A ==^ .i I'' ^^S 1 - o H ^ 8 6 1 9 "^ 1 ^ 3 =^=^= :x) 3 8 m --^ 1 -:*^^ '^-' :^>,, *> >J>> , v^ ^^jstxy » > 'iT^ ^'^X)^ UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY FROM CarsweJl & Co. Law-Book Publisher>>,dc. TORONTO, A MANUAL LAW OF LANDLORD AND TENANT. HORACE SMITH, B.A. Of TRINITV HALL, CAMBRIDGK, AND OK THE INNER 'l EMPLE AND MIDLAND CJRCUir, BARRISTER-AT-LA\V ; THOMAS SPOONEK SODEN, M.A. OK EXETER COLLEGE, OXKORD, AND OF THE MIDDLE TEMPLE AND MIDLAND I IRCl'U, BARRISTER-AT-LA\V. WITH FORMS. LONDON: PAVIS & SOX, 57 CAREY STREET, LINCOLN'S INN, W.C. 1878. i PREFACE TO THE SECOND EDITION. The favourable reception of this book by both branches of the profession has induced the authors to publish a second edition. The authors desire to express to those avIio so kindly reviewed the first edition their obligations for the encouragement inspired by favourable criticism, as well as for those suggestions by which the authors trust they have shown themselves capable of profiting. They venture to hope that the results of a considerable amount of care and labour, and of an earnest desire to produce a work of substantial value, will be apparent in the present edition. The original arrangement, for which, as announced in the preface to the first edition, the authors were indebted to Mr. Cave, Q.C., met with general approval and has not been substantially changed; but an en- deavour has been made to render the present edition more full and accurate throughout. The main alterations wliich have been made in the text are as follows: — In Part I. the first section of Chapter IV., with respect to the different kinds of leases, has been curtailed, and it is hoped rendered more clear and perspicuous. The subjects of covenants h vi ■ PREFACE, and reservations in miuiug leases and with respect to game have been enlarged, and a section added upon counterparts of leases. In Part II. the text has been made fuller in some respects, and a short chapter added on the subject of game. In Part III. the chapter on fixtures has been almost re-writtcn. Section 3 of Chapter VI. (Compensation for Improvements), and Chapter VIII. (Ptesumption of Holding for Improve- ments) have been added. The passing of the Judicature Acts has also rendered necessary considerable altera- tions throughout the work. An Appendix of Forms has been added mainly through the very great kindness of Mr. Henry P>urrell of the Conveyancing Bar. ]\Ir. Burrell's well-known reputation as a conveyancer is a sufficient guarantee for the accuracy of those forms which he has so kindly prepared for this edition, viz., the forms of leases and agreements. These, w4th the rest of the forms, it is hoped, will prove a valuable addition to the book. The Agricultural Holdings Act is printed at length in the Appendix of Statutes, as w^ell as referred to in the text. By adopting a smaller type and margin, the authors have been able to present to the profession a w'ork of the same bulk and at the same price as the former edition, but containing a very large amount of extra and, it is hoped, valuable material. Shortly before the publication of tliis book, and after the text of the book had been fully printed, another edition of Woodfall's Landlord and Tenant appeared. That work had, as was hinted in the preface to the first edition of the present authors' book, grown to an unwieldy size, and the authors hope they may be PREFACE. Ml allowed to congratulate Mr. Lcly upon his liaviiig successfully reduced the Avork in question to more ^moderate dimensions; but the authors still believe that they may fairly expect to hold, as they said in their first edition, " a middle place between the elaborate but expensive treatise of Woodfall and tlie outlines contained in the Lectures of Mr. J. W. Smith." The statutes and cases have been brought up to the beginning of March 1878. HORACE SMITH. THOMAS SPOONER SODEN". Temple, March 1S78. PREFACE TO THE FIRST EDITION. Some time ago Mr, Cave conceived the idea of writing for the use of the profession generally, a Manual of the Law of Landlord and Tenant, wliich should hold a middle place between the elaborate but expensive treatise of Woodfall, and the outlines contained in tlie Lectures of Mr. J. "VV. Smith. He accordingly sketched out the ground-plan of the present work, and had written some portions of it, when he found himself unable, from the pressure of other business, to carry out his design. Under these circumstances the authors, at his request, undertook to continue the work thus inter- rupted ; and, in the course of their labours, have had the advantage of consulting with Mr. Cave, and of submitting the proof-slieets to him for revision. The authors have spared no pains in endeavouring to make the Treatise as accurate as possible, and hope it will prove to be a clear and concise state- ment of the law, as well as a useful book of refer- ence. HORACE SMITH. THOMAS SPOONER SODEN. Templk, Ma'j 1 87 1. TABLE OF CONTENTS. PART I. CREATION OF THE TENANCY. CHAPTER I. OF LESSORS. Ten.vnts in Fee-simple Tenants in Tail — . at common law enabUny statues fines and recoveries Tenants for Life— at common laiu by statute tenant per autre vie — tenants after possibility of issue extinct tenants in dower or jointure husband leasing wife's land Persons having less th.vn A Freehold Interest tenant for years from year to year . for less than years . at will . Joint-Tenants and Tenants IN Common Mortgagor and Mortgagee Lords of Manors and Copy HOLDERS . 8. Corporations— . . . 1 1 the crown . . . . 1 1 municipal corporations . . ii trustees of settled estates . 12 trustees of charter ... 12 local authorities . . . 12 railway comjxinies . . 12 ecclesiastical pei-sons . . 13 enabling and disabling statutes 12-15 9. Parish Officers . . . 15 10. Guardians — ... 16 guardians in socage . . 16 testamentary guardians . . 16 11. Executors and Adminis- trators .... 17 12. Trustees of Bankruptcy . 18 13. Persons under Disability — 18 lunatics .... 18 jiersons in a state of intoxication 18 2)ersons under duress . . 19 persons attainted ... 19 married women ... 20 infants 20 CHAPTER XL OP LESSEES. t. Persons UNDER Disability — lunatics . persons outlawed . aliens and denizens matTied women infants . 23 23 22 23 24 24 Corporation — corporations . ecclesiastical persons local authorities Parish Officers, &c. 25 25 2(> 26 CONTENTS. CHAPTER III. OP THE SUBJECT OP DEMISE. PAGE PAGE Corporeal Hereditaments— 27 corrodies 30 loilyhtf/s 27 franchises 30 (joods and chatteh . 28 tolls 30 incorporeal hereditaments 28 offices 30 advowsons 28 pensions 31 tithes .... 28 rents and annuities . . 3r commons and estovers 29 other incoi 'poreal hereditaments 31 ways .... 29 CHAPTER IV. OF THE INSTRUMENT OF DEMISE. I. Distinction between leases BY DEED, LEASES BY WRIT- ING NOT UNDER SEAL, AND LEASES WITHOUT WRITING — 32 leases by deed 32 leases not under seal 33 leases at common law 33 statute of frauds . 34 effect of non-compliance with 36 presumed yearly tenancy 36 2. Recitals 40 3. Words of Demise— 42 distinction between leases am I agreements 42 distinction between leases ant I licenses 50 4. Parcels Demised— 51 exceptions and reservations 58 of shooting 61 of mines 61 5. Habendum — . 62 commencement of term . 63 duration of term . 67 tenancy at will 68 tenancy from year to year 71 shorter tenancies . 72 option to determine 72 6. Reddendum — 73 from what rent issues 73 its nature and incidents 74 7. Covenants 77 (a) UA 13- EXRRESS- 79 payment of rent 79 payment of taxes . 80 repairs 82 hunhandry 84 insurance 85 not to underlet or assign 86 license .... 89 not to carry on certain trades 91 trading with particular per sons, or within a particular radius 91 quiet enjoyment 93 renewal of leases 95 mining leases 97 Implied— 99 payment of rent 99 repairs . 100 husbandry lOI for title . 102 quiet enjoyment 102 mining leases 103 other implied covenants . 103 Provisos and Conditions 103 Powers of Rk-entry— 105 void and voidable leases 106 Leases under Powers . 107 Leases by Estoppel iir Stamps .... 112 Counterparts 120 CONTENTS. XI PART IT. CONTINUATION OF THE TENANCY— DUTIES OF THE PARTIES. Division I. — Duties of the Tenant. CHAPTER I. DUTY TO PAY RENT. PAGE PAOE I. Time when Payable 122 sewers' rates . . 128 2. Mode of Payment . 124 }Mor-rates . 128 ^. Deductions— • 125 other rates 129 land tax 126 tithe rent charge 129 income tax 127 4- Apportionment . 130 SECT] [ON I. HOW ENFORCED. Action— 137 Mse and occupation 138 debt .... 139 Distress— 140 definition of . 140 («) Who may Distrain— 141 joint-tenants . 141 coparceners . 142 tenants in common 142 husband and xeife . 142 tenant pur autre vie 143 tenant by elegit 143 mortgagee 143 agents, bailiffs, and receivers 144 executors and administrators 14s sequestrators . 146 {b) What may be Distrained- - 146 gcneral rule . 146 growing crops, hay, straw dc 147 (c) What may not be Dis - . TRAINED — 149 things absolutely privileged 149 things conditionally privileged (d) Where the Distress may BE MADE .... (c) When the Distress may be MADE abandomnent — second dif!trcss (f) How A Distress should be MADE tender .... {g) What to be done with it (/() Illegal Distress — . remedies for illegal distress when no rent is due at th time .... distraining for more rent than is due twice for the same rent . for excessive disti'css things not the subject of dis' tress .... for other illegal acts rescue .... replevin . . . 153 154 155 157 157 159 160 167 167 167 168 168 168 169 171 171 176 CHAPTER II. duty to repair and cultivate. I. Waste— .... without impeachment of waste 175 178 2. Fire 3. Cultivation 178 179 xii CONTENTS. SECTION I. HOW ENFORCED. PAOE I PAOK 1. Action FOR Non-Repair . i8o 3. Entky or Recovery by Action 182 2. Action for Waste . . 182 I 4. Injunction .... 183 Division II. — Duties of Landlord. CHAPTER I. DUTY TO GIVE UNDISTURBED POSSESSION 187 SECTION I. HOW ENFORCED 1 87 REMEDIES FOR DISTURBANCE 1 87 CHAPTER II. DUTY TO GRANf A LEASE ' . . 189 SECTION I. HOW ENFORCED IQO SPECIFIC PERFORMANCE I90 CHAPTER III. DUTY TO REPAIR I9I SECTION I. HOW ENFORCED I91 CHAPTER IV. DUTIES WITH RESPECT TO GAME ^ 1 93 CONTENTS. Xlll PART III. DETERMINATION OF THE TENANCY. EFFLUXION OF TIME CHAPTER I. PACK 194 CHAPTER II. SURRENDER. I. Express at Common L.vw, and SINCE THE Statute oe Frauds — . who may surrender to whom surrender may he made .... in what tvords 19s 195 196 196 By Operation op Law— . 196 taking a new lease . . . 196 other acts . . . .197 by merger .... 198 Effect of a Surrender on Under-leases — . . 199 operation of merger . . 200 CHAPTER III. FORFEITURE. Ee-entry for— by whom for non-Tpayment of rent 1. Form of Notice 2. When to be given 3. By and to whom given . Small Tenements Act Desertion by Tenaj«'t 201 2. "Waiver . 201 3. Disclaimer . . 203 CHAPTER IV. NOTICE TO QUIT. 208 4. How SERVED . 211 5. Waiver of Noi 212 CHAPTER V. HOLDING OVER. 218 1 3. Double Value 222 4. Double Rent . 204 207 213 214 224 226 CHAPTER VI. EMBLEMENTS. Where there is no Con tract — ... where they may he claimed out of what claimed entry to take them . 22b 228 231 231 2. Where there is a Con- tract .... 232 3. Compensation for Improve- ments .... 235 XIV CONTENTS. CHAPTER VII. FIXTURES PAOE FixUn'es in r/eneral 238 tenant's fixtures • 239 (i) trade or agriculture 240 (2) ornament . . 243 (3) removable by statute • 245 when to be removed 247 how to be removed . 248 agreem.ents with respect to fix- tures 248 customs affecting fixtures . 249 Contracts of sale or mortgage affixtures .... 249 valuation . . . .251 CHAPTER VIII. RESUMPTION OF HOLDING FOR IMPROVEMENTS PART IV. CHANGE OF PARTIES. CHAPTER I. BY ACT OP PARTIES. By Landlord— 254 at common law 257 assignment 254 hy 32 Hen. VIII. , c. 34 257 attornment 254 assignments by way of mort- By Tenant 257 gage 259 assignment 257 4. Covenants running with U7idcrlelting . 257 Land — .... 260 Consequences op Assign icord ^^ assigns,^' use of . 262 MENT— . 257 5. Assignment of Part 263 1. Death— . of lessor of lessee . 2. Bankruptcy CHAPTER II. BY ACT OF LAW. 265 I 3. Marriage 265 of female lessor 266 of female lessee 269 I 4. Writs of Execution 274 275 277 278 CONTENTS. XV APPENDIX OF FORMS. ] CHAPTER I. PAGE FORMS OF AGREEMENTS AND LEASES, ETC 2i;4 CHAPTER II. FORMS OF LICENCES 332 CHAPTER III. NOTICES, DEMANDS, ETC 335 CHAPTER IV. FORMS OF PLEADINGS 34 1 CHAPTER V. FORMS OF PROCEEDINGS IN REPLEVIN 346 CHAPTER VI. FORMS IN ACTIONS FOR RECOVERY OF SMALL TENEMENTS, ETC. . 349 APPENDIX OF STATUTES. AGRICULTURAL HOLDINGS ACT, 1875 355 INDEX TO CASES CITED. A. PAOE PAGE Arthur r. Lamb . • 185 Abadam r. Abadam 127 Arundel (Earl of) i: Lord G ray . 197 Abbey i: Fetch . 149 Ashcroft r. Bourne 224 Abbot V. Weekly 26 Ashfield i: Ashfield 21 Accidental Death lusuranc e Co. Ashton V. Jones . 26 V. Mackenzie • 257 Ashtown i: Sarke 208 Ackland v. Lutley 65, 20I Aspdiu V. Austin . 99, J 03 Ackroyd r. Smith 31 Astbury ex parte . 249 Acocks v. Phillips . 124 Atkinson 1: Baker 63 Acranian ?•. Price 103 Attack r. Braniwell 158, 167 Acton V. Pritcher 13 Att.-Geii. r. Cox 106, 200, £62 Adams V. Gibney . 4, 102, 267 V, A'igor i2 ?•. Grane 151, 153 V. Glyu 26 Agard v. King 72 i\ Great Yarmouth 12 Alcocks r. Philliiis 203 V. Lewin . 16, 26 Aldenburgh r. Peajile . • 155 V. Shield 127 Alderman r- Neat 43, 44, 48 Aubrey v. Fisher . 177 Alebury v. "Walby • 277 Auriol V. Mills 259, 279 Alexander v. Dyer • 139 Aveline v. Whisson 33 Alford V. Vicker\- . 214 Avenell i: Croker . 164 Allason v. Stark . . 16, 26 Allen V. England . • 38 V. Taylor 93 B. V. Flicker . 164 r. Sharp 172 Altham's Case 63, 176 Bacon v. Gyrling . Co Amitt V. Breame • 65 Badeley v. Vigurs 197, 263 Anderson v. The Midland Eail- Badger r. Ford 10 way Co. . . . 45 , 50, 70, 141 r. Sliaw 250 Andrew v. Hancock 127 Bagge ?•. Mawby . • 157 Andrew's Case . 266 Bagot V. Bagot . 176 Andrews v. Paradise . ■ 94, 95 Bagshaw r. Gilliard . 162 V. Russell 164 Bailey 2: Bradley . 138 Angersteiu v. Handson loi, 179 V. De Crespigiiy . . 78, 87 Ankerstein v. Clark 143 V. Hobson . . 185 Anon 21, 24, 266, 267 V. Cathrey . 24 Anthony r. Breton Market ( jO. . 102 Baker v. Gostling • 8,76 Appleby V. Myers . 78 V. Greeidiill . 81 Appleton ?•. Doily • 145 V. Holtzapfell • 139 Archer r. ISrarch . • 92, 93 Baldwin's Case 62 Arden i\ PiiUen . 100 Ball r. Cullimore • 69, 71 V. Sullivan . • 38, 49 Bally V. Wells . 87 Ards V. AVatkin . . 263 Bam ford v. Creasy . 183 Armfield v. Wliite 80 Bankark r. Tennant 190 Arnold v. Bidgwood 17 Banks r. Rebbeck 69, 221 r. Ridge . 281 Bandy v. Cartwright . 102 Arnsby v. Woodward . i 06, 202, 203 1 Bannister v. Hyde 157. 158 XVUl INDEX TO CASES CITED. PAOF. 261 250, 251 229 99 183 178 Barclay v. Eaine . Barclay, ex parte . Bardeu's Case Barfoot V. Freswell Bargent v. Thompson . Barker, in re I'. Hodgson .... 98 Barlow v. Rhodes . . .57, 58 Barnard r. Godseall . . . 259 Barr}- v. Xugent .... 44 r. Stanton .... 88 ]5arwick v. Foster . . . 136 Basten i'. Carew . . . 223, 224 liastow k, Co., in re . . . 275 Bassett i: Lewis .... 65 Batchelor v. Gage . . . . 259 Bateman v. Allen ... 6 Bates V. Dandy .... 278 Bath urst (Earl of) i-. Burden . 184 B ixter V. Brown .... 44, 48 Bayley v. Bradley . . 40, 138 V. Fitzmaurice ... 67 Baylis v. Dyneley . . 20, 21, 25 • V. Foster .... 169 V. Le Gros 82, 105, 106, 182, 202 Baynes i\ Smith .... 140 Baynham r. Guy's Hospital . 95, 96 Beale v. Sanders .... 38 Beattie v. Quirey . . .181 Beaty v. Gibbons .... 234 Beardmore v. Wilson ... 8 Beanchamp i: Winn ... 52 JJeaufort (Duke of), v. Bates . 184 Beavan v. Delahay 156, 231, 232, 233 V, Macdonell . . . 18 Beck V. Eebow .... 244 Beckett r. Bradley . . .112 Bedford Union v. Bedford Im- provement Commissioners . 80 Beeley v. Perry . . . 254, 259 Beere v. Windebanke . . 30 Bees V. Williams .... 198 Begbie v. Hayne .... 144 Belaney 2: Belaney . . . 198 Belcher v. M'Intosh ... 84 Belfour v. Weston . . 139, 179 Bell r. Nixon .... 30 Ijellasis ?•. Burbrick . . . 139 Bellingham v. Alsop ... 9 Bennet v. Bayes .... 160 V. Herring .... 182 V. Ireland .... 179 V. Robins .... 145 r. Womack . . . .80,91 Benson v. Chester ... 29 Bentley, ex parte, re West . . 250 Berkeley (Earl) ■;;. Archbishop of York ..... I5ermondsey, Vestry of, v. Brown I'.errey v. Lindley Berry v. Taunton Bertie v. Beaumont 197 26 36, 37. 39 37, 139 Berwick (Mayor of) v. Oswald Bessell v. Landsberg BethoU V. Blencowe Bettisworth's Case Bevan v. Habgood Beverley v. Lincolnshire Gas Coke Co. . Bevil's Case Bickford v. Parson Bickuell v. Hood . liidder v. Trinidad Petroleum Co, Biggins V. Goode Bignell i'. Clarke Birch V. Wright Bird V. Baker V. Elwes V. Higginsor 138 173 258 48 248 169 i6r 8, 38, 70, 138, 202 . 62, 72 . 81, 82, 191 29. 33. 76 PAGE 78 196 13, 211 57 V. Gt. Eastern Railway Co. . 31, 51 Birmingham Gas Light Co., in re Adams .... 271, 274 Bisco V. Holt . . . . 13 Bishop r. Bryant . . 164, 168 V. Elliott . . . 244, 248 r. Howard . . . 37, 194 Blake V. Gold .... 53 Blatcliford V. Cole . . 64, 225 V. Plymouth • • • 59 Blight V. Page .... 78 Bliss V. Collins .... 130 Blount t'. Pearman . . .112 Blyth V. Dennet .... 214 Boase r. Jackson . . .113 Bodley v. Reynolds . . . 173 Bogg V. Midland Railway Co. . 96 Bolton's Case, irt re . . .117 Bond V. Rosling .... 49 V. Kenniugton . . . 153 Bonslier v. Morgan . . . 28, 29 Boodle V. Campbell . 125, 131, 202 Boone v. Eyer .... 103 Booth V. Alcock ... 57 Booth V. Macfarlane . . . 227 Boraston v. Green . 232, 233, 234 Boulton V. Reynolds . . lOo, 173 Bowen i: Owen .... 160 Bower v. Hill .... 57 Bowes V. CroU .... 39, 79 Bowles 7. Poore .... 143 Bowman r. Taj-lor ... 40 Boyd v. Shorrock . 249, 250 Boydell v. M'Michael . . 248, 274 Bracebridge r. Cook . . . 199 P>ra(ibury r. Wright . . .73, 80 Braithwaite r. Cooksey . . 156 V. Hitchcock . . 37, 38, 141 Bramley v. Chesterton . . 216 Branscombe v. Bridges . . 171 Brantom v. Griffiths . . 148, 250 Brashier v. Jackson . . . 103 Brason r. Dean .... 78 Brawley v. Wade . . .146 Brecknock Cauul Co. v. Pritcliard 83 INDEX TO CASES CITED. XIX PAGE Bredell v. Constable . 145 Brennon v. Bolton . 189 Brereton r. Tuocliey . 95 Brett V. Cunibeilaiul . 257. 277 Brewer v. Hill 29, 48 , 86 V. Eaton 205 Brewster v. Kitcliell . 78, 128 V. Kitchin . 80 Bridges v. Hitchcock . . 95 V. Potts 135 V. Smyth 141, 202 Bridgland r. Shapter . 33 Briggs r. Sowry . 274 Bristol (Dean of) v. Jones 84 Britton v. Cole . , 23 Broadwood, ex parte . 249 Brocklington v. Saunders 39, 234 Broking v. Cham 94 Bromley r. Holder , 155 Brook V. Biggs 256 Brooke v. Bulkeley 260 Brooks V. Foxcrof t . 9 Broom v. Hore 263 Brown i'. Arundell 151 V. Burtinshaw 72, 198 V. Blunden . 83 V. Glen 158 V. Powell , 160 V. Raymond 87 V. Shevill 151, 153 V. Storey 144, 256 V. Tighe 95 V. "Warner . 33 Browning v. Dann 158 V. Wright . 94 Brudnell's Case . 194 Brummell v. Macpherson 89 Brunswick (Duke of) r. Slo\ vman 158 Brydges r. Kilbourue . 185 Buck V. Nurton . 57 Buckland i\ Butterfield 244 V. Hall . 86 V. Papillon . 87 Buckley v. Kenyon 75 V. Nightingale 266 V. Pirk . 260 V. Taylor 155 Bull V. Barker 160 V. Sibbs 139 BuUen v. Denning 59 Bullock V. Dommitt . 83, 179 Bulwer r. Bulwer 230 Burchell v. Clark 63 V. Hornsby . 182 Burdett v. "Withers 84 182 Burn V. Cambridge 9 V. Phelps [31, 202, 212 Burne v. Kichardson . [41, 146 156 Burnett r. Lynch t02, 188, 259 Burrowes v. Gradin 48 Burt V. Haslett , 251 Burton v. Barclay 139, 98, 2 00, 260 Burton r. Brown . Bute (Marquis of) v. Thompson Butt's Case .... PAoa 78, 97 141 Cadogan v. Kennett Caldecott v. Smithies . Calthorp v. Heyton Calvaleiro v. Puget Calvin's Case Camden (Marquis of) v. B bury ... 37 Campbell v. Loader I'. Leach V. Lewis t\ "Wenlock . Cannan v. Hartley Cannock v. Jones Cannon v. Smallwood . Cantley v. Powell Capel V. Buszard . Capenhurst v. Capenhurst Garden r. Tuck Cardigan (Earl of) v. Armita Carnarvon v. "Villebois Carpenter v. Buller V. Collins V. Parker Carr v. Benson . . 31,43 Carter v. Carter . Cartwright's Case Carver v. Richards Gary v. Mattliews Caton V. Coles Catt V. Tourle Gattel V. Carrol . Gattley v. Arnold Caudeil IK Shaw . Caulfield v. Farr . Chadwick r. Clarke Challoner v. Davis Chamberlaine v. Turner Chamberlayne's Case . Chamberlayue v. Dumorier Chandler v. Doulton . Chanter v. Dickinson . Cliantflower v. Priestly Chaplin v. Southgate . Chapman v. Beecham . V. Bluck r. 'I'owner Chauntler v. Robinson Chatfield r. I'arker Cheetliam v. Hampson Clielsea "Wateiworks v. Bowley Chesterfield (Earl of) v. Bolton Chetham v. Williamson Chidley v. Churchwardens West Ham Chilcote V. Youlden 27, 132 216, 232 95 107 24 iitton- . 38, 76, 138 221 75 260 100 197, 198 84, 191 172 190 154 78 53 58,59 197 42 71 51,98 25, 168 9 107 144 279 91, 92 4 33, 135 277 94, 217 "3 195 53 162 169 186 251 94 94 64 44 112 182 281 182 127 179 6i 47, 243 219 XX INDEX TO CASES CITED. PAOE Child V. Cliambcrliun . 144, 165 t'howne r. Baylis 19 Cholmoiulelcy (Lord) v. Clinton • 70 Christopher v. Spark e . 70 Christ's Hospital (Governors of) V. Harrild • 73. 80 Cliristy r. Tancred 139, 216 Church V. Brown . 86, 87 Churchward r. Ford . . . 138 Claridge v. Mackenzie . 112, 256 Clark i: Gaskarth • 147 r. Crownshaw . 247 Clarke r. Clarke . 9 i: Cogge 27, 29, 30, 33 V. Fuller . . 67 r. Ilolford . . 124 V. lloystone . loi, 232 r. Svdcnhani . . 63 r. ^^^ebb • 139 V. Westrope • 234 Clarkson v. Earl of Seal •borough . 133 Clayton r. Blakey • 36, 69, 71 V. Burtenshaw 47, "3 ■ V. Corby 57 Clerk V. Clerk . 9 Clifford V. Watts 78, 198 Climie v. Wood . 240, 250 Clinan v. Cooke . . . 67 Clowes V. Hughes 144 Clnlow, re . • 133 Clun's Case . 124, 132 Coal Consumer's Association, iti re 275 Cobb V. Stokes 211 Cochrane r. M'Cleary . 59 (locking r. Ward . . 251 Cockson r. Cock . 261 Coe r. Clay . 36, 103 Coffin V. Coffin . . 186 Colbeck V. The Girdlers ' Company loi Cole V. Surrey . 123 Colgrave v. Dias Santos 243. 244, 248, 250 Cole's Case . 261 Coles V. Filkington 36, 190 Collett V. Curling . 123 Colley V. Streeton . 181 Collier v. Nokes . , 124 Collins V. Crouch . 268 V. Harding . 27, 28, 130, 132 V. Sillye . 86, 88 Coomber v. Howard • 123 Coombs V. Beaumont 249 Congham r. King . 263 Congleton (Mayor of) r Pattison 91, 261, 262 Constable v. Nicholson 26 Cooch V. Goodman 33 Cook V. Guerra . 25s, 256 Cooke V. Loxley . 256 Cooper V. Woolfit 231 V. Cooper . 141 V. Eobiuson . . . . 65 Cooper, ex parte, re North L Railway Co. Corder t'. Drakeford Cornish v. Searell r. Cleife I'. Stubbs Cosser v. Collinge Coster V. Wilson . Cotesworth v. Spokes V. Bettison . Cother ?'. IMerrick Coupland v. Maynard Cousins r. I'hilipps Cowan V. Milburn Coward r. firegory Cowper ?'. Fletcher Cox V. Bent V. Leigh V. Painter Cramer v. Mott . Crane ^'. Taylor . Crawley v. Price . Creak v. Brighton Crockerell v. Owerell Crockford v. Alexander Croft v. Lundey . 87, Cromwell's Case . Crosier v. Tonilinson Cross V. Elgin V. Jordan Crosse v. Raw Crossley v. Lightowler Crouch V. Fastolfe V. Kegoning Crowley v. Pitty , Crowther v. Ramsbothi Crusoe v. Bugby . Cudlip V. Rundall Culling V. Tuffnal Culwich r. Swindell Gumming v. Bedborou; r. luce . Curling v. Mills . Curtis r. Spitty . V. Wheeler . Cust V. Middleton Cuthbertson v. Irving Cutter V. Powell . Cutting V. Derby . D. 37. PAGE ondon 108 113 256 83 194 257 155 204, 205 172 77 196 97 107 84, 191 9 69, 141 153 163 158 13 104 222 71 248 200, 214 104 153 50 204 81 57 124 259 97, 220 159 86, 88 59, 69 248 250 128 19 56 263 8, 141 12 10, 112, 202 103 124, 210, 213 Daglish, ex parte .... 248 Dalby r. Hirst . . 179, 232, 234 Dale's Case ..... 6 Daltonr.Whittem 149, 150, 169, 172, 251 Dancer r. Hastings . . . 145 Dangerfield v. Thomas . . 273 Daniel, re, ex parte Ashby . . 250 V. Gracie . . . 74, 140 T. Stepnej^ .... 263 INDKX TO CASES CITED. XXI PAGE Daniels r. Davison 7' Danii V. Spurrier . 73 Darlinjjtou v. rritcliard III 1 »;irby r Harris . 149. 150 Darcy (Lord) r. Askwith 175. 177 Da vies c. Aston . 169 V. Coiinop 233 r. Powell 153 r. Sear 30 r. Unilerwooil 106, 181 Davis V. IJurrell . 217 r. Eytou 87, 230 r. Gyde 125 r. Jones . 50, 241, 243, 257 7'. Mason 92 D.ivison (f. Bromley v. Stanley 64, 197 V. Gent 198 r. AV'ilson 217 Dawson V. Cropp . 157 re 250 X'. Dyer 187 V. Fitzgerald 193 Day V. Duberley . 278 r. Fynn 56 Dean i: Allalley . . 239 241, 247 Deane v. Clayton . 192 Decharnis r. Horwood . 9 Deeriiig r. Farriiigton 99 Dejoncourt v. Kogers . 146 Delaney v. Fox . 112, 202 De ]\Ipdina r. Norman 102 De Nicols T. Saunders . 255 Deiidy r. NichoU . 205, 214 Denn v. Kawlings 212 7: Hopkinson 209 ■ d. Jacklin r. Cartwright 72 , 74 Dennett'. Atherton 95 ] >eniiis V. Laurie . 87 Dent r. Dent 31 Derisley v. Custance . 266 Devonshire (Duke of) v. EaiTOW Hematite Steel Co. . 128 Digl»y r. Atkinson 85 Dinsdale v. Isles . 8, 66 , 71 Doliliyu V. Soniers . 2g , 33 Dodd V. Acklom . 198, 200 r. Morgan . 162, 172 Dodsnn V. Sainmell 269 Doe (/. Abdy ?'. Stevens 105 '/. Agar V. Brown 64 tl. Aiigell V. Aiigell 157 (/. Antrobus r. Jepson 166 (I. Armstrong v. "Wilkinson 208 r. Ashburner 44 (/. Aslin r. Summersett 9, 213 il. Bailey v. Foster 16, 219 cf. Baker v. Jones 88, 200 (/. Barker v. Goldsmith 201 t/. Barber v. Laurence . . 201 d. Bartlett v. Kendle . 107 d. Barney v. Adams 10 20 1 (/. Bastow r. Cox 37, 70, 71 TAliK Doe obell . (/. Robinson r. llinJe . d. Roby r. Jlaisey d. Rodd V. Archer d. Rogers v. Cadwallader d. Rogers v. Pullen d. Rudd V. Gelding . d. Rutzen v. Lewis d. Savage v. Stapletou . d. Sliaw V. Stewart d. Sheppard r. Allen . d. Shore v. Porter d. Shrewsbury v. Wilson d. Simpson v. Butclior ■ d. Smelt i: Furcliaw . d. Smith r. Galloway . d. Snell V. Tom . d. Spencer v. Godwin . d. Spicer v. Lea . V. Spiler d. Stanway v. Rock d. Sturgess v. Tatchell d. Taylor v. Johnson . d. Tennyson v. Lord Yar borough d. Tlionias v. Roberts . (/. Thompson r. Amey . d. Tilt V. Stratton (1 'J'immis r. Steele (/. Tomes ?'. Chamberlaine d. Tressider r. Tressider d. Tucker v. Morse d. Vaughan v. Meyler . d. "Wadmore r. Selwyn <7. Walker r. Groves . (/. Warthman v. Sliles . d. M'aruer r. Brown d. Waters v. Houghton (/. AVestmoreland r. Smith d. Wlieeldou r. Paul . (/. AVhaj'nian r. Chajdin (/. Whittaker v. Hales . d. Wilkinson v. Goodier d. Williams v. Cooper . {/. Williams v. Humphrey d. Williams v. Pasquali d. AVilliams v. Lloyd . d. Williams v. Smith . ,/. Wyatt r. Stagg d. Wilson V. Phillips . (/. Wright r. Smitli . d. Wyudham v. Carew PAor :oi, 213 43 212 201 18, 209 13 45 36,38 10, 213 ir 211 73 70, 2 12 209 70 70 201 205 66 273 14 4 204 54i 55 70, 212 105 209 210 69 17 205 i3> 14 21 33, 194 39, 212 . 62, 63 69, 212 II 4 130 66 44 212 33, 211 113 141 203 10, 213 70 70 207 21S 207 26 210 196 04, 201 256 87, 105 208 f) r. Lady 39, Doidge V. Eowera Dolby r. Isles Dollcn r. Butt Donellun r. Read Doran v. Carroll . Dorrell ?•. Collins . Doughty r. Bowman Dowell r. Dew Downes v. Cooper Downshire (Marquis o Sandys Dowse i\ Calu Drake r. Mitchell V. ilonday . r. Braddyll . Drant v. Browne . Draper i'. Crofts . V. Thomson . Drue V. Baylie Druce v. Dennisou Drummond i-. Sant Drury ;■. ilacnamara V. Jloliiis Duck V. Braddyll Dudley V. Folliott Dudley (Lord) v. Ward (Lord) 241, Duigan v. Walker Dumpor's Case V. Syms Dumergue r. Ramsay Duncomb v. Reeve l)unk V. Hunter . Dunn r. Bryan r. Low . V. Sayles ?'. Spurrier . Dunstan v. Berwell Duppa V. IMayo 124, 136. 155. 202, Durham and Sunderland Railway Co. V. Walker .... Dyke v. Sweeting Dykes v. Blake .... E. Eadon ?•. Jcffcock East r. Harding .... East India C'onipany i: Vincent . Easterly v. Sampson . Easton V. Pratt . . . 11, 84, Eaton V. Lyon .... I'. Southby .... Ecclesiastical Commissioners r. Merrall 11 of Ireland r. O'Connor Edge V. Strafford . .35, 36, Edward r. Hodges Edwards ?•. Countess of Warwick V. Dick 3<3, 42, 47, 177, 185, PACE 37 112 77 76 185 59 262 190 186 82 125 43 248 113 216 158 146 8 216 103 184 150 94 246 92 206 83 247 162 138 186 164 103 4 277 206 53 267 56 4 261 I 8 96 153 ,36 13' '38 223 132 "13 XXIV INDEX TO CASES CITED. PACK Kilwanls v. IMilliank . . . io8 Egler V. Maistlen .... 137 ];ichi(lt;e r. Stacey . . . 157 I''40, 2 41, 242 V. Forbes 229 Fiske V. Cam])ion 131 Fitzgerald i: Fitzgerali I 8 Fitzherbert v. Shaw 2 39, 247 Fleming v. Snook 184 Fletcher v. Dodd . 82 Flight V. Glossop . 262 Florence r. Robinson 72 Foley V. Addeiiliroke 2 42, 247 Folkingham v. Croft 86, 87 Foord f. Noll 160 Foote V. Berkeley 65 Foquet r. Moore . 197 Ford V. Tynte 186 Foster V. Mapes . 94 Fowell V. Tranter 73 Fowle V. Welsh . 94 Fox V. Pursell 188 v. Swann 88 Frame v. Dawson 189 Francis Wyatt 153 Franklin v. Carter 123 V. Howes 259 Franklinski v. Ball 10 Eraser v. Skey 102 Freshtield v. Heed 109 Frusher v. Lee 149 Fryer v. Coombs . . IC9 Fuller V. Abbott . 127 Furley v. Wood . 209 Furneaux z: Fotherl>y • 154 Furnival v. Crewe 95 Furnivall v. Grove 197, I 98, 200 Gage V. Acton • 199 V. Smith 177 Gale V. Bates • 234 Galloway v. Bird . 172 Gambrell r. Earl Ealmouth 157 Gardiner v. Williamson • 33. 76 Garman v. Chapman . Garth v. Cotton . . . i 86, Add. Gas Light Company v. Turner 78, 107 Gaston V. Frankum 24 Gaters v. Madeley 277 Gearns v. Baker . 61 Geekie v. Monk . . 38 Gent V. Cutts • 174 INDEX TO CASES CITED. XXV George v. Clianibers Gothin V. Wilks . Gibbous V. Snape Gibson r. Doeg r. Kirk . . . 137, V. Smith V. Ireson r. AVells Gie !•. liider Giflforcl r. Young . Giles r. Hooj>er . V. Spencer Gill V. Giiwin Gillingbani ?•. Gwyes (rilmau r. Elton . Gisl)ouru r. Hurst Gladnian r. I'lunier Glover v. Cope Godfrey r. Tucker r. Little Goff r. Harris Golt r. Gaudy Goode V. Harrison V. Howells . Cioodright d. Carter r. (/. Charter v. Cur V. J\lark r. Vivian v. Richardson ?'. Davids Goodtitle r. IJadtitle (J. Clarges i: Huniicar d. Dodwell v. Gibbs V. Herbert . V. ]\Iorse V. "Way Goodwin V. Longhurst (iordon r. "Woodford . Gore V. Bowser V. Gibson V. Lloyd Goreley, ex parte . Gorges v. Stanfield Gorton v. Falkner 149, V. Gregory . Gott V. Gaudy Gould V. Bradstock Gouldsworth v. Knights Gourlay v. Duke of ttouierset Cirace, ex parte Graham v. Wade . V. Allsopi> Granger r. Collins Cirant v. Oxford Local Board V. Ellis Grantham v. Hawley . Graveuor r. Woodhouse Graves r. "Wold . Gray v. Stauion . < ireat Ship Co. , in re. The Great Western Kly. Co. v. Smith Green v. Eales . . 84, Strahan Iwent 13, PAGE 172 274 4 89 ;8, 139 186 150 76, 182 107 207 100 155 46, 147 154 150 150 256 259 280 56 238 191 20 29 20 205, 214 72, 104 59 • 63, 73 201, 206 206 107, 108 . 62, 63 71, 212 112 • 44,48 280 18 123 . 178 177 153, 239 261, 263 100 . 158 16 . 87 . 21, 25 127 103, 188 • 43. 51 • 157 • 147 • 255 231 197 • 275 199, 203 184, 191 PAr.K Grceu v. James . Ill 259 Greene v. Cole 176 Greenawjiy r. Hart . 77, 1 12 262 Greenwood r. Tybor 7 Gregory r. Doidgo 2;'> r. AVilson il? Grey de Wilton (Lord) r. Saxon 1 84 1S5 Griffin v. Scott 164 r. Staidiojie . 104 Ciriffinhoofe r. Dunbar 12 1 Griffith r. Harrison 107 Griffiths r. Puleston . 156, 231, 233 r. Stephens . 172 Grimman v. Legge 198, 120 Grim wood v. Moss 206 Grosvenor v. C!reeu 257 Grute V. Locroft . 9 Grymes v. Boweren 243 Guardians Bedford Union r. Bed- ford Improvement Commis- sioners .... 80 Guardians Woodbridge L^nion V. Guardians of Colueis 37 Gudgen v. ]>essett ^37 Gulliver d. Tasker r. Burr . 72 Gully V. Bishop of Exeter . 53 Ciundry v. Feltham 192 Gunter r. Halsey 189 Gutteridge ?-. Munyard 84 Gwynn, in re . . . 271 Gybsou V. Searle . "28, 197 H. Hadden v. Arrowsmith ir Haines V. ■\\'elch . 229 Hale, ex parte 274 Hall r. Burgess . 135. 138 198 Hall V. Betty 102 Hall V City of Loudo n Bi cwery Comi>auy . 102 Hall V. Lund 51 Hall v. Seabright . 43 Haldane v. Johnson 125 Hallen v. Ruuder 239, 245, 249, 251 Hallifax v. Chambers lor Hamei ton V. Stead .' 69, 198 Hammond v. Dodd 94 Hancock v. Austin • 42, 50, 140 V. Caflfvn 45. 188 Hand I •. Hall 35 Hands r. Slanoy . 25 Harbin r. Barton . 9 Harcourt v. Wyman 277 Hardin V. ?•. g V. Hall . C-rethorn . Wilson 166 216 58 Hardy V. Robinson 277 Hare r Cator Burgess , 263 95 Harley V. King . 259 XXVI IXDKX TO CASES CITED. Harmer v. Bean . Hurnett v. ]\I:iitlaiul Harrington v. Itanisay V. Wise Harris v. Goodwyn V. Greatlied . V. Jones V. Hiding Harrison ?'. Barnby V. Barry V. Blackburn Harrow School v. Alderton Harper v. Taswell Hart V. Leach . . r. AVinilsor . Hartshorne r. Watson Harvey v. Brydges V. Harvey V. Pocock Haslett V. Burt . Hatch V. Hale Haths V. Ash Havergill v. Hare Hawkins r. Kemp V. Walrond . Hawks r. Orton . Hawtr}' V. Butlin Hay ?•. Palmer Hayes v. Bickerstaff Hayling v. Okey . Hayne v. Cummings 77, V. IMaltby . Hayward r. Haswell Head v. Starkey . Heap V. JJarton Hearne ?■. Allen . V. Tonilin Heatherly d. Worthington i Westou Hegan v. Johnson Hele i: Bexley Hellawell v. Eastwood Hellier ■)•. Casbard r. Sillcox Heiiistead /•. PhcEuix Gas Co Henderson v. Hay V. Mears V. Squire Henstead's Case . Heme v. Benbow Hew V. Greek Hewitt r. Isbam . Hewlins v. Shippam Hicks V. Downing Hide r\ Skinner . Higham r. Baker Highani v. Cooke Hill V. Barclay V. Grange V. Mancliester and S Waterworks Company V. Saunders . PAGE . . 64 100, 176, 182 220 04, I 140, 44 325 54 83 61 142 164 34 176 164 166 100 06, 107 217 243 169 247 160 65 43 107 149 187 251 132 94) 102 231 06. 182 78 47 81 46, 247 57 38 9 48, 138, 141 • 38 50, 238, 244 100. 268 277 87 202 216 7, 9, 71 176, 182 79 50 33 8 96 57 65 183 123 .Iford 40 7, 257, 277 PaGB Hill?-. Tupper . . . • 3') 5^ Hills V. Laming .... 40 V. Street .... 165 Hilton V. Greene . . . 192, 193 V. Grenville .... 62 Hinchcliife v. Earl of Kinnoul . 57, 64 Hiiiih; ('. Gray .... 92 Hindley r. Emery . . .184 Hirst r. Horn . . . 210, 226 Hitchcock (.'. Coker . . .92, 93 Hitchman i\ Wilton ... 70 Hobson V. IMiddloton ... 94 Hoby V. lioebuck . . . 141 Hodges V. Lawrence . . . 154 Hodgkinson v. Crowe ... 87 Holcombe v. Hewson ... 92 Holding r. Piggott . . . 232 Holford r. Hatch . . 86, 263 Hoi gate i'. Kay . . . .131 Holland v. Hodgson 238, 240, 241 V. Falser Hollis V. Carr Holmes v. Blogg . V. Day . Holtzap])el v. Baker Hool V. Bell Hopcraft v. Keys Hope V. Booth V. Mayor of Gloucester Hopkins V. Helmore V. Prescott . Hopwood r. AVhaley V. Barefoot . Horn V. Baker Horner v. Graves Hornidge r. Wilson Hooper v. Clark . , ex fiartc Horsfall V. Hey . V. Testar Horton V. Westminster ment Commissioners Houghtwn r. Koenig . Ifow V. Kennet . Howe V. Scarrott V. Synge Howell V. Bell . V. IMaine Howlett V. Strickland . Howton r. Fearson Huddlestone v. Woodroffe Hudson V. Hudson V. Walker Huff ell V. Armistead . Hughes V. Chirke and Crowtlier's Case V. Hughes ?;. Met. Kly. Co. . V. Palmer V. liobotham Humphries v. Brogden 250 251 123 99 2, 125 39, 72 179 145 141 38, 69 95 23 20 268 80 247 93 67, 268 51 89 249, 251 82 Improve 40 21, 273 139 7, 276 127 145 277 100 30. 33 52 17 220 72, 212 79. 121 194 145 . 183 . 166 195. 198 61 INDEX TO CASES CITED. XXVI 1 Hungeifonl r. Clay V. Beecher . Hunt V. AUeu V. Bishop r. Colson V. Cojie V. Daiivers . V. Remnant . r. Singleton . Huntley v. Russell Hurst V. Hurst Hutchins r. Cluimbe V. JIartin V. Scott Huton r. Huton . Jiultoa i\ "Warren Hutt V. Morrell . Hyatt r. Griffiths Hvile V. Graham . -^— V. Hill . V. ]\[oakes V. Watts 258, PAOK 110 40 94 ;6i 38 202 95 . 258 13 176, 239 . 234 157, 168 196, 197 123 88 '■5, loi, 176, 179, 232, 234 148 194 , 51 127 198 10 S ^bbs r. Richardson 216 Ingulden r. ]\Iay . . . 96 Inman i: Stamp . Isherwood r. Oldknow • 35, 36 • 11, 77, 107 Ive V. Sams . 60, 197 Izon V. Gorton 139, 179 J. Jack r. Srintyre . Jackinan r. Hodhson v. Jackson Jernian v. Orchard Jerritt v. AVeare . Jervis v. Tomkiuson Jevens r. Harridge Jewel's Case Jewell v. Stead . Jinks V. Edwards Job V. Banister . John v. Jenkins . Johnson ?•. Faulkner r. Jones V. Uplain r. Warwick . Johnstone ;•. Huddlest Jolly v. Arbuthnot r. Handcock Jones V. Chapman V. Carter V. Clerk r. Davies V. Edney V. Hill . r. Jones — — V. ]\[arsli r. Mills r. IMorris r. Nixon r. Owen r. Phipps r. Reynolds . r. Shears r. Thompson d. Trimleston v. 2s V. Verney Joule V. Jackson . Jourdain r. Wilson Jurdain v. Steele Juste V. Darby Keane r. Boycott Kearsey v. Carstairs Kearsley ?•. Oxley Keech v. Hall Keen r. Priest 153, Keene r. Dilke Kelly r. Clubbe . r. Paterson . Kemp r. Cruwes . V. Derrett Kendall r. ISaker , Kenney r, M:iy Kent Coast Ity. Co. Chatham, & Dover Ry Kensey r. Langhani Kepp r. Wiggett . Kerby v. Harding Kerslake v. White Ketsey's Case PACK 43 • 53, 63 94 62, 66, 97, 98 24 77 92 36, 103, 189 96, 183, 188 47, 197 147, 152 125 160, 173 17 2X1, 227 38, 112 276 219 06, 202, 206 8 98, 199 92 176 87 213 212 126 2X1 22X 210 47, '39 98 140 43 4 151 20 r 9 197 . 267 10, 70, 212 69, 170, 172 173 139 67 146 72, 209 75 66, London Co. J 64 12 28 42 159 55 20, 25 57' XXVIU INDEX TO CASES CITED. Kettley v. Elliott Key ex par!e Kidwelly v. liraiul Kimptoii r. Eve . Kiug V. England . i\ Jones Ivingdon v. Nottle Kingsbury v. Collins Kingston's (Duclioss of) Case Kinlyside v. Thornton Kinnersley r. Orpe Kinti'ea v. Perston Kirtland v. I'ouusett ICnevett v. Poole . Knight r. I'ennett r. Egerton . and Norton's Case V. INIory Knowles r. Jjlake — — ?•. I'owell Kooystra v. Lucas Lady Montagiie's Case Jjaing V. ]\Ieander Ladd V. Thomas . Lainson v. Treinere Lake r. Smith Lamb v. lieaston . Lambert v. Austin V. Norris Laming v. Laming Lampet's Case Lancaster (Duchy of), C Lane v. Dixon Lane's Case . Langley v. Hammond Lannock ?'. Jones Lant V. Norris Lanyon v. Crane . Lampiere v. M'Intosh Latham v. Attwood V. Speddiijg . Lawton v. Lawton V. Salmon Lay V. Mottram . Layton v. Harvey Leach V. Thomas . Leader v. Homewood Lear v. Caldecott . Leather Cloth Co. v. L Lee V. Cooke V. Gaskell V. Risdon V. Smith Leeds ?•. Cheetham Leftley v. Mills . Legh V. Hewitt . Lehain v. Philpot Lehmann v. M 'Arthur PACK 1 23 • 271 203, 263 . 184 . 165 266, 267 266, 267 229, 231 40 181 86 102 38,69 229, 231 31, 140 169 19 88 172 23 30,58 10 160 171 40, 42 226 S3 145 76 95 3 >f 22 . 150 33 • 30, 58 82 83 73 24 231 221 !4I, 2 42, 243 242 99 162 100 I 247 57, 168 t 92 157 249, 251 42, 249, 251 37, 38, 49 139 . 124 loi, 179 140 91 1 Leigh V. Heal J 7\ Lillie •('. Shepherd . Leitch V. Simpson Le Keux i\ Nash Lehain r. Pliilpot Letney t\ Holmes Levi V. Lewis Lewis V. Milliard . Liddy v. Keimedy Li ford's Case Lilley v. Harvey . V. Whitney . Lindsay v. Lynch Line v. Stephenson Lingwood V. Stowniarkut C- Lin wood v. Squire Lishden v. Wiusmore . Lisbourne (Earl of) v. Davies Litchfield r. Peady Liverpool Exchange Co., ex parte (The) Llewellyn r. Rous V. "Williams . Lloyd r. Cheetham V. Crisp V. Davies . . 143, V. Jones V. Langford . V. Rosl)ee ^^. Tomkies . Llynu Coal Co., ex parte Load V. Green Locke r. Eurze • • V. Matthews Lockwood T. Wilson V. Wood Loft V. Dennis Logan V. Hall London & N. AV. Railway Garnett &; N. "\\^ Railway Co. MacMichael Cotton Co., ill re . V. Southwell & Westminster Loan & Dis count Co. Liinited v. Drake (Mayor of) v. Hedger London (City of) v. Nash Longbottom v. Kerry . Lougher v. Williams . Lowe V. Griffiths r. Ross V. I'eers Lowndes ?•. Fountain . V. Beetle Lowthall V. Tomkins . Lucas V. Commcrford . ■ V. Tarleton . Lucy V. Levington Ludford v. Barber Lumley v. Hodgson PACK 52 , 234 142 91 259 140 141 i83 . ' 66 104, 203 60, 239 22 1 112. 63 189 99 78 73 199 216 34 279 £21 196 226 94 270 106 i83 71, 187 39, 26 179 257 91 21, 25 275 60 ' 199 84, 185 183 250 260, 266 25 38, 139 78 234 184 281 183, 260 159, 164 94, 102 4 IXDKX TO CASES CITKD. XMX PA(iE Luniley v. Metropolit in Hy. Co. 91 Luttrell r. Weston 10 Lux more v. Kobsou • •' 83, 181 Lyde v. Russell . 251 Lyon V. Hoed 64, III, 196, 198 r. Toinkins , 159, 165, 166, 167 r. Tonikies . 171 r. "Weldon . 164 Lyons v. Elliott . . 151 M. Mabie's Case 59 Macher v. Foundling Hosjii M'Garth v. Sbunnon M'Gregor r. Hugli Maekay v. Macietli IMacintosh v. Trotter . M'Leish v. Tate . Madden r. White ]\Iagdalene College (Case of) IMaitland v. Mackinnon IMakin r. Watkiuson . Maldon's Case IMallam r. Anlen . Mallory's Case Manbj' v. Long . V. Scott Mann r. Love joy . V. Mann Manning v. Fitzgerald I'. Lunn ]\Iansfield r. Blackburn (Earl of) r. Blackburne Jlantle v. Wollingtou . JLmtz V. Goring . Markby, i)i re . Marker v. Kenrick Markey v. Coote . Markham v. Stanford . Marlborough (Duke of) v. O INIarquis of Camden v. Batte Marsh i: Bruce V. Curteys . Marshall v. Pitman V. Powell Martin ?\ Gilham V. Roe . V. Py croft V. Smith Martyn v. Clue . I'. Williams Martyr v. Bradley V. Laurence . Marwood v. Waters Mary Portington's Case Mason v. Corder . V. Newland . Massay v. Goodall Masters v. Farris . Mather V. Eraser . Malhew v. Blackmore . • 195 • 251 S 246, 251 123 . 20, 21 13 • 51, 55 82, 191 41 123 • 255 144 20 . 141 • 36 • 54) 55 160 304, 305 41,247 9 84 135 i8i 71 30 73 69 259 36, 205 172 "3 182 246 189 39 84, loi, 260 557, 258 247 55 221 104 89 162 234 i63 249 99 !40 born e ubury lOI 239, 244 JIatthcws i: Whetton V. Goodday . IMatthias v. Mesnard l\Iaundrell, ex parte Jlaiind's Case i\Iayliu\v r. Suttle Mechelen v. Wallace Medina v. Norman ]Meggison v. Bowers • r. Lady C lands Melling r- Leake . Jlellor r. M'atkins Mellows r. I\Iay . Mennie r. Blake . ]\Ierrill r. Fianie • Jlerry, in. re ]\Iessenger r- Armstron 3Iessent v- Reynolds Messing v. Keniblc iletcalf r- Suholey Metropolitan Assurance Brown Meux V- Jacob ]\Iichel V- Hughes Middlemore v- Goodale I\Iiddleton ?■• Greenwood Jlidgley r- Lovelace I\liller V. Green . I'. IMainwaring V- Finlay Miles V. Fuiber . Milliner v- Robinson . Mills V. Gotf V- Trumper • V- East London Union V. Griffiths . Milner v- Milnes . ?'• Horton Minshall V. Lloyd Minshull ?•. Cakes Mitcalfe v. Westaway . Mitchell V. Lee MoUett V. Brayne IMidton V. Camroux MonfHet r. C(de . Monk )'. Cooper . Monks V. Dykes . Montague's, Lady, Case Moody V. Garnon Moon r. ('lark Moore r. Vmi\ of Plymouth V. Drinkwater ?•. Musgrove r. Clench Morewood v. Wilks Morgan r. liissell V. Earl of Abergavenny V. Hunt V. Pike V. Slaughfcon Morland v. Cook . Morley v, Pincombc 260 '50 180 24, 203 37 35 102 76 29 71 196 197 173 93, 99 12 !i5, 226 102 167, 171 280 260, 277 189 142 147 b5 190 147, 151 9 209 133, 135 i8r 86 277 94 24'5, 257 261, 262 59 140 198 18 93 83, 179 27, 72 59, 61, 130 191 169 64 13 19 46, 48 153 95 79 87 261 150, 153 XXX INDEX TO CASES CITED. PAOE Moroney ( . Macnamara 59 j\Iorns r. Colemau 9- V. Di mes 55 V. E.l giugton • 30 , 57 V. El lie 82 V. Moore 277 r. Ill ydydefed Colliery Co. 188 Morrison ' •. L'hadwick lOO, [31. 197, 202 ]\lortimer V. Hartley . 68 Morton r. Woods 70. 112, 143 Moss V. Gallimore 8, 38, 70, 144, t59, 255, 256 Jloule V. Garrett . 259 Mounsey v. Dawson 174 Mountjoy s Case . 74. 141 Mountnoj V. Collier 338 JNIousley I . Ludlam 233 IMoyle V. Movie . 176, 177 IMumford V. Gething 92 Muncey r. Dennis [OI, 232, 233 Murley v. M'Dermott 57 Murray r. King . 125 V. M vce 100 ]\Iurrell v. Milward 198 ]\Iusgrave r. Horner lOI, 185 Muspratt v. Gregory 151. 153 N. Nargett r Nias . 153 Nash V. Lucas . 157 V. T: hner 94 Naylor r. Collinge 247 2seale d'L eroux r. Parkin 56 V. M ickenzie . 20 , 43, 131 V. R itclifEe . . 82 ,84, 191 Neave v. INIoss 112 V. Avery 188 Nepean v Doe . 157 Neville r. Rivers . 277 Newbury White, in re, r. "\ rak] I'y 83 Newcombe r. Harvey . 76 Newling v. Dobell 93 Newman i: Anderton . • 27 ,76 140 Newton i . Allin . ^31 202 r. H arland . 217 Scott 274 Niblett V. Smith 149, 150, 172 241 Nicliolls, re . 24 Nicliolsoi V. Rose 188 Nickells v. Atlierstone 198 Nixon, ex parte . 180 V. F •eeman . 155 Noke's C ise 94 102 Norris v. Harrison 136 North r. Wyard . 143 337 Northampton Gas Co. r. Ti irnell 79 Northcot J V. Underhill 79 Norton, in re 271 V. Ackland . 259 Norway t •. Rowe . 184 Nott V. Bound 166 Nunn r. Fabian . Nuttall V. Staunton O. Oakley v. ATonck . Gates V. Frith Ubroyd v. C;ram])ton Odell V. Wake . Ognell's Case Gland's Case Oldershaw ■(•. Holt Onley v. Gardiner Onslej' V. Fisk Onslow V. V. Corrie Opperraan r. Smith Orme v. ]jroughton Osboru r. Garden V. Wickenden Osborne v. Wise . Owen V. De Beauvoir V. Legh Owens V. Wynne . Oxley i: James . PAfJE 3, 190 156 4, 37, 39 77 • 259 143, '45 229, 230 135, 203 57 53 84, 234 259 154 266 16 143 30, 33 157 47, 164 157 8, 72 27 Packer v. Gibbins 139. 179 Fackington's Case 186 Page t'. More . . s 09, 224, 226 Faget's (Lord) Case 64 Paget V. Foley 157 Pain i\ Coombs, . . i 88, 189, 190 Palmer v. Earitli . 80, 128 V. Edwards . 141, 263 Pannelr. Mill ■ 5^ , 61 Papillon V. I'.runton 213, 214 Paradine v. Jane . 176, 202 Paramour v. Yardley . 17 Pargeter v. Harris 40, 112 Parker r. Constable 211 V. Harris 74 V. Ibbetson . 104 V. Plumber . 52 V. Taswell . 103, 189 V. Webb 260 V. AVhyte . 91, 185 Parmenter r. Webber . 8, 87, 141, 196 Parrott r. Anderson 125 Parry, ex parte 275 ■- — 1-. Deere 112 i\ Duncan 154 V. Hnrbert . 88 V. Hindle , . 143, 277 Parsons v. Gingell 151 Partington r. Woodcock 144 Partridge v. Foster 280 Patrick r. Balls . 33 Patten v. Reid . 267 INbi:X TO CASES CITED. X.XXl PACK Paul r. ^leek 121 V. Nurse 87 Paxton v. Newton 183 Payler v. Homeishani 54 l*ayiie v. Hunidge 80 V. Haine .' 184, 182 Peacoi-k r. Purvis . 148, 153 Penrce v. Cheslyii 45. 113 Pearce r. jNIorrice 30 Pearson r. Glazebrook 221 Pease v. Chaytor . 173 Pellatt V. Boosey . 205 Peinberton v. ^'augllall 92 Peiifokl V. Abbot . 99, 267 Peuiiniit"s Case 15s, 206 Penniall v. Harborne 85 Pennington v. Cardale 106 Penry r. Brown . 82,^83, 244, 247 Pentoii r. Robart 239, 240, 241, 242, 246 Peijpercorn v. Hofnian 160 I'erbam, in re 223 Perkins v. Bradley 19 Perreau v. Bevan . 174 Perring v. Brook . 46 Perry v. Davis 105 V. Edwards . 94 Peter v. Kendall . 30, 197 Petrie v. Daniel . 233 I'etrie v. Dawson . 249 Philliljs V. lierrynian 173 i\ Pearce ■ ^; , 16 r. Bridge 203 V. Smith 175, 177 V. ^Vhitsed . 159 Philpot V. Hoare 260 I'hipps V. Sculthorpe 112, 198 Pierce v. Corrie . 87 Piggott r. Birtles '47, 153, 163, 169 Pigot V. Garnish . 16 V. Slratton . 188, 199 Pike V. Eyre 8 Pill)row V. Atmospheri c llailway Co . 40 Pilkington i\ Hoocings 160 V. Peach 24 V. Scott • 92, 93, 103 Pilton, ex parte . 223, 224 Pinconib v. Thomas 60 Pinero v. Judson . 45 I'inder v. Ainslej' 139 Pinhorn r. Souster . 70, 71 Pistor V. Cater • 3/ ,38 Pitcairn v. Ogbouruc i6 Pitcher v. Tovey . 268 Pitman v. Woodbury 78 Pitt V. Sliew 150, 164 V. Smith 18 V. Snowden . 145 Places. Fagg 239 250 Piatt V. Sleap 198 Playfair v. Musgrove 279 Pleasant v. Benson 199, 212 Pleazance v. Higham 47 Pluck V. Digges . Plunimer v. Whitely J'lj'inouth (Countess o mortou Pointer v. Buckley Polden V. Bastard Pollen V. Brewer . PoUitl V. Forrest . Pollock r. Stacey . Pomfret r. llicroft Pomery v. Partington Pool V. Duncomb . V. Neil . Poole V. Archer . V. Bentley r. Longueville INIayor of, v. Whi r. Warren Poole's Case I'ope V. Biggs Pordage r. Cole . Porplirey v. Leginglian Porris v. Allen Porter v. Swetnam Portman r. Harrell Postlethwaite r. Lewtli Potter V. North . Poulteney v. Holmes Powell r. Bees V. Smith v. Thomas Powley r. Walker Pratt V. Brett Preece v. Corrie . Prescott V. Jiouchcr Press V. Parker Price V. Dyer V. Salusbury r. Williams . V. Worwood . Prince's Case Prince v. Evans . Procter v. Sargent Progress Assurance Co Propert v. Parker Prosscr v. Phillips Proud r. Bates ]'roudlove v. Tweidow Pugh V. Arton V. Griffiths . V. Leeds, Duke of I'ullbiook V. Lawes Pulleu V. Palmer . Pullin V. PuUin . Pyer v. Carter Pyne v. Dor . Pyot V. St. John . Quarrington v. Arthur Quincey, ex. parte It I'liro" waite PAOB 146 135 132 i<^5 57 9' 140 3, 141 100 107 143 M3 179 441 146 279, 280 225, 226 241, 246 144 103 169 197 100 155 95 56 141 268 73 189 lot 184 141, 146 145 55 73 189 14 205 '7 209, 210 92 275 91 i'3 59 147 246 159 65 189 142, 143 53 57 178 239 246 xxxu INDEX TO CASES CITED. PAOE Rainsford v. Smith ... 42 Kamsbottoni ?•. Buckliurst . . 281 Kami ?'. Vaugliaii . . . 155 Kauds V. Clark .... 225 llaudal r. ]>eau .... 144 Kankiu v. Lay .... 189 Hannie r. Irving .... 92 Kashlei^di r. Williams ... 94 Kawlings v. Morgan . . 83, 258 liawson V. Eicke .... 48 Uaymond i: Fitch . . 266, 267 Rede v. Biuiey . . . 146, 151 V. Farr . . . . .106 Reed ?'. Deere . . . .113 Rees d. Powell ?•. King . . 204 V. Philipps .... 3 i: Erringtou . . . 201 V. King .... 204 Reeve v. Rird . . . .198 Reg. V. Shickle . . . . i53 Regnart v. Porter . . .140 Reid V. Parsons .... 106 Ren d. Hall v. lUilkeley . . 107 Rex V. Aldborough ... 8 — V. Aylesbury, wiih AValtou . 80 — V. Bardwell .... 38 — V. Chawton .... 68 — V. Cheshunt .... 38 — V. Collett .... 69 — V. Earl of Pomfret ... 75 — V. Eastbourne .... 24 — V. Filloughley .... 69 — d. Hall V. Bulkeley . . 107 — V. Herstmonceaux ... 72 — V. Holland .... 24 — V. Horn church . . . 10 — i\ Hoseaston .... 172 — V. Hull Dock Company . . 128 — V. Kelstern .... 38 — V. Leigh .... 176, 177 — V. Leuthall .... 30 — V. Loudontiiorpe . . . 244 — V. Mitcham .... 127 — V. Morrisli . . . • 42, 5° — r. Nicholson .... 30 — V. Oakley . . . . 16 — V. Old Alreaford ... 52 — V. Otley 239 — V. Saffron Walden ... 92 — V. Sewell ..... 223 — V. Sherrington . . . 16 — V. Sliipdam .... 37 — r. Smyth ..... 217 — V. Snajie ..... 38 — V. Spurrell .... 38 — V. St. Austell .... 75 — V. St. Duiistan's . . 243, 244 — V. Stamper .... 40 — V. Stock 37 Rex r. Sutton — V. Tli(jri> — V. Toj.ping - V. Welby . — V. Wcstbrook . — r. Winter Reynall, ex parte Reynel's Case Reynolds r. Oakley Richard.s v. Easto V. Richards . V. Sely • V. Harper Richardson r- Ardley V. l']vans V. Gifford i-. Hall. V. Sangridge Ricketts v. Weaver Rickman v- Johns Ridgway v. Lord Stafford Right d. Uassett v. Thomas d. Fisher v. Cuthell (/. Flower v. Darby d. Green v. Proctor (/. Lewis V. Reard Ringer v. Cann . Risley r. Ryle Roacli V. Garvan . V. Wadliam . Roads r. Trunipington Roberts v. Barker V. Davey r. Karr Robertson r. Norris Robinson v. Button r. Hoffman . V. Learoyd . V. Tongue V. Waddington V. Walter Robson V. Fliglit . Rockingham (Lord) v. Penrice TAnE • '6, 17 16 87, 247 10 ■ 74, 75 43 249, 274 30 146 . 178 • 277 43 61 . 176 80 • 33, 39 139, 279 38, 68, 69. 72 266, 267 145 149 43 209 211 43 69 54, 139 140 16 263 5t loi, 234 106, 202 53 276 53 142 40, 159, 28 164 153 21, 108 132, 133 Rodgers t'.Pai-kcr . 148, 164, 167 Roe d. Bainford v. Hayley . . 73 d. Bendale v. Summerset . "17 d. VAd'iv ■!'. Street . d. Brune v. Prideaux d. Conolly v. Vernon d. Dingley v. Sales d. Earl Berkeley v. bisliop of York . 213, 214 4 54 . 86, 88 Arcli- 197 d. Gregson v. Harrison 86, 87, 206 V. Harrison .... 89 V. Hayley . . . 260, 26 r d. Hunter v. Galliers . 86, 87, 274 d. Goatley v. Paine . . 205 d. Jordan r. 'Ward . . 4, 209 d. Parry v. Hodgson . . 16 d. West V. Davis . . 121, 203 V. Wiggs . . . .213 Rofley v. Henderson . . . 247 I \-i)i:x TO C ASES CITED. X.WUl PACIE 1 FAliE Rogers ?•. Dock ruinpaiiy at King- | Sharp r. AVaterhouse . 99, I '■"'3 stoii-upoii-Hull 2It 1: Key . . 281 V. Bilk in ire . • 154 r. Sharp 33 V. Humphreys 144, 254 Sharpe v. Poole . • 143 V. Pitcher 250, 281 Sliarp's Case 33 Jiolhtson r. Leon . • 45. 49 Shaw r. Bran 19 Rulpii V. Crouch . 188 V. Coffin 104 Kouch V. Great 'Western Itj' . Co. 87 i\ Kay . . 62 , 66, 281 Kowbotham v. "Wilson . 62 i: Steuton • 94. 95 Rowdon r. I^Ialtster 3 Sheecombe r. Hawkins io3 Rowe V. Young . 124 Sheen 1: Riikie . . 238 Rowls V. Gells . 123 Slielburn (Earl of) r. Biddulph 95 Rubery r. Jervoise . 96 Sliepl)erd i: Hodsnian . 30 r. Stephens . 267, 268 Slierrington r. Yates . • 277 Rumball i: Munt 16 Shillibeer r. Jarvis 190 Rushden's Case . . 138 Sliirley r. Newman 211 Rushworth's Case • 56 Shoplaiul r. Radlen 145 Russell V. Rider . • 157 V. Ryoler 16 V. Shentoa . 182 Shrewsbury's (Countess of) Case . 176 V. Stokes 262 Simmons r. Norton 176, 177 Ryan v. Clark 34 Simpson t: Butclier 4 V. Sliilcock . . 158 r. Clayton . r. Gutteridge V. Hartopp . 260, 263 17 149, 153 S. — ■ r. ilargitson Six Carpenters' Case . 68 160, 167 Sabbarton v. Sabbarton 108 Skarburg c. Pevenet . . 69 Sacheverell t: Froggat 77 Skidmore v. Booth • 159 Saint r. Pilley . 199, 247 Skinner, in re . 271 Salaman v. Glover . 36 Skull V. Glenister • 27, 33 Salisbury's (Rishop of) Case 12 Slack r. Sliarji 132, 200 Salmon v. Matthews . 76, 138 Slater c. Brady . 21 V. Swan 198 V. Stone 84 V. "Watson . • 251 v. Trimble . 2t Salop's (Countess of) Case . 178 Sleaj) i: Newman 263 Salter v. Bunsden 168 Sleddon v. Cruikshank 249 V. Grosveuor 25 Slipper V. Tottenham Ju ictioii V. Kidley • 40, 42 Railway Co. . 87 Saltoun V. Houston 99 Smith r. Ashforth 16S, 170 Sampson v. Easterby . 99 r. Ailkins . 16, 26 Sandell v. Franklin 66 r. Barrett II Sanders v. Karnell 39 r. Bole . 60 Sapsford v. Fletcher . • 125 and Bustard's Case 203 Saunders i\ Merryweatlier 10 c. Carter 184, 185 V. Musgrave 70 V. Chance • 234 V. AVatson 19 r. Clark . 213 Saville r. Bruce . 12 r. Compton . 94 Saward r. Leggatt . 84 V. Day . . 64 Say V. Smith 68 V. Egginton . . 258 Scarpelini v. Atcheson • 277 v. Eldridge . . 138 Scatlock V. Harston 182, 25s r. Goodwin . 157, 160, 171 Scholis r. Hargreaves . 57 V. Humble . 127, 128 Schroder r. "Ward 84 r. Jersey . 204 Scot V. Scot . 203 i: Doe 141 233 79 135 Smitli r. Smitli r. Twoart r. AValtoii V. "Wliite V. Wight ... Smyth V. Naiigle . r. North Smytlie, ex parle . Snelgar v. Henston Somerset (Duke of) ?•. Fagwell Southampton v. Drown Soulsby r. Neviiig Souter V. Drake . Soutli-Eastern Kailway Co. i Wharton .... Soutligate V. Chaplaii . Sparke's Case Sparrow v. Hawkes Spargo V. I'rown . Spencer's Case . . .27, Spencer v. Marriott Spyve ?'. Toplani . Stackpoole v. Parkinson Stafford (Lord) v. Buckley . V. Gardiner . St. Albans (Duke of) v. Ellis St. Aubyn r. St Aubvn . 134, St. Cross (Master of) r. Lord Howard de Walden ... 74 St. Nicholas De]itford v. Sketchley 16 Staines v. Morris .... 259 Stainforth ?'. P"ox ... 43 Stam])er v. Sunderland . . 27 StanJen v. Christmas . . 64, 99, 258 Stanley v. Hayes .... 94 V. Twogood . . . 84, 182 V. Wharton .... 155 Stansfeld v. Mayor of Portsmouth 246 Staple ?'. Heydon . . .27, 33 Stedman ?•. Page .... 142 Steele v. Mart .... 65 V. Midland Pail way Co. . 53 Stephens v. Bridges . . . 198 Stevens v. Copp . Stevenson v. Lambard Stiles V. Cowper . Stockley v. Stockley . Stockport' Waterworks Co. Potter .... Stokes V. Cooper . V. Russell Stone V. Kogers . V. Whiting . Storer v. Hunter . Storey v. Johnson Stowe V. .Tackson . Stott V. Clegg Strafford (Lord) v. worth Stranks v. St. John Stratton v. Pettitt Strickland v. Maxwell 211, 231, 104 131, 136, 263 4 • 31, 51 13T, 202 97, 262 • 113 198 247 Lady Went- 132, 133, 277 30 136 102 49 233 PACE Stronghill i\ Buck 42 Stroud V. liogers . ^37 Strowd V. Willis . 42 Strutt V. Winch . 54 Styles V. Wardle , 65 Sufiield V. Brown . 57 Sullivan v. J;ishi>i) 226 227 Sumner v. Bromllow 246 Surcombe?'. Pinniger 189 Sureper v. Bandal 8 Surjdice v. Farnsworth 100, 139 Sury V. Brown 29 V. Pigot 30 Sutherland r. Briggs 189 Sutton's Case 30, 174 r. Temple 100 lot Sw.\ine V. Holman 24 Swan V. Stransiijun 99 Swaun V. Earl of Falmouth 158, 160, 169 Swatman v. Ambler 79 Sweeney v. Sweeney 214 Sweet V. Seager . 80 Swift t). Eyres 53 Swinfen v, Ijacou 225 Swire V. Leech 151 Sym's Case . 278 Symons v. Symons 133 T. Tabian and Windsor's Case Tancied v. Ciiristy V. Leyland . Tanfield r. liogers Tanhan v. Nicholson Taswell v. Parker Tate V. Gleed Tatem v. Chaplin Tayleur v. Wildin Taylor v. Caldwell V. Chapman . V. Cole . V. Fitzgerald V. Gillott V. Henniker . r. Martindale V. Shum I'. Zamirii Taylorson v. ]*eters Tennant v. Field . Tew ?'. Jones Tlipobald V. Duffey Thomas ;•. Cook . V. Hay ward . V. Fredericks V. Parker V. Harries V. Thomas r. Cadwallader Thom]ison r. Gay on 260 216 159 131 214 50 146 261 214 42, 50 198 17, 281 65 272 59, 168 53 59, 268 125 56, 224 160 70, 138 24 198 91 29, 31 39 60, 162 57 84 96 INDEX TO CASES CITED. XXXV Thomson r. Ilakewill V. Lapwortli . V. Masliiter . V. Tliomiisou V. Wiiterlow V. Wilson V. I'ettitt Thorn v. AVoolcombe Thornton v. Adams 7: Finch r. Sherratt . Thorj) V. Eyre Threr v. Barton . Threslier r. East London Water works Co. . . 83, 241, 247, 2. Thrustout (/. Levick c. (Uippin Thunder d. Weaver r. Belcher Tliursby r. Plant . 49, Tidey r. MoUett Tidswell v. Whitworth Till, ex jmrte Tilney v. Norris . Timmins v. Bowlinson Tinckler i: Prentice Tipping V. Eckersley Tisdale v. Essex . Todhuuter, ex parte Toler v. Slater Tomlinson r. Day Tolenian r. Portbury Toms V. Wilson . Tooker v. Smith . Torriano v. Young Towne r. Campbell V. D'Heinrich Townshend v. Stangro^ Trapp's Case Trap|ips V. Harter Trelour v. Bigge . Tremeere r. Morrison Trent v. Hunt Tress v. Savage Trevillian v. Pine Trevivan i: Lawrence Trevor v. Boberts Tritton v. Foote . Turnani v. Cooper Turner's Case Turner v. Allday . V. Barnes V. Cameron . V. Cameron's Coalbrook Co V. Doe e/. Bennett V. Hodges V. Lamb V. Power V. Turner Tutton V. Darke . Twynam ■?•. Pickard 'J'yiite V. Hodge . Tyringham's Case 50 17 10, 70 259 50. 103 81 274 267 72, 208, 225, 227 124, 127, 203 PAOE 263 81 150 30 198 169 87, 200 280 92 232 200 48, • 43, 94 271 7 • 131 91, 202, 205 203 39 199 72 . 138 . 56 53 50, 238, 248 91 . 268 38, 159 49, 212 144 112 43 96 63 278 123 156 238 138 68 10, 69 83 113 141 155 263 79 57 41 TTpton ?■. Townend Upwell Caroon's Case Uthwatt i: Elkins Vance v. Vance . Vandenanker r. Desborougli Vane r. Lord Barnard . Varley r. Copi)ar(l Vaspor V. Edwards Vaughan, ex parte V. Hancock . V. Manlove . V. Taff-Vale llaihvay C Vaux's (Lord) Case Veal r. Bolierts . Veale r. Priour V. Warner Veness, ex parte . Vere v. Soredon . Vernon v. Smith . Vigers v. Dean and C'hai)ter Paul's Vincent v. Godson Vivian v. BlomV)erg Vyvyan v. Arthur 16. 194, of St 37, 99, 260, ; 217 273 173 220 35 178 178 63 64 3' 40 27 1 87 261 W. Wade V. Baker - — — V. Marsh Wadham v. The Postmaster Wakefield v. Brown r. Buccleugh . Wakeman r. Lindsey . V. Walker . Walker r. Code . V. Richardson V. Wakeman Walker's Case Wallace r. King . r. M'Laren . Waller r. Andrews Wallis r. Dclmar V. Harrison Walls V. Atcheson Walmsley v. Milne 38, 70, 150, 241, Walrond r. Hawkins . . 85, 88, Walsall V. Heath .... Walter r. Bumball . 159, 165, Walton ?'. Waterhouse Waiikford V. Wankfonl Wansboroiigh r. Maton . 239, Ward V. Const .... V. Day . . . 51, 156. V. Shrew .... 16 145 General 105 260 62 159 29 37 198 29 131 167 142 123 71 278 198 242 274 206 7 168 83 17 243 127 2\=; M4 26, 164, 277, XXXVl INDEX TO CASES CITED. PAGE PACE ■\Vari1 (Lord) v. Liitiiley ■ 139 Wickham v. Lee . . 225 AVardell v. Usher . 242 v. Marquis of Batl I . . 26 AVardroiJer v. Outfield . • T35 Wiggleswortli r. Dallison . 230, 232 'Waring v. King . 216 Wight r. iJicksons 92 Waniian v. Faithfull . 44, 139 Wigstow's Case • 239 Warner's Case 15 AVilbraham v. Livsey 91 Warner v. Brown . 33 Wild /•. Waters . . 251 Washbourn r. Black . 168 AVilder r. Speer . 161, 162 AVaterfall v. Pcnistone 150, 249 Wildman r. Wildman 8 Watkins v. Milton • 43, SI Wiles r. Woodwaiil 40 Watkinsou v. Manu 13 Wilkins 1: Wingate • 135 "Watson V. Main . • 154 V. Wood lOI V. Holnio . 127 Wilkinson r. Colley 213, 224, 225 V. "NVaud 140 r. Hall . 43, 226 Watts V. Kelson . . . 87 r. Rogers 91 Webb i\ Plummer 85, lOI Williams r. Bagnall 62 ■ V. Russell 97, i 99, 200, 201, 2^8, V. P.osanquet 34, 139, 260, 271 262 V. Burrell 99, 102, 103, 259, 260, Weddall V. Capes 196 266 Weekley v. Wildman 26 r. Cheney 86 Weeton v. Woodcock 246 r. Cooper 207 Weigal V. Waters 83, 179 r. Day . 186 Welby v. AVelby . 53 r. Evans 36, 250, 260 Wells V. Foster . 31 V. Earle 260, 261, 263 V. l\Ioody 169 V. Hay ward . • 8, 75, 76 West V. Blakeway 244, 247 V. Holmes . 151 V. Dobb 105, 260, 262 V. Lloyd 26 V. Fritchie . 70 V. M'Namara . 186 Wcstwood V. Cowne . . 164 r. Sawyer 196 Wetherall v. Geeriiig 86 V. Stiven ■ 155 AVetherell v. Howells i 76, 177, 243, 248, r. Williams . . 181 257 AVilliamson 1: William son . . 90 Whalley v. Tliompson . . 58 Willis r. Whitewood 16 AVharton v. Maylor . '153 Willoughby r. Foster 53 Wheatley v. Boyd 79 Wills v. Stradling 189 Wheeler v. Copeland 225 Wilmot f. Rose . 180 V. Hej'den 14 Wilson, ex parte . • 38, 70 V. Stevenson . 204 V. Abbot 73 r. Tootel • 135 V. Anderson . 53 AVhistler v. Paslow 60 V. Chisholni . 45 Whitaker v. Wisbey 19 V. Ducket . 152 White V. Bayley . • 37, 68, 71 r. Finch Hatton 100 r. Greenish . • 174 — V. Hart , 91, 92, 262 V. Hunt . 271 V. Niglitingale • 159 ■ V. Jameson . 107 r. Sewell 197, 198 V. Nicholson 100, lOI t: Wliatley . • 247 V. Willis • 173 V. Weller . 172 Whiteacre d. Boult r. Symonds . 215 V. AVilson . . . 85 Whitehead r. Bennett 242 r. AVigg . 268 • r. Taylor 144, 146 AYilton r. Dunn . 126, 144 Whitfield V. Brandwoo d . .127 AViltshear r. Cottrell 232, 248 V. Pindar 132 AYincli v. AVinchester . . . 56 V. Weedon . . 182 AVincliester (lUshop of r. A\'right 139 AVhitlcy V. Boherts . 142 AYindliam v. Carew . . . 87 A\'hitl()ck V. Horton • 9, 43 r. AVindliam 53 AVliitniorc v. Empson 250 Windsor, Dean and Ch apter of, r. r. Humphries 216 Glover .29, 76 Whittaker v. Barker .' 235 AVindsor (Lord) v. Bur y . , 88 Whittington, ex parte 180 AViudsor's (Dean of) C ise . . 260 Whittle V. Frankland 103 AVinnard r. Foster . 172 AVhittome v. Lamb 77 AVinter r. Loveday 108 Wickham v. Hawker 59 AViuterbottom c. Ingli mi . , 69 INDEX TO CASES CITED. XXXVll PAGE PAGE Winterbourne v. Morgan 164, 167, 171 Wootton V. Harvey . 172 "Wiscot's Case 6 r. Steffeuoni 24 Wise r. Bellent , • 143 Wright r. Burroughes 217, 263, 264 Witty r. Williams . 124 r. Dewas • 148, 153 Wolveridge r. Steward • 259 r. Dicksons . 92 Woniersley r. Dally • 235 V. Stavert ■ 31, 35 Wood and Chivers' Case 124, 203 v. Smith 225 r. Eeard 35 r. Trevezant 43 r. Clarke • 151 Wyburd v. Tuck . . 62, 66 r. Copper Miners' Company 79 Wyndham v. Carew . . 87 v. Day . 112 v. Way 60, 242, 244 v. Hewett . 150 Wynne v. Wynne • 277 r. Leadbetter • 31. 51 r. Nunu . 158 Woodbridge Union r. Colneis 37 Y. Woodcock V. Gibson . 16 t: Nuth 198 Yates V. Colo 263 Woods r. Durrant 163 v. Eastwood . 167 r. Pope . 181 Yellowby v. Gower TOO, 176 Woodward i: Aston 197 Yeo V. Leman 127 Woolaston r. Hakewill 8, 87, 263, 267, Young r. Badfoot • 199 268 i: Holmes 17 V. Stafford . • 157 V. Manton . . 84 Wootley V. Gregory . 97, 150 V. Raincock . 40 Worcester School Trustees V. Rowlands . . i8r Worledge r. Benbury . II Z. Worthington r. Ginison 57 f. Warrington 113 Zouch d. Abbot v. Parsons 20, 21, 197 r. Wigley ■ 125 V. More 31 INDEX OF STATUTES. PAGE PAOK 52 Hen. III. c. 4 162, 168 169, 171 29 Car. II. c. 3 . • "34 ,, c. 13 . . 176 s. I, 2, 4 35, 67 ,, c. 15 . . 154 s-3 • • 195 6 Edw. I c. 5 176, 178 2 Will. & Mary, sess. i, c. 5, 3. 2 13 M c. 5, S. I 2 147,1 63 166, 171 ,, c. 37 . • 144 C.5 163, 168 18 „ C. I • 255 s. 3 147, 152 > J c. 5, s. I 2 S.4 . 172 20 Hen. VII. c. 13 . • 238 12 &i3Will.III. c. 2 • 24 7 Hen. VIII. c. 4, s. 3 . • 174 I Anue, c. 7, s. 5 II 21 c. 19, s. 3 . • 174 4 „ e. 16, s. 9 • 144 c. 15 (repeale 1) . 34 4 & 5 Anne, c. 16 • 255 28 \, C. II . . 229 6 „ c. 18 . 6 32 c. 16, s. 13 . . 24 s. 35 . • 279 c. 28 . 7, 13 „ c. 31 . 177, 178 >> c. 28, S. I . 3, 12 8 ,, C. 14, 8. I • 153 >> c. 34 64, 202 , 257, 263 s, 4 . • 139 ,, s. 2 . • 257 8.6 . 141, 156 ,, s. 3, 4. 5 • 256 s. 7 . 141, 156 ,, c. 37, S. I . • 145 4 Geo. II. c. 28 . . 205 ,, s. 3 . . 142 ,, c. 28, S. I . . 224 ,, s. 4 . . 142 ,, s. 2 . 203, 204 5 & 6 Edw. VI. c. 16 . 3'^ s. 5 . • 147 1 & 2 Philip & Mary, c. 12 162, 165 8.6 . 96, 200 ,, ,, s. I . 171 9 , , c- 36 • 25 I Eliz. c. 19 . . . • 13 II ,, c, 19 133, r )5, 147, 165 13 „ c. 10 . • 13 ,, c. 19,8. I . • 154 14 , c. II . . . • 13 ,, s. 2 . . 132 s. 16, 17 • 13 8.3. • 133 18 > c. 6 . . . • 74 8. 4-7 • 15s , c. II . . . 13 8.8 39 , c. 5, s. 2 . • 13 147, 155, 1( '3, 164, 172 43 , c. 2, S. I 38, 128 8.9 . 163, 171 , c- 9, s. 8 13 ,, 8. 10 162, 171 1 Jac. I. C.3 . • 13 ,, 8- II • 255 12 Car. II. c. 24 . • 255 ,, 8- 14 137, 138 ,> c. 24, 8. 8, II 16 8. 15 . 132 17 ,, c. 7, S. 2 • 174 ,, 8. 16 222, 223 ,, 8.4 . • 157 8. 18 . 226 19 „ c. 6 . . 16 ,, 8. 19 . 167 ,, 8. 2, 3 . 6 5 Geo. III. c. 17 • 29 xl INDEX TO STATUTES. PAGE 1 PAGE 13 Geo. Ill c Si, s. 15 . 10 1 6 & 7 Will. IV. c. 72. . 135 jj c. 87. s. 75 28 I & 2 Vict c. 74, e. I . 218 14 c. 78, s. 83 s. 86 261 178 c. 106, s. 28 . C. I 10, 8. II , • o5 . 280 38 „ c. 87, s. 6 17 3 & 4 7, c. 84, s. 13 222, 223 39&40 „ c. 41 14 4&5„ c. 35, 8. 50 . . 134 49 c. 126 . 30 5&6,, c. 27 . • 14 56 „ c 50, S. I 1/ l8, 152, 179 C. 35, 8. 60 82, 127 f 9 8. 2 . 180 s. 73 • . 128 !» e-3 148, 152 8. 103 . . 82 ,j s. 6 148, 152 c. 97, s. 2 . 172 ,, S. II . 180 c. 108 . • 14 57 c. 52 . 222, 223 6&7 " 0. 30 , . 172 s. 17 . 223 7&8,, c. 66, s, 5 . 24 ,, c 93 • 164, 165 C. 96, 3. 67 • 153 s. 2 . 166 8 & 9 ',', C. 20, S. II 2 . 12 ,j s. 6 . 166 c. 106 33,49 58 „ c. 5,6.4 . 127 S. I . 36 s. 17, 18 ,35 • 126 8. 2 • 27 59 r, c. 12, S. 12 . 26 s- 3 35, 3 5, 68, 195 s. 17 • 15 8.4 . 102 3 Geo!'lV. c. 126 . • 30 8.5 . 120 >> s. 57 • 30 8.9 97,200 4 c. 95,8.51 . 30 8&9i' 0. 124 . . 93 9 c 69, S. 2 . 192 9& 10 ,, c. 74 . . 26 )) c. 85 . • 25 0. 95, 8. 91, 119, [20 173 I Will. IV. c. 65 . . . 96 s. 122 . . 220 jj 8. 12 17, 24, 25 12 & 13 Vict. c. 26 . 108, 109 ,, 8. 15 24, 25 c. 67 . . 146 ,, 8. 16, 17 22 c. 92, s. 5 . 161 I & 2 Will. IV. c. 32, s 8, 12 61 8.6 . 161 ,, 8. 31 192 C. 105, 8. 125 . • 249 2&3 „ c. 42, S. 5, II 220 c. 106 . 269 3&4 „ c. 27, s. 2 156 13 c. 17 . no B. 3, 8 156 S. 2 108, no ,, S. 7 70 s. 3 . no >> S. 42 156 s. 4, 5, 6, 7 . no >> C. 42, 8. 2 . 1 82, 268 13&14' c. 60 • 273 99 s. 3 . 140 s. 34, 35 • 274 »> 8. 37 c. 61,8. 14, 16 . 174 I ii, 145, 146 c. 99 . . 128 >> c. 74 3, 276 14 & 15" c, 25 . 129, 13s JJ 8. 15 , 34 • 3 S. I 4, 6, 229 »> 8. 26 ,27 273 S. 2 148 152, 180 »> 8. 54 4 s. 3 . 245 ,, 8. 56 ,73 . 272 8.4 . 130 )) S. 77 ,79 20 8.58 . • 245 4 & 5 ., C. 22 • 135 c. 104 . . 15 8. I • 133 15 & 16' c. 48 . . 18 ,, c. 76, S. 23 . 26 0. 76, s. 40 • 277 5&(3 ,, C. 76, 8 94 ,96 II 8. 205,217 6& 7 „ c. 20 . c. 64. 14 14 137 8. 210 . 173, 204 „ c. 71, S 5^ • 75 S. 212 . 188, 204 >> s 67 ,80,81 129 c. 79,8.13 . . 219 s 86 • 134 c. 80 . . 82 INDEX TO STATUTES. xli PAOE PAGE 17 Vict. c. 70, s. 113, [15 loS 23 23 & 24 Vict. c. 126, .s. 2 86 , 8. 129 18 , c. 136 . 12 c. 137 . 12 C. 136, 8. 13 219 iS c. 10 82 c. IS4 ■ • 135 , c. 16 • 15 8.2,3,. • "35 , c. 36 . 249, 250 8. 5, 7 136 , c. 60, S. I . i6i 24^25 eg 25 , c. 116 . • 15 , c. 96, s. 17 192 , c. 125. s. 61 . . 140 , c. los . 14, 15 19 c. 70, s. iS . 26 , c. 125 . 26 , c. 124 . 12 c. 131 . • 15 20 c. 74 . • 15 c. 134 . . 269 c. 108 . • 173 2S&26 c. 17 26 s. 51, 25 . 221 , c. 52 • 14 , s. 50 . 220 , C. 89, B. 87, 16^ • 27s s. 52 204, 221 c. 99 . . 269 , s. 63, 65 ,66,71 , c. 114 . 192 173, 174 26 & 27 0. 106 . 26 , s. 68, 71 . 174 27 , c. 18, s. 15 128 8.73 20 c. 113 . 26 s-75 •0 '53 27 & li c. 45 12 , c. 120 . 9, 18, 276 29 & 30 c. 57 . 26 , S. 2 4 30&31 c. 102, s. 6 . 129 8-32 3, 4, 7, 10 , , c. 106, 8 13 26 8.33 • 5, 7 , c. 143 . IS 8. 34, 4] ,44- 5 31 & 32 c. 44 26 6- 35 • 3, 7 , , c. 104 . 269 8. 36 . 18 , , cm 15 , c. 120 . ( 5, 12, 17, 22 , , c. 114,8. 9 Ki 8. 34 . 121 32&33 C.41, s. I, 6, < 5, 12 21 c. 74 • 15 128, 129 22 C. 12, s. 5 . 219 , c. 46 • 125 c. 57 14, 15 c. 71 . 269 0. 75, s. 3 . 26 , 0. 71, 8. 14 I 8,270 c. 77 . 12, 17 , 8. 20, 23 270 s. 3 10 , S. 22 270 s. 8 • 5,7 , s. 24 271 23 C. 21, 8. 25 18 , s, 25 272 s. 79 . 20 , 0. 83, 8. 20 269 c. 35, S. I . 89 ; c. no 26 , S. 2 . 90 33 & 34 C. 14, S. 2 24 8.3 . 264 c. 23 19 s. 4, 8 • 8s , c. 33,8. no 23 8. 7 . 261 c. 34 . 26 , 8. 12 . 109 c. 35 . 13s , 8. 27 . 268 c. 39 . 28 , 8. 28 . 269 C. 44, 8. I 117 , c. 46 . ■ 15 c. 93 . ( ), 8, 20, 275 c. IS . • 31 c. 93,8. 1,7,8 275, 276 24 c. 30 26 , 8. II, 12 , 15 • 276 c. 38 . . 89 . c- 97, 8. 96 51, 114-118 s. 6 . 206 8 97 . 112, 118 c. 41 . 26 , 8. 7, 8, 9, 10, , c. 124 . • 15 15, 16, 17, 18, 20, 2 '■3, 24, , c. 126 . ■ '73 93, 98, 99, 100 , 8. I . 188, 204 114, 115, I 16, II 7.nS xlii INDEX TO STATUTES. Pack PAli 1; 33&3A Vict, c.97,8. 38 . . 164 , s. 120 . . 125 38 & 39 Vict. c. 77,0. 17, R. 2 138, 217, 221 34 & 35 c. 79, s. I, 3 . . 152 , S. 2 . 152, 170 R. 4 . 277 0. 19, R 8 . 218 35 & 36 C. 24, S. 10, II 12, 26 , c. 50 s. 3 . .151 , s. 4, 6 . . 1 70 R. 15 . 217 0. 29, R. 7 . 217 0. 30 . . 174 36&37 c. 66, s. 25 . 178, 186 , s. 25, subs. 4 199 , subs. 5 . . Add. , subs. 8 & order 2, rule I .183 s. 34 . . i8g 0. 42, R. I, 24 281 0. 43 . . 279 0.50, R.I 260, 265 R. 2, 4 265 li. 3 125, 265 30 & 38 c. 33 . . 7, 17, 18 c. 42, s. 37 . .26 , c. 54, s. I, 2 . . 276 s. 3 . . 129 , s. 6 . . 128 c. 59 . . .11 , C. 62 . . .21 R.5,6,7 266 c. 92, s. 52 209, 210, 252 8.51,54,57 . 211 8. 41 . . 213 8. 54, 60, 14, 59 228 8.9 . . 233 38&39 C. 36, S. 9 . . 12 c. 55,s. 177, 175 12,26 , c. 60 . . .26 ,, B. 4, 54, 56, 55, 57 • • 235 S. 59, 60, 2,"^ 5, 9, 10, C 236 II, 12, 13, [ ■^ 14 . ) , c. 77, rules, June 1876 . . . 217 , 0. 2, R. 3 . 217 0. 3, R. 2, 3, 4 ,, s. 15, 16, 17, ) 18,19, 20,41,40,42, [ 237 183, 184 , R. 7 . 204 43,44,45,50,49,52) , 0. 4, R. I, 2. 218 ,, s. 51 . . 270 0. 9, R. 8 . 217 ,, s. 39 , 0. ii,R. I . 217 125, 228, 247, 276 , 0. 12, R. 18, 39 ,, c. 16, s. II . . 118 20, 21 . 217 39 & 40 0. 45, s. 12 . . 26 0. I3,R. 7, 8, 217 ,, c. 74, s. 2, 3 . . 237 0. 16, R. 8 . 277 ( xliii ) ADDENDA ET COKRIGEXDA. Pages 3-7, 10, 17. 18, 22— The statutes relating to leases of Settled Estates are now consolidated by the 40 & 41 Vict. c. 18. Page 7, line 17 — The new Act of 1877 omits the words "oji Tion-oliservance of any of the covenants or conditions therein contained." P'ige 35, note (?6')— Hand r. Hall has been reversed on Appeal, 46 L. J. Exch. 603. Page 36, at foot of note (a), add—Hee also Angell r. Duke, L. K. 10, Q. B. 174, 44 L. J. Q. B. 78. If a new agreement is made by parol the old one is done away with, and the new one if not within the statute is void also, Sanderson v. Graves, 44 L. J. Ex. 210. Page 61, note (k), add — See also Coleman v. Bathurst, L. R. 6, Q. B. 366, 40 L J M. C. 131. Page 70, note {g), add— By the Judicature Act 1873, s. 25, sub-sect. 5, a mort- gagor without notice from the mortgagee of bis intention to enter, may now sue in his own name. Page 87, note (r;), after Backland v. Papillon, add—Bee also Hampshire v. Wickens, L.R. "Weekly Notes, Feb. 9, 1878, p. 26. Page 91 note (>>), add — A covenant is sometimes inserted that a house shall bo used as a private dwelling-house only. Putting up a blind with the words "Alpheus Andi'ews Coal office, and at the Coal H\change " (Wilkinson v. Rogers, 2 De Gex, J. & S. 62), and, keeping a girls' school (German i\ Chapman, L. R. "Weekly Notes, Doc. 8, 1877, tJ. A. p. 243) have been held to be breaches of such a covenant. Page 102, note {<]), add— But now there is no implied covenant under a contract to assign a term of mars, and the intended assign is not entitled to call for the title to the freehold. — See 37 & 38 "Vict. c. 78, s. 2. Page 102, note (/), add— Mosiyn v. "West Mostyn Coal Co., L. R. r, C. P. D. 145; 45 L. J. C. P. 401. Page 113, note {w), add— By the 39 & 40 "Vict, c, 16, s. 11, " Any instrument, whereby the rent reserved by any other instrument chargeable with stamj) duty as a lease or tack and duly stami)ed accordingly is increased, shall not be chargeable with stamp duty otherwise than as a lea^e or tack in consideration of the additional rent thereby made payable." Page 133, note (.;'), add—Hee also Paget ?'. Manjuis of Anglesea, L. R. 17, Erj. 283. Page 157, note {z), add— The above section is repealed by the 37 & 38 Vict. c. 57, and re-enacted, substituting twelve years for twenty ; but this Act does not come into oiieratiou until the ist of January 1879. Page 163, line 12 from bottom, add— So much of the above section as requires any sheriff or undersheriff or constable to be aiding and assisting at any distress for rent or to swear any appraiser thereat is repealed, and uo oath is required by the 35 & 36 Vict. c. 92, a. 13. Page 172, Hue 13, after the word "owner" insert note (Ui) — Mere enjoyment of use of goods will entitle to sue in replevin. — Fell r. "Whitaker, ante, p. 169. Page 173, note (iv), add— And see Gibbs r. Cruikshank, L. R. 8, C. P. 454, 42 L. J. C. P. 273. xliv ADDENDA ET CORRIGENDA. Page i8i, note (x), add—h. 11. 8, C. T. 79, 42 L. J. C. T. 46. Tago 183, note (o), after Hughes v. Met. Rly. Co., add — AflBrmed, 46 L. J. H. L. 583. Page igo, line 10 — It seems that, where a tenant obtains specific performance and has been kept out of possession, the lease must express that rent is only to commence subsequently to his obtaining possession, and upon tlie da^ of the montli originally agreed upon. — Wesley v. Walker, L. R. Weekly Notes, Feb. 9, 1873, p. 29. Page 190, note (e), add— See also Ainley v. Dawson, L. R. Weekly Notes, Feb. 2, 1878, p. 19. Page 193, at foot, add — The grantor of an ordinary right of shooting may cut down timber even to the prejudice of the shooting. — Gearns v. Baker, ante, p. 61. Page 193, note (e), add — See also Morgan v. GriflBths, L. R. 6, Ex. 70 ; 40 L. J. Ex. 46. Page 203, note (t) — Notice by the assignee of the assignment to him is necessary under the 4 Ann, c, 16, s. 9 in the case of a breach of the covenant to pay rent; but this does not apply to breaches of other covenants. — Seattock v. Harston, a7ite, p. 182. Page 214, note (s), add— See also Holme v. Brun.skill, 47 L. J. C. P. 81. Page 250, note (d), add— See also Cross r. Barnes, 46 L. J. Q. B. 479. Page 262, note (<), for " Plight " read " Flight." Page 272, line 3^A disclaimer under section 23 supra operates as a surrender from the date of the trustee's appointment, and fixtures would then become the property of the landlord, and the trustee would have no right to recover them. — Kc parte, Stephens, iu re Lavies, L. R. Weekly Notes, Dec. 8, C. A. 47 L. J. Bkcy. 22. Page 275, after in re Coal Consumers Co., add — "In re Regent United Service Stores, L. R. Weekly Notes, Feb. 2, 1878, p. 21, and in re North Yorkshire Iron Co., (6. Page 314, old ed. note (a), add — " See also Meux v. Jacobs, ante, p. 241, ex parte Barclay, L. R. 9 Ch. 577." A MANUAL OF THE LAW OP LAXDLOBD AND TENANT. PART I. CREATION OF THE TENANCY. CHAPTEK I. OF LESSORS. 1. Tenants IN Fee-simple ... 2. Tenants in Tail- or common Imv enabling statutes fines and recoveries ... 3. Tenants for Life— at common law hy statute tenant pur autre vie ... tenants after possibility of issue extinct tenants in dower or jointure husband leasing wife's lands 4. Persons having less than A Freehold Interest— tenants for years from year to year for less than years at will ... 5. Joint-Tenants and Ten- ants in Common 6. Mortgagor and Mort- gagee 7. LoKDS of the Manor and Coptholders 8. Corporations— the crown municipal corpurations tru.'itees of settled estates trustees of charities ... local aiithorities railway companies ... ecclesiastical corporations . enabling and disabling stat utes ... 9. Parish Officers .. 10. Guardians — in socage ... ... ... 16 testamentary guardians ... 16 11. Executors and Admin- istrators 17 12. Trustees of Bankrupts 18 13. Persons under Disarilitt — lunatics ... ... ... 18 persons in a state of intoxi- cation persons under duress persons attainted married women infants 12-15 ... 15 By law all land is ultimately held of the sovereign. No sub- ject, therefore, can possess a greater estate in law than a tenancy, a word which implies the holding from some supe- rior ; but the more ordinary use of the word tenancy is where it is intended to mean a holding for a certain definite term, subject to some rent or fine, accompanied by certain obliga- ■z :> A 2 CREATION OF TENANCY. CHAP. I. tions of the lessor and lessee respectively. Upon such a holding arises the ordinary relation of landlord and tenant ; and it is to the nature and incidents of such a holding, and the obligations arising from it, that the present volume is intended to be confined. In the present chapter it is proposed to show vpho may be lessors. I. Tenants in Fee-simple. The tenant in fee-simple has the entire uncontrolled dis- position of the property, and may demise for any term what- ever (a). By the common law, any person seised of an estate in fee-simple in lands could convey the lands to be held of himself in fee-simple, and thus create a tenancy in fee-simple between himself and his grantee ; but by the statute of quia emptores (b), no tenancy in fee-simple which has been created since the passing of that Act can any longer be held of a sub- ject (c). 2. Tenants in Tail. At common law. At conimon law a tenant in tail might make a lease for his own life (d). If a tenant in tail after the statute De donis (e) made a lease for years and died, the lease was not abso- lutely determined by his death, but the issue in tail might affirm or avoid it (/). Acceptance of the rent, or bringing an action for recovery of rent, or an action of waste, were such acts as would amount to a confirmation, because these plainly manifested an intent to keep the lessee in possession upon the terms of his lease {g). But if the tenant made an under- lease, and the issue in tail accepted rent from the under- lessee, this would have been no confirmation of the lease. If the tenant assigned part of the land for the residue of the term, and the issue accepted rent from the assignee, this would have confirmed the lease [h). If the tenant in tail died whilst the right of the lessee was but an interesse ter- mini (i), and the issue entered and aliened, tlie alienee might elect to confirm or avoid the lease (./). But if the tenant in tail granted an immediate lease, and the issue aliened without entry, the alienee was bound by the lease, by reason that the issue had only a right of entry, which is not alienable (k). {a) Com. Dig. tit. Estate, (G) 2. (r/) Bac. Abr. Leases, (D) r. (h) 18 Ell. L c. I. (h) Bac. Abr. Leases, (D) i- (c) Stephen's Blackstone, i. 240. {i) See infra, c. 4, s. r n. (?•). (d) Com. Dig. tit. Estate, (G) 2. {j) Bac. Abr. Leases, (D) 1 ; Co. (e) 13 Ed. I. c. I. Litt. 349. (/) Bac. Abr. Leases, (D) i; Co. (k) Bac. Abr. tit. Leases, 311, Litt. 45. 315, 324. OF LESSORS. 3 Neither persons in remainder nor in reversion were bound by ^ "'^'' ^ the leases of the tenant in tail ; against them such leases were void, and they could not contirm them on the death of the tenant in tail (/). By the 32 Hen. VIII. c. 28, a tenant in tail was enabled Enabling to make leases for twenty-one years or three lives, if such ''''*'"''-'■''• leases were made in conformity with the provisions of the statute. Such leases were binding on the issue in tail, but not on the remainder-man or reversioner (m). The statute of Hen. VIII. is repealed by the 19 tfc 20 Vict. c. 120, ss. 32, 35, by which a tenant in tail of settled estates has the same power to make leases as a tenant for life has (n). Leases made by persons having an estate in right of their churches are, however, excepted in the repealing section, and therefore as to them the statute of Hen. VII I. still applies (0). By the 3 »k 4 Will IV. c. 74, called the Act for the Aboli- Fines and tion of Fines and Recoveries, after the 31st day of December '''^'^°^'^'"^*- 1833, every actual tenant in tail (2)), whether in possession, remainder, contingency, or otherwise, has full power to dis- pose of for an estate in fee-simple absolute, o?' for any less estate, the lands entailed, as against the issue in tail (q), and if there be a protector of the settlement, with his consent as against all persons whose estates are to take effect after the determination, or in defeasance of such estate tail (r). By sect. 41 every assurance by a tenant in tail, except a lease not exceeding twenty-one years, commencing from the date of such lease, or from any time not exceeding twelve months from the date of such lease, at a rack-rent, or not less than five-sixths of a rack-rent, is inoperative, unless such assurance is enrolled in Chancery within six months after its execution (s). 3. Tenants for Life. At common law a tenant for life cannot make a lease to At common law. continue longer than his own life. It deternunes absolutely (l) Co. Litt. 45 b ; Doe d. Phillips {n) See infra, Tenant for Life. V. Rollings, 4 C. B. 188. (0) See infra, p. 12. {m) See Rowdonv. Maltster, Cro. (p) See infra, pp. 17, 19, and 20, Car. 42 ; Doe v. Jenkins, 5 Biiig. as to infants, lunatics, or married 469 ; Rees v. Phillips, Wight. 69 ; women who are tenants iu tail. See Doe d. Phillips v. Rollings, 4 C. B. 19 & 20 "Vict. c. 120. iBo ; Bac. Abr. tit. Leases, (I)) ; Co. (q) Sect. 15. Litt. 44 a ; 8 Co. 34; Lampet's (/•) Sect. 34. case, 3 Co. 64 b. The above statute (s) The deed may be enrolled by- is repealed by the 19 & 20 Vict. c. either vendor or jmrchaser, and the 120, s. 32, infra. enrolment should be made as soon CHAP I. 4 CKEATIOX OF TEXANCY. on his death (/), or at the end of the then current year of tlie tenancy (h), and cannot be confirmed by any acts of the remainder-man or reversioner (v) ; but such acts as the receipt of rent will be evidence of a new tenancy from year to year on the terms of the original lease [iv), except where the remainder-man receives the rent in ignorance of the terms of the lease (x). If the remainder-man, however, lies by, and with notice of what the tenant is about to do permits him to lay out money in rebuilding, equity will interfere and prevent him from insisting on the determination of the lease (?/). By statute. By the 19 & 20 Vict. c. 120, s. 32, "It shall be lawful for any person entitled to the possession or to the receipt of the rents and profits of any settled estates for an estate for life (2) or for a term of years determinable with his life, or for any greater estate, either in his own right or in right of his wife, unless the settlement shall contain an express declaration that it shall not be lawful for such person to make such demise ; and also for any person entitled to the possession or to the receipt of the rents and profits of any unsettled estates as tenant by the curtesy or in dower, or in right of a wife who is seised in fee, without any application to the Court (a), to demise the same, or any part thereof, except the principal mansion-house and the demesnes thereof and other lands usually occupied therewith, from time to time, for any term not exceeding twenty-one years, to take effect in possession : provided that every such demise be made by deed, and the best rent that can reasonably be obtained be thereby reserved, without any fine, or other benefit in the nature of a fine, which rent shall be incident to the immediate reversion ; and as possible after execution. Cattell d. Potter v. Archer, i Bos. & Pul. V. Carroll, 4 Y. & C. 228. If the 531 ; Ludford r. Barber, i T. K. 86 ; lands lie in a I'egister county, the Jones r. "Verney, ^Villes, 196. deed must, it is conceived, be en- (w) Doe d. Martin v. Watts, 7 T. rolled in compliance with the local R. 83 ; Doe d. Collins v. Weller, ib. Acts, as well as under this Act. 478 ; lloe d. Brune r. Prideaux, 10 Enrolment is not necessary for a East. 158 ; Doe d. Tucker v. Morse, lease of copyhold land, but there i B. & Ad. 365 ; Doe d. Penuiugtou must be an entry on the court rolls v. Taniere, 12 Q. B. 998. within six calendar months. See {x) Oakley r. Monk, L. R. i Ex. 3 & 4 Will. IV. c. 74, s. 54; and 159; 35 L. J. Ex. 87. Gibbons v. Snape, i De G. J. Sm. (y) Stiles v. Cowper, 3 Atk. 692 ; 621, 33 L. J. Ch. 103. East India Co. v. Vincent, 2 Atk. {t) Bac. Abr. Leases, (i) ; Adams 83 ; Jackson v. Cator, 5 Ves. 688 ; V. Gibney, 6 Bing. 656. Dunn v. Spurrier, 7 Ves. 231, 235, (m) 14 k 15 Vict. c. 25, s. I. 236. (v) Doe d. Simpson v. Butcher, (r) This will include a tenant in Doug. 50; Jenkins d. Y''ates v. tail after jjossibility of issue extinct. Church, Cowp. 482 ; Roe d. Jor- See sect. 2. dun ?•. Ward, i Hen. Bl. 97 ; Doe (a) Of Chancery. OF LESSORS. 5 provided that such demise be not made without impeachmetit of waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit ; and also a condition of re-entry on non-payment, for a period of not less than twenty-eight days, of tlie rent thereby reserved, and on non-observance of any of the cove- nants or conditions therein contained ; and provided a coun- terpart of every deed of lease be executed by the lessee." By sect. 33, " Every demise authorised by the last preceding section shall be valid against the person granting the same, and all other jjersons entitled to estates subsequent to the estate of such person under or by virtue of the same settle- ment, if the estates be settled ; and, in the case of unsettled estates, against all persons claiming through or under tlie wife (or husband), as the case may be, of the person granting the same;" and by the 21 & 22 Vict. c. 77, s. 8, against the wife of a husband entitled in her right. By the 19 & 20 Vict. c. 120, s. 34, "The execution of any lease by the lessor or lessors shall be deemed sufficient evi- dence that a counterpart of such lease has been duly executed by the lessee, as required by this Act." By sect. 41, '•' For the purposes of this Act a person shall be deemed to be entitled to the possession, or to the receipt of the rents and profits of estates, although his estate may be charged or encumbered either by himself or by the settlor, or otherwise howsoever, to any extent ; but the estates or interests of tlie parties entitled to any such charge or encum- brance shall not be affected by the acts of the person entitled to the possession, or to the recei[>t of the rents and profits as aforesaid, unless they shall concur therein." By sect. 43, " Nothing in this Act shall authorise the granting of a lease of any copyhold or customary heredita- ments not warranted by the custom of the manor, without the consent of the lord, nor otherwise prejudice or affect the rights of any lord of a manor," By sect. 44, " The provisions of this Act shall extend to all settlements, whether made before or after it shall come in force, except those as to demises to be made without applica- tion to tho Court, v'hich shall extend only to settlements inaJe after this Act shall come in force." 6 CREATION OF TEXANCY. ^ ^^^^- ^- A tenant jmr autre vie is in the same position as an Tenant pur Ordinary tenant for life, except that his leases will determine, autre v>e. ^^^^ ^^^ j^j^ ^^^^^ death, but on that of the cestui que vie, or rather at the expiration of the then current year of the ten- ancy (6) ; and he may therefore make a lease to commence after his own death (c). By the 19 Car. II. c. 6, after recit- ing that whereas divers lords of manors and others have use to grant estates by copy of court-roll, for one, two, or more lives, according to the custom of their several manors, and have also granted estates by lease for one or more life or lives, or else for years determinable upon one or more life or lives, it is enacted by sect. 2, that "■ if the person or persons for whose life or lives such estates have been or shall be granted, as aforesaid, shall remain beyond the seas, or elsewhere absent themselves in this realm, by the space of seven years together, and no sufficient and evident proof be made of the lives of such person or persons respectively in any action commenced for recovery of such tenements by the lessors or reversioners, in every such case the person or persons upon whose life or lives such estate depended shall be accounted as naturally dead ; and in every action for the recovery of the said tene- ment by the lessors or reversioners, their heirs or assignees, the judges before whom such action shall be brought shall direct the jury to give their verdict as if the person so I'emaining beyond the seas, or otherwise absenting himself, were dead." Sect. 3 contains a proviso respecting persons evicted under the Act, when the cestiiis que vie turn out not to be dead. The 6 Anne, c. 18, contains provisions enabling the Court of Chancery, in certain cases, to cause the cestuis que vie to be produced. Tennnts after The estates of tenants after possibility of issue extinct, by is°u'e' ex'tmct, by the curtcsy. Or in dower or jointure, though growing out of "'« curtesy, ten- t^jg original estate of inheritance, afford them no more than a jointure. lifc-intercst ; such tenants, therefore, stand precisely on the same footing as tenants for life, and are restricted to the like limits in the disposal of their lands {d). Husband leasing First, As to wife's freehold {e) ; at common law, a lease wife bland. ^y. (jgg^j made by the husband and wife, or by the husband alone, of the wife's freehold is good during the coverture (/). (6) 14 & 15 Vict. c. 25, s. I. Married Women's Property Act, (c) Dale's case, Cro. Eliz. 182. 1870. ((i) See ante, p. 3, Tenants for (/) Wiscot's case, 2 Co. R. 61 b ; Life, and 19 & 20 Vict. c. 120. TSatoiiiciu v. Allen, Cro. Eliz. 438 ; (e) See post, p. 19, Married liac. Abr. tit. Lciises, (,0) i ; aWms. "Women; and Part 4, c. 2, s. 3, Saund. 180 u. {q). OF LESSORS. 7 Upon the death of the Inisband in the wife's lifetime, it is CHAP^r. voidable by her, but may be confirmed by her ; as, for in- stance, by the acceptance of rent due after the husband's death (g), and the lessees will be liable upon tlie covenants although the widow does nothing to confirm the lease (h). But where a lease is made by husband and wife without deed, it is void as against the surviving wife, for it cannot be said to be her lease (i). If the husband survives his wife, and be- comes tenant by the curtesy, the lease as against him will be good during his life, or until the end of the term, if that should first happen ; but if the husband survives the wife, and does not become tenant by the curtesy, the lease, upon the wife's death, will be void as against her heir-at-law, and those claiming through her (J). By the Enabling Act, 32 Hen. VIII. c. 28, husbands seised in right of their wives, or jointly witli their wives, for any estate in fee or in tail, were empowered to grant leases for any term not exceeding twenty-one years or three lives, sub- ject to certain restrictions (k) ; but this Act was repealed by the 35th sect, of the 19 &, 20 Vict. c. 120. By the 19 & 20 Vict. c. 120 (l), ss. 32, ^;^, amended by the 21 & 22 Vict, c. 77, s. 8, and the 37 & 38 Vict. c. ;^;^, a husband seised in right of his wife of any settled estates for an estate for life, or for a term of years determinable with her life, or for any greater estate (unless the settlement con- tains an express declaration to the contrary) ; and also a hus- band entitled to the possession, or to the receipt of the rents and profits of any unsettled estates, as tenant by the curtesy, or in right of a wife who is seised in fee, can, without any application to the Court of Chancery, make leases for any term not exceeding twenty-one years, if made in accordance with the provisions of these statutes (»t). Secondly, As to the wife's chattel interests (not being (g) Henstead's case, 5 Co. R. 10; (on appeal), 4 B. & C. 529; and see Co. Litt. 55 b; Anon. Dyer, 159 pi. Howe v. Scarrott, 4 H. & N. 723, 36 ; I Koll Abr. 349 ; Greenwood 28 L. J. E.\. 325. V. Tyber, Cro. Jac. 563 ; Jackson (k) See ante, Tenants in Tail, V. Mordaunt, Cro. Eliz. 1 12 ; Doe d. p. 2, and Ecclesiastical Corpora- Collins V. Waller, 7 T. K. 478 ; tions, p. 16 ; also Uac. Abr. tit. 2 Wms. Saund. 180 n. (q). Leases, (C) i ; and 2 Wnis. Saund. (h) Toler v. Slater, L. K. 3 Q. B. 180 n. (7). 42 ; 37 L. J. Q. B. 93. (I) This Act (s. 35) repealed the (i) Walsall v. Heath, Cro. Eliz. Enabling Act of 32 Hen. VIIL c. 656 ; Greenwood v. Tyber, Cro. 28. Jac. 564 ; 2 Wms. Saund. 180 a (n.). (?n) See ante, Tenants iu Tail, (j) Hill V. Saunders, 2 Biu^'. H2 pp. 2 and 3. 8 CREATION OF TENANCY. Tenants for years. Tenant from year to year. Tenants for less than years. clioses in action), the husband, at common law, has the abso- lute disposal of them during his life (?t), and may not only make leases of them to commence z?i pi-esenti, but even to commence after his death (o). 4. Persons having less than a Freehold Interest. A tenant for years may part with any portion of his term by way of lease, and the grantee thereof will become his ten- ant; but if he make a lease for the whole of his term, it will operate as an assignment, and no tenancy will be created be- tween him and the grantee, who will hold of the lessor of whom the tenant for years himself held, and will, in fact, occupy his place {p). A tenant from year to year is considered to have such an interest in the land demised that he may lease it for years, and the term will continue in force so long as his own ten- ancy lasts {q). So also he may under-let from year to year during the continuance of the original demise (r), and, in either case, he will have a reversion (a). Under a tenancy for one year, or for less than one year, provided it is for a term fixed and certain, the tenant has the same power of assigning or leasing as a tenant for years {t). Tenants at will. Tenants at will, or on sufferance, cannot demise (it). (n) But he cannot devise them, for his devise does not tnke effect until his death, when his interest ceases. Bac. Abr. tit. Barou and Feme, c. 2. (0) Co. Litt. 46 b, 300, 351 a. See Druce v. Dennison, 6 Ves. 385 ; Wildman v. Wildman, 9 Ves. 177 ; Fitzgerald v. Fitzgerald, 8 C. B. 592 ; Bac. Abr. tit. Baron and Feme, c. 2 ; but see infra, " ]\Iar- ried Women's Property Act, 1870," Part 4, 0. 2, s. 3. (p) Hicks V. Downing, i Ld. Kaym. 99 ; Wollaston v. Hakewill, 3 !ftl. & G. 297 ; Thorn v. Wool- combe, 3 B. & Ad. 586 ; Parmen- ter V. AVebber, 8 Taunt. 593 ; Beard- man r. Wilson, L. R. 4 C. P. 57 ; 38 L. J. C P. 91. See Precce v. Cor- rie, 5 Bing. 24, unless the lease be by verbal agreement; or unless it be the manifest intention of the parties to create a lease, see Wil- liams V. Hayward, 28 L. J. Q. B. 374 ; Pollock V. Stacey, 9 Q. B. 1033 ; Baker v. Gostliug, i Bing. N. C. 19 ; but as to the recovery of rent, see post, c. 4, s. 6. {q) Mackray v. Mackreth, 4 Doug. 213. (r) O.x^ley v. James, 13 M. & W. 209. (s) Pike r. Eyre, 9 B. & C. 909 ; Curtis V. Wheeler, Moo. & M. 495. (t) Rex V. Aldborough, i East. 598 ; Shep. Touch. 268. (u) Sureper v. Randal, Cro. Eliz. 156 ; Sparke's case, Cro. Eliz. 156 ; Moss V. Gallimore, i Doug. 279 ; Jones V. Clerk, Hard. 47 ; Dinsdale V. lies, 2 Lev. 88. S. C, Sir T. Ray, 224, I Ventr. 247 ; Birch v. Wright, I T. R. per Buller, J., 382. OF LESSORS. 9 5. Joint-Tenants, Tenants in Common, and Coparceners. Joint-tenants should join in making a lease, for if one of two joint-tenants make a lease of the whole, bis moiety only will pass {v) ; and if a lease purporting to be made by both is executed by one only, it will pass nothing more than the moiety of him who bas executed it (iv). A lease of his moiety by a joint-tenant, who subsequently dies, will bind the sur- vivor, and this even if the lease be made to commence after the lessor's death (x). Where joint-tenants make a lease, and one dies, the survivors are entitled to the whole rent, and the interest of the lessee continues (y). Tenants in com- mon cannot make a joint-lease of the whole of their estate (z) ; and if the lease purport to do so, it is merely the lease of each for their respective parts, and the confirmation of each for the part of the other ; neither is there any estoppel, because an actual interest passes from each respectively (a). If one joint-tenant or tenant in common makes a lease for years of his part to his companion, this is good, and such a lease extinguishes the jointure for the time, and gives a right of distress (6). A joint-lease by coparceners operates as a several demise by each of her own share (c). One coparcener cannot sue separately for her portion of the rent accruing to her and her fellows upon a lease made by the ancestor [d\ although it would probably be different if the lease had been made by the coparceners. 6. ]\Iortgagor and Mortgagee. All leases made by a mortgagor subsequent to the mort- gage and before the foreclosure, except under an express (r) Bellingbam v. Alsop, Cro. (a) Mantle v. ^yollington, Cro. Jac. 53 ; Co. Litt. i86 a. Jac. 166 ; Brooks v. Foxcroft, (w) Cartwright's case, I Vent. 136. Clayt. 137 ; Jurdain v. Steere, Cro. (a;) Grute v. Locroft, Cro. Eliz. Jac. 83; Com. Dig. tit. Estates, 287; Harbin r. Barton, Moor. 395; (G) 6, (K) 8; Bac. Abr. , Joint- Whitlock V. Horton, Cro. Jac. 91 ; Tenants and Tenants in Common, Bellingbam v. Alsop, Cro. Jac. 52 ; (H) i ; i Roll. Ab. 877, (L) 48, Clerk I'. Clerk, 2Vern.323,Litt. s.289. 52. (?/) Henstead's case, 5 Co. Rep. (6) Bac. Abr. tit. Leases, (I) 5, 10 b ; Doe d. Aslin v. Summersett, p. 401 ; Co. Litt. 186 a; Cowper v. I B. & Ad. 135, 140. Fletcber, 34 L. J. Q. B. 187. (2) Com. Dig. Estates, (K) 8 ; (c) Milliner v. Robinson, Moore, Burne r. Cambridge, i Moo. & R. pi. 939. 539; Heatberly d. Worthington v. [d) Decharms v. Horwood, 10 Weston, 2 Wills. 283 ; Doc v, Er- Bing. 526. ringtoQ, I A. & £. 750. CHAP. I. CFIAP I. lO CIIEATIOX OF TENANCY. power (e), are void as against the mortgagee (/"); but such leases are by estoppel good as betweea the parties (g). The mortgagee in possession cannot make a lease so as to bind the mortgagor if he should afterwards redeem (A), unless to avoid an apparent loss, and merely of necessity (j). In practice, when it is necessary to make a lease of the mort- gaged premises, both mortgagor and mortgagee should join in the lease (j). 7. Lords of the Manor and Copyholders. Lords of manors may make voluntary grants of copyholds as well as admittances, according to the custom of the manor (^). Where there is no custom for that purpose, the lord of the manor cannot make a new grant of copyhold (I). By 13 Geo. III. c. 81, s. 15, lords of manors, with the consent of three-fourths of the commoners, may demise for not more than four years any part of the wastes and commons, not exceeding one-twelfth part, for the best rent that can be ob- tained by auction, the same to be applied in draining, fencing, and improving the residue. A copyholder cannot make a lease for more than one year without a license or by special custom, without thereby in- curring a forfeiture of his estate (wi) ; but he may for a less term by custom of the manor (n). By special custom a copy- holder may make a lease for years, or for life, without license from the lord (0). A custom for copyholders in fee to lease for any number of years, without license, on condition of the term ceasing on the lessor's death, is a good custom (p). The powers of leasing given by sect. 32 of 19 t^ 20 Vict. c. 120 (2'), are extended by 21 & 22 Vict. c. 77, s. 3, to the lords of settled manors who may give licenses to their copy- (e) Bevan v. Habgood, 30 L. J. (i) Badger v. Ford, 3 B. & Aid. 153. Ch. 107. (I) Hex V. Hornchurch, 2 B. & (/) Powell on Mortgages, 157; Aid. 189; Rex i'.Welby,2 ]\r.& S.504. Keech v. Hall, i Doug. 21 ; (m) Anon. Moor. 184 ; East. v. Thunder d. "Weaver v. Belcher, 3 Harding, Cro. Eliz. 489 ; Jackman East. 449-451. V. Hoddesden, Id. 351. (p) Cuthijertson v. Irving, 28 L. (n) i Scriven on Copyholds, 457. J. Ex. 306. As to what is a lease by a copy- (h) Powell on Mortg. 188 ; holder for more than one year, see Franklinski V. Ball, 34 L. J.Ch. 153. Lady Montague's case, Cro. Jac. (i) Hungerford ■i;. Clay, 9 Mod. i. 301 ; Luttrell v. Weston, Id. 308 ; (j) Doe d. Barney v. Adams, 2 Matthews ?;.Whetton, Cro. Car. 233. C. & J. 232 ; Doe d. Hughes v. (o) i Scriven on Copyholds, 457. Bucknell, 8 C. •) Hadden i>. Arrowsniith, der, i Q. B. 416; Doe d. Robin- Owen, 73 ; Cro. Eliz. 461 ; Jacksou son v. Bousfield, 6 Q. B. 492. V. Neal, Cro. Eliz. 394 ; Com. (v) Com. Dig. Copyliold, (K) 3. Dig. tit. Copyhold, (K) 3. Though (w) Smith v. Barrett, i Sid. 161. if he do so, it is a good lease, except {x) Ecclesiastical Cummissioners against the lord, who may claim the r. Merrall, L. R. 4 E.\. 162; 38 forfeiture or waive it. Doe d. Hob- L. J. Ex. 93. Doe d. Pennington inson v. Bousfield, 6 Q. B. 492. v. Taniere, 12 Q. B. 998 ; but see («) Goodwin v. Longhurst, Cro. Finlay v. Bristol and Exeter Ry. Eliz. 535 ; "SVorledge v. Benbury, Co., 7 Exch. 415. Cro. Jac. 437 ; Isherwood v. Old- (1/) By consent they may grant a know, 3 M. & S. 382 ; Easton v. lease for 999 years ; and see 37 & 38 Pratt, 2 H. & C. 676. Vict. c. 59, where forms of lease (t) Com. Dig. tit. Copyhold, and assignment are giveu iu the (C) 3. schedule. («) Doe d. Tressider v. Tressi- 12 CREATION OF TENANCY. CHAP. I. leases (z), and building leases for terms not exceeding seventy- live years. TrusU'es i.f settk'd estates. By the 19 & 20 Vict. c. 120 (a), tlie Court of Chancery may authorise leases of settled estates on certain conditions, if the application be unopposed (b). fhaHtie'r^"^ By the 16 & 17 Vict. c. 137, the 18 tk 19 Vict. c. 124, and the 23 and 24 Vict. c. 136, trustees of charities have power to lease lauds (c). By local autho- rities. Ilailway com- jjauies. Ecclesiastical and eleemo- synary cor- puraiious. Enabling Blatule. The local authority under the Artisans' Dwellings Act, 38 & 39 Vict. c. 36, s. 9, has power to grant leases under certain conditions. The local authority under the Public Health Act, 1875, 38 & 39 Vict. c. 55, s. 177, may let for any term any lands which they may possess. In making leases a railway company must strictly comply with the terms of its Act of Parliament, and the lease must contain all proper and usual covenants on the part of the lessee for maintaining the railway in good repair and working condition (c/). At the common law, ecclesiastical corporations aggregate and eleemosynary corporations could make any lease they thought fit to make consistent with their estate, and so could ecclesiastical corporations sole, with the consent of certain other persons. Thus, for example, archbishops and bisht)ps could make leases with the consent of their deau and chapter (e). By the 32 Hen. VIII. c. 28, s. i (called the Enabling Statute) (/ ), all persons seised of lands in fee-simple in right (2) Att.-Gen. v. Gt. Yarmouth, 21 Beav. 625. (a) Amended by the 21 & 22 Vict. c- 77j 27 & 28 Vict. c. 45. (6) In re Merry, 36 L. J. Ch. 168. Where there is no power to grant leases in the settlement, see Savile r. Bruce, 29 Bea. 557 ; Oust v. Middleton, 3 De G. F. & J. 33. (c) See also 35 k 36 Vict. c. 24, ss. 10, II, as to the effect of incor- poration of trustees and the use of the common seal. {d) 8&9 Vict. c. 20, s. 112. Kent Coast Rv. Co. V. L. C. & D. Ry. Co., L. R. 3 Ch. 656. ((') Bishop of Salisbury's case, 10 llep. 60 ; Anon. Dyer, 58 b, pi. 7 ; Co. Litt. 301 a ; Bac. Abr. Leases, (G) 2. As to the persons by whom confirmation is to be made, see Woodfall, Landlord and Tenant, p. 21, loth ed. (/) This Act has been repealed by 19 & 20 Vict. c. 120, except so far as relates to leases made by persons having an estate in right of their chuiches. OF LESSORS. 13 of tlieir churclies {g), (except parsons and vicars) (//), conld .ciiap^i. make leases for twenty-one years, or three lives, without tlie confirmation of any person, provided they conformed to tlie conditions imposed by the statute. These large powera were found inconvenient in practice, and have been restrained by several statutes (/), the result of which is as follows : — 1. Where archbishops and bishops do not follow the pro- Disai.iing visions of the statute 32 Hen. VIII. c. 28, they may make ^'"'"'''*" leases for twenty-one years, or three lives (but for no longer period), with the confirmation of their deans and chapters, so that they pursue the provisions of the i Eliz. c. 19 {j). 2. All other ecclesiastical corporations sole, including parsons and vicars ivith confirmation, and all ecclesiastical and eleemosj'nary corporations aggregate (k) ivithout confir- mation, may make leases for the like period, following the provisions of the i Eliz. c. 19, 13 Eliz. c. 10, and 18 Eliz. c. 1 1 ; but all ecclesiastical and eleemosynary corporations (except archbishops and bishops) may lease their houses in cities and towns, corporate boroughs, or market-towns, with not more tlian ten acres of land appurtenant, for forty years, subject to the provisions of the 14 Eliz. c. 11, ss, 17, 16 (/). {g) This extends to prebendaries, chancellors, archdeacons, precen- tors. Acton V. Pritcher, 4 Leon. 51 ; AYatkinson v. IManu, Cro. Eliz. 349; Bisco v. Holt, Lev. 112, Sid. 158. It has been doubted -whether a perpetual curate is within this Act. Doe d. Richardson v. Thomas, 9 A. & E. 556. (h) See sect. 4. (i) The following are ihe Disab- ling Statutes : — I Eliz. c. 19 ; 13 Eliz. c. 10 ; 14 Eliz. c. I r ; 18 Eliz. c. 1 1 ; 39 Eliz. c. 5, s. 2 ; I Jac. I. c. 3. By the 43 Eliz. c. 9, s. 8, all judg- ments had for the intent to have and enjoy any lease contrary to the above statutes, are declared void. 0) See Bac. Abr. tit. Leases, p. 330- (k) Case of Magdalen College, 1 1 Kep. 76. (?) Bac. Abr. tit. Leases, p. 331 ; Crane v. Taylor, Hob. 269 ; Hunt V. Singleton, Cro. Eliz. 564. The three statutes (13 Eliz. c. 10, 14 Eliz. c. II, 18 Eliz. c. 11) are to be read together as forming one law on the same subject-matter, and where leases of houses, &c., which were exempted out of the 13 Eliz. by the 14 Eliz., do not observe the provisions of the latter statute, they fall within the general enact- ments of the first statute, and are made void thereby. In other words, a lease not warranted by 14 Eliz. remains restrained by the 13 Eliz., which makes leases against that Act void. Per Tindal, C.J., in Vivian V. Blomberg, 3 Bing. N.C. 324, 325. It is apparent from the statutes 32 Hen. VIII. c. 28, and 13 Eliz. c. 10, that the Legislature meant to con- fine the authority to let to lands formerly let, and capable of pro- ducing profit. Goodtitle ). All of which leases are sub- ject to certain restrictions and conditions for the benefit of their successors ; and it must be made to appear to the satis- faction of the Ecclesiastical Commissioners that such leases are for the permanent advantage of the estate before their consent is given (to). By the 14 & 15 Vict. c. 104, entitled "An Act to facili- tate the Management and Improvement of Episcopal and Capitular Estates for England " {x), ecclesiastical corporations are enabled, with the approval of the Church Estate Commis- sioners, from time to time, to grant mining or building leases as therein mentioned {y). 9. Parish Officers, ens overseers. The 59 Geo. III. c. 12, s. 17, vests in the churchwardens churchward and overseers of the poor, in the nature of a body corporate, ^^^ all buildings, lands, and hereditaments belonging to the parish {z). And this Act, its object being the proper manage- ment of parochial property, applies to those cases only where the rents are applicable solely to parochial purposes, which (t) Sect. I. lands (Warner's case, Cro. Jac. 532), (m) Sect. 4. yet, in general, neither churcliwar- (v) Sect. 6. dens nor overseers, separately or (w) 21 & 22 Vict. c. 57, s. r. conjointly, in respect of their official (x) Amended by 17 & 18 Vict, capacity, had any legal interest in c. 16; 17 & 18 Vict. c. ir6 ; 19 & 20 parish property to demise. Co. Vict. c. 74 ; 20 & 21 Vict. c. 74; Litt. 3 a; Doe a!. Grundy v. Clarke, 22 & 23 Vict. c. 46 ; 23 & 24 Vict. 14 East. 488 ; Phillips v. Pearce, 0. 124; 24 & 25 Vict. cc. 105, 131; 5 B. & C. 433; Doe d. Higgs v. 30 & 31 Vict. c. 143 ; 31 & 32 Vict. Terry, 4 A. & E. 274 ; Doe d. Hobbs c. Ill ; 31 & 32 Vict. c. 114, s. 9. V. Cockell, 4 A. & E. 478 ; Doe d. (y) Sect. 9. Norton v. Webster, 12 A. & E. 444, (2) Previous to the passing of this note (a). But before the statute, a Act, great difficulty was experienced person holding under a lease granted on the subject of leases of parisli by parisli officers, of lands belonging property ; for although, by special to the parish, was a tenant from custom of London, the parson and year to year. Doe rf. Higgs v. churchwardens of a parish were a Terry, see supra ; Doe d. Uobbs corporation to purchase and demise v. Cockell, see supra. i6 CREATION OF TENANCY. CHAP. I. are under the control of parish officers (a) ; and the terms of the statute must be strictly followed in the execution and drawing of the leases (/>). Copyholds do not appear to be within the Act (c). Guardians in socage. Testamentary Kuardians. 10. Guardians. A guardian in socage (d) may make leases of the infant's land in his own name, for he has not merely a bare authority but an interest in the land descended (e) ; and a guardian by election has a similar power of leasing the estate of the infant (/). Such leases, if they extend beyond the time of the guardianship, may be confirmed by the infant on attain- ing full age (ff). A guardian by nurture cannot make any leases either in his own name or in the name of the infant (A). It is said that he may make a lease at will (i). A testamentary guardian, or one appointed pursuant to the 12 Car. II. c. 24, ss. 8-1 1, is the same in interest and office as a guardian in socage (/). But it has been doubted whether a lease for years, made by the testamentary guardian of an infant, is not absolutely void (k). A guardian appointed by the. Lord Chancellor must obtain (a) -Pe?- Tarke, B., Utliwatt v. Elkins, 13 M. & W. 777 ; Allason r. Stark, 9 Ad. & E. 255 ; Att.-Gen. r. Lewin,8Sini,336. See also Goulds- worth V. Knight, II M. & W. 337 ; Smith V. Adkins, 8 M. & W. 362 ; St. Nicholas, Deptford, v. Sketch- ley, 8 Q. B. 394 ; Rumball v. Munt, 8 Q. B. 382 ; Doe d. Edney r. Ben- ham, 7 Q. B. 976 ; Doe d. Bowley V. Barnes, 8 Q. B. 1037. (6) Phillips V. Pearce, 5 B. & C. 433 ; Doe d. Landsell v. Gower, 21 L. J. Q. B. 57; 17 Q. B. 589; Woodcock V. Gibson, 4 B. & C 462. ((') Doe d. Bailey v. Foster, 3 C. B. 215. (r/) Bac. Ahr. tit. Leases, (i) 9. See Crabb's Digest of the Statutes, vol. i. p. 39. (e) Sho])land v. Ryoler, Cro. Jac. 55~59) I Blac. Com. 461, Co. Litt. 87 b ; R. V. Oakley, 10 East. 494 ; Eyre v. Countess of Sliaftesbury, 2 P. AVms. 108 ; R. V. Sherrington, 3 B. & A. 714; R. V. Sutton, 3 A. & E. 597. See also Wade v. Baker, I Ld. Raymond, 131 ; Osborn r. Garden, Plowd. 293 ; Willis v. Whitewood, i Leon. 322, Keilw. 46 b. (/) I Blac. Com. 462; Co. Litt. 87 b ; Pitcairn v. Ogbourne, 2 Ves. 375- (g) Bac. Abr. tit. Leases, (i) 9. (h) Bac. Abr. tit. Leases, (1) 9. (i) Willis V. Whitewood, Owen, 45, I Leon. 322; Pigot v. Garnish, Cro. Eliz. 678 ; Bac. Abr. tit. Leases, (i) 9. (j) Ibid. See i Blac. Com. 462 ; R. V. Thorp, Carth. 384 ; Pigot v. Garnish, Cro. Eliz. 678, 734 ; Roach V. Garvan, i Ves. 158. (A) Roe d. Parry v. Hodgson, 2 Wils. 129, 135. A devise to a per- son as guardian, th.at he may '' re- ceive set and let " for his ward, gives him an authority only, and nut an interest. Pigot v. Garnish, Cro. Eliz. 678. OF LESSORS. 17 the sanction of the Court of Chancery before he can make a chap i. lease (/). II. Executors and Administrators. Executors and administrators, after they have obtained Executors and letters of administration, may, by virtue of their office, dis- 'I'l^'"'^""*'""- pose absolutely of terms of years, which are vested in them in right of their testators or intestates (?«). A lease by one of several executors is as valid as if made by all, and the same rule applies to administrators (n). AVhere a testator specifically bequeathed by will a term of years, and the executor or administrator with the will annexed assents to the bequest, and afterwards leases the same, such lease would be void, as the legal interest in the term is vested in the legatee upon such assent (0) ; but until then, the term remains in the executor, who can dispose of the same []'')• An infant may be appointed executor, but if sole executor, by the 38 Geo. III. c. 87, s. 6, he is altogether disqualified from executing his office during his minority ; and adminis- tration, with the will annexed, is usually granted to the guardian of such infant, or to such other person as the Court shall think fit, until such infant attains twenty-one (5). A married woman may be appointed executrix, but her husband has a joint-interest with her in the effects of the testator. She can, therefore, do no act as executrix or admini- stratrix without her husband's consent. The husband is enabled by law to assume the whole administration, and to act in it to all purposes without her consent (?•). (I) See II Geo. IV. & i Will. 539; Young r. Holmes, i Stra. 70 ; IV. c. 65, s. 12 ; 19 & 20 Vict. c. Doe d. Lord Say and Sole v. Guy, 3 120, amended by 21 & 22 Vict. c. East. 120 ; Johnson v. "Warwick, 17 n\yi ^ 38 Vict. c. 33; Rex V. C. B. 5x6; Fenton v. Clegg, 9 Sutton, 3 A. & E. 608; Re, James, Exch. 680; Doe d. Sturgess v. deceased, L. R. 5 Eq. 334, See Tatchell, 3 B. & Ad. 675. ante, p. 5, Tenant for Life. (p) Doe d. Maberley v. Maberley, (m) 2 Wius. Executors, 878, 6th 6 C. & P. 126; 2 Wms. on Exors. edition; Bac. Abr. tit. Leases, (i) 1275,6th edition. 7 ; Roe d. Bendall v. Summerset, (7) i Wms. on Exors. 222, 6th 2 Wm. Blac. 692 ; Wankford v. edition ; Finch's case, 6 Co. Rej). 'Wankford,i Salk. 302 ; Hudson v. 63; Prince's case, 5 Co. Rep. 29; Hudson, I Atk. 461. Cro. Eliz. 718. (n) Doe d. Hiiyes v. Sturges, 7 (?•) See }wM, IMarried AVomen, Taunt. 217; Simpson v. Gutte- p. 20; Arnold v. Bidgwood, Cro. ridge, i Mad. 609,616. Jac. 318; Thrustout d. Levick v. (0) Paramour v, Yardley, Plowd. Coppiu, 2 "Wm. Blac. 801. B i8 CREATION OF TENANCY. CHAP. I. Trustees of baukrupts. 12. Trustees of Bankrupts. Leases could formerly be made by assignees of bankrupts, and may now be made by the trustees under the new Act (s). T^inatics and idiots. 13. Persons under Disability. A lease executed by a person of unsound mind, in the ordinary course of affairs, is binding on him and those who represent him, unless it can be shown that the lessee had notice of the lessor's state of mind. If it can be proved that the lessee knew, or ought to have known, of the lessor's incapa- city, and took advantage of it, a lease executed under such circumstances is void (t). By the 16 & 17 Vict. c. 70, s. 129, the committee of a lunatic may make building and other leases ; by sects. 130 and 131, he may make mining leases; by sect. 133, he may execute leasing powers of a lunatic having a limited estate ; by sect. 134, he may renew leases (u). And by the 15 & 16 Vict. c. 48, committees of lunatics can direct repairs and improvements upon the land of lunatics, or make allowances to tenants executing the same. By the 36 sect, of the 19 & 20 Vict. c. 120, all powers (f) given by that Act, and all applications to the Court of Cliancery, and consents to such ajtplications (tv), may be given by the committees on behalf of lunatics ; but in case of a lunatic tenant in tail, no application to the Court, or consent to such application, is to be made or given by com- mittees without the special direction of' the Court. Persons in a state of intoxication. A lease made by a person when deprived of his reason by drink is void, if the lessee had notice of the lessor's in- capacity (x). (s) See the 32 & 33 Vict. 14, pi. 4 post. Part 4, 71- (t) Molton V. Camrour, 2 Ex. 487, in error, 4 Ex. 17 ; Elliot v. I rice, 7 De G. M. & G. 475, 487, 26 L. J. Cli. 821 ; Beavan v~ M'Don- nell, 10 Ex. 184, 23 L. J. Ex. 327- (?() As to disposing of undesir- able leases, see sect. 127. ((•) See ante, Tenants for Life, p. 3- (".') See the 37 & 38 Vict. c. 33. (x) Gore V. Gibson, 13 M. & W. 623. See Per Alderson, B., iu Molton I'. Camrour, 2 Ex. 491 ; Pitt V. Smith, 3 Camp. 33. OF LESSORS. 19 A lease made b}' a person iinder duress is voiduble at tlie chap. 1 election of the party intimidated. Duress is defined to be person7uDd*r where one is manifestly imprisoned or restrained of hi3 'duress, liberty contrary to law, until he executes a deed or bond to another {y). Real estate was not forfeited on conviction for treason or Persons attainted felony without attainder ; and persons attainted of treason "' *'""**«''' or felony might, before oflice found, lease their lands, except as against the Crown, or the lord of whom the land is held (z). And now, by the 33 & 34 Vict. c. 23, forfeitures for treason or felony are abolished, except forfeiture consequent upon outlawry. A convict {a), against whom judgment of death or penal servitude has been pronounced or recorded upon any charge of treason or felony, is, while subject to the Act, incapable of alienating or charging any property, or making any contract, except as thereinafter provided (6). By sects. 9 to 12, an administrator xinder the Act has absolute power to let, mortgage, (fee, any part of the property of the convict which he shall think fit. By sect. 18, the property reverts to the convict, except so far as is necessary for the care of the jjroperty, upon com- pletion of his sentence or pardon, or to Lis representatives upon his death. By 22 . (a) See sect. 6. 44 ; Chowne v. Bay lis, 31 Beav. (6) Sect. 8. See sect. 30, where 351. the convict is lawfully at large. 20 CREATION OF TENANCY. CHAP. r. A lease by a feme covert is void at common law, and no Married women. Subsequent act of confirmation, after the removal of the dis- ability, can render such a lease valid {d). For by marriage the free agency of the wife is suspended, and the husband acquires an immediate right to the rents and profits of her freehold estates (e). Without his consenting to and joining in the disposal of her lands, all conveyances by her are void at common law, and over her chattel interests (not being choses in action) the husband has the sole dominion during his life (/). By the Act for the abolition of fines and recoveries {g), married women, being tenants in fee, in tail, or for life, or for years, may make leases by deed for any term consistent with their estates, provided the husband concurs in the deed, and the wife acknowledges it before a judge, or before two perpetual commissioners, as directed by the Act (A), or before a county court judge {%). A married woman, who has property settled to her sepa- rate use without any restraint on alienation, is deemed in equity to be a feme sole, and she may dispose of it accord- ingly ( j). And property acquired by a married woman under the " Married Women's Property Act, 1870 " {Ic), is deemed to be property held and settled to her separate use. Infants. A lease made by an infant (1) or person under the age of twenty-one years (»i) is voidable by him {11), unless it be for his benefit (0), upon his attaining full age, or by his heir upon his death (/;). Generally if a contract be for the benefit of the infant it will bind him ; if it be to his prejudice, it is void ; but if it is not distinctly to his prejudice or for his (d) Goodrightd Cai-terv. Strahan, (k) See infra, Part 4, c. 2, s. 3. Cowp. 201, Lofft. 763. (I) See post, c. 2, s. i. (c) See ante, p. 6, Husband Leas- (m) By custom in some places an ing Wife's Laud. infant is of full age at fifteen to (/) Manbyv. Scott, Smith's L. C. make leases that shall bind him. 2 ; lilac. Com. 293 ; Co. Litt. 46 b. Co. Litt. 45 b. But see post, " Married Women's (n) Bac. Abr. Leases ; Zouch d. Property Act, 1870," Part 4, c. 2, Abbot v. Parsons, 3 Burr. 1806 ; s. 3. 4 Cruise, 74, s. 67; per Best, J., in {9) 3 & 4 Will. IV. c. 74, ss. 77- Goode r. Harrison, 5 B. & Aid. 159 ; 79. and per Buller, J., in Madden v. (h) Sect. 79. White, 2 T. K. 161. (i) 19 & 20 Vict. c. 108, 8. 73. (0) Ketsey's case, Cro. Jac. 320; The lease requires enrolment in Maddon v. White ; Zouch v. Par- Chancery if the married woman is sons, supra. a tenant in tail, ^ee ante. Tenants {p) Baylis i\ Dineley, 3 M. & S. in Tail, p. 2. 477; Litt. s. 547. (j) Sugden on Powers, c. 4, s. i. OK LESSORS. 21 benefit, it is voidable at Lis election (q). In the case of a lease by an infant, it seems that the presumption is tliat it is for his benefit (r). To avoid a lease made by an infant, under which the lessee is in possession, some act of notoriety is necessary on the part of the infant upon attaining twenty- one ; for instance, ejectment, entry, or demand of possession. The mere execution of a new leiise to another lessee is not sufficient to divest the estate created by the first lease (a). The infant must elect to avoid the lease within a reasonable time after coming of age (i). The chief point to be attended to is, whether the lease was for the benefit of the infant, for if so, it cannot be avoided by him (»/). And slight acts have been held to amount to a confirmation of such leases. Thus where an infant made a lease for years, and at full age said to the lessee, " God give you joy of it," this was held to be a confirmation of the lease (p). So where an infant makes a lease, and accepts rent after coming of age, be thereVjy affirms the lease (w), but not if the lease be invalid (.r). So where an infant made a lease of land, and after attaining full age mortgaged the land by a deed which recited the lease, this was held to be a confirmation of the lease (y). A lease made by an infant cannot be avoided on that ground by an adult lessee (z). An infant can make a lease without rent, to try his title (o). The 37 & 38 Vict. c. 62 provides that no action shall be brought whereby to charge any person upon any ratification made of any contract made during infancy, whether there shall or shall not be any new consideration. The lease of an infant, to be good, must be his own personal act, for he cannot appoint an agent. Therefore a lease made by his next friend or agent cannot bind him, nor can he ratify it after he is of full age (6). But an infant is bound by a lease made in his corporate ca})acity (c). Thus a lease by the king or queen regnant, whether of lands held (7) Keane t'. Boycott, 2 H. Bl. 511. {w) Ashfield i: Ashfield, Sir W. (r) Baylis v. Dyiieley, supra ; N. Jones, 157. W. Kailway Co. v. M'Michael, 5 (x) See Robson v. Flight, 4 De Exch. 126. G. J. & S. 608. (s) Slater v. Trimble, 14 Ir. Com. (v) Story v. Johnson, 2 J. & C. L. R. 342, Q. B. ; Slater v. Bnnly, Exch. 586. ib. 66. (r) Zouch (J. Abbott v. Parsons, (<) Evelyn r. Chichester, 3 Burr. 3 Burr. 1806; Bac. Abr. Infants, 1717 ; Holmes r. Blogg, 8 Taunt. 39. T. 4. (u) Zouch il. Abbot v. Parsons; {a) Zouch d. Abbot v. Parsons. Maddon v. "White; Baylis r. Dine- 3 Burr. 1798. ley, supra; Ex parte Grace, i B. & (b) Doe d. Thomas v. Roberts, 16 P. 377. M. k W. 778. (v) Anon. 4 Leon. 4 ; Bac. Abr. (c) Bro. Abr. tit. Age, pi. 80. tit. Estate, B. 22 CREATION OF TENANCY. C ITAP I. in right of the Crown or of the Duchy of Lancaster, cannot be avoided on the ground of infancy (d). By the ii Geo. IV. and i Will. IV. c. 65, ss. 16, 17, infanta are empowered to grant renewals of leases under the direction of the Court of Chancery, and the Court can direct leases of land belonging to infants when it is for the benefit of the estate (e). (d) Case of Duchy of Lancaster, p. 3 ; 19 & 20 Vict. c. 120 ; and Dyer, 209 b, Plowd. 212 b. Guardians, ante, p. 16. (f) See ante, Tenants for Life, 23 ) CHAPTEE 11. OF LESSEES. Persons under Dis. PAGE VBILITY— 2. Corporations— PAOB lunatics persoiis outlawed ... aliens and denizens married women infants ... 23 ... 23 ... 23 ... 24 ... 24 corporations ecclesiastical persons local authorities ... 3. Parish Officers, &c. ... 25 ... 25 ... 26 ... 26 All persons are capable of being lessees of demisable pro- perty ; in some cases demises, however, may be avoided in respect of the persons to whom they are made (a). I. Persons under Disability. ) Idiots and lunatics may take leases for their own benefit (h). Lunatics. The coinmittee of a lunatic may surrender leases and accept renewals for the benefit of the lunatic, upon certain condi- tions, under the 16 & 17 Vict. c. 70, ss. 113-115; and the committee, or an attorney appointed by the lord of the manor, may, by sect. 108, be admitted tenant of copyhold land on behalf of the lunatic. Outlaws may be lessees, but leases taken by them for Persons out. chattel interests are forfeited to the Crown (c). Persons [aln'ted' *'" attainted may be lessees, but their leases were forfeited to the Crown (d). But by the 2;^ & 34 Vict. c. 33, ss. i, 10, forfeiture for treason or felony, except that consequent upon outlawry, is abolished, and the property of the convict vests in the administrator under the Act [e). At common law an alien friend might take a lease of a Aliens and deni- house or of lands ; but the estate thereby granted upon ^'^°^' (a) 2 Cruise Dig. 79, s. 85 ; Brittain v. Cole, i Salk. 395 ; Bac. Kettley v. Elliot, Cro. Jac. 320 ; Abr. tit. Outlawry, (D) 2. Brownl. 120, 2 Bulst. 69. {d) Co. Litt. 2 b ; bhep. Touch. (/') Co. Litt. 2 b. 235. (c) Knowles v. Powell, Owen, 16; (e) See ante, p. 19. 24 CREATION OF TENANCY. CHAP. II. office found would forthwith devolve to the Crown (/). But an alien friend who is a inercliant might take a lease of a house for carrying on his trade, and the Crown could not seize such lease, unless he abandoned the realm (jj). An alien husband will not be entitled to a terra vested in the wife (A). By the Naturalization Act, 1870, 33 & 34 Vict. c. 14, s. 2, aliens may take and dispose of real and personal property as fully as if they were natural-born subjects (i). Alien enemies cannot hold leases for any purpose whatever. A denizen (7) may take lands by purchase or devise, but not by inheritance. He may therefore be a lessor or lessee {Ic). Married women. A feme covevt (I) Can take a lease, her husband's express assent not being necessary, as the estate vests till dissent. But she may avoid it after his death (rn). If a lease be made to a husband and wife, and she agree to it, she must pay the rent, and she will be chargeable with the arrearages incurred during the coverture and for waste (»). By the i Will. IV. c. 65, ss. 12, 15, leases to married women, under the direction of the Court of Chancery, may be surrendered and renewed as therein stated. Infants. Infants may accept leases, and upon attaining full age (/) Co. Litt. 2 b ; Shep. Touch. Jevens v. Harridge, i Wms. S.aund. 235 ; Calvin's case, 7 Hep. 49. As 5th ed. 6, and notes ; Co. Litt. 2 to purchases by an alien in the b ; and Hargrave and Butler's notes, name of a trustee, see K. v. Hoi- n 7. See Tilkington v. Peach, 2 land, Styles, 20 S.C. i Roll. Abr. Show. 134. Lapierre v. M'Intosh, 194. I. 13- 9 Ad. & E. 157; Wootton i: Stef- (g) Co. Litt. 2 b ; see R. v. East- fenoni, 12 M. & W. 129 ; Bailey v. bourne, 4 East. 107. But on the Cathery, i Dowl. N.S. 456. death of the lessee the lease shall {j) Co. Litt. 129 a; Calvin's case, go to the Crown, and not to his exe- 9 Kep. 25 b. cutors or administrators. Co. Litt. (A-) i Blac. Com. 374, See 12 k 13 2 b; but see Anon, i And. 25, and Will. III. c. 2. Sir Upwell Caroon's case, Cro. (/) See post, Part 4, c. 2, s. 3. Oar. 8. (m) Swaine v. Holman, Hobart, (h) Theobald v. Duffy, 9 Mod. 204 ; Co. Litt. 3 a. See Gaston v. 102 ; 2 Vin. Abr. 260. Erankum, 2 De G. & S. 561, as to a (t) Sect. 5 of 7 and 8 Vict. c. 66 married woman's separate estate in effect repealed the 32 Hen. VIII. being bound for payment of the c. 16, s. 13, by which all leases of rent. dwelling-houses or shops to an alien (n) Com. Dig. tit. B.aron and artificer or handicraftsman were Feme, s. 2 ; 2 Inst. 303 ; 2 Roll, made void. This Act was strictly 287 ; i Roll. Abr. 349, pi. 2 ; Brownl. construed in favour of aliens. See 31 ; Dyer, 13 b. OF LESSEES. 2$ they may afllrm or avoid them (o). The election to avoid a chap ii. lease must be made by the infant within a reasonable time after he comes of age (p). But it seems that an infant who has taken possession even under a lease which is disad- vantageous to him, is bound, after coming of age, until he disclaims {(j). Even during infancy the burthen ui the estate may be obligatory on him (?•), and he may be liable for the use and occupation of necessary lodgings suitable to his de- gree (s). If a person jointly interested with an infant in a lease obtain a renewal to himself only, and the lease prove beneficial, he shall be held to have acted as trustee, and the infant may claim the share of the benefit; but if it do not prove beneficial, he must take it on himself (t). By the i Will. IV. c. 65, ss. 12, 15, leases to infants may, under the direction of the Court of Chancery, be surrendered or renewed in the mode therein stated. 2. Corporations. Corporations [ii) aggregate may be lessees {v). A lease, Corporations, however, to a corporation sole (for instance, a lease to a bishop and his successors), on the death of the bishop will go to his executors (iv) ; but by custom it may go to his suc- cessors, as in the case of the Chamberlain of London (x). One member of a corporation cannot make a lease to an- other member, nor can he take a lease from the corporation (y). By the I ik 2 Vict. c. 106, s. 28, spiritual persons perform- Ecclesiastical ing the duties of any ecclesiastical office cannot take leases for P*""^""*- occupation by themselves of more than eighty acres of land without the written permission of the bishop of the diocese. Trustees for charitable uses may take leases of land in England or Wales, if made according to the Mortmain Acts (-). (0) Ketsey's case, Cro. Jac. 320 ; ern Railway Co. v. M'jMichacl, 5 Brownl. 120; Eaylis v. Dyiielej', 3 Exch. 114, 20 L. J. Ex. 97. M. & S. 477 ; London and North- (r) London and Xoitli-Western Western Railway Co. v. M'Michael, Railway Co. r. M'Micliael, supra. 5 Exch. 126. (.«) Hands r. Slaney, 8 T. R. 578; (p) Holmes v. Blogg, 8 Taunt. 35. Lowe v. Gritfiths, i Scot. 458. If an infant pay money as a premium (t) Ex parte Grace, i B. & P. 376. for a lease, which he avoids upon («) See ante, c. 1. coming of age, and never derives (v) Bac. Abr. tit. Corporations, benefit from the occupation, he (E) 4. cannot recover such money in an Uc) Co. Litt. 46 b. action for money had and received. (a;) 2 Bac. Abr. 14. Holmes v. Blogg, supra. ()/) Salter r. Grosvenor, 8Mod.303. {q) The London and North West- (z) 9 Geo. II. c. 36 ; 9 Geo. IV. c. 85; 24 & 25 Vict. c. 9; 25 & 26 26 CREATIOX OF TENANCY. Leases made in pursuance of the 31 & 32 Vict, c. 44, entitled "An Act for facilitating the acquisition and enjoy- ment of Sites for Buildings for Religious, Educational, Lib- rary, Scientific, and other charitable purposes," are exempt from the provisions of the Mortmain Act. To local rities. autho- The local authority under the Public Health Act, 1875, 3^ & 39 Vict. c. 55, s. 175, may take on lease any lauds within or without their district. Parish oflicers, By the 59 Geo. IIL c. 12, ss. 12, 17, churchwardens and overseers are made a corporation of a peculiar kind, and can take laud on lease for the purposes of the Act («). Guardians of unions may, by order of the Poor-law Com- missioners, and with the consent of the ratepayers, hire build- ings for union workhouses, pursuant to the 4 & 5 Will. IV. c. 76, s. 23. By the 30 & 31 Vict. c. 106, s. 13, the guardians may, with the approval of the Poor-law Board, hire or take on lease temporarily, or for a terra of years not exceeding five, any land or buildings for the purpose of the relief or employ- ment of the poor, and the use of the guardians or their officers, without any order of the said Board under seal. By the 24 &, 25 Vict. c. 125, overseers of parishes in England, whose population does not exceed 4000 persons, may, subject to the conditions, and for the purposes therein mentioned, take land on lease (b). Vict. c. 17 ; 26 & 27 Vict. c. 106 ; 27 Vict. c. 113 ; 29 & 30 Vict. c. 57; 32 &, 33 Vict. c. no ; 33 & 34 Vict. c. 34 ; and see also 35 & 36 Vict. c. 24, ss. 10, II ; Wickliam v. Marquis of Bath, 35 L. J. Ch. S ; Doe d. Williams v. Lloyd, 5 Bing. N. C. 741 ; Walker v. Richardson, 2 M. k W. 882 ; Att.-Gen. v. Glyn, 12 Sim. 84 ; Ashton v. Jones, 28 Beav. 460. (a) See a7i(e, p. 15 ; Smith v. Adkins, 8 M. & ^W. 362 ; Uth- watt V. Elkius, 13 M. & W. 777; Allason v. Stark, 9 A. & E. 25s; Att.-Gen. v. Lewin, 8 Sim. 366. (b) As to leases to and by trus- tees of friendly societies, see 38 & 39 Vict. c. 60; industrial and provi- dent societies, 39 & 40 Vict. c. 45, s. 12 ; leases to trustees of public baths, 9 & 10 Vict. c. 74. As to canal and railway companies, see 21 & 22 Vict. c. 75, s. 3 ; 23 & 24 Vict, c. 41. As to leases of land for free public libraries, museums, see 18 & 19 Vict. c. 70, s. 18. Leases to building societies, 37 & 38 Vict. c. 42, s. 37. Leases to ratepayers for public improvements may be made pursuant to 23 & 24 Vict. c. 30. A lease cannot generally be granted to the inhabitants of a parish ; see Weekly v. Wildman, i Lord Ray- mond, 405, 407 ; Abbot V. Weekly, I Lev. 176 ; Lockwood v. Wood (ia error), 6 Q. B. 62 ; Constable v. Nicholson, 14 C. B. N.S. 230, 32 L. J. C. P. 240. But see The Vestry of Bermondsey v. Brown, 14 W. R. 213 M. K. ( V ) CHAPTER III. OF THE SUBJECT OF DEMISE. PAO E PAOB corporeal hereditamenis . • 27 corrodies . . . 30 lodyings ■ 27 franchises ... 30 goods and chattels . 28 tolls 30 incorporeal hereditaments 28 offices 30 advowsons . 28 pensions 31 tithes . 28 rents and annui ties ... 31 ccmimons and estovers . 29 other incorporea I hei-edita- uai/s • 29 ments 31 As a general rule, leases for life or lives, for years or at will, may be created of anything corporeal or incorporeal that lieth in livery (a) or in grant (6). Corporeal hereditaments ■wliicli consist wholly of substantial Corporeal here- 1 J 1 • i 1 11 11 t ditameuts. ana permanent objects, such as lands and houses, ikc, were, if in possession before tlie 8^9 Vict. c. 106, said to lie in livery. They are the subjects of demise ; and incorporeal rights appurtenant thereto — for instance, rights of way or other easements — will pass by a demise of the land (c). Parts of any dwelling-house or other tenement may be Lodgings. demised. Where parts of a dwelling-house are let by the occupier, they are called lodgings or apartments {d); and if let furnished, the rent is deemed to issue out of the realty, and not partly out of the furniture {e). (a) Now by the 8 & 9 Vict. c. 106, s. 2, all corporeal tenements and hereditaments are deemed to lie in grant, so far as regards the conveyance of the immediate free- hold. (b) Shep. Touch. 268; Bac. Abr. tit. Leases, (A); 2 Cruise, as. 22-24. (c) Skull V. Glenister, 16 C. B. N.S. 81 ; Dobbyn v. Soniers. 13 Ir. Com. L. Kep. N.S. 293, Q. B. ; Osborne v. Wise, 7 C. & P. 761 ; Clark V. Cogge, Cro. Jac. 170, 190, Staple V. Heydon, 6 Mod. i, 3 ; Howton V. Fearson, 8 T. R. 50, 56; Bac. Abr. tit. Offices, (H). ((/) Monks V. Dykes, 4 M. & W. 567 ; and see Stamper v. Sunder- land, L. K. 3 C. r. 388 ; 37 L. J. MC. 137- (c) Newman v. Anderton, 2 B. & P. New. R. 224 ; Spencer's case, 5 Co. K. 16, I Smith L. C. 36 ; Cado- gan 1). Kennet, Cowp. 432; Collins V. Harding, Cro. Eliz. 606, 13 Co. R. 57 ; Emott's case. Dyer, 212 b. Selby V. Greaves, 37 L. J. C. P. 257. See infra, c. 4, s. i, note {x). 28 CREATION OF TENANCY. CHAP. III. Goods and cliattels may also be leased for years. Thus Goods aiuTchat- Cattle and other live or dead stock may be demised, and the '"'=*• lessee will have the use and profit of them during the term. The interest, however, of the lessee therein dififers from the interest which he has in lands. For the lessor can have no certain reversion in live animals, and though the lessee has no right to sell or destroy them or give theui away, yet, if they die during the term, they become the absolute property of the lessee (/). So, whether they live or die, the young ones coming irora them belong absolutely to the lessee as profits arising from the animals demised. In a lease of dead goods and chattels, however, if anything be added for repair- ing, mending, and improving thereof, the lessor shall have the improvements and additions with the things demised after the term is ended {g). Incorporeal Iiicorporeal hereditaments are rights issuing out of a thing iiLivditaments. corporate (whether real or personal), or concerning or annexed to or exercisable within the same (A). They lie in grant, and are usually capable of being the subjects of a demise. AdTowsons. Advowsons may be demised {i). Thus, if an advowson, or tithes, or any incorporeal hereditament, is leased for years, an action of debt may be maintained for the rent agreed on [j). So if a vacancy occur while an advowson is leased, the lessee shall present, and if the lessee himself accepts a presentation from the lessor, it will be a surrender of his term [k). Tithes. Tithes are an ecclesiastical inheritance collateral to the land, and properly due to an ecclesiastical person (/). (/) Bac. Abr. Leases, (A); Litt. s. Althougli, in comnion parlance, 71 ; Collins v. Harding, Cro. Eliz. tithes were often said to be let to 606. the farmer, and although such ar- (g) Bac. Abr. Leases, (A). See rangements were comnion through- now, however, the Agricultural out Englaiul, and were constantly Holdings Act, 1873, ;jo«(. Appendix. carried into effect witliout deed, (h) Co. Litt. 19, 20. yet in point of fact these species of (i) Kensey v. Langham, Cas. arrangements, made without deed, temp. Talbot, 144 ; Kobinson v. by which the tenant retained the Tongue, 3 P. Wms. 461. See infra, tithes, and paid the clergyman or Tithes, 5 Geo. III. c. 17. For other tithe-owner a A'early sum, transfer of advowsons see 33 & 34 were not leases in the eye of the law, Vict. 0. 39. but mere sales by the tithe-owner {j) 2 Woodd. 69 ; Rog. Ecc. L. 17 ; to the terre-tenant ; an v. out the knowlet. 790. Where a servant, Peake, 192 ; Hope v. Booth, i B. & as part remuneration for his ser- Ad. 498. See infra, Duration of vices, occupies premises of his mas- Term, p. 98. ter without paying rent, in order (») Richardson v. Langridge, 4 to ascertain whether the servant is Taunt. 128; Braithwaite v. Hitch- a substantial "householder" with- cock, 10 M. & W. 497 ; Doe d. Hall in the 43 Eliz. c. 2, s. i, so as to be v. Wood, 14 M. & W. 682. Seethe eligible for the office of overseer of judgment of Williams, J., in The the poor, the question is whether Marquis of Camden v. Battenbury, the occupation is subservient and 5 C. B. N S. 812. necessary to the service? If it is, (o) Doe d. Rigge r. Bell, 5 T. R. the occupation is that of the mas- 471 ; Beale v. Sanders, 3 Bing. N. ter ; if it is not, tlie occupation is C. 850 ; Richardson v. Gifford, i A. that of a tenant, and the servant & E. 52; Doe ■) Brocklington v. Saunders, 13 See Berry r. Lindley, 3 M. & G. 498. W. R. 46. Q. B. {;,) Oakley r. Monk, L. R. i Ex. (s) Martin v. Smith, 43 L. J. Ex. 159 ; 35 L. J. Ex. 87 Ex. Ch. 42 ; L. R. 9 Exch. 50. 40 CREATION OF TENANCY. CHAP. IV. agreement for a lease -where there has been a part performance taking the case out of the Statute of Frauds (,:). It must also be borne in mind, that writings not under seal are void at law only as leases, but they are enforceable as agreements, if they can be construed to be agreements and not leases ; and even if they be clearly leases, and thus void at law, the Chancery Division will decree specific per- formance (a). 2. Recitals. lecitaisv Ptecitals of former instruments, or of some antecedent circumstances which have led to the lease in question, are convenient for the sake of clearness and elucidation. They also explain the intention and meaning of the parties (b). As a lease by deed operates like any other deed as an estoppel, parties are generally prevented from afterwards disputing the facts therein recited (c). The question how far jjarties are bound by recitals in deeds has been much discussed. The doctrine of Lord Coke, that "a recital doth not conclude be- cause it is no direct affirmation " (r/), has been expressly over- ruled. The law on this subject has been thus stated by Parke, B., in Carpenter v. Buller (e) : — " If a distinct state- ment of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that, as between the parties to that instrument and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352 b; and a recital in instru- ments not under seal may be such as to be conclusive to the same extent. A strong instance as to a recital in a deed is {z) See post, Div. II. ch. i. s. 3. clie.ster and Salford Waterwork.s («) See -pod, ch. iv. p. 50. Co., 2 B. & Ad. 544 ; Pargeter r. (6) See Cruise's Digest, title xxxii. Harris, 7 Q. 15. 708; I'.ayley r. Deed, c. xxi. s. 22 ; see Ringer v. Bradley, 5 C. B. 396 ; Young v. Cann, 3 M. & W. 343. Eaineock, 7 C. B. 310 ; Horton v. (c) As to estoppel by recital, see "Westminister Iniiirovenient Coni- Salter v. Kidgley, r Show. 58; missioners, 7E.K. 780; Ifungerford Com. Dig. Estoppel, (A) 2; Veale v. Beechcr, 5 Ir. Eq. K. N.S. 417; r. Warner, i Saund. Wills, 325 a, Pilbrow v. Atmospheric Kailway n. (r) ; the notes to the Duchess Co., 5 C. B. 440; Wiles v. Wood- of Kingston's case, 2 Smith, L. ward, 5 Ex. 557 ; South-Eastern (J. 656 (5th edition); Lainsoii r. Kailw.ay Co. v. Wharton, 31 L.J. Tremere, i A. & E. 762; Bowman Ex. 515. r. Taylor, 2 A. & E. 278 ; Hills r. (d) Co. Litt. 352 b. Laming, 9 Exch. 256 ; K. r. {e) 8 M. k W. 212. Stamper, i Q. B. 123; Hill v. Man- ItKCITALS. 41 found in the case of Lainson y. Tremere (/), where, in a bond cuw iv to secure the payment of rent under a lease, it was recited that the lease Avas at a rent of £170, and the defendant was estopped from pleading tliat it was £140 only, and tliat such amount had been paid. So where other particular facts are mentioned in a condition to a bond, as that the obligor and his wife should appear, the t)bligor cannot plead that he ap- peared himself, and deny that he is married, in an action on the bond (7). All the instances given in Com. Dig. Estoppel, (A) 2, under the head of 'Estoppel by Matter of Writing' (except one which relates to a release), are cases of estoppel in actions on the instrument in which the admissions are contained. By his contract in the instrument itself a i)arty is assuredly bound, and must fulfil it. But there is no authority to show that a party to the instrument would be estopped in an action by the other party, not founded on the deed, and u-liolly collateral to it (h), to dispute the facts so admitted, though the recitals would certainly be evidence. For instance, in another suit, though between the same parties, where a question should arise whether the plaintiff lield at a rent of .£170 in the one case, or Avas married in tlie other case, it could not be held that the recitals in the bond were conclusive evidence of these facts ; still less would matter alleged in the instrument wholly immaterial to the contract therein contained ; as, for instance, suppose an indenture or bond to contain an \innecessary description of one of the ])arties as assignee of a bankrupt, overseer of the poor, or as filling any other character, it could not be contended that such statement would be conclusive on the other party in other proceedings between them." In Bowman v. Taylor (a) a deed recited that the plaintitT had invented certain improve- ments for which he had obtained a patent, and the defendant, in consideration of a license to use it, entered into a covenant, for breach of which the })laintiff sued ; the defendant, by his plea, traversed the invention of the plaintifi", and such plea was held bad on demurrer. The passage from Coke Little- ton above quoted (j) was cited ; but the Court was unaTii- mous in giving effect to the estoppel. " The law of estoppel," said Taunton, J., " is not so unjust or absurd as it has been too much the custom to represent. The principle is, that where a man has entered into a solemn engagement by deed ( /■ ) I A. & E. 792. {[/) Roll. Abr. 873, c. 25. (h) See the South-Eastern Railway Co. i: Wharton, 31 L. J. Ex. 515, 6 H. & N. 520. (0 2 A. & E. 278. (J) 352 b. 42 CREATION OF TENANCY. CHAP. IV. under his liand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. Tlie question here is whether there is a matter so asserted by the defendant under his hand and seal, that he shall not be per- mitted to deny it in pleading ? It is said that the allegation in the deed is made by way of recital ; but I do not see tliat ji statement sucli as this is the less positive because it is introduced by a ' whereas.' " It would therefore appear that, in order to make a recital operate as an estoppel, there must be — (i.) A distinct state- ment (/t) of some material (/) particular (in) fact ; (2.) A contract made with reference to such statement. But if it is the recital by one party of a fact within his knowledge, on the faith of which the other party contracted, the latter may perhaps not be estopped. Thus in Stronghill v. Buck (x), Patteson, J., said, in delivering the judgment of the Court, " When a recital is intended to be a statement which ail parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument. All the cases were brought forward and con- sidered in Young v. Kaincock (0), and we have no doubt that the result of them is as above stated." As to when a recital in a deed amounts to a covenant, see tit. Covenant (p). 3. AVoRDS OF Demise. Pistinction be- The usual words of demise are — "demise, lease, and to tw««n leases f ^g^._" gj^ji any other words Avhich are sufficient to and agree- •' , i ii t j. incuts. explain the intention of the parties, that the one shall divest himself of the exclusive (q) possession, and the other come into it for a determinate time — whether such words run in (A) See Kepp v. Wiggett, 10 C. supra : Doe d. Jeffreys v. Bucknell, ■p, 35. 2 J5. & Ad. 278. (/) Carpenter v. Buller, supra. (n) 14 Q- 1^- 7^7- {m) See Rollc's Abrg. Estoppel, (o) 7 C. B. 310. (P), pi. I & 7; Com. Dig. Estoppel, (p) Post, s. 7. ^ ^ ,, (A) 2 ; Salter v. Kidley, i Show. (q) See R. v. Morneh, 32 L. J. M. 59 ; llainsfonl v. Smith, Dyer, C. 245 ; Taylor v. Caldwell, 32 L. 196 a, note ; Stroud v. Willis, Cro. J. Q. B. 164, 3 B. & S. 826 ; Hand- Eliz. 762. See judgment of Lord cock v. Austin, 32 L. J. O. P. 252, Denmau in Lainson v. Tremere, 14 C. B. N.S. 429. WORDS OF DEMISE. 43 the form of license (r), covenant (n), or agreement (/) — arc of ciivr. iv. themselves sufficient, and will, in construction of law, amount to a lease for years, as etl'ectually as if the most proper and l)ertinent words had been used for the purpose (»). Tims a license to enjoy or inhabit a house has been deemed a demise of it (('). So if A, by articles, covenant with IJ that he shall have, hold, or enjoy certain lands for a certain time, this amounts to a lease ; but if A covenant with B that C shall have, hold, or enjoy them, it is otherwise {«•). So where the owner of the fee agreed to convey the premises to 1> for a certain number of years, at a certain rent, and the instrument contained the usual covenants for payment of rent, &.C., this was holden to be a lease (x). So where A agreed to let, &.C., it was holden to be a present demise (//). So where B agreed " to pay the sum of £140 per annum, in quarterly payments, for the house and premises at, ifec, for the term of seven, fourteen, or twenty-one years, at his option, at the end of every seven years, the rent to commence on the ist January 1827," this was held to be a lease (z). A stipulation tliat a lease shall be afterwards drawn up between the parties, does not of itself indicate an intention that the instrument should not operate as a present demise, but merely that a more formal instrument should thereafter be executed by them, to effectuate the same thing, as being more satisfactory than the present instrument. Therefore, where by articles between A and B, it was covenanted and agreed that A " doth let " certain lands to B, for five years from Michaelmas then next, at a certain rent ; and it was also covenanted that a lease should be made and sealed, according to the effect of tliese articles, before the Feast of All Saints ; this was holden to amount to an immediate lease, by reason of the words "doth ()•) Hall r. Seabriglit, i Sid. 428, Sely, 2 Mod. 79 ; Havergill c Ilarc, 2 Keb. 561 ; Jepson v. Jackson, 2 3 Bulst. 252. Lev. 194; Trevor r. Roberts, Hard. (t) See infra. 366 ; li. V. Winter, 2 Salk. 388 ; (u) Bac. Abr. tit. Lease, (K). See Watkins v. Over.seers of Milton, AVilkinson v. Hall, 3 IJing. N. C. L. R. 3 Q. B. 350, 37 L. J. M. C. 532 ; Neale v. Mackenzie, 1 "M. & 73 ; Grant v. Oxford Local ]5oard, W. 759. L. R. 4 Q. B. 9 ; Carr v. Benson, (v) Bac. Abr. tit. Lease, (K) ; i L. R. 3 Cli. App. 524. For the dis- Leon. 129. tinction between leases and licenses, (?/,•) Bac. Abr. tit. Lease,(K); Drake see post, p. 50. r. Monday, Cro. Car. 207 ; Tisdale (s) Drake v. Monday, W. Jones, r. Essex, Hob. 34 ; Doe d. Jacksou 231, Cro. Car. 207 ; Right d. Green r. Ashburner, 5 T. R. 163. V. Proctor, 4 Burr. 2208; Right d. {x) Alderman v. Neat, 4 M. & Bassett v. Thomas, 3 Burr. 144 1 ; W. 704. Whitlock V. Horton, Cro. Jac. 91 ; (»/) Staniforth v. Fox, 7 Bing. Jones d. Trimleston v. Inman, Irish 590. T. R. 433; Doe d. Pritchard v. (:) Wright v. Trevezant, M. & Dodd, 5 B. & Ad. 689 ; Richards v. M. 231, 3 C. & P. 441. 44 CREATION OF TENANCY. ciiAi'. TV. let," ill the present ten.se, and that the covenant for a future lease was only for further assurance ; and the rather, in this case, as tbe time at vk'hich tlie future lease was to be executed was after the commencement of the term (a). So where A and B entered into an agreement with (3, whereby they agreed " with all convenient speed to grant to him a lease of, and they did thereby set and let to him," certain premises, for a certain term, at a certain rent, the lease to contain certain covenants, in stipulating for one of which tlie words "this demi.se" occurred, the Court held this to be a good lease in prcesenti, with an agreement to exe- cute a more formal and perfect lease in futuro ; the operative words of demise, "set and let," being in the present tense, made it a demise ; and the word " demise," in the stipulation as to the covenants, showed that the parties intended it to be so (6). So where, by an instrument in writing, A agreed to let, and B agreed to take, a certain piece of land, for a certain term, at a certain rent ; and in consideration of a lease to be granted for the said term, B agreed to lay out £2000, within four years, in building certain houses upon it, and A agreed to grant a lease, or leases, as soon as the houses should be covered in, and B agreed to take such leases, and to execute counterparts, the agreement to be considered binding till one fully prepared could be produced ; the Court held this to be a lease (c). Lord Ellenborough, C.J., in giving judgment, said — " The rule to be collected from all the cases is, that the intention of the parties, as declared by the words of the instrument, must govern the construction ; and here their intention appears to have been, that the tenant, who was to expend so much capital upon the premises within the first four years of the term, should have a 'present legal interest in the term, which was to be binding upon both parties ; though when a certain progress should be made in the buildings, a more formal lease, or leases, in which, perhaps, the premises might be more particularly described, for the convenience of underletting or a.ssigning, might be executed." So where A agreed to grant, seal, and execute to B " a legal and effectual (a) Harrington v. Wise, Cro. lease in writinr; and I icill seal it." Eliz. 486, Noy. 57. See Barry v. This was held to be a valid lease. Nugent, cited in Doe ■?;. Ashburuer, Moor. pi. 31; 3 Edw. VI. S. C. 5 T. E. 165; Doe ('. Groves, 15 cited as Maiden's case, Cro. Eliz. 33. East. 244 ; Goodtitle v. Way, i T. (6) Baxter v. Brown, 2 W, Bl. R. 735. The earliest case upon this 973. point arose before the Statute of (c) Poole v. Bentley, 12 East. Frauds, upon these words, "I will 168. See also Warnian v. Faith- you shall have a lease for twenty- ful, 5 B. & Ad. 1042 ; Alderman one years of my lands in D, paying v. Neat, 4 M. & W. 704 ; Chap- ten shillings yearly rent : 7/ialce a man v. Bluck, 4 Bing. N. C. 187. WORDS OF DEMISE. 45 lease" of certain premises, for a certain term, from a day then chap. iv. past, at a certain rent, and to contain certain covenants, and, in tlie meantime, until such lease should be executed, B was to pay rent and to hold the premises subject to the covenants above- mentioned ; this was holden to be an actual demise, and not merely an agreement. No doubt the parties intended that a more formal contract should be executed; but as the tenant was to hold, in the meantime, on certain terms tliere set out, this was deemed to be an intermediate demise of the premises on those terms (d). By a " memorandum of agreeinoit," between A and B, after reciting that A and C had abandoned the annexed contract for taking and letting certain land (and which contract was in effect a lease), it was agreed that A should let and B should take the same lands upon the con- ditions contained in the annexed contract, " the said rent to be paid by quarterly payments, and to be in amount £220 ; and Ave further bind ourselves, each to the other, to execute a similar agreement to the one recited and referred to." This agreement was stamped as a lease, but the one annexed to it had no stamp. The Court held that the stamped agreement incorporated the unstamped one, and that the two together might be given in evidence as a lease {e). So where the in- strument Avas as follows : — "September 21, 1829. — K. agrees to let and P. to take a house in its unfinished state, for the term of sixty years, at the rent of .£525, payable quarterly, tlie first payment for the half-quarter at Christmas next, — P. to insure the premises, and to have the benefit of an insur- ance lately paid, — a lease and counterpart to be prepared at the expense of P., and to contain all the clauses, covenants, and agreements which K. entered into in the lease granted to him ; " this was held to be an actual lease, and not a mere agreement for a lease (/), for several reasons : — First, the stipulation for a future lease was not executory merely, be- cause the terms of it were ascertained, for it was to contain all the clauses in the lease granted to K. Secondly, although no precise day was fixed for the commencement of the rent, yet the tenant was to do the repairs, and, at Christmas fol- lowing, to pay half a quarter's rent. Thirdly, the express words were, " agrees to let, and agrees to take ; " and upoa these the party was put into immediate possession. Fourthly, the tenant was to put the premises into repair ; and, lastly, he was to insure (7). (d) Pinero v. .Tudson, 6 Einfr. (r) Pearce v. Cheslyn, 4 A. &. E. 206; "Wilson V. Chisholm, 4 C. & 225. P. 474. Rollasonf. Leon, 7H. &N. (/) Doe r. Riea, 8 Bing. 178, S. 73; 31 L.J. Ex. 96; Anderson v. P.; Hancock r. Caffyn, 8 Bin?. 358. Midland Eailway Company, 30 L. (7) See the judgment of Tindal, J. Q. B. 94 ; 3 E. & E. 614. C.J., p. i8i. 46 CREATION OF TENANCY. CHAP. IV. But it is also laid down in Bacon's Abridgment (/<), that " if tlie most proper and authentic words or form of words, whereby to describe and pass a present lease for years, are made use of, yet if upon the whole deed there appears no such intent, but that they are only preparatory, and relate to a future lease to be made, the law will rather do violence to the words than break through the intent of the par- ties." Therefore, if the instrument contain an express sti- pulation that it shall not be deemed or taken to be a lease or actual demise, it is clear tliat it must be deemed an agreement merely, and not a lease (i). Thus, where a j>arty agreed that, in case he should become entitled to certain copyhold premises on the death of another, he would immediately demise them to J. S., this was held to be an agreement only, and not a lease (./). So where an instrument contained a stipulation, that out of the rent mentioned a proportionate abatement should be made in respect of certain excepted premises, it was held that the parties intended to execute an agreement only ; for until the rent should be apportioned, the lessor could not distrain for it (k). Thus in Doe d. Jackson v. Ashburner (/), where the words were, " Articles of agreement between S. and J., entered into in regard to his fulling-mills, &c. . . . that the said mills, &c., ... he shall enjoij, and I engage to give him a lease in, for the term of thirty-one years, from Whit- suntide 1784, at the clear yearly rent of £110 ;" the instru- ment was held to be only an agreement for a lease. Lord Kenyon in his judgment said, " Here the words are, ' he shall enjoy and I engage to give him a lease,' &c. And the single question is, what was the intention of the parties using those expressions ? Was it that this agreement should confer the legal interest ? or was it not in their contemplation that there should be another instrument to give that legal interest? The latter words clearly show that it was the intention of the parties that there should be some further assurance. It was in fieri at that time. . . . All the cases cited may be answered by the observation that there were either express words of present demise, or equivocal words, accompanied with others, to show the intention of the parties that there should not be a future lease ; but in this case, where the context, in which I find the words ' shall enjoy,' imports that the parties do not mean that they should operate as a present demise, I think we should decide contrary to the intention of (h) Tit. Leases, (K). 0') Doe v. Clare, 7 T. R. 739. (i) Perring v. lirook, 7 C. & P. (A) Morgan v. Bissell, 3 Taunt. 65. 360, I Moo k K. 510. (0 5 T. K. 163. WORDS OF DEMISE. 47 the parties if we were t(» determine that they should have ciiaiv iv. that etTect." So where tliere were words of present demise, but the amount of rent, the periods of payment, and other terms of the holding were not mentioned, except as they were to be contained in a lease, which was to be prepared ; this was held to be an agreement only, and not a lease (7«). So an agreement "to let," with a purchasing clause, the tenant to enter any time on or before February ii, 1820, was held to be an agreement, and not a lease («). Bayley, J., in giving judgment, said (o) — "In the case of Morgan v. Bissell (;>), the rule is laid down thus, that although there are words of present demise, yet if we can collect on the face of the instrument the intent of the parties to give a future lease, it shall be considered an agreement only." So where by the instrument the rent was to be fixed by valuation, and tlie tenant was to find sureties for the payment of it, the Court held that it was not a lease, but an agreement only (q). So where a person proposed by letter to take a lease of a mine at a certain royalty and rent, the term to be about forty years from the 2-lth June then next, to which the other party by letter answered that he agreed to the terms, and should be happy to grant a lease conformable thereto ; these letters were held to constitute an agreement only, and not a lease, because the matter was altogether in futaro, and much remaiiied to be done (?•). So where A by an instrument in writing agreed to grant at the time thereinafter mentioned a lease of certain premises to B for fifty-nine years from the 28th !March then last past, at a certain rent, payable quarterly, and B agreed to accept and take the lease and execute a counterpart, and in a subsequent part of the instrument it was stipulated that the lease thereby agreed to he granted should he granted immediately after A should obtain a lease of the 'premises from G, to which he was entitled under a certain agreement ; the Court held that this could not be deemed a lease, as the parties knew that there was no power to grant one (s). So where the instrument stated that the party was " contented to demise," &c., it was held that the word " contented " im- ported merely approbation of something to be done thereafter, and that the instrument therefore was not to be deemed a lease, but an agreement only {(). In Brashier v. Jackson (m) Chapman v. Towner, 6 M & (q) John r. Jenkins, i C. &M. 227, W. 100; Clayton 1-. Burtenshaw, 5 (r) Jones 1 ?'. lleynolds, i Q. 15. B. & C. 41. 506, I Gale & D. 62. (n)Dunkz'. Hunter, 5B. &A. 322. (s) Hay ward v. Haswell, 6 A<1. & \o) Ibid. 326. E. 265. (p) 3 Tauut. p. 71, per Mansfield, it) rieazance v. Higham, 2 Mod. C.J. 81. 48 CREATION OF TENANCY. CHAP. IV. (^it), where a party agreed to grant a lease of premises for a certain term, at a certain rent, to be entered upon immedi- ately, such lease to contain certain covenants, and all other usual and reasonable covenants ; this was held to be an agreement, and not a lease ; for what were reasonable cove- nants might be matter of dispute between the parties (v). So where by a written instrument A agreed to grant to B a lease of certain premises for seven years, at a certain rent, the lease to contain certain covenants, but at the end of tlie instrument there was a memorandum that B should have the option of having the lease for fourteen years ; this was held to be an agreement, and not a lease (iv). So where A agreed to grant B a lease of certain premises, for a certain term from the 25th of December then next, at a certain rent, the cove- nants to be the same as in a former lease of the same premises, and it was stipulated that until such lease should be granted, it should be lawful for A to distrain for the rent ; this was held to be an agreement only, for if the parties intended that it should operate as a lease, the latter stipulation as to the power of distress would have been uiuiecessary (x). So where A agreed that he would grant B a lease of certain premises for fourteen years from the 25th December then last past, at £40 a year ; but if B should pay him £40 before the end of the first quarter, then the rent should be reduced to £35 ; this \Yas held not to be a lease (y). The result, therefore, to be collected from the preceding decisions is, that an instrument containing words of present demise shall operate as a lease for years ; a demise is thereby created, and a mere additional stipulation for the future exe- cution of a formal lease is considered only in the nature of an agreement for further assurance. The intention of the parties is to be collected from the words of the instrument in the first place ; but if the terms of the instrument be ambiguous, the nature of the estate and the acts of the parties may be resorted to as a guide. The interpretation of instruments of this nature has, how- ever, been aflfected by the 8 & 9 Vict. c. 106, s. 3, which (m) 6 M. & W. 549- (r) Bicknell v. Hood, 5 M. & W. (v) See Morgan v. liissell, 3 Taunt. 104. 65 ; Goodtitle v. Way, 1 T. R. 735. («/) Hegan v. Johnson, 2 Taunt. See also Alderman v. Neat, 4 M. & 148. An agreement for a composi- W. 704 ; Baxter v. Brown, 2 \V. Bl. tion in lieu of tithes cannot be 973. (It-emed a lease, for nothing is there- (w) Ravvson v. Eike, 7 A. & E. by demised. Brewer f. Hill, 2 Anst. 451- 413- WORDS OF DEMISE. 49 enacts that a lease required It; law (i), to be iii writing, of chap. rv. any tenements and lieieditanients made after ist October 1845, is " void at law" unless it be by deed. But although it is void as a leaf:e, yet it may operate as an agreement for a lease. In construing written instruments, purporting to demise corporeal hereditaments for a term required by law to be in writing under seal, the Courts have usually considered that such instruments (although in terms leases, and therefore void at law) may operate as agreements (a) for leases (6). At any rate, if a person is let into possession under an instrument void as a lease, and pays rent, that instrument may be used as evidence of the terms of the holding and the amount of the rent (r). So in Rollason v. Leon (J), Bramwell, B., said, *' I con- fess I have always thought that the case of Stratton v. Pettit {e) was not rightly decided, and I should like to see it reviewed in a Court of Error. I think that case was wrong, on the ground that the judgment was based on reasoning inapplicable to the case of instruments made since the statute 8 & 9 Vict. c. 106. Before that statute parties might equally as well be supposed to contemplate a 2't'esent actual demise as a prospective demise ; but since the statute, when they cannot let for a period exceeding three years, ex- cept by deed, they may very reasonably be supposed, when they do not agree by deed, in using the words, ' agi-ee to let,' to mean what they actually say, and not an absolute lease." (z) See supra, p. 35. the tenancy were ; and Parke, B., (a) It must be an agreement in stated that he did not dissent from conformity with the 4th section of that proposition, the Statute of Frauds. See ante, (d) 31 L.J. Ex. 96 ; 7 H. & N. 73. pp. 36-39. (c) 24 L. J. C. P. 182 ; 16 C. li. (6) Bond V. Rosling, 30 L. J. Q. 420. In that case (overruled by P.. 227, I B. & S. 371 ; Rollason v. Tidcy r. Mollett, s!/p?'rt), by articles Leon, 31 L. J. Ex. 96, 7 H. & N. of agreement in writing, dated the 73 ; Tidey v. Mollett, 33 L. J. C. P. 3d April 1854, jilaintiff agreed to let, 235, 16 C. B. N.S. 298, overruling and defendant agreed to take, cer- Stratton r. Pettit, 24 L. J. C. P. tain premises for the term of five 182, 16 C. B. 420. years, and tlie defendant to pur- (c) Tress v. Savage, 4 E. & Bl. chase the same at the end of five 36 ; Arden v. Sullivan, 14 Q. B. years, yielding to tlie plaintiff, as 832. Thus in Lee r. Smith, 9 Ex. well for the rent for the five years, 663, it was held that the agree- as for the purchase, iJjo. The ment not being under seal, was void Court held that the intention of as a lease ; but Martin, B., stated the parties, as declared by the it to be his impression that it words of the instrument, was to might be referred to for the pur- create a lease, but as it was not by pose of seeing what the terms of deed, it was void. D 50 CKEATIOX OF TENANCY. CHAP. IV, So in Tidey v. IMoUett (/), Erie, C.J., said, "I think the writing upon which this case turns is an agreement, Tlie judges of this country were at one time not disposed to look upon writings such as this as agreements, but wishing to escape from the Statute of Frauds, they held them to be leases. Now, however, since the statute of 8 & 9 Vict. c. 106, making leases not under seal void, it has been the practice, for a very simihir reason to that which existed before, to hold them to be agreements." Again, such instruments being void as leases, may, it seems, be considered as agreements, so that the Chancery Division would enforce specific performance. Thus, in Taswell v. Parker (g), where an instrument void at law as a lease was sought to be enforced in equity, the Lord Chancellor (Lord Chelmsford), on appeal, in affirming the decree for specific performance made by Vice-Chancellor Stuart, says, " The Legislature appears to have been very guarded in language, for it uses the expression shall he void at laiu — that is, as a lease. If the Legislature had intended to deprive the document of all efficacy, it would have said that the instrument shall be void to all intents and piirposes. There are no such words in the Act. I think it would be too strong to say, that because it is void as a lease, it cannot be used as an agreement enforceable in equity, the intention of the parties having been that there should be a lease, and the aid of equity being only invoked to carry that intention into effect " (/t). Distinction Where tlie intention of the parties, as expressed in the audTiceuses*^' instrument, is that the one shall divest himself of the exclu- sive possession of the subject-matter, and the other come into it for a determinate period, that is a lease (i). But if the intention of the parties is tliat the instrument should operate as a mere license, and that exclusive possession should not be given, then it is not a lease, although it may contain the usual words of demise (j). A license, determined by a month's notice, to fasten boats to moorings, on payment towards the expenses of maintain- (/) 33 L. J. C. P. 23s ; 16 C. B. (0 Reg. v. l^Iorrish, 32 L. J. M. C. N.S. 298; .see also Anderson v. 245. The Midland Railway Co. 30 L. J. {j) Taylor v. Caldwell, 3 B. & S. Q. B. 94. 826 ; 32 L. J. Q. B. 164 ; Hancock {(7) 2 De G. & Jon. 559. v. Austin, 14 C. B. N.S._634; 32 (h) See Davis v. Jones, 17 C. B. L. J. C. P. 252. 625. AVOIIDS OF DKMl.SE. 5 I ing the moorings of the annual sum of £30, does not amount chap, iv, to a demise (k). A liberty to take ore in a particular tract of country, and pay ,£25 a year rent for it, does not amount ti) a lease (/) ; and so also of a license to shoot (m), or to exercise a right of vay (h). But wliere the words used in the agreement show an intention to give exclusive possession, there a tenancy will be created (0), The distinction between a lease and a mere agreement or license was formerly of considerable importance, in conse- quence of the different stamp which the instrument required according as it fell within the one class or the other. By the 23 Vict. c. 15, however, the stamp upon an agreement for a lease, for any term not exceeding seven years, was the same as for a lease ; and now, by the ;^^ it 34 Vict. c. 97, s. 96, the term is extended to thirty-five years. In future, there- fore, leases, and not mere agreements, will be made. As to stamps, see infra, s. 12. 4. Parcels Deimised. The tenements or parcels intended to be demised are next The pirceis specified. They should be described with a reasonable degree '^^™'S'^'J- of accuracy. Farming leases, after setting out the names or denominations and boundaries of the subject of t!ie demise, usually refer to the occupation of the preceding tenant, and state the name by which the farm is known. The extent of land which general words inserted in a lease embrace depends on the object and intention of the parties, to be collected from the instrument ( p). The rule is, that whatever constitutes the essence of tlie thing granted, or is parcel of it, will jiass with it, althougli it be accidentally severed at the time of the lease. Therefore, {k) Watkins I'. Overseers of Mil- Hooper ?•. Clark, 8 B. & S. 150; ton, L. R. 3 Q. B. 350; 37 L. J. M. L. R. 2 Q. B. 200. C 73 ; Grant V. Oxford Local Board, {n) Wood v. Leadbitter, 13 M. k L. R. 4Q. B. 9. See Hill v. Tup- W. 838; Hyde v. Graham, i H. & per, 2 H. & C. 121 ; 32 L. J. Ex. C. 593. 217; Stockport Waterworks Co. v. {<>) Roads v. Churchwardens of Potter, 3 H. & C. 300. Trumi)iiigton, L. R. 6 Q. B. 56; 40 (0 Ward V. Day, 4 B. & S. 337 ; L. J. M. C. 35. 5 Id. 359 ; 33 L. J. Q. B. 3 ; ib. 254 ; (p) See Doe d. Meyrick v. Meyer, Cam'. Benson, L. R. 3 Ch. Aj). 524. 2 Cr. k J. 223 ; Maitland r. Mac- (m) Bird v. Great Eastern Rail- kiunon, 32 L. J. Ex. 49, i H. k C •way Co., 19 C. B. N.S. 268. See 607; Hall f. Lund, 32 L. J. Ex. 113. 52 CKEATIOX OF TENANCY. CifAP. IV. by the lease of a mill, the millstone passes, though severed at the time ; and by the lease of a house the door-keys, &,c., pass, although by accident they may not be in their places when the lease is made (q). Tlie word " land " will, unless a contrary intention is shown, be sufficient to pass, not only the soil, but all tliat grows or is built upon its surface, togetlier with all that lies below it ; but in genei'al the particular sul)jects of demise are specified (r). A '' farm " includes the farmhouse and build- ings, and the lands usually occupied therewith. A gravge includes not only barns, but stables and outhouses used for the purpo.se of husbandry (.s). In some cases a grant of the produce of the soil will pass the soil itself ; thus pasture will be taken not only as the feeding on the land, but as the land itself ; and so the grant of a ivood will pass the soil as well as the timber {t). And it would appear that a lease of the " issues and profits " of land wo\dd pass the land itself; for to have the issues and profits is the same thing as to have the land itself (?/). If a grant be made of a " boilery of salt," the land pa.sses, for that is the whole profit (r). By the grant of a forest, park, chase, or warren, the soil will not pass unless the context indicates that these w^ords are intended to pass it (iv). The grant of a sheep-walk or a fold-course may include the soil by custom of the country {x). The lease of a fishery of a pond, with the spear-sedge, and the flags and the rushes growing in and about the same, has been held to pass the soil {y). If garden ground be let for years, and the lessee demise part of the term to an under-tenant, who builds upon it, by a grant of the garden ground the buildings thereon will pass {z). Where an annual sum was payable as tenant's damages, besides a way-leave rent for a coal railway pa.ssing through a farm, it was left to the jury to say whether the land covered by the railway passed by the agreement of (q) See Shep. Touch. 89, 90, 246. meriting upon Co. Litt. 5 b (h). A (r) Co. Litt. 4 ;i ; Eurtou v. grant may be made of a limited lirown, Cro. Jac. 648. li^bt of warieii, as, for instance, (s) See the various tenements a "warren of conies." Beauchanip accurately described, Co. Litt. 4, 5. v. Winn, supra. (t) Co. Litt. 4 b. Lee Leigh v. (x) Huddlestone v. Woodroffe, 2 Heald, i B. & Ad. 622. Roll. R. 61. (w) Parkers. Plumber, Cro. Eliz. (?/) Rex v. Old Alresford, i T. R. 190. 358. (v) Co. Litt. 4 b. (2) Burton v. Biown, Cro. Jac. {w) Beauchanip v. Winn, 38 L. J. 648. Ch. 556 ; L. R. 4 Ch. 562, com- PARCELS, 5 3 letting to the tenant ; because, if it did, tlie tenant, and nut omai' iv the l;uulh)rd, was eutilled to the sum payable as tenant's damages (a). A " messuage " is synonymous with dwelling- house, though more comprehensive (/>), and will include adjacent buildings, orchard, and curtilage {<■). The word " house," it seems, would comprise all that would i)as3 by a grant of a messuage (d). The word " tenement " extends to everything that may be holden, and includes not merely land, but every inheritable right issuing out of, annexed to, or exercisable in land, such as advowsons, tithes, rents, &c. (e) ; but in leases it is commonly used in a restricted sense, as a]iplicable only to houses and buildings. The word " here- ditaments" extends not only to lands and tenements, but to some of the subjects of inheritable personal property, such as heirlooms (/). The word "i)reniises" is very often intro- duced into leases, both as a term of reference and as a term of description ; when used as a term of reference, it includes not only the parcels demised, but also the term granted (g). It is a general rule in the construction of deeds that where lands are described (h) with sufficient certainty, as by giving a particular name to a close, the addition of an allegation mistaken or false respecting it, as, for instance, in the name of the late occupier (t), or in the number of acres (j), or in the abuttals (k), or parish (/), or describing the premises as freehold instead of leasehold (?»), or other mere misdescrip- (a) Wilson r. Anderson, i C. & K. {ff) Onsley r. Fisk, i Anders. 236 ; 544. Jerman v. Orchard, Skin. 528. (b) Doe d. Clements v. CoUius, 2 {k) Doe d. Beech v. Lord Jersey, T. R. 502, po- Aslnirst, J. i B. & Aid. 550, 3 B. & C. 870. (c) Fenn v. Grafton, 2 Bing. N. (1) Field v. JBeauniont, i B. & C. 617 ; Shep. Touch. 94. Aid. 247 ; AVelby v. Welby, 2 Ves. (d) See the cases cited in "Hodges & B. 191 ; Pullin i\ PuUin, 3 Bing. on Railways," 200-204, as to the 47 ; Swift r. Eyres, Cro. Car. 546, interpretation put by the Courts on W. Jones, 435, Roll Abr. 52, tlie words " house or manufactory "' Graunts, pi. 26, 27; Tr.'»i)i)'s case, in the 92d sect, of the Lands 3 Leon. 235 ; AVindham r. AVind- ( "lauses Consolidation Act, 8 & 9 liani, 3 Dyer, 376 ; Chaniberlaine Vict. c. 18. Consult also Hiirgr. r. Turner, Cro. Car. 129; Blake note 21 to Co. Litt. 5b; Cliard i: v. Gold, W. Jones, 379, Cro. Car. Tuck, 3 Leon. 214 ; Garden c. Tuck, 447. Cro. Eliz. 89 S. C. ; Smith v. Mar- {j) Lord AVillnughby r. Foster, tin, 2 Saund. 400, note 2 ; Steele v. i Dyer, 80 b. ; Coiu. Dig. tit. Fait, Midland Railway Co., L. R. 1 Ch. (E) 4. Ap. 275. (A) Roberts v. Karr, 5 Taunt. 501. {e) Co. Litt. 6 a, 20 a ; Gully v. {I) I^mbe v. Reaston, 5 Taunt. Bishop of Exeter, 4 Bing. 295. 207 ; Robinson v. Button, 2 Roll (/) Lord Stafford v. Buckley, 2 Abr. 52, Graunts P. pi. 21. Ves. Sen. 170 ; Taylor v. Martiudale, (m) Doe d. Dunning v. Cranstoun, 12 Sim. 158. 7 M. & W. I, 54 CREATION OF TENANCY. C HAP. T V. tion (n), will not avoid the instrument (o). But where lands are described in general terms, the addition of a particular circumstance or description will operate by way of restriction or modification (jd). Thus where an estate consisted of thir- teen closes, and eight of the closes were specifically granted by name, it was ruled that the previous specific enumeration restrained the operation of the subsequent general words, and excluded the otherwise general effect of the deed, so that only the eight specified closes passed by the grant [q). So where one having customary tenements, comqwunded and uncom- poimded, surrendered to the use of his will " all and singular the lands, tenements, &c., whatsoever in the manor which he held of the lord by copy of court-roll, in whose tenure or occupation soever the same were, being of the yearly rent to the lord in the whole of £4, 10s. S^d., and compounded for^' it was held that the words " and compovmded for " re- strained the operation of the surrenderer to that description of copyholds then belonging to the surrenderer, and that the words " being of the yearly rent, &c., of £4, los. 8|d.," which were not referable to any actual amount of the rents, either compounded or uncompounded, though much nearer to the whole than to the compounded only, could not qualify or impugn that restriction (?-). If a grant be made of a certain farm called Lismote, now in the possession of J. S., the farm will pass to the grantee, although not in the possession of J. S., but of a difterent person, because the error in the name of the occupier will not vitiate the grant ; but if the lands of Lismote extend into several parishes, and a grant is made of the lands of Lismote sitxiate in the parish of A, then only so much of the lands as lie within the specified parish will pass, because the words " in the parish of A" are restrictive (s). Under a lease of all that part of the park called B, situate and being in the county of O, and now in the occupation of S, lying within certain specified abuttals, with all houses, &c., belonging (n) See Manning r. Fitzgeiakl, sham, 4 M. k S 423. But see post, p. 55. Kingcr v. Cann, 3 M. k W. 343. (o) Doe d. Smith r. Galloway, 5 (7-) K. d. Conolly v. Vernon, 5 B. & Ad. 45, Com. Dig. tit. Fait, East. 51. The cases are well dis- (F), 3 Preston Abstr. 206. tinguished in the judgment of the {p) Doe d. Smith v. Galloway, 5 Court, delivered by Lord Ellen- B. & Ad. 45; Doe (/. Parkin v. borough, C.J. ; but see Strut v. Parkin, 5 Tannt. 321 ; Harris r. Finch, 2 Sim. & St. 229. Greathed, 8 East. 91 ; Bro. Abr. (.s) 3 Pres. Abstr. 206, Falsa dr.- Graunts, pi. 92. vujiistratio non nocct ; Shep. Touch. (q) Doe d. Meyrick v. Meyrick, 246. 2 Cr. & J. 225 ; Payler v. Homer- PARCELS. 5 5 thereto, and which now are in the occupation of S, a honse chaiv iv on a part wliich was within the abuttals, but not in tiie oceu- pation of S, was held to pass (/), By a lease of all that townland of B, containing 509 acres arable, meadow, and pasture, bounded by certain boundaries, it was held that 400 acres of bog and land reclaimed from bog within the boun- daries passed («). Where a lease of land was described by admeasurement, " with the houses now erected or to be erected thereon " (it being found as a fact by the jury, that at the time the lease was executed the foundations of the houses liad been laid), it was held to be in efl'ect the same as the lease of a specific house, and the actual measurements not corresponding with those stated in the lease were held to be merely /a/sa demonstratio {v). Where the demise is in its term.=5 definite and certain, no evidence is admissible in contradiction of the instrument {iv). But whether a particular thing be parcel of the demised premises, is matter of evidence to be collected from the nature of the subject, and from its state and condition at the time of making the demise {x). Thus a demise of a piece of ground, late in the occupation of J. S., will not pass a vault built under the ground demised, and which at the time of making the lease was in the tenancy of a third person {y). Nor will the demise of a messuage, with all the rooms thereto belonging, comprise a room which had been separated by a brickwork partition from the rest of the house, and which had not been used with it for many years prior to the making of the lease, although the room was situated witliin the external walls {z). Where there was in a lease a precise description by metes and bounds of a house and premises, but an adjohiing stable occupied with the house for many years previously was not included in the metes and bounds ; it was held that it did not pass under the words "together Avith all stables, A:c., to the said premises hereby demised belonging or appertaining" [a). Where (t) Doe d. Smith v. Gallowaj', (x) Field r. Beaumont, i B. & 5B. &Ad.43. See Morris r. Dimes, Aid. 247; Ski|)worth v. Green, i I Ad. & E. 663 ; and Martyr v. Stra. 6io ; Hall v. Lund, 32 L. J. Lawrence, 2 De G. J. & S. 261. Ex. 117. («) Jack V. M'lutyre, 12 CI. & (.'/) Doe d. Freeland v. Burt, i Fin. 151. T. k. 701 ; Press v. Parker, 2Bing. {v) Manning r. Fitzgerald, 29 L. 456. J. Ex. 24. (z) Kerslake v. White, Appendix (w) Doe d. Brown r. Brown, 11 to Manning's 2 P. Digest, 368, 2d East. 441 ; Doe ) ; but it seems there may be a custom or a prescriptive right in a manor fur a lord {e) Chetham v. 'Willianison. 4 (!) Gearns v. Baker, 10 L. R. Cli. East. 469 ; Moore v. Lord Ply- 355 ; 44 L. J. Ch. 334. mouth, 3 B. & Aid. 66. (m) Sect. 12 provides a penalty. (/) Doe 'i. Douglas «•. Lock, 2 Ad. (71) See further with resi)ect to & El. 743. game, Div. IL ch. 4. (g) Ante, p. 59. (o) Harris v. Riding, 5 M. & "\V. (h) Paterson on Game Laws, 12. 60. (i) Jetfryes v. Evans, 19 C. B. N. {p) Humphries ?•. Brogden, 12 Q. S. 264 ; 34 L. J. C. P. 261. B. 739 ; Richards v. Harper, 35 L. ij) Ante, p. 59. J. Ex. 130; L. R. i E.\. 199. [k) Panuell v. MUl, 3 C. B. 625. 62 CREATION OF TEXANCY. CHAP. IV. to work mines so as to destroy tlio surface (7), and an excep- tion in a lease may be so framed as to allow the lessor to let down the surface (?•). Upon the other hand, where the owner grants a lease of mines, there is no implied reservation of any right to have the surface supported, and so long as the lessees only work the coal in the manner provided by the terms of the lease, they are not liable for subsidence (.v). 5. Habendum. abendum.' The object of the hahenduvi is to fix with certainty the time for which the parcels demised are to be held, and to determine the quantity of the estate granted (t). The Jtahendum, how- ever, is not an essential part of a deed, for the premises are the operative part. But if no estate be mentioned in the j)remises, the grantee will take nothing under that part of the deed, except by implication and presumption of law. If a habendum follow, the intention of the parties as to the estate to be conveyed will be expressed in the Itahendiun, conse- quently no implication or presumption of law oan be made ; and if the intention so expressed be contrary to the rules of law, the intention cannot take effect, and the deed will be void. Thus where freehold lands were conveyed to W., his heirs and assigns, to hold the same imto W., his heirs and assigns, /rojTi and after the death of H.; it was held that an immediate estate of freehold was given by the premises, and that the habendum had not the eflfect of rendering the con- veyance void by limiting a freehold to commence in futuro (u). If land be granted to J. S. generally, without words of limitation, habendum for years, or at will, by the premises, J. S. would take an implied estate for life, but such implication is controlled by the expj-ess estate mentioned in the habendum [v). Where an express estate is granted by the premises, and (q) Wakefield v. Buccleugli, 39 5 B. & C. 709, 717 ; judgment of L. J. Ch. 441 ; L. R. 4 H. L. 377, Abbot, CJ., and cases there cited, questioning Hilton v. Gienville, 5 as to the operation of the Aa6cnrfM?rt. Q. B. 701. See also Rowbotliam v. See also Doe d. Tinimis v. Steele, 4 AV'ilson, 8 H. L. Cas. 348 ; 30 L. J. Q. B. 667, Co. Litt. 299 a, Plowden, Q. B. 49. 153 ; Wyburd v. Tuck, i B. & P. (r) Williams v. Bagnall, 15 W. 464 ; Shaw v. Kay, i Exch. 412; 2 R. 272. I'hitt on Leases, pp. 47-81 ; Doe d. (s) Eadon v. Jeffcock, 42 L. J. Darlington ?■. Ulph, 13 Q. B. 244 ; Ex. 36. Bird v. Baker, i E. & E. 12 ; (() Shep. Touch. 75; Com. Dig. Jervis r. Tomkinson, iH. &N. 195. tit. Fait, (E) 9. (v) Baldwin's case, 2 Bep. 24 a, (u) Goodtitle d. Dodwell r, Gibbs, Co, Litt. 183 a. HABENDUM. 6^ an estate is created by the hahendum contrary to the rules of cww it. law, repugnant to or inconsistent with the estate in the premises, the premises will be effectual, and the Iiabeiuliou ■will be rejected ; and this rule was established on the principle that deeds are to be construed in the manner most favourable to the grantee; the liahenduin was therefore allowed to enlarge, though not to abridge, the estate conferred by the premises («'). Thus if lands be granted to J. S. and his heirs, hahenJnvi to him for his own life, there the grantee takes an estate in fee- simple by the premises, and the habendum is void {x). ]iut the premises of a deed may be qualified or explained by the habendum, where there is no inconsistency ()/). Thus, if land be granted to A and his heirs, habendum to A and the heirs of his body, the premises will be qualified by the habendum (2). The ofHce of the habendum is to set forth what estate the lessee shall have, and for what time he shall hold the thing granted (a), and the rule is that the habendum controls the reddendum, unless it appears that the liabendum is clearly wrong upon the face of the deed (6). The time at which the term (c) is to commence must be commencement stated with certainty. Thus where a lease for years was "'^ ""^ '*•■''"• made on the loth October, habendum from the 20th Novem- ber, without saying in what year, or "next," or "last past," the lease was held to be void (cZ). But the commencement of the term may be fixed by reference to a contingency which must happen, although the time when it arises is uncertain (e). Thus a term may be created to commence on the death of lives in being (/), or on the determination of a subsisting (w) Co. Litt. 299 a. held, in order to give effect to the {x) Goodtitle d. Dodwell r.Gibhs, deed, that the grant of tlie premises 5 B. & C. 739. See Lilley v. Whit- to J. T. might be rejected as sur- ney, 3 Dyer, 272 a ; Jermon v, plusage, ancl tlie hahendum prevail. Orchard, i Salk. 346. (z) Turnam v. Cooper, Cro. Jac, (y) Altham's case, 8 Eep. 154 b ; 476, Co. Litt. 21 a. Doe d. Timniis v. Steel, 4 Q. B. (a) Shep. Touch, p. 52. 227 ; Atkinson v. Baker, 4 T. It. (6) Burchell r. Clark, 46 L. J. C. 231. In Spyve ?'. Topham, 3 Ea.st. V. Aj^p. 115. L. R. ; 2 C. P. D. 114, where lands were granted by (C. A.), 88. deeds of lease and release to J. T., (c) Leases for lives may now his heirs and assigns, to hold the commence in futuro. See post, same unto G. B., his heirs and p. 65. assigns, to the use of such persons ((/) Anon, i Mod. i8o ; Bac. Abr. and for such estate as J. T. should Lease, (L). by anv deed appoint, and in default (c) Shep. Touch. 100, 272. thereof to J. T. and G. B., and (/) Bac. Abr. Lease, (K); Good- the heirs and assigns of J. T., the right v. Richardson, 3 T. R. 463; estate of G. B. being in trust for Clarke v. Sydeuham, Yelv. 85, J. T., hia heirs and assigns, it was Browul. 136. 64 CREATION OF TENANCY. CHAP. IV. term of years (17) ; and if the sub.si.sting term be surrendered or forfeited, the second term will commence immediately (h). Where a lease is granted to commence before the determina- tion of an existing lease of the same premises, it operates as an assignment of part of the reversion, and, upon the deter- mination of the existing lease, it will become a lease for the residue of the term (i) ; if a concurrent lease be granted to the lessee of the existing lease, the latter is surrendered, and the former comes at once into operation (j). A lease in reversion of several parcels of land made to commence as to each parcel on tlie happening of certain con- tigencies takes effect as regards eacli parcel uj)on the hajipen- ing of such contingencies respectively (Jc). Where during a term a lessor granted a lease of part of the premises in rever- sion to an under-lessee in possession of that part, to commence on the day the original term ended, it was held that the reversionary lease took effect in possession at the precise moment when the original term expired (I). Neither is it nece.ssary that the day of the commencement of the term should be expressly stated. Thus if a lease be made for so many years as J. S. shall name, then as soon as J. S. names the term, this ascertains as well the commencement as the duration (?«). In general, where the lease is by deed, and the time at which the term is to commence is not stated, the term com- mences from the delivery. So if no time of computation is mentioned, or the lease is to begin from the date, where there is no date, or from an impossible date ()t), or from the end of a supposed former lease, where there is no such instrument, the commencement of the term will be reckoned from the {g) Lord 'Paget's case, i Leon. c. 34; Standen v. Christinas, 10 199 ; Smith v. Day, 2 M. & W. Q. B. 135. 684; ]natchford v. Cole, 5 C. B. 0) Davison rf. Bromley v. Stanley, N.S. 514; Doe d. Agar v. Brown, 4 liurr. 2210; Lyou v. Reid, 13 M. 2 E. & B. 331; Enys v. Donni- ). The extent and duration of the term in a lease, or in an}"- Duration of the agreement for a lease (c), should be ascertained with cer- '^""' tainty, either by the exi)ress limitation of the parties, or, as in the case of tlie commencement, by reference to some collateral or extrinsic circumstance which may with equal certainty fix its duration (d). As if a lease be made for so many years as A shall live, no certain number of years being named, the lease, as for a term, will be void. So if the parson of Dale make a lease for so many years as he shall be parson there, tliis is void, because it cannot be rendered certain. So if the lease be for years till A be promoted to a benefice (e). But although in these cases the demises, as leases for years, may be void {/), yet they may operate as leases at will, or from year to year, and may be given in evidence as proof of the rent and other terms on which the lands are held. If a man make a lease for twenty years, if A so long live, or if A be parson of Dale for so long, here, as the term is defined, the lease is good, although liable to be determined upon the death of A, in the one case, or liis ceasing to be parson, in the other (y). So if A have a piece of land of the value of £20 per annum, and make a lease of it to B, until he shall levy out of the profits thereof £100, this is void as a lease for years. But if A have a rent-charge of £20 per annum, and let it to B until he shall have levied £100, this is a good lease for five years (h). And if a lease be made to A for so many years as A hath in the manor of Dale, and A have then a lease for ten years in that manor, this circumstance ascertains tlie term intended to be granted, and the lease will be good for ten years (i). So if a lease be made during the minority of J. S., or until J. S. shall come to the age of twenty-one, this is a good lease ; for a reference to the age of J. S. will reduce the term to a certainty. But if a lease be made to A till a child in ventre sa mere shall come to the age of twenty-one years, this is void (j). The duration of the term may be either for a life or lives (b) Doe d. Castleton v. Samuel, {d) Bac. Abr. Leases, (L) 3. 5 Esp. 173; Kelly v. Patterson, 43 (r) Ibid. >Shep. Touch. 275. L. J. C. P. 320, L. R. 9 C. P. 681. (/) 6 Co. 36. (c) 29 Car. II. c. 3, 8. 4; Bayley {g) Rhep. Touch. 274, 275. V. Fitzmaurice (in error), 8 E. &; B. (h) Ibid. 664, 27 L. J. Q. B. 143 ; Clinan v. {i) Ibid. Cooke, I Sell. & Lef. 22 ; Clarke v. (j) Ibid. FuUer, 16 C. B. N.S. 24. 68 CREATION OF TENANCY. CHAP. IV. ill beiiiii, or for years, or for any less period of time, cither absolutely, or deteriuinable upon some contingency, such, for instance, as the expiration of a life or lives in being (k). But sometimes a lease is made without any limitation in respect of time. Where a lease is made by deed, and there are no express ■words limiting the duration of the term, the lessee takes an estate for his own life where the lessor is competent to grant such an interest (l). If the lease is by parol, and no term is specified, the lessee will be tenant at will (m), and he may, by payment of rent, or other circumstances, become tenant from year to year (n), A lease for years, without any number being stated, is a lease for two years certain (o). A lease for one year certain, and so on from year to year, will create a tenancy for two years at the least (p). So a lease for the term of six months, and so on for six months to six months until six calendars months' notice is given, the first payment of rent to be on the ist of July, is a tenancy for a year (q). Where a lease of lands was granted to another for ten years certain, and if at the end of every ten years the lessee should pay a certain quantity of tiles, he should have a perpetual demise of the land from ten years to ten years continually following, this was held a good lease for ten years only, but bad as to the rest for uncertainty (r). A lease for such a term as both parties please, is but a lease at will (s). Tenancy at will. A tenancy at will is a holding (t) by the express or implied consent of the owner, without raising any obligation on the part of either landlord or tenant to continue the tenancy for any certain term (?;). A tenancy at will may be created by (k) Shep. Toucli. 274, 275. A A. & E. 658 ; Doe d. Monck v. lease for ninety-nine ye,T,v.s, if A Geeckie, 5 Q. B. 845. and B so long live, is determinable (q) Reg. v. Chawton, i Q. B. ))y the death of A or B. A lease 247; Simpson v. Margitson, 11 Q. for ninety-nine years, if A or B so B. 23. long live, lasts till the death of the (r) Say v. Smith, Plowd. 271. survivor. Lord Vaux's case, Cro. (s) Bac. Abr. Leases, (L) 3 ; Eliz. 269. See the judgment in Richardson v. Langridge, 7 Taunt. Elliot V. Turner, 2 C. B. 461 ; Mor- 128. As to the effect of provisions timer v. Hartley, 6 Ex. 60. with respect to notices to quit, see (/) Co. Litt. 42 a ; 8 & 9 Vict. c. infra. Part 3, c. 4, Notice to Quit. 106, s. 3. (() Co. Litt. 55 a. See the judg- (m) See infra. Tenancy at Will. ment of Byles, J., in White v, (n) See supra, p. 36, and infra, Bailey, 30 L. J. C. P. 256. Tenancy at Will. («) Doe d. Bennett v. Turner, 7 (o) Bac. Abr. Leases, (L) 3. M. & W. 226 ; Turner v. Doe d. (jj) Doe (Z. Chadboru v. Green, 9 Bennett, 9 M. & W. 643; Com. DURA.TION OF THE TERM. ' 69 express agreement (v). Thus, in Doe d. Bastow v. Cox («•), chap iv A agreed to become tenant to C and D of certain premises at their ivill and pleasure, at certain rent payable quarterly. A remained in possession under this agreement two years and a half, and paid a year's rent ; it was held that A was tenant at will. A tenancy at will is implied where a con- structive tenancy from year to year would be inconsistent Avith the nature of the transaction, or would defeat the ob- ject of the parties. A demise for years, with a proviso that the lessor may enter at his will, is only a lease at will (x). A person put into possession of lands in which he has no freehold estate or tenancy for any certain term, under an executory agreement, or accepted proposal for a future lease at a yearly rent, is only tenant at will prior to the payment of rent (//), or prior to any other act done from which a tenancy from year to year can be inferred (2) ; because the agreement for a future lease, altliough creating the relation of landlord and tenant, even before payment of rent (a), does not confer any legal estate, and the tenancy at will created by putting the party in possession has no relation to the reserved rent ; but after payment of any portion of the stipulated rent or other recognition of holding under such contract, a constructive tenancy from year to year is implied subject to the terms of the agreement. If a person enter into possession of lands with the owner's consent or privity, pending a treaty for purchase or for a lease, a tenancy at will arises (6). If a person enter into or continue in possession of land, with the consent or privity of the owner, or if Dig. tit. Estate, (H) i ; Eichardson Vincent r. Gordon, 24 L. J. Ch. 121, r. Langridge, 4 Taunt. 128. jxr Cranworth, L.C. ; Doe d. Hull (v) Ball r. CuUimore, 5 Tyrwh. ?•. Wood, 14 M. & W. 682. See the 753 ; Kichardsoii v. Langridge, 4 notes to Clayton v. Blakey, 2 Taunt. 128 ; Cudlip r. Bundle, 4 Smith's L. C. 97. Mod. 9 ; R. t'. Fillougley, Cald. 569. (a) Hammerton v. Stead, in- See Marquis of Camden v. Batter- fra. bury, 5 C. B. N.S. 508. (6) Bight d. Lewis r. Beard, 13 ((/•) II Q. B. 122. East. 210; Doe d. Kewbv r. Jack- {x) Skarburg 1'. Pevenet, 21 Hen. son, i B .& C. 448 ; Ball v. Culliniore, YL fol. 37 b. Year Book; Turner 2 Cr. M. & B. 120; Doe (/. Gray r. r. Hodges, Litt. 235, by Yelver- Stanion, i 1\L & W. 695 ; Kirtland ton. r. Ponnsett, 2 Taunt. 145; Hope r. (!/) Hamerton r. Stead, 3 B. & C. Booth, i B. k Ad. 498 ; Doe d. 483, per Littledale, J. ; Rex r. Col- Milburn ?•. Edgar, 2 Bing. N. C. lett, R. & R. 498 ; Doe d. Groves 498 ; "Winterbottom v. Ingham, 7 V. Groves. 10 Q. B. 486; Doe d. Q. B. 611 ; Doe d. Stanway v. Jones V. Jones, 10 B. & C. 718; liock, 4 I\L & Gr. 30; Doe d. Doe d. Nicholls r. M'Kaeg, 10 B. & Tomes v. Chamberlaine, 5 M. & W. C 721 ; Doe d. I'rice v. Price, 9 14 ; Doe d. Bord r. Burton, 16 Q. Bin" 356. B. 807 ; Doe d. Hiatt v. Miller, 5 (z) (Jus. V. Bent, 5 Bing. 185; C. & P. 595; In re Biiuka v. Reb- 70 CREATION OF TENANCY. CHAP. IV. tlie owner recognise a person as Laving lawful occupation, or if the occupier be exempted from the consequences of a trespass by an implied license, he is tenant at will to the owner (f). A mortgagor in possession has often been called tenant at will to the mortgagee, but this relationship is per- fectly anomalous and sui generis ; there is no actual tenancy, for the mortgagor has not even the rights of a tenant at will, since he may be turned out of possession without notice to quit or demand of possession, and is not entitled to emble- ments (t/). But a tenancy at will may, by express agreement, be created between a mortgagee and mortgagor (e). The notion of a mortgagor being in some cases tenant at will seems to be recognised by 3 & 4 Will. IV. c. 27, s. 7, which pro- vides that no mortgagor shall be deemed to be a tenant at will to the mortgagee within the meaning of that clause. Oa the whole, it seems more correct to say that a mortgagor in possession is a tenant on suflerance only (/), or at most a quasi tenant at will, and he may be treated either as a tenant or trespasser at the election of the mortgagee. Therefore, where the mortgagor remains in possession, and the money is not repaid on the day stipulated, the mortgagee may eject the mortgagor without notice to quit or demand of posses- sion ; thereupon the mortgagee will be entitled to recover, together with the land, all the growing crops, fixtures, «kc., in respect whereof the mortgagor will not be entitled to any compensation (^7). beck, 2 Low. M. & P. 452; Saun- judgment of Ashurst, J. ; seeCoote ders V. Musgrave, 6 B. & C. 524; on Mortgages, 319-324. Anderson v. Midland Kailway Co. (e) Doe d. Basto v. Cox, 11 Q. B. 30 L. J. Q. B. 94. But see Doe d. 112 ; Doo d. Dixie v. Davies, 7 Ex. ilogers i\ Pulleu, 2 Bing. N. C. 749 ; 8g ; Pinhorn v. Souster, 8 Ex. 763. Doe d. Parker r. Boulton, 6 M. & See also Metropolitan Assurance Co. S. 148 ; Tew v. Jones, 13 M. & W. v. Brown, 4 H. & N. 428 ; Doe d. 12. Eogers v. Cadwaller, 2 B. & Ad. (c) Doe d. Pi-ice v. Price, 9 Bing. 473 ; Doe d. Whitaker v. Hales, 7 356 ; Doe d. Whitaker v. Hales, 7 Bing. 322 ; Doe d. Wilkinson r. Bing. 322, 323, 326; Doe d. Foley Goodier, 10 Q. B. 957; Doe d. Snell r. Wilson, II East. 57. See posi p. v. Tom, 4 Q. B. 615; West v. 89. Fritchie, 3 Ex. 216 ; Morton v. (rf) Christopher r. Sparke, 2 Jac. Woods, 37 L. J. Q. B. 242; L. R. & W. 234, by Sir Thomas Plumcr ; 4 Q. B. 293. Wilson ex parte, 2 Ves. & B. 252; (/) As to Tenancy on Sufferance, Lord Cholmondeley v. Lord Clin- see post, p. 89. ton, 2 Jac. & W. 182 ; Hitchman r. (g) Woodfall, "Landlord and Walton, 4 M. & W. 413; Doe d. Tenant," p. 189, loth ed. ; Thunder Higginbotham v. Barton, 11 A. & d. Weaver t'. Belcher, 3 East. 499; E. 307 ; Doe d. Roby r. Maisey, 8 Doe d. Roby z\ Maisey, 8 B. & C. B. & C. 767 ; Doe d. Fi.sher r. Giles, 767 ; Doe d. Fisher t\ Giles, 5 Bing. S Bing. 421. See also the judg- 421 ; Walmesley v. Milne, 7 C. B. ment of Buller, J., in Birch v. N.S. 115, 133 ; Keach v. Hall, i Wright, I T. R. 382, 383; Moss v. Dougl. 21 ; Metropolitan Assurance Gallimore, i Smith's L. C. 542, Co. v. Brown, 4 H. & N. 428. DURATION OF THE TERM. 7 1 The peculiarity of this holding (tenancy at will) is that any ^^ nw i v. act committed by either hindlord t)r tenant inconsistent with its nature determines it, since the tenancy exists only during the joint will of both parties (//). Thus in Doe (/. Bennett V. Turner (/), the landlord had entered on the premises and cut some stone without the permission of his tenant at will. This act was held to operate as a determination of tl)e ten- ancy. So, too, the death of either party determines the tenancy (J) ; but on the death of one of several lessors, the demise being joint, the interest survives (/.•). Thus acts of ownership inconsistent with the tenancy, exercised by either landlord or tenant on the land (/), or oif the land, if the other party have notice thereof — as, for instance, alienation of the reversion with notice to the tenant, or assignment or underlease with notice to the landlord (m) — will determine the tenancy. Tiie tenancy at will may also be determined by a demand of possession or express declaration of either of the parties («). Strict tenancies at will having been found inconvenient, Tenancy from leases for one year, and so from year to year, as long as both ^'^'"^ «>«'»'■• parties pleased, were introduced in the reign of Henry VIII., and such a lease was binding for two years certain ; but prior to the reign of George III. such tenancies could only have been constituted by express contract. Lord Mansfield, how- ever, soon after he became Chief-Justice, established the present system of tenancies from year to year, determinable at the end of any year on giving six months' previous notice, (/() Co. Litt. 55 a, 68 ; Com. mined the tenancy. Doe d. Jones Dig. tit. Estate, (H, G). v. Jones, lo B. & C. 718 ; GootUitle (i) 7 M. & W. 226, 643. See also v. Herbert, 4 T. R. 680; "W.allis r. Doe d. Price v. Price, 9 King. 356. Delmar, 29 L. J. Ex. 276 ; Daniels [j) Crockerell v. Owcrell, Holt, v. Davison, 16 Ves. 249 ; Pollen r. 417 ; Doe d. Lewis r. Lord Cawdor, Brewer, 7 C. B. N.S. 371 ; notes to I Cr. M. & K. 398 ; Co. Litt. 62 b. Clayton r. Blakey, 2 Smith's L. C. (k) Henstead's case, 5 Itep. 10. 97, 5th edition ; Melling v. Leake, (/) See the judgment of Lord 16 C. B. 652. See the judgment <>f Denraan in Doe (/. Bennett v. Byles, J., in White r. Bailey, 10 C. Turner, 9 M. & W. 646 ; Doe (/. B. N.S. 227 ; Co. Litt. 55 b, note ]\Ioore V. Lawdor, i Starkie K. 308; 15. Pinhorn v. Souster. 8 Ex. 763 ; Car- (n) Doe d. Price 1: Price, 9 Bing. penter v. Collins, Yelv. 73. 356 ; Locke v. Matthews, 13 C. B. (m) Disdale v. Isles, 2 Lev. 88; >J.S. 753; or by notice to ord Howard de "Walden, 6 T. K. respective colleges on the market- 338. day before the rent became due. {i) Mountjoy's case, 5 Co. 11. 3 b. RENT. 75 tained from the then current year's averages, wliicli were taken chap. iv. in tlie month of January in every year, under and by virtue of tlie Tithe Commutation Act, 6 ik 7 Will. IV. c. 71, s. 56," which was the result of the sales " during the seven years ending on the Thursday next before Christmas-day then next preceding ; " it was held that the rent might be computed according to such septennial average so published in each year (J). The rent must consist in something issuing out of tlie thing demised, though difl'oring from it in nature ; for if it be part of the thing itself, that would not be a reservation, but an exception (k). Thus, it is said — " If one grant land yield- ing for rent, money, corn, horse, spurs, or a rose, or any such like thing, this is a good reservation ; but if the reservation be of the grass, or of the vesture of the land, or of a common, or other profit to be taken out of the land, these reservations are void (/). A royalty payable by the tenant upon the bricks which are made out of the land demised is a rent (m). In the case of a demise of mines, the rent reserved may, it seems, consist of a portion of the ore, which is the substance of the land itself (?i). The rent, as a general rule, must issue out of lands and such things as are capable of livery, and may be dis- trained upon (0). Thus a rent cannot issue out of a demise of an incorporeal hereditament, or of goods ; but a reserva- tion in such a case may be binding on the parties as a con- tract. A rent reserved upon a lease of a future interest in land is good, for although the lessor cannot distrain during the continuance of the particular estate, yet there is a possi- bility of his doing so on its determination. A lease of the vesture or herbage of land reserving rent is good, as the lessor may come on the land and distrain the lessee's beast (p). The Crown, too, may reserve rent on a demise of an incor- poreal hereditament, because by its prerogative a distress may be levied on all the lands of the lessee (q). It is a general rule that where rent is nominally reserved out of two things, one of which is capable of supporting a rent and the other (i) Kendal r. Baker, 11 C. B. 482. Buckley r. Kenyon, 10 East. 139; (A) See ante, Exceptions from R. v. Earl of I'omfret, 5 M. ) Co. Litt. 47, 142 a. 178. [q) Bac. Abr. tit. Rent, (B). (n) Campbell v. Leach, Anst. 740 ; 'j6 CREATION OF TENANCY. CHAP. IV. not, it will be taken to issue wliolly out of the former (?•). Thus in Spencer's case (.<), where a house and land, with a stock or sum of money, was demised, rendering rent, it was held that the rent issued out of the land only. But although the rent issues in these cases only out of the corporeal here- ditament in point of remedy, it is considered to issue out of both in point of render {t). Thus in Gardiner v. William- son («), A, by instrument not under seal, agreed to let to B the rectory of L, and the tithes arising from the lands in the parish of L, and also a messuage used as a homestead for collecting the tithes, at the yearly rent of £200 ; it was held that as the agreement, not being under seal, did not 'operate as a demise of the tithes, the rent could not be distrained for, as there was no distinct rent reserved for the homestead. Slim in pross not Where a lessee simply covenants or promises to pay a '"'-'"'• certain sum yearly, without stating it as a consideration for the demise of the premises, it will not be a rent, but a sum in gross, to the payment of which he will be liable by reason only of his contract {y). Thus in Hoby v. Roebuck (?r), where a lessee agreed to pay his lessor annually, during the residue of the lessee's terra, ten per cent, on the cost of new buildings if the lessor would erect them ; it was held that this sum could not be distrained for as rent. So in Donnellan v. Read (x), where a lessor demised premises for a terra of years at £50 a year, and agreed with his tenant to lay out £50 in making certain iraproveraents upon them, the tenant under- taking to pay him an increased rent of £5 a year during the term; it was held that this sum of £5 was not a rent in a legal sense of tlie w'ord. We have seen (?/) that generally where a termor lets for the whole of his term, such letting operates as an assignment ; but in such case he can recover the reserved rent as rent, and need not sue for it as a sum in gross (3), and the assignee of such rent can recover it (a). Re- 1 follows Rent, being incident to the reversion, will follow that Reversion. ° (r) Newman v. Anderton, 2 N. {v) Smith r.Mapelbacli,iT.R. 441. R. 224; Salmon v. Matthews, 8 M. \w) 7 Taunt. 157. & W. 827 ; Farewell v. Dickenson, (z) 3 B. & Ad. 899. See also 6 B. & C. 251. ^ Lambert v. Norris, 2 M. & W. 333 ; (s) 5 Rep. 16. Marquis of Camdea v. Batterbury, \t) Dean of Windsor r. Cover, 7 G. B. N.S. 804. 2 Wm. Saunds, 303; Gardiner v. (,!/) Anle,"^. 11. Williamson, 2 B. & Ad. 336 ; Bird \z) Newcombe v. Harvey, Garth, V. Higginson, 2 A. & E. 696, 6 A- & 161 ; Baker v. Gostling, i Bing. N. E. 824; Mcggison v. Bowers, 21 L. C. 19; Williams v. Hayward, i E. J. Ex. 284. & E. 1040 ; 28 L. J. Q. B. 374. (u) 2 B. & Ad. 336. (a) Williams v. Hayward, m'pva. COVENANTS. ^^ reversion. Eent therefore should be reserved to tlic lessor, ciiai\jv. and not to a third p:irty (6). Thus where a man seised in fee leases for life or years reserving rent, the whole rent which becomes due after his death goes with the reversion (as an incident thereof) to the heir, and not to the executor; for since, during the continuance of the particular estate, the reversioner loses the profits of the land, the rent ought to be paid to him as a compensation for the loss (f). Where there is any doubt as to the person to whom the reservation should be made, the clearest and safest way is to reserve the rent generally during the term, without saying to whom, and leave it to be distributed by the law in the mode pointed out in Whitlock's case (J) ; for if the reservation of rent be general during the term, the law directs it to be paid according to the intent and nature of the thing demised (e). Thus if a person seised in fee settles his estate on himself for life, with remainders to other persons, reserving a leasing power, which he afterwards exercises, reserving rent to himself, his heirs, and assigns, those in remainder shall have the rent. So also where a person seised in fee settles his estate on A for life with remainders, and gives him a leasing power, which he exercises, reserving rent during the term, the remainder-men shall take, although neither heirs nor assigns of A (/). 7. Covenants. A covenant is an engagement entered into under seal {g\ whereby one person binds himself to do something beneficial to another, or to abstain from an act which, if done, would be prejudicial to another (A). The general principle is clear, that the landlord, having the jms disponendi, may annex what- ever conditions he pleases to his lease, provided they are not illegal or impossible. A covenant therefore to do a thing which, upon the face of it, appears to be prejudicial to the public interest, or otherwise contrary to law, is ii^so facto (6) Co. Litt. 47 B, 143 b; Com. & TV. 813; Dollen r. Batt, 27 L. J. Dig. tit. Rent, (B) 5. C. P. 281. (c) Co. Litt. 47 a; Cotherr. Mer- (/) Greenw.iy v. Hart, 23 L. J. C. rick, Hard. 95; Bac. Abr. E.xecu- P. 115; Isherwood v. Oldknow, tors, (H) 3 ; Gates v. Frith, Hob. 3 JI. & S. 382. 130 ; Sacheverell v. Froggat, 2 (y) The word " covenant," used Saund. ; Southampton v. Brown, in an agreement not under seal 6 B. & C. 718. But a reservation may, in order to effectuate the of rent to a third party is binding intention of the parties, be con- as a contract. Jewel's Case, 5 strued to mean "contract" or Eep. 3. "stipulation." Hayne v. Cum- id) 8 Co. Rep. 70, 141. mings, 16 C. B. N.S. 421. (e) Wliittome v. Lamb, 12 JI. (/;) Bac. Abr. tit. Covenants. yS CREATION OF TENANCY. void (/'). Thus if a lease is made for tlie express purpose of the premises being used to boil oil and tar, contrary to the provisions of an Act of Parliament, the covenant for payment of rent is void (j). If a man covenant to do a thing which to-day is lawful, but to-morrow is by statute made unlawful, the covenant will be thereby extinguished ; or if he cove- nant not to do a thing, and then a statute is made which compels him to do it, the covenant becomes void (k) ; but if he covenant to do that which is afterwards made unlawful in jtart only, it must be performed so far as it continues lawful. If a man covenant not to do a thing which is unlawful, and then a statute makes it lawful, the covenant is not thereby repealed ; but if he covenant to do a thing unlawful by sta- tute, the performance of the covenant is not rendered lawful by a repeal of the statute, for the covenant was void in initio (I). But there is nothing to prevent persons, if they so please, from binding themselves by a contract as to any future state of the law, although in general they are to be considered as contracting with reference to the law as it then exists (?tt). A covenant to do a thing which is impossible, if the impossibility exists at the time the covenant is made, is void ; but if it be then possible, and afterwards become im- possible, the covenantor will still be liable in the express words of his covenant (71). Where a covenant seems to relate to something which is impossible, the Court will incline to the view that a man did not really warrant to be possible that which was impossible, if a reasonable construction suggests itself (0). Where a covenant is dependent upon a convey- ance of an estate which proves to be void, and no estate passes, the covenant is void (/)). Thus a covenant in a lease to repair during the term is void, where the lessor does not execute the lease {q). But independent covenants in a lease ((') Sbep. Touch. 163 ; Lowe v. Mayor of Berwick r. Oswald, 3 E. Peers, 4 Burr. 2225. By 5 & 6 & B. 665, 23 L. J. Q. B. 324. Vict. c. 35, s. 103 (Property-Tax (n) Sliep. Touch. 663 ; Blight v. Act), a covenant for the payment Page, 3 B. & P. 295, n. {a) ; Barker of rent in full without allowing a r. Hodgson, 3 M. & S. 267 ; i Kol. deduction for the i)roperty-tax is Abr. 420, C. 4, 8; Bute, Marquis void. See infra. Part 2, Div. i, of, r. Thompson, 13 M. & W. 487; 0. I, s. 3, Deductions; and see 250S<, Appleby v. Myers, L. R. 2 C. P. Certain Trades, &c., p. 91. 6514 Clifford v. Watts, L. E. 5 C. (j) The Gas Light Co. v. Turner, P. 577 ; 40 L. J. C. P. 36. 5 Bing. N. C. 666. (o) Per AVilles, J., Clifford v. (k) See the judgment in Baily v. Watts, supra. Crespigny, L. K. 4 Q. B. 185. (p) Capenhurstv. Capenhurst, Sir {/) Brewster v. Kitchell, i Salk. T. Raym. 27; Hayne v. Maltby, 198 ; Brason v. Denn, 3 Mod. 39 ; 3 T. R. 438. Jaques v. Withy, i H. Bl. 65. (q) Pitman v. Woodbury, 3 Exch. (»i) See judgment of Maule, J., iu 4; Linwood v. Sird r. powers of a Receiver of the Court of Elwes, L. R. 3 Ex. 225, 37 L. J. Chancery to lay out a sum of money, Ex. 91 ; where a covenant to repair not more than £30, in repairs, see was held not to extend to cleansing Attorney-Gener.al v. Vigor, 1 1 Ves. a piece of water. 563 ; Fletcher v. Dodd, i Ves. Junr. (0) Makin v. Watkinson, L. R. 6 85 ; IMorrisr. Elme, ib. 139; 15 & 16 Ex. 25 ; 40 L. J. Ex. 33 ; pcrBrAin- Vict. c. 80; Kerr on Receivers, p. well and Channell, 13. B., Martin, 149 ; Seton on Decrees, 3d ed. 1014. B., rfj.f.'?. (k) See Part 4, c. i, s. 4, Cove- {p) Dowse v. Cale, 2 Vent. 126 ; nauts Running with the Land. Penry v. Brown, 2 Stark, 408; EXPKESS COVENANTS — liKPAIUS. S3 So where a lessee erected fixtures for the puri)o.se of trade, chap. iv. and afterwards took a new lease, to commence at tlie expira- tiou of his former one, and the new lease contained a covenant to repair, it was held that he was bound to repair the fixtures (q). Under a general covenant to repair, the lessee's liability is not confined to cases of ordinary and gradual decay ; but in a demise of buildings it extends to injuries done to tliem by fire, whether accidental or wilful, or by liglitning, tempest, Hood, or enemies, ra. to something to be done elsewhere {{/) London and Nortli -Western than on tlie land demised, tliey do Railway Co. v. Garnet, L. R. 9 Eq. not run with tlie land ; Thomas v. 26. Hay ward, L. R. 4 Ex. 311. Such (A) Lumley v. Metropolitan Ry. covenants bind assigns in equitj-, Co., 34 L. T. N.S. 774, D. C. A. raJius. 92 CKEATION OF TENANCY. ciiAP^iv. ture, see supra, pp. 87, 8S, and iiijra, s. 9, and Part 3, c. 3, s. 2. TradinR with Sometimes the lessee covenants that he will deal with the rmrs.''or wui",ru ^^ssor aloiic, as in the case Avhere a public-house-keeper agrees a i.urticuiar to buy all his beer of his landlord. Such contracts are not ' favoured by the Courts, and it must be shown that the lessor faithfully performed his part of the contract by supplying good beer (i). Such covenants are binding on an ), but they held, in the case before them, that there being no limit as to time did not make the contract unreasonable. But in the subsequent case of Archer v. March, in which there was no limit as to time, the Court of Queen's Bench stated that the principle of the decision of the Court of Exchequer Chamber (0 Thornton v. Sherratt, 8 Morris v. Coleman, 18 Ves. 438 ; Taunt. 529; Holcombe v. Hewson, Hitchcock v. Coker, 6 A. & E. 438 ; 2 Camp. 391 ; Jones v. Edney, 3 Archer v. Marsh, 6 A. & E. 959 ; Camp. 285. Pilkington v. Scott, 15 M. & W. 0) Wilson V. Hart, L. R. r Ch. 657 ; Procter v. Sargent, 2 M. k E. Ap. 463 ; Catt V. Tourle, L. R. 4 20 ; Kannie v. Irving, 7 M. & E. Ch. Ap. 654, and see aate, p. 91, 969 ; Pemberton v. Vaughan, 10 Q. n. (c). B. 87; Elves v. Crofts, 10 C. B. (k.) Wight V. Dicksons, i Dow. 241 ; Mumford v. Gething, 7 C. B. 14^- N.S. 305, 29 L. J. C. P. 105. (l) The distance is to be measured (n) Hinde v. Gray, i M. & G. as^ the crow flies. See Duigan v. 195. But see the Leather-cloth Walker, i Johns. 446, 28 L. J. Cli. Company v. Lorsont, L. R. 9. Eq. 867 ; Reg. V. Saffron Walden, 9 Q. 345, 39 L. J. Ch. 86. B. 76 ; Jewel v. Stead, 6 E. & B. (o) 7 Bing. 735. 350- (p) See Hitchcock v. Coker, (m) Davis v. Mason, 5 T. R. 118; supra. EXPRESS COVENANTS — QUIET ENJOYMENT. 93 ■was, that the restraint of trade in that case could not really chap iv. be injurious to the public, and that the parties must act on their view of what restraint may be adequate to the protection of the one, and what advanta<;e a fair compensation for the sacrifice made by the other. They also stated that Horner v. Graves was overruled by the decision in Error (q). Distance is measured by the shortest line which can be drawn on a map from one place of business to the other (?■). The Court will not consider whether the consideration is adequate to the restraint, though there must be some considera- tion (s). It seems that an injunction will issue to restrain a man ■who, as foreman or workman for another person, engages in a trade contrary to his covenant (t) ; but where the covenant ■was not to carry on a business " in his own name, or that of any other person," it was held that it was no breach to act as manager for another at a weekly salary (u). Although an implied covenant for quiet enjoyment in a Quietenjoyment lease arises on the words " demise," "let," ikc. (v), the lease in general contains an express covenant by the lessor, which may be either qualified or unqualified. A form of qualified cove- nant is given by the second schedule of the 8 «fe 9 Vict. c. 124, and is as follows: — "And the lessor doth hereby, for liimself, his heirs, executors, administrators, and assigns, covenant with the said lessee, bis executors, administrators, and assigns, that he and they, paying the rent hereby reserved, and performing the coA'enants hereinbefore on his and their part contained, shall and may peaceably possess and enjoy the said demised premises for the term hereby granted, ■without any interruption or disturbance from the said lessor, his executors, administrators, or assigns, or any other person or persons lawfully claiming by, from, or under him, them, or any of them." Under a covenant of this description, any subsequent eject- ment, or other interruption or disturbance, by any person who does not claim " by, from, or under" the lessor, would be no breach (w). So under such a covenant, a distress for previous (q) Archer r. Marsh, 6 A. & E. {() Newling v. Dobell, 19 L. T. 959. It does not appear that the N.S. 408. case of Horuer v. Graves was over- (u) Allan v. Taylor, 39 L. J. Ch. ruled, but it was distinguished from 627. Hitclicock r. Coker. (r) See Implied Covenants, post, (r) MoufiBet v. Cole, 42 L. J. Ex. p. 99. 8; L. R. 8 Ex. 32. (w) Year Book, 26 Hen. VIII. 3 (s) See the above cases, and Pil- b ; Merrill v. I'rame, 4 Tauni. kington v. Scott, supra. 329. 94 CREATION OF TEXAXCY. CHAP. IV. arrears of land-tax, due from tlie lessor, would be no breacli, the words implying a claim by title from the lessor, and not a claim against him (x). A general or xniqiialified covenant extends to tlie acts of all persons having lawful title, and is not confined to the acts , of persons claiming through the lessor. Such covenants generally purport to assure against disturbance by "any person or persons whomsoever ; " but these words will not include persons having no title, for " the law shall never judge that a man covenants against the wrongful acts of strangers, unless the covenant be full and express to that purpose " (>/). A covenant against the acts of a particular person by name will, however, include the acts of that person, whether he has title or not (z). And if there be express words in the covenant showing a clear intent to protect the lessee from unlawful as well as from lawful interruption — as, for instance, that the lessee shall enjoy against all " claiming, or pretending to claim," any rigiit, &c. — the lessor will be bound by the express words (a). So when the lessor is a party named in the covenant, it will extend to all interruptions by him, whether rightful or wrongful (b). In Sniitli v. Compton, it was said that a covenant for title, unqualified in itself, and unconnected by words with a qualifying covenant in the lease, must in a court of law be regarded as an absolute covenant for title (c). Where the lessor covenanted that he had not done, nor permitted, nor suffered to be done, any act, &c., it was held that consenting to an act which he could not prevent was not a breach (d). (a;) Stanley V. Hayes, 3 Q. B. 105. (n) Soutligate i\ Chaplan, in C. {v) Year Book, 22 Hen. VI. 52 b; P. Com. 230S.C.; Chaplan r. South-. 32 Hen. VI. 32 b ; Hayes ?'. Bicker- gate, in K. B. 10 Jlod. 383 ; Lucy v. staff, Vaugh. 118 ; Tisdale i'. Essex, Levington, i Vent. 175 ; Hunt v. Hob. 34 ; Chantflower v. Priestley, Allen, Wynch. 25. Cro. Eliz. 914 ; Broking v. Cham, (b) Lloyd v. Tomkies, i T. K. Cro. Jac. 425 ; Hammond v. Dod, 671 ; Andrews r. Paradise, 8 Mod. Cro. Car. 5 ; Nokes' case, 4 Rep. 80 319 ; Shaw v. Stenton, 2 H. & N. b ; Jerritt v. Weare, 3 Price, 595. 858. See Dudley v. Folliott, 3 T. K. (c) Smith v. Compton, 3 B. & Ad. 584. 189, overruling Milner v. Horton, (z) Foster 7\ INIapes, Cro. Eliz. ; M'Clel. 647 ; and see Browning r. 212 ; Fowle r. Welsh, i B. & C. 29; Wrii^ht, 2 B. & P. 13, wliere tlie Nash V. Palmer, 5 I\I. & S. 374- qualifyingcovenants were connected Shep. Touch. 166 ; Perry v. Ed- with the unqualified covenant, wards, i Stra. 400. See also Rash- {d) Hobson v. Middleton, 6 B. & leigh V. Williams, 2 Vent. 62. C. 295. EXPRESS COVENANTS — RENEWAL. 95 A breach of this covenant may be made either by proceed- chap. iv. ings in law interfering witli the title (e) or by other acts. AVhere the covenant was that the lessee should enjoy the estate discharged of tithes, it was held that the covenant was broken by a suit for the tithes, although the term was at an end (/); but a suit for waste, which only interferes with a particular mode of enjoying the land, is not a breach of the covenant for quiet enjoyment (g). Nor is the obtaining an injunction against an under-tenant for using the premises in a manner disapproved of by the landlord, but not contrary to any covenant by the lessee ; for a covenant for quiet enjoy- ment is regarded as a covenant to secure title and possession, and not to guarantee to the tenant that he may use the Ian A for any purpose not mentioned in the restrictive covenant upon his part (h). An act done in the assertion of title (/), and which disturbs the lessee in the full enjoyment of his property, amounts to a breach ; as, for instance, the erection of a gate so as to interfere with the use of a close (j), or digging a quarry so as to inter- fere with the working of a mine (k). A covenant for the renewal of a lease runs with the land (/). Renewal of But a covenant for a perpetual renewal, entered into by a lessor having a limited interest, does not bind the estate (m). A covenant for renewal which would create a perpetuity in the heirs of the body of a particular person is invalid (n). And in general the Courts will not construe a covenant for renewal to be perpetual (0), unless the intention of the parties is clearly expressed (p). And where there is a proviso in (c) Calthorp v. Heyton, 2 Mod. (!) Earl of Shelburn v. EiJJulph, 54 ; Hunt V. Danvers, T. Raym. 6 Bro. P. C. 363. 370. (m) Brereton v. Tuohey, 8 Ir. Ch. (/) Laming v. Laming, Cro. Eliz. R. 190 ; Postlethwaite v. Lewth- 316. -waite, 2 J. & H. 237, 31 L. J. Ch. {p) Morgan v. Hunt, 2 Ventr, 215. 584. (h) Dennett v. Atherton, 41 L. .J. («) Hope v. Mayor of Gloucester, Q. B. Ex. Ch. 165 ; L. R. 7 Q- B. 7 De G. M. & G. 647, 25 L. J, Ch. 316; Spencer v. Marriot, i B. & C. 145. 457 ; Sugd. Vend. & Pur. 14th ed. U>) Baynham t: Guy's Hospital, 602. 3 Ves. 298 ; Smyth i'. Nangle, 7 (i) Sedden v. Senate, 13 East. 72. CI. & Fin. 405 ; Brown i: Tighe, 2 (j) Andrews v. Paradise, 8 Mod. CI. k Fin. 396. 318. (/)) Hare i: Burgess, 4 Kay & J. (k) Shaw V. Stenton, 2 H. & W. 45, 27 L. J. Ch. 86 ; Brid-es v. 858. As to remedies for a breach, Hitchcock, i Bro. P. C. 522 ; Furni- see Part 3, Div. 2, c. i, s. 2. val v, Crewe, 3 Atk. 83. 96 CREATION OF TENANCY. CHAP. IV. general terin.s that the lease to be granted shall contain the same covenants and agreements as the lease containing the covenant, such a proviso has been held not to extend to the covenant for renewal {) ; but, if not inconsistent with each other, both may stand (q). As to its etfect upon an implied covenant to farm, ., 4 M. k G. 95. and Pollock v. Huddleston, B.li. (;<) See ante, Covenant for Quiet (%v) Arden v. Pullen, 10 JM. & W. Enjoyment, \}. 93. 321 ; Gott r. Gandy, 2 E & \>. 845 ; (q) White V. Nicholson, 4 M. & Ponifret v. Ricroft, i Wnis. Sauml. G. 95. 357. See Erskine v. Adeane as to (/•) iiM. &W. 5. repair of fences, post. Part II. (s) Hart V. Windsor, 12 M. & W. Div. I. c. 3. 68. It is no answer to a claim for (x) Surplice v. Farnswortli, 7 M. rent tliat the jiremises have become & G. 576. unfit for liabitation, and that the (//) Howlett ?•. Strickland, Cowp. landlord, having refused to repair, 56 ; Smith v. Mapleback, i T. R. the tenant has given up possession, 446. IMPLIED COVENANTS. 10 1 There were two adjoining houses, and under part of one ^ _^ ' was an archway, so tliat tlie wall separating the two houses was as to the upper jiart a party wall between the two houses, but as to the lower part was a party wall between the archway and one of the houses. The defendants were free- holders of both houses. They let botli houses, the archway remaining in their own possession ; but the party wall between the archway and one house was in the joint occupation of the defendants and the lessee of that house, and it gave way and injured theother house, which was leased to the plaintiff. There was a covenant for the lessees to repair party walls in both leases, but the plaintiff claimed on the ground that there was an implied covenant in the lease that the defendants would keep their premises in such condition as to enable him to perforin his covenant to repair ; but it was held that there was no such implied covenant, and that he could not recover (-). There is also an implied covenant on the part of the lessee Husbandry, that he will manage and cultivate the lands demised in a good and husbandlike manner, according to the custom of the country (a). If, however, there is an express covenant in the lease, such a covenant will control the implied covenant to farm according to the custom (h). "Where the covenant is not inconsistent with the custom, both may stand (c), and it is question of law for the Court whether the custom is excluded by the terms of the cove- nant {d). It has been held that where there is a covenant to bring land into cultivation within five years, and also to keep it in good farming condition, the former covenant not having been performed, the latter cannot be insisted upon (e). (-) Colbeck V. Tlie Girdlers' Com- 808 ; Clarke v. Iloystone, 13 M. k paiiy, 45 L. J. Q. B. 225 ; L. K. i ^Y. 752. Q. B. D. 234. (c) Hutton v. "Warren, i M. & "W. («) Powley V. Walker, 5 T. R. 466; Holding r. Pigott, 7 Binjj. 465 ; 373 ; Legh v. Hewitt, 4 East. 154 ; Sutton v. Q'cniple, 12 I\I. See Bac. Abr. Conditions, (i) ; Shep. Parker v. Taswell, 2 De G. & J. Touch. 133. The question whether 559, 27 L. J. Ch. 42. any provision in a contract is a con- (p) "Williams v. Burrell, i C. B. dition pncedi nt, depends upon the 402. intention of the parties, as apparent {q) Acraman v. Price, 24 L. J. on tlie contract, and not ujjon any N.S. 487 ; 19 W. R. 364. formal arrangement of the words. (r) Aspdin v. Austin, 5 Q. B. See Boone r. Eyre, i H. M. 273, note 671 ; Dunn v. Sayles, Id. 685 ; (a) ; Tidey v. Mollett, 16 C. B. N.S. Doe d. Marquis of Bute v. Guest, 298 ; Notes to Pordage v. Cole, i 15 M. & "W. 160; Pilkington r. Wms. Saund. 320 a; and to Cutter Scott, Id. 657; Smith v. Mayor of v. Powell, 2 Smith's L. C. 5th edit. Harwich, 2 C. B. N.S. 651 ; Sharp Com. Dig. Condition, (B). V. Waterhouse, 7 E. & B. 816. See, 104 CREATION OF TENANCY. CHAP. IV. are frequently inserted. A condition or proviso (t) is defined to be "some qu.-ility annexed to a real estate, by which it may be defeated, enlarged," or created ii2)ou an uncertain event (»). No precise form of words is necessary for the purpose of creating a condition in a lease, as the construction of the clause will be governed by the apparent intention of tlie parties, to be collected from the instrument itself (v). Even if the word " condition " be used, it will be con.strued to mean contract or stipulation, in order to effectuate the inten- tion of the parties («■). And where words both of covenant and condition are iised, both will operate (x). Where a power of re-entry is ex- pressly given, or may be gathered from the words of the instrument, a condition, and not a covenant, will in general be created (y). A condition may be indorsed on the instrument, or may be contained in another executed the same day (z). Provisos or conditions which do not concern the thing demised, but are merely collateral, do not run with the land, so as to entitle an assignee of the reversion to sue (a). Leases usually contain provisos and conditions not to assign without license, with powers of re-entry for any breach of such conditions (6). {t) A condition is called a proviso, nard, 12 Q. B. 244. But see Liddy merely on account of the word with r. Kennedy, Ij. K. 5 H. L. V. 134, which it usually begins. 149. In Sliaw ?•. Coffin, 14 C. 15. (u) Co. Litt. 201 a. See also Litt. N.8. 372, it was held that the fol- S. S. 328, 329 ; Bac. Abr. Condi- lowing words in an agreement for tions, (A) ; Lord CromweU's case, 2 letting did not create a condition : — Rep. 69 b. As to the distinction " The said tenant hereby agrees tliat between conditions in law, i.e., im- he will not underlet the said prenii- plied conditions, and conditions in ses without the consent in writing deed, see Litt. 325, 380; Co. Litt. of the landlord." And see Crawley 214 b ; Mary Portington's case, 10 v. Price, L. 11. 10 Q. B. 302. Bep. 41 ; Shep. Touch. 117. (s) Com. Dig. Condition, (A) 9; {v) Doe d. Henniker v. Wall, 8 Griffin r. Stanhope, Cro. Jac. 456 ; B. & C. 308. Goodright d. Nicholls v. Mark, 4 (w) Haynei;. Cummings, 16 C. B. M. & S. 30. N.S. 421. • («) Stevens ?•. Copp, L. R. 4, Ex. (x) Shep. Touch. 122; Co. Litt. 20, 38 L. J. Ex. 31. See post, Part 146; Co. Litt. 203, (B) ; Doe d. 4. c. i, s. 4, Covenants Runuing with Henniker v. Wall, 8 B. & C, 2^er the Land. Bailey, J., 315. (6) See supra, Covenants not to {;/) Doe d. Wilson v. Phillii>s, 2 Assign, p. 86. Bing. 13 ; Doe d. Gardner v. Ken- POWERS OF EE-ENTliY. IO5 CIIAI'. IV, 9. PoWKltS OK liH-ENTRY. All leases sliouUl contain a proviso for re-entry, for the powers of rc- purpose of enforcing tlie payment of the rent and tlie per- '^^""'y- I'orniance of the covenants. Such provisos are construed according to the intention of tlie parties, to be collected from the words used (c). Thus where there was tlie following proviso, that if buildings should not be completed by a certain day, it should " be lawful for the lessor into the demised premises, or any jiart thereof in the name of the whole, and repossess, retain, and enjoy the same," it seems to have been held that tlie lessor had a right of re-entry, although the word " re-enter" had been omitted (d). But where the intention of the parties cannt)t be collected from the words used, the Court will not force a meaning into words which are insensible (1?). Where the proviso for re- entry was to take eflect upon breach of any of the covenants " thereinafter " contained, and there Avere none, except a cove- nant by the lessor for quiet enjoyment, provided the lessee performed the covenants " thereinbefore " mentioned, the Court would not reject the word " thereinafter" (/). Although in general the Court will construe a proviso most strictly as against the covenantor, yet a proviso that if, after thirty days' notice, the tenant should make default in per- formance of any covenant, the landlord might re-enter, was held not to apply to alterations of buildings made by the tenant without leave, and contrary to the covenant, but only to acts to be performed by the tenant upon notice given (y). So a proviso for re-entry if the lessee " should do, or cause to be done, any act," &c., does not apply to a mere omission, as non-repair (h). But a proviso for re-entry may be so framed as to apply to a negative as well as to an aflirmative covenant (i). (c) Doe d. Davis r. Elsam, M. & (/) Doe rf. Spencer ?•. Godwin, 4 M. 189 ; Doe d. Muston v. Ghnlwin, M. & 8. 265. 6 Q. E. 953, 961 ; Croft r. Lunilev, ('/) Doe d. Talk r. Marclietti, i 5 E. & Bl. 667, 27 I.. J. Q. ]J. 32i ; 15. .'t Ad. 715. Perry v. Davis, 3 C 13. N.S. 769; (l() Doe (/. Al)dy ■??. Stevens, 3 K. Baylis v. Le Gros, 4 C. B. N.S. 537, & Ad. 299. See West r. Dohh, 539, 552. L. K., 5 Q- B. Ex. Ch. 460; 39 L. (d) Hunt V. Bi.shoi), 8 Exch. 675. J. Q. 15. 190. (e) Doe (/. "Wyndiium v. Carew, 2 (1) Wadliam ?'. The Postmaster- Q. B. 317; but see Doe d. Darke v. General, per I'.lackburn, J., 40 L. Bowditcii, 8 Q. B. 973. J. Q. B. 310, L. 11. 6 Q. B. 644. able leases. 1 06 CREATION OF TEXANCV. CHAP. IV. A proviso that upon breach the lessor may reenter upon the premises, and hold them " as if the said lease had never been made," or other similar words, does not preclude an action upon the covenants accruing before the re-entry (j). Where there is a proviso in a lease that, upon breach of cove- nant, it shall be lawful for the landlord to re-enter, the land- lord may elect whether to avail himself of the proviso or not (k), and the lessee cannot elect to treat the lease as void (/). A lease contained a covenant, amongst others, that the tenant should not carry away any hay, &c., under a penalty. Then followed a clause enumerating all the other covenants except this, and providing that upon breach of " any of the cove- nants " the lessor might re-enter ; and it was held that the words of the proviso were large enough to include the omitted covenant (//i). As to forfeiture, re-entry, and waiver generally, see post, Part 3, c. 3, ss. I and 2. Void and void. Sometimes the clause for re-entry, instead of providing that in case of breach of covenant it shall be lawful for the lessor to re-enter, states that " the lease shall cease, determine, and become void and of no eftect." A proviso that upon non-payment of rent, &c., the lease shall become utterly void, or similar words, only means that it may be made so by some act of the lessor showing an inten- tion to avoid the lease (/i), and the lessee cannot elect to make the lease void (o). Where a fraudulent representation is made with respect to (j) Ilartsliorne r. Watson, 4 Bing. Doe d. Bryan v. Bancks, 4 B. & Ad. N. C. 178, 6 Dowl. 404 ; Load v. 401 ; Roberts v. Davey, 4 B. & Ad. Green, 15 M. & "\V. 216 ; Selby v. 664 ; Doe d. Nash v. Birch, i M. k Browne, 7 Q. B. 620 ; Davies v. "W. 402. Underwood, 2 H. & N. 573 ; Att.- (??i) Doe d. Antrobus v. Jepson, 3 Gen. r. Cox, 3 H. L. Cas. 240. B. & Ad. 402. (^•) Reid r. Parsons, 2 Cliit. 247; (h) Hartsliorne?'. "Watson, 4 Biiig. Doe d. Green r. Baker, 8 Taunt. N. C. 178 ; Davies v. Underwood, 2 241 ; Rede v. Farr, 6 M. & 8. 121; }I. & N. 573; Roberts v. Davey, 4 Doe d. Bryan v. ]5ancks, 4 B. & A. ]'.. & Ad. 664 ; Pennington v. Car- 401 ; Arnsby r. Woodward, 6 B. & dale, 3 H. & N. 656 ; Hughes r. C. 519; Doe d. Nash v. Birch, i M. Palmer, 19 C. B. N.S. 393 ; Arnsby & W. 402 ; Roberts v. Davey, 4 B. v. Woodward, 6 B. & C. 519; Baylis & Ad. 667 ; Jones ?'. Carter, 15 M. & v. Le Gros, 4 C. B. N.S. 537. W. 718 ; Pennington v. Canlale, 3 (o) Rede v. Farr, 6 M. & S. 121 ; H. k N. 356; Baylis v. Le Gros, 4 Doe d. Bryan v. Bancks, 4 B. & Ad. (J. B. N.S, 537; Hayne v. Cum- 401; Roberts r. Davey, 4 B. & Ad. niing.s, 16 C. B. N.S. 421. 664; Doe d. Nash v. Birch, i M. & (0 Rede v. Farr, 6 M. & S. 121 ; W. 402. LEASES UNDER POWERS. 10/ a collateral matter, in order to procure the granting of the chai'. iv. lease, it will not avoid the lease (p) ; but a plea of fraud or illegality may be a good answer to an action for not granting a lease under such circumstances (q). "Where there is an express covenant against using a house for immoral purposes, yet if the lessor permits a breach of the covenant, and derives gain from it, he cannot afterwards recover upon his covenant (r). Arrears of rent accruing before the lease is made void may be sued for ; and so also with respect to breaches of other covenants, even if the lessor is to hold the premises upon re-entry " as if the lease had never been made " (.<). 10. Leases under Powers. The general nature and effect of powers, and what is or is not a valid execution of a particular power, is too wide a subject to be treated of here. There are, however, certain leading cases and principles which should be stated. The subject is fully treated of in other works more particularly devoted to this branch of the law (t). It may, in general, be stated, that the creation of the power and its execution will be construed according to the intention of the parties, collected from the words of the instrument, according to their ordinary and common acceptation («). The Court will, if possible, support an appointment under a power, if it is not exercised, from improper motives (v). It is also a general principle that a man having a power (p) Feret V. Hill, 15 C. B. 207. edit.; Chance on Powers; Powell (q) Calvaleiro r. Puget, 4 F. & F. on Powers. 537 ; Cowan r. Milburn, L. K. 2 Ex. (u) Ren d. Hall v. Bulkeley, i 230, 36 L. J. Ex. 124. Doug. 293 ; Pomeroy r. Partington, (r) Smith v. White, 35 L. J. Ch. 3 T. R. 665 ; Goodtitle d. Clarges v. 454. See .also Gas Light Co. v. Funucan, 2 Doug. 573 ; Hawkins r. Turner, 5 Bing. N. C. 666, where Kemp, 3 East. 441 ; Doe e d. Jackson r. but see Morton r. Woods, L. R. 3 Q. Bamsbottoni, 3 M. k S. 516. B. 658, ib. 4 Q. ]}. 293, 37 L. J. Q. B. (p) Delaney v. Fo.x, 2 C. B. N.S. 242. Where it was the manifest in- 768. tentioii of the ])artics, as expressed ( p) Doe d. Prior v. Ongley, 10 C. by the dt'cd, that tlie relation of B. 25. landlord and tenant should exist. ()•) Duck v. 15raddyll, M'Clel. See also Jolly v. Arbuthnot, 4 De 217; 13 Price 455 ; and see 33 &; 34 G. & J. 224, 28 L. J. Ch. 547. Vict. c. 97, s. 97, pi. 2 post, p. 117. (?)) Cuthbertson v. Irving, supra; («) Boase r. Jackson, 3 B. & B. Dolby r. Isles, 11 Ad. & E. 335; 185; Blount r. Pearman, i Bing. Phipi)s r. Sculthoriie, i B. k Ad. N. C. 408; Parry v. Deere, 5 A. & 50; Levy r. Lewis, 28 L. J. C. P. E. 551. STAMPS. 113 It was held that if a lease contained a contract for the jmr- chase of goods, it could not be given in evidence to prove tlie sale of the goods unless it had a lease stamp, altliougli it might have had an agreement stamp (/). Now, by the ^^ it 34 Vict. c. 97, s. 97, pi. I, wiiere [>art of the consideratioM consists of goods, itc, the value t)f the goods is to be deemed a consideration in respect of which the lease is chargeable with ad valorem duty {u). A lease containing a riglit of purchasing the ]iremises for a certain sum only reijuires a single lease stamp (r). If a stamped lease be altered by a new document, that will require a stamp (tv), unless the alterations are merely an ex- pression of what was before intended {x). Where a document is a mere proposal for a lease which is subsequently agreed to by parol, it does not require a stamp (?/) ; but where it is itself a concluded agreement, although unexecuted, it is otherwise (2). Where the terms are agreed upon by parol, and only recog- nised by a subsequent instrument, it need not be stamped (a). Where an unstamped agreement was incorporated in a subsequent stamped agreement, it was held the two consti- tuted a perfect lease, and might be both given in evidence {b). Though an oral lease for three years may be good, yet if it is reduced into writing it must be stamped (c). It is proposed, in dealing with the present subject, only to refer to those general provisions of the latest Stamp Act wliicli seem most material to the present work, and also to tlio.se special provisions which relate to stamps on leases and other matters bearing on the relations between landlord and tenant. [t) CorJer v. Drnkefortl, 3 Taunt. (c) riiadwick ?•. Clarke, i C'. ]>. 382 ; Clayton v. Burtenshaw, 5 B. 700 ; Tanier r. i'ower, 7 B. k C. & C. 41 ; Stoue V. Kogers, 2 M. & 625. AV. 443. ((() Bethell v. Blencowe, 3 M. & (m) See Ibe sect, post, p. 116. G. 119. See Marshall v. Towell, 9 (v) Worthingtou v. Warriugton, Q. B. 779. 5 C. B. 636. (6) Pearce v. Cheslyn, 4 A. & E. (w) Keed ?.'. Deere, 7 B. & C. 26t. 225. (x) Doe c/. Waters r. Houghton, i (r) Prosser r. Thillips, Bull. N. Man. & K. 208. V. 269. (»/) Drant v. Browne, 3 B. & C. 66 C Vict. c. 97-99. I 1 4 CKEATION OF TENANCY. ciiAi'. IV. " The Stamp Act, 1870," which came into operation on ist The Stamp Act, January 187 1, enacts, by sect. 3, that "from and after the ^^70.33*34 commencement of this Act, and subject to the exemptions contained in the schedule to this Act, and in any other Acts for tlie time being in force, there shall be charged for the use of Her Majesty, her heirs and successors, upon the several instruments specified in the schedule to this Act, the several duties in the said schedule sjiecified, and no other duties." This in effect repeals all progressive duty which is not mentioned in the Act or in the schedule thereto. Sect. 7 provides that instruments written upon stamped paper, or subsequently stamped, are to be so stamped as to make the stamp appear upon the face of the instrument, and so as it cannot be used for any other in.strument. Where there are more than one instrument on one paper, each must be stamped. Sect. 8 provides that, except where it is provided to the contrary, an instrument containing separate matters is to be separately charged, and where it is made for considerations for which it is chargeable with ad valoi-em duty, and also for a further consideration, it is to be charged for such further consideration separately ((/). By sect. 9, instruments are to be stamped with the stamps which are appropriated to them by words on the face of the stamp. By sect. 10, the facts affecting the amount of the stamp, &.C., are to be set forth in the instrument, under certain penalties. By sect. 15 — (i.) " Except where express provi.sion to the contrary is made by this or any other Act, any unstamped or insufficiently stamped instrument may be stamped after the execution thereof, on payment of the unpaid duty, and a penalty of £10 ; and also by way of further penalty, where the unpaid duty exceeds £10 of interest on such duty, at the rate of £5 per centum per annum, from the day upon which the instrument was first executed, up to the time when such interest is equal in amount to the unpaid duty. And the payment of any penalty or penalties is to be denoted on the instrument by a particular stamp. (2.) Provided as follows: {aid duty only. {/>) The Commissioners may, if they think lit, at any time within twelve montlis after the first execution of any instrument, remit the penalty or penalties of any part thereof." By sect. t6 — (i.) " Upon the production of an instrument chargeable with any duty as evidence in any Court of civil judicature, in any part of the United Kingdom, the ofGcer whose duty it is to read the instrument shall call the attention of the judge to any omission or insufficiency of the stamp thereon ; and if the instrument is one which may legally be stamped after the execution thereof, it may, on i)ayment to the officer of the amount of the unpaid duty, and the penalty payable by law on stamping the same as aforesaid, and of a further sum of £i, be received in evidence, saving all just exceptions on other grounds, (2.) The officer receiving the said duty and penalty shall give a recei2)t for the same, and make an entry in a book kept for that purpose of the ))ayinent of the amount thereof, and shall comnnniicate to the Commis- sioners the name or title of the cause or proceeding in which, and of the party from whom, he received the said duty and penalty, and the date and description of the instrument, and shall pay over to the Receiver-General of inland revenue, or to such other person as the Commissioners may appoint, the money received by him for the said duty and penalty. (3.) Upon production to the Commissioners of any instrument in res[)ect of which any duty or penalty has been paid as aforesaid, together with the receipt of tlie said officer, the payment of such duty and penalty shall be denoted on such instrument accordingly."' By sect. 17, "Save and except as aforesaid, no instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done, or to bu done, in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed." Sects. 18-20 relate to proceedings for getting instruments Il6 rUE.VTIOX OF TENANCY. stamped by Commissioners, after which they become admis- sible in evidence, notwithstanding any objection relating to duty. By sect. 23, except where express provision is made to the contrary, all duties are to be denoted by impressed stamps oidy. Sect. 24 relates to the proper mode of cancelling an adhesive stamp by writing the name and date across it, without which it will not be deemed duly stamped, unless it is otherwise proved that the stamp was atlixed at the proper time. The most material of the special regulations of the statute are as follows : — AS TO DUPLICATES AND COUNTERPARTS. By sect. 93, the duplicate or counterpart of an instrument chargeable with duty (except the counterpart of an instrument chargeable as a lease, such counterpart not being executed by or on behalf of atiy lessor or grantor), is not to be deemed dnly stamped, unless it is stamped as an original instrument, or unless it appears by some stamp impressed thereon that the full and proper duty has been paid upon the original instrument, of which it is the duplicate or counterpart. AS TO LEASES, ETC. By sect. 96 — (i.) An agreement for a lease or tack, or with respect to the letting of any lands, tenements, or heritable subjects, for any term not exceeding thirty-five years, is to be charged with the same duty as if it were an actual lease or tack made for the term and consideration mentioned in the agreement. (2.) A lease or tack made subsequently to, and in conformity with, such an agreement, duly stamped, is to be charged Avith the duty of sixpence only. By sect. 97 — (i.) Where the consideration, or any part of the consideration, for which any lease or tack is granted or agreed to be granted, does not consist of money, but consists of any produce or other goods, the value of such produce or goods is to be deemed a consideration in respect of which the lease or tack or agreement is chargeable with ad valorem duty, and where it is stipulated that tlie value of such pro- duce or goods is to amount at least to, or is not to exceed, a STAMPS. 1 I 7 given sum ; or where the lessee is specially charszecl with, or cuai*. iv. has tlie option of paying after, any permanent rate of conver- sion, the value of such produce or goods is, for the purpose of assessing the ad valorem duty, to be estimated at such given sum, or according to such i)ermanent rate. (2.) A lease or tack or agreement, made either entirely or jtartially for any such consideration, if it contains a statement of the value of such consideration, and is stamped in accordance with such statement, is, so far as regards the subject-matter of such statement, to be deemed duly stamped, unless or until it is otherwise shown that such statement is incorrect, and that it is in fact not duly stamped. By sect. 98 — (i.) A lease or tack or agreement for a lease or tack, or with respect to an}"^ letting, is not to be charged with any duty in respect of any jtenal rent, or increased rent in the nature of a penal rent, thereby reserved or agreed to be reserved or made payable, or by reason of being made in consideration of the surrender or abandonment of any existing lease, tack, or agreement of, or relating to, the same subject-matter. (2.) No lease made for any con- sideration or considerations in respect whereof it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of his having j)re- viousiy made, any substantial improvement of or addition to the property demised to him, or of any covenant relating to the matter of the lease, is to be charged with any {e) duty in respect of such further consideration. (3.) No lease for a life or lives not exceeding three, or for a term of years deter- minable with a life or lives not exceeding three, and no lease for a term absolute, not exceeding twenty-one years, granted by an ecclesiastical corporation, aggregate or sole, is to be charged with any higher duty than 35s. (4.) No lease for a definite term exceeding thirty-five years, granted under the " Trinity College (Dublin) Leasing and Perpetuity Act, 185 1," is to be charged with any higher duty than wouhl have been chargeable thereon if it had been a lease for a definite term, not exceeding thirty-five years. (5.) No lease or tack, or agreement for a lease or tack in Scotland, of any dwelling- house or tenement, or part of a dwelling-house or tenement, for any definite term not exceeding a year, at a rent not exceeding the rate of £10 per animm, is to be charged with any higher duty than one penny. (e) This is a re-enactment of the sion In re Bolton's lease, L. \i. 33 & 34 Vict. c. 44, s. I, which was 5 Ex. 82 ; 39 L. J. Ex. 51, and see passed in consequence of the deci- the 39 Vict. c. 16, s. 11, infra. I I 8 CREATION OF TENANCY. CHAT IV, By sect. 99, the duty upon an instrument cliargeable with ^ duty as a lease or tack for any definite term less than a year ot" — (i.) any dwelling-house or tenement, or part of a dwell- ing-house or tenement, at a rent not exceeding the rate of £10 per annum ; (2.) any furnished dwelling-house or apartments ; or upon the duplicate or counter[)art of any such instrument, may be denoted by an adhesive stamp, which is to be can- celled by the person by whom the instrument is first exe- cuted. By sect. 100 — (i.) Every person who executes or prepares, or is employed in preparing, any instrument upon which the duty may, under the i)rovisions of the last preceding section, be denoted by an adhesive stamp, and which is not, at or before the execution thereof, duly stamped, siiall forfeit the sum of £5. (2.) Provided that nothing in this section con- tained shall render any person liable to the said penalty of £5 in respect of any letters or correspondence. By the 39 Vict. c. 16, s. 11, an instrument, whereby the rent reserved by any other instrument chargealjle with stamp- duty as a lease or tack, and duly stamped accordingly, is increased, shall not be chargeable with stamp-duty otherwise tlian as a lease or tack in consideration of the additional rent thereby made payable. s.ii.'duie of By the schedule to the tStamp Act the following (amongst stamp duties. 1.1 \ ^ i ,.^- • 1 ■ o \ ■=> other) stamp-duties are imposed, viz. : — - Agreement for a lease, or tack, or for any letting. See Lease. Agreement, or any memorandum of an agreement, made in England or Ireland under hand only, or made in Scotland with- out any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contr;i.ct, or obligatory upon the parties from its being a written instrument, ....... £0 o 6 J^xemptions. (i.) Agreement or memorandum the matter whereof is not of the value of £5. (2.) Agreement or memorandum for the hire of any labourer, artificer, maimfactuier, or menial servant. (3.) Agreement, letter, or memorandum made for or relating to the sale of any goods, wares, or merchandise. (4.) [Not copied.] And see sect. 36. Covenant. Any separate deed of covenant (not being an instrument cliargeable with ad valorem duty, as a conveyance on sale or mortgage) made on STAMPS. 119 the sale or mortgage of any property, and relating solely to the conveyance or enjoyment of, or tlio title to, the property sold or mortgaged, or to the production of tlie nnmiments of title relating thereto, or to all or any of the matters aforesaid — (A duty equal to tlit^ exceed los., In any other case, Deed of any kind whatsoever not described in this schedule, ........ And see sect. 4. Duplicate or counterpart of any instrument charge- able with any duty — Where such duty does not amount to 5s., . In any other case, And see sect. 93. Lease or tack — (i.) For anj' definite term less than a year — (a) Of any dwelling-liouse or tenement, or part of a dwelling-house or tenement, at a rent not exceeding £10 per annum, (b) Of any furnished dwelling-house or apart- ments where the rent for such term ex- ceeds £25, (c) Of any lands, tenements, or heritable sub- jects, except or otherwise than as aforesaid, (2.) For any other definite term, or for any in- definite term ; Of any lands, tenements, or heritable subjects — Where the consideration, or any part of the consideration, moving either to the lessor, or to any other person, consists of any money, stock, or security — In respect of such consideration, . Where the consideration, or any part of the consideration, is any rent — In respect of such consideration ; If the rent, whether reserved as a yearly rent or otherwise, is at a rate or average rate : — ucti ad I valortiii, Viuty. £0 10 020 Tlie same duty as a lease for :i , year at the rent re- served for the definite \term. 120 CKEATION OF TENANCY. Not exceeding £5 per annum, Exceeding £5, and not exceeding £10, 10, IS, 20, 25, 50, 75, 100, 15, 50, 75, 100, If the term is definite, and does not exceed 35 If the term,' being defi- If the term,l nite.exceeds being defi- ] 35 years, but nite,exceed8| years, or is indefinite. does not ex- ceed 100 yrs. 100 years. £ s. d. £ s. d. £ «. d. 006 030 060 I 060 12 016 090 18 020 12 140 026 15 I 10 050 I 10 300; 076 250 4 10 ' 10 300 6 1 050 I 10 300 ro For every full sum of £50, and also for any fractional part of £50 thereof, ..... Of any other kind whatsoever not ) hereinbefore described, . . j And see sects. 96-100. Schedule, inventory, or document of any kind wliat- soever referred to, in, or by, and intended to be used, or given in evidence as part of, or as material to, any other in.strument charged with any duty, but which is separate and distinct from, and nob indorsed on or annexed to, such other in.struaient — Where such other instrument is chargeable f ^^'\^^\*,^„\"J,"// with any duty not exceedmg io.s., (instrumeut. In any other case, £0 10 o B.vemptions. (i.) [Not copied.] (2.) Any public map, plan, survey, apportionment, allotment, award, and other parochial or pub- lic document and writing, made under or in pursuance of any Act of Parliament, and de- posited or kept for reference in any regi.stry, or in any public office, or with the public books, papers, or writings of any parish. Surrender — Of copyholds. See Copyhold. Of any other kind whatsoever, not chargeable with duty as conveyance on sale or mortgage, . . 0100 13. Counterparts. Formerly leases vi^ere made by indenture.s, but since the 8 & 9 Vict. c. 106, s. 5, deeds need not be actually indented. COUXTKin'AKTS. 121 The part executed by tlie grantor was tlic original, and the parts executed by other jiarties were counterparts ( /'). Tlic lease is that wliich is executed by tlie lessor, and the counter- part is that which is executed by tlie lessee. Tlie admissi- bility in evidence of the counterpart is not affected by the want of stamp upon the original (;/). A counterpart is j)rimary evidence of the contents of the lease (/<), and of the execution thereof by the lessor {/). Under the Settled Estates Act, the execution of a lease is sufficient evidence that a counterpart has been duly executed by the lessee (j). In the absence of any express stipulation, tlie lessee pays for the cost of the lease, and the lessor for the cost of the counterpart (k). (/) If the two parts are executed 363. Houghton v. Koenig, 18 V, liy both jiarties, they aie duplicates. J5. 235. liuglies 1'. Clark, 10 C. ]•. iff) As to the staini)ing of counter- 905. parts, see ante. pp. ii6, 119. (j) iq & 20 Vict. c. 120, s. 34. (h) Paul V. Meek, 2 Y. & J. 116. (A) Jeuniiigs v. SLijor, 8 0. & V. (i) Roe d. West *•. Davis, 7 East. 61. PART II. CONTINUATION OF TENANCY. Duties of the Parties. Besides tliose duties which are imposed by the particular covenants contained in the contract between the parties, there are very important duties whicli, however they may be varied by arrangement, arise out of the rehition between the parties, and wliich have now to be considered. DIVISION I. — Duties of the Tenants. CHAPTER I. DUTY TO PAY RENT. 1. Time when Payable, 2. Mode of Payment, PAGE . 122 I Deductions — continued. 124 3. Deductions — I2S land-tax. ... 126 income-tax. ... 127 sewers' rates. ... 128 poor-rates. ... 128 other rates. ... 129 tithe rent-charge, ... ... 129 4. Apportionment, The principal duty of the tenant is the payment of his rent. The nature of rent and express covenants to pay rent have been con.sidered (nite, pp. 74, 79. Time of jiay- mcnt. I. Time when Payable, With respect to the certainty of the time when rent is to be paid, where the reservation is half-yearly or quarterly, but no specific days are mentioned, the time of payment must be computed by the habendum ; and in a ca.se in which rent was payable by a parol demise " from Ladyday following," PUTV TO PAY RF.NT. 1 23 evidence of the custom of tlie country was admitted to show i'iiap i. that by " Ladyday," Old Ladyday was intended (a). If the reservation be general, and no mention be made of half-yearly or quarterly payments, nothing is due till the end of the year (6); and wliere a reservation was general in the written agreement of demise, but the landlord afterwards asked the tenant how he would like to pay tlie rent, and the tenant rejilied quarterly, it was held that the rent was still due annually, and not quarterly, although rent had been actually paid quarterly (c). Where rent is payable quarterly, it will be intended to be payable by equal portions ((/), and will be due on the first of the days mentioned in order of time, without regard to the arrangement of the words (e). Where the reservation was " quarterly or half-quarterly, if desired," it was held that the landlord, having received the rent quar- terly for the first twelve montlis, could not distrain for a half-quarter's rent without notice (/). An agreement was entered into on the 31st of January, by which the tenant agreed to become tenant at the customary time of entry (which was the 12th of May), and to pay the annual rent at the usual time (which was Michaelmas), as agreed upon ; and it was held tliat this did not necessarily mean that the rent should be payable at the end of the year from the time of entry, but at the customary time of Michaelmas (y). Sometimes rent is reserved payable in advance. When this is the case, it should be clearly expressed whether the payment in advance is intended to refer to the current quarter at the time of the reservation, or to each successive quarter during the term (A). A rent may also be reserved to com- mence before the lessee is to enter on all the land demised, as where there is a lease to commence in futuro of Blackacre, and in pra-sniti of Whiteacre, rendering rent payable before the commencement of the term in Blackacre. Here the rent, (a) Doe d. H.1II r. Benson, 4 B. ((/) Com. Dig. Rent, (B) 8 ; Hut- & A. 588. chins V. Scott, 2 M. & \V. 809. (6) Cole r. Sury, Latch. 264. See (c) Hill r. Grange, Plowd. 171. also Comber v. Howard, i C. B. {/) Malliim ?'. Arden, 10 liing. 440; Turner v. Allday, Tyr. & Gr. 299. 819 ; Collett V. Curling, 10 Q. B. (g) Gore r. Lloyd, 12 JL & "\V. 785. 463. (c) Turner ;•. Allday, Tyr. k Gr. {h) Holland v. I'alser, 2 Stark, 819 ; Comber v. Howard, i M. k 161 ; Hojikins v. Hehnore, 8 A. Gr. 440. & E. 463. See M'Leish v. Tate, Cowp. 781. 124 COXTINUATIOX OF TENANCY. CHAi" I, l.ciiig ail entire thing, is payable according to the reserva- tion (i). Kent reserved upon a lease is not payable until the mid- night of the day specified in tlie lease for i)aynient of it (j). Though where, in order to create a forfeiture, it is neces- sary to make a demand, the demand must be made before sunset {k). AVhere the terms of the reservation were, " The yearly rent to be j£iio, and the rent shall be payable in advance if the landlord require the same," and no days of payment were si>ecified, but at the end of the quarter tlie landlord demanded the quarter's rent, and, upon non-payment, distrained for the whole yearly rent, it was ruled that he was only entitled to distrain for the quarter's rent (l). Where the tenant was to pay the last half-year's rent in advance, which was to be considered as reserved and due on a certain day preceding, if the landlord should see cause for such a demand, it was held that he might demand the rent and distrain for it between the day named and the expira- tion of the tenancy, without demand previous to the day named {in). If the tenant pay his rent before it is due, it is voluntary and not satisfactory (n). The statute of Anne, which does away with attornment (o), protects the tenant from any claim by an assignee of the reversion where no notice has been given ; but where the tenant paid rent to his landlord before it was due, and before it was due received notice from the assignee, it was held that the tenant was still liable to the assignee for tlie rent (7)). 2. Mode of Payment. Rent is to be paid on the land {q), except in the case of a (i) Gilb. on Kents, 25. (/) Clarke v. Holford, 2 C. & K. (j) Cutting V. Derby. 2 Wra. Bl. 540. 1077 ; Leftley v. iMills, 4 T. R. 170. (m) Witty v. Williams, 12 W. K. (k) Duppa V. Mayo, i Wni. 755, 10 L. T. N.S. 457, Q. B. Saund. 287; Tinckler v. Prentice, (n) Olun's case, «?;/);•«. 4 Taunt. 549 ; Clun's case, 10 Co. (ti) See Attornmeut, Part 4, c. i, 127. See also Com. Dig. Pleader s. i. (2 W. 49), Maund's case, 7 Co. R. (p) Re Nichols, L. R. 5 C. P. 28 b ; Fabian's case, i Leon. 305 ; 589, 30 L. J. C. P. 296. Wood k Ciiiver's case, 4 Leon. 179 ; (q) Kowe v. Young, 2 B. & B. Acocks V. Phillips, 5 H. & N. 183; 234; Crouch v. Fastolfe, Sir T. Collier v. Nukes, 2 C. &; K. 1012. Raymond, 418, Com. Dig. Pleader, See also post, Part 3, c. 3, s. i, pp. (2 W. 49). 257, 258. DUTY TO PAY KENT. 1^5 covenant to pay rent, for then the covenantor must pay or tender the money to the covenantee, according to his cove- nant (/•). It is said that, like any other species of debt, rent may be paid by a remittance through the post (s). A demand for rent is even higher than a demand upoji a bond or other specialty, although in case of death it ranks against the executor with specialty debts {(). So when the landlord takes a bond, bill, or note, this will not bar him of Lis remedies for rent (?/). Receipts for rent, like any other receipt, require a penny stamp if the sum amounts to £2 and upwards (v). 3. Deductions. Although no set-off or claim for damages sustained by the lessee can be set oflf against a claim for rent due to the lessor, unless by some express agreement (?/;), yet there are several payments in the nature of cross demands which the lessee is entitled to have deducted from the amount of the rent, and to have considered as payment /)?-o tanto. The general rule, however, is that the lessee can treat as a discharge of the rent only those payments to third parties which are made in satisfaction of a charge on the land or of a debt of the lessor (x). In Graham v. Allsopp (_?/), Rolfe, B., in giving the judgment of the Court, said, " Tiie principle upon whicii these cases rest is this — the immediate landlord is bound to protect his tenant from all paramount claims; and when, therefore, the teiumt is compelled, in order to protect himself in the enjoyment of the land in respect of which his rent is payable, to make payments which ought, as between himself and his landlord, to have been nuide by the latter, he is con- (r) Haldane v. Johnson, 8 Exch. & A. 165 ; Parrott v. ATiderson, 689. 7 Hvcli. 93 ; Drake v. Mitchell, (s) See Wooilfall, L. & T. 9tli 3 East. 251. edit. 359; Smith, L. & T. 2d edit. (r) See the 33 & 34 Vict. c. 97, 168. 8. 120, and sched\ile '* lleceijit." {t) Thompson v. Thompson, 9 («•) See now, however, the Agri- Price, 471; liuUer's N. P. 182. cultural Holdings Act, 1875; and The distinction between sj)ecialty Order xix.. Rule 3, of the Judica- and simple contract debts is abo- ture Act, 1875. lished in case of death by the 32 & (x) Taylor v. Zamira, 6 Taunt. 33 Vict. c. 46 ; but tliis would jiro- 524 ; Sai)sford v. Fletcher, 4 T. 1!. bably not affect a demand for rent. 511 ; Johnson 1'. Jones. 9 A. & K. («) Davis V. (iyde, 2 A. I't E. 624 ; 809 ; Carter v. Carter, 5 Bing. 406 ; AVorthington r. "Wigley. 3 Bing. Boodle v. Campbell, 7 M. k G. 3S6. Is'. C. 454 ; Murray v. King, 5 B. (y) 3 Exch, i86-iy8. 120 CONTINUATION OF TENAN'CY. riiAiv I. sidered as having been authorised by the huidlord so to npply his rent due or accruing due. All such payments, if incapable of being treated as actual payment of rent, would certainly give the tenant a right of action against his landlord as for money paid to his use, and so would, in an action of debt for the rent, form a legitimate subject of set-ofF. And though in a replevin a general set-off cannot be pleaded, yet the Courts have given to the tenant the benefit of a set-off as to payments of this description, by holding them to be in fact payments of the rent itself or of part of it." The ground upon which the landlord is presumed to autho- rise these ])aynients is that he impliedly undertakes to ])ro- tect the tenant against claims in respect of them (?/). But a mere claim by a mortgagee to the rent is not sufficient to raise a presumption of an authority from the lessor to pay the rent (2). i.aii.1 tax. By the 38 Geo. IIL c. 5, s. 17, it is enacted, "That the several and respective tenant or tenants of all houses, &c., which shall be rated by virtue of this Act, are hereby required and authorised to pay such sum or sums of money as shall be rated upon such houses, &,c., and to deduct out of the rent so much of the said rate as, in respect of the said rents of any such houses, &c., the landlord should and ought to pay and bear; and the said landlords, both mediate and immediate, according to their respective interests, are hereby required to allow such deductions and payments upon the receipt of the residue of the rents." By sect. 18, " Every tenant paying the said assessment or assessments last mentioned shall be acquitted and discharged of so much money as the said assessment or assessments shall amount unto, as if the satne had actually been paid unto such person or persons to whom his rent shall have been due and payable ; " with power to the Commissioners of land-tax, or any two of them, to settle, as they shall think fit, any differ- ences between landlord and tenant, or any other, concerning the said rates. When they have decided any such difference, the Court of Chancery will not re-examine it. Sect. 35 provides, " That nothing in this Act contained shall be construed to alter, change, or determine, or make void, any contracts, covenants, or agreements whatsoever be- ((/) Jones I'. Morris, 3 E.xcli. 742. (z) Wilton v. Dunn, 17 Q. B. 294. DUTY TO PAY KKNT. 12/ twceu laiullorJ and tenant, or any other persons, touching thi' i iiai*. i. payment of taxes and assessments in Enghand, Wales, and Berwick-upon-Tweed, anything herein contained to the con- trary notwithstanding." By sect. 4 of the above statute, tlie tax is to be rated upon all hereditaments, itc, and upon "all and every jKirson or persons, itc, having or holding, «.tc., such jjremises in respect thereof " (a). As between the tenant and the public, it is 11 tenant's tax (b) ; but the tenant is entitled to deduct out of the current or accruing rent, at the time when it is payable, so much of the amount jvayable for the tax as the landlord would have to pay upon the rent reserved (c) ; and this is so even where the premises have been improved in value, — the tenant having to pay the tax upon the increased value, but being only entitled to deduct the old deduction upon the rent reserved ((/). As to the effect of special clauses in a lease relating to the payment of taxes, see aiite, p. 80, Part i, c. 4, s. 7, Covenant to Pay Rates and Taxes, By the Property-Tax Act (e), occupiers of lands, &c., paying income-tax. the duty of sevenpence in the pound on the annual value of lands, &c., in respect of the property thereof, may deduct sevenpence in the ptmnd on the amount of their rent out of the first payment afterwards made on account of it, and the landlords are to allow the deduction under a penalty of .£50, and any stipulation made or to be made for payment in full, without allowing such deduction, will be void (/) ; and it is by the same statute enacted, " That no contract, covenant, or agreement between landlord and tenant, or any other jjerson, touching the payment of taxes and assessments to be charged on their respective premises, shall be deemed or construed to extend to the duties charged thereon under this Act, nor be (a) See per Bayley, J., "W.^nl i\ C 285 ; Ward v. Coii.st, 10 B. & C Const, 10 B. & C. 647 ; Chelsea 649, 657 ; Smith r. Humble, 15 C. Waterworks v. Bowloy, 17 Q. B. B. 321. 358, 20 L. J. Q. B. 520. (c) 5 & 6 Vict. c. 35, s. 60, Rule (b) R. V. IMitcham, Cald. 276 a ; 4-9. Watson V. Home, 7 B. .& C. 285; ( /) Id. s. 103. See Fuller ?-. Ward ?•. Const. 10 15. & C. 469. Abbott, 4 Taunt. 105; Tinkler r. (c) Andrew v. Hancock, i B. & B. Prentice, 4 Taunt. 549 ; Howe ?•. 37. Synse, 15 East. 440 ; Att.-Oen. r. (d) Yeo V. Leman, 2 Str. 1191, Shield, 3 H. & N. 834, 28 L. J. Ex. I Wils. 21 ; Hyde v. Hill, 3 T. R. 49 ; Festing v. Tayler, 3 ]i. & S. 231. 377; Graham v. Wade, 16 East. 32 L. J. Q. B. 41. See also Abadani 29; Whitfield v. Brandwood, 2 Star- v. Abadam, 33 Beavan, 475, 33 L. kie, 441 ; Watson v. Holme, 7 B, & J. Ch. 593. 128 CONTINUATION OF TENANCY. cii w. I. binding contrary to the intent Jind meaning of this Act ; V)\it tluit uU such duties sliall be charged upon and paid by the respective occupiers, subject to such deductions and repay- ments as are by this Act authorised and allowed, and all such deductions and repayments shall be made and allowed accord- ingly, notwithstanding such contracts, covenants, or agree- ments "(y the 27 Vict. c. 18, s. 15, he may now deduct it during the period through which the rent was accruing due. A payment of income-tax by the tenant operates as a pay- ment p7-o ictJifo of the rent {j). Sewws' rates. The scwers' rate, though not imposed directly by Act of Parliament, and therefore not to be considered as a parlia- mentary tax, may be levied on the tenant or occupier of the premises subject to it. And after he has paid it, he is en- titled to deduct from the next payment of his current rent so much of the rate as the landlord ought to bear, in like manner as in respect to land-tax (/.•). Poor-rates. The poor-rate is not a tax on the land, but a personal charge in respect of the land. In general, the occupier is liable to pay this tax, for the rate is a charge on the occupier in respect of his possession, and not upon the lessor in respect of the rent received (/). A landlord cannot be rated to the poor, even in respect of houses let to tenants who have been excused their rates on account of their poverty (??t). By the Small Tenements' Rating Act (n), however, the landlord might be rated instead of the occupier, w-here the rateable value of the premises did not exceed £6, and such occupiers mit;ht deduct the amount from the rent. ^V'itll respect to tenements in parishes wholly or partly in a parliamentary borough, the iff) S & 6 Vict. c. 35, s. 73. Dougl. 304, 43 Eliz. c. 2, s. i. As (A) <'iinimiiig v. IJeilboroiigh, 15 to deduction of rate in respect of ]M. k W. 438. sporting, see 37 & 38 Vict. c. 54, s. 6, (i) Iliid. infra ; and see s. 8 as to rating of {j) Franklin v. Carter, i C. B. mines, and see Duke of Devonshire 750, cited 15 M. kW. 441. v. IJarrow Hematite Steel Co., 46 (k) See (uile, Land-tax, p. 164. L. .1. Q. V>. 435. Smith V. Humble, 15 C B. 321 ; {m) Rex v. The Hull Dock Co., 3 P-almer v. Earith, 14 M. & W. 428 ; B. k C. 516. Brewster v. Kitcliell, 2 Salk. 616 ; (n) 13 & 14 Vict. c. 99 ; repealed "Waller v. Andrews, 3 M. & "W. 312. in 32 & 33 Vict. c. 41, s. 6. (/) Kowls V. Gells, C'owp. 452, i DUTY TO PAY RENT. 129 liabilit}' of the landlord in tliis respect ceased under tlio • chap. i. Reform Act of 1S67 (o) and the 32 and ^3 Vict. c. 41, s. 6. By the 32 and ;^^ Vict. c. 41, s. i, occupiers of tenements let for not more than three months may deduct the poor-rate from their rents ; and l)y sect. 8, where an owner having undertaken to pay the rates omits to do so, the occuj)ier may pay and deduct the amount from his rent ; and see sect. 12, where a distress is levied on the occupier (/>). Besides the poor-rate, there are various rates charged upon Other rates, the occupiers of premises rateable to the relief of the poor. The chief of these are the paving, watching, lighting, and Avater rates, the highway rates, the county and borough rates. These and others are, in general, regulated by the principles which govern the assessment to the poor-rates. Under the Tithe Commutation Acts, the rent-charge, Titiierent- which is substituted in lieu of tiie tithes, is charged npon the '^''"^'" laud, and may be recovered by distress. Neither the land- lord nor the tenant is, under these statutes, personally liable to pay it ; but if the latter pays it he may deduct it from his rent, unless he has agreed with his landlord to take the charge upon himself (q). By the 14 tt 15 Vict. c. 25, how- ever, a convenient remedy is given to the landlord or succeed- (0) 30 & 31 Vict. c. 102, s. 6. (;)) By the Hating Act 1874, 37 & 38 Vict. c. 54, s. 3, the Poor Jinte Acts are extended to rights of fowl- ing, of shouting, of taking or killing game or rabbits, and of fishing, when severed from the occupation of the land. By s. 6 (i). "Where any right of fowling or of shooting, or of taking or killing game or rabbits, or of fish- ing (hereinafter referred to as a right of spoi'ting) is severed from the occupation of the land, and is not let, and the owner of such right receives rent for the land, the said right shall not be separately valued or rated, but the gross and rateable value of the land shall bo estimated as if the said right were not severed ; and in such case if the rateable value is increased by reason of its being so estimated, but not other- wise, the occupier of the land may (unless he has sjiecially contracted to pay such rate in the event of an increase) deduct from his rent such portion of any poor or other local rate as is paid by him in respect of such increase ; .ind every assessment committee, on theai>|)lieation of the occupier, shall certifj' in the valua- tion list or otherwise the fact and amount of such increase. (2) Where any right of sporting when severed from the occupation of the land is let, either the owner or the lessee thereof, according as the persons making the rate deter- mine, may be rated as the occupier thereof. (3) Subject to the foregoing pro- visions of this section, the owner of any right or s])orting, when severed from the occujiation of the land, maybe rated as the occujiior thereof. (4) For the purposes of this sec- tion, the person who, if the right of sporting is not let, is entitled to exercise the right, or wlio, if the right islet, is entitled to ret-eive the rent for the same, shall bo deemed to be the owner of the right. (7) See tl»e 6 &; 7 ^'111. IV. c. 71, ss. 67, 80, 81 ; and Griffinhoofo v. Daubaz, 4 E. & B. 230, S. C. in error, 5 E. & B. 746. 130 CONTINUATIOX OF TEXANCV. ciiAP. I. ing tenant who is obliged to pay tlie rent-charge which ought to have been paid by the previous tenant. It is pi-ovided by sect. 4 of tliis Act, that " if any occupying tenant of land shall quit, leaving unpaid any tithe rent-charge for or charged upon such land, which he was by the terms of his tenancy or holding legally or equitably liable to pay, and the tithe-owner .shall give or have given notice of proceeding by distress upon the land for recovei'y thereof, it shall be lawful for the land- lord, or the succeeding tenant or occupier, to pay such tithe rent-charge, and any expen.ses incident thereto, and to recover the amount or sum of money which he may so pay over against such first-named tenant or occupier, or his legal re- presentatives, in the same manner as if the same were a debt by simp\e contract, due from such first-named tenant or occu- pier to the landlord or tenant making such payment.'' 4. APrORTIONMENT. The lessee's liability to pay rent according to his agreement may be altered either by act of the parties or by act of law : — I. Where the reversion of the lessor becomes severed by- alienation. 2. Where the lessee's interest in part of the estate is destroyed, and the rent is payable only in respect of the residue. 3. Where the interest of the lessee expires before his rent becomes due. 4. Where the lessor dies before the rent becomes due, but the lessee's interest does not thereby expire. 1. As the rent is incident to the reversion, whenever the reversion is severed by act of the parties, the rent shall be apportioned (r) ; but the lessee's concurrence to the ai)por- tionment is necessary, unless it be settled by a jury (s). The rent will also be apportioned in the case of a severance of the reversion by act of law (/). 2. Rent will be apportioned where the lessee's interest in part of the thing demised is extinguished either by the act of parties, the act of law, or the act of God. If the tenant surrender a portion of his estate, or if the lessor enters upon part of the tenant's land fur a forfeiture, or if part of the land ()•) Co. Litt. 148 ; Collins v. Har- (t) Moody r. Garnon, i Rolls fliiiK, I Rolls. Abr. 234 ; Doe d. Abr. 237, 1. 3, 1. 12 ; Ruslien's case, Yaughan v. Meyler, 2 M. & S. 276. Dyer, 4 B ; Ewer v. Moyle, Cro, (s) Bliss V. CoUings, 5 B. & Aid. Eiiz. 771. 876. DUTY TO PAY HKNT — AITOKTIOXMENT. 13I be recovered in an .ictioii for waste, the rout shall be aitpor- chap. I. tioued («). If the tenant be evicted out of a part of the land by force of a paranionnt title, the rent will be apportii)ned ; but if he be evicted wrongfully by the landlord, the rent will be susi)onded for the whole, and will not be a[)[)ortioned (<'). But if the tenant use and occu[)y the residue he will have to pay for such use and occupation («•) ; if he docs nut occupy he cannot be sued (.<•). Where a lease, not under seal, was made of lands, a portion of which was already leased to another in possession for a longer period, it was held that the lease was void as to the portion before leased, and that the rent could not be ai)por- tioned (1/). Bat where the second lease was under seal, the case was held to be different, because such a lease passed the reversion with the rent thereon (z). Where there is a demise of premises and an entire rent reserved, if any part of the premises could not legally be demised, the whole demise is void {(i). If two hereditaments are demised in one lease at distinct rents each is charged oidy with its own (b). Where the lessor fails to fulfil his agreement in the chief object which had induced the lessee to become a party to it {as where he fails to give the exclusive privilege of sporting), the lessee cannot be said to have enjoyed under the agree- ment ; and in an action for use and occupation, the tenant may show an eviction of part of the premises, and the amount of rent which the tenant ought to pay may be ascertained by a jury (c). It seems that where part of land is lost to the lessee by tlie act of God, — he may insist that the rent be apportioned, — as if the sea break in and overflow a part of the land, the (w) Smith V. Malings, Cro. Jac. (;/) Neale v. Mackenzie, in en-or, 160 ; l''is}ie V. Campion, i Kolls. i M. & W. 747 ; Holgate •;•. Kuy, Abr. 234, 1. 48, 235, 1. 20 ; ^Valkel■'s i C & K. 341 ; Eccl. Conimissidiii-ra case, 3 Rep. 22, i Hulls, Abr. 325, of Iielaud v. O'Couuor, 9 Ir. Com. 1. 23. 25. L. K. 242. (v) Smith V. Malings, Cro. Jac. (c) Eccl. Commisssioners of Ire- 160 ; "Walker's case, 3 Kep. 22 ; laml v. O'Connor, 9 Ir. Com. L. K. Stevenson v. Lanibanl, 2 Ea.st. 575 ; 242. Boodle V. Cami)bell, 7 M. & G. 386. (a) Doe d. Griffiths v. Lloyd, See also Morrison v. Chadwick, 3 Esp. 78. 7 C. B. 283 ; Newtou v. AUiu, i Q. (b) Tanfield v. Kogers, Cro. Eliz. B. 518. 341. (w) Stokes V. Cooper, 3 Camp. (c) Tomlinson v. Day, 2 B. & B. 514, note ; but see Burns f. Phelps, 680. Sue the judgment of llio I Stark, li. 94. Court by Lurd Du-nni.in in Nealo (x) Smith r. Ilaleigh, 3 Camp. v. Mackenzie, i M. & ^\'. 764. 513- 133 CONTINUATION OF TENANCY, criAP. I. rent sliall be niiportidiied (. 1122. (k) Symons v. Symous. Madd. & 134 CONTINUATION' OF TENANCY. cnAP. I \)e issuing or derived, or on tlie determination b}' any other means wliatsoever of the interest of any such person, lie or she, or his or her executors, administrators, or assigns, shall 1)6 entitled to a proportion of such rents, annuities, pensions, dividends, moduses, compositions, and other payments, ac- cording to the time which shall have elapsed from the com- mencement or last period of payment thereof respectively (as the case n)ay be), including the day of the death of such ]terson, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents, annuities, pensions, dividends, moduses, compositions, and other payments being made ; and every such person, his or her executors, administrator, and assigns, shall have such and the same remedies at law and in equity for recovering such apportioned parts of the said rents, annuities, pensions, dividends, moduses, compositions, and other payments, Avheu the entire portion of which such apportioned parts shall form part shall become due and payable, and not before, as he, she, or they would have had for recovering and obtaining such entire rents, annuities, pensions, dividends, moduses, compo- sitions, and other payments, if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised therein, shall not be resorted to for such apportioned parts specifi- cally as aforesaid, but the entire rents of which such portion shall form part shall be received and recovered by the person or persons Avho, if this Act had not passed, would have been entitled to such entire rents, and such portioiis shall be recoverable from such person or persons by the parties entitled to the same under this Act in any action or suit at law, or in equity." By sect. 3, " The provisions herein contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made 2)ayable in policies of assurance of any description." The provisions of this Act are extended to rent-charges payable under 6 ct 7 Will. IV. c. 71, s, 86, and to rent- charges payable under 4^5 Vict. c. 35, s. 50. The statute extends the doctrine of apportionment to rents, annuities, dividends, and other payments coming due at fixed periods (/). It also applies to rents, &.C., reserved by leases (!) St. Auljj-n V. St. Aubyn, 30 L. J. C'li. 917. DUTY TO PAY HEXT — ArrORTIOXMENT. I 35 granted after the Act under a power given before the Act (m). chap. i. It only applies to rents reserved by instruments in writing (n). The statute does not apply where the party entitled to the rent himself determines the lease during a current quarter (o). A testator gave the residue of his real and personal estate to trustees u(>on trust to receive and accumulate the rents and jtrofits till his nephew should attain twenty-one, when he was to be put into possession for his life. It was held tliat the trustees were entitled to an apportit)nment of the rents up to that period (/)). By the Apportionment Act, 1870 (q), after reciting the II Geo. II. c. 19, the 4^5 Will. IV. c. 22, the 6 ik 7 AVill. IV. c. 72, 14 A: 15 Vict. c. 25, and the 23 it 24 Vict, c. 154, it is enacted by sect. 2, that from and after the pass- ing of this Act, all rents, anmiities, dividends, and other periodical payments in the nature of income (whether re- served or made jiayable under an instrument in writing or otherwise), shall, like interest on monej^ lent, be considered as accruing from day to day, and shall be apportionable iu respect of time accordingly. By sect. 3, the apportioned part of any such rent, annuity, dividend, or other payment, shall be payable or recoverable, in the case of a continuing rent, amniity, or other such pay- ment, when '.the entire portion of which such apportioned part shall form part shall become due and payable, and not before ; and in tlie case of a rent, annuity, or other such pay- ment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable, if the same had not so determined, and not before. By sect. 4, all persons, and their respective heirs, executors, administrators, and assigns, and also the executors, adminis- trators, and assigns resjjectively of persons whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid, when payable (allowing proportionate parts (to) riummer r. AMiitely, i Jolins. 320. But see infra, 33 & 34 Vict. 585, 29 L. J. CI). 247 ; ■\Viudroper c. 3K. r. Cutfield, 33 L. J. Cb. 605 ; (o) Oldershaw v. Holt, 12 A. & Llewellyn v. Kous, L. E. 2 Eq. 27, E. 590 ; Hull r. Burgess, 5 B. & C. 35 Beav. 591. 332. ]'>ut see Bridges v. Potts, 17 (ft) In re Markby, 4 M. & Craig, C. B. N.S. 314, 33 L. J. C. P. 338. 484 ; Cattley V. Arnold, i John. & (p) AVlieeler r. Tootel, L. K. 3 Hemming, 651, 28 L. J. Ch. 353 ; Eq. 571, following St. Aubyu v. St. Mills V. Trumper, L. 11. 4 Ch. Ap. Auhyn, i Dr. k Sm. 611. (portioned part, shall be recovered and received by tlie heir, or other person, who, if the rent had not been apportionable under this Act, or otherwise, would have been entitled to such entire or continuing rent, and such apportioned part shall be recoverable from such heir, or other person, by the executors or otlier parties entitled under this Act to the same, by action at law or suit in equity. By sect. 5, in the construction of this Act : — Tlic word " rents " includes rent-service, rent-charge, and rent-seek, and also tithes, and all periodical })ayment3 or renderings in lieu of, or in the nature of rent or tithe. By sect. 7, the provisions of this Act shall not extend to any case in which it is, or shall be expressly stipulated, that no a2)portionment shall take place. 4. Where the lessor dies before the rent becomes due, but the lessor's interest does not thereby expire, the rent is pay- able to the heir or remainder-man. If the lessor dies after the rent has become due, it is payable to his executor {?•); and so of tenant for life, where the lease is not determined by his death (5); for the statutes above cited do not apply to cases where the lease is not determined by the death of the lessor (f). It was held that the proper action in which to apportion rent between a lessor and lessee was an action of debt, and it could not be apportioned in an action of covenant by lessor against lessee, such action being personal ; but in covenant against an assignee whose obligation arose from privity of estate, and not of contract, the case was different against him, therefore the rent might be a]>portioned in an action of covenant (y(). (r) Duppa V. Mayo, i Saund. ?•. Lady Wontworlli, 9 Mod. 21 ; 287. I P. Wins. 180. (s) Norris V. HaiTison, 2 Mad. (t) Atde, p. 132. Ch. R. 269; Barwick v. Foster, (») Steveusonr. Lambavd, 2 East. Cro. Jac. 227, 233 ; Lord Strafford 575. now ENFORCED. 137 SECTION I. now ENFORCED. PAOE r.\r,p. I, Action— th Ings absolutely privileged 149 Hse and occupation 133 things conditionatly privi- debt 139 leged () As to what words constitute a covenant, see ante, pp. 78, 79. (r) If there w.is a mere agreement by deed to demise, an action for use and occu])ation niiglitbemaintained. Elliott". Rogers. 4 Esp. 59 ; Gudgen V. Bessett, 6 E. & H. 986. (d) "Wilkins v. Wingate, 6 T. K. 62 ; Strou). At common law, this action did not lie for rent reserved on a freehold lease {(2). But by the 8 Anne, c. 14, s. 4, any per- sons entitled to rent in arrear on a lease for life or lives, may liave an action of debt during the existence of the life, as ou a lease for years during the term. An entry by the tenant on the premises demised was not necessary to support this action, as in the action for use and occupation (;). So an assignee of the term, who had never entered to take possession as assignee, might be liable to an action for the rent (s), but not to an action for use and occupation (t). So a husband was not liable in an action for use and occupation to pay for the enjoyment of a house by his wife dum sola ; such occupation not having been by him, nor at his request {11) ; but he would have been liable to an action for the rent, the declaration being framed specially accoixling to the facts. (/••) See Pindar ?•. Ainsley, cited in (/>) Gibson ?■. Kirk, i Q. B. 850, the judgment in Belfour r. Weston, 474. I T. R. 312 ; ]5iiker r. Holtzapjiel, {(/) Bishop of 'Winchester r. 4 Taunt. 45 ; Leeds v. Cheethani, i Wright, 2 Lord Raymond, 1056; Sim. 146; Izon r. Gorton, 5 Bing. Kelly ?•, Cluhhe. 3 B. & B. 130. N. C. 501 ; Packer v. Gihbins, i Q. (c) Bellasis r. Bnrbrick, i Salk. B. 421 ; Surplice ?'. Farnsworth, 7 209; Bull r. Silihs. 8 T. R. 327; 1^1. &. G. 576 ; Loft V. Dennis, i E. Smith ?■. Scott, 6 C. B. K.S. 781, & p]. 856. per Willes, J. See also Alexander (/) Bull r. Sibbs, 8 T. R. 327; r. Dyer, Cro. Eliz. 169. Bertie v. Beaumont, 16 East. 33 ; (s) Ringer v. Cann, 3 M. & W. AVaring V. Kinj;, 8 I^r. k W. 571; 343; Burton c. Barclay, 7 ]5iiig. 745, Ciiristy r. Tanaed, 7 M. & W. 127, 761 ; Williams v. Bosancpiet, i 15. & 9 M. & W. 438, 12 M. & W. 316. B. 238. (ni) Drapers. Crofts, 15 M. & W. (t) How v. Kennett, 3 A. & E. 166. 659 ; Lowe V. Ross, 5 Excii. 556 ; (n) Bull, N. P. 167 Clarke v. Webb, i C. U. k R. 29 ; (o) Lord Ward v. Lumley, 5 H. Jones r. Reynolds. 7 C. & P. 335. & N. 87, 656, 29 L. J. Ex. 322. {i()Richardsoni'. Hall, I B. (ScB. 50. 140 CONTINUATION OF TENANCY. CUAP. I. § I. By 3 il- 4 Will. IV. c. 42, s. 3, a limitation of twenty years is imposed on actions of debt for rent upon an indenture of demise. Rent when due, but not accruing rent, may be attaclied under the 17 it 18 Vict. c. 125, s. 61 (c). 2. Distress. T)f>fini(i..n of Another mode of enforcing the payment of rent is by dis- i>L-utsj. tress. A distress is the taking of a personal chattel out of the possession of the wrong-doer, into the custody of the party injured, to procure a satisfaction for the wrong committed (i/;), and is the remedy most frequently resorted to by landlords for obtaining payment of rent in arrear. And W'hen resorted to, it is a bar to an action for rent, so long as the goods con- tinue in the landlord's hands as a pledge unsold (x). Inas- much as, strictly speaking, rent can issue out of real property oidy, there can be no distress for payments made for the use of personal property, which are sometimes also called rents. "When, however, personal and real property are let together, there may be a distress for the rent, because it issues wholly out of the real part of the property demised (y). The thing taken, as well as the process, is sometimes called a distress. The rent must be certain, and not subject to conditional deductions, or the landlord will not be entitled to distrain (z). Neither can he distrain where the amount of rent is not fixed by the demise, although he may do so as soon as it has been ascertained, whether by the actual payment of a certain rent, or in any other manner (a). (a.) "Who may Disti;ain. ■\vhoTnay Ju oj-der to warrant a distress, the relation of landlord and tenant must exist. If, therefore, a termor parts with the (?•) ISIitchell V. Lee, 8 B. & S. 92, 361 ; Riseley v. llyle, 11 U. &, W. L. R. 2 Q. ].. 259 ; Joues v. Thonip- 16 ; Watson v. "\Y;iud, 8 Exch. 335 ; son, 27 Jj. J. Q. B. 234. Hancock v. Austin, 14 C. B. N.S. (iv) 3 BI. Com. 6. 634. See Daniel v. Grade, 6 Q. B. (x) Leliain r. riiilpot,44L. J. Ex. 145; Doe d. Edney v. Benliani, 7 225 ; L. 11. 10 Exch. 242. Q. B. 976. The right to distrain (y) Newman z'. Anderton, 2 X. R. may exist by express agreement, 224. And see Baynes v. .Smith, i altluiugli not reserved upon what is Esp. N. V. 206. strictly a rent. See Pollitt v. For- (z) Rogn.art v. Porter, 7 Bing. 451. I'est, 11 Q. B. 949. (a) Knight v. Bennett, 3 Bing. dis rain. DISTRESS. 141 •whole of bis interest in the term, whether by assignment or cn.vr. i. § in any other way, reserving a rent, he has no power of dis- tress without a special clause of distress, because there is no tenancy {!>) ; and if lie underlet, so as to reserve a reversion to himself, yet when his own term is expired, his remedy by distress against his under-tenant is gone (c). A tenant from year to year, however, underletting from year to year, has such a reversion as will entitle liim to distrain (J). Wiiere a party is in possession in contemplation only of a tenancy, there is no demise, and consequently no reversion to which the power of distress can attach (e), unless the agreement under which possession is taken goes on to say that until a lease be executed the rent and covenants shall be enforced as if such lease had actually been executed (/). As soon as a tenancy is constituted, and rent is in arrear, the landlord may distrain (). A mere authority to receive the rent will not, however, without more, authorise a distress for rent in arrear (7). A receiver of rents appointed by the Court of Chancery may distrain for arrears in the [fj] Clowes V. Hughes, L. 11. 5 Ex. (/) Begbie v. Hayne, 2 Bing. N.S. 160, 36 L. J. Ex. 62. 124 ; Child v. Chamberlain, 6 Car. (/i) Moss V. Gallimore, Doug. 279; & P. 213. Kogers v. Humphreys, 4 Ad. & El. [m] Cary r. Matthews, Salk. 191 ; 299. Maiiby r. Long, 3 Leo. 107. (i) Rogers v. Humphreys, 4 Ad. (//) Randal r. Dean, 2 Lutw. & El. 299. 149 b ; Vin. Ab. vol. 3 p. 538. (j) Doe cZ. Chawner 1^. Boulter, 6 (0) Trevillian r. Pavne, 11 Mod. Ad. &; VA. 675 ; Partington v. Wood- 112; Anon. Goodb. 100, 4 Vin. Ab. cock, ib. 680 ; Evans v. Elliott, 9 A. Bailiff (D), \A. 7 ; Wliitehead v. & E. 342 ; Brown v. Storey, i ]\Lin. Taylor, 10 Ad. & El. 212. & G. 117; Wilton V. Dunn, 17 Q. ( />) Whitehead t;. Taylor, 10 Ad. B. 294. & E. 212. (k) Pope V. Biggs, 9 B. & C. 421 ; (r/) AVard v. Shrew, 9. Bing. £08, Evans v. Elliot, 9 Ad. & E. 342. 2 M. & Sc. 756. DISTRESS. 145 name of the lessor without the order of tlie Court {/). It", chap i. j i. however, tliere is a doubt wiio is tlie lessor, he shouKl obtain such lui order for his own protection (.s), as he can only dis- train in the name of the person having tiie legal right to do so ((). Of course, if he is himself the actual lessor, he may distrain in his own name, and this altliougli it appears on the face of the lease that he is a receiver only, and the rent is reserved to him iu that capacity («). Similarly, a guardian making leases in his ow^n name may also distrain in his own name (r). By the common law, upon the death of a lessor possessed wiio may of a freehold estate, the remedy by distress was gone, because Executors anii the land went to the heir or remainder-man, while the rent in Aamiuibimtors arrear at the time of the lessor's death went to his executor or administrator (w). Where, however, tenant for years under- let for years and died, the executor, or his representative in ■iujhiitum, so long as the term remained in them, could dis- train for the arrears, for they were never separated from the reversion, and both belonged to the executor (a.-). The power to distrain was first extended to the executors and administrators of tlie It-ssur in the case of a lease for lives of freehold lands (//), by the 32 Hen. VIII. c. 37, s. i (z), Avhich empowers tliem to distrain for the arrearages upon the lands charged wliile such lands are in the possession of the tenant, or of any one claiming by and from him by purchase, gift, or descent («), in like manner and form as the testator might have done in his lifetime (6) ; and now, by the 3 & 4 Will. IV. c. 42, s. 37, the executors or administrators of any lessor or landlord may distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, iu like manner as he liim- self might have done. By sect. 38, the arrearages may be {)•) Pitt V. Snowden, 3 Atk. 750. (a;) AVade v. Marsh, Latch. 211 ; (s) Hwghes V. Huglies, 3 Bio. i 1{(>1. Abr. 672, 135. C. C. 87 ; See Rickiuau v. Johns, ('/) Ajjpletoii r. Doily, Yelv. 135. L. R. 6 Eq. 488. (2) Co. Litt. 162 b ; Prescott r. (I) Hughes V. Hughes, 3 Rro. Roucdier, 2 1> & Ad. 859 ; Hool v. C 0. 87 ; Pitt I'. Snowden, .<(((/)»•«. Rell, Lord R.iyni. 572, 8. C 179 ; Bennett v. Robins, 5 Car. & Fairfax i'. Lord ])orl>y, 2 Vein. P. 379 612; Anon. I Leon. 302, i>l. 418. (w) Co. Litt. 162 a. {!)) Co. Litt. 162 b ; Ognel's case, 4 Rep. 50 b. E 146 CONTINUATION OF TENANCr. ciiAr. I. § I. distrained for after tlie end or determination of the term or lease at will, in the same manner as if the term or lease had not been ended or determined ; bnt the distress must be made within six calendar months after the determination of the term or lease, and during the continuance of the possession of the tenant from whom the arrears became due, and all the powers and provisions in the several statutes relating to dis- tresses for rent will be applicable to distresses so made. Ati administrator cannot distrain before administration, nor justify the detention of goods distrained by the intestate for rent, and remaining under distress at his death ; an executor, however, may distrain before probate {<■). If an administrator makes an under-lease of a term of years of tlie deceased, reserving rent to himself, his executors, etc., it has been held that his executors, and not the administrator ile bonis non, shall have the rent ; but it would seem that, at common law, they could not distrain for it ('/), because the reversion belongs to the administrator de bonis iion, and a reversion is necessary to found the remedy by distress (^) ; there seems, however, no sufficient reason why the executors may not distrain under the 3 & 4 Will. IV. c. 42. Sequestrators. By the 12 it 13 Vict. c. 67, a Sequestrator is empowered to levy a distress in his own name for the recovery of tithes, rents-charge, or rents, &c., payable to the incumbent of the secprestrated estate. (b.) What may be Distijatxed. What tilings may The general rule is that all personal chattels found on the ciViiI^i:ii"ru'ie.~ premises demised may be distrained for rent, whether they be the chattels of the tenant or of a third person (/). But to (c) Dejoncourt r. Rogers, 8 Jr. the niglit, witli the privity of the L. kep. 450. See Whitehead v. lessor or lessee, on their way to Taylor, 10 A. & E. 210. market. Tate v. Gleeil, 2 "Wius. {ij) l)rue f. Baylie, I Freem. 402, Saiiiul. 290 (n) 7. If a stranger's 2 Leo. 100. cattle, by default of their owner, or (e) Brawley v. "Wade, i M'Clel. by Wreaking the fences, escape, they 664; I'reece v. Corrie, 2 Bing. 24; are distrainable without being /ov/;/< Pluck V. Digges, 2 Dow & C. 180 ; and conrhant. ilargreaves, Co. Litt. Bunie r. Richardson, 4 Taunt. 720. 47 b, note 301 ; Poole v. Longueville, ( /") Gilb. Distr. 33 ; 3BI. Com. 7. 2 Saunds. 290, note 7; Kemp «'. Cattle of a stranger upon the land Cniwes, 2 Lutw. 1580; Reynolds i'. are immediately liable to be dis- Oakley, 1 Biuwid. 170. Butiftliey trained, Read r. Burley, Cro. Eliz. escape tlirougli default of the tenant, 549; Gillr. Gawin, 2 Rol. Rep. 124, they cannot be distrained by the except when they are turned in for landlord for reut-service until they DISTRESS. 147 this general rule there are several exceptions ; for (i.) some chap, i. § 1 things Avliich are not personal chattels liave been reiRlered distrainable by different statutes ; and (2.) certain personal chattels are protected from distress either absolutely or con- ditionally. By the II Geo. II. c. 10. s. 8, an exception to this rule is ^hattiiinKs . . , TDiiV be (lis- created in tiie case of growing crops, the words being, " All tmined— sorts of corn and grass, hops, roots, fruits, pulse, or other hay''bi'ra"Tc' product whatsoever which shall be growiuir, ikc, and the same to cut, gatiier, make, cnre, carry, aiid lay up when ripe," etc. (7). The landlord, however, is not bound to resort to growing crops to satisfy the distress before taking things conditionally privileged, such as beasts of the plough, ifcc. (h). The 2 Will. &. ilary, sess. i, c. 5, s. 3, gives power to any person having rent in arrear, and due upon any demise, lease, or contract whatsoever (see sect. 2), to seize any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or otherwise upon any part of the land, (kc, for or iu the nature of a distress. Under this Act and the 4 Geo. II. c. 28, s. 5, the grantee of a rent-charge may distrain hay or straw, loose or in the stack (i). But under the 11 Geo. II. c. 19, the grantee of an annuity cannot distrain growing crops, even under an express ])0wer in the deed, for that Act only applies to landlords, and not to "any person having rent in arrear "(J). If the corn be sold before it is ripe, the sale is void (k), though not the distress. Where the defendant seized the jilaintiff's growing wiieat, and sold it while growing for its full value to a purchaser, who cut it, and the sur{)lus of the Lave been levant and conchant ; nor nre not sul)ject to tlie process of be- even afterwards for rent reserved, coming ripe, &c. Clark r. Gaskarth, unless the owner of the cattle, after 8 Taunt. 431. notice, fail to remove tlieni. (iill ?•. (h) I'iggott ;•. Birtles, i ]\[. i: AV. Gawin, gnpra. In Miles r. Furber, 441. 42 L. J. Q. B. 41, L. K. 8 Q. B. 77, (1) Johnson v. Faulkner, 2 Q. B. Mellor, J., suggested tliat cattle 925. agisting near large towns would be {j) Miller r. Green, 2 Cr. k J. 142, privileged. 8 Bing. 92 (in error). [{/) Trees growing in the grounds (^•) Owen v. Legh, 3 B. & A. 470. of a nurseryman are not within the See Proudlove v. Twemlow, 1 Cr. ii words "other product," for they M. 326. 148 CONTINUATION OF TENANCY. CHAP. 1. § I. sale, .after satisfying tlie rent, was paid over to tlie plaintiff, and be sustained no damage, it was held that the phiiatiti" was not entitled to recover even nominal damages (/). Growing corn sold under an execution could not formerly be distrained unless the purchaser allowed it to remain an unreasonable time on the ground after it Avas ripe (to). But now, by the 14 & 15 Vict. c. 25, s. 2, growing crops seized and sold by the sheriff under an execution are liable, as long as they remain on the land, to be distrained for the rent which becomes due after the seizure and sale, provided there is no other sufficient distress {post, p. 152). The 56 Geo. III. c. 50, s. i (?t), provides, that no sheriff or other officer in England or Wales shall, by virtue of any pro- cess of any court of law, carry off or sell, or dispose of for the purpose of being carried off from any lands let to farm, any straw threshed or unthreshed, or any straw of crops growing, or any chaff, colder, or any turni[)S, or any manure, compost, ashes, or seaweed, in any case whatsoever, nor any hay, grass, or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables, being produce of such lands, in any case where, according to any covenant or written agreement, entered into and made for the benefit of the owner or landlord of any farm, such ha}', grass, or grasses, tares and vetches, roots or vegetables, ought not to be taken off or withholden from such lands, or which, by the tenor or effect of such covenants or agreements, ought to be used or expended thereon, and of which covenants or agreements such sheriff or other officer shall have received a written notice before he shall have proceeded to sale. By sect. 3 it is provided, that the .sheriff may dispose of produce, subject to an agreement to e-x^jend it on the land {<>). By sect. 6, in all cases where any purchaser or purchasers of any crops or produce hereinbefore mentioned shall have (I) Rodgcrs V. rarker, 18 C. B. Erantom r. Giiffits, 46 L. J. C. V. 112. (C A.) 408. (to) Peacock r. Purvis, 2 B. & B. ()() iiee jM.tt, Part 2, c. 2, Duty to 362; Wright r. Dewes, i A. & E. Repair and Cultivate. 641 ; Hutt V. IMorrell, 11 A. & E. (o) It has been doubted whether 425. Growing crops are not personal this section is more than directory, chattels within the Bills of Sale Act, See Wright v. Dewes, i Ad. k E. 644. DISTRKSS. 149 entered into any agreement with such sheriff or other ofllccr, cii ai' i i i. touching tlie use and e.\{)enililure thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent on any corn, ha}', straw, or other jiro- duce thereof, which, at the time of such sale and the execution of such agreement entered into under the i)rovisi(His of this Act, shall have been severed from the soil, and sold, subjecr, to such agreement, by such sheriff or other oflicer; nor on any turnips, whether drawn or growing, if sold according to the provisions of this Act ; nor on any horses, sheep, or other cattle, nor on any beast whatsoever, nor on any waggons, carts, or other implements of husbandry, which any ])erson or persons shall employ, keep, or use on such lands, for the i)ur- pose of threshing out, carrying, or consuming any such corn, hay, straw, turnips, or other produce under the provisions of the Act, and the agreement or agreements directed to be entered into between the sheriff or other officer and the pur- chaser or purchasers of such crops and produce as hereinbefore mentioned. When hay or straw are seized under a distress, and the tenant is under covenant to expend them upon the premises, the landlord cannot sell tliem at a less price, suVijucting them to a condition that the purchaser shall expend them according to the covenant (p). (c.) What may xot be Distrained. I, Things annexed to the freehold. 2. Things of third Tiunps nbso- ""xi X x» • mi • 1-1 ^ ^ lately J>nvi- j)ersons on tlie tenants premises. 3. Ihings \vl)ich cannot te legeu. restored in the same plight, as sheaves of corn, ic. 4. Things in actual use. I. Whatever is part of the freehold is exempted from dis- tress ; thus kilns, furnaces, cauldrons, windows, doors, and the like, affixed to the freehold, cannot be distrained {'/). There ai)pear to be three reasons for this rule ; first, that fixtures ip) Ridgway v. Lord StiiflFord, 6 (7) Co. Litt. 47 b ; Simpson v. Excli. 404 ; Frusber r. Lee, 10 M. & Haitopp, "VVilles, 515, i Smitb's L. W. 709. In Abbey v. Petcb, 8 M. & C, notes, p. 373 ; Niblett r. Smith, W. 419, which was an e.u-her case, 4 T. 11. 504 ; Darby r. Harris, i G. tlie contrary was decided, but this kD. 234; Dalton r. Whittem, 3 G. case is now overruled. See Hawkins k D. 260; Gorton i". Falkuer, 4 T. V. Walrond, 45 L. J. C. P. 772, L. K. K. 567. I C. P. D. 280. 150 CONTINUATION OF TENANCY. CHAP I. § I. are not persnii;\l cliattels, but form part of the thing demised ; secondly, tliat tliey cannot be taken away without damage to the freehold (;•) ; and thirdly, tliat tliey woukl be injured by severance and removal, and could not be restored in the same condition as they were in when taken (s) ; and this is a rule still in force, subject to some statutory exceptions as to grow- ing crops and matters of this nature (t). This privilege extends also to such things as would be removable as between landlord and tenant (?<). Thus, kitchen-ranges, stoves, cop- pers, and grates are not di.strainable, altliough they may be removed by the tenant during the term (v) ; and a mere tem- porary removal of fixtures for the purpose of repairing, &c., "will not destroy the privilege (?f). A question has often arisen as to tlie degree of annexation required to bring the particular thing within the rule whicli excepts fixtures from distress. In Wiltsheer v. Cottrell (j.-) it M'as held that a granary, resting by its mere weight upon straddles built into the land, was not a fixture within the meaning of a deed by wliich all the fixtures appertaining to a farm were conveyed. In Duck v. Braddyll (i/) it was doubted whetlier machinery bolted to the floor of a factory was dis- trainable. Besides the test of being easily removed without injury to itself or the premises, it is also to be considered wliether tlie annexation is for the permanent and substantial improvement of the premises, or merely for a temporary purpose (z). 2. Things delivered to the tenant to be wrought, worked up, or managed, or taken care of, in the way of his trade or employment, are not distrainalde (a). So goods sent to an {)•) Seethe judgment in Hellawell Niblett v. Sinit}i, 4T. 11. 504, 11 Co. r. Eastwood, 6 Exch. 311. K. 50. (s) Ternies de la Ley, Distress, (x) i E. & B. 674. 69 a ; Co. Litt. 47 a. (.;/) Duck r. Braddyll, M'Clel. 217, (t) Morley v. I'incombe, 2 Exch. S. C. 13 I'rice, 445. See also Traji- 101. pes V. Harter, 2 (Jr. k. M. 177. (u) There is a distinction in this (s) Hellawell v. Eastwood, 6 respect between a distress and an Exch. 311 ; AValmsley r. IMilne, 7 execution; for under the latter, fix- C. B. N.S. 115. See also Lane r. tures whicli wouhl Ite removable by Dixon, 3 C. B. 776 ; Wood r. the tenant as between liira and his Hewett, 8 Q. B. 913 ; "Waterfall r. landlord, may be seized. Poole's Penistone, 6 C. &■ B. 876. See post, case, I Salk. 368. Fixtures, Part 3, c. 7. {v) Darby v. Harris, i Q. B. 895 ; (a) i Inst. 47 a ; Gisbourn f. Hurst, Pitt V. Shew, 4 B. & A. 208 ; Daltoii i Salk. 249 ; Oilman v. Elton, 3 B. r. Whittem, 3 G. & D. 260. & B. 75 ; Thomi)Son v. INIashiter, t {2v) Gorton v. Falkner, 4 T. R. Bing. 283 ; Matthias v. ilesnard, 2 567 ; Bro. Abr. tit. Distress, pi. 23 ; C. & P. 353, Co. Litt. 47 a ; Gibson V. Ireson, 3 Q. B. 39. DISTIJKSS. 151 auctioneer to be solJ were held to be privileged from being chai- i 5 •. distrained fur his rent (b), and the carcass of a beast sent to a butcher to be slaughtered was also held to be privileged (c). A cab in the hands of an agent for the sale of carriages is privileged ('/). (Joods in possession of a pawnbroker aa security for money advanced are also privileged (t), and so are goods deposited with a furniture wareiionsenian to be kept safely ( /"). Where, liowever, the goods are not delivered for the purpose of being wrought up, or having anything done to them, or of being kept safely, by th« tenant in the way of his trade, they are not privileged, as in the case of a carriage sent in order to convey goods, or casks containing beer, etc. ( Com. 391 ; Davies ?'. Powell, supra, things inivileged suh modo, yet if and I Smith's L. C. 378, 5th edit. that distress consists of growing (7') Such as property taken dannige crops, which are only distrainable feas.int, or in execution. See i Tnst. by statute, and are not immediately 47 a ; Eaton v. Southby, Willes, productive, the landlord may dis- 131 ; Peacock v. I'urvis, 2 B. & H. train the things privileged siih modo. 362 ; Wright v. Dewes, i A. & Vl. Piggott r. Birtles, i M. & W. 441. 641 ; Wharton r. ><'aylor, 12 Q. B. («) Colts, steers, and heifers, do 673. But as to the landlord's right not fall witiiin this class, as they do where goods are taken in execution, not gain the laud. Keeu r. Priest, see 8 Anne, c. 14, s. i ; 7 & 8 Vict. 4 H. & N. 236. c. 96, s. 67 ; 19 & 20 Vict. c. 108, ()•) Nargett v. Nias, i E. & E. s. 75 ; Cox V. Leigh, 43 L. J. Q. B. 439; Gorton v. Falkner, supra; 123 ; L. R. 9 Q. B. 333. Fenton v. Logan, sithra. (s) Robinson r. Walter, 3 Bulst. («•) Keen v. Priest, supra. CHAP. I. § 154 CONTINUATION OF TENANCY. (il.) AViiKRH THE Distress may be ^Iadk. Where the Tlie distress can only be made on some part of tlie demised ili'-ui '""^ ""'^ '"^ premises out of wiiich the rent issues (.<:j, except in the case of the Crown, and except in tlie case of fraudulent removals to prevent a distress, as to which see infra; so that if the landlord go to distrain cattle, and they escape out of the lands demised, or into any highway within his view, he can- not pursue them [ij), neither can he if they be driven off the lands in his sight for any lawful purpose (2) ; but where they are driven oti" in the view of the landlord, for the express purpose of avoiding the distress, the landlord may make fresh j)ursuit, and seize them in the highway, or in any other place otf the lands demised (a). But at common law, if before the landlord had view of the cattle, they were driven off the lands, even for the express purpose of avoiding a distress, the landlord could not pursue or follow them {b). By the II Geo. II. c. 19, s. I, however, if the tenant fraudulently or clandestinely (f) remove his goods from the demised pre- mises, in order to prevent a distress, the landlord is within thirty days allowed to follow and distrain them, wherever they may be found, provided they have not been previously sold for valuable consideration to a bondjide purchaser. To entitle the landlord to pursue the goods of the tenant under this statute, it was held by Eyre, C.J., that the removal must have taken place after the rent actually became due, and was in arrear (d). And although in a subsequent case, where the goods had been removed from the premises the night before the rent became due. Lord Ellenborough, C.J., de- clared {e) that upon this point he entertained some consider- able doubts, and, but that the case before him turned upon anotlier point, would have reserved it for the opinion of the Court ; yet the law, as laid down by Chief-Justice Eyre, has (./■) I Rol. Abr. 671, 1. 37 ; Co. (11) Co. Litt. 161 a ; 2 Inst. 131. Litt. 161 a; Gilb. Distress, 40; [z) Il>i(l. 1 Rol. Abr. 671, 1. 45. Capelr. Buszard, 6 Ring. 150; Com. (a) Ibid. Dig. Distress (A) 3, (B) i ; Rogers \h) Co. Litt. 161 a. V. Birkmire, 2 Strauge, 1040. The [c) Watson v. Main, 3 Esp. 15 ; statute of ]\Iarlel)ridge (52 Hen. III. Oppernian ?•. Sniitii, 4 D. & R. 33. c. 15) confirmed the common law in The landlord must show tliat the this respect. See 2 Inst. 131, and goods were removed to elude the Gilb. Dist. 40. It seems sufficient distress. Parry v. Duncan, 7 Bing. if the distress be made not abso- 243. lutely on the premises, although (d) "Watson v. Main, 3 Esp. 15. practically so. Gillingham ?-.Gwyes, (e) Furneaux v. Fotherby, 4 16 L. T. N.S. 640, Lush., J. ; Camp. 136. Hodges V. Lawrence, 18 Just. Peace, 347 Ex. DISTRESS. 155 since been recognised and confirmed on argument by tlic liiat i. s Court of Common Pleas (/). The statute applies to the goods of the tenant only {;/). By sect. 4, an additional (/^) remedy is given to the hmdlonl by complaint to two justices, where the goods do not exceed the value of .£50. By sect. 7 of the 11 Geo. 11. c. 19, when goods are fraudu- lently removed, and placed in any house or place locked up or otherwise secured, the landlord or his agent may, with the assistance of a ])eace-onicer {and in the case of a dwelling- house, after oath being made before a magistrate of a reason- able ground to sus{)ect that the goods are in it), break open the house, etc., in the day-time, and distrain the goods as if they had been in any open })lace. By the 8th sect, of the same statute, 11 Geo. II. c. 19, the landlc>rd may distrain cattle (of the tenants) depasturing upon any common or way appertaining to the })remises demised, a privilege too reasonable to require comment. The language of this section is, that the landlords or their agents may " take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants, feeding or depas- turing upon any common appendant or appurtenant, or any way belonging, to all or any part of the premises demised or holden." (e.) When the Distress may be Made. As rent is not in airear till the last minute of the day on when the iiis- whicli it becomes jiayable has elapsed, the landlord cainiot '■'^^^ "'•'>' ''*^ distrain until the day after it becomes due (/), except by express agreement (j). Nor can he distrain in the night-time, i.e., from sunset to sunrise (k). At common hnv a landlord could not have distrained for rent after the determination of the tenancy (/). But by (/) Rand v. Vauglian, i Bing. (j) Buckley r. Taylor, 2 T. K. N.C. 767. 600; Giles V. Spencer, 3 C. B. N.S, (r/) Thornton v. Adams, 5 JI. k S. 244, 26 L. J. (J. P. 237. 38 ; Portnian v. Harrell, 6 C. & P. (/:) Co. Litt. 142 a ; Aldenburgh 225. V. Peaple, 6 C. ) Before this statute it was not 720. \inusual, and may still be expedient, (n) Taylorson v. Peters, 7 A. & to insert in leases a provision that E. no; Doe d. David v. Williams, the last half year's rent shall be paid 7 C. & P. 322 ; Nuttall v. Staunton, on some day pi-ior to tlie deteruiina- 4 B. & C. 51 ; Braithwaite t\ Cook- tion of the lease, so as to enable sey, I H. Bl. 465 ; Turner?-. Barnes, tlie landlord to distrain before the 2 B. & S. 435, 31 L. J. Q. B. 170. removal of the tenant. See Co. But as to possession continued be- Litt. 47 b. yond the expiration of tha tenn (/>) Ward v. Day, 4 B. & S. 337, under a custom of the country, see 33 L. J. Q. B. 254. Beavan v. Delahay, i H. Bl. 5; (g) See 3 & 4 Will. IV. c. 27, ss. 2, CriflBths v. Puleston, 13 M. & W. 3, 8. 358. PISTRESS. 157 lias been liekl not to apply to rents rescrvetl on a demise, but ciiAr i. § i. to be coniined to rents existing as an inheritance distinct from the land, and for whicii before tliis Act the party entitled to tliem might have had an assize. The only way, tiierefore, in wliich it can affect tlie riglit of making a distress is by its operation in destroying the riglit to recover the land itself after the period of limitation whicli it mentions (/). Generally speaking a second distress cannot lawfully be Ai)!iniionm''nt ; made wiiere the first lias been abandoned, nor can it be divided '**^'^""'' '''^'•"^■•'>''- and taken part at one time and part at another {.<), if tliere is a fair opportunity for making the distress in the first instance. But where the tenant by his own misconduct prevents the first distress, or where a mistake has arisen with respect to the vaUie of the goods seized (t), then a second distress would be lawful («). By the 17th Car. II. c. 7, s. 4, it is provided, that " in all cases (aforesaid) where the value of tlie cattle distrained as aforesaid shall not' be found to be to the value of the arrears distrained for, the party to whom such arrears were due, his executors and administrators, may from time to time distrain again for the residue of the said arrears." Although there can in general be no second distress, yet where there has been no abandonment, there may be a recon- tinuance of a distress, and then even an outer-door may be broken open {v). It is a question for the jury whether there has been an abandonment or not (?('). (f.) How A Distress should be Made. A distress for rent is made by the landlord or his agent "<"^ f^ ■''*•'■«!'•'' e ,, ■, •! • /\i should be made. entering upon some part or tlie demised premises [x) and (r) See Paget v. Foley, 2 Bing. 4 B. & Ad. 413; Dawson v. Crop)), X. (J. 679 ; Grant v. Ellis, 9 M. & i C. B. 961 ; Nasli r. Lucas, L. 11. AV. 113; Doe d. Angell v. Angell, 2 Q. B. 590. 9 Q. 15. 328; The Dean of Ely v. (<) Hutching i-. Chambers, i Burr. Casli, 15 M. & W. 617; Owen v. De 579, i Wnis. Sauiul. 201, n (i). Beauvoir, i6 M. k W. 547, S. C. 5 (it) Lee v. Cooke, 2 H. & N. 584, Exch. 166. And see the notes to 3 H. & N. 203; Woolaston, apjilt., Nepean v. Doe, 2 Smith's L. C. v. Stafford, rospondt. , 15 C. B. 278. 577, 5th eilit. ; anl. Di'.iper V. Thompson, 4 C. & P. 84, 21 ; Hancock r. Austin, 14 C. 15. JjiiUen, 131. N.S. 634, 32 L. J. V. P. 252. See (z) Wood V. Nunn, 5 Bing. 10 ; Ryan v. Snilcock, 7 E.'cch. 72, 21 L. Bwan V. Earl of Falmoutli, 8 15. & J. Ex. 55. C. 456 ; Hutchiiis v. Scott, 2 M. & (c) Browning v. Dann, Bull, X. W. 809; Cramer r. IMotfc, L. K. P. 81, Co. Litt. 161 a. 5 Q. ]i. 357. 39 L. J. Q. B. 172. {<() lildridge v. Stacey, 15 C. B. (it) Lemayne's case, 5 Co. Ft ; N.S. 458. Duke of Brunswick ?•. Slowman, 8 (t) llyan v. Shilcock, 7 Excli. C. B. 317; Brown v. Glenn, 16 Q. 72, 21, L. J. Ex. 55; Nixon r. Free- B. 254. 9 V^in. Abr. 128, Distress man, 5 H. & N. 647, 653. (E) 2, pi. 6, Co. Litt. 161 a ; Attack (/) Gould v. Bradstock, 4 Taunt. r. Bramwell, 3 B. & S. 520, 32 L. J. 562. Q. B. 146 ; Hancock v. Austin, 14 ((/) See Bannister v. Hyde, siqn-a, C. B. N.S. 634, 32 L. J. C. P. 252 ; p. 157. Nash V. Lucas, L. K. 2 Q. B. 590, 8 B. & S. 531. DISTRESS. 159 out and remove the distress (/<). Where it is necessary, a chap, i 5 police otlicer may be called in (/). In order that the tenant may know what goods the land- lord intends to distrain, the party distraining must make an inventory of as many goods as are sufficient to cover the rent distrained for, and the expenses of the distress and the inven- tory should not be vague and uncertain (J). Notice of the distress, and of the time when the goods will be ap[)raised and sold unless replevied or the rent or charges satisfied, should be given ; and it is convenient to write such notice at the bottom of the inventory (k). It must be served with a true coi)y of the inventory on the tenant, or left at the house or other most notorious place charged with the rent (/). The place to which the goods are removed must be mentioned in the notice (;«). The notice, unless personal, must be in writing (it). It must not be vague and uncertain as to the goods distrained (o). Want of notice does not render the distress illegal, but makes it irregular to proceed to sell (p). The notice need not state when the rent became due, nor the amount ('/), but it must not state an amount greater than the rent actually due (?•). Any defect in the notice is generally immaterial, fur a man may distrain for one cause and avow or justify for another (s). It frequently happens that when a distress is commenced, Tenacr. the tenant makes a tender of the rent in arrear. The com- mon law rule upon this suliject is thus laid down by Lord Coke, in the Six Carpenters' case (/) : — ^" Tender upon the land, before the distress, makes the distress tortious ; tender after the distress, and before the impounding, makes the detainer, and not the taking, Avrongful. Tender after the {h) Pugh V. Griffiths, 7 A. & E. 827. Lucas v. Tarleton, 3 H. & N. 116 ; (i) Skiiiiaoie v. Booth, 6 C. & 1'. Wilson v. Nightingale, siijiva ; Ro- 777. biiison r. Waddington, 13 Q. 15. 753. (j) See Wakeman v. Lindsay, 14 (q) Moss v. Gallimore, i Doug. Q. B. 625. 279, I Smith's L. C. 5th edit. 542; (A) Lyon r. Tomkies, i M. & W. Tancred v. Leyland, 16 Q. B. 669. 606, 2 W. k M. sess. I, c. 5, 8. 2. ()•) See Taylor v. Heuuiker, post, {I) 2 W. & M. c. 5, s. 2. p. 168. (to) II Geo. II. c. 19, 8. 9. (s) C'rowther v. Ranisbottom, 7 (11) Wilson V. Nightingale, 8 Q. T. K. 654 ; Etherton v. Popplewell, B. 1034; Walter V. Kumball, I Lord i East. 139; "Wootlpy i\ Gregory, Raymond, 53. 2 J. & J. 536 ; Trent v. Hunt, 9 (o) Kerby v. Harding, 6 E.\ch. Excli. 14, 22 Exch. 318; Phillips 234, 20 L. J. Ex. 163 ; Wakeman v. v. Whitsed. 2 E. & E. 804, 29 L. J. Lindsay, 14 Q. B. 625. Q. ]}. 164. (/)) Trent v. Hunt, 9 Exch. 14; (t) 8 Kep. 146. i6o COXTIXLTATIOX OF TEXAXCY. ciiAr. T. § I. iinpiiunding makes iieitlier the one nor the otlier wront^fiil, lor then it comes too late, because then the case is put to the trial of the hiw to be there determined." If, however, the tender is made within the five daysaUowed by tlie statute (u) for tlie tenant to roplev}-, an action may be maintained against the landk)rd, if he proceed to sell the distress, although the goods were impounded before tender (v). A tender of the rent without expenses after a warrant of dis- tress has been delivered to the broker, is a good tender (w). Whether the distress be '* impounded " before the tender or ncjt, is a question depending on the circumstances of the case (x). A tender may be made to the landlord liimself, even where he has [ilaced the matter in his broker's hands (?/). So it may be made to any a;:fent of the landlord having autliority to receive the rent (z). But a tender to a man who is merely in possession is bad (a). The tenant must tender the full amount of the rent due, exce[)t actual or con- structive payments on account of rent (h). He must also tender a sufficient sum for the lawful expenses of the dis- tress (c). The tender must be niade unconditionally (d). (g.) What to be done with it. What to I)p (loue Willi it. As soon as the distress (e) is made, the landlord or his agent must impound the goods in a pound (/) suitable to the nature of the distress. Thus, if the articles distrained are of a perishable nature, the landlord should secure them in a (u) 2 "NV. & M. sess. i, c. 5, s. 2. (v) Johnaon v. Upliani, 2 E. & E. 250, 28 L. J. Q. B. 252, over- ruling Ellis r. Taylor, 8 i\I. & W. 415. See Fell v. Wliitaker, 41 L. J. Q. B. 78. (w) Bennett v. Bayes, 5 H. & X. 391- (x) Thomas v. Harries, i M. & G. 695; Swan V. Earl of Faliiioutb, 8 ]}. & C. 456; Teuiiant r. Field, 8 E. & Bl. 336 ; Brown v. Powell, 4 Biii<;f. 230; Pejipercorn f. Hoffman, 9 M. &W. 618. (?/) Smith V. Goodwin, 4 B. & Ad. 413- (z) Bennett v. Bayes, 5 H. & N. 391, 29 L. J. Ex. 224 ; Hatch v. Hale, 15 Q. B. 10 ; Brown v. Powell, 4 15ing. 230. (ji) Boulton V. Eeynolds, 2 E. & E. 269, 29 L. J. Q. B. II ; Pilk- ington v. Hootings, Cro. Eliz. 813. (b) See a7ite. Deductions, p. 125. (c) See infra, p. 165. ((/) Finch r. Miller, 5 C. B. 428 ; Bowen r. Owen, 11 Q. B. 130 ; Bull V. Parker, 2 Dow N.S. 345 ; Wan- ning V. Lunn, 2 C. & K. 18 ; Jennings ?•. IMajor, 8 0. & P. 61 ; Foord V. Xoll, 2 Dow. N.S. 617 ; Laing ?'. Meaiulor, i C. k T 257. (e) At common law the distress was only a pledge for the rent in arrear, and tlie landlord was entitled to keep it as a security until liis rent Wiis satisfied. If he sold it, he hecame a trespasser ah initio, and the proceedings were void. See Six Carpenters' case, i Smith's L. C 132 ; Gilbert on Distress, 67. (/) Co. Litt. 47 h. PISTHESS. i6r pound covert or weather-proof ; if they are cattle, in an open criArr s i. l)Oiind (y). At common hiw, if tlie clistraitier put the cattle distrained into a jnihlic pound, they hiy tliere at tlie tenant's risk, and if they starved, tiie distrainer was not answerable (A). By 12 it 13 Vict. c. 92, s. 5, " Every person wlio shall impound or confine, or cause to bi; impounded or confined, in any pound or receptacle of the like nature any animal, shall provide and supply, during such confinement, a siitticient quantity of fit and wliolesome food and water to sucli animal ; and every such person who shall refuse or neglect to provide and sup[»ly such animal with such food and water as aforesaid, shall, for every such offence, forfeit and pay a penalty of twenty shillings." By sect. 6, " In case any animal shall at any time be im- pounded or confined as aforesaid, and shall continue confined without fit and suffirient food and water for more than twelve successive hours, it shall and may be lawful to and for any person whomsoever, from time to time, and as often .as shall be necessary, to enter into and upon any pound or other receptacle of the like nature, in which any such animal shall be so confined, and to supply such aniuuvl with fit and suffi- cient food and water during so long a time as such animal shall remain and continue confined as aforesaid, without being liable to any action of trespass, or any other proceeding by any person whomsoever, for or by reason of such entry for the purposes aforesaid ; and the reasonable cost of such food and water shall be paid by the owner of such animal, befoie such animal is removed, to the person who shall supply the same, and the said cost niay be recovered in like manner as herein provided for the recovery of penalties under this Act," i.e., by summary proceedings before a justice. By 17 & 18 Vict. c. 60, s. I, "Every person who, since the passing of the said Act of the 12th and 13th. years of Her Majest}', has impounded or confined, or hereafter shall impound or confine, as in the said Act mentioned, any animal, and has provided and supplied, or shall hereafter pro- vide and supply, such animal with food and water as therein mentioned, shall and may, and he is hereby authorised, to recover of and from the owner or owners of such animal, not exceeding double the value of the food atul water so already (g) See Wilder v. Speer, 8 A. & E. tress (D) ; Bignell v. Clark, 5 H. & 547 ; Gilbert on Dist. 62, 2 Inst. N. 485. 106, Co. Litt. 37 b, Bac. Abr. Dis- (//) E;ic. Abr. Distress (D). j L 1 62 CONTINUATION OF TKNANCV. CHAP. I. § I. or hereafter to be supplied to sucli animal, in like manner as is by the said last-mentioned Act provided for the recovery of penalties under the same Act ; and every person who has supplied or shall hereafter supply such food and water, shall be at liberty, if he shall so think fit, instead of proceeding for the recovery of the value thereof as last aforesaid, after the expiration of seven clear days from the time of impounding the same, to sell any such animal openly at any public market {after having given three days' public printed notice tliereof), for the most money that can be got for the same, and to apply the produce in discharge of the value of sucli food and water so supplied as aforesaid, and the expense of and attending such sale, rendering the overplus {if any) to the owner of such animal " (i). When the distress is taken, the distrainer cannot use or work it, except it seems where the user is necessary for its preservation ; and if any injury happens to the distress from any act of the distrainer, who is responsible for the state of the pound, he must answer for it to the tenant (J). At common law a distress could be impounded by removing it from the place at which it was taken and placing it in a common pound anywhere under the custody of the pound- keeper {/•■). But the 52 Hen. III. (statute of Marlebridge), c. 4, prohibited the person distraining from driving the dis- tress out of the county. The i & 2 Philip and Mary, c. 12, directed that no distress of cattle should be driven out of the hundred, rape, wapentake, or lathe where it was taken, except to an open pound in the same shire not above three miles from the place of taking it. By the 11 Geo. II. c. 19, s. 10, it was enacted, " That it shall be lawful for any person or persons lawfully taking any distress for any kind of rent, to impound or otherwise secure the distress so made, of what nature or kind soever it may be, in such place, or on such part of the premises chargeable with the rent, as shall be most fit and convenient for the impounding and ^securing such distress." The goods seized should, if convenient, be put into one (/) See Mason v. Newlantl, 7 C ( 'liambeilayn's case, i hmn. 220, & P- 575 ; Layton v. Hurry, 8 Q. B. Bagshawe v. Gilliiird, i Koll. Abr. 8ri. 673, 1. 26, 32; Smith i: Wright, 6 ij) Wilder V. Speer, 8 A. & E. H. & N. 821. 547 ; Vaspar v. Edwards, i Salk. (k) Thomas v. Harries, i M. & 248 ; Dodd V. Morgan, 6 Mod. 216 ; Gr. 707, n. (a). Duncomb v. Keeve, Cro. Eliz. 783 ; DISTRESS. 163 room, unless the consent of tlie owner is given to the am- tii at f § i. tr;uy, and very sliglit evidence is necessary to prove such, consent (/). By 2 Will. & Mary, sess. i, c. 5, s. 2, "Where any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or contract whatsoever, and the tenant or owner of the goods so distrained siiall not, within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion- liouse, or other most notorious place on the premises charged with the rent distrained for, replevy the same, with sutlicient security to be given to the sheritf according to law, then in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff or under-sheriff of the county, or witli the constable of the hundred, parish, or place where such distress shall be taken (who are hereby required in aiding and assisting therein), cause the goods and chattels so distrained to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable are hereby empowered to swear) to appraise the same truly according to the best of their understandings ; and after such appraisement, shall and may lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, towards satisfaction of the rent for which the said goods and chattels shall be dis- trained, and of the charges of such di-stress, appraisement, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable, for the owner's use." Although it is in most cases optional with the party dis- training to impound the distress either on or off the premises, yet where sheaves or cocks of corn, or corn loose or in the straw-, or hay lying in a barn or granary, or on a hovel, stack, or rick, or otherwise, are distrained under the statute 2 Will. & Mary, sess. i, c. 5, a removal from the premises where seized is prohibited. Growing crops seized under 11 Geo. II. c. 19, ss. 8 and 9, can only be removed when they have become ripe and are cut, and there is no barn or proper place on the premises wherein they may be placed [m). The distress being considered merely as a plerlge, could not at common law have been sold. (/) "\Vasliliourn r. Black, 11 East. (m) Piggott v. Liitles, i M. & AV. 405 n ; Cox r. Painter, 7 C. & P. 448. 767 ; "Woods V. Duraiit, 16 M. & W. 149- 164 CONTIXUATIOX OF TENANCY. :CHAP ^§ I. The notice having been given, and the five days having expired, the hmdlortl may proceed witli the appraisement and sale, except in tlie case of growing crops, which are not appraiseable until after they are ripe and severed (?t). The five days mentioned in the statute are exclusive of the day of taking and notice, and also of the day of sale (0). But the landlord has a reasonable time after the expiration of the five days for the purpose of appraising and selling (p). During such reasonable time the goods distrained are in cus- todid legis, and are protected from seizure under an execu- tion [q). It is usual, however, for the tenant to consent that the landlord should remain beyond the five days. If such consent is given, it is prudent to have it writing. The two .appraisers (r), who must be persons having no interest, and should not be the broker or party distraining {.«), should then be sworn by the sheriff or nnder-sheriff of the county, or constable of the parish where it is taken (t) before the appraisement is made. The constable should be present when the appraisement is made ; lie usually indorses a memo- randum of the administration of the oath and attendance upon the inventory. Such memorandum does not require a stamp (?/). The jippraiseis must not be sworn by the con- stable of an adjoining parish, although the proper constable cannot be f )und (v). But if the tenant, to save expense, dispenses with the formalities required by the statute, he will be estopped from insisting on an irregularity occasioned at his own instance (lu). For stamp upon appraisement, see the Stamp Act, 1870, 2,2, & 34 Yict. c. 97, .«. 38, and the schedule. (n) II Geo. II. c. 19, s. 8 ; Owen (7) Bac. Abr. Execution (C) 4; V. Legli, 3 B. &; A. 470. See supra. Harrison v. Barry, 7 Price, 690. (0) Kobinson v. AVaddingtou, 13 (»•) Even where the rent does not Q. B. 753 ; Harper v. Taswell, 6 C. exceed £20 tliere must be two. See &; P. 166. In Lucas v. Tarleton, 3 57 Geo. III. c. 93 ; Allen v. Flicker, .rt. & N. 116, it was held, in action 10 A. &. E. 640; Bishop v. Bryant, fir selling the i^oods within the five 6 C. & P. 484. days that iilaintilf was not entitled (s) Andrews v. Russell, Bull, to a verdict unless he had sustained N. P. 81 ; Lyon v. Weldon, 2 Bing. actual damage. See also liodgers 334 ; "Westwood i;. Cowne, i Strange, V. Parker, 18 C. B. 112. 172. (fi) Pitt V. Shew, 4 B. & A. 208 ; (t) Avennell r. Crocker, Moo. & Griffin v. Seott, 2 Ld. llaynioiid, JI. 172. 1424; Winterljourne v. Morgan, 11 («) See Dunn r. Lowe, 4Bing. 193. East. 395, 2 Camp. 117 n; Etherton (v) Kenney v. May, i M. k Rob. V. Poppleton, I East. 139; Harrison 56; Wallace i*. King, i H. Bl. 13. V. Barry, 7 Price, 690; Fisher v. (w) Bishop v. Bryant, 6 C. & P. Algar, 2 C. & P. 274. 448. DISTliKSS. 165 The goods having been appraised, must be sold for tlic chat. i. § i. best price that can be got for them, unless they have been replevied, or the rent and the charges have been paid. Where tlie goods are sold at their appraised value, the law will intend that they have been sold at the best price (.r). It is not unusual for the appraisers to buy them at their own valuation, but the landlord cannot sell the goods to himself even at their appraised value (y). The produce of the sale must be applied in satisfaction of the rent and the expenses of the distress, and if the produce is more than suflieient for that purpose, the overplus must be left in the hands of the sheriff (2). There is no statutory regulation as to the costs of a distress for rent above £20, except the i & 2 Philip ound on the net produce Levying distress £030 of the sale. Man in possession per day 026 1 66 CONTINUATION OF TENANCY. CHAP. I § I. done therein, tlian such as arc fixed and set forth in the sche- dule hereunto annexed, and appropriated to each act which shall have been done in conrse of such distress ; and no per- son or persons whatsoever shall make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, unless such act shall have been really done." By sect. 2 a party aggrieved by a distress may apply to justices for redress, who may order treble the amount of moneys utdawfuUy taken to be paid to the party complaining, together with full costs. The w^ords of the section are, " If any person, &c., shall take, etc., any other or greater costs or charges than are set down in the schedule, or make any charge whatsoever for any act, matter, or thing mentioned in the schedule and not really done ;" and it W'as held that these words did not ajiply tt) the case of a i)erson bond fide thinking that he ought to have an appraisement, and other matters of detail, and charging for them, although such charges were not strictly lawful ((/). There is in sect. 6 of the above statute an enactment appli- cable to every distress, whether the sum distrained for be above or under £20. It is, " That every broker or other ])erson who shall make and levy any distress whatsoever, shall give a copy of his charges, and of all the costs and charges of any distress whatsoever, signed by him, to the j)erson or persons on whose goods and chattels any distress shall be levied, although the amount of rent demanded shall exceed the sum of £20." A landlord who does not personally interfere in the distress is not liable for the neglect of the broker employed by him to make a distress in not delivering a copy of the charges required by the statute (e). A bailiff has no right to go on with a distress and sale for his expenses after his authority has been withdrawn by the landlord (/). After appraisement and sale, the landlord is, under the 2 Will. ). It is permissive waste if the tenant .suffer the park-paling to be decayed, so that the deer stray and are lost («). (/)) Co. Litt. 53 a,; Keg. v. Leigh, 7 Bing. 640, Com. Dig. Waste (D) 10 A. & E. 398. 5 ; Doe il. Foley v. Wilson, 1 1 East. (q) See infra. Fire, p. 178. 56 (?•) Co. Litt. 53 a. Trees must be (t) Co. Litt. 53 a ; Phillips r. above twenty years old to be tiin- Smith, supra; Dunn v. Bryan, bar ; Dunn r. Bryan, 7 Ir. K. Eq. supra. 143. Oak, iisli, and elm of tli:it («) Co. Litt. 53 a ; Id. note (6). age are always considered timber ; See Wetherell v. Howells, i Cam]). 2 Inst. 643 ; Aubrey v. Fisher, 10 227. East. 431. Others may by local (?•) Co. Litt. 53 b custom be accounted timber; see (j«) Gage v. Smitli, 2 Rol. Abr. the judgment of the Ci'urt in 817,1. 17; Dunu v. Bryan, 7 Ir. R. Phillips r. Smith, 14 M. & W. 589, Eq. 143. 593, citing Lord Darcy v. Askwith, (x) Co. Litt. 53 b ; Dunn r. Hob. 234. Bryan, sit/ira. (s) Co. Litt. 53 h; Darcy i". Ask- (//) It)id. with. Hob. 238; Gorges r. St;infieM, (;) Moyle v. Moyle, Owen, 66. Cro. Eliz. 593 ; Simmons v. Norlou, (a) Ibid. M waste. 178 CONTINUATION OF TENANCY. CHAP, n A tenant for life " witliout impeachment of waste," might Without im- cut clowu trccs .lutl opeii mines, and is entitled to the timber peiicimient of -when they are cut down (6) ; but he would have been restrained by injunction from pulling down houses, and cutting down ornamental or sheltering timber (r), and from takin'4 tlie lead and tiles otF a house (r/), and now he has no legal right wliatever to commit waste of this description, unless an intention to confer such right expressly appears V)y the instrument creating the estate. See Jud. Act, 1S73, s. 25 (2). An action of trespass for waste cannot be maintained by one tenant in common against another (e). 2. Fire, Fire. If the premises were accidentally or negligently destroyed by fire, the tenant would not at common law have been guilty of waste if he neglected to rebuild them (/). By the statute of Gloucester (6 Edw. L c. 5), tenants for life or years were made liable for waste witliout any exception, and were therefore rendered answerable for destruction by fire () Hutton v. M'arreii, 1 M. & Archer, Skin. 210 ; Bullock v. Doni- AV. 472, per I'arke, B. mitt, 6 T. K. 650. (ry) See also infra, Part 3, c. 6, (/) Weigall V. Waters, 6 T. R. Emblements. 488 ; Izoii r. Gorton, 5 Bing. N. C. (r) Dalhy r. Hirst, i B. & B. 224; 501; Holtzappel r. Baker, 4 Taunt. Legli r. Hewitt, 4 East. 154; Earl 45 ; Packker r. Gibbins, i Q. B. of Falmouth r. Thomas, i C. & 421 ; Loft r. Dennis, i E. & E. 474. M. 89. If a particular custom is (m) Monk v. Cooi)er, i Ld. Kaym. alleged, it mustbejiroved as alleged. 1477 ; Belfour v. Weston, i T. R. See Angersteiu v. Handson, i C M. 310. & R. 789. (n) Bennett v. Ireland, i E. B. & («) See ante, p. 148, Distress. E. 326. I So CONTINUATION OF TENANCY, ciiAi'. II § I. eftV'ct of sucli covenants or agreements, ought to be used or expended thereon, and of which covenants or agreements such sheriff shall have received a written notice before he shall have proceeded to sale." Sect. 2 provides, that the tenant shall give notice to the sheriff of the existence of such covenants, and of the name and residence of the landlord ; that the sheriff shall give notice to the landlord of the seizure of the crojis ; and that, if he hears nothing from him, he shall put off" the sale as long as he legally can. Subsequent sections provide, however, that such produce may be sold, subject to an agreement to expend it on the land, according to the custom of the country, where there is no covenant or agreement, .and according to such contract, where there is. In case of such qualified sale, the purchasers may use all such necessary barns, buildings, yards, and fields, for the purjjose of consuming such produce, as the sheriff shall assign for the pur[)()se, and which the tenant would have been entitled to, and ought to have used for the like purjiose. By sect. 11, the assignees of bankrupt or insolvent tenants, together with all purchasers whatsoever, are prevented from dis})osiiig of the crops in any otlier manner than the bankrupt, &c., him- self might do (t). By 14 and 15 Vict. c. 25, s. 2, growing crops seized anil sold under an execution, are liable for accru- ing or subsequent rent. S E C TIO K I. HOW ENFORCED. 1. Action fok Xox-Repair 2. Action von Waste 182 3. Entry or Ejectmext 4. Injunction PAoii: 182 183 Foe the breach of a covenant to repair, the landlord has two remedies — one by action, and another by entry or ejectment. For waste the landlord has a remedy by action and by injunc- tion. I. Action for Non-Eepair. Action for uon- An actiou of covenant might be brought by the landlord repair. against the tenant for uon-repair where the lease was under (t) 'Wilmot r. Rose, 3 E. & E. 563 ; ex parte, Maundrell, 2 Mad. 315; ex parte, Wbittington Buck. 87; ex parte, Nixon, i Rose, 445. REMEDIES FOR NOX-REr.VlK AND "WASTE. iSl seal (ii) ; but where it was not under se:il, tlie action must have ciruvn § i. been in the form of assumpsit for breach of the promise to repair, or case for the breach of duty (r). An action for non-repair may be maintained before the expiration of the lease, where a lessee has covenanted to repair, and keep in repair, during the continuance of the term (w) ; and in sucli action, the landlord may recover damnges commensurate with the injury to the marketable value of the reversion, and not the amount reijuired to put the premises in repair-(.r). But where the lease is determined, as by forfeiture, it is otherwise (y). Where the landlord does the repairs him?elf (as, for instance, where being himself lessee he was anxious to do so to save a forfeiture) he can only recover nominal damages ; for as the premises are repaired there is at the time of bringing the action no injury to the reversion {:). In the absence of actual loss a lessee can oidy recover nominal damages against his assignee of the term, for breach of covenant to keep in repair, although his lessors have actually commenced an action against him for his breach in not repairing, for the lessee has parted with his reversion, and although he is liable on his covenants with his landlord, yet the assignee is the person primarily liable (a). The landlord may also recover a compensation for the loss of the use of the premises while the repairs are being effected {h) ; but he cannot recover the costs of alterations necessary to enable him to carry on his business in new premises, nor their rent, nor the cost of restoring them to their original state (c). (m) a covenant to repair must be {x) Worcester School Trustees express, but an implied one of a v. Rowlands, 9 C. & P. 734 ; Smith similar nature arises from the rela- v. Peat, 9 Ex. 161 ; Turner v. tion of landlord and tenant. See Lamb, 14 M. & W. 412 ; Mills r. supra, c. 4, 8. 7, subsects. (a.) and I'.ast London Union, 21 W. K. 142, (b.) 27 L. T. N.S. 557. (t) Kinh-side v. Thornton, 2 "W. (ij) Davies ?•. Underwood, 27 L. J. Bl. iiii ; Marker r. Kenrick, 13 Ex. 113, 2 H. & N. 570. C. B. 188. See also Elliott v. (z) Williams r. Williams, 43 L. Johnson, 8 B. & S. 38, L. R. 2 J. C. P. 382; L. R. 9 C. P. 659 ; Q. B. 120, 36 L. J. Q. ]i. 44; forms but see Colley v. Streeton, 2 B. & of actions are now practically abol- C. 273. ished, but the old distinctions are {a) Beattie v. Quirey, 10 Ir. R. nevertheless useful, as they still in- C. L. 516 Exch. dicate the principles of law which (6) Woods v. Pope, i Bing. N. C. govern particular classes of facts. 467. (iv) Luxmore v. Robson, i B. & A. (c) Green v. Bales, 2 Q. B. 225. 584. 1 82 CONTIXUATIOX OF TENANCY. CUAP. II § I. Tlie amount of damages also depends upon tlie condition of the premises at the time of tlie demise (d). An action for non-repair of fences will lie, as such repair is a duty which is cast upon the tenant (e). Tenants at will, however, do not seem to be liable fur non-repair of fences or permissive waste (/). Sometimes the landlord takes ui)on himself the duty of repairing, and the tenant is then protected (y). 2. Action for "Waste. Action for waste. Au actiou on the case did not lie for permissive waste (h), but it lay for acts done by a tenant while holding over after the expiration of a notice to quit (i), and against a tenant's executor for waste committed within six months before the tenant's death (j). 3. Entry or Eecovery by Action. Entry or action A breach of a covcuaut to repair will not justify a re-entry lor recovery. ^^^ ^ forfeiture, uuless there is in the lease or agreement {/c) a proviso for re-entry in case of non-repair ; nor will such a breach support an action for the recovery of land ; but if there be such a proviso, the landlord may re-enter or main- tain an action upon broach at any time during the term (/). An action of ejectment under a power of re-entry was held to be maintainable by au assignee of the reversion of a lease upon a breach of covenant to repair without giving the tenant notice of the assignment (m). The courts will not decree the specific performance of a (rf) Stanley v. Towgood, 3 Bing, N. R. 290; Martin v. Gilliam, 7 A. N. C. 4 ; Burdett v. Withers, 7 A. & E. 540 ; Harnett v. Maitland, 16 arty sought to be restrained was in possession, or if out of possession, was a mere stranger; but if he is out of possession, but is acting under colour of right, then the Court Avould grant an injunction (r). All these nice distinctions are now abolished by the aliove section. The party to whom the reversioji belongs may apply to the Court for an injunction to restrain commissive waste (s), and this is a most efficient remedy, as the Court interferes to prevent the injury from being done, and does Jiot merely grant a reniedy for it wlien done. An injunction was given to restrain injury to fish-ponds (/). Tenants are usually restrained from removing hay, straw, dung, ifec, contrary to their express covenants, and from removing fixtures attached to the freehold («). Where the lease contained no express covenant not to plough the pasture, but a covenant to manage pasture in a husband-like manner, an injunction was granted to restrain the tenant from plough- ing ti.e pasture [v). In granting an injunction to restrain the tenant from break- ing up a meadow for the jmrpose of building, contrary to an express covenant in the lease, Eldon, L. Ch., said that he did so ui>on the ground of the covenant not to convert the meadow, otherwise he should doubt whether it would do seem necessary or expeilient for the (r) Lowndes v. Beetle, 33 L. J. purpose of obtuiuing full iuforniation Ch. 451. or evidence." (s) Com. Dig. Chancery (D) 11 ; And by rule 4, "An application Smith v. Carter, 18 Beav. 78 ; Duke for an order untler section 25, sub- of Beaufort v. Bates, 31 L. J. Ch. section 8 of the Act, or under rules 481 ; Farrant r. Lovel, 3 Atk. 723 ; 2 and 3 of this order, may be made to Jackson v. Cator, sVes. 688; Mayor the Court or a Judge by any party, of London v. Hedger, 18 Ves. 355 ; If the ajiplication be by the plaintiff Norway v. Rowe, 19 Ves. 154; for an order under the said sub- Hindley i\ Emery, L. R. i Eq. 52, section 8, it may be m;ide either ex 35 L. J. Cli. 6; Onslow v. , 16 parte or with notice, atul if for an Ves. 173 ; Pratt v. lirett, 2 INLadd. order under the said rules 2 or 3 of 62 ; Drury v. ]\Ifdins, 6 Ves. 328 ; this order, it may be made after Lord Grey de "Wilton v. Saxon, 6 notice to the defendant at any time Ves. 106 ; Kimpton v. Eve, 2 V. & after the issue of the writ of sum- B. 349. mons, and if it be by any other (t) Earl of Bathurst v. Burden, 2 I)arty, then on notice to the ]ilain- Bro. C. C. 64. tiff, and at any time after ajipear- (n) Kimpton r. Eve, 2 V. & B. aiice by the party making the 352 ; Pratt v. Brett, 2 Madd. 62 ; application." Fleming v. Snook, 5 Beav. 250. (v) Drury v. IMolins, 6 Ves. 328, KEMEDIKS FOU NOX-lU'.rAIU AND AVASTE. 1 85 upon the ground of waste, without any aflidavit tliat it was j^ua p 11. § .. ancient meadow (w). The Court cannot undertake to direct how the country should be cultivated (.c), and will only interfere to prevent some particular and permanent injury. The Court will not grant an injunction against a tenant for havin"- done an act of waste for wliich merely nominal damages would be given, where it appears that lie has not the least intention to commit further waste (i/). The Court Avill restrain a tenant from committing acts in the nature of waste against the wish of the landlord, even if they be to the landlord's advantage {:), but not if the land- lord stand by at first and see the act done and approve of it (a). A mortgagor may have an injunction to stay waste against a mortgagee for cutting down timber, and not applying the proceeds of the sale in sinking the principal and interest ; and .'^0 likewise may a mortgagee where a mortgagor commits waste (6). A tenant in common may have an injunction to restiain his co-tenant from committing destructive waste (c) ; but not from farming contrary to the custom of the country, because the relation of landlord and tenant does not exist between them (c/). A covenant to repair and leave in good condition will not prevent the landlord from claiming an injunction {e), nor will a right of re-entry {/). It was held that in order to obtain an injunction, some actual waste, or some act showing an intention to commit actual waste, must appear by affidavit (g), as sending a sur- veyor out to maik trees, or threatening or insisting upon the (w) Lord Grey de AVilton r. Saxon, (b) Farrant v. Lovel, 3 Atk. 723. 6 Ves. 106. (c) Arthur v. Lamb, 2 D. & S. (x) I Musgrave v. Horner, 31 L. 428. T. N.S. 632; Dunn v. Bryan, 7 Ir. (t/) Bailey v. Hobson, L. K. 5 K. V-q. 143. Cb. 180, 39 L. J. Cb. 270. {y) Doran v. Carroll, 11 Ir. Ch. {e) Mayor of London v. Hedger, R. 379- ^8 Ves. 355. (2) Smith V. Carter, 18 Beav. 78. (/) Barker 1: Wbyte, i H. & 31. (a) See Brydyes v. Killiourne, 167, 32 L. J. Cb. 520. cited in Jackson v. Cator, 5 Ves. {y) Amos on Fixtures, 284 (2d 688. edit.) CHAP II. 5 I. 1 86 CONTINUATIOX OF TENANCY. light to commit waste (//); but now as above stated (i), it is not necessary to sliow actual waste, though the Court would still require to be satisfied that some injury was really apprehended, and it would not be sufficient to say that the injunction would do the defendant no harm [j). "Where formerly a lease was made " without impeaoliment of waste," the tenant was not restrained from cutting timber, ploughing pasture land, opening mines, itc. (/■), but he was restrained from pulling down houses, defacing scats, or cut- ting down ornamental or sheltering timber {/), and now he has no right to c(mimit such waste unless an intention to confer such a right is clearly expressed in the instrument creating the estate (?«). (h) Jackson v. Cator, 5 Ves. Garth v. Cotton, Id. 756 ; Cliam- 688 ; Gibson v. Smith, 2 Atk. 182, berlayne v. Duniorier, i Bio. C. C. Kaniard, 491, 497 ; Tipjiing v. Eck- 166, 3 Id. 549 ; Marquis of Down- ersley, 2 K. & J. 264. sliire v. Lady Sandys, 6 Ves. 107 ; {i) Ante, p. 183. Ford v. Tynte, 31 L. J. Ch. 177. (./) Dunn ?'. Bryan, s?/;)rrt. As to "ornamental" timber, see (k) Com. Dig. tit. Chancery, (D) Williams v. M'Naniara, 8 Ves. 70; II. and C'Dffin v. Cofiin, Jacob. 70. (0 Williams v. Day, 2 Cas. Ch. (m) See Jud. Act, 1873, 8. 25 (z). 32; Packington's case, 3 Atk. 215; ( i87 ) DIVISION //.—Duties of Landlord. As we have seen, tlie duties of the tenant are chiefly — first, ti) pay rent ; and, secondly, to refrain from committing waste, or damaging tlie property by neglect. Upon the other hand, the duties of the Landlord are — first, to give possession during the term, and to enable his tenant peaceably and quietly to enjoy the property without disturbance ; secondly, in certain cases to irrant a lease ; thirdly, in certain cases to repair the premises ; and fourthly, duties with respect to game. CHAPTER I. DUTY TO GIVE UNDISTURBED POSSESSION. The subject of quiet enjoyment is treated of ante, pp. 93-102, Possession ana as far as relates to covenants, whether implied or expressed, ^"^1''""''''^' as well as to breaches of such covenants. With respect to the duty to give possession, it only remains to be said, that in Messent v. Eeynolds {a), it was doubted whether a contract for quiet enjoyment could be implied from a mere agreement to let ; but in Coe v. Clay it was held that lie wlio lets agrees to give pos.session, and not merely to give a chance of a lawsuit, so that the lessees may recover damages for a breach of such agreement, and is not left to a remedy by ejectment [h). SECTION I. HOW ENFORCED. For the breach of covenants for quiet enjoyment, where Rcmfdicsfordis- the lease was under seal, an action of covenant would lie (f). (a) 3 C. B. 194. Finze, 19 C. B. N.S. 96, L. R. i C. (6) 5Bing.44o; Jinks r. Edwards. T. 441, 34 L. J. C. P. 201,35^1.141. II Ex. 775. .See Hiiwkes r. Orton, (i) Dawson v. Dyer, 5 B. & Ad, 5 A. & E. 367 ; and see Locke v. 584. 1 88 KEMEDIES FOR NOX-KErAIR AND WASTE. ' "^^1_L^ '' ^^ ^^^^ demise w.as not under seal, and there was an express agreement for qniet enjoyment, the tenant upon breach might bring assiniipsit ((/) or case (e). In cases of implied contract of indemnity against distress, the proper form of remedy is an action of tort (/'). With respect to the damages for a breach of a covenant for quiet enj\)yment, where the lessor had not power to grant the lease, but the tenant obtained a fresli lease of less value from the person having power, it was held that the tenant was entitled to be indemnified for his loss by breach of the cove- nant, and therefore, in this case, to the difference in value of the void lease and of the valid lease (y). The tenant may also have a remedy by injunction (A). The Court will restrain a landlord from cutting down orna- mental trees which he has allowed the tenant to plant (t), or ■which he has impliedly assured to the tenant (j) ; so the tenant may restrain the landlord from committing a nuisance (k), obstructing lights (1), or a sea view, contrary to agree- ment (?»), and in many other cases. So also the Court will grant an injunction to restrain pro- ceedings in ejectment in certain cases (»). (d) Grangers. Collins, 6 M. kW. (/) Fox v. Purcell, 3 Sni. & Giff. 458 ; Hancock v. Caffyn, 8 Biiig. 242. 358. {m) Piggott V. Strattod, i De Gex (f) Burnet r. Lynch, 8 D. & R. F. & J. 33, 44. 368 ; Hancock v. Caffyn, supra. (?i) Neave r. Avery. 16 C. B. 328 ; (/) Hancock?'. Ca^yn, supra. Job v. Banister, 2 Kay & J. 374; (y) Locke v. Furze, ante, p. 187, Pain v. Coombs, 3 Sm. & Giff. 449 ; note (b). See Rolph r. Crouch, L. i De Gex. k J. 34 ; Lilley i'. Leigh, R. 3 Ex. 44, 37 L. J. Ex. 8. 3 De Gex. & J. 204 ; Morris i'. (h) As to Injunction, see ante, Khydydefed Coll. Co., 3 H. & N. p. 184. 885 ; 28 L. J. Ex. 119. In cases of (/) Jackson v. Cator, 5 Ve.s. 688. ejectment for non-payment of rent (j) Nicholson v. Rose, 4 De Gex proceedings may summarily be k J. 10. stayed, see 15 & 16 Vict. c. 76, (k-) Tipping V. Eckersley, 2 Kay s. 212, 23 & 24 Vict. c. 126 (C. L. P. & J. 264; Lingwood v. Stowmarket A.), s. i, post, pp. 203, 204. Part Co. L. R. I Eq. 77, III. ( iS9) CHAPTER II. DUTY TO GRANT A LEASE. Somewhat akin to the right of the tenant to liave the peace- Elgbt to a u-aie able enjoyment of his property, is Lis riylit to compel his landlord, under certain circumstances, to grant him a lease. Thus, if the landlord covenant or agree in \vriting to grant a lease, the Court of Chancery will decree specific performance of the agreeuient (a). So also where the tenant is in possession under a mere oral agreement for a lease, and has been permitted by the landlord to expend money on the faith of a contract, in reasonable pursuance of such contract, he will be entitled to have a lease granted to him {h) ; btit if the expenditure be merely such as is incidental to his oral agreement — as, for instance, in the ordinary course of husbandry — he would not be entitled to have a lease granted to him (c). There must be a part performance of the oral contract sufficient to take it out of the Statute of Frauds. It has been said that mere possession is not a sullicient part perform- (n) Martin v. Pycroft, 2 De G. RU. & G. 798 ; Kaiikiu r. Lay, 29 L. J. Ch. 734 ; rarker v. Taswell, 27 ib. 8i2 ; !Micldletoii v. Greenwood, 2 De G. J. &. S. 142. Tliis is witliin tlie exclusive jurisdiction of tlie Court of Chancery, see Jud. Act, 1873. s. 34. (b) Powell V. Thomas, 6 Hare, 304 ; Pain v. Coombs, 3 Sin. & G. 464 ; Nunn r. Fabian, L. K. i Ch. 35 ; Farrall v. Daveni'ort, 3 Giff. 363 ; "Wills V. ytradling, 3 Ves. 378 ; Stockley r. Stockley, i V. & li. 23 ; Sutherland v. Jirig<;s, i Hare, 26 ; Surconibe v. Pinniger, 3 De G. M. k G. 571 ; Price v. Salus- Lury, 32 Beav. 446. And see Frame Z'. Dawson, 14 Ves. 380 ; Lindsay v. Iiinch, 2 Sell, k Lef. i. Where letters had jiassed between the parties wliich merely raised ground for believing there was an agreement for a lease but did not show the contract itself, and the tenant who had expended money could not therefore by reason of the Statute of Frauds recover damages for not having a lease granted, it was held, nevtilheless, tiiat he might recover for work done at tiie hmdloid's recjuest. I'ullbrook v. Lawes, 45 L J. Q. B. 178 L. II. I Q. B. D, 284. ((•) Brennan r. Bolton. 2 Dru. & MV. 349 ; Faulkner r. Llewellyn, 31 L. J. Ch. 549 ; Gunter v. Halsey Ambl. 586; ex purU Hooper, 19 Ves. 479. 1 90 DUTY TO r.R.VXT A LEASE. CHAT. II. ■■ 1. mice ((/), but it would rather seem that it is (e). So also where an increased rent was paid in pursuance of an oral agreement, it was held that this constituted a jiart jier- formance (/). Possession after the expiration of a lease has been held a sufficient part performance of an oral agreement for renewal (f/), but it seems doubtful whether, where posses- sion is first taken and then a parol agreement is made, the continuance in possession is a part performance (A). Even where possession is obtained witliout authority, yet an agree- ment will be decreed to be specifically performed (i). Where there was an understanding between the landlord and tenant that, so long as the tenant was a good customer in using a canal, he should have the use of the waste water for his works, it was held that he was not entitled to a decree for specific performance of such understanding ; but if the water was essential, or anything like essential, to the works, he might have been entitled to a decree (./). SECTION I. now ENFORCED. The duty which the landlord owes to the tenant to grant him a lease will be enforced by specific performance (/.•). It is no answer to an action for not granting a lease that the intended lessee had not prepared the lease and tendered it for execution to the intended lessor (/). {(/) "Woodf. L. k T. p. 944. {Ii) Pain v. Coombs, supra. (c) Pain V. Coombs, 3 Sm. k Giff. (/) Hliillibeer v. Jarvis, 8 De Gex. 449, I De Gex. & J. 34 ; Miller r. M. k G. 79. Fiiilay, 5 L. T. N.S. 510; Coles t'. {j) Bankaik v. Teiinant, L. K. Pilkington, L. 11. 19 Eq. 174. 10 Ivj. 141, 39 L. J. Cli. 809. (/) Nunii v. Fabian, L. R. i Cli. (A) See the cases cited, atite, p. 35. 35 L- J- Ch. 140. 189, notes (a), (b). (;/) DoweU v. Dew, i Y. & C. cc. {I) Cantley v. Powell, 10 Ir. C. L. 345- 200 Q. B. ( 191 ) CHAI'TER Iir. DUTY TO REPAIR. TiTE duty to repair necessarily arises out of the relation exist- ing between the parties, but such duty devolves, as we have seen, upon the tenant, and the landlord is not bound to repair, unless he expressly agrees or covenants to do so {it) ; but if lie does covenant to repair, the tenant may sue him for ji breach of such covenant. If the landlord covenants to put the premises in repair and the tenant to keep them in repair, the putting of the premises in repair by the landlord is a con- dition precedent by the tenant's liability (i). There can be only one breach of this covenant, but where the covenant is to maintain in repair, there may be a continuing breach (f). A landlord is not bound to repair the fence which sepa- rates land which he holds from land which he has leased (d). Nor where he has covenanted to keep in repair the " main walls, main timbers and roofs," is he bound to repair the main timbers and roofs without notice ; although as to out- side walls, it seems he must repair them without notice (c). A landlord who had covenanted to keep the premises in good and substantial repair was held not to be bound to cleanse a piece of ornamental water upon the premises (/). SECTION I. HOW ENFORCED. The duty of the landlord to repair may be enforced in the same manner as the duty of the tenant to repair is enforced by his landlord, viz., by action {g). See ante, p. iSo. (a) Golt V. Gaudy, 2 El. & B. 845. -well & Channell, B.B. ; Martin, B. (6) Neale v. Rutclitfe, 15 Q. B. diss. See Moon v. Clark, 5 Tiiuut, 916; Cannock v. Jones, 3 Excli. 90,96; as to party-walls, see Green 233 ; Coward v. Gregory, L. R. 2 C. v. Eales, 2 Q. B. 225. P. 153, 36 L. J. C. r. I. (/) Bird V. Ehves, L. K. 3 Ex. (c) Coward v. Gregory, supra. 225, 37 L. J. Ex. 91. (d) Erskino v. Adlane, 42 L. J. (y) Coward r. Gregory, supra ; Cb. 835; L. K. 8 Cli. 756. Neale v. Katcliffe, supra; Cannock (c) Makin v. Watkinson, L. R. r. Jones, s(/7.»ra; Makiu i'. "Watkiu- 6 Ex. 25, 40 L. J. Ex. 33. jjcrBrani- son, supra. ( 192 ) CHAPTEE lY. DUTIES WITH RESPECT TO GAME. As Ave liave seen, ante, p. 6i, wliere there lias been no spe- cial arrangement made between the landlord and his tenant with respect to the game, the tenant has a right to kill the game and other wild animals upon the farm. The right of sporting is, however, frequently reserved by the landlord, wiio takes upon himself certain duties and liabilities which the tenant may compel him to perform. "Where the exclusive right of shooting is reserved the ten- ant cannot even kill rabbits (a). Where a person having a license to shoot over land does so in an unreasonable manner and at an unreasonable season, he is liable to an action by the tenant (A). The tenant can arrest trespassers in search of game whether the game belongs to him or not (r). Although damage might be done to the crops by the game, yet the tenant had no right of action, except in Scotland, where, if the game was unreasonably excessive, he had a right to an action (t/). Where a tenant had declined to take a farm because of the quantity of game, and the lessor there- u[)()n promised to keep down the game, although he would not allow the promise to be inserted in the lease, which (a) Jeffreys r. Evans, 19 C. B.N. S. was the only means of killing tlie 264 ; 34 L. J. C. P. 261 ; but he is fox. Geiiei'ally speaking, one who not liable to a conviction for so doing finds game on his own land cannot under tlie i & 2 Will. IV. c. 32, s. 30. justify pursuing it into the land of {!/) Hilton V. Green, 2 F. k. F. another, Deaiie v. Clayton, 7 Taunt, 821. A person may justify trespass 489. in following a fox with hounds over (c) i & 2 Will. IV. c. 32, s. 31 ; 9 the grounds of another if he do no Geo. IV. c. 69, s. 2 ; 25 i 26 Vict. c. more than is nec^essnry to kill the 114; 24 & 25 Vict. c. 96, s. 17. fox. Oundryr. Feltham, I T. 11. 334. { ^^"ebb v. Russell, 3 T. R. {p) Doe d. Beaden v. Pylce, 5 M. 393. There is now, however, no & S. 146 ; Pleasant v. Benson, 14 merger in law where there would East. 232 ; Torriano v. Young, 6 be none in equity. See Jud. Act, Car. & P. 8 : Pigott v. Stratton, i 1873, sect. 25, sub-sect. 4. De G. F. & J. 44, 29 L. J. Ch, i. 8. {I) 2 Roll. Rep. 472. See also the "Where a lessor accei)ts a surrender opinion of Lord Holt in Gage v. the riglits of the inuler-lessees re- Acton, I Salk. 326, and of Hobart, main, even although the lessee was C.J. in Young v. Bradfroot, Hob. ; at the time liable to forfeiture ; Gt. and the case of Jones v. Davies, 5 AY. Ry. Co. v. Smith, L. R. 2 Ch. H. & N. 777. D. 235, C. A. (m) Jones v. Davies, 5 H. & N. (q) London and Westminster Loan 766. and Discount Co. Limited r. Drake, (n) Bracebridge v. Cook, Plow. 6 C. B. N.S. 798; Saint v. Pilley, Com. 417. 44 L. J. Ex. 33, L. R. lo Ex. 137. 200 DETEKMIXATION OF TENANCY. CHAP. II. under-lease being gone, tlie rent reserved and the covenants contained in the under-lease were gone also (/•). This incon- venience was remedied by the 4 Geo. IL c. 28, s. 6 ; and now by the 8 & 9 Vict. c. 106, s. 9, if a reversion expectant on a lease is surrendered, the estate which confers, as against the tenant, the next vested right to the tenement, shall be deemed the reversion for the purpose of preserving the inci- dents to, and obligations on, the reversion. By the surrender, the lease, with all its incidents, is entirely gone, so that no action can be maintained for rent previously due, except where there is a personal covenant for its pay- ment, in which case an action may be brought on the cove- nant (s). Rent accruing at the time the surrender is made is entirely lost (t). Operation of The o|>eration of a merger was similar to that of a surren- der (^^), and was similarly remedied by the 8 ra. ( -01 ) CHAriEPt III. FORFEITURE. PAOE I. Re-entry for — 201 by whom ... 201 for iion-pai/ment of rent 203 fAOB 2. "Waiver 204 3. Disclaimer 207 I. Re-entry. A LEASE may be deterniiueJ by entry or ejectment for a for- Re-entry for. feitiire incurred by breach of an express or implied condition, but not for a mere breach of covenant without proviso for re-entry (a). If the tenant do any act unequivocally (b) in- consistent with his character as tenant (c) ; as if, being tenant for years, he make a feoffment, or give up possession to a party claiming an adverse title to the lessor ((/) ; or if he be guilty of a breach of any express condition in the lease, a for- feiture will be incurred for which the landlord may enter (e). As to forfeiture upon assigning or underletting and license, or breach of covenant to insure, see ante, Part I. c. 4, ss. 8 and 9. In general no one can re-enter for a forfeiture but the per- By whom, son legally entitled to the reversion (/). A reversioner who has parted with his reversion, either absolutely or by way of mortgage, cannot enter or maintain ejectment for a for- feiture (g). But where a termor demised his whole interest, subject to a right of re-entry on the breach of a condition, it (a) Doe d. Wilson v. Pliillips, 12 E:ist. 444 ; Goodriglitcf. "Walters 2 Bing. 13 ; Doe d. RudJ ?• Gold- v. Daviils, Oowp. 803. ing, 6 Moo. 231 ; Doe d. Kaius v. (/) Doe d. Biirney v. Adams, C. Kueller, 4 C. & P. 3 ; Doe rf. Darke & J. 232 ; Doe d. Barker r. Gold- r. Bowditch, 8 Q. B. 973. smith, 2 C. & J. 674 ; Doe d. Barber (/') See Acklaiid v. Lutley, 9 A. & v. Lawrence, 4 Taunt. 23, Litt. s. E. 879. 347, Co. Litt. 414 1> ; Moore v. Earl (c) Bac. Abr. Leases, (T) 2, Co. of riymoutli, 3 B. & Aid. 66, Litt. 215 a. {. 242, 12 East. 444, 451 ; Arnsby I'. Wood- Bull, N. P. 165, 177 ; Paradise v. ■ward, 6 13. & C. 519; lloberts v. Jane, Ale\'n, 26. Davey, 4 B. & Ad. 664 ; Baylis v. (o) Hunt v. Cope, supra ; Upton Le Gros, 4 C. B. N.S. 537, 6 Id. 552. v. Townend, 17 C. B. 30 ; Heuder- ( ;) Doe d. Bridger v. Whitehead, sim v. Clears, 28 L. J. Q. B. 305. 8 A. & E. 571 ; Toleman v. Port- There must, it seems, be an actual bury, L. R. 5 Q. B. Ex. Ch. 288, 39 eviction, not a mere assertion of L. J. Q. B. 136. right, and attornment of the tenant, (k) Jones v. Carter, 15 M. k W. for this might lead to collusion. 718 ; Upton V. Townend, 17 C B. Delaney v. Fox, 2 C. B. N.S. 768. 30, as, for instance, by issuing a (p) Morrison v. Chadwick, 7 C. writ in ejectment. Birch r. Wright, B. 266. I T. R. 378; Bridges v. Smyth, 5 (q) Newton r. Allin, i Q. B. 518, Bing. 410 ; Burn v. Pheljis, I Stark and if the demise is by parol a R. 94. tenant will be liable for use and (/) Cuthbertson v. Irving, 6 H. & occupation of the residue retained N. 135 : 28 L. J. Ex. 306. by him. Stokes v. Cooper, 3 Camp. {in) Morrison v. Chadwick, 7 C. 514 n. FORFEITURE. 203 If the tenant continues in possession after tlio eviction lie chat hi is a wrong-doer, and is liable for mesne profits, but not for rent as such (/•). The effect of re-entry for a forfeiture is to destroy the rights of the under-lessees (s). "Where there is a condition of re-entry upon non-payment For nnn-pnymcnt of the rent, the landlord must make a formal demand, unless there are express words in the lease or agreement dispensing with such demand [t), or the case falls within 15 it 16 Vict. c. 76, s. 210 (m). I. Such demand must be made by the landlord or his agent duly authorised (c). 2. It must be made precisely on the day when the rent is due and payable. Thus where tlae proviso is that if the rent shall be behind and unpaid by the space of thirty days after the day of payment, it shall be lawful for the lessor to re-enter, the demand must be made on the thirtieth day (?<•). 3. The demand must be made a convenient time before sunset (x). 4. It must be made at the most notorious place on the land (y) ; or if a place is appointed for the payment of the rent, it must be made there [z). 5. It must be of the p7-ecise sum then pay- able (rt). By the 15 tfe 16 Vict. c. 76, s. 210 (h), a formal demand of the rent is unnecessary when one half-year's rent is in arrear, and the landlord hath by law right to re-enter for the (>•) Oldershaw v. Holt, 12 A. & E. 590- (s) Great 'Western Ry. Co. v. Smith, L. E. 3 Ch. Div. 235, C. A. ; Ariisby v. "Wooilwanl, 6B. & C. 519. (t) See Doe ps, 37 L. J. Q. objection that it relates to part R. 198 ; L. R. 3 Q. B. 567. See only of the holding, but the tenant also Doe d. Lyster v Godwin, 2 Q. mav within twenty-eight days ac- B. 143. cept it as a notice to quit the entire (w) Doe d. Matthewsonf. Wright- holding, man. 4 Esp. 5. (?•) Doe d. Bailey v. Foster, 3 C. {x) Doe v. Spiller, 6 Esp. 70. B. 215. (.'/) Prince v. Evans, 29 L. T. («) Doe d. Lord Huutingtower v. N.S. 834. NOTICE TO QUIT. 2 I I A notice to quit need not be attested, and it may be proved ciiai*. iv. by an examined copy or duplicate without notice to produce the original {:). 2. When to be Given. In general, a tenancy may be determined by half a year's wiipn to be notice expiring at the end of the first or any subsequent K'*'^"- year (a), and in the case of a yearly tenancy uncontrolled by custom or special stipulation, such a notice is necessary (/>). By the Agricultural Holdings Act, 1875 (c) in tenancies from year to year where a half year's notice expiring witli a year of tenancy is, by law, necessary and sufficient, a year's notice must be given, except in cases of bankruptcy (d). This must be taken, however, subject to the general provisions of the Act (e). The parties may, however, stipulate for a longer or shorter notice, and in that case the notice stipidated for must be given ( /), or, under certain circumstances, they may agree that the tenant may quit without giving notice (//). But a stipuhition depriving either party of the right of giving notice is bad (h). Where a " six months' " notice is to be given, it was held by Wood, V.C., that a six lunar months' notice was sufficient (/). Where the tenancy created is for two or three years at least it cannot be determined by notice to quit before the expiration of that term (j). When a lease is determinable upon a certain event, or at a particular period, no notice to quit is necessary', because both parties are equally apprised of the determination of the term (k). So where a demise is for one year (/), for a num- ber of years (m), till a particular day (n), during joint {z) Doe d. Fleming v. Somerton, (//) Doe d. "Warner v. Browne, 8 7 Q. B. 58. East. 165. (a) Doe ), or during. service (7), no notice is necessary. So where a tenant holds under a mere agreement for a lease for a term, no notice to cpiit is necessary at the end of the term (r). With respect to lodgings, &c., if the tenancy be for a quarter, month, or week, no notice to quit is necessary ; but if from quarter to quarter, month to month, week to week, then the corresponding notice must be given. If there is no custom or stipulation as to the notice, some reasonable notice must be given, even in tlie case of a weekly tenancy (a). No notice is necessary in tiie case of a mere tenancy at will (t), but some demand of possession or entry must be made on or before ejectment brought («). A tenant on sufferance, or an intruder, is not even entitled to a demand of possession (0). And so also in the case of a mortgagor who has been allowed to remain in possession (w). Yearly tenants of a mortgagor, who were tenants before the mortgage, ate entitled to notice ; but those who became tenants after the mortgage are not even entitled to a demand of possession (x). Where the plaintiff cLiims the lands by a title paramount to the landlord of the defendant, no notice to the defendant is necessary {>/). A disclaimer operates as a waiver of notice (z). 3. By Whom and to Whom Given. r.v wiiom and to A notice to quit shoidd be given by a landlord to his wiiom giveu. imniediate tenant, and not to a mere under-tenant (a); and (o) Doe d. Bromfield v. Smith, {t) Doe d. Tomes ?'. Chaniljer- 6 East. 530. laiiie, 5 M. & "\V. 14 ; Doe d. Jones (;)) Doe d. "Waithnian v. Miles, v. Jones, lo B. & C. 718. I Stark. 181, (w) Gooiltitle (/. Galloway t;. Her- {(/) Doe d. Hughes v. Corbett, bert, 4 T. K. 680 ; Denn d. Brune 9 C. & P. 494. V. Kawlings, 10 East. 261 ; Doe c^. {)•) Doe(/. Tiltz'. Stratton,4Bing. Jacobs r. Phillips, 10 Q. B. 130. 446; Doe d. Davenish r. Motfatt, {r) Doe . 25 ; Papillon v. Brunton, 5 H. & B. & Ad. 155 ; Doe d. Kindersley v. N. 518, 29 L. J. Ex. 265; Doe d. Hughes, 7 M. k W. 139. Mann r. Walters, 10 B. & C. 626; {j) Catting v. Derl)y, 2 "Wm. Bl. Doe (/. Lyster r. Godwin, 2 Q. 15. 1075 ; Doe (/. Robertson ?•. Gardiner, 143 ; even when signed in his own 12 C. B. 323. name. Erme v. Armstrong, 6 Ir. {k) Stackpoole v. Parkinson, 8 Ir. R. C. L. 279. R. C. L. 561. (c) Wilkinson ?•. Collej', 5 Burr. {I) Smith v. Clarke, 9 Dowl. 202 ; 2696; Doe (/. Marsack r. Read, 12 Jones d. (irittitlis c. Marsli, 4 T. R. East 57; Doe d. Earl Manvers v. 464; Roe '/. Blair f. Street, 2 A. & Mizem, 2 Moo. k R. 56. E. 329 ; Doe d. Neville v. Dunbar, (/) Doe d. Mann v. Walters, M. & M. 10. Sees. 41 as to service supra, pe?" Parke, J. under Ag. Hold. Act in Appendix. 2 14 DETERMINATION OF TENANCY. ^'"j1!U^ tenant upon a person whose duty it would be to deliver tlie notice to the tenant, for such person is the agent to receive the notice, and the presuin])tion tlien arises that it did in fact reach the tenant (?«). Notice to quit was given to the widow (if a tenant, wliose son subsequently took out letters of ad- ministration, and brought ejectment against a new tenant let in upon expiration of the notice, it was held that tlie service of the notice to quit njyon the widow was sufficient, and therefore the son could not recover possession (it). It seems to have been doubted in one case whether service on the wife of the tenant, but not on the premises, was sufficiejit (o). Where a notice to quit was placed under the door of the tenant's house, and his wife proved that the notice was received by the tenant in due time, it was held a sufficient service (p). So a notice to quit may be sent by post ; and where a notice to quit at Michaelmas was sent through the post by the tenant on the morning of the 25th of March, to the place of business of the landlord's agent, and the jury found that the letter was delivered that evening during the hours of business (7), although the acrent did not find it till the following morning, it was held sufficient (?•). 5. Waiver of Notice. Waiverot Notice. A notice to quit puts an end to the tenancy by the agreement of the parties, who can also agree to waive the notice, and so to create a new tenancy (s). Where the land- lord has given notice, but the tenant holds over, the landlord cannot waive the notice, and distrain for rent subsequently accruing; for there is no "agreed rent" to distrain for until a new tenancy arises (t). A waiver of notice will be presumed from a receipt of rent as such, subsequently to the expiration of the notice («) ; but a mere demand is a question of inten- tion, which must be left to the jury (v). So a second notice {m) Tanham v. Nicholson, L. E., (r/) Pc?- Eramwell, B. 5 H. L. C. 561 ; and per Lord "West- (?•) Papillon v. Brunton, 5 H. & burj', it would seem it ought to be M. 518, 29 L. J. Ex. 265. conclusive evidence, otherwise the (s) Blythv. Dennet, 13 C. B. 180; landlord's right would be controlled Dendy r. Nichol, 4 C. B. N.S. 381 ; by something to which he was an Tayleur v. "Wildin, 37L. J. p]x. 173. utter stranger. The above case was (<) Jenner i'. Clegg, i Moo. & K. one of service upon a daughter who 213 ; Alford v. Vickcry, i Car. & also acted as servant. M. 280. (n) Sweeny v. Sweeny, 10 Jr. 11. {a) Cioodright d. Charter ?'.Cord- C. L. 375. Exch. went, 6 T. R. 219 ; Croft v. Lundey, {u) Koe d. Blair v. Street, 2 A. & 5 K. & B. 648, 6 H. L. Cas. 672 ; E. 329. Blyth V. Dennet, 13 C. B. i8o. (p) Alford V. Vickory, Car. k M. {v) Blyth v. Deuuet, supra. 280. NOTICE TO QUIT. 2 I 5 ■will operate as a waiver of the first (»•), unless it be clear tliat c nw. i v. it is not intended to have that etiect (x). A good {larol notice, however, will not be waived by a subsequent insuffi- cient notice in writing {>/). As is stated above, the parties may mutually agree to waive a notice to quit which lias been given, but the tenant will not be allowed to take advantage of a mere indulgence on the i)art of a landlord, and treat it as a waiver (-'). A disclaimer operates as a waiver of notice (a). («•) Doe d. BrJerley z: Palmei-, (r) Wliitexicret/. IJonlt r.Symonds. i6 East. 53. 10 East. 13, 17 ; Doe d. Lonl (or) Doe d. "Williams v. Hum- Macartney r. Crick, 5 Es)>. 196; phreys, 2 East. 237 ; Doe d. God- Doe d. Maniuis of Hertford v. sell V. Inglis, 3 T.iunt. 54 ; Messen- Hunt, i M. & W. 690. ger i: Armstrong, i T. 11. 53. (n) See ante, 208. (i/) Doe d. Lord ]^Iucai-tney v. Crick, 5 Esp. 196, ( 2i6) CHAPTEE V. HOLDING OVER. PAGE PiOE I. Small Tenements Act ... 2l8 3. Double Value ... 224 2. Desertion bt Tenant ... 222 4. Double Rent ... 226 Upon the determination of the tenancy, the landlord i.s entitled to receive the full and complete p()S.session from hi.s tenant, who must therefore deliver up to his landlord the peaceable and quiet possession of the demised premises, together with all fixtures (a), except what he is entitled to remove ; and also all growing crop.*, unless there be an agree- ment or custom (Ij) to the contrary (c), as well as encroach- ments which are presumed to be made for the benefit of the tenant during the term and of the landlord upon its deter- mination {(.V). If the tenant holds over after the expiration of the notice to quit, whereby the landlord is i)revented from delivering possession to a party to whom he had agreed to let the premises, the landlord can recover the reasonable damages and costs that he has sustained (e). Where it is impossible for the tenant to give up possession, by reason of the ill-will or obstinacy of his under-tenant, to whom he has let the Avhole or part of the premise.s, the original tenant will still be liable (/). The landlord, however, may discharge him by accepting the under-tenant as his tenant. AVhere the tenant holds over, the landlord may enter on the demised premises l^eaceably and without action, if he can succeed in doing (fi) See Fixtures, p. 238. (6) See Emblements, p. 228. (c) Caldecott v. Smythies, 7 C. & P. 808 ; Hendersou v. Squire, L. K. 4 Q. B. 170. ('/) Doe d Llovd r. Jones, 15 M. & W. 580 ; Doe (V. Croft r. Tili)ury; 14 C. B. 304 ; Earl of Lisbourne v. Davis, L. R. I C. P. 193 ; Wliitniore r. Humphries, L. R. 7 C. P. i ; 41 L. J. C. P. 43 ; Druiiimond v. Sant, 41 L. J. Q. B. 21. (f ) Bramley v. Chesterton, 2 C B. X.S. 592, 27 L. J. C. P. 23; Hen- derson V. Squire, supra. (/) Harding r. Crethorn, i Esp. 57 ; lbV)s ;'. Richardson, 9 A. & E. 849 ; Waring r. King, 8 M. & W. 571 ; Henderson v. Squire, S(y>rrt. See also Cliristy v. Tancred, 7 M. & W. 127, 9 M. & W. 438 ; Tancred r. Christy, 12 M. & W. 316; Draper V. Crofts, 15 M. & W. 166. nOLDING OVER. 21/ so ((7) ; but if lie break in forcibly, so as to ondangrra ])roar]i chap. v. of the peace, he may be liable to the risk of an iiHlictinciit (//). It is safer, therefore, to proceed by action for the recovery of the premises. Claims for mesne profits, rent and damages, may all be joined now in an action for recovery of land, and by leave of the court or judge any other claims may be joined (/). If the tenant holds over after notice to quit, and is ]ter- mitted to remain in possession, it is a question for the jury whether a new tenancy from year to year exists {J). Formerly an action of ejectment was commenced by a special form of writ of ejectment under the 169th sect, of tlie C L. P. Act, 1852, but now (/,•) the writ will be in the usual form, the indorsement only showing the nature of the claim. Under the former procedure the defendant had sixteen days for appearance ; but now as in other actions he has only eight days. The right of a landlord to aj^pear and defend is preserved (/), and he may limit his defence to part of the property claimed (?«). A defendant in ])ossession need not now («) in general plead his title unless his defence depends upon equitable grounds. In case no appearance is entered, or is only entered as to part, tiie plaintiff may sign judgment accordingly (o), and where he joins a claim for mesne profits, arrears of rent, or damages, he may enter judgment for the land and proceed in the usual manner as to the rest of his claim (p). He may also enter judgment for want of a plea, &c. (q), and if he has joined other claims he may, if the defendant, or one of the defendants, (g) Taylor v. Cole, i Smith's L. L. 363; Caulfield r. F.irr, 7 Ir. R. C. 5th edit., III. C. L. 469; and see the cases ante, (h) K. V. Smyth, i M. & R. 155, p. 194, note (a), judgment of Lord Tenterden. See (k) Jud. Act, 1875, Order ii. Newton r. Harhuid, i M. k Or. 664, R. 3. In case of vacant jxissession where it was lield that the landlord service of the writ may he made hy jnay be liable to an action at tlie jiosting a copy on some con.spiciioiis suit of the tenant, but that point is i)urt of the property. Order ix. R. not decided ; Harvey v. IJridges, 14 8. As to service out of tlie juris- M. &'\V. 437; Wright r. Burro'.ighes, diction, see Order xi. R. i, and see 3 C. B. 699; Davi.son r. Wilson, 11 Rules June 1876. Q. B. 890 ; Davis r. Burrell, 10 C. (/) Onler xii. Rules 18-22. B. 825. (m) Rule 21. (i) Jud. Act, 1875, Order xvii., (») Order xix. Rule 15. Rule 2, and see Forms in Appen- (o) Order xiii. Rule 7. dix. As to judgment, see Wilson's (;)) Order xiii. Rule 8. Jud. Acts, 188, 229, 201. (7) Order xxix. Rule 7, (j) Vance v. Vance, 5 Ir. R. C. 2l8 PETEKMIXATIOX OF TENANCY, CHAP V. does not deliver a defence, enter jiulgnient against such defendant, and then proceed as in ordinary actions (?•). Judgment may be enforced by a writ of possession (.s-), which can be sued on upon filing an afl^idavit showing due .service of the judgment and that the same has not been obeyed {t). I. Small Tenements Act. In order to save the landlords of small tenements the ex- pense and dehiy of a proceeding by ejectment to recover possession, where a tenant refused to quit on the determina- tion of his interest in the premises, the statute i & 2 Vict. c. 74, s. I, enacted, that "When and so soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will, or for any term not ex- ceeding seven years, either without being liable to the pay- ment of any rent, or at a rent not exceeding the rate of ,£20 a year, and upon which no fine shall have been reserved or made payable, shall have ended, or shall have been duly determined by a legal notice to quit or otherwise, and such tenant or (if such tenant do not actually occupy the premises, or only occupy a part thereof) any person by whom the same, or any part thereof, shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord of the said premises, or his agent, to cause the per- son so neglecting or refusing to quit and deliver up possession to be served (in the manner hereinafter mentioned) with a written notice in the form set forth in the schedule in this Act, signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed in this Act ; and if the tenant or occupier shall not thereupon appear at the time and place appointed, and show to the satisfaction of the justices hereinafter mentioned reasonable cause why posses- sion should not be given under the provisions of this Act, and. shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in pos- session, to the said landlord or his agent, it shall be lawful for such landlord or agent to give to such justices proof of the holding, and of the end or other determination of the (?•) Order xxix. Rule 8. der xlviii. Rule i, for form of writ («) Order xlii. Rule 3 ; and Or- see A]>pendix. (0 Order xlviii. Rule 2. HOLDING OVEK. 219 tenancy, witli the time and manner thereof; and wliere the c'Iap v. title of tlie landlord has accrued since the letting of the pre- mises, the right by which he claims the possession ; and ujxiu proof of service of the notice and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the district, division, or place within •which the said premises, or any part tiiereof, shall be situate, in petty sessions assembled, or any two of them, to issue a Avarraut under their hands and seals to the constables and peace-officers of tlie district («), division, or place within which the said premises, or any part thereof, shall be situate, commanding them within a period to be therein named, not less than twenty-one nor more than thirty clear days from the date of such warrant, to enter (by force if need- ful) into the premises, and give possession of the same to such landlord or agent : provided always that entry upon any such Avarrant shall not be made on a Sunday, Good Friday, or Christmas Day, or at any time except between the hours of nine in the morning and four in the afternoon ; provided also, that nothing herein contained shall be deemed to protect any person on whose application and to whom any such warrant shall be granted, from any actioji which may be brought against him by any such tenant or occupier, for or in respect of such entry and taking possession, where such person had not, at the time of granting the same, lawful right to the possession of the same premises : provided also, that nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant by the custom of the country or otherwise." A like remedy is given to the valuer under the Inclosure Acts in respect of encroachments, and recent inclosures of land subject to the provisions of those Acts (v). By " The Charitable Trusts Act, 1S60" (iv), a like remedy is given to the trustees against a schoolmaster wrongfully holding over. By the 59 Geo. III. c. 12, sp. 24, 25, churchwardens and overseers of hereditaments belonging to the parish (x) can, in the mode therein provided, obtain a warrant from the justices for the possession of hereditaments belonging to the parish (m) Jones V. Chapman, 14 M. & (iv) 23 & 24 Vict. c. 136, s. 13. W. 124. As to land vested in the Secretary (v) 15 & 16 Vict. c. 79, s. 13; of State for War, see 22 Vict. c. Chilcote V. Youlden, 29 L. J. M. (J. 12, a. 5. 197. (x) See ante, Part i, c. i, p. 15. 220 DETEROTXATIOX OF TENAXCY. (11 AT. \. -whicli are ^Toiigfully lield over (//), and tlie justices may iiuiuire into the matter although a chiina of title arises (r). By 19 tt 20 Yict. c. 108, s. 50 (a), ''"When tlie term and interest of the tenant of any corporeal hereditament, where neither the value of the premises nor (/>) the rent payable in respect thereof shall have exceeded £50 by the year, and upon which no fine or premium shall have been paid, shall liave expired or shall have been determined, either by the landlord or the tenant by a legal notice to quit, and such tenant, or any p)ersou holding or claiming by, through, or under iiim, shall neglect or refuse to deliver up possession accordingl}^, the landlord may enter a plaint, at his option, either against such tenant or against such person so neglect- ing or refusing, in the County Court of the district in which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person neglect- ing or refusing ; and if the defendant shall not, at the time named in the summons, show good cause to the contrary, then, on the proof of his still neglecting or refusing to deliver up the possession of the premises, and of the yearly value and rent of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons on the defendant thereto, the judge may order that possession of the premises mentioned in the plaint be given by the defendant (c) to the plaintiff, either forthwith or on or before such day as the judge shall think fit to name ; and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall, at the instance of the plaintiff, issue a warrant authorising and requiring the high bailiflf of the Court to give possession of such premises to the plaintiff." The relation of landlord and tenant must exist to enable ()/) As to cottage allotments, sea {h) Tlie word " or " was used in 2 & 3 Will. IV. c. 42, ss. 5, II. sect. 122 of 9 & 10 Vict. c. 95. See (z) Ex parte Vaughan, 7 B. h S. supra, note (a). 902, L. R. 2 Q. B. 114, 36 L. J. ]\I. (c) An order of possession against C. 17. a tenant is not conclusive against (a) This section is an amendment another person holding through him of 9 & 10 Vict. c. 95, g. 122. Tlie and in jiossession, whf) may bring cases on tlie latter section are In re trespass if the landlord had not in Earl of Harrington v. Ramsay, 8 fact the right to possession. Hud- Ex. 879 ; Fearon v. Norvall, 5 D. & son v. AValker. 41 L. J. Ex. 51 ; Per L. 445 ; Crowley v. Vitty, 7 Ex. Channell k Pigot, B. B. Martin B. 319. diss. HOLDING OVER. 221 the Court to have jiuisdiction. Whore plaintiff claimed as cn.vr. v. a iiioitgageo, and the defendant, who held under a demise from the inortgaijor subsequent to the mortgage, had never attorned to the iilaintilf, it was held tliat the statute did not apply ((/). AVhere defendant was let into possession of premises under an agreement to purchase, and he agreed to pay 8s. a week rent, to be afterwards iled acted from the pur- chase-money, and he had paid, under this agreement, sums of money which, with a set-off, equalled the amount of the pur- chase money, it was held that the relation of landlord and tenant did not exist (e). If a bona Jul e claim of title is set up and proved to exist, the County Court judge has no jurisdiction to decide the case (/) except by the written consent of the parties or their attorneys (y). But the tenant is estopped from denying his haiidlord's title (h). Under sect. 51, plaintiff may add a claim for rent or mesne profits as against his tenant down to the day of leaving, so that his claim does not exceed ^£50 (/). By 19 ct 20 Vict. c. loS, s. 52, "When the rent of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect thereof exceeds £50 by the year, shall for one half year be in arrear, and the land- lord shall have right by law to re-enter for the non-payment thereof, he may, without any formal demand or re-entry, enter a plaint in the County Court of the district in which the premises lie iov tlie recovery of the premises ; and there- upon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand or re-entry ; and if the tenant shall, five clear days before the return-day of such summons, pay into Court all the rent in arrear, and costs, the said action shall cease ; but if he shall not make such payment, and shall not at the time named in the summons show good cause why the premises should not be recovered, then, on proof of the yearly value and rent of tlie premises, and of the fact that one half-year's rent was in arrear before the ((/) Jones r. Owen, 5 D. & L. 669. {h) See Leases by E.stojipel, ante, (c) Banks V. Kebbeck, 2 L. M. &c p. iii. In re Emery v. liarnett, 27 P. 452. L. J. C. P. 216, 4 C. B. N.S. 423 ; (/) Lilley v. Harve'y, 5 D. & L. Lloyd v. Jnucs, 6 C. B. 81. 648; Fearon 1: Norvall, LI. 439; (1) See Canii>bell r. Loader, 8 H. Marwood i'. Wateis, 13 C. B. 820; & 0. 520. Claims for rent and Latham r. Spedding, 17Q. B. 440; mesne profits may now be joined Lloyd V. Jones, 6 C. B. 8r, 5 D. & also in the superior courts under L. 784; Pearson v. Glazebrook, 37 the Jud. Act, 1875, Order xvii. L. J. Ex. 15, L. R. 3 Ex. 27. Kule 2. {(/) 19 ), or there is a real dispute as to the landlord's title (c), or the premises are held over by a sub-tenant without the assent of tiie tenant (/ laid out with a pro- portionate deduction for every year up to seven years, when the improvement is to be taken as exhausted. In class (3), to such proportion of the sum prnj-)erly laid out as fairly represents the value to the incoming tenant, but at the end of two years he is not entitled to anything. In class (i), the tenant must have previous consent iu writing (v). In class (i), deduction must be made for the sum necessary for putting the premises into tenantable repair (»'). In class (2), a tenant must give notice in writing of his intention to make improvements between forty-two days and seven days before beginning. If the improvement is executed after notice to quit, the tenant must have previous consent iu Avriting (x). In class (3), where any exhausting crop has been taken from the portion of the holding on which the improvement Avas made, the tenant is not entitled to compensation {y), or where additional value of manure by consumption of feeding stuff is claimed from the landlord or incoming tenant under the custom or an agreement {z). In class (3), the tenant is entitled to the average amount of Ms outlay for like purposes during the three preceding (q) S. 59. {v) S. 10. (?•) S. 60. (w) S. II. It is suggested that (,5) s. 2. " tenantable repairs," means " ten- (t) S. 5-9. antable repairs subject to the agree- (m) In dass (i), where the land- ment of tenancy." See Sills. Ag. lord at the time of consent was not Hold. Act. absolute owner (see s. 4, that is one (x) S. 12. who can dispose of whole interest), (y) S. 13. for his own benefit, then the tenant (2) S. 14, and 8. 59. is entitled to sum not exceeding the additional value to the holding. EMBLEMENTS. 23/ years, or other less number for which the tenancy has endured, ciiaiv vi. subject to a deduction of the vahie of the probable loss of manure by selling certain crops within the last two years, or other less time for which the tenancy has endured, unless a proper return of manure has been made (a). The following deductions are to be made : — 1. Taxes, rates, tithe rent charge. 2. Rent. 3. Landlord's compensation (b). 4. Any benefit allowed to the tenant in consideration of the improvement (c). The tenant may claim compensation in respect of a breach of contract along with compensation for improvement () Goff V. HaiTis, 5 M. & G. 573. (c) Elwes V. Maw, 2 Smith's L. C 14, and cases tlierein cited. (d) 20 Hen. VII. c. 13. (c) Hellawell r. Eastwood, 6 Ex. 295 (cotton mill), this case is ex- plained in Holland v. Hodgson, L. K. 7 C. 1'. 328 ; Tra])pes v. Harter, 2 C. & M. 177 (calico-printers) ; Turner r. Cameron, L. R. 5 Q. 306, 39 L. J. (i. li. 125 (railway). FIXTURES. 239 even buildings, so erected as not to be let into the soil nor cmap. vii. annexed to it, do not lose their chattel character. Thus barns, granaries, sheds, or mills erocteil upon blocks, rollers, i)attens, pillars, or plates, resting on brickwork, but nut afll.xed to the freehold by being let into it or united to it by nails or other- wise, are not considered as fixtines, but as chattels removable by the tenant during the term, notwithstanding tliey may have sunk into tlie ground by their own weiglit (/'). So a wt)oden mill or barn resting by its own weight on a brick foundation is not part of the freehold (_r/). If the roof of a building be annexed by a tenant to the freehold, althougli the roof is kept in its position merely by its own weight, and can be removed without injury to the walls on which it is sustained, yet, as the tenant has no right to remove the whole building, he cannot carry away the roof, which forms an essential part of the structure (//). ^Movable articles are sometimes considered to be constructively annexed to the structure to which they belong. The doors and windows of a house, or the gate of a field suspended on hooks, keys, winches, rings, and other things necessary for the con- venient use of fixtures, have been held to pass witli the fix- tures to which they are appurtenant (i). Wiiere a fixture is severed from the freehold for a special and temporary object it does not lose its original character of a fixture. Thus a millstone taken from a mill for the purpose of being picked and hammered is not distrainable (J). The general rule, that whatever is affixed to the free- Tenant's fix- hold becomes jiarcel of it, is subject to many conceptions. '"'^^*" Tenant's fixtures are those which a tenant has, during his term, annexed to the demised premises, and which may be removed by him during the term (/.•). Such are fixtures erected by the tenant for the purposes of (i) trade or agriculture ; and sometimes, if combined with other purjioses, {2) ornament and convenience ; (3) fixtures removable by statute. (/) HuMtly V. Russell, 13 Q. B. (/) Lilford's case, ii Tep. 50!). ; 572. Pyot V. 8t. John, Cio. Jac. 329, 2 (;/) Rex V. Otley, i B. & Ad. 161 Bulst. 102, Xliep. Touch. 470. (wimliiiill); AVansborough r. Maton, (J) AVigstow'scase, Year-hook, 14 4 A. & E. 884 (wooden barn). See Hen. YIII. fo. 25, ])1. 6 ; Gorton r. also Dean v. Allalley, 3 Esp. 11 Falkner 4 T. R. 567 (cotton looms) ; (sheds) ; Tenton r. Rohart. 4 Esp. Place v. Fagg, 4 M, & Ry. 277 (niill- 33 (varnish slied); P'itzlierbert, v. stones and gear). See supra, tit. Shaw, I H. Blac. 258 (stables, sheds. Distress, p. 197. post, and rails) ; IMartin v. Roe, 26 (k) Hallon v. Rundcr, i C. M. & L.J. Q. P.. 129 (hothouses). R. 275; Elliot i: Bishop, 10 Ex. (/() Wansborough v. JIaton, 6 A. 508. & £. 884-889. CHAP. VII. 240 DETERMINATION OF TENANCY. (i.) Trade or Agriculture. Trade or agricui- The riglit of the tenant to remove fixtures set up by liini '"'"*^- for the purposes of liis trade, and the ground upon which this privilege Avas based, was phiinly stated by Lord Holt, C. J., in Poole's case (/), where it was held that a soap-boiler might well remove vats set \ip by him for the purposes of his trade, and this he might do by the common law, and not by virtue of any special custom in favour of trade and to encourage industry {in). This right of the tenant has been greatly extended by sub- sequent cases, principally upon the ground of the benefit to the public (?i). Trade fixtures form part of the land and pass by a conveyance of it, but they are subject to the right of removal by the tenant (0). Mr. Amos, in his work on Fixtures [p), after examining the authorities, says : " The following rule, however, may per- haps be found to be most consistent with the adjudged cases. That things which a tenant has fixed to the freehold for tlie purposes of trade or manufacture may be taken away by him, wherever the removal is not contrary to any prevailing prac- tice ; where the articles can be removed without causing mate- rial injury to the estate; and where, in themselves, they were of a perfect chattel nature before they were put up, or at least have in substance that character, inde[iendently of their union with the soil ; or, in other words, where they may be removed without being entirely demolished, or losing their essential character or value. If an erection, put up in relation to trade, can be severed without violating any one of these conditi(jns, it may very safely be affirmed, that whatever be its magnitude, construction, or mode of annexation, it is a fixture which a tenant is privileged to remove. It is not, however, meant to be inferred, that because in any particular instance these cir- cumstances do not all concur, therefore an article cannot be (/) Salk. 368. Bliickburne, 6 Biiig. N. C. 439 (salt- (m) Per Lord Holt, C. J., as to pans) ; Elwes v. ]\Iaw, 3 P^ast. 38, reasons given for this privilege in 54 (farm and trade buildings) ; Heap the earlier cases. See Amos on v. Barton, 12 C. B. 274 (stabling, Fixtures, 22-27; 2 Smith's L. C. &c.); Fisher v. Dixon, 12 CI. & F. 5th edit. 161. 312 (colliery). (n) See Amos on Fixtures, p. 32, (o) Climie v. "Wood, L. K. 4 Ex. and the cases there cited ; Penton 328 ; Holland v. Hodgson, L. R. 7 r. Roberts, 2 East. 90; Com. Dig. C. P. 328. Waste, (D) 2, 2 Saund. 259 n. ir. ( p) Page 48. Per Tindal, C. J., in Mansfield v. FIXTURES. 241 removed by the tenant. On tlie cuntrary, it is not incon- ciiAf vii. sistent with some of tlie decisions to say, that things may be removable, although these requisites are not completely ful- filled. And, indeed, when the liberality with which the Courts have generally been disposed to construe the indul- gence in favour of trade is considered, it is not improbable that they would extend the privilege even to cases where not one of these conditions is found to be satisfied. The rule, therefore, here proposed is only offered as an allirmative one, that wherever the above-nifUtioned circumstances do concur, there an article may cunfiilently be |)ronounced to belong to the tenant. And although it may be thought that this rule is too narrow to be of much practical utility, still no other could safely be laid down ; because, upon looking into the judgments of the Courts, it is impossible not to see that, in a disputed chiim between landlord and tenant, the absence of any one of the requisites which have been mentioned might, witli propriety, be urged against the exercise of the tenant's right." It has been held that a tenant may lawfully remove vessels and utensils of trade, such as furnaces, cop[)ers, brewing ves- sels, fixed vats, salt-pans, tables, partitions, and the like (q) ; machinery in breweries, collieries, mills, ttc, as steam-engines, cider-mills, and the like (?•). Also certain buildings for trade, such as a varnish-house, at least if they are built on plates laid on brickwork (s). So sheds or buildings, called Dutch barns, formed of uprights, rising from a foundation of brick- work, may be removed {t). It has not been established that a tenant may remove substantial and extensive additions to the i)remises, although he may have built them for the con- venience of his trade, such as limekilns (»), pottery or brick- kilns, workshops, storehouses, and other buildings ; nor indeed is it clearly determined that trade erections of a less substantial kind are in all cases removable by the tenant. Looms of a worsted mill which, although fastened by nails, could be easily removed, the object of setting them up being to enhance the value of the premises, are tenant's fixtures (f). (g) Poole's case, i Salk. 368 ; (s) Penton v. Ilob.^l•t, ante, p. 239. Lawton V. Lawton, 3 Atk. 13 ; Lonl (t) Dean v. AUalley, ante, i). 239. Dudley v. Lord "Warde, Aiiib. 114 ; See 3 East. pj). 47, 55, 56. Lawton v. Salmon, i H. Bl. 259 ; (?«) See Thresher v. East London Elwes V. Jlaw, ante, p. 240; Mans- "Waterworks Co., 2 1). & C. 608 field V. Blacklmrne, ante, p. 240; (linie-kilns) ; judgment of Lord Fisher v. Dixon, ante, p. 240; Wal- Brougham in Fisher r. Dixon, ante, mesley ?'. Milne, 7 C. B. N.S. 115. p. 240; Nihlett f. Smith, 4 T. R. ()•) 3 Atk. 12 Amb. 114, 3 East. 504 (lime-kilns). S3 ; Davis v. Jones, 2 B. & Aid. 165 (r) Holland v. Hodgson, L. E. 7 (warehouse jibs). C P. 328. Q 242 DETERMINATION OF TENANCY. CHAP. VII. Distillery tanks forming the roofs of rooms, masb-tuns, &:c., connected by pipes to reservoirs, &c., were held not to be fixtures (w). Cases, therefore, of this description are subject to doubt, wherever the removal of the article would deterionito the freehold to which it is attached, or where the structure or substance of the thing itself would be destroyed in the re- moval (x). It would seem, however, that a building accessory to the principal thing — e.g., an engine-house built to shelter a removable engine — might be removed (v/). Atrricuiturai At coiumou law a tenant in husbandry has not the same xtuK-i. privilege as a tenant in trade ; for he cannot take away fix- tures which he has affixed to the demised premises at his own expense, for purposes which are merely agricultural. Thus it has been held that a tenant cannot remove a beast-house, carpenter's shop, fuel-house, cart-house, pump-house, or fold- yard wall, erected for the use of his farm, even though he leaves the premises exactly in the same state as he found them on his entry (z). This rule, however, is confined to articles of a strictly agricultural nature. For if the object and purpose of an erection has also relation to a trade of any description, the tenant may take it away, notwithstanding it is the means of obtaining the profits of land, subject to the principles before stated in the case of trade fixtures. Thus a tenant may take away a mill for making cider (a) ; or machinery for working mines and collieries (h) ; or, it would seem, utensils set up by the tenant for manufachiring salt from springs on the demised premises (c). So a nurseryman or gardener is entitled to remove and dispose of young trees and shrubs which he has planted for the purpose of sale [d). So it would seem that a tenant might remove fruit-trees also, although of full bearing age, if they are nursery-trees, such as he might fairly deal with in his trade [c). But it has been held that a tenant of garden ground could not plough up strawberry beds, although he had purchased them, and (?«') Chidley r. Churcliw.'xrdens of but see Pisher v. Dixon, ante, West Ham, 32 L. T. N.S. 486. p. 240; Walmesley t;. Milne, ante, (x) Fisher v. Dixon, ante, p. 240 ; p. 241. Walmesley v. Wilne, 29 L. .1. C P. ('') Lord Dudley v. Lord "Warde, 97 (steam-engine, boiler, hay-cutter, Anib. 113. grind-stones) ; Whitehead v. Ben- (f) Lawton r. Salmon, i H. nett, 27 L. J. Ch. 474 (vats, &c.); Blac. 259, in notts. See Amos on Foley V. Addenbrooke, 13 SI. & W. Fixtures, 60-63. 174 (iron furnaces, &c. ). ('/) Wyndliani r. Way, 4 Taunt. (//) Khves V. Maw, ante, p. 240. 316, per Heath, J. See Lee v. (c) Elwes V. Maw, 3 East. 38. Kisdon, 7 Taunt. 190, and Pentou See judgment of Lord Ellenborough, v. Hobart, ante, p. 239. 2 Smith L. C. 164, and notes. (e) Wardell v. Usher, 3 Scott's (a) Lawton v. Lawtou, 3 Atk. 12 ; N. Kep. 508. FIXTURES. 243 although there was a practice to pay for such plants as chap. vri. between outgoing and incoming tenants \f). (2.) Convenience or Ornament. There are five circumstances most material to be considered Convenience or in ascertaining whether the tenant may remove lixtures which be has put up for ornament, or for the convenience of his occupation, viz., i. That the article was one of domestic con- venience, and not part of the architectural design. 2. That it was erected by the tenant. 3. That it could bo moved entire. 4. That it was but slightly fixed. 5. That the question w\is between landlord and tenant. A tenant has been allowed to remove fixtures put up for convenience or ornament, and which are of such a descrii)tioii as to be capable of being disannexed without any permanent injury to the inheritance, such, for instance, as stoves and grates fixed into the chimney with brickwork, and marble chimneypieces and wainscot, fixed with screws (g). In Grymes v. Boweren (A), a tenant was allowed to take away a pump which was attached to a stout perpendicular jjlank resting on the ground at one end, and at the other end fas- tened to the wall by an iron pin, which had a head at one end and a screw at the other, and went completely through the wall. The judgment of the Lord Chief-Justice Tindal in that case contains a good summary of the law with regard to this class of fixtures : — " It is ditticult to draw any very general, and, at the same time, precise and accurate, rule on this subject ; for we mu.st be guided, in a great degree, by the circumstances of each case, the nature of the article, and the mode in which it is fixed. The pump, as it is described to have been fixed in this case, appears to me to fall within the class of removable fixtures. The rule has always been more relaxed as between landlord and tenant than as between persons standing in other relations. It has been holden that stoves are removable during the term, and grates, ornamental chimneypieces, wainscots, fastened with screws, coppers, and various other articles ; and the circum- stances that, upon a change of occupiers, articles of this sort (/) Wetherell v. Howells, r (y) See Lawton ?\ Lawton, 3 Atk. Camp. 237. This case was decided 13 ; li. v. St Dunstan, 4 B. & C. on tlie ground that the plougliing 686 (dwelling-liouse) ; Colegrave j*. up of tlie plants was an injury Dias Santos, 2 li. & C 76 (dwell- maliciously done to the reversion, ing-house). and tliat the ])lants were not re- (/() 6 Biug. 437. moved by the tenant for sale iu his ordinary occupation. 244 DETERMINATION OF TENANCY. are usually allowed by landlords to be paid for by the iii- oomiiig tenant to the outgoing tenant, is confirmatory of this view of tlio question. Looking at the facts of this case, con- sidering that the article in dispute was of domestic conveni- ence, that it was slightly fixed, was erected by the tenant, could be moved entire, and that the question is between the tenant and his landlord, I tliink the rule should be made absolute." The following articles have been held to fall within this class of tenants' lixtures : — Hangings, tapestry, pier-glasses, chimney-glasses, and iron backs to chimneys (i) ; beds fas- tened with ropes or nails to the ceiling (j) ; stoves, mash-tubs, locks, bolts, and blinds (/c) ; cupboards standing on the ground and supported by holdfasts (l) ; coffee-mills and malt- mills (?«) ; iron ovens, clock cases (n) ; carpets attached to the floor by nails, for the purpose of keeping them stretched out, curtains, pictures, and other like matters of an ornamental nature which are slightly attached to the walls of the dwelling- house as furniture (o). So where a rector erected in the garden of the rectory two hothouses apart from and uncon- nected with the rectorj', and which consisted of a brick wall two feet from the ground, upon which was placed a frame and glass work, it was held that the frame and glasswork being removable without injury to the freehold, passed as a personal chattel to his executors (p). But where a conservatory was erected by a tenant on a brick foundation attached to the dwelling-house, and communicating with it by windows opening into the conservatory, and a flue passing into the parlour chinmey, it was held that it became part of the free- hold, and could not be removed {q). Fruit-trees and shrubs planted by the tenant, not in the way of his trade, are not removable by him (r) ; nor even a border of box or flowers (5). (i) Beck V. Rebow, i P. AVnis. Elliott, 10 Ex. 496, in error, 11 Ex. 94 ; Harvey v. Harvey, 2 Str. 113 (public-house). 1141. (p) Martin v. Roe, 7 E. &. B. 237, {j) Noy's Maxims, 167, gtli ed. ; 26 L. J. Q. B. 129. Keilw. 88. (q) Bucklaud v. Butterfield, 2 (k) Colegrave v. Dias Santos, 2B. Bra. k Bing. 54. Seethe judgment & C. 76. of Dallas, C.J. See also ]Martin v. (I) Keg. V. St. Dunstan, 4 B. & C. Roe, 7 E. & Bl. 237, 26 L. J. Q. B. 686. 129 ; West t'. Blakeway, 2 M. & G. {ill) Reg. V. Inhabitants of Lnn- 729; Jenkins t'. Getliing, 2 J. & H. dontliorpe, 6 T. R. 2i77- I'l'^ mill 520 ; Penry v. Brown, 2 Starkie. was clearly a chattel in this case. 403 (veranda). (n) 4 Burns' Eccl. Low, 411, 9th (r) Wyudham v. Way, 4 Taunt, edit. 316. (o) See judgment in Hellawell v. (s) Empson v. Soden, 4 B. & Ad. Eastwood, 6 Ex. 313 ; Bishop v. 65. FIXTURES. 245 CHAP VII. (3.) Removable hy Statute. Now by the 14 .fc 15 Vict. c. 25, s. 3, "If any tenant of JJ;;™;;;"'^''^ ''y a farm or lands shall, after the passing of this Act, with the consent in \Yriting of the landlord, for the time being, at his own cost and expense, erect any farm building, either detached or otherwise, or put any other building, engine, or machinery, either for agricultural purposes, or for the purposes of trade and agriculture (which shall not have been erected or put up in pursuance of some obligation in that behalf), then all such buildings, engines, and machinery shall be the property of the tenant, and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same, or any i)art thereof, may be built in, or permanently fixed to the soil, so as the tenant making any such removal do iu)t in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plight and condition, or as good plight and condition, aa the same were in before the erection of anything so removed : Provided, nevertheless, that no tenant shall, under the provi- sion last aforesaid, be entitled to remove any such matter or thing as aforesaid, without first giving to the landlord, or to his agent, one month's previous notice in writing of his inten- tion so to do ; and thereupon it shall be lawful for the land- lord, or his agent on his authority, to elect to purchase the matters and things so proposed to be removed, or any of them, and the right to remove the same shall thereby cease, and the same shall belong to the landlord ; and the value thereof shall be ascertained and determined by two referees, one to be chosen by each party, or by an umpire to be named by such referees, and shall be paid or allowed in account by the landlord who shall have so elected to purchase the same." After the 14th February 1876 tenants' fixtures are removable except such as \inder the Agricultural Holdings Act or other- wise entitle the tenant to coini)ensation, or have been so affixed in pursuance of some obligation, or instead of some fixture belonging to the landlord. Provided (i) the tenant has paid all rents and performed all obligations ; (2) he shall not do any avoidable damage in the removal ; (3) he shall make good all damage ; (4) shall give one month's previous notice . in writing ; (5) landlord may elect to purchase. The section does not apply to a steam-engine erected without notice in Avriting, or to the erection of which the landlord has objected by notice in writing. (See sect. 58 of the statute in Appendix.) 246 DETERMINATION OF TENANCY. CHAP. VII. In general, a tenant must remove his fixtures before the When 10 be re- expiration of his tenancy ((). In Lyde v. llussell (?/), this '""^■'■'^' rule was expressly recognised and api)rovcd by Lord Tenter- den, C. J., who added, "According to these authorities, then, the 2)ro[)erty in fixtures which would be in the tenant if he removed them during the term, vests in the landlord on the determination of the term." Sometimes a tenant under certain circumstances may retain his right of removing his fixtures, where he continues in possession after the expiration of his tenancy, and this would seem (v) to depend upon the question whether he had intended to abandon his property in the fixtures. But even in this case the tenant may be liable to an action at the suit of his landlord for being on the premises after his tenancy has expired (w). If the tenant retain possession of the demised premises, lie will be allowed to remove his fixtures after the actual determination of his tenancy (x). And where the tendency is determined by tiie death of the lessor (y). But where steam-engines were remov- able by the lessee, and had not been removed previously to the lessor entering for a forfeiture, it was held that trover could not be maintained for them (z). So where a lessor re-enters for a forfeiture, by reason of the tenant having become a bankrupt, the bankrupt or his assignees cannot afterwards sever and remove any fixtures (a), except in pursuance of a special stipu- lation in that behalf (b). So where a lessor recovers pos- session under an ejectment for a forfeiture, the tenant has no right afterwards to sever and remove any fixtures (c). Where the purchaser of lands having brought an ejectment against the tenant from year to year, the parties entered into an agreement that judgment should be signed for the plaintilr, with a stay of execution till a given period ; it was held that the tenant could not in the interval remove buildings, &.c., (t) Poole's case, i Salk. 386 ; Ex {>/) Heap v. Barton, 12 C. B. 278 ; parte Quiiicey, i Atk. 477 ; Dudley Martin v. Roe, 7 K k B. 237. 1'. Warde, Amb. 113; Year-books, {z) Minshall v. Lloyd, supra; 20 Hen. VII. 13, 21 ; Hen. VII. 26 ; Mackintosh v. Trotter, 3 M. & AV. IMinshall r. Lloyd, 2 M. k AY. 450 ; 184. But see Sumtner v. Broniilow, Pugh r. Arton, L. 11. 8 Eq. 626. 34 L. J. Q. B. 130. (z<) I B. k Ad. 394. («) AYeeton ^'. Woodcock, supra ; {v) See judgment of Lord Kenyon, Pugh ■;•. Arton, L. R. 8 Eq. 626. C.J. , in Penton v. Robart, ante, p. {(/] Stansfield v. The Mayor of 239 ; Hallen v. Runder, ante, p. Portsmouth, 4 C. B. N.S. 120, 27 239. L. J. C. P. 124; Sumner v. Bromi- (7v) Penton V. B.oha.rt, ante, p. 300. low, supra. {x) AYeeton r. AA^oodcock, 7 M. & (c) Minshall v. Lloyd, supra ; AY. 14, per Parke, B.. in Mackintosh IMackintosh ?'. Trotter, supra. But V. Trotter, 3 M. & AY. 184, as to a see Sumner v. Broniilow, supra. tenant at will removing his furni- ture. Seean^e, p. 231. Emblements. FIXTURES. 247 from the premises whicli he had liimself erected during his chap. vii. term, and before tlie action was brought (oyil 1: Slior- (s) Horsall r. Hey, 2 Ex. 778. lock.L. R. 5 Eq. 72, 37 L. J. Ch. 154, (t) Petrie v. Dawson, 2 C. & K. as to what are fixtures in the case of 138. a mortgage of rolling niilb. See ex (u) Sleddon v. Cruickshank, 16 jyartc Astbury, L. R. 4 Cli. 630. M. & W. 71. {!/) "Waterfall i\ I'enistou, 6 E. & (v) Coonibes i'. Beaumont, 5 B. & Bl. 876, 26 L, J. t^. B. 100. Ad. 72, ex parte Broadwood Id. 631. 250 DETERMINATION OF TENANCY. CHAP Til. to be in tlie order and disposition of a mortgagor in the event of his bankruptcy, whilst he remains in possession tliereof {z). Tlie registration of the mortgage under the Bills of Sale Act (17 ost, ss. 3-5. So also he may mortgage his property subsequently to the making of the lease, and such mortgage will operate as an assignment of the rever- sion (6). So he may assign his property for the benefit of his creditors, but this will be considered under the title Bankruptcy, post, c. 2, s. 2. An assignment by the landlord of his reversion was not (a) Beely v. Perry, 3 Lev. (6) Rogers v. Humphrey, 4 A. & 155. E. 299, 313. See/'Wtfi. BY ACT OF Tiri: TARTIES. 255 perfected until bis tenant in possession had recognised the chap i. assignee's title to be considered bis landlord, and this recog- iiitiou of title was called attornment. This, then, altbougli an act done by the tenant, is merely a recognition of the act of assignment already done by the landlord. By various Acts of Parliament restrictions against aliena- tion have been reniovetl, and principally by the tStatute of quia emptores (18 Ed. I. c. i), and the 12 Car. II. c. 24. The doctrine of attornment continued to a still later jieriod, until, by the 4^5 Anne, c. 16, it was made no longer necessary to attorn in order to complete a grant or convey- ance ; and by the 11 Geo. II. c. 19, s. 11, the attornment of any tenant does not affect the possession of any lands, unless made with the consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice. By sect. 10 of the 4^5 Anne, c. 16, "No tenant shall be prejudiced or damaged by payment of any rent to any grantor or conusor, or by breach of any condition for non- payment of rent before notice shall be given to him of such grant by such grantee or conusee " (c). A payment of rent by a tenant to his landlord before the day when it becomes due is not a payment of rent within this section ; therefore, where a tenant paid two quarters' rent in advance to his landlord, in ignorance of an assignment by the landlord of his interest in the premises to a third person, it was held that the assignee, after notice of the assignment to the tenant, was entitled to distrain (rowi), 7 A. & E. 447 ; Brook v. Biggs, 2 Bing. JS'.C. 572. BY ACT OF THE TENANT. 257 not estopped after the deternunatiou of the tenancy from chap i. setting up his own title in an ejectment by the landlord («), 2. By Tenant. A change of parties may take place by the tenant assigning Assigument. his term, and the consequences of such an assignment will bo Considered, 2^0:;^, ss. 3, 4, 5. A change of possession takes place upon an underletting Underletting. by the tenant ; and with respect to underleases, it shoiiKl be observed that the original lessee is liable upon the covenants entered into by him, although the under-lessee may have entered into similar covenants with the original lessee (o). It is the duty of the under-lessee to ascertain the contents of the original lease (/>). An under-lease should contain an express covenant on the part of the under-lessee to perform all the covenants and con- ditions, itc, in the original lease, except such as it is not in- tended he should perform. It is not sufHcient to insert in the lease similar covenants, even if couched in the identical words of the covenants of the original lease, for the covenants may not after all be the same, as they may begin to operate at different times, and so may vary substantially in their operation (q). 3. Consequences of Assignment. At common law, when the landlord assigned the tenant At commou law. became bound to pay rent to the assignee, but the express covenants of the lease being distinct contracts, and only choses in action, did not pass, and neither lessee nor assignee could sue upon them (r). By 32 Hen. VIII. c. 34, it was enacted, "That all persons ny32iien. via. being grantees or assignees to or by tlie King, or to or by any *^" ^■*' other persons than the King, and their heirs, executors, suc- («) Accidental Death Insurance K. 283 ; Grosveuor v. Green, 28 L. Co. V. Mackenzie, 9 W. R. 713, 5 L. J. Cii. 173. T. N.S. 20. (q) S.>e Logan v. Hall, supra. (0) Logau V. Hall, 4 C. B. 598, (r) "Wms. Sauud. 240 a, note 2 ; I 613, 624. Smith L. C 51,6th edit.; Martj'u?'. (p) Cossar V. Collinge, 3 Myl. & Williams, i H. & N. 817, 826, 26 L. J. Ex. 117. R 258 CHANGE OF PARTIES. CHAP. I. cessors, and assigns, shall have like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and by action only for not performing other con- ditions, covenants or agreements expressed in the indentures of leases, and grants against the said lessees and grantees, their executors, administrators, and assignees, as the said lessors and grantors, their heirs, or successors, might have had." Sect. 2 enacted, " That all lessees and grantees of lands or other hereditaments for terms of years, life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, suc- cessors, and assigns, havhig any gift or grant of the King, or of any other persons, of the reversion of the lands and here- ditaments so letten, or any parcel thereof, for any condition or covenant expressed in the indentures of their leases, as the same lessees might have had against the said lessors and grantors, their heirs and successors." Since this statute the assignee of the reversion and of the term stand in nearly the same position as the heir-at-law (s) and tenant formerly did, both with respect to covenants in law (1.) and express covenants (n), and can sue and be sued accordingly. The statute applies to grantees of part of the reversion (v). There are, however, some limitations to the operation of the statute. Causes of action which accrued previous to the assignment of the reversion will not pass with it (re). The statute does not extend to mere collateral covenants, but to such as run with the land (x). The statute only applies to leases by deeds, so that the assignee of the reversion upon a lease not nnder seal cannot sue upon the lease, nor is he bound by its terms (1/), and the lessor in such case does not lose any of his rights of action against the lessee by assign- ment (z). (s) See AVebb v. Paissdl, 3 T. R. tyn v. Williams, I. H. & N. 817, 393. 26 L. J. Ex. 117. {t) See ante. Part i, c. 4, s. 7, (x) Webb v. Kussell, 3 T. R. 393. tit. Covenants. Seep0.1t, sect. 4, p. 260. (u) Ibid. (i') Standen v. Christmas, 10 Q. (r) Kawlings v. Morgan, 34 L. J. B. 1^5 ; Elliot v. Johnson, L. R. 2 C. P. 185. Q. B. 120; Smith v. Egginton, L. R. {w) Hunt V. Bishop, 8 Exch. 675, 5 C. P. 145 ; 43 L. .T. C. P. 140. 22 L. J. Ex. 336 ; Hunt !■. Remnant, (z) 1 l.^kford v. Parson, 5 C. B. 9 Exch. 635, 23 L. J. Ex. 135 ; Mar- 920. CONSEQUENCES OF ASSIGNMENT, 259 Where a lessee assigns his term, he enters into covenaiita chap. i. that all has been clone by him to maintain the lease ; and tiie assignee, on his part, covenants to pa}' the rent, and perform the covenants in the lease, and save harmless the assignor ('/), but not after the assignee has himself assigned to another (6). A lessee continues liable in covenant to his lessor upon express (c) covenants, notwithstanding an assignment of the term and acceptance of rent (d), as well as to his assignee (e). There is an implied promise on the part of each successive assignee of a lease to indemnify the original lessee against breaches of covenants in the lease committed by each assignee during the continuance of his own term ; and such promise will be implied although each assignee expressly covenants to indemnity his immediate assignor against all subsequent breaches (/). Where a lessee grants an under-lease, the rent and cove- nants will not pass to an assignee of the term merely, but must be expressly assigned ((/). An action of covenant will not lie against the assignee of a lessee for breaches committed after the assignee has assigned over to a third party (h), but he will be answerable for breaches committed before the assignment over (i). Where the right of action is given to the assignee by the statute, the privity of contract is transferred, and it seems that the original covenantee cannot sue (j). Mortgagees by assignment of a term, whether in possession Assipnmonts by wav of mortgage. (a) Stains v. Morris, i V. & B. Jac. 521 ; Thursby v. Plant, i "Wins. 10 ; Burnett v. Lynch, 5 B. & C. Saund. 241. 589- (/) Moule V. Garrett, L. R. 7 Ex. (6) Wolveridge v. Steward, i Cr. loi ; 42 L. J. Ex. (Ex. Ch.) 62. & M. 644 ; Crouch v. Tregoning, 41 (v) Franklin v. Howes, 19 W. R. L. J. Ex. 97. 581, 24 L. T. N. S. 348. (c) It is said to be otherwise as (h) Taylor v. Shum, i B. & P. to implied covenants. Batchelor 21 ; Le Keux i: Nash, Sir. 1222 ; V. Gage, I Sid. 447 ; Sir. AV. Jones, Odell r. Wake. 3 Camp. 394 ; Onslow 223 ; Auriol 7: Mills, 4 T. R. 98 ; v. Corrie, 2 Madd. 330. S>ee jMSt, c. Williams v. Burrell, i C. B. 402. 2, Death of Lessee. ((/) Barnard v. Godscal, Cro. Jac. (i) Harley v. King, 5 Tyrwh. 692. 309 ; Norton v. Acland, Cro. Car. (j) Jieeley ?'. Parry, 3 Lev. 154 ; 579; Glover V. Cope, 4 Mod. 81; Green j'. James, 6 M. & W. 656. See Marsh v. Bruce, Cro. Jac. 334 ; i Tliursby v. Plant, i Wms. Saund. Smith, L. C. 56, 6th edit. 240. (e) Brett v. Cumberlaud, Cro. 26o CHANGE OF TAIiTIES. CHAP. I. or not, are liable to the performance of the covenants (Z), and ' equity will not interpose to relieve thcni, even although they are willing to give up their money (/). The mortgagee should take an under-lease instead of an assignment, in order to avoid the liabilities of an assignee (m). Leases are frequently deposited as security for money lent (n), but such posses- sion of the lease does not give a legal title (o). Where the holder of the lease had taken possession, it was held that there had been an equitable assignment, and the lessor might have a decree for specific performance of such covenants as ran with the land (^j). With respect to the effect of an assignment pendent lite, see Judicature Act, Order L., Rules 1-7, 2^ost, p. 265. Corenants ruuniriK with 4. Covenants running with the Land. The assignee of the reversion having by the statute (q) a the land. right to sue the tenant, and the assignee of the term a right to sue the landlord upon covenants which run with the land, or which touch and concern the thhig demised, it is necessary to consider what these covenants are. All covenants in law (r), generally called implied covenants, run with the land is). There are many express covenants which run with the land. Express covenants for payment of rent {t), for quiet enjoy- ment («), for further assurance (;■), for renewal (^w), for repairs (x), and not to assign without license {y), run with the land. (i-) Williams V. Bosanquet, I B & B. (v) Middlemore v. Goodale, Cro. 238 ; Burton r. Barclaj', 7 Bing. 745. Car. 503. (/) Anon. Freein. Ch. 253, and see (ic) Koe v. Hayley, 12 East. 464 ; the note to that case and the cases Brook v. Bulkeley, 2 Ves. Sen. 498; there cited. Simpson v. Clayton, 4 Bing. N. C. (m) Woodf. E. & T, 210. 758. («) Williams v. Evans, 23 Beav. (x) Dean and Chapter of Wind- 239; Matthews v. Goodday, 31 L. sor's case, 5 Co. 24; Lougher v. J. Ch. 382. Williams, 2 Lev. 92; Buckley v. (0) Doe d. Maslin v. Roe, 5 Esp. Pirk, i Salk, 317; Wakefield v. 105. Brown, g Q. 15. 209 ; Martyu v. (p) Lucas r. Commerford, i Ves. Clue, 18 Q. B. 661. Junr. 235. (y) Williams v. Earle, L. R. 3 Q. (q) Ante, p. 257. B. 739, 37 L. J. Q. B. 231. It (;•) Ante, I'art i, c. i, s. 7, Im- seems that this covenant will not run plied Covenants (b). with the land unless "assigns" are (») Bae. Abr. tit. Covenant (E); mentioned. Sfe Philpot v. Hoare, Vyoyan v. Arthur, i B. & C. 410. 2 Atk. 219, and tlie note to West v. (<) Parker v. Webb, 3 Salk. 5. Dobb, L. K. 4 Q. B. 637, per Black- (m) Campbell v. Lewis, 3 B. & A. burn, J. 393; Williams v. Burrell, i C. B. 402. COVENANTS LUNNINO WITH TIIK LAND. 26 1 So a covenant to maintain a sea-wall (c), tliat the lessee c uav i. should constantly reside on the premises («7), that either party should have power to determine the lease (0), not to carry on a particular trade (c), to leave part of the land as pasture, or to cultivate in a particular manner (j) Com. Dig. tit. Covenant, (B) B- 739) 752 ; Gorton v. Gregory, 3 3; Simpson v. Clayton. 4 Bing. N. B. & S. 90, 31 L. J. Q. B. 302. C. 758-780. (w) Roach V. Wailham, 6 East. (z) Holford v. Hatch, i Doug. 289 ; Thompson v. Hakewill, 19 C. 183 ; Hare r. Cator, Cowp. 765 ; B. N.S. 713, 720. Curtis t: Spitty, i ])ing. N. C. 756; {x) I Inst. 215 a; Congham v. "NVollaston r. Hakewill, s»7j)*a. King, Cro. Car. 221 ; Kidwelly v. (a) Broom r. Horc, Cro. Eliz. Brand, Plowd. 69 ; Twynam r. Pick- 633; Ards v. Watkin, Cro. Eliz. ard, 2 B. & A. 105 ; Yates v. Cole, 637 ; Stevenson v. Lambard, 2 East. 2 Bro. & Bing. 660 ; "WoUaston v. 575, 579. Hakewill, 3 M. & Gr. 297; Wright (6) Twynam v. Pickard, 2 B. & A. V. Burroughes, 3 C B. 685 ; Badeley 105. V. Vigurs, 4 E. & B. 71 ; Palmer v. 264 CHANGE OF rARTIES. CHAP. T. -v^-as^ however, held that the assignee of part of the reversion in the "whole of the huid might ;iv;ul himself of a condition, though the assignee of the whole reversion in a part of the land could not (c). But now, by the 22 *!!: 23 Vict. c. 35, s. 3, where the reversion upon a lease is severed, and the rent or other reservation is equally apportioned, tlie assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent, or other reserva- tion, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in re- spect of the apportioned rent, or other reservation allotted or belonging to him. (c) "Wright v. Burroughes, 3 C. B. 683. ( -<'5 ) CHAT TEE II. BY ACT OF LAW. 1. Death— of lessor ... of lessee . . . 2. Bankruptcy paOe 265 266 268 Marriage of female lessor ... of female lessee ... Writs of Execution PAOE 274 275 277 278 A CHANGE of parties may take place by act of law as well as by the act of the parties themselves. Thus the death of the lessor or lessee, the bankruptcy or marriage (in certain cases) of either, and execution under a proce.s3 of law, will effect a change of parties. These will be considered in their order. With respect to the abatement of actions already com- menced, the mode of continuing actions upon the death, bankruptcy, marriage of one of the parties, or the transfer to him or her by operation of law of the cause of action, has been greatly simplified by the rules of the Judicature Act 1875 (a), but they only apply where the cause of action survives. (a) By the Jiulicatiire Act, 1875, OrderL, rulei, " An action shall not become abated by reason of the mar- riage, death, or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assign- ment, creation, or devolution of any estate or title pendente lite." By rule 2, "In case of the marriage, death, or bankruptcy or devolu- tion of estate by operation of law of any partv to any action, the court or a judge may, if it be deemed necessary for the complete settle- ment of all the questions involved in the action, order that the hus- band, personal repre.sentative, trus- tee, or other successor in interest, if any, of such party be made a party to the action, or be served ■with notice thereof in such manner and form as hereinafter prescribed, and on such terms as the court or judge shall think just, and shall make such order for the disposal of the action as m;iy be just." By rule 3, "In case of an assignment, creation, or devolution of any estate or title, pendente lite, the action may be continued by or against the person to, or upon whom such es- tate or title has come or devolved." By rule 4, "Where by reason of marriage, death, or bankrujitcy, or any other event occurring after the commencement of an action, and causing a change or transmission of interest or liuljility, or by reason of any i>erson interested coming into existence after the commencement of the action, it becomes necessarv or desirable that any jierson not already a party to the action should 266 CHANGE OF TAKTIES. CHAP. II. Of lessor. I. Death. If the reversion descend.s to the heir, he is affected by such covenants as run uith the land [b), and may sue for breaches committed after the death of the lessor. For breaches committed after the death of the ancestor, the heir may sue although he is not named, and the covenant is made vith the ancestor, his " executors, and administrators " (c). When the covenants run with the land and descend to the heir, he cannot sue for breaches which happened before the death of the ancestor, unless the substantial damage has taken place since the death (d). So also the heir is liable to be sued, whether named or not (e). For breaches committed by the ancestor during be made a party thereto, or that any person already a party thereto should be made a party thereto in another capacity, an order, that the jiroceeding in the action shall be carried on between the continuing parties to the action and such new jiarty or parties, may be obtained ex parte on application to the court or a judge upon an allegation of such change or transmission of interest or liability, or of such person inter- ested having come into existence." })y rule 5, " An order so obtained shall, unless the court or judge shall otherwise direct, be served upon the continuing party or parties to the action or their solicitors, and also upon each such new party, uidess the person making the application be himself the oidy new party, and the order shall from the time of such service, subject, nevertheless, to the two following rules, be bind- ing on the persons served tlierewith, and every person served therewith, who is not already a party to the action, shall be bound to enter an appearance thereto within the same time and in the same manner as if he had been served with a writ of summons." By rule 6, "Where any person who is under no dis- ability, or under no disability other than coverture, or being under any disability other than coverture, but having a guardian ad litem in the action, shall be served with such order, such person may apply to the court or judge to discharge or vary such order at any time within twelve days from the service there- of." By rule 7, "Where any per- son being under any disability other tlian coverture, and not having had a guardian ad litem ajipointed in the action is served with any such order, such person may apply to the court or a judge to discharge or vary such order at any time within twelve days from the appointment of a guardian or guardians ad litem for sucli party, and until such period of twelve days sliall have expired, such order shall have no force or effect as against such last-mentioned person." (b) Lough er i'. Williams, 2 Lev. 92 ; Com. Dig. Covenant, (B) 2. 3. (c) Lougher v. AVilliams, 2 Lev, 92. (d) Com. Dig. Administration, (B) 13, Covenant, (B) ; Kingdon v. Nottle, I M. & G. 335 ; King v. Jones, 5 Taunt. 418; Orme v. Broughton, 10 Bing. 533 ; Kaymond V. Fitch, 2 Cr. M. & K. 588; Ricketts v. Weaver, 12 M. & W. 718. (c) Andrew's Case, 2 Leo, n. 104 ; Anon. Dyer, 257 a. DEATH. 267 life, lie is, however, not answerable, unless named, and then ciiai' u. only to the extent of the assets which he has by descent {/). For breaches of covenant by the lessee, whether runnint; ■with the land or not, which were made before the death of the lessor, the executors and administrators are the proper jjersons to sue (g). If the reversion is a chattel, it passes to the executor or administrator, who is bound by and has the advantage of all the conditions and covenants (h). The executor of the lessor may sue his lessee for a breach of covenant committed in the lifetime of the testator ; ami it is not necessary to aver any damage to the personal estate (i) unless it be a covenant upon which the heir alone can sue (J), or unless it be a mere personal contract (/c). Upon the death of the lessee, his personal representative Death of lessee, may be sued, in his representative capacity, for rent, or for breach of express covenant, to the amount of the assets (/) ; but he is not liable for breaches of implied covenants (w) broken after the death of the testator (»). If, however, he be sued for rent as assignee, and the . profits of the lease are less than the rent, and he has no other assets, he should plead that the premises are of less yearly value than the rent, that he has offered to surrender his lease to his landlord, and that he has no other assets (0), and should pay the actual value of the premises during the period into court (p). He must not, however, have depreciated the value of the (/) Co. Litt. 209 a ; Anon. Dyer, {I) Tilney v. Norris, i Lord Ray- 14 a ; Giflard v. Young, i Lutw. ; mond, 553 ; Williams on Executoia, Dyke v. Sweeting, "Willes, 585 ; 1492 ; AVollaston ?•. Hakewill, 3 M. Buckley v. Nightingale, i Str. 665 ; & Gr. 320 ; Kearsley v. Oxley, 2 H. Derisley v. Custance, 4 T. K. 75. & C. 896. {g) See infra. {m) See ante. Part i, c. 4, s. 7 b, (h) Co. Litt. 209 a ; Com. Dig. Implied Covenants, tit. Covenant, (C) i ; Williams v. (;/) Adams v. Gibney, 6 Bing. Burrell, i C. B. 402. 656 ; Peufold v. Abbot, 32 L. J (t) Kaymond v. Fitch, 2 Cr. M. Q. B. 67. & R. 588 ; Ricketts v. Weaver, 12 (0) Rubery v. Steevens, 4 B. & M. & W. 718. Ad. 241; Hornidge v. Wilson, 11 (j) Kingdon v. Nottle, i M. & S. Ad. & Ell. 645. 355 ; King v. Jones. 5 Taunt. 418. (p) Patteu v. Reid, 6 L. T. N. S. (k) Ricketts v. Weaver, su/jva. 281, Q. B. 268 CHANGE OF PARTIES. cn.\p. II. rent bj' his own acts (q), and he will be liable for the profit and advaiitaLTe whicli he might have received from the premises to the amount of the rent due (?•). But if he be sued as assignee for breach of any other cove- nant, the above plea will not avail him (.s), and his only course seems to be to assign it over to some third partj' (<). See, however, the 22 & 23 Vict. c. 35, s. 27, infra. He will not, however, be liable as assignee for future breaches of covenant when he has expended the amount of the sale of the lease, and all the other assets, in payment of simple contract debts (w). The profits of the land are to be applied, in the first place, by the executor to the discharge of the rent. If the profits are insufUcient, he must pay the rent out of the assets, and he will not be answerable beyond his assets if he plead as above {v). "Where a term is specifically bequeathed, it vests at first in the executor, and the legatee cannot enter until the assent of the executor is given (jf). The executor cannot waive the term, although it be worth notbing, for he must renounce the executorship in toto or not at all (x). Formerly executors could not be charged and could not recover in trespass for any personal wrong done by or to the testator, as for cutting down trees, (tc. ; but now, by the 3 & 4 Will. IV. c. 42, s. 2, they may be sued for such wrongs committed within six months before the death of the tes- tator {y). Personal representatives are now protected from claims after assignment by the 22 iSc 23 Vict. c. 35, s. 27, by which {q) Hornidge v. "Wilson, supra. retain the profits of the land in (?•) Hopwood V. Whaley, 6 C. B. order to provide for a future breach 744. of covenant, unless it be for pay- (s) Tremere v. Morison, i Bing. nient of rent. N.C. 89; Sleap v. Newman, 12 C [v) Ante, p. 266. B. N.S. 116; Wollaston v. Hake- (w) Doe d. Maberly v. Maberly, 6 will, 3 M. & Gr. 297. C. & P. 126 ; Wollaston r. Hake- (t) Taylor r. Shum, i B. & P. 21 ; will, supra. Pitclier V. Tovey, 4 Mod. 71 ; Wil- (x) Hellier v. Casbard, i Sid. 266, son V. Wigg, 10 pjast. 313. See i Lev. 127 ; Rubery ?'. Stevens, 4 ante. Covenants which Run with B. & Ad. 244, i Wnis. Exors. 642. the Ijand, p. 324. {?/) Powell r. Rees, 7 A. & E. 426. (u) Collins V. Crouch, 13 Q. B. See Erskine v. Adeaue, 42 L. J. 542 ; and it seems that he need not Ch. 825. BANKRUPTCY. 269 it is enacted, that where an executor or administrator, liable cuai'. ii. as such to tlie rents, covenants, or agreements contained in any lease or agreement for a lease granted or assigned to the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said lease or agree- ment for a lease as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a suflicient fund to answer any future claim that may be made in respect of any fixed and ascer- tained sum covenanted or agreed by the lessee to be laid out on the property demised or agreed to be demised, although the period lor laying out the same may not have arrived, and shall have assigned the lease, or agreement for a lease, to a purchaser thereof, he shall be at liberty to distribute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the per- sonal estate of the deceased to meet any future liability under the said lease or agreement for a lejise ; and the executor or administrator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease ; but nothing herein contained shall prejudice the right of the lessor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets may have been distributed. A similar provision is contained in sect. 28, for the protec- tion of personal representatives liable as such to the rents, covenants, or agreements contained in any conveyance of chief rent, or rent-charge, or agreement for such conveyance. Leases made before the statute are within the above section (z). 2. Bankruptcy. The Bankruptcy Act, 1S69, 32 & ;^;^ Vict. c. 71 (a), after Baakruptcy. providing that the property of the bankrupt shall become {z) Dodson V. Samniell, i Drew & Judges sitting in Parliament), an), enacts, by sect. 22, " tliat where any portion of such estate (the property of the bank- rupt) consists of copyhold or customary property, or any like proi)erty, passing by surrender and admittance, or in any similar manner, the trustees shall not be compeIlai>le to be admitted to such jjrojterty, but may deal with the same in the same manner as if such property had been capable of being, and had been, duly surrendered or otherwise conveyed to such uses as the trustee may appoint ; and any appointee of the trustee shall be admitted or otherwise invested with the property accordingly." *' Where any portion of the i)roperty of the bankrupt con- sists of things in action, any action, suit, or other proceeding for the recovery of such things, instituted by the trustee, shall be instituted in his official name, as in this Act pro- vided ; and such things shall, for the pur[)0se of such action, suit, or other proceeding, be deemed to be assignable in law, and to have been duly assigned to the trustee in his official capacity." By sect. 23, " When any property of the bankrupt acquired by the trustee under this Act consists of land of any tenure burdened with onerous covenants, of unmarketable shares in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the jtayment of any sum of )uoney, the trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exercised any act of ownership in relation thereto, may, by writing under his liand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudication,' and if the same is a lease, be deemed to have been surrendered on the same date (c), and if the (i) Sects. 14, 20. quit is required. In cases of com- ic) A contract of teiifincy is put position the usual notice would be an end to by the bankruptcy of the required to be given. The one tenant or the liquidation of his year's notice under s. 51 of the nffair.s, and tlie remedy of the land- Agr. Hold. Act, 1875, does not ap- lord is against the estate of the ply to liankruptcy or composition, bankrupt. Er, parte Llymvi Coal iSee the Statute in Appendix. Co., L. it. 7 Ch. 28. No notice to BANKRUPTCY. 2/1 same be shares in anj' coinitany, be deemed to be forfeited chaiv ii. from that date, and if any other species of property, it shall revert to the person entitled on the determination of the estate or interest of the bankrupt, but if there shall be no person in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt. Any person interested in any disclaimed property may apply to the Court, and the Court may, upon such ap[>licatiou, unlor possession of tlie disclaimed property to be delivered ui» to him, or make such other order as to the possession thereof as may be just." "Any person injured by the operation of this section shall be deemed a creditor of the bankrupt, to the extent of such injury, and may accordingly prove the same as a debt under the bankruptcy." By sect. 24, "The trustee shall not be entitled to disclaim any property in pursuance t)f this Act in caSes where an application in writing has been made to him by any person interested in such property, requiring such trustee to decide whether he will disclaim or not, and the trustee has for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the Court, declined or neglected to give notice whether he disclaims the same or nut " (d). If parties choose to conduct their affairs at common law, instead of taking the protection of this statute, they do it at their own risk, and cannot obtain any assistance from the statute, the provisions of which they have elected to disre- gard. Tlierefore if a man, whether as an assignee for credi- tors, or in his own right, takes an assignment of a lease, it becomes his by virtue of that assignment without any further act of acceptance (t). A point of a somewhat similar nature arose in several cases in Chancery, where the distinctions between cases of liquida- tion in bankruptcy, of composition by arrangement, and of ordinary bankruptcy, were pointed out (/). (d) As to time of disclaimer see 32 ; "Williams v. Bosanquet, i B. & Ex parte Lowering, L. K. 9 Cli. 586 ; B. 238. Banner v. JoIuisdii, L. K. 2 Ch. D. (/) Fx p^rte Vencs%, in re Gwynn, 802 ; Ex parte INIuore, L. K. 2 Ch. L. 11. lo E(i. 419 ; L'x parte Toil- D. 802 ; Ex parte Davis, L. K. 3 hunter, in re Norton, ib. 425 ; Ex Ch. D. 463. parte Key, in, re f^kinner, ib. 433 ; (e) White v. Hunt, L. R. 6 Ex. Bimiingliani Gas Light Coniiiany, in re Adams, L. It. n Lq. 204. 2/2 CHANGE OF PARTIES. ciiAi'. II. Wlion a trustee disclaims, he will not be able to enforce a covenant by the landlord to purchase any buildings, fixtures, or improvements at the end of the term (g). A lessee assigned the unexpired residue of his term to one who became bankrupt, and whose trustee disclaimed. An action was brought against the original lessee by his lessor for rent due between the adjudication and the disclaimer, and it was held that the action lay ; and semble (h) it would also lie for rent due after the disclaimer, the Court having made no order as to the possession of the property disclaimed (i). A lessor who grants a lease subject to a certain rent, and to certain conditions, is not by reason of the bankruptcy of his lessee, and the disclaimer of the trustee, compelled to take to an underlease at a less rent, and subject to other con- ditions (j ). By sect. 25 it is enacted that, subject to the provisions of this Act, the trustee shall have power to do the following things : — 1. To receive and decide upon proof of debts in the prescribed manner, and for such purpose to administer oaths. 2. To carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same. 3. To bring or defend any action, suit, or other legal pro- ceeding relating to the property of the bankrupt. 4. To deal with any prt)perty to which the bankrupt is beneficially entitled as tenant in tail, in the same manner as the bankrupt might have dealt with the same ; and sects. 56 to 73 (both inclusive) of the Act of the session of the third and fourth years of the reign of King William IV. (chap. 74), for " the abolition of fines and recoveries, and for the substitution of more simple modes of assurance," shall extend and apply to proceedings in bankruptcy under this Act, as if those sections were here re-enacted and made appli- cable in terms to such proceedings. 5. To exercise any powers the capacity to exercise which is vested in him under this Act, and to execute all powers of attorney, deeds, and other instruments, expedient or necessary (y) Kearsey v. Carstairs, 2 B. &; {j) Taylor v. Gillott, L. R. 20 Ad. 716. Eq. 682 ; 44 L. ,1. ('h. 740. This (/() Per IMartin & Piggot, B.B., was a bill to restrain an ejectment Brainwell B. diss. and to compel the lessor to grant a (i) Smyth v. North, L. K. 7 Ex. lease in accordance witli the terms 242. _ of uu underlease. BAXKUUPTCV. 273 for tlie purpose of carrying into effect the provisions of tliis ciui' 11 Act. 6. To sell all the property of the bankrupt (including the goodwill of the business, if any, and the book-debts due, or growing due to the bankrupt), by public auction or private contract ; with power, if he tiiinks fit, to transfer the whole thereof to any person or company, or to sell the same in parcels. 7. To give receipts for any money received by him, whicli receipt shall effectually discliarge tiie person paying such moneys from all responsibility iu respect of the application thereof. 8. To prove, rank, claim, and draw a dividend in the matter of the baukruptcy or sequestration of any debtor of the bankrupt. By sect. 26, the trustee has power to appoint the bankrupt to superintend the management of the property for the benefit of the creditors. By sect. 27, the trustee may, with the sanction of the committee of inspection, amongst other thing.s, mortgage or pledge any part of the property of the bankrupt for the pur- pose of raising money for the payment of his debts. The trustee in bankruptcy may assign the bankrupt's lea^^e without the landlord's license, notwithstanding the lessee's covenant not to assign without license ( k) ; and where the bankrupt had assigned for the benefit of his creditors, yet the forfeiture was void against the assignee in baukruptcy (/). Trust property remains vested in the bankrupt (?n) ; but by the 117th section, where the bankrupt is a trnsteee within the "Trustee Act, 1850" (u), the Court may appoint a new trustee. Where the bankrupt has any beneficial interest, as, for example, in right of his wife, it passes to the trustee in bankruptcy (0). ( /.:) Doe d. Goodhehere r. Bevan, & E. 292 ; Houghton v. Kcenig, 18 3 M & S. 353 ; Doe d. Cheere v. C. B. 235. yinith, 5 Taunt. 795. (n) 13 & 14 Vict. c. 60. (l) Doe d. Lloyd v. Powell, 5 B. (o) IMichel v. HuglieH, 6 Bing. & C. 308. 689; Doe d. Sliaw v. Steward. So {in) 32 & 33 Vict. c. 71, s. 15. also a mere equity of redemption pi. i; Dangerlield v. Thomas, 9 A. passes; Vandouaukeri'.Desborough, 2 Veru. 96. S 274 CHANGE OF PARTIES. CM A IV II. Machinery and fixtures attached to tlie freehold are part of the freehold during the term, and on the bankruptcy of tlie tenant do not pass to the trustee (/>). By sect. 34, the Landh>rd or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or effects of tlie bankrupt for tlie rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy, it shall be available only for one year's rent, accrued due jirior to the date of the order of adjudication; but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the overplus due for which the distress may not have been available. By sect. 35, when any rent or other payment falls due at stated periods, and the order of adjudication is made at any time other than one of such periods, the person entitled to such rent or payment may prove for a proportionate part thereof up to the day of the adjudication, as if such rent or l^ayment grew due from day to day. A landlord cannot enforce payment in full by the trustee of rent due before the bankruptc}', except by a distress for the arrears not exceeding one year's rent (q). He may dis- train for all subsequent rent (r). And it makes no difference that the rent is payable in advance (s). A lease may contain a proviso for re-entry upon the bank- ruptcy of the lessee, his executors, administrators, or assigns (/), or be limited so as to cease upon the bankruptcy of the lessee (»), and the landlord may enter accordingly (z;). (jo) Boydell r. M 'Michael, i C. By the Companies Act, 1S62, s. 87 (w), "When an order has been made for winding up a company under this Act, no suit, action, or other proceeding shall be proceeded with, or conimenced against the company, except with the leave of the Court, and subject to such terms as the Court may impose." And by sect. 163, "Where any company is being wound u[) by the Court, or subject to the sui)ervision of the Court, any attachment, secpiestration, distress, or execution put in force against the estate or cHects of the Company, after tlie com- mencement of tlie winding up, shall be void to all intents."' Where an execution has been perfected by seizure before the commencement of the winding up, a sale after the com- mencement is not a " putting in force of the execution within sect. 163 " (x). But where a landlord, after an order for the winding up of a company, distrained for the rent of the offices due prior to the Avinding up, it was held that the distress was void {?/). ■X. Marriage. 1 11 \i' II A change is also effected in the relations of the parties to Aianir.Ke a lease by the marriage of a female lessor or lessee. The relations of husband and wife have been in some respect altered by the " Married Woman's Property Act, 1870" (s). (w) 25 & 26 Vict. c. 89. (x) Ex parte Parry, in re The Great Ship Co., 33 L. J. Ch. 245. (y) In re Tlie Progress Assurance Co., ex "parte The Liverpool Ex- change Co., 39 L. .J. Ch. 504, L. R. 9 Eq. 370. See also In re The Lon- don Cotton Co., 35 L. J. Ch. 425, L. K. 2 Eq. 53; In re Bastow k Co., 36 L. J. Ch. 899 ; L. R. 4 Eq. 618; In re The PJxhall Coal Mining Co., 33 L. J. Ch. 595. And this is so now notwithstanding sect. 10 of tlie Jud. Act, 1875, which does not in this matter assimilate the practice in winding-up to that in Jiaiik- ruptcj'. In re Coal Consunier'.s Assignation, L. R. 4 Ch. D. 625. (■s) 33 & 34 "V'i'^t. c. 93. The dif- ferent species of jiroperty affected by that Act are apparently : — Sect, i, (i) \\''ages or earnings acquired (after the Act) in any employment, occu- pation, or trade, (2) Money or property acquired (after the Act) by literary, artistic, or scientific skill. (3) All investments of the above. Sect. 7, (4) Any personal pro- perty to which a woman married after the Act becomes entitled dur- ing marriage as next of kin to an intestate. (5) Any sum of money, not exceeding £200, to which a woman married after the Act be- comes entitled during marriage under any deed or will. Sect. 8, (6) Freehold, copyholil, or customary-hold projierty, which descends upon any woman married after the Act, as heiress of an intes- tate, as far as regards the rents and profits thereof. The sections which seem most material to the present subject are as follows : — ]iy sect. I, it is enacted, that the wages and earnings of any married 2;6 CHANGE OF PARTIES. Of female lessor. In the case of the female lessor, upon her marriage, her husband takes, during coverture, a freehold interest in her freeholds of inheritance (unless they be settled upon lier witli bis consent at her marriage), and lie may dispose of them by deed for their joint-lives, without her concurrence (a). woman acquired or gained i)y her lifter the passing of this Act (yth of August, 1870, see s. 15), in any em- ployment, occupation, or trade, in whicli she is engaged, or which slie carries on separately from her hus- band, and also any money or pro- perty so acquired by her tliroiigh the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be mar- ried, and her receipts alone shall be a good discharge for such wages, earnings, money, and property. By sect. 7, where any woman married after the passing of this Act shall, during her marriage, be- come entitled to any personal pro- perty as next of kin, or one of the next of kin of an intestate, or to any .sum of money not exceeding £200, under any deed or will, such property shall, subject and without prejudice to the trusts of any settle- ment affecting the same, belong to the woman for her separate use, and her receipts alone shall be a good discliarge for the same. IJy sect. 8, where any freehold, copyhold, or customary-hold pro- perty shall descend upon any woman, married after the passing of this Act, as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her sepa- rate use, and her receii)ts alone shall be a good discharge for the same. By sect. 11, a married woman may maintain an action in lierown name for the recover}' of any wages, earn- ings, money, and property by this Act declared to be her separate pro- perty, or of any property belonging to her before marriage, and wliicii her husband shall, by writing under liis hand, have agreed with her shall belong to her after marriage as her separate property ; and she shall have, in her own name, the same remedies, b(jth civil and criminal, against all jierson.s whomsoever, for the protection and security of Buch wages, earnings, money, and ])ro- jierty, and of any chattels or other jiroperty purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chat- tels, and property belonged to her as an unmarried woman ; and in an indictment or other proceeding it shall be sufficient to allege such wages, earnings, money, chattels, and property to be her i)roperty. By sect. 12, a husband shall not, 1)}' reason of any marriage which shall take place after this Act has come into operation, be liable for the debts of his wife contracted before marriage (this is rejicaled with respect to marriages taking ])lace after 30th July 1874 ; 37 & 38 Vict, c. 50, s. I, and he is now liable to the extent of his assets, see sect. 2) ; but the wife .shall be liable to be sued for, and any property belonging to her for her separate use shall he liable to satisfy such debts, as if she had continued unmarried. (Husband and wife married after the 30th July 1874, may be jointly sued for these debts, 37 & 38 \'ict. c. 50, S.I). By sect. 39 of the Agricultural Holdings Act (see the statute in appendix), the County Court may appoint a person to act as next friend of a married woman, and she, if entitled for her sejjarate use, and without restraint, is to be in respect of land as if she were unmarried, and if her husband's consent is re- quired, ]novision is made for her examination. (a) Co. Litt. 351 a ; Bac. Abr. tit. Baron and Feme, (C) i ; Robertson V. Norris, 11 Q. B. 916. He can also make leases for twenty-one years. See the 19 & 20 Vict. c. 120 ; and she can convey her estate by deed acknowledged under the 3 & 4 "Will. IV. c. 74, with the hus- l)and'3 concurrence. 8ee Jolly v. Haudcock, 7 Exch. 820. MAKKIAOK. 277 When issue is born, the husbiuui becomes tenant for life by chap. 11. the courtesy of her freeholds and estates tail in possession {/>). If there be no issue, then, on the death of the wife, the husband's interest ce.ases, and he cannot sue for rent accruing due subsequently {<•). If, however, the letting were by the husband alone, he Ct)uld sue, and the tenant would be estopped from denying his title ((/). Upon covenants running with the wife's land or reversion, the husband may either sue alone or jointly with his wife, if the breaches are subsequent to the coverture (e), except for breaches of covenants for title and further assurance (/). Arrears of rent, breaches of covenant, ifec, before marriage, are choses in action, which must be sued for jointly (j/). If the husband die without reducing into possession the wife's choses in action, they survive to her (/<). See, as to contracts, this subject fully treated of in " Adiiison on Contracts," 6th edit, 751. By the 15 ). A husband cannot assign his wife's reversionary interest in leaseholds, if that interest could not have vested in the wife during coverture (q). A joint-tenancy may exist between a married woman and another, until the liusband breaks it by disposing of the wife's moiety ; and if he die witfiout disposing of it, the joint-tenancy will continue ; and if the wife die, the sur- viving joint-tenant, and not the husband, shall take the "Whole (?■). A female lessee at will does not avoid the lease by marriage, (k) Bac. Abr. tit. Baron & Feme, (C) 2. T. ; Com. Dig. tit. Barou and (E) ; tit. Leases, (C). Feme, (E) 2. (/) Bac. Abr. tit. Leases, (C). (0) Syms case, Oro. Eliz. 33. (m) The husband can dispose of (p) Wallis r. Harrison, 5 M. & a wife's chattels settled on her with- W. 142. out his concurrence. Turner's case, (7) Dayr. Duberley, 16 Beav. 33, I Vern. 7 ; Factor v. Semayne, 2 5 H. L. Cas. 388. Vern. 270 ; Bates v. Dandy, 2 Atk. (r) Co. Litt. 185 b ; Com. Dig. 207. tit. Baron & Feme, (E) 2 ; Bac. (//) Bac. Abr. tit. Baron & Feme, Abr. tit. Baron & Feme, (C) 2. AVniTS OF EXECUTION'. 279 and she cannot avoid it subsequently without the consent of '^ "•^'' " her husbanel (.v). The husband is not liable in an action for use and occupa- tion by his wife before niairiage, unless such occupation was at his special instance and request (f). If the husband and^wife be evicted of a term which he has in light of his wife, and if he recover it in his own name, this vests the term in the husband (u). By the 6 Anne, c. 18, s. 35, every husband seised in right of his wife only, who, after tlie determination of the estate or interest shall hold over, shall be adjudged a trespasser, and the persons entitled to the premises may recover in damages the full value of the profits received during the wrongful possession (v). 4. By Writs of Execution. Lastly, it remains to be considered what is the effect pro- By wriu of duced upon the relations in which the parties stand to one ^^'^'^^ ""'' another by the operation of a writ of Jieri facias or of elegit (7v). It is the duty of the sheriff upon seizure and sale under a ■writ of Jieri facias, to assign the term by deed, and until lie does so the term remains in the debtor, who may bring an action for the recovery of land against the person to whom possession has been given (x). The purchaser is generally left to obtain possession by action, or to recover his rent by distress or action (y). He is liable for the rent, and upon covenants contained in the lease (.?); but the lessee continues liable, notwithstanding the estate is taken from him against his consent (a). (s) Bac. Abr. tit. Baroa and (x) Doe d. Hughes v. Jones, 9 M. Feme, (E). & AV. 372 ; Play fair v. Musgrove, {t) Richardson v. Hall, i Br. & 14 i\l. k W. 239. B. 50. (_(/) Lloytl i\ Davies, 2 Ex. 103 ; {a) Bac. Abr. tit. Baron and Mayor of Poole v. Whitt, 15 M. between Parties. AB of , hereinafter called "the landlord" of the one part, and CD of , hereinafter called " the tenant " of the other j^art, whereby it is mutually agreed as follows : — The landlord will by deed, when required by the tenant, LandionUo accept grant, and the tenant will, without investigating the landlord's fen'int't'o or dwelling-house a'eHse. . , , ^ , Parcels. , witli tlie L'arden title, accept a lease of all that messuage situate at , in the county of ' and paddock adjoining thereto, as the same is delineated in the plan annexed hereto, for a term of twenty-one years, 21 years, determinable nevertheless, as hereinafter mentioned, from the day of 18 , at a yearly rent of £ , to be paid by equal quarterly payments on the day of , the day of , the day of , and the day of in each year, the first quarterly payment to be made on the day of 18 , and the last quarterly pay- ment to be made one calendar month in advance before the expiration of the said term. 284 APPENDIX OF FORMS. CHAP. I. The lease shall contain the following covenants and pro- LeaseT^ntain vlsions (that is to Say), covenants by the lessee to pay the certain cove- j,g,,^ ,,,j ^jjg ^]j,^y ^^^ ^jjp tinics aiul ill tlic manner hereinbefore iiauts and pro- •' ,, 1 • 1 .1 • ^^ c visions by mentioned, and to pay all the tithes or rentcliarges in lieu ot To"i"iyVent. tithe and land-tax, and all taxes (a), charges, and assessments, Tithes and taxes, whether parliamentary, parochial, iiiunicii>al, or otherwise, then charged or thereafter to be charged on the said premises. To To keep in kee[» the said house, and all gates, stiles, fixtures, fences, wells, '■''I'"''' and drains, in good and substantial repair (b) and ctmdition. To paint. To paint with two coats of good oil-colour, and in a workman- like manner, in every third year of the said term all the out- side wood, iron, and other work previously or usually painted, and in every seventh year of the said term, all the inside wood, iron, and other work previously or usually painted. Tokeeppanien To keep the said garden and pleasure grounds, belonging in good ordei. ^^^ ^^^^ ^^.^^ mansioii-house, well stocked, cropped, and manured, and in proper order and condition, and in all respects to To permit properly cultivate and manage the same. To permit the an'a'S notrce" landlord, and all persons authorised by him, to enter on the of want of repair. g;iij premises and view the condition thereof, and to give or leave notice in writing of all defects and want of repair, and, within three calendar months after every such notice, to repair and make good all defects and wants of repair whereof To insure. notice shall have been given or left. To keep (c) the said mansion-house and buildings insured against loss or damage by fire in some insurance office to be approved by the land- lord, and to produce the policy and the receipts for the premium ])ayable in respect of such policy, and in the event of fire to lay out the moneys to be received on every such policy in rebuilding, reinstating, replacing, or repairing the l)reniises, or such part thereof as shall have been destroyed or damaged by fire,- and, at his own co.sts, to make good any To use as private deficiency. To u.'^e the mansion-house and hereditaments as a No'tToassipn private house only, and )iot to assign the premises without the without license. Jiceiise of the landlord. And at the expiration or sooner deter- ih'e p^emi'sei.* miiiation of the term to deliver up the premises, with all fixtures Proviso for re- therein, whether placed by the tenant or not, in good repair and condition. And also a proviso for re-entry (d) in case the rent shall be unpaid for twenty-eight days, whether legally demanded or not, or in case of the breach, non-observance, or non-perform- ance of any of the covenants and conditions to be contained in the lease. And a power (e) for either the landlord or (a) As to payment of taxes, see (d) As to re-entry, see supra, p. supra, p. 80. 105. (b) As to repairs, see supra, p. 82, (e) As to option to determine, see 175. supra, p. 72. (c) Asto insurance, at&supra, p. 85. FORMS OF AGREEMENTS AND LEASES, ETC. 2?$ tenant, on giving six calenilar niontlia' jirovious nutire in chat i writing to the otlier, to detunnine tiie lease at the end of tlie rower to tut.r- first, seven, or fourteen years of the term. And also the ['|','",':,,',7of'J'„ve.i usual covenant by the landlord for quiet enjoyment {/). or fourteen yeiirs, • (juiet CDJojmciit. The lease shall be {)repared by the landlord, and the tenant shall execute and deliver to the landlord a counterpart thereof. The tenant shall pay all the expenses incurred in the prepara- tion and execution of the said lease and counterpart, and of this present agreement (;/). These presents are intended to operate as an agreement only, and not to give the tenant any estate or interest in the premises (/(). In witness, ikc, 2. An Agreement for the Lease of a House, Furniture, cC-c, from year to year (i). An agreement made this day of jS , between I'urties. AB, iiercinaftcr called " the landlord " of the one part, aiul CL), hereinafter called "the tenant" of the other part, whereby the landlord agrees to let, and the tenant at;rees to take, the ,''1"'!'°i:^ '%''"'• house known as No. Street, Kensington, London, with iiouscforoue the stables adjoining thereto, and all the furniture, fixtures, fr*'dmy"m.Vo and effects described in the schedule hereto, for the term of y'^"''- one year (j) from the day of i8 , and so on from year to year until the tenancy shall be determined at the end of the first or any subsequent year, by either the landlord or tenant giving to the other six calendar months' previous notice in writing. The rent to be £ , and to be jiayable quarterly on the iii-ut to i.e paid day of , the day of , the day of 'i"=""--''y- , and the day of , in each year. The first quarterly payment thereof to be made on the day of 1 8 , and the last quarterly ])ayment thereof to be made one month before the determination of the tenanc}'. The tenant to pay all rates, taxes, and i'^posi- ^pj^j^^^j ^^ tions, whether parliamentary, parociiial, municipal, or other- all taxes, d:c. wise, except land-tax and tithes or rentcharge in lieu thereof, which will be paid by the landlord. /) As to quiet enjoyment, see furnislied liouse is a man of good suf/ra, p. I02, 187. means, as in tlie event of the tenant {iration of the lease. FOIIMS OF AGREEMENTS AND LEASES, ETC. 2 8/ tion and form, and in such building line as shall be approved 'Iiai' r. by the surve3'or of the landlord, each house to be of the value of £ , and to be constructed of the best materials, and in a good, sufficient, and workman-like manner, and will lay down drains with proper traps and gullies, connecting -each lionse with the main sewers or drains to be made as aforesaid. And will permit the surveyor of the landlord to enter upon i'«-"niit lamiioni the said hereditaments, to examine the materials used, or about to be used, in the construction of the houses, and also the houses then built or being built, and will instantly remove from the hereditaments any materials which may be disapproved of by the said surveyor, and will not use them in the construction of {Tie said houses. And will, on or be- Finisii houses i.y fore the day of i8 , completely finish and render " ^'^*" **"■'■ fit for habitation the said houses so to be built. And Lay out (:ar«ioii. will lay out and plant the said piece of land coloured on the said plan, and marked with the word "garden," as an ornamental garden, with a lawn, shrubberies, trees, and flowers. And will erect around the said garden an iron railing in a rut uj. raiiiiiK. stone setting, with gates convenient to the occupiers of the houses about to be built, the arrangement and planting of the said garden and the form of the iron railings to be approved by the surveyor of the landlord. And will provide keys to Provide keys. the said gates, and will deliver one key to the occupier of each house. And will permit the occupiers of the said houses, their families, servants, and friends, to walk in and use the said {'o^™e'p^ra"ii"^'^'' garden, and will not permit any other person or persons to use the said garden. And will keep the said garden in good Keep the panien order and well planted and cultivated, and will paint the '° b^ou order. said iron railings once in every year, and renew the same with the stone setting whenever it shall be necessary. When the said road, main sewers, drains, and garden shall i-ancu.ird to be finished to the satisfaction of the said surveyor, and when ''"'"'■ '^'""■'' the said surveyor shall certif)' in writing to the landlord, his heirs or assigns, that any one or more of the said houses has been built, covered in, and completed to liis satisfaction, then the landlord, his heirs or assigns, will grant to the tenant or his nominee, for the then residue of the said term of 99 years, a lease of any one house, or of two or more houses, the com- pletion of which shall have been certified by the surveyor (wi). A proportionate part of the entire rent payable in respect Htnt. of the w^hole hereditaments shall be reserved in each lease, but the remainder of the entire rent shall continue to be pay- able by the tenant. (m) As to granting a le.isc, see ante, p. 189. 2S8 APPENDIX OF FORMS. CHAP. I. Coveiiauts in lease. To pny rent. Taxes. To keep in re- ]>iiir. Piiint. To apply insur- ance moneys in repairing liere- ilitaments. To .permit land- lonl to enter and view. No tritde to lie carrieil on. To leave assign- ment with soli- citors of the land- lord. Landlord to covenant for airs, Insure. friends, either with or witliout perambulators or other carriages for children, to walk in, use, and enjoy the orna- mental garden in front of the said dwelling-house. To have and to hold the said hereditaments hereinbefore expressed to be hereby demised unto the lessee for a term of years from the day of iS , yielding and •paying therefor the yearly rent of £ by four equal quarterly payments on the day of , the day of , the day of , and the day of in each year, the first quarterly payment to be made on the day of i8 , and the last quarterly payment to be made on the day of next preceding the expiration of the said term. And yielding and paying in the event of tlie said term being determined by re-entry under the provision for re-entry hereinafter contained, a proportionate part of the said rent for the fraction of the current quarter up to the day of such re-entry. And the lessee doth hereby covenant witli the lessor in the manner following : — That he, the lessee, will pay the rent on the days hereinbefore named for the payment thereof. And will pay all taxes, rates, and impositions, whether parliamen- tary, municipal, parochial, or otherwise, which now are, or hereafter may be, imposed on the said jiremises, or in respect of the house and buildings erected thereon. And will at all times during the said term keep the said house and buildings in good repair and condition, and particularly will, in every year {rti) of the said term, paint with three coats of good oil colour all the outside of the house and buildings previously or usually painted, and in every year («) of the said term will paint with two coats of good oil colour the inside of the said house and buildings. And will permit the lessor or his agent to enter upon the premises hereby demised, to view the state and condition thereof. And will forthwith make good all defects and wants of repair, notice of which shall have been given by the lessor to the lessee or left u])ou the pre- mises. And will insure the house and buildings in the Insurance Office, or in some other office to be ap- proved of by the lessor. And in the case of loss or damage by fire will lay out the moneys to be received from such insurance in reinstating and restoring the said house and buildings, or such ])art thereof as shall have been destroyed and damaged (o). And if the money received from such iusur- (»() Usually three years, ((i) fJsuiiUy seveu jeara. {o) See anUt r« 178. FORMS OF AGREEMENTS AND LEASES, ETC. 29 1 ance shall be insufficient to restore and reinstate the said <-ii\i' i house and buildings, or such part tliereof as shall be destroyed or damaged by fire, then tlie lessee will provide such a sum of money as shall he suflicient to complete tiie restoration and reinstation of the said house and buildings. And will con- To keep up tribute the yearly sum of £ for the purpose of keeping '>'•'"''-*"• the said ornamental garden in good order and condiuon. And will not use the said house and buildings for the purpose Not to.-nrry .m of any trade or business without having previously ob- *"^ """''*""' tained (p) the written consent of the lessor. And will not do or suffer to be done upon the premises anything which may cause an annoyance or become a nuisance to the neighbours. Or cause uuis- And will upon every assignment or luiderlease leave such ''"'^''"' assignment or underlease with the solicitors of the lessor, together with a sum of £ as a registration fee. And Avill at the expiration, or sooner determination, of the said term deliver up the said premises in good condition and sound To deliver ui> <>u repair. cxpiraOou. Provided always, and these presents are upon this express Proviso for re- condition, that if the rent hereby reserved, or any part '^''"^^' thereof, whether the same shall have been legally demanded or not, shall be in arrear for twenty-one days, or if and when- ever there shall be a breach of the covenants and conditions herein contained, and on the lessee's part to be observed and j^erformed, the lessor may enter upon any part of the premises in the name of the whole, cand thereupon the said term of years shall cease and determine. And the lessor doth hereby covenant with the lessee that Covenimt r^r it shall be lawful for the lessee at all times during the said 'i'"''-' enjoyment, term hereby granted, peaceably and quietly to hold and enjoy the premises hereinbefore expressed to be hereby demised without any interruption or disturbance by the lessor or any person or persons claiming through or under him. In witness, (kc. 5. Agreement to Let Rooms in a House. Memorandum of Agreement made and entered into the parties. day of One thousand eight hundred and seventy- , between hereinafter called the lessor of the one part, and hereinafter called the lessee of the other part. The lessor hereby lets and the lessee hereby takes which said rooms and premises form part of a mes- Parcels, suage or tenement belonging to the lessor situate on the (p) For form of license, see post, p. 332. ?92 APPENDIX OF FORMS. Rent. Covenants by lundlord. CHAP. I. side of Street, in the cnu7ity of , known as . And also the water-closet on the floor of the said messuage or tenement for the term of years, from the day of , One thousand eight hundred and , at the yearly rent of j)onnds, the said rent to be payable by equal quarterly payments on the usual quarter days, free from all deductions whatsoever, the first quarterly payment to be made on the day of , One thousand eight hundred and . And the said landlord and the said tenant hereby mutually agree as follows: — Tlie said landlord will pay all taxes, rates, assess- ments, or impositions, parliamentary, parochial, or otherwise, charged or to be charged on the said premises, except such as are hereinafter agreed to be paid by tbe said tenant. And also shall and will permit the said tenant, his executors, ad- ministrators, or assigns, so long as he shall pay the rent here- by reserved and observe this agreement, to have, hold, and quietly occupy the said rooms and premises in manner afore- said. And also in case of the said rooms and premises, or any part thereof, being destroyed or damaged by fire, will, with all reasonable speed, at his own expense, rebuild and rein- state so much of the said premises as shall be so destroyed or j!y tenant. damaged as aforesaid. And the said tenant will, during the said term, pay all water-rates and charges for gas in respect of the said rooms and premises, also the sum of one shilling per week for corridor and staircase gas. And also will not, at any time during the said term, affix to the windows of the said rooms and premises, externally or internally, any Vene- tian or other blinds, except of such colour and construction as shall be previously approved by the said landlord, his heirs or assigns, or his or their surveyor for the time being. And also will at all times during the said term, whether required to do so by notice or not, at his own expense, and as often as occasion may require, well and sufficiently repair, maintain, paint, grain, empty, amend, and keep the internal parts of the said rooms and premises, and all pipes, sinks, drains, pumps, water-closets, and appurtenances belonging, or which shall or may belong to the same, in good and tenantable repair and condition, reasonable use, and fair wear and tear and damage by fire in the meantime only excepted, and also will once in every month during the said term, have all chimneys and fiues belonging to the said rooms and premises thoroughly swept and cleansed. And also will, during the said term, clean all the windows of and belonging to the said rooms and premises at least once in every two months. And also will, at the expiration or other sooner determination of AGREEMENT TO LET ROOMS IX A HOUSE. 293 the s;iid term, peaceably and quietly, surrender ;uid yield up ciiAiv i. unto the huulk)rd, his heirs and assigns, the said rooms and ])reniises villi the appurtenances, in such good and tenant- able repair and condition as aforesaid, together with all im- ))rovements, additions, and other things, coming within the denomination of landlord's fixtures, wliich now are, or shall be at any time during the said term, fixed or belonging to the said premises, or any part thereof. And will permit the said landlord, his heirs or assigns, or his or their agents or surveyors, at any time or times, to enter into and upon the said premises, and take a schedule of such fixtures so to be yielded up as aforesaid, and also to view, search, and see the state and condition of the said premises, and of all such defects and wants of repair on any such view found to give or leave notice in writing at or upon the said premises to or for the said tenant, his executors, administrators, or assigns, to repair and amend the same, and tlie said tenant, his execu- tors, administrators, and assigns, will, within three calendar months after receiving such notice, well and sufficiently repair and amend the same accordingly (reasonable use and fair wear and tear and damage by fire excepted), but nevertheless without prejudice to any other right or remedy of the said landlord, his heirs, or assigns in respect thereof : and also will permit the s:iid landlord, his heirs or assigns, or his or their agents or surveyors, and with or without workmen and others, at all times to enter in and upon the said premises, and every part thereof, for the purpose of repairing or paint- ing the outside thereof, or of carrying out and completing any structural or other reixiirs, and of making any alteration and addition which shall or may be required in or to the building and premises, of which the said rooms and premises form part, or in or to any premises adjoining or contiguous thereto, and to cleanse, empty, or repair, any of the sewers, drains, gutters, or pipes, belonging to the said building and premises or any ])urt thereof. And also will not, without the consent in writing of the said landlord, his heirs or assigns, assign, underlet, or part with the possession of the said rooms and premises or any part thereof, or any interest therein. All assignments and agreements for underletting shall be prepared by the solicitor of the said landlord, his heirs or assigns, at the expense of the said tenant, his executors, administrators, or assigns. And also will not use the said premises, or any part thereof, or permit the same to be used or occupied for any unlawful or immoral purpose, or for any purpose other than as residential chambers, without the consent in writing of the said landlord, Lis heirs or assigns, and will not deposit any stores of coal or 294 APPENDIX OF FORMS. CTIAP T. Proviso for re- entry. Costs of ajjree- ment. any combustible or offensive goods, provisions, or materials, upon the said premises, nor do or permit to be done any waste, spoil, or destruction, or any act, matter, or thing which shall be or become a nuisance or annoyance to the said landlord, his heirs or assigns, or his or their tenants or the tenant or occupier of any of the adjacent premises. And also shall not, nor will, without the previous consent in writing of the said landlord, his heirs and assigns, pull down or alter or in any way interfere with the construction or arrangement of tlie premises, or cut, alter, or injure any of the walls, timbers, or floors of the said demised premises or any part thereof, or in any way deface or disfigure the walls or ceilings thereof, nor put up or hang out any signboard, placard, notice, or adver- tisement. Provided always, and these presents are upon this express condition, that if and -whenever any jiart of tlie said rent hereby reserved shall be in arrear or unpaid for the space of twenty-one days (whether the same shall have been legally demanded or not), or if and whenever the tenant, his execu- tors, administrators, or assigns, shall carry on upon the said premises any trade or business, or nse or occupy the said I^rernises or any part thereof, or permit the same to be used or occupied for any purpose whatever other than residential chambers without such license as aforesaid, or if and whenever there shall be a breach, non-observance, or non-performance of any of the clauses and stipulations hereinbefore contained, then and in any of such cases it shall be lawful for the said landlord, his heirs and assigns, or for his or their agents for the time being in his or their name, and on his or their behalf, into the said premises or any part thereof in the name of the whole to re-enter and the same to re-possess and enjoy as in their first and former estate anything hereinbefore contained to the contra;ry notwitlistanding, but without prejudice to any rights or remedies which shall have accrued to the said land- lord, his heirs or assigns, previously to such re-entry as afore- said. The costs and expenses attending the preparation and execution of this agreement { ) shall be paid by the said tenant. As witness, &c. Pm ties. 6. Agricultural Lease for Tiuentij-one Years (q). This indenture, made the day of i8 , between AB, of hereinafter called " the lessor," of the (7) This lease is liaserl upon tlie ments, &c., varies in different couii- form of agreement recommended by tries. See a list of them in W'ond- the Royal Agricultural Society. It fall's Landlord and Tenant, nth should be borne in mind that the edit., p. 721, custom as to farming and omble- AGRICULTURAL LEASE FOR TWENTY-ONE YEARS. 295 one part, and CD, of , hereinafter called " the lessee," cii.vr i. of the other part. Witnesseth that in consideration of the rent hereinafter reserved, and of the covenants and conditions herein- after contained, and on the part of the lessee to be paid, observed, and performed, he the lessor dotli hereby demise nnto the lessee, his executors, administrators, and assigns, Ail that farm known as farm, situate in the parish Parcels, of and county of , as the same is now, or was lately, in the occupation of , the particulars whereof are specified in the schedule hereunder written, with the rights, members, and appurtenances thereto belonging, or appertain- ing. Except out of this present demise, all timber (?•) and Kxooptioi, of timber-like trees, saplings, and pollards now growing, or which may hereafter grow upon the premises. And also all mines, minerals, quarries, stone, brick, earth, clay, gravel, and other substances, in, upon, or under the jiremises. The lessor, his heirs and assigns, paying compensation to the lessee, his executors, administrators, or assigns, for all damage done, by the exercise of the rights hereinbefore reserved, such compen- sation, in case of dispute, to be settled by arbitration, as here- inafter provided. And also reserving liberty for the les.sor. Reservation to his heirs and assigns, and all persons authorised by him or '*^^" '""'"-t. them, with or without horses, carts, and carriages, to enter and remain upon the said premises for the purpose of marking, felling, grubbing up, lopping, and topping the said timber, tim- ber-like trees, saplings, and pollards, now growing, or which may hereafter grow upon the said premises. And of planting trees upon any part of the premises. And of searching for, search for anu getting, digging, winning, working, disposing of, and carrying *°'''' ""ines. away any mines, minerals, quarries, stone, brick — earth, clay, gravel, and other substances excepted out of the.se presents, and of making any shafts, jjits, adits, drains, and roadsj, and of erecting any building.s, works, ajid machinery, which may be necessary for working any mines, and obtaining, getting, working, and rendering fit for sale the said minerals, stone, brick-earth, clay, gravel, and other substances. And also reserving liberty for the lessor, his heir.% and assigns, M.ikinjt and all persons authorised by him to enter and remain npon ""i"'"*'^"'^" *'• the said premises for the purpose of draining, enclosing, improving, and building upon the same, or any part thereof. And of hunting, sporting, and killing, or taking game or Pr'^^tin?. fish thereon ; and of viewing the condition of the said premises, and for all other reasonable ])urposes. To have and Jiaix'niiim. to hold the said farm and hereditaments hereby demised, (r) As to timber trees, see ante, p. bo. 29C APPENDIX OF FORMS. CI TAT. I. n'M».l.Miiiiim Ixed yearly rent Further rent for breaking; up iiieiulow luud. Not cultivatinfr i.ccoriliug to the least-. llCMMenihiin of jiro|)unionate part of rents in the event of re- entry. Covenants by lessee. To pay rent. Kates, taxes, Ac. To resiile. Not to assign or underlet. Do the repairs. e.Kcept and reserved as heretofore expressed, unto the lessee, his executors, administrators, and assigns, for a term of years from the day of 18, Yielding and pay- inrj therfor during the said term the certain yearly rent of £ by equal half-yearly payments on the day of and the day of in each year, the lir.st payment to be made on the day of 18 , and the last payment to be made one calendar month before the ex- piration of this lease. And yielding and jKiyinrj a further yearly rent of j£ an acre for every acre, and so in pn)[)or- tion for a greater or less quantity tlian an acre of land, which (now being meadow or pasture) shall be broken up without the previous consent in writing of the lessor, his heirs or assigns ; and a further yearly rent of X an acre for every acre (and so in proportion for a greater or less quantity than an acre) of land which shall not be cultivated or managed according to the course of husbandry hereafter prescribed. iSuch further yearly rents to be paid by equal half-yearly pay- ments on the day of and the day of ill each year, and to continue payable during the continuance of this present lease. The first of such last-mentioned half- yearly payments to be made on the first of the said half-yearly days of payment after such breaking up, or such improper cultivation or management, .and the last payment to be made one calendar month before the expiration of this lease. And also yielding and paying in the event of and immediately upon the said term being determined by re-entry under the proviso hereinafter contained a proportionate part of the rent hereby reserved, and of any further rent or rents then payable for the fraction of the current half year. And the lessee doth hereby for himself, his heirs, executors, and administrators, covenant with the lessor, his heirs, and assigns in manner following : — That the said lessee, his executors, administrators, or assigns will pay the said yearly rent of £ , and also the further rents if payable at the times hereinbefore appointed for 2)ayment thereof. And also all rates, taxes, tithe — reutcharge, and other payments and assessments now charged upon, or hereinafter to be charged upon the said premises. And tiiat the lessee, his executors, administrators, or assigns shall with his or their family inhabit the farmhouse hereby demised, and make the same his or their usual place of abode. And will not assign or underlet the said premises without the ])revious written consent of the lessor, his heirs or assign.s. And will keep the inside of the farmhouse and of all build- ings on the said farm, and all the gates, stiles, rails and pale fences, hedges, ditches, watercourses, roads, bridges, and every AGUICULTUKAL LEASE FOR TWENTY-ONE VEAKS. 297 part of tlio said premises (except the outer walls and roofs of Cii.\r. i. the said farinhouse and buildings) in good re[)air, order, and condition. The lessor, his heirs and assigns providing tlie timber in the rougli, bricks ami lime necessary for such repairs, the lessee carrying the said materials provided by the lessor, his heirs and assigns, from any place not exceeding miles from . And will paint with two coats of good To paint insiao. oil colour in every year of the said term all the inside part of the farmhouse and buildings heretofore and usually painted, and in every year of the said term the out- side part of the said farmhouse and buildings, and all posts, rails, fences, and wires heretofore and usually painted ; and will, in every year of the said term, tar all the gates, posts, TarraiU, &c. rails, and fences heretofore and usually tarred. And will, at his own cost, during the said term keep tlie said farm-house and buildings insured against loss or damage by lire in the insure furm- Insurance otlice, or in such other ofHce or olHces as \'°'^^^ '^"'^ ''"'''' shall be approved of in writing by the lessor, his heirs or assigns; and will, when required, produce to the lessor and T" produce pnii- his heirs, and all persons authorised by him, the policies''"'*''" "^^'•'i' ^■ of such insurance and the receipts for the premiums payable in resi)ect thereof ; and if the said farmhouse and buildings, or any part or parts thereof, shall be destroyed or damaged by fire, will lay out and expend all moneys to be received by To apply insnr- virtue of such insurance in repairing, reinstating, and ""\7uS5uing* '" rebuilding the said farndiouse and buildings. And will houses, not cut down, lop, or tt)p any timber, timber-like trees, Not to cut trees, saplings, and pollards now growing, or which may hereafter grow upon the said premises. And will, by sufficient fencinfr, And protect the . i. 4.1 4. 1- 2 ): 1 s- 1 <^' same by feuciiiif. protect the same trees, saplings, and jtollards from sheep, cattle, and other animals. And will cultivate and manage Cultivate farms the said farm and lands in a good and husbandlike manner, nur!^"" *"""' And will not plant on any part of the said lands two crops of Not to plant 1 , 4.1 i. ' 1 -i. .. • ■ K ^ more than two wheat, nor more than two wiiite straw crops in succession. And wiu-at crops, will not in any one year have more than three-lifths of the AViii not have arable land under corn or seed crops of any kind. And will, in iTi'iUs indor com' each and every year, have at least one-fifth under clover and '^"'' ^*'" ''"^'»-" 1 1 i-f. 1 1 J. A 1 n i^ one-fifth under grass seeds, and one-iiltii under roots. And will not mow any clover, and oue- ])art of the meadow or i)asture land hereby demised more than h/'J'uu'i'-T roots. •I . « 1 11 • • Not to mow more once in any year. And will, at the proper tune m each year, than ouceayear. and in a husbandlike manner, lay and sju'ead u{)on the meadows or pasture land which may have been mown a sufficient cpiantity of good farmyard manure, or other i"° ""'""■'^ •^^''■■'■y manure of equal quality. And will not plough up or convert 'Not io plough up into tillage any j)art of the meadow or pasture land hereby J.'i'nd™''''*'"**' demised without the consent in writing of the lessee, his ^'u'' '<> •i""* heirs, and assigns. And will not allow any thistles, nettles, secd."^"' ^' 298 APPENDIX OF FORMS. To leave straw, Jcc, on premises CHAP. T. or docks to seed on any part of the said farm, or any weeds To consume nil ill tlic hedges, ditclies, and waste lands. And will consume fodcier, hay, 4c., upon the said farm all the fodder, liay, straw, haulm, and roots of every description, which shall be grown upon the said farm, except tons of i:)otatoes, tons of hay, and tons of straw, which may be sold in any year, the lessee, his executors or administrators, undertaking to lay or put upon the said farm a quantity of manure erpial to the value of the said produce which may be sold. And will on the day of , and on each subsequent day hereby appointed for payment of rent, deliver to the lessor, his heirs or assigns, an account of the quantity of produce sold, and the value of artificial manure laid and put upon the farm and premises since the commencement of the tenancy or the last payment of rent. And at tlie ex|)iration of the said lease will leave on the premises to be valued one-tenth of the hay and straw got in during the previous year, and will not remove any farmyard manure, dung, or composition whatever, but will leave the same for the lessor, his heirs and assigns. And will, during months previous to the expiration of the lease, permit the lessor, his heirs and assigns, to enter upon the farm and premises to plough or work any land, to {)lant any seeds, and to cultivate and manage the said farm as he and they shall think fit. And will not graze the meadow land after the day of , or the young seeds after the day of , previous to the expiration of the lease. And will plough and jtroperly manage the stubbles, plant the corn, irrigate the meadows, and do any other work which the lessor, his heirs and assigns, shall by writing under his or their hands require to be done previous to the expiration of the lease. And will at all times during this present lease permit the lessor, his heirs and assigns, and all persons autliorised by him or them, to enter and, remain upon the said premises, to preserve the game and fish, thereon. And will give to the lessor, his heirs and assigns, immediate notice of any person or persons who shall hunt, fish, shoot, or sport upon the said farm and premises. And will ])erniit the lessor, his heirs or assigns, to bring any action or ])roceeding in the name or names of the lessee, Ids executors, administrators, or assigns, against any person or persons hunting, fishing, shooting, or sporting upon the said farm and premises. And will permit the lessor, and all persons To permit lessor authorised by him or them, to enter upon the said premises To ^repair after and view the condition thereof ; and will immediately repair notice. the farmhouse and buildings, and the gates, stiles, rails and pale fences, and will clip and trim the hedges, repair the roads and bridges, scour and clear the ditches and water- Preservatlon of game, &c. AGRICULTURAL LEASE FOR TWENTY-ONE YEARS. 299 courses, and do all otlicr works which the lessor, his licirs < n\i*. i. and assigns, shall by notice in writing refjuire to be done ; • and if the lessee, his executors, administrators, or assigns shall neglect to do such repairs, scouring, cleansing, and works within one calendar month after such notice as afore- said, the lessor, his heirs and assigns may do the same, and may recover from the lessee, his executors, adminis- trators, and assigns the costs of doing the said repairs, scouring, cleansing, and works. And in each year, when re- quired by the landlord, do one day's team-work, in respect of every sum of ;^5o or fraction of ;^5o payable by the lessee as rent. And will at the expiration of the said lease surrender To siirreny and administrators, covenant with the lessee, his executors, '"'"°'^' administrators, and assigns in manner fi)llo\ving : — That he, the lessor, his heirs and assigns, will keep the outer walls and roofs of the said farmhouse and buildings in good repair, order, and condition. And will, within miles from , provide the timber in the rough, bricks and lime necessary for repairing the inside of the farmhouse, and of all buildings on the said farm, and the gates, stiles, rails and pale fences, hedges, ditches, watercourses, roads, bridges, and every part of the said premises, and that the lessee, his executors, administrators, or assigns, paying the rents hereby reserverl, and performing and observing the covenatits therein contained, may peaceably hold and enjoy the said prenuses during the said term without any interruption by the lessee, liis heirs, or assigns, or any person or persons lawfully claim- ing through him, them, or any of them. All valuations to be made under or by virtue of these Valuations, presents shall be made by two persons, one to be named by the lessor, his heirs or assigns, and the other to be named by the lessee, his executors, administrators, or assigns. If and whenever any dispute shall arise between .Arbitrations, the lessor, his heirs and assigns, on the one part, and the lessee, his executors, administrators, or assigns, on the other part, touching these presents, or anything herein-contained, or 300 APPENDIX OF FORMS. ctiAP. 1. the construction hereof, or any matter in any way connected witli these presents, or tlie operation hereof, or the rights, duties, or liabilities of either party in connection with tlie pre- mises, then, and in every such case, the matter in dillerence shall be referred to two arbitrators or their umpire, pursuant to, and so as with regard to the mode and consequence of the reference, and in all other respects to conform to the provi- sions of the " Common Law Procedure Act," 1854, or any then subsisting statutory modifications thereof. AuT. iioia Act " The Agricultural Holdings (England) Act," 187=;, shall nut iipply to these presents, in witness, ccc. Schedule. iiol to ai>i)ly. 7. Coal Lease iindtr the Settled Estates Act, 40 A 41 Yict. cap. 18 ( ). This indenture, made the day of 18 . As to the terms and provisions hereof with the approbation of the Honour- able Sir , one of the judges of the High Court of Justice, as appears by the certificate of the Chief Clerk, dated the day of 18 , and made in pursuance of an order made on the day of , in the matter of an Act passed in the session of Parliament held in the 40th and 41st years of Her j)resent Majesty, the short title of which is " The Settled Estates' Act," 1877 ; and as to the persons who are named as lessors, subject to an order of the said Court to be obtained for that purpose in the said mutter, and which order is intended to be endorsed hereon between AB and CD, liereinafter referred to as the lessors of the one part, and EF, hereinafter referred to as the lessee of the other part. Witnesseth that, in consideration of the rents hereinafter reserved, and of the covenants by the lessee hereinafter con- Lessors in tained, they, the lessors, in exercise of the powers vested txeiciseo orici. -^^ tlieui by the said order of the day of 18 , Demise to Jo hereby demise unto the lessee, his executors, administra- tors, and assigns. All that seam or bed of coal called I'arceis. witliiu , and under the pieces or parcels of land situated in the parishes of , in the county of , delineated in the plan drawn on the back of the skin of these presents, and therein coloured . Together with liberty for the lessee, his executors, administrators, and assigns, without entering upon the surface of any other part of the said pieces or parcels of land excei)t the pieces of land ]{i?lit toenter to coloured in the said plan, to search for, win, get, work, bearcL for coal. • ^ ^■ c ^y • i i i i raise, carry away, and dispose 01 the said coal hereby demi.sed. And for the purposes aforesaid, or any of them, to enter upon any part of the surface of the said COAL LEASE UNDEH THE SETTLED ESTATES ACT. 301 pieces of land coloured in the said plan, but not crap. i. elsewhere ; and therein or thereupon to sink, erect, maintain, to mnke shafts, .ind use any pits, sliafts, engine-houses, Iniildings, l)rick- *c. kilns, pit-hills, spoil-banks, road.s, railways, reservoirs, wattT- courses, drains, and machinery, and to dig and get stone, brickclay, sand, and other inati-rials, and to dress the said stone, and burn tiie said brickclay, sand, and other materials into bricks, the said stone and bricks to be used in and about the said mine and works, but not for any other purpose, and to construct, make, maintain, and do all other works and things which may be necessary or convenient. And below to niak.> levels, the surface of the said pieces or parcels of land coloured iinfts, a;o. to drive, make, erect, maintain, and use any levels, drifts, tunnels, airways, inclined planes, railways, tramways, horse- ways, roads, drains, steam-engines, pumps, and underground works whatsoever which the lessee, his executors, administra- tors, and assigns, shall find or consider necessary or conveni- ent. And also, with or without locomotive engines, horses, waggons, and carts, to have free ingress, egress, and regress to inpress. epress. and from the said mine and works. And for that purpose """^ regress, to enter upon any part of the surface of the said pieces or parcels of land coloured , to make such waggon-road.'^, tramways, or railways, and approaches to the said mine and To make tmra- works, and to do all reasonable acts and things necessary or ^*"^^' proper for carrying away the said coal. And also with Ventilating liberty to and for the lessee, his executors, administrators, ^''"f"'- and assigns, to enter upon the surface of the said pieces or parcels of land, or any part or parts thereof, not being or forming part of the land called Park, coloured in the said i)lan, to sink such shafts as may be necessary for the proper ventilation of the said mine and works. And also To build cottage?, for the accommodation of the persons employed in or about the said mines and works, to erect not more than loo cot- tages upon the piece of ground coloured in the said plan, and to erect liot more than six messuages or tenements m or upon some part of the said piece of land coloured on the said plan, he, the lessee, his executors. Lessee to give administrators, or assigns, first giving one calendar month's "^'J.^* '" °'^"'"" notice in writing to the respective tenants and occupiers of the lands to be entered u[)on or used in exercise of the liberties hereby granted, or leaving the same for tiieni at their respective usual places of abode, and specifying in every such notice the names or situations of the fields or field and quantity of land intended to be entered upon or used by the lessee, his executors, administrators, and assigns, and also making full compensation to the respective tenants or occu- j^, ,j,nke com- piers for the time being of the land and premises so en- i'<;u»aiiou. 302 Ai'ri:NDix of forms. owersand liberties hereinbefore contained, every payment of such royalty to be made on such of the said days hereinbefore appointed for payment of rent as shall occur next after the said right of outstroke shall have been exercised. Provided always, and it is hereby agreed and directed, that the amount of footage rent which may from time to time be payable on any of the said quarterly days of payment, under the reserva- tion hereinbefore contained, shall be ascertained in manner following : The quantity of coal gotten in the i)receding three calendar months shall be ascertained by measurements made underground, such measurements to be taken in feet and fractions of one foot down to one inch, but not less ; and the acreage or superficial measure, and tlie thickness of the coal, shall be measured at right angles to one another, so as to ascertain the true cubical contents of the coal gotten ; and the ribs or pillars of coal to be left, in pursuance of the covenant hereinafter contained, shall be omitted from such measurements ; and in measuring the thickness of the coal, " Bat," or unmarketable coal, shall not be taken into account ; and in measuring the acreage or superficial measure, faults shall not be included, and a proper allowance shall be made fur inferior coal, such allowance in case of difference to be settled by two referees, or their umpire, to be appointed under the clause for arbitration hereinafter contained. Pro- vided always, and it is hereby agreed and declared, that the lessee, his executors, administrators, and assigns, may in every year of the said term, work, and get, without paying any footage rent for the same, such a quantity of the said coal hereby demised as at the aforesaid footage rents would yield a rent equal in amount to the certain yearly rent herein- before reserved as aforesaid for such year or years respectively. Average clause. Provided always, and it is hereby agreed and declared, that ' if and whenever the lessee, his executors, administrators, or assigns, shall for any one quarter of a year have paid the certain or minimum rent then payal)le without having actually gotten in such quarter of a year such a quantity of coal as, according to the footage rent hereinbefore reserved, would have produced the certain quarterly rent then payable, and the lessee, his executors, administrators, or assigns, shall in any subsequent quarter or quarters of a year get such a quantity COAL LEASE UNDER THE SETTLED ESTATES ACT. 305 of coal as, at tbe footage rent aforesaid, would produce a rent <. map i exceeding the certain quarterly rent payable in respect of such subsequent quarter or quarters, the lessee, liis heirs, administrators, and assigns, sliall not be liable to pay any rent, except the certain quarter's rent for the time being payable, for so much of the coal so gotten as, at the footage rent aforesaid, would make up the deficiency of any preceding quarter or quarters of a year, but no excess of footage rent paid for any preceding quarter of a year shall be allowed to- wards making up any deficiency in a subsequent quarter of a year. And the lessee doth hereby for himself, his heirs, covenants by executors, and administrators, covenant with the lessors, their '*^'"^<^- heirs and assigns, in manner following : — (That is to say), that he, the lessee, his heirs, administrators, or assigns, will pay the said several rents and royalties hereinbefore reserved and For paymont of made payable as aforesaid, on the days, at the times, and "^°'" in the proportions and manner hereinbefore mentioned and apportioned, without any deduction or abatement whatsoever for taxes or otherwise (except the landlord's property tax). And furtiier, that he, the lessee, his executors, administrators, and assigns, will, from time to time, and at all times during tlie continuance of the said term, pay, bear, and discharge all land-tax, and all other taxes, tithes, rent-charges, assessments. Taxes, and impositions whatsoever, parochial, parliamentary, or otherwise, now imposed, or hereafter to be imposed, in respect of the said premises, or upon the several rents or royalties, or upon the works to be carried on in pursuance of these presents, or upon the lessors or tenant, in respect thereof (except the landlord's property tax), and will at all times keep indemnified the lessors, their heirs, exe- cutors, administrators, and assigns, therefrom, and also will, preservation of in taking and breaking up under the liberties hereby ^'*''- granted, any ])art of the said lands for any of the works hereby authorised, remove the soil therefrom, and pre- serve the same on some convenient part of the said lands for the benefit of the lessors, their heirs and assigns. And Towoiktoai. also will forthwith commence, and afterwards with all due diligence and without delay or intermission, continue. to open and work eiFectually the said coal hereby demised, according to the best improved system of working mines of a similar nature, and to the satisfaction of the lessors, their heirs and assigns, and to sink, make, erect, construct, maintain, and use such pits, shafts, steam-engines, winding gear, drifts, levels, works, ami apparatus, as shall be necessary or jiroper, and of tlie best and most approved construction. And also Avill, in making and sinking under the liberties hereby granted U 3o6 APPENDIX OF FORMS. CHAT. I. Supporting l>it Repairs. Leavin;.' radius of too yards. 50 yards To use stone, ic. uud uot to Still. As to adjoinin lands. any pit in the said lands, well, and sufficientlj', and in a work- manlike manner, line and support the sides thereof (except in the several places where the same shall pa.ss through hard rock) with iron tubing or brick-work, with stout and substantial oak-curV)s when necessary. And will during the said term keep the same in good rei)air and working condition. And alsii will leave all the coal which lies within a radius of one hundred yards from the walls of any shaft or pit unwrought and uiigotten, save only by cutting and driving tlie necessary Leiving pillar of roads through the said excepted coal. And also will leave a rib or pillar of coal, of not less than fifty yards wide, ex- tending between the main working shafts and any air-shaft which may be sunk, unwrought and ungotten, save and except by cutting or driving through such rib or pillar openings of not more than four yards wide, and whose centres shall not be nearer to one another than twenty yards. And also will use all the stone which may be dressed, and all the bricks which may be made by the lessee, his executors, ad- ministrators, and assigns, under the liberties hereby granted for the purposes of the colliery and works, or in building the cottages and houses to be built under the liberties hereinbefore contained, and will not sell any stone, brick, clay, or sand dug from the premises, or any bricks made therefrom. And also will at the expense of the lessee, his executors, adminis- trators, or assigns, fence off such parts of the said lands as shall hereafter be used for colliery purposes, or for any other of the purposes of these presents from the adjoining lands, and will hang sufficient gates in the fences for the convenient passing and repassing of the owners and occupiers of the said adjoining lands, who and whose servants and workmen shall always be at liberty, whether on foot or on horseback, with or without horses, cattle, carts, and carriages, to pass and repass through such gates, and over and across all ways or roads made or to be made, under the liberties hereinbefore contained, doing thereby as little damage as may be. And will throughout the said term, and at the like exj)ense, keep the said fences and gates in such repair as afore- said. And that the lessee, his executors, administrators, and assigns shall and will from time to time and at all times during the said term, make reasonable and fair satisfaction and compensation to every person whomsoever legally entitled thereto, on account of any injury or damage which may be sustained by him or her in consequence of the said works, or in execution of the powers, authorities, and liberties herein- after contained. And will defend, keep harmless, and in- demnified, the lessors, their heirs and as.sign.s, from and against all actions, claims, and demand.'^, costs, damages, and To indeoinif/ lessors. COAL LE.VSE UXDEU THE SETTLED ESTATES ACT. 307 expenses by reason or in consequence of any sucli injury or ciiai'. i. damage, or by reason or in consequence of the breach of any of the covenants on the part of the lessee, his executors, ad- ministrators, and assigns herein contained or in anywise relating thereto. And also that he the lessee, bis execu- tors, adniinistrators, and assigns will so construct and use all furnaces in or upon the said lands as that the same sliall effectually consume their own smoke. And will not in To consume or upon any part of the said lands erect or use any coke-oven or blast-furnaces, and will not make any coke in open fues. And also will not erect or use works for the making of gas, or t)il or chemical works of any kind or description whatsover. And will not do or suffer to be done anything which may in- jure or damage the neighbouring and adjoining lands of the lessors and other persons, and will keep the lessors, their heirs and assigns, indenniitied against all actions, claims, and de- mands by reason or in consequence of any injury or damage (whether of a residential or other character) which the said mine and works may do to the adjoining and neighbouring lands of tbe said lessors and other persons. And will not Not to enter for any ])urpose whatever enter upon Park, or any part thereof. And will use his and their utmost endea- Not to trespas vours to prevent the workmen and others employed in and about the said works from tresi)assing in or upon the neigh- bouring or adjoining lands of the said lessors and other persons, and particularly in search of game. And also will, during the To keei> piims said term hereby granted, keep accurate and correct plans and accounts of the workings of the said mine and premises, and of the coal, stone, brick-earth, clay, and sand, won and raised therefrom. And will, within three calendar months after the finding thereof, mark on such plan any faults which may be found in the said coal. And will permit and suffer the lessors, their heirs and assigns, and his or their agents or agent, from time to time, and at all reasonable times during the said term, to have free access to examine and inspect the said plans and accounts, and to take copies of the same, or of any part thereof. And that he, the lessee, his executors, administrators, or assigns, will, on the day of , the day of , the day of , and the day of in every year, and also on the deter- mination or expiration of the term hereby granted, de- liver to the lessors, their heirs and assigns, or their agent for the time being, true and fair accounts in writing of of the quantity in acres, roods, jjoles, and yards, and the thickness in feet and inches, and of the cubical contents of all the coal gotten from the said mine in the preceding three calendar mouths. And also a true and full account of iind UCCOUUt:> &c. 3o8 ArrEXDix of forms. I'liAP. I. all the coal, niinerals, and other substances which shall have been brought to the surface by means of the pits or shafts to be sunk in exercise of the liberties hereby granted from any other mine, with all proper details, showing when such coal, minerals, and substances respectively were brought to the surface, and also a correct plan and admeasurement drawn upon a scale of not less than inches to an acre of the surface of the land, under which the said coal shall have been gotten, and will verify such accounts and ma{)s from time to time in writing under the hand or hands of tlie lessee, his executors, administrators, or assigns, and his or tlieir ciiief or oidy agent. And will, at the end or other sooner determination of the said term, give up to the lessors, their heirs or assigns, the said plans, or true and authenticated copies thereof, in To permit lessor good and perfect condition. And also will, at any time or times ' during the said term, permit and sutler the lessors, their heirs and assigns, and their agent or agents, servants and work- men, during the continuance of this present demise, con- veniently to descend into the said mine by any pit or shaft, pits or shafts, used for the working thereof, to view and examine the workings of the said mine, and to make measure- ments and diallings, and to adopt any other proper means to ascertain the real state or condition of the said works and premises, and in so doing to use all or any of the horses, engines, machinery, and apparatus used in connection with the said works, and to have the assistance of any of the agents, workmen, and servants employed in the said works without paying or making compensation for such use and assistance. And also in like manner conveniently to ascend and return from the said works, such person or persons so descending and returning, interrupting as little as may be the N.it to assign. Carrying on of the said works. And further, that the lessee, his executors, administrators, or assigns, will not at any time assign, or underlet, or otherwise part with the said demised premises or any part thereof, for the whole or any ])art of the term hereby granted without the consent in writing of the lessors, their heirs or assigns, first had and obtaineavonient," anil caused either bv columns of coal left for the support the sniallness of tlie colunuis or the of the roof of the mine, acconi- softness of the pavuuient. 3l8 APPENDIX OF FORMS. (•iiAT 1. posts, or stones, accurately defining the boundaries of the said mineral substances. And also shall and will, during the said term hereby "ranted, keep accurate and correct plans and accounts of the workings of the said mines and premises, and of the mineral substances won or raised therefrom. And shall and will permit and suffer the said EC, his heirs and assigns, and his or their agent or agents, from time to time, and at all reasonable times during the said term to have free access to examine and inspect tlie said plans and accounts, and to take copies of the same or of any part thereof, and that he, the said CM, his executors, administrators, or assigns, will, on the day of , and the day of in every year, and also on the determination or expiration of the term hereby granted, deliver to the said EC, his heirs or assigns, or his or their agent, for the time being, true and fair accounts in writing containing the quantity and weight of all the min- eral substances which during the preceding lialf-year shall have been worked, gotten, or raised under or by virtue of these presents, and of the quantity of coal used for any engine or engines which may be erected as aforesaid, and will verify such accounts from time to time in writing under the hand or liazids of the said C^I, his executors, administrators, or as- signs, or his or their chief or only agent, "And will, on the day of , in every year, and on the expiration or determination of the said term hereby granted, deliver to the said EC, his heirs or assigns, or his or their agents, a true copy of every such plan as aforesaid. And will at the end or other 60(mer determination of the said term give up to the said EC, his heirs or assigns, the said plans, or true and authenticated copies thereof, in good and perfect condition. And also that all waggons and other carriages, corves, boxes, or tubs respectively used by the said CM, his executors, ad- ministrators, or assigns, in drawing out or carrying away the said mineral substances hereby demised, shall respectively be of the same (and that a certain and known) size or gauge, and shall not be altered unless two calendar months' notice in writing be given to the said EC, his heirs or assigns, or his or their agent, of the intended alteration, and such alteration shall be made only at the end of such two calendar months. And also that when and so often as the said EC, his heirs and assigns shall think fit such waggons, carriages, corves, boxes, or tubs may be gauged or measured at the said works by him or them, or his or their agent or agents, and if the same or any of them shall be found cajjable of containing LEASE OF MIXES. 319 more mineral substances than tlie acknowledged and specified oiiai'. i. quantity they shall be considered and deemed to have carried such over-meusure for twt) calendar months next ])receding such measuring thereof, and such quantity or measure siiall be accounted for accordingly unless the same shall have been gauged or measured within the space of two calendar months previously, and then only from the time of such last previous measurement. And also shall and will at any time or times during the said term permit and suffer the said EC, his heirs or assigns, and his and their agent or agents, servants, and workmen, during the continuance of this present lease, to descend into the said mines by any pit or pits used for the working thereof, whether Avithin the limits afore- said or not, to view and examine the workings of the said mines, and to measure and take plans of the same respectively, and to adopt any other })roper means to ascertain the real state or condition of the said works and premises, and in so doing to use all or any of the horses, engines, machinery, and apparatus (whether within the limits aforesaid or not) used in connection with the said works, and to have the assistance of any of the agents, workmen, and servants employed in the said works without making or paying compensation for such use and assistance. And also in like manner conveniently to ascend and return from the said works (such person or persons so descending and returning intercepting as little as may be the carrying on of the said works). And also will at the end or other sooner determination of the said term hereby granted peaceably and quietly deliver up the works and premises in good and sulli- cient repair, state, and condition in all things. And will at the end or sooner determination of the said term hereby granted, if required, by notice in writing to be given to the said CM, his executors, administrators, or assigns, or left for him or them at the counting-house or office on the said demised premises twelve calendar months previously to the expiration of the said term, or other sooner determination thereof, if such determination does not arise by virtue of the proviso for re-entry hereinafter contained, deliver up to the said EC, his heirs or assigns, possession of any machinery, rails, tramruads, or other apparatus then standing upon or within the land to which the present lease or grant extends, or such part of the said machinery, rails, tramroads, or other aj^paratus as may be specified in such notice, on being paid ft)r the same at a valuation to be made by two arbitrators or their umpire, to be appointed as hereinafter mentioned. And that the said CM, his executors, administrators, and 320 APPENDIX OF FORMS. assigns shall and will, from time to time, ami at all times dur- ing the said term, make reasonable and fair satisfaction and compensation to every ])erson whomsoever legally entitled thereto on account of any injury or damage which may be sustained by him or her in consequence of the said works, or in the execution of the powers and authorities herein- before granted. And will keep indemnified the said EC, his heirs and assigns, from and against all actions, costs, damages, and expenses, by reason of any such injury or damage, or by reason of the breach of any of the covenants on the part of the said CM, his executors, administrators, and assigns herein contained, or in anywise relating thereto. And also will not at any time assign or underlet or other- wise part with the said premises or any part thereof for the whole or any part of the term hereby granted without the consent in writing of the said EC, his heirs or assigns, first had and obtained. Provided always that in case all or any of the aforesaid rents or royalties respectively hereinbefore reserved and made payable shall be unpaid in part or in the whole for the space of twenty-one days next after the same shall become due respectively, then and in every such case it shall be left for the said EC, his heirs or assigns, or his or their agents, to stop and hinder the loading or sending away of any of the mineral substances from off the said premises, and also to enter upon and distrain all and every or any of the mineral substances, and also the horses, carts, carriages, engines, machinery, implements, tackle, and materials used and em- ployed in and about the said works and premises, and also all goods, chattels, and effects whatsoever in or upon the said lands, hereditaments, and premises, and the distress and distresses then and there found, to take, lead, and carry away, and to sell and dispose of the same in like manner, as in cases of distresses for rent reserved in common leases for years, and out of the money arising by such sale (if any) to retain and take all arrears of the said rents and royalties, and also the costs and charges of making and keeping such distresses, and of the sale thereof rendering the overplus (if anj') unto the said CM, his executors, administrators, or assigns. Provided also, and these presents are upon this express con- dition, that in case all or any of the rents or royalties herein- before reserved or made payable shall be unpaid in part or in ■whole by the space of thirty days next after the same shall l)ecome payable, and the same shall be demanded on the ex- piration of these days, or any time afterwards, and shall not be paid at the time of such demand, or in case the said CM, LEASE OF MINES. 32 1 liis executors, administrators, and assigns shall not perform and keep the several covenants hereinbefore contained, or in case he or they shall be found or dechired bankrupt, wlietiier any dochiration or adjudication in bankruptcy shall be after- wards superseded or annulled, or not, or shall either volun- tarily or involuntarily do or suffer to be done any act, matter, or thing whereby or in consequence whereof this present lease or the instrument of the said CM, his executors, administrators, or assigns, in the premises hereby demised, shall become vested ill any person or persons whomsoever, excejjt by bequest or representation, as executors or administrators without such consent as aforesaid, then and in any of the said cases it shall be lawful for the said EC, his heirs or assigns, to enter into and upon and retain possession of the said premises, together with all engines, tools, machinery, and other working gear and mineral substances and other matters, then being on the said premises, for his and their absolute use and benefit, with- out making any compensation whatsoever for the same, anything hereinbefore contained to the contrary notwith- standing. And it is hereby agreed that in case any re-entry shall be inade under the proviso lastly hereinbefore contained, there .shall be payable by the said CM, his executors, administrators, and assigns, in addition to the rent or royalty then due in respect of the said premises, a proportionate part of the accru- ing rent or royalty for the then current quarter of a year from the last quarterly day for payment up to the day on which such re-entry shall be made. And the said EC doth hereby for himself, his heir;', executors, and administrators covenant with the said CM, his executors, administrators, and assigns. Tliat it shall be lawful for the said CM, his executors, administrators, and assigns, at all times during the said terms of sixty years (determinable as hereinafter is mentioned), quietly to hold and enjoy the premises hereby demised, or intended so to be, without any interference by the said EC, his heirs or assigns, or any person or persons lawfully or equitably claiming through, under, or in trust for him or them. And further, that he, the said CM, his executors, adminis- trators, or assigns, at any time or times within the space of six calendar months after the expiration or other determina- tion of the said term (except the same shall be determined by re-entry made by the said EC, his heirs or assigns, under the proviso lastly hereinbefore contained, the said CM, his executors, administrators, or a'-signs having first paid and dis- X 322 APPENDIX OF FORMS. cliiirged the several rents and royalties which shall by virtue of these presents be payable, and having observed and per- formed all and singular the covenants and conditions on his or tlieir parts hereinbefore contained), may take away, have, jind enjoy all such mineral substances as shall at or before the expiration or other determination of the said term have been gotten from the said premises. And also within such space of time may use and repair all ways and roads which may be necessary or requisite for the removal of such mineral substances, and nuiy take away for his and their own use all such other erections as shall not be built of stone or brick (although the same may be roofed with slate or tile), and all steam and other engines, machinery, and tackle, and all battens or rollers and stoppings of wood, or stone-work, air- tubes, and air-furnaces, as he, the said CM, his executors, administrators, or at^signs, may have constructed or built upon the said premises during the continuance of the said term, and shall not be taken by the said EC, his heirs or assigns, at a valuation under the provision for that purpose hereinbefore contained. Provided always that in case the said CM, his executors, administrators, or assigns shall be desirous of putting an end to the term hereby granted at the expiration of tlie first fifth, and every subsequent fifth year thereof, and shall give unto the said EC, his heirs or assigns, not less than twelve calendar months' notice in writing previous to the end of any such fifth year thereof, and shall at or before the expiration of such fifth year duly pay the several rents and royalties hereby reserved and made payable, and perform and fulfil the several covenants herein contained, and on his and their parts covenanted to be performed and fulfilled, then and in such case at the end of such fifth year of the said term hereby granted, this present lease shall absolutely cease and deter- mine. Provided also that if at any time during the continuance or after the determination of this present lease, any dispute, doubt, or question shall arise between the said EC, his heirs or assigns, and the said CM, his executors, administra- tors, or assigns, or any of them, either respecting any matter or thing whatsoever arising out of or connected with this pre- sent lease, or any of the covenants, sti{)ulations, and {»ro- visions herein contained, then every such dispute, doubt, or question shall be referred to two arbitrators, or their umpire pursuant to, and so as with regard to the mode and conse- quence of the reference, and in all other respects to conform to the provisions in that behalf contained in the Common Law LEASE OF A MANSION HOUSE. J-J Procedure Act, 1S54, or any then subsisting statutory modi- fication thereof. And upon every or any such reference, the arbitrators and unipire shall respectively have power to examine the parties and witnesses upon oath or affirmation, and either to fix, settle, and determine the amount of costs of the reference, and award respectively or incidental thereto, to be paid by both parties or eitlier party, or to direct the same to be taxed either as between solicitor and client or otherwise, and to direct and award when and by and to whom such costs shall be paid. In witness, »kc. 9. Lease of a Mansion House. In exercise .of a poiver. This indenture, made the day of iS , be- tween AF of the first part, and YFB of the second part, and T of the third part, Witnesseth that, in consideration of the rent hereinafter reserved, and of the covenants by the said T hereinafter con- tained, and in exercise of a power contained in the will of JB deceased, dated the day of , and of every power enabling him in that belialf. He, the said AF, with the consent in writing of the said VFB, testified by his being made a party to and executing these presents, doth by this present deed or instrument in writing, sealed and delivered b}' him, the said AF, in the presence of and attested by the two credible persons whose names are intended to be endorsed hereupon as witnesses to the sealing and delivery of these presents, limit and appoint by way of (c) demise and lease unto the said T, his executors, administrators, and assigns, all that mansion-house, &c. (parcels). Together with all ^•"■'^*^'^- rights, easements, fixtures, and appurtenants thereto belonging or usually occupied or enjoyed therewith. To have and to Habendiim. holil the premises hereinbefore expressed to be hereby demised unto the said T, his executors, administrators, and assigns, for the term of years (c/) from the day of 18 , determinable nevertheless as hereinafter mentioned, yielding and paying therefor during the said term the yearly Ke''''c"''"'"' rent of £ by equal quarterly payments, on the day of the day of the day of and the day of in each year, the first quarterly payment to be (c) As to the operative words of (d) As to the commencemeut of a lease see ante p. 42. terms see ante p. 63. ArPKNDIX OF FORMS. (11 A P. I. I'roportionate jmrt in tlie event of re-eutry. Covenants by lessee. llepair. Paint. Keep garden in good order. Permit lessor to pnter and inspect. Kepair upon three moutlis notice. made on tlie day of next, and the la.st quarterly ])avment to be made in advance on the day of next, immediately preceding the expiration of the said term ; and also yielding and paying, in the event of and immediately upon the said term being determined by re-entry, under the provision liereinafter contained, a proportiotiate part of the said rent for the fraction of the current quarter of a year up to the time of such re-entry. And the said T doth hereby for himself, his heins, executors, and admini.strators, covenant with the said AF, his heirs and assigns, in the manner fol- lowing (that is to say), that he, the said T, his executors, ad- ministrators, or assigns, will pay the said rent hereinbefore reserved, and made payable as aforesaid on the days, at the times, and in manner hereinbefore mentioned. And also will, during the continuance of the said term, pay all the tithe, or rentcharge in lieu of tithes and land tax, and all rates, taxes, charges, and assessments whatsoever now imposed, or hereinafter to be imposed, in respect of the said premises hereby demised, or upon the lessor or tenant in respect thereof, except the landlord's property tax. And also will throughout the said term, at his and tlieir own expense, without being thereunto required, well and suffi- ciently repair, maintain, and keep the said premises, and all the gates, stiles, bars, pales, posts, rails, hedges, ditches, drains, wells, banks, watercourses, grips, and fences thereto belonging, in good and substantial repair and condition (e). And particularly will paint, with two coats of good oil colour, and in a workmanlike manner, in every third year of the said term, all the outside wood, iron, and other work pre- viously or usually painted. And also will, during the said term, keep the said garden and pleasure-grounds belonging to the .said mansion-house well stocked, cropped, and manured, and in proper order and condition, and in all respects properly cultivate and manage the same. And also will permit the said AF, his heirs and as.signs, and all persons authorised by him or them, twice in every year, or oftener during the said term, at all reasonable hours, to enter into the said premises to view the condition thereof, and to give or leave notice in writinf upon the said premises to or for the said T, his ex- ecutors, administrators, and assigns, of all defects and wants of repair then found ; and also will, within calendar months after every such notice, well and sufficiently repair and make good such defects and wants of repair, whereof notice (c) Notwithstanding the covenant the case of fire. Leeds v. Chatham, to insure, the tenant will, under i Sim. 146 ; LofFt v. Davis, 1 E. & this covenant, be liable to repair iu E., 474. LEASE OF A MANSION-HOUSE. 325 shall have been so given or loft. And also uill, throughout cuw i the said term (/), at his and their expense, keep the said mansion-house, and all other the buildings on the said pre- mises hereby demised, including the fi.\tures, insured in the joint names of the said AF, his heirs and assigns, and of tlie said T, his executors, administrators, and assigns, against loss or damage by tire, in the insurance otlioe, or some other responsible insurance otlice in London or Westminster, to be ai)proved by the said AF, his heirs or assigns, for a sum not less than £ . And also will, when thereunto required (<;), ''■'O'lucp jmiicics ■*•''' ami rt'ccipts. produce to the said AF, his heirs or assigns, or his or their agents, the policy or policies of insurance, and the receipts for the premium, and other sums payable for eflecting and keeping on foot tlie said insurance. And also will lay out all the ^-ny <^»'^ ''"'"'■•. moneys which shall (It) be received under or by virtue of any itiiiuiiugiire- such policies respectively, in rebuilding, reinstating, replacing, "•'="■■»• or repairing the premises, or such part thereof, as shall have been destroyed or damaged by fire. And if the same moneys shall be insufficient for the purpose, will provide out of his or their own moneys such further sums as may be required, and will, with all convenient speed, expend the same for the purpose aforesaid. And also will not use or suffer the said ^'^^ premises »» messuage or ^Ji'emises, or any part thereof, to be used for a school or boarding-house, or for any trade or business, or otherwise, than as a private dwelling-house only, without the previous license in writing of the said AF, his heirs or ' assigns. And also will not, until the previous license of the Wiii uot assit'". said AF, his heirs or assigns, assign, underlet, or part with the possession of the said jjremises, or any ])art thereof. And Deliver up pre- •11 4. il ■ L- 1 i. • i.- f i.1 -1 inises at end of Will, at the expiration or sooner determination of the said term. term, peaceably and quietly, deliver up to the said AF, his heirs or assigns, the said premises hereby demised, in good and sufficient repair and condition in all things. Provided Provision for re- always, and these presents are upon this express condition, that in case the rent hereinbefore reserved or made payable shall be unpaid, in part or in whole, by the space of iliirtj' days next after the same shall become payable, and the same ( f) This covenant should not be prior to this Act, if the breach has omitted, as if it is, the landlord in an been committed after the date of action on the covenant will be uu- the Act. See Page r. Bennett, able to prove the breach. See Doe 2 Giff. 117. As to action of eject- d. Bridj^es r. Whitehead 8 Ad. & meut, see 23 & 24 Vict. c. 126, Ell. 571. s. 2. {g) By 22 & 23 Vict. c. 35, s. 4, a (h) The insertion of this covenant com-t of equity lias power to grant makes the covenant to insure run relief against a forfeiture for breach witli the land. See Vernon v. Smith, of this covenant, even if the cove- 5 B. & A. i. nant is contained in a lease dated 326 AI'PEXDIX OF FORMS. Covenmt by lessor fur quiet enjoyment. cnAi'. I. sliiiU be demanded on the expiration of these days, or any time afterwards, and shall not be paid at the time of such demand, or in case the said T, his executors, administrators, or assigns, shall not observe and perform all and every, or any of the covenants herein ct)ntained, and on his and their part to be observed and performed, tlien, and in any of such cases, it sliall be lawful for the said AF, his heirs or assigns, into all and singular the premises hereby demised, or into any part thereof in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy as in his and their first and former estate, anything hereinafter contained to the contrary notwithstanding. And the .said VFB doth hereby, for himself, his heirs, executors, and adminis- trators, covenant with the said T, his executors, adminis- trators, and assigns, that it shall be lawful for the said T, liis executors, administrators, and assigns, at all times during the said term of twenty years (determinable as hereinafter jnentioned), quietly to hold and enjoy all and every tlie pre- mises hereby demised, or intended so to be, without any lawful interru}>tion or disturbance of or by the said VFB, or the said AF, their respective heirs or assigns, or any person or persons, lawfully or ecpiitably, claiming through, under, or in Tower to either trust, for them, or any of them. Provided always, that in jiiine lease. case the said T, his executors, administrators, or assigns, shall be desirous of putting an end to the terms hereby granted at the expiration of the first ten or fifteen years there- of, and shall give unto the said AF, his heirs and assigns, or shall leave a notice at his or their usual or last known jtlace of abode in England, not less than twelve calendar months' previcms notice of his or their intention so to do, and 'shall pay, or cause to be paid, all arrears of rent, and perform all and every the covenants hereinbefore contained, and on his and their part to be performed, or if the said AF, his heirs or assigns, shall be desirous of i)utting an end to the terms thereby granted at the expiration of the first ten years, or fifteen years thereof, and shall give to the said T, his executors, administrators, or assigns, or shall leave at, or on, some part of the mansion-bouse thereby demised, not less than twelve calendar months' previous notice of his and their intention so to do. Then and in either of the said cases immediately after the expiration of the said term of ten years, or fifteen years, as the case may be, this present demise shall absolutely cease and determine. In witness, &c. SURRENDER OF A LEASE. 327 10. Surrender of a Lease {the Lessor beiiif/ a 2^0'son of nn- soiaul mind). This indenture, made tlie day of 18 , between the said and , now or lately carrying on the bnsiness of copper rollers at , called the Copper Mills, at , in the county of , under the style and firm of JF &, Co., of the one part, and EP, a person of unsound mind, and FP, the committee of tlie said EP, of the other part. Whereas, by an indenture of lease, dated the day of 18 , and expressed to be made between of the one part, and JP of the other part, all those iron mills or plate mills commonly called Mills, with the dwelling-houses, sho[), and garden thereto belonging, situated within the manor and parish of , ill the county of , then in the occupation of or his under-tenants, with the appurtenances (except- ing timber, mines, and royalty of fishing), were demised by the said unto the said JB, his executors, ad- ministrators, and assigns from the day of the date of tlie indenture now being recited, for the full term of four score and nineteen years, if since deceased, IIB, and JB since deceased, or any or either of them should so long live, subject to the yearly rent of £ , and to the covenants and conditions therein mentioned. And whereas the said lease was granted to the said JJ> as a trustee for the said JF ife Company. And whereas the said lease is still sub- sisting upon the life of the said HJi. And whereas the said JF & Company, many years since, converted the said iron mills into c(){)])er mills for rolling or plating coi)per, and substituted machinery adapted to the latter in place of that adapted to the former business. And whereas the said JF & Company liave retired from business, and closed the said mills, the said and have agreed to surrender the said lease, and give up possession of the said leasehold premises and the machinery, articles, and things in or uj)on the same, with the appurtenances (except the several articles and things and their appurtenances mentioned in the schedule hereto), unto the said EP, acting by the said FP, as such committee as aforesaid, and to pay to him, the said FP, as such committee as aforesaid, the sum of £100 in lieu and full satisfaction of all claims for repairs and dilapidations in or upon the said premises. Now this Indenture witnesseth that, in pursuance and performance of the said agreement, and in consideration of the premises, they the said and do and each of them hereby doth surrender and assign unto the said EP, 32S APPENDIX OF FORMS. acting by the said FP as such cumniittee as aforesaid, All those copper mills and plute mills commonly called !Mill.s, and all otlier tlie premises comprised in antl demised by the hereinbefore recited indenture of lease, togetlier with the appurtenances thereto belonging, and the machinery, articles, and things in and upon the same (except the several articles and things, and their appurtenances mentioued in the schedule hereto), to the intent that the estate, term, right, title, and interest of them, the said and , and every of them in the same pi-emises may be absolutely merged and extinguished. And the said and do hereby jointly for themselves, their heirs, executors, and ad- ministrators, and each of them, doth hereby separately for himself, his heirs, executors, and administrators, covenant with the said , his heirs and assigns iu manner follow- ing : — Good ricjlit to surrender ; free from incumbrances ; further assurances. In witness, kc. The Schedule. II. Assignment of Leasehold Projoerty. This indenture, made the day of i8 , between AB of the one part and CD of the other part. Whereas, by an indenture of lease dated the day of 18 , and expressed to be made between xVGF of the one part and WST of the other part, all that messuage or teziement, with outbuildings and appurtenances, being , Avas demised by the said AGF unto the said WST, his ex- ecutors, administrators, and assigns from the 24th day of March 18 for the term of thirty-two years at the rent of £ , and under, aiid subject to the covenants, conditions, and agreements by and in the said indenture of lease respectively reserved and contained. And whereas by divers mesne assign- ments and acts in the law, and ultimately by an indenture, dated, &c., and expressed, Arc, [parties.] The said messuage or tenements and premises, comprised in the herein- before-mentioned indenture of lease, became vested in the said AB for all the residue of the said term of thirty-two years. And whereas the said CD hath agreed with the said AB for the purchase of the said messuage or tene- ment and premises demised by the said indenture of lease for the residue now unexpired of the said term of thirty- two years, and the tenant's fixtures there, at or for the price of £ . Now this indenture witnesseth that, in pursuance and performance of the said agreements, and in ASSIGNMENT OF LEASEHOLD rROrERTV. 329 consideration oi tlie said sum of X , on or before the cxccii- ciiAi". i tiou of these presents, paid by the said CD to tlie said Ali [the receijit, ct'-c.),he, the said Al', doth hercl)y assign unto tiie said CD, his executors, administrators, and assigns. All tliat mes- suage or tenement with tlie outstanding buildiirgs and appur- tenances, and all and singular other the premises by the hereinbefore recited indenture of lease expressed to be de- mised, with their appurtenances and all the tenant's fixtures in and about the said messuage or tenement and premises, and all the estate, riglit, title, interest, term and terms of years yet to come and unexpired, claim and demand, both at law and in equity of him the said AB, in to, out of, or upon the said messuage, tenement, and premises hereby assigned or intended so to be, and every part and parcel thereof. 'J'u have and to hold the said messuage and tenement, and all and sin- gular other the i)rennse3 hereby assigned or intended to be, with their and every of their appurtenances, unto the said CD, his executors, administrators, and assigns, henceforth for the residue of the said term of thirty-two years, at the rent and under and subject to the covenants and conditions by and in the hereinbefore recited indenture of lease reserved, contained, and henceforth on the part of the lessee to be paid, observed, and {)erformed ; And to have and to hold the said tenant's fixtures hereby assigned or intended so to be unto the said CD, his executors, administrators, and assigns absolutely. And the said AB doth hereby for himself, his executors and administrators, covenant with the said CD, his executors, administrators, and assigns, in Tnanner following : — (That is to say), that for or notwithstanding anything whatsoever by the said AB done, or knowingly suffered, the hereinbefore-recited indenture of lease is now a good and efiectual lease in the law of the said premises therein comprised, and that the same is now in full force, and in nowise become void or voidable ; and notwithstand- ing any such thing as aforesaid, all and singular the rents, covenants, and conditions in and by the same in- denture of lease reserved and contained, and on the part of the lessee therein named, his executors, administrators, and assigns, to be jtaid, observed, and performed, have been paid, observed, and performed up to the day of And that notwithstanding any such thing as aforesaid, he, the said AB, now hath full jiower to assign the said premises hercl)y assigned or intended so to be unto the said CD, his executors, administrators, or assigns, in manner aforesaid. And also that it shall be lawful for the said CD, his executors, administrators, or assigns, at all 330 APPENDIX OF FORMS. times liereafter during tlie continuance of the said term of thirty-two years to enter into the said premises hereby assigned or intended so to be, and to occupy and enjoy the same, and to take the rents, issues, and profits thereof, without any interruption, or disturbance whatsoever of or by him, tlie said AB, his executors, administrators, or any person or persons lawfully or equitably claiming or to claim by, from, or under, or in trust for him, them, or any of them, and tliat free and clear, and freely and absolutely ac- quitted, exonerated, and discharged or otherwise by the said AB, his heirs, executors, and administrators, well and suffi- ciently saved, defended, kept harmless, and indemnified from and against all, and all manner of former and other estates, charges, mortgages, and incumbrances already or to be hereafter made, done, committed, or suffered by the said AB, his heirs, executors, or administrators, or by any other per- son or persons lawfully claiming or to claim by, from, or un- der or in trust for him, them, or any of them ; and moreover that he, the said AB, his executors and administrators, and all and every other person or persons rightfully claiming or to claim any estate, right, title, or interest in or to the said premises hereby assigned or intended so to be by, from, through, under, or in trust for him, the said AB, his execu- tors or administrators, shall, and will at all times during the residue of the said term of thirty-two years, upon the request and at the expense of the said CD, his executors, adminis- trators, and assigns, execute all such further assurance for the further assuring the said premises hereby assigned, or intended so to be, with their appurtenances, unto the said CD, his executors, administrators, and assigns, for the then re- mainder of the said term of thirty-two years, as by the said CD, his executors, administrators, or assigns, shall be reasonably required. And the said CD doth hereby for himself, his execu- tors and administrators, covenant with the said AB, his ex- ecutors, administrators, and assigns, that he, the said CD, his executors, administrators, and assigns, shall and will from time to time, and at all times hereafter, pay the quarterly rent of £ , by the said indenture of lease reserved, which, as from the shall grow due and payable in respect of the premises hereby assigned, at such times and in such manner as the same is hereby reserved, and also will observe and perform all the covenants, conditions, and agreements in the said indenture of lease contained, and which, on the part of the tenant, lessee, or assignee, are or ought to be per- formed and observed, and will at all times hereafter keep indemnified the said AB, liis heirs, executors, and adminis- ASSIGNMENT OF LFASEHOM' I'UorKHTY. 331 trators against the payment of tl.e said rent, and the perform- ance and observance of the said covenants, conditions, and agreements, and against all actions, claims, and demands whatsoever on account of the non payment of the said rent, and the non-observance and performance uf the said cove- nants. In witness, kc. (JIIAl- I (332 ) CHAPTER 11. FORMS OF LICENSES. PAGE PAOF. I. Br LESSOR TO EXABLE 2. To CARRY ON PARTICULAR LESSEE TO BUILD AND TRADE 333 CARRY ON TRADE ... 332 3. TO ASSIGN LEASEHOLD ... 333 J. License h>j a Lessor to enable a Lessee to hu'dd and carri/ on, a trade. Know all men by these presents that I, CG, do by this writing give my license and consent to Jll, his executors, administrators, and assigns, to erect and build private dwell- ing-houses u[»on the piece of bind marked in the plan drawn in the margin of these presents with the words " private houses," which piece of land is j)art of a larger piece of land comprised in and demised by an indenture of lease dated the day of , and expressed to be made between me, the said of the first part, of the second part, and the said of the third part, and to erect and build a forge upon the piece of land marked in the same plan with the word " forge," being other part of the said piece of land comprised in and demised by the same indenture of lease, and to erect and build shops and dwelling-houses upon the piece of land marked in the same plan with the word " shops," such last-nientioued piece of land being also other part of the said piece of kind comprised in and demised by the said indentures of lease. Provided that, previous to any erections or buildings, in pursuance of this license, the plans and specifications thereof respectively shall be approved by , or other the surveyor for the time being of my estate. And I further give my license and consent to the said , his executors, administrators, or assigns, to carry on or permit or suffer to be carried on upon the said premises marked in the said plan with the word " shops," any art, trade, or business whatsoever other than the trade of a catgut spinner, hog- skinner, boiler of horseflesh, soapmaker, inciter of tallow, metal founder, tinman, brazier, or any other noxious or FORMS OF LICENSES. ^^^ offensive trade or business. And also to carry on or permit ciiaiv ii. or sufl'er to be carried on upon the said premises marked in the said plan with the word " forge," the trade or business of .1 farrier, blacksmith, and whitesmith, but not any other trade or business. As witness, itc. 2. License to carry on a part'icuUir trade in waiver of a restriction contained in a lease. Memorandum, that I (lessor) do hereby give full liberty and license unto (lessee) of to use, exercise, and carry on, upon the messuage, and tenement, and premises, demised unto hira by an indenture of lease, dated the day of , the trade or business of , and for that purpose if he shall think proper to convert the same into a shop or ■warehouse, for the sale of the several goods, wares, and other things incident, or belonging to the said business of upon this condition, nevertheless, that the said (lessee), his executors or administrators do, and shall before the expiration of the term of years granted to him by the said indenture of lease, reconvert the said premises into a private house or dwelling, and leave the same in such state of repair as is re- quired by the terms of the said lease, in such and the same manner in all respects as if this license had not been given, or the said premises had not been converted into a place for sale of goods, wares, and other things. In witness, kc. 3. License to assign leasehold 2^yopert>/. Whereas, JHF and RTI have made application to AB for Lis special license and consent to assign and transfer, and set over unto a piece or parcel of land or ground situate, lying, and being part of the premises demised by a certain indenture of lease dated, &c., granted by, etc., for a term of ninety-nine years, now or late in the tenure or occupation of the said RH ; Be it therefore known that the said AB liath granted and given, and by these presents doth grant and give unto the said JHF and RH his license and consent to assign, transfer, and set over unto the said so much, and such part or parts of the premises demised by the said indenture of lease as are hereinbefore particularly mentioned and described, and which are now in the tenure or occupation of the said , for all the residue and re- mainder yet to come and unexpired of the said term of ninety- 334 APl'EXDIX OF FORMS. ( ii.vr u. nine years therein ; subject nevertheless to the payment of the rent reserved and made payable in and by the said indenture of lease, in manner and form therein mentioned, and to the observing, fulfilling, performing, and keeping all and singular the covenants, provisoes, conditions, restrictions, reservations, and exceptions therein contained, and which, on the part of the lessee, are and ought to be observed, performed, fulfilled, and kept according to the true intent and meaning of the said indenture of lease, and provided that the said , his executors or administrators, do not and shall not assign, transfer, or set over the said premises, or any part thereof, or grant any new underlease thereof, or of any part thereof, to any person or persons whomsoever for all or any part of the said residue of the said term without the further special license and consent of the said AB, his heirs or assigns, in writing under his or their hand or hands, first had and obtained. As witness, ikc. ( 335 ) CHAPTEPt III. NOTICES, DEMAXDS, ETC. 1. Notice to quit on cer- tain DAY, YEAH TO YEAR 335 2. Notice BY TENANT 335 3. Notice by lessee to les- sor UETEKMININO LEASE 336 4. Notice by lessor to les- see TO DO REPAIRS ... 336 5. Notice by mortgagee to tenant to pay rent ... 336 6. Notice by landlord to tenant to pay rent ... 336 7. Notice to sheriff not TO remove goods ... 337 8. Demand of possession 337 9. Demand of possession claiming double RENT 337 10. Notice to deliveb up possession 338 11. "Warrant OF D1.STRES8... 338 12. Notice OF DISTRESS ... 338 13. Landlord's consent to improvements 339 14. Notice of intention to REMOVE buildings ... 339 15. Notice with respect to improvements under SECT. 12 OF AGB. hold. act 340 16. Notice of intention to claim compensation ... 340 17. Counter NOTICE BY land- lord 340 I. Police hi/ Landlord to tenant from year to year to quit on a certain day. Mr. A. B. I hereby give you notice to quit and deliver up to me on the day of 18 (a), the house and premises at , in tlie county of , now in your occupation, and which you hold of me as tenant from year to year. Dated the day of i8 . C. D. 2. Notice hy tenant from year to year to landlord of quitting. Mr. A. B. I hereby give you notice that I intend to quit and deliver (a) If there i.s any doubt as to the day upon which the year's tenancy ends, the following w^rds should be here inserted : " or at the ex- piration of the year of your tenancy which shall exiiire next after the end of one half-year from the ser- vice of this notice." Where the tenancy is subject to the Ajjr. Hold. Act, tiie notice must be a twelve- month's notice (see s. 51 of Act in Ai)i)eiidix), and for the words " one half-year" in the above paragraph, the words "one whole year" must be substituted. 336 Ari'ENDIX OF FORMS. lip to you on the day of 18 » the house and premises now in my occupation, and which I hold of you as tenant from year to year. Dated tliis day of 18 . C. D. (Tenant.) 3. Notice hy lessee to lessor deiermiiibig lease. Mr. A. 13. In exercise of the power contained in tlie lease under which I now hold the house known as No. Street, I hereby give you notice that I intend to determine the .said lease on the day of 18 , on which day I shall deliver up to you the house and premises. Dated this day of 18 . C. D. (Tenant.) 4. Notice hy lessor to lessee to do rejxiirs. :Mr. I hereby require you fortliwith to do the repairs specified at the foot hereof, and if such repairs are not done within calendar months from the date hereof, I shall cause the same to be done, and shall require you in performance of the covenant contained in the lease of the premises, to re{)ay me the sum expended, together with interest, at 5 per cent., from the time of commencing the said repairs. Dated this day of 18 . C. D. (Tenant.) 5. Notice hy mortgagee to tenant to pay rent. Mr. Whereas the hereditaments now occupied by you have been conveyed to me in fee by way of mortgage for securing a sum of .£ ,1 hereby give you notice to pay to me, or my agent, all arrears of rent now due, and all rent henceforth to become due. Dated this day of 18 . A. N. 6. Notice hy landlord to tenant to pay rent. Mr. C. D. I hereby require you to pay to me on the day of 18 , the sum of £, , being the rent due at Martin- mas last, in res])ect of the farm you hold of mc under a lease. Dated this day of 18 . A. B. NOTICES, DEMANDS, EFC. 337 7. y^oiice by Landlord to Sheriji', under S Anne, c. 14, s. i, not to remove goods of execution debtor. To the Slieriir of tlie county of , and his under- sherill's and bail ill's, and all others wiiom it may concern : Talve notice that the sum of £ is now due and owing to me from CD of , in the county of , for one year's rent due on the day of hist, of the premises iu his occupation at aforesaid ; upon which premises, as I am informed, you have seized and taken in execution certain goods and chattels; and you are hereby recpiired not to remove any of the said goods and chattels from olf the said premises until the said arrears of rent are paid, pursuant to the statute, in such case made and provided. Dated this day of 18 . — Yours, etc., A. B. 8. Demand of possession punuant to 15 tO 16 Vict. c. 76, s. 213. To C. D. SiK, — I do hereby, according to the form of the statute in such case made and provided, demand of and require you forthwith to quit and deliver up possession of the farm and premises, with the appurtenances, situate and being at , in the parish of , iu the county of , and which were held by you under a lease bearing date the day of 18 , for the term of years, which expired on or about the day of last. Dated this day of 18 . — Yours, &c., A. B. 9. Demand of possession at the end of a term of years claiming double rent or double value, ante, pp. 224, 226. To C. D. Sir, — I do hereby demand of and require you to quit and deliver up possession of the farm and premises, with the appurtenances, situate at , in the parish of , in the county of , on the expiration of your term therein whicli shall exi)ire on or about the day of next or in- stant ; and take notice that if you hold over the said premises after the expiration of the term, you will be liable to pay double rent for the said premises, pursuant to the statute ii\ such case made and provided. Dated this day of 18 . — Yours, &c., A. B. Y til M'. Ill CIIAT III. 338 AITENDIX OF FOKMS. 10. Xotice to Tenant to deliver vp possession, jmrsuant to 1 cO 2 Vict. c. 74, ante, 2}. 218. I, AB, do hereby give you notice, tb;it unless peaceable possession of the farm and premises situate at , held of me under a tenancy from year to year, -wbicli was determined on the day of , and whicli farm and premises is now held over and detained, be given to on or before the expiration of seven clear days from the service of this notice, I, AB, shall on next, the day of , at of the clock of the same day, at , apply to Her Majesty's Justices of the Peaoe acting for the district of (a) , in petty sessions assembled, to issue their war- rant directing the constables of the said district to enter and take possession of the said farm and premises, and to eject any person therefrom. Dated this day of 18 (Sisned) A. B. To C. D. II. Wai'rmit to distrain on a farm fur rent. To C. D., my bailiff. I hereby authorise and require you to distrain the goods and chattels, and also the cattle and growing crops, in and U[)on the farm lands and premises of EF situate at in the parish of in the county of , for £ , being quarters rent due to me for the same at Lady Day last, and to proceed thereon for the recovery of the said rent as the law directs. But you are hereby expressly prohibited from taking any property not legally liable to a distress for rent. Dated this day of 18 . (Signed) A. B. 12. Xotice of distress fur rent. To E, F., and all others whom it may concern. Take notice that I, CD, as bailiff for AB, your landlord, have this day distrained on the farm lands and premises iu your occupation or possession, mentioned iu the inventory hereunto annexed, the goods and chattels, and also the cattle and growing cro2)s mentioned in the said inventory, for £ , being quarters rent due to the said AB at Lady Day last, for the said farm lands and premises ; and unless you pay the said rent, with the charges of distraining (rt) The di.strict iu wliicli the premises are situate. NOTICES, DEMANDS, ETC. 339 for tlic same, within five days from the date hereof, the said ^'" ^'' '" goods and chattels, and tlie said cattle, will be appraised and sold according to law, and the said AB will jiroceed to cut, gather, carry, and lay up the said crops when ripe in tlie Viarn, or other proper place on the said jireniises, and in convenient time sell and dispose of the same in satisfaction of the said rent, and of the cliarges of such distress, appraisement, and sale, according to law. Dated this day of i8 . (Signed) C. D., of Bailiff of the above A. B. 13. — Impkovements. LamUorcVs consent jmrsiiant to 14 (0 15 Vid. c. 25, .v. 3, to the tenant erectin. 245. To A. B. Sir, — I hereby give ycni notice that at, or soon after, the expiration of one calendar month from the service of this notice, it is my intention to remove from the farm and premises situate at in the parish of in the county of , now in my occupation, all [describe the buildings, d'C, to be removed\ As witness my hand this day of 18 . (Signed) C. D. (/.) 15. Notice to Landlord pursiiant to s. 12 of Agricultural Holdings Act (see Appendix of Statutes, post) (c). To A. B. of Sir, — I hereby give you notice that after the expiration of seven days, and within forty-two days from the service of (h) A similar form under the Agri- (c) For improvements of the first cultur.al Holdings Act may easily be class the landlords consent iu writ- framed from the above. ' ing must be obtaiued. 340 APPENDIX OF FOIiMS. tins notice (d), it is my intention to begin to execute certain improvements of the second class mentioned in the 5tli section of the Agricultural Holdings (England) Act, 1875, in and upon the land and premises situate at in the palish of , in the county of , now in my occupa- tion. The above-mentioned improvements are as follows : — 16. Notice of intention to claim compensation iinder Agricultural Iloldings Act. I hereby give you notice of my intention to claim compen- sation under the Agricultural Iloldings Act, 1875, for im- provements executed by me upon the land and premises now in my occupation (e). And I also give you notice of my in- tention to claim compensation under the above statute for the breach of a covenant [or other agreement connected with the contract of tenancy] upon your part to repair and keep in repair, itc, such covenant being contained in a lease dated the day of The following are the particulars of my intended claim with respect to improvements under the above statute. (Signed) A. B. To C. D. 17. Counter notice by landlord. I hereby give you notice of my intention to make a claim for compensation upon you under the Agricultural Holdings Act, 1875, you having given me a notice, dated the day of , of your intention to claim compensation under that Act from me. The following are the particulars of my intended claim (/). (d) The tenant must not begin to month before the determination of execute the improvements till after the tenancy. See s. 20, Appendix the expiration of seven days from of Statutes, post. the service of the notice. See s. 12 (/) It seems that this claim can of Agricultural Holdings Act, Ap- only be raised l)y way of counter pendix of Statutes, pout. claim. See s. 19, Appendix of (e) This notice must be given one Statutes, post. ( 341 ) CHAl'TER IV. FORMS OF PLEADINGS, ETC. PAGE 1. Indorsements of writs 341 2. Statements of claim, etc. 342 FIG It 3. Judgments and writs of possession, etc 345 I. Indorsements of Writs. Amongst the general indorsements of writs given by Appendix A, Part II., Section I., of the First Schedule of tlie Judicature Act, 1875, are the following: — The plaintiff's claim is £ for arrears of rent. Ji*""!- The plaintiff's claim is £ for the use and occupation ^^^ !i'>'i oceupa- r 1 tioil. 01 a house. The plaintiff's claim is £ for money paid for rent itcnt paia. due by the defendant. The i)laintiff's claim is £ against the defendant AB surety for as principal, and against the defendant CD as surety for the '^'■'■'-■^'•'' "''■■''"' • price of arrears of rent. The plaintiff's claim is £ for crops, tillage, manure w.iy(,'oing crops, [or as the case may 6e] left by the defendant as outgoing tenant of a farm. By Section II., the following indorsement for costs, S:c.. may be added to the above forms : — And £ for co.sts; and if the amount claimed be paid to the plaintiff, or his solicitor, within four days [o»" // the ivrit is to be served out of the jurisdiction or notice in lieu of service allowed, insert the time for appearance limited hj/ the order'\ from the service hereof, further proceedings will lie stayed. The following indorsements are taken from Section IV. : — The plaintiff's claim is in replevin for goods wrongfully Replevin, distrained. The plaintiff's claim is for damages for improperly dis- Distress, training [this form shall he sufficient whether the distress complained of he wrongful, or excessive, or irregular, and whether the claim he for damages only or for douhle vaiue^. See. 342 AITENDIX OF FORMS. CHAP. IV. The plaintilT's claim is to recover possession of a liouse, Kji-ctnicnt ^o. ill Street, situate in tlie parish of , in the county of To estiiWisii title The plaintiffs claim is to establisli liis title to [here anil recover rent. 7 •; .7 1 -[ t j. ^i 1. ii c tlescriOe the p)-oper(i/\, and to recover the rents thereof. [The two last forms may be combined.] Covenant for 'j^'jig ])l;iintiff's claim is for damaires, for breach of a con- Jire insurance. , . , • 1 o / tract to insure a house. K.'iiuira. The plaintiff's claim is for damages for breach of a con- tract to repair. Breach of cove- The i)laintiff's claim is for damaees for breaches of cove- nants in lease of . i • 1 • i r r " a farm. nants contauied in a lease ot a larm. Contract to let a fpiig plaintiff's claim is for damages for breach of a con- tract to let [o?- talt-e] a house. Sale of a lease. The plaintiff's claim is for damages for breach of a con- tract to sell [or purchase] the lease with goodwill, fixtures, and stock-in-trade of a public-house. ManOamus. Add to indorsement : — And for a mandamus. And for an Injunction. injunction. Add to indorsement where claim is to land, or to establish Mesne i.rofit>, title or both : — And for mesne profits. And for an account of rent or arrears of rent : — And for breach of covenant for [?T/)a^Vs]. 2. Statements of Claim, tir. In the High Court of Justice, i8 , B. No. . Division. Writ issued 3d August 1S76. Between A. B. , plaintiff, and C. D. , defendant. Statement of Claim. ' 1. On the day of , the plaintiff, by deed, let the defendant a house and premises. No. 52 Street, in the City of London, for the term of 21 years, from the day of , at the yearly rent of £120, payable quarterly. 2. By the said deed the defendant covenanted to keep the said house and premises in good and tenantable repair. 3. The said deed also contained a clause for re-entry, entitling the plaintiff to re-enter upon the said house and pre- mises, in case the rent thereby reserved, whether demanded or not, should be in arrear for 21 days, or in case the defen- dant should make default in the performance of any covenant upon his part to be performed. FORMS OF rr.KADINT.S, ETC. 343 4. On the i4tli Juno 18 , a quarter's rent became due, anil on the 29th September 18 , another quarter's rent be- came due; on the 21st October 18 , both had been in arrear for 2 1 days, and both are still due. 5. On the same 21st October 18 , the house and pre- mises were not, and are not now, in good or tenantable repair, and it would require the expenditure of a large sum of money to reinstate the same in good and tenantable repair, and the plaintifi''s reversion is much depreciated in value. The plaintiff claims — 1. Pos.session of the said house and premises. 2. £> arrears for rent, 3. £ damages for the defendant's breach of covenant to repair. 4. £ for the occupation of the house and premises from the 29th September 18 , to the day of recovering possession. 5. The plaintiff proposes that this action should be tried in London. In the High Court of Justice, 18 , B. Xo. j Common Pleas Division. Writ issued 3d August 1876. Between A. B. , plaintiff, and C. D. , defendant. Statement of Claim. 1. On the day of the plaintiff let to the de- fendant a house, No, 52 Street, in the City of Lon- don, as tenant from year to year, at the yearly rent of £120, payable quarterly, the tenancy to commence on the day of 2. The defendant took possession of the house, and con- tinued tenant thereof until the day of last, when the tenancy determined by a notice duly given. 3. The defendant has disregarded the notice, and still re- tains possession of the house. The plaintiff claims — 1. Possession of the house. 2, £ , for mesne profits, from the day of The plaintiff proposes that this action should be tried in Loudon, 344 APPENDIX OF FOKMS. riiAP. IV. Defence and Counter Claim. • In the High Court of Justice, i S , No. Common Pleas Division. Between A. B. , plaintiff, and C. D. , defendant, (By original action.) And between C. D. , plaintiff, and A. B. , defendant. (By counter claim.) The defence and counter claim of the above-named C. D. — 1. Before the determination of tlie tennncy mentioned in the statement of claim, the plaintiff, AB, by writing dated the day of , and signed by him, agreed to grant to the defendant, CD, a lease of the house mentioned in the statement of claim, at the yearly rent of .£150, for the term of twenty-one years, commencing from the day of , when the defendant CD's tenancy from year to year deter- mined, and the defendant has since that date been and still is in possession of the house under the said agreement. 2. By way of counter claim the defendant claims to have the agreement specifically performed, and to have a lease granted to him accordingly, and for the purposes aforesaid, to have this action transferred to the Chancery Division. In the High Court of Justice, 18 , No. Cliancery Division. (Transferred by order dated day of .) Between A. B. , plaintiff, and C. D. , defendant. (By original action.) And between C. D. , plaintiff, and A. B. , defendant. (By counter claim). The reply of the plaintiff A.B. The plaintiff, AB, admits the agreement stated in the defen- dant CD's statement of defence, but he refuses to grant to the defendant a lease, saying that such agreement provided that the lease should contain a covenant by the defendant to keep the house in good repair, and a power of re-entry by the ]ilaintiff upon breach of such covenant, and the plaintiff says that the defendant has not kept the house in good repair, and the same is now in a dilapidated condition. FORMS OF PLEADINGS, ETC. 345 [Title as ahove.^ Joiiuler of Issue, Tlie defeiuLmt, CD, joins issue upon the plaintiff AB's statement in reply. 3. Jiidipnciits and Writs of Possessioyi, d'C. Judgment in default of appearance in action for recovery of land. In the High Court of Justice, 18 , B. No. Division. Between A. B. , plaintiff, and C. D. , defendant. 30th November iS . No appearance having been entered to the writ of summons herein, it is this day adjudged that the plaintiff recover possession of the land in the said writ mentioned. Praecipe for Writ of Possession. In the High Court of Justice, Division. Between A. B. , plaintiff, and C. D. and others, defendants. Seal a writ of possession directed to the Sheriff of to deliver possession to A. B. of Judgment dated day of Writ of Possessio7i. In the High Court of Justice, 18 , B. Xo. Division. Between A. B. , plaintifl', and C. D. and others, , defendants. Victoria, to the Sheriff of greeting — Whereas, lately in our High Court of Justice, by a judgment of the Division of the same Court (AB recovered) or (EF was ordered to deliver to AB) possession of all that with the appurtenances in your bailiwick : Therefore we com- mand you that you omit not by reason of any liberty of your county, but that you enter the same, and without delay you cause the said AB to have possession of the said land and I>remises with the appurtenances. And in what manner you have executed this our writ make appear to the Judges of the Division of our High Court of Justice immediately after the execution hereof, and have you there then this writ. Witness, ifcc. ( 34<3) CHArTER V. FORMS OF PA'OCEED/NGS IN REPLEVIN. 1. XOTICE TO DISTKAINKR OF OOODS OR CATTLE INTENDED TO BE REPLEVIED ... 346 2. Notice OF SURETIE.S ... 346 3. Affidavit OF JUSTIFICATION 347 PA OK Bond in replevin under S. 66 OF 19 & 20 VlCT. c. 108, where ACTION OF replevin commenced in county courts ... 348 I. Notice to Distrainer of Goods or Cattle inteiuled to he replevied, (a) Til the County Court of , bolden at Take notice that AB, of , whose goods [or "cattle"] you have distrained, intends to replevy the same, and lias proposed as his sureties for the due prosecution of an action of replevin against you in the [here mention the Court in which the action is to be brought] EF of and GH of , and that if you have any valid objection to make to the proposed sureties, or either of them, you must attend at [here insert place of office of rerjistrar], on the day of , at the hour of , when the bond will be sub- mitted to me for approval. I. K., Registrar of Court. 2. Notice of Sureties, {h) In the County Court of , holden at , Between A. B. , plaintiff, and C. D. , defendant. Take notice that the sureties whom I propose as my secu- rity in the above cause [here state the proceedit/tjs which have rendered the sureties necessary], hxq [here state the full names (0) See 19 & 20 Vict. c. 108, ss. Rules, but as no action has been 63, 64, which requires this notice. commenced, it would seem that the (6) See the County Court Kule.?, title of the action is wrong. 134. The form is given by the FORMS OF FROCEEDINGS IN RF.rLKVIX. 347 and additions of sureties, n'ltetlier housekeepers or freeholdtrs, ciiai' v and their residences for the last six months, therein mentioninij the county or city, placis, streets, anil number if any]. Dateil this day of 18 . To the 3. Affidavit of Justification, (c) In the County Court of , holden at , Between A. B. , plaiiitifr, and C. D. , defendant. I, , of , one of tlie sureties for tlic defendant, make oath and say that I am a housekeeper \i>r " freeliolder," as tlie case may be], residing at [describing/ pai-ticnlarty the county or city, the street or place, and tlie number of the. house if any], that I am wortli property to the amount of £, [tlie amount required by the practice of the Court], over and above wliat will pay my just debts [if security in any other action or for any other jjurpose, add, "and every other sum for which I am now security "] ; tliat I am not bail or security in any other action or proceeding, or for any other person [or if security in any other action or actions, add, " ex- cept for CD, at the suit of EF, in the Court of , in the sum of £ , for GH, at tlie suit of JK, in the Court of , in the sum of £ , [specifying the several actions with the Courts in tvliich they are brought, and the sums in which he has become bound] ; that this my property to the amount of the said sum of X [and if security in any other action, d'c, " over and above all other sums for which I am now security as aforesaid "] consists of [here specify the nature and. value of the property in respect of which the deponent jyroposes to become bondsman as follows, " stock in trade in my busi- ness of , carried on by me .at , of the value of L , of good book debts owing to me to the amount of £ , of furniture in my house at of the value of £ , of a freehold (or ' leaseholil') farm of the value of £ , situate at , occupied by ; or of a dwelling-house of the value of £ , situate at , occupied by ; " or of other property, 2^(t^f(icularisin;/ each description of 2^^'operty with the value thereof], and that I have for the last six months resided at [describing the place of such residence, or if he has had more than one residence during that period, state in the same manner as above directed]. Sworn, ckc. (c) See County Court Rules, 135. the registrar. The opposite party The affidavit is to be sworn before may dispense with the affidavit. 348 APPENDIX OF FORMS. CHAP. V. 4. Jjoml in Replevin under s. 66 of \() f such premises to the phiintitf, and that if such order be not obeyed, a warrant may issue to give jjossession to the plaiutiiT. I. K., Registrar of the Court. Costs of this Summons, ,£ Hours of attendance [ttc, as in Form /.] 3. Order for Itecovcry of 2'euemcnt. No. In the County Court of , at (Seal). Between A. B. , plaintiif, and C. D. , defendant. Upon the hearing of this cause at a Court holden this day, it is ordered tliat the defendant do give to the plaintiff posses- sion of a certain [or messuage or part of a certain house with appurtenances, or as the case may be\, situate at fi)rtlnvith (or on the day of ) : And it is adjudged that the plaintiff do recover against the defendant tlie sum of £ for rent \. 1S75. EesumptioJi for Impi'ovements. 52. Resumption of possession for cottages, ikc. Fixtures. 53. Tenant's property in fixtures, niacbinery, kc. General Application of Act. 54. No restriction on contract. 55. Adoption of parts of Act by agreement. 56. Application of Act to future tenancies. 57. Application of Act to existing tenancies. 58. Exception of non-agricultural and small holdings. 59. Exception where other compensation. 60. General saving of rights. Cn^\PTER 92. An Act for amending the Law relating to Agricultural Holdings in England. [13th August 1875.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as fullows : — Preliminary. 1. This Act maybe cited as The Agricultural Holdings Short title. (England) Act, 1875. 2. This Act shall commence from and immediately after Commencement the fourteenth day of February one thousand eight hundred °'^'^'"'- and seventy-six. 3. This Act shall not extend to Scotland or Ireland. Extent of A.;t. 4. In this Act — "Contract of tenancy" means a letting of land for a interpretation, term of years, or for lives, or for lives and years, or from year to year, or at will : 358 ArrENDix. " Determination of tenancy " means the cesser of a con- tract of tenancy by reason of el'lluxion of time, or from any other cause : *' Landlord " means the person for tlie time being en- titled to possession of land subject to a contract of tenancy, or entitled to receipt of rent reserved by a contract of tenancy, •whatever be the extent of bis interest, and although the land or his interest therein is encumbered or charged by himself or his settlor, or otherwise, to any extent ; the party to a contract of tenancy under which land is actually occupied being alone deemed to be the landlord in relation to the actual occupier : " Tenant" means the holder of land under a contract of tenancy : "Landlord" or " tenant " includes the agent authorised in writing to act imder this Act generally, or for any special purpose, and the executors, administra- tors, assigns, husband, guardian, committee of the estate, or trustees in bankruptcy, of a landlord or tenant : " Holding " includes all land held by the same tenant of the same landlord for the same term under the same contract of tenancy : " Absolute owner" means the owner or person capable of disposing, by appointment or otherwise, of the fee simple or whole interest of or in freehold, copy- liold, or leasehold land, although the land or his interest therein is mortgaged, encumbered, or charged to any extent : "County court," in relation to a holding, means the county court within the district whereof the hold- ing or the larger part thereof is situate : " Person " includes a body of persons and a corporation aggregate or sole. The designations of landlord and tenant shall, for the pur- poses of this Act, continue to apply to the parties to a con- tract of tenancy until the conclusion of any proceedings taken under this Act on the determination of the tenancy. Compensation. Tenant's title to 5- Where, after the commencement of this Act, a tenant compensation, executes on his holding an improvement comprised in either of the three classes foUowinir : — ACltlCULTURAL IIOLDLXGS ACT. 359 A.l). 1S7, FIRST CLASS. Drainage of land. Erection or enlargement of buildings. Laying down of permanent pasture. Making and planting of osier beds. Making of water meadows or works of irrigation. Making of gardens. Making or improving of roads or bridges. Making or improving of water-courses, ponds, wells, or reservoirs, or of works for supply of water for agri- cultural or domestic purposes. j\[aking of fences. Planting of ho\)S. Planting of orchards. Reclaiming t)f waste land. Warping of land. SECOND CLASS. Boning of land with undissolved bones. Chalking of land. Clay-burning. Claying of land. Liming of land. Marling of land. THIRD CLASS. Application to land of purchased artificial or other inir- chased manure. Consumption on the holding by cattle, sheep, or pigs, of cake or other feeding stuff not produced on the holding ; — he shall be entitled, subject to the provisions of this Act, to obtain, on the determination of the tenancy, compensation in respect of the improvement. 6. An improvement shall not in any case be deemed, for Time in which the purposes of this Act, to continue unexhausted beyond the ""1,'auIteT"'^ respective times following after the year of tenancy in which the outlay thereon is made : Where the improvement is of the first class, the end of twenty years : Wliere it is of the second class, the end of seven years : Where it is of the third class, the end of two years. \6o AITEXDIX. A.D. 1875. Amount of tenant's cmi- (lensatioii iu Urst class. Amount of tenant's com- pensation in second class. Amount of tenant's com- l>ensation in Tonsent of land lord for first class. ])eduction in first class for want of repair, Notice to land- lord for second class. Exclusion of compensation in third class after exhausting crop. 7. The amount of the tenant's compensation in respect of an improvement of the first cbiss shall, subject to the provi- sions of tliis Act, be the sum laid out by tlie tenant on the improvement, with a deduction of a proportionate part thereof for each year while the tenancy endures after tlie year of tenancy in which the outlay is made and wliile the improve- ment continues unexhau.sted ; but so that where the landlord was not, at the time of the consent given to the execution of the improvement, absolute owner of the holding for his own benefit, the amount of the compensation shall not exceed a capital sum fairly representing the addition which the im- provement, as far as it continues unexhausted at tlie determi- nation of the tenancy, tiien makes to the letting value of the holding, 8. The amount of the tenant's compensation in respect of an improvement of the second class shall, subject to the pro- visions of this Act, be the sum i)r()perly laid out by the tenant on the improvement, with a deduction of a propor- tionate part thereof for each year while the tenancy endures after the year of tenancy in which the outlay is made and while the improvement continues unexhausted. 9. The amount of the tenant's compensation in respect of an improvement of the third class shall, subject to the provi- sions of this Act, be such proportion of the sum properly laid out by the tenant on the improvement as fairly represents the value thereof at the determination of the tenancy to an incoming tenant. 10. The tenant shall not be entitled to compensation in re- spect of an improvement of the first class, unless he has exe- cuted it with the previous consent in writing of the landlord. 11. In the ascertainment of the amount of the tenant's compensation in respect of an improvement of the first class, there shall be taken into account, in reduction thereof, any sum reasonably necessary to be exjjended for the purpose of putting the same into tenantable repair or good condition. 12. The tenant shall not be entitled to compensation iu respect of an improvement of the second class, unless not more than forty-two and not less than seven days before be- ginning to execute it, he has given to the landlord notice in writing of his intention to do so, nor where it is executed after the tenant has given or received notice to quit, unless it is executed with the previous consent in writing of the landlord. 13. The tenant shall not be entitled to compensation in respect of an improvement of the third class, where, after tlie execution thereof, there has been taken from the portion of AGRICULTURAL HOLDINGS ACT. 36 1 the liolding on wliich the same was executed, a crop of caid as iu that AGRICULTUILVL HOLDINGS ACT. 369 section provided with respect to the expenses therein men- a.d. 1875. tioned. ~^~ Tlie amount of any compensation payable nnder this Act by the Cliaiicellor of the Diicliy in respect of an improvement of the second chiss, or of the third class, shall be paid ont of the annnal revenues of the Duchy. Tlie amount of any compensation payable nnder this Act to the Chancellor of the Duchy shall be paid into the hands of the Receiver-General of the revenues of the Duchy, or of bis sufficient deputy or deputies ; and receipts shall be given by him or them for the same ; and the same shall be applicil as purchase money for land S(.)ld under The Duchy of Lancas- ter Lands Act, 1S55, and is applicable under section two of that Act. 47. This Act shall extend and apply to land belonging to Application of the Duchy of Cornwall. ,^;;^ ';; |;',-' "' Witii respect to such land, for the purposes of this Act, Cornwall, such person as the Duke of Cornwall for the time being, or other the personage for the time being entitled to the revenues and possessions of the Duchy of Cornwall, from time to time, by sign manual, warrant, or otherwise, appoints, shall repre- sent the Duke of Cornwall, or other the personage aforesaid, and be deemed to be the landlord, and may do any act or thing under this Act which a landlord is authorised or re- quired to do thereunder. Any compensation payable under this Act by the Duke of Cornwall, or other the personage aforesaid, in respect of an improvement of the lirst class, shall be deemed to be payable in respect of an improvement of land within section eight of The Duchy of Cornwall Management Act, 1863, and the amount thereof may be advanced and paid from the money mentioned in that section, subject to the provision therein made for repayment of sums advanced for improvements. Ecclesiastical and Charily Lands. 48. Where lands are assigned or secured as the endow- T,an(iior.i, ment of a see, the powers by this Act conferred on a landlord bishop '"'' ' ' shall not be exercised by the archbishop or bishop, in respect of those lands, except with the previous approval in writing of the Estates Committee of the Ecclesiastical Commis- sioners for England. 49. Where a landlord is incumbent of an ecclesiastical i-Jindioni. benefice, the powers by this Act conferred on a landlord shall J'eueiice. "' "^ not be exercised by him in respect of the glebe land or other 2 A 370 APPENDIX. A.D. 1875. land belonging to the benefice, except with the previous approval in writing of the Governors of Queen Anne's Bounty (that is, the Governors of the Bounty of Queen Anne for the Augmentation of the Maintenance of the Poor Clergy). In every such case the Governors of Queen Anne's Bounty may, if they think fit, on behalf of the incumbent, out of any money in their hands, pay to the tenant the amount of com- pensation due to him under this Act ; and thereupon they may, instead of the incumbent, obtain from the county court a charge on the holding, in respect thereof, in favour of themselves. Every such charge shall be effectual, notwithstanding any change of the incumbent. The Governors of Queen Anne's Bounty, before granting their approval in any case under this section, shall give notice of the application for their approval to the patron of the benefice (that is, the person, officer, or authority, who, in case the benefice were then vacant, would be entitled to present thereto). Laniiiord, 50. The powers by this Act conferred on a landlord shall chanty trustees, ^^^ |^^ exercised by trustees for ecclesiastical or charitable purposes except with the previous approval in writing of the Charity Commissioners for England and Wales. Notice to Quit. Time of notice to ^j^ Where a half-^'car's notice, expiring with a year of '^"' ■ tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, a year's notice so expiring shall by virtue of this Act be necessary and sufficient for the same ; but nothing in this section shall extend to a case where the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. Resumption for Improvements. Resumption of g 2. Where on a tenancy from year to year a notice to quit ooua|er&c!' is given by the landlord with a view to the use of land for any of the following purposes : — The erection of farm labourers' cottages or other houses, with or without gardens ; The providhig of gardens for existing farm labourer's cot- tages or other houses ; The allotment for labourers of land for gardens or other purposes ; AGRICULTURAL HOLDINGS ACT. 37 I The planting of trees ; ad. 1875 The opening or working of any coal, ironstone, limestone, or other mineral, or of a stone quarry, clay, sand, or gravel pit, or the construction of any works or buildings to be used in connection therewith ; The obtaining of brick, eartii, gravel, or sand ; The making of a water-course or reservoir ; The making of any road, tramroad, siding, canal, or basin, or any wharf, pier, or other work connected therewith ; and the notice to quit so states, then it shall, by virtue of this Act, be no objection to the notice that it relates to part only of the holding. In every such case the provisions of this Act respecting compensation shall apply as on determination of a tenancy in respect of an entire holding. The tenant shall also be entitled to a proportionate reduc- tion of rent in respect of the land comprised in the notice to quit, and in respect of any depreciation of the value to him of the residue of the holding, caused by the withdrawal of that land from the holding or by the use to be made thereof ; and the amount of that reduction shall be ascertained by agreement or settled by a reference under this Act, as in case of compensation (but without appeal). The tenant shall further be entitled, at any time within twenty-eight days after service of the notice to quit, to serve on the landlord a notice in writing to the eflect that he (the tenant) accepts the same as a notice to quit the entire holding, to take effect at the expiration of the then current year of tenancy ; and the notice to quit shall have effect accordingly. Fixtttres. 53. Where after the commencement of this Act a tenant Tenants pro. affixes to his holding any engine, machinery, or other fixture machinery, 4c' for which he is not under this Act or otherwse entitled to compensation, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture be- longing to the landlord, then such fixture shall be the i^roperty of, and be removable by, the tenant : Provided as follows : — 1. Before the removal of any fixture the tenant shal pay all rent owing by him, and shall perform c-r satisfy all other his obligations to the landlord in respect of the holding : 2. In the removal of any fixture the tenant shall not do 372 An-ENDIX. AD. 1875. any avoidable damage to any building or other part of the holding : 3.' Immediately after the removal of any fixture the ten- ant shall make good all damage occasioned to any building or other part of the liolding by the re- moval : 4. The tenant shall not remove any fixture without giving one month's previous notice iu writing to the land- lord of the intention of the tenant to remove it : 5. At any time before the expiration of the notice of removal, the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the holding ; and any difference as to the value shall be settled by a reference under this Act, as in case of compensa- tion (but without appeal) : But nothing in this section shall apply to a steam-enguie erected by the tenant if, before erecting it, the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord, by notice in writing given to the ten- ant, has objected to the erection thereof. No restriction oQ contract. Adoption of parts of Act by ."igreement. General Apjdication of Act. 54. Nothing in this Act shall prevent a landlord and ten- ant, or intending landlord and tenant, from entering into and carrying into effect any such agreement as they think fit, or shall interfere with the operation thereof. 55. A landlord and tenant, whether the landlord is abso- lute owner of the holding for his own benefit or not, may, in any agreement in writing relating to the holding, adopt by reference any of the provisions of this Act respecting pro- cedure or any other matter, without adopting all the provi- sions of this Act; and any provision so adopted shall have effect in coimection with the agreement accordingly. But where, at the time of the making of the agreement, the landlord is not absolute owner of the holding for his own benefit, no charge shall be made on the holding, under this Act, by virtue of the agreement, greater than or different in nature or duration from the charge which might have been made thereon, under this Act, in the absence of the agree- ment. AGRICULTUKAL HOLDINGS ACT. 373 56. This Act shall apply to every contract of tenancy a.d. 1875. beginning after the commencement of this Act, unless, in any Application or case, the landlord and tenant agree in writing, in the contract A'I to future of tenancy, or otherwise, that this Act, or any part or provi- sion of this Act, shall not apply to tbe contract ; and, in that case, this Act, or the part or provision thereof to which that agreement refers (as the case may be), shall not apply to the contract. 57. In any case of a contract of tenancy from year to year Application or or at will, current at the commencement of this Act, this Act i^^a^^.l^^"'''"'^ shall not apply to the contract, if within two months after the commencement of this Act the landlord or tlie tenant gives notice in writing to the other to the eflfect that he (the person giving the notice) desires that the existing contract of tenancy between them shall remain unaffected by this Act ; but such a notice shall be revocable by writing ; and in tlie absence of any such notice, or on revocation of every such notice, this Act shall apply to the contract. In every other case of a contract of tenancy current at the ccmimencement of this Act, this Act shall not apply to the contract. 58. Nothhig in this Act shall apply to a holding that is Kxception of not either wholly agricultural or wliolly pastoral, or in part °nn)mon law, 257. by 32 Hen. VIII. c. 34, 257. See Assignment, Attornment, Bankuuptcv, Covt- NANT3 IIUNNINQ WITH LaND. 382 INDEX. Change of parties — By Act of Law — death of lessor, 265. reversion goes to heir;?, 265. for breaches of covenants before death, 265. if reversion is a cliattel passes to execution, 265. death of lessee, 266. personal representative liable to the amount of assets, 266. not liable for breach of implied covenant subsequent to death, 266. liability as assignee, 266, 267. 22 & 23 Vict. c. 35, s. 27, protects personal represen- tatives from claims alter assignment, 267, 268. leases made before statute within it, 268. bankruptcy, 268. — See Bankkuptcy. marriage of female lessor, 274. — See Marriage. marriage of female lessee, 277. — See Mauriaoe. writs of execution, 278. — See Writs of Execution. of possession. — See Under-leases. Charitable uses, trustees for, may take leases, 26. purposes, buildings for, 26. Chattels, leases of, 28. Church, lease in right of. — See Corporations. Chukciiwardens and Overseers, leases by, 15. — See Parish Officer. Coal-mines. — See Mines. Collatekal agreement not in writing, 36, n. («). College Leases, rent reserved in, 74, n. (g). Commencement of term, 63. must be stated with certainty, 63. fixed by reference to contingency, 63. lease by deed, term commences from delivery, 64. no date stated, 64. where date stated, 64. old Michaelmas Day, 65. *' to commence from the date," construction of, 64. leases for lives and for years, 65. to commence in futuro, 65. lease by parol from day of entering, 66. presumed tenancy from year to year, 66. Commissive waste. — See Waste. Committees of lunatics. — See Lunatics. Commons, lease of, 29. Companies' Act, 1862, 274. Compensation for Improvements. — See Agricultural Holdings Act. does not prevent parties from entering into any agree- ment, 235. Concurrent leases, 64. Conditions. — See Provisos. Confirmation of leases — by issue in tail, 2. what acts amount to, 2. by wife, 7. by infant, 20, 24. by ecclesiastical corporations, 12, 13. by mimicipal corporations, 12. by trustee of bankrupt, 335. INDEX. 383 Consent. — See License. by tenant to landlord continuing distress beyond the five days, 164. — See Distress. CONSTRCCTION of leases, description of property, 53. Convict, leases by, 19. Co-PARCENEKS. — See Lessors. leases by, 9. distress by, 142. Copyhold, leases of under Settled Estates Act, 5. leases pur autre vie, presumption as to death of cestui que vie, G. no lease for more than one year without license, 10. license to demise, 11. by special custom, 11. under Settled Estates Act, 11. not within Act relating to property of parish officers, IG. Corn and growing crops, distress on, 147, 148, 149, 152, 1G3. — See Distress. not personal chattels under Bills of Sale Act, 249, 148, n. (m). Corn-rent, 73. Corporations. — See Lessors. confirmation of leases by, 11, 12, 13. successors bound by their leases, 11. leases by the Crown, 11. municipal corporations, 11. cannot be made for more than thirty-one years with- out consent, 11. by ecclesiastical and eleemosynary corporations, 12. \ leases must be under seal, 11, 32. effect of lease not under seal, 11. leases to, 25. leases to or from one member to another, 25. to ecclesiastical persons, 25. apportionment of rent by ecclesiastical corporations, 1 i . Corporeal hereditaments, leases of, 27. CoRRODiKS, lease of, 30. Costs of distress, &c., 165. Counterpart of lease, 121. admissibility in evidence, 121. stamp on, 119. what are duplicates, 121, n. {g). by tenant for life under Settled Estates Act, 4, 5. County Court. — See Small Tenkments Act. re-entry for forfeiture for non-payment of rent, 204. Covenant. — See Action. Covenants, usual covenants in leases by tenant for life under Settled Estates Act, 5. definition of, 77. must not be illegal, impossible, or prejudicial to the public, 77, 78. liability of covenantee under such covenants, 78. dependent covenants void where lease is void, 78. independent covenants, 78. Express covenants, 79. may be in form of exception, 79. usual express covenants, 79. 3^4 INDEX. Covenants — Express corenants — fiji- paymeut of rent, 79. of taxes, 80. for repairs, 82. to repair and to repair after notice, 82. by lessor to repair, 82. as to main walls, notice to be given by lessee of want of repair, 82. Rubseqvient erections, 82, 83. liability of lessee for extraordinary damage, 83. to keep in repair, 83. amount of damage, 83. Bnfficiency of repairs a question for the jury, 84. " habitable repair," 84. " external parts," 84. conditional upon the landlord putting in repair, 84. for good husbandry, 84. — See Cultivation. custom of the country excluded by express covenant, 85. for insurance, 85. — See Fire. relief in equity against forfeiture, 85. not to uuderlet or assign, 86. — See License. not a common and usual covenant, 86. to lessee and assigns, 87. execvitors and administrators, 87. devise of term without landlord's assent, 88. not to carry on certain trades, 91. not to trade with particular persons, 91, 92. within a particular radius, 92. for quiet enjoyment, 93. form of covenant, 93. for interruption by person claiming under lessor, 93. ' general or unqualified covenant, 94. against acts of a particular person, 94. for renewal of leases, 95. breach of, 95. run with the land, 95. creating a perpetuity invalid, 95. forfeiture of right of renewal, 96. specific perfoDnance by Court of Chancery, 96. 4 Geo. IV. c. 28, s. 6, 96. surrender by under-lessees unnecessary, 96. 8 & 9 Vict. 106, s. 9, 97. breach of mining leases, 97, 98. Implied covenants, 99. covenants in law, 99. cease with the estate of lessor, 99. run with the land, 99. express will control implied, 99-103. may be implied from express words, 99. implied covenant from recital, 99. for payment of rent, 99. " yielding and paying," 99. for repairs, 100. express will control implied, 100. liability of tenant to rebuild after fire, and to pay rent, 179. INDEX. 3S5 Covenants — Implied covenants — uo iini)lie(l covenant that house fit for habitation, 100. or that lessor will repair, 100. or that tenant may quit on breach, 100. or that he may deduct repairs from rent, 100. for culti%'ation, 101, 179. custom of the country, 101, 179. express will control implied, 101, for title, 102. quiet enjoj-nient, 102, 103. use of words " demise," " let," or " lease," 102. use of words "give," or "grant," 102. 8 & 9 Vict. c. 106, 8. 4, only affects disturbance by person having title, 102. agreement for lease in implied covenant, 103. express will control implied, 103. Covenants tihich run tcith the land, definition of, 79, 260. for payment of rent, 79. for repairs, 82, 260, 261. for further assurance, 260. not to assign without license, 260. not to carry on certain trades, 91, 260. trading with particular persons, 92. or in a particular radius, 92. for renewal of leases, 95, 260. implied covenants, 99, 260. for quiet enjoyment, 94, 260. to maintain a sea-wall, 261. lessee to reside on the premises, 261. option to determine, 261. cultivation of the laud, 261. to produce title-deeds, 261. to supply water, 261. to insure, the sum insured being laid out on the pre- mises, 261. doing suit to a mill by grinding corn there, 261. to build a new mill, 261. repair of fixtures, 261. relating to ways and profits appurtenant, 261. Covenants which do not run with the land — provisos which are merely collateral, 104, 262. even where assigns are expresslj' named, 262. use of the word " assignees," 262. covenants which relate to movables, 263. joint covenants with tenants in common, 263. breach of negative covenants, 105. breach of covenant against iumioral or illegal act, if waived, cannot subsequently recover, 107. Crops. — See Corn and Growing Crops. way-going, 232. Crown, leases by, 11. Cultivation. — See Covenants, Emblkments. neglect to cultivate no waste, 179. eherifif not to carry off certain products of cultiva- tion, 179. nor certain other products after notice of existing covenant, 179. 2b 386 INDEX. Cultivation — except after agreement to expend tbem on the land, 180. growing crops sold under execution liable for rent, 180. remedies for neglect to cultivate, 182-186. — See Action, Injunction. CUUTESY, leases by tenants by the, 6. distress by, 143. executors of tenant entitled to emblements, 229. Custody of the law — goods in, cannot be distrained, 153. before impounded may be rescued, 171. cannot be replevied, 172. Custom of the country with respect to emblements, 232. — See CoPY- HOLD, Loud of tue Manok, Hemaindeuman. D. Damages, measure of, where fixtures are taken, lo9, 171. for wrongful distress, 169. for non-repair, 83. for holding over, 216. Date, commencement of term from, 64. Dean and Ohapteh, leases by, 12. — See CORPORATIONS. Death of parties to a lease, 265-268. — See Change of Parties, Debt. Debt, distinction between specialty and simple contract abolished, 125, n. (t). not affect demand for rent, 125, n. (t). De donis, statute of, 2. Deductions operate as payment of rent pi-o tanto, 125, 128. land-tax, 126. income tax, 127. sewers' rate, 128. poor-rates, 128. other rates, 129. tithe rent-charge, 129. Deeds, demises by deed, 33, 36, 47. Defects in leases under powers, how cured, 109, 110. — See Powers. Delivery of lease, term commences from, 64. Demand of possession, 218. — See Holding Over. summons in lieu of demand and entry, 221. double value, 225. double rent, 227. of rent, before sunset necessary to create a forfeiture, 124. demand to be made before entry, 203. requisites of a demand, 203. when unnecessary, 203. Demesnes, cannot be demised by tenant for life under Settled Estates Act, 4. Demise. — See Lease. who may. — See Lessors. effect of word, 42-48. Denizens, leases to, 23. Dependent and independent covenants, 78, 79. Desertion by tenant — 11 Geo. II. c. 19, s. 16, 222. where premises held at rack rent, 222. justices to view premises twice, 222. if rent not paid, to put landlord in possession, 223. INDEX. 387 Desertion reviewed by judge going circuit, 223. by 57 Geo. III. c. 52, s. 17, extended to tenement-i on ■\vriiteu or verbal agreenieut, 223. and to case.s where no right of re-entry is reserved, 223. apply to all demises for any term, at any rent, 223. conditions of the statutes to be fulfilled, 223. no information on oath required, 223. what the justices have to determine on the view, 223, 224. what is a desertion, 224. Determination of lease — See Agricultural Holdings Act. by effluxion of time, 194. by change of parties. — See Change of Partiks. by forfeiture. — See FoRFElTUitL. by surrender, 195. by merger, 200. by disclaimer, 207. by notice to quit. — See Notice to Quit. option to determine, 72. on bankruptcy of tenant, 273. Dilapidations. — See Repairs, Covenants. Disability to make leases, 18-22. to accept leases, 23-25. Disclaimer, forfeiture bj', 207. must in general be by writing, 207. must deny existence of relation of landlord and tenant, 207. verbal, by tenant from year to year operates as a waiver of notice to quit, 207. by bringing action of ejectment against landlord, 207. by trustee in bankruptcy, 336, 337. waiver of disclaimer, 207. operates as a waiver of notice to quit, 212. Distance, how measured, 92, n. {k), 93. — See Covenant. JJiSTRESS by joint tenant or tenant in common, 9. a necessary incident to rent reserved, 75. lessor may distrain on lease of herbage, 75. sum in gross cannot be distrained for as rent, 76. may be by agreement although not rent, 140, n. (a), definition of distress, 140, 160, n. (y), rent must be issuing out of real property, 140. must be certain, 140. remedy by, gone on death of lessor at com- mon law, 145. Who may distrain, 1 40. relation of landlord and tenant must continue to exist, 140. joint-tenants, 141. coparceners, 142. tenants in common, 142. husband and wife, 142. tennut pur auti-e vie, 143. tenant by elegit, 143. mortgagee, 143. agents, bailiffs, receivers, 144. guardians, 145. executors and administrators, 145. sequestrators, 146. 388 INDEX. Distress — What thhigs may he distrained, 1-12. geueral rule, 142. cattle, 146, n. (/). growiug crops, hay, straw, &c. , 147, 152. cocks and sheaves of corn, by 2 Will. and Marj', 147. taken in execution, 148, 152. landlord's right where goods are taken in execution, 153, n. (arties please, 68. of lease at will, 68. option to determine, 72. Duty to Pay Rent. — See Payment of Rent. E. Easements, lease of, 31, 57. included in the word "appurtenances," 56. how conveyed, &c., 57, 58. Easements in gross, lease of, 31, 58. Ecclesiastical Commissioners, 15. Ecclesiastical Corporations. — See Cokporations. leases by, 12. leases to, 25. Educational purposes, lease of buildings for, 29. Effluxion of time, 194. effect of holding over, 194. determination of lease by, 194. Ejectment for non-repair, 182. — See Action, Holding Over. mode of proceeding under Judicature Act, 217. judgment may be enforced by writ of possession, 218. 1'jLECTION to confirm or avoid leases. — See Confirmation of Leases. by alienee of issue in tail, 2. by infant, 21, 25. by trustee of bankrupt, 270, 271. by wife, 7. Elegit, distress by tenant in, 143, 280. Emblements, mortgagor in possession not entitled to, 70. Where there is no contract, 228. — See AGRICULTURAL Holdings Act. definiti(ju of right to, 228. where they may be claimed, 229. a widow who had lauds for her jointure not entitled to crop sown at the time of her husband's death, 229. common law right qualified by 14 & 15 Vict. c. 25, 229, 230. if tenant at will determines the tenancy, 230. where estate determines on an uncertain event, 230. out of what claimed, 231. INDEX. 39 r Emblements — Where there is no contract — extemla to annuarartificial profit?, 231. right of entry to take them, 'J31. right of occupation, 231, 232. Where there is a contract, 232. implied contract from custom of country, 232. way-going crops, 232. custom for outgoing tenant to be paid for tillage, 232. custom operates unless excluded, 232. common usage of the country sufficient, 232, 233. tenant's interest not a mere easement but a pos- session, 233. value of tillages recoverable from landlord, 233. or from incoming tenant, 233. landlord may bring trover for carrying away corn, &c., 233, rent paid by incoming tenant may be set off against claim of outgoing for tillages, 233. contracts and cu.stoms with respect to, 234. Enabling and disabling statutes, 3, 12. Entky. — See Re-entry. right of entry of lessee, 187, 188. Equity, agreement enforceable in, 50. Estimate. — See Valuation. Expiration of term, 194. — See Cesser op Tenancy, Determination OP Term, Effluxion of Ti.me. landlord entitled to possession, 194. Estate at will. — See Will. Estoppel, by one of two tenants in common, 9. between mortgagor and tenant after the mortgage, 10. in recitals. — See Recitals. leases by. 111, 112. general doctrine of estoppel, 111. of landlord, 111. of tenant, 112. by under-lease, 1 1 2. by attornment, 256. Estovers, leases of, 29. Eviction. — See Quiet Enjoyment. Exceptions. — See Reservations. Executors and administrators, leases by, 17. lease by one of several, 17. lease by executor after assent to legatee's interest, 17. infant appointed executor, 17. married woman appointed executrix, 17. husband's consent necessary to act, 17. husband acting without her, 17. assent of executor to a bequest, 268. right and liabilities under covenants, 267, 268. protection after assignment, 268, 269. Excessive distress, action for, 168. Execution, writs of. — See Writs op Execution. Expenses of distress. — See Costs. 392 INDEX. Factors, goods delivered in the way of trade not distrainaUe, 151. Farm, what the word includes, 52. Fair and market, lease of, 30. FjiE-siMPLE, leases by tenants in, 2. tenant in, not liable for waste, 175. Fee-tail, leases by tenants in, 2. tenant in, not liable for waste, 175. Felons, leases by, 19. leases to, 23. Fences, action for non-repair of, 1 82, waste of. — See Waste. Feb^e naturae. — See Animals. Ferry, lease of, 30. Fieri facias. — See Writs of Execution. Fire, liability of tenant at common law, 178. tenant for life or years under Statute of Gloucester, 178. now no action exce2:)t on special agreement, 178. except by malice or negligence, 178. under covenant to repair tenant may have to rebuild and pay rent, 179. — See Covenant and Insurance. Fishery, lease of must be by deed, 33. Fixtures. — See Distress. definition of, 238. what is a fixture, 238. usually the property of the landlord, 238. tenants' fixtures, 238, 239. degree of annexation, 238. object of annexation, 238, 239, 240. trade or agricultural fixtures, 240. what a tenant may remove, 240, 241. agricultural fixtures, 242. tenant in husbandry not the same privilege as tenant in trade, 242, 244. but where purpose of erection relates also to trade he may, 242. nurseryman may remove trees, 242. tenant of garden ground could not plough up strawberry beds, 242. Convenience or ornament. five circumstances to be considered, 243, domestic convenience, 243. erected by tenant, 243. could be moved entire, 243. slightly fixed, 243. between landlord and tenant, 243. what a tenant may remove, 243, 244. By Statute. 14 & 15 Vict. c. 25, 245. by s. 3, buildings for trade or agriculture erected with consent of landlord property of tenant, 245. may be removed, 245. power of landlord to purchase, 245. 38 & 39 Vict. c. 92, 245. — See Agricultural Holdings Act. subject to certain provisos tenant's fixtures removable, 245. INDEX. 393 FiXTCRES — By Statute — when to be removed, 2-16. how to be removed, 'HT. express agreemeut overrules general principles, 247. may prevent removal of fixtures, 2-17. contracts for sale of fixtures not within the Statute of Frauds, 248. memorandum of sale requires conveyance stamp, 249. reversionary interest will pass by writing not under seal, 249. not goods and chattels within Statute of Frauds, 249. nor an interest in land, 249. as between lUDrtgagor and mortgagee, 249. valuation of fixture.s, 250. as between outgoing and incoming tenant, 250, 251. regulated by custom, 251. do not pass to trustee in bankruptcy, 339. schedule of fixtures, 251. stamp duty upon sale of, 251. Food and water to animals impounded. — See Impounding. FoRCiBLK entry endangering breach of the peace, 217. FoRFEiTUitE for treason or felony, 19. determination of term by, 201. re-entry for. — See Re-entry. relief against forfeiture for breach of covenant to insure, 85, 86. — See Covenant. for non-payment of rent demand necessary, 214. by disclaimer. — See Disclaimer. waiver of. — See Waiver. Franchise, lease of, 30. fairs, 30. markets, 30. ferries, 30. tolls, 30. Fraud, plea of, to action for not granting a lease, 107. Frauds. — See Statute op Frauds. Fraudulent representation — of collateral matter will not avoid the lease, 106. Fraudulent removal to avoid distress, 154, 155. Fruit Trees, waste as to, 177. Furnished apartments. — See Lodgings. Furniture, rent does not issue out of, 27. distrained for rent, how kept, 162, 163. Further assurance, covenant for, runs with the land, 260. G. Game, rights of hunting, shooting, and fishing may be leased, 31. exceptions and reservations of, 61. distrainable, 153, n. [q). duties with respect to, 192. — See Action. where exclusive right of shooting rescinded, 192. unreasonably excessive, 192, 193. Give, no covenant implied from the word, 102. Goods and Chattels. — See Furniture. may be leased, 28. fixtures not within Statute of Frauds, 248. 394 INDEX. GUANGE, what the word includes, 52. Grant, no covenant imiilifd from the word, 102. leases of things in, 28. Growing crops. — See Corn, Kmblemknts, Holding Over, Distress. Guardians of Unions. — See Pauisu OFriCERs. in socage, leases by, 16. by election, leases by, 17. confirmation by infant of leases by guardian, IG. by nature, leases by, 1 (J. may make lease at will, 16. testainentar}' leases by, 16. lease for years by, whether void, 16. appointed by Lord Chancellor, leases by, 16. appointed for infant executor, 17. H. Habekdu.m, 62. effect of the premises upon, 62, 63. eflfect upon the commeuoemeut of the term, 63-G7. Habitable repair, 84. Habitation, house unfit for, 100. Hay. — See Corn. Hat-BOTE, lease of, 29. Heik, how affected by covenants, 2ti5. Herbage, lease of, reserving rent, 75. Hereditaments, what is included in the word, 53. Holding Over. — See Effluxion of Time. tenant to give up po.ssession at end of term, 216. tenant to give up fixtures, 216. growing, 216. damages for, 216. under-tenant holding over, tenant still liable, 216. — See Remainderman. entry by landlord, 216. without breach of the peace, 217. if forcibly, liable to be indicted, 217. claim for mesne profits, rent, and damages may not be joined in ejectment, 217. — See Ejectment. action for double value. — See Double Value. action or distress for double rent. — See Double Rent. by husband of wife's estate, 278. — See Marriage. Horses, distress of, at livery stables, 151. House, what is included in the word, 53. HouSE-BOTE, lease of, 29. Hunting, shooting, and fishing. — See Game. Husband and Wife — leasing wife's land, 6. under Settled Estates Act, 6, 7, 8. confirmation of lease by wife, 7. leasing wife's chattel interests, 8. leases by and to married women. — See Married Women. leases by, must be by deed, 33. effect of marriage of female lessor or lessee. — See Marriage. Husbandry. — See Cultivation, Covenants. I. Idiots, leases by, 18. leases to, 23. INDEX. 395 Illegal distress, remedies for, 167-174. See Distress. covenants, 77, 78. Implied authority to distrain, 1-12. covenants. — See Covenants. Impossible covenants, 78. Impounding of cattle under distress, 160. Impuovements, compensation for. — See AoRicL'LTnRAL Holdings Act. money expended on faith of a lease, 1S9. Incapacity to make leases, 18-20. to accept leases, 23, 24. Incorporeal hereditaments, lease of, 28, 31. Incoming tenant. — See Emblements. Incumbents, leases by, 14. Indenture. — See Deed. Infants, leases by, 20, 21. election as to, 24. acts necessary to show election, 21. confirmation of leases by, 21. renewals of leases by, 22. leases to, 22. election as to, 25. renewal as to, 25. Injunction for waste against tenant for life without impeachment for waste, 178, 186. to restrain breach of covenant, 93. not to restrain ejectment for non-repair, 183. Judicature Act, 1873, s. 25, sub.-sec. p., 183, n. (on, ll'S. Usage. — See Custom. Use and occupation. — See Action. Usual covenants, what included in, 8G, 87, n. [x), 108. Utensils of trade, exempt from distress, 153. Y. Valuation, as V)etween outgoing and incoming tenant, 250. emblements, 233, 235. —See Agricultual Holdings Act. fixtures, 250. of distress, 159, 163, 164. Verbal disclaimer, 207. leases, 33, 36. Vexatious second distress, 157. Vicars, leases by. — Ses Ecclesiastical Corporations. Void and Voidable Leases, void as to part void altogether, 2. form of clause in lease as to, 106. made void by some act of lessor, 106. lessee cannot elect to make lease void, 106. fraudulent representation does not avoid lease, 106, 107. Voluntary "Waste. — See "Waste. W. "Waiver, distraining for rent after forfeiture, 156, 204. acts of landlord may operate as a waiver of forfeiture, 205. receipt of rent operating as a waiver, 205, 206. action for rent, 205. notice to repair a waiver, 205. insufficient distress no waiver, 205. of continuing breach, 206. knowledge of forfeiture by lessor, 206. confined to one breach under the 23 & 24 Vict. c. 38, s. 6., 206, 207. of notice to quit disclaimer, 212. of double rent, 227. of double value, 225. of disclaimer, 207.— See Disclaimer. of notice to quit, 207, 215. — See Notice to Quit. "Warrant under Small Tenements Act, 219. Waste, leases by tenant for life of settled estate not to be made with- out impeachment of, 5. definition of, 175. voluntary and permissive, 175. 410 INDEX. Waste, tenant in fee-simple or tail not liable for, 175. estovers and botes, 175. by tenant for j-ears or life, 175, 176. tenant at will not liable for, 170. of tlie soil, 176. of buildings, 177. of trees, fences, 177. of fruit trees, 177. (if live-stock, 177. impeachment of, 178, 186. injunction against tenant without impeachment of waste, 178, 186. tenant in common cannot bring trespass for waste against co-tenant, 178. may have injunction, 185. [ action for waste, 182. by tire. — See Fire. for neglect of cultivation.- — See Cultivation. injunction for waste. — See Injunction. Wat, leiise of right of, 29, 30. must be by deed, 33. right of appurtenant without deed, 33, 57, 58. Weekly tenancy. — See Lodgings. reasonable time to remove goods, 194. reasonable notice to quit, 212, — See NOTICE to Quit. no double rent, 227. Wife. — See Husband and Wife, Marriage. Will, tenants at, cannot demise, 8. estate at will under Statute of Frauds, 34-37. liow changed into yearly tenancy, 37. tenancy at will, 68. duration of, 69, 71. demise for years, with proviso to enter at will, 69. where constructive yearly tenancy inconsistent with facts, 69. agreement for future lease, C9. payment of rent presumptive tenancy from year to year, 69, 72. mortgagor and mortgagee, 70. determination of, 71. reasonable time to remove his goods, 194. not entitled to notice to quit, 212. not liable for waste, 176. Winding-up under Companies' Act, 1862, 274. Without impeachment of waste.- — Waste. WoRD-s op Demise. — See Demise-Lease. Writs of execution, effect on relation of parties to a lease, 278. assignment by sheriff on writ i>i fieri facias, 278. liability of assignee, 278. of les.see, 278. equitable reversionary interest cannot be sold, 278. provisions of the 1 & 2 Yict. c. 110, s. 11, 278. Writs of execution, return by sheriff, 280. operates as assignment of revision, 280. sheriff may deliver possession where debtor in occupier, 280. but tenants cannot be turned out, 280. tenant by elegit may distrain, 280. of possession, 218. Wrongful distress. — See Distress. INDKX. 41 I Y. Yeak, tenant for a, uot entitled to notice to quit, 212. Yeakly tenancy presumed, '66, 37, 72. by jiayuient of rent, 36, 39. on terms of void lease, 38. unless inconsistent with yearly tenancy, 31*. commencement of the term, 63. on tenant holding over, 194. Years, tenant for, lease by, S. liability for waste, 76. may commence in future, 34, 65. duration of, 68. tenancy for, certainty of term, 67, 6S. Yeau Ti) Yeak, tenant from, lease liy, 8. tenancy froui, implied. — See Ykaui.y Tknani'y. TIIK END. IRINTEU JiY UAI.r.ANTYNE, HANSON AND CO. EDINIIUKCH AND I ONDON UCSOUlHlH' AA 000 869 338 4 6>'>.;2>,: !> »" ^^^ ^