during the whole term, and so is 
 void (/). 
 
 The reddendum or reservation is a clause in the lease, whereby the 
 lessor reserves some new thing to himself out of that which he granted 
 before : (g) and this commonly and properly succeeds the tenendum, and 
 is usually made by the words " yielding and paying," and such like, 
 in every good reservation, these things must always concur : 1 . it must 
 
 (..) Shep. Touch. 114. 1 Salk. 346. S. P. (i) Shep. Touch. 77. 
 
 (,-) 1 a Mod. 15. Dyer 264. I. Hob. 173. (J) Cro. Eliz. 6. 
 
 CO 3 Salk. 156. 4 Med. 11. Si. C. (/) izMcd. 15. 
 {g) Shep. Touch. 80.
 
 Sect. II.] and how it may he made. \\ 
 
 be by apt words ; 2. it must be of some other thing issuing or coming 
 out of the thing granted, and not a part of the thing itself, nor of some 
 thing issuing oui of another thing; 3. it must be of such a thing 
 whereunto the grantor may have resort to distrain •, 4. it must be made 
 to one of the grantors, and not to a stranger to the deed. 
 
 A covenant is a clause of agreement contained in the lease, whereby 
 either party is bound to do, perform, or give something to rhe other. 
 
 A condition, or proviso, is a clause of restraint in the lease, which is 
 commonly expressed by the words « provided," or "provided always," 
 or words similar [a). 
 
 Formalities requisite.— It is requisite that the respective parties, the 
 lessor and lessee, whose deed the lease is, should seal, and now in 
 almost every case, sign it also: an instrument not under seal, is no deed, 
 for a seal is essential to a deed (b ). The neglect of signing, and 
 custom of resting only on the authority of seals, remained very long 
 among us ; for it was held, in all our books, that sealing alone was suf- 
 ficient to authenticate a deed. The common form of attesting deeds, 
 " sealed and delivered," continues in great measure to this day ; not- 
 withstanding that the statute 29 C. 2 c. 3. commonly called " The sta- 
 " tute of Frauds and Perjuries," revives the Saxon custom, and ex- 
 pressly directs the signing in all grants of lands and many other species 
 of deeds : in which, therefore, signing seems to be now as necessary 
 as sealing, though it has sometimes been held that the one includes the 
 other. 
 
 The lease must also be delivered, either by the parties themselves, or 
 their certain attorney or attornies, which delivery is also expressed in 
 their attestation " sealed and delivered/ 1 for delivery makes it a lease (c). 
 Almost (d) any manifestation, however, of the party's intention to de- 
 liver, if accompanied by an act importing the same, will constitute a 
 delivery. If the date be false or impossible, the delivery ascertains the 
 time of it. If another person seals the deed, yet if the party delivers it 
 himself, he thereby adopts the sealing, and, by a parity of reason, the 
 signing also, and makes them both his own. Every deed shall be in- 
 tended to be delivered on the day it bears date, unless the contrary be 
 proved. 
 
 The last requisite is the attestation or execution of the lease in the 
 presence of witnesses, though this is necessary rather for the preserva- 
 tion of the evidence, than to constitute the essence of the deed. Ever 
 since the reign of Henry VIII. the witnesses have usually subscribed 
 their attestation, either at the bottom or on the back of the deed : but 
 such actual subscription by the witnesses is not required by law, though 
 it is prudent for them so to do in order to assist their memory when 
 living and to supply their evidence when dead. A party (e) who has 
 
 (a) Co. Lit. 35. (b) 2 T. R. 695. 2 Bl. Com. 297. 3 Inst. 169. 
 
 (<■) Co. Lit. 36. a El. Com. 307. (/) i Yes. jun, 206. 
 
 ,(<•) 1 Es P . R. 89. Doug, si 6. 7 T. R, 267.
 
 12 Of the Requisites to a Lease, [Chap. I. 
 
 executed a lease shall not be permitted to acknowledge it, but it must 
 be proved by the subscribing witness : and a subscribing witness to any 
 instrument may be compelled to give evidence respecting u ; for the per- 
 son by subscribing his name as a witness, undertakes to give evidence at 
 a proper time, and in a proper manner ; and if he deny the deed, other 
 witnesses may be called to prove it (a). But proof of the hand-writing 
 of the contracting party may under some circumstances be sufficient, 
 even where there is a subscribing witness; as if no intelligence can be 
 obtained respecting the subscribing witness after reasonable inquiry has 
 been made (b). Generally speaking, however, every instrument, whether 
 under seai or not, the execution of which is witnessed, must be proved in 
 the same manner, regularly by the witness himself, if living; if dead, by 
 proving his handwriting; if residing abroad, by sending out a commis- 
 sion to examine him, cr at least by proving his hand writing, which last, 
 indeed, is a relaxation of the old rule and admitted only of late years. 
 
 A lease by deed may be avoided or rendered of no effect, if it wants 
 either I. proper parties and a proper subject matter; (c) 1, writing, (or 
 printing) on paper or parchment duly stamped; 3. sufficient and legal 
 words properly disposed ; 4. reading, if desired, before the execution [d] 
 for not reading a deed to a person in the rough draft, nor in the engross- 
 ment before execution, is a badge of fraud; 5. sealing, and by the statute 
 of Frauds, in most cases, signing also; or 6. delivery (e). Without these 
 essentials it is void ab initio. It may also be avoided by matter ex post facto: 
 as 1. By erasure, interlineation, or other alteration in any material part (f). 
 If a deed be altered by a stranger, in a point not material, this does not 
 avoid the deed ; butotherwife, if it be altered by a stranger in a point ma- 
 terial, 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 consequently 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, yet it avoids it, [unless a memorandum 
 thereof be made at the time of the execution and attestation. 2 Bk 
 Com. 308.] for the law takes every man's act most strongly against 
 himself. So, if there be several covenants in a deed, and one of them 
 be altered, this destroys the whole deed; for it cannot be the same, 
 unless every covenant of which it consists be the same also. 2. By 
 breaking off, or defacing the seal, unless, indeed, it be done by accident. 
 Thus, on an indenture to guide the uses of a common recovery 
 being offered in evidence, with the seals torn off, yet, it being proved 
 to have been done by a little boy, the indenture was allowed to be read. 
 3. By delivering it up to be cancelled; that is, to have lines drawn over 
 it in the form of lattice work, or cancelli, though the phrase is now used 
 figuratively for any manner of obliterating or defacing it (g). 4. By the 
 
 (a) 10 Mod. 32^ 1 Str. 1. S. C. Cowp. 845. Bull. N. P. 284. 
 
 (*) Doug. 116. 7 T. R. 266. (0 a Bl. Com. 308. {J) 2. Ark. 3*7. 
 
 (<•) Cro. Car. 399. Bull. N. P. 267. (/) 2 Str. 11 6c, {g) 2 IiL Cim - l 3i "
 
 Sect. II. ] and how it may be made. jj 
 
 disagreement of such whose concurrence is necessary in order for the 
 deed to stand : as the husband where a feme-covert is concerned • an 
 infant, or a person under duress, when those disabilities are removed- 
 and the like (a). 5. By the judgment or decree of a court of judica- 
 ture. This was antiently the province of the court of Star Chamber, 
 and now is that of the court of Chancery; and is exercised when it 
 appears thr.t the deed was obtained by fraud, force, or other foul prac- 
 tice, or is proved to be an absolute forgery ; in any of which cases, the 
 deed may be avoided either in part, or totalIy 3 according as the cause of 
 avoidance is more or less extensive. 
 
 The lease need not be proved in an action of debt, for the performance 
 of covenants therein ; for the party is estopped to say that the lease 
 was not duly executed (b). 
 
 Cf a Lease by writing without deed, 
 
 Although the court will presume the lease to be by deed, a lease for 
 a term of years may be created by writing without deed (c). The sta- 
 tute ^9 Car. 2. c. 3. s. 3. enacts, that " No leases, estates, or interest 
 either of freehold or term of years, or any uncertain interest (not being 
 copyhold or customary interest) of, in, to, or out of any messuages, Sec. 
 fchall be assigned, granted, or surrendered, unless by deed or note in 
 /writing, signed by the party so assigning, granting, or surrendering the 
 same, or their agents thereunto lawfully authorized by writing, or by 
 act and operation of law." 
 
 In the case 'd) of Fry and Phillips, one Jones granted a lease for 99 
 rears, if three persons should so long live. The executrix of the grantee 
 assigned to one Peninton by indorsement on the lease in these words, 
 " I assign all my title, &c. to Mr. Thomas Peninton, for six guineas ;" 
 which writing was neither sealed, delivered nor stamped. Peninton 
 entered, and exactly in the same manner assigned to one Fry who 
 entered and was possessed ; but in 1756 gave up the possession. The 
 executrix of the grantee was then dead. Her executor had never entered 
 cr done any act of ownership: but in 1770, he regularly assigned to 
 Fry : at that time, however, Phillips was in possession under a grant 
 from Jones, made by him on Fry giving up the possession. The ques- 
 tion for the opinion of the court was, « Whether any thing passed to 
 Fry by the last assignment made to him by the executor of the execu- 
 trix of the grantee, which executor himself never was in possession ?" 
 which question the court did not determine; because, upon the whole 
 of the case, Fry had a right. Lord Mansfield told the counsel that a 
 point had occurred to the court which had not been mentioned in the 
 argument. If the indorsement by the executrix carried a legal interest 
 in the term to Peninton from Elizabeth French, and Peninton* $ indorbe- 
 
 («) s Bl. Com. 309. (J) 1 Esp. R. 15S. 0) 1 Str. -55. ; Wils. 36. (J) 5 Bur. 2847.
 
 14 Of the Requisites to a Lease, 8$c. [Chap. T. 
 
 ment to Fry had a like effect, then Fry had the whole lease in him ; and 
 by the statute of Frauds, 29 C 1 c 3 x 3. it may be assigned by a note 
 in writing; and such a note in writing need not be either sealed, deli- 
 vered, or scamped, as a deed must. His Lordship mentioned a case in 
 the Common Pleas, Trinity term, 1755, between Farmer and Rogers, in 
 which it was resolved, " that by the statute of Frauds and Perjuries a 
 lease for any term of years may be created by writing without deed, and 
 that the same may be surrendered by deed or note in writing : and the 
 court held that there was no occasion for any stamp duty upon the note 
 or indorsement, it not being by deed: [which however is now rendered 
 necessary, it should seem, by stat. 23 G. 3. c. 58.] So, in the present 
 case, the legal interest in this term might be assigned by a note in 
 writing. Mr. Justice Aston was of the same opinion. Elizabeth French, 
 by writing under her hand, indorsed on the back of the indenture, 
 assigned to Pcninton. This writing was neither sealed, delivered, nor 
 stamped. Pcninton entered and then assigned in the same manner to 
 Fry. The executor of Elizabeth French had nothing to convey. — Lord 
 Man:jield. The court must take the whole of what is stated in the 
 case, and upon the whole of the case the plaintiff has a right. 
 
 Of a Lease by Parol Demise. 
 
 A lease may likewise be made by parol demise, or verbal contract: 
 with respect to which, by the before-mentioned statute, 29 C. 2. c. 3 . 
 commonly called the statute of Frauds and Perjuries, several things 
 must be evidenced by writing, of which, before that statute, parol evi- 
 dence had been sufficient. 
 
 By that statute, all leases, estates of freehold, or term of years, cre- 
 ated by parol and not put into writing and signed by the parties making 
 the same, or their agents thereunto lawfully authorized by writing, 
 shall have the effect of estates at will only ; except leases not exceeding 
 three years from the making, whereupon the rent reserved amounts to 
 two thirds of the improved value; and no such estate or interest shall 
 be granted or surrendered but by deed, or note in writing. 
 
 The meaning of the statute was, that such an agreement should not 
 operate as a term (a). — A parol agreement, therefore, to lease lands for 
 four years, creates only a tenancy at will : but what was considered as 
 a tenancy at will at the time when the act passed, has been since pro- 
 perly construed to enure as a tenancy from year to year. 
 
 So, a general parol demise at an annual rent, where the bulk of the 
 farm is enclosed, and a small part of it lies in the open common fields, 
 is only a lease from year to year, and not for so long as the usual course 
 of husbandry extends [b). 
 
 A lease for three years, to tommence in futuro by parol, is not war- 
 ranted by the statute of Frauds (c). 
 
 («)8T. R. 3. 3 T. R. 16. 4T. R. 680. (0»Bl.Rcp. 1171. 
 
 („-; 12 Mod. 6io. 2 Ld. Raym. 736.
 
 Sect. III.] Of registering Leases. 15 
 
 But a lease by parol for a year and a half, to commence after the ex- 
 piration of a lease which wants a year of expiring, is a good lease within 
 the statute ; for it does not exceed three years from the making a\ 
 
 If land be leased to A. for a year, and so from year to year as long as 
 both parties shall agree, this is a lease for two years certain ; and if the 
 lessee hold on after two years, he is not a lessee at will, (as the old opi- 
 nion was^ but for a year certain, and his lease is not determinable till 
 that year be ended ; for his holding on is an agreement to the original 
 contract : and such executory contract is not void by the statute of 
 Frauds, for there is no term for above two years ever subsisting at the 
 same time ; and there can be no fraud to a purchaser, for the utmost 
 interest that can be to bind him can be only for one year. But if the 
 original contract were only for a year at 8/. per ann. rent, without men- 
 tioning any time certain, it would be a tenancy at will after the ex- 
 piration of the year •, unless there was some evidence, by a regular pay- 
 ment of rent annually, or half yearly, that the intent of the parties was 
 that he should be enant for a year b). 
 
 If a landlord lease for seven years by parol, though the lease be void 
 by the statute of Frauds, as to the duration of the term, the tenant 
 holds under the terms of the lease in other respects, as to the rent, the 
 time of the year when the tenant is to quit, &c. (c). 
 
 So where the tenant holds over after the expiration of his term 
 without having entered into any new contract, he holds upon the 
 former terms d ':. 
 
 Section III. Of registering Leases. 
 
 The registry of deeds has been rendered necessary in particular parts of 
 the kingdom, by certain statutes passed at various periods of time, in 
 order to prevent the frauds which were practised by means of secret 
 transfers and prior mortea^es 
 
 ± o o 
 
 The statute 2 and 3 Ann. c. 4, enacts, that a memorial of all deeds 
 and conveyances made and executed in the Weft-Riding of the county 
 of Torky after September 29, 1704; whereby any honors, manors, 
 lands, &c. may be any way affected in law or equity, may, at the elec- 
 tion of the party or parties concerned, be registered in an office to be 
 kept at Wakefield, in the said Riding, for that purpose; which memorial 
 must be written and directed to the register of the said office ; and must 
 be under the hand and seal of some or one of the grantors, or grantees, 
 his or their guardians or trustees, attested by two witnesses, one whereof 
 to be one of the witnesses to the execution of such deed or conveyance; 
 which witness shall, upon oath before the said register or his deputy, 
 
 (a) Bull. N. P. 177. 1 Str. 651. 
 
 (b) Bull. N. P. 84. Cro. Elia. 775. 3 Salk. 414. I Wils. %d%. (<) S T - R - l6z - 
 (d) 1 T. R. 16%. 
 
 3
 
 16 -Of registering Leases. [Chap. I. 
 
 prove the signing and sealing of the said memorial, and the execution of 
 the deed or conveyance therein mentioned ; and that every such memo- 
 rial shall contain the date of such deed or conveyance, and the names 
 and additions of all the parties thereto, with the places of their abode ; 
 and shall also mention the honors, manors, lands, &c. contained in 
 such deed, &c. and the names of the parishes, C5V. wherein they are 
 situated : every deed or conveyance that shall, at any time after such 
 memorial is so registered, be made and executed of the honors, manors, 
 lands, &c. or any part thereof contained in such memorial, shall be 
 adjudged fraudulent and void against any subsequent purchaser or 
 mortgagee for valuable consideration ; unless such memorial thereof 
 shall be registered as the act requires, before the registering of the 
 memorial of the deed or conveyance under which such subsequent 
 purchaser or mortgagee shall claim. 
 
 The statute 6 Ann, c. 35. contains provisions of a similar nature 
 with respect to the East-Riding of the same county, and the town of 
 Kingston-upon-Hull, and appoints the Register-office to be kept in Bever- 
 ley in the said Riding. 
 
 The statute 8 G. 2. c.6. contains provisions of a similar nature with 
 respect to the North-Riding of the same county. 
 
 The statute 7 Ann. c. 20. contains provisions of a similar nature, with 
 respect to the countv of Middlesex. The Master of the King's Bench 
 to be the Register who may appoint a deputy, both of them to be 
 under the controul of the Lord Chancellor, by whom rules may be made 
 for the management of the office, which is to be kept in or near the 
 Inns of Court or Chancery. The registers to endorse a probate of every 
 deed so registered, which certificate shall be allowed as evidence of such 
 registry in all courts of record whatsoever. Upon certificate and proof 
 made to the register that money due on a mortgage entered in the re- 
 gistry has been satisfied, the register shall make an entry thereof in the 
 margin against the enrollment. 
 
 By statute 25 G. 2. c. 4. the deputy of the chief clerk of the Kings 
 Bench, is appointed a register for Middlesex^ instead of the chief clerk. 
 
 By these statutes, deeds, conveyances, and devices by will shall be 
 void against subsequent purchasers and mortgagees, unless registered 
 before the conveyances under which they claim ; also no judgment, 
 statute, or recognizance, shall bind any lands in those counties, but 
 from the time a memorial thereof shall be entered at the Register-office. 
 But the acts do not extend to copyhold estates, leases at a rack-rent, or 
 to any leases, not exceeding twenty-one years, where the possessicn 
 goes with the lease ; nor to any chamber in the inns of court. 
 
 The intention of the register act plainly is to secure subsequent pur- 
 chasers and mortgagees against secret conveyances and fraudulent in- 
 cumbrances (a). 
 
 («) 3 Atk. 6jl,2.
 
 Sect. III.] Of registering Leases. 17 
 
 Where a person had no notice of a prior conveyance, there the regis- 
 tering of his subsequent conveyance shall prevail against the prior ; but 
 if he had notice of a prior conveyance, then that was not a secret con- 
 veyance by which he could be prejudiced. '£he enacting clause, which 
 says " that every such deed shall be void against any subsequent pur- 
 chaser or mortgagee, unless the memorial thereof be registered, &c" 
 gives them the legal estate, but does not say thaf»uch subsequent pur* 
 chaser is not left open to any equity which a prior purchaser or incum- 
 brancer may have; for he can be in no danger where he knows of ano- 
 ther incumbrance, because he might then have stopped his hand from 
 proceeding. — The operation of the register act 7 Ann. c. 20. and that 
 for the inrollment of bargains and sales 27 H. 8. and the construction 
 of them, are the same ; and it would be a most mischievous thing, if a 
 person taking advantage of the legal form appointed by an act of par- 
 liament, might under that protect himself against a person who had a 
 prior equity, of which he had notice (a). 
 
 The register act is notice to every body, and the meaning of it was 
 to prevent parol proofs of notice (£). It is only in cases of fraud that 
 the court of Chancery have broke in upon the act, although one in- 
 cumbrance was registered before another : and though clear notice is a 
 proper ground of relief, suspicion of notice will not suffice. 
 
 A registered conveyance therefore of premises in Middlesex for a va- 
 luable consideration, was established against a prior devise not regis- 
 tered ; the evidence of notice, which ought to amount to actual fraud, 
 not being found (<:). 
 
 But notwithstanding that it was said that the register act is notice to 
 every body, registration in Middlesex of an equitable mortgage was 
 held not presumptive notice of itself to a subsequent legal mortgagee, 
 so as to take from him his legal advantage ,d). 
 
 So, after an assignment of a mortgage, payments to the mortgagee 
 without notice, must be allowed by the assignee; the registry, (the 
 premises being in Middlesex) not being notice for this purpose \e). 
 
 Registering an assignment is not registering the lease. Therefore, 
 where the defendant claimed under a lease made in 1730, which was 
 soon after mortgaged, and in 173 r, sold out and out to the defendant ; 
 the original lease was not registered, but the first mortgage of it, and 
 the defendant's purchase were : and it not being a lease at rack-rent, the 
 question was, whether this was a registry within the meaning of 7 Aim'. 
 c. 20 ? and the Chief Justice [Holt) held it not to be sufficient : for the 
 act says the deed under which the party claims, with the witnesses' 
 names, shall be registered ; and of this a subsequent purchaser can have 
 no notice by the bare registry of the assignment, and it is also required 
 that the original be produced to the officer (f)» 
 
 {a) 3 Atk. 651-2. (b) 2 Atk. 275. Ambl. 436. s.C. (c) 3 Ves. jun. 478. 
 
 (<0 Ambl. 678, (,) 1 yes. jun. 589. (/) j Str. 1064.
 
 18 Of registering Leases. [Chap. I. 
 
 On a proviso in a lease of lands of the Duchy of Lancaster^ according 
 to stat. 27 //. 8. c. 11. that it should be enrolled with the auditor; 
 the certificate of the auditor on die margin was held to be sufficient 
 evidence of the enrollment (a). 
 
 If a memorial is executed by any party to a deed, resident in the 
 metropolis, whether it be grantor or grantee, and it is convenient to 
 the witness to attend at "the registering office, the oath of such execu- 
 tion is administered verbally, in, the following terms; "You swear 
 that you saw this memorial signed and sealed, and the deed to which 
 it refers duly executed by the party (or parties) thereto, whose exe- 
 cution you have attested :'' {b) and it is not necessary, in such case, 
 to affix an affidavit stamp, or any other, to the parchment on which 
 such memorial is written. But if the memorial is necessarily executed 
 by all parfies in the countrv, and there sworn, the affidavit must be en- 
 grossed on the proper stamp, and may be either written under, or an- 
 nexed to, the memorial. It must be on parchment, and its form will be 
 found among the precedents in the Appendix. 
 
 It being often found more convenient to obtain the registry of an in- 
 strument by a representative of a deceased party, under some one of the 
 designations of heir, executor, administrator, guardian, or trustee than 
 by any of the survivors, who if grantors may perhaps hesitate to do jus- 
 tice, and as the direction of the act does not convey a very distinct 
 Idea of the manner in which the registry by such representative is to be 
 effected, it may be useful to premise, that the instrument to be regis- 
 tered, notwithstanding it is already sufficiently executed for general 
 legal purposes, must, in addition, be sealed and delivered by the person 
 requiring the registry, as if he was a party in his own right ; (c) and 
 such person must also sign and seal a memorial, which will be varied 
 from the usual form where it refers to witnesses [See Appendix.] An 
 alteration in tins case is to be written under, or indorsed on the instru- 
 ment in the following terms ; " Sealed and delivered by C. D. one of 
 the executors" for otherwise) "of the within-named A. B." •£ or the 
 
 purpose of registering) " in the presence of " In respect to the 
 
 parties to deed residing out of town, if such deed appears properly exe* 
 cuted and attested, the proof of its execution, and that of the memorial 
 by any one of the parties (consonant to the form of oath contained in 
 the preceding paragraph' will render any affidavit from the country 
 useless : neither is it material that the witness should see the same party 
 execute the deed who signs and seals the memorial ; for instance, if the 
 deed be made from A. to B. and the witness attests the execution of 
 the deed by the former, his seeing the memorial executed by B. will 
 suffice. It will be requisite, however, in such memorial to state the 
 other attestation, (or attestations, if more than one) to the deed, with 
 
 (V D'.u S . ■(,. (1) Ri~ee on Restoring Deeds, 74. (c) li. ib.
 
 Sect. III.] Of registering Leases. ig 
 
 the descriptions of all the witnesses. [For more particulars respecting 
 these Acts, the reader is referred to Mr. Rigge's Observations on the 
 Statutes for registering Deeds.] 
 
 A lessee of laud in the Bedford Level cannot object to an action by 
 his landlord for a breach of covenant in not repairing, that the lease 
 was void by the stat. of 15 Car. 2d. c. 17. for want of being registered, 
 and such act enacting that " no lease Sec. should be of force, but from 
 the time it should be registered," not ave: iing it as between the parties 
 themselves, but only postponing its priov:•: , / , with respect to subsequent 
 incumbrances registering their titles before {a). 
 
 (*) tcEast. 350.
 
 [ 20 ] 
 
 CHAPTER II. 
 
 Section I. Of Agreements for Leases and the Reme^ 
 aies thereon. 
 
 Section II. Of Stamps required to Leases, and Agree- 
 ments for Leases. 
 
 Suction I. Of Agreements for Leases, and the Reme- 
 dies thereon. 
 
 T7E have already seen that where an agreement for a lease contains 
 words of present demise, and there are circumstances from which 
 it may be collected that the tenant was meant to have an immediate legal 
 interest in the term, such an agreement will amount to an actual lease ; 
 but wc shall new shew, on the other hand, that, although words of pre- 
 sent demise are used, yet if it appears on the whole, that no legal interest 
 was intended to pass, and that the agreement was only preparatory to a 
 future lease to be made, the construction will be governed by the inten- 
 tion of the parties, and the contract will be held not to amount to more 
 than merely an agreement for a lease, which equity will enforce. 
 
 Thus an instrument, setting forth the conditions of letting a farm, the 
 term to be from year to year, and the lands to be entered upon at a 
 period fixed, &c and that a lease was to be made upon these conditions 
 with all usual covenants; at the foot of which instrument the intended 
 lessee wrote, " I agree ,o take the premises at the rent of, &c. subject 
 to the covenants," was held to be an agreement for a lease, and not a 
 present demise ; there being not only a stipulation for a future lease, 
 but time being given to prepare it, before the commencement of the 
 term, and no present occupation as tenant contracted for ,a). 
 
 A. agreed to let to B. a farm at a certain rent, " and at and under 
 all usual and customary covenants, as between landlord and tenants 
 where the premises are situate." A proportionate abatement was to 
 be made out of the rent in respect of certain excepted premises. This 
 was considered, under the circumstances, as being only an agreement 
 for a lease (b . 
 
 An instrument on an agreement stamp reciting that A. in case he 
 should be entitled to certain copyhold premises on the death of B. 
 would immediately demise the same to C. declaring " that he did agree 
 to demise and let the same," with a subsequent covenant to procure a 
 licence to let from the lord, operates only as an agreement for a lease, 
 and not as an absolute demise [c). 
 
 (a) 13 East. R. 18. (i) 3 Taunt. 65. (.} 5 T. R. 163.
 
 Sect. I.J Of Agreements for Leases, 8$c. 21 
 
 So, (hough words in an agreement, that u A shall hold and er.joy, 
 foV." if not accompanied by restraining words, operate as words of 
 present demise, yet if ths y be followed by others which shew that the 
 parties intended that there should be a lease in future, they constitute 
 merely an agreement for a lease ; for the whole must depend, in this and 
 similar cases, on the intention of the parti -s {a). 
 
 An agreement to lease at a certain rent, and that the lessor should 
 not turn out the tenant so long as he paid the rent, and did not sell, 
 &c any article injurious to the lessor's business, either purports to be 
 a lease for life, and would then be void as not being creatable by parol ; 
 or if it operate as a tenancy from year to year, it must necessarily be 
 determinable by either party giving the regular notice to quit b) 
 
 Where A by agreement in writing, but not stamped, articled with 
 B to grant him a lease for twenty-one years, and B entered and con- 
 tinued in possession eighteen years, but no lease was ever tendered by 
 A. or demanded by B. the agreement was held to be a good defence in 
 an action of ejectment brought by A. fr)— This case, however, seems in- 
 consistent with the principles upon which other cases similarly circum- 
 stanced have been ruled, and has indeed been since doubted id). The 
 rule certainly does not extend to the case of a purchaser. 
 
 The trustee of a term, for the benefit of creditors, not having notice 
 of an agreement for a lease made previous to the grant of the term, 
 has been permitted to maintain ejectment against the tenant in posses- 
 sion, under the agreement, on the ground that the title of the tenant 
 being only a doubtful equity, could not be set up against the legal 
 title of the trustee e). 
 
 An agreement to make a lease is a gocd lease in equity, and a con- 
 firmation of such lease by him in remainder is a good lease. Hamilton 
 V. Lady Cardress, H. Broicn\ Cas, in Pari, by Tcmlins. 
 
 An agreement for a lease from a dean and chapter, executed by 
 the dean for himself and chapter, though signed by him only, shall 
 bind the chapter notwithstanding. Deans and chapters, for fear of 
 incurring the penalties of the restraining statutes, of which here- 
 after) have been careful of preserving the same description in their 
 leases since, as thty did before those statutes ; and possibly at the time 
 of the old leases there might be barns or antient buildings, which, after 
 such a length of time, must have been long since decayed and gone : the 
 court therefore will not decree a specific performance of covenants for 
 repairs •, but will leave the party to their action at law for the non-per- 
 formance : neither will they decree that a tenant in such case shall de- 
 liver up, at the expiration of his lease, the premises with s^ch buildings 
 upon them, when there is not the least proof that they were in being 
 at the making of the lease {/). 
 
 If an agreement be by A, B> and C. to make- a lease, and it is exe- 
 
 (a)lT. R. 739, (b) a East. 165. (*) Cowp. 437. (./) i Bro. R. 397. 
 
 (t) 1 T. R. 755. (f) Ccm. Bis- tit. Agreement, '% C 1.) 2 Atk. 44.
 
 £2 Of Agreements for Leases, [Chap. II. 
 
 cuted by A. it shall be decreed that B. and C. who were the sons of A. 
 shall execute it, though the agreement was by parol ; for it was out of 
 the statute [a). 
 
 With respect to parol agreements, it is an established rule, (b) that a 
 parol agreement, pari performed, is not within the provisions of the sta- 
 tute of Fraud-, but will be decreed to be executed by a court of equity ; 
 for where a part of the agreement is performed on one side, it is but 
 common justice that it be carried into execution, (c) Plea, therefore, 
 of the statute of Frauds to a bill for discovery of a parol agreement 
 part performed will not be allowed. So a parol agreement confessed or 
 in part executed, is binding [d). 
 
 As to what acts amount to a part performance, the general rule is, 
 [e that the acts must be such as could be done with no other view or 
 design than to perform the agreement, and not such as are merely in- 
 troductory or ancillary to it. A tender of conveyances, therefore, is 
 not part performance of an agreement; it must be something in actual 
 execution of the contract, not merely towards the execution : thus, in 
 a letter, " I will give 16,500//' answer, " I will not take less than 
 17,000/." answer returned, " I will give 17,000/." this is not an agree- 
 ment executed in writing within the statute of Frauds ( f). 
 
 Delivery of possession, however, or payment of money, is a part 
 performance of an agreement not reduced into writing : [g) for delivery 
 of possession by a person having possession to the person claiming 
 under the agreement is a strong and marked circumstance (h). 
 
 Thus, upon an agreement for the surrender of a term where the 
 lessor accepts the key, he sipall be bound to accept of the surrender {i}. 
 - — 13ut though taking possession, or such other act in pursuance of an 
 agreement, is sufficient evidence to have the agreement decreed, yet the 
 circumstance of vendees ordering conveyances to be drawn in pursu- 
 ance of a parol agreement, and going several times to see the premises, 
 and a letter from the vendor, mentioning the agreement, but not the 
 price, will not induce the court to decree a performance ; nor will 
 sending an appraiser to value the thing agreed for [k). 
 
 So in another case, it is said that where a man on promise of a lease 
 to be made to him, lays out money in improvements, he shall oblige 
 the lessor aftcrwards-to execute a lease, because it was executed on the 
 part of the lessee /}, 
 
 Therefore, (;;;) where a lessor made a verbal promise to his lessee, to 
 secure him in the possession of the premises during the lessee's life, in 
 consequence of which premise the lessee made considerable altera- 
 tions and improvements, and after the lessor's death, a memorandum 
 of this promise was found among his papers, wherein he expressed a 
 
 (a) 1 Vera. 210. (b)z Bro. R. 566. 2 At!,. 100. 2 Str. 7S3. (c) 1 Ves. 297. 
 
 (</) Ibid. 441. (0 Ambl. 586. Bro. R. 41a. (/) Lofft. 786. (g) 3 Atk. 4. 
 
 (Z>) 3 Ves. jun. 381. (/) 3 Vera. 113. 1 Atk, 12. {k) 1 Eq. Ca. Abr. 30. 
 
 (J) IVc. Cha.561. («)3 Bro. R. 149.
 
 Sect. I.] mid the Remedies thereon. 23 
 
 hope that the same would be observed, Lord Thurlow held that the 
 memorandum took the case out of the statute of Frauds, and directed a 
 lease to be made for ninety-nine years, determinable on his life. 
 
 But the bare entry of a steward in his lord's contract book with his 
 tenants is not an evidence of itself that there is an agreement for a lease 
 between the lord and one of the tenants, but mull be supported by other 
 proof <a). 
 
 Plaintiff, pursuant to a parol agreement for a building lease of Wild- 
 house, had proceeded to pull down part and build part. Before any 
 lease executed, the owner of the soil died. The defendants, his repre- 
 sentatives, knew nothing of the matter, and insisted on the statute of 
 Frauds. The Lord Keeper dismissed the bill, but on appeal to the Lords 
 in Parliament, his dismission was reversed, and a building lease decreed(£). 
 
 If there be a parol agreement for a lease for twenty-one years, and 
 lessee enter and enjoy for several (as for example, six) years, he shall 
 not, upon a bill brought to compel him to execute a counterpart for the 
 residue of the term, plead the statute (c). 
 
 For an agreement, though not in writing, being executed on one part 
 and an enjoyment accordingly, equity will not avoid it, as it has been 
 already carried into execution d). 
 
 But [e) where a bill was by a tenant of a farm for a specific perform- 
 ance of a parol agreement for a new lease, stating improvements made 
 at a considerable expence and continuance of possession after the ex- 
 piration of the old lease, and payment of an encreased rent under the 
 agreement, the plea of the statute of Frauds was ordered to stand for an 
 answer, with liberty to except. 
 
 Bill for specific performance of a parol agreement for a lease within 
 the statute of Frauds charging possession taken under the agreement 
 and other acts of part performance; plea of the statute and answer 
 not denying the acts alledged as a part performance, but stating, that 
 being advised that he entered as tenant at will, he gave notice to quit: 
 plea overruled {f). 
 
 Though the agreement be by parol, yet if it be agreed to be reduced 
 into writing, and part of the agreement is executed, but the reducing of 
 it into writing is prevented by fraud, it may be good (g). 
 
 Therefore, an agreement to assign a term and goods, and that it 
 should be put in writing, was decreed to be executed, it being part of 
 the agreement, that it should be put in writing, and part of the money 
 having been paid (h\ 
 
 So, if a lease by A. 'to B. is agreed by parol, and drawn and ingrossed 
 by the counsel of B. and afterwards -executed by A. it shall not be 
 avoided by B (*'). 
 
 (a) i Atk. 499. (5) 2 Vern. 456, 1 Eq. Ca. Abr. 21. (<.) 2 Str. 783. 
 
 (d) Prec. Ch. 519, (:) 3 Ves. jun. 378. (/) 4 Ves.jun. 91. 
 
 '(£•) 1 Etj. Ca, Abr. 19. (A) a Ch. Ca. 135, 6. 1 Vern. 151. (i)lb. 221,2-
 
 24 Of' Agreements for Leases, [Chap. II. 
 
 Bills were to have an execution of parol agreements touch- 
 ing leases of houses, setting forth that in confidence of these 
 agreements, the plaintiffs had expended great sums about the pre- 
 mises ; and it was alledged, that it was agreed, that the agreements 
 should be reduced into writing : the defendant pleaded the statute of 
 Frauds. Lord King said, that the difficulty was, that the act makes 
 void the estate, but does not say that the agreement itself shall be void ; 
 and therefore, he thought, that if that subsisted so as to entitle the 
 party to damages at Jaw, it might be decreed in equity, and directed 
 that point to be tried; but as to the improvements made,, hb Lordship 
 was clearly of opinion that for such as were of use and necessity, and 
 not merely for humour and fancy, the party was entitled to have satis- 
 faction \a). 
 
 Lease was not decreed upon expenditure in repairs and improve- 
 ments under an alledged agreement proved by one witness, the answer 
 containing a positive denial of the agreement; which denial was also 
 confirmed by circumstances. No relief upon general equity from ex- 
 penditure under the observation of the landlord by a tenant, but not 
 under any specific engagement or encouragement (b ■. 
 
 Where there is an agreement by parol, and part of it executed > equity 
 will decree specific execution of the whole ; (c) but where there is an 
 agreement by writing executed, evidence cannot supply any defect La 
 that agreement, which was intended to be part of that agreement, but 
 was not inserted in it: [unless, as is conceived, in case of fraud.] 
 
 Yet, if there is an agreement in writing for taking a house at 32/. 
 the owner to put it in repair, and afterwards a parol agreement for 40/. 
 the owner having rebuilt with the tenant's consent, and the lessee 
 brings a bill for specific performance of the written agreement, pare! 
 evidence may be given of the new agreement to rebut the equity- 
 prayed [d). 
 
 So (e ) if a bill is brought to carry into execution an agreement for the 
 lease of a house, the defendant, the lessor, shall be admitted to parcel 
 proof that the plaintiff, who wrote the agreement, omitted to make the 
 rent (which was reduced to 9/. instead of 14/. the former rent,) payable, 
 clear of all taxes. 
 
 Sealing is not necessary in order to bring an agreement out of the 
 statute of Frauds (f). 
 
 A letter takes a parol agreement out of the statute : but wherever a 
 letter is relied on as evidence of an agreement, it must be stamped before 
 it can be read ; it must also furnish the terms of the agreement, or must 
 at least refer to some written agreement in which the terms are set 
 forth (g\ 
 
 (/j) 1 Eq. Ca. Abr. ao. (I) 12 Ves. jun. 78. (c) Bunb. 65. 9 Mod. 6. (,/) 2 Ves. jun. 229, 
 (#) 3 Atk. 388. (/) Prtc. Ch. 17.. (g) % Bro. R. 34. 1 Str. 426. i Atluia.
 
 Sect. I.] and the Remedies thereon. 25 
 
 There have been cafes where a letter written to a man's own agent, 
 and setting forth the terms of an agreement as concluded by him, has 
 been deemed to be a signing within the statute, and agreeable to the 
 provision of it [a). -i 
 
 Therefore, < K b) where there was a complete agreement in writing, and 
 a person who is a party, and knows the contents, subscribes it as a wit- 
 ness only,i,he is bound by it, for it is a signing within the statute of 
 Frauds ; which was passed in order to prevent any thing depending 
 either on the mistake or the perjury of witnesses. 
 
 If there be an agreement for a lease in the county of N. where the 
 lessor usually repairs, at 30/. per ami. without saying who shall repair, 
 if it appear that the land is of greater value, it shall be decreed, that the 
 lessee shall take a lease and do the repairs, and pay 30/. per ami. without 
 deduction, except for taxes by parliament (<r . 
 
 Articles of agreement may be rectified by the minutes (d\. 
 
 But though a formal mistake in a deed may be rectified by articles of 
 which it purports to be an execution, essential additions cannot be made 
 to a conveyance from articles of whichit does not purport to be an ex- 
 ecution : nor can the transaction be rescinded by the court (e s . 
 
 The court will not relieve against a contract in writing, unless there 
 is express proof of the mistake of the intention of the parties [f). 
 
 Effect of an indefinite representation by a vendor, as that a leasehold 
 estate was nearly equal to freehold, being renewable upon a single fine, 
 may, connected with certain circumstances, be fraudulent, and form a 
 ground for rescinding the contract [g). 
 
 It has been held that if a bond is given with a penalty, a specific 
 performance shall not be decreed : for the party has relied upon the 
 penalty (h). 
 
 But this may well be doubted as a general proposition : (*j for it is 
 clear that a bill lies for a specific performance though a remedy be at 
 law; for the remedy by specific performance is superior in many cases to 
 that of damages : and a penalty has never been held to release parties from 
 their agreement, for though incurred they must perform it notwith- 
 standing (k). 
 
 Thus where a proviso was in articles for the purchase of an estate, 
 that if either party should break the agreement he should pay 100/. to 
 the other, and the defendant on being offered two years' purchase more 
 accepted it notwithstanding that agreement ; Lord Hardwicke decreed a 
 specific performance ( / ). 
 
 The constant doctrine of the court is, that it is in their discretion 
 whether they will decree a specific performance, or leave the plaintiff to 
 his remedy at law 'm). 
 
 (a) 3 Atk. 503. (b) Ibid. (c) % Vera. 231. (</) 1 Ves. jun. 456. (?) 3 Ves. jun. 184. 
 (/) 3Ves.jun. 317. {£) 14 Ves. jun. 144. (£) Ch. Ca. 188. (/) 1 Ves. jun. 541. 
 
 (i) % Atk. 371. ij) Ibid. («) Ibid. 3S9.
 
 26 Of Agreements for Leases, [Chap. II. 
 
 Specific performance of an agreement to build may be decreed if suf- 
 ficiently certain : but a general covenant to lay out a certain sum in a 
 building of a certain value cannot be so executed yd). 
 
 A. agrees for the lease of certain lands for three lives ; the lease is 
 prepared according to the agreement, except the insertion of a clause to 
 restrain the tenant from alienation without the consent of the landlord : 
 this clause being no part of the agreement, the landlord is bound to ex- 
 ecute a lease without it b . 
 
 On a covenant to build, the lessors are entitled to come into a court 
 of equity for a specific performance, but not on a covenant to repair y c\ 
 
 Specific performance may be decreed against one become a lunatic 
 since the agreement, if the legal estate is in trust es d). 
 
 In bills for specific performance, the court never gives relief where 
 the act is impossible to be done, but leaves the party to his remedy at 
 law e . 
 
 If an agreement be otherwise than certain, fair, and just in all its 
 parts, the court will not decree a specific performance f). 
 
 Specific performance will not be decreed of an agreement to renew a 
 leas;: in consideration of money previously laid out by the tenant \ such 
 promise is nudum pactum; nor will the case be varied by money having 
 been expended by him after sueh promise. — But if previous to such 
 promise, the tenant had signified his intention to lay out money, and on 
 that consideration the promise had been made, a specific performance 
 would be d creed >\ 
 
 Specific performance of articles to grant a lease to the plaintiff decreed, 
 though he had contracted to under let, contrary to those articles h). 
 
 But the court will not decree a specific performance of an agreement 
 to grant a lease, if under a clause for re-entry, the lease, when granted, 
 would be at an end by the tenant's acts; except on the ground of there 
 having been a waiver of the forfeiture, and upon an undertaking to give 
 possession when required by the court, and to pay the rent due (*"). 
 
 B. treats with A for a piece of land, intending to build a mil!, to 
 which the consent of a corporation is necessary, but A. refuses to treat 
 on condition ; B. fails in obtaining consent : this failure in his specula- 
 tion is no defence against a bill for specific performance (k). 
 
 A plea to a bill for a specific performance of an agreement for a lease 
 to the plaintiff, and for an injunction against an ejectment, that the de- 
 fendant had since the filing of the bill, taken the benefit of an insolvent 
 act, was over-ruled J). 
 
 So the bankruptcy of a person who has agreed to purchase does not 
 discharge the contract. It must be a very strong case, however, that 
 
 (a) 3 Ves. jun. 184. (l>) 1 Bro. Cas. in Pari. 334. (*) 3 Atk. 515. 3 Bro. R. 166= 
 
 (J) 1 Ves. jun 82. (,) 1 Atk. 573. (/) 3 Atk. 386. 
 
 (£) 2 Br. Ch. C. 140. 1 Eq. Ca. Abr. 18. (!>) 3 Ves. jun. 59. 
 
 (»') 1 Ves. &. Eeam.68. (*) 1 Bro. 567. (/) 16 Ves. jun. 466.
 
 Sect. I.] and the Remedies thereon. 27 
 
 will induce the court to carry into execution an agreement between 
 landlord and tenant, the estate not being executed at law, where the 
 person, who is to become the tenant, has become a bankrupt (a). 
 
 So, the court would not execute an agreement to grant a lease to a 
 man who had committed felony ib). 
 
 An agreement may be decreed to be delivered up on the ground of 
 surprise; neither party understanding the effect of it; as where there 
 was an agreement for a lease, with a covenant for perpetual renewal, at 
 a fixed rent of premises held under a church lease, renewable upon 
 fines, continually increasing. A single lease for 21 years was refused: no 
 terms of agreement for such an interest appearing ; and under the 
 circumstances permission to try the effect of it at law was also 
 denied (c). 
 
 Bill for specific performance of an agreement to grant a lease to the 
 plaintiff would, on evidence of his fraud, misrepresentation, and insol- 
 vency, have been dismissed with costs, if not compromised (d). 
 
 A lessee's bill for the specific performance of an agreement was 
 dismissed, his interest being described as 50 years, the residue of a 
 term free from incumbrances; but being, in fact, a few years only of an 
 old term, and a reversionary term from another lessor, and old incum- 
 brances not shewn (e). 
 
 A. being in insolvent circumstances suffers another person to become 
 the apparent owner of the farm (though under a secret trust for him.) 
 A- shall not have against the landlord a specific execution of an agree- 
 ment made by him with the trustee, the landlord supposing the trustee 
 to have been the rightful owner and confiding in his solvency. 1 Sche. 
 Lef. 123. 
 
 So, specific performance was not decreed where there was conceal- 
 ment on the part of the vendor {/). 
 
 Even where one partv to an agreement trifles or shews backwardness 
 in performing his part of it, (g) equity will not decree a specific per- 
 formance in his favour ; especially if the circumstances and situation of 
 the other party are materially altered in the mean time. 
 
 But the refusal of a tenant to execute a lease when tendered, declaring 
 himself satisfied with the agreement, cannot be considered as repudi- 
 ating the agreement, and is not a sufficient ground for refusing a 
 specific performance ih). 
 
 Remedies at Law. — Ii either of the parties to an agreement for a 
 lease refuse to perform the stipulations which it contains, besides the 
 relief which a bill in equity for a specific performance may afford him, 
 the party injured has one of two remedies at common law; namely, 
 an action of debt, or covenant if the agreement bs by deed, or an action 
 
 (,7) 3 Ves. jun. 255. (l>) Ibid. 169. (c) 16 Ves. jun. 72. (J) Ibid. 16S. 
 
 (e) ir Ves. jun. 337. (/) 1 Bro. 440. (g) 1 Bro. Cas. in Pari. 126, 
 
 (h) 1 Ves. jun. & Bea. 73.
 
 28 Of Agreements for Leases, [Chap. II, 
 
 of debt, or special assumpsit, if it be either by writing without deed, or 
 by parol, provided the contract be to be performed within a year from 
 the making thereof a\ 
 
 Covenant. — A covenant is the agreement or consent of two or more 
 by deed in writing, sealed and delivered, whereby either or one of the 
 parties doth piomise to the other, that something is done already, or 
 shall be done afterwards He that makes the covenant is called the 
 covenantor, and he to whom it is made, the covenantee (b). 
 
 An action of covenant lies when a man covenants with another by 
 deed to do something and dees it not ; and it lies upon a covenant in 
 any deed, whether indented or poll. But covenant does not lie upon 
 an agreement without deed; but an action upon the case, except in 
 London, where covenant lies without deed, by custom [c). 
 
 In covenant all is recoverable in damages, and those will be what 
 the party can prove that he has actually sustained j K d) therefore in cove- 
 nant it is sufficient to assign the breach in the words of the covenant. 
 
 Assumpsit.— It the agreement be by writing without deed or by parol, 
 damages for the breach of it may be recovered in an action on the case 
 upon a special assumpsit. 
 
 By the statute of Frauds V, no action shall be brought to charge, 
 l£c. upon any contract, or sale of lands or tenements, or any interest in 
 or concerning them, or upon any agreement that is not to be performed 
 within the space of one vear from the making thereof, unless the agree- 
 ment, or some memorandum or note thereof, be in writing, and signed 
 by the party to be charged therewith, or by some other person by him 
 thereunto lawfully authorized. 
 
 One contracts with the owner of a close for the purchase of a grow, 
 ing crop of grass there, for the purpose of being mown and made into 
 hay by the vendee ; this is a contrat of sale of an interest in or con- 
 cerning land, within the 4th section of the statute of Frauds, 29th of 
 Car 2. c. 3. (/). 
 
 If a party has entered into a parol agreement for a lease, and a draft 
 of it is prepared fg x , though the agreement is void under the statute of 
 Frauds, yet an indorsement by the party, referring to the draft, ad- 
 mitting the agreement is sufficient within the statute. 
 
 An action may be brought in consideration that the plaintiff will 
 make a lease according to a former agreement \h) ; for the agreement 
 is not executed till the lease is made. 
 
 So if an agreement be to assign a term of years, as well as where 
 it is for an interest created de mvo '•%). 
 
 But in an action upon an agreement to deliver possession for certain 
 considerations subject to a forfeiture on failure by either party, the 
 
 (") 29 c ---f-3- (*) Shep. Touch. 160. (c) Com. Dig. tit, Covenant, (A. 1.) 
 
 (J) Bull. N. P. 1 6 j. (<•) 29 C.a,c. 3. (/) 6ilnst, 655. (j)s Copin. 193. 
 
 U) 1 ko!l. 12. 1. 15. (/) r Vent. 361.
 
 Sect. I.] and the Remedies thereon. 29 
 
 person who was to deliver possession canndt sue for the forfeiture, 
 without shewing in his declaration a possessory title in himself ,a . 
 
 Action for money had and received on the common counts b . De- 
 fendant was possessed of a lease for years, which lie sold to plaintiff 
 for sixteen guineas, and at the time of the sale observed that it was a 
 good lease for seven years ; it turned out afterwards that the lessor was 
 tenant for life only and had no ri^ht to make a lease for a longer term 
 than his own life ; in consequence of which the plaintiff was turned out 
 of possession in two years after the assignment of the lease had taken 
 place, the lessor having died previously to the bargain between the 
 plaintiff and the defendant. The plaintiff brought this action, there- 
 fore, to recover the money paid for the lease, as paid on a consideration 
 which had failed. On Leicester objecting to plaintiff recovering on this 
 declaration, which contained only the common counts, Laurence J. re- 
 ferred to the case of Crips v Reade, 6 T R. 606 tried before him at 
 Oxford, in which a lease had been sold by one as administrator, whose 
 letters of administration were afterwards repealed, and there he per- 
 mitted the plaintiff to recover on a similar declaration, and the court of 
 King's Bench confirmed his opinion. Verdict for the plaintiff. 
 
 But a contractor for the purchase of an estate to which the title 
 proves (without collusion] defective, is not entitled to any satisfaction 
 for the loss of his bargain c) : for such contracts are merely on con- 
 dition frequently expressed, bur always implied that the vendor has a 
 good title; if he has not, the return of the deposit, with interest and 
 costs, is all that can be expected, the purchaser cannot be intitled to 
 any damages for the fancied goodness of the bargain which he supposes 
 he has lost. 
 
 An agreement, though not under seal, may be declared on specially, 
 in which case it may be said to bind the parties by its own force : or 
 the plaintiff may, in some instances, declare generally, and give the 
 written contract in evidence d). 
 
 Where money has been paid under an agreement, which has not been 
 performed, it may be recovered in an action for money had and re- 
 ceived : and though the agreement be in writing, the party need net 
 declare specially (e). 
 
 Thus (f) A. having sold certain leasehold premises to B. assigned 
 them by indenture containing a proviso that B. should not assign over 
 until the whole of the purchase money should have been paid, and B. 
 and C. covenanted for themselves, their executors, administrators, and 
 assigns, for the payment of the money. The premises having been 
 taken in execution for a debt of B who had not paid the purchase - 
 money, were sold by the sheriff to D. who paid down the deposit, and 
 
 (j) Doug. (> 23. (£) Matthews v. Hollings. Cor. Lawrence, J. at Shrewsbury, Ox. runic 
 
 Cir. M.S. S. (c)z Bl.R. ic;8. (J) 6 T. R. 319. 
 
 (•} 2 Esp. R. 639. (/) 3 Eos, & VmI 181.
 
 20 Of Agreements for Leases, §c. [Chap. II. 
 
 agreed to complete the purchase on having a good title : held, that the 
 non-payment of the purchase-money by B. was a sufficient objection to 
 the title, and that D. might recover back his deposit in an action for 
 money had and received. 
 
 A. (a) agreed with B. to let him land rent-free, on condition that A. 
 should have a moiety of the crops ; while the crop was on the ground 
 it was appraised for both parties ; A. declared in indebitatus assumpsit for 
 a moiety of the crop sold to B. without staring the special agi-eement : 
 and it was held that he might well do so, as the special agreement was 
 executed by the appraisement, and the action arose out of something 
 collateral to it. Semb. such an agreement need not be in writing, under 
 the statute of Frauds. 
 
 A. (b) agreed in consideration of 10/. to let a house to B. which A. 
 was to repair and execute a lease of within ten days ; but B. was to 
 have immediate possession, and in consideration of the aforesaid, was 
 to execute a counterpart and pay the rent. B. took possession and paid 
 the ic/. immediately; but A. neglected to execute the lease and make 
 the repairs beyond the period of the 10 days, notwithstanding which B. 
 ctill continued in possession ; held that B. could not by quitting the 
 house for the default of A. rescind the contract and recover back the 
 10/., in an action for money had and received ; but could only declare 
 for a breach of the special contract. 
 
 A. (c) agreed to under-let his house to B. the latter paying for the 
 furniture at an appraisement •, A. at the time that he quitted the house, 
 was in arrear for rent to his landlord : held therefore that B. was excused 
 from the performance of the agreement, for the furniture would be 
 liable to be distrained for the rent due by A. 
 
 In an action [d. of assumpsit for non-performance of a contract for 
 the sale of a house with counts to recover back the deposit, the plaintiff 
 having in his first count alledged that the defendant who was to make 
 a good title, had delivered an abstract which was " insufficient, defec- 
 tive, and objectionable," the court obliged the plaintiff to give a parti- 
 cular of all objections to the abstract arising upon matters of fact j for 
 the party ought to specify every matter of fact which he meant to rely 
 upon at the trial. 
 
 A case (e) was sent to a jury by way of inquiry of damages by the 
 court of Chancery ; where it appeared that the parties who applied to 
 the court for a specific performance of an agreement, had by their 
 committee and surveyor, viewed without complaint, the progress of 
 the party in repairing premises which they at last insisted on being 
 rebuilt. 
 
 A purchaser discovering an incumbrance, may retain so much for it 
 as remains in his hands ( f). 
 
 {a) i Bos.& Pul. 367. (&) J East, 557. (c) 3 Bos. & Pul. 172. 
 
 (V Ibid. 246. (#)aAtk.5i7. (/) iVes. 88. 
 
 4
 
 Sect. II.] Of the Stamps required, eye. 31 
 
 Section II. Of the Stamps required to Leases and Agree- 
 ments, 8$c. 
 
 A lease must be stamped as a lease by deed, though it be not by 
 deed ; for though not by deed, it falls within the words of the act that 
 requires a stamp to leases, enumerated among other specialties. The 
 statute 23 G. 3. c. 58. which imposes a stamp duty on " indentures, 
 leases, and other deeds," applies to every instrument that operates as a 
 lease, whether it be by deed or not ; for the imposition of a duty is a 
 mere matter of positive institution ; and as a lease, by whatever means 
 constituted, falls within the words, there is nothing in the nature of 
 the thing to take it out of them (a\ 
 
 A deed is good though executed before it be stamped, provided that 
 when it is offered in evidence it be stamped, and with the proper stamp 
 appropriated to the particular instrument [b). — The author remembers, 
 however, Lord Ehlon, when Chief Justice of the Common Pleas, to 
 have spoken of an objection having been taken to an agreement being 
 received in evidence, not being stamped, whereupon it was stamped 
 during the trial, and then offered in evidence ; but it was again objected 
 to, as not being stamped at the time the cause or action arose. 
 
 Whether or not the instrument were valid, by the revenue being 
 satisfied in point of amount of duty, though the particular stamp or 
 stamps were not used, was a point on which the court had, at different 
 times, held contradictory opinions. The most recent determinations, 
 however, went to invalidate any instrument that had noc been stamped 
 with thepeculiar stamp appropriated to it. 
 
 Thus it was holden, that articles of agreement under seal could not 
 be given in evidence unless stamped with a deed stamp, although the 
 agreement stamp was of the same value but differently formed : Lord 
 Kenyon observing, that it was absolutely necessary that the distinct! 1 of 
 the several stamps should be preserved in courts of justice,- as long as 
 that distinction is kept up by the legislature; and that it had often 
 proved the means cf detecting forgeries, by comparing the stamp on 
 forged instruments with those in use at the time (c). 
 
 On the same principle it was held <d) that a promissory note, written 
 upon a stamp of greater value than the proper stamp required, could not 
 be given in evidence, though the stamp were applicable to the same 
 kind of instrument. In this case also Lord Kenyan said, However much 
 it were to be wished that an ad valorem stamp would suffice in such 
 cases, yet till the legislature so declare it, no other than the particular 
 stamp, appropriated by the law to the particular instrument, can be 
 
 {a) i T. R. 737. 3 Burr. 1563. (J>) 1 Str. 614. % Str. 716. 
 
 (V) 6T. R. 319. (d) 1 East's R. 57.
 
 32 Of the Stamps required [Chap. II. 
 
 deemed sufficient ; for the words of the stamp acts were express, and 
 could admit of no other interpretation. 
 
 His Lordship's suggestion of the propriety of an ad valorem stamp 
 has not escaped the attention of the legislature: for by stat. 43 G. 3. 
 c. 127. which recites that, Whereas it is expedient to 1 revent the mul- 
 tiplication of stamps upon pieces of vellum, parchment, or paper, or 
 other instruments, matters, or things, on which several rates are by 
 several acts of parliament imposed, it is enacted that it shall be lawful 
 for the commissioners for managing the said duties, instead of the dis- 
 tinct stamps directed to be provided to denote the several duties, to 
 cause one new stamp to be provided to denote the said several rates and 
 duties from time to time as they shall think needful, and to renew or 
 alter the same as occasion shall require, s, 1. 
 
 And instruments not having the stamp of the proper denomination 
 and value, though of equal or greater value, may be stamped without 
 payment of the. 5/. penalty imposed by the 37 G. 3. c. 136. — s. 5. 
 
 And it is further enacted, That every instrument, although stamped 
 with any stamp of greater value than that required by law, shall be 
 valid, provided such stamp be of the denomination required for such 
 instrument, s. 6. 
 
 Though a parol lease for three years is good, yet if a man, through 
 caution, will reduce it into writing, he must pay for the stamp, other- 
 wise the court are inhibited from receiving it in evidence (a). 
 
 But where a party enters and continues in possession of premises for 
 any long space of time, as for eighteen years, under articles of agree- 
 ment for a lease, which were not stamped, and no lease ever tendered 
 or demanded, the agreement was held to be a good defence against an 
 ejectment ; for though it is in law a lease, and therefore ought to be 
 stamped, it would be set up in equity as an agreement : tatr.cn quere the 
 law of this adjudication [b ; l 
 
 Where- an instrument contains a written contract of demise in its 
 general terms, with a several operation in respect to the different tenants 
 who sign it for different estates, at the different rents set opposite their 
 signatures, and one stamp only appears upon the paper, it is matter of 
 evidence to which contract such stamp r.pplies; and the circumstance of 
 juxta-position of the stamp to the defendants' signature, which stood 
 untouched, while the other names appeared to be cancelled ; together 
 with the date of the stamp- office receipt for the stamp and penalty, 
 winch shewed that it had been affixed recently before the trial •, and 
 there being no evidence of a dispute with any other tenant, which could 
 make the stamp necessary for another purpose ; are evidence that it 
 was intended to be applied to the contract with the defendant (c). 
 
 By the stamp act, 43 G. 3. c. 149. every lease for a term not exceed- 
 
 («, BulL N. P. 269. (/) Cowp. 474. (<r) 13 East. 241.
 
 Sect. II.] to Leases, Agreements, &c. 33 
 
 ing twenty-one years, at a yearly rent of to/, or less, and without fine 
 is liable to a duty of 1/. ; and every lease for a life or lives, or for a 
 term of years, determinable with a life or lives, or for a term absolute, 
 not exceeding forty years, made in consideration of a fine not exceeding 
 20/. if the rent shall not exceed 400. is liable to a duty of 1/, and if the 
 rent shall exceed 401. to a duty of 1/. rox. Counterparts of leases, on 
 which a duty of 1/. is imposed, are subject to the same duty, and of 
 other leases, to a duty of \l. \os. Assignments on the sale of any lease, 
 or any interest therein, are made liable to an ad valorem duty; and other 
 assignments to a duty of 1/. 10s. 
 
 By the same act every schedule, inventory, or catalogue of any lands, 
 furniture, fixtures, or effects ; or containing the terms and conditions 
 of any lease ; or regulations for the cultivation or management of any 
 farm, lands, or other property leased, or agreed to be leased ; or con- 
 taining any other matter of contract or stipulation, which shall be 
 referred to by, and be intended to be used as part of, any agreement, 
 lease, &c. but which shall be separate and distinct therefrom, is charged 
 with a duty of 1/. and a further duty of \l. for every 1080 words, 
 above the first 1080 words. 
 
 D
 
 CHAPTER III. 
 
 Of the Parties to a Lease, ic herein by whom a Leas; 
 
 may be made. 
 
 Section I. Who may make Leases, and herein of Leasee 
 by Tenants in Fee Simple. 
 
 TTITH respect to the persons who are capable, by the common 
 ' law, of making leases, it may be laid down, that all those who 
 are capable of alienating their property, or of entering into contracts 
 respecting it, may make leases, which will endure as long as their in- 
 terest in the thing leased, but no longer [a). 
 
 As an estate in fee simple is the largest estate which a man can have 
 in lands, giving him a full dominion over property, with an absolute 
 power of alienation; it necessarily includes the smaller power of grant- 
 ing leases, which, consequently, he may do without limitation or 
 restraint. 
 
 Section II. Of Leases by Tenants in Tail, 
 
 An estate in fee tail, though an estate of inheritance, is of a limited 
 nature •, being a gift to a man and the heirs of his body, who are pro- 
 hibited from alienation, except by particular modes prescribed by law. 
 
 If tenant in tail after the statute de ihn'n had made a lease for years 
 and died, the lease was not absolutely determined by his death, but the 
 issue in tail was at liberty either to afdrm or avoid it, as he thought fit. 
 
 Acceptance by tenant in tail cf the rent or fealty, or bringing an 
 actio: 1 , for the recovery thereof, or an action cf waste, were such acts 
 as amounted to a confirmation of the lease, because these plainly mani- 
 fested his intent to continue the lessee in possession upon the terms of 
 his lease-, and by consequence such issue could never afterwards avoid 
 it during his own life \b\ 
 
 If a tenant in tail makes a lease to A, for twentv years, and the lessee 
 makes a lease to B. lor ten years, and then the tenant in tail dies, and 
 the issue accepts the rent of B. this is no affirmation cf the lease, 
 because B. was under no obligation to pay Ids rent to him, and is 
 answerable for it over again to A. \ and therefore his payment to the 
 issue in tail was voluntary and in his own wren;;, and the issue's 
 acceptance thereof not conclusive, more than if he had received it of a 
 
 ' ■. Crui. Di;. L'.3:«, {/.) La;. Air. tit. I.« .3 (I?.)
 
 Sect. II.] Of Leases uy Tenants in Tall. 35 
 
 mere stranger ; and, by consequence, tie issue in tail may enter and 
 avoid the ler.se: but if the issue had accepted the rent from A. this had 
 amounted to a confirmation of the lease made to A and by consequence 
 he could not after avoid the lease to B. which was derived thereout a\ 
 But if A. had assigned five acres of the land in lease to B. for the 
 residue of twenty years, and die issue in tail had accepted the rent 
 from B. this would amount to a confirmation of the entire lease to A. 
 because the rent issuing out of the whole and out of every part of the 
 land, B. as to these five acres, succeeded in the place of A. by having 
 his whole interest therein; and then the issue in tail, by acceptance of 
 the rent from one whose part, as to him, was equally chargeable with 
 the whole rent, hath given his consent that the whole estate chargeable 
 therewith shall continue, though he chose to take his rent out of part 
 only; for otherwise he would do injustice to A who would be liable to 
 make recompence to B. for the overplus of the rent, and yet have no 
 recompence himself, if the issue might defeat the residue of the lease 
 remaining in his hands 'b). 
 
 If a tenant in tail makes a lease for ten years, to begin ten years 
 hence, and dies, and the issue within the ten years enters and makes 
 a feoffment in fee, the feoffee, at the end of the ten years, shall have 
 election either to alarm and make good such lease, or to avoid it ; for 
 upon the death of tenant in tail, the possession was become vacant, 
 and none had a right to enter but the issue in tail, for the time of the 
 lessee's entry was not yet come; then when the issue enters generally, 
 his primary right was, in respect of the inheritance, descended to him 
 as issue in tail, and he had no occasion to direct his entry at that time 
 to any other purpose; and therefore his entry shall be intended in respect 
 of the estate-tail descended to him ; and when after such entry he makes 
 a feoffment in fee to a stranger, this transfers the possession just in the 
 same plight as the issue in tail himself had it, without any thing done to 
 determine his election, one way or another ; and the;: the s.m^e power 
 of election passes incorporated in the feoffment ; and the feoffee, when 
 the time for making use thereof i come, may use it either to determine 
 the lease by cutting the lessee, or to affirm or m:.>.ke it goed by accept- 
 ance of rent from him. 
 
 If tenant in tail nuke a lease for life, whereby he gains a new rever- 
 sion in fee so long as tenant for life lives, and lie grants a rent-charge 
 out of the reversion, and afterw.nn's tenant for life dies, whereby the 
 grantor becomes tenant in teal again, and the rev. r. ion in fee is 
 defeated; yer, because the grantor had a ri^ht of the cnc.ui in him, 
 clothed with a defeasible fee simple, the rent-charge remains e.ood 
 against hum, but not against his issue 'r\ 
 
 A man seized in fee made a leaser for- ninety-nine years, if three per- 
 
 (a) Bac. Abr. tit. Leases (D ) (b) Ibid. (c) Co. Lit. c. i a. 66. 
 
 D 2
 
 3f) Of Leases by Tenants in Tail. [Chap. III. 
 
 sons go long lived ; then he settled the reversion upon himself in tail, 
 with power to make !e::ses for twenty-one years, and then he made such 
 a Iep.se and died; the son, who was the issue in tail, levied a fine and 
 sold the rever ion; the firs: lease determined, and the court thought that 
 the ccgnizee ivm ht avoid the second lease, because it never was in the 
 election of the tenant in tail, or his issue to avoid it, they having con- 
 veyed away their estates before this second lease was to commence; for 
 if tenant in tail make a lease to commence hi prasenti t and convey away 
 his estate by fine, the cognizee must hold it charged with such lease; 
 but if it be to commence in faiuro, it is otherwise, because it cannot be 
 avoided before the commencement. Therefore, if tenant in tail makes 
 a voidable lease for years or life, and dies, and the issue, before entry 
 on the lessee, levies a fine to a stranger, the cognizee shall not avoid 
 the lease, because such lease being only voidable by entry, when the 
 issue before entry conveys over the land- by fine, the power of entry, 
 which was the only means of avoiding such lease, is by the fine destroyed 
 and gone ; for a right of entry cannot be transferred to a stranger any 
 more than a right of action : so, if the tenant in tail himself after such 
 lease, had levied a fine to a stranger, or even to the reversioner, and 
 died, yet they could not avoid the lease ever after, because, if they 
 could, it must be by reason of the right of entry transferred by the fine, 
 which would have come to the issue if no such fine had been levied; and 
 the law absolutely condemns all alienations of right only, whether it be 
 right of entry or of action, and consequently in these cases, by such 
 alienation, the lease is become absolute and unavoidable (a). 
 
 If tenant in tail makes a lease for thirty or forty years, rendering 
 rent, and dies with issue, his wife privement ensient, with a son, and the 
 donor enters, and as to himself avoids the lease, then the son is born, 
 and die lessee re-enters ; the son at full age may either affirm or avoid 
 such lease as he thinks fit ; for the lease was not absolutely determined 
 or avoided, more than the estate-tail itself, out of which it was derived, 
 but only secundum quid, and subject to be set up again upon the birth of 
 the issue, which revived the estate-tail. But if such lease were made 
 by the tenant in tail before marriage rendering rent, and then he married 
 and died, leaving his wife privement ensient, and the donor enters, and as 
 to himself avoids the lease, yet if the wife be afterwards endowed, the 
 lease is revived as against her, because her estate is quodam modo, a con- 
 tinuance of the estate-tail of the husband, and therefore, revives all 
 charges made by him before the marriage: but if the wife be after 
 delivered of a son, and dies, now the issue may again avoid that lease 
 or affirm it, as he thinks fit : or if such lease were made after marriage, 
 and the wife being endowed thereof, avoids that lease, yet after her 
 death the issue in tail may revive it; for 'in all these cases the avoidance 
 
 (?) Bac. Abr. Tit. " Leases," (D.) 3 Salk. 336. 4 Mod. 1.
 
 Sect. II.] Of Leases by Tenants in Tail 37 
 
 of such leases being only by those who had a temporary estate or inte- 
 rest in the land, it cannot bind those who succeeded to the inheritance 
 thereof, but that they may, if they think fit, re establish and set up such 
 lease again, which, as to them, was at first only voidable, and not abso- 
 lutely void. And herein a lease at common law by the tenant in tail 
 differs from rent granted by such tenant which is void by the death of 
 the grantor ; whereas a lease is only voidable by the issue in tail, whose 
 acceptance of rent amounts to a confirmation (a). 
 
 Power to lease by the enabling statute. — Thus, by the common-law, 
 tenant in tail could make no loses which should bind his issue in tail, 
 or the reversioner ; to remedy which, the statute 32 Henry 8 c. 28. com- 
 monly called 'The Enabling Statute b) was passed. 
 
 By this statute, any person whatsoever, of full age, that hath any 
 estate of inheritance in fee tail in his own right of any lands, tenements, 
 or hereditaments, may at this day, without fine or recovery, make leases 
 of such lands for lives or years, and such leases shall be good ; so as 
 these conditions following be observed. 
 
 1. Such lease must be by indenture ; and not by deed-poll or by 
 parol. 
 
 2. It must be made to begin from the day of the making thereof, or 
 from the making thereof: therefore a lease made to begm from Mi- 
 chaehnaS) which shall be three years after, for twenty- one years; or a 
 lease made to begin alter the death of the tenant in tail, for twenty-one 
 years, is not good. But a lease made lor twenty years, to begin at 
 Idichaehnas next, it seems is a good lease; lor 
 
 ,;. If there be an old lease in being, of the land, the same must be 
 expired, surrendered, or ended within a year of the time of the 
 making of the new lease ; and this surrender must be absolute and 
 not conditional; also, it must be real, and not illusory, or in shew only. 
 Therefore, 
 
 4. There must not be a double or concurrent lease in being at one 
 time ; as if a lease for years be made according to the statute, he in 
 reversion cannot afterwards expulse the lessee, and make a lease for life 
 or lives, or another lease for years according to the statute, nor e converse. 
 
 But if a lease for years be made to one, and afterwards a lease for 
 life is made to another, and a letter of attorney is made to give livery of 
 seisin upon the lease for life, and before the livery made the first lease is 
 surrendered, in this case, the second lease is good. 
 
 5. These leases must not exceed three lives, or twenty-one years 
 from the time of making them ; for the words of the statute are to 
 make a lease for three lives, or twenty-one years, so that either the one 
 or the other may be made, but not both. Therefore, if tenant in tail 
 make a lease for twenty-two, or for forty years, or for four lives: this 
 
 («) Cruise's Di^. tit. II. c. 2. s. 8, Bio. Abr. tit. " Grant" 145. 2 Ld. Rayra, 779. 
 
 (4) 3a H.8.c.x8.
 
 38 Of Leases by Tenants in Tail. [Chap. III. 
 
 lease is void, and that not only for the overplus of time more than 
 three lives, or twentv-ono vears, but for that time of three lives 
 or twenty- one years also; and it hath been resolved, that if tenant 
 in tail make a lease fur ninety-nine years, determinable upon three 
 lives, that this is not a rood lease. But if a lease be made by a 
 tenant in tail for a lesser time, as for two lives, or for twenty years ; tins 
 is a good lease. If a lease be made for four lives, and it happens 
 that one of the lives die before the tenant in tail die ; yet this 
 accident will not make the lease rood, but it remains voidable not- 
 withstanding. 
 
 6. These leases must be cf lands, tenements, or hereditaments, ma- 
 nurable or corporeal, winch ere necessary to be let, and whereout a rent 
 by law may be issuing and reserved. Therefore; if a tenant in tail, 
 make a lease 01 such a thing as doth lie in grant, as an advowson, fair, 
 market, franchise, or the like, out of which a rent cannot be reserved, 
 especially if it be a lease for life; this lease is void, and that albeit the 
 tiling have been anciently and aceustomably let. A grant of rent- 
 charge, therefore, out of such lands is void ; and if a tenant in tail 
 make a lease for three lives of a portion of tithes rendering rent; this 
 lease is unquestionably void ; S3 also it seems it is, i: it be a lease of. 
 twentv-one years. — But now by the statute 5 G. 3. c. 17. a lease of 
 tithes, or other incorporeal hereditaments alone, may be granted by any 
 bishop, or anv such ecclesiastical or eleemosynary corporation, and 
 the successor shall be entitled to recover the rent by an action of debt, 
 which in case 0; a freehold Icasej he ^au.i not have brought at com- 
 mon law. 
 
 7. They must be of such lands or tenements, which have been most 
 commonly let to farm, or occupied by the farmers thereof, bv the space 
 of twenty year-, next before the lease made : so as If it had been let for 
 eleven years, at one or several times within twenty years before the 
 new lease made, it is sufficient. Albeit the letting have been by copy 
 of court-rod only, yet such a letting in fee, for lite, or years, is a 
 sufficient letting, and so also is a letting atwid by the common law. But 
 these lettings to farm must be made by such as are seised of an estate 
 of inheritance : tor if it have been only by guardian in chivalry, [now 
 abolished] tenant oy the courtesy, in dower, or the like; this will not 
 serve to be a lettmg v.itldn tlu intent of the statute. 
 
 8. i here must oe reserved tips.:: such leases yearly, during the same 
 leases, doe and payable to the lesser ao.d his heirs to whom the rever- 
 sion I 11 . ;ertam, so much yearly farm or rent, or more, as hath 
 been most aceustomably yielded or paid for the lands, L5V. within 
 twenty years next before such lease made. Therefore, if the rent bo 
 reserved but for part of the time of the new lease, this lease is void. 
 So, if the tenant in tail have twenty acres of laud that have been ac- 
 ci'atomably let, and he make a lease of these twenty acres, and of on 
 
 •r- "it;-.
 
 Sect. II.] Of Leases bij Tenants in Tail. SO 
 
 more which hath not been accustomably let, reserving the usual yearly 
 rent, and so much more as to exceed the value of the other acre; this 
 is net a good lease by the statute. So, if the tenant in tail of two farms, 
 the one at twenty pounds rent, the other at ten pounds rent, make a 
 lease of both these farms together, at thirty pounds rent, this is not a 
 good lease within the statute • But if besides the annual rent, there 
 have been formerly reserved things not annual, as heriots, fines or other 
 profit, upon the death of the farmers, or profit out of another's soil, 
 as pasturage for a colt, &c. if upon the new lease the yearly rent be 
 reserved, albeit these collateral reservations be omitted, yet these leases 
 are r;oed. .So, also, if there be more rent reserved upon the new lease 
 than the rent that hath been anciently paid, the lease is good notwith- 
 standing, bo, (a) if tenant in tail of land, let a part of it that hath 
 been accustomably let, and reserve the rent pro rain, or more,, this is , 
 food, for that is in substance the accustomable rent. Also, if twoco- 
 parceners be tenants in tail of twenty acres, every one of equal value, 
 and accustomablv letten, and they make partition so as each have ten 
 acres, they may make leases of their several pares of each of them, re- 
 serving the half of the accustomable rent. If the aceustomabie rent 
 had been payable at four days or feasts of the year, yet if it be reserved 
 yearly, payable at one feast, it is sufficient, for the words of the statute 
 are, to be reserved yearly. On a question, Whether the reservation of 
 ■the ancient " copyhold," rent or mere, in a lease made by tenant in tail, 
 would answer the description of the ancient Ci accustomed" rent, within 
 die statute, it was held that it would [b), 
 
 9. Such leases must not be made without impeachment of waste. 
 Therefore, if a lease be made for life, the remainder for life, &c. this 
 Is net warranted by the statute, because it is dispunishable of waste. 
 But, if a lease be made to one during three lives, this is good ; for the 
 occupant, if any happen, shall be punished for waste. Prebend makes 
 a lease for years, reserving the running of a colt, rendering rent, a new 
 lease, rendering the same rent, without reserving the running of a 
 colt, adjudged good •, because quzad this, it is neither reservation, nor 
 exception. But if a lease be of a manor, except the woods, rendering 
 rent, and arter the expiration of it, there is a new lease rendering the 
 same rent without such exception, the second lease is bad '< ). 
 
 By this statute, then, a tenant in tail is enabled to grant such 
 leases as shall bind his issue in tail ; though not those in remainder or 
 reversion. 
 
 It tenant in vail male demise for a term of ninety-nine years, and Ids 
 lessee assign over to another, but before such assignment tenant in tail 
 male dies without issue male, no action of covenant upon the lease can be 
 maintained against the representatives of the grantor by such assignee, 
 
 [a) Co. Lit. 44. 6. IL) Moore, -59 (c) Moore-, 6.
 
 40 Of Leases hi Tenants in Tail. [Chap. III. 
 
 the lease being void at the time of the assignment, and no interest 
 passing under it a). 
 
 Tenant in tail male, had issue two sons by divers venters, and died; 
 the eldest son entered and made a lease for twenty-one years, reserving 
 rent generally to him and his heirs and assigns, and died without issue, 
 leaving two sisters his heirs at law ; and if by this reservation, the rent 
 belonged to the second brother, to whom the reversion descended, as 
 heir male of the body of the father, was the question ; for if not, then 
 the lease could not bind him within 32 H. 8. c. 28; and it was adjudged 
 to be a good lease, and that the rent should go along with the rever- 
 sion ; for the words of the statute are, that the rent shall be reserved 
 to the lessor his heirs, or " to those to whom the lands would go if no 
 such lease had been made ; : ' and here the intent was, that the rent 
 should go along with the reversion ; and so it may here, for rent na- 
 turally follows the reversion, and the second brother is heir to the intail 
 and reversion, though not to the lessor ,b . 
 
 Tenant in tail makes a lease for twenty years, rendering the usual 
 rent, habendum from Michaelmas next ensuing : [c) this seems a good 
 lease, though it did not begin from the making of the lease, according 
 to the proviso ^2 H. 8. c. 28- for the intent of the statute was only 
 that the lease should not exceed the number of twenty-one years from 
 the making, which this lease did not, and in the margent, a case is of 
 Thompson and Traffbrd \ \_Poph. 8. : 35 Eliz, in B. R. cited to be ad- 
 judged, per toiam curiam, that it was a good lease, and well warranted 
 bv the statute : though my Lord Coke lavs it down for one of his rules, 
 that leases upon that statute are not good if they do not commence 
 from the day of the making, which perhaps may be reconciled upon 
 the same diversity, where they are under twenty-one years and where 
 not so, that from the time of the sealing and executing the lease, till the 
 expiration thereof, there does not intervene more than twenty-one years. 
 For, if the commencement of the lease be at such a distance, that be- 
 tween the time of the sealing and executing thereof, and the expiration, 
 there do not intervene above twenty-one years, then such lease seems to 
 be without any aid from this statute, though the time for continuance 
 thereof in the possession of the lessee be under twenty-one years ; for 
 otherwise the tenant in tail might so procrastinate the commencement 
 of the lease, as to have always the greatest part of the twenty-one years 
 running out in the time of his issue, which the statute never intended 
 to countenance. 
 
 So, where one made a lease for ten years, and after made another 
 
 lease for eleven years, both these leases are good, because they do not 
 
 in all exceed twenty. one years, and so the inheritance is not charged 
 
 with IT' • than a 'ease for twent -one years, which the statute allows (</)> 
 
 Cop/.iolds are not within the statute. 
 
 (.1) 1 E >s.& 1'ul.N.R. 158, (0 Bacon Abr. '.it," Leases," (D.) 1. 
 
 (0 lbid - id) Ibid.
 
 Sect. IV.] Of Leases by Tenant for Life. 41 
 
 Sectiox III. Of Leases by Tenant in Tail after possibility 
 of Issue extinct. 
 
 This estate 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 (a). The law looks upon this estate as 
 equivalent to an estate for life only, and in truth the tenant is only 
 tenant for life, and is permitted to exchange his estate with a tenant 
 for life -, an exchange that can only be made of estates that are equal 
 in their nature. 
 
 His power to demise, therefore, will come more properly within the 
 consideration of the next subject. 
 
 Section IV. Of Leases by Tenant for Life ; absolute or 
 
 contingent. 
 
 Tenant for life can make no leases to continue longer than his own 
 life j for his leases are absolutely void at his death b). 
 
 Thus [c) where tenant for life leased premises for twenty-one years, 
 and before the expiration of that term died ; the trustees of the re- 
 mainder-man, then an infant, continued to receive the rent reserved, 
 and he, on coming of age, sold the premises by auction ; in the condi- 
 tions of sale the premises were declared to be subject to the lease, and 
 in the conveyance to the purchaser, the lease was referred to as in the 
 possession of the lessee ; and in the covenant against incumbrances, 
 that lease was excepted ; the purchaser mortgaged, and in the mortgage 
 deeds the like notice was taken of the lease, and the mortgagee for 
 some time received the rent reserved : held that the lease expired with 
 the interest of the tenant for life, and that the notice since taken of it 
 did not operate as a new lease. 
 
 Therefore a lease so rendered void against him in remainder, cannot 
 be set up in a court of law by such remainder-man's acceptance of rent, 
 and suffering the tenant to make improvements after his interest vest* 
 in possession (d). — But when the remainder-man lies by, and suffers the 
 lessee or assignee to rebuild, and does not by his answer deny that he 
 had notice of it, all these circumstances taken together, will bind him 
 in a court of equity from controverting the lease afterwards. 
 
 Also, a lease executed by a tenant for life, in which the reversioner, 
 who was then under age, is named, but which was not executed by 
 him, is void on the death of the tenant for life, and an execution by 
 
 (V)2B1. Com. 124. {b) Bac. Abr. tit. " Leases," (I.) (c) i Bos. & Pull. 531. 
 
 (<0 Doug, 50. Cowp. 482. Bull. N. P. 96. 7T. R. 83. 478. 3 Atk. 393.
 
 42 Of Leases by Tenant for Life. [Chap. IIT. 
 
 the reversioner afterwards is no confirmation of it, so as to bind the 
 lessee, for it is net his covenant (a). 
 
 But if tenant for life makes a lease for twenty years generally, and 
 afterwards he in reversion confirms that lease, and then the tenant for 
 life dies ; though this at first would have determined by the death of the 
 lessor, yet the confirmation hath made it good for the whole term lb). 
 But if the lease had been for twenty years, if the lessor tenant for life 
 should, so long live, there, if the reversioner head confirmed this lease, 
 yet it would not prevent its voidance upon the death of the tenant for 
 life. 
 
 The diversity between which cases is this [c : that in the first case, 
 the lease being made generally for twenty years, nothing appears to the 
 contrary, but that it was a good lease for that time absolutely; for the 
 death of the lessor, which would determine it sooner, does not appear 
 in the lease itself ; then when the reversioner, who alone could take 
 advantage of that implied limitation, thinks hi to wsiee it, and confirms 
 the lease as it was made at first for twenty years absolutely, this makes 
 it his ciu;: lease, for so much of the time as would have fallen into his 
 reversion by the death of the tenant lor liie being made the express li- 
 mitation and circumscription of the twenty years in the lease itself, no 
 confirmation of that lease so limited can enlarge it to extend beyond the 
 life of the lessor, that being the express determination affixed to it. — • 
 For although we find one case, where it is held, that if a man makes a 
 lease for twenty-cue years, if the lessee so long live, and afterwards the 
 lesser and lessee join in a grant by deed of the term to another, after 
 which the first lessee dies within the twenty-one years, yet the grantee 
 shall enjoy it during the residue of the term absolutely. To reconcile 
 this case with the ether, it must be intended, that in the assignment 
 no notice is taken of the express limitation affixed to the lease, but 
 that they joined in an assignment of the lease, for the residue of the 
 twenty-one years, and then it may be well construed to amount to a 
 confirmation by the lesser for that time, as the lessor may confirm the 
 land to the lessee for any longer time, and thereby enlarge his estate or 
 interest. 
 
 B. tenant for the life of C. and he in remainder or reversion in fee 
 join in a lease for years by indenture [d ; tins during the life of C. is the 
 lease of B. who then only had the present interest in the lands, and the 
 confirmation of him in the remainder or reversion ; but after the death 
 of C. then this becomes the lease of him in the reversion or remainder, 
 and the confirmation of B. ; for the lessors having several estates in 
 them i.i several degrees, the lease shall be construed to move cut of 
 each one's respective estate or interest, as they become capable of sup- 
 porting it, which is the most natural and useful construction of the 
 
 00 I T. R. 26. (L) B..c. Abr. tit, « Leases," (L. 2.) (. ■) Ibid. (/) >
 
 Sect. VI.] Of Lease? by Tenant by Curtesy, §c. 43 
 
 •lease, especially as there can be no estoppel in this case, by reason of 
 the sever. il interests which passed from each. Therefore durinp the 
 life of tenant for life, if the lessee, being evicted, should declare of a 
 lease ic\- both ; this would be against him, as was adjudged, because for 
 that time it was only the lease of the tenant for life. 
 
 A, lessee for life makes a lease to B and C. on condition that if they 
 die leaving A. then the land shall revert to A. without determining any 
 estate certain in the grant; all the estate passes under the condition, 
 for in precipe A. was net received on default of B. and C [a). 
 
 If tenant for life and he in remainder in tail join in a lease to A. 
 for life, remainder to B. for life, and the issue in tail accepts the rent 
 of A. ami levies a Hue, the lease in remainder is good, notwithstanding 
 the feoffment \b). 
 
 Where lessee for life makes a le;se for years, excepting the wood, 
 underv, ood, and trees growing upon the land, it is a good exception, 
 although he has no interest in them but as lessee, because he remains 
 always tenant, and is chargeable in waste ; wherefore to prevent it, he 
 may make the exception -But if lessee for years assign over his term, 
 with such an exception, it is a void exception 'c]. 
 
 Section V. Of Leases by Tenants pour autre Vie, 
 
 Where a person holds for the term of another's life, he is called 
 tenant pour autre vie ; ami leases nie.de by him of course determine on 
 the death of the cestui que vie, or person during whose life he holds, 
 but not on his own death ; for by the statute of Frauds every estate 
 pour autre vie is made devisable, and ir not devised, it shall be assets 
 in the hands of the heir, if limited to the heir ; if not limited to the 
 heir, it snail go to the executor or administrator of the grantee, and be 
 assets in their hands. 
 
 Section VI. Of Leases by Tenant by the Curtesy of 
 England; in Doner ; or Jointure. 
 
 Tenant by the curtesy is where a man marries a woman seised of an 
 estate of inheritance, and has by her issue born alive, which was ca- 
 pable of inheriting her estate [d : . Tenancy in dower, is where the hus- 
 band of a woman dies, with or without issue, in which case, the wife 
 shall have me third, part of all the lands and tenements whereof he 
 was seised for an estate of inheritance at any time during the coverture, 
 
 0) Co. Lit. c. 6. p. 56. u. II. (£) Cro. Eliz. 252. 
 
 (:.-) Cro. Jac. 2<j6. (d) 0, Bl. Corn. is6»
 
 44 Of Leases under Powers. [Chap. III. 
 
 to hold to herself during the term of her natural life. Tenant in 
 jointure is by the 27th H. 8. c. 10. commonly called the statute of 
 Uses, by which dower may be barred by a jointure, or by conveying a 
 joint estate to husband and wife ; but in common acceptation, it means 
 a sole estate limited to the wife only a). 
 
 As to these respective estates, it will be sufficient to observe, that if 
 cither of the tenants make a lease for years, reserving rent, and die, 
 this lease is absolutely determined, so that no ace of rent by the 
 
 heir or those in reversion can make it good; for though their estate is 
 qtiodam modo % a continuance of the cerate oi the husband or wife, yet it 
 is a continuance only for life, and they have no power to contract for, 
 or intermeddle with, the inheritance, and consequently their leases or 
 charges fall off with the estate whereout they were derived, arid the 
 lessee is become tenant by sufferance by his continuance of possession 
 after \b). 
 
 S l c t i o n VII. C) ' Leases un dcr Pozca s. 
 
 Lord Mansfield has observed, (c) that of all kinds of powers, the 
 most frequent is that " to make leases." Though it may not now per- 
 haps be the most frequent, it is certainly one of the most useful, as it 
 is highly necessary for the encouragement of farmers to occupy, stock, 
 and improve the land, that they should have some permanent interest. 
 If the owner of the estate for life was not enabled to make a permanent 
 lease, he could not enjoy to the best advantage during his own time -, 
 and they who came after must suffer, by the land being untenanted, out 
 of repair, and in a bad condition. The plan of this power is for the 
 mutual advantage of possessor and successor. The execution of it is 
 checked by many conditions, to guard the successor, so that the annual 
 revenue may not be diminished, nor those in remainder prejudiced in 
 point of remedy, or other circumstances of full and ample enjoyment. 
 
 The limitation and modifying of estates by virtue of powers, came 
 from equity into the common law with the statute of i ses ch: as there- 
 fore powers came into the courts of law with the statute of Uses, so the 
 construction of them, by the express direction of the statute, must be 
 the same as in courts of equity [e] ; for whatever is a good power or 
 execution in equity, the statute makes good at law (f). As powers 
 are derived from equity, and ought even at law to be construed equi- 
 tably, so in the construction of powers originally in their nature legal, 
 courts o p equity must follow the law, be the consideration ever so me- 
 ritorious. 
 
 CO 2 1;! - Com. 36. (I) Bac. Abr. tit. « Lenses," (I.) I. Cro. Car. 398. 
 
 (tj t Burr. 120, i%t, £ U gd, on Powers. 473. (</) 1 Burr. tao. 
 
 («■) Doug. ;o. 3 , (/) a Burr , u 4 6. 1 Bl, R. %%^
 
 Sect. VII.] Of Leases under Powers. 45 
 
 The circumstances attending the execution of such leases may be 
 considered, 1. With respect to the lessor ; 2. to the lessee ; 3. to the 
 subject on which the power is to operate ; 4. to the quality and quan- 
 tity of interest to be granted ; 5. to the rent ; 6. to the form of the 
 lease (a). 
 
 1. With respect to the lessor. 
 
 He must, as we have observed, pursue the power strictly. If te- 
 nant for life, therefore, has a special power of granting leases for a 
 longer term than his own life, upon his death the lease is void, unless 
 he lias strictly pursued the power (b). So, tenant for life, with power 
 of leasing under certain conditions, must demise in strict conformity 
 with those conditions <c). Indeed in respect to the execution of 
 powers [d\ courts of justice have always looked with a jealous eye to 
 see that the conditions in favour of the next taker be pursued, not li- 
 terally only, but substantially. 
 
 So, tenant for life, with power to make leases for three lives, or 
 twenty- one years, cannot make such leases by letter of attorney, by 
 virtue of his power (e) ; because such leases not being derived out of 
 the interest of the tenant for life, but by an authority derived from 
 the tenant in fee, and to charge the estate of third persons, the trust 
 for that purpose is personal, and cannot be delegated to another. 
 
 It has also been determined, that where a power of leasine was triven 
 to the father, tenant for life, and after his decease, to the son, tenant 
 for life, and the son obtained a grant from the father, of his life estate, 
 (without noticing the power) subject to a certain rent, with a power of 
 re-entry for non-payment ; the son, during the life-time of his father, 
 could not lease under the power {/). 
 
 A power to make leases generally, extends only to leases in posses- 
 sion, and not to leases in reversion, or in future 'g). 
 
 The grant of a lease need not be in actual possession, but a con- 
 structive possession, by the receipt of the rents and profits, is a suffi- 
 cient compliance with the power. If actual possession were necessary, 
 a leasing power could never be executed where the land is in the hand* 
 of a tenant (h). 
 
 Therefore, where a tenant for life, with power to grant lease, in 
 possession for twenty-one years at the best rent, conveyed hi:; life -estate 
 to trustees to pay an annuity for his life, and the surplus to himself; 
 the power was held to be not thereby extinguished, but he might still 
 grant a lease agreeable to the terms thereof /;. 
 
 2. With respect to the lessee. 
 
 The lessee, in a lease under a power, must, it should seem, be a 
 
 (a) Powel on Povv. 390. {!>) 1 T. R. ~zj. J T. R. 567. 
 
 (<0 6 Bro.Cas.in Pax 1. 1 75. (</) 1 Burr. 121. (<■) 2 Co.~6.a. 
 
 (/)l 3 East. R.I18. (f)Cro.Jac.jl8. I Cctn. R. 39, s. p. (J>) Doug, l^ 
 CO Ibid.
 
 43 Of Lease* under Forcers. [Chsp. Ill, 
 
 person In being at the time when it is made-, for generally such leases 
 cannot be made in reversion or in futttro : and it has been held, that if 
 a power be to make leases to one, two, or three persons, the donee cf 
 the power cannot make a lease for the life of the first son of J. S. 
 because the person to take under the power ought to be in esse a' . 
 
 If a man covenant in consideration of natural affection, with a 
 power to make leases, a lease to a stranger is void 7> ■. 
 
 g. With respect to the subject on which the power is to operate. 
 
 A tenant i v life, having power to grant building leases for sixty-one 
 vears, reserving the best improvement ground rent, granted a lease lor 
 that term, which was not expressed to be a building lease, 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*," held that this was not a building lease within tire power: 
 such a lease being granted by tenant for life, who had a bare naked 
 power without any legal interest, i? void, and consequently not capable 
 of being confirmed by the remainder man accepting rent o. 
 
 If a leasing power be restrained to be exercised only over here- 
 ditaments usually Ictieuy lands twice letten are included within that 
 description d . 
 
 But lands that have been but once letten, are not within such a 
 power (*.. 
 
 So, if lands had been leased by virtue of a contract, from year to 
 year for three years, this cannot be said to be usually letten, because 
 tins is but one lease, though renewable every year. 
 
 Anv kind of demise is sufficient to support such power, there being 
 no necessity that it should have been demised by indenture ; a demise at 
 will, or by copy, is sufficient to make laud to be accounted usually 
 demisable ■/). 
 
 But lauds not demised for the space of twenty -car: before the exe- 
 cution of a power to demise, at the rent then usually reserved and paid, 
 cannot be leased under such power [<A, 
 
 Thus \h) where there was a tenant for life, with power to make 
 leases of all or any of the lands in an indenture of settlement, particu- 
 larly mentioned, which at any time theretofore had been usually 
 letten or demised, for, and during the term of twenty-one vears or 
 under, in possession and not in reversion, reserving the rent thereupon, 
 then yielded or paid, or more. Tenant lor life made a lease of part cf 
 the premises mentioned in the settlement, which had been let at ioo/. 
 per ann. for twenty-one years ; but which term of twenty -one year- had 
 expired, and the premises had not been let for the space of twenty 
 
 (..) T. Ray. 163. (I) Cm. Jac. i?,o. (:] Willes, 169. 
 
 ( . 2 R. ::. A!)!-. :5i. (0 Ibid. 13. (J) r ° wtil °» r - '■ 39*- 3 Ci ■.'■.. <;■ 
 
 (iV Pov.-cllc;: Pew. 2J$. (b) Vtugh. 31. Sir T. Jou.-s, 2;. 6. U.
 
 Sect. VII.] Of Leases under Powers. 47 
 
 years before the demise, under the power which was the subject of 
 dispute. It was held, that what was not farmed at the time of the proviso 
 made, nor twenty years before, could not be said to be at any time 
 before commonly farmed ; for those twenty years were a time before in 
 which it was not farmed. Besides, the proviso was, that leases might 
 be made for twenty-one years of any lands in the deed, reserving the 
 rents thereupon reserved at the time of the deed made, 'which neces- 
 sarily implied, that the land demiseable by that proviso must be land 
 which then was under rent ; for if no rent then was, the rent then 
 thereupon reserved could not be reserved. But the premises in ques- 
 tion had then no rent upon them, for they were not let of twenty years 
 before, nor then, and therefore were not demiseable by that proviso. 
 The words " or more," could not at all help the lessee ; for the words 
 " more" or " less," were words of relation ; the one of addition to 
 what was before, the other of diminution: for "more" or « less," 
 must relate to something positive before, and could never be a relation 
 to nothing. 
 
 A covenant to stand seised, as it is a lease if made by the owner, so 
 also \i it an evidence of the usual manner of demising a). 
 
 It seems now to be settled, that the question, whether, under a 
 power to lease lands, and other hereditaments, provided that such rent 
 or more be reserved upon every lease as hath been reserved, or paid for 
 it, within a given time, previous to the creation of the power — hinds 
 not before in lease may be demised, is a question of construction on 
 the intention of the author of the power, to be collected from the 
 instrument creating the power, or the circumstances of the estate b). 
 
 Thus, where a power was to lease a manor, except the demesne lands, 
 though copyholds, being within that description, could not be demised 
 under such power, yet the rents and services of the manor might c ; 
 for it appeared to be the intent of the settlement, that part of the 
 manor should be demiseable, and notwithstanding a qualification 
 annexed to the power which said that the ancient rent should be reserved, 
 and no reservation of rent could be upon a lease of rents and services, 
 out of which no rent issues ; yet the rents and services might be 
 demised within the power, for it appeared, that part of the manor was 
 intended to be comprised within the power, but that the demesne 
 lands were not to be comprised ; then the rents and services must be, 
 for the whole 01 the manor consists in demesnes, rents, and services ; 
 and if a man hath a power reserved to him of making leases of two 
 things, and a qualification is annexed to the power, which cannot ex- 
 tend to one of these things, he may make a lease of that thing without 
 any regard to the qualification. 
 
 («) 3 Eurr. I44-''. [o) Powell on Po-.v. 4 C2. % RcR. Abr. zd, 15. 3 Keb. 59-. 
 
 (0 5 Moil. 34J. 378. x Coin. R, 37, kc.
 
 48 Of Leases undo* Powers, [Chap. III. 
 
 Accordingly, where there is a power to make a lease of a manor, and 
 every part thereof, so that such rent be reserved upon every lease as was 
 paid for two years before, and it happens that some part of the land. 
 was not leased at any rent within two years before ; a man may make 
 a lease of such land, reserving what rent he pleases, for the intent 
 appears to be, that be might make leases of the whole manor (a). 
 
 So, also, where a man had power to make leases of a rectory, tithes, 
 and other lands, reserving the ancient rent, it was held, that he might 
 make leases of tithes, although no rent can issue out of tithes ; but he 
 might demise them without any rent if it pleased him, for it appeared, 
 that tidies were within the power {b). 
 
 So, under a power to lease all manors, messuages, lands, &c, " so 
 as there be reserved as much rent as is now paid for the same," such 
 parts of the estate enumerated in the power as have never been demised, 
 may be let (c). 
 
 But under a power in a family-settlement to make ieases of all or any 
 part of the premises, reserving the ancient rent, lands always occupied 
 with the family seat cannot be demised j for in such case, the qualifi- 
 cation annexed to the power, " that the ancient rent must be reserved," 
 manifestly excluded the mansion-house, and lands about it never let : 
 the nature of the thing in such case, speaks the intent (d). 
 
 So, under the settlement of an estate, with a power to the tenant in 
 possession, to let all or any part of the premises, so as the usual cove- 
 nants be reserved, a lease of tithes, which had never been let before, 
 was held void. — In all these cases, the intention of the parties is to 
 govern the court in construing the power (e). 
 
 Every power, in the construction of it, is to be taken with such a 
 restriction, that the estate itself, which is subjected to the power, shall 
 not be destroyed by the exercise of it. Therefore, hi the case of 
 Winter and Loveday, Rokeby, J. held that, had the express words used 
 in that case, " so as it be not of the demesne lands" been left out, yet 
 there would have been a restraint by implication from making leases of 
 customary land held of the manor ; for if the customary land might be 
 demised, the manor would be destroyed, which, it must be presumed, 
 was not the intent of the parties [f). 
 
 One who has a power to grant a concurrent lease within seven years 
 of the expiration of the old, may grant a lease at any time on the sur- 
 render of the old one (g), 
 
 4. With respect to the quality and quantity of interest to be 
 granted. 
 
 A lease fur ninety-nine years of a charity estate, (a farm) as a hus- 
 
 (a) 5 Mod. 245, 37S. I Com. R. 37, &c. (/>) Ibid. & 1 Vent. 294, &c. cited. 
 
 (t) Doug. 565. (,/) 8 Mod. 249. Fort. 332. 
 
 (')jT, R. 665. (/) Towcll on Pow. 407. Vide ante, 5 Mod. 345, 378, &c. 
 
 (g) Com. Dig. tit. Estates, (C. :;,.)
 
 Sect. VII.] Of Leases under Powers. 4g 
 
 bandry lease, cannot stand without proof of a consideration, shewing 
 that it is fair and reasonable, and for the benefit of the charity. Under 
 the circumstances, long possession permitted, and the defendant being 
 the p Tsonal representative, such a lease was set aside without costs, and 
 without imposing an additional rent previous to the bill, but future 
 cases will not be so treated [a). 
 
 Upon a general power to make leases, without saying more, the law- 
 adjudges, that the leases ought to be leases in possession; for if upon 
 such power a lease might be made upon a lease, the party might, by 
 making infinite leases, detain those in remainder out of possession for 
 ever, which would be contrary to the intent of the parries and against 
 reason (b). 
 
 So, a general power to make leases for one and twenty years, does 
 not enable the party to make such a lease in reversion, by which a 
 widow would be deprived of the benefit of her jointure, to secure 
 which the land was settled by act of parliament: for, besides that 
 jointures are favoured in law, the statute intended not to give him 
 that liberty ; and, it being a liberty and power, it must be strictly pur- 
 sued (c). 
 
 If a man has power to make leases in possession or reversion, if he 
 makes a lease in possession once, he shall never after make a lease in 
 reversion ; for he has an election to do the one or the other, but not 
 both K d). 
 
 Devisee for life, with power to make leases for twenty-one years, 
 whereupon the old accustomed rent shali be reserved, makes a lease for 
 twenty-one years under the old rent, £sV. and a year before the expira- 
 tion of that lease, he makes a lease to another for twenty-one years to 
 begin presently •, this lease seems to be good within his power as a con- 
 current lease, because it is no charge upon the reversion, nor is there 
 any more than twenty-one years in tcto against the reversioner : but this 
 power would not warrant the making of leases in reversion, for then 
 he might charge the inheritance ad infinitum {e). 
 
 But notwithstanding, where one having power to make leases for 
 twenty-one years in possession, made a lease to A. for twenty-one 
 years in trust for the payment of debts, but the lease was made 
 to commence from a time to come, and so not pursuant to the power, 
 yet being made for the payment of debts, it was supported in 
 equity (/). 
 
 Under a power to lease in possession for one, two, or three lives, or 
 for thirty years, or any other number of years determinable on one, 
 two, ot three lives ; or in reversion for one, two, or three lives, or for 
 
 (a) io Ves. S5S- (b) I Brownl. 148. i Com. R. 39, &c. ante, 
 
 (0 Cro.Eliz. 5. (J) Ld. Raym. 267. 
 
 (<?) Powell on Pow. 428. Bac. Abr. tit. " Leases," 4:7, Leon, 147, 8. Hard, 412, 
 
 (/) Bac, Abr, Ibid, 4*8, Cha, Ca, 19, 
 
 £
 
 50 Of Leases under Powers. [Chap. III. 
 
 thirty years, or any other number of years determinable on one, two, 
 or three lives, a man cannot make an absolute lease in possession 
 for thirty years ; but an absolute lease in reversion, for thirty years, he 
 may (a\ 
 
 Where there is a power to grant leases in possession, but not by way 
 of reversion or future interest, a lease per verba de pr<zsenti> is not con- 
 trary to the power, although the estate at the time of granting the 
 lease, was held by tenants at will, or from year to year; if at the time, 
 they received directions from the grantor of the lease to pay their rent 
 to the lessee [b\ 
 
 So, (c) one under a power in a marriage settlement to lease for 
 twenty-one years in possession, but not in reversion, grants a lease to 
 his only daughter for twenty one years, " to commence from the day of 
 the date, * adjudged a good lease. — It was held that the word " from" 
 may mean either inclusive or exclusive, according to the context and 
 subject matter; and the court will construe it so as to effectuate the 
 deeds of parties, and not to destroy them. But the authority of this 
 determination has been much questioned. 
 
 Under a power in a will to lease in possession, and not in reversion, 
 a lease for years, executed the 29th of March to the then tenant in 
 possession, habendum as to the arable from the 13th of February pre- 
 ceding, and as to the pasture from the 5th of April then next, &c. 
 under a yearly rent, payable quarterly, on the 10th of July, roth 
 of October, 10th of January, and 10th of April, is void for the 
 whole, though such lease were according to the custom of the country, 
 and the same had been before granted by the person creating the 
 power [d). 
 
 Under a power to demise for twenty-one years in possession, and not 
 in reversion, a lease dated in fact on the 17th of February, 1802, ha- 
 bendum from the 25th of March next ensuing the date thereof is good, 
 if not executed and delivered till after the 25th of March, for it then 
 takes effect as a lease in possession with reference back to the date 
 actually expressed (e). 
 
 One had power in effect to make leases for the lives of A. B. and C. 
 and he makes a lease to them for their three lives, and the life of the 
 longer liver of them : and this was held to be sufficient within the 
 power, because, for three lives generally, and for three lives, and the 
 longer liver of them, is all one, since without such words it would 
 have gone to the survivor. — So, a lease to one for three lives, or to 
 three for their lives, is all one (f). 
 
 Where a man makes a settlement of the reversion of lands, demised 
 
 (a) Ld. Raym. 267. (J) Doug. 565. 
 
 (0 Cowp. 714. 2 Wils. 165. (</) 2 East's R. 376. 
 
 (') " East. 427. (/) Bac. Abr. tit. « Leases." 3 Keb. 44.
 
 Sect. VII.] Of Leases under Powers, 51 
 
 for life or years, to the use of one for life, with power to make leases 
 generally, he may make a lease during the continuance of a former lease, 
 to commence after the former ; as otherwise his power would be in- 
 effectual {a). 
 
 So, a fortiori, if a power expressly enable one to make leases in rever- 
 sion, such a lease will of course be good by virtue thereof (b). 
 
 Under a power to make leases " for ninety-nine years, or three lives 
 in possession, or for two lives in possession, and one in reversion, or 
 for one life in possession, and two in reversion," the party, during the 
 continuance of the first lease, made a lease for life to T. ; and the 
 question was, Whether the latter lease, being made whilst the lives in 
 the former lease were in being, was authorized by the power ? By 
 two of the justices, out of three, it was held, that had the words, « in 
 possession," and the words of the power been generally to make leases, 
 the case had been strong in favour of the lease, the settlement being of 
 a reversion; but the power being expressly to make leases in possession, 
 the lease in reversion was not within it ; and they noticed the particular 
 wording of the power to make leases, namely, " for two lives in pos- 
 session, and one in reversion ; ,r or " one in possession, and two in 
 reversion ;" so that it appeared, that the scope and intent was, never to 
 have an estate above three lives in being at one time (c). 
 
 The nature of a lease in reversion is this. In the most ample sense, 
 that is said to be a lease in reversion, which hath its commencement 
 at a future day, and then it is opposed to a lease in possession; for 
 every lease that is not a lease in possession, in this sense is said to be a 
 lease in reversion. Where mention is made of leases in reversion of a 
 power, this shall be intended of leases to commence after the end of a 
 present interest in being; which is the second notion of a lease in rever- 
 sion. But as a lease for life cannot be made to commence at a future day, 
 where a power is given to make leases for one or two lives in reversion 
 and to make leases for years, the very same expression (lease in rever- 
 sion) will have a different signification in the same conveyance : being 
 applied to a lease for life, it shall be intended of a concurrent lease, or 
 a lease of the reversion, viz. a lease of that land which is at the same 
 time under a demise ; and then it is not to commence after the end of 
 the demise ; but hath a present commencement, and is concurrent with 
 the prior demise ; but being applied to a lease for years, it shall be in- 
 tended of a lease which shall take its effect after the expiration or deter- 
 mination of a lease in being [d). 
 
 The law therefore, which is founded in reason and common sense, 
 considers " possessory'' and " reversionary," according to the natural 
 and ordinary import of those terms, (without annexing any artificial 
 idea to them,} as including the simple ideas of time present, and time 
 
 (a) i Com. R. 315. (i) 8 Rep. 69. 
 
 (0 Powell on Pow, 4*0. a Lev. 16;, &c. (d) j Mod. 245, 37S. 1 Com. R. 39, Sec, 
 
 E 2
 
 o2 Of Leases under Powers. [Chap. III. 
 
 to come : and consequently, that every subsisting Interest, or time not 
 present, is an interest or time to come a). 
 
 The circumstance of a second lease for years being granted to the 
 same lessee who holds under a former lease, to commence after the 
 expiration of such former lease, does not operate to make the latter a 
 continuation of the former lease, where the terms are granted by dif- 
 ferent deeds; although the residue of the time to come after the former 
 lease, together with the period for which the latter lease is granted, do 
 not in length of time exceed the limits fixed by the power: for the latter 
 will, notwithstanding, be considered as a reversionary lease, as much as 
 if it had been granted to a reversionary lessee {b). 
 
 But, if under a power to demise for fourteen years, a lease were 
 made of lands, C5V. habendum, for seven years, and so from seven 
 years to seven years, the latter, it seems, would be but a continuance 
 of the former term, and an addition to it, and not a remainder or future 
 interest ' c . 
 
 If there be a power to make leases in possession expressly, which 
 attaches upon an estate, part of which is in possession, and other part 
 thereof in reversion, at the creation of the power : the donee of the 
 power may immediately make leases in possession of the estate in 
 reversion, as well as of that in possession : for in such case, the word 
 " possession," in the power, refers to the lease, and not to the land [d). 
 
 But it seems, that if a power enable any one to make leases in rever- 
 sion, as well as in possession, and some part of the land subject to the 
 power be in possession, and other part of it in reversion, he cannot 
 make a lease in possession and another lease in reversion of the same 
 land ; but his power to make leases in reversion, will be confined to 
 such land as was not then in possession: and note the distinction be- 
 tween these two cases \e). 
 
 If a power be created to enable a tenant for life, to make leases for 
 one, two, or three lives, or for any term or number of years, deter- 
 minable upon one, two, or three lives, in possession, &c. of such part 
 and parts, and so much only of the manors, is'c. of the creator of the 
 power, as are then demised or granted for any such time, CSV. no lands 
 or hereditaments can be demised under such a power, but what are at 
 the time of the execution of the power under lease for one, two, or 
 three concurrent lives, or for any term of years, determinable upon 
 one, two, or three concurrent lives ; for the meaning of such restriction 
 is, that the candles shall be all burning at the same time [f). 
 
 A power to make a lease for three lives was held not to be well exe- 
 cuted in. law, by a lease for ninety-nine years, determinable upon three 
 lives. The reason seems to be, that the estates are different, one being 
 
 {a) Powell on Pow. 434. (/,) 5 T. R. 568. (e) I Lev. 45- 3 T. R. 462. 
 
 (';') Powell on Pow. 425. Bac. Abr. tit. Leases. Cro. Jac. 347. 
 
 (<r) Powell on Pow. 437. 1 Com. R. yj, ante. (/) Powell on Pow. J41. 7 T.R. 713.
 
 Sect. VII.] Of Leases wider Powers. 53 
 
 a freehold, and the other a chattel. Such was the construction in Whit- 
 /ock's case, (a) and such seems now to be the settled rule of law, not- 
 withstanding that the Judges, in 3 Keb. 746, thought the construction 
 too nice, and contrary to the intent of the parties, and though deter- 
 minations to the contrary are in the books (b . 
 
 An estate was settled on several tenants for life in succession with 
 remainders in tail, with power to every tenant for life, from time to 
 time by indenture to make leases for any term or number of years, not 
 exceeding twenty-one years or for the lire or lives of any one, two, or 
 three persons, so as no greater estate than for three lives be at any one 
 time in being in any part of the premises and so as the ancient yearly 
 rent, £sV. be reserved. Held first, thai the power only authorised either 
 a chattel lease not exceeding twenty-one years, or a freehold lease not 
 exceeding three lives, and that a lease by tenant for Hie for ninety-nine 
 years determinable 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 \ but the 
 special verdict finding that the tenant in tail had received the rent re- 
 served by such lease accruing after the death of the tenant for life who 
 made it, and who had not given any notice to quit, Held secondly, that 
 the receipt of rent was evidence of a tenancy the particular description 
 of which it was for the jury to decide upon, and for the defect of the 
 special verdict in this respect, a -venire de novo was awarded ; but the 
 court intimated that under the circumstances of the case, and the dispa- 
 rity of the rent reserved being 4/. 2s., while the rack rent value was 60/. 
 a year (though one of the lessees had been presented by the homage 
 as tenant after the death of the tenant for life, and admitted by the lord's 
 steward, and the 4/. 2s. reserved was more than the ancient rent , a jury 
 would be strongly advised, to decide against a tenancy from year to year (c ). 
 
 Powers to lease, habendum for lives or years, may be either absolutely 
 for one, two, or three lives ; or for an absolute term of years, as for 
 thirty years ; or qualified, as for any number of years, determinable upon 
 one, two, or three lives. 
 
 A man, having a power to grant leases, may do less than such power 
 enables him to do 5 or, if he do more, it shall be good to the extent of 
 his power. 
 
 Thus, where the city of London under a power granted by act of 
 parliament to lease for one and one-and-twenty years, granted a lease 
 for one and twenty, it was held no variance upon oyer of the indenture 
 in which such power was recited K d). 
 
 So, if a man hath power to lease for ten years, and he leaseth for 
 twenty years, the lease for twenty years shall be good for ten years of 
 the twenty in equity ; and so it has been settled several times (e) 
 
 So, where tenant for life had power to let leases for twenty-one 
 
 (a) 8 Rep. 70. B. % Str. 99a. S. P. (b) 8 Com. 69, 70. Bac. Abr. Tit. " Leases." 
 
 (V) 10 East, 158. (</) Bac. Abr. tit. " Leases." (/) r Chan. Ca. Z.l-
 
 54 Of Leases under Powers. [Chap. III. 
 
 years in possession, and he made a lease for twenty-six years, without 
 referring to the power; it was held that the first lease should be pre- 
 sumed to have been surrendered, and the remainder-man should be 
 bound for twenty-one years of the new lease (a). 
 
 If a man pursues all the requisites within his power, though he does 
 It by more deeds than are necessary, it will be good (b). 
 
 A power may be executed at different times, if not fully executed at 
 first, provided that the party, in the whole execution, does not transgress 
 the limits of the power (c). 
 
 Therefore if a woman, seised of an estate for life, with a power 
 to lease for three lives, or twenty- one years, marries, and then she 
 and her husband join in making the lease, and the i^uoband and 
 wife both die before the lease is expired ; here, though the husband, 
 in right of his wife, and she in her own, are possessed of an estate for 
 life, and therefore can as owners make a lease, and there appears no 
 intention of the parties, (imagining perhaps that they should have out- 
 lived the lease,} that this lease should be made by virtue of the power ; 
 yet because the lease, supposing it made by them as owners, cannot 
 have the effect the parties intended, for some it would have v viz. 
 it would be a good lease during the lives of the husband and wife,) yet 
 because it cannot have ail, it shall be esteemed to be made by virtue of 
 the power (d). 
 
 If the deed has not a full operation, except where it is in execution 
 of his power, it will notwithstanding be good ; as if tenant for life 
 make a lease, without taking notice of his power, it shall be an execu- 
 tion of his power to make leases ; for otherwise the lease will not have 
 an effectual continuance (e). 
 
 5. With respect to the rent. 
 
 There are two methods of leasing in common use in this kingdom ; 
 at the best rent, and upon fines, which as the lives or leases drop, arc 
 considered among the annual profits. 
 
 The latter mode is not very common in England, where the power 
 of leasing usually introduced in settlements requires the best rent to be 
 reserved, and expressly prohibits the taking of any fine or premium (f). 
 
 Where a lease is made under a power requiring the best rent to be 
 reserved, the question whether the best rent has been reserved must be 
 left to a jury.— Improvements by the tenant will not authorize a lease 
 at an undervalue, and if a fine be taken the lease cannot be supported, 
 though the rent be ever so considerable. The surrender of an existing 
 lease, and the grant of a new one at an increased rent is not equivalent 
 to taking a fine (g). 
 
 In a power to grant building leases, the term best rent must, although 
 not so expressed, be understood to mean the best rent which can be 
 
 (a) Amb. 740. (J) Com. Dig. Tit. « Poir," (C. 3.) 
 
 (0 1 Bl. R. 183. {J) 10 Mod. 36. (e) 1 Vent. 2*8. 
 
 (/) Sugd. on Powers, 511. Qr) Ibid. 511,512, 513.
 
 Sect. VII] Of Leases under Powers. 55 
 
 obtained with reference to the gross sum to be laid out by the tenant in 
 buildings or improvements [a). 
 
 A lease at 43/. a year granted under a power, directing the best rent 
 to be reserved cannot be impeached merely by showing that the lessor 
 rejected at the time two specific offers, one of 50/. and another from 
 50/. to 60/. from other tenants, though the responsibility of such other 
 tenants could not be disproved ; for in the exercise of such a power 
 where fairly intended and no fine or other collateral consideration is re- 
 ceived or injurious partiality plainly manifested by the lessor, all other 
 requisites of a good tenant are to be regarded, as well as the mere 
 amount of the rent offered, unless something extravagantly wrong in the 
 bargain for rent be shewn. The best rent means the best rack rent that 
 can reasonably be required by a landlord, taking all the requisites of a 
 good tenant for the permanent benefit of the estate into the account J>). 
 
 The sufficiency of the rent must be governed by the consideration on 
 whom the onus of the repair is thrown (c). 
 
 A power was given to lease for twenty-one years reserving the best 
 rent, so as the lease should not contain any clause whereby authority 
 should be given to the lessee to commit waste, or whereby he should be 
 exempted from punishment for committing waste, and so as such lease 
 should contain, such other conditions, covenants and restrictions, as 
 were generally inserted according to the usage of countries where the 
 premises were situate. It was held that a lease was good ; though the 
 lessor thereby took on himself the repairs of the mansion house .ex- 
 cepting the glass windows', and covenanted that if he did not repair 
 it within three months after notice, the tenant might do so, and deduct 
 the expense out of the rent reserved ; and though the lessor covenanted 
 in consideration of a large sum to be laid out by the lessee in the repair 
 of the premises in the first instance, to renew during his the lessor's 
 life, at the request of the lessee, his executors, is'c. on the same 
 terms ; because this covenant only bound the lessor himself, and if the 
 best rent were not reserved upon such renewal, the lease would be 
 void against the remainder-man d\ 
 
 Therefore, if a power be to make leases, rendering the ancient rent, 
 a lease which does not reserve it will be void: as if the party leases two 
 acres with other land, and reserves the rent of the two acres for the 
 whole V\ By a reservation in a power to lease of the ancient and ac- 
 customed rent, is to be understood that which was reserved at the cre- 
 ation of the power, if a lease were then in being j or that which was 
 last before reserved, if no lease were then in being ; for he who created 
 such a power intended no more than that the lessor and lessee should 
 not be able to put the estate in a worse condition than it was in when 
 the power was created, but should keep it in the same plight and cou- 
 
 (3) Sugd. on Powers, 513. {b) 10 East, 273. (r) iz East, 305, 
 
 (J) Ibid. 305. ( f ) Com. Dig. tit. " 0. oir," (C. 6.)
 
 56 Of Leases under Powers. [Chap. III. 
 
 clition at least, as It was in when so settled. This was the opinion of 
 Lord Holt, who also observed, that without a certainty, the power could 
 not be executed even by reserving a sum in particular ; and, therefore, 
 he gave it as hi:, opinion, that upon any settlement where a power was 
 reserved to die tenant for life to make leases of the lands in that settle- 
 ment, (which were anciently and accustomably demised, and whereof 
 fines had been taken), at the ancient, usual, and accustomable rent, 
 for three lives, for one and twenty years, or any other number of years 
 determinable on three lives, that rent which was then or last before re- 
 served upon a lease in being of the same lands, or on a lease which 
 expired iait before the time of the settlement made, must be the sum 
 and no other [a). 
 
 But Lord Coiuper, in the same case, doubted as to this point, and 
 suggested, that suppose lands were leased once at a greater and twice 
 at a lesser rent, he took the rent of the former lease to be the ancient 
 rent : the last lease might be made by him that had the fee, who was not 
 bound to reserve the ancient rent, but might let it for nothing if he 
 pleased.— Soy bis lordship thought that this rule would likewise not 
 apply to lands anciently demised, whereof fines had been taken ; for 
 there the rents were more or less, as the fines were higher or lower (i>). 
 
 But it seems that, if the custom of the country where the lands lie 
 be to lease partly on a rent, and to take a fine for the remaining value, 
 then Lord Holt's mode of ascertaining the ancient rent is most rea- 
 sonable. — So, if such power be to lease, reserving so much yearly 
 rent, or more, as hath " been most accustomably" yielded or paid within 
 twenty years next before such lease thereof made, the reserved within 
 the twenty years must be the measure of the reservation upon leases 
 made by virtue of such power, although a greater rent hath been re- 
 served before the twenty years (c). 
 
 But if several rents have been reserved w'thin the twenty years re- 
 ferred to, Lord Holt's rule seems in that case the most proper to go by: 
 unless the leases on which the rent has been reserved within the twenty 
 years have been sometimes with fines and sometimes without, in which 
 case Lord Coioper's rule seems best (J). 
 
 Tenant for life under a power in a settlement to lease at the " usual 
 rent" may demise upon reserving the usual fines and rent, where the 
 usual profit had heretofore been made by fines ; for if the trustees under 
 the settlement were obliged to let the lands at a rack-rent, it might be 
 quite inconsistent with the nature of these estates (e). 
 
 If a lease be made under a power to demise, reserving the true and 
 ancient rent, and the rent reserved be not conformable to that both in 
 quantity ami quality, and manner of reservation also, the lease (it is 
 said) will be void (f). 
 
 (a) 3 Ch. Rep. 66. i Vera. 531, 541. Bac. Abr. tit. « Leasts." (l>) Ibid, 
 
 0) Powell on Powers, 551, (J) Ibid. (,) 3 Burr. 1446. 
 
 (J') Powell on Few. 552.
 
 Sect. VII.] Of Leases under Powers. 57 
 
 Thus where rent anciently payable in gold, was in a new lease un^er 
 a power so restricted made payable in silver, such lease would not 
 bind : for the variation may be prejudicial to the remainder-man. But 
 a reservation of " eight bushels" where " a quarter of corn" was 
 mentioned in the power, will be good : for the variation is only in 
 words [a). 
 
 If a tenant in tail be of two farms, under a settlement, one of which 
 ha? been always let at 20/ rent, and the other for 10/. rent, he may 
 not, it is said) by virtue of such power, make a lease of both for 
 twenty- one years, rendering an entire rent of 30/. (b) 
 
 So, t.vo farms, usually let to separate tenants, cannot be let by one 
 lease to one tenant, by 32 H. 8. c. 28. though a greater rent be re- 
 served c . 
 
 For the intent of such reservation is, not only that the old sum of 
 money shall be reserved, but that it shall be issuing out of the old 
 land {d\. 
 
 Improving the estate will not be considered such an alteration as 
 Vane the rent, by making it to issue out of other hereditaments than 
 those contained in the power : as where the tenant entered and built a 
 new bouse upon the land, and then made a lease for twenty-one years, 
 reserving only the ancient rent, £sV. the court would not suffer an ob- 
 jection to it to be argued (e). 
 
 If a power to lease be, provided that two parte in three of the im- 
 proved value be reserved as a rent, the reservation may be made in the 
 terms of the power ; and the constant payment of such a sum as 
 amounted to that at the time of making such a lease, will be good, 
 whether the tenements that are the subjects of it rise or fall in value (f). 
 
 But in general, it seems necessary, that the sum intended to be re- 
 seived under such provisoes in family settlements and conveyances, 
 should be specifically stated in the lease : for otherwise the remainder- 
 man may be put to infinite trouble and expense. It hath, therefore, 
 been held, that the reservation, may not be made in the same or as* 
 general terms as the power itself is ; as, by simply transcribing the 
 clause respecting the reservation of the ancient and accustomable rent, 
 CSV. in the instrument creating the power to lease, into the lease, leaving 
 the necessity of averring and proving what was the ancient and ac- 
 customable rent to the tenant for life or remainder-man (g). Tenant 
 for life with power to make leases of all lands anciently demised, re- 
 serving the ancient rents or more, and of other lands reserving the best 
 and most improved rents that could be got, makes a lease of part of the 
 premises usually demised reserving " the old accustomed rents •" and 
 a lease of other part not usually demised, reserving " such sum of 
 
 (a) Resol. in 5 Rep. 3, 6. Mountjoy's Case. (/>) Ibid. (c) Cro. Car. 23. 
 
 (d) Powell on Powers, 554. (?) 1 Leon. 147. (/) Powell on Power? ,SS5- zCk.R.&z* 
 
 f?) Powell in ante 3 £ro. Par. Ca. 248. Gilb. E<j. R. 45. S.C, % Vetn. jji, 542-
 
 5S Of Leases under Powers. [Chap. III. 
 
 money as should amount to the best and most improved yearly rent :" 
 both these leases held to be void as against the remainder-man ; the 
 first not being warranted by the power, and the other for the uncertainty 
 of it (a). 
 
 So, where tenant for life had made a lease of the lands not usually 
 letten, reserving therefore the best and most approved rents for the 
 same, according to the words of the power ; this was held to be so ut- 
 terly uncertain, that nothing was offered to support it (£\ 
 
 But where such rent is ascertainable, it is otherwise j for id certum 
 tst quod certum reddi potest. — Therefore, where a power was, by a settle- 
 ment to make leases of land anciently demised, reserving at least \id. 
 for every Cheshire acre ; and a lease was made of all the lands an- 
 ciently demised, reserving all the rent intended to be reserved : though 
 these words were very general and uncertain in themselves, the reser- 
 vation was held gcod, because it might easily be ascertained by the re- 
 ference of the 12*/. at least for every Cheshire acre, for it is known 
 what a Cheshire acre is ; and that may by admeasurement be at all times 
 ascertained, and depends not upon uncertain evidence (c\ 
 
 If the lease be of lands subjected to a power, together with other 
 lands not so subjected, and there be equivocal words, under which the 
 reservation of the rent may be referred to, namely, whether to the pre- 
 mises on which the power attaches, or otherwise, and the lease cannot 
 take effect unless the rent be to issue out of those premises : then the 
 better opinion seems to be, that the reservation shall be taken as refer- 
 able only to the premises su'jpcted to the power, and that by that means 
 the lease may be made gcod [d). 
 
 It seems that several leases may be made in the same deed, under 
 such a power, if the reservations be several and certain. — Thus where a 
 lease for a term of years was made of the manors of A. B. and C. by 
 indenture, rendering annually to the lessor, his heirs and assigns, for 
 A. 1 o/. for B. 61. for C. 4/. at the feast, &c. and payable at one place 
 out of the manor, with a condition to re-enter into the said three 
 manors for non-payment of the said rents, or any of them, or any part 
 or parcel of them within a month after the said feast, ^fc. The lessor 
 entered upon the lessee into all the three manors, for rent of one of the 
 manors in arrear ; and one point was, whether the several reservations 
 of the rent, were several tenures, demises, reversions, and rents, and to 
 be avowed for severally ? Three of the justices held that they were : 
 but Dyer J. held not, because they were not divers leases, but one 
 lease to one person, and one limitation of an estate, and consequently 
 that there was but one reversion to which the rent was incident ; and 
 that therefore, the several reservations of several rents could not change 
 
 (a) 6 Bro. Cas. in Pari. 145. (4) Powell ut ante. 
 
 (c) Bac. Abr. tit. " Leases." 3 Ch. R. 61, 76. (d) Powell on Powers, 567. I Vent. 
 33%i3yj> 1 Vent. 228. ante.
 
 Sect. VII.] Of Leases tinder Pozcers. 59 
 
 the nature of the reversion which was the principal, the rent being only 
 accessary. Ideo quare {a). 
 
 If there be a difference as to the time of the payment of the rent, so 
 that it be not payable at the same periods as anciently, that will vitiate 
 a lease, under a power restricted to be made, rendering the true and 
 ancient rent (b). Thus a reservation of the rent at two days, where the 
 rent was formerly reserved and payable at four days, was held, in 
 Mcantjoys, case (r), to make the grant and render void ; because it was 
 ad nocamentiini) to the injury of the heirs in tail, which was restrained 
 by the srafute that created the power : for it was more beneficial for them 
 to have it paid at four feasts than two j and all beneficial qualities of 
 the rent ought to be reserved and observed (J). 
 
 In tli is respect, leases under powers in settlements differ from eccle- 
 siastical leases under 13 Eliz. (of which hereafter:) for in them a re- 
 servation at two davs when the rent was payable formerly at four days 
 does iot vitiate the lease, because the statute does not avoid such lease 
 if the accustomed yearly rent or more be reserved (e). 
 
 The whole rent must be payable annually during the whole term ; 
 for the design of the donor is not answered, unless a continual revenue 
 be yearly payable by compulsion of law, and not in expectancy, or in 
 futuro {/). 
 
 But, under a power to make leases, reserving the ancient yearly rent 
 annually, yet if it were reserved upon a day before the year was up, as 
 if the year ended at Christmas, and it was reserved at Michaehnas, it 
 would be well pursuant to the power (g). 
 
 Heriots and the like need not be reserved in a lease made under % 
 power, restrained to be rendering the true and ancient rent j for they 
 are casual and accidental services, and therefore fall not within the 
 meaning of such restriction (h). 
 
 Although in common law conveyances, no rent can be reserved but 
 to the lessor, donor, or feoffor, and his heirs, who are privies in blood, 
 and not to any who is privy in estate, as, to him in reversion, remain- 
 der, &c. yet in the case of powers the reservation by tenant for life is 
 good, and shall enure as rent to the remainder man, and he may dis- 
 train for it (*) ; and this, though it be reserved to such tenant for life, 
 and his heir§ ; for powers take effect through the medium of the statute 
 of Uses, which executes the possession according to the limitation of 
 the use, and such lease, when made, takes effect out of the uses of the 
 settlement by which it is created k). 
 
 Thus, where a question was, whether the words of the reservation 
 did not make that which was called a rent, to be only a sum in gross, 
 
 (a) Powell on Powers, 569. Dyer, 308. 6. PI. 75. Vide Postea. 
 
 (l>) Powell on Powers, 571. (c) Ante. (</) 32 H. 8. 28. 
 
 (?) Cro. Jac. 76. (/) I Burr. 121. (g) 2 Ld. Ray. ■2198. 
 
 {k) Cro. Jac. 76. I Com. R. 312. (J) Powell on Powers, 573. (4) 8 Rep. J9.
 
 60 Of Leases under Powers. [Chap. III. 
 
 and not rent, and so turn the reservation of rent into a condition ? the 
 Court held that the land was distrainable for it as for rent, and that it 
 was not a payment upon condition [a] ; one reason for which was, that 
 it was not che intent of those who were parties to the indenture to make 
 it a condition, but rather to make a limitation of the rent for the uses 
 mentioned-, and that it could not ensue the nature of a condition, for 
 it could not be taken as a condition at common law, because those in 
 the remahider were mere strangers to the condition ; and a condition 
 united to the use of the term it could not be ; for, if it were so, he in 
 remainder being a stranger, could not in law take advantage of it : but 
 if it were rent, he immediately in remainder might distrain for the rent, 
 when it incurred due, by reason of the statute 17 H 8. c. 10. of Uses, 
 by which it was enacted, " that the intent of the parties should be ob- 
 served." Therefore, if the use were so limited that a stranger should 
 have the rent, CSV. he should have it, and might distrain for it (b). 
 6. With respect to the form of the lease. 
 
 In the usual power of leasing, besides the reservation of the best rent,, 
 it is commonly required that the lessee covenant for payment of the 
 rent, that a clause of re-entry in default of payment be inserted, that 
 the lessee be not made dispunishable for waste, and that he execute a 
 counterpart ; and if these conditions are required, and any of them be 
 not complied with, the lease will be void. It should seem indeed that 
 the circumstances usually made requisite in powers of leasing, must be 
 considered as implied, although not expressly required (<r). 
 
 Under a power to lease reserving a condition of re entry for non-pay- 
 ment of rent for twenty-one days, a lease granted with a condition for 
 re entry for non-payment of rent within twenty days, in case no sufficient 
 distress could be taken on the premises, whereby to levy the rent, &c. is 
 not a good execution of the leasing power ; because such conditional 
 power of re entry is less beneficial to the remainder-man than an abso- 
 lute power of re-entry on non-payment of rent (//). 
 
 If contrary to the clause that the lessee be not made dispunishable 
 for waste, he be impowercd to work unopened mines [e\ , to fell timber, 
 or the like, the lease is void ; unless in the case of a building lease, 
 where the clause would be deemed repugnant to the power, and the 
 lessee might pull down old buildings, lsc. in order to erect new ones (f). 
 Where a power to lease was restrained to be executed, reserving an- 
 cient, usual, and accustomed rents, heriots, boons, and services, a co- 
 venant "to keep in repair," was held to be " an ancient boon," and 
 the omission of it was deemed fatal (g). 
 
 Under a power to a tenant for life to lease for years, reserving the 
 usual covenants, tsV. a lease made by him, containing a proviso, that in 
 case the premises were blown down or burned, the lessor should rebuild, 
 
 (a) Ander. 278. (Z>) Stat. 27 H. 8. c. 10. (c) Sugd. on Powers, 527,530. 
 
 {i) 13 East, R. 118. (,) Ambl. 740. (/) Willes, 169. (g) Cited ibid. u%:
 
 Sect. VII. J Of Leases under Powers. 6l 
 
 otherwise the rent should cease, is void ; the jury finding that such co- 
 venant is unusual [a). 
 
 What covenants are usual or not is a question of fact, it seems, for 
 the decision of a jury: for Buffer], in the preceding case, observed, 
 that " the Court were relieved from determining whether the covenant 
 was usual or not ;" because the jury had expressly found that it was 
 unusual b). 
 
 But if the covenants in a lease under such a power be upon the 
 whole, such as leave the parties upon the same footing as under former 
 leases, (as where it appeared that what was thrown on the landlord was 
 compensated by what was paid by the tenant), their differing in trivial 
 circumstances will not be material [c), 
 
 A renewable lease was held not to be inconsistent with a covenant 
 to let and manage to the best advantage, with reference to the subject 
 which was a trust for creditors (d). 
 
 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 (<?). 
 
 Livery is not necessary to a lease for lives, under a power, (though it 
 be incident thereto at common law,) and it hath been held to be a for- 
 feiture of the power ; but Lord Hale conceived it was not a forfeiture, 
 because a lease by virtue of a power, takes effect out of the settlement 
 that gives the power, and by sealing the lease the power is executed ; 
 and then the livery comes too late to affect it. 
 
 If a power be to A. or his assigns, to make leases, &c. the powe? 
 runs with the estate to the assignee in deed, or in law. — If, therefore, 
 a power be given to a lessee for years and his - assigns, to make leases 
 for lives, such power goes to his executor, though only an assignee in 
 law, or to the assignee of the executor. But a power to an executor 
 to make leases does not extend to the executor of his executor (f). 
 
 A power under an Act of Parliament to lessee, his executors, ad- 
 ministrators, and assigns, to grant building leases, does not extend to 
 the tenant in a renewed lease, according to the usual courseof church 
 leases (g). 
 
 If A. settles land to the use of himself for life, with power to make 
 leases, and afterwards to D. upon such trust as he shall afterwards 
 declare ; if A. declares the trust for payment of debts, and afterwards 
 leases at a small rent, the lease is not defeated by the execution of his 
 power, for it is precedent to it (h). 
 
 So, if a man having a power annexed to his estate, charge his estate., 
 and afterwards executes his power, the estate which arises by the exe- 
 cution of the power shall be subject to the charge during the estate: 
 
 (a) i T. R. 705. (J) Powell on Powers, .579. (<0 K>id. Doug. 565. 
 
 (</)i3 Ves.547. (<•) i Burr. 124. (/) I Y«!t.340. »Jou. IIO. 
 
 fe) 13 Yes. 255. (*) Skill, 437,
 
 62 Of Leases by Tenant for Years. [Chap. III. 
 
 as if tenant for life, with power to make leases, grants a rent-charge, 
 and afterwards makes a lease, the lessee shall take, subject to the rent- 
 charge during the life of the lessor (a). 
 
 A lease under a power by a person having only a particular es- 
 tate, if not conformable to the power, is not good at law ; but when 
 the persons granting the lease, have at law the inheritance, with di- 
 rections only how they are to execute leases, the legal estate passes {b). 
 
 If there be a power of revocation, and a lease for years is made, such 
 power is suspended quoad the term, but after it is good [c). 
 
 Section VII T. Of Leases by Tenant for Years. 
 
 As a lessee or tenant for years may assign or grant over his whole 
 interest, so he may grant it for any fewer or lesser number of years 
 than he himself holds it ; and such derivative lessee is compellable to 
 pay rent, perform covenants, &c. according to the terms agreed in such 
 grant or assignment. Also it is said [in Broke title Distress 7,] that a 
 termor so assigning may distrain for the rent, without any power re- 
 served for that purpose ; though a person who assigns his whole in- 
 terest cannot, because he has no reversion (d). 
 
 But such derivative lessee is not liable (to the original lessor) for the 
 rent reserved on the original lease, otherwise than as his cattle, (£sV.) 
 may be liable to a distress for rent-arrear to the original lessor, as any 
 stranger's levant and couchant may be ; for there is no privity between 
 him and the original lessor, as there is between a lessor and an as- 
 signee : and therefore such an one, though he take the whole term 
 except one day, shall not be liable to any of the covenants in the ori- 
 ginal lease (e). 
 
 Section IX. Of Leases by Tenant from Year to Year; 
 or for a less Term. 
 
 Any one, possessed of a certain quantity of interest, may alienate 
 the whole, or any part of it, unless restricted from so doing, bv agree- 
 ment with the party from whom he derives that interest or estate, or by 
 the terms upon which he takes it. 
 
 In fact the tenant has it as a right incident to his tenancy to make 
 a sub-tenancy, in order to do which, it is by no means necessary to have 
 the first landlord's assent : the law gives him authority to assign his 
 interest (f). 
 
 A tenant from year to year, therefore, may assign his term, or may 
 
 (<j) HarJ. 415. (£) 13 Ves. 580. (c) I Mod. 114. 
 
 (d) Bac. Abr. tit. " J-easrs," (») Ibid. (/) 1 East, R. 598. T's M. S, S, s. c. 
 
 3
 
 Sect. X.] Of Leases by Corporations. 63 
 
 under-let part of it, as for three quarters of the year, or so many months 
 t£fc. So, upon the same principle, one possessed of lands or tenements 
 for a less term, as for half a year, a quarter, or a month, or the like, 
 may grant his interest, however small the quantity, or any portion of 
 it, to another: for, while such interest endures, he has the absolute 
 disposition of it, unless some agreement subsists between him and his 
 lessor, that by circumscribing his power, qualifies that disposition. 
 
 A tenant at will, however, cannot lease, for there can be no such 
 thing as an under-tenant to a tenant at will ; the demise itself would 
 amount to a determination of the will. Neither can he surrender, any 
 more than he can grant ; for, to surrender also, would be to determine 
 his will, and relinquish his estate (a). 
 
 As a tenant at will cannot grant or surrender, so a fortiori cannot a 
 tenant at sufferance. 
 
 Sect 10 x X. Of Leases by Corporations. 
 
 With respect to what acts a corporation aggregate must do by deed, 
 and what it may do without deed, it is a question which seems by the 
 old books, to have been the subject of considerable controversy among 
 the Justices. Some go so far as to say, that without deed, a corpora- 
 tion cannot do any act whatever. One makes a distinction, which 
 seems to be founded in good sense, between the case of a corporation 
 aggregate, consisting of many persons, one capable, and the other in- 
 capable, as abbot and convent, and corporations aggregate of many 
 persons capable, as mayor and commonalty, or dean and chapter j the 
 former, he seems to intimate, may do many acts without deed, because 
 the abbot is the only person capable, and the oracle of the whole, the 
 rest being incapable of any act, because they are dead in law j but cor~ 
 porations of the other kinds being composed of persons, all of whom 
 are capable of action, there is no individual who can be considered as 
 the oracle of the whole, and therefore they can sper.k only by their deed 
 txecuted in due form (b). 
 
 They can neither make a disposition of their property, nor do any 
 act relating to it, nor receive a grant, without deed ; thus they cannot, 
 without deed, make a lense for years, nor grant a licence to take away 
 their trees •, and if a disseisin be made to their use, they cannot agree 
 but by writing under their common seal (<:). 
 
 But though they cannot make a lease without deed, yet before the 
 statute of Frauds, a lease made by them might, without deed, have 
 been granted over by the lessee. 
 
 («) i but. ;7. a. Doug. 283, Cxo. Eliz. 156. (1) Ky. on Corp. 2/9. (<•) Ibid. 263.
 
 64 Of Leases by Corporations. [Chap. III. 
 
 So, it is said, that if a lease for years be made to a corporation who 
 cannot take without deed, and they grant it over, the grantee may 
 entitle himself thereto, without shewing the deed ; because, the lease 
 of the thing in its nature, might have passed without deed, although 
 the persons who took it could not take it without deed : also, his pos- 
 session is some privilege for his title {a). 
 
 If a lease for years be made to a corporation aggregate of many, 
 they cannot make an actual surrender thereof, but by deed under their 
 seal : but if they accept a new lease thereof, this is a surrender in law 
 of their first lease, and may therefore, by the statute of Frauds, be 
 without writing \b). 
 
 Neither can a corporation aggregate without deed, authorize their 
 servant or agent to enter into land on their behalf, for a condition 
 broken ; though this does not seem to have been aiways free from 
 doubt .c). In one place it is said, that a man cannot justify as servant 
 to a corporation, without shewing a deed of retainer, and it is con- 
 trasted with the case of a man avowing as bailiff to a corporation, which 
 may be done without deed. In another place, where it is reported to 
 have been said by Littleton, that it was the opinion of all the Judges in 
 the Common Pieas and King's Bench, that an assignment of auditors 
 by a commonalty is good without deed, it is added, " and so of a justi- 
 fication by their commandment." In a third place, it is said to be the 
 better opinion, that he who pleads the freehold of dean and chapter, 
 and that he entered by their commandment, ought to shew r a command 
 in writing ; and the same of a servant of mayor and commonalty. In 
 another place, a distinction is mado between a corporation which has a 
 head, as mayor and commonalty, and a corporation without a head ; 
 in the first case, it is said, that a man may justify entering into land 
 by the commandment of the mayor, without writing j in the latter, that 
 a command to enter must be by writing. — Rolle lays it down as clear 
 law, that " a corporation aggregate cannot command their bailiff to 
 enter into land of their own leasing for years, for a condition broken 
 without deed ; for such commandment without deed is void (d) :" 
 and this is consonant to the principle, that, where the interest or title 
 of the corporation is concerned, their officer must be appointed by 
 deed. 
 
 It seems however to have beep generally admitted, that a bailiff 
 might be appointed to take a distress without deed. It is even said, 
 that " it is not necessary that he should be made bailiff before he dis- 
 train ; it is sufficient if the corporation agree to it afterwards, for that 
 his being bailiff is not traversable, and a member of the corporation 
 may distrain in right of the corporation, and justify as bailiff." Again, 
 
 (") Cr °- Jac no. (/) Bac. Abr. tit, Corporations, (E. 3.) (*) Ibid. 162. 
 
 (<0 1 RoL 514.
 
 Sect. X.] Of Leases by Corporations. 05 
 
 it is said, a man may justify as bailiff" to dean and chapter, and the 
 like, without shewing the deed constituting him bailiff :" and in more 
 modern times, it has been laid down as a rule, that " a corporation 
 aggregate may appoint a bailiff to distrain without deed or warrant, 
 because the distress neither vests an interest in them, nor devests one 
 out of them (a)." 
 
 Where any personal act is necessary in the case of a corporation, 
 that act must be done by attorney appointed by deed under their com- 
 mon seal b\ 
 
 Thus, if they accept rent from the assignee of a lease made by them, 
 that must be by warrant of attorney, in order to discharge the ori- 
 ginal lessee : unless the corporation have a particular officer, whose 
 business it is to manage the revenues ; as is the case of the city of 
 London. So, wherever delivery of a deed is thought necessary, that 
 must be by attorney, who must have a letter of attorney for the pur- 
 pose (c). 
 
 But in an ejectment by a corporation against a tenant from year to 
 year, a notice to quit given by a person acting as steward of the cor- 
 poration, is sufficient, without evidence that he had an authority under 
 seal from the corporation for this purpose 'd). 
 
 A dean and chapter made a lease for three lives, and a letter of 
 attorney to deliver it on the land. Twisden J. thought the letter was 
 void, the lease being a perfect lease by sealing, and the delivery after- 
 wards insignificant ', but Hale C. J. observed, that since lie had sate in 
 the court, it had been ruled, that the latter execution was good, and 
 that the lease, on being sealed, was but an escrow, where the letter of 
 attorney was delivered at the same time (e). 
 
 On evidence at a trial in ejectment, the case was this. — A dean and 
 chapter having a right to certain laud, but being out of possession, 
 sealed a lease with a letter of attorney to deliver it upon the land, which 
 was done accordingly ; and this was held to be a valid transaction, on 
 the ground, that though putting the seal of a corporation aggregate to 
 a deed be equivalent to a delivery, yet the letter of attorney to deliver 
 it on the land, suspends the operation of it till actual delivery of it by 
 the attorney (J). 
 
 A deed by a corporation out of possession, containing a lease of land 
 and letter of attorney, is not good under the common seal, if the attor- 
 ney does not deliver it upon the land (g). 
 
 In ejectment, the plaintiff declared upon a demise made to him by 
 
 the alderman and burgesses of , without setting forth that it was 
 
 by deed, or under the seal of the corporation, and on a writ of error, 
 it was held well enough j for that this being a fictitious action to try 
 
 (a) Kyd. on Corp. 260. (i) 'bid. 268. (c) Ibid. 269. 
 
 {J) 2 Campb. R. 96. (e) Kyd. on Corp. z;c. (/) Ibid. (g) Coir. Di s . tit. Foit. (A, 4)
 
 66 Of Leases by Corporation*. [Chap. III. 
 
 the title, the demise need not now be set out to have been made 
 by deed {a\ 
 
 It is a general rule, that a corporation cannot take but by their cor- 
 porate name: it is also 3 general rule, that it cannot grant but by its 
 proper name of incorporation, though every minute variation in the 
 name is not material to avoid a grant lb). 
 
 As to naming the corporation, we shall only observe, that corpora- 
 tions aggregate, as dean and chapter, mayor and commonalty, warden 
 and fellows, ejrV. may make or confirm leases, without expressing 
 either the christian or surname of the dean, mayor, warden, C5V. be- 
 cause in their politic capacity, as a corporation aggregate, they continue 
 always the same, and are said never to die ; but in leases or confirma- 
 tions by a bishop, dean, mayor, &c. or other sole corporation, both 
 their christian and surname, or at least their christian name, ought to be 
 expressed, [as John bishop of P.] because they are subject to death 
 and succession, tfc. and therefore must be particularly named, to 
 shew whose lease, il'c. it was, and so, some hold too, in the first 
 case (c). 
 
 Where a corporation, declaring in a covenant by their modern 
 name, stated that citizens, l£c. were from time to time immemorial 
 incorporated by divers names of incorporation, and at the time of mak- 
 ing the indenture by A. B. declared on, were known by a certain other 
 name, by which name A. B. granted to them a certain water course, 
 and covenanted for quiet enjoyment : held that the deed granted the 
 water course to them by such name was evidence as against the defend- 
 ants, who claimed under the grantor, that the corporation was known 
 by that name at the time, upon an issue taken on that fact [d). 
 
 A corporation aggregate may take any chattel, as bonds, leases, Sec. 
 in its corporate capacity, which shall go in succession, because it is 
 always in being r). 
 
 But regularly, no chattel shall go in succession, in case of a sole 
 corporation. By custom, however, it may : as in the instance of the 
 chamberlain of London, — Therefore, if a lease for years be made co a 
 bishop and his successors, and the bishop dies, this shall not go to his 
 successors, but to his executors (J j. 
 
 A corporation cannot be sued in an action of assumpsit. 
 A covenant in a corporation lease, to renew upon the falling in t( of 
 one life for ever :" there is no equity to extend it to the case where two 
 *re suffered to fall in, although a compensation be offered (g\ 
 
 This subject is connected with that which follows; other information 
 therefore will be found under the next article. 
 
 (.-) Caitb. ,;</:. Corn. Cro. J.ic. 613, denied by Holt C. J. to be law, in 1 I.u. Raym. i;,6. 
 (/>) [bid. 2.-4,7. (/; Z Inst. 666. Bac. Abr. tit. Leases, (G. 3.) (./) 10 Easr, 487. 
 
 IHc. Abr. t;t. Corpcratious. (E. 4-) (/; I bid. {«) j Bro. R. j: 7 .
 
 Sect. XL] Of Leases by ecclesiastical Persons, 67 
 
 Si en on XI. Of Leases by ecclesiastical Persons. 
 
 As to leases by ecclesiastical persons ; bishops with the confirmation of the 
 dean and chapter , parsons or vicars with the consent of their patrons and 
 ordinaries, archdeacons, prebends, and such as are in the nature of 
 prebends, as precentors, chanters, treasurers, chancellors, and such 
 like; also, masters and governors, and fellows of any colleges or 
 houses (by what name soever called) deans and chapters, masters or 
 guardians of any hospital, and their brethren, or any other body- 
 politic, spiritual and ecclesiastical, 'c:::currcntibus his qinz in jure requi- 
 runtur) might, by the ancient common law, have made leases for lives 
 or vears, or any other estate of their spiritual or ecclesiastical living, for 
 any time without suit or limitation [a). 
 
 By the before-mentioned statute, of 32 H. 8. c. 28. bishops and the 
 rest of the said spiritual persons, (except parsons and vicars) may, at 
 this day, make leases of their spiritual livings fir three lives, or twenty-cne 
 \ears, and such leases ivill be good both against themselves and their successors. 
 But, in order to be binding, they must have the effect of ail the quali- 
 ties or properties before-mentioned and required by the said statute, in 
 the lease made by tenant in tail, and be made after that pattern. But 
 with respect to the old lease being surrendered, there is an exception in 
 favour of a bishop ; fcr if he make a lease for twenty-one years to come 
 to one man, and then, within a year alter, make another lease to another 
 for twenty-one years, to begin from the making of it, this, so as it be 
 confirmed by dean and chapter, is resolved to be a good lease. A lease 
 by a bishop, wherein more than the old rent was reserved, was held 
 good •, two of the Judges however, who were absent when the case was 
 argued, were of a different opinion b). 
 
 Next follows, in order of time, the disabling or restraining statute, I 
 Eliz. c. jq. (made entirely for the benefit of the successor) which enacts, 
 that all grants by archbishops and bishops, (which include even those 
 confirmed by the dean and chapter; the which were good at com- 
 mon-law) other than for the term of one and twenty years, or three 
 lives from the making, without reserving the usual rent, shall be void. 
 Concurrent leases, if confirmed by the dean and chapter, are held to 
 be within the exception of this statute, and therefore valid ; provided 
 they uo not exceed together with the lease in being", the term per- 
 mitted by the act. But, by a saving expressly made, the statute did 
 not extend to any grants made by any bishop to the crown : the statute 
 1 % 1. c. 3. however, extends the prohibition to grants and leases made 
 to the king, as well as any of his subjects. — Next comes the statute 1-^ 
 Eliz, c. 10. explained and enforced by the statutes 14 Eliz. c. 11. cs 3 14. 
 t8 Eliz, c. 11. and 43 Eliz. c. 29. which extends the restrictions 
 
 00 She-. Tcvch. 2S1. >b) j Md, r r.] 
 
 F 2
 
 €S Of Leases by ecclesiastical Persons. [Chap. III. 
 
 hid by the lasNmentioned statute on bishops to certain other inferior 
 Corporations, both sole and a- "rebate -'a* 
 
 These statures are, however, in some respects altered by stat. 39 
 tf 4 ". G. 3. ■:. 41. s. 1. whereby it is enacted, that where any part of the 
 possessions of any archbishop, bishop, master, and fellows, dean and 
 chanter, master or guardian of any hospital, or any other person or 
 persons,, or body or bodies politic or corporate, having any ecclesiastical 
 living, sh ill be demised by several leases winch was formerly demised 
 by one, or where a part shall be demised for less than the ancient rent 
 and the residue shall be retained in the possession of the lessor ; the 
 several rents reserved on the separate demises of the specific parts shall 
 be taken to be the ancient rents within the meaning of the statutes 32 
 J-J. 8. c. 28. t Eliz. c. 19. 13 Eliz. c. 10. and 14 Eliz. c . 1 1 . 
 
 Section 2. provides, that no demise made before passing the act shall 
 be valid, unless the several rents reserved upon the separate demises of 
 separate parts of tenements accustomably demised under one lease, or 
 if part be reserve. 1 in the possession of the lessor or lessors, uidess the 
 rent reserved on the parts'demised shall be at least so far equal to the 
 whole amount of the ancient rent or rent?, that the part not demised 
 shall be sufficient to answer the difference. 
 
 Section 3 provides, that where the whole of such demises shall in 
 future be demised in parts, the aggregate rents reserved shall not be 
 less than the accustomed old rent, and so in proportion, where a part 
 shall be retained in possession by the lessor. 
 
 Section 4. provides, that no greater proportion cf the accustomed 
 rent shall be reserved by any separate lease than the part of the pre- 
 mises demised will bear 
 
 Section 5. provides, that where any specific tiling shall have been 
 reserved by the lessor, it may be charged on a competent part of the 
 premises ; and in case sueh provision shall have been made for pay- 
 ment of anv sum of money, stipend, ejv. it shall be deemed lawful if 
 the lands, Sec. charged be of greater annual value, exclusive of the 
 rent reserved. 
 
 Section 6. provides, that no lease shall be confirmed whereon no 
 annual rent is reserved to the lessors, C5 v. 
 
 Section 7 provides, that the act shall not authorize the reservation 
 of anv rent, on any sueh lease, made by any master, Igc. of any col- 
 lege, in any other manner than required by the 18 Eliz. c. 6. 
 
 Section 8. provides, that where payments have been reserved to 
 vicars, curates, schoolmasters, and other persons than the lessor, pro- 
 vision shall be made in leases for the future payment thereof out of 
 premises cf three times the annual value, exclusive of the rent, ex- 
 cent 'section 9.) sueh payment depends only on the will of the person 
 granting or renewing the lease. 
 
 0) 2 B!. Com. 5:0.
 
 Sect. XI-.] Of Leases by ecclesiastical Persons. 6') 
 
 Section 10. provides, that persons holding such leases in trust, or 
 granting under-leases of specific parts under covenants of renewal, may 
 surrender them, in order that separate leases may be granted by the 
 original lessors to the cestuique trusts, and under-lessees, on reasonable 
 terms, subject to the accustomed rent, Sc. and every such surrender, 
 and the new leases granted thereupon, shall be good in law and equity, 
 notwithstanding such under-lessees and ce.tuiaue trusts may be infants, 
 issue unborn, cV. or other persons incapacitated to act for themselves; 
 provided such new leases be for their benefit, and such be expressly 
 declared in the body of each lease. 
 
 From laying all which together, we may collect, that all colleges, 
 cathedrals, and other ecclesiastical, or eleemosynary corporations, and 
 all parsons and vicars are restrained from making any leases of their 
 lands, unless under the following regulations: i. They mu;t not exceed 
 twenty-one years, or three lives, from the making. 2. The accustomed 
 rent, or more, must be yearly reserved thereon; respecting which, the 
 first sections of 39 and 40 G. 3. are particularly explanatory. 3. Houses 
 in corporations or market-towns may be let for forty years, provided 
 they be not the mansion-houses of the lessors, nor have above ten acres of 
 ground belonging to them, and provided the lessee be bound to keep 
 them in repair; and they mav also be aliened in fee simple for lands 
 of equal value in recompense ■ a. ', therefore, a bond or covenant for 
 rendering or making a lease within a city or town may be enforced (b). 
 4. Where there is an old lease in being, no concurrent lease shall be 
 made, unless where the old one will expire within three years c . 
 Since the statute of Frauds and Perjuries, (29 C. 2. c. 3.) which requires 
 all surrenders to be in writing:, it was usual to have a covenant from 
 the parson or corporation to whom the surrender was made, that they 
 would, within such a time, make a new lease, under such and c uch 
 terms : the statute, however, does not extend to surrenders in law, by 
 taking a new lease in writing [d . No lease (by the equity of the sta- 
 tute ) shall be made without impeachment of waste. 6. All bends and 
 covenants, tending to frustrate the provisions of the statutes of 13 and 
 18 E'iz. shall be void e). 
 
 As to leases, therefore, made by parsons, vicars, and others, having 
 benefices or promotions with cure of souls, these things are to be ob- 
 served ; I. That parsons and vicars are expressly excepted out of 32 
 H. 8. c. 28. so that they are not, as ether sole corporations, enabled oy 
 that statute to make any leases to bind their successors without the con- 
 firmation of the patron and ordinary, but remain as they did, perfectly 
 at common-law, for any thing in that statute. 2. That an annual rent 
 must be reserved to the lessor or lessors, otherwise the lease cannot be 
 confirmed. 3. That they are not restrained by 13 Eliz. c. 10. from 
 
 {a) Hob. 269. (i) 2 Bl. Com. 320. (-) Bac. Abr. tit. Leases. (E. 3.) 
 
 (-i) 39 & 4 Q G. 3. c. 4I . s. 10. (-) a Bl. Com. 320.
 
 70 Of Leases by ecclesiastical Persons. [Chap. III. 
 
 making leases for twenty-one years, or three lives ; but then such leases 
 must not only be confirmed by the patron and ordinary, but must also 
 be made in conformity to the rules or qualities before mentioned, 
 otherwise they will not bind the successor. 4. They, as well as others, 
 are restrained by 13 Eliz. c. 10. from making leases for any longer 
 time, notwithstanding any confirmation, or conformity to those rules 
 or qualities [a). 
 
 Another restriction occurs with regard to college leases [b , which is 
 created by stat. 18 Eliz. c. 6. 'and is specially exempted from the ope- 
 ration of the 39 C5 5 40 G. 3. c. 41. by s. 7. of that Act," by which it is 
 directed, that one third of the old rent then paid, should for the future 
 be reserved in wheat or malt, reserving a quarter of wheat for each 
 6s. 8.1. or a quarter of malt for every 5/. or that the lessees should pay 
 the same according to the price that wheat and malt should be sold for 
 in the market next adjoining to the respective colleges; on the market-day 
 before the rent becomes due. This sagacious plan is said to have been 
 the invention of Lord Treasurer Burleigh and Sir Thomas Smith, then prin- 
 cipal Secretary of State ; who observing how greatly the value of money 
 had sunk, and the price of all provisions risen, by the quantity of bul- 
 lion imported from the newly found Indies, devised this method for 
 upholding the revenues of colleges. Their foresight and penetration 
 have, in this respect, been, very apparent. The corn rent has made the 
 old rent approach in some degree, nearer to its present value ,0 ; 
 otherwise, it should seem, the principal advantage of a corn rent, is to 
 secure the lessor from the effect of a sudden scarcity of corn. — The 
 leases of beneficed clergymen were farther restrained, in case of their 
 non-residence, by stat. 13 Eliz. c. 20. 14 El.z. c. 11. 18 Eliz. c. 11. 
 and 43 Eliz. c. 9. But by 43 G. 3. c 84. s. ic. the 13 Eliz. c. 20. is 
 repealed, together with every explanation, cA. thereof made by the 14 
 Eliz. c 11. 18 Eliz. c. 11, and 43 Eliz. c. 9. ami the penalties for non- 
 residence are altered altogether. As far as the 43 G. 3. respects the 
 present subject, it may be observed that by sect. 34. all contracts or 
 agreements made after the passing of the Act, for the letting of houses 
 of residence, or the buildings, gardens, orchards, and appurtenances 
 necessary for the convenient occupation of the same, belonging to any 
 benefice, donation, perpetual curacy, or parochial chapelry, to which 
 houses of residence any spiritual persons shall be, by the order of the 
 archbishop or bishop, required to proceed and reside therein, (a copv of 
 such order being, immediately on the issuing thereof, transmitted to 
 one of the churchwardens, who shall forthwith serve it on the occupier 
 of such house of residence, or left at the same) shall be null and void ; 
 and any person continuing to hold such house or any such building, Is'c. 
 or premises, after the day on which such spiritual person shall by the 
 said order be directed to reside therein, and after service of such copy 
 
 («) Bac. Abr. tit. Le.uesj (F.) (.') ; Bl. Com. 322. (*) Christian's N. 4.
 
 Sect. XI.] Of Leases by ecclesiastical Persons. 71 
 
 as aforesaid, shall forfeit forty shillings for every day he shall, without 
 the archbishop's or bishop's consent in writing, Wilfully continue to 
 hold such house, building, cirV. the said penalty or penalties to be 
 recovered by action of debt, bill, plaint, or information in any court of 
 record at Westminster , or the courts of great sessions in Wales y and the 
 whole to go to the person suing, together with costs : but in case oi any 
 contract before the Act, the person holding shall not be liable to any 
 penalty for three calend?r months from the service of such order as 
 aforesaid : and sequestration for disobedience to reside shall not issue 
 for three calendar months, to be computed from the service of 
 such order of the archbishop or bishop. > either shall any person be 
 liable for non-residence while such tenant shall continue to occupy. 
 
 s - 35- 
 
 At common law, if a parson had made a lease for years of his glebe 
 land, to begin after his death, or granted a rent-charge in that manner, 
 and such lease or grant were confirmed by the patron and ordinary, 
 this would have bound the successor of the parson ; because here were 
 the consent and concurrence of all persons interested, and the lease or 
 charge bound immediately from the perfecting of the deed by the par- 
 son, patron, and ordinary, though it was not to take effect in posses- 
 sion till after the parson's death : but now, no confirmation whatever 
 will make such lease or grant good against the successor, by reason of 
 the statutes made to avoid them (a). 
 
 If a parson obtain a grant to build houses on church or college lands, 
 which is confirmed, ^in case where confirmation is necessary), yet this 
 grant is no alienation against the statutes, but is only a covenant or li- 
 cence, and nothing else ; for the soil remains in the grantor, and by 
 consequence the houses built thereon are in him (b). 
 
 In some cases, the confirmation of the patron is necessary, and in 
 some not ; wherein this diversity is taken in the books, That such sole 
 corporations, who have not the absolute fee and inheritance in them, as 
 prebends, parsons, vicars, and such like, if they make any leases or 
 estates, there in order to bind their successors, the patron must confirm 
 the same: but such sole corporations who have the whole estate and 
 right in them, as bishops, abbots, cifr. or such corporations aggregate, 
 who have the whole fee and inheritance in them, as dean and chapter, 
 masters, fellows, and scholars of anv college, hospital, lie. these mav 
 make leases to bind their successors, without any confirmation of the 
 patron or founder, though the bishop, abbot, dean, master, cV. were 
 presentable ; and the reason of this diversity appears in the nature of 
 the right with which each is invested [c). 
 
 But if a parsonage or vicarage be a donative, then the confirmation 
 of patron alone is sufficient to ail leases, wV. made by the parson or 
 
 {a ) Bsc. Abr. tit. Leases, (E.) {1) Ibid. {c) Bac. Abr. tit. Leases, (G. 2.)
 
 72 Of Leases by ecclesiastical Persons, [Chap, IIL 
 
 vicar, and shall bind the successor without the confirmation of any 
 other [a). 
 
 Yet, if there be a lord-paramount, as well as an immediate patron, 
 confirmation of the immediate patron, without the other's confirmation, 
 is not good ; as if a parson be patron of the vicarage of the same 
 church, and the vicar makes a lease confirmed by the parson and or- 
 dinary, this is not good without the confirmation of the patron of the 
 rectory also, because both have an interest in the possessions of the 
 vicarage (b). 
 
 As a patron may confirm explicitly by his deed or writing, so may 
 he also confirm by consequence of law ; for, if a parson makes a 
 lease for years to the patron, who grants or assigns it over to another, 
 this amounts to a confirmation in law by the patron, because a confir- 
 mation being nothing but an assent under the hand and seal of the 
 party confirming, such assent in this case sufficiently appears by his 
 assigning over the lease to another [c). 
 
 Another difference observable in the manner of confirming such 
 leases as we are treating of, is, as to their duration, or continuance : 
 for, if a parson make a lease for twenty-one years at this clay, and the 
 patron and ordinary confirm his estate therein for seven years, or (after 
 reciting the lease) " not beyond" that term, yet is the estate or lease 
 well confirmed for the twenty-one years ; for when they confirm the 
 estate of the lessee, that is intire, and cannot be divided (d) 
 
 As to the estate which they who make such confirmation ought to 
 have, to make the lease effectually binding upon the successors, this 
 regards chiefly the patron, whose advowson or right of patronage, being 
 a temporal inheritance, and considered as such, is to be governed by 
 the same rules as other temporal inheritances are: his confirmation, 
 therefore, being in nature of a charge upon the advowson, is to be 
 directed by the estate which he hath in the advowson, and can continue 
 no longer than that endures ie). 
 
 If, therefore, the patron had a conditional estate in the advowson, 
 and he confirm a lease of the parson's, and afterwards the condition be 
 broken, this defeats also his confirmation, so that the succeeding in- 
 cumbent shall not be bound by it. So, if a church be full of a parson, 
 and afterwards another is made parson, and he makes a lease for years, 
 which is confirmed by the patron and ordinary, yet the lease is void ; 
 because he who made it was not parson, the church being full 
 before (/). 
 
 As to the time of confirmation, generally speaking, it is not material 
 whether it be before or after the making of the lease, which is to be 
 confirmed, so it be made in the life-time of the parties who make the 
 lease ; for the confirmation is but an assent or agreement by deed, to 
 
 (a) Bac. Abr.tit. Leasei, (G, 2.) (I) Ibid. (c) Ibid. 
 
 (J) Ibid. (-) Ibid. (G. 3.) (/) Ibid,
 
 Sect. XII.] Of Leases by Trustees of Charities. 73 
 
 the making such lease or grant, and not a confirmation of the estate 
 itself la). 
 
 Thus, where a bishop made a lease to the second of May, which 
 was confirmed the third of May, and sealed the fourth of Afay t this 
 was held a good confirmation (b). 
 
 Yet it hath been holden on the contrary, that if a confirmation be 
 made and delivered before the grant or lease be confirmed, that this is 
 not a good confirmation \ and, though after the grant or lease, the deed 
 of confirmation be delivered again, yet that will not make it good ; for 
 that it was a deed by the first delivery, and the second delivery will not 
 make it good as an assent, because the assent ought to be by deed, and 
 the first delivery was void ; but that confirmation may be made before 
 the grant or lease be confirmed, the other cases are express (c). 
 
 If a bishop, parson, or any other sole ecclesiastical corporation, make 
 •a lease for years, which needs confirmation, his confirmation ought to 
 be made in the life and during the incumbency of the lessor, for after 
 his death, resignation, deprivation, or other amotion, the lease is be- 
 come void for want of confirmation ; and then, confirmation made after 
 cannot revive it, though it be made in the vacation before any successor 
 comes in id). 
 
 But if a parson make a lease for years, which is not confirmed by 
 the bishop or patron, then in being, but by the succeeding bishop and 
 succeeding patron, this is a good lease, and shall bind the successor. 
 
 Section XII. Of Leases by Trustees of Charities. 
 
 Leases of charity lands are under the peculiar cognizance of the 
 Court of Chancery, and where a lease is made by trustees at an under- 
 value, by collusion between them and the lessee, the court can make a 
 decree not only against the trustees, but also against the lessee for the 
 surplus value (e). 
 
 The mode of granting leases of charity lands is sometimes prescribed 
 by the founder, as that the term shall not exceed twenty-one years, that 
 no fine shall be taken £sV. and then the terms of the power must be 
 strictly pursued : and sometimes power is given to the trustees to make 
 leases generally, in which case they have a power both in law and 
 equity, either to take fines or reserve rents, as is most beneficial for the 
 charity (f\ Where there is no power, the trustees must be guided by 
 the general principles of the court, which will take care that a reason- 
 able discretion is exercised !g) . 
 
 Where the rules of the foundation directed that no lease should be 
 
 00 Bac. Abr. tit. Leases. (G. J.) 4. (&) ibid. (c) Ibid- (d\ Ibid. 
 
 (c) High, on Mort. 449. (/) Ibid. (g) io. Ves. Jim. 555.
 
 74 Of Lenses by Trustees of Chanties. [Chap. III. 
 
 granted for more than twenty-one years, and that at the old rent, 
 taking a fine cf two years' value; a lease for twenty-one years at the 
 old rent, with a covenant by repeated renewals to make it up sixty years, 
 was decieed upon certain conditions, to be confirmed for twenty-one 
 years from the last renewal, but the covenant: for renewal was declared 
 Void, as rendering the lease no less prejudicial than an actual lease for 
 sixty years [a). 
 
 A college restrained by its constitution from making leases, ether 
 than for twenty-one years, at a rack rent, made an entry in their audit 
 book, recommending it to their successors to renew a particular lease 
 at less than the rack rent, the tenant having made great improvements. 
 The court refused to decree the renewal, censuring the parties who hud 
 signed the order for a breach of the college statutes (/>). 
 
 Where long leases of charity lands have been procured unon terms 
 very inadequate to their fair value, the court lias, in several instances 
 interfered to annul them, and to bring the lessees to a just account of 
 the rents and profits (c). 
 
 An alienation for ninety-nine years or a charity estate, if it be a mere 
 husbandry lease and without consideration, is a lease which the court 
 will noc permit to stand, unless it is shewn to be fair and reasonable, 
 and for the benefit of the charity [d)l A long lease of a charity estate 
 \s prima facie a breach of trust, and a proof of the circumstances that 
 make it a provident administration is thrown on those who take such a 
 lease (e). Therefore, trustees of a charity cannot in general, unless 
 specially empowered, grant a lease for seventy years, except for the pur- 
 pose of building {f)\ for a case may occur in which the property can- 
 not be made beneficial without building, and the trustees may have no 
 fund. 
 
 In 1 7 1 5 the trustees of a charity granted a lease of lands, theretofore 
 let at 31/. per annum) for nine hundred and ninety-nine years, in con- 
 sideration of 500/. to be laid out in improvements, and of 4/. per 
 tmnnm additional rent. The court considered this to be a sort of per- 
 petuity, destructive to the charity estate, and therefore decreed the lease to 
 be given up, but as the tenant had lately laid out 60c/. in improvements, it 
 was ordered that he should have just allowances made him in the 
 account which was directed (g). 
 
 it is laid down in a recent case .7/, that neither a lease of charity 
 land for ninety-nine years, as a mere husbandry lease, upon terms and 
 at a rent adapted to a lease for twenty-one years ; nor a building lease 
 of nine hundred and ninety-nine years upon an expenditure, commen- 
 surate to a term of ninety-nine years, can be supported. 
 
 But a lease of charity of land for eighty years, was supported as to 
 
 („•) % Vera. 410. (/ 1 P. Wms. 65J. (f) 6 Ves. Jun. 452. 10 Ves. Jun, 555. 
 (i)Ibid. (,V::.:. (/) 13 Ves. Jun. 565. 
 
 (g) 6V«.J.:n. 15:. (A) 17 Vcs.Jun.a8j.
 
 Sect. XIII.] Of Leases by married JVomen, S-c. 75 
 
 the interest of a sub-lessee, who had given a fair consideration, nnd had 
 no notice, except that the estate belonged to a charity {a); the court 
 observing that its feelings upon the abuse of a charity estate must not 
 carry it beyond what is just, even against those who are guilty, much 
 less against other persons •, and upon that ground the decree should be 
 mollified with regard to the interests of sub-lessees having given a fair 
 consideration; merely directing them to pay the rent to other persons 
 than those to whom they had contracted to pay it. The interests of 
 those persons may be very fair, as between them and those from whom 
 they take; and the relief in these cases is to be adapted to the conduct 
 of the parties, as the court finds them respectively to have acted fairly 
 or not, towards the trust. 
 
 Section XIII. Of Lenses by married Women; and 
 Husbands seised in right of them. 
 
 By the common law, if a husband seised of lands of inheritance in 
 right of his wife, make a lease thereof by indenture or deed-poll, 
 reserving rent, this, though voidable, will be good, unless the wife by 
 some act after the husband's death shews her dissent thereto ; for if she 
 accept rent which becomes due after his death, the lease is thereby be- 
 come absolute and unavoidable. 
 
 Ii a widow chooses to avoid such lease, notwithstanding her having 
 joined therein, then it is so absolutely defeated ab initio as to her, that 
 she may plead non demisit ; because, as to any interest that passed from 
 her she did not demise, nor in truth had any power to contract, but the 
 whole interest passed from the husband, and the lessee is in merely by 
 virtue of the husband's contract ; and yet because the lessee, by his 
 acceptance of such lease, admitted them both to have power to join 
 therein, he must accordingly during the coverture declare of the lease 
 by them both as an essential part of the description of the lease whereby 
 he makes title (b). 
 
 But the indenture or deed-poll, whereby such lease was made, being 
 no essential part either of the description or lease itself, because the 
 husband, during the coverture, might have made it by parol only ; 
 therefore it is not necessary nor usual for the lessee in his declaration to 
 make any mention thereof (c). 
 
 A lease made by husband and wife of the lands of the wife, and delivered 
 by letter of attorney in both their names, will support a declaration 
 in ejectment on a lease by the husband only; for the delivery by 
 
 0) 17 Ve:, J'jn. :8j. (£) Bac. Abr. tit. Leases (C. i.) (c) Ibid.
 
 76 Of Leases by married Women; and [Chap. III. 
 
 attorney being void as to the wife, it is the lease of the husband 
 only (a). 
 
 But if the husband and wife join in a lease for years by parol of the 
 wife's lands rendering rent, or if the husband solely make such parol 
 lease, rendering rent, this determines absolutely by his death, so that 
 no acceptance of rent, or other act done by the wife, will prevent its 
 avoidance ; for a lease for years being an immediate contract for, or 
 disposition of the land itself, if the same appears in writing duly exe- 
 cuted, so that there can be no variation or deviation therefrom attempted 
 by the lessee after the husband's death ; the law so far gives countenance 
 to such lease for the encouragement" of farmers and husbandmen, that 
 the same shall continue in force till the wife's actual dissent or dis- 
 agreement thereto -, but because there can be no such certainty of the 
 terms of a parol lease, when nothing appears in writing to manifest 
 them, therefore they, like other charges of the husband, fail oft and 
 drop with his estate or interest therein {b}. 
 
 If the husband and wife make a lease for years of the wife's land, 
 without reservation of any rent, yet it hath been adjudged that tins is 
 
 good lease by them both during the coverture, and that the wife, 
 after the husband's death, may affirm the same by acceptance of fealty, 
 or bringing an action of waste : so that the reservation of rent is not 
 essential to the existence or continuance of such lease after the hus- 
 band's death, but only a writing attesting the same, and the wife's 
 allowance and approbation thereof; for as the husband made such lease 
 at first without any reservation of rent, so the wife, if she thinks fit, may 
 continue the lessee in possession after his death upon the same 
 terms 'o. 
 
 A husband seised in right of his wife cannot grant copies in his own 
 name, but the wife ought to join cl\ 
 
 But if a husband seised of a copyhold in right of his wife, make ,1 
 lease not warranted by the custom, it is a forfeiture of the estate during 
 the life of the husband only ; for it is not a continuing detriment to the 
 inheritance, or such an act as tends to the destruction of the manor, in 
 which case it would bind the inheritance cf the wife after the husband's 
 death (e). 
 
 A husband letting copyhold lands of which he is seised in right 
 of his wife, by indenture, will not destroy the custom of demising 
 by copv, because the wife may enter after his death and avoid such 
 
 lease f ) . 
 
 A woman guardian in socage, marries and joins with her husband by 
 indenture, in making a lease for years of the ward's land, yet after her 
 husband's death she may avoid the same in right of the infant whose 
 
 0) Cro. Jac. 617. (p) Bac. Abr. ut ante. (.-) Bac. Abr, tit. Leases, (C. 1.) 
 
 (d) Cro. Jac. 99. (0 Bac. Abr. ut ante, & Cro. Car. 7. (/) Hid. Cro. Eliz. 459-
 
 Sect. XIII.] Husbands seised in right of them. 77 
 
 guardian she still continues to be, and to whom, when he comes of 
 age, she must be accountable for the profits (a). 
 
 A husband, in whom a long term of years was vested in right of his 
 wife, made an under-lease for the ten years, and upon borrowing 
 money of the lessee, covenanted to grant him another lease after the 
 end of the ten years, and to continue during the time he had any right, 
 but died before he made such lease ; it was decreed to be a good dis- 
 position of the term in equity (£). 
 
 Touching leases made by husband and wife, pursuant to the statute 
 32 H. 8. c. 28. [concerning which statute vide ante,'} the husband may 
 at this day, without fine or recovery, make leases of the lands, tene- 
 ments, or hereditaments, whereof he hath any estate of inheritance in 
 fee-simple or fee-tail in right of his wife, made before or after the 
 coverture, so as there be in such leases observed the conditions or limi- 
 tations before required in the leases made by tenant in tail \ and so that 
 the wife join in the same deed, and be made party thereunto, and seal 
 and deliver the same deed herself in person : for if a man and his wife 
 make a letter of attorney to another to deliver the lease upon the land, 
 this lease is not a good lease from the wife warranted by the statute ; and 
 yet then, as in other like cases, of leases not warranted by the statute, 
 it is a good lease against the husband. When the lease is such an one 
 us is warranted by the statute, it binds the husband and wife both, and 
 the heirs of the wife ; but if it be an estate-tail, it doth not bind the 
 donor nor him in remainder [c). 
 
 Husband and wife, the husband purchased land to him and his wife, 
 and their heirs, and afterwards he, without his wife, lets this land for 
 sixty years, if they should so long live, rendering 280/. per ann. rent at 
 the two usual feasts, during the term, then the husband dies, and if 
 this lease should bind the wife by the 32 H. 8. c. 28. was the question; 
 and it was held by three justices that it should : for the wife is appointed 
 to join only when she hath the sole inheritance by the appointment of 
 the rent to be reserved to the heirs of the wife, and not when she hath a 
 joint-estate, as in this case •, and then clearly by the body of the act, the 
 lease by the husband solely is good, and the proviso does not extend 
 to it ; in truth, the lease determined by the death of either of 
 
 them id]. 
 
 Where a feme-covert has for many years been separated from her 
 husband, and, during that time, has received for her separate use the 
 rents of her own property, which accrued to her by devise after the 
 separation, she shall be presumed to receive the rents, and acknowledge 
 the tenancy, by her husband's authority (e). 
 
 A husband possessed of a term, in right of his wife, may dispose of 
 the whole or any part of it. 
 
 (a) Cro. Eliz. 459. (i) x% Mad, 4j. (0 Shep. Touch. a8c 
 
 (<0 Bac. Abr. tit, Leases, (C. I.) («) I Taunt, 367,
 
 78 Of Leases by married Women, Jsc. [Chap. Ill, 
 
 So, he may make a lease to commence after his death, and it will be 
 good, though the wife survive; for, having an interest to dispose of in 
 his life, he might dispose of ail the term, and it should bind the feme; 
 so, when he hath disp. sed by an act executed in his life of the interest 
 of the term, and hath created a term in interest, this is as good as if 
 he had granted all the term \d). 
 
 But, if the wife had only the possibility of a term, the husband can- 
 not dispose of it : as if there be a lease to a husband and wife for their 
 lives, and afterwards to the executor of the survivor, the husband can- 
 not grant tins executory interest b]. Therefore he cannot grant a lease 
 to endure beyond both their lives. 
 
 It is now settled that a man possessed of a term of years in right of 
 his wife as executrix ot her former husband has power to grant and 
 convey the same : for the husband may administer in right of his wife 
 without her consent, though she cannot administer without the consent 
 of her husband ; and if the husband can administer, jure uxcrls, with- 
 out her consent, it is incident to the power of admini»tratio:i to sell or 
 dispose of a term of years [c . 
 
 If the husband possessed of a term for seventy years in right of his 
 wife, make a lease of those lands for twenty years, to begin after his 
 death, this is good and shall bind the wife ; because the term, being but 
 a chattel, he had power to di-.pose of it wholly, and by consequence 
 may dispose of any lesser interest thereout as he thinks lit, and this 
 being a present disposition, which he cannot revoke, binds the interest 
 of the lands immediately, though it takes net effect in possession till 
 after his death : tins differs therefore from a devise of such term, or 
 any part thereof by the husband, by his will ; for that not taking effect, 
 nor binding the interest at all till after his death, comes too late to pre- 
 vent the operation of law, which, at the instant of death, immediately 
 casts it upon the wife surviving, and so defeats and destroys the opera- 
 tion of the devise \d). 
 
 But as to the residue of the term, whereof the husband makes no 
 disposition in his life-time, the wife, if she survives, will be entitled to 
 it ; because as to that, the law is left to take place, as it would have 
 done for the whole, if he had not prevented it by such his disposition 
 of part (e). 
 
 Yet if the husband demise for part of the wife's term, rendering 
 rent, the rent shall go to his executor or administrator, though the 
 wife survive {f\ 
 
 Yet if the husband had granted away the whole term upon condition 
 and died, though the condition were afterwards broken, and his execu- 
 tors entered for breach thereof, the wife would, notwithstanding, be 
 
 (a) Com. Dis. tit. Baron & Feme (E. 2.) i Cro. Eliz. 287. (i) Com. Dig. tit. ut mu- 
 (0 3 Wils. 277. 2 iil.R. 8ci. s. c. 00 Bac. Abr. tit. Baron & Feme (C. 2 •) 
 
 {e) Ibid. (/) i Vein. 7- J8. 2 A&. l$5-
 
 Sect. XIV.] Of Leases by Infants and Guardians. 79 
 
 for ever barred to claim any interest in the said term; because there was 
 a total disposition thereof by the husband in his life-time, and the breach 
 or non-performance of the condition was perfectly contingent and un- 
 certain : besides that, the breach of the condition happened net till 
 after his death, and so the disposition continued perfect and uninter- 
 rupted during his life ; for if the condition had been broken during his 
 life, and he himself had entered for breach thereof, it might be a great 
 question if the wife surviving should not have the term after his death, 
 because by his re-entry for the condition broken he is restored to the 
 whole term in statu quo, and then being possessed of it in right of his 
 wife as he was before, it seems but reasonable that the wife should 
 have it, if she survived the husband, as she would have had if no such 
 disposition had been made, since that disposition is now defeated and 
 tone 'it\ 
 
 Section XIV. Of Leases by Infants and Guardians. 
 
 With respect to the power that an infant possesses to grant a leas?: 
 that shall be binding, the cases in the books are somewhat contradictory, 
 and the point is hitherto unsettled. The better opinion however seems 
 ro be, that leases made by infants are not absolutely void, but voidable 
 on their attaining their majority. 
 
 " All gifts, grants, or deeds, made by infants, by matter in deed, or 
 in writing, which do take effect by delivery of his hand, are voidable 
 by himself, by Ins heirs, and by those who have Ids estate (£}." The 
 words " do take effect," are the essential part of the definition, and ex- 
 clude letters of attorney, or deeds which delegate a mere power and 
 couvev no interest U . 
 
 All the books agree, that if an infant make a lease for years, he can- 
 not plead wn est factum, but must avoid it by pleading the special matter 
 of his infancy; which favours the opinion of those who hold, that the 
 lease is not absolutely void; for if it were absolutely void, there is no 
 good reason why he should not plead non est factum, as a feme-covert 
 certainly may do in such a case, whose lease is absolutely void, so that 
 no acceptance of rent after the husband's death can make it good [d\. 
 
 An infant made a lease for years, and at full age, said to the lessee, 
 '* God give you joy of it;' ; this was holden by Mead a good affirmation 
 of the lease; for this is a usual compliment to express one's assent and 
 approbation of what is done (e). 
 
 What seems decisive upon the question is, that " the lessee can in 
 no case avoid the lease, on account of the infancy of the lessor ," which 
 
 (-0 Bac. Abr. tit. Baron & Feme (C. J.) (1) Perk. s. 12. (<0 3 Burr. 1804. 
 
 Id) Bac. Abr. tit. Est; tes (B.) CO Ibid -
 
 80 Of Leases by Infants and Guardians. [Chap. III. 
 
 shews it not to be void, but voidable only •, and it is better for infants 
 that they should have an election {a). 
 
 It has long been settled that " an infant may make a lease without 
 rent to try Ins title." In truth, very prejudicial leases may be made, 
 though a nominal rent be reserved, and there may be most beneficial 
 considerations for a lease, though no rent be reserved b). 
 
 The court of Chancery will decree building leases for sixty years of 
 infants' estates, when it appears to be for their good (c). 
 
 Where an infant makes a lease for years, reserving rent, and the 
 lessee enters, the infant hath election to allow him to be his tenant, or 
 to be his disseisor, whichever is most to his advantage ; so, where one 
 enters, and claims as guardian, and occupies, the infant may allow him 
 to be either disseisor, or accomptant, whichever shall be for his best 
 advantage (d). 
 
 In case there be no testamentary guardian nor a mother, if the in- 
 fant has any socage land and is of the age of twelve if female, or 
 fourteen if male, he or she is allowed to choose his or her guardian, 
 as is frequently done on circuit, and is the constant practice, and 
 what the court of Chancery frequently calls en infants to do ; 
 though this is still liable to any reasonable objection made to such 
 choice ;>''. 
 
 A guardian in socage may make leases for years in his own name, and 
 the lessee may maintain ejectment thereupon (f)\ for this guardian is a 
 person appointed not by any special designation of the party, but by 
 the wisdom of the law, in respect of the lands descended to the infant, 
 so that where no lands descend, there can be no such guardian (g\ : 
 and his office originally was to instruct the ward in the arts of tillage 
 and husbandry, that when he came of age he might be the better able 
 to perform those services to his lord, whereby he held his own land ; 
 and though the office now be in some measure changed, as the nature 
 of the tenure itself is since the time that the socage tenants bought off 
 their personal labours and services with an annual rent to the lord, yet 
 it is still called socage tenure, and the guardian in socage is still only 
 where lands of that kind (as most of the lands in England now are) 
 descend to the heir within age : and though the heir after fourteen may 
 choose his own guardian, who shall continue till he is twenty-one, ye: 
 as well the guardian before fourteen, as he whom the infant shall 
 think fit to choose after fourteen, are both of the same nature, and 
 have the same office and employment assigned to them by the law, with- 
 out any intervention or direction of the infant himself; for they were 
 appointed, because the infant, in regard of his minority, was supposed 
 incapable of managing himself and his estate, and consequently derive 
 
 (a) 3 Burr. 1806. (/) Ibid. (c) 2 Vera. 224. (/) Cro. Car. 306. 
 
 0) Z Yes. 375. (/) Bac. Abr. tit. Leases, (I. 9.) (gj ^10. Jac. 99.
 
 Sect. XIV.] Of Leases bij Infants and Guardians. 81 
 
 their authority, not from the infant, but from the law ; and that is the 
 reason they transact all affairs in their own name, and not in the name 
 of the infant, as they would be obliged to do, if their authority were 
 derived from him. Indeed, if their authority were derived from him, it 
 would by no means answer the intention of the law in appointing them ; 
 for then all acts done by virtue of such derivative authority could be of 
 no more force than if done by the person himself who gave that au- 
 thority, since none can communicate more power to another than he 
 has himself ; and that would invalidate all their contracts, and make 
 them savour of the same imbecility as if made by the infant 
 himself. 
 
 Therefore, to enable them to take especial care of the infant and his 
 affairs, the law lias invested them, not with a bare authority only, but 
 also with an interest^ till the guardianship ceases : and to prevent their 
 abuse of this authority and interest, the law has made them accountable 
 to the infant, either when he comes to the age of fourteen years, or at 
 any time after, as he thinks fit ; a*nd therefore their authority and inte- 
 rest extend only to such things as may be for the benefit and advantage 
 of the infant, and whereof they may give an account. 
 
 From what has been said, it appears that a guardian in socage hath 
 not only a bare authority, but an interest in the lands descended, and 
 therefore during that time may make leases for years in his own name, 
 as any other who hath an interest in lands may do ; for he is quasi 
 dominus pro tempore. If he makes leases for years to continue beyond 
 the time of his guardianship, such leases seem not to be absolutely void 
 by the infant's coming of age, but only voidable by him, if he thinks fit ; 
 for they are not derived barely out of the interest of the guardian, or to 
 be measured thereby, but take effect also by virtue of his authority, 
 which, for the time, was general and absolute •, and therefore all lawful 
 acts done during the continuance of that authority, are good, and may- 
 subsist after the authority itself, by which, thev were done, is deter- 
 mined, and consequently the infant, when he comes of age, may by ac- 
 ceptance of rent, or other act, if he thinks fit, n^ake such leases good 
 and unavoidable (a). 
 
 A testarne-ntary guardian, or one appointed pursuant to the statute 
 12 Car i. c. 24. s. 8. 9. 10. 11. is the same in office and interest as a 
 guardian in socage. 
 
 But a guardian by nurture cannot make any leases for years, either 
 in his own name, or in the name of the infant, for he hath only the 
 care of the person and education of the infant, and hath nothing to do 
 with the lands merely in virtue of his office; for such guardian may be, 
 though the infant has no lands at all, which a guardian in socage can- 
 not !b). But such guardian, it seems, may make leases at will. Though. 
 
 (a) Bnc. Alv. tit. " Lease :," (I. o.) (£) 5 ;■• i 
 
 G
 
 82 . Of Leases by Mortgagors and Mortgagees. [Chap. III. 
 
 every guardian except a guardian in socage, is but tenant at will, and 
 by consequence cannot make a lease for any certain time or number of 
 years ; yet if a lease be made by such guardian, the lessee is estopped 
 to say, that being only tenant at will, he had no power to make the 
 lease (a). 
 
 A lease renewed by a guardian for an infant's benefit, shall follow 
 the nature of the original lease : and in general a guardian or trustee 
 shall not alter the nature of the infant's property, so as to change the 
 right of succession to it in case of the infant's death, unless by some 
 act manifestly for the advantage of the infant at the time .b). 
 
 A devise to a person as guardian, that he may " receive set and let" 
 tor his ward, gives him an authority only, and not an interest (c). 
 
 Section XV. Of Leases by Executors and Administrators. 
 
 Executors and administrators, as they may dispose absolutely of 
 terms of years vested in them in right of their testators, or intestates ; 
 so may they lease the same for any fewer number of years, and the rent 
 reserved on such leases shall be assets in their hands, and go in a 
 course of administration [d). 
 
 If administration be granted generally to one during the minority of 
 an infant executor, .the grantee has authority to make leases of any 
 term vested in such infant, which shall be good till he comes of age \ 
 and, as it has been also holden by some, till he avoid them by actual 
 entry (e). 
 
 Section XVI. Of Leases by Mortgagors and Mortgagees. 
 
 The mortgagor has no power of making leases to bind the mort- 
 gagee, but he may make leases which will bind his equity of re- 
 demption. 
 
 Where the mortgagor is himself the occupier of the estate, he may- 
 be considered as tenant at will : but he cannot be so considered if there 
 be an under-tenant, that is a tenant in possession under a lease prior tc 
 the mortgage*, for there can be no such thing as an under-tenant to a 
 tenant at will ; the demise itself would amount to a determination of 
 the will (/). 
 
 If, therefore, a mortgagor, who continues in possession by consent 
 of the mortgagee, makes a lease for years, and the lessee enter, claim- 
 ing nothing but his lease, he is not a disseisor, but on payment and 
 acceptance of his rent, a tenant at will ; and if the mortgagor enter 
 
 (a) 8 Mac!. 315. (i)3 P. Wms. IOI.& n. I. ■ (c) Cro. Eliz. 678. 
 
 •0 Bac. Abr. : : '. "Leases," (1. 7-) 00 6 C0.676, Bac Ab." Leases," (I. 7.) (/) Doug. 283.
 
 Sect. XVI.] Of Leases by Mortgagors and Mortgaoees. S3 
 
 after the expiration of the lease, he shall be tenant at will again to the 
 mortgagee; and bis acts, being by permission of the mortgagee, shall 
 not turn to his prejudice (a). 
 
 But if a mortgage be made with a proviso and agreement between 
 the parties, that the mortgagee, Ids heirs and assigns, " ihall not 
 intermeddle with the actual possession of the premises, or perception 
 of the rents," until default of payment, the mortgagor is a tenant 
 at sufferance to the mortgagee, and not a tenant at will, as he would 
 have been on a covenant that he should take the profits till default of 
 payment b). 
 
 Indeed the legal interest of a mortgagor in possession, has been held 
 to be inferior to that of a mere strict tenant at will c). However, as to 
 what in strictness is the interest of a mortgagor, after the usual time given 
 for the payment is expired, the estate becomes absolute in the mort- 
 gagee at law. 
 
 As all leases, or other interests in the land, created by the mortga- 
 gor, subsequently to the mortgage, and before the foreclosure, are void 
 against the mortgagee-, he may treat the tenants under such leases, or 
 persons claiming such interests, as trespassers, disseisors, and wrong- 
 doers (d\ or not, at his election j unless where the acts of the mortga- 
 gor have been done with the permission of the mortgagee. 
 
 If the mortgagee permits the lessee to enjoy his lease, the mortgagor 
 may thenceforth be considered as a receiver of the rent,, or, in some 
 sort, a trustee for the mortgagee, who may at any time countermand 
 the implied authority, by giving notice to the tenant not to pav the 
 rent to the mortgagor any longer e). But if the mortgagee elects the 
 other alternative, the lessee may be turned out by ejectment [f). 
 
 Though the tenant be in possession under a lease prior to the 
 mortgage, yet the mortgagee, after giving notice, is entitled to the rent 
 in arrear at the time of the notice, as well as to what shall accrue 
 afterwards, and he may distrain for it after such notice 'g . 
 
 But where »there is a tenant from year to year, and the landlord 
 mortgages pending the year, the tenant is entitled to six months' notice, 
 before he can be evicted by the mortgagee [/:). 
 
 With respect to leases by the mortgagee, he cannot, before foreclosure 
 of the equity of redemption, make a lease for years of the premises in 
 mortgage to bind the mortgagor j unless to avoid an apparent loss and 
 merely in necessity ,2 . 
 
 If mortgagor of a term join with the mortgagee in a lease for a 
 shorter term, in which the covenants for the rents and repairs are only 
 with the mortgagor and his assigns, and the interests of the mortgagor 
 
 (a) Cro. Jac. 660. (Z) Ibid. 659. (<-) Doug. 22. 
 
 (d) Pow. on Mort. 22 "• Dov.gl. 21. (e) i Atk. 606. (/) Doug. 21. 
 
 'g) Doug. 279- (fi) I T. R. 378. (i) 9 Mod. 1. 
 
 G 2
 
 84 Of Leases by Mortgagors and Mortgagees. [Chap. III. 
 
 and mortgagee become extinguished during the lease by the rever- 
 sioner acquiring their estates, still the mortgagor may maintain an 
 action of covenant against the lessee, the covenants being in gross («). 
 
 But if a mortgagor and mortgagee make a lease in which the cove* 
 nants for the rent and repairs are only with the mortgagor and his 
 assigns, the assignees of the mortgagee cannot maintain an action for 
 the breach of these covenants on stat. 32 H. 8. c. 34. because they are 
 collateral to his grantor"s interest in the land, and therefore do not ruu 
 with it (b). 
 
 A court o£ equity refused on bill to compel an assignee of a term in 
 mortgage to discover his assignment ; the object of the lessor in re- 
 quiring it, being to make him liable to the covenants of the mortgagor, 
 although he had not taken actual possession of the premises. The 
 Court dismissed the bill, and left the party to his remedy at law (c). 
 
 But in a subsequent case, where one hundred pounds were lent by 
 way of mortgage upon an assignment of a building lease, and the 
 mortgagee never entered nor took possession, but lost the money lent, 
 the defendant in equity having recovered against the mortgagee, as as- 
 signee, the rent reserved on the lease, the bill was to be relieved 
 against the recovery at law j and the Court dismissed it, saying, the 
 mortgagee was ill advised to take an assignment of the whole term (d). 
 
 Upon re-consideration of this question in the case of Eaton against 
 Jacques, it was determined that a mortgagee, assignee of a term for 
 years, should not be liable to the covenants in the lease, unless he had 
 taken actual possession. But this doctrine no longer obtains (e). 
 
 Indeed that the assignee is liable only in respect of actual posses- 
 sion is certainly contradicted by a case which arose on a bill by the 
 executor of a lessor against the depositary of a lease to secure to him 
 a debt, for the specific performance of a covenant to rebuild houses 
 upon the premises in the eleventh year of the term, which was a term 
 o? seventy-one years ; to be held for the first ten years at a pecuniary 
 rent, for the eleventh year at a pepper-corn rent, and for the rest of 
 the term at a pecuniary rent. The defendant, by his answer, stated the 
 fact of the disposal by way of mortgage, and insisted that having no title 
 but as mortgagee, he was not bound to rebuild. Lord Thurloiv (Chan.) 
 thought that there could not be a decree to rebuild, as he could no more 
 undertake the conduct of a rebuilding than of a repair. But his lordship 
 said, it was no matter whether the defendant took it as a pledge, or as a 
 purchase, for he could not take the estate as a security, and refuse the 
 burthen that was upon it ; but having once taken it, he could not aban- 
 don it : that being then only an assignee in equity, no action could be 
 brought, and that the only relief that he could give the plaintiff, as he 
 could not give him damages, was to put him in a situation to recover 
 
 (Vi 6 T. R. 678. (i) Ibid. 39.]. (c) Pow. on Mort. 233, 
 
 W Ibid. 234. (0 Doug. 45 j.
 
 Sect. XVIII.] Of Leases by Copyholders, kc. 85 
 
 them ; his lordship therefore decreed, that the defendants should take 
 an assignment of the lease and execute a counterpart, and that they 
 should pay the costs (a). 
 
 Indeed, the principle, that a mortgagee is liable only in respect of 
 his possession seems no longer to be recognized in either a court of 
 law or equity (£).— Thus, where the plaintiff was the original lessee of 
 a term, which he assigned to Kay, who assigned it by way of mort- 
 gage to the defendant as a security for the re-payment of a sum of 
 money, the action was brought to recover the amount of ground-rent 
 paid by the plaintiff duiing the interest of the defendant as mortgagee. 
 Lord Kenyan said, that the defendant was liable as assignee : his lia- 
 bility was not limited by his possession, but as long as he had the legal 
 estate, so long he continued liable to performthe covenants in the lease. 
 If he wished to avoid that liability, he should have taken an under- 
 lease (f). 
 
 A mortgagee in possession is not obliged to lay out money any 
 further than to keep the estate in necessary repair. — If the estate lies at 
 such a distance that he must employ a bailiff to collect the rents, what 
 he paid to the bailiff shall be allowed ; but not where he does or may 
 receive the rents himself (d). 
 
 If A. mortgage land to B. upon condition to re-enter on payment of 
 to/, j and afterwards A. before the day of payment is come, being in 
 possession, make a lease for years by indenture to C. and then af- 
 terwards performs the condition, this shall make the lease to C. good 
 against himself by estoppel [c). 
 
 Section XVII. Of Leases by Tenants by Elegit, Sta~ 
 tut e- Merchant, and Statute-Staple, §c. 
 
 As tenants under these executions have only uncertain interests, de- 
 terminable at any time on payment of the sum secured, they cannot 
 enter into any contract for a lease, which will not be liable to be put 
 an end to in the same event ; but till such contingency occurs their 
 demises are good. It however very rarely happens that leases are granted 
 by persons thus entitled, and we shall not therefore enter more at large 
 into the subject. 
 
 Section XVIII. Of Leases by Copyholders ; wherein of 
 
 Licence. 
 
 A copyholder cannot, unless by special custom or by licence from 
 the lord, convey any common law interest in his lands to another, as 
 
 0) i Pow. en Mort. 241. {b) Stone v. Evan:. Site, at Westm. T. T. 39 G. 3. T's. M. S. S. 
 CO Don*. 43 8. (d) 3 Atk. 518. (V) Eac. Abr. tit. " Leases" (O.)
 
 86 v Of Leases by Copyholders; [Chap. III. 
 
 such an act is incompatible with his tenancy ; so that if he make a lease 
 for years without licence, though by parol only a)\ or even if it be to 
 commence infuturo b , it will be a forfeiture of his tenement. But an 
 interest must actually pass ; for a promise or covenant to demise will 
 not create a forfeiture, for it is no lease (c). 
 
 But a copyholder may make a lease for one year without a licence, 
 and thereupon may maintain an ejectment (d). 
 
 By special custom a copyholder may make leases for three, nine, 
 or twenty-one years, or for life anil forty years after, without licence 
 from the lord ; upon which also he may maintain an ejectment e). 
 
 But a-custom that the lease shall be void if the lessor dies, is good ; 
 though not if the lessor alien {/). 
 
 Although a lease for a year, without licence, be good, yet a lease for 
 one year et sic de anno in annum during ten years, being a good lease for 
 ten years, is a forfeiture : but otherwise of a lease for one year, with a 
 covenant for the holding it for a longer time at the will of the lessor. 
 So a lease for a year et sic de anno in annum for the life of the lessee, 
 being a lease for two years at least, is not good. So, if de anno in 
 annum, excepting one day in every year, for it is a certain lease for 
 two years, excepting two days, which is a lease in effect for more than 
 one year; and although there be the intermission of a day, yet that is 
 not material (g). 
 
 So, if a copyholder make three leases together, each to commence 
 within two days after the expiration of the other it is a mere evasion of 
 the custom and therefore not good h). 
 
 So if a copyholder, to secure a person who has become bound for 
 him, covenant that such person shall hold and enjoy the copyhold es- 
 tate for seven years, and so from seven years to seven years, for the 
 term of forty-nine years, if the copyholder so long live, it is a forfeiture 
 of the estate •, though there is a clause that the deed should be void on 
 the bond being paid ; for this deed, though intended only as a colla- 
 teral security, amounts to a present lease (?'). 
 
 A copyholder, having licence to lease, ought to pursue his licence 
 strictly, otherwise his lease is void k). 
 
 As, if he has a licence to lease for twenty-one years from Michaelmas 
 last, and he leases for twenty-one years from December next. So if 
 he has a licence to lease for two years and he leases for three years. So 
 if a copyholder in fee has a licence to lease for years, if he so long live, 
 and he leases for years absolutely (/}. 
 
 So, a copyholder having licence to make a lease for twenty-one years, 
 cannot make two leases foi that term; for lie has satisfied his licence 
 by one lease [m). 
 
 (a) Moore, 393. Cro. Eliz. 498. (b) Ibid. (^3 Keb. 638. I Bulst. 190. 
 
 (./) Cro. Jac. 4C3. Cro, Car. 233. Crc. Eliz. 42;, 5^, 718. 
 
 (,) Corn. l);r. tit. " Copyhold," (K. 3.) (/) Ibid. (V) Cro. Jac. 301* 
 
 (A) Cro. Car. 233. (0 l Mo:!. 79. (i) Com. Dig. ut ant.:
 
 Sect. XVIII.] wherein of Licence. §7 
 
 If a copyholder makes a lease by licence, the lessee may assign with 
 licence, or make an under-lease, for the lord by his licence has parted 
 with his interest [a). 
 
 So if the lessor after a lease by licence dies without heir, the lessee 
 shall have it for his term against the lord ; for the licence is a confir- 
 mation of the lord (b). 
 
 If the lord license his copyholder to make a lease of lands in the 
 tenure of A. though they are in the tenure of B. yet the licence is 
 good {c). 
 
 A copyholder, having a licence to lease, may lease for fewer years 
 than his licence allows ; as a lease for three years, under a licence to let 
 for twenty-one, which is good (d). 
 
 If the lord license his copyholder for life to make a lease for three 
 years, if he so long live, a lease for three years absolutely is good : for 
 a lease by a copyholder for life determines by his death, and therefore 
 the condition annexed, being implied by law, is void (e). 
 
 If the lord license upon condition, the condition is void ; for he 
 gives nothing, but only dispenses with the forfeiture (/). 
 
 A licence may however be upon a condition precedent ; for till the 
 condition be performed it is no licence (g). 
 
 If a copyholder make a lease for years of land whereof a feme by 
 custom is to have her widow's estate, she shall not avoid the lease, 
 unless there be a special custom to avoid it ; for he comes under the 
 custom, and by the lord's licence, as well as the feme (/>)• 
 
 So if a copyholder, after a lease by licence, forfeits his copyhold, the 
 lord shall not avoid the lease j or if he die, as before observed, 
 without any heir («'). 
 
 If a copyholder by licence makes a lease for years, rendering rent, he 
 cannot afterwards release the rent without a surrender of the rever- 
 sion (£). 
 
 A lease for years by parol, made by the remainder man of a copy- 
 hold in fee, commences immediately, if the tenant for life join with him 
 and surrender the estate to his use (/). 
 
 When the baron was seised of a manor in right of his feme, and let 
 a copyhold parcel thereof for years by indenture and died, it was held 
 that it should not destroy the custom to demise it by copy, but after the 
 death of her baron, the feme might so demise it as before. The same 
 law is, if tenant for life of a manor lets a copyhold parcel of the 
 manor for years, and dies, it shall not destroy the custom as to him 
 in reversion (m). 
 
 A lease for years by a copyholder, with the licence of the lord 
 
 (a) Com. Dig. ut ante. (i) Ibid. (V) Cro. Eliz. 160. ■ 
 
 00 Ibid. 555 . Cro. Jac. 437- («) Cro. Eliz. [462.] (/) Ibid. 
 
 (g) Com. Dig. ut ant:: (b) Cro. Jac. 36. (/) Com. Dig. ut ante. 
 
 \k) Ibid. (/) Cro. Eliz. 160. (»;) Ibid. 450. 
 
 6
 
 8S Of Lease?, by Copyholders, %c. [Chap. III. 
 
 where the widow by custom would be entitled to her frecbench, if the 
 copyholder had died seised, defeats the widow- of her freebench (a). 
 
 A lease without licence, and contrary to the custom, in order to 
 amount to a forfeiture must be a perfect lease, and must have a certain 
 beginning and a certain end, for otherwise the lease is void, and carries 
 but an estate at will at most, which is no forfeiture <b.. 
 
 Therefore, where a copyholder had demised his copyhold for a 
 year, and agreed to grant a further term of twenty-one years provided 
 he could obtain of Ins lord a licence for that purpose, this was held to 
 be a condition precedent, and that therefore no forfeiture was*incurred. 
 
 So where a copyholder agreed to demise, and let certain premises, 
 for a term of twenty-one years, and covenanted to procure a licence 
 to let the same, and that the lessee should peaceably enjoy for the said 
 term of twenty-one years ; this was held to be an executory agreement, 
 and not a lease ; for if it were held to be a lease, a forfeiture would be 
 incurred ; whereas that would be contrary to the intent of the parties, 
 who have cautiously guarded against it by the insertion of a covenant 
 that a licence to lease should be procured from the lord [c). 
 
 A demise by a copyholder for cue year, and at the end of that term 
 from year to year for the term of thirteen years more, in all fourteen 
 years, if the lord will give licence, and so as there shall be no forfeiture 
 with the usual covenants in a farm lease ; the licence is a condition 
 precedent, and not being granted, there is no lease at law farther than 
 frt>m year to year, and there is no equity upon the circumstance, that 
 the lord purchased his tenants interest with notice of demise, and an 
 express exception of all subsisting leases or agreements for leases d . 
 
 So an agreement by a copyholder to grant a lease for twenty-one 
 years, if the licence of the lord could be obtained, and that he would 
 use his best endeavours to obtain such licence, and that in the mean 
 time it should be lawful for the lessee peaceably to enjoy and occupy 
 the premises ; does not amount to a lease for a longer time than a year, 
 and is therefore not a forfeiture 'e). 
 
 An infant copyholder without licence of the lord, made a lease for 
 years by parol, rendering rent, and at full age was admitted, and ac- 
 cepted the rent, and then ousted the lessee •, and in this case it was ad- 
 judged, that the lease was a good lease till avoided, and that a lease for 
 years by a copyholder without licence is not a disseisin ; and admit- 
 ting, that it should be a forfeiture in this case, yet if the lord enters 
 for it, the infant may re-enter upon him, and so is no mischief; and 
 therefore he, having accepted the rent at full age, hath made it good 
 and unavoidable, and being at all events a good lease as to all strangers, 
 for that reason principally it was adjudged that such acceptance had 
 made it good ' f). 
 
 (a) Cowp. 481. (i) Bac. Abr. tit. " Leases," (I. 6.) (c) 2 T. R. 739, 
 
 {d) 11 Yes. 17c. (e) 2 Taunt. 54. (/} Bac. Abr. at ante.
 
 Sect. XIX.j Of Leases by Joint-Tenants, fy. 8 9 
 
 A lease by a copyholder for a year, with a covenant to renew yearly 
 we have before observed is not a forfeiture. In such covenant it would 
 perhaps be scill better if it were worded " to permit and suffer" the 
 lessee to have, hold, and enjoy the lands in such manner : for a cove- 
 nant in that form, even of freehold lands, will not amount to an imme- 
 diate lease, because the words " permit and suffer" prove that the estate 
 is still to continue in him from whom the permission is to come; for 
 if any estate thereby passed to the covenantee, he might hold and enjoy 
 it without any permission from the covenantor, and therefore in such 
 case the covenantee hath only the bare covenant for his security of en- 
 joyment, without any actual estate made over to him [a). 
 
 A copyholder agreed to grant a lease for years, if a licence could 
 be obtained, and also to procure the lessee a licence to dig fuller's earth, 
 and that in the mean time the lessee might dig, filling up the holes. 
 The lessee having dug, without filling them up, it was insisted that the 
 omission was an act of waste; but it was held that the digging consti- 
 tuted the waste, and that as the under tenant dug by the lessor's own 
 licence, he could not insist on the forfeiture (b). 
 
 The admittance of a copyholder, after a forfeiture is incurred, is 
 clearly a waiver, and any act equally solemn will operate in the same 
 manner. Such acts as operate as a waiver do not operate as a new grant, 
 but admit the tenant to be in of his old title (c). 
 
 Every one having a lawful interest in a manor, may make voluntary 
 grants of copyholds escheated, or come to his hands, as well as admit- 
 tances, rendering the ancient rents and services, which bind him who 
 has the inheritance [d\. 
 
 A grant therefore by any steward having colour of title, and granting 
 not contrary to the command of the lord, is good. So of a clerk of a 
 steward, if he holds a court and makes grants ; for the tenants cannot 
 examine his authority, nor need he give them an account of it. So, of 
 a deputy [e). 
 
 But a tenant at will of a manor cannot grant a copyholder licence to 
 alien for years ; and if tenant for life of a manor grants a licence to 
 alien for years, it determines at his death if). 
 
 Section XIX. Of Leases by Joint-Tenants, Coparceners, 
 and Tenants in common. 
 
 Joint-tenants, coparcener , and tenants in common, may either make 
 leases of their undivided shares, or else may ail join in a lease of the 
 whole to a stranger. One joint-tenant, or tenant in common, may also 
 make a lease of his part to his companion ; for this only gives him a 
 
 (■OCro.Jac.3TC. Bac. Abr. ut ante. (i) 2 Taunt. 52. (*) 3 T. R. 171. 
 
 <J) Com. Dig. tit, " Copyhold," (C. 3.) (e) Ibid. (C. 5.) (/) Ibid. (C. 3.)
 
 f)0 Of Leases by Joint-Tenants, Coparceners, [Chap. III. 
 
 right of taking the whole profits, when before he had but a right to the 
 moiety or share thereof; and he may contract with his companion for 
 that purpose as well as with a stranger (a). 
 
 If there be two joint tenants, and they make a lease, by parol or 
 deed-poll, reserving rent to one only, it shall enure to both ; yet if the 
 lease had been by deed indented, the reservation should have been 
 good to him only to whom it was made, and the other should have 
 taken nothing. — The reason of the difference is this ; where the lease 
 is by deed poll or parol, the rent will follow the reversion, which is 
 jointly in both lessors, and the rather, because the rent being something 
 in retribution for the land given, the joint tenant to whom it is reserved 
 ought to be seised of it in the same manner as he was of the land de- 
 mised, which was equally for the benefit of his companion and himself-, 
 but where the lease is by deed indented, they are estopped to claim the 
 rent in any other manner than is reserved by the deed, because the in- 
 denture is the deed of each party, and no man shall be allowed to re- 
 cede from or vary his own solemn act (b). 
 
 If one joint tenant does a thing which gives to another an estate, or 
 right in the land, it binds the survivor; as if a joint-tenant in fee or 
 for life makes a lease for forty years [c). 
 
 Therefore, if two joint-tenants are in fee, and one lets his moiety 
 for years, to begin after his death, this is good, and shall bind the 
 other if he survive, because this is a present disposition, and binds the 
 land from the time of the lease made, so that he cannot after- 
 wards avoid it. 
 
 So if one joint-tenant grant the vesture or herbage of the land for 
 years, and dies, this shall bind the survivor; or if two joint-tenants are 
 of a water, and one grants a separate piscary for years and dies, this 
 shall bind the survivor ; because in these cases the grant of the one joint- 
 tenant gives an immediate interest in the thing itself whereof they are 
 joint-tenants (d). 
 
 If there are two joint-tenants for life, and one of them makes a 
 lease for years of his moiety, either to begin presently or after his death, 
 and dies, this lease is good and binding, against the survivor : the rea- 
 son whereof is that notwithstanding the lease for years, the joint- 
 tenancy in the freehold still continues, and in that they have a mutual 
 interest in each other's life, so that the estate in the whole or any part 
 is not to determine or revert to the lessor till, both are dead, for the 
 life of one as well as the other was at first made the measure of the 
 estate granted out by the lessor, and therefore so long as either of 
 them lives, if the joint-tenancy continues, he is not to come into pos- 
 session (e). Now these joint-tenants having a reciprocal interest in 
 
 (<*) 1 Inst. 1 86 a. 
 (//) Bac. Abr. tit. " Joint-tenants and Tenants m common," (H. i.) Cro. Jac. 91. 
 f Com. Die. tit. «« Estates," (K. 7.) (d) Bac. Abr. ut ante. (e) Bac. Abr. ut ante. Cro. Jac. 91.
 
 Sect. XIX. j and Tenants in common. r)[ 
 
 each other's life, when one of them makes a lease for years of his 
 moiety, this does not depend on its continuance for his life only, but on 
 his life, and the life of the other joint-tenant, whichsoever of them 
 shall live longest, according to the nature and continuance of the 
 estate whereout it was derived •, and then so long as that continues, so 
 long the lease holds good, and by consequence such lessee shall hold out 
 the surviving joint-tenant and the reversioner, till the estate, whereout 
 this lease was derived, be fully determined. 
 
 But if a rent were reserved on such lease, this is determined and 
 gone by the death of the lessor : for the survivor cannot have it, because 
 he comes in by title paramount to the lease, and the heirs of the lessor 
 have no title to it, because they have no reversion or interest in the 
 land (a) ; but the executors or administrators may maintain an action 
 of debt or covenant •, this remedy being now given to the representa- 
 tives of such a lessor ; for by statute 1 1 G. 2. c. 19. s. 15. the executors 
 or administrators of tenant for life shall, on his death, recover of the 
 lessee a rateable proportion of the rent from the last day of payment to 
 the death of such lessor. 
 
 A. and B. being joint-tenants for life, a lease made by A. of the 
 moiety to have and to hold after the death of B. for sixty years if A, so 
 Ion"- live, and of the other moiety to have and to hold after the death 
 of A. for sixty years if B. so long live, and A. dies, B. surviving, is 
 bad for both moieties : for by the first words it was a good lease from 
 A. cf his part, upon the contingency surviving B. but that never hap- 
 pened, and as to B's part, A. had no power to lease or contract for it 
 during the life of B. though he had happened after to survive him, for 
 it was but a bare possibility} which could not be leased or contracted 
 for, and therefore the lease was void in the whole b). 
 
 So, if one joint-tenant make a lease for years, " if he and his com- 
 panion live so long," and afterwards surrender his moiety, and take 
 back another estate, the lease determines by the death of either of them : 
 for it hath no continuance longer than the jointure continues, which 
 is severed by the surrender, a new estate being taken (c\ 
 
 If joint-tenants join in a lease, this shall be but one lease, for 
 they have but one freehold ; but if tenants in common join in a lease, 
 this shall be the lease of each for their respective parts, and the cross 
 confirmation cf each for the part of the other, and no estoppel on 
 either part, because an actual interest passes from each respectively, 
 and that excludes the necessity of an estoppel, which is never admitted, 
 if by any construction it can be avoided ^d). 
 
 (a) Bac. Abr. ut ante. (b) Cro.Jac. 92. 377- 00 Cro - J ac - 377- 
 
 v) Com. Di^.tlt." Estates," (X.8.) Bac Abr. tit. " J"int-Teiunts, and Tenants in Common," 
 (71, 4.)
 
 02 Of Leases pursuant to Authority ; [Chap. III. 
 
 Section XX. Of Leases pursuant to Authority ; wherein 
 of Leases by Attornies, Agents, §c. 
 
 If one hath power, by virtue of a letter of attorney, to make leases 
 for years generally by indenture, the attorney ought to make them in 
 the name and style of his principal, and not in his own name - , for the 
 letter of attorney gives him no interest or estate in the lands, but only 
 an authority to supply the absence of his principal by standing in his 
 stead, which he can no otherwise do than by using his name, and 
 making them just in the same manner and style as his principal would 
 do if he were present. If he should make them in his own name, 
 though he added also " by virtue of the letter of attorney to him made 
 for that purpose," yet such leases seem to be void, because the inden- 
 ture being made in his name, must pass the interest and lease from 
 him, or it can pass it from nobody : it cannot pass it from the principal 
 immediately, because he is no party, and it cannot pass it from the at- 
 torney at all, because he has nothing in the lands ; and then his adding, 
 " by virtue of the letter of attorney," will not help it, because that 
 letter of attorney made over no estate or interest in the land to him, 
 and consequently he cannot, by virtue thereof, convey over any to 
 another [a\ 
 
 Neither can such interest pass from the principal immediately, or 
 through the attorney [b] ; for then the same indenture must have this 
 strange effect at one and the same instant, first to draw out the interest 
 from the principal to the attorney, and from the attorney to the lessee, 
 which it certainly cannot do, and therefore all such leases made in that 
 manner, seem to be absolutely void, and not good, even by estoppel 
 against the attorney, because they pretend to be made not in his own 
 name absolutely, but in the name of another, by virtue of an authority 
 which is not pursued [c). 
 
 This case therefore of making leases by a letter of attorney, seems 
 to differ from that of a surrender of a copyhold, or of liverv of seisin of 
 a freehold by letter of attorney ; for in those cases when thev say, « we 
 A. and B. as attornies of C" or, "by virtue of a letter of attorney 
 from C. of such a date, &c." " do surrender, <s'c." or " deliver to you 
 seisin of such lands," these are good in this manner, because they are 
 only ministerial ceremonies, or transitory acts in pais, the one to be done 
 by holding the court rod, and the other by delivering a turf or twig ; 
 and when they do them as attornies, or by virtue of a letter of attor- 
 ney from their principals, the law pronounces thereupon as if they were 
 actually dene by the principal himself, and carries the possession ac- 
 cordingly [d . 
 
 'i.:-:: AL:.<< tit. Lease*" (1. 10.) (b) Ibid. (c) aLd.Ray. 14x8. 
 
 (J) Bac. oh Lea. 142.
 
 Sect. XX.] wherein of Leases by Attornies, tyc. <)S 
 
 But in a lease for years it is quite otherwise, for the indenture or deed 
 alone convey the interest, and are the very essence of the lease, both as to 
 the passing it out of the lessor at first, and its subsistence in the lessee af- 
 terwards. The very indenture or deed itself is the conveyance, without 
 any subsequent construction or operation of law thereupon ; and there- 
 fore it must be made in the name and style of him who has such interest 
 to convey, and not in the name and style of the attorney, who has no- 
 thing therein ; but in the conclusion of such lease it is proper to say, 
 " in witness whereof A. B. of such a place, &c. in pursuance of a letter 
 of attorney hereunto annexed, bearing date such a day: : ' or if the 
 letter of attorney be general, and concern more lauds than those com- 
 prised in the present lease, then to say, " in pursuance of a letter of 
 attorney, bearing date such a day, &c. a true copy whereof is hereunto 
 annexed, hath put the hand and seal of the principal," and so to write 
 the principal's name, and deliver it as the act and deed of the principal ; in 
 which last ceremony of delivering it in the name of the principal of such 
 attorney, this exactly agrees with the ceremony of surrendering by the 
 rod, or making livery by a turf or twig, by the attorney in the name 
 and as attorney of his principal ; which proves that there is a great diver- 
 sity between using the name of the attorney in the making of leases, and 
 using his name in making a surrender of copyhold or livery of seisin of 
 a freehold estate. 
 
 A special agent under a limited authority cannot bind his principal 
 by an act beyond the scope of such limited authority (a). 
 
 The Court of Chancery will interfere, where an aeent procures his 
 principal to grant a lease on disadvantageous terms ; it appearing that 
 the agent took an interest in the lease ( b). 
 
 If the defendant insist that the lease declared on is not the plaintiffs, 
 the plaintiff may shew that it v/as made by A. who had authority from 
 him to execute it in his name, and the authority need not be pro- 
 duced. But the lease must be made and executed in the name of the 
 principal (c\ 
 
 But in a recent case it was held, that where a party executes a deed 
 under a power of attorney, the power ought to be produced (d). 
 
 Agreement for a lease, made with an agent who acts under a power 
 of attorney, and a lease executed by such agent in pursuance of the 
 agreement, shall bind the principal [e). 
 
 "Where a man doc^ such an act as cannot be good by any other means 
 but by virtue of his authority, it shall be intended to be an ex-ccution of 
 his authority, but where a man has an interest and an authority, and 
 does an act without reciting his authority, it shall be intended to be 
 done by virtue of, his interest ', f ;.. 
 
 A bailiff of a manor cannot, bv virtue of his office, make leases for 
 
 (■O3T.R.575. (/0i6Ves.jsn. 94. . Bull. N.P. 177. 00 lEs?. R.<p. 
 
 (f 1 Br, Pari. Cu . ,.;: ' r i Ld. Rav. 66a.
 
 94 Of Leases pursuant to Authority, 8$c. [Chap. III. 
 
 years ; for his business is only to collect rents, gather the fines, look 
 after the forfeitures, and such like : but he hath no estate or interest in 
 the manor itself, and therefore cannot contract for any certain interest 
 thereout. But the lord of the manor may give him a special power to 
 make leases for years, as he may do to any stranger, and then such 
 leases, if they are pursuant to the power, and made in the name of the 
 lord, will be as good as leases by the lord himself; for the bailiff, 
 though he hath such power, cannot make them in his own name (a). 
 
 But a general bailiff of a manor may make leases at will, without any 
 special authority, because, being to collect and answer the rents of the 
 manor to his lord, if he could not let leases at will, the lord might sus- 
 tain great prejudice by absence, sickness, or other incapacity to make 
 leases when any of the former leases were expired ; and such leases at 
 will are for the benefit of the lord, and- can be no ways prejudicial to 
 him, because he may determine his will when he thinks fit (b). 
 
 Such, however, must be taken to be strict tenancies at will ; other- 
 wise, as general tenancies at will are construed to be tenancies from 
 year to year, and half a year's notice to quit is required, before a te- 
 nant can be ousted, such tenancies might prove very prejudicial to the 
 lord's interest. 
 
 But if the bailiff of a manor hath a special power to make leases for 
 years, as he ought to make them in the name of his master, so they 
 ought to be made in writing, that the authority may appear to be pur- 
 sued ; a parol lease such bailiff has no power to make (V), 
 
 (a) Bac, Abr. tit. " Leases," (I. 3.) (i) Ibid, (,) Bic. Abr. ut a-.u,
 
 L 95 j 
 
 CHAPTER IV. 
 
 To whom Leases may be made. 
 
 7* VERY person is capable of being a lessee, unless rendered incon. 
 ^ petent by some legal disability; such as infancy, coverture, in= 
 
 f«v. 
 
 sanity, 
 
 Spiritual persons. — By 43 G. 3. c. 84. (which recites the 21 H..B. 
 c. 13.) it is made lawful, from and after the passing of the act {July 7, 
 1803) for any spiritual person to take to farm to himself, or to any per- 
 son or persons to his use, by lease, grant, words or otherwise, for term 
 of life, years, or at will, any messuage, mansion, or dwelling-house, 
 with or without orchards, gardens, or other appurtenances, although 
 not in any city, borough, or town ; and any spiritual person having or 
 holding any [benefice, 46 G. 3. c. 109. s. 1.] donative, perpetual 
 curacy, or parochial chapelry, not having sufficient or convenient glebe 
 or demesne lands annexed to, or in right of, or by reason of his benefice, 
 or cure, or chapelry, or any stipendiary curate, or unbeneficed spiritual 
 person, with the consent in writing of the bishop of the diocese, may 
 take to farm to himself, or to any person, to his use for a limited term 
 of years, any farm or farms, lands, tenements, or hereditaments, that 
 may, under all the circumstances, appear* to such bishop proper to be 
 taken or occupied by such spiritual person, for the convenience of his 
 household and hospitality only, without being liable to any penalties, 
 bfc. under the recited Act, or any other Acts by reason thereof: pro- 
 vided that nothing herein shall authorize any non-residence of any such 
 spiritual person as aforesaid, s. 4. 
 
 And it shall be lawful for any spiritual person or persons, by him- 
 self or themselves, or any other, to his or their use, to have, hold, use, 
 or occupy in ferm, any manors, lands, tenements, or hereditaments, 
 demised, leased, or granted to him or them, or his or their property and 
 estate, or to take, purchase, receive, or hold, as the property and 
 estate of such spiritual person, anv lease or leases for life or lives, or 
 for term or terms of years, absolute or determinate on any life or lives, 
 or to take any annual rent, or other annual advantage or profit by 
 occasion of any lease or ferm of any manors, CSV. the property or 
 estate of any such spiritual person or persons belonging to him or them, 
 either in his or their own right, or in right of any other person, or 
 by reason of his or their holding any spiritual dignity or benefice, or so 
 taken, purchased, &c. as aforesaid, as the property or estate of such 
 spiritual person, notwithstanding the said recited or any other Act : 
 Provided that nothing herein contained shall authorize any spiritual
 
 96 To whom Leases may be made. [Chap. IV< 
 
 person holding any dignity, prebend, benefice, donative, perpetual 
 curacy, or parochial chapelry, or serving a stipendiary curacy, to take, 
 receive, or hold any manors, &?c. after the passing of this act, for the 
 purpose of occupying or to occuoy the same, for the cultivation thereof, 
 or procuring profit therefrom, by himself, or any bailiff or servant, to 
 his use, unles- the same shall have been taken, received, or holden un- 
 der a lease granted to such person on or before the first day of January 
 1S03, or unless by the consent in writing of the bishop as aforesaid, 
 j. 5.- And by s. 6. such spiritual persons are authorized to buy or sell 
 cattle or corn for the occupation or profit of such farms, CSV- so holden. 
 Provided that they do not buy or seii any cattle or corn in person in any 
 market, fair, or place or public sale. 
 
 And any spiritual person having any vicarage or perpetual curacy, or 
 any stipendiary curate thereof may occupy by himself or any other to 
 his use, the impropriate parsonage, rectory, or vicarage, or any part 
 thereof, or take any profit or rent out of .-uch farm, notwithstanding 
 the said recited or any other act. But if such impropriate parsonage, 
 rectory or vicarage, or such part thereof, shall not have been occupied, 
 at any time before the passing ol this Act, by the same or any other 
 cuch spiritual person as aforesaid, such person shall remain liable to the 
 penalties, CSV. under the said recited or any other Act, unless he shall 
 have obtained the licence of the bishop for such occupation, s. 8. 
 
 And any clergyman who shall be licensed or be exempted from resi- 
 dence under this or any ether Act, may take to ferm and occupy in the 
 parish where he resides, or any adjoining parish, such lands lor the 
 convenience of his household and hospitality only, as the bishop may in 
 writing allow, s. 9. 
 
 All contracts or agreements made after the passing of the Act for 
 letting houses in which any spiritual persons shall be, by order of the 
 archbishop or bishop, required to reside, shall be void; and persons 
 holding possession after the day appointed by such, order, shall forfeit 
 401. for each day he shall ^0 hold over, such penalty to be recoverable 
 by action of debt, C5V. in any court of record at IVesiminster, or the 
 courts of great sessions in Wales, and to go to such person who shall 
 inform and sue for the same, together with costs : but in case of such 
 contracts or agreements made before the passing of the Act, no such 
 penalty shall be incuned for three months from the service of the copy 
 of such order as aforesaid upon such occupier or at such house of re- 
 sidence ; but after such period the person continuing to hold shall 
 forfeit 4Cj- for each day's continuing to hold over as aforesaid, s. 34. 12. 
 
 No penalty for farming shall be incurred under this or any other 
 statute, tili the rth day of Jprii, 1804; noi shall this Act deprive any 
 spiritual persons of any privilege.; they enjoyed under the said recited 
 Act or otherwise. J". 43. ii. 
 
 Infants.— -In debt foz rent the defendant pleaded infancy at the time
 
 Chap. IV.] To whom Leases may be made. 97 
 
 of the lease made ; and upon demurrer, the Court held the lease void- 
 able only at his election ; for if it were for his benefit, it shall be no 
 ways void, but the infant at his election may make it void, bv refusing 
 and waiving the land before the rent-day comes •, in which case no ac- 
 tion of debt would lie against him ; but the defendant not having so 
 done, and being of age before the rent-day due, and it not being shewn 
 to the court that in this case the rent was of greater value, the plaintiff 
 had judgment (a). 
 
 If a person jointly interested with an infant in a lease, obtain a re- 
 newal to himself only, and the lease prove beneficial, he shall be held 
 to have acted as trustee, and the infant may claim his share of the be- 
 nefit ; but if it do not prove beneficial, he must take it upon himself. 
 This is the peculiar privilege of the unprotected situation of an in- 
 fant (J>). 
 
 Where a lease to an infant however is not by deed, he will perhaps 
 be liable at all events for use and occupation of the premises in which 
 he resides; for he is liable for necessaries, under which description 
 lodging must surely come : wherefore such case would probably be held 
 to fall within the fair liability which the law imposes on infants of being 
 bound for necessaries, which is a relative term, according to their station 
 in life (r). 
 
 Femes-Covert. — A feme-covert cannot be a lessee, for her free agency 
 is so suspended during coverture, that she may plead nm est factum to 
 an action on any covenant in the lease, for evidence that she was covert 
 at the time of executing the lease, will prove it to be not her deed. For 
 use and occupation of premises, her baron will be liable (,'/). 
 
 Aliens. — With respect to aliens, the statute of 32 H. 8. c. 16. s. 13. 
 makes all leases of any dwelling-house or shop, within this realm or any 
 of the king's dominions, made to any stranger, artificer, or handicrafts- 
 man born out of the king's obeisance, not being a denizen, void and of 
 none effect (e). This statute may be pleaded in bar to an action of debt, 
 for rent, brought against an executor or administrator ; but in pleading 
 it, it seems necessary to aver that the messuage demised was a dwelling 
 house or shop. A place need not be alleged where he was an alien and 
 an artificer (/)■ 
 
 The above mentioned statute is still in force; but though it makes 
 /eases of dwelling houses or shops granted to any stranger artificer void, 
 yet if such artificer occupy a dwelling-house or shop under an agree- 
 ment which does not amount to a lease, as if he be tenant from year to 
 year, or for a shorter time, an action for use and occupation will lie 
 against him notwithstanding the statute (g). 
 
 (<0 Bull. N. P. 177. Crc.Jsc jao. (}) I Bos. & Pul. 376. 
 
 (;) S T. R. 578. yd) Cvo. Jac. 172. '-} 1 Saund. R. ;. 
 
 ' r" 1 Saiind.8. R, :. '?) I'»id. v.. r. 
 
 II
 
 9$ To whom Leases may be made. [Chap. IV. 
 
 An alien therefore is incapable cf being party to a lease ; for being 
 horn in a foreign country out of allegiance to the king, the policy of 
 the laws has placed every obstacle in his way to prevent him from ac- 
 quiring possessions and the influence that accompanies them, in a coun- 
 try that does not claim his allegiance, and with the interest of which 
 he is unconnected. The exceptions to this wise principle of exclusion 
 are created only by the consequences of commerce : for the convenience 
 of trade, therefore, an alien friend is now permitted to acquire a pro- 
 perty in goods, money, and other personal (not real) estate ; and he 
 may hire a house for his habitation for the greater convenience of car- 
 rying on his trade, but he cannot assign or dispose of his interest in it, 
 even to a natural-born subject. — The general naturalization act for all 
 foreign protestants, however, which was carried into execution by stat. 
 7 Ann. c. 5. it was found necessary to repeal, after three years' expe- 
 rience, by stat. 10 Ann. c. 5. except the clause for naturalizing the chil- 
 dren of English parents born abroad ; and the impolicy and injustice 
 of putting foreigners upon the same footing as the subjects of the 
 country, are probably sufficiently manifest to prevent any similar expe- 
 riment in future. 
 
 An alien may indeed take by purchase ; but then it is for the benefit 
 of the crown : unless the crown however interpose, he may maintain an 
 action for lands purchased by him (a). 
 
 But there is no instance where a woman alien is in possession of an 
 estate, but that it must be for the benefit of the crown ; and the hus- 
 band by marrying her cannot be said to be seised of such estate (/;). 
 
 But though an alien cannot, as such, take a lease of a dwelling- 
 house or shop, by reason of the statute 32 //. 8. c. 16. yet he may oc- 
 cupy a tenement of 10/. a year, and carry on his trade there like any 
 other person : and as he may do so, he has that interest which enables 
 him to gain a settlement by the provision of the legislature (c). 
 
 All children born out of the king's dominions, whose fathers, (or 
 grandfathers by the father's side) were natural born subjects, though 
 their mothers were aliens, are now by various statutes deemed to be 
 natural born subjects themselves to all intents and purpose:;., unless their 
 said ancestors were attainted ; are banished beyond sea for high trea- 
 son ; or were at the birth of such children in the service of a prince at 
 enmity with Great Britain. But grandL'hiidreu of such ancestors shall 
 not be privileged in respect of the alien's duty, except they be protes- 
 tants, and actually reside within the realm ; nor shall be enabled to 
 claim any estate or interest, unless the claim be made within five vears 
 after the same shall accrue. 
 
 The issue of an English woman by an alien, born abroad, is an 
 alien. 
 
 (*)aA:k.398. 1 Bos. & PuL 48. (*) z Atk. 338. (.) 4 East's R. 107-.
 
 Chap. IV.] To whom Leases may be made. 99 
 
 The children of aliens born in England are, generally speaking, 
 natural born subjects, and entitled to all the privileges of such [a) 
 
 Denizens.^ -A denizen is an alien bom, but who has obtained, ex 
 donatione regis, letters patent to make him an English subject, an high 
 and incommunicable branch of the royal prerogative. A denizen is a 
 kind of middle state, between an alien and a natural born subject, and 
 partakes of both of them (Z>). 
 
 He may take lands by purchase or devise, which an alien may not, 
 but cannot take by inheritance. 
 
 A denizen therefore may be a lessor or lessee, for 'he chief inca- 
 pacity which he retains regards the defect of inheritable blood, so that 
 in other respects his situation may, i a great degree, be assimilated to 
 that of a bastard. He cannot however take any grant of lands, &C 
 from the crown ; nor sit in a council, or in either house of parliament (c). 
 
 Naturalization cannot be performed but by act of parliament; for by- 
 tins an alien is put in the same sta * as if he had been born in the 
 king's ligeance ; except only that by the stat. 12 W. 3. lie is incap ?.ble, as 
 well as a denizen, of being a member of the privy council, or of either 
 house of parliament, holding offices, taking grants of the crown, & c \ 
 
 (V) l Bl Coin. 373. {!'} 7 Rep. 2$. if) St. x% W.3. c.2,
 
 [ ioo 3 
 
 CHAPTER V. 
 
 Oj the subject matter of Leases. 
 
 Section I. Of corporeal Hereditaments ; wherein of 
 Farms, Lands, Houses, and Lodgings. 
 
 Section II. Of incorporeal Hereditaments; wherein oj 
 Tithes, Tolls, Advowsons, Rent, 8$c. 
 
 Section I. Of corporeal Hereditaments. 
 
 VFTER such time as leases for years began to be looked upon as 
 fixed and permanent interests, and that the lessees were suffi- 
 ciently provided to defend themselves and their possessions against 
 the acts and incroachments, as well of the lessor as of strangers, men 
 found it their interest to improve and encourage this sort of property, 
 and therefore extended it to all sorts of interests and possessions 
 whatsoever, being led thereto by that known rule, that whatsoever may 
 be granted or parted with for ever, may be granted or parted with for a 
 time (a). 
 
 Not only lands and houses, therefore, have been let for years, but also 
 goods and chattels; though the interest of the lessee therein differs 
 from the interest he hath in lands or houses so let for years ; for if one 
 lease for years a stock of live cattle, such lease is good, and the lessee 
 hath the use and profits of them during the term ; but yet the lessor 
 hath not any reversion in them to grant over to another either during 
 the term or after, till the lessee hath re-delivered them to him, as he 
 would have of lands in case of such lease for years ; for the lessor hath 
 only a possibility of property in case they all outlive the term ; for if 
 any of them die during the term, the lessor cannot have them again 
 after the term, and during the term he hath nothing to do with them, 
 and consequei ly of such as die, the property rests absolutely in the 
 lessee (b). 
 
 So, whether they live or die, yet all the young ones coming of them, 
 as lambs, calves, &c. belong absolutely to the lessee as profits arising 
 and severed from the principal, since otherwise the lessee would pay his 
 rent for nothing; and therefore this differs from a lease of other dead 
 goods and chattels, for there, if any thing be added for the repairing, 
 mending, or improving thereof, the lessor shall have the improvements 
 
 - Bac Abr. m."jLca:'.s."(A0 .;': IbiJ,
 
 Sect. I.] Of corporeal Hereditaments. 10] 
 
 and additions together with the principal, after the lease ended, because 
 they cannot be severed without destroying or spoiling the principal : 
 neither is the succession of young ones, in case any of the old ones 
 die, to be resembled to a corporation aggregate, whereof when any die, 
 those that succeed shall be said to be part of the same corporation, for 
 the corporation in its public capacity never dies ; but this being a lease 
 of such and such individual cattle, when any of them die, the possibi- 
 lity of reverting property, which was left in the lessor, is determined, 
 and at an end. But the lessee, in such case, cannot kill, destroy, sell, 
 or give them away, during the term, without being subject to an action 
 of trespass, as it should seem (a). 
 
 Touching the import of the word " hereditament," Lord Kenyan ob- 
 served (Z>), that it was not so strong a word as tenement ; but was 
 merely a description of the thing itself, and not the quality of it or in- 
 terest in it: and this accords with the difference taken between the two 
 words hxreditas and h&reditamenhtm ; for the word hxreditas imports the 
 estate which a man has in the land \ hareditamentum the land itself 
 which may be inherited, and therefore cannot be applied to the estate 
 in the land (<r). Holt, C. J. however says the word "hereditament" 
 implies a fee (d) : which is consonant to Sir E. Coke's exposition of the 
 word, which he says is by much the largest and most comprehensive 
 expression ; for it includes not only lands and tenements, but whatso- 
 ever may be inherited, be it corporeal or incorporeal, real, personal, 
 or mixed (e). 
 
 Corporeal hereditaments consist wholly of substantial and permanent 
 objects ; all which may be comprehended under the general denomina- 
 tion of land only ; for land comprehends, in its legal signification, any 
 ground, soil, or earth whatsoever ; so the word " land" includes, not 
 only the face of the earth, but every thing under it, or over it ; and 
 therefore, if a man grant all his lands, he grants thereby all his mines 
 of metal and other fossils, his woods, his waters, and his houses, as well 
 as his fields and meadows : not but that the particular names of the 
 things are equally sufficient to pass them, except in the instance of 
 water j by a grant of which, nothing passes but a right of fishing, and 
 to recover the land at the bottom of which, it must be called so many 
 " acres of land covered with water." But the capital distinction is 
 this ; that by the name of a castle, messuage, toft, croft, or the like, 
 nothing else will pass, except what falls with the utmost propriety under 
 the term made use of, (though indeed, by the name of a castle, one or 
 more manors may be conveyed ; and e converse, by the name of the 
 manor, a castle may pass) ; but by the name of land, which is nomen 
 generalissimum, every thing terrestrial will pass (f). 
 
 00 Bac. Abr.tit. " Leases." (A). («) 8 T.R.503. (c) 1 Com.R. 164. 
 
 ("0 Holt. 236. (» Co. Lit. 19, ao. a Bl. Com. 17. Shep. Touch. 91. 
 
 (/) 3 Bl. Com. iS,
 
 102 Of corporeal Hereditaments. [Chap. V. 
 
 Leases for life, or years, or at will (now construed to be from year to 
 year), may be made of any thing corporeal or incorporeal that lieth in 
 livery or grant (a). 
 
 A man therefore may demise his farm, which may comprehend a 
 mes?' "., c ;. d much land, meadow, pasture, wood, &c. thereunto be- 
 longing, or therewith used ; for this word doth properly signify a ca- 
 pital or principal messuage, and a great quantity of demesnes thereunto 
 appertaining (b). 
 
 So, by th<: name of a messuji e, he may pass a house, a curtelage, a 
 garden, an orchard, a dove-house, a shop or a mill, as parcel of the 
 same ; the 1\. ox a cr.'tage, a toft, a chamber, a cellar, <Sc. Yet these 
 3na - - nass by t! < ir own single names also, as " of one messuage, one 
 curtelage, e'r (V)." 
 
 If A. lets a garden ground for years, and the lessee demises part of 
 the term to an under-tenant, who builds on it, by a grant of the garden 
 ground the buildings thereon will pass (7/). 
 
 So, a house ; and in case of a lease of a house, together with goods, 
 it is usual to make a schedule thereof and affix it to the lease, and to 
 have a covenant from the lessee to rc-deiiver them at the end of the 
 term ; for without such covenant the lessor could have no other remedy, 
 but trover or detinue for them after the lease ended if). 
 
 The demise of a house " with the appurtenances," will, it seems, 
 pass the house, with the orchards, yards, and cunelage, and garden, 
 but not the land (f) ; especially if it be at a distance, though occupied 
 with the house, but if the lessor had built a conduit, though in another 
 part of the land, yet the conduit would pass with the house, because it 
 is necessary, et qiiasi, appendam thereto (g) : yet if the lessee erect such 
 a conduit, and afterwards the lessor, during the lease, sell the house to 
 one, and the land wherein the conduit is to another, and afterwards the 
 lease determines, he who has the land wherein the conduit is may dis- 
 turb the other in the using thereof, and may break it, because it was 
 not erected by one who had a permanent estate or inheritance, nor made 
 one, by the occupation and usage of them together, by him who had 
 the inheritance.— So, the demise of a house, " and the appurtenances," 
 will not pass an adjoining building not accounted parcel of the house 
 although held with it for thirty years (h). But in one case it was held 
 that a grant irom the crown, of a house cum pertinentiis would pass land 
 that was occupied with the house : in this case however it should not be 
 overlooked that the point arose on a special verdict, in which the house 
 and iand were found to be all one (?). 
 
 Whether the thing claimed as appurtenant be accounted parcel or 
 
 fa) . c: hep. Touch. 268. (b) Ibid. 93. (c) Ibid. 12. 
 
 (d) Cro. Jac.648. (<) Bac. Abr. tit. "Leases." (A). (J) Cro. Car. 57. Cro. Jac. 526, 
 
 (*) Ibid. 121. (Z) Cro. Car. 17. (i) Ibid. 169.
 
 Sect. II.] Of incorporeal Hereditaments. 103 
 
 not, and the intention of the parties, are the rules by which to judge 
 in these cases (a). 
 
 Thus, where there is a conveyance in general terms of all that acre 
 called Black-acre, every thing which belongs to Black-acre passes with 
 it; but whether parcel or not of the thing demised is always matter of 
 evidence (b). 
 
 It may be necessary, however, to put a different construction on leases 
 made in populous cities from that on those made in the country. It is 
 known, for example, that in the metropolis different persons have se- 
 veral freeholds over the same spot, (as in the case of the Addphi) ; dif- 
 ferent parts of the same house are let out to different people; such is 
 the case in the inns of court. It would therefore be very extraordinary 
 to contend that if a person purchased a set of chambers, then leased 
 them, and afterwards purchased another set under them, the after-pur- 
 chased chambers would pass under the lease (<r). 
 
 So, the demise of premises in Westminster late in the occupation of 
 
 A. (particularly describing them), part of which was a yard, was held 
 not to pass a cellar situate under that yard, which was then occupied by 
 
 B. another tenant of the lessor ; for though prima facie indeed, the 
 property in the cellar would pass by the demise, yet that might be re- 
 gulated and explained by circumstances ; and, as the construction of all 
 deeds must be made with a reference to their subject matter, it is right 
 in such cases to let in evidence to shew the state and condition of the- 
 property at the time when the lease was granted (d). 
 
 The respective apartments of a house may be, and frequently are, let 
 to several and distinct individuals ; which tenancies are termed lodg- 
 ings, and the tenants thereof lodgers, respecting which see more at !arg£ 
 hereafter. 
 
 Section II. Of incorporeal Hereditaments* 
 
 An incorporeal hereditament is a right issuing out of a thing cor- 
 porate, (whether real or personal) or concerning, or annexed to, or 
 exercisable within the same. Incorporeal hereditaments are principally 
 these, viz. advowsons, tithes, tolls, estovers, commons, ways, offices, 
 franchises, corrodies or pensions, annuities, and vents (e). 
 
 Incorporeal hereditaments are generally speaking capable of being 
 demised, and such demise must be by deed, for they lie in grant and 
 not livery \ so things incorporeal may be granted by copv of court- 
 roll (/). 
 
 (a) Cro. Car. 17. (L) i T. R. 704. (c) [bid. 703. 
 
 y; lb;J. (e) Co. Lit. 19, 20. (/', 1 T. R. 360. \ViJes. 3^3. 1 Ir.jt. 9, 
 
 4
 
 104 Of incorporeal Hereditaments. , [Chap. V. 
 
 Advcwsons. — An advowson is a valuable right, and properly the ob- 
 ject of sale ; it is therefore real assets in the hands of the heir : but as 
 the exercise of this right is a publick trust, it cannot, it ought not, to 
 produce any profit. — Therefore, though an advowson may be granted, 
 either by a grant by deed or will, of the manor, l$c. to which it is ap- 
 pendant, without any exception of the advowson, in which case it 
 will pass, (for it is parcel of the manor, except in the case of the king) 
 or by grant of the advowson alone, and such grant may be either in 
 fee, or for the right of one or more turns, or for as many as shall happen 
 within a time limited : yet it cannot properly be thesubject of a demise, 
 for as no profit is permitted to accrue, no rent can be reserved, nor any 
 services performed to the proprietor. 
 
 This, however, does not seem to be quite correct : for there is no 
 doubt, (says Mr. W ooddeson,) but that the lessee of tithes, an advoiv- 
 sctiy or any incorporeal hereditament, would be liable to an action of 
 debt for the rent agreed upon (a). So where lessee for years of an ad- 
 vowson was presented to the advowson by the lessor, it was adjudged to 
 be a surrender of his term (b). — Thus it seems clear that an advowson 
 may be the subject of a demise : and though L. C. Talbot doubted (c) 
 whether the word " tenements," which had been said to carry an ad- 
 vowson in a will, extended to incorporeal inheritances, yet it appears to 
 be the better opinion, that as' lands and houses are tenements, so is an 
 advowson a tenement (J). 
 
 Tithes. — Tithes have been denned to be, a tenth part of the increase, 
 yearly arising and renewing from the profits of lands, the stock upon 
 lands, and the personal industry of the inhabitants-, and are an ecclesi- 
 astical inheritance, collateral to the land, and properly due to an eccle- 
 siastical person. 
 
 A parson of a church may grant his tithes for years, and yet they are 
 not in him (<?). 
 
 By the statute 5 G. 3. c. 17. entitled "An act to confirm all leases 
 already made by archbishops and bishops, and other ecclesiastical per- 
 sons, of tithes and other incorporeal hereditaments, for one, two, or 
 three life or lives, or twenty-one years ; and to enable them to grant such 
 leases, and to bring actions of debt for the recovery of rents reserved and 
 in arrear on leases for life or lives," any other person or persons, having 
 any spiritual or ecclesiastical promotions, are enabled to grant such 
 leases of tithes, toils, or other incorporeal inheritances, " which shall 
 be as good and effectual in law against such archbishop, bishop, masters 
 and fellows, or other heads and members of colleges or halls, deans 
 and chapters, precentors, prebendaries, masters and guardians of hos- 
 pitals, and other persons so granting the same, and their successors, 
 and every of them, to all intents and purposes, as any lease or leases 
 
 (a) zWoodd. 69, (/>} Cro. Jac. 84. (..-) Cas. temp. Talbot, 144, 
 
 N) Co. Lit. 19, 30. % L"i Com. 17. 3 P. Wins. 461. (*) Shep. Touch. 241.
 
 Sect. II.] Of incorporeal Hereditaments. 105 
 
 already made, or to be made by any such archbishop, Zsfc." by virtue 
 of the stat. 32 H. 8. c. 28. or any other statute then in being; and 
 action of debt may be brought by such lessors for rent in arrear, as in 
 the case of any other landlord or lessor. 
 
 Tolls —Tolls also, may be let or mortgaged (a). 
 Estovers. — So, estovers (of which more hereafter) may be leased; 
 the grantee, therefore, of house-bote, or hay bote, may let it to 
 another (I?). 
 
 Commons — With respect to commons, the stat. 13 G. 3. c. 81. s. 15. 
 empowers the lord of any manor with the consent of three-fourths of 
 the persons having right of common upon the wastes and commons 
 within the manor, at any time to demise or lease, for any term or 
 number of years, not exceeding four years, any part of such wastes and 
 commons, not exceeding a twelfth part thereof, for the best and most 
 improved yearly rent that can by public auction be got for the same ; 
 and directs that the clear net-rents shall be applied to drain, fence, and 
 otherwise improve the residue of the wastes and commons. 
 
 A lessee for lives cannot acquire a fee by encroachment upon the 
 waste adjoining the land demised, though accompanied by thirty 
 years' uninterrupted possession, but it shall be intended that he incloses 
 the waste in right of the demised premises, for the benefit of the lessor 
 after the term expired ; more especially, if his lessor be seized in fee of 
 the waste. Acts exercised in assertion of right upon one part of a 
 waste are admissible in evidence against occupiers of another part of the 
 same waste (r). 
 
 Ways. — Ways are, or a right of way, are demiseable with the land; 
 for the grantee or lessee shall have all the ways, easements, &c. which 
 the grantor or lessor had (d). 
 
 Therefore, where one as trustee conveys land to another, to which 
 there is no access but over the trustee's land, a right of way passes of 
 necessity, as incidental to the grant (e) 
 
 If a man, upon a lease for years, reserve a way to himself through 
 the house of the lessee to a back-house, he cannot use it but at season- 
 able times and upon request (/). 
 
 Offices. — An office may be granted by way of lease, provided no 
 inconvenience or injury to the public is likely to ensue; and it may be 
 granted in fee-tail, for life, or years, or at will (g). 
 
 But an office to which a trust is annexed, or which concerns the 
 administration of justice, cannot be granted for years, for then it would 
 go to the executor, or administrator, or ordinary, and might be seised 
 upon outlawry, l3c. (h). Therefore the office of marshal of the King's 
 Bench cannot be granted for years, because it is an office of trust and. 
 daily attendance-, and such a termor for years may die intestate, and 
 
 (j) 2 T. R. 169. {b) Shep. Touch. 222. Bac. Abr. tit. " Leases." (A.) 
 
 (:) 1 Taunt. 208. (d) 6 Mod. 3, 149. Cro. Jac. 1 70, 190. (e) 8 T. R. 50, j6. 
 
 (/) 1 Vent. 48. (g) Com. Dig. tit. « Officer." (B, 7, &c.) (J) Ibid. 
 n
 
 20b Of incorporeal Hereditaments; [Chap. V. 
 
 tnen it would be in sixpence until administration is committed, which 
 is the act of another court (a). 
 
 It hath however been held, that a lease thereof for years during the 
 life of the grantee is good; for hereby the danger of the office going to 
 executors is avoided. It appears also, that the dean and chapter of 
 Westminster made a lease for years of the Gate-house prison [since 
 pulled down] and the lessee had committed several offences which 
 amounted to a forfeiture, for which the office was seised: but no objec- 
 tion was made to its being let for years. There seems to be a difference, 
 however, between the two cases : the first, namely, that of the Mar- 
 shal of the King's Bench, (since regulated by statute 13 G. 7. c. 17.) 
 was a grant from the crown, in whom all offices, in relation to the 
 administration of justice, are originally and inherently lodged, and 
 therefore for the crown to grant out such office for years may be liable 
 to the objections before-mentioned; but in the latter case, namely that 
 of the Gate-house prison, the dean and chapter are the immediate grantees 
 of the crown, and they have the office to them and their successors 
 for ever in fee, and are perpetual gaolers themselves, and answerable 
 to the crown, notwithstanding any lease over to another; and therefore 
 they always take security of such under-lessee for their own in* 
 demnity (£). 
 
 Such offices as do not concern the administration of justice, but only 
 require skill and diligence, may be granted for years, because they may 
 be executed by deputies, without any inconvenience to the public. 
 
 Where one made a grant for years of the stewardship of a court-lect 
 and court-baron, it was held void as to the court-leet, being a judicial 
 office, but good as to the court-baron, being only ministerial, and the 
 suitors judges thereof; but the grant appearing afterwards to be for 
 years determinable upon the death of the lessee, it was held good for 
 both, because there was no danger of its coming to executors or ad- 
 ministrators. 
 
 An office cannot be demised by parol (c). 
 Dignities and honours cannot be granted for years. 
 Franchises. — Franchises may be demised, except indeed in some few 
 particular cases, as where the franchise is a personal immunity, \a?c. 
 Thus a fair or market, either with or without the right of taking toll, 
 either there or at any other public places, as at bridges, wharfs, or the 
 like, may be demised. Every fair is a market, but not t contra {d)% 
 
 Corrodies and Pensions. — Touching corrodies and pensions; the great 
 endowments of lands, rents, and revenues, given to the churchmen by 
 the laity, were for the maintenance of hospitality and works of charity ; 
 the founders and benefactors thereby obtained a right of corrody or 
 entertainment at such places, in nature of free quarter (e). A corrody 
 
 (,/) 3 Mod. 145. (£) 6 Mod. 57. Bac. Abr. tit. " J. ease?." (A.) 
 
 0) z Ld. Raym. 85;,. Ear. Abr. tit. " Least's." (A.) (d) 3 Inst. 406, 22I-. 
 
 (e) 1 Bl. Com. 41. Bat. on JEn£. Guv. b. i. c. Ixvi.
 
 Sect. II.] Of incorporeal Hereditaments. 107 
 
 therefore is a right of sustenance, or to receive certain allotments of 
 food for one's maintenance; in lieu of which, especially when due from 
 ecclesiastical persons, a pension or sum of money is sometimes substi- 
 tuted ; and these are chargeable on the person of the owner of the in- 
 heritance in respect thereof. It is said, that a corrody may be due to a 
 common person by grant from one to another. A corrody is either 
 certain or uncertain, and may be not only for life or years, but in fee. 
 If one hath a corrody for life, he may let it to another, or to the grantor 
 himself (a). 
 
 Annuities. — An annuity is an annual sum of money granted to another 
 in fee, for life, or years, which charges the person of the grantor 
 only; or it may be due by prescription, which always implies a grant (F). 
 Such annuity may be demised by way of assignment (c). 
 
 Rents. — Rents form the last kind of incorporeal hereditaments, and 
 may be the subject of a lease. 
 
 The word rent, or render, reditus, signifies a compensation or return, 
 it being in the nature of an acknowledgment given for the possession of" 
 some corporeal inheritance (d). 
 
 There are at common law three manner of rents: rent-service, rent- 
 charge, and rent-seek. Rent-service is so called because it hath some 
 corporal service incident to it, as at the least fealty: for if a tenant hold 
 his land by fealty, and ten shillings rent, or by service of ploughing the 
 lord's land and five shillings rent, these pecuniary rents being con- 
 nected with personal services, are therefore called rent-service; and for 
 these, in case they be behind or in arrear at the day appointed, the lord 
 may distrain of common right, without reserving any special power of 
 distress; provided he hath in himself the reversion, or future estate of 
 the lands and tenements, after the lease or particular estate of the lessee 
 or grantee is expired. A rent-charge is where the owner of the rent 
 hath no future interest, or reversion expectant in ihe land: as where a 
 man by deed rriaketh over to others his whole estate in fee-simple, with 
 a certain rent payable thereout, and adds to the deed a covenant or 
 clause of ciisiress, that if the rent be in arrear, or behind it shall be 
 lawful to distrain for the same: in this case the land is liable to the 
 distress, not of common right, but by virtue of the clause in the deed; 
 and therefore it is called a rent-charge, because in this manner the land 
 is charged with a distress for the payment of it (e). — A clear rent-charge 
 must be free from the land-tax (f). 
 
 If a rent charge be granted in fee with a clause of distress, and a 
 fine be levied of the lands, to the use and intent that if the said yearly 
 *cnt should be behind, and no sufficient distress, the grantee, his heirs 
 or assigns, may enter till the rent be paid; on half a year s rent becoming 
 
 (a) New Terms of Law. B.-c. Abr. tit. " Leases." (A.) 
 
 (£) Co. Lie 144. b. Com. Dig. tit. " Annuity." (A. i.) (c) Ibid. (E.) 
 
 U) Z Bl. Com. 41. ( e ) Hid. fj) D3115. 6j8.
 
 I OB Of incorporeal Hereditaments. [Chap. V. 
 
 arrear, the grantee may enter ; for this is not a condition, but a limitation 
 to the use, and shall be construed according to the intent of the parties ; 
 and the yearly rent was arrear, when any of the half-year wasarrear («). 
 
 If a rent-charge be granted out of a lease for years, it hath been 
 adjudged that the grantee may bring annuity when the lease is ended (£). 
 
 Rent-seek or barren rent, idem est quod reditus siccus^ is in effect 
 nothing more than a rent reserved by deed, but without any clause of 
 distress (c). 
 
 There are also other species of rents, which are reducible to the 
 following three. Refits of assize, which are the certain established rents 
 of the freeholders and ancient copyholders of a manor, and which 
 cannot be departed from : those of the freeholders are frequently called 
 chief-rents, reditus capitales, and both sorts are indifferently denominated 
 quit-rents ; quieti reditus ; because thereby the tenant goes quit and free 
 of all other services. 
 
 Rack-rent is only a rent of the full value of the tenement or near 
 it (d). • 
 
 A fee-farm refit is a rent-charge or rent-service, which is reserved 
 on a grant in fee; the name is founded on the perpetuity of the rent or 
 service, not on the quantum (e). 
 
 This point however is questioned, though as Mr. Hargraves seems 
 to us to be the better opinion, we have adopted it. Vide Doug. 605. 
 
 A grant of lands therefore reserving so considerable a rent, was 
 indeed only letting lands to farm in fee-simple instead of the usual 
 terms for life or years (f)- Since the statute of quia emptores, Westm. 
 18 Ed. 1. st. 1. it seems such grants by any subject cannot be made, 
 because the grantor parting with the fee is by operation of that statute 
 without any reversion, and without a reversion there cannot be a rent- 
 service (g). 
 
 If the reservation be of corn, as in the case of an hospital renewed 
 lease, where the reddendum was " so many quarters of corn," it will be 
 understood to mean legal quarters, reckoning the bushel at eight gallons ; 
 although the old leases before the statute 22 and 23 Car. 2. c. 12. con- 
 tained the same reddendum, and although till lately the lessees paid by 
 composition, reckoning the bushel at nine gallons (/>). 
 
 These are the general divisions of rent; and the difference between 
 them (in respect of the remedy for recovering them) is now totally 
 abolished by stat. 4 G. 2. c. 28. ; as all persons may have the like remedy 
 by distress for rents-seek, rents of assise, and chief-rents, that is for 
 such as had been paid for three years, within twenty years before the 
 passing that act, or for such as have been since created, as in case of 
 rents reserved upon lease (i). 
 
 (<?) Cro. Jac. 510. {!>) Moot. c. 450. (c) 2 El. Com. 41. 
 
 (J) Harg. n. 5. Co. Lit. 144. (<;) Bl. Com. ut ant:. (/) 3 Bl. Com. 43. 
 
 Kg) Hargrave's n. supra. (/•) 6 T. R. 338- ,(') 3 BL Com. 43.
 
 Sect. II.] Of incorporeal Hereditaments. 10t) 
 
 Statute 12 C. 2. c. 24. s. 5. provides that nothing therein contained 
 shall be construed to take away any rents certain, or other service 
 incident or belonging to tenure in common socage, or the fealty and 
 distress incident thereunto; and that such relief shall be paid in respect 
 of such rents as is paid in case of a death of a tenant in common socage. 
 
 Occasionally also, acts of parliament empower the officers of govern- 
 ment to grant leases of the duties thereby imposed ; as the act 12 C. 2 . 
 c. 23. s. 27. respecting the duties of excise upon ale, beer, £sV. and 
 also c. 25. s, 3. of the same reign, csV.
 
 [ no j 
 
 CHAPTER VI. 
 
 For what Term Leases may be made. 
 
 Section I. Of Terms for Life, and how created. 
 
 Section' II. Of Terms for Years, absolutely or on con- 
 dition, wherein of the commencement, duration, and ter- 
 mination of them; and of the surrender and renewal of 
 
 Leases. 
 
 Section I. Of Terms for Life, and how created. 
 
 WHERE a lease is granted for life, it confers a freehold interest in 
 land ; the duration of which is confined to the life or lives of 
 some particular person or persons, or to the happening, or not hap- 
 pening, of some uncertain event (a). But a demise for the term of a 
 life or lives, requires to be perfected by livery of seisin •, and the as- 
 signments of leases for lives are commonly made by lease and release. 
 
 If lands are demised or granted to a man generally, without denoting 
 the quantity of estate intended to be given, and livery be made upon 
 it, such demise or grant to another generally, by tenant in fee, shall be 
 an estate to the lessee for his own life; for his life is greater in con- 
 sideration of law than another's life ; and therefore if he leases to him 
 in remainder or reversion for his life, he shall have it after the death 
 of the lessee, for it was not a surrender : but if it be by tenant in tail, 
 it shall be for the life of the lessor : for that is all he can lawfully grant, 
 unless he lease according to the stat. 32 H. 8. c. 28 {b)> 
 
 So, a demise to another for a time indeterminate, passes for life, if 
 livery be made (r). 
 
 Or a demise of things which lie in grant, without livery (d). 
 
 Estates for life granted absolutely, will, generally speaking, endure as 
 long as the life for which they were granted (Y). 
 
 But there are some estates for life which may determine upon future 
 contingencies before the life for winch they are granted expires ; as 
 where a lease is to a man quamdiu se bene gesscrit ,• to a woman durante 
 vidnitate or inm sola; to husband and wife during coverture; to A. as 
 long as he inhabits, or pays such rent, or till he be preferred to such a 
 benefice, or till out of the profits he has paid 100/. or other sum, or 
 during his exile, if he be absent from his country voluntarily, and not 
 
 (<;) Cruis. Dig. Estate for Life. (/■) Coir. Dig. tit. " Estates." (E. 1.) and Co. Lit. 412, *cv 
 
 (0 Ibid. {/) Ibid. (<)zBl.Cun. 131.
 
 Sect. I.] Of Terms for Life, and hozv created. 1 1 , 
 
 by edict. In these and such like cases the duration of the estate depends 
 merely upon the condition (<*). 
 
 So, if the king grants an office at will, and a rent for it for Ids life, 
 the grantee has an estate for life in the rent, though it determines with 
 his office (i>). 
 
 But if one make a lease for life, and say that if the lessee within 
 one year pay not 20s. he shall have but a term for two years ; by 
 this if he do not pay the money he has only a lease for two years, even 
 though livery of seisin be made upon it (V). 
 
 But where a person devises lands to his executors for payment of 
 his debts and until his debts are paid, although the determination of 
 such estate be uncertain, yet it is not an estate for life, for if it were, 
 it must determine at the death of the executors, which would frustrate 
 the intention of the testator, or all the debts might not be then paid : 
 rhe law therefore gives the executors a chattel interest, which will go 
 to their executors and continue until all the testator's debts are paid, 
 and the freehold and inheritance will descend in the mean time to the 
 heir. But if a limitation of this kind were made by deed, it is a free- 
 hold conditional (d). 
 
 Of Livery of Seisin. — Livery by the common law, is necessary to be 
 made upon every grant of an estate of freehold in hereditaments corpo- 
 real, whether of inheritance or for life only. 
 
 Livery of seisin is either in deed or in laio. 
 
 Livery in deed is thus performed : the lessor, or his attorney, to- 
 gether with the lessee, or his attorney, (for this may as effectually be 
 done by deputy or attorney, as by the principals themselves in person,) 
 come to the land, or to the house, and there, in the presence of wit- 
 nesses, declare the contents of the lease on which livery is to be made. 
 Then the lessor, if it be of land, delivers to the lessee, all other per- 
 sons being out of the ground, a ckxi, or turf, or a twig, or bough, 
 there growing, with words to this effect, « I deliver these to you in the 
 name of seisin of all the lands and tenements contained in this deed." 
 But if it be of a house, the lessor must take the ring, or latch of the 
 door, the house being quite empty, and deliver it to the lessee in the 
 same form, as in the case of land : and then the lessee must enter alone, 
 and shut to the door, and then open it, and let in the others. If the 
 conveyance be of divers lands, lying scattered in one and the same coun- 
 ty, and then in the lessor's possession, livery of seisin of any parcel in 
 the name of the residue is sufficient for all ; but if they be in several 
 counties, there must be as many liveries as there are counties ; for if the 
 title to these lands comes to be disputed, there must be as many trials as 
 there are counties, and the jury of one county are no judges of the noto- 
 riety of a fact in another. Also, if the lands be out on lease, though all 
 
 (.<) Co. Lit. ut ante. (6) Ibid. (<•) Co. Lit. 218. 
 
 (</) Cruise's Di^. lie. 3. s. 3. I Inst. 42. a. 3 Rep. 81. b. 96. a. C-'o. Eliz. 316. 1 P. Wm*. 509.
 
 112 Of Terms for Life, and hoxv created. [Chap. VI. 
 
 lie in the same county, there must be as many liveries as there are te- 
 nants ; because no livery can be made in this case, but by the consent 
 of the particular tenant, and the consent of one will not bind the rest. — 
 In all these cases, it is prudent and usual to endorse the livery of seisin 
 on the back of the deed, specifying the manner, place, and time of 
 making it, together with the names of the witnesses (a). 
 
 Livery in law is where the same is not made on the land, but in sight 
 of it only ; the lessor saying to the lessee, « I demise, grant, and to 
 farm let, such land unto you, enter and take possession (If)." Here if 
 the lessee enter during the life of the lessor, it is a good livery, but not 
 otherwise ; unless indeed he dare not enter through fear of his life, or 
 bodily harm ; and then his continual claim made yearly in due form of 
 law, as near as possible to the lands, will suffice without entry ; and 
 such continual claim by tenant for life is sufficient for him in reversion 
 or remainder. This livery in law cannot however be given or received 
 by attorney, but only by the parties themselves (c). 
 
 If a lease be to A. and B. livery to one of the lessees is sufficient (d). 
 A lease for life of any thing whatsoever, whether it lie in livery or in 
 grant, if it be in esse before, cannot begin at a day to come ; for an 
 estate of freehold cannot commence in future (e). 
 
 Therefore if a lease be made habendum from Michaelmas next, or after 
 the death of the lessor, or after the death of J. S. to the lessee for life, 
 this lease would not be good (/). 
 
 So also where one doth make a lease of land to another for years, the 
 remainder to a stranger for life, in this case livery of seisin must be had 
 and made to the lessee for years, or else nothing will pass to him in re- 
 mainder, and yet the lease for years will be good (g). For if a man 
 leases to A. for years, remainder to B. in fee, in tail, or for life, he 
 must make livery to A. (h). 
 
 But livery of seisin is not needful or requisite to be had and made in 
 cases where such estate for life is made or granted of any lands by matter 
 of record ; nor where such estate is created by way of covenant and 
 raising of use, or of exchange, or endowment ; nor where such estate 
 is passed or granted by way of surrender, devise, release, or confirma- 
 tion-, or by way of increase or executory grant ; as when the fee-simple 
 is granted to the lessee for life or years in possession (J). 
 
 Neither is it requisite, or can be made, where any incorporeal heredi 
 taments are granted for life. Nor is it requisite in some cases, where 
 an estate of freehold is made of a corporeal tiling ; as if a house or land 
 belong to an office, and the office be granted by deed, the house or land 
 passes as incident thereunto. So if a house or chamber belong to a 
 corrody (£). 
 
 (a) 2 Bl. Com. 315. (l>) Ibid. 316. u) Gilb. L. of Ten. 
 
 (</) Com. Dig. tit." Feoffment." (P. i.) (e) Shcp. Touch. 272. 2 131. Com. 144. 314. 
 
 (/) Shep. Touch. 272. Cowp. 725. (g) Ibid. 2 10. (/) C0m.Di2.tir. " Feoffment." (B.l.j 
 r«')Shep. Touch. 210. (-6) Ibid.
 
 Sect. I.] Of Terms for Life, and hoxo created, 1 ] 3 
 
 Neither is it needful, where one doth grant to me and my heirs all 
 the trees growing on his ground ; for these will pass without livery of 
 seisin at all (a). 
 
 Though, if a man make leases for three lives, there must be livery •, 
 yet if tenant for life with power to make leases for three lives, makes a 
 lease accordingly, livery is not necessary (b). 
 
 Tear, fit Jcr life or cest tuque vie beyond sea, &c. — By the 19 Car. i.e. 6. 
 Whereas divers lords of manors and ethers have used to grant estates by- 
 copy of court-roll for one, two, or more lives, according to the custom 
 of their several manors, and have also granted estates by lease for one or 
 more life or lives, or else for years determinable upon one or more life 
 ci" lives 5 and it hath often happened that such person or persons for 
 whose life or lives such estates have been granted, ':,ive gon ebeyond 
 the seas, or so absented themselves for many years, that the lessors and 
 reversioners cannot find out whether they be alive or dead, by reason 
 whereof such lessors and reversioners have been held out of possession 
 for many years, after all the lives upon which such estates depended are 
 dead, in regard that the lessors and reversioners, in actions for recovery 
 of their tenements, have been put to prove the death of their tenants 
 when it was almost impossible to discover the same ; for remedy thereof 
 it is enacted, that if such person or persons for whose life or lives such 
 estates have been or shall be granted, shall remain beyond the seas, or 
 elsewhere absent themselves in this realm for seven years together, and 
 no sufficient proof be made of their lives in any action for recovery of 
 such tenements by the lessors or reversioners, in such case they shall be 
 accounted dead, and the judges shall direct the jury to give their verdict 
 accordingly, x. 1, 2. 
 
 Provided, that if any shall be evicted out of any lands or tenements 
 by virtue of this Act, and afterwards such person or persons upon 
 whose life or lives such estate or estates depend, shall return again from 
 beyond seas, or shall on proof in such action as aforesaid be made 
 appear to be living or to have been living at the time of the eviction ; 
 that then and from thenceforth the tenant or lessee who was ousted of 
 the same, his or their executors, administrators, or assigns, may re- 
 enter, re-possess, have, hold, and enjoy the said lands or tenements in 
 his or their former estate, during the life or lives, or for so long term 
 as the said person or persons upon whose life, or lives the said estate or 
 estates depend, shall be living, and shall, upon action brought by them 
 against the lessors, reversioners, tenants in possession, or other persons 
 respectively, which since the said eviction received the profits of the 
 said lands or tenements, recover for damages the full profits thereof, 
 with lawful interest from the time lie or they were ousted and kept out 
 of the same lands or tenements 5 and this as well in the case where the 
 said person or persons upon whose life or lives such estate or estates did 
 
 (a) Shep. Touch, %l\, (/') J X.d. Ray. l66.
 
 1 1 4- Of Terms for Life, and how created. [Chap. VI. 
 
 depend are or shall be dead at the time of bringing such action; as if 
 tliey were then living, s. 5. 
 
 And by the 6 Ann. c. 18. any person who hath or shall have any claim 
 to any remainder, reversion or expectancy, in or to any estate after the 
 death of any person within age, married woman, or other person what- 
 soever, upon affidavit in the court of Chancery by the claimants of 
 their title, and that they have cause to believe that such party is dead, 
 and that his or her death is concealed by such guardian, trustee, bus- 
 band, or any other person, may once a year, if the party aggrieved 
 think fit, move the Lord Chancellor, Keeper, or Commissioners of the 
 Great Seal to order, and they shall order such guardian, trustee, hus- 
 band, or other person, suspected to conceal such person, at such time 
 and place as the Court shall direct, on personal or other due service of 
 such order, to produce and shew to such person or persons (not exceed- 
 ing two) in such order named by the parties prosecuting the same, such 
 minor, married woman, or other persons aforesaid : and if such guard- 
 ian, lie. shall neglect or refuse to produce and shew such infant, &c. 
 on whose life such estate doth depend, according to the said order, then 
 the Couft is required to order such guardian, Is'c. to produce such minor, 
 He. in Court or before commissioners by the Court appointed, at 
 such time and place as the Court shall direct, two of which commis- 
 sioners to be nominated by the party prosecuting such order at their 
 costs and charges; and if such guardian, He. neglect or refuse to pro- 
 duce such infant, lie. in Court or before such commissioners, whereof 
 return shall be made by such commissioners, and be filed in the petty 
 bag office, in either of the said cases the said minor, lie. shall be taken 
 to be dead, and it shall be lawful for any person claiming any right, 
 title, or interest, in remainder, or reversion, or otherwise, after the 
 death of such infant, £sV. to enter upon such lands, &c. as if such 
 infant, He. were actually dead. s. 1. 
 
 And if it shall appear to the said Court by affidavit that such minor, 
 &l\ for whose life such estate is holden, is or lately was at some cer- 
 tain place beyond the seas in such affidavit to be mentioned, the party 
 prosecuting such order may, at their costs and charges, send over one 
 or both the persona appointed by the said order, to view such minor, 
 &~c. and in case such guardian, &c. shall refuse or neglect to produce 
 or procure to be produced to such person or persons, a personal view of 
 such infant, lie. then such person or persons are required to make a 
 return thereof to the Court, to be fded in the petty bag office, and 
 thereupon such minor, 13 c. shall be taken to be dead; and any person 
 claiming any right, 13 c. after the death of such infant, He. may enter 
 upon such lands, lie as if such infant were actually dead. s. 1. 
 
 Provided, that if it shall afterwards appear, upon proof in any action 
 brought, that such infant, lie. for whose life any such estate is holden, 
 were alive at the time of such, order made, that then it shall be lawful
 
 Sect. II-l Of Terms for Years, absolutely, §c. 115 
 
 for such infant, married woman, or other person having any estate or 
 interest, determinable upon such life, to re-enter upon the said lands, 
 &c. and for such infant, married woman, or other person, having any 
 estate or interest, determinable upon such life, their executors, ad- 
 ministrators or assigns, to maintain an action against those who since 
 the said order received the profits of such lands, &c. or their executors 
 or administrators, and therein to recover full damages for the profits so 
 received from the time that such infant, &c. were ousted of possession. 
 
 J - 3- 
 
 Provided always, that if such guardian, trustee, husband, or other 
 
 person, holding or having any estate or interest determinable upon the 
 life or lives of any other person or persons, shall by affidavit or other- 
 wise to the satisfaction of the Court, make appear that they have used 
 their utmost endeavours to procure such infant, t*fc. to appear in the 
 said Court or elsewhere, according to the order of the said Court, and 
 that they cannot procure or compel such infant, izfe. so to appear, and 
 that such infant, &c. is, are, or were living at the time of such return 
 made and filed as aforesaid, then it shall be lawful for such person or 
 persons, to continue in possession of such estate and receive the rents 
 and profits thereof during the infancy of such infant, and the life or 
 lives of such married woman or other person or persons, on whose life 
 or lives such estate or interest depends, as fully as they might have done 
 if the Act had not been made. s. 4 
 
 And every person who, as guardian or trustee for any infant, and 
 every husband seised in right of his wife only, and every other person 
 having any estate determinable upon any life or lives, who after the de- 
 termination of such particular interests, without the express consent of 
 the next immediately entitled, shall hold over and continue in possession 
 of any manors, messuages, lands, tenements, or hereditaments, shall 
 be adjudged trespassers : and the party enticled and their executors and 
 administrators, may recover in damages against every such person or 
 persons so holding over and their executors and administrators, the 
 full value of the profits received during such wrongful possession. j\ j,'. 
 
 Skc'Tiox II, Of Terms for Years, absolutely, or on con- 
 dition; zvherclu of the commencement, duration, and ter- 
 mination of I hem: and of the surrender and renewal 
 
 of Lease's. 
 
 Tenant for term of years shall be, where a man lets lands, tene- 
 ments, or hereditaments to another for a term of certain years ; and 
 every estate which must expire at a period certain and prefixed, by 
 whatever words created, is an estate for years (a). 
 
 Therefore this estate is frequently called a term, terminus, because 
 
 (a) Com. Dig. tit. "Estate." (G. I.) Lit. ;8. 
 12
 
 11(5 Of Terms for Years absolutely, [Chap. VI. 
 
 its duration or continuance is bounded, limited, and determined (a). 
 It is properly called a tern 1 of years and the lease is made for ten, a 
 hundred, a thousand years and the like, as the lessor ana lessee agree ; 
 for the word " term" doth not only signify the limits and limitation of 
 time, but also the estate and interest that doth pass for that time b). 
 
 Such terras are frequently created for particular purposes, as to raise 
 portions, . '• and when the purpose is answered, they attend the in- 
 heritance ; . .., " are created, as has been before mentioned, by way 
 of mort^n^e ' c). _ " n often conveyed in the nature of a lease for 
 
 long terms, as five hunaixJ . '" ^Hev to raise portions, and 
 
 for other purposes, In family settlements, and such as are not accounted 
 leases, but terms to attend the inheritance: no man has a lease, for 
 example, of two thousand years, as a lease, but as a term to attend the 
 inheritance 'd). Half the titles in the kingdom are so ie). 
 
 An estate for a thousand years is only a chattel, and reckoned part of 
 the personal estate '_/"). 
 
 Therefore, if a lease be devised to one, and the heirs male of his 
 body, yet his executors shall have it : for a term is but a chattel, which 
 cannot be entailed, and such devisee may well alien the term to whom 
 he pleases (g). 
 
 If, however, it be limited to attend the inheritance, it may be en- 
 tailed ; though the entail of the inheritance and of the term be by 
 different clauses, or deeds executed at different times (h). 
 
 Commencement cf a Lease for Tears. — With respect to the commence- 
 ment of a lease for years, as It is a mere chattel, it may be made to 
 commence cither in prasenti, or in fuiuro : according to the agreement 
 of the parties ; and the lease that is to commence in fatitro, is called 
 interesse termini, or future interest (i).— A lease for years therefore, may 
 begin at a day to come, as at Michaelmas next, or for three or ten years 
 after, or after the death of the lessor, or of J. S. and is as good as 
 where it doth begin presently (£\ 
 
 So a lease to commence ad festum Annunciationisy after the determi- 
 nation of a former lease, is as good as if it had been a festo, Izc (I). 
 
 A lease to commence after the determination of a prior lease, shall 
 begin presently, if the prior lease was void at law hn). 
 
 So a lease intended to commence in futuroy which misrecites the 
 prior lease on which it depends in a materia.: point, shall begin im- 
 mediately n). 
 
 This rule, that if the former lease be misrecitcd in the date, oV. ami 
 a new lease made, to begin after the expiration of the said recited lease, 
 that such new lease shall begin presently, holds as well in the lease it- 
 
 (a) : B1. Com. 143. (I,) Shep. Touch, c. 14. 267. {:) 1 Salk. 154. 
 
 (J) C >wp. 597. (*) 7 T. R. 725. (/) z BL Com. 1.; 5. (g) Co. R. 10. p. 8-. 
 
 (//) 1 Vent. 194. 5. (/) z Bl. Con. 144. Shep. Touch. ~Jr. (« ; Ibid. 272. 
 (/)Crj. Car. 35.8, tea. , Ibid. (-/' ibid. 400.
 
 Sect. II.] or on Condition, 8jc. 1 j 7 
 
 self, as where the jury find an indenture of lease, whereby it is recited, 
 that the lessor made such former lease of such date and under such rent 
 without finding it in fact, but only by way of recital in the deed, such 
 second lease shall in construction of law be adjudged to begin presently, 
 though in the deed it is limited to begin after the expiration of the first 
 lease so recited ; because the jury do not actually find the first lease, 
 but only a recital of it in another deed, which recital may be false for 
 aught that appears to the Court : and then the second lease shall begin 
 presently, as if no such first lease were at all, since the not finding it 
 effectually is as if there were none such made (a). 
 
 With regard to the date of a lease, it was formerly held that a lease 
 to commence a data included the day of the date, but that a die datus 
 excluded the day b). 
 
 But it has since been held, that the word "from" may mean either 
 inclusive or exclusive, according to the context and subject matter (c) ; 
 though this decision has been much questioned. 
 
 Therefore, where the plaintiff in ejectment declared upon a lease for 
 years, habendum from the sealing and delivery, and declared that the 
 sealing and delivery was 1" Mali, and that the ejectment was the same 
 day ; it was moved in arrest of judgment, that the ejectment could not 
 be supposed the same day, for the lease did not begin till the next day 
 ensuing the sealing and delivery. But the Court disallowed the excep- 
 tion ; for where the lease is to begin from the time of the sealing and 
 delivery, or generally to hold for twenty-one years next following, the 
 ejectment may well be supposed to be the same clay : for the beginning 
 of the lease is presently upon the sealing and delivery ; and therefore 
 such lease shall end at the same time and hour (d). 
 
 A lease " from the day of the date," and " from henceforth," is the 
 same thing (<r). 
 
 Indeed, as to the date, that may be considered either as an impossible 
 date, or an uncertain date, between which the general difference taken 
 in the becks is, that if a lease be made to begin from an impossible 
 date, there the lease shall take effect from the delivery ; because it 
 could not be any part of the agreement between the parties, as from the 
 30th day of February, or the gid day of April next (/*; : — but where the 
 limitation is uncertain, as a lease made the iothday of October, haben- 
 dum from the 20th day of November, without saying what November 
 was meant, whether last- past, or next ensuing, or what otiier Novem- 
 ber, the lease is thereby vitiated, because the limitation was part of the 
 agreement, but the Court cannot determine it, not knowing how the 
 contract was 'g), 
 
 0) Bac. Abr. tit. " Leases." (L. I.) (1) 2 Salk. 413. 1 Ld. Ray. 84. (0 Cowp. 714. 
 
 id) Eac. Abr. tit. " Liases." (L. I.) (?) Cro. Jac. 258. (/) Bac. Abr. ..; ani:. 
 
 (g) 1 Mod. 180.
 
 118 Of Terms for Years absolutely, [Chap. VI. 
 
 So, where a lease is made to begin from the nativity of our Lord 
 last past, without saying from the feast of the nativity, this lease shall 
 begin presently ; because it could be no part of the agreement between 
 the parties that the lease should begin from the nativity itself, which is 
 past so many hundred years ago ; and therefore for this impossibility of 
 relation, the least: shall begin presently (a,:— but if it were to begin 
 from the nativity oi our Lord generally, or next ensuing, omitting the 
 word "feast," Tiuesden was of opinion that such a lease should be void 
 for the uncertainty of the commencement ; but Siderfin in reporting 
 the case, makes a quare, if it shall not begin presently •, and in truth, 
 this seems the most reasonable opinion, for as to impossibility of rela- 
 tion, there is the same in this as there is in the other, and therefore by 
 the same reason, it shall begin presently. The editor of Bacon asks 
 what sound reason can be assigned why it should not commence from 
 the Christmas intended by the parries ? which well applies to the lease 
 to begin from the nativity of our Lord next ensuing ; if not to the 
 former (b . 
 
 Where a lessee for an hundred years made a lease for forty years to 
 B. if he should so long live, and after leased the same lands to C haben- 
 dum for twenty-one years from the end of the term of B. to begin 
 and be accounted from the date of these presents : and the question 
 was, if the lease to be should be said to begin presently, or after the 
 term of B. P the judges were clearly of opinion, that the lease to C 
 should not be accounted from the time of the date, but from the end of 
 the term of B. because by the first words it is a good lease in reversion 
 in that manner, and then it shall not be made void by any subsequent 
 words, or as Coke said, the last words ought to be construed to give an 
 interest as a future interest presently, and the actual possession after 
 the expiration of the first forty years is well granted by the firs: 
 words (r). 
 
 In ejectment the plaintiff declared upon a lease made 14th Jan. 30 
 El'.z. from Christmas before for three years, and upon evidence the 
 plaintiff" shewed a lease bearing dale 13th Jen. the same year, and 
 proved to have been then executed \ and it was moved, for this varia- 
 tion between the declarath n and the evidence, that the jury might be 
 discharged \ but Anderson (J. j. said that the evidence was sufficient to 
 -import the declaration*, for if the lease was sealed and delivered 
 13th 7.7.V. it was then :i lease j^th ^an. quod ceteri justiciarii concesse- 
 runi ('//"). 
 
 A lease may commence at one day, in point of computation, and at 
 another in point oi interest (<•). 
 
 Therefore, a lease " to hold from a tiny past for fifty years then 
 
 (a) Eac.Abv. ...' ,:■.:■. ! i) Sid. 461. /.} Eac. Abr. ui art-:. 
 
 ■i'. S. '■ Ai.:, ■.'••...;'.' L. (.' i>'! ; Bur. i'.");.
 
 Sect II.] or on Condition, §c. 119 
 
 next ensuing, the said term to commence and begin immediately after 
 the determination of an existing lease in the same premises," was not 
 esteemed uncertain at its commencement (a). 
 
 So, a lease habendum to the lessee for his life, which term shall 
 begin after the determination of a previous term for three lives, is 
 good (b). 
 
 So, if an indenture of demise bear teste 25th March, 15 Car. and is 
 delivered the day of the date, and the habendum is from and after the 
 day of the date of these presents, for and during the time and term of 
 seven years from henceforth next and immediately following, fully to be 
 compleat and ended, this lease begins in computation from the delivery 
 of the deed, which was the day of the date, and in interest the next 
 day after the date, and so all the words will have an operation : for it 
 appears that he was not to have the possession till the next day after the 
 date, by the words habendum from and after the day of the date, which 
 excludes the day of the date : but that the seven years should commence 
 by computation from the delivery, viz. from henceforth, which refers to 
 the limitation of the seven years (c). 
 
 In ejectment the plaintiff declared, that J. S. demised to him per 
 quodd' scriptum obligatorium such lands habend? a die datus indenture pra- 
 dicf ; on not guilty pleaded, it was found and adjudged for the plaintiff 
 in Ireland : and it being assigned for error here, that there was no time 
 specified when this lease should begin for it was habend'' a die datus in. 
 dentura pradicf ,■ and no indenture was mentioned before, but only 
 scriptum obligatorium ; yet per Curiam it was resolved, that the writing 
 should be intended an indenture, though improperly called scriptum ob- 
 ligatorium, for every deed obligeth •, or if it should not be intended an 
 indenture, then it begins presently, as if it had been from an impossible 
 limitation, as the 40th of Sept. or such like (d). 
 
 A lease of lands by deed, since the new stile, to hold from the feast 
 of St. Michael, must be taken to mean from new Michaelmas ; and 
 cannot be shewn by extrinsic evidence to refer to a holding from old 
 Afichaelmas : [and therefore a notice to quit at old Michaelmas, though 
 given half a year before new Michaelmas, is bad] (e). 
 
 But all leases for years, whether they begin in prcesenti, or in futuro, 
 must be certain ; that is, they must have a certain beginning, and certain 
 ending, and so, the continuance of the term must be certain ; otherwise 
 they are not good (/). 
 
 Yet if the years be certain, when the lease is to take effect in interest 
 or possession, it is sufficient, for until that time it may depend upon 
 an uncertainty, viz. upon a possible contingent precedent before it 
 
 (.7) 2 Bur. 1090. (1>) Cro. Eliz. 269. ( t ) Bac. Abr. ut ante. 
 
 'J) Ibid. (0 11 East. 312. (/) Shep. Touch. 272.
 
 120 Of Terms for Years absolutely, [Chap. VI. 
 
 begin in possession or interest, or upon a limitation or condition sub- 
 sequent; but in case it is to be reduced to a certainty upon a contin- 
 gent precedent, the contingent must happen in the lives of the parties : 
 and though there appear no certainty of years in the lease, yet if by re- 
 ference to a certainty it may be made certain, it is sufficient (a). 
 
 As, if a le~se be granted for twenty-one years after three lives in 
 being; though it is uncertain at first when that term will commence, 
 because those lives arc in being, yet when they die it is reduced to a 
 certainty (/?). 
 
 So if A. seised of lands in fee, grant to B. that when B. shall pay to 
 
 A. twenty shillings, that from thenceforth he shall hold the land for 
 twenty-one years, and after B. pays the twenty shillings ; in this case, 
 
 B, shall have a good lease for twenty-one years from thenceforth (<r). 
 ,"o if A. grant to B. that if his tenant for life shall die,* that B. shall 
 
 have the lau.i for ten years, this is a good lease ; and if one makes a lease 
 for years after the deatxi of C. if C die within ten years ; this is a good 
 lease if C. die within the ten years, otherwise not (J). 
 
 So, if a lease for years be made of land in lease for life, to have and 
 to hold from the death of the tenant for life ; — or to have and to hold 
 from Michaelmas next after the death of the tenant for life ; — or from 
 Michaelmas next after the determination of the estate of the tenant for 
 life ; these are good leases if). 
 
 Even i; one make a lease to begin after the death of f. S. and to 
 continue until Michaelmas, which shall be anno Domini 1 650, this is a 
 good lease (/). 
 
 So, if a man make a lease to B. for ninety years, to begin after the 
 death of A. on condition to be avoided upon the doing of divers acts 
 by others ; and afterwards makes another loase of the land, habendum 
 after the determination or redemption of the former lease ; it seems this 
 is a good lease and certain enough (g). 
 
 So, if a man have a lease of land for an hundred years, and he make 
 a lease of this land to another, to have and to hold to him for forty 
 years, to begin after his death ; this is a good lease for the whole forty 
 years, if there shall be so many of the hundred years to come at the 
 time of the death of the lessor. So if he grant all his estate, or all his 
 term, or all his interest, in tire premisses of the deed, and then say, to 
 have and to hold the land, cjrV. to the grantee for all the residue of the 
 term of an hundred years that shall be to come at the time of his death ; 
 by this the whole estate and interest of the grantor in the land doth 
 pass presently, by these words in the deed : and if in this case the lessee 
 for an hundred years make a lease of the land, to have and to hold 
 after his death for an hundred years ; this will be a good lease for as 
 
 (a) Shep. Touch. 272. (i) 8 T. R. 463. (.-) Shcp. Touch. 273. 
 
 (rf) Ibid. ' (*)Ibi<L (y) Ibid. (g) Ibid. 37* 
 
 3
 
 Sect. II.] or on Condition, fyc. \o\ 
 
 many of the first hundred years as shall be to come at the time of his 
 death (c). 
 
 So, if A. doth make a lease of land to B. for so many years as B. 
 hath in the manor of Dale, and B. hath then a lease for ten years in 
 such manor ; this is a good lease for ten years (£). 
 
 So, if a lease be made during the minority of J. S. or until J. S. 
 shall come to the age of twenty-one years ; these are good leases ; and 
 if J S. die before he come to his full age, the lease is ended. So, if a 
 man make a lease for twenty-one years, if J. S. live so long ; or if 
 the coverture hetween J 5 and D S. shall so long continue ; or if 
 '/. S. shall continue to be parson of Dale so long; these and such like 
 leases are good (c) 
 
 If one makes a lease to A. for twenty-one years, and after makes ano- 
 ther lease to B. for years, to begin from the end and expiration of the 
 aforesaid term of twenty-one years demised to A. ; and then the lease to 
 A. is determined, either by an express surrender, or by an implied 
 surrender in law, as by A."s acceptance of a new lease for life from the 
 lessor, the lease to B shall begin presently ; but if the lease to B. had 
 been to begin after the end and expiration of the aforesaid of twenty-one 
 years, there the lease to B. should not begin upon the surrender, for- 
 feiture, or other determination of the first term to A. till the twenty- 
 one ye^rs actually run out by effluxion of time : the reason of which 
 difference is, that in the first case the " word term" comprehends as 
 well the estate or interest in the land, as the time for which it is de- 
 mised and therefore, the second lease being limited to begin from the 
 end and expiration of the aforesaid term of twenty-one years, when- 
 ever the term is determined, the lease to B shall begin ; but in the 
 other case the lease to B is not to begin till after the end and expira- 
 tion of the twenty-one years, which cannot be ended but by effluxion 
 of time (d). 
 
 So, it was held that a proviso in a lease for years to A. to re-enter 
 if lessee died within the term, is a mere condition, and not a limita- 
 tion ; and a second lease habendum cum post mortem sive per mortem sur- 
 sum reddltionem sen forisfacturam pradicti A vacari acciderit, is good, 
 and commences when the first term is determined by effluxion of 
 time (e). 
 
 So, if one makes a lease to another for so many years as J. S. shall 
 name, this at the beginning is uncertain ; but when J. S. hath named 
 the years, (in the life-time of the lessor), this asce tains the com- 
 mencement of continuance of the lease accordingly. — But if the lease 
 had been made for so many years as the executors of the lessor should 
 name, this could not be made good by any nomination ; because to 
 
 (a) Shcp. Touch. 273- (t>) Ibid. 374. (0 Ibid, 
 
 (0 Bac. Abr. tit. " Leases,"' (L. I.) (.-) Cro. Jac. 71,
 
 122 Of Terms for Years absolutely, [Chap. VI. 
 
 (very lease there ought to be a lessor and lessee ; and here the nomination 
 which ascertains the commencement not being appointed till after the 
 death of the lessor, makes the lease defective in one of the main parts 
 of it, viz. a lessor, and therefore of consequence must be void ; which 
 is also the reason that in the first case the nomination ought to be made 
 in the life-time of the lessor, and not by J. S. after his death, for then 
 it will be void (a). 
 
 A lease in reversion of several parcels of land, made to commence on 
 the happening of several contingencies, shall take effect and commence 
 respectively as those contingencies happen (b). 
 
 In a case where B. had a lease for twenty-one yearns of copyhold 
 lands to commence after the determination of the estate which A. at 
 that time had therein, and the widow of A. being entitled to her free- 
 bench, happened to outlive her husband twenty- one years, it was held 
 by the Lord Chancellor, that the estate of the wife was only an ex- 
 crescence of her husband's estate, which did not determine till the wife's 
 death, at which time the lease made to B. should commence and continue 
 for twenty-one years (c). 
 
 A lease for years, reserving rent "after the rate" of 18/. a year, is 
 void for uncertainty (d). 
 
 As to leases void for uncertainty in respect to the time of their com- 
 mencement, if A, be seised of land in fee, and lease it to B. for ten vears, 
 and it is agreed between them that B. shall pay to A. 100I. at the end 
 of the said ten years, and that if he do so and shall pay the said 1 oo/. 
 and ioo/. at the end of every ten years, that then the said B. shall 
 have a perpetual demise and grant of the premises from ten years to ten 
 years continually following extra memoriam hominum, &c. ; this, although 
 it be a good lease for the first ten years, yet it is void for all the rest for 
 uncertainty (e). 
 
 So, if the lessor grant the land to another, to have and to hold to him 
 for and during all the residue of the term of one hundred years that 
 shall be to come at the time of the death of the grantor, this is void for 
 uncertainty: had he granted all his estate, or term, or interest, it had 
 been otherwise (f). 
 
 Ho } it is said, if a lease be made to A. for eighty years, if he live so 
 long, and if he die within the said term or alien the premises, that then 
 his estate shall cease ; and then he doth further by the same deed grant 
 and let the premises for so many years as shall remain unexpired after 
 the death of A. or alienation, to B for the residue of the said term of 
 eighty years, if he shall live so long : in this case the lease to B. is 
 void-, for after the death of A. the term is at an end ; but if he say for 
 the residue of the eighty years, it is otherwise (g). 
 
 (<j) Bac. Abr. tit. " Leases," (L. 2.) (b) Cro. Eliz. 199. 
 
 (*) ^ac. Abr. ut ana. id) 4 Mod. 78. (t) Shep. Touch. 273. 
 
 (/) Ibid. 374. (?) Ibid. 
 
 6
 
 Sect. II.] or on Condition, fyc. i25 
 
 So, a lease made to another until a child in its mother's belly shall 
 come to the age of twenty-one years, is not good (a). 
 
 So, if A. make a lease to B. for so many years as A. and B. or either 
 of them shall live, not naming any certain number of years, this cannot 
 be a good lease for years (b). 
 
 So, if the parson of Dale make a lease of his glebe for so many years 
 as he shnll be parson there \ this is not certain, neither can it be made 
 so by any means j and yet if a parson shall make a lease from three 
 years to three years so long as he shall be parson, this is a good lease for 
 six years, if he continue parson so long, and for the residue void for 
 uncertainty. Vide post 172 (c). 
 
 So, if I make another a lease of land, until he be promoted to a 
 benefice ; this is no good lease for years, but void for uncertainty (d). 
 
 So, if I have a piece of land of the value of 20/. per annum, and I 
 make a lease of it to another, until he shall levy out of the profits thereof 
 100/. this is no good lease for years, but void for uncertainty — But if I 
 have a rent-charge of 20/. per annum, and let it to another until he shall 
 have levied 100/. this is a good lease for five years (e). 
 
 Note. —In all these cases of uncertain leases made with limitations 
 as aforesaid, as until such a thing be done, or so long as such a thing 
 continue, &c. if livery of seisin be made upon them, they may be good 
 leases for life, determinable upon these contingencies, albeit they be 
 no good leases for years (f). 
 
 In leases for years, or other chattel interests, livery of seisin is not 
 necessary ; but instead thereof an actual entry is requisite, to vest the 
 estate in the lessee : for to many purposes he is not tenant for years 
 until he enter (g). 
 
 Before entry the lessee hath but an interesse termini, an interest of a 
 term, and no possession ; and therefore a release, which enures by way 
 of enlarging an estate, cannot work without a possession, for before pos- 
 session there is no reversion. Such is the case of leases at common 
 law ; for if it be so framed as to be a bargain and sale under the sta- 
 tute, the possession is immediately executed in the lessee, so that no 
 entry is necessary (/.>). 
 
 Yet if a tenant for twenty years in possession make a lease to B. for 
 five years, and B. enter ; a release to the first lessee is good, for he had 
 an actual possession, and the possession of the lessee is his possession. 
 80 it is if a man make a lease for years, the remainder for years, and 
 the first lessee doth enter, a release to him in the remainder for years 
 is good to enlarge his estate. A release therefore that enures by en- 
 largement cannot work without a possession ; but an actual estate in pos- 
 session is not necessary, for a vested interest suffices for such a release 
 
 !» Shep. Touch. 274. (*) Il)id - 2 *5- (0 Ibid - 
 
 0') Ibid. (<0 Ibid. (/) Ibid. 
 
 [g) 2B1. Com. 314. Ibid. 144- Co. Lit. 46. h. (A) Ibid. 270. & e. a
 
 124 Of Terms for Years absolutely, [Chap. VI. 
 
 to operate upon. — But lessee may release the rent reserved before entry, 
 in respect of the privity (,/). 
 
 Neither could the lessor grant away the reversion by the name of 
 the reversion before entry, unless the lessee attorned, which is now un- 
 necessary (/•). 
 
 If a man make a lease for a thousand years, this lease is perfect by 
 the delivery of the deed without any livery of seisin (c). 
 
 The interest, interesse termini, which the lessee hath before entry, \\ 
 grantable to another ; and although the lessor die before the lessee 
 enter, yet the lessee may enter into the lands : so, if the lessee die be- 
 fore he enter, yet his executors or administrators may enter, because he 
 presently by the lease hath an interest in him j and if it be made to two, 
 and one die before entry, his interest shall survive (d). 
 
 This interesse termini is in the lessee, whether the lease be made to 
 commence immediately, or at a future day (<?). 
 
 This entry by the tenant himself serves the purpose of notoriety, as 
 well as livery of seisin from the grantor could have done ; which it 
 would have been improper to have given in this case, because that so- 
 lemnity is appropriated to the conveyance of a freehold (f). 
 
 When the leasee thereiore has actually so entered, and thereby ac- 
 cepted the grant, the estate is then and not before vested in him, and 
 he is possessed, not properlj of the land, but of the term of years; the 
 possession or seisin of the land remaining still in him who hath the 
 freehold (g). 
 
 Duration of a Lease for Tears. — As to the certainty of leases for years 
 in respect of their continuance or duration, this ought to be ascertained 
 either by the express limitation of the parties at the time of the lease 
 made, or by a reference to so;.~.e collateral act, which may with equal 
 certainty measure the continuance thereof, otherwise it will be void {If. 
 
 If a man makes a lease for years, without saying how many, this shall 
 be a good lease for two years certain ; because for more there is no cer- 
 tainty, and for less there can be no sense in the words (/'). 
 
 If a man leases lands for such a term as both parties shall please, 
 this is but a lease at will ; because what that term will be is utterly un- 
 certain, and the pleasure of the parties seems to be limited to attend 
 the continuance as well as the commencement and first fixation there- 
 of if). 
 
 So, if a parson makes a lease for a year, ami so from year to year as 
 long as he shall continue parson, or as long as he shall live ; this is a 
 lease for two years at least, if he lives and continues parson so lon^ ; 
 and after the two years, or at most after three years, but an estate at 
 will for the uncertainty, unless livery be made (/). 
 
 (a) Co. I.':;. 270. fc n. 3. (/) Ibid. 46. b. 3. Jon. 8. (r) Shop. Touch. 2H. 
 
 (.</) Co. Lit. 46. b. 0) Com. Dig. tit. " Estates," (G. 14.) (/) 2 Bl. Com. 3.14. 
 
 ( X ) Hid. 144. (7.) Bac. Abr. tit, " Leasw," (L. 3.) (i) Ibid. 
 
 (i) Ibid, (/)Ibii
 
 Sect. II.] or on Condition, <§-c. ]25 
 
 A parson made a lease of his rectory to one for three years, and at 
 the end of those three years, for other three years, and so from three 
 years to three years, during the life of the lessor ; the whole Court held 
 it clearly a lease for twelve y.ars ; but by Dcdderidge, if the lease had 
 been for three years, and so from three years to three years, and so 
 from the said three years to three years, this had been but a lease for 
 nine years ; because the words " from the said three years'' tie up the 
 relation retrospectively to the three years last mentioned, which make in 
 all but six years, and then there are but three years more added, whieh 
 make the whole but nine years ; and for the words " during the life of 
 the lessor," they cannot enlarge it to any further certain number of 
 years, by reason of the uncertainty of the lessor's life, and therefore 
 beyond the twelve years, or nine years, it amounts only to a lease at 
 will, unless livery were made, which must necessarily pass a freehold 
 determinable upon the lessor's death (<?). 
 
 Yet in one book, where a lease was made for three years, and after 
 the end of those three years, for other three years, and so from 
 three years to three years, during the life of the lessor, this was held 
 to be only a lease for nine years-, because the words " and so from three 
 years" shall be referred to the three years last mentioned, for otherwise 
 these words would exclude the three years next after the six years, and 
 make the three last years to begin after nine years, and so make a chasm 
 in the lease by shutting out the three years next after the six years, so as 
 for the three last years it should be only a future interest : which case 
 seems to be of a new stamp, and to thwart the preceding case as to the 
 resolution of it being a lease for twelve years ; and there Jones and 
 Wild held, that a lease from three years to three years, was but a lease 
 for three years to commence in future* (b). 
 
 Cne made a lease for three years, and so from three years to three 
 years until ten years be expired ; this was resolved to be a lease but for 
 nine vears, and that the odd year should be rejected, because that can- 
 not come to fall within any three entire years according to the limitation, 
 which in this case are to be taken altogether as one year, or else so much 
 of the limitation as cannot come within that description must be 
 rejected ; and this seems to agree with Brook [tit. Leases,} and Plo-zvde;/, 
 [Reports, 273, 522. a.~\ who in general hold a limitation in that manner, 
 from year to year, for forty, fifty, or one hundred years, to be a good 
 lease for the whole term, because there is no such break of an odd 
 year at the latter end of the lease, as there is in the other case (c). 
 
 A parol demise to hold from year to year, and so on as long as it- 
 shall please both parties, is a lease for two years, and after every sub- 
 sequent year begun, is not determinable till that year be ended (d). 
 
 If therefore A. demise lands to B. for a year, and so from year to 
 
 (a) Bac. Abr. tit. " Leases " (L. 3.) (i) Ibid. 3 Kcb. ~Cz. 76?, 
 
 (c) Bac. Abr. ut arte; H vL'i. Z Show. J I. 
 
 (J) 2 Salk, 414.Salk.313. :■ 1 V/ils. :Cz. 4 Bs.'AR. 33.
 
 126 Of Terms for Years absolutely, [Chap. VI. 
 
 year; this is not a lease for two years and afterwards will, but it is a 
 lease for every particular year, and after the year is begun, the defend- 
 ant cannot determine the lease before the year is ended. But in a lease 
 at will, the lessee may determine his will after the payment of his rent 
 at the end of a quarter, but not in the beginning, lest his lessor should 
 lose his rent. In that case, therefore, the question seems to have been, 
 whether after the third year commenced, the lessor was entitled to the 
 whole year's rent, and Holt held that he was, because the tenant could 
 not determine the estate in the middle of the year; and the expression 
 " for every particular year does not mean that such a lease operates as a 
 distinct demise for each year separately, but that when any year has 
 commenced, it is good for the whole of that year (a)." 
 
 So, where A. agreed by parol to sell an estate to B. on certain terms 
 provided B. would continue C. his tenant, " not for one year only, but 
 from year to year" (C having just before been let into possession under 
 a contract for the purchase of the estate, which he had failed to pay for 
 in time, and had therefore forfeited his deposit ;) and A. thereupon 
 agreed to take C.'s forfeited deposit as part of the purchase-money : A. 
 and B. afterwards reduced their agreement respecting the purchase into 
 writing, in which no notice was taken of the stipulation concerning C's 
 tenancy, yet it was held that this stipulation, being collateral to the 
 written agreement, was binding upon B and that the agreement 
 operated as a tenancy for two years certain at least, though a rent was 
 not then mentioned, but was to be settled afterwards; and that the 
 tenancy could not be put an end to at the expiration of the first year by 
 six months' notice to quit (b). 
 
 This point is well illustrated by the subsequent case, which was sent 
 by the Lord Chancellor to the Court of C. P. for the opinion of that 
 Court (c). 
 
 The defendant, John Spurrier, on the 14th Oct. 179 1, entered into 
 the following agreement with one William Atkinson. 
 
 " London, i/\th October, I 79 1. 
 
 " Memorandum. I, William Atkinson of Saint Olaves, Southward, 
 have this day agreed to take on lease of John Spurrier the dwelling- 
 house and premises now occupied by him in Old Broad Street, together 
 with a bed room now in the possession of Mr. Amory, and which bed 
 room is over the one now used by the said John Spurrier himself, to 
 hold for seven, fourteen, or twenty-one years, at the yearly rent of one 
 hundred and fifty pounds, payable half-yearly, including all taxes which 
 are to be paid by the said John Spurrier, the term and rent to commence 
 from Christmas next, the usual fixtures, carpets and floor-cloths fitted 
 to the floors, to be taken and paid for at a fair valuation : by the said 
 William Atkinson. An outside door to be put to the kitchen entrance of 
 the house at the cxpence of the said John Spurrier." And on the back 
 
 !» 1 T. R. 380, Salk. 414. b. (/■) 4 East's R. 31. (0 3 Bos. and Pul. 399.
 
 Sect. II. J or on Conditio??, Qc. [oy 
 
 of the said agreement was the following memorandum : " I agree to let 
 the premises mentioned on the other side hereof upon the terms and 
 conditions expressed therein : John Spurrier." The said W. Atkinson 
 accordingly took possession of the premises and afterwards disposed his 
 interest therein to the plaintiff Richard Daim, who took possession 
 thereof and paid the rent. — The defendant on the 20th of June, 1798, 
 duly gave notice to the plaintiff to quit the premises at Christmas then 
 next, which the plaintiff refused to do, alledging that the defendant 
 had no right to determine the agreement at the expiration of the first 
 seven years, but that the tenant only had that right; in consequence of 
 which, the defendant, in Hilary Term, 1 799, duly commenced an action 
 of ejectment in K, B. in order to obtain possession; upon which the 
 plaintiff and W. Atkinson in the same term filed a bill against the de- 
 fendant for a specific performance of the said agreement, and that the 
 defendant might be compelled to execute a lease of the premises to them, 
 or one of them, for twenty-one years. 
 
 The question for the opinion of the court was, whether upon the 
 legal construction of the said agreement, the defendant had a right to 
 determine the term of twenty-one years, thereby agreed to be granted 
 at the end of the first seven years ? — The opinion of the Court was 
 delivered by 
 
 Lord Alvanley, C, J. This question turns upon the legal construc- 
 tion of the agreement stated in the case, It is to be observed, that the 
 agreement is not an offer on the part of the lessee to take a lease for 
 seven, or a lease for fourteen, or a lease for twenty-one years, but it is 
 an offer to take a lease with an habendum, as stated by the lessee in his 
 proposals, viz, to hold for seven, fourteen, or twenty-one years. The 
 lessor having assented to let the premises upon the terms and conditions 
 proposed, it must now be taken as if a lease had been actually granted 
 containing such an habendum as that stated in the proposals. It is for 
 us, therefore, to determine what is the legal construction of such an 
 habendum in a lease. It has been contended that where the terms are 
 not defined, either positively or by any circumstance, but an alternative 
 is stated which cannot be made certain without the option of one of 
 the parties, the lease is determinable at the option of either. There 
 seems to be great authority for such a proposition, for undoubtedly 
 Lord Kenyon and Mr. J. Buller both intimate in the case of Goodright 
 v. Richardson and Hall, [3 T. R. 462.] that the option would be in 
 either party. But it must not be forgotten (for I wish it to be under- 
 stood that, had the judgment of the Court in that case proceeded upon 
 the point alluded to, it would probably have guided our judgment in 
 the construction of such doubtful words as those which occur in this 
 case) that Lord K. and Mr J. B. only threw out their opinion obiter ; 
 had it been otherwise, there are no authorities, particularly that of 
 Lord Kenyan, upon a point arising ou'c of real property, to which I
 
 128 Of Terms for Years absolutely , [Chap. VI. 
 
 should be more disposed to defer. The lease in that case was for three, 
 six, or nine years, determinable in the year 1788, 1791, and 1794, and 
 the construction put upon that lease was that it gave an option to either 
 party, but that such option must be exercised with reasonable notice pre- 
 vious to the expiration of any of the terms; and as reasonable notice had 
 not been given, the Court held that the lease was not determined. With 
 respect to the case of Ferguson v. Cornish there referred to [2 Bur. 1034] 
 it is surprising that any doubt should have arisen ; and indeed it does 
 not appear that any doubt was entertained by the Court. A lease hav- 
 ing been granted for seven, fourteen, or twenty -one years, and an 
 action of covenant having been brought against the lessee during the 
 first seven years, it was contended by the lessee that it was no lease at 
 all. according- to the old doctrine; that a lease uncertain in its com- 
 mencement or duration was void. Lord Mansfield held that, at all 
 events, it was a good lease for seven years. These two cases decide 
 nothing with respect to the point now before the Court. It remains, 
 therefore, for us to consider, notwithstanding the opinions thrown out 
 in these two cases, Whether, according to the construction which 
 deeds between lessor and lessee have received, the power of determining 
 the lease in this case must not be confined to the lessee ? Much is to be 
 found in the books relative to the construction of deeds which contain 
 covenants in the alternative ; from all which the rule appears to be per- 
 fectly clear, that if a doubt arise as to the construction of a lease be- 
 tween le. sor and lessee, the lease must be construed most beneficially 
 for the latter. It is laid down in the books that if a man covenant to 
 do one of two things, and he does either, the covenant is not broken. 
 Thus in 1 Roll, Abr. tit. Condition "Kl.pl. 3. Jo, 446. it is said that if a 
 condition be that the obligor shall enfeoff a man of lands in D. or S. 
 upon request, the obligor has his election of which of the twelve shall 
 enfeoff him : So, in pi. 4. it is laid down, that if the condition be that 
 the obligor shall pay 2c/. or a pint of wine upon request, he has his 
 election. This election, however, is said to depend upon which of the 
 two parties to the contract is to do the first act. Therefore, if a man 
 make a grant in the alternative, and the grantee enter into possession, 
 the grantor is no longer at liberty to exercise an option. So, if A. says 
 to B. I grant you a horse out of my stable, he puts it in the power of 
 B to take which horse he shall think proper. In the bishop of Bath's 
 case, 6 Co. 35 /•. it was resolved, that the construction of law as to the 
 commencement of leases should be taken strongest atrainst the lessor 
 and most beneficially for the les?ee. Another strong authority to this 
 effect is Sir Roland Heywood's case, 2 Co. 35 a. where one having de- 
 mised, granted, bargained, and sold certain lands, and the question 
 being, Whether the grantee should take by demise or by bargain and 
 sale; it was held that the grantee had his election. In Dyer 261. b. 
 the court of C, P. held, that where a lease of premises, which had
 
 Sect. II.] or on Condition, §c. }°g 
 
 been granted for thirty-one years, was granted to a new lessee a die con- 
 fectionis prasentium termino pradicto finito usque ad Jinem termini 31 annorum 
 tunc immediate scquentium, that the terms should commence in possession 
 from the end of the former term, and not from the making of the deed, 
 and the reason which they give for the opinion is, that every grant 
 shall be expounded most favourably for the grantee, and if the lease 
 were to commence from the making of the deed the lessee would have 
 only four years. It is true that Brcivn doubted upon this point and 
 that the court of K. B. came to a different decision. But although the 
 court of K. B. might not think proper to go so far in favour of the 
 lessee as the court of C. P. did, yet it does not follow that they were 
 disposed to deny the rule of construing leases favourably for the lessee, 
 for where two periods are mentioned in a deed, from which the com- 
 mencement of lease is to take place, the legal construction is that it 
 shall commence from which of the two periods shall first happen, and 
 so it was determined in Dyer 312. b. in marg. This principle of ex- 
 position is sound ; but it is not applicable to this case, which does not 
 depend upon the priority of different periods, but upon the question, 
 In whom the option of deciding upon the alternative is vested ? The 
 lease agreed for in the present case was for seren, fourteen, or twenty- 
 one years. An option, therefore, was certainly intended. If then the 
 principle be just, that a lease is to be construed most favourably for the 
 lessee, why are we to determine in this instance that the option is in 
 the lessor r It indeed a provision had been inserted that the lease 
 should be determinable at the option of either party, the lessor would 
 have been entitled to take advantage of it : but where no such provision 
 is inserted, the true construction seems to be that the lessee is entitled 
 at his option, to take that term which is most beneficial to himself. 
 Notwithstanding, therefore, the opinions which have been referred to 
 of Lord Kenxon, and Mr. J. Bidder, we think that where no custom of 
 the country exists upon the subject, the principle of construing deeds 
 between lessor and lessee requires us to hold, that where a grant is 
 made in an alternative which cannot be determined by intrinsic circum- 
 stances, the option is left in the lessee : and we shall certify according- 
 ly. There is a case of Keble v. Hall, Lift. 363. 370. which bears very 
 strongly upon this subject. In that case, a lease having been granted 
 to A. and B. for forty years if they and three others, or any of them, 
 should so long live, a second lease was granted "habendum from the 
 administration [probably misprinted for annunciation,! which should 
 be in the year 1568, or from and after the surrender, forfeiture, or 
 ether determination of the said lease to A. and B." and some of the 
 persons for whose life the first lease was granted having survived the 
 year 1568, a question arose when the secend lease ought to commence. 
 The case indeed does not appear by the report to have been finally de- 
 termined, but the Court stronplv inclined to think that the lessee should
 
 130 Of Terms for Years absolutely, [Chap. VI. 
 
 have his election, because that construction ought to be adopted which 
 is most favourable for lessees : 
 
 A lease " for seven, fourteen, or twenty-one years, as the lessee 
 shall think proper," upon which the lessee enters and continues in pos- 
 session, is undoubtedly a good lease for seven years, whatever may be 
 its validity as to the two other eventual terms of fourteen and twenty- 
 one years (<?'. 
 
 So, a lease in 1785, for three, six, or nine vears, determinable in 
 1788, 1 79 1) and 1704, is a lease for nine years determinable at the 
 end of three or six years, by either of the parties, on giving reasonable 
 notice to quit (b). 
 
 An agreement to grant a lease for seven, fourteen, or twenty-one years, 
 without saying at whose option, gives the option to the lessee alone (c). 
 
 One lets a stable for a week for Ss. and so from week to week at 8x. a 
 week, as long as both parties pleased ; this was held at most but a lease 
 for three weeks certain, and for the residue at will ; so this the lessee 
 at the end of the three weeks was not punishable for negligently keep- 
 ing his fire, that being only an involuntary waste, wherewith lessee at 
 will is not chargeable (d). 
 
 Where a lease is to two for forty years, if they so long live, Rolle 
 [in his reports, 309, 310.] seems to think that this does not determine 
 by the death of one of them, because it is an interest in both, which 
 shall survive ; but the other books are against it ; because their life is 
 but a collateral condition and limitation of the estate, which therefore 
 is broken when one dies : — tins differs therefore from a lease to two 
 persons for their lives, for that gives an estate to both for their lives, 
 and both have an estate of freehold therein in their own right-, which 
 consequently cannot determine by the death of one of them, for then the 
 other could not be said to have an estate for his life, as the lessor at first 
 gave it (c). 
 
 So, where one made a lease for forty years, " if his wife or any of 
 their issue should so long live :" it was adjudged that the lease was not 
 determined by the death of one of them, but should continue till all 
 were dead by reason cf the disjunctive or, which goes to and governs 
 the whole limitation : but if the words had been " if his wife and issue 
 should so long live," there clearly, by the death of any of them within 
 the forty years, the term had been at an end, by reason of the copu- 
 lative and, which conjoins all together, and makes all their lives jointly 
 the measure of the estate/). 
 
 A lease was for twenty-one years, if the lessee lived so long and con- 
 tinued in the lessor's service ; the lessor dies ; and, Whether the term 
 was determined ? was the question. Three of the justices held, that 
 
 (<?) 2 Bur. 1034. (i) 3 T. R. 46:. (c) 17 Ves.J. 363. 
 
 (_') Bac. Abr. tit. « Leases" (L. 3.) (-■) Ibid. (L. 4.) 
 
 (f) C:o. Eliz. 27c. Co. Lit. Z-j. :■
 
 Sect. II.] or on Condition, §c. 131 
 
 the lease continued •, for there is not any laches in the lessee that he did 
 not serve, but it is the act of God that he did not serve any longer : 
 but the fourth was strongly against it •, because it is a limitation to the 
 estate, that it shall not continue longer than he serves (a). 
 
 If a person, having an interest for three years only, make a lease for 
 five years, it would be good for the three years : for where an authority 
 is given to any one to execute any act, and he executes it contrary to 
 the effect of his authority, this is utterly void; but if he executes his 
 authority and withal goes beyond the limits of his warrant, this is void 
 for that part only wherein he exceeds his authority (b). 
 
 If a lease be made for life or years to A. and afterwards the lessor 
 makes a lease for years to B. regularly, this concurrent kase to B. is a 
 good lease at least for so many years of the second lease as shall be to 
 come after the first lease is determined according to the agreement : as 
 if the first lease to A. be for twenty years, and the second lease to 
 B. be for thirty years, and both begin at one time, in this case the se- 
 cond lease is good for the last ten years (r). 
 
 If the lord of a manor may by the custom grant copyhold estates "to 
 three persons habendum to them successively, as they shall be named 
 and not otherwise," a surrender to A. for his own life, and for the 
 lives of B. and C. is warranted by the custom (d . 
 
 Although, as hath been said, a lease for years must have a certain 
 beginning, and a certain end, yet the continuance thereof may be un- 
 certain, for the same may cease and revive again in divers cases. As 
 if tenant in tail make a lease for years reserving 20s. and after take a 
 wife and die without issue ; now as to him in the reversion the lease 
 is merely void : but if he endow the wife of tenant in tail of the land 
 (as she may be though the estate tail be determined) now is the lease as 
 to tenant in dower v who is in of the estate of her husband) revived 
 again as against her, for as to her the estate tail continues, for she shall 
 be attendant for the third part of the rent-services, and yet they were 
 extinct by act in law (e). So it is, if tenant in tail make a lease for 
 years as before, and die without issue, his wife ensient with a son, and 
 he in the reversion enter, against whom the lease is void ; but after the 
 son be born the lease is good, if it be made according to the statute, 
 and otherwise is voidable. So, if tenant in fee-simple take a wife, and 
 then make a lease for years, and die, and the wife is endowed ; in this 
 case she shall avoid the lease, but after her decease the base shall be in 
 force again ! f). 
 
 So, a rent- charge for life is suspended by the acceptance of a lease 
 of the land ; and by the surrender of such lease, revives again [g). 
 
 Termination of a Lease for Tears. — With respect to the termination of 
 
 (a) Cro. Eliz. 643. (i) Bull. N. P. 106. Ccmp. Copy. 93. (c) Shep. Touch. 275. 
 
 (J) 6 Mod. 73. (c) Co. Lit. 46. (/) 31 H. 8. c 28. Shep, Touch. 275. 
 
 (j-) Cro. Car. 101. 
 
 Ka
 
 1 32 Of Terms for Years absolutely, [Chap. VI . 
 
 a lease, a demise may be determined by either of these circumstances 
 ecc irring ; namely, by the period expiring during which the premises 
 were leased, which may take place upon the contingency, if there be 
 any, happening ; by surrender to the lessor ; by cancellation of the 
 deed [de quo quzre ?} ; by condition within the deed or indorsed there- 
 on ; or by forfeiture for the breach of some contract express or im- 
 plied 
 
 I. Terminaihn by Effluxion of Time. — The common means whereby a 
 lease determines, is by the period expiring for which the lands, 'iSc. 
 were demised ; or upon the contingency happening that was to create, 
 as it were, such period ; as where a lease is made during the minority 
 of J. S. when J. S. comes to his full age the lease terminates ; or if he 
 die before, it is ended. 
 
 Where a lease is expired, the tenant still continues liable, unless lie 
 deliver up complete possession of the premises, or the landlord accept 
 of another in his room (Vi). 
 
 The circumstance of the landlord signing a notice, by which a 
 tenant, whose lease is expired, orders his under-tenant to pay his rent 
 to him in future, is not evidence of his agreement to accept him as his 
 tenant, unless it be proved that he knew the contents of the notice (b). 
 2. Termination by Aforgcr.— Another means, whereby a lease for years 
 may be defeated, is by way of merger, that is, when there is an union 
 of the freehold or fee and term of years in one person at the same 
 time ; in which case the greater estate merges or drowns the lesser be- 
 cause they arc inconsistent and incompatible (c). 
 
 Thus, if a lease for years be made to commence after the death of 
 A. and the grantee of the inheritance afterward makes a lease for 
 years to B. and then the lessee of the future interest assigns to the 
 grantee of the inheritance, the future interest is drowned in the in- 
 heritance («). 
 
 So, where a fee-farm rent is purchased in, by the person that is 
 seised in fee of the lands out of which it issues, it is merged in the 
 inheritance (e). 
 
 Lord Coke lays it down for a general rule, that one cannot have a 
 term for years in hi? own right and a freehold in autcr droit, but that 
 his own term shall drown in the freehold •, and puts these cases : If a 
 man, lessee for years, intermarries with the feme lessor, this shall 
 merge and drown his own term for years •, but if a feme lessee for years 
 intermarries with the lessor, her term is not thereby drowned ; because, 
 says he, one may have a term of years in auter droit, and a freehold 
 in his own right, as the husband in this ease shall have, oo if lessee 
 for years rnake the lessor his executor, the term is not thereby drowned, 
 because the lessor hath the term in autcr droit. — So also, if the master 
 
 (a) ' Esp. R. J7. (J)!bitl. Oj Bac.Abr. tit. " Lcas^" fR.) 
 
 \nj Cro. J.ic. 6*9 (0 xo M,d. 5:;. 6-
 
 Sect. II. ] or on Condition. Sec, 133 
 
 of an hospital, being a sole corporation, by the consent of his brethren 
 makes a lease for years of the possession of the hospital, and after- 
 wards the lessee for years is made master, the term is drowned causa qua 
 supra ; but if it had been a corporation aggregate, the making of the 
 lessee master had not extinguished the term, no more than if the lessee 
 had been made one of the brethren : yet if a lessee for years of the glebe 
 be made parson, the term is merged by reason of the union of the term 
 and freehold in him to his own right and use, though he has them in 
 several capacities (a). 
 
 But this rule seems to admit of divers exceptions : for if a husband 
 be possessed of a term in his own right, and the inheritance descend to 
 ins wife, the term will not merge by his descent in outer droit ; for it 
 was by act and operation of law (b). So if a lease had been made upon 
 trust, for the advancement of such a woman, and the lessee had after 
 intermarried with that woman, and then the inheritance had descended 
 to her ; this, it was agreed, would not merge the term, but he might 
 clearly dispose thereof to the purpose intended ; because he had it in 
 auter droit and to another use. — So, it seems to be agreed, that if a man 
 being possessed of a term for years in right of his wife purchases the 
 inheritance, that by this the term for years, though in right of his wife, 
 is merged and extinct, because the purchase was the express act cf 
 t\\c husband, and therefore amounts in law to a disposition of the term, 
 by reason of the merger consequent thereupon : but a bare intermar- 
 riage of the feme termor with the reversioner will not work a merger 
 of the term, because by the intermarriage the term is cast upon the 
 husband by act of law, without any concurrence or immediate act done 
 by him to obtain the same ; and therefore, in such case, the law will 
 preserve the term in the same plight as it gave it to the husband, till he 
 by some express act destroys ir, or gives it away (c). 
 
 Where however the husband himself is lessee for life, and inter- 
 marries with the lessor, this merges his own term, because he thereby 
 draws to himself the immediate reversion, in nature of a purchase by 
 his own voluntary act, and so undermines his own term ; whereas, in 
 the other case, the term existing in the feme till the intermarriage, is 
 not thereby so drawn out of her or annexed to the freehold as to merge 
 therein ; because that attraction which is only by act of law consequent 
 upon the marriage, would, by merging the term, do wrong to a feme- 
 covert, and so take the term out of her, though the husband did no 
 express act to that purpose, which the law will not allow. But in such 
 case, if the feme should survive, and have dower of these lands, this 
 seems a merger of her term for a third part at least ; because now she 
 hath the term and freehold both in her own right, and then the accession 
 of the freehold muster; tanto merge and drown the term (d). 
 
 (a) Bac. Abr. ut art.-. Co. Lit. 33?, {h) Cro. Jac. 575. 
 
 (f) Bac. Abr. ut ant(, {d) Ibi<|
 
 154> Of Terms for Years absolutely, [Chap. VI 
 
 But if a feme executrix takes husband, and the husband after pur- 
 chases the reversion, and dies, yet the feme surviving shall not have 
 the term to any other purpose but as assets to pay debts ; for as to any 
 right of her own therein, the term is extinct by such purchase of the 
 husband, because that was his own express voluntary act, and there- 
 fore amounts to a disposition of the term by the merger wrought there- 
 upon {a). 
 
 One lets lands to A. for life, and twenty years over, and after lets 
 the same lands to B. for forty years, to commence after the death of 
 A. and the end of the said twenty years ; then B. intermarries with A. 
 and A. dies, and B. the husband hath the term for twenty years, yet 
 his term of forty years is not surrendered by it, because that was not 
 begun, but was a future interesse termini, to begin wholly after the first 
 lease ended ; so there was no union at all of the terms (£). 
 
 Land was given to the husband and wife, and to the heirs of the 
 husband ; the husband makes a lease for years, and dies, and the wife 
 enters and intermarries with the lessee : it was holden that this term 
 was not extinct, because the entry of the wife put a total interruption 
 to the interest of the lessee, and avoided the term entirely as to herself, 
 because she was in of the freehold by survivorship paramount the lease, 
 and then the lease cannot take place again till after her death against 
 the heirs of her husband, and whether she will outlive the term or not 
 is uncertain ; so that during her life, the lessee had no interest, but only 
 a bare possibility, which cannot be touched or hurt, by the intermar- 
 riage, but continues just as it was before (c). 
 
 As more particular notice of cases touching this matter would tend 
 little, if at all, to elucidate the subject of this work, we shall merely 
 mention, that a court of law cannot merge estates unless it finds them 
 in the same person, and acquired (subject to some exceptions) in the 
 same right. But courts of equity look into the beneficial interests and 
 views of parties, and do not regard whether the estates are strictly in 
 the same person, cr in different persons. Hence it is a general rule 
 with these courts, that where the owner of an estate becomes entitled 
 to a charge upon it secured by a term of years, such term shall sink for 
 the benefit of the heir. Thus, though the owner were a lunatic, the 
 term shad merge ; for as between his mere absolute real and personal re- 
 presentatives, no equity can exist. — But exceptions to this rule are ad- 
 mitted in several instances. 
 
 3. Termination by Surrender. — A third mode by which a lease may be 
 made to determine, is by surrender, which properly is a yielding up of 
 an estate for life or years to him that hath the immediate estate in re- 
 version or remainder, wherein the estate for life or years may drown by 
 mutual agreement (d) : and it differs from a release in this respect, that 
 
 («;) Bac. Abr. ut ante. (I) Bac. Abr. tit. « Leases" (S. 3.) 
 
 (<■; I'-'id. (R.) (./) Co. Lit. 337.
 
 Sect. II.] or on Condition, $c. 135 
 
 the release operates by the greater estate descending upon the less ; 
 whereas a surrender is the falling of a less estate into a greater (a). 
 
 A surrender is made by these words, " hath surrendered, granted, 
 and yielded up." The surrenderor must be in possession, and the sur- 
 renderee must have a higher estate, in which the estate surrendered 
 may merge : therefore tenant for life cannot surrender to him in remain- 
 der for years. In a surrender there is no occasion for livery of seisin ; 
 for there is a privity of estate between the surrenderor and the surren- 
 deree, the particular estate of the one and the remainder of the ether 
 being one and the same estate ; livery therefore having been once made 
 at the creation of it, there is no necessity for having it afterwards (/■). 
 
 If an estate be surrendered, the whole estate is determined without 
 other ceremony ; and as to the parties themselves, it will be determined 
 to all intents (t). 
 
 By the statute of frauds and perjuries (29 Car. 2. c. 3.) it is pro- 
 vided, that no leases, estates, or interests, either of freehold or term of 
 years, shall be surrendered, unless it be by deed or note in writing, 
 signed by the party so surrendering or their agents thereunto lawfully 
 authorized by writing, or by act and operation of law. s. 3. 
 
 It was held, that a lease for years cannot be surrendered by cancel- 
 ling the indenture without writing ; because the intent of the statute 
 was to take away the manner they formerly had of transferring interests 
 in lands, bv signs, symbols, and words only ; and therefore, as a livery 
 and seisin on a parol feoffment was a sign of passing the freehold, be- 
 fore the statute, but is now taken away by the statute, so the cancelling 
 a lease was a sign of a surrender, before the statute, but is now taken 
 away, unless the^e be a writing under the hand of the party. — It has 
 also been held, that die statute does not. make a deed absolutely neces- 
 sary to a surrender; for it directs it to be made either by deed or note 
 in writing, which note in writing, though not a deed, must, it is con- 
 ceived, be stamped, according to stat. 23 G. 3. c. 58. s. 1. which im- 
 poses a duty on " any conveyance, surrender of grants or offices, re- 
 lease," iffc. and the surrender of a lease is the surrender of a grant, and 
 is, as it were, a re-demise (d). 
 
 As to what estate a surrender may operate upon, it was once doubted 
 whether years could merge in years ; but it seems to be now settled, 
 that if a term in reversion be greater than a term in possession, the 
 greater would merge the lesser, as ten years may be surrendered and 
 merge in twelve or fourteen years (e). 
 
 Even though the reversion were for a less number of years, ■ yet the 
 surrender would be good, and the first term drowned •, as if one were 
 the lessee for twenty years, and the reversion expectant thereupon were 
 
 (a) Co. Lit. 337. 11. 1. (i) Z Bl. Com. 326. Co. Lit. 337. 
 
 (e) Com. Dig. tit. Surrender (L. 1.) Co. Lit. 338. 6. (J) 11. 1, to Co. Lit. 338. 
 
 (?) Bac. Abr. tit. " Leases" (S. 2.) Cro. Eliz. 30?.
 
 iSG Of Terms fur Years absolutely* [Chap. VI. 
 
 granted to one for a year, who granted it over to the lessee for twenty 
 years, this would work a surrender of the twenty years' term, as if he 
 had taken a new lease for a year of his lessor ; for the reversionary in- 
 terest coming to the possession drowns it, and the number of years is 
 not materia], for as he may surrender to him who hath the reversion 
 in fee, so lie may to him who hath the reversion for any lesser 
 lerm (a). 
 
 It was held therefore, that where lessee for twenty years makes a lease 
 for ten years, and the lessee for ten years surrenders to his lessor, viz. 
 to the lessee for twenty years, that this is good, and the lessor shall have 
 so many of the years as were then to come of his former term of twenty 
 years, that is, as it scemsj, so many years as were to come of his reversion 
 shall be now changed into possession (b). 
 
 Whether a lease for years in possession may be surrendered so as to 
 be merged in a lease in remainder, be the term in remainder greater or 
 lesser than the term in possession, seems to be no where settled ; an 
 estate for life however cannot, it is conceived, be surrendered to or 
 merge in a reversion if it be only for years, but this is held otherwise 
 elsewhere (c). 
 
 Surrenders in law, or implied surrenders, are excepted in the statute 
 of frauds, and remain as they did at common law, if the lease, which is 
 to draw out such surrender, be in writing pursuant to that statute (7/). 
 
 As to the surrender in law of leases in possession, this is wrought by 
 acceptance of a new lease from the reversioner, either to begin pre- 
 sently, or at any distance of time during the continuance of the first 
 lease ; the reason why such acceptance of a new lease amounts to a sur- 
 render, and determination of the first is, because otherwise the lessee 
 would not have the full advantage that he had contracted for by accep- 
 tance of the second lease, if the first should stand in the way and con- 
 sume any of those years comprised in the second lease j for which reason 
 and to enable the lessor to perfect and make good his second contract, 
 the lessee must be supposed to waive and relinquish all benefit of the 
 first (e). 
 
 If therefore lessee for life, or years, take a new lease of him in rever- 
 sion, of the same thing in particular contained in the former lease for 
 life or years, this is a surrender in law of the first lease. For this 
 purpose, it is not necessary that the surrenderor be in possession, for if 
 a lease be to commence at Mich, next, and the lessee take a new lease 
 before Mich, this is a surrender in law of the first lease (/"). 
 
 So, if lessee for years accept a nevy lease from the guardian in 
 socage (g). 
 
 (a) Cro. Eliz. 302. a Ld. Raym. 4C2. (i) Ibid. Poph. ,-0. (c) B.-.c. Abr. ut ante, 
 
 (/) Shep. Touch. 301. & Corri. Dig. tit. Surrender (L. 1.) Fuk. 68. St:. t. 29. C. 2. c. 3. 
 (t) Bac.Abr. tit. 31 ('6. 3O Cro. EIiz.521. 605. (/) Shrp. Touch. 301, 
 
 (r ) Ccrn. D:g. tit. Surrender 'L. I.)
 
 Sect. II.] or on Condition, %c. 337 
 
 So, if lessee for twenty years takes a lease for ten years, to be<nn at 
 Michaelmas, there Is no doubt but that the term of twenty years is sur- 
 rendered or determined presently ; for by the lessee's acceptance he 
 allows the lessor able to let the land during the other lease, and indeed 
 by such acceptance the lessor hath power to make a new lease during 
 the former, and at the time of the lease making (a). 
 
 If there be two lessees for life, or years, and one of them take a new 
 lease for years, this is a surrender of his moiety ; whereby it appears 
 that a surrender in law may be made of some estates which cannot be 
 surrendered by a surrender by deed ; for potior est dispositio legis quam 
 hominls (&). 
 
 But the reversion of the surrenderee must be an immediate rever- 
 sion (f). 
 
 If therefore A. lets to B. for ten years, who lets to C. for five years, 
 C. cannot surrender to A. by reason of the intermediate interest of B. 
 but in such a case B. may surrender to A. and after so many years C. 
 likewise, because then his lease for five years is become immediate to the 
 reversion of A (d). 
 
 Where the lessee for years of a house accepts a grant of the custody 
 of the same house, it is a surrender, and has been so adjudged ; for the 
 custody of the same thing which was let before, is another interest in 
 the same thing leased, and cannot stand with the first lease (V). 
 
 If the first lease be of the land itself, and the second lease is of the ves- 
 ture of the same land, this is held to be a surrender of the first lease. 
 
 So, if the lessee accepts a grant of common, or rent out of the same 
 land, to commence at a certain day within the term (/}. 
 
 So, if the grantee of an office accepts a new grant of the same office, 
 it will be a surrender (g). 
 
 Lessee for years to begin presently cannot, till entry or waiver of the 
 possession by the lessor, merge or drown the same by any express 
 surrender; because till entry there is no reversion wherein the posses- 
 sion may drown : but if the lessee had entered, and assigned his estate 
 to another, such assignee before entry might have surrendered his es- 
 tate to the lessor, because by the entry of the lessee the possession was 
 severed and divided from the reversion, which possession, being by as- 
 signment transferred to the assignee, may without other entry be sur- 
 rendered, and drown in the reversion (#). 
 
 If there be two joint-tenants, and one of them have the particular 
 estate, and the other the fee-simple ; as where an estate is limited to 
 two and the heirs of one of them, and he that hath the estate for life 
 aliens his part to a stranger, in this case the alienee may surrender to 
 
 !» Cro. Eliz.522. (6) Shep. Touch. 302. (»Plowd. 541. 
 
 U) B.-.c.Abr. tit. (S. 3.) 0; Cro. Jr.c. 177. (/) Com. Dig. tit. Surrender (J. 1.; 
 
 (?) Hid. (h) Bar. Abr. tit. " Leases" (2.)
 
 138 Of Terms for Years absolutely, [Chap. VI. 
 
 the other joint-tenant ; — so, if there be three joint-tenants for life, and 
 the fee-simple is limited to the heirs of one of them, and one of the 
 joint-tenants for life releases to the other, and he to whom this release 
 is made surrenders to him that hath the fee-simple, this is a good sur- 
 render of a third part. — But otherwise one joint-tenant cannot surrender 
 to another joint-tenant although he who makes the surrender be tenant 
 for life, and he to whom it is made be tenant in fee-sirnple (a). 
 
 One executor may surrender an estate or lease for years, which the 
 executors have in the right of their testator (b). 
 
 But if one enter into land, and make a lease for the trial of the title 
 only, and afterwards the lessor (he and the lessee being both out of 
 possession) make another lease of the same thing to the lessee, it seems 
 this is no sun-end er of the first lease ; but if the lessor enter before he 
 make the lease, contra {c). 
 
 If the husband have a lease or estate for years in the right of his wife, 
 he alone, or he and his wife together, mav surrender it; but if the 
 husband have an estate for life in the right of his wife, being tenant in 
 dower or otherwise, and he alone, or he and she together, surrender it, 
 this surrender is good only during the life of the husband, except it be 
 made by fine (d). 
 
 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 net any present surrender of the first term, because J. S, might 
 wholly outlive that term, and then there would be no union to work a 
 surrender; and it being in equilibria in the mean time, whether he will 
 survive it or not, the first term shall not be hurt till that contingency 
 happens, for if 'J. S. die within the first term, then what remains of it 
 is surrendered and gone by the taking place of the second (e) . 
 
 Although the statute of frauds directs that the deed or notice in writ- 
 ing shall be signed by the surrenderor, yet where an agreement was 
 entered into between the lessor and lessee, at the instance of the for- 
 mer, for the surrender of a lease, an assignment actually prepared, the 
 key delivered up and accepted, and a long acquiescence on the part of 
 the lessor, without any claim or demand upon the lessee ; it was decreed 
 in equity that the lessee should be discharged of the rent from the time 
 he had delivered up the key (f). 
 
 But (g) if in a lease determinable on three lives, it is covenanted that 
 on the death of one, the lessee may if he please surrender, and that the 
 lessor shall thereupon and upon payment of a fine, grant a new lease 
 for three lives in the terms of the old lease, and in a new lease there is 
 a covenant to surrender the same absolutely, as a life drops equity 
 
 (a) Shep. Touch. 303. (i) Ibid. (0 Ibid - 
 
 (</) Shep. Touch, tit ant:. (?) Bac. Abr. tit. " Leases" (S. 53.) 
 
 (/) Bac. on Leases, 21 1. {g) 9 Mod. $$;"
 
 Sect. II.] or on Condition, §c. \$g 
 
 will assist the lessee to retain possession as if the prior lease had con- 
 tinuance (a). 
 
 If lessee re-demise his whole term to his lessor, it is a surrender in 
 law, and as fully as if it had been actually surrendered: and this not- 
 withstanding a reservation of rent be made (£). 
 
 So, where a lease came into the hands of the original lessor, by an 
 agreement entered into between him and the assignee of the original 
 lessee, " that the lessor should have the premises as mentioned in the 
 lease, and should pay a particular sum over and above the rent 
 annually, towards the goodwill already paid by such assignee," it 
 was adjudged that such agreement operated as a surrender of the whole 
 term (c). 
 
 But if a lessee reserved to himself any interest in or part of the 
 estate, it is no surrender. For if lessee for years makes a lease to his 
 lessor for all but a day, this is clearly no surrender of his lease, be- 
 cause the day disjoins the union, and prevents the merger which would 
 have followed if the lease had been for the whole term ; for then the 
 lessor would have had the whole estate entire in him, as he had before 
 he made the lease, and consequently the lease would be merged and 
 drowned in the reversion (d). 
 
 So, if he lease to his lessor for the lessor's life; for he has a possi- 
 bility to have it again (>). 
 
 An agreement between the lessor and a stranger that the lessee shall 
 have a new lease, is no surrender (f). 
 
 If lessee accepts a new lease in trust for another, it is no sur- 
 render (g). 
 
 So, if he accepts a grant of a thing consistent with the lease of the 
 land, it is no surrender: as if the lessee of a manor accepts the grant 
 of a bailiwick, or the stewardship of the same manor, for it is collateral; 
 so if he accepts the office of parkkeeper of the same park for his life, 
 that is no surrender, for the same reason (h). 
 
 But where lessee for years of an advowson was presented to the 
 advowson by the lessor, it was adjudged to be a surrender of his 
 term (i). 
 
 So, if a copyholder in fee take a lease for years of the same land, it 
 is an extinguishment of his copyhold in perpetuwn : but if he take a 
 lease for years of the manor, that is but a suspension of his copyhold 
 during the term (k). 
 
 It is said, that if a man hath lands in A. and other lands in B. and lets 
 those in A. for twenty-one years, and the next day lets all his lands in 
 B. for ten years, it is not any surrender of the lands in A, but shall be 
 
 («) 4 Bro. R. 419. (*) * Mod - J 75- ( e ) « T - 44*- 
 
 (J) Com. Dig. tit. « Surrender" (H.) (L. 2.) Bac. Abr. tit. " Leases" (S. 3.) 
 (0 Com. Dig. ut aut*. (/) Cro. Eliz. 173. (g) Com. Dig. ut aitlt. 
 
 (t) Cro. Jac x.76. (0 Ibid. 84. (»'■) Ibid,
 
 140 Of Terms for Years absolutely, [Chap. VI. 
 
 construed as a lease of all the other lands; which may well stand with 
 the former lease (a). 
 
 So if a lessee take a grant of a rent-charge out of the same land for life, 
 or if a lessee for life take a grant of a rent-charge for years, that is not 
 any surrender, because he might have the benefit of that rent after the 
 estate in the land is determined: but if a lessee for life take a grant of 
 a rent-charge for life out of the same land, that is a surrender, for 
 otherwise the rent-charge cannot take any effect. 
 
 So it is said, if the lessor grants a rent, common, £sV. out of the 
 land to his lessee, without saying at what time it shall commence, it is 
 no surrender; but it shall be intended after his term (£). [But quxre 
 this ? for if the delivery o{ the deed constitute the commencement, as 
 it docs in all cases where no date occurs or period is fixed, it seems i: 
 would be a surrender.] 
 
 So, if the kinggrant an office by patent, or make a demise for years, 
 the acceptance of a new patent in the one case, or of a new lease in 
 the other, is no surrender of the first grant (.:). 
 
 A fine levied by a tenant for life to a reversioner in fee, to the use of 
 the conusee and his heirs, upon condition broken to the use of the 
 conusor for life, and one year over, is not a surrender (d). 
 
 No surrender, express or implied, in order to or in consideration of 
 a new lease, will bind, if the new lease is absolutely void ; for the 
 cause, ground, and condition of the surrender, fails; it is not indeed 
 lxasonable in itself, nor can it be the intent of the parties, that an 
 acceptance of a bad lease, should be an implied surrender of a good 
 one. Indeed a void contract for a thing that a man cannot enjoy, can- 
 not in common sense and reason imply an agreement to give up a 
 former contract (e). 
 
 The mere cancelling in fact of a lease is not a surrender of the term 
 thereby granted within the statute of Frauds, which requires such 
 surrender to be by deed or note in writing, or by act or operation in law ; 
 nor is a recital in a second lease that it was granted in part considera- 
 tion of the surrender of a prior lease of the same premises a surrender 
 by deed or note in writing of such prior lease. "Where tenant for life 
 with a special power for leasing, reserving the best rent in consideration 
 (as recited) of the surrender of a prior term of ninety-nine years (of 
 which above fifty were unexpired) and certain charges to be incurred by 
 the tenant for repairs and improvements, tjfe. granted to him a new 
 lease of the premises for ninety-nine years, by virtue of the power 
 reserved to her or any other power vested in or in any wise belonging to 
 her, which new lease was void by the power for want of reserving the 
 best rent ; Held that the second lease being void under the power should 
 not operate in law as a surrender of the prior term as passing an 
 
 (a) Cro. jac. 177. (I) Com. Dig. ut antt, (<-) Cro. Car. 197. 
 
 (d) C:\ iih. 655. (-) 3 Eur. 1807. 4 Bur. 19S0.
 
 Sect. II.] or on Condition, §c. 141 
 
 interest out of the life estate of the grantor, contrary to the manifest 
 intent of the parties, and consequently that the prior term, though the 
 indenture of lease were in fact cancelled and delivered up when the 
 new lease were granted, might be set up by the tenant of the premises 
 in bar to an ejectment by the remainder man after the death of tenant 
 for life (a). 
 
 So if a surrender is intended for a particular purpose, and that 
 purpose (the only motive of it) fails ; the surrender ought to fail 
 too (b). 
 
 If therefore the new lease does not pass an interest according to the 
 contract and intention of the parties, an acceptance of it is not an im- 
 plied surrender of the old lease (<;). 
 
 A lessee may surrender upon condition, and if the condition be 
 broken, the particular estate shall be revested (d ;. 
 
 If lessee agrees to quit upon condition, and the condition be not per- 
 formed, it does not amount to a surrender of his interest: as where a 
 person being in possession of premises as tenant from year to year, 
 under an agreement for a lease of fourteen years, and the rent being in 
 nrrear, executed a deed, which stated that he had agreed to quit the 
 premises, and that a valuation was to be made of his effects, which 
 were in the mean time to be assigned to a trustee for the landlord. 
 The deed accordingly assigned the effects upon trust to have the valua- 
 tion made, and out of the amount to retain the arrears of rent, and 
 pay the residue to the tenant. The tenant, however, did not in fact 
 quit possession, nor was any valuation made; and it was held that the 
 agreement to quit being conditional, and the condition not having been 
 performed, nor the agreement in any manner acted upon, it did not 
 operate as a surrender of the tenant's legal term from vear to year, and 
 consequently that the landlord's right to distrain for the arrears of rent 
 continued after six months from the making of the deed (e). 
 
 If lessee for years surrender his whole term to the original lessor 
 upon condition, lie may upon non-performance of the condition re- 
 enter and revive the term ( f). 
 
 Lessee lor life made a lease for years, rendering rent, and after sur- 
 rendered to the lessor upon condition, then the lessee for years takes a 
 new lease for years of the lessor, and after the lessee for years performed 
 the condition, and evicted the lessee for years who re-entered, and the 
 lessee for life brought debt for the first rent reserved •, and it was ruled, 
 that it was not maintainable, for the lease out of which it was reserved 
 is determined and gone ; for though the surrender of the tenant for life, 
 which made the lessee for years immediate tenant to the first lessor, and 
 so enabled him to make such surrender, was conditional, yet the de- 
 
 (<0 6 East. 661. (b) 3 Bur. 1807. 4 Bur. 19*0. 
 
 (-■) Com. Dig. tir. "Estates" (G. 13.) id) Co. Lit. :i8. b. 
 
 (e) 1 2 East. 134. (/) 2 Mod. :;6. 
 
 5
 
 142 Of Terms jar Years absolutely, [Chap. VI. 
 
 feasance of the estate for life by performance of the condition cannot 
 defeat the estate cf the lessee for years, which was absolute and well 
 made, and then the rent reserved thereon is gone likewise (a). 
 
 If lessee for years of lands accepts a new lease by indenture of part 
 of the same lands, this is a surrender for that part only, and not for 
 the whole, because there is no inconsistency between the two leases for 
 any more than that part only which is so doubly leased; and though 
 a contract for years cannot be so divided or severed, as to be avoided for 
 part of the years, and to subsist for the residue, either by act of the 
 party or act in law, yet the land itself may be divided or severed, and 
 he may surrender one or two acres, either expressly or by act of law, 
 and the lease for the residue will stand good and untouched (b). 
 
 As to surrenders of leases in future or future interests, a lessee for 
 years of a term to begin at a day to come cannot surrender it by an 
 actual surrender before the day of the term begin. But he may by a 
 surrender in law (c). 
 
 To make a good surrender in deed of lands, these things are requi- 
 site. I. That the surrenderor be a person able to make, and the sur- 
 renderee a person capable and able to take and receive a surrender, and 
 that they both have such estates as are capable of a surrender; and for 
 this purpose, that the surrenderor have an estate in possession of the 
 thing surrendered at the time of the surrender made; and not a bare 
 right thereunto only. 2. That the surrender be to him that hath the 
 next immediate estate in remainder or reversion, and that there be no 
 intervening estate. 3. That there be a privity of estate between the 
 surrenderor and surrenderee. 4. That the surrenderee have a higher 
 and greater 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 his 
 wife, &c. 6. That he be sole-seised of this estate in remainder or 
 reversion, and not in joint-tenancy (rf). 
 
 Such persons, therefore, as are disabled to grant, are disabled to sur- 
 render (e) ; and such persons as are disabled to take by a grant, are dis- 
 abled to take by a surrender : so such persons as may be grantees may 
 be surrenderees, therefore a surrender to an infant is good, provided it 
 be a surrender in law, by the acceptance of a new lease, and that such 
 new lease increase his term or decrease his rent; a surrender by an in- 
 fant-lessee by deed is absolutely void (f). 
 
 In respect to pleading a surrender ; if a surrender be by acceptance 
 of a new lease, it is not good to say, that the lessee being possessed of 
 a former lease, the lessor demised to him ; but that the lessee surren- 
 
 (a) Bac. Abr. tit. " Leases" (S. 3.) (I) Bac. Abr. tit. " Leases" (D. 3.) 
 
 (<-) Shep. Touch. 304. Cro. Eliz. 522.605. (d) Shep. Touch. 303. 
 
 (0 Ibid. (/) Cro. Car. 504.
 
 Sect. II. J or on Condition, 8$c. 143 
 
 dered and then the lessor demised, or that the lessor entered and de- 
 mised (a). 
 
 So, regularly he ought to plead that he surrendered the estate and 
 land ; but if the party plead a surrender of a lease, it is sufficient to 
 say, " the demise aforesaid." 
 
 So, regularly he ought to shew, that the lessor assented tothe surren- 
 der, where the other pnrtv pleads or brings an action in disaffirmance of 
 it; but it is not of necessity, and the omission will be aided after ver- 
 dict (b) : and when it is pleaded that the lessor agreed to the surrender, 
 it shall be intended that he entered ; and it is not usual to plead a re- 
 entry upon a surrender, no more than when a feoffment is pleaded, to 
 plead livery and seisin thereof ; because it is admitted c). 
 
 A surrender has in certain circumstances been presumed, where evi- 
 dence of the fact was not to be had : indeed, the Court will not require 
 positive proof of a surrender in any case where there is sufficient pre- 
 sumption of it [d\ 
 
 But there must be presumption of the surrender from some facts or 
 circumstances; for length of time alone is nothing: and though the 
 Court in one case did lay it down that after a recovery of forty years 
 standing, they would without any other circumstances, presume a con- 
 ditional surrender to have been made by the tenant for life, yet there 
 were other circumstances in the case to induce a supposition of a sur- 
 render having been made. So where possession had not gone with the 
 recovery, the Court would not presume a surrender by the tenant for 
 life. — Entry in an attorney's book was admitted in evidence on the sub- 
 ject (e). 
 
 A surrender of a lease was presumed in order to let in the statute of 
 limitations if). 
 
 Of the Renewal of Leases. — Concerning the renewal of leases, some 
 nice points occur in the books, touching the construction of covenants 
 for that purpose. 
 
 A. and B. covenant in a lease for sixty-one years, that at any time 
 within one year after the expiration of twenty years of the said term of 
 sixty-one years, upon the request of the lessee and his paying 61. to the 
 lessors, they would execute another lease of the premises unto the les- 
 see for the further term of twenty years, to commence from and after 
 the expiration of the said term of sixty-one years, £sV. and ^o, in like 
 manner, at the end and expiration of every twenty years, during the 
 said term of sixty-one years, for the like consideration and upon the 
 like request, would execute another lease for the further term of twenty 
 years, £sV. to commence at and from the expiration of the term then 
 last before granted, &e. Under this covenant, the lessee cannot claim 
 a further term at the end of the first and second twenty years in the 
 
 (a) Com. Dig. t ? t. Surrender. («). 
 
 
 lb) Ibid. 
 
 (.-) Cro. Car. 501. 
 
 [J) zBur, ic;s. 
 
 w 
 
 Ibid, 10-5. 
 
 (/) 1 Bur. 126.
 
 144* Oj Terms fur Years absolutely, [Chap. VI. 
 
 lease ; for this is an agreement on the part of the lessors to grant a fur- 
 ther lease on a precedent condition to be performed by the leasee, which 
 in the principal case he had not dene (a). 
 
 Under a devise of seven different estates, to a sister, brothers, and 
 nephe s respectively, one to each stock including as to six of the estates 
 three several lives in succession, ofi each estate ; and as to the seventh, 
 which, in the first instance, was only limited to two persons for life in 
 succession, giving those two a power to add another life or lives to 
 make three, in like manner as after mentioned for other persons to do 
 the same, and then giving this general power, that when and so often 
 as the lives on either of the estates before given shall be by death re- 
 duced to tw r o ; that then it shall be in the power of the person, or per- 
 sons, then enjoying the said estate or estates to renew the same with 
 the person, or persons, to whom the revenue thereof shall belong, by 
 adding a third life in such estate and paying such reversioner two years* 
 purchase for such renewal, and also to exchange either of the said two 
 lives on payment of one year's purchase : Held that this power of re- 
 newal only authorized the addition of one life to the three on each es- 
 tate, and of making one exchange of a life (b). 
 
 Where a lessor covenants thai if a lessee surrender at any time during 
 the term, he will grant him a new lease, and then accepts a fine of the 
 premises; this is a breach of the condition, and in an action of debt 
 en bond for the performance of covenants, the lessee need not shew- 
 that he offered to surrender (c). 
 
 If a lease for ninety-nine years, determinable on three lives be con- 
 veyed in trust for A. for life, and A. covenant to use his utmost endea- 
 vours as often as any of the persons on whose lives the premises are 
 held shall die, to renew the same by purchasing of the lord of the fee 
 a new life in the room of such as shall fail, it is no breach of the cove- 
 nant if upon one of the lives failing he procure a renewal upon his own 
 life (J). 
 
 A lease was for twentv-cne years \l. rent, with covenant to tenants 
 to renew from twenty -cue years to twenty-one years, to make up ninety- 
 nine years : a: the expiration of the first term, an arrear of rent being 
 due and no application being made for a renewal, tire lessor brought an 
 ejectment and obtained judgment and possession ; on a bill filed in 
 Chancery for a renewal on payment of the rent in arrear and interest, it 
 was decreed; the delay being accounted for, and there being no neglect 
 on the part of the lessee or prejudice to the lessor {e). But where it 
 was coven.anted that the lessor would renew whenever any life or lives 
 cropped, provided that if the lessee, ids executors or administrators, 
 upon or after the dt^h of any of the life or lives, shall refuse or neglect 
 to renew the said lease or make application therein, &c. or tender such 
 
 (t) i T.R.222. ■'*) :cl;--'. 549- ;<} Cc^t. gj 9 . Crc.Bliz. 450.47?. 
 
 (J) 1 E-.;. i: Pul. 455. - 4 Br. K 41.;,
 
 Sect. I I.J or o)i Condition, 8$c. ]45 
 
 new lease, and pay or tender a certain fine, o/co then the indenture, l£c. 
 to be void : by such neglect the lessee forfeits his right of renewal, 
 and may, it seems, be ejected for not applying when the first life 
 dropped (a). 
 
 An agreement wss in writing between landlord and tenant, signed 
 by the landlord, for a new lease to be granted at any time after the com- 
 pletion of the repairs to be made by the tenant with all convenient speed, 
 but blanks were left for the da\ of commencement : trie repairs being 
 completed, the landlord tendered a lease to commence from that time, 
 and on refusal filed a bill in Chancer-; for specific performance : the 
 answer admitted that the agreement was accepted ; but insisted that the 
 new lease was not to commence rid the expiration of the cod ; and so 
 was it decreed, parol evidence in explanation being refused ib). 
 
 The lessor of the plaintiff, a prebendary of Sarum } brought an eject- 
 ment to avoid a lease made by his predecessor, as net being conformable 
 to the proviso in 32 11. 8. c 28. s. 2. which requires that upon renewals, 
 the old lease must be e pired, surrendered cr ended within one year 
 next after making the new lease : and his object ion was that the sur- 
 render of the former lease was with the condition, that if the then 
 prebendary did not within a week after grant a new lease for three lives, 
 the surrender should be void ; whereby the whole term was no': abso- 
 lutely gone, but the lessee reserved a power of setting it up again. Bur. 
 the court held this to be within the statute, which was chat there should 
 not be two long leases standing out against the successor. Here the 
 new lease was made within the week, and from thence it became an 
 absolute surrender both in deed and in law ; and the whole was out of 
 the lessee, without further act to be done by him. In the proviso there 
 is the word ended as well as surrendered, and can any body say the 
 first lease is not at an end. Tins was no more than a reasonable cau- 
 tion in the first lessee to keep seme hold of ids old estate, till a new title 
 was made him (c). 
 
 Where a lessor covenanted to renew the lease at the request of the 
 lessee within the term ; but the lessee did not 1000c ; Ids executors 
 however did request within the term : it was objected that the request 
 ouedit to have been made by toe lessee, and nor by his executors who 
 mi;;ht be insolvent persons, and consequently the les or ir danger of 
 losing his rent. But by the Lord Chancellor (Lord Allele -field) : The 
 executors cf every person are implied in himself and bound without 
 naming; and the meaning of the covenant was to the tnd that the 
 lessee might be reimbursed the money which he had hod cot in the im- 
 provement of the premises, for which reason, it is immaterial whether 
 the testator or his executors required the renewal of the lease, it mod 
 not be personal. As to the objection that the executors might be insol- 
 
 (a) 3 Ves, jun. Z9J, - : - 34- (d ; •=-• 1 201 ' 
 
 L
 
 US Of Terms for Years absolutely, [Cnap. VI. 
 
 vent, and such as the defendant would not care to trust, to this it may 
 be answered, that a clause of re-entry is in the lease, and the value of 
 the premises being doubled by the improvements of the original lessee, 
 such clause will secure the landlord against any insolvency of the te- 
 nant. The usual term being for twenty-one years, let the defendant 
 demise the premises to the plaintiff for twenty-one years, or for any 
 lesser term, as the plaintiff shall elect : and though the lease is to be 
 made on the same covenants, yet that shall not take in a covenant for the 
 renewing this lease, forasmuch as the lease would never be at an end (a). 
 [Lord ILirdnuidc said this case did not apply as an authority on the 
 subject, being rather like an award and a compromise, than a decree (b j. 
 But vide post, 3 Ves. Jun. 298.] 
 
 "Whether the Lord Chancellor's apprehension in the above case, of 
 the perpetuity oi the lease, had he permitted to be inserted " cove- 
 nants for the remaining lease," be well or ill founded seems rather 
 doubtful. 
 
 Indeed, where (c) A. demised to B. for the life of the said B. and also 
 for the lives of C. and D. and covenanted that if B. his heirs, lz : e. should 
 be minded at the decease of the said B. C. and D. or any of them, to 
 surrender the said demise and take a new lease, and thereby <:do a new 
 life to the then two in being in lieu of the life so dying, that then he the 
 said A. his heirs, ts'c. upon payment of every life so to be added in lieu of 
 the life of every of them so dying would grant a new lease fur the liv:;s 
 of the two persons named in the former lease and 'ofsuch other per sou, as 
 the said B. his heir^, e J ,:. should appoint in lieu of the person named in 
 the preceding lease, as the same should respectively die "under the 
 same rents and covenants :' 5 There had been successive renewals from 
 the time of a former lease granted by the ancestor of A. and in each a 
 like covenant of renewal. Lord Mansfield. — The question in all these 
 cases is "Whether under the same rents and covenants" shall be con- 
 strued inclusive ox exclusive of the cause ot renewal. Arguments drawn 
 from every part of the agreement are material : here the parties them- 
 selves have put the construction upon it; tor there have been frequent 
 renewals, and in all of them the covenant of renewal lias been uni- 
 formly repeated. How then shall the Court say the contrary ?— Will's ; J. 
 The act of the parties seems to differ in this case from all the cases 
 < ited •, here there have been four or five renewals ail in the same terms. 
 £ do not think otherwise that Furnival and Crewe {d would be a suffi- 
 cient authority alone to determine this case; because there, the addi- 
 tional words " and so to continue renewing from time to time*' were 
 inserted. But the case of Bridges v. Hitckcoek is very much the same as 
 this : for there the words were " under the same rents and covenants," 
 and no other words. I cannot say that in this country this kind of 
 
 (.*) 3 P. Wins. 197. (b) 3 Atk. 44S. Med. 458. 
 
 (.-) Cowp. 819. 2 Br, R. f.39, :'.-.■. n. («/) 3 Atk. Bj. 
 
 4
 
 Sect. II.] or on Condition* $c. 147 
 
 lease should be much favoured, though the inducement for granting 
 them in Ireland may be a good one. Ashurst> J. I think this is a very 
 hard case on the part, of the lessor, and there does not seem any mutu- 
 ality, as in the case of improvement of lands. But as there have been 
 four successive renewals, the lessor himself has put his own construc- 
 tion upon the covenant : and therefore is bound by it. duller, J. I 
 think the case of Bridges v, Hitchcock (a) decides this. In that case, 
 both the House of Lords and the Exchequer determined, that the words 
 " under the same rents and covenants" in the new lease , contained a per- 
 petual covenant to renew. 
 
 But the judgment of the Master of the Rolls (Lord Alvanley) iii 
 Baynham v. Guy s Hospital (£), (in which case a right of renewal was 
 held to be forfeited by the laches of the tenant) seems to demolish a 
 doctrine which goes to establish a perpetuity, which the law abhors. 
 Master of the Rolls. — I strongly protest against the argument used by 
 the learned judges in Cooke v. Booths Ceivp. 819. as to construing 3. legal 
 instrument by the equivocal acts of the parties and their understanding 
 upon it ; which I will never allow to affect my mind. That case was 
 sent to law by Lord Bathurst. The learned judges thought fit to return 
 an answer to the Chancellor, that the legal effect was a perpetual re- 
 newal, upon the ground, that by voluntary acts, which the parties 
 might or might not have done, the parties themselves had put a con- 
 struction upon it. Mr. J. Willes stated, that as his only ground ; Lord 
 Mansfield made it is chief ground ; but that ground was disapproved 
 by Lord Thurloiv ; and is, I think, totally unfounded. I never will con- 
 strue a covenant so. I never was more amazed; and Mr. J. Wilson, 
 who argued it with me, was astonished at it. When it came back, 
 Lord Bathurst not having retained the great seal long enough for it to 
 come again before him, it came to Lord Thurfozu, who said that, sitting 
 as Chancellor, when he asked the opinion of a court of law, whatever 
 his own opinion might be, he was bound by that of the court of law: 
 therefore he decreed a renewal, but said he should be very glad if Mr, 
 Booth would carry it to a superior tribunal. We had a consultation, 
 and I wrote to Mr. B. upon it •, but he, being only tenant for life, re- 
 fused to appeal. There stands the case of Cooke v. Beoth. I see I have 
 put a note upon that case referring to Tritton v. Foote (c), (in which 
 case it was holden that a covenant of renew under the same covenants 
 is exclusive of the covenant to renewal) which is a positive determination 
 against the claim. I collect, therefore, from these cases, this; that the 
 courts in England at least, lean against construing a covenant to be for a 
 perpetual renewal, unless it is perfectly clear that the covenant does 
 mean it. Furnhal v. Crenue, relied en in Cooke v. Booth., had clear words 
 for a perpetual renewal, which made it impossible to construe it other- 
 wise. 
 
 (.1) 1 3r,P, 0. ju- (b) 3 Ves.jun. af3. U) * Br. R, 6;,i- 
 
 L %
 
 1-iS Oj Terms for Years absolute!//, [Chap. VI. 
 
 One in consideration of 5/. 8/. in nature of a fine and of a yearly 
 rent of 6s. gd. demised certain grounds with the buildings, tefc, for 
 twenty-one years with a proviso for distress, if the rent were in arrear 
 for fourteen days, and the lessor covenanted at the end of eighteen years 
 of the term or before on request of the lessee to grant a new lease of 
 the premises for the like fine for the like term of twenty-one years at 
 the like yearly rents with all covenants, grants, and articles as in that 
 indenture contained ; held that this covenant was satisfied by the tender 
 of a new lease for twenty-one years containing all the former covenants 
 except the covenants for future renewal, and held that an averment that 
 the covenant for renewal in the indenture declared on corresponded 
 with various other leases before then successively made by the owners 
 of the inheritance for the time being could not be taken in aid to con- 
 strue the meaning of the indenture ; for supposing such evidence ad- 
 missible in any case where the renewals had been uniformly the same, 
 yet non con stat from this averment that all the former leases contained 
 the same covenants for renewal (a). 
 
 Where a lease contained a covenant for perpetual renewal, a specific 
 performance was refused under circumstances, as laches and alteration 
 in the property, so that it could net be enjoyed according to the stipu- 
 lations (b). 
 
 Tenant-right of renewal — I: has long been an established practice to 
 consider those who are in the possession of lands under leases for lives 
 or years, particularly from the crown, colleges, isfc. as having an in- 
 terest beyond the subsisting term-, and this interest is usually denomi- 
 nated " the tenant right of renewal," which tenant though not any 
 certain or even contingent estate, there being no means of compelling 
 a renewal, yet it is so adverted to in all transactions relative to leasehold 
 property, that it influences the price in sales, and is often an inducement 
 to accept of it in mortgages and settlements (c). 
 
 For other cases on this subject we refer to the cases cited below (d), 
 cautioning the reader at the same time against an implicit reliance, as 
 on the authority in points applicable to English law, on the Irish cases, 
 which turned (as has been observed) on a vocal equity. 
 
 By the statute 4 G. 2. c. 28. which recites that whereas many persons 
 hold considerable estates by leases for lives or years, and lease out the 
 same in parcels to several under-tenants, and whereas many of those 
 leases cannot by law be renewed without a surrender of all the under- 
 leases derived out of the same, so that it is in the power of any such 
 under-tenants to prevent or delay the renewing of the principal lease, 
 by refusing to surrender their under-leases, notwithstanding they have co- 
 venanted so to do, to the great prejudice of their immediate landlords 
 the first lessees ; for preventing such inconveniences and for making the 
 
 fa) 7 T. st. :,-:-. 2 Bo.-. & Pul. N. R. 449. (;') 14 Ves. 440. (.-) 5 Br. Pari. Css, 
 
 '.'.) 1 Br. '.', C. ~~:- ;8l. 514. /. 5 Br. F. C. 7,0. 31. 1 E;. R, ';.,/> in «.
 
 Sect. II.] or on Condition, 8$c. l4fj 
 
 renewal of leases more easy for the future, it is enacted, that in case 
 any lease shall be duly surrendered in order to be renewed ; and a new 
 lease made and executed by the chief landlord or landlords, the same new 
 lease shall, without a surrender of all or any the underleases, be as 
 good and valid to all intents and purposes as if all the under leases de- 
 rived thereout had been likewise surrendered at or before the taking of 
 such new lease; and every person, &c. in whom any estate for life or 
 lives, or for years, shall be vested by virtue of such new lease, and his 
 'ire. executors and administrators shall be intitled to the rents, covenants, 
 and duties, and have like remedy for the recovery thereof, and the 
 under-lessees shall hold and enjoy the messuages, lands, and tenements, 
 in the respective under-leases comprised, as if the original leases, out of 
 which the respective under-leases are derived, had been still kept on foot 
 and continued - , and the chief landlord and landlords shall have the same 
 remedy by distress and entry upon the messuages, eeTe for rents, r Sc. 
 reserved by such new lease, so as the same exceed; not chose reserved in 
 the least cut of whi h such under-lease was derived, as they would have 
 had in case such former lease had been still continued, or the under- 
 lease had been renewed under such new principal lease, x. 6. 
 
 4. Termination by cancelling the Deed.— A fourth means whereby a 
 lease may be "or rather might have been] determined, is by cancelling 
 the deed by which it is granted. 
 
 Whatever doubts may have been formerly entertained as to the effxt 
 of era-nng or otherwise cancelling a lease for years, now, since the 
 statute ot frauds and perjuries, stat. 29 C. 2. c. 3. which makes all 
 leases for above three years to have only the force and effect of leases at 
 will, unless they be in writing, ami signed by tire party, izfe. the deed 
 or writing, whereby such lease is m d.e, seems to be or the same essence 
 as the lease itself, and therefore the cancelling or destruction of that 
 seems to destroy and avoid the lease itself, because it destroys ail evi- 
 dence allowed by lav.' for thesupport thereof: though in such case 
 Chancery frequently sets up the iease again, or decrees the party to 
 execute a new one for the residue of the term; which is not against the 
 prohibition of the act \ because there was once a yood and effectual 
 lease made pursuant to the statute (a). 
 
 Though that statute excepts leases not exceeding the term of three 
 years, yet even these are not absolutely excepted ; for it goes on, not 
 exceeding the term of three years from the making thereof, whereupon 
 the rent reserved to the landlord during such term shall amount unto 
 two-third parts at least of the full improved value of the thing demised, 
 and that no leases, estates, or interests either of freehold or terms for 
 years, or any uncertain interest, not being copyhold or customary 
 interest of, in, to, or out of any messuages, manors, lands, C5V shall 
 be assigned, granted, or surrendered, unless it be by deed or note in 
 
 (a)BdC.Abr, ti:. " Leases" (T.)
 
 150 Of Terms for Years absolutely, [Chap. Vh 
 
 writing signed by the party so assigning, granting, or surrendering the 
 same, or their agents thereunto lawfully authorized by writing, or by 
 act and operation of law. 
 
 Since the above statute, therefore, it should seem that a deed cannot 
 be determined by cancellation of the indenture, for that the surrender 
 by deed or note in writing was especially prescribed in lieu thereof. 
 
 The mere cancelling, in fact, of a lease, is not a surrender of the 
 term thereby granted, within the stat, of Frauds, which requires 
 such surrender to be by deed or note in writing or by act or operation 
 in law (a). 
 
 5. Termination by condition indorsed. — A lease may also be determined 
 by force of a condition indorsed upon the back side thereof, if it be 
 before the ensealing and delivery; as well as by force of a condition 
 within the deed (b). 
 
 A proviso in a lease for twenty-one years, that if either of the par- 
 ties shall be desirous of determining it in seven or fourteen years, it 
 shall be lawful for either of them, his executors or administrators, so 
 to do, upon twelve months' notice to the other of them, his heirs, 
 executors or administrators, extends, by reasonable intendment, to the 
 devisee of the lessor, who was entitled to the rent and reversion (c). 
 
 It is now clearly held, that to avoid the consequences of bankruptcy, a 
 landlord may take a clause that the lease shall determine on the bank- 
 ruptcy of the tenant-, and many prudent men take such a clause (d). 
 
 6. Termination by forfeiture of the Lease. — The sixth and last mode by 
 which a demise may be determined is by forfeiture of his lease. 
 
 Any act of the lessee, by which he disaffirms ox impugns the title of 
 his lessor, occasions a forfeiture of his lease ; for to every lease the law 
 tacitly annexes a condition, that if the lessee do any thing that may 
 affect the interest of his lessor, the lease shall be void, and the lessee 
 may re-enter; besides, every such act necessarily determines the relation 
 of landlord and tenant; since to claim under another, and at the same 
 time to controvert his title; to affect to hold under a lease, and at the 
 same time to destroy that interest out of which the lease arises, would 
 be the most palpable inconsistency (e). 
 
 A lessee may thus incur a forfeiture either by act in pai, or by matter 
 of record. By matter of record: where h° 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 de- 
 mand under the grant of a higher interest in the land; or where he 
 acknowledges the fee to be in a stranger: for having thus solemnly pro- 
 tested against the right of his lessor, he is estopped by the record from 
 claiming an interest under him. By act in pais : as where he aliens the 
 estate in fee, which however, (except the king be in remainder or 
 
 (a) 6 East. 661. (I) Cro. Jac. 456. (.-) 12 East. 464, 
 
 (/) ij Vcs.^in. 268. {e) Bac. on X-eases. 119.
 
 Sect. II.] or on Condition, §c. \s\ 
 
 reversion, in which case a feoffment in fee will effect it,) must be bv 
 feoffment with livery; for that only operates upon the possession, and 
 affects a disunion ; it cannot be by grant, or any conveyance operating 
 only on the grantor's interest, and passing only what he may lawfully 
 part with ; nor consequently, can it be of things lying in grant : a lease 
 by the tenant for more years than he has in the land is still more 
 venial ; because it is only a contract between him and his under-lessee 
 (or rather assignee) which cannot possibly prejudice the interest of the 
 original lessor, and does not even pretend to usurp or touch the free- 
 hold or inheritance (a). 
 
 A forfeiture by tenant for years in levying a fine, not having been 
 taken advantage of by the entry of the then reversioner to avoid the lease, 
 cannot be taken advantage of after the reversion has been conveyed 
 away, so as to recover the estate in ejectment from the tenant, upon the 
 several demises of the grantor and grantee of such reversion (J?). 
 
 A forfeiture is also incurred by the breach of express or convmtionary 
 conditions : for the lessor, having the jus Jisponen di t may annex what- 
 ever conditions he pleases to his grant ; provided they be not illegal, 
 unreasonable, or repugnant to the grant itself, and upon the breach of 
 these conditions may- avoid the lease (c). 
 
 Therefore, though it has been held that a lessee might make a 
 feoffment, and that notwithstanding the presence of the lessor, for 
 that the lessee has the possession and may dispose of it, yet it was 
 an extinguishment of the lease, and the lessor might enter for the for- 
 feiture (cl). 
 
 The law however will always lean against forfeitures, as courts 
 of ecjuity relieve against them : and as courts adhere strictly to the 
 precise words of the condition in order to prevent a forfeiture ; so, 
 where a forfeiture has manifestly been committed, they will not 
 allow the lessor to take advantage of it, if they find that he has 
 afterwards done any act that amounts to a waiver of it; as by accept- 
 ance of rent due after the forfeiture incurred, or action brought to re- 
 cover the same (c). 
 
 Forfeitures of leases stand on the same ground with forfeitures of 
 copyholds-, and there are a great many cases in the old books, where it 
 is held, that a mere knowledge and acquiescence in an act constituting 
 a forfeiture, does not amount to a waiver, but there must be some act 
 affirming the tenancy ( f). 
 
 The forfeiture must be known to the lessor at the time, in order to 
 render his acceptance of rent or any other act a waiver (g) ', for it has 
 been established in many cases, that acceptance of rent shall not operate 
 as a waiver of the forfeiture, or as a confirmation of the tenancy, 
 
 (.;) P-ac. on Lc-;?es. 119. {!>) 12 Iiast. 444. (c) 2 T. R. 1.-57. Cowp. 3oj. 
 
 {J) Crc. Eliz. 322. (V) Bull. N. P. 56. Br.c. on Leases, 226. 3 T. R. 173. 2 Cowp. 247. 
 
 (f) 3 Taunt. 80. fe ) Cro. Car. 234.
 
 Jo- Of Terms for Years absolutely, [Chap. VI. 
 
 unless the landlord lias i:ciicc that a forfeiture was incurred at the 
 time (V). 
 
 So, when it is said that a forfeiture rr.av be waived, it must be un- 
 derstood to apply to those cases in which, by the terms of the contract, 
 the estate, upon the tenant doing or failing to d < that which he has 
 Stipulated to abstain from or to perform, is determinable, and not where 
 it absolutely determines; for, it is to be observed, that where the estate 
 or lease is ipso facto void by the condition or limitation, no acceptance of 
 rent afterwards cam make it to have a continuance, otherwise it is of an 
 estate or lease voidable by entry (;>). 
 
 A tenant for life, having power to grant building leases for sixty-one 
 years, reserving the best improved ground rent, granted a lease for 
 that term, which was not expressed to be a building lease but which 
 contained a covenant by the lessee to keep in repair the premises demised 
 (old houses) " or such other house as shou'd be built during the term." 
 Held that this is not a building lease within the power (c-). Such a lease 
 being granted by tenant for life, who had a bare naked power without 
 any legal interest, is void, and consequently not capable of being con- 
 firmed by the remainder man accept!. g rent (;/). 
 
 Indeed it is undoubted law, that though an acceptance ot rent may- 
 make a voidable lease good, it cannot make valid a deed Gr a lease which 
 was actually void at first (<?). 
 
 If A. tenant for life subject to forfeiture, remainder over to B. lease 
 to C. for a term, and afterwards, apprehending that he has fe .kited, 
 acquiesce in Z>. : s claim to and receipt of the rent from C. his executor 
 may, on shewing that he acquiesced under a false apprehension, recover 
 from C. the amount of the rent erroneously paid to B. : for in order to 
 constitute a confirmation of the payment, some act must appear to have 
 b^cn done by A. with knowledge of his own situation. — Suppose, said 
 Mr. J. Butter t that one disseises another of an estate, and continues in 
 possession of the rents and profits with the knowledge of the disseissee, 
 will any body say that the disseisee shall not recover against the 
 tenant (/). 
 
 A lessee under a lease which contained a proviso against exercising 
 certain trades, under-let the premises to one, who partitioned off the shop 
 into two apartments, in one of which Ire carried on the business of a 
 fishmonger, and the other he let on lease to a butcher. The landlord lived 
 next door, and was witness to the conversion of the premises to those 
 uses, but though the under-lessee paid his rent to the lessee, no payment of 
 rent \; as proved to have been made to the landlord subsequently to the 
 alteration. After a lapse of six years the landlord brought an ejectment, 
 and it was held, that his long forbearance was not a waiver of the for- 
 
 (/) z T. R. 431. Cro. EHz. 22C. (.?) Doutl. 57. [29.] U) Wilits. 169. 
 
 (•/) Cro, Car. 393. Cowp, 452. (••) Willcs. 176. (/) I Eos. & Pul. 326.
 
 Sect. II.] or on Condition} §c. }jq 
 
 feiture, but that some positive act of waiver, as receipt of rent is 
 necessary; but it was said, that if the landlord had lain by and been 
 money laid out in improvements, th.it would have been a circumstance 
 from which a jury might imply consent to the alteration (a). 
 
 Under a proviso of re-entry upon under letting, an advertisement in- 
 serted by the tenant in a public paper, stating that a lease of the premises 
 would be granted, does not amount to a forfeiture (£). 
 
 Of Leases in reversion. —With respect to leases in reversion, it is to 
 be observed that " all leases where there is a particular estate out, are 
 leases in reversion." (r). 
 
 Thus if one lets a manor for thirty years, and the next day lets it to 
 another for forty years to commence from Michaelmas next after the date; 
 this passes a reversionary interest: for the lease being for years is a chat- 
 tel which may well expect or wait; and if I have a rent in fee I may- 
 grant it for years to commence at Michaelmas, for an estate doth not 
 pass, but an interest. 
 
 So, a husband may make a lease cf lands held in jo'.nt-tenancv with 
 his wife, to commence after his death, and it will be good though the 
 wife survive: for the husband having an interest to dispose of in Ins 
 life, he might dispose cf ah the term, and it should bind the wife; so 
 when he hath disposed by an act executed in his life of the interest of 
 the term., and hath created a term in interest, this is as good as if he had 
 granted all the term (d). 
 
 As to the manner of making such leases for years where there is a 
 prior lease or estate then in being, they cannot be made by parol lease ; 
 for besides that by the statute of Frauds and perjuries (e), no parol lease 
 for above three years is to have any other effect than only as a lease at 
 will, a deed is of the very essence of the grant of a reversion, or rever- 
 sionary interest, and without it no reversion or reversionary interest can 
 pas^ out of the lessor. Such leases therefore must be made by either 
 deed-poll, or indenture ( /). 
 
 If one makes a lease for life, and afterwards grants that the lands or 
 reversion shall remain to another for twenty-one years after the death of 
 the tenant for life, these words are sufficient to pass a reversionary 
 interest by way of future lease, though there is not the word " demise, : ' 
 or any other word usual or proper to describe a lease for years by; for 
 here, being words sufficient to prove a present contract for the rever- 
 sionary interest of these lands, after the estate for life determined, these 
 in case of lease for years, which is but a contract, are in themselves 
 sufficient and adequate to any other form (g). 
 
 A lease in reversion of several parcels of land, made to commence 
 en the happening: of several contingencies, shall (as has been ob- 
 
 {a) i Bos. & p., 1 .. 78. 4L) 1 Vcs. & Deam. 63. (0 Doug. 568. 
 
 ( ij Cro. Eliz. 2,87, (-■} 25 C. 2. c. 3, {j) Bar. Abr. tit." Lease" (N).
 
 loi Of Terms fur Years absolutely, [Chap. VI. 
 
 served) fake effect and commence respectively as those contingencies 
 happen (a). 
 
 If one had made a lea^e for life, or for eighty years, if the lessee 
 should so long live, and after by indenture let the same lands to another 
 for years to begin presently, and then the first lease determined by 
 death, surrender, or forfeiture, the second lessee should have the lands 
 in possession presently for the residue cf the vears, because such second 
 lease, by reason cf the estoppel, to °k effect between the parties pre- 
 sently, and therefore shall come in possession whenever the first lease 
 is out of the way ; but if such second lease had been only by deed-poll, 
 there must have been an attornment to have made it good as a grant of 
 the reversion, as there must likewise in the other case, where it was 
 made bv indenture : and without such attornment the second lease 
 could only have taken effect in possession upon the determination of 
 the first lease by the death of the lessee according to the express limita- 
 tion •, and not upon any sooner or other determination by surrender, 
 forfeiture, or otherwise (b). 
 
 The nature of a, lease in reversion we have more particularly ex- 
 plained in Chr.p. III. Sect. VII. 
 
 Of Attorr.r.ient. — Touching the subject of attornment, (which now 
 exists scarcely in any case) it may be as well to observe, that after the 
 statute quia emptores terrarum (c) was passed, by which subinfeudation 
 was prohibited, it became necessary that when the reversioner or re- 
 mainder-man after an estate for years, for life, or in tail, granted his 
 reversion or remainder, the particular tenant should attorn, or consent 
 to pay his rent, &c. to the grantee. This necessity of attornment was 
 in some degree diminished by the statute of uses (a), as by that statute 
 the possession was immediately executed to the use ; and by the statute 
 of wills, by which the legal estate is immediately vested in the devisee : 
 attornments however are now rendered almost unnecessary in any case, 
 by the statute of Anr.c, which enacts that all grants and conveyances of 
 manors, lands, rents, reversions, cfrV. by fine or otherwise, shall be 
 good without the attornment of the tenants ; but notice must be given 
 of the grant to the tenant, before which he shall not be prejudiced by 
 payment of any rent to the grantor, or of breach of the condition for 
 non-payment (e). Also, by an act (f) in the last reign, attornments 
 of lands, c3V. made by tenants to strangers claiming title to the 
 .state of their landlords shall be null and void, and their landlord's 
 possession not affected thereby : the statute, however, does not extend 
 to vacate anv attornment made pursuant to a judgment at law, or 
 with the consent of the landlord ; or to a mortgagee on a forfeited 
 mortgage. 
 
 fa) Crc . F.Iiz. 199. (0) B- Abr. tit. " Leases" (N.) f» 18 E. 1. St. t. 
 
 [d) 27 II. c. io. (e) Vide 34 &.-j H. 8. c. 5. 4 Ann. 16. s. 9. 1 T. R. 379.
 
 Sect. II. J or on Condition, eye. 155 
 
 Of Estoppel. — Leases for years sometimes enure by luay of estopped 
 which word signifies an impediment or bar to a man's invalidating hia. 
 own solemn act. 
 
 Therefore, if one makes a lease for years, by indenture, of lands 
 wherein he hath nothing at the time of such lease made, and afterwards 
 purchases those very lands, this shall make his lease as good and un- 
 avoidable as if he had been in the actual possession and seisin thereof at 
 the time of such lease made; because he having by indenture expressly 
 demised those lands, is by his own act estopped and concluded to say 
 that he did not demise them, and if he cannot aver that he did not 
 demise them, then there is nothing to impeach the validity of the in- 
 denture, which expressly affirms that he did demise them, and conse- 
 quently the lessee may take advantage thereof, whenever the lessor 
 tomes to such an estate in those lands as is capable to sustain and sup- 
 port that lease •, for an estoppel that affects the interest of ike land shall run 
 ivith it into whose hands soever the land comes («). 
 
 But if it appear, by recitals in the lease, that he had nothing at the 
 time of the demise, and afterwards he purchases the lands as aforesaid, 
 that will not enure by estoppel (b). 
 
 This estoppel by indenture is so mutual and reciprocal, that if 2 
 man takes a lease for years by indenture of his own lands, whereof he 
 himself is in actual seisin and possession, this estops him during the 
 term to say that the lessor has nothing in the lands at the time of the 
 lease made but that he himself or such other person was then in actual 
 seisin and possession thereof ; fcr by acceptance thereof by indenture, 
 he is for the time as perfect a lessee for years, as if the lessor had at 
 the time of making thereof the absolute fee and inheritance in him. 
 But if such lessee of his own lands, being ejected by the lessor, should 
 bring an ejectment, and the lessor should plead not guilty, and give the 
 lease and some matter of forfeiture thereof in evidence to support his 
 pica, without pleading, and relying on the estoppel, and the jury 
 should find the special matter, viz. that the defendant had nothing in 
 the lands at the time of such lease made, but that the plaintiff himself 
 was then in actual seisin and possession thereof, whether the Court, 
 upon this verdict, are bound to adjudge according to the truth of the 
 case, namely, that such lease by one who had then nothing in the lands 
 was void; or if they are to adjudge according to the law, working by 
 way of estoppel upon such lease by indenture, seems to be a doubt 
 upon the books ; but Lord Coke lays it down for a rule, that the jurv do 
 well to find the truth, viz. that the lessor had then nothing in the 
 land ; but then upon such finding, the Court is to adjudge, according 
 to the operation of law upon the estoppel wrought to both parties bv 
 
 U) Eac. Abr. tit. "Leases" (G.) i Med. 2J3. % Ld. Raym. 1048.S. c. 1 Sa'.k. ;;i. 
 s- c. 3 T. R. 371, {b) 1 Ld. Raym, 719.
 
 156 Of Terms for Years absolutely, [Chap. VI. 
 
 the indenture, that they are bound : and this seems to be the better 
 opinion (a) 
 
 Therefore in debt for rent upon an indenture, if the defendant 
 plead nil debet, he cannot give in evidence that the plaintiff had nothing 
 in tne tenements, because if he had pleaded it specially, the plaintiff 
 might have replied the indenture, and estopped him, or might demur, 
 for the declaration being on the indenture, the estoppel appears on 
 record. But if defendant plead nihil habuit, &c and the plaintiff 
 v. ill not rely on the estoppel, but reply habuit, the jury shall find the 
 truth (.''). 
 
 Bui if such lease for years were made by deed-poll of lands, wherein 
 the lessor h«.d nothing, this would not estop the lessee to aver that the 
 lessor had nothing in those lands at the time of the lease made, because 
 the deed poll is only the deed of the lessor, and made in the first or 
 third person ; whereas the indenture is the deed of both parties, and 
 both are, as it were, put in and shut up by the indenture. This how- 
 ever is where both parties seal and execure the indenture as they may 
 and ought, for otherwise, if the lessor only seals and executes ir, the 
 lessee seems to be no more concluded than if the lease were by deed- 
 poll •, for it is only the sealing and delivery of the indenture as his deed 
 that binds the lessee, and not his being barely named therein, for so lie 
 is in the deed-poll; but that being only sealed and delivered by the 
 lessor, can only bind him, and not the lessee, who is not to seal and 
 execute it: yet it should seem that such lease by deed-poll binds the 
 lessor himself as much as if it were by indenture, because it is executed 
 on his part with the very same solemnity, and therefore it should seem 
 he is bound by such lease by way of estoppel (r). 
 
 Estoppels ought to be mutual, otherwise neither party is bound by 
 them ; therefore, if a man take a lease for years of his own lands from 
 an infant or feme-covert by indenture, this works no estoppel on either 
 part, because the infant or feme, by reason of their disability to 
 contract, are not estopped ; therefore neither shall the lessee be es- 
 topped ((/). 
 
 So, if a man take a lease for years of his own lands by patent from 
 the king, rendering rent, this shall not estop the lessee, as an inden- 
 ture between common persons in such case would do, because the 
 king cannot be estopped ; and if he be not estopped, neither shall the 
 le^ee K e). 
 
 If one lets lands to me by deed enrolled, unknown to me, and brings 
 debt upon the lease, I may say tie lessa pns, it seems ; but he who made 
 such lease is concluded to say tne contrarv, which is in point to estab- 
 lish, that in case of a deed-poll (as this which is called a deed enrolled 
 
 (a) B.tc. Abr. ui ante. (L) Bull. N. P. 170. Salk. 277 cited. 2 Ld. Rnym. 1154. 1551 
 (,■) Bac. Abr. tit. " Leases" (0.) (rf) Ibid. Co. Lit. 352. (e) Bac. Abr. ut ante.
 
 Sect. II.] or on Condition, §c. 157 
 
 must be intended to be) the lessor himself is estopped, though the 
 lessee be at large : and this cannot be intended an indenture, because 
 then the lessee would have been estopped likewise, if he had sealed it, 
 which in this case it appears he did not, because it was unknown to 
 him, rnd thereiore was not estopped, whether it were by indenture or 
 deed-poll. 
 
 These estoppels continue no longer on either part than during the 
 lease ; for as they began at first by making the lease, so by determina- 
 tion of the lease, they are at an end likewise for then both parts of the 
 indenture belong to the lessor [a). 
 
 When an interest actually passes by the lease, there shall be no 
 estoppel ; though the inrerest purported to be granted be really greater 
 than the lessor at that time had power to grant : as if A. lessee for the 
 life of B. makes a lease for years by indenture, and after purchases the 
 reversion in fee, and then B. dieth, A. shall avoid his own lease, 
 though several of the years expressed in it be still to come: for he may 
 confess and avoid the lease which took effect in point of interest, and 
 determined by the death of B (£). 
 
 If a man takes a lease for years of the herbage of his own land by 
 indenture, this is no conclusion to say that the lessor had nothing in 
 the lands at the time of the lease made •, because it was not made of the 
 lands themselves (c). 
 
 If A. seised of ten acres, and B. of other ten acres, join in a lease 
 for years by indenture, they are several leases according to their several^ 
 estates, and no estoppel is wrought by the indenture to either party, be- 
 cause each has an estate whereout such lease for years or interest may 
 be derived ; and the reason why estoppels are at any time allowed is, 
 because otherwise, when the party had nothing in the lands, the in- 
 denture must be absolutely void, which would be hard to say, when the 
 party hath under his hand and seal done all in his power to make it 
 good ; and since it can be good no otherwise, it shall be good by 
 estoppel, rather than be absolutely void ; but when an interest passes 
 from each lessor, the indenture works upon such interests to carry that, 
 and therefore leaves nq room for its operating by way of estoppel ; but 
 yet, since both equally joined in the lease, without distinguishing the 
 several interests they had therein, the indenture works by way of con- 
 firmation, with respect to each from whom the whole interest did not 
 pass ; that is J.'s confirmation for B.'s part, and B.'s confirmation for 
 ^.'s part (d). 
 
 So, if two tenants in common of lands join in a lease for years by 
 indenture of their several lands, this shall be the lease cf each for their 
 respective parts, and the cross confirmation of. each for the part of the. 
 other, and no estoppel on either part ; because an actual interest passe ■• 
 
 (a) Co. Lit. 47. Cro. Eliz. 36. (&) Co. Lit. 47- b. («) Ibid. 
 
 (./) Ibid. 45. a. Bac.Abr. tit. "Leases" ,0;
 
 153 Of Terms for Years absolutely* [Chap. VI. 
 
 from each respectively, and excludes the necessity of an estoppel, which 
 is never admitted, if by any construction it can be avoided, as being one 
 of those things which the law looks upon as odious, because it clokes 
 and disguises the truth (a). 
 
 But if two joint-tenants for life or in fee, Join in a lease for years 
 by indenture, reserving the rent to one of them only, this shall give 
 him the rent exclusive of the other: and here the estoppel turns not up- 
 on the interest passed by the lease, for that is several according to their 
 several rights as in the other cases, which excludes any estoppel, but it 
 turns upon the reservation of the rent, which being made in this man- 
 ner, to one exclusive of the other by indenture, works an estoppel 
 against all the parties to say the contrary ; and though, the rent issues 
 out of one part as well as the other, yet it not being part of the thing 
 demised, but moving, as it were, rather by way of grant from the les- 
 see after the lease made, the lessors are considered as accepting it in 
 this manner by indenture, which concludes them as well as it doth the 
 lessee (i). 
 
 But if the lease had been by parol or deed-poll, reserving rent to the 
 one joint-tenant only, this would not have excluded the other joint-te- 
 nant from an equal share therein ; because this reservation coming, as it 
 were, by way of grant from the lessee, and being only by parol or deed- 
 poll, could not conclude the lessors, who, with respect to the rent, were 
 <-ls it were, grantees, and only passive ; and the rent shall follow the 
 reversion in proportion to their several estates, and so let in both parties 
 to an equal participation thereof (c\ 
 
 !f two coparceners join in a lease for years, by indenture, of their 
 several parts, this is said in one book to be but as one lease : because 
 rhey have not several freeholds therein, but only one, as both making 
 nut one heir, and therefore shall join in an assize ; but where in eject- 
 ment the plaiutifFdeclared of a lease by two coparceners quod dcmisernnt t 
 exception being taken to it, the exception was allowed, because the 
 lease was several as to each coparcener for their own respective moiety ; 
 and this seems to be the better law, because though they have but one 
 freehold with regard to their ancestor, and therefore if disseised, shall 
 join in an assize, yet as to their disposing power thereof they have se- 
 veral rights and interests, so that neither of them can lease or give away 
 the whole (cl). 
 
 But where the declaration in ejectment was of the joint-demise of A. 
 and B. and on evidence it appeared that they were tenants in common, 
 the plaintiff failed (f). 
 
 A lease for years may operate as to part by estoppel, and as to ths 
 residue by passing an interest [f). 
 
 (j) Co. Lit. 45. a. Bac. Abr. tit. " Leases" (O). 
 
 (t) Ibid. Co, Lit. 47. a. Gilb. on Rents, 63. (.) IL'd. 
 
 fcO Bjc. Abr. tit. •' Lease*" (O.) (e) Co. Lit. 45- »• (/) Sa!k. %1S-
 
 Sect. II.] or on Condition, &;c. \sg 
 
 Debt on bond conditioned for the performance by R, G. of ?.ll the 
 covenants on his part mentioned in a certain indenture, bearing even 
 date with the bond, made or expressed to be made between the plaintiff 
 and the said R. G. Plea, that before the execution of the bond it was 
 agreed that the plaintiff should grant to R. G. a lease under certain 
 covenants, and that the defendant should enter into a bond as surety for 
 the performance of those covenants ; that the defendant did accordingly 
 enter into the bond on which the action was brought, and that the in- 
 denture mentioned in the condition thereof is the lease so agreed 
 upon and no other ; but that the said lease never was executed. On 
 demurrer, it was held that the defendant was estopped by the condi- 
 tion of the bond from pleading this plea. Lord Eldon, C. J. observed, 
 that the condition of the bond was for the performance of covenants 
 comprised in a certain indenture « made or expressed to be made" be- 
 tween the trustees and the defendant : and that the object of introducing 
 those words seemed to have been, that whether the execution of the 
 indenture could be proved cr not, the covenants contained in the paper 
 writing which purported to be an indenture between the trustees and 
 the defendant should be considered as the covenants of the defend- 
 ant (a). 
 
 As to estoppels, though the reason why they are allowed seems to be, 
 that no man ought to allege any thing but the truth for his defence, and 
 what he has alleged once is to be presumed true, and therefore he ought 
 not to contradict it, for allegans contraria 71011 est audiendus (b) ; yet, 
 estoppels in general are not to be favoured ; they ^-re to be extended 
 only as far as positive rules have gone, because the tendency of them is 
 to prevent the investigation of the truth of the case (<:). 
 
 Of future Interests being barred. — Respecting future interest?, as to 
 their being barred or destroyed, it has already appeared, that all lease? 
 for years at common law when they come in esse, arc to be executed by 
 the entry of the lessee; but as to future interests, it has been clear]', 
 held, that if one make a lease to commence two years after, when the 
 two years shall have expired, the lessee before any entry may grant h\> 
 term, although the lessor continues in possession, because such lessee's 
 interesse termini, was not divested cr turned to a right, but continued in 
 him in the same manner as it was at first granted, and in the same man- 
 ner he transfers it over to another, who by his entry may reduce it into 
 possession whenever he thinks fit (J). 
 
 One made a lease for years, to begin after the end of a former lease for 
 years then in being, the first lease determined, and before entry of the 
 second lessee, lie in reversion entered and made a feoffment in fee, and 
 levied a fine with proclamations, and five years passed without entry or 
 claim of the second lessee, and if his term were barred? was the question. 
 
 («) 2 Bos. & Pul. 29?. (b) Co. Lit. 25 -■ n. 1. 
 
 [c) 4 T. R. *j4 S Mod. 31 J. (d) Bag. Abr. tit. " Leasts" (P.j Cro. Eiiz. 157.
 
 160 Of Terms for Years absolutely, [Chap. VI. 
 
 It was adjudged, that by this fine and non-claim his term was barred, be- 
 cause after the first lease expired, the second lease was actually then 
 come in esse, and reducible into possession by an entry presently, and 
 then his not entering, which was his own fault and laches, could not 
 Stop the operation of the fine from running against him (a). 
 
 But if such lino had been levied during the continuance of the first 
 lease, it was agreed, that in such case the operation thereof should not 
 begin to run out against the second lessee till the first lease were deter- 
 mined, because till then the second lease was only an interesse termini, 
 which the second lessee could not reduce into possession by any entry 
 till the first lease determined, and therefore was not obliged to take 
 notice of the acts of strangers, or of the ter-tenant in possession ; for 
 if such future interest micdit be divested before it came in esse, the lessee 
 or grantee thereof, having never entered, would have no means to revest 
 it, and therefore till it comes in c.se, the law takes care to secure it to the 
 lessee or grantee in the same manner as it was at first granted ; but when 
 the first lease is at an end, then the second lessee is to take care of it him- 
 self, and if he suffer five years to elapse after that time without entry 
 or claim, this will bar such interest, because his right then commences 
 in po\fcesaion, and from thenceforth the operation of the fine begins to 
 run « a against him. The case in Noy 123 has been denied by Tivisden 
 to be law (b). 
 
 As the lessee must enter when his lease comes into possession, so, if 
 he enters before, it will be a disseisin, and no continuance of possession, 
 though after the term actually begins, will purge the disseisin, or alter 
 the estate of the lessee (c). 
 
 Yet debt lies for the rent in respect of the privity of contract upon 
 the lease made (el). 
 
 Where one declared of a lease 16 April habendum from the annun- 
 ciation last past for ten years, " by virtue of which he entered and had 
 the tenements aforesaid from the said annunciation:" this was held 
 good, and that tire lessee was no disseiser ; for it shall be intended that 
 he entered and occupied before by agreement-, and a diversity was taken 
 between this case, where the commencement of the lease is limited 
 from a time past, and that where it is limited to begin at a time to come, 
 in winch case the entry of the lessee before that period is a disseisin (e). 
 
 Of Terms hi trust. — As to terms or leases for years in trust, the 
 relation of landlord and tenant is little, if at all, elucidated by a con, 
 sideration of them ; but as they have occasionally been mentioned in 
 the course of the work, it may not perhaps be superfluous shortly to 
 notice them. 
 
 'Ihese terms are either vested in trustees for the use of particular 
 persons, or for particular purposes, or else upon trust to attend the in- 
 heritance. In the first case they are called terms in gross ; and the per- 
 
 {a) Eac. Abr. ,.i ante. Cru. Jac. Co. 3 Mod. 198. 1 Lcl. Ray. i^j. 
 
 (/) Bac. Abr, ut ant* (0 Cro. liliz, 169. (J) Ibid. («) Ibid. 903.
 
 Sect. II.] or on Condition, kc. iGl 
 
 sons entitled to the beneficial interest, have a right in equity to call on 
 the trustees, or persons who have the legal interest in the term, for the 
 rents and profits of the lands, and also for an absolute assignment of the 
 term (<?). 
 
 It lias been held, that if a man be cestuique trust of a term, it is not 
 assets within the statute of frauds (b). 
 
 It has been held by the court, that a fine levied in pursuance of a 
 trust cannot destroy any lease made by cestuique trust; but though a 
 fine by cestuique trust does not destroy or extinguish the trust, yet it is 
 not safe to do it, by reason of the danger of not being able to prove an 
 agreement to the contrary. 
 
 Upon trial of an issue out of Chancery, it was upon evidence agreed, 
 that if one made a lease for an hundred years in trust for himself and 
 his wife, ami afterwards they both join in levying a fine to a purchaser 
 for a valuable consideration who had no notice of this lease in trust, 
 though the fine does not convey the term itself to the conuzee, the 
 estate in law being in the trustee, yet this destroys the trust, so that the 
 lease shall not hurt the purchaser. 
 
 Terms attendant on the inheritance owe their existence to the follow- 
 ing circumstances. Wlien terms for years became fully established, 
 and the interest of the term was secured against the effect of fictitious 
 recoveries, long terms became common : in all cases of this kind, though 
 the purposes for which the term was raised were fully satisfied, yet it did 
 not determine, so that the legal interest continued in the trustee ; but as 
 the owner of the inheritance was entitled to all the benefit and advan- 
 tage of it, the term became, in fact, consolidated with the inheritance, 
 and is usually called a term attendant on the inheritance (c). 
 
 Of Leases by ivay of Mortgage. — Tenant for years may also be 
 created by way of mortgage, the nature of which is explained in 
 Chap. III. Sect. XIV. We shall therefore merely again observe, 
 that 
 
 As to mortgages, by way of creating terms, this was formerly by 
 way of demise and re-demise, as for example; A. borrowed money of 
 B. whereupon A. would demise the land to B. for a term of 500 oV/. 
 years absolutely, with common covenants, against incumbrances and for 
 farther assurance, and then B. would the day after re-demise to A. for 
 499 years, with condition to be void en non-payment of the money at 
 the day to come. This manner of mortgaging came in after the 21 H. 
 d.c. 15. for falsifying recoveries, when a fixed interest was settled in. 
 terms for years : it was esteemed best for the mortgagor, because it 
 avoided all manner of pretention from the incumbrances and dower of 
 the feoffee in mortgage, and it was reputed best for mortgagee, inasmuch 
 as it avoided the wardship and feudal duties of the tenure, and was 
 
 fc) Cruis, Dig. Tit. XII. c. 3, (*) 2 V«n. ;,8. (OCiuis.Pi? Tit. XII. c. a.
 
 \6-2 Of Terms for Years absolutely, §c. [Chap. VI. 
 
 only inconvenient in this — that if the second deed were lost, there 
 appeared to be an absolute term in the mortgagee (a). 
 
 The common method of mortgaging however, is by a demise of the 
 land for a term, under a condition to be void on payment of the mort- 
 gage-money and interest; and a covenant is inserted at the end of the 
 deed, that till default shall be made in the payment of the money bor- 
 rowed, the mortgagor shall receive the rents and profits, without 
 account (/;). 
 
 A mortgage in the form of a lease was granted of a feme covert's 
 estate, by the husband and wife. After the husband's death, the deed 
 being in the hands of the mortgagee, the widow had directed the te- 
 nants in possession to attorn to the mortgagee, had settled with him for 
 the balance of the rents, styling him mortgagee, and had not questioned 
 his possession for many years. In delivering the judgment of the Court, 
 Lord Mansfield said, that they were all of opinion that the conveyance 
 in this case, though in the form of a lease, was in substance a mort- 
 gage, and not being within the reason for which leases by a feme-covert 
 are held to be only voidable, was absolutely void on the death of the 
 husband : but that the acts done by the widow, the deed being in pos- 
 session of the mortgagee, were tantamount to a re-delivery, which, 
 without a re-execution, is equivalent to a new grant U). 
 
 Where the lease is not a beneficial lease, it is for the interest of the 
 mortgagee to continue the tenant; and where it is, the tenant may put 
 himself in the place of the mortgagor, and either redeem himself or get 
 a friend to do it (</). 
 
 Upon a refusal of the money by the mortgagor, a tender being made 
 at the place and at some time of the day specified in the condition, the 
 condition is saved for ever, and the land is discharged, because upon 
 the tender the demise is void K c). 
 
 I3ut if one mortgage his reversion in fee to the lessee for years, 
 whereby his term is surrendered, and afterwards pays the money pursu- 
 ant to the condition, yet his term shall be extinguished and not re- 
 vived f \. 
 
 (j) Bac. Abr. tit. <; Iwoi'^sg:" .'A.y 'uj iiii.i. 
 
 ic) Doug. 53. [17.] (d) Daus- 2.1, 
 
 ( ; <; B..c. Abr. tit." Mortgage" (D.) 
 
 . , , Cum.lYu.iit. ■'.v.-r-.-.i-r" 1.. 1.) ;, !.-<,-. ',
 
 C 163 ] 
 
 CHAPTER VII. 
 
 For what Term Leases may be made. 
 
 Section I. Of Tenants from Year to Year, wherein of 
 
 Notice to quit. 
 Section II. Of Tenants for a less Term, wherein of 
 
 Lodgings. 
 Section III. Of strict Tenants at JVM. 
 Section IV. Of Tenants at Sufferance. 
 
 Section I. Of Tenants from Year to Year, zc herein of 
 
 Notice to quit. 
 
 r T ^HAT which was formerly considered as a tenancy at will has been 
 -5 since properly construed to enure as a tenancy from year to year (a), 
 which, therefore, may now be said to be when a man lets lands or te- 
 nements to another, without limiting any certain or determinate estate ; 
 especially if an annual rent be reserved b). 
 
 A general parol demise, therefore, at an annual rent, where the bulk 
 of the farm is enclosed and a small part of it in the open common 
 fields, is only a lease from year to year ; and not for such time as .he 
 round of husbandry continues (r). But where the crop, as of liquo- 
 rice, madder, &c. does not come to perfection in less than two years, 
 it might be otherwise d). 
 
 Averment in a declaration that plaintiff was possessed of premises 
 for the remainder of a certain term of years then unexpired therein, 
 which he agreed to assign to the defendant, is supported by evidence of 
 a tenancy from year to year (e). 
 
 The distinction taken between a tenant from year to year and a tenant 
 for o. term of years, is rather a distinction in words, than in subs r ance. 
 A tenant from year to year is entitled to estovers, and the same advan- 
 tages as a tenant lor a term of years; in truth, he is a tenant from 
 year to ye. r as long as both parties please : and considering how many 
 large estates are heid by this tenure, it would be dangerous to say that 
 the term ceased a: the end of the year (/) 
 
 It would be extremely u just, that a tenant who occupies land, should, 
 after he has sown it, be turned out of possession without reasonable 
 
 t. , 8 T . p 3, 3 T. R. 16. [b) Cqm. Dig. tit. « Estates" (H. 1.) 
 
 ( : 1 P.i H 1171. (J) Ibid. 
 
 (O 1 Cumpb. 317. (/) 6 T. R. 297, 
 
 M 2
 
 164 Of Tenants from Year to Year, [Chap. VII. 
 
 notice to quit; and it was in order to avoid so unjust a measure, that 
 so long ago as in the time of the Year-Books it was held that a general 
 occupation was an occupation from year to year, and that the tenant 
 could not be turned out of possession without reasonable notice to 
 quit •, and that rule has always prevailed since (a). The doctrine, in 
 truth, respecting notice to quit was laid down as early as the reign of 
 Henry VIII. (b). 
 
 Touching the distinction between six months' and half a year's no- 
 tice, the case in the Year -Books requires half a year's notice; for the 
 moment the year began the tenant had a right to hold to the end of that 
 year (c). The six months' notice, therefore, means half a year, and 
 not merely the space of six months at any time of the year ; for sucli 
 half year's notice must expire at the end of the year, or it will not be a 
 good notice (d). 
 
 Premises are let from year to year upon an agreement that, either 
 party may determine the tenancy by a quarter's notice ; this notice must 
 expire at that period of the year when the tenancy commenced (>). 
 
 Where a tenant by lease continues to hold after the expiration of it, 
 as tenant ?.i will, and assigns to another, the tenancy of the assignee- 
 shall be held to commence at the day on which it commenced under the 
 lease, arid a notice to quit on that day only is good, notwithstanding 
 the assignee came in on a different day. 
 
 In tenancies from year to year, there must be six months' notice on 
 either side to quit, according to the ancient law; except where any spe- 
 cial agreement, or the custom of particular places, intervenes (f). 
 
 Where rent is reserved quarterly, it does not dispense with the regu- 
 lar six months' notice to quit required by law : but is merely a collateral 
 matter (g). 
 
 So, though a lease be void by the statute of frauds as to the duration 
 of the term, the tenant holds under the terms of the lease in other re- 
 spects ; and therefore the landlord can only put an end to the tenancy 
 at the expiration of the year (k). 
 
 If there be a lease for a year, and by consent of both parties the te- 
 nant continue in possession afterwards, the law implies a tacit renova- 
 tion of the contract j for where a tenant holds over after the expiration 
 of his term, without having entered into any new contract, he holds 
 upon the former terms : they are therefore supposed to have renewed 
 the old agreement, which was to hold for a year. But then it is neces- 
 sary, for the sake of convenience, that if either party should be inclined 
 to change his mind, he should give the other half a year's notice betore 
 the expiration of the next or any following year (i). 
 
 (a) 7 T. R. 05. (/>) 1 T. R. 163. 13 H. 8. 15. b. (e) Ibid. 
 
 (J) z Salk. 413. 3 Wils. 25. 1 H. Bl. 97. 1 T. R. 163. 1 Esp. R. 266. 
 
 (e) 2 Cr.m; b. 678. (/) 2 Bl. R. I22J. 3 T. R. I/. 
 
 ( .-) i Esp. K, 266. (h) 5 T. R. 471- (0 1 T - R" * 6 *-
 
 Sect. I.] wherein of Notice io quit. 165 
 
 So, where tenant for life grants a lease for years which is void 
 against the remainder-man, and the htter, before he elects to avoid it, 
 receives rent from the tenant, whereby a tenancy from year to year is 
 created, yet this is with reference to the old term, and therefore a half 
 year's notice to quit from the remainder-man ending with the old year, 
 is good (a). 
 
 So, where tenant for life makes a lease for years, to commence on , 
 a certain day, and dies before the expiration cf the lease, in the 
 middle of the year ; the remainder-man receives rent from the les- 
 see, (who continues in possession, but not under a fresh lease) for 
 two years together on the days of payment mentioned in the lease : 
 this was held to be evidence from which an agreement will be presumed 
 to subsist between the remainder man and the lessee, that the lessee 
 should continue to hold from the day, and according to the terms of 
 the lease ; ?o that notice to quit ending on that day is proper (b). 
 
 Tenant in tail having received an ancient rent of il. i'6s. 6d. from 
 the lessee in the possession under a void lease granted by tenant for 
 life under a power, the rack rent value of which was 3c/. a year, cannot 
 maintain an ejectment laying his demise, at least, on a prior day with- 
 out giving the lessee some notice to quit, so as to make him a trespasser 
 after such recognition of a lawful possession either in relation of te- 
 nant, or at least as continuing by sufferance till notice (c). 
 
 It once was doubted, whether if the landlord or tenant died, the same 
 notice to his executors or administrators was necessary as would have 
 been requisite had he lived ; and it was even suggested that a month's 
 notice in such case would suffice a 7 ). 
 
 It is now settled, however, that in the case of a tenancy from year 
 to year as long as both parties please, if the tenant die intestate, his ad- 
 ministrator, as his legal representative, has the same interest in the land 
 which his intestate had ; for such tenancy is a chattel interest, and 
 whatever chattel the intestate had must vest in his administrator as his 
 legal representative (^). 
 
 So half a year's notice to quit must be given to a tenant at will (that 
 is to say a yearly tenant) or his executor, or an ejectment will net 
 lie (/). 
 
 This principle is so settled that it has been adjudged (g) that the exe- 
 cutor of a tenant from year to year of an estate under 1 o/. a year, may- 
 gain a settlement by residing on it forty days : on the ground inter alia) 
 that he resided on an estate of his own and continued there forty days 
 irremovable; and that he had a permanent interest \. whether beneficial 
 or not, was immaterial for this purpose' in it, while his office of execu- 
 tor continued. Lawrence, J. observed that it was settled in D. d. 
 
 C^iT.R.85. 7T.R.478. zE? P .R.5Cl. (h) 1I-l.Bl.97. (c) ioEast.261. 
 
 (0 1 El. R. 596, ( f )sT. R. 16. (/) 3 Wils. sj. fj)6T.R. 295
 
 ]G6 Of 'Tenants from Year to Year, [Chap. VII. 
 
 Shore v. Porter, (3 T. R. 13.) that if a tenant who held from year to 
 year died intestate, his administrator has the same interest in the land 
 that the intestate had. Then what was the interest of the pauper's tes- 
 tator ? He had a right: to continue on the estate another year, unless 
 six months' notice to quit were given; and of course the pauper, his 
 executor, had the same right. In regard to an objection taken in re- 
 spect to the want of a probate, the learned Judge cited a case (a) that 
 gave a decided answer to that : a termor devised his term to another, 
 whom he made his executor, and died ; the devisee entered and with- 
 out any probate ; and it was held that the term was legally in the exe- 
 cutor by his entry and an execution of the devise without any probate. 
 So that if there had been no probate of the will in this case, still the 
 term was vested in the pauper, the executor. 
 
 In this respect the right and the remedy must be reciprocal ; as the 
 representative capacity of executor or administrator is not affected by 
 the testator or intestate having been in the situation of either landlord 
 or tenant. 
 
 But although, if the testator die in the possession of a term for years, 
 it shall vest in the executor, and although if it be worth nothing, he 
 cannot waive it, for he must renounce the executorship in toto or not 
 at all ; yet this is to be understood only where the executor has assets : 
 for he may relinquish the lease, if the property be insufficient to pay 
 the rent ; but in case there are assets, to be at the loss for some years, 
 though not during the whole term, it seems the executor is bound to 
 continue tenant till the fund is exhausted, when on giving notice 
 {thereof) to the lessor, he may waive the possession lb). 
 
 So in the case of an infant. Therefore, where an infant becomes 
 entitled to the reversion of an estate leased from year to year, he cannot 
 eject the tenant without giving the same notice as the original lessor 
 must have given (t~). Also if a tenant hold under an agreement for a 
 lease at a yearly rent, whereby it is stipulated that the agreement shall 
 continue for the life of the lessor, and that a clause shall be inserted in 
 the lease, giving the lessor's son power to take the house for himself 
 when he came of age, the son must make his election m a reasonable 
 time, as for example, a week or fortnight, after he comes of age \ the 
 delay of a year is unreasonable, and the tenant cannot be ejected upon 
 half a year's notice to quit served alter such a delay (it). 
 
 So, where an ejectment has been brought on the demise of an in- 
 fant, which action is compromised, and the tenant in possession attorns 
 to the defendant ; though the infant, on coming of age, does not accept 
 rent or do any act to confirm the tenancy, yet, as the former ejectment 
 was brought at ids suit and for his benefit, he shall not be allowed to 
 
 ..]Dv..:C)J.;m. (/>] it-U L. of fix. & Auni. 109. and the cases there cited, 
 
 •• -Y.K.iv,. f.'IsT. R. 456.
 
 Sect. I.] wherein of Notice to quit. 1G7 
 
 consider the tenant as a trespasser, and bring a new ejectment without 
 giving notice to quit (a). 
 
 Tenant from year to year also before a mortgage or grant of the 
 reversion, is entitled to six months' notice to quit before the end of the 
 year from the mortgagee or grantee (/>). 
 
 Thus where a tenant held from the 2 2d of November as a yearlv 
 tenant •, and a mortgagee who became such in July was desirous of 
 ousting him, it was too late to give notice then for the tenant to quit at 
 the end of the current year ; for the tenant, at the time that the mort- 
 gagee's title accrued, had as permanent an interest in the estate till the 
 22d of November, as if it had been leased to him by deed till that period(r). 
 
 There is no distinction in reason between houses and lands, as to the 
 time of giving notice to quit ; it is necessary that both should be go- 
 verned by one rule. There may be cases where the hardship would be 
 felt in determining that the rule did not extend to houses as well as 
 lands : as in the case of a lodging-house in London being let to a tenant 
 at Lady-day to hold from year to year, if the landlord should give notice 
 to quit at Michaelmas, he would by that means deprive the lessee of the 
 most beneficial part of the term, since it is notorious that the winter is 
 by far the most profitable season of the year for those who let lodg- 
 ings. The notice should be half a year preceding the expiration of the 
 year (d). 
 
 Tithes in this respect are assimilated to land. If, therefore, a com- 
 position for tithes be made by A. as proprietor, and he lease them to B. 
 whose interest is afterwards put an end to by A. before any alteration is 
 made in the composition, A. cannot determine it without six months* 
 notice (e). 
 
 A notice to quit has reference, in all cases, to the letting; therefore, 
 where a house was taken by the month, it was held that a month's no- 
 tice was sufficient to entitle the plaintiff to recover (f). 
 
 Though reasonable notice must be given before the end of the year by 
 landlord or tenant, and such notice is generally required to be half a 
 year's, vet it varies according to the custom of different countries (g). 
 
 Therefore, where the arable part of a farm was to be entered on, and 
 quitted on the 13th of February, it was considered to be no more than 
 what the custom of most countries would have directed without any spe- 
 cial words, on a taking from Lady-day to Lady- day ; that being the time 
 when the land is to be prepared for Lent-corn •, and as the tenant out- 
 going has the benefit of the way-going crop, any inconvenience to him 
 is obviated ; whereas great mischief might happen to landlords if com- 
 pelled to give notice so early as August, as it would enable the tenant to 
 harrass the land i/A 
 
 (<z) 3 Esp. R. 530. ViT.R.jPc (<■) Ibid. 381. (-') 1 T. R. l6i 
 
 {e) 1 Pul. & Bos. 43?-. {/) * Esp. R. 94. (_» x 3 B.n. 1 6oo. 
 
 [b)7 Bl R. :::;.
 
 163 Of Tenants from Year to Year, [Chap. VII. 
 
 The preceding case, however, is said to have been much questioned, 
 if not over-ruled, by Lord Kenyan, at Nisi Prius, in the case of Doe on 
 the demise of Lord Gray de Wilton at Stafford Summer As izes, 1788 ; 
 which was an ejectment brought by a landlord on a notice 10 quit. The 
 defendant held a farm, as to the arable lands from Candlemas ; as to the 
 buildings and pastures from May-day; the rent payable at Michaelmas 
 and Lady-day. The notice to quit was given six months before Mas- 
 day, but not six months before Candlemas . His Lordship nonsuited 
 the plaintiff, and is stated to have said that the notice must be given 
 half a year before Candlemas (a). But it does not appear whether 
 the notice to quit was given half a year before Lady-day or not, bo as to 
 bring it within the rule laid down in Doe v, Suowdon. Qua re ? whe- 
 ther the case of Doe v. Snowdon, [2 Bl. R. 1224 ante, did not turn upon 
 the construction of a notice to quit given to a tenant from year to 
 year, which not being upon a contract under sea!, might be governed 
 by the- custom of the country, in relation to which the parties might be 
 supposed to have contracted ; for which purpose the entry on the arable 
 land was not considered as a general taking possession of it at that 
 period, but only for a special purpose, viz. to plough and prepare for 
 the Lent-corn (b). 
 
 Under an agreement by a tenant of a farm to enter on the tillage land 
 at Candlemas, and on the house and all other the premises at Lady-day 
 following, and that when he left the farm he should quit the same ac- 
 cording to the times of entry as aforesaid, and the rent was reserved 
 half yearly at Michaelmas and Lady-day; held that a notice to quit deli- 
 vered half a year before Lady-day, but less than half a year before 
 Candlemas was good, the taking being in substance from Lady-day with 
 a privilege for the incoming tenant to enter on the arable land at Can- 
 dlemas, for the sake of ploughing, C5"V. (c) 
 
 Under an agreement of demise dated in January of a dwelling house 
 and other buildings for the purpose of carrying on a manufacture, to- 
 gether with certain meadow, pasture, and bleaching grounds, water- 
 courses, t*fc. for a term of thirty-five years to commence, as to the- 
 meadow ground from the 25th of December last, as to the pasture from 
 the 25th of March next, and as to the housing mills and all the rest of 
 the premises from the 1st of May, reserving the first half year's rent on 
 the Day of Pentecost, and the other half year's rent at Martinmas; held 
 that the substantial subject of demise being the house and buildings 
 for the purpose of the manufacture which were to be entered on the 
 1st of May, that was the substantial time of entry to which a notice 
 to quit ought to refer, and not to the 25th of December when the in- 
 coming tenant had liberty of entering on the meadow, which was 
 merely auxiliary to the other and principal subject of demise. Notice 
 to quit served one of two tenants en the premises, who held under a 
 
 (a) a East's V 3"?. (i) IbiJ. 38;. (<) 6 East. 1:0.
 
 Sect. I.] tcherein of Notice to quit. log 
 
 joint demise, is evidence that the notice reached the other who lived 
 elsewhere (a). 
 
 So, by special custom, three months' notice, or twelve months', will 
 be the proper notice .b). 
 
 As by the custom of London, where a tenant under the yearly rent 
 cf 40/. is entitled to a quarter's notice to quit ; but a tenant above that 
 rent must have half a year's notice (c). 
 
 The custom of the country is also admissible evidence to explain th 7 
 nature of the holding, as whether a general holding from Michael,;-:. s 
 means old or new Michaelmas ($). 
 
 Difficulties frequently arise in respect to ascertaining the commence- 
 ment of the term, and cases occur in the books wherein reasonable no- 
 tice has been held to be sufficient ; whereas, in other instances it has 
 been decided that the half year's notice that the law requires is indis- 
 pensable. 
 
 Thus, where the lessor of the plaintiff in an ejectment could not 
 prove the time when the term commenced, and the tenant proved it to 
 be different from the time to quit mentioned in the notice, the plaintiff 
 was nonsuited [e] . 
 
 But notwithstanding, where the notice was given on the 30th of Sep- 
 tember, being the day after Michaelmas-day, to quit at Lady-day follow- 
 ing, Mr. J. Heath ruled die notice sufficient: this was probably on 
 the principle of its being reasonable notice : and what is reasonable is 
 matter of circumstance {/)• 
 
 So, it is said to have been ruled at Nisi Prius, that where notice to 
 quit has been served on the tenant, and the landlord being ignorant of 
 the time when the tenancy commenced, has given the notice to quit at 
 the wrong time, that is, not at the end of the year, that the tenant 
 when the notice is serve! ought to inform the landlord of his error and 
 mention the true time (g;. 
 
 The rule however is otherwise ; for if notice to quit at Midsummer be 
 given to a tenant holding from Michaelmas, he may insist on the insuf- 
 ficiency of the notice at the trial of an ejectment though he did not 
 make any objection at the time that it was served ; but said " I pay 
 rent enough alreadv, and it is hard to use me thus •" for the expression 
 
 is merely that 01 an angry man 
 
 h\ 
 
 But a notice to quit at Michaelmas served personally on the tenant, 
 who made no objection at the rime, is prima facie evidence from whence 
 a jury may find that the tenancy commenced at that period (i). 
 
 So if half a year's notice requires a tenant io quit at the same time of 
 the year at which he has usually paid r nt, and he does not, on receiving 
 it, object to the time, this is sufficient evidence that the year of his te- 
 nancy determines at the time mentioned in the notice (£). 
 
 (a) 7 East. 551. (// I> ake's R. 5. (■) I Skin. 649. (-■') Esp. R. 266, 
 
 (O1T.R.161. (/) F.?p. N.P. 4 ',o. (-) 1 BLR. 535. Esp. N. P. 461. 
 
 (/ ; 4 T. R. 360. : 3 East. 4 oj. : Cam r b. 647. (Z) 2 Taunt. ic>
 
 1/0 Of Tenants from Year to Year, [Chap. VII. 
 
 But a notice to quit if not served personally upon the tenant in 
 possession, is no evidence to prove the commencement of the te- 
 nancy [a). 
 
 A notice was given on the 2 2d of March, by a landlord to his tenant 
 to quit at the expiration of the current year. A declaration in eject- 
 ment, laying the demise on the first of November, was on the 1 6th of 
 January following served upon the tenant, who at the time made no ob- 
 jection to the notice to quit, but said he should go out as soon as he 
 could fit himself. This was held to be prima facie evidence, that the 
 tenancy commenced at Michaelmas, and was determined before the day 
 of the demise (b). 
 
 Where a house and land are let together, to be entered upon at dif- 
 ferent times, and it docs not appear from the terms of the demise from 
 what time the whole is to be taken as being let together; it is a ques- 
 tion of fact for the jury which is the principal, and which the acces- 
 sorial subject of demise, in order that the judge may decide whether a 
 notice to quit the whole was given in time (c). 
 
 In an ejectment cause, a point was raised, whether a notice to quit 
 was sufficient ? The taking was proved to be from old Michaelmas to 
 old Michaelmas, and the notice was general to quit at Michaelmas. 
 Heath J., on an objection to the notice as not being sufficiently certain, 
 cited a AfS. case from his note-book, in which a similar notice was 
 held good, and overruled the objection (d). 
 
 A lease of lands by deed since the new stile, to hold from the feast 
 of St. Michael must be taken to mean from new Michaelmas, and cannot 
 be shewn by extrinsic evidence to refer to a holding from old Michael* 
 mas ; and a notice to quit at old Michaelmas, though given half a year 
 before new Michaelmas, is bad (>). 
 
 It has been holden, that a notice to quit at Lady-day was prima facie 
 evidence of a holding from Lady-day to Lady-day, till the contrary were 
 shewn (/). 
 
 So, a notice delivered to a tenant at Michaelmas, 1795, to quit " at 
 Lady-day which will be in the year 1795," was holden to be a good no- 
 tice to quit at Lady-day, 1 796 ; for the intention was clear, and 1795 
 shall be rejected as an impossible year (g). 
 
 Indeed where the notice was to " quit possession of the rooms or 
 apartments which you now hold of me, on the 25th of March, or the 
 3th day of April next ensuing," Lord Kenyon held that it was sufficient 
 notice to the tenant to quit if he received it six months before the end 
 of the tenancy ; the notice here was intended to meet an holding com- 
 mencing cither at old or new Lady-day, and at whichsoever day it actually 
 commenced, the notice was calculated to meet it, being given on new 
 Alichaclm as-day, and the demise laid after the 8th of April (h). 
 
 (a) 3 Campb. 388. (b) 2 Campb. 559. (c) 11 East, 498. 
 
 (it) Glouc. Sum. Ass. 1800. T.'s M. S. S. (e) n East. 312. 
 
 if) 1 Tr. 161. fe) 7 T. R. 8.;. (h) 4 Esp. R. 6.
 
 Sect. 1-1 wherein of Notice to quit. 171 
 
 So, where the premises in question were part of a considerable estate 
 which the plaintiffhad demised, and the defendant not having taken them 
 of him, but of his tenant, the time at which the tenancy commenced 
 was unknown to the plaintiff, who gave the following notice to quit : 
 « William Butler, 
 
 " Take notice, that I hereby require you to quit and deliver up to 
 me the possession of the house and premises you hold of me, situate 
 in Rofe and Crown Court, Moorjields, in the parish of St. Leonard, Shore- 
 ditch, in the county of Middlesex, at the end and expiration of the cur- 
 rent year of your tenancy mereof, which shall expire next after the end 
 of one half year from the date hereof. Dated this 20th day of June, 
 1 796. J. Phillips" 
 
 Lord Kenyan held this notice to be sufficient to entitle the plaintiff to 
 recover possession, notwithstanding that no particular day was men- 
 tioned . and the plaintiff had a verdict (a). 
 
 Although the tenant may insist on the insufficiency of the notice at 
 the tri-d of an ejectment, and if he prove another commencement of 
 bis term than that which it mentions, may defeat the plaintiff of his 
 right to recover, yet if lie disputes the time when his tenancy com- 
 menced, that the notice to quit does not correspond with it, it is in- 
 cumbent on him to shew the true commencement of his tenancy (l?) ; 
 for it is sufficient for the plaintiff to prove his having given six months' 
 [half a year's] notice to quit, and that the ejectment has been brought 
 after that time was expired (e). 
 
 So, where a tenant being applied to respecting the commencement 
 of his holding, informs the party that it begins on a certain day, and no- 
 tice to quit on that day is given at a subsequent time, the tenant shall 
 he bound by the information which he so gave, and not be permitted to 
 shew that in fact it began at another period ; and in such case, it makes 
 no difference, whether the information so given proceeded from mis- 
 take or design, as it has equady the mischief of leading the landlord 
 into error, and inducing him to proceed to recover the possession of the 
 term, the commencement of which he had taken from the defendant's 
 own information (d). 
 
 Demise from A to B. for twenty-one years, if both should so long 
 live ; but if either should die before the end of the said term, then the 
 heirs, executors, &c of the person so dying should give twelve months' 
 notice to quit, C5V. Held that the '.case could only be determined by 
 twelve months' notice given " by the representatives of the party dying 
 before the end of the term •," and consequently that such notice given 
 by the lessor to the representatives of the lessee (who died during the 
 term) did not determine it e). 
 
 If premises are taken " for twelve months' certain and six months' 
 
 (a) 2 F.sp. R. ;3 9 . .;) 4 T. R. 360. (.-) 4 E? r . R. 7. 
 
 Fs P .R.6 ? <. (0 Willcs, 43- 
 
 J i "}
 
 17- Of Tenants from Year to Year r , [Chap. I'll. 
 
 notice to quit afterwards," the tenancy may be determined by a six 
 months' notice to quit expiring at the end of the first year V. 
 
 Where a power is given to a party to determine a lease on giving a 
 notice in writing, he cannot determine it by rivisv- a parol notice (b). 
 
 A parol notice, it should seem, would be sufficient under a parol de- 
 mise [c ; though in ether cases it should be in writing (d). 
 
 Although a lease of tythes cannot be without c.-: r sd, vet a parol agree- 
 ment for retaining tythes must be determined by a notice, with analogy 
 to the notice given in a holding of land (e) 
 
 Where three are three-jcint-trustees of an estate, notice to quit or 
 discontinue the possession given by twe is bad, even though given in 
 the name of the third, and the third trustee afterwards adepts it and 
 joins in the demise in ejectment (f). 
 
 But where there are two tenants of premises held in common, notice 
 to one is sufficient (°). 
 
 Such notice should be clear and certain in its terms, and not ambigu- 
 ous or optional. 
 
 A farm was leased for twenty-one years at a rent of i3o/. per an- 
 num, consisting, as described in the lease, of the Town Barton, and 
 its several parcels described by name, at the rent of 83/.; other closes 
 named, at other rents, and the Shippen Barton and its several parcels 
 described by name at another rent; with a power reserved to either 
 party to determine the lease at the end of fourteen years, on giving two 
 years' previous notice. It was held that a notice by the landlord to his 
 tenant to quit " Town Barton, &c." agreeably to the terms of the co- 
 venant between them at the end of the fourteenth year of the term, 
 given in due time, was sufficient; for the Town Barton meant Town 
 Barton cum sociis ,- — otherwise, as there was no power to determine the 
 lease as to part only, the notice could have no operation at all (/:'. 
 
 Where a house, lands, and tythes are held under a parol demise at a 
 joint rent, a notice to quit " the house lands and premises with the ap- 
 purtenances," includes the tythes, and is sufficient to put an end to the 
 tenancy (*'). 
 
 If a notice to quit be in these words, « I desire you to quit, or else 
 that you agree to pay double rent," the tenant having an option, the 
 notice would not be sufficient (k). 
 
 But where notice in writing was served on a tenant and was in the 
 following words, " I desire you to quit possession on Lady-day next, or 
 I shall insist upon double rent ;" the Court held it to be sufficiently po- 
 sitive, the latter words were added only by way of threat of the conse- 
 quence of holding over the possession [I), 
 
 ( - Camp'). 573. (I) Willes, 43- (-') 3 Bur. 1609. 131. R. 533. 
 
 I Vid« 5 Esp. 195, que et. (/) 1 Be?. & Pul. 465. 2 Bro. C. C. 161. 
 
 (/) 5 Esp. 149. (g) 5 Esn. 196. (7.) 14 East. % 45 . 
 
 {■■'j 3 Casrp. 71, (7; Dou£- 176. (/) Ibid.
 
 Sect. I.] wherein of No/ ice to quit 173 
 
 It is not necessary that a notice to quit should be directed to the te- 
 nant in possession, if proved to be delivered to him at the proper time. 
 
 Therefore, where notice was given on the 29th of September, and was 
 in the following words : 
 
 " Take notice that you quit possession of the rooms and apart- 
 ments which you now hold of me, on the 25th day of March or the 
 Sth day of April next ensuing. 
 
 (Signed) « J. Mattheiuson" 
 
 This notice was not directed to the defendant ; but it was proved to 
 have been served on him on the 29th of September. 
 
 Lord Kenyan said, that the notice to quit was, in point of form, good ; 
 and that it was sufficient to shew that the defendant was the tenant to 
 the lessor of the plaintiff, which was necessary in all cases of ejectment 
 by a landlord against his tenant, and had been done here; and that the 
 service was on him in that character (a). 
 
 The delivery of the notice to quit to the servant of the tenant at his 
 dwelling-house, to whom the nature of it was explained, though such 
 dwelling-house was not situated on the premises and it did not appear 
 to have come to the tenant's hands, is strong presumptive evidence that 
 it reached him, which may be rebutted by the evidence of the ser- 
 vant [b). 
 
 But the mere leaving of a notice to quit at the tenant's house, without 
 further proof of its being delivered to a servant, and explained, or that 
 it came to the tenant's hands is not sufficient to support an ejectment (c\ 
 
 If a landlord receive rent due, after the expiration of a notice to quit, 
 It is a waiver of that notice. But if the money had not been received 
 as rent, but as a satisfaction for the injury done by the tenant in continu- 
 ing on his late landlord's premises as a trespasser, then the late landlord 
 might have recovered in ejectment (d). 
 
 A landlord of premises about to sell them, gave his tenant notice to 
 quit on the nth of October, 1806, but promised not to turn him out 
 unless they were sold, and not being sold till February, 1 807, the te- 
 nant refused on demand to deliver up possession, and on ejectment 
 brought, it was held that the promise which was performed was no 
 waiver of the notice, nor operated as a license to be on the premises, 
 otherwise than subject to the landlord's right of acting on such notice 
 if necessary, and therefore that the tenant not having delivered up pos- 
 session on demand after a sale, was a trespasser from the expiration of 
 the notice to quit (e). 
 
 Though notice to quit is in general waived by the receipt of rent due 
 subsequent to such notice, yet the mere acceptance of rent by a land- 
 lord subsequent to the time when the tenant ought to have quitted ac- 
 cording to the notice given him for that purpose is not itself a waiver, 
 
 (a) 4 Esp. R. 5. (1) 4 T. R. 464. (<■) 5 Esp. 153. 
 
 (d) 6 T. R. %v>, 1 Bl. R. 311. (0 10 E«st, 13.
 
 174 Of Tenants from Year to Year, [Chap. VII. 
 
 on the part of the landlord, of such notice ; but matter of evidence 
 only to be left to the jury, under the circumstances of the case: for 
 the landlord might possibly have accepted the rent under terms or made 
 an express declaration that he did not mean to waive the notice, and 
 that notwithstanding his acceptance or receipt of the rent, he should 
 still insist upon the possession; or fraud or contrivance might have been 
 practised on the part of the tenant in paying it. — The question there- 
 fore, in such cases, is in ;uo ammo the rent was received, and what the 
 real intention of both parties was {a . 
 
 Where rent is usually paid at a banker's, if the banker, without any 
 special authority, receives rent accruing after the expiration of a notice 
 to quit, the notice is not thereby waived [b]. 
 
 Where a landlord gave notice to quit different parts of a farm at dif- 
 ferent times, which the tenant neglected to do in part, in consequence 
 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 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 c). 
 
 So if a landlord gives notice to his tenant to quit at the expiration of 
 the lease, and the tenant held over, the landlord is entitled to double 
 rent ; and a second notice delivered to the tenant after the expiration 
 of such notice " to quit on a subsequent day or to pay double rent," is 
 no waiver of the first notice, or of the double rent which has accrued 
 under it (d). [The circumstance of the double rent having accrued 
 under the first notice, differs in this case from that cited ante from 
 Doug. I'jC), where an option was clearly given."! ,e . 
 
 Where a second notice was given to a tenant to quit at ATichaelmas, 
 1 8 1 1, it was held a waiver as to him of a former notice given to the 
 original lessee (from whom he claimed by assignment) to quit at 
 Michaelmas 1810 if). 
 
 Where one in remainder, after the expiration of an estate for life, 
 gave notice to the tenant to quit on a certain day, and afterwards 
 accepted of half a year's rent; such acceptance being only evidence of 
 holding from year to year, is rebutted by the previous notice to quit, and 
 therefore the notice remains good (g). 
 
 But when three months' notice was given where the rent was reserved 
 quarter 1 ;/, 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 (h). 
 
 00 Cowp. 24J. (b) 2 Campb. 386. (.-) 2 East's R. 237. (i) 3 Campb. 117. 
 
 (0 1 T. R.53. if) 16 East. 53. (V) Ibid. 161. (k) Esp. R. 266.
 
 Sect. I.] wherein of Notice to quit. \js 
 
 So, if at the end of the year (where there has been a tenancy from 
 year to year) the landlord accepts another as his tenant, without any 
 surrender in writing, such acceptance shall be a dispensation of the 
 notice to quit (a). 
 
 Notice to quit, however, is not necessary in every case. Thus when 
 a lease is determinable on a certain event, or at a particular period, no 
 notice to quit is necessary, because both parties are equally apprized of 
 the determination of the term (£). 
 
 So, if the tenant have attorned to some other person, or done some 
 other act disclaiming to hold as tenant to the landlord, in that case no 
 notice is necessary (c). Indeed if a tenant put his landlord at defiance, 
 his landlord may consider him either as his tenant or a trespasser, and 
 in the latter case need not give him a notice to quit before he brings his 
 ejectment (d). 
 
 But a refusal to pay rent to a devisee in a will which was contested is 
 not such a disavowal of the title as to empower such devisee to maintain 
 an ejectment without giving a previous notice (<"). 
 
 A mortgagee may recover possession against the mortgagor, or a 
 tenant under a lease from the mortgagor posterior to the mortgage, 
 without notice to quit ; for when the mortgagor is left in possession, 
 the true inference to be drawn is an agreement that he shall possess the 
 premises at will in the strictest sense and therefore no notice is ever 
 given him to quit (f). 
 
 So, a mortgagee need not give notice to a tenant to quit before 
 bringing his ejectment, if he means only to get into the receipt of the 
 rents and profits of the estate, though the mortgage be made subsequent 
 to the tenant's lease. But in such case he shall not be suffered to turn 
 the tenant out of possession by the execution. In the present case the 
 lease was only from year to year, and with respect to the last year, 
 might be considered as a lease subsequent to the mortgage ; but the 
 Court held that it would have been the same if the lease were for a long 
 term (g). 
 
 Wherever the lessee LA- under a void demise, no notice is neces- 
 sary; as in the case just me.itioned of a lease by a mortgagor after the 
 mortgage (/;), 
 
 So (?'), wkere an e : ectment for lands in Surry, the case was that 
 Elizabeth Compton being entitled to a copyhold of inheritance held of the 
 manor of Kennifigton, was admitted to it in 1767; in 1780 Mr. C. her 
 husband granted a lease to M. for forty years, (under whom the defend- 
 ant claimed) without the consent or the joining of his wife and there- 
 fore contrary to stat. 32 H. 8. c. 28. s. 3. In 1782 Mrs. C. died, leav- 
 ingher husband and an only daughter (now the lessor of the plaintiff) 
 
 (a) 2 Esp. R. 505. (*) 1 T. R. 54, x6j. (c) Bull. N. P. 96. Esp. N. P. 463- 
 
 (</) Peake's R. 197. (<?) Ibid. (/) Doug. 2Z. (g) Bull, N. P. 96. 
 
 (i) 1 T. R. 95. Esp. N. P. 463. (0 Ib »d. 464- 7- T. R. 85.
 
 176 Of Tenants from Year to Year, 8$c. [Chap. VII. 
 
 her heir at law : Mr. C. received the rent till the time of his death in 
 1788, and Mrs. A. the lesser of the plaintiff, also received it after his 
 death, as reserved by the lease, till 1789-, when on discovery that 
 the lease was void under stat. 32 //. 8. and also not warranted by the 
 custom of the manor, the present ejectment was brought without giving 
 notice to quit. For the defendant it was insisted that the lease was 
 good, cr at most only voidable, and confirmed by acceptance of 
 rent by Mrs. A the plaintiff; but that even if she had not confirmed 
 the lease, she had made the holding a tenancy from year to year, and 
 therefore should have given notice to quit; but both points were over-ruled 
 by Mr. J. Gcu/d, who tried the causes, and the plain tin recovered (a). 
 
 The preceding case at Nisi Priur, however, was objected to by 
 Lord Kerycn, who observed that it passed perhaps without much 
 consideration, and cannot be nut in the balance against all the other 
 decisions , I). 
 
 It may :;g:.in be observed, that where the estate or lease is ipso facto 
 void by the condition or limitation, no acceptance of the rent after can 
 make it to have a continuance; otherwise it is of an estate or lease void- 
 abb; by entry {/) : and this distinction is, because the acceptance of rent 
 in the one c,:se cannot make a new lease, and the old one was deter- 
 mined ; but the acceptance of the rent in the other, is a sufficient 
 declaration that it is the lessor's will to continue the lease, for he is not 
 entitled to the rent but by the lease (d). 
 
 It need scarcely be again observed that where the relation of landlord 
 and tenant does not subsist, notice to quit is out of the question. 
 
 Thus the receipt from the cestuique of a quit-rent reserved on the 
 grant of a copyhold dees not constitute a tenancy from year to year, so 
 as to entitle bis widow to notice to quit; the rent not being received as 
 between landlord and tenant, but attributable to another consideration : 
 for as to the question of tenancy from year to year, the payment of rent 
 cannot be evidence of a holding from year to year, if, as in the case of 
 a conventionary rent like this, it be not a payment of rent as between 
 landlord and tenant (e). 
 
 In the case of ATJdmay v. Shirley, Dorchester Summer Assizes, l8o6\ 
 where the lessor of the plaintiff claimed thirty acres of leasehold, on a 
 lease settled on him long before extinct, on which a rent of 13/. 4J. was 
 reserved, it appeared that after the lease had run out, the steward not 
 knowing that, had continued regularly to receive the 13X. j\d. on the day 
 on which it was reserved by the lease; wherefore it was objected that 
 this payment of rent created a tenancy from year to year, and that there 
 ought to have been a notice to quit. But, however, Thompson B. 
 held that it we.s not necessary, that no contract as of a tenancy from 
 year to year could be presumed, that the payment was made alio intuitu, 
 
 (a, Doug. 5 3. n. [i 7 ] 54. n. {!,) 7 T. R. 85. (c) Co. Lit. 215. Willcs, 169= 
 
 (d) Co. Lit. a. 1. (V) 3 East's R. 560.
 
 Sect. II.] Of Tenants for a less Term, §c. 177 
 
 and that the case fell within the principle of that determined in 3 East 
 260, — (cited 10 East, 165 ) 
 
 Tenant from year to year underlet part of the premises, and then 
 gave up to his landlord the part remaining in his own possession, with- 
 out either receiving a regular notice to quit the whole, or giving notice 
 to quit to his sublessee, or even surrendering that part in the name of 
 the whole. The landlord cannot entitle himself to recover against the 
 sub-lessee-, (there being no privity of contract between them) upon 
 giving half year's notice to quit in his own name, and not in the name 
 of the first lessee ; for as to the part so underlet, the original tenancy 
 still continued undetermined (a). 
 
 Section II. Of Tenants for a less Term than from Year 
 to Year : wherein of Lodgings. 
 
 We have had occasion before to observe, that any one possessed of a 
 certain quantity of interest may alienate the whole or any part of it s 
 unless restricted from so doing by agreement of the party from whom 
 he derives that interest or estate or by the terms upon which he 
 takes it. 
 
 Upon the same principle he may demise it or any part of it for any 
 term shorter than that of which he is possessed; and when part of 
 a messuage or tenement is let to another, it is called a lodging or 
 lodgings. 
 
 Of Lodging!. — Lodgings may be let in the same manner as lands and 
 tenements: in general, however, they are let either by agreement in 
 writing between the landlord and tenant, or by parol agreement. 
 
 It is a general rule in the case of a yearly tenancy, that notice to quit 
 must be half 2 year before the expiration of the year; the case of lodg- 
 ings depends upon a particular contract, and is an exception to the 
 general rule. The agreement between the parties may be for a month 
 or less time, and there much shorter notice would be sufficient 
 where the tenant has held over the time agreed upon, than in the other 
 case (b). 
 
 The whole question depends upon the nature of the first contract : 
 so that if the parties have agreed that the tenant shall hold for a term 
 certain, no notice of course can be necessary (c) ; but if the tenant 
 hold for no particular period, reasonable notice must be given, which 
 is regulated generally, if not always, by the local custom of the par- 
 ticular place or district, which for the most part requires the same space 
 of time for notice as the period for which the lodgings are taken, as a 
 
 (a) 14 East. *34- (0 I T - R - ifo- W Had, 
 
 N
 
 173 Of Tenants for a less Term [Chap. VII. 
 
 week's notice, where taken for a week ; a month's where taken for a 
 month, and so forth; but this is not always the case, for it is not 
 always necessary (it is presumed) that a quarter's notice should be 
 given where the rent is paid quarterly, and it is understood to be a 
 quarterly taking, for a month's notice is sometimes customary, and 
 which probably a court and jury would think generally reasonable (a). 
 
 If a house, originally entire, be divided into several apartments, with 
 an outer door to each apartment, and no communication with each 
 other subsists, in such case the several apartments are considered in law 
 as distinct mansion-houses. But if the owner live in the house, all the 
 untenanted apartments shall be considered ft parts of his house. Yet, 
 if there be two several tenements originally and they become inhabited 
 by several families, who make but one avenue for both, and use it pro- 
 miscuously, the original severalty is so far recognized and regarded, that 
 they continue to be severally rateable to the poor (£). 
 
 These lodgings constitute such an interest according to the duration 
 of the term, that to many purposes the lodgers are considered in law in 
 the light of householders, and enjoy the same protection and greater 
 immunities, for they are not compellable to serve parish offices. 
 
 As to the question, what shall be deemed the house of the party 
 within the meaning of domus mansionalis, it turns upon the fact of there 
 being an outer door or not; for every house certainly must have an 
 outer door. 
 
 r ihus chambers in inns of court and in colleges, which have each of 
 them an outer door that opens upon the common staircase, have been 
 held, in cases of burglary, to be the houses of the respective occupiers. 
 From the nature of these buildings, they are all as several houses, and 
 have separate outer doors which are at the extremity of the obstruction ; 
 because the staircase is no outer door : again, they are enjoyed as sepa- 
 rate property ; in Lincoln* Inn they have separate estates of inheritance, 
 in the others they have estates for life, and in colleges as long as they 
 reside. So, if that which was one house originally comes to be divided 
 into separate tenements, and there is a distinct outer door to each, they 
 will be separate houses, as Newcastle House. The distinction therefore 
 can only be between several outer doors, and one outer door (c). 
 
 Therefore if one hire a part of a house to lodge in, which is actually 
 divided from the rest, and have a door of his own to the street, a bur- 
 glary committed therein may be alledged in domo mansionali of such per- 
 son (d) ; and even if the owner occupy a shop or cellar in the house, 
 unless he sleep therein, it is the mansion of each lodger, although 
 there be but one outer door ; but it is otherwise, if the owner sleep 
 therein (e). 
 
 (a) i Esp. R. 94. (^ $ Mod. 214. (c) Cowp, 8. 
 
 (<0 I Haw. i\ C. 164. s. is. («) Ibid. n. b. 
 
 3
 
 Sect. I.I.} than from Year to Year. — Of Lodgings, 170 
 
 A house, in fact, wherein a man dwells for only part of the year, or 
 which he has actually hired, but not moved into ; or a chamber in an 
 inn of court, or a house hired by a man's wife, for her separate resi- 
 dence without his knowledge, <c for it is the husband's house," are all of 
 them sufficient to satisfy the words domus mansionalis (a). 
 
 But if the person had taken an apartment as a shop or workhouse, for 
 his use in the day-time only, it seems that a felony therein cannot be 
 alledged to have been committed in the mansion-house : not of him that 
 lets it, because it is severed by the lease from that part of the house 
 which belongs to him, nor of him to whom it is let, because he does 
 not take it to lodge in. But if he sleep in any part of the building, 
 however distant from the shop, it may be alledged to be his mansion- 
 house; provided the owner does not sleep under the same roof also (£). 
 
 So where a burglary is committed in the apartments of one who 
 lodges in a house, the circumstance of the owner living in it, or occu- 
 pying only a shop or cellar, in which he does not sleep, makes a very- 
 material difference as to the form of the indictment: for in the latter 
 case, the lodger has the outer door entirely to himself, and the burglary 
 in such case must be laid in the house of the lodger •, but it is other- 
 wise in the former case, for there it must be laid in the house of the 
 owner (c). 
 
 If with intent to rob a house, a person takes lodgings in it, and then 
 fall on the landlord and rob him, such person is guilty of burglary (d). 
 
 As to the stat. 39 Eliz. t. 15. making it a capital felony to commit a 
 larceny of goods to the value of 5s. in a dwelling-house in the day-time, 
 it seems agreed that a chamber in one of the inns of court wherein a 
 person usually lodges, is properly a dwelling-house within the statute; 
 but a lodging in Whitehall or Somerset House is not (e). 
 
 But this privilege of a lodger's tenement being regarded as his man- 
 sion-house, extends only to the purposes of protection to a man and 
 his family, and is to be taken strictly (/). A bailiff, therefore, in the 
 execution of mesne process may break open the door of a lodger, hav- 
 ing first gained peaceable entrance at the outer door of the house ; for 
 the rule, that every man's house is his castle, must be confined to the 
 breach of windows and of outer doors intended for the security of the 
 house against persons from without endeavoring to break in (3). 
 
 For the protection of landlords against a species of pillage to which 
 persons letting ready furnished lodgings are much exposed, it being 
 doubted whether the taking things in a lodging-room was more than a 
 breach of trust at common law, because of their being lent to a person 
 and lawfully in their possession, therefore the taking away from such 
 
 (a) 1 Haw. P. C. 163. (t) Ibid. 164. s. 16. (0 Cowp. 8. 
 
 {J) Haw. P. C. 161. s. 5. (•') * Haw. P. C. 500. s. 97X10. Car. 47. 
 
 ( f) Co'.vd. 1. (V) Fost. C. L, tit. Homicide, c, 8. r. 2?. 
 
 M %
 
 180 Of strict Tenants at Will. [Cliap. VII. 
 
 lodgings, with an intent to steal, embezzle, or purloin any chattel, 
 bedding or furniture, which by contract or agreement they are to use, 
 or shall be let to them with the said lodgings, is made larceny and fe- 
 lony (a). — A man and his wife cannot both be guilty of the same larceny 
 in robbing their lodgings ; for if they both had committed it together, 
 the woman must be acquitted, for she is under his coercion. If the 
 lodgings be let jointly, it is the taking of the husband only (£). 
 
 In respect to Jetting houses, though, as has been before observed (c), 
 there is no distinction in reason between houses and land, as to the 
 time of giving notice to quit in yearly tenancies, it being necessary that 
 both should be governed by one rule, and that where rent is reserved 
 quarterly, it does not dispense with the regular six months notice to 
 quit required by law, but is merely a collateral matter (^/) : yet in the 
 case of a house being let for a shorter term than a year, the holding 
 assimilates itself to that of a lodging : therefore where a house was 
 taken by the month, it was held that a month's notice was sufficient ; 
 for a notice to quit has reference in all cases to the letting (e). 
 
 A tenant from week to week, continuing in possession after the ex- 
 piration of a notice to quit and demand made, is not liable to an action 
 on the stat. 4 Geo. 3d. c. 28. for double value (/). 
 
 If the lodgings be furnished, it may be as well to have a schedule of 
 the goods they contain affixed to the agreement, if there be one in 
 writing ; in the same manner as in the case of a lease of a house with 
 goods (g). 
 
 Section III. Of strict Tenants at Will. 
 
 Although courts of law have of late years leaned as much as pos^ 
 sible against construing demises (A 1 ), where no certain term is men- 
 tioned, to be tenancies at will, but (as we have just seen) have rather 
 held them to be tenancies from year to year so long as both parties 
 please, especially where an annual rent is reserved (i) ; and although it 
 is said, that in the country, leases at will in the strict legal notion of 
 a lease at will, being found extremely inconvenient, exist only notion- 
 ally, the observation, Mr. Hargrove thinks, means, not that estates at 
 will may not arise now as well as formerly, but only that it is no longer 
 usual to create such estates by express words, and that the Judges in- 
 cline strongly against implying them (k). 
 
 Tenant at will is where lands or tenements are let by one man to 
 another, to have and to hold to him at the will of the lessor, by force 
 of which lease the lessee is, in possession. In this case, the lessee is 
 called tenant at will, because he hath no certain nor sure estate, for the 
 
 (a) Sat. 3 W. & M. c. 9. s. 5. (J,) 1 Haw. P. C. 137. n. 3. (;) 1 T. R. 16?. 
 (.-/) Esp. 166. (.<■) Ibid. 94. (/) 2 Campb. 453. (g) Vide ant:, 142, : 
 
 (b) 1 Bl. Com, 147. (;) 3 Bur. R. 1609. (I) Co, Lit. 55.
 
 Sect. III.] Of strict Tenants at JVUl 131 
 
 lessor may put him out at what time it pleaseth him. But every lease 
 at will must be at the will of both parties (a). 
 
 If a termor grants the land generally, the grantee is but tenant at 
 will ; for it does not appear that the grantor meant to pass his whole 
 interest, and this is enough to satisfy the grant. — But if a termor de- 
 vises the land, all his term passes •, for the devisee cannot be tenant at 
 will, because the devisor must die before the devise can take effect ; 
 and one cannot be tenant at will to a dead man (£). 
 
 If one lease for years, with a proviso, that lessor may enter at his 
 will, it is a lease at will (c). 
 
 So, if one demises a tenement to another excepting the new house 
 for his habitation, when he pleases to stay there, and at other times 
 for the use of the lessee ; the lessee has the new house as tenant at 
 will (</). 
 
 So, if one give to another licence to take the profits of his land 
 without mentioning for how long a period, or reserving an annual rent, 
 it shall be a lease at will (e). 
 
 A man who enters and enjoys under a void lease, and pays rent, is a 
 tenant at will, and not a disseisor (f). 
 
 But if a man enter by colour of a grant or conveyance which was 
 void and did not stand with the rule of law j he shall be disseisor, and 
 not a tenant at will (g). 
 
 A mortgagor is in some respects strictly tenant at will, and in many 
 ■cases is like a tenant at will (,b). 
 
 Therefore if a mortgagee covenants that the mortgagor shall take th« 
 profits till default of payment ; or that the mortgagor and his heirs 
 shall take the profits, in the one case the mortgagor, and in the other 
 iiis heir after his death, shall be tenant at will (i). 
 
 But if mortgagee covenants 'that he will not take the profits till de- 
 fault of payment, and the mortgagor enters immediately ; he shall not 
 be tenant at will, but only at sufferance ; for it was not agreed that he 
 should take, but that the mortgagee should not take (k). 
 
 A mortgagor however is not properly a tenant at will to the mort- 
 gagee, for he is not to pay him rent : he is indeed as much if not 
 more like a receiver than a tenant at will ; though in truth he is not 
 either (/). He is only a tenant at will, because lie is not entitled to 
 the growing crops after the will is determined ; for the mortgagee may 
 bring his ejectment at any moment that he will ; and he is entitled to 
 the estate as it is with all the crops growing on it (m). 
 
 If tenant for years continues after his term, and his rent is paid and 
 accepted as before, it is said that he shall be tenant at will j but that 
 
 (a) Co. Lit. 55. (b) 1 Salk. 436. (V) Co. Lit. S5- a. (d) 4 Mod. 9. 
 
 (.•) 3 Salk. 223. (/) 1 Wi's. 176. (g) Com. Dig. tit. " Estates'" (H. 2.) 
 
 (i) 1 T. R. 382. (0 Com. Dig, ut ante (H. 1.) Cro. Jac. 660. 
 
 (/) Com. Dig. tit, « Estates" (H. 2.) (Q Dons- z8z, 3- (»<) 1 T - R - o^i- 
 
 7
 
 1 82 Of strict Tenants at Will. [Chap. VII. 
 
 while he so continues, till his rent is paid and accepted, he is tenant at 
 sufferance or rather at will. This however would be now construed to 
 be a tenancy from year to year (a). 
 
 When tenancy at will was more known than it is now, the relation 
 mignt be determined at any time ; not as to those matters which during 
 the tenancy remained a common interest between the parties ; but as to 
 any new contract the will might be instantly determined. When that 
 interest was converted into the tenancy from year to year, the law fixed 
 one positive rule for six months' notice ; a rule that may in many cases 
 h veiy convenient ; in others, as for instance, that of nursery-grounds, 
 most inconvenient (£). 
 
 if a tenant whose lease is expired is permitted to continue in posses- 
 sion, pending a treaty for a further lease, he is not a tenant from year 
 to yea', but so strictly at will, that he may be turned out of possession 
 wit? out notice (c). 
 
 A lessee at will may take a release of the inheritance, and thereby 
 his estate is enlarged ; or a confirmation for his life, upon which a re- 
 mainder may be dependant (d). 
 
 Where a lease is made at will, rent being payable quarterly, the lessee, 
 after a quarter of a year is commenced, may determine his v/ili, but 
 then he must pay that quarter's rent U) ; and if the lessor determine his 
 will after the commencement of a quarter, he shall lose his rent for 
 that quarter. So, if half yearly (f). 
 
 Tenant at will may be ousted also by express words, or by implica- 
 tion : as if lessor come upon the land, and say that lessee shall net 
 continue over, he may determine his will, though in the absence of 
 the lessee. But words off the land will nof, till notice to the lessee (g). 
 
 Any act of desertion, or which is inconsistent with an estate ?J 
 will, done by the tenant, operates as a determination of the esta 
 as assignment over to another, or commission of an act of waste [h). 
 
 If therefore tenant at will take upon him to make a lease for years, 
 which is a greater estate than he may make, that act is a disseisin [and 
 a determination of the will.] (/). 
 
 But though lessee at will make a lease to commence at a future day, 
 it does not amount to a determination, till the lease commences in point 
 of interest. So of an extent, till the liberate; and of outlawry, till 
 seizure (k). 
 
 Though a person let into possession under an agreement to purchase, 
 maybe considered as tenant at will, yet his admission of a fictitious lease 
 
 {a) Com. Die. tit. " Estates" (H. I. and 1. 1.) (b) 16 Ves. I. 57. 
 
 (<:) 2 I', .v.. R. 7 1 7. (,/) Com. Dig. ut ante (IT. 3.) 
 
 («.-) 3 Salk. 22%, 413. .; Mod. 79 1 Ld. Raym. 702. % Ibid. 1008. 
 
 (/ ) Corar. Dig. tit. " Estates" f H. 9.) {£) Ibid. (H. 6.) 
 
 (//; Ci i.isc's Dig. tit. im. s. 17. J Ju:% ^".355. b.n.12. Q) Cro. Car. JC4. 
 
 Si) Cora, Dip- ui ante.
 
 Sect. IV.] Of Tenants at sufferance. IS 3 
 
 by entering into the common consent rule is not a constructive determi- 
 nation of the will whereon an ejectment is maintainable (a). 
 
 But, though a tenant at will is at the will of both parties, the will 
 shall not be determined by every act [b,. 
 
 Thus, where a feme lessee at will takes husband, or a feme makes a 
 lease at will and takes husband, although the feme hath put her will in 
 her husband, yet it shall not be said to be a determination without the 
 election of the lessor or the husband (c). 
 
 In tenancies at will the rent becomes due in consideration of the oc- 
 cupation j which, it is said, must therefore be averred (d). 
 
 Tenant at will has an estate that he cannot forfeit for treason (e), 
 
 Sf.ction IV. Of Tenants at sufferance. 
 
 Tenant at sufferance is he who enters by lawful demise or title, and 
 afterwards wrongfully continues in possession : as if tenant pur outer 
 vie continues in possession after the death of thccestui que vie (f). 
 
 So, any one, who continues in possession without agreement, after 
 a particular estate is ended (g). 
 
 There is a great diversity therefore between a tenant at will and a 
 tenant at sufferance ; for tenant at will is always by right, whereas 
 tenant by sufferance entereth by a lawful lease, and holdeth over by 
 wrong (£). 
 
 But against the king there is no tenant at sufferance, for the king not 
 being capable of committing laches, such person will be an intruder (*). 
 
 So, if a guardian continue in possession after the full age of the heir : 
 he is not a tenant by sufferance, but an abator (£). 
 
 Mortgagee covenants that mortgagor shall quietly enjoy till default of 
 payment, and assigns : after assignment, mortgagor is only tenant at 
 sufferance ; for his continuing in possession does not turn the term to a 
 right (/). 
 
 (a) 13 East, 210. (i) Cro. Car. 303. (0 Ibid. 304. 
 
 (J) 1 Ld. Raym. 171. Salk. 20?. (*) 1 Wills. 176. (/) Co. Lit. 57. 
 
 (g) Com. Dig. ui ante. {h) Co. Lit. J 7. b. (j) Ibid. (i) Ibid, an 271. 
 
 (/) Salk. 245.
 
 C 184 ] 
 
 CHAPTER VIII. 
 
 Of the general Incidents to Leases. 
 Section I. Rent, when and how payable, 
 , Of Public Impositions, parochial and parliamentary. 
 Section II. Taxes. 
 Section III. Poors Rate. 
 
 Section I. Rent, when and how payable, $$c. 
 
 TN a preceding part of this work we have had occasion to explain the 
 -*- nature of rent, and the different kinds thereof. 
 
 It must be remembered, that a rent cannot at law issue out of a term 
 of years, but must come out of the reversion •, therefore, if a lessee 
 assign his term, he cannot distrain for the rent without expressly re- 
 serving a power for that purpose (a). 
 
 The reservation of rent ought to be certain ; for if a man demise, 
 rendering " after the rate of" 18/. per ann. while the lease continues, 
 it will be void ; for it does not appear what rent he shall pay in certain, 
 or at what time : wherein it differs from a contract for goods, for in 
 such case the jury may judge of the value (b). 
 
 Reservation of Rent.— As to what is deemed a good reservation of 
 rent, if a man makes a lease of Blackacre, to commence in fttturo, and 
 of Whiteacre, to begin inprasenti, rendering rent payable at Michaelmas 
 before the commencement of the term in Blackacre, this is a reservation 
 immediately, for it is but one entire rent, and as such is payable ac- 
 cording to the reservation c . 
 
 So it is, if a man grants a future interest in land ; as if it be a lease 
 for years to commence five years after the making of the lease, the 
 lessor may reserve a rent immediately, because this is a good contract 
 to oblige the lessee to pay, and the lessor may have an action of debt on 
 the contract, and may likewise have his remedy by distress for the arrears 
 when the lessor comes into possession id). 
 
 A lease of the vesture or herbage of the land, reserving rent, is 
 
 (a) 2 Wils. 375. (J) I Salk. l(2. 4 Mod, 79. (<■) Gilb. on Rents, 2J. 
 
 (d) Ibid.
 
 Sect. I.] Rent; reservation thereof . \$$ 
 
 good ; because the lessor may come upon the land to distrain the les- 
 see's beasts feeding thereon (a). — But a reservation of grass, herbage, 
 or other vesture of the land would be bad, because they are part of the 
 thing demised (b). 
 
 So, where by articles of agreement indented between A. and B. it is 
 covenanted and agreed, that A. doth let Blachacre to B. for five years, pro- 
 vided always that B. shall pay at Michaelmas and Lady-day 10/. by even 
 portions yearly ; this proviso is a good reservation of the rent, for as the 
 words amount to an immediate demise of the land, the rent, which is 
 but a retribution for the land, ought to be paid immediately ; and it 
 cannot be construed to be a sum in gross, because by the words of the 
 articles, (which being indented are the words of both parties,) it is to 
 be paid yearly (c). 
 
 A difference is here to be noted between a rent reserved entire in the 
 reddendum upon a demise of several things in the same lease, (for the 
 reservation shall be taken as one and entire) and where the rent is not 
 at first reserved entire, but upon the reservation is several and appor- 
 tioned to the several tilings 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 iox. and for the rest of the 
 houses the residue of the said rent of 5/. with a clause of re-entry into 
 all the houses for non-payment of any parcel of the rent ; this is but 
 one reservation of one entire rent, because all the houses were leased, 
 and the 5/. was reserved as one entire rent for them all, and the " viz.'' 
 afterwards does not alter the nature of the reservation, but only declares 
 the value of each house (d). 
 
 But if the lease had been of three houses, rendering for one house 
 3/., for another 2ox. and for the third 2 ox. with a condition to re-enter 
 into all for the non-payment of any parcel ; these are three several re- 
 servations, and in the nature of three distinct demises, for which the 
 avowries must likewise be several ; for each house in this case is only 
 chargeable with its own rent, the entire sum being not at first reserved 
 out of all the houses demised, and afterwards apportioned to the se- 
 veral houses according to their respective value, as in the former case •, 
 but the particular sums are at first reserved out of the several houses, 
 and therefore the non-payment of the rent of one house, can be no cause 
 of entry into another ye). 
 
 So, if one demises the scite and demesnes of a manor, and also the 
 manor itself, and all other lands and tenements thereunto belonging, 
 reserving for the said scite and demesnes and premises therewith letten 
 9/. this is not a joint, but a several lease, viz. one lease for the scite 
 and demesnes, and another for the residue of the manor, and the re- 
 servations also are several and distinct (/). 
 
 '/) Gilb. on Rents, a6 (0) Co. Lit, 47- (0 Gilb. on Rents, 3*. . {/) Ibid. j<, 
 
 :•, Ibid, ( /•) Ibid. 36, Cro.EUz.34i.
 
 186 Bent; reservation thereof. [Chap. VIII. 
 
 So, if a lease be made of two manors habendum, one manor for 2oj. 
 and the other manor for iox. these are several reservations; and each 
 manor is charged with its respective rent (a). 
 
 If the respective rents were equal sums, it would make no difference 
 it seems ; so as the words in the habendum make it as several leases. 
 
 But where one made a lease of a cellar for a year, and if at the end 
 of the year the parties should agree that the demise should continue, 
 then to have and to hold the same for three years, « rendering from 
 that time annually during the said term 40/." this is one entire reserva- 
 tion, as well for the first year as for the three years; for the words 
 dicto termino extend to both terms indifferently (/>). 
 
 As there may be several reservations in the same lease, by the words 
 of the parties, so there may by act of law : as where a lease is made to 
 a bishop in his public capacity, and J. S. reserving a rent ; the lessees 
 are not joint-tenants, but tenants in common, and therefore the reser- 
 vation must be several, and the reversion to which the rent is incident 
 must follow the nature of the particular estates on which it depends, 
 and therefore must be several also(^). 
 
 So, if there be two tenants in common, and they make a lease for 
 life, rendering rent, this reservation though made by joint words, shall 
 follow the nature of the reversion, which is several in the lessors ; and 
 therefore they shall be put to their several assises, if they be disseised, 
 as if they had been distinct reservations. — But if the reservation had 
 been of a horse, or hawk, or any other thing not in its own nature se- 
 verable, then, for the necessity of the case, the law admits them to join 
 in one assise (d). 
 
 Upon a surrender reserving rent, though the rent is not good by way 
 of reservation, yet it shall be so by way of contract. 
 
 If a lessee, however, simply covenant to pay such a sum yearly, 
 without mentioning it as a consideration of the demise of the premises, 
 it has been held to be not a rent, but a sum in gross (e). 
 
 In an action of debt on an agreement, it appeared that the plaintiff 
 covenanted by the agreement to grant a lease of certain premises upon 
 certain conditions therein specified and at a certain rent. The defen- 
 dant covenanted to pay a certain rent, and perform certain conditions 
 on which the lease was to be granted. The declaration averred that 
 the defendant had entered, upon a breach for non-payment of rent. 
 A former lease to one Edmunds had subsisted, at the expiration of which 
 that mentioned in the agreement as to be granted to the defendant, was 
 to commence; the declaration averred that Edmunds's lease had expired, 
 and that the defendant had entered; but not that any lease had been 
 made. There was also a count for use and occupation : — Upon tie. 
 murrer to the first special counts ; Lord Kenyan, C. J. said, " I have 
 
 ( Gilb. on Rent;, 36. {i) Ibid. (0 Ibid. 37- 
 
 (V) r.;<?. {,) i T. R. 44i-
 
 Sect. I.] Rent; reservation thereof. 187 
 
 always admired an expression of Lord Uardwicke £ that there is no 
 magic in words.' It appears that a rent was to become due on a certain 
 day mentioned : perhaps t T is money to be paid is not strictly to be called 
 rent, the relation of landlord and tenant not having then commenced : 
 but still the parties intended that this money should be paid, according 
 to the best construction I can give of the agreement. Collecting there- 
 fore the meaning of the parties, without encumbering myself with the 
 technical meaning of the word rent, I think the case is with the plain- 
 tiff. The other Judges agreed in opinion with Lord Kenyoti. They ob- 
 served that the conditions mentioned in the lease were the conditions of 
 sale at the auction at which it was bargained for. The intent seemed 
 to be that the defendant should after the determination of Edmunds's 
 lease, take possession and proceed to cover in the house. On the 
 house being covered in, the plaintiffs were to grant a lease •, but in order 
 to instigate the defendant to do this, he was to pay annually a certain 
 sum before the granting of the lease, equal to what he was to pay af- 
 terwards, the whole being denominated " rent." If that were not 
 meant, the covenant to pay rent was useless, for the lease, when made, 
 would certainly contain such a covenant. — The deed and conditions of 
 sale were very obscurely worded, though it appeared that the city of 
 London had used that form for upwards of a century (a). 
 
 Note also, a diversity between a reservation, which is always of a 
 thing not in esse, but newly created or reserved out of the land or te- 
 nement demised ; and an exception, which is ever of part of the thing 
 granted, and of a thing in esse [b). 
 
 Rent reserved upon a lease issuing out of copyholds and freeholds 
 (the lease of the copyhold being made with licence) was held good (c). 
 But the rent shall be considered as issuing out of the freehold only, as 
 in the case of rent issuing out of land and goods. 
 
 In a lease of lands, for which the lessor is bound to reserve the best 
 rent that can be gotten, he must reserve the best rent that can be gotten 
 at the time the lease is made, without any regard to a former lease in 
 which the rent might have been fairly reserved on account of money to 
 have been expended in improvements (d). 
 
 If there be an order, confirmed by parliament, that an indenture of 
 demise, upon which a rent was reserved, should be vacated and can- 
 Celled, and that a stranger should enter into the lands demised and re- 
 ceive the profits, yet the same rent in value granted by the lessee for 
 the better securing the rent reserved, is not discharged, although the 
 intention appears that there should be but one rent paid (e). 
 
 The rent must be reserved to the lessor himself, and not to a 
 stranger (f) ; for it ought to be made to him from whom the land 
 
 (a) City of London v. Dias, T. T. 41 G. 3. T.'s MSS. (4) Co. Lit. 47- : 
 
 (0Cro.Eliz.6aa. id) Esp.R, 8c. (<•) I Saund. 196. 
 
 (/)Co. Lit. 47, *43,b.
 
 i88 Rent; reservation of. [Chap. VIII. 
 
 passes; and where one reserves rent to a stranger, neither the heir nor 
 stranger shall have it (a). 
 
 Therefore, if a man, and B. his son, reciting that B. is his heir ap- 
 parent, let for year?, to commence after the death of the father, (who 
 was sole seised) and rendering rent to the said B. it will be void ; for a 
 reservation to him by his proper name, and not to him as heir, is the 
 same as if it were to a stranger. — But the king may make a reservation 
 of rent to a stranger (b). 
 
 So, if a lease tor years be made, rendering rent to the heirs of the 
 lessor, the reservation, it is said, is bad, because not to the lessor 
 first [c). 
 
 The clearest and safest way is, to reserve the rent generally during 
 the term, without saying to whom, and leave it to be distributed by 
 the law. For if the reservation of rent be general, the law gene- 
 rally directs it according to the intent and the nature of the thing de- 
 mised (d). 
 
 This has always been taken most in advantage of the lessee and 
 against the lessor, and yet so as the rent be paid during the time (e ) ; 
 for if no person be mentioned, the reservation shall be extended by im- 
 plication of law, to the lessor and his heirs {/)■ 
 
 But if the reservation be only to the lessor, and the deed do not say 
 also " to his heirs, executors, CSV." this reservation shall continue only 
 for the life-time of the lessor, and shall determine with his death : for 
 txpressum facit cess are taciturn (g). 
 
 So, if a man reserved rent to him or his heir, it will be good to him 
 for his life and void to the heir (h). So also if the lessor be seised in 
 fee, and make a lease for life or years, rendering rent to the lessor, or 
 his executors or assigns ; in this case the rent shall continue only for 
 the life of the lessor (z). 
 
 But if the reservation be to the lessor, his heirs and assigns, in the 
 copulative, or in the disjunctive to him or his heirs, or to him or his 
 successors, (if it be the lease of a corporation,) during the term ; then 
 all the assignees of the reversion shall enjoy it (k). 
 
 So, if the reservation be thus : " yielding and paying so much rent," 
 without any more words, this shall be taken for all the time of the 
 estate, and shall go to him in reversion accordingly (/). 
 
 For, if the rent be made payable yearly, without saying during the 
 term, the payment must be made during the term (m). 
 
 Therefore if a man seised of land in fee makes a lease for years, re- 
 serving rent to him and his assigns during the term, this reservation 
 shall not determine by the death of the lessor as was once wrongly 
 
 (-' : Saund. 370. (*) Con:. Dig. tit. Rent (B. 5.) (0 8 Co. R. ;c. 
 
 (</; Ibid. 1 Vent. 161. (e) Shcp. Touch. 114. (/) Dyer, 5. 
 
 (g) Shop. Touch. 114. vide etiam z Wms's. Saund. 368 n. (2.) (*) Co. Lit. 214. a. 
 
 {'■) Com, Dig. tit. Rent (B. 5.) Shcp. Touch, ut ante. (J) Ibid. (/) Ibid. 
 
 («) Moor, 459.
 
 Sect. I.] Rent; reservation of. 189 
 
 ruled, but the rent shall go to his heir (a) ; for though there be no men- 
 tion of his heirs in the reservation, yet there are words which evidently 
 declare the intention of the lessor to be that the payment of the rent 
 shall be of equal duration with the lease, the lessor having expressly 
 provided that it shall be paid during the term ; consequently the rent 
 must be carried over to the heir, who comes into the inheritance after 
 the death of the lessor and would have succeeded in possession of the 
 estate if no lease had been made : and if the lessor assigns over his re- 
 version, the assignee shall have the rent as incident to it ; because the 
 rent is to continue during the term ; therefore it must follow the rever- 
 sion, since the lessor made no particular disposition of it separate from 
 the reversion (b) : 
 
 If tenant in tail demise for years, rendering rent to him and his heirs, 
 this goes to the heir in tail (c). 
 
 If tenant for life, with power to make leases, demises, rendering 
 rent to him, his heirs and assigns, it shall be adjudged to him in re- 
 mainder (d). 
 
 One seised in fee lets for years reserving rent "during the term" to 
 the lessor, his executors, administrators and assigns, and lessee cove- 
 nants to pay it accordingly, and the lessor devises the reversion and 
 dies ; the reservation is good to continue the rent during the whole 
 term, and the devisee shall have an action of covenant for non-pay- 
 ment (e). 
 
 If a copyholder by licence leases, rendering rent to him and his wife, 
 and his heirs, where by the custom the wife has her free-bench, the 
 wife shall have the rent as incident to the reversion (f). 
 
 If a lease be made by a husband, reserving rent to him for life, and 
 to his wife for life, it will be a reservation during the life of the sur- 
 vivor (g). 
 
 A posthumous child, born after the next rent-day had incurred, after 
 the death of his father, is under the stat, 10 £5* 1 1 W. 3. c. 16. intitled 
 to the intermediate profits of the lands settled, as well as the lands 
 themselves ; for that act of parliament was made to enable posthumous 
 children to take estates as if born in their father's lifetime, though there 
 should be no estate limited to trustees to preserve the contingent re- 
 mainders (/»). — Indeed it is now laid down as a fixed principle, that 
 wherever such consideration would be for his benefit, a child in ventre 
 sa mere shall be considered as absolutely born ; fur all the cases establish 
 this point, that there is no distinction between a child in ventre sa mere 
 and one actually born (z). 
 
 It may be observed that "heir" is the only word of privity in law 
 
 (a) Glib, on Rents, 66, 7. Shep. Touch. IIJ. (£) Cro. Eliz. 217. 
 
 (0 Com. Die. tit. Rent <B. 5.) (d) Com. Dig. tit. Rent (B. 5.} 
 
 00 2 Saund. 367. S. C. 2 Lev. 17. Si. T. Raym, 213. 1 Vent. 148, 161, 2 Keb. 79?, 
 ' T 9. §33, 8j9- (f. Com Dig. tit. Rent (B. J ) (j) Ibid. B. 7. 
 
 (/;) : Atk, 303. (7; c T H 60,61. Vv\tlc L.Be;. 2 H. B!. 401. 1. P.Wir.s. :4".
 
 ]£)0 Rent; reservation of. [Chap. VIII. 
 
 requisite to the reservation of rents, and in conditions ; the heir being, 
 in representation, in point of taking by inheritance, the same person 
 with the ancestor (a). 
 
 A man may reserve a rent to himself for his life and a different rent 
 to his heir {by 
 
 If there be two joint-tenants, and they make a lease for years by 
 parol, or deed-poll, reserving rent to one only, yet it shall enure to 
 both. But if tire lease had been indented, the reservation should have 
 been good to him only to whom it was made, and the other should 
 have taken nothing. — The reason of the difference is this : where the 
 lease is by deed-poll, or by parol, the rent shall follow the reversion, 
 which is jointly in both lessors •, and the rather, because the rent being 
 something given to the joint-tenant to whom it is reserved in retribu- 
 tion for the land, he ought to be seised of the rent in the same manner 
 as he is of the land demised, which is equally for the benefit of his 
 companion and himself ; but where the lease is by deed indented, they 
 are estopped to claim the rent in any other manner than it is reserved 
 by the deed, because the indenture is the deed of each party, and no 
 man shall be allowed to recede from his own solemn act. Co. Litt. 47. 
 A. Gilb. on Rents, 63. 
 
 So, if two joint-tenants let by deed to A. rendering to them 10s. per 
 ann. and only one seals the deed, the demise shall be but of a moiety, 
 rendering only $s. per ann (c). 
 
 If a rent be payable yearly without saying « during tlie said term," 
 yet the payment must be made every year during the continuance of the 
 lease [d). 
 
 If therefore a lease be made for years, provided that the lessor shall 
 pay for it at Michaelmas and Lady Day 10/. by equal portions " during 
 the term," though this rent is not made payable yearly, yet the law 
 construes it to be so, because it is payable at the two feasts during the 
 term, and then consequently it must be paid yearly ; for if there be 
 any omission of the payments in any one year during the lease, it is 
 not paid at the two feasts during the term (e). 
 
 So, if a man demise for five years, rendering 100/. to be paid by 
 equal portions during the term, it shall be paid yearly though that word 
 was omitted {/). 
 
 If a lease be made rendering rent at two usual feasts of the year, 
 without specifying what feasts, the law construes such payments to be 
 made at Michaelmas and Lady-day, because those are the usual days ap - 
 pointed in contracts of this nature for payments (g). 
 
 So, if a man grants a rent of 10/. to another payable at the two 
 usual feasts of the year, this shall be intended by equal portions, though 
 not so mentioned in the deed •, because where there are two several 
 
 (a) Hob. i; v o. (I) Com. Dig. uf ante. Co. Lit. 313. b. 214. 2. 
 
 {c) Com. Dig. u'. Rent (B.6.) (d) Gilb. en Rents, 51. (e) Ibid. 50, 
 
 (J) Com. Dig. tit. Rent (13. 8.) (j?) Gilb. on Rents, Ji.
 
 Sect. I.] Rent; reservation of. 191 
 
 days appointed for payment, it is the most equal construction, that a 
 moiety of the rent shall be paid at each day (a). 
 
 If a man make a lease to another the 6th day of August, rendering 
 yearly the rent of 40/ . at two terms of the year, viz. at Lady-day and 
 Michaelmas, by equal portions, though in this case by the appointment 
 of the parties, Lady day be the first term mentioned, yet the first pay- 
 ment shall be made at Michaelmas ensuing the date of the lease ; for 
 without such transposition of the words of the deed, the intention of 
 the parties could never be fulfilled, because the rent is reserved an- 
 nually, and the lessor would lose the profits of one half year if the 
 rent was not payable the first Michaelmas ; and the lessee must enjoy 
 the land from the date of the lease to the first Michaelmas without pay- 
 ing any thing ; and so likewise from the last Lady-day of the term to the 
 expiration of it ; because though the rent ended in August, yet the pay- 
 ment was not to be made till the Michaelmas following, before which 
 time the lease expired (h). 
 
 So, if a man makes a lease the 1st of May, reserving rent payable 
 quarterly : this shall be intended quarterly from the making of the 
 lease ; for if the beginning of the quarter should be construed to be 
 any other day than the date of the lease, the lessor would lose the pro- 
 fits of his land for some time, and consequently not have quarterly 
 payment made during the continuance of the lease (c). 
 
 A rent was reserved half yearly from Michaelmas ; an action brought 
 for half a year's rent ending the 25th day of March, which was not 
 half a year from Michaelmas ; and the rent being reserved half yearly 
 without mentioning any day, there must be a full half year before it is 
 due ; but otherwise, where it is made payable at such and such feasts, 
 quarterly or half yearly •, there though the quarter or half year in reality 
 be not then expired, yet, as to the reservation and payment, it is (d). 
 
 If rent be reserved quarterly or half yearly, each apportionment of 
 rent is a distinct debt (e). 
 
 Where there are special days of payment limited upon the reddendum, 
 the rent ought to be computed according to the reddendum, and not ac- 
 cording to the habendum: but where the reservation is general, as half 
 yearly or quarterly, and no special days are mentioned, there the half 
 year or quarter must be computed according to the habendum (f). 
 
 If tenant in fee makes a lease for years to begin at Michaelmas, ren- 
 dering 100/. per annum at Michaelmas and Lady-day, or within ten day6 
 after every feast ; it seems to be the better opinion that the rent is due 
 the last Michaelmas-day of the term, without any regard to the ten 
 days ; for the reservation being annual, at the two feasts, or within ten 
 days, it shall be construed to be at the end of every ten days during the 
 term, as most agreeable to the design of the contract j and therefore 
 
 («) Gilb. on Rents, 51. (I) Ibid. 49. (0 Ibid. jo. (J) 7 Mod. 97. 
 
 (f) % Vent. 139. (/) a Ld, Raym. 3 30. I Salk. Z4r. s. e.
 
 \9 c l Rent; reservation of [Chap. VIII. 
 
 the law rejects the ten days after the last feast, because the term ending 
 at Michaelmas, there cannot be ten days after it during the term, for 
 payment of the rent. This construction is the more reasonable, be- 
 cause to give the lessee his election to make the last payment either at 
 Michaelmas or ten days after, were to put it in his power to avoid pay- 
 ment of the last half year's rent : for if it could be construed not to be 
 due till the end of the ten days, the lessor could never oblige him to 
 pay it, because then the term would be ended before the rent became 
 due j for the addition of the ten days was only to enlarge the time of 
 payment, but not to prevent the payment, or to remit any part of the 
 rent (a). 
 
 If a man, possessed of a term of one hundred years, make a lease 
 for fifty, reserving rent to himself and his heirs, this rent determines at 
 his death •, for his heir cannot have it, because he cannot succeed to the 
 estate, it being but a chattel interest, to which the rent, if it continues 
 after the life of the lessor, must belong ; and the executors cannot 
 have it, because there are no words to carry it to them (b). [It would 
 however form a part of the residuary estate, it is conceived, and be 
 assets in the hands of the executor or administrator : and this construc- 
 tion is warranted by Lord Hale expressly in the case cited. For a term 
 of years, being but a chattel real, is assets in the hands of the executor 
 or administrator •, and if such be the nature of the thing demised, the 
 rent reserved upon it will of course accompany its principal, and no': 
 go to the heir (c)]. 
 
 Where, however, an inheritor reserves rents, upon a lease for years y 
 this shall not go to the executor, but to the heir, with the reversion 5 
 other than arrearages of it behind at the death of the testator (d). 
 
 Therefore where the lessor died upon Michaelmas-day between three 
 and four o'clock in the afternoon, before sun-set, the rent being re- 
 served pavable on Michaelmas-day, the question was, whether the exe- 
 cutor or the heir, or, which is the same, the jointress of the lessor t 
 should have the rent ? It was decreed that the rent should go to the 
 heir or jointress, because at the time of the death of the lessor, there 
 was no remedy nor means to compel the payment thereof (e). 
 
 apportionment of rent At common law, rent cannot be apportioned, 
 
 neither can a rent-charge, or rent-seek (/)> but the reversioner be- 
 comes entitled to the accruing rent from the rent-day, antecedent to 
 the decease of the tenant for life, whose representative was entitled 
 only to the arrearages due at some rent-day before the death of the tes- 
 tator or intestate : for the law does not apportion rent in point of time, 
 neither does equity (g). 
 
 If, therefore, a tenant for life made a lease for years, and died tlur 
 
 (a) z Ld. Raym. 82c. 1 Salk. 52. Cro. Jac. 22 7, 253. (}) Gilb. u( ante. 66. 
 
 (<r) i Vent. 162. Com. Dig. tit. Rent (B. 5.) (d) Went. Off. 1. . 5 3- 
 
 (?) 2 Salk. 578, iSaund.287. (/) Co, Lit. p. M?.'" 
 
 (g) 1 Sail;. 65. Cro. Eli?. 256. I P, Win-. 392, 2 P- \Vm?. 176.
 
 Sect. I.] Rent; apportionment of. ](J3 
 
 day before the rent was due, (which is not payable till the last moment 
 of the day on which it is expressly reserved in the lease,) the rent was 
 lost both to the executor and the reversioner, and the law being so, 
 equity would not relieve (a). 
 
 The strict adherence to this rule of law was productive therefore of 
 a verv manifest and grievous injustice. This however has been in a 
 great degree remedied by the statute 1 1 G. 2 c. 19. s. 15. which after 
 reciting, that Whereas where any lessor or landlord, having only an 
 estate for life, in the lands, tenements or hereditaments, demised, hap- 
 pens to die before, or on the day, on which any rent is reserved or 
 made payable, such rent or any part thereof, is not by law recoverable 
 by the executors or administrators of such lessor or landlord ; nor is 
 the person in reversion intitled thereto, any other than for the use and 
 occupation of such lands, tenements, or hereditaments, from the death 
 of the tenant for life of which advantage hath often been taken by the 
 under-tenants, who thereby avoid paying any thing for the same: enacts, 
 that Where any tenant for life shall happen to die before or on the day 
 on which any rent was reserved or m:\dc payable upon any demise or 
 lease of any lands, tenements, or hereditaments, which determined on 
 the death of such tenant for life, the executors or administrators of 
 such tenant for life shall and may, in an action on the case, recover 
 of and from such under-tenant or under-tenants of such lands, C5*<:. if 
 such tenant for life die on the day on which the same was made pay- 
 able, the whole, or if before such day, then a proportion of such rent 
 according to the time such tenant for life lived, of the last year or 
 quarter of a year, or other time in which the said rent was growing due 
 as aforesaid, making all just allowances or a proportionable part thereof 
 respectively. 
 
 In a leading case on the above statute, (in which Lord Hardwicke in- 
 clined to extend the remedy to the representatives of a tenant in tail 
 whose lease determined with his life,) the facts were these: Tenant in 
 tail, remainder to the defendant in fee, leased for years, and died with- 
 out issue a week before the day of payment of the half year's rent. 
 The lessee at the clay paid all the half year's rent to the defendant. The 
 executor of the tenant in tail brought ins bill for apportionment of the 
 rent. By the L. C. Hardnvicke . this point has never been determined; 
 but this is so strong a case that 1 shall make it a precedent. There are 
 in it two grounds for relief in equity : the first arises on the statute of 
 the 11 G. 2. the second arises on the tenant's having submitted to pay 
 the rent to the defendant. The relief arising upon this statute, is either 
 from the strict legal construction, or equity formed upon the reason of 
 it. And here it is proper to consider, what the mischief was before 
 the act, and what remedy is provided at common law. If tenant 
 
 (a) 2 P. Wms. JC2. 
 
 O
 
 1P4 Rent ; apportionment of. [Chap. VIII. 
 
 for life, or any who had a determinable estate, died but a day before 
 the rent reserved on a lease of his became due, the rent was lost : for 
 no one was entitled to recover it. His representatives could not, be- 
 cause they could only bring an action for the use and occupation •, and 
 that would not lie where there was a lease, but debt or covenant : nor 
 could the remainder-man ; because it did not accrue in his time. Now 
 this act appoints the apportioning the rent, and gives the remedy. But 
 there are two descriptions of persons to whose executors the remedy is 
 given : in the preamble, it is one having only an estate for life •, in the 
 enacting part it is, tenant for life. Now tenant in tail comes expressly 
 within the mischief. I do not know how the judges at common law 
 construe it, but I should be inclined in this court to extend it to them. 
 I should make no doubt, were this the case of tenant in tail after pos- 
 sibility of issue extinct \ for he is considered in many respects as tenant 
 for life only : he cannot suffer a recovery ; he may be enjoined from 
 committing waste, such as hurts the inheritance, as felling timber ; 
 though not for committing common waste, being considered as to that 
 as tenant in tail. Were it the case of tenant for years determinable on 
 lives, he certainly must be included within the Act, though it says only 
 tenant for life ; it would be playing with the words to say otherwise. 
 These cases shew the necessity of construing this Act beyond the words. 
 Tenant in tail has certainly a larger estate than a mere tenant for life ; 
 for he has the inheritance in him, and may, when he pleases, turn it 
 into a fee •, but if he does not, at the instant of his death he has but 
 an interest for life. Such too is the case of a wife tenant in tail ex 
 provisione mariti. Upon this point I give no absolute opinion. As to 
 the equity arising from the statute, I know no better rule than this, 
 equitas sequitur legem. Where equity finds a rule of law agreeable to 
 conscience, it pursues the sense of it to analogous cases. If it does so 
 as to maxims of the common law, why not as to the reasons of Acts of 
 Parliament ? nay, it has actually done so, on the statute of forcible 
 entry ; upon which this court grounds bills, not only to remove the 
 force, but to quiet the possession. That Act requires a legal estate in 
 possession ; this court extends the reason to equitable in interest. But 
 I ground my opinion in this case upon the tenant's having submitted to 
 pay the rent. He has held himself bound in conscience to pay it for 
 the use and occupation of the land the last half year. He paid it to 
 the defendant, which he was not bound to do in law : and in such case, 
 the person he pays it to shall be accountable, and considered as receiv- 
 ing it for those who are in equity entitled to it. The division must be 
 that prescribed by the statute ; and then the plaintiff is entitled to such 
 a proportion of the rent as accrued during the testator's life-time. And 
 accordingly it was decreed (a). 
 
 {a) i Buia'i just. tit. ' I)isU•es:-, , ' Ambl. Jt^S. s. c.
 
 Sect. L] Rent ; apportionment of. 
 
 So, rent paid to receivers by tenants holding under demises deter- 
 minable upon the decease of tenant in tail, who died without issue, 
 was afterwards apportioned between the representative and the re- 
 mainder-man. But in this case the Lord Chancellor Thurlow observed 
 that the case of Paget and Gee (above cited from Burn and Ambler) 
 seemed rather to be a decision what the statute ought to have done, 
 than what it had done: but that the question here seemed to turn on 
 another ground, that the tenant holding from year to year, or from 
 period to period, from a guardian without lease or covenant, cannot 
 be allowed to raise an implication in his own favour that he should 
 hold without paying any rent to any body {a). 
 
 Thus, by the statute 11 G. 2. rent is apportionable where it has 
 accrued on a lease determinable on the life of the tenant for life. 
 Still however the rigid rule of law obtains as before the statute, where 
 the estate does not so terminate, but continues notwithstanding the 
 death of tenant for life, as where it is under a power, or by licence 
 of the lord (if a copyhold,) or not pursuant to the enabling statute 
 32 H. 8. in case of a tenant in tail; so that in either of these cases 
 if the \ arty die at anv time before the accruing rent has become pay- 
 able, his representatives, and his creditors, lose every benefit which 
 they would have derived from his estate; and the rent goes to the 
 reversioner. Such being the case, we would recommend the parties 
 concerned to attend to the suggestion of Lord Chancellor Ccivper, 
 who observed that the gift in law of the rent, which the lessee of tenant 
 for life obtained previous to the statute, by the death of tenant for life 
 in the middle of a half year, might be guarded against by reserving 
 the rent weekly [b). 
 
 Quit-rent will not be apportioned as between tenant for life and 
 remainder-man (c). 
 
 If lessee for years of land, rendering rent, accepts a new lease 
 from the lessor, of part of the land, which is a surrender of this 
 part, the rent shall be apportioned ; for this comes by the act of the 
 parties (d). 
 
 If a man leases three acres for life or years rendering rent and after 
 grants the reversion of one acre, the rent shall be apportioned (e). 
 
 A lease was made of land and a flock of sheep, rendering rent. 
 All the sheep died. Several justices and serjeants were of opinion 
 that the rent was apportionable and many others that it was not ; but 
 all thought that it was equitable and reasonable to apportion it: and 
 afterwards the case was argued in the reading of Moore the Lent follow- 
 
 (a) % Br. R. 659. (£) 1 P. Wms. 292, (c) 10 Ves. 66. 
 
 (d) Vin, Abr. tit. " Apportionment" (B. 5. 12.) (?) Ibid. 7, 
 
 O 2
 
 196 Rent; apportionment of. [Chap. VIII. 
 
 ing, and it seemed to him and to four justices, that the rent should be 
 apportioned, inasmuch as no default was in the lessee (a). 
 
 If a man being seised in fee of Blackacre, and possessed for twenty- 
 years of Whitcacre) leases both for ten years, rendering rent, and dies, by 
 which the reversion of one acre comes to his heir, and the other acre 
 to his executor, the rent, it seems, shall be apportioned, because it 
 happens by act of law (b). 
 
 A lessee who grants or assigns part of his estate is, notwithstanding, 
 liable on his covenant to pay the entire rent, for he cannot apportion 
 it ; the action as between lessor and lessee being personal and upon a 
 mere privity of contract, and on that account transitory, as any other 
 personal contract is (c). 
 
 But covenant lies against the assignee of the lessee of an estate for 
 a part of the rent ; as in such cases it is properly a real contract in 
 respect of the land, and is local in its nature, and not transitory ; 
 and in case of eviction, the rent may be apportioned as in debt or 
 replevin (d). 
 
 Where a man seised in fee of a manor hclden in moieties by socage, 
 and knight's service, (since abolished) and of a parsonage appropriate, 
 leased them for an entire rent, and on his death, devised the manor 
 for life, remainder in tail; it was held that the remainder-man, on a 
 surrender to him of the estate for life, might distrain on the lessee for 
 an apportionment of the rent ; and that a bar to his avowry must shew 
 the value of all the premises, and answer the rate of the apportion- 
 ment. So, on an avowry for an entire rent, if the plaintiff plead 
 eviction of part of the land by elder title, he must shew how much in 
 value was evicted and how the rent ought to be apportioned (e). 
 
 But a lessee, who is evicted in consequence of a statute acknow- 
 ledged by a former owner of the estate, cannot be sued by his lessor 
 for an apportionment of the rent (f). 
 
 So, if I lease lands, reserving 20/. rent yearly, and at the end of 
 three quarters be evicted, the lessor shall have no rent; for rent shall 
 never be apportioned in respect of time, for being one contract and 
 one debt it cannot be divided and annua nee debitum judex non separat(g). 
 Where there are two parceners, and one will take advantage of a for- 
 feiture, and the other not, there must be an apportionment (h). 
 
 For by entry into any part of the premises demised, the rent is 
 suspended. But if the lessor enter by virtue of a power reserved, or 
 even as a mere trespasser, if the lessee be not evicted, it will be no sus- 
 pension of the rent (/'). 
 
 {a) Vin. Abr. tit. " Apportionment" (C. 10.) (&') Ibid. (D. 3.) (<-) Cro. Eliz. 633, 
 
 637. Doug. 186. % East's R. 575. (d) Ibid. 581. (e) Cro. Eliz. 771. Cro. Jac. 160. 
 
 (/) Cro. Eliz. 255. (0-) 1 Salk. 65. (/;) Vin. Abr. tit. " Apportionment" (A. 28.) 
 
 1 Salk. 186. (0 Bull. N. P. 165. 177. Cowp. 343.
 
 Sect. II.] Of Taxes. 197 
 
 Rent nuhen due. — By the old lav/, it was demandable and payable 
 before the time of sun-set of the day whereon it was reserved ; for 
 antiently the day was accounted to begin only from sun-rising, and to 
 end immediately upon sun-set (a). 
 
 But Lord Hale held, that although the time of sun-set was the time 
 appointed by the law to demand rent in order to take advantage of a 
 condition of re-entry, and to tender it in order to save a forfeiture, 
 vet the rent is not due until midnight : for if a man seised in fee, 
 makes a lease for years, rendering rent at the feast of St. John the 
 Baptist, upon condition of re-entry for non-payment ; now the lessor, 
 if he will take advantage of the condition, must demand it at sun-set; 
 yet if he dies after sun-set, and before midnight, his heir shall have 
 this rent and not his executors, which proves that the rent is not due 
 until the last minute of the natural day (b). 
 
 A difference, it seems, subsists between the case of a lease made 
 by tenant in fee, or under a power, and that of one made by a bare 
 tenant for life : in the latter case, if the lessor lives to the beginning 
 of the rent-day, at which time a voluntary payment of rent may be 
 made, that is sufficient to entitle the executor to the rent, rather than 
 it should be lost ; but in the former case, by the death of the lessor 
 before the last instant, the rent will go along with the land to him in 
 the reversion or remainder, because being payable on those days 
 during the term, the lessee has till the last instant to pay his rent, and 
 consequently the lessor dying before it was completely due, his repre- 
 sentatives can make no title to it (c). 
 
 As to the time for the payment of rent ; where a time certain is ap- 
 pointed for that purpose, neither agent nor principal is bound to attend 
 at any other time ; and if the thing be to be done on a day certain, but 
 no hour of the day is set down wherein the same shall be done ; 
 in this case, they must attend such a distance of time before sun-set, 
 that the money may be counted, and the demand should be made on 
 the most notorious part of the premises (d). 
 
 [See also " Condition to re-enter on non-payment of rent." post 
 Chap. X. Sect. IT.] 
 
 Section* II. Of T<txes. 
 
 It is a general principle that the occupier of the premises is liable 
 to pay all parliamentary taxes and parochial rates, as respects the 
 rights of the public. 
 
 (a) Co. Lit. 302. 2 Bl. Com. 43. (L) 1 Saund. 287. (c) 1 Saum". 287, n. 17. 
 
 (7; 6 Eac. Ah. 31.
 
 19S Of Taxes and Party Walls. [Chap. VIII. 
 
 Thus the land-tax is not the landlord's tax with respect to the 
 public, though it is, as between landlord and tenant. In fact, the 
 land itself, in the hands of the occupier, is the debtor to the public (a): 
 the land-tax, therefore, is prima facie the tenant's tax, because all the 
 remedies are against him (£). 
 
 The land-tax differs from the poor's-tax. The landholder who 
 receives the rent is to pay the land-tax ; but the poor's-ta^x is payable by 
 the occupiers. The occupier ought to be rated regularly by name: 
 therefore as some particular person cannot be fixed upon who may be 
 properly rated as occupier, it follows as a necessary consequence, that 
 no rate can at all be made upon the premises (c). 
 
 The land tax acts, from the 4th of W. OS 5 M. c. !. s. 13. and the 
 28th G. 3. c. 2. s. 17. & 35. to the present time, direct the tenant 
 to pay the land tax in the first instance, and to deduct out of the rent 
 so much of the rate as in respect of the said rent the landlord should 
 and ought to pay and bear ; and the landlords both mediate and im- 
 mediate, according to their respective interests, are required to allow 
 such deductions. 
 
 Under a covenant, therefore, in a building lease, by the tenant, to 
 pay all the taxes, except the land-tax, the landlord is to pay only the 
 old land-tax, and not the additional land-tax occasioned by the im- 
 provement of the estate ; for the legislature did not mean that the 
 whole of the land-tax in respect of all the rent should be borne by the 
 original landlord, but each was to make that allowance in proportion 
 to the rent that came to him (d). 
 
 Upon the same principle A. having granted a building lease to B. 
 at the yearly rent of 7/. which estate B improved and afterwards 
 underlet at 54/. per annum, A. was held liable only to pay the land- 
 tax in proportion to the old rent (e). 
 
 So, on a lease in which rent was reserved, to be paid " without 
 any deduction or abatement whatsoever," it was resolved that as the 
 land-tax act enables the tenant to deduct that tax out of his rent, he 
 has in all cases a right to stpp it, unless there is an express agreement 
 to the contrary. 
 
 The owner of a quit-rent shall pay taxes only in proportion to what 
 the land pays : but if the matter has been examined by the commissi- 
 oners of the land-tax, the court of Chancery will not re-examine it [J ). 
 
 A house within the limits of an hospital, appropriated to an officer 
 of the hospital for the time being, is not assessable to the land-tax (g). 
 
 But a bill in equity will not lie for a tenant to be relieved out of the 
 
 (a) Doug. 226. [165.I (!>) 2 Const's Bolt's P. L. 275, pi. 281. 
 
 (e) CaMecott 379. 2 Bur. 1C63. {d) 3 T. R. 377. 2 Sir, 1191. 
 
 (0 3 T. R. 3 79- f J) 1 P- Wins. 328. (j) 1 H. Bl. R. 68.
 
 Sect. II.] Of Taxes and Party f Falls, igg 
 
 arrears of rent, for taxes which he has actually paid on account of rent 
 reserved to a charity, which appears to be exempted from taxes (a). 
 
 The act of the 7th G 3. c. 37. exempting the owner of certain lands 
 embanked from the river Thames from all taxes and assessments what- 
 soever, does not exempt the occupiers of houses built on such lands 
 from the payment of the house and window duties imposed by Stat. 38 
 G. 3. c. 40 (b). 
 
 Houses built on lands embanked from the Thames, pursuant to stat. 
 7 G. 3. c. 37. which vests those lands in the hands of the owners " free 
 from taxes," are not liable to the general land-tax imposed by stat, 27 
 G. 3. though such act is conceived in general terms, and was passed 
 subsequently to the act creating the exemption. Nor are such houses 
 liable to the rates imposed by stat. 11. G 3. c. 29 (c). 
 
 Of Party Walls. — The statute 14 G. 3. c. 78. is "An Act for the 
 further and better regulation of buildings and party-walls ;" -but being 
 very voluminous, we refer the reader to the Act itself. In the con- 
 struction of that statute Eyre, C. J. observed, that it was easy to see 
 that it was an ill penned law, and that its meaning was left uncer- 
 tain {d). 
 
 The lessor of a house at a rack-rent, (there being no other person 
 entitled to any kind of rent) is liable to contribute to the expences of 
 a party-wall under the statute, though the lessee has improved the house 
 demised (<?). 
 
 So, if a lessee of a house at a rack-rent underlet it at an advanced 
 rent ; he is liable to contribute to the expences of a party-wall built un- 
 der the statute ; nor is the operation of the Act at all varied by any 
 covenants to repair, entered into between the landlord and his tenant. 
 In this case, Eyre C. j. said, I think that it was intended by the legisla- 
 ture that the tenant should pay a moiety of the expence to the person 
 building the wall, and reimburse himself by deducting the amount out 
 of the rent of his immediate landlord, leaving it to him to make his 
 claim on such other persons as he may think liable : that appears to'me 
 to be the best construction for putting the business in a practicable 
 shape. I should incline to that opinion, even if it were made out that 
 the covenant on the part of the tenant [among the covenants on the 
 part of the lessee was one to make " all needful and necessary repara- 
 tions and amendments whatsoever ;"] included this case ; for though the 
 conduct of the tenant might be a breach of covenant, it would be fitter 
 that the damages should be settled in an action of covenant, than to 
 break in on the rules established by the statute. I know of no way of 
 executing this law, if we enter into all the derivative claims of different 
 landlords. If the tenant pays the money, let him reimburse himself, 
 
 (a) 1 P. Wms. 118. n. (£) 8 T. R. 46?. (e) 4 T. R. 7. 
 
 {d) 1 Bos. & Pul. y- (,] 8T.R.Z14. 3 T.R. 461,
 
 200 Of Taxes and Parti) Walls. [Chap. VIII. 
 
 and leave the other parties to dispute among themselves. And Buller J. 
 (who entirely agreed with the C. J ) said, There are three parties in this 
 business j the man who built the wall, the tenant, and the tenant's im- 
 mediate landlord. The owner of the adjoining house pursued the direc- 
 tions of 14 G. 3. c. 78 winch gave him a right to call on the plaintiff 
 (in replevin) for a moiety of the expence; that being settled, how does 
 the case star ! between the tenant and his landlord? i atrree that we 
 must consider whether the landlord be the owner of an improved rent ; 
 but i.) .his case he has an improved rent, since he receives more than 
 the person of whom lie took the premises . and if the landlord lias the 
 improved rent, he certainly is liable, though there be only one year of 
 the term to come. As to the question, whether the expence can be 
 apportioned, that does not arise here, but if any thing could be found 
 to warrant an opinion tin-own out by Lord Mansfield in Stone v. Green- 
 well (cited in 3 T. R 46 .) that the parties might be liable to a rateable 
 proportion in some cases, it would tend much to the advancement of jus- 
 tice. 1 he building a party wall is certainly a great improvement to the 
 premises., and every person interested in the fee and receiving a benefit 
 from it, ought to contribute («). 
 
 It is indeed clear that the owner of the improved rent, not of the 
 ground rent, is liable to pay the expenccs of a parry-wall built under 
 the statute J). 
 
 But where the tenant of a house covenanted in his lease to pay a reason- 
 able share and proportion of supporting, repairing, and amending ail party- 
 wails, C5"V. and to pay all taxes, duties, assessments, and impositions 
 parliamentary and parochial, "it being the intention of the parties that 
 the landlord should receive the clear yearly rent of 60/. in net money 
 without any deduction whatever ." during the lease the proprietor of the 
 adjoining house built a party wall between that house and the house de- 
 mised, under stat, 14 G. 3. c 78. held that it was the tenant, not the 
 landlord, who was bound to pay the moiety of the expence of the party- 
 wi 1 ! . for, said Lord Kenyan, the covenants in the lease render it neces- 
 sary to consider which of the parties would have been liable under the 
 Act of P. rliament : modus ct ec::ve/itio vincunt legem. We collect the in- 
 tention from the whole of the instrument. If this had rested itself 
 merely upon, a covenant to pay taxes, CiJV. I should not have thought 
 a tenant liable, but here is a covenant that the landlord should have the 
 rent clear and net. A covenant is always taken most strongly against 
 the covenantor. I cannot bring my mind to doubt from the whole but 
 that the tenant should pay the whole. Gro.e J. This is as if the land- 
 lord had reserved a clear rent-charge to himself. Lawrence J. The in- 
 tention of the parties was that the landlord should have his rent free 
 from anyc'i.rge. It is not necessary to decide which party is the 
 
 (u) 1 Bos. & Pul. 5Cj. (4) 5 T. R. 130.
 
 Sect. III.] Of the Poors-Rates. 201 
 
 owner of the improved rent Li Blanc J. I ground myself on the 
 covenant that the tenants should pay a reasonable proportion of the 
 parry wall (a). 
 
 A lessee for twenty-one years at a pepper-corn rent for the first half- 
 year and a rack-rent for the rest of the term, who by agreement was to 
 pu. the premises in repair, and covenanted to pay the land-tax and all 
 other taxes, rates, assessments, and impositions, having assigned his 
 tern; fur a small sum in gross, was held not to be liable to pay the ex- 
 pence of a party-wall, either by the provisions of the stat. 14 G 3. 
 c. 78. s 41. or the covenant ; for where the parties contract for a lease 
 a: rack-rent, the landlord is the person who ought to bear the expence 
 of .he party- wall (b). So, where the parties stand, as in the piincipal 
 case, in the relation of landlord and tenant, the former is liable under 
 the Aet of Parliament to pay the expence ; for the legislature intended 
 to throw the burden on the lessees of building leases, by whom the va- 
 lue of the estates is considerably improved, and who afterwards made 
 under-leases reserving improved rents (c). 
 
 If however a large sum were paid for the purchase of a lease, the 
 original 'sst , though no improved rent were reserved to him, would, 
 it seems, be liable to pay this expence within the Act of Parliament {d). 
 
 Vi- three montl s* notice requhed by s, 38. of the 14 G. 3. c. 78. is 
 necc^ery only where the person who at the time when it is necessary 
 to build, lsc is liable to pay, cannot agree with the owner of the ad- 
 joining house \e). 
 
 The penalty of 10/. inflicted by s. 67 of the statute, for not having 
 tie new building surveyed, is recoverable against the master builder, 
 where the regulations of the Act are not complied with, and not against 
 the proprietor of the premises [f). 
 
 Sect r ox III. Of the Poors-Rates. 
 
 The foundation of the Poor Laws was laid by the stat. 43 Ellz c. 2. 
 which was passed for the best of purposes, namely, to compel the idle 
 to be industrious; and to relieve the wants of the unfortunate, and af- 
 ford them tnose comforts which they are disabled to procure from in- 
 firmity or age . from neglect and abuse however, its provisions, and 
 those of many other Acts passed for the same wise and benevolent pur- 
 poses, are in a great measure frustrated. 
 
 By sect. 1. of the stat. of E/iz it is enacted, " that the churchward- 
 ens of every parish, and four, three, or two substantial house-holders 
 
 i» P. F. R. 602. (/■) 3 T. R. 453. (0 Ibid. (J) Ibid. 
 
 WJT.R.130. (/)3iisp.R.M3.
 
 202 Of the Poors-Rates. [Chap. VIII. 
 
 there, as shall be thought meet, having respect to the proportion and 
 greatness of the same parish and parishes, to be nominated yearly in 
 Easter week, or within one month after Easter, under the hand and 
 seal of two or more Justices of the Peace in the same county, whereof 
 one to be of the Quorum, dwelling in or near the same parish or divi- 
 sion where the same parish doth lie, shall be called overseers of the 
 poor of the same parish : And they, or the greater part of them, shall 
 take order from time to time, by and with the consent of two or more 
 such Justices of the Peace as is aforesaid, for setting to work the chil- 
 dren of all such whose parents shall not, by the said churchwardens 
 and overseers, or the greater part of them, be thought able to keep and 
 maintain them, and use no ordinary and daily trade of life to get their 
 living by .- And also to raise weekly or otherwise (by taxation of every in- 
 habitant, parson, vicar, and other, and of every occupier of lands, houses, 
 tithes, impropriate, propriations of tithes, coal-mines, or saleable un- 
 der-woods, in the said parish, in such competent sum and sums of mo- 
 ney as they shall think fit) a convenient stock of flax, hemp, wool, 
 thread, iron, and other necessary ware and stuff, to set the poor on 
 work: And also competent sums of money for and towards the neces- 
 sary relief of the lame, impotent, old, blind, and such other among 
 them, being poor, and not able to work, and also for the putting out 
 such children to be apprentices, to be gathered out of the same parish, 
 according to the ability of the same parish, and to do and execute all 
 other things as well for the disposing of the said stock, as otherwise 
 concerning the premises, as to them shall seem convenient." 
 
 Sect. 4. " It shall be lawful, as well for the present as subsequent 
 churchwardens and overseers, or any of them, by warrant from any two 
 such Justices of Peace as is aforesaid, to levy as well the said sums of 
 money and all arrearages, of every one that shall refuse to contribute 
 according as they shall be assessed, by distress and sale of the offender's 
 goods, as the sums of money or stock which shall be behind upon any 
 account to be made as aforesaid, rendering to the parties the overplus j 
 and in defect of such distress, it shall be lawful for any two such Jus- 
 tices of the Peace to commit him or them to the common gaol of the 
 county, there to remain without bail or mainprise, until payment of the 
 said sum, arrearages, and stock : And the said Justices of the Peace, 
 or anv of them, to send to the house of correction or common gaol 
 such as shall not employ themselves to work, being appointed thereunto 
 as aforesaid ; and also any such two Justices of Peace to commit to the 
 said prison every one of the said churchwardens and overseers who shall 
 refuse to account, there to remain without bail or mainprise, until he 
 have made a true account, and satisfied and paid so much as upon the 
 said account shall be remaining in his hands." 
 
 Sect. 19. enacts "That if any action of trespass or other suit shall
 
 Sect. III.] Of the Poors-Rates. 203 
 
 happen to be attempted and brought against any person or persons, for 
 taking of any distress, making of any sale, or any other thing done, 
 by authority of this present Act, the defendant or defendants, in any 
 such action or suit, shall and may either plead not guilty, or otherwise 
 make avowry, cognisance, or justification for the taking of the said dis- 
 tresses, making of sale, or other thing done by virtue of this Act, 
 alledging in such avowry, life, that the said distress, sale, trespass, or 
 other thing, whereof the plaintiff or plaintiffs complained, was done by 
 authority of this Act, and according to the tenor, purport, and effect of 
 this Act, without any expressing or rehearsal of any other matter or cir- 
 cumstance contained in this present Act; to which avowry, cognisance, 
 or justification, the plaintiff shall be admitted to reply, That the defend- 
 ant did take the said distress, made the said sale, or did any other act 
 or trespass supposed in his declaration, of his own wrong, without any 
 such cause alledged by the said defendant : whereupon the issue in every 
 such action shall be joined, to be tried by verdict of twelve men, and 
 not otherwise, as is accustomed in other personal actions : And upon 
 the trial of that issue the whole matter to be given on both parties in 
 evidence, according to the very truth of the same, and after such issue 
 tried for the defendant, or nonsuit of the plaintiff after appearance, 
 the same defendant to recover treble damages, by reason of his wrong- 
 ful vexation in that behalf, with his costs also in that part sustained, 
 and that to be assessed by the same jury, or writ to enquire of the dam- 
 ages, as the same shall require." 
 
 By star. 17 G. 1. c. 37. waste lands improved and drained shall be 
 rated to the relief of the poor within such parish and place which lies 
 nearest to such lands : and the Justices in general quarter sessions may 
 hear and determine disputes concerning the same, and cause the land 
 to be fairly assessed in such parish as they shall think proper, s 1, 2. — ■ 
 But the allotments of the sessions shall not affect the boundaries of pa- 
 rishes, other than for the purposes of rating such laws {a). 
 
 On inclosure of waste in the parish of A. on which the land holders 
 of the parish of B. have right of common appurtenant, the allotments 
 given in lieu of that right shall be assessed to the poor of the parish of 
 A. The common itself quasi common was certainly not rateable, not 
 being the subject of occupation, but if at all it must have been assessed 
 as an accessary to the principal at B. (b). 
 
 So, where the inhabitants of one parish had common appendant in 
 certain waste grounds which lay in another parish •, and the question 
 was whether the commoner should pay taxes for this and should be 
 assessed in the parish where the waste lay, or in that wherein his farm, 
 lay ? it was held, that he ought to be assessed where his farm lay, for 
 
 (a) 1 Const's Bott. Si. pi. 107. (i) Ibid. pi. icS. * Bl. R. 1245-
 
 204 Of the Poors-Rates. [Chap. VIII. 
 
 that the common is incident, and could pass by grant of the farm, &c. 
 So that it should be considered as part of the farm, and the farm to be 
 taxed the higher (a). 
 
 But a farmer, it seems, is not rateable for the stock on his farm 
 necessary for its manurancc, though for superabundant riches and stock 
 he ought to be ra.ed (b). 
 
 The poors rate is not a tax on theland, but a personal charge in re- 
 spect of the land. — In general, the farmer or occupier, and not the 
 landlord, is liable to this tax ; for the poors-rate is a charge upon the 
 occupier in regard to his possession, and not on the lessor in regard to 
 the rent received (r). 
 
 The occupier of land is rateable to the poor, and it is immaterial by 
 what tenure he holds it, or whether he has any title, or not (d) : for if 
 a disseisor obtain possession of land, he is rateable as the occupier of it. 
 If a man does not live within a parish, he is to be assessed according to 
 his land ; but if he live within the parish, he is to be rated as dwelling 
 there (c). 
 
 The Act 20 G. 3. c. 17. s. 19. for regulating the right of voting does 
 not, in the form of assessment that it gives, prevent parishes from rat- 
 ing landlords or other persons by name j or they may still declare their 
 intention to rate the landlord (/)• 
 
 But payment of a poors-rate assessed on the occupier of a house 
 is not in itself evidence of occupation by the party so paying (g). 
 
 Every inhabitant ought to be rated according to the present value of 
 his estate, whether it continue of the same value as when he purchased 
 it, or be rendered more valuable by the improvements which he has 
 made on it. If a person choose to keep his property in money, and 
 the fact of his possessing it be clearly proved, he is rateable for that : 
 but if he prefer using it in the melioration of an estate or other pro- 
 perty, he is rateable for the same in another shape. Suppose a person 
 has a small piece of land in the heart of a town, which is only of small 
 value, and he afterwards build on it, he must be rated to the poor ac- 
 cording to its improved value with the building upon the land. — In 
 short, in whatever way the owner makes his estate more valuable, he is 
 liable to contribute to the relief of the poor in proportion to that im- 
 proved estate (/>)• 
 
 So personal property, if visible, and yielding a certain annual perma- 
 nent profit, is rateable. 
 
 It may be stated, therefore, as a general proposition, that the immc- 
 
 (a) I Salk. 169. 
 
 (i) 1 Const 's Bott. iij. p. 150, IJI. 2 1,(1. Raym. 1281. 4 Bur. 2290. Cowp. 452. 
 
 (#) 2 Const 's Bott. 92. pi. 122. (d) 1 T. R. 341. 7. ibid. 593, 6c8. 
 
 (e) I Const's Bott. 93. pi. 125. (/) 2 Ibid. 268. pi. 280. 
 
 (g) R. v. Bristow, Sitt. at Westm. after E. T. 1800. T.'s MSS. 
 
 (A) 6T.R.IJJ.7T.R.J49. 
 
 6
 
 Sect. III.] Of the Poors-Rates. 205 
 
 diate profits of land (some mines excepted) are a proper subject of as- 
 sessment, or, to speak more correctly, that the person who is in posses- 
 sion of the immediate profits of land may be taxed to the relief of the 
 poor in respect of those profits (a). 
 
 The court is not precluded, by the Sessions stating in the case " that 
 the party rated is the occupier," from examining into the propriety of 
 that conclusion, if Sessions also state all the circumstances of the case, 
 and desire to have the opinion of the superior Court upon the whole (b). 
 Where, however, the Sessions found that the master gunner at Seaford 
 was the " occupier" of the battery-house there, which was the property of 
 the Crown, and from whence he was removeable at pleasure ; it was 
 held that the fact found, of his being " the occupier," precluded any 
 other question, and fixed his liability to be rated (c). 
 
 Where the aftermath of a meadow was vested in Trustees with pow- 
 er to let the same in pastures for cattle, and they let it out to various 
 persons, but not for any certain term, or in any certain proportions, 
 at so much a head for horses, &c. ; it was held that the Trustees must 
 themselves be taken to be the occupiers of the land, and were conse- 
 quently rateable for the same (d). 
 
 In the case of St. Luke's Hospital, and of Chelsea Hospital, the offi- 
 cers are rateable as occupiers. The corporation of London are not de 
 facto the occupiers of 5/. Bartholomew's, Hospital 9 the poor are occupiers ; 
 but they are not rateable. 
 
 The general rule of law must be followed, which is, " That you 
 must find an occupier to be rated." The poor people cannot be rated 
 at all : the servants cannot be rated as occupiers 9 nor can the corpora- 
 tion be charged as occupiers (<?). 
 
 For property is not rateable to the poor, unless there be some person 
 in the beneficial occupation of it (/*). 
 
 Therefore, the trustees of a Quaker's meeting-house, of which no 
 profit is made by pews, &c. are not rateable. So, a person employed 
 by the Philanthropic Society to superintend the children at annual wages, 
 under an agreement that he shall have a " dwelling-house free from 
 taxes, &c" with certain other perquisites, and who may be dismissed 
 at a minute's warning on receiving three months' wages, is not rateable 
 as the occupier of the house provided by the Society, she having no dis- 
 tinct apartment in the house but a bed-chamber, and her family not be- 
 ing allowed to live there (g). 
 
 But the occupiers of a charitable foundation in the actual occupation 
 of the alms house and lands for their own benefit, in the manner 
 prescribed by the rules of the constitution, and liable to be dismissed 
 
 WjH. Bl.260. (/.) 5 T. R.587. (O3T. R.497. 
 
 (i) 13 East R. 155. (c) 4 Bur. 2439. % ^ ur - 10 S3- IC ^3- 1 Bl. R - ZJO. s. c. 
 
 (/) 4T. R, 730. ( S ) jT.R. 79- Ibid. .587.
 
 206 Of the Poors-Rates. [Chap. VIII. 
 
 for any breach of such rules, are rateable in respect of such occupa- 
 tion (a). 
 
 Therefore the master of a free-school, appointed by the minister and 
 inhabitants of the parish under a charitable trust, whereby a house, 
 garden, tsc. were assigned " for the habitation and use of the master 
 and his family, freely without payment of any rent, income, gift, sum of 
 money, or other allowance, whatsoever," for teaching ten poor boys of 
 the inhabitants, is rateable for his occupation of the same : for it is not 
 like the case of an exemption by Act of Parliament, by which the legis- 
 lature had a right to bind every person ; for here the party was ap- 
 pointed by deed, and only those who are parties to a deed are bound 
 by it (£). 
 
 A corporation seised of lands in fee for their own profit are within 
 the meaning of stat. 43 E/iz. c. 2. inhabitants and occupiers of such 
 lands, and in respect thereof liable in their corporate capacity to be 
 rated to the poor (c). 
 
 But the possessions of the Crown or of the public are not rateable to 
 the relief of the poor : and as to public buildings, those are such as 
 are applied to public purposes (d). 
 
 A warehouse may be rated to the proprietor or occupier according to 
 the use to which it is applied. If it be left for instance to the excise or 
 custom-house for public purposes, the burthen must be borne by the 
 proprietor : but if it be afterwards converted to a private use, the occu- 
 pier of it will be liable to the rates (e). 
 
 Therefore, stables rented by the Colonel of a regiment, by order of 
 the Crown, for the use of the regiment, are not liable to be rated (/). 
 
 But persons holding houses or lands under the Crown, or under any 
 hospital, if for their own separate benefit, are liable to be rated (g). 
 
 The ranger of a royal park, therefore, is rateable, as for inclosed 
 lands in the park yielding certain profits, — But he is not rateable for the 
 herbage and pannage, which yield no profit (£). 
 
 Tolls directed by Act of Parliament to be applied to public purposes 
 were held not to be rateable (z). 
 
 But lands purchased by a company, and converted into a dock, ac- 
 cording to Act of Parliament, which declares that the shares of the 
 proprietors shall be considered as personal property, are rateable in pro- 
 portion to the annual profits (k). 
 
 An exemption in a private statute in 12 Car. 2. of lands given to 
 charitable uses " from all public taxes, charges and assessments what- 
 soever, civil or military," extends to the poors-rate (/). 
 
 (a) i East's R.584. (&) 6 T. R. 333. (0 Cowp. 79. 83, 84. 
 
 00 2 T. R. 375. % Bos. & Pul. 129. (,) 4 T. R. 8. (/> T. R. 375. 
 
 {£) 3 T. R. 497 . (h) 1 T. R. 338. 2 H. Bl. R. 265. (!) 4 T. R. 753. 
 
 (*)lT.R. 319. (O3T. R.6S2.
 
 Sect. III.] Of the Poors-Rates. 207 
 
 The masters in chancery are not rateable as occupiers of their respec- 
 tive apartments in Southampton Buildings under the Paving Act n G. o. 
 <•. 22., for they are for public purposes, and the masters have no indivi- 
 dual benefit in them (a). 
 
 If the owner of a house occupy part of it, he is liable to be rated for 
 the whole; unless there be a distinct occupation of the rest by some 
 other person (£). 
 
 Houses, shops and sheds which render an annual revenue, are rate- 
 able to the poor (r). 
 
 A house and engine for carding cotton, which are rented as one 
 entire subject, and described by the general name of " an engine- 
 house," may be rated. So may the profits of a weighing machine- 
 house (d). 
 
 A person entitled to toll tin r.nd farm dues (which are certain por- 
 tions of the tin raised by the adventurers in the tin-mines) is liable to 
 be rated in respect thereof (e). 
 
 Lead-mines, it has been held, are not rateable to the poor. But a 
 lessee (under the Crown) of lead mines, is rateable for the profits arising 
 from lot and cope, which are duties paid him by the adventurer with- 
 out risk on his part (_/"). 
 
 The lessee of a coal-mine has even been held to be rateable, though 
 he derived no property from the mine; the mine being rateable property. 
 If the property be rateable, and the party rated be in the occupation of 
 it, the Court cannot examine any farther and enquire whether or not 
 the tenant has made an unprofitable bargain. Suppose a landlord makes 
 so hard a bargain with his tenant, that the latter derives no benefit from 
 the farm, must not the tenant be rated to the poor ? The landlord cer- 
 tainly is not liable (g). 
 
 So, a slate-work, ;or as it is improperly called a slate mine) is rateable 
 to the poor (h). 
 
 Linen works are rateable in the hands of the occupier ; though there 
 be risk and expence in the working, and the profits be uncertain (*'). 
 
 The objects of a charitable foundation in the actual occupation of the 
 alms house and lands for their own benefit in the manner prescribed by 
 the rules of the constitution, and liable to be discharged for any breach 
 of such rules, r.re rateable in respect of such occupation (k). 
 
 Where A. having granted to B. a lease for years of way-leaves (for 
 the purpose of carrying coals,) and the liberty of erecting bridges, and 
 levelling hills over certain lands; B. made the waggon ways, inclosed 
 
 (a) 2 Bos. & Pull. 129. il) 4 T. R. 477- (0 I Const's Bott. 115. pi. 144. 
 
 {d) 1 T. R. 727. (0 3 T. R. 480. (/) 1 Bl. R. 389. Cowp. 4,51. 
 
 (g) 5 T. R. 596. ('>) % East's R. 164. (J) i East's R. 534. 
 (i) Ibid. 584.
 
 £08 Of the Poors-Rates. [Chap. VIII. 
 
 them, thereby excluding all other nersons, erected bridges, and built 
 two houses on the lane for his servants ; B. was held to be liable to be 
 rated to the poor for " the ground called the waggon- way (a)." 
 
 But a mere easement is not rateable. Therefore, a party who has an 
 exclusive right to use a way leave, paying sc much per ton for the goods 
 carried over it, is not liable. Qittcre, Whether the owner of the land 
 who receives a profit for such way-leave, is not liable to be rated for 
 such an increase of value : for it is not a grant of the profits of the 
 land (b). 
 
 The proprietors of tithes are liable to be rated ; therefore fish being 
 titheablc by custom, such tithe is rateable : for the legislature intended 
 that, when rates are made for the relief of the poor, every person 
 should contribute according to the benefit which he receives within the 
 parish. Here the parties receive a certain benefit arising from the tithe 
 of fish in this parish, and run no risk whatever. To sa\ chat only pro- 
 perty which is visible should be rated, is carrying the rule of exemption 
 too far ; for oblations and other offerings, which constitute the rectorial 
 or vicarial dues, are rateable {c . — If a rector makes a verbal lease of 
 his tithes for a year, and the lessee let the tithes to the respective land- 
 holders for sixpence per acre more than he is to pay the rector, the lessee 
 is the occupier of the tithes, he having them in such a manner as to 
 make a profit of them (d). 
 
 A sum of money made payable by the owners of lands in lieu of 
 tithes by Act of Parliament, with a clause of distress annexed, is liable 
 to the poors- rate : for it is a mere composition for tithes, which were 
 before subject to the poors rate ; and the superadding a power of dis- 
 tress does not turn it into a rent, but rather proves the contrary; foi if 
 it were a rent, the distress would be incident to it, without any special 
 provision in the Act (e\ 
 
 .-o payment in lieu of tithes settled under a compromise between 
 a parson and a parish, and confirmed by Act of Parliament, are rate- 
 able if . 
 
 A parson is rateable for his tithes as the occupier of a tenement ; so 
 is a vicar ; and the liability is not removed, although lie -ets his tithes to 
 the parishioners; and the tax must be upon the parson and not upon 
 the lessee of his tithes (g). 
 
 Quit-rents, and other casual profits cf a manor, are. not rateable. — 
 But ground rents are rateable h . 
 
 If A rent a quantity of land together with a mineral spring arising 
 therefrom, at a gross yearly rent, he is rateable to the poor for the whole 
 
 (.;; 7T.R. .-98. (A)3T.R. 94. (c) 3 T.R. 5 U. (J) 3 Mod. 62. 
 
 2 Bl. \. nj2. (/) O.Li. 196. 1 Const'* Bott. 164. pi. 184. 
 
 (?) v--i. no.-. 152. nr-p-. ijj- 1 --; '■ ! i' • in :] - 
 
 (*) 1 Bl. R.312. 1 Exit's R. 585. 1 Const'* Lot:. 115. r'. 147. Cowp. 6x9
 
 Sect. III.] Of the Poors-Rates. Qog 
 
 of such rent, though the annual value of the mere land Is only in pro- 
 portion of two to eight of the reserved rent. 
 
 Whether or not chambers in an Inn of Court are rateable is undeter- 
 mined : the fact of their being extra-parochial does not seem to be a 
 sufficient ground of exemption ; for if it were, the poor of extra-paro- 
 chial places would be deprived of the benefit of the statute of Elizabeth, 
 which has been construed to extend to them. — However, most of the 
 old colleges being extra-parochial, are upon that ground not rate- 
 able (a). 
 
 The overseers and churchwardens may make a poors-rate, without the 
 concurrence of the parishioners : and if a rate be necessary, they may 
 be compelled by mandamus to make it. But such rate is not binding till 
 allowed by two Justices out of sessions •, for the sessions cannot order 
 an original rate to be made, and the allowance by the J ustices is com- 
 pellable by mandamus b). 
 
 Ho%v to be made and raised. — A rate being made by the churchwardens 
 and overseers, it is proclaimed in the church, when it becomes formal 
 and public. If any one feel aggrieved by the making of the rate (he 
 need not be damnified by the rate ;) he must appeal to the next ses- 
 vsions ; and if any point of law arise on hearing the appeal, it may be 
 removed into the Court of King's Bench, by certiorari, in order to be 
 determined. 
 
 The stat. 17 G. 2. c. 3. s. 1. after reciting that, Whereas great incon- 
 veniences do often arise in cities, towns corporate, parishes, townships, 
 and places, by reason of the unlimited power of the churchwardens and 
 overseers of the poor, who frequently on frivolous pretences, and for 
 private ends, make unjust and illegal rates in a secret and clandestine- 
 manner, contrary to the true intent and meaning of a statute made in 
 the forty and third year of the reign of Queen Elizabeth, intituled, 
 « An Act for the Relief of the Poor ;" enacts, That the churchward- 
 ens and overseers, or other persons authorized to take care of the poor 
 in every parish, township, or place, shall give or cause to be given pub- 
 lic notice in the church, of every rate for the relief of the poor, allowed 
 by the Justices of the peace, the next Sunday after the same shall have 
 been so allowed ; and that no rate shall be esteemed or reputed valid or 
 sufficient, so as to collect and raise the same, unless such notice shall 
 have been given. 
 
 If a poors-rate be not published in the church on the Sunday next 
 after it is allowed, it is a nullity ; and payment under it cannot be en- 
 forced, though there be no appeal to the sessions Supposing the parish 
 officers were to give notice of the rate at some other public place in the 
 parish, it would not be sufficient, though it may be equally notorious, 
 
 {a) 2 Com. R. 534. 
 
 (i) 2 Ld. Ravin. 1013. 1 Ibid. 798. x Barnard. 137. 1 El. R. 63-
 
 210 Of the Poors-Rate*. [Chap. VIII. 
 
 The omission is a radical defect in the rate itself which nothing cau 
 
 cure (a). 
 
 In an action of trespass by a person whose goods were distrained for 
 non-payment of the rate, the publication of the rate under the stat. 17 
 G. 2. c. 3. must be proved (Z>). 
 
 The superior court cannot enter into the inequality of the rate, un- 
 less it appear to them to be self-evidently, necessarily, and unavoidably 
 unequal : they eannot presume it to be so (c). The Justices at the ses- 
 sions are the proper judges respecting the equality or inequality of the 
 rate (d). The distinction between orders of Justices, and special ver- 
 dicts has been long established : in the latter, where it concludes gene- 
 rally, the whole case must appear upon record ; but the very reverse is 
 the rule which obtains in the case of orders of Justices, for the Court 
 will intend every thing to be right which does not appear to be other- 
 wise, and they will not entertain any doubt upon a subject upon which 
 the Justices did not (e). 
 
 By stat. 17 G. 2. c. 3. the overseers shall permit the inhabitants to 
 inspect every rate at all seasonable times, on payment of ij-. and shall 
 on demand give copies thereof to any inhabitant at the rate of 6d. for 
 twenty-four names : on penalty of 2c7. for refusal. And true copies 
 of all rates for the relief of the poor shall be entered in a book within 
 fourteen days after any appeal from any such rate is determined, which 
 the overseers shall attest by their names thereto ; which book shall be 
 kept for public perusal, s. 2, 3, 13. 
 
 And overseers neglecting to execute tills Act, shall, if no other pe- 
 nalty is provided, forfeit to the poor not exceeding 5/. nor less than 20/. 
 s. 14. And where there are no churchwardens, overseers may perform 
 all matters relating to the poor. s. 15. 
 
 Where a statute says that a company shall not be liable to any rate^ 
 which had not usually been assessed, it only means, that they shall not 
 have any other kind of rate imposed on them than those which were 
 then levied, but does not fix the proportion of the rate (/). 
 
 Where to be collected. — A person shall be rated for profits, where they 
 become due, not where they happen to be received (g). 
 
 Where a navigation ran from A. to B. through several intervening 
 parishes, and the toils for the whole navigation were collected in those 
 two parishes, it was holden that they might be assessed in the two pa- 
 rishes for the whole amount according to the proportion collected in 
 each (£). 
 
 A barge Way and toll gate in the hamlet of Hamptonivick, purchased 
 by the city of London, by virtue of stat. 17 G. 3. c. 18. (for completing 
 the navigation of the Thames, and empowering the city to levy tolls and 
 
 (.O4T. R. 369. {L) 8T.R.664. (r) 4 Uur. 2494. (</)6T.R. 665,6. 
 
 {*) 2 Str. 932, 975. (/)2'f.R.66o. {g) Ibid. (*) Ibid.
 
 Sect. III.] ' Of the Poors-Rates. 211 
 
 duties towards the charges of navigation,) was held to be rateable for 
 such tolls as became clue there, notwithstanding the tolls were collected 
 in a different parish (a). 
 
 The grantee of the navigation of the river Ouse, is rateable to the 
 poor of Cardington in respect to the tolls arising there, though he him- 
 self resides, and the tolls are collected, elsewhere (b). 
 
 So, where a Navigation Act empowered the proprietors to take so 
 much per mile per ton for all goods carried along the canal, it was 
 holden, that they were rateable to the poor for the tolls in the different 
 parishes where the tolls became due, that is, where the respective 
 voyages finished, though for their own convenience they were autho- 
 rized to collect the tolls where they pleased, and did in fact collect them 
 in other parishes (r). 
 
 So, where by a Navigation Act the proprietor was entitled to a toll 
 of 4.C per ton for goods carried from A, to B. or from B. to A. and to 
 a proportionable sum for any less distance, and was also enabled to ap- 
 point any place of collection ; it was holden that the tolls for goods car- 
 ried the whole voyage from A. to B. were rateable in B. though in fact 
 they were collected in a parish between A. and B, because the tolls be- 
 come due where the voyage is completed (d). 
 
 County Justices cannot rate a parish within their jurisdiction, in aid 
 of another parish, lying within a borough which has an exclusive juris- 
 diction, though within the same hundred and county (V). 
 
 By stat. 17 G. 2. c. 38. s. 12. it is enacted, That where any person 
 or persons shall come into or occupy any house, land, tenement, or he- 
 reditament, or other premises, out of, or from which any other person 
 assessed shall be removed, or which at the time of making such rate was 
 empty or unoccupied, that then every person so removing from, and 
 every person so coming into, or occupying the same, shall be liable to 
 pay such rate in proportion to the time that such person occupied the 
 same, respectively in the same manner, and under the like penalty of 
 distress, as if such person so removing had not removed, or such person 
 so coming in or occupying had been originally rated and assessed in such 
 rate j which said proportions, in case of dispute, shall be ascertained 
 by two justices of the peace. 
 
 By stat. 43 Eliz. c. 2. s. 4. {mite} the present as well as subsequent 
 overseers are empowered to levy the poors-rate and arrears thereof by 
 distress, as therein directed. And the warrant may be granted as well 
 by city Magistrates as by country Justices ; (j-. 8.) although the distress 
 has relation to taxes to which they are liable, 16 G. 2, c, \Z t s. 1, 
 
 Distress for Poors. Rate.— By stat. : 7 G. 2. c. 38. s. 7. " for the more 
 effectual levying money assessed for the relief of the poor," it is enacted, 
 
 W4T.R.«. (/•) Cowp. s'ii, (0 ST.P.,340, QjT, R..-4; 
 
 (,) IbM. 778.
 
 £'12 Of the Poors-Rates. [Chap. VIIL 
 
 That the goods of any person assessed and refusing to pay, may be le- 
 vied by warrant of distress, not only in the place for which such assess- 
 ment w \ rm .'■.. but in any other place within the same county or pre- 
 cinct ; and u sufficient distress cannot be found within the sr.id county 
 or precinct on oath made thereof before some Justice of any other county 
 or precinct, (which oath shall be certified under the hand of such Justice 
 on the said warrant,) such goods may be levied in such other county or 
 precinct by virtue of such warrant and certificate-, and if any person 
 shall find him or herself aggrieved by such distress as aforesaid, it shall 
 and may be lawful for such person to appeal to the next General or 
 Quarter Sessions of the Peace for the county or precinct where such as- 
 sessment was made ; and the Justices there are hereby required to hear 
 and fully determine the same. And in case any ptrson refuse to pay 
 the present overseers, the succeeding overseers may levy the arrears and 
 reimburse their predecessors. [See also 41 G. 3. c. 23. s, 9.] 
 
 By stat. 27 G. 2. c 20. the Justices granting such warrant of distress 
 shall therein order the goods so to be distrained to be sold within a cei'- 
 tain time to be limited in such warrant, so as it be not less than four 
 days, nor more than eight days ; unless the sum for which such distress 
 shall be made, together with the reasonable charges of taking and keep- 
 ing such distress, be sooner paid. And the officer may deduct the 
 charges of taking, keeping, and selling such distress, out of the money 
 arising from the sale, and also the sum distrained for. But he shall, if 
 required, shew the warrant to the party distrained upon, and shall per- 
 mit a copy thereof to be taken, s. 1, 2. 
 
 A distress and sale, indeed, given by statute, is in the nature of an 
 execution. 
 
 By stat. 28 G, 3. c. 49. s. 12. Justices acting for adjoining counties 
 and personally resident in one of them, may grant warrants of distress : 
 and the acts of any officer in obedience thereto shall be as valid as if 
 they had been granted by Justices acting for the proper county ; but 
 such warrants must be directed and given in the first instance to the 
 constable or other officer of the county to which they relate, and such 
 constable, C5"V. may take persons apprehended, cv. before Justices in 
 the adjoining county. And by stat. 33 G. 3. c. 55. where sufficient 
 distress cannot be found within the jurisdiction of the Justice who 
 granted the warrant, it may, on being backed by a Justice of another 
 county, be executed therein. Also by 28 G. 3. c. 49. s. 4. Justices for 
 counties at large may act as such within any city being a county of itself 
 situate therein or adjoining to such county, provided they are Justices 
 for such city. 
 
 By 17 G. 2. €, 38. s. 8. to prevent all vexatious actions against over- 
 seers of the poor, it is enacted, that where any distress shall be made 
 for any sum of money justly due for the relief of the poor, the distress
 
 Sect. III.] Of the Poors-Rates. £13 
 
 itself shall not be deemed to be unlawful, nor the party making it be 
 deemed a trespasser, on account of any defect, or want of form in the 
 warrant for the appointment of such overseers, or in the rate or assess- 
 ment, or in the warrant of distress thereupon ; nor shall the party dis- 
 training be deemed a trespasser cb initio, on account of any irregu- 
 larity, which shall be afterwards done by the party distraining, but 
 the party aggrieved by such irregularity, shall or may recover full 
 satisfaction for the special damage sustained thereby, and no more, 
 in an action of trespass, or on the case, at the election of the plaintiff 
 or plaintiffs. 
 
 Note. A warrant may be made to distrain before the time for which 
 the rate is made is expired (a). The practice in those cases has been 
 to grant a conditional warrant to distrain ; and by Holt, C. J. communis 
 error facit jus (b). 
 
 A constable may levy a poors-rate on goods in another parish ; for 
 though he cannot execute out of his own district a warrant directed ge- 
 nerally to ail constables, yet he may execute any where within the li- 
 mits of the Justice's jurisdiction, a warrant directed particularly to 
 him (c). 
 
 A distress for a poors rate for lands not in the occupation of the 
 plaintiff may be replevied notwithstanding the Sessions on appeal had 
 confirmed the rate : the determining that a man may be assessed for what 
 he does not occupy being an excess of jurisdiction (*/). 
 
 The granting of a warrant of distress by magistrates to enforce pay- 
 ment of a poors-rate, is a judicial, not a ministerial act \e). Before a 
 distress for the rate be levied, a summons should go to the party, that 
 he may have an opportunity to shew that he has paid for it, or otherwise 
 to exonerate himself : for a poors-rate cannot be distrained for before it 
 be demanded and the payment thereof refused (f). $ 
 
 If a landlord tender the poors rate for his tenant, the overseers must 
 receive it, and a warrant ought not to be granted to distrain upon the 
 tenant (g). 
 
 If a landlord direct a tenant, who is overseer of the poor, to pay on 
 the landlord's account, rates irregularly assessed on him, and promises 
 that the levies shall eat out the rents, the tenant may set them off, or 
 prove them as payment in an action for use and occupation (/.•>). 
 
 If personal property be rateable, it is not to be done at random, and 
 to leave the party rated to get off as he can ; but the officer making the 
 sate must be able to support what he has done by evidence (i). 
 
 Where a person is overcharged in a poors -rate, the Sessions may re* 
 
 (a) Bull. N. P. 3z. (i) i Const's Bott. 242. pi. 230. („•) 1 Ld. Raym. 545. 
 
 (J) 2 Bl. R. 1330. (0 7 T. R. 270. (/) 1 Const's Bott. 242. pi. 230. 
 
 iV) Ibid, 212.. pi. 239. Dou*. 4:6, (b) 3 Taunt. 76. (»') 4 T. R. 777,
 
 214 Of the Poors-Rates. [Chap. VIII. 
 
 lieve him on appeal, and amend the rate, by lessening the sum assessed 
 on him,' under the 17 G. 2. c, 38 (a), 
 
 The stat. 21 J, 1. c. 12. enacts, That Justices of the peace, mayors, . 
 bailifTs, churchwardens, and overseers of the poor, constables, and other 
 peace oIuc-ts, may plead the general issue, and give the special matter 
 in evidence. It also enacts, That any action brought against them. shall 
 be laid in ihe proper county; and if upon the general issue pleaded the 
 fact shah appear to be done in another county, the jury shall find the 
 defendant not guilty. 
 
 Ly stat. 7 J. 1. c. 5. If case, trespass, battery or false imprisonment 
 shall be btu'ght -gainst any Justice of die peace, mayor, bailiff, con- 
 stable, CSV. concuning any thing by them done by virtue of their office, 
 thev may plead the general issue, &c. and if the verdict shall pass with 
 the defendant or the plaintiff shall be nonsuited, or suffer any disconti-. 
 nuance thereof, the defendant shall have his double costs allowed by the 
 Judge before whom the matter is tried. 
 
 This act lias been construed to extend to under-sheriffs and deputy- 
 constrb^s, though they are not particularly mentioned [b\ 
 
 Noie. ihe 21 J. 1. c. 12. extends this Act to churchwardens and 
 overseers of the poor (c). 
 
 The officers must get a certificate from the Judge, that the action was 
 brought against him for something done in the execution of his office, 
 in order to entitle himself to double costs (7/). 
 
 Likewise the stat. 24 G. 2. c. 44. enacts, that no writ shall be sued 
 out against a Justice for what he shall do in the execution of his office^ till 
 noiiee in writing of such intended writ shall have been delivered to him, 
 or left at the usual place of his abode a month before, and the Justice 
 may tender amends, and in case the same is not accepted, plead such 
 tender \ft bar to the action, together with the plea of not guilty, and any 
 other plea with leave of the Court ; and if upon issue joined thereon the 
 jury shall find the amends so tendered to have been sufficient ; then 
 they shall give a verdict for the defendant. It likewise enacts, That no 
 action shad be brought against any constable or other officer, or any 
 other person acting by his order, for any thing done in obedience to a 
 Justice's warrant, until demand be made of the perusal and copy of such 
 warrant, and the same has been refused for the space of six days ; and 
 in case the warrant be shewed and a copy taken, and afterwards an ac- 
 tion be brought against the constable, without making the Justice who 
 signed or sealed the warrant, a defendant, the jury shall, on producing 
 the warrant, find a verdict for the defendant, notwithstanding any de- 
 fect of jurisdiction in the Justice ; and if such action be brought jointly 
 against the Justice and hiirn, upon producing the warrant, the jury shall 
 
 0) 3 T. R. 623. (!>) Bull, N. P. 332. (0 Ibid. (/> Ibid.
 
 Sect. III.] Of the Poors-Rates. 215 
 
 find for him : and if they find against the Justice, the plaintiff shall re- 
 cover the costs he is to pay to such defendant against the Justice, with 
 a proviso, that if the Judge certify that if the injury was wilfully and 
 maliciously committed, the plaintiff shall be entitled to double costs : 
 and a proviso likewise, that such action shall be commenced within six 
 calendar months after the act committed. 
 
 The above Act extends only to actions of tort. 
 
 The officer must prove that he acted in obedience to the warrant; and 
 where the Justice cannot be liable, the officer is not within the protec- 
 tion of the Act (a). 
 
 If a man be imprisoned on a Justice's warrant on the first day of 
 January, and kept in prison till the first day of February, he will be in 
 rime if he brings his action within six months after the first of February; 
 for the whole imprisonment is one entire trespass. The Justice having 
 pleaded tender of amends, the plaintiff obtained a rule for the defendant 
 to bring the money into Court for the plaintiff to take the same, upon 
 discontinuing his action (/>). 
 
 An overseer of the poor, who distrains for a poors-rate under a Justice's 
 warrant, is an officer within the protection of the Act (c). 
 
 But a churchwarden taking a distress for a poors-rate under a warrant 
 of magistrates, is intitled to the protection of 24 G. 2. c. 44. in having 
 the magistrates made defendants with him in an action of trespass (d). 
 
 Upon a distress for a poors-rate being replevied, the Justices who 
 granted the warrant need not be joined, according to the directions of 
 the 24 G. 2. c. 44. ; for replevin is an action in rem, to which the sta- 
 tute has never been held to extend : and so (it was said) with respect to 
 an action of trespass, if an excess of jurisdiction has been, and the as- 
 sessment was coram noji judice ; for such is not like the case where the 
 Justice hath a general jurisdiction, and whose warrant the officer is im- 
 plicitly bound to obey (e). 
 
 Overseers cannot be guilty of trespass in levying a poors-rate by dis- 
 tress, although the rate is objectionable, if the party has not appealed 
 to the Sessions : neither does any defect in the rate unappealed from, 
 avoid the warrant (f). 
 
 No action of debt will lie for a poors-rate (g). 
 
 Whether the representative of a party assessed to the poors rate be 
 liable to distress for the rate, seems doubtful. It seems cleai - , however, 
 that the representative is entitled to notice, before his testator's or intes- 
 tate's goods are distrained : in order that he may have the same oppor- 
 tunity of exempting them from the distress, as his testator or intestate 
 would have had (/>). 
 
 0) 3 Bur. 1766. (£) Bull. N. P. 44. (0 Ibid. I.offt. 249. (</) 2 Bl. R. 1 33 r. 
 
 '<) 7 T. R, 270. (/) 1 Const's Bote. 256. pi. 242. 1 Bur. 587, (^) % Bur.1157 
 
 (A) Ibid. 1 Bl. R. 2S4. s. c,
 
 216 Of the Poors-Rates. [Chap. VIII. 
 
 As to what is distrainable for a poors -rate, the principle of a distress 
 being a pledge, does not in this case obtain as it does ifr respect of rents 
 and amerciaments. In this instance the duty is personal, and the thing 
 distrained is in satisfaction of the non-performance of it, and not as in 
 the old common law distresses, in the nature of a nomitie poena , to compel 
 payment (a). The solid distinction is, that the seizing under the 43 
 JSIiz and such like Acts of Parliament, is but partly analogous to the 
 common law distress (as being replevisable, &c); but is much more 
 analogous to the common law execution ; like a fieri facias^ where the 
 surplus, after sale, shall be returned (£). 
 
 Therefore money, it seems, may be distrained for a poors-rate. So 
 the tools of a man's trade, his wearing apparel, and all other articles 
 necessary to enable him to earn the money for which the goods are 
 taken \c). So, beasts of the plough are distrainable for the poors-rate, 
 even although there were other distrainable goods on the premises ; on 
 the principle of analogy to an execution (d). 
 
 The Appeal — With respect to the particular grounds and the course of 
 appeal, the reader is referred to stats. 5 G. 2. c. 19. 17 G. i.e. 38. & 
 41 G. 3. c. 23. and to the cases thereon in 1 Const 's Bott"s Poor Laws. 
 
 (1) 1 Bur. 588. (l>) 1 Willes, 169. (c) 1 Const's Bott. 242, pi. 230. p. 229. 
 
 00 1 Bur. j88.
 
 [ 217 ] 
 
 CHAPTER IX. 
 
 0/ the general. Incidents to Leases {continued.) 
 
 Section I. Of Waste; wherein of Fixtures. 
 Section II. Of Common of Estovers. 
 Section' III. Of Emblements. 
 
 Section I. Of Waste, 
 
 T T^ASTE, vastuniy is a spoil or destruction in houses, gardens, 
 * * trees, or other corporeal hereditaments, to the disherison of 
 him that hath the remainder or reversion in fee-simple or fee-tail (a). — 
 Waste, is either voluntary, which is a crime of commission, as by 
 pulling down a hoase ; or it is permissive, which is a matter of 
 omission only, as by suffering it to fall for want of necessary repara- 
 tions; both of which are equally injurious to him that hath the inherit- 
 ance (b). Voluntary waste chiefly consists in ist felling timber-trees; 
 2dly, pulling down houses ; 3^1y, opening mines, or pits; 4thly, chang- 
 ing the course of husbandry; 5'hly, destroying heirlooms (r). 
 
 Whatever does a lasting damage to the freehold or inheritance is 
 waste ; therefore, removing wainscot, floors, or other things once 
 fixed to the freehold of a house, is waste. With respect however to 
 what shall be deemed fixtures of such a nature, or under such cir- 
 cumstances as that they can or cannot be removed by an out-going 
 tenant, or taken by his executor, or by the heir, the law is much less 
 strict at this day, than it used to be. The old and general rule of law 
 was, that whatever was fixed to the freehold became part of it, and 
 could not be taken away. But of late years there have been excep- 
 tions to this rule (d). The first is between landlord and tenant, the 
 latter of whom may now take away during the term all chimney- 
 pieces, and even wainscot put up by himself; so of beds fastened to 
 
 (a) Co. Lit. 53. (k) Wood's Inst. 521, 
 
 (0 1 Cruise's Di£. tit. 3.S. 14, (d) 3 Atk. 16. n. 1. 
 7
 
 21 8 Of Waste ; wherein of Fixtures. [Chap. IX. 
 
 the celling with ropes ; nay even though nailed ; and all such things 
 necessary for trade, as brewing utensils, furnaces, coppers, fire-engines, 
 cyder-mills, &c. as he has himself put up or erected (a). 
 
 But such removal must be •within the term, otherwise he will be 
 deemed a trespasser. Thus, where tenant for years made an under- 
 lease of a house to J. S. who was by trade a soap-boiler : J. S. for 
 the convenience of his trade, put up vats, coppers, tables and parti- 
 tions, and paved the back-side, &c. and now upon a fieri facias against 
 J. S. which issued on a judgment in debt, the 'Sheriff took up all 
 these things, and left the house stripped and in a ruinous condition, 
 so that the first lessee was liable to make it good, and therefore brought 
 a special action on the case against the Sheriff and those that bought 
 the goods, for the damage done to the house. Et per Holt C. J. it 
 was held ; ist. that during the term, the soap-boiler might well re- 
 move the vats he set up in relation to trade, and that he might do it 
 by the common law, (and not by virtue of any special custom) in 
 favour of trade and to encourage industry : but after the term, they 
 became a gift "in law to him in reversion, and are not removeable ; 
 2dly. that there was a difference between what the soap-boiler did to 
 carry on his trade, and what he did to complete the house, as hearths 
 and chimney-pieces, which he held not removeable ; [the latter how- 
 ever at least, are now removeable;] 3aly, that the Sheriff might take 
 them in execution, as well as the under-lessee might remove them ; and so 
 this was not like tenant for years without impeachment -of waste: in 
 that case he allowed the Sheriff could not cut down and sell, though 
 the tenant might ; and the reason is, because in that case, the tenant 
 hath only a bare power without an interest, but here the under-lessee 
 hath an interest as well as a power, as tenant for years hath in standing 
 corn, in which case the Sheriff can cut down and sell (b). 
 
 Where the tenant, however, has by law a right to carry away any 
 erections or other things, on the premises which he has quitted, the 
 inclination of Lord Kenyorfs mind was that he had a right to come 
 on the premises, for the purpose of taking them away : but as to 
 that point, the defendant in the principal case had let judgment go by 
 default (r). 
 
 In trover for ten load of timber, the case was, that the defendant 
 had been tenant to the plaintiff, and erected a barn upon the premises, 
 and put it upon pattens and blocks of timber lying upon the ground, 
 but not fixed in or to the ground : and upon proof that it was usual 
 in that country to erect barns so, in order to carry them away at the 
 end of the term, a verdict was given for the defendant (d). But 
 though Lord Chief Justice Treby thought proper in that case, to take 
 
 (a) 1 Atk. 477, 8. (*) 1 Atk. 477- * Salk, 3<53. 
 
 M -1 Esp. R. .0. 00 Bull. N. P. 54-
 
 Serf. I.] Of Waste; wherein of Fixtures. 219 
 
 advantage of the custom of the country, yet it is apprehended that it? 
 would now be determined in favour of the tenant without any diffi- 
 culty.— But when a purchaser of lands had brought an ejectment 
 against the tenant from year to year, and the parties had entered into 
 an agreement that judgment should be entered for the plaintiff, with a 
 stay of execution till a given period ; though in such agreement no 
 mention was made of .my buildings or fixtures, it was held that the 
 tenant could not in rue mean t : me remove buildings (a wooden stable 
 standing upon rollers) or fixtures (posts or rails) from the premises, 
 which he haa himself erected before action brought ; because the fair 
 interpretation of such agreement was, that the defendant should in 
 the mean time do no act to alter the premises, but should deliver them 
 up in the same condition, as when the agreement was made, and 
 judgment signed. For though he would clearly have been entitled to 
 take away the articles, if he had done it during the continuance of 
 his " j :".a from year to year, yet by the agreement the parties had made 
 a new contract- which put an end to the term (a). 
 
 I: ho .vever, a man sells a house where there is a copper, or a brew- 
 house wncre there are utensils, unless there was some considera- 
 tion given for them, and a valuation set upon them, they would not 
 pass (*). 
 
 In an action of covenant brought by the plaintiff against the de- 
 fendant who had been his lessee, under a lease containing a covenant 
 that the lessee should leave all the buildings which then were, or 
 should be erected en the premises during the term, in repair, Sec. the 
 breach assigned wa.s, that the defendant took down and carried away 
 two sheds, which had been erected during the term. The defendant 
 pleaded performance cf the covenants and issue was taken on the 
 breach as above assigned. The buildings in question were two sheds, 
 called Dutch Lain,, which had been erected by the defendant during 
 his term ; and which his counsel contended he had a right to remove. 
 Lord Kevyon.- If a tenant will build upon premises demised to him a 
 substaatnl addition to the house, or add to its magnificence, he must 
 leave • -s additions at the expiration of the term, for the benefit of his 
 landlord : bat the law will make the most favourable construction for 
 the tenant, where he has made necessary and useful erections for the 
 benefit of his trade or manufacture, and which enable him to carry it 
 on with more advantage. It has been held so in the case of cyder- 
 miils, and in other cases; and I shall not narrow the law, but hold 
 erections of this sort, made for the benefit of trade, or constructed as 
 the present, to be removeable at the end of the term. It was then 
 contended, that by the express words of the covenant the tenant was 
 
 (a) 1H.Bl.a58. (■'•} iAtIi,4/S.
 
 £20 Of Waste; wherein of Fixtures. [Chap. IX. 
 
 to leave all erections on the premises at the end of the term Lord 
 Kenyan. — I am aware of the full extent of that, and not quite sure 
 that it concludes the question. It means that the tenant should leave 
 all those buildings which are annexed to and become part of the rever- 
 sionary estate (a). [See Lord Ellenborougtis Notice of this Nisi Prius 
 Case, in Ekues v. Afaiv, i East's R. 38.] 
 
 A covenant by a tenant to yield up in repair at the expiration of his 
 lease all buildings which should be erected during the term upon the 
 demised premises includes buildings erected and used by the tenant for 
 the purpose of trade and manufacture, if such buildings be let into 
 the soil, or otherwise fixed to the freehold, but not where they merely 
 rest upon blocks or pattens (£). 
 
 Fixtures. — Hangings, pier-glasses, &c though forming part of the 
 wainscot and fixed with nails and screws to the freehold, are" not to 
 be taken as part of the freehold, but are removeable by the lessee of 
 the house (c). — So marble chimney-pieces may be removed by the 
 tenant (d). 
 
 To trespass for breaking and entering, isfc. and pulling down and 
 taking away certain buildings, £sV. the defendant, as to the breaking 
 and entering, suffered judgment by default, and pleaded not guilty as 
 to the rest. It was held, that such plea was sustained by shewing 
 that the building taken away, which was of wood, was erected by 
 him as tenant of the premises, on a foundation of brick, for the pur- 
 pose of carrying on his trade, and that he still continued in possession 
 of the premises at the time when, £sV. though the term was then ex- 
 pired. — At the trial, Lord Kenyan observed, that the mere erection of 
 a chimney would not prevent the right of taking away the rest of the 
 building, which surrounded it, where the trade was carried on. In 
 Dudley and Dudley, a steam-engine, to which a chimney necessarily 
 belonged, was held to be removeable. Modern determinations have, 
 for the benefit of trade, allowed many things to be removed, which 
 the rigour of former determinations, considering them as fixed to the 
 freehold, prohibited. The case of cyder-mills is familiar to us all. 
 The construction ought to be favourable to the tenant, and my opinion 
 is, that he was warranted in removing the building in question ; but 
 I will reserve the point (e). And upon the case being argued after- 
 wards, his Lordship said, That the old cases upon this subject leant 
 to consider as realty whatever was annexed to the freehold by the 
 occupier ; but in modern times the leaning has 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. What tenant will lay out his money 
 
 (") 3 Esp. R. it. {b) 1 Taunt. 19. (<r) I P. Wins. 9.1, 
 
 «/ 1 Atk. 477, (?) 4 Esp. R. 3Z>
 
 Sect. I.] Of Waste ; wherein of Fixture.?: QQi 
 
 in costly improvement of the land, if he must leave every thing be- 
 hind him which can be said to be annexed to it ? Shall it be said, that 
 the great gardeners and nurserymen in the neighbourhood of this me- 
 tropolis, who expend thousands of pounds in the erection of green- 
 houses, hot-houses, &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 thousand, in tho 
 necessary course of their trade? If it were otherwise, the very object 
 of their holding would be defeated. This is a description of property 
 divided from the realty ; and some of the cases have even gone further 
 in favour of the executor of tenant for life against the remainder-man, 
 between whom the rule has been holden stricter j for it has been de- 
 termined that the executor of tenant for life was entitled to take away 
 the fire-engine of a colliery. The case of Fitzherbert v. Shaw (i if. 
 BL R. 258. vide ante.) turned upon the construction of an agreement 
 that such things should be left on the premises, and decided nothing 
 against the general principle. Here the defendant did no more than 
 he had a right to do: he was in fact still in possession of the premises 
 at the time the things were taken away, and therefore there is no pre- 
 tence to say that he had abandoned them. And by Lawrence J, it is 
 admitted that the defendant has a right to take these things away during 
 the term : and all that he admits upon this record against himself by 
 suffering judgment to go by default as to the breaking and entering 
 is, that he was a trespasser in coming upon the land, but not a 
 trespasser de boils asportatis ; as to so much therefore he is entitled to 
 judgment (a). 
 
 Another exception is between tenant for life or in tail, and the 
 reversioner or remainder-man. The former also, may remove brewing 
 utensils, furnaces, coppers, fire-engines, cyder-mills, cs'c. which he 
 has erected,, and by which he not only enjoys the profit of the estate, 
 but carries on a species of trade : and if he does not remove them in 
 his lifetime, they go to his executor (b). Reasons of public benefit 
 and convenience have tended to establish this principle j and indeed it 
 is but consonant to common ideas of justice: as for instance, in the 
 case of a fire-engine, it is very well known that little profit could be 
 made of coal-mines without such an engine ; and tenants for life 
 would be discouraged in erecting them, if they must go from their 
 representatives to a remote remainder-man, when the tenant for life 
 might possibly die the next day after the engine was set up (c). So, 
 emblements go to the executor, and not to the remainder-man, the 
 public being interested in the produce of corn and ether grain. But 
 corn growing belongs, it is said, to a devisee of land, and not to the 
 
 0) % East's R. 3j. (J) 1 A*.k, 477, 3. (.-J 3 Atk, i<5,
 
 £22 Gf Waste > wherein of Fixtures. [Chap. IX. 
 
 executor. Though a devisee of goods, stock and moveables shall 
 take it from both (a). Hangings, chimney-glasses, or pier glasses, 
 being matters of ornament and furniture, do not go with the house, 
 but to the executor (£). 
 
 The rule however still holds as between heir and executor : the free- 
 hold descending on the heir, the executor cannot enter to take away 
 fixtures without being a trespasser (c). Indeed, in questions between 
 the heir or devisee and the executor, cupboards, presses, lockers and 
 other fixtures of the like kind, may with propriety enough be con- 
 sidered as annexed to and parts of the freehold. The law will 
 presume, that it was the intention of the owner under whose bounty 
 the executor claimeth, that they should be so considered, to the 
 end that the house might remain to those, who by operation of law or by 
 bequest should become intitied to it, in the same plight he put it, or 
 should leave it, entire and undefaced. But in capital cases Mr. Justice 
 Foster (d) was of opinion, that such fixtures which merely supply 
 the place of chests and other ordinary utensils of household, should be 
 considered in no other light than as mere moveables, partaking of the 
 nature of those utensils, and adapted to the same use. Therefore in 
 favour of life, a distinction is to be taken between cases relative to mere 
 property and such wherein life is considered. — An action of trover (e) 
 was brought by the plaintiffs as administrators of Robert Lcwton against 
 the defendant for certain salt-pans which were put into wyche houses in 
 Cheshire. The pans were brought in pieces. The wyche houses are of 
 no use without the pans, nor is the brine of any use without them. 
 There was room for the workmen to walk round them within the build- 
 ing. The pans were fixed by brick and mortar to the floor of the 
 building ; and there was a furnace under it. The building and lodging 
 rooms at the end of it ; which building, with the pans, let for 8/. a 
 week. The question was, whether these pans were to go to the exe- 
 cutor or to the heir. The ancestor was seized in fee. Lord Mansfield 
 delivered the opinion of the Court. All the old cases (and there are 
 some to be found in the year-books, see Shep. Touch. 469, 470.) lean in 
 favour of the heir, and so rigidly, that if a tenant was to put up a 
 wainscot or pictures let into the wainscot, &c. he could not take them 
 away. There has been a relaxation of two species of property, the one 
 between landlord and tenant, as marble chimney-pieces, and things 
 which are necessary for trade, l£c. and in the removal of these there is 
 no hurt to the landlord. The tenant says, I leave the premises just as 
 I found them. The other species in which there has been a relaxation 
 is, between tenant for life and the remainder-man. If the former has 
 been at any expence for the benefit of the estate, as by eVecting a fire- 
 
 (a) Bui;. N. P. 34. (/■) 1 p. Wins. 94. (0 1 Atk. 477. (-') Post. 109. 
 
 (?) Lawton v. Lawtou, B. R. Past 22 G. 3. cited n. 1. 3 Atk. 16. & 1. H. Bl. R. 259. 11. a.
 
 Sect. I.] Of Waste ; wherein of Fixtures. 223 
 
 engine, or any thing else by which it may be improved, in such case it 
 has been determined that the fire-engine should go to the executor, on a 
 principle of public convenience ; being an encouragement to by out 
 money in improving the estate, which the tenant would not otherwise 
 he disposed to do. The same argument may be applied to the case of 
 tenant for life and remainder-man, as to that of landlord and tenant ; 
 namely, that the remainder-man is not injured, but takes the estate in 
 the same condition as if the thing in question had never been raised. 
 The tenant for life will not erect such things unless they can go to his 
 executor. But I cannot find any case (except that about the cyder- 
 mill) where there has been any relaxation between the heir and exe- 
 cutor. That case is not printed at large, but it most probably turned 
 ■pon a custom. Now consider the present case, which is very strong. 
 A salt brine in the county of Cheshire is a most valuable inheritance. 
 But there is no enjoying the inheritance without the buildings and salt- 
 pans : they arc of no use but for that purpose and the inheritance is of 
 no value without them. To the executors they can be worth no more 
 than old iron and old bricks, if taken away : he could never mean there- 
 fore, to give them to the executor, and put him to the expence of taking 
 them away without any advantage to him, who could only have the old 
 materials, or a contribution from the heir in lieu of them. Here the 
 ancestor erected them at his own expence on his fee-simple. It is im- 
 possible that he should mean them to be severed at his death \ for they 
 are worth nothing to an executor, ?.v.l very valuable to the heir, who 
 gains Si. per week by them. On the reason of the thing therefore, and 
 the intention of the testator, they must go to the heir. It would have 
 been a very different consideration, if this salt-brine had been let to a 
 tenant who had erected these pans. There he might have said, I was 
 at the expence of erecting them, and therefore my executor should have 
 them ; and I leave the estate as I received it : that as I stated before, 
 would be for the encouragement and convenience of trade, and the be- 
 nefit of the estate. Therefore we are of opinion they go to the heir. 
 Judgment for the defendant. 
 
 This subject, so important to every one in the situation of landlord 
 or tenant, is treated in a manner so elaborate and perspicuous by the 
 present learned and noble Chief Justice of the Court of King's Bench, 
 in the judgment delivered by him in the case of Elwes v. Maw (a), 
 that the information which we are desirous to convey to our readers 
 would be incomplete were we to forbear to insert any part thereof. 
 
 The immediate point decided was, that a tenant in agriculture, who 
 erected at his own expence and for the mere necessary and convenient 
 occupation of his farm, a beast-house, carpenter's shop, fuel house, 
 c-art-house, pump-house, and fold-yard wall, which buildings were of 
 
 0) 3 East's R. -S.
 
 224 Of Waste; 'wherein of Fixtures. [Chap. IX. 
 
 brick and mortar, and tiled, and let into the ground, cannot remove 
 the same, though during his term, and though he thereby left the pre- 
 mises in the same state as when he entered. 
 
 In delivering the judgment of the Court, Lord Ellenberougb, having 
 Stated the above facts of the case, said, The question for the opinion 
 of the Court was, Whether the defendant had a right to take away 
 these erections ? Upon a full consideration cf all the cases, we are 
 all of opinion that the defendant had not a right to take away these 
 erections, 
 
 Questions respecting the right to what are ordinarily called fixtures, 
 principally arise between three classes of persons. est. Between dif- 
 ferent descriptions of representatives of the same owner of the inherit- 
 ance, viz. between his heir and executor. In this first case, i. e. as be- 
 tween 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 affixed thereto. 
 2dly. Between the executors of tenant for life or in tail, and the re- 
 mainder man or reversioner ; in which case the right of fixtures is con- 
 sidered more favourabTy for executors, than in the preceding case be- 
 tween heir and executor. The 3d case, and that in which the greatest 
 latitude and indulgence have always been allowed in favour of the claim 
 to having any particular articles considered as personal chattels, as 
 against the claim in respect of freehold or inheritance, is the case be- 
 tween landlord and tenant. 
 
 But the general rule on this subject is that which obtains in the first 
 mentioned case, i, c. between heir and executor •, and that rule was 
 found in the year-book 17 E. 1. p. 518. and laid down at the close of 
 Herlakenden* 's case, (4 Co. 64. and Co. Lift. 53. in Cooke v, Humphrey 9 
 fifoore, 177. and in Lord Darby v. Asquith 9 Hob. 234. and in other 
 cases :) is that where a lessee, having annexed any thing to the freehold 
 during the term, afterwards takes it away, it is waste But this rule 
 at a very early period had several exceptions attempted to be engrafted 
 upon it, and which were at last effectually engrafted upon it, in favour 
 of trade and of those vessels and utensils which are immediately sub- 
 servient to the purposes of trade. In the year-book 42 E. 3. 6. the 
 right of the tenant to remove a furnace erected by him during his term 
 is doubted and adjourned. In the year-book of the 20 H. 7. 13. a £5* 
 />. which was the case of trespass against executors for removing a fur- 
 nace fixed with mortar by their testator and annexed to the freehold, 
 and which was holden to be wrongfully done, it is laid down, that " If 
 a lessee for years make a furnace for his advantage, or a dyer make his 
 vats or vessels to occupy his occupation during the term, he may remove them : 
 but if he suffer them to be fixed to the earth after the term , they then 
 belong U the lessor. j\nd so of a baker. A.r.d it is not was'.e to remove
 
 Sect. I.] Of Waste; wherein of Fixtures. 225 
 
 such things within the term by seme, and this shall be against the opi- 
 nions aforesaid." But the rule in this extent in favour of tenants is 
 doubted afterwards in 21 II. 7. 27. and narrowed there, by allowing 
 that the lessee for years could only remove, within the term, things 
 fixed to the ground, and not to the walls of the principal building. 
 However in process of time the rule in favour of the right in the tenant 
 to remove utensils set up in relation to trade became fully established : 
 and accordingly we find Lord Holt in Poole's case, Salk. 368. laying 
 down, (in the instance of a soap-boiler, an under-tenant whose vats, 
 coppers, &c. fixed had been taken in execution, and on which account 
 the first lessee had brought an action against the sheriff,) that " during 
 the term the soap-boiler might well remove the vats he set up in relation 
 to trade ;" and that he might do it by common law, and not by virtue 
 of any special custom, " in favour of trade, and to encourage industry," 
 but that after the term they became a gift in law to him in reversion, 
 and were not remcveable. He adds, that there was a difference be- 
 tween what the soap-boiler did to carry on « his trade" and what he did 
 to complete " his house" as " hearths and chimney-pieces," which were 
 held not removear'.'r The indulgence in favour of the tenant for years 
 during the term has been since carried further, and he has be'en allowed 
 to carry away matters of ornament, as ornamental marble chimney- 
 pieces, pier-glasses, hangings, wainscot fixed only by screws, and the 
 like. Beck v. Rcboiv, 1 P. Wms. 94. ex parte Quincey, 1 Atlt. 477. and 
 Laivton v. Lanvton, 3 Atk. 13. [see also ante.'] But no adjudged case 
 has yet gone the length of establishing that buildings subservient to 
 purposes of agriculture, as distinguished from those of trade, have 
 been removcable by an executor of tenant for life, nor by the tenant 
 himself who built them during his term. In deciding whether a par- 
 ticular fixed instrument, machine, or even building, should be consi- 
 dered as removeable by the executor, as between him and heir, the 
 Court in the three principal cases on this subject (yiz. 3 Atk. J 3. Am- 
 bler 1 13. and 1 H. Black. 259. in n. [and Atk. s. c.~] may be considered 
 as having been decided mainly on the ground, that where the fixed in- 
 strument, engine, or utensil, (and the budding covering the same falls 
 within the same principle,) was an accessary to a matter of a personal na- 
 ture, that it should be itself considered as personalty. The fire-engine 
 in 3 Atk. and Ambler, was an accessary to the carrying on the trade of 
 getting and vending coals; a matter of a personal nature. Lord Hard- 
 ivicke says, in the case in Ambler, " A colliery is not only an enjoyment 
 of the estate, but in part carrying on a trade." And in the case in 3 Atk. 
 he says, " One reason that weighs with me is its being a mixed case, 
 between enjoying the profits of the lands, and carrying on a specie 
 of trade ; und considering it in this light, it comes very near the in- 
 tanccs in brewhe'v -"• : i J .. of furnaces and coppers" Unon the same 
 
 CL
 
 q-ZG Of JVaste ; xc her e'ut of Fixtures. [Chap. IX. 
 
 principle, Lord ('. B. Corny ns may be considered as having decided the 
 case of the cyder-mill 5 i. e. as a mixed case between enjoying the profits 
 of the land and carrying on a species of trade ; and as considering the 
 cyder-mill as properly an accessary to the trade of making cyder (a . In 
 the case of the salt-pans, Lord Mansfield does not seen; tc have consi- 
 dered them as accessory to the carrying on a trade ; but as merely the 
 means of enjoying the benefit of the inheritance. He says, "The salt- 
 snrin - is : valuab' ; inheritance, but no profit arises from it unless there 
 be a sah-wcrk which consists of a building, C5~V. for the purpose of 
 containing the pans, l'e. which are fixed to the ground. The inheritance 
 cannot be enjoyed without them. They are accessaries necessary to the 
 enjoyment of the principal. The owner erected them for the benefit of 
 the inheritance." upon this principle he considered them as belonging 
 to the heir, as parcel of the inheritance for the enjoyment of which 
 they wcte made, and not as belonging to the executor, as the means or 
 instrument of carrying 0:1 a trade. If, however, he had even consi- 
 dered them as belonging to the executor, as utensils of trade, or as 
 being immoveable by the tenant, on the ground of their being such uten- 
 sils of trade, still it would not have affected the question now before the 
 Court, which is the right of a tenant for mere agricultural purposes to re- 
 move buildings fixed to the freehold, which were constructed by him for 
 the ordinary purposes of husbandry, and connected with no description 
 cf trade whatsoever : and to which description of buildings no case 
 (except the A7.fi Prius case of Dean and Allah [Esp. R ) before Lord 
 Ke/iyoriy and which did not undergo the subsequent review of himself 
 and the rest of the Court) has yet extended the indulgence allowed to 
 tenants in respect to buildings for the purposes of trade. In the case in 
 Bull. N. P- 34. of Culling v. Tujfnell, before Lord C. J. Treby at A7.fi 
 Prius, he is stated to have hoklen that the tenant who had erected a 
 barn upon the premises, and put it upon pattens and blocks of timber 
 lying upon the ground, but not fixed in or to the ground, might by the 
 custom of the country take them away at the end of his term. To be 
 sure he might, and that without any custom ; for the terms of the 
 statement exclude them from being considered as fixtures ; "they were 
 not fixed in or to the ground." In the case of Fitzherbert v. Skaiu 
 I H. Bl. 258, we have only the opinion o\ a very learned Judge indeed, 
 Mr. J. Guild, of v hat would have been the right ol the tenant, as to 
 the taking away a shed built on brick-work, and some posts and rails 
 which he had erected, if the tenant had done so during the term : but 
 i lie term was put an end to by a new contract, the question, what 
 ;!• . tenant could have done in virtue of his right under the old term, if 
 1: had continued, could never have come judicially before him at A7Vi 
 
 IV, : Exit's R. .
 
 Sect. I.] Of J Fast e ; wherein of Fixtures. 007 
 
 Prius : and when that question was offered to be argued in the Court 
 above, the counsel were stopped, as the question was excluded by the 
 new agreement. As to the case of Pentan v. Robart, 2 East's R. 83. 
 it was the case of a varnish-house, with a brick foundation let into the 
 ground, of which the wood-work had been removed from another place, 
 where the defendant had carried on his trade with it. It was a building 
 for the purpose of trade ,• and the tenant was entitled to the same indulg- 
 ence in that case, which, in the cases already considered, had been al- 
 lowed to other buildings for the purposes of trade, as furnaces, vats, 
 coppers, engines, and the like. And though Lord Kenyan, after put- 
 ting the case upon the ground of leaning, which obtains in modern 
 times, in favour of the interests of trade ; upon which ground it might 
 be properly supported, gees further, and extends the indulgence of the 
 law to the erection of green-houses and hot-houses by nurserymen, and 
 indeed by implication to buildings by all other tenants of lands : there 
 certainly exists no decided case, and, I believe, no recognized opinion or 
 practice on either side of Westminster Hall, to warrant such an exten- 
 sion. The Nisi Prius case of Dean v. Allaly (reported in Mr. WoodfalFs 
 book, and Mr. Espinasse's, 2 vol. 11.) is a case of the erection and re- 
 moval by the tenant of two sheds called Dutch barns, which were, I 
 will assume, unquestionable fixtures. Lord Kenyan says, " The law will 
 make the most favourable construction for the tenant, where he has made 
 necessary and useful erections for the benefit of his trade and manufacture, and 
 which enable him to carry it on with more advantage. It has been so 
 Loldcn in the case of cyder-mills and other cases ; and I shall not. narrow 
 the law, but hold erections of this sort made for die benefit of trade, 01 
 constructed as the present." Lord K. here uniformly mentions the be- 
 nefit of trade, as if it were a building subservient to some purposes of 
 trade-, and never mentions agriculture, for the purposes of which it 
 was erected. He certainly seems, however, to have thought that 
 buildings erected by tenants for the purposes of farming, were, or rather 
 ought to be governed by the same rules which had been so long judicially 
 holden to apply to buildings for the purposes of trade. But the case of 
 buildings for trade has been always put and recognized as a known allow- 
 ed exception from the general rule, which obtains as to other buildings ; 
 and the circumstance of its being so treated and considered, establishes 
 the existence of the general rule to which it is considered as an excep- 
 tion. To hold otherwisej and to extend the rule in favour of tenants 
 in the latitude contended for by the defendants, would be, as appears 
 to me, to introduce a dangerous innovation into therehtive state of rights 
 and interests holden to subsist between landlords and tenants But its 
 danger or probable mischief is not so properly a consideration for a 
 court of law^ as whether the adoption of such a doctrine would be an 
 innovation at all ; and being of opinion that it would be so, and con-
 
 228 Of Waste; wherein of Fixtures. [Chap. IX, 
 
 trary to the uniform current of legal authorities on the subject, we fed 
 ourselves, in conformity to and in support of those authorities, obliged 
 to pronounce that the defendant had no right to take away the erections 
 stated and described in this case. 
 
 If a house be destroyed by tempest, lightning, or the like, which is 
 the act of Providence, it is no waste : and the stat. 6 Ann. c. 3 1 . enacts, 
 that no action shall be prosecuted against any person in whose house 
 any fire shall accidentally begin ; with a proviso that the Act shall not 
 defeat any agreement between landlord and tenant (a). It seems to be 
 somewhat doubtful whether tenant by the curtesy is within this statute. 
 80, of tenants in dower (£). 
 
 Waste may be done in houses, by pulling them down, or suffering 
 them to be uncovered, whereby the rafters or other timber of the house 
 are rotten : but the bare suffering them to be uncovered, without rotting 
 the timbei - , is not waste. So, if a house be uncovered when the tenant 
 comcth in, it is no waste in the tenant to suffer the same to fall down. 
 But though the house be ruinous at the tenant';, coming in, yet if he 
 pull it down it is waste, unless he re-edify it again : yet if a house built 
 de novo was never covered in, it is no waste to abate it. Also, if glass- 
 windows (though glazed by the tenant himself) be broken down or 
 carried away, it is waste ; for the glass is part of his house. If the 
 house be uncovered by tempest, the tenant must in convenient time re- 
 pair it : and though there be no timber growing upon the ground, yet 
 the tenant must at his peril keep the house from wasting (t). 
 
 The law favours the support and maintenance of houses for the habi- 
 tation of mankind : therefore if two or more joint-tenants or tenants in 
 common be of a house of habitation, and the one will not repair the 
 house, the other shall have by the law a writ of de reparatione facienda, 
 and the writ saith ad sustentationem ejusdem domus tencantur. So it is, if 
 the lessor, by his covenant, undertake to repair the houses, yet the les- 
 see (if the lessor doth it not) may with the timber growing upon the 
 ground repair it, though he be not compellable thereunto (d,. 
 
 But if the tenant do or suffer waste to be done in houses, yet if he 
 repair them before any action brought, there lieth no action of waste 
 against him ; but he cannot plead quod non fecit vastutn t but the special 
 matter (e). For the tenant may cut trees to mend houses, is'c. and to 
 do reparation : but if houses decay by the default of the tenant, to cut 
 trees to amend them is waste (_/"). Not so, however, if they were 
 ruinous at the time of the lease made: but if a frame was once covered 
 in in the time of the lessor, and the lessee erase it after his death, the 
 heir shall have waste (g). 
 
 (a) a El. Com. 281. (i) x Inst. 57. a. n. 1 Cruise VI. c. .?. 5.39. 
 
 (c) Co. Lit. 53, 4, nnd notes. (</) Co. Lit. 53. (-} Ibid.cj, 4, and notes. 
 
 ■J] T. N. B. y,. K. ft Ibid. io. QJiyn, 36.
 
 Sect. I.] Oj IV ante* <2C9 
 
 The tenant cuts down trees for reparations, and sells them, and'after- 
 wards buys them again and employs them about necessary reparations ; 
 yet it is waste by the vendition: he cannot sell trees and with the money 
 cover the house («). 
 
 If the tenant of a dove-house, warren, park, vivary [a fishpond], 
 estangues, or the like, do take so many that such sufficient store be nor 
 left as he found when he came in, this is waste ; and to suffer the paling 
 to decay, whereby the deer is dispersed, is waste (I>). 
 
 If tenant cut down or destroy any fruit-trees, growing in the 
 garden or orchard, it is waste •, but if such trees grow upon any of the 
 ground which the tenant holdeth out of the garden or orchard, it is no 
 waste (r). 
 
 To suffer the germins [a germina, the young roots of trees] upon 
 the roots of the trees to be again newly destroyed, (having before felled 
 the trees) it is new waste : and treble damages shall be recovered for 
 both {d.) 
 
 Waste may also be committed in respect of timber trees, {viz. oak, 
 ash, and elm, and these be timber trees in all places) either by cutting 
 them down or topping them, or doing any act whereby the timber may 
 decay ; for timber is part of the inheritance. Also, in countries where 
 timber is scant, and beech or the like are converted to building for 
 the habitation of man, or the like, they are all accounted timber. Cutting 
 down of willows, beech, birch, asp, maple, or the like, standing in 
 the defence and safeguard of the house, is destruction : so, if there be 
 a quickset fence of whitethorn, if the tenant stub it up, or suffer it to 
 be destroyed, this is destruction ; and for all these and the like destruc- 
 tions, an action of waste lieth. But cutting up of quicksets is not 
 waste, if it preserves the spring ; nor is cutting of ash under the growth 
 of twenty years waste (e). 
 
 With respect to what wood shall be deemed timber (by which is 
 meant such trees only as are fit to be used in building and repairing 
 houses) it is the custom of the country which makes some trees timber, 
 which in their nature, generally speaking, are not so, as horse-chesnut 
 and lime-trees : so of birch, beech, and asp ; and as to pollards, not- 
 withstanding what is said in Ploivd. 470. that these are not timber, and 
 that tithes are to be paid of their loppings, (which could not be if 
 pollards were timber,) yet if the bodies of them be sound and good, I 
 incline to think them timber ; secus if not sound, they being in such 
 case fit for nothing but fuel. Per Lord Chancellor King • So walnut- 
 trees, where of considerable value, are to be estimated as timber [f). 
 
 As to pollards, where an action was brought to recover the value of 
 certain pollard trees, on an estate purchased by the defendant of the 
 
 (a) Co. Lit. ut ante. (6) Ibid. 53. («) Ibid. (J) F. N. B. 59. M. f. 
 
 U) Cc, Lit. ut ant:, and vide fast. 2 P. Wms. 601. (/) % P. Wms. 6ci 3
 
 250 Of Waste, [Chap. IX. 
 
 plaintiff, in the particular of which it was expressed, that all timber 
 and timber-like trees should be taken at a fair valuation ; the defendant 
 resisted payment for the pollards, not deeming them to come under 
 the general description of timber-like trees: but after a long hear- 
 ing, a verdict was given for the plaintiff, for the value of the said 
 pollards (a). — Where trees are of value, and the parties cannot agree 
 in the valuation of them as timber, the Court of Chancery will send 
 it to be tried, whether by the custom of the country, any and which 
 of them are timber (t>). It was determined in the county of Fork, 
 that birch-trees were timber, because they were used in that county 
 for building sheep-houses, cottages, and such mean buildings and all 
 the Justices on a conference were of opinion, that in that county they 
 were Timber and belonged to the inheritance, and therefore could not 
 be taken by the tenant for life (c). 
 
 Windfalls are the property of the lord ; for the timber while stand- 
 ing is part of the inheritance : but whenever it is severed, either by 
 the act of God, as by a tempest, or by a trespasser and by wrong, it 
 belongs to him who has the first vested estate of inheritance, whether 
 in fee or in tail, who may bring trover for it {d). So, where there 
 are intermediate contingent estates of inheritance, and the timber is cut 
 down by combination between the tenant for life and the person who 
 has the next vested estate of inheritance; or if the tenant for life him- 
 self has such estate and fells timber ; in these cases, the Court of 
 Chancery will order it to be preserved for him who has the first con- 
 tingent estate of inheritance under the settlement (e). A tenant for 
 life without impeachment of waste has as full power to cut down trees 
 and open new mines, for his own use, as if he had an estate of in- 
 heritance ; and is in the same manner entitled to the timber, if severed 
 by others. This privilege, given by words, without impeachment of 
 waste, is annexed to the privity of estate, so that if the person to 
 whom that privilege is given change his estate, he loses the privilege. 
 It has been held that the intent of this clause is only to enable the 
 tenant to cut down timber and open new mines, and that it does not 
 extend to allow destructive or malicious wast." ; such as cutting down 
 timber which serves for shelter or ornament of the estate (f ). 
 
 If the tenant suffer the houses to be wasted and then fell down 
 timber to repair the same, this is a double waste (g). 
 
 Digging for gravel, lime, clay, brick, earth, stone, or the like, or 
 for mines of metal, coal, or the like, hidden in the earth, and not 
 open when the tenant came in, is waste (Z>) ; but the tenant may dig 
 for gravel or clay for the reparation of the house, (though no pit 
 
 (,;) RaLbet v. Raikes, Suffolk Rummer Assizes, 1803, cor. Macdonald, C. B. 
 
 (*) 2 P. Wms. 6c6. (<•) Moore, S13. (J) 3 P. Wins. 268. (e) 1 T. R. 54, 
 
 (/) Co. Lit, 220. n. I. 3 Wood. 39;% (g) Co. Lit. 53. (/>) Ibid.
 
 Sect L] Of Waste. o%\ 
 
 were open at the time of the lease,) as well as he may take convenient 
 timber trees (a). But if the pits or mines v ere open before, it is no 
 waste in the tenant continuing to dig them for his own use : for it is 
 now become the mere annual profit of the land. Though mines be 
 open at the time, one cannot take timber to use in them (b). 
 
 It is waste to sufvr a wall of the sea to be in decay, so as by the 
 flowing and reflowing of the sea the meadow or marsh is surrounded, 
 whereby the same becomes unprofitable •> but if it be surrounded 
 suddenly by the rage or violence of the sea, as by tempest, without 
 any default of the tenant, it is no waste punishable. So it is, if the 
 tenant repair not the banks or walls against rwers, or other waters, 
 whereby the meadows or marshes be surrounded, and become rushy 
 and unprofitable : c\ 
 
 It is a general principle, that the law will not allow that to be 
 waste, winch is not in any way prejudicial to the inheritance; never- 
 theless it has been held, that a tenant or lessee cannot change the 
 nature of the thing demised.— Therefore if the tenant convert arable 
 land into wood, or e converso, or meadow into arabie, it is waste ; for 
 it changes not only the course of husbandry, but the proof of his evi- 
 dence The same rule is to be observed with regard to converting one 
 species of edifice into another, even though it be thereby improved in 
 its value (ci). Thus if a lessee convert a corn-mill into a fulling-mill, 
 it is waste, though the conversion be to the lessor's advantage. So, 
 the conversion of a brewhouse of 120/. per annum into other houses 
 let for 200/. per annum is waste; because of the alteration of the 
 nature of the thing, and of the evidence (<?)- So, ii the tenant pull 
 down a malt-mill and build a corn-mill it is waste. — Waste in the 
 house is waste in the curtilage, and waste in the hall is waste in the 
 whole house f). 
 
 An injunction was granted against proceeding with alterations in a 
 house under an agreement for a lease, upon circumstances that would 
 probably prevent a specific performance, viz. surprise, the effect 
 of fraudulent misrepresentation and concealment, and the particu- 
 lar nature of the alteration, for the conversion of a private house 
 to the purpose of a coachmaker's business, wholly changing the nature 
 of the subject (g). 
 
 A tenant was restrained from cutting turf for sale, his lease giving 
 a right of estovers only, notwithstanding an uninterrupted practice of 
 eighty years (J?). 
 
 A tenant from year to year having received notice to quit, a motion 
 was made for an injunction to restrain him from taking away the crops 
 
 (.?) 1 Wood's Inst, b, 2. c. 5. s. 4- Bl. Con.. =Sz. (J) Co. Lit. 53. (-) Ibid. 
 
 (/) Cro. Jac \%%. (0 1 Lev. 3C9. (/) 1 AL : . 95. (j) 14 Ves. ji6. 
 
 (/•) 1 Sch. 0; Lcf. Rrp. ?■
 
 2:32 Of Common of Estovers ; [Chap. IX 
 
 &c. contrary to the usual course of husbandry, and from cutting and 
 damaging the hedge-rows, &c The Court observed that though there 
 was no case of this sort upon a tenancy from year to vear, yet the prin- 
 ciple applies equally to such a tenancy as to a lease for a longer term. 
 The Judges have uniformly said in modern times that a tenant from 
 year to year must treat the farm in a husband-like manner, according 
 to the custom of the country, and the Court must give its aid equally 
 in that case, with the qualification that he is not to remove any thing 
 except according to the custom of the country («). 
 
 [See also with respect to timber the following Section.] 
 
 Slcticn II. Of Common of Estovers ; wherein of Wood. 
 
 Common cf stovers, or estcuviers, that is necessaries, or materials, 
 (from esiojfcr to furnish,) is a liberty of taking necessary wood for 
 the use and furniture of a house cr farm from off another's estate. 
 Estovers are three kinds in law, and are incident to the estate of 
 every tenant, whether for life or years ; but not at will, for such estate 
 is too mean b). 
 
 The Saxon ward bote (c), which signifies allowance or compensa- 
 tion, is used by us as synonymous to the French estovers, and therefore 
 house-bote is a sufficient allowance of wood to build or repair me 
 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 husbandry, as ploughs, carts, harrows, 
 rakes, forks, tzfe. (il) ; and hay-bote or hedge-bote is wood for re- 
 pairing hedges or fences, as pales, stiles, and gates, to secure inci- 
 sures. These botes cr estovers must be reasonable ones, and such any 
 tenant or lessee may take off the land let or demised to him, without 
 ■waiting for any leave, assignment, or appointment of the lessor, unless 
 he be restrained by special covenant to the contrary, (which is usually 
 the case) (e) ; for house-bote, hay-bote, and fire-bote, do appertain 
 unto a termor of common right, and he may take wood for the same : 
 but if the tenant take more house-bote than needful, he may be 
 punished for waste (f). 
 
 Common of estovers cannot be appendant to land, unless it be by 
 prescription : but to a house to be spent there. Therefore, though it 
 be said, that a custom that if the house fall, the materials shall be the 
 tenant's, would not be good ; yet when a house, having estovers ap- 
 pendant or appurtenant is blown down by wind, if the owner rebuild 
 it in the same place and manner as before, his estovers shall continue. 
 
 (a) 16 Vc-s. Jun. 173, (i) Co. Lit. 112. a. 2. Bl. Com. 25- M Ibid. 
 
 \d) Weed's Inst. 344. \t) F. N. B. 59. M. (/) Terms de Ley,
 
 Sect. II.] wherein of Wood. 23;) 
 
 So, if he alter the rooms and chambers, without making new 
 chimnies ; but if he erect any new chimnies he will not be allowed to 
 spend any estovers in such new chimnies (a). But a prescription to 
 have estovers not only for repairing but building new houses on the 
 land is good ; yet it seems, if a man have common of estovers by grant, 
 he cannot build new houses to have common of estovers for those 
 houses f b). 
 
 It may not here be superfluous to explain the meaning of the 
 terms appendant and appurtenant (c). — A thing appendant is that which 
 beyond memory has belonged to another thing more worthy, which it 
 agrees with in its nature and quality. Therefore a common of turbary 
 may be appendant to a house (d); for a thing incorporeal may be ap- 
 pendant or appurtenant to a thing corporeal ; but a thing corporeal 
 cannot be appendant to a thing corporeal, as land cannot be appendant 
 to land: and common appendant must be by prescription, for it cannot 
 begin at this day (e). A thing appurtenant is that which commences at 
 this day •, as if a man at this day grant to one common of estovers, or 
 of turbary, in fee-simple, to burn in his manor; and if he make a 
 feoffment of the manor the common shall pass to the feoffee (/"). 
 Common appurtenant therefore is claimable by an existing grant ; as 
 well as by prescription : which always implies a grant ; and a right of 
 common by prescription may be regulated by custom (g). 
 
 The lord may have the land of his tenant common appendant to his 
 own demesnes: and occupiers of land may, by custom, claim a right 
 in alieno solo (h) ; though inhabitants camiot, for inhabitancy is too 
 \ague a description, and extends to many others, besides the actual 
 occupiers of houses or land (z). 
 
 If a man have common of estovers in the woods of another, and he 
 who is tenant and owner of the wood cut down all the wood, he who 
 ought to have the estovers shall not have an action of waste but shall 
 have assise of his estovers (£). Trespass also would lie and be a better 
 remedy (/). 
 
 If the tenant who hath .common of estovers shall use them to any 
 other purpose than he ought, he that owns the wood may bring trespass 
 against him; as where one grant twenty loads of wood to be taken 
 yearly in such a wood, ten loads to burn, and ten to repair pales; here 
 he may cut and take the wood for the pales, though they need no 
 ^unending, but then he must keep it for that use (;;/). 
 
 So, where two elms were cut down for the purpose of repairs, one 
 
 (a) Co. Lit. 121. h. F. N. B. 1S0. C. b. 12 Mod. 95. 4 Rep. S7. 4 Leon, $%$. 
 (6) Cro. Jac. 25. F. N. B. 180. II. (c) Co. Lit. 121. b. (V) 1 Rol. 230.]. 36. 
 
 Ibid. 1. 50. Ibid. 396. !. 42. (/) Co. Lit. 121. b. 1 Vent. 407. F. N. B. 181. N. 
 
 (/) Cro. Car. 482. («•) a Ld. Ravin. n36. (b) F. N. B. 1S0. D. (,') 2 Bl. R. ? ;8. 
 {k) F. N. B. 59. A. Ibid. 178. F, d. (/) 12 Mod. 379- (*0 9 Re P- "3-
 
 £34 Of Common of Estovers ; [Chap. IX. 
 
 of which only was used, it was said that although that tree which was 
 not employed [and which had been felled five years] was more than 
 sufficient to repair the house ; yet seeing that the tenant cut it down 
 for that purpose, and peradventure did not know what would serve for 
 that purpose, it was not any forfeiture-, for it had been judged, that 
 where one cut down wood to make hedges, and used the greater part 
 thereof in hedging, yet for the rest that was cut down for that pur- 
 pose, no tithes shall be paid (#). 
 
 Though the tenant may cut down and take sufficient wood to repair 
 walls, pales, fences, hedges, C5V, as he found them, yet he may not do 
 so to make new ones (Z>). 
 
 The tenant may cut down dead wood; and it is not waste to fell 
 seasonable wood which is used to be felled every twenty years, or 
 within that time (c) ; but oaks cannot be said to be seasonable wood, 
 which are passed the age of twenty years; but by a custom in any 
 place where is plenty of wood (timber), oaks under twenty years may 
 be seasonable wood ; and such custom may be ailedged in the wood 
 itself (d). 
 
 A termor may cut the underwood growing under the great woods 
 and tall woods e): but if there be not any tall wood, then he cannot 
 cut the underwood (/)', for where waste was brought for topping and 
 lopping twenty ashes and twenty elms, on demurrer it was adjudged 
 for the plaintiff (g). It has however, notwithstanding, been held to be 
 a good custom, that copyholders in fee shall have the loppings of 
 pollengers, and the lord cannot, in such case, cut the trees down, for 
 that would deprive the copyholder of the future loppings. [Pollengers 
 or pollards are such trees as have been usually cropped, therefore dis- 
 tinguished from timber-trees (/->)■] And it has been resolved that by 
 the common law, a copyholder may cut off the under boughs, for such 
 lopping cannot cause any waste (i). 
 
 Though the termor hath of common right oaks, elm, ash, CSV. for 
 repair of the house, and underwood, izc for inclosures and firing, yet 
 it is said he cannot cut either oaks or ash for fire-wood; but the cutting 
 at the age of seven years is not waste (k). 
 
 If a man cut wood to burn, where he hath sufficient dead wood, it 
 is waste (/ . 
 
 A rector may cut down timber for the repairs of the parsonage- 
 house, or of the chancel, but not for any common purpose; and if it 
 is the custom of the country, he may cut down underwood for any 
 purpose, but if he grubs it up it is waste. He may cut down timber 
 
 (a) Cro. Eliz. 499. ('>; 1 Ii-st. 53. Wov-r, In;t. 525. (c) F. N. B. .59, IvT. 
 
 (V) Ibid. d. (/) F. N. E. 60. E. (/) ibid. '.:. 
 
 \g) Cro. Car. 679. (h) Plovd. 469. U: Cro. Eliz. 361. 
 
 U) F.N. B. 59. N. i. (/) Ibid. IT.
 
 Sect. II.] wherein of Wood. 235 
 
 likewise for repairing any old pews that belong to the rectory; and he 
 is also entitled to botes for repairing barns and outhouses belonging 
 to the parsonage (a). And a parson or prebendary shall have a writ of 
 waste upon their lease (Z>). 
 
 It is true, that the first owner of the inheritance in esse shall have 
 timber blown down, but as an estate in contingency is no estate, and 
 the trees must become the property of somebody, therefore the first 
 remainder-man of the inheritance in being takes them (c). 
 
 So s with respect to the case of a copyholder, who has only a pos- 
 sessory property in the timber trees, of which if severed from the 
 freehold by tempest or otherwise, the property will be in the lord ; 
 and a custom for the tenant to claim such trees would be a hard one, 
 and so likewise of the materials of the house (d). In either case, 
 being things annexed to the inheritance, the severance shall not trans- 
 fer the property ; this therefore is to be understood as of a copyholder 
 not of inheritance (e). 
 
 For, as to a right to cut down timber by custom, where a copy- 
 holder hath the inheritance, and where his successor comes in by his 
 nomination, there such a custom may be good (f) : but a custom for 
 a copyholder for life to cut down and fell trees was held not to be good, 
 unless it be to build new houses on the land (g). 
 
 A custom that every copyhold tenant may cut down trees at their will 
 and pleasure, is Unreasonable and void, for then a tenant at wdl might 
 do it ; so it is for a copyholder for life to do it-, and one of the reasons 
 given is, that the succeeding copyholder would not have wherewithall 
 to maintain the house and plough, which plainly intimates, that a co- 
 pyholder may cut timber to make reparations, and the rather, because 
 permissive waste is a forfeiture in him (h). 
 
 The lord may cut down timber trees, leaving sufficient, and the 
 custom to cut makes no alteration ; for it has been resolved, that every 
 copyholder may take trees for house-bote of common right; so that 
 the laying the custom seems to be only by way of caution (i). 
 
 The right of the lord to take trees on a copyhold, perhaps, is ren- 
 dered somewhat doubtful by the reversal on error brought in parliament 
 of the judgment in the case of Ashmead against Ranger (k). 
 
 It is clear that a copyholder may take the necessary estovers or botes 
 on his copyhold without a special custom (/). 
 
 But to enable him to make them on other lands, a special custom must 
 be shewn (/«). 
 
 (a) z Atk. 217. (b) F. N. B. 60. K. 0) 3 Atk. 755. (d) 11 Mod. 68. 
 
 0) Ibid. 95. (J) Cro. Car. 221. (g) Cr0.Jac.z5. (/->) Gilbert's 
 
 Tenures, 237. Cro. Jr. c. 29. (i) Gilbert's Tenures, 239. (i) 11 Mod. i3. 
 
 12 Mod. 378. Salk. 638. Holt, 162. Com. Rep. 71. 1 Ld. Raym. 551. (/) Ld. Raym. 
 ante. & 11 Mod. 68. [pi) 4 Co- 31. b.
 
 236' Of Common of Estovers. [Chap. IX. 
 
 As a tenant for life has a right to what may be sufficient for repairs 
 and botes, care must be taken in felling timber to leave enough upon 
 the estate for that purpose 5 and whatever damage is done to the tenant 
 for life on the premises by him held for life, the same ought to be made 
 good to him (a). 
 
 Estovers may be granted in fee, and in a grant of estovers the grantor 
 may take the trees with the grantee. But underwood is a thing of in- 
 heritance and perpetuity, and may be granted in fee by cepv of court- 
 roll, and will support trespass quarc clausum /regit ; for in such case, the 
 grantor cannot meddle with the woods, nor can his lessee ; for he hath 
 entirely granted the underwood, and not estovers or so many loads of 
 wood. - A grant may be made to a person by a deed to which he is no 
 party (b). 
 
 If the lord of a manor cut down so many trees as not to leave suffi- 
 cient estovers, his copyholder may bring trespass against him, and re- 
 cover the value of the trees in damages : and even if the lord leave suf- 
 hcient estovers, yet he shall recover special damages, viz. for the loss 
 of his umbrage, breaking his close, treading down his grass, &c. for 
 the tenant had the same customary or possessory interest in the trees 
 that he has in the land ; and if the lord has a mind to cut trees, his bu- 
 siness is to compound with the tenant (c), [But see Ashmeadv. Rangcr t 
 ante.'] 
 
 The lord of a manor, as such, has no right without a custom to 
 enter upon the copyholds within his manor, under which there are 
 mines and veins of coal, in order to bore for and work the same, and 
 the copyholder may maintain trespass against him in so doing (d). 
 
 But an enclosure of the common by the lord may be no interruption 
 of the tenants' enjoyment of their common of estovers ; nay, probably 
 it may be better for such enclosure. If indeed, by such enclosure, their 
 common of estovers were affected, or they were interrupted in the enjoy- 
 ment of it, they might certainly bring their action; 'and the lord, in such 
 case, ccuid not justify such enclosure in prejudice to those rights (.?). 
 
 If the lord of a manor plant trees on a common, the commoner has 
 no right to abate them, though there be not a sufficiency left ; his re- 
 medy is by action. But if the lord so plant as to destroy the common, 
 such an act would be considered as a nuisance, and the commoner 
 might abate it ( f ). 
 
 The distinction seems to be this : if the lord of the manor make a 
 hedge round the common, or do any other act that entirely excludes 
 the commoner from exercising his right, the latter may do whatever is 
 necessary to let himself into the common : but if the commoner can 
 
 ,) 3 P. Wms. 26S. (J) Cro. F.liz. 413. («) 12 Mod. 379. Bull. N. P. 8j. y. c 
 
 •'; ic East, 183. ' (,) 6 T. R. 4:8. (/) Z Eos. & Pal. R. 13.
 
 Sect. TIL] Of Emblements. Q37 
 
 get at the common, and enjoy it to a certain extent, and his right be 
 merely abridged by the act of the lord, in that case his remedy is by an 
 action on the case, or by an assise, and he cannot assert his right by 
 any act of his own (a). 
 
 Section* III. Of Emblements. 
 
 The word emblements is derived from the French emblavence de bled } 
 corn sprung or put above ground, and strictly signifies the profits of 
 sown land ; but the doctrine of emblements extends not only to corn 
 sown, but to roots planted or other annual artificial profits (b). — Hops 
 growing out of ant.ient roots have been held to be like emblements, 
 which shall go to the husband or executor of the tenant for life, and 
 not to him in remainder; and are not to be compared to apples or fruits> 
 which grow of themselves (r). 
 
 But it is otherwise of fruit-trees, grass, and the like, which are not. 
 planted annually at the expence and labour of the tenant, but are either 
 a permanent or a natural profit of the earth : for when a man plants a 
 tree, he cannot be presumed to plant it in contemplation of any present 
 profit ; but merely with a prospect of its being useful to himself in fu- 
 ture, and to future successions of tenants (d). 
 
 It shall be intended prima facie, that the property of the corn is in the 
 owner of the soil. But, the public being interested in the produce of 
 corn and grain, (among other reasons for the rule) emblements go to 
 the executor, and not to the remainder-man (e). 
 
 In some cases, indeed, he who sows the corn shall have the emble- 
 ments, in others not. 
 
 If tenant in fee, or in tail, or in dower, die after sowing the corn, 
 and before severance, his executor, or administrator generally shall have 
 the emblements (f). 
 
 Tenant for life, or his representatives, shall not be prejudiced by any 
 sudden determination of his estate; because such a determination is 
 contingent and uncertain. — Therefore, if a tenant for his own life sows 
 the land, and dies before harvest, his executors shall have the emble- 
 ments or profits of the crop ; for the estate was determined by the act 
 of God, and it is a maxim in the law, that actus Dei nemitii facit inju- 
 riam. The representatives therefore of the tenant for life shall have 
 the emblements, to compensate for the labour and expence of tilling, 
 manuring, and sowing the lands ; and also for the encouragement of 
 
 0) Willes. 157. 6 T. R. 485. (J>) 1 Bl. Com. 12 j, U) Cro. Car. 515. 
 
 {d) aBl. Com. 113. (c) 2 Saund. 401. rP.Wtns.94. (/) Com. dig. tit Biens (G.
 
 ^38 Of Emblements. [Chap, IX. 
 
 husbandry, which being a public benefit, tending to the increase and 
 plenty of provisions, ought to have the utmost security and privilege 
 that the law can give it (a). 
 
 Therefore if a man sows land and lets it for life, and the lessee for 
 life die before the corn be severed, his executor shall not have the em- 
 blements, but he in reversion ; but if he himself had sowed the land 
 and died, it were otherwise (£). 
 
 So, if tenant for life sows the land, and grants over his estate, the 
 grantee dies before the corn severed, such grantee's executor shall not 
 have the corn (/). 
 
 So, if the lessee of a tenant for life be disseised, and the lessee of 
 the disseisor sows the land, and then the tenant for life dies, and he in 
 remainder enters, yet he shall not have the emblements, but the lessee 
 of the tenant for life (d). 
 
 So it is also, if a man be tenant for the life of another and cestui que 
 vie, or he on whose life the land is held, dies after the corn sown, the 
 tenant pur outer vie shall have the emblements (<?). 
 
 The same is also the rule, if a life estate be determined by the act of 
 law (/). 
 
 Therefore if a lease be made to husband and wife during coverture 
 (which gives them a determinable estate for life) and the husband sows 
 the land, and afterwards they are divorced a vinculo matrimonii, the hus- 
 band shall have the emblements in this case; for the sentence of divorce 
 is the act of law. 
 
 So if tenant in tail give or grant his emblements of corn growing on 
 the ground; the donee may cut and take them after thexlcath of the 
 tenant in tail (g). 
 
 So every one who has an uncertain estate or interest, if before se- 
 verance of the corn, his estate determine either by the act of God or oi 
 the law, he shall have the emblements, or they shall go to his executor 
 or administrator (/.>) ; for, so it is in all cases regularly, where a man 
 sows land wherein he hath such an estate as may perhaps continue until 
 the corn be ripe (?"). 
 
 But if tire estate be determined by the tenant's own act, as by for- 
 feiture by tenant for life tor waste committed; or if a tenant during 
 widowhood marries \ in these and similar cases the tenants having thus 
 determined the estates by their own acts, shall not be entitled to take 
 the emblements (k). 
 
 The under-tenants or lessees of tenants for life, have the same, nay 
 greater, indulg-. ncics, than their lessors, the original tenants for lire 
 The same ; for the law of estovers and emblements, with regard to 
 
 (a) i El. Com. i zi. {b) C.-o. Eliz. [464.] (.-) Ibid. (</) Ibid. [463.] 
 
 (c)Ibid. 123. C/)Ibid. (V) Shop. Touch. 244. (i) Ibid 
 
 (;') Shep.TcucL 471. (-') a 131. Com. 12,5.
 
 Sect. III.] Of Emblements. <239 
 
 the tenant for life, is also law with regard to his under-tenant, who re- 
 presents him and stands in his place: Greater; for in those cases where 
 tenant for life shall not have the emblements because the estate deter- 
 mines by his own act, the exception shall not reach his lessee who is a 
 third person (a) : thus, in the case of a woman who holds durante vi- 
 duitate ; her taking husband is her own act, and therefore deprives her 
 of the emblements, which, if she be a feme copyholder, the lord shall 
 have ; but if she leases her estate to an under-tenant who sows the 
 land, and she then marries, this her act shall not deprive the tenant of 
 his emblements, who is a stranger and could not prevent her (£). 
 
 With regard to emblements or the profits of lands sowed by tenant 
 for years, there is this difference between him and tenant for life : that 
 where the term of tenant for years depends upon a certainty, (as if he 
 holds from Midsummer for ten years,) and in the last year he sows a 
 crop of corn, and it is not ripe, and cut before Midsummer, the end of 
 {he term, his landlord shall have it (r) ; for the tenant knew the expi- 
 ration of his term, and therefore it was his own folly to sow that of 
 which he never could reap the profits. In such case the landlord, it is 
 said, must enter on the lands to take the emblements (d). 
 
 But where the lease for years depends upon an uncertainty ; as upon 
 the death of the lessor, being himself only tenant for life, or being a 
 husband seised in right of his wife ; or if the term of years be deter- 
 minable upon a life or lives ; in all cases of this kind, the estate for 
 years not being certainly to expire at a time foreknown, but merely by 
 the act of God, the tenant, or his executors, shall have the emble- 
 ments in the same manner that a tenant for life would be entitled 
 thereto (e). 
 
 Not so, however, if it determine by the act of (he party himself: as 
 if tenant for years surrenders before severance, or does any thing that 
 amounts to a forfeiture ; in which case the emblements shall go to the 
 lessor, and not to the lessee, who hath determined his estate by his own 
 default (/). 
 
 If, however, lessor covenants that lessee for years shall have the em- 
 blements which are growing at the end of the term, there the property 
 of the corn is well transferred to the lessee, though it be not severed 
 during the term (g). 
 
 If tenant at will sows his land, and the landlord before the corn is 
 ripe, or before it is reaped, put him out, yet the tenant shall have the 
 emblements, and free ingress, egress, and regress, to cut and carry 
 away the profits : and this for the same reason upon which all the cases 
 of emblements turn j namely, the point of uncertainty ; since the te- 
 
 (a) a Bl. Com. 123. (/$) Cr^. Eliz. 460. (c) 2 Bl. Com. 145. 
 
 ;0 1 Bac.Abr. jir. («) 2 BL Com, 145, (/) Ibid. (o-) Co. Lit. 55. a. n. 5
 
 'MO Of Emblements. [Chap. IX. 
 
 nant could not possibly know when his landlord would determine his 
 will, and therefore could make no provision against it ; and having 
 sown the land, which is for the good of the public, upon a reasonable 
 presumption, the law will not suffer him to be a loser by it (a). 
 
 So, if the estate of a tenant at will be determined either bv his death 
 or by the act of the landlord, he or his executors may reap the corn 
 sown by him. — "Wherefore the corn sown by a tenant at will (who dies 
 before harvest) and purchased by another person, cannot be distrained 
 bv the landlord for rent due to him from a subsequent tenant (Z<). 
 
 But it is otherwise, and upon reason equally good, where the tenant 
 himself determines his will ; for in this case the landlord shall have the 
 profits of the land V). 
 
 So in the case of entry of the lessor before sowing, the lessee at will 
 shall not have the costs of ploughing and manuring (d). 
 
 A. lets lands to B. for ninety-nine year& determinable on his life, with 
 a proviso of re-entry if let to tillage without licence ; C. under-tenant 
 ploughs and sows in the lite-time of B. who dies, no re-entry being 
 made ; the proviso was gone, for it could only operate during the con- 
 tinuance oi the lease ; and A. having never been in possession by ripht 
 of re-entry for the condition broke]), can have no advantage thereof; 
 and he who ploughed and sowed the land, has, in law and justice, a 
 right to reap and take the emblements (e). 
 
 If a husband holds lands for life, in right of his wife, and sows the 
 land, and afterwards she dies before severance, he shall have the em- 
 blements (f). 
 
 So where the wife has an estate for years, life, or in fee, and the hus- 
 band sows the land and dies, his executors shall have the corn (g). 
 
 But if the husband and wife are joint-tenants, though the husband 
 sow the land with corn and die before it be ripe, the wife, and not his 
 executors, shall have the corn, she being the surviving joint-tenant (h). 
 
 If a widow is endowed with lands sown, she shall have the emble- 
 ments, and not the heir: and a tenant in dower mav dispose of corn 
 sown on the ground ; or it may go to her executors, if she die before 
 severance (;'). Indeed it is provided by the stat. of Afertcn, 2 H. 3. 
 <:. 2. that a doweress may dispose by will of the growing corn, other- 
 wise it goes to her executor (£). 
 
 But where lands are limited to a woman during life for her ioint- 
 v.re, she has the same rights with respect to estovers and emblements, 
 and is under the same rest:ic:io:is respecting waste, (unless there is a 
 deficiency in her jointure,) as other tenants for life. A jointress is 
 not, however, entitled to the crop bown at the time oi her husband's 
 
 , V jl'.es, i;6. ■ I1::J. 
 
 r.p. /)i Neis.Abr.7c1. , :: (!. "-;. 
 ■ : ;:,:. to. Si. {K 1 • .t. /<. b. :.. ., 
 
 (a) Co. Li' 
 
 :.;.-. a. 1 131. Czt, 146. 
 
 ;/ ; I'O. I il 
 
 :-55-«.».4- (■•;j\ 
 
 ',''('.. T • 
 
 . r 5 .' :il Cro.iT:is.Cs
 
 Sect. III.] Of Emblements. 241 
 
 death; because a jointure is not a continuance of the estate of the 
 husband, like dower : on the death of a jointress, therefore, her repre- 
 sentatives are not entitled to emblements («). 
 
 If tenant by statute- merchant sows the land, and before severance a 
 sudden and casual profit happens, by which he is satisfied, yet he shall 
 have the emblements (<£). 
 
 Where lands sown are delivered in execution upon an extent, the 
 person to whom they are so delivered shall have the corn on the 
 ground (c). 
 
 So, where judgment was given against a person, and then he sowed 
 the land, and brought a writ of error to reverse the judgment, but 
 it was affirmed ; it was adjudged that the recoveror should have the 
 corn (d). 
 
 If a man enter by title paramount, he shall have the emblements; as 
 if a disseisor sow and the disseisee enter before severance (e). 
 
 The advantages also of emblements are particularly extended to the 
 parochial clergy by the stat. 28 H. 8. c. 11., which considers all persons 
 who are presented to any ecclesiastical benefice, or to any civil office, 
 as tenants for their own lives, unless the contrary be expressed in the 
 lorm of the donation. By this statute, if a parson sows his glebe and 
 diss, his executors' shall have the corn; and such parson may by will 
 dispose thereof. s.6.(f). 
 
 A. grants to B that he may sow A.'s land, whicli is done ac- 
 cordingly ; yet A. shall have the emblements, because B. hath not an 
 interest (g). 
 
 If the lessee for a tenant for life be disseised, and the lessee of the 
 disseisor sow the land, and then the tenant for life dies, and he in re- 
 mainder enters, yet he shall not have the emblements, bur the lessee of 
 the tenant for life j for quicquid plant atur s'Jo t solo credit (h). 
 
 Where there is a right to emblements, ingress, egress, and regress 
 are allowed by law, in order to enter, cut, and carry them away when 
 the estate is determined (2). 
 
 Emblements are distinct from the real estate in the land, and subject 
 to many, though not all, the incidents attending personal chattels : 
 they are deviseable, and at the death of the owner, shall vest in his 
 executor, and not his heir; they are forfeitable by outlawry in a per- 
 sonal action; and by the stat. 11 G. 2. c. 19. (though not by the com- 
 mon law) they may be distrained for rent arrear (k). 
 
 But though emblements are assets in the hands of the executor, are 
 forfeitable upon outlawry, and distrainable for rent, they are not in 
 
 '«) 9 Vin. Abr. 574. 1 £.;• Cas. Abr. zzi. Cruise's Dig. VII. c. i. s. 34, 35, 36. 
 
 J-) Co. Lit. 55. b. {:) 2 Leon. 54. (J) % Bulst. 313. (0 Co. Lit. 55. b, 
 
 (/) * Bl. Com. 1*3. (g) Co. Lit. 55- a - «• X. (>>) Cro. Eliz, (463.) 
 
 .:.' i I;;;t. <6- 't) 2 El. Com. 4^4- 
 
 R
 
 242 Of Emblements. [Chap. IX. 
 
 other respects considered as personal chattels, and particularly they arc 
 not the object of larceny before they are severed from the ground (a). 
 
 Of Gleaning. — It may perhaps be as well to introduce here a word 
 respecting gleaning or lesing. An idea very universally prevails among 
 the lower classes of the community that they have a right to glean, 
 that is, to take from off the land the corn that remains thereon after 
 the harvest has been gotten in; than which notion nothing can be 
 more erroneous. By custom, indeed, such a right may possibly in 
 some particular places exist ; and the laudable kindness of tenants 
 generally induces them to permit the poor to collect the corn they 
 have left upon the land, and to appropriate it to their own use. As a 
 right, however, it has no more existence than a right to take the tenant's 
 furniture from out of his messuage, and the pillage in the one case is 
 as much felony as the plunder would be in the other: for the act is not 
 simply a trespass, but a felonv; and the compiler well remembers a 
 conviction at the Old Bailey on an indictment found for the exercise of 
 this supposed right. The parties were tried before Mr. Justice Rocke, 
 (if he mistake not) about six years ago. Indeed, it has been deter- 
 mined, after two solemn arguments, that no such right exists at com- 
 mon law; whatever may possibly be the case on the ground of custom 
 in particular places (b). 
 
 For though it is no larceny, but a bare trespass, to steal corn or grass 
 growing, it is larceny to take them being severed from the freehold, 
 whether by the owner or by the thief himself, if he steals them at one 
 time and then come again at another time and take them (r). 
 
 (i) 2BI. Com. 404. (I) 1 H.B1.R. 53. 4 Bur. 1926. (e) iHaw. P. C. c 8 j. s. 21.
 
 [ 243 ] 
 
 CHAPTER X. 
 
 Of the general Incidents to Leases (continued). 
 
 Sect i ox I. Of implied Covenants and Agreements. 
 Section II. Of express Covenants and Agreements. 
 
 Section I. Of implied Covenants and Agreements. 
 
 COVENANT, contract, and agreement, are often used as synony- 
 mous words, signifying an engagement entered into, by which one 
 person Jays himself under an obligation to do something beneficial to, 
 or to abstain from an act which, if done, would be prejudicial to an- 
 other (a). 
 
 A covenant is either implied or expressed, it subsists either in law or 
 in fact. 
 
 An implied covenant, or a covenant in law, is that which the law 
 intends and implies, though it be not expressed by words in the deed. 
 
 For quiet enjoyment. — Thus, when one makes a lease for years by the 
 words "demise and grant," without any express covenant for quiet en- 
 joyment ; in this case, the law intends and makes such a covenant on 
 the part of the lessor, which is, that the lessee shall quietly hold and 
 enjoy the thing demised against all persons, at least, having title under 
 the lessor, and at least during the lessor's life, and (as some think, 
 I Inst. 384.) during the whole term (b) : and hereupon an action of co- 
 venant may be brought against him in the reversion ; so that if the heir 
 that is in by descent put out the termor of his father, the termor may 
 have this action against him. — If the party ousting the covenantee has 
 no title, the covenantee it is said cannot, where the covenant is cre- 
 ated by law, bring an action of covenant against the lessor (c). 
 
 But though such covenant in law is general against ail persons that 
 have title during the term, and extends to the heir after the death of 
 the lessor, as against himself only, and shall charge the executors or 
 administrators for any disturbance in the life of the covenantor, yet 
 
 {a) Bac. Abr.tit. " Covenant." (o) Shep. Touch, :6o. 
 
 (0 : Brownl. i6r. Cro. Elli. 214 
 
 R2
 
 H44- Of implied Covenants* [Chap. X, 
 
 (it is said) it shall not charge them for any disturbance afterwards. 
 [But see i Inst. 3B4.] He that sues, therefore, upon this covenant 
 must shew that he was molested or evicted by one that had an elder- 
 title (a). 
 
 An implied covenant for quiet enjoyment, comprehends a covenant 
 by implication that the lease shall be valid -and not void or voidable ; 
 for of such there could of course be no enjoyment at all : and this 
 principle is the same as that which respects any conveyance ; for where 
 a man undertakes to convey, he undertakes to convey by a good 
 title (3). 
 
 To cultivate the Land.— A covenant is implied also, on the part of the 
 lessee that he will use the land demised to him in a husbandman like 
 manner and not unnecessarily exhaust the soil by neglectful or improper 
 tillage : for the bare relation of landlord and tenant is a sufficient con- 
 sideration for the tenant's promise to manage a farm in a husband-like 
 manner (c) 
 
 It is likewise so notoriously the duty of the actual occupier to repair 
 the fences, and so little the duly of the landlord, that without an 
 agreement to that effect, the landlord may maintain an action against 
 his tenant for not so doing, upon the ground of the injury done to hir- 
 inheritance (d). 
 
 To keep Messuage, &c. in Repair. — So, in case of a house or other 
 tenement, a covenant is implied that the tenant will keep it in repair r 
 a tenant for life therefore shall be obliged to keep the tenant's houses 
 on the estate in repair, even though he be such without impeachment 
 of waste : and such is the case even with respect to a tenant at will > 
 for the tenant ought in justice to restore the premises in as good a 
 plight as they can be, consistent with such deterioration as is unavoid- 
 able (i). 
 
 A mortgagee in possession need only keep the estate in necessary re* 
 pair (/). 
 
 A yearly tenant however is bound only to tenantable, and not to last- 
 ing repairs. 
 
 Thus where an action was brought to recover damages for suffering 
 the plaintiff's house to be out of repair. The case was that the de- 
 fendant had rented a house of the plaintiff as tenant at will at 31/. per 
 ann. which he had quitted : after the defendant had given up possession, 
 the house being found to be much out of repair, the plaintiff had an esti- 
 mate made of the sum necessary ta put it into complete and tenantable 
 repair, for which sum this action was brought. But Lord Kenyan said, 
 it was not to be permitted to the plaintiff to go for the damages so 
 claimed. A tenant from year to year was bound to commit no waste, 
 
 (a) Sh.rp. Teach. 167. (J) 1 K. Bl. 38o. z Ibid. 123. (0 5 T. R, r 3- 
 
 00 4 T. R. 3:9. (') 3 Atk. .383. (/) 3 Atk. 5x8.
 
 Sect. I.] Of implied Covenants* c 245 
 
 and to make fair and tenantable repairs, such as putting in windows or 
 doors that have been broken by him, so as to prevent waste and decay 
 of the premises ; but that in the present case the plaintiff had claimed 
 a sum for putting on a new roof on an old worn out house ; this his 
 Lordship thought the tenant not to be bound to do, and that the plain- 
 tiff had no right to recover it (a). 
 
 But (strict ■ tenant at will, it is said, is not bound to repair or sus- 
 tain houses, like tenant for years [b). 
 
 It has been held that if a man has an upper room in a house, an ac- 
 tion would lie against him to compel him to repair his roof (c) ; and so 
 where a man has a ground.room, that they over him might have an ac- 
 tion to compel him to keep up and maintain his foundation : but this 
 seems to be erroneous ; there is, indeed, a writ in Nat. Brev. 127. to a 
 mayor, to command him that has the lower rooms to repair the founda- 
 tion, and him that has a garret to repair the roof; but that was grounded 
 on a custom \d>. 
 
 Payment of Rem. — As in every contract, there must be a legal consi- 
 deration to make it valid, so where the relation of landlord and tenant 
 subsists, some quid pro quo must subsist also. Therefore, unless the 
 lease be granted in consideration of a fine or a sum in gross, an implied 
 contract is raised on the part of the tenant that he shall pay an annual 
 rent. 
 
 These implied covenants are said to be inherent, that is, such as ap- 
 pertain especially to the land ; as that the thing itself shall be quietly 
 enjoyed, shall be kept in reparation, and shall not be aliened ; or to pay 
 rent, not to cut down timber trees, or to do waste ; to fence the cop- 
 pices, when they be new cut and the like (e). 
 
 An implied covenant is in all cases controuled within the limits of an 
 express covenant ; for txpressum facit cessare taciturn (f). 
 
 Thus for example, with respect to the covenant for quiet enjoyment ; 
 if a man leases for years by the words " I have demised, <Sc." and the 
 lessor covenants that the lessee shall enjoy during the term without evic- 
 tion by the lessor, or any claiming under him (g), this express cove- 
 nant qualifies the generality of the covenant in law and restrains it by 
 the mutual consent of both parties, that it shall not extend farther 
 chan the express covenant : and this is consonant to the principle, 
 that where there is an express promise, another promise cannot be im- 
 plied (.*). 
 
 Caution, therefore, is to be used in introducing into a lease express 
 covenants in certain cases ; as the evil intended to be guarded against, 
 
 (j) 2 Esp. R. 59c. (I) i Cruise's Dig. tit. IX. s. 14, 15- W ll Mod - 8 - 
 
 (ji) 6 Mod. 314. ( c ) Shep. Touch. 161. 
 
 (/) 4 Co. 80. 1 Saund. 60. Cro.Eliz. 674. 1 Mod. 113. 2 LtLRaym. 14, 19. 
 C?) Bac Abr t tit. « CoveHant." ,'B.) Cro! Eliz. 6 74. (*) 7 T. R. 304.
 
 246 Of express Covenants. [Chap. X. 
 
 may frequently be prevented or recompensed in a more limited degree, 
 by an express, than an implied covenant. 
 
 The distinction between implied covenants by operation of law, 
 and express covenants, is that express covenants, are to be taken more 
 strictly (a). 
 
 If a bond is for performance of covenants, it is forfeited by a breach 
 of a covenant in law ; as if the lessee be evicted out of the premises 
 demised (/>). 
 
 Where the plaintiff paid money to the defendant, on the defendant's 
 promise to make him a lease of land, and before the lease made the 
 defendant was evicted, the plaintiff recovered the money in this action, 
 the consideration not having been performed (c). 
 
 Sect io x II. Of express Covenants. 
 
 Covenants. — An express covenant is the agreement or consent of two 
 or more by deed in writing, sealed and delivered, whereby either of the 
 parties promises the other that something is done already, or shall be 
 clone afterwards. He that makes the covenant is called the covenantor, 
 and he to whom it is made the covenantee (d). 
 
 The general principle is clear, that the landlord having the jus dispo- 
 nendiy may annex whatever conditions he pleases to his grant, provided 
 they be not illegal or unreasonable (<?). 
 
 No particular technical words are requisite towards making a cove- 
 nant j for any words, it seems, which shew the parties' concurrence to 
 the performance of a future act will suffice for that purpose \ as " yield- 
 ing and paying, £sV." (/). 
 
 Thus if lessee covenants to repair, "provided always and it is agreed, 
 that the lessor shall find great timber, i5c." this makes a covenant on 
 the part of the lessor to find great timber by the word " agreed," and it 
 shall not be a qualification of the covenant of the lessee -, but without 
 this word, it y/ould have been only a qualification of the covenant of 
 the lessee (g). 
 
 Covenants are either real or personal (/:). — Covenants real, or such 
 as are annexed to estates, shall descend to the heirs of the covenantee, 
 and he alone shall take advantage of them ; and such covenants are said 
 to run with the land, so that he that hath the one, is subject to the 
 other ; for which reason warranties were called real covenants — Cove- 
 
 (a) 3 Bur. 1639. (i) r Esp. N. P. 181. 4 Co. 80. 
 
 (0 Palm. 364. 1 Esp. N. P. 3. Fidt ante. C. It. S. II. (J) Shep. Touch. 160. 
 
 (,•) zT. R. 137. (/) 1 Bur. 290. 4 Mod. 92. 
 
 (f ) Bac. Abr. tit. " Covenant." (A.) & a, c. (0 Ibid. (E. a.)
 
 Sect. II.] Of express Covenants. 247 
 
 nants personal, are such whereof some person in particular shall hava 
 the benefit, or whereby he shall be charged ; as when a man cove- 
 nants to do any personal thing, as to build, or repair a house, SsV. or 
 the like [a). 
 
 In a lease of ground with liberty to make a watercourse^ and erect 
 a mill, the lessee covenanted for himself, his executors, and assigns^ not 
 to hire persons to work in the mill, who were settled in other parishes 
 without a parish certificate ; held that this covenant did not run with 
 the land, or bind the assignee of the lessee (b). 
 
 As to the construction of covenants, all contracts are to be taken ac- 
 cording to the intent of the parties expressed by their own words, and 
 if there be any dcubt in the sense of the words, such construction 
 shall be made as is most strong against the covenantor; lest by the 
 obscure wording of his contract, he should find means to evade and 
 elude it (c). 
 
 Under a lease for fourteen or seven years, the lessee only has the 
 option of determining it at the end of the first seven years ; every doubt- 
 ful grant being construed in favour of the grantee (d). 
 
 So tenant by the curtesy, in tail after possibility of issue extinct, 
 in dower, for life, for years, by statute or elegit, guardian, &c. hold 
 their estates subject to a condition in law ; so that if either of them 
 alien his land in fee, or claim a greater estate in a court of record than 
 his own, he forfeits his estate, and he in remainder or reversion may 
 enter ; and if such tenant do waste, he in reversion shall recover the 
 place wasted (e). 
 
 Of Conditions. — A condition signifies some quality annexed to a real 
 estate by virtue of which it may be defeated, enlarged, or created upon 
 an uncertain event. Also qualities annexed to personal contracts and 
 agreements are frequently called conditions ; and these, as well as co- 
 venants, must likewise be interpreted according to the real intention of 
 the parties, iZc. (/). 
 
 Conditions are either precedent or subsequent. Where a condition 
 must be performed before the estate can commence, it is called '< a con- 
 dition precedent ;" but where the effect of the condition is cither to en- 
 large or defeat an estate already created, it is then called *« a condition 
 subsequent" (g). 
 
 Conditions are most properly created by inserting the very word 
 " condition" or the words "■ on condition ;" but the word commonly 
 and as effectually made use of is that of " provided •" wherefore a con- 
 dition, and a proviso, are synonymous terms (&). 
 
 But if a proviso, or condition have dependance upon another clause 
 
 (a) Shep. Touch. 161. (b) loEast. 130. (c) Bac. Abr. tit. " Covenant." (F.) 
 
 (</) y East. 15. 0) Shep. Touch. 1 25. (/) Ibid. tit. « Conditions." 
 
 (g) Cruise's Di£. XII. tit. I, s. 6. 1 Inst. 216. 3. 237, a. n. r» (£)Shep. Touch. 16c
 
 '248 Of express Covenants. [Chap. X. 
 
 of the deed, or be the words of the lessee, to compel the lessor to do 
 something, then it is not a condition, but a covenant only •, as if there 
 be in the deed a covenant that the lessee shall scour the ditches, and 
 then these words follow, '« provided that the lessor shall carry away the 
 earth" (a). 
 
 If the words run thus : " provided always, and the lessee, &c. doth 
 covenant, tzc. that neither he nor his heirs shall do such an act " this 
 is both a condition and a covenant (b\ 
 
 If a man make a lease for years by indenture '* provided always and 
 it is covenanted and agreed between the parties, that the lessee shall 
 not alien ;" this is both a condition and a covenant ; for it was adjudged 
 that this was a condition by force of the proviso, and a covenant by force 
 of the other words (c). 
 
 If a man leases for years, rendering rent, and the lessee covenants 
 to repair, is'e. and afterwards the lessor devises to the lessee for more 
 years, yielding the like rent, and under such covenants as were in the 
 first lease, yet this makes no condition ; for though after the first lease 
 is ended, the lessee shall not be bound by the covenants, yet the will 
 expressing that the lessee should have the lands, observing the first co- 
 venants, it shall not be taken to be a condition by any intent to be col- 
 lected out of the will ; for covenants and conditions differ much (d). 
 
 With respect to what shall be deemed a condition, it is a rule in 
 provisoes, that where a proviso is that the lessee shall perform or not 
 perform a thing, and no penalty is annexed to it, that is a condition, 
 otherwise it would be void ; but if a penalty is annexed, it is a cove- 
 nant (e). 
 
 A condition may be annexed to an estate of inheritance, freehold, or 
 for years ; or to a grant of tithes by the clergy (f). 
 
 So, estates made by deed to infants, and feme coverts, upon condi- 
 tion, shall bind them, because the charge is on the land (g). 
 
 The heir, though net named, may take advantage of a condition an- 
 nexed to a real estate h s : and where the condition of an obligation was 
 to make a lease, or pay ioc/. the obligee dying, though the election was 
 taken away, it was held that the executor should have the ioo/. agree- 
 ably to the rule in cases of heirs (i). 
 
 But a condition shall not be construed to extend to things of common 
 right, as if the condition be that one shall enjoy such land immediately 
 upon the grantor's death; though the executor take the emblements, the 
 condition does not extend to it (k). 
 
 A lease for life on condition, being a freehold, cannot cease without 
 
 (a) Shtp. Touch, uz. (b) Ibid. (c) Co. Lit. ao; v b. 
 
 (d) Bac. Abr. tit. " Conditions." (G.) (e) Cro. Eliz. Z4I. 
 
 (/) Com. Dig. tit. " Conditions." (A. 7.) (g) % Danv. 30. {b) 1 Vm, 47. 
 
 (») 1 Siilk. 172, (i) Com. Dig. tit. " Condition." (E.)
 
 Sect. II. 3 Of express Covenants. 249 
 
 entry ; but if it be a lease for years, the lease is void ipso facto on breach 
 oi the condition, without any entry (a). 
 
 As to what shall be a suspension of a condition, if lessee for years 
 hath execution by elegit of a moiety of the rent and reversion against 
 the lessor, where the lease is upon condition, this is a suspension of all 
 the condition during the time of the extent ; and though but a moiety 
 of the rent "s extended, yet the entire condition is suspended. So it is 
 i£ a stranger hath execution by elegit (£). 
 
 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. 
 So a condition to defeat a deed -may be annexed to the reservation of the 
 rent, explaining the manner of payment (c). 
 
 A proviso or condition differs also from a covenant in this, that a 
 proviso is in the words of, and binding upon both parties, whereas a 
 covenant is in the words of the covenantor only. 
 
 Under a power to tenant for life to lease for years, reserving the 
 usual covenants, c*c a lease made by him, containing a proviso, that 
 in case the premises were blown down, or burned, the lessor should 
 rebuild, otherwise the rent should cease, is void, the jury finding that 
 such covenant is unusual (d). 
 
 So, under a power to a tenant in possession to let all or any part of 
 the premises, so as the usual rents be reserved, a lease of tithes, which 
 had never been let before, was held void (?). 
 
 So, a covenant not to assign without licence, was held by Thurlow, 
 L. C.J. not to come within a contract to grant a lease with common and 
 usual covenants. " Common and usual" covenants, his Lordship ob- 
 served, must mean covenants incidental to the lease : and that though 
 the covenant not to assign without licence might be a very useful .one 
 where a brewer or vintner let a public house (as was the case here), that 
 would not make it a common covenant {/). 
 
 Covenant for quiet enjoyment. — An express covenant, usual on the part 
 of the lessor, is for quiet enjoyment of the premises demised, or to save 
 harmless the lessee from all persons claiming title. 
 
 A covenant for quiet enjoyment implies, of course, that the lease 
 shall be a good and valid demise, as a bad lease would be a breach of 
 such covenant for the reasons assigned before. This being the case, the 
 old covenant, for farther assurance, becomes unnecessary, and has there- 
 fore fallen into disuse (g). 
 
 Indeed, according to the ancient mode of conveyance, deeds were 
 confined to a very narrow compass. The words " grant and enfeoff," 
 amount to a general warranty in law, and have the same force and effect. 
 
 (a) i Inst. 214. (&) Bac. Abr. tit. " Conditions." (O. 3.) 
 
 (0 Com', Dig. ut ant:. (A. 9.) (0 1 T. R. 705. (0 3 T. R. 665, 
 
 (/) 3 Br. R. 632, (£) Stvep. Touch. 1 ;c>
 
 2j0 Of express Covenant's. [Chap. X. 
 
 The covenants therefore, which have been introduced in more modern 
 times, if they have any use besides that of swallowing a quantity of 
 parchment, are intended for the protection of the party conveying ; and. 
 are introduced for the purpose of gratifying the general warranty, which 
 the old common law implied {a). 
 
 If one make a lease of land to another, and covenant that he shall 
 quietly enjoy it without the let or molestation of any person whatsoever, 
 or without the let of any person whatsoever claiming by or under the 
 lessor; in both these cases, the covenant, it is said, shall be taken to 
 extend to such persons as have title, or claim some estate under the 
 lessor j for if, in the first case, the lessee shall be disturbed by any 
 claim, entry, or otherwise by any person that hath no title •, or in the 
 second case, by any person who shall claim under another and hath 
 title, or that shall claim under the lessor, this is held to be no breach 
 of the covenant. Sed quarc as to the first case ; for herein some con- 
 ceive a difference between a covenant in deed, and a covenant in law; 
 and howsoever the latter is extended only to evictions by title, yet that 
 the covenant in deed shall be extended further •, therefore that if A. 
 make a lease to B. and covenant that B. shall quietly enjoy it during the 
 term without the interruption of any person or persons, in such case, 
 if a stranger, having no right, interrupt B. he may have an action of 
 covenant, as, when such a promise is by word, an action on the case 
 will lie upon it (b). 
 
 A covenant for quiet enjoyment does not extend to oblige the lessor 
 to rebuild (c). 
 
 A covenant that the lessee shall quietly enjoy against all claiming, or 
 pretending to claim, a right in the premises, was held to extend to all 
 interruptions, be the claim legal or not, provided it appear that the dis- 
 turber do not claim under the lessee himself (d). 
 
 It seems indeed to have been at one time held, that if the lessor un- 
 dertook expressly that the lessee should enjoy during the term " quietly, 
 peaceably, and without interruption," it would extend as a covenant 
 against all tortious ejectments whatsoever ; but this doctrine is now over- 
 ruled (f). 
 
 For, where a covenant was inserted in a conveyance of lands in Ame- 
 rica y during the American war, that the grantor had a legal title, and 
 that the grantee might peaceably enjoy, l5c. without let, interruption, 
 (S'c of the grantor and his heirs, " and of and from all and every other 
 person or persons whomsoever," it was held not to be broken by the 
 States of America seizing the lands as forfeited for an act done previous 
 to the conveyance, notwithstanding the subsequent acknowledgment of 
 
 («) % Bos. U Pul. 26. (b) Shcp. Tonch. 166. Lofft's R. 460. (c) Ambl 620. 
 
 (d) 10 Mod. 384. 1 Com. R t 130 1 T. R. 673. (*) 1 £<P. N. P. 3;:. Hob. 35. 
 
 5
 
 Sect. II. J Of express Covenants. 2j1 
 
 her independence by this country : for such a covenant does not extend 
 ■to the acts of wrong doers, but only to persons claiming title [a) ; and 
 even a general warranty, which is conceived in terms more general 
 than the present covenant, has been restrained to lawful interrup- 
 tions [b). 
 
 So, if a lease be made for a term of years by deed, so that the lessor 
 is chargeable by writ of covenant, if a stranger who has no right oust 
 that termor, yet he shall not have a writ of covenant against his lessor ; 
 for a covenant for quiet enjoyment shall not be construed to extend to a 
 wrongful ejectment by a stranger, unless so expressed •, because for this 
 wrong, the lessee may have his remedy by action against the stranger 
 himself [c). 
 
 But if he to whom the right belongs oust the termor, then he shall 
 have covenant against the lessor j so if the lessee be ejected by the les- 
 sor himself (d). 
 
 So, if the lessor covenants against the acts of a particular person or 
 particular persons, covenant will lie (*•). 
 
 Jf a man covenant that he will not interrupt the covenantee in the 
 enjoyment of a close, the erection of a gate which intercepts it, is a 
 breach of the covenant, although he had a right to erect it {f). 
 
 If the lessor covenants with the lessee that he hath not done any act 
 to prejudice the lease, but that the lessee shall enjoy it " against all per- 
 sons j" in this case, these words " against all persons" shall refer to the 
 first, and be limited and restrained to any acts done by him, and no 
 breach shall be allowed but in such an act (g). 
 
 In a covenant that the lessee shall quietly enjoy, &'c. with an ex- 
 ception of the king, his heirs, and successors, an interruption by the 
 king's patentee is a breach of the covenant j for such patentee is not 
 excepted (£). 
 
 If a lessee holds his estate on condition of paying an annuity, non- 
 payment is a breach of covenant for quiet enjoy ment, although no de- 
 mand of it was made, and the lessee himself might have paid it (i). 
 
 But if a covenant be to save the lessee harmless from a rent charge, 
 if the lessee pay it without compulsion, he pays it in his own 
 wrong (k). 
 
 The lessor after a demise of certain premises with a portion of an 
 adjoining yard, covenanted that the lessee should have " the use of 
 the pump in the yard jointly with himself, whilst the same should 
 r.tmain there, paying half the expences of repair." The words, 
 
 ( a ) 3 T. R.584. (l) ; Ibid, s 8 7. 
 
 (r) Ibid. n. a. 22 H. 6. 52. b. pi. 26. Cro. Lliz. 914. Cro. Jac. 425. Bull. N. P. 161. 
 (</) 3T. R. 387.11. a. Cro. F.iiz. zij. (*) Cro. Eliz. 213. 1 Str. 400. 
 
 (/) 8 Mod. 318. (£) Shop. Touch. 16;. (/•) Cro. Eiiz.518. (i) Ibid. 68S> 
 
 it) 3 Salk. 10S.
 
 252 Of express Covenants, [Chap. X. 
 
 « •whilst &c." reserve to the lessor a power of removing the pump at 
 his pleasure, and it is no breach of the covenant, though he remove it 
 without reasonable cause, and in order to injure the lessee ; but with- 
 out those words, it would have been a breach of covenant to have 
 removed the pump (a). 
 
 In cases wherein the lease being avoided, becomes in fact a nullity, a 
 covenant for quiet enjoyment is completely broken. 
 
 For payment of Rent. — A covenant for the payment of the rent is 
 also generally inserted in the lease. 
 
 The tenant's liability to pay rent subsists during the continuance of 
 the lease, notwithstanding he may become a bankrupt, and be deprived 
 of all his property [b). 
 
 So, where the lessee covenants generally to pay rent, he is bound to 
 pay it though the house be burned down (e). 
 
 So, a lessee who covenants to pay rent and to repair, with express 
 exception of casualties by fire, or tempest, is liable upon the covenant 
 for rent though the premises are burned down, and not rebuilt by the 
 lessor after notice ; for whatever was the default of the lessor in not 
 repairing, and though it is a hard case, yet the lessee must at all 
 events perform his covenant, by which he was expressly bound to pay 
 rent during the term (d). 
 
 The rule is, that when the law creates a duty, and the party is dis- 
 abled to perform it without any default in him, and he has no remedy 
 over, the law will excuse him : but when the party by his own con- 
 tract creates a duty or charge upon himself, he is bound to make it 
 good if he may, notwithstanding any accident by inevitable necessity ; 
 because he might have provided against it by his contract (e). 
 
 Where plaintiff was lessee of a colliery, at the rate of so much per 
 wey, and the colliery became not worth working, upon the plaintiff 
 offering to pay for all the coal that could be got, he was relieved by 
 the Court of Chancery against the future rent, and the covenant in the 
 lease to work the colliery (f). 
 
 Of forehand Rents or Fines. — Another species of rent occurs, pay- 
 ment of which is generally stipulated by ^ covenant in the lease: 
 and this is sometimes called a fore-hand rent, and sometimes a fore- 
 gift or income, but more commonly a fine, which is a premium given 
 by the lessee on the renewal of his lease, and has been considered as 
 an improved rent (g). 
 
 In the case of renewal of a lease, by an ecclesiastical corporation, 
 though a dean and chapter are reasonable in the fines they demand, if 
 an accident delays the lease, which has not happened from their fault 
 
 (a) 7 Ei;t, n6. (4) 7T. R. 616. 8T. R. 61. (<) 2 Str. 763. I Ld. Raym. 1477. s. c. 
 (J j 1 T. R. 51c. 3 Bur. 164c. 6T. R. 4S8. (e) 6 T. R. 7JI. (/) z Br. R. 311. 
 
 ( g ) 1 T. R. 4S6. 3 T. R. 46;. 
 
 7
 
 Sect. II.] Of express Covenants. £53 
 
 or that of the tenant, yet if it is not completed till a new member 
 comes in, he shall have his proportion (a). 
 
 Nomine Poena. — A farther security for the payment of rent is some- 
 times agreed upon, by the insertion of a covenant by the terms of 
 which the lessee forfeits a certain sum upon non-payment of such rent. 
 This nomine poena, as it is called, is incident to the rent, and shall 
 descend to the heir. If an annual rent, therefore, be devised, the 
 nomine poena passes as incident thereto and the grantee may have an 
 action of debt for the arrearages thereof {b). 
 
 By accepting the rent, however, the party it should seem waives the 
 penalty (c). 
 
 Though forfeiture is mentioned to be nomine poena, or for not paying 
 a collateral sum, it is no nomine poena if it be not of a rent. 
 
 A penalty of a similar kind is also inserted sometimes in case the 
 lessee dig for bricks, or lessen the quantity or value of the soil by 
 similar means. But a covenant of this nature (unless the penalty be 
 sufficiently great) is perhaps less expedient than the implied one, or an 
 express one to use the land in an husband-like manner, or not to dig, 
 l£c. for a nomine poena in leases to prevent the tenant from plowing 
 (ex. gr.) is the stated damages (d) ; so that damages &c. could not be 
 recovered beyond the amount of the penalty in the one case, whereas in 
 the other cases, the landlord would have a prospect of being recom- 
 pensed to the extent of the injury done (<?). 
 
 If there be a nomine poena given to the lessor for non-payment, the 
 lessor must demand the rent before he can be entitled to the penalty ; 
 or if the clause be, that if the rent were behind, the estate of the 
 lessee should cease and be void; in these cases there must be an actual 
 demand made ; because the presumption is, that the lessee is attendant 
 on the land to save his penalty and preserve his estate, and therefore 
 shall not be punished without a wilful default, and that cannot be 
 made to appear without a demand be proved, and that it was not 
 answered; and such demand must be made at the day prefixed for 
 the payment, and ailed ged expressly to have been made in the 
 
 pleading The action of ejectment is now the usual mode adopted 
 
 for taking advantage of the tenant's default, in which he can 
 only plead the general issue; but the lessor of the plaintiff must 
 be prepared to prove a demand, where a demand is absolutely ne- 
 cessary (/). [See also post " Condition to re-enter on non-payment of 
 rent."] 
 
 Bond for performance of Covenants. - If a man covenants to enter 
 into a bond to the lessee for the enjoyment of certain lands demised, 
 
 (a) 3 Atk. 473, (b) Co. Lit. 61. b. Cro. Eliz. 295. Lutw. 1156. 
 
 (0 Cowp. 247. 00 3 Atk. 396. 
 
 ■ t) Doug. 49, 50. (/) Eac, Abr, tit. " Conditions." (0,2.) Vidi fat.
 
 2J4 Of express Covenants* [Chap. X. 
 
 and does not express what the sum shall be, he shall be bound in such 
 a sum as is equal to the value of the land (a). 
 
 A bend for the performance of covenants or agreements has been held 
 to be only a security (under stat. 8 csf 9 W. 3. c 11.) to the extent 
 of the penalty (b). Yet, it has also been held that the penalty is 
 merely a security, and that where it is not sufficient, the plaintiff may 
 recover damages as well as the penalty ; and that nothing can prove 
 the principle stronger than the constant practice, where an action is 
 brought on a bond, of giving damages (c). 
 
 A bond for non performance of covenants is forfeited by a breach 
 of a covenant in law; ab it the lessee be evicted out of the premises 
 demised (//). 
 
 Covenant to pay Taxes. — With respect to taxes, the tenant commonly 
 covenants to pay all public impositions, except the land-tax. 
 
 "When one covenants with another that he shall have lands discharged 
 of all rents, the covenantee ought to be discharged of a quit-rent (<r). 
 
 80, a grantee of a fee-farm-rent, " without any deduction, defal- 
 cation, or abatement whatsoever," is entitled to the full rent without 
 deducting the land-tax if). 
 
 So, if a tenant covenant to pay a rent without deducting taxes, 
 a statute authorizing the tenants to deduct, will not repeal the cove- 
 nant;'^). 
 
 A covenant to pay taxes generally, includes parliamentary taxes, 
 and, as a consequence, the land-tax : for when " taxes" are generally 
 spoken of, if the subject-matter will bear ir, they shall be intended 
 parliamentary taxes given by the crown (h). 
 
 So, if a lease be made for years, rendering rent free and clear from 
 all manner of taxes, charges and impositions whatsoever, the lessee is 
 bound to pay the whole rent without any manner of deduction for any 
 old or new tax, charge or imposition whatsoever (;'). 
 
 If a tenant covenant to pay " all taxes," this binds him to the pay- 
 ment of such taxes only as were in being when the lease was made, 
 and not to taxes or charges afterwards imposed (<£;. 
 
 So, a covenant to discharge from taxes extends to subsequent taxes 
 of the same nature, but not to those of a different nature (/). 
 
 A covenant to pay taxes on the land does not extend to the rates to 
 church and poor, for they are personal charges (m). 
 
 Covenants relative to this subject are generailv inserted in leases,- 
 and are authorized by the land-tax acts, which provide " that nothing 
 
 (-0 3 Co. 78. 2. (!) Doug. 49, 50. (c) 2 T. R. 3S9. 
 
 {J) 4 Co. 80. 2 Res. (i) I Com. R. 180. (/) Doi:g. 624. 
 
 ( £ ; 1 Ld. Raym. y.o. (L) Dot.c. 614,615. 12 Mod- 5.5. :68. 11 Mod. 2:8. 
 
 (/') Eac. Abr. tit." Covenant." (p.j C.;rth. 135. Dot:-. 6:4. (i) 1 Y>! t. 2:5. 
 
 (/) 1 Salk. 198. 3 T. R. 641- f«s) 8 Med. 3x4.
 
 Sect. II.] Of express Covenants, 255 
 
 " therein contained shall be construed to alter, change, determine, or 
 « make void any contracts, covenants or agreements whatsoever, be- 
 " tween landlord and tenant, or any other persons, touching the pay- 
 «« ment of taxes and assessments." 
 
 A distinct covenant in a lease whereby the tenant bound himself to 
 pay the property tax and all other taxes imposed on the premises or on 
 the landlord in respect thereof : though void and illegal by the statute 
 46 Geo. 3. c. 65. j. 115. will not avoid a separate covenant in the 
 lease for payment of rent clear of all parliamentary taxes or generally, 
 for such general words will be understood of such taxes as the tenant 
 might lawfully engage to defray (a). 
 
 Under a covenant by a tenant for the payment of 80/. yearly rent, 
 all taxes thereon being to him allowed, and also that he would pay all 
 further or additional rates on the premises, or on any additional build- 
 ings or improvements made by him ; and a covenant by the landlord to 
 pay all rates on the premises, or on the tenant in respect of the said 
 yearly rent of 80/., except such further or additional taxes as may be 
 assessed on the premises ; the tenant is bound to defray all increase of 
 the old, as well as any new rates, beyond the proportion at which the 
 premises were rated at the time of the lease, which was 20/. in respect of 
 the 80/. rent (£). 
 
 Where land was mortgaged to secure an annual payment of 20/. to 
 a widow, in satisfaction of her dower, this annual payment being 
 secured out of land ought to answer taxes as the land does ; but if the 
 tenant in the payment of the annuity to the widow omits to deduct 
 for taxes, he shall not make her refund in equity ; [but it may be re- 
 covered at law in an action of assumpsit, being money paid to her 
 use, £sV.] (<:). 
 
 Covenant to cultivate the Land. — In husbandry leases, it is usual to in- 
 sert a special covenant, as to the mode of cultivation ; for without such 
 a covenant, the lessee would be left to his choice as to the treatment 
 of the land ; provided he breaks not the implied covenant to treat it in 
 a husbandman-like manner. 
 
 Respecting a covenant to use the land in a husbandman-like manner 
 and to deliver it up in like condition, it was held to be matter of law 
 to determine what was using the land in an husbandman-like manner, 
 and Buller J. gave it as his opinion, that under such a covenant the 
 tenant ought to use on the lai*d all the manure made there, except 
 that when his time was out, he might carry away such corn and straw 
 as had not been used there, and was not obliged to bring back the 
 manure arising from it (d). [This is a covenant which we conceive 
 would be governed in its construction by the mode in which the land 
 
 <*) 11 East, ^5. (I) 16 East, 29. CO 3 P- u ' ras - ia8 r - ("0 l E 'P- *•• p - ?
 
 256 Of express Covenants. [Chap. X- 
 
 demised had been usually cultivated, by the nature of the soil, and by 
 the custom of the country.] 
 
 Indeed, in a recent case, it was observed by Lord Ellenborough y that 
 evidence that an estate had been managed according to the custom of 
 the country, would be always a medium of proof that it had been 
 treated in a good and husbandman-like manner (a). 
 
 Lessee covenants to leave sufficient compost on the so-' of the land- 
 lord at the end of the term, he the lessee having the ; .d, barn, and 
 a room to lodge in and dress diet. This was hoiuc : o be a mutual 
 covenant and not a condition. It differs from a case where the tenant 
 covenants to repair, if the lessor finds sufficient timber; for th< re the 
 proviso restrains the covenant : but in this case, said Lord Mansfield, 
 there is not the least foundation for such construction (b). 
 
 To repair and deliver up in good condition , CSV. — As to an express 
 covenant to repair, if a lessee covenants to keep a house in repair, and 
 leave it in as good plight as it was at the time of making the lease (r) : 
 in this case, the ordinary and natural decay is no breach of the coven- 
 ant, but the lessor is bound to do his best to keep it in the same plight, 
 and therefore should keep it covered {d). 
 
 An agreement by the tenant to leave a farm aa he found it, is an 
 agreement to leave it in tenantable repair ; and will maintain a declara- 
 tion so laid (f). 
 
 A covenant in a lease to deliver up at the end of the term, all the 
 trees standing in an orchard at the time of the demise, " reasonable 
 use and wear only excepted," is not broken by removing trees de- 
 cayed and past bearing, from a part of the orchard which was toe 
 crowded {/). 
 
 A general covenant to repair, and to deliver up in repair, extends, 
 it seems, to all buildings erected during the term (g). 
 
 Therefore were a lease was made of three messuages for forty-one 
 years, in which the lessee covenanted " to pull them down and erect 
 " three others in their place, and also to leave the said premises and 
 t( houses thereafter to be erected at the end of the term in good 
 " repair ;" and afterwards the lessee pulls down the three houses and 
 builds five ; he must leave them all in good repair at the end of the 
 term : for though in the first covenant he is bound only to repair the 
 messuages agreed to be erected, yet by the last covenant he is obliged 
 to leave in good repair the houses thereafter to be erected indefinitely. 
 which extends to all houses that shall be built upon the premises during 
 the term (/>). 
 
 (a) 4 East's R. 154. post. C. XV. s. 1. {b) Lofft's R. 57. 
 
 (c) Fitz. Abr. tit. " Covenant," fol. 4. (d) Et v'td. % Esp. R. 590. ante. 
 
 (.) z Bl. Rep. 842. et vid. F. N. B. 145. K. pott. C. XV. s. 1. (/) 3 Campb, 44?- 
 
 (,?"» i Esp. N. P. Z77. (*) Bac Abr. tit. « Covenant." (F.)
 
 Sect. II.] Of express Covenants. 257 
 
 So, if a man takes a lease of a house and land, and covenants to 
 leave the demised premises in good repair at the end of the term, and 
 he erects a messuage upon part of the land, besides what was before; 
 he must keep, or leave this in good repair also (a). 
 
 But in a building and repairing lease, a covenant " to leave the 
 " demised premises, with all new erections, well repaired," was con- 
 strued to extend to the new erections only; a sum of money being 
 agreed to be laid out in new erections and rebuilding, and the covenant 
 " to keep in repair" extending only to new erections (b). 
 
 "Where in a lease with a clause of re-entry, there is a general coven- 
 ant on the part of the tenant to keep the premises in repair; and it is 
 further stipulated by an independent covenant, that the tenant within 
 three months after notice, shall repair all defects specified in the 
 notice ; the landlord after serving him with a notice may within the 
 three months bring an ejectment against him, for a breach of the general 
 covenant to repair (c). 
 
 A court of equity cannot decree a specific performance of a covenant 
 to repair; and where an ejectment is brought by a landlord for breach 
 of a covenant to repair, it would seem that equity cannot relieve (d). 
 
 Accidental Fire. — A lessee of a house, who covenants generally to 
 repair, is bound to rebuild it, if it be burned by accidental fire: so, if 
 the premises be consumed by lightning or the King's enemies, he is 
 still liable (e). 
 
 Touching the progress of the law as to the accidental burning of 
 houses, so far as regards landlord and tenant : at common law lessees 
 were not answerable to landlords for accidental or negligent burning ; 
 then came the statute of Gloucester, which by making tenants for 
 life and years liable to waste without any exception, consequently 
 rendered them answerable for destruction by fire : thus stood the law 
 in Lord Coke's time. 
 
 But now by the statute 6 Anne, c, 31. the antient law is restoredj 
 and the distinction introduced by the statute of Gloucester between 
 tenants at will and other lessees is taken away : for by the 6th section 
 of that statute it is enacted, That no action, suit, or process whatso- 
 ever shall be had, maintained, or prosecuted against any person in 
 whose house or chamber any fire shall accidentally begin, or any re- 
 compence be made by such person for any damage suffered or occa- 
 sioned thereby : and if any action shall be brought, the defendant may 
 plead the general issue and give the Act in evidence : and in case the 
 plaintiff become nonsuit, or discontinue his action or suit, or if a 
 verdict pass against him, the defendant shall recover treble costs. 
 
 (a) Bac. Abr. tit. " Covenant." (F.) {b) i Bur. 29c, 291. (c) 2 Campb. 520. 
 (0 16 Ves. J. 402. 0,. 2 Com. Rep. 627. 6 T. R. 650. Dyer, 33. a Show. 401. 3 \V. 
 Jun. 34. Co. Lit. 37. 2. n. r. 
 
 s
 
 ~3* Of express Covenants. [Chap. X, 
 
 Section 7. provides, That nothing in the Act contained shall extend to 
 defeat or make void any contract or agreement between landlord and 
 tenant. 
 
 An exception of accidents by fire is now in many cases introduced 
 into leases to protect the lessee, who would (as we have seen) be 
 liable to rebuild under his covenant to repair (a) ; and where lessee of 
 a house and wharf covenanted to repair, accidents by fire excepted \ 
 the house was burned clown, and the lessor having insured received 
 the insurance money, but negketed to rebuild ; and brought an action 
 at law for the rent; a bill for an injunction till the house was rebuilt 
 was held proper (b). 
 
 But though such exception will protect the lessee from his co- 
 venant to repair, yet he is liable (as wc have also seen) to payment under 
 n covenant to pay rent, though die premises be burnt down and 
 not rebuilt by the lessor, by which he is deprived of all use and enjoy- 
 ment of them (r). 
 
 There is no equity in favour of a lessee of a house, liable to repair, 
 with the exception of damage by fire, for an injunction against an 
 action for payment of rent upon the destruction of the house by nre (d). 
 
 When there is a covenant to repair on the part of the lessee, if he 
 pull down houses, no action will lie against him till the end of the 
 term, for before that period he may repair them. But if he cut down 
 timber or trees, covenant lies immediately, for such cannot be replaced 
 in the same plight at the end of the term (f). 
 
 If the covenant be, " it is agreed that the lessee shall keep the 
 ** house demised in good repair, the lessor putting it in good repair," 
 covenant lies against the lessor on these words, if he do not put it 
 into repair (f). 
 
 It has been held, that if the lessor covenant to repair during the 
 term, if he will not do it, the lessee may repair and pay himself by 
 way of retainer (g) : but licit, C. J. doubted of this, unless there 
 was a covenant to deduct the expence of the repairs from the rent: 
 and though cases occur in the books, wherein it has been thought by 
 some of the Judges that a lessee might expend part of the rent in 
 repairs of the premises if they required repair, and might set off such 
 expenditure in an action cither of debt cr covenant for rent; yet such 
 an opinion is erroneous, for the lessor and lessee have their respective 
 remedies on the covenants contained in the lease: and the maxim of 
 law, " so to judge of contracts as to prevent a multiplicity of suits," 
 does net apply 'J:). 
 
 So that the point seems to be now settled; for upon a plea of nil 
 
 U) ', T, R. (,<r. (&) Arabl. 620. (c) 1 T. R. 51c. ante. p. 321. U) 18 Vrs. J. 115. 
 (0 F.N. B. ; K. (/) 1 Esp. N. P. 278. (x) I Leon. 237. Cro. EHz. sal. 
 
 1 Ld. Raym. 42^ ■) Mod. 6c. [') 1 T. R. 446.
 
 Sect. II.] Of express Covenants. £59 
 
 debet in an action of debt for rent, the defendant cannot give in evi- 
 dence disbursements for necessary repairs, for he might have had co- 
 venant against him [a). 
 
 Where notice of pulling down and rebuilding a party-wall was 
 given under the Building Act 14 G. 3. c. 7, 8, and the tenant of the 
 adjoining, who was under covenant to repair, finding it necessary in 
 consequence to shore up his house, and to pull down and replace the 
 wainscot and partitions of it, instead of leaving such expences to be 
 incurred, and paid by the owner of the house, giving notice in the 
 manner prescribed by the Act, employed workmen of his own to do 
 the necessary works and paid them for the same: held, that he could 
 not recover over against his landlord such expences incurred, by his 
 own orders, and paid for by him in the first instance, the landlord 
 being made to reimburse his tenant only in those cases, where money 
 has been paid by the tenant to the owner of the adjoining house, for 
 works done by him (b). 
 
 A covenant to repair is a covenant that must run with the land, for 
 it affects the estate of the term, and the reversion in the hands of any 
 person that has it (c). 
 
 Covenant to reside on the Premises. — A covenant in a lease that the 
 lessee, his executors and administrators, shall constantly " reside upon 
 " the demised premises" during the demise, is binding on the assignee 
 of the lessee, though he be not named. Indeed, the 1st and 6th re- 
 solutions in Spencer's case are directly in point: which resolutions are 
 1st. That when the covenant extends to a thing in esse, parcel of the 
 demise, the thing to be done by force of the covenant is quodam medo 
 annexed and appurtenant to the thing demised and shall go with the 
 land, and shall bind the assignee, although he be not bound by ex- 
 press words : 6th. That if lessee for years covenants to repair the 
 houses during the term, it shall bind all others as a thing which is 
 appurtenant, and goeth with the land, in whose hands soever the 
 term shall come, as well those who came to it by act of law, as by the 
 act of the party ; for all is one, having regard to the lessee. And if 
 the law should not be such, great prejudice might accrue to him ; and 
 reason requires that they who shall have the benefit of such cove- 
 nant when the lessor makes it with the lessee, should on the other 
 side be bound by the like covenant, when the lessee makes it with the 
 lessor (d). 
 
 So where A. gave by will his tenant-right, which he held by lease, 
 to B. but not to dispose of, nor sell it ; and if he refused " to dwell 
 c: there or keep it in his own possession," then that C. should have his 
 Ci tenant-right of the farm." B. having borrowed money, left the 
 
 (<0 Bull. N. P. 176. (b) 10 East, 227. (c) 1 Salk. 317, 
 
 fd) 2H. Bl. M3. 
 S2
 
 260 Of express Covenants. [Chap. X. 
 
 title deeds with his creditor as a security, and confessed a judgment to 
 secure the money; and having also given a judgment to another 
 creditor who issued an execution against him, the sheriff sold the lease 
 to the creditor with whom the deeds were deposited, he paying the 
 debt of the plaintiff in the execution : and B. having left the premises 
 and ceased i'> dwell there on the day of the execution, before the 
 sheriff entered : it was holden that C. the remainder-man was entitled 
 to enter, for that the acts of B. amounted to a voluntary departing 
 with the estate (a). 
 
 Not to permit particular Trades to be carried en.— In leases of tene- 
 ments, especially in towns, a covenant is frequently inserted to 
 restrain the lessee from carrying on, or assigning the houses to per- 
 sons carrying on obnoxious trades, and also from having or per- 
 mitting any sale of furniture in the house: a precaution which becomes 
 very necessary, not merely from the injury which may otherwise be 
 done to the premises, but likewise from the respectability being lessened, 
 and the good-will of them being thereby diminished (b). 
 
 If the lessee of a house covenants not to lease the shop, yard, or 
 other thing belonging to the house, to one who sells coals, nor that 
 he himself will sell coals there, and afterwards he leases all the house 
 to one who sells coals, he has broken the condition (<:). 
 
 Where the lessee of a house and garden for a term of years, cove- 
 nanted not to use or exercise any trade or business whatever; and 
 afterwards assigned the lease to a Schoolmaster , who carried on his 
 business in the house ; the assignment was held to be a breach of the 
 covenant {(I). 
 
 Schedule of the Goods. — In case of the lease of a house, together with 
 the goods, it is usual (as we havtv before mentioned) to make a 
 schedule thereof and affix it to the lease, and to have a covenant from 
 the lessee to re-deliver them at the end of the term ; for without such 
 covenant the lessor can have no remedy but trover or detinue for them 
 after the lease is ended : for as the law does not create any covenant 
 upon such personal things, an express covenant becomes necessary (e). 
 
 Covenant not to assign. — -A covenant not to assign, and a proviso of 
 re-entry in case the lessee do assign, arc generally contained in leases. 
 The landlord relies perhaps on the tenant's honesty ; or he approves of 
 his skill in farming, and thinks that he will take more care of the farm 
 than another; and therefore he has a right to guard against the event 
 of the estate's falling into the hands of any other person, who may 
 not manage it so well as the original tenant: indeed it is but reasonable 
 that a landlord should exercise his judgment with respect to the person 
 
 (a) 2 T. R. 4S1. et vide 8 T. R. ?,CO fast. (i) 1 T. R- X41. 
 
 (0 Br.c. Abr. tit. " Condition." (O.) («') 1 Mauk anJ Selw. T 
 
 (e) Bac, Abr, tit, " Cevtnant."' (B.) end 142, 3>
 
 Sect. II.] Of express Covenants. 261 
 
 to whom he trusts the management of his estate; a covenant, therefore, 
 not to assign is legal, and covenants to that effect are frequently inserted 
 in leases (a). 
 
 But under an agreement for a lease the lessor is not without express 
 stipulation entitled to a covenant restraining alienation without licence-, 
 as a proper and usual covenant (£). 
 
 The power of assignment is incident to the estate of a lessee without 
 the word "assigns" unless expressly restrained; and such restraints on 
 alienation are construed with jealousy (c). 
 
 If a lessee for years covenant, that if he, his executors, or assigns 
 alien, it shall be lawful for the lessor to re-enter : it seems this is a 
 good condition, and not a covenant only ; and the lessor may take it as 
 either a covenant or a condition, but not as both (d), 
 
 A clause in the lease in these words, Provided always and it is fur- 
 ther covenanted, that the lessee shall not assign his term to any other, 
 except to the lessor, paying as much as another, and that if the lessor 
 will not have it, then the lessee may alien it to none except his mother 
 or his son, was held to be a good condition ro defeat the estate, for 
 " provided always" implies a condition, if there be not words subse- 
 quent which may peradventure change it into a covenant; as where 
 there is another penalty annexed to it for non- performance (c). 
 
 If a lease contain a condition that the lessee shall not assign with- 
 out licence, and the lessor, after notice of the assignment without 
 licence, accept of rent from the assignee, he dispenses with the 
 condition (/')-. 
 
 For it is to be observed, that where the lease is ipso fact'; void by 
 the condition, no acceptance of rent after can make it have a con- 
 tinuance (g) j otherwise it is of a lease voidable by entry ; because 
 the acceptance of rent cannot make a new lease and the old one was 
 determined ; but the acceptance of rent in the latter case is a sufficient 
 declaration that it is the lessor's will to continue the lease, for he is not 
 entitled to the rent but by the lease (h). B-ut the acceptance of rent 
 after a condition broken, without notice of the breach, is not a conti- 
 nuancy of the estate ; except the condirion be of such a nature as to 
 be equally within the conusance of both lessor and lessee (f). 
 
 If a man lease a house and land, upon condition that the lessee 
 shall not parcel out the land, nor any part thereof from the house, 
 and afterwards the lessee leases the house and part of the land to one, 
 and leases the residue of the land to another •, this fe a breach of the 
 condition; for by the word " parcelling" is intended a division or 
 
 («) 2 T. R. 138. (J) 15 Ves. J. 25S. (0 15 Vei. 264-5. 
 
 (d) Shep. Touch. 124. and n. 2. (<?) Cro. Eliz. 242. 
 
 (/) Cro. Car. 511. Cro. Eliz. 572. 2 T. R. 4:5. (g) Co. Lit. 215. n. Willes, i6?> 
 
 (£) Doug. 50. Ccvp. 482. (ij Cro. Eliz. 55$. 2 T. R. 4*5«
 
 £62 , Of express Covenants. [Chap. X, 
 
 separation of the land from the house : it was therefore adjudged that 
 the first grant was a breach of the condition, because every division 
 and severance of the house and land is within the words and intent of 
 the condition (a). But if the lessor afterwards accept of rent, it will 
 bar his entry for the condition broken. For where a lease for years 
 was made, upon condition 10 be void if the lessee assigned over the 
 term ; he afterwards made an assignment, and the lessor, knowing it, 
 accepted the rent : adjudged, that this would not make the lease good, 
 because it was absolutely void before the acceptance (i>). 
 
 Where the covenant was not to assign the whole or any part of the 
 lands demised without the lessor's consent, and the lessor entered into 
 part himself, and then the lessee assigned ; this was held to be a breach 
 oi the covenant, notwithstanding the lessor's entry (f). 
 
 If the lessee reserves the rent to himself on granting over, it is an 
 under-lease and not an assignment, though he parts with the whole 
 term; for what cannot be supported as an assignment, shall be good 
 as an under-lease against the party granting it (d). 
 
 So where the covenant was " That the lessee should not assign over 
 " his term without the lessor's consent first had in writing," and the 
 lessee devised the term without any such consent obtained; this 
 was held not to be such an assignment as was a breach of the 
 covenant (e). 
 
 But whether it would be so held at this day, may well be 
 doubted (f). 
 
 If a lessee for years covenant not to alien without licence of the 
 lessor, under penalty of forfeiting the lease, and he afterwards aliens 
 without licence, equity will not relieve him (g). 
 
 But if a condition be to do such an act, and the lessor dis- 
 charges him of part, the whole condition is destroyed ; as if a condi- 
 tion be to plough his land, or build his house, and he discharges him 
 of part (/■>). 
 
 So where the lessor license his lessee to alien part, he may alien 
 the residue without licence ; for the lessor cannot enter, because if he 
 should enter for the condition, he should enter upon the entire, as it 
 was limited; and if he should enter upon the entire, he would destroy 
 that which he had licensed to be aliened, which he cannot do (z). 
 
 Indeed, on a proviso that the lessee and his assigns shall not alien 
 without licence, if the lessor give licence, the condition is entirely de- 
 stroyed, and the assignee may afterwards assign or demise the whole 
 or any part of the term without licence. But it is otherwise 
 
 (a) Bac. Abr. tit. " Conditions." (O.) (&) Cro. Eliz. .528. i Salk. 4. (r) Style, 265. 
 (J) 1 Str. 405. Sed-jide Doug. 187. (e) Style, 485. (/) Cro. Eliz. 8x6. 2 T. R. 4:5. 
 
 (jr) 9 Mod. 112. (h) Com. Dig. tit. " Condition." (Q.) 1 Roll. 471. 1. 47. 52. 
 
 (0 Ibid. 1. 4;. Cro, Eliz. 8i6. Duropor's case. 460. 12 Ves. i')u
 
 Sect. II.] Of express Covenants. 265 
 
 of a devise of the term, for that would have been a breach of the 
 condition («). 
 
 So, if a lease be upon condition, that the lessee or his assigns 
 shall not alien, unless to his brother : if the lessee assigns his 
 term to his brother, it seems he shall not be restrained by the con- 
 dition (b). 
 
 A proviso in a lease for re-entry upon assignment by the lessee, his 
 executors, administrators, or assigns without licence ceases by assign- 
 ment with licence though to a particular individual (c). 
 
 But if a lease be upon condition to husband and wife, that if it 
 comes to any other hand than their own, and their issues, the lessor 
 shall re-enter if the husband dies, and the wife takes another husband, 
 the lessor shall re-enter UP). 
 
 So, also, if the lease contain a proviso, that the lessee, his ex- 
 ecutors, or administrators, shall not set, let, or assign over the whole 
 or any part of the demised premises without licence in writing on 
 pain of forfeiting the lease, the administratrix of the lessee cannot 
 under-let without incurring a forfeiture. A parol licence to let part 
 of the premises does not discharge the lessee from the restriction of 
 such a proviso : for as the party is charged by a sufficient writ- 
 ing, so must he be discharged by a sufficient writing, or something 
 of as high an authority, agreeable to the maxim unum quodque di.solviiur 
 ■to ligamine quo ligatur {e"). 
 
 If a lease be made to a man and his assigns for twenty-one years 
 provided that he shall not assign, the proviso being repugnant to the 
 premises is void ; but it would have been good, if the word u assigns" 
 had been omitted (/). 
 
 A proviso against assignment without licence in a lease to a lessee, 
 his executors, administrators, and assigns, is not repugnant, the con- 
 struction being such assigns as he may lawfully have, viz by licence, 
 or by law, as assignees in bankruptcy (;'). 
 
 "Where a lessee covenanted that neither he nor his executors or ad- 
 ministrators would assign the term without the lessor's consent, with 
 a power of re-entry to the lessor in such case, and that the lease 
 should be void ; the lessee died, his executor entered and afterwards 
 became a bankrupt, and the lease was assigned over by the assignees 
 under his commission for a valuable consideration to the plaintiff", v/ho 
 brought his bill in equity to be relieved against the proviso, and to 
 stay proceedings in an ejectment brought against him upon it : Lord 
 Macclesfield held clearly that the assignment, being done by the 
 authority of a statute, would supersede any private agreement between 
 
 {a) Com. Dig. tit. " Condition." (Q.) i Roil. Ab. 471. Cm. Eliz. 816. Dun j»or'; c ise, 4^0. 
 !2Ves.i9i. (£>) Com. Dig. tit. "Condition." (F.) 1 Roll. 422. 1. 10. (cj 14 Ves. 173. 
 00 Com.Blg. ut ants (0.) (OaT.Px.4aj. (/)Shep. Touch. 123. a. 1. (g) .2 Vcs. 504.
 
 264 Of express Covenants. [Chap. X. 
 
 the parties, and that the assignment by the assignees was no breach of 
 the condition (a). 
 
 But though bankruptcy supersedes an agreement not to assign -with- 
 out licence, that has been held only in favour of general creditors •, and 
 where there is no actual lease, but.it rests upon agreement to grant a 
 lease, an individual cannot have a specific performance in opposition to 
 such proviso, and it is very doubtful whether the general assignees 
 could obtain it, even if there was no such provision (£). 
 
 Although conditions in restraint of alienation are legal and usual, 
 courts of law have always held a strict hand over such methods of 
 defeating leases, and have countenanced very easy modes of putting an 
 end to them (c). 
 
 Therefore where the words of the condition were " That the 
 " lessee, his executors or administrators, shall not at any time or 
 " times during this demise, assign, transfer, or set over, or other- 
 " wise do or put away this present indenture of demise, or the pre- 
 " mises hereby demised, or any part thereof;" it was held that this 
 condition was not broken by an under-lease ; for that " assign, 
 " transfer, and set over," were mere words of assignment, where- 
 as the present was an under-lease, [the words, " demise over" were 
 omitted in the proviso •,] and that devising a term, [see Bac. Abr. 
 tit. Conditions <, O.] or the lessee becoming a bankrupt, or dying in- 
 testate, would be " a doing and putting away the lease j" so being 
 in debt, by confessing a judgment and having the term taken in 
 execution, was the like ; but that none of these amounted to a breach 
 of this condition (d). 
 
 So, upon the principle of one of the grounds of adjudication in the 
 preceding case, it has been held, that a lease taken in execution on a 
 warrant of attorney to confess a judgment given by the lessee is not a 
 forfeiture of the lease, under a covenant by such lessee " not to let, 
 set, assign, transfer, make over, barter, exchange, or otherwise part 
 with the indenture, tsfc.f for a distinction is to be taken between those 
 acts which a party does voluntarily, and those that pass in invitum: of 
 which latter class is the one in question (e). 
 
 But where it appears that the warrant was executed for the express 
 purpose of getting possession of the lease, the maxim applies, that 
 that which cannot be done per directum, shall not be done per obli- 
 quum: in such case, therefore, it being in fraud of the covenant, the 
 landlord may, under a clause of re-entry for breach of the condition, 
 recover the premises in an action of ejectment from a purchaser under 
 the sheriff's sale (/). 
 
 («) »T. R. 136. (*) 12 Ves. 504. 
 
 (0 2 Bl. Rep. 767. 3 Wils. Z25. s. c. (d) Ibid. 
 
 («) 8 T. R. 61. (/) 8 T. R. 30c,
 
 Sect. II.] Of express Covenants. 265 
 
 Where one leased for twenty-one years if the tenant, his executors, 
 &c. should so continue to inhabit and dwell in the farm-house, and 
 actually occupy the land, &c. and not let or assign over the lease : 
 held that the tenant having become bankrupt, and his assignees hav- 
 ing possessed themselves of the premises and sold the lease, and the 
 bankrupt being out of the actual possession and occupation of the farm, 
 the lessor might maintain an ejectment without previous entry (a). 
 
 An assignment by operation of law is not, it should seem, a breach 
 of a general covenant of this nature: the landlord, therefore, does 
 well to protect himself as far as he can by the particularity of the words 
 contained in his covenant (£). 
 
 Thus a proviso in a lease that the landlord shall re-enter on the 
 tenant's committing an act of bankruptcy whereon a commission 
 shall issue, is good ; for it is a proviso not contrary to any express 
 law, or to reason, or public policy ; and the landlord in such case 
 parts with his term on account of his personal confidence in his 
 tenant, which is manifestly the case in all leases where clauses against 
 alienation are inserted (c). 
 
 Where there is a right of entry given for assigning or under-letting, 
 if a person is found in the premises, appearing as the tenant, it is 
 prima facie evidence of an under-letting sufficient to call upon the 
 defendant to shew in what character such person was in possession, as 
 tenant, or as servant to the lessee (d). 
 
 Covenant to insure. — A covenant in the lease of a house, to insure 
 during the term to a given amount in some sufficient insurance office, 
 is not void for uncertainty, but means that the premises shall be 
 insured against fire in some office where such insurances are usually 
 effected (e). 
 
 Construction of covenants, isfc. — A covenant in an indenture of lease 
 for twenty-one years from Michaelmas, that the tenant should not, • 
 during the term, cut down any of the coppice of less than ten years' 
 growth, or at any unseasonable time of the year: but at the end of the 
 term the landlord agreed to pay to the tenant, the value of all such 
 growth of coppice as should be then standing and growing; was held 
 according to its grammatical construction (uncontrolled by any other 
 part of the instrument shewing a different intent) to bind the land- 
 lord, to whom the words of the covenant were to be attributed, to 
 pay the tenant for the value of all the coppice of less than ten years' 
 growth left standing on the demised premises at the end of the term; 
 though no special consideration appeared on the face of the deed for 
 the landlord's agreeing to make a compensation to the tenant for the 
 value of such part of the coppice, which the tenant was not entitled 
 
 (a) 8 East, 185. (J) jT. R. 134. (c) Ibid. 138, 140. 
 
 (J) 5 Esp. 4. ( e ) 3 Campb. 134.
 
 26*6' Of express Covenant*. [Chap. X. 
 
 to cut. One Judge, who dissented, thought that the words " such 
 growth" referred to a growth of ten years, though inaccurately ex- 
 pressed; founded on a strong presumption of the meaning of the 
 parties, as gathered from the restriction on the tenant not to cut 
 coppice of less than ten years' growth; and to the period of the year 
 when the tenancy would end ; which was before the cutting season, 
 but after a portion of the coppice would be of ten years' growth (a). 
 
 The assignor in a deed of assignment of a lease, after reciting the 
 eriginal lease granted to another for the term of ten years, which by 
 mesne assignments had vested in him, and that the plaintiff had con- 
 tracted for the absolute purchase of the premises; bargained, sold, 
 assigned, transferred, and set over the same to the plaintiff, for and 
 during all the rest, &c. of the said term of ten years, in as ample 
 manner as the assignor might have held the same, subject to the pay- 
 ment of rent and performance of covenants ; and then covenanted that 
 it was a good and subsisting lease, valid in law, in and for the said 
 premises thereby assigned, and not forfeited, &.c. or otherwise deter- 
 mined, or become void or voidable. It was held that the generality of 
 this covenant for title, which was supported by recital of the bargain 
 for an absolute term of ten years, was not restrained by other cove- 
 nants which went only to provide for or against the acts of the 
 assignor himself or those who claimed under him; such as, ist, a 
 covenant against incumbrances, except an under-lease of part by the 
 assignor for three years; 2dly, for quiet enjoyment: 3dly, for further 
 assurance : and therefore where it appeared that this original lease was 
 for ten years, determinable on a life in being, which dropped before 
 the ten years expired, though not till after the covenant of the assignor, 
 it was held that the assignee might assign a breach upon the absolute 
 covenant for title (I?). 
 
 In the execution of an agreement for a lease with proper covenants, 
 the party has a right to such covenants as arise out of the general 
 well known practice as to such leases ; and not contradicting the inci- 
 dents of the estate belonging to a lessee ; one of which is the right to 
 have the estate without restraint, beyond what is imposed upon it by 
 operation of law ; unless there is an express covenant for more. — 
 Where there is an agreement of this kind, the law implies what are 
 proper covenants, as connected with the character and title of the 
 lessor (r). 
 
 Where a man entitled to an estate of inheritance agrees to make 
 leases with a covenant for perpetual renewal, each lease to contain the 
 same covenant for ever, the agreement must be carried into execu- 
 tion (</).— But an agreement for a lease with a covenant for perpetual 
 
 («) 13 East, 80. (l>) is East, 530. (0 Ibid, 
 
 {/) 16 Ves. J. 84. 
 7
 
 Sect. II. J Of express Covenants. 267 
 
 renewal at a fixed rent, of church lands, renewable upon fines con- 
 tinually increasing, was decreed to be delivered up on the ground of 
 surprise, neither party understanding the effect of it (a). 
 
 Condition to re-enter on non-payment of Rent. — A condition that, if the 
 rent be behind by the space of any given time after the day prescribed 
 for payment, the lessor shall re-enter, is good ; and such condition is 
 not saved by the attendance of the lessee with the rent merely on the 
 first day of payment, for if the lessor be not then there to receive it, 
 the lessee must equally attend on the last day(£). 
 
 If a lease be made rendering rent, on condition, that if the rent be 
 not paid within twenty days, the lessor shall re-enter, and the rent 
 is not paid ; in this case the condition is broken (c), but the lessor 
 cannot enter until he has made a legal demand ; and if he die before 
 lie do it, his heir shall never take advantage of that breach, but is dis- 
 charged for ever (rf). 
 
 Nobody can have the re-entry but he who should have the rent were 
 there no lease; and so is the very text of Littleton^ Co. Lit 213. s. 
 346, 347. by construction therefore it must be so. As to demand, a 
 clause of re-entry is required (in the principal case, which was a lease 
 under a power) as a security for rent ; demand is requisite both by 
 common law and statute ; a clause of re-entry will never be allowed to 
 operate further than as a security for rent (e). 
 
 As to demand of rent before re-entering for non-payment, on an 
 objection being taken for the omission thereof, (respecting which it 
 became unnecessary for the court to give any opinion) these authori- 
 ties were mentioned (f), : Co. Lit. 201. b. 1. Rol. Abr. 459. pi. 
 I, 2, 6, 5 Co. 40. 7 Co. 28 b. Freem. 242. 2 Ld. Raym. 750. and 
 I Sa/k, 259. 
 
 A material difference subsists between a remedy by re-entry and a 
 remedy by distress, for the non-payment of rent. Where the remedy 
 is by way of re-entry for non-payment, an actual demand must be 
 made previous to the entry, otherwise it is tortious, and trespass 
 would lie, because a condition of re-entry is in derogation of the 
 grant, and the estate at law, being once defeated, is not to be re- 
 stored by any subsequent payment: but a notice of distress is of itself 
 a demand (g). 
 
 But where the power of re-entry is given to the lessor for non-pay- 
 ment without any farther demand, there it see.as that the lessee has 
 undertaken to pay, it, whether it be demanded or not, and no pre- 
 sumption in his favour can arise in this case, because, by dispensing 
 with the demand, he has put himself under the necessity of making 
 an actual proof that he was ready to tender and pay the rent. It 
 
 (a) 16 Ves. J. 72. (£) Bac. on Leases, 220. {c) Ibid. (d) 6 T. R. 458. 
 U) Loffc's R. 319. (J) 6 T. R. 459- (s) Shcp. Touch. 148. n. i>
 
 268 Of express Covenants. [Chap. X. 
 
 would, however, be adviseable for the lessor even in this case to 
 demand the rent, as the payment should be on the land, provided no 
 place is fixed for the purpose, and a tenant may be prepared to 
 prove that he was on the land the day the rent became due, ready 
 to pay {a). 
 
 Also as to the necessity of a demand of the rent, there is a dif- 
 ference between a condition and a limitation •, for instance, if a 
 tenant for life, (as the case was by marriage settlement, with 
 power to make leases for twenty-one years, so long as the lessee, 
 his executors, or assigns shall duly pay the rent reserved) makes a 
 lease pursuant to the power, the tenant is at his peril obliged to pay 
 the rent without any demand of the lessor ; because the estate is 
 limited to continue only so long as the rent is paid, and therefore, 
 for the non-performance according to the limitation, the estate must 
 determine : a demand however had better be made, for the reason 
 before stated (b). 
 
 If a place be limited and agreed on by the parties where the condi- 
 tion is to be performed, the party who is to perform it is not obliged 
 to seek the party to whom it is payable elsewhere ; nor is he to 
 whom it is to be performed obliged to accept of the performance 
 elsewhere ; but he may accept it at another place, and it will be 
 good(c). 
 
 Rent reserved payable yearly is to be paid on the land ; because the 
 land is the debtor, and that is the place of demand appointed by law. 
 So if a man leases rendering rent, and the lessee binds himself in a 
 sum to perform the covenants ; this does not alter the place of payment 
 of the rent ; for it may be tendered on the land without seeking the 
 obligee : except where the condition is for the performance of homage 
 or other corporeal service to the person of the lord (d). 
 
 The lessee of the King must pay his rent, without demand, at the 
 Exchequer, wherever it may be ; but if the King grant the land in re- 
 version, the rent must be demanded on the land, before the patentee 
 can enter as for a forfeiture on non-payment (e). 
 
 As to the landlord's right of re-entry being waived, if a lessor re- 
 ceive rent-arrear by an act affirming the lessee's possession, it bars his 
 right of re-entry for non-payment on the day it was due (f). 
 
 Thus, in an action of ejectment, the case was, a prebend let land 
 for years rendering rent, and a re-entry for non-payment. The rent 
 was demanded and was not paid, and two days afterwards the lessor 
 received the rent of him and made him an acquittance by the name of 
 his fermor. Whether this receipt barred him or not of his re-entry ? 
 was the question. It was clearly resolved that the bare receipt of the 
 
 (a) Bac. Abr. tit. « Conditions." (O. 2.) (/>) Ibid. (0 Ibid. (O. 4.) 
 
 (0 Ibid. Co. Lit. 201. b. (e) Cro. Eliz. 462. (/) Ibid. 3.
 
 Sect. II.] Of express Covenants. gfty 
 
 rent after the day was no bar, for it was a duty due to him : but a dis- 
 tress for the rent, or the receipt of rent due at another day, was a bar, 
 for those acts affirm the lessee to have lawful possession : so if he makes 
 him an acquittance with a recital that he is his tenant. In the principal 
 case, the lessor calling him his fermor, was a full declaration of his 
 meaning to continue him his tenant, and it was adjudged that the 
 entry was not lawful (a). 
 
 So, where a lease was made to one for life rendering rent at Michael- 
 mas, with a clause of re-entry for non-payment, the rent was in arrear, 
 and afterwards the lessor brought an action for the rent : adjudged, that 
 notwithstanding this action, he (the lessor) might still enter for a 
 breach of the condition : for the action for the rent did not affirm the 
 lease, because it shall be intended to be brought as for a duty due upon 
 a contract ; but if he had distrained for the rent not being paid at the 
 day, then he can never afterwards enter for a breach of the condition, 
 because the distress affirms the continuance of the lease {b). 
 
 So, a gift was made to the husband and wife, and to the heirs of 
 their bodies ; they afterwards made a lease of the lands, reserving rent 
 on such a day, with a clause of re-entry : then the husband died, and 
 the rent being in arrear, the issue in tail accepted it ; adjudged that this 
 was no affirmance of the lease as to himself, because the rent was not 
 due to him whilst his mother was living, but it had been otherwise, if 
 he had accepted it after her death (r). 
 
 It is indeed a rule, that the mere acceptance of rent shall not operate 
 as a waiver of a forfeiture, or as a confirmation of the tenancy, unless 
 the landlord had notice that a forfeiture was incurred at the time or did 
 some other act indicating his intention to continue the lessee in his 
 term (d) : and such acceptance is matter of evidence only as to the 
 quo ammo, to be left to the jury under the circumstances of the 
 case (e). 
 
 Touching conditions of re-entry for non-payment of rent or the 
 breach of any other covenant, the law upon that subject is so well di- 
 gested in Mr. Serjeant Williams's excellent edition of Saunders's Reports, 
 that his note containing it may well be here introduced. 
 
 Where a condition of re-entry is reserved for non-payment of rent, 
 several things are required by the common law to be previously done by 
 the reversioner, to entitle him to re-enter {/)• I. A demand must be 
 made of the rent : [and where there are several demises at distinct rents, 
 separate demands must be made for each, though they be both reserved 
 in the same lease. Faugh. 71.] 2. The demand must be of the pre- 
 cise rent due ; for if a penny more or less be demanded, it will be ilk 
 
 (a) Cro. Eliz. 462, (A) 3 Salk. 3. (c) Ibid- (</) a T. R. 431. 
 
 (?) Cowp. 243, (/) 1 Saund. 287. n. 16.
 
 270 Of express Covenants. [Chap. %. 
 
 [And what remains payable, after the land-tax, or a ground-rent de- 
 manded of and paid by the tenant, or any other part of the rent agreed 
 upon, has been lawfully deducted by the tenant, will of course consti- 
 tute the rent due, 4 T. R. 511.] 3. It must be made precisely upon 
 the day on which the rent is due and payable by the lease to save the 
 forfeiture : as where the proviso is, " that if the rent shall be behind 
 and unpaid by the space of thirty or any other number of days, after the 
 days of payment, it shall be lawful for the lessor to re-enter," a de- 
 mand must be made on the thirtieth or other last day. 4. It must be 
 made a convenient time before sun-set. 5, It must be made upon the 
 land, and at the most notorious place of it. Therefore if there be a 
 dwelling-house upon the land, the demand must be at the front or fore- 
 door ; though it is not necessary to enter the house, notwithstanding the 
 door be open. But if the tenant meet the lessor either on or off the 
 land at any time of the last day of payment, and tender the rent, it is 
 sufficient to save a forfeiture, for the law leans against forfeitures. 6. 
 Unless a place be appointed where the rent is payable ; in which case 
 a demand must be made at such place- 7. A demand of rent must be 
 made in fact, and so averred in pleading, although there should be no 
 person on the land ready to pay it. 8- If after these requisites have 
 been performed by the reversioner, the tenant neglects or refuses to pay 
 the rent, then the reversioner is entitled to re-enter : [for if the lessor 
 or his sufficient attorney remain upon the land the last day on which the 
 rent ought to be paid, until it be so dark that he cannot see to tell the 
 money, and the money thus demanded be not paid, this is a denial in 
 law, though there be no words of denial ; upon which a re-entry may 
 be made. 1 Inst. 201. 4 Rep. 73,] However, it is to be observed, 
 that no actual entry is necessary to be made by him into the land, but it 
 13 sufficient to bring an ejectment only : though it was held otherwise 
 until Lord Hale's time, when it was decided that the entry confessed by 
 the defendant in the ejectment, was sufficient without any actual entry; 
 which decision has been adhered to ever since. — It follows, as a neces- 
 sary inference from what has been premised, that a demand made after 
 or before the last day on which the lessee has to pay the rent, in order 
 to prevent a forfeiture, or off the land, will not be sufficient to defeat 
 the estate. But now to obviate these niceties in some cases, the stat. 
 4 G. 2. c. 28. (of which hereafter,) prescribes a particular mode of pro- 
 ceeding in cases of premises left vacant and a half year's rent being 
 due, but no sufficient distress being thereon (a). 
 
 The same requisites which are deemed necessary in order to entitle 
 the lessor to re-enter, are also necessary in order to entitle him to re- 
 cover a fiomine poena , as it is called, which is not considered so much a^- 
 
 (a) i Saund. 287. n. 16.
 
 Sect. II.] Of express Covenants. 271 
 
 a remedy for the recovery of the rent, as a penalty to oblige the tenant 
 to a punctual payment of it ; and being so immediately connected with 
 the subject of this chapter, we have thought proper to notice it in this 
 part of the work. A nomine poena being so considered, therefore where 
 a proviso is, that if the rent be in arrear for the space of thirty days, 
 next after the days of payment, the lessee shall forfeit ten shillings a 
 day by way of penalty, in that case in order to entitle the lessor to re- 
 cover the penalty, there must be a demand of the rent in like manner 
 in every respect, as we have before seen is required in cases of re-entry 
 for non-payment of rent. — A distinction is taken between a power to 
 re-enter, or a nomine poena, and a power of distrain : as where a rent 
 is granted payable, &fc. and in default of payment if it be demanded, 
 the grantee may distrain : in this case, it is held not to be necessary to 
 make a demand on the day, as in the case of re-entry, or a nomine 
 poena, but he may demand the rent at any time after (a). 
 
 In cases of conditions of re-entry there is a difference between leases 
 for lives and leases for years ; and with respect to the latter, there is 
 also a difference between them, which arises entirely from the manner in 
 which the condition of re*entry is expressed in the lease (b). 
 
 As to leases for lives, it is held that if the tenant neglect or refuse to 
 pay his rent after a regular demand, or is guilty of any other breach of 
 the condition of re-entry, the lease is only voidable, and therefore not 
 determined until the lessor re-enters, that is, brings an ejectment for 
 the forfeiture : and this, though the clause of the condition should be, 
 that for non-payment of the rent, or the like, the lease shall cease and 
 be void (c) : for it is a rule, that where an estate commences by livery, 
 it cannot be determined before entry ; therefore if the lessor, after no- 
 tice of the forfeiture, which is a material and issuable fact, accept rent 
 which accrued due after, or does any other act which amounts to a 
 dispensation of the forfeiture (as bringing covenant for half a year's 
 rent, subsequent to the time of the demise laid in an ejectment for 
 the forfeiture :) the lease which was before voidable, is thereby af- 
 firmed {d). 
 
 But if there be a lease for years, with a condition, that for non-pay- 
 ment of the rent or the like, the lease shall be null and void, in such 
 case if the lessor makes a legal demand of the rent, and the lessee neg- 
 lects or refuses to pay, or if the lessee is guilty of any other breach of 
 the condition of re-entry, the lease is absolutely determined, and can- 
 not be set up again by acceptance of rent due after the breach of the 
 condition, or by any other act. — Yet if in such lease the clause be, that 
 for non-payment of the rent it should be lawful for the lessor to re-enter, 
 the lea:e is only voidable, and may be affirmed by acceptance of rent 
 
 (V I Sauad, 18-, r.. 16. (b) Hid. 0) Ibid, (J) Bull. N, P. 06.
 
 272 Of express Covenants. [Chap. X. 
 
 accrued after, or other act, if the vssor had notice of the breach of the 
 condition at the time («}. 
 
 Regularly, when any man will take advantage of a condition, if he 
 may enter, he must enter, and when he cannot enter he must make a 
 claim ; and the reason is, that a freehold and inheritance shall not cease 
 without entry or claim (£), and also the grantor may waive the condi- 
 tion at his pleasure. — It is also to be observed that an entry upon an 
 estate generally, is an entry for the whole ; and if it be for less, it 
 should be so defined at the time (c). 
 
 It is laid down for a rule, generally, that he who enters for a condi- 
 tion broken shall be seised in his first estate, or of that estate which he 
 had at the time of the estate made upon condition, and therefore shall 
 avoid all mesne charges and incumbrances (d). 
 
 Generally as to covenants, touching the operation of an Act of Par- 
 liament in respect to them, where the question is, whether a covenant 
 be repealed by an Act of Parliament, this is the difference ; viz. where 
 one covenants not to do an act or thing which it was lawful to do, 
 and an Act of Parliament comes afterwards and compels him to do it, 
 the statute repeals the covenant : so, if one covenants to do a thing 
 which is lawful, and an Act of Parliament comes in and hinders him 
 from doing it, the covenant is repealed ; but if a man covenants not to 
 do a thing which at the time was unlawful, and an Act comes and 
 makes it lawful to do it, such Act of Parliament does not repeal the 
 covenant (e). 
 
 Though all the rent of the lessee is assigned by Act of Parliament, if 
 there are no words of discharge the lessee's executor is still liable to 
 covenant for the rent (f). 
 
 Where by an order, confirmed by Act of Parliament, that an inden- 
 ture of lease, upon which rent was reserved, should be vacated and 
 cancelled, and that a stranger should enter into the demised lands, and 
 receive the profits ; the same rent m value, granted by the lessee for the 
 better securing of the rent reserved, is not discharged, though the in- 
 tention appears that they should be bur one rent paid (g). 
 
 It has however been held that if a man covenant to do a thing, and it 
 is afterwards prohibited, yet the covenant is binding ; for that a penal 
 statute cannot have a retrospective operation (Z>). 
 
 There is a difference between covenants in general and covenants, 
 secured by a penalty or forfeiture (*')• \n the latter case, the obligee 
 has his election ; he may either bring an action of debt for the penalty, 
 
 {a) Saund ut ante. (b) Co. Lit. 2/8. (<0 3 T. R. 170. 
 
 id) Co. Lit. 202. Bac. Air. tit. " Conditions." (O. 4.) 
 
 (<0 1 Salk. 198. via: pes: 257. [/) Bac. br. tit. " Covenant." T. 4. ''•; 
 
 {*) 1 Saund. 20c, .0 {b) 3 Mod. 39. 
 
 (il 4 Burr. 2228 L ;3 '01. I Saund. 58. n, I. 
 
 3
 
 Sect. II.] Of express Coir?ianls. 073 
 
 after the recovery of which he cannot resoft to the covenant, because 
 the penalty is to go in satisfaction for the whole : or if he does not 
 choose to go for the penalty, he may proceed upon the covenant, and 
 recover more or less than the penalty, toties qaoties (a). 
 
 Upon this distinction they proceed in courts of equity ; they will re- 
 lieve against a penalty, upon a compensation ; but where the covenant 
 is " to pay a particular liquidated sum," a court of equity cannot make 
 a new covenant for a man, nor is there any room for compensation or 
 relief {b). 
 
 Thus in leases containing a covenant against ploughing up meadow; 
 if the covenant be " not to plough," and there be a penalty, a court of 
 equity will relieve against the penalty ; and will even go further than 
 that to preserve the substance of the agreement (r). But if it is worded 
 " to pay 5/. an acre for every acre ploughed up," there is no alternative, 
 no room for any relief against it, no compensation ; it is the substance 
 of the agreement, it is the particular liquidated sum fixed and agreed 
 upon between the parties, and is therefore the proper quantum of the 
 damages (d). 
 
 Indeed, nothing can be more obvious, than that a person may set an. 
 extraordinary value upon a particular piece of land or wood, on account 
 of the amusement which it may afford him. In this country a man 
 has a right to secure to himself a property in his amusements : and if 
 he choose to stipulate for 5/. or 50/, additional rent upon every acre of 
 furze broken up, or for any given sum of money upon every load of 
 wood cut and stubbed up, there seems nothing irrational in such a con- 
 tract (e). 
 
 The court of chancery will relieve against forfeiture under a covenant 
 for non-payment of rent : but not where the recovery in ejectment was 
 also upon breach of other covenants (/). 
 
 Equity will likewise relieve against a forfeiture incurred by breach of 
 a covenant to lay out a specific sum in repairs in a given time (g). 
 
 Where articles contain covenants for the performance of several 
 things, and then one large sum is stated at the end to be paid upon 
 breach of performance, that must be considered as a penalty. But 
 where it is agreed that if H a party do sucli a particular thing such a sum 
 shall be paid by him, there the sum stated maybe treated as liquidated 
 damages. 
 
 It is therefore clear, that where the precise sum is not the essence 
 of the agreement, the quantum of the damages may be assessed by the 
 jury : but where the precise sum is fixed and agreed upon between 
 
 (a) 2 Bl. R. 1 1 90. 6 T. R. 303. (i) 9 Mod. 113,4 Burr. aaz8. 
 
 (<r) Ibid. (</) j Atk. 396. ante, 2 Bio. P. C. 43$. (0 * Boi - & p "l- li~- 
 
 ' f) ro Ves.67. it Ves. 4';. C?) izVes. 283. but s?e 16 V;-. 4 c6, 
 
 T
 
 i274 Of express Covenants. [Chap. X. 
 
 the parties, that very sum is the ascertained damage and the jury are 
 confined to it (a). 
 
 Thus, where there is a clause of nomine poena in a lease to a tenant 
 to prevent his breaking up and ploughing old pasture ground, the in- 
 tention thereof being to give the landlord some compensation for the 
 damage he has sustained from the nature of his land being altered, the 
 whole nomine poena shall be paid, and not at the rate of 5/. per cent. 
 only for the rent reserved (b). 
 
 "Where a conveyance of land is void, so as no estate passes, all de- 
 pendent covenants are void also; otherwise of covenants inde- 
 pendent {c). 
 
 For a lease must either be good or bad in its creation. Therefore, 
 where it was expressly found, that a covenant in a lease, under a 
 power requiring the insertion of " usual covenants," was unusual ; 
 the question was, Whether that circumstance avoided the lease itself, 
 or only that particular covenant : and it was observed that the party 
 had no power to lease at all, unless in the form prescribed; which be- 
 came a condition precedent. It being manifest that the lease was not 
 made pursuant to the power, it was void in his creation, and the re- 
 versioner had a right to take advantage (J). 
 
 If tenant for a term of years lease for a less term and assign his re- 
 version, and the assignee take a conveyance of the fee, by which his 
 former reversionary interest is merged, the covenants incident to that 
 reversionary interest are thereby extinguished (?). 
 
 0) 4 Bur. 222$. (A) 2 Atk. 289. (c) 1 Salk. 199. (J) iT. R. 709. 
 (e) 3 T. R. 39i-
 
 [ 275 J 
 
 CHAPTER XI. 
 
 Of Assignments and Under- Leases; 
 
 And in what cases Assignees are bound by Covenants, or may make ad- 
 vantage of them ; whether the Assignment or Under-Lease be absolute, 
 cr by way of Mortgage. 
 
 A N assignment is the transferring and setting over to another some 
 -£*■ right, title, or interest in things, in which a third person, not a 
 party to the assignment, has a concern and interest (a). 
 
 Every one therefore who has an estate or interest in lands and tene- 
 ments, may assign it (b) : as tenant for life, for years, ifc. [But a te- 
 nant at will, or sufferance, cannot assign, it is conceived, for reasons 
 before mentioned [c).~] 
 
 So the interest or estate that a man hath by extent, is assignable from 
 man to man at pleasure (d). So, an annuity may be demised by way of 
 assignment : and an office in certain cases may be assigned (<?). And 
 every one who has a present and certain estate or interest in things 
 which lie in grant, may assign; as in a rent, common, advowson, 
 Sec. (f)- Though the interest be future ; As a term for years to com- 
 mence in futuro ; for the interest is vested in prasenti, though it does 
 not take effect till a future time (g). 
 
 So a possibility of a term is assignable in equity for a good considera- 
 tion, though not so at law : and though the assignment of a contingent 
 interest, which a husband has in right of his wife, or the possibility of 
 a term, is not strictly good by way of assignment, yet it will operate as 
 an agreement where there is a valuable consideration ; but it must be 
 an assignment of that particular thing, and not rest only in intention 
 and construction of words in a covenant (h). 
 
 So, a lessee for years of the crown may assign his term, though he 
 is ousted by a stranger (i) : for the reversion being in the crown he can- 
 not be out of possession but at his pleasure ; but ordinarily a lessee 
 cannot assign his term if an actual ouster had taken place, till he re- 
 enter (k). 
 
 A power, where it is coupled with an interest, may be assigned, 
 
 (j) Bac, Abr. tit. " Assignment." (£) Com. Dig. tit." Assignment." (A.) 
 
 (c) Ante. p. 82, 236. (d) Shep. Touch. 242. (f) Ante. 148, 150. 
 
 (/) Com. Dig. tit ante, (g) Ibid, (b) 9 Mod. 101, % P.Wms, 608. 
 
 (0 Cro. Eliz. 275, (I) Ibid. 1 5. 
 
 T 2
 
 £76 Of Assignments and Under-Leases. [Chap. XI. 
 
 though a bare power is not assignable : therefore if a lease be mads 
 with an exception of the trees, and a power be reserved to the lessor to 
 enter and cut them down, he may assign this power to another person ; 
 but if it be not properly pursued, the lessee may maintain trespass both 
 against the lessor and his assignee (<7). 
 
 A lease was made for years of lands excepting the woods : the lessor 
 grants the trees to the lessee, and he assigns the land over to another ; 
 the trees do not pass by this assignment to the assignee {b). 
 
 But generally a chose in action, bare right, or possibility cannot be as- 
 signed ; and where it is otherwise it arises from the enactment of s u mo 
 statute, or the construction of a court of equity. 
 
 As a right is not assignable, if the conuzee of a statute sue an ex- 
 tent, and a literati' is returned, yet if he suffer the conuxor to keep pos- 
 session, he cannot assign the lands; for his possession under tiie liberate 
 is by his own entry turned to a right (c). 
 
 But the king by virtue vi his prerogative may ass'vni a chose in ac- 
 tion, and the assignee may sue either in his own name or in the 
 king's (//). 
 
 Yet if the king grant a chose in action to another, as he may, his 
 grantee cannot assign it to another (/). 
 
 A, a copyholder covenants to assign and surrender to B. which cove- 
 nant is presented to the homage ; but before any surrender B. assigns 
 his interest to C. to whom A. surrenders ; C. has a rieht to be admitted 
 on payment of a fine for his own admittance only : for all the lord has 
 a right to require is to have a tenant, and a private agreement like this, 
 not followed up by a surrender of the estate, cannot give the lord of 
 the manor a right to any fine {/). 
 
 If a termor for years make a lease fur a time exceeding his interest, 
 it shall operate as an assignment (g). 
 
 An assignment, as contradistinguished from an under-lease, signifies 
 a parting with the whole term (/;) ; and when the whole term is made 
 over by the lessee, although in the deed by winch that is done, the rent, 
 and a power of re-entry for non-payment, arc reserved to him, and not 
 to the original lessor, yet this is an assignment and not an under-lease - r 
 and in such case, the original lessor or his assignee of the reversion, 
 may sue or be sued on the respective covenants in the original lease, 
 even thcueh new covenants are introduced in the assignment (i). 
 
 So, if a lessee for three years assign his term for four years, or de- 
 mises the premises for four years, he does not thereby gain, any tortiou* 
 re\er£ion, but it amounts to an assignment of his interest (k). 
 
 An a- :-.:.ncnt is usually made by the words " grant, assign, and set 
 
 :.<; 2 :.:,..'. 517. (i) Oodb. zoo. (.•) 4 Mod. 48. (<0 Cro. Jac. 180. 
 
 lOIbld. (/)aT.R.48+ (*) x Ld. Raym. 99. (b) 1 Sir. 4 cj. 
 
 • ;) Scd'/Ji Dcug. 187. n. f 5 •). U) 1 Ld- Raym.99.
 
 Ch.-ip. XL] Of Assignments and Under- Leases. 277 
 
 over-," but no particular expressions are necessary for the purpose, 
 provided the intention ot the parties is sufficiently explained. 
 
 No consideration need be expressed in an assignment, for the as- 
 signees being subject to the payment of the rent reserved by the lease, 
 is held to be a sufficient consideration [a). 
 
 An assignment must, by the statute (b) of Frauds, be in writing ; 
 the statute enacts, that no leases, estates, or 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 by the party so assigning, 
 granting, or surrendering the same, or their agents thereunto lawfully 
 authorized by writing, or by act and operation of law. 
 
 A parol assignment of a lease from year to year, granted by parol, 
 is void under the Stat, of Frauds (c). 
 
 An assignee of lease, to shew Ids interest in the premises is bound to 
 prove the execution of the lease, and all mesne assignments (d). 
 
 If a trader before bankruptcy deposits a lease as a security for money, 
 but no mortgage or assignment of it then takes place, the assignees may 
 recover it : it conferring no legal title (e). 
 
 The party assigning is called the assignor, and he to whom the assign- 
 ment is made, the assignee. 
 
 The proper covenants on the part of the assignor are, that the in- 
 denture of lease is good in law ; that he has power to assign ; for quiet 
 enjoyment ; and for further assurance. 
 
 The proper covenants on the part of the assignee arc that he will pay 
 the rent, or perform the services, as the case may be ; and also perform 
 the covenants contained in the indenture of lease, or save harmless the 
 assignor therefrom. 
 
 Assignees are in fact, or in law. — Under the word "assigns," the 
 assignee of an assignee in perpeiuiim> the heir of an assignee, or assignee 
 of an heir shall take. So, if a man covenant with another, " his exe- 
 cutors and assigns," the assignee of an assignee, and his executors, and 
 the assignee of an executor or administrator of every assignee, are in- 
 cluded and shall have covenant (f ). 
 
 It seems that an action will not lie by an assignor against an assignee, 
 for he has no residur.ry interest (g). 
 
 In lenses, the lessee being a party to the original contract, continues 
 always liable, notwithstanding any assignment (h). 
 
 Therefore covenant will lie against a lessee for years on an express 
 
 (a) Noy. Max. 92. I Med. 263. 2 Mud. 25;. (/;) 29 Car. 2. c. 3. 
 
 (.-) 1 Campb.313. (</) Ibid.3C3. (.) 5 Esp.IOj. 
 
 (/) Com. Dig. tit. " Alignment." (E.) Co. Lit. 584. b. 
 (£j j Ld. Raym. 99. i Salk. 10. 5. c. (/•■} Pern?. 46c.
 
 278 Of Assignments and Under- Leases. [Chap. XL 
 
 covenant, as to repair, pay rent, i5c. notwithstanding he has assigned 
 his term and the lessor has accepted rent from the assignee. — But an 
 action of debt will not lie after acceptance of rent (a). 
 
 So, the executor of a lessee is liable to the grantee of the reversion 
 on such covenants ; though the lessee may have assigned his term and 
 the grantee have accepted rcn* of the assignee (b). 
 
 For no assignment nor acceptance of the rent by the hands of the 
 assignee shall take from him the advantage of suing him or his execu- 
 tors upon an express covenant •, no more than if a lessee had obliged 
 himself in an obligation to pay his rent, his assignment over of his 
 term, and the acceptance of the rent by the lessor of the assignee, shall 
 not take from him the advantage of the obligation (c). 
 
 For the personal representative of a lessee for years is his assignee, 
 and a covenant to repair runs with the land, as it is to be performed on 
 it, and therefore binds the assignee (d). So with respect to a covenant 
 to make further assurance (e). 
 
 So, if there is a covenant which runs with the land, and the lessee 
 assigns over, and the assignee dies intestate, the lessor may have cove- 
 nant against the administrator of the assignee and declare against him 
 as assignee ; for such covenants bind those who come in by act of law, 
 as well as by act of the parties (/"). 
 
 Though all the estate of the lessee is assigned by Act of Parliament, 
 if there are no words of discharge the lessee's executor is still liable to 
 covenant for the rent (g). 
 
 Where there is a bond for the performance of the covenants in a 
 lease, if the lessee assigns the lease, he may likewise assign the bond : 
 but this must be before any of the covenants are broken ; for if any of 
 the covenants are broken, and the lessee afterwards assigns the lease 
 and bond, and the assignee puts the bond in suit for those breaches, it 
 has been held to be maintenance (/:). 
 
 An assignee must take the thing assigned, subject to all the equity 
 to which the original party was subject (/). 
 
 The assignee of a term is bound, therefore, to perform all the cove- 
 nants which are annexed to the estate •, for when a covenant relates to 
 and is to operate on a thing in being, parcel of the demise, the thing 
 to be done by force of the covenant is, as it were, annexed to the thing 
 demised, and shall go with the land, and bind the assignee in the per- 
 formance, though not named : for the assignee, by the acceptance of the 
 possession of the land, makes himself subject to all the covenants that 
 run with the land, of which repairing is one, building another, to pay 
 
 (■:) Cro. Jac. 309. Cro. Car. 579. 4 Mod. 81.3 Salk. 48. Cro. Jac. 334. 
 
 (0 4 Mod. 88. Cro. Jac. $1%. 3 Salk. 5. (0 Cro. Car. 18S. 
 
 (J) 1 Ld. Raytr.. 5 $ r ,. (e) Cro. Car. 503. (/) Esp. N- P. 290. 
 
 (g) Bac. Abr. tit. " Covenant." (£. 4. n.) (h) Godb. 81. (»') Doug. 636.
 
 Chap. XI.] Of Assignments and Under- Leases. 279 
 
 rent a third, £sV. and to such he is bound without being named by the 
 special word " assigns" (a). 
 
 So, where there was a covenant to use the land in a husbandman- 
 like manner, and leave it in like condition, it was held to be such a co- 
 venant as ran with the land, and that the executor of the landlord might 
 sue on it (b). 
 
 The assignee, however, is liable only in respect of his possession of 
 the thing ; he bears the burthen while he enjoys the benefit, and no 
 longer ; and if the whole is not passed, if a day only is reserved, he is 
 not liable (c). 
 
 But under an absolute assignment of a term the assignee may be sued 
 on the covenants before he has taken actual possession : for by the as- 
 signment the title and possessory right might pass and the assignee be- 
 come possessed in law ; and as to the actual possession, that must de- 
 pend on the nature of the property whether it can take place ; thus the 
 premises might be waste or unprofitable ground, or ground intended to 
 build upon (d). 
 
 So, a mortgagee, thougli not in possession, is liable to perform the 
 covenants in the lease : for a mortgagee is liable not on the score of 
 possession, but as assignee ; and his liability is not limited by his pos- 
 session, but continues as long as he has the legal estate. He should 
 have taken an under-lease (e). 
 
 As to the extent to which the lessee or assignee is liable in covenant, 
 there is a considerable difference. 
 
 i. The lessee has, from his covenant, both a privity of contract and 
 of estate : and thougli he assigns, and thereby destroys the privity of es- 
 tate, yet the privity of contract continues, and he is liable in covenant 
 notwithstanding the assignment (_/"). 
 
 2. But the assignee comes in only in privity of estate, and therefore 
 is liable only while he continues to be legal assignee ; that is, while in 
 possession under the assignment : except, indeed, in the case of rent, 
 for which, though he assign over, he is notwithstanding liable as to the 
 arrears incurred before, as well as during his enjoyment ; and such as- 
 signee was made liable in equitv, though the privity of estate was de- 
 stroyed at common law (g). 
 
 If a lessee covenants that he and his assigns will repair the house de- 
 mised, and the lessor grants over the term, and the assignee does not 
 repair it, an action of covenant lies either against the assignee at com- 
 mon law, because this covenant runs with the land ; or it lies against 
 the lessee, at the election of the lessor, who may charge both ; but ex=- 
 
 (a) Bull. N. P. 159. Esp. N. P. 289. 3 Salk. 4. (i) Esp. N. P. 29;. 
 
 (V) Doug. 184. 460. (a) Ibid. 462. n. [1.] 
 
 (f) Stone v. Evans, ante. 113. (/) Doug. 458. 764. 
 
 'yg) Bac. Abr tit. " Covenant." (E. 4.) 1 Bos. & Pul. 2j. 2 East's R. 58c
 
 £80 Of Assignments and Under-Leases. [Chap. XI 
 
 ecution shall be against one of them only, for if he take both in execu- 
 tion, he that is last taken shall have an audita querela (a). 
 
 So, covenant lies against an assignee on a covenant not to plough, al- 
 though assigns are not named in the deed ; for it is for the benefit of 
 the estate, and runs with the land (b). 
 
 So, if A. leases lands to B. and B. covenants to pay the rent, repair 
 houses, i5~c. during the said term, and afterwards assigns to C. the as- 
 signee is bound to perform the covenants during the term of the first 
 lessee, though the assignee be not named ; because the covenant runs 
 with the land made for the maintenance of a thing in esse at the time of 
 the lease made (r). 
 
 A covenant may be dividable and follow the land : therefore an ac- 
 tion of covenant will lie against an assignee of part of the thing de- 
 mised (d). 
 
 Therefore, where one demised two houses, with covenant on the 
 part of the lessee for himself and assigns to repair, the lessee as- 
 signed one of them, and for not repairing the lessor brought cove- 
 nant against the assignee, which action was held well to lie (<?). So, 
 in case of eviction, the rent may be apportioned as in debt or re- 
 plevin (/). 
 
 So, it seems, it lies by an assignee of part of the estate demised : or 
 the assignees of several parts may join (g). 
 
 The assignee of part of an estate is not liable for rent for the 
 whole (h). 
 
 But if a lessee grant or assign part of his estate, yet the entire pri- 
 vity of contract is not at an end, and the lessee would, it seems, re- 
 main liable on his covenant to pay the entire rent, for he cannot appor- 
 tion it (/). 
 
 Lessee of tithes covenants for him and his <c assigns," that he will 
 not let any of the farmers in the parish have any part of the tithes: this 
 covenant runs with the tithes, and binds the assignee (.(•)• 
 
 Where a covenant is for the benefit of the estate demised, it will ex- 
 tend to the assignee, though not named. 
 
 Therefore, a covenant that a lessee should reside on the demised pre- 
 mises during the term, was held to extend to his assignee, though not 
 named in the covenant (/). 
 
 The assignee may assign, and thereby get rid of his subsequent rent, 
 and of the covenants which run with the land : and as he may do so at 
 law, so a fortiori may he do so in equity ; for though the tenant's liability 
 
 (a) Cro.Jac. 533. (/,) Ibid. 125. (,) Bac. Abr. tit. " Covcuant." (E. 3.) 
 
 (</) 1 Roll. 522. 1. 5. Jones. 245. Cro. Car. 222. (e) Ibid. 
 
 (/) 2 East's R. 575. (£) Com. T)lg. tit. " Covenant." (B. 3.) 1 Leon. 250. 
 
 (/>) Ibid. 109. Doug. 186. (0 Ibid. Cro. Eliz. 633. 637. 2 East's R. 579. 
 
 (-OjWils. 2,$. (OaH.BLR. 133.
 
 Chap. XL] Of Assignments and Under- Leases, 2S1 
 
 •on his covenant to pay rent subsists during the continuance of the lease, 
 notwithstanding he may become a bankrupt and be deprived of all 
 his property, there is no personal confidence in the assignee of 
 the lessee, and when he parts with the lease, he also gets rid of his 
 liability (a). 
 
 But an assignee, who assigns over, is liable to covenant for the rent 
 incurred during his enjoyment ; and if covenant be brought, he may 
 plead that before any rent was due he granted all his term to J. S. who 
 by virtue thereof entered and was possessed (£) •, and this will be a good 
 discharge without alledging notice of the assignment, and the assign- 
 ment will be good though made to a beggar, or to a person leaving the 
 kingdom, provided the assignment be executed before his departure ; or 
 therefore made a day before the rent due to a prisoner in the Fleet ,• nor 
 can the plaintiff take advantage of it by replying per fraudem, unless he 
 can prove a trust : it was the lessor's own fault and folly to take the 
 first assignee for his tenant ; nor is he without remedy, for he may 
 bring covenant against the lessee, or may distrain upon the land. In 
 truth, if you have no remedy against the assignee, you must lose your 
 rent, and get possession of the premises as soon as you can. The only 
 case, Lord Eldon thought, in which a question of fraud could arise, 
 was, where the assignor had kept possession of the premises of which 
 he made a profit, and had made an assignment to prevent responsibility: 
 but even there, if the possession were profitable, there would always 
 be something on the premises for the landlord to distrain ; for which 
 reason his Lordship doubted whether there ever could be such a thing 
 as a fraudulent assignment, and whether an issue on such a point could 
 ever be well taken. The defendants in the principal case, had a right 
 to devest themselves of the interest, by the mere form of an assignment, 
 which drives the plaintiff to take possession. Bul/er, J. also thought, 
 that the only case, where the replication per fraudem could be good, was 
 where the assignor continued in possession (c). 
 
 As therefore by the assignment the title and possessory right pass and 
 the assignee becomes possessed in law, ;md is only liable while in actual 
 possession (d) ; so, if he assign over before a breach, though his as- 
 signee have not taken actual possession, yet he (the first assignee) is 
 not liable to an action of covenant (*). 
 
 It is not necessary that notice should be given to the reversioner of 
 an assignment over. In an action against the assignee of a term, the 
 plea of an assignment over ought to shew that such assignment over was 
 made after the assignment stated in the declaration : but if it does not, no 
 
 (a) 2 Atk. 546. 1 a Mod. 23. 2 Str. 1221. 4T. R.99. ST. R.61. Doug. 461. in n. 
 1 Bos. & Pull. 23. {b) Bull. N. P. 1 59. 4 Mod. 72. 
 
 (<) Salk. 81. 4 Mod, 71. 12 Mod. 23. Doug. 764. I Bos. &. Pull. 23. 
 (<0 Doug. 444. (*) i B. & P. it.
 
 2 82 Of Assignments and Under- Leases. [Chap. XI. 
 
 objection can be made against it after replication that such assignment 
 over was fraudulent (a). 
 
 Where there is an exception in a lease of an entry, and liberty to 
 wash in the kitchen, and a passage for that purpose, an action will lie 
 against an assignee for hindering the lessor ; for a covenant relating to 
 a way or other profit apprendre goes with the tenement and binds the as- 
 signee (£). 
 
 If a man leases for years, and the lessee covenants for him and his 
 assigns to pay the rent, so long as he and they shall have the possession 
 of the thing let, and the lessee assigns ; the term expires, and the as- 
 signee continues the possession afterwards : an action of covenant will 
 lie against him for rent behind after the expiration of the term ; for 
 though he is not an assignee strictly according to the rules of law, yet 
 he shall be accounted such an assignee as is to perform the cove- 
 nants (r). 
 
 Touching the difference of debt and covenant against an assignee, it 
 is extremely clear that a person who enters into an express covenant in 
 alease, continues liable on his covenant, notwithstanding the lease be 
 assigned over. The distinction between the actions of debt and cove- 
 nant, which was taken in early times, is equally clear : if the lessee as- 
 sign over the lease, and the lessor accept the assignee as his lessee, ei- 
 ther tacitly or expressly, it appears by the authorities that an action of 
 debt will not lie against the original lessee ; but all those cases with one 
 voice declare, that if there be an express covenant, the obligation on such 
 covenant still continues : and this is founded not on precedents only, 
 but on reason ; for when a landlord grants his lease, he selects his te- 
 nant •, he trusts to the skill and responsibility of that tenant •, and it 
 cannot be endured that he should afterwards be deprived of his action 
 on the covenant to which he trusted, by an act to which he cannot ob- 
 ject (as the assignment of a bankrupt's interest) as in the case of exe- 
 cution. In such a case the lessor has no choice of the under-tenant : 
 so, in the principal case, the assignees of the bankrupt were bound to 
 sell the term, and perhaps they might assign to a person in whom the 
 lessor had no confidence ; wherefore the lessee was held liable, notwith- 
 standing his bankruptcy. Where a disposition of the lease has been 
 made by virtue of a fieri facias, or an elegit, the lessee continues liable 
 on his covenant, notwithstanding the estate be taken from him against 
 his consent (d). 
 
 An assignee is not liable on a covenant that relates to something not 
 in being at the time of the demise, or merely personal or collateral to 
 the thing demised •, as to pay a sum of money in gross, to build de novo, 
 
 (a) i Ld. Raym. 367. 3 Salk. 48. ' (b) 1 Show. 388. 1 Salk. 196. 
 
 (,) Bac.Abr.tit. " Coveiia»t." (E. 3.) Stile, 407. (d) 4 T.R. 98. Noy. Max. 91.
 
 Chap. XL] Of Assignments and Under-Leases. 283 
 
 or the like, for it does not run with the land, and therefore assignees 
 are not bound even though they be expressly named. 
 
 Thus, if a man leases sheep or any thing personal, and the lessee co- 
 yenants for himself and "his assigns" at the. end of the term to deliver 
 up the sheep or things so let, or such a price for them ; if the lessee 
 assign, this covenant shall not bind the assignee j for it is but a per- 
 sonal contract, and wants such privity as is between the lessor and the 
 lessee and his assigns, by reason of the reversion (a). 
 
 Tithes, however, are so far assimilated to land, being the profits 
 thereof, as to form an exception (£). 
 
 As the assignee of a term is not liable on a mere collateral covenant, 
 therefore where the lessee of certain premises covenanted to pay annu- 
 ally, during the term of twenty-one years, twenty shillings, to the 
 churchwardens of the parish, his assignee was held to be not li- 
 able (r). 
 
 But though generally a personal or collateral covenant affects not an 
 assignee, yet if the covenant regard something to be done upon the 
 land, and the assignee be named, though it were not in being at the 
 time of the demise, and be in some measure collateral, as to build a 
 wall, or new house upon the land, &c. it shall bind the assignee ; be- 
 cause he will receive the benefit of it (d). 
 
 Yet, though the assignee be named in the original covenant, if it has 
 been broken before assignment, no action will lie against him ; for he 
 shall not be answerable for a breach which he never committed. 
 
 Thus, where the lessee covenanted to pull down certain old houses, 
 and rebuild others within seven years, but did not perform the cove- 
 nant, and at the end of seven years assigned ; an action was brought 
 against the assignee and held not to lie ; the breach being complete he- 
 fore the assignment (f) : had the covenant, however, been broken before 
 the assignment, as if the lessee had assigned before the time expired, 
 the assignee would have been liable (f)- 
 
 Neither is an assignee liable for the breach of any covenant, as for 
 rent due, after he has assigned over his term ■, because the privity of 
 estate is gone : and this though the assignment over be made without 
 notice to the lessor : and though such assignment goes to the feme co- 
 vert , for she may purchase (g). 
 
 The assignee therefore of a term, declared against as such, is not li- 
 able for rent accruing after he has assigned over, though it be stated 
 that the lessor was a party executing the assignment, and agreed there- 
 
 (a) 5 Co. 1 7. 3 Res. (/>) 3 Wifs. 2$. (:) Cro. Jac. 438. 
 
 (<0 S Co. 16. b. Com. Dig. tit. " Covenant." (C. 3.) Bull. N. P. 1.59. 
 00 1 BLR. 351. 3 Bur. IZ72.S.C. (/) Salk. 199. 1 Ld. Raym. 388. 
 
 (r) 1 Frero. 336. Nov- Max. 91, 1 Show. 340, Doug. 452. Co. Lit. 3. a. 356. b.
 
 28 i 0/ Assignments and Under- Leases. [Chap. XI. 
 
 by that the term, which was determinable at his option, shall be abso- 
 lute (a). 
 
 Yet where a breach is continuing it shall be otherwise ; as if a cove- 
 nant be to repair within such time after notice, if the lessee does not 
 repair upon notice by the assignee, covenant lies ; though it was out of 
 repair before the assignment (b). 
 
 A rent shall not be decreed against the assignee of a wine-licence 
 lease, who purchased without notice of the rent ; for the rent does not 
 run with the licence, but is due upon the contract only (<;). 
 
 A covenant not to assign generally, must be personal and collateral, 
 and can only bind the lessee himself; for there never can be any as- 
 signee (d). 
 
 As an assignee shall be bound by a covenant real annexed to the es* 
 tate, and which runs along with it, so shall he take advantage of 
 such (e). 
 
 Therefore, if the lessor covenants to repair, or if he grants to the 
 lessee so many estovers as will repair, or that he shall barn within his 
 house during the term ; these, as things appurtenant, shall go with it 
 into whose hands soever it comes ( f). 
 
 So, if a man leases land to another by indenture, the covenant in 
 law created by the word " demise," shall go to the assignee of the term, 
 and he shall have advantage of it (g). 
 
 But though generally an assignee of a term who comes in by act of 
 law, as well by deed as by s r atute-merchant, shall have the benefit of 
 covenants ; an assignee of a lease by estoppel is an exception to the rule; 
 for there is a difference where a covenant is annexed to a thing which 
 of its nature cannot pass at the first without deed, and where not : for 
 in the first case, the assignee ought to be in by deed, otherwise he shall 
 not have advantage of the covenant (h . 
 
 If one by indenture lease a house for forty years, and the lessee co- 
 venants with the lessor that he will sufficiently repair the house during 
 the term, and that tire lessor may enter every year, to see if the repairs 
 are done : and if upon view of the lessor it was repaired according to 
 the agreement, that then the lessee should hold the house for forty years 
 after the first term ended, and the lessee grants to another all the in- 
 terest in the term and terms which he had in the tenements, and after 
 the first term ended ; the assignee shall not take the benefit of tins 
 agreement. 
 
 But if A. leases a house to B. for years, who covenants t» repair, and 
 that A. his heirs, executors, and administrators, may at all times enter, 
 and see in what plight the same is ; and if upon such view any defauls 
 
 («) Doug. 764. (b) Com. Dij. fit. " Covenant." (B.) (<■) Haul, 8S. 
 
 (J) 3 Wils. 35. ( e ) B.;c. A!ir. ut. " Covenant." (E. 5.) (_/ j lb.d. 
 
 {*) Ibid. WCro.Pz.373,437. 
 
 4
 
 Chap. XL] Of Assignments and Under- Leases. 2$5 
 
 shall be found in the not repairing, and thereof warning shall be 
 given to B. his executors, isfc. then within four months after such 
 warning such default shall be amended ; and afterwards, the house 
 in default of B. becomes ruinous, and A. grants the reversion to 
 C. who upon view of the house gives warning to B. of the default, 
 bfc, if it be not repaired C. may have an action as assignee of A. 
 against B. though the house became ruinous before C. was entitled 
 to the reversion ; for the action is not founded upon the ruinous 
 state of the house, and the time when it first happened, but for 
 not repairing within the time appointed by the covenant after the 
 warning [a). 
 
 But an assignee shall not have an action upon a breach of covenant 
 before his own time (J>). 
 
 The assignee of a term may take advantage of a covenant against the 
 assignee of the reversion : and he may have this remedy by way of re- 
 tainer against such assignee. 
 
 Therefore where A. leased lands to B. for two hundred years, and 
 by the same deed covenanted for himself, his heirs, and assigns, with 
 B. his executors, and assigns, that if B. were disturbed for respite of 
 homage, or enforced to pay any charge or issues lost, he should 
 withhold so much of his rent as he should be enforced to pay, 
 and A. grants his reversion to C. and B. assigns the term to D. D. 
 may take the benefit of this covenant against C. for it runs with the 
 land (c). 
 
 An assignee shall not be prevented of a benefit allowed by law, for 
 the avoidance of a rent (d). 
 
 At common law, no grantee or assignee of a reversion could take 
 the benefit or advantage of a condition for re-entry. It was therefore 
 enacted by stat. 32 II. 8. c. -34. that all persons grantees of the rever- 
 sion of any lands from the king, or grantees or assignees of any 
 common person, their heirs, executors, successors, and assigns, shall 
 have like advantage against the lessees, tsV. by entry for non-payment 
 of rent, or for doing waste cr other forfeiture, and the same 
 remedy by action only for not performing other conditions, covenants, 
 and agreements contained in the said leases, as the lessors or grantors 
 themselves had. 
 
 On this statute it is to be observed, 
 
 1 . That as the words of the statute are against lessees, it does not 
 extend to covenants upon estates in fee cr in tail, but only upon leases 
 made for life or years (?). 
 
 2. That an assignee of part of the estate of the reversion may take 
 
 (a) Bac. Abr. ut ante. {b) Cro. Eliz. 863. (c) Ibid. (J) 2 Vein. 433. 
 
 ■;-; Esp.JT. P. 293. Co. Lit. a;. 1. Cro. Eliz, 863.
 
 '2$6 Of Assignments and Undcr-Leases. [Chap. XI. 
 
 advantage of the condition ; as if lessee for life be, lsc. and the re- 
 version is granted for life ; so if lessee for years, &c. be, and the 
 reversion is granted for years, the grantee for years shall take ad- 
 vantage of the condition in respect of the word " executors" in the 
 Act (a). 
 
 3. But a grantee of part of the reversion shall not take advantage of 
 the condition ; as, if the lease be of three acres, reserving a rent 
 upon condition, and the reversion is granted of two acres, the rent 
 shall be apportioned by the act of the parties, but the condition is 
 destroyed, for that it is entire and against common right: except indeed 
 in the case of the king(£). 
 
 4. Whoever comes in by the act of the party, as by bargain and 
 sale of the reversion, or by grant of the reversion in fee to the use of 
 A. is an assignee within the statute, as the bargainee in the one case, 
 and A. in the other (r). 
 
 But such as come in merely by act of law, as the lord by es- 
 cheat, or are in of another estate, shall not take benefit of the sta- 
 tute (d). 
 
 5. The grantee shall not take advantage of a condition before he has 
 given notice to the lessee, but he may of a covenant (e). 
 
 6- The grantee or assignee shall take advantage of such conditions 
 only as are incident to and for the benefit of the reversion ; as rent, 
 waste, repairs, making fences, scouring ditches, preserving woods, 
 and such like ; and not for the payment of any sum in gross, the 
 delivery of corn, wood, or the like. So, " other forfeiture" relates 
 to such things as are incident to the reversion and run with the 
 land (f). 
 
 7. The assignee of the lessor may maintain covenant against the 
 lessee after the lessee had assigned, and he had accepted rent from the 
 assignee, for such is within the statute (g). 
 
 So, an assignee of a reversion, who hath accepted rent from the 
 assignee,, of the term, may maintain covenant against the executor of 
 the lessee, or the assignee of the term for a breach of covenant 
 running with the land, though it be committed after the assignment of 
 the reversion (h). 
 
 But otherwise it is of a covenant in land, which is only created by 
 the law, or of a rent, which is created by reason of the contract, 
 and is by reason of the profits of the land, wherein none is longer 
 chargeable with them than while the privity of estate continue with 
 them (z). 
 
 8. The surrenderee of a copyhold reversion may bring debt or cove- 
 
 ts Co. Lit. 215. a. {b) Ibid. (c) Ibid, 
 
 (i) Ibid. (0 Cro. Jac. 4;6. if) Co. Lit. 215. I, 
 
 (?) 2 Show. i,: 4 (/;) Cro. Jac. 522, (0 Ib; d- 52.3 
 
 8
 
 Chap. XL] Of Assignments and Under- Leases. 287 
 
 nant against the lessee within the equity of this statute, for it is a 
 remedial law, and no prejudice can arise to the lord (a). 
 
 Assignment by way of Mortgage. — With respect to assignments bv 
 way of mortgage, being merely conditional, they are not considered as 
 an actual transfer of property, but as a security only for money. 
 
 So, if a lessee for years, with covenants to repair, assigns to f. S. 
 by way of mortgage, and J. S. never enters, equity will not compel 
 him to repair, though he had the whole interest in him : and though 
 it was his own folly to take an assignment of the old term, when he 
 should have taken a derivative lease, by which means he would not be 
 liable at law (b). 
 
 But a case occurs, where such an assignee, though he never entered, 
 and had lost his mortgage money, was by law compelled to pay 
 the rent, and having sued in equity could have no relief (<r). And it 
 is now held that the mortgagee having the legal estate shall be liable as 
 assignee, whether in possession or not (^). 
 
 If mortgagor and mortgagee make a lease in which the covenants 
 for the rent and repairs are only with the mortgagor and his assigns, 
 the assignee of the mortgagee cannot maintain an action for the breach 
 of these covenants, because they aie collateral to his grantor's interest 
 in the land, and therefore do not run with it (e). 
 
 But if the tenant for a term convey the term by way of mortgage, 
 and then join with the mortgagee in a lease for a shorter term, in 
 which the covenants for the rent and repairs are only with the mort- 
 gagor and his assigns, and the interests of the mortgagor and mort- 
 gagee become extinguished during the lease by the reversioner acquir- 
 ing their estates, still the mortgagor may maintain an action of cove- 
 nant against the lessee, the covenants being in gross (/)• 
 
 That which cannot be supported as an assignment shall be good as 
 an under-lease against the party granting it (g). 
 
 Under a proviso that all assignments of i lease shall be void, if not 
 enrolled, under-leases are not included (h). 
 
 An under-lease is not an assignment to the effect of working a 
 forfeiture under a proviso not to assign. 
 
 It has therefore become usual to insert a proviso in leases, that the 
 lessee, &C, shall not let, set, transfer, or assign over or otherwise 
 part with the whole or any part of the premises (*). 
 
 An under-lease, made by a lessee for years, determinable on a future 
 day certain, and to commence immediately on his death, is good, he 
 dying within the time (£). 
 
 Therefore a man possessed of a term for twenty years, may grant 
 
 'j) I Salk. 185. (b) Doug. 462. n. i. z Vern. 275. (c) Ibid. 374. 
 
 ( Stone v. Evans, ante 113. (?) 3 T. R. 393. (/) Ibid. 678. (g) Doug. 1S8. n. 
 
 '/; Ibid.96.3Wils.x34, aBLR.767.Ibid.57.i84. (i)*T.R,4Z5. (i)Cro.Jac.459'
 
 283 Of Assignments and Under-Leascs, [Chap. XL 
 
 the lands for nineteen years, to commence after his death, and it will 
 be good for so many of the twenty years as shall be unexpired at the 
 time of his death («). 
 
 It was formerly held that an action on the case would lie by a 
 lessee for years against his under-tenants for so negligently keeping his 
 fire that the premises were burned down : though not against a tenant 
 at will (b). 
 
 But by stat. 14 G. 3. c, 28. s. 86. it is enacted, that no action, suit, 
 or process whatever, shall be had, maintained, or prosecuted, against 
 any person in whose house, chamber, stable, barn, or other building, 
 or on whose estate any fire shall accidentally begin, nor shall any 
 recompence be made by such person for any damage suffered thereby, 
 any law, usage, or custom to the contrary notwithstanding. 
 
 The landlord or original lessor cannot sue an under-tenant on a cove- 
 nant for rent contained in the original lease (c). 
 
 An under-tenant, whose goods were distrained and sold by the 
 original landlord for rent due from his immediate tenant, cannot main- 
 tain an action for money paid to the use of the latter : for immediately 
 on the sale under the distress, the money paid by the purchaser vested 
 in the landlord, in satisfaction of the rent, and never was the money 
 of the under-tenant (d). 
 
 An under-lease of the whole term amounts to an assignment (<?). 
 
 But if the lessor reserves the rent to himself on granting over, it 
 is an under-lease and not an assignment, though he parts with the 
 whole term (f). 
 
 An action will lie by the assignee of a reversion for years against 
 an under-lessee on a covenant to leave the premises in repair (g). 
 
 {a) % Str. 737. (/?) 4 Mod. 9. iz. Mod. 15. (c) Doug. 183. (tf) 11 East, 52. 
 • (f) 1 Ld. Raym. 99. (/) 1 Str. 404. Scd viic »nte. (g) Cro. E!iz. 596.
 
 [ 289 ] 
 
 CHAPTER XII. 
 
 Of Changes happening by Marriage, Bankruptcy, Insol- 
 vency, or Death: tv herein of Assignees, Devisees, Execu- 
 tors, and Administrators, and in what Cases they arc 
 hound by, and may take advantage of Covenants. 
 
 f^HANGES by Marriage. — The marriage is a gift in law to the 
 husband of all the wife's chattels real, as a term for years in right 
 of his wife ; so of estates by statute-merchant, statute-staple, elegit, 
 &c. and of these he may alone dispose, or forfeit, or they may be ex- 
 tended for his debts {a). 
 
 But if he makes no disposition of them in his lifetime, they survive 
 to his wife, and therefore he cannot devise them. For the husband is 
 only possessed of a term in her right ; and the term or legal interest 
 continues in her (b) \ for the law does not love that rights should be 
 destroyed ; but, on the contrary, for the supporting of them invents 
 notions and fictions, as abeyance, &c. (c). 
 
 So a feme covert is of capacity to purchase of others without the 
 consent of her husband, and though he may disagree and divest the 
 estate, yet if he neither agree nor disagree, the purchase is good [d). 
 
 If a woman, lessee for years, takes husband, who afterwards pur- 
 chases a new lease to them both for their lives of the same lands, this 
 is a surrender in law of the first term, and shall bind the wife ; be- 
 cause it amounts to an actual disposition thereof, which the husband 
 had power to make (e). 
 
 So, if a man marries a woman who is cestui que trust of a term, the 
 husband may as well dispose of this trust as if the legal interest was 
 in her (f t . But not if the trust was created with his privity a id con- 
 sent (g). 
 
 Even where the husband was possessed of a term in right of his 
 wife from whom he was divorced a mensa C5 3 thoro ,• he was restrained 
 from selling it (£). 
 
 (a) Bac. Abr. tit. " Baron et Feme." (C. 2.) (&) Ibid. (V) i Ld. Raym. 515. Co. Lit. 342. 
 {d) Ibid. 3. a. 356. b. (,) Bac. Abr. ut an'.?. (/> 1 Vern. 7. id. 3 Atk. 435. 
 
 ( f ) Ibid. (I) 9 Mod. 44- 
 
 u
 
 2£0 Of Changes happening [Chap. XII. 
 
 But such term, whereof the husband is possessed in right of his 
 wife, may be extended for the debts, or forfeited for the crimes oi 
 the husband; for these are legal dispositions thereof, which shall bind 
 the wife («). 
 
 But if a husband should grant a rent, common, C5V. out of such 
 term and die, this would not bind the wife surviving, because the 
 term or possession itself being left to come entire to the wife, all inter- 
 mediate charges or grants thereout by the husband determine with his 
 death ; for the title of the wife to such term has relation to the time 
 of their intermarriage, and so is paramount to all collateral charges or 
 grants made thereout by the husband after. 
 
 So, a grant by the husband of the herbage or vesture of such 
 land which he held in right of his wife for years, will be void after 
 his death ; because they are part of the land itself, and not collateral 
 to it (b). 
 
 If the husband and wife be evicted of a term which he hath in 
 right of his wife, and the husband brings an ejectment in his own 
 name, and hath judgment to recover, this makes an alteration in the 
 term and vests it in the husband -, because, not making his wife a 
 party to the recovery, he takes the whole wrong to be done to himself, 
 and consequently if he recovers, it must be by virtue of that right 
 whereof he was disseised. 
 
 An estate by the curtesy is subject to the charges of the wife : so 
 that if a woman, tenant in-tail, acknowledges a statute and afterwards 
 marries, has issue, and dies, the lands may be extended in the hands 
 of the husband holding as tenant by the curtesy (r). So, where a 
 husband is but tenant by the curtesy, and has only an interest 
 for life in the wife's estate, he cannot affect that estate without her 
 joining (d). 
 
 Husband and wife make a lease for years by indenture of the wife's 
 lands reserving rent^ the lessee enters; the husband before any day 
 of payment dies, the wife takes a second husband, and lie at the 
 dav accepts the rent and dies : it was holden, that the wife could not 
 now avoid the lea^e, for by her second marriage she transferred her 
 power of avoiding it to her husband, and his acceptance of the rent 
 binds her, as her own before such marriage would have done : 
 for he, by the marriage, succeeded into the power and place of 
 his wife, ami what she might have done, cither as to affirming oi 
 avoiding such lease before marriage, the same may the husband do 
 iificr the marriage [e). 
 
 As the wife's acceptance of rent or fealty, Isfc. will make good and 
 unavoidable leases for years, made by her and her husband at common 
 
 (j) Br.e. Abr.utanfe. (A) Ibid. (r) Dyer. 51, b. I 2. (0 3 .'.'k, 455. 
 
 ('-) Eir. ,' br. :t. " Baron and Ftrre." (10 x S ilk. 4.
 
 Chap. XII.] hy Marriage, §c. %g 1 
 
 taw, or by her husband solely, if they be by indenture or deed-poll; 
 so, if the wife die before her husband, the same election ai d power of 
 affirming or avoiding such leases descends to her issue or heir : for 
 such leases are good, till those who succeed to the estate defeat and 
 avoid them by their disagreement thereto [a). 
 
 Therefore where a woman tenant in-tail, having issue by a former 
 husband, after his death married a second husband, and they by in- 
 denture joined in a lease for years of the wife's lands, rendering rent, 
 and then the wife died without issue by the second husband, so that 
 he was not entitled to be tenant by the curtesy, it was holden, 
 that till the issue by the first husband entered, this lease remained 
 good (/;). 
 
 So, where a man seised of land in right of his wife, makes a lease 
 for years, rendering rent, and then his wife dies without issue by him, 
 whereby he is not tenant by the curtesy, but his estates determined ; 
 yet he may avow for the rent till the heir hath made his actual entry, 
 because the lease was at first good, and drawn out of the seisin of the 
 wife; and therefore, till the entry of the heir, remains good between 
 the lessor and the lessee, so that the lessee may maintain an action of 
 covenant, and the lessor distrain and avow for the rent, till the heir 
 hath entered (c). 
 
 If a term of years be granted to a feme covert and another, or if a 
 feme sole and another are joint-tenants of a term of years and the feme 
 takes husband, yet in both cases the joint -tenancy still continues, for 
 the marriage makes no severance or alteration of ir, but gives the 
 husband the same power his wife had before, by an actual disposition 
 of her moiety to break the joint- tenancy, and bind his wife's interest 
 therein; but without such disposition, the joint-tenancy continues, and 
 if tire husband dies, the whole shall go accordingly (d). 
 
 So, if such joint-tenants are ousted of the term, the wife shall join 
 with the husband and the other joint-tenant in ejectment, and the wife 
 shall have judgment to recover as well as the husband : and if in such 
 case before any actual disposition made by the husband, his wife die, 
 the whole term shall go to the surviving joint-tenant and no part 
 thereof to the husband : because, though the husband, if he survives, 
 is by law to have all chattels real and personal of his wife's, and this 
 term was a chattel real, yet the title of the other joint-tenant to have 
 the whole by survivorship, coming at the same instant and being the 
 elder title, shall prevail against the husband (e). 
 
 Although by the marriage, the husband and wife become one person 
 in law, and therefore such an union works an extinguishment or revoca- 
 tion of several acts dons by her before the marriage, yet in things 
 
 <a) Bac. Abr. vt sr.U. {!>) Ibid. (<) Ibid. 
 
 U] Bac. Abr, tit. " rare:: and Feme." (I.) ty Ibid.
 
 292 Of Changes happening [Chap. XII. 
 
 which would be manifestly to the prejudice of both husband and wife, 
 the law does not make her acts void (a). 
 
 Therefore, if a feme sole makes a lease at will, or is lessee at will, 
 and afterwards marries, the marriage is no determination of her will, so 
 as to make the lease void-, nor can she herself without the consent of 
 her husband determine the lease in either case (if). 
 
 The husband, as head or governor of the family, has an absolute 
 power over the chattels real and personal of which he is possessed in 
 right of his wife, to dispose of them as he thinks proper, and no act 
 or concurrence of her's is of any avail, either in confirming or controul- 
 ing such disposition (c). 
 
 Therefore, if an express condition (as to pay rent) be annexed to 
 the estate of a woman, who takes husband, the laches of the husband 
 to perform the condition, loses the estate for ever(af). 
 
 But the laches of the husband to perform a condition in law, which 
 does not require 'kill or confidence, (as not to alien in fee) does not 
 prejudice his wife (e). 
 
 The real estate however of the feme is under a different regulation 
 from that by which her chattels real and personal are governed, for 
 it is under the power of the husband no longer than during the 
 coverture, and therefore any disposition of it made by him alone 
 may be defeated ; also, all charges laid on it by him, fall off with his 
 death (/). 
 
 But the husband during coverture may take the rents and pro- 
 fits of the whole estate of his wife : and as he has the sole dispo- 
 sition of all interests of his wife, lie may, for an interest which vests 
 in the wife, or accrues to her during coverture, either sue alone, or 
 with his wife (g). 
 
 If a feme sole' hath right to have common for life, and she takes 
 husband, and he is hindered in taking the common, he may have an 
 action alone without his wife, it being only to recover damages (/>). 
 
 But if baron and feme arc disseised of the land of the feme, they 
 must join in an action for the recovery of the land (?'). 
 
 If A. demise a house to B. for years, and B. covenants to repair 
 the said house during the term, and afterwards A. grants the reversion 
 to baron and feme, is'c. the baron may have an action alone upon 
 this covenant (h). 
 
 But if lands be conveyed with a covenant for further assurance to 
 husband and wife, she must be joined with him in an action for the 
 breach of such covenant (/). 
 
 In those cases where the debt or cause of action will survive to the 
 
 {a) Bac. Abr. tit. " Baron and Feme." (t.) {b) Ibid. (0 Bac. Abr. tit. ut cnte (I.) 
 
 (J) Co. Lit. 246, b. (*) Ibid. 233. b. (/) Bac. Abr. ut ante. (g) Com. Di/. tit. " Baron 
 End Feme." (0.) (A) Bac. Abr. tit. ut ante. (K.) (0 Ibid, (i) Ibid, in n. (/) Cro. Car.jcj-
 
 Chap. XII.] by Marriage, <§r, 29 3 
 
 wife, the husband and wife are regularly to join in the action ♦, as in re- 
 covering debts due to the wife before marriage, in actions relating to 
 her freehold or inheritance, or injuries done to her person (a). 
 
 In other cases, as in actions for a profit accrued during the coverture 
 to the husband in right of his wife, in which the husband may sue 
 alone or join with his wife, it is the more sure mode to join (£). 
 
 If there be a lease by the wife dwn sc/a, payment of the rent ought to 
 be to the husband ; and payment to the wife without the husband's or- 
 der, though there be no notice of the marriage, shall not discharge the 
 lessee (c). [For other matter relative to this subject see ante C. III. 
 
 S. 12.] 
 
 Of Dower —A woman is entitled to dower of a reversion expectant 
 on a term for years. Thus if a man, either before or after marriage, 
 make a lease for years reserving rent, his wife will be entitled to a thmi 
 of the land for her dowry, and also to a third of the rent, as incident 
 to the reversion (d). 
 
 The widow holds her dower discharged from all judgments, leases, 
 mortgages, or other incumbrances, made or created by her husband 
 after the marriage (e). 
 
 Dower is even protected from distress for a debt due to the crown, con- 
 tracted during the marriage ; and if the lands arc distrained upon, the 
 doweress may have a writ to the sheriff commanding him not to dis- 
 train, or to restore the distress, if any be taken ( f ). 
 
 A rent issuing out of land whereof a woman is dowable may be as- 
 signed in lieu of dower: and if a tenant in tail assign a rent out of the 
 land intailed to a woman entitled to dower out of such estate tail, not 
 exceeding the yearly value of her dower, it will bind the issue (g). But 
 rent assigned in lieu of dower, as it comes in lieu of land, ought to be 
 absolute as the assignment of the land itself (h). 
 
 A jointress is not so favoured in law as a doweress. But the Court 
 of Chancery will set aside a term of years in favour of a jointress, 
 though it will not do so in favour of a woman entitled at law to dower ; 
 because a jointress has a fixed interest by the agreement of the party (/). 
 
 Of Changes by Bankruptcy. — The legal right that the landlord has to 
 distrain the goods of his tenant for rent in arrear, is not affected by the 
 tenant's bankruptcy while the goods remain on the premises. 
 
 For a landlord is considered in a higher degree than a common credi- 
 tor, and it would be hard to preclude him from distraining, where there 
 are goods on the premises \k). 
 
 (a) Bac. Abr. ut ante. (1) Com. Dig. tit. " Baron and Feme." (X.) (c) Ibid. (O.) 
 
 (J) i Inst. 32. a. 1 Cruise's Di^. tit. 6. c. 3. s. 10, II. (V) 1 Inst. 46. a. 4 Rep. 65. a. 
 
 Cruise's Dig. tit. 6. 3. (/) 1 Inst. 31. a. F.N. B. 150. Cruise ut ante. s.41. 
 
 (V) 1 Roll. Abr. 683. 0) Cro. Biz. 4JC (>) Prec. in Ch,5. 1 Cruise's Dig. tit. 7.S. ic 
 (/) 1 Atk. ioj.
 
 £94 Of Changes happening [Chap. XII. 
 
 The issuing a commission of bankrupt therefore against a tenant, ami 
 the messenger's possession of his goods, does not hinder the landlord 
 from distraining for rent ; but while upon the premises, they are still 
 liable (a). 
 
 Money paid for rent to a landlord who was about to distrain, by a 
 trader after an act of bankruptcy committed, is not recoverable back by 
 the assignees (b). 
 
 The landlord may distrain the goods for his entire debt, even after as- 
 signment or sale by the assignees, if the goods are not removed : the 
 reason is, because no provision is made in the case of bankruptcy by 
 the statute (8 Ann. c. 14.) which gives the landlord a year's rent on ex- 
 ecutions (c\ 
 
 But it is a principle that a landlord has no lien in such case after the 
 goods are removed from the premises (d). 
 
 Therefore if the landlord neglects to distrain, and suffers the good* 
 to be sold by the assignees and removed from off the premises, he can 
 only come in on an average with the rest of the creditors (<?). 
 
 Also, if landlord prove his debt for rent under the commission and 
 swear that he has no security, he thereby waives, it should seem, his 
 right to distrain; and the vendee of such goods under the assignee will 
 be entitled to the goods {f). 
 
 So, a landlord who petitions to be paid the rent in arrear at the time 
 of the commission being taken out, seven years after the effects had 
 been sold by the assignees, was considered only as a common creditor, 
 and compelled to come in pro rata, his demand being a stale one (g), 
 
 A mortgagee who has paid the arrears of rent on a bankrupt's estate, 
 unless he has an order of the Court of Chancery to stand in the land- 
 lord's place, shall not be preferred to the creditors under the com- 
 mission (':), 
 
 Where on goods being sold under a distress for rent, a balance re- 
 mained in the hands of the constable, the tenant or his representative 
 could only come in for his proportion with the other creditors : if any 
 thing had remained in specie it might have been different, but in this 
 case the money was embezzled. 
 
 Assignees are net entitled to the benefit of a covenant for the renewal 
 of a lease (z). 
 
 The commissioners cannot assign a lease wherein a condition is con- 
 tained, making the lease void on the tenant committing an act of bank- 
 ruptcy whereon a commission shall issue : for such a proviso is legale 
 and the landlord may re-enter by virtue thereof (k). 
 
 i: has been determined, however, that the commissioners may assign 
 
 (a) i Ark. 104. (&) 5 Esp. 2CO. (V) Ibid. ioj. (,.') Cooke's 13. L. 223. 
 
 (<■) 1 Bro. 427. 1 Atk. 102, 103. (/) Ibid. 104. (g) Ibid. 103. (£) Ibid, 
 
 I 2 Vein. 96. (*} z T. R. 133. IJ Ves. J. 268.
 
 Chap. XII.] by Marriage, #c. 9.95 
 
 a lease granted to a bankrupt, in which there is a proviso that the lessee, 
 his executors, or administrators shall not assign without the lessor's con- 
 sent in writing (a). 
 
 An assignee of a bankrupt, a devisee, and a personal representative, 
 and one who purchases a term from the sheriff under an execution, are 
 assignees in law to the purpose of being liable to actions on a covenant 
 for rent in a lease to the bankrupt's devisor or intestate (£). 
 
 But the assignees of a bankrupt are not liable for the rent of premises 
 assigned to them by the commissioners, unless they take possession (c). 
 
 Neither are the assignees liable to an action of covenant for rent in ar- 
 rear, accrued subsequent to the bankruptcy of premises which had been 
 the bankrupt's (d). 
 
 Debt on the reddendum in a lease, will not lie against the lessee for rent 
 accrued after his bankruptcy, when he had ceased to occupy the pre- 
 mises, and the assignee is in possession under the commissioners' assign- 
 ment (<•). But the bankrupt's lessee, though cut of possession, is still 
 liable upon his covenant to pay the rent (/). 
 
 Whatever doubt mav have been at one time entertained, as to the 
 bankruptcy of the lessee being a bar to an action of covenant brought 
 against him (g), it is now settled that the bankruptcy of the defendant 
 cannot be pleaded in bar to an action of covenant for rent: for the 34 H. 8. 
 c. 4. /. 1. only assigns the interest of the bankrupt in the land, but does 
 not destroy the privity of contract between the lessor and lessee, where- 
 fore an action of covenant remains after the estate is gone, though gene- 
 rally speaking it is otherwise of the action of debt. Covenant is founded 
 on a privity collateral to the land (h). A covenant of this kind is mixed . 
 it is partly personal and partly dependant on the land ; it binds both the 
 person and the land : and this brings the case within the principle of 
 Mayor y. Steward (z), (in which case the dictum of Mr. J. Tates> that 
 as the bankrupt was divested of his whole estate, and rendered incapa- 
 ble of performing the covenants, it would be a hardship upon him if lie 
 should still remain liable to it, when he is disabled from performing it, 
 was clearly extra-judicial, though as proceeding from that excellent law- 
 yer, it was deserving of great weight.) 
 
 A right of action therefore, on a breach of covenant, not secured by 
 a penalty, and where the damages are to be recovered arc uncertain, is 
 not barred by the certificate of the defendant, who became a bankrupt 
 after the covenant was broken (£). 
 
 Indeed, it is extremely clear, that where a bankrupt has taken a lease 
 and entered into covenants for payment of rent and for repairing, tsc% 
 
 (.1) Cooke's B.I. . .370. Ambler, 48c. (l>) Doug. 1 84. (<•) 1 Esp. R.a3j. 
 
 Poke's Ca. 238. a H.B1. 319. (J) I Esp. R. 283. (.-) 8 East, 314. in note. 
 
 (/) 1 Hen. Black. 433. 4T.R.94. (g) I T. R. 86. (£) jH.Bi.433. 
 4T. B..94. s. c. t,;> 2 Eur. 3439, ( r ) £ ' r> &• 489.
 
 '29$ Of Changes happening [Chap. XII. 
 
 though the lease is taken from him and blended with the general mass 
 of his property and divided amongst his creditors, yet his certificate will 
 not deliver him from his liability to perform the covenants contained in 
 that lease (a) . 
 
 Changes by Insolvency. — Respecting the change made in the situation of 
 landlord or tenant by the insolvency of either of them, it is to be ob- 
 served that all interests in lands, and chattels real, must be inserted in 
 the schedule which is to contain an enumeration of the insolvent debtor's 
 estate and effects. 
 
 A conveyance to a creditor of an insolvent debtor's estate by the clerk 
 of the peace does not vest the estate in such creditor by relation either to 
 the date of the order or of the conveyance, but only from the actual 
 execution of such conveyance by the clerk of the peace. Therefore, 
 such creditor cannot recover in ejectment upon a demise laid before the 
 execution, though after the estate was out of the insolvent debtor, and 
 the order was made to convey the same to the lessor. Had another de- 
 mise by the clerk of the peace been laid, it would have obviated any in- 
 convenience which could have arisen in this case from die lessor's ig- 
 norance of the time at which the assignment was actually executed [b). 
 
 Where there is a bond with a penalty, and also a deed of covenant, 
 and the tenant takes the benefit of an Insolvent Act, whereby the bond 
 is discharged, he is still liable on any future breach of his covenant ; 
 unless specially saved by the statute (c). 
 
 Changes by Death. — The alteration that is effected by the death of the 
 landlord or tenant has reference to a devisee, or an executor or admini- 
 strator ; for as to the heir, he is out of question, as such, with respect 
 to a chattel interest. 
 
 By the statutes 32 and 34 H. 8. c. 1. s. 5. a man may devise all his 
 lands, tenements, and hereditaments, reversions and remainders. 
 
 Therefore, if one devise a reversion after an estate for life, or in tail, 
 and that comes to his possession, the land passes : and a general residuary 
 clause in a will carries a reversion. 
 
 So, by a devise of ground-rent on leases for years, the reversion 
 passes. So, a bequest of " leasehold ground-rents in S." passes the re- 
 versionary leasehold interest as well as the reserved rent (d). 
 
 If one bequeath his indenture of lease, his whole estate in the lease 
 passeth. So, if a termor of a house or land bequeath the same to B> 
 without expressing how long he should have it, he shall have the whol<J 
 term and number of years (V). 
 
 Under a bequest of the testator's interest in leaseholds, a renewed 
 lease obtained by his executrix was held to pass (/)• But a renewed 
 lease does not pass under the words " lease or premises" (g). 
 
 (a) 7 T. R. 580. (//) 2 Last's R. 257, («) Doug. 93. (<0 - Str - icac. 1 Br.R. 76. 
 (,) Went. Off. Ex. aji. CO 15 Ves. J. 2j6. (ff) 16 Vcs. J. 197, 199.
 
 Chap. XII.] by Marriage, &c. 297 
 
 Of Devisees. A devisee of the lands is entitled to all those chattel 
 
 interests which belong to the heir : and in one respect he has an advan- 
 tage to which the heir is not entitled. „ 
 
 Thus it has been holden, that if A. seised in fee of lands sow, and 
 devise it to B. for life, remainder to C. in fee, and die before severance. 
 B. shall have the emblements, and not the executor of A. Or that if 
 B. die before severance, his executor shaM not have them, but they shall 
 go to him in remainder. Or that if the devise be only to B. and B. die 
 before severance, there his executor shall have them (a). 
 
 A devisee of the goods, stock, and moveableSj is entitled to growing 
 corn in preference both to the devisee of the land, and the executor (b). 
 
 . A devisee is an assignee in law, and as such is liable to an action on a 
 covenant in a lease to pay rent, or on any other covenant that runs with 
 the land (c). 
 
 As he is liable to covenants that regard the reversion, so it is pre- 
 sumed he is capable of maintaining an action for the breach of such 
 covenants ; for by the common law, upon a covenant in law, the as- 
 signee of the estate shall have an action (cl). 
 
 A devisee therefore, is in the predicament of an ordinary assignee, by 
 whom an action lies upon every covenant that concerns the land ; as to 
 pay rent, not to do waste, &c. 
 
 The devisee of the equity of redemption, (the legal estate being in a 
 mortgagee) is not liable in covenant as assignee of all the estate, right, 
 title, and interest of the original covenantor (e). 
 
 An action of covenant does not lie upon the stat. of 3 IV. & M. 
 c. 14. against a devisee of land to recover damages for a breach of co- 
 venant made by the devisor, but the remedy thereby given, is confined 
 to cases where debt lies (f). 
 
 Executors and Administrators. — With respect to executors and admini- 
 strators, the executor or administrator shall have by virtue of his execu- 
 torship or administration, all the chattels real and personal of the testa- 
 tor ; as well those that are in possession, as leases for years of land, 
 rent, common, or the like, corn growing or cut, trees, and grass cut 
 and severed, as also those that are in action, as right and interest of ex- 
 ecution upon judgment, statutes, &c. ( < g-). 
 
 So, the executor or administrator of the lord shall have the fines as- 
 sessed upon the tenants upon their admittances in the lord's time (/;). 
 
 So, if I make a lease for life rendering rent, and the rent is behind, 
 and then I die ; in this case the arrearages of rent due tome in my life- 
 time shall go to my executor or administrator in the nature of a chat- 
 tel (i). 
 
 (<0 Toll. L. of Ex. & Ad. 157. [b) Ibid. '» Doug. 184. (d) Com. Dig. tit.. 
 
 " Covenant." (13. 3,) j» 3 East, 487, ',/) 7 East, 128. (g) Shep. Touch, 468. 
 
 (/;) Ibid. (/) Ibid.
 
 29S Of Changes happening [Ciiap. XII. 
 
 So, if a rent be granted out of land to me in fee-simple, fee-tail, for 
 life or years, and it be not paid to me in my lifetime, these ar- 
 rearages shall go to my executor or administrator, and not to any 
 other (a). 
 
 So, also, if a parson have an annuity in fee in right of his church, 
 and it be behind and the parson die : in this case the executor or admi- 
 nistrator, not the successor of the parson, shall have the arrear- 
 ages (b). 
 
 If I be seised of land and possessed of a flock of cattle, and let it to 
 another for years, and he covenant by the lease to pay me and my wife, 
 our heirs and assigns ioo/. per nun. during the term ; in this case, after 
 my death, and my wife surviving me, her executor or administrator, 
 and not my heir, shall have this payment (r). 
 
 So, if one make me a lease of land first for years, and then grant 
 me the trees for a number of years, to begin after the end of the term 
 of the land ; I have the trees in the nature of a chattel, and if I die, 
 my executor or administrator shall have them (cf). 
 
 So, if a lease lor years of land be granted to me and mv heirs, or to 
 me and my successors, and I die : my executor or administrator, and 
 not my heir, shall have the term (e). 
 
 The same law is, if a covenant or an obligation be made to me and 
 my heirs : for in these cases, this is still a chattel in me that shall go to 
 my executor or administrator, and he only shall take advantage of it : 
 and if my heir or successor happen to get the deed, the executor or ad- 
 ministrator may recover it from him (j ). 
 
 If a lease be made to me for twenty years, without naming my execu- 
 tors or administrators or assigns ; in this case, if I die, my executor 
 and administrator, notwithstanding, shall have it during the term (g). 
 
 So, if a lease for years be made to a bishop and his successors, and 
 he die, his executor or administrator, not his successor, shall have it (h). 
 
 If the lessee for life make a lease for years absolutely, this in law is a 
 lease for so many years if the life so long live, and shall go to the execu- 
 tor or administrator after his death (/). 
 
 In the case of a tenancy from year to year as long as both parties 
 please, if the tenant die intestate, his administrator has the same in- 
 terest in the land which his intestate had : for whatever chattel the in- 
 testate had must vest in his administrator as his legal representative (<•). 
 
 The charters and evidences that concern any of my chattels which 
 my executor or administrator is to have, shall go with the same chattels. 
 --So also any charters whatsoever, if they be pledged to nic for money, 
 shall go to my executGr or administrator until the money be paid (/). 
 
 (a) »hip.Tou-h. 468. fi) TbM 469. (c) Ibid. (^ Ibid. (/) llli. 
 
 (/) Ibi'i. (V) IbiJ. 4-0, (-'•) Ibid {i) !. ; ^» v'/ 3T. P.. l6« 
 
 (J) Shep. Touch, kj,
 
 Chap. XII.] by Marriage, fyc. ogg 
 
 Those deeds and evidences, that belong to the heir as incident to the 
 inheritance, shall not go to executor or administrator (a). 
 
 The executor or administrator shall not have the grass and trees grow- 
 ing on the ground, no more than the soil or ground itself whereon they 
 grow (b). 
 
 Neither is an administrator or executor entitled to pales, walls, stalks, 
 fish in ponds, deer, or conies in parks, pigeons in pigeon-houses, or 
 the like (c). 
 
 If a lease be made for life or years, of land, whereon a house is 
 standing, or timber is growing, and the house is prostrate or the tim- 
 ber is cut or fallen down (by whomsoever, or by what means soever it 
 be ;) the materials of this house and this timber are now become a chat- 
 tel : and therefore, if the lease be without impeachment of waste, it 
 shall go to the lessee, and after his death to his executor or administra- 
 tor ; but if the lease be otherwise, it shall go to the lessor, and after 
 his death to his executor or administrator. — But, if the timber be cut 
 for reparation only, or the lessee will employ the materials of the 
 house to build it again, and the lease continue,* it may be so 
 employed, and then the executor or administrator of the lessor may 
 not take it (//). 
 
 An executor or administrator regularly shall charge others for any 
 debt or duty due to the deceased, as the deceased himself might have 
 done -, and the same actions which the deceased might have had, 
 the same actions for the most part the executor or administrator may 
 have also (e). 
 
 Therefore he may have an action of account, upon the case, or 
 assumpsit, for use and occupation of his testator's or the intestate's 
 premises (f). 
 
 So, an action of ejectment will lie by the executor or administrator 
 for an ejectment of the testator out of a term (g). 
 
 An action of debt also, for rent behind in the lifetime of tlie 
 deceased, may be brought by his executor or administrator (/'") ; for 
 :f any rent or arrearages of rent be due to me upon a grant of rent 
 out of my land to me, or reservation of rent upon any estate made 
 by me of land ; in these cases, my executor or administrator may 
 have an action of debt for this rent, or he may distrain for it, so long as 
 the land that is chargeable with the rent, and out of which it issues, 
 is in his possession that ought to pay it, or in the possession of any 
 one that claims by or under him (i). 
 
 As an executor or administrator shall regularly charge others for any 
 debt or duty due to the deceased, so shall he be charged by others for 
 
 00 8 T. R. 592. & 2 Bl. Com. 418. 3 Yes. J. 212. (b) Shop. Touch. 169. (c) Ibid. 
 
 00 ibid. 471. 0) Idk1 - 4 Xi - (/) i' ^* \s) S ' K P' Touch. ;St. 
 
 ib) Ibid.. (/) Shcp. Touch, 482.
 
 300 Of Changes happening [Chap. XIL 
 
 any debt or duty due from the deceased, as the deceased himself might 
 have been charged in his lifetime, so far forth as he hath any of the 
 estate of the deceased to discharge the same (a). 
 
 Therefore, if a lease for years be made rendering rent, and the rent 
 is behind, and the lessee die; in this case the executor or administrator 
 of the lessee shall be charged for this rent (£). 
 
 So, also, if a lessee for years assign over his interest and die, his 
 executor or administrator shall be charged with the arrearages before 
 the assignment, but not with any of the arrearages due after the 
 assignment (c). 
 
 For if the testator die in possession of a term for years, it shall vest, 
 as before mentioned, in the executor ; and although it be worth 
 nothing he cannot waive it, for he must renounce the executorship in 
 toto, or not at all (//). But this is to be understood only where the 
 executor has assets, for he may relinquish the lease, if the property 
 be insufficient to pay the rent ; but in case there are assets to bear the 
 loss for some years, though not during the whole term, it seems the 
 executor is bound to continue tenant till the fund is exhausted, when, 
 on giving notice to the lessor, he may waive the possession. If, 
 however, he enter on the demised premises, as by his office he is 
 bound to do, the lessor may charge him by action of debt as assignee 
 in the debet and detinet for the rent incurred subsequent to his 
 entry (e). 
 
 If the profits of the land exceed the amount of the rent, as the law 
 prima facie supposes, such of the profits as are sufficient to make up 
 the rent shall be appropriated to the payment of the lessor, and cannot 
 be applied to any other purpose. Therefore, if in such case the lessor 
 bring an action against the executor for the rent, he cannot plead plene 
 admimstravity for that plea would confess a misapplication of the profits j 
 since no other payment out of them can be justified till the next be 
 answered (f). 
 
 On the other hand the profits of the land may be inadequate to the 
 rent. In a variety of cases, they may be easily supposed insufficient 
 for a given period, although the lease may on the whole be beneficial : 
 as in respect to rent for the occupation of premises from Michaelmas to 
 Lady Day especially, where almost the whole profit is taken in the 
 summer; as in the case of a lease of tithes, or of meadow grounds, 
 which are usually flooded in the winter. So, the profits for a series of 
 years may be less than the amount of the rent, 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 (g). 
 
 (a) Shep. Touch. 482. (b) Ibid. 48;,. (c) Ibid. (d) Toll. L.of Ex. & Ad, 109. 
 
 («•) Went. Off. of Ex. 130. (/) Toll. L. of Ex. St Ad. 320. ( s ) Ibid.
 
 Chap. XII.] by Marriage, eye. 301 
 
 In these raid the like instances, the executor is personally liable only 
 to the extent of the profits, and for such proportion of the rent as 
 shall exceed the profits, is chargeable merely in the capacity of exe- 
 cutor, or, in other words, as far only as he has assets : and in such 
 case, to an action brought by the lessor against him in the debet and 
 detinety he must disclose the matter by special pleading, and pray judg- 
 ment whether he shall be charged otherwise than in the detinet only, for 
 more than the actual profits (a). 
 
 Thus the profits of the land are to be applied by the executor, in 
 the first place, to the discharge of the rent, and if that fund prove in- 
 sufficient, the residue of the rent is payable out of the general assets, 
 and stands on the same footing with other debts by specialty : 
 and this whether the rent reserved be by lease, in writing, or by 
 parol (b). 
 
 But an executor or administrator shall not charge another, or have 
 any action against him for a personal wrong done to the testator, 
 when the wrong done to his person or that which is his, is of that 
 nature as for which damages only are to be recovered ; therefore, 
 an executor or administrator cannot sue another for a trespass done 
 to him in his cattle, grass, or corn, or for waste done by his 
 tenant in his lands ; for these are said to be personal actions which 
 die with the person, according to the rule, actio personalis moritur cum 
 persona (r). 
 
 So, an executor or administrator shall not be charged for any per- 
 sonal wrong done by the deceased, and therefore no action may be 
 brought against him for any such cause ; as for cutting down trees, or 
 for suffering his cattle to eat up the plaintiff's grass (d), 
 
 An action for use and occupation by the deceased, however, may 
 perhaps be maintained against his executor or administrator. 
 
 Touching the cases in which executors or administrators are affected 
 by the covenants made by or in favour of their testators and intestates. 
 An action for the breach of a covenant made to the deceased lies for 
 an executor or administrator ; so, for a covenant broken in the life- 
 time of the testator, the executor, and not the heir or assignee, 
 shall have the action of covenant (f), although (it is said) it were a 
 covenant real, (as to use the land in an husbandman-like manner), 
 which runs with the land ; and the damages shall be recovered 
 by the executor, though not named, as he personally represents the 
 testator (/). 
 
 Yet where the lessee covenanted to repair, and to leave the premises 
 in repair, it was held (in a case long prior to that last quoted from 
 Eip. N. P.) that the heir should have an action of covenant on this, 
 
 (.7) Toll. L. of Ex. & Ad. 220. (A) Ibid. (c) Shep. Touch. 4S3. (J) Ibid. 484. 
 
 (e) Shep. Touch. 481. 2 Lev. 26. Vent. 17,5. (/) Esp. N. P. ZCtf.
 
 302 Of Changes happening [Chap. XI f. 
 
 though not named : for it was a covenant which runs with the estate, 
 and so should go with the reversion to the heir (a). 
 
 The distinction taken (if any subsists) is perhaps by reason of the 
 one injury not savouring of waste, and the other savouring of waste ; 
 for remedies for waste regard the reversion, and therefore lie with the 
 heir ; or it may be that the remedy for breach of covenant to repair is 
 given to the heir, because his personal comfort and convenience arc 
 abridged by such a breach, which cannot occur to one deceased ; 
 whereas a covenant to use land in a husbandman-like manner, and to 
 leave it in such condition, regards rather the temporal interest than the 
 personal comfort of the covenantee. 
 
 Executors shall also have a writ of covenant of a covenant made to 
 their ancestors for a personal thing. Yet according to The Touchstone 
 where the covenant is but personal, as where one makes a lease for 
 years, and the lessor covenants to pay the quit-rents, but he does not 
 say during the term, by this it seems the executor or administrator of 
 the lessor shall not be charged (b). 
 
 If the lessor covenants with the lessee to make him a new lease 
 at the end of his term, and the lessee dies, his executor may have 
 covenant on this, though not named (c). 
 
 Executors or administrators who come to any term of lands or 
 tenements, as such, are bound by the covenants which run with 
 the estate, as belonging to the personal property of the testator or 
 intestate (//). 
 
 Where lands come to an executor or administrator, he may be 
 charged for a breach in his own time, as for non-payment of rent, or 
 with an action of covenant, either in that right or as assignee; but 
 there is this difference (<°). If declared against as assignee, he is 
 chargeable as ter-tenant, or one who hath the actual possession of 
 the land, and the judgment is cle bonis proprus {f). But if the action 
 be brought against him as executor or administrator, the judgment 
 shall be dc boms testatoris, even where the breach has been committed 
 in his own time, as for repairs, Is'c. for it is the testator's covenant 
 which binds the executor, as representing him, and he therefore must 
 be sued by that name (g). 
 
 Covenant lies by the lessor against the administrator of the assignee 
 of the lessee, against whom he may declare as assignee, for breach of a 
 covenant that runs with the land (h). 
 
 If a covenant by two lessees be joint and several, it shall bind 
 Hie executors of the deceased lessee, v. en though he died before the 
 
 o 
 
 (j; a Lev. 9*. Sk:n: . ~Jj. s. -. i Njlk. J41. 
 (4) FiU. Nat. Brev. 145. (D.) Bro. tit. •' Covenar,'.. IZ . Shcp. Touch. 482. 
 (.<•) Plovvd. Com. 286. (,/) Hob. tdB. to Mod. [i2.1 1 Salk. 37. s. c (-, 1 V, T lh. 4. 
 
 (/} 1 S,,lk. 300. (-) Ibid. Hob, 188. Cro. Jac, {■;■ 1. (' ) Bull N. P. J 59- Esp. N. P. 290- 
 
 4
 
 Chap. XII.] by Marriage, §c. 303 
 
 term commenced, and the whole term, interest and benefit survive to 
 the other lessee (<?). 
 
 If a man covenant for himself only to pay money, build a house for 
 quiet enjoying, or the like, and he doth not say in the covenant " his 
 executors and administrators," yet hereby his executors and admini- 
 strators are bound and shall be charged (b). 
 
 Yet if a lessee for years covenant for himself to repair the 
 houses demised, omitting other words, it seems in tins case he is 
 bound to repair only during his life, and the executors and administrators 
 are not bound (<;). 
 
 But upon a covenant implied, an action of covenant (it is said) will 
 not He against an executor (d). 
 
 (a) % Bur. rig-. (b) Sbn. T-jisch. 178. (.] IKl. (J) Ibid.
 
 [ 304 ] 
 
 CHAPTER XIII. 
 
 Of the Remedies for and against Landlord and Tenant. 
 
 First. Of Remedies for Landlord for Recovery of Rent. 
 
 Section I. By Distress ; wherein of Pound-Breach and 
 
 Rescue. 
 
 Section II. Action of Debt ; where the Lease is by 
 
 Deed. 
 
 Section III. Covenant ; where the Lease is by Deed. 
 
 Section IV. Debt, or Assumpsit; for Use and Occu- 
 pation. 
 
 Section I. Landlord's Remedy for Rent by Distress, 
 
 L F the various remedies which the law affords to die landlord for 
 the recovery of rent from his tenant, that by distress, as being 
 the most ancient, and one most summary in its nature, and there/ore 
 most commonly resorted to, first claims our consideration. — It is 
 recommended, in preference to others, by Lord Coke, as the most 
 plain and certain: and the statute 2 IV. 3. sess. 1. c. 5. recognizes 
 it as <; the most ordinary and ready way for recovery of arrears of 
 rent (V?). 
 
 Distress -Lvhni.—A. distress, districtio, is the taking of a personal 
 chattel out of the possession of the wrong deer into the custody, of 
 the party injured, to procure a satisfaction for the wrong committed. 
 The thing itself taken by this process is also frequently called a 
 distress (0). 
 
 Lies fir ivhat ? — A distress is not an action, but a remedy without 
 suit, Zs'c. and was a remedy given to the lord, to recover the rent or 
 services which the tenant had obliged himself by his feudal contract to 
 
 (a) Co. Lit. 1C2.D. U] ; El. Com. 0.
 
 .Sect. I.J Remedy for Rent by Distress. 305 
 
 pay by way of retribution for his farm; for rent is considered as a 
 retribution for the land, and is therefore payable to those who would 
 otherwise have had the land (a). 
 
 For all services a distress may be made of common right ; for 
 distresses were incident by the common law to every rent-service, 
 and by particular reservation to rent charges also, but not to rent- 
 seek, till the stat. 4 G. 2. c. 28. extended the same remedy to all 
 rents alike, and thereby in effect abolished all material distinction 
 between them (Z>). 
 
 So that now we may lay it down as an universal principle, that a 
 distress may be taken for any kind of rent in arrear; the detention 
 where of beyond the day of payment is an injury to him that is entitled 
 to receive it (c). 
 
 By whom Distress may be made. — Therefore, if a person seised in fee 
 grants out a lesser estate, saving the reversion of rent, or other services, 
 the law gives him, without any express provision, remedy for sueh 
 rent or services by distress (</). 
 
 But for a rent which issues out of an incorporeal inheritance, the 
 reversioner cannot distrain ; as if I have a right of common in another 
 m-c-.n's soil, and I grant it to A. reserving rent, if the rent be behind, 
 I cannot distrain the beasts of A. because that the right of common, 
 which every man has, runs through the whole common. — The king 
 however is an exception to this rule, for he by his prerogative can dis- 
 train upon all the lands of his lessee. 
 
 So, a man cannot distrain for rent issuing out of tithes, because 
 there is no place where the distress can be taken. 
 
 A person who has not the reversion cannot distrain of common 
 right ; but he may reserve to himself a power of distraining, or 
 the reservation may be good to bind the lessee by way of con- 
 tract, for the performance whereof the lessor may have an action 
 of debt [e). 
 
 Thus if the assignee of a term surrenders to the original lessor, 
 though he reserves a sum in gross to be paid annually, he cannot dis- 
 train for that or the original rent, but he may have an action of assumpsit 
 for such sum in gross (J )- 
 
 So, if a lessee for years assign his term rendering rent, he cannot 
 distrain for it without a particular clause for that purpose, because he 
 has no reversionary interest ; the only remedy that the assignor ha::, 
 is by an action on his contract. 
 
 If under an agreement for a lease at a certain rent the tenant is let 
 into possession before the lease is executed, the lessor cannot during 
 
 (a) Giib. L. of Dis. 1. Co. Lit. n. i. ('; Com. Dig. tit. " Distress." (A. i.) 
 
 (c) 3 Bl. Com. 6. (0 Gilo. I., of Diet. 28. 
 
 (0 Gilb. L. of Disc. (/) i T. R. 441. 
 
 X
 
 306 Remedy for Rent by Distress. [Chap. XIII. 
 
 the first year distrain for rent ; for there is no demise express or 
 implied (<?). 
 
 A devisee may distrain for rent devised to him out of the lands, if 
 the land is charged with a distress, and not otherwise. 
 
 For a rent granted for equality of partition by one coparcener to 
 another, or for a rent granted to a widow out of lands whereof she is 
 dowab'e in lieu of dower, or tor a rent granted in lieu of lands upon 
 an exchange, the grantee may distrain without any provision of the 
 parties, though lie has no reversion; the law giving him a distress in 
 these cased, lest the grantee should be without remedy. 
 
 But if a man grants rent over to another, after arrearages incurred, 
 he cannot distrain for such arrearages ; because they are by the grant 
 divided from the freehold of the rent. 
 
 If a person enter upon certain premises subject to the approbation 
 of the landlord, who afterwards does not approve ; but upon an agree- 
 ment that the tenant will pay an advanced rent as well for the time he 
 had' been in possession, as for the future, the landlord was willing to 
 let him continue in possession : in such case, the landlord may distrain 
 for the advanced rent accrued before the agreement as well as for what 
 accrues afterwards, such agreement giving him the same power by 
 relation to his tenant's first entry into possession, as it did to recover 
 his rent in future. 
 
 So, a mortgagee, after giving notice of the mortgage to the tenant 
 in possession, under a lease prior to the mortgage, may distrain for 
 the rent in arrear at the time of the notice, (although he was not in 
 the actual seisin of the premises or in the receipt of the rents 
 and profits at the time it became due) as well as for rent which 
 may accrue after such notice : the legal title to the rent being in the 
 mortgagee. 
 
 A receiver appointed by the Court of Chancery may distrain fo; 
 rent, where he sees it necessary, and. need not app.iy first to that court 
 for a particular order for the purpose; because, as that court never 
 makes an immediate order, but appoints a future day for a tenant to pay, 
 it might be an injury to the estate to wait - till that time, as it would 
 give the tenant an opportunity to convey his goods off the premises in 
 the mean time. — If, however, there is any doubt who lias the leg: - '' 
 right to the rent, then the receiver should make an application to that 
 court for an order; a* he must distrain in the name of the person who 
 has that right. 
 
 One joint-tenant may distrain alone; but then lie must avow in hi- 
 own right and as bailiff to the other (/>). 
 
 One tenant in common may distrain for his share of the rent upon 
 
 fj) j Mod. 
 
 7
 
 Sect. I.] Remedy for Rent by Distress. SO? 
 
 the terre-tenant holding under him and another tenant in common 
 where such terre-tenant has paid the whole rent to the other tenant in 
 common after notice not so to pay it [a). 
 
 A man may distrain cattle without any express authority, and if he 
 obtain the assent of the person in whose right he did distrain, his 
 assent will be as effectual as his command could have been •, for such 
 assent shall have relation to the time of the distress taken (b). 
 
 By the common law the executors or administrators of a man seised 
 cf a rent-service, rent-charge, rent-seek, or a fee-farm, in fee-simple, 
 or fee-tail, could not distrain for the arrearages incurred in the lifetime 
 cf the owner of such rents. 
 
 It was, therefore, enacted by stat. 32 H, 8. c. 37. s. T. That the 
 executors and administrators of tenants in fee, fee-tail, or for term of 
 life, for rent-services, rent-charges, rent-seek, and fee-farms, may- 
 distrain upon the lands chargeable with the payment thereof, so long 
 as such lands remain in the possession of the tenant who ought to 
 have paid such rent or fee-farm, or of any other person claiming under 
 him by purchase, gifc, or descent. 
 
 By section 3. of the same statute it is enacted, that if a man 
 hath in right of his wife any estate in fee-simple, fee-tail, or for term of 
 life, or of or in any rents or fee-farms, and the same rents or fee-farms 
 shall be due and unpaid at the death of his wife, such husband may 
 distrain for the said arrearages in the same manner as if his wife had 
 been living. 
 
 By section 4. it is enacted, That if any person have such rents or 
 fee -farms for term of life or lives of other persons, he, his executors 
 or administrators, may distrain for arrearages of such rent incurred at 
 the death of the cestui que vie, in the same manner as if such cestui que 
 vie had been still living. 
 
 This statute is a remedial law, and extends to the executors of all 
 tenants for life, as well to those executors who before the statute were 
 entitled to an action of debt, as to those who had no remedy what- 
 ever (c) : so that Lord Cake's idea that the preamble concerning the 
 executors and administrators of tenant for life is to be intended cf 
 tenant pur auter vie so long as cestui que vie lives, seems to be too 
 narrow (d). 
 
 But where a tenant for life cf a rent-charge confessed a judgment 
 which was extended by elegit, and the tenant for life dying, the conusee 
 distrained, and in replevin avowed for the arrears incurred in the life- 
 time of the tenant for life, upon demurrer the distress was holden to be bad 
 snd not warranted by the statute : first, because the case of the conusee 
 
 (a) 5 T. R. 246. (*) Gilb. L. cf D-st, 33. 
 
 (.-) l Ld. Rayai. 17%. 3 Sail:. 136. (d) Cc. Ux, 16%. b. 
 
 X 2
 
 303 Remedy for Rent b\j Distress. [Chap. XIII. 
 
 is no', enumerated In if, secondly, because he comes in in the post, and 
 not under the tenant for life (a). 
 
 Neither is the executor of a grantee cf a rent-charge for divers years, 
 if he zo long live, within the statute (£). 
 
 Lord Cols says, if a man makes a lease for life, or a gift in tail 
 reserving rent, this is a rent-service within the statute ; from whence 
 it may be inferred that he thought that a rent reserved upon a lease for 
 year-, was not within it, and I apprehend that it is not; for the land- 
 lord is not tenant in fee, fee-tail, or for life, of such a rent, and it is 
 the executors of such tenants only who are mentioned in the Act. 
 However, in trespass, where it appeared that the defendant had dis- 
 trained the plaintiff's goods for rent due to ills testator upon a lease for 
 years, Lord C. J. Lee held it to be within the statute, and the de- 
 fendant obtained a verdict (c). 
 
 This statute docs not extend to copyhold rents, but only to rents out 
 of free-land (d). 
 
 What things are distrainakle . — With respect to the things which may 
 be taken under this process, a distress being antiently considered 
 merely as a pledge in the hands of the lord to compel the tenant to 
 pay the service, or perform the duty, could not at common law- be 
 sold, but was to be restored in the same plight to the owner when 
 such service ov duty was performed, and nothing could be distrained 
 unless it could be returned in specie and undamaged. It follows, that 
 money cannot be distrained unless it be in a bag, for then it may be 
 identified perhaps; so milk, fruit, £sV. cannot be distrained; nor, till 
 made distrainable by statute, could hay or sheaves of corn be the subject 
 of a distress, unless they were in a cart (e). 
 
 As to the things, however, which may be distrained or taken in 
 distress, we may lay it down as a general rule, that all chattels 
 personal are liable to be distrained, unless particularly protected or 
 exempted (f). 
 
 By stat. 2 W. 3. c. 5. it is enacted, That it shall be lawful for any, 
 having arrear of rent, to seize and secure any sheaves or cocks of 
 corn, or corn loose or in the straw, or hay being in any barn or 
 granary, or upon any hovel, stack, or rick, or otherwise upon any part 
 of the land or ground charged with such rent, and to lock up or detain 
 the same in the place where the same shall be found, until the same- 
 shall be replevied, or sold. 
 
 By stat. 11 G. 2. c. 19. s. 8. the landlord may take and seize, 
 as a distress for arrears of rent, all sorts of corn and grass, hops, 
 root?, fruits, pulse, or other product whatsoever, growing upon 
 
 (,, I:/!!. X. P. r(, !i) Ibid, r- (c) (bid. 
 
 , ■,'.:. 1;?. (.) Glib. L. ofDisr. 34, kc. (/) 3 EI. C -.. -.
 
 Sect. I.] Remedy for Rent by Distress. S09 
 
 any part of the estate demised ; and the same may cut, gather, make, 
 cure, carry and lay up, when ripe, in the barns, or other proper 
 place on the premises ; and if there should be no barn or other 
 place on the premises, then in any other barn or proper place which 
 he shall procure, as near as may be to the premises ; and in con- 
 venient time appraise, sell, or otherwise dispose of the same towards 
 satisfaction of the rent and of the charges cf such distress, appraise- 
 ment, and sale ; the appraisement thereof to be taken when cut, 
 gathered, cured, and made, and not before: provided always, (sec. 9 ) 
 that notice of the place where such distress shall be lodged, shall, 
 in one week after the lodging thereof, be given to the tenant, or left 
 at the last place of his abode ; and that if the tenant shall pay or 
 tender the arrears of rent and costs of the distress before the corn, 
 &c. be cut, the distress shall cease, and the corn, ifc. be de- 
 livered up. 
 
 The tools and utensils of a man's trade cannot be distrained while 
 there is any other distress on the premises, cr even while they are in 
 actual use : therefore the axe of a carpenter, the books of a scholar, 
 and the like, are not distrainable while any other distress can be had, 
 or while they are in actual use (<?). 
 
 Thus, in trover for a stocking loom which had been distrained for 
 rent, where it appeared that an apprentice was using the loom at the 
 time it was taken, the Court held that it could not legally be taken 
 while the apprentice was using it. 
 
 But in trover for three tape-looms, where it appeared that they 
 had been distrained for rent, because there was no other sufficient dis- 
 tress upon the premises, the Court held the distress good, as it did 
 not appear that the looms v/ere in actual use at the time they were 
 taken. 
 
 Lest this rule, however, should be carried so far as to privilege the 
 sheep of the tenant, and the beasts of the plough, (they being the 
 materials of husbandry, to plough and manure the land), and by that 
 means the landlord be totally disappointed of the rents, this matter has 
 been settled by the statute de districtione scaccarii, 51 H. 3. it 4 which 
 is in affirmance of the common law, and enacts that no man shall be 
 distrained by the beasts of his plough or his sheep, either by the king 
 or any other, while there is another sufficient distress ; unless indeed 
 for damage feasant, in which case the thing that does the trespass must 
 make compensation 
 
 Note. In an action on the above-mentioned statute, it is not neces- 
 sary to shew that there was a sufficient distress, prater^ i : c. but it 
 must come on the other part, viz* to plead that there was not a 
 
 (a) Gill. L. of Diit. 2> c h &e.
 
 310 Remedy for Rent by Distress. [Chop. XIII. 
 
 sufficient distress, prater, ire It must be intended that there was 
 cattle sufficient at the time of the distress, and it is not material what 
 was before or after. 
 
 The rule of the common law, which exempts utensils, tools, instru- 
 ments oi husbandry, tsV. from distress, has been adjudged to hold 
 as to distresses for rent arreav, amerciaments, Ifc. not for poor's rates, 
 cf>. which are out of present consideration, and are noticed in Chap. 
 VIII. Sec. Ill, 
 
 The general rale of law is, that all things upon the premises are 
 liable to the landlord's distress for rent, whether they be the effects of 
 a tenant cr of a stranger; because of the lien which the landlord has 
 c;i them in respect of the place where the goods are found, and not in 
 respect of the person to whom they belong. 
 
 But this rule has many exceptions in favour of trade, to protect the 
 goods of third persons which happen to be upon the tenant's premises 
 in the way of his trade; therefore things sent to public places of trade, 
 as cloth in a taylor's shop, yarn in a weaver's, a horse in a smith's, 
 and the like, are not distrainable. 
 
 A gentleman's chariot standing in a coach-house belonging to a 
 livery-stable keeper, is, it seems, liable to a distress ; for that there is 
 not a shadow of legal claim to the exemption. 
 
 But if a horse goes with yarn, &c. to a weaver, ts'c. or fetches yarn 
 from thence and carries it to a private house to be weighed, and it is 
 hung there till the yarn be weighed, neither the horse nor yarn can be 
 distrained. 
 
 So, a horse that brings corn to market, and is put into a private 
 yard while the corn is selling, cannot be distrained ; because the bring- 
 ing of the corn there is in the way of trade, and consequently of public 
 benefit. 
 
 So, goods in the possession of a common carrier are protected from 
 distress for the benefit of trade ; as if they be delivered to him to put 
 into a waggon in a private barn. 
 
 Neither can the horse on which I am riding be distrained; for it is 
 in use. 
 
 Nor can wearing apparel if in use be distrained ; but wearing apparel 
 not in use is distrainable for rentn). 
 
 The goods of a tenant are liable for a year's rent notwithstanding 
 outlawry in a civil suit. 
 
 Therefore, where a sheriff's officer, being in possession of the 
 tenant's effects under an outlawry, made a distress for rent, sold the 
 goods distrained, and afterwards the outlawry was reversed : the 
 officer was held liable to pay the produce of the goods in an action 
 
 > i Esp R, ;c6
 
 Sect. I.] Remedy for Rent by Distress. 311 
 
 for money had and received ; for they were not in custodia legis, the 
 
 judgment being mere waste paper. If during the time that he was 
 in possession under the outlawry, he was put to any expence in reap- 
 ing and getting in the crops, he may maintain an action against the 
 tenant to recover those expences, — Even if the outlawry had not been 
 reversed, the landlord would have been entitled to a year's rent, 
 because capias ntlagatum at the suit of the party is to be considered only 
 as a private execution (a). 
 
 But sect. 8. of the stat. 11 G. 2. c. 19. every landlord may take 
 and seize, as a distress for arrears of rent, any cattle or stock of 
 his tenant feeding or depasturing upon any common appendant or 
 appurtenant, or any ways belonging to any part of the premises 
 demised. 
 
 It seems to be now settled, that where beasts escape, and come 
 upon land by the negligence or default of their owner, and are tres- 
 passers there, they may be distrained immediately by the landlord for 
 rent arrcar (£). 
 
 But where they come upon laud by the insufficiency of fences, 
 which the tenant, being a lessee, ought to repair, the lessor cannot 
 distrain such beasts, till they have been levant and couchant, and after 
 that actual notice has been given to the owner that they are there, and 
 he has afterwards neglected to remove them. But such notice, it is 
 said, is not necessary where the distress is by the lord of the fee for an 
 antient rent, or by the grantee of a rent-charge. 
 
 Therefore, where a stranger puts in his beasts to graze for a night 
 by the consent of the lessor and licence of the lessee, yet the lessor 
 may distrain them for rent due out of those lands which he consented 
 that the beasts should graze on-, because such consent was no waiver 
 of his right to distrain, unless it had been expressly agreed so; for 
 being but a parol agreement, it could not alter the original contract 
 between the lessor and lessee, from which the power to distrain arises. 
 The circumstance of the beasts being on the road to market does not 
 privilege them from the distress. 
 
 As to cattle, therefore, the safest way is to drive, them to a 
 public inn; for an inn being publici juris, and every man having 
 a right to put up at it, the cattle and goods of a guest are not distrain- 
 able there. 
 
 The privilege which exempts cattle and goods from being distrained 
 at an inn, arises from the circumstance of their being there by authority 
 of law •, for common inns are so much devoted to the public service that 
 their owners are obliged to receive all guests and horses that conic to 
 them for reception. 
 
 {a) 1 T. R, J?;,, 4, 5. '', Gi'.b, L. ofDist. 45, &c,
 
 312 Remedy for Rent by Distress. [Chap. XIIL 
 
 But the cattle or goods must be actually within the premises of the 
 inn itself, to be exempted from distress, and not in any place to which 
 the tenant may have removed them for his convenience : for where a 
 race-horse was distrained for rent at a stable half a mile distant from the 
 inn, the distress was determined to be a good one, and that the plaintiff 
 had no remedy but against the innkeeper. 
 
 But if fraud be used to obtain this remedy, a court of equity will af- 
 ford relief. 
 
 Thus, where the servants of a grazier driving a flock of sheep to 
 London were encouraged by an innkeeper to put the sheep into pasture 
 grounds belonging to the inn, and the landlord seeing the sheep, con- 
 sented that they should stay there for one night, and then distrained 
 them for rent, the grazier was relieved against the distress (a). 
 
 It has been thought by the Court of Chancery, that the grounds used 
 with an inn ought to have the same privilege as the inn itself, and 
 therefore that the cattle of strangers or passengers ought not to be dis- 
 trained there. 
 
 This privilege also extends, it seems, only to temporary guests •, for a 
 person who hires an unfurnished room in an inn, by such hiring, be- 
 comes an under-tenant, and any furniture that he may have brought into 
 such room must be liable to the landlord's distress. A landlord may dis- 
 train for the rent of ready furnished lodgings {b). 
 
 In a case where a rent-charge had been in arrear for twenty years, 
 and cattle escaping out of the adjoining grounds, had been distrained 
 for the arrears, the distress was relieved against in equity. — For a rent- 
 charge the grantee cannot distrain a stranger's beasts until they are levant 
 and couchant: for this rent does not stand upon a feudal title, as rent-ser- 
 vice does, but is said to be against common right : wherefore the 
 stranger's beasts must be so long resident on the lands out of w hich the 
 rent-charge issues, that notice may be presumed to the owner of them; 
 that is, they must be lying down and rising up on the premises for a 
 night and a day without pursuit made by the owner of them. 
 
 "Whatever is part of the freehold is exempted from distress, for that 
 which is part of the freehold cannot be severed from it without detri- 
 ment to the thing itself in the removal; consequently it cannot be such 
 a pledge as may be restored in the same condition to the owner : besides 
 that which is fixed to the freehold is part of the thing demised ; those 
 things therefore that favour of the reality are not distrainable. 
 
 This privilege extends to such things as the tenant will not be per- 
 mitted on any consideration to remove with him from the premises by 
 reason of their being annexed to and considered as part of the freehold, 
 and not because they are absolutely affixed to the freehold and cannot 
 
 (j) Free. Ch. "■ (A) Z Bos. Pull. N. R. 2 24=
 
 Sect. I.] Remedy for Rent by Distress. 313 
 
 be moved therefrom ; for a temporary removal of them for purposes 
 of necessity is not sufficient to destroy the privilege. 
 
 Thus, a smith's anvil on which he works is not distrainable •, for it is 
 accounted part of the forge, though it be not actually fixed by nails to 
 the shop. 
 
 So, a millstone is not distrainable, though it be removed out of its 
 proper place in order to be picked ; because such removal is of necessity, 
 and the stone still continues to be part of the mill. 
 
 That which is in the hands and actual occupation of another cannot be 
 distrained ; for that cannot be a pledge to me of which another has the 
 actual use (a). 
 
 So, wearing apparel cannot be distrained whilst on the person of the 
 owner ; but if taken off, though merely for the purpose of natural re- 
 pose, it may be distrained, upon the principle of not being in ac- 
 tual use. 
 
 Goods in the custody of the law are not distrainable ; for it is ex vi 
 termini repugnant that it should be lawful to take goods out of the cus- 
 tody of the law ; and that cannot be a pledge to me which I cannot re- 
 duce into my actual possession. 
 
 Therefore goods distrained for damage feasant cannot be taken for 
 rent ; nor goods in a bailiff's hands under an execution ; nor goods 
 seized by process at the suit of the king, or taken under an attachment .- 
 nor will a replevin lie for them. 
 
 Neither can goods be distrained which have been sold under execution 
 of a writ of fieri facias, but so circumstanced that it has not been pro- 
 per to remove them from the premises. Thus, where a tenant's corn 
 while growing was seized and sold under a fi. fa. and the vendee per- 
 mitted it to remain till it was ripe and then cut it, after which, and before 
 it was fit to be carried, the landlord distrained it for rent, both the 
 Courts of K. B. and C. P. held that it was not distrainable. But where 
 corn was taken in execution and sold by the sheriff under the stat. 2 TV. 
 & M. c. 5. s. 3. and the vendee permitted it after severance to lie on 
 the ground, the Court held it to be distrainable for rent. 
 
 A landlord having a legal right to distrain goods while they remain 
 on the premises, the issuing a commission of bankrupt against the te- 
 nant, and the messenger's possession of the goods of the tenant, will 
 not hinder him from distraining for rent ; and the assignment by the 
 commissioners of the bankrupt's estate and effects is only changing the 
 property of the goods, which while on the premises remain liable to be 
 distrained. 
 
 But if the landlord neglects to distrain, and suffers the goods to be 
 sold by the assignees, he can only come in pro rata with the rest of the 
 creditors. 
 
 00 Ante 3 36.
 
 314 Remedy for Rent by Distress. [Chap. XIII. 
 
 In some cases the distress itself is not protected even from a sub- 
 sequent process: thus where the question was, whether goods were not 
 liable to be seized on an immediate extent for the king's own debt, after 
 a distress had been taken of the same goods by a landlord for rent justly 
 due. to him, before an actual sale of the goods ? the Court of the Ex- 
 chequer determined that the extent took place of the landlord's claim 
 for rent, upon the authority of a much stronger case which had been 
 before determined in that Court, in which the time for the sale had ex- 
 pired, and an attachment had been moved for against the sheriff, for not 
 having executed the writ of venditioni exponas. 
 
 But if a replevin come after goods are sold on the execution, the 
 defendant must claim property •, for then they are out of the custody of 
 the law, and in die hands of a private person. 
 
 Lastly, as every tiling which is distrained is presumed to be the pro- 
 perty of the wrong doer, it follows that such things wherein no man 
 can have an absolute and valuable property, as dogs, ca,.s, rabbits, and 
 all animals ferte natura, cannot be distrained. 
 
 Yet if deer, which are fera. natura, are kept in a private enclosure 
 for the purpose of sale or profit, this so far changes their nature, by re- 
 ducing them to a kind of stock or merchandise, that they may be dis- 
 trained for rent. 
 
 When we speak of chattels not distrainablc, it must be understood 
 with reference to the subject of this chapter, namely, as a remedy for 
 the recovery of rent ; for all chattels whatever are distrainable damage 
 feasant, it being but natural justice that whatever doth the injury should 
 be a pledge to make compensation for it. 
 
 Where a wrongful distress is made, and the party whose goods are so 
 distrained pays money in order to redeem them, he may maintain trover 
 against the wrong doer (a). 
 
 Distress, when, where, and how made. — With respect to the time, place, 
 and manner of making a distress, it is to be observed, that, a distress 
 for rent cannot be made in the night, [which season is said to be from 
 after sun-set till sun-rise,] because the tenant hath not thereby notice to 
 make a tender of his rent, which possibly he might do in order to pre- 
 vent the impounding of his cattle (b). - 
 
 The distress for rent must be for rent in arrear ; therefore it may not 
 be made the same day on which the rent becomes due, for if the rent be 
 paid at any time during that day, whilst a man can see to count it, the 
 payment is good. Strictly indeed the rent is demandable and payable 
 before the time of sun-set of the day whereon it is reserved: yet it is 
 not due till the last minute of the natural day, for if the lessor die after 
 sun-set, and before midnight, the rent shall go to the heir, and not to 
 the executor. 
 
 (<0 6 T. R. 29%. (b) Gilb, L. of Dist. 56, &c.
 
 Sect. I.] Remedy for Rent by Distress. 315 
 
 But the custom of a place, or an agreement between the landlord and 
 tenant, if there be no objection to it in point of law, may empower the 
 landlord to distrain for it earlier, for conventio vincit legem. 
 
 Therefore if a trader, after committing an act of bankruptcy, take a 
 shop, and agree to pay a year's rent in advance, where by the custom 
 of the country half a year's rent becomes due on the day on which the 
 tenant, enters, the landlord after an assignment under the commission, 
 and before the year be expired, may distrain goods on the premises for 
 half a year's rent, or if he buy the tenant's goods, he may retain the 
 amount of the half year's rent. 
 
 A distress must not be after tender of payment, for if the landlord 
 come to distrain the goods of his tenant for rent, the tenant may, be- 
 fore the distress, tender the arrearages, and if the distress be afterwards 
 taken, it is illegal. So, if the landlord have distrained, and the tenant 
 make a tender of the arrearages before the impounding of the distress, 
 the landlord ought to deliver up the distress, and if he does not, the de- 
 tainer is unlawful. 
 
 But tender of rent after distress is impounded, is insufficient, for 
 then it is in the custody of the law (a). 
 
 An action on the case will not lie for detaining cattle distrained and 
 impounded, where a tender of amends was not made till after the im- 
 pounding •, and comme semble such an action could not be supported, even 
 if the tender of amends had been made before the impounding ; as the 
 proper mode of trying the validity of distress is by action of replevin or 
 trespass (b). 
 
 A tender of rent at the proper time and place will save a distress, or 
 entry, or other condition in the lease, though the landlord refuse to take 
 it, the tenant having done all that he was bound to do : the landlord 
 may, however, maintain an action of debt, or covenant for his rent, 
 but shall not recover damages or costs for non-payment (r). 
 
 A distress may be made for rent accrued after the expiration of a no- 
 tice to quit, but it is a waiver of the notice \ the taking of the distress 
 being a proof of the landlord's intention to confirm the tenancy. 
 
 At common law, and before any innovation was made by statute, 
 the landlord could not have distrained for his rent after the determina- 
 tion of his lease : but now a distress for rent may be made though the 
 lease be determined (</). 
 
 For by stat. 8 Ann. c. 14. s. 6, 7. it is enacted, That it shall be 
 lawful to distrain after the determination of the lease, in the same man- 
 ner as if it had not been determined, provided the distress be made 
 within six calendar months after the determination of the lease, and 
 
 >-) 5 T, R, mi, (c) 1 Campb. 332. (c) 1 Vent. 21. 1 Show. 13c. 3 Salk. 344. 
 (/) 6 T. R. 669.
 
 '3l6 Remedy for Rent by Distress. [Chap. XIII. 
 
 during the continuance of the landlord's title or interest, and also dur- 
 ing the possession of the tenant. 
 
 But where, by the custom of the country, the off-going tenant is al- 
 lowed any advantages respecting the premises which he has quitted, as 
 for example, a certain period within which to get in and dispose of, or 
 to thresh and keep, his corn, &c. the interest and connection between 
 the landlord and tenant is so continued by the operation of such cus- 
 tomary right, that the former is entitled to distrain for rent in arrear 
 after six months have expired since the determination of the lease. 
 
 So, if a tenant dies, and his representative enters upon the premises, 
 and continues therein until the end of the term, and afterwards, the 
 landlord may at any time within the six months after the end of the 
 term, under the restrictions prescribed by the Act, distrain for the ar- 
 rears which were due at the time the original tenant died, as well as 
 for what accrued afterwards. 
 
 No private person can distrain beasts of his own land, or on the high 
 road, which is privileged for the convenience of passengers and the en- 
 couragement of commerce. 
 
 But though chattels or pledges on the land only are to answer the 
 lord's rent, yet if the lord comes to distrain, and the tenant, seeing him, 
 drives the cattle off the land, the lord may follow the beasts and dis- 
 train out of his fee, if he had once a view of his cattle on his land. 
 But if the beasts go off the land of themselves before the lord observes 
 them, he cannot distrain them afterwards, as he might, where the te- 
 nant drives them off. 
 
 Where there are separate demises, there ought to be separate dis- 
 tresses on the several premises subject to the distinct rents ; for no dis- 
 tress on one part can be good for both rents. 
 
 But where lands lying in different counties, are held under one de- 
 mise at one entire rent, a distress may be lawfully taken in either county 
 for the whole rent in arrear ; and chasing a distress over is a continu- 
 ance of the taking. But where the counties do not adjoin, a distress 
 cannot be chased out of one county into the other. 
 
 By statute n G. 2. c. 19. [of which more particularly hereafter,] if 
 any tenant for life, years, at will, sufferance, or otherwise shall frau- 
 dulently or clandestinely convey his goods off the premises, to prevent 
 his landlord from distraining the same, such person, or any person by 
 him lawfully empowered, may, in thirty days next after such convey- 
 ance, seize the same wherever they shall be found, and dispose of them 
 in such manner as if they had been distrained on the premises. 
 
 But, by sect. 2. of the same statute, the landlord shall not distrain 
 any goods which shall have been previously sold, bond fide, and for a 
 valuable consideration, to any person not privy to such fraud. 
 
 By sect. 3. every tenant who shall convey away his goods, and erery
 
 Sect. I.] Remedy for Rent hy Distress. 317 
 
 person who shall knowingly aid or assist him therein, or in concealing 
 the same, shall forfeit to the landlord double the value of such goods. 
 
 By sect. 7. of the same statute, it is enacted, That where any goods 
 or chattels, fraudulently or clandestinely conveyed off the premises to 
 prevent the landlord from distraining them for rent, shall be put, 
 placed, or kept in any house, barn, stable, out-house, yard, close or 
 place, locked up, fastened or otherwise secured, it shall be lawful for 
 the landlord, his steward, or other person impowered by him for that 
 purpose, to take and seize as a distress for rent, such goods and chat- 
 tels (first calling to his assistance, the constable, headborough, bors- 
 holder, or other peace-officer of the hundred, district, or place where 
 the same shall be suspected to be concealed); and, in case of a dwelling- 
 house, (oath being also first made before a justice of the peace, of a 
 reasonable ground to suspect that such goods or chattels are therein,) 
 in the day-time to break open and enter into such house, barn, stable, 
 out-house, yard, close and place ; and to take and seize such goods and 
 chattels for the arrears of rent, as he might have done, if they had been 
 in an open place. 
 
 If a landlord comes into a house and seizes upon some goods as a 
 distress in the name of all the goods in the house, it will be a good seiz- 
 ure of all. 
 
 Distresses ought not to be excessive ; but in proportion to the sum 
 distrained for, according to the statute of Mar!bridge> 52 H. 3". c. 4. 
 
 Thus, if the lord distrain two or three oxen for 1 id. this is unreason- 
 able ; so if he distrain a horse or an ox for a small sum, where a sheep 
 or a swine may be had, this is an excessive distress. — But if there be 
 no other distress on the land, then the taking of one entire thing, 
 though of never so great value, is not unreasonable. 
 
 As these distresses cannot be sold, the owner upon making satisfac- 
 tion, may have his chattels again. 
 
 By stat. 17 C. 2. c. 7. in all cases, where the value of the cattle dis- 
 trained 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 adminis- 
 trators, may distrain again for the said arrears. 
 
 But a second distress cannot, it seems, be at all justified, where there: 
 is enough which might have been taken upon the first, if the distrainer 
 had then thought proper : for in a case where this question occurred, 
 it was resolved, that a man who has an entire duty (as a rent for ex- 
 ample) shall not split the entire sum, and distrain for one part of it at 
 one time, and for the other part of it at another time, and so toties qus- 
 ties for several times ; for that is great oppression. 
 
 But if a man seizes for the whole sum that is due to him, and only 
 mistakes the value of the goods seized, which may be of uncertain or 
 imaginary value, as pictures, jewels, race horses, crV. there is no reason
 
 318 Remedy for Rent by Distress. [Chap. XI1L 
 
 why he should not afterwards complete his execution by making a fur- 
 ther seizure. 
 
 For -taking an excessive distress, a man is not liable to a criminal pro- 
 secution. 
 
 Neither can a general action of trespass be maintained for an exces- 
 sive distress. 
 
 But the remedy is by a special action founded upon the statute of 
 Marlbrldge . On this statute even there can be no remedy where there 
 is a remedy at the common law ; nor if the plaintiff has recovered in 
 replevin ; for the action on the statute is founded upon there being a 
 cause of distress, of which the recovery in replevin shews there was 
 none ; moreover, in replevin, damages were recoverable for the taking, 
 and a man shall not be permitted to say that there was a cause of dis- 
 tress, after he has recovered upon the ground of its being unlawful. 
 
 The Court of Chancery made an order specifically to restore to a te- 
 nant the stock on the farm seized by the landlord under a distress and 
 bill of sale, the landlord not stating whether the sum under which by 
 the terms of the contract he was not to enforce his remedies, was 
 due (tf). 
 
 If any distress and sale be made, as for rent in arrear and due, when 
 in truth not any is due, in such case the owner may recover double the 
 value, with full costs of suit, in an action of trespass, or upon the case, 
 on the stat. 2 W . & M. sess. 1. c. 5. s.$. 
 
 If the distress be made without cause the owner may make rescous, 
 that is, rescue it ; but if it be impounded, he cannot break the pound 
 and retake it, because then it is in the custody of the law. 
 
 Distress bow to be used. — Notice of the distress, with the cause of 
 such taking, must be given to the owner by the stat. 2 W. &' M. sess, 
 i.e. s.s.i. 
 
 As to the manner in which the distress is to be used and disposed of; 
 a distress is to be kept in a pound, which is nothing more than a public 
 prison for goods and chattels, and is either overt, or open, or covert, ox- 
 shut. All living chattels are regularly to be put into the pound overt, 
 because the owner at his peril is to sustain them, wherefore they ought 
 to be put in such an open place as he can resort to for the purpose. 
 
 By the stat. 1 £5" 2 Ph. £s* M. c. 12. s. 1. no distress of cattle is to 
 be driven out of the hundred, rape, wapentake, or lathe, where the 
 same is taken, except it be to a pound overt within the same shire, nor 
 above three miles from the place where the same is taken; nor im- 
 pounded in several places, whereby the owner may be constrained to 
 sue several replevins ; on pain of forfeiting to the party grieved cue 
 hundred shillings, and treble damages. 
 
 00 iq Ves. xj9.
 
 Sect. I.] Remedy for Rent by Distress. 31$ 
 
 By sect. 2. of the same statute, no person shall take for keeping in 
 pound or impounding any distress, above fourpence for any one whole 
 distress : and where less hath been used, there to take less ; on pain of 
 forfeiting 5/. to the party grieved, besides what he should take above 
 four-pence. 
 
 But where lands lying in two adjoining cour 'es were held under one 
 demise at one entire rent, and the landlord distrained cattle in both 
 counties for rent arrear, it was holden, that he might chase them all 
 into one county : if the counties had not adjoined, it would have been 
 otherwise. 
 
 The offence created by this statute for impounding a distress in a 
 wrong place, is but a single offence, and shall be satisfied with one for- 
 feiture, though three or four are concerned in doing the act, as the of- 
 fence cannot be severed so as to make each offender separately liable to 
 the penalty ; the meaning of the statute being that the penalty shall 
 be referred to the offence, not to the person. 
 
 As, where three persons distrained a flock of sheep, and severally im- 
 pounded them in three several pounds, whereby, tsfc. it was held, that 
 they should forfeit but one 5/. and one treble damages. 
 
 Trespass will not lie against the poundkeeper merely for receiving a 
 distress, though the original taking be tortious : for the pound is the 
 custody of the law, and the poundkeeper is bound to take and keep 
 whatever is brought to him at the peril of the person who brings it; 
 and if wrongfully taken they are answerable, not he ; for when cattle 
 are once impounded, he cannot let them go without a replevin or the 
 consent of the party. If however the poundkeeper goes one jot be- 
 yond his duty and assents to the trespass, that may be a different case. 
 
 Neither can a poundkeeper bring an action if the pound be broken, 
 but it must be brought by the party interested. 
 
 Beasts, as is said, ought to be put in a public pound ; for if they are 
 placed in a private pound, the distrainer must keep them at his peril 
 with provision, for which he shall have no satisfaction, and if they die 
 for want of sustenance, the distrainer shall answer for them. 
 
 Dead chattels however, as household goods, &c. which may re- 
 ceive damage by the weather, must be put into a pound covert, other- 
 wise the distrainer is answerable for them if they be damaged or stolen 
 away, and this pound covert must be within three miles, and in the same 
 county. 
 
 Now, by stat. 11 G. 2. c. 19. s. 10. any person distraining may im- 
 pound or otherwise secure the distress of what kind soever it be, in 
 such place or on such part of the premises as shall be most convenient; 
 and may appraise and sell the same, as any person before might have 
 done off the premises. 
 
 The distrainer cannot work or use the thing distrained, whether it
 
 320 Remedy for Rent by Distress. [Chap. XIII. 
 
 He in a pound overt or covert : because the distrainer has only the cus- 
 tody of the thing as a pledge ; but the owner may make profit of it at 
 his pleasure. 
 
 An exception to this rule exists in respect to milch kine, which may 
 be milked by the distrainer because it may be necessary to their pre- 
 servation, and consequently of benefit to the owner. [Cases in the 
 books cast some degree of doubt on the legality of this dictum in Cro, 
 Jae. 148. (see Hunt's Gilbert's Law of Distress, 74.) but the reason of 
 the thing is so forcible, that we incline to think that the dictum of that 
 day respecting this point, would be recognized as law at this peiiod.] 
 
 The distrainer cannot tie or bind a beast in the pound, though it be 
 to prevent its escape ; for any act of the distrainer that tends to the in- 
 jury of it is done at his peril. 
 
 But if cattle distrained die in the pound, without any fault of the 
 distrainer ; in such case he who made the distress shall have an action 
 of trespass, or may distrain again, if the distress was for rem. 
 
 If a distress be taken without cause, before it be impounded, the 
 party may make a rescous. But if it be impounded, he cannot justify 
 the breach of the pound to take it out of the pound, because the dis- 
 tress is then in the custody of the law ; if however the pound be un- 
 locked, it seems he may take them. 
 
 By the common law, if a man break the pound, or the lock of it, or 
 any part of it, he greatly offends against the peace, and commits a tres- 
 pass against the king, and to the lord of the fee, the sheriffs, and huii- 
 dredors in breach of the peace, and to the party in delay of justice : 
 wherefore hue and cry is to be levied against him as against these who 
 break the peace; and the party who distrained may take die goods again, 
 wheresoever he finds them, and again impound them. 
 
 Besides which, by stat. 2 W, £5* M. c. 5. s. 4. on any pound-breach 
 or rescous of goods distrained for rent, the person grieved thereby shall, 
 in a special action upon the case, recover treble damages and costs 
 against the offender, or against the owner of the goods if they be af- 
 terwards found to have come to his use or possession. 
 
 In an action on this statute, it has been adjudged, that the word 
 " treble" shall be referred as well to the word " costs/' as to the word. 
 " damages," and consequently that the costs shall be trebled as well as 
 the damages (a). Indeed it is determined in general, that where a sta- 
 tute gives treble damages the costs shall be trebled of c< urs- (3). 
 
 As to what shall be a rescous, if the distress while being driven to 
 the pound go into the house of the owner, who delivers them not, upon 
 demand of them by the distrainer, this is a rescous in law. 
 
 With respect to the disposition of the distress, which being consi- 
 
 ( a ) 1 Ld. Rr.ym. so, (i) 1 Inst. 25 7-
 
 Sect. I.] Remedy for Bent by Distress. 321 
 
 dered as a pledge could not at the common law be sold ; by the stat. 2. 
 W. & M. sess. i.e. 5. s. 2. it is enacted, That where any goods shall 
 be distrained for rent reserved and due upon any demise, lease or con- 
 tract whatever, and the tenant or owner of the goods 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, replevy the same ; in such case 
 the person distraining shall, with the sheriff or under-sheriff of the 
 county, or with the constable of the hundred, parish, or place where 
 such distress shall be taken, cause the goods so distrained to be ap- 
 praised by two sworn appraisers, (whom such sheriff, under-sheriff, or 
 constable shall swear to appraise the same truly, according to the best 
 of their understandings,) and after such appraisement mav sell the same 
 for the best price that can be gotten for them, for satisfaction of the 
 rent, and charges of the distress, appraisement and sale ; leaving the 
 overplus, if any, with the sheriff, under-sheriff, or constable, for the 
 owner's use. 
 
 In the notice for the sale of a distress under this statute, it is not 
 necessary to set forth at what time the rent became due for which the 
 distress has been made. 
 
 If the person distraining is sworn one of the appraisers, it is illegal, 
 for he is interested in the business ; and the statute says that he, with 
 the sheriff, &c. shall cause the goods to be appraised by two sworn ap- 
 praisers. 
 
 The landlord must remove the goods at the end of five days, and 
 will be deemed a trespasser for any time beyond it that lie keeps them. 
 The five days allowed before a distress can be sold, are inclusive of 
 the day of sale, wherefore it seems the distress may be removed on the 
 sixth day. 
 
 Thus where a distress was made and a regular notice of sale given 
 on the 1 2th day of Afay, and on the afternoon of the 17th day of the 
 same month the goods were removed and sold, it was held that on the 
 evening of the 17th five days from the time of the distress had com- 
 pletely expired, and that the removal and sale were regular according to 
 the time allowed by the statute. 
 
 Where one, who entered under a warrant of distress for rent in ar- 
 rear, continued in possession of the goods upon the premises for fifteen 
 days, during the four last of which he was removing the goods, which 
 were afterwards sold under the distress : held that at any rate he was 
 liable to trespass quare clausum /regit, for continuing on the premises 
 and disturbing the plaintiff in possession of his house, after the time 
 allowed bylaw [a]-. 
 
 (a) n Fast 5 _;<?>
 
 3 C 2Z Remedy for Rent by Distress. [Chap. XIII, 
 
 Notice to the owner is sufficient as against him : unless a replevin had 
 been sued by the tenant, in which case, personal notice to the tenant 
 is sufficient to warrant a sale under the stat. 2 W. IS M. sess. i. c. 5. 
 s. 2. and is preferable indeed to notice left at the mansion-house. 
 
 Upon the sale of such distress the appraisers need be sworn by the 
 constable only of the hundred in which the distress is impounded. 
 
 An irregularity in this process does not now render the distrainer, as 
 lie was at the common law, a trespasser ab initio : for by stat. 11 G'. 2. 
 c. 19. s. 19. it is provided, that where any distress shall be made for any 
 kind of rent justly due, and any irregularity shall be afterwards done 
 by the party distraining or his agent, the distress shall not be deemed 
 unlawful, nor the distrainer a trespasser, ab initio ; but the party grieved 
 may recover satisfaction for the special damage in an action of trespass, 
 or on the case at his election. 
 
 Therefore trespass will not lie for an irregular distress, where the ir- 
 regularity complained of is not in itself an act of trespass, but consists 
 merely in the omission of some of the forms required in conducting the 
 distress, such as procuring goods to be appraised before they are sold. 
 The true construction of the provision in 11 G. 1. c. 19. s. 19. that the 
 party may recover a compensation for the special damage he sustains by 
 an irregular distress " in an action of trespass or on the case," is that 
 he must bring trespass, if the irregularity be in the nature of an act of 
 trespass, and case, if it be in itself the subject matter of an action on 
 the case (a). 
 
 But, by sect. 20, no tenant shall recover in such action, if tender 
 of amends had been made before the action brought : and by sect. 21. 
 the defendant in such action may plead the general issue and give the 
 special matter in evidence. 
 
 Under the plea of the general issue, given by this Act, a landlord 
 cannot justify, except for acts done as landlord: therefore, although he 
 may justify as far as the distress goes, he cannot under this issue justify 
 expulsion. So also if the goods remain on the premises beyond the 
 five days, he cannot justify, under this issue, ent&ring the house to re- 
 move them afterwards, but must plead a licence to justify the asporta- 
 tion, or liberum tenementum to justify the expulsion. 
 
 For goods sold therefore before five days have expired next after the 
 distress and notice, an action of trover will not lie, that being a re- 
 medy which cannot be pursued since the stat. 11 G.2. c. 19. as it tend- 
 to place the landlord in the same situation as he was before the passing 
 of that Act : the action ought to be brought specially for the particulai 
 irregularity. 
 
 But though the tenant shall make satisfaction for the real damage 
 
 (a) 2 C'ampb, Hv
 
 Sect. II. J Of the Action of Debt, #c. 323 
 
 only sustained, by any irregularity in taking or disposing of the distress; 
 yet by the stat. 2 IV. £ff M. sess. I. c. 5. j. 3. if any distress and sale 
 shall be made for rent pretended to be due to the person distraining, 
 where in truth no such rent is due, the tenant shall recover double the 
 value of the goods distrained, together with full costs of suit. 
 
 Goods distrained by the plaintiff were delivered by him to the de- 
 fendant on his promising to pay the rent; an action for money had and 
 received would not lie for the value of the goods, though defendant do 
 not pay the rent (a). 
 
 Where there are three joint lessees, two of whom assign their in- 
 terest to the third, whose sole liability the landlord has not consented to 
 sccept, the goods of the plaintiff being put on the premises by permis- 
 sion of such third lessee and distrained by the landlord for rent and he 
 having paid it, the three lessees are liable to him for monev paid to 
 their use (b). 
 
 Section II. Of the Action of Debt, a here the Lease is 
 
 by Deed. 
 
 Another remedy for the recovery of rent is by action of debt, or co- 
 venant, where the premises are demised by deed. 
 
 An action of debt or covenant lies for non-payment of the rent on 
 the word " yielding" in a lease for years ; for it is an agreement to pay 
 the rent, which will make a covenant. 
 
 The action of debt is founded upon a contract, either express or im- 
 plied, in which the certainty of the sum or duty appears, and the plain- 
 tiff is to recover the sum in mtmero, and not in damages (r). 
 
 Debt, being an action founded on an express contract, rents reserved 
 on leases for years were at all times recoverable by this species of re- 
 medy (<?'). 
 
 So, debt lies for rent upon a lease, though the defendant entered be- 
 fore his title began : for though clearly he is a disseisor by his entry, 
 and the accruing of his term shall not alter his estate, yet debt lieth. 
 for privity of contract ; and whether the entry be tortious or not, it 
 cannot discharge the contract for payment of the rent [e). 
 
 At common law, debt did not lie for rent reserved upon a freehold 
 tease during the continuance of the lease {/)• 
 
 But the stat. ? A**n c, 14. s. 4. enacts, That any persons entitled 
 to r- : -;:r on a lease for life or lives, may have an action of debt 
 
 (/.) 3 Esp. R. 8. 8T.R.309. (c) Bull. N.P.i 6 7. 
 
 7 .-.<,. 58. (f) Cro. Eliz. 169. iScr.550. 
 
 Y 2
 
 324 Of the Action of Debt, [Chap. XIII. 
 
 during the existence of the life, as on a lease for years during the 
 term. 
 
 By the stat. 32 H. 8. c. 37. s. 1. the executors and administrators of 
 tenants in fee, fee-tail, or for life, of rent-services rent-charges, rents - 
 seek and fee-farms, may bring debt for the arrearages against the te- 
 nant who ought to have paid the same. This statute extends to all te- 
 nants for life. 
 
 Though it be not necessary in general to set out the indenture in the 
 declaration in debt for rent, yet it seems necessary where the action is 
 brought on a lease of tithes, which being an incorporeal hereditament 
 lying in grant, could not be granted without deed (a). 
 
 If one of two lessees assign his interest, and the other die before the 
 rent becomes due, an action of debt in the debet et detinet will lie 
 against the assignee and executrix of the deceased lessee for the whole 
 rent (b). 
 
 So, if the lessee for years will assign all his term in part of the 
 land, the lessor shall have a joint action against the lessee and as- 
 signee (c). 
 
 If there is a lessee for years, and he assigns all his interest to another, 
 yet may the lessor still have an action of debt against him for rent in 
 arrear after the assignment : first, because the lessee shall not prevent 
 by his own act such remedy as the lessor hath against him on his con- 
 tract ; 2dly, that the lessee might grant the term to a poor man, who 
 would not be able to manure the land, and so for need or malice the 
 land would lie untilled, and the lessor be without remedy, either by dis- 
 tress or action of debt (d). 
 
 But the lessor may either tacitly or expressly accept the assignee for 
 his tenant, and so discharge the original lessee : and if he once accepts 
 rent from the assignee, (who is bound however no longer than while in 
 possession) he can never resort back again to the first lessee (e). 
 
 The executor or administrator of a lessee for years, may, like any 
 ether assignee, assign the term, and shall not be chargeable for rent 
 after the assignment ( /). 
 
 In a plea of assignment in a lease of tithes, it is necessary for the de- 
 fendant to allege that he assigned the term by indenture ; for that wa? 
 always required by the common law ; and the statute of frauds 29 C. 
 1. c. 3. does not apply to cases of incorporeal hereditaments, for they 
 are not within the mischief intended to be remedied by the statute (g).. 
 
 If the lessor assign his rent, without the reversion, the assignee (if 
 the tenant agrees) may maintain an action of debt for the rent, because 
 the privity of contract is transferred (/.>). 
 
 {a'\ 2 Saund. 297. n. 1. (I) Cro. Jac. 411. (-) 'kid. 
 
 (rf) 1 I A. Raym. 175. 4T. R. 9S. (*) Ksp. N. P- ici. 4 T. R, 98. 
 
 (J) Ibid, i ? ] z Saund. 19?. n. :. 1 •'•) 3 Salk. 118.
 
 Sect. II.] where the Lease is by Deed. 325 
 
 If the lessor grant away his reversion, he cannot have an action of 
 debt for the rent, which being incident to the reversion, passes with it. — 
 The grantee of the reversion, therefore, can alone have the action (a). 
 
 But the grantee even cannot have debt against the lessee if he has 
 assigned over ; for there was no privity between them but by reason of 
 the privity of estate, and that being gone by the assignment, this action 
 will not lie (b). Such is the case, whether the person claiming the 
 rent comes in by succession or grant : thus the successor of a prebend 
 cannot bring debt against the executor of a lessee of the prebendary, 
 where such executor had assigned (c). 
 
 But if a lessee assign part of the land demised, a grantee of the re- 
 version shall have debt against him for the whole rent : for the entire 
 estate remaining in one part of the land, the privity remained entire 
 and would support the action (d). 
 
 A devisee may maintain debt for his share of the rent, and if there 
 be a devise of a rent to be equally divided between three, each may 
 have his action for his share (e). 
 
 An agreement between the lessor and the assignee of the original 
 lessee, " that the lessor should have the premises as mentioned in the 
 lease, and should pay a particular sum over and above the rent annu- 
 ally towards the good-will already paid by such assignee," operates as a 
 surrender of the whole term, and the sum reserved for good-will being 
 to be paid annually in gross and not as rent, the assignee cannot dis- 
 train either for that, or for the original rent, but he has a remedy by 
 assumpsit for the sum reserved for the good- will [f). 
 
 If a lessee for years re-demise his whole term to the lessor with a 
 reservation of rent, it operates as a surrender of the original lease, and 
 therefore he cannot maintain debt for rent against the executor of the 
 original lessor; but must seek relief in equity (g). 
 
 If a lessee assign his whole term to a stranger, he may bring debt 
 for the rent reserved on the contract against him or his personal repre- 
 sentatives. 
 
 So, if the lessee for years assigns all his term to another, reserving 
 the rent to himself, he shall have an action of debt for the arrears 
 during the term ; so though not properly a rent for want of a rever- 
 sion, yet it partakes of its nature, being a return for the profits which 
 are annual (/.>). 
 
 Debt does not lie for rent upon an expired lease. Therefore where 
 lessee for life made a lease for years, rendering rent, and afterwards 
 surrendered to the lessor upon condition : the lessee for years took a 
 new lease for years of the lessor; the lessee for life performed the 
 
 (a) Esp. N. P. 202. {b) Cro. Eliz. 328, ( c ) Ibid. SSS- 
 
 Crf) Ibid. 633. (0 Ibid. 657. (/)jT.R.44i. 
 
 (g) % Mod. 174. {'■•) iStr.405.
 
 326 Of the Action of Debt, [Chap. XIIL 
 
 condition, and put out the lessee for years, who re-enters; and the 
 lessee for life brought debt for the first rent reserved ; and it was ruled 
 that it was not maintainable, for the lease out of which it was reserved 
 was gone and determined; for though the surrender of the tenant for 
 life, which made the lessee for years immediate tenant to the first 
 lessor and so enabled him to make such surrender, was conditional, 
 yet the defeasance of the estate for life, by performance of the condi- 
 tion, cannot defeat the estate of the lessee for years, which was abso 
 lute and well made, and then the rent reserved there.011 is gone like- 
 wise (rt). 
 
 Yet, if a lease be made to a woman dura sola, and she marries, the 
 term expires and she dies-, debt lies against the husband for rent accru- 
 ing daring her lifetime; for he is chargeable by reason of the percep- 
 tion of the profits (b). 
 
 So, in the case of a lease for years, rendering rent, and for non- 
 payment the lease to be void; although the lease become void, yet for 
 rent due before, debt lies (c). 
 
 The Declaration. — In declaring in debt for rent on a lease for years, 
 the plaintiff need net set forth any entry or occupation ; for though 
 the defendant neither enters nor occupies, he must pay the rent, it 
 being due by the lease or contract, and not by the occupation: therefore 
 though it is usual in the declaration to say " by virtue of which the 
 lessee entered," yet it is not necessary (d). 
 
 If rent is reserved quarterly and half yearly, each gale is a distinct 
 debt for which the lessor may have his action, and may declare for an 
 entire gale at the end of any quarter or half year without she wing- 
 how the former quarter or half year has been satisfied. But if he 
 declares only for part of the gale due at the end of any half year or 
 quarter, it is bad, unless he shews how the remaining part was satis- 
 fied ; for otherwise the lessee may be exposed to many actions for the 
 same demand (<?). 
 
 Whenever rent or any other duty is reserved quarterly or half yearly, 
 the declaration should always state when it was due and owing, or 
 it will be bad (/). 
 
 So, if the plaintiff declares for less rent than a year without shewing 
 how the rest was satisfied, it is bad ; and no action will lie for half a 
 year's rent if the rent be reserved annually (g). 
 
 In debt for rent against the devisee of the lessee, the plaintiff must 
 shew that the defendant entered by assent of the executor, or virtuU 
 iegationis: and a demand must be made of the rent. 
 
 (a) Cro. Eliz. 264. Lac. Abr. tit. " Leases." (S. 3. I.) {!>) 1 Lev. 25. 
 
 (0 Cro. Eliz. 78. (d) Salk. 209. 1 Ld. Rnym. 171. 
 
 (<?) 1 Vera. 129. 3 Salk. 118. a Saund. 505. n. b. (/) Show. 8. 
 
 (jr) Crc. Eliz. 535, 6.
 
 Sect. II.] where the Lease is by Deed. 327 
 
 Where the plaintiff in his declaration undertakes to recite a lease, 
 any mis-reeital is fatal, if the action be founded on such lease. 
 
 Thus, if a lease, upon which a gross sum and three fowls are re- 
 served by way of rent, is represented in pleading to have reserved the 
 gross sum without mentioning the fowls, the variance is fatal (a). 
 
 In debt by a remainder-man for rent reserved upon a lease by tenant 
 for life, the plaintiff must shew what authority the tenant for life had 
 to make the lease (b). 
 
 The venue may be laid either where the land lies or where the deed 
 was executed, or it should seem in any place, if the action is against 
 the original lessee (r). 
 
 But if the action is against the assignee of the lessee, it must be 
 laid where the land lies-, for he is chargeable only on the privity of 
 estate (d). 
 
 So, against the executor of the lessee, the action must be brought 
 where the land lies ; for he is chargeable as assignee on the privity of 
 estate only (e). 
 
 So also debt for rent by the assignee of the lessor against the lessee, 
 must be brought where the land lies ; but it is otherwise in the case of 
 covenant which is transitory (/). 
 
 In debt for rent against an executor or administrator, if the whole 
 rent has incurred in the lifetime of the lessee, the action against his 
 executor must be in the detinet only : and the executor, though he do 
 not enter, is still chargeable in the detinet, because he cannot so waive 
 the term as not to be liable for the rent as far he has assets (g). 
 
 But for the rent incurred after the death of the lessee, the action 
 may be brought either in the debet or detinet, if the executor enters ; 
 for he is charged as assignee in respect of the perception of the profits, 
 and it is not material whether he has assets or not. Therefore he can- 
 not in such case plead ple/ie adminisiravit : and if judgment be given 
 against him, it is de bonis propriis . — But if the land be of less value 
 than the rent, he may plead the special matter, viz. that he has no 
 assets, and the land is of less value than the rent, and may pray 
 judgment whether he shall be charged otherwise than in the detinet 
 only. The lessor has his election to charge him either in the debet and 
 detinet, or the detinet only, in which latter case the judgment is de bonis 
 testatons (h). 
 
 It seems sufficient to declare against the defendant as executor, with- 
 out naming him so in the beginning of the declaration [i). 
 
 But after a judgment obtained against an executor, one may have 
 debt in the debet and detinet suggesting a devastavit, and thereby charge 
 
 (a) 2 Ld. Raym. 792. Doug. 668. (I) 2 Ld. Raym. 792. (c) 2 Salk. 651. % Str. 176, 
 <d) Ibid. Carth. 177. i Bos. and Pul. 23, (0 Esp. N. P. 213. (/) 1 Wils. 165. 
 
 (f) 1 Sauud. I. r.. 1= (k) Ibid. (*') Ibid, iifr, rw 2.
 
 32S Of the Action of Debt, [Chap. XIIL 
 
 him de bonis propriis : for it is then properly his own debt ; and a judg- 
 ment against an executor or administrator by default, confession, or 
 after verdict, is an admission of assets to satisfy the judgment ; and if 
 no assets are to be found, it is evidence of a devastavit (a) . 
 
 An executor may bring an action before probate ; but he cannot 
 declare till probate be granted, for when he comes to declare he must 
 produce his letters testamentary. If, however, the probate has been 
 lost, an exemplification from the ordinary will be sufficient (b). 
 
 But an administrator cannot bring an action till administration be 
 granted ; for the power of an administrator is derived from the ordi- 
 nary, as that of an executor is from the will (V). 
 
 Declarations by executors or administrators must be in the detinei 
 only; for a person can only be said to be the party to whom the 
 money when received would belong, that is, to the testator's or intes- 
 tate's estates, not to his executor or administrator. Such is the case, 
 though the rent be reserved on a demise which commenced on the 
 death of the testator, so that he never received any rent (d). 
 
 In actions by an executor, the declaration should state « that the 
 fl testator was dead and the plaintiff complete executor." But if the 
 executor has recovered and had judgment, and afterwards brings a 
 scire facias on it, such averment is not necessary; though it would be- 
 otherwise, had the scire facias been on a judgment obtained by the 
 testator himself, for by the first judgment the testator's right was esta- 
 blished, but where the first judgment has been by the testator, the 
 executor's right does not appear without such averment (<?). 
 
 So, a declaration by an administrator is good, stating in general 
 " that administration was granted to him by the bishop of, &c" with- 
 out saying that he was ordinary, or to whom the right to grant admi- 
 nistration belonged j unless it be a peculiar jurisdiction, in which case 
 it should be set out. The reason is, that the defendant might contest 
 the right of the person granting administration, or shew that admini- 
 stration was granted to another, or that there were bona nctabilia. But 
 a verdict would cure the fault {f)> 
 
 In a declaration by an executor of an executor, he should set out 
 " that the first executor proved the will ." for otherwise the plaintiil 
 lias no title; for if there had been no probate granted to the first 
 executor an administration cum testamento annexo should be granted of 
 the effects of the first testator to the next of kin. But this also would 
 be cured by a verdict (g). 
 
 If the action is brought by the assignee of the reversion against the 
 lessee for rent, he must set forth the seisin in fee in the first tenant, 
 
 (/) i Saund. 216. 219. & 237. in n. (I) Salk. 3C2. 1 Str. 4:2. {c) Esp. N. P. 218= 
 (J) Ibid. Cro. Eliz. 840. (■-) i Str. 651. (/) Cro.-Biz. 87?. 
 
 is) *Su.7i6.
 
 Sect. II.] where the Lease is by Deed. 329 
 
 and the several mesne assignments, down to himself: for these are 
 necessary to make out his title, and the validity of these assign- 
 ments being matter of law, ought to be set forth for the court to 
 judge of(fl). 
 
 For it is a general rule, that estates in fee-simple may be alleged 
 generally, but the commencement of estates-tail, and other particular 
 estates must be shewn, where they go to the ground of the action ; 
 but not so where they are only inducement : the life therefore of the 
 tenant in tail or for life ought to be averred (b). 
 
 But where the action is by the lessor or his heir against the assignee of 
 the lessee, the plaintiff need not set out the several mesne assignments 
 to the defendant, for they do not lie within his knowledge : but it is 
 "sufficient for the plaintiff to set forth the original demise to the first 
 lessee, whose estate and interest have by several mesne assignments 
 come to the defendant •, and proof of possession and occupation shall 
 be sufficient to charge him (c). 
 
 An assignee of a lease, assigned to him by an administrator, is not 
 obliged, it should seem, to make a profert in curiam of the letters of 
 administration (d). 
 
 Respecting the venue> it may in addition be observed that, in debt 
 for rent upon a lease, founded on the privity of estate, as when 
 brought by the assignee or devisee of the lessor against the lessee ; or 
 by the lessor or his personal representatives, against the assignee of the 
 lessee j or against the executor of the lessee, in the debet and detinet, 
 the action is local ; and the venue must be laid in the county where 
 the estate lies. — But in debt by the lessor against the lessee, or his 
 executor in the detinet only, the action is transitory, and the xenue may 
 be laid in any county {e). 
 
 The Pleas. — The pleas to an action of debt for rent reserved on a 
 lease by deed are, I. Nil debet ; i. Non est factum ; 3. Riens in arrear $ 
 4. Entry and eviction ; 5. Infancy. 
 
 Wherever the debt is founded on the deed, the plea cannot con- 
 tradict it: but there is a difference where the specialty is but an induce- 
 ment to the action and matter of fact is the foundation of it, for there 
 nil debet is a good plea : as in debt for rent by indenture for the plain- 
 tiff need not set out the indenture. Therefore the defendant may 
 plead nil debet to debt for rent reserved by indenture, which he could 
 not do in the case of a bond ; because an indenture of lease does not 
 acknowledge an absolute debt as a bond does, for the debt arises from 
 the enjoyment of the thing demised, and so is but inducement (f). 
 
 Nil debet is a good plea in debt for rent on a lease by indenture, for 
 
 (a) Esp. N. P. aao. (i) Ibid. («) Ibid, 
 
 (J) 3 Wils. 3. (/) Tidd's Pract. 
 
 </) a Ld. Raym. ijcj. E&pi N. P. 233, 4 Tidd's Pract,
 
 550 Of the Action of Debt, [Chap. XIII, 
 
 the foundation of the action is a mere fact, namely, the arrears of rent, 
 and the indenture is held to be only inducement, which the plaintiff 
 need not set out in his declarations (a). 
 
 But, though the defendant may plead nil debet, he cannot give in 
 evidence under it, that the plaintiff had nothing in the tenements [b). 
 
 Though in debt for rent on a demise by indenture, it is not ne- 
 cessary to declare that it was by indenture, but " quod cum dimisisset" 
 generally is sufficient ; yet if the defendant pleads nil habuit in tene- 
 ments, it is said to be prima facie a good plea, because no estoppel ap- 
 pears upon the record (c) ; and if the plaintiff replies that he had a 
 sufficient estate to make the demise, he loses the benefit of the estoppel., 
 and as he will not rely thereon, but will reply habuit, the jury shall 
 find the truth; but if he replies as he ought to do) that the demise 
 was by indenture, and concludes wide petit judicium, if the defendant 
 shall be admitted to plead the plea against his own acceptance of the 
 lease by indenture, the defendant shall be stopped (*/). 
 
 But where the declaration states the lease to be by indenture, the 
 plaintiff need not reply the estoppel, but may demur, because the 
 estoppel appears on the record : otherwise, as is before mentioned, if 
 the declaration be " quod cum dimisisset" without saying that it was by 
 indenture (e). 
 
 In debt on bond conditioned for the payment of rent reserved upon 
 a demise according to certain articles, the defendant is estopped to say, 
 that he had not any thing in the land demised by the articles (/). 
 
 Nil habuit in tenementis has been held to be a good plea on demise by 
 deed poll, because, as to the lessee, it is no estoppel. It seems indeed 
 settled that it is not admitted to be pleaded by a lessee in any case 
 where occupation is enjoyed : for the Court will not permit a tenant 
 to impeach his landlord's title : nor indeed will an action for rent lie 
 where the title is in dispute. So, a tenant cannot set up the title of 
 the mortgagee against the mortgagor : because he holds under the 
 mortgagor and has admitted his title (g). 
 
 But a tenant is not at all events estopped to deny his landlord's title ; 
 the estoppel exists only during the continuance of his occupation ; and 
 if he be ousted by a title paramount, he may plead it (£). 
 
 If in a lease special days of payment are limited by the reddendum, 
 
 the rent must be computed according to that, and not the habendum (i). 
 
 In debt for rent, where the plaintiff had declared for more than was 
 
 due upon his own shewing, upon nil debet pleaded, he had judgment 
 
 and damages and costs, notwithstanding ; and it being moved in arrest 
 
 (a) a Saund. 297. n. I. (i) aLd. Raym. 1551. Salk. 277. 6T. R. 6a. s. p. 7 T.R. 537. 
 
 6 T. R. 62. 6 Mod. 258. 2 Lei. Raym. IC51, 4. 1 Saund. 276. n. 1. (0 Ibid. 
 
 (d) Bull. N. P. 17c. 2 Ld. Raym. 1551. (.-) 1 Salk. 277. 1 Saund. 25. 11. 4. 
 
 (/)Cro. Eliz. 362. (g) 3 Lev. 146. Esp. N. P. 233. 5. 5 T.R.5. MSS. 1 T. R. 763. h. i- 
 
 (6) 3T.R.4.11, (i) Salk, 141.
 
 Sect. II.] where the Lease is by Deed. 331 
 
 of judgment that the plaintiff had made an entire demand for rent to 
 a certain sum when it appeared that lie could not have an action for so 
 much, yet the Court held that he might release the surplus and 
 damages, and take judgment for the residue (a). 
 
 If the lessor accepts rent due at the last day of payment, and gives 
 a discharge thereof and acquittance, this shall discharge all preceding 
 arrears, and this would be good evidence on nil debet; for it is not pre- 
 sumable that a man would give a receipt for the last gale of rent, when 
 the former gales were unpaid (Jb). 
 
 So, if the defendant pleads " levied by distress" and so nil debet, he 
 may give a release or payment in evidence : and even though there 
 never was any distress made, yet is the evidence of payment or the 
 release good ; for the issue is on the debt, and the defendant proving it 
 discharged, by any means, supports this issue (r). 
 
 If the lessor has covenanted to repair, and bring debt for his rent, 
 it seems that the lessee may plead that he expended the rent in neces- 
 sary repairs, and so owes nothing (d) : but he must plead this specially, 
 and cannot give it in evidence on the general issue, for he might have 
 covenant on it against the lessor ; wherefore also, if the lessor had 
 brought covenant for rent instead of debr, the lessee could not plead 
 expenditure in reparations at all, the remedy being reciprocal (e). 
 
 However, where there is an express covenant in the same indenture, 
 that the lessee may deduct for charges and repairs, there clearly the 
 defendant may plead it in bar to debt for rent (f). 
 
 So, the defendant may plead non est factum ,• for, denying the exist- 
 ence of the deed, there can be no estoppel (g). 
 
 If the defendant plead non est factum, the plaintiff must prove the 
 execution of the deed, and proof that one who called himself B. exe- 
 cuted it, is not sufficient, if the witness did not know it to be the 
 defendant (£). 
 
 Under this plea, the defendant may give in evidence any thing that 
 proves the deed to be avoided, though it were delivered as his deed ; 
 for the plea is in the present tense, and if it be avoided, it is not now 
 his deed (i). 
 
 But if the defendant plead rasure & sic non est factum, nothing else 
 is evidence but rasure (/.-). 
 
 Riens in arrere is a good plea in debt for rent, though it would be 
 bad in covenant for rent; for in covenant such plea confesses the cove- 
 nant broken, and goes only in mitigation of damages (/). Therefore, 
 where the defendant pleaded " that nothing of the rent Is in arrear 
 
 Vj 5 Mod. 214. {b) Erp. N. P. 234. Co. Lit. 373. a. 3 Co. 65. b. 1 Sid. 44. 
 
 (.) Salk. 284. Cro. Eliz. 140. (-V) Ibid. 222. 0) Bull.N. P. 176. 9 Mod. 60. 1Ld.Raym.420. 
 1 T. R. 650. (/) 1 Lev. ij2. Esp. N. P. 234. (g) Ibid. Bull. N. P. 170. 
 
 :/) Ibid. 171. (i) ibid, (i) Salk, 284. CO £s F- N. P. 235-
 
 332 Of the Action of Debt, [Chap. XIII. 
 
 « and unpaid as by the declarations is above supposed," it was held to 
 be the same as if he had said nil debet, and that it related to the time 
 of the action brought, as well as that of the plea pleaded, for if the 
 rent was due and is not at the time of the plea, it could not have 
 ceased to be due, but by the plaintiff's accepting it; and if so, he 
 waives the action, though it was well brought at the time (a). 
 
 Under this plea, the defendant may deny the validity of the 
 lease (b). 
 
 The defendant may also plead payment at or after the day; for ac- 
 ceptance of rent may be pleaded in bar to debt for rent, though not to 
 a recovery in covenant (c). 
 
 If the defendant plead a tender on the land at the day, he must make 
 a profert of the money (d). 
 
 Where the plaintiff gave a note of hand for rent in arrear, and took a 
 receipt for it when paid, the defendant afterward distrained for the rent, 
 and the plaintiff brought trespass : it was holden, that notwithstanding 
 this note, the defendant might distrain ; for it is no alteration of the 
 debt till payment (e). 
 
 So, if a landlord accept a bond for rent, this does not extinguish it* 
 for the rent is higher, and the acceptance of a security of an unequal 
 degree is no extinguishment of a debt. But a judgment obtained upon 
 a bond would be an extinguishment of it (/). 
 
 Entry and eviction of the whole or any part of the premises demised, 
 is a good plea in bar to an action of debt for the rent. 
 
 It must be a tortious entry and eviction, or expulsion, to occasion a 
 suspension of the rent ; a plea that states a mere trespass will not be 
 sufficient (g) : for if the lessor enter by virtue of a power reserved, or 
 as a mere trespasser, yet if the lessee be not evicted, it will be no sus- 
 pension of the rent (h). 
 
 Therefore, where the lessee pleaded in bar that the lessor entered on 
 the premises and broke and pulled down the ceiling of a summer- 
 house and tore up the benches, whereby the lessee was deprived of 
 the use thereof, without any eviction being stated, it was held to be 
 bad (/*). 
 
 Debt was brought upon a lease for years of land in D. for rent 
 arrear for a year and a half at the Annunciation, 19 J. 1. The defend- 
 ant pleaded, and confessed the lease and reservation ; but further 
 pleaded, that the lessor and all those whose estate, t*fc. had common 
 in ten acres in E. always for their beasts levant et couchant upon the 
 said tenements, every year after corn sown, from August 7, until the 
 corn reaped and carried away ; and that before any rent was due, the 
 
 (a) Cowp. 590. (I) Cro. Eliz. 398. (c) i Tidd's Pract. 7 Mod. 198. 
 
 (</) 1 Ld. Raym. 83. (0 Bull. N. P. 183. (/) Ibid. (g) Cowp. 143* 
 
 (*) Bull N. P. 177. (') Cowp. 342.
 
 Sect. II.] where the Lease is by Deed. 333 
 
 lessor inclosed the said ten acres, wherein he ought to have had his 
 common, with hedges and ditches, and ejected him, so as he might 
 not use his common, and thereby his rent was extinct: whereupon it 
 was demurred, (among other objections) that the land inclosed is not 
 alleged to be sown with corn •, otherwise, by his prescription, he is not 
 to have common, and the Court held that the plea was ill (a). 
 
 The plea must state an eviction or expulsion of the lessee by the 
 lessor, and a keeping him out of possession until after the rent became 
 due ; otherwise it will be bad (b). 
 
 In debt for rent, it is optional for the defendant to plead the 
 entry and expulsion by the plaintiff, or to give it in evidence upon nil 
 Met (c). 
 
 Infancy is another good plea in debt for rent : but a lease made to 
 an infant is not void, but voidable only j and if it be beneficial to him, 
 he is liable to an action for the rent reserved (d). 
 
 Therefore, where to debt for rent, the defendant pleaded infancy at 
 the time of the lease made ; on demurrer, the Court held that the lease 
 was voidable only at the election of the infant, manifested by waiving 
 the land before the rent-day came ; but he not having done so, and 
 being of age before the rent-day came, it was deemed an election, and 
 the plaintiff had judgment (e). 
 
 A set-off may also be pleaded to a general issue in this action. 
 Touching this plea, it was first given by stat. G. 2. c. 22. which 
 enacts, That where there are mutual debts between the plaintiff and 
 defendant,* or if either party sue or are sued as executors or admini- 
 strators, where there are mutual debts between the testator or the in- 
 testate and the other party, one debt may be set off against the other, 
 and such matter given in evidence on the general issue, or pleaded 
 in bar ; but if intended to be given in evidence on the general issue, 
 notice must be given of the particular sum intended to be set off, and 
 on what account it has become due. 
 
 The stat. 8 G. 2, c 4, further enacts, That mutual debts may be 
 set off against each other, notwithstanding such debts were of different 
 natures, unless in cases where either of the debts accrued by reason of 
 a penalty contained in any bond or specialty, in which case, the debt 
 intended to be set off must be pleaded in bar, and in which plea shall 
 be shewn how much is truly due on either side ; and in case the plain- 
 tiff shall recover, judgment shall be entered for no more than appears 
 to be due after one debt set against another. 
 
 The general issue mentioned in the statute must be understood to 
 mean any general issue. 
 
 {a) Cro. Jac. 68c. {l>) i Saund. 204. n. z. 
 
 (r) 1 Mod. 35. 118.- CO Cro. Jac. 3*0. 
 
 (•) Ibid,
 
 334- Of the Action of Debt, Sec. [Chap. XIII. 
 
 With respect to the statute of limitations, although the words of 
 that statute are general as to the limitation of all actions of debt for 
 arrearages of rent, yet it has been adjudged that an action of debt for 
 the arrearages of rent reserved by indenture was not within the mean- 
 ing of the said statute (a). 
 
 With respect to a release, it is said that it cannot be given in evi- 
 dence without pleading ; for it being a discharge by deed, all legal 
 solemnities must be shewn to the Court. But this seems to be errone- 
 ous, for we have seen that under the plea of nil debet) a release may 
 be given in evidence ; and a release may be given in evidence under 
 any general issue (b). 
 
 A release of all demands will not operate to release rent before k 
 becomes due, for then there is no demand ; but it will release rent 
 then due (c). 
 
 Therefore if a man lets land to another for a year, yielding the rent: 
 at Michaelmas, and before Michaelmas the lessor releases to the lessee 
 all actions, yet after the Feast the lessor may have his action for rent, 
 for the release does not discharge it ; for the rent is no debt till the 
 day on which it is payable, as it is payable out of the profits of the 
 land, and if the lessee is evicted before the day, no rent is due ; but 
 the lessor may discharge the lessee of the rent before the day by a 
 special release (d). 
 
 If the defendant insists that the lease declared on is not the plain- 
 tiff's, the plaintiff must shew that it was made by one who had 
 authority from him to execute it in his name, and the authority need not 
 be produced. But the lease must be made and executed in the name 
 of the principal (e). 
 
 In debt for rent by husband and wife, upon a lease by her and her 
 first husband, it is a good plea that her first husband was sole seised, 
 and that she had nothing in the land (f ). 
 
 As to the evidence on the part of the defendant, if he plead nil 
 debet, he may give the statute of limitations in evidence; for the statute 
 is in the present tense, and so makes it no debt at the time of 
 pleading (g). 
 
 So, upon the same issue, he may give entry and expulsion in evi- 
 dence (h). 
 
 The jury, besides finding the debt, ought to give damages for the 
 detention of it, which are usually one shilling, though under particular 
 circumstances they may be more. 
 
 In debt for rent money may be brought into Court (;'). 
 
 Though the debt is by specialty, yet if it depends upon something 
 
 (a) I Saund. 38. (/■) Dyer, 28. 12 H. 8. 1. Salk. 284. Cro. Eliz. 14c. (c) Salk. 578. 
 
 [J) Co. Lit. 29:. b. (?) Bull. N. P. 177. (/) Cro. Eliz. 700. (g) Salk. 278. 
 
 "•■ Bull, N. " 1--. (■) 1 Tfdd's Pnct. 482. 562. Salk, 659,
 
 Sect. III.] Of the Action of Covenant, 8$c, 335 
 
 extrinsic, as rent for example, the plaintiff may have a verdict for 
 what is really due, though more is demanded. 
 
 Therefore in an action of debt on a lease for rent, at 2/. 13.C a year; 
 if the plaintiff declare for 100/. due for so many years' arrear, and it 
 appears that a mistake has been made, and that he lias declared for 8/. 
 too much, yet after verdict if he release the 8/. he shall have judgment 
 for the residue. So, if he demand more than upon his own shewing 
 is due, he may, after demurrer, remit the overplus, and enter judg- 
 ment for the rest (a). 
 
 But as a sum certain is always claimed, the verdict must go to the 
 whole of it ; that is, if the jury find part to be due, they must find nil 
 debet as to the rest (b). 
 
 If there be judgment against two, and one of them dies, the plaintiff 
 may have execution against the survivor (c). 
 
 Of Debt on Bond for, &c. — In an action for debt on bond for per- 
 formance of covenants, the breach must be as particular as the cove- 
 nant (d). 
 
 So, it was held, that the defendant in pleading to such action cove- 
 nants performed, must shew the indenture from the counterpart. How- 
 ever, as to such particularity being requisite vide postea (e). 
 
 In a debt on bond to perform all covenants, &c. a breach cannot be 
 assigned for non-payment of rent, without shewing a demand, except 
 performance be pleaded (fy 
 
 A demurrer to a breach of covenant after plea of covenants performed 
 confesses the breach, and contradicts the plea (g). 
 
 Yet to a plea of performance to debt on bond for breach of cove- 
 nants, a replication of non-payment of rent, without stating a demand, 
 is good ; for a denial of such demand would have been a departure 
 from the plea (&). 
 
 Where performance is pleaded, and matter of excuse is afterwards 
 set forth in the rejoinder, it is a departure ; it should have been pleaded 
 in bar (*"). 
 
 Section III. Of the Action of Covenant, where the 
 Lease is by Deed. 
 
 An action of covenant also lies by the landlord for the recovery of 
 his rent, if the demise be by deed ; for covenant is an action that lies 
 for the recovery of damages for the breach of any agreement entered 
 into by deed bet . i thj Dirties [k) : but the agreement must always 
 
 (a) 8 Mod. 213. i- ■ . , .', r. Q# L ; t< %2Ji a< ( c ) SirT.Raym. 26. 
 
 00 xi Mod. 312. . -, . Ojug.667,&c.Cro.Eliz.8a8. (g) Ibid, 829 
 
 (b) Cro. Car. 7 , _ ,> £ sp . N. P. 266.
 
 356 Of the Action of Covenant, [Chap. XIIT. 
 
 be by deed, though whether it be by indenture or deed-poll it equally 
 lies (a). 
 
 If the agreement be by indenture, it is sufficient in order to main- 
 tain this action against the covenantor that he has sealed it and delivered 
 it to the covenantee, though the covenantee never sealed it (b). 
 
 Neither the word " covenant," nor any particular form of words, 
 is necessary to constitute a covenant in deed*, for any form of expres- 
 sion under the hand and seal of the parties, importing an agreement, 
 will support this action, as amounting to a covenant (<r). 
 
 Thus in the case of a lease of lands, in which are the words " yield- 
 << ing and paying" so much rent, this is an agreement for the payment 
 of rent, which amounts to a covenant, and this action lies for the non- 
 payment (d). So, if the. lease be, yielding such a rent, free and clear 
 of all manner of taxes, charges, and impositions whatsoever, covenant 
 lies if the lessee do not pay the whole rent discharged of all taxes, 
 before or afterwards imposed (e). 
 
 The covenant to pay rent is absolute, and if the tenant sustains any 
 injury, he may have his remedy, but cannot set it off against the 
 demand for rent (f). 
 
 As where in covenant for a year's rent, from Michaelmas 1725 to 
 1726, the defendant shewed upon oyer of the lease, that he as lessee 
 by covenant was bound to repair in all cases except fire, and then pleaded 
 that before Michaelmas 1725 the premises had been burned down, and 
 not rebuilt by the plaintiff during the whole year, so that he had no 
 enjoyment for the whole time claimed : on demurrer, the plaintiff had 
 judgment notwithstanding (g). 
 
 Respecting executors and administrators, as in debt so in covenant 
 for rent incurred after the death of the lessee, the lessor has his elec- 
 tion to charge the executor either as executor, in which case the judg- 
 ment must be de bonis testatoris, or as assignee without naming him 
 executor, but stating generally in the declaration, that the estate of the 
 lessee in the premises lawfully came to the defendant, in which case 
 the judgment shall be de bonis propriis (h). 
 
 The assignee of a term is bound to perform all the covenants annexed 
 to the estate , as if A. leases to B. and B. covenants to pay rent during 
 the said term, and B. assigns to C. y C. is bound to perform the cove- 
 nants during the term though the assignee be not named ; because the 
 covenants run with the land, being made for the maintenance of a 
 thing in esse at the time of the lease made (?'). 
 
 An assignee, however, is liable only in respect of his possession, and 
 not for a breach before assignment (k). 
 
 (a) F. N. B. 145. L, (b) Cro. Eliz. %i%. (c) Esp. N. P. 267. Doug. 766. 
 
 (d) Ibid. (,) Carth. 135. (/) aStr. 763. iT.R. 319. (,?) a Str. 763. 6 T. R. 6*. 
 
 (/n 1 Saund.R, n, 1. (/) Bac,Abr, tit. "Covenant." (E. 3) (i) Doug. 184. Salk, ioq.
 
 Sect. III.] where the Lease is by Deed. 337 
 
 So, if a tenant who is chargeable with the rent assign over his interest 
 in the land, the assignee is chargeable with the penalty for arrears in- 
 curred in his own time [a). 
 
 Also, if a man leases for years, and the lessee covenants for him 
 and assigns, to pay the rent so long as he and they shall have posses- 
 sion of the thing let, and the lessee assigns, the term expires, and the 
 assignee continues the possession afterwards ; an action of covenant 
 will lie against him for rent behind after the expiration of the term, 
 for though he is not an assignee strictly according to the rules of law, 
 yet he shall be accounted such an assignee as is to perform the cove- 
 nants (b). 
 
 As to the question how far actual possession is necessary in order to 
 enable the lessor to maintain covenant against the assignee, it has been 
 decided that by the assignment the title and possessory right pass, and 
 the assignee becomes possessed in law: and it is immaterial whether it 
 be an assignment of the usual kind, or by way of mortgage ; for the 
 principle upon which the assignee is liable is in respect of his having 
 the legal estate. Therefore, a mortgagee though out of possession was 
 held liable as assignee, notwithstanding; and Lord Kenyon declared 
 that he would overrule the case of Eaton and Jacques {Dougl. 455.) 
 without the least reluctance (c). 
 
 But an assignee is only liable while in possession if he assign 
 over before a breach ; therefore though his assignee has not taken 
 possession, yet he, (the first assignee) is not liable to any action of 
 covenant (d). 
 
 Thus, where the defendant was the assignee of the original lessee, 
 and covenant being brought against him for rent reserved on the lease, 
 he pleaded, That before the rent became due he had assigned all his 
 interest in the premises to one Riggy who by virtue of such assign- 
 ment, entered and was possessed : the plaintiff replied, that at the 
 time when the rent became due, the defendant remained and continued 
 in possession absq. hoc. That Rigg had entered, &c. and on demurrer 
 it was held, that the assignment being admitted, the actual possession 
 was not sufficient to charge the first assignee, the possession in law 
 being in the second assignee by virtue of the assignment (<?). 
 
 So also, the assignee of a term declared against as such, is not liable 
 for rent accruing after he has assigned over, though it be stated that 
 the lessor was a party executing the assignment, and who agreed there- 
 by, that the term, which was determinable at his option, should be 
 absolute {/)• 
 
 But an action of covenant cannot be maintained against an under- 
 
 (a) Cro. Eliz. 383. (i) Ba<S Abr. tit. " Covenant." (E. 3.) 
 
 (c) Stone -v. Evans, ante 1 13. (d) 1 B. & P. 21. 
 
 \e) Doug. 461. n. 1. (/) Ibid. 764. 
 
 Z
 
 338 Of the Action of Covenant, [Chap. XIIL 
 
 lessee ; for it is clearly settled, and is agreeable to the text of Lyttleton, 
 that the action cannot be maintained, unless against an assignee of the 
 whole term (a). 
 
 But the lessee being" a party to the original contract, continues al- 
 ways liable, notwithstanding any assignment (b) ; for it is extremely clear, 
 that a person who enters into an express covenant in a lease continues 
 liable on his covenant notwithstanding the lease be assigned over (c). 
 
 For the lessee has from his covenant both a privity of contract and 
 of estate; and though he assigns, and thereby destroys the privity of 
 estate, yet the privity of contract continues; and he is liable in cove- 
 nant notwithstanding the assignment ,//). But the assignee comes in 
 only in privity of estate, and is therefore liable only while in posses- 
 sion ; that is, whilst he has the legal estate, except in the case of rent, 
 for which though he assign over he is liable as to the arrears incurred 
 before (it is said), as well as during his enjoyment ; and such assignee 
 was made liable in equity, though the privity of estate was destroyed 
 at common law (f). 
 
 Covenant lies against the assignee of a lessee of an estate for a part 
 of the rent; as in such case the action is brought on a real contract in 
 respect of the land, and not on a personal contract : and in case of 
 eviction, the rent may be apportioned, as in debt or replevin. — But it 
 is otherwise in covenant against the lessee himself, who is liable on his 
 personal contract ( /'). 
 
 The Declaration. — With respect to the pleadings on the part of the 
 plaintiff, the declaration in an action of covenant should set out ex- 
 pressly that the covenant was made by deed. Per scriptum factum apud 
 IV. concessit, does not import a deed ; neither does an allegation that the 
 party covenanted per quoddam scriptum .- and if the instrument is set out 
 upon error brought, and concludes with " in witness whereof, I have 
 hereunto set my hand and seal," it will not make good this defect (g). 
 
 This action being founded on a deed, the plaintiff need not set forth 
 more than that part which is necessary to entitle him to recover : if he 
 states what is impertinent, it \z an injury to the other party, and may 
 be struck out and costs allowed, upon motion. When it is said that 
 the plaintiff need only set forth that part of the deed on which his ac- 
 tion is founded, it is not meant that even that is necessary: for he is 
 not bound to set forth the material part in letters and words; it will be 
 sufficient to state the substance and legal effect ; that is shorter, and not 
 liable to misrecitals and literal mistakes : but what is alleged should be 
 proved (h). 
 
 The proper mode, therefore, of declaring in covenant, is to set out 
 
 (a) Doug. 187. 459. Store v. Evans, supra. (t) Doug. 460. (c) 4 T. R. 98. 
 
 (rf) Doug. 460. ( e ) Bac. Abr. tit. "Covenant." (E. 4.) (/) 2 East's R. 5 ".'. 
 
 (g) % Str.814. (b) 1 Str. 230. Doug. 667.
 
 Sect. III.] where the Lease is by Deed. 339 
 
 that, by indenture, certain premises therein mentioned were demised, 
 without stating them particularly, subject among other things to a pro- 
 viso, setting out the substance of the covenant, and the breach (a). 
 
 In an action for mismanagement of a farm, it is enough to state that 
 part of the instrument truly which applies to the breach complained of, 
 if that which is omitted do not qualify that which is stated (£). 
 
 In declaring against an assignee, the plaintiff may declare against him 
 generally as assignee, without setting out the intermediate assignments ; 
 for he may not know them perhaps : and such is the case, though the 
 plaintiff himself is an assignee (r). 
 
 So, where the action is against the original lessee, the breach need 
 2iot extend to assigns ; for the Court will not presume an assignment [d\. 
 
 The distinction proceeds from the "difference that subsists between the 
 case where a thing is to be done by a person or his assigns, and that in 
 which it is to be done to a person or his assigns : in the first place, the 
 breach must be assigned in the disjunctive, that it was not done » ei- 
 ther by the one or the other," but in the last case, it will be intended 
 prima facie to be done to the person himself ; but if he assign his inter- 
 est, then it may be done to the assignee, and if he did assign over 
 his interest, it ought to be shewn on the other side. 
 
 Where the action therefore is brought by the assignee of a term, the 
 plaintiff must set forth in his declaration all the mesne assignments of 
 the term down to himself; for he is privy to them, and therefore shall 
 not be jillowed to plead generally that the lessee's estate of and in the 
 demised premises came to him, or to some other person under whom he 
 claims, by assignment ley 
 
 But where an action is brought against an assignee of a term, such 
 general form of pleading is sufficient, for the plaintiff is a stranger to 
 the defendant's title, and therefore cannot set it out particularly. It is 
 not sufficient, however, to say that the tenements came to the defendant 
 by assignment, but it must be shewn that he is assignee of the term ; 
 for otherwise it might be an assignment of another estate than the term 
 of the lessee : the usual form is " all the estate, right, title, and in- 
 « terest of the said A. (the lessee) of, in, and to the said demised pre- 
 " mises, afterwards, to wit, on, l£c. in the year of our Lord, &c. at, 
 " life, aforesaid, by assignment came to the said defendant" (f). 
 
 So, in an action of covenant by an assignee, the declaration need not 
 shew the deed of assignment; provided the subject in dispute may be 
 assigned without deed ; although the covenant on which the action is 
 brought ought to be by deed (g). 
 
 (a) Cowp.665. (I) 13 East, 18. (V) 8 Mod. 72. 
 
 (</) 5 Mod. 133. 11 Mod. 313. iSalk. 139. i Str. 228. s. c. Bull. N. P. 164. 5 Mod. i.v- 
 \% Mod. 86. s. c. Salk. 139. s. c. (<") * Saund. R. 112. n. 3, ( f) Ibid. 
 
 (^)Cro. Eliz, 373- 43^« 
 
 Z2
 
 340 Of the Action of Covenant, [Chap. XIII. 
 
 But all declarations against assignees state entry and possession ; and 
 this has been the case both before and since Lord Coke's dictum in Cooke 
 and Harris, which was extrajudicial (a). 
 
 On an assignment of land by husband and wife, where they are 
 seised to them and the heirs of the husband, it is sufficient to declare 
 as assignee of the husband lb). 
 
 The assignee of a lease which appears to be good only by estoppel, 
 cannot maintain an action on the covenants (c). 
 
 Tenants in common ought to join in the action of covenant for 
 rent (d). 
 
 Where there is a joint-covenant by several, all should join in the 
 action, or on craving oyer and demurring generally, it will be bad (e). 
 
 But if any named in the indenture have not sealed it, they should be 
 excluded by an averment to that effect. But advantage must be taken 
 by pleading in abatement, if the action be brought against part only of 
 the covenantors If). 
 
 Where the plaintiff cannot sue on a breach of covenant, without 
 some previous circumstances being by him performed, the declaration 
 should aver the performance of them (g). 
 
 Covenant for the non-payment of rent must be brought where the 
 lands lie, though the rent be made payable in another place : as where 
 the lands lay in Ireland, and the rent was reserved to be paid in London, 
 it was adjudged, that the action should be brought in Ireland (h) . 
 
 The distinction respecting the venue in this action, is this : in cove- 
 nant by the grantee of the reversion against the assignee of the lessee the 
 action is local, and the venue must be laid in the county where the estate 
 lies. — But in covenant by the lessor or grantee of the reversion against 
 the lessee, the action is transitory, and the venue may be laid in any 
 county at the option of the plaintiffs (z). 
 
 In covenant upon a lease a view being proper to be had, the venue 
 was changed to the county where the premises lay, though most of the 
 plaintiff's witnesses resided in the county where the venue was laid [k). 
 
 Where the covenant was " to pay or cause to be paid," the breach 
 was sufficiently assigned by stating that the defendant had not paid, 
 without saying " or caused to be paid," for had the defendant caused 
 to be paid, he had paid, for qui facit per aliam facit per se (/) ; and in 
 such case it might be pleaded in discharge (in). 
 
 Breach that 3/. for a year at Lady-day last was arrear and unpaid, is 
 well on a general demurrer wherein it was objected that it did not ap- 
 pear where the money became due (»). 
 
 (...) L>o«g. 458. (/>) Cro. Car. 285. [c) Cro. Eliz. 373. 437- (</) Bull. N. P. 158. 
 (.•) Itud.Ksp.N. P.304. & * Str.1146. (/) Ibid. (g) Esp.N.P.304. Hob. 217. 
 
 (/;) 2 East's R. 575. 1 Salk. So. (1) Ibid. (I) 8 East, 268. (/)iStr.328. 
 
 (m) ibid. 231. (n) Salk. 139.
 
 Sect. III. J where the Lease is by Deed. 341 
 
 The Pleas. — Touching the pleas to this action, in covenant there is, 
 properly speaking, no general issue ; for though the defendant may- 
 plead non est factum^ as in debt in specialty, yet that only puts the deed 
 in issue and not the breach of covenant; and non infregit conventionem, to 
 a negative covenant, has been holden to be a bad plea. In this action 
 therefore, the defendant must specially controvert the deed, or shew 
 that he has performed the covenant or is legally excused from the per- 
 formance of it i or, admitting the breach, that he is discharged by mat- 
 ter ex post facto as a release, &c. [a). 
 
 The pleas therefore to this action for breach of covenant for payment 
 of rent, are I. Performance. 2. Other covenants in bar. 3. Non est 
 factum, 4. Entry and eviction. 5. A release. 6. Accord and satis- 
 faction. 7. Tender and refusal. 8. Riens en arrere, or payment at the 
 day. 9. Infancy. 
 
 A defendant cannot plead performance generally to negative and af- 
 firmative covenants (b). 
 
 Another covenant may be pleaded in bar, when they are both in the 
 same deed ; for the meaning of the parties is to be collected from the 
 whole of the deed. Thus, in covenant for rent, the defendant was 
 permitted to plead another covenant in the same indenture, that he, as 
 lessee, might retain as much of the rent for repairs and charges (<:). 
 
 But generally, reciprocal covenants cannot be pleaded one in bar of 
 another, especially if they do not go to the whole consideration (d) ; 
 for the damages might be unequal : and in assigning a breach of cove- 
 nant it is not necessary to aver performance on the plaintiff's side unless 
 there be a condition precedent (*>). 
 
 Therefore, if A. covenant with B. to pay so much money for tithes, 
 and to be accountable for all arrears of rent, and B. covenant to allow 
 him certain disbursements upon the account, A. cannot plead in an ac- 
 tion of covenant, that he was ready to account if B. would allow him 
 the disbursements ; for the covenants being mutual, each of them has a 
 remedy against the other for non-performance ( f )• 
 
 So, unliquidated damages, arising from the breach of other cove- 
 nants to be performed by the plaintiff, cannot be pleaded by way of set- 
 
 A set-off is allowable, however, by the statutes of set-off, in an ac- 
 tion of covenant for non-payment of money, as for rent ; but the de- 
 mand intended to be set-off, must be such as might have been the sub- 
 ject of an action either of debt, covenant, or assumpsit (h). 
 
 In covenant upon an indenture for non-payment of rent, the de- 
 fendant pleaded non est factum^ and gave a notice of set-off $ Mr. f, 
 
 (a) Tidd's Praot. 593. (I) Cro. Eliz. 691. (c) 1 Lev. 152. 
 
 (</) aMod.309. 1H.Bl.279. (O6T.R.571. (/) a Mod. 73. 
 
 lg) Cowp. 36. 6T. R.48S, (/;) Tidd's Pract. 603.
 
 342 Of the Action of Covenant, [Chap. XII L 
 
 Denton at the assizes was of opinion, that he could not do so upon this 
 issue ; but upon a motion for a new trial the Court held, that the evi- 
 dence ought to have been received, for the general issue mentioned in the 
 Act must be understood to be any general issue, and accordingly or- 
 dered a new trial (a). 
 
 On the plea of non est factum, the issue is that there is no such deed 
 as that stated in the declaration. The lessor's title therefore, cannot on 
 such plea be controverted (£). 
 
 The defendant may, under this plea, shew that some of the cove- 
 nants in the deed have been altered or erased, or he may plead it ; for ii 
 any covenant be altered or erased, the whole deed is discharged : for 
 the deed is a complication of all the covenants, so that by changing any, 
 it remains no longer the same deed (c). 
 
 A deed may be pleaded as lost by time and accident, without profert 
 thereof being made. But if profert of the deed be made, the Court 
 cannot dispense with oyer (d). So if it appear by the record that the 
 defendant had oyer of a copy only, it is error : but the Court will in 
 certain cases dispense with oyer, as where an original lease is lost, and 
 an application is made that a copy of the counterpart may be good oyer; 
 and if it be once ordered that a copy be deemed a compliance with the 
 rule demanding oyer, no error can appear on the record, because it does 
 not there appear whether the oyer was given from an original deed or a 
 copy. Much less is it necessary to make a profert of a deed which is 
 pleaded only by way of inducement to the action (e). 
 
 As to the plea of nil habuit in tenementis ; the general rule is, that 
 a tenant cannot be permitted to controvert the title of his landlord ( /) : 
 and it is founded on good sense ; for so long as the lessee continues to 
 enjoy the land demised, it would be unjust that he should be permitted 
 to deny the title under which he holds possession. But when he is 
 evicted, he has a right to shew that he does not enjoy that which was 
 the consideration for his covenant to pay the rent, notwithstanding he 
 has bound himself by the covenant (g). If, therefore, the defendant 
 hath been evicted, to be sure he cannot be compelled to pay rent, and 
 he may plead that fact in answer to the plaintiff's demand. However, 
 that generally speaking, an indenture operates by way of estoppel against 
 the tenant, and precludes him from controverting the title of his land- 
 lord, is proved by Lit. s, 58. Co. Lit. 47. b. and by a variety of other 
 cases (h). 
 
 Entry and eviction therefore is a good plea to an action of covenant, 
 lor rent is suspended by entry into any part. The eviction must be tor- 
 tious, and such as ousts the defendant of his possession; for a mere 
 
 {a) Bull.N. P. 180. (/>) % 151. Rep. 1 153. Esp. N. P. 306. (0 Ibid. Co. 38, 
 
 (d) 3T.R.151. (,) 8T.R.573. (/) 7T.R.539- (?) 3T.R.442- 
 
 (A) 7 T. R. 5S %.
 
 Sect III.] where the Lease is by Deed, 543 
 
 trespass will not suffice. — Entry and eviction must in covenant be 
 pleaded; for it cannot, as in debt for rent, be given in evidence: and 
 to a plea of eviction the plaintiff may reply an entry by virtue of a 
 power, and traverse the eviction (a). 
 
 Therefore, where in covenant for non-payment of rent the plaintiff 
 declared that he was seised of tithes, and by indenture demised them to 
 the defendant rendering rent, and that the defendant covenanted to pay 
 it, and assigned the breach in non-payment of so much, the defendant 
 pleaded eviction-, the plaintiff demurred, and judgment was given for 
 the defendant ; because it is a rent, and the eviction is a suspension of 
 it, and therefore a good plea (b). 
 
 A release of all covenants is a good discharge of the covenant before 
 it is broken ; but a release of all actions, suits, and quarrels, would 
 not be so; for at the time of the release no debt, duty, or cause of ac- 
 tion existed (r). 
 
 Wherever a discharge is pleaded in the nature of ?. release, the de- 
 fendant must plead it to be by deed, or it will be bad; for as the cove- 
 nant is by deed, by deed only shall it be discharged (d). 
 
 It has been said, that where a covenant runs with the land, and the 
 lease has been assigned, if the covenantee had released before a breach 
 or action brought, it had barred the assignee even for a breach in his 
 own time (e j. [But this cannot, it is conceived, apply to a covenant for 
 payment of rent : for as an assignee shall be bound by covenants that 
 run with the land, so he shall take advantage of them ; and were it 
 otherwise, in the case of rent the covenantee might in fact defraud his 
 assignee by defeating the estate that he assigned to him] ( f). 
 
 Accord and satisfaction is a good plea where there has been an actual 
 breach; for not till then are damages claimable: and this plea goes in 
 discharge of damages, not of the covenant itself, for that remains (g). 
 
 Therefore, where the plaintiff declared that in consideration that he 
 would permit 5. P, to enjoy a farm at C, for one year, the defendant 
 covenanted to pay the rent of 72/. per arm. and also 200/. then in ar- 
 rear, and the breach assigned was the nonpayment of the rent; the de- 
 fendant pleaded that " before any cause of action did arise on the cove- 
 nant, that it had been agreed between him and the plaintiff, that the 
 plaintiff should take 30/. in discharge of all covenants, which the 
 plaintiff had accepted;" on demurrer this plea was held to be a bad one, 
 for at the time there was no covenant broken or damages sustained (Jj). 
 
 Tender and refusal is also a plea to this action. The damages, not 
 the debt, being for the most part the thing in demand by this action, 
 
 (j) 1 Saund. R. 204. 11.2. (i) 2 ibid. 304. r.. 7. I Ld. Raym. 77. (c) Esp. N.P.2C/. 
 (d) Ibid. (<■) Ibid. 308. Cro.Car.503, (/) Bull. N. P. 159. 
 
 (?) F.sp. N. P. 308, ' (h) Ibid.
 
 344 Of the Action of Covenant, #c. [Chap. X III 
 
 tender and refusal need not in general be pleaded with an uncore 
 prist (a). 
 
 But where it is brought for rent, it being a debt ascertainable and 
 certain, it is best to plead this plea with an uncore prist. 
 
 Riens en arrcre, or payment at the day, is a good plea to covenant for 
 non-payment of rent. But " levied by distress," cannot be pleaded ; 
 for that is a confession that it was not paid at the day, to which time 
 the breach refers (J?). 
 
 Infancy is another plea in this action, which may or may not be good, 
 according to circumstances. 
 
 If the defendant has leave to plead double under the stat. 4^5 
 Ann c. 16. he shall not be allowed to plead inconsistent pleas, as non 
 est factum, and a condition precedent (c). 
 
 Bankruptcy is no plea to a covenant to pay rent (d), for besides that 
 the rent was not a debt due at the time of the bankruptcy, and so could 
 not be proved under it, it is a settled principle, that the tenant's liability 
 on his covenant to pay rent, subsists during the continuance of the 
 lease, notwithstanding he may become a bankrupt and be deprived of 
 all his property : but of the assignee of the tenant, otherwise (e). 
 
 In an action of covenant for rent, or for 5/. an acre for ploughing 
 meadow, the count being for a liquidated sum, money may be paid 
 in:c Court (f). 
 
 Where an action of covenant was brought upon a lease for non-pay- 
 ment of rent, and not repairing, tsV. the court made a rule, that upon 
 payment of what should appear to be due for rent, the proceedings as 
 to that should be stayed, and as to the other breaches, that the plaintiff 
 might proceed as lie should think fit (g). 
 
 So the Court have referred it to the master to compute what is due in 
 covenant for non-payment of rent (/.'). 
 
 Respecting the verdict and judgment in this action j in covenant for 
 non-payment of rent at divers days which amounts to so much, if in 
 the declaration the sum is miscast, it is not error, but the plaintiff 
 shall have a verdict for so much as is really in arrear (/'). , 
 
 Judgment cannot be given on two covenants where one is bad ; there- 
 fore where a general verdict was given, and entire damages were as- 
 sessed, judgment was arrested (£). 
 
 So if covenant be brought against two, and there be judgment by de- 
 fault against one, and the other pleads performance, which is found 
 for him, the plaintiff shall not have judgment against the other, for on 
 the whole the plaintiff has no cause of action (/). « 
 
 00 Esp. N. P. 308. (I) Ibid. 309. (c) Ibid. Giib. R. 123. 
 
 «j 4 Bur. 2444. 1 H. El, 433. (<r) 7 T. R. 616. 8 T. R. 61. ( /) Esp. N. P. 31c. 
 (g) 1 Tidd's Pract.565. {l>) 1 Wils. 7j . 8 T. R. 410. (»') 5 Mod. 213. 
 
 (t) Cro. Eliz. 685. (/) 1 Lev. 63.
 
 Sect. IV.] Action of Debt, §c. 345 
 
 In covenant for rent upon a lease by A. to B. the point in issue was 
 whether C. (whose title both admitted) demised first to A. or to an- 
 other person ; C, is a competent witness to prove the point in issue, for 
 the verdict cannot be given in evidence in any action which may after- 
 wards be brought either by or against him (a). 
 
 A bill in equity may be brought for rent, where the remedy at law 
 is lost or become very difficult, and such the Court will relieve on the 
 foundation of length of time (b). 
 
 Section IV. Action of Debt, for Use and Occupation. 
 
 An action of debt will also lie, or of assumpsit for use and occupa- 
 tion, where rent is in arrear by a tenant who holds under a lease not by 
 deed : as under a writing without deed or a parol demise. 
 
 Of Debt. — First with respect to the action of debt. 
 
 This action, we have before observed, is founded upon a contract, 
 either express or implied, in which the certainty of the sum or duty 
 appears, and the plaintiff is to recover the sum in numero and not in 
 damages (c\ 
 
 Where there was a tenant at will, with a rent reserved, the lessor 
 might always have an action of debt for arrears of rent (d). 
 
 But in declaring on a lease at will for rent arrear, the plaintiff must 
 shew an occupation ; for the rent being only due in respect thereof, 
 it should appear to the Court when the lessee entered and how he oc- 
 cupied (<?). 
 
 Against tenants at sufferance, it seems that an action of debt lay not 
 for rent arrear, for the contract was determined, and they are in by 
 wrong : but in such cases there is now a special provision. 
 
 Where a tenant holds over, for double value. — For by Stat. 4 G. 2. c. 28. 
 s. 1. it is enacted, That if any tenant or tenants for life, or lives, or 
 years, or persons coming in under or by collusion with them, hold over 
 any lands, tenements, l£c. after the determination of their estates, af- 
 ter demand made and notice in writing given for delivering the posses- 
 sion thereof by the landlord, or the person having the reversion or re- 
 mainder therein, or his agent thereunto lawfully authorized, such tenant 
 or tenants so holding over, shall pay to the person so kept out of pos- 
 session at the rate of double the yearly value of the lands, tenements, 
 &e. so detained, for so long a time as the same are detained ; to be re- 
 covered by action of debt, whereunto the defendant or defendants shall 
 be obliged to give special bail. 
 
 (*)3T.R.3o8. (J)iAtk.j98. (c) Bull. N. P. 1 67, (i) Esp. N.P. iSS. 
 
 («) 1 Salk. 209. Dou?. 457,
 
 346 Action of Debt, [Chap. XIII. 
 
 Debt for double value on the above statute does not lie against a 
 weekly tenant (a). 
 
 For double rent.- Also, by stat. 1 1 G. 2. c. icj. s. 18. it is enacted, 
 That in case any tenant or tenants shall give notice of his, her, or their 
 intention to quit the premises, and shall not accordingly deliver up the 
 possession thereof, at the time in such notice contained, the said tenant 
 or tenants, his, her, or their executors or administrators, shall from 
 thenceforth pay to the landlord double the rent or sum which he, she 5 
 or they should otherwise have paid. 
 
 Upon these statutes it has been held, that 
 
 With respect to the 4 G. 2. it is a remedial lav/ ; the penalty being 
 given to the party aggrieved (Z>). 
 
 The action under this statute stands in place of an ejectment (c) ; but 
 is more beneficial and effectual (d). 
 
 The notice to quit may be before the expiration of the lease or time of 
 demise or after (e). 
 
 The notice in writing is of itself a sufficient demand, within the 
 words of the statute " after demand made and notice in writing 
 given (/). ' 
 
 In debt for double value under the stat. 4 G. 2. the plaintiff after 
 stating a demise to the defendant's wife and her subsequent intermar- 
 riage with the defendant, alleged in the first count a notice to quit and 
 demand of possession delivered to the defendant and his wife, and in the 
 second count alleged a notice to quit and demand of possession deli- 
 vered to the wife, previous to her intermarriage with the defendant ; 
 held that to support the second count the husband need not be joined in 
 conformity ; and that to sustain the action, it was not necessary to aver 
 to have given notice to the husband subsequent to the intermarriage (g). 
 
 A receiver appointed under an order of the Court of Chancery is 
 " an agent lawfullv authorized" within the words of the statute (h). 
 
 One tenant in common may maintain this action for double value of 
 his moiety ; for where the injury is separate, tenants in common may 
 have several actions (/'). 
 
 The administrator of an executor cannot sue for double the value of 
 lands held over after notice to quit under a demise from the testator, ac- 
 cording to 4 G. 2. c. 28. without taking out administration de boms no/i, 
 even though the tenant has attorned to her : for most certainly, in any 
 case in which the plaintiff means to make title, she must take out admi- 
 nistration de bonis non (k). 
 
 With respect to the stat. 11 G. 2. a parol demise from year to year is 
 a sufficient holding within the statute so as to subject the tenant to the 
 
 («) a Campb. 453. (4) 5 Bur. 2698. (c) 3 East, 3581. U) 2 Bl.R. 1077, 
 
 (0 2 Bl. R. io 7 (,. (/) 5 Bur. 2694. C?) 1 Bos. & Pull. N. R. 174. 
 
 (/•) Ibid. (») 2 Bl. R. 1077. W * Bos * & PuL 310-
 
 Sect. IV.] for Use and Occupation. 347 
 
 penalty of double rent, if he hold over after he has given notice to 
 quit (a). 
 
 The notice by the tenant to quit, need not be in writing: a parol no- 
 tice to quit is sufficient (£). 
 
 The acceptance of (single) rent accrued since the notice, is, it seems, 
 a waiver of the landlord's right to double rent, but does not necessarily 
 imply that the tenancy should continue (c). 
 
 By stat. ii G. i. c. 19. s. 12. it is enacted, That every tenant to 
 whom any declaration in ejectment shall be delivered for any lands, isfc. 
 shall forthwith give notice to his or her landlord, or his bailiff or receiver, 
 under the penalty of forfeiting the value of three years improved or 
 rack-rent of the premises to the person of whom he or she holds ; to be 
 recovered by action of debt. 
 
 Debt will lie for use and occupation generally, without setting forth 
 the particulars of the demise, or where the premises lie (J). 
 
 Therefore, in a case, where to a count for use and occupation gene- 
 rally, the defendant demurred and assigned for causes that it did not 
 set forth any demise of the premises, nor for what term they were de- 
 mised nor what rent was payable, nor for what length of time the de- 
 fendant held and occupied the premises, nor when the sum of 5/. 
 thereby supposed to be due became due, nor for what space of time ; 
 after argument, the Court of Common Pleas gave judgment for the 
 plaintiff on that count (e). 
 
 But if the particulars of a demise be alleged, they must be proved. 
 Therefore in an action for double rent on the stat. 11 G. 2. c. 19. 
 s. 18. where the declaration stated a lease for three years, but on the 
 evidence it appeared, that the lease for three years was void under the 
 statute of Frauds, and that the defendant was only tenant from year to 
 year : though this was sufficient for the action, yet a lease for three 
 years having been laid, and not proved, the plaintiff was nonsuited (f). 
 After a landlord has recovered in ejectment against his tenant, he 
 may maintain debt upon the stat. 4 G. 1. for double yearly value of the 
 premises during the term the tenant held over after the expiration of 
 the landlord's notice to quit (g). 
 
 A landlord declared in debt, first, for the double value, secondly, 
 for use and occupation ; the tenant pleaded nil debet to the first, and a 
 tender of the single rent before action brought to the second count, and 
 paid the money into Court, which the plaintiff took out before trial, 
 and still proceeded : held that this was no cause of nonsuit as upon the 
 ground of such acceptance of the single rent being a waiver of the 
 plaintiff's right to proceed for the double value ; but that the case ought 
 to have gone to the jury, and that the plaintiff's going on with the ac- 
 
 {*)■ 3 Bur. 1607. 1 131. R.533. s. c. (b) Ibid. (,) Cowp. 246. 
 
 :.V) 6T.R. 6a. 6East 5 647- (0 Ibid. (/) Dong. 668. (*) 9East,3ic.
 
 343 Of Assumpsit for Use and Occupation. [Chap. XIII. 
 
 ticn after taking the single rent out of Court, was evidence to shew that 
 he did not mean to waive his claim for the whole value, but to take it 
 pro tanto : it seems that though the single i-ent were paid into Court on 
 the second count, yet that if the plaintiff had not accepted it, but had 
 recovered on the first count, the defendant would not have been en- 
 titled to have the money so paid in, deducted out of the larger sum re- 
 covered (a). 
 
 Debt against an executor shall be in the det'met only; for he is charge- 
 able no farther than he has assets (£). 
 
 An administrator may be declared against as assignee in debt for rent, 
 for the time that he enjoyed the land and was in possession; and must 
 be in the debet and detinet (c). 
 
 An executor must bring debt in the detinet only, though this would 
 be aided after verdict by the statute of Jeofails (d). 
 
 The Picas. — In debt for rent on a demise in writing without deed or 
 by parol, the proper plea is non demisit (^). 
 
 Entry and eviction is a good plea to -.lis action ; so as it be such a 
 tortious entry and expulsion as to prevent an enjoyment of the premises. 
 For if there was no beneficial occupation, there can be no ground for 
 the action. 
 
 The statute of Limitations, 21 J. I. c. i<5. which enacts, That all 
 actions for rent arrear, or grounded on any lending or contract with- 
 out specialty, must be brought within six years, is another good plea : 
 and such plea must conclude with a verification, as when pleaded to an 
 action of assumpsit (f). 
 
 As to the plea of infancy, see ante C. IV. 
 
 So a plea of set-off is allowed : and also a tender and refusal. So a 
 release. 
 
 Where to debt for rent on a demise of three rooms, the plea was, 
 that the plaintiff demised the said three rooms and another room, and 
 that he entered into the other room, but did not traverse the demise of 
 the three rooms only, it was held to be bad for want of such a tra- 
 verse (g). 
 
 It is now settled that in an action of debt on a simple contract, as this 
 is, the plaintiff may prove and recover a less sum than he demanded by 
 his writ (/.>). 
 
 Section V. Of Assumpsit for Use and Occupation. 
 Another remedy for the recovery of rent, where the demise is not by 
 deed, lies by action of assumpsit for use and occupation. 
 
 (a) 10 East, 48. (J) Bull. N. P. 169. (.) Esp. N. P. 217- Bull. N. P. 169, 
 
 (J) Ibid. (,) Bull. N. P. 170. Hard. 332. (/) 1 Saund. 283. n. 2. 
 
 (g ) i Saund. 2©6. (A) 1 H. Bl. R. 249.
 
 Sect. V.] Of Assumpsit for Use and Occupation. 349 
 
 In an action for use and occupation, the property tax will not be de- 
 ducted at nisi priu s from the rent due (a). 
 
 At common law it was holden, that assumpsit would lie for rent on 
 an express promise, but not on an implied promise, and that such ex- 
 press promise must have been made at the same time with the lease (b). 
 But now, 
 
 The stat. n G, 2. c. 19. s. 14. in order to obviate some difficulties 
 that many times occur in the recovery of rent, where the demises are 
 not by deed, enacts, That it shall be lawful for the landlord, where the 
 agreement is not by deed, to recover a reasonable satisfaction for the 
 lands, tenements, or hereditaments, held or occupied by the defendant, 
 in an action on the case, for the use and occupation of what was so 
 held or enjoyed ; and if in evidence on the trial of such action any 
 parol demise or any agreement (not being by deed,) whereon a certain 
 rent was reserved, shall appear, the plaintiff in such action shall not 
 therefore be nonsuited, but may make use thereof as an evidence of the 
 quantum of the damages to be recovered. 
 
 The action for use and occupation is founded on a contract ; and un- 
 less there were a contract express or implied, the action cannot be 
 maintained (r). 
 
 If there be an agreement by deed to demise, but the words do not 
 amount to an actual demise, an action for use and occupation is main- 
 tainable (V). 
 
 But a written agreement, though coming out of the possession of the 
 opposite party, cannot be given in evidence in any action unless it be 
 legally stamped. 
 
 Therefore where counsel were about to ask a party as to his occupa- 
 tion and payment of rent to the defendant in an ejectment, he was 
 stopped by Lord Kenton, who observed, that the occupation had been 
 under an agreement in writing, and the rent had been paid in pursuance 
 of it ; if, said his Lordship, the agreement cannot be given in evidence, 
 you cannot enquire as to the occupation ; the party might have been in 
 possession by licence and permission of the defendant, and not as te- 
 nant (e). 
 
 A. agreed in writing to pay the rent of certain tolls, which he had 
 hired, " to the treasurer of the commissioners :" held that no action 
 for the rent could be maintained in the name of the treasurer ; for the 
 contract is to pay the commissioners through the medium of their of- 
 fleer (/). 
 
 Where there is a note in writing expressing the quantum of rent or 
 the duration of the term, evidence of a parol agreement to annul or sub- 
 
 («) 2 Campb. 181. (/;) 2 Lev. 150. Bull. N. P. 138. (0 1 T. R. 3?>7- 
 
 (J) 4 Es P . R. 59. (e) a Esp. R. 724- (/) o Bos. & Pul. R- X47« 
 
 3
 
 350 Of Assumpsit for Use and Occupation. [Chap. XIII. 
 
 stantially to vary the written contract, is inadmissible ; else the statute 
 of Frauds would be eluded, and the same uncertainty introduced by 
 suppletory or explanatory evidence, which that statute has suppressed 
 in respect to the principal object (a). 
 
 Thus, where there was a written agreement that a lease should be let 
 of a house at 761. per ann. on which an action was brought for use and 
 occupation ; the defendant paid 26/. into Court. At the trial, the 
 plaintiff offered to give parol evidence, that beside the 26/. per ann. the 
 defendant was to pay the ground landlord 2/. \is. 6d, but this evidence 
 was rejected ; particularly as no evidence was offered of the actual pay- 
 ment of such rent (J>). 
 
 Parol evidence, indeed, of a verbal agreement cannot be received 
 where it appears that it was reduced to writing : and this even where 
 the written agreement, for want of being stamped, or for other infor- 
 mality or defect, was inadmissible (c) : for parol evidence cannot be 
 admitted to vary the substance of a written agreement (il). With re- 
 spect to collateral matters, however, it is otherwise -, for a person may 
 shew by parol proof who is to put a house in repair, or the like, con- 
 cerning which nothing is said in the written agreement. So, it may be 
 admitted to explain a deed or other instrument ; or to prove other con- 
 siderations than those expressed in a deed (e). 
 
 This action being founded on a contract either expressed or implied, 
 it is a general rule, that wherever the defendant uses or enjoys the pre- 
 mises by permission of the plaintiff [as his tenant,] he shall be liable in 
 this action (f). 
 
 So, this action may be maintained by a grantee of an annuity, after 
 a recovery in ejectment against a tenant who was in possession under a 
 demise from year to year, for all rent in his hands at the time of the 
 notice by the grantee, and down to the day of the demise : but not af- 
 terwards (g). 
 
 So after a recovery of possession of the premises, the plaintiff is en- 
 titled to the profits for use and occupation, to the time of the demise, 
 but not after, if he thinks fit to sue for them (h). 
 
 But an action for use and occupation and an ejectment, when applied 
 at the same time, are totally inconsistent : for in one, the plaintiff says 
 that the defendant is his tenant, and therefore he must pay him 
 rent ; in the other he says, that he is no longer his tenant, and there- 
 fore must deliver up the possession. He cannot do both (z). 
 
 This action therefore being founded on a contract express or implied, 
 will not lie where the possession of the tenant is adverse and tortious ; 
 
 {a) z Bl. R. 125c. 3 Wil?.a;6. (J>)% Bl. R. 1249. 
 
 (<:) 3 T. R. 528. 6 T. R. 464. (<.') a Bl. R. i*5°- 
 
 (e) % Str. 794. In notis. 8 T. R. 379. (/) 8 T. R. 327. (g) I T. R. 378. 
 
 \b) Cow p. 246. .1 T. R. 387. (0 Ibid. 
 
 8
 
 Sect. V.] Of Assumpsit for Use and Occupation. 351 
 
 unless indeed the plaintiff ceases to consider it as such, by waiving the 
 tort, and recurring to his remedy by this action on the contract (a). 
 
 The defendant in this action, as in all actions for rent, is not admit- 
 ted to call in question the plaintiff's title to the premises; or in any 
 way to impeach it. 
 
 Therefore, in an action for use and occupation by an incumbent 
 against a tenant of the glebe lands, the defendant cannot give evidence 
 of a simoniacal presentation of the plaintiff, in order to avoid his 
 title (£). 
 
 So, in an action for use and occupation, the plaintiff having given evi- 
 dence of payment of rent by the defendant for nineteen years, the defend- 
 ant would have gone into evidence to prove a title in another. Per WiU 
 met J.— Payment of rent and holding under a person for so long a time, is 
 conclusive evidence against the defendant, and he cannot set up a title 
 in another : and as to the objection that has been made, that the 
 defendant may be liable to two actions for the rent, by persons having 
 different titles, that cannot be the case ; for though another has title, yet 
 he cannot bring an action for the rent till he has made an entry, and re- 
 covered in ejectment ; [which entry need not now be actually made in 
 such case, but is supposed, 3 Bur. 1895. Run. Eject. 199.] and then it 
 must be trespass 'for the mesne profits (r). 
 
 But it was agreed, that though a defendant cannot controvert the 
 title of the plaintiff, yet he may give evidence to explain the holding 
 under him, as that he was executor during the minority of A. B. and 
 that his interest was then determined j for that admits the plaintiff's 
 title, during the time the defendant held under him (d). 
 
 An action for use and occupation is maintainable without attainment 
 upon the stat. 4 £5° 5 Ann. c. 16. s. 9, & 10. by the trustees of one, 
 whose title the tenant had notice of before he paid over his rent to his 
 original landlord ; though the tenant had no notice of the legal estate 
 being in the plaintiffs on the record (<?). 
 
 In an action for use and occupation, where the defendant has come 
 in under the plaintiff, he cannot shew that the plaintiff's title has ex- 
 pired, unless he solemnly renounced the plaintiff's title at the time, and 
 commenced a fresh holding under another person (f)> 
 
 In an action for use and occupation, where the defendant did not 
 come in under the plaintiff, the plaintiff can only recover rent from the 
 time he has had the legal estate in him, although he may have had the 
 equitable estate long before [g). 
 
 The rule that a tenant cannot conipel his landlord to interplead, does 
 not prevail, where the claim of a third person arises by the act of the 
 
 (a) Cowp. 146. 1 T. R. 387. (A) 5 T. R. $. (<0 Esp. N. P. %i. 
 
 (d) Ibid. s. c. (<•) i6East, 99. (/) 2 Campb. n. 
 
 (g) % Campb, 13. note.
 
 3o2 Of Assumpsit for Use and Occupation. [Chap. XIII. 
 
 landlord subsequent to the commencement of the relation of landlord 
 and tenant (a). 
 
 By the abovementioned statute ( r i G. 2. c. 19. s. 15.) it is enacted, 
 That where any tenant for life shall happen to die before or on the day 
 on which any rent was reserved or made payable upon any demise or lease 
 of any lands, S5V. which determined on the death of such tenant for 
 life, that the executors or administrators of such tenant for life shall and 
 may, in an action on the case, recover of and from such under-tenant, 
 if such tenant for life die on the day on which the same was payable, the 
 whole, or if before such day then a proportion of such rent, according 
 to the time such tenant for life lived, of the last year, or quarter of a 
 year, or other time in which the said rent was growing due. 
 
 [Respecting the above statute, see ante C. V III. S. I. tit. Rent, ap- 
 portionment of.^ 
 
 An executor brought an action for rent due to his testator in his 
 lifetime, and for other rent due in his own time, and there was 
 another count on a quantum meruit for the rent of another messuage, 
 in which he had not declared as executor. After judgment by default, 
 and a writ of enquiry executed, upon error brought, judgment was 
 reversed, because the demands were incompatible : — but perhaps it 
 would have been helped by a verdict, because for rent due in his own 
 time, he need not declare as executor ; and therefore, if it had been 
 tried, the Judge ought not to have permitted him to prove rent due to 
 himself in his own right (h). 
 
 The rule as to joinder in actions is, that only those causes of action 
 can be joined, that admit of the same plea, and the same judg- 
 ment (c). 
 
 An action for use and occupation will not lie, where the pre- 
 mises are let for a purpose illegal, or contra bonos mores; as to a 
 prostitute (<7). 
 
 An action for rent will not lie where the title is in dispute : the 
 Court therefore will not try a title by the action for use and occupation; 
 an ejectment is 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 (e). 
 
 The Pleas. — In assumpsit under the statute for use and occupation of 
 a house by permission of the plaintifF, nil habuit in tenementis is a bad 
 plea; for the action is founded on the promise, and therefore if the 
 plaintifF had an equitable title or no title at all, yet if the defendant 
 enjoyed by his permission, it is sufficient; for it is no more necessary 
 
 (a) U Ves. 333. (£) % Str. 1271. et iu I. 
 
 {c) 12 Mod. 18c. 1 Ld.Raym, 272. Willes, 120. (</) 1 Eip.R.13. 
 
 (*)MSS. Hil.T. 37 G. III.
 
 Sect. V.] Of Assumpsit for Use and Occupation. 353 
 
 for the plaintiff to say that it was his house, than in assumpsit for goods 
 it is necessary to say that they were his goods («). 
 
 But the plea would be good at common law, for there an interest is 
 supposed to have passed from the lessor (b). 
 
 Yet qu. ? whether at this day such plea would be admitted, even in 
 an action for rent at common law ; for if it would, the supposition of 
 an interest having passed would be a fiction, not in furtherance of the 
 ends of justice, but in destruction of them j and the rule laid down by 
 Lord Kenyoriy that " in an action for use and occupation it ought not 
 " to be permitted to a tenant, who occupies by the licence of another, 
 " to call upon that other to shew the title under which he let the 
 " land or premises," is not a mere technical rule, but is founded on 
 public convenience and policy ; and as it was adopted by the Court, in 
 conformity to the recognition of it in cases prior to the one then 
 before them, as well as on the grounds of reason and equity, it may 
 now be considered as a general rule, applicable to all cases of a similar 
 kind. 
 
 The defendant may in this action, upon the plea of non assumpsit, 
 which is the general issue, give in evidence any thing which proves 
 nothing due, as the delivery of corn or any other thing in satisfaction ; 
 or a release ; so he may give in evidence, performance (c). In short, 
 the question in assumpsit upon the general issue is, whether there was 
 a subsisting debt (d), or cause of action, at the time of commencing 
 the suit: therefore though a distinction has been taken that payment or 
 any other legal discharge must be pleaded ; yet that distinction is not 
 law ; but in both cases, the defendant is allowed to give in evidence any 
 thing that will discharge the debt (e). 
 
 But matters of law, in avoidance of the contract, or in discharge of 
 the action, are usually pleaded ; and it is necessary to plead a tender, 
 set-off, or the statute of Limitations (f). 
 
 Assumpsit lies against a lessee from year to year upon his agreement 
 to pay rent during his tenancy, notwithstanding his bankruptcy, and 
 the occupation of his assignees during part of the time for which the 
 rent accrued, which were pleaded in bar. Quare P whether a special plea 
 in bar, stating no facts but what might have been proved under the 
 general issue, but leaving other facts unanswered, which the general 
 plea would have put in issue, be good (g). 
 
 («) i Wils. 314. Bull. N. P. 139. Esp- N. P. 165. (/,) Ibid. (c) Bull. N. P. 151. 
 
 (O 1 Tidd's Pract. 59a. (?) Bull. N. P. 15a. (/) 1 Tidd's Pract. 593. 
 
 is) 8East > 3"- 
 
 A a
 
 C 354 ] 
 
 CHAPTER XIV. 
 
 Of the Remedies for and against Landlord and Tenant ; 
 
 wherein 
 
 Of the Actions of Ejectment and Trespass for Mesne 
 
 Profits for Recovery of Rent and Possession. 
 
 Section I. Of the Action of Ejectment at Common Law. 
 Section II. Of the Action for Mesne Profits. 
 Section III. Of a second Action of Ejectment. 
 
 Section IV. Of the Action of Ejectment upon the 
 
 Statute 4 G. 2. c. 28. 
 Section V. Of the Landlord's Remedy under the Statute 
 
 11 G. 2. c. ]Q> where the Premises are 
 
 vacant. 
 
 Section I. When an Ejectment lies> and the Proceedings 
 therein at Common Law. 
 
 OF the various remedies which the law affords for the breach of a 
 contract or the reparation of a wrong, none perhaps so inti- 
 mately concerns the respective relations of landlord and tenant, as 
 that admirable fiction of the courts of common law, called the action 
 of ejectment. 
 
 Besides the remedy given to a landlord, where the lease contains 
 a clause of re-entry on non-payment of rent, by the 6tat. 4 G. 2. c. 28. 
 s. 2. (of which hereafter) the action of ejectment lies at common law 
 to recover possession, on 
 
 The expiration of the lease by effluxion of time ; or 
 The determination of the lease by 
 
 Non-payment of rent, or 
 Non-performance of covenants. 
 Where the possession 15 vacant, or 
 Where the tenant is in possession.
 
 Sect. I.] When Ejectment lies, 8$c. 355 
 
 In order however, to explain the action as applicable to these par- 
 ticular cases, we must go into a general account of the nature of the 
 remedy by ejectment. 
 
 History of the Action. — By the antient common law, the only method 
 of recovering the pos?ession of land was by real action by writ of 
 entry or assize, and this in no case where the estate was less than 
 freehold : for a mere leasehold interest or term for years was in the 
 early period of our constitution, when feudal principles more strictly 
 prevailed, deemed of such little import, that no remedy was provided, 
 whereby the tenant could regain his possession in case he was 
 ousted by his landlord or by a stranger: against the former he could 
 proceed only upon his breach of covenant or agreement ; against the 
 latter indeed he might have his writ of ejectment, by which however 
 he could recover damages only, and not the possession (a). In those 
 times the ejectment was a mere personal action of trespass, and the 
 proceedings were by pone, or by capias and distress infinite (b). 
 
 In process of time, — some say so early as the reign of Ed. 4. (3 Bl. 
 Com. 201.) but certainly about the time of H. 7. when long leases 
 began to obtain,— the remedy by ejectment was, extended and rendered 
 more efficacious by the object of the action being completely changed, 
 and the term itself recovered. This was effected by the Courts of 
 Law resolving to give judgment in ejectment that the lessee in eject- 
 ment should recover possession of the land itself by the process of a 
 writ called an habere facias possessionem (c). 
 
 From this period, the practice in ejectment became wholly subject 
 to the controul of the Court, and a new method of trial, unknown to 
 the common law, was introduced (d). 
 
 Antient Practice. — It now became usual for a man that had a right 
 of entry into any lands, to enter thereon and seal leases, and then the 
 person that next came on the freehold ammo possidendi was accounted 
 an ejector of the lessee; by which means any man might be turned 
 out of possession, because the lessee in ejectment would recover his 
 term without any notice to tenant in possession •, so that the Courts of 
 Law made it a standing rule, that no plaintiff should proceed in eject- 
 ment to recover his lands against such a feigned ejector, without 
 delivering to the tenant in possession a declaration, and making him 
 an ejector and proper defendant if he chose it (e). — This rule of Court 
 became absolutely necessary upon the alteration of the object of the 
 action of ejectment, which was now in rem; for otherwise the Court 
 might have been instrumental in doing an injury to a third person, 
 because a declaration might otherwise be delivered to a stranger, a 
 feigned defence be made, and a verdict, judgment, and execution 
 
 (a) * Sell Pract, 16%, (0 Ibid. 16a. (e) Ibid. (*) Ibid. (,) .'bid. 
 
 A a 2
 
 356 When Ejectment lies, and the [Chap. XIV. 
 
 thereon obtained, whereby the tenant would have been ousted, with- 
 out notice of any proceedings against him (a). — Upon this notice to 
 the tenant in possession, and affidavit thereof made, it was usual for 
 the tenant in possession to move the Court, that, as the title of the 
 land belonged to him, he might defend the suit in the casual ejector's 
 name, which the Court, upon affidavit of that matter, used to grant, 
 and that the suit should be carried on in the casual ejector's name, the 
 tenant in possession saving him harmless; and then the casual ejector 
 was not permitted to release errors in prejudice of the tenant in 
 possession, as the suit was carried on in his name by rule of Court: 
 and the process for costs was taken out against the casual ejector who 
 was obliged to resort to the tenant in possession to recover back the 
 same, and put his bond of indemnification in suit upon his refusal to 
 pay them. 
 
 Such leases were to be actually sealed and delivered, otherwise the 
 plaintiff could maintain no title to the term ; they were also obliged to 
 be sealed on the land itself, otherwise it amounted to maintenance by 
 the old law to convey a title to any one, when the grantor himself was 
 not in possession (b). 
 
 Such was the original method of proceeding in ejectment when 
 the term was first begun to be recovered ; but one alteration by 
 degrees begat another, and fiction was heaped upon fiction. During 
 the exile of King Charles the Second, an entirely new mode of pro- 
 ceeding was invented and introduced by Lord C. J. Rclle, which 
 method has been followed ever since by the Courts, and is therefore 
 called the modern practice in contradistinction from the antient one 
 just described (c). 
 
 Modern Practice. — The new method of proceeding in ejectment 
 depends entirely upon a string of legal fictions ; neither actual lease, 
 nor actual entry, is made by the plaintiff nor actual ouster by the de- 
 fendant, but all are merely ideal, for the sole purpose of trying the 
 title. To this end, in the proceedings, a lease for a term of years is 
 Stated to have been made by him who claims title, to the plaintiff, 
 who is generally an ideal, fictitious person, who has no existence. In 
 this proceeding, which is the declaration, (for there is no other process 
 in this action,) it is also stated, that the lessee, in consequence of the 
 demise to him made, entered into the premises, and that the de- 
 fendant, who is also now another ideal, fictitious persou, and who is 
 called the casual ejector, afterwards entered thereon and ousted the 
 plaintiff, for which ouster the plaintiff brings the action. Under this 
 declaration is written a notice, supposed to be written by the casual 
 ejector, directed to the tenant in possession of the premises, in which 
 
 (<0 a Sell. Pract. 163. (*) Ibid. (c) Ibid. 
 
 3
 
 Sect. I.] Proceedings therein at Common Laxv. 357 
 
 notice the casual ejector informs the tenant of the action brought by 
 the lessee, and assures him, that as he, the casual ejector, has no title 
 at all to the premises, he shall make r.o defence, and therefore he 
 advises the tenant to appear in Court at a certain time and defend his 
 own title, otherwise he, the casual ejector, will suffer judgment to be 
 had against him, by which the actual tenant will inevitably be turned 
 out of possession («). 
 
 The declaration is then served on the tenant in possession, wich this 
 friendly caution annexed to it, who has thus an opportunity to defend 
 his tide, which if he omits to do in a limited time, he is supposed 
 to have no right at all, and upon judgment being had against the 
 casual ejector, the real tenant will be turned out of possession by the 
 sheriff^). 
 
 But if the tenant applies to be made defendant, it is allowed him 
 upon tins condition, That he enter into a rule of Court to confess at 
 the trial of the cause three of the four requisites to maintain the plain- 
 tiff's action, viz. the lease of the lessor, the entry of the plaintiff, and 
 the ouster by the tenant himself, who is now made defe idant 
 instead of the casual ejector; which requisites, as they are wholly 
 fictitious, should the defendant put the plaintiff to prove, he must of 
 course be nonsuited at the trial for want of evidence ; but by such 
 stipulated confessions the trial will stand solely upon the merits of the 
 title (c). 
 
 Upon this rule being entered into, the declaration is now altered by 
 inserting the name of the tenant instead of the fictitious name of the 
 casual ejector ; and the cause goes to trial under the name of the ficti- 
 tious lessee on the demise of A. B. (the lessor or person claiming 
 title,) against C. D, (the now defendant,) and therein the lessor is 
 bound to make out his title to the premises, otherwise his nominal 
 lessee cannot obtain judgment to have possession of the land for the 
 term supposed to be granted. But if he makes out his title in a satis- 
 factory manner, the judgment is given for the nominal plaintiff, and 
 a writ of possession goes in his name to the sheriff to deliver posses- 
 sion. But if the now defendant fails to appear at the trial, and to 
 confess lease, entry and ouster, the nominal plaintiff must then indeed 
 be nonsuited for want of proving these requisites, but judgment will 
 nevertheless in the end be entered for him against the casual ejector j 
 for the condition on which the tenant was admitted defendant is broken, 
 and therefore the plaintiff is put again in the same situation as if he had 
 never appeared at all. The same process, therefore, as would have 
 been had, provided no conditional rule had been made, must now be 
 pursued as soon as it is broken; but execution will be stayed, if any 
 
 {a) z Sell. Pract. 164. (*) Ibid. (c) Ibid.
 
 55 S When Ejectment lies, and the [Chap. XIV. 
 
 landlord, after the default of his tenant, applies to be made a de- 
 fendant, and enters into the usual rule to confess lease, entry, and 
 ouster (a). 
 
 Thus the practice of sealing leases upon the premises (except in the 
 case of vacant possession), and making an actual entry and ouster (un- 
 less to avoid a fine), are now dispensed with, and a more easy and ex- 
 peditious method is adopted, while the same substantial justice is done 
 to the tenant in possession, by proper notice being given him of the 
 service of the declaration: nor is there any hardship in compelling him 
 to confess lease, entry, and ouster, for they are mere formalities, and 
 have nothing to do with the merits of the case. — The great advantage, 
 indeed, which has resulted from this fictitious mode is, that being 
 wholly regulated by the Court, it has, from time to time, been so mo- 
 delled, as to answer in the best manner every end of justice and con- 
 venience (£), 
 
 An ejectment, therefore, may be defined a mixed action by which a 
 lessee for years, when ousted of his term, may recover possession, 
 and damages, and costs. It is real in respect of the lands, but personal 
 in respect of the damages and costs (c). 
 
 Who may have this Action. 
 
 Possession gives the person enjoying it a right against every man 
 who cannot shew a better title; the party therefore who would change 
 the possession, must first establish a legal title to it : for the proceed- 
 ings in ejectment were instituted in order to try who is entitled to the 
 possession of an estate on title (d). 
 
 In order to establish such legal .title, the party must have a right of 
 entry, or he cannot bring the ejectment ; for it will not lie in such cases, 
 where the entry of him that hath right is taken away L ; descent, dis- 
 continuance, twenty years' possession, or ocherwise ; and on those 
 things whereon an entry cannot in fact be made, no entry shall be sup- 
 posed by the fiction of the parties (e). 
 
 Therefore,, where the assignee of a bankrupt brought an ejectment 
 for part of the bankrupt's estate before the enrollment of the bankrupt's 
 estate made to him by the commissioners, he was nonsuited ; for the 
 assignment is by bargain and sale, which, under stat. 27 H 8. c. 16. is 
 ordered to be enrolled within six months : and it is enacted by the stat. 
 13 Eliz.c.7. and 28 J. 1. c. ig. that all the bankrupt's lands, tene- 
 ments, CSV. shall be sold by deed indented and enrolled; so that be- 
 fore enrollment, the assignees have no legal title (f). 
 
 But in the case of a common bargain and sale it is otherwise ; for 
 
 (a) z Sell. Pract. i6j. (&) Ibid. (c) Run. Eject. I. 
 
 {/) 7 T. R. 235- 0) Run. Eject. 15. 3 131. Com. 2c6. 2 Esp. N. P. 430. 
 
 (/) Ibid. 431.
 
 Sect. I.] Proceedings therein at Common Law. 359 
 
 there the estate passes by the contract, and is executed by the statute of 
 Uses ; whereas the commissioners of bankrupt have a power expressly 
 regulated by statute (a). 
 
 So, where tenant in tail works a discontinuance, as by a feoffment 
 in fee and dies, the issue in tail cannot maintain this action, for they 
 cannot enter. Such also is the case as to other descents which toll en- 
 tries (b). 
 
 The stat. 32 H. 8. c. 28. alters the common law, by giving a right of 
 entry to the wife or her heirs, after the death of the husband, who had 
 aliened lands and tenements of the inheritance of the wife: so that she 
 or her heirs may now support this action. 
 
 So, by stat. 11 H. 7. c. 20. it is enacted, That if any woman hav- 
 ing an estate in dower, or for life, or in tail, jointly with her husband, 
 or solely to her own use, but coming from him, shall alien, discontinue, 
 &c. or suffer a recovery, such shall be void; and the husband's heir, 
 or he who is entitled to the lands after her death may enter, and so 
 may maintain this action — Under this statute to enable the husband's 
 heir to enter upon the lands of the gift of the husband and aliened by 
 the wife against the statute, the remainder must have been limited to 
 the heirs of the husband, not to a stranger; for the statute was in- 
 tended for the benefit of the husband and his heirs (c). 
 
 Though a good and lawful title may subsist in the plaintiff, yet he 
 may be barred of his right of entry, and therefore of his power to re- 
 cover in this action, under the stat. 21 J. 1. c. \6. which enacts, That 
 no person shall make an entry into lands, z*fc. but within twenty years 
 after his right and title shall first accrue, with the usual savings for in- 
 fants, feme coverts, and persons insane, Ifc. 
 
 Therefore, if the lessor of the plaintiff is not able to prove himself 
 or his ancestors to have been in possession within twenty years before 
 the action brought, he shall be nonsuited. 
 
 This possession must be an actual possession, not an implied or pre- 
 sumptive possession merely. 
 
 Therefore, in ejectment for mines, the possession of the manor is 
 no evidence to avoid the statute, there being no entry within twenty 
 years upon the mines, which are a distinct possession, and may be a 
 different inheritance (d). 
 
 So also, a verdict in trover for lead dug out of the mine is no evi- 
 dence ; for trover may be brought on property without possession (e). 
 
 So, the possession of a manor is not the possession of a cottage built 
 thereon ; for if it were, the lord would have a better title to that than 
 to any other part of his estate (/'). 
 
 (a) Run. Eject. 15. 3 El. Com. 2c6. 2 Esp. N. P. 431- Sir T. Jones, 196. 
 
 (6) Lit. Sect. S9S- (0 Cro.Eliz. 2. (/) z Str. 1142, 
 
 (<) Bull, N. P. 102, s. c. (/) Ibid. 103,
 
 360 IVhen Ejectment lies, and the [Chap. XIV. 
 
 Receipt for rent by a stranger is no evidence of possession, so as to 
 take it out'of him in whom the right is, for it is no disseisin without 
 the admission of him who right has ; not even though he made a lease 
 to the tenant by indenture reserving rent, unless he make an actual en- 
 try. So, though the tenant declare that he is in possession for the 
 stranger ; though it may be proper to be left to a jury, especially if the 
 stranger have any colour of title (a). 
 
 If a declaration in ejectment has been delivered within twenty years, 
 and a trial had, whereby lease, entry, and ouster has been confessed, if 
 the plaintiff has been nonsuited in that action, and brings another 
 ejectment after the twenty years expired, the former confession of lease, 
 entry, and ouster, shall net be sufficient to save the running of the 
 statute against the plaintiff; for there must be an actual entry within 
 twenty years Z>). But 
 
 Possession for twenty years without interruption shall be a good title 
 in itself to enable the partv to recover in ejectment, without any other 
 title : for an uninterrupted possession for twenty years is like a descent 
 which tolls an entry, and gives a possessory right that is sufficient to 
 support this action (c). So that though the defendant be the person 
 who has lawful right to the premises, yet he cannot justify ejecting the 
 plaintiff who has had twenty years' previous peaceable possession : the 
 possession, however, must be peaceable and uninterrupted ; for repeated 
 trespasses from time to time will not gain a possession (d). 
 
 This action therefore, will not lie by the landlord for encroachments 
 by the tenant on the waste. 
 
 In such a case, Loid Kenyan revolted at the idea., that the tenant could 
 make the landlord a trespasser ; which, he said, would unavoidably be 
 the case, if the landlord could recover in this action. His lordship 
 clearly held, that if a tenant inclose part of a waste, and is in possession 
 thereof so long as to acquire a possessory right to it, such inclosure 
 does not belong to the landlord ; but, if the tenant has acknowledged 
 that he held such inclosed part of his landlord, this would make a dif- 
 ference {e). 
 
 The twenty years' possession in order to give a title and so bar an 
 ejectment, must be an adverse possession : for where it appears not to 
 be adverse, the statute of limitations does not run. 
 
 Therefore where a man made a mortgage as a collateral security, the 
 interest having been paid for twenty years and more, the mortgagee was 
 held not to be barred of bringing his ejectment, though the mortgagor 
 had continued for that time in possession : for their titles being the 
 same, there was no adverse possession (_/*). 
 
 So aho in ejectments by joint-tenants, the possession of one joint- 
 
 (a) Bull. N. P. 104. (b) Ibid. 10*. 0) Esp. N. P. 432. 1 Ld. Raym. 741. 
 
 (i) I Ves. 189. (e) 1 Esp. R. 460. (/) Ld. Raym. 740,
 
 Sect. I.] Proceedings therein at Common Law, 36*1 
 
 tenant or coparcener is the possession of the other, so as to prevent the 
 statute of limitations from running against the title of either: and 
 one jjint-tenant levy a fine, though it sever the jointure, r 
 amount to an ouster of his companion (a). 
 
 So, with respect to tenants in common, if one of them bring an ejec. 
 ment against the other, there must be an actual ouster and adverse pos- 
 session proved, in order to bar the defendant-, for though one tenant in 
 common may disseise another, it must be done by actual disseisin, and 
 not by bare perception of the profits only j for generally speaking, the 
 possession of the one is held to be the possession of the other (b). 
 
 Also, where two are in possession the law will adjudge it in him that 
 hath the right: for the statute never runs against a man but where he is 
 actually ousted or ciiGseised. 
 
 Where a right of entry is given in three months after notice of pre- 
 mises being out of repair, acceptance of rent after three months ex- 
 pired, does not prevent plaintiff from maintaining ejectment ; particu- 
 larly if the premises are not repaired at the time of the action being 
 brought (c). 
 
 What shall be deemed an actual ouster, so as to constitute an ad- 
 verse possession in one tenant in common against another, is matter for 
 the consideration of the jury. 
 
 Thus, thirty-six years' sole and uninterrupted possession by one tenant 
 in common, without any account to, demand made, or claim set up by 
 his companion, was held to be sufficient ground for the jury to presume 
 an actual ouster of the co-tenant, and they did so presume (cl). 
 
 So, if upon demand by the co-tenant of his moiety, the other re- 
 fuses to pay, and denies his title, saying he claims the whole and will 
 not pay, and continues in possession, such possession is adverse and 
 ouster enough (e). 
 
 In ejectments by tenants in common, an entry by one shall be good 
 for all, for he shall be supposed to enter according to his estate. — A 
 man cannot be disseised of an undivided moiety; and if a man be seised 
 of the whole, anil makes a lease to another of a moiety undivided, and 
 a stranger ousts the lessee, he must bring his ejectment of a moiety, 
 and so if they be both ousted, they must bring several ejectments ( /). 
 
 For, where two persons claim by the same title, there shall not in 
 general be an adverse possession presumed, so as to toll an entry of the 
 one, but the entry of the other being deemed always lawful, shall pre- 
 serve the unity of the title (g). 
 
 Thus, where the defendant made title under the sister of the lessor 
 of the plaintiff, and proved that she had enjoyed the estate above twenty 
 
 (a) Salk.zgj. (^) Co. Lit. 195. b. a. Ld. Raym. 829. 2 Salk. 422. s. c. aEsp. N.P. 431. 
 (c) iEsp.R. 393. (d) Cowp,2I7. 0) Ibid. 218. . (/) Hob. i20.Esp. N. P.434. 
 Salk. 285. (°) Co. Lit. 242. Esp.N. P. 434.
 
 562 When Ejectment lies, and the [Chap. XIV. 
 
 years, and that he had entered as heir to her, the Court did not regard' 
 it, because her possession was construed to be by curtesy, and not to 
 make a disherison, but by licence to preserve the possession of the bro- 
 ther, and therefore was held not to be within the intent of the statute. 
 But had the brother ever been in actual possession and ousted by his sis- 
 ter, it would have been otherwise, for then her entry could not possibly 
 be construed to be to preserve his possession (a). 
 
 So, the possession of one co-heir in gavelkind is not the possession of 
 the other, where he enters with an adverse intent to oust the other (b). 
 
 Where lights had been put out and enjoyed without interruption for 
 above twenty years during the occupation of the opposite premises by a 
 tenant, that will not conclude the landlord of such opposite premises, 
 without evidence of his knowledge of the fact which is the foundation 
 cf presuming a grant against him, and consequently will not conclude 
 a succeeding tenant who was in possession under such landlord from 
 building up against such encroaching lights (r). 
 
 If there be several lessors and you lay the declaration quod demiserunt t 
 you must shew in them such a title that they might demise the whole ; 
 and therefore if any of the lessors have not a legal interest in the whole 
 premises, he cannot in law be said to demise them •, for it is only his 
 confirmation, where he is not concerned in interest (d). 
 
 But, where one claims under or through the other, there shall be no 
 adverse possession. 
 
 Therefore, though if a cottage be built in defiance of the lord of a 
 manor, and quiet possession of it has been had for twenty years, it seems 
 it is within the statute, and the lord shall not recover ; yet if it were 
 built at first by the lord's permission, or any acknowledgment had been 
 since made (though it were a hundred years since), the statute will not 
 run against the lord ; for the possession of a tenant at will for ever so 
 many years is no disseisin -, there must be a tortious ouster (e). 
 
 A lessor of a plaintiff may recover in an ejectment a reversionary in- 
 terest subject to a lease and a right of present possession in another (/)• 
 
 Husband and wife may join in a lease, without saying that it was by 
 deed, though formerly held to be necessary (g). 
 
 A mortgagee may maintain an ejectment in order to obtain possession 
 of the mortgaged premises or estate. — But a distinction is to be observed 
 where the ejectment is against the tenant holding under a lease prior to 
 the mortgage ; and where against the mortgagor himself, or against a 
 tenant in possession under a lease or demise made subsequent to the 
 mortgage (h). 
 
 For where lands are let for years and afterwards mortgaged, the te- 
 
 ( a ) Bull. N. P. 102. Co. Lit. nz.b. (l>) i Bl. R. 6/j. (<r) n East, 372. 
 
 (J) Bull. N.P. 107. 0) (bid. 104. {/) 1 T. R. 761. in n. 
 
 {£) a Co. 61. E sp . N. P. 449. (/') Ibid - 435-
 
 Sect. I.] Proceedings therein at Common Laic. S63 
 
 nant's possession is protected, and he cannot be turned out by the 
 mortgagee. The Courts however now permit the mortgagee to proceed 
 by ejectment against such tenant, if he has given notice to him before 
 the action that he does not mean to disturb his possession, but only re- 
 quires him to pay the rent to him, and not to the mortgagor m). 
 
 But a mortgagee may recover in this action against a tenant who 
 claims under a lease from the mortgagor granted after the mortgage, 
 without the privity of the mortgagee, without giving such notice; tor 
 the mortgagor has no power, express or implied, to let leases not sub- 
 ject to every circumstance of the mortgage, and therefore such lessee is 
 a trespasser, disseisor, and wrong-doer, and may be turned out by the 
 mortgagee without notice to quit (3). 
 
 So, if the mortgagee assign the mortgage, and the assignee assigns to 
 another, tnis last assignee may maintain this action for the mortgaged 
 premises (c). 
 
 A second mortgagee who takes an assignment of a term to attend the 
 inheritance, and has all the title deeds, and had no notice of the first 
 mortgage, may recover in ejectment against the first mortgagee (J). 
 
 The devisee of a term of years may maintain ejectment to recover 
 the term devised; but he must shew the assent of the executor; which 
 will be sufficiently done by proof of the executor having paid a certain 
 sum, where the term was devised to him for life, he paying to a parti- 
 cular party such sum ,V). 
 
 But, in the case of the devise of a freehold, the devisee may imme- 
 diately, and without any possession, maintain an ejectment for the lands 
 devised; for after the testator's decease, the law casts the freehold on 
 the devisee: and even should the heir enter and die seised, and a de- 
 scent be cast, yet, it is said, the devisee may enter (unless he be barred 
 by a fine levied by the heir and five years' non-claim) and maintain an 
 ejectment (f). 
 
 Tenant by elegit may maintain this action in order to be put into pos- 
 session under the elegit^ of the lands returned by the inquisition before 
 the sheriff (g). 
 
 The conusee of a statute-merchant also may bring this action. 
 
 The assignees of a bankrupt may maintain an ejectment for a term of 
 years or lands which belonged to the bankrupt: for by the assignment, 
 all the bankrupt's property, real and personal, is vested in the assignees, 
 under stat. 13 Eliz. 7. s. 2. and therefore they must be invested with all 
 the power necessary to get into possession. 
 
 But the assignment only operates on lands in the bankrupt's posses- 
 sion at the time of the assignment made ; for as to future real estates, 
 there must be a new bargain and sale (b). 
 
 0) Doug. 282. Ibid. 23. in n. (h) Ibid. 21, 22. (c) Salk. 245. (/) 1 T. R. 755. 
 
 (*) 1 Sir. 70. (/) Co. Liu »4», b. {/j Doug. 473. Bull, N. P. 134. (/-; 1 Atk. aj*.
 
 C64f When Ejectment lies, and the [Chap. XIV. 
 
 A sale by the commissioners of lands of which the bankrupt is seised 
 in tail by deed inrollcd, shall have the same effect to bar the intail as if 
 a recovery had been suffered of them by stat. 21 J. i.e. 10. s. 12. 
 
 So, an award under a submission to arbitration, will give a good title, 
 on which to maintain this action. 
 
 Thus, where ejectment was brought for certain lands, on several de- 
 mises of Grevith, Morris, and others, to support the title of the lessors 
 of the plaintiff, a submission to arbitration by bond from Morris, and 
 another, respecting these lands, was given in evidence, and an award 
 by R Sheldon, and R. M- Phillips, Esqrs. the arbitrators, that the lands 
 were the property of Morris, and this was relied on as conclusive evi- 
 dence of the title of Morris. The counsel for the defendants objected 
 that this was not sufficient, for that the award could convey no title. 
 It might have been enforced by rule of Court, or action on the bond, 
 if the possession was refused by the defendant : but that it did not 
 avail there. Lawrence, J. " I am of a different opinion. The parties 
 chose these gentlemen as judges to determine the right between them. 
 They have determined that right, and their decision is binding on the 
 parties, and I think is conclusive evidence of the right between them 
 here." Verdict for the plaintiff". The learned judge's opinion was con- 
 firmed by the Court of K. B. on a motion for a new trial in Mich. T. 
 1802 (*). 
 
 If a rent-charge be granted to any one, with a proviso that if the rent 
 be in arrear it shall be lawful for the grantee, his heirs and assigns, 
 to enter and hold the lands out of which the rent-charge is granted till 
 he shall be satisfied out of the arrears : this shall give to the grantee 
 such an interest that he may make a lease of the land by which he may 
 maintain his ejectment (b). 
 
 The committee of a lunatic may bring an ejectment ; bu i- it must be 
 in the name of the lunatic ; for the committee is but as bailiff, and 
 cannot make leases of the land (<r). 
 
 An infant may maintain this action ; but he must name a good plain- 
 tiff, who may be answerable for the costs (d). 
 
 Executors may maintain ejectment for land let to their testator for 
 years, if the testator is ousted ; for by stat. 4 E. c. 6. an action is given 
 to executors for goods taken out of their testator's possession, and the 
 act extends to this case, because the term itself is recovered. — So, 
 if the executors themselves of the lessee for years are ousted, they 
 may have either a special writ on the case, or an action of eject- 
 ment (<?). 
 
 (j) Doc ex dem. Greville and others v. Roper. At Hereford Oxford Summer Assizes, 
 1802. T.'s MSS. (L) 1 Saund. 112. I Lev. 170. 
 
 („-) Hob. 215. Hutt. 16. 2 Wils. 130. 00 l Str. 694. 
 
 (<•) Es P . N. P. 439- 3 T. R. 13. % Atk. 286. Co. Lit. 129.
 
 Sect. I.] Proceedings therein at Common Law. 365 
 
 The administrator also of a yearly tenant as long as the lessor and 
 lessee pleased, may maintain an ejectment ; for the administrator has 
 the same interest in the chattel as the intestate had. — So if the spiritual 
 court grant administration pendente lite f such an administrator may bring 
 this action. 
 
 An alien cannot maintain an ejectment, for he cannot take lands by 
 descent. 
 
 As to the issue of aliens, and to children born out of the realm, it 
 is settled by stat. 25 E. 3. s. 2. that children whose fathers and mothers, 
 at the time of their birth, should be liege subjects of England, shall be 
 inheritable to lands within the kingdom, though such children were 
 born out of the kingdom ; and by stat. 7 Ann. 5. and 4 G. 2. s. 4. all 
 children born out of the ligeance of the crown of Great Britain, whose 
 fathers are natural-born subjects, shall be deemed natural-born subjects 
 and so may inherit lands. 
 
 When a corporation aggregate is lessor of the plaintiff, it is said, they 
 must give a letter of attorney to some person to enter and seal a lease 
 upon the land, and therefore the plaintiff ought in such case to declare 
 upon a demise by deed, (for they cannot enter and demise upon the 
 land as natural persons can) though this will be aided after verdict [a): 
 however, this seems to be unnecessary now ; for this being a fictitious 
 action, the demise need not now be set out to be by deed (b). 
 
 So, a corporation sole may bring ejectment : as a bishop against the 
 copyholders of a manor belonging to the bishoprick, for a forfeiture 
 committed while the see was vacant ; and the lord of a manor may 
 bring this action in the like case (e). 
 
 ~ But where a pauper had been put in possession of a cottage forty 
 years ago, by the then existing overseers of the poor, and had conti- 
 nued in the parish pay, and the cottage had been from time to time re- 
 paired by different overseers, till two years ago, when the pauper dis- 
 posed of it to the defendant and went away : yet it was held, that the 
 existing overseers could not maintain ejectment for it, having no deri- 
 vative title as a corporation from their predecessors, so as to connect 
 themselves in interest with the overseers by whom the pauper was put 
 in possession ; and the pauper having done no act to recognize his hold- 
 ing under the demising sets of overseers (d). 
 
 But trespass cannot be maintained against a corporation as such ; yet 
 the lessor is not without remedy ; for at any rate the tenancy may be 
 determined by notice to the corporation served on its officers ; and if 
 after such determination, the cattle of any other person be found upon 
 the premises they may be distrained (e). 
 
 {a) Bull. N. P. 98. (i) 1 L-d. Raym. 136. Run. Eject. 149. 
 
 (<) Bull. N. P. 107. Esp. N. P. 440. (</) 14 East R. 488. (e) 8 East, 2 jo.
 
 566 When Ejectment lies, and the [Chap. XIV. 
 
 A copyholder, if ejected by his lord, may maintain ejectment against 
 him (a) ; foi though he is called a tenant at will, yet it is according to 
 the custom of the manor, and he cannot be nut out while he performs 
 his services (b). — But in such cases it seems to be necessary that he 
 should be empowered either by the custom of the manor or the licence 
 of the lord, to make a lease : but even without such a power the copy- 
 holder can maintain ejectment against all persons but the lord (c). 
 
 If the heir apparent of a copyholder in fee, surrender in the lifetime 
 of his ancestor and survive him, the heir of such surrenderor is not 
 estopped, by that surrender of his ancestor, from claiming against the 
 surrenderee (d). For, in order to pass an estate by surrender, the es- 
 tate must pass into the hands of the lord, through which it must be 
 taken ; and a fine differs from the case of a surrender •, for that will be 
 good against the heir by estoppel, although it passes no estate at all : 
 but if a surrender be not good, there will be no estoppel (e). 
 
 So the party claiming bv descent has as complete a title without ad- 
 mittance as with it, against all the world but the lord (f) : wherefore 
 the court will not grant a mandamus to compel the lord to admit such a 
 copyholder : though generally the lord is compellable by mandamus or 
 decree, to admit ; as in case of a surrender (g). 
 
 So, a widow entitled to her free-bench may maintain this action be- 
 fore admittance ; for it comes out of the estate of the husband : and is 
 a customary right, nomine dotis, and so declared by Brarton (Jo). 
 
 But in the case of surrender, no complete title vests in the surren- 
 deree rill admittance, for till then it remains in the surrenderer : and 
 if he dies, it is so much in him that his heir may maintain eject- 
 ment (i). 
 
 If, however, a surrender be made, the admittance shall relate to that 
 time, so that the surrenderee may recover on a demise laid between the 
 time of surrender and admittance (k). 
 
 For there is no rule better founded in law, reason and convenience 
 than this, That all the several parts and ceremonies necessary to com- 
 plete a conveyance shall be taken together, as one act; and operate from 
 the substantial part by relation : thus, livery relates to the feoffment • 
 inrollment to the bargain and sale •, a recovery to the deed that leads to 
 the use •, so admittance shall relate to the surrender, especially when it 
 is a sale for a valuable consideration (/). 
 
 (a) 8 East, z;,o. (3) Cro. Eliz. 53/. (r) Ibid. 676. 
 
 (J) 3 T. R. 365. («) 1 Ves. 130. (/) 2 T. R. 197- 1 wils ' 2? > 
 
 Or) 5 Bur. 2787. (I) Hint. iSHob. 181. aDanv. Abr. 184- Ambl. S<?9- 
 
 (0 Yelv. 144. Bull. N. P. ic8. aWils. 13. 1 East's R. (>\l. 3 T. R. 169. 
 WiT. R. 600. (/) 5 I3ur. 2787.
 
 Sect. I.] Proceedings therein at Common Law. 367 
 
 For what this Action will lie. 
 
 An ejectment will lie for nothing of which the sheriff cannot deliver 
 possession under an execution : therefore it will not lie for incorporeal 
 hereditaments, as a rent, common per cause de vicinage^ which is a mere 
 permission, or other thing lying in grant, qua neque tangly nee videri 
 posjunt (a). 
 
 But it will lie for common appendant or appurtenant, for the sheriff 
 by giving possession of the land gives possession of the common (b\. 
 
 The stat. 32 H. 8. c. 57. enacts, That where any person shall have 
 an estate of inheritance in tithes or other spiritual profits which shall 
 be in lay lands, he may maintain an ejectment or other action for them. 
 — This action is now allowed where the tithes are in the hands of the 
 clergy (c). 
 
 An ejectment lies for small tithes : therefore the action has been 
 adjudged to lie for wool, being tithe; and by the same reason for an 
 
 egg (d). 
 
 An ejectment will lie by the owner of the soil for land subject to a 
 passage over it, as the king's highway : for the king has nothing but the 
 passage for himself and his people, but the freehold and all profits be- 
 long to the owner of the soil, so do all trees upon it, and mines under 
 it ; therefore the owner may carry water-pipes under it (<?). 
 
 But it shall be recovered subject to the easement ; which the owner 
 may get discharged by a writ ad quod damnum {/)■ 
 
 An ejectment for a manor, generally, is bad, without expressing the 
 number of acres for services belonging to the manor (g). 
 
 An ejectment will lie for a church ; but it must be demanded by the 
 name of a- messuage. In this case, it was said, that the curate may 
 have a rule to defend quoad a right of entry to perform divine service ; 
 but that case has been over-ruled {h). 
 
 So an ejectment for " a certain place called the vestry in D." was 
 held well enough (:'). 
 
 This action lies for an orchard ; which may be demanded in the pre- 
 cipe either by that name, or by the name of a garden (k). 
 
 So, it lies for a stable, and a cottage (/). 
 
 It seems to be the better opinion, that an ejectment will not lie for a 
 close, and that giving it a particular name will not make it sufficiently 
 certain for the sheriff to be able to deliver it : So it will not lie for " a 
 piece of land {m)" 
 
 (a) Bull. N. P. 99. (i) Ibid. (0 £sp. N. P. 428. 
 
 (i) a Ld.Raym. 789. (,) Bur. 143- (/) Ib >d. 
 
 (g) Esp. N. P. 4 a8. Hetl. 80. (h) Esp. N. P. 418. Salk. 256. 
 
 (0 3 Lev. 96. (i) Cro. Eliz. 854. Cro. Jac. 654, (J) Run. Eject, 122. 
 
 (*) Ibid, Salk. 3,54. Cro. Jac. 43;. 654.
 
 363 When Ejectment lies, and the [Chap. XIV. 
 
 Nor for the third part of a close, or fourth part of a meadow, with- 
 out setting forth the particular contents or number of acres ; and such 
 number should be stated with certainty, and not by estimation ; also the 
 nature of the land, as whether meadow, pasture, arable, $5V. should 
 be mentioned (a). 
 
 But for a close called D. containing three acres of land, was held 
 well enough ; for " land" signifies arable land ; therefore both quantity 
 and quality were specified. The cases, however, on this point are con- 
 tradictory [b). 
 
 Ejectment for " a messuage or tenement" is too uncertain ; the word 
 « tenement" being of more extensive signification than the word " mes- 
 suage ;" consequently it is uncertain what is demanded by the eject- 
 ment. For the same reason it has been held that it will not lie for a 
 tenement only (e). 
 
 Therefore, where in ejectment, the plaintiff declared of " one mes- 
 suage or tenement" and had a verdict ; it was moved in arrest of judg- 
 ment, because an ejectment will not lie of a tenement •, and « messuage 
 or tenement" is so uncertain that the sheriff cannot tell of what he shall 
 give possession ; for a tenement may be of an advowson, a house or 
 land of any kind. Wihnot C. J. — To be sure there are many old cases, 
 where judgments in ejectment have been arrested for this supposed un- 
 certainty ; but I do not recollect any very modern case : There was a 
 late case in B. R. where the declaration was of a messuage and tene- 
 ments, and that Court gave leave to strike out the words " and tene- 
 ments," and to proceed for the messuage. I think " a messuage or te- 
 nement," in common parlance, means a messuage ; and at this time of 
 day, no mortal imagines that a tenement means any thing but a dwell- 
 ing-house, for by long use it has acquired that definite signification. — 
 Hesitante curia , a rule was made to shew cause why judgment should 
 not be arrested (d). 
 
 This matter came on again, and was debated by counsel on both 
 sides : when the Court seemed inclined to get over this objection if pos- 
 sible, and took further time to consider, until the last day of the term : 
 [Note. It was first before the Court on the second day of Term.] but 
 at last they thought themselves bound by the cases cited, and (against 
 their inclination) arrested the judgment. 
 
 But it is questionable, whether the reason on which the objection is 
 founded, ought at present to prevail ; inasmuch as the sheriff now de- 
 livers possession of the premises recovered, according to the direction 
 of the plaintiff himself (e). 
 
 (■/) Run. Eject. 123. (p) Ibid. Cro. Jac. 435. 
 
 (c) Run. Eject. 124. Cro. Eiiz, 186. I East's R. 441. (jf) 3 Wils. ij. 
 
 (e) Pun. Eject. 124.
 
 Sect. I.] Proceedings therein at Common Law. 3GQ 
 
 An ejectment for a messuage and tenement has been held good after 
 verdict (a). 
 
 So, a messuage or tenement, with other words expressing its mean- 
 ing, is good ; as " a messuage or tenement called the Black Swan ;" for 
 the addition reduces it to the certainty of a dwelling-house (Z>). 
 
 So, for a messuage or burgage in H. is good ; because they signify 
 the same thing in a borough. — So, for a messuage or dwelling-house 
 for they are synonymous terms (c). 
 
 So, ejectment for a house is good : but it is said that in the precipe it 
 ought to be demanded by the name of " a messuage (d)." 
 
 So, ejectment lies for part of a house ; as of a chamber in a house ; 
 or of one room in a house (f). 
 
 But an ejectment of a kitchen was determined to be bad; for though 
 the word be well understood in common parlance, yet because any 
 chamber in a house may be applied to that use, the sheriff hath not cer- 
 tainty enough to direct him in the execution •, and the kitchen may be 
 changed between judgment and execution (f). 
 
 The courts have long discontinued the rules which govern the precipe, 
 and allow many things to be recovered in this action, which cannot be 
 demanded in that writ. Indeed it has repeatedly been determined that- 
 such precise certainty is not requisite in ejectment, as in a precipe quod 
 reddat ; in which it is necessary to describe the lands demanded once, at 
 least, with certainty and precision, that the defendant may know what 
 he is to defend. Even in that proceeding, whenever the term used, ei- 
 ther in respect to quantity or quality, was sufficiently certain and noto- 
 rious to answer that purpose, it was good, though not particularly 
 named in the Register. — Of late years many things have been improved 
 by art, which having required new appellations, are now not only per- 
 fectly understood by the law, but familiar to common understanding, 
 though not to be found in antient law-books. Words and names are 
 arbitrary : and as men contracted by such new appellations, it was but 
 reasonable to permit the remedy to follow the nature of the contract. 
 Indeed, whilst ejectments were compared to real actions, and argu- 
 ments were drawn by analogy from them, they were of course fettered: 
 and this was very much the case, till after the reign of James the First. 
 But of later times, an ejectment has been considered with more lati- 
 tude and greater liberality, as a fictitious action to try titles with more 
 ease and dispatch, and with less expence to the parties (g). 
 
 Even formerly an ejectment would lie for a hop-yard. — So, for alder- 
 carr, a provincial term well known in Norfolk, where it signifies land 
 covered with alders. — In Yorkshire, it is common to bring this action 
 
 (j)iT.R. 11. {b) 1 Ld. Raym. 191. Cov.;p. 350. Run. Eject. 1:5. 
 
 00 Ibid. (./) Ibid. 122. Cro. Jac.654. 0) - Sn '- 6 9- c ' 3 Wils. 49. 
 
 (/)Run. Eject. 122. fjj) Ibid. 126. 
 
 13 b
 
 570 When Ejectment lies, and the [Chap. XIV. 
 
 for cattle-gates, agreeable to which, it has been held, that an ejectment 
 will lie for a beast-gate ; a term used in Suffolk to denote land and com- 
 mon for one beast. A cartle-gate is a distinct thing from a right of 
 common ; it passes bv lease and release ; cannot be devised but accord- 
 ing to the statute of Frauds : and has been decided to be a tenement, 
 within stat. 13 C5"" 14 C. 2. c. 12. for the purpose of gaining a settle- 
 ment (a). 
 
 Where an ejectment was brought for a croft and an acre of meadow, 
 the plaintiff had a verdict, and a special judgment for his acre of mea- 
 dow, releasing the costs 2nd damages for all ; for he was allowed his 
 costs, because by the judgment he had a just cause of suit against the 
 defendant. 
 
 So, this action will lie for fifty acres of furze and earth, and fifty 
 acres of moor and marsh (£). 
 
 It lay, also, for so many acres of bog in Ireland, where that word 
 has but one signification and comprehends only one sort of land. — So, 
 it will lie for mountain in Ireland, because the word mountain is rather 
 
 a description of quality than the situation cf the land So, for " a 
 
 quarter of land," in Ireland, for it may be a term as well known there 
 as mountain is : and that the Courts here will intend (c). 
 
 An ejectment may be brought for ten acres of wood and ten of 
 underwood ; for they are of different natures : and even if otherwise 
 his petit um is no objection in an ejectment (tl). 
 
 Whether it will lie for a fishery seems rather doubtful ; the old cases 
 are against it ; but the more modern opinion inclines to support the ac- 
 tion ((?). For though an ejectment de piscaria in such a river has been 
 holden ill, and the action will not lie pro quodam rhulo, she aqua cursu 
 called D. because it is impossible to give execution of a thing that is 
 transient and always running : the doubt however seems to apply merely 
 to the name by which it is recoverable, for an assize will certainly lie 
 for a piscary, and there is no doubt that a fishery is a tenement •, tres- 
 pass will lie for an injury to it, and it may be recovered in an ejectment; 
 and where a fishery is demised, it will be presumed that the soil passed 
 along with it (/). 
 
 But it lies for a boilary of salt •, for that is not, like a piscary, tran- 
 sient and running, but the water is fixed within a certain space and 
 may be taken to be part of the soil ; and by the grant generally of a 
 boilary of the soil itself, passes (g). 
 
 An ejectment however for a water-course or stream of water is ill, 
 for possession of it cannot be delivered: it should be of so much " land 
 covered with water (/.>)." 
 
 (.,) Run. Eject. 126. (/') 5 Eur. 2672. (0 Run. Eject. 128. 
 
 (d) Ibid. 129. (f) Ibid. 131. (/) 1 T. R. 361. (g) Run. Eject. 131, 
 
 (/. v Esp. N. P.4S8. Ytlv. 143.
 
 Sect. I.J Proceedings therein at Common Law. 3?1 
 
 This action lies for the first crop; for the first grass, .prima tonsura, 
 h the best profit of the property, wherefore he who has it is esteemed 
 the proprietor of the land itself, till the contrary be proved {a). 
 
 So an ejectment lies for herbage; herbage being the most signal profit 
 of the soil, and the grantee having at all times a right to enter and take 
 it (/■). 
 
 So, it should seem, this action would lie for the hay-grass and after- 
 math of a meadow ; for the same reason (c). . 
 
 So, it will lie for a sheep-walk •, as pro pastura centum avium, that is, 
 as much land as will feed one hundred sheep (cl). 
 
 But it will not lie for pannage ; that not being the immediate produce 
 of the soil itself, but merely the masts that fall from the trees, on which 
 the swine feed (e). 
 
 An ejectment lay at common law for a rectory, which consisting of a 
 church, glebe lands and tithes, has been said to resemble a manor ; the 
 church being compared to the mansion-house, the glebe lands to the 
 demesnes, and the tithes to the services. 
 
 Chapels having become lay inheritances, are recoverable in ejectment 
 like other lay estates; a chapel should however be demanded by the 
 name of a messuage. 
 
 Ejectment will not lie for encroachments on the waste, made by the 
 tenant. 
 
 On a lease of ground to build on, if the building corresponds with, 
 the abuttals, though they do not with the measured distance, as set out 
 in the lease, if the lessor has seen the progress of the building without 
 objection made, he shall not be allowed to claim the part inclosed upon, 
 but his acquiescence shall be presumed (_/). 
 
 So, where a man suffers another to build on his ground without set- 
 ting up a right title till afterwards, a court of equity will oblige the 
 owner to permit the person building to enjoy it quietly (g). 
 
 Of tut Action of Eject went } where the Tenant is in Pos- 
 
 session* 
 
 As the old mode of proceeding must be adhered to in very few cases, 
 we have noticed those cases under a separate head; conceiving that plan 
 to be more perspicuous, than introducing them incidentally in treating 
 of that part of the subject which regards the modern method of carry- 
 ing on the action. 
 
 Having, therefore, concisely stated the general principle and practice 
 of this action, and enumerated the cases in which, and the things for 
 
 (.?; Cro. Car. 36;. (b) Hard. 33c. (e) 2 T. R. 45?- 
 
 (rf) Run. Eject. 133. (e) Hid. (/) Run. Eject. 249. 
 
 (S) 2 A-.k. 83. 3 Ibid. 693= , , 
 
 B b 2
 
 372 When Ejectment lies, and the [Chap. XIV- 
 
 what, it lies, we proceed more particularly to consider the present 
 practice in common, and indeed with the exception mentioned, in all 
 cases. 
 
 The cases that more immediately apply to the subject of this work, 
 are those in which a landlord is compelled to have recourse to this re- 
 medy in consequence of 
 
 I st, His tenant holding over without his permission and against his 
 consent after the term has expired by effluxion of time : for a man may 
 come in by rightful possession and yet hold over adversely without a 
 title, and ii he does, such holding over, under circumstances, will be 
 equivalent to an actual ouster (a). 
 
 idly, His tenant determining the lease by non-payment of rent, or 
 non-performance of covenants, where a right of re-entry and forfeiture 
 are conditioned on the breach of them. 
 
 In these cases the modern method of proceeding prevails, for the 
 nature of which we refer the reader to the introductory part of this 
 title. 
 
 The proceedings in the Court of King's Bench may be either by bill 
 or original, but the latter mode is preferable, as no writ of error can be 
 brought thereon except in Parliament, — In the Common Pleas they are 
 always by original (b). 
 
 The declaration and notice are the first process, no writ being sued 
 out (c). 
 
 Ejectment being a local action, the venue must be laid in the county 
 in which the premises are situate. Proceedings being in rem, the effect 
 of the judgment cannot be had, if the venue be laid in a wrong place. 
 Possession is to be delivered by the sheriff of the county, and as trials 
 in England are in particular counties, the officers are county officers : 
 the judgment therefore could not operate, if the action was not laid in 
 the proper county (d). 
 
 But the premises being laid to be in Farnham, and proved to be in 
 Farnham Royal, is not a fatal variance, unless it be shewn that there 
 are two Farnhams (e). 
 
 As the plaintiff must recover by the strength of his own title, he 
 must shew a good and subsisting one at the time of the ejectment 
 brought, and therefore though the plaintiff by the new method of pro- 
 ceeding is not obliged to make an actual entry, or a real lease, yet he 
 must lay the commencement of the supposed lease in his declara- 
 tion preceding the ouster and ejectment of the defendant ; because the 
 wrong complained of by the plaintiff is, that the defendant entered 
 upon his possession, which he hath title to by virtue of the demise 
 
 {a) Cowp. ai8. (i) % Sell. Pract. 168. (.-) Ibid. 
 
 (d) 6 Mod. sua. Cowp. i;6. (0 J 3 East's R. 9.
 
 Sect. I.] Proceeding"! therein at Common Law. 573 
 
 mentioned in the declaration ; therefore if the ejectment and ouster 
 should be laid before the commencement of the lease, though such 
 ouster be wrong ; yet the plaintiff ought not to complain of it, for it 
 was no wrong to him, inasmuch as by his own shewing it was done be- 
 fore his title commenced (a). 
 
 Where a demise was laid on the 24th of June, to hold from the 
 said 24th of June, by virtue of which on the day and year last men- 
 tioned he (the plaintiff) had entered, and the defendant afterwards (to 
 wit) on the 24th of June, had evicted him, it was held to be bad, for 
 from being exclusive, the lease did not commence till the 25th of 
 June (b). 
 
 The word " from" however has since received a more liberal con- 
 struction, and « from the day of the date" are now held to import ei- 
 ther inclusively or exclusively, so as to give effect to the deed, and to 
 support the intention of the parties (c). 
 
 But where possession had been demanded on the 5th of October of 
 the defendant, who had been tenant at will to the lessor of the plaintiff, 
 and an ejectment was brought, and the demise was laid on the 1st of 
 October, it was adjudged that the plaintiff could not recover, the tenancy 
 not having been determined until after the day of the demise in the de- 
 claration (d). 
 
 In ejectment on the demise of an heir by descent, the demise was 
 laid on the day the ancestor died, and held well enough after verdict ; 
 for as to the fraction of a day, a fiction of law may heal, but shall not 
 hurt (e). 
 
 So, where the ejectment was brought by a posthumous son, and the 
 demise laid from the time of his father's death, Lord Hardiukke in- 
 clined to think that it was good, and that the defendant would be 
 estopped to say he was not born at the time of the demise laid, by stat. 
 10 & 11 Jr. 3. c. 16 (/). 
 
 But it is not necessary to lay any day certain upon which the plaintiff 
 entered ; it is sufficient to lay a demise after the title accrues, and then 
 say in general " that he afterwards entered," tsfc. for so are the prece- 
 dents (g). 
 
 The declaration should state the ejectment by the defendant to have 
 been done subsequent to the date of the supposed lease made to him by 
 the lessor of the plaintiff; for otherwise the ejectment, which is the in- 
 jury complained of, would precede the time at which the plaintiff's 
 title accrued, so that there could be no cause of action. 
 
 But though such be the proper form of declaring, yet this being a 
 fictitious action, it is not fatal if laid otherwise ; for in cases that have 
 
 {a) Esp. N. P. 444. Run. Eject. 214. 1 Bur. 199. (L) Esp. N. P. 444- 1 Sid. 7. 
 
 (0 Run. Eject. 215. Cowp. 714- 00 4 T. R. 681. (e) 3 Wils. 2~J. 
 
 (/) Bull. >!. p. 105, : , Esp. N. P 445-
 
 374 When Ejectment ties, and the [Chap. XIV. 
 
 occurred where the ejectment was laid prior in point of time to the 
 demise, yet the Court held it good (a). 
 
 Thus, in ejectment the plaintiff declared upon a lease, dated ist 
 February I 742, to hold from the 8th of January before, that afterwards 
 viz. 28th January 1752, the defendants ejected him. — It was insisted 
 for the defendants, that the ejectment was laid to be before the plain- 
 tiff's title under the lease, which was not made till ist February, and 
 1 Sid. 7. was cited ; but it was holden, that the day of the ejectment 
 being laid under a viz. was surplusage, and that " afterwards" should 
 relate to the time of making the lease, and then all would be wcli 
 enough, and the plaintiff had a verdict (b). 
 
 For the plaintiff need not mention in his declaration any particular 
 day of the ouster, provided it appears to be subsequent to the term com- 
 menced, and before the action be brought ; though in the precedents a 
 day certain is always laid (<:). 
 
 Tn the case of an ejectment to avoid a fine, however, an actual 
 entry is necessary: and the plaintiff cannot lay his demise, or recover 
 the mesne profits before such entry (<-/). 
 
 The declaration should also state, as has been before observed, both 
 the quantity and the nature of the land to be recovered. 
 
 In like manner, where the ejectment was for five closes of arable 
 
 and meadow, called containing twenty acres in D. upon not 
 
 guilty pleaded, and verdict for the plaintiff, judgment was arrested, be- 
 cause it was not shewn how much there was of one, and how much 
 of the other (<?). 
 
 But the plaintiff need not declare for the exact quantity which he 
 has a right to recover, for he may declare for any indeterminate quan- 
 tity, and the form now used is to viz. one thousand acres of pasture, 
 one thousand acres of arable, <3V. for he shall recover according to the 
 quantity to which he proves title. 
 
 Therefore where the plaintiff declared in ejectment of one hundred 
 acres of land, and shewed his lease in evidence only for forty acres; 
 and it was said that he had failed of his lease, for there was none such 
 as that of which he counted ; yet it was ruled to be good for so much 
 as was comprised in the lease, and that for the residue, the jury might 
 find the defendant not guilty (f ). 
 
 So, if the plaintiff proves a title to but a moiety of that for which 
 he declares, he shall only recover such half: as where he declared for 
 a house, and proof went to shew that only part of it was built on the 
 plaintiff's land by encroachment, he recovered so much as was built 
 on his land (g). 
 
 (a) Cro. Jac. 96. (i) Bull. N. P. ic6. (0 Cro. Jac. 311. 
 
 (<0 7 T- R- 727. (,) Salt 254. (/) Cro. Eliz. ra. 
 
 Cf) 1 Lev. 334.
 
 Sect. J. 2 Proceedings therein at Common Law. 375 
 
 But though part may be recovered on a demand for the whole, the 
 reverse will not hold; for if the plaintiff prove more than he has de- 
 clared for lie shall not recover it, for he can recover no more than he 
 goes for in his declaration [a). 
 
 But as to the plaintiff's title, he shall recover according to what it 
 really is, though he declare for a longer term than he has a right to 
 recover. 
 
 Therefore, where the lease declared upon was from the 25th of 
 March 1765 for seven years, the plaintiff proved that J S. was seised, 
 and that by indenture in 1763 he demised the premises in question to 
 D. for seven years, to commence at Midsummer 1763, and that in 
 1647 D. assigned the residue of the term then unexpired to Carruihers. 
 It was insisted for the defendant, that though in ejectment the iease is 
 fictitious, yet the plaintiff must declare on such a lease as suits with 
 the title of his lessor; here if he recover at all, he must recover a 
 term which is of two years longer duration than his title. Eut per 
 Lord Manyfteld there is nothing in the objection, for if the icF^or have a 
 title, though but for a week, he ought to recover: for the tvue question 
 in ejectment is, who hag the possessory right. — Suppose a -person has 
 an interest for three years only, and should make a lease for five years, 
 it would be good for the three years {I?). 
 
 A declaration in ejectment contained two demises by two different 
 lessors of two distinct undivided thirds ; judgment was given against 
 the plaintiff to recover his said terms. On error it appeared from '.lie 
 facts stated on a bill of exceptions to the judges, directions on a i 
 of law, that the ejectment respected only one undivided third : held 
 well enough on this record, where the point was only raised by bill 
 of exceptions. Semble that it would have been well even in a special 
 verdict (c). 
 
 Where the title is in several persons, who are severally concerned in 
 interest, it is usual to declare by several distinct counts, upon several 
 demises; therefore when a term is limited to trustees for securing the 
 payment of an annuity, or portions, &c. though the trustees seldom 
 act, yet it is usual to declare upon their demise, and also upon the 
 demise of the cestui que trust. By this means in such and similar cases, 
 the plaintiff is not confined to one demise, but may resort to any other 
 which he has stated, and under which he may be able to prove a title: 
 and where several demises are apparently inconsistent, the Court, to 
 assist the title of the lessor of the plaintiff, would perhaps permit him 
 to enter a non-pro;, as to all the demises but that which he can 
 legally sustain: and after verdict, if by any means the plaintiff can 
 
 (a) I Bur. 330. (6) Bedford (Lessee of Carruther,) v. Dendein, Sit. at Middlesex sfter 
 
 T. T. 5 G. 3. Bull. N. P. 106. (0 a Bos. & Pull. N. R. 2.
 
 376 When Ejectment lies, and the [Chap. XIV. 
 
 be supposed to have title, as stated in the declaration, the Court will 
 support it [a). 
 
 If the declaration states the demise to the plaintiff to be of more 
 lessors than one, it must appear that each lessor had a title to the 
 whole of the land or premises demised, or it will be bad •, for if 
 one of them has not an interest in the whole, he cannot be said to 
 demise it (/>). 
 
 Therefore, where the plaintiff declared in ejectment on a lease 
 made by A. and B. and on not guilty pleaded, the jury found a 
 special verdict, That A. was tenant for life of the lands in question, 
 and that B. had the remainder in fee, and that A. was living ; on this 
 finding, it was adjudged against the plaintiff; for it was not the lease 
 of A. and B. but the lease of A. during his life, and the confirma- 
 tion of B (c). 
 
 So, an ejectment cannot be maintained on a joint-lease by tenants 
 in common; for, as they are in by several titles, the freehold is 
 several, and consequently each cannot demise the whole. There should 
 therefore be a distinct count on the demise of each, or they may join 
 in a lease to a third person, and such person may make a lease to try 
 the title (d). 
 
 But joint-tenants may join in a lease to try the title: for being seised 
 per my et per tout, each has title to the whole, wherefore the demise of 
 each is good (e). 
 
 For the same reason, coparceners, it has been held, may join in a 
 lease to the plaintiff in ejectment, tamen quare de hoc (f) j for where 
 in ejectment the plaintiff declared of a lease, by two coparceners, 
 quod demiserwit, exception being taken to it, the exception was allowed, 
 because the lease was several as to each coparcener for her respective 
 moiety •, for though they have but one freehold with regard to their 
 ancestor, and therefore if they are disseised shall join in an assise, yet 
 as to their disposing power thereof they have several rights and in- 
 terests, so that neither of them can lease or give away the whole. — 
 The usual mode, however, is to join in a lease to a third person who 
 demises to the plaintiff; for a demise of all the parts is a demise of the 
 whole (g). f 
 
 In ejectment on the several demises of two persons, although the 
 evidence shews the title to be exclusively in one of them, the other 
 cannot be compelled to be examined as a witness for the defend- 
 ant (h). 
 
 In ejectment on the several demises of three persons, each demise 
 being of the whole, the lessors of the plaintiff are entitled to a verdict, 
 
 {a) Run. Eject. 211. 1 Wils. 1. 2 Srr. 908. 1x80. 5 T. R. ij. (v) Esp. N. P. 448- 
 
 (.) Ibid. 6 Co. 14. b. (</) Cro. Jac. 166. Co. Litt. 20C. a. 2 Wils. 233. (r) 2 Srr. 1181. 
 if) 1 Ld. Raym. 726. (g) Bac. on Lea. 194. (£) 3 Cainpb. 177. 
 
 6
 
 Sect. L] Proceedings therein at Common Law. 377 
 
 upon evidence that they jointly granted a lease to the defendant, which 
 has expired {a). 
 
 If four tenants in common jointly demise from year to year, such of 
 them as give notice to quit may recover their several moieties in eject- 
 ment, on their several demises (b). 
 
 The plaintiff in ejectment, under the several demises of two, may, 
 after notice to quit, recover the possession of premises held by the de- 
 fendant as tenant from year to year, upon evidence that the common 
 agent of the two had received the rent from the tenant, which was 
 stated in the receipts to be due to the two lessors; even assuming such 
 receipts to be evidence of a joint-tenancy •, for a several demise severs 
 a joint-tenancy : and supposing the contract with the tenant to have 
 been entire, no objection lies on that account to the plaintiff's recovery 
 in this case, as he had the whole title in him (c). 
 
 In ejectment brought upon the joint demise of several trustees of a 
 charity, it is not enough for the defendant, who had paid one entire 
 rent to the common clerk of the trustees, to shew that the trustees 
 were appointed at different times, as evidence that they were tenants 
 in common : for as against their tenant, his payment of the entire rent 
 to the common agent of all, is at all events sufficient to support the 
 joint demise, without making it necessary for them to shew their title 
 more precisely (d). 
 
 Where the lessor of the plaintiff claims by lease, under a copyholder, 
 he must shew that by the custom of the manor, [or by licence of 
 the lord, com. semb.'] the copyholder may let such leases for years ; 
 for if this be not set out in the declaration, and the count be general, 
 it shall be esteemed a lease at common law, which a copyholder cannot 
 make (e). 
 
 A lease by a copyholder for three years under a licence to let for 
 twenty- one years is good j and the lessee may bring ejectment on it at 
 the common law {/). 
 
 Indeed, a copyholder may declare on a lease for any number of years, 
 without forfeiture ; and the lessee of a copyholder, for a year, may 
 sustain an ejectment : for his estate is warranted by law, and it is the 
 most speedy way for him to recover the possession (g). 
 
 Of amending the Declaration. 
 
 It is a rule both in the Court of King's Bench and that of the Com- 
 mon Pleas, that no declaration in ejectment can be amended before 
 
 (a) 3 Campb. 190. {!>) 3 Taunt. R. 12c. (c) 12 East's R. 37. 
 
 (J) 12 East's R. 221. 0) Cro. Eliz, 469. (/) Ibid. 535. 
 
 (g) Run. Eject. 226.
 
 37S When Ejectment lies, and the [Chap. XI V. 
 
 appearance, and that after appearance it can only be amended in form, 
 not in matter of substance (a). 
 
 But amendments are now carried further than formerly, and that 
 which used to be deemed substance, (as the demise, Iffc.) is now held 
 matter of form, and amendable (b). 
 
 Thus where the ejectment was to avoid a line, and the demise was 
 laid before the plaintiff had made the entry, instead of after, it was, on 
 motion, ordered to be amended ; Lord Mansfield observing that demise 
 is mere matter of form ; it did not exist (Y). 
 
 So, if the term demised to the plaintiff is expired, or likely to ex- 
 pire, before trial, the Court will now upon motion to amend, enlarge 
 it upon payment of costs. So, the term was ordered to be enlarged, 
 after it had expired twelve years; though the cause was at issue, 
 and special jury struck, and the parties gone down to trial, before the 
 mistake was discovered. For an ejectment is the creature of the 
 Court, and open to every Equitable regulation for expediting the true 
 justice of the case (d). 
 
 But if the fault go to the title, or is in the process, it is not amend- 
 able (■'). 
 
 As where in the declaration delivered to the tenant in possession, 
 the said " James" instead of " John" was said to enter by virtue 
 of the demise, the Court refused to amend it, for they considered it 
 as process : and Justice IVright cited a case, where the premises 
 were laid to lie, " Twickenham or Isleivorth, or one of them," and 
 the Court refused to let the plaintiff amend, by striking out the disjunc- 
 tive words. 
 
 Yet in a latter case, an amendment has been made in the parcels and 
 in the name of the plaintiff for the defendant (/). 
 
 Of service of the Declaration, Affidavits thereof, 8$c. 
 
 The declaration being considered as process to bring in the tenant, 
 must therefore be personally served upon him, if it be known where 
 he lives, and his residence be not on the premises for which the eject- 
 ment is brought (g). For service on the person in possession will not 
 suffice, if it do not appear that he is tenant (h). 
 
 But where there are more tenants in possession than one, service 
 on the wife of one of them will not be good service upon all. 
 Thus, where upon cause being shewn against a rule to set aside pro- 
 ceedings, on the ground that J. G. had not been served with a declara- 
 tion, an affidavit was produced, shewing that a declaration had been 
 
 {a) 2 Sell Tract. 228. (*) Ibid. (0 4 Bur. 2447. 
 
 (,7) 2 Bl. R. 940. Cowp. 841. (0 2 Str. 1211. (/) 2 Sell. Pract. 218. 
 
 ■ {») 2 Str. 1064. {&) I Tidd's Pract. 442.
 
 Sect. I. j Proceedings therein at Common Law. 379 
 
 served on the premises on Elizabeth the wife of H. G., and it was con- 
 tended that such service was sufficient, though both J. and H. G. were 
 tenants in possession •, particularly as it appeared that j. G. was in the 
 house at the time : the Court said, that the service was certainly good 
 against H. but that it was defective against "J. as those steps had not 
 been taken which were necessary to supply a personal service on J. and 
 that the judgment, therefore, as far as it affected '/. must be set aside. 
 The counsel against the rule then said, the plaintiffs must continue in 
 possession of one moiety, and recover against H. G. quod fuit concession 
 by the Court ■ the counsel on the opposite side observing that the other 
 defendant J. must be restored to the possession cf the moiety taken 
 from him (a). 
 
 A motion was made, that service on A. might be deemed good ser- 
 vice of the declaration on the tenant under these circumstances. The 
 premises consisted of a mansion and four small houses in a yard, sur- 
 rounded by a wall, through which was a door to them, forming the 
 only means of access; in one of which small houses resided A. who 
 was permitted to live there merely to take care of them and of the 
 mansion house ; the rest of the messuages were vacant. The Court 
 refused the present motion, and recommended the plaintiff to affix a 
 declaration on the empty houses, and then to move that it be deemed 
 good service (£), 
 
 Service of a declaration in ejectment by nailing it on the barn door of 
 the premises, in which barn the tenant had occasionally slept, there be- 
 ing: no dwelling-house, and the tenant not being to be found at his last 
 place of abode, was allowed to be good service (c\ 
 
 If the tenant himself cannot be found, service on his wife or child, 
 or on his servant, on the premises, will be held good services. If, how- 
 ever, it be on the servant, some acknowledgment by the tenant or his 
 wife should be made to render it sufficient ; and that though it may not 
 clearly appear that the declaration came to hand before the essoign day 
 of the term (a').— But perhaps delivery to a servant at the tenant's 
 dwelling-house, and explaining the meaning of it, would be now strong 
 presumptive evidence for the jury to conclude that it reached the te- 
 nant (e). 
 
 Service of a copy of the declaration, isc. in ejectment, before the es- 
 soign day of the term, on the daughter of the tenant in possession, in 
 the absence of him and his wife, is not sufficient ; even though the te- 
 nant had since declared that he had received the same, if it did not ap- 
 pear that he had received it before the essoign day (f\ 
 
 The Court held service of the declaration in ejectment on the wife of 
 
 (a) Doe v. J. C. H. Gcdlin, East. T. 40. G. 3. K. B. T.'s MSS. 
 
 (/■) Accor. i Tidd's Pract. 443. (0 1 Bos. & Poll. N.R. 29;. 
 
 {</) 3 Bl. R. 8cc. Salk.sc.;. Run, Eject i;6. (<J 4T. R. 4O4. (/) 14 East's R. 44*-
 
 380 When Ejectment lies, and the [Chap. XIV. 
 
 the tenant in possession sufficient, provided it could be shewn, that the 
 wife lived with her husband (a). 
 
 If the tenant abscond, it is usual to serve the declaration on some per- 
 son residing at his house j and if that cannot be done, to affix the 
 same upon the door ; and then, on an affidavit of the circumstances, to 
 move the Court for a rule upon the tenant to shew cause why such ser- 
 vice should not be deemed good service, upon which the Court will 
 prescribe the mode of serving the rule, which is generally made abso- 
 lute upon affidavit of its service. 
 
 Thus, in such case, upon service on the tenant's niece, who was the 
 only manager of his house and resident in it, and fixing up another copy 
 on the premises, the Court made a rule to shew cause why judgment 
 should not be entered up against the casual ejector; and further or- 
 dered, that notice of such rule to any person in the house should be 
 sufficient, and that if no person were in the house, it should then be 
 affixed to the door of the house (/>). 
 
 So, where the tenant in possession was personated at the time of the 
 service by another who accepted the service in her name, the Court 
 made a rule to shew cause, why this should not be deemed good ser- 
 vice upon the tenant herself, and why judgment should not be signed 
 against the casual ejector, on default of her appearing : and that leav- 
 ing a copy of this rule at her house with some person there, or, if no 
 one was to be met with, affixing it on the door, should be good service 
 of it. This rule was made absolute upon an affidavit " that the tenant 
 was either not at home, or, if at home, was denied*, and that her ser- 
 vant maid was at home, but could not be served ; whereupon a copy of 
 the rule was affixed on the door of the house:" and moreover " that at 
 a subsequent day," upon a doubt whether what had been already done 
 was sufficient, " the maid being at home and opening the window, but 
 refusing to open the door, and denying that her mistress was at home, 
 another copy was affixed to the door, and tire maid was told the effect 
 of it; and another copy was thrown in at the window, and the original 
 rule was shewn to the maid (f)." 
 
 Such rules will be granted with a retrospect: for a like rule to shew 
 cause why a preceding service of an ejectment upon a servant in the house 
 of one Hawkins, tenant in possession, should not be deemed good ser- 
 vice of it, was made en the^ second day of the term, on its appearing 
 that Hawkins and his wife both kept out of the way to prevent their 
 being personally served. The rule was made with a retrospect, in or- 
 der that the plaintiff might not lose the assizes (rf). 
 
 So, in another case, a rule was granted and afterwards made abso- 
 lute, that service of a declaration in ejectment at the house of a tenant 
 
 (a) i Bos. & Pull. N.R. 3 c8. (4) Bar. 19a. a Bur. 1116. (r) Ibid. 118a. 
 
 (J) Ibid, in Marg. 1 Bl. R. 290. s. c.
 
 Sect. I.] Proceedings therein at Common Lata. 331 
 
 in possession, on a day past, might be good service-, and that service of 
 the first rule at the house of the said tenant, should be good service (a). 
 But where cause being shewn against a rule for good service of the 
 declaration in ejectment, it appeared that the declaration was tendered 
 on the 1 8th, but that the defendant's servant said that he had orders not 
 to receive any such thing, whereupon it was not served on that day, but 
 was left at the house on the day following ; notwithstanding that the 
 defendant knew of the intention to serve him, the Court said, " You 
 should have left the declaration on the 1 8th. We sometimes by rule 
 make that service, under particular circumstances, good, which other- 
 wise would have been imperfect ; but here there was no service on 
 the proper day; and we cannot antedate the service." Rule dis- 
 charged (£). 
 
 Leaving the ejectment at the house, was ruled to be sufficient service, it 
 appearing that the servant had refused to receive it, having been or- 
 dered by his master not to take in any papers (c) — But where it ap- 
 peared that service was made upon the defendant's son, who accepted it, 
 and said that he knew what it was for, and would deliver it over to his 
 father ; and both father and son were attornies ; the Court notwith- 
 standing held the service insufficient and s^iid, it had been often ruled 
 so(d). 
 
 But tender of the declaration, and reading the notice aloud, though 
 the tenant refused to receive it ; or runs away and shuts the door ; or 
 threatens with a gun to shoot the person serving it if he came near, 
 have been held good service upon application to the Court, who act dis- 
 cretionally in this matter, according to the exigency of the case (e ). 
 
 A declaration served on the churchwardens and overseers of a parish, 
 who rented a house for harbouring some of the parish poor, and did 
 not otherwise occupy the house than by placing the poor in it, was 
 deemed sufficient service, and a rule made for judgment (J"). 
 
 So, in ejectment for a chapel, if service of the declaration be made 
 on the chapel wardens, or on the person entrusted with the keys of the 
 chapel, it will be sufficient. 
 
 On affidavit that one of the tenants is a lunatic, and that one C. 
 lives with her, transacts her business, and has the sole conduct thereof, 
 and of her person, but would not permit the deponent to have access 
 to her, in order to serve her with the declaration : whereupon he deli- 
 vered it to the said C. a rule was made for the lunatic and C. both to 
 shew cause, why such service should not be good ; and service of the 
 rule on the said C. be good (g). 
 
 If there be several tenants in possession, the plaintiff, it has been 
 
 (a) i BLR. 317. (b) T.'sMSS.H. T. 41 G.3. (c) 1 Str. 575. 
 
 00 TVs MSS. T.T. 41 G. 3. 00 Sell. Pract. 173. (/) Ibid. 174. Barnes, 181. 
 
 (c T ) Sell. Pract. 174. Bar. 190.
 
 382 When Ejectment lies, and the [Chap. XIV. 
 
 said, must deliver a declaration to each of them : but where the name 
 of each was prefixed to the notice served on him, it was held that one 
 rule only was necessary on modon for judgment against the casual ejec- 
 tor {a). However, in a latter case, it seems that service of one of two 
 tenants in 'possession has been good service on both b\ 
 
 Affidavit of Service. — The declaration having been delivered, the per- 
 son who delivered it must make affidavit v except in the case of vacant 
 possession) that he delivered to the tenant or his wife, cifV. a true copy 
 of the declaration, and read or explained to him the notice annexed 
 thereto. If a declaration was served on the child or servant of the te- 
 nant, the affidavit must state further, " that the service was afterwards 
 acknowledged by the tenant." — The affidavit must be positive, namely, 
 that A, B. was tenant in possession, or that he acknowledged himself 
 to be so- because no one should be evicted from possession without a 
 positive affidavit, on which, if it be false, the person who made it may 
 be legally and effectually subjected to the penalties of perjury (r). 
 
 Affidavit of sen ice on J.B. tenant in possession, or C. his wife, is 
 not sufficiently certain as to either yd). 
 
 So, service on the wives of A. and B. who, or one of them are te- 
 nants, was held not good (e). 
 
 The reason why it is necessary to state in the affidavit that the ser« 
 vice was on the wife at the husband's house, is to shew that they were 
 living together as man and wife ; and that by such service, the husband 
 may have notice of the proceedings: but the declaration maybe served 
 on the wife either on the premises or at the husband's house (f). 
 
 When several tenants have been served with copies of the declara- 
 tion, if it is meant but as one ejectment and to be followed by one 
 judgment, one affidavit of the service of all is sufficient, annexed to 
 the copy of one declaration. But if the ejectments are made several, so 
 as to have separate judgments, writs of possession, Cr. then an affida- 
 vit must be annexed to separate copies of the ejectment of the service 
 Separately (g). 
 
 Moving for Judgment. — Upon the affidavit of service (which affida- 
 vit may be made by the party who served the declaration, or by any one 
 who was present and saw it served); the plaintiff moves, for judgment 
 against the casual ejector, which is always granted, unless the tenant in 
 due time, enter into the common rule to confess lease, entry, and 
 ouster (hi). This motion for judgment is a side bar, but where there is 
 any thing in the service of the declaration out of the common way, 
 it should be mentioned to the Court, and where the affidavit of service 
 
 (a) Bull. N. P. 98. lb) 1 Bos. & Full. 369. (.) 7 T. R. 477. 1 Lil. Pr. Reg. 499. 
 Run. Eject. 158. (d) Ear. 173. (,) Ibid. 174. (/) 1 Tidd's Przct. 44.]. 
 
 (g) 2 St!.:. Pract. 178. (i) Bos. Zc Pull. I2C.
 
 Sect. I.] Proceedings tlierein at Common Law. S3 3 
 
 h defective, the Court of King's Bench will give leave to file a supple- 
 mental affidavit (a). 
 
 Although judgment against the casual ejector be signed yet if no 
 possession is given, or trial lost, it may, on an affidavit cf merits and 
 payment of costs, be set aside (£). 
 
 In the King's Bench, if the premises are situate in London or Mid- 
 dlesex, and the notice requires the tenant to appear on the first day, or 
 within the first four days of the next term, the plaintiff should regu- 
 larly move for judgment against the casual ejector in the beginning of 
 that term : and then the tenant must appear within four days inclusive 
 after the morion, or the plaintiff will be entitled to judgment. If how- 
 ever the motion be deferred till the latter end of the term, the Court 
 will order the tenant to appear in two or three days, and sometimes im- 
 mediately, that the plaintiff may proceed to trial at the sittings after 
 term ; though if the motion be not made before the last four days of the 
 term, the tenant need not appear until two days before the essoign day 
 of the subsequent term : and should the notice in such case require the 
 tenant to appear in the next term generally, the tenant has the whole of 
 that term to appear in {c). 
 
 In the Common Pleas, if the premises are situate in London or Mid- 
 dlesex, and the tenant has notice to appear in the beginning of the term, 
 the plaintiff cannot take any thing by his motion for judgment against 
 the casual ejector for default of appearance, unless such motion be 
 made within one week next » after the first day of every Michaelmas 
 and Easter terms, and within four days next after the first day of every 
 Hilary and Trinity terms. — But it has been holden that this rule does not 
 extend to the case of a vacant possession, under the stat. 4 G. 2 (d). 
 
 In country causes, though the declaration be delivered before the es- 
 soign day of Easter or Michaelmas term, yet the tenant, in both Courts, 
 is allowed till four days after the next issuable (that is, Hilary or Trinity) 
 term to appear j and if the cause arise in Cumberland, or any other 
 county where the assizes are held but once a year, the tenant need not 
 appear till four days after the term preceding the assizes. — But in the 
 King's Bench the plaintiff must move for judgment the same term in 
 which the tenant has notice to appear: though the practice is different 
 in the Common Pleas, for there he may move for judgment at any time 
 during the next issuable term (e). 
 
 By a late rule of the Court of King's Bench, the clerk of the rules 
 is to keep a book, in which is to oe entered all the rules winch shall be 
 delivered out in ejectments, instead of that formerly kept which con- 
 tained a list of the ejectments moved. The entry is to specify the num- 
 
 (<■) 3 Tidd's Pract. 444. (i) Sell. Pract. 178. (c) Run. Eject. 165. 
 
 [J) Ibid. -<<■) Ibid. x66.
 
 384 Who may defend [Chap. XIV. 
 
 ber of the entry; the county in which the premises lie; the name of 
 the nominal plaintiff; the first lessor of the plaintiff, (with the words 
 " and others," if more than one), and also the name of the casual 
 ejector: and unless the rule for judgment be drawn up and taken away 
 from the office of such clerk within two days after the end of the term 
 in which the ejectment shall be moved, no rule is to be drawn up or 
 entered, nor any proceedings had in such ejectment. 
 
 By stat. II G. 2. c. 19. the tenant must give notice to his landlord of 
 any declaration in ejectment being delivered, under pain of forfeiting 
 three years improved or rack-rent of the premises so had and enjoyed 
 by the tenant. 
 
 A tenant to a mortgagor who does not give him notice of an eject- 
 ment brought by the mortgagee, to enforce an attornment, is not liable 
 to the penalties of this statute : for the Act expressly permits an eject- 
 ment to be brought for such purpose ; and extends only to cases where 
 ejectments are brought which are inconsistent with the landlord's 
 title (a). 
 
 But where the tenant had not given notice to his landlord of the eject- 
 ment, and there was judgment against the casual ejector, the Court set 
 aside the judgment and ordered the tenant to pay all the costs to the 
 lessor of the plaintiff on the landlord's entering into the usual rule to 
 try the title [b). Or the landlord may bring a writ of error, which 
 operates as a supersedeas of the proceedings under the statute, and there- 
 by stay execution (r). 
 
 Section IL J Tim may defend the Action of Ejectment, fyc. 
 
 The Tenant. — The tenant in possession must apply to the Court to be 
 made defendant in the room of the casual ejector. This is done on con- 
 dition that he confesses lease, entry, and ouster. 
 
 By the common law, no person is permitted to defend in ejectment, 
 unless he be tenant, and is or hath been in possession, or receipt of the 
 rent : for, besides that it was champerty for any person to interpose and 
 cover the possession with his title if the party would make any person 
 defendant with another, who was not concerned in the possession of the 
 tenements, it was a mischief at the common law, because if the plain- 
 tiff recover against one of the defendants, the stranger had no remedy 
 for his costs ; but this is remedied by 8 fcf 9 IV. 3. c. 10. whereby costs 
 are given to such strangers, unless the Judge certifies, immediately on 
 the trial, that the party had probable cause for making him defendant. 
 
 Moreover, as the tenant in possession could not be compelled to ap- 
 pear and enter into the common rule to become defendant instead of the 
 
 {a) 1T.R.467. (£) 4 Bur. 1996. (c) 2Str.U4i.
 
 Sect. If.] the Action of Ejectment; cjc. 38j 
 
 casual ejector: so neither could the landlord alone, without joining with 
 the tenant, enter into such rule, and be made sole defendant. 
 
 The Landlord.— To remedy this inconvenience, by stat. 1 1 G. 2. c. 19. 
 s. 13. it is enacted, That it may be lawful for the Court, where such 
 ejectment shall be brought, to suffer the landlord to make himself de- 
 fendant, by joining with the tenant, in case he should appear ; but in 
 case such tenant shall neglect or refuse to appear, judgment shall be 
 signed against the casual ejector, for want of such appearance : but if 
 the landlord, tsfc. of any part of the lands, £sY. for which such eject- 
 ment was brought, shall desire to appear by himself, and consent to 
 enter into the like rule, that by the course of the Court, the tenant in 
 possession in case he or she had appeared, ought to have done ; then the 
 Court, where such ejectment shall be brought, shall and may permit 
 such landlord so to do ; and order a stay of execution upon such 
 judgment against the casual ejector, until they shall make further order 
 therein. 
 
 The landlord's right to be joined in defending the premises is affirmed 
 by this statute, for he had such right before : and it is optional in him 
 to be made defendant or not, for the Court cannot compel him (a). 
 
 The Court, however, has no jurisdiction, it seems, to admit any 
 person to defend instead of the tenant, but the landlord. In the con- 
 struction, however, of the statute, the word " landlord" is extended 
 to all claiming title consistent with the possession of the occupier, for 
 it need not be the actual landlord, but it is sufficient if he have an 
 interest only in the land. A purchaser, therefore, of a reversion, 
 which appeared to be a pretended title, and where no rent had ever 
 been paid, was held to be admissible as a defendant. So, it should 
 seem, a mortgagee out of possession may now be admitted to defend, 
 on the tenant's refusal. But a devisee ( cestui que trust) out of posses- 
 sion is not deemed a landlord within the meaning of the act : for upon 
 a motion to permit certain devisees to defend instead of the tenant, it 
 was opposed on the ground that the devisees had never been in posses- 
 sion, and could not, therefore, be considered as landlords under 11 G. 
 2. c. 19. s. 13. and Lord Kenyon said, If the person requiring to be 
 made defendant under the act, had stood in the situation of immediate 
 heir to the person last seised, or had been in the relation of remainder- 
 man under the same title as the original landlord, I am of opinion that 
 he might have been permitted to defend as a landlord by virtue of the 
 directions of the statute ; but here, the very question in dispute, be- 
 tween the adverse party and himself, is, Whether he is entitled to be 
 landlord or not: we, therefore, are not authorized to extend the provi- 
 sion of the statute to such a case as this (b). As to the case mentioned, 
 it appears to have been by consent. — A devisee in trust, however, may 
 
 («) Salk. 257. (*)3T.R.7f3. 
 
 Cc
 
 386 Who may defend [Chap. XIV. 
 
 defend as landlord. So, an heir who had never been in possession. So, 
 the heir at law or remainder-man under the same title (a). 
 
 So, if an ejectment be brought by one claiming as heir of a copy- 
 hold, and the lord of a manor, who claims by escheat pro drfectu kosre- 
 dts, applies to i. admitted defendant cither with the tenant or alone, 
 the Court will direct the lord to bring this action against the heir, and 
 the heir will be admitted to defend. If the lord refuses, they will dis- 
 charge his rule to be admitted ; if the heir refuses, they will admit the 
 lord to defend [b). 
 
 On the landlord being made a defendant under 1 1 G, 2. c. 19. on 
 non-appearance of the tenant, the Court will stay execution against the 
 casual ejector. 
 
 But where the landlord is permitted to defend without the tenant, 
 judgment is always first signed against the casual ejector; the reason of 
 which is that, under it, the plaintiff if he obtain a verdict, may get 
 possession of the premises sued for, which he could not do by virtue of 
 a judgment against a person out of possession fc). 
 
 As to the time when the landlord may be admitted defendant, a rase 
 occurred, in which judgment had been regularly obtained against the 
 casual ejector by default: — the landlord of the premises moved to set 
 it aside, because his tenant had not given him any notice of his having 
 been served with the declaration in ejectment. The plaintiff insisted 
 that his judgment was perfectly regular; and that the tenant's omitting 
 to give his landlord notice of the declaration being delivered was 
 merely a matter between the landlord and his tenant, which could not 
 affect the plaintiff's regular judgment, which had been fairly and duly 
 obtained. The Court, however, were clearly of opinion that the 
 possession ought not to be changed by a judgment in ejectment where 
 there had been no trial or opportunity of trying ; for the obtaining 
 judgment might be owing to the default, or even treachery of the de- 
 fendant's own tenant. But if the plaintiff had not been guilty of any 
 collusion with the tenant, they thought it reasonable that the tenant, 
 who was the person guilty of the default, should pay the costs : for the 
 rule of the Court, which requires service upon the tenant in possession, 
 is calculated with a view that the tenant should give notice to his land- 
 lord, in order that the ejectment cause might be tried between the 
 proper parties interested in the question (d). 
 
 If judgment be signed, it is too late for the landlord to be made 
 defendant. But the landlord may be let in after judgment when signed 
 in consequence of the tenant's not giving notice (e). 
 
 But in no event will the Court endure that a lessee defend alone 
 
 (.?} 3 Bur. 1290. 4T. R, 122. (/;) 3 Bur. 1290. (<-) 2 Sell. Pract. 186. 
 
 (.-/; 4 Bur. 1996. (.■) 2 yell. Pract. 187.
 
 Sect. II.] the Action of Ejectment ; $c. 387 
 
 against his landlord, or those, who claim under him, on a supposed de- 
 fect of title (a). 
 
 A third Person. — In all cases, if the person who wishes to defend 
 be neither tenant nor actual landlord, but has some interest to sustain, 
 he must move the Court, on an affidavit of the fact, to be made a 
 defendant, instead of, or with, the casual ejector; and the tenant's 
 consent is not now necessary (b). 
 
 If a material witness for the defendant be also made a defendant, 
 the right way is for him to let judgment go by default ; but if he 
 plead and by that means admit himself to be tenant in possession, the 
 Court will not afterwards upon motion strike out his name. In such 
 cases, however, if he consent to let a verdict be given against him for 
 as much as he is proved to be in possession of, no reason appears why 
 he should not be a witness for another defendant (c). 
 
 Consolidation Rule. — Where there are several defendants, to whom 
 the plaintiff delivers declarations, who are severally concerned in in- 
 terest, and the plaintiff moves to join them all in one declaration, yet 
 the Court will not do it, but the plaintiff must deliver several declara- 
 tions to each of them; because each defendant must have a remedy for 
 his costs, which he could not have if they were joined in one declara- 
 tion, and the plaintiff prevailed only against one of them : and by this 
 means the plaintiff might have a tenant of his own defendant with 
 others, in order to save the costs (d). 
 
 But where several ejectments are brought for the same premises, 
 upon the same demise, the Court on motion, or a Judge at his cham- 
 bers, will order them to be consolidated: the motion is for rule to shew 
 cause (e). 
 
 appearance. — The appearance, therefore, may be either by the tenant 
 himself (as when he is in possession of his own estate, or agrees 
 with his landlord to defend the action, or it is an ejectment by the 
 landlord against his tenant or the like), or it may be by the tenant and 
 the landlord jointly, or if the tenant refuses, it may be by the landlord 
 alone. 
 
 The appearance in all the above cases is effected in the same manner, 
 except only that in the two last, counsel's signature must be got to a 
 motion, which is of course to admit the landlord to defend, either 
 with the tenant, or by himself if he refuses to appear, and a rule got 
 from the clerk of the rules accordingly (f). Also, if the tenant refuse 
 to appear, an affidavit of such refusal should be made ; for the tenant 
 is not obliged to appear in ejectment though the landlord is ready to 
 indemnify him. Nor can an attorney, by order of the landlord, appear 
 
 (a) % Bl. R. 1359. W ,bid - l8 J- W El,1L N - p - 9 8 - (<0 Ru »- F J e «- 187. 
 (0 Ibid, (/) 2 Sell. Pratt, 179. 
 
 Cc 2
 
 38S Who may defend [Chap. XIV 
 
 for the tenant: such appearance and plea would be irregular, and 
 ordered to be withdrawn [a). 
 
 The appearance in this action should be entered of the term men- 
 tioned in the notice ; and where the notice to appear was in Hilary, 
 and the tenant entered an appearance in Michaelmas following, and 
 did nothing farther, and the plaintiff, finding no appearance of Hilary, 
 and no common rule entered into or pleaded, signed judgment against 
 the casual ejector, the Court held it regular; but afterwards set it aside 
 to try the merits {b). 
 
 Touching the common or consent rule, it should be remembered that 
 judgment against the casual ejector is always granted, unless the tenant 
 in due time (that is, within the time allowed for his appearance) 
 enters into the common rule to confess lease, entry, and ouster. But 
 if the tenant or his landlord wishes to defend the action, he must, 
 within that time, constitute an attorney, who will make out the 
 common rule, and leave it, with the general issue, at a Judge's 
 chambers in the King's Bench, or at the Prothonotary's office in the 
 Common Pleas. This rule is in substance nearly the same in both 
 Courts •, and the purport of it is, that the tenant or other defendant 
 shall immediately appear, receive a declaration, plead not guilty in a 
 plea of trespass and ejectment for the tenements in question ; and that 
 upon trial of the issue, he shall confess lease, entry, and ouster, and 
 insist upon the title only : the effect of the rule being to bring the 
 matter to the mere question of the plaintiff's possessory title (r).. 
 
 In all cases, except that of ejectment brought to avoid a fine, 
 (where there must be an actual entry,) the confession of lease, entry, 
 and ouster, is sufficient to bar a nonsuit for want of proof of actual 
 ouster. It is sufficient therefore in an ejectment brought for a condi- 
 tion broken ; or by one tenant in common against another. 
 
 The common rule, being made by assent of both parties, an attach- 
 ment lies for the non-performance of it, as of all other rules of Court 
 that are disobeyed ; and this is all the remedy which the parties on both 
 sides have for their costs (d). 
 
 If there be several persons who claim title, the rule may be drawn 
 either generally or specially : generally;, as that A. who claims title 
 to the premises in question in his possession, be admitted defendant 
 for those premises ; which puts a necessity upon the plaintiff to dis- 
 • tinguish, by proof at the trial, what tenements are in each defendant's 
 possession ; because by the rule, he is only to confess for the premises 
 in his own possession ; and if the plaintiff cannot distinguish, by 
 proof what tenements are in each defendant's possession, he can have 
 
 {/) % Sell. Pract. 187. (i>) Ibid. (c) Run. Eject. 190. (</) Ibid. 202.
 
 Sect. II.] the Action of Ejectment ; 8$c. 389 
 
 no verdict, consequently no judgment. Or the rule may be drawn 
 specially at the discretion of the defendant: as that A. who claims title 
 to such and such premises, (expressing them particularly,) be admitted 
 defendant ; which supersedes the necessity of proof that the premises 
 are in his possession. — If the tenant enters into the common rule for so 
 much of the premises as are in his possession, his attorney must, by 
 rule of Court, immediately deliver to the plaintiff's attorney a note in 
 writing thereof, and if the defendant's attorney will not give a note of 
 the particulars of the land for which he was admitted defendant, the 
 plaintiff may summon him before a Judge, who will order the rule thus 
 specially to be drawn up, in case the party in possession will himself 
 be defendant : but because the defendant's attorney is to draw up the 
 rule, it being entered into by his consent, it is often drawn up in ge- 
 neral terms, which puts the plaintiff to proof at the trial (a). 
 
 The lessor of the plaintiff is bound at the trial to prove the defendant. 
 in possession of the premises which he seeks to recover, notwith- 
 standing that the defendant has entered into the general consent rule 
 to confess lease, entry, and ouster, if the defendant contest his pos- 
 session (b). 
 
 But now the practice is to insert in the margin of the consent rule, 
 the premises to be defended, stating that they are part of the pi-emises 
 mentioned in the declaration, which makes the rule special, and thereby 
 supersedes the necessity, as we have before observed, of the plaintiff 
 proving in whose possession the premises are (V). 
 
 When the appearance is for part, the plaintiff may sign his judgment 
 against the casual ejector. 
 
 That the lessor of the plaintiff, however, may the better know what 
 exact part of the premises are defended, the defendant's attorney should 
 give notice to the plaintiff's attorney what the premises are. 
 
 Proceedings when stayed. — In certain cases, the Court will stay the pro- 
 ceedings in ejectment, on a moticn for a rule to shew cause. 
 
 Thus, where the lessor of the plaintiff is unknown to the defendant, 
 the latter may call for an account of his residence or place of abode, 
 from the opposite attorney ; and if he refuse to give it, or give in a fic- 
 titious account, of a person who cannot be found, the Court will stay 
 the proceedings until security be given for the payment of costs (d). 
 
 Also an ejectment on a clause of re-entry for non-payment of rent, 
 under the stat. 4 G. 2 c. 28. (of which hereafter), proceedings will be 
 stayed at any time after judgment and before execution executed, on 
 the tenant bringing into Court all the rent in arrcar and costs (e). 
 
 But the Court will not stay proceedings if a writ of possession has 
 
 0) Run. Eject. 203. (!) 7 T. R. 327. (c) 3 Sell. Pract. iSr. 
 
 (J) 1 Tidd's Pract. 476, 7. (0 Ibid. 487.
 
 390 J l T ho may defend [Chap. XIV. 
 
 been executed. The application in such case is too late, no action 
 pending ; it cannot be granted without consent (a). 
 
 In ejectment by a mortgagee, for the recovery of the possession of 
 tlie mortgaged premises, or in debt on bond conditioned for the pay- 
 ment of the mortgage-money, or performance of covenants in the 
 mortgage where no suit in equity is depending for a foreclosure or re- 
 demption, by stat. 7 G. 2. c. 20. if the person having a right to redeem 
 shall at any time, pending the action, pay to the mortgagee, or in case 
 of his refusal bring into Court all the principal monies and interests 
 due on the mortgage, and also costs to be computed by the Court, or 
 proper officer appointed for that purpose, the same shall be deemed and 
 taken to be in full satisfaction and discharge of the mortgage ; and the 
 Court shall discharge the mortgagor of and from the same accord- 
 ingly (b). 
 
 Upon this statute the Court stayed proceedings, although it was ob- 
 jected that the defendant had agreed to convey the equity of redemp- 
 tion to the plaintiff; and if there be any doubt as to the amount of 
 what is clue, the Court of King's Bench will refer it to the Master, and 
 that of Common Pleas to the Prothonotary, whose respective duty it is 
 to tax the costs ; and if the debt and costs are not paid, the plaintiff 
 must proceed in the action, and cannot have an attachment (c). 
 
 The Court however would not stay proceedings in an ejectment 
 brought by a mortgagee against a mortgagor, on the latter paying prin- 
 cipal, interest, and costs, where the latter had agreed to convev the 
 equity of redemption to the mortgagee (d). 
 
 A motion was to stay proceedings in ejectment on payment of mort- 
 gage money and costs, pursuant to this act •, on shewing cause, the 
 plaintiff produced an affidavit that the mortgagee had been at great ex- 
 pence in necessary repairs of part of the premises in his possession, 
 (the ejectment was brought for the residue,) and therefore prayed that 
 the Prothonotary might be directed to make allowance for such repairs. 
 Per Cur. — The rule must follow the words of the statute ; the protho- 
 notary will make just allowances and deductions (V). 
 
 But where there were two mortgages, the Court will not stay pro- 
 ceedings and compel a redemption of one mortgage only, upon pay- 
 ment of the principal, interest, and costs, on that mortgage, without 
 paying the rest (/). 
 
 A judge made an order pursuant to this Act, to stay the mortgagee's 
 proceeding in ejectment, upon bringing principal, interest, and costs 
 into Court ; and a rule was made to make the order a rule of Court 
 tihi • but it afterwards appearing to the Court, that notice had been 
 
 (.., T.T.41 G.3. T.'sMSS. (4)Tidd'sPract.487- (0 Ibid. . 
 
 [J) 1 T. R. 285. (,> j Sell. Tract. S1 o, (/) J Bl. R. 716.
 
 Sect. II. ] the Action of Ejectment ; §c. 3$ 1 
 
 given by the mortgagee to the mortgagor that he insisted upon payment 
 of two bonds, which were a lien upon the estate, the case was adjudged 
 to be out of this act, and the rule nisi was discharged (a). 
 
 But where a rule, on the statute, to shew cause why proceedings 
 should not be stayed on payment of the mortgage-money and costs, 
 was made absolute ; upon the lessors of the plaintiff, who were as- 
 signees of the mortgagee, insisting to be paid a bond and a simp' >. con- 
 tract debt due to themselves in their own right : per Cur. — A bond is 
 no lien in equity, unless where the heir comes to redeem. 
 
 The practice now is, to stay proceedings by summons before ^ 
 Judge (b). 
 
 Proceedings also will be stayed, in the case of an infant lessor of the 
 plaintiff; that of the death of plaintiff's lessor, perhaps; that of the 
 defendant residing abroad ; and where a former ejectment has been 
 brought (c). 
 
 By the practice of making a rule to stay proceedings in this action, on 
 the demise of an infant, until a responsible plaintiff be named, or se- 
 curity be given for the payment of costs, if an infant deliver a declara- 
 tion to a defendant, some friend or guardian may set up as plaintiff, to 
 be responsible to the defendant for his costs. But if such person die 
 insolvent, so that the defendant cannot derive any benefit from the rule, 
 the infant himself must answer for the costs : the rule was made for 
 his benefit ; and an infant must not disturb the possession of others by 
 unlawful entries, without being liable to costs. — Previous however to 
 any motion in Court, enquiry should be made, whether there be a real 
 and substantial plaintiff, or not : for on enquiry, the guardian may un- 
 dertake to pay the costs : and in case he should, the Court would pro- 
 bably decline to interpose (d). 
 
 It has likewise been holden, that upon the death of the plaintiff's 
 lessor, the proceedings may be stayed, till the plaintiff shall have given 
 the defendant security for his costs (e). 
 
 So where an ejectment was brought on the demise of a person resid- 
 ing at Antigua ,■ and in another case, where the lessor of the plaintiff 
 resided in Ireland, the plaintiff was compelled to give the defendant a 
 similar security : in the latter case he was compelled to do it, although 
 it was an ejectment brought under the direction of the Court of Chan- 
 cery, where the bill was retained till after the trial of the ejectment and 
 security had already been given there ; which security however was only 
 for 40/. (/) 
 
 Proceedings were stayed till the costs of a former ejectment brought 
 by the father of the lessor of the plaintiff against the defendant's father 
 on the same title, were paid (g). 
 
 v. n. (.-) I Tidd's Pract. 47". 
 
 (/j 2 Bur. 1177. (g) 2 T, R. 64/- 
 
 GO 1 Sell. Prac 
 
 t. 220, 
 
 •L) 1 St: 
 
 '• 4 
 
 U) Run. Eject. 
 
 i83. 
 
 r f) z Str, 1 : 
 
 '5-
 
 392 Of the Plea and Issue in [Chap. XIV. 
 
 But, excepting such instances, and that of a former ejectment, the 
 Court will not compel the lessor of the plaintiff to give security for the 
 costs. 
 
 Therefore, a rule was refused, for the lessor of the plaintiff to give 
 security for the costs of an ejectment depending. Buller J. said — The 
 application is not warranted by any authority. There are only three in- 
 stances in which the Court will interfere on behalf of a defendant, to 
 oblige the plaintiff to give security for his costs. The first is when an 
 infant sues ; then the Court will oblige the prochein amy, or guardian, 
 qr attorney, to give security for the costs : secondly, where the plaintiff 
 resides abroad, in which case the Court will stay proceedings till secu- 
 rity be given for the costs: and thirdly, where there has been a former 
 ejectment ; but there the rule is to stay the proceedings in the second 
 eiectment till the costs of the former are paid, and not till security be 
 given for the costs of the second (a). 
 
 Though a Court may stay proceedings in a new ejectment until the 
 costs of a former ejectment between the same parties, and also the costs 
 of an action for mesne profits dependant thereon, are paid ; yet they 
 will not extend the rule to include the damages in the action for the 
 mesne profits, however vexatious the proceedings of the present lessors 
 of the plaintiff may have been (b). 
 
 Particular of the Breaches. — In ejectment brought on the forfeiture of 
 a lease, the Court will compel the plaintiff to deliver a particular of the 
 breaches of covenant on which he intends to rely. 
 
 So, if the plaintiff declare generally, and the defendant have any 
 doubt what lands the plaintiff means to proceed for, he may call upon 
 Lim by a judge's order to specify them (r). 
 
 On the other hand, the plaintiff may call upon the defendant to spe- 
 cify for what he defends, when that is not ascertained by the consent 
 ru le. — But, in general, the injury complained in actions for wrongs is 
 stated in the declaration ; and therefore in such actions, it is not usual 
 to make an order for the particulars : circumstances may, however, 
 occur, which render it necessary {d) m 
 
 Of the Plea and Issue, c$c. 
 
 The general rule in the issue of this action is, that whatever bars the 
 right of entry is a bar to the plaintiff's title. The plaintiff must, there- 
 fore, prove seisin within twenty years in himself or his ancestors ; or 
 must prove seisin in a third person, of a particular estate in the land, 
 and that he claimed within twenty years after the reversion accrued ; or 
 that he or she was an infant, feme covert, non compos, imprisoned, 01 
 
 («)iT.;i,,jji, t.) 15 luct'* R. «33. U) iTidJ'i Fxjct.rsj. 
 
 [d) Ibid.
 
 Sect. II.] the Action of Ejectment ; 8$c. sgs 
 
 beyond the sea, at the time when the title accrued, and that he claimed 
 within twenty years after he came of age, &c. or otherwise became a 
 free agent by such disability ceasing : for every plaintiff in ejectment 
 must shew a right of possession as well as of property ; and therefore 
 the defendant need not plead the statute of limitations, as in other ac- 
 tions (a). 
 
 A fine and non-claim, or a discent cast, which takes away the entry, 
 are good pleas in this action, in bar of the plaintiff's right of entry (£). 
 
 So, an accord with satisfaction is a good plea, for it is an action of 
 trespass in its nature (c). 
 
 So, by permission of the Court, the defendant may plead to its ju- 
 risdiction : which permission the Court will grant before judgment nisi 
 against the casual ejector (d). 
 
 Antient demesne, therefore, may be pleaded : but application to 
 plead it must be made within the first four days ; and there must be an 
 affidavit, stating that the lands are holden of a manor, which is antient 
 demesne ; that there is a Court of Antient Demesne regularly holden ; 
 and that the lessor of the plaintiff has a freehold interest (/). 
 
 The opinion of the Court, touching this plea, was pretty clearly ma- 
 nifested in a motion for leave to plead, it being denied by reason of 
 sufficient ground not being shewn to support it : on which occasion 
 Mr. J. Foster observed, that as it was agreed to be necessary to ask the 
 leave of the Court to plead this plea to a declaration in ejectment, it 
 followed of course that it must be in the discretion of the Court either 
 to grant or refuse their leave ; and he thought that the affidavit in the 
 principal case was not sufficient to oust that Court of its jurisdiction. 
 He spoke of these Courts of Antient Demesne as putting people out of 
 the protection of the law, and fitter to be totally destroyed than to be 
 favoured and assisted. Mr. J, Wilson said, it was a strange, wild ju- 
 risdiction; where the jurors are judges both of law and of fact, and 
 ignorant country fellows are to determine the nicest points of law, and 
 therefore he was not for granting such leave unless compelled by au- 
 thority. Indeed, if the case is brought strictly within the rule, then 
 the leave must be granted : we cannot help it. The authorities down 
 from Alder? s case [5 Co. 105.] to this time, it is true, are " Thai an- 
 tient demesne is a good plea in ejectment." But if you would oust this 
 court of jurisdiction, you must shew <£ that another court has jurisdic- 
 tion." Now this affidavit does not shew " that there are suitors in the 
 other court," nor " that these lands are holden of a manor, which 
 manor is holden in antient demesne :" whereas, if the lands only, and 
 not the manor, are antient demesne, the matter cannot be tried in the 
 
 0) Run. Eject. 234. (i) Ibid. 23,5. (#) Ibid- (d) 1 Bi. R. 197. 3 Sell, Pract-189. 
 
 (*) Tidd's Pract.573. S T. R. 474.
 
 3y4 Of the Pica and Issue, §c. [Chap. XIV. 
 
 court of that manor. The affidavit ought to have shewn « That the 
 lands are holden of a manor, which manor is antient demesne." It 
 cannot be tried " Whether the lands themselves are antient demesne." 
 Doomsday will not shew this. Doomsday will only shew whether the 
 manor is sc or not. The form of the plea makes this as clear as the 
 sun. It ought also to be she^vn that the lessor of the plaintiff has a 
 freehold. Hew can he sue there in ejectment as a lessee of a term ? 
 Upon such a strange, wild jurisdiction as this, and upon such an affi- 
 davit, I am not fcr giving the defendant leave to plead this plea. Rule 
 discharged (<z). 
 
 In every such plea, therefore, the defendant must state another ju- 
 risdiction : as, if an action be brought here for a matter arising in 
 Wales, to bar the remedy sought here, the jurisdiction in the Court in 
 IVales must be shewn; and in every case to repel jurisdiction here, 
 the party must shew a more proper and sufficient jurisdiction else- 
 where {b). 
 
 Pleas either in bar or in abatement of the action are now, however, 
 seldom, if ever, pleaded : for, according to the modern practice, the 
 defendant, if he appear, is generally bound by the consent- rule, to 
 plead the general issue of not guilty : but where an ejectment was in- 
 tended to try the right to a rectory, the defendant was admitted to 
 plead that he himself was rector, and to traverse the rectorship of 
 the plaintiff's lessor, in order by that means to bring the right in ques- 
 tion (r). 
 
 For the most part, however, the defendant can plead the general 
 issue only : which is therefore usually left, with the consent-rule, at 
 the Judge's chamber, or the Prothonotary's to plead ; and then judg- 
 ment may be entered for want of a plea, as in other actions, without 
 a special motion in Court for the purpose (i). 
 
 The present practice of delivering a declaration to the casual ejector 
 before the Term, forces the defendant to issue the same Term (t). 
 
 In making up the issue, the first declaration must not be varied from, 
 except in the defendant's name (y ). 
 
 According to the words of the rule for judgment against the casual 
 ejector, unless the tenant appears, a new declaration against him should 
 in strictness be delivered before a plea in form can be required (g). 
 
 Where the name of the plaintiff's lessor was inserted in the body of 
 the plea (as the person complaining) instead of that of the nominal 
 plaintiff, judgment signed against the casual ejectcr under the idea that 
 the plea was null and void was set aside, with costs, as irregular (k). 
 
 CO z Bur. 1047. 8 T. R. 47 _;. (i) Run. Fjcct. 2 j3. (-0 Ibili - 
 
 00 Ibid. (0 Ibid. (/) 2Ld. Rr.vm.14tr. (g) 2 Sell. Pract 188. 
 
 U) Ibid.
 
 Sect. II.] Of the Evidence. 395 
 
 A new defendant in ejectment may give a rule to reply and non-pros. 
 the plaintiff, who being nominal, can have no costs (a). 
 
 If the plaintiff after issue and before trial enters into part of the pre- 
 mises, the defendant at the assizes may plead it as a plea puis darrien 
 continuance : nor is it in the discretion of the judge to reject it or not ; 
 but he is bound to receive it, it is made part of the record, and the 
 trial is stopped, for the plaintiff cannot reply to it at the assizes (f). 
 
 Death of the Plaintiff, — The death of the plaintiff in ejectment shall 
 not abate the action ; especially if another person of the same name re- 
 side on the lands ; for the Court will take notice that it is the lessor 
 of the plaintiff that is concerned in interest (c). 
 
 As the plaintiff has a right to proceed both for the possession and the 
 trespass, the death of the lessor, though he be only tenant for life, is 
 no abatement ; nor can it be pleaded puis darrien continuance, because 
 the right is supposed in the lessee : and though the possession cannot be 
 obtained, yet the plaintiff has a right to proceed for damages and costs ; 
 all that the Court can do, is to oblige him to give security for costs, 
 when the lessor is dead (d). But if in such case the plaintiff is nonsuited 
 for want of defendant's appearing and confessing, the executor of the 
 lessor shall have no costs taxed on the common rule (e). 
 
 Of Defendant. — If one of several defendants die after issue joined 
 and before verdict, the death should be suggested on the roll before 
 trial, and a venire awarded to try the issues between the survivors. — Yet 
 when the venire was awarded against both, and the verdict was against 
 both, upon suggesting the death of the one upon the roll after verdict, 
 the plaintiff had judgment for the whole against the other (f). 
 
 Of either Party — If either party die after the commencement of the 
 assizes, though before trial, it is within the stat. 17 C. 2. c. 28. made per- 
 petual by 1 J. 2. c. 17. j-. 5. whereby it is enacted, That in all actions 
 personal, real or mixed, the death of either party between the verdict 
 and judgment shall not be alleged for error, so as such judgment be 
 entered within two terms after verdict. — If judgment be signed, though 
 it be not entered on the roll within two terms after verdict, it is suffi- 
 cient (g). 
 
 Of the Evidence. 
 
 In this action the legal title must prevail ; nor is there any difference 
 in this respect between the case of an ejectment brought by a trustee 
 against his cestui que trust and any other person (h) : the plaintiff cannot 
 recover, but upon the strength of his own title ; he cannot found his 
 
 (a) 2 Bl. R. 763. (P 1 Sell. Pract. v; 2. 3 T. R. 554. (c) 1 Mod. 252. 
 
 (d) 2 Sell. Pract. 103. 2 Str. IC56. (?) 2 Sell, Pract. 193. 
 
 (/) Ibid. 1 Bur. 363. (g) a Cell. Pract. 194. 
 
 b) 7 T, R. 47. g T. R. 7.. I2J, 4 Bur. 2487.
 
 396 Of the Evidence in [Chap. XIV. 
 
 claim upon the weakness of the defendant's title, for possession gives 
 the defendant a right against every man who cannot shew a good title. 
 Therefore though the defendant have no title in himself, if he prove a 
 title out of the lessor, it will be sufficient : and any person in posses- 
 sion of an estate as tenant, or devisee, may it seems bring in a bill in 
 equity to discover the title of a person bringing an ejectment against 
 him, to have it set out and seen whether that title be not in some 
 other (a). 
 
 Thus, in ejectment by landlord against tenant whose lease is ex- 
 pired, the latter is not barred from shewing that his landlord's title is 
 extinct (b). 
 
 But when defendant would prove a title out of the lessor, it must 
 be a subsisting one ; for the mere production of an antient lease, 
 though for a thousand years, will not be sufficient, unless he likewise 
 prove possession under it within twenty years (c). 
 
 So, if the defendant produce a mortgage deed, the interest upon 
 which has not been p,aid and the mortgagee npver entered, it will not 
 be sufficient to defeat the plaintiff, claiming under the mortgagor; be- 
 cause it will be presumed that the money was paid at the day, conse- 
 quently it is no subsisting title. But if the defendant prove interest 
 paid upon such mortgage, after the time of redemption, and within 
 twenty years, it will be sufficient to nonsuit the plaintiff (J). 
 
 The true question in an ejectment is who has the possessory right. 
 
 Thus, where the tenant's title accrues prior to that of the lessor of 
 the plaintiff, the latter cannot succeed in this action ; and this, even 
 though, (where he claims under an elegit subsequent to a lease granted 
 to the tenant in possession,) he gives the tenant notice that he does not 
 mean to disturb his possession, only wishing to get into the receipt of 
 the rents and profits of the estate (e). 
 
 So, a satisfied term may be presumed to be surrendered ; but an un- 
 satisfied term, raised for the purpose of securing an annuity, during the 
 life of the annuitant, cannot ; but it maybe set up as a bar to the heir at 
 law, even though he claim only subject to the charge (/). 
 
 It has however been resolved by Lord Mansfield and many of the 
 Judges, never to suffer a plaintiff in ejectment to be nonsuited by a 
 term standing out in his own trustee, or a satisfied term set up by a 
 mortgagor against a mortgagee; but to direct tl e jury to presume it 
 surrendered. The rule is to be understood thus : that the trust estate, 
 shall not be set up in an ejectment to defeat the cestui que trust in a clear 
 case ; in such case, where the trust is perfectly clear and manifest, the 
 rule stands upon strong and beneficial principles, because in ejectment 
 
 {a) Bull. N. r. no. i Vcs. 249. ('') 4T. R. 682. (0 Bull. N. P. IK 
 
 \d) Ibid. (.«) S T. 11. a. (/) 3 T. R. 6§4-
 
 Sect. II.] the Action of Ejectment; §c. 397 
 
 the question is, who is entitled to the possession (a). But if the 
 trust be doubtful, a Court of law will not decide upon it in an eject- 
 ment (b). 
 
 So where a legal term was created for a particular purpose, if that 
 purpose were satisfied, or if it were unsatisfied and not connected with 
 the litigating parties, it shall never be set up between them in eject- 
 ment ; but shall be considered as if it had never been created (r). — In 
 laying down this rule, Lord Mansfield observed, that " Where a trust 
 term is a mere matter of form, and the deeds mere muniments of an- 
 other's estate, it shall not be set up against the real owner : it is there- 
 fore settled that a satisfied trust shall be taken to be a trust for the be- 
 nefit of the heir at law. A trust shall never be set up against him for 
 whom the trust was intended. It is a mere form of conveyance ; and 
 it is admitted, that where the term is in trust for the benefit of the les- 
 sor of the plaintiff, the defendant shall not set it up in ejectment as a 
 bar to his recovery (d). 
 
 " To go a step farther: third persons may have titles, and therefore 
 the Court say, that where there is a tenant in possession under a lease 
 which is a bar to the recovery of the lessor, he being to recover by the 
 strength of his own title, yet to prevent this from being turned impro- 
 perly against the person entitled to the inheritance whose right is not dis- 
 puted by the tenant, if the lessor dispute the property only against an- 
 other, and give notice to the tenant that he does not mean to disturb his 
 tenancy, the Court will never suffer the tenant to set up the lease as a 
 bar to the recovery (e). 
 
 " There is another distinction to be taken ; whether supposing a title 
 superior to that of the lessor of the plaintiff exists in a third person, 
 who might recover the possession against him, it lies in the mouth of 
 the defendant to say so in answer to an ejectment brought against him- 
 self by a party having a better title than his own (f ). I found this point 
 settled before I came into this Court, that the Court never suffers a mort- 
 gagor to set up the title of a third person against his mortgagee: for he 
 made the mortgage, and it does not lie in his mouth to say so, though 
 such third person might have a right to recover possession. Nor shall a 
 tenant who has paid rent, and acted as such, ever set up a superior title 
 in a third person against his lessor in bar of an ejectment brought by 
 him; for the tenant derives his title from him" (g). 
 
 Consonant to this principle, it was held that in an ejectment brought 
 by a second mortgagee against the mortgagor, the defendant shall not 
 give in evidence the title of the first mortgagee in bar of the second; 
 because he is barred to aver contrary to his own act, that he had no- 
 
 («) Doug. 721. 4 T. R. 682. 7 T. R. 2. (b) 7 T. R, 47- (0 * T. R. 758. 
 
 00 Ibid. inn. 759. (V) Ibid. 76c. (/) Ibid. (j) 3 Salk. 152. 
 
 Covvp. 601. iH. Bl- 27.
 
 5f)S Of the Evidence in [Chap. XIV. 
 
 thing in the lands when he took upon hirn to convey by the second mort- 
 gage (a). 
 
 Also, where a lessee for years had got possession of some mortgage 
 deeds, and endeavoured to set up that title against the mortgagor ; 
 though it shevfed th.it the plaintiff had no right to recover as against the 
 second mortgagee, yet he was permitted to recover against the defendant 
 in that instance; and the decision was acquiesced under (£). 
 
 So, the surrenderor before admittance is considered as a trustee for 
 the surrenderee, and therefore is not permitted to setup a formal objec- 
 tion against the plaintiff's recovering that property which he holds for his 
 benefit (r). 
 
 So, that though as a general rule, it is true, that the plaintiff in this 
 action must recover by the strength of his own title, constant exceptions 
 to the rule have notwithstanding been admitted (d). 
 
 There is an equity for the landlord, against whom judgment had been 
 obtained in ejectment by his own negligence, to restrain his tenant, and 
 those to whom he had attorned, from setting up the lease against his 
 ejectment, though a year and three quarters of the term were unexpired, 
 and it is not necessary that the ejectment should be brought before the 
 bill actually filed (<?). 
 
 Where several matters are necessary in order to establish a complete 
 title, the plaintiff must prove all those requisites. 
 
 Therefore, in an ejectment for a rectory, if the plaintiff prove the 
 taking of the tithes only, and not an entry into the glebe, he will be 
 nonsuited. For the plaintiff ought to prove that his lessor was admitted, 
 instituted and inducted, and that he has read and subscribed the thirty- 
 nine articles, and declared his assent and consent to all things contained 
 in the book of Common Prayer. But he need not prove a title in the 
 patron •, for institution and induction upon the presentation of a stranger 
 are sufficient to bar him who has right in ejectment, and to put the 
 rightful patron to his quare impedii: but presentation ought to be 
 proved, and institution would not of itself be sufficient evidence of it, 
 though it were recited in the letters: especially if induction or possession 
 have not followed. — Whether proof of a verbal presentation would suf- 
 fice, seems doubtful (f). 
 
 The books of an incumbent, respecting his tithes, may be evidence 
 for his successor. This is the almost only instance in which the law 
 permits the private memoranda of a person deceased to affect the rights 
 of third parties (g). 
 
 So also, if an ejectment be brought by the assignees for lands which 
 may have come to the bankrupt after his bankruptcy, and before the al- 
 
 (a) Bull. N. P. no. (b) 3 T. R. 760. in n. («) 1 T. R. 395. 6:0. 
 
 (</) Ibid. (<•) xoVes. 5.44. (/) .Latch. 6a. Buli.N. P.icj 
 
 (r) jT.R. 123. 2 V«. 43. cited.
 
 Sect II.] the Action of Ejectment; &c. 399 
 
 lowance of the certificate, they should give in evidence a special con- 
 veyance of this part (a). 
 
 Reasonable presumption, however, will be admitted in favour of a 
 title 'b). 
 
 Therefore where a prebendary brought this action to recover a house 
 built upon his prebendal scite, the prebendary being called to prove the 
 several requisites necessary by the stat. 13 Eliz. c. 12. and 13 Sc 14 
 C. 2. c. 4. the Chief Justice said, " Those shall be presumed upon 
 sound principles of law" (c). 
 
 So, where the lessor claims as heir at law, as for instance of A. it is 
 sufficient to prove that A. was in possession, and that the lessor is his 
 heir; for it shall be intended, prima fane, that A. was seised in fee, till 
 the contrary appear (d) ; and, if there be an agreement before marriage, 
 that a settlement shall be made of the wife's estate, reserving to her a 
 power to dispose of it, which agreement is signed by the intended hus- 
 band and wife, but not sealed, and before the marriage the wife dis- 
 poses of it to the husband, who survives her and devises the estate by 
 will, the title of his devisee is such a doubtful equity as cannot be set up 
 in an ejectment against the title of the wife's heir at law (f). 
 
 So, where plaintiff produces an original lease of a long term and 
 proves possession for seventy years, the mesne assignments shall be pre- 
 sumed {f ). 
 
 However, as to the doctrine of presumption which has considerable 
 weight in the scale of evidence, this general principle must be attended 
 to: namely, that, generally, length of time alone is nothing: but pre- 
 sumption must arise from some facts or circumstances arising within 
 that time (g) : for there are two sorts of presumption, one a presump- 
 tion of law, not to be contradicted; the other a species of evidence; 
 and there can be no presumption of the nature of evidence in any case, 
 without something from whence to make it ; some ground on which to 
 found the presumption. — Every presumption may be encountered, or to 
 speak more technically, rebutted, by contrary evidence ; which in the 
 case of executors, is called rebutting an equity ; as the implied revoca- 
 tion of a will for example, may be rebutted by parol evidence (/.>). 
 
 Thus, a demise of premises in Westminster, late in the occupation of 
 A. particularly describing them, part of which was a yard, does not 
 pass a cellar situate under that yard, which was then in the occupation 
 of B. another tenant of the lessor, and the lessor in an ejectment 
 brought to recover the cellar is not estopped by his deed from going in- 
 to evidence to shew that the cellar was not intended to be demised (z). 
 
 Tn ejectment, the landlord having proved payment of rent by the de- 
 
 . ) 2 Esp. N. P. 43*- -) 7 T. R. 488. '/) 3 Wil*. 366. 
 
 (J) Run. Eject. 311. (?) aT.R.6^4. (/) 2 Bl. R. 123S. 
 
 V Run, F.jcct. 276. ■ ) % Bur. ic;:, j. (i) 1 T. R. 701,
 
 400 Of the Evidence in [Chap. XIV. 
 
 fendant, and half a year's notice to quit given to him, cannot be turned 
 round by his witness proving on cross examination, that an agreement 
 relating to the land in question was produced at a former trial between 
 the same parties, and was on the morning of the then trial, seen in the 
 hands of the plaintiff's attorney, the contents of which the witness did 
 not know; no notice having been given by the defendant to produce 
 that paper : for though it might be an agreement relative to the land it 
 mi^ht not affect the matter in judgment, nor even have been made be- 
 tween these parties (a). 
 
 This being an action of trespass, the ward or place mentioned in the 
 declaration, is material. 
 
 Thus, in ejectment for a house in the parish of St. Peter, in the ward 
 of Cheap, the defendant proved it to be in the ward of Farringdon Within, 
 and that no part of the parish of St. Peter was in the ward of Cheap t 
 and the plaintiff was nonsuited (b). 
 
 But if the plaintiff declare on a lease of a certain date, though his 
 proof do not establish the lease as declared on, yet if he prove a good 
 and subsisting lease at the time, it will be sufficient (c). 
 
 As where the declaration was on a lease made the 14th of January, 
 30th of EU%. and the evidence was a lease sealed the 13th of the same 
 year, the evidence was held to be good •, for if it was a lease sealed the 
 13th, it was a good lease on the 14th (d). 
 
 The rules respecting notice to quit, before a tenant at will, or more 
 correctly speaking, a yearly tenant, can be ousted of his possession, 
 and what will amount to a waiver of it pointedly apply to the present 
 subject ; for a tenancy must be determined before the day of the demise 
 laid in the declaration; we refer the reader for information on these 
 points to the seventh chapter of this work, where they occur as con- 
 nected with the tenancy from year to year. 
 
 Notice to determine a composition for tithes must be the same as be- 
 tween landlord and tenant (e). 
 
 If a man gets into possession of a house to be let, without the privity 
 of the landlord, and they afterwards enter into a negotiation for a lease, 
 but differ upon the terms ; the landlord may maintain ejectment to re 
 cover possession of the premises, without giving any notice to quit (f). 
 
 An ejectment is a possessory action, in which almost all titles to land 
 are tried (g). — Whether the party's title be to an estate in fee, fee-tail, 
 for life, or for years, the remedy is by one and the same action ; and it 
 is now almost the only remedy in practice for recovering land wrong- 
 fully withheld (h). 
 
 In this action, therefore, titles to lands arising under wills are tried. 
 —These for the most part are cases brought by the heir at law against 
 
 (e) iz East's R. 237. (l>) iStr. 595. (c) 2 Esp.N. P. 459- 00 4 Leon. 14- 
 
 (<0 2 Br. R. 161. (/) zCampb. 505. (^iBur.90. (£) % Bur. 66;.
 
 Sect. II.] * the Action of Eject 'mtnt, 8$c. 401 
 
 the devisee, or against the person who claims to be heir at law, on the 
 ground of bastardy ; or by a devisee claiming an estate under a will. 
 
 Where one brings an ejectment as heir at law, he ought properly to 
 'make a regular pedigree from the ancestor under whom he claims : mere 
 report of relationship, or supposition, are not sufficient ; for if such 
 •evidence were admitted, the estate might be carried contrary to the rules 
 of descent ; as for example, to the paternal, instead of the maternal 
 line {a). 
 
 The entry of the heir is necessary only, where the lands were in the 
 actual occupation of his ancestor : for if they are held under a lease for 
 years, and the lessee had entered under his lease, the heir will be con- 
 sidered as having a seisin in deed, before entry and receipt of rent ; 
 because the possession of the lessee for years is his possession (£). 
 
 In ejectments against devisees, or their htnrs, the matter turns on the 
 due execution of the will ; on the testator's capacity to devise (c) ; or 
 on the legality of the devise itself: and though in order to effectuate 
 the intention of a devisor, a greater latitude of construction is allowed 
 by the Courts in the case of a will than in the construction of deeds [d) ; 
 yet, words tending to disinherit the heir at law are insufficient to prevent 
 his taking, unless the estate be given to somebody else (e). For it is a 
 rule, that the heir at law is not to be disinherited without positive words 
 in the will, or a plain intention in the devisor that he shall be so, to be 
 collected from the words of the will if). 
 
 The defendant in ejectment is entitled to the general reply, where the 
 plaintiff, claiming by descent, proves his pedigree and stops, and the 
 defendant sets up a new case in his defence, which is answered by evi- 
 dence on the part of the plaintiff (g). 
 
 As this action sometimes turns upon the question of marriage, it may 
 be observed, that marriages in fact may be proved either by the register 
 or a copy of it, or by viva voce evidence of the ceremony corroborated 
 by circumstances identifying the parties (/;). It is not necessary, how- 
 ever, to prove a marriage in fact : a reputed marriage will be sufficient; 
 and that may be substantiated by cohabitation, reputation, or other cir- 
 cumstances, from which a marriage may be inferred iz); and whoever 
 wishes to impeach a marriage, must shew wherein it was irregular (k). 
 
 With respect to cohabitation, it is the practice to admit evidence of 
 what the parties have been heard to say as to their being or not being 
 married (/). 
 
 In this action, therefore, proof of marriage differs from that required 
 in a dower, in which latter action it must be tried by the bishop's certi- 
 
 (<?) i Bl. R. 1099. (b) 1 Cruise's Dig. tit. i.s. 39. 1 Inst. ij.a. 3 Wils. 52L 
 
 7 T.R. 390. 8 T. R. 313. (0 aEsp.N-P.467. (V) 8 T.R.519. (e) Ibid. 502. 
 
 (/) Ibid. ,58*. (o-) 4 T.R. 497- (*) R« : • Ejrct. 357. (i) 4 Bur. 20,58, 
 
 (i) Ibid. 360. (0 BulLN. P.»94. 
 
 Dd
 
 402 Of the Evidence in [Chap. XIV. 
 
 flcate. However, except in cases of actions for criminal conversation, 
 (which are in some sort penal in their nature) and prosecutions for 
 bigamy, (in both of which an actual marriage must be proved), reputa- 
 tion is a good proof of marriage, and the jury may infer it from circum- 
 stances (a). 
 
 If the lessor of the plaintiff claim title as guardian in socage, he may 
 be called upon lO prove that the infant is not fourteen years of age (b). 
 
 In ejectment of tenants of the mortgagor, he defended, and the plain- 
 tiff proved the mortgage only, which proof was held not to be sufficient ; 
 for he should have proved the lands to be in possession of the persons 
 to whom the ejectments were delivered, as the defendant only admits 
 himself to be landlord to them of lands in their possession (c). 
 
 If tenant by elegit be lessor of the plaintiff, it will be necessary for 
 him t j prove the judgment, the elegit taken out upon it, and the inqui- 
 sition and return thereupon, by which the land in question is assigned 
 to him(r/); and if by that it appear, that more than a moiety was ex- 
 tended, he cannot recover, for it would be ipso facto void, and not need 
 a judgment or audita querela to avoid it (e). 
 
 So, in ejectment by the conusee of a statute-merchant, he must 
 prove a copy of the statute, and of the capias si facias returned, and the 
 extent also returned, and also the liberate returned ; for though by the 
 return of the extent an interest is vested in the conusee, yet the actual 
 possession of the interest is by the liberate: for an extent gives only a 
 possession in law (f). 
 
 In ejectment for a copyhold on a forfeiture, the plaintiff ought to 
 prove that his lessor is lord and the defendant a copyholder, and that he 
 committed a forfeiture; but the presentment of the forfeiture need not 
 be proved, nor the entry or seisure of the lord for the forfeiture (g). 
 
 If an ejectment be brought against the lessee for years of a copy- 
 holder (relying upon the lease as a forfeiture) the plaintiff must prove 
 an actual admittance of the copyholder : and it will not be sufficient to 
 prove the father admitted and that it descended to the defendant's 
 lessor as son and heir, and that he had paid quit rents : for a copy- 
 holder cannot make a lease except to try a title, before admittance 
 and an actual entry ; and therefore if after admittance he were to sur- 
 render without making an actual entrv, the surrender would be void(&). 
 
 The recital of the will in the copy of the admittance, is good evi- 
 dence of the devise against the lord or any other stranger. But if the 
 suit be between the heir of the copyholder and the devisee, the will 
 itself ought to be produced (z). 
 
 (a) 2 Wils. 122. 125. 2 Str. 960. 7 T.R. 3J. 1 Doug. 174. 1 IJ.Raym.744. 1 Bl. R.63S. 
 A Bur. S059. (i) Run. Eject. 225. (e) 2 SelL Pract. 318. 2 Cromp. Pract. 194. 
 
 (rf) Bull. N. P. 104. 0) Salk. 563. 1 Ld. Rayra. 7x8. (/) Bull.N. P.icu. 
 
 u) Ibid. 107. {Si vu'i ar.ii.) (/.) Ibid, (0 Ibid. ic8.
 
 Sect. IL] the Action of Ejectment, §c. 403 
 
 Whether copyholds are within the statute against fraudulent con- 
 \ r eyances, and therefore the plaintiff claiming under a voluntary con- 
 veyance shall prevail against a defendant claiming under a subsequent 
 purchase for a valuable consideration, is doubtful (a). 
 
 If the trustees of a public turnpike act, which empowers them to 
 erect toll-houses and to mortgage, and which declares that there shall 
 be no priority among the creditors, have made a mortgage of the 
 toll houses and gates, which is not within their power, and an eject- 
 ment is brought against them by the mortgagee, they are not estopped 
 by their deed from insisting that the Act gives them no such power (b) j 
 for the general principle, that the party granting is estopped by his 
 deed to say that he had no interest, does not apply where trustees are 
 acting not for their own benefit, but for that of the public ; besides 
 the deed cannot operate in direct opposition of an Act of Parliament 
 which negatives the estoppel; and this being a Public Act, the Court 
 are bound to take notice that the trustees had no such power ' c). 
 
 Witnesses. — With respect to witnesses, in general a witness must 
 testify from his own knowledge of the fact which he is called upon 
 to prove; but he may assist his memory as to the circumstance, by 
 memoranda taken at the time; yet if he does not speak from any recol- 
 lection which he has, but merely from such memoranda, the original 
 minutes must be produced by him at the time of examination (d). 
 
 The tenant is incompetent to prove the fact of possession ; for he 
 cannot be permitted to support his own possession, by his own testimony ; 
 besides he is liable for the mesne profits ,e). 
 
 But where a witness produced to prove the lease was objected to 
 because he had the inheritance in the land demised, it being answered 
 that both parties claimed under the same person, he was admitted to 
 give evidence: for under ch"~'i instances between indifferent persons, 
 and where he has not any intercom in the question, the landlord is a 
 competent witness to prove the terms ot his own demise (f). 
 
 In an action at th? suit cf a tenant claiming a right of common over 
 a piece of waste land ag^nst the owner of an adjoining close, for not 
 repairing an intervening fence, the landlord under whom the plaintiff 
 holds the premises in respect of which he claims the right of common 
 is not a competent witness to prove the light. Neither in sueh an 
 action are others who have a similar right of common, competent wit- 
 nesses for that purpose (g). 
 
 Declarations by tenants are admissible evidence after their death, to 
 shew that a certain piece of land is parcel of the estate which they 
 occupied; and proof that they exercised acts of ownership in it (not 
 
 (a) Bull. N. P. ic8. Dougl. 716. n. i. Cosvp. 158. (/>) 2 T. R. 159. (,) Ibid, 17*, 
 (d) Run. Eject. 2,53. (f) Cowp. 622. 1 Str. 632. 
 
 if) 3 T. R. 309, Ruu, Eject, »jfi, x T. R. 4- {§) l Campb. 29c. 
 
 D d 2
 
 404 Of the E-vidence in [Chap. XIV. 
 
 resisted by contrary evidence,) is decisive. — Whether parcel or not, is 
 always matter of evidence (V. 
 
 So, where the plaintiff claimed as devisee in remainder under a will 
 twenty-seven years before, under which there was no possession, 
 declarations by the tenant who was in possession at that time, that he 
 held as a tenant to the devisor, were admissible evidence to prove seisin 
 in the devisor b). 
 
 So, a grantee, when he appears to be a bare trustee, is a good wit- 
 ness to prove the execution of the deed to himself (r). 
 
 An heir apparent may be a witness concerning the title of the land, 
 but the remainder-man cannot, for he has a present estate in the land ; 
 but the heirship of the heir is a mere contingency. So, tenant-in-tail, 
 remainder in-tail, he in remainder cannot be a witness concerning the 
 title of these lands ; for he has an estate, such as it is (d). 
 
 In an action at the suit of a lessor against his lessee, for not culti- 
 vating the farm according to covenants contained in the indenture of 
 lease, the sub-lessee of part of the premises is a competent witness to 
 prove performance of the covenant on part of the defendants). 
 
 As to executors, an executor may be a witness in a cause concern- 
 ing the estate, if he have not the surplusage given him by the will (f). 
 It is clear therefore, that an executor in trust may be a witness : and 
 it is now held to be no objection to an executor's testimony, that he 
 may be liable to actions as executor de son tort. So an executor who 
 takes not any beneficial interest is a competent witness to prove the 
 sanity of his testator (g). 
 
 A person who had sold the inheritance without any covenant for 
 good title or warrantry was allowed to be a witness to prove the title of 
 the vendee (/.>). 
 
 Husband and wife cannot in any civil case be admitted as witnesses 
 for or against each other ; this is now considered as a settled principle 
 of law (i). 
 
 A clerk of the Post Office accustomed to inspect franks for the 
 detection of forgeries, was allowed to be examined to prove the hand- 
 writing of an instrument to be an imitated and not a natural hand, 
 and also to prove that two writings suspected to be imitated hand> 
 were written by the same person (£). But, in a subsequent case, 
 where similar evidence was oilered to be produced, L. Kenjon said he 
 could not receive it, and observed, that though such evidence was 
 received in the preceding case, he had in his charge to the jury laid no 
 stress upon it (7) . 
 
 The furthest extent, his Lordship observed, to which the rule had 
 
 (-0 lT. R. 53. (b) Ibid. 55. (0 1 P. YV"ms. 287. 290. (d) Saik. 28.5. 
 
 (.) 1 Campb. 341. (/) 1 Mod. 107. (g) Doug. 139. 141- (K 1 Str. 445. 
 (/) 4 T. P.. 678. 1 T. R. 268. (I) 4 T. R. 497. (/) Pcake'i L. ci Evid. 1 76 
 
 8
 
 Sect. II.] the Action of Ejectment, 8$c. 405 
 
 been carried, was to admit a person who had been in the habit of 
 holding an epistolary correspondence with the party to prove his hand- 
 writing, from the knowledge which he acquired in the course of that 
 correspondence; a case reported by Fitzgibbon, (195) was the first in 
 which such evidence was admitted. That evidence was admitted on 
 sound principles ; for if, where letters are sent, directed to a particular 
 person on particular business, an answer is received in due course, it 
 is a fair presumption, that the answer was written by the person whose 
 handwriting it purports to be : but the franks [proof of which was in 
 question,] might be the defendant's handwriting, or they might be 
 forgeries, for no communication on the subject of the action [a bill of 
 exchange having on it the supposed acceptance of the defendant] was 
 had with the defendant (a). 
 
 With respect to the objection of interest, which if substantiated 
 applies to the competency of a witness, if a person who is interested, 
 execute a surrender or release of his interest, he may be examined as 
 a witness, although the party refuse to accept the surrender, or re- 
 lease : for every objection of interest proceeds on the presumption that 
 it may bias the mind of the witness ; but this presumption is taken 
 away by proof of his having done all in his power to get rid of the 
 interest (b). 
 
 An objection to the competency of a witness should be first made at 
 the trial (V) ; for if made then, it may be shewn to have been released, 
 or otherwise done away : therefore on motion for a new trial, no 
 objection to a witness can be received, which was not made at the 
 trial. Nay, an objection to the competency of witnesses discovered 
 after trial, is not sufficient ground, of itself, for granting a new 
 trial-, though it may have some weight, if the applicant appears to 
 have merits : and though the objection appears properly made at the 
 trial, yet in case of doubt, it is usual to apply to the credit, rather 
 than the competency of a witness (d). 
 
 Respecting the weight, as evidence, of a survey of lands, it is laid 
 down generally by Lord C. B Gilbert, that an old terrier or survey of 
 a manor, w r hether ecclesiastical or temporal, may be given in evidence, 
 for there are no other ways of ascertaining the old tenures or boun- 
 daries (e). 
 
 Accordingly, the survey of a religious house, taken in 1563, was 
 allowed to be good evidence to prove the vicar's right to small 
 tithes (/). 
 
 But this opinion seems to relate, with regard to terriers, to such as 
 are signed, not only by the parson, but by the churchwardens and 
 
 (a) Peake's L. cf Evid. 176. (&) Doug. 141. (<r) Ibid. 140. 
 
 (d) 1 T. R. 719. Run. Eject, ajax, Bl. R. 345. (<) I Str. 95. in mtis. 
 
 (/) I Wils. 170,
 
 406 Of the Verdict hi [Chap. XIV. 
 
 substantial inhabitants of the parish, or at least by .he church- 
 wirlens, not being of the parson's nomination: and, in respect of 
 surveys, to such as are signed by the tenants of the manor, or appear 
 :o have been made at a court of survey. For then, being of a public 
 nature, they cannot be supposed to have been framed and attested to 
 serve the private interest of any individual : upon which principle also, 
 court rolls, or at least parish bonks are admitted in evidence, when 
 the rights of third persons are concerned (a). 
 
 But surveys, although of a private nature, have been admitted in 
 evidence where circumstances could be adduced to shew the improba- 
 bility of their being taken to serve any interested purpose in the maker. 
 — Thus, where two manors were in the banc's of the same person, 
 and a survey was to be taken, and afterwards one of them was con- 
 veyed to another person, and after a long time there were disputes 
 between the lords of the two manors, this old survey was held to be 
 evidence. ^o an old map of lands was allowed to be evidence; as 
 when it came along with the writings and agreed with the boundaries 
 adj"ste.i in an antient purchase (b). 
 
 But where a terrier or sur« w is not attended with such circum- 
 stances, and is the mere private memorial of the pa^y for whom it is 
 made, it sc.',: -,.. only admissible as evidence against him c). 
 
 Where a landlord ha? a right to enter for non-payment of rent, he 
 cannot recover in ejectment at common law, unless he demand the rent 
 on the day on which it became due; nor under the statute 4 G. 2. if 
 sufficient distress be on the premises (d). 
 
 Of the verdict. — With respect to the verdict, the plaintiff shall re- 
 cover according to the title that he makes out, though not consistent 
 with that stated in the declaration : for the true question in an eject- 
 ment is, who has the possessory right (e). 
 
 Therefore, where the plaintiff declared on a demise for seven years, 
 but had title to five only, he recovered according to his title notwith- 
 standing f). 
 
 So, the plaintiff may recover as many acres as he proves title to, 
 thought he declare for more : and though the declaration goes for several 
 things, and there is a general verdict : though the declaration be bad as 
 to part, yet the plaintiff" may recover for the remainder (g) 
 
 As, where ejectment was " for one messuage or tenement and four 
 acres of land to the same belonging ;" the words " to the same belong- 
 ing," were held to be void ; for land cannot properly belong to a 
 hou-je, and then it is as a declaration of a messuage or tenement, and 
 four acres of land ; which though it be void for the first, it is good for 
 
 (</) 1 Wils. 170. (b) ibid. (0 Ibid. 
 
 <>') 7 T. R. 117. (.•) Bull. N. P. ic6. (/) Ibid. ,3 T. R. 13. 
 
 («•) a Esp. N. P. 49c. 1 Bur. 330.
 
 Sect. II.] the Action of Ejectment, §c. 407 
 
 the land: whereupon the plaintiff released the damages anl for the 
 four acres had judgment (a). 
 
 In a recovery for ejectment of one hundred acres of land, twenty of 
 pasture, &c. without mention of any house or garden, it was never- 
 theless held that the plaintiff should recover all the erections there- 
 on {b). 
 
 The maxim however that cujus est solum, ejus est usque ad caelum ct ad 
 inferos, does not apply in every case: for it has been adjudged, that 
 the demise of premises in Westminster, late in the occupation of A. 
 particularly describing them, part of which was a yard, did not pass a 
 cellar situate under that yard which was then in the occupation of B. 
 another tenant of the lessor (c). 
 
 A verdict cures a defect in setting out the title, though it cannot cure 
 a defective title (d). 
 
 After verdict, if the objection be grounded upon the mere mistake 
 of the clerk, or a trifling nicety, there is no need of any actual amend- 
 ment at all: the Court will overlook the exception [e\ 
 
 This distinction therefore must be attended to : if there be only evi- 
 dence at the trial upon such of the counts as are good and consistent, a 
 general verdict may be altered by the notes of the Judge, and entered 
 only on those counts ; but if there be any evidence applicable to the 
 other bad or inconsistent counts, the postea cannot be amended : the 
 only remedy then is by a venire de novo {f). 
 
 After verdict in ejectment for a messuage and tenement, the Court 
 will give leave to enter the verdict according to the Judge's notes for 
 the messuage only, pending a rule to arrest the judgment, without 
 obliging the lessor of the plaintiff to release the damages {£). 
 
 Of the "Judgment. — The judgment in ejectment is a recovery of the 
 possession, (not of the seisin or freehold) without prejudice to the 
 right as it may afterwards appear, even between the parties. He who 
 enters under it, in truth and substance can only be possessed according 
 to right, prout lex postulate If he has a freehold, he is in as a freeholder; 
 if he has a chattel interest, he is in as a termor : and in respect of the 
 freehold, his possession enures according to right. If he has no title, 
 he is in as a trespasser; and without any re-entry by the true owner, 
 is liable to account for the profits (h). 
 
 Where the plaintiff declares for the whole of certain premises of 
 which he recovered a moiety only, the judgment should not be for a 
 moiety only, but that the plaintiff recover his term •, and he must take 
 out execution for no more than he has \ right to recover (z). 
 
 The judgment is either against the casual ejec:or, or against the te- 
 
 (a) Cro. Eliz. 186. (/-) Dyer, 47, a. I Lev. 334. (c) 1 T. R. 701, et ante. 
 
 00 3 Wils. 275. 1 H. El. 261. 6 T. R. 168. (*) 3 Wik 275. (/) Run. Eject. 235. 
 (g) 8 East, 357. (b) t Bur. 114. (») ibid. 326. 366. 
 
 7
 
 408 Of the Damages and Costs in [Chap. XIV. 
 
 nant, upon a verdict ; the former is generally before, the latter always 
 after an appearance (a). 
 
 The casual ejector can in no case confess a verdict (/>). 
 
 If judgment be regularly signed, but without loss of trial, it may be 
 set aside on payment of costs, and taking notice of trial (c). 
 
 When the landlord is admitted defendant instead of the tenant, the 
 judgment is entered against the casual ejector with a stay of execution 
 till further order : if the landlord be afterwards nonsuited for not con- 
 fessing lease, <Sc. or if a verdict be given against him upon the trial, 
 the plaintiff must move for leave to take out execution against the casual 
 ejector (d) j and the day of shewing cause against the motion is the 
 proper time for the landlord to make his stand against the plaintiff's 
 taking out execution and getting into possession. It has however been 
 held, that he may bring a writ of error, which would be a sufficient 
 reason against taking out execution (e\. 
 
 The plaintiff cannot have judgment against the casual ejector, till 
 common bail is filed. 
 
 "When the plaintiff is nonsuited at the trial for want of the defend- 
 ant's confessing lease, &c. he is not entitled to sign judgment against 
 the casual ejector, till the postea comes in on the day in bank (f). 
 
 Of the Damages. — The damages in ejectment are merely nominal, the 
 recovery of the term being the object of the action. 
 
 Where an action of ejectment and an action of assault and battery 
 were joined in the same writ, after verdict it was moved in arrest of 
 judgment ; because the battery was joined with the ejectment, and the 
 damages being entire, the plaintiff could not release the damages in the 
 battery, to take judgment, and the execution in ejectment. The reason 
 is, that where the damages are entire, it does not appear that the plain- 
 tiff recovered by any title in ejectment; and therefore it cannot be seen 
 by the Court, whether those two actions were not originally joined, in 
 order that the plaintiff might have a recovery in one to save his costs in 
 the ether. Cut where the damages are given severally, it appears that 
 the plaintiff had a title in both cases; and therefore if he release his 
 damages in battery, which was misjoined with the ejectment, there is 
 no reason why he should not take his judgment in ejectment : for though 
 the Court must judge the joinder of the action to be bad, where it ap- 
 pears to be a contrivance to save costs, which is the mischief of joining 
 different actions ; yet where there appears to be good cause in Loth 
 cases, the joinder of the action is cured by the release, for the plaintiff 
 should have judgment according to his right (g). 
 
 (a) Run, Eject. 402. (£) I Str. 551. (c) Run. Eject. 403. 
 
 (rf) a Bur. 757. (,) % Str. 1*41. (/) 2 T. R. 779- 
 
 (g) Run, Eject. 144.
 
 Sect. II.] the Action of Ejectment, §c. 409 
 
 Of the Costs. — Incident to the judgment are the costs, or expences of 
 the action, which are therefore, as next in order to be treated of. 
 
 If the tenant do not appear, and judgment be consequently entered 
 against the casual ejector, the plaintiff has no other remedy for his costs, 
 than by his action for the mesne profits ; in which they are recoverable 
 against the tenant, as consequential damages (a). 
 
 But if the tenant appear, and be made defendant, under the usual 
 terms of confessing lease, £sV. and afterwards at the trial, refuses to 
 make that confession, he is liable, upon the rule by which he was made 
 defendant, to the payment of costs ; which if not paid, an attachment 
 lies against him : and this is all the remedy which the plaintiff has for 
 his costs if he be nonsuited by the defendant not confessing lease, &c. 
 If the tenant appear, confess lease, is'c. and a verdict be given against 
 him upon the trial, the judgment is entered against the tenant; on 
 which judgment the plaintiff may take out execution, as in ordinary 
 cases : for this is not a case provided for by the rule (b). 
 
 Where a verdict is given for the defendant, or the plaintiff" be non- 
 suited for any ether cause than that of not confessing lease, &c. the 
 defendant must tax his costs on the postea, as in other actions ; and sue 
 out a capias ad satisfaciendum for the same against the plaintiff, which he 
 must shew, under seal, to the plaintiff's lessor, and at the same time 
 serve him with a copy of the consent rule •, then if the lessor being re- 
 quired, refused to pay the costs, the Court, on motion, will grant an 
 attachment against him (r). 
 
 Though the plaintiff in ejectment be but nominal, yet if he be not 
 found, or be not able to pay the costs, the attorney is liable, and may 
 be committed until he pay them, or produce a sufficient plaintiff (rfj. 
 
 So, if a stranger carry on a suit in another's name, who has title, 
 and yet is so poor that he cannot pay the costs : in case he fail, the 
 Court, on affidavit of the circumstances, will order the person who 
 carried on the suit to pay costs to the defendant (<?). 
 
 So, where baron and feme were lessors, and the baron died after en- 
 tering into the rule, the feme was notwithstanding held liable to the pay- 
 ment of costs ; because they were to be paid by the lessors of the plain- 
 tiff, and both of them were in the lease. 
 
 If the plaintiff has a verdict in ejectment, and costs are taxed, and 
 an attachment issues for non-payment of them, the defendant shall not 
 have an ejectment against the plaintiff, in the same Court, till he has 
 paid those costs : and the Courts consider an ejectment in another, in 
 the same light as a former ejectment in the same Court ; and will stay 
 proceedings in a new ejectment till the costs of the former be paid, as 
 
 {a) Run. Eject. 144. (I) Ibid. 415. (c) Ibid. 416. (i) 6 Mod. 309, 
 (<•) Run., Eject. 417,
 
 410 Of the Execution in [Chap. XIV. 
 
 well where the former ejectment was in another, as where it was in the 
 same Court. 
 
 Proceedings in ejectment were stayed by the Court of Common Pleas, 
 after a long delay, rhe day before trial, till the costs of a former eject- 
 ment in the King's Benc v = were paid (a). 
 
 So, proceedings were stayed in ;n ejectment by a fraudulent assignee 
 of an insolvent debtor, till the costs of former ejectments brought by 
 the debtor himself were paid (b). 
 
 So, proceedings were stayed even till the costs were paid of a former 
 ejectment, in which the lessor of the plaintiff never entered into the 
 consent rule (r). 
 
 Yet where a verdict in a former ejectment had been for the plaintiff", 
 who upon the defendant bringing the action against him, prayed for 
 costs before he should be compelled to plead to the new action, it was 
 denied, because the verdict being for him, he had no vexation : but if 
 it had been against him, or he had been nonsuited, he should not have 
 brought another action before the costs of the first had been paid, be- 
 cause it was a vexation to bring a new action (d). — No new ejectment, 
 however, can be brought by the defendant after a recovery against him, 
 till he has quitted the possession, or the tenant have attorned to the 
 plaintiff (e). 
 
 Where the lessor of the plaintiff was in custody under an attachment 
 for non-payment of costs in a former ejectment, and brought a new 
 ejectment upon the same demise, the Court refused to stay proceedings 
 therein, till the costs of the former should be paid (f). 
 
 In ejectment against several, the plaintiff has his election to pay costs 
 to which of the defendants he pleases (g). But if the defendants fail, 
 each of them is answerable for the whole costs (h). 
 
 By stat. 8^9 W. 3. c. 1 1, in ejectment against several, if any one 
 or more is acquitted by verdict, he shall recover his costs against the 
 plaintiff, unless the Judge shall certify in open Court that there was 
 good cause for making such person a defendant. 
 
 This being an action of trespass, if the judge before whom it is tried 
 shall certify under his hand on the back of the record, that the freehold 
 or title of the land came chiefly in question, though the damages are 
 under 40J. there shall be the full costs. This is enacted by stats. 43 
 Eliz. c. 6. 21 J. 1. c. 16. 22 & 23 C. 2. c. 9. s. 136. 
 
 Of the Execution.— Touching the execution of the judgment, as the 
 plaintiff in ejectment recovers only the possession of the property in 
 question, execution of course is of the possession only (/'). 
 
 The plaintiff having judgment to recover his term, may enter with- 
 
 (a) z Bl. R. 1158. (i) ibid. u8i. 00 Ibid - 9°4- . 00 4 Mod. 379. 
 
 («•) Salk. 2.58. Run. Eject. 420. (/) Ibid. (g) I Str. 516. 
 
 (*) Bull. N. P. 335. (0 Run. Eject. AH- 1 Bur. 90. 239,
 
 Sect. II.] the Action of Ejectment ; §c. 411 
 
 out suing cut a writ of execution, which is called an habere facias pos- 
 sessionem; for where the Ian! recovered is certain, the recoverer may 
 enter at his own peril, and the assistance of the sheriff is only to pre- 
 serve the pe^ce fa). 
 
 The usud and regular way however is to make out a writ of habere 
 facias possessionem ; which being engrossed, signed, and sealed, and a 
 pracip-- being made out for it, is carried to the office of the sheriff, who 
 m kes out a warrant thereon, and will put the lessor of the plaintiff in 
 possession (b) It has relation to the teste; therefore if tested the last 
 a,w of the preceding term, may be sued out though the lessor of the 
 plair.-iff be since dead c). 
 
 7'he plaintiff must take care not to take out execution for more than 
 he had Hpnt > recover: and in order that the sheriff may not be under 
 any diiucu'.ty in executing the writ of possession, the practice wow is 
 for the plai.itiff himself not merely to point out to the sheriff, that of 
 which he is to deliver him possession, in execution of the writ, but to 
 take possession ;.; Ms j> ' 1 of that only to which he has title; for should 
 he take more than he has recovered and shewn title to, the Court will, 
 in a summary v ay, set it right (d). 
 
 Therefore, where the plaintiff in ejectment, as tenant in common, 
 recovered possession of five-eighths of a cottage, with the appurte- 
 nances, and a writ of possession was executed by the sheriff, who 
 turned the tenant out of possession of the whole and locked up the door, 
 as appeared by affidavit Curia — This is wrong ; the writ ought to 
 have pursued the verdict. Let there be a rule upon the sheriff, and 
 the lessor of the plaintiff to restore the tenant to the possession of 
 three-eighth parts of the premises ; otherwise he would be forced to 
 bring another ejectment for the same (e). 
 
 If there are several messuages in possession of different tenants, the 
 sheriff must go to all their houses and turn them out : the delivery of 
 the possession of one tenement in the name of all, is not sufficient (f ). 
 The words of the writ being quod habere facias possessionem^ there 
 must be a full and actual possession given by the sheriff, and conse- 
 quently all power necessary for this end must be given him ; if there- 
 fore the recovery be of a house, the sheriff may justify breaking open 
 the door, if he be denied entrance by the tenant, because the writ can- 
 not be otherwise executed (g). 
 
 If the officer be disturbed in the execution of the writ, the Court 
 will, on affidavit of the circumstances, grant an attachment against the 
 party whether he be the defendant or a stranger, for a recent ouster is 
 a contempt ; and the process is not understood to be executed COmplete- 
 Ma Sell. Pratt. 203. (i) Ibid. (;) 4 Bur. 1970. (d) Run. Eject. 432. 
 r Bur. 366. Ibid. 629, 5 Bur. 2673, (0 3 Wills. 49. (/) a Sell. Pnct. 203. 
 z Roll. Abr. 886. { g ) 5 Co. 91. b.
 
 412 Of the Execution, %c. [Chap. XIV. 
 
 ly, till the sheriff and his officers are gone, and the plaintiff left in 
 quiet possession (a). 
 
 If therefore the sheriff turns out all persons he can find in the house, 
 and gives the plaintiff, as he thinks, quiet possession, and after the 
 sheriff is gone, some persons appear to be lurking in the house, that is 
 no good execution, and the plaintiff, it is said, shall have a new habere 
 facias possessionem (b). — The new writ cannot issue, until the return of 
 the first be expired (c). 
 
 An attachment was granted absolute in the first instance, against the 
 tenant in possession, on affidavit that he had been served with a rule of 
 Court made absolute for delivering up the possession, and had refused 
 so to do (d). 
 
 The law seems, however, to make a difference where, after posses- 
 sion given either on the habere facias, or by agreement of the parties, 
 the plaintiff is turned out of possession by the defendant, and where 
 by a stranger. When it is done by the defendant himself, the plaintiff 
 may have either a new habere facias, or an attachment, because the de- 
 fendant shall never, by his own act, keep the possession which the 
 plaintiff has recovered from him by due course of law. But where a 
 stranger turns the plaintiff out of possession, after execution fully exe- 
 cuted, the plaintiff is put to his new action ; or to an indictment for 
 the forcible entry, by which means the force will be punished. — The 
 reason is, that the title was never tried between the plaintiff and the 
 stranger, who possibly may claim the land by a title paramount to that 
 of the plaintiff, or he may come in under him ; and then the recovery 
 and execution in the former action ought not to hinder the stranger from 
 keeping that possession to which he may have a right. "Were the law 
 otherwise, the plaintiff might, by virtue of a new habere facias, turn 
 out even his own tenants who come in after the execution is exe- 
 cuted, whereas the possession was given him only against the de- 
 fendant in the action, and not against those who were not parties to 
 the suit (e). 
 
 If the execution go to the sheriff for twenty acres, he must give 
 twenty acres, according to the common estimation of the country where 
 the lands lie ( f). 
 
 As the plaintiff, however, is to shew the sheriff the premises to 
 which he has title and to take possession rightly at his peril, such a very 
 exact description is not necessary in this action, as in a pracipe. An 
 issue has been directed to try whether the sheriff had delivered posses- 
 sion properly, according to the recovery (g). 
 
 At this day, the practice is, for the plaintiff to give the sheriff scen- 
 ts) 6 Mod. 27. Salk. 322. (&) Leon. 145. (0 R"»- Eject. 43;. 
 (J) 2 Bl. R. 89a. (e) 1 Keb. 779. 785. (/) R«U. R. 4*c. 
 (g) 1 Ev.r. 366. 5 Bur. 2673.
 
 Sect. II.] Of the Writ of Error. 41 S 
 
 rity to indemnify him from the defendant, and then for the sheriff to 
 give execution of what the plaintiff demands (a). 
 
 A judgment irregularly obtained was set aside, and the possession 
 that had been given upon the execution ordered to be restored : but the 
 lessor of the plaintiff (who held the possession) absconding, the rule 
 became ineffectual ; whereupon it was moved en behalf of the late te- 
 nants, for a writ of restitution ; which the Court awarded accord- 
 ingly^). 
 
 If the plaintiff neglect to sue out his writ of possession for a year 
 and a day after judgment, he. must revive the judgment by scire facias, 
 as in other cases; else the Court will award a restitution quare erronict 
 emanavit : unless the stay of execution be by consent of f he parties for 
 the year, not for less time, com, sent, or the defendant brings error and 
 is afterwards nonsuited (c). 
 
 But if the delay be by injunction of the Court of Chancery there 
 must be a scire facias ; for an injunction not being a matter of record, a 
 Court of law will not take notice of it ; unless the party has taken out 
 execution within the year, and continued it down by vicecomes non misit 
 breve, which may be done without a breach ,d). 
 
 If the plaintiff die within a year and a day, his executors cannot take 
 out execution without a scire facias ; for they are not parties to the 
 judgment : though if execution has been regularly sued out in the life- 
 time of the testator, the sheriff may execute it after his deat-h ; because 
 the authority is from the Court, and not from the party (e). 
 
 If after judgment and before execution, the defendant in ejectment 
 dies, and a scire facias goes, it must be against the terre-tenants of the 
 land (and the heir mav cor.ie in as terre-tenant), and not against the ex- 
 ecutor, without naming him terre tenant (f)- 
 
 Where the landlord is admitted to defend on the tenant's non-appear- 
 ance, and judgment is thereupon signed against the casual ejector, with 
 a stay of execution tili further order, the lessor of the plaintiff having 
 succeeded must apply to the Court for leave to take out execution; and 
 in such case, if a writ of error be brought by the landlord, it may be 
 shewn for cause, and will be a sufficient reason, against taking out ex- 
 ecution : but if the landlord omit the opportunity of shewing it for 
 cause, the execution is regular, and cannot be set aside (g). 
 
 Of the Writ of Error. 
 
 By the consent rule, as has been before observed, the defendant un- 
 dertakes to appear and receive a declaration : the necessity, therefore, of 
 
 (a) Run. Eject. 454. (£) 2 Sell. Pract. 204. (c) 2 Ld. Raym. 806. 
 
 Salk. 258. s. c. 6 Mod. 233. 2 Sell. Pract. 204. {J) 1 Sir 301. Salk. 322. 6 Mod. 28?, 
 
 (e) Run. Eject. 429. (/) % Sell. Pract. 204. Cro. Car. 295. 312. 
 (g) Tidd's Pract. 909.
 
 414 Of the Writ of Error. [Chap. XIV. 
 
 an original writ, if the proceedings av - in the Common Pleas, is su- 
 perseded; because as the renant is to appear and receive a declaration, 
 he cannot take advantage of the want of an original, unless in a writ of 
 error but when a writ „f error is brought, the plaintiff must file an 
 original, unless it be after verdict, when it is helped by stat. 38 Eliz. 
 c. 14. (a). 
 
 As in the Common Pleas there is no need of an original (which also 
 is the case in the King's Bench when rhe proceedings are by original), 
 so in the King's Bench when the proceedings are by bill, there is no 
 necessity for a latitat, or bill of ejectment: but the party must file bail 
 before he can proceed. He must also file a bill of ejectment besides the 
 plea roll, in case a writ of error be brought, before errors are assigned. 
 The reason is, that the Court has no authority to proceed in ejectment 
 by bill, unless the defendant be in custody ; therefore, by the rule, bail 
 is ordered to be filed, that the Court may have authority to proceed (£). 
 
 The casual ejector cannot bring error, being a mere nominal person ; 
 that writ therefore can only be brought after the defendant has ap- 
 peared, and confessed lease, entry, and ouster (c). 
 
 So, if the landlord be permitted to defend, a writ of error cannot is- 
 sue in the name of the casual ejector (<i). 
 
 But on a writ of error from an inferior Court, in the name of the 
 casual ejector, the Court will not order a non pros, to be entered, though 
 his release of errors be shewn ; because inferior Courts are not com- 
 petent to proceed, as before observed, by a rule confessing lease, 
 &c. (e). 
 
 So, )f <m infant be tenant in possession, and judgment be against the 
 casual ejector ; because no laches is imputable to an infant {/) 
 
 The plaintiff having brought a writ of error in Parliament, the 
 Court obliged him to enter into a rule not to commit waste or de- 
 struction during the pendency of the writ. The defendant did not op- 
 pose it , and also justified ^to 400/.) (g). 
 
 By stat. i6c5 17 C. 2. c. 8. s. 7. it is enacted, That no execution 
 shall be stayed by writ of error upon any judgment after verdict in 
 ejectment, unless the plaintiff in error shall become bound in a reason- 
 able sum to pay the plaintiff in ejectment all such costs, damages, and 
 sums of money, as shall be awarded to such plaintiff upon judgment 
 being affirmed, or on a nonsuit, or discontinuance had ; and in case of 
 affirmance, discontinuance, or nonsuit, the Court nicy issue a writ to 
 enquire as well of the mesne profits, as of the damages by any waste 
 committed after the first judgment, and are therefore to give judgment, 
 and award execution for the same, and also for costs of suit. 
 
 0) Run. Eject. 204. (i) Ibid. (c) a Sell. Pract. 7,0$- a Bur. 757. 
 
 (d) Ibid. (0 Run. Eject. 421. (/) Ibid. <*) 3 Bur. -18*3*
 
 Sect. II.] Of the Action of Ejectment^ <§-c, 415 
 
 This " reasonable sum" is generally double the rent. 
 
 Under this statute the defendant is intitled by law to his writ of er- 
 ror, if he offers to become bound as the statute directs. 
 
 Therefore, where the lessor of the plaintiff swore that the defendant 
 was insolvent, and also that he, the lessor, had a mortgage upon the 
 land to more than it was worth, yet the Court held that the defendant 
 was entitled to his writ of error, he becoming bound in double the 
 rent (a). 
 
 Nothing shall be assigned for error that will make it necessary to go 
 again into the title of the premises (£). 
 
 Of the Action of Ejectment where the Possessioii is va- 
 cant : — Where a Corporation is Lessor of the Plaintiff : 
 — and JVhere the Action is commenced in an inferior 
 Court. 
 
 As the old method of proceeding in this action, by sealing a lease 
 on the premises, must still be resorted to in these cases, we have 
 thought proper to notice them as a detached article. 
 
 If the premises, the possession of which the plaintiff seeks to 
 recover, be , npvv, no declaration of course can be delivered or affidavit 
 made of the delivery oi it, and consequently the Court cannot proceed 
 to give judgment against the casual ejector (c). — In such case there- 
 fore the old way of proceeding must be still pursued, except in the 
 single instance of landlord and tenant, provided for by stat. 4 G. 2. of 
 which hereafter (d). 
 
 This is done by entering on the premises, and actually sealing a lease 
 thereon, either in person or by attorney. 
 
 If the former method is preferred, the proceeding is thus: 
 
 A. (the person claiming title,) must go upon the land before the 
 essoin day of the term, and there seal and deliver a lease to B. (any 
 friend of his, as tenant;) and at the same time deliver him possession. 
 This being done, get C (any other friend) to go upon the premises, 
 and turn out B. the tenant, by thr ring him off the premises, and 
 whilst he continues there serve him with a declaration in ejectment, in 
 which make B. the tenant plaintiff, A. (the person claiming title) the 
 lessor, and C. (the actual ejector) the defendant, and declare on the 
 demise in the lease and subscribe a notice to appear (e). 
 
 The declaration is the same as usual, only the real persons are made 
 parties, instead of fictitious names ( f . 
 
 In order to get judgment in the Court of IL ■?'■. Bench, an affidavit 
 
 00 4 Bur. ajoi. (i) Hob. 5. (.-) Run. Eject. 148. (*') 7, Sell. Pract. 313. 
 
 (e) Ibid. (/) Ibid, 314.
 
 416 Of the Action of Ejectment [Chap. XIV. 
 
 must be made of sealing the lease, and of the ouster by defendant, 
 and of all the facts. This is indorsed to move for judgment against 
 the casual ejector, and unless defendant appear and enter into the 
 common rule, judgment may be signed as on a common ejectment. — 
 In the Common Pleas, there is no need of any affidavit, nor any motion 
 for judgment, but on the first day of term, give a rule to plead as in 
 common actions, and if no appearance and plea, at the expiration of 
 the rule, sign judgment (a). 
 
 If the landlord, or person claiming title, does not wish to enter 
 himself and seal the lease, he may do it by attorney, and the pro- 
 ceedings are just the same; the attorney acting as the principal 
 landlord [b\ 
 
 To warrant the above proceedings, the premises must be vacant ; 
 they must be wholly deserted by the tenant, and the lessor of the 
 plaintiff not be able to find out where the tenant is to serve him with 
 an ejectment. 
 
 Therefore, where the lessee of a public-house took another and 
 removed his goods and family, but left beer in the cellar ; rent being 
 in arrear, the landlord sealed a lease as on a vacant possession, 
 delivered an ejectment, and signed judgment, it was set aside, the 
 lessee still continuing in possession : and a case was mentioned, where 
 leaving hay in a barn at He?idon, was held to be keeping possession. 
 It further appeared in this case, that the attorney for the plaintiff knew 
 whither the lessee removed, and might have served him personally, 
 which could not be done upon the premises. — So, in the case of a 
 renting ground, to which there is no house or barn, if it be known 
 where the tenant lives, he must be served (c). 
 
 In cases of a vacant possession, no person claiming title will be let 
 in by the Courts to defend, but he that can first seal a lease on the 
 premises must obtain possession. The person therefore claiming 
 title must resort to his new ejectment (d). 
 
 But it is said that any person claiming title to the premises, and 
 who is usually admitted by the Court, may with leave appear and enter 
 into the common rule upon motion made for that purpose (if). But 
 quare now ? 
 
 Ejectment by a Corporati:?i, — When a corporation is lessor of the 
 plaintiff, they should regularly execute a letter of attorney authorizing 
 some person to enter and seal a lease on the land : and a corporation 
 cannot make an attorney or bailiff but by deed, nor appear but by 
 making a proper person their attorney by deed. 
 
 As to whether the lease on which they declare need be by deed, 
 it seems immaterial: for where the declaration stated the lease to have 
 
 (*) 2 -c.l. Pract. 214. (L) Ibid. 0) % Str. 1064. (/) Bull, N. P. <)$. 
 
 (r) Imp. Pract. K. 3. 537. 2 Sell. Pract. 21;.
 
 Sect. II. J where the Possession is vacant. 417 
 
 been made by the plaintiff under the common seal of the corporation, 
 it was objected that the lease ought to be proved: but the objection was 
 over-ruled by Lord Kenyan, who observed that, by common rule and 
 appearance, the lease was admitted to be as stated («). 
 
 If a corporation be aggregate of many, they may set forth the demise 
 in the declaration without mentioning the Christian names of those who 
 compose it ; but if the corporation be sole, the name of baptism must 
 be inserted; as if the demise be by a bishop (£). 
 
 Proceedings in an inferior Court. — Where the proceedings are in an 
 inferior Court, the plaintiff must proceed by actually sealing a lease on 
 the premises, and the defendant tries the title in the name of the casual 
 ejector, to save expence : for inferior Courts are not competent to 
 make rules to confess lease, entry and ouster, and if they were, have 
 no power to enforce obedience to them. It seems therefore, that if 
 the defendant in an inferior Court enter into a rule to confess lease, 
 &c. and the cause be removed by habeas corpus, and the Judge of the 
 inferior Court grant an attachment against the defendant for disobedience 
 to the rule, the superior Court will grant an attachment against the 
 Judge for exceeding his authority and obstructing the course of the 
 superior Court (c). 
 
 If an habeas corpus be brought to remove a cause in ejectment out of 
 an inferior Court, the lands lying within their jurisdiction, and the 
 lessor of the plaintiff seal a lease on the premises, the Courts above 
 will grant a procedendo ; because the title to the land is local, and there- 
 fore properly within the jurisdiction of the Court below, where, if it 
 proceed regularly, it will not be prohibited: but if the lessor has 
 not sealed a lease on the premises, the Courts above will not grant a 
 procedendo (d). 
 
 So, if an ejectment be commenced in an inferior Court, and an 
 habeas corpus be brought to remove it, and the plaintiff in ejectment 
 declares against the casual ejector : there may be a rule to confess lease, 
 &c. as if he had originally declared in the Court above, and the Court 
 will not grant a procedendo ..e}. 
 
 If the lands lie partly within the cinque ports, and partly without, 
 the defendant cannot plead the jurisdiction of the cinque ports, above; 
 for though the land be local, yet the demise is transitory, and triable 
 any where: and therefore though the plaintiff may lay his action for 
 that which lies within an inferior jurisdiction in the Court below, if 
 he take proper measures for the purpose, yet if he will proceed in 
 a superior Court, as the demise is transitory, the defendant cannot 
 ■stop his proceeding, because those Courts have competent jurisdic- 
 tion (/). 
 
 Ui) Run. Eject. 150. (0) Ibid. (0 Run. F.jsct. IJI, I J. Z , (d) Ibid. I'r- 
 '••) Ibid. (f) Ibid. i?2 
 
 Ee
 
 418 Of the Action for Mesne Profits. [Chap. XIV. 
 
 SrcTiox III. Of the Action for Mesne Profits. 
 
 An ejectment being a feigned action, brought against a nominal 
 defendant, and generally on a supposed ouster, is not a proper 
 action for mesne profits, the action for which is wholly dependent 
 upon facts ; being brought against the real tenant, for profits which he 
 has actually received. In the one case, therefore, the damages are 
 merely nominal; in the other, they are such as the plaintiff has sus- 
 tained by a real injury; and the fiction in the former, does not, in 
 any manner, affect the latter (a). The verdict in ejectment having, in 
 fact, established the right of the plaintiff from the time that his title 
 accrued, the defendant is a trespasser, and the plaintiff is entitled to 
 recover from him damages for his unjust possession, equal to the 
 value of the lands during that time ; though this point is not settled, 
 but the quantum depends upon circumstances (£). 
 
 This action, therefore, results from the recovery in ejectment: it is 
 an action of trespass vi ct armis, brought by the lessor of the plaintiff, 
 in his own name, cr in the name of the nominal lessee (for it may be 
 brought in that of either) against the tenant in possession, to recover 
 the value of profits unjustly received by the latter, in consequence of 
 the ouster complained of in the ejectment (c) — It is usually brought 
 by the lessor of the plaintiff in his own name, and in that case, on 
 proving a good title in himself and an actual ouster and perception of 
 profits by the defendant antecedent to the demise and ouster in eject- 
 ment, he will recover damages for those profits: they are seldom, 
 however, an object of litigation, as the demise and ouster are generally 
 laid soon after the time when the lessor's title accrued. 
 
 But the plaintiff is not bound to claim the mesne profits, only from 
 the time of the demise •, for if he prove his title to have accrued before 
 that time, and proves the defendant to have been longer in possession, 
 he shall recover antecedent profits (d). 
 
 In such case, however, the defendant will be at liberty to con- 
 trovert the title, which he cannot do in case the plaintiff do not go for 
 more time than is contained in the demise; because being tenant in 
 possession, he must have been served with the declaration, and there- 
 fore the record is against him conclusive evidence of the title; but 
 against a precedent occupier the record is no evidence, and therefore 
 against such an one it is necessary for the plaintiff to prove his title, 
 and also to prove an actual entry, for trespass being a possessory 
 action, cannot be maintained without it (e). 
 
 {a) Run. Eject 438. \b) 3 BI. Com. %o$. (<) Run. Ej-ct. 438. 
 
 {J) Bull. N. P. 87. (t) Ibid.
 
 Sect. III.] Of the Action for Mesne Profits, 419 
 
 Yet as to actual entry, it may admit of doubt, what proof is suffi- 
 cient (a), — It has been said that the plaintiff is entitled to recover the 
 mesne profits only from the time he can prove himself to have been in 
 possession, and that therefore if a man make his will and die, the 
 devisee will not be entitled to the profits till he has made an actual 
 entry: for that none can have an action for mesne profits unless in 
 case of actual entry and possession (Z>). Others have holden (V, that 
 when once he has made an actual entry, that will have relation to the 
 time his title accrued, so as to entitle him to recover the mesne profits 
 from that time; and they sny, that if the law were not so, the Courts 
 would never have suffered plaintiffs in ejectments to lay their demises 
 back in the manner they now do, and by that means entitle themselves 
 to recover profits, to which they would not otherwise be entitled: 
 beside, the Court will intend every thing possible against the de- 
 fendant [d). 
 
 Supposing, however, that a subsequent entry has relation to the 
 time that the plaintiff's title accrued, yet certainly the defendant may plead 
 the statute of limitations, and by that means protect himself from all 
 but the last six years (e\ 
 
 If one tenant in common recover in ejectment against the other, he 
 may maintain trespass for the mesne profits (f). 
 
 Any one in possession of the premises after a recovery of them by 
 action of ejectment is a trespasser and as such liable to damages, and 
 he cannot cover himself under the licence of the defendant in eject- 
 ment, for no man can license another to do an illegal act. In this 
 ease, Se'lon, Serj. moved for a new trial. It appeared that the plaintiff 
 by an action of ejectment had evicted one Mitchel (who had been a 
 tenant of his under an agreement for a lease), and had since brought 
 an action against the present defendant, in which he had declared first 
 in trespass quare clausum /regit, and in another count for money had 
 and received, being in fact for the mesne profits. Selhn for the present 
 defendant contended, that his client being in possession merely as the 
 agent of Mitchel, who was in prison, was not liable to any action of 
 trespass nor for the mesne profits, Mitchel himself being the only party 
 to be looked to. But Lord Kenym observed, that the plaintiff having 
 recovered in ejectment against his tenant, any other party in possession 
 was liable to be deemed a trespasser, and that, in action of trespass, 
 damages ought to be given, though not amounting quit? to the mesne 
 profits. Rule refused (g). 
 
 If the action be brought in the name of the nominal plaintiff, the 
 Court, on application, will stay the suit till security be given for an- 
 swering the costs; but will not permit such a plaintiff to release the 
 
 0) Bull. 3\ T . P, 87. (b) 1 Ves. 34V- 00 5 Mod. 3^4- {'0 3 wil *- *"■ 0) Bull. N. P. 8?. 
 '/) 3 K'ils. iH, (g) Girdlestone v. Porter, K. B. M. T. 39 G. 3. MSS. 
 
 E e 2
 
 420 Of the Action for Mesne Profits, [Chap. XIV. 
 
 action; his release therefore has been set aside as a contempt of Court: 
 and there is no distinction between a judgment in ejectment upon a 
 yerdict, or by default ; for in the one case, the right of the plaintiff 
 is tried and determined against the defendant, and in the other it is 
 confessed (a). 
 
 This action may be brought pending a writ of error in ejectment 
 and the plaintiff may proceed to ascertain his damages, and sign his 
 judgment ; but the Court will stay execution till the writ of error be 
 determined (I?). 
 
 If the defendant bring a writ of error on the verdict against him 
 in ejectment, and enter into a recognizance pursuant to the statute 
 16 2c 17 C. 2. c. 8. to pay costs, the plaintiff on judgment in his 
 favour on the writ of error, need not bring a scire facias or action of 
 debt on the recognizance, but may sue out an elegit or writ of enquiry, 
 to recover the mesne profits since the first judgment in ejectment (c). 
 
 The defendant in this action may be held to bail. 
 
 The declaration in this action for mesne profits must expressly state 
 the several parcels of land, &c. from which the profits arose, or the 
 defendant may plead the common bar (d). 
 
 The defects in a declaration in an action for mesne profits, in not 
 stating any time when the defendant broke and entered the messuage, &c. 
 and ejected the plaintiff from the occupation of it; and in stating only 
 that the defendant kept and continued the plaintiff so ejected for a long 
 space of time, without stating how long, are cured by the operation of 
 the stat. 4. Ann. c. 16. after judgment by default, and a writ of in- 
 quiry of damages executed, so that no objection can be taken in arrest 
 of final judgment for such defect in form (<?). 
 
 In trespass for the mesne profits against the tenant in possession 
 after a recovery in ejectment by default against the casual ejector, the 
 tenant cannot pay the money into Court, for the action is for a tortious 
 occupation from the time the tenant had notice of the title of the 
 lessor of the plaintiff (/). 
 
 In trespass against the tenant in possession for mesne profits, either 
 by the lessor or the nominal plaintiff, after recovery in ejectment the 
 plaintiff need not prove a title; but it is sufficient to produce the judg- 
 ment in ejectment and the writ of possession executed, and to prove 
 the value of the profits, and thereupon he shall recover from the time 
 of the demise laid in the declaration (g). 
 
 But if the judgment has been against the casual ejector, and no writ 
 of possession executed, the defendant in possession may controvert the 
 title, if he has not been made a defendant in the ejectment and had a 
 
 (-■) Run. Eject. 439. Bull. N. P. 89. (£) 2 Sell. Pract. zzC. (. ) Ibid. 
 
 (d) aCromp. Pract. 223. (/) 13 East, 407. (/) 1 Wil?. 115. 
 
 {g) Bull, N. P. 87. 3 Will. lai. x T. R. 387.
 
 Sect. III.] Of the Ac twit for Mesne Profits. 421 
 
 verdict against him, and therefore the recovery in ejectment is not 
 against him conclusive evidence (a). 
 
 In an action for mesne profits for one year, the declaration contained 
 other counts for destroying fences, to which a justification was pleaded, 
 and upon a new assignment, the general issue. An examined copy of 
 the judgment in ejectment was proved. The trespass in respect to the 
 fences was also proved, but the Judge (Runtiingtou, Sent.) being of 
 opinion, that as it was committed while the defendant was in possession 
 as tenant, the action was misconceived for that part, the jury by his di- 
 rection gave no damages in respect thereof. — A rule for a new trial was 
 obtained on the ground of the trespass having been committed after the 
 defendant had ceased to be tenant to the plaintiff and after the recovery 
 in ejectment ; but that not appearing to be the fact, from the report as 
 it was read from the Judge's note, the rule for a new trial was dis- 
 charged (I?). 
 
 A recovery in ejectment against the wife cannot be given in evidence 
 against the husband and wife for mesne profits : for in such case there 
 is no evidence of the trespass but the judgment in ejectment ; and the 
 wife's confession of a trespass committed by her cannot be given in 
 evidence to affect the husband in an action in which he is liable for the 
 damages and costs (<:). 
 
 Bankruptcy is no plea in bar to an action for mesne profits ; for the 
 damages occasioned by the tort are uncertain (d). 
 
 Where, after a recovery in ejectment and before an action of trespass 
 for mesne profits, the defendant became a bankrupt, and the jury did 
 not include the costs of the ejectment in their verdict in executing a 
 writ of enquiry in the action for mesne profits, the Court refused to set 
 aside the inquisition, because the plaintiff might have proved the costs 
 as a debt under the defendant's commission of bankrupt (^). 
 
 Touching the quantum of damages given by the jury in this action, 
 they are not to be bound by the amount of the rent, but may give extra 
 damages : indeed four times the value of the mesne profits have been 
 known to be given in this sort of action of trespass {/) : and after 
 judgment, by default, the costs in ejectment being recoverable are usu- 
 ally declared for as damages in this action for mesne profits (g). 
 
 The plaintiff can recover no farther costs in this action than were 
 taxed in the ejectment, if it were regularly defended: but it is other- 
 wise if judgment was against the casual ejector [h). 
 
 (a) 2 Str. 960. (i) M. T. 41 G. 3. TVs MSS. (c) 7 T. R. 112. 
 
 (</) Doug. 584. (e) 2 T. R. 261. (/) 3 Wils. iai. 
 
 it) Bull. N. P. 88, ifi) 1 Esp. R. 358.
 
 4-22 Of a second Action of Ejectment, [Chap. XIV 
 
 Section IV. Of a second Action of Ejectment. 
 
 A judgment in ejectment, it may be remembered, is a mere reco- 
 very of tb.c possession without prejudice to the right. It, therefore, is 
 not final between the parties so as to protect cither the defendant or 
 plaintiff (if he succeeds) from any further suit ; for the same plaintiff, 
 it he be nonsuited, or have a verdict against him, may bring another 
 ejectment against the same defendant, or if he succeeds in the action 
 and gets possession, he is still liable to an ejectment from the defendant 
 in the former action fa). 
 
 This in one respect may be deemed an' advantage, because the par- 
 ties are not concluded by one trial, in ca c e the real merits (from arrhlenr, 
 partiality, want of evidence, which might be afterwards supplied, or 
 the like) happened not to have been fairly tiled between them: but in 
 another respect, much mischief may result from it ; as the spirit of li- 
 tigation is thereby kept alive \b). 
 
 The reason v. hv an action of ejectment is nat or cannot be final 
 seems to be this : Th»f it is impossible, from the structure of the re- 
 cord in this action; to pie. d a former in bar of another ejectment 
 brought; oecause, I. The plaintiff and defendant are nominal and exist 
 in most cases on record only, and consequently may be changed in a 
 new action; but the identity both of plaintiff and defendant must be 
 averred in pleading a former action in bar (c). 2. The term demised 
 may be .aid many dirferent ways. It has sometimes, indeed, been at- 
 tempted in Chancery, after three or four ejectments, by a bi'l of peace 
 to establish the prevailing party's title, yet it has always been denied, 
 for every termor may have an ejectment, and every ejectment supposes 
 a new demise, and the costs in ejectment are a recommence for the trou- 
 ble and expence to which the possessor is put. — But where the suit be- 
 gins in Chancery for relief touching pretended incumbrances on the 
 title of lands, and that Court has ordered the defendant to pursue an 
 ejectment at law, where after one or two ejectments tried, and the 
 right settled to the satisfaction of the Court, the Court has ordered a 
 perpetual injunction against the defendant, because there the suit is first 
 attached in that Court, and never began at law (d) ; and such prece- 
 dent incumbrances appearing to be fraudulent, and inequitable against 
 the possession, it is within the compass of the Court to relieve against 
 it (r). 
 
 As the costs of the ejectment are deemed the recompence as above 
 stated (though in truth but a poor one) the Court will not sudor either 
 
 (a) 2 Sell. Pract. 23c. (■') Ibid. (.-) 4 Euncmus 189. 
 
 (d) 2 bell. Pract. 23c. r ") I Str. 404,
 
 Sect. IV.] Of a second Action of Ejectment. 4i23 
 
 the plaintiff to bring a new ejectment or the defendant to bring the 
 ejectment against the successful plaintiff, until the coats of the former 
 action are paid. — The Courts now considd a former ejectment in ano- 
 ther Court, as one in the arae Court, and will stay proceedings in a se- 
 cond till the costs cf :ac former are paid fa). 
 
 So, though in such former ejectment the lessor of the plaintiff never 
 entered into the consent rule: and where a rule for a new trial was ob- 
 tained on the ground of the plaintiff having been nonsuited by reason 
 of his inability to prove that the defendant had entered into the common 
 rule to defend as landlord, the Court said, that as there had been a 
 slip in the plaintiff not being able to prove the rule under which the 
 defendant was let in to defend, though no blame was imputable to him 
 as the objection could not be foreseen, yet the new trial must be on the 
 common terms of payment of costs b). — So, when an ejectment was 
 brought by a fraudulent assignee of an insolvent debtor, the former 
 lessor being plaintiff. — So, proceeding was stayed in error and a second 
 ejectment, the plaintiff not being able to shew that the writ of error 
 was brought with any ether view than to delay payment of costs (e). 
 
 The remedy to enforce the payment of costs, after verdict is by at- 
 tachment. — But where the lessor of the plaintiff has been taken into 
 custody upon an attachment for costs, which is in the nature of a capias 
 ad satisfaciendum, there is no reason to grant the rule to stay pro- 
 ceedings in another action brought by the same lessor on the same de- 
 mise (d). 
 
 So, where before trial a mistake is discovered, so as to render it ne- 
 cessary to serve a new ejectment, the Court will no: stay proceedings 
 till the costs of the first are paid ; unless the party has been vexatious, 
 or great exnence lias been incurred. 
 
 But if the lessor of the plaintiff be not known, the Court will order 
 notice to be given where he may be found. — So, if he abandons hid 
 ejectment in one Court and brings a new action in the other (e) 
 
 Proceedings in a second ejectment were stayed till the special verdict 
 in the former was determined (f). 
 
 When the plaintiff succeeds in an ejectment, the defendant cannot 
 bring a new ejectment against him, until he has delivered up posses- 
 sion, or the tenants in possession have attorned : and, it should seem, 
 till he has also paid the costs of the former action (g). 
 
 The Court will not give the plaintiff leave to discontinue after a spe- 
 cial verdict has been had, in order to adduce fresh proof in contradic- 
 tion to the verdict (h\ 
 
 (a) a Sell.Pract. 231. (5) 2 Bl. R. 904. Doe et dem. Shut; v. Dyke, AI. I', 
 
 4CG. 3.K. B. T.'sMSS. (0 Ibid. 1180. 1 Str. 554. 
 
 (J) a Sell. Pract. 432. (?) 2 Str. 681. 1099. 1121. 1T.R.491. 
 
 C/)»Str. no*. (g) % Salk. 2j8, 9. (i) » Bl. R. 815.
 
 424 Of the Action of Eject mc At upon [Chap. XIV. 
 
 Section V. Of the Action of Ejectment upon the Statute 
 4 G. 2. c. 28. s. 2. 
 
 By the common law an actual entry, by the person claiming title to 
 lands and tenements, was necessary to be made in order to support an 
 action of ejectment ; but in the case of a lease, the landlord could not 
 enter and take the actual possession until the lease was expired : it 
 therefore became usual to insert a proviso that in case the rent of the 
 demised premises was behind and unpaid at a certain time, the lessor 
 should have a right to re-enter. In parol demises, however, from year 
 to year, the landlord could not have the benefit of such a proviso ; and 
 when the right of re-entry subsisted, great inconvenience frequently 
 happened to lessors or landlords in cases of re-entry for non-payment of 
 rent j by reason of the many niceties that attended such re-entries at 
 common law, and even when a legal re-entry was made, the landlord 
 er lessor was put to the expence and delay of recovering in ejectment 
 before he could obtain the actual possession of the demised premises -(a). 
 — It is therefore enacted, 
 
 By the 4th G. 2. c. 28. s. 2. " That in all cases between land- 
 lord and tenant, as often as it shall happen that one half year's rent 
 shall be in arrear, and the landlord or lessor to whom the same is due, 
 hath right by law to re-enter for the non-payment thereof ; such land- 
 lord or lessor shall and may, without any formal demand or re-entry, 
 serve a declaration in ejectment for the recovery of the demised pre- 
 mises ; or in case the same cannot be legally served, or no tenant be in 
 actual possession of the premises, may then affix the same upon the 
 door of any demised messuage ; or in case such ejectment shall not be 
 for the recovery of any messuage, then upon some notorious place of 
 the lands, tenements, or hereditaments, comprised in such declaration 
 in ejectment, and such affixing shall be deemed legal service thereof ; 
 which service or affixing such declaration in ejectment shall stand in the 
 place and stead of a demand and re-entry; and in case of judgment 
 against the casual ejector, or nonsuit, for not confessing a lease, entry, 
 and ouster, it shall be made appear to the Court, where the said suit is 
 depending, by affidavit, or be proved upon the trial, in case the de- 
 fendant appears, that half a year's rent was due before the said declara- 
 tion was served ; and that no sufficient distress was to be found on the 
 demised premises countervailing the arrears then due, and that the lessor 
 or lessors in ejectment had power to re-enter, in every such case, the 
 lessor or lessors in ejectment shall recover judgment and execution in 
 •he same manner as if the rent in arrear had been legally demanded and 
 
 (u) Paul's Land. kc Lawy. 149.
 
 Sect. V.] the Statute 4 G. 2. c. 28. s. 2. 425 
 
 a re-entry made : and In case the lessee or lessees, his, her, or their as- 
 signee or assignees, or other person or persons claiming or deriving 
 under the said lease, shall permit and suffer judgment to be had and re- 
 covered on such ejectment and execution to be executed thereon with- 
 out paying the rent and arrears, together with full costs, and without 
 filing any bill or bills for relief in equity within six calendar months 
 after such execution executed ; then such lessee, &c. and all others 
 claiming and deriving under the said lease, shall be barred or foreclosed 
 from all relief in law or equity, other than by writ of error for reversal 
 of such judgment in case the same shall be erroneous ; and the said 
 landlord and lessor shall from thenceforth hold the said demised pre- 
 mises discharged from such lease : and if on such ejectment, verdict 
 shall pass for the defendant, or the plaintiff shall be nonsuited therein, 
 except for the defendant's not confessing, Ssfc. then such defendant shall 
 recover his, her, or their full costs." 
 
 Proviso as to Mortgagees. — " Provided always, that nothing herein 
 contained shall extend to bar the right of any mortgagee or mortga- 
 gees of such lease, or any part thereof, who shall not be in possession, 
 so as such mortgagee or mortgagees, within six calendar months after 
 such judgment obtained and execution executed, pay all rent in arrear, 
 and all costs and damages sustained by such lessor, or persons, entitled 
 to the remainder or reversion as aforesaid, and perform all the covenants 
 and agreements which on the part and behalf of the first lessee or les- 
 sees, ought to be performed." 
 
 Of Proceedings in Equity. — By sect. 3. "In case the said lessee or 
 lessees, his, her, or their assignee or assignees, or other person, claim- 
 ing any right, title, or interest, in law or equity, of, in, or to the said 
 lease, shall, within the time aforesaid, file one or more bill or bills, for 
 relief in any Court of equity, such person or persons shall not have or 
 continue any injunction against the proceedings at law on such eject- 
 ment, unless he, she, or they within forty days next after a full and 
 perfect answer shall be filed by the lessor or lessors of the plaintiff in 
 such ejectment, bring into Court, and lodge with the proper officer, 
 such sum of money, as the lessor or lessors of the plaintiff in the said 
 ejectment shall, in their answers, swear to be due and in arrear, over 
 and above all just allowances, and also the costs taxed in the said 
 suit ; there to remain till the hearing, or to be paid out to the lessor or 
 landlord, on good security, subject to the decree of the Court : and in 
 case such bill or bills shall be filed within the time aforesaid, and after 
 execution is executed, the lessor or lessors of the plaintiff shall be ac- 
 countable only for so much, and no more, as he, she, or they shall 
 really and bond fide t without fraud, deceit, or wilful neglect, make of 
 the demised premises, from the time of their entering into the actual 
 possession thereof; and if what shall be so made by the lessor or lessors
 
 426 Of the Action of Ejectment upon [Chap. XIV. 
 
 of the plaintiff, happen to be less than the rent reserved on the said 
 lease, then the said lessee or lessees, his, her, or their assignee or as- 
 signees, before he, she, or they shall be restored to his, her, or their 
 possession or possessions, shall pay such lessor or lessors, landlord or 
 landlords, what the money so by them made fell short of the reserved 
 rent, for the time such lessor or lessors of the plaintiff, landlord or 
 landlords, held the said lands." 
 
 Sect. 4. " Provided that if the tenant or tenants, his, her, or their 
 assignee or assignees, shall at any time before the trial in such eject- 
 ment, pay or tender to the lessor or landlord, his executors or admini 
 strators, or his, her, or their attorney in that cause, or pay into the 
 Court where the same cause is depending, ali the rent and arrears, to- 
 gether with the costs: then ail further proceedings in the said ejectment 
 shall cease and be discontinued : and if such lessee, CsV. or their exe- 
 cutors, administrator, or assigns, shall, upon such bill filed, as aforesaid, 
 be relieved in equity, he, she, and they shall Lave, hold, and enjoy 
 the demised lands according to the lease thereof made, without any new 
 lease to be thereof made to him, her, or them." 
 
 Intent of the Statute. — The statute relates to ejectment for nonpay- 
 ment of rent, only where the landlord has a right to re-enter. — The 
 true end and professed intention of the Act of Parliament is to take cil* 
 from the landlord the inconvenience of his continuing always liable to 
 an uncertainty of possession from its remaining in the power of the 
 tenant to offer him a compensation at any time, in order to found an 
 application for relief in equity; and to limit and confine the tenant to 
 six calendar months after execution executed for his doing this : or else 
 that the land! 3rd should from thenceforth hold the demised premises 
 discharged from the lease {a). 
 
 Courts of lav/ always lean against forfeitures, as Courts of equity re- 
 lieve against them : therefore, whenever a landlord means to take ad- 
 vantage of any breach of covenant so as that it should operate as a for- 
 feiture of the lease, he must take care not to do any thing which may 
 be deemed an acknowledgment of the tenancy, and so operate as a wai- 
 ver of the forfeiture : as distraining fur the rent, or bringing an action 
 for the payment of it, since the forfeiture accrued ; or accepting such 
 rent. So, an action for double rent on the same statute, will be barred 
 by an acceptance of rent (/;). 
 
 Therefore, where an ejectment has been brought on the stat. 4 G. 2. 
 c. 28. s. 2. for the forfeiture of a lease, there being half a year's rent 
 in arrear, and no sufficient distress on the premises : acceptance of rent 
 afterwards by the landlord, has, it seems, been held a waiver of the 
 forfeiture of the lease*, which may well be : for it is a penalty, and by 
 
 («) l Bur. 619. (b) Bull, N. P. 96. Cowp. 247. Co. 64.
 
 Sect V.] the Statute 4 G. 2. c. 28. s. 2. 427 
 
 accepting the rent, the part'- waives the penalty. -Such acceptance cf 
 rent however mj- r be with the knowledge of the r orfeiture having been 
 incurred, for otherwise it d\ es not manifest any intention in the land- 
 lord tc conti.iue his ten. v<t (a) 
 
 But though the tenant has incurred a forfeiture under the statute, yet 
 he utv -;ta- r prr-"«-ediogs either by tendering the rent before ejectment 
 is delivered, r>r by moving tor leave to pay hire Court all the rent due 
 and cos's, am time be-'jre the writ of oosse a sion is executed, even 
 after judgment agiinsi the casual ejector (b). 
 
 Or it may be done by summon . in v. j ,: on time. 
 
 Before the statrf-e, prececal lgs w>ujd be staved on bringing the rent 
 in arrear and costs into Court, in an actio 1 whether of covenant or 
 debt for rent : and it is not now confined to actions u'ider the statute (c). 
 
 For, where in ejectment by a landlord, the tenant moved to stay pro- 
 ceedings upon payment of rent, arrears ,md costs. On. a rule to shew 
 cause, it was insisted for the plaintiff that the case was net witnin the Act, 
 for that it was not an ejectment founded singly on the Act, but that it was 
 brought likewise on a clause of re entry in the lease for not repairing, 
 and the lease was produced in Court : however the rule was made ab- 
 solute, with liberty for the plaintiff to proceed upon any other title i- //e 
 
 Where the vent was tendered before notice of the action ■ rhe pro- 
 ceedings were set aside for irregularity: and the landlord . avin; . ven 
 directions respecting the matter to his attorney, was held to a:" ...: to 
 nothing (e). 
 
 The lessors of the plaintiff were both devisees and executors, and 
 in each capacity rent was due to them. The defendant moved to stay 
 proceedings on payment of the rent due to the lessors of the plaintiff as 
 devisees, thev not being entitled to bring an ejectment as executors. 
 There appeared to be a mutual debt due to the defendant by simple 
 contract, and five defendant ottered to go into the whole account, tak- 
 ing in both demands as devisees and executors, having just allowances ; 
 which the lessors of the plaintiff refused. The rule was made absolute 
 to stay proceedings en payment of the rent due to the lessors or devi- 
 sees, and costs {f )■ 
 
 It the lease specifies thai a demand cf rent should be made, eject- 
 ment cannot be brought till snch demand iae made ; but without 
 such stipulation no demand is n :ce?s t; ry j but only that six months' rent 
 should be in arrear, and no oniricie^t distress be on the premises: — 
 This statute, Lord Mansfield observed, was very perplexed (j> 
 
 As to the question, whether an actual entry is necessary in order to 
 maintain an ejectment on a clause of re-entry for non-payment of mt, 
 
 (..') Cowp. 24;. (&) 2 Bl. R. 746. 2 S:r. joo. (<•) .2 Si!',. Vnct. 21c. Saik.597. 
 
 (/) Buil.N. P. 97. (0 2 31. R. 747. (/) Ear. 184. »Sell.Fr8Ct.»ll. 
 
 (,-) D01.3. 486. 3
 
 423 Of the Action of Ejectment , $c. [Chap. XIV. 
 
 the better opinion has been, that it is not (a) ; for that an actual entry 
 is only necessary to avoid a fine, or perhaps to prevent the operation of 
 the statute of limitations, where tenant for life levies a fine, though it 
 is no bar to those in remainder, yet it seems that a remainder-man must 
 make an actual entry before he can maintain an ejectment j and where 
 an entry is necessary, the demise must be laid after it (b). 
 
 In moving for judgment upon a declaration in ejectment delivered, or 
 (in case of no tenant) affixed to the premises, according to the statute, 
 the Courts require an affidavit that half a year's rent was in arrear before 
 declaration served, that the lessor of the plaintiff had a right to re- 
 enter, that no sufficient distress was to be found on the premises coun- 
 tervailing the arrears of rent then due, that the premises were untenanted, 
 or that the tenant could not be legally served with the declaration (as 
 the case is), and that a copy of the declaration was affixed on the most 
 notorious (stating what) part of the premises : else the Court will not 
 grant a rule for judgment. — This affidavit is necessary only upon mov- 
 ing for judgment against the casual ejector, or after a nonsuit at the trial 
 for the tenant's not confessing lease, entry, and ouster. 
 
 For, if the tenant appears, and the ejectment comes to trial, the 
 matters averred in the above affidavit must be proved upon the trial (c). 
 
 Noie. The affidavit is necessary only in proceeding under the statute, 
 but not on the common law proceeding (d). 
 
 The declaration in ejectment is prepared in the usual way, taking 
 care to lay the demise after the forfeiture accrued (e). 
 
 The late tenant or other person, claiming title to the premises, has 
 the same time to appear in as is allowed to tenants in possession (f)< 
 
 After appearance the proceedings are the same as in other cases ; 
 therefore in case of no appearance, the plaintiff moves for judgment 
 against the casual ejector on the affidavit above-mentioned, and proceeds 
 as in ejectments at common law (g). 
 
 Thus, where the case comes within the statute, there is no occasion 
 for the landlord to make an actual entry and seal a lease on the pre- 
 mises : which, as we have before shewn, must be done in all other 
 cases, where the premises are untenanted, nor is there any occasion to 
 prove at the trial any actual entry or ouster ; for if the defendant ap- 
 pear, the common consent rule is sufficiently binding {h). 
 
 The affidavit will in some cases be presumed j as after a long and 
 quiet possession. 
 
 Thus where an ejectment was brought by a landlord against his te- 
 nant, under this statute, and judgment was had against the casual ejec- 
 tor by default, and possession thereupon delivered : and nearly twenty 
 
 (a) Doug. 485. Salk. 259. Bull.N.P. IC2. (i) 7T.R-433- (0 1 Bur. 62c 
 
 (J) Ibid. 618- (,) * Sell. Pract, an. (/) Ibid. (g) Ibid, 
 
 (Z.) Doug. 483.
 
 Sect. V.] Of the Remedy for the Landlord, 8$c. 429 
 
 years after, the tenant brings an ejectment against the same landlord for 
 the same premises. The landlord, who is defendant in this latter ac- 
 tion, is not obliged to produce such an affidavit as this clause requires, 
 as an essential requisite previous to his original recovery ; for as it 
 was essentially requisite, the Court will presume that such affidavit 
 was regularly made at the time, and that the judgment was founded on 
 it {a). 
 
 The landlord's remedy for rent in arrear, is by action for the mesne 
 profits, which as has been before observed, is consequent to the action of 
 ejectment, whereby the possession only is recovered (by 
 
 If one pretending to have title to land give security to the tenants to 
 save them harmless upon paying him the rent, and afterwards another 
 recover in ejectment against them, they have no remedy upon the secu- 
 rity until recovery of the mesne profits (r). 
 
 Section V. Of the Remedy fur the Landlord, under 
 the Statute 11 G. 2. c. 19' where the Premises are 
 vacant. 
 
 The injury that the landlord would sustain in his profits by his lands 
 lying fallow and his buildings going to decay, owing to the desertion of 
 his tenant and the actual possession of the premises remaining in no one, 
 is remedied by the stat. 11 G. 2. c 19. j\ 16. which after stating that, 
 < { Whereas landlords are often great sufferers by tenants running away 
 in arrear, and not only suffering the demised premises to be uncultivated 
 without any distress thereon, whereby their landlords or lessors might 
 be satisfied for the rent-arrear, but also refusing to deliver up the pos- 
 session of the demised premises, whereby the landlords are put to the 
 expence and delay of recovering in ejectments, enacts, That if any te- 
 nant holding any lands, tenements, or hereditaments at a rack-rent, or 
 where the rent reserved shall be full three-fourths of the yearly value of 
 the demised premises, and leave the same uncultivated or unoccupied, 
 so as no sufficient distress can be had to countervail the arrears of rent, 
 it shall and may be lawful to and for two or more Justices of the Peace 
 of the county, riding, division, or place (having no interest in the de- 
 mised premises), at the request of the lessor or landlord, lessors or 
 landlords, or his, her, or their bailiff or receiver, to go upon and view 
 the same, and to affix, or cause to be affixed, on the most notorious 
 part of the premises, notice in writing what day (at the distance of 
 fourteen days at least) they will return to take a second view there- 
 
 01 1 Bur.6i2- U) 2Eur.668. (*) 6 Mod, %%z.
 
 430 Of the Remedy for Ire Landlord, §c. [Chap. XIV. 
 
 of: and if upon such second view, the tenant, or some person upon 
 Lis cr her behalf, shall not appear and pay the rent in arrear, or there 
 shall not be sufficient distress upon the premises ; then the said Justices 
 may put the landlord or landlords, lessor or lessors, into the possession 
 of the s iH demised premises ; and the lease thereof to such tenants, as 
 to any demise therein contained only, shall from thenceforth become 
 
 Gurney moved for a mandamus to be directed to some magistrates of 
 the county of liliddlesex, in order that they should proceed on s. \6. 
 of this statute, to put a landlord into possession of some premises de- 
 sert.-.' by the tenant. He stated his case to be within the Act, and said 
 t.V -s m igistrates had refused to interfere, because the tenant was a 
 I.' 4 on'y L. Kenycn, on referring to the Act, asked whether the 
 ..- were on lease, and if there was a proviso for re-entering? 
 C - Counsel answering in the negative, his Lordship said, in his 
 
 c ion, the case was not within the Act. The preamble of the clause 
 spoke of the expence and delay to which landlords were put in bring- 
 ing ejectments ; it seemed, therefore, to him, that the clause applied 
 only to cases where the landlord could support an ejectment, as where 
 there was a written lease with a condition to re-enter: if no such thing 
 existed in this case, the magistrates had done right in refusing to inter- 
 fere. — Rule refused (a). 
 
 Sect. 17. "Provided always, that such proceedings of the said 
 Justices shall be examinable in a summary way by the next Justice 
 or Justices of Assize of the respective counties in which such lands 
 or premises lie ; and if they lie in the city of London or county of 
 Middlesex, by the Judge of the Courts of King's Bench or Common 
 Pleas : and if in the counties palatine of Chester, Lancaster, or Dur- 
 ham, then before the Judges thereof: and if in Wales, then before the 
 Courts of Grand Sessions respectively ; who are hereby respectively 
 empowered to order restitution to be made to such tenant, together 
 with his or her expences and costs, to be paid by the lessor or landlord, 
 lessors or landlords, if they shall see cause for the same ; and in case 
 they shall affirm the act of the said Justices, to award costs not exceed- 
 ing five pounds for the frivolous appeal." 
 
 Note. In this and all ether the like cases, the Justices ought to mak« 
 a record of the whole proceedings (/). .. 
 
 (a) East. T. 41 O. 3. T.'s MS?. (/<) 4 Burn. Tit. " Vagrants." I.
 
 [ 431 ] 
 
 CHAPTER XV. 
 
 Of the Remedies for and against Landlord and Tenant, 
 
 (continued). 
 
 For the Landlord, for Breach of Covenants and Agree- 
 ments other than for Rent. 
 
 Section I. By Action of Covenant. 
 
 Section II. By Action of Assumpsit. 
 
 Section" I. Of the Action of Covenant. 
 
 A N action of covenant or assumpsit, according as the premises arc 
 J- ^- demised by deed or not, lies for the recovery of damages for any 
 injury sustained by the landlord in consequence of the tenant neglect- 
 ing to repair the buildings, suffering trades to be carried on therein 
 contrary to his covenant, treating the land in an unhusbandmanlike man- 
 ner, or committing any other breach of the agreement. 
 
 An action of covenant cannot be maintained except upon a deed, 
 and the declaration must shew that it is brought on one (a). 
 
 In the case of joint-lessees, if a lease be to A. and B. by indenture, 
 and A. seals a counterpart, and B. agrees to the lease, but does not 
 seal, yet B. may be charged for a covenant broken ; and this though 
 the covenant be collateral, and not annexed to the land (b). The 
 assignee of a term, however, is not liable on a mere collateral 
 covenant (c). 
 
 So, if one paVty execute an indenture, it shall be his deed, though 
 the other party do not execute it: but in order to make it necessary for 
 the plaintiff to sue in covenant, the binding by deed ought to be 
 mutual (except in the case of lessee of the King's Patent) : for where 
 a defendant has never sealed the indenture he cannot be cued in that 
 form of action (d). 
 
 Touching the sealing of bonds or deeds, if it appear upon oyer 
 
 (.;) 2 Ed. Raym. 1536, (i) Co. Lit. 231. n. 
 
 (c) Cro. Jac. 437. (J) Cro. EH 1 ?. 215. Cro. Jac. 240.
 
 432 Of the Action of Covenant. [Chap. XV. 
 
 that two parties sealed it, whereas one only is sued, the law will not 
 intend that the other sealed the deeds unless it be expressly averred 
 that he did : and though the bond or deed upon oyer recite, « in wit- 
 ness whereof we have set our hands and seals," yet that does not 
 amount to such an averment, but the defendant must shew that the 
 bond or deed was actually sealed by the other [a). 
 
 There are, indeed, some words of art, such as " indenture," 
 " deed," or " writing obligatory," which of themselves import that 
 the instrument was sealed by the party without an averment of sealing. 
 If, therefore, the declaration states that J. S. by his " deed" did so 
 and so, or by " indenture" covenanted or demised, or by his " writing 
 obligatory" acknowledged, £gV. without averring in either of these 
 cases that he sealed, still the declaration is good. So, delivery, which 
 is essential to a deed, is never averred (£). 
 
 But without such averment, or words of art, it is otherwise: for if 
 it be alleged that J. S. by his " certain writing" simply, demised, or 
 covenanted, or acknowledged, &c. without averring that he sealed, 
 the Court will not intend that the writing was sealed (c). Neither 
 does it follow, because the words " in witness whereof we do put 
 our hands and seals y " are used in the conclusion of an agreement, that 
 therefore it was sealed by the parties: on the contrary, it has been 
 decided that these words do not amount to an averment that the parties 
 sealed the instrument (d). 
 
 Leaving the glass of windows cracked has been held to be a breach 
 of covenant to repair. — So, not repairing a pavement is a breach of 
 covenant to leave the premises sufficiently maintained and repaired : 
 for it is within the intention of the covenant, and is quasi the build- 
 ing ; and the not repairing may be matter of value and of such pre- 
 judice to the lessor.— So, carrying away a shelf, though not stated to 
 be a fixture, has been field to be a breach of covenant to leave the 
 premises in the same order, e;V. ; for it shall be intended to be 
 fixed (e). 
 
 A covenant to repair during the term after three months' notice, 
 and to leave the premises in repair at the end of the term, are distinct 
 clauses : therefore notice is not necessary to sustain an action for 
 non-repair at the end of the term ; ior the notice refers only to repara- 
 tions within term, to which the lessee is not tied without notice three 
 months before ( / ). 
 
 But a covenant to keep a house in repair from and after the lessor 
 hath repaired it, is conditional, and it cannot be assigned as a breach 
 that it was in good repair at the time of the demise, and that the 
 
 (j) i Saund. 29T. n. r. (1) Hid. 0) Ibid 
 
 (0 Ibid. 330. (/) 1 S»i.r. 1. 644.
 
 Sect. I J Of the Action of Covenant. 433 
 
 lessee suffered it to decay ; for the lessor must repair before the lessee 
 is liable (a). 
 
 If a lessor covenants to let certain lands except such a close, a torti- 
 ous entry by the lessee into the excepted close is said not to be a breach 
 of a condition to perform all covenants contained in the lease (b). 
 
 Therefore if H. lets a house, excepting two rooms, and is disturbed 
 therein, covenant lies not : but if he had excepted a passage thereto, 
 and had been disturbed in that, it would have lain j for it well lies for 
 a thing which the lessee agrees to let the lessor have out of the demised 
 premises (c). 
 
 If a copyholder in fee makes a lease for years warranted by the 
 custom, in which the lessee covenants to repair during the term, a 
 surrenderee of the assignee of the reversion may maintain covenant 
 for non-repair against the original lessee, although he had assigned the 
 term before the reversion was surrendered to the plaintiff: for a copy- 
 holder is within the stat. 32 H. 8. c. 34 (d). — The doubt in this case, 
 arose upon the tenure of the messuage; for if it had been freehold, it 
 was agreed, the action might well have been brought by the assignee 
 of a reversion against a lessee for years after he had assigned his term, 
 notwithstanding the lessor or his assigns had accepted the rent from the 
 assignee of the lessee ; and this upon the general words of the statute 
 which gives " the grantees and assignees of reversions of lands, tene- 
 " ments, and other hereditaments, the like advantage against lessees 
 " by entry for non-payment of rent as the lessors or grantors themselves 
 " might have." This clause, therefore, is not confined to a covenant 
 for the payment of rent (<?). 
 
 If a farm is out of repair in the life of the ancestor and afterwards 
 the heir brings an action, he shall recover damages for the whole time; 
 but he ought not to allege a breach in the ancestor's lifetime, because 
 that belongs to the executor (/)• 
 
 A recital of an agreement in the beginning of a deed will create a co- 
 venant, upon which this action will lie. 
 
 As, where on the demise of a ccai mine, it was recited " that before 
 the sealing of indenture it had been agreed that the plaintiff should 
 have the third part dug, c7V." on an action of covenant being brought 
 on this, it was objected, that there was no covenant that the plaintiff 
 was to have the third part : but per Hale— Were it but a recital that be- 
 fore the indenture they were agreed, it is a covenant ; so, to say 
 " whereas it was agreed to pay 20/." for now the indenture confirms 
 the former agreement by such declaration, and makes it a covenant (g). 
 
 This action \\r< by the lessor against the assignee of the lessee's as- 
 signee for a breach of covenant that runs with the land, though he be 
 
 {a) 1 Saur.d. 645. (b) Cro. Eliz. 657. (.-) 1 Salk. 196. (J) 4 Mod. 81, 
 (<•, Cio. Car. 188. 575. (J) u lNlod - 4> (2) x Es P- N - P ' 268, 3 Keb. 4- ; 
 
 F f
 
 43i Of the Action of Covenant [Chap. XV. 
 
 assignee of a part only of the premises demised ; for he is liable while 
 he enjoys (a). 
 
 A reversioner in fee of a house by one deed, and of a lease for 
 years of land by another deed, may bring covenant on a lease against 
 the person to whom both the house and land have been demised by the 
 grantor of the reversions, although he derives his ri^ht from different 
 titles {b\ 
 
 Where this action was brought on a covenant " to permit the plain- 
 tiff, in the last year of the term, to sow clover among the defendant's 
 bark /," and the breach assigned was, that the defendant bowed so many 
 acres with barley and so many with oats, witbout giving " notice" to 
 the plaintiff, by which he was prevented from sowing the clover and 
 grass seeds.— Plea, that the defendant did " not prevent," was upon 
 demurrer holden good : for the covenant made no mention at all about 
 any notice to be given : and the breach assigned, being the not permit- 
 ting the plaintiff to sow grass seed, the single question was, whether the 
 defendant did or dW not prevent him ? If, indeed, he had refused to 
 give notice, or had given a wrong notice, it might have been a breach : 
 besides, the plaintiff was the party for whose benefit the covenant was 
 intended ; therefore he ought to have used due diligence (c). 
 
 In covenant by an executor against a lessee, the declaration 
 stated, that one seised in fee by will devised to W. March for life, re- 
 mainder in tail to the said W. M. with power to grant leases for life 
 reserving the best rent; that W. M. on June 9, 1778, granted to the 
 defendant a lease for twenty years and a quarter; IV. M. died and the 
 premises descended to his son, who suffered a recovery, and conveyed 
 them to the plaintiff's testator. The breaches were for non payment of 
 rent, for not repairing, and for not putting dung upon the premises. 
 The rent, by the reddendum of the lease, was 60L per ami. but there was 
 a covenant to render 64/. Laives, of counsel for the plaintiff in error, 
 observed, that the breach assigned was non- payment of 16/. as a quar- 
 ter's rent ; which was more than the propori..<n of 60/. per nnn. accord- 
 ing to the reddendum. The last breach was for not laying dung upon 
 the premises. The covenant was, that the dung should be laid each and 
 every year during the continuance of the term. The fact was, that the 
 plaintiff's testator purchased the estate only eight days previous to the 
 expiration of the lease. Uid his Lordship therefore think that he was 
 entitled to the benefit of this covenant and :ould assign a breach for the 
 non-expenditure of the dung which was to be laid every year upon the 
 premises ?— L. Kenyai, "Yes, beyond Jl doubt; if the testator were 
 seised of the reversion during the continuance of the term." Judg- 
 ment affirmed. The first objection as t j the breach for non-payment 
 
 [a) Cro. Car. tti. '}) Cw. Jac. 329. („-) Cowp. it.?.
 
 Sect. I.] Of the Action of Covenant. 435 
 
 of rent was abandoned, it appearing that in the Judges copies of the 
 paper-book, the rent reserved was 64/. The damages were assessed, 
 severally on each breach, which (the counsel observed), afforded a pre- 
 sumption that the defendant in error thought some of them not sup- 
 portable (a). 
 
 The tenant is not estopped by the description of the lands in the 
 lease. 
 
 Thus in covenant the plaintiff declared, that whereas he had demised 
 to the defendant a house and several parcels of land, which were parti- 
 cularly described, some to be arable, some meadow, and some pasture, and 
 especially two meadows, called Laities meadows, the defendant covenanted 
 to \>iy$Lper acre for every acre of meadow, which he should plough up dur- 
 ing the lease; and breach assigned in ploughing up Laine's meadow, tsfc. 
 Plea ; that for sixty years past, Laine's meadow has been arable land, and 
 by times ploughed up and sowed, as the tenants thereof thought proper, 
 and traverse, that at the time of making the lease it was meadow 
 ground, as is supposed in the declaration. To this the plaintiff de- 
 murred, on the ground that the defendant was estopped to say that 
 what is in the lease called meadow, is of any other nature. Sed per 
 Curiam; The indenture is to be construed according to the intent of 
 the parties, and here the intention was only to covenant against the 
 ploughing up real meadow. Every body knows that in deeds of this 
 nature the parcels are very often taken from former deeds, without re- 
 gard to every alteration of the nature of the land : and it would be the 
 hardest case in the world, that if this land had been arable at one time 
 and laid down at another, the tenant should be concluded by calling it 
 by either of those descriptions. This is not the essence of a deed, as 
 what is struck at by nil habuit in tenementis. It would be carrying estop- 
 pels too far should we extend them to this case ; therefore we are all of 
 opinion, that the defendant had a right to try the fact, whether it was 
 antient meadow or not [b). 
 
 To breach of covenant for not repairing, &c. the lessee cannot plead 
 in bar that the lessor had only an equitable estate in the premises, for 
 that is tantamount to nil kabuit, &c. But Seinb. he is not estopped 
 from shewing that the lessor was only seised in right of his wife for her 
 life, and that she died before the covenant broken ; because an interest 
 passed by the lease (c). 
 
 An assignee in covenant need not name himself assignee where he 
 shews a legal assignment (d). 
 
 Though a covenant be joint and several in the terms of it, yet if the 
 interest and cause of action be joint, the action must be brought by all 
 
 (a) v. Davis, M, T. 4- G. 3. T,\ MSS. (b) 1 Str. Cic. (,) 8 T- R. 4^ • 
 
 {il Ibid. 140. 
 
 Ff 2
 
 A36 Of the Action of Covenant. [Chap. XV. 
 
 the covenantees : and on the other hand, if the interest and cause of 
 action be several, the action may be brought by one only (a). So, 
 though a man covenant with two or more jointly, yet if the interest 
 and cause of action of the covenantees be several and not joint, the 
 covenant shall be taken to be several, and each of the covenantees may 
 bring an action for his particular damage, notwithstanding the words of 
 the covenant are joint (/>)• 
 
 But where two persons covenant jointly and severally with another, the 
 the covenantee may bring an action against one of the covenantors only, 
 though their interest in the subject-matter of the covenant be joint : as, 
 where A. lets land to B. and C. and they covenant jointly and severally 
 with the lessor to pay the rent or the like, he may bring an action 
 against either of the covenantors ; because they are sureties for each 
 other for the due performance of the covenants, and it is as competent 
 for each of them to covenant for the other, as it is for a stranger to co- 
 venant for both, which is a usual thing {c ). 
 
 Even if the covenant were joint, and an action brought against one 
 of the covenantors, he could take advantage of it only by a plea in 
 abatement. — For where there are several covenantees or obligees, and 
 one of them only brings an action, without averring in the declaration 
 that the others are dead, the defendant may either take advantage of it 
 at the trial as a variance upon the plea of non est factum > or pray oyer 
 of the deed and demur generally. But where an action is brought 
 against one of several joint covenantors or obligors the defendant can 
 only take advantage of it by a plea in abatement ; and though it should 
 appear upon the record that there are others who ought to be joined as 
 defendants, yet that will not be error (</). 
 
 For wherever any person who ought to have been joined as a defend- 
 ant, is omitted, it is pleadable in abatement only : the reason is because 
 such plea gives the plaintiff a better writ, which is the true criterion to 
 distinguish a plea in abatement from a plea in bar [e). 
 
 As to what covenants shall be construed to be precedent or not, it 
 has been laid down, that the dependence or independence of covenants 
 was to be collected from the sense and meaning of the parties, and that, 
 however covenants might be in a deed, their precedency must depend 
 on the order of time in which the intent of the transaction required their 
 performance. — Conditions therefore are to be construed to be either pre- 
 cedent or subsequent, according to the fair intention of the parties to 
 be collected from the instrument, and technical words should give way 
 to that intention (/'). 
 
 Therefore, where in a lease for seven years, containing the usual co~ 
 
 (a) i Saund. 153. (i) Ibid, n, I. (.-) Ibid. 5 T. R. 5:;. 
 
 {*) i iiaund, ijj a, i, (0 ibid. 24?, n, 4. 1 Str.joj. (/) Dovz-OOs. 
 
 8
 
 Sect. I.] Of the Action of Covenant. 437 
 
 venants that the lessee should pay the rent, keep the premises In repair, 
 tsfc. a proviso was, that the lessee might determine the term at the end 
 of the first three or five years, giving six months' previous notice, and 
 that then from and after the expiration of such notice, and payment 
 of all rents and duties to be paid by the lessee and performance 
 of alJ his covenants until the end of the three or five years, the in- 
 denture should cease and be utterly void. Ruled that the payment of 
 rent and performance of the other covenants, are conditions precedent 
 to the lessee's determination of the term at the end of the first three 
 years, and that his merely giving six months' notice, expiring within 
 the first three years, is not sufficient for that purpose {a). 
 
 Plaintiff covenanted to sell defendant a school-house, tafc. and to 
 convey the same to him on or before the first of August^ 1797, and to 
 deliver up the possession to him on the 24th of Jurie> 1796 ; and in 
 consideration thereof, the defendant covenanted to pay the plaintiff 120/. 
 on or before the said first of August, 1797: it was holden, that the 
 covenant to convey, and that for the payment of the money, were 
 dependant covenants ; and that the plaintiff could not maintain an ac- 
 tion for the 120/. without averring that he had conveyed or tendered a 
 conveyance to the defendant. Were it to hold otherwise, in such a 
 case as the present, the greatest injustice might be done; for supposing, 
 in the instance of a trader who had entered into such a contract of the 
 sale of an estate, that between the making of the contract, and the 
 final execution of it, he were to become a bankrupt, the vendee might 
 be in the situation of having had payment enforced from him, and yet 
 be disabled from procuring the property for which he had paid (b). 
 
 But where A. covenanted to build a house for B. and finish it on or 
 before a certain day, in consideration of a sum of money, which B. cove- 
 nanted to pay to A. by instalments, as the building should proceed; the 
 finishing of the house was held not to be a condition precedent to the 
 payment of the money, but that the covenants were independent; where- 
 fore A. might maintain an action of debt against B. for the whole sum, 
 though the building be not finished at the time appointed (c). It is ac- 
 cordingly laid down that, if a day be appointed for the payment of the 
 money, and the day is to happen before the thing can be performed, an 
 action may be brought for the money before the thing be done : for it ap- 
 pears that the party relied upon his remedy, and intended not to make 
 the performance a condition precedent. So in this case by the terms of 
 the contract, two several sums of money were to be paid before the 
 thing to be done was done. The plaintiffs therefore were clearly enti- 
 tled to this action for the money without averring performance, and 
 the defendant to his remedy on the covenants (d). 
 
 (a) 6 T. R. 665. (i) 8 T. R. 366. («) 2 H. Bl. 389, 
 
 <d) i Salk. 170. 1 Ld. Raym. 662, Com. R. 98. 12 Mod. 45 J-
 
 438 Of the Action of Covenant. [Chap. XV. 
 
 No precise technical words, however, are required in a deed to make 
 a stipulation a condition precedent cr subsequent ; neither does it de- 
 pend on the circumstance, whether the clause is placed prior or posterior 
 in the deed, so that it operates as a proviso or covenant, for the same 
 words have been construed to operate as either the one or the other, ac- 
 cording to the nature of the transaction: the merits therefore of a ques- 
 tion of this kind, must depend on the nature of the contract, and the 
 acts to be performed by the contracting parties, and any subsequent 
 facts disclosed on the record, which have happened in consequence of 
 the contract (<?). 
 
 In covenant the plaintiff may assign as many breaches as he will. 
 So in debt on bend for the performance of covenants, by stat. 8^9 
 W. 3. c. 11 (3). 
 
 On a covenant in London to repair houses in Surry, the breach must 
 be assigned at the place where, &c. viz. at London (c). 
 
 "Where there has been an assignment by deed, it is sufficient to 
 prove the assignment by the subscribing witness without calling the 
 witness to the original deed ; for the assignment having adopted the 
 original deed in all its parts, it is become as one deed ,d). 
 
 In covenant, if some breaches are well assigned and some not, and 
 there is a demurrer to the whole declaration, the plaintiff shall have 
 judgment for those breaches which are well assigned (e). 
 
 A variance in setting out one of several covenants in a lease on which 
 breaches were assigned, viz. the Cellar Beer Field, instead of Aller Beer 
 Field, being considered as part of the description of the deed declared 
 on, though the plaintiff waived going for damages for the breach of 
 that covenant, is fatal (/). 
 
 To a count in covenant charging the defendant as executors for 
 breaches ot covenant by their testator as lessee, who had covenanted 
 for himself, executors, and assigns, may be joined another count 
 charging them that after the death of testator and their proving his 
 will, and during the term the demised premises came by assignment to 
 D. A. against whom breaches were alleged, and concluding that so 
 neither the testator nor the defendant after his death, nor D. A. since 
 the assignment to him had kept the said covenant, but had broken 
 the same. And pletie administraverunt may be pleaded to both 
 counts [g). 
 
 On a breach that the house was not in repair, a plea that the plain- 
 tiff agreed that the defendant should employ a person four days in and 
 about repairing the house, in satisfaction, is bad; for the defendant 
 was obliged to do the repairs by the original covenant (h). 
 
 0) 1 T. R. 643. (b) Cro. Car. 176. (e) Cro. Jac. 446. 
 
 (J) 1 Kip. R. 217. 00 1 Saund. 286. n. 9. (/) 9 East, 188. 
 
 v j, 10 East, 313. [b) 4 Mod. 88.
 
 Sect. I.] Of the Action of Covenant. 439 
 
 If I covenant to leave all the timber which is growing on the land 
 when I take it, and at the end of the term I cut it down, but leave it 
 there, it is a breach of the covenant: for a covenantor shall not defeat 
 the intent of his covenant, which is ever to be taken most strongly 
 against himself (a). 
 
 A covenant is not a duty nor a cause of action, till it be broken ; 
 and therefore it is not discharged by a release of all actions; and when 
 it is broken, the action is not founded merely upon the specialty, as if 
 it were a duty, but savours of trespass; and therefore an accord is a 
 good plea to it; and ends in damages (b). 
 
 But if the one party disable himself from performing his part, the 
 other party is not obliged to offer performance of his part, but may 
 have an action immediately (c). 
 
 As, where the lessor covenanted with the lessee to make him a new 
 lease on surrender of the whole within twenty years, and before the 
 twenty years expired the lessor aliened the land to another by fine: it 
 was adjudged, that the action lay immediately, for he had disabled 
 himself to accept a surrender, and so to make a new lease (*/). 
 
 If, however, a man have lands for a term of years, and covenant to 
 leave them in as good a plight as he found them, although he pull 
 down the houses, the lessor shall not have an action of covenant before 
 the end of the term; for the covenant has relation thereto, and he may 
 rebuild them.- But if he do waste in wood, covenant lies: for he can- 
 not repair it (e). 
 
 If the defendants, however, prevent the performance of a condition 
 precedent by their neglect and default, it is equal to performance by 
 the plaintiff's (/). 
 
 Performance pleaded otherwise than in the terms of the covenant, 
 is bad (g), tven on general demurrer to the plea of " accord and satis- 
 " faction," in covenant (h), where the damages are uncertain and to 
 be recovered, a lesser thing may be done in satisfaction, and there 
 " accord and satisfaction" is a good plea ; as to an action on a cove- 
 nant to repair (z). 
 
 On a covenant that runs with the land, evidence that the defendant 
 it in as heir will support a declaration charging him as assignee (k). 
 
 The lessee of a coal mine, who covenants to pay a certain share of 
 all -ch sums of money as the coals shall sell for at the pit's mouth, 
 is not liable under that covenant to pay to the lessor any part of the 
 money produced oy the sale of the coals elsewhere than at the pit's 
 mouth ; and evidence of the lessee's having accounted with the lessor, 
 
 (<0 iEsp. N. P. 271. (l>) Shep. Touch. 161. n. I. CO i Esp. N. P. 285. 
 
 (4) Cro. Eliz. 449. (» F. N. 13. 145. K.et v'-de % Bl. Rep. 842. ante C. X. s. ii. 
 
 (/) 1 T. R. 638. {£) 1 Bos. & Pul. 453- ( /j ) 4 Mod. 89. (0 Cro. Jac. 99. 
 00 4 T. R. 7j.
 
 440 Of the Action of Covenant. [Chap. XV. 
 
 and paid him the share of the money produced by the sale of 
 coals elsewhere, is not admissible to explain the intention of the 
 parties {a). 
 
 In covenant on an indenture of demise of a coal mine made on the 
 8th of July, 1805, reserving one-fourth of the coal raised, or the 
 value in money, at the election of the lessor, and if the one-fourth 
 fell short of 400/. per annum, then reserving such additional rent as 
 would make up that annual sum, to be rendered monthly in equal por- 
 tions: held that the lessee having elected to take the whole in money, 
 may declare for two years' and three months' rent in arrear : but even if 
 the money rent were reserved annually, the plaintiff may remit his 
 claim as to the three months' rent, and enter up judgment for the two 
 years' rent only, and having first well assigned a breach of the cove- 
 nant that the lessees had not yielded monthly the one-fourth or the 
 value in moneyj t*fc. but had refused, CSV. Held, that it would not 
 hurt on general demurrer that the count went on to allege that before 
 the exhibiting of the plaintiff's bill, viz. on the 1st of Nov. 1797, 
 9c o/. of the rent reserved for two years and three months was due 
 and in arrear; for that date being before the lease made, and therefore 
 impossible in lespect to the subject-matter, must be rejected; and the 
 general allegation that before the exhibiting of the plaintiff's bill 900/. 
 of the rent reserved, &c. was due, is sufficient. 10 East. 139. 
 
 If the breach of a covenant be assigned thus: " That the defendant 
 <c has not used the farm in an husbandmanlike manner, but on the 
 " contrary has committed waste," the plaintiff cannot give evidence of 
 the defendant's using the farm in an unhusbandmanlike manner, if it 
 do not amount to waste. — (m the former words of the breach, had 
 they stood alone such evidence might have been given (£). 
 
 In covenant for non-repair (as for not repairing hedges and not 
 ploughing land) the writ of enquiry shall be to the place where the 
 lease was made (<:). 
 
 Covenant lies against an assignee on a covenant not to plough, al- 
 though assigns are not named in the deed : for it runs with the 
 land (d). 
 
 So, if A. leases lands to B. and B. covenants to pay the rent, re- 
 pair houses, &c. during the said term, and afterwards assigns to C, 
 the assignee is bound to perform the covenants during the term of the 
 first lessee, though the assignee be not named; because the covenant 
 runs with the land made for the maintenance of a thing in esse at the 
 time of the lease made [e). 
 
 So, if A. demises to B. several parcels of land, and the lessee cove- 
 
 (*)5T. R.564. (O3T.R.307. (c) Cro. Jac. ix. 00 Ibid. 125. 
 
 (e) Bac. Abr. tit. " Covenant." (E. 3.)
 
 Sect. I.] Of the Action of Covenant. 441 
 
 nants for him and his assigns to repair, &c. and after the lessee assign? 
 to D. all his estate in parcel of the land demised, and D. does not 
 repair that to him assigned, the lessor may have an action of covenant 
 against D. the assignee (a). 
 
 For a covenant may be dividable and follow the land ; wherefore 
 an action of covenant will He against an assignee of part of the thing 
 demised (b). 
 
 If a lessee covenants that he and his assigns will repair the house 
 demised, and the lessee grants over the term, and the assignee does 
 not repair it, an action of covenant lies either against the assignee at 
 common law, because this covenant runs with the land, or it lies 
 against the lessee at the election of the lessor, who may charge both, 
 but execution shall be against one of them only; for if he take both in 
 execution, he that is last taken shall have an audita querela (c). 
 
 So, the executor of a lessee is liable to the grantee of the reversion 
 on such a covenant ; though the lessee may have assigned his term and 
 the grantee have accepted rent of the assignee (d). 
 
 For the personal representative of a lessee for years* is his assignee; 
 and a covenant to repair runs with the land, as it is to be performed 
 on it, and therefore binds the assignee (e). So with respect to a cove- 
 nant to make further assurance (f). 
 
 So, if there is a covenant which runs with the land and the lessee 
 assigns over, and the assignee dies intestate, the lessor may have cove- 
 nant against the administrator of the assignee and declare against him 
 as assignee: for such covenants bind those who come in by act of law, 
 as well as by act of the parties (g). 
 
 As to the extent to which the lessee or assignee is liable in covenant, 
 there is a considerable difference (£). 
 
 1. The lessee has, from his covenant, both a privity of contract and 
 of estate; and though he assigns, and thereby destroys the privity of 
 estate, yet the privity of contract continues, and he is liable in covenant 
 notwithstanding the assignment (/). 
 
 2. But the assignee comes in only in privity of estate, and therefore 
 is liable only while he continues to be in possession, and therefore has 
 the legal estate : except in the case of rent, for which though he assign 
 over he is liable as to the arrears incurred before as well as during his 
 enjoyment ; and such assignee was made liable in equity, though the 
 privity of estate was destroyed at common law (k). 
 
 (a) Bac. Air. tit. " Covenant." (£. 3.) (b) Cro. Car. 222. 
 
 (0 Cro. Jac. 525. (d) 4 Mod. 83. (<) 1 Ld. Raym. 553. 
 
 (/) Cro. Car. 503. (g) Esp. N. P. 290. (b) C. XL ant . 
 
 (i) Doug. 458. 764. (i) Bac. Abr. tit. " Covenant." (E. 4.) 1 Bos. & Pull. 2J< 
 
 -'. East's R. 58c, Stcne v. Evans, ante, C III. s. 14
 
 44 ( 2 Of the Action of Covenant. [Chap. XV. 
 
 Assignees of a bankrupt are not liable for the rent of premises 
 assigned to them by the commissioners unless they take posses- 
 sion (a). 
 
 Where assignees of a bankrupt advertised a ^ase of certain premises, 
 of which the bankrupt was lessee, for sale by auction, without stating 
 themselves to be the owners or p>sses;.crs thereof, and no bidder offer- 
 ing, they never took possession in fact of the premises: held that this 
 was no more than an eypen w-t to ascertain the value, whetaer the 
 lease were beneficial or not t" t.e creditors, and dH rot amount to an 
 assent on the part of the assignees to take the term, or support an 
 averment in a declaration in covenant against them by the landlord, that 
 all right, title, interest, Uc. of the bankrupt in the premises came to 
 defendants by assignment thereof (b). 
 
 Where the breach assigned was in two covenants, and it appeared, 
 that for the one, the plaintiff had no cause of action, and for the 
 other a good cause, and issue was joined on both, and found for the 
 plaintiff in both and damages entirely assessed ; the plaintiff could not 
 have judgment. 
 
 (r) To an action of covenant for not pulling down part of a house 
 called The Cherry Tree at South-gate, in Middlesex, which had been let 
 by the plaintiff to the defendant's testator ; the plea was that the tes- 
 tator had repaired and beautified other parts of the premises, at the 
 plaintiff's request, which the plaintiff had accepted in satisfaction ; re- 
 plication, protesting that the plaintiff did not request the testator, to 
 repair ; and replying that he did not accept the repairs in satisfaction. 
 It appeared that the plaintiff had demised the house to the testator, who 
 had covenanted to pull down the corner of it for the purpose of letting 
 the plaintiff make a cart way over the place where the corner of the 
 house stood. Lord Kenyan. — The plaintiff has demised the house 
 called the Cherry Tree, and consequently the ground on which it stood. 
 The way he claims is to be made over part of the ground on which the 
 house so demised stood. Every deed is to be taken most strongly 
 against the grantor. If the corner of the house is pulled down, the 
 plaintiff cannot use the ground on which it stood, because it passed by 
 the demise ; and not having reserved in the deed any right to use it 
 unless the plaintiff had so reserved it, he cannot claim it as a way but 
 by prescription : but as the testator did covenant to pull down the 
 corner of the house, and has not done so, there must be a verdict for 
 the plaintiff, but only for nominal damages (</). 
 
 As to bringing money into Court in this action ; where there are se- 
 
 („-) aEsp. Rcr. 69c. 
 
 (a) Peake's R. 139* 
 
 (4) 7 East 
 
 > 235' 
 
 v i)i H.B1.Z7. 
 
 
 7
 
 Sect. II.] Of the Action of Assumpsit. 443 
 
 vcral counts or breaches in the declaration, and as to some of them, 
 the defendant may bring money into Court, but not as to the others, 
 he may obtain a rule for bringing it in specially. Thus, where in co- 
 venant upon a lease for non-payment of rent, and not repairing, k&c. 
 the Court made a rule, that upon payment of what should appear 
 to be due for rent, the proceedings as to that should be stayed ; and as 
 to the other breaches, that the plaintiff should proceed as he should 
 think fit (a). 
 
 Respecting relief by bill in equity, the party cannot seek for specific 
 performance of a covenant to repair (b). 
 
 But upon a covenant to build, the covenantee is clearly entitled to 
 apply to a Court of equity for a specific performance ; for to build is 
 one entire thing, and if not done prevents that security for his rent to 
 which the lessor is entitled by virtue of a building lease (c). 
 
 Wh^re a person on a building lease covenants to new build the brick 
 meninges on the premises, the rebuilding some and repairing others 
 was held not to be sufficient to answer the covenant, but the lessee 
 must rebuild the whole (d). 
 
 Section II. Of the Action of Assumpsit. 
 
 If the lease be by writing without deed, or by parol demise, the 
 landlord's remedy for the breach of such stipulations, as the terms of 
 the agreement express or the contract implies, is by an action of as- 
 sumpsit ; for an action upon the case on assumpsit, (or as it is also 
 called on promises) is an action which the law gives the party injured by 
 the breach, or non-performance of a contract legally entered into ; it 
 is founded on a contract either express or implied by law, and gives the 
 party damages in proportion to the loss he has sustained by the viola- 
 tion of the contract. 
 
 An agreement to leave a farm as he found it, is an agreement to 
 leave it in tenantable repair, if he found it so ; and will maintain a de- 
 claration so laid (e). 
 
 In an action against a tenant upon promises that he would occupy 
 the farm " in a good and husbandmanlike manner, according to the 
 custom of the country ;" an allegation that he had treated the estate 
 contrary to " good husbandry and the custom of the country," is 
 
 (a) i Tidd's Pract. 564- (£) 3 Atk. 51 <■ . (c) Ibid. 3 Ves. I? 
 
 {d)% Atk. j 12. 3 Br. R. 66. contra. ( e ) z Bl. R. 840,
 
 444 Of the Action of Assumpsit. [Chap. XV. 
 
 proved by shewing that he had treated it contrary to the prevalent 
 course of husbandry in that " neighbourhood," as by tilling half his 
 farm at once, when no other farmer there tilled more than a third, 
 though many tilled only a fourth : and it is not sufficient to shew any 
 precise definite custom or usage in respect of the quantity tilled (a). 
 
 In special assumpsit against the tenant for not performing his agree- 
 ments, the estate of the lessor is an immaterial averment, if the te- 
 nant has had the enjoyment of his lease. For the true rule is, that on 
 the general issue in an action on the case, all material averments are 
 denied and put in issue, but nothing else. The estate of the plaintiff 
 is not a material averment ; for a lease by a tenant in tail (as the plain- 
 tiff in this case was) is not void, but only voidable by the issue in tail : 
 it had not been nor could be avoided during the life of the lessor ; nor 
 does it lie in the mouth of the defendant, who lias enjoyed the fruit of 
 it, to dispute its validity. That therefore being an immaterial aver- 
 ment, the plaintiff, (notwithstanding he was mistaken in his title) was 
 held to be entitled to recover on the first count of the declaration, which 
 stated that the lands descended to him in fee on the death of his fa- 
 ther, as son and heir (b). 
 
 A tenant at will even is bound to keep the premises in repair, and 
 to use the land fairly according to the course of husbandry which the 
 nature of the soil may require, and the custom of the country points 
 out as being proper. It seems indeed, that those covenants which are 
 implied in a lease, (of which we have in a preceding part of this work 
 made more particular mention,) subsist between landlord and tenant, 
 as resulting from their relative situation, by whatever means that situa- 
 tion is created ; so that the breach of any of them is a wrong for which 
 the law affords a remedy : an action on the case therefore will lie for 
 damages arising from the neglect to repair (<:). 
 
 An agreement, (as has been before observed) though not under seal, 
 may be declared on specially, in which case it may be said to bind the 
 parties by its own force ; or the plaintiff may in some instances declare 
 generally, and give the written contract in evidence (^/). 
 
 A tenant from year to year is bound (as has been observed) only to 
 fair and tenantable repairs, so as to prevent waste or decay of the pre- 
 mises, but is not bound to do substantial and lasting repairs (e). 
 
 By an agreement between plaintiffs and defendant ; the defendant 
 was to accept of the assignment of the lease of a term from the 
 plaintiffs, and to take the fixtures and crops at a valuation; he was 
 afterwards let into possession of the fixtures, and the crops were va- 
 
 -'.') 4 H a? t's R. 154. (I) 4 East's R, 154. (<0 Co. Lit, 56. b. p.. 2. 
 
 (<0 6T.R. 319. <Y) zEsp.R.jjo.
 
 Sect. II.3 Of the Action of Assumpsit. 445 
 
 lued to him ; but the lease was never assigned : held that indebi- 
 tatus assumpsit would not lie for the price of the fixtures and crops, 
 and that the plaintiff's only remedy was by a special action on the 
 agreement (a). 
 
 Where an agreement between an out-going and an in-coming tenant 
 was that the latter should buy the hay, &c. upon the farm, and that 
 the former should allow to the latter the expense of repairing the gates 
 and fences ; and that the value of the hay, &c. and of the repairs 
 should be settled by third persons j held that the balance settled to be 
 due for the hay, &c. y after deducting the value of the repairs, might 
 be recovered by the out-going tenant in a count upon a general indebi- 
 tatus assumpsit for goods sold and delivered {b). 
 
 (a) i Campb, 471, •'*) 12 East's R, i.
 
 [ 446' ] 
 
 CHAPTER XVI. 
 
 Of the Remedies for Waste 
 
 Section I. By Action of Waste on the Statute of 
 Gloucester : and Trover for /Taste. 
 
 Section II. Action on the Case in the Nature of 
 
 Waste. 
 Section III. In Equity, 
 
 Section I. Of Waste on the Statute of Gloucester, 
 
 Ty EMEDIES for waste lie at common law by prohibition of waste 
 A ^ and action of waste : in favour of the owner of the inheritance: 
 however, the statutes of Marlbridge> 52 H. 3. c. 23. and of Gloucester, 
 6 E. 1. c. 5. provided that the writ of waste shall not only lie against 
 tenants by the law of England or curtesy) and those in dower, but 
 against any farmer or other that holds in any manner for life or years : 
 so that for above five hundred years past all tenants merely for life or 
 for any less estate have been punishable or liable to be impeached for 
 waste both voluntary and permissive ; unless their leases be made, as 
 sometimes they are, without impeachment of waste, absque itnpetitiotie 
 vasti; that is, with a provision or protection that no man shall impetere 
 or sue him for waste committed (a). 
 
 But tenant in tail, after possibility of issue extinct, is not impeach- 
 able for waste ; because his estate was at its creation an estate of inhe- 
 ritance, and so not within the statutes. The first incident to an estate 
 tail is, that the tenant shall not be punishable for committing waste, by 
 felling timber, pulling down houses, opening and working mines, tsV. 
 But this power must be exercised during the life of the tenant in tail, 
 for at the instant of his death it ceases. If, therefore, a tenant in tail 
 sell trees, growing on the land, the vendee must cut them down during 
 the life of the tenant in tail ; for otherwise they will descend to the 
 heir, as parcel of the inheritance (b), 
 
 {*) 2 El. Com. 285, (J>) Cruise's Dig. tit. 1 C. 1. s. 33,
 
 Sect. I.] Of Waste on the Statute of Gloucester. 447 
 
 The Court of Chancery will not, in any case whatever, restrain the 
 tenant in tail from committing waste. It is said also, that if he grant 
 all his estate, the grantee is dispunishable for waste : so if grantee 
 grant it over, his grantee is likewise dispunishable. Neither does waste 
 lie for the debtor against tenant by statute, recognizance, or elegit, be- 
 cause against them the debtor may set off the damages in account : but 
 it seems reasonable that it should lie for the reversioner expectant on 
 the determination of the debtor's own estate, or of those estates derived 
 from the debtor (a). 
 
 By the statute of Marlbridge, single damages only could be recovered, 
 except in the case of a guardian : but the statute of Gloucester directs 
 that tenant in dower, by the curtesy, for life, or years, shall lose and 
 forfeit the place wherein the waste is committed, and also treble da- 
 mages to him that hath the inherirance The statute speaks of terms 
 of years in the piural number; but though it be a penal law, whereby 
 treble damages and the place wasted shall be recovered, yet a tenant 
 for half a yeaf, being within the same mischief, shall be within the 
 same remedy, though it be out of the letter of the law. The expres- 
 sion of the statute is, that "lie sV.a'l forfeit the thing which he hath 
 wasted:" and it hath been determined that, unHer these words, the 
 place is also included. — If w..?te be done sparism, or here and there, 
 all over a wood, the whoie wood shall be recovered ; or if in several 
 rooms of a house, the whole house shall be for ei.ed; because it is im- 
 practicable for the rever loner to enjoy only the identical places wasted, 
 when lying interspersed with the other. But if waste be done only at 
 one end of a wood for perhaps in one room of a house, if that can be 
 conveniently separated nrom ihe rest), that part only is the locus vas- 
 tatus, or thing wasted, and that only shall be forfeited to the rever- 
 sioner (£). 
 
 The redress under this statute for this injury of waste is of two kinds, 
 preventive and corrective; the former by writ of estrepement ; the latter 
 by action of wrisre. 
 
 Estrepement. — Estrepement from extirpare, signifies to draw away the 
 heart of the ground, 0) flowing and sowing it continually, without 
 manuring or other good husbandry, whereby it is impaired ; and may 
 be also appiied to the cutting; down trees, or lopping them farther than 
 the law allows. The wcui is used for a writ, which lies in two cases: 
 the one by the statute of Gloucester, when a person having an action de- 
 pending, as a formedon, writ of right, z?c. sues to prohibit the tenant 
 from making waste during the suit; the other is for the demandant, 
 who is adjudged to recover seisin of the land in question after judg- 
 ment and before execution sued by the writ of habere facias possessionem, 
 
 (a) Cruise's Die. tit. a C. I s. 21. 3 Leon. iai. (£) Co. Lit. 54*
 
 448 Of Waste on the Statute of Gloucester. [Chap. XVI. 
 
 to prevent waste being made before he gets into possession. By an 
 equitable construction of the statute of Gloucester, and in advancement 
 of the remedy, it is now held that a writ of estrepement to prevent waste 
 may be had in every stage, as well of such actions wherein damages 
 are recovered, as of those wherein only possession is had of the lands ; 
 lor perhaps the tenant may not be able to satisfy the demandant his full 
 damage. In an action of waste itself, therefore (of which hereafter), 
 to recover the place wasted and also damages, this writ will lie as well 
 before as after judgment, for the plaintiff cannot recover damages for 
 more waste than is contained in his original complaint : neither is he at 
 liberty to assign or give in evidence any waste made after suing out 
 the writ : it is therefore reasonable that he should have this writ of pre- 
 ventive justice, since he is in his present suit debarred of any further 
 remedy (a). 
 
 If a writ of estrepement forbidding waste be directed and delivered to 
 the tenant himself, as it may be, and he afterwards proceeds to commit 
 waste, an action may be carried on founded upon this writ, wherein 
 the only plea of the tenant can be non fecit vastwn contra prohibitionem, 
 and if upon verdict it be found that he did, the plaintiff may recover 
 damages and costs, or the party may proceed to punish the defendant 
 for the contempt (b). 
 
 This writ lies properly where the plaintiff in a real action shall not 
 recover damages by his action, and as it were supplies damages ; for 
 damages and costs may be recovered for waste, after the writ of estre- 
 pement is brought (<:). 
 
 By virtue of either of these writs, the sheriff may resist those that 
 do, or offer to do waste ; and if otherwise he cannot prevent them, he 
 may lawfully imprison the wasters, or make a warrant to others to im- 
 prison them ; or, if necessity require it, he may take the posse comitatus 
 to his assistance (d). 
 
 Writ of Waste. — The writ of waste is also an action partly founded 
 on the common law, and partly upon the statute of Gloucester, and may 
 be brought by him that hath the immediate estate of inheritance, whe- 
 ther it be fee-simple or fee-tail •, provided the reversion continue with 
 him, in the same state in which it was at the time of the waste done, 
 and be not granted over ; for though he take the estate back again, the 
 action is gone, because the estate did not continue (e). This is a re- 
 medy and yet a penal law, and therefore shall have a fa\ourable con- 
 struction (f)- 
 
 A purchaser (as contradistinguished from one by descent) shall have 
 an action of waste (g). 
 
 (j) F. N. B. 3 Inst. 328. 5 Rep. 115. (/,) Moor.ioo. (0 Ibid. 2 Inst. 32S, 
 
 (<Q Ibid. 329, (.-) a Wood's Inst. 95 1, (/) 3 Mod, 93, (g) Ibid,
 
 Sect. I.] Of Waste on the Statute of Gloucester. 449 
 
 So, a parson, &V. for it is the dowry of the church. 
 
 But if a lease be made to A. for life, remainder to B. for life, remain- 
 der to C. in fee, no action of waste lies against the first lessee during 
 the estate in the mesne remainder, for then his estate would be de- 
 stroyed ; otherwise if B. had a mesne remainder for years, for that 
 would have been no impediment, the recovery not destroying the term 
 tor years. But though B. cannot bring waste, he may have an injunc- 
 tion ;'unless it be meliorating waste, as by building houses, bV.) : but 
 the reversioner or remainder-man in fee must be made a party, for pos- 
 sibly they may approve of the waste (a). 
 
 If 'he lessee for years commit waste, and his term expires, yet the 
 lessor shall have an action of waste for the treble damages (b). If a 
 bishop make a lease for life or years, and die, the lessee, the fee being 
 void, doth waste, the successor shall have no action of waste (c), Te- 
 nant in common need not join in action of waste (d). This action is 
 also maintainable in pursuance of the stat. of Westm. 2. (13 E. I. c. 22.) 
 by one tenant in common of the inheritance against another, who makes 
 waste in estate holden in common : the equity of which statute extends 
 to joint-tenants • but not to copartners, because they, by the old law, 
 might make partition ; but tenants in common and joint-tenants could 
 not, whereof the statute gave them this remedy, compelling the de- 
 fendant either to make partition and take the place wasted to his own 
 share, or give security not to commit any farther waste. But these te- 
 nants in common and joint-tenants are not liable to the penalties of the 
 statute of Gloucester, which extends only to such as have life estates and 
 do waste to the prejudice of the inheritance (e). 
 
 The grantee of a reversion shall have waste : therefore if the lessee 
 of land opens a coal mine and grants all his interest, excepting the 
 mine, waste will lie by an assignee of the reversion against the grantee 
 for coals afterwards dug by the grantor ; for the exception being of a 
 thing with which he had not power to meddle, was void (f). 
 
 A proviso in a lease that the lessor shall cut down trees, is a cove- 
 nant and not an exception : therefore the heir may maintain waste if 
 they be :ut down (g). But if a lease be made excepting the wood and 
 timber, an action of waste will not lie against the lessee for cutting 
 it do-vn, because not demised. If the termer assign his term, except 
 the trees- and afterwards the trees are cut down, waste will lie against 
 the assignee, for the execution was void: but if tenant for life make 3 
 lease for years, he may except the trees, because he still remains tenant 
 and is chiugjable in waste (h). 
 
 Waste lies against an executor de son tsri of a term of years or of 
 
 (.,-> 3 Mod. 93. 
 
 
 V) 2 
 
 P. Wms. n. F. 
 
 (, 
 
 ;) Co. Lit 
 
 -3J6. 
 
 (d) i Mod. 6*. 
 
 .;'/) 2, I-1S1-. 433. 
 
 
 (/) 
 
 Co. Li;. 52. in n 
 
 , Cro. 
 
 Eliz. 
 
 
 (g) Ibid. 6g<p, 
 
 ('0 Bull. N, 1 J . 
 
 no. 
 
 
 G e 
 
 
 

 
 450 Oj Waste on the Statute of Gloucester. [Chap. XVI. 
 
 other chattels, by stat. 30, C. 2. c. 7, and 4 iff 5 W. iff AL c. 24. 
 s. 12. 
 
 An occupant shall be punished for waste. — So, if the tenant for life 
 or years, or their assignee make a grant over, and notwithstanding 
 take the profits, an action of waste lies against him, by him in the re- 
 version or remainder by the statute (a). 
 
 One may have an action of waste upon several leases, and upon 
 several grants of a reversion (b). 
 
 By the custom of London, waste lies at common law, for waste in 
 houses there; and now since the statute of Gloucester) waste lies there 
 in cases within the statute as well as in others; for though the statute 
 gives an action of waste in cases where it would not lie before, and 
 gives also treble damages et locum vastatum, yet it does not take away 
 the jurisdiction of any Court that before held plea of waste. — So a 
 writ of estrepement lies in London pendente placitc, or after judgment and 
 before execution, to stay waste {c). 
 
 No person is entitled to an action of waste against a tenant for life, 
 but he who has the 'immediate estate of inheritance in remainder or re- 
 version, expectant upon the estate for life. If between the estate of 
 the tenant for life who commits waste and the subsequent estate of 
 inheritance there is interposed an estate of freehold to any person in 
 esse, then during the continuance of such interposed estate, the action 
 of waste is suspended ; and if the first tenant for life dies during the 
 continuance of such, interposed estate, the action is gone for ever. 
 But though while there is an estate for life interposed between the 
 estate of the person committing waste and that of the reversioner or 
 remainder-man in fee, the remainder-man cannot bring waste; yet ii 
 the waste be done by cutting down trees, itfe. such remainder-man in 
 fee may seize them, and if they are taken away or made use of before 
 he seizes them, he may bring trover: for in the eye of the law a remain- 
 der-man for life lias not the property of the thing wasted; and even a 
 tenant for life in possession has not the absolute property of it, but 
 merely a right to the enjoyment or benefit of it, as long as it is annexed 
 to the inheritance, of which i: is considered a part, and therefore it 
 belongs to the owner of the fee (d). 
 
 The action of waste is a mixed action: partly real, so far as it re- 
 covers land; and partly personal, so far as it recovers damages; for it 
 is brought for both of those purposes, and if waste be proved, the 
 plaintiff shall recover the thing or place wasted, and also treble damages 
 by the statute of Gloucester. 
 
 The process in the action of waste is, first a writ of summons made 
 by the cursitor of the county where the land lies, and on the return 
 
 (a) Co. Lit. 54. (I) Cro. Jae. 33c. Poph. 15. (0 Com. Die. \V,btc. (B. 1.) 
 
 'i\ Ct. Lit. :i'i. b. :\ 2.
 
 Sect. II. ] Of Waste on the Statute of Gloucester. 451 
 
 of tlus writ the defendant may essoin and the plaintiff adjourn, &e. 
 Then a pone is made out by the filazer of the county, on the return 
 of which a distringas issues for the defendant to appear, and upon his 
 appearing the plaintiff declares, and the defendant pleads, life. 
 
 The writ of waste calls upon the tenant to appear and shew cause 
 why he hath committed waste and destruction in the place named to 
 the disinherison of the plaintiff. If the defendant makes default and 
 does not appear at the day assigned him, then the sheriff is to take 
 with him a jury of twelve men and go in person to the place alleged 
 to be wasted, and there enquire of the waste done and the damages, 
 and make a return or report of the same to the Court, upon which 
 report the judgment is founded (a). — But if the defendant appears to 
 the writ and afterwards suffers judgment to go against him by default, 
 or upon a nil dicet (when he makes no answer or puts in no plea in 
 defence), this amounts to a confession of the waste, since having once 
 appeared, he cannot pretend ignorance of the charge. The sheriff, 
 therefore, shall not go to the place to enquire of the fact, but shall 
 only (as in default in other actions) make enquiry of the quantum of 
 damages (b). 
 
 In waste the plaintiff must shew how he is entitled to the inheri- 
 tance -, therefore, if he counts upon a lease by himself, he must she%v 
 his seisin in fee, and demise to the defendant (r). 
 
 In every case the plaintiff in this action must shew his title. Thus, 
 if he claim by fine, he must plead the fine and the uses of it ; if by 
 common recovery, he must shew the recovery and uses : so, if by 
 grant of the reversion, he must shew how he claims by assignment ; 
 and if the husband and wife in right of the wife sue, they must allege 
 the reversion in both: so, if the plaintiffs sue as parceners or joint- 
 tenants, the declaration should shew that they are so (d). 
 
 If, however, the plaintiff conclude ad exhareditationem, it supplies 
 the omission of the estate of which lie was seised, after verdict: so if 
 he shews the special matter it is sufficient, though he does not name 
 himself assignee: so, if the writ is general, cujus hares the plaintiff is, 
 though he has a special inheritance (e). 
 
 If the plaintiff has the reversion, he shall say that the defendant 
 holds of him : but it is otherwise, if waste be brought by him in re- 
 mainder : or by the lord who has by escheat, for there is no tenure of 
 him (/). 
 
 The plaintiff must always charge the defendant in the tenet, or in the 
 tenuit ; for there is no other form : and must charge him as assignee, 
 executor, life. So, he must charge him by virtue of the lease by which 
 he is possessed : as, if the defendant be in by devise, he must charge 
 
 CO Poph. 24. (b) Cro. Eliz. i3. 290. (..-) Com. Dig. tit. « Pleader," (3. O. 2 ) 
 (J) Ibid. CO Ibid. (/) Ibid. 
 
 G s 2
 
 i52 Of Waste on the Statute of Gloucester. [Chap. XVI. 
 
 him as tenant ex kgatione. if defendant claims by a remainder for life 
 or for years, which is now in possession, he may be charged upon a 
 demise to him •, but if he be in by the statute of Uses, it is sufficient 
 to charge him generally, without saying on whose demise (a). 
 
 The declaration must assign the waste conformably to the writ: for 
 if the writ is for waste in land, and it is assigned in cutting wood, it 
 is bad ( ■■•). 
 
 If waste be assigned in land, it must say in what parish it lies (c). 
 
 It is sufficient to assign waste directly, without shewing the parti- 
 cular maimer in which it was committed; as, if it h in germins, it is 
 sufficient to say, that he destroyed the germins generally, without say- 
 in.'- that lie suiTeree the hedges of the wood to be neglected, whereby 
 cattle entered and ate the germins; and if a stranger commit the waste, 
 that fact need not be mentioned. 
 
 But the declaration must particularize the quality or quantity of the 
 waste; as if it is in cutting trees, ihe plaintiff must .how the number 
 of the trees. If the demise is of , moiety of a manor, and other lands, 
 and the waate assigned in wood, parcel of the premises, it is bad; for 
 it cannot be pared of the manor, and also of the other lands. 
 
 If trees be excepted out of a demise, waste cannot be committed 
 by cutting them down; and therefore ejectment cannot be brought as 
 for waste committed in or upon the demised premises (d). 
 
 A declaration in waste that the defendant ploughed up the land, which 
 was pasture, et sic vastum fecit, was held bad for uncertainty ; even 
 after verdict (e). — After verdict, nothing is to be presumed but what 
 is either expressly stated in the declaration, or necessarily implied from 
 those facts which are stated (f): for a verdict will cure ambiguity only, 
 but will not aid where the gist of the action is omitted to be laid in 
 the declaration (g). 
 
 The declaration must be ad exhareditatiown of the plaintiff: if he be 
 seised in right of his wife, it shall be ad exhzreditationem of the wife. 
 So, if there are several plaintiffs, there may be summons and sever- 
 ance; for it is a real action, and ad exhareditationem (/:). 
 
 The general issue to an action of waste, is "no waste done;" but 
 this admits nothing, but puts the whole declaration in issue; and may 
 be pleaded in all cas^s where there is no waste, as if destruction 
 happens by tempest, Co . It therefore the defendant plead mil waste 
 fait, and issue is taken thereupon, the plaintiff must prove his title as 
 laid in the declaration: he must likewise prove the kind of waste laid 
 in the declaration; and therefore if lie allege waste in cutting trees, 
 and the jury find that he stubbed them and did not cut them, it is 
 
 'V r -.-.. 1-; ;. t':t. " Pleader" (3. O. 3.) (''. Ibid. (3. O. 4.) U) Ibid. .'3. O. -.) 
 
 [J 8 Jv.irr, 19c. (?) 2 .Show. R. 2 '/; 1 T. R, 14J- ' -' ' ' - ■'■'■' ■' ' v- : . hi-
 
 Sect. I.] Of JVastc on the Statute of Gloucester". 4.33 
 
 variance (a). — Defendant may also, under the general issue give in 
 evidence any thing which proves that it is no waste ; as that it was by 
 tempest, &c. as before observed; but not that it was for repairs, or 
 that the plaintiff gave him leave to cut, or that he had repaired before 
 the action brought. Neither will it be any defence that a stranger did 
 it, for if the plaintiff should not have his action of waste, he would 
 be without remedy •, and the defendant may bring trespass against the 
 stranger, and recover his damages. But it would be a good plea to Say 
 that the plaintiff himself aid it (b). 
 
 If several wastes are assigned, and the defendant is not guilty of 
 part of any, he may plead " no waste done" to altogether, and need 
 net say to e\ cy part severally " no waste (rV' 
 
 If the tenant repairs before action brought, it is said, he in re- 
 version cannot have an action of waste ; but the ' '?.• t ca-vnor, in such 
 case, plead that he did no waste, but must plead the special mat- 
 ter ; (d) for 
 
 " No waste done" is no plea v. here the defendant has matter of justi- 
 fication, or excuse. Therefore, if there be a lease to A. for two years, 
 and afterwards a lease to B. for ten years, in waste against B. for waste 
 during rhe two years, he cannot plead cc no waste done (?)." 
 
 The defendant may plead in justification that he took for repairs ; as 
 for repair of the fences and other necessary uses : or, that he pulled 
 down 10 rebuild and repair the house, fences, &c. Therefore tenant 
 for life may justify cutting down timber upon the ground letter... and 
 repairing the house therewith, though he is not compellable to repair it 
 if it were ruinous when the lease was made (f). — But it is not sufficient 
 to say, that he took for repairs, if he does not add that he used or keeps 
 for repairs : for it is waste for a lessee to cut down timber-trees for the 
 purposes of repairs when there is no occasion, for were it otherwise, 
 every farmer might cut down all the trees growing upon the land under 
 pretence that he keeps them to employ about reparations whenever such 
 shall become necessary (g). 
 
 So he may plead that he took them for other necessary botes ; as for 
 wain-bote, cart-bote, plough-bote, or hedge-bote, or for gates, or stiles; 
 or for making utensils in husbandry ; or for fuel. So, he may plead 
 that they were dead wood, bearing neither fruit nor foliage (/'). 
 
 So, he may plead that the lease was without impeachment of waste : 
 or, that the plaintiff's ancestor made a bargain and sale of the trees to 
 him : or, that the lessor covenanted that the lessee might cut down 
 
 (a) Bull. N. P. 119. (4) Ibid. 120. (0 Com. Dig. tit. "Pleader" (3. 0. 7.) 
 
 [d) 1 Inst. 282. Cro.Jac. 658. 0) Com. Dig. nt ante. (/) Co. Lit. 54. b. 
 
 1 g) Com. Dig. ut ante (3. 0. II.) Cro. Eliz, 592. (J>) Com, Dig. ut ante, (3.0. 12.)
 
 454 Of Waste on the Statute of Gloucester. [Chap. XVI. 
 
 trees. — But it is no bar, that the lessor covenanted to repair, and that 
 he did it for him (a . 
 
 He may also plead, that he has rebuilt and since kept in repair: for 
 he may plead in excuse, that he repaired before action brought, for the 
 jury must view the place Masted : but " repaired pending the suit" is 
 no pica. So he may plead that it was so ruinous at the commencement 
 of his lease, that he could not repair (b). 
 
 So, he may plead a release from the plaintiff or one of the plaintiffs, 
 in bar : fur if waste be by two plaintiffs in the tenuity a release by one is 
 a bar to both : but where waste is in the tenet, a release by one plaintiff 
 bars himself only (c). 
 
 So, to waste in the tenuity he may plead accord with satisfaction (d). 
 
 So, the defendant may plead in abatement to the plaintiff's title, or 
 that the plaintiff has nothing in reversion ; but he ought to shew 
 how the reversion is devested, for " nothing in reversion,'' generally, 
 will be bad ; except where waste is brought by a grantee of the rever- 
 
 So, if the plaintiff's title fails pendente lite, the defendant may plead it 
 after the last continuance. 
 
 So, he may plead a mesne remainder-man still alive. 
 
 So, the defendant may plead no demise made to him : or, no demise 
 as to part : or, that wood was excepted by the demise. — So, that he 
 has nothing by the assignment of B. or that after the demise, the de- 
 fendant assigned, before which assignment no waste was done ( f). 
 
 To the plea of assignment before waste done, the plaintiff may re- 
 ply, that the assignment was by fraud, and he afterwards took the pro- 
 fits : and if the defendant rejoins, he must traverse the pernancy of the 
 profits, not the fraud (g). 
 
 In waste, if issue is joined, six jurors at the least ought to have a 
 view of the place wasted, otherwise the trial shall be staid •. if therefore 
 waste be assigned in several places, the jury may find " no waste done" 
 in a place of which they had no view, and they ought, it seems, to 
 have a view (as the venire facia: directs them to have), though the issue 
 be upon a collateral point, and the waste be confessed. Whether the 
 venire facias be returned or not, the Court may examine as to the fact 
 of the jury having viewed or not : for the return does not conclude the 
 parties : but it is not necessary, that the officer return upon the distrin- 
 gas jurat 'orum, that the jury have viewed ; or that he was present at the 
 view (A). 
 
 If however the waste be assigned in a wood sparsim, it is sufficient if 
 
 y) Cf m. Dig. ui ante (5. O. 4.) (h) Ibid. (3. O. 15.) (0 Ibid. (3. O. 8. 16.) 
 
 (d) Ibid. ( ) Hid. (3. O. ic.) (/) Ibid. (5. 0. 19.) Ibid. (3.0. 18.) 
 
 c ; d. (b) Com. Dig. tit. " Pleader." (3. O. 21.)
 
 Sect. I.] Of Waste on the Statute of Gloucester. 455 
 
 the jury view the wood, though they do not enter into it. So, if it be in 
 several rooms of a house. 
 
 Of the Judgment. — Touching the judgment in waste, if there be 
 judgment for want of an appearance upon the distringas by the stat. 
 IV. 2. c. 14. the sheriff taking twelve, cirY. shall go to the place wasted 
 and take inquisition of the damage, and upon the return thereof, there 
 shall be damage. 
 
 When the waste and damages are ascertained, either by confession, 
 verdict, or enquiry of the sheriff, judgment is given in pursuance of 
 the statute of Gloucester, c. 5. that the plaintiff shall recover the place 
 wasted ; for which he has immediately a writ of seisin, provided the 
 particular estate be still subsisting; (for if it be expired there can be no 
 forfeiture of the land:) and also, that the plaintiff shall recover treble 
 the damages assessed by the jury ; which he must obtain in the same 
 manner as all other damages in actions personal or mixed are obtained, 
 whether the particular estate be expired, or be still in being (a). 
 
 In an action of waste upon this statute against the tenant for years, 
 for converting three closes of meadow into garden ground, if the jury 
 give only one farthing damages for each close : the Court (who have a 
 kind of discretionary power therein) will give the defendant leave to en- 
 ter up judgment for himself (b). 
 
 By stat. 8 C5 9 W. 3. c. 11. s. 3. a plaintiff shall have costs in ail 
 all actions of waste, where the damages found do not exceed twenty 
 nobles; which he could not ac common law. 
 
 Trover for Waste.— "Waste is a tort, and the remedy lies at law. 
 Therefore where timber is cut down, trover may be brought to recover 
 the value. — In an action of waste, the place wasted is recovered ; in 
 action of trover, damages (.'). 
 
 Trover may be brought against the executor of the person who con- 
 verts the timber to his own use (d). 
 
 But though trover will lie at law, it maybe very necessary for the 
 party who has the inheritance to bring his bill in equity, because it may 
 be impossible to discover the value of the timber, it being in possession 
 of and cut down by the tenant [e\ 
 
 Yet whether a bill for an account may be brought by the lord of a 
 manor, or a lessor, against a tenant for timber felled, seems to be 
 doubtful (/). 
 
 (<?) 3 BI. Com. 220. (b) 2 Bos. k Ful. 86. (c) 3 Atk. 2G3. 755. 
 
 [' Ibid. 637. CO *P. Wms. 241. (/) 1 F. Wms. 4:6- a<F. 3 Atk. 164. «£•
 
 C +5(5 3 
 
 Section II. Of the Action upon the Casein the Nature 
 
 of Haste. 
 
 Since the statute of Gloucester^ which gives no more costs than da- 
 mages, it is usual to bring trespass or case in the nature of waste in- 
 stead of the action of waste. 
 
 An action on the case does not lie for permissive waste (a). 
 
 Either an action on the case or trespass will lie, at the plaintiff's 
 election, against his tenant for despoiling the premises : and case is the 
 better action to recover as much as he may be damnified, because he is 
 subject to an action of waste (b . 
 
 One tenant in common cannot maintain an action on the case in the 
 nature of waste against another tenant in common (in possession of the 
 whole, having a demise of the moiety from the first) for cutting down 
 trees of proper age and growth for being cut ; for it is no hurt to the in- 
 heritance. If however the trees were not fit to be cut, he might main- 
 tain such action (c). 
 
 Tenant at will has no power to commit any kind of voluntary waste: 
 but he is net within the statute of Gloucester : and therefore an action of 
 waste lies against him (d). If, however, a tenant at will cut down timber- 
 trees, or pull down houses, the lessor shall have an action of trespass 
 against him (?). 
 
 So, with respect to permissive waste ; no remedy whatever lies 
 against tenant at will j for he is not bound to repair or sustain houses 
 like tenant for years (f). 
 
 It is so notoriously the duty of the actual occupier to repair the 
 fences, and so little the duty of the landlord, that without any agree- 
 ment to that effect, the landlord may maintain an action against his te- 
 nant for not so doing, upon the ground of the injury done to the inhe- 
 ritance (g). 
 
 A tenant from year to year is only bound to fair and tenantable re- 
 pairs, so as to prevent waste or decay of the premises, not to substan- 
 tial ones (h). 
 
 Section III. Of the Remedies in Equity, in the Case of 
 
 Waste. 
 
 On the subject of waste, the Court of Chancery has, it should seem, 
 a concurrent jurisdiction with the Courts of common law. 
 
 (a) i Bos & Pul. N. R. 29c. (4) Cro. Car. 187. (c) % T. R. 145. 
 
 (d) 1 Cruise's Dig. tit. 9. s. 13. (f) 1 Inst. 57. a. 
 
 (/) Ibid. s. i 4) 15. 3 Rep. 13. b. 1 Show. 2?S. (g) 4 T. R. 319. 
 
 th) 2 Esp. R, 590.
 
 Sect. III.] Of the Remedies in Equity, 8$c. 4.5/ 
 
 The relief afforded by that Court, is in many cases the most eligible, 
 and in seme, absolutely necessary to be sought, in order to prevent the 
 commission of threatened or impending waste : for the Court will stay 
 waste upon application by bill brought for that purpose praying an in- 
 junction. 
 
 At the common lav^ a prohibition went out of Chancery, against 
 the tenant by the curtesy, in dower, or as guardian, at the prayer of 
 him who had the inheritance, to inhibit waste,, and that before waste 
 committed (a). 
 
 Respecting the remedy of the remainder- man or reversioner (or in 
 the case of copyholds, of the lord) against the tenant about to commit, 
 or committing waste, although a Court of Equity will not assist a for- 
 feiture, yet the tenant in possession shall be restrained in equity from 
 waste in all cases in which waste is punishable by law ; and for this 
 purpose, an injunction will be granted before the bill is filed. Also 
 an injunction will be granted to stay waste in behalf of an infant in 
 ventre sa mere. Equity will likewise, in some particular cases, restrain 
 the tenant from committing waste, where he is dispunishable by law, 
 either by the nature of the estate, or by express grant <( without im- 
 peachment of waste :" but where, by agreement of the parties, the 
 lease is made without impeachment of waste, equity will not restrain 
 the lessee from cutting timber, ploughing, opening mines, &c. though 
 such lessee shall be restrained from pulling down houses, defacing 
 seats, &c. (l>). 
 
 With respect to threatened or impending waste ; the act of sending 
 a surveyor to mark out trees, is a sufficient ground for an injunc- 
 tion (c). 
 
 So, a threat to open mines, entitles a party to come into this Court to 
 restrain him (d). Even if a tenant for life insists on a right to do 
 waste, and has none, the reversioner may have an injunction, though 
 no proof of waste appear (e). 
 
 When a bill is filed to restrain waste or any other injury very detri- 
 mental, so that it is necessary to lose no time, an injunction may be 
 applied for immediately after the bill is filed, by special motion sup- 
 ported by affidavit of the grievance [f). 
 
 So now an injunction shall be granted upon an affidavit of waste com- 
 mitted, to inhibit any waste to be committed by tenant for life or years ; 
 as to inhibit meadow, or other pasture, not ploughed within twenty 
 years, being ploughed; but not against a lessee, who had agreed to pay 
 2os. per acre per ami, increase of rent, if he ploughed a meadow, £sV. 
 
 (a) Com. Dig. tit. « Chancery." (D. u.) (i) 2 Eq. Ca. Abr. 399. in n. 
 
 (0 J Ves. jun. 688. 00 % Atk. 18:. 0) Barnard, 49*> 
 
 (/) Park An. 47.
 
 458 Of the Remedies in Equity, [Chap. XVI. 
 
 So it will be granted to inhibit antient inclosures being thrown down ; 
 or houses being pulled down (a). 
 
 So, against tenant after possibility, &c. or him who in respect of a 
 trust, £sV. is not liable to an action of waste (b). 
 
 So, against tenant for life, at the suit of the remainder-man in fee, 
 though there is an intermediate remainder : and if tenant for life, with- 
 out impeachment of waste, or any other lessee, has cut timber, so as 
 not to leave sufficient for repairs, the Court will restrain him from cut- 
 ting any more without leave of the Court (c). Tenant for life, with- 
 out impeachment of waste, will be restrained also from cutting down 
 trees in lines or avenues, or ridings in a park, whether planted or grow- 
 ing naturally, or trees not of a proper growth to be cut (d) •, and though 
 he be tenant for life, with liberty to cut timber " at seasonable times," 
 he is not to cut trees planted for ornament or shelter to the mansion- 
 house, or sapling trees not fit to be cut or felled for timber (c). 
 
 So, he will be restrained from pulling down the antient and capital 
 house, and not only so, but the Court will compel him to put it in the 
 same plight in which he found it if). 
 
 But the Court of Chancery, it is said, will not decree a tenant for 
 life to repair, or appoint a receiver with directions to repair (g). 
 
 However, where a jointress gave leave to the next in remainder for 
 life without impeachment of waste, to cut timber on the jointure es- 
 tate, and he dying without issue, the remainder-man over in tail having 
 acquiesced in and encouraged the so doing, he was restrained from an 
 action of waste against the jointress [h). 
 
 Where the plaintiff and defendant in possession were tenants in com- 
 mon, an injunction to stay waste was refused: but on affidavit of the 
 defendant's insolvency it was granted (z). 
 
 The Court will grant an injunction at the suit of a ground landlord 
 to stay waste in an under lessee, who holds by lease from the original 
 landlord ; upon a certificate being produced of the waste (k). 
 
 So, the mortgagor may have an injunction to stay waste against the 
 mortgagee, if he cut down timber, and do not apply the money arising 
 from the sale in sinking the interest and principal (/). So, where the 
 mortgagor commits waste, the Court will grant the mortgagee an in- 
 junction -, for they will not suffer the mortgagor to prejudice the in- 
 cumbrance (?«). 
 
 So, though a rector may cut down timber for the repairs of the par- 
 sonage house or chancel (but not for any common purpose), and is en- 
 titled to botes for repairing barns and out-houses belonging to the par- 
 
 (o) C im. Dig. tit. " Chancery." (D. u.) (&) Ibid. ('J Ibid. 
 
 (:.') 3 Atk. 215- 755- (0 5 Br. K. 549- (/) Com. Dig. ut ant:. Prac. Ch. 45 '■ 
 
 {£) Ambl. 395- (''0 * Ves. 396. («) 3 Br. R. 6zi. 
 
 (i) 3 Atk. 723. Arab!. 105. (/) Ibid. (»/) Ibid. & Jio.
 
 ^'ect. III.] in thz Case of JVastc. 459 
 
 sonage, an injunction to stay waste in cutting down timber in the 
 church-yard, will be granted till the cause be heard (a) ; and an injunc- 
 tion was granted to stay waste against the widow of a rector, at the 
 suit of the patroness, during a vacancy (b). 
 
 An injunction to stay waste may be granted in favour of a child in 
 ventre sa mere (f). 
 
 But where a clause " without impeachment of waste," is inserted in 
 a lease or demise for years, it will have the same effect as when it is in- 
 serted in a conveyance of an estate for life •, and the Court of Chancery 
 will restrain the import of it, in the same manner as in the case of an 
 estate for life (d). 
 
 The Court will not grant an injunction to stay waste in digging mines 
 where the defendant sets up a right to the inheritance of the estate, till 
 the answer is come in or the defendant has made default in not putting 
 in his answer, for such injunctions are never granted before the hearing, 
 unless the defendant had only a term in the estate, for years, or for life, 
 and the reversion was in the plaintiff (e). 
 
 The lord of a manor may bring a bill for an account of ore dug, or 
 timber cut, by the defendant's testator. Indeed, as to the property of 
 the ore or timber, it would be clear even at law that if it came to the 
 executor's hands, trover would lie for it ; and if it had been disposed of 
 in the testator's life-time, the executor, if assets are left, ought to an- 
 swer for it : but it is stronger here, by reason that the tenant is a sort 
 of fiduciary to the lord, and it is a breach of trust, which the law re^ 
 poses in the tenant, for him to take away the property of the lord {/). 
 
 A bill, however, for a mere account of timber cut down, was dis- 
 missed by Lord Hardiuicke, as being the proper subject of an action at 
 law ; but his Lordship added, that there were many instances where 
 the Court had decreed an account in the case of mines, which they 
 would not have done in that of timber; because the digging of mines is 
 a sort of trade (g). 
 
 But as to the trespass of breaking up meadow, or antient pasture 
 ground, it dies with the person ; wherefore no bill will be entertained 
 for an account thereof (£). 
 
 Neither is every common trespass a foundation for an injunction, 
 where it is only contingent and temporary : but if it continue so long as 
 to become a nuisance, in such case the Court will interfere and grant 
 an injunction to restrain the person from committing it (*'). 
 
 But the Court will award a perpetual injunction to restrain waste by 
 ploughing, burning, breaking, or sowing down lands (k). 
 
 (a) z Atk. 2-17. (b) 2 Br. R. 552. (O3Atk.au. 
 
 (d) i Cruise's Dig. tit. 8. s. 12. (0 3 Atk. 496. (/) 1 P. Wms. 406. 
 
 ( g) 3 Atk. 262. Amb. 54. s, 2. (b) I P, Wms, 407. (i) 3 Atk. zi. 
 
 09 4 Br. Ca. in Pari. 377-
 
 460 Of the Remedies in Equity, §c, [Chap. XVI. 
 
 So, an injunction shall go to restrain the defendant from injuring 
 fish ponds [a). 
 
 Where a bishop was directed by the Court of Chancery, to bring 
 trover in order to try the right as to certain ore dug and disposed of by 
 a tenant of a manor of which the bishop was lord ; upon trial thereof 
 it appeared that there never had been any mine of copper bcfo v c disco- 
 vered in the manor, wherefore the jury could not find that the custom- 
 ary tenant might by custom dig and open new copper mines ; so thaf 
 upon the production of the postea, the Court held that neither the te - 
 nant without the licence of the lord, nor the lord without consent of 
 the tenant, could dig in those copper mines, being new mines (b). 
 
 On motion to stay waste, a particular title must be shewn ; and the 
 motion should be made upon affidavit of the title, waste committed, and 
 a certificate of the bill filed (V). 
 
 (a) 2 Br. R. 64. U>) 1 P. Vv'ms. 408. (r.) 3 Atk. 496, Com. Dig. ut ant:.
 
 [ 461 ] 
 
 CHAPTER XVII. 
 
 Of the Landlord's Remedy against third Persons. 
 
 Section* I. By Action on the Case for Nuisances, to 
 the Injury of his Reversion. 
 
 Section II. By Action against the Sheriff, on Stat. 8. 
 Ann. c. 14. for removing the Tenant's 
 Goods under an Execution without pay- 
 ing a Year's Rent. 
 
 Section III. By Action on the Stat. 11 G. 2. c. 1Q. 
 
 for assisting the Tenant in a fraudu- 
 lent Removal of his Goods. 
 
 Section I. Action on the Case for Nuisances to the In- 
 jury to his Reversion. 
 
 VN action of trespass on the case lies for a nuisance to the habita- 
 tion or estate of another, by which remedy the landlord may 
 recover damages commensurate with the degree of injury that he has 
 sustained by the deterioration of that property of which the reversion 
 is in him. 
 
 Indeed, touching the remedies afforded to the landlord and the tenant 
 respectively for a nuisance to the thing demised, an action may be 
 brought by one in respect of his inheritance, for the injury done to the 
 value of it, and by the other, in respect of his possession (a). 
 
 As, if a man have an ancient house, and another build so near as to 
 darken his windows, he may have an action upon the case (b). 
 
 So, if a man build a new house, and afterwards grant the adjacent 
 soil,, and the grantee by an edifice upon it stop the lights of the other 
 
 ■ j) 4 Bur. 3141, (£) Com, Dig. tit, " Action, &c. for a Nuisance" (A.)
 
 462 Action on the Case for Nuisances, [Chap. XVII. 
 
 house, though it was not an antient house ; for if a man build a new 
 house upon part of his land, and afterwards sell the house to another, 
 neither the vendor, nor any other claiming under him, may stop the 
 lights: but if he sell the vacant ground to another, and keep the 
 house without reserving the benefit of the lights, the vendee may 
 build (a). 
 
 A custom that one may build upon a new foundation to the obstruc- 
 tion of antient lights, is void (b). 
 
 If the lights of the house be stopped up by throwing logs, C2rY. this 
 action will lie (c). 
 
 If a man fixes a spout to his own house, from whence the rain falls 
 into the yard of another, and hurts the foundation of his buildings; 
 this action will lie. —So, if a man dig a pit in his land, so near that 
 my land falls into the pit (<■/). 
 
 So, it lies against one who erects any thing offensive so near the 
 house of another, that it becomes useless thereby, as a swinesty, or a 
 lime-kiln, or a dye-house, or a tallow-furnace, or a privy, or a brew- 
 house, or a tan-vat, or a smelting-house, or a smith's forge (<?). 
 
 So, if a man erect a watch-house, stable, CSV. and put filth in it, to 
 the annoyance of a garden (/"). 
 
 So, if a parson permit the tithes to continue upon the soil, so that 
 the grass there is corrupted; or a vendee of ha 7, after the time agreed 
 for carrying it away (g). 
 
 So if a lessee over-charge his room with weight, whereby it falls 
 upon the cellar beneath -L). 
 
 So if a man who ought to inclose against my land, do not inclose, 
 by which the cattle of his tenants enter into my laud, and do damage 
 to me. But the action must be brought against the person in posses- 
 sion : for it is clear that an action on the case for not repairing fences 
 whereby another party is damnified, cannot be supported against the 
 owner of the inheritance, when it is in the possession of another 
 person. Deplorable indeed would be the situation of landlords, if they 
 were liable to be harrassed with actions for the culpable neglect of their 
 tenants (?'). 
 
 So an action upon the case lies, if a man erect a mill so near to my 
 antient mill, that the water to my mill is obstructed cr diverted. So. 
 if part only of the stream is diverted. So, if lie stop a water course, 
 whereby my land was overflowed. So, if water has been accustomed 
 to run to his well, and from thence to his house for his use, and one 
 diverts the stream from coming to the well (£). 
 
 So a man possessed of, an antient ferry may bring an action against 
 
 (a) Bui!. N. P. 7.7. Corn. Dig. ui ante. (c) Ibid. CO Had. 
 
 (: ; Ibid. (/) Ibid. [/) I! i. '.';) Ibid. '.'•: Bull. N. T. 74 
 
 rO Coin. D : t, ut ante.
 
 Sect. I.] to the Injury of his Reversion . 463 
 
 one who sets up a new ferry near to it; for if it be an antient ferry, he is 
 compellable to keep boats, &c. (a). 
 
 So, if without warrant one erect a market, to the prejudice of another 
 market (£). 
 
 So, if the soil, over which another has a way, be ploughed by the 
 tenant of the land, it is a nuisance (<:). 
 
 If the nuisance be to the damage of the inheritance, he in reversion 
 shall have an action for it; notwithstanding that plaintiff might have 
 an assise, or quod permittat (d). 
 
 The action lies as well against him who continues the nuisance as 
 against him who originally erected it: for though the party having re- 
 covered in one, cannot have another action for the same erection, he 
 may maintain a new action for the continuance of it (e). 
 
 So if A. recover damages against B. for stopping his lights, and 
 afterward B. assign the lands in which the nuisance was erected, A. 
 may maintain another action against B. for the continuance of the 
 nuisance; for before the assignment B. was answerable for all the con- 
 sequential damages, and it shall not be in his power to discharge him- 
 self by granting it over: yet A. may bring the action against the 
 assignee. Though formerly a distinction was taken, viz, where the 
 continuance occasions a new nuisance, and where the first erection has 
 done all the mischief; that in the first case the assignee is liable to an 
 action, but not in the second ( f). 
 
 So, if A. divert water by a pipe and cock to his house, an action lies 
 against his wife after his death, if she lives in the house, and uses the 
 the water, for every turning of the cock is a new nuisance (g). 
 
 So, if a man erect a house or mill to the nuisance of another, every 
 occupier afterwards is subject to an action for the nuisance (h). 
 
 So, if a man recover against A. for the erection of a nuisance, he 
 may afterwards maintain an action against him, for the continuance 
 of it ; and this, although he had made a lease to another, for the 
 plaintiff might bring the action, notwithstanding his recovery for the 
 erection, against either the tenant for years or his under lessee, at his 
 election (i). 
 
 All these cases go upon this principle, that every man should so use 
 his own as not to damnify another ; for some damage must be proved in 
 order to sustain this action ; the mere act of diverting a water-course, Isfc. 
 not being sufficient, if it do no injury to the plaintiff's inheritance, or 
 possession (k). 
 
 Of the Declaration. — In art action upon the case for a nuisance, the 
 plaintiff must shew himself entitled to the thing to which the nuisance 
 
 (a) Bull. N. P. [75.] (b) Com. Dig. ut ante. (c) Ibid. (J) Com. Dig. ut ante. B. 
 
 (0 i Ld. Raym. 37c. (/} Er.il. N. P. 75- (g) Com - Dl 'i- tir - " Action, Sec. for a 
 
 nuisance." [A.] (£) Cro. fac SSS- (0 Salk ' 4 6c ' (i) BuIL N ' P ' 75 ' 6 Mod ' -' ?I4 ' ' 
 
 6
 
 4G4 Action on the Case for Nuisances, [Chap. XVII. 
 
 was done, at the time of the nuisance : as in this action for diverting 
 his water-course to his mill, he must shew, that he was seised of the 
 mill at the time: but a seisin in law is sufficient for this action (a). 
 
 Therefore, if the plaintiff allege that his father was seised and died, 
 and a discent to himself by virtue or which he was seised, without 
 saying that he entered, it will be well (b~). 
 
 But in such action the plaintiff need not set forth his title to the 
 premises; it is sufficient for him to shew that he was possessed of 
 them (c). 
 
 He ought, also, to shew that the diversion was a prejudice to his 
 mill: for as damage must be proved, such allegation is material (A). 
 
 So, he ought to allege a continuance of the nuisance to the time of 
 the action only, for adhuc continuation existit is ill ; for that goes to the 
 time of the declaration. But, if the declaration shews a continuing 
 nuisance, it is not material, though the first nuisance was before the 
 plaintiff was entitled (<?). 
 
 So, if the plaintiff allege, that his house, mill, oV. was an antient 
 house, l5c. without prescribing for it, or that it was antiently erected; 
 for that is tantamount ( / ). 
 
 So, a declaration for stopping lights is sufficient, thought it do not 
 say an antient messuage : and if the plaintiff allege that he was pos- 
 sessed of such a house, iffc. in which he ought to have so many lights, 
 tsV. without more, it is sufficient (g). 
 
 So, a declaration for diverting a water-course, which was used to 
 run to a well, and from thence to his house, is sufficient ; though it 
 do not say from what place it runs to the well. This was ruled after 
 verdict, for it ought to be proved (/'). 
 
 So, a declaration against a man for causing water to How through 
 pipes near the foundation of the plaintiff's house, and neglecting to 
 repair them, so that the water flowed through them and sapped the 
 foundation of the plaintiff's house, is unexceptionable after verdict, 
 though it do not expressly state that the pipes were the defendant's, 
 that he laid them there, or that he is bound to repair them (i). 
 
 Touching the pleas to this action, the general issue is, not guilty ; 
 which may be pleaded where case is brought for a nuisance in over- 
 hanging the plaintiff's house, &c. or for a nuisance in stopping his 
 lights (k). 
 
 So, the custom of the city of London, by which a man may build 
 upon an antient foundation against the lights of another; to which the 
 plaintiff may reply by denying the custom, which shall be tried by the 
 mouth of the Recorder (/). 
 
 (<i) Com, Dig. ut ante. [E. I.] (i) laid. (<:) 2 I, J. Raym. 1569. 
 
 (</) Ibid. (,) Ibid. (/) Ibid. ( r? ) Ibid, x Tidd's Pi'JCt. 396. 
 
 '^ ■> Id. Raym. 1.569. (?) Ibid. (I) ^o- T>L. ut ar .is. (F. 2.) (/) Ibid,
 
 Sect. II. J Of the Action against the Sheriff, §c. 465 
 
 But to an action upon the case For a nuisance the defendant cannot 
 plead, that being a blacksmith, he came to the house wherein he 
 dwells, by the advice of the plaintiff himself, and there erected a forge 
 for his trade (a). 
 
 In an action for diverting a water-course, the defendant pleaded, 
 that he was seised of two closes through which, iffc. and that he and 
 all those, &c. had used to water their cattle in the same water-course, 
 &c. and the Court held that one prescription could not be pleaded 
 against another, without a traverse : but if upon the general issue it 
 had been proved that the water was usually drunk up by the cattle of 
 the defendant, the plaintiff would have failed in his prescription [b). 
 
 If the verdict finds generally, that the house is not erected upon the 
 antient foundation, the whole shall be abated, though it exceed only a 
 foot {c). 
 
 Section - II. Of the Action on the Case against the 
 Sheriff for removing Goods under an Execution, without 
 paying a Years Rent, by Virtue of the Stat. 8 Ann. 
 c. 14. 
 
 Executions at common law took place of all debts that were not spe° 
 cific liens ; even of rents due to landlords. At length, it being thought 
 hard that landlords should not have something like a specific lien, Par- 
 liament gave them a remedy for one year's rent, but no more, because 
 vigilantibus et nov dormientibus jura subveni'ent (d). 
 
 The remedy in question is by action on the case by virtue of the stat. 
 8 Ann. c. 14. for the more easy and effectual recovery of rents reserved 
 on leases for life or lives, term of years, at will, or otherwise, by sect. 
 !. of which it is enacted, " That no goods or chattels whatsoever, ly- 
 ing or being in or upon any messuage, lands or tenements which are, 
 or shall be leased for life or lives, term of years at will, or otherwise, 
 shall be liable to be 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 landlord of the said pre- 
 mises or his bailiff, all such sum or sums of money as are or shall be 
 due for rent for the said premises at the time of the taking such goods 
 or chattels by virtue of such execution • nrovided the said arrears do 
 not amount to more than one year's rent : and in case the said arrears 
 
 (a) Com. Dig. ut ar.ii. (F. 3.) (t) Bull. N. P. 75. (*) Com. Dig. ut ante. 
 
 fd) a Wils, 141. 
 
 Hh
 
 466 Of the Action against the Sheriff, [Chap. XVII. 
 
 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 be- 
 fore the making of the Act ; and the sheriff or other officers are thereby 
 empowered and required to levy and pay to the plaintiff, as well the 
 money so paid for rent, as the execution money. 
 
 Sect. 8. " Provided always, that nothing in the Act contained shall 
 be construed to extend to hinder or prejudice her [his] Majesty, her 
 [his] heirs or successors, in the levying, recovering or seizing, any 
 debts, fines, penalties, or forfeitures due or payable to her [his] Ma- 
 jesty, l£c. but that it shall and maybe lawful for her [his] Majesty, C5wr. 
 to levy, recover, and seize such debts, cV. in the same manner as if 
 die Act had never been made." 
 
 This statute shall have a liberal construction : and the words (t party 
 at whose suit the execution is sued out," <s'c. shall be construed to 
 mean either the plaintiff or defendant, whose judgment and execution 
 it is (a). 
 
 The action lies by an executor or administrator against the bailiff of a 
 liberty for executing zJierifacias t zr\A removing the goods off the premises 
 before the landlord was paid a year's rent : for the testator or intestate 
 had an interest for which his executor or administrator may bring an 
 action (b). 
 
 But, where the goods were taken and the money levied before admi- 
 nistration taken out, it was held, that as execution was executed, that 
 is to say, as the goods were actually sold, the administrator came too 
 late. Poiuls, J. was however of opinion, it seems, that the adminis- 
 tration should have relation to the time of the death of the intestate, 
 because, by the ecclesiastical law, it is not to be granted till within 
 fourteen days of an intestate's death : but the rest of the Court denied 
 this proposition ; for relations which are but fictions in law, shall not, 
 they said, devest any right vested in a stranger mesne between the in- 
 testate's death and the administration. The statute, it is true, was 
 made for the benefit of landlords, and to prevent the tenant's setting up 
 a sham execution to defeat him of the rent. He has still the same re- 
 medy that he had before, and if he will have the additional remedy, 
 he must make himself capable of it, which the administrator here could 
 not. He could not demand the rent, it not being certain that he would 
 be administrator, for the ordinary might refuse, and the sheriff is not 
 obliged to wait and see if any body comes and demands the rent. He 
 cannot take notice what arrears there are ; but if the landlord 
 ccmes and acquaints him with it, then, and not till then, is he obliged 
 
 '..'.. a W;!;. 141. (i>) 1 Str, ZIZ- Tort. 359, 3C0.
 
 Sect. II. ] for removing Goods, fyc. 467 
 
 to see the year's rent satisfied before removal of the goods. If it should 
 be otherwise, it would be in the power of him that is entitled to admi- 
 nistration to defeat the plaintiff of his execution ; for suppose he never 
 takes administration, must the execution stand still ? If the landlord 
 himself had not demanded before removal, he had been too late : here 
 was no landlord at all, so that there could be no demand, and it is now 
 too late to ask it (a). 
 
 Therefore notice to the sheriff is necessary in order to subject - him to 
 an action for removing the goods before a year's rent be paid (b) j for 
 neither a plaintiff nor defendant has any right to go upon the premises, 
 and the law gives the entry to the sheriff only by virtue of the execu- 
 tion ; but after he has notice of rent being due to the landlord, he can- 
 not remove the goods before he has satisfied the landlord one year's 
 rent. The landlord shall have the like benefit of distress for one year's 
 rent as if there had been no execution at all : unless the rent be paid, 
 the sheriff must quit, and if he do not quit, a special action on the 
 case lies against him after notice of the rent due (r). — The want of al- 
 leging notice, however, is helped by the verdict (d). 
 
 The landlord's rent must be paid without any deduction ; the sheriff 
 therefore cannot claim poundage of him (e). 
 
 The remedy, as before observed, is for one year's rent and no more. 
 Therefore, where there are two executions, the landlord cannot have a 
 year's rent on each : for the intent of the Act was only to continue a 
 lien as to one year, and to punish him for his laches, if he let more run 
 in arrear (f). 
 
 If the goods seized be not sold or removed by the sheriff, so as to 
 transfer the property therein, but the defendant pays the debt and costs, 
 the landlord, though he has given notice and demanded the rent, is not 
 entitled in such case. 
 
 A bill of sale was made by the sheriff, and it was held to be a re- 
 moval of the goods taken by a writ of fieri facias (g). 
 
 If an extent comes in, the landlord cannot claim his rent although a 
 distress be taken the day before. — So, on extent or an outlawry, al- 
 though he had distrained three days previous to the entry, and motion 
 be made to be paid under the statute ; but this is denied. If a distress 
 be taken October 29, and an extent dated November 4, and corn, lSc, 
 seized, the landlord cannot have his rent, for no property was devested 
 by the distress, and they were in the landlord's hands by way of pledge; 
 but an attachment was refused, although it was a contempt to oppose 
 the extent (b). 
 
 {a) i Str. 97. (i) Ibid. & lie,. (0 2 Wils. 141. (d) 1 £tr. 214. 
 
 (c) Ibid. 643. (/) 2 Str. 1024. (g) Barn. 211. 
 
 (Jj) Imp. Sheriff. 170. &c. Burn's just. tit. " Distress," xvli. 
 
 Hh 2
 
 46S Of the Action against the Sheriff, Sec. [Chap. XVII. 
 
 An immediate extent against the king's debtor tested after a distress 
 taken for rent justly due to the landlord, with notice to the tenant being 
 the king's debtor, and appraisement cf the goods and chattels, but be- 
 fore sale, shall prevail against the distress (a). 
 
 A distinction has been taken between proceedings at the suit and for 
 the benefit of the crown, and an outlawry in a civil suit (b) : and in 
 the latter instance it has been ruled that " the landlord ought to be sa- 
 tisfied a year's rent, because a capias utlagatum at the suit of the party i:-: 
 to be considered only as a private execution," but if the outlawry be re- 
 versed, it would be otherwise (c). 
 
 A commission of bankrupt is not considered as an execution quoad 
 hoc: therefore, as a landlord may on the one hand distrain for his whole 
 rent after assignment or sale by the assignees, if the goods are not re- 
 moved, so on the other hand, if he suffer the assignees to sell off the 
 goods, he is not entitled to his rent, but must come in pro rata with the 
 ether creditors under the commission (d). 
 
 The ground landlord of a house, in which an under-lessee dwelt, 
 against whom an execution was sued out, is not within the statute, 
 ■which extends only to the immediate landlord (e). 
 
 In an action against the sheriff for taking goods without leaving a 
 year's rent, the declaration need not state all the particulars of the de- 
 mise : but if it do, and they are not proved as stated, there shall be 
 a nonsuit. The distinction is between that which may be rejected as 
 surplusage which might have been struck out en motion, and what 
 cannot. — Where the declaration contains impertinent matter, foreign to 
 the cause, and which the Master, on a reference to him, would strike 
 out (irrelevant covenants for instance,) that will be rejected by the 
 Court, and need not be proved. But if the very ground of the action 
 is mis-stated, as where you undertake to recite that part of a deed on 
 which the action is founded, and it is mis-recited, that will be fatal : 
 for then the case declared on is different from that which is proved, and 
 you must recover secundum allegata et probata (/)• 
 
 The landlord is not always driven to this action for his remedy, for 
 there is a shorter way, by motion to the Court, that he may have resti- 
 tution to the amount of the goods ihe sheriff has sold ; as in the prin- 
 cipal case, in which the bailiff became a wrongdoer immediately after 
 he had notice of rent being due to the landlord (g). 
 
 Instead of bunging an action against the sheriff, &c. when the goods 
 are sold after notice, the best way for the landlord is to move the Court, 
 
 («} Park. R. 112. 2 Ves. 188. .'•) Uny. Sheriff. * 71. (e) 7 T. R. 264. 
 
 (J) 1 Atk. igj. (;j z oti'. -S/. \f) Doug. 665. 1 T. R. 236.
 
 Sect. III.] The Landlord's Remedy, §c. 469 
 
 that he may have restitution to the amount of the goods which the 
 sheriff has sold, if they amount to less than a year's rent, or if they 
 amount to more, then to have so much as will satisfy a year's rent [a). 
 
 On motion to have rent paid out of the money levied, it appeared 
 that the sheriff's warrant on the execution, after it was sealed, had 
 been altered, and a new bailiff's name inserted. Per Cur. The war- 
 rant being altered, no goods are taken in execution thereby. Let the 
 bailiff and attorney privy to the alteration, shew cause why an attach- 
 ment should not issue against them \b). 
 
 Section III. The Landlord's Remedy on the Statute 11 
 Geo. 2. c. ]$. touching Goods fraudulently carried off 
 the Premises. 
 
 The statute ii G. 2. r. 19. s. I. enacts that " In case any tenant 
 vr tenants, lessee or lessees, for life or lives, term of years, at will, 
 sufferance, or otherwise, of any messuages, lands, tenements, or 
 hereditaments, upon the demise or holding whereof any rent is re- 
 served, shall friuduienrly or clandestinely convey away or carry off or 
 from such premises, his, her, or their goods or chattels, to prevent 
 the landlord or lessor, landlords or lessors, from distraining the same 
 for arrears of rent so reserved, it shall be lawful to or for every land- 
 lord or lessor, landlords or lessors, or any person or persons by him, 
 her, or them for that purpose lawfully impowered, within the space of 
 thirty days next ensuing such conveying away or carrying off such, 
 goods or chattels, to take and seize such goods and chattels wherever 
 the same shall be found, as a distress for the said arrears of rent; and 
 the same to sell or otherwise dispose of, in such manner as if the said 
 goods and chattels had actually been distrained by such lessor or land- 
 lord, lessors or landlords, in and upon such premises for such arrears 
 of rent." 
 
 Sect. 2. tf Provided always that no landlord or lessor, or other per- 
 son entitled to such arrears of rent, shall take or seize any such goods 
 or chattels for the same which shall be sold bond fide, and for a valuable 
 consideration, before such seizure made, to any person or persons not 
 privy to such fraud as aforesaid." 
 
 By sect. 3. "To deter tenants from such fraudulent conveying away 
 their goods and chattels, and others from wilfully aiding or assisting 
 therein, or concealing the same, it is enacted that if any person or 
 
 (a) 2 Sell. Pract. 570. (i>) Bsr. 199.
 
 4-70 The Landlord's Remedy [Chap. XVII. 
 
 persons shall wilfully and knowingly aid and assist any such tenant or 
 lessee in such fraudulent conveying away or carrying off of any part 
 of his or her goods or chattels, or in concealing the same, all and 
 every person and persons so offending shall forfeit to the landlord 
 or landlords, lessor or lessors, from whose estate such goods and chat- 
 tels were fraudulently 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 in any of his Majesty's 
 Courts of Record at Westminster, or in the Courts of Session in the 
 counties palatine of Chester, Lancaster, or Durham, respectively, or in 
 the Courts of Grand Sessions in Wales, wherein no essoin, protection, 
 or wager of law shall be allowed, nor more than one imparlance." 
 
 Sect. 4. " Provided always, that where the goods and chattels so 
 fraudulently carried off or concealed shall not exceed the value of 50/. 
 it shall be lawful for the landlord or landlords, from whose estate such 
 goods and chattels were removed, his, her, or their bailiff, servant or 
 agent, in his, her, or their behalf, to exhibit a complaint in writing 
 against such offender or offenders, before two or more justices of the 
 peace of the same county, riding, or division of such county, residing 
 near the place whence such goods and chattels were removed, or near 
 the place where the same were found, not being interested in the lands 
 or tenements whence such goods were removed; who may summon 
 the parties concerned, examine the fact, and all proper witnesses upon 
 oath, or if any such witness be one of the people called Quakers, upon 
 affirmation required by law; and in a summary way to determine, 
 whether such person or persons be guilty of the offence with which 
 he or they are charged ; and to enquire in like manner of the value of 
 the goods and chattels by him, her, or them respectively so fraudu- 
 lently carried off cr concealed 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 ap- 
 point: and in case the offender or offenders, having notice of such 
 order, 'hall refuse or neglect so to do, may and shall, by warrant 
 under their hands and seals, levy the same by distress and sale of the 
 goods and chattels of the offender or offenders, and for want of such 
 distress, may commit the offender or offenders to the house of correc- 
 tion, there to be kept to hard labour, without bail or mainprize, for 
 the space of six months, unless the money so ordered to be paid as 
 aforesaid shall be sooner satisfied." — Sect. 5. " Provided always that it 
 shall be lawful for any person who thinks himself aggrieved by such 
 order of the said two justices, to appeal to the next General or Quarter
 
 Sect, III.] on the Statute 11 G. 2.c. 19. 4*1 
 
 Sessions, for the same county, who may and shall hear and determine 
 such appeal, and give such costs to either party as they shall think rea- 
 sonable, whose determination therein shall be final." — Sect. 6. «* Provided 
 also, that where the party appealing shall enter into recognizance with 
 one or two sufficient surety or sureties in double the sum so ordered to 
 be paid, with condition to appear at sucli General or Quarter Ses- 
 sions, the order of the said two justices shall not be executed against 
 him in the mean time." 
 
 By sect. 7, it is further enacted, " That where any goods or chattels 
 fraudulently or clandestinely conveyed or carried away by any tenant or 
 tenants, lessee or lessees, his, her, or their servant or servants, agent 
 or agents, or other person or persons aiding or assisting therein, shall 
 be put, placed, or kept in any house, barn, stable, out-house, yard, 
 close or place locked up, fastened, or otherwise secured, so as to pre- 
 vent such goods or chattels from being taken and seized as a distress for 
 arrears and rent, it shall be lawful for the landlord or landlords, lessor 
 or lessors, his, her, or their steward, bailiff, receiver, or other person 
 or persons empowered to take and seize, as a distress for rent, such 
 goods and chattels (first calling to his, her, or their assistance the con- 
 stable, headborough, borsholder, or other peace officer of the hundred, 
 borough, parish, district, or place, where the same shall be suspected 
 to be concealed, who are hereby required to aid and assist therein ; and 
 in case of a dwelling-house, oath being first made before some Justice 
 of the peace of a reasonable ground to suspect that such goods or 
 chattels are therein) in the daytime to break open and enter into such 
 house, barn, stable, out-house, yard, close, and place, and to take and 
 seize such goods and chattels for the said arrears of rent, as he, she or 
 they might have done by virtue of this or any former Act, if such goods 
 and chattels had been put in any open field or place." 
 
 Justices either of the county from which the tenants fraudulently re- 
 move goods, or of that in which they are concealed may convict the of- 
 fenders in their respective counties (a). 
 
 But in order to justify the landlord in seizing, under this statute, 
 within thirty days, goods removed off the premises, as a distress for 
 rent wherever found, the removal must have taken place after the rent 
 became due, and must have been secret, and not open and in the face 
 of day, as in such case the removal could not be said to be clandestine, 
 within the meaning of the statute (b). 
 
 An averment in a declaration in an action of debt on Sect. 3. of this 
 statute, to recover double the value of goods removed in order to pre- 
 vent a distress, that " a certain sum was due for rent" before the goods 
 
 ;■;: i aid, R. 156. (b) ~ Esp. R.16.
 
 472 The Landlord's Remedy, 8§c. [Chap. XVII, 
 
 were removed, need not be precisely proved as laid : for whether 5/ or 
 any other sum were in arrear is perfectly immaterial ; the damages not 
 being to be measured by the quantity of rent, but by the value of the 
 goods removed. Besides, the gist of the action is the fraudulent re- 
 moval of the goods from the premises in order to defeat the distress ; 
 it was therefore immaterial to the defendants whether one sum or ano- 
 ther were due for rent, for in either case they are guilty of a tort. 
 Where the variance, there! ore, does not consist in any part of the con- 
 tract, but in an averment of matter subsequent to the contract, such 
 averment being merely a matter of inducement to the action, need not 
 be precisely proved (<?). 
 
 So the notice of distress may be abandoned ; for a party may distrain 
 for rent and avow for fealty (b). 
 
 [See also respecting this statute as it regards the duty of a magis- 
 trate, tit. Distress^ I Burns Just.'] 
 
 {a) 3 T. R. 645, 6, (F) Ibii
 
 C 473 ] 
 
 CHAPTER XVIU. 
 
 Of the Remedies for Tenants against Landlords, 
 Of the Action of Replevin. 
 
 Section I. Of the Action. 
 Section II. Of the Judgment, §c. 
 
 Section I. Of the Action of Replevin, 
 
 r PHE action of replevin is founded ir,on, and is the. regular way 
 ^ of contesting the validity of, a distress . being a re-delivery of 
 the pledge, or thing taken in distress, to the owner, by the sheriff 
 or his deputy ; upon the owner giving security to try the right of the 
 distress, and to restore it, if the right be adjudged against him : after 
 which the distrainer may keep it till tender made of sufficient amends, 
 but must then re-deliver it to the owner (a). 
 
 In this writ or action, both the plaintiff and defendant are called ac- 
 tors ; the plaintiff suing for damages, and the defendant or avowant to 
 have a return of the goods or cattle b\ 
 
 Replevin is an action founded on the right, and different from tres- 
 pass, or detinue : and it is now held, that as no lands can be recovered 
 in this action, it cannot, with any propriety, be considered as a real ac- 
 tion, though the title of lands may incidentally come in question ; as it 
 may do in an action of trespass or even debt, which are actions merely 
 personal (<r). 
 
 In our account of this action, we shall endeavour to confine our 
 notice of it as it regards distress for rent, or cattle damage feasant ; 
 the services of copyholders, C5V. being without the scope of our con- 
 sideration. 
 
 Who may have Replevin. — This remedy may be said to be of common 
 right : for if a man by his deed grant a rent with a clause of distress, 
 
 (a) 3 BI. Com. 147. (i) Bac Abr.ut. « Replevin," &c. (A.) {/) Ibid.
 
 474 Of the Action of Replevin. [Chap. XVIII. 
 
 and grant further that the party shall keep the goods distrained against 
 gages and pledges, until the rent be paid, yet shall the sheriff replevy 
 the goods distrained ; for it is against the nature of such a distress to be 
 irreplevisable, and by such an invention the current of replevins would 
 be overthrown to the hindrance of the commonwealth ; and therefore 
 it was disallowed by the whole Court, and awarded that the defendant 
 should gage deliverance [that is, engage to deliver the distress to the 
 owner on his pledging to try the distrainer's right thereto] or else go to 
 prison {a). 
 
 It is a general rule that the plaintiff ought to have the property of 
 the goods in him at the time of the taking : but there are two kinds of 
 properties ; a general property, which every absolute owner hath, and a 
 special property, as goods pledged or taken to manure his lands, or the 
 like, and of either of these replevin lies (b). 
 
 An executor may have a replevin for goods taken in the lifetime of 
 his testator (c). 
 
 So, if the cattle or other goods of a feme sole be taken and she after- 
 wards intermarry, the husband alone may have replevin : and if they 
 join, judgment will not be arrested after verdict, because the Court 
 will presume them jointly interested (as they may be, if a distress be 
 taken of goods of which a man and woman were joint-tenants, and 
 afterwards intermarry) ; the avowry admitting the property to be in the 
 manner it is laid. — But in replevying goods which a wife holds as exe- 
 cutrix, this action cannot be brought by either of them singly, but they 
 must be joined (d). 
 
 Where cattle put on the premises for the purpose of taking posses- 
 sion where the tenant had held over, were distrained by the tenant on 
 the ground of being damage feasant, on replevin being brought L. 
 Kenpn said, The case is too plain for argument. Here is a tenant from 
 year to year, whose term expired upon a proper notice to quit, and be- 
 cause he holds over in defiance of law and justice, he now attempts to 
 convert the lawful entry of his landlord into a trespass. If an action 
 of trespass had been brought, it is clear that the landlord could have 
 justified under a plea of liberum tetiementum. — If, indeed, the landlord 
 had entered with a strong hand to dispossess the tenant by force, he 
 might have been indicted for a forcible entry ; but there can be no 
 doubt of his right to enter upon the land at the expiration of the 
 term. There is not the slightest pretence for considering him a tres- 
 passer in this case, and therefore there must be judgment for the plain- 
 tiff (e). 
 
 If the goods of several persons be taken, they cannot join in replevin 3 
 but every one must have a several action (f). 
 
 (a) Co. Lit. 145, b. (i) Ibid. (c) Bull. N. P. 53. 
 
 (<0 Ibid. Bac, Abr. lit." Replevin," &c. (G.) (<•) 7 T. R.43L (/) Co. Lit. I45.b, 
 
 6
 
 Sect. I.] Of the Action of Replevin. 475 
 
 Tenants, in common, therefore, should not join. — But coparceners 
 should join, for they make but one heir : and for the same reason, so 
 should joint-tenanrs («). 
 
 Against whom. — Replevin lies against him who takes the goods, and 
 also against him who commands the taking or against both (b). 
 
 So it lies against him who takes damage feasant, if he detains after 
 amends tendered (<:). 
 
 Replevin lies for what. — Replevin lies for whatever is capable of being 
 distrained, and for nothing else ; for the action is the remedy of the 
 party whose goods are distrained. 
 
 Replevin, therefore, does not lie of things fera natura; nor of deeds 
 or charters ; nor of money j nor of leather made into shoes (d). 
 
 But if a mare in foal, a cow in calf, &c. be distrained, and they 
 happen to bring forth their young whilst they are in custody of the dis- 
 trainer, a replevin lies of the foal, calf, &c. (?). 
 
 Replevin lies of a ship : so, of the sails of a ship (/). 
 
 But no replevin lies of goods taken beyond the seas, though brought 
 hither by the defendant afterwards. 
 
 In those cases in which replevin does not lie, the party may bring an 
 action of detinue to recover the deeds, goods, &'c. in specie (g). 
 
 The plaintiff having brought replevin for goods levied under a war- 
 rant of distress for an assessment, by a special sessions under the High- 
 way Act, 13 Geo. 3. chap. 78. sect. 47, on the ground of the pre- 
 mises for which he was assessed, being situated without the township 
 which was liable to repair the road ; the Court refused to set aside the 
 proceedings (/6). 
 
 The several kinds of Replevin. — Replevin may be made either by origi- 
 nal writ of replevin at common law, or by plaint by the statute of 
 Marlbridge, 52 H. 3. c. 21. 
 
 Formerly, when the party distrained upon intended to dispute the 
 right of the distress, he had no other process by the common law than 
 by a writ of replevin, replegiari facias, which issued out of Chancery, 
 commanding the sheriff to deliver the distress to the owner, and after- 
 wards to do justice in respect of the matter in dispute in his own 
 County Court. But this being a tedious method of proceeding, the 
 beasts and other goods were long detained from the owner, to his great 
 loss and damage. 
 
 The statute of Marlbridge, therefore, directs, " That (without suing 
 a writ out of the Chancery) if the beasts of any person be taken and 
 wrongfully withholden, the sheriff, after complaint made to him there- 
 of, may deliver them without let or gainsaying of him that took the 
 
 (a) Cro. Eliz. 530. Salk. 390. Bull. N. P. 53. (b) 2 Roll. 431- 1-J- 
 
 0) F. N. B. 19 G. (d) Bur. Abr. tit. " Replevin," &c. (F.) (e) Ibid. 
 
 (/) Ibid. (j) Ibid, n, (A) 2 Bo$. & Pul. N. R. 399*
 
 476 Of the Action of Replevin. [Chap. XVIII. 
 
 beasts, if they were taken out of liberties ; and if they were taken 
 within liberties, and the bailiffs of the liberty will not deliver them, 
 then the sheriff, for default of those bailiffs, shall cause them to be de- 
 livered." 
 
 Also, for the more speedy delivery of cattle taken byway of distress, 
 the statute of the first of Philip and Alary, c. 12. provides, that the 
 sheriff shall make, at least, four deputies in each county, dwelling not 
 above twelve miles from each other, for the sole purpose of making re- 
 plevins, under a penalty of 5/. for every month such deputies shall be 
 omitted to be provided. 
 
 When any man's goods, therefore, are distrained or impounded, he 
 may, upon applica ion for the purpose to one of these deputies, upon 
 giving pledges to return the distress if judgment be against him, have a 
 replevin, by which his goods will be restored to his possession. 
 
 But when an Act of Parliament orders a distress and sale of goods, 
 it is in the nature of an execution, and replevin does not lie (a). 
 
 Out of ivkat Courts Replevin issue*. — The sheriff, upon plaint made to 
 him without writ, may either bv parol or precept command his bailiff to 
 deliver the goods, that is to make replevin of them; and by the words 
 in rhe stature of Afar/bridge, " after complaint made to him thereof," 
 h: m w take a plaint, out of the County Court, and make replevin pre- 
 sent' 1 :, which he is to enter in the Court b). 
 
 B\ this statute, the sheriff may hold plea in the County Court on re- 
 plevin by plaint, whatever may be the value of the subject in dispute, al- 
 though in other actions he shall only hold plea where the matter is under 
 40/. value •, and the plaint may be taken at any time as well out of, as in 
 Court. But if the taking be in right of the Crown, or if any thing 
 touching the freehold corne in question, or anticnt demesne be pleaded, 
 or if the distrainer claim property in the goods, and on a writ de pro- 
 prietate probanda, they be found to be his, the sheriff can proceed no 
 further, but must return the proceedings into the Court of K. B. or 
 C. P. to be there, if thought adviseable, finally determined (c). 
 
 But either party may, by the writs of pyac, and recordari facias, re- 
 move a replevin to these superior courts : the plaintiff at his election, 
 the defendant upon reasonable cause. It is therefore usual to carry it up, 
 in the first instance, to Westminster Hall (7/). 
 
 The writ of replevin issues out of the Court of Chancery, and is re- 
 turnable only into the Court of King's Bench, Common Pleas, the 
 court of the Cinque Ports, and the County Court (e). 
 
 If the sheriff makes replevin he need not return the writ ; but if he 
 does, he ought to return the cause ; and if he do not, an attachment 
 
 (a) Eac. Abr. tit. " Replevin," &c. (C.) (l>) Bull. N. P. J2- (0 * Bl. Com, 149. 
 (</) Co. Lit. i.'j.b, 3 Cn.ni;;. Pract. 227. (<) 2 Inst, 512.
 
 Sect. I.] Of the Action of Replevin. 477 
 
 lies against him to the coroners, commanding them to attach the sheriff 
 for his contempt, and in the interim make replevin (a). 
 
 Proceedings in replevin cannot be carried on in the Hundred Court 
 Baron, or any oilier court claiming a jurisdiction over such proceedings 
 by prescription ; unless perhaps by process of the Court after a plaint 
 entered. But it lies by plaint in London (b). 
 
 If the distress be made in a franchise or bailiwick, the sheriff is to 
 direct the replevin to the bailiff thereof to deliver the goods upon 
 pledges, and if he make no answer, or return that he will make no de- 
 liverance, or the like, then the sheriff may enter into the liberty, and 
 make deliverance ; and if the distress be taken without the liberty and 
 impounded within the liberty, then the sheriff may enter and make de- 
 liverance, and need not first make out a warrant to the sheriff of the 
 liberty (r\ 
 
 But if a man were to presume to replevy goods, seized in order to con- 
 demnation, it would be a contempt of the Court of Exchequer, for 
 which an attachment would be granted instantly (d). 
 
 The action of replevin is of two sorts : I. in the detinet, 2. in the de- 
 timiit. Where the party has had his goods re-delivered to him by the 
 sheriff upon a writ of replevin, or upon a plaint levied before him, the 
 action is in the detinuh> " wherefore he detained the goods," cV. but 
 where the sheriff has not made such replevin, but the distrainer still 
 keeps possession, the action is in the detinet, " wherefore he detains the 
 goods," &c. — The advantage that the plaintiff has in bringing an action 
 of replevin in the detinet^ instead of an action of trespass de bonis aspor- 
 tatis, is, that lie can oblige the defendant to re-deliver the goods to him 
 immediately, in case, upon making his avowry, thev appear to be re- 
 plevisable : but as he may more speedily have them delivered immedi- 
 ately after they are distrained by application to the sheriff, the action in 
 the detinet has fallen into disuse, and is never brought, unless the dis- 
 trainer has eloined [removed] the goods so that the sheriff cannot get at 
 them to make replevin ; whereupon, after avowry made, the plaintiff 
 may pray that the defendant gage deliverance ; or he may act as men- 
 tioned under title the lurk of Withermnn which fide post e a ie). 
 
 The method of proceeding usualiy adopted now is by plaint, that bv 
 writ being generally disused. 
 
 The sheriff is obliged to grant replevins in all such cases as are al- 
 lowed of by law, and the ofacer who takes the goods by virtue of a 
 replevin, isbuing for what cause soever, is not liable to an action of 
 trespass ; unless the party in whose possession the goods were claim pro- 
 perty therein ; and in all cases of misbehaviour by the sheriff or other 
 
 (a) % Sl-U. Pract. 144. (I) 1 Ld. Raym. 219. 2 Li!. Reg. 557. Bro. R. 3. 
 
 U) a Inst. 149, 19*. (d) Anstr, 31;. < e ) 2 SeU. Tract. 141.
 
 473 Of the Action of Replevin. [Chap. XVIII. 
 
 officers in relation to replevins, they are subject to the controul of the 
 king's superior courts, and punishable by attachment for such misbeha- 
 viour {a). 
 
 Where a tenant has, on coming into possession under an assignment, 
 had notice that the lease was held under any particular person to whom 
 the former tenant has paid rent, the title of this person cannot be con- 
 tested in an action of replevin (b). 
 
 Of the Pledges. — The sheriff, when, upon complaint made to him, 
 he makes replevin must take two kinds of pledges: ist, by the com- 
 mon law, that the party replevying will pursue his action against the 
 distrainer, for which purpose he puts in plegii de prosequendo, or pledges 
 to prosecute at common law; and 2dly, by stat. 13. E. 1. c. 1. that if 
 the right be determined against him he will return the distress again ; 
 for which purpose he is bound to find plegii de reform habendo, or 
 pledges to make return, if it be so adjudged (c). 
 
 The pledges taken must not only be sufficient in estate, viz. capable 
 to answer in value, but likewise sufficient in law and under no in- 
 capacity; and therefore infants, tsV. are not to be taken as pledges, 
 neither are any persons politic or bodies corporate. But the sufficiency 
 of these pledges is discretionary, and if the sheriff returns insufficient 
 pledges, he shall answer for the price of the goods himself; for insuffi- 
 cient pledges are as no pledges. — The pledges when taken must be 
 recorded in the County Court (d). 
 
 Upon plaint being made, and pledges found, which is done at the 
 sheriff's office, the sheriff or one of his deputies, by stat. 1 E. 1. P. 
 fcf M. is to make replevin of the goods or cattle distrained, which is 
 done by granting a warrant (e). 
 
 There is no particular time when the replevin must be made, as the 
 distress cannot be disposed of, but must be only kept as a pledge. 
 
 In replevin, a bond instead of pledges, taken by a sheriff to pro- 
 secute the action with effect for wrongfully taking the plaintiff's gelding, 
 and to make return thereof if return should be adjudged, is good: but 
 he cannot take gage instead of pledges (/"). 
 
 If the sheriff" neglect to take a replevin-bond, the party injured may 
 have his action against him ; but it is not a contempt of Court for 
 ■which they will grant an attachment (g). 
 
 If upon such bond the plaintiff in replevin do not enter his plaint in 
 the County Court, the bond will be forfeited ; so, if afterwards he do 
 not proceed in the prosecution ; or if he be nonsuit, or has a verdict 
 against him (b). 
 
 But if the plaintiff in replevin enters his plaint, and afterwards is 
 
 (a) Bac. Abr. tit. " Replevin," &e. (C.) (i) i Esp. R. 91. (■ ) Bac. Abr. ut arte. 
 
 {d) Co. Lit. 145. 2 Inst. 340. (<?) 2 Sell. Pract. 246. (/) I L-J. Rnym. 278. 
 
 {g) »T. R. 617. (l>) Com. Dig. tit. "Replevin." (D.)
 
 Sect. I.] Of the Action of Replevin. 479 
 
 restrained by injunction cut of Chancery till his death, whereby his 
 pliant abates, the bond will not be forfeited (a). 
 
 The bond may be assigned, if the plaintiff in replevin do not ap- 
 pear at the County Court next after giving the bond : and he may sue 
 on the bond as assignee of the sheriff in the superior Courts, though 
 the replevin be not removed out of the County Court [b). 
 
 But though if the distress be not for rent, the bond is not assignable, 
 yet the party may apply to the sheriff for the bond and to be at liberty 
 to sue in his name. 
 
 How to make Replevin where Distress is for Rent. 
 
 If the tenant means to replevy, he must, within five days after no- 
 tice of the distress, take with him two housekeepers, living in the 
 city or county where the distress was made, and go to the sheriff's 
 office of such city or county, where he must enter into a bond with 
 the two housekeepers, as sureties in double the value of the goods 
 distrained, according to stat. 1 1 G. 2. upon which the sheriff will 
 direct a precept to one of his bailiffs, and the possession of the 
 goods will be restored to the tenant to abide the event of the suit in 
 replevin (f). 
 
 It has before been observed, that upon making replevin, two kinds 
 of securities were at common law taken by the sheriff, viz. the one for 
 prosecuting the suit ; the other, for returning the goods IT a return 
 should be awarded. The first were merely nominal {John Doe and 
 Richard Roe,) but the second should be real responsible persons. 
 Sheriffs however gradually became remiss in their duty, and often 
 neglected taking these pledges pro retorno babendo; or, if any were 
 taken, for the most part they were found to be indigent and irrespon- 
 sible people [d). 
 
 The stat. 11 G. i.e. 19. 5. 23. therefore, for the better securing 
 the payment of rents and preventing frauds by tenants, enacts, " That 
 to prevent vexatious replevins of distresses taken for rent, all sheriffs and 
 other officers having authority to grant replevins, may and shall, in 
 every replevin of a distress for rent, take in their own names from the 
 plaintiff and two responsible persons as sureties, a bond in double the 
 value of the goods distrained (such value to be ascertained by the oath 
 of one or more credible witness or witnesses not interested in the 
 goods or distress, which oath the person granting such replevin is 
 hereby authorized and required to admiuister,) and conditioned for pro- 
 secuting the suit with effect and without delay, and for duly returning 
 
 (a) Com. Dig. tit. '■■ Replevin" (D.) Carth. j rj. {b) 5 T. R. 195. 
 
 (0 2 Sell. Pract. 262. (d) Irid.
 
 480 Of the Writs in Replevin. [Chap. XVIII. 
 
 the goods and chattels distrained, in case a return shall be awarded be- 
 fore any deliverance be made of the distress." 
 
 For the further protection of landlords and by way of putting the 
 remedy into their own hands, it is also ordered by the same statute, 
 " That such sheriff or other officer as aforesaid, taking any such bond, 
 shall, at the request and costs of the avowant; or person making co- 
 nusance, assign such bond to the avowant, or person aforesaid, by in- 
 dorsing the same, and attesting it under his hand and seal, in the pre- 
 sence of two or more credible witnesses ; which may be done without 
 any stamp, provided the assignment so indorsed be duly stamped 
 before any action be brought thereon : and if the bond so taken and 
 assigned be forfeited, the avowant or the person making conusance, 
 may bring an action, and recover thereupon in his Own nariie ; and 
 the Court where such action shall be brought may, by a rule of the 
 same Court, give such relief to the parties, upon such bond, as may- 
 be agreeable to justice and reason, and such rule shall have the nature 
 and effect of a defeazance to such bond." 
 
 Section II. Of the JVrits in Replevin. 
 
 The original writ in replevin issues out of Chancery, and neither that 
 nor the alias replevin are returnable, but are only in the nature of a 
 justicies to empower the sheriff to hold the plea in his County Court, 
 where a day is given to the parties. But the plwies replevin is always 
 with this clause, " or shew cause before us," and is a returnable pro- 
 cess (a). 
 
 The pluries replevin supersedes the proceedings of the sheriff, and the 
 proceedings are upon that, and not upon the plaint as they are when 
 that is removed by recordari .- and though there is no summons in the 
 writ, yet it gives a good day to the defendant to appear, and if he do 
 not appear, a pone issues, and then a capias (b). 
 
 Process of outlawry lies upon the capias in withernam, which issue? 
 upon the sheriff's return of averia elongata upon the pluries ; and upon 
 the sheriff's special return of nulla bona on the withernam, there shall 
 go a capias against the person, and so to outlawry (c). 
 
 Capitis and process of outlawry in replevin were given by stat. 25 E. 
 3, c 17. 
 
 Of the Withernam. — If on the pluries replevin the sheriff return that 
 the cattle are eloigned to places unknown, £sV. so that he cannot de- 
 liver them to the plaintiff, then shall issue a withernam [from the Saxon 
 words weder, other, and naam, distress, signifying another distress in- 
 
 00 Bac. Atw. tit " Replevin," &c. (E.) (£) Ibid. (<r) Ibid.
 
 Seer. IT.] Of the Writs in Replevin. 481 
 
 stead of the former which was eloigned, that is, removed,] directed to 
 the sheriff", commanding him to take the cattle or goods of the defend- 
 ant, and detain them till the cattle or goods distrained are restored to 
 the plaintiff"; and if upon the first withernam a nihil be returned, then 
 an alias and pluries replevin shall issue, and so to a capias and exi- 
 gent (a). 
 
 The writ of withernam ought to rehearse the cause which the sheriff 
 returns, for which he cannot replevy the cattle or goods ; so that it 
 does not lie upon a bare suggestion that the beasts are eloigned, life. — • 
 If upon the withernam, the cattle are restored to the party who eloigned 
 them, yet he shall pay a fine for his contempt (b). 
 
 The withernam is but mesne process, and cannot be an execution, 
 because it is granted before judgment (V). 
 
 Cattle taken in withernam may be worked, or if cows, may be 
 .milked ; for the party has them in lieu of his own : and as the party is 
 to have the use of the cattle, lie is not to have any allowance or pay- 
 ment for the expences he has been at In maintaining them (d). 
 
 In scire facias against an executor on a judgment de retorno habendo 
 against his testator for a cow, but which was not executed, it was held 
 ■that the plaintiff" should have execution, for the defendant could not be 
 prejudiced •, inasmuch as, if the sheriff return averia etongafa, he shall 
 not have a withernam but of the goods of the testator ; or if there are 
 no goods of the testator, the sheriff can take nothing, but shall return 
 nulla bona, and then the plaintiff" hath his ordinary way to charge the 
 defendant, if he hath made a devastavit} and it was adjudged for the 
 plaintiff (c). 
 
 If upon an ehngaia returned, the defendant's cattle are taken in wi- 
 thernam, yet upon the defendant's appearance, a;, 1 pleading non cepit, 
 or cia'ming property, the defendant shall have his cattle again, and if 
 they are eloigned, a withernam against the plaintiff": for if the property 
 or taking be in question, there is no reason that the plaintiff" should 
 have the defendant's cattle. — Both the plaintiff" and defendant, indeed, 
 may, i : - seems, have a withernam ( f). 
 
 Of ivrit of second deliverance. — At common law, if the plaintiff had 
 been nonsuited either before or after verdict, the defendant who dis- 
 trained should have had return, but not irreplevisable ; [this signifies, 
 that ought not to be replevied, or set at large upon sureties;] so that 
 the plaintiff after nonsuit might have had as many replevins as he chose. 
 To remedy which evil the stat. Wesim.n, (13 Ed. i.st.i.c 2.) re- 
 strains the plaintiff" iiom any more replevins after nonsuit, but gives a 
 writ of second deliverance : and if in such writ the plaintiff be non- 
 
 :/) Bac. Abr. ut ant:. (E. 2.) (L) Ibid. {c) Ibid. {J) Ibid. 
 
 U) Ibid. (/) Ibid.
 
 482 Of the Writs in Replevin. [Chap. XVIII 
 
 suited, or if the plea be discontinued, or the writ abate, or if he prevail 
 not in his suit, return irreplevisable shall be granted (a). 
 
 If defendant in replevin has return awarded upon nonsuit of the 
 plaintiff, upon which he sues a writ de ret. hab., and the sheriff returns 
 averia elongata per querentem y and upon this a withernam is awarded, 
 and upon the withernam, the defendant has iota catalla to him delivered 
 of the goods of the plaintiff, and thereupon the plaintiff sues a second 
 deliverance : he shall sue it for the first distress taken, and not for the 
 withernam, as appears by the nature and form of the writ of second 
 deliverance {b). 
 
 Rttonw habendo awarded to the sheriff, after a writ of second deliver- 
 ance prayed by the plaintiff, is a supersedeas to the ret. hab. and closes the 
 sheriff's hand from making any return thereon. — If the sheriff will not 
 execute the writ of second deliverance, the party has his remedy against 
 him (c). 
 
 This stat. of Westm. i. gives the writ of second deliverance out of the 
 same Court whence the first replevin was granted, and a man cannot 
 have it elsewhere : for if he could, then he might vary from the place 
 limited, as to this, by the statute. But though the writ cannot vary 
 from the first in year, day, place, or number of beasts, yet if the first 
 writ was of a heifer, the second may be of a cow, as by presumption 
 it may in that distance of time grow to such. 
 
 Where the defendant had avowed, and plaintiff being nonsuited 
 brought this writ, it was held that though the writ be a supersedeas to 
 the ret. hab. it is not so to the writ of enquiry of damages ; for these 
 damages are net for the thing avowed for, but are given by the stat. 
 21 if. 8. c. 19. as a compensation for the expence and trouble the 
 avowant has been at. 
 
 In error on a second deliverance, the writ must be certified : and if 
 i* vary in substance from die declaration in replevin it shall be 
 abated (d). 
 
 Upon a nonsuit either before or after evidence, this writ will lie, be- 
 cause there is no determination of the matter, and there a writ of se- 
 cond deliverance lies to bring the matter in question (e). 
 
 But no second deliverance lies after a judgment upon a demurrer, or 
 after verdict, or confession of the avowry; but in all these cases, judg- 
 ment must be entered w r ith a return irreplevisable ; for in the case of a 
 demurrer and verdict, the matter is determined by the law, and in that 
 cf a confession, it is determined by the confession of the party (J ). 
 
 Note, In an avowry for rent, the second deliverance is taken away 
 by stat. 17 Car. 2. c. 7. 
 
 (a) Bae. Abr. ut ante. (E. 3.) (b) Ibid. (c) Ibid. (J) Ibid. 
 
 0) Ibid. (/) Ibid.
 
 Sect. II.] Of the Writs in Replevin. 483 
 
 Yet if the plaintiff in replevin be nonsuited for want of delivering a 
 declaration, which happened through any cause that would have en- 
 titled him to a writ of second deliverance, as sickness of the person 
 employed, &fc. the Court will order the defendant to accept of a de- 
 claration on payment of costs ; else the plaintiff would be remediless, 
 the writ of second deliverance being taken away by the 17th C. 
 2. c. 7. 
 
 Of Writ du proprietate probanda. — The writ de proprietate probanda 
 issues out of Chancery, or K. B. or C. P. When it issues out of 
 Chancery, it is an original, and goes upon the sheriff's return to the 
 alias replevin ; when out of either of the other Courts, it is judicial 
 and granted on the return of the pluries, for the pluries is return- 
 able only there, the original and alius giving no day, but being merely 
 vicontiel (a). 
 
 If the defendant in replevin claim property, the sheriff cannot pro- 
 ceed, for property must be tried by writ. In this case, therefore, the 
 plaintiff may have the writ de proprietate probanda to the sheriff, who is 
 to give notice to the parties of the time and place of executing it, for 
 it is an inquest of office. If it be found for the plaintiff, the sheriff 
 is to make deliverance ; if for the defendant, then he is to proceed no 
 further, but being an inquest of office, the plaintiff may notwith- 
 standing have a replevin to the sheriff, and if he return the claim of 
 property, yet it shall proceed in C. P. where the property shall be put 
 in issue and finally tried.— None but he who is party to the replevin 
 shall have the writ de prop. prob. 
 
 The sheriff is to return the claim of property on the pluries, before 
 which time the writ de prop. prob. docs not issue, for it recites the 
 pluries (b\ 
 
 If the defendant in replevin claim property, the plaintiff may have 
 the writ de prop. prob. without continuance of the replevin, though it 
 be two or three years after; for by the claim of property the first is 
 determined (<:). 
 
 If the plaintiff has property and omits to claim it before the sheriff, 
 he may notwithstanding plead property in himself, or in a stranger, 
 either in abatement or bar. 
 
 If it be notified to him that comes in aid of the sheriff or his 
 officer, that claim of property is made, he at his peril ought to desist, 
 for if lie take them away, he will be a trespasser ab initio (//). 
 
 A man cannot claim property in the County Court by his bailiff or 
 servant, for if the claim be false a fine will be imposed for the con- 
 tempt: but in K. B. one may make conusance and claim property by a 
 bailiff, for there the bailiff is not liable to a fine (e). 
 
 ( f ) Ibid. (i) Ibid. 
 
 00 
 
 Bac. Abr. 
 
 ;.•■' ante. (E. 4.) 
 
 {1) Ibid. 
 
 U) 
 
 Hid. 
 
 
 Ii 1
 
 4 84 Of the Writs in Replevin. [Chap. XVIII. 
 
 Of Writ de retorno hahcndo. — K replevin being granted, if the person 
 who takes the distress " avows;" or if his bailiff make " conusance," 
 and prove the distress to be lawfully taken; or if upon removal of the 
 plaint into the Courts above, the plaintiff whose cattle were replevied, 
 make default or l\o not declare, or prosecute his action, and thereby 
 becomes nonsuited ; or if a verdict be given against him ; in any of 
 these cases, the party distraining, that is, the defendant in replevin, 
 shall have a writ de retorno babendo ; which being a judicial writ, and 
 net a returnable process, if on the pluries the sheriff return that the 
 cattle, goods or chattels are eloigned, he shall have a scire facias 
 against the pledges according to the stat. of Westm. 2. and if they 
 have nothing, then he shall have a withernam against the plaintiff's 
 •own cattle (a). 
 
 A bailiff who makes conusance may have judgment of a return, and 
 consequently, a writ de ret. hab, grounded on such judgment If). 
 
 Of Returns irreplevisable. — Return irreplevisable is a judicial writ 
 directed to the sheriff for the final restitution of the cattle unjustly 
 taken bv another, and so found by verdict or after nonsuit in a second 
 deliverance (Y). 
 
 If the plea be to the writ, or any other plea be tried by a verdict, or 
 judged upon demurrer, return irreplevisable shall be awarded, and no 
 new replevin shall be granted, nor any second deliverance by stat. 
 Westm. 2. s. 2. but only upon a nonsuit. — But if upon issue joined the 
 plaintiff docs not appear on the trial, being called for that purpose, 
 return irreplevisable shall not be awarded, but the party may have a 
 writ of second deliverance. 
 
 If a man has return irreplevisable, and a beast dies in the pound, 
 he may distrain anew; so, if the beast dies before judgment (Y/). 
 
 If a return irreplevisable be awarded, the owner of the cattle may 
 offer the arrearages ; and if the defendant refuse to deliver the 
 distress, it being only in the nature of a pledge, the plaintiff mav 
 have detinue. 
 
 Such processes honv to be executed. — By the stat. Westm. 2. if the partv 
 who distrains, conveys the distress into any house, park, castle, or 
 other place of strength, and refuses to suffer them to be replevied, the 
 sheriff may take the posse comitatns, and on request, and refusal, may 
 break open such house, castle, Uc and make deliverance. If the 
 sheriff return that the beasts are inclosed in a park among savages, 
 ejv. or quod tn.inJ:ivi balllvo titer tails, l^c. qui nullum dedit tnihi respon- 
 .'.-• /, or that the bailiff will not make deliverance of the cattle, these 
 are not good returns \ for he ought to enter the franchise and make 
 cciiverance </). 
 
 (•0 Bac. Ahu ui i.-. h. 'E.J.) (&) Ibid. (0 Ibid. (E. 6.; (J) Ibid. 
 
 {-) IL-id. (E.;.) 
 
 4
 
 Sect. N.J Of the Declaration. 485 
 
 If a man sue a replevin in the County Court without writ, and the 
 bailiff" return to the sheriff, that he cannot have view of the cattle to 
 deliver them, the sheriff' ought by inquest of the office to inquire of 
 the truth thereof, and if it be found by a jury that the cattle were 
 eloigned, csv. the sheriff may award a withernam to take the defend- 
 ant's cattle: if he will not so do, the plaintiff" shall have a writ out of 
 Chancery directed to the sheriff' rehearsing the whole matter, com- 
 manding him to award a withernam, isc and he may have an alias, and 
 after a pluries, and an attachment against the sheriff", if he will not 
 execute the king's command (a). 
 
 If the sheriff" return quod averia elongata sunt ad loca incognita, it is a 
 good return, and the party must pursue his writ of withernam; but if 
 the sheriff return averia elongata ad hen incognita infra comitatum meum % 
 he shall be amerced, for the law intends that he may have notice in 
 his county {b). 
 
 JPj'sd averia mortua sunt is a good return : so, quod radius \enit ex 
 parte quarentis ad demonstranda averia; but it seems the sheriff" is not 
 obliged to require this (c). 
 
 If the sheriff" come to take replevin of beasts impounded in another 
 man's soil ; if the place be inclosed and have a gate open to the in- 
 closure, he cannot break the inclosure and enter thereby, where he 
 may enter by the open gate : but if the owner hinder him, so that he 
 cannot go by the open gate for fear of death, he may break the inclo- 
 sure and enter there (d). 
 
 If the sheriff' be shewn a stranger's goods and he take them, trespass 
 lies against him, else the stranger could have no remedy. But it seems 
 to have been held, that the action lies more properly against the person 
 who shews the goods (e). 
 
 The sheriff" is to return, that the cattle are eloigned, or that no per- 
 son came to shew, &c. or a delivery : but he cannot return that the 
 defendant non cepit the cattle, because it is supposed in the writ, and is 
 the ground of it, which the sheriff" cannot falsify (f). 
 
 Of the Declaration. 
 
 Although it has been holden by some, that the count of declaration 
 in replevin should be certain and particular in setting forth the 
 number, kinds, and qualities of the things distrained, for that other- 
 wise the sheriff" cannot tell how to make deliverance of the same ; 
 yet 
 
 It seems now to be settled, that a declaration in replevin being cer- 
 tain to a general intent is sufficient; especially if it be after verdict (r>). 
 
 (<0 Eac. Abr. id ante. (I 7 ,. 7.) (b) Ibid. ( ,-) Ibid. (,/) Ibid. (<r) Lbi 
 
 ' '/') Ibid. (g) Bac. Abr. tit. " Replevin, &c." (H.)
 
 486 Of the Picas. [Chap. XVIII. 
 
 In his count the plaintiff must allege the taking to be at a certain 
 place, or (according to the precedents) in quodam loco vocaf, that the 
 defendant may have notice as to what he is to answer, and make his 
 title: therefore the alleging the raking npud Dale, or such a vill, is too 
 general and uncertain (a). 
 
 In replevin both the vill and place are traversable. 
 
 Where a defendant takes cattle wrongfully at first, the wrong is 
 continued to any place where he had them in custody, so that a place 
 different from that where they were originally taken is well laid 
 in the declaration, if defendant had them in custody at such other 
 place [b). 
 
 A man may count of several takings, part at one day and place, and 
 part at another day and place, for he need not shew how rr ,- he took 
 in one vill, and how many in another (r). 
 
 Where the defendant counted of four oxen taken at divers a tries and 
 places, and that delivery was made of two, but the other two were 
 withheld to his damage los. this was held sufficient without any sever- 
 ance as to the damages (d). 
 
 The count, as in other actions, must agree with the writ, so that if 
 the writ be de ateriis, and the count de averiis isf catallis, this is ill. 
 In replevin the writ was in the detinet t and the count in the detinuit t 
 and this was thought to be a material variance ; but the parties agreed 
 to amend (V). 
 
 Of the Picas. 
 
 Pleas in replevin are generally of four kinds, viz. either ist, pleas in 
 bar; 2dly, in justification; 3dly, by way of conusance; 4thly, by way 
 of avowry. — The defendant may either justify or avow at his election; 
 but if he justifies, he cannot have a return (f). 
 
 The general issue in replevin is non ceprt ; and one of several defend- 
 ants may plead non cepit (g). 
 
 If the defendant claim property in himself, or a stranger above, as 
 he may do; though it ought to have been before the sheriff, this does 
 not amount to the general issue, but may be pleaded in bar or abate- 
 ment, and if the plaintiff demur, the defendant shall have a return 
 without avowing; for it appears that the beasts are not the plaintiff's. 
 But on the issue non cepit, property cannot be given in evidence, for 
 that were contrary to it (£). 
 
 If the defendant make conusance as bailiff to A. the plaintiff cannot 
 traverse that he is his bailiff, fcr it is a matter of which by no intend- 
 
 (a) Bac. Abr. tit. " Replevin, &c." (H.) (//) Ibid. („-) Ibid. (d) Ibid. 
 
 W Ibid - (/) Bac. Abr. ut ante. (I.) {£) Ibid. {IS) Ibid.
 
 Sect. II.] Of removing the Suit, §c. 487 
 
 ment he can have knowledge. — But, if in bar of the avowry the plain- 
 tiff pleads that another had made conusance as bailiff to A. for the 
 same cause and was barred, he need not shew that it was with the 
 privity of A. for it shall be intended; and if in truth it was without, 
 the defendant may traverse his being ever his bailiff (a). 
 
 In a replevin against the master and bailiff or servant, if the bailiff 
 makes conusance as bailiff, and the master pleads that he did not take, 
 the servant shall not have any return upon his conusance, for by the 
 master's plea his conusance is changed into a justification (£). 
 
 In replevin'of beasts taken at D. the defendant pleads in abatement 
 that they were taken at another place absque hoc that they were taken at 
 D. and pro retorno habendo avows for rent on a lease for years, tsV. the 
 plaintiff replies and traverses the lease, £sV. this is iil ; for though the 
 defendant, when he pleads in abatement, must also avow to have a 
 return, yet the plaintiff cannot answer to it, but must take issue on the 
 other matter (c). 
 
 Prisel in aider lieu., is only matter in abatement, and the plain - 
 tiff may have a new writ without being put to his second deli- 
 verance (d). 
 
 Of removing the Suit from the County Court, wherein of 
 the Re. fa. lo. Also of subsequent Proceedings, and com- 
 pelling the Party to proceed. 
 
 The suit remains before the sheriff, i?c. though the goods and chat- 
 tels, oV. distrained above the value of 40J". ; for the replevin alias, and 
 pluries, are all vicontiel writs, and the suit maybe determined in such 
 inferior Court : but the suit may be removed by either of the parties 
 into the Courts of K. B. or C. P. to be there determined, and that 
 without any cause shewn (e). 
 
 The method of removing it depends on the manner in which the suit 
 was commenced below. — If replevin be in the County Court by writ, 
 it must be removed into K. B. or C. P. by pone : if by plaint, by writ of 
 recordari facias loquelam, (called for brevity a refalo.) If replevin is in d 
 Court of Record, that may hold plea in replevin, it must be removed 
 by certiorari, and not in any other manner ; for a refalo does not go to 
 such Court, because there the suit is already recorded. If the plaint is 
 in the Court of another lord, it may be removed into K. B. or C. P. by 
 recordari to the Sheriff commanding him quod accedas ad curiam et in 
 plena curia UP recordari facias, crV. but it is said that a replevin shall 
 not be removed out of any which is not the King's Court, without 
 
 (</) Bac. Abr. ut ante. (I.) {b) Ibid. (c) Ibid. (</) Ibid. (<) 2 Sell Pract 248.
 
 488 Of removing the Suit, §c. [Chap. XVIII. 
 
 cause, either by the plaintiff or defendant; for the prejudice that mar 
 thereby come to the lord [a). 
 
 All the above writs, to remove the suit from an inferior Court, are 
 in their nature original writs and issue cut of Chancery. The suit, 
 however, is most commonly commenced in the County Court bv plaint: 
 and very rarely at this day by writ (b). 
 
 In order to remove it, the party makes out a precipe to the cursiror of 
 the proper county, who then makes out the writ, which must be carried 
 to the under-sheriff of the county, who returns it of course. If the 
 sheiiff returns the recordari, tardc; the party shall have an alias, life. 
 
 By the recordari, nothing is removed but the plaint, even though the 
 issue should be joined below ; and the plaint may be removed, though 
 the plaintiff has discontinued there. 
 
 The plaint, when removed into K. B. is hied with the hlazer of the 
 county : so also when removed into C. P. 
 
 Where proceedings are removed from the County Court, the recordari 
 facias Irquelam called fcr brevity's sake the refald) being returned and 
 appearance of defendant entered, the plaintiff must declare de novo, nor 
 need any notice be taken of the proceedings below. To the declara- 
 tion, the defendant may plead in abatement or bar ; or he may avow in 
 his own right, or make conusance in right of another as his bailiff or may 
 justify; and the parties go on to issue or demurrer to be tried or argued 
 in the usual way (c). 
 
 But as both parties are actors in replevin, either of them may take 
 down the record, to trial ; for which reason there can be no judgment as 
 in case of a non-suit in replevin ; and if (he defendant gives notice of 
 trial and does not proceed, the Court will give costs against him ( . 
 But though an avowant is an actor, he cannot have a rule to disconti- 
 nue: for it is the plaintiff's suit notwithstanding (f). 
 
 Of compelling the Party; to proceed. — If the plaintiff removes the plaint, 
 he should, upon the return of the rcfaio, file it with the plaint, cV. 
 with the hlazer of the county, and search for the defendant's appearance: 
 if the defendant has not appeared on or before the appearance day of the 
 return of the rcj.:!:, the plaintiff should serve him with a rule to appear, 
 which may be had at the filazer's, and, upon his non-appearance there- 
 to, sue out a pone. The pone is also got at the filazer's ; a summons is 
 made out thereon at the sheriff's office, and served upon the defendant 
 by the officer. li no appearance is entered on, or before, the appear- 
 ance-day of the return, get the sheriff to return nihil on the pone, and 
 sue out a distringas, which may likewise be at the filazer's, and proceed 
 to levy thereon: the issues may be 4/. next 8/. and so on; if the defendant 
 
 (.7) z Sell. Pract. 248. {i) Ibid. 249. (c) Ibid. 253. (</) Ibid. 
 
 (0 1 Str.x i2.
 
 Sect. II.] Of Avowries. 489 
 
 does not appear, proceed with distringases, ad infinitum. If he does 
 afterwards appear, he must pay the costs of the distringases. Then (as 
 before observed ) declare de novo, not noticing the proceedings in the 
 Court below. — Rules may be afterwards given to compel the defendant 
 to avow, and so on as in common actions (a). 
 
 But if the defendant removes it, he must file the refeb and return 
 thereto with the filazer ; and having entered an appearance, he must 
 give a rule for the plaintiff to declare ; and for want of declaration, 
 when the rule is out, he may sign a non-pros, for not declaring, and im- 
 mediately sue out a writ de retorno hebendo (£). 
 
 if the refalo is not filed by the defendant, on or before the appesr- 
 rance-day of the return of it, notice must be given to the plaintiff of 
 the filing thereof by a demand in writing being made of the declaration, 
 before non-pros, can be signed : but if filed on the appearance-day of the 
 return, such demand is not necessary (r). 
 
 If the plaintiff has removed the cause, and does not proceed therein, 
 or if the defendant has removed it, and af'er having served the plaintiff 
 with a rule to declare, and demanded a declaration, the plaintiff does 
 not declare or proceed therein, the defendant may sign a non-pros, and 
 judgment pro ret. hab. and then sue out a writ pro ret. hab, which he may 
 obtain of the filazer (d). 
 
 If the defendant has taken out the refalo, and does not get it returned, 
 and hied within two terms, the plaintiff should apply to the filazer 
 for a certificate, that the same is not returned and filed ; which certifi- 
 cate is a sufficient warrant for the cursitor to make out a writ of proce- 
 dendo, which remands the cause to the County Court to be there deter- 
 mined (A 
 
 If the rejaloh not returned, so as to enable the party to get it filed, 
 the sheriff must be ruled to return it {f ). 
 
 The Court will not stay proceedings in an action of replevin, unless 
 upon payment of the rent in arrear, together with all costs, though the 
 arrears were tendered before with costs up to that time («•). 
 
 Where the avowry is for damage feasant, the proceedings cannot be 
 staid ■, because the Court, in such case, have no rule to guide them in 
 ascertaining the damages (h). 
 
 Of Avowries. 
 
 An avowry, as has been before observed, is the setting forth, as in 
 a declaration, the nature and merits of the defendant's case, and 
 the shewing that the distress taken by him was lawful, which must 
 
 (a) z Sell. Pract:. 25c. (I) Ibid. (*) Ibid. (J) Ibid. 251. (e) Ibid. 
 
 (/) Ibid. (V) 1 Pull. & Bos. 382. I Tidd's Pract. 489. (i) Ibid.
 
 430 Of Avowries. [Chap. XVIII. 
 
 he doije with such sufficient authority as will entitle him to retorm ha- 
 bench. 
 
 A distinction is to be observed between an avowry and a justification. 
 An avowry always goes for a return, and therefore shews a right sub- 
 sisting at the time of the avowry, as made for rent, for example; but 
 a pica of justification does not always go for a return; as where the 
 origin--! taking was lawful, but is not so at the time of the plea 
 pleaded {a). 
 
 In one respect, however, there is no difference between an avowry 
 and a justification; for, generally speaking, whatever is set forth in 
 cither, must be maintained. 
 
 The defendant in replevin, to entitle himself to a return of the goods 
 distrained, must make his avowry, unless it be in a case in which he 
 claims property ; so that though the plaintiff's writ abates, yet the de- 
 fendant is not entitled to a retorm habendo, unless he had made his 
 avowry (b). 
 
 The avowant Is in the nature of a plaintiff, as appears, ist. from his 
 being called an " actor," which is a term in the civil law, signifying 
 plaintiff; 2 -'ly. from his being entitled to have judgment de retorno ha- 
 betido, and damages as plaintiff; and, 3dly. from this, that the plaintiff 
 may plead in abatement of the avowry, and, consequently, such avowry 
 must be in the nature of an action (c). 
 
 An avowry, therefore, is in the nature of a declaration, and it suf- 
 fice th if it be good to a common intent. But it should shew the cer- 
 tainty of the place, day, and cattle, to entitle the avowant to a writ of 
 enquiry of damages [d). 
 
 The avowant being, however, in the nature of a plaintiff, need not 
 aver his avowry with a hoc paratus est verificare> more than any other 
 plaintiff need aver his count, and being an actor, he shall not have a 
 protection cast for him more than any other plaintiff (e). 
 
 The claim of right to distrain must be made out by the avowant 
 against the plaintiff, who claims property in the distress ; and the de- 
 fendant in replevin cannot have a return of more cattle than he avows 
 for ( f). 
 
 With respect to avowry for rent arrear, if the clause in the lease is, 
 " That if the rent be behind, being demanded at another place beside 
 the land, or of the person of the lessee, that the lessor may distrain -" 
 there, if the lessor distrain without any demand, it is unlawful ; for 
 the form of the demand is different from what the law requires, and 
 mv.ctbe complied with (g-).— But if the clause is "That if the rent be 
 behind, being lawfully demanded, that then he may distrain;" it is 
 
 '..) i Esp. N. p. -5 :. (,<) B-.c. Abr. tit. " Replevin," &c. 
 
 if) ibid, (.-.j (^ ["rid. f f ) Bac. Abr. tit. (A.) (/) !bii 
 
 {£) Hy\ac8.
 
 Sect. II.] Of Avowries. 40 1 
 
 no more than the law sneaks, and therefore the lessor may distrain 
 without a previous demand ; for the distress is of itself a demand (a). 
 
 But where a penalty is annexed to the non-payment of the rent and 
 a distress is given for it, there a demand must be laid. As where the 
 avowry was for rent and a nomine poena, and no demand alleged, the 
 avowry was held to be clearly ill for the nomine poena , for want of a de- 
 mand, but good for the rent; and the defendant had a return for that {b). 
 
 However, where the issue was on a collateral matter,, viz. non conces- 
 sit, though no demand of the nomine pcsna; was laid, it was hslu to be 
 cured by a verdict (c). 
 
 Attending on the land to pay the rent will not destroy the right to 
 distrain, unless a tender of payment is actually made (dy 
 
 An :v;o\v:y for part cf a rent or penalty is bad, unless it shew how 
 the remainder was discharged : for otherwise there may be another dis- 
 tress and avowry for the residue (e\. 
 
 But an avowant may abate ids own avowry for part of the rent dis- 
 trained for; but not after judgment. 
 
 So, where an avowry is made for several rents, and it appears that 
 part is not due, yet the whole avowry shall not abate (/). 
 
 In replevin A. avowed for a rent-charge, due anno 1660, and after- 
 wards he distrained and avowed for another part of the same rent-charge, 
 which became due before the said year, and which was against a dif- 
 ferent tenant : in this case it was held by three Judges against a fourth, 
 that the avowant was not estopped by his first avowry in such manner as 
 a lessor is by giving an acquittance for the last gale of rent, but that 
 he may, at his pleasure, avow for part of his rent at one time, and for 
 part at another, in the same manner as the lord may command his baiiifF 
 to distrain for so much rent, and afterwards for the sum due before (g). 
 
 In avowry for rent, and so many hens for quit-rent, the avowant had 
 a verdict for the whole ; but it afterwards appearing upon the face of 
 avowry, that the hens were not due at the time of the distress, the 
 avowant had leave to release his damages as to them, and take judg- 
 ment for the rent, with his costs (h). 
 
 If the grantee of a rent-charge avows upon several under-tenants for 
 the same rent, the Court will upon a tender pleaded by the under- 
 tenants, make an order that the payment of the rent into Court in one 
 action shall serve for all (/). 
 
 A man cannot proceed for damages upon a plea of tender after taking 
 the money out of Court. But on a plea of tender to an avowry for 
 rent, the plaintiff need not bring the money into Court (k). 
 
 (a) 7 Co. 2S. b. (Z) Kob. 133. (c) Hut. 42. (J) 1 Ld. Raym.609. 
 
 (;■) Cro. Car. 104. (/) Eac. Abr. tit. " Replevin," &c. (C.) 
 
 (g) Ibid. (b) Ibid. (;) 1 Ld. Raym. 429. 
 
 (f) Ibid. 639. Bui!. N. P. 60.
 
 492 Of /ti'oren'c*. [Chap. XVIII. 
 
 Where a man is sole seised or hath title to an entire rent, he should 
 distrain for it all at or.ee. 
 
 But if the defendant avow for more than is due, though the avowry 
 is for that reason bad, yet it may be cured. As where the defendant 
 avowed for rent due at A'lichncinuis, and the distress appeared to have 
 been made on the z6ih oi Si-pUmbvr, which was three days before 
 Ivlichaelmas, it was held, I'hat though the avowry was bad (for the 
 judgment is to have a return irreplevisable till all the rent avowed for is 
 paid, and so would be for more than was due), yet that the defendant 
 might before judgment abate his avowry tor so much as was claimed to 
 Michaelmas ', and take judgment for the rest (a). 
 
 But where one is not sole seised, or has not sole title to the entire 
 rent, he cannot avow alone, for such avowry would be bad. 
 
 Therefore parceners must join in an avowry lor rent or making 
 conusance ; for they make but one heir, and the rent is an entire in- 
 heritance (/;). 
 
 Joint-tenants also should join (Y). 
 
 One tenant in common cannot avow the taking of the cattle of a 
 stranger ucon the land carnage feasant, without making; himself bailiff 
 
 Ox o o 
 
 or servant to his companion : for if one were to distrain without the 
 other, as there could not be a double satisfaction for the same injury, 
 the other would have no remedy. As to any supposed hardship in one 
 denying his consent to the other avowing as bailiff to him : if he dis- 
 likes his situation he may put an end to the tenancy by a writ of par- 
 tition (d). 
 
 In replevin against two, they made several avowries, each in his own 
 right, and both avowries were abated : for if both the issues should be 
 found for the avowants, the Court could not give judgment severally for 
 the same thing (<?), 
 
 An annuitant may distrain for a rent though the term be vested in 
 himself to secure the payment, for the grantor will be deemed quasi te- 
 nant to the party at a rent to the amount of the annuity (/). — "Where 
 an action was b. ought for money had and received to the use of the as- 
 signees, and it appeared that the money was paid by the tenant of the 
 bankrupt to the defendant as grantee of an annuity granted by the 
 bankrupt after an act of bankruptcy and charged on the estate of which 
 the payer of the money was tenant : h. Kenton observed that the action 
 ought to have been brought by the tenant, and said he could not 
 transfer a chose in action, which this was, to the assignees. The te- 
 nant could not avail himself of the payment, but the assignees might 
 
 U-) Salk. 5 Sc. 5 MoJ. 564. s. c. Co:n. II. 4:. s. c. (i) Salk. yj:. 
 
 U B.ic. Abr. tir. " Replevin," &c. (K.j (J) % H. ffl. R. 386. ;» Bac, Abr. v.l ante. 
 
 if) »E1.R. :.;:'
 
 Sect. II.] Of Avowries. 403 
 
 have recovered the rent notwithstanding. This was sufficient to decide 
 the case («). 
 
 Where the lessee has entered under a lease, though such entry be 
 tortious, it does not discharge the contract for the payment of rent •, 
 for there is a great difference between replevin and ejectment (b). 
 
 If one distrain for rent, and before the avowry the estate on which 
 it was reserved determine, the avowry shall be as if the estate on which 
 it was reserved had continued, for the avowant is to have the rent not- 
 withstanding : but if the distress were for a personal service, the de- 
 fendant must have special justification, for he cannot have the service in 
 specie, when the estate is determined (>). 
 
 The defendant in replevin need not set out his title : for the stat. 
 1 1 G. 1. c. 19. s. 22. enacts, " That it shall and may be lawful for all 
 defendants in replevin to avow or make conusance generally, that the 
 plaintiff in replevin or other tenant of the lands and tenements where- 
 on such distress was made, enjoyed the same under a grant or demise 
 at such a certain rent, during the time wherein the rent distrained for in- 
 curred, which rent was then and still remains due, without further set- 
 ting forth the grant, tenure, demise, or title of such landlord or land- 
 lords, lesser or lessors ; and if the plaintiff or plaintiffs in such action 
 shall become nonsuit, discontinue his, her, or their action, or have 
 judgment given against him, her, or them, the defendant or defendants 
 in such replevin shall recover double costs cf suit." 
 
 The defendant may avow in this general manner whether the plaintiff 
 be tenant or not, for the words of the statute are in the disjunctive 
 <( plaintiff in replevin or other tenant."' 
 
 Where the rent reserved at the time of entering upon thz premises, 
 was afterwards varied by agreement between the parties, yet it was 
 holden that the landlord might avow as on a demise at a rent certain, 
 for that such subseojuent agreement operated by relation, to make it a 
 reservation of the rent from the beginning (d). 
 
 The statute was made for the benefit of landlords, that after the te- 
 nant had enjoyed the land he should not be allowed to pry into the les- 
 sor's title : therefore, if the defendant avow under the statute nil habuit" 
 in tenementis, it is a bad and inadmissible plea, for it attempts to bring 
 the lessor's title in question : were the premises in mortgage, for ex- 
 ample, if this plea were allowed, the defendant could not recover his 
 tent, which the statute never had it in contemplation to prevent, but 
 rather to assist (V). 
 
 So, there may be judgment in replevin though the party misrecites 
 his title •, provided he shews a good and subsisting one. As where the 
 
 00 Prater & a!, ass. of Steele v. Pigrnan, Sitt. at Wcstm. JYl. T. 39 G. 3. T's. MSS. 
 
 (i) 1 Sir. jjo. 0) Eac.Abr. ut ante. (</) Ibid, (e) 2 Wiis.^oS-
 
 4<j4 Of Avowries. [Chap. XVIIL 
 
 plaintiff entitled himself by a lease of the 3d of March, the defendant 
 traversed the lease modo et forma ; the jury found a lease of another date ; 
 yet judgment was given for the plaintiff: for the substance of the issue 
 is, whether he has a 'ease or not : yet if they had found a lease from an- 
 other, it would not have done. But if he had declared thus in eject- 
 ment, it had been against him, for there he is to recover the term, and 
 is to make his title truly [a). 
 
 An avowry for an increased rent on a demise for every acre of the 
 land which should be converted into tillage, is supported by the evidence 
 of a lease for a term of years, with a covenant to pay the increased 
 rent for every acre which should be so converted during "a part of 
 the term ;" for example, for the last three years, by the stat. 1 1 G. 
 2. c. 19 (/'). 
 
 If executors avow under stat. 32 H. 8. c. 37. for rent in fee, £gV. 
 due to their testator, they must shew the land in the seisin of tenant, or 
 in those who claim under him (c). 
 
 If a person distrains as executor or administrator, he must bring 
 himself within the statute; under the words of which, the distress 
 can be made only on the tenant in whose hands the lands were 
 chargeable, or some person claiming under him ; and therefore not 
 in the hands of one claiming by title paramount, as the lord by 
 escheat (//). 
 
 But where the avowry was as administratrix of rent to which the de- 
 fendant was entitled in her own right; she nevertheless had judgment, 
 that part respecting the claim as administratrix being rejected as sur- 
 plusage (V). 
 
 The above Act gives no remedy where the testator himself has dis- 
 pensed with the arrearages, or had no remedy when he died (/). 
 
 An avowry by husband and wife for vent due to the wife alone be- 
 fore the coverture, was held to be good, the supposed inconsistency 
 being mere matter of form ; for the avowry being for rent arrear, to 
 say that it was arrear to him and his wife, is but surplusage ; and al- 
 though he doth not say adhuc a retro existk, it was held well enough in 
 substance (g). 
 
 Also, if there be lessee for years, and the reversion descend on a 
 feme covert, and afterwards the rent be in arrear, and the baron dis- 
 train, and the lessee bring a replevin, the baron ought to avow in the 
 name of himself and his wife, and not in the name of himself only, 
 for the avowry is to be made according to the reversion, which is in 
 the feme (h). 
 
 But an avowry by a husband alone for rent c.uq to him and Ins wife 
 
 (.7) Hob. 72. (l>) 2 H. Bl. R. .565. (0 Cro. Eliz. 547- (<0 Co. Lit - l6z - b - 
 
 (0 Hob. 208. Bac. Abr. tit. " Replevin, &c." (K.J (/) Co. Lit. 162. b. Vaugh. 4O. 
 
 (_f) Cro. Jac. 283. (£) Bac. Abr. ut ante.
 
 Sect. IF.] Of Avowries. 495 
 
 is good, if it appear upon the record that he was entitled to make the 
 distress (a). 
 
 Though the defendant may be entitled to the rent, yet may the dis- 
 tress be tortious. As if he come on the land to distrain, and the 
 tenant then tenders the arrears due; in such case, if he distrain the 
 cattle, it is tortious, and the defendant may replevy (/* • - But it is not 
 sufficient for the tenant to say that he was on the land on the day and 
 ready to pay the rent; for if he did not make a tender at the time of the 
 distress made, the taking was not tortious (c). The tender must be 
 before the impounding, for when impounded they are in custodiu 
 legis (<-/). 
 
 Replevin was of cattle taken in A. The defendant avowed the 
 taking in A. under a demise of certain premises of which B. was par- 
 cel, and because the cattle were damage feasant in B. he took them 
 and drove them through A. in his way to the pound ; and upon general 
 demurrer the avowry was held to be well pleaded (e). 
 
 Ncn demisit ; nothing in arrear ; nothing in arrear for part of 
 the rent and tender of the residue ; are good pleas to an avowry 
 for rent (f). 
 
 So, a tender and refusal may be pleaded to such avowry, without 
 bringing the money into Court ; because if the distress were not 
 rightfully taken, the defendant must answer the plaintiff his damages (g). 
 
 After an avowry for rent arrear the plaintiff may pay into Court the 
 rent for which the defendant avows, because the demand is certain: 
 but not where the damages are unliquidated (/j). 
 
 That the avowant afterwards used or sold the cattle or goods dis- 
 trained, may also be pleaded (/'). 
 
 So, to an avowry for rent, the tenant may plead payment of a 
 ground-rent to the original landlord, which he paid to protect himself 
 from a distress ; for it is a payment of so much to the immediate 
 landlord (k). 
 
 But the plaintiff cannot plead a set-off; because this acr : on is 
 founded in a tort, and the stat. 2 G. 2. does not extend to such 
 actions : besides a set-off supposes a different demand arising in a 
 different right (/). Neither can a mutual demand be given in 
 evidence, w'^re the defendant justifies under a distress.- — Yet it 
 is said, that he may plead a mutual debt of more than the rent by 
 way of special plea to the avowry (m). At all events, payment may 
 be pleaded. Therefore where to an avowry for rent, the tenant 
 
 {a) Cro. Jac. 44a. (!>) Esp. N. P. 357. 8. Co. 147- a, (0 Hut. 13. 
 
 00 Cro. Eliz. 813. (e) 2 Bos. & Pul. 480. (/) Bac. Abr. ut ante. 
 
 (g) Bull. N. P. 60. (/,) 1 H. Bl. R. 24. (0 C° m - Di S- «' anU - ( K - r 9-) 
 
 U) 4 T. R. 512, 14. (/) Bac. Abr. ut ante. Bull. N. P. 181. (w) Bar. 450.
 
 436 Of shozcries. [Chap. XVIIf. 
 
 pleaded payment of a ground-rent to the original landlord, it was 
 holden good (a). 
 
 in an avowry for non-payment of rent, a plea in bar is de injur, 
 sua propria ahsq. hyc, quod prad. R. cepit, CSV. Non cepit is an good 
 traverse, but lie should pursue his title, and de injur, sua propria is 
 enough (/'). 
 
 After issue joined upon a plea in bar to an avowry, the Court will 
 not suffer the plea to be withdrawn and the avowry confessed, without 
 consent, for the avowant will los: his costs (c). 
 
 As to what shall be a departure, replevin was for taking the plain- 
 tiff's goods and chattels, to wit, a lime-kiln, avowry for rent; plea in 
 bar, that the lime-kiln was affixed to the freehold : the Court held the 
 plea in bar bad, because it was a departure from the declaration, which 
 had treated the lime-kiln as a chattel (d). 
 
 In an avowry for a distress for rent, the avowant was to shew a 
 seisin, and such seisin bv the stat. 32 H. 8. c. 2. must be alleged 
 within fifty years before the making of the avowry or conusance: and 
 though by stat. 21 H. 8. c. 19. the lord need not avow upon any per- 
 son in certain, vet he must allege seisin by the hands of some tenant 
 in certain, within fifty years. — Where the commencement of the rent 
 appears, seisin is not material. 
 
 The stat. 32 II. 8. c, 2. which limits an avowry or conusance for 
 rent, suit, cr service, to a possession of fifty years next before making 
 the avowry, ISc. does not extend to a new rent created by Act of 
 Parliament'. 
 
 Gf A^oicr\, Ifc. for Catite damage feasant. — Respecting avowry or 
 conusance for damage-feasant, if the defendant avows, or makes conu- 
 sance for damage feasant, he must shew that the place where, C5V. is 
 3;is freehold, cr the freehold of B. under whom he makes conusance : 
 and if he says that he himself or B. was seised, he must say of what 
 estate in fee, tail, or for life. 
 
 So, the bailiff who distrains for damage feasant in right of a devisee, 
 must set forth what estate the devisor had; it is not sufficient to say in 
 general, that he was seised — the stat. : 1 G. 2. applies only to avow- 
 ries for rent arrear (y). 
 
 in replevin the tide was by a lease made by a parson, and the avowry 
 was that A. was seised cf the rectory of II. and made the lease with- 
 out shewing that he was parson: and by the Court, that would have 
 been a good exception, had it net been said in the avowry, that he was 
 sosed /. ; .' jure eeeushVj wmen s.uppues ad v r '. 
 
 The general rule indeed in pleading is, that where a title is made 
 
 (a) 4 ' r - R.jir. ib) Co,;-. !>:... : ..■•■'•. r jK. 16.) () IblJ. {3 K. ac.J 
 
 ; .'. R. 5-5. '(,: B.C. A,: tit. < Ucplsvw, :.:."• [?■) E.». 172-844. 
 
 U r-u.
 
 Sect. II.] Of Avowries. 497 
 
 under a particular estate, the commencement of that estate must be 
 shewn, but that an estate in fee may be alleged generally (a). 
 
 In an avowry the issue was, whether the place where, &a was the 
 freehold of the avowant or not, and it was found by the verdict, that 
 it was the freehold of the avowant's wife. Et per Cur. — It is found 
 against the avowant, for when he saith his freehold, it is to be intended 
 his sole freehold, and in his own right (b). 
 
 Though the cattle of a stranger cannot be distrained unless they 
 were levant and couchant, yet it must come on the other side to shew 
 that they were not so (c). 
 
 In replevin for bona, cattala, et averia, a conusance of the whole and 
 a justification for part is bad; for if a distress be entire, and it is 
 wrong in part, it is bad for the whole (d). 
 
 If a man takes a distress for a thing for which he had good cause 
 of distress, but had good cause of distress for another thing, if a re- 
 plevin is brought and he comes into Court, he may avow for which he 
 pleases [e). 
 
 To an avowry that the freehold was in the defendant or the party 
 under whom he makes conusance, the plaintiff say in bar, that it is his 
 freehold; or the freehold of A. and by licence he put his cattle there; 
 or, a special title by devise, fine, demise, &c. (f). 
 
 So, the plaintiff may plead in bar to an avowry, de son tort, with a 
 traverse that locus in quo, is'c. is parcel of the tenements alleged to be 
 held (g). 
 
 Replevin for taking his cattle in the road, avowry for damage- 
 feasant in the four acres, so took them there and drove them along 
 the road to impound them: plea, in bar, that the road is not parcel of 
 the four acres; upon demurrer, the avowry was held well enough and 
 the plea ill *, fcr by connecting the beginning of the avowry and conusance 
 with the latter end thereof, it appeared to be one entire transaction (Z>). 
 
 So, the plaintiff may plead in bar " tender of amends" (i). 
 
 If the defendant pleads that he was seised of three acres */; locus hi 
 quo, tsc it is sufficient, without saying how many acres the locus in 
 quo, IrV. had. 
 
 Where there were two issues, and one only found for the avowant, 
 he had judgment. — Where the parties agree in the fact?, the circum- 
 stance of the jury finding otherwise is not material (£). 
 
 By stat. 21 Hs S. c. 19. ail plaintiffs and defendants shall have like 
 pleas and like aid briers in all such avowries, conus.:neer>, and justifica- 
 
 $a) Bac. Abr. tit." Rc;Avi:i" &c. (F.) Esp. 272 S44. Ibid. (.) Ai.!. 
 
 (</) IMd. (0 Ibid- (/') Co-. Dig. tit. « Pk-s Ar." (3 K. 52.) 
 
 ( -) Ibid, ^3 K, 16.) (A 3 \ViI5. 295. % I*.'! £■: 1':,'-. ■-,!:.. {■) Com. Dig. ut arrfe, 
 
 (j K. 32.} {':, IA.. -'.A. ui ar-f.: ibid. 
 
 K k
 
 498 Of the Verdict and Judgment [Chap. XVIII. 
 
 tions (pleas of disclaimer only excepted,) as they might have had be- 
 fore the Act. 
 
 Section III. Of the verdict and judgment in Replevin. 
 
 On the execution of the writ of replevin by the sheriff, the beastj 
 distrained are actually returned to the plaintiff, so that he hath the 
 possession and use of the cattle pending the suit ; consequently if the 
 plaintiff in replevin hath judgment, it a:n only be for damages. 
 
 At common law (even before the statute of Gloucester) the plaintiff 
 in replevin could recover damages, and by that statute his costs. But 
 the avowant or defendant was not entitled to either, till the 7th H. 8. 
 c. 4. which gives damages and costs to every avowant, and to every 
 person making conusance, or justifying as bailiff in replevin, for any 
 rent, custom, or service, if his avowry, conusance, or justification be 
 found for him, or the plaintiff be otherwise barred Also, by stat. 21 H. 
 8. c 9. it is enacted, " That everv avowant, and every other person 
 or persons that make any avowry, justification, or conusance, as bailiff 
 or servant to any person or persons in any replegiare or second deliver- 
 ance, for rents, customs, services, or for damages- feasant, or for rent 
 or rents, upon any distress taken in any lands or tenements, if the same 
 avowry, or conusance, or justification, be found for them or the plain- 
 tiffs in the same be nonsuit, or otherwise barred, that then they shall 
 recover their damages and costs against the said plaintiffs, as the same 
 plaintiffs should have done, or had if they had recovered! in the replegiare 
 or second deliverance found against the defendants (<?)." 
 
 Neither this statute, nor that of 43 Eliz. [if the defendant avow as 
 overseer for a distress for a poor's rate], tie the inquisition up to the 
 same jury as are returned or impannelled, as the stat. 17 C. 2. c. 7. (of 
 which hereafter) does. If therefore, there is a verdict for the plaintiff, 
 the jury usually assesses the damages : or the jury after verdict may be 
 dismissed, and damages be assessed by the Justices, with the defen- 
 dant's consent. Or if the jury do not assess the damages, and the 
 goods, is'c. should be detained, the plaintiff may make a suggestion 
 thereof upon the roll, whereupon a writ shall go to enquire of the 
 value of the cattle, isc. and damages : upon which the plaintiff shall 
 have judgment for born (y). 
 
 If there be judgment for the plaintiff upon a relict a verifcatione t 
 cognovit actio nem nil dicit, i<?c. or for want of a replication to his plea in 
 bar to the avowry, or upon a demurrer, a writ of enquiry of damages 
 
 :» 3 Sell. Pract. 171. (l>) Ibid.
 
 Sect. III.] in Replevin. 499 
 
 shall be swarded : or at the request of the plaintiff", by the assent of 
 the defendant, the Justices may assess the damages without such 
 writ (a). 
 
 But if there be judgment for the plaintiff", quod adhuc dethiet by de- 
 fault after appearance, there shall be a special writ of enquiry for the 
 value of the goods or cattle and damages. — But where the taking was 
 lawful, the damage shall be only for the detainer ; as where goods are 
 taken damage-feasant, and detained after amends tendered. 
 
 If the plaintiff lets judgment go by default, or becomes nonsuit, 
 the defendant is entitled to his judgment pro retcrno, and to a writ of 
 enquiry, to assess his damages and cost; or if the defendant get a ver- 
 dict, the jury may assess the damages, or if they omit so to do a writ 
 of enquiry may go ($). 
 
 The judgment after verdict for the defendant need not express the 
 return to be irreplevisable, because now it necessarily must be so, 
 since the statute of Westm. 2. Therefore a judgment in replevin 
 " that the defendants have a return of the cattle, and recover their 
 damage and costs assessed by the jury," SsV. is good, either as a judg- 
 ment at common law, though the return be not adjudged irre- 
 plevisable, or as a judgment under stat. 21 H. 8 c. 19. which 
 entitles the defendants to damages and costs: but not under stat. 
 17 C. 2 (c). 
 
 If the defendant upon the judgment de ret. hab. sue out a writ pro 
 r«\ hab. and the sheriff" cannot find the cattie, he may have a capias in 
 withernam upon the return of the elongata. But if the defendant has 
 judgment for a return irreplevisable, if the owner of the cattle or 
 goods tenders all that is due on the judgment and it is accepted, he 
 shall have a writ of delivery for the goods ; so if he tenders the whole 
 upon the judgment which is ascertained upon the avowry, and is re- 
 fused, he shall have detinue (d). 
 
 In avowry for damage feasant, defendant had a verdict, and ad- 
 judged that he shall have a ret. hab. for the cattle, and a ca. sa. for the 
 damages ; but if the party tender the costs and damages, the sheriff", 
 after such tender, ought not to execute the ret. hab But if, for want 
 of such tender, he do execute the ret. hab. and afterwards the costs 
 and damages are paid, a writ si constare poterit lies upon suggesting 
 that the costs, life, are paid, and this is to re-deliver the distress, ar.d 
 is called " a writ of restitution (e)." 
 
 It is now settled, that pleadings in replevin, are within the stat. 4 
 Ann. c. 16. therefore, where some issues in the replevin are found 
 for the plaintiff which entitle him to judgment, and ome for the de- 
 
 (a) 2 Sell. Pract. -272. 
 
 (£) Ibid. 
 
 {:) 4T.R.509, 
 
 (J) a Sell. Pract. 273. 
 
 (?) Ibid. 
 
 Kk 2 

 
 500 Of the Non Pros., Nonsuit, #c. [Chap. XVIII 
 
 fendant, the latter must be allowed the costs of the issues found for 
 him out of the general costs of the verdict ; unless the Judge shall 
 certify that the plaintiff had probable cause for pleading the matters 
 on which those issues are joined (a). 
 
 An avowant shall pay costs on the special avowries found against 
 him ; and shall not have costs on the affirmance of a judgment in his 
 favour on a writ of error (b). 
 
 If the plaintiff plead several pleas in bar, upon which issues arc. 
 joined, and Home issues are found for the plaintiff, and some for the 
 defendant, the latter is entitled in C. P. to such costs of the trial, as 
 relate to the issues on which he has succeeded, as well as to the costs 
 cf the pleadings, liut if a defendant after trial, and verdict for the 
 plaintiff, obtain judgment non obstante veredicto f in consequence of the 
 plaintiff's pleas in bar being bad, he is not entitled in that Court, to 
 any costs upon the pleadings, subsequent to the pleas in bar, because 
 he should have demurred to them: indeed if the avowant will not take 
 advantage of a fault in the plaintiff's pleadings when he has the oppor- 
 tunity of so doing, he becomes particcps criminis (c). 
 
 The certificate of probable cause is not required to be made in 
 Court, at the trial of the cause; and where the judge refuses to 
 grant it, the Court have not a discretionary power, whether they 
 will allow the plaintiff any costs at all ; but are bound by the 
 statute to allow him some costs, though the quantum is left to their 
 discretion (d)> 
 
 Of the Non P?'os. } Nonsuit, ferdict, and Judgment under 
 Stat. 1? Car. 2. c. 7. where tha Distress teas for Rent. 
 
 If the cause has been removed into the superior Court by the plain- 
 tiff, and after the defendant has appeared he docs not declare or pro- 
 ceed therein ; or if the cause has been removed by the defendant, and 
 a rule having been served on the plaintiff", he does not declare or pro- 
 ceed therein : the defendant may in these cases sign a non pros., enter 
 U P judgment pro retorno habcndo> and, if the original distress were made 
 for rent, he may proceed to execute a writ of enquiry of damages, 
 which Is the better way than taking out a writ pro retorno babendo, be- 
 cause that writ may be superseded by the plaintiff suing out a writ of 
 second deliverance, as has been seen before (e). 
 
 For the stat. 17 C. 2. c. 7. which is an Act for the more speedy and 
 
 f«) a Sell. Prsct. »73. U) Ibid. (r) i Tidd's Pract. 6:6. (<•/) 3Lid. 61". 
 
 f-) aKsTLPract. 267.
 
 Sect III.] Of the Non Pros., Xo/mdt, §c. 501 
 
 effectual proceeding upon distresses and avowries for rent, after recit- 
 ing that " Forasmuch as the ordinary remedy for arrearages of rents 
 is by distresses upon the lands chargeable therewith ; and yet never- 
 theless, by reason of the intricate and dilatory proceedings upon re- 
 plevins, that remedy is become ineffectual:" by Sect. 2. enacts, "That 
 whensoever any plaintiff in replevin shall be nonsuit before issue 
 joined in any suit of replevin by plaint or writ lawfully returned, 
 removed, or depending in any of the King's Courts at West- 
 minster, that the defendant making a suggestion in nature of an 
 avowry or cognizance for such rent, to ascertain the Court of the cause 
 of distress, the Court upon his prayer shall award a writ to the sheriff 
 of the county where the distress was taken, to enquire, by the oaths 
 of twelve good and lawful men of his bailiwick, touching the sum 
 in arrear at the time of such distress taken, and the value of the 
 goods or cattle distrained: and thereupon notice of fifteen days shall 
 be given to the plaintiff or his attorney in Court, of the sitting of 
 such enquiry; and thereupon die sheriff shall enquire of the truth of 
 the matters contained in such writ by the oaths of twelve good and 
 lawful men of his county; and* upon the return of such inquisition, 
 the defendant shall have judgment to recover against the plaintiff the 
 arrearages of such rent, in case the goods or cattle distrained shall 
 amount unto that value; and in case they shall not amount to that 
 value, then so much as the value of the said goods and cattle so dis- 
 trained shall amount unto, together with his full costs ot suit, and 
 shall have execution thereupon by fieri facias, or elegit, or otherwise, 
 as the lav/ shall require : and in case such plaintiff shall be nonsuit 
 after cognizance or avowry made, and issue joined, or if the verdict 
 shall be given against such plaintiff, then the jurors that are impan- 
 nelled or returned to enquire of such issue, shall, at the prayer of the 
 defendant, enquire concerning the sum of the arrears, and the 
 value of the goods and cattle distrained: and thereupon the avow- 
 ant, or he that makes cognizance, shall have judgment for such 
 arrearages, or so much thereof as the goods or cattle distrained 
 amount unto, together with his full costs, and shall have execution 
 of the same by fieri facias, or elegit, or otherwise, as the law shall 
 recuire." 
 
 beet. 3. gives the like remedy to the avowant or party making 
 cognizance fur any rent, upon a judgment given for him upon de- 
 murrer. 
 
 Sect. 4. enables the party or his representatives to distrain again 
 for the residue of the arrears, in case the value of the cattle, <S»: 
 taken by the first distress shall not be the full value oi the arrears dis- 
 trained fur.
 
 502 Of the Non Pros., Nonsuit, %c. [Chap. XVIII. 
 
 By the above statute, in case of a nonsuit or non pros, before issue 
 joined, defendant may enter a suggestion upon the record, in the 
 nature of an avowry or conusance, and thereupon sue out a writ of 
 enquiry ; but in case of a nonsuit at the trial, or of a verdict for de- 
 fendant, the jury at the trial must enquire of the rent in arrear, and 
 the value of the goods distrained (a). 
 
 If they oiv.it to make such enquiry, ne other jury can after- 
 wards m ;ke it ; no writ of enquiry therefore can go, the defendant 
 cannot c i T -.r his judgment according to the statute and proceed to 
 execution by fi. fa or ca. sa but must resort to his common law 
 jud :.',..:;, ...id sue cut his writ de reform habendo : and this if the 
 jury omit to enquire either of the rent or the value of the goods, 
 for they must assess both: as the statute must be strictly complied 
 wit!: [b). -But this is only in cases of rent within the statute; and 
 not in those of nonsuit in other cases: indeed Lord Hardivicke has laid 
 it down, that in every ease, unless where the Court is tied up by this 
 statute, a writ of enquiry mav be granted in order to do complete 
 justice (<:). 
 
 If the plaintiff become nonsuit, the defendant is not bound to take 
 Jus remedy under the statute, but has his option either to proceed by 
 writ of enquiry under it, or to bring his action against the plaintiff 
 and his sureties on the replevin bond (d). 
 
 Nor does the statute take away or alter the judgment at com- 
 mon law ; it only gives a further remedy to the avowant. So that 
 after a non pros, plaintiff may still enter his judgment pro reform : but it is 
 better to make a suggestion, and proceed by writ of enquiry ; because 
 if the plaintiff sue out a writ of second deliverance, it will operate, as 
 has been observed, as a supersedeas of the ret. hab. but not so to the 
 writ of enquiry : for by this statute, the legislature intended that 
 the proceeding by writ of enquiry, fi. fa. and elegit, should be final 
 for the avowant to recover his damages, and that the plaintiff should 
 keep his cattle notwithstanding the course of awarding a ret. hab. 
 winch is the right judgment, and is still entered up as before the 
 statute ' e). 
 
 It plaintiff in replevin is nonsuited, the defendant is not bound to 
 have his damages assessed by the jury under 17 Car. 2. c. 7. or to take 
 the earliest moment to prosecute his writ de retorno habendo : and he 
 mav again distrain the same goods for rent subsequently accrued pre- 
 viously to executing his retorno habendo without waiving his action 
 against the sureties in the bond (/), 
 
 (.7) 2 Sell. Pract. 269. ib) Ibid. (c) Ca. temp. Hardw. 13?. 
 
 (d) % Sell. Pract. 269. (0 Ibid. (/) 1 Taunt. 218.
 
 Sect. III.] Of the Non Pros., Nonsuit, §c. JOS 
 
 Where the judgment is for the defendant after verdict, if the jury 
 have not enquired at the trial as the statute directs', it must be 
 ^entered up as a common law judgment pro. ret. hab. But if die jury 
 have assessed damages, but not the amount of the rent, &c. it may 
 be entered as a judgment under stat. 21 H. 8. c. 19: and the Court 
 will permit the defendant to amend Ins judgment if entered as under 
 the statute, and net warranted thereby, to make it a common law 
 judgment (a). 
 
 Where the defendant made conusance for rent in arrear, and the jury 
 found a verdict for him, and damages to the amount of the rent claimed 
 in his conusance, without finding either the amount of the rent in 
 arrear or the value of the cattle distrained, and judgment was entered 
 for the damages assessed, the Court permitted the defendant to amend 
 his judgment, and to enter a judgment pro vet. hab, after a writ of 
 error brought {b}. 
 
 In replevin the plaintiff avowed for a year's rent; verdict for the 
 defendant; but no value found for the jury. It was moved for a writ 
 of enquiry under the stat. 17 C. 2. c. 7. to ascertain the rent in arrear, 
 and the value of the cattle. Gould J. doubted whether it could be 
 granted to supply a defective verdict in case of rent ; though after a 
 judgment by default it would certainly lie; and added, that Burrow's 
 note of Andrews and 'fames, M. 24. G. 2. B. R. appeared to be a 
 judgment by default. However, no cause being shewn, the rule was 
 made absolute (c). 
 
 If there has been no avowrv, the Court will set aside a writ of en- 
 quiry obtained, and the inquisition thereon ; for the avowry is in the na- 
 ture of a declaration, and is the only ground of an enquiry, for the de- 
 fendant in replevin (d). 
 
 The stat. 11 G. 2. c. 19. s. 22. gives the defendant or defendants in 
 replevin making avowry or conusance upon distresses for rent, relief, 
 heriot, or other service, in case the plaintiff in the action shall become 
 nonsuit, discontinue, or have judgment against him, double costs. — The 
 avowry must be for taking the goods, isfc as a distress 5 else it will be 
 out of the statute (*). 
 
 This statute does not extend to a rent-charge, or seisure for a heriot 
 custom (f). 
 
 Where a statute gives double costs, they are calculated thus : 1. the 
 common costs ; and then half the common costs. If treble costs, 1. 
 the common costs ; 2. half of these, and then half of the latter (g). 
 
 (.) 1 Taunt. 271. 4 T. R. 509. (J) 3 T. R. 349- (0 * B! - R- 7(>3- 
 
 (d) Bac. Abr. tit. " Replevin," &c. (D.) (<•) % SeJ.1. Pract. 274, 
 
 (/) I Tidd's Pract. 891. (g) Ibid,
 
 C 501 ] 
 
 Section IV. Of the Remedies where the Pledges preve 
 
 insufficient. 
 
 1. By miction against the Sheriff. 
 
 £. By Scire Facias against the Pledges. 
 
 3. By Proceeding on the Replevin Bond. 
 
 1. Of the Action against the Sheriff. 
 
 The sheriff, upon making replevin, is bound, as has been before 
 stated, to take pledges, and they must be sufficient pledges ; for if they 
 are not, an action on the case will lie against him \ the Court, however, 
 will not proceed in a summary way, by granting an attachment against 
 the sheriff for neglecting to take a replevin bond (a). 
 
 In case pledges are taken and they prove to be insufficient, the parry 
 has a double remedy, viz. against the sheriff and against the bail « 
 against the sheriff by action, and. against the bail, if the distress was 
 not for rent, by scire facias ; if for rent, either by scire facias, or upon the 
 replevin bond, assigned according to the statute (b). 
 
 If insufficient pledges cle retorno habendo be taken by the officer of the 
 Court below in the replevin, the remedy against him is by action, and 
 the Court of Common Pleas will not order him to pay the costs reco- 
 vered by defendant in replevin (c). 
 
 The pledges taken bv (he sheriff when the distress is not for tent are 
 according to the statute of Westm. 1. and may be by bond, and that 
 too of the plaintiff himself only, for the sheriff being answerable for 
 the sufficiency of the pledges, may take the security as he pleases, since 
 it is at his own peril (d\. — But he cannot take money or cattle as a 
 pawn or pledge (f). 
 
 The pledges taken when the distress is for rent are governed bv stat. 
 II G. i. c 19. and must be by bond with two sureties, and ou^ht to 
 be at least in double the value of the goods distrained. The sheriff, 
 the under-sheriff, and the replevin-clerk, are, as has been before ob- 
 served, aii iiabie to the, defendant in replevin for the sufficiency of the 
 pledges cle retorno habendo if ). 
 
 The mode of proceeding on the stat. 11 G. 2. c. 10. is now gene- 
 rally preferred to the old remedy by sci. fa. where the distress was for 
 rent; and it is no: affected by the 17 C. 2. c. 7. for where, in pur- 
 suant of that statute, the avowant had judgment for want of a plea 
 in bar, it was held that he had two methods of proceeding in his elec- 
 
 ( i! z T. R. 6:7. 2 Sell. Pract. :6:. {b) Ibid. Gilo. L. of Rep. c::. 
 
 (0 1B0..& Pul. N. R. 292. (0 Ibid. 97. (OCro.Car.446. 
 
 (/) a BLR. mo.
 
 Sect. IV.] Of the Remedies, §c. 305 
 
 tion ; namely either to execute a writ of enquiry or to sue upon the 
 replevin bond ; the plaintjff not having prosecuted his suit with ef- 
 fect (a). 
 
 The action ought to be brought in the name of the person making 
 conusance, where there is no avowant on record (5). 
 
 In the action against the sheriff some evidence must be given by the 
 plaintiff of the insufficiency of the pledges ; but very slight evidence is 
 sufficient to throw the proof on the sheriff ; for the sureties are known 
 to him, and he is to take care that they are sufficient (r\ 
 
 This action against the sheriff will lie without any scire facias previ- 
 ously sued out against the bail. But in the case before-mentioned, after 
 judgment pro ret. and an eloignment returned, the Court on motion 
 granted a rule against the sheriff, under-sheriff, and replevin-clerk, to 
 pay the defendant 57/. 15J. the amount of the verdict in replevin, (da- 
 mages and costs), together with the costs of the application (c/). 
 
 Much doubt has been entertained, and the Courts still differ as to the 
 quantum of damages which the plaintiff ought to recover in this action 
 against the sheriff for taking insufficient pledges. 
 
 In the King's Bench it is held, that the plaintiff cannot recover be- 
 yond the value of the distress. The argument is, that the duty of 
 the sheriff as prescribed by the Act, is to take the bond for prosecuting 
 the suit and for a return of the goods, if a return shall be awarded ; 
 the bond therefore would be satisfied by returning the goods taken. If 
 so, the value of those goods seems to be the true measure of damages 
 to be given by this action. That by the stat. West in. 2. it is specifically 
 mentioned, that if any take pledges otherwise, he shall answer for the 
 price of the beasts •, and that the 1 1 G. 2. does not enlarge the sheriff's 
 responsibility in this respect (e). 
 
 But in the Common Pleas the direct contrary was hclden, for that 
 Court held that the plaintiff might recover the amount of his rent, his 
 costs in the replevin suit, the value of the goods, and whatever othev 
 damages the jury might give him, even beyond the penalty of the re- 
 plevin bond, 1. e. more than double the value of die goods distrain- 
 ed (f ). However, this doctrine was shortly after over-ruled : and the 
 Court held the sheriff liable to the extent of double the value of the 
 goods distrained, but no farther ; by analogy to the liability of the 
 sureties (g). 
 
 2. Of the Remedy hi/ Scire Facias against ike Pledges. 
 
 Another remedy which the defendant in replevin has, if the plaintiff 
 does not make a return of the goods when a return has been awarded, 
 
 (a) Gift. L. of B er. 1 25. 2 Wils. 42. (/,) 1 Pul!. & Bo;. 378. (.) Bull. N. F. 60. 
 
 (d) 2 Sell. Pract. 263. 2 Bl. R. 12:0. (.-) 5 Sell. Pi-act. 263. (/) Ibid. 264. 
 
 [g) Ibid. 547. Wffles, 375-
 
 50(5 Of the Remedies, §c. [Chap. XVIII. 
 
 is, by scire facias against the pledges. Before a scire facias issues, a writ 
 pro ret. hab. must have been sued out, and an elongata or eloigninent 
 be returned by the sheriff. After which, if the names of the pledges 
 be not known, an application may be made to the replevin-clerk, and 
 if he refuses or delays to tell them, the Court on motion will make a 
 rule upon him for that purpose (a). 
 
 If the plaint has never been removed, the defendant may sign a nonpros. 
 in the Court below, and have a precept in the nature of a scire facias b). 
 
 Note. The two preceding remedies are used where the distress is not 
 for rent, as well as where it is. 
 
 S. Of the Remedy on the Replevin Bond. 
 
 When goods are taken in distress for rent, and replevied, the dis- 
 trainer has no lien on the goods, but is left to his remedy on the re- 
 plevin bond (f). 
 
 Tne usual remedy, therefore, where the distress is for rent and a re- 
 plevin bond is entered into, according to stat. 11 G. i. c. 19 is by 
 taking an assignment of the replevin bond, and bringing an. action 
 thereon against the pledges in the defendant's own name (d). 
 
 By the statute, the sheriff is ordered, at the reo^iest and costs of the 
 avowant, or person making conusance, to make an assignment. 
 
 A replevin bond may be assigned to the avowant only, or he may 
 bring his action upon it without joining the party making conusance (1?). 
 
 A defendant in replevin is, indeed, entitled to an assignment of the 
 bond, if the plaintiff in replevin do not appear in the County Court 
 and prosecute according to the condition (f) ; which condition is not 
 satisfied by a prosecution in the County Court, but the plaint, if re- 
 moved by refalo into a superior Court, must be prosecuted there with 
 effect, and a return made, if adjudged there (g). In such case, the de- 
 fendant may sue on the bond as assignee of the sheriff in the superior 
 Court, though the replevin be not removed out of the County Court ; 
 averring in his declaration, that the plaintiff did not appear at the next 
 County Court and prosecute according to the condition of the bond (h). 
 
 The bond may be assigned four days exclusive after the time limited 
 therein for plaintiff to prosecute his suit (i). 
 
 The action must be brought in the same Court in which the refalo is 
 returnable. The mode of assigning and proceeding is the same as on 
 a bail-bond (4). 
 
 The two sureties in a replevin bond, are together liable only to the 
 amount of the penalty in the bond, and the costs of the suit in the 
 bond (/). 
 
 (a) 2 Sell. Pract.266. (I) 2 Wills. 41. (c) 1 Br. R.427. {d) 2 Sell. Fract. 266. 
 
 (0 1 Pull.;. Do:.. 37 8. (/)5 T.R. 19J. ( r ) 1 Pull. & Bos. 410. {'■) 5 T.R.. 19J. 
 (J) 2 Sell. Pract. 266. (i) Ibid. 267. (A 1 Taunt, 218,
 
 [ 507 ] 
 
 CHAPTER XIX. 
 
 Remedies for Tenants against Landlords 
 (continued). 
 
 Of the Remedies for an unfounded^ irregular, or excessive 
 
 Distress. 
 
 Section I. For Rent pretended to be Arrear. 
 Section II. For other supposed Right to distrain. 
 
 T has been seen that where the goods or cattle of a person have 
 been taken as a distress, whether 0:1 the ground that they are liable 
 for rent arrear or damage-feasant, the party so distrained upon may 
 contest the distrainer's right by an action of replevin ; beside that 
 action, however, the law affords other remedies where the distress 
 is unfounded ; these are by action of trespass de bonis asportatis, or 
 quare clauswn frsgitj for damages ; or trover for the value of the thing 
 distrained. 
 
 Trespass quare chnisum fregit was the remedy commonly resorted to of 
 old, not merely as a remedy for a distress wrongfully taken, but as a 
 means of trying the title to lands and tenements, the title frequently 
 coming into question in the course of that action ; that action however 
 has of late years been in some degree superseded by that of replevin in 
 the one case, and ejectment in the other. 
 
 Still, however, these actions of trespass, and that of trover, are 
 open to the party who means to contest the validity of a distress. The 
 proceedings have in effect much similarity ; but in respect to proof of 
 title (where the distress was for damage-feasant), the action of replevin 
 being more strict than that of trespass for taking and carrying away 
 the goods, the latter remedy is often preferred. 
 
 7
 
 [ 508 ] 
 
 Section I. Remedies for unfounded Distress for Rent 
 pretended to be Arrear. 
 
 To entitle a man to bring trespass he must, at the time when the act 
 was done which constitutes the trespass, either have the actual possses- 
 sion in him of the thing which is the object of the trespass, or else he 
 must have a constructive possession in respect of the right being actu- 
 ally vested in him (a). 
 
 This action lies for an unlawful taking ; as if the distress be made at 
 night. So if beasts of the plough had been taken when other sufficient 
 distress could have been had. So, if doors have been broken open (or 
 enclosures thrown down), to make it, for the outer door can in no case 
 be broken open, except under the direction of stat. n G. 2. c. 19. of 
 which we have before treated. 
 
 But in distress for rent, if the outer door be open, the person dis- 
 training may justify breaking open an inner door or lock to find any 
 goods which are distrainable (/'). 
 
 So, even where trespass was for breaking and entering the plaintiff's 
 house and taking his goods, and the case in evidence was that the de- 
 fendant having with him a constable, had entered the plaintiff's house 
 to make a distress for rent. After he had told his business and began 
 to take an inventory, the plaintiff's wife tore his paper, beat him and 
 the constable cur, and then blocked up the door; about an hour after 
 the defendant with several others returned and demanded admittance, 
 which being refused, lie broke open the doors. It was ruled by IV ti- 
 met J. that the distress having been lawfully begun and not deserted, 
 but the defendant compelled to quit it by violence, tins was a re-continu- 
 ance of the first taking and so was lawful, though he could not when 
 he first came have so broken open the doors (c). 
 
 Trespass, cr Case. — The stat. 2 IV, Iff M. sess. 1. c. 5. s. 5. pro- 
 rides, " that in case any distress and sale as aforesaid, shall be made by 
 virtue or colour of that Act, for rent pretended to be arrear and due., 
 where in truth no rent is in arrear or due to the person or persons dis- 
 training •, or to him or them in whose name or names, or right, such 
 distress shall be taken as aforesaid, that then the owner of such goods 
 or chattels distrained and sold as aforesaid, his executors or administra- 
 tors, shall and may, by action of trespass, or upon the case, to be 
 brought against the persons so distraining, any or either of them, his 
 or their executors or administrators, recover double of the value of the 
 goods or chattels so distrained and sold, together with, full costs of 
 suit." 
 
 •■•■ Co. J.-.c.^r iT. R.480. (*) EliH.N.P.[8j.] (V tv.y.p.jgj.
 
 Sect. II.] Remedies for an unfounded, $c. 509 
 
 The plaintiff gave a note of hand for rent arrear, and took a receipt 
 for it when paid, the defendant afterwards distrained for rent, the 
 plaintiff brought trespass ; and it was holden, that notwithstanding this 
 note, the defendant might distrain, for it is no alteration of the debt till 
 payment. — But if A. indorse a note to B. for a precedent debt, and B., 
 give a receipt for it as money when paid, yet if he neglect to apply to 
 the drawer in time, and by his laches the note is lost, it will extinguish 
 the precedent debt, and in an action he would be nonsuited (a). 
 
 If a landlord accept a bond for rent, this does not extinguish it, for 
 the rent is higher, and the acceptance of a security of equal degree is 
 no extinguishment of a debt, as a stature staple for a bond : but a 
 judgment obtained upon a bond is an extinguishment of it [b). 
 
 To covenant for rent against three defendants, it was pleaded, that 
 of rent 41/. was paid ; that of the residue, two of the defendants had 
 paid their shares, and that the defendant, Mitchel, gave the plaintiff a 
 promissory note for his share, payable at a banker's ; that such note was 
 dishonoured, whereupon the plaintiff sued Mitchel and had judgment by- 
 default on such note, which judgment was still unsatisfied. When the 
 plea was pleaded, the defendant was under terms to plead issuably. 
 The plaintiff treated it as no plea under a Judge's order and signed 
 judgment for want of a plea, On cause being shewn, the defendant's 
 counsel contended that the plea was good ; for that the action on the 
 covenant averred in the judgment on the note, and the defendant had a 
 right to avail himself of the point. L. Kenyon. " The judgment is a 
 merger of the original cause of action where it is obtained immediately 
 on the original cause itself; but it is no merger, where it is on a colla- 
 teral point, unless the fruits of it be obtained." The defendant's coun- 
 sel then said, that at any rate the plaintiff ought not to have signed 
 judgment; he ought to have demurred. 3 Bur. 1788. L. Kenyon. "I 
 suspect that this plea is founded on knavery; it goes to defeat the justice 
 of the case : but I fear that the plaintiff was not justified in treating it as 
 no plea. He ought to have demurred. Rule absolute («•). 
 
 Section II. For other supposed Right to distrain. 
 
 If the distress was made for other supposed cause, than under pre- 
 tence of rent arrear, when in truth it was unfounded, trespass also 
 lies for the illegality. 
 
 After judgment vacated, and restitution awarded, the defendant 
 brought trespass against the plaintiff for taking the goods, and the Court 
 
 fj) Bui!. >:. P. 183. (i) Ibid. (0 Drake -v. Mitchtl, et al. M. T. .\Z G. 3. Ts. MSS.
 
 510 Remedies for an unfounded, [Chap. XIX. 
 
 held that the action would lie ; for by vacating the judgment it is as if 
 it had never been, and is not like a judgment reversed by writ of error. — 
 But, in such case, it would not lie against the sheriff, who has the 
 King's writ to warrant him ; but the party must produce not only the 
 writ, but the judgment (<?). 
 
 Where the action is transitory (as trespass for taking goods) the plain- 
 tiff is foreclosed to pretend a right to the place, nor can it be contested 
 upon the evidence who had the right: therefore possession is justifiable 
 enough for the defendant, and it is sufficient for him to plead that he 
 was possessed of Blackacre, and that he took the goods damage-feasant 
 without shewing title. — But it is otherwise in trespass quare clau sum /re- 
 git, because there the plaintiff claims the close and the right may be 
 contested [b). 
 
 Trespass for taking and detaining his cattle at Teddingion ; the de- 
 fendant justified taking them damage-feasant at Kingston, and that he 
 carried them to Teddingtcn and impounded them there. It was objected 
 on demurrer that the justification was local, and therefore the defendant 
 ought to have traversed the place in the declaration : sed non allocatur, for 
 when the defendant says he carried them to Teddingion, and impounded 
 them there, they agree in the place-, for if the defendant had not a right 
 to take them, he was a trespasser at Teddingtcn (c). 
 
 The general issue, in trespass, is " not guilty." 
 
 In trespass quare clauiumf regit, the defendant may, upon " not guilty," 
 give in evidence that he had a lease for years, but not that he had a lease 
 at will, for that is like a licence which may be countermanded at plea- 
 sure), or that his servant put the cattle there without his assent; but he 
 cannot give in evidence a right of common, or to a way, or any other 
 easement; nor can the defendant give in evidence that die plaintiff ought 
 to repair his fences, for want whereof the cattle escaped; nor that he 
 entered to take his emblements or cattle ; nor that he entered in aid of 
 an officer for execution of process, or in fresh pursuit of a felon > or to 
 remove a nuisance, nor that it was the freehold of A. and. that he en- 
 tered by his comma -1 I or iij^nce ; for these are all matters of justifica- 
 tion only (d). 
 
 So, the defendant cannot give in evidence, that the goods were seised 
 as a heriot, or that they were distrained damage-feasant, csV. (e). 
 
 But he may give in evidence, or plead, that he was tenant in common 
 with the plaintiff: but if he would take advantage of a stranger being 
 so, he must plead it in abatement, for that will not prove him not 
 guilty. So if there be two defendants, they may plead a tenancy in 
 common in one of them, with the plaintiff (/), 
 
 («) Bull. N. P. 84. (/-) Ibid. 89. 00 Ibid. 90. (J) Ibid- (e) Ibii. 
 
 (/) Ibid. 34, 91.
 
 Sect. II.] irregular, or excessive Distress. 511 
 
 In case of an absolutely stinted common in point of number, one 
 commoner may distrain the supernumerary cattle of another : but not if 
 any admeasurement is necessary; as where the stint has relation to the 
 quantity of common land (a). 
 
 With respect to the plea of liberum tenementum, and to a new assign- 
 ment, if the defendant say that the locus in quo is six acres in D. which 
 are his freehold, and the plaintiff say they are his freehold, and in 
 truth the plaintiff and defendant have both six acres there, the de- 
 fendant cannot give in evidence, that he did the trespass in his own 
 soil, unless he give a name certain to the six acres, for otherwise (says 
 Dyer, 23. c. 147.) the plaintiff cannot make a new assignment (b). 
 
 It is certain, that where the action is transitory (as for taking the 
 plaintiff's goods', the defendant, if he would plead the locus in quo to 
 be his freehold, and that he took the goods damage-feisant, must ascer- 
 tain the place at his peril; because by his plea he has made that local 
 which was at large before ; for the taking of the goods is the gist of the 
 action, and therefore the plaintiff may prove it at a different place from 
 that laid in the declaration (r). 
 
 Indeed it should seem that antiently, upon a writ of quare clausum 
 /regit, the plaintiff might, and may still, declare either generally, for 
 breaking his close at A. or might name die close in his count, as for 
 breaking and entering his close called Blackaire in A, or might other- 
 wise certainly describe the same. If he declared generally, and the de- 
 fendant pleaded the general issue, the plaintiff might give evidence of a 
 trespass in any part of the township of A. So that, for the advantage 
 of the defendant, and to enforce the plaintiff to ascertain the place ex- 
 actly, a method was devised of permitting the defendant to plead what 
 is called " the common bar," that is, to name any place, as Broomfield 
 (true or false was immaterial) in A. as the place where the supposed 
 trespass happened, and then allege that such place so named was the 
 defendant's own freehold : and as the plaintiff could not prove a tres- 
 pass in Broomfield, this drove him to a new assignment of the locus in 
 quo, by naming the place in certain, as a close cailed Blachacre, to which 
 the defendant was now to plead afresh (d). 
 
 In trespass, the defendant justified in a place called A. as his free- 
 hold; the plaintiff, by way of new assignment said that the place in 
 which, is'c. is called B. It is no plea to say that A. and B. are the 
 same place, for by the new assignment the bar is at an end [e). 
 
 If the plaintiff make a new assignment, and the general issue be 
 joined thereon, the plaintiff cannot prove the defendant guilty at the 
 place mentioned in the bar : for when the plaintiff makes a new 
 
 (a) iBl.R. 673. (I) Bull. N. P. 92. (0 Ibid. Id) a El.R, 1089. 
 
 (<•) Bull. N. P. 92.
 
 ol2 Remedies for an unfounded, [Chap. XIX, 
 
 assignment he waives that whereto tlie defendant pleaded in bar ; so 
 as in truth ff it be the same place, he can never take advantage 
 thereof, and therefore if it be the same, yet the defendant ought not 
 to rejoin that it is so, but plead not guilty and take advantage of it at 
 the trial [a). 
 
 A man is not obliged to justify a distress for the cause which he 
 happens to assign at the time it was made. If he can shew that he 
 had a legal justification for what he did that is sufficient. A man may 
 distrain for one thing and avow for another : thus, he may distrain for 
 rent and avow for heriot service (Z>). 
 
 On a justification for taking cattle damage-feasant, if it appear 
 that the party distraining had not actually got into the locus in 
 quo before the cattle had got out of it, the justification cannot be 
 supported (c). 
 
 In trespass for taking and driving plaintiff's cattle, to which there 
 was a justification, that defendant was lawfully possessed of a certain 
 close, and that he took the cattle damage-feasant, plaintiff* may specially 
 reply title in another by whose command he entered, &c. and it does 
 not vitiate the replication that it is unnecessarily proved, and farther to 
 give colour to the defendant (<t"). 
 
 For as trespass is a possessory action, it is enough for the plaintifF 
 in his replication to traverse the title set out by the defendant, without 
 setting up a title in himself; for the possession admitted in the plea in 
 giving colour is sufficient unless the defendant can make out a title in 
 himself. — But if in trespass for taking a gelding (or other chattel), 
 the defendant pleads that the place where is one hundred acres, and 
 that J. S. is seised thereof in fee, and that he as his servant and by 
 his express orders took the gelding (or other chattel) damage feasant; 
 the plaintiff cannot reply de injuria sua propria absq. tali causa, for that 
 would put in issue three or four things ; but he must traverse one 
 thing in particular (<?). 
 
 If the defendant plead that it is his freehold, the plaintiff may ' 
 reply three ways: i. that it is bis freehold, and then he must always 
 traverse the defendant's plea, except in one case, and that is where 
 he makes a new assignment. 2. Or he may derive a title under the 
 defendant, and then he must not deny its being the defendant's 
 freehold. 3. He may set up a titie not inconsistent with the defend- 
 ant's, and then he may either traverse the defendant's title, or not, 
 as he pleases (f). 
 
 It is not necessary to have an interest in the soil, to maintain tres- 
 pass quare clausum /regit, but an interest in the profits is sufficient, as 
 he who has prima tonsura. So, if J. S. agree with the owner of 
 
 (a) Bull. N. P. 92. (£) 7 T. R. 657. 3 T. R. 646. (V) r Esp. N. P. 95. 
 
 (d) 1 Esp. R. % ii, ( f ) Bull. N. P. <?J< (/) Ibid. 94-
 
 Sect. II.] irregular, or excessive Distress. 5)3 
 
 the soil to plough and sow the ground, and for that to give him 
 half the crop, J. S. may have his action for treading down the corn, 
 as the owner is not jointly concerned in the growing corn, but is to 
 have half after it is reaped by way of rent, which may be of other 
 things than money: though in Co. Lit. 142. it is said it cannot be of 
 the profits themselves •, but that (as it seems) must be understood of 
 the natural profits (a). 
 
 The plaintiff may prove trespass at any time before the action 
 brought, though it be before or after the day laid in the declara- 
 tion. But in trespass with a continuando^ the plaintiff ought to 
 confine himself to the time in the declaration; yet he may waive 
 the continuandoy and prove a trespass on any day before the action 
 brought, or he may give in evidence only part of the time in the 
 continuando (b). 
 
 The plaintiff can only prove the taking such goods as are mentioned 
 in the declaration; because a recovery in the action could not be 
 pleaded in bar to any other action brought for taking other goods than 
 those specified in the declaration. Therefore, where the declaration 
 was for entering the plaintiff's house, and taking diversa bona et catalla 
 ipAits querentis ibidem invcnta, after verdict for the plaintiff the judgment 
 was arrested (c). 
 
 By stat. 21 J. 1. c. 16. the defendant may to trespass quare clausum 
 /regit, plead a disclaimer, and that the trespass was by negligence or 
 involuntary, and tender of sufficient amends before the action brought; 
 whereupon, or upon some of them the plaintiff shall be forced to join 
 issue: and if the said issue be found for the defendant, or the plaintiff* 
 shall be nonsuited, the plaintiff shall be clearly barred from the said 
 action, and all other suits concerning the same. 
 
 Though the verdict do not agree with the plea in the manner and 
 nature of the tenure, yet if it agrees in substance in the point for 
 which the distress was made, that is sufficient; for there is a difference 
 between trespass and replevin, for in replevin it behoves the avowant 
 to make a good title in omnibus (d). 
 
 Thus in trespass for breaking and entering the plaintiff's house and 
 taking his goods, the defendant pleaded, that the house is parcel of a 
 half yard holJen of A. by homage, fealty, escuage, uncertain suit o£ 
 Court, enclosing his park with pales, and rent of a pound of comyn, 
 and for three years' arrear, and for homage and fealty of the tenant, 
 he by A.'s command entered and took, &c. the defendant traversed the 
 tenure modo et formd. Special verdict that he held of A. by homage, 
 fealty, enclosing his park; rent of a pound of cornyn, et non aliier, and 
 judgment for the defendant (<?). 
 
 (a) Bull. N. P. 85. (J) Ikid. 86. («■) Ibid. 84. (J) Ibid. jS. (') Ibid. <5* 
 
 LI
 
 514 Remedies for an unfounded, [Chap. XIX. 
 
 In trespass for taking the plaintiff's cattle, justification that they 
 were damage feasant in the defendant's close is sufficient without setting 
 forth a title (a). 
 
 If trespass for taking and selling the plaintiff's goods be brought 
 against two persons, and the one suffers judgment to go by default, 
 and the other justifies the taking on a distress for rent, by command of 
 his co-defendant, and the selling by the licence of the plaintiff, and 
 issue be taken on the licence and found for the defendant, the judg- 
 ment suffered by default shall be arrested ; for the case of a licence 
 cannot be distinguished from a gift of goods, or a release, which 
 destroys the cause of action as to all the defendants (b). 
 
 Trover for an irregular Distress. 
 
 Trover also lies for a distress illegally taken; as where a right to 
 distrain exists, but the distrainer (where the distress is for rent) takes 
 such goods as are not lawfully the subjects of a distress; as wearing 
 apparel in use, &c. 
 
 For where cattle or goods are wrongfully taken and detained, the 
 party may bring trespass vi et armis, replevin, trover, or detinue ; or 
 if they are converted into money, he may waive the tort, and bring 
 assumpsit for money had and received: but the plaintiff having once 
 made his election, cannot afterwards bring another action for the 
 same cause, either whilst the former is depending, or after it has been 
 determined (c). 
 
 If therefore a party pay money in order to redeem his goods 
 from a wrongful distress for rent (or any other supposed ground 
 of distress, it is presumed,) he may maintain trover against the wrong- 
 doer (d). 
 
 In order to maintain trover the plaintiff must have a right of pro- 
 perty in the thing, and a right of possession ; and unless both these 
 things concur, the action will not lie. — Therefore where goods 
 leased, as furniture with a house, have been wrongfully taken in exe- 
 cution by the sheriff, the landlord cannot maintain trover against the 
 sheriff (e ). 
 
 For trover is a special action on the case, which one man may have 
 against another, who hath in his possession any of his goods by delivery, 
 finding, or otherwise, or sells or makes use of them without his consent, 
 or refuses to deliver them on demand ; and it is for recovery of damages 
 to the value of the goods; and therefore a declaration ought to cor.Lahi 
 
 (a) id Mod. 37. (£) 8 Mod. 217. a I.d. Raym. 1372. s. c. 1 Str. 6zo. 
 
 (0 x Tidd's Pract. 10. (J) 6 T. R. 29S. (/; 7 T. R. ?.
 
 Sect. II. J irregular, or excessive Distress. 5\5 
 
 convenient certainty in the description of the things, so that the jury 
 may know what is meant thereby (a). 
 
 The conversion is the gist of the action, and the manner in which 
 the goods came to the hands of the defendant is only inducement'; 
 and therefore the plaintiff may declare upon a devemrunt ad manus 
 generally, or specially per inventionem, (though the defendant came to 
 the goods by delivery,) for being but inducement, such need not be 
 proved •, but it is sufficient to prove property in himself, possession to 
 have been in the defendant, and a conversion by him. So, the de- 
 claration was holden to be good, though the conversion was laid to be 
 on a day before the trover, for the postea convertit is sufficient, and the 
 viz,, void (/>). 
 
 The distinction between the actions of trespass and trover is well 
 settled ; the former is founded on possession, the latter on property : a 
 special property is sufficient in order to enable the party to bring trover; 
 and even property is sufficient without possession (c). 
 
 To support an action of trover, there must be a positive tortious 
 act (</). 
 
 Trover being founded on a tort, " not guilty" is the general issue. 
 A release also may be pleaded specially, and it seems is the only special 
 plea in this action. But as the defendant cannot plead the special 
 matter, he may give it in evidence on the general issue (e). 
 
 Where the goods are cumbrous, instead of allowing them to be 
 brought into Court, the Court will grant a rule to shew cause, why on 
 the delivery of the goods to the plaintiff and paying costs, proceedings 
 should not be staid (/"). 
 
 Trespass for an irregular Distress. 
 
 Trespass will also lie for any irregularity in making the distress or in 
 the subsequent disposition of it, or conduct respecting it. 
 
 Therefore, trespass lies against a landlord, who, on making a distress 
 for rent, turned plaintiff's family out of possession, and kept the 
 premises on which he had impounded the distress (g). 
 
 But respecting a distress for rent, by stat. 11. G i. c. 19. a dis- 
 tress for rent shall not be deemed unlawful for any irregularity in the dis- 
 position of it afterward, nor the party making it a trespasser ah initio; 
 but the party aggrieved may recover full satisfaction for the special 
 damage he shall have sust ; ned thereby, and no more, in an action 
 of trespass or on the case, uniess tender of amends have been before 
 made. s. 19. 
 
 (,) Bull. N. P. 32. (*) Ibid. 33- (0 4 T. R. 4S9. Bull. N. P. 33^ 
 
 00 % Bos. & Pul. 439- W E ull > *"■ p - & W) Ibid - 4y C?) l East - R - J i9' 
 
 LU
 
 Sl6 Remedies for an unfounded, <$c. [Chap. XIX. 
 
 Trover therefore will not lie in such case (a). 
 
 Trespass will not lie on an irregular distress, when the irregularity 
 complained of is not in itself an action of trespass, but consists merely 
 in the omission of some of the forms required in conducting the dis- 
 tress, such as procuring goods to be appraised before they are sold •, the 
 true construction of the provision, in 11 G. 2. c. 19. j. 19. that the 
 party may recover a compensation for the special damage he sustains by 
 an irregular distress in an action of trespass, or on the case, is that he 
 must bring trespass if the irregularity be in. the nature of an act of tres- 
 pass; and case if it be in itself the subject-matter of an action on the 
 case (b). 
 
 Action on the Case for an excessive Distress. 
 
 As to an excess of a distress taken, an action on the case lies for that 
 on the statute of Marlbridge, 52 H. c. I. but that will not warrant an 
 action of trespass (c). 
 
 Thus in trespass for breaking and entering his house, and taking an 
 excessive distress, after judgment by default, it was holden, on error 
 brought, that trespass would not lie, for the entry was lawful, and 
 there is nothing subsequent to make it a trespass, as there is when the 
 distress is abused. At common law, the party might take a distress of 
 more value than the rent, therefore that did not make him a trespasser 
 ah initio, but the remedy ought to be by a special action founded upon the 
 statute of Marlbridge (d). 
 
 - (a) 1 H. BLR. 13. (b) z Campb. iij. (0 7 T. R. 658. (J) Bull. N. P. [81.]
 
 C 517 ] 
 
 CHAPTER XX. 
 
 Of the Remedies for Tenants against Landlords 
 
 (continued.) 
 
 Of the Tenant" s Remedies by Action of Covenant of- 
 Assumpsit, according as the Lease is by Deed or 
 without Deed. 
 
 IF the landlord commit a breach of covenant, if the lease be by 
 deed, or violate his contract if the lease be by writing without 
 deed, or by parol agreement, the tenant may in the one case sue him 
 for damages in an action of covenant, and in the other in that of 
 assumpsit. 
 
 A breach of covenant need not be assigned in express words : it is 
 sufficient if it be a direct affirmative, and certain to a general intent («)• 
 
 Therefore, on a covenant* that the defendant had a right to let for 
 the term, a breach assigned generally that he had not a right to let is 
 good; for the covenant being general, the breach maybe assigned as 
 general as the covenant, and it lies not in the plaintiff's notice who 
 had the rightful estate ; but the defendant ought to have maintained, 
 that he was seised in fee, and had a good estate to demise, and then 
 the plaintiff ought to have shewn a special title in some other; but 
 prima facie the count is good, the covenant being general, to assign a 
 general breach (b). 
 
 So in assigning a breach of covenant that was for quiet enjoyment, 
 it was held to be sufficient that at that time of the demise to the plain- 
 tiff, A. had lawful right and title to the premises, and having such 
 lawful right and title entered, l^c. and evicted him, iffc, without 
 shewing what title A. had; or that he evicted the plaintiff by legal 
 process, l5c. Alledging that " the party having a lawful right and 
 title, entered," is equivalent to saying " he entered by lawful right 
 and title (<•)." 
 
 (a) Cro. Jac. 383. 4 T. R. 6ai. (l>) Cro. Jac. 304. cont. semb. I Mod. 66, 
 
 (c) Cro. Iliz. 313. j Mod. ici, 4 T. R. fax. 8 T. R, 278.
 
 5 ! 3 Of the Tenant's Remedies, [Chap. XX. 
 
 So also, if a covenant be against the act of any particular person, 
 interruption assigned as a breach is good, without shewing by what 
 title (a). 
 
 So, if a lessor covenant for quiet enjoyment against the lawful let, 
 suit, entry, cinV, of himself, his heirs, and assigns, the declaration for 
 a breach of the covenant need not expressly allege that he entered 
 claiming title, if the disturbance complained of is such as clearly ap- 
 pears to be an assertion of rigiit [b . 
 
 On a covenant that a. and his wife shall enjoy, &'c. a breach -hat 
 A, was ousted is sufficient (<-). 
 
 However, to establish a bmch of covenant for quiet err lent 
 without incumbrance from any person, the plaintiff must shew a law- 
 fu incumbrance (d). 
 
 A condition that the lessee shall not molest, vex, c5*r. any copy- 
 holder, is not broken by any entry on the premises vi cc armis to beat 
 him, if he do not oust him from his copyhold (<?). 
 
 A covenant in a lease, that the lessee should quietly enjoy the estate 
 discharged from tithes, is broken by a suit for them after the expiration 
 of the term {/). 
 
 But where in covenant for quiet enjoyment the breach assigned was, 
 <c that the defendant had exhibited a bill in Chancer, againot him for 
 ploughing meadow, and obtained an injunctio i, which had been 
 dissolved with 20s, costs; on demurrer, this was held to be no breach 
 of covenant, for the covenant was for quiet enjoyment, and this was a 
 suit for waste (g). 
 
 The seller covenants to the purchaser of an estate that he shall erjoy 
 and receive the rents, &c. without any action, or. or interruption by 
 the seller or those claiming from him, or " by, through, or with his, 
 or their acts;" this means default. Therefore, a breach was holden to 
 be well assigned in respect of certain quit-rents in arrcar before and at 
 the time of the conveyance, though not stated to have accrued while 
 the seller was tenant of the premises h ). 
 
 But to covenant for enjoyment free from arrears, plea that the de- 
 fendant delivered money to the plaintiff, with intention for him to pay 
 it over to the lessor, is good (i). 
 
 A covenant to surrender a copyhold to a purchaser, and to make and 
 do all acts, deeds, &c. for the perfect surrender and assurance of the 
 premises at the costs and charges of the seller, is not broken by the 
 non-payment of the fine to the lord on the admission of the purchaser; 
 for the title is perfected by the admittance of the tenant, and the fine 
 is not due til; after the admittance (X'). 
 
 (-0 Cro. Eliz. 213. (b) 1 T. R. 671. (0 Cro. Jac. 383. 00 Ibid. 425. 
 
 (<•) [bid. 421. Cro. Eliz. 914. 916. (/) Ibid. 316. (g) 2 Vent. 215. 
 
 (/;) 3 East's R. 491. (/) 4 Mod. 249. (i) I East's R. 632. % T. R. 484, 
 
 8
 
 Chap. XX.] by Action of Covenant or Assumpsit. 519 
 
 In an action against executors in their own right on a covenant for 
 " good title and quiet enjoyment against any person or persons what- 
 soever," contained in an assignment of a lease of the testator by way 
 of mortgage, the declaration must shew a breach by some act of the 
 covenantors (a\ 
 
 Covenant by a lessee against his lessor, and breach assigned on the; 
 covenant for quiet enjoyment, for that the lessor ousted him: the de- 
 fendant pleaded that he entered to distrain for rent, and traversed that 
 he ousted him de pramissis; the plaintiff demurred, for that he did not 
 traverse that he ousted him de pramissis or any part thereof. Sed per 
 Curiam) the plea is good, and proof of any part, had the plaintiff 
 joined issue, would have been sufficient (b). 
 
 Where a covenant is founded on a conveyance of an estate which 
 proves to be void, the covenant is void also. 
 
 Thus, where the conveyance was " a grant of so much of a term as 
 should be unexpired at the death of A." and covenant for quiet enjoy- 
 ment, and bond for performance of covenants: this conveyance being 
 void, on account of the uncertainty of the time when the term was to 
 commence and end [Co. Lit. 456.] the covenants were adjudged to be 
 void as they depended on the estate (c). 
 
 But though a lease be void, covenant lies in certain cases for a breach 
 ef covenant before the lease became void. 
 
 Thus, upon the stat. 13 Eliz. c. 20. (since repealed) of leases made 
 by parsons, that upon non-residency for eighty days the lease shall be 
 void, yet it was adjudged, that where a parson made such a lease by 
 indenture, in which were divers covenants on the lessee's part, and 
 after the lease, &c. became void by non-residency, £fr. for a covenant 
 broken before, an action of covenant lay (d). 
 
 (a) i H. Bl. R. 84. (1) 1 Salk. 26a. Bull. N. P. 301. 
 
 U) Sir T. Raym. 27. 3 T. R. 438. (</) Cro. Eliz. 78.
 
 C -520 ] 
 
 CHAPTER XXL 
 
 Of the Remedies f of Tenants against third Persons. 
 
 Section I. Of Distress for Damage Feasant and Res- 
 cons. 
 
 Section II. Of Trespass for immediate Injuries to his 
 Possession ; and Case for consequen- 
 tial ones, 
 
 Section I. Of Distress for Damage Feasant ,' and 
 
 Rescous. 
 
 TF the inclosures, life, of the tenant be broken down, or his land 
 **- injured by the cattle, £sV. of another person, he may either bring 
 an action of trespass for the damage done, or he mav take the cattle, 
 &fc. as a distress feasant ; for the party has his election of the two re- 
 medies ; but using one of them is an utter waiver of the other, as the 
 election of one cannot but be considered to be an implied rejection of 
 the other; beside that nemo debet bis vexari pro eadem causa : a distress, 
 therefore, taken damage feasant, as long as it is detained, is a good bar 
 to trespass (a). 
 
 If a beast has done more damage than he is worth, let the injured 
 party not distrain, but rather take his action (£). 
 
 This ground of distress is upon the principle of the law of recom- 
 pence, which justifies the party in retaining that which occasions an in- 
 jury to his property, till amends be made by the owner. 
 
 Damage feasant, however, is the strictest distress that is ; for the 
 thing distrained must be taken in the very act, for if they are once off, 
 though on fresh pursuit, you cannot distrain them ; this diversity ex- 
 istirg between distress for rent and damage feasant, that one may dis- 
 train any cattle he finds on the premises for rent, but in the other case 
 
 (a) la Mod. 663. • (J) Ibid. 66x.
 
 Sect. I.] Of Distress for t)amagc Feasant, fyc. 521 
 
 they must be actually doing damage, and are only distrainable for the da- 
 mage they are then doing and continuing; for if they have done da- 
 mage to-day and gone ofF, and come again at another time and are do- 
 ing damage, and are taken for that,, and .the. owner ten ier amends 
 for that damage, the party cannot justify keeping them for the first 
 damage (a). 
 
 Moreover, if ten head of cattle are doing damage, one cannot take 
 one of them and keep it for the whole damage, but may bring tre'spass 
 for the rest [P. 
 
 For damage feasant one may distrain in the night, otherwise it may 
 be the beasts will be gone before he can take them ; in which respect, 
 this distress differs from that for rent, or rent-service, which must be' 
 in the day-time (<r). 
 
 If the distress be stolen or set at large by n stranger, the distrainer 
 shall not be answerable for it ; but if in that case replevin be brought 
 and .an elongatur returned, as there must be, there shall be a withernam, 
 and the distrainer is Hable till he shew the matter, which, bcinp- no de- 
 fault of his, will excuse him (d). 
 
 If tender be made of damages before the taking, the taking is un- 
 lawful ; if after the taking and before impounding, then the detainer 
 after is unlawful ; but tender comes too late after the impounding-' to 
 make either the taking or detaining unlawful : still, however, after the 
 impounding, the distrainer may take the amends and let go the distress 
 if he please. 
 
 If a distress damage feasant escape, or die, without any iieglect of 
 the distrainer, he may have an action of trespass against the owner. r • 
 
 In trespass quare clausum f regit, the defendant pleaded, that the plain- 
 tiff distrained his hog damage feasant for the same trespass ; the plain- 
 tiff replied, that the hog escaped without his consent, and that he wos 
 not satisfied for the damage : on demurrer, it was holden, that the ac- 
 tion would not lie, though it was admitted that if the distress had died, 
 the action would revive ; but the escape (unless the contrary be shewn) 
 was the fault of the plaintiff (e). 
 
 Of Rescous. 
 
 Rescous is where the owner or other person takes away by force a 
 thing distrained from the person distraining •, but the person must be 
 actually in possession of the thing, or else it is no rescous ; as if a man 
 come to make a distress, and he be disturbed to do it : but the party 
 may bring an action on the case for this disturbance (/). 
 
 (a) 12 Mod. 66r. (J) Ibid. (c) Co. Lit. 14*. (J) I Med. 660. 
 
 («) Bull. N. P. 84. (/) Ito<L -v
 
 522 Of 'Trespass j or immediate Injuries [Chap. XXI. 
 
 The plaintiff ought to count for what rent or services he took the 
 distress, and the defendant miy traverse the tenure {a). 
 
 If a man send his servant to distrain for rent, £sV. and rescous be 
 made, the master shall have the writ, and he may \ An in the writ for 
 assault and battery of the servant ; for both are torts. The joinder of 
 action depends on the form of the action : for wherever the same plea 
 may be pleaded, and the same judgment given on two counts, they may 
 be joined in the same declaration (b). 
 
 If the defendant plead " not guilty," which is the general issue, he 
 cannot give in evidence non-tenure of the plaintiff who distrained for 
 rent, but he ought to plead it (c). 
 
 But this action is rarely brought at this day, but a special action on 
 the case in which non- tenure may be given in evidence on the general 
 issue (d). 
 
 Vide ante touching stat. iW.& M. c. 5. s. 4. &c. 
 
 In an action on the case for the rescue of a distress intended for sale, 
 the plaintiff need not state that he gave notice of the distress ; nor, if 
 the rent became due upon a lease for years, need he aver occupation : 
 for upon a lease for years the rent is payable though the lessee never 
 occupies ; contra of a lease at will. Nor, though the rent was payable 
 only during occupation, need he shew any thing more than the lessee's 
 entry (e). 
 
 The venue may come from the will where the rescue was, with- 
 out joining either the will where the demise was made, or the distress 
 taken (/). 
 
 Section II. Of Trespass for immediate Injuries to the 
 Tenant's Possession. 
 
 Where the immediate act itself occasions a prejudice, or is an injury 
 to the house, land, &c. of another, trespass vi et armis will lie (g). 
 
 This is a possessory action ; therefore, whoever is in possession 
 may maintain an action of trespass against a wrong-doer to his pos- 
 session {h). 
 
 Therefore, where a party being entitled under a lease from the Crown 
 to the sole right of digging lead in a certain district, to the soil of which 
 she had no right, let to the plaintiff all her right so to dig during her 
 term: upon his bringing trespass on the ca6e against the defendant for 
 
 («) Bull. N. P. 84. {t) Ibid. 1 T. R. zft. («) Bull. N.P.62. 
 
 (rf) Ibid. (0 1 Ld. Raym. 170. (/) Ibid. (^ Ibid. 79. 
 
 {h) Cro. Jac. 133. 3 Bur. R. IJ63.
 
 Sect. II.] to the Tenant's Possession. £23 
 
 taking the lead, it was held that, being in possession, he should have 
 brought trespass vl et arm't: ; wherefore he was nonsuited (a). 
 
 So, trespass vi et armis lies for one who has the profits of the soil, 
 though not the soil itself ; as herbagium % pastura, &c. (b). 
 
 It lies against a wrong-doer, even though the tenant's possession be 
 void. 
 
 Therefore, one in possession of glebe land under a lease void by star; 
 1 3 Eliz. c. 20. by reason of the rector's non residence, may yet main- 
 tain trespass upon his possession against a wrong-doer (c). 
 
 Note. Where there is a demise of premises, and an entire rent re- 
 served, if any part of the premises could not be legally demised, the 
 whole demise is void (d) 
 
 As trespass is a possessory action, and possession is sufficient to 
 maintain it against a stranger, no special title need be made (<?). 
 
 In trespass, the plaintiff need only falsify the defendant's title ; for 
 the defendant's title being out of the case, it then stands upon the plain- 
 tiff's possession, which is enough against a wrong-doer; and the plain- 
 tiff need not reply a title (f). 
 
 Trespass was brought for breaking and entering the plaintiff's house, 
 and beating, abusing, and ill-treating him : plea not guilty. The de- 
 fence was, that the plaintiff being a pauper had many years before been 
 placed by the parish officers of that time in the house, where the de- 
 fendants, seven in number, committed the trespass, and that the de- 
 fendants as parish officers, came to the house to remove the plaintiff 
 and his family to another house, that the plaintiff refused to quit and 
 fastened his house against them, and that they in consequence broke 
 open the house and by violence dispossessed the plaintiff and his family. 
 Plumer for the plaintiff objected, that under the plea of " not guilty," 
 the defendants were not at liberty to enter into evidence of this kind by 
 way of justification. But Le Blanc, J. was clearly of opinion that the 
 defendants might, under not guilty, give evidence of liberutn tenemen- 
 turn, and that if the plaintiff had been put into the house by the parish, 
 he could by no length of possession whatever acquire any title, but 
 might at any time be turned out of possession by the parish officers ; 
 and if he resisted, force might lawfully be used to dispossess him ; that 
 the evidence offered, therefore, amounted to liberum tenementum, and 
 that it would be a question for the jury to decide, whether any unneces- 
 sary violence had been used in accomplishing a legal object, and to what 
 damages, if any, the plaintiff was entitled. It being proved that great 
 and unnecessary violence had been used, the jury, on that ground only, 
 
 (a) Cro. Jac. 123. 3 Bur. R. 1563. 1 Ld. Raym. 188. (6) 3 Bur. R.1827. 
 
 (-) 1 East's R. 212. (d) 3 Esp. R. 71. (e) Cro. Jac. 125, 
 
 (/) aStr. 1238.
 
 524 Of Trespass for immediate Injuries [Chap. XIX. 
 
 found a verdict for the' plaintiff for 401. Dauncey and Benyon for the de- 
 fendants \a). ' 
 
 ■ At the assizes at ' Hereford on this circuit, the same question came 
 before Lawrence "J. in Wcrthington v. Bdister, and received a similar 
 determination.' This was an action of trespass for breaking; and enter- 
 ing the plaintiff's house, and disquieting him in the possession thereof, 
 CjjV. Oil" the evidence it appeared, that the house, more than twenty 
 years ago, had been built on a piece of waste ground at the expence of 
 the parish for the plaintiff; that the plaintiff had ever since occupied it 
 with his family, paying no rent to the parish or making any other acknow- 
 ledgment ; that lately the parish officers had made claim to the pre- 
 mises and put another family into the house to occupy it jointly with 
 the plaintiff, in doing which they had committed what the plaintiff de- 
 clared on as a trespass. Lawrence J. very early in the cause, delivered 
 it as his clear opinion, that if the house was originally built by the 
 parish, and the plaintiff put into it by them, no length of time would 
 turn his possession into a title against the parish ; that he could only be 
 considered as a mere tenant at will, and that of course his right of 
 possession ceased with the determination of that will. — Upon this opi- 
 nion of the Judge's being given, the point contended between the coun- 
 sel on both sides was, at whose expence the house was originally built, 
 and on its being proved that the house was erected at the costs of the 
 parish the plaintiff was immediately nonsuited. Dauncey for the plaintiff, 
 Williams, Serjeant, for the defendant. 
 
 A lease was made of a farm, and also of certain allotments of com- 
 mon, enclosed under an Act that contained the usual clause empower- 
 ing the commissioners to distrain or enter, and take the rents and profits 
 in failure of the owner of the land to whom the allotments were par- 
 celled out, paying his proportion of the expences of the Act ; and the 
 question was, who should defray such expence, and the expence of fenc- 
 ing such allotments ? It was ruled that such expences were to be borne 
 by the landlord, Lord Elletiborough, C J. observing, that « The Act 
 gives the commissioners power to oust the tenant from his occupa- 
 tion ; and when a power is to oust the tenant of the rents and profits, 
 there the tenant may pay in his own discharge, and for the redemption 
 of the land (£)." 
 
 Trespass lies against a person for disturbing the plaintiff in the pro- 
 fits of a fair by erecting a toll-booth, without saying quare clauium, frc- 
 
 The stat. \6lf 17 Car, 2. says, that if in an action of trespass the 
 plaintiff happen to omit the words vi et ctrmis, or contra pacetn, the want 
 ©f those words shall not vitiate the declaration. 
 
 (a) Fox v. Oakley and others. Oxf. Sum. Ass. 1802, at Shrews. T's. MSS. 
 {i) Smith -u. Pcarce, Sitt. at Guildhall after M. T. 43 G. 3. (c) Ibid.
 
 Sect. II.] ' to the Tenant's. Bossession. 5%5 
 
 ]f there is lessee for life or years of lands, the lessee has no property 
 in the trees growing on the land, and even if the clause in the Lease is 
 " without impeachment of waste," it gives no property, but is merely 
 an exemption from an action. Yet if a stranger cuts down any trees, 
 the lessee may maintain trespass, but he shall not recover damages for 
 the value of the trees, because the property of them is in him in rever- 
 sion ; but the damages shall be for cropping and breaking his close, and 
 perhaps for the loss of shade, fcfc. [a). 
 
 This action also lies for not repairing fences, whereby cattle come in- 
 to ground of the tenant and do damage [b). 
 
 Every man's ground is, in the eye of the law, fenced; and where a 
 hedge and ditch join together, in whose ground or side the hedge is,. tQ 
 the owner of that land belongs the keeping of the same hedge or. fence, 
 and the ditch adjoining to it on the other, side, in repair and scour- 
 ed (r). 
 
 Where entry, authority, or licence, is given to any one by the law 
 and he abuses it, he will be a trespasser ab initio ^ but where it is given 
 by the party, he may be punished for the abuse, but he will not be .a 
 trespasser ab initio (d). 
 
 Where the plaintiff is in the actual occupation of the land, though 
 he had no legal title whatever, the defendant cannot give ".evidence of 
 property in a stranger under the general issue ; but where land is not 
 in the actual possession on any person, as commons and the. like, the de* 
 fendant, on such issue, may prove the legal possession,, to be in. a third 
 person (ej. . . 
 
 It will be a trespass, if a man wrongfully enters the house, lands r or 
 tenements of another without his consent ; and therefore trespass lies 
 de dome suo fractd. So, for entering his messuage or tenement. Or 
 breaking his close. Or treading down, spoiling, eating, &c. his hay. 
 or corn. Or cutting down trees. Or hunting in his close. Or break- 
 ing hedges and ditches. Or throwing down or disturbing the setting of 
 his fold. Or breaking up his pond. So if a man enters and does da- 
 mage to another, though he does not keep the possession ; as trespass 
 lies quare domtwi vel clausum f regit (f). 
 
 The lessee for years, after his lease is expired, may have action for a 
 trespass on the land before his lease was ended (g). 
 
 Where one declared in case for obstructing a water course upon his 
 « possession" of a mill "with the appurtenances" and that « by rea- 
 son of such his possession he had a right to the use of water running 
 in a certain tunnel to the mill," such allegation was net supported by 
 proof that the tunnel was made on the defendant's land, which he had 
 
 (a) Esp. N. P. 384. 4 Co. 6j. a. (1) 1 Salk. 33J. ' ! (<:) 10 Mod. 146. - 
 
 Par. Oss. 188. . (J) Bull. N.P.81. (*) Pcake's R. 67. ( (/) F>N. B. 87, Bj &c. 
 
 Com. Dig. tit, « Trespass," (A, %.) (J) fir'o. IVs'sg. 4V6; ' " * ' ',', ^
 
 52,6 Of Trespass for immediate Injuries [Chap. XXI. 
 
 agreed to let the defendant have for this purpose for a certain considera- 
 tion, but of which no conveyance was made by him to the plaintiff, 
 and he had since refused assent : because the plaintiff had not the wa- 
 ter by reason of his " possession" to the mill, &c. but by parol li- 
 cence or contract, which could not pass the title to the land, and as a li- 
 cence was revokable, and revoked (a). 
 
 Where there is a tenant in possession, and an execution (as by f. fa.) 
 is against the landlord, whose term is to be sold, the tenant cannot, it 
 should seem, be turned out of possession (£). 
 
 But it is very different where the debtor himself is in possession; in 
 such case, Bid/er, J. inclined to think that the sheriff might turn him 
 out of possession [c). 
 
 The action of trespass is local (d). 
 
 The plaintiff may prove trespass at any time before the action brought, 
 though it be before or after the day laid in the declaration. But in tres- 
 pass with a contimiando, the plaintiff ought to confine himself to the 
 time in the declaration : yet he may waive the continuandoy and prove 
 the trespass on any day before the action brought, or he may give in evi- 
 dence only part of the time in the contimiando — Note. That of acts which 
 terminate in themselves, and once done cannot be done again, there 
 can be no contimiando ; as hunting or killing a hare, or five hares, but 
 that ought to be alleged, that diversis diebus ac vicibus between such a day 
 and such a day, he killed five hares, and cut and carried away twenty 
 trees. Where trespass is laid in continuance that cannot be continued, 
 exception ought to be taken at the trial, for he ought to recover but for 
 one trespass \ but hunting may be continued, as well as spoiling and 
 consuming grass (e). 
 
 Whether the trespass may be laid with a continuando or not, depends 
 much upon the consideration of good sense ; as where trespass is brought 
 for breaking a house or hedge, it may well be laid with a contimiando, 
 for pulling away every brick or stick is a breach : but if the declaration 
 be that the defendant threw down twenty perches of hedge continuando 
 transgressionem pradictam from such a day to such a day, this must be in- 
 tended of a prosternation done at the first day, and therefore will be ill 
 upon demurrer or judgment by default ; but it will be aided by verdict, 
 because the Court will intend that the jury gave no damage for the con~ 
 tinuando (f)- 
 
 So, trespass Cannot be laid of loose chattels with a contimiando, and if 
 it be so laid no evidence can be given but of the taking at one day ; and 
 therefore in trespass for mesne process it ought to be laid diversis diebus 
 ac vicibus. Where several trespasses are laid in one declaration, ccnti- 
 
 {a) 4 East's R. 107. (J) 3T.R. 298. (c) Ibid. (d) II Mod. 181. 
 
 («) 4 T.R, 503. Bull. N. P. 86. (/) Ibid.
 
 Sect. II.] to the Tenant's Possession. 5 L 17 
 
 nuando transgressiones pradictas, and some of them may be laid with a 
 contmuando and some not, after verdict the conttnuando shall he extended 
 only to the trespasser, which may be laid with a ccntiraando So, .vhere 
 the cotttlnuando is impossible, the Court will intend that no damages were 
 given for :t {a;.. 
 
 Though persons having only a right are not to assert that right by 
 force, and if any violence ne used it becomes the subject of a criminal 
 prosecution, yet a person having a right of possession may peaceably as- 
 sert it, if he do not -ransgrcss the laws of his country; for a person 
 who has a right of entry may enter peaceably, and being in 
 possession may retain it and plead that it is his soil and freehold (b). 
 The common plea of liberttra tenementum proves this (<:). 
 
 It is impossible to suggest the possession of a certain term that is 
 not the subject-matter of a seizure by the sheriff under a fieri facias (d) ; 
 and as in a deed of assignment the sheriff need not specify the parti- 
 cular interest which the party had, so, if he can convey a title in 
 general words, it is equally sufficient to justify in the same general 
 words in an action of trespass (e). 
 
 It is a general rule in pleading that the party justifying must shew 
 and admit the fact if). 
 
 A special justification must be of matter of fact, and not of record; 
 for matter of record must be pleaded even by an officer (g). 
 
 Regularly, indeed, by the common law, matter of excuse or justi- 
 fication must be pleaded specially ; as in trespass to real property, a 
 licence ; or that the beasts came through the plaintiff's hedge, which 
 he ought to have repaired ; or by reason of a rent-charge, common or 
 the like (h). 
 
 A justification in trespass must, it is said, answer the whole trespass 
 as laid in the declaration. 
 
 Thus, in trespass for breaking and entering plaintiff's house and 
 expelling him, the plea justified the breaking and entering, shewing a 
 good cause for it, and it was held to be a full answer to the count ; 
 for the breaking and entering are the gist of the action, and the ex- 
 pulsion is only matter of aggravation (J). If the plaintiff had wished 
 to take advantage of the expulsion, he should have shewn the special 
 matter in a new assignment, for according to the six carpenters' 
 case, he should shew in reply that such makes the party a trespasser 
 ub initio (k). 
 
 Therefore, where trespass was for going over the plaintiff's close 
 with horses, cows, and sheep, and the defendant justified that he had 
 a way for horses, cows, and sheep, and said, that such a day he went 
 
 (a) 4 T. R. 503. Bull. N. P. 86. (*) 3 T. R. 295. (') 7 T. R. 431. 
 (<0 3 T. R. 295. (e) Ibid. 298 (/) Ibid. (g) 6 Med. 40. 
 
 [b) Tidd's Pract. 597. (0 3 T. R. 297. (i) 8 T. R. 246.
 
 528 Of Trespass for immediate Injuries. [Chap. XXI. 
 
 over with liorr.es; upon demurrer it was adjudged ill, for it was z 
 justification for horses only [a). 
 
 In trespass, the value of the damages must be stated and proved {b). 
 Judgment recovered against another for the same injury is a good 
 plea in bar to this action (<r). 
 
 Of the judgment arid damages. — In actions of tort, as trespass, £ffV, 
 where the wrong is joint and several, the distinction seems to be this \ 
 that where the plea of one of the defendants is such as shews that the 
 plaintiff could have no cause of action against any of them, there if 
 this plea be found against the plaintiff, ic shall operate to the benefit 
 of all the defendants, and the plaintiff cannot have judgment or 
 damages against those who let judgment go by default; but where the 
 plea merely operates in discharge of the party pleading it, that it shall 
 not operate to the benefit of the other defendants, but notwithstanding 
 such plea be found against the plaintiff, he shall have judgment and 
 damages against the other defendants (a). 
 
 If there be a demurrer to part and an issue upon the other part, 
 or, in an action against several defendants, if some of them demur 
 and others plead to issue, the jury who try the issue shall assess the 
 damages for the whole, or against all the defendants. In this case, if 
 the issue be tried before the demurrer is argued, the damages are said 
 to be contingent, depending upon the event of the demurrer. But 
 where the issue, as well as the demurrer, goes to the whole cause of 
 action, the damages shall be assessed upon the issue, and not upon 
 the demurrer (e). 
 
 "Where there are several defendants who sever in pleading, the jury 
 who try the first issue shall assess damages against all, with a Cesset 
 executh; and the other defendants, if found guilty, shall be contribu- 
 tory to those damages. In trespass against several defendants who 
 join in pleading, if the jury on the trial find them all jointly guilty, 
 they cannot assess several damages. But they may find some of them 
 guilty and acquit others; in which case the damages can be assessed 
 against those only who are found guilty: or they may find some of the 
 defendants guilty of the whole trespass, and others of part only: or 
 some of them guilty of part, or at one time, and the rest guilty of the 
 other part, or at another time; in either of which cases, they may 
 assess several damages if). 
 
 Also, where in an action against several defendants the jury by mis- 
 take have assessed several damages, the plaintiff may cure it, by enter- 
 ing a nolle prosequi as to one of the defendants and taking judgment 
 against the others; or he may enter a remittitur as to the lesser damages; 
 
 (a) ii Mod. 219. (!,) 6 Mod. ijj. 00 Cro. Elir. 30. (</) * Tidd'* Pratt. *y. 
 
 (r) Ibid. (j) Ibid. 805. 
 
 5
 
 Sect. I I.j , to the Tenant's Possession. 59,9 
 
 or, even without entering a remittitur) he may take judgment against 
 "all the defendants For the greater damages (a). 
 
 Where the jury upon the trial of an issue have omitted to assess the 
 damages, the omission may in certain ca^es be supplied by writ of 
 inquiry. Where they give greater damages than the plaintiff has 
 declared for, it may be cured by entering a remittitur of the surplus 
 before judgment (£). 
 
 Of the Costs.— As to costs, the stat. 22. 23 Car 2. c 9. enacts, 
 That in all actions of trespass, wherein the Judge, at the trial of the 
 causes shall not find and certify, under his hand, upon the back of 
 the record, that the freehold or title of the land mentioned in the plain- 
 tiff's declaration was chiefly in question , the plaintiff, in case the jury 
 shall find the damages to be under the value of forty shillings, shall not 
 recover or obtain more costs of suit than the damages so found shall 
 amount unto. 
 
 The construction (c) of this statute, which now prevails, is that 
 the statute is confined to actions of assault and battery, (which action 
 is comprised in it) and actions for local trespasses, wherein it is possi- 
 ble for the Judge to certify that the freehold or title of the land was 
 chiefly in question. In actions, therefore, for local trespasses, the 
 statute applies, whenever an injury is done to the freehold; or to any- 
 thing growing upon or affixed to the freehold; and in a modern case 
 k was carried still further. — That was an action of trespass quart 
 clan sum /regit ; the first count stated, that the defendants broke and 
 entered the close of the plaintiff's, and the grass of the plaintiff't 
 there then growing, with the feet in walking, trod down, spoiled, 
 and consumed, and dug up and got divers large quantities of turf, 
 peat, sods, heath, stones, soil, and earth of the plaintiffs, in and 
 upon the place in which, life, and took and carried away the same, and 
 converted and disposed of the same to their own use. Another count 
 was upon a similar trespass in another close. The defendants pleaded 
 the general issue to the whole declaration, and two special pleas to the 
 second count. On the trial, a verdict was found for the plaintiffs on 
 the general issue, with one shilling damages; and for the defendants 
 on tlie special pleas ; and the Judge had not certified. Per Lord Mam* 
 field. — " The question on this record is, whether the plaintiff are en- 
 titled to any more costs than damages under the stat. 22 fcf 23 C. 2. e. 
 9.? There is a puzzle and perplexity in the cases on this, part ef the 
 statute, and a jumble in the reports; and as the question is a general 
 Gne, we thought it proper to consult all the Judges; and they ate all 
 of opinion, that this case is within the statute, and that the plaintiffs 
 «ught to have no more costs than damages. You will observe, that 
 
 ^)"iTidd r s PiKt.So5. ' (J)Ibid.3c6. (0 Ibid.SSG, 
 
 M m
 
 530 Of Trespass for immediate Injuries [Chap. XXI. 
 
 what has been called an aspsrtavit in this declaration is a mode or 
 qualification of the injury done to the land. The trespass is laid to 
 have been committed on the land by digging, Is'c. and the asportavit as 
 part of the same act, and on the trial of the issue, the freehold cer- 
 tainly -might have come in question. This is clearly distinguishable 
 from an asportavit of personal property, where the freehold cannot 
 come in question, and which therefore is not within the Act. Thus 
 after trees are cut down, and thereby severed from the freehold, if a 
 trespasser comes and carries them away, that case is not within the 
 statute, because the freehold cannot come in question; here it 
 might (a). 1 ' 
 
 Where an injury is done to a personal chattel, it is not within the 
 statute; nor where an injury to a personal chattel is laid, in the same 
 declaration, with assault and battery, or a local trespass; consequently, 
 in these cases, though the damage be under forty shillings, the plaintiff 
 is entitled to full costs, without a certificate. — But then it must be a 
 substantive and independent injury: for where it is laid or proved 
 merely in aggravation of damages, as a mode or qualification of the 
 assault and battery, or local trespass, or there is a verdict for the de- 
 fendant upon that part of the declaration which charges him with an 
 injury to a personal chattel it is within the statute {b). 
 
 The certificate required by this statute need not, it seems, be 
 granted at the trial of the cause. — The award of an arbitrator is not 
 tantamount to a Judge's certificate under this statute. 
 
 It has been determined in several cases, that if the defendant, in 
 trespass quare clausum j regit , plead a licence or other justification, 
 which does not make title to the land, and it is found against him, the 
 plaintiff is entitled to full costs, though he do not recover 40^. damages; 
 the principle on which these determinations have proceeded is, that 
 where the case is such, that the judge who tries the cause cannot in 
 any view of it grant a certificate, it is considered to be a case out of 
 the statute. So on a plea of not guilty to a new assignment of extra 
 viam, the plaintiff obtaining a verdict for less than 40;. damages is en- 
 titled to full costs, without a judge's certificate; unless the way 
 pleaded be set forth by metes and bounds: and when the plaintiff is 
 entitled to costs upon the new assignment, he is entitled to the costs of 
 all the previous pleadings (c). 
 
 The stat. 4^5 W. & M. c. 23. s. 10. after reciting that great mis- 
 chiefs ensue by inferior tradesmen, apprentices, and other dissolute 
 persons, neglecting their trades and employments, who follow hunting, 
 fishing and other games, to the ruin of themselves and damage of 
 their neighbours, enacts, " That if any such person shall presume to 
 
 (*) Doug. 780. (6) Ibid. 88z. (c) Ibid. 884. 
 
 2
 
 Sect. II.] to the Tenant's Possession. 531 
 
 hunt, hawk, fish or fowl, (unless in company with the master of such 
 apprentice, duly qualified by law,) such person shall be subject to the 
 penalties of this Act, and shall or may be sued or prosecuted for his 
 wilful trespass, in such his coming on any person's land: and if found 
 guilty thereof, the plaintiff shall not only recover his damages thereby 
 sustained, but his full costs of suit; any former law to the contrary 
 notwithstanding." The words " inferior tradesman" extend, it seems, 
 to every tradesman, not qualified to kill game : but this was doubted 
 in a subsequent case, wherein the Judges were divided in opinion upon 
 the question, whether a surgeon and apothecary should be considered 
 as an inferior tradesman (a). 
 
 So, by the stat. 8 £? 9 W. 3. c. 11. s. 4. for the prevention of wil- 
 ful and malicious trespasses, it is enacted, « That in all actions of 
 trespass, to be commenced or prosecuted in any of his Majesty's 
 courts of record at Westminster, wherein at the trial of the cause it 
 shall appear, and be certified by the Judge under his hand upon the 
 back of the record, that the trespass, upon which any defendant shall 
 be found guilty, was wilful and malicious, the plaintiff shall recover 
 not only his damages, but his full costs of suit ; any former law to the 
 contrary notwithstanding." The certificate, required by this statute, 
 need not be granted at the trial of the cause ; and if it appear on the 
 trial that the trespass, however trifling, was committed after notice, 
 and the jury give less than 40.C damages, the Judge is bound to certify 
 that the trespass was wilful and malicious, in order to intitle the plain- 
 tiff to his full costs (b). 
 
 In an action of trespass, brought by a pauper against the overseers 
 of the poor, for entering his house and taking away his bed, it was 
 proved that on the defendants' entering the house, the plaintiff de- 
 sired them to go away, notwithstanding which they persevered in 
 accomplishing their purpose. Heath, J. ruled this to be a wilful tres- 
 pass ; and though he reprobated the action as an improper one, under 
 the circumstances in evidence, yet, he said he had no discretion, but 
 was bound to certify that the trespass was wilful (r). 
 
 Where the declararion consists of several counts, the plaintiff in the 
 Court of K. B, is only encicled to the costs of such as are found for him ; 
 and neither party is allowed the costs of those which are found for the 
 defendant. Where the plaintiff's declaration consisted of two counts, 
 to one of which the defendant pleaded the general issue, which was 
 found for the plaintiff, and to the other a justification, to which the 
 plaintiff demurred, and judgment was thereupon given for the defend- 
 ant; the Court agreed that the defendant could have no costs upon the 
 
 (a) Doug. 386, (&) Ibid. 887. (c) Oxf. Sum. An, i?cq. T's. MSS. 
 
 Mm 2
 
 53% Of Trespass on the Case. [Chap. XXI. 
 
 demurrer [a), — But if there be two distinct causes of action, in two 
 separate counts, and as to one the defendant suffers judgment to go by de- 
 fault, and as to the other takes issue, and obtains a verdict, he is entitled 
 to judgment for his costs on the latter count notwithstanding the plaintiff 
 is entitled to judgment and costs on the first count. So where the de- 
 claration in trespass consisted of one count only, to which there.were 
 several pleas of justification on which issues were taken, and a new 
 assignment on which judgment passed by default, and a venire was 
 awarded, as well to assess the damages on the judgment by default, as 
 to try the issues ; all the issues being found for the defendant, it was 
 holden that he was entitled to the costs of them {b). 
 
 Of Trespass on the Case. 
 
 For injuries to his possession, an action on the case will also lie in 
 most cases where trespass would be maintainable ; and in others where 
 it would not. 
 
 An action on the case lies for consequential damages where the act 
 itself is not an injury. It is now indeed a settled distinction, that 
 where the immediate act itself occasions a prejudice, or is an injury to 
 the plaintiff's person, house, land, &c. trespass vi et armis will lie ; 
 but where the act itself is not an injury, but a consequence from that 
 act is prejudicial to the plaintiff's person, house, land, CSV. trespass vi 
 et armis will not lie, but the proper remedy is an action on the case (r). 
 The difference, therefore, between trespass and case is, that in the 
 trespass the plaintiff complains of an immediate wrong ; and in case, 
 of a wrong that is the consequence of another act (d). 
 
 Fixing a spout, therefore, so as to discharge water upon the land 
 of another, is only consequentially injurious, and the party who sus- 
 tains the damage must bring case in order to get a compensation (e). 
 
 So, if a mr.n who ought to enclose against my land, do not enclose, 
 whereby the cattle of his tenants enter into my land, and do damage 
 to me, I may have this remedy {/). 
 
 So, case lies for breaking the fences of a third person, whereby my 
 cattle escape into his land and are distrained (g). 
 
 If a house of office be separated from other premises by a wall, and 
 that wall belongs to the owners of the house of office, he is of common 
 right bound to repair it, and an action on the case will lie. 
 
 In such action by a lessee for years against the owner of the adjoin- 
 ing house, for not repairing a party-wall, by which the plaintiff's house 
 
 (a) Oxf. Su-n. Ass. 1800. T.'s MSS. 888. (b) Ibid. 889. (<) Bull. N. P. 74. 
 
 2 Ld. Raym. 1402. 8 Mod. 375. 6 T. R. 449- (d) 1 Str. 635. (.) a Ld. Raym. 1399. 
 
 {/) BulL N. P. 74. (V) i Ld. R 2 y i:1 . 273.
 
 Sect. II ] Of Trespass on the Case. 533 
 
 was damaged, it is not necessary to state that he was bound by pre- 
 scription to repair the wall ; it is sufficient to declare that he was pos- 
 sessed of a messuage for a certain number of years, and that the de- 
 fendant ought to repair the wall (a). 
 
 Note. If the owner of the house is bound to repair if, he and not 
 the occupier is liable to an action on the case for an injury sustained by 
 a stranger from the want of repair (/'). 
 
 But an action on the case for not repairing fences, whereby another 
 party is damnified, can only be maintained against the occupier, and 
 not against the owner of the fee, who is not in possession (<-). 
 
 Case may be maintained by a lessee for years, for obstructing the 
 lights of an antient messuage. A declaration, that the defendant was, 
 and yet is possessed of a house and a void piece of land, and erected 
 buildings thereon, and thereby stopped the light coming bv the said 
 windows into his house, whereby his house was totally darkened, and 
 he much prejudiced by such stopping, is good (d). 
 
 So in an action for stopping the plaintiff's lights, it is sufficient to 
 declare that lie was possessed of such a messuage for years and had and 
 ought to have such light, without stating that the messuage and lights 
 were antient (<?). — Not lengthening windows, or making more light3 in 
 the old wall than formerly, was thought by L. Hardiuicke not to vary 
 the right of persons. Indeed a contrary doctrine might create innu- 
 merable difficulties in populous cities (_/)• 
 
 A prescription of antient lights is to the house, and not to ihe person (g). 
 Special matter may be given in evidence on the general issue in an 
 action on the case for stopping lights (/.>). 
 
 This action lies for damage done to the plaintiff's colliery, by what 
 the defendant has done to his own colliery, within his own soil, though 
 several other collieries lie between them : and trespass vi ct armis doe» 
 not lie, for the damage is not immediate, but consequential (i). 
 
 Case does not lie for a mere trespass: as, for pulling down a wall, 
 and taking down the tiles from a house, unless it be alleged that the 
 timber was thereby rotted (£). 
 
 A possessory right is sufficient to maintain an action of trespass or 
 case, though not a replevin. But trespass and case cannot be joined, 
 for the judgments differ; that in trespass being a capiatur ,• and that 
 in case, though vi et armis, a miser icordia (/). 
 
 As this action arises from the special damage, any thing may be 
 given in evidence on the general issue that destroys the right of action {in). 
 
 (a) 8 Mod. 312. 2 Ld. Raym. 1089. (4) 2 K. Bl. R. 349. 12 Mod. i63. 3T. R. 766. 
 (c) 4T.R. 318. (J) Cro. Car. 325. (*) u Mod. 116. (/) Atk. 83. 
 
 (g) Cro. Car. 326. {h) 1 Ld. Raym. 732. (;) Com. Dig. tit. " Action on the Case." (A.) 
 (k) Ibid. (B. 6.) (/) 1 Ld. Raynv 27:. 10 Mod, 25. I Ld.Raym. 272. 12 Med. 233, 
 r>) BulL N. P. 78.
 
 531 Of Trespass on the Case. [Chap. XXI. 
 
 A declaration for stopping up a watercourse, without shewing how, 
 is bad upon demurrer : but unobjectionable after verdict (a). 
 
 Case lies against the proprietor of tithes for not taking them away: 
 but trespass vi et armis will not; because it is only a non-feasance 
 and not a mal-feasance {b). The declaration may state that the plain- 
 tiff set out the tithes, and the defendant refused to take them away ; 
 or the plaintiff may declare with a per quod the grass did not grow 
 where the tithes lay, and he could not put his cattle into the close to 
 pasture the residue of the grass, lest they should hurt the tithes ; for 
 though the proprietor of tithes does not remove them in convenient 
 time, the owner of the land cannot put in his cattle and eat them, for 
 to permit if the corn be not removed at the day, to put in his cattle 
 and eat all the corn, would be a much greater loss to the parson than 
 that which the plaintiff hath sustained by the continuance of the corn 
 upon the land, besides that it is much more reasonable to permit the 
 plaintiff to bring an action against the parson, and so the Court to be 
 the judge of the reasonableness of the time, and that the recompence 
 be proportionable to the loss sustained (c). — In such a case, the owner's 
 remedy is either by distress or action {d). 
 
 Case will not lie against a parson for not taking away his tithe, un- 
 less th^y have been properly set out: it is, therefore, not maintainable 
 for not taking away the tithe of hay where it was not set out in 
 swathe (*). 
 
 A parson is not entitled to carry his tithes home by every road 
 which the farmer himself uses for the occupation of his farm. Semble 
 that he may only use such road as the farmer does fox the occupation 
 of the close in which the tithes grow {f). 
 
 For other points respecting this action, we refer our readers to 
 Chap. XVII. 
 
 (a) i Ld. Raym. 452. (!>) 3 Bur. 189. (c) 2 Ld. Raym. 167, 9. 
 
 (d) 3 T. R. 73. (e) 3 Esp. R. 31. (/) % Bos. & Bull. N. R. 466,
 
 f 53.5 ] 
 
 CHAPTER XXII, 
 
 Of Remedies against third Persons; wherein of Forcible 
 Entry and Detainer. 
 
 FORCIBLE entry and detainer are offences at the common law *, 
 and the prosecutor, if he pleases, may proceed in that way : but 
 then the indictment ought to express, not only the common technical 
 words with force and arms, but also such circumstances, as that it may 
 appear upon the face of the indictment to be more than a common tres- 
 pass (a). 
 
 But the safest and most usual way is, to proceed upon the sta- 
 tutes. Concerning which, it may be premised., that " they who 
 keep possession with force, in lands and tenements, whereof they 
 or their ancestors, or they whose estate they have in the same, 
 have continued their possession of the same, by three whole years 
 next before without interruption, shall not be endamaged by force 
 of any of the statutes concerning forcible entry." 8 H. 6. c. $. 
 s. 7. 
 
 Forcible Entry, what. — By the 5 R. 2. c 8. " None shall make 
 any entry into any lands or tenements (or benefice of the holy 
 church, 15 R. 1. c. 2. or other possessions, 8 H. 6. c. 9. s. 2.) 
 but wTiere entry is given by the law; and in such case, not with 
 strong hand, nor with multitude of people, but only in peaceable 
 and easy manner, on pain of imprisonment and ransom at the King's 
 will." 
 
 Or other possessions.'] It seems clear, that no one can come within the 
 danger of these statutes, by a violence offered to another in respect of 
 a way, or such like easement, which is no possession. And there seems 
 to be no good authority, that an indictment will lie on this case for a 
 common or office (b~). 
 
 Not with strong hand, nor with multitude of people.] It seems certain, 
 
 (a) 3 Bur. 1698, 1731, {b) 2 Burn's Just, 1 H. P. C. c. 64. s. 31-
 
 536 Forcible Entry and Detainer. [Chap. XXII. 
 
 that if one, who pretends a title to lands, .barely go over them, ei- 
 ther with or without a great number of attendants, armed or un- 
 armed, in his way to the church or market, or for such like purpose, 
 without doing any act, which either expressly cr impliedly amounts 
 to a claim upon such lands, he cannot be said to make an entry there- 
 into (a) 
 
 But it seemeth, that if a person enter into another man's house or 
 ground, either with apparent violence offered to the person of any 
 other, or furnished with weapons, or company, which may offer fear ; 
 though it be bur to cut or take away another man's corn, grass, or other 
 goods, or to fell or crop wood, or do any other like trespass, a:'-3 i hough he! 
 do nru pin rhc party out of 1 is possession, yet it seemeth io be a forcible 
 entry. But if the entry were peaceable, and ftei" such entry made, 
 thev cut or take away ..ny o- ;er man's corn, grass, wood, or other 
 goods, without apparent vio.ence or force; though such acts are ac- 
 counted a disseisin with force, yet they are not punishable as forcible 
 entries b . 
 
 But if he enter peaceably, and there shall, by force or violence, cut 
 or take any corn, grass, or wood, or shall forcibly or wrongfully carry 
 away any other goods there being ; this seemeth to be a forcible entry 
 punishable by these statute, ^c). 
 
 So also shall those be guilty of a forcible entry, who, having an 
 estate in land, by a defeasible title, continue with force in. the pos- 
 session thereof, after a claim made by one who had a right of entry 
 thereto (d). 
 
 But he who barely agrees to a forcible entry made to his use, with- 
 out his knowledge or privity, shall not be adjudged to make an .entry 
 within theac statutes, because he no way concurred in, or promoted, the 
 force {e). 
 
 Indeed, in general, it seemeth clear, that, to denominate the entry 
 forcible, it ought to be accompanied with some circumstances of actual 
 violence or terror; and Therefore that an entry which hath no other force 
 than such as is implied by the law, in every trespass whatsoever, is not 
 within the statutes. 
 
 As to the matter of violence; it seems to be agreed, that an entry 
 may be forcible, not only in respect of a violence actually done to 
 the person of a man, as by beating him if he refuse to relinquish his 
 possession, but also in respect of any other kind of violence in the 
 ma .ner of the entry, as by breaking open the doors of a house, whe- 
 ther 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 carrying 
 
 (a) 2 Burn's Just. I H. P. C. C. 64. S. %0. (b) Dalt. c. 126. (c) Ibid, 
 
 0Q 1 H. P. G. c. 64. s. »3, (#) Ibid. s. 34.
 
 Forcible Entry and Detainer. 537 
 
 away the party's goods. But it seems, that an entiy is not forcible 
 by the bare drawing up a latch, or puUing back the bolt of a door, 
 there being no appearance therein of being done by strong hand or 
 multitude of people , and it hath been holden, that entry into a house 
 through a window, or by opening a door with a key, is not forci- 
 ble (a). 
 
 In respect of the circumstances of terrors 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 c.tuse to fear that he wiil 
 do them some bodily hurt, if they wiil not give way to him, his entry 
 is esteemed forcible, whether he cause such a terror by carrying with 
 him such an unusual number of attendants,, or by arming himself in 
 such, a manner, as plainly intimates a design, cr by actually threatening 
 to kill, maim, or beat those who should continue in possession, or by 
 giving out such speeches as plainly imply a purpose of using force, 
 as if one say that he will keep his possession in spite of all men, or the 
 like (b). 
 
 But it seems that no entry shall be judged forcible from any threaten- 
 ing to spoil another's good , or to destroy his cattle, or to do him any 
 other such like damage, which is not personal (c). 
 
 However, it is clear that it may be committed by a single person, as 
 well as by twenty 'd). 
 
 But, nevertheless, all those who accompany a man, when he makes 
 a forcible entry, shall be judged to enter with him, whether they actu- 
 ally come upon the land or not (e). 
 
 Forcible Detainer, what. — The same circumstances of violence or ter- 
 ror which will make an entry forcible, will make a detainer forcible 
 also ; and a detainer may be forcible, whether the entry were forcible 
 or not (f ). 
 
 Hoiu punishable by Action. — By stat. 8 H. 6. s. 6. " If any per- 
 son be put out or disseised of any lands or tenements in a forcible 
 mauner, or put out peaceably, and after holden out with strong hand : 
 the p arty grieved shall have assize of novel disseisin, or writ of tres- 
 pass against the disseisor ; and if he recovers he shall have treble 
 damages, and the defendant moreover shall make fine and ransom to 
 the king." 
 
 The Party aggrieved shall have Assize, CSV.] But this action being at 
 the suit of the party, and only for the right, is only where the entry of 
 the defendant was not lawful ; for if a man entereth with force, where 
 his entry is lawful, he shall not be punished by way of action ; but yet 
 
 (,t) i H. P. C. c, 64. s. 26. {!>) Ibici. s. 27. (V) Ibid. 2?. (./) Ibid. zq. 
 
 \e) Ibid. s. %%. (/) Ibid. s. 30.
 
 538 Forcible Entry and Detainer. [Chap. XXII. 
 
 he may be indicted upon the statute, for the indictment is for the force 
 and for the king, and he shall make fine to the king, although his right 
 is never so good (a). 
 
 Treble Damages.] And this he shall recover as well for the mesne oc = 
 cupation as for the first entry; and albeit he shall recover treble damages, 
 yet he shall recover costs, which shall be trebled also ; for the word da- 
 mages includeth costs of suit (b). 
 
 Ho-w punishable at the Sessions. — The party grieved, if he will lose the 
 benefit of his treble damages and costs, may be aided and have the as- 
 sistance of the justices at the general sessions, by way of indictment, 
 on the statute of 8 H. 6. which being found there, he shall be restored 
 to his possession, by a writ of restitution granted out of the same Court 
 to the sheriff (c). 
 
 In the caption of which indictment, it will be sufficient to say, 
 " justices assigned to keep the peace of our lord the king," without shew- 
 ing that they have authority to hear and determine felonies and tres- 
 passes ; for the statute enables all justices of the peace, as such, to take 
 such indictments (d). 
 
 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 
 continueth his possession at the time of finding the indictment ; 
 otherwise he cannot have restitution, because it doth not appear that 
 he needeth it (f). But if a man's wife, children, or servants, do con- 
 tinue in the house or upon the land, he is not ousted of his posses- 
 sion, but his cattle being upon the ground do not preserve his posses- 
 sion (/). 
 
 A repugnancy in setting forth the offence in an indictment upon any 
 of the statutes, is an incurable fault (g). 
 
 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 entry must be laid into the freehold of A. in the possession of 
 B. (h). 
 
 Hoiv punishable by a Justice. — By 8 H. 6. c. o. for a more speedy re- 
 medy, the party grieved may complain to any one justice, or to a mayor, 
 sheriff, or bailiff within their liberties. But although one justice alone 
 may proceed in such cases, yet it may be adviseable for him, if the time 
 for viewing the force will suffer it, to take to his assistance one or two 
 more justices. 
 
 (<?) a Burn's Just. Dalt. c. 129. {b) I Inst. %$1- W DaItl c< l2 9- 
 
 {d) 1 H. P. C. c. 64. s. 36. (e) IVid. s. 37. 41. (/ ) Dak. s. 133. 
 
 (g) 1 H. P. C, c. 64. s. 39. (4) 3 Salk. 169. 3 Bur. 173a.
 
 Forcible Entry and Detainer. 539 
 
 Concerning which power of one justice it is enacted as follows; 
 « After complaint made to such justice, by the party grieved, of a 
 forcible entry made into lands, tenements, or other possessions, or 
 forcibly holding thereof, he shall, within a convenient time, at the 
 costs of the party grieved, (without any examining or standing upon the 
 right or title of either party), take sufficient power of the county, and 
 go to the place where the force is made." 15 R. 2. c. 2. 8 H. 6. c, 9. 
 s. 2. (a). 
 
 Complaint by the Party grieved."] Yet these words do not inforce 
 
 any necessity of such a complaint ; for it is holden, that the justice may 
 and ought to proceed, upon any information or knowledge thereof 
 whatsoever, though no complaint at all be brought unto him, by any 
 party grieved thereby (b). 
 
 Power of the County.'] All people of the county, as well the sheriff as 
 others, shall be attendant on the justices, to arrest the offenders, on 
 pain of imprisonment and fine to the king. 15 R, 2. c. 2. 
 
 And if the doors be shut, and they within the house shall deny the 
 justice to enter, it seems he may break open the house to remove the 
 force (c). 
 
 And if after such entry made, the justice « shall find such force, 
 he shall cause the offenders to be arrested." 15 R. 2. c. 2. 8 H. 6. 
 c. 9. s. 2. 
 
 He shall also take away their weapons and armour, and cause them 
 to be appraised, and after to be answered to the king as forfeited, or 
 the value thereof (d). 
 
 Also such justice ought to " make a record of such force by him 
 viewed ;" which record shall be a sufficient conviction of the offenders, 
 and the parties shall not be allowed to traverse it ; and this record, be- 
 ing made out of the sessions by a particular justice, may be kept by him ; 
 or he may make it indented, and certify the one part into the King's 
 Bench, or leave it with the Clerk of the Peace ; and the other part he 
 may keep himself. For this view of the force by the justice, being a 
 judge of record, maketh his record thereof, in the judgment of the 
 law, as strong and effectual as if the offenders had confessed the force 
 before him : and touching, the restraining of traverse, more effectual 
 than if the force had been found by a jury, upon the evidence of others. 
 (This is, as to the fine and imprisonment, but not as to restitution.) 
 15 R. 2. c. 2. (<?). 
 
 Shall be put in the next Gaol. — The offenders being arrested (as before 
 said), shall be put in the next gaol, there to abide convict by the record 
 of the same justice, until they have made fine and ransom to the king. 
 15 R. 2. c. 2. 
 
 (a) Dalt. c. 44. (i) Lamb. 147; (<) Dalt.c. 44. (J) Ibid. 
 
 (#) Ibid, 1 H. P. C. c. 66. t. *,
 
 540 Forcible Entry and Detainer. [Chap. XXII, 
 
 But it is said, that the justice hath no power to commit the offender 
 to gaol, unless he do it upon Lis own view of the fact, and not upon 
 the jury finding the same afterwards (a). 
 
 And if such offenders, being in the house at the coming of the jus- 
 tice, shall make no resistance, nor make shew of any force, then the 
 justice cannot arrest or remove them at all upon such view. 
 
 If however the force be found afterwards, by the inquiry of 
 the jury, the justice may bind the offenders to keep the peace ; and 
 if they be gone, he may make his warrant to take them, and may af- 
 ter send them to the gaol, until they have found sureties for the 
 peace (/>)• 
 
 Until they have made Fine.'] If the justices convict a man of a forci- 
 ble detainer, they ought to set the proper fine upon him. But this they 
 are not bound to do upon the spot, but they may take a reasonable time 
 to consider of the fine: for by the words of the Act, the commitment 
 is to be until he has paid the fine (c). 
 
 The fine muse be assessed upon every offender severally, and net up- 
 on them jointly ; and the justice ought to estreat the fine, and to send 
 the estreat into the exchequer, that from thence the sheriff may be 
 commanded to levy it for his majesty's use. But upon payment of the 
 fine to the sheriff, or upon sureties found ('by recognizance, for the 
 payment thereof, it seemeth that the justice may deliver the offenders 
 out of prison again at his pleasure (d). 
 
 So much concerning removing the force. But the party ousted can- 
 not be restored to his possession by the justice's view of the force, nor 
 unless the same force be found by the inquiry of a jury. 
 
 Concerning which it is enacted as follows ; " And though that the 
 persons making such entry be present, or else departed before the com- 
 ing cf the justice •, he may notwithstanding, in some good town next the 
 tenement so entered, or in some other convenient place by his discretion 
 (and that though lie go not to see the place where the force is), have 
 power to inquire by the people of the county, as well of them that 
 make such forcible entry, as of them which hold the same with force." 
 8 H. 6. c o. s. 3. 
 
 In order to which, " the justice shall make his precept to the she- 
 riff, commanding him, in the king's behalf, to cause to come be- 
 fore him sufficient and indifferent persons, dwelling next the lands 
 so entered, to inquire of such entries; whereof every man shall have 
 lands or tenements of 40.-. a year, above reprises. And the sheriff 
 shall return issues on every of them, at the day of the first precept 
 returnable 205. and at the second day 40s and on the third day iqos. 
 
 .'-•; Dalt. c. 44. 1 H. P. C. c. 64. s. 8. (&) Dak. c. 44- a Burn's Just 
 
 ; ; z St*-, 794. 2 I.d. Raym. 1514. 1 Scss.Qs; ;8o. (</) Dak. c. 44.
 
 Forcible Entry and Detainer. J41 
 
 and at every day after double. And the sheriff making default, 
 shall, upon conviction of the said justice, or before the judge of as- 
 size, forfeit 20/. half to the king and half to him who shall sue, with 
 costs ; and, moreover, shall make fine and ransom to the king." 
 s. 4, 5. 
 
 An inquisition for a forcible entry is good, although it be not stated 
 that the jurors were then and there sworn and im-pannelled (a). 
 
 Before the same Justice.'] The justice may proceed against the sheriff 
 for this default, either by bill at the suit of the party, or by indictment 
 at the suit of the king (b). 
 
 The defendant, if he is not present, ought to be called to answer for 
 himself; for it is implied by natural justice in the construction of all 
 laws, that no one ought to suffer any prejudice hereby, without hav- 
 ing first an opportunity of defending himself (<:) : and it seems to 
 be settled at this day, that if the defender tender a traverse of the force, 
 the justice ought not to make any restitution till the traverse be 
 tried (d). 
 
 The defendant may also by the 31 Eliz. c. II. plead "three yean' 
 possession ; " whereby it is enacted, " That no restitution upon an in- 
 dictment of forcible entry, or holding with force, shall be made, if the 
 person indicted have had the occupation, or been in quiet possession for 
 three years together next before the indictment found, and his estate 
 therein not determined : and restitution shall stay till that be tried : and 
 if it is found against the party indicted, he shall pay such costs and da- 
 mages as the judges or justices shall assess ; to be recovered as costs and 
 damages in judgment on other actions." 
 
 It hath been holden, that the plea of such possession is good, with- 
 out shewing under what title, or of what estate, such possession was : 
 because it is not the title, but possession only, which is material in this 
 case (e). 
 
 It was holden in Leighioii s case, that if the defendant either traverse 
 the entry or the force, or plead that he has been three years in posses- 
 sion, the justice may summon a jury for the trial of such traverse, for 
 it is impossible to determine it upon view : and if the justice have 
 no power to try it, it would be easy for any one to elude the statute by 
 the tender of such a traverse, and therefore by a necessary construction 
 the justice must needs have this power as incidental to what is expressly 
 given him {/) : and this traverse must be tendered in writing, and not 
 by a bare denial of the fact in words; for thereupon a venire facias must 
 be awarded, a jury returned, the issue tried, a verdict found, and judg- 
 mi. t given, and cojts and damages awarded; and there must be a re- 
 
 (i) Dalt. c. 44. (c) 1 H. P. C. c. 64. s. 60. 
 
 (e) 1 H. P. C. c. 64. s. si- if) Ibid, s. %.
 
 542 Forcible Entry and Detainer. [Chap. XXII. 
 
 cord, which must be in writing, to do all this and not a verbal plea. 
 Upon which traverse tendered, the justice shall cause a new jury to be 
 returned by the sheriff, to try the traverse ; which may be done the next 
 day, but not the same day (a). 
 
 It seemeth, that he who tendereth the traverse, shall bear all the 
 charges of the trial ; and not the king, or the party prosecuting. 
 
 And " if such forcible entry and detainer be found before such jus- 
 tice, then the justice shall cause to reseise the lands and tenements so 
 entered or holder), and shall restore the party put out to the full posses- 
 sion of the same." 8 H. 6. c. 9. s. 3. 
 
 The said Justice.'] It seems to be agreed, that no other justices of the 
 peace, except those before whom the indictment shall be found, shall 
 have any power, either at the sessions or out of it, to make any award of 
 restitution (£). 
 
 Shalt cause to reseise,] And the justice may break open the house by 
 force, to reseise the same ; and so may the sheriff do, having the jus- 
 tice's warrant. 
 
 Reseise.] That is, shall remove the force, by putting out all such 
 offenders as shall be found in the house, or upon the lands, that en- 
 tered or held with force (c). 
 
 And shall restore the Party put out.] And this he may do in his 
 own proper person : or he may make his warrant to the sheriff to do 
 it(d). 
 
 And by 21 J. c. 15. it is enacted, " That such judges, justices, or 
 justice of the peace, as may give restitution unto tenants of any estate 
 of freehold, may give the like unto tenants for term of years, te- 
 nants by copy of court-roll, guardians by knight's service, tenants 
 by elegit t statute merchant and staple, of lands or tenements by them 
 so holden, which shall be entered upon by force, or holden of them by 
 force." 
 
 How punishable on a certiorari. — Although regularly the justices only 
 who were present at the inquiry, and when the indictment was found, 
 ought to award restitution ; yet if the record of the presentment or indict- 
 ment shall be certified by the justice or justices into the King's Bench, 
 or the same presentment or indictment be removed or certified thither 
 by certiorariy the justices of that Court may award a writ of restitution 
 to the sheriff, to restore possession to the party expelled ; for the jus- 
 tices of the King's Bench have a supreme authority in all cases of the 
 crown (e). 
 
 Also where upon removal of the proceedings into the King's Bench 
 the conviction shall be quashed, the Court will order restitution to the 
 
 {a) Dalt. c. 133. (i) 1 H. P. C. c 64. s. 50. (0 Dalt. c. 150. 
 
 00 l H. P. C. c. 64. 5. 49. («-) Dalt. 44.
 
 Forcible Entry and Detainer. 543 
 
 party injured. As in the case of the K. v. Jones, M. 8 G. a conviction of 
 forcible entry was quashed for the old exception of messuage or tenement, 
 by reason of the uncertainty, but the restitution was opposed, on an 
 affidavit that the party's title (which was by lease) was expired since 
 the conviction. But the Court said, they had no discretionary cower in 
 this case, but were bound to award restitution on quashing the con- 
 viction (a). 
 
 How punishable as a Riot. — If a forcible entry or detainer shall be made 
 by three persons or more, it is also a riot, and may be proceeded against 
 as such, if no inquiry hath before been made of the force (b). 
 
 For Precedents of the Forms, see 2 Burn's Justice. 
 (c)iStr. 474. (b) Dak, c. 44,
 
 C 544 ] 
 
 CHAPTER XXIII, 
 
 Of lime dies against third Persons ; wherein of Obstruc- 
 tion of a Right of IV ay. 
 
 \ "WAY, or a right of going over another man's ground has been 
 J- *- before noticed in Chap. V. Sect. II. among other incorporeal 
 hereditaments. 
 
 In such private ways a particular man may have an interest and a 
 right, though another be the owner of the soil (a). 
 
 This may be grounded on a special permission, as when the owner 
 of the land grants to another a liberty of passing over his grounds, to 
 go to church, to market or the like; in which case the gift or grant is 
 particular and confined to the grantee alone ; it dies with the person, 
 and if the grantee quit the country he cannot assign over his right to 
 any other, nor can he justify the taking another person in his com- 
 pany {b). 
 
 A way may also be by prescription, as if all the inhabitants of such 
 a hamlet, or all the owners and occupiers, of such a farm, have im- 
 memorially used to cross such a ground, for such a particular purpose; 
 for this immemorial usage supposes an original grant, whereby a right 
 of way thus appurtenant to lands or houses may be clearly created [c ). 
 
 A right of way may also arise by act and operation of law ; for if a man 
 giants me a piece of ground in the middle of his field, he at the same 
 time tacitly and impliedly gives me a way to come at it; and I may 
 cross his land for that purpose without trespass; for when the law 
 doth give any thing to one, it giveth impliedly whatsoever is necessary 
 for enjoying the same [d). Therefore 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 the closes, having no way to one of 
 them but over the other, part with the latter without reserving the way, 
 it should seem that it will be reserved for him by operation of law. So 
 also under a grant of a free and convenient way for the purpose of 
 conveying oats, among other articles, the grantee has a right to lay a 
 iramed waggon-way (e). 
 
 V zlv.C,:r.. 3j. (J) Ibid.' (0 Ibid. 36. " (</) Ibid. . ( C )8T. R.53.
 
 Of Obstruction of a Right of Way. 645 
 
 Disturbance of ways principally happeneth when a person who hath 
 a right of way over another'6 grounds, by grant or prescription, is ob- 
 structed by enclosures or other obstacles, or by ploughing across it ; by 
 which means he cannot enjoy his right of way, or at least not in so 
 commodious a manner as he might have done (a). 
 
 If this be a way annexed to his estate, and the obstruction is made 
 by the tenant of the land, this brings it to another species of injury; 
 for it is then a nuisance for which an assize will lie (£). 
 
 But if the right of way, thus obstructed by the tenant, be only in 
 gross (that is, annexed to a man's person, and unconnected with any 
 lands or tenements), or if the obstruction ©f a way belonging to a 
 house or land is made by a stranger, it is then in either ease merely a 
 disturbance : for the obstruction of a way in gross is no detriment to 
 any lands or tenements, and therefore does not fall under the legal 
 notion of a nuisance which must be -laid ad nocumentmi liberis tenementisy 
 and the obstruction of it by a stranger can never tend to put the right 
 of way in dispute (c). 
 
 The remedy therefore for these disturbances is not by assize or any 
 real action, but by the universal remedy of action on the case to re- 
 cover damages (d). 
 
 Case and trespass for disturbing a right of way. — A right of way, 
 however, is as often contested in an action of trespass. 
 
 In an action an the case for spoiling the plaintiff's way with the de- 
 fendant's carriages, the defendant may justify going along the way 
 with the carriages of a third person having a right to go along the 
 way (#). 
 
 But under a right of way over a close to a particular place, a man 
 cannot justify going beyond the place. 
 
 Therefore if a defendant justify passing along a private way under a 
 right of way to a close called A. the plaintiff may reply that he went 
 beyond A {/). 
 
 So, it is not a good justification in trespass that the defendant has 
 a right of way over part of . the plaintiff's land, and that he had gone 
 upon the adjoining land, because the way was impassable from being 
 overflowed by a river: for he who has the use of a thing ought to re- 
 pair it; and in the principal case, for aught that appeared, the over- 
 flowing might have happened by the neglect of the defendant; and it 
 did not appear that the defendant had no other road (g ). — Highways, 
 however, are governed by a difftrent principle: they are for the public 
 service, and if the usual tract is impassable, it is for the general good 
 that people should be entitled to pass in another line (h). 
 
 (j) 3 BL Com. 341. (i). Ibid. (r) Ibid. (/) Ibid. 241. (*) Lutw. 114. r Ld. 
 R»ym.75. (/) Ib & (*) Sou e- 74J. ('') i T. R. 57©. 
 
 Nn
 
 546 Of Obstruction of a Right of Way. [Chap. XXIIL 
 
 A man may prescribe for a way for himself and all those whose estate 
 he hath, without shewing that the way is appurtenant to his estate : 
 and if he states that he was seised of two closes, and that he and all those, 
 tffc. had a right of way " tanquam ad tenementa spectantem" the Court 
 will reject these words as surplusage (a). 
 
 In trespass, where no evidence appeared to shew that a way over an- 
 other's land had been used by leave or favour or under a mistake of an 
 award which would not support the right of way claimed, such an usage 
 for above twenty years exercised adversely and under a claim of right, 
 is sufficient to leave it to the jury to presume a grant which must have 
 been made within twenty-six years, as all former ways were at that time 
 extinguished by the operation of an Inclosure Act (b). 
 
 A claim of a prescriptive right of way from A. over the defendant's 
 close into D. is not supported by proof that a close called C. over which 
 the way once led, and which adjoins to D. was formerly possessed by 
 the owner of close A. and was by him conveyed in fee to another, 
 without reserving the right way ; for thereby it appears that the pre- 
 scriptive right of way does not, as claimed, extend unto D. but stops 
 short at C (c) . 
 
 But where in trespass quart clausum /regit the defendant prescribed 
 for an occupation way from his own close " unto, through and over" 
 the locus in quo " to and unto" a certain highway, tsfc. such plea may be 
 sustained, though it appeared that one out of several intervening closes 
 was in the possession of the defendant self id). 
 
 However, under a grant of a way from A. to B. " in, through and 
 along" a particular way, the grantee is not justified in making a trans- 
 verse road across the same (e). 
 
 Quare obstruxit. — Another remedy which the law affords in cases of a 
 similar kind, is by writ of quare obstruxit. 
 
 This writ lay for him who, having a liberty to pass through his 
 neighbour's ground, could not enjoy his right, because the owner had 
 so obstructed it (/)• 
 
 It lies in the nature of a writ of right close, [de recto clauso, directed 
 to the lord or bailiffs of a manor of ancient demesne (g). 
 
 (a) I Ld. Raym. 75. (6) 3 East's R. 294. (c) 1 East's R. 377. 
 
 \d) Ibid. 381. (cited) et vide 8 T. R. 80. (<■) 1 T. R. 560. (/) Fleta, L. 4. c. li. 
 
 ig) F. N. B. II J. tu. Cora. Dig. in roce.
 
 [ 547 ] 
 
 CHAPTER XXIV. 
 
 Of Liability to repair a Church, and of Right to Pews 
 
 therein. 
 
 /^\F common right, that is, by the ancient canon and civil law, the 
 ^-S parson ought to have repaired the whole church ; and it is by the 
 custom of England only that the parish repairs the body (a). 
 
 In one case the Court said, that the repairing of the church is a real 
 charge upon the land, let the owner live where he will (b). 
 
 But in a subsequent case it was holden,that the occupier of land in a 
 parish shall be rated to the repairs of the church, and not the landlord 
 living out of the parish. So, it was said, if a man take a lease of a 
 stall in a market-town where he uses once a week to sell his wares, but 
 lives in another parish, he shall not be charged towards the repairs of 
 the church in that market-town (c). 
 
 So, church ornaments are a personal charge upon the inhabitants, 
 and not upon those who live elsewhere, though they occupy lands in 
 that parish (d). 
 
 The paying towards the repairs of a chapel of ease will not prevent 
 the churchwardens from proceeding in the spiritual court for non-pay- 
 ment of a rate for repairing the mother church e). The making of 
 church-rate is a subject of ecclesiastical jurisdiction ; wherefore a man- 
 damus to the churchwardens to make such rate was refused (f). 
 
 A libel was entered in the Episcopal Court at Exeter, against one for 
 not paying a church-rate at Totness. Plea that the corporation of T was 
 bound to repair, and it appeared that this was the first rate ever made. 
 A prohibition had been moved for on the ground that the plea put in is- 
 sue matter of prescription. Gibbs shewed cause. Lord Kenyan said, an 
 individual may be subject to the repair of the aisle, or any other part of 
 a church, by prescription ; so com. sernb. of the whole church, so that 
 the pai-ishioners may not be rateable, and so of a corporation (g). If 
 therefore certain funds, vested in a corporation who have always been 
 accustomed to the repair of the church, prove inadequate to that pur- 
 
 («) i» Mod. 83. (0) 3 Mod. 211. (0 4 Mod. 148. (d) 3 Mod. an. 
 
 {/) Ibid. 464. (/) jT.R. 364. ( s ) MSS. Easts T. 30 G. 3. 
 
 Nn 2
 
 54$ Of liability to repair a Church, S$c. [Chap. XXIV 
 
 pose, the -inhabitants are not com. stmb. Hable to a rate, but the funds 
 must be applied as far as they will go, and the aid of Parliament be re- 
 sorted to for relief in respect to the sum wanted ; in which case Parlia- 
 ment would probably create a rate on the parishioners, if any, and if 
 there were none, would grant a certain sum (a). 
 
 An individual may have a prescriptive right to a seat, &c* in a church 
 which might be in respect to his house, and its inhabitants, even though 
 it be situated in another parish ; and not in respect to his lands, and the 
 sheep and horses thereon : but the right to repair a part or the whole of 
 the church, may well be in respect of lands (b). 
 
 A person may prescribe for a pew in the chancel of a church (c). 
 
 But there cannot be a gift of a pew without a faculty: and a faculty 
 to a man and his heirs is bad {d). 
 
 However, if a faculty be annexed to a messuage, it may be trans- 
 ferred with the messuage to another person (e). 
 
 A faculty may be granted even for exchanging seats in a church (f). 
 
 A seat in a church may be annexed to a house either by a faculty, 
 or by prescription; and from long uninterrupted usage a faculty may 
 be presumed (g). 
 
 It is impossible to determine h priori) what evidence will or will not 
 be sufficient to support such a right; it must vary in each particular 
 case. 
 
 Evidence of continued possession for thirty-six years, where the 
 pew was claimed as appurtenant to a messuage, was deemed good pre- 
 sumptive evidence of a faculty (h). 
 
 So, uninterrupted possession of a pew in the chancel for twenty- 
 eight years, unexplained, is presumptive evidence of a prescriptive 
 right to the pew, in an action against a wrong doer : which presump- 
 tion however, may be rebutted by proof that prior to that time the pew 
 had no existence (?'). 
 
 But possession alone of a pew in a church, though for above sixty 
 years, was, in an antecedent case > holden not to be a sufficient title to 
 maintain an action on the case even against a wrong doer, for disturb- 
 ance in the enjoyment of it: but that the plaintiff must prove either a 
 prescriptive right or a faculty, and should claim it in his declaration as 
 appurtenant to a messuage in the parish. For bare possession can 
 never give a right; because every parishioner has a right to go into 
 the church: and therefore it was the plaintiff's own fault if he did not 
 gain to himself a complete title to a pew, which he might do either by 
 applying to the ordinary for a faculty, or to the minister or church- 
 wardens to allot him a seat in the church. If bare possession were 
 
 (a) Cro. Eli*. 659. Note — There it nothing in this Case that supports the above Proposition. 
 (J) Cro. J»c. 366. (<) J T. R. 297. id) 1 T. K. 43 1 - '»• (*)• 43*- 0) ih-.i. 431. 
 if) Ibid. (i) 5 T. R. vy. (a) 1 T. R. 4.U- «• («> (') JT. K, 29;.
 
 Chap. XXIV r .] Of liability to repair a Church, 8$c. $4§ 
 
 allowed to be a sufficient title, it would be an encouragement to com- 
 mit disorders in the church ; for disputes would frequently arise re- 
 specting the possession (a) 
 
 Note.— Trespass will not lie for entering into a pew, because the 
 plaintiff has not the exclusive possession; the possession of the church 
 being in the parson j wherefore in case for such disturbance, a right by 
 prescription or faculty must be proved (b). 
 
 But though the possession of the church is in the parson (for the 
 whole church and church-yard are the rector's freehold,) yet, where a 
 rector was cited in the episcopal consistorial court to shew cause why 
 the ordinary should not grant to a parishioner a faculty for stopping 
 up a window in a church, against which it was proposed to erect a 
 monument, to the grant of which the rector dissented, notwithstand- 
 ing which the court below were proceeding to grant the faculty with 
 the consent of the ordinary ; it was held to be no ground tor a prohi- 
 bition : but mere matter of appeal if the rector's reasons for dissenting 
 were improperly over-ruled; for as yet, no common law right was 
 touched which called upon the Court to prohibit the ecclesiastical court 
 from proceeding to grant a faculty ; which faculty was no more than 
 a licence from the ordinary himself to do the act proposed, and would 
 not bind the rector against his consent, if by law his consent were 
 material (c). 
 
 («)iT. R.430. (4) Ibid. (c) 2 East K. aiy.
 
 [ mi 3 
 
 APPENDIX. 
 
 PRECEDENTS OF AGREEMENTS, &c. 
 
 Agreement for granting a Lease of a Home 
 and Field. 
 
 TV /TEMORANDUM of an agreement entered into this 
 -i-'J- day of 1804, between A. B. f of of 
 
 the one part and C. D. of of the other part, where- 
 
 by the said A. B. agrees by indenture to be executed on or 
 before Michaelmas day next, to demise and let to the said 
 C. D. a messuage or tenement, with the garden and ap- 
 purtenances thereto belonging, situate, lying, and being 
 in in the parish of in the county of now 
 
 or late in the occupation of together with all that 
 
 field or close, situate, lying, and being in aforesaid, 
 
 called or known by the name of now or late in the 
 
 occupation of to hold to the said C. D. his execu- 
 
 tors, administrators, and assigns, from Michaelmas day 
 aforesaid for and during the term of years, 
 
 at or under the clear yearly rent of pounds, payable 
 
 half yearly, clear of all taxes and deductions except the 
 land tax. In which lease there shall be contained cove- 
 nants on the part of the said C. D. his executors, admini- 
 strators, and assigns, to pay the rent, and to pay all taxes, 
 rates, and assessments (except the land tax), to repair 
 the premises (except damages by fire), to deliver the same 
 up at the end of the term in good repair (except as last 
 aforesaid), with all other usual and reasonable covenants, 
 and a proviso for the re-entry of the said C. D. his heirs 
 or assigns, in case of non-payment of the rent for the 
 space of days after either of the said rent days, or 
 
 the non-performance of the covenants. — And there shall 
 also be contained a covenant on the part of the said A. B» 
 his heirs and assigns, for quiet enjoyment. And the said
 
 5*02,- Precedents of Agreements* 
 
 C. D. hereby agrees to accept of the said lease on the 
 .... terms aforesaid. — And it is mutually agreed that the costs 
 
 of this agreement, and of making the said lease and a 
 counterpart thereof, shall be borne by the said parties 
 equally. 
 
 In witness, csV. 
 
 Agreement for granting a Farming Lease. 
 
 MEMORANDUM of an agreement made this 
 day of in the year between A. B t*fc. 
 
 of the one part, and C. D. Iz'c. of the other part, where- 
 , by it is agreed, that the said A. B. shal), on cr before the 
 
 25th day of March now next ensuing, make and execute 
 unto the said C. D. his executors, administrators, and as- 
 signs, a good and valid lease of all that messuage, C5r. and 
 all those several closes, pieces, or parcels of land, &c. 
 with the appurtenances thereunto belonging, for the term 
 of years, from the said 25th day of March, at the 
 At a yearly rent, yearly rent of pounds, payable -half yearly clear of 
 
 all deductions for taxes, or any other account whatsoever 
 (except the land tax), the first payment of the said rent to 
 be made at Michaelmas day next, and at or under the ur- 
 And a further ther yearly rent of 5/. for every acre, and so in prop rtion 
 v>k>n hin& Cnr ° T ^ or a ' ess qua^ityi ot " meadow or pasture ground which 
 shall be ploughed or converted into tillage contrary to a 
 covenant to be contained in the said lease, as hereinafter 
 directed : the first payment of the last-mentioned rent to be 
 made on the first half yearly rent day after such ploughing 
 and conversion into tillage as aforesaid ; and in the said 
 taincwenantson ^ ease there shall be contained covenants on the part of the 
 thepartofthete. said C. D. his executors, administrators, and assigns, to 
 _ ' , pay the aforesaid rents, and to pay all taxes, rates, and as- 
 
 To pay rent and r ; r ; 
 
 taxes. sessments (except the land tax), — for doing all manner of 
 
 For repaint]* repairs to the said buildings, hedges, ditches, rails, and 
 (landlord find- other fences (the said A. B. his heirs or assigns, pro- 
 
 i:ig,timber,&c.) ' , V . .,. , r 
 
 viding upon the premises, or within miles thereof, 
 
 rough timber, bricks, tiles, and lime, for the doing there- 
 of, to be conveyed by the said C. D. his executors, ad 
 Tor permission ministrators, or assigns). — For permission for the said 
 to vir.v state of ^ g his heirs or assigns, at all seasonable times, to view 
 
 repairs. . 
 
 Not to plough t^ e SCate or " repairs.- -That the said C. D. his executors* 
 meadow. . administrators^ or assigns, shall not plough or convert in- 
 
 to tillage any of the closes of qneadow or pasture ground
 
 Precedents of Agreement*: 555 
 
 without the licence of the said A. B. his heirs or assigns, 
 
 in writing first obtained.— That the said C. D.hh execu- Not to carry off 
 
 tors or administrators, shall not carry cff from the farm ' 
 
 any hay, straw, or other fodder, and that the said C. D. 
 
 his executors, administrators, or assigns, shall spread on To *P ,ead dun s 
 
 ° * on the premises. 
 
 some part of the said lands in an husbandlike manner, all 
 the dung, manure, and compost, which shall arise from 
 the said farm, and shall in all respects manage and culti- Aai n»a'«ge 
 
 ... .... ,. same in an hu». 
 
 vate the same in an husbandlike manner, and according bandlike man- 
 to the usual course of husbandry used in the neighbour- ,ier ' 
 hood, and shall leave all the dung, manure, and compost To leave dung of 
 
 b ' ' r # last year. 
 
 of the last year, for the use of the landlord or succeeding 
 tenants — That the sa dC D. h : s executors, administra- 
 tors, or assigns, shall not cut or plash any of the quiet Nottocuttiedges 
 hedges under years growth, amd shall cut or plash growt h. 
 
 those at seasonable times in the year, and at the time of 
 doing thereof shall cleanse the ditches adjoining thereto, To c]eante 
 
 ditchcSj Sec* 
 
 and guard and preserve the hedges, which shall be so cut and 
 plashed as aforesaid, from destruction or injury by cattle, 
 and shall also at all times guard and preserve all young 
 hedges and young trees from the like destruction or in- 
 jury. — That the said C. D. his executors, administrators, To prepare fa!- 
 
 i 11 • ..l • i-i j" low lan.ls at the 
 
 or assigns, shalJ, in the summer immediately preceding cnd <)f (he ter ^ 
 
 the determination of the said term to be granted as afore- for a crop. 
 
 said, prepare for seed in an husbandlike manner such 
 
 part of the land as shall be in a course of fallow and fit 
 
 to be sown' with a crop the ensuing season, and lay down 
 
 with clover-seed and rye-grass acres of the arable To lay down 
 
 land which shall be then in tillage, sowing upon each part *' lth cl °" 
 
 fc ' fc> r ver, &c. 
 
 acre thereof pounds of the best clover-seed and 
 
 bushels of the 1xst rye grass seed. And in the said lease And to contain. 
 there shall be contained a proviso for re-entry by the said \£ t °y*~ { 
 A. B. his heirs or assigns, in case of non-payment of »ent 
 for the space of d .ys or non-j erformance of the 
 
 covenants, or in case the said C. D his executors, admi- 
 nistrators, or assigns, sV.all assign, under-T.t, or other- r- 
 wise dispose of the said premise;, or any part th^eof, or 
 do commit or suffer a^y act or deed whereby, or by means 
 whereof- the said premises, cr any pr.rt thereof, shall be 
 assigned, under-let, or disposed of, without the consent 
 in writing of the said A. B. his heirs or assigns, first ob- 
 tained. — And there shall be contained covenants on the And covenant* 
 part of the said A. B. his heirs and assigns, for quiet en- fe^rorfforqu^ 
 joyment. — That the said A. B. his heirs or assigns, shall, tnjoyment. 
 
 upon days notice, provide and allow to the said C. D. his To v r ° v ' id t tim- 
 ber, Sec. for it'
 
 554 Precedents of Agreements. 
 
 executors, administrators, and assigns, upon the premises, 
 or within miles thereof, all such rough timber, bricks, 
 tiles, and lime, as s'lall be necessary for the repair of the 
 premises : the said materials to be conveyed at the expence 
 of the said C. D. his executors, administrators, and as- 
 To permit te. signs. — That the said A. B. his heirs and assigns, shall 
 nam to have the permit the said C. D. his executors, administrators, or 
 fcc. at the end assigns, to have the use of the great barn, the stable for 
 ef the term. £ our horses adjoining, and the stack-yard and farm-yard, 
 until after the expiration or determination of the 
 
 6aid term, for the convenience of thrashing out the last 
 year's crops of corn and grain, and feeding his or their 
 cattle with the straw and fodder, so that the same may be 
 made into manure to be left on the said premises as afore- 
 said ; and also some convenient room in the farm-house for 
 his or their servants to lodge and diet in, until the time 
 aforesaid, without any recompence being made for the same 
 respectively. 
 In witness, &c. 
 
 Agreement for Lodgings. 
 
 EMORANDUM of an agreement entered into this 
 day of 1804, by and between E. F. of, 
 
 \$c. and G. H. of, &c. whereby the said E. F. agrees to 
 let, and the said G. H. agrees to take, the rooms or apart- 
 ments following : that is to say, an entire first floor, and 
 one room in the attic story or garrets, and a back kitchen 
 and cellar opposite, with the use of the yard for drying 
 linen, or beating carpets or clothes, being part of a house 
 and premises in which the said E. F. now resides, situate 
 and being in To have and to hold the said rooms or 
 
 apartments, and the use of the said yard as aforesaid, for 
 and during the term of half a year, to commence from 
 next after the date hereof, at and for the yearly rent of 
 pounds of lawful money of Great Britain, payable 
 quarterly, by even and equal portions ; the first quarterly 
 payment to be made on next ensuing the date hereof: 
 
 and it is further agreed, that at the expiration of the said 
 term of half a year, the said G. H. may hold, occupy, 
 and enjoy the said rooms or apartments, and have the use 
 of the said yard as aforesaid, from quarter to quarter, for 
 so long a time as the said G. H. and E. F. may and shall 
 agree, at the rent of for each quarter, and that each
 
 Precedents of Agreements, 555 
 
 party be at liberty quit possession, on giving to the other 
 a quarter's notice in writing or warning. And it is also 
 further agreed between the said parties, that when the 
 said G H. shall quit the premises, he shall leave them in 
 as good condition and repair as they shall be in on his tak- 
 mg possession thereof, reasonable wear excepted. 
 As witness, iffc. 
 
 An Agreement to let a ready furnished Lodging. 
 
 MEMORANDUM of an agreement entered into this 
 day of in the year of our Lord by and be- 
 tween J. K. of &c . of the one part, and L. M. of £sY. of 
 the other part, by which the said J. K. agrees to let to the 
 said L. M. a room or apartment up pair of stairs 
 
 forwards in his the said J. K.'s house, situate in 
 street, in the parish and county aforesaid, ready furnished ; 
 together with the use and attendance of his servant, 
 
 in common with the other lodgers, at such hours and 
 times when he himself can spare And also the use of a 
 cellar, at the rent of pounds of lawful money of 
 
 Great Britain per quarter. And the said L. M. agrees to 
 take the said room or apartment, with the use of the ser- 
 vant and cellar as aforesaid, at the rent aforesaid, and also 
 to find and provide for himself, all manner of linen and 
 china or crockery ware whatsoever, that he shall have occa- 
 sion for, and that if he shall break or damage any part of 
 the furniture of the said J. K. he will make good or re- 
 pair the same, or pay her sufficient to enable her to put 
 the same in the same plight and condition as they now are 
 in. And it is further agreed, that if either party shall 
 quit or leave the premises, he or she shall respectively give 
 or take a quarter's notice or warning. 
 As witness, Z*fc. 
 
 A Lease for Years of a House and Lands in 
 the Country with an Exception of Trees, and 
 Special Covenants. 
 
 THIS INDENTURE made the day of in the 
 year of our Lord and in the year of the 
 
 reign of our Sovereign Lord George the Third, between
 
 .5,56 Precedents of Leases. 
 
 The pa r tics. A. A. of the one part, and B. B. of the other part, •wit- 
 The considers- nesseth, that for and in consideration of the rents, cove- 
 nants, provisoes, and agreements hereinafter reserved and 
 contained, and which on the part and behalf of the said 
 B. B. his executors, administrators, and assigns, are to 
 be paid, done, and performed, he the said A. A. hath de- 
 The demise. mised, granted, and to farm letten, and by these presents 
 doth demise, grant, and to farm let unto the said B. B. 
 
 his executors, administrators, and assigns, all that mes- 
 
 The parcels. ' c . . ° c 
 
 suage, tenement, or farm-house, late in the possession o 1 
 
 E. B. and those two cottages or tenements, now or late in 
 theposscssion of F. F.axiA G. G. or their assigns, with 
 the appurtenances, situate, standing, and being in the pa- 
 rish of C. and H. or one of them, in the said county of 
 ". ai words, -D. together with all and singular the yards, gardens, ©r 
 chards, backsides, barns, stables, out-houses, edifices, and 
 buildings thereunto belonging, and also ali th©6e several 
 More csrcels. closes, pieces, or parcels of arable land, meadow, pas- 
 ture, wood, and wood ground, containing by estimation 
 acres (be they more or less), lying and being in se- 
 veral parishes, fields, precincts, and territories of C. and 
 H. or one of them, in the said county of D. to the said 
 messuage, tenement or farm-house belonging, and there- 
 with held, used, occupied, and enjoyed, as part and par- 
 jy-cption cf ce ^ thereof (except, and always reserved out of this present 
 - - --' •- lease, unto the said A. A. his heirs and assigns, all timber 
 
 and timber-like trees, and all other trees whatsoever, but 
 the fruit trees for their fruit only, and the pollard trees 
 for their lops and tops only, which now are, or at any 
 f?mc or times hereafter shall be standing, growing, and 
 being in, upon, and about the said leased premises, or 
 With:i>grss!,&e. any part thereof, wkh free liberty of ingress, egress, 
 fjrtkcjtssor.&c. an ^ regress, to and for the said A. A. his heirs* and as- 
 signs, servants and workmen, from time to time, and at 
 
 * Where the lessor has the freehold, make the exception, reservation, fee. to 
 him, his heirs and assigns, and not heirs, executors, administrators, and assigns, 
 go he n>av covenant for himself, his heirs and assign', and it is sufficient ; txe- 
 tuurs and administrators are superfluous ; they are his assigns in law of course, 
 hut have nothing to do with the freehold as such: but where the lessor has not 
 the freeholds then make the exception, reservation, &c. to him, bis executors, 
 administrators, and assigns, and the covenants from him, his executors, admini- 
 strators, and assigns; though here it is usual to make iim -covenant for hitn- 
 s:!/, hit Lars, executors, administrators, and assigns, that he, h;s executors, ad- 
 ministrators, and as-igns, shall and will, Sec. in which case the heir will b* 
 hound.
 
 Precedents of Leases, 557 
 
 all times during the terra hereby leased, the same to fell, 
 stock up, cut dowh, hew, and carry away, in and through 
 the said leased premises, or any part thereof, doing no 
 wilful hurt or damage to the grain and grass of the said 
 B. B. his executors, administrators, and assigns, and also 
 except to the said A. A. his heirs and assigns, at all time 4 n * u j^ t0 
 during die term hereby leased, free liberty to enter into, 
 and upon the said premises, and every part thereof, to 
 view the condition of the repairs thereof) to have and to hold Habendum. 
 the said messuage, tenement, or farm-house, closes, 
 pieces, or parcels of arable land, meadow, pasture 
 ground, and premises, with their and every of their ap- 
 purtenances, (except as before excepted) unto the said 
 B. B. his executors, administrators, and assigns, from the 
 feast of next ensuing the date hereof, for and during, 
 and unto the full end and term of years, thence next For y« r *> 
 ensuing, and fully to be complete and ended, yielding and 
 paying therefore yearly, and every yeaT during the said 
 term, unto the said A. A. his heirs or assigns, at or 
 in his now dwelling-house, situate, &?c. the yearly 
 ■rent or sum of /. of lawful money of Great 
 
 Britain^ at the two most usual feasts or days of payment 
 in the year, that is to say, the feasts of and 
 
 in every year, the first payment thereof to 
 begin and be made on the feast day of next ensu- 
 
 ing the date hereof, and also yielding and paying thereof 
 yearly, and every year during the said term, unto the For year*, 
 said A A. his heirs and assigns, at or in his now dwell- 
 ing-house, situate, C5V. the yearly rent cr sum of /. Paying at the 
 of lawful money of Great Britain at the two most usual ! eSior ' s Ju ' el! ~ 
 
 ' Jng-nou.se .1 
 
 feasts or days of payment in the year, that is to say, the certain rent, 
 feasts of and in every year, the first 
 
 payment thereof to begin and be made on the feast day 
 of next ensuing the date hereof, and ako yield- And an addi- 
 
 J tional rent for 
 
 tng and paying therefore yearly, and every year during ploughing, 
 the said term, unto the .said A. A. his heirs and assigns, 
 on the days and place, and in manner, aforesaid, (over 
 and above the said yearly rent of /. hereinbefore 
 
 reserved,) for every acre of meadow or pasture ground 
 hereby leased, that the said B.B. his executors, admini- 
 strators or assigns, shall ptough, dig up, or convert into 
 tillage, the sum of /. of like money, and so pro- 
 
 portionably after that rate, for every greater or less quan- 
 tity than an acre, the first payment of the said /. per 
 -»cre to be made on the first clav of the said feasts, 'which
 
 558, 
 
 Proviso on 
 •on-payment. 
 
 Or assignment 
 by the lessee 
 without con- 
 sent, the lessor 
 may re-enter. 
 
 The lessee 
 covenants in 
 payment of 
 
 'wjfor repairs. 
 
 Precedents of Leases. 
 
 shall next happen after the ploughing or digging up any 
 part of the same meadow or pasture ground. Provided 
 always, nevertheless, that if it shall happen that the 
 said yearly rents, hereby reserved, or either of them, or 
 any taxes, levies, and assessments, which shall be rated 
 or assessed on the said hereby leased premises, (except 
 land tax) shall be behind and unpaid by the space of 
 twenty-one days, next over or after either of the said 
 feasts or days of payment, whereon the same ought to 
 be paid as aforesaid, (being lawfully demanded,) or if 
 the said B. B. his executors, or administrators, shall 
 assign over, or otherwise depirt with this indenture, or 
 the premises hereby leased, or any part thereof, to any 
 person or persons whatsoever, (except the said two 
 cottages,) without the consent of the said A. A. his 
 heirs and assigns, first had and obtained in writing, 
 under his or their hands and seals for that purpose, then, 
 and in either of the said cases, it shall and may be law- 
 ful to and for the said A. A. his heirs or assigns, into 
 the said premises hereby leased, or any part thereof in 
 the name of the whole, to re-enter, and the same to 
 have again, retain, and repossess, and enjoy, as in his 
 and their first and former estate or estates, any thing 
 herein contained to the contrary thereof, in anywise not- 
 withstanding. And the said B B. doth hereby for him- 
 self, his heirs, executors, administrators, and assigns, 
 covenant, promise, and agree, to and with the said A. 
 A. his heirs and assigns, in manner following, (that is 
 to say,) that he the said B. B. his executors, administrators, 
 and assigns, shall and will well and truly pay, or cause 
 to be paid unto the said A. A. his heirs and assigns, the 
 said yearly rent of /. and also the said rent of /. 
 
 per acre, per annum, for ploughing up any meadow, or 
 pasture, as aforesaid, at the days, times, and places, and 
 in such manner as are hereinbefore limited and appointed 
 for payment thereof, according to the respective reserva- 
 tion thereof, and the true intent and meaning of these 
 presents. And also that the said B. B. his executors, 
 administrators, and assigns, shall and will, at his and 
 their own proper costs and charges, well and sufficiently 
 repair, maintain, amend, scour, cleanse, preserve, and 
 keep in repair the said messuage, tenement or farm- 
 house, and all other the houses, out houses, edifices, 
 buildings, barns, stables, dove-houses, gates, rails, pales, 
 stiies, hedges, fences, and mounds, belonging to the
 
 Precedents of Leases. 559 
 
 said hereby leased premises, from time to time during 
 this present lease, (he the said A. A. his heirs and assigns, 
 upon request and notice to them made, finding and 
 allowing on the said premises, or within four miles' Jhr landlord t» 
 
 ° r » .find all rough 
 
 distance thereof, all rough timber, brick, lime, tiles, and timber. 
 all other materials whatsoever (except straw) for doing 
 thereof, to be carried to the said hereby leased premises, 
 at the charge of the said B. B. his executors, admini- 
 strators, or assigns.) And the same premises, so re- 
 paired, amended, and kept in repair, as aforesaid, at the 
 end, expiration, or other sooner determination of this 
 present lease, shall and will yield up unto the said A. A. 
 his heirs or assigns. And also that the said B* B. his The tenant e*. 
 
 ° , venants not to 
 
 heirs, executors, administrators, or assigns, shall not, sow the same 
 
 nor will at any time during this present lease, crop, or y e ° r s toeether 
 
 sow, above two years together, any of the arable lands and t ha * the 
 
 and closes hereby leased, but every third year permit the ter within the 
 
 same to lie fallow and unsown. And that it shall and term to P iou R k 
 
 the fallow 
 
 may be lawful, to and for the said A A. his heirs and ground. 
 assigns, with servants, horses, ploughs, carts, and other 
 necessaries, at day next preceding the expiration 
 
 of the present lease, to enter upon such closes and 
 grounds, parcel of the said hereby leased premises, as 
 then ought to lie fallow and unsown, and the same to 
 plough, fallow, and manure, and to have the grass, 
 herbage, sheep walks, and sheep commons thereof, and 
 also to enter upon the dung which shall be then in the 
 yard or yards, and at the same time to have the dung in And to have 
 the dove-house, and the hen-dung in the hen-house, lodgingfor 3 
 And also to have some convenient place in the said servants, &c. 
 dwelling-house, for his and their servants to lodge and 
 diet in, and some convenient place to lay hay and chaff 
 in, and some convenient stable for their horses to stand 
 and be in, without extinguishment of any of the yearly 
 rents herein beforeresevved, and without giving or mak- 
 ing any allowance or satisfaction for the same. And The lessee not 
 further y that the said B. B. his executors, administrators, stra w within 
 and assigns, shall not at any time or times during the the last two 
 last two years of the said term, sell, give away, or 
 otherwise dispose of any of. the straw which shall be 
 growing and arising upon the said leased premises, and 
 shall not burn any straw, except it be for the necessary 
 singeing of his and their hogs, for the use of their own 
 families. And that the said B. B. his executors, ad- And t0 in-bam 
 
 i i ii i -ii i . . the corn upon 
 
 mirustrators and assigns, shall and will lay in and in- the premises,
 
 $60 Precedents of Leases. 
 
 barn all the crops of grain, which shall be growing and 
 arising upon the said hereby leased premises, in every 
 year of the said term, in the barns and rick-yards be- 
 longing to the said leased premises, and not elsewhere, 
 and the same there thrash oat, and the straw and stover 
 
 And to use the which shall arise therefrom and thereby, turn into the 
 yard and yards, and the same feed up with his or their cattle, 
 for the better increase and making of dung, and the 
 dung and soil '"hich shall arise thereby, lay, spread and 
 bestow upon the hereby demised premises, in a husband- 
 like manner, and not elsewhere; and shall and will 
 leav unto, and for the use of the sai-d A. A. his heirs 
 or assigns, all the dung and cempost which shall be 
 made on the said leased premises the three last years of 
 the said term, which shall arise from the two last crops 
 of corn and grain, for manuring the premises, or other- 
 wise to be disposed of as he the said A, A his heirs 
 and assigns, shall think fit and convenient; and that the 
 said B. B. his executors, administrators, and assigns, 
 shall sow the three last years of this present lease, one 
 
 To sow peas, third part of the edge crop with peas or vetches. And 
 
 &:c. in the latter , , . . 
 
 years. that the said B. B. his executors, administrators, and 
 
 assigns, shall and will, at all times, during the terra 
 To preserve hereby leased, endeavour to preserve and keep the dove- 
 house, with a good flight of pigeons, dove-hou&e like, 
 and at the end, expiration, or other sooner determination 
 of the said term e>£ years, shall and will give up 
 
 the same, so preserved and kept, into the hands of the 
 said A. A. Ms heirs and assigns. And that the said B. B, 
 his executors, administrators, and assigns, shall and will, 
 at all times during the said term of years hereby 
 
 leased, bear, pay, and discharge all such taxes, levies, 
 To pny taxe?, and assessments whatsoever, as shail be taxed, rated, 
 levied, or assessed upon the said hereby leased premises, 
 land tax only excepted. And that he the said B. B. his 
 executors, administrators, and assigns, shall not nor will, 
 at any time or times during this present lease, cut, plash, 
 N&t to cut or new-make any of the hedges belonging to the hereby 
 ceSS growth, kasea P re ™ ise *> but such as shall be of twelve years* 
 &c - growth, and those only ar seasonable times in the year: 
 
 and when the closes and ground to which 6uch hedges 
 belong shall be sown with wheat, rye, or barley, on a 
 summer's tilth, cr be closes of old pasture, and after the 
 same shall have been cut, plashed or new-made, a& 
 aforesaid, the same preserve and keep from biting, or
 
 Precedents of Leases. 561 
 
 destruction by cattle or otherwise, and shall and will, at 
 such cutting and plashing thereof, cleanse and scour 
 the ditches, against such hedge or hedges, where ditches 
 have been heretofore, and do lie next to any lane or 
 highway, and the offal wood which shall arise by the And t0 s P en <* 
 
 ... - wood in the 
 
 cutting or plashing of such hedges, faggot and make house. 
 up, and carry unto the said leased messuage, or farm 
 house, there to be spent by way of fire wood, and not 
 to be sold or disposed of in any other manner whatso- 
 ever. And that the said A- A. his executors, admini- 
 strators, and assigns, shall not, nor will, at any time or 
 times during the term hereby leased, lop, top, shred, or Not t0 Iv P ,re " 
 
 ° . . excci t pollards. 
 
 cut, any of the trees or spring wood belonging to the 
 said leased premises, but such pollard trees, and spring 
 wood, as have been usually lopped, and cut by former 
 and other tenants, and those only of twelve years' growth, 
 and the lops which shall arise and come therefrom, 
 carry into the said hereby leased messuage or farm house, The loppings to 
 there to be spent by way of fire bote, and net to be sold house"'" 
 or disposed of in any other way whatsoever, and shall 
 not, nor will at any time or times during this lease, 
 inordinately burn or waste any of the fire-wood, which 
 is so allowed to be spent by way of fire boot, as afore- 
 said, and shall preserve and keep the said pollard trees, 
 as also all the fruit trees, and spring wood, belonging to 
 the said hereby leased premises, from all wilful or negli- 
 gent waste. And the said A. A. doth her. by for him- The lessor co- 
 self, his heirs, and assigns, covenant, promise, and agree, timber ibrre- 
 to, and with the said B. B. his executors, administrators, P iUl * 
 and assigns, in manner following, (that is to say.) that 
 he the said A. A. his heirs, and assigns, shall and will 
 from time to time, and ac all tunes during this present 
 lease, at seasonable times tor cutting limber, find, pro- 
 vide for, and allow unto the said B. B. Lis executors, 
 administrators, or assigns, on the said premises hereby 
 leased, or within four miles distant therefrom, necessaiy 
 rough timber, brick, lime, and tiles, and all other ma- 
 terials whatsoever, .or the repairing and amending there- 
 of (except straw), within ferry days after notice of the Upon notice. 
 want thereof, and demand of the same made bv the said 
 B. B. his executors, administrators, or assigns, the said 
 materials to be carried to the said leased premises at the 
 expence of the said B. B. his executors, err. And 
 also shall and will from time to time, and at all times 
 during this present lease, allow unto .he said B, B> his 
 
 O o
 
 And to allow 
 piough-bole, if 
 
 mists. 
 
 62 Precedents of Leases. 
 
 executors, administrators, or assigns, timber to be had 
 and taken off and from the said hereby leased premises, 
 (if any such there be) for necessary plough-bote, to be 
 he pre- ' used and spent upon the said premises, and not else- 
 where, and to be set out for that purpose by the said 
 A. A. his heirs, or assigns on such notice as aforesaid of 
 the want thereof; unci that the said A. A. his heirs and 
 assigns, shall and will permit and suffer the said B. B. 
 his executors, administrators, or assigns, to have the use 
 of all the barns, yards, and granaries hereby leased, for 
 And to allow the laying in, and threshino- out of his or their crop of 
 
 loom for thresh- J b > o r 
 
 ii:g the tenant's corn or grain, which shall be growing and arising upon 
 
 k*aw r ° P " r t ^ ie P vt:m i3es in the last year cf the said term hereby leas- 
 ed, for the spending of the straw and stover which shall 
 arise therefrom, with horses, cows, bullocks, and other 
 cattle, until the feast of next after the end, expira- 
 
 tion, or other sooner determination of the said term ot 
 years; and also to have some convenient rooms in the 
 said hereby leased messuage or farm house, tor his or 
 
 And room for their servants to lodge and diet in, and some convenient 
 place for his and their horses to stand and be in, and 
 some convenient place to lay hay and chaff in, until the 
 said feast day of next after the determination of the 
 
 said term. And lastly, that it shall and may be lawful, 
 to and for the said B. B. his executors, administrators, 
 
 And that the a nd assigns (paying the rent hereinbefore reserved, and 
 
 lcs.ee may en- r * l , 1 • 1 r 
 
 joy, & c . perlorming the covenants and agreements hereinbefore 
 
 mentioned and contained, and which on his and their 
 part and behalf, are or ought to be paid, done and per- 
 formed) peaceably and quietly to have, hold, occupy, 
 possess and enjoy, all and singular the said hereby leased 
 premises, with the appurtenances during the said term of 
 years hereby demised, without any molestation or 
 interruption whatsoever, cf or by him, the said A. A. his 
 heirs or assigns, or of or by any other person or persons 
 lawfully or equitably claiming or to claim, by, from, or 
 under him, them, or any of them. 
 In witness, Iz'c. 
 
 An Indorsement for continuing a Lease for a 
 longer Ten;/, after the Expiration of the 
 Present. 
 
 'HIS INDENTURE, &e. between the within named 
 A. B. of the one part, and the within named C. D, 
 of the other part, witnesseth t that for and in consideration
 
 Precedents of Leases, 562 
 
 of the rent hereby reserved, and of the covenants, con- 
 ditions, and agreements respectively, herein after con- 
 tained, which on the part and behalf of the said C. D. 
 his executors, administrators and assigns, are to be paid, 
 done and performed, the said A. B. hath demised, leased, 
 set, and to farm let, unto the said C. D. his executors, ad- 
 ministrators and assigns, all that piece or parcel of ground, 
 with the messuage or tenement, thereon erected and built, 
 and all and singular other the premises respectively, com- 
 prised in the within written lease, and thereby demised to 
 the said C, D. (except as therein is excepted), to have and 
 to hold the said piece or parcel of ground, and messuage 
 or tenement, and all and singular other the premises here- 
 by leased, set, and to farm let, or mentioned, or intended 
 so to be (except as aforesaid), unto the said C. D. his ex- 
 ecutors, administrators and assigns, from the day of 
 , which will be in the year of our Lord , and 
 when the said within written lease will expire, for and 
 during, and unto the full end and term of vears 
 longer, from thence next ensuing, and fully to be com- 
 plete and ended, subject to, and under the like rent, and 
 payable in like manner, as is within mentioned, for and 
 in respect of the rent reserved, in and by the said within 
 written lease, and subject to the like power of entry as 
 well on non-payment of rent, as on the happening of any 
 of the other incidents mentioned in the within written 
 proviso or condition of re-entry, and it is hereby declared 
 and agreed, by and between the said parties to these pre- 
 sents, that they, and their respective heirs, executors, ad- 
 ministrators and assigns, shall and will, by these presents, 
 during the continuance of the additional term of years 
 hereby granted, stand, and be bound, for and in respect 
 of the said hereby demised premises with the appurte- 
 nances, in such and the like covenants, conditions, and 
 agreements, respectively, as they the said parties and 
 their respective heirs, executors, administrators and as- 
 signs, do now stand bound in and by the said within lease, 
 for and during the now residue unexpired of the within 
 mentioned term hereby granted, it being the intent and 
 meaning thereof, that this present endorsed lease, and the 
 additional term hereby granted, shall be upon such and the 
 like footing, and all the covenants, clauses, conditions and 
 agreements, respectively therein contained, be equally 
 available, t*ke place, and have the like fores and effect, to 
 all intents and purposes, as if every article, clause, matter 
 
 00 2
 
 554 Precedents of Leases. 
 
 and thing, contained in the said within lease, were inserted 
 and contained in this present indenture. 
 In witness, &c. 
 
 A hullding Lease. 
 
 rpHIS INDENTURE, made, bV. between A. B. fcjV; 
 -*• of the one part, and C. J), of the other part, wit" 
 nessethy that the said A. B. for and in consideration of the 
 rents, covenants and agreements, hereinafter reserved and 
 contained, by, and on the part and behalf of the said C. D. 
 his executors, administrators and assigns, to be paid, done, 
 and performed, hath demised, leased, set, and to farm let, 
 and by these presents doth demise, lease, set, and to farm 
 let, unto the said C. D. his executors, administrators and 
 assigns, all that piece or parcel of ground, situate, lying 
 and being, on, fsfc. in the said parish of containing in 
 
 breadth on the north side thereof and in depth on 
 
 the east side thereof be the same more or less, and 
 
 on the west side thereof east and from thence 
 
 south and from thence cast, be the same more or less, 
 together with the messuages or tenements, and other the 
 erections and buildings thereon, which the said C. D. 
 shall have full liberty to pull down, and to take to and for 
 his own use ; which said piece or parcel of ground abuts 
 north on aforesaid, south on gardens to some houses 
 
 on the north side of belonging to the said A. B. now 
 
 on lease to east on buildings, iffc. and west, is'c. and 
 
 is more fully delineated and described in the plan or 
 ground plot thereof, in the margin of these presents, to- 
 gether with all erections and buildings to be erected and 
 built thereon, and all ways, paths, passages, drains, wa- 
 ter, water-courses, easements, profits, commodities, and 
 appurtenances, whatsoever, belonging, and which shall 
 belong to the said hereby demised premises, or any part 
 or parcel thereof, to have and to hold the said piece or par- 
 cel of ground, messuages, or tenements, erections, build- 
 ings and premises hereby demised or intended so to be, 
 with their and every of their appurtenances, unto the said 
 C. D. his executors, administrators and assigns, from the 
 day of last past, before the date thereof, for 
 
 and during, and unto the full end and term of years, 
 
 from thence next ensuing, and fully to be complete and 
 ended, yielding and pay 'ng therefore for the first year of the
 
 Precedents of Leases. ?>65 
 
 said term hereby demised, the rent of a pepper corn on 
 the last day thereof, if demanded, and yielding and pay- 
 ing therefore yearly, and every year, for and during the 
 remaining years of the said term hereby demised, un- 
 
 to the said A. B. his heirs and assigns, the yearly rent or 
 Sum of /. of lawful money of the United Kingdom 
 
 of Great Britain and Ireland, current in Great Britain, by 
 half yearly payment, on the and in each year, by 
 even and equal portions, the first payment thereof to be- 
 gin and be made on in the year of our Lord the 
 said several rents to be paid and payable from time to time, 
 on the several feasts aforesaid, during the said term, free 
 and clear of all rates, taxes, charges, assessments, and 
 payments whatsoever, taxed, charged, assessed, cr imposed 
 upon the said hereby leased premises, or any part thereof, 
 by authority of parliament or otherwise howsoever, dur- 
 ing the term hereby granted. And the said C. D. f Or him- 
 self, his heirs, executors, administrators, and assigns, doth 
 covenant, promise, and agree, to and with the said A. B. 
 his heirs and assigns, by these presents, in manner fol- 
 lowing (that is to say), that the said C. D. his heirs, ex- 
 ecutors, administrators, and assigns, shall and will yearly, 
 and every year during the last years of the said term 
 hereby granted, well and truly pay, or cause to be paid 
 unto the said A. B his heir and assign?, the said yearly 
 rent or sum of /. of lawful money of the United 
 Kingdom of Great Britain and Ire/and, current in Great 
 Britain, on the several days and times, and in the manner 
 hereinbefore limited and appointed for payment thereof, 
 without making any deduction or abatement thereout, for, 
 or in respect of any rates, taxes, assessments, duties, 
 charges, or impositions whatsoever, taxed, charged, as- 
 sessed, or imposed upon the said hereby demised premises, 
 er any part thereof, during the said term hereby granted ; 
 all which rates, taxes, assessments, duties, charges, or im- 
 positions, he the said C. J), his executors, administrators, 
 or assigns, shall and will bear, pay, and discharge, and 
 therefore, and therefrom, acquit, save harmless, and keep 
 indemnified the said A. B. his heirs and assigns. And that 
 he the said C. D. his executors, administrators or as- 
 signs, shall and will, before the expiration of the first 
 year of the term hereby granted, at his and their own 
 proper costs and charges, erect, build, complete, and in 
 a workman-like manner finish, one or more good and 
 substantial brick messuages or tenements, upon some part 
 
 4
 
 S $S Precedents of Leases. 
 
 of the ground hereby demised, and shall and will lay out 
 and expend therein the sum of /. or upwards, and 
 
 also that he the said C. D. his executors, administrators 
 and assigns, shall and will, from time to time, and at all 
 times, from and after the said messuage or tenement, 
 erections and buildings, on the said piece of ground here- 
 by demised, shall be respectively completed and finished, 
 during the remainder of the said term hereby granted, 
 when, where, and as often as need or occasion shall be 
 and require, at his and their own proper costs and charge?, 
 well and sufficiently repair, uphold, support, maintain, 
 pave, purge, scour, cleanse, empty, amend, and keep 
 the said messuage or tenement, messuages or tenements, 
 erections and buildings, and all the walls, rails, lights, 
 pavements, grates, privies, sinks, drains, and watercourses, 
 thereunto belonging, and which shall belong unto the same, 
 in, by, and with all and all manner of needful and neces- 
 sary reparations, cleansings and amendments whatsoever, 
 ^w/that he the said C. D. his executors, administrators and 
 assigns, shall not, nor will, during the said term hereby grant- 
 ed, permit or suffer any person or persons to use, exercise, 
 or carry on, in and upon the said hereby demised premises, 
 or any part thereof, any trade or business which may be 
 nauseous or offensive, or grow to the annoyance, preju- 
 dice, or disturbance of any of the other tenements of the 
 said A. 3. near adjoining thereto, and the said messuage or 
 tenement, messuages or tenements, erections, buildings, and 
 premises, with die walls, pavements, sewers, and drains 
 belonging thereto, being in every lespect so well and suf- 
 ficiently repaired, upheld, supported, sustained, main- 
 tained, paved, purged, scoured, cleansed, emptied, amend- 
 ed, and kept, shall and will, at the expiration, or other 
 sooner determination of the said term hereby granted, 
 peaceably and quietly leave, surrender, and yield up unto 
 the said A. B. his heirs and assigns, together with all the 
 doors, locks, keys, bolts, bars, wainscots, chimney-pieces, 
 slabs, foot-paces, windows, window-shutters, partitions, 
 dressers, shelves, pumps, water-pipes, rails, and all other 
 things which shall be any ways fixed and fastened to, and 
 shall be standing, being, and set up, in and upon the said 
 premises hereby demised, or any part thereof within the 
 last years of the said term hereby granted. And 
 
 that the said C. D. his executors, administrators, and as- 
 signs, shall and will, at his and their own proper costs 
 and charges, from time to time sufficiently insure all and
 
 Precedents of Leases. $67 
 
 every the messuages or tenements, erections and build- 
 ings, which shall be erected and built upon the said piece 
 or parcel of ground hereby demised, or any part thereof, 
 from casualties by fire, during the then remainder of the 
 said term hereby granted, in some or one of the public of- 
 fices kept for that purpose, in London or Westminster ; and 
 in case the said messuage or tenements, erections and 
 buildings, or any of them, or any part of any of them, 
 shall, at any time or times during the said term, be burnt 
 down, destroyed, cr damage- by are, shall and will, from 
 time to time, immediately afterwards, rebuild, or well and 
 sufficiently repair the same. And further ^ that it shall and 
 may be lawful, to and for the said A. B. Ins heirs and as- 
 signs, or any of them, with workmen or others, in his, 
 their, or any of their company, or without, to enter or 
 come into and upon the said demised premises, and every 
 part thereof, at seasonable and convenient times, in the 
 day time, as well at any time or times, during the last 
 seven years of the said term hereby granted, to make an 
 inventory or schedule of the several fixtures and things 
 then standing and being, in and upon the said hereby de- 
 mised premises, which are to be left at the end of the said 
 term, to and for the use of the said A. B. his heirs and 
 assigns, pursuant to the covenant hereinbefore in that be- 
 half contained, as also twice or oftener in every year, during 
 the said term hereby granted, to view, search, and see the 
 defects and want of reparations of the said premises, and 
 all defects and want of reparations, which upon every or 
 anv such view or search shall be from time to time found, 
 to give or leave notice or warning thereof in writing, at 
 or upon the said demised premises, unto, and for the said 
 C. D. his executors, administrators or assigns, to repair 
 and amend the same. And that the said C. D. his execu- 
 tors, admlnisirators or assigns, shall and will, within 
 three months next after every such notice or warning shall 
 be given cr left, at his and their own proper costs and 
 charges, well and sufficiently repair, amend, and make 
 good, ail and every the defects and want of reparations, 
 whereof such notice or warning shall be so given or left 
 as aforesaid. Provided diva-;:, nevertheless, and these 
 presents are upon this condition, that if the said yearly 
 rent, or sum of /. hereby reserved:, or any part there- 
 
 of, shall be behind and unpaid, by the space of days, 
 next after either of the said feasts or days of payment, 
 whereon the same ought to be paid as aforesaid (being
 
 56S Precedents of Leases. 
 
 lawfully demanded), or if the said C. D. his executors, 
 administrators or assigns, shall not well and truly observe, 
 perform, fulfil and keep, all and every the covenants, ar- 
 ticles, clauses, conditions and agreements, in these pre- 
 sents expressed and contained, on his and their part and 
 behalf to be performed and kept according to the true in- 
 tent and meaning thereof, then, and from thenceforth, in 
 either of the said cases, it shall and may be lawful, to and 
 for the said A. B. Ins heirs and assigns, into, and upon 
 the said demised premises, or any part thereof in the name 
 of the whole, wholly to re-enter, and the same to have 
 again, retain, repossess and enjoy, and in his, and their 
 first and former estate, and the said C. D. his executors, 
 administrators or assigns, and all other tenants or occu- 
 piers of the said premises, thereout, and from thence ut- 
 terly to expel, put out, and amove, and that from and 
 after such re-entry made, this present lease, and every 
 clause, article and thing, herein contained on the lessor's 
 part and behalf, from thenceforth to be done and per- 
 formed, shall cease, determine, and be utterly void, to all 
 intents and purposes whatsoever, any thing hereinbefore 
 contained to the contrary thereof in anywise notwithstand- 
 ing. And the said A. B. for himself, his heirs, and assigns, 
 doth hereby covenant, promise, and agree, to and with 
 the said C. D. his heirs, executors, administrators, and 
 assigns, paying the said yearly rent hereby reserved, in 
 manner and form aforesaid, and observing, performing 
 and keeping, all and singular the covenants and agree- 
 ments, hereinbefore mentioned, on his and their parts and 
 behalf to be performed and kept, shall and may lawfully, 
 peaceably zind quietly have, hold, occupy, possess, and 
 enjoy the said piece or parcel of ground and premises 
 hereby demised, with their and every of their appurte- 
 nances, for and during the said term of years here- 
 by granted, without any lawful let, trouble, denial or in- 
 terruption, of or by the said A. B. his heirs or assigns, 
 or any other person or persons, lawfully claiming or to 
 claim, by, from, or under him, them, or any of them. 
 In witness, <SJc. 
 
 Lease of a Ilouae hi a Toxcn. 
 
 "IIIS INDENTURE, &c. between A. A. of &c. of 
 Parties. -*- the one part, and H. H. of, isfc. of the other part, 
 
 •wiinessetb, that for and in consideration of the yearly rent.
 
 Precedents of Leases. 069 
 
 and of the covenants, provisoes and agreements, herein- 
 after reserved and contained, by and on the part and be- 
 half of the said H. H. his executors, administrators and Demise. 
 assigns, to be paid, observed, and performed, he the said 
 A. A hath demised and leased, and by these presents doth 
 demise and lease unto the said H. H. his executors, ad- 
 ministrators, and assigns, all that messuage or tenement 
 and dwelling-house, situate and being on the side or 
 
 part of street, in the parish of in the city of Premises. 
 
 London, together with 'here describe the particulars cf the 
 premise;]; and also ail ways, passages, lights, easements, General words. 
 rooms, vaults, cellars, areas, yards, water-courses, profits, 
 conveniences, hereditaments, and appurtenances, whatso- 
 ever, to the said messuage, or premises hereby demised, be- 
 longing or in any way appertaining, or reputed cr known 
 to be part, parcel, or member thereof: all and singular which 
 said messuage and premises are now, or lately were, in 
 the occupation of G. G. his assignee or assigns, to have Habendum for 
 and to hold the said messuage or tenement and premises, - I ; e3 '- 
 with the appurtenances hereby demised, or so mention- 
 ed to be unto the said H. H, his executors, administra- 
 tors, and assigns, from the 25th day cf December last past, 
 for and dining the term of twenty-one years, thence 
 next ensuing, and fully to be complete and ended, deter- Determinable -at* 
 minable nevertheless at the expiration of the first seven l 
 or fourteen years thereof, upon such conditions as are 
 hereinafter mentioned: he the said H. H. his executors, 
 administrators, and assigns, yielding and paying yearly 
 and every year during the said term, unto the said A. A. 
 his executors, administrators and assigns, the yearly 
 rent or sum of pounds, of lawful money of the United 
 Kingdom cf Great Britain and Ireland, current in Great 
 Britain, the same to be paid by equal quarterly payments 
 on the respective days following: namely, on the 25th 
 day of March, the 2 T th day of 'June, the colli day of 
 September, and the 25th day of December, in every year, 
 (save and except, at all times during the said term, such 
 proportionable part of the said yearly rent of pounds 
 as shall or may grow due during such time, as the 
 messuage or tenement hereby demised, shall without the 
 hindrance of the said H. H. his executors, CirV. be 
 and remain uninhabitable by reason of accidental fire) 
 and to be clear of all and all manner of parliamentary, 
 parochial and other taxes, assessments, rates and deduc- 
 tions whatsoever ; the first quarterly payment thereof tc 
 
 year
 
 570 Precedents of Leases. 
 
 Covenant to 
 
 An! tax 
 cept Ur.i 
 
 commence and be made on the 24th day of June next 
 ensuing the date of these presents. And the said H. H. 
 
 pay rent. doth hereby for himself, his executors, izfe. covenant, 
 
 promise and agree to and with the said A. A. his execu- 
 tors, iyc. that he the said H. II. his executors, £sV. shall 
 and will yearly and every year during the continuance of 
 the said term hereby demised (save and except as afore- 
 said,) well and truly pay, or cause to be paid unto the 
 said A. A. his executors, Vjc. the said yearly sum or 
 rent of pounds, of lawful money of the United 
 
 Kingdom of Great Britain and Ireland, current in Great 
 Britci;;, on the respective days, and in the manner the 
 same is hereinbefore male payable. And also shall and 
 will well and truly pay, or cause ro be paid, all and all 
 manner of taxes, assessments, rates, and impositions 
 whatsoever, parliamentary, parochial or otherwise, (the 
 land-tax only excepted,) which now are, or shall at any 
 time during the continuance of the said term hereby 
 demised, be assessed, rated, or imposed on the said 
 demised messuage or tenement, and premises, or any 
 part thereof, or on the said yearly rent hereby reserved, 
 or any par*: thereof, or on the said H. II. his executors, 
 
 Covenant that fcf r . on acC0U nt thereof. And also that he the 'said H. II. 
 
 itssce snail 
 
 ph'mt every 3d his executors, &c. shall and will at his and their own 
 And do other proper costs and charges, cause to be weli and sufficiently 
 K ? 2:;; ' painted, ail the outside wood and iron work belonging 
 
 to the said messuage or tenement and premises hereby 
 demised, every third year during the continuance of the 
 said term, and at his and their like proper costs and 
 charges, shall and will at all times during the continu- 
 ance of the said term, keep in a good, sufficient, and 
 tenantable state of repair, as weli all and singular the 
 glass and other windows, wainscots, rooms, floors, 
 partitions, ceilings, things, walls, rails, fences, pave- 
 ments, grates, sinks, privies, drains, wells, and water- 
 courses, as also all and every other the parts and ap- 
 purtenances of the said messuage or tenement and pre- 
 Towtr to lessor mises hereby demised, (damage happening by casual fire 
 state of the re- only excepted,) And further, that it shall be lawful for 
 pairs * the said A. A. his executors, effc. either alone or with 
 
 others, twice in every year during the said term hereby 
 granted, at such times of the year as to' him or them 
 shall seem meet, to enter at seasonable times of the day 
 into and upon the said messuage or tenement and pre- 
 mises hereby demised and every part, thereof, znd there
 
 Precedents of Leases. 57 \ 
 
 to view and examine the state and condition thereof, 
 
 notice of such intention to view being at all times pre- After notice, 
 
 viously given unto the said H. II. his executors, Is'c. one 
 
 day at least before the same shall take place-, and in 
 
 case any decay or want of reparation be found on such 
 
 view, the said II. H. for himself, executors, CTc. doth 
 
 herebv covenant, promise and agree, to and with the Covenant for 
 
 ' ' > o ' lessee to quit at 
 
 said A. A. his executors, Is'c to cause the same to be the ,r.i of th* 
 weil and sufficiently repaired and amended within the ^"'.h" pr °_ 
 space of six months after notice thereof in writing; shall mists in repair, 
 
 Sec. 
 
 have been given to him or them for that purpose. And 
 the said H. II. doth for himself, his executors, <£*c. pro- 
 mise, covenant, and agree, to and with the said A. A. 
 his executors, &c. that he the said H. H. his executors, 
 isfc. at the en^\ or earlier determination of the said terra 
 hereby granted, shall and will leave and yield up unto 
 the said A. A. his executors C5V. ail and singular the 
 said messuage or tenement and premises with their ap- 
 purtenances, in such good, sufficient and tenantable 
 stnte of repair as aforesaid, together with all and every 
 the doors, locks, keys, bolts, bars, chimney-piece:?, 
 dressers, shelves, water-pipes, and other things men- 
 tioned in an inventory or schedule, % hereunder written 
 or hereunto annexed, in as good plight and condition as 
 the same now are, (reasonable use and wear thereof and 
 casualties happening by fire only excepted,) Provided al- Pr 
 ways, and these presents are upon this exuress condition, 
 that if the said yearly rent hereby rc'ierven, or any part 
 thereof, shall be in arrears and unpaid for the space of 
 days next after any of the days whereon the same 
 is hereinbetore covenanted to be paid as aforesaid, (it 
 being first lawfully demanded,) or if the said II. II. his 
 executors, c5V. shall not weil and truly observe, and 
 keep, according to their true intent and meaning, ail and 
 every the covenants, clauses, provisoes and agreements by 
 him and them to be observed and kept, then and from 
 thenceforth in either of the said cases, it shall be lawful 
 for the said A. A. his executor?, life, to re-enter into 
 and upon the said hereby demised messuage or tenement 
 and premises, or any part thereof, in the name of the 
 whole, and the same to have again, repossess, retain, 
 and enjoy, as his and their former estate, and the said 
 H. H. his executors, (Ac. and ail other tenants and 
 
 * This inventory niv.it be stamped, 
 
 •rovisn 'or
 
 372 Precedents of Leases. 
 
 occupiers of the said premises, thereout utterly to eject 
 and remove, and that from and after such re-entry made, 
 this lease, and every clause and thing herein contained, 
 shall determine, and be utterly void to all intents and 
 purposes, any thing herein contained to the contrary not- 
 Covenr.nt that withstanding. And the said A. A. for himself, his exe- 
 
 lessee shall o ' 
 
 quietK- enjoy cutors, 'Ac. doth covenant, promise and agree, to and 
 with the said II. H. his executors, ifc. by these pre- 
 sents, in manner following, that is ro say, that he the 
 said II. II. his executors, (Ac. paying the rent hereby- 
 reserved in manner aforesaid, and performing the cove- 
 nants and agreements herein contained and by him and 
 them to be performed, snail and lawfully may peaceably 
 and quietly hold, occupy, and enjoy the messuage or 
 tenement, and all other the premises hereby demised, 
 for and during the said term of twenty-one years hereby 
 granted, without any lawful action, suit, or interruption 
 of the said A. A. his executors, Ac. or any ether person 
 lawfully claiming by, from, or under him or any of 
 
 Free fr^m the them ; and that freed and discharged, or otherwise by 
 
 original lease. ...... . . 111 \ 
 
 the said A. A. Ins executors, b c. saved harmless and 
 indemnified from the rents and covenants reserved and 
 contained in a certain indenture of lease, bearing date 
 the day of in the year of our Lord 
 
 whereby the said A. A. holdeth the said messuage or 
 tenement and premises hereby demised, from the date 
 hereof for the term of sixty-one years, and from 
 
 all claims and demands whatsoever in respect thereof. 
 Covenant for And t ] ie sa jj ^ ^ ^th hereby further covenant, pro- 
 
 the renewal if, _ ._.___.. 
 
 the lease. mise and agree to and with the said H. H. his executors, 
 
 Ac. that the said A. A. his executors, Ac. shall and 
 will, before the expiration of tins present lease, on the 
 request, and at the costs and charges of the said H. II. 
 his executors, Ac. grant and execute unto him and 
 them, a new and fresh lease of the messuage or tene- 
 ment, and all other the premises hereby demised, with 
 their appurtenances, for the further term of years, 
 
 to commence from the expiration of the term hereby 
 granted, the same to be at the same yearly rent, pay- 
 ' able in like manner, and under and subject to the like 
 covenants, provisoes and agreements, (except a covenant 
 for the renewal thereof at the end of such further term,) 
 as are contained in these presents, such new lease how- 
 ever to be granted and be valid, only on condition that 
 the said //. II. his executor?, Ac. do execute a counter-
 
 Precedents of Leases, §c. ^7^ 
 
 part thereof, and also pay unto the said A. A. his exe- 
 cutors, C5V. the sum 'of pounds of lawful money, 
 &c, at the time of executing the said lease, as and by 
 way of tine or premium for the renewal thereof, And A ; "' d f " d " ter " 
 also t that if the said H. H. his executors, &c. shall be 
 
 ,RS li 
 
 desirous to quit the said messuage or tenement and pre- emfat tKt ie 
 
 mises hereby demised, at the expiration of the first seven see's option. 
 
 or the first fourteen years of the term of twenty-one 
 
 years hereby granted thereof; and of such his or their 
 
 desire, shall give notice in writing to the said A. A. his 
 
 executors, 'd'c. six calendar months before the expiration 
 
 ot the said first seven or fourteen years, (as the case 
 
 may be; then and in such case, (all arrears of rent being 
 
 duly paid, and the said messuage or tenement, and all 
 
 other the premises hereby demised, being in such repair 
 
 as they are hereinbefore covenanted to be maintained and 
 
 left in,) this lease and every clause and thing herein 
 
 contained, shall, at the expiration of such first seven 
 
 or first fourteen years of the said term of twenty-one 
 
 years hereby granted, (whichever be in the said notice 
 
 expressed,) determine and be utterly void to all intents 
 
 •and purposes, in like manner as if the whole term of 
 
 twenty-one years had y?a\ out and expired, any thing in 
 
 these presents contained to the contrary notwithstanding. 
 
 In witness whereof the said parties have hereunto set 
 
 their hands and seals, the day and year first above 
 
 written. 
 
 A. A. (Seal) 
 II. II. (Seal) 
 
 Sealed and delivered in the presence of 
 
 2. B. of 
 
 G. C. of 
 
 Ad Indorsement to continue the Term of an ex- 
 piring Lease. 
 
 ry HIS INDENTURE made the day cf in 
 
 -*■ the year of our Lord and in the year of 
 
 the reign or" our Sovereign Lord George the Third, &c, 
 between the within named K. L. of the one part, and 
 the within-named M. N. of the other part, ivitnesseth, 
 That in consideration of the rent hereby reserved, and 
 of the covenants, provisoes and agreements herein con- 
 tained, by and on the part and behalf of the said M. N.
 
 Habcndi 
 
 574 Precedents of Leases, S^c. 
 
 to be paid, observed and performed, the said AT. L. his 
 executors, SsV. All that piece or parcel of ground, with 
 the messuage or tenement thereon erected, and all and 
 singular other the premises comprised in the within 
 written lease, and therebv demised or mentioned so to 
 be. To have and to hold the said piece or parcel of 
 ground, or messuage or tenement, and premises, unto 
 the said M. N. his executors, Zzfc. from the day 
 
 of which will be in the year of our Lord 
 
 when the within written lease will expire and determine, 
 for and during, and unto the full end and term of 
 years thence next ensuing, subject to and under the 
 same rent, as in the within written lease is reserved, 
 and also subject to the like power of re-entry on the 
 non-payment of the rent, or the happening of any ether 
 of the incidents mentioned in the proviso for re-entry 
 within written. And it is hereby declared and agreed, 
 by and between the parties to these presents, that they 
 and their respective executors, &c. shall and will, dur- 
 ing the continuance of the additional term of 
 years hereby granted, stand to and be bound by such 
 and the like covenants, provisoes and agreements, as 
 they, their respective executors, &c, are now bound by 
 according to the within written lease, in respect of the 
 said messuage or tenement and premises thereby and 
 hereby granted, it being the intent and meaning of the 
 parties hereto that this indorsed lease and the additional 
 term hereby granted, shall be upon such and the like 
 footing as is tire lease within written, and that all the 
 covenants, provisoes, and agreements in the within 
 written lease contained be equally available and have the 
 like force and effect to all interns and purposes as if the 
 same and every thing in the said lease contained were 
 repeated and inserted m these presents. 
 In witness, ifc. 
 
 Covenant by the Lessee not to use or assign the 
 Premises for any oifensvee Trade. 
 
 \ND also that the said C. D. his executors, £sV. 
 shall not nor will, at any time during the continu- 
 ance of the said term hereby granted, use or carry on, 
 or suffer or permit to be used or carried on, in the said 
 demised messuage or tenement and premises, or assign
 
 Precedents of Assignments. $75 
 
 over the present indenture of lease, or set over, let or 
 assign any part of the said messuage or tenement and 
 premises, to any person or persons using or carrying on 
 the trade, business or calling of a maker of sedan or 
 other chairs, baker, brewer, butcher, currier, distiller, 
 dyer, founder, smith, soap-boiler, school-master cr 
 school-mistress, sugar-baker, auctioneer, pewterer, tallow- 
 chandler or tallow-melter, working brazier, tinman, tripe- 
 boiler, pipe-maker, pipe-borer, plumber, cr any other 
 noxious or offensive trade, business, or calling what- 
 soever, without the consent in writing of the said A. B. 
 his executors, ;s'c. first had and obtained for that pur- 
 pose, nor shall nor will, without such consent as afore- 
 said make or cause to be made any addition or alteration 
 whatever, in, upon, or about the said messuage or tene- 
 ment and premises, or any part thereof. 
 
 An Assignment of a Leasehold Interest by Deed- 
 poll indorsed on the Lease. 
 
 NOW all men by these presents, that I the with'.n 
 named A. B. for and in consideration of the sum 
 of five shillings of lawful money of the United Kingdoms 
 of Great Britain and Ireland current in Great Britain to 
 me in hand paid by A T . U. of g ent ' at or before 
 
 the ensealing and delivery of these presents, the receipt 
 whereof I do hereby acknowledge, have bargained, sold, 
 set over, and assign unto the said N. 0. all and singular 
 the messuage or tenement, yard, garden, coach-house, 
 stables, out-houses, and hereditaments, in and by the 
 within written indenture demised or mentioned so to be, 
 with their appurtenances, and also all that small garden 
 at the end of and adjoining to the aforesaid garden, with 
 the summer-house and mount which were leased or 
 agreed to be leased to me by the within named E. F. by 
 agreement between us dated the day next before the day 
 cf the date hereof for twenty-one years or such other 
 term as is therein mentioned, at the yearly rent of ten 
 pounds of said lawiul money of the United Kingdoms of 
 Great Britain and Ireland, current in Great Britain pay- 
 able quarterly, that is to say, at the feasts of <s'c and 
 also all my estate, right, title, interest, term of years,
 
 576 Notices to quit Premises, 8$c. 
 
 claim and demand whatsoever, of, into, or out of the 
 same messuage and other the premises, or any or either 
 of them or otherwise howsoever, together with the same 
 indenture and agreement and all the benefit thereof, To 
 have and to hold the said messuage or tenement, build- 
 ings, gardens, summer-house, mount, and other the 
 premises hereby assigned or mentioned so to be, with 
 the appurtenances, unto the said N. 0. his executors, 
 administrators, and assigns, from henceforth, for all the 
 now residue of the within mentioned term of twenty- 
 one years, and of such other term or terms as I the said 
 A. B. now have or ought to have therein respectively, 
 subject nevertheless to the rents, covenants, and agree- 
 ments in the said indenture and agreement respectively 
 reserved and contained and agreed upon, and which 
 from henceforth on the tenant's or lessee's part are or 
 ought to be paid, done and performed. 
 In witness whereof, &c. 
 
 Forms of Notices to quit Possession of the Pre* 
 
 mixes, Repair, eye. 
 
 [They need not be stamped.] 
 
 Tsotice by the Landlord to his Tenant. 
 Sir, 
 T Hereby give yen notice to quit the premises which 
 -a you hold of me situate at in the county of 
 
 on next, or at the expiration of the current year of 
 
 your tenancy*. 
 
 Yours, crV. 
 [the date.'} A. B. [the landlord.] 
 
 To /. K. [the tenant in possession. ~\ 
 
 Another Form, more particularly describing the 
 
 Pre macs. 
 Sir, 
 
 \ r OU are hereby required to quit possession of the 
 Premises which you hold of me, namely, a mes- 
 suage and garden with the appurtenances, [describing the 
 
 * 'i ].!■. prrcautxn becomes nece:s.::y in ord^r to prevent the nonsuit, 
 - h'.ci. !-.. p; - :: rr.ay obt.'in where t'n- pcison seekirg possession is not certain 
 'A' :h; : rr.; ivhvn th: tenancy commenced.
 
 Notices to c<nt Premises, <%c. 677 
 
 Premises.'] situate in the parish of in the county of 
 
 now occupied by you on next, or at the 
 
 expiration of the current year of your tenancy. 
 Dated this day of 1 8 — 
 
 B. E. [tffe landlord] or C. F. agent 
 To C. E. [the tenant.'] for B. E. legally authorized. 
 
 A third Firm, 
 Mr. C. D. 
 
 I Hereby give you notice to quit and deliver up to rnc 
 on Christmas-day next, the peaceable and quiet pos- 
 session cf ail those two messuages, tenements, and 
 dwelling-houses with their appurtenances, situate in 
 
 in the parish of in the [city, borough, or county'] 
 
 of which you lately held under Messrs. and 
 
 which you now held of me, as tenant from year to year, 
 provided your tenancy originally commenced at Christmas 
 or otherwise, that you quit and deliver up to me the 
 peaceable and quiet possession of the said premises, at 
 the end of the year of your tenancy, which shall expire 
 next after the end of half a year from the date hereof. 
 Dated this davof 18— . A. B. 
 
 This seems to be the proper form of a general notice to quit, and is accord- 
 ing to the form which was deemed sufficient in the cas; of Da: tx dim. Phclp 
 ■v. Buiie:; 2 E<i>. P.. j8o. 
 
 Notice to quit lodgings. 
 Sir, 
 
 I Hereby give you notice to quit and deliver up on cr 
 before next, the rooms or apartments, and 
 
 other tenements which you now hold of me in this house 
 [as the case is.] 
 
 Witness my hand, this day of in the year 
 
 To E. N. r the lodger.] E. F. [the landlord.] 
 
 Notice to the Tenant either to quit the Fre- 
 ??nses, or pay double Rent. 
 Sir, 
 Hereby give you notice to quit and yield up, on the 
 day of next, possession of the mes- 
 
 suage with its apourtenances, lands, tenements, and
 
 57 S Notices to quit Premises, §c. 
 
 hereditaments which you now hold of me, situate at 
 
 in the parish of and county of 
 
 in failure whereof I shall require and insist upon double 
 the value of the said premises according to the statute in 
 such case made and provided. Dated this day 
 
 of 
 To A. B. [tenant.] E. N. [landlord'] 
 
 Notice to quit by the Tenant. 
 Sir, 
 
 I Hereby give you notice that on day of 
 
 I shall quit possession of the messuage or tenement, 
 and premises which I now hold of you, situate at 
 in the parish of in the county of 
 
 Dated this day of 18 — . 
 
 Yours, fcV. 
 To T. E. [landlord.] A. B. [tenant ] 
 
 Notice by the Tenant to quit Lodgings. 
 Sir, 
 HJ^HIS is to give you notice that on day of 
 
 A next I shall quit and deliver up possession of the 
 rooms or apartments and other tenements which I now 
 hold of you in this house. 
 
 Witness my hand, this day of i3 — . 
 
 A T . O. [the lodger. 1 
 
 Notice to Tenant to repair. 
 Sir, 
 
 YOU are hereby required to put in good and tenant- 
 able repair, all and singular the messuage or tene- 
 ment and premises which you now hold of me, situate 
 at, or. Particularly the servant's hall in the said mes- 
 suage or tenement, and the tilting or roof at the northern 
 end thereof [as the case may be.~\ 
 
 Witness my hand, this day of 
 
 To E. N. [tenant.] P. L. [landlord.} 
 
 Notice to Tenant to pay Rent. 
 Sir, 
 •HIS is to warn you that unless you pay, or cause to 
 be paid unto me, on or before the day of 
 
 next, the sum of being a year's rent
 
 Distress, how made. ,579 
 
 due on the day of for the messuage or tene- 
 
 ment and premises which you now hold of me, at the 
 yearly rent of situated, ilfc. I shall claim and insist 
 
 upon such forfeiture thereof, as I may be by law en- 
 titled to. 
 
 Witness my hand 
 
 X. Y. [landlord.] 
 To /. K. [tenant.'] 
 
 Hoxd to male a Distress for Rent Arrear, and 
 of the Sale of the same. 
 
 ^I " HE landlord himself, or any other person, as Ids bai- 
 •^ lifT, by an authority from him in writing, may make Written aptho- 
 the distress. The warrant or authority may be in the fol- my Co duUain - 
 lowing form : " To Mr. A. B my bailiff, greeting. — Dis- 
 train the goods and chattels cf C, D. fthe tenant;, in 
 the house he now dwells in (or on the premises in his 
 possession), situate in in the county of for 
 
 pounds, being one year's rent, due to me for the 
 same at Christmas day last, and for your so doing this 
 shall be your sufficient warrant and authority. Dated 
 the day of 1 8—. ' « J. S." 
 
 Being legally authorized to distrain, you enter on the How to make 
 premises, and make a seizure of the distress. If it be 
 made in a house, seize a chair or other piece of furniture, 
 and say, " 1 seize this chair, in the name of all the goods 
 « { in this house, for the sum of pounds, being one 
 
 « year's rent due to me (or to J. S. the landlord) at 
 " Christina-, day last, by virtue of an authority from the 
 u said J. S. for that purpose (provided you distrain as bai- 
 
 « hfy 
 
 Then take an inventory of so many goods as you judge 
 will be sufficient to cover the rent distrained for, and al- 
 so the charges of the distress. Make a copy thereof, as 
 follows : 
 
 " An inventory* of the several goods and chattels dis- The inventory. 
 < f trained by me A. B. this day of in tha 
 
 ts year of our Lord in the houses, out-houses, and 
 
 * This inventory is liable to a 2:. 6d. stamp-duty by stat. 37 G. 3. c. 90. 1. 1. 
 Pp 7,
 
 530 Di$lress t hozo made. 
 
 u lands (as the case is), of C. D. situate in in the 
 
 «« county of by the authority and on the behalf of 
 
 * r 7- & {p^vided yon distrain as bailiff), for the sum of 
 li pounds, being one year's rent due to me, or to 
 
 « the sai-.l J. S. (as the case is) } at Christmas day last. 
 
 « In the dwelling-house, two tables, two chairs, &c. 
 
 li In t!ie barn, six hurdles, and so on." 
 
 At the bottom of 4he inventory, subscribe the following 
 notice to the tenant : 
 
 « Mr. C. D. 
 
 The .notice to «« Take notice, that I have this day distrained (or that 
 
 the tenant. . . 
 
 " as bailiff to J. S. your landlord, I have this day dis- 
 «« trained) on the premises above mentioned, the several 
 fC goods and chattels specified in the above inventory, for 
 " the sum of pounds, being one year's rent, due to 
 
 " me (or to the said J. S.) at Christmas day last, for the 
 " said premises ; and that unless you pay the said rent, 
 <c with the charges of distraining for the same, within 
 " five days from the date hereof, the said goods and chat- 
 Ci tels will be appraised and sold according to law. Given. 
 " under my hand, the day of in the year of 
 
 « our Lord « W. 7." 
 
 Howseived. A true copy of the above inventory and notice must 
 
 either be given to the tenant himself, or left at his house, 
 or, if there be no house, on the most notorious place on 
 the premises. And it is - proper to have a person with you 
 when you make the distress, and also when you serve the 
 inventory and notice, to examine the same, and to attest 
 the regularity of the proceedings. 
 
 Of removing the The goods may be removed immediately, and in the no- 
 tice the tenant may be acquainted where they are removed; 
 but it is now most usual to put a man in possession, and 
 let them remain on the premises till you are entitled by 
 
 when th«y may law to sell them*, which is on the sixth day inclusive, 
 after the distress made, i. c. goods distrained on the Satur- 
 day, may be removed and sold on the Thursday afternoon 
 following. Wallace v. King and another, i H. BL 13. 
 
 1 By the common law, a distress was merely a pledge, and could not be soli': 
 butro protect landlords in the recovery of their rent, the statute % W. fc M. I, 
 .. -. c. %. authorizes the sale of goods distrained for rent, after five days from 
 the making Cf the di:tres!,
 
 Distress, how made. 581 
 
 li the tenant require further time for the payment of Hdfv, if further 
 the rent, and the landlord chuses to allow it, it is best to time *** ured * 
 take a memorandum in writing from the tenant; " That 
 " he does consent that he should continue in possession 
 " of his goods and chattels in lyis house (or upon the pre- 
 " mises), for such a time longer, you having agreed not 
 w to sell them for that time, and that he will pay the ex- Agreement ft* 
 " pences of keeping possession." This memorandum a p * 
 prevents the landlord from being deemed a trespasser, 
 which, after the expiration of five days, he otherwise 
 would be, and might have an action of trespass brought 
 against him for staying longer upon the premises, 
 
 If there be no allowance cf, or agreement for, further How to starch 
 
 , , ..„,.., - , for replevi and. 
 
 time, search at the expiration oi the live days at the she- pureed 10 same. 
 
 riff's office to see if the goods have been replevied ; if 
 
 not, and the rent and charges still remain unpaid, send 
 
 for a constable* and two sworn appraisers, who having 
 
 viewed the goods, the former must administer to the latter 
 
 the following oath : 
 
 " You, and each of you, shall well and truly appraise Appraisers* oath, 
 u the goods and chattels mentioned in this inventory 
 < c (holding it in his hand), according to the best of your 
 ** judgment. So help you God." 
 
 Then indorse on the inventory the following memo* 
 randum : 
 
 " Memorandum \ that on the day of in the Memorandum 
 
 " year of our Lord A. B. of, &fr. and C. D. of, &c. lheMof - 
 " two sworn appraisers, were sworn upon the Holy 
 *« Evangelists, by me J. K. of, iffc. constable, well and 
 » truly to appraise the goods and chattels mentioned in 
 «« this inventory, according to the best of their judgment, 
 
 " As witness my hand, 
 " Present at the time " J, K. Constable .** 
 
 « of swearing the said 
 « A. JS. and C. D. as 
 «« above, and witness 
 " thereto. 
 
 « L. M. 
 
 « O. P. M 
 
 * It should be a constable of the hundred, parish wr place, where such dis- 
 tress was taken, and not one out of'the district, Wallate v. King, 1 IL 
 £lac> 14-
 
 582 distress, how made. 
 
 After the appraisers have valued the goods, continue* 
 the indorsement on the inventory as follows : 
 
 " We, the above named A. B. and C. D. being sworn 
 " upon the Holy Evangelists, by J. K. the constable 
 Appraisement. t{ above named, well and trulv to appraise the goods and 
 " chattels mentioned in this inventory, according to the 
 " best of our judgment; and, having viewed the said 
 tc goods and chattels, do appraise the same at the sum of 
 " pounds. As witness our hands the 
 
 « day of in the year of our Lord 
 
 A. B.) 
 
 f t\ \ Sworn Appraisers." 
 
 How disposed When the goods are thus valued, it is usual for the ap- 
 
 praisers to buy them at their own valuation, and a receipt 
 at the bottom of the inventory, witnessed by the consta- 
 ble, is usually held a discharge. But if the distress be of 
 considerable value, it is much more adviseable to have a 
 proper bargain and sale between the landlord, the consta- 
 ble, the appraiser, and the purchaser. 
 
 The goods being disposed of, deduct the rent in avrear, 
 and all reasonable charges attending the distress, and re- 
 turn the overplus (if any) to the tenant. 
 
 If the produce is not sufficient to cover the demand, 
 you may distrain again. 
 
 Form of a Tenant's Consent to the Landlord's 
 continuing in Possession upon the Premises, 
 •when he requires further Time jor Payment. 
 
 E. T. do hereby consent that A. B. my landlord, who 
 on the day of distrained my goods 
 
 and chattels for rent due to him, shall continue possession 
 thereof on the premises for the space of seven days from 
 the date hereof, the said A. B. undertaking to delay the 
 sale of the said goods and chattels for that time, in order 
 to enable me to discharge the said rent. 
 
 Witness my hand, this day of 18 — . 
 
 E. T.
 
 Precedents in Rcplevl.;. £8' 
 
 Notice to the Sheriff when in Possession on an 
 Execution. 
 
 F the sheriff" is in possession of the tenant's goods on 
 an execution, the landlord need not make a distress, 
 but should forthwith serve him with the following notice: 
 
 To N. 0. . 
 
 at, d V Esqrs. Sheriffs of Middlesex [as the case maybe.'] 
 E. F. J 
 
 TAKE notice, that the sum of for one year's [as 
 
 the case is'] rent due at last, is now due from E. N. 
 
 the person to whom the goods belong of which you are 
 now in possession, by virtue of his Majesty's writ of 
 returnable [state the writ and return]. 
 
 As witness my hand, this day of 18 — ■• 
 
 2\ote. The man in possession of the goods, SsV. is to be 
 paid 2:'. 6d. per die:?:, if the tenant keep him; and 2 s - &&• 
 if he keep himself. 
 
 Precedents of Pleadings in Replevin. 
 
 re TIE King, &c. We command you that justly, and Writ of repWvi 
 -* without delay, you caust^ to be replevied the cattle of 
 B. which D. took and unjustly detains, as it is said, and 
 afterwards thereupon cause him justly to be removed, that 
 we may hear no more clamour thereupon for want of jus- 
 tice, iffc. 
 
 A. B. complains against C. D. in a plea of taking and plaint. 
 unjustly detaining his cattle against sureties and pledges, 
 fc*7. , E. F. 
 
 Pledges to prosecute, ■< an d 
 
 Lg.h. 
 
 to wit. C. D. was summoned to answer unto Nj,T 
 
 Deciarario/:. 
 
 A. B. of a plea : wherefore the said C. D. took the goods 
 and chattels [or cattle] of the said A. B. and unjustly de- 
 tained the same against sureties and pledges, until, &c. , 
 and thereupon the said A. B. by E. F. his attorney, com- 
 plains that the said C. D, on the day of in the yea
 
 584 Precedents in Replevin. 
 
 of our Lord at the parish of in the county 
 
 of in a certain dwelling-house there [or place there] 
 
 called took the goods and chattels [or cattle]: to wit, 
 
 there set out the goods, or cattle, as the case may be] and un- 
 justly detained the same against sureties and pledges un- 
 til, itfc. ; wherefore the said A. B. says that he is injured, 
 and hath sustained damage to the value of /. and 
 
 therefore he brings his suit, csV, 
 
 Trinity Term, 44 G. III. 
 No. II. C, D. -\ And the said C. D. by G. H. his attorney, 
 Pkao Mnetftt. ^ f comes and defends the wrong and injury, when, 
 
 A. B. ) &c. and says, that he did not take the said goods 
 and chattels [or cattle] in the said declaration mentioned, 
 or any part thereof, in manner and form a:, the said A. B. 
 hath above thereof complained against him ; and of this 
 he, the said C. D. puts himself upon the country, &c. 
 
 Trinity Term, 44 G. III. 
 No. in. c. D. -x And the said C. D. by G. H. his attorney, 
 
 Avowry and cog- i . 
 
 nizancc for rent i>. ? comes and defends the wrong and injury, when 
 11 G 2 c"w' U ^' ^' '^ c ' an ^ we ^ avows [or if a cognizance say, as 
 baiiiff of C. D. well acknowledges] the taking of the said 
 goods and chattels, in the said declaration mentioned in the 
 said dwelling-hou'-e, in which, &c. and justly, c c. ; be- 
 cause he says that the said A. B. for a long space of time, 
 to wit, for the space of next before and ending on 
 
 the day of in the year of our Lord and 
 
 from thence, until, and at the said time, when, &c. held 
 and enjoyed the said dwelling-house, in which, &c. with 
 the appurtenances a3 tenant thereof to him, the said C. D. 
 by virtue of a certain demise thereof to him, the said 
 C. D. theretofore made up, and under the yearly rent of 
 
 I., payable quarterly, on the day of 
 
 the day of the day of and the 
 
 day of in every year, by even and equal portions ; 
 
 and because /. of the rent aforesaid, for the said 
 
 space of ending as aforesaid on the said day 
 
 of in the year aforesaid, and from thence until, and 
 
 at the said time, when, oV. were due and in arrear from 
 the s id A B. to the said C. D. he the said C. D. well 
 avows \_or as bailiff of the said well acknowledges] 
 
 the taking of the said goods and chattels, in the said 
 dwelling-house, in which, &c. and justly, fcrY. as for 
 and in the name of a distress for the said rent so due and
 
 Precedents in Replevin. 585 
 
 in arrear as aforesaid, and which said rent still remains 
 due and in arrear to him the said C. D. (or to the said 
 G. H.) and this he, the said C. D. is ready to verify. 
 Wherefore he prays judgment and a return of the goods 
 and chattels, together with his damages, life, according 
 to the form of the statute in such case made and pro- 
 vided, to be adjudged to him, iffc. 
 
 And the said A. B. savs, that the said C. D. by reason No. IV. 
 
 r ,.....''. . , Pica in bar, r.« 
 
 or any thing in his said avowry [or cognizance j above Unu \t. 
 alleged ought not to avow [or ackno ledge j the taking of 
 the said goods and chattels, in the said dwelling-house, in 
 which, Iffc. and justly, -c. Because he says, that the 
 said A. B. did not hold and enjoy the said dwelling-house 
 in which, life, as tenant thereof to the said C. D. in 
 manner and form as the said C. D. hath above in his said 
 avowry Tor cognizance] in that behalf alleged, and this 
 he the said j-i. B. prays may be inquired of by the coun- 
 try, life. 
 
 Because he says, that no part of the said rent in the No. V. 
 said avowry [or cognizance] mentioned at the said time, rent a in ' arK2 ' r> " * 
 when, life, was due, or in arrear, to the said C. D. in 
 manner and form as the said C. D. has above in his said 
 avowry [or cognizance] in that behalf alleged ; and this 
 he prays may be inquired of by the country, life. 
 
 C. D. -\ And the said C. D. by G. H. his attorney, No. vr. 
 v. )- comes and defends the wrong and injury, when, AvCAV '>' ( 
 
 ( o J J ' ' n;a»; tea: ant. 
 
 A. B.J ~dc. and well avows the taking of the said cattle 
 in the said place, in which, life, and justly, life, because 
 he says, that the said place now is, and at the said time 
 when, oc was the soil and freehold of him, the said 
 C. D. and because the said cattle, at the same time when, 
 life, were wrongfully in the said place, in which, life, eating 
 up and depasturing the grass there then growing, and do- 
 ing damage there to the said C. D. he the said C. D. well 
 avows the taking of the said cattle in the said declaration 
 mentioned, in the said place, in which, life, and justly 
 life, so there doing damage as aforesaid, as for and in the 
 name of a distress for the said damage so there done and 
 doing, and this he the said C. D. is ready to verify. Where- 
 fore he prays judgment and a return of the said cattle, to- 
 gether with his damages, SsV. according to the form of the
 
 5 85 Precedents in Replevin. 
 
 statute in such case made and provided, to be adjudged to 
 him, lSc. 
 
 N.J.VH. to wit. C. D. puts in his place G. H. his attorney, 
 
 Tud.;ilicnt of von , 1 • r /i t> • 1 r i • i i J 
 
 «rox for «ant of at tne sult °* ^' •"• m a P* ea °* taking and unjustiy ae- 
 ii deckraticn. taming the goods and chattels of the said A. B. against 
 sureties and pledges, csV. 
 
 to wit. C. j). was summoned to answer A. 3. of 
 
 a plea, wherefore he took, <Ac. [the goods mentioned in the 
 plaint'} of the said A. B. and unjustly detained them against 
 sureties and pledges, iffc. And hereupon the said C. D. 
 in his proper person, offers himself on the fourth day, 
 against the said A. B. in the plea aforesaid ; but the said 
 A. B. although solemnly called, comes not, but makes de- 
 fault, nor does he further prosecute his writ against the 
 judrmem s'^n- said CD. Therefore it is considered, that the said 
 * d > ■ s - 1 A. B. take nothing by his said writ, but that he and his 
 
 pledges to prosecute be in mercy, isfc. and that the sa:d 
 C. D, do go thereof without day, cs'c. and that he have 
 a return of the said goods and chattels, &c. : It is also 
 considered by the Court here, that the said C. D. do re- 
 cover against the said A. B. I. for his costs and 
 charges by him laid out, about his defence in this behalf, 
 by the said Court here adjudged to' the said C. D. and 
 with his assent, according to the form of the statute in 
 such case made and provided : and that the said C. D. have 
 execution thereof, cTc. 
 
 y.o. V!!l. to wit. A. B. puts in his place E. F. his attor- 
 
 ney, against C. D. in a plea of taking and unjustly de- 
 taining the goods and chattels of the said A. B. against 
 sureties and pledges, Z*fc. 
 
 to wit. The said C. D. puts in his place G H. 
 
 his attorney, at the suit of the said A. B. in the plea afore- 
 said. 
 
 to wit. C D. was summoned to answer unto 
 
 A. B. of a plea, csV. [here copy the declaration and cog- 
 nizance, and proceed as follows :~] and upon this the szid 
 C. D. prays that the said A. B. may plead in bar of the said 
 cognizance: and thereupon a day is given to the said A. B. 
 before our Lord the King, until wheresoever our 
 
 said Lord the King shall then be in England, that is to 
 say, for him the said A. B. to plead in bar of the said 
 cognizance, lsc. The same day is given to the said C. ]). 
 there, isfc. At which day, before our said Lord the King 
 
 leforwsn
 
 Precedents in Replevin. 587 
 
 at Westminster •, comes the said C. D. by his attorney afore- 
 said, and offers himself against the said A. B. in the plea 
 aforesaid; but the said A. B. although solemnly called, 
 comes not, but makes default, nor hath he pleaded in bar 
 of the said cognizance, nor does he further prosecute his 
 writ against trie said C. D. : therefore it is considered, 
 &c. fas in the last\ 
 
 George the Third, &V. to the sheriff of greeting: ... . 1 ' ,0 ; !X- 
 
 o » o o Writ oJ inquiry 
 
 whereas C. D. was summoned to appear in our Court on the stat. 17 
 before us, on wheresoever we then should be in u .' inp ' a ij^^x 
 
 England^ to answer unto A B. of a plea wherefore he for want of a de- 
 
 . deration. 
 
 took the goods and chattels of the said A. B. and unjustly 
 detained the same, against sureties and pledges, until, or. 
 And the said C. D. offered himself in our said Court be- 
 fore us, on the fourth day, against the said A. B. in the 
 plea aforesaid, and the said A. B. although solemnly called, 
 came not, but made default; therefore it was considered 
 by the same Court, that the said A. B. and his pledges to 
 prosecute should be in mercy, &c. And the said C. D. 
 offered himself in our said Court before us, on the fourth 
 day, against the said A. B. in the plea aforesaid, and the 
 said A. B. although solemnly called, came not, but made 
 default : therefore it was considered by the same Court, 
 that the said A. B. and his pledges to prosecute should 
 be in mercy, &c. and that the said C. D. should go there- 
 of without day, &c. and have a return of the said goods 
 and chattels ; and thereupon it hath been suggested in 
 our said Court before us, by the said C. D. that he the said 
 C. D. took the said goods and chattels of the said A. B. 
 *s aforesaid, at in the said county, in a certain mes- 
 
 suage or dwelling-house there, and that he took the same 
 as bailiff of E. F. for that the said A. B. for the space of 
 one year, next before and ending on the day of 
 
 in the year of our Lord and from thence until and 
 
 at the time of taking the said goods and chattels, held and 
 enjoyed the said messuage or dwelling-house and premises, 
 with the appurtenances., amongst other things, as tenant 
 thereof to the said E. F. at and under the yearly rent of 
 
 /. And because /. of the rent aforesaid, for 
 
 ending as aforesaid, on the said, &c. and from thence un- 
 til and at the time cf taking the said goods and chattels, 
 were due and in arrear from the said A. B. to the said 
 E. F. he the said C. D. as bailiff to the said E. F. took the 
 said goods and cfrattels 3 as for and in the name of a dis*
 
 ^38 Precedents in Replevin. 
 
 tress for the said rent, so due in arrear from the said A. B. 
 to the said E. F. as aforesaid \ and the said C D. accord- 
 ing to the form of the statute in such case made and pro- 
 vided, prayed our writ to be directed to you, to inquire 
 of the arrears of the rent aforesaid, and of the value of 
 trie said goods and chattels, and ir was granted to him, 
 tvV. as by the record and proceedings thereof, still re- 
 maining In cur said Court before us, at Westminster afore- 
 said, fuliy appears : therefore we command you, that ac- 
 cording to the form of the statute aforesaid, you diligently 
 inquire by the oath of twelve good and lawful men of your 
 bailiwick, how much of the yearly rent aforesaid, at the 
 time of taking and distraining the said goods and chattels, 
 was in arrear and unpaid, and how much the said goods, 
 and chattels so as aforesaid taken and distrained were 
 worth, according to the true value of the same, and the 
 inquisition which you shall thereupon take, make appear 
 to us on wheresoever we shall then be in Engla»d„ 
 
 under your seal and the seals of those by whose oath you 
 shall take the said inquisition •, and have there the names 
 of them by whose oath you shall take the said inquisition, 
 and this writ. 
 
 Vv itness, Edward, Lord Elknhrougk, effr. 
 
 N». x. George the Third, &c. to the sheriff of greeting : 
 
 " • ue ^f' whereas C. D. lately in our Court before us at Westmins- 
 
 ?. ."m-.rt tor J 
 
 •va .u jf a vltiin rVr, was summoned to answer A. 3. of a plea wherefore 
 he took the goods and chattels of the said A. B. and un- 
 justly detained them against sureties and pledges, c5Y. 
 whereupon the said A. B. by his attorney, complained that 
 said C, D. theretofore, to wit, on, £sV. at, £sV. in your 
 county, in a certain place there, called had seised 
 
 and taken the goods and chattels of the said A. B. to wit, 
 T set cut the goods mentioned in the declaration'] and unjustly 
 detained the same against sureties and pledges, until, oc, 
 And the said C. D. appearing in our said Court before us, 
 at Westminster aforesaid, by his attorney, well avowed 
 
 the taking of the said goods and chattels, isfc. [here recite 
 the whole of the avowry, and proceed as follows :~] And such 
 proceedings were thereupon had in our said Court before 
 us, at Westminster aforesaid, that it was afterwards con- 
 sidered in the same Court, that the said A. B, should take 
 nothing by his writ aforesaid, but that he and his pledges 
 to prosecute should be in mercy, &c. and that the said 
 C ./). should go thereof without day, Uc. and have a rc»
 
 Precedents in Replevin. 589 
 
 turn of the said goods and chattels ; and thereupon the 
 said C. D. according to the form of the statute in such 
 case made and 'provided, prayed our writ, SsV. [as in the 
 
 lusty to the end. J 
 
 \_As in No. 8, to the end cf the judgment for a return, and 
 then as follows:'] 
 
 And hereupon the said C. D. according to the form of The |^ e ^ thc 
 she statute in such case made and provided, prays the writ s at. 17 C. 2. c. 
 of our said Lord the King, to he directed to the sheriff 
 
 of to inquire of the arrears of the rent aforesaid, 
 
 2nd of the value of the said goods and chattels : and it is 
 granted to him, <jfc. Therefore it is commanded to the 
 said sheriff of according to the form of thc statute 
 
 aforesaid, that he diligently inquire, by the oath ci twelve 
 good and lawful men of his bailiwick, how much of t::e 
 yearly renc aforesaid, at the time of taking and distraining 
 the said goods and chattels, was in arrear and unpaid, and 
 how much the said poods and chattels 30 as aforesaid taken 
 
 CI 
 
 and distrained, were worth according to the value of the 
 same; and that the inquisition which the said sheriiT shall 
 thereupon take, he make appear to our said Lord the 
 King, on wheresoever our said Lord the King shall 
 
 then be in England, under hi;; seal and the seals of those 
 by whose oath he shall take the said inquisition ; together 
 with thc writ cf our said Lord the Kins to him thereunon 
 directed: the same day is given lo the said C. ]). life. At 
 which dav before cur said. Lord the King at Wesimhiitcr y 
 comes the said C, J), by his attorney aforesaid, and the she- 
 riff of to v, it now at in the said county, on 
 the day of in the year of the 
 reign of our said Lord thc King, by the oath of twelve 
 good and lawtul men of his county; whereby it appears, 
 that the sum of of the said yearly rent was in ar- 
 rear and unpaid, and due and owing from the said A. B. 
 to the said C. .[>. at the time in thc said cognizance men- 
 
 o 
 
 tioned, and of the distress taken ; and that the goods and 
 chattels distrained were worth according to the value 
 thereof the sum of /. Therefore it is considered 
 
 that the said C. D. do recover against the said A. B. the 
 said sum of /. being the arrearages of the said rent, 
 
 by the said inquisition in form aforesaid found, and also 
 /. by the Court of our said Lord the King now here 
 adjudged to the said C. D. and at his request, for his costs 
 2nd charges by him about Ins suit in this behalf sustained, 
 
 4
 
 on a --'.•; pre, 
 for w.intcf a de 
 
 $90 Precedent* in Replevin. 
 
 according to the form of the statute in such case made 
 and provided; which said arrearages, costs and charges, 
 in the whole amount to /. and that the said C. D. 
 
 Ana execution, have execution thereof, &c. 
 
 No. xit. Therefore it is considered, that the s- id C. 7). do re- 
 
 The like where . , 
 
 the goods are cover against the said A. B. the said /. parcel of the 
 
 found r 9 ■. .1 r ent aforesaid, by the said inquisition in form aforesaid 
 
 i»is v,iije than ; n 
 
 therent. found, and his damages by reason of the premises to /. 
 
 by the Court of our said Lord the King now here ad- 
 judged to the said C. D. and at his request, for his costs 
 and charges by him in this behalf sustained, according to 
 the form of the statute in such case made and provided ;- 
 which said value, costs and charges, in the whole, amount 
 Execution. to /. And that the said C. D. have execution there- 
 
 of, EsV. 
 
 No. xn. George the Third, &c. to the sheriff of greeting : 
 
 Fitr.rn habtnia , 1 t • /-« l r 
 
 whereas C. 7), was summoned to be in our Court berore 
 us, to answer A. B. of a plea wherefore he took the cat- 
 tle, goods and chattels, of the said A. B. and unjustly de- 
 tained them against sureties and pledges, as it is said: and 
 die said A. B. afterwards in cur same Court before us 
 made default ; wherefore it was considered in our same 
 Court, that he and Ins pledges to prosecute should be in 
 mercy, &c. and that the said C. I), should go thereof 
 without day, Zffc. and that he should have a return of the 
 said cattle, goods and chattels : therefore we command 
 you, that without delay you cause the said cattle, goods 
 and chattels, to be returned to the said C, 1). and that 
 vou do not deliver them on the complaint of the said A. B. 
 without our writ, which make express mention of the 
 judgment aforesaid ; and in what manner you shall exe- 
 cute this our writ, make appear to us on whereso- 
 ever we shall then be in England i and have there this 
 writ. Witness, life. 
 E -.try thereof. tQ tQ w j t< £ r». by his attorney offered him- 
 self on the fourth day against A. B. of a plea wherefore 
 l;e the said C. D. took the cattle, goods and chattels, of the 
 said A. B. and unjustly detained them against sureties and 
 pledges, is'c. and the said A. B. being solemnly called, 
 came not : and was the plaintiff, C5V. : therefore it is con- 
 sidered, that he and his pledges to prosecute be thereupon 
 in mercy, &c. and that the said C. D- go thereof with- 
 out day, Ifc. and that he have a return of the said cat-
 
 Precedents in Replevin. 59^ 
 
 rle, goods and chattels, iffc. and let the names of the 
 pledges be inquired, £sV. and in what manner, &c. let. 
 the sheriff make appear to our Lord the King-, on 
 wheresoever, $5c. 
 
 George the Third, l£c. to the sheriff of greeting : No. XIV. 
 
 whereas L. D. was summoned to be m cur Court bete re ro , :brosA ~ ox ..,- ,,-_ 
 us, to answer A. B, in a plea wherefore the said C. D. en of a plea inb. - 
 the day of in the year of our Lord at 
 
 the parish of in the county of in a certain 
 
 place there called took the cattle, goods and chaN 
 
 tels, of him the said A. B. to wit, &c. [here set out the 
 ca tie and goods as in the declaration] and unjustly detained 
 the same against sureties and pledges, until, cirV. as it was 
 said: and the said C. D. appearing in our said Court be- 
 fore us, for Certain Causes by him alleged in our same 
 Court, as bailiff of E. F. well acknowledged the taking 
 of the said cattle, goods and chattels, in the said place in 
 which, <jfc. and unjustly, &c. for damage there done, 
 [or for certain arrears of rent, to wit, for the sum of /. 
 due and in arrear from the said A. B. to the said C. D. 
 lor the said place in which, izfe. with the appurtenances, 
 held and enjoyed under, and by virtue of, a certain demise 
 thereof, made by the said C. i). for the space of next 
 before and ending on the dav of in the year of 
 
 our Lord :] whereupon the said A. B. being after- 
 
 wards solemnly called in our said Court before us, came 
 not, nor did he further prosecute his writ aforesaid : 
 wherefore it was considered in our said Court before us, 
 at I I 'est minster ^ that the said A. B. should take nothing 
 by his writ aforesaid, but that he and his pledges to pro- 
 secute should be in mercy, C5V. and that the said C. D. 
 should go thereof without day, Isfc. and that he should 
 have a return of the said cattle, goods and chattels : there- 
 fore we command you, that without delay you cause the • 
 said cattle, goods and chattels, to be returned to the said 
 C. D. and that you do not deliver them on the complaint 
 of the said A. B. without our writ, which makes express 
 mention of the judgment aforesaid: and in what manner 
 you shall have executed this our writ, make appear to us, 
 on wheresoever, ts'c. and have there this writ, 
 
 Witness, Iz'c 
 
 George the Third, l±fc. to the sheriff of greeting : No. XV. 
 
 Whereas C. D. was summoned to be in our Court before W r:t of imj*;"' 
 
 of ..icitna:-..'
 
 ^92 Precedents in Ejectment, §c. 
 
 us, iSc. [as in the tat, to the end for a return, and then <z; 
 folhivs:~\ and also that the said C. D. ought to recover 
 against the said A. B. his damages on occasion of the 
 premises, according to the form of the statute in such 
 case made and provided. Therefore we command you, 
 that without delay you cause the said cuttle, goods and 
 chattels to be returned to the said C. D. csfc. [as in the 
 last, to " wheresoever, &c. •""} and also that by the oath 
 of honest and lawful men of your county, you diligently 
 inquire what damages the said C. D. hath sustained, as 
 well on occasion of the premises, as for his costs and 
 charges, by him about his suit in this behalf expended; and 
 the inquisition which you shall thereupon take, make ap- 
 pear to us at the aforesaid time, wheresoever, EsV. under 
 your seal and the seals of those by whose oath you shall 
 take that inquisition ; and have there the names of them 
 by whose oath you shall take that inquisition, and this writ. 
 Witness, zffc. 
 
 Proceedings in Ejectment. 
 No. i. riEORGE the Third, by the grace of God of the 
 
 Original writ. \J~ . . 
 
 united kingdom of Great Britain and Ireland, king, 
 
 defender of the faith, to the sheriff of greeting. If 
 
 A. B. shall give you security to prosecute his claim, then 
 put by gage and safe pledges C. D. late of yeoman, 
 
 so that he be before us on the morrow of All Souls, 
 wheresoever we shall then be in England, to shew where- 
 fore with force ar.d arms he entered into one messuage, 
 with the appurtenances, in which E. F, esquire hath 
 
 demised to the aforesaid A. B. for a term which is not yet 
 expired, and ejected him from his said farm, and other 
 enormities to him did, to the great damage of the said 
 A. B. and against our peace. And have you there the 
 names of the pledges, and this writ. Witness ourself at 
 Westminster, the day of in the year of our 
 
 reign. 
 
 Pledges to prosecute, ' ^ " " * 
 & i ' ( Richard Roe. 
 
 The within named C. D. < John Den, 
 
 is attached by pledges, ( Richard Fen.
 
 Precedents in Ejectment, S^c. 593 
 
 In the Kings Bench, 
 Easter Term, in the 44th year of the reign of George the 
 
 Third. 
 
 to wit, C. D. late cf yeoman, was attached No. ir. 
 
 to answer unto of plea wherefore the said C. D. with Dechir f on h 7 
 
 r or !n:i, -'I! a sm- 
 
 'lc GClli 
 
 force and arms, &c. entered into messuages, &C. 
 
 [here describing the premises'} with the appurtenances, situ- 
 ate and being in the parish of in the county of 
 which E. F. had demised to the said A. B. for a term 
 which is not yet expired ; and ejected him from his said 
 farm, and other wrongs to the said A. B. there did, to the 
 great damage of the said A. B. and against the peace of 
 our Lord the now King, &c. And thereupon the said 
 A. B. by his attorney, complains, that whereas the 
 said E. F. on the day of in the year of our 
 Lord at the parish aforesaid, in the county afore- 
 said, had demised the said tenements with their appurte- 
 nances to the said A. B. to have and to hold the same un- 
 to the said A. B. and his assigns, from the day of 
 the said month of for and during, and to the full 
 end and term of seven years, from thence next ensuing, 
 and fully to be complete and ended. By virtue of which 
 demise, the said A. B. entered into the said tenements 
 with the appurtenances, and was thereof possessed for 
 the said term so to him thereof demised, and the said 
 A. B. being so thereof possessed, the said C. D. after- 
 wards, to wit, on the day of in the year afore- 
 said, with force and arms, &c. entered into the said te- 
 nements with the appurtenances, which the said E. F. 
 had demised to the said A. B. in manner and for the term 
 aforesaid, which is not yet expired ; and ejected the said 
 A. B. from his said farm, and other wrongs to the said 
 A. B. then and there did, to the great damage of the said 
 A. B. and against the peace of our said Lord the now 
 King ; wherefore the said A. B. saith, that he is injured 
 and hath sustained damage to the value of /. and 
 therefore he brings his suit, &c. 
 
 Mr. 
 
 I am Informed that you are in possession of, or Notice to ap- 
 claim title, to the premises in this declaration of eject- P e ^" 
 ment mentioned, or to some part thereof. And I being 
 sued in this action as a casual ejector only, and having no 
 claim or title to the same, do advise you to appear on the 
 
 0.9
 
 594 Precedents in Ejectment, §c. 
 
 first clay of next Trinity term [in town or in the country, 
 « in next Trinity Term"'], in his Majesty s Court of Kings 
 Bench, wheresoever his said Majesty shall then be in Eng- 
 land, by some attorney of that Court, and then and there 
 by rule of the same Court to cause yourself to be made 
 defendant in my stead. Otherwise I shall suffer judgment 
 therein to be entered against me by default, and you will 
 be turned out of possession. 
 
 Yours, Sec. 
 
 CD. 
 
 No. in. SSt ^ 2?. complains of C. D. being in the cus- 
 
 Declaration by ° 
 
 bill. tody of the marshal of the Alanhalsea of our Sovereign 
 
 Lord the Kiiag himself, for that whereas E. F. on the 
 day of in the year of the reign of our Lord 
 the now King, at in the county of had demised, 
 
 to the said A.B. messuages, &c. [reciting the several par- 
 cels'] with the appurtenances, situate, lying and being, in 
 the parish of in the said county of to have and to 
 
 hold the said tenements, with the appurtenances, to the 
 said A. and his assigns, from the day of then last 
 
 past, to the full end and term of five years from thence 
 next ensuing, and fully to be complete and ended ; by vir- 
 tue of which said demise, he the said A. entered into the 
 said tenements, with the appurtenances, and was thereof 
 possessed until the said C. afterwards, that is to say, on 
 the day of in the year aforesaid, with 
 
 force and arms, EsV. entered into the said tenements with 
 the appurtenances which the said E. F. had demised to 
 the said A. in manner aforesaid, for the term aforesaid, 
 which is not yet expired, and ejected the said A. out of 
 his said farm : and then and there did other wrongs to the 
 said A. against the peace of our said Lord the King, and to 
 the damage of him the said A. of twenty pounds, and 
 thereupon he brings his suit, &c. 
 
 -ni i ( John Doe, 
 
 Pledges to prosecute, \ J . 
 
 ( Richard Roe. 
 
 The notice to this declaration is the same as the last ; 
 
 only instead of the words, " wheresoever, &c." must be 
 
 substituted " at Westminster." 
 
 In the King's Bench. 
 
 Easter Term, 44//^ Geo. III. 
 
 Nn. IV. to wit. C. D. late of yeoman, was at- 
 
 ginaion a'd.u- tached to answer unto A. B. of a plea wherefore the 
 hie demise, wuh sa ^ q % j) % w ^ t ^ f orc c and arms, ifc. entered into 
 
 one ouster. 
 
 8
 
 Precedents in Ejectment, &;c. 59$ 
 
 messuages, iffc. {describing the premises'] with the appur- 
 tenances, situate and being in the parish of in the 
 county of which E. F. had demised to the said A. 
 B. for a term which is not yet expired and ejected him 
 from his said farm. And also, wherefore the said C. D. 
 with force and arms, &c, entered into other mes- 
 suages, tsfc. with the appurtenances, situate and being 
 in the parish aforesaid, in the county aforesaid, which 
 G. H. had demised to the said A. B. for a term which 
 is not yet expired, and ejected him from his said last 
 mentioned farm, and other wrongs to the said A. B. and 
 against the peace of our Lord the now King, SsV. And 
 thereupon the said A. B. by his attorney complains, that 
 whereas the said E. F. on the day of in the 
 year of our Lord at the parish aforesaid, in the 
 county aforesaid, had demised the said tenements first 
 above mentioned, with the appurtenances, to the said 
 A. B. to have and to hold the same unto the said A. B. 
 and his assigns, from the day of the said month 
 of for and during and unto the full end and term 
 of seven years, from thence next ensuing, and fully to 
 be completed and ended. And also, that whereas the 
 said G. H. on the day of in the year of our 
 Lord at the parish aforesaid, in the county afore- 
 said, had demised the said tenements secondly above- 
 mentioned, with the appurtenances, to the said A. B. to 
 have and to hold the same unto the said A. B. and his 
 assigns, from the day of the said month of 
 for and during, and unto the full end and term of seven 
 years from thence next ensuing, and fully to be complete 
 and ended ; by virtue of which said several demises, the 
 said A. B. entered into the said tenements first and 
 secondly above-mentioned, with the appurtenances, and 
 was thereof possessed for the said several terms so to him 
 thereof demised, and being so thereof possessed, the 
 said C. D. afterwards, to wit, on the day of 
 in the vear aforesaid, with force and arms, &c. entered 
 into the said tenements first and secondly above-men- 
 tioned, with the appurtenances, which he the said E. F. 
 and G. H. had so respectively demised to the said A. B. 
 in manner, and for the several terms aforesaid, which 
 are not expired; and ejected the said A. B. from his 
 several farms, and other wrongs to the said A. B. then 
 and there did, to the great damage of the said A. B. 
 s^nd against the peace of our said Lord the now
 
 two ousteis. 
 
 596 Precedents in Ejectment, $$c. 
 
 King; wherefore the said A. B. saith, that he is injured 
 and hath sustained damage to the value of /. and 
 
 therefore he brings his suit, Iffc. 
 
 Notice as before. 
 
 In the Kings Bench, 
 N 0< v Easter Term, 44th Geo. III. 
 
 The like with . t0 yr ] t f p ]. ite f veoman, was at- 
 
 t-WA .Mid Ml .- * 
 
 tached to answer unto A. B. of a plea wherefore the 
 said C. D. with force and arms, (ffc. entered into 
 messuages, &c, [describing the premises'] with the appur- 
 tenances, situate and being in the parish of in the 
 county of which E. F. had demised to the said A. 
 
 B. for a term which is not yet expired ; and ejected him 
 from his said farm. And also, wherefore the said 
 
 C. D. with force and arms, &c. entered into other mes- 
 suages, tffc. with the appurtenances, situate and being 
 in the parish aforesaid, in the county aforesaid, which 
 G. J J. had demised to the said A. B. for a term which 
 is not yet expired; and ejected him from his said last 
 mentioned farm, and other wrongs to the said A. B, 
 then did, to the great damage of the said A. B. and 
 against the peace of our Lord the now King, &c. And 
 thereupon the said A. B. by his attorney com- 
 plains, the said E. F. on the day of in the 
 year of our Lord at the parish aforesaid, in the 
 county aforesaid, had demised the said ienements first 
 above-mentioned, with the appurtenances, to the said 
 A. B. to have and to hold the same unto the said A. B. 
 and his assigns, from the day of then last 
 past, for and during, and unto the full end and term of 
 
 years, from thence next ensuing, and fully to be 
 complete and ended. By virtue of which said demise 
 the said A. B. entered into the said tenements with the 
 appurtenances first above-mentioned, and became, and 
 was thereof possessed, for the said term so to him there- 
 of granted; and the said A. B. being so thereof pos- 
 sessed, the said C. D. afterwards [to wit.] on the 
 day of in the year aforesaid, with force and arms, &rV, 
 entered into the said tenements with the appurtenances 
 first above-mentioned, which the said E. F. had demised 
 to the said A. B. in manner, and for the term aforesaid, 
 which is not expired ; and ejected the said A. B. from 
 his said first mentioned farm. Aud also, that whereas the 
 said G. H. on the day of in the year afore- 
 
 6
 
 Precedents in Ejectment, §c. 597 
 
 saidj at the parish aforesaid, in the county aforesaid, 
 had demised the said tenements with the appurtenances 
 secondly above-mentioned, to the said A. B. to have 
 and to hold the same, unto the said A. B. and his as- 
 signs, from the day of then last past, for 
 and during, and unto the full end and term of seven 
 years, from thence next ensuing, and fully to be com- 
 plete and ended. By virtue of which said last-mentioned 
 demise, the said A. B. entered into the tenements with 
 the appurtenances secondly above-mentioned, &c. and 
 became, and was thereof possessed, for the said term so 
 to him thereof granted ; and the said A. B. being so 
 thereof possessed, the said C. D. afterwards, [to wit.j 
 on the said day of in the year aforesaid, 
 with force and arms, &c. entered into the said tene- 
 ments with the appurtenances secondly above-mentioned, 
 which the said G. H. had so demised to the said A. B. 
 in manner, and for the term last aforesaid, which is not: 
 yet expired, and ejected the said A. B. from his said 
 last-mentioned farm, and other wrongs to the said A. B. 
 then and there did, to the great damage of the said A. B. 
 and against the peace of our said Lord the now King. 
 Wherefore, the said A. B. saith that he is injured, and 
 hath sustained damage to the value of /. and there- 
 fore he brings his suit, &c. 
 
 Notice as before. 
 
 In the King's Bench. 
 
 (A. B. on demise of E. F. plaintiff, No - V[ - 
 
 \ . Affidavit of 
 
 Between < and service of de- 
 
 ic.D. - - defendant. daratior, «!»:■« 
 
 >• there is but one 
 
 S. S. of, &c. maketh oath, and saith, that he this tenant. 
 deponent did, on the day of last, 
 
 deliver a true copy of the declaration and notice here- 
 unto annexed, to IV. T. tenant in possession of the pre- 
 mises in the said declaration mentioned; and at the same 
 time, told him it was a declaration in ejectment, and 
 that unless he did appear thereunto, by some attorney of 
 this Honourable Court, on the first day of the present 
 Term, judgment would be entered against the said 
 defendant by default, and the said W. T. would be 
 turned out of possession; [or words to that or the like 
 effect.] 
 
 Sworn &c* S. S,
 
 598 Precedents in Ejectment, &;c. 
 
 No. VII. 5 # & f {c? Ct ma keth oath and saith, that he this de- 
 
 Similar affid-.vit, . , 
 
 where there are ponent did on, &c. last, deliver a true copy of the de- 
 several tenants. c i arat i on anc { notice hereunto annexed, to W. T. tenant 
 in possession of part of the premises in the said declara- 
 tion mentioned ; and did also, on the same day, deliver 
 another copy of the said declaration and notice to D. the 
 wife of I. T. tenant in possession, of the residue of the 
 premises in the said declaration mentioned, she the said 
 D. then being thereon. And this deponent further saith, 
 that he told them severally that it was a declaration in 
 ejectment, and that unless they did severally appear 
 thereto, by some attorney of this Honourable Court, on 
 the first day of this present term, judg- 
 
 ment would be entered against the said defendant by de- 
 fault, and they the said W. T. and I. T. would be 
 severally turned out of possession; [or words to that or 
 the like effect.] 
 
 Sworn, E5V. S. S, 
 
 A. on a demise of F. against C 
 
 No. A in. Unless the tenant in possession of the premises in 
 
 .Rule ior judg- i m l 
 
 question shall appear and plead to issue on Tuesday next 
 after, l2fc. .time tenant is to appear in) LET judgment be 
 entered for the plaintiff against the now defendant C. by 
 default upon the motion of Mr. D. 
 
 By the Court. 
 
 Note. If plaintiff does not move for judgment the 
 same Term tenant had notice to appear, the court will not 
 grant such rule. 
 
 Note. When you move for a rule for judgment you 
 annex the affidavit of service to a copy of the declaration 
 stamped, and give it to counsel with iox. 6d. fee to 
 move. The clerk of the rules files the affidavit and 
 declaration on such motion, therefore keep by you ano- 
 ther copy on stamp, or if judgment go against the 
 casual ejector for want of tenant's entering into the rule, 
 you must have an office copy of the declaration from 
 the clerk of the rules in order to enable you to sign 
 judgment. 
 
 ment.
 
 Precedents in Ejectment, 8>d 599 
 
 The Common Rule of Court. 
 
 Hilary Term, the twenty-ninth year of King George the 
 Second. 
 
 Berkshire to wit. It is ordered by the Court, by the Smith v. sales, 
 assent of both parties, and their attornies, that George [" 1 r a ° n ^^" a " 
 Saunders, gentleman, may be made defendant in the punenances in 
 place of the now defendant William Stiles, and shall im- dem j se ' f j / jn 
 mediately appear to the plaintiff's action, and shall Rogers. 
 receive a declaration in a plea of trespass and ejectment 
 of the tenements in question, and shall immediately 
 plead thereto, not guilty; and, upon the trial of the 
 issue, shall confess lease, entry, and ouster, and insist 
 upon his title only. And if, upon trial of the issue, the 
 said George do not confess lease, entry, and ouster, and 
 by reason thereof the plaintiff cannot prosecute his writ, 
 then the taxation of costs upon such non-pros, shall cease, 
 and the said George shall pay such costs to the plaintiff, 
 as by the Court of our Lord the King here shall be taxed 
 and adjudged for such his default in non-performance of 
 this rule; and judgment shall be entered againt the said 
 William Stiles, now the casual ejector, by default. And 
 it is further ordered, that, if upon trial of the said issue 
 a verdict shall be given for the defendant, or if the 
 plaintiff shall not prosecute his writ, upon any other 
 cause than for the not confessing lease, entry, and ouster, 
 as aforesaid, then the lessor of the plaintiff shall pay 
 Costs, if the plaintiff himself doth not pay them. 
 
 By the Court. 
 
 When the proceedings are by bill, and not by original, 
 the words " and file common hair should be inserted after 
 the words requiring the tenant's appearance; and the 
 word bill should stand in the room of the word writ, 
 throughout. 
 
 A. on the demise of F. against C. 
 
 K. B. 
 
 ^ IR > No. X. 
 
 Take notice that I defend a title for a messuage and A notice of the 
 
 premises the 
 
 garden, with the appurtenances, in the parish of defendant de- 
 
 in the county of now in possession of the fends iox -
 
 with a tL/ni 
 daitina. 
 
 600 Precedents in Ejectment, fyc. 
 
 said /. F. or his under-tenant. Lated the 
 day of 1804. 
 
 To Mr. R. P. i Yours, cSV. 
 
 the plaintiff's attorney, P. P. 
 
 These. defendant's attorney. 
 
 No. XI. As vet of term, &c. to wit. John Dos 
 
 Judgment by .... ' . _ ,. 
 
 >;•: .v.: i v ;>i!i, on the demise or A. B. puts in his place h. r. his 
 attorney, against Richard Roc, in a plea of trespass and 
 ejectment. 
 
 to wit the said Richard Roe in person, at the suit 
 
 of the said John Dec, in the plea aforesaid. 
 
 to wit. Be it remembered, that in 
 
 Term last past, before our Lord the King at Westminster, 
 came John Doe by E. F. his attorney, and brought into 
 the Court of our said Lord the King himself then there, 
 his certain bill against Richard Roc, being in the custody 
 of the marshal of the marshalsea of our said Lord the 
 King before the King himself of a plea of trespass and 
 ejectment: and there are pledges for the prosecution 
 thereof, to wit, John Dcnn, and Richard Fenn; which 
 said bill follows in these words; that is to say : John Doe 
 complains of Richard Roe being in the custody, &c. (here 
 copy the declaration to the end, omitting the pledges and notice ; 
 aud then proceed on a new line as follows:) 
 
 And now at this day, that is to say, on next 
 
 after in tins same Term, until which day the 
 
 said Richard Roe had leave to imparl to the said bill, and 
 then to answer the same, cfr. before our said Lord the 
 King at Westminster, come as well the said John Doe by 
 his attorney aforesaid, as the said Richard Roe in his 
 proper person ; and the said Richard Roe defends the 
 force and injury when, iffc. and says nothing in bar or 
 preclusion of the said John Doe; whereby the said John 
 Roc remains therein undefended against the said Richard 
 Roe, therefore it is considered that the said John Doe 
 recover against the said Richard Roe his said term yet 
 to come of and in the tenements aforesaid with the ap- 
 purtenances, and also his damages sustained by reason of 
 the trespass and ejectment aforesaid ; and hereupon the 
 said John Doe freely here in Court remits to the said 
 Richard Roe t all such damages costs and charges as 
 might or ought to be adjudged to him the said John Doe y 
 by reason of the trespass and ejectment aforesaid : There-
 
 Precedents in Ejectment, <%c. 601 
 
 fore let the said Richard Roe be acquitted of those 
 damages, costs and charges, &c. And hereupon the said 
 John Doe prays the writ of our said Lord the King to be 
 directed to the sheriff of the county aforesaid, to cause him 
 to have possession of his said term yet to come of and in 
 the tenements aforesaid with the appurtenances: and it is 
 granted m him, returnable before our said Lord the King 
 at WeJminster on next after ; the same day- 
 
 is given to the said Richard Doe there, &c. 
 
 (Entry of warrants of attorney, as in the last.) 
 to wit. Richard Roe was attached, CSV. [here 
 
 copy the declaration to the end, and then proceed as follows:'] 
 
 And the said Richard Rse in his proper person, comes 
 and defends the force and injury when, C5V. and says 
 nothing in bar or preclusion, £sV. [as before, making the 
 •writ of possession returnable on a general return day~\. 
 
 [To the end of the issue, and then as follows:'] 
 At which day, before our said Lord the King at West- Judgment with 
 minster, come the parties aforesaid, by their attornies panTf'thed*. 
 aforesaid •, and hereupon the said C. D. relinquishing his ma S es « 
 said plea by him above pleaded, says that he cannot deny 
 the action of the said A. B. nor but that he the said C. D. 
 is guilty of the trespass and ejectment above laid to his 
 charge, in manner and form as the said A. B. hath above 
 thereof complained against him; and heconfesses and admits 
 that the said A. B. hath sustained damages, by reason of 
 the said trespass and ejectment, to the sum of one penny, 
 besides his costs and charges, by him about this suit in 
 this behalf expended. And hereupon the said A. B. 
 freely here in court remits to the said C. D. the residue 
 of the damages in the said declaration mentioned, and 
 prays judgment and his term yet to come of and in the 
 tenements aforesaid with the appurtenances, together 
 with his said damages so confessed, and his costs and 
 charges aforesaid, to be adjudged to him, life. There- judgment 
 fore it is considered, that the said A. B. do recover w s ne <*» &«• 
 against the said C. D. his said term yet to come of and 
 in the tenements aforesaid with the appurtenances, toge- 
 ther with the damages aforesaid, to the sum of one 
 penny, in form aforesaid confessed, and also /. for 
 
 his said costs and charges, by the court of our said Lord 
 the King, now here adjudged to the said A. B. and 
 with his assent •, which said damages, costs* and charges
 
 No. XIII. 
 The like for 
 the plaintiff as 
 to part of the 
 premises, and 
 for the defend- 
 ant on a noli 
 prosequi as to 
 
 the residue. 
 
 602 Precedents in Ejectment, §c. 
 
 in the whole, amount to /. And hereupon the 
 
 said A. B. prays the writ of our said Lord the King, to 
 be directed to the sheriff of aforesaid, to cause 
 
 him to have possession of his said term yet to come, of 
 and in the tenements aforesaid, with the appurtenances; 
 and it is granted to him, returnable before our said Lord 
 the King, on wheresoever, &c. 
 
 [To the end of the issue, and then as follows :~] 
 At which day, before our said Lord the King at West- 
 minster, come the parties aforesaid, by their attornies 
 aforesaid ; and hereupon the said C. D. as to parcel 
 of the tenements in the said declaration mentioned, re- 
 linquishing his said plea, by him above pleaded, says, 
 that he cannot deny the action of the said John Doe, nor 
 but that he the said C. I), is guilty of the trespass and 
 ejectment above laid to his charge, in manner and form 
 as the said John Doe hath above thereof complained 
 against him . And upon this, the said John Doe says, 
 that he will not further prosecute his suit against the 
 said C. D. for the trespass and ejectment in the residue 
 of the tenements aforesaid ; and he prays judgment and 
 his term yet to come, of and in the said with the 
 
 appurtenances, parcel, &c. together with his damages, 
 costs and charges, by him in this behalf sustained : There- 
 fore it is considered, that the said John Doe, do recover 
 against the said C. 1). his said term yet to come, of and 
 in the said with the appurtenances, parcel, &c. 
 
 and also /. for his said damages, costs and charges, 
 
 by the Court of our said Lord the King now here ad- 
 judged, to the said John Doc, with his assent, and the 
 assent of the said C. J). And let the said C. D. be ac- 
 quitted of the said trespass and ejectment, in the residue 
 of the tenements aforesaid, and go thereof without day, 
 l£c. And the said 'John Doe prays the writ of our said 
 Lord the King to be directed to the sheriff of afore- 
 
 said, to cause him to have possession of his said term yet 
 to come, of and in the said with the appurte- 
 
 nances, parcel, &c. and it is granted to him, return- 
 able before our said Lord the King, on whatso- 
 ever, £sV. 
 Special verdict. Afterwards, that is to say, on the day and at the place 
 within contained, SsV. [as in a common postea, to the finding 
 of the jury, which varies according to facts of the case, and 
 concludes as follows .-] but whether or not upon the whole 
 
 Judgment 
 signed, &c.
 
 Precedents in Ejectment, 8$c. 603 
 
 matter aforesaid, by the jurors aforesaid in form aforesaid 
 found, the said C. D. is guilty of the trespass and eject- 
 ment within specified, the jurors aforesaid are altogether 
 ignorant ; and hereupon they pray the advice of the Court 
 of our said Lord the King, before the King himself •, and, 
 if upon the whole matter aforesaid, it shall seem to the 
 said Court, that the said C. D. is guilty of the trespass 
 and ejectment aforesaid, then the jurors aforesaid, upon 
 their oath aforesaid, say, that the said C. D. is guilty 
 thereof, in maner and form as the said John Doe hath 
 within thereof complained against him ; and in that case, 
 they assess the damages of the said John Doe, on occa- 
 sion of the trespass and ejectment aforesaid, besides his 
 costs and charges by him about his suit in that behalf ex- 
 pended, to /. and for those costs and charges to 
 s. But if upon the whole matter aforesaid, it 
 shall seem to the said Court, that the said C. D. is not 
 guilty of the trespass and ejectment aforesaid, then the 
 jurors aforesaid, upon their oath aforesaid say, that the 
 said C. D. is not guilty thereof, in manner and form as 
 he hath within in pleading alleged. And because, &c. 
 
 Therefore it is considered, that the said John Doe do re- No. XIV. 
 cover against the said C. D. his said term yet to come of par t is found for 
 and in the tenements aforesaid with the appurtenances, the plaintiff and 
 
 ,,..,, / i i ■ r -i r art f° r t' 16 tie * 
 
 and his said damages to /. by the jurors aforesaid fendant. 
 
 in form aforesaid assessed, and also /. for his said 
 
 costs and charges by the Court of our said Lord the King 
 now here adjudged of increase to the said A. B. and with 
 his assent, which said damages, costs and charges, in the 
 whole, amount to /. And let the said C. D. be 
 
 taken, SsV. And hereupon the said John Doe prays the 
 writ of our said Lord the King to be directed to the sheriff 
 of the county of aforesaid, to cause him to have 
 
 possession of his said term yet to come of and in the te- 
 nements aforesaid with the appurtenances ; and it is grant- 
 ed to him, returnable before our said Lord the King, on 
 wheresoever, &c. 
 George the Third, &c. To the sheriff of greet- „,, ^°: x 7- , 
 
 6 ...... . & The like for the 
 
 ting : therefore it is considered, that the said John Doe do plaintiff astopart 
 recover against the said C. D. his said term yet to come itdES 
 of and in the said parcel, &c. with the appurte- » s t0 the residue. 
 
 nances, and the damages, costs and charges, aforesaid, 
 by the jurors aforesaid, in form aforesaid assessed, and 
 also /. for his said costs and charges, by the 
 
 Court of our said Lord the King now here adjudged of in-
 
 60\ ' Precedents in Ejectment, fyc. 
 
 crease to the said John Doe, and with his assent ; which 
 said damages, costs and charges, in the whole, amount 
 to /. And let the said John Doe be amerced, for 
 
 his false claim against the said C. D. as to .he residue of 
 the tenements in the said declaration mentioned, whereof 
 the said C. D. is acquitted in form aforesaid : and the said 
 C. D. go thereof without day, izfe. and hereupon the said 
 John Doe prays the writ, ifje. (as in the last). 
 No. XVI. Whereas A. B. lately in our Court before us at West- 
 
 Habere facias . J . . . 
 
 possessionem. minster, by bill without our writ (or if by origin. J, by our 
 writ), and by the judgment of the same Court, recovered 
 against C. D. his term then and yet to come of and in 
 two dwelling-houses, Ef/V. ./is in the declaration in eject- 
 ment), with the appurtenances, situate, lying and being, 
 in the parish of in your county, which E, F. on the 
 
 day of in the year of our reign, had 
 
 demised to the said A B. to hold the same to the said 
 A. B. and his assigns, from the day of then 
 
 last past, for and during, and unto the full end and term 
 of years from thence next ensuing, and fully to be 
 
 complete and ended, by virtue of which said demise, the 
 said A. B. entered into the said tenement with the appur- 
 tenances, and was possessed thereof until the said C. D. 
 aftefwards, to wit, on the day of in the year 
 
 aforesaid, with force and arms, &c. entered into the said 
 tenements with the appurtenances, which the said E. F. 
 had demised to the said A. B. in manner and for the term 
 aforesaid, which was not then, nor is yet, expired, and 
 ejected the said A. B. from his said farm ; whereof the 
 said C. D. is convicted, as appears to us of record : there- 
 fore we command you that without delay you cause the 
 said A. B. to have the possession of his said term yet to 
 come of and in the tenements aforesaid with the appurte- 
 nances : and in what manner you shall have executed this 
 our writ, make appear to us at Westminster, on next 
 
 after and have there then this writ. Witness, 'dc. 
 
 Note : This writ must be engrossed on parchment. 
 Make a precipe for the office thus : 
 
 to wit. Writ of possession for A. B. on the de- 
 mise of E. F. against C. D. for a messuage, with the ap- 
 purtenances, situate at in the county of 
 Returnable [the return']. 
 R. R. attorney. 
 
 Note : Carry the writ and precipe to the officer who 
 signs the writs in this Court: pay him for signing th«
 
 Precedents in Ejectment, fyc. 605 
 
 same ij\ Sd. sealing at the seal office yd, the sheriff's war- 
 rant thereon 2s. 4^. his fee for executing the same is u. 
 in the pound, in the yearly value of the prenvses, if the 
 same does not exceed 100/. per annum, and 6d. in the 
 pound for every 20s. above, and 2s. returning the writ. Of- 
 ficer's fee executing writ usually 1/. is. 
 
 If the proceedings are by original, the writ of posses- 
 sion differs only from the above in the introductory part, 
 and in the return. It is signed by the filacer, and sealed 
 as the above writ. 
 
 George the Third, &c. To the sheriff of greet- ~,, N ?', XV 
 
 ° ' o T!i.' Lice on a 
 
 ing : whereas A. B. lately in our Court before us at JVest- double demise. 
 minster, by bill without our writ [or by original, by our 
 writ], and by the judgment of the said Court, recovered 
 against C. D. his term then and yet to come of and in 
 two dwelling-houses, Iz'c. [as in the declaration in ejectment] 
 with the appurtenances, situate, lying and being, in the 
 parish of in your county, which E. F. on the 
 
 day of in the year of our reign, had demised 
 
 to the said A. B. to hold the same to the said A. B. and 
 his assigns, from the day of in the 
 
 year aforesaid, for and during, and unto the full end and 
 term of years, from thence next ensuing, and fully 
 
 to be complete and ended ; and also his term then and yet 
 to come of and in two other dwelling-houses, isfc. with 
 the appurtenances, which G. H. on the day of 
 
 in the year aforesaid, had demised to the said A. B. 
 
 to hold the same to the said A. B. and his assigns, from 
 the day of in the year aforesaid, for 
 
 and during, and until the full end and term of years 
 
 from thence next ensuing, and fully to be complete and 
 ended ; by virtue of which said several demises, the said 
 A. B. entered into the said several tenements with the ap- 
 purtenances, and was possessed thereof, until the said 
 C. D. afterwards, to wit, on the day of in 
 
 the year aforesaid, with force and arms, CSV. en- 
 
 tered into the said several tenements, with the appurte- 
 nances, which the said E. F. and G. H. had respectively 
 demised to the said A. B. in manner and for the several 
 terms aforesaid, which were not then, nor are yet, expir- 
 ed, and ejected the said A. B. from his said several farms : 
 whereof the said C. D. is convicted, as appears to us of 
 record : therefore we command you, that without delay 
 you cause the said A. B. to have the possession of his said 
 several terms yet to come of and in the said several tene-
 
 6oG Precedents in Ejectment, 8$c. 
 
 ments, with the appurtenances ; and in what manner you 
 shall have executed this our writ, make appear to us at 
 Westminster, on next after and have there 
 
 then this writ. Witness, &"c, 
 fri No - xv . IIL George the Third, £sV. To our chancellor of our 
 
 J lie like, in a " * 
 
 county-palatine, county-palatine of Lancaster or to his deputy there, 
 greeting : whereas, i-'c. [as in the last writ, to the words 
 '' as appears to us of record," then as follows :] therefore 
 we command you that by our writ under the seal of 
 our said county-palatine to be duly made, and directed 
 to the sheriff of the same county, you command the 
 said sheriff that without delay he cause the said A. B. 
 to have the possession of his several terms aforesaid, yet 
 to come of and in the several tenements aforesaid with 
 the appurtenances ; and in what manner the said sheriff 
 shall execute our said writ, let him certify to you, so 
 that you may make the same known to us at Westminster, 
 on next after and have there then this writ, 
 
 Witness, life. 
 
 t ,, 1 N ,°; XIX - 1 George the Third, &c. To the sheriff of greet- 
 
 Ihe like, and 6 . . 
 
 fieri facias for ing : whereas, £sV. [as in the habere facias, to the return 
 day, then proceed as follows : J we also command you, that 
 of the goods and chattels of the said C. D. in your 
 bailiwick, you cause to be made /. which the said 
 
 A. B, lately in our said Court before us at Westminster 
 aforesaid, recovered against the said C. D. for his da- 
 mages which he had sustained as well on occasion of 
 the trespass and ejectment aforesaid, as for his costs 
 and charges by him about his suit in that behalf expend- 
 ed; whereof the said C. D. is also convicted, as appears 
 to us of record ; and have you the said monies be- 
 fore us at Westminster, on the return day aforesaid, to 
 render to the said A. B. for his damages aforesaid ; and 
 have there then this writ. Witness, &c. 
 No. XX q thg Third # To the sheriff of greet- 
 
 The like, and <-> •' o 
 
 capias ad satis- ing : whereas, <ffc. [as in the habere facias posses- 
 sionem, to the return day, and then as fellows:'] we also 
 command you, that you take the said C. D. if he shall 
 be found in your bailiwick, and him safely keep, so that 
 you may have his body before us at Westminster, on the 
 return day aforesaid, to satisfy the said A. B. I. 
 
 which in our said Court before us at Westminster afore- 
 said, were adjudged to the said A. B. for his damages 
 which he had sustained, as well on occasion of the tres- 
 pass and ejectment aforesaid, as for his costs and 
 
 casts.
 
 Precedents in Ejectment, fyc. 607 
 
 charges by him about his suit in that behalf expended ; 
 whereof the said C. D. is also convicted, as appeas to 
 us of record ; and have there then this writ. Wit- 
 ness, &c. 
 
 to wit. A. B. complains of C. D. being in the No. XXI. 
 
 custody of the marshal of the Marshal ea of our Lord bi ^ for ' t ° h n e 
 the now King before the King himself, for that he the mc f ne P ;cfits 
 
 ° ° and costs in 
 
 said C. D. on the day of in the year of our tj<ctment after 
 
 Lord with force and arms, &c. broke and entered ^efault^eainst 
 
 messuages [describing the premises as in the decla- the casual 
 ration in ejectment] with the appurtenances, of him the 
 said A. B. situate and being in the parish of &c. in the 
 said county of and then and there ejected and ex- 
 
 pelled, put out and removed the said A. B. from the 
 possession, use, occupation and enjoyment thereof, for a 
 long space of time, to wit, for the space of then 
 
 next following ; and during all that time there took, had 
 and received to his own use all the rents, issues and pro- 
 fits of the said tenements, with the appurtenances, being 
 of a large yearly value, to wit, of the yearly value of 
 
 /. By reason whereof the said A. B. for and dur- 
 ing all that time not only lost and was deprived of all the 
 profits, benefit and advantage of the tenements aforesaid, 
 but was also thereby forced and obliged to lay out and 
 expend, and did necessarily lay out and expend a large 
 sum of money, to wit, the sum of /. in and about 
 
 recovering and obtaining possession of his tenements 
 aforesaid, with the appurtenances, to wit, at the parish 
 aforesaid ; and other wrongs to the said A. B. then and 
 there did against the peace of our said Lord the now King, 
 and to the damage of the said A. B. of /. ,• and 
 
 therefore he brings his suit, &c. 
 
 _, ( John Doe, 
 
 Pledges to prosecute \ Richard Ro ^ 
 
 to wit. C. D. late of in the county of No. XXH> 
 
 Thclik 
 original 
 
 yeoman, was attached to answer A. B. of a plea original 6 ' 
 
 wherefore, with force of arms, he broke and entered 
 
 messuages, &c. with the appurtenances, in 
 in the county of aforesaid, and expelled, put out 
 
 and removed the said A. B. from the possession and oc- 
 cupation of his said tenements, and kept and continued 
 the said A. B. so ejected, expelled, put out and removed 
 from the possession and occupation of the same for a 
 long space of time j and, during all that time, there
 
 608 Precedents i)i Ejectment, 8$c. 
 
 had and received to his own use, all the rents, issues 
 and profits of the said tenements, being of a large yearly 
 value ; and other wrongs to the said A. B. there did, to 
 the great damage of the said A. B. and against the peace 
 of our Sovereign Lord the King, £sV. ; and hereupon the 
 said A. B. by E. F. his attorney, complains that the said 
 C. D. on the day of in the year of 
 
 the reign of his present Majesty, with force and arms, 
 broke and entered the said tenements, -&c. with the ap- 
 purtenances, in aforesaid, in the said county of 
 and ejected, expelled, put out and removed the 
 said A. B. from the possession and occupation of his said 
 tenements, and kept and continued the said A. B. so 
 ejected, expelled, put out and removed from the 
 possession and occupation of the same, for a long space 
 of time ; that is to say, from the said day of 
 
 in the year aforesaid, until the day of suing 
 
 out the origin d writ of the said A. B.; and, during all 
 that time, there had and received to his own use, all the 
 rents, issues and profits of the said tenements, being of 
 a large yearly value, to wit, of the yearly value of 
 
 /. ; and other wrongs to the said A. B. then and 
 
 there did to the great damage of the said A. B. and 
 
 against the peace of our said Sovereign Lord the King : 
 
 wherefore the said A. B. says that he is injured, and 
 
 hath sustained damage to the value of fifty pounds ; and 
 
 therefore he brings suit, t*fc. 
 No XXIIT 
 Pleas'thereto; -And l ^ e sa ^ ^' &. by G. H. his attorney, comes and 
 
 vii i. Not defends the force and injury when, tffc. and savs, that 
 
 guilty; and a, , J ' 
 
 Not 'guilty he is not guilty of the supposed trespass above laid to his 
 
 •it m six years. c h ar g e> m manner and form as the said A. B. hath above 
 thereof complained against him ; and of this he puts 
 himself upon the country, and the said C. D. doth the 
 like. And for a further plea in this behalf, the said 
 C. D. by leave of the Court here, for this purpose had 
 and obtained, according to the form of the statute in 
 such case made and provided, says, that the said A. B. 
 ought not to have his aforesaid action thereof against him ; 
 because he says that he was not guilty of the supposed 
 trespass aforesaid, above laid to his charge, at any time 
 within six years next before the day of exhibiting the bill 
 [or suing out the original writ] of the said A. B. against 
 the said C. D. in the manner and form as the said A. B. 
 hath above thereof complained against him the sai4
 
 Precedents in Ejectment, 8$c. 609 
 
 C. D. : and this he the said C. D, is ready to verify ; 
 wherefore lie prays judgment if the said A. B. ought to 
 have his aforesaid action thereof, against him, iffc. 
 
 C. R. 
 And the said A. B. as to the said plea of the said No. XXIV. 
 C. D. by him lastly above pleaded in bar, says, that he, an( ] , ssue> 
 by reason of any thing by the said C. D. in that plea 
 alleged, ought not to be barred from having his afore- 
 said action thereof against him ; because he saith that 
 the said C. D. was guilty of the trespass aforesaid, 
 above laid to his charge, within six years next before the 
 day of exhibiting the bill [or suing out the original writ 
 of the said C. D. against the said C. D. in manner- and 
 form as he the said A, B. hath thereof complained 
 against him the said C. D. and this he the said A. Z? 4 
 prays may be enquired of by the country ; and the said 
 C. D. dotli the like, £sV. 
 
 Kr
 
 INDEX. 
 
 Action, 
 
 of debt, where the lease is by deed, 323. 
 the declaration, 326. 
 the pleas, 329. 
 of debt on bond for performance of covenants, 335. 
 of covenant for rent, where the lease is by deed, lb. 
 the declaration, 338. 
 the pleas, 341. 
 of debt for use and occupation, 345. 
 of debt for double value, ib . 
 double rent, 346. 
 
 the pleas, 348. 
 of assumpsit, for use and occupation, lb. 
 
 the pleas, 352. 
 of ejectment, 354. 
 
 where it lies, ib. 
 its history, 355. 
 antient practice, lb. 
 modern practice, 356. 
 who may have it, 358. 
 for what things it lies, 367. 
 
 of this action, when the tenant is in possession, 37l« 
 of amending the declaration, 377. 
 of serving declaration, 379. 
 affidavit of service, 382. 
 moving for judgment, lb. 
 who may defend it, 384. 
 the tenant, ib. 
 the landlord, 385. 
 a third person, 387. 
 consolidation rule, ib. 
 appearance, lb. 
 staying proceedings, 389. 
 of the pleas and issue, 392. 
 
 death of plaintiff, 395. 
 defendant, ib. 
 either party, ib- 
 Rr 2
 
 612 INDEX. 
 
 ACTION, 
 
 of the evidence, .'395. 
 
 witnesses, 403. 
 verdict, 406. 
 judgment, 407. 
 damages, 408. 
 costs, 409. 
 execution, 410. 
 writ of error, 413. 
 of this action, where the possession is vacant, 415. 
 where brought against a corporation, 41& 
 where brought in an inferior court, 417. 
 for mesne profits, 418. 
 second action of ejectment, 422. 
 action of ejectment on the stat. 4 G. 2. c. 28, 424. 
 action of covenant for wast of repairs, &c, 431. 
 assumpsit for breach of covenants, 443. 
 action of waste, 446. 
 
 writ of estrepement, 447. 
 of waste, 448. 
 who shall have waste, and against whom it lies, 449. 
 the proceedings, 450. 
 declaration and pleas, 452. 
 judgment, 455. 
 trover for waste, lb. 
 
 action upon the case in the nature of waste, 456, 
 action by landlord for nuisances, 461. 
 where it lies, lb. 
 
 declaration, 463. 
 pleas, &c, 464. 
 action against sheriff for removing goods under an execution, 465. 
 action of replevin, 473. 
 
 who may have, lb. 
 
 against whom, and for what, 475. 
 the several kinds of, lb. 
 out of what courts replevin issues, 476. 
 of the pledges, 478. 
 
 how to be made in cases of distress for rent, 479. 
 of the writs, 480. 
 
 of second deliverance, 481. 
 de proprletate prthanda, 483. 
 de retorno habendo, 484. 
 returns irreplevisable, lb. 
 modes of executing processes, ib. 
 of the declaration, 485. 
 pleas, 486.
 
 INDEX. 61 S 
 
 ACTION, 
 
 of removing the suit from county court, 487. 
 
 of compelling party to proceed, 4-88. 
 
 of avowries, 489. 
 
 for rent, 490. 
 
 for cattle, 496. 
 
 of the verdict and judgment, 498. 
 
 of the non-pros, non-suit, &c, when distress is for rent, 
 
 under stat. 17 Car. 2., 500. 
 
 of the remedies where the pledges are insufficient, 504% 
 
 by action against sheriff, ib. 
 
 by scire facias against pledges, 505. 
 
 on replevin-bond, 506. 
 
 action of covenant or assumpsit by tenant, 517. 
 
 action of trespass by tenant, 522. 
 
 action on the case by tenant, 532. 
 
 Agreement, 
 
 to lease amounting to a present demise, 20. 
 
 not to turn out tenant while he complies with certain conditions, 21. 
 to lease by dean and chapter, signed by dean only, good, ib. 
 to lease by three, executed by one, 22. 
 parol agreements, ib. 
 of part performance, 24. 
 of the remedies under agreements, 
 in equity, 24. 
 at law, 27. 
 
 by covenant, 28. 
 assumpsit, ib. 
 Assignment. See Mortgage. 
 
 its nature, how made, and what things are assignable, 275. 
 assignees, how far liable under covenants, &o, 277. 
 what covenants, Sec. they may take advantage of, 284. 
 Assumpsit. See Action. 
 Attornment, 
 
 nature and use of, 154. 
 
 BANKRUPT, 
 
 of the changes happening by bankruptcy of the tenant, 293. 
 Bond, 
 
 for performance of covenants, 253. 
 CASE. See Action. 
 Church, 
 
 liability to repair, and right to pews, 547. 
 Common, 
 
 of estovers, 232. 
 Conditions. See Lease. 
 
 mature of, and how they differ from covenants. 247.
 
 614 INDEX. 
 
 Conditions. 
 
 not to assign, 261. 
 of re-entry, 267. 
 
 Confirmation, 
 
 of leases, 
 
 by issue in tail, 34, 269. 
 by remainder-man and reversioner, 41, 44. 
 by wife, after husband's death, 75, 76. 
 by bishops, patrons, &c, 71. 
 
 Copyholds. 
 
 lease by husband of wife's copyhold, 76. 
 
 by infant without license, 88. 
 licence to let, 85. 
 
 lessee may assign, &c, without further licence, 87. 
 if made on condition void, ib. 
 lease may affect widow's freebench, ib. 
 right of copyholder to cut down wood, 235. 
 
 Corporations. See Lease. 
 
 what acts they may do by deed, or without, 63. 
 of the acts of their bailiffs, stewards, &o, 64. 
 by what names they may take or grant, 66. 
 other properties of corporations, ib. 
 
 Covenants. See Assignment and Action. 
 nature of, 243. 
 in what cases implied, ib. 
 
 for quiet enjoyment, ib. 
 
 to cultivate land, 244. 
 
 to repair, ib. 
 
 to pay rent, 245. 
 express covenants, 246. 
 
 nature of, and how they differ from conditions, 247. 
 
 for quiet enjoyment, 249. 
 
 for payment of rent, 252. 
 of taxes, 254. 
 
 to cultivate the land, 255. 
 
 to repair and yield up possession, 256. 
 
 to reside on the premises, 259. 
 
 not to permit certain trades to be carried on, 260, 
 
 not to assign, ib. 
 
 to insure, 265. 
 covenants, how to be construed, &c, ib. 436. 
 
 how affected by Acts of Parliament, 272. 
 
 secured by penalty, ib. 
 
 in assignments, 277. * 
 
 5
 
 INDEX. C 1 5 
 
 DATE, 
 
 of lease, 117. 
 
 Debt. See Action. 
 
 Devi.se, 
 
 to executors to pay debts, a chattel interest, 111. 
 
 of leasehold interests, 29(5. 
 
 rights and interests of devisees of leaseholds, 297. 
 
 Distress, 
 
 its nature, and when it lies, 304. 
 
 by whore it m: y be made, 305. 
 
 of what things it may be made, 308. 
 
 when, wheie, and how, it should be made, 314. 
 
 how it should be disposed of, 318. 
 
 landlord's remedy for goods fraudulently removed, 469. 
 
 remedies for irregular distress, 507. 
 
 for rent pretended to be in arrear, 508. 
 
 for other supposed right to distrain, 509. 
 
 trover for irregular distress, 514. 
 
 trespass for same, 515. 
 distress for damage feasant, and rescous, 520. 
 
 EJECTMENT. See Action. 
 
 where husband and wife leased by attorney, 75. 
 
 Em elements, 
 
 what, and who shall have, 237. 
 Estoppel, 
 
 in what cases leases enure by way of estoppel, 155. 
 where lease is made by tenant at will, 82. 
 by mortgagor, 85. 
 
 Execution*. See Action. 
 Executors and Administrators, 
 
 of their rights and interest, and what actions they may maintain, or 
 are liable to, 289 
 
 FEME COVERT. See Husband and Wife. 
 
 Fines, 
 
 on renewal of leases, 252. 
 Fixtures, 
 
 what may, and what may not be removed, 217. 
 
 as between landlord and tenant, ib. 220 — 224. 
 
 tenant for life, or in tail, and remainder-mar., 221. 
 Forcible Entry, 
 what, 535.
 
 616 INDEX. 
 
 Forcible Entry, 
 
 how punishable, 537. 
 
 by action, 537. 
 
 at the sessions, 538. 
 
 by a justice, ib. 
 
 by a certiorari, 542. 
 
 as a riot, 51-3. 
 Forfeiture. See Lease. 
 
 GOODS, 
 
 schedule of, and covenant to re-deliver, 260. 
 
 HUSBAND AND WIFE. 
 
 husband may dispose of wife's term, 77, 78, 280, 
 
 of the alteration of interests, Sec. ib. 
 produced by marriage, 289. 
 INFANT. See Lease. 
 ] ^SOLVENCY, 
 
 of the changes happening by insolvencv of tenant. 256'= 
 JOINT-TENANTS. See Lease. 
 
 LEASE. 
 
 what, 1. 
 
 antiquity of, I — 3, 
 
 requisites to a good lease, 4. 
 
 operative words, ib. 
 
 what shall amount to a present demise, ib, 
 
 of leases by deed, 8. 
 
 by writing without deed, 1 3, 
 by parol demise, 14. 
 of leases by tenant in fee, 34. 
 in tail, ib. 
 
 under the enabling statutes, 37. 
 in tail after possibility, 41. 
 for life, ib. 
 four autre vie, 43. 
 
 by the courtesy, in dower or jointure, ib, 
 persons authorized by powers, 44. 
 the requisites to such lease, 
 
 with respect to the lessor, 15. 
 to the lessee, ib. 
 to the subject of the lease, 46. 
 to the quality and quantity of interest, 48, 
 to the rent, 54. 
 to the form of the lease, 60. 
 tenants for years, 62. 
 
 from year to yea:-, or a less term, ib. 
 corporations, 63.
 
 INDEX. 617 
 
 LEASE. 
 
 ecclesiastical persons, 67. 
 
 at the common law, ib. 71. 
 under statutes, ib. 
 trustees of charities, 73. 
 married women and their husbands, 75. 
 of copyholds, 76, 87. 
 und^r the statutes, / <'. 
 infants, 79. 
 guardians, 80. 
 
 in socage, ib. 76. 
 testamentary, 81. 
 by nurture, ib. 
 executors and administrators, 82. 
 mortj igors and mortgagees, ib. 
 tenants by elegit, &c, 85. 
 copvhclda's, ib. 
 
 joint-tenants, co-parceners, and tenants in common, 89. 
 attendee, agents, Sec, 92. 
 
 should be made in the name of the principal, ib. 
 to whom leases can, or cannot be made, 95. 
 spiritual persons under statute, ib. 
 infants, 96. 
 femes covert, ST. 
 aliens, ib. 
 denizens, 99. 
 of what things leases may be made, 100. 
 corporeal hereditaments, 101. 
 
 what will pass under certain descriptions, 102. 
 incorporeal hereditaments, 103. 
 advowsons, 104<. 
 tithes, ib. 
 tolls, 105. 
 estovers, ib. 
 commons, ib. 
 ways, ib. 
 offices, ib. 
 franchises, 106. 
 corrodies and pensions, ib. 
 annuities and rents, 107. 
 for what terms leases may be made, 110. 
 for life, ib. 
 for years, 1 It. 
 
 commencement, ib. 159. 
 interest termini, 123, 159. 
 duration, 124. 
 S s
 
 618 INDEX. 
 
 LEASE. 
 
 termination, 131. 
 
 by effluxion of time, 132. 
 merger, lb. 
 surrender, 134. 
 cancellation, 149. 
 condition or proviso, 150. 
 forfeiture, lb. 
 of leases in reversion, 153. 
 
 Livery, 
 
 nature of, and when requisite, 111. 
 
 Lodgings, 
 
 how let. and wbr.t notice requisite, 177. 
 how far lodgers are householders, 17 So 
 
 MERGER. See Lease. 
 
 Mortgage, 
 
 oi leases by wry of mortgage, 161. 
 
 interests of mortgagor and mortgagee, and in what relations they stand 
 
 with respect to tenancy, &c, S3, 
 what actions they may maintain under covenants in leases, 84. 
 what covenants mortgagee of lease is liable to, lb. 287. 
 
 NOMINE PCENJE, 
 
 for non-payment of rent, ploughing, &o, 253, 270. 
 
 Notice, 
 
 to quit, 164. 
 
 is governed by the letting, 167, 177. 
 and by custom, lb. 
 where landlord is ignorant of the commencement of the tenancy, 169. 
 must be clear and certain, 172. 
 waiver of, 173. 
 
 in what cases unnecessary, 175, 182. 
 to quit lodgings, 177. 
 Nuisances. See Action. 
 
 PARTY WALLS, 
 
 who are liable to bear the expence of, 199. 
 
 Poor's Rates, 
 
 acts relating to, 201. 
 
 who are rateable to, and in respect of what things, 203. 
 how to be made and raised, 209. 
 when to be collected, 210. 
 distress for, 211. 
 the appeal from, 216. 
 8
 
 INDEX. 619 
 
 Power. See Lease. 
 
 devise that a person may set and let, gives a bare authority only, 82. 
 
 to lease inserting usual covenants ; an unusual covenant 
 avoids the whole, 274. 
 Premises. See Lease. 
 
 of corporeal hereditaments, 101. 
 
 what will pass under particular denominations and descriptions, 102. 
 
 of incorporeal hereditaments, 103. 
 
 REGISTRY, 
 
 acts requiring deeds to be registered, 15, 16. 
 
 what leases they extend to, 16. 
 
 effect of registry, 17, 19. 
 
 of the memorial, 18. 
 
 of registry by representative of a deceased party, ib. 
 
 Renewal 
 
 of leases, 143. 
 
 covenant to renew, on falling in of one life, 66. 
 
 of lease by guardian, 82. 
 
 by one jointly interested with an infant, 97- 
 tenant, right of renewal, 148. 
 
 Rent, 
 
 reserved to one joint-tenant enures to both., 90. 
 
 recoverable by executors of tenant for life, under stat. 11 G. 2., 91. 
 
 different kinds of, 107. 
 
 how to be reserved, and to whom it shall go, 184. 
 
 how payable, 1 90. 
 
 apportionment of, 192. 
 
 when due, 1 97. 
 Repairs. See Covenant and Action* 
 Replevin. See Aci'wu. 
 
 SHERIFF. See Action. 
 
 Stamps, 
 
 to leases and agreements, 31. 
 to one instrument, containing several demises, 32. 
 under the Act of 48 G. 3. c. 1 49., ib. 
 Statutes, 
 
 19 Car. 2. c. 6. respecting tenants for life, &c. beyond sea, 113. 
 6 Ann. c. 18. respecting guardians, &c. concealing infants, &c, 114. 
 II G. 2. c. 19. giving remedy to landlord where the premises are va- 
 cant, 429. 
 
 Surrender. See Lease. 
 
 TAXES, 
 
 by whom payable, 1 97.
 
 620 INDEX. 
 
 Tenancy. See Lease. 
 for life, 110. 
 for years, 116. 
 from year to year, 163. 
 
 for a less term, 177. 
 
 at will, 180. 
 
 at sufferance, 183. 
 
 Tehms for Years. See Lease. 
 nature of, 116. 
 only chattel interests, 117. 
 may be intailed, lb. 
 
 nature of lessee's interest in term before entry, 123, 
 of terms in trust, or in gross, 160. 
 
 Tithes. See Lease. 
 
 notice to quit requisite, 167, 172. 
 Trespass. See Action. 
 Trover. See Action and Distress. 
 
 UNDERLEASE, 
 
 how it differs from an assignment, 287. 
 
 Use and Occupation-. See Action. 
 infants liable for, 97. 
 
 WASTE. See Action. 
 
 what is, 217, 228. 
 
 remedies in equity for waste, 456. 
 
 Way, 
 
 remedies for obstruction of a right of way, 54-L 
 
 Wij.l. See Devise. 
 
 THE END. 
 
 
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 Ansel Court, Skinner Street, London
 
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