^ f iiTlrnT II" UNIVERSITY OF CALIFORNIA LOS ANGFLES SCHOOL OF LAW LIBRARY <^ .^-^^-^. ^ THE LAW LA^TDLOED A^TD teMKT A COURSE or LECTURES DELIYERED AT THE LAW INSTITUTION. JOHN WILLIAM SMITH, LATE OF THE INNER TEMPLE, BARRISTER-AT-LAW. NOTES AND ADDITIONS BY FKEDEEIC PHILIP MAUDE, OF THE INNER TEMPLE, BARRISTER-AT-LAW. WITH NOTES AND EEFEEENCES TO THE AMEEIGAN CASES BY PHIXEAS PEMBERTON MORRIS. PHILADELPHIA: T. & J.W. JOHNS O^ & C . 197 CHESTNUT STREET. 1856. I Snt Entered, according to Act of Congress, in the year 1856, BY T. & J. W. JOHNSON & Co., in the Clerk's OflSce of the District Court for the Eastern District of Pennsylvania. KING & BAIRD, PRINTKRS, SANSOII STREET. PHEFACE, The following Lectures on the law of Landlord and Tenant were delivered by the late Mr. John William Smith, at the Law Institution, in the years 1841 and 1842. They are printed as they were left by the Author ; all the authorities referred to by him being inserted in the text. The Editor is responsible for the foot-notes, for those portions of the text which are included within brackets, and for the headings to the Lectures, and the marginal notes. The new matter inserted in the foot-notes has been added chiefly with the view of showing the alterations in the law since the Lectures were dehvered, and the practical application, in the later decisions, of the principles mentioned in the text. The Editor has also endeavoured, by the addition of many of the earlier cases, to make the work more useful, not only for Students, but as a Circuit Companion. IV PREFACE. It was thought that the insertion of these additions in the text would break up, inconveniently, the broad general statements of the law of which it mainly consists ; and it was also felt to be desirable that this new matter should be distinctly separated from the original work. The references to Coke upon Littleton are made to the edition of 1823, by Hargrave and Butler, and those to Blackstone's Commentaries relate to the edition of 1825, by Mr. Justice Coleridge. F. P. M. Inner Temple, Aj HI, 1855. PREFACE TO THE AMERICAN EDITION, These lectures are marked by the best characteristics of Mr. Smith's style, combining comprehensiveness, perspicuity and brevity in an admirable manner. In presenting the American Edition to the public, it has been the aim of the Editor to illustrate the text by reference to the American authorities, keeping always in view the Author's plan of confining the work within reasonable limits. There will be found therefore but little dissertation in the notes, but it is hoped an ample reference to authorities as illustrating principles. P. P. M. Philadelphia, February, 1856. CONTENTS. LECTURE I, The pages referred to are those between ( ). PAGE General Yiew of Tenures .... 1 Meaning of terms " Landlord and Tenant" 3 Freehold Tenancies 5 Tenancy in Fee Simple 5 Statute of Quia Emptores 5 Tenancy in Fee Tail 6 Tenancy for Life 6 Tenancies less than Freehold 8 Origin- of. 8 Origin of Action of Ejectment 9 Tenancy for Years 12 Interesse Termini 13 page Must be for a Time certain... 14 Tenancy at Will 15 Determination of 16 By Implication 18 Tenancy from Year to Year.. 20 Origin of 20 Emblements - 20 Notice to cjuit 21 Presumption of Tenancy from Payment of Rent 21 Assignment of. 23 Tenancy by Sufferance 25 Never arises by Contract.... 26 LECTURE II. Points Relating to Creation OP Tenancy 30 Who may be Lessors 31 Tenants in Tail 32 Enabling Statute 33 Requisites of Leases under... 33 Fines and Recoveries Act. . . 35 Tenants for Life 36 Ecclesiastical Persons 37 Enabling Statute 37 Disabling Statutes 37 Husbands leasing Wife's Land 40 Persons acting under Powers 42 Statute of Uses 42 Effects of Leases under Pow- ers 44 Guardians in Socage 40 Testamentary Guardians 46 Executors and Administrators 46 Persons NoN Compos 47 Married Women 47 Infants 48 Leases by, voidable only 48 Joint Tenants and Tenants in Common 49 Parish OflScers 50 Who may be Lessees 52 Infants 53 Married Women 55 Aliens 56 Denizens 56 What May be Leased 57 Things which lie in Grant. ... 58 Things wliich lie in Livery. . . 58 Vlll CONTENTS. LECTURE III. PAGE Points relating to Creation OF Tenancy (continued) 59 The Mode in which Demises ARE effected CO By Deed, by "Writing without Seal, and by Parol 60 Effect of the Statute of Frauds, and of the 8 & 9 Vic. c. 106 62 Effect upon Demise of Non- compliance with Statute of Frauds 65 Requisites to all Leases 67 Proper words of Demise 67 Intention to be looked to. . . . 69 PAGE Difference between Leases and Agreements 70 Stamps 72 Agreements for a Lease can- not be by Parol only 75 Usual Incidents 77 The Premises 77 The Recitals 78 The Habendum 82 Period at which Term com- mences 83 Duration of Term 84 Option to dt^ ermine at End of a certain Period 86 Who may exercise it 86 LECTURE IV. Points relating to Creation OF Tenancy (continued) Usual Incidents to Demises (continued) The Reddendum Nature of Rent Different Kinds of Rent Rent-service Distinction between Reserv- ations and Exceptions General Rule that Rent can- not issue out of an incor- poreal Hereditament Exceptions to Rule Rent must be reserved to Lessor The Covenants For Payment of Rent Other usual Covenants To pay Taxes and Tithe- Rent Charge To Insure Not to carry on particular Trades, 91 92 94 94 96 97 98 100 101' Exceptions out of Demise.. . 103 Provisoes and Conditions. . . 105 Implied Conditions 105 Conditions precedent 106 Conditions subsequent, 107 Powers of Re-entry 108 Waiver of Forfeiture 109 By Receipt of Rent, &c 109 Distinction between Leases void and voidable only.. . . Ill Distinction now overruled. . . 112 Condition not to assign 115 How broken 115 Effect of a License to assign 117 Distinction between Condi- tions not to assign and not to underlet 118 Re-entry upon Non-payment of Rent .^ 119 At Common Law 119 Under the 4 Geo. 2, c. 28; and the 15 & 16 Yict. c. 76 120 CONTENTS. IX LECTURE V. Points Relating to Continu- ance OF Tenancy 124 Rights of Landlord 124 As to Payment of Rent 125 Tirae at which Rent is payable 125 Mode of Payment 127 Rent a Debt of a high nature 128 Effect of taking a Bill or Note in Payment 128 Amount of Payment 129 Deductions which Tenant is entitled to make 129 Land-Tax 133 Income-Tax 133 Tithe Rent-Charge 133 Apportionment 133 Remedies for enforcing Pay- ment OF Rent 136 By Action. 138 Use and Occupation 139 page By Distress 141 What the Landlord may Dis- train 141 General rule as to Chattels personal 141 Exceptions 142 Things absolutely protected. 142 Things conditionally protec- ted 149 Growing Crops 149 Where the Landlord may dis- train 152 General Rule 153 Exceptions 153 Distress on Goods fraudu- lently removed 154 Distress on Cattle on Com- mons, &c., belonging to Premises 156 LECTU Points Relating to Continu- ance OF Tenancy (continued) 157 Remedy by Distress (con- tinued) 158 When the Landlord may dis- train 158 Forehand Rent 158 Time of Day at which Dis- tress may be made 159 After Expiration of Tenancy 160 Effect of the 8 Anne, c. 14, s. 6 160 How the Landlord may Dis- train 162 Warrant 164 Outer Door must be open. . . 165 Seizure 166 Inventory 166 Notice 166 Seizure of Goods fraudulently removed 168 What the Landlord must do with the Distress 171 HE VI. Power of Landlord at Com- mon Law 171 Statutory Liability to provide Food for Cattle distrained 173 Statutory Alterations of Power of Landlord 174 Right to Impound on Pre- mises 175 Impounding of Growing Crops 177 Appraisement and Sale 178 Remedies of Tenant for a Wrongful Distress 180 Where Distress is irregular. , 180 Where no Right to Dis- train 182 Where Distress is by a Stranger 182 Where Distress is by Land- lord 182 Proceedings in Replevin 183 Bond 185 CONTENTS. LECTURE VII. PAGE Points Relating to Gontinu- ANCE OF Tenancy (contiQued) 187 Rights of Landlord as to Repairs and Cultivation.. 188 Where no Express Agree- ment 189 Repairs, &c 189 Waste.. 190 At Common Law 190 By Statute 191 Toluntary 192 Permissive 192 By Tenants for Life 192 Not Liable for Damage by Tempest, &c 194 By Tenants for Years 195 Teoants at Will cannot Com- mit 197 Accidental Fire 198 Where there is an Express Agreement 199 PAGE When Tenant is bound to rebuild after Fire 202 Cultivation 203 Custom of Country and Ex- press Agreements 203 Demise without Impeach- ment of Waste 204 Remedies of Landlord for Non-Repair, etc 204 By Action 205 By Injunction 205 Rights of Tenant against Landlord 205 Right to Possession and Quiet Enjoyment 206 Remedies for Disturbance.. 209 Limit to Landlord's Implied Guarantee against Evic- tion, &c 210 Effect of Express Contracts against Eviction, &c 212 LECTURE VIIL Points Relating to Determi- nation OF the Tenancy 215 Ways in which Tenancy may Deterotne 215 By Effluxion of Time 216 Adverse Possession since the 3&4 Wm. 4,c.27 216 Yearly Tenancy upon a Hold- ing over 219 By Surrender 222 Express 223 At Common Law 224 Since Statute of Frauds, and the 8 & 9 Yic. c. 106 224 By Operation of Law 225 By taking a new Lease 225 By other Acts 226 Rights of third Parties not affected 231 Effect upon Rights of Sur- renderor 231 For Purpose of Renewal... 232 By Forfeiture 233 Disclaimer 233 By Notice to Quit 234 When to be given 234 In what Form 237 Effect of Mistakes in 237 How Served 239 How Waived 240 By Receipt of Rent 240 By Distress, &c 240 Rights of Parties on Deter- mination OF Tenancy 241 Right of Landlord to Posses- sion 241 Small Tenements Acts 243 Proceedings under the 11 Geo. 2, c. 19, s. 16 244 Double Yalue 244 Double Rent 245 CONTENTS. XI LECTURE IX. PAGE Rights of Parties on Determi- nation OF Tenancy (con- tinued) 247 Emblements 247 Where there is no Contract. 248 "When they may be claimed. 249 Not when Tenancy is deter- mined by act of Tenant. .. 251 Out of what they may be claimed 253 Entry to take them 256 Where there is a Contract express or implied 256 Custom of the Country 256 Way-going Crops' 256 PAGE Fixtures 262 Where no express Agree- ment 262 Annexations to Fi'eehold. . . 262 Eelaxation of Rule as to 264 Tenant's Fixtures 264 Eules for determining what are 266 Trade Fixtures 267 Wider Rule with respect to. 267 Agricultural Fixtures 270 When Removal must be made 272 Where express Agreement. . 274 Valuation 275 LECTURE X. Points relating to a change of Parties to the Demise 277 Contracts not assignable.. . . 278 Exceptions 278 Estates assignable 279 Assignment 279 By act of Parties 279 How effected 279 By Landlord 280 Attornment 280 Notice to Tena,nt 281 By Tenant 281 Effect of Statute of Frauds, and of the 8 & 9 Vic. c. 106 281 Consequences of Assignment 282 At Common Law 282 Since the 32 Hen. 8, c. 34... 284 Construction of Statute 285 Covenants running with Land and with Reversion 286 Implied Covenants 287 Express Covenants 288 Effect of "Assigns" being mentioned 289 Position of Assignor and As- signee 292 Lessee still liable on express Covenants 293 Otherwise with respect to Assignee 294 Assignment of part of Land 295 Of part of Reversion, 296 Of Reversion in part of Land 296 Conditions not apportionable 297 By Act of Law 297 By Death of Lessor 297 By Death of Lessee 299 Liability of Executor 300 By Bankruptcy 302 By Insolvency 305 EKEATA. Page 37, note, fifth line, for " demesne" read " domain." " 38, " second line, for "powers" read "rules of property." " 90, " thirteenth line, for " not exceeding two years," read " not exceeding twenty-one years." " 102, «' ninth and tenth lines, for " 8 and 9 Vict, c. 106, s. 5," read " 8 and 9 Vict., c. 106, s. 4." " 245, " eleventh line, after the words "Judge Woodward who delivers the opinion of the Court," read " in Irving vs. Covode." TABLE OF CASES The pages referred to are those within ( ). Abbey v. Petcli, 152 Ackland v. Lutley, 84 Acton's Case, 37 Adams v Grane, 146 Alcenius v. Nygren, 57 Aldenburgh v. Peaple, 160 Alford V. Vickery, 237, 240 Allen V. Flicker, 179 V. Sharp, 183 Amfield v. White, 98 Andrew v. Pearce, 208 Andrew's Case, 211, 298 Anon, 195, 299 V. Cooper, 162 Ansell V. Robson, 302 Ardea v. PuUen, 206 Arnsby v. "Woodward, 113 Ash V Dawnay, 176 Ashcroft V. Bourne, 244 Ashmore v. Hardy, 170 Attorney General v. Cox, 232 V. Duke of Marl- borough, 189 Auriol V. Mills, 292, 304 Austen v. Howard, 185 Auworth V. Johnson, 195, 196 Aveline v. Whisson, 97 Avenell v. Croker, 179, 180 B. Bachelour v. Gage, 293 Badely v. Vigurs, 296 Bagge V. Mawby, 163 Bailey v. Mason, 115 Baker v. Dewey, 81 V Greeuhill, 98 V. Heard, 81 V. Holtzapffell, 140, 206 V. Walker, 128 Ball V. Cullimore, 16 Bally V. Wells, 118, 290 Bandy v. Cartwright, 207 Barclay v. Raine, 290 Barden's Case, 251 Barnard v. Godscall, 293 Barnfather v. Jordan, 294 Barrett v. Barrett, 193 V. Rolph, 282 Barwick v. Foster, 134 Basten v. Carew, 244 Baxter v. Browne, 69 Bayley v. Bradley, 32, 81 Beale v. Sanders, 65, 66, 221 Beavan v. Delahay, 161, 257, 261 V. M'Donnell, 48 Beckett v. Bradley, 78 Beck V. Rebow, 267 Beely v. Purry, 280 Beer v. Beer, 49, 51, 137 Belfour v. Weston, 140, 206 Berkeley v. Hardy, 66, 78 Berrey v. Lindley, 22, 65, 66, 235 Bertie v. Beaumont, 14, 140 Bessell v. Landsberg, 224, 235 Beverley's Case, 47 XIV TABLE OF CASES. Billinghurst v. Speerman, 300 Bickibrd v. Parsou, 285, 294 Biustead v. Buck, 148 Bird V. Higginson, 61, 92 Bisco V. Holte, 37 Bishop V. Bryant, 179 V. Howard, 23 Birch V. Wright, 139 Blyth V. Dennett, 111, 241 V. Smith, 202 Bolton (Lord) v. Tomliu, 64, 66, 76 Boodle V. Cambell, 130, 212 Boone, v. Eyre, 107 Boraston v. Green, 257, 258 Borradaile v. Hunter, 97 Botting V. Martin, 282 Bowman v. Taylor, 78 Bracegirdle ii. Heald, 64 Bradburne v. Botfield, 51 Bradbury v. Wright, 89, 90, 98 Braithwaite v. Cooksey, 160 Braythwayte v. Hitchcock, 24 Brandon v. Nesbitt, 57 Brett V. Cumberland, 293 Brewster v. Kitchell, 98, 99 Briggs V. Sowry, 148, 164, 304, 305 Brittain v. Lloyd, 131, 132 Bromley v. Holden, 155 Brook V. Bulkeley, 288 V. Spong, 15, 108, 249 Brooker v. Scott, 55 Brown v. Amyot, 137 Brown v. Arundell, 147 V. Glen, 165 V. Notley, 14 V. Shevill, 146 V. Story, 281 V. Powell, 176 Browning v. Beston, 81 V. Dann, 165 Brummel v. Macpherson, 117 Buckley v. Taylor, 159 Bull V. Sibbs, 140 Buckland v. Butterfield, 266, 268 Buckley v. Nightingale, 299 V. Pirk, 288, 301 Bullock V. Dommitt, 202 Bulwer v. Bulwer, 249, 250, 251 Bunch V. Kennington, 149 Burdett v. Withers, 200 Burnett v. Lynch. 209, 295 Burton v. Brooks, 19 V. Reevell, 63 Bushell V. Beavan, 78 c. Cadby v. Martinez, 235, 239 Caldecott v. Smythies, 257 Campbell v. Lewis, 288 Cannock v. Jones, 96, 201 Canterbury (Viscount) v. The Attor- ney-General, 199 Capel V. Buszard, 153 Carpenter v. Buller, 78, 79 V. Oolins, 17 Carter v. Carter, 132 V. Warne, 302 Cartwright v. Smith, 170 Chapman v. Bluck, 71 Chapman v. Towner, 23, 71 Charters v. Sherrock, 159 Chesterfield (Earl of) v. Duke of Bolton, 202. Christ's Hospital (Governors of w. Harrild, 89, 98. Christy v. Tancred, 141 Church V. Brown, 116 Clark V. Gaskarth, 152 V. Hume, 302 V. Woods, 164 Clarke v. Roystone, 203, 260 V. Webb, 303 Clayton's Case, 83 Clayton v. Blakey, 17, 65 Clift V. Schwabe, 97 Clun's Case, 126, 127, 134 Cobb V. Stokes, 216 Cockson V. Cock, 290 Coe V. Clay, 207 Colegrave v. Dias Santos, 265, 267 OolUns V Crouch, 300 Cooch V. Goodman, 97 TABLE OF CASES. XV Congleton (Mayor of) v. Pattison, 288, 289 Cooper V. Eobinson, 83 Copeland v. Stephens, 302 Cottee V. Eiclaardson, 282 Coulson V. White, 205 Courtney v. Taylor, 96 Cox V. Bent, 23 — — V. Painter, 176 Creagh v. Blood, 229 Cromwell's (Lord) Case, 105 Crosier v. Tompkinson, 148 Cross V. Jordan, 121 Crowley v. Yitty, 244 Crowther v. Ramsbottom, 3 65 Crusoe v. Bugby, 116 Culling V. Tuffnal, 275 Cumming v. Bedborough, 100, 131, 133 Curtis V. Wheeler, 162 Cutter V. Powell, 107 Cutting V. Derby, 125 D Dalby v. Hirst, 262 Dalton V. Whittem, 145 Daniel v. Grawiie, 74, 95, 162. Dann v. Spurrier, 86 Darby v. Harris, 143, 267 Darcy (Lord) v. Askwith, 192 Darlington v. Pritchard, 243 Davis V. Burrell, 99, 243 V. Eyton, 116, 250, 251 V. Gyde, 129 V. Jones, 275 Davies v. Powell, 148 Davison v. Stanley, 226 V. Wilson, 243 Dawson v. Cropp, 163 V. Dyer, 209 Dayrell v. Hoare, 45 Dean v. Allalley, 269 De Medina v. Norman, 207 Denn v Cartright, 236 Deptford (Churchwardens of) v. Sketchley, 52 Dibble v. Bowater, 127, 155, 170 Dodd v. Acklora, 230 Doe V. Alexander, 121 V. Amey, 23, 203, 204, 221 V, Augell, 20, 163, 219 V. Archer, 36 V. Carew, 116 V. Carter, 17, 20, 116, 219 V. Chamberlain, 18 V. Clarke, 71 V. Collinge, 37, 40 V. Cooper, 234 V. Courtenay, 22'6 V. Cox, 24, 25 V. Crago, 24 V. Crick, 237, 240 V. Culliford, 237, 238 V. Bancks, 112 V. Batten, 240 V. Bell, 65, 221 V. Benham, 52, 88, 16"2 V. Bevau, 116 V. Birch, 110, 111, 113 V. Bird, 101 ij. Bliss, 118, 119 V. Brown, 281 V. Bold, 20, 219 V, Bowditch, 120 V. Burliogton (Lord), 193 V. Butcher, 36, 112 V. Davies, 24, 25 V. Day, 83 V. Dixon, 86 V. Dobell, 235 V. Donovan, 25 V. Dyson, 120 V. Dunbar, 239 V. Errington, 12, 49 V. Evans, 234 V. Forwood, 225 V. Foster, 52, 54, 237 — V. Franks, 120 — V. Fuchau, 120 — V. Geekie, 236 — V. Gladwin, 101, 110 — V. Goldwin, 238, 239, 245 XVI TABLE OF CASES. Doe V. Gower, 53 Doe V. Price, 16, 17, 104 V. Green, 25, 235, 236 V. Pritchard, 119 V. Gwillim, 249 V. Pullen, 23 V. Gwinnell, 6 V. Pyke, 231 V. Hamilton, 52 V. Raffan, 24, 25 V. Hazell, 24 V. Eees, 109 V. Hinde, 88 V. Rhodes, 236 V. Hole, 45 V. Ries, 71 V. Howard, 236 V. Rock, 20 V. Hughes, 236, 237 V. Rollings, 31, 234 V. Htimplireys, 241 V. Rowlands, 201 V. lugleby, 116 V. Rugely, 116 V. Inglis, 241 V. Shewin, 100 V. Jenkins, 33 V. Smaridge, 236 V. Jackson, 238, 245 ■ V. Smith, 236, 238 V. Johnson, 236 V. Somei-ville, 40 V. Jones, 17, 19, 11 0, 200 V. Spence, 236 V. Kightley, 235, 237 V. Spry, 101 V. Laming, 116 V. Stapleton, 236 ■ V. Lawrence, 94 V. Steel, 241 V. Lea, 235 V. Steele, 82 V. Lewis, 110, 120 V. Stephens, 45 V. Lines, 222, 236 V. Sturges, 47 V. Lloyd, 92 V. Summersett, 237 V. Lock, 34, 45, 91, 104 V. Taniere, 23, 38 I'. Long, 234 V. Terry, 52 V. Marchetti, 233 V. Thomas, 17, 40, 225 V. Masters, 119 V. Turner, 16, 20, 219 V. Matthews, 236 V. Ulph, 83, 100 V. Menx, 110, 201 V. Walker, 13 V. Milward, 224, 227 V. Wandlass, 120 V. M'Kaeg, 19 y. Watkins, 236, 339 V. Mofifatt, 63, 222 V. Watts, 21, 22, 36 V. Moore, 20, 219 V. Webster, 53 V. Morphett, 236, 238 V. Wells, 233 V. Morris, 25 V. Williams, 34, 45, 115, 161 V. Morse, 22 234 V. Ongley, 23 V. Wilkinson, 238 V. Osenham, 163 V. Wilson, 121 V. Page, 20, 219 V. Wood, 24, 230 V. Palmer, 241 V. Woodbridge, 110 ?7. Peck. 110,114,118 V. Woodman, 240 V. Phillips, 220 V. Worsley, 116 V. Poole, 226 V. Wrightman, 235 V. Porter, 21 V. Yarborough (Lord), 40 V. Powell, 72 d. Cox, V. , 237 TABLE OF CASES. XVll Doe d. Dixon v, v. Eoe, 120 . d Gretton, v. Roe, 121 d. Powell, V. Roe, 121 Dormay v. Borradaile, 97 Doubitofte v. Curteene, 92 Doughty V. Bowman, 291 Draper v. Crofts, 141 Druce v. Denison, 41 Dublin and Wicklow Railway Co. V. Black, 49 Duck V. Braddyll, 143 Dunk V. Hunter, 70, 161 Dunn V. Di Nuovo, 212, 224 Dumpor's Case, 117, 134 Duppa V. Mayo, 119, 126, 158, 290 Durham and Sunderland Railway Co., V. Walker, 91, 104 Dyke v. Sweeting, 299 E. Eagleton, v. Gutteridge, 71 Eccleston v. Olipsham, 52 Edge V. Pemberton, 192 V. Strafford, 13, 75, 140 Edmonds v. Challis, 183, 185 Egerton v. Earl Brownlow, 108 Elliott V. Bishop, 262, 207, 275 V. Turner, 86 ElUs V. Taylor, 176 Elwes V. Mawe, 262, 269, 270, 271, 273, 274 Ely (Dean of) v. Cash, 163 Eraott V. Cole, 92 Empson v. Soden, 269 Enys V. Donnithorne, 85 Evans v. Elliot, 281 V. Roberts, 253 Exall V. Partridge, 129 F. Farewell v. Dickenson, 92 Farmer v. Rogers, 224 Faviell v. Gaskoin, 261, 276 Fenton v. Logan, 149 Field V. Adams, 149 Filliter v. Phippard, 199 2 Finch V. Miller, 221 Finch V. Throckmorton, 112 Findon v. M'Laren, 147 Firth V. Purvis, 176 Fisher v. Dixon, 269 Fitzgerald v. Fitzgerald, 41 Fitzherbert v. Shaw, 273 Fleming v. Snook, 205 Fletcher v. Marillier, 155 V. Saunders, 179 Foley V. Addenbrook, 52, 275 Fordyce v. Bridges, 137 Foster v. Spooner, 192 Foquet v. Moor, 225 Fowle V. Welsh, 213 Franklin v. Carter, 133 Freeman v. Rosher, 181 Frusher v. Lee, 152 Fryer v. Coombs, 45 Furley v. Wood, 235 Farneaux v. Fotherby, 154, 170 G. Gage V. Acton, 128 Gardiner v. Williamson, 61, 92 Garrard v. Tuck, 220 Geary v. Bearcroft, 14 Gent V. Cutts, 185 George v. Chambers, 183 Gibson v. Courthope, 303 V. Ireson, 147 V. Kirk, 139 V. Wells, 196, 197 Gifford V. Young, 299 Giles V. Hooper, 96 Gilman v. Elton, 145 Gisbourn v. Hurst, 145 Glen V. Dungey, 13, 73 Goode V. Howells, 61 Goodland v. Blewith, 127 Goodright v. Cordweut, 240 V. Davids, 109 V. Mark, 86 — ■ V. Richardson, 148 V. Straphan, 48 XVlll TABLE OF CASES. Goodtitle v. Herbert, 17 Gore L'. Lloyd, 71 V. Wright, 212, 224 Gorton v. Falkuer, 142, 149 Gott V. Gandy, 196, 206 Gould V. Bradstock, 165 Gouldswortli v. Elliott, 52 Graham v. Allsop, 130 V. Whichelo, 230 Grainger v. Collins, 105 Grant v. Ellis, 163 Grantham v. Hawley, 250 Graves v. Key, 81 V. Weld, 254 Great Northern Eail way Co. v. Har- rison, 96 Greenaway v. Adams, 116 V. Hart, 292 Greene v. Cole, 192, 197, 205 Grescott v. Green, 295 Griffenhoofe v. Daubuz, 100 Griffin v. Scott, 179 Griffith V. Goodhand, 97 Griffiths V. Puleston, 161, 256, 261 Grissell v. Robinson, 131 Grymes v. Boweren, 264, 265 Gulliver v. Cosens, 176 Gutteridge v. Munyard, 200 H. Haldane v. Johnson, 126 Hall V. Burgess, 139 Hallen v. Runder, 262, 273 Hamerton v. Stead, 225 Hancock v. Cafiyn, 209 Hanson v. Stevenson, 302 Harley v. King, 295 Harnett v. Maitland, 197 Harper v. Taswell, 179 Harrington, Earl of. In re, 244 V. Ramsay, 244 Harris v. Jones, 200 Harrison v. Barnby, 52 Harrison v. Fane, 55 V. Jackson, 66 Harrold v. Whitaker, 52 Hartley v. Moxham, 166 Hartshorne v. Watson, 114 Hart V. Windsor, 200, 206, 207 Harvey v. Brydges, 242 Harvey v. Harvey, 267 Harvey v. Pocock, 145, 172 Hastings v. Wilson, 302 Hatch V. Hale, 165 Hatter v. Ash, 83, 84 Hapvard v. Haswell, 71 Heap V. Barton, 269, 274 Heatherley v. Weston, 49 Hegan v. Johnson, 161 Hellawell v. Eastwood, 143, 263, 267 269 Hellier v. Casbard, 96 Heme v. Bembow, 197 Hill V. Barclay, 116 Hill V. Saunders, 41 Hills V. Learning, 79 Hindle v. Blades, 184 Holder v. Taylor, 207 Holmes v. Blogg. 54 Holtzapffel-v. Baker, 203 Hopkinson v. Lee, 52 Hopkins v. Prescott, 57 Hopwood V. Whaley, 301 Hornidge v. Wilson, 301 Horsefall v. Testar, 201 Hough V. May, 127 How V. Kennett, 303 Howard v. Shaw, 18, 139 ~ V. Wemsley, 235 Huffell V. Armistead, 25, 237 Hull V. Vaughan, 140 Humfrey v. Gery, 163 Hunt V. Bishop, 108, 201 Hunter v. Hunt, 132 Huntley v. Russell, 193, 271 Hutchius V. Chambers, 181 V. Scott, 166 Hutton V. Warren, 203, 258, 262 Hyatt v. Griffiths, 204, 222 TABLE OF CASES. XIX Iggulden V. May, 97 Ireland v. Bircham, 210 V. Higgius, 148 Isherwood v. Oldknow, 44 Izon V. Gorton, 140, 202, 235 Jackson i'. Cator, 205 V. Cobbin, 105 V. Hanson, 184 Jeffrey v. Bastard, 184 Jenner v. Clegg, 240 Jervis v. Bruton, 189 Jevens v. Harridge, 56 Jewel's Case, 92, 95 Johnson V. Faulkner, 150 Johnson v, Jones, 129 Johnstone v. Huddlestone, 224, 227, 229, 235, 246 Jones V. Carter, 110, 114 V. Chapman, 243 V. Hill, 197 V. Marsh, 239 - V. Morris, 130 V. Reynolds, 71 V. Thorne, 101 Joule V. Jackson, 147 Jourdain v. Wilson, 290 K Keating v. Keating, 47 Keates v. The Earl of Cadogan, 196 Keech v. Hall, 281 Keightley v. Watson, 51 Kenney v. May, 180 Kerby v. Harding, 166, 167 Keyse v. Powell, 13 Ketsey's Case, 53, 54 Kidwelly v. Brand, 296 King V. Jones, 298 Kingdon v. Nottle, 298 Kingston's (Dutchess of) Case, 78 Kinnersley v. Orpe, 116 Kinsbury v. Collins, 235, 251 Kirtland v. Pounsett, 140 Kirton v. Elliott, 54 Knevett v. Poole, 251 Knight V. Bennett, 161 Knight's Case, 94 Knipe v. Palmer, 48 Ladd V. Thomas, 176 Lainson v. Tremere, 78,79 Lampon v. Corke, 78, 81 Lane v. Dixon, 144, 263 Lapierre v. Mcintosh, 56 Latham v. Atwood, 253 Lawton v. Lawton, 265 V. Salmon, 269 Layton v. Hurry, 174 Leach v. Thomas, 196 Lee V. Smith, 22, 63, 159 Leeds v. Cheetham, 140, 203, 206 Leftly V. Mills, 125 Legh V. Heald, 103, 104 Lekeux v. Nash, 294 Lewis V. Campbell, 131 V. Smith, 213 Liford's Case, 103 Litchfield v. Eeady, 281 Lloyd V. Crispe, 119 V. Rosbee, 245 Logan V. Hall, 202 Loudon (Mayor of) v. Hedger, 205 Lougher v, Williams 288, 297, 298 Lovelock V. Franklyn, 73 Lowe V. Griffith, 53, 54 V. Ross, 13, 140 Lowndes v. Earl of Stamford, 138 Lubbock V. Tribe, 131 Lucas V. Nockells, 165 Lyde v. Russell, 273 Lyon V. Reed, 226, 228, 229, 230 V. Weldon, 180 M. Machell v. Clarke, 33 Macher v. The Foundling Hospital 117 XX TABLE OF CASES. Macldntosh v. Trotter, 263, 273 Magennis r. McCullogh. 225 Maguay v. Edwards, 289 Mann v. Lovejoy, 73 Manning v. Flight, 305 Mansfield (Earl of) v. Blackburne, 269, 275 Mantle v. Wallington, 49 Mantz V. Goring, 200 Markby, In re, 137 Marriott v. Coston, 201 Martin v. Gilliam, 192 Martyn v. Bradley, 275 Mason v. Newland, 174 Masters v. Farris, 182 Matthias v. Mesnard, 145 Mayho v. Biickhurst, 286 Mechelen v. "Wallace, 76 Meggison v. Lady Glamis, 61, 92 Merrill v. Frame, 206, 207, 213 Messenger v. Armstrong, 216 Messent v. Reynolds, 105, 207 Micklethwait v. Winter, 105 Middlemore v. Goodale, 288 Miller v. Green, 150 Mills V. Goff, 238 Milward v. Caffin, 104 Minshall v. Lloyd, 273 M'Kenzie v. M'Leod, 202 Molton V. Camroux, 48 Morgan v. Bissell, 71 V. Pike, 98 Morley v. Pincombe, 143 Morris v. Crouch, 184 Morrison v. Chadwick, 212, 224, 230 Mortimer v. Hartley, 86 Moss V. Gallimore, 166,281 Mounson v. Eedshaw, 185 Mountjoy v. Collier, 141, 245 Mungean v. Wheatley, 183 Mnsgrave v. Emmerson, 89 Muspratt v. Gregory, 147 N. Xash V. Palmer, 213 Naylor v. CoUinge, 275 Neal V. Eatcliffi?, 96, 201 Xeale v. Mackenzie, 61, 68, 212 V. Wyllie, 201 Nepean v. Doe, 20, 27, 163, 218 Newcomb v. Harvey, 162 Newman v. Anderton, 92 Xewry & Enniskillen Railway Co. V. Coombe, 49, 54 Newton v. AlUn, 212 V. Harland, 242, 243 V. Scott, 164, 305 Niblett V. Smith, 143 Nickells v. Atherstone, 230 North Western Railway M 'Michael, 49, 55 Norton v. Acklane, 293 Nuttall V. Staunton, 160 O. Gates V. Frith, 94 Odell V. Wake, 294 Gland's Case, 249, 251 Oldershaw v. Holt, 137 Onslow V. Corrie, 303. Opperman v. Smith, 154 Orby V. Mohuu, 95 Orme v. Broughton, 298 Owen V. Barrow, 127 V. De Beauvoir, 163 V. Legh, 150 Co. P. Packer v. Gibbins, 140, 203 Packington's Case, 204 Page V. Godden, 302 V. More, 245 Paget V. Foley, 163 Palmer v. Earith, 99 V. Edwards, 296 Pannell v. Mill, 91, 104 Paradine v. Jane, 191, 195, 211 Pargeter v. Harris, 78, 286, 289 Parker v. Harris, 95 Parrott v. Anderson, 129 Parry v. Duncan, 154, 170 Parsons ;;. Gingell, 147 TABLE OF CASES. XXI Paul V. Nurse, 117, 294 Pawle V. Gunn, 131 Payne v. Burridge, 98 V. Haine, 200 Peacock v. Purvis, 148, 150 Pearce v. Davis, 127 Penley v. Watts, 202 Pennant's Case, 31, 114 Pennell v. Woodburn, 202 Penniall v. Harborne, 101 Penry v. Brown, 275 Penton v. Eobart, 268, 273, 274 Peppercorn v. Hoffman, 176 Peters v. Fleming, 55 Phillipps V. Shervill, 164, 306 V. Smith, 192 Philpot V. Hoare, 290 Piggot V. Brittles, 152, 179 Pilbrow V. Pilbrow's Atmospheric Railway Co., 78, 80 Pincomb v. Thomas, 103, 104 Pincombe v. Budge, 207 Pindar v. Ainsley, 140, 206 Pinero v. Judson, 71 Pinhoru v. Souster, 17 Pitman v. Woodbury, 97, 98 Plumer v. Brisco, 184 Pollock V. Stables, 131 V. Stacy, 162, 282 Pollitt V. Forrest, 95, 162 Pomfret v. Ricroft, 207 Poole V. Archer, 202 V. Longueville, 148, 158 V. Warren, 245 (Mayor of) v. Whitt, 281 Poole's Case, 145, 273 Pordage v. Cole, 107 Porter v. Swetnam, 96 Postman v. Harrell, 156 Potts V. Bell, 57 Poulteney v. Holmes, 282 Powis V. Smith, 50 Pratt V. Brett, 205 Preece v. Corrie, 162 Price V. Dyer, 86 V. Woodhouse, 172 Proudlove v. Twemlow, 150 Pugh V. Duke of Leeds, 84 Pullen V. Palmer, 52 Pyle V. Partridge, 164 Pyne v. Dor, 204 R. Rand v. Yaughan, 155, 170 Randall v. Stevens, 20, 220 Rashleigh v. The South Eastern Railway Co., 96, 290 Rawson v. Eicke, 71 Raymond v. Fitch, 298, 299 Rede v. Farr, 112 Rees V. King, 120 Reeves v. M'Gregor, 37 Reg. V. Aylesbury (Inhabitants of), 99 V. Chawton, 25, 236 V. Leigh, 195 V. Raines, 183 V. Sewell, 244 V. Traill, 244 V. Wall Lynn, 14 V. Westbrook, 88, 95 Regnart v. Porter, 73, 161 Remnant v. Bremridge, 301 Revett V. Brown, 14 Rex V. Banbury, 230 V. Londonthorpe (Inhabitants of), 267 V. Smyth, 242 V. St. Dunstan, 265, 267 V. Topping, 275 Richards v. Easto, 199 Richardson v. Gifford, 65, 66, 221 • V. Langridge, 19, 23 Rich V. Woolley 170 Ricketts v. Weaver, 298, 299 Rider v. Edwards, 185 Ridgway v. Lord Stafford, 152 Rigby V. the Great Western Railway Co., 96 Risely v. Ryle, 23, 73, 95, 162 Roberts v. Barker, 203, 262 V. Davey, 113 XXll TABLE OF CASES. Eobinson v. Hoffman, 164 V. Learoyd, 245 V. Waddington, 178 Rockingham (Lord) v. Penrice, 127 Roden v. Eyton, 180, 181 Roe V. Ashburner, 70 V. Doe, 234 V. Galliers, 116 V. Harrison, 109, 116, 117 V. Hayley, 288 V. Hodgson, 46 V. Sales, 116 V. York (Archbisliop of), 225 Roffey V. Henderson, 145, 273 Rogers v. Humphreys, 44 Rosse (Eai'l of) v. Wainman, 105 Rouch V. The Great Western Rail- way Co., 116 Rountree v. Jacob, 78, 81, Rowden v. Malster, 33 Rubery v. Stevens, 301 Rumball v. Munt, 52 Russell V. Gulwell, 81 Rutland v. Wythe, 45 Ryan v. Shilock, 165 Ryley v. Hicks, 64 S. Sacheverell v Froggatt, 298 Salmon v. Matthews, 92 V. Swann, 13 Salter v. Kidley, 78 Sampson v. Easterby, 290, 291 Sapsford v. Fletcher, 129 Saunders' Case, 192 Scovell & Cavel's Case, 81 Senior v. Armytage, 258 Selby V. Browne 212 Shaw V. Kay, 83 Sheen v. Rickie, 262 Short V. Kalloway, 202 Sibbald v. Roderick, 164 Simons v. Farren, 101 Simpkin v. Ashurst, 26 Simpson v. Clayton, 288 V. Hartopp, 142, 147, 179 Six Carpenters' Case, 171, 176, 181 Skerry v. Preston, 129 Skingley v. Surridge, 164 Slack V. Sharpe, 134, 304 Smith V. Adkins, 52 V. Bole, 34 V. Howell, 202 V. Jersey, 120 V. Lovell, 212, 224 V. Mapleback, 162, 233 V. Marrable, 206 v. Peat, 201, 295 V. Twoart, 140 Snelliug v. Lord Huntingfield, 64 Sorsbie v. Park, 51 Spence v. Chodwick, 191 Spencer's Case, 92, 208, 286, 287, 290 Spencer v. Parry, 131 Standen v. Chrismas, 201, 285 Stanley v. Hayes, 213 V. Towgood, 200 Stanniforth v. Fox, 71 Stansfield v. Hellawell, 183, 185 Stapylton v. Clough, 240 Staveley v. Allcock, 52 Steele v. Mart, 83 Stevenson v. Lambard, 213 V. Newnham, 168 Strafford v. Edge, 76 Straton v. Rastal, 81 Stroud, In re, 23 Stroughill V. Buck, 80 Stubbs V. Parsons, 133 Sturgeon r. Wingfield, 32 Style V. Hearing, 207 Styles V. Wardle, 83 Sullivan v. Bishop, 245 Surplice v. Farnsworth, 140 Sutton V. Temple, 206, 207 Swann v. Earl of Falmouth, 166 Swatman v. Ambler, 97 Syers v. Jonas, 203 Sym's Case, 41 T. Tancred v. Leyland, 168 TABLE OF CASES. XXlll Tasker v. Bullman, 93 Tatem v. Chaplin, 288, 289 Taylerson v. Peters, IGl Taylor v. Henniker, 1G8 V. Horde, 27, 32 V. Shum, 294, 301 V. Young, 305 V. Zamira, 129 Tew V. Jones, 18, 140 <^ Tilney v. Norris, 299 Timinins v. Eowlison, 19, 237, 246 Tinckler v. Prentice, 126 Theed v. Starkey, 99 Thetford (Mayor of) v. Tyler, 23 Thomas v. Cook, 227, 228, 229, 230, 231 Thomas v. Fredricks, 61 V. Harries, 176 Thompson v. Farden, 184 V. Mashiter, 145 V. Thompson, 128 Thompson v. Amey, 73 Thornton v. Adams, 156, 170 Thresher v. East liondon Water- works Company, 275 Thursby v. Plant, 285, 293 Towne v. Campbell, 25, 237 ' V. D'Heinrich, 140 Trappes v. Harter, 143, 144, 269, 275 Tremeere, v. Morison, 301 Trent, r. Hunt 165, 168 Tress v. Savage, 63 Trevivian v. Lawrance, 32 Turner v. Cameron's Coalbrook Steam Coal Company, 281 V. Ford, 14 V. Hardey, 224 V. Lamb, 201 V. Richardson, 302 Twynam v. Plckard, 296, 297 U. Ughtred's Case, 107 Uthwatt I'. Elkins, 53 Valpy V. Manley, 132 Vaughn v. Hancock, 76 V. Meulove, 199 Vaux's (Lord) Case, 85, 86 Yernon v. Smith, 288, 289 Yivian v. Blomberg, 40 Yyvyan v. Arthur, 96, 288, 289 W. Wakefield v. Brown, 52, 288 Wakeman v. Lindsey, 168 Walker v. Hatton, 202 Wallace v. King, 178, 179, 181 Walls V. Atcheson, 230 Walters. Eumbal, 166 Wansbrough v. Maton, 271, 275 Waring v. King, 141 Warman v. Faithful, 71 Warwick v. Noakes, 127 Washborn v. Black, 176 Wathrell v. Howells, 275 Watkinson v. Man, 37 Watson V. Main, 154, 170 V. Waud, 74, 162, 212 Webb V. Plummer, 258, 259 V. Russell, 95, 289 Weeton v. Woodcock, 273 Weigall V. Waters, 202 Walch, V. Myers, 170, 302 West V. Blakeway, 275 V. Nibbs, 176 Westwood V. Cowne, 180 Wharton v. Mackenzie, 55 Wheeler v. Branscombe, 129 V. Montefiore, 14 Whilster v. Paslow, 103 Whiteacre v. Symonds, 241 Whitfield V. Bewit, 192 Whitworth v. Smith, 181 Wickham v. Hawker, 91, 104 V. Lee, 245 Wigglesworth u. Dallison, 203, 251 257, 258 Wilder v. Speer, 172 Wildman v. Wildman, 41 Wiles V. Woodward, 78, 79 XXIV TABLE OF CASES. Wilkins v. Wood, 261 Wilkinson v. Candlish, 127 V. Gaston, 85 V. Hall, 50, 68 Willett V. Earle, 128 Williams v. Burrell, 207, 287, 288, 293, 299 V. Holmes, 147 V. Moor, 49, V. Eoberts, 155 V. Sawyer, 223, 224 V. Stiven, 161 Willison V. Patteson, 57 Wilmot V. Eose, 152 Wilson V. Nightingale, 167 Wilson V. Sewell, 226 Wilton V. Dunn, 131 Wiltshear v. Cottrell, ] 43, 261, 262, 271, 275 Windsor's (Dean and Chapter of) Case, 288 Windsor (Dean of) v. Gover, 92 Winn V. Ingilby, 265 Winterbottom v, Ingham, 18, 139 Wiuterbourne v. Morgan, 181 Wollaston v. Hakewill, 296, 299 301 Wolveridge v. Steward, 295 Woodbridge Union v. Colueis, 24 Wood V. The Copper Miners Co., 96 V. Hewett, 144, 263 V. Nunn, 166 V. Day, 201 Woods V. Durant, 176 Wootou V. Steffenoni, 56, 290 Wright V. Burroughs, 242, 296, 297 V. Dewes, 150 V. Eamscot, 148 V. Smith, 245 Wyburd v. Tuck, 83 Wynne v. Wynne, 107 Y. Yates V. Cole, 296 V. Eastwood, 178 Young V. Eaincock, 78 Z. Zouch V. Parsons, 49 V. Willingale, 240 TABLE OF AMERICAN CASES. The pages referred to are those within [ ]. A. Adams v. Gibney, 207 V. La Comb, 154, 168, 170 Alexander v. Dorsey, 198 Alleu V. Culver, 285, 291 V. Jaquish, 235 - V. Wooley, 285 Alston V. Scales, 124 Anderson v. Darby, 46 Andrews v. Dixon, 148 V. Walcott, 288 Amit V. Garnell, 148 Armstrong v. Wheeler, 295 Astry V. Ballard, 192 Atkins V. Cliilson, 109 Ay res v. Draper, 239 V. Novinger, 245 B. Bacon v. Brown, 221 Bailey v. Wright, 129 V. Delaplaine, 231 Bain v. Clark, 221, 250 Baldwin v. Walker, 281 Bancroft v. Wardell, 140 Bank v. Chamberlain, 49 Bank of Pennsylvania v. Wise, 134 Bank of Utica v. Mersereaux, 234 Bantleon v. Smith, 129, 306 Barnard v. Poor, 198 Baskin v. Seechrist, 234 Baxter v. Eyers, 207 V. Taylor, 124 Beach v. Grain, 198 Beddoes' Ex'rs v. Wadsworth, 288 Bedford v. McElherron, 235, 245 Beecher v. Parmelee, 242 Beeston v. Wright, 148 Beekmau v. Lansing, 148 Beelden v. Saymere, 79 Beers v. St. John, 273 Bell V. Twentyman, 124 Bellows V. Sacket, 124 Bell V. Porter, 161 Beuoist V. SoUee, 161 Bickford v. Page, 288 Bigelow V. Judson, 165 V. Wilson, 84 Biggs V Brown, 258 Binney v. Chapman, 239 Binns v. Hudson, 148 Blacker v. Albertson, 244 Blake v. Delisseline, 306 Blair v. Hardin, 207 Blanchard v. Hilliard, 84 Blantin v. Whitaker, 234 Blashford v. Duncan, 245 Blume V. McClaskin, 140 Boggs V. Black, 245 Bolles V. Beach, 79 Bolton V. Johns, 79 Bool V. Mix, 49 Bosler v. Kuhu, 303 Bourne v. Taylor, 192 Bowdre v. Hampton, 285 Bowen v. Bell, 79 Boyer v. Smith, 234 Bowzer v. Scott, 91, 148, 161 Boyd V. McCombs, 125 Brant v. Livermore, 234 Brewer v. Knapp, 221 Bromley v. Hopewell, 148 Brown v. Crump, 262 V. Sims, 147. V. Staples, 288 V. Vanhorn, 235 Bukup V. Valentine, 161 Burbank v Gould, 79 XXVI TABLE OF AMERICAN CASES. Burd V. Commonwealth, 242 Burden v. Thayer, 281 Burhiius V. Van Zandt, 218 Burr r. Lelais, 84 Burke v. Hale, 234 Butts V. Edwards, 179 Byrne v. Beeson, 234 V. Van Heeson, 46 C. Cadwalader v. Tindall, 147 Caldcleugh v. Hollingsworth, 179 Calvert v. Joliffe, 148 Cannon v. Hatchie, 124. Carrier v. Earle, 19 Carskadden v. McGhee, 47 Carter v. Denman, 288 V. Hammitt, 295 Caswell V. Dietrich, 91 Case V. Davis, 148 Chambers v. Pleak, 234 Chapman v. Holmes, 288 Chase v. Hazleton, 192 Chipman v. Martin, 129 City Council v. Moorehead, 195 Clapp V. Paine, 235 V. Tirrell, 79 Clark V. Everley, 234, 245 V. Jones, 114 V. Gibson, 64 V. Foot, 198 v. Fraley, 151 V. Patterson, 245 V. Redman, 288 V. Yeat, 245 V. Swift, 288 Clason V. Bailey, 64 Clavering v. Clavering, 192 Cleves V. "Willoughby, 206 Clifford V. Beems, 161, 170 Cline V. Black, 198 Cocking V. Ward, 64 Codman v. Jenkins, 140 Cokerv. Pearsall, 231 Colt v. Seldon, 64 Colyer v. Speer, 148 Commonwealth v, Coutner, 149 Commonwealth v. Toram, 242 Coon V. Brickett, 109 Cook V. Champlain Trans. Co. 198 V. Neilson, 235 V. Loxley, 234 Conway v. Starkweather, 221, 235 Cook V. Champlain Trans. Co. 267 Cooper V. Smith, 234 Coonell V. Lamb, 129 Cornell v. Moulton, 84 V. Yanartsdalen, 195 Craig V. Dale, 258, 262 Crocker u. Mann, 161 Crosswell v. Crane, 64 Cummings v. Powell, 49 Cunningham v. Gardner, 245 Curtis V. Hubbard, 165 Cuthbert v. Kuhn, 137 D. Dalgleish v. Grandy, 161 Damarest v. Willard, 288 Daniels v. Pond, 262 Davis V. Brocklebarr, 249, 251 V. GilUam, 192 V. Jewett, 124 V. Thompson, 72, 249, 251 De Chaumont v. Forsyth, 288 Debrow v. Colfax, 249 De Lancey v. Ga Nun, 109, 234 Demi v. Bossier, 258 De Mott V. Hagemann, 91 Den V. Adams, 235 V. Blair, 235 V. Drake, 235 Denham v. Harris, 129, 148 Dennison v. Lee, 306 De Vatch v. Newsam, 234 Desilver's Estate, 6 Dewey v. Dupuy, 293 De Young v. Buchanan, 221 Dexter v. Manly, 207 Diller v. Roberts, 221 Diffendoffer v. Jones, 258 Dinehart v. Wilson, 91 Dinsdale v. Isles, 16 Dixon 1-. Smith, 148 TABLE OF AMERICAN CASES. xxvu Dobbins v. Brown, 211, 213 Dockham v. Parker, 91 Dod V. Sasley, 148 Doe V. Cock, 244 V. Flynn, 234 V. Lucas, 240 V. Marsh, 240 V. Murless, 240 V. Oliver, 234 V. Seaton, 234 V. Stamion, 234 V. Walters, 239 Doremus v. Howard, 91 Dorrell v. Johnson, 235 Dorrill v. Stevens, 211 Dougherty's Estate, 306 Drake v. Newton, 65 Dubois V. Kelly, 271 Dubree v. Lees, 19 Duke V. Harper, 234 Dunbar v. Jumper, 287 Durando v. Wyman, 295 E. Ege V. Ege, 148 Egermont v. Putman, 124 Ellis V. Paige, 18. 21 Emmons v. Littlefield, 79 Ewing V. Bailey, 84 Evans v. Englehart, 255 V. Hastings, 245 Ex parte, Pillow, 244 F. Fahnestock v. Faustenauer, 245 Fairbanks v. Williamson, 285 Farr v. Sumner, 49 Farley v. Thompson, 281 Farnell v. Rogers, 84 Ferguson v. Bell, 49 Fife V. Irving, 148 Fisher v. Milliken, 207, 293 Foote V. Burnett, 288 Foster v. Cookson, 148 Fortier v. Balance, 234 Fowler v. Poling, 288 Fox V. Hefifner, 64 Freeman v. Heath, 234 Franciscus v. Eeigart, 165 Freytag v. Anderson, 244 Frisby v. Thayer, 154, 168 Fry V. Jones, 91, 161 Frouty v. Wood, 221 G. Gaffield v. Hapgood, 273 Galbraith v. Black, 245 Galloway v. Ogle, 234 Garrison v. Sanford, 288 Galis V. Caldwell, 207 Geisenberger v. Corp., 244 George v. Bartoner, 64, 74 Gerfield v. AYilliams, 288 Ghegau v. Young, 293 Gilhooley v. Washington, 140 Gillett V. Stanley, 49 Given v. Bland, 142 / Gleim v. Else, 234 Goddard, v. Railroad Co., 235 V. Gould, 267 Goodtitle v. Woodward, 239 Gordon v. Correy, 129 Goswiler's Estate, 84 Goverueur v. Edward, 148 Grace v. Shively, 154 Graham v. Houston, 91 V. Moore, 234 Grant v. Gill, 140 Graves v. Da Castro, 148 Greenley v. Wilcocks, 288 Gregory v. Crabb, 234 Greider's Appeal, 64, 148, 221, 225 Greeno v. Munson, 218 Green v. Liter, 218 V. Keen, 205 Grubb V. Fox, 245 Guild V. Rogers, 161 H. Hacker v. Storer, 288 Hale V. Oldroyd, 124 Hall V. Stevens, 218 Hamilton v. Marsden, 234 V. McGuire, 79 V. Reedy, 148 XXVlll TABLE OF AMERICAN CASES. Hamilton v. "Wilson, 288 Hargrave t\ King, 116 Hancliet v. Whitney, 235 Hare v. Celey, 91 Harris v. Carson, 250, 258 Harris v. Coubborn, 291 V. Gosliu, 288 Harrison v. Barry, 148 V. Sampson, 299 Hasbrook v. Paddock, 109 Hastings v. Crunkleton, 192 Hawk V. Senseman, 218 Haywood v. Miller, 91 Hawkins, v. Pope, 221 Hazard v. Raymond, 148 Hazeu v. Culbertson, 245 Heath v. Williams, 234 V. Whidden, 285, 288 Hemphill v. Flynn, 235 Herbert v. Henrick, 218 Henly v. Branch Bank, 234 Henry v. Jones, 84 Henchett v. Kimpson, 148 Henwood v. Cheeseman, 140 Hennis v. Streeper, 148 Hesseltine v. Steever, 226 Hill V. Manchester AVater Works, 229 Hillary v. Gay, 244 Hinchman v. lies, 16 Hobbs V. Geiss, 154, 170 Hockenburg v. Snyder, 234 Hohley v. German Rep. Soc, 245 Hollingshead v. Allen, 192 Holmes v. Tremper, 267, 271, 273 Hoskius V. Knight, 148 Howell V. Ashmore, 234 Hower v. Krider, 245 Hughes V. Young, 99 Hunter v. Osterhouldt, 114 Hurst V. Rodney, 288 Huston V. Springer, 198 Hutchinson v. Potter, 235, 245 Hyatt V. Wood, 242 I. Iddings V. Nagle, 258, 262 Ingersoll v. Sergeant, 84, 134, 296 Irving V. Covode, 192 Irving V. Bull, 64, 74 Isaac V. Clark, 234 Ives V. Ives, 242 J. Jacks V. Smith, 161 Jackson v. Allen, 114 ■ V. Brownell, 91 V. Brownson, 114, 192 — V. Carpenter, 49 — V. Harder, 234 — V. Hawkes, 244 — V. Hinman, 234 — v. HoUoway, 41 — V. Kip, 115 — V. Peskid, 124 — V. Patterson, 221 — V. Rowland, 234 — V. Schietz, 114 — V. Shelden, 109 — I'. Silvernail, 114 — V. Stiles, 218, 234 — V. Stewart, 234 — V. Whitford 234 — V. Vincent, 234 Jacobs V. Graham, 84 Jenkins v. Eldridge, 72 Johnson v. Hannahan, 242 Jones V. Gundrim, 91, 161, 165, 170 V. Porter, 218 V. Reed, 109 V. Tatham, 234 i;. Whitehead, 192 K. Keath v. Widden, 288 Kelly V. Walster, 64 Kendall v. Lawrence, 49 Kenrick v. Smith, 114 Kennebec Proprietor v. Spanger, 218 V. Laberee, 218 Kenny v. Watts, 207 Kerr v. Merchants' Ex. Co., 198 V. Sharp, 179, 180 Kesler v. McConachy, 211 TABLE OF AilERICAN CASES. XXIX Kidd V. Deuuison, 192 Kimpton v. Walker, 97, 287 King V. Kerr, 288 Kingv. Murray, 234 Kluge V. Lachenour, 234 Knight V. Smith, 234 Kunckle v. Wynich, 97, 293 L. Lamitti v. Anderson, 287 Lane v. Crockett, 148 Lansing v. Pendergast, 303 Lansing v. Rattoone, 306 Lassell v. Reed, 262 Lawrence v. Kemp, 273 Lawyer v. Smith, 198 Lee V. Cook, 299 Legg V. Benion, 239 Leland v. Gassitt, 271 Lemar v. Miles, 267 Lenox v. McCall, 245 Lesley v. Randolph, 19, 235, 245 Lester v. Bartlett, 64 Lewis V. Campbell, 285 V. Cook, 288 Lewis V. Jones, 192, 262 Line v. Stephenson, 207 Lisnow V. Ritchie, 124 Livingston o. Potts, 226 V. Tanner, 26 Lockwood V. Lockwood, 221 V. Walker, 234 Logan V. Herron, 235, 245 V. Moulder, 288 Loomis V. Wilbur, 192 Long V. Fitzsimmons, 195, 198 Lorent v. So. Ca. Ins. Co. 84 Lot V. Thomas, 288 Loveriug v. Levering, 207 Lougee v. Colton, 161 Lone ;;. Edmonstone, 19 Lowry v. Mehaffy, 64 Ludlow V. New York, 114 Luusford V. Turner, 234 Lyde v. Russell, 273 Lyle V. Richards, 6 V. Williams, 84 M, McCanna v. Johnson, 235, McCormick v. Connell, 109, 125 McCrady v. Brisbane, 288, 299 McCrea v. Purmort, 79 McCuUough V. Irving's Exc, 192 McFarland v. Watson, 140 McFarson's Appeal, 64 McGee v. Fessler, 245 McGinn v. Shaeffer, 49 McGinnis v. Porter, 218 McGruder v. Peter, 46 McGunnagle v. Thornton, 140 McKinney v. Reader, 158, 179, 225, 244 McKenzie v. Lexington, 231 McKeon v. King, 245 Mclntyre v. Patton, 234 Maigs V. Anderson, 84 ' Magau V. Lambert, 195, 199, 225 Marker v. Marker, 192 Markland v. Crump, 287 Marseilles v. Kerr, 140 Martin's Appeal, 148 Martin v. Baker, 285, 287, 288 Mason v. Delaplaine, 134 Maule V. Ashmead, 64, 207 V. Wilson, 198 May V. Calder, 46 Mayberry v. Johnson, 64 Menough's Appeal, 125 Middleraore v. Goodale, 285 Middlebrook v. Corwiu, 262 Miller v. Baker, 269, 271 Miller v. McBrien, 534 Miller v. Pellettier, 64 V. Bonsadon, 234 Mitchell V. Warner, 285, 287, 288 Mills V. Auriol, 95 Mhoon V. Duggle, 16, 18 Moffat V. Smith, 141 Morehead v. Watkins, 235 Moorehouse v. Cotheal, 192 Montague v. Smith, 301 Montgomery v. Craig, 284 Morgan v. Bitzeuberger, 79 XXX TABLE OF AMERICAN CASES. Morse v. Shattuck, 79 Moskier v. Keeling, 68, 234, 235 Monsley v. Ludlum, 262 Mumford v. Brown, 195 Munson v. Wray, 68 N. Nave V. Berry, 202 Needham v. Allison, 262 Neel V. Neel, 192 Nesbit V. Nesbit, 287 Neville v. Dunbar, 240 Newell V. Gibbs, 245 Newman v. Mackin, 234 Newman v. Rutter, 109, 234 Nickle V. McFarland, 218 Nichols V. Williams, 19 Noke's Case, 207 Norman v. Wells, 287, 288, 291 North V. Barnum, 218 Norton v. Sanders, 234 O. O'Conner v. Townes, 84 O'Neal V. Lodge, 79 Overdeer v. Lewis, 19, 242 Overseers v. Overseers, 90 Owen V. Hyde, 192 Owings V. Emory, 192 Padelford v. Padelford, 192 Pancoast's Appeal, 306 Parker v. Keller, 148 Parrill v. McKinley, 64 Peirce v. Scott, 148 Pemberton v. King, 267, 271, 273 Pendleton u. Dyott,211 Penhallou v. Dwight, 255 Peters v. Grubb, 213 V. Newkirk, 129 Philips V. Ohesson, 114 V. Roberts, 234 Phillips V. Green, 49 V. Menges. 221 V. Rothwell, 234 Pierce v. Duval, 288 Pierson v. Turner, 235 Pinckney v. Hagadorn, 64 Pleasants v. Benson, 240 Plumleigha;. Cook, 285 Pollard V. Schaffer, 195, 202, 285, 288 Pond V. Curtis, 47 Poor V. Peebles, 154 Pope V. Hawkins, 234 Pott V. Lesher, 140 Preble v. Hay, 235 Preston v. Briggs, 273 Price V. Limehouse, 129 Prentice v. Kingley, 303 Price V. Pickett, 253 \ Printems v. Helfrid, 129 Proprietors v. McFarland, 19 Pritchard v. Brown, 79 Pugh V. Good, 64 Pyle V. Moulding, 84 Putnam v. Wise, 91 Q. Quain's Appeal, 207, 299 Quinn v. Wallace, 179 Quackenboss v. Clarke, 295 R. Rand v. Rand, 84 Randolph v. Carlton, 234 V. Kinney, 285 Rankin v. Tenbrook, 234 Ranku. Rank, 258 Rayer v. Ake, 95 Raymond v. White, 267 Redwine v. Brown, 288 Reed v. Thoyts, 148 V. Shipley, 234 V. Ward, 211 Reeves v. McKenzie, 161 Reynolds v. Shuler, 146 Richardson v. Dorr, 288 Rhinehart v. Olwine, 91, 161 Richie v. McCauley, 148 Riddle v. Welden, 147 Ridgway v. Crandall, 49 Right V. Cuthell, 235 TABLE OF AMERICAN CASES. XXXI Ripka V. Sergeant, 124 Eisingy. Staunard, 18 Eoberts v. Teimell, 161 Roeu V. Wiggs, 240 Rogers v. Browa, 161 Ross V. Gill, 46 Rowan v. Little, 226 Ryers v. Farwell, 234 S. Sands v. Smith, 306 Saltonstall v. White, 244 Sarles v. Sarles, 262 Schenck v. Yannut 148 Schilenger i'. McCann, 79 Scott V. Fuller, 161, 245 Seitzinger v. Steiuberger, 148 Sibley v. Colt, 306 Sinnett v. Bucher, 13 Shaffer v. Sutton, 14, 245 Shelley v. Wright, 78 Shelton v. C adman, 285 Shephard v. Spalding, 221, 273 Sherburne v. Jones, 249, 251 Shepperd v. Little, 78, 79 Singleton v. Singleton, 255 Smith V. Colson, 161 V. Eldridge, 140 V. Niver, 226, 231 V. Russell, 148 Smith V. Frinder, 41 Sraithwick i\ Ellison, 258 Smyth V. Tankersley, 91 Snyder v. Kinkleman 129 Spangler's Appeal, 306 Spear v. Fuller, 110 Sprague v. Baker, 288 Squires v. Haff, 19 St John's College v. Murcott, 148 State V. Armfield, 165 V. Elliott, 273 V. Mc Clay, 258 • V. Thackaw, 265 Steinmitz v. Ainslie, 303 Steel V. Thompson, 161, 245 Stewart v. Doughty, 91, 255 V. Roderick, 234 Stinson v. Summer, 288 Stoever v. Whitman, 109 Stockwell V. Hunter, 198 V. Marks, 273 Stone V. Matthews 147 V. Proctor, 262 Stoughton V. Leigh, 192 Stratton v. Lord, 244 Streaper v. Fisher, 288 Stroup V. McClure, 245 Stultz V. Dickey, 258 Sullivan v. Enders, 19, 23 Sumner v. Tileston, 124 V. Williams, 207 Suydam v. Jones, 288 Swan V. Wilson, 234 Swann v. Searles, 207 Tallman v. Coffin, 287, 291 Tate V. Crowson, 109 Tattle V. Bebee, 91 Taylor v. Townsend, 124, 267 V. Owen, 287 Templeman v. Biddle, 258 Terhoven v. Kerns, 306 Thayer v. Society of United Bre- thren, 234 Thomas v. Connell, 288 Thomas v. Wright, 19 Thomas v. Von Kapff, 288 Thompson v. Rose, 291 Thurgood v. Richardson, 148 Thursley v. Plant, 285 Tiley v. Moyers, 192 Torrence v. Commonwealth, 242 Townsend v. Morris, 288 Tilghman v. Little, 234 Tucker v. Newman, 124 Tufts V. Adams, 288 Turberville v. Stamp, 198 Turley v. Rogers, 234 Tyler v. Pen nock, 267 U. Union Canal Co., v. Keyser, 245 V. Young, 79 xxxu TABLE OF AMERICAN CASES. Valentine v. Jackson, 161 Vanderkarr v. Vanderkarr, 207 Van Horn v. Grain, 288 Van Dosen v. Everitt, 258 Van Ness v. Packard, 267 Van Pool V. The Commonwealth, 242 Van Eensselear v. Gallup, 296 V. Jones, 295 V. Penniman, 226 V. Plainer, 207, 299 . V. Quackenboss, 148 Vaughau v. Blanchard, 211 Vechte v. Brownell, 306 Vielie v. Osgood, 64 Viner v. Vaughan, 192 Voorhis v. Freem, 267 W, Wadsworthville School v. Meetze, 218 Walker v. Ellis, 235 V. Physick, 97 Walter v. Waterhouse, 234 Wain V. O'Conner, 262 . Walton V. File, 242 Ward V. Wandell, 244 Warner v. Hitchine, 198 Watson V. O'Hern, 68 Washburn v. Sproat, 267 Weber u. Sherman, 161 Weeks v. Hull, 84 Weidner v. Foster, 285 Wells V. Hornish, 161 . V. Mason, 234 West V. Gartledge, 140 V. Sink, 148 Wharton v. Fitzgerald, 140 Wheaton v. East, 49 Wheelock v. Thayer, 288 Whitbeck v. AVhitbeck, 79 White V. Arndt, 267 V. Whitney, 285 Whitechurch v. Holworthy, 192 Whitraarsh v. Cutting, 250 Whiting V. Brastow, 267 Whitney v. Meyers, 231 Widger v. Brownin, 240 Wiggins V. Peters, 84 Wilber v, Paine, 64 Wilcoxen v, Bowles, 154 Wilkinson v. Scott, 79 Williams v. Beeman, 288 V. Lewsey, 148 V. McAliley, 234 V. Spencer, 165 . ■ V. Witherbee, 288 V. Woodward, 295 Wilson V Clark, 64 V. Forbes, 288 Wilt V. Frankhn, 79 Windsor v. China, 84 Winter v. Cornish, 198 Witby V. Mumford, 288 Wolf V. Hauver, 79 Woglan V. Cowperthwaite, 174 Woodbridge v. Brigham, 84 Wood V. Wood, 244 Worcester v. Eaton, 49 Worley v. Worley, 148 Wyman v. Ballard, 288 V. Farrar, 124 Youngblood v. Lowry, 147 THE LA¥ OF LA}(DLORD MD TEMNT. LECTURE I. General Yiew op Tenures ... 1 Meaning of Terms, "Land- lord and Tenant," 3 Freehold Tenancies 5 Tenancy in Fee Simple 5 Statute of Quia Emptores. , 5 Tenancy in Fee Tail 6 Tenancy for Life 6 Tenancies less than Freehold 8 Origin of 8 Origin of Action of Ejectment 9 Tenancy for Years 12 Interesse Termini 13 Must be for a Time certain, .14 Tenancy at Will 15 Determination of. 16 By Implication 18 Tenancy from Year to Year. 20 Origin of. 20 Emblements 20 Notice to quit 21 Presumption of Tenancy from Payment of Rent 21 Assignment of 24 Tenancy BY Sufferance 25 Never arises by Contract. . . 26 The object of this and of tlie succeeding Lectures will be to state, as shortly and intelligibly as may be, the principal doctrines of the law of Landlord and Tenant. There are few words so constantly in lawyers' mouths as the words Landlord and Tenant ; and yet, when we come to inquire what precise relation are they intended to express — there are few questions which one feels greater practical difficulty in answering; for, on* the one hand, there is no doubt whatever that, •- ^ in point of strict law, wherever we find a subject in possession of land, tliere the relation of tenancy is in existence between him and somebody or other, since, 3 34 LANDLORD AND TENANT. according to the immutable rule of English law, no subject can have what is called allodial property, that is, land held of nobody. Some one or other must be his superior lord, and, if no other person, then the sove- reign, of whom all the landed property in the realm in the possession of subjects is thus ultimately held.^ I say ultimatel?/, because, put the case that there are fifty intermediate landlords, the last of them must himself hold of some person, and that person must be the sovereign, inasmuch as there is no one else capable of holding independently of any superior. There is great doubt among our legal antiquarians as to the precise period at which this system of tenures was adopted in England; some contending that it owes its origin to the Norman Conquest, others, that it existed in the Saxon times, and received certain modi- fications after the Conquest.^ But, be this as it may, it has now been for upwards of eight hundred years, at least, a settled and unchangeable principle of Eng- lish law, that no person except the sovereign can hold landed property without a *superior lord, and ^ ^ consequently, in the contemplation of strict law, the relation of Landlord and Tenant is as extensive as the OAvnership of landed property by subjects.^ 1 need not, however, tell you who must be all fami- liar with the use of those terms, that when we speak of Landlord and Tenant, even among lawy^ers, we use those words in a much narrower sense than that which I have just described. For instance, when we use the words Landlord and Tenant, we do not mean to express ^ Co. Litt. 1 a, b, 65 a. 2 See Co. Litt. (by Hargrave and Butler,) 64 a, note 1 ; 2 Black. Com. 48 ; and Reeve's Hist, of Eng. Law, vol. i. p. 8, where the authorities on both sides of this question are mentioned, 3 Co. Litt. 65 a; 2 Black. Com. 51. GENERAL VIEW OF TENURES. 35 the species of relation which subsists between the sovereign and a subject; for instance, the Duke of Wellington, who holds his estates of her Majesty by the service of presenting yearly a hanner in lieu of all other rents and services;* nor do we, I think, ever intend to express the sort of relation that exists between the reversioner and the particular tenants under a settlement, where no rent is reserved, or any service rendered, although a tenancy doubtless exists between them ; for instance, if I convey lands to A. in tail, keeping the reversion myself, there is no doubt- *that A. becomes my tenant, thous^h I reserve ^ not a sixpence of rent, nor ask for any covenant ^ -' on his part to perform any of the ordinary duties of a tenant, and though he might destroy my interest the next day if so minded. But though, as I have said, he is my tenant in strict law, this is not the sort of tenancy we mean when we use the. words Landlord and Tenant. It is very difficult to express in terms the precise idea which we attribute to those words; but I think that I am not far wrong in saying that, when we speak of Landlord and Tenant, we have the notion in our minds of a tenancy limited in point of duration within some bounds not so extensive as to render the landlord's interest 'practically worthless, and accompanied by some remunerating incidents to ^This is one of the few remaining instances of a holding hj petit Serjeant)/ (per pervum servitium,) which was one of the old tenures in capite. In this tenure a subject held land immediately from the crown, rendering a bow, a sword or the like. Litt. ss. 159, 160, 161. Grand serjeanty was of a similar character, but the services rendered were persoiial to the king ; as, for instance, the bearing of his sword or his lance. Litt, ss. 153 to 158. By the 12 Car. 2, c, 24, these tenures were converted, in efiFect, into ordinary socage tenures. 36 LANDLORD AND TENANT. the reversion, such as a rent, or at all events a fine in lieu of one, and also by certain obligations, such as covenants, or, where the tenancy is evidenced by some instrument not under seal, agreements, for the performance of the duties usually required from per- sons taking the description of property demised ; and as these are the sort of tenancies which give rise to the great mass of practical questions involved in the law of Landlord and Tenant, it is to these that I intend almost exclusively to direct my remarks. Still (as it is always useful and satisfactor)^ to take a ^dew of the entire subject, although you may intend to investigate certain parts only,) it will be right, I think, before entering upon details, *to enume- ■- -^ rate the different sorts of tenancy^ strictly so called, knoAvii to the law of England, and to point out very briefly their peculiarities. The first and highest tenancy kno"\vn to the law is, as you are all aware, tenancy in fee-simple!' Such a tenant has the entire uncontrolled disposition of the property. He must, however, as I have already stated, hold of some person, otherwise he would not be a tenant at all, and that person, if the estate was created at any time subsequently to the year 1290, must be the sovereign, for, in that year, an Act of Parliament was passed, which from the Latin words used at its commencement, we call the Statute of Qxda Emptores [18 Ed. 1, c. 1.], which prohibits any subject from conve)dng lands to be held of himself in fee-simple, and directs that, for the future, when lands are conveyed in fee-simple, the grantee of them shall not become the tenant of the grantor, but shall be the tenant of the person of whom the ^ Litt. s. 1 ; Watkins on Convey, bk. 1, c. ix. TENANCY IN FEE SIMPLE. 37 grantor held. And, this is not a matter altogether unimportant, because, if the tenant of lands in fee- simple were to die without heirs and without a will, the lands would escheat to the person of whom they were immediately held.^ And in this way *property does, even at the present day, occasionally ^ escheat to the sovereign, of whom by far the •- -' greater part of the lands in the kingdom are now holden, although there are still some estates in fee- simple created previously to the year 1290, which were then held and still continue to be held of subjects. '(a) ^ See Co. Litt. 13 a; Com. Dig. Escheat. Property held upon trust or mortgage does not escheat by the attainder or conviction of the trustee or mortgagee. 13 & 14 Vie c. 60, s. 46. This act provides also for the case of the death of the trustees or mortgagees intestate and without heirs. See ss. 15 and 19 ; and Sugden's Essay on the Real Property Statutes, c. viii. ^ Any examination of the incidents of tenancies in fee-simple would be out of place here. The subject is shortly and clearly dealt with in Watkins on Convey, bk. 1, c. ix. (a\ In America the existence of tenure is expressly negatived in several States, viz. : New York, South Carolina and Michigan, and in most, if not all the others, the ownership of land is as absolute and direct, as is compatible with the existence of society where the right of eminent demesne is recognized ; yet it would not be safe to assert that any property is allodial. By the Charter of Pennsylvania, the Proprietary held his estate of the crown, in free and common socage. (3 § of Charter.) By the 17th and 18th Sections, William Penn was authorized to alien any portion of the said lands to be held of the said William Penn, his heirs or assigns, and not immediately of the king, notwithstanding the Statute quia emptores, and the divesting Act 27 November, 1779, 1 Smith's Laws, 479, &c., did but sub- stitute the Commonwealth of Pennsylvania for the Proprietaries. It is believed that all the States in which the common law forms the basis of their constitutions, have some remnant of the doctrine of 38 LANDLORD AND TENANT. The next species of tenancy is that in tail. The nature of which I take it for granted that you are tenure, witbout wbicli it would be impossible to account for many of tbeir well established powers. « It is true," says Judge Jones, in his syllabus of the Law of Land Office Titles in Pennsylvania, " the fee passes free and clear of all restrictions and reservations as to mines, royalties, quit-rents, or otherwise, excepting the fifth part of all gold and silver ore for the use of the Commonwealth, yet, fealty remains as an inseparable incident to the estate granted, and that is a service, and escheat remains, which is a perquisite and fruit of tenure ; and finally, the rules of the common law regulating the descent of real estate remain, except so far as altered by Acts of Assembly, and these are of feudal origin, and proceed upon the fiction or principle of tenure." Since the above was written, Judge Sharswood's Lecture before the Law Academy of Philadelphia, at the opening of the Session of 1855-6, has been published. The reader will there find this subject thoroughly discussed, and the same conclusion arrived at. Judge Sharswood adds to the evidence of tenure enumerated above, (' The forms and language of our conveyances," and says, "By the Act of 28 May, 1715, all deeds and conveyances proved or acknowledged, and recorded, are to have the same force and effect here for the giving possession and seisin, and making good the title and assurance, as deeds of feoff'ment with livery and seisin, &c. It is obvious that prior to the Act of Frauds and Perjuries of 21 March, 1772, a parol feoff'ment with livery was a valid conveyance of lands ; and in the first case which arose upon the construction of the Act of 1715, C. J. M'Kean said : < The legislature has at various periods, and on a variety of subjects, departed from feudal ceremonies and principles in relation to the transfer and descent of property, but in the present instance, the Act of Assembly meant only to give to a grant of lands, a greater effect upon the estate on recording the deed, than could previously have been enjoyed without livery of seisin.' M'Kee's Lessee v. Pfout, 3 Dall. 486. « The object,' says C. J. Gib- son, 'was to give without the aid of feudal ceremonies, the legal seisin for lawful purposes.' Desilver's Estate, 5 Eawle, 113. In both these cases it was held, that the act did not mean to give a common deed without livery, the tortious effect of a feoffment with TENANCY FOR LIFE. 39 well acquainted with,^ and also with the modes in which they may be barred and turned into a fee-simple.^(a) While it continues an estate tail, however, it is held of the person by whom it was originally created or his representative. Next come the various species of estates for life^ whether for the life of the tenant, or pur auter vie^^ whether for one life or for several, whether created by act of the party, as the estates for life limited in a settlement, or by act of the law, as in the case of dovoer^^ and tenancy hy the curtesy}^ All these ^ See Litt. ss. 13 to 31 ; Watkins on Convey, bk. 1, c. viii. At common law, before the statute of Westminster the 2nd (13 Edw. 1, St. 1, c. 1,) the tenant in tail was owner of a conditional fee. Lit. s. 13. 9 See the 3 & 4 Wm. 4, c. 74 (passed August 28th, 1833); and Sugden's Essay on the Real Property Statutes, c. ii. "Litt. ss. 56, 57; Watkins on Convey, bk. 1, c. iv. and v. "Litt. ss. 36 to 55; 3 & 4 Wm. 4, c. 105; Watkins on Convey, bk. 1, c. vi. ; Sugden's Essay on the Real Property Statutes, c. iii. And as to the assignment of dower, see Doe d. Riddell v. Gwinnell, 1 Q B. 682. 41 E. C. L. R. 728. ^2 Litt. s. 35; Watkins on Convey, bk. 1, c. vii. livery. In speaking on that subject in Lyle v. Richards, 9 S. & R. 334, C. J. Tilghman says : < What would be the effect of a feoffment with livery is another question, and I give no opinion on it. It is a kind of conveyance out of use ; indeed I have never heard of one in Pennsylvania.' I have, however, seen an early deed for a lot in Philadelphia, with an endorsement of livery of seisin, and in another chain of title, met with a Letter of Attorney to make livery. It is worthy of remark, as observed by C. J. Tilghman, that in the case of M'Kee v. Pfout, mentioned before, where the counsel for the plaintiff argued against the forfeiture, it was taken for granted by them, that a feoffment with livery would have occasioned a forfeiture, nor did any intimation to the contrary fall from the Court. And Lyle v. (a) See Kent's Com., Vol. 4, p. 14, and in notes. In Penna. Act, 27 April, 1855. Pam. Laws, p. 368. 40 LANDLORD AND TENANT. hold of the immediate reversioner, as *does that r 71 • • • '- -■ other description of tenant for life, denominated tenant in tail after possibility of issue extinct^^ who differs from the rest in this particular, that ha\ing once had an estate of inheritance he is permitted to cut timber and do other acts which would amount to ivaste in an ordinary tenant for life, and might, as such, be prevented or punished by the reversion. Now these are the descriptions of freehold tenancy known to the law, of which, after the present lecture, it is not my intention to say anything — since, having only a limited portion of time to dispose of, I think it best to devote it entirely to the consideration of those tenancies which are of the most frequent practical occurrence, and, these being, out of all question, tenancies not of a freehold character, our attention will, in the succeeding lectures, be devoted to such and to such only. There are indeed some parts of England in which tenancies for lives are extremely common,^'^ more common indeed than those of a chattel nature, and are accompanied by the ordinary incidents of a tenancy for years, I mean a remunerating rent to the landlord, or a fine in lieu of one, and covenants for the performance of certain duties usually imposed on tenants for a limited period. But, though these freehold tenancies do, in these matters, very much resemble those *of which it [81 ... •- -^ is my intention to speak, yet, I think it unne- 13 See Litt. ss. 32 to 34; Co. Litt. 27 b. I'* These tenancies are also very common iu Ireland. Furlong's Landl. and Ten. bk. 2, c. iv. Richards, in which it was held that a common recovery suffered by- tenant for life, was an effectual bar of contingent remainders depend- ent thereon, could only rest on the extension of the feudal principles of alienation and tenure to this State." TENANCIES LESS THAN FREEHOLD. 41 cessary to devote any separate consideration to them, because the payment of the rent and the construction of the covenants incident to them are regulated by almost precisely the same rules as those which regulate the same points in the case of a tenancy for years, and it will much simplify our course and prevent useless repetition, if we consider these once, and once only. I shall, therefore proceed at once to the considera- tion of those tenancies which are of a quality inferior to freehold, and these are, 1st. Tenancies ^/br 2/ear5. 2ndly. Tenancies at will. 3rdly. Tenancies hy sufferance. The history of tenancies for years is curious. In the very early ages, while the feudal system retained its original vigor, estates of a less quality than freehold were unknown. There was then no such thing as an estate for years ; the owner of the soil did indeed sometimes covenant with a x^articular person that he shoidd enjoy the right of dwelling on and cultivating a portion of land for a certain definite period, but this did not constitute the person who occupied it a tenant at all. It was considered as a mere agreement between him and the freeholder, conferring no estate, and creating no tenure. If the freeholder turned him out on the following day, he had no remedy by which he could recover the possession. He might, indeed, maintain an action for the breach of the agreement *to „ r 91 allow him to occupy, but he was unable to re- '- -" cover the land, since the law did not recognize him as possessing any estate in it.^^ The first step towards establishing him on his ^* See Bac. Ab. Leases. 42 LANDLORD AND TENANT. present footing was the invention of a particular form of the idtU of covenant^^ in which he was made to demand his term^ as well as damages for the injury done him in ousting him; but as this was only a form of the action of covenant, and as he could only maintain that action against the person who had covenanted with him, (for it was not till long after- wards that covenants were held to bind the assignee of the lessor), if it so happened that his lessor had aliened the estate, or had created a particidar estate of freehold in it, he had no means of wresting the possession from the alienee or grantee of such particular estate, and consequently was left altogether to his action for damages. Thus matters stood until the reign of Henry III., at which period Bracton^ from whom we derive our knowledge of the progress of the law relative to this matter, informs us that it was determined to provide a full remedy for the grantee in such cases ; and, for this piu'pose, a ^vrit was invented entitled a "wait of Quare ejecit infra terminum* This lay •- -• against the person actually in possession of the land, and called upon him to show cause why he had ousted the termor within his term, which, if he coidd not do, the termor had judgment to recover it, and might still bring an action of covenant against his lessor." But this writ being levelled at the mischief done to tenants by means of ahenations by their own ^^As to the early history of the action of ejectment, see Bracton, bk. 4, foL 220. cap. 36; Hale's Hist, of the Common Law, c. 8, p. 201 (6th Edit.) ; Bac. Ab. Leases; Reeve's Hist, of English Law, vol. i. p. 341, vol. iii. p. 29, 390, vol. iv. p. 165 ; Adams on Eject. c. 1; Stephen on Plead. 12, 13. 17 See Bracton, bk. 4, fol. 220, cap. 36. TENANCIES LESS THAN FREEHOLD. 43 lessors, was not so framed as to embrace the case of a tenant for years ousted, not by his own lessor, or any person claiming under him, but by the tortious act of a mere stranger. In such cases, the tenant had no remedy but to apply to his lessor to bring a real action to recover back the seisin of the free- hold from the trespasser, and then, the lessor having obtained the seisin, the tenant's right to have his term again attached, and in this circuitous manner it became revested in him. But, in the reign of Edward III. a remedy was created for him in these cases also, by the invention of the writ of the Ejectione firmce^ the very writ by which actions of ejectment are now commenced.^^ This writ, tl>e first instance of which occurs in the 44th year of King Edward III., did not, however, originally* p*-,-,-, enable the termor to recover the term, but '- -• only damages against the trespasser. To recover the term itself he was obliged to resort to a Court of Equity Avhich, about this time, as Chief Baron Gilbert informs us at page 2 of his Treatise, began to interfere for his protection. At last the Courts of law, however, gave him a complete remedy, not by the invention of any new writ, but by altering the judgment upon the old writ of ejectment, and ^8 When this Lecture was written, and before the Common Law Procedure Act, 1852 (15 & 16 Vic. c. 76,) the action of ejectment was supposed to be commenced by the original writ which is men- tioned above, although, in fact, no writ was sued out, but the proceedings were begun by the declaration. It is now commenced by a writ in the form given by that act, which is issued like an ordinary writ of summons. See ss. 168, 169, and sched. A, No. 13. (a) (a) In most of the United States the action of ejectment is com- menced by summons; the Pennsylvania act making the change was passed in 1806. 44 LANDLORD AND TENANT. giving judgment that he should recover his term as well as damages. This was a singular stretch of power on the part of the Courts, and one on which probably no Court would venture at the present day. And what is most singular about it is, that we do not know even the precise period at which it took place, though it is ascertained to have been some time between 1455 and 1458 ; since, in the former year there is a reported assertion by one of the Judges, that damages only are recoverable in ejectment ;^^ and, in the latter year, a reported assertion at the Bar, that the term likewise is re- coverable.^° Thus were tenants for years at last placed on the same level as freeholders, with regard to the security of their estates, and the facility of their remedy when dispossessed. Indeed, with re- gard to the remedy, they had arrived at a better position than the freeholder, for we all know that ^,^ *the real actions, which were formerly the "- -■ remedies made use of by the freeholder, became almost entirely disused, and that of eject- ment, which had been invented for the sole use of the owner of the chattel interest, substituted in their place. Such, then, being the origin of chattel interests in land, let us consider the three classes into wliich they are distributed ; namely, 1st. Estates for years ; 2ndly. " at loill; and 3rdly. " hij sufferance. Per Chocke, J., Mich. T., 33 Hen. 6, fol. 42. 2° See Brooke Ab. Part 2, Quare ejecit, fol. 167. The first entry of a judgment of recovery of the term is of the date of 1499. See Kast. Entr. 253 a; and the authorities collected in the note to Doe d. Poole V. Errington, 1 A. & E. 756. (28 E. C. L. R., p. 197.) TENANCY FOR TEARS. 45 An estate for years is thus described by Littleton, at sec. 58 of his Tenures. " Tenant for term of years is where a man letteth lands or tenements to another for term of certain years, after the numher of years that is accorded hetween the lessor and the lessee^ and the lessee enter etli hy force of the lease, then is he tenant for years." This definition of Littleton's, like every other given by that most accurate of legal writers, contains everything material to ascertain the nature of the estate. It is said to be, "^y/^ere a man letteth to another,^'' for there must be a lessor and lessee. It must be "^br term of certain years," for if the term is left uncertain, the estate would be at will, not an estate for years. And, " when the lessee entereth hy force of the lease, then is he tenant for years," for (except in the case of a lease made under the Statute of Uses, in which case the pos- session is transferred to the lessee by that statute), until he has entered *by virtue of the lease, [131 he has not an estate, but only what lawyers "- -• call an interesse termini^^{a) which would not be suffi- 2^ Where a lease is to commence at once, but the lessee has not entered, or where it is not to commence until a future period, the lessee has only a right of entry, or interest in the term. This interest is merely executory, and the tenant is not possessed of the term until entry. Com. Dig. Estates hy grant (Gr. 14); 1 Wms. Saund. 250 f (1). A lessee who has only an interesse termini may grant away his interest to another ; but as he has no estate, a release to him by the lessor (which does not operate under the Statute of (a) In legal contemplation the right to the possession, is in the lessor as against a third person, until the contract is consummated by the entry of the lessee. When entry is made, such a right of possession is transmuted from the lessor to the lessee, as will enable the latter to maintain ejectment. Sennett v. Bucher, 3 Penna. 394. See 4th Kent's Com. 97. 46 LANDLORD AX D TENANT. cient to enable him to maintain trespass^^ against ^ a stranger trespassing *upon the land; but, '- -^ when he has once entered, he becomes pos- Uses) will not enlarge his interest ; see Co. Litt. 46 b, 270 a ; and the judgment, in Doe d. Eawlings v. Walker, 5 B. & C. 118 ; (11 E. C. L. E.. 171) ; although it will extinguish the rent as completely as an express release of it would, Co. Litt. 270 b. An assignment by the lessee to the lessor will extinguish the inieresse termini, Salmon V. Swann, Cro. Jac. 619 ; and the same consequence follows, it seems, from a release by the lessee to the lessor. Watkins on Convey. 36, note, 9th edit. A mere interesse termini will not merge in the subsequently acquired freehold, because merger is the union of two estates. Doe d. Rawlings v. Walker, nhi S7tp. The lessee may enter notwithstanding the death of the lessor; and if the lessee dies before entry, his personal representative may enter. Co. Litt. 16 b. Use and occupation will not lie unless there has been an actual entry by the lessee, or by one of several lessees on behalf of the others. Edge v. Strafford, 1 Cr. & J. 391; Lowe v. Ross, 5 Exch. 553;* Glen v. Dungey, 4 Exch. 61.* In Keyse v. Powell, 2 E & B. 132, (75 E. C. L. R. 132), a curious question arose. A copyhold close, containing an unopened coal-mine, had been let to a tenant from year to year: the surface was occupied by him, and it did not appear that there had been, in the demise, any exception or reservation of the mine. Whilst this tenancy continued, the copy- holder in fee granted the mine to the tenant and to another person. It was held that the tenant was, before the grant of the mine, in possession of it by virtue of his tenancy from year to year, although without the right to work it; and consequently, that by the grant he and the other grantee, for whose benefit his possession enured, became possessed of the mine for the term granted, without any actual entry, and had not a bare interesse termini in it 22 Even where a lease operates under the Statute of Uses (27 Hen. 8, c 10,) the lessee cannot maintain trespass before entry, although the statute executes the use. Viner Ab. Trespass (S ) pi. 13, 14; Geary v. Bearcroft, Carter, 66; Com. Dig. Trespass (B. 3.) Nor can a lessee under a lease opemtiug at common law maintain trespass before entry, for actual possession is necessary in order to support this action in respect of real property. TENANCIES LESS THAN FREEHOLD. 47 sessed for his term, which although designated by lawyers in every case a term of years, may be for less than a year, as for a half-year, quarter, or a month, or merely a few days ; for to use the words of Sir William Blackstone, " If the lease he hut for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings, a year heijig the shortest term which the laio in this case takes notice of"^^Xa) But, be it for a short, or be it for a long term, it is a requisite of this sort of estate that it be for a time * certain; for if A. grant to B. for r*! c-i as many years as he shall live, this, being uncer- tain, is no term of years ; (Co. Litt. 45 b ;) and, if it want the formalities requisite to pass a freehold interest, it passes no estate at all; but if A. lease to B. for ninety- nine years, or for nine hundred and ninety-nine years, See Com. Dig Trespass (B. 2,) (B. 3,); Bac. Ab. Leases (M.) ; Revett V. Brown, 5 Bing. 7, (15 E. C. L. R, 444); and the judg- ment in Wheeler v. Montefiore, 2 Q. B. 142, (42 E. C. L. R. 605). It is otherwise with respect to goods the owner of which may bring trespass or trover, although his possession of them was only con- structive at the time of the injury complained of: for the property in goods draws after it the possession. 2 Wms. Saund. 47 a; Turner V. Ford, 15 M. & W. 212.* The personal occtipotion of land is not, however, necessary in order to maintain trespass in respect of it ; it is sufficient if the plaintiff is in actual possession by his servant, or agent. Bertie v. Beaumont, 16 East, 33 : Reg. v. Wall, Lynn, 8 A. & E. 379, (35 E. C. L. R. 409). Where the interest of a tenant of land is determined by the death of a tenant for life under whom he holds, the possession ceases with the interest, and he cannot maintain trespass unless there is afterwards some actual occupation by him, or he does some act indicating an intention to retain the possession. Brown v. Notley, 3 Exch. 219.* 2^ See 2 Black. Comm. 140 ; Litt. s. 67, and Bac. Ab. Leases (L. 3.) (a) Shaffer v. Sutton, 5 Binn. 228. 48 LANDLORD AND TENANT. if he shall so long live, this is an estate for term of years ; for it is certain that it cannot last beyond the number of years mentioned ; and though it may deter- mine sooner if A. die, as he probably will, before they have expired, still that does not render the estate un- certain, but only renders it defeasible by a condition subsequent.^ A tenancy at will takes place where the demise is for no certain /en??, but to continue dui'ing the joint loill r*-i ^-i of both parties, and no longer.^^ It is the *dis- tinguishing incident of this sort of tenancy, that the landlord may put an end to it when he thinks proper; and that, not merely by expressly signifying to 24 See Co. Litt. 45 b. It is essential to the very existence of a term of years that there should be a time prefixed beyond which it cannot continue. The time must be prefixed ; it is not sufficient that a period must come beyond which the lease cannot last. In the instance put in the text, of a grant to B. for so many years as he shall live, the lease must determine on B's death, and his death must happen sooner or later. Yet this is not a term of years, for, as is said by Lord Coke, " licet nihil certius sit morte, nihil tamen incertius est Jiord mortis." Co. Litt. 45 b. As to the distinction between conditions subsequent and conditions precedent, see Bac. Ab. Condi- tion (I); Brook v. Spong, 15 M. & W. 153 ;* Egerton v. The Earl of Brownlow, 4 H. of Lords C. 1 ; and post Lecture IV. 2^ The defiuition of a tenancy at will, given by Littleton, is as follows : — " Tenant at will is where lands or tenements are let by one man to another to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will because he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him." s. 68. To this definition Lord Coke adds : " It is regularly true that every lease at will must in law be at the will of both parties, and, therefore, when the lease is made to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also." Co. Litt. 55 a. (a) la) And vice versa. See Mhoon v. Drizzle, 3 Dev. 414. TENANCY AT WILL. 49 the tenant his intention so to do, but by performing any act inconsistent with the duration of the tenant's interest; thus, for instance, in Doe d. Bennett v. Turner, 7 M, & W. 226,^^ 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 the tenancy. See also Doe d. Price v. Price, 9 Bing. 356.^ So, on the other hand, the tenant *may, ^^. «, on his part, put an end to the holding when he 2^ This case went down to a new trial, at which the jury was directed in accordance with the judgment of the Court of Exchequer in the earlier stage of the case. To this direction a bill of exceptions was tendered. The Court of Exchequer Chamber held, however, that the ruling was correct. See Turner v. Doe d. Bennett, 9 M. & W. 643.* 27 The. making of a lease by the lessor at will to commence on a future day determines the will as soon as the lease commences in point of interest. Dinsdale v. lies, Raym. 224 ; Hinchman v. lies, 1 Ventr. 247. It is not determined by a lawful act done upon the land by the lessor, as if he cuts down trees which are excepted out of the lease. Co. Litt. 55 b; see also Com. Dig. Estates hy grant, (H. t), H. 7, H. 8.) A covenant by the lessor to make a feoffment does not amount to a determination of the will until the feoffment is actually made, 1 Roll. Ab. 860, 1. 36 ; but a feoffment by the lessor with livery of seisin made upon the land determines the tenancy, although the tenant at will be off the laud at the time, and have no notice of the determination of the will. Ball v. Cullimore, 2 Cr. M. & R. 120.* The lessor may, as is obvious, determine the tenancy by a demand of possession, or by a notice of its determination com- municated to the tenant; and the notice need not be given, or the demand made, upon the land. Co. Litt. 55 bj Goodtitle v. Herbert, 4 T. R. 680; Doe d. Jones v. Jones, 10 B. & C. 718. (21 E. C. L. R. 303.) Even where the owner of the freehold only stated to the tenant at will that unless he paid what he owed measures would be taken without delay to recover the possession of the property, the tenancy was held to be sufficiently determined; the implied offer to retain the possession not appearing to have been accepted. Doe d. 4 50 LANDLORD AND TENANT. thinks proper, and this he may do, as we are infoi-med by Lord Coke, (1 Inst. 55 b, 57 a), by committing any act inconsistent with the nature of his estate ; for in- stance, by assigning the land to another, for a tenancy at will is not assignable.^^ And if an attempt be made to assign it, the assignee, if he enters on the land, be- comes a trespasser. So he may put an end to his tenancy by an express declaration that he will hold no longer ; but in order to render this declaration operative he must go out of possession.-^(«) r*im *There is another remarkable difference be- tween a tenancy at will and one for years; a Price V. Price, 9 Bing. 356. Where the lessor becomes insolvent, and his reversion is consequently transferred to his assignees by the operation of fhe Insolvent Act, the vesting order, with knowledge thereof by the tenant, is a determination of the tenancy at will. Doe d. Daviea v. Thomas, G Exch. 85i j* see also Pinhorn v. Souster, 8 Exch 7G3;* and the notes to Clayton v. Blake, 2 Smith's L. C. n.{h) ^^ But an assignment by the tenant at will does not put an end to the tenancy unless the lessor at will have notice of it. Carpenter v. Colins, Yelv. 73 ; Pinhorn v. Souster, 8 Exch. 763.* ^^Co. Litt. 55 b, note (15). A tenant at will may create a tenancy at will available as against himself. See the observation of Mr. Justice Patteson, in Doe d. Groody v Carter, 9 Q. B. 865, (58 E. C. L. R. 862). It appears from the same case, that if a tenant at will lets the premises to a third person at will, and afterwards takes a conveyance of the property, the tenancy at will created by him will not be affected. A tenant at will cannot, strictly speaking, commit waste ) but if he does any act which, if committed by a tenant for years, would amount to voluntary waste, the tenancy is determined. Litt s. 71; Co, Litt. 57, a; pod, Lect. VII. (o) The tenant at will becomes a trespasser by unreasonable delay in moving after the estate is determined. Ellis v. Paige, 1 Pick. 47; Rising V. Stanuard, 17 Mass. 282. (b) Mhoon V. Drizzle, 3 Dev. 414. TENANCY AT WILL. 51 tenancy for term of years is always created by express contract between the parties, for it must be, as I have said, for a term certain^ and that term cannot be fixed save by express contract. But an estate at will may, and frequently does, arise by implication ; for instance, in the ordinary case where A. agrees to convey land to B., and B. enters upon it before any conveyance is exe- cuted, in this case B. is not a trespasser, for he has the permission of the owner ; he has no freehold, for, though in equity the land is vested in him, yet, at law^ there has been no conveyance capable of transferring the seisin to him ; he is not tenant for years, for he does not hold for a tenn certain ;^° he is therefore tenant at will. See Doe v. Chamberlain, 5 M. Sy W. 14;* Howard v. Shaw, 8 M. & W. 119.'^* In fact, whenever you find a person in possession of land, in which he has no freehold estate nor tenancy for any cer- tain term, and which he nevertheless holds *by r^iq-. the consent of the true owner, that person is tenant at will; for instance, in Doe v. Jones, 10 B. & C. 718, where the tmstees of a dissenting congregation had put a minister into possession of a dwelling-house 30 Ante, p. 15. 21 The mere occxipation, however, of the land by the purchaser under circumstances such as those mentioned in the text, is not sufficient to enable the vendor to sue him for use and occupation. There must be a contract, express or implied, to pay for the occupa- tion. See Tew v. Jones, 13 M. & W. 12,* in which case the vendor was in possession at the time of and after the conveyance, and the action was brought by the vendee. In Winterbottom v. Ingham, 7 Q. B. 611, (53 E. C. L. R. 611,) the vendee of an estate was let into the possession of the premises whilst the title was under investi- gation, and the contract of sale was afterwards determined. It was held that the vendor could not, upon these grounds alone, recover for use and occupation, although the jury found that the occupation had been beneficial. See alsopo.s<, Lect. V. 52 LANDLORD AND TENANT. and chapel, it was held by the Queen's Bench that at laAv he was their tenant at will, and that they could put an end to his interest by simply demanding posses- sion.^-^(a) Such being the general nature of a tenancy at ivilJ., namely, that it exists during the joint will of both parties, any act by either of whom inconsistent with its 32 And see Doe d. Nicholl v. M'Kaeg, 10 B. & C. 721, (21 E. C. L. R. 304,) ; Burton app. v. Brooks resp., 11 C. B. 41, (73 E. C. L. R. 40,). (a) Tenancies at will are not favored by the, courts. In Timmins V. Rowlison, 3 Burr. 1609, Mr. J. Wilmot said, " In the country, leases at will, being found extremely inconvenient, exist only notion- ally." And it is now the general language of the books, that a tenancy at will cannot arise without some express grant or contract, and that all general tenancies are constructively tenancies from year to year. Preston on Abst. of Title, p. 25, 4 Kent. 112; Comyn on Land; and Ten. 8 ; Lesley v. Randolph, 4 Rawle, 123; Thomas v. Wright, 9 S. & R. 87 ; Squires v. HuiF, 3 A. J. Marshall, 17 ; Sullivan v. Endors, 3 Dana. 66; Du Bree v. Lees, 2 Bl. Rep. 1173; Richardson v. Langridge, 4 Taunt. 131. One who is rightfully in possession of land, but with no intention of becoming a tenant in the ordinary acceptation of the term, is a tenant at will, one for instance who comes into possession under a contract with the owner for the purchase. Proprietors of No. 6 v. McFarland, 12 Mass. 325; Love v. Edmonstone, 1 Iredell, 152. And a grantor continuing in possession of the granted premises after a conveyance. Carrier v. Earle, 1 Shep 216. So a judgment debtor whose lands have been sold on execution holding over after the sale, by the consent of the purchaser, to whom he pays rent, has in New York been held a tenant at will. Nichols v. Williams, 8 Cow. 13, So after a lease has expired by its own limitation, and the tenant holds over, he is said in Overdeer v. Lewis, 1 Watts & Ser. 90, to be tenant at will. He would be more properly described as a tenant by sufferance. TENANCY FROM YEAR TO YEAR. Od nature will determine it, it follows that it is not assign- able, since the very attempt to assign would operate as a determination of the will of the party assigning to remain any longer tenant, and that it may be created either by express terms or by implication,^^ One very important incident belonging to it remains to be noticed, I mean its capability of being extended by certain circumstances into a tenancy of a much more permanent description, namely, a tenancy from, year to year?^ *The history of tenancies from year to year, r^on-i now an exceedingly important class of chattel interests, is as follows. At a very early period of our law, a tenancy strictly at will was found to be an ex- ceedingly inconvenient one ; it left each party too much 33 Ante^ p. 17. 34 By the 3 & 4 Win. 4, c. 27, s. 7, it is enacted, << Tbat when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or bring an action to recover such land or rent, shall be deemed to have first accrued either at the determina- tion of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined ; provided always that no mortgagor or cestui que (rust shall be deemed to be a tenant at will within the meaning of this clause to his mortgagee or trustee." See as to the construction of this section. Doe d. Bennett v. Turner, 7 M. & W. 226,* 9 M. & W. 643 ;* Doe d. Stanway v. Bock, 4 M. & Gr. 30, (43 E. C. L. B. 25,) ; Doe d. Evans v. Page, 5 Q. B. 767, (48 E. C. L. B. 765,) ; Doe d. Angell v. Angell, 9 Q. B. 328, (58 E. C. L. R. 328,); Doe d. Dayman v. Moore, ib. 555, (58 E. C. L. B. 554,) ; Doe d. Goody v . Carter, ib. 863, (58 E. C. L. B. 862,) ; Doe d. Birmingham Canal Co. v. Bold, 11 Q. B. 127, (63 E. C. L. B. 127,); Randall v. Stevens, 2 E. & B. 611, (75 E. C. L. B. 641,) ; the notes to Nepean v. Doe, 2 Smith's L. C. 406; and pos^, Lect. VIII., where these cases are referred to more fully. 54 LANDLOEDAND TENANT. at the mercy of the other. It is true that there was a doctrine in the law called that of Emhlements^^ under which the tenant at will was entitled to ingress and regress, for the purpose of reaping and carrying his crop, if the landlord determined the tenancy after seed- time and before harvest. But this, though it prcAented one extreme case of injustice, by no means obviated the r*.9-| -| *entirety of the inconveniences residting from this sort of tenancy. The judges of the Courts of law, perceiving this, seized upon every opportunity within their power to prevent a strict tenancy at will from arising; and in order to do so, they laid hold upon any circumstances in the case which could be construed as indicative of an intention of the parties that the tenancy should not be one purely at will, but should continue till a reasonable notice from either the landlord or the tenant that it was his election to deter- mine it. Not that the tenancy became, even so, one for a term of years ; for, as it was entirely optional, entirely at the will of each party, whether and when he would give notice, the tenancy continued for some time to be and to be called a tenancy at will ; differing from other tenancies at will in this respect, that reasonable notice of the determination of the will was requisite to put an ^^ The right to emhlemenfs, or the right to take, after the end of the tenancy, crops sown before its determination is not confined to tenancies at will, but exists also in the case of other tenures of an uncertain character. Emblements are allowed in order to encourage the cultivation of the land, and because, where the tenancy is not determined by any act of the tenant, it would be obviously unjust to deprive him of the benefit of a crop which he sowed at a time when he might reasonably expect to reap it. Co. Litt. 55 b; 2 Black. Comm. 146. The old law with respect to emblements has been altered by statute where the tenancy is determined by the death of a landlord who is entitled for his life, or for any other uncertain inte- rest. See the 14 & 15 Vie. c. 25 ; and post, Lect. IX. TENANCY FROM YEAR TO YEAR. 55 end to it.(a) What was a reasonable time for this purpose was at first not quite ascertained ; it is, how- ever, now well settled that in all cases of yearly tenan- cies, it is Jialf a years notice expiring at that period of the year at tohich the tenancy commenced. DoetZ. Martin V. Watts, 7 T. R 85 ; Doe d. Shore v. Porter, 3 T. R jg 36 Yhe circumstance from which the presumption usually was derived that the parties intended to create a yearly tenancy, rather than one strictly at will, was the payment of a yearly rent ; and accordingly it is now settled, that if a party enter into or remain in pos- session *under circumstances which would con- r^oQ-i stitute him a tenant at will, the payment of a yearly rent or settlement of it in account with his land- lord, renders him tenant from year to year, and entitles him to half a year's notice to quit. Thus, in Doe d. Martin v. Watts, 7 T, R. 85, where the tenant entered under a lease which purported to be made in pursu- ance of a power, but which was not warranted by the power and therefore did not bind, it was held that the reversioner, having received rent, had constituted him his tenant from year to year.^^ And even the admis- 3^ See as to notices to quit, post, Lect. VIIL 37 See Doe d. Tucker v. Morse, 1 B. & Ad. 365, (20 E. C. L. K. 519. In this case the defendant had entered into possession of the premises in question under a lease from a tenant for life of the property, and the plaintiff was the remainder-man who had succeeded the tenant for life. The lease had been made under a power, but its validity was doubtful. The rent was to be paid partly in money, partly in culm, which was to be carried by the tenant to the land- lord's house. After the death of the tenant for life, and after the plaintiff had come into possession, he sent one of his servants to get (a) This is the tenancy held to be established in Massachusetts by all parol leases, whether for a certain or uncertain time, and whether an annual rent be reserved, or not ; Ellis v. Paige, 1 Pick. 43. 56 LANDLORD AND TENANT. r*oq-i sion that an account charging the tenant with half a year's rent was correct, has been held to warrant the imphcation of a tenancy from year to year. Cox V. Bent, 5 Bing. 185 ; (15 E. C. L. R 533.)'' carts to bring home the culm. The servant went to the defendant, and also to other tenants. On this occasion, and also at a con- siderably later time, culm was carried by the defendant to the plain- tiff's house, and there received. The jury found that the culm was carried by and received from the defendant in the way of rent under the reservation. The Court held that this finding was warranted by the evidence, and that, assuming that the lease was void, the receipt of the culm under these circumstances was a recognition of the defendant as tenant from year to year. See also Berrey v. Lindley, 3 M. & Gr. 498, (42 E. C. L. R. 263,). In that case a person had entered upon premises under an agreement for a term of five years and a half. The agreement was invalid under the Statute of Frauds ; but rent having been paid it was held that a yearly tenancy had arisen. In Lee v. Smith, 9 Exch. 662,* a tenant entered into the possession of premises under an agreement in writing, which stipu- lated for a longer term than three years, but which, not being under seal, was void as a lease under the 8 & 9 Vic. c. 106. The rent was to be paid quarterly, and in advance. The tenant paid rent on several occasions ; and the receipts stated that the payments were made in advance. The Court held that, although the agreement was void, there was sufiBcient evidence of the rent being payable quarterly in advance. « Although the agreement was void," said Baron Parke, " as not being under seal as required by the 8 & 9 Vic. c. 106, there was ample evidence that the party in question consented to be tenant from year to year upon the terms that the rent should be payable at the beginning instead of the end of each quarter." The presumption which arises in these cases from the payment and acceptance of rent is the same against a corporation as against an ordinary person. Doe d. Pennington v. Taniere, 12 Q. B. 998, (64 E. C. L. R. 998.) The cases in which a yearly tenancy has been held to arise upon a holding over, are referred to more fully, j^ost, Lect. VIII. 38 See also Bishop v. Howard, 2 B. & C. 100, (9 E. C. L. R. 52,); Doe d. Rogers v. Pullen, 2 Bing. N. C. 749, (29 E. C. L. R. 745,) ; TENANCY FROM YEAR TO YEAR. 57 Before quitting the subject of yearly tenancy, it is right to remark that it differs from a tenancy at will in Chapman v. Towner, 6 M. & W. 100 3* Riseley v. Ryle, 11 M. & W. 16 ;* Doe d. Thompson v. Amey, 12 A. & E. 476, (40 E. C. L. R. 289,) ; Mayor of Thetford v. Tyler, 8 Q. B. 95, (55 E. C. L. R. 93,) ; In re Stroud, 8 C. B. 502, (65 E. C. L. R. 500,) ; and Doe d. Prior v. Ongley, 10 C B. 25, (70 E. C. L. R. 25,). But the payment of rent must, in order to have the effect of enlarging the tenancy at will into a tenancy from year to year, be made with reference to a yearly holding. Therefore, where a person paid rent under an agreement for the occupation of a piece of land, which did not specify any time during which the occupation was to last, and the rent was not paid with reference to a year, or to any aliquot part of a year, it was held that the tenancy was a tenancy at will only. See Richardson v. Langridge, 4 Taunt. 128; the judgment of Baron Parke, in Braythwayte v. Hitchcock, 10 M. & W. 497 ;* and Doe d. Hull V. Wood, 14 M. & W. 682.* Indeed, there is no doubt that a tenancy at will may exist, if this appears to be the intention of the parties, notwithstanding the reservation of a yearly rent. Doe d. Bastow V. Cox, 11 Q. B. 122, (63 E. C. L. R. 121,) ; Doe d. Dixie V. Davies, 7 Exch. 89.* («) And although a tenancy from year to year is ordinarily implied from the mere receipt of rent, it is clear that it is open to the party who receives the rent to rebut this pre- sumption' by explaining the circumstances under which it was received ; as, for instance, by showing that it was received in ignorance of the death of the person upon whose life the premises were held. Doe d. Lord v. Crago, 6 C. B. 90, (60 E. C. L. R. 89,). In this case, the rule was laid down by the Lord Chief Justice Wilde, in delivering the judgment of the Court, in the following terms': — " It is clear, that upon proof of the payment of rent in respect of the occupation of premises ordinarily let from year to year, the law will imply that the party making such payments holds under a tenancy from year to year, . . . But it is equally clear that it is compe- tent to cither the receiver or payer of such rent to prove the circum- stances under which the payments as for rent were so made, and by such circumstances to repel the legal implication which would result (fi) Sullivan v. Enders, 3 Dana, 66. 58 LANDLORD AND TENANT. the material particular of being assignable and capable of supporting an under lease by the yearly tenant; whereas a tenancy at will, strictly so called, is put an r*94."i ^^^ ^^ ^y ^^^ attempt on the *part of the tenant either to assign or underlet.^^ It sometimes happens that a house is taken under circumstances from which a yearly tenancy cannot be inferred, though a monthly or a weekly one may be so; and in those cases, a month's or a week's notice to quit is sufficient, for the notice has reference in all cases to the letting. Doe d. Parry v. Hazell, 1 Esp. 94 ; Doe d. Peacock v. Raffan, 6 Esp. 4.^*^ from the receipt of rent, unexplained." And a jury may take into consideration the surrounding circumstances in considering whether payments which have been made by persons in the occupation of premises were or were not made under an actual or supposed contract of tenancy. Woodbridge Union v. Colneis, 13 Q. B. 269, (66 E. C. L. R. 267,). ^^ That is to say, if notice of the assignment is given to the lessor. Ante, p. 17, note ^^. We have also seen that he may underlet at will. Ante, p. 17, note ^^. '^° Although the notice has usually reference to the letting, and where there is no express agreement in this respect, the law implies that certain notices are to be given upon certain lettings; the length of the notice does not necessarily/ depend upon whether the tenancy is a yearly, monthly, or weekly one. It is regulated by the express or implied agreement between the parties in this respect. In ordinary yearly tenancies, the law implies, in the absence of any express stipulation upon the subject, that the notice is to be a six months' notice; but, a tenancy may be yearly or monthly, that is to say, it may be determinable only at the expiration of a year, or of a month, or of successive years or months after its commencement, and yet it may be determinable at those periods by a shorter or longer notice than a half year's notice, or by a notice having no precise relation, in point of time, to a month. Thus, in Doe d. Peacock v. RaflFan, cited in the text, the letting was for a year, the rent was reserved weekly, and the notice required by the contract, was a four week's notice. TENANCY BY SUFFERANCE. 59 *It remains to state the nature of a tenancy hy |-#9g-| sufferance. A tenant hy sufferance is defined by Lord Coke, (1 Inst. 57 b), to be one wlio comes in hy right and holds over tvithout right}^ Thus, if a tenant pur auter vie continue in possession after the death of the person for whose hfe he held, he becomes tenant hy sufferance ; so an under-tenant who remains in posses- sion after the expiration of the original *lease, r*9g-i out of which the under-lease to him was de- rived. Simpkin v. Ashurst, 4 Tyrwh. 781, [S. C. 1 Cr. M. & R. 261.] This tenancy is the very lowest known to the law. (a) It cannot be conveyed, it cannot be enlarged by a release, in fact, it is a mere invention of the law to prevent the continuance of the pos- And in Doe d. Pitcher v. Donovan, 1 Taunt. 555, the letting was from year to year, and the contract pi'ovided that a quarter's notice should be given. See also Doe d. Chadborn v. Green, 9 A. & E. 658, (36 E. C. L. R. 233,); Reg. v. Cbawton, 1 Q. B. 247, (41 E. C. L. R. 523,) ; the observations of Baron Parke in HufFell v. Armi- stead, 7 C. & P. 57, (32 E. C. L. R. 497,) ; and Towne v. Campbell, 3 C. B. 921, (54 E. C. L. R. 920,). In the same manner the periods at which the rent is reserved have no necessary relation to the duration of the holding, or to the length of the notice to quit. See the cases cited above, Doe d. Bastow v. Cox, 11 Q. B. 122, (63 E. C. L. R. 121,) ; and Doe d. Dixie -v. Davies, 7 Exch. 89.* ^^ See Com. Dig. Estates hy grant (1) ; Watkins on Convey, pp. 23-28, 9th edit. There can be no tenancy at sufferance against the crown; for if the king's tenant holds over, he is an intruder. See Co. Litt. 57 b ; and the judgment in Doe d. Watt v. Morris, 2 Bing. N. C. 196, (29 E. C. L. R. 495,). (a) Any one who continues in possession without agreement, after the termination of a particular estate, is a tenant at sufferance. Liv- ingston V. Tanner, 12 Barb. 481 ; and by the revised statutes of New York one month's notice in writing is necessary before ejectment can be broujiht for his removal. 60 LANDLORD AND TENAJSTT. session from operating as a trespass.*^ You will observe also that, unlike a tenancy for years^ which always arises from contract, and a tenancy at will., which may arise either from express contract or by implication, this sort of tenancy never can arise by contract, either express or implied, for, if the owner of the land were to assent to it, it would become a tenancy at will, by means of that very assent. The truth is, that it was probably invented for the purpose of ]3re- venting adverse possession from taking place, when a particular estate determined without the knowledge of the reversioner. For instance, if A. had couA-eyed land to B. to hold during the life of C, C. might have died without A.'s knowledge, and then had B.'s continuance in possession been held tortious, the Statute of James the 1st would have begun to run, and at the end of twenty years A. Avould have been barred. This was prevented by considering B. tenant on sufferance. r*271 ^^^^' liowever, the Statute of 3 & 4 W. 4, c. *27, having, to use the words of the Court in Xepean V. Doe, 2 M. & AV. 910,*^^ done away with the doctrine of non-advei'se 2)ossession, the principal object attained by raising a tenancy at sufferance, is now at an end, and we shall probably hear but little for the future of that sort of tenancy. I have thus, as an introduction to the subject on which we are engaged, enumerated the various sorts of tenancy known to the law, and endeavored, briefly, to "^^ This appears to be the true description of a relation which is called a tenancy, but which is directly opposed to the ordinary definition of a tenancy, since it is necessary, in order that it should exist, that there should be no contract, either express or implied, between the so called landlord and tenant. ^3 See the notes to Nepean v. Doe, and Taylor v. Horde, 2 Smith's L. C 396; andjjos^, Lect. Vlil. POINTS RELATING TO TENANCIES. 61 point out the general nature of each of them. In the remaining Lectures, however, it is my intention, as I stated at the commencement of this Lecture, to con- sider them more in detail, and, in doing so, to confine my observations chiefly, if not altogether, to those which fall within the denomination oi chattel interests. *LECTURE II. [*28] Points relating to Crkation OF Tenancy 30 Who may be Lessors 31 Tenants in Tail 32 Enabling Statute 33 Requisites of Leases under Fines and Recoveries Act. 33 Tenants for Life 36 Ecclesiastical Persons 37 Enabling Statute 37 Disabling Statutes 37 Husbands leasingWife's Land 40 Persons acting under Powers 42 Statute of Uses 42 Effect of Leases under Powers 44 Guardians in Socage 46 Testamentary Guardians 46 Executors and Administra- tors , . . 46 Persons Non Compos 47 Married Women 47 Infants 48 Leases by, voidable only 48 Joint Tenants and tenants in Common 49 Parish Officers 50 Who may be Lessees 52 Infants 53 Married Women 55 Aliens 56 Denizens 56 What may be Leased 57 Things which lie in Grant 58 Things which lie in Livery 58 In the last Lecture, I enumerated the various sorts of tenancies known to the law. I now proceed to the consideration of their incidents, confining myslf, as I premised I would do, to such as are of an inferior de- gree to freehold. I mean to terms of years, and tenancies from year to year ; for with regard to tenancies strictly at will, and tenancies at sufferance, they are interests of so little practical importance, that I shall probably have 62 LANDLORD AND TENANT. r*'>Qi nothing farther to say concerning *either of them. A tenancy on sufferance, being the mere continuance oi possession after the rigid has determined, and hable to be destroyed either by the assent of the landlord, which woidd convert it into a tenancy at will, or by his dissent^ which would render it a tortious hold- ing, and being, therefore, from its very nature, in- capable of being accompanied by a reservation of rent, or by agreements of any description whatever, — such a tenancy, cannot, it is obvious, involve many points or subjects of discussion.^ And with regard to tenancies strictly at will, although we sometimes find them in existence pending some other contract between the parties, as, for instance, where a vendee is let into pos- session before the execution of the conveyance, or a lessee under an agreement for a lease, but before it is executed ; yet in these cases the tenancy at will exists merely for a short time, and merely as the consequence of a delay in completing some other contract, such, for instance, as that of sale or of demise. A tenancy at vdVi. created by express words is a thing almost unknown in practice ; and it is no wonder that it should be so, since we have seen that the commonest of all stipulations, that for rent, has the effect of turning it into a tenancy of another description.^ I shall therefore probably have very little or nothing more to say of tenancies i-^oA-| *on sufferance and at will strictly so called. And our attention in the remainder of these ^ Ante, Lect. I. 2 The mere reservation of a rent will not, as we have seen [ante, Lect. I. p. 23, note ^^), prevent a tenancy from being at will, if it appears clearly from the agreement that it is the intention of the parties that it should be of this description. A tenancy at will, with a rent reserved, occurs, however, very seldom in practice. POINTS RELATING TO TENANCIES. 68 Lectures will be directed to the incidents of tenancies for terms of years, and those from year to year. Now, in considering these, the best and simplest method will, I think, be to divide the entire subject into four heads. To consider: — Firsts those points which occur at the creation of the tenancy ; Secondly, those which occwT during the tenancy ; Thirdly, those which occur at the determination of the tenancy; And FourtJdy, as the parties to the relation are sometimes changed by the introduction which fre- quently takes place either of a new landlord, or a new tenant, whether by assignment of the term, or assign- ment of the reversion, or in other modes to which it will be necessary to advert, I must consider in the fourth place those points which occur upon a change either of the landlord or the tenant. In pursuance of this plan, I now proceed to the con- sideration of the first of the above heads, namely, to the consideration of those points which occur at, and relate to, the creation of the tenancy. *Now this again subdivides itself into four r#q-|-i distinct heads ; for all points which occur at the creation of the tenancy relate either — First, to the jMvty demising ; Or secondly, to the ixirty to whom the demise is made ; Or thirdly, to the thing demised ; Or fourthly, to the mode of demise. , We will therefore consider these four heads in order. First, then, with regard to the person demising. It is obvious that the ability of the party demising to make the lease must, in the great majority of cases, depend on the extent of his own interest, and it is 64 LANDLORD AND TEN AXT. equally obvious that, as far as his o'wn interest extends, he has a right to demise. Thus tenant in fee simple may demise for any term whatever,^ tenant in tail may make a lease which will be unimpeachable, at all events during his own life,'^ and in like manner the owners of inferior interests may make demises which will be unimpeachable as long as those interests r**^9'l ^continue. So far the matter is quite plain and obvious ; but there are likewise certain cases in which persons are empowered to make leases exceeding in duration the extent of their own interests, and even some cases in which persons possessing no estate at all, are nevertheless able to demise.^ And to the principal ^ Com. Dig. Estates hy grant, ((x. 2). * The passage in the text relates to the right of tenants in tail to grant leases at common law independently of any statute. These leases were valid during the life of the lessor, and voidable only as against the issue in tail ; but they were void as against the remain- der-men or reversioners. Com. Dig. Estates hy yrant, (Gr. 2) ; Bac. Ab. Leases, (D) ; Cruise's Dig. tit. XXXII. c. v. s. 71 ; Doe d. Phillips V. Rollings, 4 C. B. 188, (56 E. C. L. R. 188,). As to the affirmance of leases by the acceptance of rent by the issue in tail, see Pennant's Case, 3 Eep. 64 (4th Resolution). * As, for instance, where leases are made under powers. There is also an apparent exception to the rule, that the power of leasing is limited by the lessor's interest in the land in the case of leases which are valid by estoppel. If a lease by deed is made by a person who has at the time no estate whatever in the land, and this fact does not appear by the deed, the lease takes effect immediately by estoppel ; that is to say, the lessor is not allowed, during the con- tinuance of the lease, to aver that he had no interest in the land, nor can the lessee, if he has executed the indenture, dispute the lessor's title. And if the lessor afterwards, and during the term, acquires the land by purchase or otherwise, the lease takes effect in interest. Co. Litt. 47 b; Bac. Ab. Leases, (0) ; 2 ^Yms. Saund. 418, note (1); Trevivian v. Lawrance, 1 Salk. 276 ; Bayley v. Bradley, 5 C. B. 396, (57 E. C. L. R. 396,) ; Sturgeon v. Wingfield, 15 M. k W. 224*. "WHO MAYBE LESSORS. 65 of these cases it will be right, wliile we are upon this part of the subject, shortly to advert. And first — a tenant in tail could not originally have made any lease which would have bound his issue after his decease, for they claimed, equally with himself, from the original grantor, and paramount to any estate or incumbrance created by *their ancestor. He r*qq-i could, indeed, have barred, and put an end tq the estate tail, and then, being tenant in fee simple, might of course exercise the rights of one. But while he remained tenant in tail he could not have bound his issue by a demise, although such a demise was not absolutely void, but only voidable, so that if the issue had received rent after his death, it would ha\;e been set up and have become indefeasible.*' Such was the situation of tenant in tail and his lessee, but by stat. 32 Hen. VIII. c. 28 [a. d. 1540,] called the EnaUing Statute^ his powers were enlarged, and he was enabled to make leases binding on the issue in tail, but not binding on the remainder-man or reversioner; but this power was given to him, subject to certain conditions, namely; 1st, that the lease should be by indenture, not by deed poll,' which was required in order that the The operation of a feoffment to pass a freehold from a person who had no freehold in the land, was also an exception to the general rule. In these and the like cases '' a man might," as has been quaintly said, " have a lawful freehold from a person who had nothing in the land, as a man may have fire from a flint which has no fire in it." See the observation of Babyngton J. (9 Hen. 6, 2-i b), cited in Taylor d. Atkins v. Horde, 1 Burr. 00. Now, however, feoffments have no tortious operation. 8 & 9 Vic. c. lOG, s. 4. ^ Bac. Ab. Leases, (D) ; see also the authorities cited, ante, p. 31, note * ; Machell v. Clarke, 2 Ld. Raym. 778 ; and Doe d. Southouse V. Jenkins, 5 Bing. 469, (15 E. C. L. R. 676,). ' 32 Hen. 8, c. 28, s. 1 ; Bac. Ab. Leases, (E) ; Com. Dig. Estates hy grant, (B. 32), (G. 5). The statute applies only to leases made 66 LANDLORD AND TENANT. tenant might be liable to actions of covenant in case of his committing breaches of its stipulations : 2nclly, that it should begin from the clay on Avhich it is made,^ which is intended to prevent its termination from being postponed to a very distant period ; since, otherwise, a r*'^4-l tsi^^^t in *tail might have granted a lease to begin twenty years hence, and then, if he had himself died about that period, it would have taken effect almost entirely out of the estate of the issue : ordly, that any other lease in being of the same land should be surrendered or expired within a year of making the new one :^ since, otherwise, the reversion immediately expectant on the interest of the person in possession would have been out of the issue in tail so long as the two leases continued concurrent : 4thly, the lease must not exceed three lives, or twenty-one years ;^^ since it was thought unjust to keep the issue longer out of possession : 5thly, the lease must be of lands which have been usually let for twenty years before the lease made :^^ 6thly, the rent accustomably paid during that period [or a greater rent] must be reserved upon it ; and — ^^ by persons of the full age of twenty-one years. See s. 1. It does not apply to copyholds. Rowden v. Malster, Cro. Car. 42. 8 32 Hen. 8, c. 28, s. 2; Bac. Ab. Leases, (E). 9 32 Hen. 8, c. 28, s. 1. 1° Ih. " lb. A lease which does not except the trees is not good under this statute, if this exception has been made in the former leases. Smith V. Bole, Cro. Jac. 458; and the judgment in Doe d. Douglass r. Lock, 2 A. & E. 748, (29 E C. L. R. 344,). It was doubtful whether, under this act, premises which had been usually let together could be let in separate parts, 4 Cruise Dig. 71. But see now the 39 & 40 Geo. 3, c. 41 ; and Doe d. Egremont v. Williams, 11 Q. B. 688, (63 E. C. L. R. 688,). ^2 See as to what is to be considered to be the ancient rent where various rents have been reserved. Bac. Ab. Leases, (E.). TTHO M A TBE LESSORS. 67 Lastly, it must not be without impeachment of waste/^ Such are the provisions by which the Legislature in the time of Henry VIII. endeavored, while *they j-^^ p^-. increased the power of tenant in tail, to protect the interests of the issue ; and on this statute the right of tenant in tail to lease Avould at this day depend, were it not for stat. 3 & 4 Wm. IV. c. 74, for the aboli- tion of Fines and Becoveries, the 15th section of which enacts " that every actual tenant in tail, ichether in pos- session, remainder, contingency, or otherivise, shall have full poiver to dispose of for an estate in fee-simple absolute, OR FOR ANY LESS ESTATE, tJie lands entailed," as against the issue in tail, and also as against the remainder-men or reversioners}^ These words seem large enough to give tenant in tail an unlimited power of leasing, and possibly, therefore, it may at first sight have occurred to you that they reduce the statute of Henry VIII. to a dead letter. But this is not so ; for the 41st section of the Abolition of Fines Act provides, that every assur- ance by which a tenant in tail shall [under that act] effect a disposition of his lands shall be enrolled in Chancery within six calendar months, except it be a lease for not more than twenty-one years to begin from the date or [from any time] not more than twelve months from the date, and reserving a rack-rent or not less than five-sixths of one ; so that, even now, if 13 32 Hen. 8, c. 28, s. 2; Bac. Ab. Leases, (E.). 1"* This act did not come into operation, for the purposes mentioned in the text, until after the 31st December, 1833. Its general pro- visions do not apply to Ireland. See s. 92. The 4 & 5 Wm. 4, c. 92, which is the corresponding act for Ireland, is substantially the same as the English act, with the exception of the sections which relate to lands in ancient demesne and to copjholds. G8 LANDLORD AND TENANT. r*'^n *^ tenant in tail make a lease without intending to enrol it, he must proceed either under that exception, or under the statute 9 Henry VIII., which is in some respects more beneficial, since it enables him to make a lease for three lives, whereas the other gives him no alternative besides twenty-one years. The statute of Henry VIII., too, only requires the accustomed rent to be reserved, wliich is, in many cases, less than five-sixths of the rack-rent. There is another reason which renders it important to bear in mind the provisions of the statute of Henr}' VIII., namely, that they apply, as you mil see pre- sently, to various cases besides that of tenant in tail. Tenants for life have, generally speaking, no peculiar powers, except such as are granted to them under the express provisions of some deed or will, to the nature of which I will in a few moments advert.^^ But there is one class of tenants for life, I mean Ecclesiastical Persons^ with regard to whose power of demising pecu- liar rules exist, which it is necessary briefly to take notice of. r*'^7l *Ecclesiastical Persons might, with the con- sent required by law, have made leases for any period, which would have bound their successors (Shep. ^^ Mere tenants for life can make leases for their own lives only. These leases determine absolutely upon their death, and cannot be confirmed by the remainder-men. Bac. Ab. Leases, (I.) 2 ; Doe d. Potter V. Archer, 1 B. & P. 531 ; Doe d. Simpson v. Butcher, 1 Dougl. 50. But, if the remainder-men accept rent, this may be evi- dence of a new tenancy from year to year. Doe d. Martin v. Watts, 7 T. R. 83. Before the Statutes of Apportionment (11 Geo. 2, c. 19, and 4 & 5 Wm. 4, c. 22), if a tenant for life died on or before the rent-day, so that the lease determined before the expiration of the day on which the rent was reserved, no rent could be recovered either by his representative or by the remainder-man. In the.?c cases the rent is now recoverable. See post, Lect.V. WHOMATBELESSORS. 69 Touchst. 281): thus a Bishop might have leased for any period, with the consent of the Dean and Chapter, a Parson or Vicar with that of the Patron and Ordinary. But, without such consent, they could have made no leases which would have been binding upon their suc- cessors.^^ Such being the state of things at common law, the first statute which affected it was the Enabling Statute of 32 Henry VIII., c. 28, already mentioned,^^ and which enabled all ecclesiastical persons, except parsons AND VICARS, to make, even without the consent of any other person, leases for the same term, and subject to the same regulations as I have ah'eady enumerated in speaking of leases by tenants in tail.^^ Next caixie a number of Acts called the Disabling Statutes^ viz., the 1st EHz. c. 19; 13 Eliz. c. 10; 14 Eliz. c. 11 & 14; 18 Eliz. c. 11; 43 Eliz. c. 9, and 1 Jac. I. c. 3 ; the general effect of which is to restrain ecclesiastical per- sons from making leases, *even toith the consent r^qo-i of those persons whose concurrence was required at common law, for more than twenty-one years, or three lives, reserving the ancient rent, except in the case of certain houses in corporate and market towns.^^ " Bac. Ab. Leases, (H.) ; Com. Dig. Estates hy grant, (G. 5,) ; Doe d. BramnniU v. Collinge, 7 C. B. 939, (62 E. C. L. R. 939,). " Ante, p. 83. ^* Although the words of the statute seem to limit the power of leasing to ecclesiastical persons seised of an estate in fee-simple iu right of their churches, it has been held to apply to prebendaries, chancellors of cathedral churches, and precentors, as they are not specially excepted. Watkinson v. Man, Cro. Eliz. 350 ; Acton's case, 4 Leon. 51 ; Bisco v. Holte, 1 Lev. 112. It has been doubted whether a perpetual curate is within the act. Reeves v. M'Gregor, 9 A. & E. 576, (36 E. C. L. R. 201,). " See, as to these statutes, Chitty's Statutes (by Welsby and Beavan), tit. Leases. Leases which are not made in conformity with 70 LANDLORD AND TENANT. Besides these Acts the statute 39 & 40 Geo. III. c. 41 , has since passed, which provides for the amount of rent to be reserved, where property is demised in several portions, which had once been demised altogether. And lastly, the statutes of 6 & 7 Wm. IV. c. 20 & 64, confine the renewal of leases and the granting of con- current leases within certain limits."*^ the disabling acts of the 1 & 13 Eliz. are not absolutely void, not- withstanding the strong expressions used in these statutes. They are good as against the lessor during his life, if he is a corporation sole ; or if made by a corporation aggregate, they are valid so long as the dean or other head of the corporation remains. Co. Litt. 45 a ; and see Burn's Eccl. Law, 9th edit. tit. Leases. Where a dean and chapter made a lease under a local act, but not in compliance with its provisions, and afterwards rent was received under it from time to time by the deans and chapter for the time being and distributed among themselves, it was held that the lease, if voidable only, had been made good as against the parties who had received the rent, and that, if it was void, a demise from year to year might, under these circumstances, be presumed without proof of any instrument under seal. Doe d. Pennington v. Taniere, 12 Q. B, 998, (64 E. C. L. R. 998,). 2° See also, as to the renewal of leases by ecclesiastical persons, the 6 & 7 Wra. 4, c. 20, (explained by the 6 & 7 Wm. 4, c. 64,) ; the 5 & 6 Vie. c. 27; and the 5 & 6 Vic. c. 108. The 5 & 6 Vic. c. 27, was passed the better to enable the incumbents of ecclesiastical benefices to lease the lands of their benefices on farming leases. It empowers the incumbent of any benefice (with the consent of the patron and of the bishop of the diocese in which the lands are locally situated, and with the consent also of the lord of the manor, if the lands are copyhold and the lease cannot, by the custom of the manor, be made without his license,) to lease by deed any part of the glebe or other lands belonging to the benefice (with or without the farm- houses, cottages, &c.,) for any term not exceeding fourteen years, to take effect in possession, reserving the best and most improved yearly rent, without any fine or other consideration for the granting of the lease. The rent must be payable quarterly to the incumbent for the time being, and the lessee must not be made dispunishable for waste. WHOMAYBELESSORS. 71 *I have adverted to these statutes, because it r^on-i is quite necessary that you should be aware that He must covenant with the incumbent and his successors to pay the rent, and all taxes on the premises ; not to assign or underlet with- out the consent of the bishop, patron and incumbent ; to cultivate the lands according to the most approved system ; and to repair and to insure any buildings upon the land demised. Mines, minerals, tim- ber, and underwood must be reserved out of the demise ; and a power of re-entry, specified in the statute, and of a stringent kind, must be inserted in the lease. The term may be twenty years if the lessee covenants to adopt any system of cultivation more expensive than the usual course, or to drain or subdivide, or to embank and warp any part of the premises, or to erect buildings, or to repair in a more extensive manner, and at a greater expense than is usually required of lessees of farms, or to improve the premises in any other way (see s. 1). The word benefice is defined by the act to include every rectory, vicarage, perpetual curacy, donative, endowed public chapel, parochial chapelry, and district chapelry, the incumbent of which in right thereof is a corporation sole (s. 15). No lease is valid under this act unless the parsonage-house, and all offices, gardens, &c., (together with so much land belonging to the benefice situated most conveniently for actual occupation by the incumbent as amounts, with the site of the house, oflices, gardens, &c., to at least ten acres,) is not included in the lease, or in any other subsisting lease. This provision does not, however, apply where the land to be leased is situated five miles or more from the parsonage, or where there is no parsonage, from the church (s. 2). A proper survey and plan of the lands must be made before any lease is granted (s. 3). The 5 & 6 Vic. c. 108, enables ecclesiastical corporations, whether aggregate or sole (except any college or corporation of vicars choral, priest vicars, senior vicars, custos and vicars, or minor canons, and ecclesi- astical hospitals and their masters), to grant under certain restrictions leases for the purpose of building and improvements, for any term not exceeding ninety-nine years, to take effect in possession (see s. 1). They may also lease, for not more than sixty years, running water, way-leaves and water-leaves, canals, water courses, tram-roads, rail- ways and other ways; and they may grant mining leases of any mines, &c belonging to the corporation (ss, 4 & 6). This statute 72 LANDLORD AND TENAXT. r*4m *^^^'^® leases by Bishops and other ecclesiastical corporations stand on a very different footing from leases by private individuals ; and I have adverted to them, very briefly, because their provisions are so minute and complex, that, had I dwelt upon them, not only would a great deal of time have been taken up, but you would have found it impossible to carry their provisions away in your recollection. If you are de- sirous of becoming thoroughly acquainted with them, the best mode will be to peruse some of the late cases decided as to their construction ; for instance. Doe d. Tennyson v. Lord Yarborough, 1 Bing. 24 ; (8 E. C. L. H., 384;) Doe d. Gates v. Somerville, 9 Dowl. & Ry- land, 100. [S. C, 6 B. & C, 126 ; 13 E. C. L. R, 68.] Vivian v. Blomberg, 3 Bing. X. C, 311 ; (32 E. C. L. R., 150;) Doe d. Richardson v. Thomas, 1 P. & D., 578. [S. C, 9 A. & E., 556; 36 E. C. L. R., 201.]-^ The husband of a woman seised of a freehold r*41 1 *6state in real property, could, at common law, have made a binding lease of it for the joint lives of himself and wife ; and no longer, unless indeed he had, after her death, become tenant by the curtesy, and even then it would at all events have ended with his own life."^ The enabling statute of 32 Henry regulates, in detail, the mode in which these leases are to be granted, and renders necessary to their validity, in all cases, the consent of the ecclesiastical commissioners (ss. 1 — 20). When the lease is made by the incumbent of a benefice the patron must also consent; and where the property demised is copyhold, and the lease could not be made without a license from the lord, his consent must be obtained (s. 20). The 14 & 15 Vic. c. 74, regulates the granting of leases of lauds disappropriated from bishoprics in Ireland. 21 See also Doe d. Brammall v. Collinge, 7 C. B. 939, (62 E. C. L. R. 939,). 22 Shep. Touchst. 280; Roper's Husb. and Wife, c. 1, s. 5, c. 3. s. 1 ; 2 Wms. Saund. 180, note (9). WHOMAYBELESSORS. 73 VIII., sec. 3, however, applies to his case, and enables him to make leases for the same term, and subject to the same conditions that have been already enumerated.-^(a) 23 Ante, p. 33. The rent should be reserved to the husband and wife, and the heirs of the wife. Hill v. Saunders, 2 Bing. 112, (9 E. C. L. R. 505,) 4 B. & C. 529, (10 E. C. L. R. 689,). (a) The third section of the Act 32 Henry 8th, c. 28, was in these words : " Provided always, That the wife be made party to every such lease which hereafter shall be made by her husband of any manors, lands, tenements or hereditaments, being the inheritance of the wife ; and that every such lease be made by indenture, in the name of the husband and his wife, and she to seal the same. And that the term and rent be reserved to the husband and to the wife, and to the heirs of the wife according to her estate of inheritance in the same. And that the husband shall not in anywise alien, dis- charge, grant, or give away the same rent reserved, nor any part thereof, longer than during the coverture, without it be by fine levied by the said husband and wife. But that the same rent shall remain, descend, revert, or come after the death of such husband, unto such person or persons, and their heirs, in such manner and sort as the lands so leased should have done, if no such lease had been thereof made." It seems to have been held, on the construction of this statute, that these provisions only extend to leases of lands which the husband holds in right of his ivi/e, but that where he holds jointly with his wife, his single demise will be good and binding on the wife. Smith V Trinder, Cro. Car. 22. But see Bacon's Abridgt. Leases, c. 2, where it is said this case was never decided. This statute created the single exception in England to the rule, that the interest of a feme covert in real estate could be devested by fine or recovery only. The Statute 32 Henry 8th, c. 28, is said in the Report of the Judges, 3 Binn. 619, to be in force in Pennsylvania, except the 4th, 5th and 8th sections But to give effect to such a lease in Pennsyl- vania, it is presumed that the usual separate acknowledgment of the wife would be necessary. In New York, the Statute Henry 8th has not been adopted. But 74 LANDLORD AND TENANT. With regard to any chattel interests his wife might possess, as he could have assigned those away abso- lut'ely, so he might always have made valid leases of them for any term, and to any extent ; for cui licet quod est majus^ el etiam quod est minus Ucet.^^ The persons I have mentioned hitherto, are persons who possess an estate, though not one which will necessarily extend to the termination of the leases r*4-9"i ^^l^ich they are by the special *pro visions of the legislature empowered to grant. There are, however, other persons, who, having themselves no in- terest at all, are nevertheless able to create one. It 24 Co. Litt. 46 b, 300 a, 351 a ; Druce v. Denison, 6 Ves. 385 ; Wildman v. Wildraan, 9 Ves. 177. If the husband does not deal with the wife's chattels real, they belong to her on his death in pre- ference to his personal representative. Anon. Poph. 4 ; Sjm's Case, Cro. Eliz. 33 ; 1 Piatt on Leases, 139. And although the wife makes by marriage an absolute gift to the husband of all chattels personal in possession in her own right, whether he survive her or not, mere choses in action must be reduced into possession by the husband during his lifetime, or they will survive to the wife. Co. Litt. 351 b ; Fitzgerald v. Fitzgerald, 8 C. B. 592, (65 E. C L. R. 592,). it is not necessary in New York to have recourse to fine and recovery, in order to pass the estate of a feme covert. She may, during cover- ture, part with the whole or any portion of her interest in real estate, if the deed be acknowledged in the mode prescribed by the statute concerning the proof of deeds, Jackson ex. dem. ; Campbell & Reade v. Holloway, 7 Johns. R. 81. In this case, A. being seized of land in right of his wife, executed a lease to B. for life, in 1796, which was assigned to C. In 1806, A. and his wife executed a lease to D. for the same land, for the same lives, and with the same cove- nants. A. died in 1808, and the wife after the death of the husband in 1809, received rent of C. Held, that the lease of 1796 was void as to her; and she having made a valid lease in 1806 to D., she could not affirm the lease of 1796 to the prejudice of D. WHOMAYBELESSORS. 75 will be right to mention the chief cases of this description. First, those persons acting by virtue of Powers. It would be altogether foreign to the subject of these lectures, were I to go into any description of the his- tory and nature of Poivers, a subject on which volumes have been written, and on which volumes probably will be written.-^ A power is the creature of the Statute of Uses, it had no existence at common law. At com- mon law no man could give an estate who was not himself seised or possessed of an estate.^*' But the Statute of Uses having enabled a person seised of real property to convey it by one assurance to iises, that is to say, in plain English, purposes^ to be declared and made manifest by some subsequent document, it has been always held on the construction of that statute, that the person who conveys the estate need not be the same person who is to declare the uses to which it is conveyed ; thus, if A. has an estate in fee simple, he may convey it to B., to such uses as C. shall appoint ; C. may appoint that it shall be to the use of D. in fee- simple, and if he do, D. becomes *seised of an r*j^o-| estate in fee-simple in the land ; but C. might equally appoint to the use of D. for seven years. And if he did so, D. would have a lease for seven years, although C, from whom he received it, would have himself no estate at all.^^ This is to put the very sim- 2^ See Sugden on Powers. 2^ At common law it was essential to the validity of transfers of land that corporal possession of the land should be delivered to the purchaser in the presence of his neighbours. This mode of transfer was called a feoffment, with livery of seisin. Sugden on Powers, c. 1 ; 2 Black. Comm. 310. 2'^ Uses existed at common law before the Statute of Uses, ("27 lien. 8, c. 10) was passed ; but they were considered to create merely 76 LANDLORD AND TENANT. plest case. But it frequently happens that it is thought convenient in settling estates, that persons sometimes having a life interest, sometimes even no beneficial r*4-l-i ii^terest at all, should be enabled to *grant leases of a certain duration, and on certain conditions. In such cases, in order to enable them to do so, the land is conveyed to the use, amongst other uses, that the leases so made by them shall be valid. And then, as their appointment would have given a fee had the estate been conveyed to such uses in fee as they should appoint, so will the minor interest take effect by virtue a trust or confidence in the person to whom the estate was conveyed, to dispose of it as the person by whom it was conveyed should direct. This trust or confidence was cognizable only in a court of equity, and the person to whom the estate was conveyed was, to all intents and purposes, the owner of the estate at law. Thus, under a feoffment by A. to B., to the use of C, B. became the legal owner, and C. (the cestui que use^ had merely an equitable interest in the land. Great inconvenience was found to result from this separation between the beneficial and the legal ownerships. The Statute of Uses was passed to annex the legal ownership to the equitable estate; and the change effected by it is simply this : the statute executes the use, that is to say, it converts, by an arbitrary enactment, the interest of the cestui que use into a legal estate; annexing to it the "lawful seisin estate and possession" which was before in the person to whom the estate was conveyed. After the passing of the Statute of Uses the Courts of Law held that an use could not be limited upon an use, that is to say, that where there were several declarations of trust, the statute would operate on the first of them only. Therefore if an estate was limited to A., to the use of B., to the use of C, the legal estate was held to be in B., with a mere trust in equity for the benefit of C. Upon this foundation rests the English system of trusts, which are in fact unexecuted uses. See Sugden on Powers, chap. 1, sects. 1 & 2. A clear understanding of this elementary matter is important; for it is the foundation of a great part of our system of conveying real property. See Sanders on Uses and Trusts ; Hayes on Convey- ancing, c. 2. WHO MAY BE LESSORS. 77 of the iiower, as it is called, which they possess, of appointing it. And when a lease is thus created by the exercise of a power, it is considered as if it had been created by the person who gave the power, and as if it had been inserted in the very instrument or settlement by which the power was created ; for if I convey land to the use of such person as A. B. shall name, when A. B. has made a nomination, his nominee is my grantee, and not A. B.'s, since the property emanated from me, and A. B. was only my instrument to point out the channel into which it Avas to pass."^ All which, so far as it applies to the case of a lease, you will find clearly explained in the great case of Isherwood v. Oldknow, 3 M. &c S., 382, and^ in Rogers v. Humphreys, 4 A. & E., 299; (31 E. C. L. E,. 14:4.)(a) I will say no more on the subject of powers, or of the division of them into powers ap'pen- dant^ collateral^ and in gross^^ the subject more properly 2^ Sugden on Powers, c. 8, s. 4. 2^ A power is said to be appendant wben it is given to a person who Las an estate in the land, and the estate to be created by the power is to take effect in possession during the continuance of the estate to which the power is annexed ; as, for instance, a power to make leases. A power is in gross where the person to whom it is given has an estate in the land ; but the estate to be created by the power is not to take effect until after the determination of the estate to which it relates; as a power to jointure an after-taken wife. Powers are collateral when they are given to strangers; that is to say, to persons who have neither a present nor a future estate, or interest in the lands. Watkins on Convey, bk. 1, c. 21. It often happens that the instrument by which a power of leasing is conferred, limits its exercise by providing that the ancient and accustomed rent shall be reserved, or that the leases shall contain covenants of a particular description. In these cases, the leases are void if they are not made in accordance with the directions given ; and much litigation has (a) 4 Kent, 337. 78 LANDLORD AX D TEXAN T. r*4'=)l belonging *to a conveyancing than common law Lecture. It was, however, absohitely necessary that I should point out to you in what way leases made by persons executing powers take effect, and how and why they are, in contemplation of law, made by the person who created the power, although they frequently r^Af^n have the effect of overriding part *of an estate vested in the person who exercises the power ; as for instance, where tenant for life, having a power of leasing, makes a lease to take effect immediately, that lease, as is obvious, overrides part of his own estate so long as his own life continues ; since, had he not exercised the power, he would have continued tenant for life in possession ; whereas, by exercising it, he has converted his estate in possession into a reversion on the term vested in the lessee."*^ arisen from limitations of this sort iipon leasing powers. See Doe d. Douglass V. Lock, 2 A. & E. 705, (29 E. C. L. R. 325,) ; Fryer v. Coombs, 11 A. & E. 403, (39 E. C. L. R. 126,) ; Dayrell v. Hoare, 12 A. & E. 356, (40 E. C. L. R. 182,) ; Rutland v. Wythe, 10 CI. & F. 419 ; Doe d. Lord Egremont v. Stephens, 6 Q. B. 208, (51 E. C. L. R. 208,); Doe d. Lord Egremont v. Williams, 11 Q. B. 688, (63 E. C. L. R. 688,); and Doe d. Biddulph v. Hole, 15 Q. B. 848, (69 E. C. L. R. 848,). See also the 12 & 13 Vic. c. 26 (an act for granting relief against defects in leases made under powers of leasing iu certain cases); the 12 and 13 Vic. c. 110, and the 13 Vic. c. 17. By these acts leases made bond fide under leasing powers, and under v.hich the lessees have entered, but which are invalid through the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms of the power, are to be deemed, in equity, contracts for such leases as might have been gi-anted. And if the persons against whom such leases are invalid accept rent, and, before or upon its acceptance, sign any receipt, memorandum, or note in writing, confirming the leases, they are to be deemed to be confirmed as against them. See Sugden's Essay on the Real Property Statutes, e. vi. ^° See the cases cited in the last note. WHOMAYBELESSORS. 79 I will just mention the case of a guardian. A guardian in socage^^ may, I apprehend, on the authority of Bacon's Abridgment, Tit. Lease, s. 1, par. 9, and Eoe V. Hodgson, 2 Wils. 129, make a lease which will be good so long as his own interest as guardian lasts, and, when that is at an end, will be voidable only, not absolutely void, and capable of being confirmed by the infant at his full age ; and the better opinion seems to be, that the lease of a testamentary guardian stands on the same footing, inasmuch as statute 12 Car. II., c. 24, from which testamentary guardians derive their authority, seems to assimilate their office to that of a guardian in socage P {a) ^' Guardianship m socage, or hy the common law, existed wben a minor under fourteen was seized of lands or other hereditaments lying in tenure and holden by socage. In this case the guardianship devolved upon the nest of kin, to whom the inheritance could not possibly descend ; for instance, where the estate descended from the minor's father, his uncle by the mother's side was guardian. For before the 3 & 4 Wm. 4, c. 106, he could not possibly inherit. Litt. s. 123 ; Co. Litt. 87 b; 1 "Black Com. 461. 32 12 Car. 2, c. 24, ss. 8-9. The testamentary guardian has the custody, not only of the lands descended from or left by the father, but of all lands acquired by the infant during his non-age, which the guardian in socage had not. Watkins on Conv. 483. (a) Generally, in the United States, there are statutory provisions for the appointment of guardians, and an appointment under the statutes, except in the case of testamentary guardians, is necessary to give validity to the acts of the guardian. In IMassachusetts, South Carolina and Maryland, it has been expressly held, that the father, as natural guardian of an infant, has no authority to make a lease of the infant's land. May v. Calder, 2 Mass. 55 ; Anderson v. Darby, 1 Nott & Mc. 369 ; M'Gruder v. Peter, 4 Gill & Johns. 323. A lease for a longer period than the infancy of the ward, is void, lloss V. Gill, 4 Call. 250. In New York, in the case of Byrne v. Van Ilocsen, 5 Johns. 66, it 80 LANDLORD AND TENANT. r*471 *With regard to an executor or administrator, I need hardly say that, as all terms of years be- longing to the deceased are absolutely vested in him, so that he may, if he think proper, sell them, it is like- wise in his power to make underleases, if he see fit, for the benefit of the estate to do so."^ It remains, before concluding this part of the sub- ject, to mention one or two cases in which parties who, as far their estates are concerned would have been com- petent to lease, are prevented from doing so by dis- 22 Bac. Ab. Leases, (T.) 7. Several executors being in law but one person, a grant by one of them is as effectual as if all had joined, and it does not matter whether it be made in the name of the one, or whether it purport to be the grant of all, and one only executes it; ih. See also Keating v. Keating, 1 Lloyd & Goold, 133, where a lease by one executor appears to have been treated as valid ; and the judgment in Doe d. Hayes v. Sturges, 7 Taunt. 222, (2 E. C. L. R. 335,). Executors disposing of terms of years vested in them in right of their testators, may make a good title, even against a specific legatee, unless the disposition be fraudulent. Williams on Executors, part III. book I. c. 1. was held, that where a widow with children under age, entered and took possession of the husband's property after his death, the pre- sumption of law is, that she enters as guardian in socage to her children — that this guardianship ceases when the infant arrives at the age of fourteen years, so far as to enable the infant to enter and take the land to himself. Yet if no other guardian succeeds, the mother's guardianship will continue. That the guardian in socage is entitled to the custody of the land and the profit, for the benefit of the heirs, and may lease it ; and in Pond v. Curtis, 7 Wendall, 46, it is said, that the guardian may bring the action for the non-payment of the rent in his own name, though the suit be commenced after the ward has attained his age. The general rule, however, is, that a suit should be brought in the name of the ward, thus, A. B. by C. D., his guardian. See Carskadden v. M'Ghee, 7 W. & S. 140. WHOMAYBE LESSORS. 81 abilities imposed upon them by some general principle of law. And first a person non compos mentis^ as he can make no binding contract, so he can execute no valid lease ; his committee, however, may do so under the direction of the Court of Chancery by virtue of statute 43 Geo. III. c. 75, and 11 Geo. IV., & 1 Wm. IV. c. 65.^* *A lease made by a married woman is abso- r^j^o-i lutely void,^^ unless indeed it were made of her sole and separate property, in which case, though it would confer no right at law, equity would enforce it, and compel the trustee to execute one which would stand good, even at law,^® With regard to leases executed by infants, there pre- vails a great deal of doubt and difficulty. The question is, not whether the lease made by the infant is binding, 34 Co. Litt. 247 a; Beverley's Case, 4 Rep. 123. Idiots, whom Lord Coke calls "fools natural/' are comprehended within this terra. Before the statutes mentioned above, it had been held that the committee of a lunatic had no power to make a lease. Knipe v. Palmer, 2 Wils, 1-30. The general statement in the text requires some qualification ; for, according to the later decisions, a contract is not vacated by the unsoundness of mind of one of the contracting parties, if this fact is unknown to the other, and no advantage is taken of the lunatic. And this rule applies especially to cases in which the contract is not merely executory, but has been executed in whole or in part, so that the parties cannot be restored altogether to their original position. Molton v. Camroux, 2 Exch. 487 ; S. C. in error, 4 Exch. 17 j Beavan v. McDonnell, 9 Exch. 309. 3* See the judgment in Goodright v. Straphan, Cowp. 201. A married woman may, however, make a valid lease under a power. Sugden on Powers, c. 4, s. 1. 3^ A married woman, who has property settled to her separate use, without any restraint on alienation, is deemed, in equity, to be a feme sole, and she may dispose of the property accordingly. Sugden on Powers, c. 4, s. 1. 6 82 LANDLORD AND TENANT. for it certainly is not so, but whether it is absolutely void, or only voidable. In the former case, it would be incapable of confirmation by the infant at his full age. In the latter, it might be confirmed by any act done after his attaining his majority, and amounting to a re- cognition of it, such, for instance, as the receipt of the rent reserved on it. The better opinion seems to be, that the latter is the true state of the law, and that r*4.Q"i *^^ ^^ ^^^y voidable. See the question thoroughly discussed in Zouch d. Abbott v. Parsons, 3 Burr. 1806.-^^(«) Having now touched upon the difierent estates and capacities of persons capable of making leases, I will proceed to the next ^question, namely, loho may he lessee, having first merely observed that though, for the sake of simplicity, I have, in the observations I have been making, confined myself to the case of a single lessor, yet that where two or more persons are seised or pos- ^^ See also 1 Piatt on Leases, 28 ; and the arguments and judg- ments in Williams v. Moor, 11 M. & W. 256 ;* The Newry and Enniskillen Railway Co. v. Coombe, 3 Exch. 565 ; The North-West- ern Railway Co. v. McMichael, 5 Exch. 114, and The Dublin and Wicklow Railway Co. v. Black, 8 Exch. 181. The Court of Chan- cery may authorise the granting of leases of lands belonging to infants, when it is for the good of the estate. 11 Geo. 4, & 1 Wm. 4, c. 65. (a) In the United States generally, conveyances of land by minors for valuable consideration, are held to be voidable, not void. Ken- dall V. Lawrence, 22 Pick. 540; Gillet v. Stanley, 1 Hill, 121 ; Bool V. Mix, 17 Wend. 119; Wheaton v. East, 5 Yerg. 41; Phillips v. Green, 5 Monroe, 344; Worcester v. Eaton, 13 Mass. 375; Bank v. Chamberlin, 15 Mass. 220; Jackson v. Carpenter, 11 John. 539; Farr v. Sumner, 12 Verm 28; Ridgeley v. Crandall, 4 Md. 435; Cummings v. Powell, S Texas, 80 ; Ferguson v. Bell, 17 Mis. 347 ; M'Ginn v. Shaeffer, 7 W. 414. WHOMATBELESSOES. 83 sessed as joint tenants, or tenants in common, each of them may make leases of his or her respective share ; or they may all join in one lease, which, in the case of joint tenants, will operate as a joint lease of the whole, bnt, in the case of tenants in common, as a lease by each of his respective share, and a confirmation by each as to the shares of the others. See Heatherley d. Worthington v. Weston, 2 Wils., 232 ; Mantle v. Wol- lington, Cro. Jac. 166.^^ 38 See Com. Dig. Estates ly Grant, (G. G) (K. 8). Doe d. Poole V. Errington, 1 A. & E. 750, (28 E. C. L. R. 349,) and the judg- ment of Mr. Justice Williams, in Beer v. Beer, 12 C. B. 80, (74 E. C. L. R. 80,). Questions frequently arise in practice as to whether tenants in common should sue jointly or separately on covenants contained in demises of the joint property, and numerous decisions occur in the books upon this subject. The result of the cases appears to be shortly this. Where tenants in common demise jointly, and the covenant to pay rent, or perform any other act, is made with them jointly, they should join in the action. If they demise sepa- rately, reserving a separate rent, they must sue separately. The question depends mainly upon the mode in which the contract is framed. If the contract is unambiguous and clearly joint, the remedy will be joint, although it may appear that the interests of the cove- nantees are several. For the rule that a covenant with several per- sons is to be construed according to the interest of the parties, is a rule of construction merely which is only applicable where the language of the covenant is ambiguous, and which will not control the clearly expressed intention of the parties. Thus in Powis v. Smith, 5 B. & A. 850, (7 E. C. L. B. 279,) premises had been demised by two tenants in common, and the rent had, for a time, been paid to the agent of both. Afterwards they gave notice to the occu- pier to pay one moiety of the rent to each of them ; he did so, and separate receipts were given to him. An action was brought by both the tenants in common to recover rent which had become due since the notice. At the trial the plaintiffs were non-suited upon the ground that they ought to have brought separate actions. The Court granted a new trial, holding that it should have been left to the jury, as a question of fact, to consider whether the original joint contract 84 LANDLORD AND TENANT. r*"m *[The real property belonging to parishes is vested in the Churchwardens and Overseers of had been altered, and whether the parties had entered into a new contract of demise, with a separate reservation of rent to each, or whether they had merely intended to make an alteration in the mode of receiving the rent. In Wilkinson v. Plall, 1 Bing. N. C. 713, (27 E. C. L. R. 831,) two tenants in common sued jointly for double the value of the premises which had been holden over by the defendant after the expiration of a demise. It appeared upon the declaration that there had been no joint demise. The Court held that the plain- tiffs could not sue jointly. " If," said the Lord Chief Justice Tindal, in delivering judgment, " there be no joint demise there must be several actions of debt for rent, for a joint action is not maintainable, except upon a joint demise." In this case, indeed, the action was brought for double value, and was not founded upon a contract, but the Court thought that as the damages given by the statute when a tenant holds over are a compensation for the rent, they ought to stand upon the same footing as the rent itself. The later cases ap- pear to show that, sti-ictly speaking, the test is not so much whether the demise is joint or several, as whether the reservation of the rent is joint or several. Practically this does not make much difference, for the reservation of the rent usually follows the demise ; but it is apprehended that if two tenants in common were to join in a lease which was so framed that the demise was distinctly separate, each demising in terms his share only, but a single rent were reserved payable to the two jointly, the remedy for its recovery would (at all events if the lease were by deed, Co. Litt. 214 a,) be joint. Indeed as we have seen in the text, whenever tenants in common join in a lease, it operates as a demise by each of his share only, and a con- firmation by each of the shares of the others. In Sorsbie v. Park, 12 M. & W. 158*, Baron Parke laid down the rule as to the effect of the interest of the covenantees upon the mode of bringing the action in the following terms ; — " T think the coiTect rule is, that a covenant will be construed to be joint or several, according to the interest of the parties appearing upon the face of the deed, if the words are cajioble of that construction ; not that it will be construed to be several by reason of several interests, if it be expressly joint." Similar expressions are used in the judgment in Bradburne v. Bot- WHOMAYBELESSORS. 85 the poor *for the time being, as a quasi coipo- [*51] field, 14 M. & W. 572*. la Keigbtley v. Watson, 3 Exch. 722, Baron Parke said, "The rule that covenants are to be construed according to the interest of the parties, is a rule of construction merely, and it cannot be supposed that such a rule was ever laid down as could prevent parties, whatever words they might use, from covenanting in a different manner. It is impossible to say that parties may not, if they please, use joint words, so as to express a joint covenant, and thereby to exclude a several covenant, and that because a covenant may relate to several interests, it is therefore necessarily not to be construed as a joint covenant. If there be words capable of two constructions, we must look to the interest of the parties which they intended to protect, and construe the words according to that interest." And in Beer v. Beer, 12 C. B. 80, (74 E. C. L. B. 80,) Mr. Justice Maule distinctly recognised the correct- ness of this rule. « Several cases," said the learned judge, " were cited for the purpose of showing, that, whatever the nature of the subject of contract, if the instrument does in terms necessarily import that the promise or the covenant is made jointly with two, then the two covenantees, or the survivor, must bring the action. That is, I think, very sound law ; and it is beside the class of cases where the covenant, which from its language might be either joint or several, has been held to be joint or several according to the interest of the covenantees. You are not to impose upon the instrument a meaning contrary to the true sense of the words, but choose between two senses, of both of which the words are susceptible, and adopt that which is most conducive to the interests of the covenantees. But where the covenant is not capable of being so construed, however severable the interests of the covenantees may be, if the language they have used evince an intention that the covenant shcdl be Joint, all mxist join in an action upon it." See also the notes to Eccleston v. Clip- sham, 1 Wms. Saund. 153 ; Foley v. Addenbrooke, 4 Q. B. 197, (45 E. C. L. R. 197,) ; Hopkinson v. Lee, 6 Q. B. 964, (51 E. C. L. B. 964,) (a case the authority of which may perhaps be doubted) ; Wakefield v. Brown, 9 Q. B. 200, (58 E. C. L. R. 209,) ; Harrold v. Whitaker, 11 Q. B. 147, (63 E. C. L. R. 147,) ; and Doe d. Camp- bell V. Hamilton, 13 Q. B. 977, (06 E. C. L. R. 977,)- Tenants in common must, it seems, sever in an avowry for rent. PuUen v. 86 LANDLORD AND TENANT. r#c9-| ration, by the *59 Geo. 3, c. 12, s. 17, and they are entitled to make leases of these lands.^^] Palmer, 3 Salk. 207; Harrison v. Barnby, 5 T. R. 246. Joint tenants have an unity of title and interest, and differ in this respect from tenants in common. The general rule is that they must sue jointly in respect of contracts relating to their estate. Co. Litt. 180 b, Bac. Ab. Joi7it Tenants and Tenants in common (K.). It is apprehended, however, that this general rule, like the opposite one in the case of tenants in common, is subject to, and may be controlled by the express and unambiguous contract of the parties. One joint tenant may distrain alone, but he must avow in his own right, and also as bailiff to the other. Pullen v. Palmer, 3 Salk. 207. If several joint tenants demise at an entire rent, and one of them aliens his portion of the reversion, the severance of the reversion destroys the right to distrain for the rent. Stavely v. AUcock, 16 Q. B. 636, (71 E. C. L. R. 636,). ^^ Before this statute, a lease by parish officers of land belonging to the parish, created only a tenancy from year to year. Doe d. Higgs v. Terry, 5 Nev. & 31. 556. It does not extend to copyholds. Doe d. Bailey v. Foster, 3 C. B. 215, (54 E. C L. R. 215,). Under this act the church-wardens and overseers are a corporation of a peculiar kind ; they may take by demise without acceptance under seal, and any one of them may authorise a distress for the rent. Smith v. Adkins, 8 M. & W. 362*; Gouldsworth v. Elliott, 11 M. & W. 337*. See as to the effect of this statute upon property which has been conveyed to trustees, Rumball v. Munt, 8 Q. B. 382, (55 E. C. L. R. 382,) ; The Churchwardens of Deptford v. Sketchley, ib. 394, (55 E. C. L. R. 394,) ; and Doe d. Edney v. Benham, 7 Q. B. 976, (53 E. C. L. R. 976,). The 5 & 6 Wm. 4, c. 69, (an act to facilitate the conveyance of workhouses and other property of parishes, and of incorporations or unions of parishes in England and Wales,) does not transfer the legal estate in parish workhouses, &c., from the church- wardens and overseers to the guardians of unions. Doe d. Norton v. Webster, 12 A. & E. 442, (40 E. C. L. R. 223,). Since the 59 Geo. 3, c. 12, leases not exceeding the term of three years may be granted by the parish officers without writing, if all of them concur; but where a document was signed by one overseer only, and did not appear to be a grant by all the parish officers, as he did not profess WHOMAYBELESSEES. 87 *Next with regard to the Xessee. Any person r*cQ-| is capable of being a lessee, so far as the mere vesting of the estate is concerned ; with regard, how"- ever, to any liability for rent, or upon the other stipula- tions usually contained in a lease, on the part of the lessee, a person under disability is in the same situation as in the case of any other contract. Thus an infant lessee, if he elect at his full age to disagree to the lease, will not be liable for rent. See Ketsey's Case, Cro. Jac. 320 ; and Lowe v. Griffith, 1 Scott, 58. He must, however, make his election within a *rea- rmp:A-i sonable time after attaining his full age, wdiether he will avoid the lease or no ; and if he do not, he will become liable for rent. See Holmes v Blogg, 8 Taunt. 35; (4 E. C. L. R, 29 ;) Ketsey's Case, Cro. Jac. 320.^'^ to sign on behalf of all, nor was it shown by the document itself, or by extrinsic evidence, that they all concurred, it was held that there was no valid lease under this statute. Doe d. Lansdell v. Gower, 17 Q. B. 589, (79 E. C. L. R. 589,). Under s. 12 of this act, the church-wardens and overseers are empowered, with the consent of the vestry, to take lands within or near the parish on lease, for the employ- ment of the poor. In a case in which they took the land jointly with the surveyors of the highways, it was held that the statute did not apply, and that they were personally liable for use and occupation. Uthwatt V. Elkins, 13 M. & W. 772*. Where a tenant was let into possession by the church-wardens of a parish, and thereupon became either a tenant from year to year, or at will, it was held that this tenancy was sufficiently determined by a notice to quit, which purported to be given on behalf of the churchwardens and overseers who were in office when the notice was served (but who were not the persons who had let the tenant into possession), and which did not state to whom the possession was to be given up. Doe d. Bailey v. Foster, 3 C. B. 215, (54 E. C. L. R. 215,). ''o See also Kirton v. Elliott, 2 Bulst. 69, which appears to be the same case. Com. Dig. Enfant (C. 0). 1 Piatt on Leases, 528. The Newry & Enniskillen Railway Co. ?'. Coombe, 3 Exch. 565 ; The North-Western Railway Co. v. M'Michael, 5 Exch. 114. 88 LANDLORD AND TENANT. And, as an infiint has a right to bind himself to pay for necessaries, and lodging is an indispensable neces- sary of life, it seems consistent with principle, that he should be able to bind himself to pay for that even during his minority ; and therefore I conceive that if a young man under age were studying law in the Temple, or in an attorney's office, and his family were resident at a distance from town, lie would he liable to IMy the rent of the lodgings in ivhicJi he resided^ provided they were not of an extravagant description, so as to be unsuitable to his rank and condition in life ; and I think that the same rule would apply to other analo- gous cases. Indeed, in Lowe v. Griffith, 1 Scott, 458, where an infant practised the trade of a barber, and rented a house, it was left to the jury, and held by the Court afterwards to have been properly left to them, to say whether the house was a necessary of life, or a mere incident to his trade ; for, in the latter case, inas- much as an infant is incapable by law of trading, he would not be hable. The distinction, you see, is be- p^-- tween the necessary of life for which *an infant may bind himself to pay, if it be proper for one of his estate and degree, and the thing necessary not for the support of life in his due sphere, but for some collateral purpose. For instance, in the case I have just put of an infant residing in London for the pur- pose of studying law under a special pleader, I think he might contract to pay for suitable lodgings; but suppose the infant were to take out his certificate as a special pleader, and were to hire expensive chambers with an extra room for the accommodation of a clerk, and another for pupils, I am disposed to think that if an action were commenced against him for the rent, the Judge woidd intimate that that was not a species WHOMAYBELESSEES. 89 of demand which could be properly ranked under the term necessaries}^ So, with regard to a married woman, there is no rule of law which prevents a lease from being granted to her. Only at the determination of her coverture she may, if she think proper, waive and disagree to it, and she will then be wholly free from any sort of liability arising from it.^^ And these points, with regard to infants *and to married women are not pecu- r#c^-| liarly applicable to leases — for the general rule of law is, that a grant of any estate to an infant or married woman is prima facie good, because the law presumes it to be for their benefit, but at the determi- nation of the infancy or coverture they may, if they think proper, disagree to it. As to an alien, — at common law, he might, if he thought proper, purchase land, either for an estate of freehold, or a term, but he was incapable of holding it ; and, upon office found, the Crown became entitled to it, 1 Inst. 2 b. Subsequently by stat. 32 Hen. 8, c. 16, an Act which seems to have been dictated by the jealousy once felt of foreign manufactures, all leases of dwelling-houses and shops to alien artificers and handi- craftsmen, were declared absolutely void; see on the construction of this Act, Lapierre v. Mcintosh, 9 A. «& ""^ As to the construction put upon the term necessaries, in the later cases, see Harrison v. Fane, 1 M. & Gr. 550, (39 E. C L. K. 556,) ; Peters v. Fleming, 6 M. & W. 42 ;* Brooker v. Scott, 11 M. & W. 67;* Wharton v. Mackenzie, 5 Q. B. 606, (48 E. C. L. R. 606,). *^ See Co. Litt. 3 a. During the coverture she will not of course be liable to be sued upon the lease. By the 11 Geo, 4, & 1 Wm. 4, 0. 65, s. 12, leases to which married women are entitled may be surrendered and renewed under the directions of the Court of Chancery. 90 LANDLORD AND TENANT. E. 857 ; (36 E. C. L. R 305.^^) But any alien not fall- ing within this statute, may take a lease of a house for his residence, for, as Lord Coke observes (1 Inst. 2 b.), without a dwelling he cannot trade or commerce. And an alien, who has been naturalised, or has become a denizen, may hold a lease or any other real property, as a natural-born subject may.^^(a) '^ See also Jevens v. Harridge, 1 Wms. Saund. 5. This statute did not make void an assignment of a lease to an alien. Wootton v. Steffenoni, 12 M. & W. 129 f and see now the 7 & 8 Vie. c. 66, mentioned in the next note. '*•* Since this lecture was written, the law has been altered, and the 32 Hen. 8, c. 16, has been in substance repealed, so far as relates to the matter mentioned in the test. Bj the 7 & 8 Vic. c. 66, s. 5, aliens being the subjects of a friendly state, and residing in any part of the United Kingdom, may, by grant, lease, demise, assignment, bequest, representation, or otherwise, take and hold any lands, houses, or other tenements, for the purpose of residence or occupation, or for the purpose of any business, trade, or manufacture, for any term not exceeding two years, as fully and effectually as a natural born subject, except so far as relates to the right of voting for members of parliament. Under this act, which does not extend to the colonies (see the 10 & 11 Vic. c. 83, s. 3), any person born out of the Queen's dominions, of a mother being a natural born subject of the United Kingdom, is capable of holding real and personal property of any description ; and aliens who are the subjects of a friendly State may also hold every species of personal property, except chattels real, as effectuall}'- as natural born subjects (see ss. 3 and 4). This act also simplifies the mode of obtaining naturalization (see ss. 6 to 12). Denizens are aliens born who have obtained, ex donatione Regis, letters patent to make them English subjects. See Com. Dig. Alien (D) ; 1 Black. Comm. 374. Aliens enemy cannot sue in our courts, and contracts made with them are invalid. Bac. Ab. Aliens (D). Brandon v. Nesbitt, 6 T. R. 23 ; Potts v. Bell, 8 T. B. 548 ; Willi- sou V. Patteson, 7 Taunt. 439, (2 E. C. L. R. 436,) ; and Alcenius V. Nygren, 24 L. J. Q. B. 19. {(i) For the power of aliens (not naturalized) to take, hold, trans- WHO MAY BE LESSEES. 91 *Having considered who may he the lessor or r*-rj-j lessee^ the next question in order is luhat may he leaded. This is a part of the subject upon which, how- ever, I do not intend to dwell ; because, though it is clear that leases for a term of years might be demised of almost every sort of tenements, such, for instance, as tithes or offices, that do not concern the public revenue or the administration of justice,"*^ yet leases of this sort of property do not create the relation of landlord and tenant according to the ordinary acceptation of those terms which *we are in the habit of applying to r#-o-| the lessor and lessee, not of things which lie in ^^ The sale of oiEces which touch the administration or execution of justice, or the receipt of the revenue, is prohibited by the 5 & (5 Edw. 6, c. 16, and the 49 Geo. 3, c. 126. See as to the construction of these acts, Hopkins v. Prescott, 4 C B. 578, (56 E. C. L. R. 578,). mit and assign real estate in the United States, the student is referred to the Statute books of the several States. In most, if not all of them, it will be found that there is no difficulty in the way of an alien becoming a lessee ; in some of them. New York for instance, he must make and file, in the office of the Secretary of State, an affi- davit that he is a resident of the State of New York, and intends to reside in and become a citizen of the United States as soon as he can be naturalized, and that he has taken the necessary steps for that pur- pose ; having done this, he has, for six years, full power to hold and convey real estate, except that he cannot dispose of it by will, or make leases of it. In Pennsylvania, down to 1855, the power of aliens, friends at the time of the purchase, to take, hold, transmit and assign real estate, not exceeding five thousand acres in amount, was the same as that of natural born citizens. A proviso to the seventh section of the fAct of 26 April, 1855, Pamph. Laws, 330, declares " that no alien shall hereafter acquire and hold, either as trustee or in his own right, real estate of a greater annual value than is hereby limited to be held by a corporation." The corporation would seem to be limited to an income of two thousand dollars. 92 LANDLORD AND TEX ANT. grant, to use the technical phrase of the law, that is to say, are only demisable by deed, but of those which lie, to use the legal phrase, in livery, ^^ that is, of lands and houses which are in contemplation of law part of the land. To demises therefore of this sort of property, the observations which I have to make in these Lec- tiu'es will be confined. And this brings me to the last of the foiu" heads connected with the creatiofi of the tenancy, that is to say, the mode in which it is created. This part of the subject, however, invohdng as it does the natiu-e of leases for years, their different species, and the formalities required by law in order to their due creation, is too important a branch of the subject to be entered upon at this period of the evening. I shall therefore reserve it for the next Lecture.(a) '^^ Now, all corporeal tenements and hereditaments are deemed to lie in grant as well as in livery, so far as regards the conveyance of the immediate freehold. 8 & 9 Vic. c. 106, s. 2. (o) By the 14 §, 1 art. Constitution of New York, it fs declared : « no lease or grant of agricultural land for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be valid." MODES OF EFFECTING DEMISES. 93 *LECTUIIE III. [*59] Points relating to Creation OF Tenancy (continued) 59 The Mode in which Demises are effected 60 By Deed, by Writing without Seal, and by Parol 60 Effect of the Statute of Frauds, and of the 8 & 9 Vic. c. 106 62 Effect upon Demise of Non- compliance with Statute of Frauds 65 Requisites to all Leases 67 Proper "Words of Demise 67 Intention to be looked to 69 Difference between Leases and Agreements 70 Stamps 72 Agreements for a Lease can- not be by Parol only 75 Usual Incidents 77 The Premises 77 The Recitals 78 The Habendum 82 Period at which Term com- mences 83 Duration of Term 84 Option to determine at End of a certain Period 86 Who may exercise it 86 You will remember that, in the last Lecture, I divided the entire subject into four principal heads — the first comprehending those points wJiich relate to the creation of the tenancy — the second, those which occur during its continuance — the third, those which relate to its termination — the fourth, those ivhich arise upon the change of either of the jMiiies, whether upon the assign- ment of the term, or of the reversion, or for some other reason. I then proceeded to consider the first of these heads, that comprehending the points which occur at the commencement of the tenancy ; and this I again *subdivided into four distinct parts — the first, r#gQ-j regarding the lessor — the second, the lessee — the third, the thing demised — and the fourth, the mode in which the demise is effected. Of these we disposed of three during the last lecture. The fourth remains to be considered. 91 LANDLORD AND TENANT. Now, with regard to the demise, it may be effected in three wa^^s ; it may be either hy deed, or hy writmg icitliout deed, or icWiout writing, that is, either by mere word of mouth, or by circumstances from which a de- mise may be inferred, though the express terms in which it was made do not appear. Now, with regard to the adoption of these different modes, there is no case in which it is necessary that the lease should be by deed, except only where the thing demised is of a nature incapable of being con- veyed otherwise than by deed.^ And then, as a lease is a conveyance of a partial interest, a deed i>; requisite ; for instance, where tithes are demised, they, being in- corporeal hereditaments, will not pass without deed, and, consequently, a lease made of them must be by deed ; if it be not so, it is void. Nay, if a lease is made of tithes and lands at the same time without deed, the lessor cannot distrain for his rent, inasmuch l-^p, -, as the lease is void so far as *the tithes are con- cerned, and it is impossible to say, that any specific portion of the rent is chargeable upon the land only, Gardiner t: WiUiamson, 2 B. & Ad. 338 f (22 E. C. L. R. 146.) And although, in common parlance, you frequently tallv of tithes being let to the farmer, and although such arrangements are common through- out Eno^land, and are constantlv carried into effect without deed, yet, in point of fact, these species of ^ Since this lecture was written, a statutory exception to this general rule has been created. All leases required hy laio to he in writing must now be made by deed. See the 8 & 9 Vic. c. 106, s. 3, and post, p. 62. ^ See also Neale v. Mackenzie, 2 Cr. M. k K. 84 ;* S. C. in error, 1 M. & W. 747*; Bird v. Higglnson, 2 A. & E. 696, (29 E. C. L. R. 321,) ; Thomas v. Fredericks, 10 Q . B. 775, (59 E. C. L. E. 775) ; and Meggison v. Lady Glamis, 7 Exch. 685. MODES OF EFFECTING DEMISES. 95 arrangements made without deed, by which the tenant retains the tithes and pays the clergyman, or other tithe-o\\aier, a yearly sum, are not leases in the eye of the law, but mere sales by the tithe-owner to the terre- tenant ; and the proof of this is, that if the tithe-owner find it necessary to bring an action for the stipulated sum he declares, not for rent, but for tithes sold and delivered, just in the same form in which the vendor of any other sort of goods declares. In common par- lance, however, it is, as I have said, very usual to de- nominate such an arrangement a letting of the tithes^ and, indeed, it does so far resemble a yearly tenancy, that, in the absence of express stipulation to the con- trary, it requires half a year's notice to put an end to it; see Goode v. Howells, 4 M. & W. 198.* I have just touched on these points relative to tithes, as they are of very frequent practical occurrence.^ *But, with regard to leases of lands and r^rcy-i houses, tenancies of which are the principal subject of these lectures, they may be by writing with- out seal as well as by deed.* It is, indeed, frequently convenient to make them by deed, because, by that means, the parties reciprocally acquire the remedy by action of covenant for the breach of any stipulations contained in the lease. Writing without deed is, how- ever, frequently adopted as the means of demise. And, at common law, a lease, like any other contract, might have been made by mere words ; and, so it might still, were it not for the provisions of the Statute of Frauds 3 Since the passing of the acts for the commutation of tithes (see the 6 & 7 Wm. 4, c. 71, and the later acts), these arrangements cannot occur. "* Leases can now he made by writing without seal only when they are not required hy law to he in loritiiuj at all. See the 8 & 9 Vic. c. 106, s. o, and the next note. 96 LANDLORD AND TENANT. [the 29 Car. 2, c. 3, and of the 8 «& 9 Vic. c. 106.^ T-^no-, The first section of the Statute of Frauds *enacts, " That all leases, estates, interests, of freehold, * The 8 & 9 Vic. c. 106, s. 3, enacts, " that a feoffment made after the first day of October, 18t5, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed ; and that a partition, and an exchange of any tenements or heredita- ments, not being copyhold, and a lease required hy law to he in %criting, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or heredita- ments, and a surrender in Writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an interest which might by law have been created without writing, made after the first day of October, 1845, shall also he void at laio unless made hy deed." It will be observed that this section relates only to leases; mere agreements for a lease are not affected by it; and the leases upon which it operates are made void at laio only. It is not clear whether, since this statute, a lease in writing which purports to create a term exceeding three years, and which is not under seal, is to be deemed wholly void at law as a contract, so as to render all the stipulations contained in the instrument, and relating to the demise, incapable of being enforced, or whether the operation of the writing as an actual demise only is destroyed by the act. If the former of these constructions is correct (and it is difiicult to suppose that it was intended to invalidate that portion of the instrument which purports to create an actual demise, and yet to leave in force the other terms of it, which have reference to the demise, and which are framed on the supposition of its being valid), a person with whom a mere agree- ment for a lease has been made, may be, since the statute, in a better position than one who has obtained a contract not under seal, which is intended to operate as an actual lease, exceeding three years. It appears, however, to be clear that leases, invalid under this act, have suflBcient force to regulate the terms of a yearly tenancy resulting from payment of rent by the intended tenant, and that he becomes in this case, as in the analogous case of an occupation under an agreement which is void by the Statute of Frauds, tenant from year to year upon such of the terms of the writing as are applicable to a yearly tenancy. See the cases cited ante, p. 22, note ^'', and Tress v. MODES OF EFFECTING DEMISES. 97 or terms of years, or any uncertain interest of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created *by livery and r*^^-, seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized hy W7'iting, shall have the force and effect of leases or estates at will only." The second section excepts " all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord, during such term, shall amount unto two- thirds parts, at the least, of the full improved value of the thing demised, "(a) Savage, 23 L. J. Q. B. 839. In Lee v. Smith, 9 Exeli. 662, a per- son became the tenant of premises under a written agreement made since this act came into operation, but not under seal. The term mentioned in it exceeded three years, and the rent was made payable quarterly in advance. The tenant paid several quarters' rent, not however in advance, but the receipts which were given, described the payments as being made in advance. It was held that a tenancy from year to year had been created, and that although the agreement was void under the statute, the receipts were evidence that the rent was payable in advance. A provision requiring all leases in writing to be by deed was contained in an earlier act. See the 7 & 8 Vic. c. 76, s. 4. But this statute, which was obscurely framed, was repealed, after being in force for less than a year, by the 8 & 9 Vic. c. 106. See as to its construction. Burton v. Keevel, 16 M, & W. 307,* and Doe d. Davenish v. Moffat, 15 Q. B. 257, (69 E. C. L. R. 257,) . (a) The statute of Frauds, with some modifications, has been generally adopted in this country. In New York, the exception in favor of parol leases, is confined to terms not exceeding one year; and every contract for leasing for a longer period than one year, is declared void, unless the contract, or some note or memo- randum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made. Kev. Stat. N. Y. Ch. VII., Title 1, § 6, 7 & 8. And a parol lease 7 98 LANDLORD AND TENANT. These two sections, you will observe, render a writing necessary whenever the term demised is to extend for more than three years from the time of making ; and for one year, to commence in futuro, is void. Crosswell v. Crane, 7 Barb. Sub. Ct. 191. The revised statutes of Massachusetts also reduce the time to one year. Three years is the rule in Pennsyl- vania, and the statute of that State does not avoid parol leases for a longer period, but declares them leases at will only. Act 21 March, 1772, § 1 & 2 ; 1 Smith, 389. So in New Jersey, Lester v. Bartlett, 2 Carter, 628. In Pennsylvania, any note in writing, whether sealed or not, is sufficient if it shows a contract, and it is enough if it be signed by the party to be charged. Colt v. Selden, 5 Watts, 528 ; M'Farson's Appeal, 1 Jones, 503, 510; Lowry v. Mehaffy, 10 Watts, 387; but see Wilson v. Clark, 1 W. & S. 554. In this case there was a parol agreement for the sale of land. The vendor tendered a deed, the vendee refused compliance, the vendor brought an action for the pur- chase-money — held that he could not recover, that in Pennsylvania this was not a case for specific performance, though it might be for damages for the breach of the contract. See the opinion which was given by the late C. J. Gibson. See contra Clason v. Bailey, 14 John. 484, opinion by Kent; and Parrill v. M'Kiuley, 9 Gratt. 1. And it has been held, where a tenant went into possession and paid rent for three years under a parol lease for five years, and was then evicted, that he could maintain an action for damages, on the implied covenant for quiet enjoyment. Maule v. Ashmead, 8 Harris, 482. See Pugh V. Good, 3 W. & S. 57, for observations of C. J. Gibson on the Act of 1772. It was held in that case, that delivery of possession of land, in pursuance of a parol contract, amounted to part performance, and that nothing could afford a more definite measure of part performance, or one so little susceptible of perjury, as the notorious and unequivocal act of parting with the possession — and that under such circumstances the vendee as well as the vendor, might insist on specific execution of the contract. The fourth section of the English Statute of Frauds is omitted in Pennsylvania. Where there is no part performance, and though an estate may not be created for want of a writing, an action will nevertheless lie for the breach of the parol contract, but in such case the jury will not be allowed to enforce the contract MODES OF EFFECTING DEMISES. 99 accordingly it was held in Ryley v. Hicks, 1 Str, 651, that a parol lease for a year and a half, to commence at the distance of a year from the time of the making of it, is valid, since it would terminate within three years from that time : although a lease for three years to commence at a future day would be bad, since its termination would not fall within the three years, ''(a) Now with regard to the effect of this section *upon a ^arol lease not authorized by its provi- r#/-r-i sions, you will observe that it is not enacted that such a lease shall be void, but that it shall have the force and effect of a lease at will only. Now I have already pointed out to you, in the first lecture,^ in 6 In the same way it has been held, under s. 4 of the Statute of Frauds, which requires agreements "not to be performed within the space of one year from the making thereof," to be in writing, that a contract for a year's service to begin at a day subsequent to the making of the contract, must be in writing. Bracegirdle v. Heald, 1 B. & A. 722 ; Snelling v. Lord Huntingfield, 1 Cr. M. & R. 20.* See also Lord Bolton v. Tomlin, 5 A. & E. 856, (31 E. C. L. R. 855,). 7 Ante, p. 20. by damages given as a penalty. Irvine v. Bull, 4 Watts, 287 ; George v. Bartoner, 7 Watts, 530; Fox v. Heflfner, 1 W. & S. 375. It is not always necessary that the rescission of a lease should be in writing. Greiders' Appeal, 5 Barr, 422. When possession has been given under a parol lease, and there has been part performance by the lessee, it will take the case out of the statute in Ohio. Wilber v. Paine, 1 Hamm. 251. See contra, Kelly v. Walster, 10 Eng. Law & Eq. Rep., 517; Cocking v. Ward, 1 Com. Bench, 858, (50 E. C. *L. R. 858,). And generally the writing need not be under seal. Clark V. Gilson, 2 App. 18 ; Blood v. Hardy, 3' Shep. 61 ; Mayberry V. Johnson, 3 Green, 116; Colt v. Selden, 5 Watts, 528; Piuckney V. Hagadorn, 1 Duer, 89. Whether note by an auctioneer is suffi- cient. See Pinckney v. Hagadorn, 1 Duer, 89; Miller v. Pelletier, 4 Edw. Ch. 102; Vielie v. Osgood, 8 Barb. Sup. Ct. R. 130. {a) Croswell v. Crane, 7 Barb. Sup. Ct. 191, 100 LANDLORD AND TENANT. what manner tenancies at will gave birth to tenancies from year to year ; and how the Courts, anxious to favor the creation of the more convenient sort of tenancy, imply from the payment of a yearly rent by a tenant at will, an agreement between him and his lessor to create a yearly tenancy. The same doctrine applies to parol leases void by the Statute of Frauds ; that Statute converts them into leases at will, and then, like other leases at will, they are capable of being turned into tenancies from year to year by a payment of rent, or any other circumstance denoting the inten- tion of the parties that they shall be so considered. See Clayton v. Blakey, 8 T. E,. 3 ; Doe d. Rigge v. BeU, 5 T. E. 471 ; Richardson v. GifFord, 1 A. & E. 52, (28 E. C. L. R. 49,) ; Beale v. Sanders, 3 Bing. N. C. 850, (32 E. C. L. R. 390,). V) In cases to which the first section of the Statute of Frauds applies, it is not, you wiU observe, sufficient that the demise be in wiiting. It must be in writing signed in the manner directed by the Act, and that is, either by the lessor himself, or by some person r*fin ^^i^thorized by him in writing.^ And this *is one of the few cases in which writing is necessary 8 See Berry v. Liadley, 3 M. & Or. 498, (42 E. C. L. E. 263,) ; and ante, p. 22, note ^^. ^ This provision of the Statute of Frauds appears to have been rendered nugatory by the 8 & 9 Vict. c. 106. For, as has been already mentioned, that act makes it necessary that those leases which are required by the Statute of Frauds to be in writing only, should* also be made by deed ; and it is a rule of law that no one can execute a deed as agent for another, unless the authority to do so is given him by deed. Harrison v. Jackson, 7 T. R. 207 ; Berkeley v. Hardy, 5 B. & C. 355, (11 E. C. L. K. 495,). (a) Drake v. Newton, 3 Zabr. 111. MODES OF EFFECTING DEMISES. 101 to create an agency. The provisions of the fourth and of the seventeenth sections of the same Statute vary from those of the first in this respect, for, in neither of them, is the agent's appointment required to be a written one. Now with regard to leases merely by parol ; as they might have been made at common law to any extent, so now they may be made in any case in which they are not expressly prohibited. And even in those cases in which they are invalidated by the Statute of Frauds, although they do not operate so as to create a term ; yet, if they contain any special provisions compatible with the nature of a tenancy from year to year, those provisions are considered as engrafted upon the yearly tenancy which arises on payment of rent, for to use the words of the Court in Lord Bolton v. Tomlin, 5 A. & E. 856, 31 E. C. L. R. 855, " it is absurd to say that a parol lease shall be good, and yet that it cannot con- tain any special stipulations or agreements." (See also Richardson v. GifFord, 1 A. & E. 52, 28 E. C. L. R. 49; Beale v. Sanders, 3 Ring. N. C. 850, 32 E. C. L. R. 390,).^<^ Now, these being the three modes in which a lease may be created, namely hjdeed; [in those *cases r*/-'^-] in which it is not prohibited by the 8 & 9 Vict. c. 106;] by loriting witJiout deed; and in those cases in which the Statute of Frauds permits it, without writing ; it remains to be seen, what are the component parts of such a contract. Now these will of course vary ex- tremely, according to the nature of the subject-matter of demise, the customs of the part of the country in which it is situated, and a variety of other circum- stances which render special terms and stipulations "> See Berry v. Lindley, 3 M. & Gr. 498, (42 E. C. L. R. 263,) ; and the cases cited pos^, p. 73, note '^ 102 LANDLORD AND TENANT. necessary. Upon those terms which are most usually introduced into leases, I shall have something presently to say; but first I Avill observe, that there are four cir- cumstances which every lease, be it by deed, by writing, or by parol, must possess. These are, first, a lessor ; secondly, a lessee; thirdly, a subject-matter capahle of being demised ; and fourtlily, sufficient words of demise. Now with regard to the capacity of the lessor, the capacity of the lessee, and the subject-matter of the demise, I have akeady made such observations as I thought necessary in the last Lecture ; it remains, how- ever, to observe upon the last essential to a lease, I mean the rule that there must be proper and sufficient words of demise. The ordinary and most formal words of demise are r*f o-i demise^ grants lea^e^ and to farm let ;^^ *but as is stated in Bacon's Abridgment, tit. Leases (K), it may be laid down as a rule, that " whatever words ^1 By the 8 & 9 Vict. c. 124, (an act to facilitate the granting of certain leases), a short statutory form of lease is given, which is applicable to demises of lands and tenements. The covenants and other portions of the lease are very shortly expressed, and the statute enacts in substance, that in all leases made according to this form, or expressed to be made in pursuance of the act, the short statutory forms shall have the same meaning and effect as the longer forms generally inserted in instruments of this description. Very little use has, however, been made in practice of this statute. The 8 & 9 Vict. c. 106, s. 5, provides that in all deeds executed after the 1st of October, 18-45, the words "'give' or 'grant' shall not imply any covenant in law in respect of any tenements or hereditaments, except so far as the word 'give' or the word 'grant' may by force of any act of parliament imply a covenant." This exception relates to railway acts, and other acts of a like description, which often pro- vide that in the conveyances authorised by these statutes, covenants for title, quiet enjoyment, and further assurance shall be implied from the use of the word " grant." REQUISITES TO ALL LEASES. 103 are sufficient to explain the intent of the parties, that the one shall divest himself of the possession and the other come into it for a determinate time ; such words, whether they run in the form of a license, covenant, or agreement, are of themselves sufficient, and will in construction of law amount to a lease for years, as effectually as if the most proper and authentic words had been made use of for that purpose." And while stating this rule in the words of Bacon's Abridgment, I may as well embrace this opportunity of mentioning that the title Leases in that work, which was written by Lord Chief Baron Gilbert, is one of the greatest authorities upon the law of landlord and tenant, and is always treated by our Courts with the very highest respect.-^'^(a) To illustrate this rule by an example or two, there is an old case reported in Sir Francis Moore, *pla- r%nQ-\ citum 31, in which the owner of land said, ^2 See the judgments in Neale v. Mackenzie, 1 M. & W. 759 ;* and Wilkinson v. Hall, 8 Bing. N. C 532, (32 E. C. L. R. 248,). (a\ No particular form of words is necessary to constitute the rela- tion of landlord and tenant; it is sufficient if it appear to have been the intention of one to dispossess himself of the premises, and the other to enter under him for a determinate period pursuant to an agreement. Watson v. O'Hern, 6 Watts, 362 ; Moshier v. Eeding, 3 Fairf. 478. The following writing, signed by A., was delivered by him to B., "Received of B., three dollars and fifty cents, for the rent of my brick house in, &c., for one month, with the privilege of keeping it six months at the same rate. No. 91 or 95. ^December 1st, 1853." Held, that this was a lease of the premises given upon an executed consideration by A. to B., for one month from the date, and from month to month for five months longer, if B. should pay A. at the commencement of each month, three dollars and fifty cents for rent. Munson v. Wray, 7 Blackf 403. 104 LANDLORD AND TENANT. "you sliall have a lease for twenty-one years of my land, paying teii shillings yearly rent; make a lease in writing and I will seal it." This was held to be a sufficient lease for twenty-one years, for the Judges considered the intention to be that the lessee should have possession of the land immediately, and that the promise to seal a written lease was only for further assurance. This case, you will remember, was before the Statute of Frauds, otherwise the lease for twenty- one years woidd not have been good by j^cirol. So in Baxter v. Browne, 2 W. Bl. 973, Abrahall and Lloyd signed an agreement with Bro^vne, worded that they agreed " with all convenient speed to grant him a lease of, and they did thereby let and set to him," the premises for twenty-one years, at £290 per annum, payable half-yearly to the lessors. The lease to con- tain the usual covenants.^^ The Court said, " this is a good lease in jycesenti, with an agreement to execute a more perfect and formal lease in future." , Upon the other hand, it is laid down in the same section of Bacon's Abridgment, to which I have already referred, that, even if the most proper words are made use of whereby to describe and pass a present lease for years, yet if, upon the whole instrument, there r*^()-| appears no such intent, *but that they are only preparatory and relative to a future lease to be made, the law will rather do violence to the words than break through the intent of the parties. Thus in Roe v. Ashburner, 5 T. R. 163, where the words were " articles of agreement between T. S. and D. J., entered into in regard to his fidling mills, dry- salting mills, &c., that the said mills, &c., he sliall enjoy ; and I engage to give him a lease in, for the ^^ Moreover, in the agreement in this case, the words "this demise" occurred. See the case. REQUISITES TO ALL LEASES. 105 term of thirty-one years from Whitsuntide, 1784, at a clear yearly rent of £100," the instrument was held to be an agreement only, and Lord Kenyon remarked that the words " he shall enjoy," would have been sufficient words of demise, but that the following words showed that it was the intent of the parties that there should be another instrument to pass the legal interest.^* There is, perhaps, no question which occurs more frequently in practice than that which arises when it becomes necessary to decide within which of these two rules a particular case falls. I mean whether looking as we must in every such case do, to the intent of the parties, a particular instrument is to be construed as a lease or as an agreement for one. It is a question which it so frequently becomes practically necessary to solve, that a few hours cannot be better employed than in perusing the chief cases that have lately been de- cided on the subject. They are Dunk v. Hunter, 5 B. & A. 322, (7 E. C. L. R. 115,) ; Pinero v. *Jud- ^^^^ son, 6 Bing. 206, (19 E. C. L. H. 100,); Stan- *- ^ iforth V. Fox, 7 Bing. 590, (20 E. C. L. R. 264,); Doe d. Pearson v. Ries, 8 Bing. 178, (21 E. C. L. R. 496,) ; Warman v. Faithful, 5"b. & Ad. 1047, (27 E. C. L. E. 439,); Hayward v. HasweU, 6 A. & E. 265, (33 E. C. L. B. 79,); Chapman v. Towner, 6 M. & W. 100 ;* Rawson v. Eicke, 7 A. & E. 451, (34 E. C. L. B. 142,).^^ The reason I have cited so *many r*^9-i of these cases is that, without perusing a good " See the next note. " See also Chapman v. Bluck, 4 Bing. N. C. 187, (33 E. C. L. R. 817,) ; and Jones v. Reynolds, 1 Q. B. 506, (41 E. C. L. R. 646,). In the latter of these cases several letters had passed between the plaintiff and the defendant as to the letting of some iron ores and lands belonging to the plaintiff. Some expressions were used in the plaintiff's 106 LANDLORD AND TENANT. many of tliem, it is quite impossible to become at all familiar with the spirit in which the Courts are in the letters which seemed to refer to his having actually leased the iron ores; but it appeared, upon the correspondence, that the term was not to commence until a future period, and that the proportions in which the iron ores were to be worked were to be ascertained by a third person. It was held that no tenancy had been created. Mr. Justice Wightman said : " I agree that if an instrument be in other respects a present demise, a stipulation in it for a future lease will not reduce it to a mere agreement. Lawrence J., so puts it in Morgan d. Dowding v. Bissell, 3 Taunt. 65, 68 ; and he said, in that case, at Nisi Prius (3 Taunt. 67), <■ where there is an instrument by which it appears that one party is to give possession and the other take it, that is a lease, unless it can be collected from the instrument itself that it is an agreement only for a lease to be afterwards made.' Here no present demise appears ; the term is to begin from the ensuing 24th of June; and before an actual demise, there were matters to be ascertained, without which the terms of holding would not be perfectly complete." See also Eagleton v. Gutteridge, 11 M. & W. 465:* Gore v. Lloyd, 12 M. & W. 463 ;* and Doe d. Wood V. Clarke, 7 Q. B. 211, (53 E. C. L. R. 211,). In the last of these cases a proposal in writing for the letting of some farms mentioned the rent, the length of the term, and some other particulars of the proposed tenancy, but not the period at which the tenancy was to begin. At the foot of the proposal the following words were written, and were signed by the party intending to take the premises and by the agent of the intended landlord. " June 3rd, 1835. Agreed to the above rent, provided the house, cottage, and buildings are put into good tenantable repair, on a plan to be mutually determined upon, and finally settled within one month from the above date." It was held upon these facts, that there was no present demise, since the terms were to take effect only on the performance of a condition, and it was not ascertained when the tenancy was to commence. Strong circumstances of inconvenience which appear on the instrument, if it be construed as a lease, are held to indicate the intention of the parties that it should operate as an agreement only. See the judgment in Doe d. Morgan v. Powell, 7 M. & Gr. 990, (49 E. C. L. R. 990,). Since the 8 & 9 Vict. c. 106, the question whether an instrument oper- REQUISITES TO ALL LEASES. 107 habit of looking at instruments of this sort, and with the somewhat minute cliiFerences on which these ques- tions occasionally turn. There are several considera- tions which often render it important to determine whether an instrument operates as a lease or an agree- ment for one.(tf) In the first place, the stamp imposed on the two instruments is different.^'' In the second ates as an actual demise, or merely as an agreement to demise, will pro- bably occur less often in practice. For, as has been observed, that act prevents any writing not wider seal from operating as a lease where by law a writing is necessary to constitute a lease. It will, however, be necessary to refer to the principle of the cases cited in the text in order to ascertain whether any given instrument is rendered void by this act or not ; since mere agreements for a lease are not aflfected by it, and the question may still arise in cases in which, although the common law power of demising by parol still exists, the parties have unnecessarily entered into an agreement in writing. The rules laid down in the text may also be occasionally applicable to the construc- tion of badly framed deeds, the operation of which as demises or as agreements to demise is doubtful ; for, although the statute, where it applies, prevents any instrument which is not a deed from opera- ting as a demise, it obviously will not make any deed take effect as an instrument of present demise when it is not properly framed for that purpose. 1^ The stamp upon ordinary agreements is now 2s. 6^. See the 13 & 14 Vic. c. 97. A document may require a stamp, both as an agreement and a lease. Lovelock v. Franklyn, 8 Q. B. 371, (55 E. C. L. E, 371,). Glen v. Dungey, 4 Exch. 61, is a late case in which a question arose as to whether an instrument required a lease stamp. The stamps upon leases at a yearly rent, and upon leases for any (a) An agreement for a lease will be construed to be a present demise, if no future formal lease be contemplated, especially if possession be taken under it. Jenkins v. Eldridge, 3 Story, 325. A written authority from one to another to give a lease to a third person, on terms previously offered in writing by such third person, is not in itself a lease. Davis v. Thompson, 1 Shep. 209. 108 LANDLORD AND TENANT. r*7Q-i place, *tlie instrument, if it be construed as a lease, passes an estate in the land to the lessee, and enables the lessor to distrain for the rent reserved ; whereas, construed as an agreement, it passes no estate at law^ nor can the intended lessor distrain, unless in- deed the intended lessee, after his entry upon the land, pay rent according to the terms of the agreement. If he do, he becomes at law a yearly tenant on those terms, so far as they are consistent with that sort of tenancy ; and then he is at law entitled to a notice to quit. In equity, indeed, he always has a right to a specific performance of his agreement by the execution of a lease for the term agreed on. You will find these points illustrated by Regnart v. Porter, 7 Bing. 451 ; (20 E. C. L. R. 204,) ; and Mann v. Lovejoy, R. & M. j-*^^-, 355 ; (21 E. C. L. R. 765,).^' There is another *singular distinction between a lease and an period less than a year, are regulated by the 13 & 14 Vict. c. 97, and the 17 & 18 Viet. c. 83, s. 23. See also the schedule to the last-mentioned act for the stamps upon leases at a yearly rent for terms exceeding thirty-five years. ^^ See also Eiseley v. Ryle, 11 M. & W. 16,* and Thomson v. Amey, 12 A. & E. 476, (40 E. C. L. R. 239,). In the latter of these cases an agreement made between the plaintifi" and the defend- ant stipulated that the plaintiff would grant a lease of a farm to the defendant for a term of years, and the lease was to contain a covenant, among others, not to take successive crops of corn, and a condition of re-entry upon the non-performance of any of the covenants. The defendant entered into possession at the time fixed by the agreement for the commencement of the term, and continued to hold and pay rent until the action was brought ; but no further lease was ever executed. It was held that the defendant had become tenant from year to year, subject to the condition above mentioned. Mr. Justice Patteson, in delivering judgment, said, "It is said that a covenant respecting the rotation of crops cannot be engrafted on a yearly tenancy, but I see no reason why it should not. The tenant in EEQUISITES TO ALL LEASES. 109 agreement for one, which arises upon the construction of the Statute of Frauds. A lease, as we have seen, may be by mere words, if the term do not exceed three years ; but if it do exceed three years, then it must be in writing, signed by the lessor or his agent, and that agent must himself be authorized by writing to do so.^^ Now an agreement for a lease is governed by a different section of the Statute, the fourth section, which enacts " that no action shall be brought to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement, or some memorandum or note thereof, shall be in Avi'iting, signed by the party to be charged, or some other person thereunto by him lawfully authorized. "(a) Now you will observe upon the one hand that this enactment is, in one respect, less stringent than *that of the first section, since |-#^c-| the memorandum it requires may be signed either by the principal or by an agent, who need not, like an agent who signs a lease for more than three possession, under such circumstances, is bound to cultivate the land as if he were going to continue in possession as long as the lease itself would have lasted. It is argued that the tenancy arises by operation of law upon the payment of rent, and that the law implies no particular mode of cropping, nor any condition of re-entry. But the terms upon which the tenant holds are, in truth, a conclusion of law from the facts of the case and the terms of the articles of agree- ment, and I see no reason why a condition of re-entry should not be as applicable to this tenancy as the other terms expressed in the articles." See also Daniel v. Grracie, 6 Q. B. 145, (51 E. C. L. R. 145,) and Watson v. Waud, 8 Exch. 335. ^^ We have already seen that these leases must now be hy deed. Ante, p. 62, note ^. (a) See ante note to page 98, and the cases of Irvine v. Bull, 4 Watts, 287. George v. Bartouer, 7 Watts, 530. 110 LANDLORD AND TENANT. years, be authorized hy writing. On the other hand, the enactment of the fourth section is more stringent than that of the first, for there are certain leases which, as we have seen, are excepted out of the provisions of that section, and may, therefore, be made by mere parol. But there is no corresponding exception in the case of agreements, and therefore, though a lease for a year may be made by mere words, yet an agreement for such a lease cannot. On this distinction turned the case of Edge v. Strafford, 1 Tyrwh. 295, [S. C. 1 Cr. & J. 391*]. In that case the defendant had agreed by parol to take the plaintiff's lodgings for two years, and the action was brought against him for refusing to perform his contract. The Court held that the action woidd not lie, as the fourth section of the Statute of Frauds was imperative that such an agreement should be reduced to writing. Indeed, the Court in their judgment, which was delivered by the late Sir John Bayley, and is an excessively elaborate and instructive one, went still further, and held that, even if the words used had been sufficient to create a demise, still the action could not have been successfully maintained, in- asmuch as, by the lease, an interesse termini only would have been created, which, as I explained in the first Lecture, would not have been perfected into a term r*7fi1 ^^^^^^ *entry,-^'' and that the agreement to enter would have been invalid for want of a writing — which certainly is going extremely far. And I will freely confess that, had the case of Strafford v. Edge never existed, I should have thought it at least ques- tionable upon the principles laid down in the judg- ment of the Coiu't of Queen's Bench in Lord Bolton v. Tomlin, 5 A & E. 856, (31 E. C. L. R. 855), whether, 19 Ante, p. 13. USUAL INCIDENTS. Ill if there were a valid parol demise, all terms contained in that demise must not be binding ; at all events, if they were such as had a fair reference to the demise, and were calculated to render it operative. However, the concluding words of the judgment of the Court of Exchequer in Strafford v. Edge are, " The effect of the Statute of Frauds, so far as it applies to parol leases not exceeding three years from the making, is this, that the leases are valid, and that, whatever remedy can be had upon them in their character of leases^ may be resorted to, but that they do not confer the right to sue the lessee for damages for not taking possession." The entire judgment in Strafford v. Edge is very well worth your perusal, and in addition to it you may refer to Mechelen v. Wallace, 7 A. & E. 49, (34 E. C. L. R. 32,).2« Having said thus much on the four incidents which are inseparable from the very being of a lease, and which exist in every lease, namely, that there should be a lessor capable of demising, a *lessee capable r^n<-i-\ of holding the estate demised, a subject-matter capable of being demised, and apt and sufficient words of demise, we next arrive at those stipulations which, although not inherent to the very nature of a lease in such a manner that their absence would prevent the creation of any lease at all, are, nevertheless, the usual and proper incidents and concomitants of one. Now, the best way of treating these is, to consider how they appear, and in what manner they operate, in a lease hy deed^ that being, generally speaking, the most formal and carefully drawn sort of lease — observ- ing, as we go on, any difference which would arise out of the circumstance of the lease being by writing not under seal or by bare parol. 20 See also Vaughan v. Hancock, 3 C B. 7G6, (54 E. C. L. R. 76G,). 112 LANDLORD AND TENANT. Now the formal parts of which a lease by deed almost invariably is made up, are — 1st. The Premises. 2ndly. The Habendum. 3rdly. The Reddendum. 4thly. The Covenants. 5thly. Any Exceijtion^ Proviso^ or Condition, by which the contract is qualified. Now, with regard to the lyremises, under which word is comprised all that part of the lease which precedes the liabendwm, their office is to contain the recitals, if there be any, to name the lessor and the lessee, to set r*7Q-| forth the consideration, and to specify the subject-matter of demise.^^ That *a lessor, a 2^ The premises usually contain the date of the lease, and the names and descriptions of the parties. The naming of the parties at the commencement of the deed is not only useful in order to make the contract clear, but it is important since the rights of action on it may be affected, if any person intended to be a party is not mentioned as such. For it was an inflexible rule of law that when a deed was inter partes, that is to say was expressed to be between certain named parties (as, for instance, between A. of the first part, B. of the second part, and C. of the third part), no one who was not a party could sue on it, even although it contained an express covenant with him, or the contract appeared otherwise to have been made for his advantage. 2 Inst. 673; 2 Eoll. Ab. Faits (F. 1); Berkeley v. Hardy, 5 B. & C. 355, (11 E. C L. R. 495,) and the judgment in Bushell V. Beavan, 1 Bing. N. C 120, (27 E. C. L. R. 570,). And this rule is still in force, subject to an exception created by the 5th section of the 8 & 9 Vict. c. 106, which enacts that <• under an indenture executed after the 1st of October, 1845, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or covenant respecting any tenements or hereditaments may be taken, although the taker thereof be not named a party to the same indenture." The date of the lease is also frequently important, and care should be taken in practice to see that it is correct with reference to any portions of the lease which may refer to it, as, for instance, the habendum. See j)ost, p. 83. THEPREMISES. 113 and a subject-matter of demise, are essential to lessee, the existence of every lease, we have already seen. With regard to recitals the reason for inserting them is usually to prevent the parties to the lease from after- wards denying the matters recited, for a lease by deed operates like any other deed as an estoppel, and pre- vents the parties to it from afterv^'^ards disputing facts recited in it^\a) With regard to the consideration, that ^^ See as to the estoppel by recitals, Salter v. Kidley, 1 Show. 58 ; Com. Dig. Estoppel (A. 2) ; the notes to the Duchess of Kingston's (a) The recital of any fact material to the conveyance, the exist- ence on or non-existence of which, would determine its validity, is uo doubt binding on the parties to a deed, and will estop them from dis- puting it thereafter in any proceeding arising on the deed. But this in the words of G-reenleaf, Vol. I., p 267, " is only true of particular, not of general recitals; thus, if one be bound in a bond conditioned to perform the covenants in a certain indenture, or to pay the money mentioned in a certain recognizance, he shall not be permitted to say, that there was no such indenture or recognizance. But if the bond be conditioned, that the obligor shall perform all the agreements set down by A., or carry away all the marie in a certain close, he is not estopped by this general condition from sajing, that no agreement was set down by A., or that there was no marie in the close. Neither does this doctrine apply to that, which is mere description in the deed, and not an essential averment; such as, the quantity of land ; its nature, whether arable or meadow ; the number of tons, in a vessel chartered by the ton ; or the like ; for these are but incidental and collateral to the principal thing, and may be sup- posed not to have received the deliberate attention of the parties." Whether the recital of the payment of the consideration money in a deed of conveyance, is an estoppel as to the amount recited to be paid, is differently ruled in England and in this country. In Eng- land, the recital is held to be conclusive evidence by estoppel, not only of the fact that there was a consideration, but also of its amount and of its payment. Shelley v. Wright, Willes, 9; Rowutree v. Jacob, 2 Taunt. 141 ; Lampon v. Corke, 5 B. & Aid. 606, (7 E. C. 114 LANDLORD AND TENANT. r*^Q-| *i^ usually in a lease expressed to be the rent thereafter reserved, the covenants by the lessee, case, 2 Smith's L. C. 456 ; Lainson v. Tremere, 1 A. & E. 792, (28 E. C. L. R. 367,) ; Bowman v. Taylor, 2 A. & E. 278, (29 E. C. L. R. 142,) ; Carpenter v. BuUer, 8 M. & W. 209 ;* Beckett v. Brad- ley, 7 M. & G-. 994, (49 E. C. L. R. 994,) ; Pargeter v. Harris, 7 Q B. 708, (53 E. C. L. R. 708,) ; Pilbrow v. Pilbrow's Atmospheric Railway Co. 5 C. B. 440, (57 E. C. L. R. 440,) ; Young v. Rain- cock, 7 C. B. 310, (62 E. C. L. R. 310,) ; Wiles v. Woodward, 5 Exch. 557 ; and Hills v. Laming, 9 Exch. 256. The estoppel by recitals or other statements in a deed, does not extend beyond actions L. R. 205 ;) Baker v. Dewey, 1 B. & C. 704, (8 E. C. L. R. 297;) Hill V. Manchester Waterworks, 2 B. & Ad. 544, (22 E. C. L. R. 229,). The generally received American doctrine is, that the notoriety of the practice of putting another than the true consideration in deeds, makes this an exception to the general rule, by limiting the force of the recital to being conclusive as to the fact, that the deed is the deed of the party, and that there was a consideration ; but the amount of the consideration, and whether it has been paid, are not considered as conclusively established by the recital ; as to these matters the deed may be contradicted. A man is estopped by his deed to deny that he granted, or that he had a good title to the estate conveyed ; but he is not bound by the consideration expressed. Wilkinson v. Scott, 17 Mass. 257 ; Clapp v. Tirrell, 20 Pick. 250 ; Schilenger V. M'Cann, 6 Greenl. 364 ; M'Crea v. Purmort, 16 Wend. 468 ; Bowen v. Bell, 20 Johns. 338; Hamilton v. M'Guire, 3 S. & R. 355; Bolles v. Beach, 2 Zab. 680; Burbank v. Gould, 15 Mass. 118; Pritchard v. Brown, 4 New Ham. 400; O'Neal v. Lodge, 3 Harr. & M'Hen. 433; Wilt v. Franklin, 1 Binney, 519; Bolton v. Johns, 5 Barr, 151; Union Canal Co. v. Young, 1 Wh. 431; Wolf V Ilauver, 1 Gill. 84 ; Morgan v. Bitzenbuger, 3 Gill. 355. The grantor is not estopped to prove that there were other consi- derations than those expressed in the deed. Emmons v. Littlefield, 1 Shep. 233; Burbank v. Gould, 3 Shep. 118; Morse v. Shattack, 4 New H. 229 ; Belden v. Seymour, 8 Conn., 304 ; M'Crea v. Pur- mort, 16 Wend. 460; Whitbeck v. Whitbeck,l9 Cowen, 266; Shep- perd V. Little, 14 Johns. 211 ; Bowen v. Bell, "JO Juhus. 338. THE PREMISES. 115 and the *fine, if there be one. Where a fine is r*or|-. paid at the time of making the lease the lessor or proceedings on the deed itself; that is to say, it is only in pro- ceedings founded on the deed containing the recitals that they are conclusive evidence of the facts stated in them j in other collateral proceedings the recitals are evidence against the party who executed the deed, like any other admission, but they may be explained or contradicted. The limitations upon the general rule, that parties are estopped by statements in deeds executed by them, were stated by Baron Parke, in Carpenter v Buller, in the following terms : — '' If a distinct statement 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 com- petent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Co. Litt. 352, b ] and a recital in instruments 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 found in the case of Lainson v. Tremere, where, in a bond to secure the payment of rent under a lease stated, it was recited that the lease was at a rent of £170, and the defendant was estopped from pleading that it was £140 only, and that 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 obligor can- not plead that he appeared himself, and deny that he is married, in an action on the bond. 1 Roll. Abr. 873, c. 25. 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 party 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 wholly collateral to it, to dispute the facts so admitted, though the recitals would cer- tainly be evidence; for instance, in another suit, though between the same parties, where a question should arise, whether the plaintiff held at a rent of 170^. in the one case, or was married in the other case, it could not be held that the recitals in the bond were conclusive 116 LANDLORD AND TENANT. r*o-n ^^sually *acknowledges the receipt of it in this part of the instrument, and this sort of receipt evidence of tliese facts. Still less would matter alleged in the instru- ment, wholly immaterial to the contract therein contained ; as, for instance, suppose an indenture or bond to contain an unnecessary description of one of the parties 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 any other proceeding between them." These observations appear to imply that such a description would estop the parties in an action on the deed itself, even although immaterial to the contract. In Pilbrow V. Pilbrow's Atmospheric Rail. Co., 5 C B. 440, (57 E. C. L. R. 440,) a company was described, in a deed made between it and the plaintifi", as being registered and incorporated in pursuance of the Joint Stock Companies Registration Act ; a description not, however, immaterial to the contract. It was held in an action on the deed, that the company was estopped from denying its registration and incorporation. All the parties to a deed are not, however, necessarily estopped by every recital in it. It is only where a recital is intended to be a statement, which they all have mutually agreed to admit as true, that it has the force of an estoppel with respect to all of them. Where it is intended to be the statement of one party only, the estoppel is confined to that party ; and the intention of the parties in this respect is to be gathered from the instrument itself. See the judgment in Stroughill v. Buck, 14 Q. B. 787, (68 E. C. L. R. 787,). This rule is clearly illustrated by the facts of that case, which were as follows : — iVn indenture had been made between the defendant and the plaintifi", which recited that the defendant had advanced money to a third person on the security of some deeds, that this money was still owing, and that the defendant was interested in the deeds to the extent of the advance. It also recited that it had been agreed that the plaintifi' should make further advances to this third person, and that the defendant should assign the deeds and his interest therein to the plaintiff as a security; and it contained a covenant by the defend- ant that the money advanced by him was still due. In an action on this indenture the plaintiff assigned as a breach that the money ad- vanced by the defendant was not due at the time of the making of the covenant. It was objected on the part of the defendant that the THE PREMISES. 117 being by deed, operates as an estoppel, and is so con- clusive that it is incapable of being afterwards denied or contradicted by evidence."^^ plaintiff was estopped by the recitals in the deed from alleging this fact. But the Court held, that the recital as to the advance of the money must be taken to be the language of the defendant only, and consequently that the plaintiff was not bound by it. In Browning v. Beston, 1 Plowd. 134, it is said in the argument that a distinction exists between deeds poll and indentures, for " the words in an indenture are the words of both parties, and although they are spoken as the words of one party only, yet they are not his words alone, for there is the assent of the other party to each other's words; and therefore when they are written they shall be taken in such manner as the intent of the parties may be supposed to be. And they shall not be taken most strongly against one and beneficially for another, as the words of a deed poll shall, for there the words shall be taken most strongly against the grantor, and most available to the grantee. But it is not so in a deed indented, because the law makes each party privy to the speech of the other : and therefore we ought not to make such construction of words in an indenture as in a deed poll. But if an indenture contains matter uf substance, the law will make such reference thereof as is most Jit and reasonable, and will say that the words are spoken by him who could most properly speak them." See also the arguments in Russel v. Gulwell, Cro. Eliz. 657 j Scovell and Gavel's Case, 1 Leon. 317, and the authorities there cited. It may be convenient to mention here that the estoppel between landlord and tenant which prevents the latter from disputing the landlord's title, ceases on the expiration of the lease j subject, however, to the qualification that if the tenant came into possession under the landlord, he must restore the possession before he can dispute the title ; see Co. Litt. 47 b ; Bayley v. Bradley, 5 C. B. 396, (57 E. C. L. R. 396,) ; and the observations of the Lord Chief Justice Wilde, ib. 400, (57 E. C. L. R. 400,). 23 See Baker v. Dewey, 1 B. & C. 704, (8 E. C. L. R. 297,) j Rowntree v. Jacob, 2 Taunt. 141 ; and Baker v. Heard, 5 Exch. 959. The receipt which is usually indorsed on the back of a deed not being under seal, does not create an estoppel; but, like any other receipt not under seal, admits of being explained or contradicted. 118 LANDLORD AND TENANT. r*QC)-i *Thc hahendiim is that part of the lease which begins with the words " to have and to hold /' its office is, to specify the quantity and quality of the lessee's estate ;^ for instance thus : — " To have and to hold the said messuages and i^remises with the appurte- nances hereinhefore mentioned and intended to he hereby demised^ unto the said A. B., his executors, administrators, and assigns, from the 1st day of January now last past, for, and during, and unto the full end and term of, tiventy-one years thence next ensuing, and fully to he com- plete and endedr It is often said by our text-writers that the hahendmn in a deed may limit and ascertain the extent of general words used in the premises, but cannot contradict or destroy them ; thus, for instance, if in the premises A. were to demise to B. for ninety- nine years habendum to him for twenty-one years, the habendum would be void, and the lessee would take for ninety-nine years; (see Plowden, 153), but, if, in the premises, A. demised generally to B. without naming the number of years, and then came an habendwn for ninety-nine years, this habendum would be operative since it would only explain, not contradict, the words used in the premises (see 1 Inst. 183 a)."^ Straton v. Eastall. 2 T. R. 366 ; Lampon v. Corke, 5 B. & A. 606, (7 E. C. L. R. 205,) ; Graves v. Key, 3 B. & Ad. 313, (23 E. C. L. R. 143,). In Lampon v. Corke it was held that a release contained in a deed did not amount to an estoppel, this portion of the deed being ambiguous when compared with the statements on the same subject in the recitals. 24 See the judgment in Doe d. Timmis v. Steele. 4 Q. B. 667, (45 E. C. L. R. 667,) ; where it is said that the proper office of the habendum is to limit, explain, or qualify the words in the premises, provided it be not contradictory or repugnant to them. 2* See also Co. Litt. 299 a. The habendum marks the duration of the tenant's interest, and its operation as a grant is only prospective ; see the judgment in Wyburd v. Tuck, 1 B. & P. 464. Therefore THE HABENDUM. 119 *In construing the habendum of a lease difR- r*oq-| culties sometimes arise as to the precise period at which the term is to begin or end, and the precise duration of the estate limited.^^ With regard to the where a tenant had entered before the execution of the lease, and had pulled down buildings, it was held that he was not liable for these acts on the covenant to repair contained in the subsequently executed lease, although the liahendum referred to a period anterior to the acts complained of. Shaw v. Kay, 1 Exch. 412 ; see also Doe d. Darlington v. Ulph, 13 Q. B. 204, (66 E. C. L R 204,). 2s It is important, in practice, to take care that any reference iu the habendum to the date of the lease is correct. Where, as is fre- quently the case, the day upon which the lease is executed is different from that on which it is dated, a mistake in this respect may lead to considerable difficulty. For although deeds take effect from the time at which they are delivered, not from the day on which they are dated, if a reference is made in the lease to the day of the date — for instance, if the term is expressed to commence from the day of the date — its duration will be measured from that day, and not from the time at which the deed was actually executed. See Shep. Touchst. 108 ; Hatter v. Ash, cited in the text ; Doe d. Cox v. Day, 10 East. 427 ; Styles v. Wardle, 4 B. & C. 908, (10 E. C. L. R. 854,) ; Steele V. Mart, ib. 272, (10 E. C. L. R. 576,) ; Cooper v. Robinson, 10 M. & W. 694 ;* and Doe d. Darlington v. Ulph, 13 Q. B. 204, (66 E. C. L. R. 204,). If, however, the deed has no date, or an impossible date, as, for instance, the 30th February, and reference is made in it to the date, this word will be construed to refer to the delivery. Styles V. Wardle, uhi sup. And where a lease was dated on the 25th of March, 1783, and the premises were demised for thirty-five years from the 25th March " noio last past," but it appeared that the deed had not in fact been executed until after the 25th of March, 1783, it was held that the term did not begin from the 25th of March preceding the date of the deed, but from the 25th March, 1783. Steele v. Mart, uhi sup. This decision is consistent with the rule laid down in Clayton's Case, 5 Rep. 1, namely, that if the expression used in the lease is that the term is to commence " from henceforth," it shall be computed from the time of the delivery, not from the actual date. See also Bac. Ab. Leases (E.). 120 LANDLORD AND TENANT. r*«4l ^*^i'^^^' it ^^ed to be held that *cIifFerent con- structions were to be put on demises, from the date of the lease, and from the day of the date — that a lease from the date included the day of the date, but that a lease from the day of the date, excluded it. Hat- ter V. Ash, 1 Lord E,aym. 84. However, in Pugh v. Duke of Leeds, Cowp. 714, which is the chief case on this subject, it was decided, after full consideration, that the word from may be either inclusive or exclu- sive, according to the subject-matter, and that the Court will in each case put that sense upon it which will best effectuate what appears to have been the in- tention of the parties. And, therefore, in that case, a lease to commence from the day of the date ha\ing been made by the donee of a "power, which power was to grant leases in possession hut not in reversion, it was held to include the day of the date and to begin immedi- ately, for the Court thought that the lessor must have intended such a lease as he had power to grant, and he had no power to grant a lease to commence in futuro.(ci) (a) The doctrine of Pugh v. the Duke of Leeds, may be taken as the generally received doctrine of the American cases, at the present day. When time is to be computed from or after a certain day, that day is to be excluded in the computation, unless it appear that a different computation was intended ] so if time is to be com- puted from any act done, the day on which the act is done is to be excluded in the computation, whenever such exclusion will prevent an estoppel, or save a forfeiture. Wiggins v. Peters, 1 Met., 127 ; Ewing V. Bailey, 4 Scam., 420; Windsor v. China, 4 Greenl. 298; Weeks v. Hull, 19 Conn., 376; Cornell v. Moulton, 3 Denio, 12; Farnell v. Rogers, 4 Cush., 160; Lyle v. Williams, 15 S. & K, 135; Bigelow V. Wilson, 1 Pick., 485 ; Pyle v. Moulding, 7 J. J. 3Iarsh, 202 ; Jacobs v, Graham, 1 Black, Jr., 392 ; Rand v. Rand, 4 N. Ham., 267 ; Goswiler's Estate, 3 Penna., 200 : Blanchard v. Hil- THE HABENDUM. 121 The judgment of Lord Mansfield in that case is ex- ceedingly well worth your perusal, and you may read Hard, 11 Mass., 85 ; Woodbridge v. Brigham, 12 Mass., 403 ; Henry V. Joues, 8 Mass , 453 ; Lorent v. South Carolina Insurance Com- pany, 1 N. & M., 505; O'Connor v. Towns, 1 Texas, 107; Burr v. Lelais, 6 Texas, 76. In Maigs v. Anderson, a late case in Pennsylvania, not yet in the reports, but to be found 12th Legal Intelligencer, p. 238, in the num- ber for September 7th, 1855, it is decided that " a lease for one year, from the first day of April then next, for the rent of three hundred dollars, payable at the expiration of the term," expired at midnight, on the 31st of March. Judge Knox thus recites the facts, and pro- pounds the law of the case : "David Maigs died in the year 1847, seized in fee of certain real estate, which passed by his death to his children, eleven in number. On the 24th of February, 1848,' seven of the eleven heirs executed a lease of the farm in question to the defendant, Anderson, for one year from the first day of April then next, for the rent of three hundred dollars, payable at the expiration of the term ; the plaintiflF, George Maigs, was one of the seven who joined in the lease. By order of the Orphans' Court of Chester county, made upon the application of the administrator of David Maigs, this farm was sold on the 28th of October, 1848, and pur- chased by George Maigs, the plaintiff. One of the conditions of the sale was, that the deed should be made on the first day of April, 1849. The sale was confirmed and the deed made, but as the first of April came on Sunday, the deed was delivered the preceding Saturday, the 31st day of March, 1849. The defendant, as tenant, occupied the premises from the first day of April, 1848, until the first day of April, 1849." " It is impossible to examine this case without clearly discovering the intention to prevent the rent in controversy from passing to the purchaser. The title to the premises by the conditions of sale was to be retained until the lease had expired and the act of the adminis- trator, in delivering the deed the day before it could have been legally demanded, can make no difference in the case. It is argued for the plaintiff in error that at all events he was entitled to his conveyance, on the first day of April, and that inasmuch as the rent was not due until the day after he is the legal owner of it, this argument is based I 122 LANDLORD AND TENANT. it in connection with the more recent one of Askland V. Lutley, 9 A. & E. 879 (36 E. C. L. R. 312), in upon the supposition that the lease did not expire until the first of April, A. D., 1849, including the whole of that day, but this position cannot be sustained, the lease was from the first of April, A. D., 1848, for one year, the tenant took possession on the first clay of April, A. D. 1848, and at the close of the 31st day of March, he had occupied the premises for an entire year. The first day of April, 1849, was the commencement of another year, and on the morning of that day at any moment after 12 o'clock of the preceding night, the rent was due, and payable, for the terra had then expired. " It is undeniably true, that there has not been entire uniformity in the rules laid down by Courts, in reference to the computation of time. In Goswiler's Estate, 3 Penna. R., 200, it was held ' that whenever by a rule of Court or an act of the Legislature a given number of days are allowed to do an act, or it is said an act may be done within a given number of days, the day in which the rule is taken, or the decision made is excluded,' but in Thomas v. Afilick, 4 Harris, 14, it was said that the rule of the common law is to include the first day and exclude the last, and that this was the true rule ; admitting that ' Goswiler's Estate ' was not well considered — in Lyle v. Williams, 15 S. & Ft., 136, it is said 'that where the expressions are from the date, the rule seems to be that if a present interest is to commence from the date, the day of the date is excluded, but if they are used merely to fix 'a terminus from which to compute time the day is included," ' and it was accordingly held in that case that where a bond was dated on the 22nd day of July, 1818, payable in five years from the date a scire-facias quare executio non might issue on the 22nd of July, 1823. The diversity in the rule appears to have been caused by a desire to apply it so as not to work injustice. The parties to this transaction doubtless had in view the universal understanding of the country, that where one rents lands or tenements for a year from the first day of April, the tenant has the right to enter on the day named, and that his term ceases on the last day of March ensuing, any other construction would not only do violence to the customs and habits of the people, but would in the case before us, work manifest injustice, by giving to the plaintiff the income, and profits of an estate, for an entire year, anterior to the commencement of his title." THE HABENDUM. 123 which the Court of Queen's Bench declared the general rule with regard to the duration of leases for years, to be, that, generally speaking^ they last during the whole anniversary of the day from ivJiich they are gra^ited ; since, otherwise, the day on which the last quarter's rent is usually made payable *would be subse- r#oc-| quent to the expiration of the lease.^^ It must also be observed, while we are upon this part of the subject, that a lease may be so worded as to run from one date in point of computation^ and from another in point of interest. For instance, I may make a lease to hold for ten years from the 1st of January last, and it will begin in interest from the day of making, but in computation from last January; or I may even make a lease for ten years from the date, but not to commence till the expiration of a lease for five years now existing in the premises, and it will begin in computation from the date, but in interest from the expiration of the outstanding lease. See Enys v Don- nithorne, 2 Burr. 1190.'^' With regard to the duration of the term, it may be either for a number of years absolutely, or for a number of years determinable upon some contingency, such, for instance, as the expiration of a life or lives. In these cases care must be taken to avoid any mistake in using the particles and and or., for a lease for ninety-nine years, if A. and B. so long live, is determinable by the death either of A. or B. ; but a lease if A. or B. so long live, lasts till the death of the survivor of them. ^ The word " from " may be either exclusive or inclusive, accord- ing to the intention of the parties. It is now usually, but not neces- sarily, construed to be exclusive. See the judgment in Wilkinson v. Gaston, 9 Q. B. 137, (58 E. C. L. R. 137,). 2^ See the cases cited ante, p. 83, note 2^"* 124 LANDLORD AND TENANT. r*qp-i Lord Vaux's *Case, Cro. Eliz. 269.^^ Some- times the lease is for a certain number of years, but determinable sooner, at the election of the parties or one of them ; and, of course, if it be specified which is to have the option, no difficulty on the subject can arise. Where that is not specified, but a lease is granted, say for seven, fourteen, or twenty-one years, without stating which party is to have the option of determining it, it was once thought that either party would have a right to put an eiid to it at the periods specified. (See Goodright v. Richardson, 3 T. E.. 462.) But it has since been held, both at law and in equity, that the lessee only has the option, Dann v. Spurrier, 3 B. & P. 399; Price v. Dyer, 17 Ves. 356; Doe v. Dixon, 9 East, 15, in which Lord Ellenborough states that these decisions proceed upon the general principle that where the words of a grant are doubtful, they must be construed most strongly in favor of the grantee.^" I will resume this subject in the next lecture. "^ For the word "or" in its ordinary and proper sense is a dis- junctive particle, and ought to be so construed unless there be some- thing in the context to give it a different meaning. See the judgments in Elliott v. Turner, 2 C B. 461, (52 E. C. L. R. 461,) ; and Mortimer v. Hartley, 6 Exch. 60. 3° Where, as is usually the case, the lease specifies that the option may be exercised by either the lessor or the lessee, either of them may of course determine the lease. See Goodright d. Nicholls v. Mark, 4 M. & S. 30. POINTS RELATING TO TENANCIES. 125 *LECTUilE IV. [*87] Points relating to Creation OF Tenancy (continued) 87 Usual Incidents to Demises (continued) 88 The Reddendum 88 Nature of Eent 88 Dififerent Kinds of Rent .... 89 Rent-service 89 Distinction between Reser- vations and Exceptions. 91 General Rule that Rent can- not issue out of an incor- poreal Hereditament 91 Exceptions to Rule 92 Rent must be reserved to Lessor 94 The Covenants 94 For Payment of Rent 96 Other usual Covenants 97 To pay Taxes and Tithe Rent-Charge 98 To insure 100 Not to carry on particular Trades 101 Exceptions out of Demise 103 Provisoes and Conditions 105 Implied Conditions 105 Conditions precedent . 106 Conditions subsequent 107 Powers of Re-entry 108 Waiver of Forfeiture 109 By Receipt of Rent, &c 109 Distinction between Leases void and voidable only Ill Distinction now overruled 112 Condition not to assign 115 How broken 115 Effect of a License to assign. . . 117 Distinction between Conditions not to assign and not to underlet 118 Re-entry upon Non-payment of Rent 119 At common Law 119 Under the 4 Geo. 2, c. 28, and the 15 & 16 Vict. c. 76 120 We were considering, on the last evening, the usual formal component parts of a lease under seal, namely :- — 1st. The Premises. 2ndly. The Habendum. 3rdly. The Reddendum. *4thly. The Covenants. 5thly. Ayiy Exceptions, Provisoes, or Conditions hy which the Contract may chance to he qualified. We have already spoken of the first two of these [*88] 126 LANDLORD AND TENANT. five subjects, namely, the 'premises^ and the Tiahenclum. We have now to dispose of the remaining three in order. With regard to the reddendum^ it is the reservation of a rent to be paid to the lessor, as a compensation for his relinquishing the thing demised to the lessee. This rent, which is derived from the Latin word Q-edditus, signifying a return, is defined by Chief Baron Gilbert, in his Treatise on Bents, page 9, to be " an aQinical returii made hy the tenant either in lahour, money, or provisions, in retribution for the land that pa^sses ;" from which you will observe that though a rent is usually reserved in money, it need not be so ; or even in those other things mentioned by Gilbert, but which are only given by him as examples. It may, as is said by Lord Coke (1 Inst. 142 a), consist of spurs, horses, or other things of that nature; or of services or manual labor, as, to plough a certain number of acres for the landlord yearly.^ r*SQl *^ ^^y ^^ ^yQ^ here mention, though you are probably all fully aware of it, that there are three descriptions of rent known to the law, entitled, rent-sermce, rent-charge, and rent-seek. The first being a rent reserved upon a grant or lease of lands, as inci- dental to their tenure ; the second, a rent granted out of lands by the owner to some other person, with a ^ The services of cleaning a parish church, and of ringing a church bell at certain hours, without any pecuniary render, are rents for which a distress may be made. Doe d. Edney v. Beuham, 7 Q. B. 976, (53 E. C. L. R. 976,) and see Doe d. Robinson v. Hinde, 2 M. & Rob. 441. So a royalty payable to a landlord upon the bricks which are made out of a brickfield, is a rent, although it is not paid for the renewing produce of the land, but for portions of the land itself, which is gradually exhausted by the working. Reg. v. Westbrook, 10 Q. B. 178, (59 E. C. L. R. 178,). THE REDDENDUM. 127 clause of distress ; and the third, a rent without power of distress.^ A^ rent service, originally, might have been reserved upon a conveyance of lands from one man *to r*QA-i another in fee-simple, or for any less estate, and all quit-rents^ as they are called at the present day, were originally rents of this description ; but the statute of Quia Emptores [18 Edw. 1, c. 1] having, as I stated in the first Lecture,^ prohibited tenancies in fee-simple from being any longer created between subjects, and 2 See Bac. Ab. Rent (A.). A rent-service is so called, because it has some corporeal service incident to it, as, at the least fealty, Co. Litt. 87 b ; and a re7it-cliarge, because the land is charged with a distress for its payment, Co. Litt. 143 b. A rent-seek is redditus siccus, or a barren rent reserved without any clause of distress. A fee-farm rent is a rent reserved on a grant in fee. This term appears to relate to the perpetuity of the rent, not to its amount ; and it is probably only properly applicable to rents-service. See Co. Litt. 143, b, note (5), and The Governors of Christ's Hosp. v. Harrild, 2 M. & Gr. 713, note, (40 E. C. L. R. 820,). Another meaning is attributed to the expression in Co. Litt. 143 b, and in the judgment and notes in Bx-adbury v. Wright, 2 Dougl. 624. The right to distrain for rents-seek was given by the 4 Geo. 2, c. 28, s. 5, by which it was enacted that " from and after the 24th day of June, 1731, all and every person or persons, bodies politic and corporate, shall and may have the like remedy by distress, and by impounding and selling the same, in cases of rents-seek, rents of assize, and chief rents, which have been duly answered or paid for the space of three years within the space of twenty years before the first day of this present session of Parliament, or shall be hereafter created, as in case of rent reserved upon lease, any law or usage to the contrary notwithstanding." The three years mentioned in the act during which rents-seek existing at the time of its passing must have been paid, need not be consecutive. Musgrave v. Emmerson, 10 Q. B. 326, (59 E. C. L. R. 326,). A fee-farm rent may be distrained for, if brought within this section, ih. and Bradbury v. Wright, uhi sup. ^ See ante, p. 5. 128 LANDLORD AND TENANT. directed that, upon a grant of land in fee-simple, the grantee should hold not of the grantor, but of the person of whom the grantor himself held, it has resi^lted jfirom this statute, that a rent-service cannot now be reserved upon a grant of lands from one subject to another in fee-simple ; (a) since a rent-service is inci- dental to a tenure, and cannot exist where there is no tenure, and there is now no tenure between the grantee under such a conveyance and the grantor.* However, though a rent-service cannot now be reserved upon a grant in fee-simple, it may upon the grant of any less estate ; and, of course, may be so upon a lease, and accordingly every rent reserved upon a lease is a rent- service^ and is accompanied by that which is the inci- dent of every rent-service, namely, a right on the part r*qn of the lessor to distrain for it. Now, *with re- gard to the reddendum^ or reservation of this rent, there are three things to be observed concerning it. First. It must always be of something issuing out of the thing demised, and differing from it in nature, and not part of the thing itself,^ for that would not be a ^ See Bac. Ab. Rent (A) 1. A grant, in fee, reserving a perpetual rent, with an express power of distress, would however be good as a rent-charge. See Co. Litt. 143 b, note (5), and the judgment of Mr. Justice BuUer in Bradbury v. V/right, 2 Dougl. 624. And if such a rent were created at the present day without a power of dis- tress, it would, apparently, be a rent-seek, and as such attended with the right of distress under the 4 Geo. 2, c. 28. See 1 Selw. N. P. 661, note (3), (10th Edit ) * A reservation, therefore, to the owner of the land of its vesture or herbage would not be good. Co. Litt. 142 a. (a) Not so in Pennsylvania. The statute Quia Emptores having been held under the words of the charter not to be in force in that State. Ingersoll v. Sergeant, 1 Wh. 338. THE REDDENDUM. 129 reservation but an exception. Lord Coke sliows the dis- tinction between a reservation and an exception very clearly in the 1 Inst. 47 a. " Note" he says, " a diver- sity between an exception, which is ever of part of the thing granted, and a reservation which is always of a thing not in esse, but newly created or reserved out of the land or tenement demised." In the case of Doe d. Douglas V. Lock, 2 A. & E. 705, (29 E. C. L. R 325,) the whole laAV on this subject is collected, and you will find it elaborately explained in the judgment of the Coiu't, at p. 743, and the following pages.'^(rt) 6 See also Wickham v. Hawker, 7 M. & W. 63 ;* The Durham and Sunderland Kailway Co. v. Walker, 2 Q. B. 940, (42 E. C. L. R. 987,) ; and Pannell v. Mill, 3 C. B. 625, (54 E. C. L. R. 625,). («) Nothing is more common in America, than to make the rent a certain portion of the annual produce of the farm, — as for instance one-half the grain, to be delivered in the bushel, and one-half the hay and straw, &c., and it has always been held that these are good reser- vations of rent, in kind, and that they may be distrained for. It is considered the fairest mode of letting, as well for the landlord as the tenant. The landlord has the advantage of a prosperous harvest, and the tenant escapes the heavy loss, which a year of scarcity might entail upon him. Stewart v. Dougherty, 9 Johns., 108 ; Fry v. Jones, 2 Rawle, 11; Rhinehart v. Olwine, 5 W. & S., 157, Jones v. Gundrim, 3 W. & S., 531. But in Bowzer v. Scott, 8 Blackf., 86 ; it is said that a rent payable in kind, cannot be distrained for. This is commonly called letting land on the shares, a form of ex- pression which seems to be sufficiently accurate, and quite apt for the expression of the idea intended to be conveyed. Though Judge Woodworth, in De Mott and others against Hageman, 8 Cowan, 220, seems to regard the expression as synonymous with what is called by other judges cropping. A cropper is one who is employed to raise the single crop, and who is to be paid for his labor by a certain portion of the fruits; he is held to be a servant, not a tenant. The possession is in the landlord, who alone can bring trespass, and the cropper and the landlord are tenants in common of the crop. But when the form of 9 130 LANDLORD AND TENANT. Secondly. The rent must be reserved out of some- thing to which the lessor may have recourse to distrain ; the contract is a lease, aud the lessee is put in possession of the farm, either for a year, or from year to year, or for a term of years, ren- dering a certain portion of the produce as rent, be is a tenant — he alone can bring trespass, and the landlord has no interest in the crops until they are severed and delivered to him. De Mott, et al., r. Hageman, 8 Cow., 220 ; Tattle r. Bebee, 8 Johns., 152 ; Fry v. Jones, 2 Rawle, 11; Khinehart v. Olwine, 5 W. & S., 157; Haywood v. Miller, 3 Hill, 90; Graham c Houston, 4 Dev., 332; Doremus v. Howard, 3 Zab., 890. These distinctions are as old as Hare, and three others, v. Celey, Cro. Eliz., 143. Hare was seized in fee of sixteen acres, andeas exposuit to the other three to sow at halves. Scil.: That he should find one- half the seed, and the other three the other half, and should manure the land, and that Hare should have one moiety of the grain there growing, when it was reaped, and the others the other moiety; and after the land was sown A. entered by command of the defendant, and spoiled a great part of the corn. Upon which trespass was brought. Quaere: If this exposing the land to half be not a lease of the land, so as the action was to be brought in the name of Hare and the three ? And admitting it to be a lease, if Hare be not tenant in common with them of the corn ; for the moiety of that which was sown was his. The Court held it no lease of the land, but otherwise if it be for two or three crops ; and therefore as to breaking of the close, Hare only was to bring the action; and as to spoiling the corn, they ought to join, being tenants in common. In several recent cases, Putnam r. Wise, 1 Hill, 235; Smyth v. Taukersley, 20 Ala., 212; Dinehart r. Wilson, 15 Barb., 595; the decision in Stewart r. Doughty, 9 John, 108 ; Overseers v. Overseers, 14 Johns., 365; Jackson v. Bromnell, 1 Johns., 267, has been reconsidered. It was held in those cases that when the contract is in form a lease, reserving a portion of the crops as rent, it is a technical lease, and the title to the whole of the crops is in the lessee until he delivers to the lessor his portion in payment of his rent. " And these are the positions," say the Court, in Dinehart v. Wilson, ^'overruled in Putnam v. Wise. In the latter case it is laid THE REDDENDUM. 131 thus a rent cannot issue out of a right of common, or out of another rent, or in fact out of any incorporeal hereditament. It is very true that, as a contract, such a reservation may bind the lessee ; thus, if I were to demise a right of common to A. B., yielding and pay- ing £50 a year to me, this £50 a year would not be a rent, *because a rent cannot issue out of a r^qn-i right of common ; but it w^ould nevertheless be a sum due to me by A. B, by virtue of his contract, and for which, if unpaid, I might maintain an action of debt against him. See Jewel's Case, 5 Co. 3.^ ^ See Co. Litt. 47 a ; Bac. Ab Rent (B) ; Yin. Ab. Reservation (B). Incorporeal hereditaments are usually capable of being demised, but a rent, properly speaking, cannot issue out of them ; uor can a rent issue out of goods. See the 3rd Resolution in Spencer's Case, 5 Kep. 17 J Newman v. Anderton, 2 N. R. 224 ; and Salmon v. Matthews, 8 M. & W. .827.* It is a general rule that when a rent is nominally reserved out of two things, one of which is capable of down as the true test, that if there is any provision in the contract for dividing the products of the premises, then the parties become tenants in common of the crops. If the occupier or cultivator is to pay a certain quantity of grain or other article, as a certain number of bushels of grain, or tons of hay, &c., &c., then he is a tenant, and the grain or hay is rent, and the landlord has no interest or title until they are delivered to him as rent." Dockham v. Parker, 9 Greenl., lo7. See also Caswell v. Dietrich, 15 Wend., 379. These views it is believed are most in accordance with the under- standing of landlords and tenants, when property is let on shares The tenant in such cases never supposes that he has a right to sell the whole crop as his own, nor docs the landlord conceive for a moment that an execution against his tenant may sell the whole crop. The sheriff who, on an execution against either landlord or tenant, when the premises are let to the shares, sells the whole crop, is liable in trespas.s, according to Dinohart v. Wilson. Where the contract is in form a lease, the tenancy in common, spoken of in Putman v. Wise, is a tenancy in common of the crops, not of the premises. 132 LANDLORD A Js" D T E X A X T. However, though the general rule is, as I have stated it, that a rent cannot issue out of an incorporeal heredita- ment, yet there are one or two exceptions to this rule, of w^hich it will be proper to take notice. In the first place, it is laid dowii in Bac. Ah. Rent (B), where the authorities uipon the subject are col- r*qq-i lected, that though a reversion or remainder *is an incorporeal hereditament, so that it can only pass by grant, yet a rent reserved upon a lease of it is good, for although the lessor cannot distrain during the continuance of the particular estate in a third party, yet there is a possibility of his doing so on the determination of that particular estate. Again, though tithes are incorporeal hereditaments, and therefore at common law no rent could have been reserved out of them, yet stat. 5 Geo. 3, c. 17, directs that leases by ecclesiastical persons of tithes for three lives, or twenty- one years, shall be as good as if of land, and that an action of debt shall lie for the rent reserved. And it supporting a rent, and the other not, it will be taken to issue wholly out of the former. See the cases last cited j Vin. Ab. Reservation {0) ; Doubitofte v. Curteene, Cro. Jac. 452 ; Emott v. Cole, Cro- Eliz. 255; and Farewell v. Dickenson, 6 B. & C. 251, (13 E. C. L. R. 124,). But although the rent issues in these cases ont of the corporeal hereditament only in point of remedy, it is considered to issue out of both in point of render ; so that where it is not appor- tioned between the two subjects of demise, but is reserved generally, and the contract under which it is reserved, not being under seal, cannot operate as a demise of the incorporeal hereditament, no rent at all is recoverable. See the argument in the Dean of Y>"indsor v. Gover, 2 Saund 303 ; Gardiner v. Williamson, 2 B. & Ad. 336, (22 E. C. L. R. 145,) ; Bird v. Higginson, 2 A. & E. 696 ; (29 E. C. L. R. 321,) ; S. C. 6 A. & E. 824, and Meggison v. Lady Glamis, 7 Exch. 685. Upon the same principle, where premises are demised at an entire rent, and a portion of them cannot be legally let, the whole demise is void. See Doe d. Griffiths v. Lloyd, 3 Esp. 78. THE REDDENDUM. 133 may admit of question, whether the same effect be not produced on tithes in the hands of lay impropriators, by the construction of stat. 32 Hen. 8, c. 7, sec. 7, which put them on the same footing as lands in many respects, and in particular with regard to the remedies for their recovery.^ Lastly, the Queen, if she think proper, may r#Q_(-i *reserve a rent, properly so called, out of an in- corporeal hereditament, the reason for which is, that she may, by virtue of her prerogative, distrain on all her tenants' lands wherever situated ; whereas a sub- ject can only distrain upon the land demised.^ The third point to be observed with regard to the reddendum^ is that the rent must be reserved to the lessor himself^ not to a third party. The reason of this is, that the rent is looked on as a compensation for the land, and therefore ought to be reserved to the person who would have had the land if it had not been de- mised ; and accordingly it is laid down by Littleton, * Since the Tithe Commutation Acts, leases of tithes cannot occur. See the 6 & 7 Wm. 4, c. 71, which has been amended and extended by numerous later acts. It was provided by s. 88 of this statute, that it should be lawful for any lessee being in the occupation of tithes commuted under the act, to surrender his lease so far as related to the tithes, subject to any compensation to the tenant for the loss of the tithes, and to the landlord for the non-fulfilment of any conditions contained in the lease, and to such a deduction from the rent payable in respect of any other hereditaments included in the lease, as might be fixed by the tithe commissioners. It has been held that a lessee of tithes who does not avail himself of this section, is still liable upon his covenant to pay rent, although the tithes have been commuted for a rent charge under these acts. Tasker v. Bull- man, 3 Exch. 351. ^ Co. Litt. -47 a; Bac. Ab. Rent (B) ; and see as to the distinc- tions which exist between the grants of the Crown and those of subjects, Knight's Case, 5 Hep. 54. 134 LANDLORD AND TENANT. sec. 346, " That no rent-service can be reserved upon any feoffment, gift, or lease, to any person but the feoffor, donor, or lessor, or their heirs, and in no manner to a stranger." Thus in Gates v. Frith, Hob. 130, where a man made a lease for years of land, to begin after his own death, rendering rent to his son, the rent was held to be improperly reserved, although it turned out that his son was heir, and would have been en- titled to the rent had it been reserved in proper form, namely, to the heirs of the lessor}^ ^° The lease in this case appears to have been made by the father and the son, and the term was to commence after the death of the father. See the case ; see also Doe d. Barber v. Lawrence, 4 Taunt. 23. The words of Littleton, in s. 346, are " that no rent, [ichicJi is, pro'perlij said, a reni^ may be reserved, &c., but only to the feoffor, or to the donor, or to the lessor, or to their heirs, and in no manner it may be reserved to any strange person." It would seem that, where the reservation is to a stranger, although the payment reserved is not, properly speaking, a rent, and cannot be distrained for, such a reservation is binding as a contract. See Jewel's Case, 5 Rep. 3. Another requisite to a rent, properly so called, is that the reservation should be certain. It is, however, sufficient if the amount, although not actually fixed in the reservation, is ascertainable by it. Co. Litt. 142 a. Lord Coke lays down this rule in the fol- lowing terms : <' It is a maxim in law, that no distress can be taken for any services that are not put into a certainty, nor can be reduced to any certainty ; for id cerium est quod certuni redd i potest. And yet in some cases there may be a certainty in uncertainty ; as a man may hold of his lord to shear all the sheep depasturing within the lord's manor, and this is certain enough, albeit the lord hath sometimes a greater number, -^nd sometimes a lesser number there ; and yet this uncertainty, being referred to the manor which is. certain, the lord may distrain for this uncertainty. Et sic de simili- hus." Co. Litt. 9G a. See also Parker v. Harris, 1 Salk. 262 ; Orby V. Mohun, 2 Vern. 531; Riseley i: Ryle, 11 M. & W. 16;* Daniel v. Gracie, 6 Q. B. 145, (51 E. C. L. 11. 145,) ; Reg. v. West- brook, 10 Q. B. 178, (59 E. C. L. R. 178,); Pollitt v. Forrest, 11 THE COVENANTS. 135 We now come, in the fourth place, to the *cove- r*q ^-i na7iis, which usually are inserted after the red- dendum. A covenant is the name which we give, when we find it contained in a deed, to that which, if we found it in an instrument not under seal, we should denominate a promise or agreement. No particidar words are necessary to constitute one. It is sufficient that they be such as show the intention of the party to bind himself to the performance of the matter stipu- lated for ; thus the reddendum, or clause reserving the rent, usually *runs in this way : — Yielding and r*Q^-i paying therefor, yearly and every year during the said term, unto the lessee (naming him), his execu- tors, administrators, or assigns, the clear yearly rent, or sum of so much of lawful money of Great Britain, pay- able quarterly (or half-yearly as the case may be), on such and such days (naming them). Now, besides this reddendum clause, there is, in every well-drawn lease by deed, an express covenant by the lessee to pay the rent reserved, but even if there were not, the words yielding and jjayimj in the reddendum^ would amount to a covenant, and an action of covenant could be main- tained upon them by the lessee, in case of non-payment, See Hellier v. Casbard, 1 Sid. 266; Giles v. Hooper, Carth. 135; Porter v. Swetnam, Styl. 406.^^ {a) Q. B. 949, (63 E. C. L. E. 949,). In Daniel v. Gracie, a marl pit and brick mine were demised, and the tenant agreed to pay so mucli a quarter for every yard of marl that he might get, and an additional sum of money for every thousand bricks that he might make. It was held that this reservation was sufficiently certain, and that the rent might be distrained for. " As is stated in the text, no particular form of words is requisite to (a) The words " yielding and paying " create an implied covenant. Rayer v. Ake, 3 Penna. R., 466; Webb v. Russel, 3 T. 11., 402; Mills V. Awriol, 4 T, 11., 98; Yyvyan v. Arthur, 1 Barn. Cress., 136 LANDLORD AND TENANT. r*q'*'-| *There are a variety of covenants usually in- serted in leases of particular species of property, constitute a covenant. This rule is illustrated by the following cases, to which it is not necessary to refer here in detail : — Courtney v. Taylor, 6 M. & Gr. 851, (46 E. C. L. R. 851,) ; Rigby v. The Great Western Railway Co., 14 M. & W. 811;* Wood v. The Cop- per Miner's Co., 7 C B. 90G, (62 E. C. L R. 906,) ; Rashleigh v. The South Eastern Railway Co., 10 C. B. 612, (70 E. C. L. R. 612,) ; and the Great Northern Railway Co. v. Harrison, 12 C. B. 576, (74 E. C. L. R. 576,). In Cannock v. Jones, 3 Exch. 233, a lease con- tained a covenant by the tenant to keep all the windows belonging to the demised premises, and certain other matters particularly men- tioned, in repair, " the farm-house and buildings being previously put in repair and kept in repair" by the landlord. It was held that these words constituted an absolute and independent covenant on the part of the landlord to put the farm house and buildings into repair. See also Neal v. Ratcliff, 15 Q. B. 916, (69 E. C. L. R. 916,) where a stipulation of this kind was held to be a condition precedent, not an independent covenant ; and ^ms^, Lect. VII. Covenants are to be construed according to the apparent intention of the parties, looking to the whole instrument and to the context {ex anieccdentibus et consequent thus) and according to the reasonable sense and construction of the v/ords. See Plowd. 829 ; and the judgment of Lord Ellen- borough in Tggulden v. May, 7 East. 241. So that a covenant is broken if the intention is not carried out, although it may be kept to 416; Iggalden v. May, 9 Ves., 330; Church v. Brown, 15 Ves., 264; Kunckle v. Wynick, 1 Dall., 307 ; Kimpton v. Walker, 9 Ves., 191 : Walker v. Physick, 5 Barr, 202. Rawle on Covenants for Title, 472, in note, where the following language is used : — " This question has practically some importance, as, if the covenant is to be deemed an express one, the lessee is still bound to his lessor for the rent, notwithstanding an assignment of the term, and acceptance of the rent by the lessee from the assignee (Mills v. Awriol) ; while, if the covenant is merely implied, the liability for rent is but co-extensive with the occupation, and the lessee is not liable for the rent accruing after his assignment to another, and the acceptance of the rent by his lessor from the latter." Walker v. Physick, 6 Barr, 202. THE COVENANTS. 137 and which will be found varied to suit the nature of the property, the length of the term, and other circum- stances/^ Thus, in the lease of a to^vii-house, besides the lessee's covenant to pay rent, you will fre- r#nQ-] quently find a covenant by him to pay *the pa- the letter. See Com. Dig. Covenant (E 2), where it is said, *' If a man acts contrary to the intention of his covenant, it shall be a breach, although he performs the words of his covenant 5 as if a man covenants to leave all the trees upon the land, and he cuts them down and leaves them there ; if a brewer covenants to deliver all his grains for the cattle of the plaintiff, and he puts hops to them before delivery." In Griffith v. Goodhaud, Sir T. Rayra, 464 ; Piatt on Gov. 55, et seq.; and Dormay v. Borradaile, 5 C. B. 380, (57 E. C. L. R. 380,) numerous instances are given of covenants which have received a larger interpretation than the words, taken literally, would. warrant. See also Borradaile v. Hunter, 5 M. & Gr. 639, (44 E. C. L. R. 335,) ; and Clift v. Schwabe, 3 C. B. 437, (54 E. C. L. R. 437,). Under the 8 & 9 Vic. c. 124, which has been already men- tioned, and the 8 & 9 Vic. c. 119, covenants framed according to the forms given by those statutes have, in leases and conveyances made in pursuance of them, a peculiar force and meaning. ^2 It may be convenient to mention here, that the non-execution of a lease by the lessor affords an answer to any action on those cove- nants on the part of the lessee, which depend on the interest intended to be granted by the lease, and which are made because the covenan- tor has that interest : such, for instance, as covenants to repair, or to pay rent. See the judgment in Pitman v. Woodbury, 3 Exch. 12 ; and Swatman v. Ambler, 8 Exch, 72 ; see also Aveline v. Whisson, 4 M. & Gr. 801, (43 E. C. L. R. 414,) ; and Cooch v. Goodman, 2 Q. B. 580, (42 E. C. L. R. 817,). But a covenantee in an ordinary indenture, who is a party to it, (and since the 8 & 9 Vic. c. 106, s. 5, it would seem even if he is not a party, provided the covenant respects any tenements or hereditaments), may sue the covenantor although the former have not executed the deed. And this is so even where the deed contains cross covenants on the part of the covenantee, which are stated to be the consideration for the covenants on the part of the covenantor. See Morgan v. I'ike, 14 C. B. 473 ; and the judgment in Pitman v. Woodbury, 3 Exch. 12. 138 LANDLORD AND TENANT. ["*99] risli rates and parliamentary taxes/^(a) to *keep ^•^ No mention is made in the later portion of these lectures of covenants to pay taxes, so that it may be convenient to call attention here to some of the decisions upon this subject. A covenant to pay a rent charge without deducting any taxes, extends to subsequently imposed taxes of the same nature as those in existence at the time of the making of the covenant, but not to taxes of a different nature. Brewster i: Kitchell, 1 Salk. 198 ; S. C. 1 Lord Raym. 317. Where a tenant covenanted to pay the rent " without any deduction, defalca- tion, or abatement for or in any respect whatsoever," it was held that he was liable to pay the land tax. Bradbury v. Wright, 2 Dougl. 624 • see also Amfield v. White, Ry. & Moo. 246, (21 E. C. L. K. 743,). In Payne v. Burridge, 12 M. & W. 727,* a local act of par- liament authorised the commissioners appointed under it to pave certain footways, and directed that the costs of the works should be paid by the tenants or occupiers of the next adjoining houses. It also provided, that in default of payment the amount might be levied upon the tenants or occupiers by distress, and that they might deduct the costs so paid out of their rent. A tenant of one of the adjoining houses had covenanted with his landlord to pay his rent " free and clear from all manner of parliamentary, parochial, and other rates, taxes and assessments, deductions or abatements whatsoever." It was held that under this contract, the tenant was bound to bear the paving expenses. In another case where a tenant covenanted to pay <v A. 384, (7 E. C. L. R. 131,). 11 162 LANDLORD AND TENANT. tlie lessor^ that of the lessee, the suhject-matter of demise, and the general nature and ordinary terms of the demise itself I shall proceed in the next Lecture to the second prin- cipal head into which I divided the whole subject, com- prising those points which arise during the tenancy. {a) (a) Upon the general subject of the preceding chapter, the reader is referred to Judge Hare's note to Dumpor's case, in the first volume of the American edition of Smith's Leading Cases, p. 87. [*122] *LECTUEE V Points Relating to Continu- ance OF Tenancy 124 Rights of Landlord 124 As TO Payment of Rent 125 Time at which rent is pay- able 125 Mode of Payment 127 Rent a Debt of a high nature 128 Eifect of taking a Bill or Note in Payment 128 Amount of Payment 129 Deductions which Tenant is entitled to make 129 Land-Tax 133 Income-Tax 133 Tithe Rent-Charge 133 xipportionment 133 Remedies for enforcing Pay- ment OF Rent 136 By Action 138 Useand Oceu])ation 139 J? y Distress 141 What the Landlord may dis- train 141 (General Rule as to Chattels personal 141 Exceptions 142 Things absolutely protected. 142 Things conditionally pro- tected 149 Growing Crops 149 Where the Landlord may dis- train 152 General Rule 153 Exceptions 153 Distress on Goods fraudu- lently removed 154 Distress on Cattle on Com- mons, kc, belonging to Premises 156 You will probably bear in mind that I commenced these Lectures by enumerating the various sorts of tenancy known to the law, and giving a general outline of their nature and qualities. In the next Lecture, confining my attention to those of a degree inferior to RECAPITULATION. 1G3 freehold, and premising that it was not my intention to enter npon the consideration of any others, I divided the entire subject into four heads: the Jirsf, embracing points which *relate to the commencement of a j.^,^^-. tenancy; the second, those arising during its continuance ; and the third, tliose relating to its termi- nation. And it is obvious, that as every point arising upon any subject matter whatever must arise either at its commencement, during its continuance, or at its termi- nation, these three heads would have comprehended the entire subject, had it not been that both the parties to the relation of landlord and tenant are liable to be changed, namely, either by the assignment of the term, or that of the reversion, or by certain other means known to the law; and inasmuch as there are peculiar rules relating to such changes, and peculiar rights and liabilities arising out of them, it became necessary to add a fourth head, for the purpose of embracing the points consequent upon such a change of parties. Having made this division, our first stepAvas, to con- sider the first of the four heads into which the entire subject had thus been divided, that, namely, which em- braced the points relating to the commencement of a ten- ancy ; and this, again, naturally subdivided itself into four minor heads ; for, as in order to the creation of every tenancy there must be — 1st, a lessor ; 2ndly, a lessee; 3rdly, a siJjject matter of demise ; and 4thly, a demise; it became necessary to say something upon each of these four requisites. That which occupied most of our time was (you Avill remember) the demise ; for it was necessary to touch on the three different modes of demise, namely, hy deed, hy writing loithoat *seal, and hy i^roJ, and afterwards to say a few r*i 9 ^-i words upon the construction of tlie usual com- ponent parts of a formal lease, namely, the premises, the 164 LANDLORD AND TENANT. hahendum, the reddendum^ the covenants^ and the condi- tions or exceptio7is. With the consideration of these the last Lecture concluded. x\nd my reason for now recapitulating what has been done is, that I think it absolutely necessary, in treating so extensive a subject as the present, to adopt as clear an arrangement as possible of the various topics which it comprehends, so as to prevent them from confusing and conflicting with one another, and also to bear that arrangement con- stantly in mind, so as to be always aware what relation the particular topic which we are at any particular moment considering, bears to the entire subject of which it forms a part. Having, therefore, disposed of those points which relate to the commencement of the tenancy, we are about to enter upon those which arise during its continuance. And these, it is obvious, relate to the respective rights — 1st, of the landlord as against tlie tenant; 2ndly, of the tenant as against the landlord.(a) («) Another set of rights are those of the landlord against third persons. Serious injuries to the inheritance may be committed dur- ing the tenancy by strangers, and it is often a question how they are to be redressed or prevented. It is held that the owner of real estate in the possession of a lessee, other than at will, cannot maintain trespass for an injury to his reversionary interest. Lisnow v. Ritchie, 8 Pick., 235; Taylor v. Townsend, 8 Mass., 411, 415 ; Cannon v. Hatcher, 1 Hill, 2G0. Case is generally the proper action to be brought by the reversioner for injuries to the inheritance. It is the remedy for interference with water courses and ways, and the damage which may be occasioned by water falling from the eaves of another's house ; when the possession is in a tenant the declaration should state the fact, and allege the injury to the inheritance. Com. Dig., Tit. Act, Case Nuisance B., Jackson v. Pesked, 1 M. & S., 234; Alston v. Scales, 9 Ling., 3, (23 E. C. L. E , 460) ; Baxter r. Taylor, 4 B. & Adol., 72, (24 E. C. L. n., 41) ; Bell v. Tweutyman, 1 Adol & Ellis, N. S., 7(36, EIGHTS OF LANDLORDS. 165 Now, with regard to the rights of the landlord, as against his tenant, it is obvious that these must concern either the remuneration he is to receive for parting with the possession of his property, or the condition in which he is entitled to have that property preserved while it is out of his own power to interfere with it ; in other words, *his principal rights as against his tenant r#i Qr-i relate either to the payment of rent, or the j)er- formance of repairs. Now, in the first place, with regard to rent. I have already, while touching upon the reddendum clause in- serted in a formal lease, explained the nature of rent, and the difference between rent-services, rent-charges, and rents-sedi, of the first of which three descriptions are, as I stated, the rents reserved upon all leases for years.'^ The points which remain to be touched upon in this division of the subject are — 1st. With regard to the time at which the rent is payable. 2ndly. With regard to the mode of payment. 3rdly. With regard to the amount payable ; and, 4thly. With regard to the means of enforcing pay- ment. 1 Ante, p. 89. (41 E. C. L. R., 767) ; Tucker v. Newman, 11 Adol. & Ellis, 40, (39 E. C. L. R., 21) ; Egrement v. Pulman, 1 Moo. & Malk., 404, (22 E. C.L. R.,551)j Davis v. Jewett, 13 N. IL, 88; Sumner*;. Tileston, 7 Pick., 198; Ripka v. Sergeant, 7 "Watts & Ser., 9; Hale v. Oldroyd, 14 M. & W., 789;* Bellows v. Sackett, 15 Barb., 96. In one case, where the lease was of a factory moved by water power, it was held that the lessee took, by implication, all the right to use the water which the lessor had. But if more water was used than the lessor had a right to, and injury was done thereby to any one, the party injured must look for redress to the lessee and not to the lessor. Wyman v. Farrar, 35 Maine, 04. 166 LANDLORD AND TENANT. We will consider these four points in order. And with regard to the first, namely, the time at which the rent is payable. Properly speaking, the rent reserved upon a lease is not payable until the midnight of the day specified in the lease for payment of it.(«) Cutting V. Derby, 2 W. Bl. 1077, and the judgment in Leftley t\ Mills, 4 T. R. 170. Although, where it is necessary to make a demand of it in order to create a forfeiture by breach of such a condition of re-entry for non-payment of rent, as I described in the last Lecture, all the authorities agree that such demand must be P^,^P^ made *before sunset; see Duppa v. Mayo, 1 Wms. Saund. 287, and Tinckler v. Prentice, 4 Taunt. 549 ;"(6) for which anomaly they assign a singular and very primitive reason, namely, that the tenant may \m\e light to count the money. And the same rule prevails where it is necessary that the tenant should make a tender of the rent to prevent the forfeiture, which he must do where the proviso is so worded as to dispense with a formal demand on the part of the land- lord.^ For all other purposes, however, the rent be- comes due upon the midnight of the day on which it ^ See also the judgment in Haldane v. Johnson, 8 Exeh. 694. It is no answer to an action upon a covenant to pay rent (no particular place for the payment being mentioned), that "the tenant was on the demised premises fur half an hour before, aud continued there until the setting of the sun on the day on which the rent was payable, and was then ready to pay it if the landlord had been willing to accept it, but that no one came to receive it. For it is the duty of the cove- nantor to seek out the person to whom the money is to be paid, and to pay it, or tender it to him, on the appointed day. ^ See Duppa v. Mayo, cited above. (a) In a lease for a year, if no time is fixed for the payment of the rent, it is not payable until the end of the year. Menough's Appeal, 5 "\V. & S. 4.32 ; Boyd v. McCombs, 4 Barr, 148. See ante, note on page 121. {h) McCormick v. Connell, 6 S. & 11. 151. PAYMENT OF RENT. 167 was re.served payable ; and, therefore, if the landlord die before midnight of that day, the rent goes to his heir, as an incident to the reversion, (supposing it to be a reversion which descends,) not to his executor, who would have taken it, however, had the deceased survived midnight ; since, then, it would have been a de^t which, being personal property, would pass to the personal representative. Duppa v. Mayo, 1 Wms. Saund. 287; Clun's Case, 10 Co. 127.* *Secondly, as to the mode of 'paymerd. Of v^-^.^-i-i course, where payment is made in cash, no diffi- culty can arise on this part of the subject, and I need hardly mention that such a payment would be governed by the ordinary rules which prevail between debtor and creditor, namely, that if made to an authorized agent of the landlord, it would be as effectual as if made to the landlord himself;^ that a remittance by the post if authorized either expressly or by the previous usage of the parties, would be a sufficient payment ;^ and that ■* Rent is due and payable, in one sense, upon the morning of the day on which it is reserved; for, at common, law, if it was paid ou the morning of that day to a lessor, who died before the day was over, the payment was good as against the heir. See Clun's case, cited above, and Dibble v. Bowater, 2 E. & B. 564, (75 E. C. L. R. 564,), See also Lord Rockingham v. Penrice, 1 P. Wms. 177 ; a case which was decided before the statute of apportionment, the 11 Geo. 2, c. 19. In this case a lessor, who had made a lease under a power, died before sunset on (he rent day, and the tenant paid the rent on the same day. The Court held that this payment was good to discharge the tenant, but that the executor of the lessor was liable in equity, to account for the amount to the heir or remaiudcr-mau. See as to this case, 1 Williams on Executors, 702. ^ See Goodland v. Blewith, 1 Camp. 477 ; Owen v. Barrow, 1 N. R. 101; and Wilkinson v. Candlish, 5 Exch. 91. ^ See Warwick ^■. Noakcs, Peake, 67 a; and as to payment by giving or sending a cheque. Pearce v. Davis, 1 ]M. & Rob. 365; and Hough V. May, 4 A. & E. 954, (31 E. C. L. 11. 415,). 1G8 LANDLORD AND TENANT. the tenant would, like other debtors, have a right to tender a receipt for signature under stat. 43 Geo. 3, c. 126, s. 5.' In these respects the situation of landlord and tenant is the same as that of any other debtor and creditor, but there are certain peculiarities arising out of the peculiar nature of the demand for rent of which it will be proper to take notice. r*l 9m *E,ent is considered by the law as a demand of a very high nature, higher even than a de- mand upon a bond or other specialty, although, in case of death, it ranks as against the executor or admin- istrator, with specialty debts, and is entitled to be paid along with them, and before simple contracts. (a) See Thompson v. Thompson, 9 Price, 471.^ It follows from this, that if a bond be given for rent, the original de- mand mil not merge in the specialty,^ as you are pro- bably aware that any demand of an inferior degree would. The same principle applies where the landlord takes a bill of exchange or promissory note in respect of the rent due. You perhaps know that, if a bill or note, payable at a future day, be given on account of an ordinary simple contract demand,^*^ for instance, for ^ The stamps on receipts are now regulated by the 16 & 17 Vic. c. 59. ^ A debt for rent ranks as high as a specialty debt, whether the rent be reserved by lease in writing, or by parol, because the rent issues out of the realty. Willett r. Earle, 1 Yern. 490 ; Gage r. Acton Garth, 511. 9 See Buller's N. P. 182. •'^ Or, even if given on account of a judgment debt. Baker v. Walker, 14 M. & W. 405* (a) In Pennsylvania, in the distribution of a decedent's estate, rents not exceeding one year are preferred to all other claims except funeral expenses, medicine furnished, and medical attendance given during the last illness of the decedent, and servant's wages not exceeding one year. Act 24 Feb. 34, s. 21. PAYMENT OF RENT. 1G9 the price of goods sold and delivered, it will suspend the right to sue for the original demand until the tim(^ has arrived at which the bill or note w^as payable ; but it is otherwise wdiere such an instrument is given on account of rent, for that, being a debt of a superior de- gree, cannot be suspended by a security of an inferior class, and, therefore, if a landlord take a note at three mwdlis on account of rent, he may nevertheless distrain the next day if *he think proper. Davis v. r* 199-1 Gyde, 2 A. & E. 623, (29 E. C. L. E. 291,)."(«) Thirdly, with regard to the amount of payment. There are several payments in the nature of cross de- mands, which the tenant, for reasons arising out of his situation with regard to the land, is entitled to have " The right to distrain is not suspended by taking a security for the rent, even although it be under seal, such, for instance, as a bond. 1 Roll. Ab. DeU^ Extinguhlmient (A), pi. 2, p. 605; nor by an agreement to take interest on rent in arrear. Skerry v. Preston, 2 Chit. 245. In Parrot v. Anderson, 7 Exch. 93, a tenant who owed rent gave a bill of exchange on account of it to the agent of his landlord. The agent indorsed the bill over to a third person, and gave the landlord credit for the amount, as if the tenant had paid the rent in money. The agent paid the amount to the land- lord, and the latter afterwards distrained for the rent. The Court held upon these facts that it was a question for the jury whether the transaction amounted to a discount of the bill by the agent, in which case the rent was paid, and the distress was improper, or to a mere advance of the rent by the agent to the landlord, upon which suppo- sition he was still entitled to distrain. ♦ («) Snyder v. Kunkleman, 3 Penna., 490; Chipman v. Martin, 13 Johns., 240; Bantleon v. Smith, 2 Binney, 140; Gordon v. Correy, 5 Binney, 552; Denham v. Harris, 13 Alab., 465; Peters v. New- kirk, 6 Cow., 103; Baily ?;. Wright, 3 McCord, 484; Cornell v. Lamb, 20 Johns., 407 ; Price v. Limehou.se, 4 McCord, 544 ; Prin- tems V. Helfrid, 1 Nott & McCord, 187 ; Bailey v. Wright, 3 McCord, 484. 170 LANDLORD AND TENANT. deducted out of the amount of the rent, and considered as payment of so much of it. Thus where A. leases to B., and B. underlets to C, if B.'s rent falls into arrear, C. will be justified, in order to protect himself from A.'s dis- tress, in paying the arrears to A., and he will be allowed to treat those payments as payment of so much of his own rent to B. Taylor v. Zamira, 6 Taunt. 524, (1 E. C. L. R. 736,) ; Sapsford i^ Fletcher, 4 T. R. oil ; Exall v. Partridge, 8 T. R. 308 ; Johnson v. Jones, 9 A. & E. 809, (36 E. C. L. R. 293,).^^ The justice and good sense of this 12 See Wheeler v. Branscombe, 5 Q. B. 373, (48 E. C. L. R. 373,). The general rule is that the tenant can treat as a discharge of the rent only those payments to third parties, which are made in satis- faction of a charge on the land, or of a debt of the landlord. See Boodle V. Cambell, 7 M. & G. 386, (49 E. C L. R. 386,); Graham V. Allsopp, 3 Exch. 186; and Jones v. Morris, ib. 742. In the judgment in Graham v. Allsopp, the principle of the decisions men- tioned in the text is thus explained : — '<■ The immediate landlord is bound to protect his tenant from all paramount claims ; and when, therefore the tenant 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 made by the latter, he is consklered as having been author- ised hy the landlord so to afply 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-ofiF. And though in replevin a general set-oif cannot be plfeaded, 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," It would seem from the judgment in Jones v. Morris, ubi. sup., that the ground upon which the landlord is pre- sumed to authorise these payments is that he impliedly undertakes to protect the tenant against claims in respect of them. " The principle," said the Court in this case, " of the cases which have decided that a plaintiff in replevin may, in bar to an avowry for rent PAYMENT OF RENT. 171 *is obvious, for the hardship would be excessive r*i on-i on the tenant, if he were compelled to pay his in, arrear, plead payments made to a ground landlord, or other incum- brancer, having claims paramount to that of the immediate landlord making the distress, is that the comjyulsori/ pn^ment hy the tenant of ground rent or other like charge, ^*,s• in truth a partial eviction ; and the landlord is presumed to authorise the payment by the tenant of bis rent to those who have a claim on the land paramount to his own, and against which (as being a partial eviction) he is bound to protect the party holding under him. If, at the time of the demise, it had been expressly stipulated that the tenant might so apply his rent, or a competent part of it, no question could arise; and even though no such stipulation has been made in express terms, yet the law considers it as implied vin every contract of demise. Such pay- ments are, therefore, payments of rent." It appears from the same case that the proper plea, in order to take advantage of these pay- ments in replevin, is riens in arrere. A mere claim by a mortgagee of the premises to the rent does not full within the principle of these decisions, and cannot be set up by the tenant in answer to his land- lard's demand of the rent. See Wilton v. Duun, 17 Q. B. 294. In this case the action was brought for use and occupation. The defend- ant pleaded that the occupation was by leave of the plaintiff, who was mortgagor in possession, that after the occupation the mortgagee who was entitled to the land during the whole period of occupation gave notice to the defendant claiming the mesne profits, and that the latter was until this notice ready and willing to pay the plaintiff, and since it had been given had become liable to pay the mortgagee. The Court held that this plea afforded no defence at law ; although it might be that an actual payment to the mortgagee under the pres- sure of his claim would have been a defence. It must not be inferred from these cases that the action for muney paid will lie whenever one person discharges the debt of another. In order to maintain this action it must be shown that the money sought to be recovered was paid at the request either express or 'implied of the defendant. It is not indeed necessary that it sliould be paid in discharge of a deht of the defendant, but, unless this be the case, an actual request must be proved ; the law will not imply one. Where, however, the payment is on account of a debt due from the defendant no actual request is 172 LANDLORD AND TENANT. r*T^n ^^^^^ *rent in hard cash, and yet his goods were to remain hable to distress on, account of the r*l'^'>l i^^gl^ct *of his immediate lessor to pay that which was justly due to the head landlord. necessary, but it is sufficient if the circumstances under which it was made show that an implied request took place. See Grissell v. Rob- inson, 3 Bing. N. C. 10, (82 E. C. L. R. 15,) ; Pawle v. Gunn, 4 Bing. N. C. 445, (33 E. C L. R. 40G,) ; Lubbock v. Tribe, 3 M. & W. 607;* Brittain v. Lloyd, 14 M. &. W. 762 ;* Gumming v. Bed- borough, 15 M. & W. 438;* Pollock v. Stables, 12 Q. B. 765, (64 E. C. L. R. 765,) ; and Lewis v. Campbell, 8 C B. 541, (65 E. C. L. R. 541,). In Spencer v. Parry, 3 A. & E. 331, (30 E. C. L. R 166,) a tenant agreed with his landlord to pay some taxes, which by statute, were due from the landlord, but omitted to do so. The landlord was obliged to pay them, and afterwards sued the tenant for money paid to his use. It was held that the landlord could not sue in this form of action, since the money which he had paid had not been paid in discharge of any liability of the tenant, except that which arose from his special contract with the landlord. This appears to be a strong case, for the money was, at least as between the landlord and the tenant, the debt of the latter, and the circumstances might perhaps have been considered, consistently with the other decisions on this subject, to be sufficient to show that he impliedly requested the landlord to pay it. See also Brittain c Lloyd, 14 M. & W. 762 ;* where it was held that an auctioneer, who had been compelled to pay the auction duty on a sale of lands by auction, might recover the amount from his employer in this form of action. In Hunter v. Hunt, 1 C. B. 300, (50 E. C. L. R. 300,) several underlessees held separate portions of premises at distinct rents, the whole of which was held under one original lease at an entire rent, and one of them who was threatened with a distress by the assignee of the reversion on the original lease paid the whole of the rent. It was held that he could not recover from the oth6r underlessees as money paid the proportions of the rent which were due from them. It will be observed that in this case the underlessee who had paid the rent, and the other under- lessees whom he sued, were entire strangers so far as related to the sum in dispute, and it is obvious that there was, under the circum- stances no implied contract between them with respect to it. 1 PAYMENT OF RENT. 173 And there is no way of preventing this hardship from occnrring, except by allowing him to protect himself by paying the head landlord's demand, and setting it off against that on himself This he is therefore allowed to do, and it is not necessary to found his right to do so, that the head landlord should have actually threatened to distrain upon him ; it is enough that he has demanded payment, for a demand by one who has the power to distrain is treated as equivalent to a threat of distress, and to use the expressions of the Lord Chief Justice Best, in Carter r. Carter, 5 Bing. 406, (15 E. C. ]j. R. 643,) payment to such a person is no more voluntary on the part of the tenant than a donation would be voluntary which was made to a beggar who presented a pistol while he asked charity.^^ *Upon a similar footing stands the general j-^, oo-i land tax, where it has not been redeemed ; stat. 38 Geo. 3, c. 5, s, 17, enacting that the tenants of houses and lands rated to it shall pay the tax, and de- duct the amount from the rent due to their landlords. See on construction of this enactment, Stubbs v. Par- sons, 3 B. & A. 516, (5 E. C. L. R. 299,). [The landlord's property tax, and the tithe rent- charge are also payments in the nature of cross de- mands, which are practically thrown in the first instance on the tenant, and which he is entitled to have deducted from his rent. See the 5 Sc 6 Vic. c. 35 ; Schedule A, No. IV. llule 9 ; and the 6 and 7 Wm. 4, c. 71, s. 80.^-^] " See Valpy v. Manley, 1 C. B. 594, (50 E. C. L. R. 594,). ^* See as to how far the statutory rights of the parties in these respects may be varied by express contract, aii/e, pp. 99, 100, notes. As to deducting the property tax, see Franklin v. Carter, 1 C. B. 750, (50 E. C. L. R. 750.) If the tenant pays the tax, and omits to deduct it in his next payment of rent, he cannot afterwards 174 LANDLORD AND TENANT. Tliere is another case in which the landlord or his representative sometimes lays claim to a payment less in amount than the whole sum reserved. This happens where the landlord is the owner of a particular estate which determines before the arrival of the day prefixed for payment. Suppose, for instance, that A. being seised for life, demises to B. for ten years, and dies before the expiration of that term, and in the middle of a quarter ; or suppose that A., being seised for B.'s life, leases to C. for ten years, and C. dies during the middle of a quarter ; in these and such cases as these, r*l'^-n ^^^^ *question instantly arises, what is to be done with regard to the rent ? Is the landlord, on the one hand, to have the whole quarter's rent ; or is the tenant, on the other hand, to pay nothing 1 Or is there to be, as justice would seem to require, a rate- able apportionment ] Now, at common law, the tenant would in these cases have had the land without paying any rent at nil ; for it was a maxim that the claim for rent did not accrue day by day, as that for interest on a loan does, but accrued all at once on the arrival of the time prefixed for payment. x\nd, if, therefore, the landlord's interest determined previously to that day, it deter- mined also the lease derived out of it at a time when nothing was yet due, and, as the relation of landlord and tenant was at an end, nothing could subsequently become due,^^ In order to remedy this inconvenience, the stat 11 Geo. 2, c. 19, sec. 15, enacted that on the recover the amount as money paid to the use of his landlord. Gum- ming V. Bedborough, 15 M. & W. 438.* ^^ See Chin's Case, 10 Rep. 128 a, and Barwick v. Foster, Cro. Jac. 227. At common law apportionment took place when there was a division of the land into distinct portions, but never in respect of time. See Dumpor's Case, 4 Rep. 119; Viner Ab. Apportionment ; PAYMENT OF RENT. 175 death [before or on the day on which the rent was re- served] of any tenant for life who had made a lease which woukl determine on his death, the tenant should pay [the whole or] a rateable proportion of the rent re- served to the executor or administrator of the deceased, in respect of the time which had elapsed since the last rent-dav. *It Avas doubted whetlier this act r^ir.--, 1 looj would have comprised the case of a landlord who had made a lease of property of which he was seised for the life of another, and which lease conse- quently would determine on that other person's death, or the case of an underlease made out of a lease for years determinable upon lives. However, all difficulties of this sort are now removed, for, by stat. 4 & 5 AYm. 4, c. 22, all leases determinable on the life or lives of any persons whatever are brought within the provisions of the Act of George 2.^°(Z>) and the judgment of Mr. Justice Littledale, in Slack v. Sharpe, 8 A. ct E. 373, (35 E. C. L. R. 408,) («). 1*^ The words of s. 15 of the 11 Geo. 2, c. 19, are as follows :— " And whereas where any lessor or landlord, having only an estate for life in the lands, tenements, or hereditaments demised, happens to die before or on the day on which any rent is reserved, or made payable, such rent, or any part thereof, is not by law recoverable by the executors or administrators of such lessor or landlord ; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life; of which advantage hath been often taken by the under tenants, who thereby avoid paying anything fur the same ; for remedy whereof be it enacted by the authority aforesaid, that after the 24th day of June, 1738, where any tenant for life shall (o) Bank of Pennsylvania v. Wise, 3 W. 404 ; Cuthbert o. Kuhn, 8 Wh. 357 ; IngersoU v. Sergeant, 1 Wh. 337. (i) Similar enactments have been made in the United States; see in Pennsylvania, Act 24th Feb. 1834, § 2, Pamph. Laws, p. 73. 176 LANDLOKD AND TENANT. l-^, op-i *Fourtlily, with regard to the mode in iddcli jpayment of rent is e)iforced. happen to die before or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life shall and may in an action on the case, recover of and from such under-tenant or under-tenants of such lands, tenements, or hereditaments, if such tenant for life die on the day on which the same was made payable, the whole, or if before such day then a proportion of such rent according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in which the said rent was growing due as aforesaid, making all just allowances, or a proportionable part there- of, respectively." The 4 & 5 Wm. 4, c. 22, came into operation on the 16th of June, 1831. By s. 1 of this act (after reciting that portion of the 11 Geo. 2, c. 19, which relates to this subject) it is enacted that " rents reserved and made payable on any demise or lease of lands, tenements, or hereditaments which have been and shall be made, and which leases or demises determined or shall determine on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which such person was entitled to such here- ditaments, shall, as far as respects the rents reserved by such leases, and the recovery of a proportion thereof by the person granting the same, his or her executors or administrators (as the case may be), be considered as within the provisions of the said recited act. By s. 2. it is provided that after the passing of the act " all rents- service reserved on any lease by a tenant in fee or for any life inte- rest, or by any lease granted under any power (and which lease shall have been granted after the passing of this act), and all rents-charge, and other rents, annuities, pensions, dividends, moduses, composi- tions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable or coming due at fixed periods under any instrument that shall be executed after the passing of this act, or (being a will or testamentary instrument) that shall come into operation after the passing of this act, shall be apportioned so and in such manner that on the death of any person interested in any such rents, &c., or other payments, or in the estate, ENFORCING PAYMENT OF RENT. 177 *I have already mentioned, that, in leasees r.^. o^*--, made by deed, a condition enabling the lessor fund, office, or benefice from or in respect of which the same shall be issuing or derived, or on the determination by any other means what- soever of the interest of any such person, he or she, and his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, &c., and other payments, according to the time which shall have elapsed from the commencement or last period of p^iyment thereof respectively (as the case may be), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions in respect of charges on such rents &c., and other payments being made ; and that every such person, his or her executors, administrators, and assigns shall have such and the same remedies at law and in equity for recovering such appor- tioned parts of the said rents &c., and other payments, when 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 &c.,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 heredita- ments comprised therein, shall not be resorted to for such apportioned parts specifically as aforesaid ; but the entire rents of which such portions shall form a part shall be received and recovered by the person or persons who, if this act had not passed, would have been entitled to such entire rents; and such portions 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 s. 3, it is enacted that the act is not to apply "to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any descrip- tion." It will be observed, that under these statutes, where a lease determines on the death of the lessor (whether strictly tenant for life or not), or on the death of the person for whose life it was held, the remedy for recovering the fraction of rent which is made payable by the statutes in respect of the time elapsed since the last period of payment is given to the personal representative of the lessor, or to the lessor himself, as the case may be. There is, in these cases, no division of the rent between the lessor or his representative and the 12 1/5 L A N D L R D A N D T E N A X T. r*lSft1 ^^ *re-enter and put an end to the demise in case of the non-payment of rent or the non- « reversioner or remainder-man. Where, however, the lease continues after the death of the lessor, and the rent is apportioned between his representative and the heir or remainder-man, the entire rent must, if reserved on lands, &c., be recovered by the latter, who is bound to account with the personal representative for his share of it. Several cases have been decided upon the latter of these acts. It has been held to extend to Scotland. Fordyce v. Bridges, 1 H. of Lords' C. 1. It does not apply, it would seem, where the landlord has put an end to the relation of landlord and tenant by his own act. Oldershaw v. Holt, 12 A. & E. 590, (40 E. C. L. R. 295.) It will be observed, that it applies only in terms, to rents &c., made payable under instruments which are executed, or wills which- come into operation, after the passing of the act ; and it has been held, in consequence of these expressions, that it does not extend to rents which have not been reserved by an instrument in writing. In re. Markby, 4 Myl. & Cr. 484. Nor does it apply as between the per^ sonal representative and the heir of a tenant in fee. Browne v. Amyot, 3 Hare, 173 ; Beer v. Beer, 12 C. B. 60, (74 E. C. L. R. 60,). Its provisions have been extended to the rent-charge substi- tuted for tithes by the Tithe Commutation Acts. See the 6 &. 7 Wm. 4, c. 71, s. 86. See further as to the construction of these acts, Lowndes v. Earl of Stamford, 21 L. J., Q. B., 371 ; and Chitty's Statutes (by Welsby and Beavan), tit. Landlord and Tenant. A recent act, which has taken away in certain cases the right to emble- ments and has allowed to tenants an extended occupation as a compensation for the loss of this right, contains a provision for apportioning the rent in the cases to which it relates. See the 14 & 15 Vic. c. 25, s. 1, by which it is provided, that where the lease or tenancy of any farm or lands held by a tenant at rack-rent deter- mines by the death or cesser of the estate of any landlord entitled for his life or for any other uncertain interest, the tenant, instead of claiming emblements, is to continue to occupy until the end of the current year of the tenancy, and is then to give up the possession without any notice to quit. And the succeeding landlord or owner is entitled, under this statute, to recover from the tenant, in the same manner as the original landlord could have done if his interest ACTION. irJ performance of the covenants is usually inserted, and I endeavored to explain what is the practical effect of such a condition." Besides this, the landlord may- bring an action to recover the rent in arrear. This action, if the lease be by deed, may be either in the form of debt or covenant. If it be not by deed, the action of covenant will not lie, as that is always grounded on an instrument under seal: but *the j.;^.^ on-i landlord may bring an action of debt on simple contract, or of assumpsit for the use and occupation of the premises.^^ The remedies by debt and covenant existed at common law, but the action of assumpsit is given by stat. 11, Geo. '2, c. 19, s. 14, the effect of which you will find discussed in Selwyn's Nisi ^^ Prius, title Use and Occupation}'^ {a) *But the ^ -■ had continued, a ftiir proportion of the I'ent for the period between the death of the original landlord, or the cesser of his interest, and the giving up of the possession by the tenant. The Lands Clauses Consolidation Act, 1845, (8 & 9 Vic. c. 18,) also authorises the apportionment of the rent where part only of lands comprised in leases for term of years is taken for the purposes of the public undertakings to which this act relates; see s. 119. So, where pro- perty is required for the purposes of the Church Building Acts, which is included with other property in a lease or underlease, the rent, and any fine certain to be paid on renewal, may be apportioned, or wholly charged on the part of the property which is not required for these purposes. See the 17 & 18 Vic. c. 32. " See ante, p. 108. ^' Since the Common Law Procedure Act, 1852, (15 & 16 Vic. c. 76,) forms of action, although not abolished so far as they have any substantial existence, need not be mentioned in the writs by which actions are begun, and causes of action of different kinds (except eject- ment and replevin) may be joined in the same suit. See ss. 8 & 41. ^^ This statute enabled the landlord to bring an action on the case [a) See Mason v. Beldham, 3 Mod., 73. The 14th sect., 11 Geo., 2 ch. 19 is reported by the judges as in 180 LANDLORD AND TENANT. great and peculiar remedy of landlords is that by Distress. (a) for use and occupation, withoiTt being liable to be defeated by proof of a parol demise or agreement. It has been held by the Court of Queen's Bench that the action of debt for use and occupation lies at common law, and cannot be defeated by proof of a demise (not under seal) reserving a certain rent. Gibson v. Kirk, 1 Q. B. 850, (41 E. C. L. E.. 807,). In the forms of pleading, introduced by the Common Law Procedure Act, 1852, (15 & 16 Vic. c. 76,) the expressions which made a formal distinction between the actions of debt and assumpsit no longer occur. In order to support an action for use force in Pennsylvania. The action for use and occupation is a tran- sitory action, and can only be used when there is no lease or agree- ment under seal ; it is founded on contract, and does not apply to a case of tortious holding. Blume v. McClusken, 10 Watts, 380 ; West V. Cartledge, 5 Hill, 488; Codman v. Jenkins, 14 Mass. 93; Henwood v. Cheeseman, 3 Serg. & Ptawie, 500 ; Pott v. Lesher, 1 Yeates, 576; and the holding must be under a contract of demise, Kirtland v. Pounsett, 2 Taunt., 145; Wharton «;. Fitzgerald, 3 Dall., 503 ; Grant v. Gill, 2 Wh. 42; McFarland v. Watson, 3 Comst. 286 ; Gilhooley y. Washington, 4 Comst., 217; Bancroft v. Wardell, 13 Johns. 489. Actual occupation is not necessary to support the action; it is enough tiiat the defendant might have occupied had he not voluntarily abstained from it. McGunnagle v. Thornton, 10 S. & II. 251 ; Marseilles v. Kerr, 6 Wh. 504. But when the premises are occupied by an under-tenant of the lessee, the lessee is liable, as if he were the actual occupant. Moifat v. Smith, 4 Comst., 126. In the late case of Smith v. Eldridge, 15 Com. B., 236,- (80 Eng. Com. Law, 236,) where A. entered into an agreement (in writing) with B., to take certain premises at a certain yearly rent, the premises to be put in repair by B., and the rent not to be payable until the repairs were completed; A. by his tenant went into possession, and occupied the premises for six months, and then quitted, the stipulated repairs not having been done: — Held that B. was entitled to maintain an action for use and occupation, as upon an implied agreement to pay so much as the occupation might be reasonably worth. (a) See note to pages, 154, 101. DISTRESS. 181 *Distress is a right to take personal chattels r*i ^i-i found on the demised premises for the purpose ' and occupation, it is not sufficient that the land or premises of one person soould have been occupied by another; there must be an actual contract express or implied to pay for that occupation. See the judgments of Mr. Justice Buller in Birch v. Wright, 1 T. R. 387; and of Mr. Justice Bayley, in Hall v. Burgess, 5 B. & C. 333, (11 E. C. L. R. 485,). Any lengthy examination of the cases on this subject would be out of place here, because in dealing in the text with the remedies of the landlord, it is assumed that the rela- tion of landlord and tenant exists. It may be useful, however, to call attention to some of the later cases on this head. In Winter- bottom V. Ingham, 7 Q. B. 611, (53 E. C. L. B. 611,) the vendee of an estate was suffered to enter upon the premises and occupy them whilst the title was under investigation. The contract of sale xVas subsequently determined for want of title, and soon afterwards the purchaser gave up the possession. It was held that the vendor could not recover for the occupation during the time when the title was being investigated, although the jury found tliat the occupation had been beneficial. In Howard v. Shaw, 8 M. & W. 118,* an intending purchaser was let into possession under the contract of sale. The purchase afterwards went off, but the vendee kept possession of the premises for some time. The Court implied under these circum- stances a contract on the part of the vendee to pay for the occupation which took place subsequently to the time at which the contract of sale had gone off. It may perhaps be doubted whether the decision is altogether consistent with the other authorities on this subject; for the evidence showed that the vendee kept possession after the contract of sale was put an end to, not with any intention of paying for the occupation, but in order to indemnify himself against the loss of a portion of the deposit money which had not been returned to him. See also Kirtland v. Pounsett, 2 Taunt. 145, and Hull v. Vaughan, Price, 157. In Tew v. Jones, 13 M. & W. 12,* which was an action for use and occupation, it appeared that the defendant and another person had conveyed to tlie plaintiff an undivided moiety of several houses of which they were seised as devisees in trust under a will. The defendant had occupied one of these houses for a number of years before the sale, and he remained in possession after the 182 LANDLORD AND TENANT. of obtaining pxiyment of the rent arrear. It is a mode of proceeding immemorially known to the common law, and exists in several other cases not arising between landlord and tenant.'-" It is, however, with relation to • conveyance ; but as there was no evidence of any express contract between him and the plaintiff in respect of the occupation subse- quently to the sale, it was held that the action could not be maintained. In order to support this action under the statute, it is sufficient, if there is an actual holding on the part of the tenant, and he has the power to occupy the premises so far as depends on the landlord. lie is therefore liable, although the demised premises have been destroyed by fire. See Pindar v. Ainsley, cited in the judgment in Belfour v. Weston, 1 T. R. 312 ; Baker v. Holtpzaffell, 4 Taunt. 45 ; Leeds v. Cheetham, 1 Sim. 146 ; Izon v. Gorton, 5 Bing. N. C. 501, (35 E. C. L. R. 198,) ; Packer v. Gibbins, 1 Q. B. 421, (41 E. C. L. R. G07,) ; Surplice v. Farnsworth, 7 M. & Gr. 57t), (49 B. C. L. R. 576,) ; and ^jos?, Lecture VII. But an actual entry by the tenant is necessary. Edge v. Strafford, 1 Cr. & J. 391 ;* and Lowe v. Ptoss, 5 Exch. 553. In Smith v. Twoart, 2 M. & Gr. 841, (40 E. C. L. R. 883,) a person who had agreed to take a house sent in a servant to clean it, obtaining the key from the previous tenant, and also caused one of the rooms to be repaired. It was held in an action for use and occupation, that this was sufficient evidence of occupation to go to the jury. See also Towne v. D'Heinrich, 13 C. B. 892, (76 E. C. L. R. 892,). It is not necessary, however, that the tenant should occupy person all i/; it is sufficient if he allows another person to occupy. Bull v. Sibbs, 8 T. R. 327 ; Bertie v. Beaumont, 16 East. 33 ; Christy v. Tancred, 7 M. & W. 127 f 9 M. & W. 438 f 12 M. & W. 316;* and Waring v. King, 8 M. & AV. 571.* If a lease however is made to two persons, and one holds over at its expiration without the assent of the other, they are not both liable for use and occupation. Draper v. Crofts, 15 M. & W. 166.* It would seem that in an action for use and occupation the defendaut is entitled to show that the plaintiff's title expired after the demise, and before the period in respect of which the action is brought, although there has not been any eviction, and the possession has not been given up to the plaintiff. See Mountnoy v. Collier, 1 E. & B. 630, (72 E. C. L. R. 630,). ^0 See 1 Roll Ab. Distress (E.) (F.) ; 8 Rep. 41 a; 3 Black Cora. 7. DISTRESS. 183 those persons alone that I am to consider it, and in doing so it is necessary to enquire, 1st. What the landlord may distrain. 2ndly. Where he may distrain. 3rdly. When he may distrain. 4thly. Eoic he may distrain. 5thly. Vyhat he must do with the distress. 6thly. What are the tenants remedies if the distress be wrongful. Now, with regard to the first point, namely, lohat may the landlord distrain — the general rule is, that all personal chattels found on the premises may be dis- trained for rent, whether they be the chattels of the tenant or of a third person. Gilb. Distr. 33 ; 3 Black. Comm. 7. But, to this rule *there are some r^-iAni. exceptions, militating both ways, for there are several cases in which personal chattels found upon the demised premises are protected from the landlord's dis- tress, and there are others again in which things which are not personal chattels and therefore are not, accord- ing to the rule I have just stated (which is that of the common law and applies to personal chattels only), liable to distress, have been, by the enactments of par- ticular statutes, rendered distrainable. (a) [a) The distress is taken merely by way of pledge for the rent, originally there was no provision for its sale if not redeemed, — now, however, the distrainor is allowed after the lapse of a certain number of days, fixed .by statute, usually five, within which the tenant may replevy, to sell the distress and apply the proceeds towards the pay. ment of the rent. The original character of the distress occasioned an exception of all perishable articles. They could not be distrained because they could not be returned in the condition in which they were taken. Given v. Bland, 3 Blackford, 64 ; Morlcy v. Pencombe, 2 Exchequer, 101. In Pennsylvania by the Act of 1849, property to the value of 184 LANDLORD AND TENANT. There are, I have just said, certain cases in which personal chattels found on the demised premises are exempted from the landlord's distress. You will find those enumerated and classified in the celebrated case of Simpson v. Hartopp, Willes, 512,^^ where the Lord Chief Justice Willes, who is himself the reporter of the case, states in his judgment, that there are some things absolutely, some conditionally, privileged from being subjects of distress. Thus, in the first place, ^/la:- tures or things annexed to tlie freehold are absolutely privileged against it,"-^ a class upon which I need hardly 2^ See the notes to this case, 1 Smith's L. C. 191. 22 See Co. Litt. 47 b. In Gorton v. Falkner, 4 T. R. 567, Lord Kenyon lays down this rule in the following terms — '' We may lay it down as a general proposition, that at this time all movable chattels are distrainable, whatever may have been said in ancient times to restrain the distress on those things which partook of the profits of the soil. Now, not only living animals, but also inanimate things, may be dis- trained. But to this general proposition there are several exceptions ; some things are exempt from being distrained on account of the place, and others on account of the things themselves. The anvil in the smith's shop, and the millstone, are privileged, because they are affixed to the freehold ; and a temporary removal of the one or the other for the purpose stated in the argument (the purpose of cleaning them) is not sufficient to destroy that privilege." Another reason why fixtures are not distrainable is, that as they cannot be severed without injury, it is not possible to restore them in the same condition as when they were seized ; and, at common law, a distress being a mere pledge, nothing could be distrained which could not be returned in the same plight; Termes de la Ley, Distress, 69 a; Co. Litt. 47 a; a rule which is still in force, subject to some statutory exceptions as to growing crops and matters of this nature. Morley V. Pincombe, 2 Exch. 101. It is also explained in the judgment of three hundred dollars, exclusive of all wearing apparel of the de- fendant and his family, and all bibles and school books in use in the family is exempted from levy and sale on execution, or by distress for rent.— Act 9th April, 1849. § 1, Pam. Law, p. 533. DISTRESS. 185 liave observed, since I had confined the description of things liable to be distrained to chattels personal. It the Court of Exchequer, in Hellawell v. Eastwood, 6 Exch. 311, that what is affixed to the freehold becoraes part of the thing demised, and the nature of a distress is not to resume part of the thing itself for the rent, but only the inducta et illata upon the soil or house. The following cases will show the application of the rule that fixtures are not distrainable. In Niblet v. Smith, 4 T. R. 504, it was held that a lime-kiln affixed to the freehold could not be distrained. Fix- tures, such as kitchen ranges, stoves, coppers, and grates are not distrainable, although they may be removed by the tenant during the term. Darby v. Harris, 1 Q. B. 895, (41 E. C. L. R. 828,). In Wiltshear v. Cottrell, 1 E. & B. 674, (72 E. C. L. R. 674,) it was held that a granary, resting by its mere weight upon staddles built into the land, was not a fixture within the meaning of a deed by which all the fixtures appertaining to a farm were conveyed. In many of the cases on this subject, questions have arisen as to the degree of annexation which is necessary in order to bring particular articles within the rule which exempts fixtures from distress. In Duck V. Braddyll, M'Cl. 217, it was doubted whether machinery bolted to the floor of a factory was distrainable. In Trappes v. Harter, 2 Cr. & M. 177,* Lord Lyndhurst said : << The screwing of a stocking-frame to the floor to keep it steady would not make it a fixture." The judgment of the Court of Exchequer, in Hellawell v. Eastwood, 6 Exch. 2D5, throws great light on this subject. In this case a por- tion of some machinery used for the purpose of spinning cotton was fixed by screws to the wooden floor of a mill, and another part of it was fastened by screws sunk into holes in the stone flooring, secured by molten lead poured into them. It was held that this machinery was distrainable for rent. In delivering the judgment of the Court, Baron Parke said, in reference to the question whether the machines, when fixed, were parcel of the freehold : " This is a question of fact depending on the circumstances of each case, and principally on two considerations : first, the mode of annexation to the soil or fabric of the house, and the extent to which it is united to them ; whether it can easily be removed, inteyrf', salve, el commode or not, without injury to itself or the fabric of the building; secondly, on the object and purpose of the annexation ; whether it was for the 186 LANDLORD AND TENANT. r#i 4 o-i iiiay, however, be -worth *while to remark a dif ference which exists in this respect between permanent and substantial improvement of the dwelling, in the language of the Civil Law, perpetui usiis causa, or in that of the Year Book, poHr nn profit de V inheritance (20 Hen. 7, 13), or merely for a temporary purpose, or the more complete enjoyment and use of it as a cliattel. Now, in considering this case we cannot doubt that the machines never became part of the freehold. They were attached slightly, so as to be capable of removal without the least injury to the fabric of the building, or to themselves; and the object and purpose o'f the annexation was, not to improve the inheritance, but merely to render the machines steadier, and more capable of con- venient use as chattels. They were never a part of the freehold any more than a carpet would be which is attached to the floor by nails, for the purpose of keeping it stretched out, or curtains, looking- glasses, pictures, and other matters of an ornamental nature, which have been slightly attached to the walls of the dwelling as furniture and which is probably the reason why they and similar articles have been held, in different cases, to be removable. The machines would have passed to the executor (per Lord Lyndhurst, C. B. ; Trappes v. Harter, 2 C. & M. 177,). They would not have passed by a convey- ance or demise of the mill. They never ceased to have the character of movable chattels, and were therefore liable to the defendant's distress. See also Lane v. Dixon, 8 C. B. 776, (54 E. C. L. E. 776,) ; and Wood v. Hewitt, 8 Q. B. 913, (55 E. C. L. R. 913,). Where a landlord distrains, amongst other things, goods which are not dis- trainable (as, for instance, looms which are in work, there being on the premises other goods sufficient to satisfy the rent), and the tenant in order to obtain a withdrawal of the distress, pays the amount of the rent and the costs, he is entitled, in an action of trespass to recover only the actual damage caused by the taking of the privileged goods, and not the whole amount of the money which he has paid. Harvey v. Pocock, 11 M. & W. 740.* No one can acquire a right by his own wrongful act, and therefore, if a landlord severs fixtures under a distress, the tenant mny bring trover for them, and describe them as goods and chattels, although trover will not lie for fixtures unsevercd from the freehold. Dalton v. Whittem, 3 Q. B. 961, (43 E. C. L. R. 1056,) ; Boffey v. Henderson, 17 Q. B. 574. (79 E. C. L. B. 574.) DISTRESS. 187 disfi-esses and executions, fox * under executions r*i4^^-| by Jie7'i facias, fixtiu'es, wliicli the party against whom the execution issues could *have re- r*!^;:-! moved, as against his o^vn immediate landlord, may be seized (see Poole's Case, 1 Salk. 368), whereas Chief Justice Willes lays it down clearly, in the case I have cited, that such articles are not seizable under a distress.(«) Again, a chattel is privileged against distress \^hich is upon the premises, in consequence of its having been delivered to the owner, to he ivrought, ivorked up, or managed in the way of his trade or employment. ■ Thus, if I have sent cloth to a tailor to be made into a coat, or if I send my horse to a smith's shop to be shod, or goods to a factor to be sold, or to a carrier to be car- ried, this cloth, this horse, these goods, are not distrain- able by the respective landlords of the persons to whom I have so intrusted them, while they remain upon the premises of the persons for the above purposes. 1 Inst. 47 a; Gisbourn i\ Hurst, 1 Salk. 249; Gilman v. Elton, 3 B. & B. 75,(7. R C. L. R. 355,) ; Thompson v. Mashiter, 1 Bing.283, (8 E. C. L. R. 510,); Matthias v. Mesnard, 2 C. & P. 353, (12 E. C. L. R. 613,). The principle on which these cases have proceeded is that, in a commer- cial country like England, the interest of the public, as well as that of individuals, requires that confidence should, as much as possible, be encouraged and kept alive between the trader *and his customers, ^^ ,^ I 1461 and, therefore, the law privileges my goods ■- -■ from distress while in the custody of my trader in the way of trade, lest, if they were not so privileged, I might be deterred from trusting them to a poor and industrious man by the apprehension that if his rent should fall in arrear my goods might be appropriated (a) Reynolds r. Shulcr, 5 Cowen, 323 188 LANDLORD AND TENANT. to the payment of it. Upon this general principle of public policy proceeds the case of Adams v. Grane, 1 Cr. & M. 380;* 3 Tyi'wh. 326 ; where it was held that goods sent to an auctioneer for sale were privileged from being distrained for his rent. " It is the interest of the public," said Sir John Bayley, " to bring buyers and sellers together at fixed j)laces. This privilege is therefore of great importance to the owners of goods, who should not be exposed to the risk of .losing them from the default of the parties on whose premises they are deposited for that purpose." On the same prin- ciple, proceeded Brown v. Shevill, 2 A. & E. 138, (29 E, C. L. R. 82,) in which the carcass of a beast sent to a butcher to be slaughtered was held to be privileged from distress in respect of the butcher's rent. Still, though this sort of privilege is, no doubt, very benefi- cial, and has, to use the words of Sir John Bayley, in the case I have just cited, " been from time to time in- creased in extent, according to the new modes of deal- ing established between parties by the change of times and circumstances," the Courts have latterly shown a strong disposition to restrain it from exceeding the P^-.^^-. limits strictly *warranted by that principle; instances of which disposition on the part of the Courts you will find in the late cases of Muspratt V. Gregory,'l M. & W. 633,* [S. C. in error, 3 M. & W. 677,*] and Joule v. Jackson, 7 M. & W. 450.*-X«) 2^ See the notes to Simpson v. Hartopp, 1 Smith's L. C 187. Lord Coke says (Co. Litt. -17 a) that sacks of corn or meal in a mill are exempt; meaning, doubtless, the corn of customers left there in (a) The American cases go the whole length of the doctrine as laid down in the text, and e^en further, for it has been held that when the business of the tenant is such as naturally to draw to his premises the goods of other people, the landlord shall not be allowed to distrain them for rent. Thus it has been held that the goods of a DISTRESS. 189 Again, tldngs ivliicli are actually in some 'persoiibS use are, while they so continue, privileged from, being taken by way of distress for rent. Thus it is laid down in the judgment in Simpson v. Hartopp, which I have already cited, that the horse on which a man is actually riding, the tools with which a man is actually working, are exempt from distress. And this again is founded on reasons of public policy, for, were it otherwise, there might be great danger of a breach of the peace being occasioned by the attempt to take the chattel in actual use out of the possession of the person using it.-'(o) the way of trade. So, silk sent to a silk weaver to manufacture into velvet cannot be distrained. Gibson v. Ireson,3 Q. B. 39, (43 E. C. L. E.. 621,). Goods standing on the premises of a commission agent for sale in the way of his business, as, for instance, a cab in the han'ds of an agent for the sale of carriages, are also privileged from distress for rent. Findon v. M'Laren, 6 Q. B. 891, (51 E. C. L. R. 891,). Butitis otherwise with respect to horses and carriages standing at livery. Par- sons v.. Gingell, 4 C. B. 545, (56 E. C L. R. 545,). And brewer's casks sent to a public house with beer, and left there until the beer is consumed, are not protected. Joule v. Jackson, cited above. Goods at an auctioneer's for sale are privileged, even although the auctioneer may have acquired the occupation of the place of sale by a trespass. Brown v. Arundell, 10 C. B. 54, (70 E. C. L. R. 54,). So are goods which are deposited by an auctioneer for the purpose of sale in an open yard belonging to his premises. V/illiams v. Holmes, 8 Exch. 861. (20 E. L. & Eq. R. 360.) ^ Co. Litt. 47 a. Other things privileged from distress for rent lodger in a boarding house, and cattle received by a tenant, to be pas- tured for hire, are exempt from distress for the rent. Brown v. Sims, 17 S. & R., 138; Riddle v. Wcldeu, 5 Wharton, 9; Cadwalader v. Tindall, 8 Harris, 422 : Youngblood v. Lowry, 2 McCord, 39 ; Stone V. Matthews, 7 Hill, 428. In New York, the goods of a lodger in a boarding house were exempted from distress by the revised statutes. The act of 1846 has abolished distress for rent altogether. ((') Goods which are in the custody of the law cannot be distrained. 190 LANDLORD AXD TENANT. r* 1 -im *Tliings falling within the three classes which I have just described, namely, those which are are animals in a wild state, wherein no one has a valuable propei'ty ; such as bucks ami does. Dogs are also mentioned by Lord Coke as protected. Co. Litt, 47 a. It appears to be doubtful, from the judgment of the Lord Chief Justice Willes, in Davies v. Powell, Willes, 48, whether this exemption is still applicable. But it may be observed, that although,' as is stated in the judgment, the law now undoubtedly takes notice of dogs as valuable things (Wright v. Eam- seot, 1 Saund. 83 ; Binstead v. Buck, 2 W. Bl. HIT), this was so also at the time when the rule in question was laid down by Lord Coke (see Ireland v. Higgins, Cro. Eliz. 125) ; and the property which the law recognises in them, and in other animals of the like nature, which do not serve for food, is only a base property. They are not considered to have any intrinsic value. See 4 Black. Comm. 285. The acts of parliament which make the stealing of dogs punishable do not appear to affect this question. Deer kept in a privat-e enclosure may be distrained. Davies v. Powell, iihl %up. Cattle which escape out of the land of a stranger upon the land out of which the rent issues, through a defect of the fences which the tenant is bound to repair, cannot be distrained for rent, unless the owner, after notice, neglects or refuses to take them away. See 2 Leon. 7 ; Dyer, 317 b ) and the notes to Poole v. Longuevill, 2 Wms. Saund. 290. Goods in the custody of the law are not distrainable as, for instance, goods which have been distrained damage feasant, or taken in execution. See Co. Litt. 47 a, and Peacock v. Purvis, 2 Bro. & Bing. 362, (6 E. C. L. R. 183,). But this exemption does not extend to goods in the custody of a messenger under a fiat in bankruptcy. Briggs v. Sowry, 8 M. & W. 729.* By a recent statute, growing crops seized and sold by the sheriff and left on the premises arc liable to be distrained in default of any other distress. See the 14 & 15 Vic. c. 25, andpos^, p. 150 note. Lastly, the cattle and goods of the guests at an inn are also protected from distress so long as they are upon the premises. Bac. Ab. Inns, and Innkeepers (B); Crosier v. Tompkinson, 2 Ld. Ken. 439. Hamilton v. Beedy, 3 McCord, 38 ; Peirce v. Scott, 4 W. & S., 344; Peacock v. Purvis, 2 Brod. & Bing., 362, (6 E. C. L. R. 183,). By the common law, the landlord lost his rent, if an execution was DISTRESS. 191 either affixed to the freehold, or are on the premises for the purpose of being dealt with by the owner in levied upon the tenant's goods, before distress. The first sect., 8 Ann., c. 14, was passed to remedy this. It provides " that no goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements, which are or shall be leased for life or lives, terms of years, at will, or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall, before the removal of such goods from ofi" the said premises, by virtue of such execution or extent, pay to the landlord of the said premises, or his bailifi", all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking of such goods or chattels by virtue of such exe- cution ; provided the said arrears do not amount to more than one year's rent; and, in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff, one year's rent, may proceed to exe- cute his judgment, as he might have done before the making of the act; and the sheriff or other olSccr is thereby empowered and re- quired to levy and pay to the plaintiff, as well the money so paid for rent, as the execution money." Under this statute it was held that the landlord could demand only one year's rent. Colyer v. Speer, 2 B. & B. 67, (6 E. C. L. R. 40,). If there were several executions, still the landlord could claim only one year's rent, Dod v. Saxly Str., 1024. And he could claim only the rent due at the time of the seizure, but he was entitled to a full year's rent, though he had been in the habit of remitting some portion of it to the tenant. Hoskins v. Knight, 1 M. & S., 245; Williams v. Lewsey, 8 Bing. 28, (21 E. C. L. R. 208,) 1 M. & Scott, 92 ; Rent payable in advance might be claimed. Harrison v. Barry, 7 Price, 690. The statute applies to all executions at the suit of the subject. — Henchett V. Kimpson,2 Wils., 140; Greaves v, D' Acastro, Bunb, 194 ; St. John's Colleger. Muvcott, 7 T. R., 259; Dixon v. Smith, 1 Swans, 457 ; Thurgood v. Richardson, 5 M. & P., 270 ; Thurgood v. Rich- ardson, 7 Bing., 428, (20 E. C L. R. 190) ; same case, 4 Car. & P., 481, (19 E. C. L. R., 612). The sheriff must have notice, but if he knows that the rent is due, 192 LANDLORD AND TENANT. the way of his trade, or are in actual use, are ahsolutely r* 14-01 P-i^'il^gGcl against distress, that is, are *privi- leged whether there are or are not other specific notice is not necessary. Arnitt v. Garnett, 3 B. & A., 440, (53 E. C. L. K. 257,); Smith v. Russell, 3 Taunt., 400; Andrews v. Dixon, 3 B. & A , 645, (5 E. C. L. E. 371,) ; Colyer v. Speer, 4 Moore, 473, 2 B. & B., 67, (6 E. C. L. R. 40,). Statutes similar in spirit have been passed in many of the United States. The Pennsylvania statute of 1836, sects. 83, 84 & 85 is in these words : \ 83, " The goods and chattels being in or upon any messuage, lands, or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent, at the time of taking such goods in exe- cution ; provided that such rent shall not exceed one year's rent." § 84, " After the sale by the officer of any goods or chattels, as aforesaid, he shall first pay out of the proceeds of such sale, the rent so due, and the surplus thereof, if any, he shall apply towards satis- fying the judgment mentioned in such execution ; provided, that if the proceeds of the sale shall not be sufficient to pay the landlord, and the costs of the execution, the landlord shall be entitled to receive the proceeds, after deducting so much for costs, as he would be liable to pay in case of a sale under distress." § 85, " Whenever any goods or chattels liable to the payment of rent, as aforesaid, shall be seized in execution, the proceedings on such execution, shall not be stayed by the plaintiff therein, without the consent of the person entitled to the rent, in writing first had and obtained." Under this and the former statute of 1772, it has been held that the rent may be apportioned in favor of the landlord, up to the time of seizure. West v. Sink, 2 Yeates, 274 ; Binns v. Hudson, 5 Binn, 505; Morgan v. Moody, 6 W. & S., 335; Parker & Keller's Appeal, 5 Barr, 390. See Case v. Davis, 15 Penna. State Eep., (3 Harris.) 80. If there are two levies the landlord may claim down to the date of the last. Worley v. Worley, 1 Trub. & H. Pr., p. 734. The landlord is entitled to his rent from the proceeds of an execution levied by a constable. Seitzinger v. Steinberger, 2 Jones, 379. In New York, New Jersey and Alabama, it is held that the land- DISTRESS. 193 articles upon the premises liable to be distrained. But there are some things which, although not privileged lord is entitled only to the rent due at the time of the seizure. — Hazard v. Raymond, 2 Johns., 478 ; Beekman v. Lansing, 3 Wend. 447; Schenck v. Vannut, 1 South., 329; Denham v. Harris, 13 Ala., 465 ; Bowzer v. Scott, 8 Blackf., 86. The landlord is only entitled to one year's rent. The number of executions makes no difference. Van Rensselaer v. Quackenboss, 17 Wend., 34. But be is not confined to the last year's rent, so that only one year's rent be received ; nor is it material if the lessee holds under a lease subsequent to that under which the arrearages are due ; the rent in the latter being reserved in iron, in the former in money. Parker and Keller's Appeal, 5 Barr. 390 ; Richie v. McCauIey, 4 Barr. 471 ; Ege v. Ege, 5 W. 134, 140. But it seems when the sale is of the tenant's goods, under an exe- cution during the term of one lease, the landlord cannot claim rent agreed to be paid in advance on another lease not yet commenced, Martin's Appeal, 5 W. & S. 221. Having taken a note for the rent will not prevent the landlord's claim though the note be not due. Fife v. Irving, 1 Rich. 226. The notice to the sheriff is sufficient if given at any time before the money is paid over to the plaintifi". Beekman v. Lansing, 3 Wend. 447 Costs in the 84th section of the Pennsylvania Act were said in the District Court, Hennis v. Streeper, 1 Miles, 269, to be the costs of the execution not including those of the sheriff for executing it. If the notice is disregarded by the sheriff, he renders himself liable. Governor v. Edward, 4 Bibb. 219; Colyer v. Speer, 4 Moore, 473; Calvert v. Joliffe, 2 B. & Adol. 418, (22 E. C L. R. 178,); Lane v. Crockett, 7 Price, 566; Beeston v. Wright, 2 Doug. 655; Reed v. Thoyts,6 Mee. & W. 412; Riseley v. Ryle, 10 Mee. ifc W. 101 ; Forster v Cookson, 1 Gale & D. 58 ; 1 Ad. & Ellis, N. S. 419, (41 E. C. L. R. 606,); Van Renssalaer v. Quackenboss, 17 Wend. 34. The rent protected is that due to the immediate landlord of the defendant. Bromley u. Hopewell, 14 Penn. State R. (2 Harris) 400; Contra Thurgood v. Richardson, 5 M. & P. 270, and 7 Ring. 428, (20 E. C. L. R. 194,). The landlord loses his right if he accepts a surrender of the lease 13 104 LANDLORD AND TENANT. altogether against being distrained, are privileged con- ditionally^ that is, are privileged, unless it should turn out that there is no other sufficient distress to be come by. Of this description are beasts of the plough, in- struments of husbandry, and, generally speaking, the instruments of a man's trade and profession. See Fen- ton V. Logan, 9 Bing. 676, (23 E. C. L. R. 756,); Gor- after the levy, for he thus parts with his right to distrain. Greider's Appeal, 5 Barr. 4'23. The landlord is not entitled to claim anything under the execution for which he could not distrain, therefore if part of the -annual sum payable to the landlord is made up of compensation for the use of personal property, and the several proportions due for rent of the land, and for the use of the chattels, cannot be ascertained; the landlord cannot claim any thing from the sheriff. Commonwealth v. Contner, 6 Harris, 447. Black, C. J., says, " The rent was reserved by the lease of the furnace, and of personal property, consisting of a stove, teams, &c. Now a sum of money, payable periodically, for the use of chattels, is not rent in any legal sense of the word. It cannot be distrained for; and unless it can, it is not demandable out of the proceeds of a sheriff's sale ; for this right comes in place of a distress by the plain words of the statute. Rent must not only issue out 0? land, but it must be fixed, definite, and certain in amount, whether payable in money, chattels, or labor. If, therefore, a lease so mixes the real and personal property together that it cannot be determined how much of what is called the rent is to be paid for the chattels, and how much is the profit of laod, there can be no distress for non-payment of it. This lease stipulates for a rent of ,^3,500 on real and personal property both. But they may be separated. There is a provision in it that when the tenant buys and pays for the personal property, the rent shall be abated to S2,500. From this we may infer that the rent was $2,500 for the furnace, and $1,000 for the goods. It requires a very liberal construction to make this out in favor of the lessor. But after careful consideration and some doubt, we are all of opinion that we may take it from the language of the lease without violating either the natural probabilities of the case, or any received rule of interpretation." DISTRESS. 105 ton V. Falkner, 4 T. R. 565.-^ Thus Lord Coke says, in the 1st Inst. 47 a, that the books of a scholar would be privileged in the first instance from distress, and I suppose that this exemption would include a lawyer's books also, though it is right, for the credit of the pro- fession, to say, that there is no case to be found in which the question has been raised. The cases I have been enumerating are cases of privilege against distress. Now there are, on the other hand, some cases in which articles not falling within the general description of things distrainable, are yet rendered so by a sort of exception to the general rule. These are cases included within the enactment of stat. 11 Geo. 2, c. 19, s. 8, which provides that landlords may distrain coiii^ grass ^ *or other prodiid., groic- p^, ^r.-. ing on any ixirt of the Jand demised.-^ Such 2* Sheep are privileged to the same extent as beasts of the plough. See the 51 Hen. 3, st. 4, and Co. Litt. 47 a, note. Chattels and animals which are in actual use cannot be distrained even damage feasant. Field v. Adams, 12 A. & E. 649, (40 E. C L. R. 324,) ; Bunch V. Kennington, 1 Q. B. 679, (41 E. C L. R. 726,). 2s The 2 Wm. & M. sess. 1, c. 5. s. 3, gave the right to distrain " 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 or ground charged" with the rent. Under this act, and the 4 Geo. 2, c. 28, s. 5, (which gives in respect oi rents-secJc the same powers of distress as exist in the case of rents reserved upon leases), the grantee of a rent-charge may dis- train hay or straw loose or in the stack. Johnson v. Faulkner, 2 Q. B. 925, (42 E. C. L. E. 980,). In Miller v. Green, 2 Cr. & J. 142,* S. C. iu error, 8 Bing. 92, (21 E. G. L. B. 459,) it was held, that the right to distrain growing crops, given by the 11 Geo. 2, c. 19, could not be exercised by the grantee of an annuity, although the deed contained a power to distrain for the arrears and to dispose of the distress in the same manner in all respects as distresses for rents reserved upon leases for years. It will be observed, that the 196 LANDLORD AND TENANT. r*!--!-] tilings not being chattels ^personal, were not distrainable at common law, and, even now, 11 Geo. 2, c. 19, s. 8, mentions expressly only <• lessors or land- lords ;" but the language of the 2 Wni. & M. sess. 1, c. 5, is more general. If a landlord seizes standing corn and growing crops as a distress for rent, and sells them before they are ripe, the sale is wholly void. Owen v. Legh, 3 B. & A. 470, (5 E. C. L. R. 273,). In Proudlove v. Twemlow, 1 Cr. & M. 326,* a landlord seized grow- ing crops and sold them before they were cut, and they were after- wards cut and taken away by the purchaser. It appeared, however, that they were sold for the full value which they would have fetched if sold at the proper time, and that the amount produced was less than the amount of rent due. The Court held that the tenant could only recover nominal damages. Growing corn sold under an execu- tion could not, until recently, be distrained for rent unless the purchaser allowed it to remain an unreasonable time on the ground after it was ripe. Peacock v. Purvis, 2 Bro. & Bing. 362, (6 E. C. L. R. 183,) ; Wright v. Dewcs, 1 A. & E. 611, (28 E. C. L. R. 302,). But now, by the 14 & 15 Vie. 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. The 56 Geo. 3, c. 50, s. 1, provides that " no sheriff or other officer in England or Wales shall, by virtue of any process of any court of law, carry off, or sell, or dispose of, for the purpose of being carried off from any lands let to farm, any straw thrashed or unthrashed, or any straw of crops growing, or any chaff, clover, or any turnips, or any manure, compost, ashes, or sea- weed, in any case •whatsoever ; nor any hay, grass or grasses, whether natural or artifi- cial, nor any tares or vetches, nor any roots or vegetables, being produce of such lands, in any case where, according to any covenant or written agreement, entered into and made for the benefit of the owner or landlord of any farm, such hay, grass or grasses, tares and vetches, roots or vegetables ought not to be taken off or withholden from such lands, or which, by the tenor or effect of such covenants or agreements, ouglit to be used or expended thereon, and of which covenants or agreements such sheriff or other officer shall have re- ceived a written notice before he shall have proceeded to sale." By DISTRESS. 197 the statute does not include young *trees grow- r*i ^9-1 ing in a nursery ground, the words otlie'r pro- s. 3 of this act it is enacted that any crops or produce of this descrip- tion may be sold by the sheriff, subject to an undertaking to expend them on the land according to the custom of the country, or accordin"' to the terms of any covenant or written agreement which has been entered into by the tenant. By s. 6, it is provided that " in all cases where any purchaser or purchasers of any crops or produce herein- before mentioned, shall have entered into any agreement with such sheriff or other officer, touching the use and expenditure thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to distrain for any rent on any corn, hay, straw, or other produce thereof which, at the time 'of such sale, and the execu- tion of such agreement entered into under the provisions of this act, shall have been severed from the soil, and sold, subject to such agreement, by such sheriff or other officer ; nor on any turnips, whether drawn or growing, if sold according to the provisions of this act; nor on any horses, sheep, or other cattle, nor on any beast whatsoever ; nor on any wagons, carts, or other implements of hus- bandry, which any person or persons shall employ, keep, or use on such lands for the purpose of thrashing out, carrying, or consuming any such corn, hay, straw, turnips, or other produce under the pro- visions of the act, and the agreement or agreements directed to be entered into between the sheriff or other officer, and the purchaser or purchasers of such crops and produce as hereinbefore are mentioned." Ey s. 11 of this act the assignees in bankruptcy and insolvency, and the purchasers of the goods, stock, or crops of persons engaged in husbandry, are obliged to use the hay, manure, &c., and other produce and dressings of the lands in the same manner as the tenant ought to have used them. It has been held that this section is of general application, and is not limited to sales under an execution. Wilmot V. Rose, 3 E. & B. 568. It appears to be settled, after some conflict of authority on the subject, that where hay and straw is seized under a distress, and the tenant is under covenant to expend it upon the premises, the landlord has no right to sell it, subject to a condition that the purchaser shall consume it on the premises. See Ridgway v. Lord Stafford, 6 Exch. 404 ; Abbey v. Fetch, 8 M. & W. 419 ;* and Frusher v. Lee, 10 M. & W. 709.* lOS LANDLORD AND TENANT. duct being construed to ai)ply to things of the same sort as those particularly specified, namely, grass and corn; things to which the process of being cut, gathered, made up, and laid up, when ripe, is inciden- tal. See Clark v. Gaskarth, 8 Taunt. 431, (4 E. C. L. E. 216,).(rt) Before leaving this part of the subject, it is right to mention that, though there are some things conditionally privileged, such as beasts of the plough and instruments of husbandry, so that, before they are distrained, the landlord must resort to other distrain- able articles, if there be any ; yet he is not obliged to resort to grass or growing corn before taking the articles conditionally privileged ; since, as the privilege existed at common law, it could not have exempted tJiem from being distrained before articles which were then ahsolutely exempt, and which would still continue to be so, were it not for the provisions of a particular statute. Piggott V. Birtles, 1 M. & W. 441.* Having thus mentioned what the landlord may and what he may not take as a distress for rent, the next point is, lohere is he to clistrain? And tlie general rule r*l ^'^^ ^^' ^^^^ ^^^ must distrain goods fomid *upon the premises demised, and there only ; except, indeed, in the case of her Majesty, who by the special prerogative of the Crown may distrain on all her tenants' lands, wherever situated, and of whomsoever held.^^ But, in the case of a subject, the distress must be taken on the demised premises,'^^ a ride which is 2^ Com. Dig. Distress (A. 3). 28 See Co. Litt. 161 a, and Com. Dig. Distress (A, 3) (B, 1). The statute of Marlebridge, c. 15, (52 Hen. 3), enacted that no one save the King should distrain " out of his fee, nor in the King's highway, nor in the common street. See as to this statute, which was in (a) See in Pennsylvania, 7 sect. Act 21st March, 1772} 1 Smith's Laws, 371, for a similar enactment. DISTRESS. 199 exemplified, in a very curious case of Capel v. Buszard, 6 Bing. 150, (19 e/c. L. B. 75,). In that case, cer- tain premises lying opposite to the river Thames were demised, but no part of the soil of the river itself was demised. The landlord distrained a barge, at- tached to the demised premises by ropes, and which lay perpendicularly over the soil of the river, between high and low water-mark. The Court of Exchequer Chamber held, after a long and elaborate argument, that the barge, not being upon the demised premises, was not, in point of law% distrainable. But to this rule, as to most other general rules, there are certain exceptions. In the first place, it is laid down in the 1st Inst. 161 a, that, if the landlord come to make a distress, and see the tenant's cattle feeding on the land demised, but before he can take them, the tenant [or any other] drive them off the land to pre- vent the distress, the landlord may follow^ and distrain them.^.^ affirmance of the common law, the 2d Inst. 131 ; and Gilbert on Dist. 40. A distress on the highway would seem not to be wholly void but only irregular, iZ>. 2^ In this case, by a fiction of law, the cattle were supposed to be still on the land. The words of Lord Coke are, " Yet may the lord justly follow and distrain the cattle, and the tenant cannot make rescous, albeit the place wherein the distress is taken is out of his fee, for now in the judgynent of laio the distress is taken icithin liis fee, and so shall the writ of rescous suppose. B,ut if the lord coming to distrain had no view of the cattle within his fee though the tenant drive them off purposely, or if the cattle of themselves after the view go out of the fee, or if the tenant after the view remove them for any other cause than to prevent the lord of his distress, then cannot the lord distrain them out of his fee." And notwithstanding the statue of Marlbridge, c. 15 (52 Hen. 3), if the lord came to distrain, and saw the beasts within his fee, and before he could distrain them, the tenant chased them into the highway, the lord might distrain them there. 2d Inst. 132. 200 LAN'DLORD AXD T E N A X T. r*i '11 *Tliis rule of the common law seems to have given the hint for the stat. of 8 Anne, c. 14, s. 2, which has been followed np by stat. 11 Geo, 2, c. 19, s. 1, by which, if the tenant frandulently [or clan- destinely] remove his goods from the demised premises, in order to prevent a distress, the landlord is, T\ithin 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 hona fide purchaser. («) On the construction of this (a) The statutes of 8 Anne, eh. 14, § 2, and 11 George 2, ch. 19, § 1, have been substantially re-enacted in Pennsylvania by the Act of 21st March, 1772, § 5 and 6, 1 Sm. 370. Thirty days is the time allowed for seiziug the goods. Similar enactments are found in other States. Poor v. Peebles, 1 B. Muuroe, 1 ; Wilcoxen v. Bowles, 1 La. Ann. R. 230. The Supreme Court of Pennsylvania held in (irace v. Shively, 12 S. & R. 217, that the statute did not apply to cases where the goods were removed before the rent became due; whereupon the legislature on the 25th March, 1825, passed an additional section confined in its operation to the City and County of Philadelphia, by which the landlord is enabled even before his rent is due to distrain for it, when the tenant shall fraudulently convey away, or carry otf or from the demised premises his goods and chat- tels with intent to defraud the kndlord or lessor of his remedy by distress ; in such ease the landlord or lessor may consider his rent as apportioned up to the time of such conveying away or carrying off, and distrain within the space of thirty days next ensuing such con- veying away or carrying off, wherever the goods may be found, provided that the landlord first make oath that he verily believes the goods were carried away for the purpose of defrauding ; and pro- vided that no goods shall be taken which have been honCi file for a valuable consideration sold before such seizure to a person not privy to the fraud. If the goods are removed in the day time, the fact that it is with- out the landlord's knowledge does not make the removal fraudulent. Grace v. Shively, 12 S. & R. 217. And the right to follow goods is confined to the tenant's own goods, not the goods of a strangerj DISTRESS. 201 part of the enactment, another part of whicli I shall have occasion to mention again, yon may consult Fnr- neanx v. Fotherby, 4 Campb, 136; Watson v. Main, 3 Esp. 15; and Parry v. Duncan, 7 Bing. 243, (20 E. C. L. R. 115,).^*^ It applies, *you must remem- |-*-|---| ber, only to a removal of the tenant's own ^° The landlord is entitled to distrain if the removal is fraudulent, even though it is not clandestine. Opperman v. Smith, 4 J). & R. 33, (16 E. C L. R. 187,). The first section of the 11 Geo. 2, c .19, is substantially the same as the second section of the 8 Anne, e. 14, except tliat the earlier of these statutes allowed only five days after the removal for seizing the goods, and the later allows thirty. By s. though they may have been liable to a distress while on' the pre- mises. Adams v. La Comb, 1 Dall. 440; Frisby v. Thayer, 25 Wend. 396. And the landlord will be guilty of a trespass if he enter the house of a stranger to search for and distrain goods fraudulently removed, if he finds none. Hobbs v. Geiss, 13 S. & R. 417. 8 Anne, ch. 14, § 2, is in these words : And be it further enacted, that in case any lessee for life or lives, term of years, at will, or other- wise, of any messuages, lands, or tenements upon the demise whereof, any rents are or shall be reserved or made payable, shall from and after the first day of May, fraudulently or clandestinely convey or carry off from such demised premises his goods or chattels with intent to prevent the landlord or lessor from distraining the same for arrears of such rent so reserved as aforesaid, it shall and may be lawful to and for such lessor or landlord, or any person or persons by him for that purpose lawfully empowered, within the space of five days nest ensuing such conveying away or carrying off of such goods or chattels as aforesaid, to take and seize such goods and chattels wherever the same shall be found as a distress for the said arrears of such rent ; and the same to sell or otherwise dispose of in such manner as if the said goods and chattels had actually been distrained by such lessor or landlord in and upon such demised premises for such arrears of rent j any law, custom, or usage to the contrary in any wise notwith- standinnj. 202 LANDLORD AND TENANT. 9 goods, not to those of a stranger, wliich happened to be on the demised premises ; for, thongh the landlord 4 of the 11 Geo. 2, c. 19, a remedy is given to the landlord by com- plaint to two justices where the goods do not exceed the value of 50?. ; but he is not limited to this remedy. Bromley v. Holden, I Moo. & M. 175, (22 E C. L. R. 500,). In Rand v. -Vaughan, 1 Bing. N. C. 767, (27 E. C L. E. « 51,) it was held that the statute did not apply to cases in which the tenant fraudulently removed bis goods before the rent became due. In this case the goods were in fact removed hefore the quarter-day, but the Court appeared to be o f opinion that it was ncri ssnry that the rent should be actually in arrear, in which case goo Is leinoved on the quarter-day would not be distrainable. In a late case, however, the Court of Queen's Bench has held that goods fraudulently removed on the morning of the day upon which the rent beco mes due may be followed and s eized under the statute, the rent being under these circumstances due and payable (see ante, p. 126, note ^,) though not in arrear at the time of the removal. From this judgment Mr. Justice Crompton dis- sented, holding that, by the previous cases, it has been decided that the rent must be in arrear at the time of the removal. See Dibble v. Bowater, 2 E. & B. 564, (75 E. C. L. R. 564,). It is not necessary, in a plea justifying the seizure of goods under this statute, to allege that the goods have not been sold hond fide to persons not privy to the fraud. This fact must be replied. Nor is it necessary, in order to the exercise of the right given by the act, that the party upon whose land the goods are seized should himself be privy to the fraud. Williams v. Roberts, 7 Exch. 618. In trespass, a special, plea is necessary where the seizure of goods is to be justified under this act. 2 Wms. Saund. 284 a. See as to the form of it the case last cited, and Fletcher r. Marillier, 9 A & E. 457, (36 E. C L. R. 170,). By s. 7 of the 11 Geo. 2, c. 19, when goods are fraudulently removed and placed in any house or place locked up or otherwise secured, the landlord or his agent may, with the assistance of a peace oflBlcer (and in the case of a dwelling-house, after oath being made before a magis- trate of a reasonable ground to suspect that the goods are in it), break open the house, etc., in the daytime, and distrain the goods as if they had been in any open place. See as to this section, post, p 170. DISTRESS. 203 might have taken such, if not privileged, yet it would be hard indeed to debar the owner from rescuing them from jeopardy. *Thorton v. Adams, 5 M. & ^^^^.^^ 8. 38; Postman v. Harrell, 6 C. & P. 225, (25 •- '' E. C. L. II. 406,). By the 8th section of the same stat. 11 Geo. 2, c. 19, the landlord may distrain cattle [of the tenant's] depasturing upon any common or way appertaining to the premises demised, a privilege too reasonable to require comment.^^(a) Having thus proceeded as far as the time will per- mit in the consideration of the main points relative to a distress for rent, I must postpone till the next Lec- ture those with regard to the time and mode of making it, the treatment of the distress when taken, and the tenant'' s remedies in the case of illegal proceedings. ^^ The words of this section are, 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 depasturing upon any common appendant or appurtenant, or any way belonging to all or any part of the premises demised or holden." (a) In Pennsylvania, by 7 sec. Act 21st March, 1772, 1 Smith, 371, the landlord is authorised to seize as a distress for rent, any cattle or stock of the tenant feeding or depasturing upon all or any part of the premises demised or holdeu. 204 LANDLORD AND TENANT. [*157] *LECTUEE YI. Points relatixg to Coxtixu- AXCE OF TeXAXCY ( COll- tinued) 157 Remedy by Distress ( cou- tinued) 158 When the Landlord may dis- train 158 Forehand Rent 158 Time of Day at which Dis- tress may be made 159 After Expiration of Tenancy IGO Effect of the 8 Anne, c. 14, S.6 160 How the Landlord may dis- train 1 G2 Warrant 1G4 Outer Door must be open. . 1G5 Seizure 166 Inventory 166 Notice 166 Seizure of Goods fraudu- lently removed 168 What the Landlord must do with the Distress 171 Power of Landlord at Com- mon Law 171 Statutory Liability to pro- vide Food for Cattle dis- trained 173 Statutory Alterations of Power of Landlord 174 Right to impound on Pre- mises 175 Impounding of growing Crops 177 Appraisement and Sale 178 Remedies of Tenant for a WRONGFUL Distress 180 Where Distress is irregu- lar 180 Where no Right to dis- train 182 Where Distress is by a Stranger 182 Where Distress is by Land- lord 182 Proceedings in Replevin .... 183 Bond 185 We were considering- at the conclusion of the last Lecture the landlord's remedies in case of the non-pay- ment of his rent, and had arrived at that by way of Distress. Of the six points into which I distributed that part of the subject, the time had allowed me to dispose of two only. I had *considered what [*158] the things are which the landlord is entitled to distrain, and had stated the general rule that all chattels found on the demised premises are distrain- able, the exceptions from this rule and the additions to DISTRESS. 205 it. I had stated also wJiere he is permitted to distrain, generally speaking on the demised premises, and I had mentioned the cases in which that rule also is enlarged, and, on what particular occasions he is permitted to exercise his right of distress elsewhere — the questions which remain are : AVhejst the distress is to he made. How it is to he made. What is to he done ivith it. And lastly. What are the tenants remedies in case of illegal or irregidar proceedirigs. Now, with regard to the question, When the distress is to he made. It must of course, not he made until the rent has become due, and, as I have stated in a former Lecture, that (except for one purpose, which I then specified, that, namely, of making a demand to create, or a tender to prevent forfeiture) rent does not become due till the last minute of the day on which it is by the lease made payable,^ it follows, of course, that there can be no distress until the next day.-(a) It sometimes indeed happens that by the special agree- ment of the parties to the lease, the rent is made pay- able hefoi'e the time for which it is to be paid has elapsed, and, as there is no objection *in point ^^. ^qn of law to such an agreement, the rent would, in such case, be distrainable for as soon as the time so specially fixed had elapsed, but this you will at once perceive, is not a contravention of the general prin- ciple, but a carrying out of it, for the rent is not, in such cases, distrained for he/ore the time of payment has elapsed, although, in consequence of special terms in- serted in the lease, the time of payment is accelerated, ^ uinte, p. 125. 2 See Co. Litt. 47 b, note 6; Duppa v. IMayo, 1 Wms. Saund. 282 ; and the notes to Poole /;. Longueville, 2 ib. 28 i b. {(() McKinncy v. Reeder, 6 Watts. 41. 20G LANDLORD AND TENANT. I and made to occur earlier than in ordinary cases.^ Sometimes too it happens, especially as I have heard in the Eastern Counties of England, that, by a local custom, the rent is payable as soon as the half year begins, which custom would, in the absence of terms incompatible with it, be incorporated into the lease, and give the landlord a right to distrain immediately. You will find this in Buckley v. Taylor, 2 T. E,. 600.* With regard to the tiine of making the distress, it is further to be observed, that it must be between sunrise and sunset. The law relative to distresses, except such part of it as owes its origin to statute, is all very ancient ; and the reason given for this rule by the old books certainly savors of antiquity. It is, that the tenant may be able to see the landlord or his bailiff coming, so as to prevent the necessity of the distress r*irni ^^ ^ tender.^ A better *reason might (one would suppose) be found in the inconvenience and disturbance to families which would arise from allowing a proceeding of some violence to take place during the hours devoted to repose, an inconvenience from which I think the law has done wisely in exempt- ing them. It must further be observed, with regard to the time of making the distress, that, at common law, it could not have been made after the expiration of the lease (1 Inst. 47 b), but by stat. 8 Anne, c. 14, s. 6, it has been been provided that a landlord may distrain witldyi six months after the termination of the lease^ provided his own title continues, and the same ^ See Lee v. Smidi, 9 Exch. 662. It has been held, in Ireland, that the general form of avowry given by the 11 Geo. 2, c. 19, s. 22, may be used although the rent is payable in advance. Charters v. Sherrock, Alcock & Napier, 17, 506. ■• See Bac. Ab. Distress (C). ^ Gilbert on Dist. 50 ; Co. Litt. 142 a; 7 Rep. 7 aj and Aldenburgh V. Peaple, 6 C. & F. 212, (25 E. C. L. R. 399,). DISTRESS. 207 tenant still continues in possession.*^ Upon the con- struction of this statute, it has been held that, if a landlord allow the tenant to retain part only of the property demised, after the expiration of the lease, he may distrain on that part, Nuttall v. Staunton, 4 B. & C. 51, (10 E. C. L. R. 477,) ; and it was held in Braith- waite V. Cooksey, 1 H. Bl. 465, that where the original tenant died, and his representative entered, the land- lord might *distrain within six months upon r#ipi-i that representative. '(a) ^ It is provided by ss. 6 & 7 of the 8 Anne, c. 14, that it shall << be lawful for any person or persons having any rent in arrear or due upon any lease for life or lives, or for years, or at will, ended or determined, to distrain for such arrears after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or determined ; pro- vided that such distress be made within the space of six calendar months after the determination of such lease, and during the con- tinuance of such landlords' title or interest, and during the posses- sion of the tenant from whom such arrears became due. ^ Where the possession is continued beyond the expiration of the term under a custom of the country, as, for instance, where the tenant has a customary right to leave his way-going crop in the barns for a certain time after the lease has expired, the landlord may dis- train, although six months have elapsed since the expiration of the lease. Beavan r. Delahay, 1 H. Bl. 5 ; Griffiths v. Puleston, 13 M. & W. 358.* Where a tenant remained on the premises a few days after the expiration of the term, and after the new tenant had entered, and then went away leaving some cattle on the premises, it was held that there was no continuance of the possession after the (f?) The common law upon the subject of distresses for rent has been adopted very generally in the United States, and the legislatures of the different States have, with more or less conformity, adopted ^he amendments which have been from time to time engrafted on the law by the Parliament of Great Britain. In Pennsylvania and New York, for instance, the provisions of 8 Anne and 11 George 2, have been re-cnactcd with some variations. The Pennsylvania Act 208 LANDLORD AND TENANT. The iitili^ of this statute of Queen Anne is obvious when it is considered that, before it was passed, if rent had been reserved payable, say at Lady-day and at tenant had hhnself left. Taylorson v. Peters, 7 A & E. 110, (34 E. E. C. L. R. 45,). It has been held at Nisi Prius that this statute does not apply where a tenancy is put an end to by the tenant's wrongful disclaimer, but only where it is determined by lapse of time, or perhaps by notice to quit. Doe d David v. Williams, 7 C. & P. 322, (32 E. C. L R. 635,). An avowry for rent arrear, which is framed at common law and not under this statute, must allege that the tenancy was continuing at the time when the distress was made. Williams v. Stiven, 9 Q. B, 14, (58 E. C L. R. 14,). of 21st March, 1772, § 14, follows the provisions of the statute of Anne as to the right of distress after the expiration of the lease, provided such distress be made during the lessor's title or interest ; but it omits the provision that the distress be made within six months after the determination of the lease ; and it omits the last words during the possession of the tenant from whom such arrears are due. With respect to these last words, Judge Huston says in Clifford v. Beems, " perhaps the omission of them may not be found to affect the meaning of the provision ;" referring probably to the fact, that unless where statuary exceptions existed, the distress could only be made upon the premises. Clifford v. Beems, 3 Watts, 246 ; Bukup v. Valentine, 19 Wend. 554 ; Rogers v. Brown, 1 Spears, 283 ; Lougee v. Colton, 2 B. Munroe, 115. If the goods are sold in good faith to an innocent purchaser, although such purchaser be the succeeding tenant, and the goods yet remain upon the premises, they cannot be dis- trained. Clifford V. Beems, 3 Watts, 246. See Bell v. Potter, 6 Hill, 497 ; Weber v. Shearman, 3 Hill, 547, and 6 Hill, 20. In North Carolina and Missouri the right of distress for rent is not known. Dalgleish v. Grandy, C. & N. 22 ; Crocker v. Mann, 3 Mis. 472. As a general rule to authorize a distress for rent in the United States there must be a certain rent, or a rent which can be reduced to a cer- tainty, reserved. Wells v. Hornish, 3 Penn. R. 30 ; Steel ?;. Thomson, ib. 34 ; Scott v. Fuller, ib. 55 ; Jacks v. Smith, 1 Bay, 315; Robert^ V. Tennell, 4 J. J. Marshall, 160; Benoist v. Sollee, 1 Brevard, 251 ; Reeves v. McKonzie, 1 Bailey, 497 ; Valentine v. Jackson, 9 Wend. 302, where it was held that if a rent certain be reserved, subject to a DISTRESS. ' 209 Michaelmas, the landlord would have lost his remedy by distress for his last half-year's rent; for he conld not have distrained for it before it was due, and it would not have become due till the last moment of Michaelmas-day, and then the term would have been at an end.^ ^ Therefore, as Lord Coke says, it was usual in his day to reserve the last quarter's rent in advance. Co. Litt. 47 b. Before leaving this subject it may be useful to call attention to some of the cases, which show lolien a landlord may distrain in the sense of — under what circumstances he may exercise this right. It is a general rule, that no distress can be made for rent, unless there is an actual demise at a fixed rent. See Hegan v. Johnson, 2 Taunt. 148 ; Dunk v. condition to be performed by the tenant, the landlord may distrain notwithstanding the condition, unless the tenant shows a performance. When the rent is reserved in iron or grain, or any other commodity, it may be distrained for, provided it is capable of being reduced to a certainty. Thus where the rent of a mill was expressed to be " one- third of the toll which the mill grinds." The Supreme Court of Pennsylvania held the rent might be distrained for. Judge Rogers, in pronouncing the opinion of the Court, said, <' If the tenant keeps an account of the toll, which it is his duty to do, the rent may be reduced to the utmost certainty. Nor can we perceive the danger which may arise to the tenant, for his rights are abundantly pro- tected. By an offer to comply with his contract, with which he is best acquainted, he can defeat the landlord. And for an excessive distress the law, as in other cases, has provided him an ample remedy." Fry v. Jones, 2 Rawle, 12 ; Jones v. Gundrim, 3 W. & S. 531; Rinehart v. Olwine, 5 W. & S. 163; Smith v. Colson, 10 Johns. 91 . Contra Clark v. Fraley, 3 Blackf. 264 ; Bowzer v. Scott, 8 Blackf. 86. New York, in 1846, abolished the distress for rent, and it has been held that distress for rent is not an essential part of the con- tract between landlord and tenant; that it was merely a remedy which the legislature might alter or abolish without such act being liable to any constitutional objection. Guild v. Rogers, 8 Barb. Sup. Court, 502. 14 210 LANDLORD AND TENANT. [*162] *Next, with regard to the mode of making the distress. The landlord may either distrain in Hunter, 5 B. & A. 322, (7 E. C. L. R. 115,) ; Knight v. Benett, 3 Bing. 361, (11 E. C. L. R. 181,); Regnart v. Porter, 7 Bing. 451, (20 E. C. L. R. 204,) ; Risely v. Ryle, 11 M. & W. 16 ;* and Wat- son V. Waud, 8 Exch. 335. But a landlord may distrain on a tenancy at will if a yearly rent is reserved, Litt. s. 72 ; and a rent is sufficiently certain which may be reduced to certainty by computa- tion. See Daniel v. Gracie, 6 Q. B. 145, (51 E. C. L. R. 145,) ; and Doe d. Edney v. Benham, 7 Q. B. 976, (53 E. C L. R. 976,) ; cited ante^ pp. 88-95, notes. The right to distrain may also exist by express agreement between the parties, although the subject- matter in respect of which this power is reserved may not be strictly a rent; therefore, where by a contract between a landlord and a tenant, it was stipulated that a penalty should be paid for every yard of hay which was not spent upon the land, and that it should be recoverable by distress as for rent in arrear, it was held that it might be so recovered ; but that as it was not a rent, the landlord could not avow for it in the general form which is given by the 11 Geo. 2, c. 19. Pollitt V. Forrest, 11 Q. B. 949, (63 E. C. L. R. 949,). Another general rule is, that a landlord who has no reversion cannot distrain ; therefore if a lessee for years assigns his term, reserving a rent, he cannot distrain at common law, nor under the 4 Gen. 2, c. 28, s. 5, for a rent-seek cannot, it is said, issue out of a term of years. See Newcomb ?;. Harvey, Carth. 161; v. Cooper, 2 Wils. 375; Smith V. Mapleback, 1 T. R. 441 ; Preece v. Corrie, 5 Bing, 24, (15 E. C. L. R. 453,) ; and Pollock v. Stacy, 9 Q. B. 1033, (58 E. C. L. R. 1033,). It does not, however, appear to be quite clear that a rent-seek cannot issue out of a term of years, for the passage in the Year Book of 45 Edw. 3, which is cited incorrectly in v. Cooper, and correctly in Bro. Ab. Dette, pi. 39, as the authority for this position, has a qusere added to it ; and see also Co. Litt. 147 b. A tenant from year to year, who underlets from year to year, has how- ever a sufficient reversion to distrain. Curtis v. Wheeler, 1 Moo. & M. 493, (22 E. C. L. R. 572,). With respect to the limitation in point of time on the right to distrain, only six years' arrears of rent are recoverable by distress, 3 & 4 Wm. 4, c. 27, s. 42. But the power to distrain for this limited amount does not appear to be DISTRESS. 211 *person, or, as is now the practice, by an r#ipq-i authorized agent or bailiff. The authority is lost hy reason of the mere non-payment of the rent for any time short of the period after which the right to recover the land itself is gone. Where the right to the land is at an end, as there is no longer any tenancy or any reversion, the right of distress ceases also. Where the land continues to be held under a lease in writing, and the rent is simply withheld, the non-payment of it for any number of years will not afifect the interest of the landlord or his representatives in the land itself. Doe d. Davy v. Oxenham, 7 M. & W. 131;* and Sugden's Essay on the Real Property Statutes, c. I. s. III. But where there is no lease in writing, the right to recover the land is lost so soon as twenty years have elapsed from the time at which the right of action in this respect has accrued to the landlord, or to any person through whom he claims ; and this time, when the receipt of rent has been discontinued, is the last time at which the rent was received. See the 3 & 4 Wm. 4, c. 27, ss. 2, 3, & 8. By s. 2 of this act, it is provided that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twenty years next after the right of entry, distress or action has first accrued. But this section has been held not to apply to rents reserved on a demise, but to be confined to rents existing as an inheritance distinct from the land, and for which, before this act, the party entitled to them might have had an assize. See Paget v. Foley, 2 Bing. N. C. 679, (29 E. C. L. R. 714,); Grant v. Ellis, 9 M. & W. 113 ;* Doe d. Angell V. Angell, 9 Q. B. 328, (58 E. C. L. Pt. 328,) ; The Dean of Ely V. Cash, 15 M. & W. 617 ;* and Owen v. De Beauvoir, 16 M. & W. 547 ;* S. C. 5 Exch. 166. The only way, therefore, in which it can affect the right of making a distress, is by its operation in destroying the right to recover the land itself after the period of limitation which it mentions. By an act passed in the same session, the 3 & 4 Wm. 4, c. 42, s. 3, a limitation of twenty years is imposed on actions of debt for rent upon an indenture of demise, but this statute does not mention distresses. See as to the construction of these acts, the cases last cited, the notes to Nepean v. Doe, 2 Smith's L. C. 396 ; and Humfrcy v. Gery, 7 C. B. 567, (62 E. C. L. R. 567,). There is another general rule limiting the right of a landlord to dis- train : namely, that after a distress for rent has once been made, no 212 LANDLORD AND TENANT. [*164] usually given by *an instrument called a loar- second distress will be valid for the same rent where enough might have been taken under the first distress, or where if enough has been taken under it, the distress has been afterwards voluntarily abandoned. See Dawson v. Cropp, 1 C. B. 961, (50 E. C. L. R. 961,). This rule is illustrated, and the limitations on it are explained in Bagge, app., V. Mawby, resp., 8 Exch. 641, lu this case a landlord dis- trained upon the goods of a tenant, who had previously committed an act of bankruptcy. Before any sale took place he withdrew the distress without obtaining payment of the rent, owing to a notice from one of the creditors of the tenant that he was taking proceedings in bankruptcy against him j but at that time no assignee had been appointed. The landlord afterwards distrained a second time for the same rent. The Court held that as he had abandoned the first dis- tress on account of a mere threat, which he ought to have disregarded, and without any sufficient excuse, the second distress was illegal. << There is nothing more cleaP'," said Baron Parke, in delivering judgment, " than this, that a person cannot distrain twice for the same rent, for if he has had an opportunity of levying the amount of the first distress, it is vexatious in him to levy the second, unless there be some legal ground for his adopting such a course. ... If there has been some mistake as to the value of the goods, and the landlord fairly supposed the distress to be of the proper value at the time of levying the first distress, and he afterwards finds it to be insufficient, he may then distrain for the remainder; or, if the tenant has done anything equivalent to saying, ' Forbear to distrain now, and postpone your distress to some other time ;' in such cases, the landlord may distrain a second time. But if there is a fair oppor- tunity, and there is no lawful or legal cause ichy he should not work out the payment of the rent hy reason of the first distress, his duty is to work it out by the first distress, and he cannot distrain again. . . The principle upon which, as a general rule, a landlord cannot dis- train twice is, that he must not vex his tenant by the exercise, upon two occasions, of this summary remedy." Finally, it must be observed that the discharge of the tenant under the bankrupt acts does not take away the right to distrain. Briggs v. Sowry, 8 M. & W. 729 ;* Newton v. Scott, 9 M. & W. 434 f S. C 10 M. & W. 471.* Nor is it any objection to a distress that after the rent became DISTRESS. 213 rant of distress.^ {a) But whether the landlord or the bailiff distrain, *care must be taken that the r#ipr-i outer door be open at the time of making the distress, if it be made in a dwelling-house, for this is one of the cases in which the maxims holds, that due, the tenant petitioned the Insolvent Court, inserted the rent in his schedule, and was opposed in respect of it by the landlord, but obtained his discharge. Phillips v. Shervill, 6 Q. B. 944, (51 E. C. L. R. 944,). ^ The warrant of distress does not require a stamp. Pyle v. Par- tridge, 16 M. & W, 20.* It should be signed by the landlord, but the signature of one joint tenant is sufficient if the others do not dissent. Robinson v. Hoffman, 4 Ring. 562, (13 E. C. L. R. 637,). A warrant which directs the bailiff to distrain one sum composed of several rates, is wholly bad, if one of the rates is illegal. Blilward v. Caffin, 2 W. Bl. 1330; Sibbald v. Roderick, 11 A. & E. 38, (39 E. C. L. R. 21,). But it is otherwise, if the amount claimed in respect of both demands is mentioned, and the legal part can be distinguished from the illegal. Skingley v. Surridge, 11 M. & W. 503 ;* see also Clark V. Woods, 2 Exch. 394. A subsequent ratification by the landlord of the bailiff's authority is as effectual as a previous com- mand. Bro. Ab. Traverse per sans ceo. pi. 3. Where a landlord gives a warrant to distrain, he impliedly authorizes the bailiff to receive the rent if tendered. Hatch v. Hale, 15 Q. B. 10, (69 E. C L. R. 10,). A distress may be made for one rent, and the landlord may avow for another. See Fitz. Ab. Acotcrie, pi. 232; the judg- ment of Lord Kenyon in Crowther v. Ramsbottom, 7 R. 657, and the judgment of Baron (then Mr. Justice) Parke in Lucas v. Nockells, 10 Biag. 172, (25 E. C. L. R. 87,). And if a person having autho- rity to distrain for rent due to another, says, at the time, that he distrains for rent due to himself, he may, nevertheless, justify as the bailiff of the person to whom the rent is really due. Trent v. Hunt, 9 Exch. 14. (a) In Pennsylvania the warrant need not be in writing. Jones V. Gundrim, 3 W. & S. 531 ; Fremciscus v. Reigart, 4 Watts. 98 ; aliter in Georgia and formerly in New York. Bigelow v. Judson, 19 Wend. 229. 214 LANDLORD AND TENANT. every man's house is ids castle ; but, if the outer door be open, the inner doors may afterwards be broken open, as in case of an execution. See Bro^vning v. Dann, Bidl, N. P. 81.^*^ (a) There is a curious case in 4 Taunt. 562, Gould v. Brads tock, in Avhich the tenant occupied a paper mill, over which was a room in w^hich the landlord resided. It happened that the wheel of the mill rose higher than the level of the floor of the upper apartment, and, in order to hide it from view, the landlord had placed boards over it, which were no part of the ceiling of the mill, but put entirely for his own convenience. Having occasion to distrain, his v*^rc~\ bailiff took away these *boards, and came down through the apertiu*e left for the wheel, in order to distrain ; and it was held that trespass would not lie against him for so doing. In order to render the distress complete, there must be a seimire of the property distrained upon, but a very slight act amounts, in contemplation of law, to such a seizure ; thus, walking round the premises, making an inventory of the articles there, and declaring that they were seized as a distress for the rent due, has been held to amount to an actual seizure of them. See ^° See Co. Litt. 161 a. The outer door of a stable, although not within the curtilage, cannot be broken open. Brown v. Glenn, 16 Q. B. 254, (71 E. C. L. R. 254,). But the landlord may open the outer door by the usual means adopted by persons having access to the building; as by turning the key, lifting the latch, or by drawing back the bolt. Ryan v. Shilcock, 7 Exch. 72. In cases within the 11 Geo. 2, c. 19, s. 7, there is, as has been already mentioned, an exception to this rule. (a) Williams v. Spencer, 5 Johns. £52; State v. Thackaw, 1 Bay, 358; State v. Armfield, 2 Hawks, 246; Curtis v. Hubbard, 1 Hill. 337. DISTRESS. 215 Hutchins v. Scott, 2 M. & W. 809 ;* Swann v. Earl of Falmouth, 8 B. & C. 4.^^, (15 E. C. L. R. 227,)'; Wood V. Nmin, 5 Bing. 10, (15 E. C. L. R 445,).^i As soon as the distress is made, the person distrain- ing ought to make an inventory of the property dis- trained, and serve it, with a notice of the distress, on the tenant, either personally or at his place of abode ; or, if there be no house upon the premises, then upon the most conspicuous part of them ; this is by stat. 2 "W. & M. sess. 1, c. 5, s. 2, on the construction of which you may consult Walter ^^ Rumbal, 1 Ld. Raym. 53 ; Moss v. Gallimore, 1 Dougl. 278.^^ I shall " See Hartley v. Moxham, 3 Q. B. 701, (43 E. C L. K. 933,). In this case the goods of a stranger had been seized as a distress, but before any notice to him, the distrainer allowed him to take them off the premises for a temporary purpose, intending that they should be returned, and they were afterwards returned ; it was held that there was no abandonment of the distress. Kerby v. Harding, 6 Exch. 234. 12 The words of this section are as follows : 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 shall not, within five days next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion house, or other most notorious place on the premises charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff according to law, that 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 with the constable of the hundred, parish or place, where such distress shall be taken (who are hereby required to be aiding and assisting therein), cause the goods and chattels so distrained to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable are hereby empowered to swear,) to appraise the same truly, according to the best of their understandings ; and after such appraisement shall and may lawfully sell the goods and chattels so distrained for the best price that can be 216 LANDLORD AND TENANT. |.^, ,.^-. have *occasion to say much more presently re- garding the provisions of this statute. What gotten for the same, towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable for the owner's use." The notice required by the statute must be in writing, for it is to he left at the chief mansion house. Wilson v. Nightingale, 8 Q. B. 1034, (55 E. C L. R. 1034,). It should men- tion distinctly the goods which are taken, and give clear information in this respect to the tenant or person to whom they belong, and should also state the amount of rent in arrear. In Kerby v. Harding, 6 Exch. 234, the notice stated that the landlord had distrained the several goods and chattels, which were specified in a schedule. The schedule mentioned certain goods, not including those of the plaintiff, who was a stranger, and had deposited some articles belonging to him on the premises, and it concluded, <• and all other goods, chat- tels, and effects on the said premises, that may be required in order to satisfy the above rent, together with all necessary expenses." It was held that this notice was too vague to justify the sale of the plaintiff's goods. In another case, however, the notice stated that the broker had taken the goods mentioned in the inventory under- written. The inventory mentioned specifically certain goods, and then proceeded, " and any other goods and effects that may be found in and about the said premises, to pay the said rent and expenses of this distress." It appeared that all the goods on the premises were intended to be taken, and the Court refused, apparently with some hesitation, to hold that this notice was insufficient. Wakeman v. Lindsey, 14 Q. B. 625, (68 E. C. L. R. 625,). The want of a notice does not render the distress invalid. Trent v. Hunt, 9 Exch. 14. In Taylor v. Henniker, 12 A. & E. 488, (40 E. C. L. R. 245), a landlord distrained for a larger amount of rent than was due, and gave a notice of distress, mentioning this incorrect amount. It was held that an action on the case lay against him at the suit of the tenant, although the goods distrained were of less value than the rent really due, and before the sale took place, a second notice had been given claiming only the amount really due. But this case has been overruled by a later decision in the Exchequer Chamber. See DISTRESS. 217 I said, applies to *distresses regularly made r*i/-o-| upon the demised premises, but there is one case to which I have not yet adverted, in which the legislature has instituted a peculiar law applicable to those cases in which the tenant has, for the purpose of preventing his landlord's distress, fraudulently removed his goods from the demised premises. This law, as I have stated in a previous Lecture,^^ is applicable only to a case in which the tenant has removed Ms oimi goods^ for it is obvious that, though it may be right to prevent him from withdrawing from the landlord the security on which he has relied, there would be no jus- tice in preventing a stranger who had unconsciously allowed his property to be on premises liable ,to rent, from saving himself from their loss, by withdrawing them at any, even the very latest moment.(a) But, with regard to the tenant himself — the *legislature has thought fit to guard against a r^ipq-i case which frequently happened; that, namely, of his taking all his property away from the premises demised, so as to leave the landlord without any dis- tress at all. And accordingly, it is enacted by stat. 1 1 Geo. 2, c. 19, s. 1, that if any tenant fratidulently or clandestinely carry away his goods to prevent the land- Tancred v. Leyland, 16 Q. B. 669, (71 E. C. L. K. 669,). And in the still later case of Stevenson v. Newnham, 13 C. B. 285, (76 E. C. L. R. 285), it was held by the same Court, that a count in case for disti-aining for more rent than was due, was bad, although it alleged that the distress was made maliciously ; for an act which does not amount to a legal injury is not actionable, even if done with a bad intent. " Ante, p. 155. (a) Adams v. La Comb. 1 Dall. 440. Frisbey v. Thayer, 25 Wend. 396. See ante, note to page 154. 218 LANDLORD AND TENANT. lord from distraining, the landlord ma}-, within thirty- days next after such carrying away, take and seize the goods ivJierever they may he found, and sell and dispose of them in the same way as if they had been found upon the premises.^'^ It is, indeed, provided by the second section of the Act, that they shall not be sold if already disposed of to hona fide purchasers, an enact- ment the justice of which is obvious.^° In section 7 is contained the part of the enactment to which I am now princij)ally adverting ; for, with regard to the right to seize such goods, I have already, as you may re- member, mentioned it while treating of the question what goods may be taken. The mode of taking them is chalked out by the 7th section, which enacts that where any goods fraudulently or clandestinely conveyed away shall be kept in any house, building, or place — (I don't cite the precise words of the Act, for they are very long, and. to read them at length woidd take up too much of our time, and you may consult them at leisure) — but the effect is, that wherever the goods be secured, it shall be la^vful *for the landlord or r*1701 ... '- -* his agent to distrain them, first calling to his aid the constable or peace officer of the place, and, in the case of a dwelling-house, oath being first made be- fore a justice of reasonable ground for suspecting that the goods are there, to break open doors — which, as I have already explained, cannot be done in an ordinary case, — and make distress upon the goods.^°(a) " See ante, p. 154. " See ante, p. 155. ^^ See as to the attendance of a constable in these cases, Rich v. Woolley, 7 Bing. 651, (20 E. C. L. R. 291,); Cartwright v. Smith, 1 M. & Rob. 284, It is not necessary that there should be a previous request to open the doors. Williams v. Roberts, 7 Exch. 618. (a) The first and second sections of the act 11 Geo. 2, c. 19, have DISTRESS, 219 This is an enactment of considerable severity, although a very just one, and it has accordingly been strictly construed. It has been held that a removal of goods, to fall within it, must have taken place after the rent has become due. Watson v. Main, 3 Esp. 15 ; Furneaux v. Fotlierhy, 4 Camp. 136 ; Rand v. Vaughan, 1 Bing. N. C. 767, (27 E. C. L. E. 854,)." It is also held in Aslimore v. Hardij, 7 C. & P. 501, (32 E. C. L. K. 729,) that the landlord cannot seize after he has conveyed away the reversion, for he has then ceased to be landlord, and consequently does not fall within the letter of the Act. The statute being a very important one, I wiU refer you to a few of the cases decided on it— Parry v. Duncan, 7 Bing. 243,^ (20 E. C. L. R. 115,); Thornton v. Adams, 5 M. & S. 38; Welch v. Myers, 4 Camp. 368.^' The distress having been made, the next question is, icliat is to he done ivith it ? And, in order *per- ^, ^, r 1 7 1 1 fectly to comprehend the present state of the ■- -" law upon this subject, it will be necessary to show 17 But see Dibble v. Bowater, 2 E. & B. 564, (75 E. C. L. R. 564,) ; and ante, p. 155, note. 1^ Ante, p. 154. been incorporated in the Pennsylvania Act of March 21st, 1772. The seventh section was not incorporated, and has never been followed. It was early decided under this statute that the goods of a stranger could not be followed and distrained. Adams v. Lacomb, 1 Dall. 440. The goods of the tenant's assignee may be followed and seized, if clandestinely removed. Jones v. Gundrim, 3 W. & S. 531, but not those of the tenant after a hand fide sale to an innocent purchaser. Clifford v. Beems, 3 Watts, 246. And it has been held to be a trespass to enter the house of a stranger to search for and distrain goods fraudulently removed, if no goods of the tenant are there found. Ilobbs v. Geiss, 13 S. & R. 417. See ante, note to page 154. 220 LANDLORD AND TENANT. briefly how the matter stood at common law, and to enumerate the changes which have since taken place in their order. At common law, the distress was but a pledge for the rent arrear, the landlord was entitled to keep it as a security imtil such rent was satisfied, but he could do no more ; if he sold it he became a trespasser ah initio^ and all his proceedings were void ;^^ the general prin- ciple being, that, when a man abuses an authority given him by law to take another's goods, or enter on another's premises, the abuse renders him a trespasser, in contemplation of law, from the very commencement of the transaction. This principle, which you will find laid down and discussed in the Six Carpenters' Case, 8 Co. 146, is no longer, as I shall by and by show you, applicable to distresses for rent arrear. At common law, however, it was so, and its efi'ect was that, if the landlord abused his authority to distrain, he became a trespasser from the very beginning of the transaction. And a sale of the distress, which he had then no right to sell, was clearly such an abuse.-^ *The distress, as I have said, was at com- r*1721 • •- -^ mon law a pledge, but it was a pledge mth ^^ See Gilbert on Dist. 67. Distresses damage feasant are not affected by the 2 Wm. & M. sess. 1, c. 5, and this rule of the com- mon law is therefore still applicable to them, ib. ^ See the notes to this case, 1 Smith's L. C. 65. Although the 11 Geo. 2, c. 19, s. 19, enacts that where a distress is made for rent which is due, any irregularity or unlawful act afterwards done shall not make the landlord a trespasser ah initio, he may still become such by seizing goods which are not distrainable. But if he distrains goods which are privileged as well as other goods which are liable to be distrained, he is only a trespasser as to the former. Harvey v. Pocock, 11 M. & W. 740.* lie appears, however, to be in this case a trespasser ah initio as to the entry. Price v. Woodhouse, 1 Exch. 559. See also post, p. 176, note (25.) DISTRESS. 221 which the landlord could not deal as he thought proper. It was his duty to impound it in a common pound,, the state of which he w'as bound to take care should be suitable to the nature of the distress ; thus, if the articles distrained were of a perishable nature, he was to secure them in a pound covert, or weather- proof; if they were cattle, in an open pound, whither the owner might come to feed them ;^^ unless, indeed, he chose to take upon himself the responsibility of doing so. The state of the common law on this subject you will find discussed in the case of Wilder v. Speei\ 8 A. & E. 547, (35 E. C. L. R. 450,) which was a case of a distress damage feasant , in which the common law on this subject remains unaltered. Subject, however, to this rule the landlord might have taken the distress to any pound he pleased, a right fraught with the greatest hardship to the tenant who was obliged to feed his cattle while they remained in the pound, if it were a public *one, though ^ if the landlord put them into a private one, then '- ^ indeed, he was obliged to supply them with sustenance. But if he put them in a puhlic pound, they lay there at the tenant's risk, and, if they starved, it was his loss, the landlord w^as not answerable.^'^ Now, indeed, by a just and humane law, stat. 5 «& 6 W. 4, c. 59, the person who distrains cattle, for whatever cause, is 21 See Gilbert on Dist. 62 ; 2 lust. 100 ; Co. Litt. 37 b; and Bac. Ab. Distress (D). The distrainer could not at common law, and can- not now, work or use the distress, for he has no property in it, but only a power by law to take it, ih. He is not entitled to bind or tie the beasts distrained in the pound, even to prevent their escape. Gilbert on Dist. 65. 22 See Bac. Ab. Distress (D), and Doct. and Stud. p. 14 ; Dial. 1, c. 5. 222 LANDLORD AND TENANT. bound to supply them with food ;-^ but, at common law, the matter was as I have stated it to you. 23 It is enacted by s. 4 of this act that, " every person who shall impound or confine, or cause to be impounded or confined, any horse, ass, or other cattle or animal, in any common pound, open pound, or close pound, or in any inclosed place, shall and he is hereby required to find, provide, and supply such horse, ass, and other cattle or animal so impounded or confined, daily with good and sufficient food and nourishment for so long a time as such horse, ass, or other cattle or animal shall remain and continue so impounded or confined as afore- said ; and every such person who shall so find, provide, and supply any such horse, ass, or other cattle or animal, with such daily food and nourishment as aforesaid, shall and may, and he and they are hereby authorised and empowered to recover of and from the owner or owners of such cattle or animal not exceeding double the full value of the food and nourishment so supplied to such cattle or animal as aforesaid, by proceeding before any one justice of the peace within whose jurisdiction such cattle or animal shall have been so impounded and supplied with food as aforesaid, in like manner as any penalty or forfeiture, or any damage or injury, may be recovered under and by virtue of any of the powers or authorities in this act contained, and which value of the food and nourishment so to be supplied as afore- said, such justice is hereby fully authorised and empowered to ascer- tain, determine, and enforce as aforesaid, and every person who shall have so supplied such food and nourishment as aforesaid 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 horse, ass, or other cattle or animal, openly at any public market (after having given three days' public printed notice thereof) for the most money that can then be got for the same, and to apply the produce in discharge of the value of such food and nourishment so supplied as aforesaid, and the expenses of and attending such sale, rendering the overplus (if any) to the owner of such cattle or animal." By s. 5, it is provided that, where cattle have been impounded with- out sufficient food more than twenty-four hours any person may enter into the pound and supply them with food without being liable to an action of trespass or other proceeding. It will be observed that this act DISTRESS. 223 *Now it is hardly necessary to observe, that ^ this state of the law was fraught with hardship ^ J to the tenant, so long as the landlord had a right to drive the cattle to a distance ; and, therefore, the first improvement in the law was made by stat. 52 Hen. 3, cap. 4, [Statute of Marlebridge] which prohibited the person distraining from driving the distress out of tlie county.{a) But, even this being found too great a latitude, stat. 1 & 2 Philip & Mary, c. 12, was passed, which directed that no distress of cattle should be aiFords no means of recovering the value of the food supplied, except where it is furnished by the party impounding. Mason v. Newland, 9 C. & P. 575, (38 E. C. L. R. 337.). If several horses are distrained, the distrainer may sell one or more of them for the expenses of all. But in pleas to an action of trespass for taking and converting the horses sold it must be alleged that it was necessary to sell them for the payment of the expenses, Layton v. Hurry, 8 Q. B. 811, (55 E. C. L. R. 811,). After a sale, under this act, the distrainer can only keep the value of the food and the expenses of the sale ; for, subject to this deduction, the statute requires that the overplus should be returned to the owner of the cattle. Mason v. Newland, uhi sup. (a) There has been no re-enactment in Pennsylvania of this section of the Statute of Marlebridge, nor is there anything in the Act of March, 1772, prescribing where the goods are to be impounded. The report of the judges, however, recommends the 4th Chapter of 52 Henry III. to be incorporated. The 1st section 1 and 2 Philip and Mary, c. 12, is also reported as in force and to be incorporated. But it was said in Woglaw v. Cowperthwaite, 2 Dall. 68, to have been the usage in Pennsylvania, both before and since the Act of 1772, to impound the distress on the premises, and there to appraise and sell it, agreeably to the statute of 11 George II. c. 19, though the clause of that statute which gives this power is not contained in the Act of Assembly, and that the construction of the statute 2 W. & M. c. 5, that the distrainer may leave the distress on the premises for the five days mentioned in the act, but becomes a trespasser after that time, will hold under the act of 1772. 224 LANDLORD AND TENANT. driven out of the hundred^ [rape, ivapentaJce, or laiTie] where it was taken, except to an open pound [in the same shire] not above three miles from the place of taking it. * And, at last, it appeared so much ^ ' -' better both for the landlord and the tenant that the distress should not be taken off the ]3remises at all, but should remain there in a situation equally and easily accessible to both, that by stat. 11 Geo. 2, c. 19, s. 10, it was enacted that "in cases of distress for rent, the person distraining may impound or other- wise secure the distress on such part of the premises as shall be most convenient. "^^ Upon this statute, which is the law now in force with regard to the im- pounding a distress for rent, it has been held that the landlord ought not to deprive the tenant of the enjoy- ment of his whole house, or even interfere with it ; but ought to put the things distrained into one room, if that can be conveniently accomplished, unless, indeed, he obtains the tenant's consent to leave them in their ordinary situations, of which consent very slight evi- dence AviU be sufficient, as it is so obviously the tenant's ovro. interest to grant it. In the absence of consent, it is obvious that the part of the premises to be taken for the purpose of securing the distress will, in each case, depend on the nature of the distress, and of the premises in the particular case. In some instances it may be, and indeed has been, necessary to ^ occupy the whole premises; *for instance, ■- -* when they were a small cottage. See on the ^* The words of this section are, " 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." DISTRESS. 225 above points, Washhorn v. Blacky 11 East, 405 n; Cox V. Painter, 7 C. & P. 767, (32 E. C. L. R. 862).-^ 25 See also Woods v. Durant, 16 M. & "W. 149.* When a tender of the rent has been made, it often becomes material to inquire into what constitutes an impounding ; for, as is said by Lord Coke in the Six Carpenters' Case (8 Rep. 146), "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, wrongful ; tender after the impounding makes neithel- the one nor the other wrongful, for then it comes too late, because then the case is put to the trial of the law to be there determined." And these rules apply to goods seized for rent, as well as to cattle taken damage feasant. Ladd v. Thomas, 12 A. & E. 117, (40 E. C. L. R. 67,)- See as to what is a sufficient impounding to make a tender too late. Firth V. Purvis, 5 T. R. 432; Browne v. Powell, 4 Ring. 230, (13 E. C. L. R. 480) ; Thomas v. Harries, 1 M. & Gr. 695, (39 E. C. L. R. 607) ; Ellis v. Taylor, 8 M. & W. 415 ;* Peppercorn v. Hofman, 9 M. & W. 618.* If a sufficient tender is made before the distress, the remedy is replevin or trespass ; if it be made after the distress and before the impounding, detinue is the right form of action, Gulliver v. Cosens, 1 C. B. 788, (50 E. C. L. R. 788,). In Ladd v. Thomas, Lord Denman, C. J., was of opinion that trespass was the proper form of action for continuing on the premises to keep possession of the goods distrained after the distress had ceased to be lawful. See also Pepper- corn V. Hofman, and Ash v. Dawnay, 8 Exch. 237. In West v. xvibbs, 4 C. B. 172, (56 B. C. L. R. 172), however, which was an action of trespass for seizing goods, it was held, by the Court of Common Pleas, that a landlord, who had, after the impounding, accepted the rent and the expenses of distress, could not be treated as a trespasser merely because he retained the possession of the goods distrained, although his refusal to give them up might render him liable in trover. It must be observed that since the Common Law Procedure Act, 1852 (15 & 16 Vic. c. 76), the distinctions between different actions, except so far as they are matter of substance, are no longer important, and indeed have ceased to exist. The 6 & 7 Vic. c. 30, which was passed. to amend the law relating to pound-breach and rescue, and which gives power to two justices in certain cases to try summarily offences of this description, does not apply where the cattle are seized under a distress for rent. See s. 1. 15 226 LANDLORD AND TENANT. P^, ^^, With regard to a distress of growing crops, L -1 *which, though not distrainable at common law, may, as I stated in a former Lecture,^® be distrained by virtue of stat. 11 Geo. 2, c. 19, s, 8. The same section directs how they shall be impounded after they have been cut, gathered, and carried : the Act directs, that they shall he laid up in hams, or other pi'oper places on the premises, or as near thereto as may he if there he none on the p)remises.''{ci) vSuch is the state of the law with regard to the IMPOUNDING the distress, which is the first step to be taken with regard to it ; and next comes the inquiry, what shall become of it after it has been impounded 1 Now I have stated, that at common law it was a mere pledge, the landlord could not have disposed of it ; he might detain it till the rent was paid, but he could do 25 Ante, p. 149. ^' This section enables the landlord to distrain the crops, « and the same to cut, gather, make, cure, carry, and lay up, when ripe, in the barns, or other proper place on the premises so demised or holden ; and in case there shall be no barn or proper place on the premises so demised or holden, then in any other barn or proper place which such lessor or landlord, lessors or landlords, shall hire or otherwise procure for that purpose, and as near as may be to the premises." (a) The seventh section of the Pennsylvania Act of 1772, autho- izes growing crops to be distrained, but there is no provision similar to the 8th section of 11 George II. ch. 19, which directs that they shall be laid up in barns. The Pennsylvania Act authorizes a sale, and declares that " the purchaser of any such corn, grass, hops, roots, fruits, pulse, or other product, shall have free egress and regress to and from the same where growing, to repair the fences, from time to time, and when ripe to cut, gather, make, cure, and lay up and thrash, and after to carry the same away in the same manner as the tenant might legally have done, had such distress never been made.'^ DISTRESS. 227 no more. This was a bad law both for landlord and tenant. It did not always procure satisfaction of his rent for the one, while it often had the effect of depriving the other of all means of satisfying it. It was, therefore enacted by stat. 2 Wm. & M., sess. 1, c. 5, s. 2, " That where any goods or chattels shall be distrained for rent reserved and due on any „ r 1 7Si *contract, and the tenant or owner of them ^ -■ shall not witldn five days {jiexf] after the distress mid notice thereof, (with the cause of such taking) left at the chief mansion house, or other most notorious place upon the premises charged with the rent, replevy the same ; the person distraining may, with the sheriff or under-sheriff of the county, or constable of the hun- dred, parish, or. place where the distress was taken, cause the distress to be aiJpraised by two sworn ap- praisers, whom the sheriff or other officers shall swear to appraise them truly, and, after such appraisement, may sell the same towards satisfaction of the rent and the charges of the distress and appraisement, leaving the overplus, if any, in the hands of the sheriff" or other officer for the owner's use.^^ This being the important practical enactment relative to this part of the subject, it is necessary to pay some attention to its provisions. And first you will observe, that the sale is not to take place unless the tenant omit to replevy ivithin fice days after the distress. These five days are to be reckoned inclusive of the day of the sale ; Wal- ^ lace V. Kimj, 1 H. Bl. 13 •-'^ and though, *upon L ^ '^J 23 These are not the exact words of this section, but the substance of it is given. See ante, p. 1G6, note ^^ If the overplus is not left in the hands of the sheriff, the tenant cannot bring an action for money had and received; he must sue in case under the statute. Yates V. Eastwood, 6 Exch. 805. 2^ This case has been overruled. It i.'^ now held that under this 228 LANDLORD AND TENANT. the one hand, the landlord must not incumber the premises by keeping the goods there after the five days, and a reasonable time for appraising and selling them has elapsed, Griffin v. Scott, 2 Ld. Raym. 1424; yet, on the other hand, he must not sell before five times the space of twenty-four hours has completely elapsed. Harper v. Tasicell, 6 C. & P. 166. (25 E. C. L. R. 376.).'V) statute, as in otlier cases of a like kind, the days must be calculated inclusively of the last day, and exdiisireli/ of the day of taking. Robinson v. Waddington, 13 Q. B. 753, (66 E. C L. R. 753,). ^° See the last note, the cases cited, ante, p. 176, note ^^, the judgment of Baron Parke in Piggott v. Birtles, 1 M. & W. 448,* and the notes to Simpson v. Hartopp, 1 Smith's L. C. 193. As to the sale of hay, straw, and growing crops, see ante, p. 150, note ^^ (a) In Pennsylvania, in the construction of the Act of 1772, it is held that the day of making the distress is to be excluded in comput- ing the time, and Sunday is not to be counted as one of the five days if it happen to be the last if counted. Thus where the distress was made on Tuesday that day was excluded ; then the fifth day being Sunday was excluded also, and Monday was held to be the fifth day after the distress. " It is true," the Court say, " that a different rule has been adopted in England, in reckoning the five days allowed for a like purpose by the statute of 2 W. & M. as to the commence- ment or first day thereof. In Wallace v. King, 1 Hen. Bl. Rep. 13, the day of the distress was held to be the first of the five days. This we think, however, is rather too severe a construction against the tenant." McKinney v. Reader, 6 Watts, 37. It was held in the same case that the omission to give the notice did not render the distress unlawful, but that it was necessary to warrant a sale of the goods. The notice may be given either to the tenant or the owner. Caldcleugh v. Hollingsworth, 8 W. & S. 302. And an omission to appraise and advertise renders the landlord a trespasser ah initio. Kerr v. Sharp, 14 S. & R. 399. The Pennsylvania Act of 21st March, 1772, requires six days notice of the sale. The language of the Act is that the person distraining sliall and mai/, with the sheriff, under sheriff, or any constable, &c., cause the goods to be DISTRESS. 229 I have already spoken of the notice of distress which the Act requires. With regard to the appraisement^ the decisions are extremely fine-drawn, and the law on that subject has been rendered more complicated by stat. 57 Geo. 3, c. 93. Practically I recommend you to have the distress in every case appraised by tico sworn appraisers. The decisions, among which there is some variance, are Fletcher v. Saunders, 1 M. & E,ob. 375 ; Blsliop V. Bnjant, 6 C. & P. 484 ; (25 E. C. L. R. 536 ;) Allen v. Flick&r, 10 A. & E. 640, (37 E. C. L. R. 204.)'^ As to the swearing of the appraisers, 2' The 57 Geo. 3, c, 93, enacted that no person making any dis- tress for rent, where the sum demanded and due did not exceed 20^., should take in respect of the distress other costs or charges than those fixed by the schedule of the act ; and in the schedule a sum is allowed in respect of the appraisement, " whether by one broker or more." Allen v. Flicker, cited in the text, decided that, notwith- standing this provision, there must be two appraisers, even where the rent distrained for does not exceed 20^. appraised by two respectable freeholders ; and after such appraise- ment shall or may, after six days public notice, lawfully sell the goods for the best price that can be gotten for the same, for and towards satisfaction of the rent and the charges incurred, leaving the overplus, if any, in the hands of the sheriff, under sheriff or con- stable, for the owner's use. In Quinn v. Wallace, 6 Wh. 461, this language was said to be imperative — that the person distraining must sell ; and the proceedings under this statute were said, by Judge Kennedy, to have changed the nature of a distress, so that it is no longer a mere pledge. But that it was like to an execution with the single exception that the tenant was entitled to his replevin. The District Court for the City of Philadelphia held in E-eichenback v. Post, (not reported) that the "sheriff, under-sheriff, or constable," was only necessarily called in at the appraisement that the subsequent sale might be made without their presence or concurrence. It was held in New York also that five full days were to be given to the tenant after the day on which notice of the distress is given. Butts V. Edwards, 2 Denio, 164. 230 LANDLORD AND TENANT. they are to be sworn before the constable of the xDarish where the distress is taken. Avenell v. * Gro- \*^^^'^ Jeer, Moo. & Malk. 172; (22 E. C. L. R. 499,) Kenneij v May, 1 M. & Rob. 56.'- We have now. seen icliai the landlord is to distrain; where he is to distrain; ivlien he is to distrain; /^o^^.he is to distrain ; and in lohat manner the distress is to he disposed of. It remains to consider, what is the remedy if the distress heillegcdly levied or improperly imrsued. This divides itself into two questions ; first, what is the tenant's remedy if the distress be for a lawful demand but illegally executed, that is, if the rent be really due and a distress justifiable, but yet the pro- ceedings taken in tlie particular distress be illegal ; and secondly, what is the remedy where the distress is wholly unwarranted and unjustifiable. Now, in the first case, I have already stated, that the rule of the common law was, that if the person distraining abused the right given him by the law to distrain, his whole proceeding became null and void, and he was considered as a trespasser from the very beginning."' But by stat. 11 Geo. 2, c. 19, s. 19,(a) " When any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining or his agent, ^2 A distress, which is appraised by the person who makes it, is irregular. See Westwood v. Cowne, 1 Stark. 172, (2 E. C. L. R. 73), and the judgment of the Lord Chief Justice Best, in Lyon v. Weldon, 2 Bing. 336, (9 E. C. L. R 604,). The appraisers must be reasonably competent, but they need not be professional appraisers. Roden V. Eyton, 6 C. B. 427, (60 E. C. L. R. 427,). 2^ Ante, p. 171. (a) In Pennsylvania, where this section of the statute is not in force, the distrainer under such circumstances would be a trespasser ah initio. Kerr v. Sharp. 14 S. & R. 399. WRONGFUL DISTRESS. 231 the distress shall not be deemed unlawful, nor the dis- trainer a *trespasser ah initio ; but the party grieved may recover satisfaction in an action of '- trespass or on the case."^'^ See, on this statute, Winter- hourne v. Morgan^ 11 East. 395. A subsequent section, s. 20, allows the landlord to tender amends before ^* These are not the precise words of the statute. The true con- struction of this section has been held to be that case must be brought when the injury complained of is the subject of an action on the case, and trespass where it amounts to a trespass. The nature of the ir- regularity determines the nature of the action. See the judgment of Lord Ellenborough in Winterbourne v. Morgan, cited above. But, as has been already observed, since the Common Law Procedure Act, 1852 (15 & 16 Vic. c. 76), many of the peculiar forms of pleading which made a distinction between different actions are no longer in use. Trespass will not lie for an excessive distress; the proper remedy is an action on the case founded on the Statute of Marie- bridge. (52 Hen. 3). Hutchins v. Chambers, 1 Burr. 590. Trover will not lie, since the 11 Geo. 2, c. 19, for goods irregularly sold under a distress, if the whole or any part of the rent distrained for was due. Wallace v. King, 1 H. Bl. 13 ; Whitworth v. Smith, 1 M. & Rob. 193. A distress, to be excessive, must be obviously unrea- sonable. A landlord is entitled to protect himself by seizing what any reasonable man would deem adequate; and is only bound to exercise a reasonable and honest discretion. See Roden v. Eyton, 6 C. B. 427, (60 E. C. L. R. 427,). A landlord is not liable in tres- pass for the acts of the broker whom he employs to distrain, unless he authorises them beforehand, or subsequently assents to them, with a knowledge of what has been done. Therefore, where, in an action of trespass against a landlord, it appeared that he had given a warrant to distrain to a broker, and that the latter had taken away a fixture and sold it, and had paid the proceeds to the landlord, who had re- ceived them without inquiry and without knowing that anything irregular had been done, it was held that the landlord was not liable. Freeman v. Rosher, 13 Q. B. 780, (66 E. C. L. R. 780,). See also as to the remedies of the tenant in respect of irregularities in the making and carrying out of the distress, ante, p. 176, note ^*, and Woodfall's Landl. and Ten. 703—706 (6th Edit.). 232 LANDLORD AND TENANT. action brought. Thus, you perceive, the ordinary rule of law laid down in the Six Carpenters^ *Gase r*182l . ^ "'-' is relaxed in favour of a landlord by tliis statute. Secondly, where the distress is totally unwarrantable. This involves two cases : — The first, where the party distraining is a mere stranger, and has no pretence whatever to make any claim for rent. In such a case, the tenant may, of course, pursue any remedy adapted by law to a violent seizure of goods. He may, if he think proper, bring his action of replevin, in which case he will have the goods at once restored to him ; but he may equally bring trespass or trover, and, though in these forms of action he cannot recover his goods in specie^^ he will, at least, recover a compensa- tion for them in the shape of damages. Where, however, the landlord distrains, but im- properly so, the tenant may, it is true, bring trover or trespass against him;'^° but the form of action usually selected is replevin^ since that enables him to obtain his goods at once, and have the benefit of them pend- ing the suit brought to try the landlord's right. The action of replevin is a very singular one.^"(rt) It com- 3^ Under the Common Law Procedure Act, 1854 (17 & 18 Vic. c. 125), the Courts of Common Law have now power to compel the delivery up of specific chattels in actions brought for their detention. See s. 78. 2^ Under the 2 Wm. & M. sess. 1, c. 5, s. 5, the landlord is liable, in an action on the case, to pay double the value of the goods dis- trained, if at the time of the distress no rent is due. See the act, and Masters v. Farris, 1 C. B. 715, (50 E. C. L. R. 715,). ^'' See, generally, as to the proceedings in this action, and as to when it will lie, Bac. Ab. Replevin and Avoicry ; Selwyn's N. P. Replevin; George v. Chambers, 11 M. & W. 149;* and Allen v. Sharp, 2 Exch. 352. (a) In the United States replevin is universally begun by writ as WRONGFUL DISTRESS. 233 mences, not like *ordinary actions, by a writ ^-.qq sued out of the superior court ; but the party "- -' whose goods have been taken makes plaint in the court of the sheriff.^^ This plaint is removed into the su- perior court. Pie there sets forth his grievance, namely, the seizure of his goods; the defendant pleads, or as the technical term is, avows the right upon which he relies to seize them, and thus the title to distrain is ultimately tried and decided on. This action of replevin is as old as the law itself, but the proceedings in it have been much altered by modern enactments. At common law, a party whose goods were distrained sued a writ out of Chancery 2^ The jurisdiction of the old county courts in replevin, in cases of distress for rent and damage feasant, is now transferred to the county courts constituted under the 9 & 10 Vic. c. 95. See s. 119 of that act, and Edmonds v. Challis, 7 C. B. 413, (62 E. C. L. R. 413,). Actions of replevin are brought in the county courts without writ, and these courts have jurisdiction, whatever may be the value of the goods; 2nd Inst. 139, 312; Pollock on the County Courts, 145; and although the title may be in question. Reg- v. Raines, 1 E. & B. 855, (72 E. C. L. R 855,). But where either the title is in ques- tion, or the rent or damage in respect of which the distress is taken exceeds 20^., the proceedings are removable by certiorari into the superior courts. See the 9 & 10 Vic. c. 95, s. 121 ; Mungean v. Wheatley, 6 Esch. 88 ; and Stansfield v. Hellawell, 7 Exch. 373. in other actions. It requires the sheriff to deliver the enumerated articles to the plaintiff, and to summon the defendant, so that he has a day in Court. It is a proceeding in personam as well as in rem, and has a much wider scope than belongs to it in England, where its chief use is to try the legality of a distress. In the United States, on the contrary it is quite as often used to try the title to personal property. For further information on this subject, and on the other matters treated of in the remainder of the text and notes to this chapter, the reader is referred to Morris on Replevin. 234 LANDLORD AND TENANT. directed to the sheriff, who was commanded to replevy the goods, that is, to give them back to their owner ; and to take sureties from him, binding him to try the question of the distrainer's right to take them, and to return the goods if that question was decided against V^, ^ . him. *That was the common law: but it was 11 s+n "- ^ found extremely inconvenient to send tenants, perhaps poor ones, to the Court of Chancery for writs, and accordingly by [c. 21 of the] stat. Hen. 3, com- monly called the Statute of Marlebridge, jurisdiction was given the sheriff to entertain actions of replevin in the first instance; see Tliompson v. Farden^ 1 M. & Gr. 535, (39 E. C. L. E. 548,). By means of this statute the tenant obtains restitution of the goods seized immediately. But as it would have been unjust to take the distress from the landlord and leave him without any security, the stat. of West- minster the 2nd, (i. e. 13 Edw. 1, c. 2) requires the sheriff, when he restores him the distress, to take security from him that he will prosecute an action of replevin against the distrainer, and return the dis- tress if the court so award. And this security, by stat. 11 Geo. 2, c. 19, s. 23, is directed to be a Z>o?zcZ from ^ the plaintiff — that is, the tenant, — with two re- '- ^ sponsible persons as sureties,"^ in *double the ^^ The sheriff is responsible for taking insufficient sureties, and is bound to use a reasonable discretion in the matter. Jeffery v. Bas- tard, 4 A. & E. 823, (31 E. C L. R. 862,) ; Plumer v. Brisco, 11 Q. B. 46, (63 E. C. L. R. 46,). But if the sureties were at the time apparently responsible, he is not liable. Hindle v. Blades, 5 Taunt. 225, (1 E. C. L. E. 122,) ; 1 Wms. Saund. 195 f. This statute requires that the bond shall be conditioned to prosecute the suit " with effect and without delay." These words also form part of the condition of the bond which must be given upon the removal of re- plevins from the county courts under the 9 & 10 Vic. c. 95, s. 121. WRONGFUL DISTRESS. 235 value of the goods distrained ; and this bond is assign- able to the distrainer, contrary to the usual rule of the law of England, that clioses in action are not assign- able.^" Thus the party distrained, if he dispute the right of the distrainer, may obtain back his goods ; but, on condition of bringing an action of replevin against the distrainer : if he succeed in this action he recovers damages, but, if not, the judgment is provided by stat. 17 Car. 2, c. 7, the particular enactments of They mean that the suit shall be prosecuted to a not nn successful ter- mination. Jackson v. Hanson, 8 M. & W. 477.* In Morris v. Crouch, 2 Q. B. 293, (42 E. G. L. R. 681,) a bond was conditioned to prosecute the suit "with effect," not adding "without delay." The distrainer removed the proceedings, and carried the suit regularly forward in the superior court until he died. It was held that the condition was not broken. See also Kider v. Edwards, 3 M. & Gr. 202, (42 E. C. L. R. 112,). The condition to prosecute the suit, " without delay," may, however, be broken by a delay which does not exceed the time allowed by the ordinary practice of the courts, if the defendant in replevin be unduly prejudiced by it. Therefore, where a plaint was removed into a superior court, and the plaintiff obtained successive orders for time to declare, and did not declare until more than five months after the removal, it was held that there was evidence for the jury of a delay in prosecuting the suit. Gent V. Cutts, 11 Q. B. 288, (63 E. C. L. R. 288,). Although the juris- diction in replevin of the old county courts is now transferred to the new courts established under the 9 & 10 Vic. c. 95, the sheriff must still, it seems, take a bond pursuant to the 11 Geo. 2, c. 19. Ed- monds V. Challis, 7 C. B. 413, (G2 E. C. L. R. 413,). The bond which is required by the County Court Act before the proceedings can be removed, is to be given by the party removing the proceedings to the other party in the action, and is to be approved by the judge; see s. 127 ; but where a judge, by mistake, took the bond to himself, it was held not to be void. Stansfield v. Hellawell, 7 Exch. 373. "•^ See the notes to Mounson v. Redshaw, 1 Wms. Saund. 195 f. ; and Austen v. Howard, 7 Taunt. 325, (2 E. C. L. R. 384,). 236 LANDLORD AND TENANT. which are somewhat complicated ; hut the general effect of which is, that the landlord recovers his rent and r*i86i '''''^';'' •- -' *The time will not permit ns to go further. ■•^ See the notes to Mcunson v. Redshaw, 1 Wms. Saund. 193 to 195, b. The 11 Greo. 2, c. 19, s. 22, provided that when the distress was for rent, quit-rents, reliefs, heriots, and other services, and the plaintiif became non-suit, discontinued his action, or had judgment given against him, the defendant should recover double costs. This provision has been altered by the 5 & 6 Vic. c. 97, s. 2, under which the defendant is now entitled, in these cases, to receive only a full and reasonable indemnity as to all costs, charges, and expenses in- curred in and about the action. POINTS RELATING TO TENANCIES. 237 *LECTURE VII. [*187] Points relating to Contixu- ANCE OF Tenancy (contin- ued) 187 Rights of Landlord as to Re- pairs AND Cultivation 188 AYhere no express Agree- ment 189 Repairs, etc 189 Waste 190 At common Law 190 By Statute 191 Voluntary 192 Permissive 192 By Tenants for Life 192 Not liable for Damage by Tempest,