Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OP JUDGE DOUGLASS BOARDMAN FrRST dean' of the school By his Wife and Daugrhter A.M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® KD 899.S64"" """'"""' "-'""^ * 7lflIll'l«illliiiiiiiii™ite.«S' ''"O'O"' anf tena CJnrnfU Ham ^rlynnl ICtbraty Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® A MANUAL LAW OF LANDLOED AND TENANT. Digitized by Microsoft® PRINTED BY BALLANTYNE AND COMPANY EDINBURGH AND LONDON Digitized by Microsoft© A MANUAL LAW OF LANDLORD AND TENANT JiY HORACE SMITH, B.A, OF TRINITY HALL, CAMBRIDGE, AND OF THE INNER TEMPLE AND MIDLAND CIRCUIT, BARRISTER- AT-LAW ; THOMAS SPOONER SODEN, M.A. OF EXETER COLLEGE OXFORD, AND OF THE MIDDLE TEMPLE AND MIDLAND CIRCUIT, BARRISTER- AT-LAW. EDITED BT LEWIS W. CAVE, B.A. OF LINCOLN COLLEGE, OXFORD, AND OF THE INNER TEMPLE AND MIDLAND CIRCIirT, BARRISTER- AT-LAW. EDITOR OF "ADDISON ON CONTRACTS," " BURNS' JUSTICE OF THE PEACE," ETC. LONDON: DAVIS & SON, 57 CAREY STREET, LINCOLN'S INN, W.C. 1871. SAN FRANCISOO: 8UMNBR Wm^^m^^j^j^roJdm PUBTTSIIERS, 6 1 a CiiAT Stkbet. Digitized by Microsoft® PEEFACE BY THE AUTHOES. Some time ago Mr Cave conceived the idea of writing, for the use of the profession generally, a Manual of the Law of Landlord and Tenant, which should hold a middle place between the elaborate but expensive treatise of Woodfall, and the outlines contained in the Lectures of Mr J. "W. Smith. He accordingly- sketched out the ground-plan of the present wort, and had written some portions of it, when he found himself unable, from the pressure of other business, to carry out his design. Under these circumstances the authors, at his request, undertook to continue the work thus inter- rupted ; and, in the course of their labours, have had the advantage of consulting with Mr Cave, and of submitting the proof-sheets to him for revision. b Digitized by Microsoft® VI PREFACE. The authors have spared no pains in endeavouring to make the Treatise as accurate as possible, and hope it will prove to be a clear and concise state- ment of the law, as well as a useful book of refer- ence. HOEACE SMITH. THOMAS SPOONER SODEN. Temple, May 1871. Digitized by Microsoft® TABLE or CONTENTS. PAET I. CREATION OF TENANCY. CHAPTER I. WHO MAY BE LESSOES. TAGS 1. Tenants in Fee- simple . 2 2. Tenants in Tail — . 2 at common lavj . 2 enahling statutes 3 requisites of leases . 4 fines and recoveries . 5 3. Tenants foe Life — . 5 at common law . . 5 hy statute . . 6 tenant pur autre vie — . 8 tenants after possibility of issue extinct . . 9 tenants in dower or jointure 9 husland leasing wife's land 9 4. Peksons having less than A Fbebhold Ihteeest — 11 tenant for years . . 11 from year to year . 12 for less than years . 12 at will ... 12 5. Joint-Tenants and Ten- ants IN Common . 12 PAGE 13 10. MOKTQAGOB AND MoETOAGEE LoKDS OF Manors and COPTHOLDEKS . 14 COEPOBAIIONS — . . 16 the crovm . 16 municipal corporations . 16 ecclesiastical persons . 16 enahling and disabling statutes 17 Paeish Officeks . 20 guaedians — . . 21 guardians in socage . 21 testamentary guardians . 22 EXECUTOES AND AdMINIS- TEATORS . . 22 Trustees of Bankeuptoy 23 Peesohs uhdee Disability — ■ 23 lunatics . . . 23 persons in a state of intoxication 24 persons under duress . 25 persons attainted . 25 married women . . 26 in/ants ... 27 CHAPTER II. WHO MAT BE LESSEES. Pbesons undee Disability — 29 2. Coepoeations — . 32 lunatics . 29 corporatiorts 32 persons outlawed . 29 ecclesiastical persons 32 aliens and denizens 30 married women 31 3. Paeish Offioees, &c. 33 infants L31 Digitized by Microsoft® 'HI CONTENTS. CHAPTER III. WHAT MAY FAGR BE LEASED. PAGE 1. Things in Gkant— 36 tolls 39 advowsons 36 offices 39 tithes 36 pensions . 40 commons and estovers 37 rents and annuities 40 ways 38 other incorporeal hereditaments 40 corrodies 38 2. Things in Liveet — 41 franchises 39 lodgings . 41 CHAPTER IV. HOW DEMISES AEE MADE. ]. DlSTINCTIOBf BETWEEN LEASES— {a) Express — 116 hy deed, leases by writing not payment of rent 117 under seal, and leases payment of taxes . 118 without writing 42 repairs 120 statute of frauds . 46 husbandry 124 effect of non-com.pliance imth 48 insurance 124 presumed yearly tenancy 48 not to underlet or assign 125 2. Becitals 63 not to carry on certain trades 127 3. "Words of Demise — 56 trading with particular per- 4. distinctionhetween leases and agreements distinction between leases and licenses stamp Paecels Demised — 56 68 68 80 (5) sons, or within a particular radius . quiet enjoyment renewal of leases . Implied — . payment of rent repairs 128 130 132 135 137 137 exceptions and reservations 89 husbandry 138 5. Habendum — 93 for title . 139 commencement of term- 94 quiet enjoyment . 139 duration of term . 98 other implied covenants . 140 tenancy at will 101 8. Provisos and Conditions — 141 option to determine 107 not to assign license 142 6. Reddendum — 108 9. POWEES OP Re-bntet — . 147 from what rent issues 108 void and voidable leases . 150 its nature and incidents . 109 10. Leases under Powees . 151 7. Covenants 114 11. Leases bt Estoppel 156 Digitized by Microsoft® CONTENTS. IX PART II. CONTINUATION OF THE TENANCY. Division I. — Eights of Landloed. CHAPTER I. PAYMENT OF EENT. 1. Time when Payable 2. Mode of Payment . 3. Deductions — land tax income-tax PAGE 159 162 164 166 166 4. Apportionment PAGE sewers' rates . 167 poor-rates . . 167 other rates . 168 tithe rent- charge 169 170 CHAPTER II. EEMEDIES FOR NON-PAYMENT. 1. Action — . . 180 (c) What may not be Dis- use and occupation 181 trained — 196 debt .... 182 things absolutely privileged 196 things conditionally privileged 201 2. Distress — . 183 (d) Where the Distress may definition of 183 BE Made (e) When the Distress may 201 (a) Who mat Distrain— 184 BE Made 204 joint-tenants 185 (/) How a Distress should coparceners 186 BE Made . 207 tenants in common . 186 ((/) What to be Done with it 211 husband and wife . 187 (A) Tenant's Remedies — . 220 tenant pur autre vie 188 when no rent is due at the tenant by elegit 188 time 221 mortgagee . 188 distraining for more rent than agents, bailiffs, and receivers 189 is due 221 executors and administrators 190 twice for the same rent 221 sequestrators 192 for excessive distress 222 ^ things not the subject of (b) What may be Distrained- -381 distress . 223 general rale 192 for other illegal acts 224 growing crops, luiy, straw. rescue 225 src. . . . 193 replevin 225 Digitized by Microsoft® CONTENTS. CHAPTER III. REPAIRS AND CULTIVATION. 1. Waste — . . 228 without impeachment of waste 231 2. FiKE 3. COLTIVATION PAGE 232 233 CHAPTER IV. REMEDIES FOR NON-EEPAIR AND "WASTE. 1. Action — action for non-repair action for waste 2. Entry ob Ejectment 236 3. Injunction — . 239 236 at common law . 239 237 in Chancer;/ . 239 238 Division II. — Rights of Tenant. CHAPTER I. POSSESSION AND QUIET ENJOYMENT. 1. Right to Possession and Quiet ENJoraENi I 2. Remedies for Distuebasce 212 3. Right to a Lease 243 244 PART III. DETERMINATION OF THE TENANCY. CHAPTER I. EFFLUXION OF TIME, 246 Digitized by Microsoft® CONTENTS. XI CHAPT ER II. SURRENDER. PAGE PAGE 1. Express at Common Law, and 2. Bt Operation op Law — 250 SINCE THE Statute of talcing a new lease . 250 Frauds— . .248 other acts . 251 who may sun-ender . 249 hy merger . 252 to whom surrender may he 3. Effect of a Surrender on made . . .249 Under-leases — 254 in what words . . 249 operation of merger 255 CHAPTER III FORFEITURE. 1. Rb-bntrt for — . . 256 by whcrni . . . 256 far non-payment of rent . 257 2. Waiver 3. Disclaimer 259 262 CHAPTER IV. NOTICE TO QUIT. 1. Form op Notice . 264 2. When to be Given . 268 3. Bt and to Whom Given . 270 4. How Served 5. Waiver of Notice 272 272 CHAPTER V. HOLDING OVER. 1. Small Tenements Act 2. Desertion bt Tenant 275 I 3. Double Value 281 4. Double Rent 284 287 CHAPTER VL EMBLEMENTS. 1. Where there is no Con TRACT — . where they may he claimed out of what claimed entry to take them . 288 288 291 292 2. Where there is a Con- tract 292 Digitized by Microsoft® CONTENTS. CHAPTER VII. riXTUEES. Wherb there is Agreement — tenant's fixtures trade fixtures agricultural fixtures when to be removed PAGE 298 300 303 307 309 2. Where there is an Agree- ment — . valuation 311 315 PAET IV. CHANGE OF PARTIES. CHAPTER I. BY ACT OF PARTIES. 1. By Landlord— 317 attornment 318 2. By Tenant 321 3. Consequences oe Assign- ment — 321 at common law 321 iy 32 Sen. VIII., v. 34 . 322 4. Covenants running with Land— . . 324 word " assigns," use of . 326 5. Assignment of Part 328 1. Death — of lessor of lessee 2. Bankruptcy CHAPl 'EE IL BY ACT OF LAW. . 330 . 330 331 . 334 b. 4. Marriage — of female lessor of female lessee Married Women's Property Act . Writs of Execution S41 342 343 345 348 Digitized by Microsoft® liNDEX TO CASES CITED. A. PAGE PAGE Arden v. Pullen 137 Abadam v. Abadam . 166 ■ V. Sullivan 48 Abbey v. Peteh . 196 Ards V. Watkin . 329 Abbott V. Parsons 505 Armfield v. White 118 V. Weekly . 34 Arnold v. Bidgood . 23 Accidental Death Insurance Co. ■ V. Ridge 351 V. Mackenzie . 321 Arnsby v. Woodward . 149, 150, 257 Ackland v. Lutley 96 256 Arthur v. Lamb . 241 Ackroyd v. Smith , 40 Arundel (Earl of) v. Lore Gray " 251 Acocks V. Phillips 161 Ashoroft V. Bourne 284 Acton V. Pritcher 17 Ashfield V. Ashfield . 27 Adams v. Gibney «, 139 331 Ashton V. Jones . 33 V. Qrane 198 201 Aspdin V. Austin 137, 141 Agard v. King . 105 Atkinson v. Baker 94 Aldenburgh v. Peaple 204 Attack V. Bram^ell . . 207 220 Alderman v. Neat 57,'69, 64 Att.-G-en. v. Cox 149, 255 327 Alebury v. Walby 342 V. Glyn 33 Alexander v. Dyer 183 V. Great Yarmouth 15 Alford V. Vickery 272 273 V. Lewin 2] , 33 AUason v. Stark 2 , S3 V. Shield . 166 Allen V. England 50 Aubrey v. Fisher 230 V. Taylor . 130 Auriol V. Mills ' . 323, 348 V. Flicker . 216 Aveline v. Whisfeon 43 V. Sharp 226 Avenell v. Croker 216 Althain's Case . 94, 229 Amitt V. Breame 95 B. Anderson v. The Midland Rail- way Co. . 67, 102 Bacore v, Gyrling 92 Andrew v. Hancock . 166 Badeley v. Vigurs 250, 328 Andrew's Case . 330 Badger v. Ford . 14 Andrews v. Paradise . 131, 132 V. Shaw 314 ■ V. Russell . 216 Bagge V. Mawby 206 Angell V. Randall 182 Bagot V. Bagot . 229 Angerstein v, Handson 138, 233 Bagshaw v. Gilliard . 213 Ankerstein v. Clark 187 Bailey v. De Crespigny 115 143 Anon. 28, 30, 330 V. Hudgson 241 Anthony i;. Breton Market Co. . 139 V. Cathrey . , 30 Appleby v. Myers 115 Baker v. Greenhill 119 Appleton V. Doily 191 ■ V. Holtzap£Fell . 182 Archer v. March 129 Baldwin's Case . 94 Digitized by Microsoft® XIT INDEX TO CASES CITED. Ball V. Cullimore Bally V. Wells . Bamford v. Creasy Bankart v. Tennant Banks v. Rebbech Bandy v. Cartwright Bannister v. Hyde Barclay v. Raine J ex parte Barden's Case Bargeut v. Thomson Barker, in re Barfoot v. Freswell Barlow v. Rhodes Barnard v. Grodsoall Barry v. Nugent Barry v. Stanton Barton v. Brown Barwick v. Foster Basten v. Carew Bastow & Co., in re Bassett v. Lewis Batchelor v. Gage Bateman ». Allen Bates V. Dandy . Bathurst (Earl of) v. Burden Baxter v. Brown Bayley v. Bradley V. Fitzmaurice Baylis V. Dineley ■ V. Foster PAGE 101, 102, 104 127 239 245 102, 279 139 206, 208 325 315 289 239 232 115 137 324 68 144 80 178 283, 284 341 95 323 10 344 239 69, 64 53, 181 . 98 27, 31 . 222 - V. Le Grros 121, 148, 149, 150, 238, 257 Bayuham v. Guy's Hospital . 133 Baynes v. Smith "... 184 Beale v. Sanders . . 48, 51 Beaty v. Gibbons . . . 296 Beardmore v. Wilson ... 11 Beaufort (Duke of) v. Bates . 239 Beavan v. Delahay . 204, 292, 293 V. Macdonell . . .24 Beckett k. Bradley , Beck V. Rebow . Bedford Union v. Bedford Im provement Commissioners Beeley v. Perry . Beere v. Windebanke Bees V. Williams Begbie v. Hayne . Belaney v. Belaney Belcher v. M'Intosh Belfour V. Weston Bell V. Nixon Bellasis v. Burbrick . 158 302 118 317, 324 38 252 189 252 123 182 39 183 PAGE Bellingham v. Alsop . . 12, 13 Bennett v, Bayea . . . 210 V. Herring .... 238 V. Ireland .... 233 V. Robins . . . .190 V. Womack . . . 118, 127 Benson v. Chester . . .37 Bentley, ex jiow'fe, re West . .314 Bermondsey, Vestry of, v. Brown 34 Berrey v. Lindley . 48, 51, 63, 105 Berry v. Taunton . . . 144 Bertie v. Beaumont . . 50, 182 Berwick (Mayor of) v. Oswald , 115 Bessell v. Landsberg . . . 250 Bethell v. Blencowe . . 70, 268 Bettisworth's Case ... 87 Bevan v. Habgood . . .13 Beverley v. Lincolnshire Gas Coke Co 181 Bevil's Case . . . .225 Bickford v. Parson . . 138, 323 Bicknell v. Hood . . 65, 101 Bidder v. Trinidad Petroleum Co. 312 Biggins V. Goode . , . 222 Bignell v. Clarke . . .211 Birch V. Wright . . 12, 105, 181 Bird V. Baker . . . 93, 107 D. Elwes . . . 120,121 V. Higgiusou . 37, 43, 112 V. Gt. Eastern Railway Co. 40, 68 Birmingham Gas Light Co. in re Adams 337 Bisoo V. Holt .... 17 Bishop V. Bryant . .216, 222 V. ElHott . . . 303, 312 V. Howard . . 49, 106, 247 Blake v. Gold . . . .83 Blatchf ord J!. Cole . . 95, 285 V. Plymouth ... 90 Blight V. Page . . . .115 Bliss V. Collins .... 170 Blount V. Pearman ... 69 Blyth 1). Dennett . . .273 Boase v. Jackson . . ,69 Bogg V. Midland Railway Co. . 133 Bolton's Case, in re . . , 76 Bond V. Rosling ... 66 V. Kennington . . . 200 Bonsher v. Morgan . . 36, 37 Boodle V. Campbell . . 163, 171 Boone v. Eyer . . . .141 Booth V. Maofarlaue . . . 287 Boraston v. Green . . 293, 294 Boulton V. Reynolds . . .210 Bowen v. Owen .... 211 Digitized by Microsoft® DSfDES TO CASES CITED. XV Bower v. Hill PAGE 88 Brydges v. Kilboume . PiGB . 240 Bowes V. CroU . 55 , 116 Buck V. Nurton . . 87 Bowles V. Poore . 187 Buokland v. Butterfield 303 Bowman v. Taylor 53, 55 V. Hall . 125 Boyd V. Shorrock 314 V. PapUlon . . 126 Boydell v. M 'Michael . 313, 339 1 Buckley v. Kenyou . . Ill Bracebridge v. Cook . 253 V. Nightingale . . 331 Bradbury v. Wright . 108, 118 1 ■ V. Pirk . 325 Braithwaite v. Cooksey 204 V. Taylor . . 204 V. Hitchcock i8, 61, 185 1 Bull V. Parker . . 211 Bramley v. Chesterton 274 V. Sibba . 182, 183 Branscombe v. Bridges 224 BuUen v. Denning . 90 Brashier v. Jackson U, 140 Bullock V. Dommit . 122, 233 Brason v. Dean . 115 Bulwer v, Bulwer . 291 Brawley v. Wade 192 Burdett v. Withers . 123, 237 Brecknock Canal Co. v. Pritchard 122 Burchell v. Hornsby . . 238 Bredell v. Constable . 190 Burn V. Cambridge . . 13 Brereton v. Tuochey . 133 V. Phelps . . 270 Brett V. Cumberland . 324, 342 Burne v, Richardson , 185, 192, 204 Brewer v. Hill . 37, 65, 125 Burnett v. Lynch 139, 243, 323 V. Eaton 260 Burrowes v. Gradin . . 48 Brewster v. Kitchell . 115,167 Burt V. Haslett . . 316 • V. Kitchen . 118 Burton v. Barclay 183 252, 254 Brennon v. Bolton 245 i: Brown . 80,81 Bridges v. Hitchcock . 133 Butt's Case . 185 V. Potts . 176 V. Smyth . 185 C. Bridgland ii. Shapter . 43 Briggs V. Sowry . 840 Cadogau v. Kennet 41, 172 Bristol (Dean of) u. Jones 124 Caldecott v. Smithies 274, 293 Britton v. Cole . 29 Calvaleiro v. Puget . 150 Broadwood, ex parte . 313 Calvin's Case 30,31 Brocklington v. Saunders 52, 296 Camden (Marquis of) v. Batten- Broking v. Cham 131 bury . 49, 51 , 113 , 181, 182 Bromley v. Holder 203 Campbell v. Loader . 279 Brook V. Biggs . 320 V. Leach . Ill Brooke v. Bulkeley 325 V. Lewis . 325 Brooks V. Foxrott 13 V. Wenlock 138 Broom v. Hore 329 Carnarvon (Earl of) v. VUlebois . 251 Brown v. Arundell 198 Cannan v. Hartley 250, 252 V. Burtinshaw . 107, 252 Cannock v. Jones 121, 123 V. Blunden . 121 Cannon v. Smallwood . 226 V. Glen 207 Capel 1'. Bnszard . 201 V. Powell . 210 Capenhurst v. Capenhur 3t . . 116 V. Raymond 126 Garden v. Tuck . . 82 V. SheviU . 198, 201 Cardigan (Earl of) v. Armitage 89, 90 V. Storey . . 189, 319 Carpenter v. Buller . 54, 56 0. Tighe . 133 V. Collins . . 104 -0. Warren . 44 V. Parker . . 14 Browning v. Dann 208 Can- V. Benson . 41, 57, 68 V. Wright . 132 Carter v. Carter . 163, 221 Brudnell's Case . 247 Cartwright's Case 12 Brummel v. Maepherson 145 Carver v. Richards . 151 Brunswick (Duke of) v. Slow Gary v. Matthews . 189 man .... 207 Cattley v. Arnold . 173, 176 Digitized by Microsoft® XVI INDEX TO CASES CITED. PAGE Caton V. Coles . . . .345 Catt V. Tourle . . . 127, 128 Cattel V. Carrol . . .5 Caudell v. Shaw . . 343 Chadwick v. Clarke ... 70 Challoner v. Davis . . . 248 Chamberlaine v. Turner . . 83 Chamberlayue's Case . . .213 Chamberlayne v. Dumorier . 241 Chandler v. Doulton . . . 222 Chautflower v. Priestly . .131 Chaplin v. Southgate . . .131 Chapman v. Beecham . . 95 V. Bluck .... 59 ■D.Towner. . 53,63,269 Chard v. Tuck . . .82 Chauutler v. Robinson . . 237 Chatfield v. Parker . . .350 Chowne v. Baylls ... 26 Cheetham v. Hampson . . 237 Chetham v. Williamson . 93 Chelsea Waterworks v. Bowley . 165 Chesterfield, Earl of, v. Bolton . 233 Chilcote V. Youlden . . .277 Child V. Chamberlain . 189, 217 Cholmourtely (Lord) v. Clinton . 103 Christopher v. Sparke . .102 Christ's Hospital (Governors of) 'u. Harrild .... 108, 118 Christy v. Tancred . 182, 274 Church V. Brown . 125, 126 Churchward v. Ford . 181, 182 Claridge v. Mackenzie 158, 320 Clark V. Gaskarth . . .193 V. Crownshaw . . . 312 Clarke v. Clarke . . 13 ■ V. Cogge . . 37, 38, 41, 43 V. Fuller . . . .98 V. Holford. . . 161 V. Moore . . .48 ■ V. Roystone . 188, 293 ■ ■ V. Sydenham ... 95 V. Webb . . . .183 V. Westrope . . . 295 Clarkson I!. Earl of Scarborough 173 Clayton v. Blakey . 48, 101, 104 . V. Burtenshaw . 63, 69 V, Corby , . 88 Clerk V. Clerk . . 13 Clifford V. Watts 115 Climie v. Wood . . 315 Clinan v. Cooke 98 Clowes V. Hughes . 188 Clulow, re . 173 Clun's Case 161, 162, 172 PAGB . 269 . 104 . 325 140, 248 . 241 . 160 Cobb V. Stokes . Cockerell v. Owerell . Cockson V. Cook . Coe V. Clay Coffin V. Cof&n . Cole V. Sury Colgrave v. Dias Santos 301, 302, 313, 315 326 160 161 332 172 144 160 313 «, 170, 126, Cole' CoUett V. Curling Collier v. Nokes . Collins V. Crouch V. Harding V, Sillye Coomber v. Howard Coombs V. Beaumont Congleton (Mayor of) v. Pattison 127, 325, 327, 328 Cougham v. King . . . 328 Constable v. Nicholson . 34 Connor v. Bentley . . 226 Cooch V. Goodman . 43 Cooke V. Loxley . 320 Cooper V. Woofet . . .291 V. Robinson . . 96 ■ ex parte, re North Loudon Railway Company . Corder v. Drakef ord Cornish v. SeareE , . ■ V. Cleife V. Stubbs . Cosser v. Collinge Coster V. Wilson Cotesworth v. Spokes Cotsworth'v. Bettison Cother v. Merrick Coupland v. Maynard Cousins V. Philipps Cowan V. Milbourne . Coward v. Gregory Cowper V. Fletcher . Cox V. Bent Cramer v. Mott . Crane v. Taylor . Creak v. Brighton Crockford v. Alexander Croft V. Lumley . 143, 148, 260, 273 Cromwell's Case . . 81, 141 Crosier v. Tomlinson . . . 201 Cross V. Elgin .... 86 V. Jordan .... 259 Crossley v. Lightowler . . 88 Crouch V. Fastolfe , . . 1 62 Crowley v. Vitty . 48, 250, 278 Crowther v. Eamsbotham . . 209 259 153 69 320 121 247 321 203 260 . 225 . 113 . 250 . 134 150 . 124 . 13 49, 185 . 207 . 18 . 281 . 313 Digitized by Microsoft® INDEX TO CASES CITEP. xvu Crusoe v. Bugby riudlip V. Rundall Culling V. Tuffnall . Culwich V. Swindell . Gumming v. Bedborough . Gumming v. Ince Curling v. Mills . Gurtis?). Spitty . V. Wheeler Cuthbertson v. Irving li, Cutter V. Powell Cutting t). Derby . 161, 125, 144 91, 110 306, 312 315 167 25 86 328 I's, 185 157 158 141 266, 271 T>. Dale's Case Dalton V. Whittem Dalby v. Hirst . Dancer v. Hastings Dangerfield v. Thomas Daniel, re, ex paHe Ashby • i\ Gracie . Daniels v. Davison Dann v. Spurrier Darlington v. Pritchard Darby v. Harris 197, 223, 225 23 3, 295, 297 . 190 . 339 . 314 109, 184 . 104 . 108 . 157 . 197 Daroy (Lord) v. Askwith 228, 230, 231 V. Powell . 200 V. Sear 38 V. Underwood . 149, 150, 237 V. Aston 223 Davis V. Gyde 163 V. Burrell . 275 V. Eyton . 143 291 V. Connop . 294 ■ V. Jones 67, 305, 306, 312, 316 V. Mason . 128 Davison d. Brumley v Stanley 250 251 Davison v. Gent 252 V. Wilson . 275 Dawson v. Cropp 206 re . . ■ 314 V, Dyer 243 Day V. Duberley 344 1). Fynn , 86 Dean v. AUalley 300, 305 312 Decharms v. Horwood 13 Deering v. Farrington 136 Dejoncourt v. Rogers 191 Delaney v. Fox . 158 De la Rue v. Fortescue 239 De Medina' «). Norman 139 De Nicols v. Saunders 319 Dendy v. Nicholl 259 260 273 Denn v, Rawlinga V, Hoptinson d, Jacklin v. Car Dennis v. Laurie Dent Vt Dent Derisley v. Custance Digby V. Atkinson Dinsdale v. Isles Dobbyn v. Somers Dodd V, Acklom V. Moigan Dodson V. Sammell Doe d. Abdy v. Stevens - — :-- d. Agar v. Brown d. Angell i: Angell PAGE . 270 . 266 Wright 108,109 . 126 . 40 . 331 . 125 12, 97, 104 41, 43 . 252, 255 207, 213, 225 . 334 149 . 95 . 235 ■ d. Antrobus v. Jepson ■ d. Armstrong v. Wilkinson 150 264 d, Aslin V. Summerset d. Bailey v. Foster d. Baker r. Jones • d. Barker v. Goldsmith d. Barber v. Laurence d. Bartlett ■». Rendle . d. Barney v. Adams . ■ d. Bastow V. Cnx 49, 103, 104, 106 d. Beach v. Lord Jersey . 82 d. Beaden v. Pyke . .254 d. Bennett r. Long . . 262 d. Bennett v. Turner 101, 104 d. Biddulph v. Poole . . 251 " c^, Bodd V. Archer d. Bord V. Burton d. Boseawen v. Bliss d. Bowley v. Barnes d. Bridger v. Whitehead 124, 267 d. Bridgman v. David . 340 d. Brierly v. Palmer . . 273 • d. Bromfield v. Smith 53, 269 • d. Brown v. Bi-own . . 85 d. Bryan v. Bancks 18, 149, 150 d. Brune v. Prideaus . . 49 d. Buross V. Lucas . . 272 d. Calvert v. Frowd 262, 263, 270 d. Castleton v. Samuel . 98 d. Chadborni!. Green, 100,106,268 d. Chawner v. Boulton . 189 d. Cheney v. Batten 261, 286, 287 . d. Cheere v. Smith . 127, 339 13, 271 21, 266 125, 261 256 S67 151 14, 256 266 102 145 21 d. Chippendale v. Dyson 259 d. Clarke ■». Smaridge . 268 d. Clements v. Collins . 82 d. Collins V. Waller . . 6,10 d. Coore v. Clare . 61 d. Cox V. Day . 96 d. Cox r. . 264 Digitized by Microsoft® xvm INDEX TO CASES CITED. PAGE Doe d. Da Costa v. Wharton 350, 351 d. Darke?;. Bowditohl48, 256, 253 d. Darlington v. Ulph 93, 96, 125 d. Davenport v. Ehodea . 267 d. Davenish v. Moffatt 51, 269 d. David v. Williams 204, 263 d. Davis v. Elsam . .148 d. Davis v. Evans . . 262 d. Davies v. Thomas . . 104 d. Digby v. Steel . . 267 d. Dillon V. Parker . . 262 d. Dixie v. Davies 49, 103, 106 d. Dixon v. Roe . . 258, 259 d. Douglas V. Lock, . 90, 111 d. Downs V, Thompson . 157 d. D uke of Bedford i;. Kightley264 d. Dunning v. Cranstown . 83 d. Earl of Egremont v. Cour- tenay .... 251 d. Earl of Egremont v. Wil- liams . . . 18, 153 d. Earl Manvers v. Mizem 271 d. Edney v. Benham 21, 109, 184 d. Edney v. Billett . . 109 d. EUerbrock v. Flynn 256, 262 ■ d. Evans v. Evans 25 144 d. Eyre v. Lambley 266 d. Fisher v. Giles 103, 270 ■ d. Fleming v. Somerton 268 d. Flower v. Peck 125 d. Foley v. Wilson 102 231 d. Forster v. Wandlass 258 d. Freeland v. Burt . , 85 d. Freeman v. Bateman 257 d. Gardner v. Kennard 142 d.Goodbehere«).Beyanl43,144,339 d. Goodsell v. Inglis 269, 273 d. Goody v. Carter , 104 d. Gorst V. Timothy . . 267 d. Graves v. Wells 262 d. Gray v. Stanion 102, 251 d. Green v. Baker 149 268 d. Grethon v. Eoe 259 d. Griffith v. Lloyd . 35 d. Griffith i;. Pritchard25,259 261 d. Groves v. Groves . 101 d. Grubb v. Lord Burlington 228, 230 d. Grubb V. Grubb 262 d. Grubb v. Burlington , 230 ■ ■ d. Grundy v. Clarke . . 20 ■ d. Hall V. Benson 160 266 d. Harris v. Masters . 157 d. Haverson v. Franks , 259 d. Hayes v. Sturges . . 22 Doe d. Heuniker v. Wall d. Hiatt V. Miller d. Higginbotham v. Barton d. Higgs V. Terry d. Hills V. Morris, d. Hinde v. Vince d. Hitchings v. Lewis d. Hobbs V. Cookie d. Holcomb v. Johnson d. Holland v. Worsley PAGB 141, 142 . 102 105 20 238 256 258 20 97 125, 126 - d. Hollingworth v. Stennett 247 - d. Huddlestone v. Johnson 262 - d. Hughes v. Bucknell . 14 - d. Hughes v. Corbett . . 269 - d. Hughes v. Derry . .102 - d. Hughes v. Jones . . 348 - d. Hall V. Wood 49, 51, 101, 107 - d. Jackson v. Ashburner 67, 58, 62 - d. Jackson v. Eamsbottom 158 - d. Jacobs V. Phillips . . 270 - d. Jeffreys v. Whittick . 263 - d. Jones v. Jones 102, 104, 270 - d. Kindersley v. Hughes . 271 - d. King V. Grafton . 106, 107 - d. Knight v. Quigley . . 270 - d. Knight v. Rowe . .125 - d. Kirby v. Carter . . 18 - d. Lansdell v. Gower 21, 106, 107, 262 - d. Leeming v. Skinow . 158 - d. Leesou v. Sayer . 269, 270 - d. Lewis v. Lord Cawdor . 104 - d. Lindsey v. Edwards . 320 - d. Lloyd V. Ingleby . . 143 - d. Lloyd V. Powell . 143, 339 - d. Lockwood v. Clarke . 340 - d. Lord Anglesea v. Rugeley 143 - d. Lord V. Crago ... 49 - d. Lord Huntingtower v. CuUi- ford . . . 265, 266 - dLordMacCartneyj;. Crick 264,273 - d. Lord Suy and Sele v. Gay 23 - d. Lyster v. Goldwin 265, 267, 271, 286 - d. Maberley v. Maberley 23, 333 - d. Mann v. Walters . . 271 - d. Marlow v. Wiggins . 320 - d. Marquis of Bute v. Guest 141 - d. Marquis of Hertford v. Hunt . . . .273 - d. Marriott v. Edwards . 257 - d. Marsack v. Read . . 271 - d. Martin v. Watts 6, lt)5, 106, 107 - d. Matthews v. Jackson 266, 286 - d. Matthewson v. Wrightman 267 Digitized by Microsoft® INDEX TO CASES CITED. XIX Doe d. Mayor of Richinond v. Morphett . . . 265, 267 d. Meyriok v. Meyer . 80, 83 d. Milburn v. Edgar . . 102 d. Miller v. Rogers . . 31 d. Mitohinson v. Carter 125, 143 d. Monck v. Geeekie . 48, 100 d. Moore v. Lawder . 104, 270 d. Morecraft v. Meux . 260 d. Morgan v. Church . . 266 d. Murray v. Bridges . 251, 258 d. Murrell v. Milward . 250, 252 d. Mustonw. Gladwin 124, 125, 148 d. Nash V. Birch . . 149, 150 d. Neville v. Dunbar . 272 d. Neville v. Rivers . . 342 ■ d. Newby v. Jackson . 102, 151 d. NichoU V. M'Kaeg . 102 d. Norton v. Webster . 20, 87 d. Oldershaw v. Breach . 51 d. Palk V. Marchetti . 134, 149 d. Parker v. Boulton . .102 d. Parkin v. Parkin . . 83 d. Parry V. Hazell . .106 d. Peacock v. Eaffan . . 106 d. Pearson v. Eies . . 61 d. Pennington v. Taniere 6, 48, 52 d. Philip V. Benjamin . 255 d. Phillips V. Rollings 3, 262 d. Pitcher d. Donavan 106, 107, 265 d. Pitman v. Sutton . .125 d. Pitt V. Hogg . . .143 d. Pitt V. Laming . 126, 143 d. Pitt V. Shewin . 124, 125 d. Plevin v. Brown . . 320 d. Plumer v. Mainby . . 268 d, Poole V. Errington . . 13 d. Potter V. Archer . . 6 d. PoweU V. Rowe . . 259 d. Price v. Price . 102, 104 d. Priori). Ongley 49, 158, 257,271 • d. Pritchard v. Dodd . . 57 d. Pritchett v. Mitchell . 48 d. Putland v. Hilder . . 270 d. Rains v. Kneller . .256 d. Eawlings II. Walker 45, 252, 265 d. Richardson v. Thomas . 17 d. Rigge V. Bell . . 48, 51, 52 d. Robertson v. Gardiner 206, 271 d. Robinson v. Bousfield . 15 d. Robinson v. Dobell . 268 d. Robinson v. Hinde . 109 d. Eoby V. Maisey . 103, 270 d. Rodd V. Archer . . 266 PAGE Doe d. Rogers v. Cadwallader 103 d. Rogers v. PuUen . . 102 d. Rudd V. Golding . , 256 d. Rutren v. Lewis . . 260 d. Savage v. Stapleton . 98 d. Shaw V. Steward . . 339 d, Sheppard v. Allen . . 145 ■ d. Shore v. Porter . 105 d. Shrewsbury v, Wilson . 18 d. Simpson v. Butcher . 6 d. Smelt V. Purchaw . 259 • d. Smith V. Galloway 83, 84 d. Snell V. Tom . 103, 270 d. Southhouse v. Jenkins . 3 d. Spencer v. Godwin . 148 d. Spicer v. Lea . . 96, 266 V. Spiller . . . .267 d. Stanway v. Rock . . 102 ■ d. Sturgess v. Tatohell . 23 d. Taylor v. Johnson . . 260 d. Tennyson v. Lord Yar- borough ... 18, 19 d. Thomas v. Roberts . 38 d. Thompson v. Amey 48, 51, 247 ■ d. Tilt V. Stratton 51, 53, 269 d. Timmis v. Steele . 93, 94 • d. Tomes D. Chamberlainel02,270 ■ d. Tressider v. Tressider . 15 d. Tucker v. Morse 6, 105, 107 d. Vaughan v. Meyler . 170 d. Wadmore v. Selwyn . 98 d. Walker r. Groves . . 58 d. Warthmau v. Miles . 269 d. Warner v. Brown . 44, 268 d. Waters v. Houghton . 70 d. Webb V. Dixon . . 108 d. Westmorland v. Smith . 185 d. Wheeldon v. Paul . 258 d. Whaymau v. Chaplin 266, 271 ■ d. Whittaker v. Hales 102, 103 d. Williams v. Humphrey . 273 d. Williams v. Pasquali . 262 d. Williams v. Lloyd . . 33 d. Wilkinson v. Goodier 103 d. Williams v. Smith 265, 266, 267 ■ d. Wyatt V. Stagg , 250 d. Wilson V. Phillips . . 266 d. Wright V. Smith . 320 d. Wyndham v. Carew 143 148 Doidge V. Bowers 49 101 Dolby V. Isles 158 Dollen V. Batt . 114 Donellan v. Read 48 113 Doran v. Carroll 240 Dorrell v. Collins 91 Digitized by Microsoft® XX INDEX TO CASES CITED. PAGE Doughty V. Bowman . . . 327 Downes I) . Cooper . . 168 Downsliire (Marquis of) v. Lady Sandys 241 Dowse V. Osble . . 121 Drake v. Mitchell . . 163 V. Monday , ... 57 Drant r. Browne ... 70 Draper ?). Crofts . . 182,274 V. Thompson . . . 207 Drue V. Bay lie . , . .192 Druce v. Baltz . . .192 v, Denison . . . 11 Drury v. Maonamara . 48,140 V. Molins . . . 239, 240 Duck V. Braddyll . 69, 193, 198 Dudley v. FoUiott . . .131 Dudley (Lord) v. Ward (Lord) 305, 308, 309 Duigan v. Walker Dumpor's Case . ■ ■ V. Syms . . 14 Dunoomb v. Eeeve Dumergue v. Ramsay Dunk V, Hunter . . 63, Dunn V. Low V. Sayles V. Spurrier Dunstan v. Burweld Duppa V. Mayo 161, 178, 204, 257, Durham and Sunderland Railway Co. 1). Walker .... Dyke V. Sweeting Dykes v. Blake .... E. 128 144 261 213 312 113 216 141 6 342 261 89 330 15 East V. Harding East India Company v. Vincent 6 Easterby v. Sampson . . . 326 Easton v. Pratt . . 15, 123, 152 Eaton W.Lyon .... 133 V. Southby . . .200 Ecclesiastical Commissioners v. Merrall . . . . 16, 106 ■ of Ireland v. O'Connor . 171 Edge V. Strafford . 46, 48, 181 Edward v. Hodges . . .282 Edwards v. Countess of Warwick 172 ■ 2J. Dick '. ... 18 ■ V. Milbank . . .152 Egler V. Marsden . . .180 Eldridge v. Stacey . . 206, 208 Elliott V. Bishop 298, 301, 312, 316 V. Inoe . . . .24 PAGE Elliott V. Johnson 52, 236, 323 V. Turner . . . 100 Elliot V. Rogers . . .180 Ellis V. Taylor . 210 Elves V. Crofts . . .129 Elwes V. Maw 298, 299, 304, 305, 306, 308 Ely (Dean of) ii. Cash . . 205 Eramens v. Eldertou . . . 141 Emery i). Barnett . . 279 Emott's Case . . .41, 172 Empson V. Soden . 303 Enys V. Donnithorne . 95, 97 Etherton v. Popplewell 209, 216, 220, 224 Evans v. Elliott . . 189, 319 ■ V. Roberts . . 292 ■ v. Wright . . .219 Evelyn v. Chichester ... 28 Ewer V. Moyle .... 170 Exhall Mining Co., j« re . 341 Eyre v. Countess of Shaftesbury 21 Fabian's Case . . . .161 Factor v. Samyne . . .344 Famtille d. Mytton v. Gilbert 39, 157 Fairburn v. Eastwood . . 312 Fairfax (Lord) v. Derby (Lord) . 191 Falmouth (Earl of) v. Thomas 138, 233 Fancy v. Scott .... 90 Farewell v. Dickinson Farmer v. Rogers Farrall v. Davenport . V. Hilditch Farrance v, Elkington Parrant v. Lovel Faviel v. Gaskoin Fenn v. Grafton Fearon v. Norvall Penn v. Smart Fenner v. Duplock Fenny r. Child . Fenton r. Clegg . Fenton v. Logan Feret v. Hill Festing v, Tayler Few V. Parkins . Field V. Adames V. Beaumont Pielden v. Slater Fieldin v. Tattersall Filliter v. Phippard . 112 . 250 . 244 . 137 . 287 239, 241 138, 294, 296, 297 82 278 257 320 101 23 201 150 166 121 200 83 127 296 232 256, 199. Digitized by Microsoft® INDEX TO CASES CITED. XXI Finch's Case PAGE 23 Gibson v. Ireson . PAGK . 198 Finch V. Miller . 211 V. Wells . 229, 238 V. Throckmorton 261 Gie V. Eider . 251 Findon v. M'Larea 198 Gifford V. Young . 330 Fisher v. Algar . 216 Giles V. Hooper . . 137 V. Dixon '. 804, 305 V. Spencer . . 204 • V. Forbes . 289 Gill V. Gawin . 192 Fiske V. Campion 170 Gillingham v. Gwyes . . 201 Fitzgerald v. Fitzgerald 11 Gilman v. Elton . 198 Fitzherbert v. Shaw . .' 300 311 Gisbourn v. Hurst . 198 Fleming v. Snook 240 Gladman v. Plumer . . 319 Flight V. Glossop 328 Glover v. Cope . . 324 Foley V. Addenbroke, . 306 312 Godfrey v. Tucker . 848 Folfcingham v. Croft . . 125, 126 V. Little . 86 Foord V. Noll . 211 Goff V. Harris . . 299 Foote V. Berkeley 95 Golt V. Gaudy . 138 Foquet v. Moor . 48 250 Goode V. Harrison . 27 Ford V. Tynte . 241 V. Howells . . 87 Foster V. Mapes . 131 Goodright d. Carter v. Strahan . 26 FoweU V. Tranter 108 d. Charter v. Cardwent 260, 273 Fowle V. Welsh . 131 V. Mark . 107, 142 Fox V. Pursell . 244 V. Vivian . . 90 V. Swaun . 144 V. Richardson 95, 108 Frame v. Dawson 245 V. Davids . 256, 261 Francis v. Wyatt 201 Goodtitle V. Badtitle . . 284 Franklin v. Carter 167 d. Clarges v. Funucan Franklinaki v. Ball 14 18, 151, 152, 153 Fraser v. Skey . 139 d. Dodwell v. Gibbs 93, 94 Freshfield v. Reed 153 V. Herbert . . 104, 270 Frusher v. Lee . 196 V. Morse . 157 Fryer v. Coombs, 153 V, Way 58, 64 Fuller V. Abbott 166 Goodwin v. Longhurst . 15 Farley v. Bristol and Exeter Rail- Gordon v. Woodford . . 231 way Company 48 Gore V. Bowser . . 348 V. Wood 266 1). Gibson . . 24 Furneaux v. Fotherby 202 V. Lloyd . 160 Furnival v. Crewe 133 Goreley, ex parte . 232 Furnivall v. Grove 250, 262 255 Gorges v. Stanfield Gorton V. Falkner . 1£ . 231 7, 201, 300 G. V. Qregoi-y Gott V. Gandy 326, 328 . 138 Gage 1!. Smith 231 Gould V. Bradstock . 208 Gale V. Bates 296 Gouldsworth v. Knights . 21 Gambrell v. Earl Falmouth 206 Gourlay v. Duke of Somers et . 143 Gardiner v. Wflliamson 35,43 112 Governors Christ Hospital i .Har- Garth V. Cotton . 241 rild . 108, 118 Gas Light Company v. Turner 115 ,151 Grace, ex parte . 27, 32 Gaston 11. Frankum . 31 Graham v. Wade . 166 Gaters v. Madeley 343 V. Allsopp . . 163 Geeckie v. Monk 48 Granger v. Collins . 140, 243 George v. Chambers . 226 Grant v. Oxford Local Boar i 57, 68 Gethin v. Wilks 340 V. Ellis . 205 Gibson v. Doeg . 145 Grantham v. Hawley . 291 0. Kirk 180, 181 183 Gravenor v. Woodhouse . 320 V. Smith 241 Graves v. Weld . 292 Digitized by Microsoft® xxu INDEX TO CASES CITED. Gray v. Bompas . Green v. Ealea V. James Greene v. Cole Greenaway v. Hart Greenwood v. Tyber . Gregory v. Doidge V. Wilson . Grey de Wilton (Lord) ■ PAGE . 274 . 123, 237 . 157, 324 229 114, 158, 327 . 10 . 320 . 239 Saxon 239, 240 . 216 142 169 . 151 204, 292, 293 . 226 . 252, Griffin v. Scott . 1!. Stanhope Griffinhoofe v. Dunbar Griffith V. Harrison Griffiths V. Puleston . V. Stephens Grimman v. Legge Grosvenor v. Green Grute V. Locroft Grymes v. Boweren Guardians Bedford Union v. Bed- ford Improvement Commis- sioners Guardians Woodbridge Union v. Guardians of Colueis Gudgen v. Besset Gulliver d, Tasker v. Burr Gully V. Bishop of Exeter Gutteridge v. Munyard Gwynn, inre . . Gybson v. Searle 255 321 12 301 118 . 180 . 105 . 82 .123 . 337 36, 251 H. Hadden v. Arrowsmith Haines v. Welch Hall V. Burgess . Hall V. Betty Hall V. City of London Company Hall V. Lund Hall V. Seabright Haldane v. Johnson . Hallen v. Runder Hallifax v. Chambers Hamerton v. Stead Hammond v. Dodd Hancock v. Austin 40, 5 V. Caffyn Hands v. Slaney Harbin v. Barton Haroourt v. Wyman Harding v. Hall , V. Crethorn V. Wilson . 15 . 289 176, 181, 285 . 139 Brewery . 139 . 80 . 57 . 162 301, 310, 313 . 138 . 101, 251 . 131 7, 68, 184, 207 61, 243 32 12 342 219 274 PAaa Hardy v. Robinson . . • 343 Hare v. Cator . . • 328 V. Burgess . . . .133 Harley v. King .... 324 Harnett v. Maitland . 137, 229, 238 Harrington v. Ramsay. . . 278 v. Wise .... 58 Harris v. Goodwyn . . . 323 V. Greathed . .83 V. Jones . . . 122 Harrison v. Bamby . .186 V. Barry . . . .216 V. Blackburn . . 45 Harrow School v. Alderton . 229 Harper v. Taswell . .215 Hart V. Leach . . . .219 1). Windsor . . .137 Hartshorne v. Watson 149, 150, 151 Harvey v. Brydges V. Harvey . . . 302 V. Pocock . 223 Haslett V. Burt . 312 Hatch V. Hale . 210 Haths V. Ash . 96 Havergill v. Hare . . 57 Hawkins v. Kemp . 151 Hawks V. Orton . . . .243 Hay V. Palmer . .172 Hayes v. Bickerstaff . . 131, 140 Hayling v. Okey . . .292 Hayne v. Cummings . 114, 149, 238 V. Maltby . . 116, 142 Hayward v. Haswell . . 64 Head -v. Starkey . . .120 Heap V. Barton . . 304, 310, 311 Heame v. Allen .... 87 V. TomUn .... 51 Hegan v. Johnson . 65, 113, 185 Hele V. Bexley .... 50 Hellawell v. Eastwood 198, 299, 303 Hellier v. Casbard . . 137, 333 V. Silloox . . . 181 Henderson v. Squire . . . 273 V. Hay . . . .126 Henistead r. Phcenix Gas Co. . 343 Henstead's Case . . 10, 13, 104 Heme v. Benbow . . 229, 238 Hetherley d. Worthington v. Weston 13 Hew V. Greek . . .116 Hewitt V. Isham ... 92 Hewlins v. Shippam ... 43 Hicks V. Downing . . .11 Hide V. Skinner . . . 133 Higham v. Baker . , 88 Digitized by Microsoft® INDEX TO CASES CITED. XXlll PAGE Higham v. Cooke ... 95 Hill V. Barclay . . . 238, 239 v: Grange .... 160 V. Manchester and Salford Waterworks Compaijy . . 53 V. Saunders . 10, 320, 342 V. South Staffordshire Rail- way Company ... 48 V. Tupper 40, 68 Hills V. Laming .... 53 V. Street . . . .217 Hinohcliffe v. Earl of Kinnoul . 88 Hinde v. Gray . . . .129 Hindley v. Emery . . . 239 Hirst V. Horn . . 267, 286 Hitchcock V. Coker . . . 129 Hitchman v. Walton . . . 103 Hobson V. Middleton . .132 Hoby V. Roebuck . . . 185 Hodges V. Lawrence . 201 Holcombe v. Hewson . 128 Holding V. Piggott . 138, 293 Holford V. Hatch 125, 328 Holgate V. Kay. . . 171 Holland v. Falser . . 161 HoUia V. Carr . . . .137 Holmes v. Blogg ... 28, 31 Holtzappfel v. Baker . . 233 Hool V. Bell Hope V, Booth . V. Mayor of Gloucester Hopkins v. Helmore . V. Prescott Hopwood V. Whaley V. Barefoot Horn V. Baker Horner v. Graves Hornidge v. Wilson Hooper v. Clark . Horsfall v. Hey . V. Testar Horton v. Westminster Improve' ment Commissioners Houghton V. Koenig . How V. Kennett Howe V. Scarrott V. Synge . Howell V. Maine Howlett V. Strickland Howton V. Fearson Huddlestone v. Woodroffe Hudson V. Hudson Huffell V. Armitstead . 106, Hughes V. Clarke and Crowther's Case 61 191 102 133 161 39 332 118 298, 312 129 332 68 313 121 63 339 183 342 166 . 342 . 138 41, 43 . 81 . 22 269 116 247 10 38, PAGE Hughes V. Hughes . . .190 V. Palmer . . . 150 V. Robotham . . 248, 253 Hungerf ord v. Clay . . 14 V. Beeoher ... 53 Hunt V. Bishop . 148, 323, 325 V. Colson . SO V. Remnant . 323 V. Singleton . . 18, 85 Huntley u Russell . 228, 229, 299 Hurst V. Hurst . . 295 Hutchins v. Chambers . 206, 222 ■!>. Martin 259, 251 D. Scott 160, 207 Huton V. Huton . . . 144 Hutton V. Warren 124,138, 229, 233,293,295, 297 Hutt V. Morrell . . . 194 Hyatt V. Griffiths . . 247, 273 Hyde v. Graham . . 40, 68 V. Hill . 166 V. Moakes . . . 252 V. Watts . 125 Ibba V. Richardson . Ingulden v. May Inman v. Stamp Isherwood v. Oldknow Ive V. Sams Izon V. Gorton J. 274 133 . 46, 48 15, 114, 152 92, 251 282, 333 107, Jack V. M'Intyre . . . 84 Jaekman v. Hoddesden . . 15 Jackson v. Cater 6, 239, 240, 241, 244 ?;. Cobbin . . . 140 V. Hoddesden . . 15 V. Mordant . . 10 V. Neal . 15 Jacob V. King . 226 V. Seward . 232 Jacques i). Withy . . . 115 Jagon V. Vivian . . . 151 Jalentine v. Denion . . 185 James v. Plant re Jay V. Richardson Jenkins v. Gething V. Green V. Church V. Yates Jenner v. Clegg 38, 88, 89 22 127 303 . 19,91 6 6 185, 273 Digitized by Microsoft® XXIV INDEX TO CASES CITED. Jenner v. Morgan . PAGE 172 Kensey v. Langham PAGE 36 ■ V. YoUand 223, 324 Kerby v. Harding . 206, 209 Jenney v. Brook 92 Kerslake v. White . 85 Jennings v. Major 211 Kepp V. Wiggett 56 Jephson v. Jackson 57 Ketsey's Case 31 Jerman v. Orchard . 82, 94 Kettley v. Elliott . 29 Jerritt v. Weare 131 Key ex parte 337 Jervis v. Tomkinson . 93, 97 Kidwelly v. Brand . 258, 328 Jevens v. Harridge . 30 Kimpton v. Eve 239, 240 Jewel's Case 113 King V. England 217 Jewell V. Stead 128 V. Jones 331 Jinks V. Edwards . 48, 140, 243 Kingdon v. Nottle . 331 Job V. Banister 1^3, 239 Kingsbury v. Collins 289, 292 John V. Jenkins 63, 250 Kingston's (Duchess of,) Case 353 Johnson v. Faulkner 194, 199 Kinlyside v. Thornton 236, 238 V. Jones 163 Kinnersley v. Orpe 125 V. Uplam 210 Kintrea v. Perston 139 V. Warwick 23 Kirtland v. Pounsett 51, 102 Johnstone v. Huddlestone 252 269,287 Kuesyett v. Poole 289, 291 Jolly V, Arbuthnot 60 Knight V. Bennett . . 48 184 V. Handcock . 342 V. Egerton 222 Jones V. Chapman . 276 and Norton's Case 25 ■ V. Carter 149, 161 v. May . V. Clark V. Mory . 144 V. Davies 253, 254 Knowles v. Blake 225 11. Edney 128 229 11. Powell 29 V. Hill Kooystra v. Lucas 38, 88 V. Jones 126 V. Marsh 272 v. MiUs^ 106, 269 L. V. Morris 164 V. Nixon 268 Lady Montague's Case 15 V. Owen 279 Laing v. Meandor 211 V. Phipps 267 Ladd V. Thomas 224 ■ V. Reynolds 63, 183 Lainson v. Tremere . .' 58, 54, 56 V. Shears 48, 274 Lake v. Smith 286 V. Thompson . 183 Lamb v. Eeaston 83 d. Trimleston v. Nunan 57 Lambert ». Austin 191 V. Verney 6 V. Norris 113 Joule V. Jackson 199 Laming v. Laming 132 Jourdain v. Wilson 325 Lampet's Case 3 V. Steere 13 Lancaster (Dachy of, ) Case of . 28 Juste V. Darby 251 Lane v. Dixon . Lane's Case 198 43 K. Langley v. Hammond 38, 89 Lant V. Norris 121 Kearsey v. Carstairs 337 Lauyon v. Crane 109 Kearsley v. Oxley 331 Lapiere i). M'Intosh . 30 Keech v. Hall . 13 103, 270 Latham v. Attwood 291 Keen v. Priest 201, 204 223, 225 V. Spedding 279 Kelly i). Clubbe 183 Lawton 1'. Lawtou 301, 304, 305 308 Kemp V. Cruwes 192 11. Salmon . . 305 ,308 11. Derrett 97, 106 , 107, 205 Lay V. Mottram 137 Kendall v. Baker . 110 Layton v. Harvey 213 Kenney t). May 216 Leach v. Thomas 137 Digitized by Microsoft® INDEX TO CASES CITED. XXV PAGE lieader v. Homewood . . 311 Lear v. Caldecott . . 206, 222 Leather Cloth Co. v. Lorsout . 129 Lee V. Cooke .... 216 V. Risdou . 298, 303, 308, 313 V. Smith ... 52, 105 Leeds v. Cheetham Leftley v. Mills . Leghj;. Hewitt . Lehmann v. M 'Arthur Leigh V. Heald, . V. Lillie V. Shepherd Le Keux v. Nash Levi V, Lewis Lewis V. Hilliard Liford's Case, Lilley v. Harvey . V. Whitney Lindsay v. Lynch Line v. Stephenson Lingwood v. Stowmarket Co. Linwood v. Squire Litchfield v. Ready Llewellyn v. Rous V. Williams Lloyd V. Cheetham V. Crisp V. Davies . . • V. Jones . V. Laugford v. Rosbee . V. Tomkies Loadw. Green . Locke v. Furze . V. Matthews Lockwood v. Wood Loft V. Dennis . Logan V. Hall London & N.W. Railway Co. Garnett . . . & N.W. Railway Co. MaoMichael Cotton Co., in re V. Southwell & Westminster Loan & Dis- count Co. Limited v. Drake . (Mayor of) v. Hedger . 239 Lord Cholmondely v. Lord Clinton 103 Darcy v. Askwith 228, 230, 231 Dudley v. Lord Warde, 305, 308, 309 Fairfax v. Lord Derby . 191 Grey de Wilton v. Saxon 239, 240 Paget's Case . 182 . 161 138, 233 . 147 81,92 . 295 . 186 . 324 158, 181, 182 . 97 92, 300 . 279 . 94 . 245 . 136 . 244 . 116 . 45 . 176 . 96 . 40 144, 145 188, 319, 348, 351 . 279 . 250 . 286 . 131 . 149 243, 244 . 104 . 34 182, 233 . 321 128 32 341 92 254 , 241 95 Lord Rockingham v. Penrioe^ 172, 173 Stafford V. Buckley . . 82 ■ Strafford v. Lady Wentworth 172, 173, 178 ^ V aux's Case r-, Ward V. Lumley Windsor v. Bury Lougher v. Williams Lowe V. Griffiths V. Ross ■ r. Peers Lowndes v. Fountain Lowthal D. Tomkins Lucas V. Commerford V. Tarleton . Lucy V. Levington Ludford v. Barber Lumley v. Hodgson Luttrell V, Weston Luxmore v. Eobson Lyde v. Russell . Lyon V. Reed V. Tomkins 209, V. Weldon . 100 . 182 . 144 325, 330 . 32 181, 183 . 114 . 295 . 350 . 238 215 140 6 318 15 237 309 157, 250, 252 217, 219, 224 . 216 209, 131, 122, 310, M. Mabie's Case Macher v. Foundling Hospital M'Garth v. Shannon . Mackay v. Mackreth . Mackintosh v. Trotter M'Leish v. Tate . Madden v. White Magdalene College (Case of) Maitland v. Mackinnon Makin v. Watkinson . Maiden's Case . Mallam v. Arden . Manby v. Long . V. Scott Mann v. Lovejoy Manning v. Fitzgerald V. Lunn Mansfield v. Blackburn (Karl of) V. Blackburne Mantle v. Wellington . Mantz V, Goring . Markby, in re . Marker v. Keurick Markham v. Stanford . Marlborough (Duke of) v. Osborne 109 Marquis of Camden v. Battenbui-y 49, 51, 113, 181, 182 91 145 249 12 311 . ■ 161 . 27 . 17 80, 86 . 121 . 68 . 160 . 189 . 26 . 185 83, 85 . 211 304, 305 . 312 . 13 . 123 . 176 238 39 236. Digitized by Microsoft® XXVI INDEX TO CASES CITED. PAGE PAOE Marquis of Downehire v. Lady Milner v. Milnes 343 Sandys .... 241 V. Horton . . 132 Marsh v. Bruce . 324 Minshall v. Lloyd V. Curteys . 126 260 298, 309, 310, 311, 316 Marshall v. Pitman 226 Minshull v. Oakes 326, 327 • V, Powell . 70 Mitcalfe v. Weetaway . 90 Martin v. Gilham 138 238 Mitchell V. Lee . 183 V. Roe . . 300 303 310 Mollett V. Brayne 252 V. Pycroft . 244 Molton V. Camroux 24 Martyu v. Clue . . 124, 138 325 Monk V. Cooper . 122 V. Williams 322 323 Monks V. Dykes . «, 106, 107 Martyr v. Bradley 312 Montague's, Lady, Case 15 ■ V. Laurence 84 Moody V. Gamon 170 Marwood v. Waters' . 279 Moore v. Earl of Plymouth 90, 93 257 Mary Portington's Case, 141 V, Drinkwater 223 Mason v. Gorder 145 V. Musgrove 95 V. Newland 213 Morewood v. Wilks 26 Massay v. Goodall 295 Morgan v. Bissell 62, 64 Master, &o. of St Cross v. Lord • V. Earl of Abergavenny 200 Howard de Waldeu . , 110 ■ V. Hunt 132 Masters v. Farris 221 V. Pike 116 Mather v. Fraser 314 V. Slaughton 126 Mathew v. Blackmore 136 Morland v. Cook 325 Matin v. WUliams 322, 323 Morley v. Pincombe . 197, 200 Matthews v. Whetton 15 Morris V. Coleman 128 Matthias v. Mesnard . 198 V. Dimes 84 Maund's Case, . 161 257 V. Edgington 38 Mayhew v. Suttle 50 V. Moore 343 Mayor of Berwick v. Oswald 115 Morrison v. Chadwick 137, 171, 251 ■ of Congleton v. Pattison 127 Mortimer v. Hartley . 100 . of London v. Hedger . 239 241 Morton v. Woods 103 158 188 of Poole V. Whitt 348 Moss V. GalUmore Meohelen v. Wallace . 45 12, 49, 105, 188, 209 319 Meggison v. Bowers 112 Moule V. Garrett 324 ■ V. Lady Glamis 37 Mountjo/s Case . 110, 185 Melling v. Leake 104 Mountnoy v. Collier 182 Mellows V. May . 251 Mousley v. Ludlam 294 Mennie v Blake . 226 Moyle V. Moyle . 229 231 Merrill v. Frame 130, 136 Muncay v. Dennis 138, 293, 294 Messenger v. Armstrong 269 273 286 Mumford v. Gething 129 Messent v. Eeynolds . 139, 243 Murley v. M'Dermott 88 Messing v. Kemhle 220 224 Murray v. King . 163 Metcalf V. Scholey 348 Muspratt v. Gregory 199, 201 Metropolitan Assurance Co V. Brown .... 103 N. Michell V. Hughes 339 Middlemore v. Goodale 325 342 Nargett v. Nias . 201 Middleton v. Greenwood 244 Nash V. Lucas 206, 207 Midgley v. Lovelace . 186 V. Palmer . 131 Miller v. Green . 194 Naylor v. CoUinge 311 V, Mainwaring 95 Neale d'Leroux v. Parkin . 86 V. Rogers 31 V. Mackenzie 37, 57. 171 Milliner v. Robinson . 13 V. Ratcliffe . 121, 124 Mills V. Goff 265 Neave v. Moss 158 V. Trumper 173 176 Nepean v. Doe . 206 Digitized by Microsoft® INDEX TO CASES CITED. XXVII Neville v. Rivers PAGE 342 Newbury White, in re V. Wakley 121 Newliug V. Dobell 130 Newman v. Anderton 41, 112 184 Newson V. Smythies 274 Newton v. Allin . 171 v. Harland . 275 V. Scott 340 Niblet V. Smith . 193, 197, 225 305 Nicholls, re , 162 Nicholson v. Rose 244 Nickella v. Atherstone 252 Nixon V. Freeman .' 204 208 Noke's Case 139 Norris v. Harrison 173 North V. "Wyard . 342 Northampton Gas Co. V. Parnell 116 Northcote v. Underbill 116 Norton, m re 337 V. Ackland . 324 Norway v. Rowe . 239 Nott V, Bound . 218 Nunn V. Fabian . 244 Nuttall V, Staunton 204 0. Oakley v, Monok . 6, 49, 52 Gates V. Frith . 113 Obroyd v. Cramptou 39 Odell V. Wake . 324 Ognel's Case '. 187, 191 Gland's Case . 289 291 Gldershaw v. Holt • 176 Onley v. Gardiner 88 Gnsley v. Fisk , 82 Onslow V. . . 239 296 V. Corrie 324 Opperman v. Smith 202 Orme v. Broughton . 331 Osborn v. Garden 21 Osborne v. Wiokenden . 187 ■ V. Wise . 38, 4] , 43 Owen V. De Beauvoir . 206 V. Legh . 194, 215 Owens V. Wynne 206 Oxley V, James . '. 12, 105 P. Packer v. Glbbins . 182, 233 Paokington's Case 241 Page V. More 266, 284, 286 Paget's (Lord) Case . 96 Paget V. Foley . 205 Pain V. Coombs . PAGE 244 Palmer v. Earith . 118, 167 V. Edwards . 185, 328 Pannell v. Mill . 89, 90 Papillon V. Brunton . 271, 272 Paradine v. Jane 230 Paramour v. Yardley 23 Pargeter v. Harris '. 63, 158 Parker v. Constable , 268 ■ V. Harris 109 V. Ibbetson 139 V. Plumber . 81 I'.Tasweli , '. 140, 244 v. Whyte . 127, 241 Parmenter v. Webber 11, 143, 185, 250 Parrott v. Anderson . 163 Parry, ex parte . 341 V. Deere 69 V. Duncan . 202 V. Harbert . 144 ■ V. Hindle . 10, 187, 342 Parsons v. Gingell . 199 Partington v. Woodcock 189 Partridge v. Foster 348 Patrick v. Balls . 43 Patten v. Reid 332 Paul V. Nurse 127 Paxton V. Newton 238 Payler v. Homersham 83 Payne v. Burridge 118 V. Haine . 123 237 Peacock v. Purvis . 194, 200 Pearce ■». Cheslyn 60, 70 Pearse v. Morrice 39 Pearson v. Glazebrook 279 Pease v. Chaytor 226 Pellatt V. Boosey 259 Pemberton v. Vaughan 129 Penfold V. Abbott '. 136 332 Pennant's Case . . 204 261 Penniall v. Harborne 124 Pennington v. Cardale . 149, 150 Penry v. Brown . . 121, 303 312 Penton^i. Robart300, 3 04, 305, 308 310 Peppercorn v. Hofman 2in Perham, in re 283 Perkins v. Bradley 26 Perring v. Brook 61 Perry v, Davis . , 148 V. Edwards 131 Peter v. Kendall '. 38, 251 Petrie ii, Daniel . 294 Petrie v. Dawson 313 Phillips V. Ferryman . 226 V. Pearce . 20, 21 Digitized by Microsoft® XXVlll INDEX TO CASES CITED. PAGE PAOB PhUlipa V. Smith 228 230, 231 Powell V. Rees . 333 V. Whitsed . 209 Powley V. Walker 124 138 Philpott V. Hoare 325 Pratt V. Brett . 239, 240 Phipps V. Seulthorpe . 158, 252 Preece v. Corrie . . 11, 185, 192 Pierce v. Corrie . 143 Prescott V. Boucher . , 191 Piggott V. Birtles 193, 201 215, 222 Press V. Parker . 85 Pigofc V. Garnish . 21 ,22 Price V. Dyer 103 V. Stratton . 244, 254 V. Saluabury 245 Pike V. Eyre 12 V. Williams 18 Pilbrow V. Atmospheric Railway Cc . 53 V. Worwood 260 Pilkington v. Hastings 210 Prince's Case 23 V. Peach 30 Procter v. Sargent 129 ■ V. Scott 129, 141 Progress Assurance Co., in re 841 Pilton, ex parte . 282, 283 Propert v. Parker 127 Pincomb v, Thomas . 92 Prosser v. Phillips 70 Pincro v. Judson 60 Proud «). Bates . 90 Pinder v. Ainaley 182 Proudlove v. Twenlow 194 Pinhorn v. Sonster 49 103, 104 Pugh V. Arton . . 306, 309 310 Pistor V. Cater . 51 ■ V. Griffiths 208 Pitcairn v, Ogbourne , 21 V. Leeds, Duke of 96 Pitcher II. Tovey 332 Pull en 'V. Palmer 186 187 Pitman v. Woodbury . 116 Pullin V. PulUn . 83 Pitt V. Shew 197, 216 Pyer v. Carter 88 V. Smith 24 Pyne v. Dor 231 V. Snowden 190 Pyot V. St John . 300 Place V. l?agg 300, 314 Piatt I). Sleap 253 R. Playfaim. Musgrove . 348 Pleasant v. Benson 254, 270 R. V. Aldborough 12 Pleazance v. Higham . 64 — V. Aylesbury, with Walton 118 Pluck V. Digges . 192 — V. Bardwell . , 50 Plummer v. Whitely . 176 — V. Chawton 100 Plymouth (Countess of) v Throg- — V. Cheshunt . 50 morton . 172 — V. Collett 101 Pointer ti. Buckley 217 — V. Earl of Pomf ret . in Polden V. Bastard 88 — V. Eastbourne 30 Pollen V. Brewer 104 — V. Filloughley 101 102 PoUitt V. FoiTest 184 — d. Hall V. Bulkely . 151 Pomery v. Partington . 151 — v. Herstmonceaux . 106 107 Poole V. Archer . 233 — -y. Holland 30 V. Bentley . 59 — V. Horuchurch 14 V, Longueville 192 — V. Hoseaston . 226 ■ Mayor of, v. Whitt 348 — V. Hull Dock Company 168 V. Warren . 284 286 — V. Jobbling 101 Poole's Case 197, 304 30£ ,306 ,309 — V. Kelstern 49 Pope V. Biggs 189 — V. Lakenheath 102 Pordageii. Cole . 141 — V. Lee 303 Porphrey v. Legingham 223 — V. Leigh . . 230 Porris v, Allen . 250 — V. Lenthall 39 Porter v. Swetnam 137 — V. Londonthorpe 302 Portman v. Harrell 203 — V. Mitoham . 165 Postlethwaite v, Lewthwaite 133 — V. Morrish 57.68 Potter V. H"orth . 87 — i). Nicholson . 38 Poultney v. Holmes . 185 — V. North Staffordshire Rs dlway Powell V. Thomas 244 Company . 303 Digitized by Microsoft® INDEX TO CASES CITED. XXIX B..V. Oakley PAGE 21 Rickman v. Johns PiOE 190 — V. Old Alreaford . 81 Eidgway v. Lord Stafford . 196 — V. Otley . . . . 299 Right d. Bassett v. Thomas , 67 — V. Saffron Walden . 128 • ■ d. Fisher v. Cuthell . 266 — V. Sewell 282 d. Flower v. Darby 105, 106, 268 ■ — ■ V. Sherrington 21 d. Green v. Proctor . 57 — V. Shipdam . 50 • ■ d. Lewis v. Beard 102 — V. Smyth 275 Ringer v. Cann . 5t , 83, 183 — V. Snaps 50 Riseley v, Eyle . , 184 — V. Southampton Dock Gom- Eoaoh V. Garvan 22 pauy 303 V. Wadham 328 — V. Spurrell 50 Eoads V. Trumpingtou 68 — V. St Austell . 111 Roberts v. Barker 138, 295 — V. St Dunatan's 301, 302 V. Davey . .149, 150, 257 — V. Stamper 53 V. Karr 83 — V. Stock . 49 Robertson v. Norris . 342 — V. Sutton 21 Robinson v. Button 83 — V. Thorp 22 V. Hoffman 186 — V. Topping 143, 312 ■ V. Learoyd . 285 — V. "Watt . 37 V. Tongue . 36 — V. Welby 14 V. Waddington . 209, 215 — V. Westbrook . 109 111 V. Walter . 201 — V. Weste 49, 184 Eobson V. Flight 153 Rainsford v. Smith . 56 Rockingham (Lord) v. Penrioe 172,173 Eamsbottom v. Buckhurst 351 Rodgers v, Parker . 194, 216 219 Eand v. Vaughan 203 Roe d. Bainford v. Hayley . 107, 325 Randal v. Dean . 189 d. Beudale v. Sumerset 22 Rankin v. Lay 244 d. Blair v. Street 272 Rannie v. Irving 129 d. Dingley v. Sales 126, 144 Rashleigh v. Williams 131 d. Earl Berkley v. Arch- Rawlings v. Morgan . . 122, 323 bishop of York 250 Rawson v. Eioke 64 d. Gregson v. Harrison Raymond v. Fitch 331 125, 127, 145, 261 Read v. Bailey . 192 d. Hunter v. Galliers Rede v. Burley . 199 125 143, 340 V. Fan- 149 150 • d. Goatley v. Paine . 260 Reed V. Deere 70 d. Jordon v. Ward 6, 265 Rees V. PhiHpps . 3 d. Jordon v. Prideaux 6 V. Errington 256 d. Parry v. Hodgson . 22 V. King 259 d. West V. Davis 258 Reeve v. Bird 252 V. Wiggs 271 Eegnart v. Porter 49 ,184 Roffey V. Henderson . 311 Reid V. Parsons . 149 Eogers v. Dock Company at King R«ynall, ex parte '. 314 339 ston-upon-Hull 268 Eeynel's Case 39 V. Birkmire 201 Reynolds v. Oakley . 192 V, Humphreys . 188 18 9,318 Richards v. Easto 232 V. Pitcher , 32 0,350 V. Richards 343 RoUason v. Leon 60 1). Sely 57 Eolph V. Grouch 244 Richardson v. Evans . 145 Eouch V. Great Western Eailwaj V. Gifford . . 48, '51, 52 101 Company . 143 V. Hall . 183 ,345 Eowdon V. Malster 3 V. Langridge 51, 100 ,101 Rowe V. Young . . 162 V. Lovejoy . , Rowls V. Gells . . 168 Rioketts v. Weaver . 331 Rubery v. Jervoise . 133 Digitized by Microsoft® XXX INDEX TO CASES CITED. Kubery v. Stephens . PAGE 332, 333 Sherrington v. Yates , PAOE , 343 Eumball v. Munt . 21 Shirley v. Newman . . 268 Eushden'a Case . 170 Shopland v. Eadlen . . 190 Euahworth's Case 86 V. Ryoler . 21 Eussell V. Rider . 206 Simmons v. Norton . 229, 931 V. Shenton . 237 Simpson v. Clayton . 325, 328 V, Stokes 327 V. Gutteridge . 22 Kyan v. Clark . 45 V. Hartopp 197, 200 V. Shiloook 207, 20S V. Margitson . 100 Six Carpenters' Case 210, 211 220, 224 S. Skidmore v. Booth . 208 Skinner, in re, . . 337 Sabbarton v. Sabbarton . 152 Skull V. Glenister 41, 43 Saoheverell v. Froggatt . 113 Slack V. Sharp . 172, 255 Salisbury's (Bishop of) Case . 16 Slater v. Brady 27 Salmon v. Matthews . 1' 2,113,172 V. Stone . 123 V. Swan . 252 V. Trimble . 27 Salop's, Countess of, Case . 232 Sleap V, Newman . 332 Salter v. Bunsden . . . 221 Sleddon v. Cruikshank . 313 V. Grosvenor . 32 Slipper V. Tottenham Junction V. Kidgley . 53,56 Railway Co. . . 143 Saltoun V. Houston ,. . 137 Smith V. Ashforth 222, 223 Sampson v. Easterby - . 137 V. Adkins . 21,33 Sanders v. Karnell . 52 V. Barrett . . 16 Sapsford v. Fletcher . . 163 . V. Bole . 92 Saunders v. Merry weather . . 14 and Bustard's Case . 258 ■ V. Musgrave . 102 V. Carter . 239, 240 V. Watson . . 26 V. Chance . . 295 Saward v. Leggatt . 123 ■ V. Clark . . 272 Say V. Smith . 100 ■ V. Compton . 132 Scarpelliui v. Atcheson 343 V. Day . 95 Soholis V. Hargreaves . . 87 1). Eldridge . 181 Schroder p. Ward . 123 V. Goodwin . 206, 210, 224 Scot V. Scot . 258 ■ V. Humble . 166, 167 Scott V. Soholey . 348 V. Doe d. Jersey, Earl of 153, 259 Sedden i>. Senate . 132 V. Malings 170, 171 Selby V. Browne . . 149 V. Mapleback 112, 138, 185, 250 V. Greaves . 40, 41 V. Marable . 137 Sells V. Hoare . 222 V. Martin . 82,87 Semayne's Case . . 207 V. Mayor of Harwich . 141 Semor v. Armytage 294, 297 V. Peat 122, 237 Severn V. Clark . . 137 V. Scott . 183 Sharp V. Waterhouse . 137, 141 V. Smith . 334 V. Key . 351 V. Twoart . 181 V. Sharp . 44 • V. Walton . . 266 Sharpe v. Poole . 187 V. White . . 151 Sharp's Case . 44 V. Wright . 213, 225 Shaw V. Bran . 26 Smyth I!. Carter 239, 240 V. Coffin . . 142 V. Nangle . 133 V. Kay 93, 97 Smythe, ex parte . 173 V. Stenton . 131, 132 Snelgar v. Henston . 187 Sheecomb v. Hawkins . 152 Somerset, Duke of, v. Fagwell 39, 43 Sheen v. Rickie . . 298 Southampton v. Brown . 113 Shelburn, Earl of, v. Biddu ph . 132 Soulsby V. Neving . 2S5 Shepherd v, Hodsmau 39 Souter V. Drake . . 139 Digitized by Microsoft® INDEX TO CASES CITED. XXXI South-Eastern Railway Co. v. Wharton . . 53, 54 Southgate v. Chaplan . .131 Sparke'a Case .... 12 Sparrow v. Hawkes . . . 268 Spargo V. Brown . . . 222 Spencer's Case . . 41, 116, 327 Spyve V. Toplam . . .94 Stafford (Lord) v. Buckley . 82, 185 St Albans (Duke of) t). Ellis . 116 St Aubyn v. St Aubyu . 173, 176 St Cross (Master of) v. Lord Howard de Walden . . .110 St Nicholas Deptford v. ScetcUey 21 Staines v. Morris . . . 323 Stainforth v. Fox ... 57 Standen v. Christmas . 136, 323 Stanley v. Hayes . . . 131 V. Twogood . 123, 237 V. Wharton . . .203 Stansfeld v. Mayor of Portsmouth 310 Staple V. Heydon . . 41, 43 Stedman v. Page . . .186 Steele v. Mart . . .96 V. Midland Railway Co. . 82 Stephens v. Bridges . . .253 Stevens v. Copp . . .142 Stevenson v. Lambard 171, 179, 328, 329 Stiles V. Cowper ... 6 StooMy V. Stockly . . .244 Stockport Waterworks Co. v. Potter . . . . 40, 68 Stokes V. Russell . . 135,,327 Stone V. Rogers .... 69 V. Whiting, . . .252 Storer v. Hunter . .312 Storey v. Johnson ... 28 Stowe V. Jackson . . .343 Stott V. Clegg . ... 39 Strafford (Lord) v. Buckley . 82 (Lord) V. Lady Wentworth 172, 173, 178 Stranks v. St John . . .139 Stratton v. Pettitt ... 66 Strickland v. Maxwell 269, 272, 294 Strongfield v. Buck . . .56 Stroud, inre . . .49 V. Rogers . . .180 Strowd V. Willis ... 56 Strutt V. Finch . . . . 84 Styles V. Wardle ... 96 Suffield V. Brown . . 88 Sullivan v. Bishop . . 286, 287 Sumner v. Brownilow . 310, 311 PAOB Surcombe v, Piuniger . . 244 Sureper v. Randall . . .12 Surplice v. Parnsworth . 138, 182 Sury V, Brown . . . 37, 38 Sutherland v. Briggs . . . 244 Sutton's Case . ... 39 V. Temple . . . 137, 138 Swaine v. Holman ... 31 Swan V, Stransham . . . 136 Swann v. Earl of Falmouth 201, 210, 222 Swatman v. Ambler . . 116 Sweet V. Seager .... 118 Swift V. Eyres .... 83 Swinfen v. Bacon . . 285 Swire v. Leech .... 198 Sym's Case . . . 344 Symons v. Symons . .173 Tabian and Windsor's Case Tancred v. Christy . 274 V. Leylaud . . 209 Taswellii. Parker . 67 Tate V. Gleed . . 192 Tatem v. Chaplin . 325 Tayleur v. Wildin . 273 Taylor v. Caldwell . 57,68 V. Chapman . 252 ■ V. Cole . . 275 350, 351 ■ V. Fitzgerald . 95 V. Henniker 209, 221 V. Lamira . . 173 V. Martindale . 82 V. Shum 324, 332 Taylorson v. Peters 204, 283 Tennant v. Field . 210 Tew V. Jones 102, 182 Theobald v. Duffey . 30 Thomas v. Cook . 252 V. Hayward . 127 «. Fredericks 37, 40 V. Parker 51, 52 V. Harries 210, 213 V. Thomas . . 88 V. Cadwallader 124 Thompson v. Gayon . 134 V. Hakewill 328 V. Lapworth 120 V. Maahiter 198 V. Thompson 163 V. Waterlow 38 V. Wilson . 252 Digitized by Microsoft® xxxn INDEX TO CASES CITED. PAGE PAGE Thompaon v. Petti tt . 223 Tynte v. Hodge . 116 Thorn v. Wooloombe . 11, 143 255 Tyringham's Case 87 Thornton v. Adams 203 V. Finch 348 U. v. Sherratt 128 Thorpe v. Eyre . 293 Upwell Caroon's Case . so Threr v. Baston . 254 Uthwatt V. Elkins 21, 33 Thresher v. East London Water- works Co. 121, 305 , 311, 312 ,315 V. Thrustout d. Levick v. Coppin . 23 Thunder d. Weaver v. Belcher Vandenanker v. Deaborough 339 12,13 103 Vane v. Lord Barnard 232 Thursby v. Plant 324 Vaspor V. Edwards 213 Tidey v. MoUett . '66,67 141 Vaughan, ex parte 277 Tidswell v. Whitworth 120 v. Hancock . 47 Tilney v. Norris 831 V. Manlove . 232 Timmina v. Eowlinson ■;;. Taff-Vale Railway Co 232 105, 264, 285, 287 Vaux's (Lord) Case 100 Tinckler v. Prentice 161, 166 257 Veale v. Priour . 39 Tipping V. Eckersley . 241 244 V. Warner . 53 Tisdale v. Essex . . 57, 181 Veness, ex parte . 337 Todhunter, ex parte 337 Vere v. Sweden . 126 Toler V. Slater . , 10 Vernon v. Smith . 326 Tomlinson v. Day 171 Vigers v. Dean and Chapter of St Toleman v. Portbury . 124, 127, 257 Paul's .... 319 (second case). See Vivian «. Blomberg . 18 Add. Vyvyan v. Arthur 136 326 Toms V. Wilson . 258 Tookerr. Smith . '. 52, 254 W. Torriano v. Young 254 Towne v. Campbell 106, 107 Wade V. Baker 21 V. D'Heinrich 181 V. Marsh 190 Townsend v. Stangroom 86 Wakefield v. Brown . 325 Trapp's Case 83 Wakeman v. Lindsey . 208, 209 Trappes v. Harter 198, 299 312 V. Walker . , 37 Tremeere v. Morison . 332 Walker v. Code . 49 Trent v. Hunt 'l4, 50, 209 V. Eiohardson 33, 252 Tress v. Savage . 269 V. Wakeman 37 Trevillian v. Pine . 189 Walker's Case . 170, 171 Trevivan v. Lawrence . 157 Wallace v. King . 216 220 Trevor v. Roberts 57 V. M'Laren . 187 Tritton v. Foots 133 Waller v. Andrews 118 167 Turnam v. Cooper 94 Wallis V. Delmar . 104 Turner's Case 344 V. Harrison 342, 344 Turner v. AUday . 160 Walls V. Atcheson 252 ■ V. Barnes 204 Walmsley v. Milne V. Cameron . 299 50, 103, 198, 298 , 306 339 V. Cameron's Coalbrook Co. 182 Walsall V. Heath 10 v. Doe d. Bennett 101 Walter v. Rumball . 209, 217, 222 V. Hodges . .' 15 101 Walton V. Waterhouse 122 V. Lamb . 122, 237 Wankford v. Wankford 22 V. Power 70 Wansborough v. Maton 299, 312 . V. Turner . 185 Ward V. Const . 165, 166 Tutton V. Darke . 204 V. Day . . 68 205, 259 Twynam v. Pickard . '. 328, 329 V. Shew 190 Digitized by Microsoft® INDEX TO CASES CITED XXXlll PAGE Ward (Lord) v. Lumley . .182 Warden v. Usher . . ,308 Wardroper v. Outfield . .176 Waring v. King . . . 182, 274 Warman v. Faithful! ... 59 Warner's Case .... 20 Washbourn v. Black . . .214 Waterfall v. Peuistone . 198, 314 Watkins v. MQton . . '57,68 Watkinson v. Mann ... 17 Watson V. Main . . . .202 V. Holme . . . .166 V. Waud . . . .184 Watts V. Kelson. See Add. Webb V. Plummer . . 124, 138 V. Russell 135, 253, 254, 255, 257, 323, 327 Weddall v. Capea . . .250 Weekley v. Wildman ... 34 Weeton v. Woodcock . . . 310 W'eigal D. Waters . 122,233 Welby V. Welby . Wells V. Foster . V. Moody West V. Blakeway ■ V. Dobb V. Fritchie . Westwood V. Cowne . Wetherall 1J. Geering . Wetherell v. Howells 229, 231, 308, 312, 316 Whalley v. Thompson Wharton v. Maylor Wheatley v. Boyd W^heeler v. Copeland V. Heydon . ■ V. Stevenson V. Tootel . Whistler v. Paslow Whitaker v. Wisbey White V. Bayley . V. Hunt V. Nicholson V. Willis Whiteacre d. Boult v. Symonds Whitehead v. Bennett V. Taylor Whitfield V. Brandwood V, Pindar V. Weedon . Whitley v. Eoberts Whitlock V. Horton Whitmore v. Empson Whittaker v. Barker Whittle V. Frankland . 83 . 40 . 222 . 303, 312 147, 149, 325, 327 49, 103 . 216 . 126 . 200 . 116 . 285 . 18 . 259 176 . 92 . 26 49, 101, 104 . 337 . 137, 138 . 226 273 306 189, 191 . 166 . 173 . 237 . 186 12,67 . 314 . 296 . 141 PAGE Whittome v. Lamb , . . 114 Wickham v. Hawker ... 90 V. Lee .... 285 ■ V. Marquis of Bath . . 33 Wigglesworth v. Dallison 291, 292, 293 Wight V. Dicksons Wigstow's Case . Wilbraham v. Livsay Wilder v. Speer . Wildman v. Wildman Wiles V. Woodward Wilkins v. Wingate V. Wood Wilkinson v. Colley V. Hall V. Rogers 128 . 300 . 127 211, 213 . 11 . 53 . 180 . 138 271, 284 57, 106, 107, 286 . 127 45, 183, 337 Williams v. Bosanquet V. Burrell 136, 139, 140, 323,325, 331 V. Cheney .... 126 V. Cooper . . . 262 V. Day . . . .241 V. Evans . . . .315 V. Earle . . 325, 326, 328 V. Hay ward . . Ill, 172 V. Holmes .... 198 r. M'Namara . . . 241 V. Sawyer .... 250 V. Stiven .... 204 Willis V. Whitewood , 21 Willoughby v. Foster . , 83 Wills v. Stradling . . . 244 Wilmot V. Rose .... 234 Wilson, ex parte . . 60, 102 V. Abbott . . . 106, 107 V. Anderson ... 82 V. Chisholm ... 60 V. Ducket .... 199 V. Hart . . 127, 128, 327 V. Nightingale . . . 209 V. Sewell . . . 250, 252 V. Whatley . . . 312 V. Weller .... 226 V. Wilson .... 124 V. Wigg . , . ,332 Wilton V. Dunn . . . 164, 189 Wiltshear v. Cottrell 197, 293, 298, 312 Winch V. Winchester ... 86 Winchester (Bishop of) v. Wright 183 Windham v. Windham . . 83 Windsor, Dean and Chapter of, v. Gover . . 37, 112, 325 Windsor (Lord) u. Bury . .144 Windsor's (Dean of) Case . . 325 Winn V. Ingleby . 193, 197, 301 Digitized by Microsoft® XXXIV INDEX TO CASES CITED. PAGE Winnard v. Foster . 226 Winter v. Loveday . . .152 Winterbottom v. Ingham . .102 Winterbourne v. Morgan 216, 220, 224 Wiscot's Case Wise V. Bellent . Witty V. Williams Wolveridge v. Steward Womersley v. Dally . Wood and Chivers' Case — — ■ V. Clarke . V. Copper Miners' Company 10 187 , 162 . 323 . 297 161, 258 116 V. Day . . .158 V. Hewett . . 198 V. Leadbetter 40. 68 V. Nuun . . 207 V. Tait . . . .106 Woodbridge Union v. Colneis 49, 180 Woodcock V. Gibson . . 21 1>. Nuth . . .252 Woods V. Durrant . 214 V. Pope . . .237 Woodward v. Aston . 251 Woolaston v. Hakewill 11, 143, 328, 331, 332, 333 V. Stafford . . . .206 Worcester School Trustees v. Rowlands .... 237 Worledge v. Benbury . 15 Worthington v. Gimson 88 V. Warrington . 69 Worthington v, Wigley Wotley V. Gregory Wotton V. Harvey V. Steffendord Wright V. Burroughes V, Dewas V. Stavert . V. Smith V. Trerezant Wyburd v. Tuck Wyndham v. Way Wynne v. Wynne y. PAOB . 163 . 135, 209 . 226 . 30 . 328, 329 194, 195, 200 41, 47 . 285 . 58 93, 97 92, 303, 308 343 Yates V. Cole . 328 V. Edwards V, Eastwood '. 219 Yellowley «. Gower 137, 229 Yeo V. Leman . 166 Young V. Badfoot . 253 V. Holmes . 23 V. Mantz . . 123 V. Manton . . 123 V. Raincock 53,56 Zouch d. Abbot v. Parsons V. More 27, 28, 250 Digitized by Microsoft® INDEX OF STATUTES. PAOE PAOE 20 Hen. III. e. 2 (repealed) 289 6 Anne, 3. 18 . 9 51 „ c. 4 . . . 213 ». 1, 7 . 346 52 „ c. 4 . 213, 222, 224 ». 8, 11, 12 ' 347 52 „ w. 13 . . 229 ». 35 . . 345 52 „ >;. 15 . . 201 „ c 31 . 230, 232 6 Edw. I. ,;. 5 . . 229 8 » <' 14, H. 6 . . 204 13 u. 5, 0. 1. . . 2 s. 7 . . 205 18 c. 5, s. 1. . . 2 4 Geo. II. c. 28, s. 1 . 284 21 Hen. VIII. o. 15 (repealed) 45 ^1 s. 2 . 259, 260 „ i;. 15, s. 2 . .46 ,, a. 5 . 194 28 „ c. 11 . . 288 ,, s. 6 . 134, 254 32 „ u. 16, s. 13 30 J, S.13 . 283 32 „ c. 28 . . 3,10 9 ,, 0. 36 . . 33 32 „ c. 28, s. 1 . .17 11 0. 19 . 194, 176 32 „ 0. 34 . 257, 232, 238 ,, s. 1 . . 202 32 ,, e. 34, s. 2 . . 322 s. 2 . . 174 32 „ 0. 37, s. 1, 4 . 191 ,j s. 3 . . 175 32 „ 0. 37, s. 3 . . 187 J, s. 4-7 . 203 5&6Edw.VI. 0. 16. . 39 ,, s. 8 1 & 2 Philip & Mary, c. 12 213, 217 193 203, 215, 225 s. 1 224 ,, s. 9 . 209, 215 1 Eliz. 0. 19 . . . 17 , s. 10 213, 224 13 „ c. 10 . . . 17, 18 „ s. 14 . 180 14 „ ell . . 17,18 )» s. 15 . 172 18 „ c. 6 . . . 109 ,, s. 16 . 281 „ 0. 11 . . 17, 109 ,, s. 17 . 282 39 „ 0.5, s. 2 . 17 J, s. 18 . -287 43 „ c. 9, a. 8 . . . 17 ,, e. 19 219, 220 1 Jao. I. u. 3 . . 17 5G SO. Ill c. 17 . 36 12 Car. II. u. 24, 3. 8, 11 . 22 13 JJ 0. 81, s. 15 14, 37 17 „ i;. 7, s. 2 227 14 JJ 0. 78, s. 83 . 326 „ ». 4 . . 206 JJ B. 86 , . 232 19 „ i;. 6 . . . . 8 38 }J c. 5, s. 4 . 172 s. 2, 3 .9 It ». 17, 18,35 . 165 22 & 23 Car. II. o. 12 . . . 110 11 u. 87, ». 6 . 23 2 Will. & Mary, sess. 1, c. 5, s. 2 39 & 40 „ u. 41 18, 19 214, 215, 219 49 ft c. 126 . . 89 c. 5, 221, 224 56 }f c. 50, H. 1 195 199, 233 „ s. 3 193, 199 )> a. 2 . 234 s. 4 225 )} s. 3-6 195, 199 1 Anne, u. 7, s. 5 . . . 16 57 J1 c. 52 . 281 4 „ c. 16, 5. 10 . . 14 s. 17 . 282 4&5Anne, 0. 16 . 318 )} c. 93 . 216 Digitized by Microsoft® XXXVl INDEX TO STATUTES. PAGE PAQB 57 Geo. III. 0.93, ». 2 . 218 12 & 13 Viot. c. 67 s. 3-7 . 155 59 „ vi. 12, s. 12 . 33 ,, . 192 s. 17 . 20, 33 ,, u. 92, B. 5 . . 211 s. 24, 25 . 277 s. 6 . . 212 3 Geo IV. 0. 126 . 39 jj c. 106 . 334 s. 57 . . 39 0. 106, 8. 144 . 234 4 c. 95, s. 51 . 39 13 ", 0. 17. . . 154 9 „ u. 85 . 33 B. 2 . 153 1 Will . IV. u. 65 . 134 ,j s. 2, 3 . . 156 ». 12 22, 31,' 32 13 & 14 c. 60 . . 339 ». 15 31,32 ,, 0. 97 . . 168 ». 16, 17 . . 28 14&15 o. 25 . . 176 2 & 3 Will. IV. i;. 42, s. 5, 11 . 277 i> e. I 6, 8, 107, 289 3&4 u. 27, s. 2 . . 205 >» s. 2 194, 200, 289 „ ». 7 . . 103 )i s. 3 . 308 B. 42 . 205 )) c. 104 . 20 „ i;. 42, B. 2 . 238, 333 15&16 c. 48 . 24 „ B. 3 . . 183 )f c. 76, s. 41 . . 226 )) B. 37, 38 it s. 40 . . 303 191, 192 !) s. 141 . . 344 c. 74, . 342 J) B. 210 . . 268 s. 41, 54. 5 0. 79, 8. 13 . . 277 »• 77, 79. 26 16 & 17 c. 70,8.127, 129; 1 30, 4&5 c. 22 . 176 131, 133, 134 . , 24 B. 1 . . 173 17 & 18 u. 10 . . 129 c. 76, H. 23 . 33 „ o. 36 . . 314 6&6 „ c. 76, B. 94, 96 . 16 „ u. 60, 8. 1 . 212 6&7 c. 20 . 18 li c. 116 . . 20 c. 64 . 18 1} o. 125, s. 61 . . 183 „ 0. 71, o. 56 . 110 jf o. 125, B. 79-82 . 239 ». 67, 80,81 169 18&19 0. 63 . . 34 c. 72 . 176 , 0. 70, s. 18 . . 34 1 & 2 Vict. c. 74, s. 1 . 275 19 & 20 0. 74 . . 20 „ 0. 106, s. 28 . . 32 tj 0. 108 . 227 „ C. 110, B. 11 . . 348 0. 108, s. 2 . 258 S&4 „ 0. 84, s. 13 281, 283 „ s. 25, 51, 52 279 5&6 „ c. 27 18, 19 „ s. 50 . 278 „ c. 35, s. 60 120, 166 19&20 c. 108 . 226 s. 73 . 167 JJ s. 63, 65, 66, 37, s. 103 . 114, 120 71, . 227 „ c. 97, s. 2 . 225 » 0. 120 . 9, 22, 2 8 342, „ c. 108 . 19 0. 120, s. 4 . 17 6&7 „ c. 30 . 225 s. 32 10 7 &8 „ 0. 66, s. 4 . 30 s. 32 . 3 8. 7, 14, 16 , 16 31 B. 32 . 15 8&9 „ c. 18 . 82 }) s. 32 . 4 „ u. 106, s. 1 s. 2 . 48 ;> s. 33, 34, 41, 43, 7 35 }} s. 35 . 4 „ s. 3 47 100, 248 )i s. 36 . 24 s. 4 . . 140 s. 44 . 8 B. 9 . 543, 125 21 & 22 ^- 57, s. 1, 4 19, 20 8& 9 „ 0.124 . . 130 ^, •^. 75, B. 3 . ' 34 9 4; 10 „ 0. 74 . 34 ,, 0. 77 . 22 , 0. 95, s. 122 . 278 c. 77, 8. 3 . 15 12 & 13 Vict. 0. 26, s. 2 . . 154 ,, s. 8 . 10 Digitized by Microsoft® INDEX TO STATUTES. XXXVll 21 & 22 Vict. 0. 77, s. c. 12 s. 22 and'23 c' 21', s. c. 35, s. 23 23 & 2i 24&25 25 & 26 5 . 25 1 s. 2 s. 7 s. 12 s. 27 s. 28 0. 46 c. 15 c. 30 c. 38 c. 38, s 0.41 c. 124 c. 126 c. 136, c. 154 c. 105, c. 105 c. 125 c. 134 v.. 17 ^. 52 1. 13 131 PAGE 7 277 25 145 146 329 326 153 232, 333 334 20 69 34 145 261 34 20 227 277 176 20 19 34 334 33 19 334 26 & 27 Vict. c. 106 29 ;30, ;31 31&32 32 &33 33 & : c. 57 . u. 102, H. 6 u. 106, d. 13 c. 143 . c. 44 . c. 104 . c. HI . c. 114, a. 9 c. 71 . c. 71, s. 14 s. 15 s. 20, 22, 23 s. 24 s. 25 s. 26, 27 s. 34, 35 s. 117 . c. 23 c. 23, s. 1, 10 c. 35 . c. 44, s. 1 . c. 93 PAGE 33 33 168 33 20 33 335 20 20 334, 335 23, 335 . 339 9, 11, 335 336 337 339 340 339 25 30 176 75 27, 341, c. 97 345, 348 70, 80, 163, 316 Digitized by Microsoft® ADDENDA. Page 88, note {lo), add—" See Watts v. Kelson, L. R. 6 Cli. App. 166." Page 257, note [j ), add — " See also Toleman v. Portbury, L. R, 6 Q. B, 245." Page 260, line 4, add — " A statement in particulars, delivered in an action of ejectment, alleging a second breach of covenant in not paying rent, will not operate as a waiver of a prior forfeiture in permitting a sale by auction on the premises withput the landlord's consent." — Toleman v. Portbury, supra. EEEATA. Page 168, note (») — This Act seems to be wholly repealed by the 32 & 33 Vict. c. 41, s. 6. Page 168, note (o) — So much of any local statute as relates to the rating of owners instead of occupiers is repealed by the 32 & 33 Vict. u. 41, b. 6, so far as the same applies to any poor-rate made after the 29th September 1869. Page 168, line 3 from bottom of page— By the 32 & 33 Vict. c. 41, s. 1, occupiers of tenements let for not more than three months may deduct the poor-rate from their rents ; and by sect. 8, where an owner having undertaken to pay the rates omits to do so, the occupier may pay and deduct the amount from his rent ; and see sect. 12, where a distress is levied on the occupier. Digitized by Microsoft® A MANUAL LAW OF LANDLORD AND TENANT. PART T. CBEATION OF THE TENANCY. CHAPTER I. WHO MAY BE LESSOKS. 1. Tenants in Fee simple 2. Tenants in Tail — at common law enabliiig statutes requisites of leases . . fines and recoveries ... 3. Tenants for Life — at common law hy statute tenant pur autre vie tenants after 'possibility of issue extinct ten/ints in daiuer or jointure husband leasing wife^s lands 4. Persons having less than A Pkeehold Interest — tenants for years ... from year to year ... for less than years ... at will 5. Joint-Tenants and Ten- ants in Common 6. moetoagob and mort- GAGEE PAGE . 2 7. Lords op the Manor and Copyholders 8. Corporations — the crown municipal corporations ecclesiastical corporations enabling and disabling stat- utes 9. Pabish Oppicebs 10. Guardians — in socage testamentary guardians 11. Exeodtoks and Admin- istrators 12. Trustees op Bankrupts 13. Persons UNDER Disability- lunatics persons in a state of intoxi- cation persons under duress person s attainted married woTMn infants 14 16 16 16 17 20 21 22 22 23 24 25 25 25 26 27 By law all land is ultimately held of the sovereign. No subject, therefore, can possess a greater estate in A Digitized by Microsoft® «J CEEATION OF TENANCY. [PART I. law than a tenancy, a word which implies the holding from some superior ; but the more ordinary use of the word tenancy is where it is intended to mean a holding for a certain definite term, subject to some rent or fine, accompanied by certain obligations of the lessor and lessee respectively. Upon such a holding arises the ordinary relation of landlord and tenant; and it is to the nature and incidents of such a holding, and the obligations arising from it, that the present volume is intended to be confined. In the present chapter it is proposed to show who may be lessors. 1. Tenants in Fee-simple. The tenant in fee-simple has the entire uncon- trolled disposition of the property, and may demise for any term whatever (a). By the common law, any person seised of an estate in fee-simple in lands could convey the lands to be held of him- self in fee -simple, and thus create a tenancy in fee -simple between himself and his grantee; but by the statute of quia emptores (d), there can no longer be held of a subject any tenancy in fee- simple which has been created since the passing of that Act (c). 2. Tenants in Tail. At common At common law a tenant in tail might make a lease ^'■''- for his own life (d). If a tenant in tail after the statute De donis (e) made a lease for years and died, the lease was not absolutely determined by his (a) Com. Dig. tit. Estate (G) 2. (d) Com. Dig. tit. Estate (Q) 2. (I) 18 Ed. I. 0. 1. (e) 13 Ed. I. c. 1. (c) Stephen's Blackstone, i. 240. Digitized by Microsoft® OH. I.j WHO MAT BE LESSORS. death, but the issue in tail might affirm or avoid it (/). Acceptance of the rent or fealty, or bringing an action for recovery thereof, or an action of waste, were such acts as would amount to a confirmation, because these plainly manifested an intent to keep the lessee in possession upon the terms of his lease (g). But if the tenant made an under-lease, and the issue in tail accepted rent from the under-lessee, this would have been no confirmation of the lease. If the tenant assigned part of the land for the residue of the term, and the issue accepted rent from the assignee, this would have confirmed the lease (Ji). If the tenant in tail died whilst the right of the lessee was but an interesse termini (i), and the issue entered and aliened, the alienee might elect to confirm or avoid the lease (_;'). But if the tenant in tail granted an immediate lease, and the issue aliened without entry, the alienee was bound by the lease, by reason that the issue had only a right of entrj^, which is not alienable (k). Neither persons in remainder nor in reversion were bound by the leases of the tenant in tail ; against them such leases were void, and they could not confirm them on the death of the tenant in tail. By the 32 Hen. VIII., c. 28, a tenant in tail was Enabling enabled to make leases for twenty-one years or three lives, if such leases were made in conformity with the provisions of the statute (P). Such leases were bind- (/) Bac. Abr. Leases (D) 1 ; Co. Cro. Car. 42 ; Doe v. Jenkins, 5 Litt. 45. Bing. 469 ; Reea v. Phillips, Wight. (g) Bae. Abr. Leases (D) 1. 69 ; Doe d. Phillips v. Rollings, 4 (A) Bac. Abr. Leases (D) 1. C. B. 180 ; Bac. Abr. tit. Leases (j) See infra, c. 4, s. 1 n. (D) ; Co. Litt. 44 a ; 8 Co. 34 ; {j) Bac. Abr. Leases (D) 1 ; Co. Lampet's case, 3 Co. 64 b. The Litt. 349. above statute is repealed by the (/t) Bac. Abr. tit. Leases, 311, 19 & 20 Vict. u. 120, o. 32. See 315, 324. post, p. 4. {1} See Rowdon v. Maltster, Digitized by Microsoft® 4 CREATION OF TENANCY. [PAET I. ing on the issue in tail, but not on the remainder-man or reversioner. Requisites of To make a good lease under the above statute, the eases un er. ^QJ^Q^jjjg requisites Were necessary : — 1st, That the lease should be by indenture, not by deed poll, which was required in order that the tenant might be liable to actions of covenant in case of his committing breaches of its stipulations ; 2dly, That it should begin from the day on which it was made, which was intended to prevent its termination from being post- poned to a very distant period, since otherwise a tenant 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 (m) ; 3dly, 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 have exceeded three lives or twenty-one years since it was thought unjust to keep the issue longer out of possession ; 5thly, The lease must have been of lands which had been usually let for twenty years before the lease made; 6thly, The rent accus- tomably paid during that period, or a greater rent, must have been reserved upon it ; and, lastly. It must not have been without impeachment of waste (re). The statute of Hen. VIII. is repealed by the 19 &20 Yict., c. 120, ss. 32, 35, by which a tenant in tail of settled estates has the same power to make leases as (m) See u. 2, Bao. Abr. tit. (n.) Sees. 1, fiosi!, p. 17, andBao. Leases (E). Abr. tit. Leases (E); Co. Litt.44 a b. Digitized by Microsoft® CH. I.J WHO MAY BE LESSOfiS. a tenant for life has (). So also he may under-let from year to year, and the lease will operate as a demise from year to year during the continuance of the original demise {q), and, in either case, he will have a reversion (r). Tenants for Under a tenancy for one year, or for less than one yTars. ™ year, provided it is for a term fixed and certain, the tenant has the same power of assigning or leasing as a tenant for years (s). Tenants at will. Tenants at will, or on sufferance, cannot demise (t). 5. Joint-Tenants, Tenants in Common, and Coparceners. Joint- tenants should join in making a lease, for if one of two joint-tenants make a lease of the whole, his moiety only will pass (u) ; and if a lease purport- ing to be made by both is executed by one only, it will pass nothing more than the moiety of him who has executed it (v). A lease of his moiety by a joint-tenant, who subsequently dies, will bind the survivor, and this even if the lease be made to com- mence after the lessor's death (w). Where joint- Co) Mackray v. Maokreth, i Doug. 213. (q) Oxley v. James, 13 M. & W. 209. (r) Pike v. Eyre, 9 B. &. C. 909 ; Curtis V. Wheeler, Moo. & M. 495. (s) Rex V. Aldborough, 1 East. 598 ; Shep. Touch, 268. (t) Sureper v. Randal, Cro. Eliz. 156 ; Sparke's case, Cro. Eliz. 156 ; Moss V. Gallimore, 1 Doug. 279 ; Thunder d. Weaver v. Belcher, 3 East. 449 ; Jones v. Clerk, Hard. 47 ; Dinsdale v. lies, 2 Lev. 88, S.C, Sir T. Ray. 224, 1 Ventr. 247 ; Birch v. Wright, 1 T. R. 382. [u) Bellingham v. Alsop, Cro. Jao. 53; Co. Litt. 186 a. («)Cartwright's case, 1 Vent. 136. (w) Grute v. Looroft, Cro. Eliz. 287 ; Harbin v. Barton, Moor. 395 ; Whitlook v. Horton, Cro. Digitized by Microsoft® CH. I.] WHO MAY BE LESSORS. 13 tenants make a lease, and one dies, the survivors are entitled to the whole rent, and the interest of the lessee continues {x). Tenants in common cannot make a joint-lease of the whole of their estate (y) ; and if the lease'purport to do so, it is merely the lease of each for their respective parts, and the confirmation of each for the part of the other ; neither is there any estoppel, because an actual interest passes from each (xr). If one joint-tenant or tenant in common makes a lease for years of his part to his companion, this is good, and such a lease extinguishes the jointure for the time, and gives a right of distress (a). So also a joint- lease by coparceners operates as a several demise by each of her own share (i). One coparcener cannot sue separately for her portion of the rent accruing to her and her fellows upon a lease made by the ancestor (c), although it would probably be different if the lease had been made by the coparceners. 6. Mortgagor and Mortgagee. All leases made by a mortgagor subsequent to the mortgage and before the foreclosure, except under an express power {d), are void as against the mortgagee (e) ; but such leases are by estoppel good as between Jac. 91 ; Bellingtam v. Alsop, Joint - Tenants and Tenants in Cro. Jac. 52 ; Clerk v. Clerk, 2 Common, 1 Roll. Ab. 877, (L.) Vern. 323, Litt. s. 289. 48, 52. (x) Henstead's case, 5 Co. Eep. (a) Bac. Abr. tit. Leases, 401 ; 10 b ; Doed. Aslint;. Summersett, Co. Litt. 186 a; Cowpert). Fletcher, 1 B. & Ad. 135, 140. 34 L. J. Q. B. 187. (y) Com. Dig. Estates, (K.) 8 ; (6) Milliner v. Robinson, Moore, Burne v. Cambridge, 1 Moo. & R. pi. 939. 639 ; Heatherley d. Worthingtou (c) Decharms v. Horwood, 10 V. Weston, 2 Wils. 232 ; Doe ^. Bing. 626. Errington, 1 A. & E. 750, (d) Bevan v. Habgood, 30 L. J. (2) Mantle v. Wellington, Cro. Ch. 107. Jac. 166 ; Brooks v. Foxcroft, (e) Powell on Mortgages, 157 ; Clayt. 137 ; Jurdain v. Steere, Keech v. Hall, 1 Doug. 21 ; Cro. Jac. 83 ; Com. Dig. tit. Thunder d. Weaver v. Belcher, 3 Estates (G.) 6, (K.) 8; Bac. Abr., East. 449-451. Digitized by Microsoft® 14 CREATION OF TENANCY. [pART I. the parties (J). The mortgagee in possession cannot make a lease so as to bind the mortgagor if he should afterwards redeem (^), unless to avoid an apparent loss, and merely of necessity. In practice, when it is necessary to make a lease of the mortgaged premises, both mortgagor and mortgagee should join in the lease {h). "With respect to a lease of lands mortgaged after the making of the lease, the tenants may safely continue to pay their rents to the mortgagor until they receive notice from the mortgagee (z). 7. Lords of the Manor and Copyholders. Lords of manors may make voluntary grants of copyholds as well as admittances, according to the custom of the manor (J). Where there is no custom for that purpose, the lord of the manor cannot make a new grant of copyhold {It). By 13 G-eo. III., c. 81, s. 15, lords of manors, with the consent of three fourths of the commoners, may demise for not more than four years any part of the wastes and commons, not exceeding one-twelfth part, for the best rent that can be obtained by auction, the same to be applied in draining, fencing, and improv- ing the residue. A copyholder cannot make a lease for more than one year without a license or by special custom, without thereby incurring a forfeiture of his (/) Cuthbertson v. Irving, 28 Saunders v. Merryweather, 3 H. L. J. Ex. 306. & C. 902. (jr) Hungerfordt). Clay, 9 Mod. ; (i) See -post, Part 4, c. 1, s. 1 Powell on Mortg. 188 ; Frank- 1, Attornment ; 4 Anne, c. 16 linski V. Ball, 34 L. J. Ch. s. 10 ; Trent v. Hunt, 9 Exch. 153. 14-23. (A) Doe d. Barney v. Adams, (_/) Badger v. Ford, 3 B. & 2 C. & J. 232 ; Doe d. Hughes A. 153 ; Rex v. Welby, 2 M. & V. Bucknell, 8 C. & P. 566 ; Car- S. 504. penter v. Parker, 3 C. B. N.S. (i) Rex v. Horuohurch, 2 B. & 206 ; Franklinski v. Ball, siifra ; Aid. 189. Digitized by Microsoft® CH. I.J WHO MAT BE LESSORS. 15 estate (l) ; but he may for a less term by custom of the manor (m). By special custom a copybolder may make a lease for years, or for life, without license from the lord (n). A custom for copyholders in fee to lease for any number of years, without license, on condition of the term ceasing on the lessor's death, is a good custom {o). The powers of leasing given by sect. 32 of 19 and 20 Vict., c. 120 (p), are extended by 21 and 22 Vict, c. 77, s. 3, to the lords of settled manors to give licenses to their copyhold and customary tenants to grant leases. The copyholder, however, having license to demise, ought not to exceed the license (q), but he may lease for a shorter term than that permitted by the license (r). A tenant at will of a manor cannot grant a copyholder license to alien for years ; and if a tenant for life of a manor grants a license to alien for years, it determines at his death (s). A lease by a copyholder, without license of the lord, and contrary to the custom of the manor, is good against all but the lord (f). If a copyholder make a lease with license, the lessee may assign without license, or make an under-lease (u). {I) Anon. Moor. 184 ; East. v. Harding, Cro. Eliz. 489 ; Jack- man V. Hoddesden, Id. 351. (m) 1 Scriven on Copyholds, 457. As to what is a lease by a copyholder for more than one year, see Lady Montague's case, Cro. Jac. 301 ; Luttrell v. Weston, Id. 308 ; Matthews v. Whetton, Cro. Car. 233. (») 1 Scriven on Copyholds, 457. (o) Turner v. Hodges, Hutt. 101. (p) See ante, s. 2, Tenants for Life, p. 5. (q) Hadden v. Arrowsmith, Owen 73 ; Cro. Eliz. 461 ; Jack- son 1). Neal ; Cro. Eliz. 394 ; Com. Dig. tit. Copyhold (K) 3 Doe d. Robinson v. Bousfield, 6 Q. B. 492. (r) Goodwin v. Longhurst. Cro. Eliz. 535 ; Worledge v. Benbury, Cro. Jac. 437 ; Isherwood v. Old- know, 3 M. & S. 382 ; Eaaton v. Pratt, 2 H. & C. 676. (s) Com. Dig. tit. Copyhold (C.) 3. (t) Doe d. Tressider v. Treasi- der, 1 Q. B. 416; Doe d. Robin- son V. Bousfield, 6 Q. B. 492. (u) Com. Dig. Copyhold (K) 3. Digitized by Microsoft® 16 CKEATION OF TENANCY. [part I. 8. Corporations. Corporations. At common law a corporation may make a lease by deed under their seal for any term of years or for lives, consistently with their estate, which lease will be binding upon their successors, except in cases where their power so to demise has been taken away by Act of Parliament, or is aifected by their bye-laws and private statutes (v). The Crown. Municipal corporations. Ecclesiastical and eleemo- synary cor- porations. By the 1 Anne, c. 7, s. 5, the Crown is restrained from granting leases for a longer term than twenty- one years or three lives, and subject to certain condi- tions ; and with respect to building or repairing leases, to fifty years or three lives. The power of municipal corporations to lease their lands is restrained by the 5 & 6 Will. IV., c. 76, ss. 94-96, by which they are prohibited from granting leases for a longer term than thirty-one years without the consent ofthe Lords Commissioners of the Treasury, except in the case of renewed leases (w), and building leases for terms not exceeding seventy-five years. At the common law, ecclesiastical corporations ag- gregate and eleemosynary corporations, could make any lease they thought fit to make consistent with their estate, and so could ecclesiastical corporations sole, with the consent of certain other persons. Thus, for example, archbishops and bishops could make leases with the consent of their dean and chapter (x). (.r) Bisliop of Salisbury's case, 10 Rep. 60 ; Anon. Dyer, 68 b, pi. 7 ; Co. Litt. 301 a ; Bac. Abr. Leases (G) 2. As to the persons by whom confirmation is to be made, see Woodfall, Landlord and Tenant, p. 21, 9th ed. {v) Smith V. Barrett, 1 Sid. 161. But a tenancy from year to year may arise under a demise by a cor- poration not underseal. See Eccle- siastical Commissioners v. Merrall, L. R. 4 Ex. 162 ; 38 L. J. Ex. 93. (w) Att.-Gen. v. Gt. Yarmouth, 21 Beav. 625. Digitized by Microsoft® CH. I.] WHO MAY BE LESSORS. By the 32 Hen. VIII., c. 28, s. 1 (called the Enabling Enabling Statute) (y), all persons seised of lands in fee-simple ^*^*"'''^- in right of their churches (z), (except parsons and vicars) (a), could make leases for twenty-one years, or three lives, without the confirmation of any person, provided they conformed to the conditions imposed by the statute (6). These large powers were found in- convenient in practice, and have been restrained by several statutes (c), the result of which is as follows : — 1. Where archbishops and bishops do not follow Disabling the provisions of the statute 32 Hen. VIII., c. 28, they '*^''*''*''- may make leases for twenty-one years, or three lives (but for no longer period), with the confirmation of their deans and chapters, so that they pursue the provisions of the 1 Eliz., c. 19 (d). 2. All other ecclesiastical corporations sole, includ- ing parsons and vicars with confirmation, and all ecclesiastical and eleemosynary corporations aggregate ie) without confirmation, may make leases for the like period, following the provisions of the 1 Eliz., c. 19, 13 Eliz., c. 10, and 18 Eliz., c. 11; but all ecclesiastical and eleemosynary corporations (except archbishops and bishops) may lease their houses in (y) This Act has been repealed (5) The conditions are stated by 19 & 20 Vict. c. 120, except so ante, p. 3. far as relates to leases made by (c) The following are the Bis- persons having an estate in right abling Statutes : — 1 Eliz. o. 19 ; 13 of their churches. Eliz. o. 10; 14 Eliz. o. 11; 18 (2) This extends to preben- Eliz. c. 11; 39 Eliz. c. 5, s. 2; 1 daries, chancellors, archdeacons, Jao. I. c. -3. By the 43 Eliz. c. 9, precentors. Acton v. Pritcher, s. 8, all judgments had for the 4 Leon. 51 ; Watkinson v. Mann, intent to have and enjoy any lease Cro. Eliz. 349 ; Bisco v. Holt, contrary to the above statutes, are Lev, 112, Sid. 158. It has been declared void, doubtedwhetheraperpetualcurate (d) See Bac. Abr. tit. Leases, is within this Act. Doe d. Richard- p. 330. son V. Thomas, 9 A. & E. 556. (e) Case of Magdalen College, (a) See sect. 4, 11 Rep. 76. B Digitized by Microsoft® CREATION OF TENANCY. [PABT I. cities and towns, corporate boroughs, or market- towns, with not more than ten acres of land appurtenant, for forty years, subject to the provisions of the 14 Eliz., c. 11, ss. 17, 19 (/). These statutes were further amended by the 39 & 40 Geo. III., c. 41, which permitted ecclesiastical corpora- tions, sole or aggregate, to apportion the rents of lands formerly demised by one lease among the several parts in which it might be demised {g). The 6 & 7 Will. IV., c. 20, explained by the 6 & 7 Will. IV., c. 64, imposed certain restrictions on the re- newal of leases by ecclesiastical persons. Enabling stat- utes. By the 5 Vict., c. 27 (h), incumbents of ecclesias- (/) Bac. Abr. tit. Leases, p. 331 ; Crane v. Taylor, Hob. 269 ; Hunt V. Singleton, Cro. Eliz. 564. The three statutes (13 Eliz. i;. 10, 14 Eliz. 0. 11, 18 Eliz. u. 11) are to be read together as forming one law on the same subject-matter, and where leases of houses, &.O. , which were exempted out of the 13 Eliz. by the 14 Eliz., do not observe the provisions of the latter statute, they fall within the general enact- ments of the first statute, and are made void thereby. In other - words, a lease not warranted by 14 Eliz. remains restrained by the 13 Eliz., which makes leases against that act void. Per Tindal, C.J., in Vivian v. Blomberg, 3 Bing. N.C. 324, 325. It is ap- parent from the statutes 32 Hen. VIII. c. 28, and 13 Ehz. c. 10, that the Legislature meant to confine the authority to let to lands formerly let, and capable of pro- ducing profit. Goodtitle d. Clarges V. Hunuear, 2 Doug. 565. As to construction of these statutes, see Doe d. Tennyson v. Lord Yarbor- ough, 7 Moore, 258, S.C. 1 Bing. 24 ; Bac. Abr. tit. Leases ; 1 Piatt on Leases, p. 240 ; and Chitty's Statutes, "Leases." A lease de- clared void by the 13 Eliz. has been held good during the life of the lessor, per Bayley, J. , in Doe d. Bryan v. Banks,' 4 B. & A. 407 ; and even after the lessor's death such a lease is not void, but void- able, and may be coufirmed by his successor, per Holroyd, J., in Edwards v. Dick, 4 B. & A. 217. (g) See Doe d. Shrewsbury v. Wilson,5 B. &A. 386 ; Doed Egre- mont V. Williams, 11, Q. B. 688. (7j) Previous to this statute aU colleges, cathedrals, and other ecclesiastical or eleemosynary cor- porations, and all parsons and vicars, were restrained from mak- ing any leases of their lands unless under the following regu- lations : — 1st, The leases not to exceed twenty-one years, or three lives from the making ; 2d, The accustomed rent or more was to be yearly reserved thereon, re- specting which the 39 & 40 Geo. III. c. 41, is particularly explana- tory ; 3d, Houses in corporation or market towns might be let for forty years, provided they were Digitized by Microsoft® CH. I.] WHO MAY BE LESSORS. 19 tical benefices were enabled, with the consent of the bishop and patron, to lease lands (i) belonging to their benefices on farming leases for fourteen years, subject to certain restrictions. And by the 24 & 25 Vict., c. 105, no grant by copy of court-roll, or any lease by any future prebendary (j), rector, vicar-per- petual, curate, or incumbent of their lands is to be valid, unless made in conformity with the provisions oftheS Vict., c. 27 (k). By " The Ecclesiastical Leasing Act (1842) " (/), as amended by " The Ecclesiastical Leasing Act (1858) " (m), all ecclesiastical corporations, sole and aggregate, are enabled, wit/i the consent of the Ec- clesiastical Commissioners for England, and with such further consents as are therein mentioned, to grant building and repairing leases for any term not ex- ceeding ninety-nine years {n); leases of running water, way-leaves, and other rights and easements, for any term not exceeding sixty years (. Coekell, see supra. ner's Case, Cro. Jac. 532), yet, in Digitized by Microsoft® CH. I.J WHO MAY BE LESSOES. 21 object being the proper management of parochial pro- perty, applies to those cases only where the rents are applicable solely to parochial purposes, which are un- der the control of parish officers (u) ; and the terms of the statute must be strictly followed in the execu- tion and drawing of the leases (v). Copyholds do not appear to be within the Act (m). 10. GrUAEDIANS. A guardian in socage {x) may make leases of the Guardians in infant's land in his own name, for he has not merely ^°°^g®- a bare authority, but an interest in the land descended (y) ; and a guardianship by election involves a similar power of leasing the estate of the infant {z). Such leases, if they extend beyond the time of the guar- dianship, may be confirmed by the infant on attaining full age (a). A guardian by nature cannot make any leases either in his own name or in the name of the infant (3). It is said that he may make a lease at will (c). («) Per Parke, B., Uthwatt v. (y) Shopland v. Eyoler, Cro. Elkins, 13 M. & W. 777 ; Allason Jao, 55-59, 1 Blac. Com. 461, Co. V. Stark, 9 Ad. & E. 255 ; Att.- Litt. 87 b; R. v. Oakley, 10 East. Gen. V, Lewin. 8 Sim. 366. See 494 ; Eyre v. Countess of Shaftes- also Goulds-worth v. Knight, 11 bury, 2 P. Wms. 108; R. . Benham, 7 Q. B. 293; Willis v. Whitewood, 1 976 ; Doe d. Bowley v. Barnes, 8 Leon. 322, Keilw. 46 b. Q. B. 1037. (z) 1 Blac. Com. 462 ; Co. Litt. (v) Phillips V. Pearoe, 5 B. & 87 b ; Pitcairn v. Ogbourne, 2 0. 433 ; Doe d. Landsell v. Gower, Ves. 375. 21 L. J. Q. B. 57 ; 17 Q. B. 589 ; (a) Bac. Abr. tit. Leases (I) 9. Woodcocks Gibson, 4 B.&C.462. (6) Bac. Abr. tit. Leases (I) {w) Doe d. Bailey v. Foster, 3 9. C. B. 215. (c) Willis v. Whitewood, Owen, {x) Bao. Abr. tit. Leases (I) 9. 45, 1 Leon. 322 ; Pigot v. Garnish, See Crabb's Digest of the Statutes, Cro. EHz, 678; Bao. Abr. tit. vol. i. p. 39. Leases (I) 9. Digitized by Microsoft® 22 CEBATION OF TENANCY. [PAET I. Testamentary A testamentary guardian, or one appointed pur- guardians. ^^^^^^ ^^ ^j^g 12 Car. II., c. 24, ss. 8-11, is the same in interest and otfice as a guardian in socage (d). But it has heen doubted whether a lease for years, made by the testamentary guardian of an infant, is not abso- lutely void (e). A guardian appointed by the Lord Chancellor must obtain the sanction of the Court of Chancery before he can make a lease (/). 11. Executors and Administrators. Executors and Executors and administrators, after they have ob- tora"^'"'"'^' tained letters of administration, may, by virtue of their office, dispose absolutely of terms of years, which are vested in them in right of their testators or intestates (gi). A lease by one of several executors is as valid as if made by all, and the same rule applies to ad- ministrators (k). Where a testator specifically be- queathed by will a term of years, and the executor or administrator with the will annexed assents to the bequest, and afterwards leases the same, such lease would be void, as the legal interest in the term is vested in the legatee upon such assent ; but until (d) Ibid. See IBlao. Com. 462; o. 77 ; Rex v. Sutton, 3 A. & E. R. V. Thorp, Garth. 384 ; Pigot v. 608 ; -Re James, deceased, L. E. 5 Garnish, Cro. Eliz. 678, 734 ; Eq. 334. See ante, p. 5, Tenant Roach V. Garvan, 1 Ves. 158. for Life. (e) Roe d. Parry v. Hodgson, 2 {g) 2 'VVms. Executors, 878, Wils. 129, 135. A devise to a per- 6th edition; Bac. Abr. tit. son as guardian, that he may " re- Leases (I) 7 ; Roe d. Bendall r: oeive set and let" for his ward, Summerset, 2 Wm. Blao. 692 ; gives him an authority only, and Waukford v. Wankford, 1 Salk. rot an interest. Pigot v. Garnish, 301 ; Hudson v. Hudson, 1 Atk. Cro. Eliz. 678. 461. (/) See 11 Geo. IV. & 1 Will. {h) Doe d. Hayes v. Sturges, 7 IV. c. 65, B. 12 ; 19 & 20 Vict. Taunt. 217 ; Simpson v. Gutte- u. 120, amended by 21 & 22 Vict. ridge, 1 Mad. 609, 616. Digitized by Microsoft® CH. I.J WHO MAY BE LESSORS. 23 then, the term remains in the executor, who can dis- pose of the same (z). An infant may be appointed executor, but if sole executor, by the 38 Geo. III., c. 87, s. 6, he is alto- gether disqualified from executing his office during his minority, and administration, with the will annexed, is usually granted to the guardian of such infant, or to such other person as the Court shall think fit, until such infant attains twenty-one (J). A married woman may be appointed executrix, but her husband has a joint-interest with her in the effects of the testator. She can, therefore, do no act as exe- cutrix or administratrix without her husband's con- sent. The husband is enabled by law to assume the whole administration, and to act in it to all purposes without her consent (Ji). 12. Trustees of Bankrupts. Leases could formerly be made by assignees of Trustees of bankrupts, and may now be made by the trustees ''^■^'^^pt^- under the new Act (/). 13. Persons under Disability. A lease executed by a person of unsound mind, in Lunatics and the ordinary course of affairs, is binding on him and ' ° ' (i) Paramour r.Yardley, Plowd. (j) 1 Wms. on Exors. 222, 6th 639 ; Young x. Holmes, 1 Stra. edition ; Finch's case, 6 Co. Rep. 70 ; Doe A. Lord Say and Sele 63 ; Prince's case, 5 Co. Rep. 29 ; V. Guy, 3 East. 120, 4 Esp. 154 ; Cro. Eliz. 718. Johnson v. "Warwick, 17 C. B. {Ji) See •post. Married Women, 516 ; Fenton v. Clegg, 9 Exch. p. 26 ; Arnold -o. Bidgwood, Cro. 680 ; Doe d. Sturgess v. Tatchell, Jac. 318 ; Thrustout d. Levick v. 3 B. & Ad, 675 ; Doe d. Maberley Coppin, 2 Wm. Blac. 801 . V. Maberley, 6 C. & P. 126 ; 2 (?) See the 32 & 33 Vict. c. 71, Wms. on Exors. 1275, 6th editiori, s. 14, pi. 4, post. Part 4, c. 2, 3. 4. Digitized by Microsoft® 24 CKEATION OF TENANCY. [PAKT I. those who represent him, unless it can be shown that the lessee had notice of the lessor's state of mind. If it can be proved that the lessee knew, or ought to have known, of the lessor's incapacity, and took advan- tage of it, a lease executed under such circumstances is void (m). By the 16 & 17 Vict., c. 70, s. 129, the committee of a lunatic may make building and other leases ; by sects. 130 and 131, he may make mining leases; by sect. 133, he may execute leasing powers of a lunatic having a limited estate; by sect. 134, he may renew leases (n). And by the 15 & 16 Vict., c. 48, committees of lunatics can direct repairs and improvements upon the land of lunatics, or make allowances to tenants exe- cuting the same. By the 36 sect, of the 19 & 20 Vict., c. 120, all powers (o) given by that Act, and all applications to the Court of Chancery, and consents to such applications, may be given by the committees on behalf of lunatics ; but in case of a lunatic tenant in tail, no application to the Court, or consent to such application, is to be made or given by committees without the special direction of the Court. Persons in a A lease made by a person when deprived of his reason tox^icatiolT' ^^ drink is void, if the lessee had notice of the lessor's incapacity (jo). (m) Molton v. Camrour, 2 Ex. 487, in error, 4 Ex. 17 ; Elliot v. Ince, 7 De G. M. & G. 475, 487, 26 L. J. Ch. 821 ; Beavan v. M'Don- nell, 10 Ex. 184, 23 L. J. Ex. 327. (») As to disposing of undesir- able leases, see sect. 127. (o) See ante, Tenants for Life p. 5. (p) Gore V. Gibson, 13 M. & W. 623. See Per Alderson, B. , in Molton V. Camrour, 2 Ex. 491 ; Pitt V. Smith, 3 Camp. 33. Digitized by Microsoft® CH. I.J WHO MAY BE LESSORS. 25 A lease made by a person under duress is voidable Persons under at the election of the party intimidated. Duress is ^^'''^^^• defined to be where one is manifestly imprisoned or restrained of his liberty contrary to law, until he executes a deed or bond to another (q). Real estate was not forfeited on conviction for trea- Persons at- son or felony without attainder ; and persons attainted **i"*^'i '^ of treason or felony might, before office found, lease their lands, except as against the Crown, or the lord of whom the land is held (r). And now, by the 33 & 34 Vict., c. 23, forfeitures for treason or felony are abol- ished, except forfeiture consequent upon outlawry. A convict (s), against whom judgment of death or penal servitude has been pronounced or recorded upon any charge of treason or felony, is, while subject to the Act, incapable of alienating or charging any property, or making any contract, except as thereinafter pro- vided (t). By sects. 9 to 12, an administrator under the Act has absolute power to let, mortgage, &c. , any part of the property of the convict which he shall think fit. By sect. 18, the property reverts to the convict, ex- cept so far as is necessary for the care of the property, upon completion of his sentence or pardon, or to his representatives upon his death. By 22 & 23 Vict., c. 21, s. 25, " When a right of entry upon lands or other hereditaments shall have accrued to Her Majesty or her successors, such right (}) Knight and Norton's case, 3 & C. 584 ; Doe d. Griffith v. Prit- Leon. 239, 2 Inst. 482; Gumming chard, 5 B. & Ad. 765. V. Inoe, 11 Q. B. 112. (s) See sect. 6. ()•) Doe d. Evans v, Evans, 5 B. (t) Sect. 8. See sect. 30, where the convict is lawfully at large. Digitized by Microsoft® 26 CEEATION OF TENANCY. [PAET I. may be exercised or enforced without any inquisition being taken or office being found, or any actual re- entry being made on the premises." It would seem that "such right must be exercised or enforced " before an attainted felon would become incapable of leasing his lands. A lease or assignment of the personal estate of a felon before a conviction, if bona fide and for good consideration, is valid even as against the Crown iu). women. Married A Icase by a feme covert is void at common law, and no subsequent act of confirmation, after the removal of the disability, can render such a lease valid (w). For by marriage the free agency of the wife is sus- pended, and the husband acquires an immediate right to the rents and profits of her freehold estates (w). Without his consenting to and joining in the disposal of her lands, all conveyances by her are void at com- mon law, and over her chattel interests (not being choses in action) the husband has the sole dominion during his life {os). By the Act for the abolition of fines and recoveries (y), married women, being tenants in fee, in tail, or for life, or for years, may make leases by deed for any term consistent with their estates, provided the hus- band concurs in the deed, and the wife acknowledges it before a judge, or before two perpetual commis- sioners, as directed by the Act (^), or before a county court judge (a). (tt) Morewood v. Wilks, 6 C. & (s) Manby v. Soott, Smith's L. P. 144 ; Shaw v. Bran, 1 Stark R. C. 2 ; Blao. Com. 293 ; Co. Litt. 319; /re « Saunders u. Watson, 4 46 b. But see jjost, "Married Giff. 179, 32 L. J. Ch. 224 ; Per- "Women's Property Act, 1870," kins i). Bradley, 1 Hare 219 ; Part 4, o. 2, s. 3. Whitaker v. Wisbey, 12 C. B. 44 ; (y) 3 & 4 Will. IV. c. 74, as. 77- Chowne v. Baylis, 31 Beav. 351. 79. (i!) Goodright A. Carter -c. (z) Sect. 79. Strahan, Cowp. 201, Lofltt. 763. (a) 19 & 20 Vict. c. 108, s. 73. (w) See ante, p. 10, Husband The lease requii-es enrolment in Leasing Wife's Land. Chancery if the married woman Digitized by Microsoft® CH. I.] WHO MAY BE LESSORS. 27 A married -woman, wlio 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 it accordingly {b). And property acquired by a married woman under the " Married Women's Property Act, 1870 " (e), is deemed to be property held and settled to her separate use. A lease made by an infant {d) or person under the infants, age of twenty-one years (e) is voidable {/). On his attaining full age, he, or his heir upon his death, can elect to ratify or avoid such a lease (y). To avoid a lease made by an infant, under which the lessee is in possession, some act of notoriety is necessary on the part of the infant upon attaining twenty-one; for instance, ejectment, entry, or demand of possession. The mere execution of a new lease to another lessee is not sufficient to divest the estate created by the first lease (Ji). The chief point to be attended to in considering what amounts to a confirmation is, whether the lease was for the benefit of the infant(2'). Thus where a lease made by an infant manifestly imports a benefit to himself, he cannot upon at- taining full age avoid the lease on the ground of infancy if he still retains the benefit, and, within a reasonable time after he comes of age, does not dis- is a tenant in tail. See ante, 4 Cruise, 74, s. 67 ; per Best, J., Tenants in Tail, p. 2. in Goode v. Harrison, 5 B. & (6) Sugden on Powers, c. 4, s. Aid. 159 ; and per Buller, J., 1. in Maddon v. White, 2 T. R. (c) See infra, Part 4, c. 2, s. 161. 3. (g) Baylis v. Dineley, 3 M. & (d) See^osi, o. 2, s. 1. S. 477 ; Litt. ». 547. (e) By custom in some places (h) Slater v, Trimble, 14 Ir. an infant is of full age at fifteen Com. L. R. 342 Q. B. ; Slater v. to make leases that shall bind Brady, ib. 66. him. Co. Litt. 45 b. («) Zouch d. Abbot v. Parsons, (/) Bao. Abr. Leases; Zouch d. 3 Burr. 1798 ; Ex parte Grace, 1 Abbot v. Parsons, 3 Burr. 1806; B. & P. 377. Digitized by Microsoft® 28 CEEATION OF TENANCY. [PAKT I. affirm the lease (J). And slight acts have been held to amount to a confirmation of such leases. Thus where an infant made a lease for years, and at full age said to the lessee, " God give you joy of it," this was held to be a confirmation of the lease {k). So where an infant makes a lease, and accepts rent after coming of age, he thereby affirms the lease {l). So where an infant made a lease of land, and after attaining full age mortgaged the land by a deed which recited the lease, this was held to be a confirmation of the lease (m). An infant can make a lease without rent, to try his title (n). The lease of an infant, to be good, must be his own personal act, for he cannot appoint an agent. There- fore a lease made by his next friend or agent cannot bind him, nor can he ratify it after he is of full age (o). But an infant is bound by a lease made in his corporate capacity (/>). Thus a lease by the king or queen regnant, whether of lands held in right of the Crown or of the Duchy of Lancaster, cannot be avoided on the ground of infancy (q). By the 11 Geo. IV. & 1 Will. IV., c. 65, ss. 16, 17, infants are empowered to grant renewals of leases under the direction of the Court of Chancery, and the Court can direct leases of land belonging to infants when it is for the benefit of the estate (r). (j') Ashfield V. Ashfield, Sir W. (n) Zouch (i. Abbot v. Parsons, Jones, 157 ; Ketsey's case, Cro. 3 Burr. 1798. Jac. 320 ; Holmes v. Blogg, 8 (o) Doe d. Thomas v. Roberts, Taunt. 35 ; Evelyn v. Chichester, 16 M. & W. 778. 3 Burr. 1717. {p) Bro. Abr. tit. Age, pi. 80. (A) Anon. 4 Leon. 4 ; Eao. Abr. (}) Case of Duchy of Lancaster, tit. Estate (B). Dyer, 209 b, Plowd. 212 b. {I) Ashfield V. Ashfield, Sir W. ()■) See ante, Tenants for Life, Jones, 157. p. 6 ; 19 & 20 Vict. o. 120 ; and (m) Story v. Johnson, 2 J. & C. Guardians, ante, p. 21. Exoh. 586. Digitized by Microsoft® CHAPTER II. WHO MAY BE LESSEES. p 1. Peesons under Disability AOB 2. CoEPOKiTIONS — ... PAGB ... 32 lunatics persons outlawed aliens and denizens 29 29 30 corporations ecclesiastical persons ... 32 ... 32 married women 31 3. Parish Opficers, &c. ... 33 infants 31 All persons are capable of being lessees of demisable property; in some cases demises, however, may be avoided in respect of the persons to whom they are made (a). 1. Peesons under Disability. Idiots and lunatics may take leases for their own Lunatics, benefit (3). The committee of a lunatic may surrender leases and accept renewals for the benefit of the lunatic, upon certain conditions, under the 16 & 17 Vict., c. 70, ss. 113-115; and the committee, or an attorney appointed by the lord of the manor, may, by sect. 108, be admitted tenant of copyhold land on behalf of the lunatic. Outlaws may be lessees, but leases taken by them Persons out- for chattel interests are forfeited to the Crown (c). }.^7^f J"" ^^^ Persons attainted may be lessees, but their leases were (a) 2 Cruise Dig. 79, s. 85 ; Kettley v. Elliot, Cro. Jao. 320 ; Brownl. 120, 2 Bulst. 69. (I) Co. Litt. 2 b. (c) Knowlesf. Powell, Owen, 16; Brittain v. Cole, 1 Salk. 395 ; Bac. Abr. tit. Outlawry (D) 2. Digitized by Microsoft® 30 CREATION OF TENANCY. [PART I. forfeited to the Crown {d). But by the 33 & 34 Vict., c. 33, ss. 1, 10, forfeiture for treason or felony, ex- cept that consequent upon outlawry, is abolished, and the property of the convict vests in the administrator under the Act (e). Aliens and At common law an alien friend might take a lease denizens. ^^ ^ ^^^^^ ^^ ^f Ij^^^g . jj^^ t]^g estate thereby granted upon office found would forthwith devolve to the Crown (/). But an alien friend who is a merchant might take a lease of a house for carrying on his trade, and the Crown could not seize such lease, unless he abandoned the realm {g). An alien husband will not be entitled to a term vested in the wife {K). By the 7 & 8 Vict., c. 66, s. 4, alien subjects of a friendly state may take and hold personal pro- perty, except chattels real ; and by sect. 6 (e), alien friends may take and hold land for twenty-one years, for the purpose of residence, or of occupation by them or their servants, or for the purpose of any trade, busi- ness, or manufacture, as fully as if they were natural- born subjects. By sect. 6, aliens, when naturalised (d) Co.Litt.2b;Sliep.Touch.235. (i) Sect. 5 in effect repealed the (e) Seeamfe, p. 25. 32Hen.VIII. i;. 16, s.l3,by which (/) Co. Litt. 2 b ; Shep. Touch. all leases of dwelling-houses or 235 ; Calvin's case, 7 Rep. 49. As shops to an alien artificer or to purchases by an alien in the handicraftsman were made void, name of a trustee, see R. v. Hoi- This Act was strictly construed land, Styles, 20, S. C. 1 Roll. Ahr. in favour of aliens. See Jeveus 194, 1, 13. V. Harridge, 1 Wms. Saund. 5th (g) Co. Litt. 2 b ; see R. v. East- ed. 6, and notes ; Co. Litt. 2 b ; and bourne, 4 East. 107. But on the Hargrave and Butler's notes, n 7. death of the lessee the lease shall See Pilkiugton v. Peach, 2 Show, go to the Crown, and not to his 134. For decisions on this section, executors or administrators. Co. see Lapierre v M'Intosh, 9 Ad. Litt. 2 b ; but see Anon. 1 And. & E. 157 ; Wootton v. Steffeuoni, 25, and Sir Upwell Caroon's case, 1 2 M. & W. 1 29 ; Bailey v. Cathery, Cro. Car. 8. 1 Dowl. N.S. 456. (A) Theobald v. Duffy, 9 Mod. 102 ; 2 Yin. Abr. 260. Digitized by Microsoft® CH. II.] WHO MAY BE LESSEES. 31 pursuant to the provisions of this Act (j), are to enjoy the same rights as natural-born subjects. Alien enemies cannot hold leases for any purpose whatever. A denizen (k) may take lands by purchase or de- vise, but not by inheritance. He may therefore be a lessor or lessee (I). Kfeme covert (iri) can take a lease, her husband's ex- Married press assent not being necessary, as the estate vests °™^°" till dissent. But she may avoid it after his death (n). If a lease be made to a husband and wife, and she agree to it, she must pay the rent, and she will be chargeable with the arrearages incurred during the coverture and for waste (o). By the 1 Will. TV., c. 65, ss. 12, 15, leases to married women, under the direction of the Court of Chancery, may be surrendered and renewed as therein stated. Infants may accept leases, and upon attaining infants, full age they may affirm or avoid them {p). The election to avoid a lease must be made by the infant within a reasonable time after he comes of age {q). But it seems that an infant who has taken possession (j) Sects. 7-14, 16. See s. 15, (o) Com. Dig. tit. Baron and wliich. reserves to aliens rights Feme, s. 2 ; 2 Inst. 303 ; 2 Roll, enjoyed before the Act passed. 287 ; 1 Roll. Abr. 349, pL 2 ; Doe d. MUler v. Rogers, 1 C. & K. Brownl. 31 ; Dyer, 13 b. 390. (p) Ketsey's case, Cro. Jao. 320 ; (k) Co.Litt.l29 a; Calvin'scase, Baylis v. Dyneley, 3 M. & S. 477. 9 Rep. 25 b. (q) Holmes ii. Blogg, 8 Taunt. (Z) 1 Blao. Com. 374. See 12 & 35. If an infant pay money as a 13 Will. III. 0. 2. premium for a lease, which he (m) See post, Part 4, o. 2, s. 3. avoids upon coming of age, and (n) Swaine v. Holman, Hobart, never derives benefit from the 204 ; Co. Litt. 3 a. See Gaston v. occupation, he cannot recover such Frankum, 2 De G. & S. 561, as money in an action for money had to a married woman's separate and received. Holmes w. Blogg, estate being bound for payment supra, of the rent. Digitized by Microsoft® 32 CREATION OF TENANCY. [part I. under a lease whicli is disadvantageous to him, is bound, after coming of age, until he disclaims (r). Eyen during infancy he may be liable for the use and occupation of necessary/ lodgings suitable to his de- gree (s). If a person jointly interested with an infant in a lease obtain a renewal to himself only, and the lease prove beneficial, he shall be held to have acted as trustee, and the infant may claim the share of the benefit ; but if it do not prove beneficial, he must take it on himself (^). By the 1 Will. IV., c. 65, ss. 12, 15, leases to infants may, under the direction of the Court of Chancery, be surrendered or renewed in the mode therein stated. 2. Corporations. Corporations. Corporations (u) aggregate may be lessees (v). A lease however to a corporation sole (for instance, a lease to a bishop and his successors), on the death of the bishop ^will go to his executors (w) ; but by custom it may go to his successors, as in the case of the Cham- berlain of London (x). One member of a corporation cannot make a lease to another member, nor can he take a lease from the corporation (y). By the 1 & 2 Vict,, c. 106, s. 28, spiritual persons performing the duties of any ecclesiastical ofiice cannot take leases for occupation by themselves of more than eighty acres of land without the written permission of the bishop of the diocese. (m) See ante, o. 1. (v) Bao. Abr. tit. Corporations (E)4. (w) Co. Litt. 46 b. (x) 2 Bao. Abr. 14. iy) Salter v. Grosvenor, 8 Mod. 303. Eoclesiastioal persons. (r) The London and North-West- ern Railway Co. v. M'Michael, 5Exch. 114,20 L. J. Ex. 97. (s) Hands v. Slaney, 8 T. E. 578 ; Loweti.Grifaths, 1 Scot. 458. (t) Ex parte Grace, 1 B. & P. 376. Digitized by Microsoft® CH. II. j WHO MAY BE LESSEES. 33 Trustees for diaritable uses may take leases of land in England or Wales, if made according to the Mortmain Acts (z). Leases made in pursuance of the 31 & 32 Vict., c. 44, entitled " An Act for facilitating the acquisition and enjoyment of Sites for Buildings for Religious, Educational, Library, Scientific, and other charitable purposes," are exempt from the provisions of the Mortmain Act. By the 59 G-eo. IIL, c. 12, ss. 12, 17, churchwar- Parish officers, dens and overseers are made a corporation of a pecu- liar kind, and can take land on lease for the purposes of the Act (a). Guardians of unions may, by order of the Poor- law Commissioners, and with the consent of the rate- payers, hire buildings for union workhouses, pursuant to the 4 & 5 Will. IV., c. 76, s. 23. By the 30 & 31 Vict., c. 106, s. 13, the guardians may, with the approval of the Poor-law Board, hire or take on lease temporarily, or for a term of years not exceeding five, any land or buildings for the pur- pose of the relief or employment of the poor, and the use of the guardians or their officers, without any order of the said Board under seal. (z) 9 Geo. II. 0. 36; 9 Geo. Sim. 84; Ashtoni;. Joiies,28BeaT. IV. c. 85 ; 2i& 25 Vict. o. 9 ; 25 460. & 26 Vict. c. 17 ; 26 & 27 Vict. (a) See ante, p. 20, o. 1, s. 3; c. 106 ; 27 Vict. o. 113 ; 29 & 30 Smith v. Adkins, 8 M. & W. 362 ; Vict. c. 57 ; Wickhamw. Marquia Uthwatt v. Elkina, 13 M. & W. of Bath, 35 L. J. Ch. 5 ; Doe d. 777 ; Allason v. Stark, 9 A. & E. Williams v. Lloyd, 5 Bing. N". G. 255 ; Att.-Gen. v. Lewin, 8 Sim. 741 ; Walker v. Richardson, 2 M. 366. & W. 882 ; Att.-Gen. v. Glyn, 12 Digitized by Microsoft® 34 CREATION OF TENANCY. [PAET I. By the 24 & 25 Vict., c. 125, overseers of parishes in England, whose population does not exceed 4000 persons, may, subject to the conditions, and for the purposes therein mentioned, take land on lease (J)). (J) As to leases to trustees of friendly societies, see 18 & 19 Vict. c. 63 ; leases to trustees of public baths, 9 & 10 Vict. c. 74. As to canal and railway companies, see 21 & 22 Viet. c. 75, s. 3 ; 23 & 24 Vict. c. 41. As to leases of land for free public libraries, museums, see 18 & 19 Vict. c. 70,8.18. Leases to ratepayers for publicimprovementsmay be made pursuant to 23 & 24 Vict. u. 30. A lease cannot generally be grant- ed to the inhabitants of a parish, see Weekly v. Wildman, 1 Lord Raymond, 405, 407; Abbot e. Weekly, 1 Lev. 176 ; Lockwood V. "Wood (in error), 6 Q. B. 62 ; Constable v. Nicholson, 14 C. B. N.S. 230, 32L. J. C. P. 240. But see The Vestry of Bermondsey r. Brown, \i W. R. 213 M. R. Digitized by Microsoft® CHAPTER III. WHAT MAY BE LEASED. PAGE PAGE 1. Things in Grant, . 36 offices 39 advowsons, . 36 pensions. 40 tithes, . 36 rents and annuities, 40 commons and estovers, . . 37 other incorporeal heredi- ways, . 38 taments, 40 corrodies. . 38 2. Things in Livery, 41 franchises, . 39 lodgings, 41 tolls, . 39 As a general rule, leases for life or lives, for years or at will, may be created of anything corporeal or in- corporeal that lieth in livery (a) or in grant (d). But where there is a demise of premises, and an entire rent is reserved, if any part of the premises could not be legally demised, the demise is void (c). Goods and chattels may also be leased for years. Thus cattle and other live or dead stock may be de- mised, and the lessee will have the use and profit of them during the term. The interest, however, of the lessee therein differs from the interest which he has in lands. For the lessor can have no certain rever- sion in live animals, and though the lessee has no right to sell or destroy them or give them away, yet, if they (a) Now by the 8 & 9 Vict. c. 106, s. 2, all corporeal tenements and hereditamenta are deemed to lie in grant, so far as regards the conveyance of the immediate free- hold. (5) Shep. Touch. 268 ; Bac. Abr. tit. Leases (A); 2 Cruise, ss. 22- 24. (c) Doe d. Griffith v. Lloyd, 3 Esp.jyS ; Gardiner v. Williamson, 2 B. & Ad. 336. Digitized by Microsoft® 36 CREATION OF TENANCY. [part I. die during the term, they hecome the absolute pro- perty of the lessee {d). So, whether they live or die, the young ones coming from them belong absolutely to the lessee as profits arising from the animals de- mised. In a lease of dead goods and chattels, how- ever, if anything be added for repairing, mending, and improving thereof, the lessor shall have the im- provements and additions with the things demised after the term is ended (e). 1. Things in G-kant. Incorporeal hereditaments are rights issuing out of a thing corporate (whether real or personal), or concerning or annexed to or exercisable within the same {/). They lie in grant, and are usually capable of being the subjects of a demise. Advowsons. Advowsons may be demised (g). Thus, if an advow- son, or tithes, or any incorporeal hereditament, is leased for years, an action of debt may be maintained for the rent agreed on (/«). So if avacancy occur while an advowson is leased, the lessee shall present, and if the lessee himself accepts a presentation from the lessor, it will be a surrender of his term (i). Tithes. Tithes are an ecclesiastical inheritance collateral to the land, and properly due to an ecclesiastical person {j ). {d) Bao. Abr. Leases (A) ; Litt. s. 71 ; GoUius v. Harding, Cro. Eliz. 606. (e) Bac. Abr. Leases (A). (/) Co. Litt. 19, 20. (g) Kensey v. Langliam, Cas. temp. Talbot, lil; Robinson v. Tongue, 3 P. Wms. 461. See infra, Tithes, 5 Geo. III. o. 17. (A) 2 Woodd. 69 ; Rog. Ecc. L. 17 ; Co. Litt. 119 b. (i) Bac. Abr. tit. Leases (A) ; 2 Cruise, 22, 24 ; Bousher v. Mor- gan, 2 Aust. 404; Gybson v. Searle, Cro. Jao. 84. 0) Comyn's Digest, Bismes (A). Although, in common parlance, tithes were often said to be let to the farmer, and although such ar- rangements were common through- out England, and were constantly carried into effect without deed, Digitized by Microsoft® CH. III.] WHAT MAY BE LEASED. 37 By the 5 Geo. III., c. 17 (/e), it is enacted, that leases already made, or that shall be made, of tithes, tolls, and other incorporeal hereditaments, for one, two, or three life or lives, or for any term not ex- ceeding twenty-one years, by ecclesiastical persons, or any other person who is enabled by statute to make leases for one, two, or three life or lives, or for any term not exceeding twenty-one years, of any lands, tenements, or corporeal hereditaments, shall be valid as against such lessors and their successors. Common, or right of common (a profit which a Commons and man hath in the land of another, as to feed his beasts, ^^^°''^^^- to catch fish, to dig turf, or to cut wood), can be de- mised (l). The 13 Geo. III., c. 87, s. 75, empowers the lord of any manor, with the consent of three-fourths of the persons having the right of common upon the wastes yet in point of fact these species of arrangements, made without deed, hy which the tenant retained the tithes, and paid the clergyman or other tithe-owner a yearly sum, were not feasesintheeyeofthelaw, but mere sales by the tithe-owner to the terre-tenant ; and the proof of this was, that if the tithe-owner found it necessary to bring an action for the stipulated sum, he declared not for rent, but for tithes sold and delivered, just in the same form in which the vendor of any other sort of goods declared. In common parlance, however, it was very usual to de- nominate such an arrangement a letting of the tithes, and indeed it did so far resemble a yearly tenancy, that, in the absence of express stipulation to the contrary, it required half a year's notice to put an end to it. Smith's Land- lord and Tenant, p. 77. See Goode v. Howells, 4 M. & W. 198 I'Sealev. Mackenzie, 2 C. M. & R. 84, S. C. (in error); 1 M. & W. 747 ; Bird v. Higginson, 2 A. & E. 696 ; Thomas v. Fre- dericks, 10 Q. B. 775 ; Meggisoni). Lady Glamis, 7 Ex. 685. [k) As to leases of tithes made before this statute, see Shep. Touch, 241 ; Brewer ■„. Hill, 2 Anst. 413 ; Bousher v. Morgan, ib. 404 ; Walker v. Wakeman, 1 Vent. 294 ; 2 Lev. 150 S. C.nom.; Wakeman v. Walker, 1 Keb. ,597 ; The Dean and Chapter of Wind- sor V. Gover, 2 Saund. 302, 304, (12). See infra, Part 2, Div. 1, c. 2, ss. 1, 2, and Part 3, c. 2. (I) Sury V. Brown, Latch. 99 ; Benson v. Chester, 8 T. E. 396, 401 ; Clark v. Cogge, Cro. Jac. 170, 190 ; 1 Stephen's Blackstone, Digitized by Microsoft® 38 CKEATION OF TENANCY. [PAET I. and commons within the manor, at any time to de- mise or lease, for any term or number of years not exceeding four, any part of such wastes and commons, not exceeding a twelfth part thereof, for the best and most improved yearly rent that can be obtained by public auction. The clear net rents are to be applied to fence, drain, and otherwise improve the residue of the wastes and commons. Estovers (m) (a reasonable allowance of wood, fuel, and repairs that every tenant for life may take of common right upon the land demised to him) can be leased. The grantee of house-bote or hay-bote may let it to another (n). Ways. A right of way is demisable with the land to which it is legally appurtenant, and will pass without being mentioned, as will also other easements (o). Corrodies. ^ corrody is a right of sustenance, or to receive certain allotments of victual and provision for one's maintenance. In lieu of which, especially when due from ecclesiastical persons, a pension or sum of money was sometimes substituted. A corrody was chargeable on the person of the owner of the inheritance in respect thereof {p). If one had a corrody for life, he might let it to another, or to the grantor himself {q). (m) A different thing from com- A. 830; Morris v. Edgington, 3 mon of estovers, which is a right Taunt. 24 ; Davies v. Sear, L. B. 7 to cut wood upon the soil of a Eq. 427. See however Thompson stranger. v. Waterlow, 37 L. J. Ch. 495, L. (n) Shep. Touch. 222; Bac. R. 6 Eq. 36; Langley v. Ham- Abr. tit. Leases (A) ; Clark v. mond, 37 L. J. Ex. 118, L. R. 3 Cogge, Cro. Jao. 170, 190. Ex. 161. (o) Osborne v. Wise, 7 C. & (p) 2 Blao, Com. 40. P. 761 ; Clark v. Cogge, Cro. (5) Bac. Abr. tit. Leases (A); B. Jac. 170 ; Howton v. Fearsoii, 8 v. Nicholson, 12 East. 330 ; Peter T. B. 60 ; Sury v. Pigot, Popham, v. Kendal, '6 B. & C. 703 ; Beere 166 ; James v. Plant, 4 A. & E. v. Windebanke, Sid. 80. 749 ; Kooystra v. Lucas, 4 B. & Digitized by Microsoft® CH. III. J WHAT MAY BE LEASED. 39 Franchises (r) can be demised. Thus, a fair, or a Franchises. market, or a ferry, with the right of taking toll, can be demised ; so also can a franchise of forest, chase, park, warren, or fishery. Where, however, the fran- chise is a personal immunity, no lease can be granted (s). So tolls can be leased (t). Tolls. Leases of offices which touch the administration or Offices. execution of justice, or the receipt of revenue, are pro- hibited by the 5 & 6 Edw. VI., c. 16, and the 49 Geo. III., c. 126 (m). But such offices as merely re- quire common diligence, and may be executed by deputy without ill consequence to the public, may be leased for years (»). Also such offices as are merely ministerial in courts of justice (w). Dignities or honours cannot be leased (x). ()•) Franchise 'and liberty are synonymous terms, and their definition is a royal privilege, or branch of the crown's prerogative in the hands of a subject. Finch, L. 164. (s) Duke of Somerset -o. Fog- well, 5 B. & C. 875, 2 Blac. Com. 40 ; Bac. Abr. tit. Leases (A). See infra, Offices. (t) Fairtitle d.Mytton v. Gilbert, 2 T. R. 169, 3 Geo. IV. o. 126, 4 Geo. IV. c. 95, s. 51 ; Bell v. Nixon, 9 Bing. 393 ; Pearse v. Morrice, 5 B. & Ad. 396 ; Olroyd V. Crampton, 4 Bing. N. C. 24 ; Shepherd v. Hodman, 18 Q.B.316 ; Markham v. Stamford, 14 C.B. N. S. 376 ; Gunning on Tolls, 140. By the 3 Geo. IV. c. 126, s. 57, all con- tracts or agreements for the let- ting of turnpike tolls, signed by the trustees, or their clerk, and the lessee or farmer, are declared to be vaUd. See Markham v. Stamford, supra ; Stott v, Clegg, ISC.B.N.S. 619, 32L.J.C.P.102. (u) Eeynel's case, 9 Co. 95 a j Sutton's case, 6 Mod. 57. (v) Hopkins v. Prescott, 4 C. B. 578. See notes, Chitty's Sta- tutes, tit. OfBces, pp. 465-467 ; Rex V. Lenthal, 3 Mod. 145 : Bac. Abr. tit. Leases (A) ; e.(/., the offices of postmaster-general, king's printer, wardens of ports and havens, gun-founder, park- keeper, gauger, aulnager, garbler of spices, and registrar of policies of assurance in London. See Veale V. Priour, Hard. 352 ; Zouch v. Moore, 2 Eoll. R. 274, Hard. 354 ; Bac. Abr. tit. Offices (H) ; Com. Dig. Offices (B) 7. (w) For instance, surveyor of the green wax, sealer of writs and sub- poenas. Bro. Abr. tit. Leases, 40. (x) Bac. Abr. tit. Leases (A). Digitized by Microsoft® 40 CREATION OF TENANCY. [part I. Pensions. So pensions granted by the crown, wholly or in part, in respect of future services which the recipient may be called upon to render, cannot be leased (y). Rents and an- nuities. Rents and annuities (z) can be granted by way of lease (a). other incor- poreal heredi- taments. Whatever may be granted and parted with for ever may be leased (5). Thus rights of hunting, shooting, fishing, which are interests in the realty, may be leased. Mere easements in gross, however, it would seem, are not the subjects of demise (c). Thus in Hill v. Tup- per (d), an incorporated canal company by deed granted to the plaintiff the sole and exclusive right or liberty of putting or using pleasure-boats for hire on their canal. It was held that the grant did not create such an interest or estate in the plaintiff as to enable him to maintain an action in his own name against a per- son who disturbed his right of putting and using pleasure-boats for hire on the canal. So in Hand- cock V. Austen (e). A, the owner of certain lace- machines, paid 12s. a week to B for permission to place the machines in a room in B's factory, and for free ingress and egress to the room for himself and workmen for the purpose of working and in- specting the machines. B supplied the necessary steam power for working the machines, payment for iy) Wells V. Forster, 8 M. & W. 149 ; Lloyd v. Cheetham, 30 L. J. Ch. 640 ; Dent v. Dent, 36 L. J. P. & M. 61. (z) An annuity which is de- scendible to a man's heirs is an incorporeal hereditament. Co. Litt. 20 a. (a) Bac. Abr. tit. Leases ; Thomasj). Fredericks, 10 Q.B.775 ; Co. Litt. 144 b ; Com. Dig. tit. Annuity (A) 1, (E). (6) Bac. Abr. tit. Leases. (c) Hill V. Tupper, 32 L. J. Ex. 217 ; Wood V. Leadbetter, 13 M. & W. 838 ; Aolsroyd v. Smith, 19 L. J. C. P. 315 ; Stockport Water- works Company v. Potter, 3 H. & C. 300 ; Bird v. Great Eastern Railway Company, 19 C. B. N.S. 268 ; Hyde v. Graham, 1 H. & C. 593 ; Selby v. Greaves, 37 L. J. C. P. 251. (d) 32 L. J. Ex. 217. (e) 14 C. B. N.S. 429: 32 L. J. c; P. 252. Digitized by Microsoft® CH. III.j WHAT MAY BE LEASED. 41 wMcli was included in the above sum. It was held that as there was no demise to A of any part of the room, the relation of landlord and tenant was not created between him and B (/). Corporeal hereditaments in expectancy lie in grant, and are capable of being demised. 2. Things in Livery. Corporeal hereditaments which consist wholly of substantial and permanent objects, such as lands and houses, &c., were, if in possession before the 8 & 9 Vict., c. 106 (^), said to lie in livery. They are the subjects of demise; and incorporeal rights appurtenant thereto — for instance, rights of way or other easements — wiU pass by a demise of the land (ky. Parts of any dwelling-house or other tenement may Lodgings, be demised. Where parts of a dwelling-house are let, they are called lodgings or apartments (i) ; and if let furnished, the rent is deemed to issue out of the realty, and not partly out of the furniture (_; ). (/) See Selby v. Greaves, 37 R. 60, 66 ; Bac. Abr. tit. Ofaces L. J. C. P. 257 ; Wright v. Sta- (H). vert, 2 E. & E. 721, 29 L. J. (i) Monks v. Dykes, 4 M. & W. Q. B. 161 ; Carr v. Benson, L. R. 567. 3 Ch. Ap. 524. (;■) Newman r. Anderton, 2 B. ig) See supra, p. 36, n. (a). & P. New. R. 224 ; Spencer's ease, {h) Skull V. Glenister, 16 C. B. 5 Co. E. 16, 1 Smith L. C. 36 ; N.S. 81 ; Dobbyn v. Somers, 13 Cadogau v. Kennet, Cowp. 432 ; Ir. Com. L. Eep. N.S. 293, Q. B. ; Collins v. Harding, Cro. Eliz. 606, Osborne t>. Wise, 7 C. & P. 761 ; 13 Co. E. 57; Emott's case, Clark i>. Cogge, Cro. Jac. 170, Dyer, 212 b; Selby !). Greaves, 37 190, Staple v. Heydon, 6 Mod. L. J. C. P. 257. See infra, c. 1, 3 ; Howton u. Fearson, 8 T. 4, s. 6. Digitized by Microsoft® CHAPTER IV. HOW DEMISES ARE MADE. PAGE r PAGE payment of rent 117 payment of taxes 117 repairs ... 120 husbandry 124 42 insurance 124 46 not to under-let or assign 125 48 certain trades 127 48 trading with particular 53 persons, or within apar- 56 ticular radius 128 quiet enjoyment 130 56 renewal of leases 132 I (5) Implied — 135 68 payment of rent 137 68 repairs 137 80 husbandry 138 89 for title 139 98 94 quiet enjoyment 139 other implied covenants 141 98 8. Provisos ahd Condi- 101 tions — 141 107 not to assign 142 108 license 144 108 9. Powers oe Re-Entrt — 147 109 void and voidable leases 150 114 10. Leases under Powers 151 116 11. Leases by Estoppel ... 156 1. Distinction between Leases bt Deed, Leases BY Whiting hot under Seal, and Leases with- out Wbitinq — statute of frauds ... effect of noncompliance with presumed yearly tenancy . . . 2. Recitals 3. Words oe Demise — distinction between leases and agreements distinction between leases and licenses ... stamp 4. Parcels Demised — exceptions and reservations 5. Habendum — commencement of term duration of term ... tenancy at will option to determine 6. Reddendum — from what rent issues its nature and incidents . . . 7. Covenants — (a) Express — 1. Distinction between Leases by Deed, Leases by ^^Writing not undek Seal, and without Writing. We have seen that, as a general rule, a lease of any corporeal or incorporeal hereditament, can be created for life or lives, for years, or at will (a). But the dis- tinction which existed between things lying in livery (a) See supra, c. 3, p. 35. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 43 and things lying in grant, rendered a different mode of conveyance necessary in their alienation. The conveyance of things lying in grant (b), as Leases by remainders, reversions, and other incorporeal heredita- ments, which were incapable of actual possession or transfer, was effected by grant under seal (c). Thus a lease in writing, not under seal, of a several fishery in a public river has been held to be void (d). So a lease of tithes (e), or of a right of way, or of a right of passage for water (_/), or of a right to shoot over a manor, or fish in certain ponds (g), or the like, if not under seal, is invalid. Where, however, there is a demise of a corporeal hereditament to which an incor- poreal right is appurtenant, the incorporeal right passes with the conveyance of the corporeal thing demised (Ji). Thus a right of way appurtenant to the land will pass by a parol demise of the land (e) ; or a right to dig turf {j), or a market with a right to take tolls made appurtenant to the land by act of Parliament, may be demised without deed {k). Leases made by the sovereign, or by corporations, or by husband and wife, must be by deed (J). At common law leases of things lying in livery (5) See iupra, c. 3, s. 1. (h) Howton v. Fearson, 8 T. R. (c) Bird V. Higginson, 2 A. & 50, 56 ; Skull v. Glenister, 16 C. E. 696. Qusre, alease under seal B. K.S. 81, 32 L. J. 0. P. 185. should, since the passing of the (i) Ibid. Osborne v. Wise, 7 C. Statute of Frauds, be signed? & P. 761 ; Clark v. Cogge, Cro. Coooh V. Goodman, 2 Q. B. 696 ; Jac. 170-190 ; Staples. Heydon, 6 Shep. Touch. 66, n. 24; Aveline Mod. l,3,but see aBte,p. 38, n. (o). V. Whisson, 4 M. & Gr. 801. (J) Dobbyn v. Soniers, 13 Ir. (d) Duke of Somerset v. Frog- Com. L. Rep. N.S. 293, Q. B. well, 5 B. & C. 875. (h) Bridgland v. Shapter, 5 M. (e) Gardiner j>. Williamson, 2 B. &W.375. & Ad. 336. (I) Lane's case, 2 Rep. 17 ; (/) Hewlins v. Shippam; 5 B. & Patrick v. Balls, Garth. 390, S. C. C. 221. Lord Raymond, 136. See ante, (g) Bird v. Higginson, 2 A. & p. 39, n. (<), as to lease of turnpike E. 696. tolls. Digitized by Microsoft® 44 CEEATION OF TENANCY. [PART T. Leases by might have been made by writing not under seal, as Serseai. "^^^^ ^s by deed, and may still be made by writing without seal. Leases without Things lying in livery (m), that is, things capable of wnting, actual possession or transfer, might have been granted or transferred at common law, either for lives or years hj parol, without any instrument either in writing or under seal. A feoffment {n), or lease with livery of seisin, was formerly the usual mode of conveying free- hold interests in land in possession. The livery formed the essential part of the conveyance, and a deed or charter of feoffment, or lease, although under seal, was only deemed evidence of the grant, and was not essential to its validity (o). Neither a feoffment nor freehold lease was effectual at common law to pass an estate unless the grantor was in possession, so as to enable him to complete the grant or demise by livery, or, if a tenant for years was in possession (j»), unless he consented to the livery. Leases for years, however, are chattels real. They were originally for short terms, and conferred only a right to receive the profits of the land ; but the legal seisin of the freeholder was not transferred nor dis- turbed, as the lessee was considered only to hold possession for the benefit of the reversioner. So, if a tenant for years was deprived of the possession, no means were provided by which he could be restored to the occupation of the soil ; his only remedy was founded on the contract which constituted the lease ; and the (m) See c. 3, p. 41. It would appear from Doe. d. [n) See now 8 & 9 Vict. o. AVarner i;. Brown, 8 East. 167, and 106. Brown t: "Warner, li Ves. 158, (o) Co. Litt. 9 a, 49 a, 169 a; that leases for life must have been Sharp's case, 6 Rep. 261, S. C. ; created by deed. Sharp u. Sharp, Cro. Eliz. 482. (p) 3 Dyer, 363 a, pi. 22. Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 45 words of demise were construed as a covenant entitling the tenant to recover damages as a recompense for the loss of possession. But in the reign of Henry VIII. (q) a tenant for years was enabled to falsify a common recovery, from which time leases for long terms of years were granted, and were considered permanent interests ; but the distinction between chattels real and freehold estates still continues a marked feature in the laws relating to real property (r). A lease for years, therefore, was considered simply as a contract or agreement between the lessor and the lessee for the possession (s) and profits of the lands for a determinate period, on the one side, and a recompense by rent or other consideration, on the other {£). It follows that leases for years of things lying in livery, being mere chattel interests arising from the contracts between the parties, may commence in presenti or infuturo; but until entry the lessee has no estate, though upon the making of the lease he im- mediately acquires an interesse termini, which may be granted away as a right, or extinguished by a release, but cannot be conveyed as an estate (m). (q) 21 Hen. VIII. o. 15. 118; Co.Litt.46b,270a; Litchfield {r) Bac. Abr. tit. Leases (A) ; v. Ready, 5 Ex. 939. An interesse Co. Litt. 384 n (332), by Butler. termini is that interest which the (s) By the 21 Henry VIII. c. lessee has in the term, whether 15, atenant canrecoverpossession. commencing in presenti or in Bac. Abr. tit. Leases (A). futwo, before he makes an actual (t) Bac. Abr. tit. Leases (A K). entry into the lands. Where (u) Com. Dig. Estates by Grant indeed the term is created under (G) 14 ; 1 W. Saund. 250 f (1) ; the Statute of Uses, there the Williams v. Bosanquet, 1 B. & B. statute transfers the possession to 238 ; Ryani). Clarke, 14 Q. B. 65 j the use, and no entryis necessary ; Harrison v. Blackburn, 17 C. B. consequently in such a case an N.S. 678, 34 L. J. C. P. 109 ; Doe interesse termini cannot properly d. Rawlings ?!. Walker, 5 B. & 0. speaking exist. Shep. Touch. 267 e Digitized by Microsoft® 46 CKEATION OF TENANCY. [PART T. Statute of To remedy the evils arising from verbal demises, the Statute of Frauds was passed (v). The object of the statute was to do away with the old method of transferring interests in land. By sect. 1 of this statute it was enacted, that "all leases, estates, interests of freehold, or terms of years, or any uncertain interests, of, in, to, or out of, any mes- suages, manors, lands, tenements, or hereditaments, made or created by livery of 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 authorised by writing, shall have the force and eifect of leases or estates at will only, and shall not either in law or equity be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates to the contrary notwithstanding." " Except (w), nevertheless, all leases not exceed- ing the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two third parts at the least of the full improved value of the thing de- mised." And the 4th section enacts, " That no action shall be brought whereby to charge the defendant upon any contract or sale of lands, tenements, and hereditaments, or any interest in or concerning them, unless the agreement {x) upon which such action (v) 29 Car. II. u. 3. within thia section, and must (lo) Sect. 2. therefore be in writing. Edge v. (x) A mere agreement to let Strafford, 1 C. & J. 391 ; Inman lodgings (see ante, p. 41), not ti. Stamp, 1 Stark. R. 12. And the amounting to an actual demise, is furniture agreed to be let there- a contract for an interest in land with forms an inseparable part Digitized by Microsoft® CH. IV.J HOW DEMISES AEE MADE. 47 shall be brought, or some note or memorandum thereof, shall be in writing, signed by the party to be charged therewith, or some other person thereunto lawfully authorised." The 8 & 9 Vict., c. 106, s. 3, enacts, that " a lease required by law to be in writing of any tenements or hereditaments, shall be void at law (y), unless made by deed." Therefore, by the conjoint operation of the Statute of Frauds and the 8 & 9 Vict., c. 106, s. 3, all leases of any estate in any corporeal hereditament must be put in writing, and signed by the parties, or their agents authorised in writing ; and such leases are void at law, unless they are made by deed. But there must be excepted leases of any estate in any corporeal hereditament for three years, or for any less term, which can still be made by word of mouth ; provided such leases comply with the con- ditions mentioned in the 2nd section of the Statute of Frauds. It must be borne in mind that leases, or agree- ments for leases, for three years, or for any less term, satisfying the conditions named in the 2nd section, fall within the provisions of the 4th section of the Statute of Frauds. Therefore whatever remedies may attach to them in their character as leases, no action can be brought upon such contracts unless there is some note in writing, signed by the party charged, or his agent, who need not be authorised in writing. of the contract. Mechleu v. E. & B. 721, 29 L. J. Q. B. Wallace, 7 A. & E. 49 ; Vaughan 161. V. Hancock, 3 C. B. 766. {y) See infra, a. 2, Difference See also Wright v. Stavert, 2 between Leases and Agreements. Digitized by Microsoft® 48 CREATION OF TENANCY. [part I. Thus no action will lie on a verbal lease against the lessee for not taking possession (z), nor against the lessor for not giving up possession on the day agreed upon for the commencement of the term (a). Effect of non- compliance with the Statute of Frauds. By the terms of the Statute of Frauds, a lease (not complying with the conditions therein named) of any estate in any corporeal hereditament, for any term, is declared to have the force and effect of an estate at will only (b). Presumed yearly ten- ancy. This estate at will (c) may, like any other estate at will, he changed into a tenancy from year to year, by payment of rent after entry, or other circumstances indicative of an intention to create such yearly ten- ancy (d). Thus in Knight v. Bennett (e), which was an action of replevin, plaintiff entered a farm under an oral agreement for a lease for ten years, the rent (the amount not being mentioned) was to be paid half yearly ; no lease was ever executed, but plaintiff occupied and paid a certain rent for two years ; it was held that the lessor might distrain. Gaselee, J., said, (z) Inman v. Stamp, 1 Stark. 12 ; Edge v. Strafford, 1 C. & J. 391. (a) Drury v. Macnamara, 5 E. & B. 612; Jinks v. Edwards, U Ex. 775. (S) Sect. 1. (c) See infra, s. 4, Duration of Term as to Estate at Will. (d) Doe d. Eigge v. Bell, 5 T. B. 471 ; Clayton v. Blakey, 8 T. R. 3 ; Berry «. Lindley, 3 M. & Gr. 498 ; Regnart v. Porter, 7 Biug. 453 ; Braithwaite v. Hitch- cock, 10 M. &; W. 494; Doe d. Thomson v. Amey, 12 A. & E. 476 ; Arden v. Sullivan, 14 Q. B. 832 ; Doe d. Pritchett v. Mitchell, 1 B. & B. 11 ; Doe d, Pennington V. Tauiere, 12 Q. B. 998 ; Hill «. South Staffordshire Ry. Co. 11 Jurist, N.S. 192 L. J.; Crowley V. Vitty, 7 Ex. 319 ; 21 L. J. Ex. 136 ; Geeokie v. Monk, 1 C. & K. 307 ; Doe d. Monk v. Geeckie, ib. 307, 5 Q. B. 841; Clarke v. Moore, 1 Jon. & Lat. 723 ; Bur- rows V. Gradin, 1 D. &. L. 213 ; Donellan v. Read, 3 B. & Ad. 889 ; Foquet v. Moor, 1 Ex. 370 ; Furley v. Bristol and Exeter Ry. Co. 7 Ex. 415 ; Jones v. Shears, 4 A. & E. 832 ; Richardson v. Gif- ford, 1 A. & E. 62 ; Beale v. Sanders, 3 Bing. N. C. 850. See cases cited in notes 2 Smith L. C. 98. (c) 3 Bing. 361. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE., 49 " The agreement for a lease for ten years not having been reduced into writing, was invalid ; but the plain- tiff having entered and occupied for more than a year under the terms of that agreement, it is clear, accord- ing to the cases, that he was tenant from year to year." "^ Payment of rent is only one of the things which ^ afford evidence of a yearly tenancy. For if a party enter and promise to pay a rent certain, or if he settle ] it in account, a tenancy from year to year may be pre- ^ sumed (/). Thus in Cox v. Bent (ff), which was an ^ action of replevin, plaintiff, who had, under an agree- ment for a lease, admitted a charge of half a year's J rent in an account between himself and his landlord, was thereby held to have become tenant from year to ^ year. But where payment of rent, unexplained, would ordinarily imply a tenancy from year to year, the cir- cumstances under which such payment was made may be proved for the purpose of repelling such an im- plication (/t). In order, however, that a tenancy at will should inure as a tenancy from year to year, it must be proved that the parties agreed to vary it by a new contract for a tenancy from year to year (i). (/)Eegnarti;. Porter,7Bing.451. (g) 5 Bing. 185. (A) Walker v. Gode, 30 L. J. Ex.172; Doe (i. Lord p. Crago, 6 C. B. 90 ; Oakley v. Monok, 3 H. & C. 706, 34 L. J. Ex. 187 ; The Marquis of Camden v. Battenbury, 5 C. B. N.S. 808 ; Doe d. Burne 'v. Prideaux, 10 East. 158. (i) Doidge v. Bowers, 2 M. & W. 365; Doe d. Hall v. Wood, 14 M. & W. 687 ; Doe d. Lord v. Crago, 6 C. B. 98 ; Bishop v. Ho- ward, 2 B. & C. 100 ; Doe d. Basto r.Cox, 11 Q. B. 122, 17 L. J. Q. B, 3 ; Doe d. Dixie v. Davies, 7 Ex 89 ; Piuhorn ). Thus in Doe d. (m) Doe d. Newby v. Jackson, (o) 10 M. & W. 497. 1 B. & C. 448 ; Kirtland v. Poun- {p) Doe d. Rigge v. Bell, 5 T. sett, 2 Taunt. 145 ; Hearne v. Tom- R. 471 ; Beale v. Sanders, 3 Bing. lind, Peake, 192 ; Hope v. Booth, N. C. 850 ; Richardson v. Gifford, 1 B. & Ad. 498. See infra, Dura- 1 A. & E. 52 ; Doe d. Thompson tion of Term, p. 98. v. Amey, 12 A. & E. 476 ; Doe d. (n) Richardson v. Langridge, 4 Oldershaw v. Breach, 6 Esp. 106 ; Taunt. 128; Braithwaite v. Hitch- Thomas v. Packer, 1 H. & N. 669 ; cock, 10 M. & W. 497 ; Doe d. Pistor v. Cater, 9 M. & "W. 315 ; Hall V. Wood, 14 M. & W. 682. Chapman v. Towner, 6 M. & W. See the judgment of Williams, J. , 100; Doe d. Tilt v. Stratton, 4 in The Marquis of Camden v. Bat- Bing. 446 ; Berry v. Lindley, 3 tenbury, 5 C. B. N.S. 812. M. & Gr. 511; Doe d. Daveuish Digitized by Microsoft® 52 ! CEEATION OF TENANCY. [PART I- Rigge V. Bell {q), where the defendant entered on a farm, and paid rent under a lease for seven years, not in writing, and one of the terms of the lease was that he was to quit at Candlemas, it was held that if the lessor chose to determine the tenancy before the ex- piration of the seven years, he could only put an end to it at Candlemas. So again in Richardson v. G-ifford (r), where the defendant occupied a house, &c., under an agreement void by the Statute of Frauds, and by his agreement promised to keep the premises in repair during his tenancy, he was held bound by his promise to repair. So a stipulation *' to keep open the shop, and use best endeavours to promote the trade of it during the tenancy," is consistent with a tenancy from year to year (s). So is a stipulation that the tenant shall be paid for tillages on the expiration of his tenancy (t). A proviso for re-entry, for non-payment of rent, or for non-performance of covenants, has been held con- sistent with an implied yearly tenancy (u). But a stipulation for two years' notice to quit is inconsistent with a tenancy from year to year (v). So it would seem is a covenant to build or a stipulation to do more than tenantable repairs (w). Where a person has entered under a lease void by V. Moffat, 15 Q. B. 257 ; Lee v. (q) 5 T. R. 471. Smith, 9 Ex. 662. , See also (r) 1 A. & E. 52. Doe rf. Pennington «. Taniere, 12 (s) Sanders ?;. Karnell, 1 F & Q. B. 998 ; Oakley v. Monck, L. F. 356. R. 1 Ex. Ch. 159. But a mere (*) Brocklington r. Saunders, 1 3 assignment by a lessee will not W. R. 46, Q. B. render the assignee liable to the (u) Thomas v. Parker, 1 H. & N. stipulations in the lease without 669. some act, such as payment of (v) Tooker v. Smith, 1 H. & N. rent, to raise the presumption of a 732. new tenancy. Elliott v. Johnson, (w) Bowes v. Croll 6 E & B L. R. 2 Q. B. 120. 264. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 53 the Statute of Frauds, and has become, by implica- tion, tenant from year to year, such tenancy may be determined by the usual notice to quit at the end of the first or any subsequent year thereof; and the tenancy will cease on the expiration of the term mentioned in the instrument, and the premises may then be recovered without any notice or demand (x). Thus where a tenant entered under an agreement for a lease for seven years, which was never executed, it was held that he was not entitled to notice to quit at the end of the seven years (y). 2. Recitals. Recitals of former instruments, or of some ante- Recitals. cedent circumstances which have led to the lease in question, are convenient for the sake of clearness and elucidation. They also explain the intention and meaning of the parties (z). As a lease by deed operates like any other deed as an estoppel, parties are generally prevented from afterwards disputing the facts therein recited (a). The question how far parties are bound by recitals in deeds has been much dis- cussed. The doctrine of Lord Coke, that " a recital {x) Doe d. Tilt v. StraUon, 4 man v. Taylor, 2 A. & E. 278 ; Bing. 446 ; Doe d. Bromfield v. Hills v. Laming, 9 Exch. 256 ; Smith, 6 East. 530. R. v. Stamper, 1 Q. B. 123 ; HiU (y) Doe d. Tilt v. Stratton,S!Jj5)'a. v. Manchester and Salford Water- See Berryu. Lindley, 3 M. & G. 498. works Co. 2 B. & Ad. 544 ; Par- (z) See Cruise's Digest, title geter ». Harris, 7 Q.B. 708; Bayley xxxii. Deed, u. xxi. s. 22 ; see v. Bradley, 5 C. B. 396 ; Young Einger v. Cann, 3 M. & W. 343. v. Raincook, 7 C. B. 310 ; Hor- (a) As to estoppel by recital, see ton v. Westminster Improvement Salter v. Kidgley, 1 Show. 58 ; Commissioners, 7 Ex. 780 ; Huu- Com. Dig. Estoppel (A) 2 ; Veale gerford i). Beecher, 5 Ir. Eq. R. V. Warner, 1 Saund. Wills, 325 a, N.S.417 ; Pilbrow v. Atmospheric a. (c) ; the notes to the Duchess Eailway Co. 5 C. B. 440 ; Wiles of Kingston's case, 2 Smith, L. v. Woodward, 5 Ex. 657 ; South- C. 666 (5th edition) ; Lainson v. Eastern Eailway Co. v. Wharton, Tremere, 1 A. &. E. 762 ; Bow- 31 L. J. Ex, 615. Digitized by Microsoft® 54 CREATION OF TENANCY. [PART I. doth not conclude because it is no. direct affirma- tion" {b), has been expressly OYcrruled. The law on this subject has been thus stated by Parke, B., in Carpenter v. Buller (c) : — " If a distinct statement of a particular fact is made in the recital of the bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true that, as between the parties to that instrument and in an action upon it, it is not competent for the party bound to deny the recital, notwithstanding what Lord Coke says on the matter of recital in Coke Littleton, 352 b ; and a recital in 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 (d), where, in a bond to secure the payment of rent under a lease, 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 condi- tion to a bond, as that the obligor and his wife should appear, the obligor cannot plead that he appeared himself, and deny that he is married, in an action on the bond(e). 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 (6) Co. Litt. 352 b. (/) See the South - Eastern (c) 8 M. & W. 212. Railway Co. v. Wharton, 31 L. J. (d) 1 A. & E. 792. Ex. 515, 5 H. & N. 620. («) 1 Roll. Abr. 873, c. 25. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 55 " admitted, though the recitals would certainly be evi- dence. 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 evidence of these facts. Still less would matter alleged in the in- strument 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 other proceedings between them." Thus in Bowman v. Taylor (^) a deed recited that the plaintiff had invented certain improvements for which he had obtained a patent, and the defendant, in con- sideration of a license to use it, entered into a covenant, for breach of which he sued; the defendant, by his plea, traversed the invention of the plaintiff, and such plea was held bad on demurrer ; the passage from Coke Littleton above quoted (k) was cited. However, the Court was unanimous in giving effect to the estoppel. " The law of estoppel," said Taunton, J., "is not so unjust or absurd as it has been too much the custom to represent. The principle is, that where a" man has entered into a solemn engagement by and under his hand and seal as to certain facts, he shall not be per- mitted to deny any matter to which he has so assented. The question here is whether this be a matter so assented to by the defendant under his hand and seal, that he shall not be permitted to deny it in pleading ? It is said that the allegation in the deed is made by way of recital ; but I do not see that a statement such {g) 2 A. &E. 278. (A) 352 b.. Digitized by Microsoft® 56 CREATION OF TENANCY. [PART I. as this is the less positive hecause it is introduced by a ' whereas.' " It would therefore appear that, in order to make a recital operate as an estoppel, there must be — (1.) A distinct statement (i) of some material (j) particu- lar {k) fact; (2.) A contract made with reference to such statement. But if it is the recital by one party of a fact within his knowledge, on the faith of which the other party contracted, the latter may perhaps not be estopped. Thus in Stronghill v. Buck (I), Paterson, J. , said, in delivering the judgment of the Court, " When a recital is intended to be a statement which all parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But when it is intended to be the statement of one party only, the estoppel is confined to that party, and the intention is to be gathered from construing the instrument. All the cases were brought forward and considered in Young t. Raincock (m), and we have no doubt that the result of them is as above stated." As to when a recital in a deed amounts to a cove- nant, see tit. Covenant (?z). 3. Words of Demise. Distinction be- The usual words of demise are — " demise, lease, andTgree-^^ and to farm let." But any other words which are ments. sufficient to explain the intent of the parties, that the (i) See Kepp v. Wiggett, 10 C. Cro. Eliz. 762. See judgment of B. 35. Lord Deuman in Lainson v. Tre- (j) Carpenter v. Buller, supra. mere, supra ; Doe d. Jeffreys v. (k) See Eolle's Abrg. Estoppel Bucknell, 2 B. & Ad. 278. (P), pi. I & 7 ; Com. Dig. Estoppel {I) 14 Q. B. 787. (A) 2 ; Salter v. Kidley, 1 Show. (m) 7 C. B. 310. 59 ; Rainsford v. Smith, Dyer, («) Post, s. 7. 196 a, note; Stroud v. Willis, Digitized by Microsoft® CH. IV. J HOW DEMISES ABB MADE. 57 one shall divest himself of the exclusive (o) posses- sion, and the other come into it for a determinate time — whether such words run in the form of a license (p), covenant (q), or agreement (r) — are of themselves sufficient, and will, in construction of law, amount to a lease for years, as effectually as if the most proper and pertinent words had been used for the purpose (s). Thus a license to enjoy or inhabit a house has been deemed a demise of it (t). So if A, by articles, covenant with B that he shall have, hold, or enjoy certain lands for a certain time, this amounts to a lease ; but if A covenant with B that C shall have, hold, or enjoy them, it is otherwise (m). So where the owner of the fee agreed to convey the premises to B for a certain number of years, at a certain rent, and the instrument contained the usual covenants for payment of rent, &c., this was holden to be a lease (»). So where A agreed to let, &c., it was holden to be a present demise {to). So where B agreed " to pay the sum of £140 per annum, in quar- terly payments, for the house and premises at, &c.. (o) See R. i>. Morrish, 32 L. J. M. C. 245 ; Taylor v. Caldwell, 32 L. J. Q. B. 164, 3 B. & S. 826 ; Hand- cock V. Austin, 32 L. J. C. P. 252, 14 C. B. N.S. 429. (p) Hall v. Seabright, 1 Sid. 428, 2 Keb. 561 ; Jepson v. Jack- son, 2 Lev. 194; Trevor v. Ro- berts, Hard. 366 ; R. w. Winter, 2 Salk. 388 ; Watkins v. Overseers of Milton, L. R. 3 Q. B. 350, 37 L. J. M. C. 73 ; Grant v. Oxford Local Board, L. R. 4 Q. B. 9 ; Carr V. Benson, L. E. 3 Gh. App. 524. For the distinction between leases and licenses, see post, p. 68. (j) Drake v. Monday, W.Jones, 231, Cro. Car. 207; Right d. Green o. Proctor, 4 Burr. 2208 ; Right d. Bassett v. Thomas, 3 Burr. 1441 ; Whitlock v. Horton, Cro Jac. 91 ; Jones d. Trimleston V. Inman, Irish T. R. 433 ; Doe d. Pritchard v. Dodd, 5 B. & Ad. 689 ; Richards v. Sely, 2 Mod. 79 ; Havergill v. Hare, 3 Bulst. 252. (r) See infra. (s) Bao. Abr. tit. Lease (K). See Wilkinson v. Hall, 3 Bing. N. C. 632 ; Neale v. Mackenzie, 1 M. & W. 759. («) Bac. Abr. tit. Lease (K) ; 1 Leon. 129. («)Bac. Abr. tit. Lease (K); Drake V. Monday, Cro. Car. 207 ; Tisdale V. Essex, Hob. 34; Doe d. Jackson V. Ashburner, 5 T. R. 163. {v) Alderman v. Neat, 4 M. & W. 704. (m) Staniforth v. Fox, 7 Bing. 590. Digitized by Microsoft® 58 CKEATION OF TENANCY. [pART I. for the term of seven, fourteen, or twenty-one years, at his option, at the end of every seven years, the rent to commence on the 1st January 1827," this was held to be a lease {x). A stipulation that a lease shall be afterwards drawn up between the parties, does not of itself indicate an intention that the in- strument should not operate as a present demise, but merely that a more formal instrument should there- after be executed by them, to effectuate the same thing, as being more satisfactory than the present instrument. Therefore, where by articles between A and B, it was covenanted and agreed that A " doth leV certain lands to B, for five years from Michaelmas then next, at a certain rent ; and it was also covenanted that a lease should be made and sealed, according to the effect of these articles, before the feast of All Saints ; this was holden to amount to an immediate lease, by reason of the words " doth let," in the present tense, and that the covenant for a future lease was only for further assurance ; and the rather, in this case, as the time at which the future lease was to be executed was after the commencement of the term (y). So where A and B entered into an agreement with C, whereby they agreed " with all convenient speed to grant to him a lease of, and they did thereby set and let to him," certain pre- mises, for a certain term, at a certain rent, the lease to contain certain covenants, in stipulating for one of which the words "this demise " occurred, the Court held (.r) Wright o. Trevezant, M. & words, " I will you shall have a M. 231, 3 C. & P. 441. lease for twenty-one years of my (y) Harrington v. Wise. Cro. lands in D, paying ten shillings Eliz. 486, Noy. 57. See Barry v. yearly rent : malce a Nugent, cited in Doe o. Ash- writing, and I will seal it." This burner, 5 T. R. 165; Doe v. was held to be a valid lease. Groves, 15 East. 244 ; Goodtitle Moor. pi. 31; 3 Edw. VI. S. C. V. Way, 1 T. R. 735. The earliest cited as Maldon's case, Cro. Eliz. case upon this point arose before 33. the Statute of Frauds, upon these Digitized by Microsoft® CH. IV. J HOW DEMISES AKE MADE. 59 this to be a good lease in prcesenti, with an agreement to execute a more formal and perfect lease in futuro ; the operative words of demise, " set and let," being in the present tense, made it a demise; and the word " demise," in the stipulation as to the covenants, showed that the parties intended it to be so {z). So where, by an instrument in writing, A agreed to let, and B agreed to take, a certain piece of land, for a certain term, at a certain rent ; and in consideration of a lease to be granted for the said term, B agreed to lay out £2000, within four years, in building certain houses upon it, and A agreed to grant a lease, or leases, as soon as the houses should be covered in, and B agreed to take such leases, and to execute counter- parts, the agreement to be considered binding till one fully prepared could be produced; the Court held this to be a lease (a). Lord EUenborough, C.J., in giving judgment, said — " The rule to be collected from all the cases is, that the intention of the parties, as declared by the words of the instrument, must govern the construction ; and here their intention appears to have been, that the tenant, who was to expend so much capital upon the premises within the first four years of the term, should have a present legal interest in the term, which was to be binding upon both parties ; though when a certain progress should be made in the buildings, a more formal lease, or leases, in which, perhaps, the premises might be more particularly described, for the convenience of underletting or assigning, might be executed." So where A agreed to grant, seal, and execute to B " a legal and effec- tual lease " of certain premises, for a certain term, (2) Baxter 11. Brown, 2 W. Bl. ful, 5 B. & Ad. 1042 ; Alderman 973. V. Neat, 4 M. & W. 704 ; Chap- (a) Poole V. Bentley, 12 East. man v. Bluok, 4 Bing. N. C. 168. See also "Warman V. Faith- 187. Digitized by Microsoft® 60 CREATION OF TENANCY. [PART I. from a day then past, at a certain rent, and to contain certain covenants, and, in the meantime, until such lease should be executed, B was to pay rent and to hold the premises subject to the covenants above mentioned ; this was holden to be an actual demise, and not merely an agreement. No doubt the parties intended that a more formal contract should be exe- cuted ; but as the tenant was to hold, in the meantime, on certain terms there set out, this was deemed to be a demise of the premises on those terms (b). By a " memorandum of agreement^'' between A and B, after reciting that A and had abandoned the annexed contract for taking and letting certain land (and which contract was in effect a lease), it was agreed that A should let and B should take the same lands upon the conditions contained in the annexed contract, " the said rent to be paid by quarterly pay- ments, and to be in amount £220; and we further bind ourselves, each to the other, to execute a similar agreement to the one recited and referred to." This agreement was stamped as a lease, but the one annexed to it had no stamp. The Court held that the stamped agreement incorporated the unstamped one, and that the two together might be given in evidence as a lease (c). So where the instrument was as follows : — " September 21, 1829. — K. agrees to let and P. to take a house in its unfinished state, for the term of sixty years, at the rent of £525, payable quarterly, the first payment for the half-quarter at Christmas next, — P. to insure the premises, and to have the benefit of an insurance lately paid, — a lease and counterpart to be prepared at the expense of P., and to contain all the clauses, covenants, and agreements which K. entered (6) Pinero v. Judson, 6 Bing. (c) Pearce v. Cheslyn, 4 A. & 206 ; Wilson v. Chisholm, 4 C. & E. 225. P. 474. Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 61 into in the lease granted to him ; " this was held to be an actual lease, and not a mere agreement for a lease (d), for several reasons : — First, the stipulation for a future lease was not executory merely, because the terms of it were ascertained, for it was to contain all the clauses in the lease granted to K. Secondly, although no precise day was fixed for the commence- ment of the rent, yet the tenant was to do the repairs, and, at Christmas following, to pay half a quarter's rent. Thirdly, the express words were, " agrees to let, and agrees to take ; " and upon these the party was put into immediate possession. Fourthly, the tenant was to put the premises into repair ; and, lastly, he was to insure (e). But it is also laid down in Bacon's Abridgment (_/), that " if the most proper and authentic words or form of words, whereby to describe and pass a present lease for years, are made use of, yet if upon the whole deed there appears no such intent, but that they are only preparatory, and relate to a future lease to be made, the law will rather do violence to the words than break through the intent of the pai'ties." Therefore, if the instrument contain an express stipulation that it shall not be deemed or taken to be a lease or actual demise, it is clear that it must be deemed an agreement merely, and not a lease (ff). Thus where a party agreed that, in case he should become entitled to certain copyhold premises on the death of another, he would immedi- ately demise them to J. S., this was held to be an agreement only, and not a lease {k). So where an instrument contained a stipulation, that out of the {d) Doe V. Ries, 8 Bing. 178 (/) Tit. Leases (K). S. P. ; Hancock v. Caffyn, 8 Bing. (g) Perring v. Brook, 7 C. & 358. P. 360, 1 Moo & R. 510. (e) See the judgment of Tin- (h) Doe v. Clare, 7 T. E. 739. dal, C.J., p. 181. Digitized by Microsoft® 62 CREATION OF TENANCY. [pART I. rent mentioned a proportionate abatement should be made in respect of certain excepted premises, it was held that the parties intended to execute an agree- ment only ; for until the rent should be apportioned, the lessor could not distrain for it (i). Thus in Doe d. Jackson v. Ashburner (j), where the words were, " Articles of agreement between S. and J. , entered into in regard to his fnlling-mills, &c. . . . that the said mills, &c., ... he shall enjoy, and I engage to give him a lease in, for the term of thirty-one years, from Whitsuntide 1784, at the clear yearly rent of £110;" the instrument was held to be only an agreement for a lease. Lord Kenyon in his judgment said, " Here the words are, ' he shall enjoy and I engage to give him a lease,' &c. And the single question is, what was the intention of the parties using those expressions ? Was it that this agreement should confer the legal interest ? or, was it not in their contemplation that there should be another instrument to give that legal interest ? The latter words clearly show that it was the intention of the parties that there should be some further assurance. It was in fieri at that time. . . . All the cases cited may be answered by the ob- servation that there were either express words of pre- sent demise, or equivocal words, accompanied with others, to show the intention of the parties that there should not be a future lease ; but in this case, where the context, in which I find the words ' shall enjoy,' imports that the parties do not mean that they should operate as a present demise, I think we should decide contrary to the intention of the parties if we were to determine that they should have that effect." So where there were words of present demise, but the amount of rent, the periods of payment, and other (j) Morgan r. Bissell, 3 Taunt. 65. (j) 5 T. R. 1G3, Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 63 terms of the holding were not mentioned, except as they were to be contained in a lease, which was to be prepared ; this was held to be an agreement only, and not a lease (/«). So an agreement " to let," with a purchasing clause, the tenant to enter any time on or before February 11, 1820, was held to be an agreement, and not a lease (/). Bay ley, J. , in giv- ing judgment, said (m) — " In the case of Morgan v. Bissell (n), the rule is laid down thus, that although there are words of present demise, yet if we can col- lect on the face of the instrument the intent of the parties to give a future lease, it shall be considered an agreement only." So where by the instrument the rent was to be fixed by valuation, and' the tenant was to find sm'eties for the payment of it, the Court held that it was not a lease, but an agreement only (p). So where a person proposed by letter to take a lease ot a mine at a certain royalty and rent, the term to be about forty years from the 24th June then next, to which the other party by letter answered that he agreed to the terms, and should be happy to grant a lease conformable thereto ; these letters were held to constitute an agreement only, and not a lease, because the matter was altogether in futuro, and much re- mained to be done {p). So where A by an instrument in writing agreed to grant at the time thereinafter mentioned, a lease of certain premises to B for fifty- nine years from the 28th March then last past, at a cer- tain rent, payable quarterly, and B agreed to accept and take the lease and execute a counterpart, and in a subsequent part of the instrument it was stipulated (k) Chapman v. Towner, 6 M. (n) 3 Taunt, p. 71, per Mans- & W. 100 ; Clayton v. Burten- field, C.J. shaw, 5 B. & C. 41. (o) John v. Jenkins, 1 C. & M. (I) Dunk V. Hunter, 5 B. & A. 227. 322. ip) Jones v. Eeynolds, 1 Q. B. (m) Ibid. 326. 506, 1 Gale k D. 62. Digitized by Microsoft® 64 CREATION OF TENANCY. [PAET I. that the lease thereby agreed to he granted should be granted immediately after A should obtain a lease of the premises from C, to which he was entitled under a certain agreement; the Court held that this could not be deemed a lease, as the parties knew that there was no power to grant one (§■). So where the instru- ment stated that the party was " contented to demise," &c., it was held that the word " contented" imported merely approbation of something to be done thereafter, and that the instrument therefore was not to be deemed a lease, but an agreement only (r). In Brashier v. Jackson (s), where a party agreed to grant a lease of premises for a certain term, at a certain rent, to be entered upon immediately, such lease to contain cer- tain covenants, and all other usual and reasonable covenants ; this was held to be an agreement, and not a lease ; for what were reasonable covenants might be matter of dispute between the parties {t). So where by a written instrument A agreed to grant to B a lease of certain premises for seven years, at a certain rent, the lease to contain certain covenants, but at the end of the instrument there was a memorandum that B should have the option of having the lease for fourteen years ; this was held to be au agreement, and not a lease (m). So where A agreed to grant B a lease of certain premises, for a certain term from the 25th of December then next, at a certain rent, the covenants to be the same as in a former lease of the same premises, and it was stipulated that until such lease should be granted, it should be lawful for A to distrain for the rent ; this was held to be an agreement only, (q) Hay ward v. Haswell, 6 Ad. Taunt. 65 ; Qoodtitle v. Way, 1 & E. 265. T. R. 735. See also Alderman v. (r) Pleazance v. Higham, 2 Neat, 4 M. &. W. 704 ; Baxter Mod. 81. V. Brown, 2 W. Bl. 973. (s) 6 M. & W. 549. («) Rawson -o. Eike, 7 A. & E. (() See Morgan v. Bissell, 3 451. Digitized by Microsoft® CH. IV.J HOW DEMISES ARE MADE. 65 for if the parties intended that it should operate as a lease, the latter stipulation as to the power of distress would have been unnecessary (v). So where A agreed that he would grant B a lease of certain premises for fourteen years from the 25th December then last past, at £40 a year ; but if B should pay him £40 before the end of the first quarter, then the rent should be reduced to £35 ; this was held not to be a lease (w). The result, therefore, to be collected from the pre- ceding decisions is, that an instrument containing words of present demise shall operate as a lease for years ; a demise is thereby created, and a mere addi- tional stipulation for the future execution of a formal lease is considered only in the nature of an agreement for further assurance. The intention of the parties is to be collected from the words of the instrument in the first place ; but if the terms of the instrument be ambiguous, the nature of the estate and the acts of the parties may be resorted to as a guide. The interpretation of instruments of this nature has, however, been affected by the 8 & 9 Vict., c. 106, s. 3, which enacts that a lease required by law (x), to be in writing, of any tenements and hereditaments made after 1st October 1845, is "void at law" unless it be by deed. But although it is void as a lease, yet it may operate as an agreement for a lease. In construing written instruments, purporting to demise corporeal hereditaments for a term required by law to be in writing under seal, the Courts have usually considered that such instruments (although in (v) Bioknell v. Hood, 5 M. & deemed a lease, for nothing is W. 104. thereby demised. Brewer v. Hill, (w) Hegan v. Johnson, 2 Taunt. 2 Anst. 413. 148. An agreement for a compo- (x) See supra, p. 47. sition in lieu of tithes cannot be E Digitized by Microsoft® CREATION OF TENANCY, [part I. terms leases, and therefore void at law) may operate as agreements (y) for leases (z). At any rate, if a person is let into possession under an instrument void as a lease, and pays rent, that instrument may be used as evidence of the terms of the holding and the amount of the rent (a). So in EoUason v. Leon (b), Bramwell, B., said, " I am of opinion that the plaintiff is entitled to the judgment of the Court. I confess I have always thought that the case of Stratton v. Pettit (c) was not rightly decided, and I should like to see it reviewed in a Court of Error. I think that case was wrong, on the ground that the judgment was based on reasoning inapplicable to the case of instruments made since the statute 8 & 9 Vict., c. 106. Before that statute parties might equally as well be supposed to contemplate a present actual demise as a prospective demise ; but since the statute, when they cannot let for a period exceeding three years, except by deed, they may very reasonably be supposed, when they do not agree by (y) It must be an agreement in conformity with the 4th section of the Statute of Frauds. (s) Bond V. Rosling, 30 L. J. Q. B. 227, 1 B. & S. 371 ; RoUason ■V. Leon, 31 L. J. Ex. 96 ; 7 H. & N. 73 ; Tidey v. Mollett, 33 L. J. C. P. 235 ; 16 C, B. N.S. 298, overruling Stratton v. Pettit, 24 L. J. C. P. 182 ; 16 C. B. 420. (a) Tress v. Savage, 4 B. & Bl. 36 ; Arden v. Sullivan, 14 Q. B. 832 ; see supra, s. 1. Thus in Lee V. Smith, 9 Ex. 663, it was held that the agreement, not being under seal, was void as a lease ; but Martin, B., stated it to be his impression that it might be referred to for the purpose of seeing what the terms of the tenancy were ; and Parke, B., stated that he did not dissent from that proposition. (6) 31 L. J. Ex. 96 ; 7 H. & N. 73. (c) 24L.J.C. P. 182;16C.B. 420. In that case, by articles of agreement in writing, dated the 3d April 1854, plaintiff agreed to let, and defendant agreed to take, certain premises for the term of five years, and the de- fendant to purchase the same at the end of five years, yielding to the plaintiff, as well for the rent for the five years, as for the purchase, ^70. The Court held that the intention of the parties, as declared by the words of the instrument, was to create a lease, but as it was not by deed, it was void. Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 67 deed, in using the words, '■agree to let,' to mean what they actually say, and not an absolute lease." So in Tidey v. MoUett {d), Erie, O.J., said, " I think the writing upon which thi.* case turns is an agreement. The judges of this country were at one time not disposed to look upon writings such as this as agreements, but wishing to escape from the Statute of Frauds, they held them to be leases. Now, how- ever, since the statute of 8 & 9 Vict, c. 106, making leases not under seal void, it has been the practice, for a very similar reason to that which existed before, to hold them to be agreements." Again, such instruments being void as leases, may, it seems, be considered as agreements, so that a Court of Equity would enforce specific performance. Thus, in Taswell v. Parker (e), where an instrument void at law as a lease was sought to be enforced in equity, the Lord Chancellor (Lord Chelmsford), on appeal, in affirming the decree for specific performance made by Vice-Chancellor Stuart, says, " The legislature appears to have been very guarded in language, for it uses the expression shall be void at law — that is, as a lease. If the Legislature had intended to deprive the document • of all efficacy, it would have said that the instrument shall be void to all intents and purposes. There are no such words in the Act. I think it would be too strong to say, that because it is void as a lease, it cannot be used as an agreement enforceable in equity, the inten- tion of the parties having been that there should be a lease, and the aid of equity being only invoked to carry that intention into effect " (_/). (d) 33 L. J. C. p. 235 ; 16 C. B. (e) 2 De G. & Jon. 559. N.S. 298 ; see also Anderson v. (/) See Davis v. Jones, 17 C. B. The Midland Railway Co. 30 L. 625. J. Q. B. 94. Digitized by Microsoft® 68 CREATION OF TENANCY. [part I. Distinction between leases and licenses. Where the intention of the parties, as expressed in the instrument, is that the one shall divest himself of the exclusive possession of the subject-matter, and the other come into it for a determinate period, that is a lease {g). But if the intention of the parties is that the instrument should operate as a mere license, and that exclusive possession should not be given, then it is not a lease, although it may contain the usual words of demise (Ji). A license, determined by a month's notice, to fasten boats to moorings, on payment towards the expenses of maintaining the moorings of the annual sum of £30, does not amount to a demise (z). A liberty to take ore in a particular tract of country, and pay £25 a year rent for it, does not amount to a lease (J) ; and so also of a license to shoot (k), or to exercise a right of way (J). But where the words used in the agreement show an intention to give exclusive possession, there a tenancy will be created {rn).] stamp. The distinction between a lease and a mere agree- ment or license was formerly of considerable impor- tance, in consequence of the different stamp which the instrument required according as it fell within the one {g) Reg. V. Morrish, 32 L. J. M. C. 245. (A) Taylor v. Caldwell, 3 B. & S. 826 ; 32 L. J. Q. B. 164 ; Hancock v. Austin, 14 C. B.N. S. 634 ; 32 L. J. C. P. 252. (i) Watkina v. Overseers of Milton, L. R. 3 Q. B. 350 ; 37 L. J. M. C. 73; Grant v. Oxford Local Board, L. B. 4 Q. B. 9. See HiU 1!. Tupper, 2 H. & C. 121 ; 32. L. J. Ex. 217; Stockport Waterworks Co. v. Potter, 3 H, & C. 300. 0') Ward V. Day, 4 B. & S. 337 ; 5 Id. 359 ; 33 L. J. Q. B. 3 ; ib. 254 ; Carr v. Benson, L. R. 3 Ch. Ap. 524. (k) Bird v. Great Eastern Rail- way Co. 19 C. B. N.S. 268. See Hooper v. Clark, 8 B. & S. 150 ; L. R. 2 Q. B. 200. {I) Wood V. Leadbitter, 13 M. & W. 838 ; Hyde v. Graham, 1 H. & C. 593. (m) Roads v. Churchwardens of Trumpington, L. R. 6 Q. B. 56 ; 40 L. J. M. C. 35. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 69 class or the otlier. By the 23 Vict., c. 15, however, the stamp upon an agreement for a lease, for any term not exceeding seven years, was the same as for a lease; and now, by the 33 & 34 Yict., c. 97, s. 96, the term is extended to thirty-five years. In futm:e, therefore, leases, and not mere agreements, will be made. The ad valorem stamp duty on a lease is to be regu- lated by the consideration appearing on the face of it, although it may not be that which is actually paid {n). A lease containing several demises at distinct rents must be stamped according to the aggregate of the stamps required for the several demises {p). It was held that if a lease contained a contract for the purchase of goods, it could not be given in evidence to prove the sale of the goods unless it had a lease stamp, although it might have had an agreement stamp {p). Now, by the 33 & 34 Vict., c. 97, s. 97, pi. 1, where part of the consideration consists of goods, &c., the value of the goods is to be deemed a con- sideration in respect of which the lease is chargeable with ad valorem duty (§•). A lease containing a right of purchasing the pre- mises for a certain sum, only requires a single lease stamp {r). If a stamped lease be altered by a new document, (ji) Duck «. Braddyll, M'Clel. (p) Corder v. Drakeford, 3 217 ; 13 Price 455 ; and see 33 & Taunt. 382 ; Clayton v. Burteu- 34 Vict. t. 97, s. 97, pi. 2, 'post shaw, 5 B. & C. 41 ; Stone v. p. 75. Kogers, 2 M. & "W. 443. (o) Boase v. Jackson, 3 B. & B. (q) See the sect, post, p. 74. 185 ; Blount v, Pearman, 1 Blng. (r) Worthington v. Warring- N. C. 408 ; Parry v. Deere, 5 A. ton, 5 C. B. 636. & E. 551. Digitized by Microsoft® 70 CBEATION OF TENANCY. [PAKT I. that will require a stamp (s), unless the alterations are merely an expression of what was before in- tended (t). Where a document is a mere proposal for a lease which is subsequently agreed to by parol, it does not require a stamp (m) ; but where it is itself a concluded agreement, although unexecuted, it is otherwise (v). Where the terms are agreed upon by parol, and only recognised by a subsequent instrument, it need not be stamped (m). Where an unstamped agreement was incorporated in a subsequent stamped agreement, it was held the two constituted a perfect lease, and might be both given in evidence (x). Though an oral lease for three years may be good, yet if it is reduced into writing it must be stamped (y). It is proposed, in dealing with the present subject, only to refer to those general provisions of the latest Stamp Act which seem most material to the present work, and also to those special provisions which re- late to stamps on leases and other matters bearing on the relations between landlord and tenant. " The Stamp Act, 1870," which came into opera- tion on 1st January 1871, enacts, by sect. 3, that (s) Reed V. Deere, 7 B.&C. 261. («;) Bethell t-. Bleucowe, 3 M. (*) Doe d. Waters v. Hough- & G. 119. See Marshall v. Powell, ton, 1 Man. & R. 208. 9 Q. B. 779. (m) Drant v. Browne, 3 B & C. {x) Pearce v. Cheslyn, 4 A. & E. 665. 225. (v) Chadwiok ti. Clarke, IC.B. (y) Prosser v. Phillips, Bull. 700 ; Turner v. Power, 7 B. & C. N. P. 269. 625. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 71 " from and after tlie commencement of this Act, and The stamp subject to the exemptions contained in the schedule ^^°^P^''°' ^^^^^ to this Act, and in any other Acts for the time being 99. in force, there shall be charged for the use of Her Majesty, her heirs and successors, upon the several instruments specified in the schedule to this Act, the several duties in the said schedule specified, and no other duties." This in effect repeals all progressive duty, which is not mentioned in the Act or in the schedule thereto. Sect. 7 provides that instruments written upon stamped paper, or subsequently stamped, are to be so stamped as to make the stamp appear upon the face of the instrument, and so as it cannot be used for any other instrument. Where there are more than one instrument on one paper, each must be stamped. Sect. 8 provides that, except where it is provided to the contrary, an instrument containing separate matters is to be separately charged, and wher« it is made for considerations for which it is chargeable with ad valorem duty, and also for a further consideration, it is to be charged for such further consideration separately {z). 'o^ By sect. 9, instruments are to be stamped with the stamps which are appropriated to them by words on the face of the stamp. By sect. 10, the facts affecting the amount of the stamp, &c., are to be set forth in the instrument, under certain penalties. By sect. 15 — (1.) " Except where express provision (z) See, however, sect. 98, pi. 2, post, p. 75.., Digitized by Microsoft® 72 CREATION OF TENANCY. [PART I. to the contrary is made by this or any other act, any unstamped or insufficiently stamped instrument may be stamped after the execution thereof, on payment of the unpaid duty, and a penalty of £10 ; and also by way of further penalty, where the unpaid duty exceeds £10 of interest on such duty, at the rate of £5 per centum per annum, from the day upon which the in- strument was first executed, up to the time when such interest is equal in amount to the iinpaid duty. And the payment of any penalty or penalties is to be de- noted on the instrument by a particular stamp. (2.) Provided as follows : — (a) Any unstamped or insuffi- ciently stamped instrument, which has been first exe- cuted at any place out of the United Kingdom, may be stamped at any time within two months after it has been first received in the United Kingdom, on pay- ment of the unpaid duty only. (5) The Commissioners may, if they think fit, at any time within twelve months after the first execution of any instrument, remit the penalty or penalties of any part thereof." By sect. 16 — (1.) " Upon the production of an in- strument chargeable with any duty as evidence in any Court of civil judicature, in any part of the United Kingdom, the officer whose duty it is to read the in- strument shall call the attention of the judge to any omission or insufficiency of the stamp thereon ; and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the amount of the unpaid duty, and the penalty payable by law on stamping the same as aforesaid, and of a further sum of £1, be received in evidence, saving all just exceptions on other grounds. (2.) The officer receiving the said duty and penalty shall give a receipt for the same, and make an entry in a book kept for that purpose of the payment of the Digitized by Microsoft® CH. IV.j HOW DEMISES ARE MADE. 73 amount thereof, and shall communicate to the Com- missioners the name or title of the cause or proceeding in which, and of the party from whom, he received the said duty and penalty, and the date and description of the instrument, and shall pay over to the Receiver- General of inland revenue, or to such other person as the Commissioners may appoint, the money received by him for the said duty and penalty. (3.) Upon production to the Commissioners of any instrument in respect of which any duty or penalty has been paid as aforesaid, together with the receipt of the said officer, the payment of such duty and penalty shall be denoted on such instrument accordingly." By sect. 17, " Save and except as aforesaid, no instrument executed in any part of the United King- dom, or relating, wheresoever executed, to any property situate, or to any matter or thing done, or to be done, in any part of the United Kingdom, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful, or available in law or equity, unless it is duly stamped in accordance with the law in force at the time when it was first executed." Sects. 18-20 relate to proceedings for getting instruments stamped by Commissioners, after which they become admissible in evidence, notwithstanding any objection relating to duty. By sect. 23, " Except where express provision is made to the contrary, all duties are to be denoted by impressed stamps only." Sect. 24 relates to the proper mode of cancelling an adhesive stamp by writing the name and date across it, without which it will not be deemed duly stamped. Digitized by Microsoft® 74 CREATION OF TENANCY. [PART I. unless it is otherwise proved that the stamp was affixed at the proper time. The most material of the special regulations of the statute are as follows : — AS TO DUPLICATES AND COUNTERPARTS. By sect. 93, the duplicate or counterpart of an in- strument chargeable with duty (except the counter- part of an instrument chargeable as a lease, such counterpart not being executed by or on behalf of any lessor or grantor), is not to be deemed duly stamped, unless it is stamped as an original instru- ment, or unless it appears by some stamp impressed thereon that the full and proper duty has been paid upon the original instrument, of which it is the dupli- cate or counterpart. AS TO LEASES, &C. By sect. 96 — (1.) An agreement for a lease or tack, or with respect to the letting of any lands, tenements, or heritable subjects, for any term not exceeding thirty- five years, is to be charged with the same duty as if it were an actual lease or tack made for the term and consideration mentioned in the agreement. (2.) A lease or tack made subsequently to, and in conformity with, such an agreement, duly stamped, is to be charged with the duty of sixpence only. By sect. 97 — (1.) "Where the consideration, or any part of the consideration, for which any lease or tack is granted or agreed to be granted, does not consist of money, but consists of any produce or other goods, the value of such produce or goods is to be deemed a Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 75 consideration in respect of which the lease, or tack, or agreement is chargeable with ad valorem duty, and where it is stipulated that the value of such pro- duce or goods is to amount at least to, or is not to exceed, a given sum ; or where the lessee is specially charged with, or has the option of paying after, any permanent rate of conversion, the value of such pro- duce or goods is for the purpose of assessing the ad valorem duty, to he estimated at such given sum, or according to such permanent rate. (2.) A lease or tack or agreement, made either entirely or partially for any such consideration, if it contains a statement of the value of such consideration, and is stamped in accordance with such statement, is, so far as regards the subject-matter of such statement, to be deemed duly stamped, unless or until it is otherwise shown that such statement is incorrect, and that it is in fact not duly stamped. By sect. 98 — (1.) A lease or tack or agreement for a lease or tack, or with respect to any letting, is not to be charged with any duty in respect of any penal rent, or increased rent, in the nature of a penal rent, thereby reserved or agreed to be reserved or made pay- able, or by reason of being made in consideration of the surrender or abandonment of any existing lease, tack, or agreement of, or relating to, the same subject- matter. (2.) No lease made for any consideration or considerations in respect whereof it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of his having previously made, any substantial improvement of or addition to the property demised to him, or of any covenant relating to the matter of the lease, is to be charged with any (a) duty in respect of such further (a) This is a re-enactment of the 33 & 34 Vict. c. 44, b. 1, Digitized by Microsoft® 76 CREATION OF TENANCY. [PAET I. consideration. (3.) No lease for a life or lives not exceeding three, or for a term of years determinable with a life or lives not exceeding three, and no lease for a term absolute, not exceeding twenty-one years, granted by an ecclesiastical corporation, aggregate or sole, is to be charged with any higher duty than 35s. (4.) No lease for a definite term exceeding thirty-five years, granted under the " Trinity College (Dublin) Leasing and Perpetuity Act, 1851," is to be charged with any higher duty than would have been chargeable thereon, if it had been a lease for a definite term, not exceeding thirty-five years. (5.) No lease or tack, or agreement for a lease or tack in Scotland, of any dwelling-house or tenement, or part of a dwelling- house or tenement, for any definite term not exceed- ing a year, at a rent not exceeding the rate of £10 per annum, is to be charged with any higher duty than one penny. By sect. 99, the duty upon an instrument charge- able with duty as a lease or tack for any definite term less than a year of — (1.) any dwelling-house or tenement, or part of a dwelling-house or tene- ment, at a rent not exceeding the rate of £10 per annum; (2.) any furnished dwelling-house or apart- ments ; or upon the duplicate or counterpart of any such instrument, may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is first executed. By sect. 100 — (1.) Every person who executes or prepares, or is employed in preparing, any instrument upon which the duty may, under the provisions of the last preceding section, be denoted by an adhesive which was passed in consequence Lease, L. R. 5 Ez. 82 ; 39 L. J. of the decision In re Bolton's Ex. 51. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 77 stamp, and wliicli is not, at or before the execution thereof, duly stamped, shall forfeit the sum of £5. (2.) Provided that nothing in this section contained ^ shall render any person liable to the said penalty of £5 in respect of any letters or correspondence. By the schedule to the above Act, the following Schedule of (amongst other) stamp duties are imposed, viz. : — ^*^™P duties. Agreement for a lease, or tack, or for any letting. See Lease. Agreement, or any memorandum, of an agreement, made in England or Ireland under hand only, or made in Scotland with- out any clause of registration, and not otherwise specifically charged with any duty, whether the same be only evidence of a contract, or obligatory upon the parties from its being a written instrument, . . . .£006 Exemptions. (1.) Agreement or memorandum the matter whereof is not of the value of £5. (2.) Agreement or memorandum for the hire of any labourer, artificer, manufacturer, or menial servant. (3.) Agreement, letter, or memorandum made for or relat- ing to the sale of any goods, wares, or merchandise. (4.) [Not copied.] And see sect. 36. Covenant. Any separate deed of covenant (not being an instrument chargeable with ad valorem duty, as a conveyance on sale or mortgage) made on the sale or mortgage of any property, and relating solely to the conveyance or enjoyment of, or the title to, the property sold or mortgaged, or to the production of the muniments of title relating thereto, or to all or any of the matters aforesaid — Where the ad valorem duty in respect of the [equal to the consideration or mortgage money does not] 5^™^°* exceed 10s., \valoran, ' I duty. In any other case, . . . £0 10 Digitized by Microsoft® 78 CREATION OF TENANCY. [PART I, Deed of any kind whatsover, not described in this schedule, . . . . £0 10 And see sect. 4. Duplicate or counterpart of any instrument charge- able with any duty — f The Bame Where such duty does not amount to 5s., ] origS'n! ^ strument. In any other case, . . . 5 And see sect. 93. Lease or tack — (1.) For any definite term less than a year — (a) Of any dwelling-house or tenement, or part of a dwelling-house or tenement, at a rent not exceeding .£10 per annum, . 1 (6) Of any furnished dwelling-house or apart- ments where the rent for such term ex- ceeds £25, . . . 2 6 {The same duty as a lease for a j&aV aV bile rent re- served Tor definite term ; Of any lands, tenements, or heritable subjects — Where the consideration, or any part of the consideration, moving either to the lessor, or to any other person, consists of any money, stock, or security — {The same ' duty as a conveyance on a sale for the same con- riucic uuc ^iuiioiu.ciauj.uii, ur any pari, oi ^'^*"''°"- the consideration, is any rent — In respect of such consideration ; If the rent, whether reserved as a yearly rent or otherwise, is at a rate or average rate : — Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 79 Not exceeding £5 per annum, Exceeding £5, and not exceeding £10, 10, 15, 20, 25, 50, 75, 100, 15, 20, 25, 50, 75, 100, If the term is definite, and does not exceed 35 years, or is indefinite. If the term, being defi- nite, exceeds 35 years, but does not ex- ceed 100 yrs. If the term, being defi- nite, exceeds 100 years. £ s. d. £ s. d. £ s. d. 6 3 6 1 6 12 16 9 18 2 12 14 2 6 15 1 10 5 1 10 3 7 6 2 5 4 10 10 3 6 5 1 10 3 10 J'or every full sum of £50, and also for any fractional part of £50 thereof, Of any other kind whatsoever not hereinbefore described. And see sects. 96-100. Schedule, inventory, or document of any kind what- soever referred to, in, or by, and intended to be used, or given in evidence as part of, or as ma- terial to, any other instrument charged with any duty, but which is separate and distinct from, and not indorsed on or annexed to, such other instru- ment — Where such other instrument is chargeable j aajy^™^ with any duty not exceeding 10s., |™stmment. £0 10 In any other case, Exemptions. (1.) [Not copied.] (2.) Any public map, plan, survey, apportionment, allotment, award, and other parochial or public document and writing, made under or in pursuance of any act of Parliament, and deposited or kept for reference in any registry, or in any public office, or with the public books, papers, or writings of any parish. Digitized by Microsoft® 80 CREATION OF TENANCY, [PART I. Surrender — Of copyholds. See Copyhold. Of any other kind whatsover, not chargeable with duty as conveyance on sale or mortgage, £0 10 4. Parcels Demised. The parcels The tenements or parcels intended to be demised demised. ^^^ ^g^^ Specified. They should be described with a reasonable degree of accuracy. Farming leases, after setting out the names or denominations and boun- daries of the subject of the demise, usually refer to the occupation of the preceding tenant, and state the name by which the farm is known. The extent of land which general words inserted in a lease embrace depends on the object and intention of the parties, to be collected from the instrument (b). The rule is, that whatever constitutes the essence of the thing granted, or is parcel of it, will pass with it, although it be accidentally severed at the time of the lease. Therefore, by the lease of a mill, the millstone passes, though severed at the time ; and by the lease of a house the door-keys, &c., pass, although by accident they may not be in their places when the lease is made (c). The word "land" will, unless a contrary intention is shown, be sufficient to pass, not only the soil, but all that grows or is built upon its surface, together with all that lies below it ; but in general the parti- cular subjects of demise are specified (d). A "farm" includes the farmhouse and buildings, and the lands (5)SeeDoe«i.Meyriokt). Meyer, (c) See Shep. Touch, 89, 90, 2 Or. & J. 223 ; Maitland v. Mao- 246. kinnon, 32 L. J. Ex. 49, 1 H. & (rf) Co. Litt. 4 a ; Burton v. C. 607 ; Hall v. Lund, 32 L. J. Brown, Cro. Jac. 648. Ex. 113. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 81 usually occupied therewith. A grange includes not only barns, but stables and outhouses used for the purpose of husbandry (e). In some cases a grant of the produce of the soil will pass the soil itself; thus pasture will be taken not only as the feeding on the land, but as the land itself; and so the grant of a wood will pass the soil as well as the timber (/). And it would appear that a lease of the "issues and profits" of land would pass the land itself; for to have the issues and profits is the same thing as to have the land itself (^). If a grant be made of a "boilery of salt," the land passes, for that is the whole profit (A). By the grant of a forest, park, chase, or warren, in the soil of the grantor, the soil as well as the privilege passes ; but it is otherwise if the soil be another's {i). The grant of a sheep-walk or a fold-course may include the soil by custom of the country (J). The lease of a fishery of a pond, with the spear-sedge, and the flags and the rushes growing in and about the same, has been held to pass the soil {K). If garden ground be let for years, and the lessee de- mise part of the term to an under-tenant, who builds upon it, by a grant of the garden ground the buildings thereon will pass {I). Where an annual sum was pay- able as tenant's damages, besides a way-leave rent for a coal railway passing through a farm, it was left to the jury to say whether the land covered by the rail- way passed by the agreement of letting to the tenant; because, if it did, the tenant, and not the landlord, was (e) See the various tenements (i ) Cromwell's case, Dyer, 169 accurately described, Co. Litt. 4, b. 5. (j) Huddlestone v. Woodroffe, (/) Co. Litt. 4 b. See Leigh v. 2 RoU. R. 61. Heald, 1 B. & Ad. 622. (i) Rexi). Old Ali-esf ord, 1 T. R. {g) Parker v. Plumber, Cro. 358. Eliz. 190. (i) Burton v. Brown, Cro. Jac. (A) Co. Litt. 4 b. 648. F Digitized by Microsoft® 82 CREATION OF TENANCY. [PART I. entitled to the sum payable as tenant's damages (m). A " messuage " is synonymous with dwelling-house, though more comprehensive (n), and will include adjacent buildings, orchard, and curtilage (o). The word "house," it seems, would comprise all that would pass by a grant of a messuage (p). The word " tene- ment " extends to everything that may be holden, and includes not merely land, but every inheritable right issuing out of, annexed to, or exercisable in land, such as advowso'ns, tithes, rents, &c. {q) ; but in leases it is commonly used in a restricted sense, as applicable only to houses and buildings. The word " hereditaments " extends not only to lands and tenements, but to some of the subjects of inheritable personal property, such as heirlooms (r). The word " premises " is very often introduced into leases, both as a term of reference and as a term of descrip- tion ; when used as a term of reference, it includes not only the parcels demised, but also the term granted (s). It is a general rule in the construction of deeds that where lands are described (f) with sufficient certainty, as by giving a particular name to a close, the addition of an allegation mistaken or false respecting it, as, (m) Wilson v. Anderson, 1 C. & Garden v. Tuck, Cro. Eliz. 89 S. C. ; K. 644. Smith v. Martin, 2 Saund. 400, (n) Doe d. Clements v. Collins, note 2 ; Steele v. Midland Railway 2 T. R. 502, per Ashurst, J. Co., L. K. 1 Ch. Ap. 275. (o) Fenn ?;. Grafton, 2 Bing. N. (q) Co. Litt. 6 a, 20 a; Gully C. 617 ; Shep. Touch. 94. v. Bishop of Exeter, 4 Bing. 295. (p) See the cases cited in (r) Lord Stafford v. Buckley, 2 " Hodges on Railways," ] 74-174, Ves. Sen. 170 ; Taylor v. Martin- as to the interpretation put by the dale, 12 Sim. 158. Courts on the words "house or (s) Onsley v. Fisk, 1 Anders, manufactory" inthe92dsect.of the 236; Jerman v. Orchard, Skin. Lands Clauses Consolidation Act, 528. 8 & 9 Viot. c. 18. Consult also (i) Doe d. Beach v. Lord Jer- Hargr. note 21 to Co. Litt. 6 b ; sey, 1 B. & Aid. 550, 3 B. & C. Chard v. Tuck, 3 Leon. 214; 870. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 83 for instance, in the name of the late occupier (u), or in the number of acres (»), or in the abuttals (w), or parish (x), or describing the premises as freehold in- stead of leasehold (y), or other mere misdescrip- tion (;?), will not avoid the instrument (a). But where lands are described in general terms, the addition of a particular circumstance or description will operate by way of restriction or modification (d). Thus where an estate consisted of thii'teen closes, and eight of the closes were specifically granted by name, it was ruled that the previous specific enumeration re- strained the operation of the subsequent general words, and excluded the otherwise general effect of the deed, so that only the eight specified closes passed by the grant (c). So where one having customary tenements, compounded and uncompounded, surrendered to the use of his will " all and singular the lands, tene- ments, &c., whatsoever in the manor which he held of the lord by copy of court-roll, in whose tenure or occupation soever the same were, being of the yearly rent to the lord in the whole of £4, 10s. 8^d., and com- pounded/or,^^ it was held that the words " and com- pounded for " restrained the operation of the surrender (u) Field V. Beaumont, 1 B. & (y) Doe d. Dunning v. Cran- Ald. 247 ; Welby v. Welby, 2 stoun, 7 M. & W. 1. Ves. & B. 191 ; Pullin v. Pullin, (z) See Manning v. Fitzgerald, 3 Bing. 47 ; Swift v. Eyres, Cro. post, p. 85. Car. 546, W. Jones, 435, Roll Abr. (») Doe d. Smith v. Galloway, 52 Graunts, pi. 26, 27 S. C. ; 5 B. & Ad. 45, Com. Dig. tit. Fait Trapp's case, 3 Leon. 235 ; (F.), 3 Preston Abstr. 206. Windham v. Windham, 3 Dyer, (h) Doe d. Smith o. Galloway, 376 ; Chamberlaine v. Turner, 5 B. & Ad. 45 ; Doe d. Parkin v. Cro. Car. 129 ; Blake v. Gold. W. Parkin, 5 Taunt. 321 ; Harris v. Jones, 379, Cro. Car. 447. Greathed, 8 East. 91 ; Bro. Abr. (v) Lord Willoughby v. Foster, Graunts, pi. 92. 1 Dyer, 80 b. ; Com. Dig. tit. Fait (c) Doe d. Meyrick v. Meyriok, (E.), 4. 2 Cr. & J. 225 ; Payler v. Ho- (M;)Roberts4).Karr, 5Taunt.501. mersham, 4 M. & S. 423. But (x) Lambe v. Beaston, 6 Taunt. see Ringer v. Canii, 3 M. & W. 207 ; Robinson v. Button, 2 Roll 343. Abr. 52, Graunts P. pi. 21. Digitized by Microsoft® 84 CREATION OP TENANCY. [PAKT I. to that description of copyholds then belonging to the surrenderer, and that the words " being of the yearly rent, &c., of £4, 10s. 8^d.," which were not referable to any actual amount of the rents, either compounded or uncompounded, though much nearer to the whole than to the compounded only, could not qualify or im- pugn that restriction (d). If a grant be made of a certain farm called Lismote, now in the possession of J. S., the farm will pass to the grantee, although not in the possession of J. S., but of a different person, because the error in the name of the occupier will not vitiate the grant ; but if the lands of Lismote extend into several parishes, and a grant is made of the lands of Lismote situate in the parish of A, then only so much of the lands as lie within the specified parish will pass, because the words " in the parish of A " are restrictive (e). Under a lease of all that part of the park called B, situate and being in the county of 0, and now in the occupation of S, lying within certain specified abuttals, with all houses, &c., belonging thereto, and which now are in the occupation of S, a house on a part which was within the abuttals, but not in the occupation of S, was held to pass (_/). By a lease of all that town- land of B, containing 509 acres arable meadow and pasture, bounded by certain boundaries, it was held that 400 acres of bog and land reclaimed from bog within the boundaries passed (^). Where a lease of land was described by admeasurement, " with the [d) R. d. Conolly v. Vernon, (/) Doe d. Smith v. Galloway, 5 East. 51. The cases are well 5 B. & Ad. 43. See Morris v. distinguished in the judgment of Dimes, 1 Ad. & E. 663; and the Court, delivered by Lord Martyr v. Lawrence, 2 De Gt. J. EUenborough, C.J. ; but see & S. 261. Strut V. Pinch, 2 Sim. & St. 229. {g) Jack v. M'lntyre, 12 CI. & (e) 3 Prest. Abstr, 206, Falsa, Fin. 151. demonstratio non nocet; Shep, Touch. 246. Digitized by Microsoft® CH. rv.] HOW DEMISES AKE MADE. 85 houses now erected or to be erected thereon " (it being found as a fact by the jury, that at the time the lease was executed the foundations of the houses had been laid), it was held to be in effect the same as the lease of a specific house, and the actual measurements not corresponding with those stated in the lease, were held to be meveij/alsa demonstratio (fi). Where the demise is in its terms definite and cer- tain, no evidence is admissible in contradiction of the instrument (z). But whether a particular thing be parcel of the demised premises, is matter of evidence to be collected from the nature of the subject, and from its state and condition at the time of making the demise (J). Thus a demise of a piece of ground, late in the occupation of J. S., will not pass a vault built under the ground demised, and which at the time of making the lease was in the tenancy of a third person {k). Nor will the demise of a messuage, with all the rooms thereto belonging, comprise a room which had been separated by a brickwork partition from the rest of the house, and which had not been used with it for many years prior to the making of the lease, although the room was situated within the external walls (I). Where there was in a lease a pre- cise description by metes and bounds of a house • and premises, but an adjoining stable occupied with the house for many years previously was not included in the metes and bounds ; it was held that it did not pass under the words "together with all stables, &c., (h) Manning ■„. Fitzgerald, 29 Stra. 610 ; Hall v. Lund, 32 L. J. L. J. Ex. 24. Ex. 117. (j) Doe d. Brown v. Brown, 11 (Tc) Doe d. Freeland v. Burt, 1 East. 441 ; Doe d. Freeland o. T. K. 701 ; Press v. Parker, 2 Burt. 1 T. R. 701. See Hunt v. Bing. 456. Singleton, Cro. Eliz. 473. (I) Kerslake v. White, Appen- (j) Field V. Beaumont, 1 B & dix to Manning's 2 P. Digest, Aid. 247 ; Skipworth v. Green, 1 368, 2d edit. ; 2 Stark, 2 P. 0. 508. Digitized by Microsoft® 86 CEEATION OF TENAi^CY. [PAET I. to the said premises hereby demised belonging or appertaining " (m). Where the premises described by metes and bounds included a portion of a walk common to a row of houses, and also granted a right of way over the whole walk to the lessee ; it was held that the pre- mises as described by metes and bounds passed to the lessee notwithstanding the gi-ant of the right of way (m.) When the number of acres or estimated extent of the farm is specified, the words "more or less," or some equivalent expression, should be added, in order to show that the contents were mentioned as matter of general description in the lease, and not to regulate the quantity of land or amount of rent. The effect of the words " more or less," added to the statement of quantity, has not been absolutely fixed by decision, being sometimes considered as intending only to cover a small difference one way or the other, and some- times as leaving the quantity altogether uncer- tain (o). The word " appurtenances," is introduced into leases for the pui'pose of including any easements or (m) Maitland v. Maokinnon, 32 Clayton's Eep. 46. Questions on L. J. Ex. 49. this subject often arise on con- (n) Curling v. Mills, 6 M. &. E. tracts of sale, and serve to illus- 173 ; for plan of the premises, see trate the construction of similar Dykes u. Blake, 4 Bing. N. C. clauses in agreements for leases. 463. Though the land is neither bought (o) Marquis Townshendu. Stan- nor sold professedly by the acre groom, 6 Vesey, 341 ; Godfrey v. in agreements for purchase, the Little, 2 R. & My. 630-635 ; presumption is that, in fixing the Winch V. Winchester, 1 Ves. & price, regard was had on both sides B. 376 ; Neale d. Leroux v. Par- to the quantity which each party kin, 1 Esp. 229 ; Day v. Finn, supposed the estate to contain. Owen, 133 ; Cross v. Elgin, 2 B. See Sugden's " Vendors and Pur- & Ad. 110; Rushworth's case, chasers," 324, 14th edit. Digitized by Microsoft® CH. IV. j HOW DEMISES AKE MADE. 87 servitudes used or enjoyed with the demised pre- mises (j»). In order to constitute an appm-tenance, there must exist a propriety of relation between the principal or dominant subject, and the accessory or adjunct ; which is to be ascertained by considering whether they so agree in nature and quality, as to be capable of union without incongruity (q). If a lease be made of a house and land, with a right of cutting turf on an ad- jacent bog, by such demise the right of turbary will be appurtenant to the house, and upon any assignment of the lessee's interest such right will pass as an ap- purtenance; but a right of cutting turf cannot be rendered appurtenant to land alone, as the fuel is only intended for consumption in a house (r). So common of pasture cannot be made appurtenant to a house without land attached to it on which cattle can be kept (s). Nor can land be made appurtenant to land, nor an incorporeal hereditament to things in- corporeal. The strict technical meaning of the word " appm-- tenances" is confined to the buildings, curtilage, and garden belonging to the house, and does not include land usually occupied with the house (t). If, however, it can be collected from the deed itself, that the parties did not intend to use the word in its strictly legal sense, the Court, in order to effectuate (j>) Potter V. North, 1 Saund. (*) Bro. Abr. Feoffments de 350. Terres, pi. 53 ; Bettisworth's (q) See Gale on Easements, p. case, 2 Rep. 32 a ; Hearne v. 11. Allen, Cro. Car. 57 ; Buck d. ()■) Tyrringham's case, 4 Eep. Whalley v. Nurton, 1 B. &. P. 53 ; 37 ; Co. Litt. 121 b. Doe d. Norton o. Webster, 12 A. (s) Scholes V. Hargreaves, ST. & E. 442. See Smith v. Martin, B. 46. 2 Saund. 401, note 2. Digitized by Microsoft® 88 CREATION 01" TENANCY, [PAKI' I. their object, -will give to the word the meaning which the parties intended it to hear (u). The length of time which will invest a hereditament with the quality of an appurtenance is not capable of accurate definition, but in order to pass as appur- tenant by the assignment of a lease, it should acquire the reputation of being parcel of the premises com- prised in the demise (w). Easements and privileges legally appurtenant to property pass by a conveyance of the property simply without any additional words ; but easements and pri- vileges may be used or enjoyed with, or may be re- puted to appertain to, property, and may be capable of being conveyed with it, without being legally ap- purtenant; and such easements will not pass by a conveyance of the property simply, or without being expressly mentioned {w). If, however, any right of way or other easement is intended to be demised, the lease should extend to all ways or other easements appertaining to the demised premises, ox used and enjoi/ed with, any part thereof (a?), because the operation of the word "appurtenances" will be restrained to a previously existing right, and will not include, for instance, a right of way over the (u) See Barlow v. Ehodes, 1 Cr. of Kinnoul, 5 Bing. N. C. 1 ; Onley & M. 439, per Lord Lyndhiirst ; v. Gardiner, 4 M. & W. 496 ; Morris v. Edgington, 3 Taunt. Clayton «. Corby, 2 G. & D. 174; 24. Worthington v. Gimson, 29 L. J. {v) Higham v. Baker, Cro. Eliz. Q. B. 116 ; guffield v. Brown, 33 16; Jenning3!).Lake,Cro.Car.l68. L. J. Ch. 249 ; Crossley v. Light- (w) See Davidson's Conveyano- owler, 36 L. J. Ch. 584; Pyer'W. ing, vol. i. 87; James v. Plant, 4 Carter, 1 H. & N. 916 ; Polden v. A. & E. 749, 5 B. & Ad. 791 ; Bastard, L. R. 1, Q. B. 158. Barlow v. Rhodes, 1 Cr. & M. 439; {x) Whalley v. Thomson 1 B & Bower v. Hill, 2 Bing. N. C. 339 ; P. 376 ; Harding v. Wilson, 2 B. Thomas v. Thomas, 2 Or. M. & & C. 100 ; Kooystra v. Lucas 5 R. 34 ; Murley v. M'Dermott, 8 B. & Aid. 831 ; Barlow v Rhodes A. & E. 138 ; Hinchcliffe v. Earl 1 Cr. M. & N. 439 ' Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 8 soil of the lessor which had been extinguished by unity of ownership ; and such a privilege will not pass to the lessee unless it be a way of necessity, without the introduction of words showing the lessor's intention to create the right or servitude de novo (y). Where there is no right of way, properly so called, but only a road used by the owner who leases the premises, and then accepts a surrender of part with all ways, &c., therewith now used and enjoyed, this does not give the owner a right of way. Such words will revive a right of way which once existed, but which remained in abeyance during the joinder of the dominant and servient tenements, but they will not create a right of way {z). After the parcels are set out, exceptions and reser- Exceptions vations are often inserted in favour of the lessor. An tfons^'^^'''^^^' exception, being the act of the lessor, is construed strictly against him (a). An exception must consist of some component existing part of the thing demised, capable of being severed and distinguished from it ; while a reservation (5) extends to some right or profit (y) James v. Plant, and other 3 Leon. 29, case 57, 54 ; case 79, cases cited supra. 5Q ; case 82. '* A right of way (z) Langley v. Hammond, L. R. cannot in strictness be made the 3 Ex. 161 ; 37 L. J. Ex. 118. subject either of exception or re- (a) Shep. Touch. 77 ; Earl of servation, as it is neither parcel Cardigan v. Armitage, 2 B. & C. of, nor issuing out of, the thing 197. granted. The former being essen- (5) Shep. Touch, p. 80. "A tial to an exception, and the latter reservation is a clause of a deed to a reservation. A right of way whereby the lessor, &o., doth re- reserved (using that word in a serve some new thing to himself popular sense) to a lessor is, in out of that which he granted strictness of law, an easement before. . . . This doth differ from newly created by way of grant an exception, which is ever part from the lessee, in the same man- of the thing granted, and of a thing ner as a right of sporting or fish- ire esse at the time . . . ." See ing." The Durham and Sunder- also Co. Litt. 47 a ; Brooke's land Railway Co. v. Wallier, 2 Q. Abr. tit. Eeservations, pi. 46 ; B. 967, per Tindal, C.J. See Anon. Moor. 90, case 234 ; Anon. Pannell v. Mill, 3 C. B. 625. Digitized by Microsoft® 90 CREATION OF TENANCY. [PAKT I. which previously had no separate existence, but is to issue from or he derived out of the thing leased. The word " excepting " is often applied both to re- servations and exceptions. But as they require remedies wholly different, they should be carefully distinguished (c). The requisites to make a good exception are enume- rated in " Sheppard's Touchstone" {d) : — 1. Theexcep- tion must be in apt words, as " saving," ''excepting," &c. 2. It must be part of the thing demised, as timber trees (e), mines, and quarries; and not of some other thing, as rent-heriot, suit of court, suit of mill, which are reservations (_/) ; or liberty of hawking, hunting, fishing, and fowling, which are privileges or rights granted to the lessor, though words of reser- vation and exception be used {g). But where there was a lease of certain lands, together with all houses, water-courses, &c., excepting " a water-course flow- ing or descending from " a certain spot, through a meadow; it was held in this peculiar case to be an ex- ception of the water itself, not of the channel through which it flowed (A). 3. It must be part only, and not the greater part. 4. It must be of such a thing as is severable from the thing granted, and not an in- separable incident. Thus if a lease be made of a (c) Com. Dig. tit. Faits (E), 8 ; (e) As to the meaning of tim- Pannell v. Mill, 3 C. B. 625 ; Fancy ber trees, see " Cragg on Trees and ■u. Scott, 2 M. & Ey. 335 ; Mit- Woods." calfe V. Westaway, 17 C. B. N.S. (/) See Doe d. Douglass). Lock, 658, 34 L. J. C. P. 114 ; Proud 2 A. & E.'743. V. Bates, 11 Jur. N.S. 441, {g) Wickham v. Hawker, 7 M. Wood, V.C. ; Doe d. Douglas v. &, W. 76. See Fancy v. Scott, 2 Lock, 2 A. & E. 743 ; Wickham M. & E. 335 ; Blatchford v. Ply- V. Hawker, 7 M. & W. 76 ; Lord mouth, 3 Bing. N. C. 691 ; Co. Cardigan v. Armitage, 2 B. & C. Litt. 47 a, 143 a. 197 ; BuUen v. Denning, 5 B. & C. {h) Doe d. Egremont v. Wil- 842 ;Goodrightrf.PetersD. Vivian, liams, 17 L. J. Q. B. 154. See 8 East. 190; Moore o. Earl of Blatchford i>. Mayor of Plymouth, Plymouth, 3 B. & Aid. 68, 3 Bing. N. C. 691. (d) Page 77. Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 91 rectory except the glebe, tlie exception is void, for no rectory can exist without a glebe ; and so of a manor without the demesnes {i). 5. It must be of such a thing as he that doth except may have, and which properly belongs to him. Thus it must be of a parti- cular thing out of a general, and not of a particular out of a particular, as of one acre out of twenty, or of a demise of house and shops, except the shops (J.) It must be certainly described and set down ; as if a man grant all his lands in Essex, except his lands in Dale, or excepting one particular acre, such exception is good ; but if the exception be of a chamber in a house, or of an acre, without saying which chamber or acre, the exception is void. But an agreement to let a farm, less a stated number of acres, will be supported in equity, though the lands to he excepted are not specified. Thus, where a rector agreed to let a farm, except thirty-seven acres (not saying which), and the tenant took possession, but before the lease was executed, disputes arose respecting the lands to be taken by the rector, on a bill being filed against the tenant for non-performance of the agreement, it was held that the rector had a right to select the lands, as the lease had not been executed (/e). A lease of lands excepted " all timber, timber trees, and other trees, &c., bushes and thorns, other than such bushes and thorns as should be necessary for the " repairs of the fences," the lessee covenanting to keep the fences in repair, and the lessor to find and provide, if growing on the premises, rough timber stakes and bushes ; it was held that the provision as to bushes and thorns necessary for repairs was not an excep- tion out of an exception, but that all trees, bushes, (i) Mabie's case, Winch. 23. (Tc) Jenkins u. Green, 28 L. J. {j) 2 Roll Abr. 463, 454 ; Dor- Ch. 817. rell V. Collins, Cro. Eliz. 6. See CudUp V. Rundall, 3 Salk. 166. Digitized by Microsoft® 92 CREATION OF TENANCY. [pART I. and thorns were excepted out of the demise, whether part of a fence or not, or whether necessary for repairs or not {I). The same rule as to what is included in the parti- cular thing leased or granted applies to excep- tions (m). Therefore an exception of all the wood will be an exception of the soil whereon the wood grows (n), unless it clearly appear that it was merely the intention of the parties to except only the wood itself (o). Thus in Leigh ». Heald(jo), by the lease of a tenement described as containing nineteen acres, save and except all timber trees, wood, and under- woods, &c., six acres of the soil, which at the time of the lease were covered with growing wood, were not excepted. The question is, whether the expression extends to the place on which the trees grow, or merely to the trees, and must be governed by the intention, to be collected from the whole of the instrument. A valid exception or reservation out of the demised premises cannot be made to a person who is a stranger to the estate. Thus upon a conveyance of lands in fee by a mortgagee, which was confirmed by the mortgagor, to the purchaser, it was covenanted that it should be lawful for the mortgagor, his heirs and assigns, to search for coal in the premises, and to take and carry away what should be found. It was held that this covenant could not operate as an exception or reservation in favour of the mortgagor, since he had no legal estate in him, and was in law no more than (T) Jenney v. Brook, 6 Q. B. 323. (o) Pinoomb v. Thomas, Cro. (m) Shep. Touch. 100. See Jac. 524. See Smith ti. Bole, Cro. Hewitt V. Isham, 7 Exoh. 77 ; Jac. 458. Liford's case, 11 Co. E. 51 b. (p) 1 B. & Adol. 622. See (») Ive 41. Sams, Cro. Eliz. 521; also London v. Southwell, Hob. Bacon v. Gyrling, Cro. Jac. 296 ; 304 ; Wyndham v. Way, 4 Taunt, Whistler v. Paslow, Cro. Jac. 487. 316. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 93 a stranger to the estate, and could not except or re- serve that which he had not before (y). 5. Habendum. The object of the habendum is to fix with certainty the Habendum, time for which the parcels demised are to be held, and to determine the quantity of the estate granted (r). The habendum^ however, is not an essential part of a deed, for the premises are the operative part. But if no estate be mentioned in the premises, the grantee will take nothing under that part of the deed, except by implication and presumption of law. If a haben- dum follow, the intention of the parties as to the estate to be conveyed will be expressed in the haben- dum, consequently no implication or presumption of law can be made ; and if the intention so expressed be contrary to the rules of law, the intention cannot take effect, and the deed will be void. Thus where free- hold lands were conveyed to W., his heirs and assigns, to hold the same unto W., his heirs and assigns, from and after the death of H. ; it was held that an immediate estate of freehold was given by the premises, and that the habendum had not the effect of rendering the conveyance void by limiting a freehold to commence in futuro (s). If land be granted to J. S. generally, without words of limitation, habendum for years, or at will, by the premises, J. S. would take an implied estate for life, but such implication is (q) Chetham v. Williamson, 4 Timmis v. Steele, 4 Q. B. 667, Co. East. 469; Moore v. Lord Ply- Litt. 299 a, Plowden, 153 ; Wy- mouth, 3 B. & Aid. 66. burd v. Tuck, 1 B. & P. 464 ; (r) Shep. Touch. 75 ; Com. Dig. Shaw v. Kay, 1 Exoh. 412 ; 2 tit. Fait (E) 9. Piatt on Leases, pp. 47-81 ; Doe (s)GoodtitledDodwell«.Gibb3, d. Darlington v. Ulph, 13 Q. B. 5 B. & C. 709, 717 ; judgment 244 ; Bird?;. Baker, 1 E. & E. 12 ; of Abbot, C.J., and cases there Jervis v. Tomkinson, 1 H. & N. cited, as to the operation of the 195. hahendum. See also Doe d. Digitized by Microsoft® 94 CREATION OF TENANCY. [PART I. controlled by the express estate mentioned in the habendum (t). Where an express estate is granted by the premises, and an estate is created by the habendum contrary to the rules of law, repugnant to or incon- sistent with the estate in the premises, the premises will be effectual, and the habendum will be rejected ; and this rule was established on the principle that deeds are to be construed in the manner most favour- able to the grantee ; the habendum was therefore allowed to enlarge, though not to abridge, the estate conferredby the premises {u). Thus if lands begranted to J. S. and his heirs, habendum to him for his own life, there the grantee takes an estate in fee-simple by the premises, and the habendum is void (»). But the premises of a deed may be qualified or explained by the habendum, where there is no inconsistency («?). Thus, if land be granted to A and his heirs, haben- dum to A and the heirs of his body, the premises will be qualified by the habendum {x). Commence- The time at which the term (y) is to commence meat of the ^^^^^^ ^^ stated with certainty. Thus where a lease for years was made on the 10th October, habendum from the 20th November, without saying in what year, (i) Baldwin's case, 2 Rep. 24 use of such persons and for sucli a, Co. Litt. 183 a. estate as J. T. should by any («) Co. Litt. 299 a. deed appoint, and in default {v] Goodtitle d. Dodwell v. thereof, to J. T. and G. B., and Gitibs, 5 B. & C. 739. See the heirs and assigns of J. T., the Lilley v. Whitney, 3 Dyer, 272 estate of G. B. being in trust for a ; jermon v. Orchard, 1 Salk. J. T., his heirs and assigns, it was 346, held, in order to give effect to the (w) Altham's case, 8 Rep. 154 deed, that the grant of the pre- b ; Doe d. Timmis v. Steel, 4 mises to J. T. might be rejected Q. B. 227 ; Atkinson v. Baker, as surplusage, and the habendum 4 T. R. 231. In Spyve v. Top- prevail. ham, 3 East. 1 1 4, where lands (a;) Turnam v. Cooper, Cro. Jao. were granted by deeds of lease 476, Co. Litt. 21 a. and release to J. T., his heirs and {y) Leases for lives may now assigns, to hold the same unto G. commence in futuro. See ante, B., his heirs and assigns, to the p. 35 n. (a). Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 95 or " next," or " last past," the lease was held to be void {z). But the commencement of the term may be fixed by reference to a contingency which must happen, although the time when it arises is uncer- tain (a). Thus a term may be created to commence on the death of lives in being (b), or on the determina- tion of a subsisting term of years (c) ; and if the sub- sisting term be surrendered or forfeited, the second term will commence immediately (i^). Neither is it necessary that the day of the commencement of the term should be expressly stated. Thus if a lease be made for so many years as J. S. shall name, then as soon as J. S. names the term, this ascertains as well the commencement as the duration (e). In general, where the lease is by deed, and the time at which the term is to commence is not stated, the term commences from the delivery. So if no time of computation is mentioned, or the lease is to begin from the date, where there is no date, or from an im- possible date (/), or from the end of a supposed former lease, where there is no such instrument, the com- mencement of the term will be reckoned from the delivery of the deed {g). The date of the deed is prima facie the date of its delivery, but it may be (2) Anon. 1 Mod. 180 ; Bac. (e) Co. Litt. 45 b ; 6 Co. 35 a. Abr. Lease (L). (f) In Chapman v. Beecham, (a) Shep. Touch. 100, 272. 3 Q. B. 723, a deed having been (5) Bac. Abr. Lease (K) ; Good- made in the month of August in right V. Richardson, 3 T. R. 463 ; a leap-year, the words " 29th Clarke *. Sydenham, Yelv. 85, February then next ensuing," Brownl. 136. were construed to mean the 29th (c) Lord Paget's case, 1 Leon. February in the next leap-year. 199 ; Smith t-. Day, 2 M. & W. {g) Higham v. Cooke, 4 Leon. 684; Blatohford v. Cole, 5 C. B. 144, Co. Litt. 46 b ; Amitt v. N.S. 614 ; Doe d Agar «. Brown, Breame, 1 Salk. 76; Taylor «. 2 E. & B. 331 ; Enys 0. Donni- Fitzgerald, 2 Keb. 796; Bassett thorne, 2 Burr. 1190; Moore v. v. Lewis, 1 Ley. 77; Foote v. Musgrove, Hob. 18. Berkley, 1 Lev. 235 ; Miller v. (d) Co. Litt. 45 b ; Plowd. 198. Maiuwaring, "W. Jones, 354. Digitized by Microsoft® CEEATION OF TENANCY. [PART I. shown that a lease was delivered on a day different from the day on which it bears the date ; as where a lease was dated the 25th March 1783, and there being evidence to show that the lease was not executed till some time afterward, and the habendum was from the 25th March " now last past," the Court held that the term commenced from the 25th March 1783 (Ji). But although deeds take effect from the time at which they are delivered, and not from the day on which they are dated, yet if a reference is made in the lease to the date of the lease ^ e.g., 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 delivered (2). Thus if a lease be dated the 1st of December, and be granted to commence " from henceforth," and be sealed and delivered on the 12th December, the lease in contem- plation of law commences from the 1st of December (;). If the holding is from a feast day, e.g., from Michaelmas, parol evidence is not admissible to show that a holding from Old Michaelmas was intended (k). A term to commence from the date, or from the mak- ing, will be construed to include or exclude that day, according to the context and subject-matter, and in order to carry out the intention of the parties (J). Leases for lives, as well as leases for terms of years, may now be made to commence from a day that is passed, or from a day to come, as well as from the (h) Steele -o. Mart, 4 B. & C. Doe d. Darlington v. Ulph, 13 Q. 272. B. 204. (i) Shep. Touch. 108 ; Haths (j) Llewlyn v. Williams, Cro. V. Ash, 1 Ld. Raym. 84; Doe d. Jac. 268. Cox V. Day, 10 East. 427 ; Styles (h) Doe v. Lea, 11 East. 312. V. Wardle, 4 B. & C. 908 ; Steele (I) Pugh v. Duke of Leeds, ■D. Mart, 4 B. & C. 272; Cooper Cowp. 714; Acklaud w. Letley, 9 ■li. Robinson, 10 M. & W. 694 ; A. & E. 879. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 97 day of the making of the lease. The word term may signiiy either the time or the estate, limited by the demise, and it is a question of construction in what sense the word is used ; and a lease may be so worded as to run from one date in point of computation, and from another in point of interest. Thus a lease for ten years from the 1st January last will begin in interest from the day of making, but in computation from last January; or a lease for ten years from the day of the date, but which is not to commence till the expiration of a subsisting lease for five years, will begin in computation from the date, but in interest from the expiration of the subsisting lease (m). So where a tenant entered before the execution of the lease, and had pulled down buildings, it was held that he was not liable for those acts in the covenant to repair contained in the subsequently executed lease, although the habendum referred to a period anterior to the acts complained ot(n). In general a letting by parol commences, where there is no evidence to the contrary, from the day of the tenant's entering (o). But where a tenant entered on the 21st November, which was the middle of the quarter, and at Christmas, the end of that quarter, paid his rent for that half quarter, and afterwards continued to pay rent half-yearly at Midsummer and Christmas, the tenancy was held to commence at Christmas (jo). Where a tenant entered in the middle of a quarter, upon an agreement to pay rent " quarterly, and for the half quarter," the jury, under (m)Eiiys t).Donnithoriie,2BuiT. (n) Shaw ?). Kay, 1 Exch. 412. 1190 ; Jervis v. Tomkinson, 1 H. (o) Kemp v. Derret, 3 Camp. & N. 195 ; Lewis v. Hilliard, 1 Sid. 609. 374; Wyburdj). Tuck, 1 B. &P. {p) Doe d. Holcomb u. John- 464; Dinsdale o. Islea, 1 Keb. son, 6 Esp. 10. 207. Digitized by Microsoft® 98 CREATION OF TENANCY. [PAET I. the judge's direction, found that the tenancy com- menced from the quarter-day preceding the entry (^). In Doe d. Savage v. Stapleton (r), the tenant entered on the 1st August (the half quarter) ; at Michaelmas he paid the half quarter's rent. He afterwards paid rent on the usual feast days, and became tenant from year to year. The landlord gave a notice to quit, ex- piring with the half quarter. It was held not to be a necessary inference that the tenancy from year to year commenced at the half quarter, the landlord after- wards giving a notice to quit at Michaelmas. Where a lease is determined, and the tenant or his assignee holds over with the lessor's consent, he holds over as tenant from year to year on the terms reserved in the lease. The tenancy from year to year commences from the commencement of the lease (s). Duiation of The extent and duration of the term in a lease, or tilt* "t'pT'm * in any agreement for a lease (i), should be ascertained with certainty, either by the express limitation of the parties, or as in the case of the commencement, by reference to some collateral or extrinsic circumstance which may with equal certainty fix its duration {u). As if a lease be made for so many years as A shall live, no certain number of years being named, the lease, as for a term, will be void. So if the parson of Dale make a lease for so many years as he shall be parson there, this is void, because it cannot be rendered cer- tain. So if the lease be for years till A be promoted to a benefice (»). But although in these cases the de- (g) Doed. Wadmorej). Selwyn, v. Fitzmaurice (in error), 8 E. & Hil. T. 1807 ; Adam's Ejec. 107, B. 664, 27 L. J. Q. B. 143 ; Clinan 4th edition. ?■. Cooke, 1 Soh. & Lef. 22 ; (r) 3 C. & P. 275. Clarke v. Fuller, 16 C. B. N.S. (s) Doe d. Castleton v. Samuel, 24. 5 Esp. 173. (m) Bac. Abr. Leases (L), 3. (<) 29 Car. II. ^. 3, o. 4 ; Bayley {o) Ibid. Shep. Touch. 275. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 99 mises, as leases for years, may be void (w), yet they may operate as leases at will, or from year to year, and may be given in evidence as proof of the rent and other terms on which the lands are held. If a man make a lease for twenty years, if A so long live, or if A be parson of Dale for so long, here, as the term is defined, the lease is good, although liable to be determined upon the death of A, in the one case, or his ceasing to be parson, in the other (a;). So if A have a piece of land of the value of £20 per ' annum, and make a lease of it to B, until he shall levy out of the profits thereof £100, this is void as a lease for years. But if A have a rent-charge of £20 per annum, and let it to B, until he shall have levied £100, this is a good lease for five years (y). And if a lease be made to A for so many years as A hath in the manor of Dale, and A have then a lease for ten years in that manor, this circumstance ascer- tains the term intended to be granted, and the lease will be good for ten years {z). So if a lease be made during the minority of J. S., or until J. S. shall come to the age of twenty-one, this is a good lease; for a reference to the age of J. S. wUl reduce the term to a certainty. But if a lease be made to A, till a child in ventre sa mere shall come to the age of twenty-one years, this is void (a). The duration of the term may be either for a life or lives in being, or for years, or for any less period of time, either absolutely, or it may be determinable upon some contingency, such, for instance, as the expiration of a life or lives in being {b). But sometimes a lease is made without any limitation in respect of time. (w) 6 Co. 36. (z) Ibid. Ix) Shep. Touch. 274, 275. (a) Ibid, y Ibid. (h) Shep. Touch. 274, 275. A Digitized by Microsoft® 100 CREATION OF TENANCY. [PART I. Where a lease is made by deed, and there are no express words limiting the duration of the term, the lessee takes an estate for his own life where the lessor is competent to grant such an interest (c). If the lease is by parol, and no term is specified, the lessee will be tenant at will {d), and he may, by payment of rent, or other circumstances, become tenant from year to year {e). A lease for years, without any number being stated, is a lease for two years certain (_/). A lease for one year certain, and so on from year to year, will create a tenancy for two years at the least (y). So a lease for the term of six months, and so on for six months to six months until six calendar months' notice is given, the first payment of rent to be on the 1st of July, is a tenancy for a year (Ji). Where a lease of lands was granted to another for ten years certain, and if at the end of every ten years the lessee should pay a certain quantity of tiles, he should have a perpetual demise of the land from ten years to ten years con- tinually following, this was held a good lease for ten years only, but bad as to the rest for uncertainty {i). A lease for such a term as both parties please, is but a lease at will (_;'). lease for ninety-nine years, if A infra, Tenancy at Will, p. and B so long live, is determin- 101. able by the death of A or B. A (/) Bao. Abr. Leases (L), 3. lease for ninety-nine years, if A (jr) Doe d. Chadborn v. Green, or B so long live, lasts till the 9 A. & E. 658 ; Doe d. Monek v. death of the survivor. Lord Geeckie, 5 Q. 33. 845. Vaux's case, Cro. Eliz. 269. See (A) Reg. v. Chawton, 1 Q. B. the judgment in Elliot v. Turner, 247 ; Simpson v. Margitson, 11 Q. 2 C. B. 461 ; Mortimer v. Hartley, B. 23. 6 Ex. 60. (j) Say v. Smith, Plowd. 271. (c) Co. Litt. 42 a;8&9Vict. (j) Bao. Abr. Leases (L), 3; c. 106, s. 3. Richardson v. Langridge, 7 Taunt. (d) See infra, Tenancy at 128. As to the effect of provisions Will, p. 101. with respect to notices to quit, see (e) See mpi-a, p. 48, and infra. Part 3, o. 4, Notice to Quit. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 101 A tenancy at will is a holding {k) by the express or Tenancy at implied consent of the owner, without raising any ^^ " obligation on the part of either landlord or tenant to continue the tenancy for any certain term (l). A tenancy at will may be created by express agree- ment (m). Thus, in Doe d. Bastow v. Cox (n), A agreed to become tenant to C and D of certain pre- mises at their will and pleasure, at certain rent payable quarterly. A remained in possession under this agreement two years and a half, and paid a year's rent; it was held that A was tenant at will. A tenancy at will is implied where a constructive tenancy from year to year would be inconsistent with the nature of the transaction, or would defeat the object of the parties. A demise for years, with a proviso that the lessor may enter at his will, is only a lease at will (o). A person put into possession of lands in which he has no freehold estate or tenancy for any certain term, under an executory agreement or accepted proposal for a future lease at a yearly rent, is only tenant at will prior to the payment of rent, or prior to any other act done from which a tenancy from year to year can be inferred ( jd) ; because the agreement for a future lease (Tc) Co. Litt. 55 a. See the (o) Skarburg v. Pevenet, 21 judgment of Byles, J., in White v. Hen. VI. fol. 37 b, Year Book ; Bailey, 30 L. J. C. P. 256. Turner v. Hodges, Litt. 235, by (I) i)oe d. Bennett v. Turner, Yelverton. 7 M. & W. 226 ; Turner v. Doe d. (p) Fenny d. Eastham v. Child, Bennett, 9 M. & W. 643 ; Com. 2 M. & S. 555 ; Hamerton v. Dig. tit. Estate (H), 1 ; Richard- Stead, 3 B. & C. 483, per Little- son V. Langridge, i Taunt. dale, J. ; Richardson v. Gifford, 1 128. A. & E. 52 ; Doidge v. Bowers, 2 (m) Ball V. CuUimore, 5 Tyrwh. M. & W. 365 ; Bickuell v. Hood, 753 ; Richardson v. Langridge, i 6 M. & W. 108 ; Rex v. CoUett, Taunt. 128 ; Cudlip D. Rundle, 4 R. & M. 498 ; Rex v. JobUng, Id. Mod. 9 ; R. V. Fillongley, Cald. 625 ; Doe d. Groves v. Groves, 10 569. See Marquis of Camden v. Q. B. 498 ; Doed. Hull v. "Wood, Batterbury, 5 C. B. N.S. 608. 14 M. & W. 682. See the notes (») 11 Q. B. 122, to Clayton v. Blakey, 2 Smith's Digitized by Microsoft® 102 CREATION OF TENANCY. [PAET I. does not confer any legal estate, and the tenancy at will created by putting the party in possession has no relation to the reserved rent; but after payment of any portion of the stipulated rent or other recognition of holding under such contract, a constructive tenancy frona year to year is implied, subject to the terms of the agreement. If a person enter into possession of lands with the owner's consent or privity, pending a treaty for purchase or for a lease, a tenancy at will arises (§'). If a person enter into or continue in possession of land, with the consent or privity of the owner, or if the owner recognise a person as having lawful occupa- tion, or if the occupier be exempted from the conse- quences of a trespass by an implied license, he is tenant at will to the owner (r). A mortgagor in possession has often been called tenant at will to the mortgagee, but this relationship is perfectly anomalous and sui generis ; there is no actual tenancy, for the mortgagor has not even the rights of a tenant at will, since he may be turned out of possession without notice to quit or demand of possession, and is not entitled to emblements (s). But a tenancy at will may, by express L. C. 97 ; Doe d. Jones 11. Jones, Doe d. Bord v. Burton, 16 Q. B. 10 B. & C. 178 ; Doe d. NichoUs v. 807 ; Doe d. Hiatt v. Miller, 5 C. M'Kaeg, 10 B. & C. 721; Rex u & P. 595 ; In re Banks v. Reb- Lakenkeath, 1 B. & C. 631 ; Res beck, 2 Low. M. & P. 452 ; Saun- V. Fillongley, 1 T. Rr 458 ; Doe d. ders v. Musgrave, 6 B. & C. 524 ; Hughes V. Derry, 7 C. & P. 494 ; Anderson v. Midland Railway Co. Doe A Price J). Price, 5 Bing. 356. 30 L. J. Q. B. 94. But see Deed (2) Right d. Lewis v. Beard, Rogers v. PuUeu, 2 Bing. N. C. 13 East. 210 ; Doe d. Newby v. 749 ; Doe d. Parker v. Boulton, 6 Jackson, 1 B. & C. 448 ; Ball v. M. & S. 148 ; Tew v. Jones, 13 CuUimore, 2 Cr. M. & R. 120 ; M. & W. 12. Doe d. Gray v, Stanion, 1 & M. {r) Doe d. Price v. Price, 9 W. 695 ; Kirtland v. Pounsett, Bing. 356 ; Doe d. Whitaker v. 2 Taunt. 145 ; Hope v. Booth, 1 Hales, 7 Bing. 322, 323, 326 ; Doe B. & Ad. 498 ; Doe d. Milburn v. d. Foley v. Wilson, 11 East. 57. Edgar, 2 Bing. N. 0. 498 ; Win- Seepost 8, License, terbottom v. Ingham, 7 Q. B. (s) Christopher v. Sparke, 2 611 ; Doe d. Stanway v. Rock, 4 Jac. & W. 234, by Sir Thomas M. & Qr. 30 ; Doe d. Tomes v. Plumer ; Wilson ex parte, 2 Ves. Chamberlaiue, 5 M. & W. 14 ; & B. 252 ; Lord Cholmondeley v. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 103 agreement, be created between a mortgagee and mort- gagor (t). The notion of a mortgagor being in some cases tenant at will seems to be recognised by 3 & 4 Will. rV., c. 27, s. 7, which provides that no mort- gagor shall be deemed to be a tenant at will to the mortgagee within the meaning of that clause. On the whole, it seems more correct to say that a mortgagor in possession is a tenant at sufferance only (u), or at most a quasi tenant at will, and he may be treated either as a tenant or trespasser at the election of the mortgagee. Therefore, where the mortgagor remains in possession, and the money is not repaid on the day stipulated, the mortgagee may eject the mortgagor without notice to quit or demand of possession ; there- upon the mortgagee will be entitled to recover, together with the land, all the growing crops, fixtures, &c., in respect whereof the mortgagor will not be entitled to any compensation (v). The peculiarity of this holding (tenancy at will) is that any act committed by either landlord or tenant inconsistent with its nature determines it, since the Lord Clinton, 2 Jao. & W. 182 ; Whitaker r. Hales, 7 Bing. 322 ; Hitchman v. Walton, 4 M. & W. Doe d. Wilkinson v. Goodier, 10 413; Doe d. Higginbotham v. Q. B. 957 ; Doe rf. Snell «. Tom, Barton, 11 A. &. E. 307 ; Doe d. i Q. B. '615 ; West v. Fritchie, Roby V. Maisey, 8 B. & C. 767 ; 3 Ex. 216 ; Morton v. Woods, 37 Doe d. Fisher v. Giles, 5 Bing. L. J. Q. B. 242. 421. See also the judgment of (it) As to Tenancy at Suffer- BuUer, J., in Birch v. Wright, 1 ance, see post, 8 License. T. R. 382, 383 ; Moss v. Galli- {v) Woodfall, " Landlord and more, 1 Smith's L. C. 542, judg- Tenant,"p. 189, 10th ed. ; Thunder raent of Ashurst, J. ; see Coote d. Weaver v. Belcher, 3 East. 499 ; on Mortgages, 319-24. Doe d. Roby v. Maisey, 8 B. & C. («) Doe d. Basto v. Cox, 11 Q. 767 ; Doe d. Fisher v. Giles, 5 B. 112; Doe d. Dixie v. Davies, Bing. 421 ; Walmesley v. Milne, 7 Ex. 89 ; Pinhorn v. Souster, 8 7 C. B. N.S. 115, 133 ; Reach v. Ex. 763. See also Metropolitan Hall, 1 Dougl. 21 ; Metropolitan Assurance Co. ■;;. Brown, 4 H. & Assurance Co. v. Brown, 4 H. & N. N. 428 ; Doe d. Rogers v. Cad- 428. waller, 2 B. & Ad. 473 ; Doe d. Digitized by Microsoft® 104 CEEATION OF TENANCY. [part tenancy exists during the joint will of both parties (w). Thus in Doe d. Bennett v. Turner (x), the landlord had entered on the premises and cut some stone with- out the permission of his tenant at will. This act was held to operate as a determination of the tenancy. So, too, the death of either party determines the ten- ancy (y) ; but on the death of one of several lessors, the demise being joint, the interest survives (;?). Thus acts of ownership inconsistent with the tenancy, exercised by either landlord or tenant on the land (a), or off the land, if the other party have notice thereof — as, for instance, alienation of the reversion with notice to the tenant, or assignment or underlease with notice to the landlord (i^) — will determine the tenancy. The tenancy at will may also be determined by a demand of possession or express declaration of either of the parties (c). Strict tenancies at will having been found incon- venient, leases for one year, and so from year to year, {w) Co. Litt. 55 a, 68 ; Com. Dig. tit. Estate {H G). (x) 7 M. & W. 226, 6^3. See also Doe d. Price v. Price, 9 Bing. 356. (y) Crockerell v. Owerell, Holt, 417 ; Doe d. Lewis v. Lord Cawdor, 1 Cr. M. & R. 398 ; Co. Litt. 62 b. (z) Henstead's case, 5 Rep. 10. {a) See the judgment of Lord Denman in Doe d. Bennett v. Turner, 9 M. & W. 6i6 ; Doe d. Moore v. Lawdor, 1 Starkie R. 308 ; Pinhorn v. Souater, 8 Ex. 763 ; Carpenter v, CoUins, Yelv. 73. (6) Diadale v. Isles, 2 Lev. 88 ; Ball V. CuUimore, 2 Cr. M. & R. 120 ; Doe d. Goody v. Carter, 9 Q. B. 863. In Doe d. Daviea v. Thomas, 6 Ex. 854, it was held that where a lessor became an in- solvent debtor after the creation of the tenancy at will, the vesting order, with knowledge thereof to the tenant, determined the ten- ancy. Doe d. Jones D.Jones, 10 B. 6 C. 718 ; Goodtitle v. Herbert, 4 T. R. 680 ; Wallis v. Delmar, 29 L. J. Ex. 276 ; Daniels v. Davi- son, 16 Ves. 249 ; Pollen v. Brewer, 7 C. B. N. S. 371 ; notes to Clayton V. Blakey, 2 Smith's L. C. 97, 5th edition ; Melling v. Leake, 16 C. B. 652. See the judgment of Byles, J., in White v. Bailey, 10 C. B. N.S. 227; Co. Litt. 55 b, note 15. (c) Doe d. BastowK. Cox, 11 Q. B. 122 ; Doe d. Price v. Price, 9 Bing. 356 ; Locke v. Matthews, 13 C. B. N.S. 753. Digitized by Microsoft® CH. IV. J HOW DEMISES AKE MADE. 105 as long as both parties pleased, were introduced in the reign of Henry VIII., and such a lease was binding for two years certain ; but prior to the reign of Geo. III. such tenancies could only have been constituted by express contract. Lord Mansfield, however, soon after he became Chief-Justice, established the present system of tenancies from year to year, determinable at the end of any year on giving six months' previous notice, and extended the principles applicable to such holdings to every tenancy which could afford reason- able ground for the inference (d). The chief fact from which the inference is generally made that the parties intended to create a tenancy from year to year, is the payment of a yearly rent. So it is now settled that if a party enter into, or continue in possession of lands, under circumstances which would constitute him tenant at will, the payment of a yearly rent, or settlement of it in account with his landlord, renders him tenant from year to year (e). A tendency from year to year is a lease for a year certain, with' a growing interest during every year thereafter, spring- ing out of the original contract and parcel of it (/). If a party enter into possession under an executory agreement, or accepted proposal for a lease at a yearly rent, after receipt of rent, a tenancy from year to year will be inferred upon the terms of the intended lease, so far as they are applicable to such a tenancy (y). (d) Agard v. King, Cro. Eliz. Morse, 1 B. & Ad. 365 ; Berrey v. 775; Dean d. Joeklin v. Cart- Lindley, 3 M. & G. 498; Lee v. Wright, 4 East. 31 ; Timmins v. Smith, 9 Ex. 662. See ante, p. Eowlinson, 3 Burr. 1603 ; Gulliver 48, 101, Effect of Non-compliance d. Tasker v. Burr, 1 W. Bla. 1171 ; with Statute of Frauds. Rightd Flower t!. Darby, IT. R. (/) Oxley v. James, 13 M. & 159 ; Doe d. Shore v. Porter, 3 T. W. 214. E. 13. ^ (ff) Seea)i. Gower, 17 Q. N.S. 788 ; Doed. Kingti. Grafton, B. 589 ; Wilkinson v. Hall, 3 18 Q. B. 496 ; Doe d. Bastow v. Bing. N. C. 508 ; Monks w. Dykes, Cox, 11 Q. B. 122 ; Doe d. Dixie 4 M. & Vf. 507. V. Davies, 7 Ex. 89. {h) Wilson V. Abbott, 3 B. & Digitized by Microsoft® CH. IV.J HOW DEMISES AEE MADE. 107 tenancy {m), by a remainderman, does not confirm the lease, btit creates an implied tenancy from year to year, upon ^the terms of the old lease, so far as they are consistent with such a holding (n). A general letting at a yearly rent, though payable quarterly, or an acceptance of a yearly rent, or rent measured by any aliquot part of a year, is evi- dence of a taking from year to year (o). Thus where premises were let at a yearly rent, payable weekly, with power to determine the tenancy at three months' notice from any quarter-day, it was held that a yearly tenancy was created determinable as agreed {p). But where houses or lodgings are let for an uncertain period, at a quarterly, monthly, or weekly rent, a quarterly, monthly, or weekly tenancy is usually pre- sumed {g). Sometimes the lease is for a certain number of Option to years, determiaable sooner at the election of the parties "determine. or one of them. "Where the option is given expressly to each party, no difficulty can arise, and the term may be determined by either (r). A lease for twenty- one years, expressed "to be determinable, neverthe- less, in seven or fom-teen years, if the parties shall think fit," is determinable only by consent of both the (m) 14 & 15 Viet. c. 25, s. 1. C. 508 ; Kemp r. Derrett, 3 Camp. (n) Doe d. Martin v. Watts, 7 510 ; Huffel v. Armistead, 7 C. & T. R. 85 ; Doe d. Tucker v. Morse, P. 56 ; Doe d. Landaell v. Gower, 1 B. & Ad. 365. 17 Q. B. 589 ; Towne v. Camp- (o) Richardson v. Langridge, 4 bell, 3 C. B. 921 ; Doe d. King v. Taunt. 128 ; Doed. Hallf. Wood, Grafton, 18 Q. B. 496 ; Wilson v. 14 M. & W. 682 ; Rex v Herat- Abbott, 3 B. & C. 88 ; Monks v. moneeaux, 7 B. & C. 551. Dykes, 4 M. & W. 567. {p) Eext). Herstmonceaux, 7 B. (»■) Goodright v. Mark, 4 M. & & C. 551. See Doe d. Pitcher v. S. 30 ; Bird v. Baker, 1 E. & E. Donovan, 1 Taunt. 555 ; Brown 12 ; Roe d. Bainford v. Hayley, V. Burtindshaw, 7 D. & R. 603. 12 East. 464. (q) WOkinson v. Hall, 3 Bing. N. Digitized by Microsoft® 108 CEEATION OF TENANCY. [PART I. parties (s). Where the instrument is silent as to the party who is to exercise the right to determine, the lessee only has the option of determining the lease at the specified time, on the principle that where the words of a grant are doubtful, they must be construed most strongly in favour of the grantee {(). 6. Reddendum. The reddendum is that part of the lease by which the rent is reserved. No particular form of words is necessary, but the words "reserving," "rendering," " yielding," paying," &c., are the words usually em- ployed. The office of the reddendum is to define what rent shall be paid, to whom it shall be paid, at what time it shall be paid, how it shall be paid, and where it shall be paid. From what The distinctions which existed at common law be rent may twccn rent-scrvices, rent-seek, and rent-charges, are now usually of little practical importance (m). Rent may be defined to be a certain return made by the tenant, either in labour, money, or provisions, for the estate demised to him ; and, as a general rule, the rent must issue out of lands and corporeal tenements, as part of their actual or possible profits, and be payable issue. (s) Fowell V. Tranter, 34 L. J. Governors of Christ's Hospital i). Ex. 6. ^ Harrild, 2 M. & Gr. 713. Eent- (i) Dann v. Spurrier, 3 B. & P. service is a rent reserved upon a 899 ; Price v. Dyer, 17 Ves. 356 ; grant or lease of lands as inoi- Doe V. Dixou, 9 East. 15. See dental to their tenure. Rent- Goodright v. Richardson, 3 T. charge is a rent granted out of R. 462. lauds by the owner to some other (m) See infra, Part 2, c. 2, s. person with a clause of distress. 2, Distress ; Bac. Abr. tit. Kent Rent-seek is a rent-charge with- (A), 1-3 ; Co. Litt. 87 b, 143 out clause of distress. Bac. Abr. b; Bradbury!). Wright, 2 Dougl. Rent (A). 624; Judgment of BuUer, J., The Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 109 at fixed intervals during the tenancy (»). It is not necessary that the return should be in money, for the reservation may be the delivery of horses, capons, roses, spurs, wheat, or the like {w) ; or it may consist of the personal services of the lessee, in labouring or journeying for the lessor at certain stipulated times (x) ; as, for instance, to plough so many acres of land, to clean the parish church, or to ring the church bell at stated times (y). The rent reserved, however, must be certain, the Nature of quantum or amount being either expressly stated with '^™'' certainty, or becoming so by reference to something else that can be certainly ascertained (^r). Where, therefore, a man demised at will, reddendum after the rate of 18 per annum, as long as the demise shall continue, the reservation was held bad for uncertainty, for it might be in corn, or any other thing of value, and as no time was limited for the payment of it, an action might be brought every day for it (a). Where a marl-pit and brick-mine were demised (5), the tenant agreeing to pay so much a quarter for every yard of marl that he might get out, and Is. 8d. per thousand for all the bricks that he might make ; it was held that this reservation was suffi- ciently certain. If the reservation be of so many quarters of corn (c), it will be understood to mean (d) Burton's Real Property, d. Jaoklin n. Cartwright, 4 East, pp. 830, 331 ; Gilbert on Rents, 31. p. 9 ; Co. Litt. 47 a, ] 41 b, 142 a. (a) Parker v. Harris, 1 Salk. (w) Co. Litt. 142 a. 262. (x) Lanyon v. Carne, 2 Saund. (h) Daniel v. Garcie, 6 Q. B. 165. 145. See judgment o£ Lord Den- {y) Doe d. Edney v, Benham, man in R. v. Westbrook, 10 Q. B. 7 Q. B. 907 ; Doe d. Edney v. 205 ; Co. Litt. 96 a. Billett, 7 Q. B. 967. See also Doe (c) A restriction occurs with d. Robinson v. Hinde, 2 M. & regard to college leases created Rob. 441, and the Duke of Marl- by statute, 18 Eliz. u. 6, by which borough V. Osborn, 5 B. & S. 67. it is directed that one third of the (s) Co. Litt. 96 a. See Dean old rent then paid should for the Digitized by Microsoft® 110 CREATION OF TENANCY. [PART I. legal quarters, reckoning the bushel at eight gal- lons, although leases of the same lands prior to the 23 & 23 Car. II., c. 12, contained the same reservation, and the lessees had been accustomed to pay by composition, reckoning the bushel as nine gallons (d). A reservation of eight bushels of grain in lieu of one quarter is good, because it is all one in quality, value, and nature (e). In a lease of land for twenty-one years, from the 25th March 1848, it was covenanted that the lessee should pay a stipulated sum for the &st year, with a proviso that the rent for each subsequent year of the term should be reduced or increased according to the " average price of wheat in any one year of the said term," such average " to be taken and ascertained from the then current year's averages, which were taken in the month of January in every year, under and by virtue of the Tithe Com- mutation Act, 6 & 7 Will. IV., c. 71, s. 56," which was the result of the sales " during the seven years end- ing on the Thursday next before Christmas-day then next preceding ; " it was held that the rent might be computed according to such septennial average so published in each year {/). future be reserved in wheat or found America, devised this me- malt, reserving a quarter of wheat thod for upholding the revenue for each 6s. 8d,, or a quarter of of colleges. Their foresight and malt for every 6s. ; or that the penetration have in this respect lessees should pay the same ac- been very apparent. The corn cording to the price that wheat rent has made the old rent ap- or malt should be sold for in the proach in some degree nearer to market next adjoining to the re- its. present value; otherwise it spective colleges on the market- would seem that the principal ad- day before the rent became due. vantage of a corn rent is to secure This sagacious plan is said to have the lessor from the eifect of a sud- been the invention of Lord-Trea- den scarcity of corn. 2 Blac. Com. surer Burleigh and Sir Thomas 322. Smith, then principal Secretary (tZ) The Master, &o. of St Cross w. of State, who, observing how Lord Howard de Walden, 6 T. K. greatly tlie value of money had 338. sunk, and the price of all provi- («) Mountjoy'scase,5Co.R. 3 b. eions risen, by the quantity of (/) Kendall v. Baker, 11 C. B. bullion imported from the newly- 482. Digitized by Microsoft® CH. IV.j HOW DEMISES ARE MADE. Ill The rent must consist in sometliing issuing out of the thing demised, though differing from it in nature; for if it be part of the thing itself, that would not be a reservation, but an exception (^). Thus, it is said — " If one grant land yielding for rent, money, corn, horse, spurs, or a rose, or any such like thing, this is a good reservation ; but if the reservation be of the grass, or of the vesture of the land, or of a common, or other profit, to be taken out of the land, these reservations are void (K). A royalty payable by the tenant upon the bricks which are made out of the land demised is a rent {i). In the case of a demise of mines, the rent reserved may, it seems, consist of a portion of the ore, which is the sub- stance of the land itself (_;'). The rent, as a general rule, must issue out of lands and such things as are capable of livery, and may be distrained upon (/s). Thus a rent cannot issue out of a demise of an incorporeal hereditament, nor of goods ; but a reservation in such a case may be binding on the parties as a contract. A rent reserved upon a lease of a future interest in land is good, for although the lessor cannot distrain during the continuance of the particular estate, yet there is a possibility of his doing so on its determination. A lease of the vesture or herbage of land reserving rent is good, as the lessor may come on the land and dis- train the lessee's beast (J). The Crown, too, may reserve rent on a demise of an incorporeal heredita- ment, because by its prerogative a distress may be (ji) See ante, Exceptions from 740 ; Buckley i). Keuyon, 10 East. Demise, p. 89 ; ] Inst. 47 a. 139 ; K. v. Earl of Pomfret, 5 M. (h) Shephard's Touch, p. 80. & S. 139 ; but see R. v. The In- See also Doe c?. Douglas v. Lock, habitants of St Austell, 5 B. & A. 2 A. & E. Hi ; Brooke's Abr. tit. 693. Reservations, pi. 46; Co.Litt. 47 a. (i) Co. Litt. 47 a, 142 a ; Bao. (i) Reg. V. Westbrook, 10 Q. B. Abr. tit. Rent (B) ; Williams v. 178. Hayward, 28 L. J. Q. B. 374. (j) Campbell c. Leach, Anst. (I) Co. Litt. 47, 142 a. Digitized by Microsoft® 112 CREATION OF TENANCY. [PART I. levied on all tlie lands of the lessee (m). It is a general rule that where rent is nominally reserved out of two things, one of which is capable of supporting a rent and the other not, it will be taken to issue wholly out of the former (n). Thus in Spencer's case (o), where a house and land, with a stock or sum of money, was demised, rendering rent, it was held that the rent issued out of the land only. But although the rent issues in these cases only out of the corporeal heredita- ment in point of remedy, it is considered to issue out of both in point of render (j>). Thus in Gardiner v. Williamson (q) , A, by instrument not under seal, agreed to let to B the rectory of L, and the tithes arising from the lands in the parish of L, and also a mes- suage used as a homestead for collecting the tithes, at the yearly rent of £200 ; it was held that as the agree- ment, not being under seal, did not operate as a demise of the tithes, the rent could not be distrained for, as there was no distinct rent reserved for the homestead. Where a lessee simply covenants or promises to pay a certain sum yearly, without stating it as a con- sideration for the demise of the premises, it will not be a rent, but a sum in gross, to the payment of which he will be liable by reason only of his contract (r). Thus in Hoby v. Roebiick (s), where a lessee agreed to pay his lessor annually during the residue of the lessee's term, ten per cent, on the cost of new build- ings if the lessor would erect them ; it was held that (m) Bao. Abr. tit. Rent (B). WilliamsoD, 2 B. & Ad. 336 ; (n) Newman v. Anderton, 2 N. Bird v. Higginson, 2 A. & E. 696, E. 224 ; Salmon v. Matthews, 8 6 A. & E. 824 ; Meggison v. M. & W. 827 ; Farewell v. Dicken- Bowers, 21 L. J. Ex. 284. son, 6 B. & C. 251. (j) 2 B. & Ad. 336. (o) 6 Rep. 16. (r) Smith v. Mapelbach, 1 T. R. (p) Dean of Windsor r. Gover, 441. 2 Wm. Saunds. 303 ; Gardiner v. (s) 7 Taunt. 1S7. Digitized by Microsoft® CH. IV.] HOW DEMISES AKE MADE. 113 this sum could not be distrained for as rent. So in Donellan v. Eead {£), where a lessor demised premises for a term of years at £50 a year, and agreed with his tenant to lay out £50 in making certain improyements upon them, the tenant undertaking to pay him an increased rent of £5 a year during the term ; it was held that this sum of £5 was not a rent in a legal sense of the word. If a person enters on and occu- pies the premises of another, hut there is no demise, express or implied, he will be liable, not for rent, but for such sum as may be deemed a reasonable satisfac- tion to the owner of the premises for the use and occupation thereof (u). Rent, being incident to the reversion, will follow that reversion. Rent therefore should be reserved to the lessor, and not to a third party (v). Thus where a man seised in fee leases for life or years reserving rent, the whole rent which becomes due after his death goes Vith the reversion (as an incident thereof) to the heir, and not to the executor ; for since, during the continuance of the parti- cular estate, the reversioner loses the profits of the land, the rent ought to be paid to him as a compensa- tion for the loss (w). Where there is any doubt as to the person to whom the reservation should be made, the clearest and safest way is to reserve the rent gene- rally during the term, without saying to whom, and leave it to be distributed by the law in the mode pointed out in Whitlock's case {x) ; for if the re- (t) 3 B. & Ad. 899. See also (w) Co. Litt. 47 a; Cother v. Lambert v. Norris, 2 M. & W. Merrick, Hard. 95 ; Bao. Abr. 333 ; Marquis of Camden v. Bat- Executors (H), 3 ; Gates v. Frith, terbury, 7 C. B. N.S. 804. Hob. 130 ; Sacheverell t>. Froggat, (u) Salmon v. Matthews, 8 M. 2 Saund. ; Southampton v. Brown, & W. 833 ; Dunk ii. Hunter, 5 B. 6 B. & C. 718. But a reservation & A. 325 ; Hegan v. Johnson, 2 of rent to a third party is binding Taunt. 148. as a, contract. Jewel's case, 5 (d) Co. Litt. 47 b, 143 b ; Com. Rep. 3. Dig. tit. Rent (B), 5. (x) 8 Co. Rep. 70, 141. H Digitized by Microsoft® 114 CREATION OF TENANCY. [PART I. servation of rent be general during the term, the law directs it to be paid according to the intent and nature of the thing demised (y). Thus if a person seised in fee settles his estate on himself for life, with remainders to other persons, reserving a leasing power, which he afterwards exercises, reserving rent to himself, his heirs, and assigns, those in remainder shall have the rent. So also where a person seised in fee settles his estate on A for life with remainders, and gives him a leasing power, which he exercises, reserving rent during the term, the remainder-men shall take, although neither heirs nor assigns of A (;2;). 7. Covenants. A covenant is an engagement entered into under seal (a), whereby one person binds himself to do some- thing beneficial to another, or to abstain from an act which, if done, would be prejudicial to another (5). The general principle is clear, that the landlord, having the jus disponendi, may annex whatever conditions he pleases to his lease, provided they are not illegal or impossible. A covenant therefore to do a thing which, upon the face of it, appears to be prejudicial to the public interest, or otherwise contrary to law, is ipso facto void (c). Thus if a lease is made for the express purpose of the premises being used to boil oil and tar, (y) Whittome v. Lamb, 12 M. (V) Bac. Abr. tit. Covenants. &W. 813; Dolleni).Batt,27L.J. (c) Shep. Touch. 163; Loweti. C. P. 281. Peers, 4Burr. 2225. By5&6 Vict. (z) Greemvayti.Hart, 23L. J. C. c. 35, s. 103 (Property-Tax Act), P. 115 ; Isherwood v. Oldknow, a covenant for the payment of 3 M. & S. 382. rent in full without allowing a (a) The word " covenant " used deduction for the property-tax, in an agreement not under seal is void. See infra, Part 2, Div. may, in order to eflfectuate the 1, c. 1, s. 3, Deductions; and intention of the parties, be con- see post, Certain Trades, &c., p. strued to mean " contract," or 127. " stipulation." Hayne v. Cum- mings, 16C. B. KS. 421. Digitized by Microsoft® CH. IV.j HOW DEMISES ARE MADE. 115 contrary to the provisions of an Act of Parliament, the covenant for payment of rent is void (o?). If a man covenant to do a thing which to-day is lawful, but to-morrow is by statute made unlawful, the covenant will be thereby extinguished ; or if he covenant not to do a thing, and then a statute is made which com- pels him to do it, the covenant becomes void ; but if he covenant to do that which is afterwards made un- lawful in part only, it must be performed so far as it continues lawful. If a man covenant not to do a thing which is unlawful, and then a statute makes it lawful, the covenant is not thereby repealed ; but if he covenant to do a thing unlawful by statute, the performance of the covenant is not rendered lawful by a repeal of the statute, for the covenant was void in initio (e). But there is nothing to prevent persons, if they so please, from binding themselves by a contract as to any future state of the law, although in general they are to be considered as contracting with reference to the law as it then exists (_/). A covenant to do a thing which is impossible, if the impossibility exists at the time the covenant is made, is void ; but if it be then possible, and afterwards become impossible, the covenantor will still be liable in the express words of his covenant (^.) Where a covenant seems to relate to something which is impossible, the Court will incline to the view that a man did not really warrant to be possible that which was impossible, if a rea- sonable construction suggests itself (>^). Where a (d) The Gas Light Co. u Turner, {g) Shep. Touch. 663; Bh'ght 5 Bing. N. C. 666. v. Page, 3 B. & P. 295, n. (a) ; (e) Brewster v. Kitchell, 1 Barker v. Hodgson, 3 M. & S. Salk. 198; BrasonuDeaD, 3Mod. 267; 1 Eol. Abr. 420, C. 4, 8 ; 39 ; Jaques v. Withy, 1 H. Bl. Appleby v. Myers, L. R. 2 C. P. 65. See the judgment in Baily v. 651; Clifford i). Watts, L. R. 5 C. Crespigny, L. R. 4 Q. B. 185. P. 577 ; 40 L. J. C. P. 36. (^ See judgment of Maule, J., (A) Per WUles, J., Clifford t. in Mayor of Berwick v. Oswald, Watts, supra. 3 E. & B. 665, 23 L. J. Q. B. 324. Digitized by Microsoft® nauts. 116 CEEATION OK TENANCY. [PART I. covenant is dependent upon a conveyance of an estate which proves to be void, and no estate passes, the covenant is void (i). Thus a covenant in a lease to repair during the term is void, where the lessor does not execute the lease (_/). But independent covenants in a lease may be enforced, although no estate passes {K). Covenants are such as either run with the land, or are merely personal. A covenant running with the land is one which affects the nature, quality, or value of the land demised, or the mode of enjoying it independently of collateral circumstances {I). (a.) Express Covenants. Express cove- Express covenants are such as are created by the express words of the parties in a deed declaratory of their intentions ; and in order to constitute such a covenant, the law does not require any precise or technical language. Thus words in the form of an exception or restriction may amount to a covenant (?w). The lease in general contains express covenants by the lessee for the payment of the rent(w), for the payment of taxes, &c. (except the sewers' rate, land and pro- perty taxes), for the repair of the premises during the term, for leaving them at the end of the term in a pro- per state of repair, and for the insurance and rebuild- (i) Capenliurst v. Capenhurst, (Jc) Nortlicote u. Underhill, 1 Sir T. Eaym. 27; Hayne o. Salk. 199. Maltby, 3 T. R. 438. {I) Spencer's case, 5 Rep. 16, (i) Pitman v. Woodbury, 3 1st and 2d Resolutions. See Exoh. 4 ; Linwood v. Squire, 6 infra. Part 4, c. 1, s. 4. Exch. 234 ; Wheatley i). Boyd, 7 (m) The Duke of St Albans v. Exch. 20 ; Swatman v. Ambler, Ellis, 16 East. 352. 8 Exch. 72. Compare these cases (n) A covenant may be inserted with Hughes v. Clarke, 10 C. B. to pay interest on arrears of rent. 905 ; Morgan v. Pike, 14 C. B. Tynte v. Hodge, 2 H. & M. 287. 473 ; Wood v. Copper Miners Co. See note by Mr Cole in Woodfall's 14 C. B. 594 ; Northampton Gas " Landlord and Tenant," 1013, Co. V. Parnell, 15 C. B. 630 ; 9th edit. Bowes V. Croll, 6 E. & B. 255 ; Hew V. Greek, 3 H. & C. 391. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 117 ing of the premises in case of their destruction by fire. The lessee also usually covenants not to assign or underlet without the consent of the lessor, and sometimes not to carry on offensive trades. There is a covenant by the lessor, on the other hand, for quiet enjoyment ; and he not unfrequently covenants to pay some of the rates or assessments, or a portion of them. An express covenant for the payment of rent is payment of inserted in every indenture of lease, and usually binds '■^^*- the lessee, his heirs, executors, administrators, and assigns to its performance. The lessee, and after his death, his personal representatives, having assets, are answerable for the rent during the continuance of the lease. If the covenant expressly include the heirs of the lessee, his real representatives having inherited assets from the ancestor will be chargeable for breach of the covenant, either in the lifetime of the lessee, or after his death. If the lease be assigned, the original lessee continues liable for the rent during the lease, in respect of privity of contract, and his heirs, if named, and his personal representatives, though not named, remain liable, so far as assets have come to their hands. The assignee is also liable for the rent in respect of the privity of estate (o) during Ms ownership. The liability to pay taxes is usually provided for in Payment of the lease. The usual covenant by the tenant is " to *^^^^- pay all rates, taxes, duties, and assessments whatso- ever, whether parochial, parliamentary, or otherwise, now charged, or hereafter to be charged, upon the de- mised premises, or any part thereof, or upon the rent, or any part thereof, except sewers' rates, land-tax, and (o) See infra, Part i, u. 1, s. 4, Covenants Running with the Land. Digitized by Microsoft® 118 CREATION OF TENAKCY. [PART I. property-tax." Sometimes there is an express cove- nant by the landlord to pay the land-tax (jo). If the lessee covenants to pay " all rates, taxes, and assessments," these include the land-tax ; for when taxes are generally mentioned, they must be under- stood to signify parliamentary taxes, if the subject- matter will suffer it, and the lessee would consequently be charged with the payment of all land-taxes, even those imposed by act of Parliament, long after the commencement of the lease, notwithstanding the word " parliament " was not expressed in the covenant (q). In Bradbury v. Wright (r), the tenant covenanted to pay the rent "without any deduction, defalcation, or abatement, for or in any respect whatsoever." Upon this covenant he was held liable to pay the land-tax. A sewer's rate not being directly imposed, i.e., fixed and assessed by act of Parliament, is not a parlia- mentary tax (s). So an improvement rate made by commissioners under a local act is not parochial or parliamentary (t). But it would seem that a county rate is a parochial tax (m). No doubt in Waller v. Andrews (»), where the tenant, by the agreement, was to pay " all outgoings whatsoever, rates, taxes, scots, &c., parliamentary and parochial," it was held that an extraordinary assessment, made by the commis- sioners upon the lands, was within the agreement ; (y) As to the land-tax, see 627. See also infra. Part 2, Div. infra, Part 2, Div. 1, u. 1, o. 3, 1, o. 1, s. 3, Deductions ; Sweet Deductions. ■;;. Seager, 2 C. B. N".S. 189, (5) See Hopwoodt'. Barefoot,!! (r) 2 Dougl. 624 Mod. 238 ; Brewster v. Kitchin, - - - 1 Ld. Raym. 3!7 ; Armfield v. White, 1 Ry. & M. 246 ; Brad- bury V. Wright, 2 Dougl. 624 Payne v. Burridge, !2 M. & W. 727 ; Governors of Christ's Hos- pital V. HarrUd, 2 M. & Gr. 707 (s) Palmer v. Earth, 14 M. & W. 428. (i) Guardians of Bedford Union V. Bedford ImprOTemeut Commissioners, 7 Exch. 777. («) Beg. V. Inhabitants of Ayles- bury, 9 Q. B. 261. Bennett v. Wormaok, 7 B. & C, {v) 3 M. & W. 312. Digitized by Microsoft® CH. IV.J HOW DEMISES ARE MADE. 119 but that was upon the ground of its being a scot, and not a parliamentary tax. In Baker v. Green- hill (w), a landlord was, with other landowners, liable to repair a bridge, ratione tenures. The tenant of the land had covenanted to pay the rent, "free and clear of and from any land-tax, and all other taxes and deductions whatsoever, either parliamentary or parochial, now already taxed or imposed upon the demised premises, or upon the tenant, his heirs, exe- cutors, administrators, or assigns in respect thereof, the landlord's property-tax or duty only excepted." Some local acts of Parliament, reciting the liability of the landlord ratione tenurcB, had enacted that he and the other landowners who were liable should keep the bridge in repair, and had enabled them to raise the requisite moneys by rates among themselves, according to the value of the lands chargeable, and had given them a power to levy the amount, if neces- sary, by distress. It was held that the liability to contribute to these repairs did not, by the operation of the local acts, become a parliamentary tax or deduc- tion within the meaning of the covenant of the tenant. Lord Denman in giving the judgment of the Court, said: — " We are of opinion that the acts of Parlia- ment for enabling persons interested to raise the necessary funds for the repairs of the bridge by con- tribution among themselves, do not impose any tax within the meaning of the covenant. The charge was already created, and the acts merely supply a more convenient mode for raising the necessary funds to meet it." Where a local act imposed duties of paving upon a landlord, and in default gave power to com- missioners to execute the works, and recover expenses from the owner, it was held that the duty, in the first (w) S Q. B. 148. Digitized by Microsoft® 120 CREATION OF TENANCY. [PART I. instance, was to pave, and not to pay money, and the tenant was therefore not liable to his landlord (x) ; but it is otherwise where a sum of money is levied upon premises (?/). A covenant to pay taxes on the land does not extend to church and poor rates, for these are personal charges {z). Sometimes the lessor covenants to pay the rates and taxes ; sometimes the burden of them is thrown partly on the lessee and partly on the lessor. Such cove- nants are seldom interfered with by the Legislature. But the property-tax, which the landlord is bound to pay, forms an exception to this rule. (a). Repairs. The lesscc's responsibility for repairs is generally limited by an express covenant (b), which will run with the land (c). Usually there are three covenants by the lessee relating to repairs in a lease of buildings : — First, During the term to repair and keep in repair, &c., the demised premises ; secondly, To repair accord- ing to notice, with a provision for the lessor to enter and view the premises ; thirdly. At the determination of the term to leave the premises in repair. The covenant to repair generally, and the covenant to repair after notice, have been held to be distinct (x) Tidswell v. Whitworth, L. Vict. o. 10, and other acts. See R. 2 C. P. 326, 36 L. J. C. P. infra, Part 2, Div. 1, c. 1, s. 3, 103. Deductions. (j/) Thompson v. Lapworth, L . (6) As to obligation to repair R. 3 0. P. 149 ; 37 L. J. C. P. arising from the mere relation of 74 ; and see Bird v. Elwes, L. R. landlord and tenant. See Implied 3 Ex. 255, 37 L. J. Ex. 91. Covenants, post, sub. -sect, (b), p. {z) Head v. Sfcarkey, 8 Mod. 135. 314. See Tidswell i>. Whitworth, (c) See Part 4, o. 1, s. 4, L. R. 2 C. P. 326. Covenants Running with the (a) 5 & 6 Vict. 0. 35, ss. 60, Laud. 103, extended and altered by 17 Digitized by Microsoft® CH. IV.J HOW DEMISES ARE MADE. 121 and independent covenants {d) ; but they may be so joined as to make one entire covenant (e). The lessor sometimes enters into a covenant to repair ; but without an express covenant he cannot be compelled to repair (/). "Where the lessor covenanted to keep the " main walls, main timbers, and roofs " in repair, it was held that as to the main timbers and roofs, the lessor could have no knowledge of their state of repair without notice, and that therefore notice must be given by the lessee before he could bring an action upon the cove- nant (y). On a demise of buildings a general covenant to re- pair has been usually construed to comprehend as well the buildings erected by the lessee as the buildings originally demised (k). So where a lessee erected fixtures for the purpose of trade, and afterwards took a new lease, to commence at the expiration of his former one, and the ne^v lease contained a covenant to repair, it was held that he was bound to repair the fixtures (i). Under a general covenant to repair, the lessee's liability is not confined to cases of ordinary and (d) Baylia v. Le Gros, 4 C. B. {h) Dowse t;. Gale, 2 Vent. 126 ; N.S. 637 ; Few v. Perkins, L. B. Penry v. Brown, 2 Stark, 408 ; 2 Ex. 92, 36 L. J. Ex. 54. Brown v. Blunden, Skin. 121 ; (c) Horsef all v. Testar, 7 Taunt. In re Newbery, White v. Wakley, 385. 28 L. J. Ch. 77, 26 Beav. 17 ; 17 (/) Neale v. Ratcliffe, 15 Q. B. Penry v. Brown, 2 Stark R. 403 ; 916, 20 L. J. Q. B. 130 ; Can- but see Laut v. Norris, 1 Burr, nook V. Jones, 3 Exch. 233 ; Bird 287 ; Cornish v. Cleife, 34 L. J. V. Elwes, L. K. 3 Ex. 225, 37 L. Ex. 19. J. Ex. 91. (i) Thresher v. East London {g] Makiu v. Watkinson, L. R. Waterworks Co. 2 B. & C. 608. 6 Ex. 25. Digitized by Microsoft® 122 CREATION OF TENANCY. [PART I. gradual decay ; but in a demise of buildings it ex- tends to injuries done to them by fire, whether acci- dental or wilful, or by lightning, tempest, flood, or enemies, &c. {j ). In consequence of this obligation, it is customary to introduce an exception against such accidents into the covenant (^). But a covenant to keep in the same state the woods, lands, and natural productions will not render the lessee liable for any injury which may arise to these from the act of God(0. Under a covenant to repair and keep in repair the buildings demised during the term, the lessee is bound to keep them in repair at all times during the term (m) ; and the lessor, upon breach, can, during the term, recover damages commensurate with the injury done to his reversion (n). Where the lessor brought an action for non-repair upon the determination of the lease, and had previ- ously agreed by parol with a new tenant to pull down the buildings, and otherwise to improve the value of the property, it was held that the jury were not bound to give mere nominal damages (p). A general covenant to repair is satisfied by the lessee keeping the premises in substantial repair (jo). {j ) Brooke's Abr. Covenant, (m) Luxmore v. Robson, 1 B. & pi. 4 ; Walton v. Waterhouse, 2 A. 584. Saund. 420 ; Bullock t". Dommitt, («) Smith v. Peat, 9 Exch. 161 ; 6 T. R. 650 ; Brecknock Canal Turner v. Lamb, 14 M. & W. Company v. Pritchard, 6 T. R. 412. 750. See^os*, Insurance, p. 124. (a) Rawlings v. Morgan, 18 C. (h) But this exception will not B. N.S. 776, 34 L. J. C. P. 185. bind the landlord to repair. It seems it might have been the Weigall V. Waters, 6 T. R. 488 ; same even if the agreement with Monck V. Cooper, 2 Ld. Raym. the new tenant had been binding. 1477. '■ (p) Harris v. Jones, 1 Moo. & (I) Shep. Touch. 173. R. 173. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 123 If it is a general covenant to keep old premises in re- pair, the lessee is not liable for dilapidations which are the result of time and the elements ( q). But a covenant to keep old premises, and deliver them up, in good repair, means to put them into such repair as is suitable to their age and class ; and the lessee is not justified in keeping them in bad repair because they were in that condition at the time when the covenant began to operate (r). The sufficiency of the repairs is a question of fact for the jury, who may consider generally the state of repair of the premises at the time of the making of the lease (s). Where a lessee agrees to put the premises in " habitable repair," he is to put them in a state fit for the occupation of the class of persons likely to in- habit them if). A lessee under a general covenant to repair is not liable for the extra expense of laying a new floor on an improved plan (m). A covenant to repair "all the external parts of the demised premises," includes the partition wall between the premises and an adjoining house, the external parts of premises being those which form the inclosure of them (v). Sometimes the covenant is of a conditional nature, and it is part of the agreement that the landlord should in the first place put the premises into good repair {m) ; and until that is done, the lessee is not {q) Gutteridge v. Munyard, 1 (t) Belcher o. Mackintosh, 8 Moo. & R. 334. C. & P. 720, 2 Moo. & Ky. («•) Payne i;. Haine, 16 M. & W. 186. 641, Easton v. Pratt, 33 L. & J. (w) Saward v. Leggatt, 6 C. & P. Ex. 233. See Schroder v. Ward, 613. 13 C. B., N.S. 410. (v) Green -o. Bales, 2 Q. B. (s) Stanley v. Towgood, 3 Bing. 225. N. C. 4; Burdett v. Withers, 7 (w) See Slater «. Stone, Cro. Jac. A. & E. 136 ; Mantz v. Goring, i 645; Cannock v. Jones, 3 Exch. Bing. N. C. 451 ; Young v. 233, 5 Id. 713. Manton, 6 Scott, 277. Digitized by Microsoft® 124 CEEATION OF TENANCY. [PAET I. Husbandry. Insurance. liable for repairs (x). But a covenant to repair, "having or taking" sufHcient wood, &c., from the premises " for the doing thereof," is an absolute covenant to repair, and not conditional to there being a sufficient supply of timber (y). In farming leases (z) it is usual for the lessee to covenant that he will manage his farm in a husband- like manner. The mere relation, however, of landlord and tenant creates an implied obligation to farm ac- cording to the custom of the country (a). Sometimes, however, the custom of the country may be excluded by the express provisions of the lease (d). The lease should contain a covenant by the lessee, his executors, administrators, and assigns, to insure and keep insured during the term the buildings de- mised for a certain amount in some insurance office (c), in the joint names of the lessor and lessee, or either of them, according to the terms of the covenant {d). The covenant should also contain a clause for the pro- duction of the policy, and of the receipt for the pre- mium during the year (e), and a provision that the money recoverable from the insurance office shall be applied in repairing or rebuilding the premises de- stroyed by fire. But where there is a covenant to {x) Neale v. Ratcliff, 15 Q. B. 916, 20 L. J. Q. B. 120 ; Coward V. Gregory, L. R. 2 C. P. 153, 36 L. J. C. P. 1. See also Thomas v. Cadwaller, Willes, 496 ; Martyn II. Clue, 18 Q. B. 661. (j/) Dean of Bristol v. Jones, 1 E. & E. iSi, 28 L. J. Q. B, 201. (2) See Implied Covenants, post, eub.-seot. (b). (ffl) Powley V. Walker, 5 T. R. 367. See Implied CoTenants, post, sub.-eect. (b), and Repairs and Cultivation, post, Part 2, Divis. 1, c. 3. (6) Webb u Plummer, 2 B. & Aid. 750 : Button v. Warren, 1 M. & W. 466, 477. (c) Doe d. Pitt v. Shewin, 3 Camp. 134. (d) Doe d. Muston v. Gladwin, 6 Q. B. 953 ; Penniall v. Harborne, 11 Q. B. 368. (e) Doed. Bridgerti. Whitehead, 8 A. & E. 571. See Toleman v. Portbury, L. R. 6 Q. B. Ex. Ch. 288, 39 L. J. Q. B. 136. Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 125 repair, the lessee's liability is not limited to the amount of the sum insured (/). A further provision may he made, that if the tenant omit to insure, the landlord may do it, and recover the money paid by distress or otherwise, as for rent in arrear. The ordinary covenant to insure is broken if the lessee fail to keep the premises insured for any time, however short {g). The breach of this covenant is a continuing breach, and the receipt of rent by the lessor after breach waives only that portion of the breach which has then actually occurred (Ji). If, however, the lessor, by his conduct, leads the lessee to believe that the covenant has been performed, he cannot recover in ejectment for a forfeitm-e, though there was no dis- pensation or release from the covenant (i). In general the lessee also covenants not to underlet Not to under- nor assign the premises, nor any part thereof, without ^ "°'' assign- the written consent or license of the lessor (J). If the covenant only restrains the lessee from assigning, he may underlet without his lessor's consent ; but al- though an under-lease is no breach of a covenant not to assign, yet the converse of the proposition cannot be maintained {k). Covenants denj'ing the privilege (/) Digby V. Atkinson, 4 Camp. leases, might be open to the ob- 275. jeotion of creating a perpetuity. (g) Doe d. Pittu. Shewin, 3 Camp. See Piatt on Cofenants, 404 ; Roe 134;Doed. Darlington?). Ulph, 13 ci. Hunter t>. Galliers, 2 T. R.140; Q. B. 204 ; Wilson v. Wilson, 14 Buckland v. Hall, 8 Ves. 94 ; C. B. 616 ; Doe d. Flower v. Peck, Church v. Brown, 15 Ves. 269 ; 1 B. & A. 428 ; Hyde v. Watts, 12 Folkingham i). Croft, 3 Anst. 701. M. & W. 254 ; Doe d. Baker v. (k) Church v. Brown, 15 Ves. Jones, 5 Exch. 498 ; but see Doe 265 ; Doe d. Mitchinson v. Carter, d. Pitt V. Laming, 4 Camp. 73. 8 T. R. 61 ; Crusoe d. Blencowe (h) Doe d. Muston v. Gladwin, v. Bugby, 2 W. Bl. 766, 3 6 Q. B. 953. Wils. 234 ; Kynnersley v. Orpe, (i) Doe d. Knight v. Rowe, Ry. 1 Dougl. 67 ; Holford v. Hatch, & Moo. 343 ; Doe d. Pitman v. ib. 183 ; Brewer v. Hill, 2 Anst. Sutton, 9 C. & P. 706. 413 ; Roe d. Gregson v. Harrison, (j) It seems that a covenant of 2 T. R. 425; Doe d. Holland r. this kind, if inserted in very long Worsley, 1 Camp. 20. Digitized by Microsoft® 126 CREATION OF TENANCY. [I'AET I, of underletting can only extend to such underletting as would require a license. The exclusive enjoyment, therefore, of a room in the premises by a lodger will not occasion a breach of such a covenant (J). Where the lessor is desirous that the possession, as well as the property, should be confined to his lessee, ex- press words prohibiting the privilege of taking in lodgers, or parting with the possession of the pre- mises, or any part thereof, must be contained in the deed (m). Although it is the practice to insert a covenant against underletting and assigning without the lessor's consent, and although such a covenant may be fair and reasonable, yet the better opinion seems to be, that an agreement for a lease, containing a stipula- tion that the lease to be granted shall contain all common and usual covenants, will not include this covenant, as common and usual covenants mean such covenants as are incidental to the lease (n). A lease made to the lessee and his assigns, provided he shall not assign, is void ; but it would have been good if the proviso had been that he shall not assign without consent (o). The former part of this proposi- tion, however, has been denied {p). A covenant that the lessee, " his executors or administrators," will (I) Doe d. Pitt 1). Laming, 4 ter, 1 Esp. 8 ; Folkiagham v. Camp. 73. Croft, 3 Anst. 700 ; Judgment of (m) Eoe d. Dingley v. Sales, 1 Sir W. Grant, M.R., in Jones v. M. & S. 297 ; Marsh v. Curtis, 2 Jones, 12 Ves. 186 ; Vere v. Love- And. 42, 90 ; Doe d. Holland v. den, 12 Ves. 179 ; Brown v. Ray- Worsley, 1 Camp. 20 ; Church v. mond, 15 Ves. 628 ; Buokland v. Brown, 15 Ves. 265. See Williams Papillon, L. R. 1. Eq. 477. V. Cheney, 3 Ves. 61 ; ColUns v. (o) Shep. Touch. 123 n. Silley, Sty. 265. (p) Denisr. Laurie, Hardr. 427 ; (») Henderson v. Hay, 3 Bro. Wetherall v. Gearing, 12 Ves. C. C. 632 ; Church v. Brown, 15 511. Ves. 258, 271 ; Morgan v. Slaugh- Digitized by Microsoft® CH. IV. J HOW DEMISES AEE MADE. 127 not assign, does not bind his assigns ( q) ; but it will bind his executors or administrators (r). Leases very generally contain a covenant restrain- Not to carry ing the exercise of certain specified trades on the trades.*™ premises, and sometimes they go further and totally prohibit the carrying on of all trades and businesses whatsoever ; also to prevent any sale by auction in the house (s). Covenants of this kind, when they affect the mode of occupation or enjoyment of the land demised, run with the land (t). Covenants in restraint of trade in a trading locality, and restrictions against particular trades, are not common and usual covenants (m). But where a public-house was described as held at a certain net rent, under common and usual cove- nants, and the lease contained a proviso for re-entry by the lessor, if any business but that of a victualler should be carried on in the house, it was held, upon proof that such a proviso was inserted in at least six out of ten leases of public-houses, that the proviso was common and usual (v). A covenant not to sell spirituous liquors, will not include wine (m). A cove- (5) Doe d. Cheere v. Smith, 5 Hayward, L. E. 4 Ex. 311. Such Taunt. 795 ; Bally v. Wells, 3 covenants bind assigns in equity, Wils. 33 ; Paul u. Nurse, 8 B. & who have actual or constructive C. 486. notice of them. See Jay v. (r) Roe d. Gregsonv. Harrison, Richardson, 30Beav. 563 ; Wilson 2 T. R. 425. V. Hart, L. R. 1 Ch. Ap. 463 ; (s) Parker v. White, 32 L. J. Ch. Catt v. Tourle, L. E. 4 Ch. Ap. 520, 1 H. & M. 167. As to the 654, 38 L. J. Ch. 665 ; Fielden person upon whom the burden of v. Slater, L. R. 7 Eq. 523. See proof lies, see Toleman v. Port- infra, Part 4, c. 1, s. 4. Covenants bury, L. R. 5 Q. B. Ex. Ch. 288, Running with the Land. 39 L. J. Q. B. 136. (u) Wilbraham v. Livsey, 18 («) Mayor of Congleton v. Patti- Beav. 206 ; Probert v. Parker, 3 son, 10 East. 136 ; Wilkinson v. Myl. & Cr. 280. See ante, Cove- Rogers, 2 De Gex J. & S. 62. nants not to Underlet, p. 125. When theyarecollateral,and relate (v) Bennett!). Womaoh, 7 B. & to something to be done elsewhere C. 627. than on the land demised, they do (w) Fielden v. Slater, supra. not run with the land ; Thomas v. Digitized by Microsoft® 128 CEEATION OF TENANCY. [PART I. nant not to use a house as a beer-house, is not broken by the sale, under a license, of beer by retail to be consumed on the premises (a?). As to the effect of a license granted and waiver in case of forfeiture, see infra^ 8 and 9, and Part 3, c. 3, s. 1. Trading with Sometimes the lessee covenants that he will deal sons^OT wiUiin 'with the Isssor alone, as in the case where a public- a particular house-keepcr agrees to buy all his beer of his landlord. Such contracts are not favoured by the Courts, and it must be shown that the lessor faithfully performed his part of the contract, by supplying good beer (y). Such covenants are binding on an assignee with notice (z). Where, upon a lease of limeworks, it was stipulated that the lessor should furnish, and the lessee take, coals from certain collieries, the collieries not furnish- ing sufficient, it was held that the lessee could not go elsewhere for the whole of his coals, but could only supply the deficiency {a). . A covenant is sometimes inserted in a lease to pre- vent one or other of the parties from exercising his trade within a certain radius (5). The covenant will not be good, if it be to the prejudice of the public generally ; and therefore it must only affect a limited area, and must be made for a hon& fide consideration (c). But (k) London and North- Western (a) "Wight v. Dioksons, 1 Dow. Railway Co. ti. Garnett, L, K. 9 lii. Eq. 26. (6) The distance is to be mea- (y) Thornton v. Sherratt, 8 sured as the crow flies. See Taunt. 529 ; Holcombe v. Hew- Duigan v. Walker, 1 Johns. 446, son, 2 Gamp. 391 ; Jones v. Eduey, 28 L. J. Oh. 867 ; Reg. -o. Saffron 3 Camp. 285. Waldeii, 9 Q. B. 76 ; Jewel o. (2) Wilson V. Hart, L. R. 1. Ch. Stead, 6 E. & B. 350. Ap. 463 ; Catt v. Tourle, L. R. 4 (c) Davis v. Mason, 5 T. R. 118 ; Ch. Ap. 654, and see anU, p. 127, Morris v. Coleman, 18 Ves. 438 ; n. (t). Digitized by Microsoft® CH. IV.J HOW DEMISES AEE MADE. 129 if there be no limit as to space, the contract is void, whether with or without consideration (d). In the case of Horner v. Graves (e), which turned on the question of space, it was stated that whatever restraint is larger than is necessary for the protection of the party, is op- pressive, and therefore unreasonable. This proposition was supported by the Court of Exchequer Chamber (_/), but they held, in the case before them, that there being no limit as to time did not make the contract unreasonable. But in the subsequent case of Archer V. Marsh, in which there was no limit as to time, the Court of Queen's Bench stated that the principle of the decision of the Court of Exchequer Chamber was, that the restraint of trade in that case could not really be injurious to the public, and that the parties must act on their view of what restraint may be adequate to the protection of the one, and what advantage a fair compensation for the sacrifice made by the other. They also stated that Horner v. Grraves was overruled by the decision in Error (^). The Court will not consider whether the considera- tion is adequate to the restraint, though there must be some consideration (Ji). It seems that an injunction will issue to restrain a man who, as foreman or workman for another person, Hitchcock V. Coker, 6 A. & E. Company v. Lorsont, L. R. 9. Eq. 438 ; Archer v. Marsh, 6 A. & E. 345, 39 L. J. Ch. 86. 959; Pilkingtou v. Scott, 15 M. & (e) 7 Bing. 735. W. 657 ; Procter v. Sargent, 2 M. (/) See Hitchcock o. Coker, & E. 20 ; Eannie v. Irving, 7 M. supra. & E. 969 ; Pemberton v. Vaughan, (g) It does not appear that the 10 Q. B. 87 ; Elves v. Crofts, 10 case of Horner «. Graves wasover- C. B. 241 ; Mumford v. Gething, 7 ruled, but it was distinguished C. B. N.S. 305, 29 L. J. C. P. from Hitchcock v. Coker. 105. (h) See the above cases, and (d) Hinde v. Gray, 1 M. & G. Pilkington v. Scott, w,pra. 195. But see the Leather-cloth Digitized by Microsoft® 130 CEEATION OF TENANCY. [PART I. engages in a trade contrary to his covenant (i) ; but where the covenant was not to carry on a business " in his own name, or that of any other person," it was no breach to act as manager for another at a weekly salary (J). Quiet enjoy- Although an implied covenant for quiet enjoyment ment. jq g, lease arises on the words demise, let, &c. {k), the lease in general contains an express covenant by the lessor, which may be either qualified or unqualified. A form of qualified covenant is given by the second schedule of the 8 & 9 Vict., c. 124, and is as follows : — " And the lessor doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said lessee, his executors, administrators, and assigns, that he and they, paying the rent hereby reserved, and performing the covenants hereinbefore on his and their part contained, shall and may peace- ably possess and enjoy the said demised premises for the term hereby granted, without any interruption or distm'bance from the said lessor, his executors, admin- istrators, or assigns, or any other person or persons lawfully claiming by, from, or under him, them, or any of them." Under a covenant of this description, any subse- quent ejectment, or other interruption or disturb- ance, by any person who does not claim " by, from, or under " the lessor, would be no breach (/). So under such a covenant, a distress for previous arrears of land-tax, due from the lessor, would be no breach, (»■) Newling v. Dobell, 19 L. T. {I) Year Book, 26 Hen. VIII. ^''-S. 408. 3 b ; MerriU v. Frame, 4 Taunt. ij) AUan V. Taylor, 39 L. J. 329. Ch. 627. (A) See Implied Covenants, post, p. 139. Digitized by Microsoft® CH. IV.] HOW DEMISES AKE MADE. 131 the words implying a claim, by title from the lessor, and not a claim against him (m). A general or unqualified covenant extends to the acts of all persons having lawful title, and is not con- fined to the acts of persons claiming through the lessor. Such covenants generally purport to assure against disturbance by " any person or persons whom- soever ; " but these words will not include persons hav- ing no title, for " the law shall never judge that a man covenants against the wrongful acts of strangers, unless the covenant be full and express to that purpose " (n). A covenant against the acts of a particular person by name will, however, include the acts of that per- son, whether he has title or not (o). And if there be express words in the covenant showing a clear intent to protect the lessee from unlawful as well as from lawful interruption — as, for instance, that the lessee shall enjoy against all " claiming, or pretending to claim," any right, &c. — the lessor will be bound by the express words {p). So when the lessor is a party named in the covenant, it will extend to all interrup- tions by him, whether rightful or wrongful ( q). In Smith V. Compton, it was said that a covenant for title, unqualified in itself, and unconnected by words (m) Stanley v. Hayes, 3 Q. B. 29 ; Nash v. Palmer, 5 M. & S. 105. 374 ; Shep. Touch. 166 ; Perry v. (») Tear Book, 22 Hen. VI. 52 Edwards, 1 Stra. 400. See also b ; 32 Hen. VI. 32 h ; Hayes v. Eashleigh v. Williams, 2 Vent. Bickerstaff, Vaugh. 118 ; Tisdale 62. V. Essex, Hob. 34 ; Chautflower v. ( p) Southgate v. Chaplan, in Priestley, Cro. Eliz. 914 ; Broking C. P. Com. 230 S.C. ; Chaplan v. V. Cham, Cro. Jao. 425 ; Hammond Southgate, in K. B. 10 Mod. 383 ; V. Dod, Cro. Car. 5; Nokes' case, Lucy v. Levington, 1 Vent. 175 ; 4 Rep. 80 b; Jerritt v. Weare, 3 Hunt v. Allen, Wynch. 25. Price, 595. See Dudley «. FoUiott, (g) Lloyd v. Tomkies, 1 T. R. 3 T. R. 584. 671 ; Andrews u Paradise, 8 Mod. (o) Poster V. Mapes, Cro. Eliz. 319; Shaw v. Stenton, 2 H. & N. 212 ; Fowle o. Welsh, 1 B. & C. 858. Digitized by Microsoft® 132 CEEATION OF TENANCY. [PART I. witL. a qualifying covenant in the lease, must in a court of law be regarded as an absolute covenant for title (r). Where the lessor covenanted that lie had not done, nor permitted, nor suffered to be done, any act, &c., it was held that consenting to an act, which he could not prevent, was not a breach (s). A breach of this covenant may be made, either by proceedings in law or by other acts. Where the covenant was, that the lessee should enjoy the estate discharged of tithes, it was held that the covenant was broken by a suit for the tithes, although the term was at an end (t) ; but a suit for waste is not a breach of the covenant for quiet enjoyment (u). An act done in the assertion of title (v), and which disturbs the lessee in the full enjoyment of his pro- perty, amounts to a breach, as, for instance, the erec- tion of a gate so as to interfere with the use of a close (to), or digging a quarry so as to interfere with the working of a mine (x). Renewal of A covenant for the renewal of a lease runs with the land (y). But a covenant for a perpetual renewal, (r) Smith v, Compton, 3 B. & («) Morgan v. Hunt, 2 Ventr, Ad. 189, overruling • Milner v. 215. Horton, M'Clel. 6i7 ; and see (v) Sedden v. Senate, 13 East. Brownings. Wright, 2 B. & P. 1.3, 72. where the qualifying covenants {w) Andrews v. Paradise, 8 Mod. were connected with the unquali- 318. fied covenant. {x) Shaw v. Stenton, 2 H. & W. (s) Hobson V. Middleton, 6 B. 858. As to remedies for a, breach, & C. 295. see Part 3, Div. 2, o. 1. (<) Laming v. Laming, Cro. (y) Earl of Shelbum ii. Bid- Eliz. 316. dulph, 6 Bro. P. C. 363. Digitized by Microsoft® CH. IV. J HOW DEMISES AKE MADE. , 133 entered into by a lessor having a limited interest, does not bind the estate (z). A covenant for re- newal which would create a perpetuity in the heirs of the body of a particular person is in- valid (a). And in general the Courts will not con- strue a covenant for renewal to be perpetual {b), unless the intention of the parties is clearly ex- pressed (c). And where there is a proviso in general terms that the lease to be granted shall contain the same cove- nants and agreements as the lease containing the covenant, such a proviso has been held not to extend to the covenant for renewal (d). With respect to what will create a forfeiture of the right of renewal, that will depend upon the terms of the covenant, and whether they have been sufficiently carried out or not (e). The Court of Chancery will not generally relieve a lessee from the consequences of his laches (J) ; and where there is a covenant to renew, provided the cove- nants are kept by the lessee (^), or to renew at the end of the term, if it should not sooner determine through (a) Brereton v. Tuohey, 8 Ir. {d) i Jarm. Prec. 393, 3d edit. ; Ch. E. 190 ; Postlethwaite v. Tritton v. Foote, 2 Bro. C. C. 636, Lewthwaite, 2 J. & H. 237, 31 2 Cox, 174 ; Iggulden v. May, 7 L. J. Ch. 584. East. 237 ; Hide v. Skinner, 2 P. (a) Hope V. Mayor of Gloucea- Wins. 197. ter, 7 De G. M. & G. 647, 25 L. (c) See Baynham o. Guy's J. Ch. 145. Hospital, supra; Eaton v. Lyon, (5) Baynham v. Guy's Hospital, 3 Ves. 690 ; Bogg v. Midland 3 Ves. 298; Smyth v. Nangle, 7 Kailway Co., L. E. 4 Eq. 310, 01. & Fin. 405; Brown v. Tighe, 313, 36 L. J. Ch. 440 ; Eubery 2 CI. & Fin. 396. v. Jerroise, 1 T. E. 229. (c) Hare v. Burgess, 4 Kay & J. (/) 4 Jarm. Prec. 397, 3d edit. 45, 27 L. J. Ch. 86 ; Bridges, {g) Job v. Banister, 2 Kay & J. V. Hitchooek, 1 Bro. P. C. 622; 374, 26 L. J. Ch. 126. Furnival v. Crewe, 3 Atk. 83. Digitized by Microsoft® 134 CBEATION OF TENANCY. [PART I. the lessee's default (Ji), the Court will not decree a specific performance of the covenant to renew, the tenant not having performed his part of the agree- ment. As to renewals by minors and lunatics, see the 1 1 Geo. IV. & 1 Will. IV., 0. 65, ante, pp. 24, 28. In order to prevent the inconvenience arising from the refusal of under-lessees to surrender their under- leases, and so to prevent the renewal of leases, it is enacted by the 4 Geo. II., c. 28, s. 6, that " in case any lease shall be duly surrendered, in order to be renewed, and a new lease made and executed by the chief landlord or landlords, the same new lease shall, without surrender of all or any the under-leases, be as good and valid, to all intents and purposes, as if all the under-leases derived thereout had been likewise surrendered at or before the taking of such new lease; and all and every person and persons in whom any estate for life or lives, or for years, shall from time to time be vested by virtue of such new lease, and his, her, and their executors and administrators, shall be entitled to the rents, covenants and duties, and have like remedy for recovery thereof; and the under-lessees shall hold and enjoy the messuages, lands, and tene- ments, in the respective under-leases comprised, as if the original leases out of which the respective under- leases are derived had been still kept on foot and continued ; and the chief landlord and landlords shall have and be entitled to such and the same remedy, by distress or entry in and upon the messuages, lands, tenements, and hereditaments comprised in any such under-lease, for the rents and duties reserved by such (h) Thompson v. Guyon, 5 Sim. 65, cited 2 K. & J. 381. Digitized by Microsoft® CH. IV.] HOW DEMISES AEE MADE. 135 new lease, so far as the same exceed not the rents and duties reserved in the lease out of which such under- lease was derived, as they would have had in case such former lease had been still continued, or as they would have had in case the respective under-leases had been renewed under such new principal lease ; any law, custom, or usage to the contrary hereof notwith- standing." The effect of the above section is to leave untouched the sub-lease created before a surrender, but to give the lessee a right to surrender, notwithstanding the sub-lease (f). By the 8 & 9 Vict., c. 106, s. 9, when the rever- sion expectant on a lease merges, the estate which confers the next vested right shall be deemed the reversion for some purposes (J). As at common law the obligations of the parties were incident to the immediate reversion, and were extinguished upon merger of the reversion, the above statute was passed substituting the next vested right for the reversion (k). /^ \ -r n Implied cove- (b.) Implied Covenai^ts. nants and covenants in Implied covenants, and covenants in law, are such law. (i) See Cousins i). Phillips, 3 being, confer as against the tenant H. & C. 892, 35 L. J. Ex. 84. under the same lease the next See also Doe d. Palk v. Marohetti, vested right to the same tene- 1 B. & Ad. 715. ments or hereditaments, shall, to (j) The words of the sect, are : the extent and for the purpose of — That when the reversion ex- preserving such incidents to and pectant on a lease, made either obligations on the same rever- before or after the passing of this sion, as, but for the surrender or act, of any tenements or hereditar merger thereof, would have sub- ments, of any tenure shall, after sisted, be deemed the reversion the said first day of October one expectant on the same lease, thousand eight hundred and forty- (h) Webb i;. Russell, 3 T. R. five, be surrendered or merge, the 393 ; Stokes v. Russell, ib. 678 ; estate which shall, for the time Wooltey i'. Gregory, 2Y. & J. 536. Digitized by Microsoft® 136 CREATION OF TENANCY. [PAET I. covenants in deed as are not express covenants. There are many implied covenants which are not covenants in law, and which differ only from express covenants by reason of the obscurity with which the intention of the parties is expressed (/). A covenant in law " is an agreement which the law infers or implies from the use of certain words having a known legal operation in the creation of an estate ; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created " {rti). Such covenants cease with the estate of the lessor (n), but during the continuance of the estate, the covenant will run with the land (o). It is a maxim of the law that " expressum facit cessare taciturn,^'' and therefore an express covenant will control an implied covenant of the same nature (jo). Covenants may be implied from what appears to be the general intent of the parties. Thus a recital in a (I) Williams v. Burrell, 1 C. B. 5 ; Vyvyan v. Arthur, 1 B. & C. 429. 410. (m) Per Tindal, C.J., in Wil- (p) Merrill v. Frame, 4 Taunt, liams V. Burrell, 1 C. B. 429. 329 ; Line v. Stephenson, 6 Bing. (n) Swan v. Stransham, Dyer, N. C. 183 ; Standee v. Chrismaa, 257 a, 1 Leon. 179, cited 6 Bing. 10 Q. B. 135, 141 ; Deering v. 666 ; Penford v. Abbott, 32 L. J. Farrington, 1 Ld. Kaym. 14, 19 ; Q- B. 67. Mathew v. Blaokmore, 1 H. & N". (o) Bao. Abr. tit. Covenant (E) 762. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 137 deed may amount to an implied covenant upon which an action may be maintained ( q). In the case of a lease of lands in which are the Payment of words " yielding and paying " so much rent, this is an ''^'^** agreement for the payment of rent which amounts to a covenant, and an action lies for the non-payment (r). In the absence of any express covenant, an implied Repairs. one arises, on the part of the lessee, that he will use the buildings demised in a tenant-like and proper manner (s). An express covenant to repair will control an im- plied one (f) ; but, if not inconsistent with each other, both may stand (u). As to its effect upon an implied covenant to farm, &c., according to the custom of the country, see infra. It was said in Smith v. Marrable, that it was an implied condition in the letting of a house that it should be fit for habitation {v) ; but it has since been decided that that is not so, nor is there any implied condition that it should be fit for the purposes for which it is let (w). But where a (q) Severn v. Clark, 2 Leon. 122 ; (s) Leach v. Thomas, 7 C. & P. HoUis V. Carr, 2 Mod. 87 ; Barfoot 327 ; Harnett v. Maitland, 16 M. V. FresweU, 3 Keb. 465 ; Sampson & W. 287 ; Yellowby v. Gower, 11 V. Easterby, 9 B. & C. 505, in Exch. 29i ; Morrison v. Chadwick, error, 6 Bing. 644; Saltoun v. 7 C. B. 266 ; White «. Nicholson, Houston, 1 Bing. 433 ; Farrall v. 4 M. & G. 95. Hilditch, 5 C. B. N.S. 840. See (t) See ante, Covenant for Quiet also Lay v. Mottram, 19 C. B. N. Enjoyment, pp. 130, 136. S. 479 ; Aspdini). Austin, 5 Q. B. (u) White v. Nicholson, 4 M. & 671 ; Sharp v. Waterhouse, 7 E. G. 95. & B. 816. (v) 11 M. & W. 5. (r) Hellier v. Casbard, 1 Sid. (w) Hart v. Windsor, 12 M. & 266 ; Porter v. Swetnam, Styles, W. 68 ; Sutton ii. Temple, Id. 406. See also Giles v. Hooper, 52. Garth. 135. Digitized by Microsoft® 138 CKEATION OF TENANCY. [pART I. furnished house was let, subject to an express con- dition that it was fit for occupation, the condition was held broken by the house being infested by bugs (x). So also there is no implied covenant on the part of the lessor that he will do any repairs whatever (y) ; and if the landlord contract to do the repairs, there is no implied agreement that upon breach the tenant may quit (z), or that the tenant may do the repairs and deduct the amount from his rent (a). Husbandry. There is also an implied covenant on the part of the lessee that he will manage and cultivate the lands demised in a good and husbandlike manner, accord- ing to the custom of the country (b). If, however, there is an express covenant in the lease, such a covenant will control the implied cove- nant 1 farm according to the custom (c). Where the covenant is not inconsistent with the custom, both may stand (d), and it is question of law {x) Campbell v. Lord Wenlock, Martin v. Gilham, 7 A. & E. 5i0 ; 4 P. & F. 716. Biokford v. Parson, 5 C. B. 920 ; {y) Arden v. Pullen, 10 M. & Wilkins v. Wood, 17 L. J. Q. B. W. 321 ; Gott V. Gandy, 2 E. as B. 31 9. 845. (c) Webb v. Plummer, 2 B. & (z) Surplice v. Parnsworth, 7 M. C. 746 ; Roberts v. Barker, 1 Cr. & G. 676. & M. 808 ; Clarke v. Roystone, 13 {a) Hewlett?;. Strickland, Cowp. M. & W. 752. 56 ; Smith v. Mapleback, 1 T. R. (d) Button v. Warren, 1 M. & 446. W. 466 ; Holding v. Pigott, 7 Bing. (5) Powley v. Walker, 6 T. R. 465 ; Sutton v. Temple, 12 M. & 873 ; Legh v. Hewitt, 4 East. 154 ; W. 63 ; Faviel v. Gaskoin, 7 Exoh. Angerstein v. Hanson, 1 C. M. & 273 ; Munoey v. Dennis, 1 H. & N. R. 789 ; Earl of Falmouth v. 216 ; White v. Nicholson, 4 M. & Thomas, 1 Cr. & M. 89 ; Hallifax G. 95 ; Martyn v. Clue, 18 Q. B. V. Chambers, 4 M. & W. 662 ; 661, 682. Digitized by Microsoft® CH. IV. j HOW DEMISES ARE MADE. 139 for the Court whether the custom is excluded by the terms of the covenant {e.) An agreement to grant a lease contains an implied For title, undertaking on the part of the intended lessor that he has title to grant such lease ; and, if he has not, he is liable to an action at the suit of the intended lessee (_/). So also upon an agreement to sell an existing lease, the seller impliedly engages to make out the lessor's title to demise (g) ; but upon the sale of an agreement for a lease, it seems to be other- wise (Ji), for it is not a sale of an interest in the land, but only a sale of an agreement. A tenant has a right to have his estate secured to Quiet enjoy- him, and he has a right to have the quiet enjoyment ™™*' of it secured to him (i). Hence arises an implied covenant upon the part of the landlord for quiet en- joyment by the mere use of the word " demise " (_;"), and that even upon a parol demise (k). The word " let " or " lease," or any other word creating an actual demise, will have the same force as the word " demise " in creating a covenant for quiet enjoyment (Q. (c) Parker v. Ibbetson, 4 C. B. (j) WilKams v. Burrell, 1 C. B. N.S. 846. See post, Part 2, c. 3, 429 ; Adams v. Gibney, 6 Bing. B. 3. 656 ; Noke's ease, 4 Co. Eep. 80 (/) Stranks i>. St John, L. R. 2 b ; Fraser v. Skey, 2 Chit. Rep. C. P. 376, 36 L. J. C. P. 118 ; 646 ; Burnett v. Lynch, 5 B. & C. Anthony v. Brecon Market Co., 589. L. R. 2 Ex. 167. (k) Bandy o. Cartwright, 8 Exch. (g) Hall V. Betty, 4 M. & G. 913 ; Messent v. Reynolds, 3 C. B. 410 ; Souter v. Drake, 6 B. & Ad. 194. 992 ; De Medina v. Norman, 9 M. {I) Bandy v. Cartwright, 8 Exch. & W. 820. 913 ; Hall v. City of London (h) Kintrea v. Perston, 1 H. & Brewery Company, 2 B. & S. 737 N. 357, 25 L. J. Ex. 287. 31 L. J. Q. B. 267. (i) Smith's L. & T. 480, 2d edit. Digitized by Microsoft® 140 CKEATION OF TENANCY. [PAKT I. The word " give or " grant " had formerly a similar effect; but now by the 8 & 9 Vict., c. 106, s. 4, in a deed executed after the 1st of October 1846, these words will not imply a covenant, except by special Act of Parliament. This implied covenant assures to the tenant quiet enjoyment of the demised premises during the con- tinuance of the term, without any lawful interruption or disturbance by any person having title {m) ; but it does not extend to assure the tenant of quiet enjoy- ment, without any eviction from or by the party or parties entitled to the reversion of or in the demised premises expectant on the termination of the land- lord's lease (w). A mere agreement for a lease does not create an implied stipulation for quiet enjoyment during the term agreed to be granted (o). An express covenant will control an implied one ( jo). An implied covenant for quiet enjoyment runs with the land, and may be sued on by the assignee of the lessee {g). Sometimes covenants are implied from the express (m) Williams v. Burrell, supra ; Brashier v. Jackson, 6 M. & W. Hayes v. Biokerstaff, Vaugh. 118 ; 649 ; Coe v. Clay, 5 Bing. 440 ; Lucy V. Levington, Freem. 103, 3 Jinks v. Edwards, 11 Exch. 775 ; Keb. 163. Parker v. Taswell, 2 De G. & J. (m) Granger v. Collins, 6 M. & 659, 27 L. J. Ch. 42. W. 458. See Jackson v. Cobbin, (-p) See write, pp. 135, 137, 8 M. & Vf. 790. See p. 131. 138. (o) Drury v. Maonamara, 5 E. (g) Williams v. Burrell, 1 C. B. & B. 612, 25 L. J. Q. B. 5; 402. Digitized by Microsoft® CH. IV. j HOW DEMISES AKE MADE. 141 covenants which have been entered into, although the Other implied Courts have recently shown a disposition not to imply °°'^®°™'^- covenants which ought to have been expressed (r). Sect. 8. — Provisos and Conditions. After the covenants by the lessee, provisos and conditions by which the estate granted may be en- larged (s) or defeated are frequently inserted. A condition or proviso (t) is defined to be " some quality annexed to a real estate, by which it may be defeated, enlarged, or " created upon an uncertain event " (u). No precise form of words is necessary for the pur- pose of creating a condition in a lease, as the con- struction of the clause will be governed by the apparent intention of the parties, to be collected from theinstrument itself (»). Evenif the word "condition " be used, it will be construed to mean contract or (r) Aspdin v. Austin, 5 Q. B. 671; Dunn v. Sayles, Id. 685; Doe d. Marquis of Bute v. Guest, 15 M. & W. 160 ; Pilkington v. Scott, Id. 657 ; Smith v. Mayor of Harwich, 2 C. B. N.S. 651 ; Sharp V. "Waterhouse, 7 E. & B. 816. See, however, Emmens v. Elderton, 4 H. of L. Cases, 624 ; Whittle v. FranHand, 2 B. & S. 49, 31 L. J. M. C. 81. (s) It is unnecessary to advert to conditions precedent, or those upon which an estate may come into esse. See Bac. Abr. Condi- tions (I); Shep. Touch. 133. The question whether any pro- vision in a contract is a condition precedent, depends upon the in- tention of the parties, as apparent on the contract, and not upon any formal arrangement of the words. See Boone v. Eyre, 1 a M. 273, note (a) : Tidey v. MoUett, 16 C. B. N.S. 298 ; Notes to Pordage V. Cole, 1 Wms. Sauud. 320 a ; and to Cutter v, Powell, 2 Smith's L. C. 5th edit. ; Com. Dig. Con- dition (B). (i) A condition is called a pro- viso, merely on account of the word with which it usually be- gins. (m) Co. Litt. 201 a.' See also Litt. S. S. 328, 329 ; Bac. Abr. Condi- tions (A) ; Lord Cromwell's case, 2 Bep. 69 b. As to the distinc- tion between conditions in law, i.e., implied conditions, and con- ditions in deed, see Litt. 325, 380 ; Co. Litt. 214 b ; Mary Port- ington's case, 10 Rep. 41 ; Shep. Touch. 117. (v) Doe d. Henniker v. Wall, 8 B. & C. 308. Digitized by Microsoft® 142 CKBATION OF TENANCY. [PAET I. stipulation, in order to eifectuate the intention of the parties (w). And where words both of covenant and condition are used, both will operate Qc). Where a power of re- entry is expressly given, or may be gathered from the words of the instrument, a condition, and not a cove- nant, will in general be created (y). A condition may be indorsed on the instrument, or may be contained in another executed the same day (z). Provisos or conditions which do not concern the thing demised, but are merely collateral, do not run with the land, so as to entitle an assignee of the reversion to sue (a). Leases usually contain provisos and conditions not to assign without license, with powers of re-entry for any breach of such conditions (3). Kot to assign. "\Ye have already stated the general nature and effect of a covenant not to assign or underlet, and also the nature of provisos and conditions in (m) Hayue v. Cummings, 16 C. not underlet the said premises B. N.S. 421. without the consent in writing of («) Shep. Touch. 1 22 ; Co. Litt. the landlord." 146 ; Co. Litt. 203 (B) ; Doe d. (i) Com. Dig. Condition (A) 9 ; Henniker v. "Wall, 8 B. & C. per Griffin?;. Stanhope, Cro. Jao. 456; Bailey, J., 315. Goodright d. NichoUa v. Marli, 4 (y) Doe d. Wilson v. Phillips, 2 M. & S. 30. Bing. 13 ; Doe d. Gardner v. Ken- (a) Stevens i>. Copp,L. R. 4, Ex. nard, 12 Q. B. 244. In Shaw v. 20, 38 L. J. Ex. 31. See post, Coffin, 14 C. B. N.S. 3?2, it was Part 3, o. 1, Covenants Running held that the following words in with the Land, an agreement for letting did not (6) See infra, ss. 8 and 9, pp. create a condition : — "The said 141,147; and also supra. Cove- tenant hereby agrees that he will nants not to Assign, p. 125. Digitized by Microsoft® CH. IV.j HOW DEMISES ARE MADE. 143 general (c), and we shall now proceed to explain what is a breach of a covenant not to assign, and how it may be waived. It has been held in several cases that a condition not to assign is not broken by an assignment by operation of law (c?). But if special words are inserted in the condition to include such case, a forfeiture will ensue (e). A covenant not to assign is broken by the execu- tion of a deed assigning the whole of the term, although the deed purports to be merely an under- lease, reserving rent with powers of re-entry {/)■ In order to create a forfeiture, the assignment must be valid in point of law {g). So an advertisement to underlet or assign is no breach (Ji). A covenant con- tained in the lease of a chophouse not to grant any under-lease or leases, or let, set, assign, transfer, set over, or otherwise part with the premises demised, or the indenture of lease, is not broken by depositing the lease with the brewers of the lessee as a security for money advanced by them (i). Whether a bec[uest, or, as the books caU it, the (c) See ante, p. 141. Wyndham v. Carew, 2 Q. B. (d) See Doe d. Goodbehere v. 317 ; Doe d. Lloyd v. Ingleby, 15 Bevan, 3 M. & S. 353 ; Doe d. M. & W. 465. Mitohinson v. Carter, 8 T. R. 57 ; { /) Parmenter v. Webber, 8 Doe d. Lord Anglesea v. Rugeley, Taunt. 593 ; Pierce v. Corrie, 5 6 Q. B. 107 ; Croft v. Lumley, 5 Bing. 24 ; Wollaston v. Hakewill, E. & B. 648, 682, and 6 H. of L. 3 M. & G. 297 ; Thome v. WooU- Caa. 672 ; Slipper v. Tottenham combe, 3 B. & Ad., 586. Junction Railway Co., L. R. 4 Eq. (g) l>oe [d. Lloyd i). Powell, 5 112 ; 36 L. J. Ch. 841 ; Bailey v. B. & C. 308. De Crespigny, L. R. 4 Q. B. (A) Gourlay v. Duke of Somer- 180. set, 1 V. & B. 68. (c) Roe (Z. Hunter r. GaUiera, 2 T. (i) Doe d. Pitt v. Laming, 1 ,^, (^ E. 133; Rex i;. Topping, M'Cel.& Ry. & M. 36 ; Doe d. Pitt v. 3. 544 ; Davis v. Eyton, 7 Bing. Hogg, 4 Dow. & Ry. 226. See ■^- 154; Rouch?). The Great Western Doe d. Goodbehere v. Bevan, 3 KaUway Co., 1 Q. B. 51 ; Doe d. M. & S. 353. Digitized by Microsoft® ] 44 CEEATION OF TENANCY. [PAKT I. devise of a term without the landlord's assent is a breach of a covenant not to assign -without license, appears doubtful. The law on the subject continued uniform up to the time of James I., namely, that a devise was a breach of the condition (J). But in the time of Charles I., a contrary doctrine was established, and this doctrine appears to have been since adhered to (K). In this doubtful state of the law, it would be as well to provide for the case of a devise by express words in the covenant. If the covenant contain an exception in favour of assignment by will, it would seem that the executors are not within the exception, and therefore not at liberty to sell for payment of debts without license of the lessor (I). A letting of part of the demised premises is a breach of a-^covenant not to let the demised premises, or any part or parcel thereof (to). So where the covenant was not to assign the whole or any part, and the lessor himself entered upon part, and the lessee afterwards assigned, it was held to be a breach of the cove- nant {n). License. At common law it was held that if a lessor licensed one assignment, the condition not to assign without license was at an end for ever, and the assignee might afterwards assign without license (o). And this has (}) Lord Windsor v. Bury, here v. Bevan, 3 M. & S. 361. In Dyer, 45 b ; Knight v. Mory, Cro. Doe d. Evans v. Evans, 9 A. & Eliz. 60 ; Barry v. Stanton, Cro. E. 719, the point was raised, but Elia. 330 ; Berry v. Taunton, Cro. not decided. Eliz. 331 ; Parry D. Harbert, Dyer, (I) Per Mansfield, C.J., in 45 b ; Dumpor v. Syms, Cro. Eliz. Lloyd v. Crisp, 5 Taunt. 249. 817 ; Huton v. Huton, Cro. Jac. (m) Roe d. Dingley v. Sales, 1 74. M. & S. 297. (h) Pox V. Swann, Stg. 482, 483 ; (a) Collins «. Sillye, Style, 265. Crusoe d. Blencowe v. Bugby, (o) Dumpor's case, 1 Smith's 3 Wils. 237. See the judgment L. C. 6th edit. 28. See note* of Bailey, J., in Doe d. Goodbe- 31. Digitized by Microsoft® CH. IV.] HOW DEMISES ARE MADE. 145 been held to be tbe case even wbere the license was to assign to a particular person {p). This law is still in force with reference to covenants and licenses con- tained in leases made before August 1859 (^). But the license, in order to put an end to the condition, must be such a license as is contemplated by the in- strument. Thus where the condition is not to assign without license in writing, a parol license is no dis- pensation (r), unless such parol license is used as a snare, in which case equity would relieve (s). So also where there is an exception in favour of assignment by will, the condition is still in force after an assign- ment by will {t). According to the general principle of law that long acquiescence in any adverse claim of right is good ground on which a jury may presume that the claim had a legal commencement, it has been held that a license may be presumed to have been given according to the terms of the condition. Thus upon proof of an uninterrupted sub-lease of the premises for more than twenty years, to the knowledge of the lessor, and con- trary to the condition of the lease, the Court held that the jury ought to be directed to presume that a license in writing had been duly given (m). Now, however, by 22 & 23 Vict., c. 35, s. 1 (»), it is enacted that " Where any license to do any act which, without such license, would create a for- (p) Brummel v. Macpherson, 14 (t) Lloyd v. Crispe, 5 Taunt. 249, Ves. 173. 254 ; Mason v. Corder, 7 Taunt. (j) See 22 & 23 Vict. c. 35, 9. infra. («) Gibson v. Doeg, 2 H. & N. (»•) Roe V. Harrison, 2 T. R. 615. See also Doe d. Sheppard 425 ; Maoher v. Foundling Hob- v. Allen, 3 Taunt. 78 ; Doe d. pital, 1 V. & B. 191. Bosoawen v. Bliss, 4 Taunt. 735. (s) Eichardson v. Evans, 3 (v) See also 23 k 24 Vict. c. 38, Madd. 218. as to waiver. Part 3, u. 3, s. 2. K Digitized by Microsoft® J 46 CEEATION OF TENANCY. [PART 1. feiture, or give a right to re-enter, under a condition or power reserved in any lease heretofore granted, or to be hereafter granted, shall at any time after the passing of this Act be given to any lessee or his assigns, every such license shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual assign- ment, under-lease, or other matter thereby specifically authorised to be done, but not so as to prevent any proceeding for any subsequent breach (unless other- wise specified in such license) ; and all rights under covenants, and powers of forfeiture and re-entry in the lease contained, shall remain in full force and virtue, and shall be available as against any subse- quent breach of covenant or condition, assignment, under-lease, or other matter not specifically authorised, or made dispunishable by such license, in the same manner as if no such license had been given ; and the condition or right of re-entry shall be and remain in all respects as if such license had not been given, except in respect of the particular matter authorised to be done." By sect. 2: — "Where -in any lease heretofore granted, or to be hereafter granted, there is or shall be a power or condition of re-entry on assigning or underletting, or doing any other specified act without license, and a license, at any time after the passing of this Act, shall be given to one of several lessees or co-owners to assign or underlet his share or interest, or to do any other act prohibited to be done without license, or shall be given to any lessee or owner, or any one of several lessees or owners, to assign or underlet part only of the property, or to do any other such act as aforesaid, in respect of part only of such Digitized by Microsoft® CH. IV.J HOW DEMISES AEE MADE. 147 property, such license shall not operate to destroy or extinguish the right of re-entry in case of any breach of the covenant or condition by the co-lessee or co- lessees, or owner or owners, of the other shares or interests in the property, or by the lessee or owner of the rest of the property (as the case may be), over or in respect of such shares or interests or remaining property, but such right of re-entry shall remain in full force over or in respect of the shares or interests or property not the subject of such license." Sometimes a condition is inserted that the lessor shall not withhold his license to assign unreason- ably or vexatiously, and he will be bound by such a condition (w). As to a waiver of the forfeiture by the lessor, see infra, Part 3, c. 3, s. 2. 9. PowEKS OF Re-entry. All leases sTiould contain a proviso for re-entry, for Powers of the purpose of enforcing the payment of the rent and ^^^^ ^^' the performance of the covenants. The form is usually as follows : — Provided always, and it is expressly agreed, that if the rent hereby reserved, or any part thereof, shall be unpaid for (fifteen) days after any of the days on which the same ought to have been paid (although no formal demand shall have been made thereof), or in case of the breach or non-performance (x) of any of the covenants and agreements herein contained on the (w) Lehmann v. MoArthur, L. whether such words would apply E. 3 Eq. 746, 3 Ch. Ap. 496. to the breach of a negative cove- (») Where the words were "in nant, such as a covenant not to case the lessee should fail in assign. West v. Dodd, L. R. 5 Q. the observance or performance of B. Ex. Ch. 460, 39 L. J. Q. B. the covenants," it was doubted 190. Digitized by Microsoft® 1 48 CEEATION OF TENANCY. [PART I. part of the said tenant, his executors, administrators, and assigns, then and in either of such cases it shall be lawful for the said (landlord), his (heirs or executors, administrators) or assigns, at any time thereafter, into and upon the said demised premises, or any part thereof in the name of the whole, to re-enter, and the same to have again, repossess, and enjoy as of his or their former estate, anything herein contained to the con- trary notwithstanding (y). Such provisos are construed according to the in- tention of the parties, to be collected from the words used (z). Thus where there was the following pro- viso, that if buildings should not be completed by a certain day, it should " be lawful for the lessor into the demised premises, or any part thereof in the name of the whole, and repossess, retain, and enjoy the same," it seems to have been held that the lessor had a right of re-entry, although the word "re-enter" had been omitted (a). But where the intention of the parties cannot be collected from the words used, the Court will not force a meaning into words which are insensi- ble (b). Where the proviso for re-entry was to take effectuponbreach of any of the covenants " thereinafter " contained, and there were none, except a covenant by the lessor for quiet enjoyment, provided the lessee performed the covenants "thereinbefore" mentioned, the Court would not reject the word " thereinafter" (c). Although in general the Court will construe a pro- (y) As to forfeiture, re-entry, C. B. N.S. 769 ; Baylis v. Le Gros, and waiver generally, see post, 4 C. B. N.S. 537, 539, 552. Part 3, c. 3, Bs. 1, 2. (a) Hunt!;. Bishop, 8 Exoh. 675. (2) Doe d. Davis v. Elsam, (6) Doe d. Wyndham v. Carew, M. & M. 189 ; Doe d. Muston v. 2 Q. B. 317 ; but see Doe d. Darke Gladwin, 6 Q. B. 953, 961 ; Croft v. Bowditch, 8 Q. B. 973. V. Lumley, 5 E. & Bl. 667, 27 L. (c) Doe d. Spencer v. Godwin, J. Q. B. 321 ; Perry v. Davis, 3 4 M. & S. 265. Digitized by Microsoft® CH. r\^J HOW DEMISES ARE MADE. 149 viso most strictly as against the covenantor, yet a proviso tliat if, after thirty days' notice, the tenant should make default in performance of any covenant, the landlord might re-enter, was held not to apply to alterations of buildings made by the tenant without leave, and contrary to the covenant, but only to acts to be performed by the tenant upon notice given (d). So a proviso for re-entry if the lessee " should do, or cause to be done, any act," &c., does not apply to a mere omission, as non-repair (e). A proviso that upon breach the lessor may re-enter upon the premises, and hold them " as if the said lease had never been made," or other similar words, does not preclude an action upon the covenants accruing before the re-entry (_/). Where there is a proviso in a lease that, upon breach of covenant, it shall be lawful for the landlord to re-enter, the land- lord may elect whether to avail himself of the proviso or not (^), and the lessee cannot elect to treat the lease as void()^). A lease contained a covenant, amongst others, that the tenant should not carry away any hay, &c., under a penalty. Then followed a clause enumerating all the other covenants except (d)iDoe d. Palk v. Marohetti, 1 Doe d. Bryan v. Banoks, 4 B. & A. B. & Ad. 715. 401 ; Arnsby v. Woodward, 6 B. (e) Doe d. Abdy v. Stevens, 3 & C. 519 ; Doe d. Nash v. Birch, B. & Ad. 299. See West v. Dodd, 1 M. cfe W. 402 ; Roberta v. Davey, supra, p. 147. 4 B. & Ad. 667 ; Jones v. Carter, (/)' Hartshorne v. Watson, 4 15 M. & W. 718 ; Pennington o. Bing N. C. 178, 6 Dowl. 404 ; Cardale, 3 H. & N. 356 ; Baylis v. Load V. Green, 15 M. & W. 216 ; Le Gros, 4 C. B. N.S. 537 ; Hayne Selby V. Browne, 7 Q. B. 620 ; v. Cummings, 16 C. B. N.S. 421. Davies v. Underwood, 2 H. & N. (Ji) Redei). Farr, 6 M. &S. 121 ; 673 • Att.-Gen. v. Cox, 3 H. L. Doe d. Bryan v. Banoks, 4 B. & Gas. 240. .A-d. 401 ; Roberts v. Davey, 4 B. Ig) Eeid v. Parsons, 2 Chit. 247 ; & Ad. 664 ; Doe d. Nash *. Birch, Doe d. Green «. Baker, 8 Taunt. 1 M. & W. 402. 241 ; Rede v. Farr, 6 M. & S. 121 ; Digitized by Microsoft® 150 CREATION OF TENANCY. [PAET I. this, and providing that upon breach of *' any of the covenants" the lessor might re-enter; and it was held that the words of the proviso were large enough to include the omitted covenant {i). As to forfeiture, re-entry, and waiver generally, see post, Part 3, c. 3, ss. 1 and 2. Void and Void- Sometimes the clause for re-entry, instead of pro- a e eases, yidijjg tj^^t in case of breach of covenant it shall be lawful for the lessor to re-enter, states that " the lease shall cease, determine, and become void and of no effect." A proviso that upon non-payment of rent, &c., the lease shall become utterly void, or similar words, only means that it may be made so by some act of the lessor showing an intention to avoid the lease {j), and the lessee cannot elect to make the lease void (k). Where a fraudulent representation is made with respect to a collateral matter, in order to procure the granting of the lease, it will not avoid the lease (J) ; but a plea of fraud or illegality may be a good answer to an action for not granting a lease under such cir- cumstances (m). Where there is an express covenant against using a {{) Doe d. Antrobus v. Jepaon, [k) Eede v. Farr, 6 M. & S. 3 B. & Ad. 402. 121 ; Doe d. Bryan v. Bancks, 4 {j) Hartshorns v. Watson, 4 B, & Ad. 401 ; Roberts t). Davey, Bing. JSr. C. 178 ; Davies v. Un- 4 B. & Ad. 664 ; Doe d. Nash v. derwood, 2 H. & N. 573 ; Roberts Birch, 1 M. & W. 402. V. Davey, 4 B. & Ad. 664 ; Pen- (l) Feret v. Hill, 15 C. B. 207. nington v. Cardale, 3 H. & N. (m) Calvaleiro v. Paget, 4 F. 656 ; Hughes v. Palmer, 19 C. B. & F. 537 ; Cowan v. Milburn, N.S. 393; Arnsby v. Woodward, L. R. 2 Ex. 230, 36 L. J. Ex. 6 B. & C. 519 ; Baylis v. he Gros, 124. 4 C. B. N.S. 537. Digitized by Microsoft® CH. IV.] HOW DEMISES AEE MADE. 151 house for unmoral purposes, yet if the lessor permits a breach of the covenant, and derives gain from it, he cannot afterwards recover upon his covenant (n). Arrears of rent accruing before the lease is made void may be sued for; and so also with respect to breaches of other covenants, even if the lessor is to hold the premises upon re-entry "as if the lease had never been made " (o). 10. Leases undek Powers. The general nature and effect of powers, and what is or is not a valid execution of a particular power, is too wide a subject to be treated of here. There are, how- ever, certain leading cases and principles which should be stated. The subject is fully treated of in other works more particularly devoted to this branch of the law (jo). It may, in general, be stated, that the crea- tion of the power and its execution will be construed according to the intention of the parties, collected from the words of the instrument, according to their ordi- nary and common acceptation (q). The Court will, if possible, support an appointment under a power, if it is not exercised from improper motives (r). (») Smith V. White, 35 L. J. Doug. 293; Pomeroy w. Parting- Ch. 454. See also Gas Light Co. ton, 3 T. R. 665 ; Goodtitle d. V. Turner, 5 Bing. N. C. 666, Clarges v. Funucan, 2 Doug. 573 ; where the purpose ia illegal. Hawkins v. Kemp, 3 East. 441 ; (o) See Hartshorne v. Watson, Doe d. Bartlett v. ilendle, 3 M.'& 4 Bing. N. C. 178. And see the S. 99; Griffith v. Harrison, 4 T. cases cited ante, p. 149, n. (/), as R. 737 ; Jagon v. Vivian, L. R. 2 to re-entry. C. P. 422, 3 H. L. Cas. 285, 36 L. (^) See Sugden on Powers, J. C. P. 145, 37 ib. 313. 711-835 ; WoodfaU, L. & T. 163, (r) See per Turner, L.J., in loth edit. ; Chance on Powers ; Carver v. Richards, 29 L. J. Ch. Powell on Powers. 360. (q) Ren d. Hall v. Bulkeley, 1 Digitized by Microsoft® 152 CEEATION OF TENANCY. [pART I. It is also a general principle that a man having a power may do less than such power enables him to do ; or if he do more, it shall be good to the extent of his power (s). If a tenant for life make a lease without taking notice of a power, it shall be taken to be an execution of the power, for otherwise the lease shall not have an effectual continuance (t). If a man charge his estate, and then execute his power of leasing, the lessee will take subject to the charge (m). Upon a general jjower to make leases, the law adjudges that the leases ought to be leases in posses- sion, and not in reversion (»). And if a man have a power to make leases in possession or reversion, having exercised his power in one way, he cannot afterwards exercise it in another (m). Where the power makes no mention of covenants, any covenants may be inserted or omitted, provided such insertion or omission be not a fraud which may lessen the value of the reversion {x). Where the power requires that the leases should be made under the " usual covenants," the question what are such is a question for the jury, and they must (s) Isherwood v. Oldknow, 3 (a) Sabbarton v. Sabbarton, M. & S. 382 ; Easton v. Pratt, 2 Cas. Temp. Hardw. 415. H. & C. 676, 33 L. J. Ex. 233 ; {v) Sheeoomb v. Hawkins, Cro. Edwards v. Milbank, 4 Drew, 606, Jao. 318, Yelv. 222. 29 L. J. Ch. 45; Sug. Pow, 746, (w) Winter v. Loveday, 1 Ld, pi. 26. Eaym. 267. («) 1 Vent. 228. («) Goodtitle d. Fuuucan, 2 Doug. 575. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 153 consider what were such at the time of the creation of the power (y). By the 13 Vict., c. 17, s. 2, where upon or before the acceptance of rent under any such invalid lease, any receipt, menaorandum, or note in writing, con- firming such lease, is signed by the person accepting such rent, or some other person by him thereunto law- fully authorised, such acceptance shall, as against the person so accepting such rent, be deemed a confirma- tion of such lease. These acts do not apply to leases granted by a mere stranger to the leasing power (z). "With respect to the mode of executing a lease under a power, it is provided by the 22 & 23 Vict, c. 35, s. 12, that such a lease may now be executed and attested in the manner in which deeds are ordinarily executed and attested, notwithstanding any express provision in the power to the contrary. But if the con- sent of any particular person be required by the power, such consent is necessary to a valid execution (a), or if any act is required to be performed, it must be per- formed {b). The statute does not make invalid the execution of the deed according to the terms of the power (c). Defects in leases under powers are in many cases (i/) Goodtitle sFunuoan, 2Doug. L. J. Ch. 373. See also Bobson 565 ; Doe d. Earl of Egremont «,. Flight, Si L. J. Ch. 226. V. Stephens, 6 Q. B. 208 ; Smith {a) Freshfield v. Reed, 9 M. & V. Doe d. Earl of Jersey, 7 Price, VV. 404. 281, 2 B. & B. 473 ; Doe d. Earl (6) Fryer v. Coombes, 11 A. & of Egremont v. WiUiams, 11 Q. B. E. 403. 688. (c) See the proviso, 22 & 23 (z) Ex parte Cooper in re the Vict. c. 35, s. 12. North London Railway Co., 34 Digitized by Microsoft® 154 CREATION OF TENANCY. [PAET I. now cured by the 12 & 13 Vict., c. 26, and the 13 Vict., c. 17. By the 12 & 13 Vict., c. 26, s. 2, it is enacted, that where in the intended exercise of any such power of leasing as aforesaid, whether derived under an Act of Parliament, or under any instrument lawfully creating such power, a lease has been, or shall hereafter be, granted, which is, by reason of the non-observance or omission of some condition or restriction, or by reason of any other deviation from the terms of such power, invalid as against the person entitled, after the deter- mination- of the interest of the person granting such lease, to the reversion, or against other the person who, subject to any lease lawfully granted under such power, would have been entitled to the hereditaments comprised in such lease, such lease, in case the same have been made bona fide, and the lessee named therein, his heirs, executors, administrators, or assigns (as the case may require), have entered thereunder, shall be considered in equity as a contract for a grant at the request of the lessee, his heirs, executors, administra- tors, or assigns (as the case may require), of a valid lease under such power, to the like purport and effect as such invalid lease as aforesaid, save so far as any variation may be necessary in order to comply with the terms of such power ; and all persons who would have been bound by a lease lawfully granted under such power shall be bound in equity by such contract : Provided always that no lessee under any such invalid lease as aforesaid, his heirs, executors, administrators, or assigns, shall be entitled by virtue of any such equitable contract as aforesaid to obtain any varia- tion of such lease, where the persons who would have been bound by such contract are willing to confirm such lease without variation. Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 155 Sect. 3 of the Act is repealed by the 13 Vict., c. 17(«!). By sect. 4, where a lease granted in the intended exercise of any such power of leasing as aforesaid is invalid by reason that, at the time of the granting thereof, the person granting the same could not law- fully grant such lease, but the estate of such person in the hereditaments comprised in such lease shall have continued after the time when such or the like lease might have been granted by him, in the lawful exercise of such power, then, and in every such case, such lease shall take effect, and be as valid as if the same had been granted at such last-mentioned time, and all the provisions herein contained shall apply to every such lease. By sect. 5, when a valid power of leasing is vested in, or may be exercised by, a person granting a lease, and such lease, by reason of the determination of the estate or interest of such person, or otherwise, cannot have effect and continuance according to the terms thereof, independently of such power, such lease shall, for the purposes of this Act, be deemed to be granted in the intended exercise of such power, although such power be not referred to in the lease. By sect. 6, the rights of lessees under covenants for title and quiet enjoyment, and the lessor's right of re- entry, and other rights for breach of covenant, are saved. By sect. 7, the Act does not extend to ecclesiastical, college, hospital, or charitable leases, or where a lease has been surrendered, &c. , by reason of its invalidity. [d) See post, p. 156. Digitized by Microsoft® 156 CREATION OF TENANCY. [pART I. By the 13 Vict., c. 17, s. 2, it is enacted, that where, upon or before the acceptance of rent under any such invalid lease, as in the said first-recited Act mentioned, any receipt, memorandum, or note in writing, con- firming such lease, is signed by the person accepting such rent, or some other person by him thereunto lawfully authorised, such acceptance shall, as against the person so accepting such rent, be deemed a con- firmation of such lease. By sect. 3, where, during the continuance of the possession taken under any such invalid lease, as in the said first-recited Act mentioned, the person for the time being entitled (subject to such possession as aforesaid) to the hereditaments comprised in such lease, or to the possession, or the receipt of the rents and profits thereof, is able to confirm such lease without variation, the lessee, his heirs, executors, or administrators (as the case may require), or any per- son who would have been bound by the lease, if the same had been valid, shall, upon the request of the person so able to confirm the same, be bound to accept a confirmation accordingly; and such confirmation may be by memorandum, or note in writing, signed by the persons confirming and accepting respectively, or by some other persons by them respectively there- unto lawfully authorised ; and after confirmation and acceptance of confirmation, such lease shall be valid, and shall be deemed to have had from the granting thereof the same efi'ect as if the same had been originally valid. 11. Leases by Estoppel. The creation of a lease by estoppel is of a singular character, and is therefore reserved for a separate Digitized by Microsoft® CH. IV. J HOW DEMISES ARE MADE. 157 section. It arises from the general doctrine of estop- pel that a man is not permitted to allege or prove anything in contradiction or contravention of his own deed (e). Thus a lessor is estopped by the lease which he has made from denying his competency to make it, and the tenant, upon the other hand, is estopped from disputing his lessor's title, and hence the relation of landlord and tenant is created between them by law (_/). " And if one makes a lease for years by inden- ture of lands wherein he hath nothing at the time of such lease made, and after purchases those very lands, this shall make good and unavoidable his lease, as well as if he had been in the actual possession and seisin thereof at the time of such lease made ; because he having by indenture expressly demised those lands, i^ , by his own act, estopped and concluded to say he did not demise them, then there is nothing to take off or impeach the validity of the indenture, which expressly affirms that he did demise them; and consequently the lessee may take advantage thereof whenever the lessor comes to such an estate in those lands as is capable to sustain and support that lease " (^). And when the estoppel becomes good in point of interest — that is, when the lessor acquires the land by pur- chase or otherwise — the heir of the lessor, and persons claiming by assignment from the lessor, are bound by the estoppel (Ji). The law of estoppel also creates a reversion in fee-simple by estoppel in the lessor, which passes by descent to his heir, and by purchase to his assignee or devisee ( i ). But if, upon the face (e) Lyon v. Reed, 13M. & W. 285. (g) Bac. Abr. tit. Lease (0). (/) Darlington v. Pritohard, 4 (k) Trevivau v. Lawrence, 1 M. & G-. 783 ; Green v. James, 6 Salk. 276 ; Goodtitle ■;;. Morse, 3 M. & W. 656. But if the lessor T. R. 371 ; Doe d. Downe v. is trustee for the public under a Thomson, 9 Q. B. 1043. public Act which does not give (i) Guthbertson v. Irving, 4 H. him power to act, he will not be & N". 758, 28 L. J. Ex. 306, 29 estopped. Fairtitle v. Gilbert, 2 ib. 485. T. R. 169. Digitized by Microsoft® 158 CREATION OF TENANCY. [part I. of the lease, the real title or want of title of the lessor appears, or any interest passes, there will be no estoppel (J). So also the tenant, so long as he retains possession, is estopped from denying his lessor's title (k) ; but in an action against him by the landlord, the tenant may show that the landlord's title has expired (I). So, if he is actually evicted by the title paramount of a third party, such eviction is pleadable in bar to a demand of rent by the lessor (m). An under-lease made by a lessee who had no legal interest operates as an estoppel (n). As to the effect of recitals in a lease in creating an estoppel, see ante, Recitals. (j) Cuthbertson v. Irving, supra; Pargeter v. Harris, 7 Q. B. 708 ; Greenaway v. Hart, 14 C. B. 340 ; but see Morton v. Woods, 3 Q. B. 658, 37 L. J. Q. B. 242. (k) Cuthbertson v. Irving, supra; Dolby v. Isles, 11 Ad. & E. 335 ; Phipps i». Sculthorpe, 1 B. & Ad. 60 ; Levy v. Lewis, 28 L. J. C. P. 144, 30 ib. 42 ; Wood V. Day, 7 Taunt. 646 ; Beckett v. Bradley, 7 M. & G. 994 ; Delaney v. Fox, 1 C. B. N.S. 166. {1} Claridge v. Mackenzie, 4 M. & G. 143 ; Doe d. Leeming v. Skirrow, 7 A. & E. 157 ; Downes V. Cooper, 2 Q. B. 263 ; Neave V. Moss, 1 Bing. 363; Doe d. Jackson v. Ramsbottom, 3 M. & S. 516. (m) Delaney v. Fox, 2 C. B. N. S. 768. (to) Doe d. Prior v. Ongley, 10 C. B. 25. Digitized by Microsoft® PART II. CONTINUATION OF TENANCY. DIVISION L— RIGHTS OF LANDLORD. CHAPTEE I. PAYMENT OF KENT. 1. Time when Payable, ... 159 2. Mode OF Payment, ... 162 3. Deduotions- land tax, income-tax, ... 164 ... 166 Deductions —continued. sewers' rates, poor-rates, other rates, tithe rent-charge, .. 167 .. 167 .. 168 .. 169 4. Appoetionment, .. 170 1. Time when Payable. With respect to the certainty of the time when rent Time of pay- is to be paid, where the reservation is half-yearly or ™^''*- quarterly, but no specific days are mentioned, the time of payment must be computed by the habendum ; and in a case in which rent was payable by a parol demise " from Ladyday following," evidence of the custom of the country was admitted to show that. Digitized by Microsoft® 160 CONTINUATION OF TENANCY. [PAET II. by " Ladydaj," Old Ladyday was intended (a). If the reservation be general, and no mention be made of half-yearly or quarterly payments, nothing is due till the end of the year (b) ; and where a reservation was general in the written agreement of demise, but the landlord afterwards asked the tenant how he would like to pay the rent, and the tenant replied quarterly, it was held that the rent was still due annually, and not quarterly, although rent had been actually paid quarterly (c). Where rent is payable quarterly, it will be intended to be payable by equal portions (d), and will be due on the first of the days mentioned in order of time, without regard to the arrangement of the words (e). Where the reservation was " quar- terly or half-quarterly, if desired," it was held that th§ landlord, having received the rent quarterly for the first twelve months, could not distrain for a half- quarter's rent without notice (/). An agreement was entered into on the 31st of January, by which the tenant agreed to become tenant at the customary time of entry (which was the 12th of May), and to pay the annual rent at the usual time (which was Michaelmas), as agreed upon ; and it was held that this did not necessarily mean that the rent should be payable at the end of the year from the time of entry, but at the customary time of Michael- mas (^). (a) Doe d. Hall v. Benson, 4 B. {d) Com. Dig. Kent (B) 8 ; & A. 588. Hutchins v. Scott, 2 M. & W. (6) Cole V. Sury, Latch. 264. 809. See also Comber v. Howard, 1 (e) Hill v. Grange, Plowd. 171. C. B. 440 ; Turners. AUday, Tyr. (/) Mallam v. Arden, 10 Bing. & Gr. 819 ; Collett v. Curling, 10 299. Q. B. 785. (g) Gore v. Lloyd, 12 M. & W. (c) Turner v. Allday, Tyr. & 463. Gr. 819 ; Comber v. Howard, 1 M. & Gr. 440. Digitized by Microsoft® CH. I.] PAYMENT OF RENT. ]61 Sometimes rent is reserved payable in advance. When this is the case, it should be clearly expressed whether the payment in advance is intended to refer to the cm-rent quarter at the time of the reservation, or to each successive quarter during the term {h). A rent may also be reserved to commence before the lessee is to enter on all the land demised, as where there is a lease to commence in futuro of Blackacre, and in prcBsenti of Whiteacre, rendering rent payable before the commencement of the term in Blackacre. Here the rent, being an entire thing, is payable according to the reservation (i). Rent reserved upon a lease is not payable until the midnight of the day specified in the lease for payment of it (J). Though where, in order to create a for- feiture, it is necessary to make a demand, the demand must be made before sunset {k). Where the terms of the reservation were, " The yearly rent to be £110, and the rent shall be payable in advance if the landlord require the same," and no days of payment were specified, but at the end of the quarter the landlord demanded the quarter's rent, and, upon non-payment, distrained for the whole yearly rent, it was ruled that he was only entitled to distrain for the quarter's rent (J). (h) Holland v. Falser, 2 Stark, Co. 127. See also Com. Dig. 161 ; Hopkins r. Helmore, 8 A. Pleader (2 W. 49), Maund's case, & E. 463. See M'Leish v. Tate, 7 Co. R. 28 b ; Fabian's case, 1 Cowp. 781. Leon. 305 ; Wood & Chiver's case, (i) Gilb. on Rents, 25. 4 Leon. 179 ; Acockst;. Phillips, 5 0') Cutting V. Derby, 2 Wm. H. & N. 183; Collier v. Nokes, 2 Bl. 1077; Leftley r. MiUs, 4 T. C. & K. 1012. See also ^os«. Part E. 170. 3, c. 3, s. 1, pp. 257, 258. (le) Duppa V. Mayo, 1 Wm. (I) Clarke v. Holford, 2 C. & Saund. 287; Tincklerv. Prentice, K. 540. 4 Taunt. 549 ; Clun's case, 10 Digitized by Microsoft® 162 CONTINUATION OF TENANCY. [PART II. Where the tenant was to pay the last half-year's rent in advance, which was to be considered as reserved and due on a certain day preceding, if the landlord should see cause for such a demand, it was held that he might demand the rent and distrain for it between the day named and the expiration of the tenancy, without demand previous to the day named (ni). If the tenant pay his rent before it is due, it is voluntary and not satisfactory (??). The statute of Anne, which does away with attornment (o), protects the tenant from any claim by an assignee of the rever- sion where no notice has been given ; but where the tenant paid rent to his landlord before it was due, and before it was due received notice from the assignee, it was held that the tenant was still liable to the assignee for the rent (p). 2. Mode of Payment. Rent is to be paid on the land (q), except in the case of a covenant to pay rent, for then the covenantor must pay or tender the money to the covenantee, according to his covenant (r). It is said that, like any other species of debt, rent may be paid by a remittance through the post (s). (m) "Witty V. Williams, 12 W. 23i ; Crouch v. Fastolfe, Sir T. R. 755, 10 L. T. N.S. 457, Q. B. Raymond, 418, Com. Dig. Pleader (re) Clun's case, supra. (2 W. 49). (o) See Attornment, Part 4, ^. ()■) Haldane i;. Johnson, 8 1, s. 1, p- • Exoh. 689. (23) iJe Nichols, L. E. 5 C. P. (s) See Woodfall, L. & T. 9th 589, 39 L. J. C. P. 296. edit. 359 ; Smith, L. & T. 2d ({) Eowei;. Young, 2 B. & B. edit. 168. Digitized by Microsoft® CH. I.J PAYMENT OF RENT. 163 A demand for rent is even higher than a demand upon a bond or other specialty, although in case of death it ranks against the executor with specialty debts (t). So when the landlord takes a bond, bill, or note, this will not bar him of his remedies for rent (u). Receipts for rent, like any other receipt, require a penny stamp if the sum amounts to £2 and up- wards (»). 3. Dbduotions. Although no set-off or claim for damages sustained by the lessee can be set-off against a claim for rent due to the lessor, unless by some express agreement, yet there are several payments in the nature of cross demands which the lessee is entitled to have deducted from the amount of the rent, and to have considered as payment pro tanto. The general rule, however, is that the lessee can treat as a discharge of the rent only those payments to third parties which are made in satisfaction of a charge on the land or of a debt of the lessor (w). In Graham v. AUsopp {x), Rolfe, B., in giving the judgment of the Court, said, " The principle upon which these cases rest is this — the immediate landlord is bound to protect his tenant from all paramount claims ; and when, there- (i) Thompson v. Thompson, (v) See the 33 & 34 Vict. c. 97, 9 Price, 471 ; BuUer's N. P. s. 120, and schedule " Eeoeipt." X82. (w) Taylor v. Zamira, 6 Taunt. (m) Davis V. Gyde, 2 A. & B. 524 ; Sapsford v. Fletcher, 4 T. 624; Worthington v. Wigley, 3 E. 511; Johnson v. Jones, 9 A. Bing. N. C. 454 ; Murray v. King, & E. 809 ; Carter v. Carter, 5 5 B. & A. 165 ; Parrottv. Ander- Bing. 406 ; Boodle v. Campbell, son,' 7 Exch. 93 ; Drake u. 7 M. & G. 386. Mitchell, 3 East. 251. (k) 3 Exch. 186-198. Digitized by Microsoft® 164 CONTINUATION OF TENANCY. [PAET II. fore, the tenant is compelled, in order to protect him- self 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 considered as having been authorised by the landlord so to apply his rent due or accruing due. All such payments, if incapable of being treated as actual payment of rent, would cer- tainly give the tenant a right of action against his landlord as for money paid to his use, and so would, in an action of debt for the rent, form a legitimate subject of set-off. And though in a replevin a general set-off cannot be pleaded, yet the Courts have given to the tenant the benefit of a set-off as to payments of this description, by holding them to be in fact pay- ments of the rent itself or of part of it." The ground upon which the landlord is presumed to authorise these payments is that he impliedly under- takes to protect the tenant against claims in respect of them (y). But a mere claim by a mortgagee to the rent is not sufficient to raise a presumption of an autliority from the lessor to pay the rent (z). Laud-tax. By the 38 Geo. Ill, c. 5, s. 17, it is enacted, " That the several and respective tenant or tenants of all houses, &c., which shall be rated by virtue of this Act, are hereby required and authorised to pay such sum or sums of money as shall be rated upon such houses, &c., and to deduct out of the rent so much of the said rate as, in respect of the said rents of any such houses, &c., the landlord should and ought to pay and bear ; and the said landlords, both mediate and immediate, according to their respective interests, (y) JoQea v. Morris, 3 Exch. (3) Wilton v. Dunn, 17 Q B. 742. 294. Digitized by Microsoft® CH. I.J PAYMENT OF KENT. 165 are hereby required to allow sucli deductions and pay- ments upon the receipt of the residue of the rents." By sect. 18, "Every tenant paying the said assess- ment or assessments last mentioned shall be acquitted and discharged of so much money as the said assess- ment or assessments shall amount unto, as if the same had actually been paid unto such person or persons to whom his rent shall have been due and payable ; " with power to the commissioners of land-tax, or any two of them, to settle, as they shall think fit, any differences between landlord and tenant, or any other, concern- ing the said rates. When they have decided any such difference, the Court of Chancery will not re- examine it. Sect. 35 provides, " That nothing in this Act con- tained shall be construed to alter, change, or deter- mine, or make void, any contracts, covenants, or agree- ments whatsoever between landlord and tenant, or any other persons, touching the payment of taxes and assessments in England, Wales, and Berwick-upon- Tweed, anything herein contained to the contrary notwithstanding. ' ' By sect. 4 of the above statute, the tax is to be rated upon all hereditaments, &c., and upon " all and every person or persons, &c., having or holding, &c., such pre- mises in respect thereof" (a). As between the tenant and the public, it is a tenant's tax {b) ; but the tenant is entitled to deduct out of the current or accruing rent, at the time when it is payable, so much of the amount {a) SeejDcrBayley, J., Ward ». (J) R. v. Mitcham, Cald. 276 Const, 10 B. & C. 647 ; Chelsea a ; Watson v. Home, 7 B. & C. Waterworks v. Bowley, 17 Q. B. 285; Ward v. Const, 10 B. & G. 358, 20 L. J. Q. B. 520. 469 Digitized by Microsoft® 166 CONTINUATION OF TENANCY. [pART II. payable for the tax as tlie landlord would have to pay upon the rent reserved (c) ; and this is so even where the premises have been improved in value, — the tenant having to pay the tax upon the increased value, but being only entitled to deduct the old deduction upon the rent reserved (d). As to the effect of special clauses in a lease as to the payment of taxes, see ante, p. 122, Part 1, c. 4, s. 7, Covenant to Pay Rates and Taxes. Income-tax. By the Property- Tax Act (e), occupiers of lands, &c., paying the duty of seven pence in the pound on the annual value of lands, &c., in respect of the property thereof, may deduct seven pence in the pound on the amount of their rent out of the first payment after- wards made on account of it, and the landlords are to allow the deduction under a penalty of £50, and any stipulation made or to be made for payment in full, without allowing such deduction, will be void (/) ; and it is by the same statute enacted, " That no contract, covenant, or agreement between landlord and tenant, or any other person, touching the payment of taxes and assessments to be charged on their respective pre- mises, shall be deemed or construed to extend to the duties charged thereon under this Act, nor be binding contrary to the intent and meaning of this Act ; but that all such duties shall be charged upon and paid (c) Andrew v. Hancock, 1 B. & (e) 5 & 6 Vict. c. 35, s. 60, B. 37. Rule 4-9. (d) Yeo t). Lemau, 2 Str. 1191, (/Ud. s. 103. See Fuller v. 1 Wils. 21 ; Hyde v. Hill, 3 T. R. Abbott, 4 Taunt. 105 ; Tinkler v. 377; Grahamj). Wade, 16East.29; Prentice, 4 Taunt. 549 ; Howe v. Whitfield «). Brandwood, 2 Starkie, Synge, ]5 East. 440; Att.-Gen. 441 ; Watson v. Holme, 7 B. & v. Shield, 3 H. & N". 834, 28 L. C. 285 ; Ward v. Const, 10 B. & J. Ex. 49 ; Festing v. Tayler, 3 B. C. 649, 657 ; Smith v. Humble, & S. 231, 32 L. J. Q. B. 41. See 15 C. B. 321. also Abadam v. Abadam, 33 Beavan, 475, 33 L. J. Ch. 593. Digitized by Microsoft® CH. I. J PAYMENT OF KENT. 167 by the respective occupiers, subject to such deduc- tions and repayments as are by this Act authorised and allowed, and all such deductions and repay- ments shall be made and allowed accordingly, not- withstanding such contracts, covenants, or agree- ments " (y). The property-tax, like the land-tax, is a tenant's tax, as between the tenant and the public (Ji) ; and if he omit to deduct it in his next payment of rent, he cannot afterwards recover it as money paid to ±he use of the landlord {{). By the 27 Vict., c. 18, s. 15, he may now deduct it during the period through which the rent was accruing due. A payment of income-tax by the tenant operates as a payment pro tanto of the rent (_;'). The sewers' rate, though not imposed dii-ectly by Sewers' rates. Act of Parliament, and therefore not to be considered as a parliamentary tax, may be levied on the tenant or occupier of the premises subject to it. And after he has paid it, he is entitled to deduct from the next payment of his current rent so much of the rate as the landlord ought to bear, in like manner as in re- spect to land-tax {k). The poor-rate is not a tax on the land, but a per- Poor-rates, sonal charge in respect of the land. In general, the occupier is liable to pay this tax, for the rate is a charge on the occupier in respect of his possession, and not {g) 5 & 6 Vict. c. 35, s. 73. (Ic) See ante, Land-tax, p. 164. (A.) Gumming v. Bedborough, Smitti v. Humble, 15 C. B. 321 15 M. & W. 438. Palmeri). Earith, 14 M. & W. 428 (i) Ibid. Brewster v. Kitchell, 2 Salk. 616 (j) Franklin v. Carter, 1 C. B. Waller v. Andrews, 3 M. & W. 750, cited 15 M. & W. 441. 312. Digitized by Microsoft® 168 CONTINUATION OF TENANCY. [PAET II, upon the lessor in respect of the rent received (J). A landlord cannot be rated to the poor, even in respect of houses let to tenants who have been excused their rates on account of their poverty {m). By the Small Tenements' Rating A.ci{n), however, the landlord may be rated instead of the occupier, where the rate- able value of the premises does not exceed £6. By sect. 7, such occupiers (whether paying such rates voluntarily or by compulsion) may deduct the amount, together with all costs and charges they may have in- curred on account thereof, from the rent payable in respect of such tenements, and such amounts shall be deemed debts due from such owners to such occupiers, and be recoverable by action. With respect to tene- ments in parishes wholly or partly in a parliamentary borough, the liability of the landlord in this respect has ceased under the Eeform Act of 1867, except as therein mentioned {o). By the proviso of sect. 6, it is enacted, that where the occupier under a tenancy sub- sisting at the time of the passing of this Act of any dwelling-house or other tenement, which has been let to him free from rates, is rated and has paid rates in pursuance of this Act, he may deduct from any rent due, or accruing due, from him in respect of the said dwelling-house or other tenement, any amount paid by him on account of the rates to which he may be rendered liable by this Act. other rates. Besides the poor-rate, there are various rates charged upon the occupiers of premises rateable to the (I) Bowls V. Gells, Cowp. 452, place where owners are made 1 Dougl. 304, 43 Eliz. c. 2, a. 1. liable to be rated to the relief of (m) Rex V. The Hull Dock Co., the poor, under the provisions of 3 B. & C. 516. any local Act. See also Davis on (n) 13 & 14 Vict. c. 99. the Law of Registration and Elec- (o) 30 & 31 Vict. 0. 102, g. 6. tions, p. 233, note. This Act does not apply to any Digitized by Microsoft® OH. I.] PAYMENT Of RENT. 169 relief of the poor. The chief of these are the paving, watching, lighting, and water rates, the highway rates, the county and borough rates. These and others are, in general, regulated by the principles which govern the assessment to the poor-rates. Under the Tithe Commutation Acts, the rent-charge. Tithe rent- which is substituted in lieu of the tithes, is charged ° ^'^^^' upon the land, and may be recovered by distress. Neither the landlord nor the tenant is, under these statutes, personally liable to pay it ; but if the latter pays it, he may deduct it from his rent, unless he has agreed with his landlord to take the charge upon himself (jo). By the 14 & 15 Vict. c. 25, how- ever, a convenient remedy is given to the landlord or succeeding tenant who is obliged to pay the rent- charge which ought to have been paid by the previous tenant. It is provided by sect. 4 of this Act, that " if any occupying tenant of land shall quit, leaving un- paid any tithe rent-charge for or charged upon such land, which he was by the terms of his tenancy or holding legally or equitably liable to pay, and the tithe-owner shall give or have given notice of pro- ceeding by distress upon the land for recovery thereof, it shall be lawful for the landlord, or the succeeding tenant or occupier, to pay such tithe rent-charge, and any expenses incident thereto, and to recover the amount or sum of money which he may so pay over against such first-named tenant or occupier, or his legal representatives, in the same manner as if the same were a debt by simple contract, due from such first-named tenant or occupier to the landlord or tenant making such payment." ip) See the 6 & 7 Will. IV. hoofe v. Daubaz, 4 E. & B. 230, S. 0. 71, ss. 67, 80, 81 ; and Griffin- C. in error, 5 E. & B. 746. Digitized by Microsoft® 1 70 continuation of tenancy. [pakt ii. 4. Apportionment. The lessee's liability to pay rent according to his agreement may be altered either by act of the parties or by act of law: — 1. Where the reversion of the lessor becomes severed by alienation. 2. Where the lessee's interest in part of the estate is destroyed, and the rent is payable only in respect of the residue. 3. Where the interest of the lessee expires before his rent becomes due. 4. Where the lessor dies before the rent becomes due, but the lessee's interest does not thereby expire. 1. As the rent is incident to the reversion, whenever the reversion is severed by act of the parties, the rent shall be apportioned {q) ; but the lessee's concurrence to the apportionment is necessary, unless it be settled by a jury (r). The rent will also be apportioned in the case of a severance of the reversion by act of law (s). 2. Bent will be apportioned where the lessee's in- terest in part of the thing demised is extinguished either by the act of parties, the act of law, or the act of Grod. If the tenant surrender a portion of his estate, or if the lessor enters upon part of the tenant's land for a forfeiture, or if part of the land be re- covered in an action for waste, the rent shall be apportioned (<). If the tenant be evicted out of a part of the land by force of a paramount title, the rent (3) Co. Litt. 1 48 a ; CoUina v. case, Dyer, 4 B ; Ewer v. Moyle, Harding, 1 EoUs Abr. 234 ; Doe d. Cro. Eliz. 771. Vaugban v. Meyler, 2 M. & S. 276. (t) Smith v. Malings, Cro. Jao. (r) Blisa v. CoUinga, 5 B. & 160; Fishe v. Campion, 1 Rolls Aid. 876. Abr. 234,1. 48,235,1. 20 ; Walker's (s) Moody V. Garnon, 1 Rolls case, 3 Rep. 22, 1 RoUs Abr. 325, Abr. 237, 1. 3, 1. 12; Rushen'a 1. 23, 25. Digitized by Microsoft® CH. I. J PAYMENT OF KENT. 171 will be apportioned ; but if he be evicted wrongfully by the landlord, the rent will be suspended for the whole, and will not be apportioned (u). Where a lease, not under seal, was made of lands, a portion of which was already leased to another in possession for a longer period, it was held that the lease was void as to the portion before leased, and that the rent could not be apportioned (v). But where the second lease was under seal, the case was held to be different, because such a lease passed the reversion with the rent thereon (w). Where the lessor fails to fulfil his agreement in the chief object which had induced the lessee to become a party to it (as where he fails to give the exclusive privilege of sporting), the lessee cannot be said to have enjoyed under the agreement ; and in an action for use and occupation, the tenant may show an evic- tion of part of the premises, and the amount of rent which the tenant ought to pay may be ascertained by a jury (x). It seems that where part of land is lost to the lessee by the act of God, he may insist that the rent be apportioned, — as if the sea break in and overflow a part of the land, the rent shall be apportioned (y). Where lands and goods are let at an entire rent, and the (m) Smith v. Malings, Cro. Jao. missioners of Ireland v. O'Connor, 160 ; Walker's case, 3 Eep. 22 ; 9 Ir. Com. L. E. 242. Stevenson v. Lambard, 2 East. (w) Ecol. Commissioners of Ire- 675; Boodle v. Campbell, 7 M. & land v. O'Connor, 9 Ir. Com. L. G. 386. See also Morrison v. R. 242. Chadwiok, 7 C. B. 283 ; Newton (x) Tomlinson v. Day, 2 B. & V. Allin, 1 Q. B. 518. B. 680. See the judgment of the (v) Neale v. Mackenzie, in Court by Lord Denman in Neale error, 1 M. & W. 747 ; Holgatev. v. Mackenzie, 1 M. & W. 764. Kay, 1 C. & K. 341 ; Eccl. Com- {y) 1 Rolls Abr. 2S6, 1. 46. Digitized by Microsoft® 172 CONTINUATION OF TENANCY. [PAET II. tenant is evicted from the lands, no apportionment of the rent can be made for the goods, as rent issues from the land alone (z). In Salmon v. Matthews, 8 M. & W. 827, however, it appears to have been thought that the rent might be apportioned ; but the case was decided on the ground that there was evidence for the jury to infer a fresh agreement to pay for the use of the goods. 3. Where the interest of the lessee expires before his rent becomes due, it cannot be apportioned (a). But by the 11 Geo. II., c. 19, s. 15, after reciting " that where any lessor or landlord having only an estate for life in the lands, tenements, or heredita- ments 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 land- lord, 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 for the same ; " it is enacted, " That where any tenant for life shall happen to die before or on the day on which any rent was reserved or made pay- able upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, the executors or administrators of (2) Emott's case, Dyer, 212 b, case, 10 Rep. 127 b ; Jenner v. in margin ; Collins v. Harding, Morgan, 1 P. W. 392 ; Edwards Cro. Eliz. 606 ; Cadogan v. Ken- v. Countess of AVarwick, 2 P. W. nett, Cowp. 432; Gilb. Rents, 176; Hay v. Palmer, ib. 502; 175; Williams f. Haywood, 1 E. Lord Strafford u. Lady Wentworth, & E. 1040, 28 L. J. Q. B. 374. 1 P. W. 180 ; Lord Rockingham (a) Countess of Plymouth v. v. Penrice, ib. 177 ; Slack v. Throgmorton, 1 Salk. 65 ; Cluu's Sharp, 8 A. & E. 366. Digitized by Microsoft® CH. I.J PAYMENT OF RENT. 173 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, &c., 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 afore- said, making all just allowances, or a proportionable part thereof respectively." A tenant in tail is within the statute, and his executors are entitled to an apportionment (b). ISTo apportionment of rent takes place as between the heir and the personal representatives of a tenant in fee, but the heir is entitled to the whole rent (c). Nor does the statute apply to a case where a tenancy from year to year has been originally created by the owner of the fee, and the tenant for life claiming under the lessor dies ; for his death does not determine the tenancy {d). "Where a lease made by a tenant for life or in tail does not terminate with his death, as if made in pursuance of a power or conformably with a statute, the rent is not apportioned; but if it terminate with his death, an apportionment takes place (e). By 4 & 5 Will. IV., c. 22, s. 1, " Rents reserved and made payable on any demise or lease of lands, (5) Whitfield V. Pindar, cited (e) Symous v. Symona, Madd. in 2 Bro. C. C. 662, 8 Ves. & Geld. 207 ; Clarkaon v. Earl of 311. Scarborough, 1 Swana. 354, note ; (c) Re Clulow, 3 K. & J. 689, Strafford v. Wentworth, Free. 26 L. J. Ch. 513 ; Lord Rooking- Ch. 555; ex parte Smythe, 1 ham V. Penrice, 1 P. W. 177. Swana. 337. See further notes to 2 {d) Catley v, Arnold, 28 L. J. Chitty's Statutes, ' ' Landlord and Ch. 352 ; Mills v. Trumper, L. K. Tenant," p. 1122. 4 Ch. Ap. 320. Digitized by Microsoft® 174 CONTINUATION OF TENANCY. [PART II, tenements, or hereditaments, and 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 hereditaments, shall, so far as respects the rents re- served 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 within the provisions of the said recited Act" (11 Geo. II., c. 19). By sect. 2, " All rents-service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power (and which leases shall have been granted after the passing of this Act), and all rents-charge, and other rents, annuities, pensions, dividends, moduses, compositions, 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, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, 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 whatsoever of the interest of any such person, he or she, or his or her executors, administrators, or assigns, shall be entitled to a proportion of such rents, annuities, pen- sions, dividends, moduses, compositions, and other Digitized by Microsoft® CH. I.j PAYMENT OF KENT. 175 payments, accordiDg to tlie time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case maybe), in- cluding 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, annuities, pensions, dividends, moduses, compositions, and other payments being made ; and 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 apportioned paits of the said rents, annuities, pensions, dividends, moduses, compositions, 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, annuities, pensions, dividends, moduses, compositions, and other pay- ments, if entitled thereto, but so that persons liable to pay rents reserved by any lease or demise, and the lands, tenements, and hereditaments comprised there- in, shall not be resorted to for such apportioned parts specifically as aforesaid, but the entire rents of which such portion shall form 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 sect. 3, " The provisions herein contained shall not apply to any case in which it shall be expressly stipulated that no apportionment shall take place, or to annual sums made payable in policies of assurance of any description." Digitized by Microsoft® 176 CONTINUATION OF TENANCY. [pAET II. The provisions of this Act are extended to rent- charges payable under 6 & 7 Will. IV., c. 71, s. 86, and to rent-charges payable under 4 & 5 Vict., c. 3.5, s. 50. The statute extends the doctrine of apportionment to rents, annuities, dividends, and other payments coming due at fixed periods (_/). It also applies to rents, &c. , reserved by leases granted after the Act under a power given before the Act(^). It only applies to rents reserved by instruments in writing (k). The statute does not apply where the party entitled to the rent himself determines the lease during a current quarter (i). A testator gave the residue of his real and personal estate to trustees upon trust to receive and aceumulate the rents and profits till his nephew should attain twenty-one, when he was to be put into possession for his life. It was held that the trustees were entitled to an apportionment of the rents up to that period (_;'). By the Apportionment Act, 1870 (k), after reciting the 11 Geo. II., c. 19, the 4 &5 Will. IV., c. 22, the 6 & 7 Will. IV., c. 72, 14 & 15 Vict., c. 25, and the 23 & 24 Vict., c. 154, it is enacted by sect. 2, that from and after the passing of this Act, all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an (/) St Aubyn v. St Aubyn, 30 320. But see infra, 33 & 34 Vict. L. J. Ch. 917. c. 35. (g) Plummer v. Whitely, I (i) Oldershaw v. Holt, 12 A. & Johns. 585, 29 L. J. Ch. 247 ; E. 690 ; Hall v. Burgess, 5 B. & C. Wardroper v. Outfield, 33 L. J. 332. But see Bridges v. Potts 17 Ch.605; Llewellyn D. Rous, L. R. C. B. N.S. 314, 33 L. J C P 2 Eq. 27, 35 Beav. 591. 338. (h) In re Markby, 4 M. & Craig, (j ) Wheeler v. Tootel, L. E. 3 484 ; Cattley v. Arnold, 1 John. & Eq. 571, following St Aubyn v Hemming, 651, 28 L. J. Ch. 353; St Aubyn, 1 Dr. & Sm. 611. Mills V. Trumper, L. R. 4 Ch. Ap. (h) 33 & 34 Vict. o. 35 Digitized by Microsoft® CH. I,J PAOIENT OF KENT. 177 instrument in writing or otherwise), shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. By sect. 3, the apportioned part of any such rent, annuity, dividend, or other payment, shall be payable or recoverable, in the case of a continuing rent, annuity, or other such payment, when the entire portion of which such apportioned part shall form part shall become due and payable, and not before ; and in the case of a rent, annuity, or other such payment determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable, if the same had not so determined, and not before. By sect. 4, all persons, and their respective heirs, ex- ecutors, administrators, and assigns, and also the execu- tors, administrators, and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same remedies at law and in equity for recovering such apportioned parts as aforesaid, when payable (allowing proportionate parts of all just allowances), as they respectively would have had for recovering such entire portions as aforesaid, if entitled thereto respectively; provided that persons liable to pay rents reserved out of or charged on lands, or other hereditaments of any tenure, and the same lands, or other hereditaments, shall not be resorted to for any such apportioned part forming part of an entire or continuing rent as aforesaid specifically, but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir, or other person, who, if the rent had not been appor- tionable under this Act, or otherwise, would have been entitled to such entire or continuing rent, and such M Digitized by Microsoft® 1 78 CONTmUATION OF TENANCY. [PAKT II, apportioned part sliall be recoverable from such beir, or other person, by the executors or other parties en- titled under this Act to the same, by action at law or suit in equity. By sect. 5, in the construction of this Act : — The word "rents" includes rent-service, rent- charge, and rent-seek, and also tithes, and all periodical payments or renderings in lieu of, or in the nature of rent or tithe. By sect. 7, the provisions of this Act shall not extend to any case in which it is, or shall be ex- pressly stipulated, that no apportionment shall take place. 4. Where the lessor dies before the rent becomes due, but the lessor's interest does not thereby expire, the rent is payable to the heir or remainder-man. If the lessor dies after the rent has become due, it is payable to his executor (I) ; and so of tenant for life, where the lease is not determined by his death (m) ; for the statutes above cited do not apply to cases where the lease is not determined by the death of the lessor (n). The proper action in which to apportion rent be- tween a lessor and lessee is an action of debt, and it cannot be apportioned in an action of covenant by lessor against lessee, the action being personal ; but in covenant against an assignee whose obligation (l) Duppai). Mayo, 1 Sauud. 287. v. Lady Wentworth, 9 Mod. 21 ; (m) Norris v. Harrison, 2 Mad. 1 P. Wms. 180. Ch. R. 269 ; Earwick v. Foster, (re) Ante, p. 172. Cro. Jao. 227, 233 ; Lord Straffo;;d Digitized by Microsoft® CH. I. J PAYMENT OF RENT. 179 arises from privity of estate, and not of contract, the case is dififerent against him, therefore the rent may be apportioned in an action of covenant (o). (o) SteTenson v. Lambard, 2 K.ist. 575. Digitized by Microsoft® CHAPTER II. REMEDIES FOR NON-PAYMENT. (c) What mat not be Dis- trained — things ahsolutely pri- vileged 196 things conditionally pri- vileged ... ... 201 {d) Where the Distress MAY BE Made ... 201 (e) When the Distress mat BE Made ... 204 (/) HowA Distress SHOULD BE Made 207 ig) What to be Done with it 211 (7i) Tenant's Remedies — when no rent is due ... 221 distraining for more rent than is due ... ... 221 twice for the same rent... 221 for excessive distress ... 222 things not the subject of distress 223 for other illegal acts ... 224 rescue ... ... ... 225 replevin 225 1. Action. Action. Iq order to enforce payraent of the rent in arrear, tlie landlord may bring an action of either debt for use and occupation or covenant (a). If the demise is not by deed, an action of covenant (5) will not lie (c) ; but the landlord may bring an action of debt on simple contract (rf), or of assumpsit for the use and 1. action — use and occupation 180 debt 182 2. Distress — definition of 183 (a) Who mat Distrain— joint-tenants 185 coparceners 186 tenants in common 186 husband and wife 187 tenant pur autre vie 188 tenant by elegit 188 mortgagee 188 agents, bailiffs, and re ceivers 189 executors and adminis trators 190 sequestrators 192 (I) What mat be Dis TRAINED— general rule 192 growing crops, hay, straw, Sfc 193 (a) Since the Common Law Procedure Act, 1852, an action for use and occupation may be considered either as an action on the case, founded on 11 Geo. II. c. 19, s. 14 (see infra), or as an action of debt at common law. (5) As to what words consti- tute a covenant, see ante, pp. 114, 116. (c) If there is a mere agree- ment by deed to demise, an action for use and occupation may be maintained. Elliot v. Rogers, 4 Esp. 59 ; Gudgen v. Bessett, 6 E. & B. 986. (d) Wilkins v. Wingate, 6 T. R. 62 ; Stroud v. Rogers, 6 T. R. 63 n ; Elger v. Marsden, 5 Taunt. 25 i Gibson v. Kirk, 1 Q. B. 850. Digitized by Microsoft® CH. II.J EEMEDIES FOE NON-PAYMENT. 181 occupation of the premises. The remedies by debt and covenant existed at common law, bnt the action of assumpsit is given by statute, 1 1 Geo. II. , c. 19, s. 14 (e). By 11 Geo. II., c. 19, s. 14, " To obviate some diffi- ^se and culties that many times occur in the recovery ot rents, vrhere the demises are not by deed, it shall and may be lawful to and for the landlord or landlords, where the agreement is not by deed, to recover a reasonable satis- faction for the lands, tenements, or hereditaments, held or occupied by the defendant or defendants in an action on the case, for the use and occupation of what was so held or enjoyed ; and if in evidence on the trial of such action, any parol demise, or any agreement (not being by deed), whereon a certain rent was re- served, shall appear, the plaintiff in such action shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recovered." An action for use and occupation is always founded on some contract, express or implied (_/), and the defendant must have occupied the premises under such express or implied contract {g). Thus a tenant who agrees to take lodgings, but does not enter, is not liable for use and occupation (Ji). But where there is no express or implied contract, and the defendant is a mere wrong-doer or trespasser, this action will not (e) See Selwyn's Md Prius, 333 ; Hellier v. Silcox, 19 L. J. tit Use and Occupation. Q. B. 295, explained in Church- (/) Birct V. Wright, ] T. E. ward v. Ford, 2 H. & N. 446, 378, 387; Beverley v. Lincoln 449, 450 ; Smith u Elridge, 1 5 C. Gas Light and Coke Co., 6 A. & B. 236 ; Smith v. Twoart, 2 M. & B. 829 ; Gibson v. Kirk, 1 Q. B. G. 841 ; Bailey v. Bradley, 6 C. 850 ; Churchward v. Ford, 2 H. B. 396. & N. 446, 26 L. J. Ex. 354. (h) Edge v. Strafford, 1 C. & J. (g) Marquis of Camden v. Bat- 391 ; Lowe v. Ross, 19 L. J. Ex. terbury, 5 C. B. N.S. 808, 7 Id. 318, 5 Exch. 563 ; Towne v. 864, 28 L. J. C. P. 335 ; Levi v. D'Heindrioh, 13 C. B. 892, 22 L. Lewis, 6 C. B. N.S. 766, 9 Id. J. C. P. 219. 872 ; HaU v. Burgess, 5 B. & C. Digitized by Microsoft® 182 CONTINUATION OF TENANCY. [PAET 11, lie (i) ; nor will such an action lie if it be proved 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 (_/). 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 if he has the power to occupy the premises so far as depends on the landlord. Thus the tenant would be liable for use and occupation, although the premises were destroyed by fire(^). And it is sufficient if the tenant allow another person to occupy (I). If a lease 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 (m). Rent payable in advance must be declared for specially (n). Debt. The action of debt for rent is founded upon privity of contract, express or implied (o), or sometimes upon privity of estate (jc>). Unlike the action for use and occupation, it can be brought where the demise is by (j) Marquis of Camden r. Bat- 576 ; Loft v. Dennis, 1 E. & E. terbury, supra ; Churchward v. 856. Ford, supra ; Tew v. Jones, 13 (l) Ball v. Sibbs, 8 T. R. 327 ; M. & W. 12; Turnerti. Cameron's Bertie v. Beaumont, 16 East. 33; CoalbrookCo.,6 Exeh. 932, 20L. Christy v. Tanaed, 7 M. & w! J. Ex. 71 ; Levi V. Lewis, supra. 127, 9 M. & W. 438, 12 M. & W. ij) Mountnoy v. Collier, 1 E. & 316 ; Waring v. King, 8 M. & W B. 630. 671. (k) See Pindar v. Ainsley, cited (m) Draper v. Crofts, 15 M. & in the judgment in Belfour i'. W. 166. Weston, 1 T. R. 812 ; Baker v. (n) Angell v. Randal, 16 L. T. Holtzappel, 4 Taunt. 45; Leeds N.S. 489. V. Cheetham, 1 Sim. 146; Izon (o) Bull, N. P. 167. V. Gorton, 6 Bing. N. C. 501 ; (p) Lord Ward v. Lumley .5 Packer v. Gibbins, 1 Q. B. 421 ; H. & N. 87, 656, 29 L J Ex Sui-plice^). Farnsworth, 7 M. & G. 322. Digitized by Microsoft® CH. II.J REMEDIES FOR NON-PAYMENT. • 183 deed ( q). At common law, this action did not lie for rent reserved on a freehold lease ( r). But by the 8 Anne, c. 14, s. 4, any persons entitled to rent in arrear on a lease for life or lives, may have an action of debt during the existence of the life, as on a lease for years dm-ing the term. An entry by the tenant on the premises demised is not necessary to support this action, as in the action for use and occupation (s). So an assignee of the term, who has never entered to take possession as assignee, may be liable to an action for the rent {t), but not to an action for use and occupation (m). So a husband is not liable in an action for use and occupation to pay for the enjoyment of a house by his wife dum sola ; such occupation not having been by him, nor at his request {v) ; but he would be liable to an action for the rent, the declara- tion being framed specially according to the facts. By 3 & 4 Will. IV., c. 42, s. 3, a limitation of twenty years is imposed on actions of debt for rent upon an indenture of demise. Rent when due, but not accruing rent, may be attached under the 17 & 18 Vict., c. 125, s. 61 {w). 2. Distress. A distress is the taking of a personal chattel out of Definition of the possession of the wrong-doer, into the custody of ^'^^ress. (o) Gibson v. Kirk, 1 Q. B. 850, 745, 761 ; Williams v. Bosanquet, 474. 1 B. & B. 238. (r) Bishop of Winchester v. (u) How v. Kennett, 3 A. & E. Wright, 2 Lord Raymond, 1056 ; 659 ; Lowe v. Rose, 5 Exch. 556 ; Kelly V. Clubbe, 3 B. & B. 130. Clarke v. Webb, 1 C. M. & R. 29 ; (s) Bellasis v. Burbrick, 1 Salk. Jones v. Reynolds, 7 C. & P. 335. 209 ; Bull V. Sibbs, 8 T. R. 327 ; (v) Richardson v. Hall, 1 B. & Smith t;. Scott, 6 C. B. N.S. 781, B. 50. jper Willes, J. See also Alexander (w) Mitchell v. Lee, 8 B. & S. V. Dyer, Cro. Eliz. 169. 92, L. R. 2 Q. B. 259 ; Jones v. (t) Ringer v. Caun, 3 M. & W. Thompson, 27 L. J. Q. B. 234. 343 ; Burton v. Barclay, 7 Bing. Digitized by Microsoft® 184 CONTINUATION OF TENANCY. [PAET II. the party injured, to procure a satisfaction for the wrong committed (x), and is the remedy most fre- quently resorted to by landlords for obtaining payment of rent in arrear. Inasmuch as, strictly speaking, rent can issue out of real property only, there can be no distress for payments made for the use of personal property, which are sometimes also called rents. When, however, personal and real property are let together, there may be a distress for the rent, because it issues wholly out of the real part of the property demised (y). The thing taken, as well as the process, is some- times called a distress. The rent must be certain, and not subject to condi- tional deductions, or the landlord will not be entitled to distrain (;2r). Neither can he distrain where the amount of rent is not fixed by the demise, although he may do so as soon as it has been ascertained, whe- ther by the actual payment of a certain rent, or in any other manner (a). (a.) Who mat Disteain. Who may In order to warrant a distress, the relation of land- tram. Jqj.^ ^jjjJ tenant must exist. If, therefore, a termor parts with the whole of his interest in the term, whether by assignment or in any other way, reserving a rent, he has no power of distress without a special (k) 3 Bl, Com. 6. 335 ; Hancock v. Austin, 14 C. B. (y) Newman v. Anderton, 2 N. N.S. 634. See Daniel v. Gracie, K. 224. And see Baynes «. Smith, 6 Q. B. 145; Doe d. Eduey v. 1 Esp. N. P. 206. Benham, 7 Q. B. 976. The right (z) Regnart v. Porter, 7 Bing. to distrain may exist by express 451. agreement, although not reserved (a) Knight ». Bennett, 3 Bing. upon what is strictly a rent. See 861 ; Riseley v. Ryle, 11 M. & PoUitt v. Forrest, 11 Q. B. 949. W. 16 ; Watson v. Waud, 8 Exch. Digitized by Microsoft® CH. II.] REMEDIES FOE NON-PAYMENT, 185 clause of distress, because there is no tenancy {b) ; and if he underlet, so as to reserve a reversion to him- self, yet when his own term is expired, his remedy by distress against his under-tenant is gone (c). A ten- ant from year to year, however, underletting from year to year, has such a reversion as will entitle him to distrain (d ). Wliere a party is in possession in contemplation only of a tenancy, there is no demise, and consequently no reversion to which the power of distress can attach (e) ; but, as soon as a tenancy is constituted, and rent is in arrear, the landlord may distrain {/). So also where the landlord has elected to treat the party in possession of his land as a trespasser, he cannot distrain , although the possession be continued up to the day of the distress (ff), nor can he distrain after the expii-ation of a notice to quit, without some evidence, at least, of a renewal of the tenancy (/«). As to the effect of the bankruptcy of the tenant upon the landlord's right to distrain, see post, Part 4, c. 2, s. 2. Joint-tenants are seised per my et per tout ; and Who may dis- iTn • ■ L L j-1 J.X- train — Joint- therelore, as every joint-tenant has an estate m every tenants. part of the rent, he may distrain alone for the whole, although he must afterwards avow jointly with his co- (5) Butt's case, 7 Rep. 101 ; (c) Burne v. Richardson, 4 Lord Mountjoy's case, 5 Rep. 4; Taunt. 720. Earl of Stafford v. Buckley, 2 (d) Curtis v. Wheeler, 1 M. Ves. 170 ; Turner v. Turner, 1 & M. 493. Bro. Ch. Rep. 316 ; Bro. Abr. (e) Hegan v. Johnson, 2 Taunt. Debt, pi. 39 ; Pouletney v. Holmes, 148. Str. 405 ; v. Cooper, 2 Wils. (/) Cox u. Bent, 5 Bing. 182, 375; Smith v. Mapleback, 1 T. 2Moo.&P. 281; Mann?;. Lovejoy, R. 441 ; Hoby v. Roebuck, 7 1 Ry. & M. 355 ; Doe d. West- Taunt. 157; Jalentine v. Deu- moreland i>. Smith, IMan. &R. ion, Cro. Jac. Ill ; Parmen- 137 ; Braithwaite v. Hitchcock, ter V. Webber, 8 Taunt. 593; 10 M. & W. 494. Preece v. Corrie, 5 Bing. 25 ; {g) Bridges v. Smyth, 2 Moo. & Palmer v. Edwards, 1 Doug. P. 740, 5 Bing. 410. 187. (^) Jenner v. Clegg, 1 Moo. & R. 213. Digitized by Microsoft® 186 CONTINUATION OF TENANCY. [PART II, tenants, or make cognisance as their bailiff, and account to them for their respective shares ; and it is immaterial whether he make the distress hy his own hand or the hand of another, and, therefore, he may appoint a bailiff to distrain for the whole rent (e), without the assent of his fellows (j). So the survivor may distrain for the arrears accrued in the lifetime of his deceased co-tenant (/e). Who may distrain — Co- parceners. Co-parceners before partition are considered in law but as one heir (1), and therefore must join in making a distress (m), but after partition they may make several distresses (n). The same rule governs co- heirs in gavelkind, who are parceners by custom (o). One, however, may distrain for rent due to him and his fellows without an actual authority from them, and avow in his own right, and make cognisance as their bailiff (jo). Who may distrain — Tenants in common. Tenants in common, not holding by one title, and possessing several estates, although they may join in an action for rent {q), yet, if they distrain, must make several distresses, and avow separately (r). And where one, holding under two tenants in common, paid the whole rent to one of them, after notice from the other not to do so, it was held that he who gave the notice might distrain for his share of the rent (s). But it seems that, upon a lease by tenants in common. (i) Pullen 6i. Palmer, 3 Salk. 207. (i) Leigh V. Shepherd, 2 B. & B. 465 ; Eohinson v. Hofman, 4 Bing. 562. (Ji:) 2 Rol. Abr. 86. (!) Co. Litt. 163 b. (m) Stedman v. Page, 1 Salk. S90, Gilb. Distress, 161. (n) Co. Litt. 174 b, 195 b. (o) Litt. 88. 241, 265. (p) Leigh v. Shepherd, 2 B. & B. 465. (}) Midgleyr. Lovelace, Carth. 289. {r) Litt. B. 317 ; Whitley v. BobertB, 1 M'Clel. & Y. 107; Pullen V. Palmer, 3 Salk. 207. (s) Harrison v. Baruby, 5 T. K. 246. Digitized by Microsoft® CH. II.J REMEDIES FOR NON-PAYMENT. 187 the survivor may distrain for the whole rent, although the reversion be to the lessors, according to their re- spective interests (i^) ; and one tenant in common may lease his share to another, rendering rent, for which he may distrain as if he had demised to a stranger (u). With regard to the lands of a married woman, the Who may wife can in no case whatever distrain alone, but the Husbandaud husband may in all cases distrain, and even avow wife, alone, during the life of the wife, for rent accruing during the coverture (»). Further, by the 32 Hen. VIII. , c. 37, s. 3, if a man have, in the right of his wife, any estate in fee-simple, fee-tail, or for term of life, of or in any rents or fee-farms, and the same be due, behind, and unpaid in the wife's life, then the husband, after the death of the wife, may distrain for the said arrearages in like manner and form as he might have done if his wife had been then living. It has been held that this statute enables the husband not only to distrain for arrears accrued during the coverture, for which, at the common law, he could have sued in his own name (w), but also for arrears accrued before coverture (cc\ which, previously to the statute, could only have been recovered in an action brought by the husband, not in his own name, but as his wife's personal representative (y). It will be observed that the remedy by distress is given to the husband alone, and is not extended to his executors and administrators {£). (t) "Wallace v. M'Laren, 1 Man. (w) Co. Litt. 162 b, 351 b, & Ryl. 516. Ognel'a Case, 4 Rep. 51. («) Snelgar v. Henston, Cro. {x) Co. Litt. 162 b. Jao. 611. (y) Sharp v. Pool, Bendl. 457. (v) North V. Wyard, 2 Biilst. (z) See Osborn v. Wickenden, 1 233; Bowles v. Poore, Cro. Jac. Saund. 197 ; Ankerstein?). Clarke, 282 ; Wise v. Bellent, ib. 442 ; 4 T. R. 617 ; Parry v. Hindle, 2 PuUen V. Palmer, 3 Salk. 207. Taunt. 181. Digitized by Microsoft® 188 CONTINUATION OF TENANCY. [PAET II. Who may distrain — Tenant pur autre vie. At the common law tenant pur autre vie could of course distrain in the lifetime of the cestui que vie ; and by the 32 Hen. VIIL, c. 37, s. 4, he may distrain for rent in arrear at the death of the cestui que vie. Who may distrain — Tenant by elegit. Tenant by elegit may distrain without attornment so long as the debt is unpaid, and the interest of his execution debtor continues (a) ; but as he is not within the 32 Hen. VIIL, c. 37, his power of distress is gone as soon as the interest of the execution debtor is determined. Thus a tenant by elegit cannot dis- train after the death of the tenant for life for arrears accrued in his lifetime (5). Who may distrain — Mortgagee. A mortgagee can distrain upon the mortgagor in possession only where a tenancy has been created be- tween them, and the rent ascertained (c). And it was held that even where there was a stipulation in the mortgage deed, that, upon a certain event happening, the mortgagee should become tenant to the mortgagor, which event happened, yet the mortgagee could not distrain until he had given notice of his intention to treat the mortgagor as tenant {d). Where the pro- perty mortgaged has been leased before the mortgage, the mortgagee may distrain, immediately after giving notice of the mortgage to the tenant, for rent in arrear at the time of the notice, as well as for that which accrues afterwards ; for the attornment of the tenant is rendered unnecessary by the 4 Anne, c. 16, s. 9, and the notice to the tenant has relation back to the date of the mortgage (e). Where the mortgaged premises (a) Lloyd v. Davies, 2 Exch. 103. Bro. Distr. pi. 72. (b) Pool V. Keel, 2 Sid. 29; Pool V. Duncomb, Bull. N. P. 56. (c) Morton v. Woods, L. E. 3 Q. B. 658, 37 L. J. Q. B. 242. (d) Clowes V. Hughes, L. R. 5 Ex. 160, 39 L. J. Ex. 62. (e) Moss V. Qallimore, Doug. 279 ; Rogers v. Humphreys, 4 Ad. & El. 299. Digitized by Microsoft® CH. II. j EEMEDIES FOB NON-PAYMENT. _ are let by tte mortgagor after the execution of the mortgage, the mortgagee cannot distrain on the tenant until a new tenancy has been created between them, as by the mortgagee accepting rent from the tenant (/), or giving the tenant notice to pay him the rent, in which the tenant has acquiesced (^). In such a case, the rents that have accrued between the commencement of the lease from the mortgagor, and of the new tenancy between the tenant and the mortgagee, cannot be recovered by the mortgagee by distress ; but if the tenant refuse to pay, the mortgagee may evict him, and recover it in the form of mesne profits (k). The distress is generally effected by means of a wBo may bailiff on behalf of the lessor, or other person entitled '!'^'''*"'T- ■ -jv Agents, bai- to distrain. The bailiff need not be a sworn bailiff liffa, receivers. under the 13 Edward I., c. 37 (i). He maybe authorised to distrain by word of mouth (j), except in the case of a corporation aggregate, not having a superior (k) ; and a subsequent ratification of his act by the landlord will be equivalent to a previous appointment (l). If a landlord direct a bailiff to distrain, and then die, and the distress is made after his death, his executors may ratify the act of the bailiff (m). A mere autho- rity to receive the rent will not, however, without (_/") Rogers v. Humphreys, 4 (j) Gary v. Matthews, Salk. Ad. & El. 299. 191 ; Manby v. Long, 3 Leo. (g) Doe d. Chawnert;. Boulter, 6 107. Ad. & El 675; Partington'!). Wood- {k) Randal v. Dean, 2 Lutw. cock,ib. 680;Evansj).Elliott,9 A. Ii9 h ; Vin. Ab. vol. 3, p. &E. 342; Brown v. Storey, 1 Man. 538. & G. 117 ; "Wilton v. Dunn, Q. B. {1} Trevillian v. Pyne, 11 Mod. (A) Pope V. Biggs, 9 B. & C. 112 ; Anon. Goodb. 109, i Vin. 421 ; Evans v. Elliot, 9 Ad. & Ab. BaUiff (D), pi. 7 ; White- E. 342. head v. Taylor, 10 Ad. & El. (i) Begbie v. Hayne, 2 Bing. 212. N.S. 124 ; Child v. Chamberlain, (m) Whitehead v. Taylor, 10 6Car. &P. 213. Ad. & E. 212. Digitized by Microsoft® CONTINUATION OF TENANCY. [pAET II. 190 "- more, authorise a distress for rent in arrear (n). A receiver of rents appointed by the Court of Chancery- may distrain for arrears in the name of the lessor without the order of the Court (o). If, however, there is a doubt who is the lessor, he should obtain such an order for his own protection (p), as he can only distrain in the name of the person having the legal right to do so (q). Of course, if he is himself the actual lessor, he may distrain in his own name, and this although it appears on the face of the lease that he is a receiver only, and the rent is reserved to him in that capacity (r). Similarly, a guardian making leases in his own name may also distrain in his own name (s). Who ma ^^ *^^ common law, upon the death of a lessor distrain— posscsscd of a freehold estate, the remedy by distress ^m'inirtTa^"'' '"'^^ S°°^' because the land went to the heir or re- tors, mainder-man, while the rent in arrear at the time of the lessor's death went to his executor or administrator {t). Where, however, tenant for years underlet for years and died, the executor, or his representative in infinitum, so long as the term remained in them, could distrain for the arrears, for they were never separated from the reversion, and both belonged to the executor (m). The power to distrain was first extended to the {n) WardT. Shew, 9 Bing. 608, (r) Bancer r. Hastings, 4 Bing. 2 M. & So. 756. 2, S. C. 12 Moore, 34. (o) Pitt V. Snowden, 3 Atk. (s) Shopland v. Radler, Cro. 750. Jao. 55, 98 ; Bredell v. Constable, (p) Hughes V. Hughes, 3 Bro. Vaugh. 179 ; Bennett i;. Robins, C. C. 87. See Hickman v. Johns, 5 Car & P. 379. L. E. 6 Eq. 488. (i) Co. Litt. 162 a. (?) Hughes ti. Hughes, 3 Bro. (u) Wade i>. Marsh, Latch. 211 C. C. 87 ; Pitt V. Snowden, supra. 1 Rol. Abr. 672, 1. 35. Digitized by Microsoft® OH. II. J REMEDIES FOR NON-PAYMENT. 191 executors and administrators of the lessor in the case of a lease for lives of freehold lands (»), by the 32 Hen. VIIL, c. 37, s. 1 (w), which empowers them to distrain for the arrearages upon the lands charged while such lands are in the possession of the tenant, or of any one claiming by and from him by pur- chase, gift, or descent (a;), in like manner and form as the testator might have done in his lifetime (y) ; and now, by the 3 & 4 Will. IV., c. 42, s. 37, the executors or administrators of any lessor or landlord may distrain upon the lands demised for any term, or at will, for the arrearages of rent due to such lessor or landlord in his lifetime, in like manner as he himself might have done. By sect. 38, the arrearages may be distrained for after the end or determination of the term or lease at will, in the same manner as if the term or lease had not been ended or determined; but the dis- tress must be made within six calendar months after the determination of the term or lease, and during the continuance of the possession of the tenant from whom the arrears became due, and all the powers and provisions in the several statutes relating to distresses for rent will be applicable to distresses so made. An administrator cannot distrain before adminis- tration, nor justify the detention of goods distrained by the intestate for rent, and remaining under dis- tress at his death ; an executor, however, may dis- train before probate (^). If an administrator makes (j)) Appletou V. Doily, Yelv. 332 ; Lord Fairfax «. Lord Derby, 135. 2 Vern. 612; Anon. 1 Leon. 302, (w) Co. Litt. 162 b. Prescottw. pi. 418. Boucher, 2 B. & Ad. 859 ; Hool {y) Co. Litt. 162, b ; Ognel's V. Bell, Lord Raym. 572, S. G. ; case, 4 Eep. 50 b. Howell V. Bell, 3 Salk. 136. (z) Dejoucourt v. Rogers, 8 Ir. (x) Ognel's case, 5 Rep. 50 L. Eep. 450. See Whitehead v. b; Eldridge's case, 5 Rep. 118; Taylor, 10 A. & E. 210. Lambert v. Austin, Cro. Eliz. Digitized by Microsoft® 192 CONTINUATION OF TENANCY. [PAET II. an under-lease of a term of years of the deceased, re- serving rent to himself, his executors, &c., it has been held that his executors, and not the administrator de bonis non, shall have the rent; but it would seem that, at common law, they cannot distrain for it (a), be- cause the reversion belongs to the administrator de bonis non, and a reversion is necessary to found the remedy by distress {b) ; there seems, however, no sufficient reason why the executors may not distrain under the 3 & 4 Will. IV., c. 42. Sequestrators. By the 12 & 13 Vict., c. 67, a sequestrator is em- powered to levy a distress in his own name for the recovery of tithes, rents-charge, or rents, &c., payable to the incumbent of the sequestrated estate. What things may be de- ■ strained — General rule. (b.) What may be Distrained. The general rule is that all personal chattels found on the premises demised may be distrained for rent, whether they be the chattels of the tenant or of a third person (c). But to this general rule there are (a) Drue v. Baylie, 1 Freem. 402, 2 Leo. 100. (J) Brawley v. Wade, 1 M'Clel. 664 ; Preece v. Corrie, 2 Bing. 24 ; Pluck V. Digges, 2 Dow. k C. 180 ; Burue v. Eichardson, 4 Taunt. 720. (c) Gilb. Distr. 33 ; 3 BI. Com. 7. Cattle of a stranger upon the land are immediately liable to be dis- trained. Read v. Burley, Cro. Eliz. 549 ; Gill V. Gawin, 2 Rol. Rep. 124, except when they are turned in for the night, with the privity of the lessor or lessee, on their way to marliet. Tate v. Gleed, 2 Wms. Saund, 290 (n) 7. If a stranger's cattle, by default of their owner, or by breaking the fences, escape, they are distrain able without being levant and couchant. Har- greaves, Co. Litt. 47 b, note 301 ; Poole V. Longueville, 2 Saunde. 290, note 7 ; Kemp v. Cruwes, 2 Lutw. 1580; Reynolds v. Oaktey, 1 Brownl. 170. But if they escape through default of the tenant, they cannot be distrained by the land- lord for rent-service until they have been levarvt and couchant; nor even afterwards for rent re- served, unless the owner of the cattle, after notice, fail to re- move them. Gill v. Gawin, supra. Digitized by Microsoft® CH. 11.] REMEDIES FOR NON-PAYMENT. 193 several exceptions ; for (1.) some things which are not personal chattels have been rendered distrainahle by different statutes ; and (2.) certain personal chattels are protected from distress either absolutely or con- ditionally. By the common law, things fixed to the freehold, as doors, windows, furnaces, and the like, not being personal chattels, cannot be distrained (^ ; nor will a mere temporary disunion render them distrainahle, though it will be otherwise if the separation is entire and permanent (e). By the 11 Geo. II., c. 19, s. 8, an exception to this what things rule is created in the case of growing crops, the words ^^ined— ' being, " All sorts of corn and grass, hops, roots, fruits. Growing pulse, or other product whatsoever which shall be "["^w kl.' growing, &c., and the same to' cut, gather, make, cure, carry, and lay up when ripe," &c. (_/). The landlord, however, is not bound to resort to growing crops to satisfy the distress before taking things con- ditionally privileged, such as beasts of the plough, &c. {g). The 2 "Will. & Mary, sess. 1, c. 5, s. 3, gives power to any person having rent in arrear, and due upon any demise, lease, or contract whatsoever (see sect. 2), to seize any sheaves or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack, or rick, or other- {d) Co. Litt. 47 b ; Niblet v. of a nurseryman are not within Smith, 4 T. R. 504 ; Winn v. the words " other product," for Ingleby, 5 B. & Aid. 625 ; Duck theyarenot subject to the prooesa V. Braddyl, 13 Price, 459, S. C. of becoming ripe, &c. Clark v. M'Clel. 217. Gaskarth, 8 Taunt. 431. (e) Year Book, 14 Hen. VIII. {g) Piggott v. Birtles, 1 M. & 25 b. W. 441. (/) Trees growing in the grounds N Digitized by Microsoft® 194 CONTINUATION OF TENANCY. [PAET IP. wise upon any part of the land, &c., for or in the nature of a distress. Under this Act and the 4 Geo. II., c. 28, s. 5, the grantee of a rent-charge may distrain hay or straw, loose or in the stack (Ji). But under the 11 Geo. II., c. 19, the grantee of an annuity can- not distrain growing crops, even under an express power in the deed, for that Act only applies to land- lords, and not to " any person having rent in arrear " (i). If the corn be sold before it is ripe, the sale is void(ji), though not the distress. Where the de- fendant seized the plaintiff's growing wheat, and sold it while growing for its full value to a purchaser, who cut it, and the surplus of the sale, after satis- fying the rent, was paid over to the plaintiff, and he sustained no damage, it was held that the plaintiff was not entitled to recover even nominal damages (k). Growing corn sold under an execution could not formerly be distrained unless the purchaser allowed it to remain an unreasonable time on the ground after it was ripe (J). But now, by the 14 & 15 Vict., c. 25, s. 2, growing crops seized and sold by the sheriff under an execution are liable, as long as they remain on the land, to be distrained for the rent which becomes due after the seizure and sale, pro- vided there is no other sufficient distress. {h) Johnson v. Faulkner, 2 Q. {Ic) Rodgers v. Parker, 18 C. B. B. 925. 112. (i) Maier v. Green, 2 Cr. & J. (V) Peacock v. Purvis, 2 B. & B. 142, 8 Bing. 92 (in error). 362 ; Wright v. Dewes, 1 A. & E. (j) Owen V. Legh, 3 B. & A. 641 ; Hutt v. MorreU, 11 A. & E. 470. See Proudlove v. Twem. 425. lov^^, 1 Cr. & M. 326. Digitized by Microsoft® CH. II.] EEMEDIES FOR NON-PAYMENT. 195 The 66 Geo. III., c. 50, s. 1 (m), 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 threshed or unthreshed, or any straw of crops growing, or any chaff, colder, or any turnips, or any manure, compost, ashes, or seaweed, in any case whatsoever, nor any hay, grass, or grasses, whether natural or artificial, nor any tares or vetches, nor any roots or vegetables, being produce of such lands, in any case where, ac- cording to any covenant or written agreement, entered into and made for the benefit of the owner or landlord of any farm, such hay, grass, or grasses, tares and vetches, roots or vegetables, ought not to be taken off or withholden from such lands, or which, by the tenor or effect of such covenants or agreements, ought to be used or expended thereon, and of which covenants or agreements such sheriff or other officer shall have received a written notice before he shall have pro- ceeded to sale. By sect. 3 it is provided, that the sheriff may dis- pose of produce, subject to an agreement to expend it on the land {n). By sect. 6, in all cases where any purchaser or purchasers of any crops or produce hereinbefore men- tioned shall have entered into any agreement with such sheriff or other officer, touching the use and ex- penditure thereof on lands let to farm, it shall not be lawful for the owner or landlord of such lands to dis- train for any rent on any corn, hay, straw, or other (m) See post, Part 2, t. 3, Re- ttiseeotion is more than directory, pairs and Cultivation. See Wriglit v. Dewea, 1 Ad. & E. (») It has been doubted whether 644. Digitized by Microsoft® 196 CONTINUATION OF TENANCY. [PART II. produce thereof, which, at the time of such sale and the execution of such agreement entered into under the provisions of this Act, shall have been severed from the soil, and sold, subject to such 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 waggons, carts, or other implements of husbandry, which any person or persons shall employ, keep, or use on such lands, for the purpose of threshing out, carrying, or consuming any such corn, hay, straw, turnips, or other produce, under the provisions of the Act, and the agreement or agreements directed to be entered into between the sheriff or other officer and the purchaser or purchasers of such crops and pro- duce as hereinbefore mentioned. When hay or straw are seized under a distress, and the tenant is under covenant to expend them upon the premises, the landlord cannot sell them at a less price, subjecting them to a condition that the purchaser shall expend them according to the cove- nant (o). (c.) What may not be Distrained. Things abao- 1. Things annexed to the freehold. 2. Things of lutely privi- third persons on the tenant's premises in the wav of leged at com- . ■*■ , . . *^ moD law. his trade. 3. Thmgs which cannot be restored in the same plight, as sheaves of corn, &c. 4. Things in actual use. (o) Ridgway v. Lord Stafford, 8 M. & W. 419, which was an 6 Exch. 404; Frusher v. Lee, 10 earlier case, the contrary was de- M. & W. 709. In Abbey v. Patch, cided. Digitized by Microsoft® CH. II. J EEMEDIES FOE NON-PAYMENT. 197 1. Whatever is part of tlie freehold is exempted from distress ; thus kilns, furnaces, cauldrons, win- dows, doors, and the like, affixed to the freehold, cannot be distrained (jo). There appear to be three reasons for this rule : first, that fixtures are not per- sonal chattels, but form part of the thing demised ; secondly, that they cannot be taken away without damage to the freehold {q) ; and thirdly, that they would be injured by severance and removal, and could not be restored in the same condition as they were in when taken (r) ; and this is a rule still in force, subject to some statutory exceptions as to growing crops and matters of this nature (s). This privilege extends also to such things as would be removable as between landlord and tenant {t). Thus, kitchen-ranges, stoves, coppers, and grates are not distrainable, although they may be removed by the tenant during the term (m) ; and a mere temporary removal of fixtures for the purpose of repairing, &c., will not destroy the privi- lege (»). A question has often arisen as to the degree of annexation required to bring the particular thing with- in the rule which excepts fixtures from distress. In Wiltsheer v. Cottrell {w) it was held that a granary, (p) Go. Litt. 47 b ; Simpson v. execution ; for under the latter, Hartopp, Willes, 515, 1 Smith's fixtures which wouldberemovable L. C, notes, p. 373; Niblett v. by the tenant as between him Smith, 4 T. R. 504 ; Darby v. and his landlord, may be seized. Harris, 1 G. & D. 234 ; Dalton v. Poole's case, 1 Salk. 368. Whittem, 3 G. & D. 260 ; Gorton (n) Darby v. Harris, 1 Q. B. V. Falkner, 4 T. R. 567. 895 ; Pitt v. Shew, 4 B. & A. 208 ; (). 2. The instruments of a man's trade or profession {q). 3. Beasts which improve the land, as sheep (r). (d.) Where the Distress may be Made. The distress can only be made on some part of the AVl^ere the demised premises out of which the rent issues {s), b^made™*^ except in the case of the Crown, and except in the case of fraudulent removals to prevent a distress, as to which see infra; so that if the landlord go to distrain cattle, and they escape out of the lands {n) Robinson v. Walter, 3 Bulst. 269. But see Francis v. Wyatt, 3 Burr. 1499 ; Adams v. Grane, 1 C. & M. 381, Bayley, J. ; Brown v. ShevU, 4 N. & M. 283, Paterson, J. ; Crozier v. Tomlinson, Barnes, 472, cited in 3 Burr. 1500; Mus- pratt V. Gregory, 3 M. & W. 681, Lord Denman, C.J. (o) Co. Litt. 47 a; Fenton v. Logan, 9 Bing. 676 ; Gorton v. Falkner, 4 T. R. 565. It should be observed that even if there is a sufficient distress without re- sorting to things privileged suh modo, yet if that distress con- sists of growing crops, which are only distrainable by statute, and are not immediately productive, the landlord may distrain the things privileged sub modo. Pig- gott V. Birtles, 1 M. & W. 441. (p) Colts, steers, and heifers, do not fall within this class, as they do not gain the land. Keen V. Priest, 4 H. & N. 236. (?) Nargett v. Nias, 1 E. & E. 439 ; Gorton v. Falkner, su]i>ra ; Fenton v. Logan, supra. (r) Keen v. Priest, supra. (s) IRoLAbr. 671,1.37; Co.Litt. 161 a ; Gilb. Distress, 40 ; Capel V. Buszard, 6 Bing. 150 ; Com. Dig. Distress (A) 3, (B) 1 ; Rogers v. Birkmire, 2 Strange, 1040. The statute of Marlebridge (62 Hen. III. c. 15) confirmed the com- mon law in this respect. See 2 Inst. 131, and Gilb. Dist. 40. It seems sufficient if the distress be made not absolutely on the pre- mises, although practically so. Gillingham v. Gwyes, 16 L. T. N.S. 640, Lush., J. ; Hodges v. Lawrence, 18 Just. Peace, 347 Ex. Digitized by Microsoft® 202 CONTINUATION OF TENANCY. [PART II. demised, or into any highway within his view, he cannot pursue them (t), neither can he if they be driven oif the lands in his sight for any lawful pur- pose (m) ; but where they are driven off in the view of the landlord, for the express purpose of avoiding the distress, the landlord may make fresh pursuit, and seize them in the highway, or in any other place off the lands demised (»). But at common law, if before the landlord had view of the cattle, they were driven off the lands, even for the express purpose of avoiding a distress, the landlord could not pursue or follow them(OT). By the 11 Geo. II., c. 19, s. 1, however, if the tenant fraudulently or clandestinely (x) remove his goods from the demised premises, in order to pre- vent a distress, the landlord is within thirty days allowed to follow and distrain them, wherever they may be found, provided they have not been previously sold for valuable consideration to a hon&fide purchaser. To entitle the landlord to pursue the goods of the tenant under this statute, it was held by Eyre, C.J., that the removal must have taken place after the rent actually became due, and was in arrear (y). And although in a subsequent case, where the goods had been removed from the premises the night before the rent became due. Lord Ellenborough, C.J., de- clared (;2r) that upon this point he entertained some considerable doubts, and, but that the case before him turned upon another point, would have reserved it for the opinion of the Court ; yet the law, as laid down by Chief- Justice Eyre, has since been recognised («) Co. Litt.161 a; 2 Inst. 131. 33. The landlord must show \u) Ibid. 1 Rol. Abr. 671 1 that the goods were removed to 45. elude the distress. Parry u. (v) Ibid. Duncan, 7 Bing. 243. (w) Co. Litt. 161 a. (y) Watson v. Main, 3 Esp. 15. («) Watson II. Main, 3 Esp. 15; («) Furneaux v. Fotherby, 4 Opperman v. Smith, 4 D. & R. Camp. 136. Digitized by Microsoft® CH. II.] REMEDIES FOR NON-PAYMENT. 203 and confirmed on argument by the Court of Common Pleas (a). The statute applies to the goods of the tenant only (5). By sect. 4, an additional (c) remedy is given to the landlord by complaint to two justices, where the goods do not exceed the value of £50. By sect. 7 of the 11 Geo. II., 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-officer (and in the case of a dwelling-house, after oath being made before a magistrate of a reasonable ground to suspect that the goods are in it), break open the house, &c., in the day-time, and distrain the goods as if they had been in any open place. By the 8th sect, of the same statute, 11 Geo. II., c. 19, the landlord may distrain cattle (of the tenants) depasturing upon any common or way appertaining to the premises demised, a privilege too reasonable to require comment. The language of this section is, that the landlords or their agents may " take and seize, as a distress for arrears of rent, any cattle or stock of their respective tenant or tenants, feeding or depastur- ing upon any common appendant or appurtenant, or any way belonging, to all or any part of the premises demised or holden." (a) Rand v. Vaughan, 1 Bing. & M. 175. On the construction N. C. 767. of this section, see Stanley v. (i) Thornton II. Adams, 5M.& Wharton, 9 Price, 301, 10 Id. S. 38 ; Portman v. Harrel], 6 C. 138 ; Coster v. Wilson, 3 M. & W. & P. 225. 411. (c) Bromley «J. Holden, 1 Moo. Digitized by Microsoft® 204 CONTINUATION OF TENANCY. [PART II. (e.) When the Disteess may be Made. When the dis- ^g j,gjj^ jg ^^^^ jjj arrear till the last minute of the tress may be . . made. day on which it hecomes payable has elapsed, the landlord cannot distrain until the day after it becomes due {d), except by express agreement (e). Nor can he distrain in the night-time, i.e., from sunset to sun- rise (/). At common law a landlord could not have distrained for rent after the determination of the tenancy (^). But by 8 Anne, c. 14, ss. 6, 7, " 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, may 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 ; provided 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 landlord's title or interest (k), and during the possession of the tenant (z) from whom such arrears became due (j ). (d) Duppa v. Mayo, 1 Saund. 287. (e) Buckley v. Taylor, 2 T. R. 600 ; Giles v. Spencer, 3 C, B N.S. 244, 26 L. J. C. V. 237. (/) Co. Litt. 142 a ; Alden. burgh 1}. Peaple, 6 C. & P. 212 Tutton V. Darke, 5 H. & N. 647 Nixon V. Freeman, 5 H. & N, 647 ; Keen v. Priest, 4 H. & N, 240, per Watson, B. (g) Pennant's case, 3 Co. Rep 64 ; Wiffiams v. Stiven, 9 Q. B, 14. (A) Burne v. Richardson, 4 Taunt. 720. (i) Taylorson v. Peters, 7 A. & E. HO ; Doe d. David v. Williams, 7 C. & P. 322 ; Nuttall v. Staun- ton, 4 B. & C. 51 ; Braithwaite v. Cooksey, 1 H. Bl. 465 ; Turner V. Barnes, 2 B. & S. 435, 31 L. J. Q. B. 170. But as to possession continued beyond the expiration of the term under a custom of the country, see Beavan v. Delahay, 1 H. Bl. 5 ; Griffiths •). By the 17th Car. II., c. 7, s. 4, it is provided, that "in all cases (aforesaid) where the value of the cattle distrained as aforesaid shall not be found to be to the value of the arrears distrained for, the party to whom such arrears were due, his executors and administrators, may from time to time distrain again for the residue of the said arrears." Although there can in general be no second distress, yet where there has been no abandonment, there may be a recontinuance of a distress, and then even an outer-door may be broken open {q). It is a question for the jury whether there has been an abandonment or not (r). Cash,15M. &W. 617; Owen uDe Nash v. Lucas, L. R. 2 Q. B. Beauvoir, 16 M. & W. 5i1, S. C. 590. 5Exch. 166. And see the notes to (o) Hutching v. Chambers, 1 Nepean v. Doe, 2 Smith's L. C. Burr. 579, 1 Wms. Saund. 201, 577, 5th edit. ; and see 3 Chit. n (1). St. tit. Limitation of Actions, pp. {p) Lee v. Cooke, 2 H. & N. 584, 25- 62. 3 H. & N. 203 ; Woolaston, applt., (n) Com. Dig. Distress (A) 1 ; v. Stafford, respondt., 15 C. B. 278. Bagge, f. applt.jMawby, respondt., (j) Bannister ?;. Hyde, 2 E. & 8 Ex. 641 ; GambuU v. Earl of E. 627, 29 L. J. Q. B. 141 ; Eld- Ealmouth, 4 A. & E. 73 ; Lear v. ridge v. Stacey, 15 C. B. N.S. 458. Caldecott, 4 Q. B. 123 ; Owens v. (r) Eldridge i). Stacey, supra. Wynne, 4 E. & B. 579 ; Smith v. See also Russell v. Rider, 6 C. & Goodwin, 4 B. & Ad. 413; P. 416; Kerby ?;. Harding,6Exch. Dawson v. Cropp, 1 C. B. 961; 234. Digitized by Microsoft® CH. II.] REMEDIES FOB NON-PAYMENT. 207 (f.) How A DiSTEESS SHOULD BE MaDE. A distress for rent is made by tlie landlord or his How a distress agent entering upon some part of the demised pre- ^°^g_ mises (s) and seizing some portions of the goods there in the name of the whole, or of so much as may be necessary to satisfy the rent (t) ; but a very slight act amounts, in contemplation of law, to such a seizure, if the intention of the party distraining is manifest. 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, or merely saying " These things shall not be removed until the rent is paid," has been held to amount to a distress, although no seizure was made (u). The breaking open of an outer-door, window, gate, inclosure, or the unfastening of a hasp, will rendei: the distress illegal and void ab initio (v). So, in order to make an entry for distress, the land- lord or his agent may not put his hand through a hole in a door or through a broken pane of glass and remove a bar, window, latch, or other fastening where such a mode of entering is not the usual mode (w). But if the outer-door be open, an inner-door or lock may be forced open in order to find distrainable (s) As to fraudulent removals, B. 254, 9 Vin. Abr. 128, Distress see supra, p. 202. (B) 2, pi. 6, Co. Litt. 161 a ; («) Dodd V. Morgan, 6 Mod. Attack v. BramweD- 3. B. & S. 215 ; Draper v. Thompson, 4 C. 520, 32 L. J. Q. B. 146; Hancock & P. 84, BuUen, 131. v. Austin, 14 C. B. N.S. 634, 32 (m) Wood V. Nunn, 5 Bing. 10 ; L. J. C. P. 252; Nash v. Lucas, L. Swan V. Earl of Falmouth, SB. R. 2 Q. B. 690, 8 B. & S. 581. & C. 456 ; Hutchins v. Scott, 2 M. (w) Fitz. Abr. tit. Distress, pi. & W. 809 ; Cramer v. Mott, L. R. 21 ; Hancock v. Austin, 14 C. B. 5 Q. B. 357, 39 L. J. Q. B. 172. N.S. 634, 32 L. J. C. P. 252. See (d) Lemayne's case, 5 Co. R. ; Ryan r. Shiloock, 7 Exch. 72, 21 Duke of Brunswick v. Slowman, 8 L. J. Ex. 55. C. B. 317 ; Brown v. Glenn, 16 Q. Digitized by Microsoft® 208 CONTINUATION OF TENANCY. [PART IT. goods (x). So the party distraining may climb over a fence to gain access to the house by an open door(y), and may open an outer-door which is fastened to keep the door shut, and not to keep people out, if he use the ordinary means, as lifting the latch, withdrawing a bolt, or turning a key ; or he may enter through an open window (z). Where a room occupied by the landlord was over a mill demised to the tenant, and there being no ceiling the landlord entered through the floor by raising the boards, it was held a lawful entry (a). Where a distress has been lawfully begun, but there is an interruption not amounting to an abandonment, an outer-door may be broken open in order to con- tinue the distress (5). So also in order to get out and remove the distress (c). Where it is necessary, a police officer may be called in {d). Tn order that the tenant may know what goods the landlord intends to distrain, the party distraining must make an inventory of as many goods as are sufficient to cover the rent distrained for, and the expenses of the distress and the inventory should not be vague and uncertain (e). Notice of the distress having been made, and of the time when the goods will be appraised and sold {x) Browning v. Dann, Bull. N. (J) See Bannister v. Hyde, P. 81, Co. Litt. 161 a,. supra, p. 206. (y) Eldridge v. Staoey, 15 C. B. (c) Pugh v. Griffiths, 7 A. & E. N.S. 458. 827. (z) Eyau v. Shllcock, 7 Exch. {d) Skidmore v. Booth, 6 C. & 72, 21 L. J. Ex. 55 ; Nixon v. P. 777. Freeman, 5 H. & N. 647, 653. (e) See Wakeman v. Lindsay, (o) Gould V. Bradstock, 4 14 Q. B. 625. Taunt. 562 Digitized by Microsoft® CH. II.] EEMEDIES FOR NON-PAYMENT. 209 unless replevied or the rent or charges satisfied, should be given ; and it is convenient to write such notice at the bottom of the inventory (/), The notice should state the amount of rent due (^). It must be served with a true copy of the inventory on the tenant, or left at the house or other most notorious place charged with the rent (h). The place to which the goods are removed must be mentioned in the notice [i). The notice, unless personal, must be in writing {j). It must not be vague and uncertain as to the goods distrained (k). A defect or want of notice does not render the dis- tress illegal, but makes it irregular to proceed to sell {I). The notice need not state when the rent became due, nor the amount {m). Any defect in the notice is generally immaterial, for a man may distrain for one cause and avow or justify for another {n). It frequently happens that when a distress is com- menced, the tenant makes a tender of the rent in arrear. The common-law rule upon this subject is thus laid down by Lord Coke, in the Six Carpenters' (/) Lyon V. Tomkies, 1 M. & W. Wilson v. Nightingale, supra ; 606, 2 W. & M. sess. 1, c. 5, s. 2. Robinson v. Waddington, 13 Q. \g) Taylor v. Henniker, 12 A. B. 763. & E. 488. (m) Moss v. Qallimore, 1 Doug. (A) 2 W. & M. 0. 5, s. 2. 279, 1 Smith's L. C. 5th edit. (j) 11 Geo. II. c. 19, s. 9. 542; Tancredi). Leyland, 16 Q. B. 0') Wilson V. Nightingale, 8 Q. 669. B. 1034; Walter v. Eumball, 1 (») Crowther v. Bamsbottom, Lord Raymond, 53. 7 T. R. 654 ; Etherton v. Popple- {Ic) Kerby v. Harding, 6 Exch. well, 1 East. 139 ; Wootley a. 234, 20 L. J. Ex. 163 ; Wakemau Gregory, 2 J. & J. 536 ; Trent v. ■V. Lindsey, 14 Q. B. 625. Hunt, 9 Exeh. 14, 22 Exch. 318 ; {I) Trent v. Hunt, 9 Exoh. 14 ; Phillips 'v. Whitsed. 2 E. & E. Lucas V. Tarleton, 3 H. & N. 116 ; 804, 29 L. J. Q. B. 164. Digitized by Microsoft® 210 CONTINUATION OF TENANCY. [PART II. case (o) : — " 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 impound- ing makes neither 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." If, however, the tender is made within the five days allowed by the statute (p) for the tenant to replevy, a special action on the case may be maintained against the landlord, if he proceed to sell the distress, al- though the goods were impounded before tender (q). A tender of the rent without expenses after a warrant of distress has been delivered to the broker, is a good tender (r). Whether the distress be " impounded" before the tender or not, is a question depending on the circumstances of the case(s). A tender may be made to the landlord himself, even where he has placed the matter in his broker's hands {t). So it may be made to any agent of the landlord having authority to receive the rent (m). But a tender to a man who is merely in possession is bad (»). The tenant must tender the full amount of the rent due, except actual or constructive payments on account of rent (w). He must also tender a sufficient sum for (o) 8 Rep. 146. corn v. Hofifman, 9 M. & W. (p) 2 W. & M. sess. 1, u. 5, s. 2. 618. (2) Johnson v. Upham, 2 E. & (t) Smith v. Goodwin, 4 B. & E. 250, 28 L. J. Q. B. 252, over- Ad. 413. ruling BUia v. Taylor, 8 M. & W. (u) Bennett v. Bayes, 5 H. & 415. N. 391, 29 L. J. Ex. 224 ; Hatch (r) Bennett I!. Bayes, 5 H. & N. v. Hale, 15 Q. B. 10; Brown v. 391. Powell, 4 Bing. 230. (s) Thomas v. Harries, 1 M. & (v) Boulton v. Reynolds, 2 E. G. 695; Swan v. Earl of Fal- & E. 369, 29 L. J. Q. B. 11 ; mouth, 8 B. & C. 456 ; Tennant Pilkington v. Hootings, Cro. Eliz. V. Field, 8 E. & Bl. 336 ; Brown 813. K.Powell. 4 Bing. 230; Pepper- (w) See a»«e, Deductions, p. 163. Digitized by Microsoft® CH. n.] REMEDIES FOR NON-PAYMENT. 211 the lawful expenses of the distress {x). The tender must be made unconditionally (y). (g.) What to be done with it. As soon as the distress {z) is made, the landlord or What to be his agent must impound the goods in a pound {a) suit- able to the nature of the distress. Thus, if the articles distrained are of a perishable nature, the landlord should secure them in a pound covert or weather-proof; if they are cattle, in an open pound (])). At common law, if the distrainer put the cattle distrained into a public pound, they lay there at the tenant's risk, and if they starved, the distrainer was not answerable (e). By 12 & 13 Vict., c. 92, s. 5, " Every person who shall impound or confine, or cause to be impounded or confined, in any pound or receptacle of the like nature any animal, shall provide and supply, during such confinement, a sufficient quantity of fit and wholesome food and water to such animal ; and every such person who shall refuse or neglect to provide and supply such animal with such food and water as afore- said, shall, for every such offence, forfeit and pay a penalty of twenty shillings." {x) See infra, pp. 217, 219. curity until his rent was satisfied. (y) Finch f. Miller, 5 C. B. If he sold it, he became a tres- 428 ; Bowen v. Owen, 11 Q. B. passer ah initio, and the proceed- 130 ; Bull V. Parker, 2 Dow. ings were void. See Six Carpeu- N.S. 345; Manning v. Lunn, 2 ters' case, 1 Smith's L. C. 132; C. & K. 13 ; Jennings v. Major, 8 Gilbert on Distress, 67. C. & P. 61 ; Foord v. Noll, 2 Dow. (a) Co. Litt. 47 b. N.S. 617 ; Laing v. Meandor, 1 C. (h) See Wilder v. Speer, 8 A. & P. 257. & E. 547 ; Gilbert on Dist. 62, 2 {z) At common law the dis- Inst. 106, Co. Litt. 37 b, Bac. tress was only a pledge for the Abr. Distress (D) ; Bignell v. rent in arrear, and the landlord Clark, 5 H. & N. 485. was entitled to keep it as a se- (c) Bac. Abr. Distress (D). Digitized by Microsoft® 212 CONTINUATION OF TENANCY. [PART II. By sect. 6, " In case any animal shall at any time be impounded or confined as aforesaid, and shall con- tinue confined without fit and sufficient food and water for more than twelve successive hours, it shall and may be lawful to and for any person whomsoever, from time to time, and as often as shall be necessary, to enter into and upon any pound or other receptacle of the like nature, in which any such animal shall be so confined, and to supply such animal with fit and sufficient food and water during so long a time as such animal shall remain and continue confined as aforesaid, without being liable to any action of tres- pass, or any other proceeding by any person whomso- ever, for or by reason of such entry for the purposes aforesaid ; and the reasonable cost of such food and water shall be paid by the owner of such animal, before such animal is removed, to the person who shall sup- ply the same, and the said cost may be recovered in like manner as herein provided for the recovery of penalties under this Act," i.e., by summary proceed- ings before a justice. By 17 & 18 Vict, c. 60, s. 1," Every person who, since the passing of the said Act of the 12th and 13th years of Her Majesty, has impounded or confined, or hereafter shall impound or confine, as in the said Act mentioned, any animal, and has provided and supplied, or shall hereafter provide and supply, such animal with food and water as therein mentioned, shall and may, and he is hereby authorised, to recover of and from the owner or owners of such animal, not exceed- ing double the value of the food and water so already or hereafter to be supplied to such animal, in like manner as is by the said last-mentioned Act provided for the recovery of penalties under the same Act ; and every person who has supplied or shall hereafter sup- Digitized by Microsoft® CH. XI.] REMEDIES FOE NON-PAYMENT. 213 ply such food and water, shall be at liberty, if he shall so think fit, instead of proceeding for the recovery of the value thereof as last aforesaid, after the expiration of seven clear days from the time of impounding the same, to sell any such animal openly at any public market (after having given three days' public printed notice thereof), for the most money that can be got for the same, and to apply the produce in discharge of the value of such food and water so supplied as afore- said, and the expense of and attending such sale, rendering the overplus (if any) to the owner of such animal " (d). When the distress is taken, the distrainer cannot use or work it, except it seems where the user is necessary for its preservation ; and if any injury happens to the distress from any act of the distrainer, who is respon- sible for the state of the pound, he must answer for it to the tenant (e). At common law a distress could be impounded by removing it from the place at which it was taken and placing it in a common pound anywhere under the custody of the pound-keeper (_/). But the 52 Hen. III. (statute of Marlebridge), c. 4, prohibited the person distraining from driving the distress out of the county. The 1 & 2 Philip & Mary, c. 12, directed that no distress of cattle should be driven out of the hundred, rape, wapentake, or lathe where it was taken, except to an open pound in the same shire not above three miles from the place of taking it. By the 11 Geo. II., c. 19, s. 10, (d) See Mason v. Newland, 7 C. Eliz. 783 ; Chamberlayn's case, 1 & P. 675 ; Layton v. Hurry, 8 Leon. 220 ; Bagshawe v. Gilliard, Q. B. 811. 1 Roll. Abr. 673, 1. 26, 32 ; Smith (e) Wilder v. Speer, 8 A. & E. ■,;. Wright, 6 H. & N. 821. 647 ; Vaspar v. Edwards, 1 Salk. (/) Thomas v. Harries, 1 M. & 248 ; Dodd v. Morgan, 6 Mod. Gr. 707, o. (a). 216 ; Duncomb v. Eeeve, Cro. Digitized by Microsoft® 214 CONTINUATION OF TENANCY. [PAET II. it was enacted, " That it shall be lawful for any person or persons lawfully taking any distress for any kind of rent, to impound or otherwise secure the distress so made, of what nature or kind soever it may be, in such place, or on such part of the premises chargeable with the rent, as shall be most fit and convenient for the impounding and securing such distress." The goods seized should, if convenient, be put into one room, unless the consent of the owner is given to the contrary, and very slight evidence is necessary to prove such consent {g). But by 2 Will. & Mary, sess. 1, c. 6, s. 2, " Where any goods or chattels shall be distrained for any rent reserved and due upon any demise, lease, or con- tract 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 accord- ing to law, then in such case, after such distress and notice as aforesaid, and expiration of the said five days, the person distraining shall and may, with the sheriff or under-sheriff of the county, or with the constable of the hundred, parish, or place where such distress shall be taken (who are hereby required in aiding and assist- ing therein), cause the goods and chattels so distrained to be appraised by two sworn appraisers (whom such sheriff, under-sheriff, or constable are hereby em- powered to swear) to appraise the same truly accord- ing to the best of their understandings ; and after such (3) Washbourn«!.BIack,llEast. 767; Woods i". Durant, 16 M. & 405 n ; Cox v. Painter, 7 C. & P. W. 149. Digitized by Microsoft® CH, II. j EEMEDIES FOE NON-PAYMENT. 215 appraisement, shall and may lawfully sell the goods and chattels so distrained for the best price that can be gotten for the same, towards satisfaction of the rent for which the said goods and chattels shall be dis- trained, and of the charges of such distress, appraise- ment, and sale, leaving the overplus (if any) in the hands of the said sheriff, under-sheriff, or constable, for the owner's use." Although it is in most cases optional with the party distraining to impound the distress either on or off the premises, yet where sheaves or cocks of corn, or corn loose or in the straw, or hay lying in a barn or granary, or on a hovel, stack, or rick, or otherwise, are distrained under the statute 2 Will. &Mary, sess. l,c. 5, a removal from the premises where seized is prohibited. Growing crops seized under 11 G-eo. II.,c.l9,ss. 8and9, can only be removed when they have become ripe and are cut, and there is no barn or proper place on the premises wherein they may be placed (Ji). The distress being considered merely as a pledge, could not at common law have been sold. The notice having been given, and the five days having expired, the landlord may proceed with the appraisement and sale, except in the case of growing crops, which are not appraiseable until after they are ripe and severed (i). The five days mentioned in the statute are exclusive of the day of taking and notice, and also of the day of sale {j). But the landlord has a reasonable time after the expiration of the five days (A) Piggott V. Birtles, 1 M. & (j) Robinson v. Waddington, 13 W. 448. Q. B. 753 ; Harper v. Taswell, 6 (j) 11 Geo. II. c. 19, B. 8 ; Owen C. & P. 166. In Lucas v. Tarleton, V. Legh, 3 B. & A. 470. See 3 H. & N. 116, it was held, in supra, ' action for selling the goods within Digitized by Microsoft® 216 CONTINUATION OF TENANCY. [PART II for the purpose of appraising and selling (k). During such reasonable time the goods distrained are in cus- todid legis, and are protected from seizure under an execution (J). It is usual, however, for the tenant to consent that the landlord should remain beyond the five days. If such consent is given, it is prudent to have it in writing. The two appraisers (m), who must be persons having no interest, and should not be the broker or party dis- training (n), should then be sworn by the sheriff or under-sheriff of the county, or constable of the parish where it is taken (. Mizem, 2 Moo. & R. 56. Digitized by Microsoft® 272 DETEBMINATION OF TENANCY. [PART III. 4. How Seeved. How served. The notice must be served at the dwelling-house on the party himself, or to his wife or servant (z). But a notice left at the tenant's house merely, there being no evidence of its having come to the hand of the tenant, his wife, ov servant, is not sufficient (J). It seems to have been doubted in one case whether service on the wife of the tenant, but not on the premises, was sufficient (k). "Where a notice to quit was placed under the door of the tenant's house, and his wife proved that the notice was received by the tenant in due time, it was held a sufficient service (i^). So a notice to quit may be sent by post ; and where a notice to quit at Michaelmas was sent through the post by the tenant on the morning of the 25th of March, to the place of business of the landlord's agent, and the jury found that the letter was de- livered that evening during the hours of business (?w) , although the agent did not find it till the following morning, it was held sufficient (n). Waiver of notice. 5. Waivee of Notice. By a notice to quit the tenancy is put an end to by (i) Smith V. Clarke, 9 Dowl. 202 ; Jones d. GriflSths v. Marsh, 4 T. R. 464 ; Roe d. Blair v. Street, 2 A. & E. 329 ; Doe d. Neville v. Dunbar, M. & M. 10. {j) Doe d. Buross v. Lucas, 5 Esp. 153. (h) Roe d. Blair v. Street, 2 A. & E. 329. (I) Alford V. Vickery, Car. & M. 280. (m) Per Bramwell, B. {n) Papillon t). Brunton, 5 H. & M. 518, 29 L. J. Ex. 265. Digitized by Microsoft® CH. IV. J NOTICE TO QUIT. 273 the agreement of the parties, who can also agree to waive the notice, and so to create a new tenancy (o). Where the landlord has given notice, but the tenant holds over, the landlord cannot waive the notice, and distrain for rent subsequently accruing ; for there is no " agreed rent " to distrain for until a new tenancy arises (jo). A waiver of notice will be presumed from a receipt of rent as such, subsequently to the expiration of the notice (q) ; but a mere demand is a question of inten- tion, which must be left to the jury (r). So a second notice will operate as a waiver of the first (s), unless it be clear that it is not intended to have that effect (t). A good parol notice, however, will not be waived by a subsequent insufficient notice in writing (u). As is stated above, the parties may mutually agree to waive a notice to quit which has been given, but the tenant will not be allowed to take advantage of a mere indulgence on the part of a landlord, and treat it as a waiver (v). A disclaimer operates as a waiver of notice (m), (o) Blyth V. Dennett, 13 C. B. («) Doe d. Williams v. Humph. 180 ; Dendy v. NichoU, i C. B. reys, 2 East. 237 ; Doe d. Godsell N.S. 381 ; Tayleur v. Wildin, 37 v. Inglis, 3 Taunt. 54 ; Mes- L. J. Ex. 173. Benger v. Armstrong, 1 T. E. ( p) Jenner v. Clegg, 1 Moo. & 53. E. 213 ; Alfordu Vickery, 1 Car. {u) Doe d. Lord Macartney & M. 280. V. Crick, 5 Esp. 196. (q) Goodright d. Charter V. (v) Whiteaore d. Boult i). Cordwent, 6 T. E. 219 ; Croft v. Symonds, 10 East. 13, 17 ; Doe Lumley, 5 E. & B. 648, 6 H. L. d. Lord Macartney v. Crick, 5 Cas. 672; Blyth v. Dennett, 13 Esp. 196; Doe d. Marquis of C. B. 180. Hertford v. Hunt, 1 M. & W. (r) Blyth v. Dennett, supra. 690. (s) Doe d. Brierley v. Palmer, (w) See ante, 262. 16 East. 53. Digitized by Microsoft® CHAPTER V. HOLDING OVER. 1. Small Tenements Act ... 275 2. Desektion bt Tenant ... 281 Double Value Double Rent PAGE 284 287 Upon tlie determination of the tenancy, the landlord is entitled to receive the full and complete possession from his tenant, who must therefore deliver up to his landlord the peaceable and quiet possession of the demised premises, together with all fixtures (a), ex- cept what he is entitled to remove ; and also all grow- ing crops, unless there be an agreement or custom [b) to the contrary (c). If the tenant holds over after the expiration of the notice to quit, whereby the landlord is prevented from delivering possession to a party to whom he had agreed to let the premises, the land- lord can recover the reasonable damages and costs that he has sustained (f/). Where it is impossible for the tenant to give up possession, by reason of the ill-will or obstinacy of his under-tenant, to whom he has let the whole or part of the premises, the original tenant win still be liable (e). The landlord, however, may discharge him by accepting the under-tenant as his (a) See Fixtures, p. 298. (6) See Emblements, p. 288. (c) Hyatt V. Griffiths, 17 Q. B. 605; Newson v. Smythies, 3 H. & N. 840, 28 L. J. Ex. 97 ; Calde- cott V. Smythies, 7 C. & P. 808 ; Henderson v. Squire, L. R. 4 Q. B. 170. {d) Bramley v. Chesterton, 2 C. B. N.S. 592, 27 L. J. C. P. 23. (e) Harding v. Crethorn, 1 Esp. 67 ; Ibbs V. Richardson, 9 A. & E. 849. See also Christy r. Tancred, 7 M.&W. 127, 9 M. &W 438 ; Tancred v. Christy, 12 M. & W. 316; Draper v. Crofts, 15 M. & ^y. 166 ; Jones v. Shears, 4 A. & E. 832, 835; Gray v. Bompas, 11 C. B. N.S. 520 ; War- ing i>. King, 8 M. & W. 571. Digitized by Microsoft® CH. V.J HOLDING OVER. 275 tenant. Where the tenant holds over, the landlord may enter on the demised premises peaceably and without action, if he can succeed in doing so (/) ; but if he break in forcibly, so as to endanger a breach of the peace, he may be liable to the risk of an indict- ment (y). It is safer, therefore, to sue in trespass for the recovery of damages, or in ejectment for the re- covery of the premises. 1. Small Tenements Act. In order to save the landlords of small tenements the expense and delay of a proceeding by ejectment to recover possession, where a tenant refuses to quit on the determination of his interest in the premises, the statute 1 & 2 Vict., c. 74, s. 1, enacts, that " When and so soon as the term or interest of the tenant of any house, land, or other corporeal hereditaments held by him at will, or for any term not exceeding seven years, either without being liable to the payment of any rent, or at a rent not exceeding the rate of £20 a year, and upon which no fine shall have been reserved or made payable, shall have ended, or shall have been duly determined by a legal notice to quit or otherwise, and such tenant or (if such tenant do not actually occupy the premises, or only occupy a part thereof) any person by whom the same, or any part thereof, shall be then actually occupied, shall neglect or refuse to quit and deliver up possession of the premises, or of such part thereof respectively, it shall be lawful for the landlord of the said premises, or his agent, to cause the person so neglecting or (/) Taylor v. Cole, 1 Smith's liable to an action at the suit of L. C. 6th edit., 111. the tenant, but that point is not (g) E. V. Smyth, 1 M. & decided; Harvey ii.Brydgea, 14 M. R. 155, judgment of Lord & W. 437 ; Wright ?;. Burroughes, Tenterden. See Newton n. Har- 3 C. B. 699; Davison v. Wilson, land, 1 M. & Gr. 664, where it was 11 Q. B. 890; Davis v. Burrell, held that the landlord may be 10 C. B. 825. Digitized by Microsoft® 376 DETEEMINATION OF TENANCY. [pAET III. refusing to quit and deliver up possession to be served (in tlie manner hereinafter mentioned) with a written notice in the form set forth in the schedule in this Act, signed by the said landlord or his agent, of his intention to proceed to recover possession under the authority and according to the mode prescribed in this Act ; and if the tenant or occupier shall not thereupon appear at the time and place appointed, and show to the satisfaction of the justices hereinafter mentioned reasonable cause why possession should not be given under the provisions of this Act, and shall still neglect or refuse to deliver up possession of the premises, or of such part thereof of which he is then in possession, to the said landlord or his agent, it shall be lawful for such landlord or agent to give to such justices proof of the holding, and of the end or other determination of the tenancy, with the time and manner thereof; and where the title of the land- lord has accrued since the letting of the premises, the right by which he claims the possession ; and upon proof of service of the notice and of the neglect or refusal of the tenant or occupier, as the case may be, it shall be lawful for the justices acting for the district, division, or place within which the said premises, or any part thereof, shall be situate, in petty sessions assembled, or any two of them, to issue a warrant under their hands and seals to the constables and peace-officers of the district (/i), division, or place within which the said premises, or any part thereof, shall be situate, commanding them within a period to be therein named, not less than twenty-one nor more than thirty clear days from the date of such warrant, to enter (by force if needful) into the premises, and give possession of the same to such landlord or agent : provided always that entry upon any such warrant (li) Jones V. Chapman, U M. & W, 124. Digitized by Microsoft® CH. V.J HOLDING OVEE. 277 shall not be made on a Sunday, G-ood Friday, or Christmas Day, or at any time except between the hours of nine in the morning and fom* in the after- noon : provided also, that nothing herein contained shall be deemed to protect any person on whose ap- plication and to whom any such warrant shall be granted, from any action which may be brought against him by any such tenant or occupier, for or in respect of such entry and taking possession, where such person had not, at the time of gi'anting the same, lawful right to the possession of the same premises : provided also, that nothing herein contained shall affect any rights to which any person may be entitled as outgoing tenant by the custom of the country or otherwise." A like remedy is given to the valuer under the In- closure Acts in respect of encroachments, and recent inclosures of land subject to the provisions of those Acts (i). By " The Charitable Trusts Act, 1860 " {j), a like remedy is given to the trustees against a schoolmaster wrongfully holding over. By the 59 Geo. Ill, c. 12, ss. 24, 25, church- wardens and overseers of hereditaments belonging to the parish (^) can, in the mode therein provided, obtain a warrant from the justices for the possession of hereditaments belonging to the parish which are wrongfully held over [I), and the justices may in- quire into the matter although a claim of title arises (m). {i) 15 &. 16 Vict. 0. 79, s. 13 ; {k) See ante, Part 1, c. 1, p. 20. Chilcote V. Youlden, 29 L. J. M. {I) As to cottage aUotments, C. 197. see 2 & 3 Will. IV. o. 42, ss. 5, U) 23 & 24 Vict. e. 136, a. 13. 11. As to land vested in the Secretary (m) Ex parte Vaughan, 7 B. & of State for War, see 22 Viet. S. 902, L. R. 2 Q. B. 114, 36 L. c. 12, s. 5. J. M. C. 17. Digitized by Microsoft® 278 DETERMINATION OF TENANCY. [PAET III. By 19 & 20 Vict, c. 108, s. 50 (n), " When the term and interest of the tenant of any corporeal here- ditament, where neither the value of the premises nor (o) the rent payable in respect thereof shall have exceeded £50 by the year, and upon which no fine or premium shall have been paid, shall have expired or shall have been determined, either by the landlord or the tenant by a legal notice to quit, and such tenant, or any person holding or claiming by, through, or under him, shall neglect or refuse to deliver up pos- session accordingly, the landlord may enter a plaint, at his option, either against such tenant or against such person so neglecting or refusing, in the County Court of the district in which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person neglecting or re- fusing; and if the defendant shall not, at the time named in the summons, show good cause to the con- trary, then, on the proof of his still neglecting or refusing to deliver up the possession of the premises, and of the yearly value and rent of the premises, and of the holding, of the expiration or other determi- nation of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons on the defendant thereto, the judge may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the judge shall think fit to name ; and if such order be not obeyed, the registrar, whether such order can be proved to have been served or not, shall, at the {n) This section is an amend- Norvall, 5 D. & L. 4i5 ; Crowley ment of 9 & 10 Vict. c. 95, s. 122. v. Vitty, 7 Ex. 319. The cases on the latter section (o) The word "or" was used are In re Earl of Harrington v. in sect. 122 of 9 & 10 Vict. c. 95. Ramsay, 8 Ex. 879 ; Fearon v. See supra, note (n). Digitized by Microsoft® CH. V.J HOLDING OVER. instance of the plaintiff, issue a warrant autliorising and requiring thie high bailiff of the Court to give possession of such premises to the plaintiff." The relation of landlord and tenant must exist to enable the Court to have jurisdiction. Where plaintiff claimed as a mortgagee, and the defendant, who held under a demise from the mort- gagor subsequent to the mortgage, had never attorned to the plaintiff, it was held that the statute did not apply (jo). Where defendant was let into possession of premises under an agreement to purchase, and he agreed to pay 8s. a week rent, to be afterwards deducted from the purchase-money, and he had paid, under this agreement, sums of money which, with a set-off, equalled the amount of the purchase-money, it was held that the relation of landlord and tenant did not exist [q). If a bona fide claim of title is set up and proved to exist, the County Court judge has no jurisdiction to decide the case (r) except by the written consent of the parties or their attorneys (s). But the tenant is estopped from denying his landlord's title (t). Under sect. 51, plaintiff may add a claim for rent or mesne profits as against his tenant down to the day of leaving, so that his claim does not exceed £50 {u). By 19 & 20 Vict., c. 108, s. 52, " When the rent of (p) Jones V. Owen, 5 D. & L. 'brook, 37 L. J. Ex. 15, L. R. 3 669. Ex. 27. (q) Banks v. Rebbeok, 2 L. M. (s) 19 & 20 Vict. o. 108. s. 25. & P. 452. {t) See Leases by Estoppel, ante, (r) Lilley v. Harvey, 5 D. & L. p. 156. In re Emery v. Barnett, 648; Fearon v. Noryall, Id. 439 ; 27 L. J. C. P. 216, 4 C. B. N.S. Marwood v. "Waters, 13 C. B. 820 ; 423 ; Lloyd v. Jones 6 C. B. 81. Latham v. Spedding, 17 Q. B. (u) See Campbell v. Loader, 8 440 ; Lloyd v. Jones, 6 C. B. 81, H. & C. 520. 5 D. & L. 784 ; Pearson v. Glaze- Digitized by Microsoft® 280 DETEEMmATION OF TENAI^CT. [PART III. anj' corporeal hereditament, wliere neither the value of the premises nor the rent payable in respect thereof exceeds £50 by the year, shall for one half year be in arrear, and the landlord shall have right by law to re-enter for the non-payment thereof, he may, with- out any formal demand or re-entry, enter a plaint in the County Court of the district in which the premises lie for the recovery of the premises ; and thereupon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand or re-entry ; and if the tenant shall, five clear days before the return-day of such summons, pay into Court all the rent in arrear, and costs, the said action shall cease ; but if he shall not make such payment, and shall not at the time named in the summons show good cause why the premises should not be recovered, then, on proof of the yearly value and rent of the premises, and of the fact that one half-year's rent was in arrear before the plaint was entered, and that no suificient distress was then to be found on the premises to countervail such arrear, and of the landlord's power to re-enter, and of the rent being still in arrear, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the sum- mons, if the defendant shall not appeal thereto, the judge may order that possession of the premises men- tioned in the plaint be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the day of hearing, as the judge shall think fit to name, unless within that period all the rent in arrear and costs be paid into Court, and if such order be not obeyed, and such rent and costs be not so paid, the registrar shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorising and requiring the high bailiff of the court to give possession of such Digitized by Microsoft® CH. V.J HOLDING OVEE. 281 premises to the plaintiff, and the plaintiff shall, from the time of the execution of such warrant, hold the pre- mises discharged of the tenancy, and the defendant, and all persons claiming hy, through, or under him, shall, so long as the order of the Court remains un- reserved, be barred from all relief in equity or other- wise." 2. Desertion by Tenant. By 11 Geo. II., c. 19, s. 16, " If any tenant hold- ing any lands, tenements, or hereditaments, at a rack- rent, or where the rent reserved shall be full three fourths of the yearly value of the demised premises, who shall be in arrear for one year's rent (extended by 57 Geo. III., c. 52, to one half year's rent), shall desert the demised premises, and leave the same un- cultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent, it shall and may be lawful to and for two or more justices of the peace of the county, riding, division, or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her, or their bailiff or receiver, to go upon and view (v) the same, and to affix or cause to be affixed on the most notorious part of the premises, notice in writing, what day (at the distance of fourteen days at least) (ro) they will return to take a second view thereof, and if, upon such second view, the tenant or some person on his or her behalf shall not appear and pay the rent in arrear, or there shall not be sufficient (v) Where the premises are tenant, issue his warrant, requir- within the Metropohtan Police ing a constable to view the pre- Distriot the police magistrate miees; 3 & 4 Vict. o. 84, o. 13. need not view the premises, but (w) i.e., fourteen clear days; can, upon proof given to his satis- Creak v. the Justices of Brighton, faction of the arrear of rent and 1 F. & F. 110. desertion of the premises by the Digitized by Microsoft® 282 DETEEMINATION OF TENAlfCY. ' [PAET III. distress upon the premises, then the said justices may- put the landlord or landlords, lessor or lessors, into the possession of the said demised premises, and the lease thereof to such tenants, as to any demised there- in contained only, shall from thenceforward become void." By sect. 17, such proceedings of the justices are examinable in a summary way by the judge going the circuit in his individual capacity, and not as a justice of assize (x). He may order restitution to be made to the' tenant, together with the expenses and costs. If the judge affirms the act of the justices, he can award costs not exceeding five pounds. The 57 Geo. III., c. 52, extended the powers of the 11 Geo. II., c. 19, s. 16 (y), to the case of tenants " who shall hold such lands and tenements or here- ditaments under any demise or agTeement, either written or verbal, and although no right or power of re-entry be reserved or given to the landlord in case of non-payment of rent." The above statutes apply to all demises, whether written or oral, however long may be the term and however large may be the amount of rent reserved {z). It matters not that the lease or agreement contains no condition or proviso for re-entry for non-payment of rent (a) ; and, therefore, this mode of proceeding may sometimes be adopted where no action of ejectment could be supported, nor any remedy obtained in the County Court. But the following circumstances must (x) Reg. V. Sewell, 8 Q. B. 161. statute did not apply ; Ex parte iy) Where by the terms of the Pilton, 1 B. & A. 369 a. lease the landlord had not a right (z) Ex -parte Pilton, see supra. of re-entry, it waa held that this (a) Edward v. Hodges, 15 C. B.477. Digitized by Microsoft® CH. v.] HOLDING OVER. 283 concur, viz. : — 1. The rent reserved must be rack- rent, or full three-fourtlis of the yearly value of the demised premises. 2. One half a year's rent at the least must be in arrear. 3. The premises must have been deserted and left uncultivated or unoccupied, so as no sufficient distress may be had to countervail the arrear of rent. No information or complaint on oath need be made before the justices ; a mere request is sufficient (6). But upon an application to a metro- politan police magistrate, proof must be made to his satisfaction of the rent in arrears and desertion of the premises by the tenant (c). The justices are upon their own view to determine whether the premises are deserted or not {d). Also whether they have been left uncultivated or unoccupied, so as no sufficient distress can be had to countervail the arrears of rent; also, whether the rent reserved is a rack-rent, or full three-fourths of the yearly value of the demised pre- mises. It has been decided, where a tenant ceased to reside on the premises for several months, and left them without any furniture or sufficient other property to answer the year's rent, that the landlord might properly proceed under the statute to recover the pos- session, although he knew where the tenant then was, and although the justices found a servant of the tenant on the premises when they first went to view the same (e). On the other hand, in a case where the wife and children of the tenant remained on the premises, but there was no furniture in the house except three or four chairs, which were stated by the wife to belong to a neighbour : it was held, on appeal (reversing the decision of the justices), that the premises had not (6) Basten v. Carew, 3 B. & C. (d) Basten v. Carew, supra. 649, Re Perham, 5 H. & K. 30. (e) Bxparte Pilton, supra. See (c) Seesapra, 3&4 Vict. u. 84, Taylorson u. Peters, 7 A. & E. s. 13. 110- Digitized by Microsoft® 284 DETERMINATION OF TENANCY. [PART III. been deserted within the meaning of the Act(y). Where magistrates had given possession of a dwelling- house as deserted and unoccupied, and the judges of assize on appeal made an order for restitution with costs, and the tenant brought an action of trespass for the eviction against the magistrates, the constable, and the landlord, it was held that the record of the proceedings before the magistrate was an answer to the action on behalf of all the defendants {g). 3. Double Value. Double value. By 4 Geo. II., c. 28, s. l{h), " In case any tenant, or tenants for life, lives, or years, or other person or persons who are or shall come into possession of any lands, tenements, or hereditaments, by, from, or under, or by collusion with, such tenant or tenants, shall wilfully hold over any lands, tenements, or hereditaments after {i) the determination of such term or terms, and after demand made, and notice in writing given, for delivering the possession thereof by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, &c., shall belong, his or their agent (j), or agents thereunto lawfully authorised, then and in such case such person or persons so holding over, shall for and during the time he, she, or they, shall so hold over, or keep the person or persons entitled out of possession of the said lands, tenements, or hereditaments as aforesaid, pay to the person or per- (/) Ashcroft V. Bourne, 3 B. & (i) Page v. More, 15 Q. B. 684. Ad, 684. (_;') A receiver appointed by the (^r ) Ashcroft v. Bourne, siipra ; Court of Chancery in a suit de- Basten v. Carew, 3 B. & C. 649. pending, is a sufficient agent to (h) As to the construction of give notice ; Wilkinson v. CoUey, this statute, which is a remedial 6 Burr. 2694. See Goodtitle ex dem law, see Wilkinson v. CoUey, 5 Read v. Badtitle, 1 B. & P. 385 ; Burr. 2694. Poole v. Warren, 8 A. & E. 682. Digitized by Microsoft® CH. v.] HOLDING OVER. 285 sons so kept out of possession, their executors, admin- istrators, or assigns, at the rate of double the yearly- value of the lands, tenements, and hereditaments (k) so detained, for so long as the same are detained, to he recovered in any of His Majesty's courts of record by action of debt (Z), whereunto the defendant or de- fendants shall be obliged to give special bail (?w), against the recovering of which said penalty there shall be no relief in equity." The Act does not apply unless the holding over is wilful and contumacious. If the tenant, therefore, retains the possession under a fair claim of right, or there is a real dispute as to the landlord's title, the tenant is not liable to pay double value (n). Where there had been a treaty for a further term between the landlord and tenant, but which after- wards went off, the tenant held over during the treaty; an action having been brought for double value under the statute, it was held by Lord Mans- field that the action was not maintainable (o). The remedy under the Act, that is, an action of debt, is given only to the landlord, or person entitled to the reversion. A new lessee, therefore, whose term is to begin on the ending of the first lease, having (i) Where the owner of a action, and naay he sued for in the woollen mill and steam-engine County Court ; AVickham v. Lee, let a room with a supply of power 12 Q. B. 521, 18 L. J. Q. B. from the engine, by means of a 21. revolving shaft in the room, it (m) See Wheeler v. Copeland, 5 was held, in estimating the double T. R. 364. value of the premises, the value (n) Wright v. Smith, 5 Esp. of the power supplied could not 203 ; Swinfen v. Bacon, 6 H. & be included. Eobinson v. Lea- C. 184, 846, 30 L. J. Ex. J3. Per royd, 7 M. & W. 48. Lord EUenborough in Soulsby v. (t) But not by distress ; Tim- Neving, 9 East. 313. mins V. Rawlinson, 3 Burr. 1605. (o) Doe d. Cheney v. Batten, A demand for double value under Cowp. 243 M. S. 9 East. 315. this statute is a plea of personal Digitized by Microsoft® 286 DETERMINATION OF TENANCY. [PART III. only an interesse termini, cannot sue for double value (p). This action will lie even after recovery of the premises by ejectment, where there was no real bona fide defence to the ejectment ( q). This statute requires that there should be a " de- mand made, and notice in writing given for de- livering the possession" of the premises. A notice to quit (r), when regular, will operate also as a demand of the possession under the Act, without any more specific demand ; and notices to deliver up the possession under the statute are not construed strictly (s). But where a notice required the tenant to give up the possession at twelve at noon on the day on which the tenancy was determinable, at which time the landlord would attend to receive the keys and the rent, and the notice stated that in the event of his not so surrendering, the landlord would demand a certain daily rent mentioned in the notice, which ex- ceeded, in fact, double the amount of the original rent, it was held that this notice was insufficient, the tenant being required to give up the possession before the expiration of the tenancy (t). A weekly tenant is not within the Act (u), neither is a tenant from quarter to quarter (v). (p) Blatcliford v. Cole, 5 C. P. sufficient notice is given to a N.S. 514, 28 L. J. C. P. 140. female tenant, who afterwards ( q) Soulaby v. Neving, 9 East. marries, the action for not de- 310 ; Wright v. Smith, 5 Esp. livering up possession may be 203. maintained against her husband (r) See c. 4, Notice to Quit, without any new demand ; Lake ante. v. Smith, 1 B. & P. N. R. 174. («) Doe d. Matthew u. Jackson, (t) Page v. More, 15 Q. B. 684. 1 Dougl. 175 ; Poole v. Warren, («) Lloyd v. Eosbee, 2 Camp. 8 A. & E. 582 ; Doe d. Lister v. 453 ; but see Co. Litt. 54 b. Goldwin, 2 Q. B. 143 ; Page v. (v) Sullivan v. Bishop, 2 C. & Moore, 15 Q. B. 684; Messenger P. 369 ; Wilkinson jj. Hall, 3 Bing. V. Armstrong, 1 T. R. 53 ; Hirst N. 0. 508. V. Horn, 6 M. & W. 393. If a Digitized by Microsoft® CH. V. j HOLDING OVEE. 287 4. Double Eent. By 11 Geo. II., c. 19, s. 18, " In case any tenant or tenants shall give notice of his, her, or their inten- tion to quit the premises by him, her, or them, holden at a time mentioned in such notice, and shall not accordingly deliver up the possession thereof at the time in such notice contained, then the said tenant or tenants, his, her, or their executors or administrators, shall from thenceforward pay to the landlord or land- lords, lessor or lessors, double the rent or sum which he, she, or they should otherwise have paid, to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum before the giving such notice could be levied, sued for, or recovered, and such double rent or sum shall con- tinue to be paid during all the time such tenant or tenants shall continue in possession as aforesaid." The landlord, therefore, may either distrain for the double rent, or bring an action for it upon the statute (m). The statute applies only to cases where the tenant has the power of determining the tenancy by a notice, and has given a valid notice to that effect (a;). It is immaterial whether the tenancy is in writing or by parol, and the notice to quit need not be in writing (y). The statute does not extend to weekly tenants (z). A tenant who has given no- tice, and paid double rent, may quit at any time, without giving a fresh notice (a) ; and the landlord may waive his claim to double rent by accepting single rent (b). {w) Johnstone v. Huddlestone, (z) Sullivan o. Bishop, 2 C. & 4 B. & G. 922. P. 359. (x) Ibid. See Farrance v. Elk- (a) Booth v. Maefarlane, ] B. ington, 2 Camp. 591. & Ad. 904. (y) Timmins v. Eawlinson, 3 (b) Doe d. Cheney v. Batten, Burr. 1603. Cowp. 243. Digitized by Microsoft® CHAPTER VI. EMBLEMENTS. 1. Where there is no Con- tract — where they may he claimed 288 out of what claimed ... 291 PAGE entry to take them ... 292 2. Where there is a Con- tract 232 1. Wheee there is no Contract. Where they may be claimed. The right to emblements is a riglit to the corn grow- ing upon the land on the determination of an un- certain estate by no act of the tenant. Emblements are allowed in order to encourage agriculture, for it would be obviously unjust to deprive the tenant of the benefit of the crop which he sowed at a time when he might reasonably expect to reap it (a). Thus where the tenant for life dies before harvest, his executors will be entitled to the crop, for that is the act of God (5). So the personal representatives of the incumbent of a benefice were held to be entitled to emblements of the glebe lands (cj. Where the tenancy is at will, or from year to (a) Co. Litt. 65 h ; 2 Bl. Com. 146. (6) Co. Litt. 55 b. (c) Williams on Exors. 603, 4th edit. See 28 Hen. VIII. c. 11. Digitized by Microsoft® CH. VI. J EMBLEMENTS. 289 year {d), or for an uncertain term of years, as a term for so many years if the tenant should so long live (e), the executor is entitled to the emblements (/). So also tenants by statute-merchant and recognizance under extent or elegit, are entitled to emblements where, by some sudden and casual profit arising between seed- time and harvest-time, the tenancy is determined by the judgment being satisfied [g). So upon the death of a tenant by the courtesy, the executors ai-e entitled to emblements (Ji). So also a tenant in dower, and a woman who has lands for her jointm-e, are entitled to emblements ; but the latter is not entitled to the crop which was sown at the time of her husband's death (J). If a lease be made to husband and wife during the coverture, and afterwards they are divorced causa prcecontr actus, the husband shall have the emblements, for the sentence which dissolves the marriage is the judgment of the law (J). Where the uncertain event upon which the deter- mination of the estate depends is the death or cesser of estate of the landlord, the common-law right has been qualified by the 14 & 15 Vict., c. 25, s. 1, which enables the tenant, in lieu of emblements, to hold over till the end of the current year. The section is as follows : — "Where the lease or tenancy of any farm or (d) Kingsbury v. Collins, 4 {(j) 1 Roll. Abr. 727, pi. 12 ; Bing. 207 ; Haines -v. "Welch, L. Barden's case, 2 Leon. 5i. E. 4 C. P. 91, 38 L. J. C. P. (/i) 1 Roper's "Husband and 118 Wife," 2S, 2d edit. (e) 1 Roll. Abr. 727, pi. 12. (i) 2 Inst. 80; 20 Hen. III. c. (/)1 Inst. 55 b; Co. Litt. 56 2 (Stat, of Merton); 1 Wms. Exors. a ; Knevett v. Poole, Cro. Eliz. 677, 6th edit. ; Fisher v. Forbes, 463 ; Vin. Abr. Emblements; Vin. Abr. tit. Emblements, pi. Kingsbury v. Collins, 4 Bing. 207 ; 82. Barden's case, 2 Leon. 54. (j) Gland's case, 5 Coke, 116. T Digitized by Microsoft® 290 DETERMINATION OP TENANCY. [PAKT III. lands held by a tenant at a rack-rent shall determine by the death or cesser of the estate of any landlord entitled for his life, or for any other uncertain in- terest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, and shall then quit, upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluction of time or other lawful means during the continuance of his landlord's estate ; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his predecessor or such tenant's lessor could have done if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such predecessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner, and the tenant respectively, shall, as between themselves and as against each other, be entitled to all the bene- fits and advantages, and be subject to the terms, conditions, and restrictions to which the preceding landlord or lessor, and such tenant respectively, would have been entitled and subject in case the lease or tenancy had determined in manner aforesaid at the expiration of such current year : Provided always that no notice to quit shall be necessary or required by or from either party to determine any such holding and occupation as aforesaid." Upon the other hand, where the estate is for a term certain, so that the tenant would sow at his own risk, or where the tenant voluntarily determines the lease by his own act, he or his executors will not be entitled to the emblements. So where a tenant at will himself determines the estate, he will not be Digitized by Microsoft® CH. VI. J EMBLEMENTS. 291 entitled (>^). And where the estate is to determine upon some act of the tenant — as if he does waste (I), or if he incur a debt upon which judgment is signed (m) — and he does the act provided against, he will not be entitled to the emblements. So where a clergyman resigns his living, he is not entitled to emblements, for it is his own act (n). And where a woman copyholder of certain land durante viduitate sud, according to the custom of the manor, sowed the land, and before severance of the em- blements took a husband, it was adjudged that the lord should have the emblements, because the estate deter- mined by the act of the lessee herself (o). If the person claiming the crop be not the sower of the crop, or his representative, he will not be entitled to the crop. Thus where a person who sows the land afterwards creates a life estate, the reversioner, and not the executor of the tenant for life, shall have the crop ; and if a tenant for life sows land, and afterwards grants over his estate, the executor of the grantee shall not have the crop (/>). As between an executor and a devisee, the emble- ments belong to the devisee, unless especially be- queathed to the executor {q). The doctrine of emblements extends to roots planted 0"* of which and other annual artificial profits (r). It will not, {h) Litt. s. 68, 5 Coke, 116 ; (o) Oland's case, 5 Coke, 116 a. Bulwer v. Bulwer, 2 B, & A. 470. (p) 1 Roll Abr. 727, pi. 21 ; (I) Oland's case, 6 Coke, 116 ; Knevett v. Poole, Cro. Eliz. 463 ; Com. Dig. Bieus, (G) 2 ; Wiggles- Grantham v. Hawley, Hob. 132. worth V. Dallison, 1 Doug. 207. (q) Cooper v. Woolfit, 2 H. & (to) Davis V. Eyton, 7 Bing. N. 122 ; Shep. Touch, by Preston, 154. 472. [n) Bulwer v. Bulwer, 2 B. cfe (r) Latham v. Attwood, Cro. Aid. 470. Car. 515, Co. Litt. 55 b, note (I) ; Digitized by Microsoft® 292 DETEEMINATION OF TENANCY. [PART III. therefore, extend to fruit-trees, oak, elm, and other trees, as these are not planted in anticipation of pre- sent immediate proiit, and take more than a year to come to perfection (s) ; and so it was held not to ex- tend to clover of which the crop was not to be taken within a year from the time of sowing it {t); nor will it extend to growing grass, for that is not an arti- ficial product (u), unless it be artificial grass, such as clover and the like (v). Entry to take Where the tenant is entitled to emblements, he is ^^^^- also entitled to free ingress and egress to take them (w), and if he sell them, the vendor will have the same right (x). But this right of entry does not involve a right of occupation, and it is doubtful whether a per- sonal representative of the tenant is not liable for rent, or to pay for the use and occupation if he occupies the land until the corn be ripe (y). 2. Wheee theke is a Conteact. Where there The right to take what is called the away -going IS a contract. ^^.^^ ^^^^ become a matter of express contract between the parties, or the subject of an implied contract arising from the custom of the country (z). Where the terms of the lease are inconsistent with the custom Evans v. Roberts, 5 B. & C. 829, (w) Co. Litt. 56 a ; Hayling v. 832. It has been held to extead Okey, 8 Ex. 531, 545. to teazles, Kingsbury v. Collins, (x) Shep. Touch. 2ii. 4 Biug. 202. (y) Plowden's Queries, No. 239; (s) Co. Litt. 55 b ; Com. Dig. 1 Wms. Exors. 679, 6th edit. See Biens, (G) 1. Strickland v. Maxwell, 2 Cr. & («) Graves v. Weld, 5 B. & Ad. M. 539 ; but see Beavan v. Dela- 105. hay, 1 H. Bl. 5; Griffiths v. (u) Co. Litt. 56 a; 1 Roll. Abr. Puleston, 13 M. & W. 358, post, 728; Com. Dig. Biens, (G) 1. p. 293. (v) Smith's L. & T. 2d edit. (z) Wigglesworth v. Dallison, 1 349 ; and see Graves v. Weld, Doug. 201 ; 1 Smith L. C. 520, supra. 6th edit. Digitized by Microsoft® from CH. VI.] EMBLEMENTS. 293 of the country, they will exclude it (a); but where they are not inconsistent, the custom may entitle the tenant to take the crop and to do everything which is necessary for that purpose (5), even when the lease is under seal (c). The custom will operate, unless it can be collected jLiom the instrument, either expressly or impliedly, that the parties do not mean to be governed by it {d). If the lease contains no stipulation as to the mode of quitting the premises, the off-going tenant is en- titled to his away-going crop according to the custom of the country, even though the terms of the holding be inconsistent with such custom, for the custom does not operate until the holding is determined (e). Where the custom of the country was that the tenant should have the way-going crop on the regiilar ex- piration of a Ladyday tenancy, the tenant entered on Ladyday, but the tenancy was determined on the 1st of June, it was held that the custom would not ope- rate (/). The tenant's interest in his way-going is not a mere easement, but a possession, which continues until the crop is carried away (^). (a) See ante, Covenants, part i., ston, 13 M. & W. 466 ; Wiltshear 0. 4, s. 7. 1!. Cottrell, 1 E. & B. 674 ; (6) Beavan v. Delahay, 1 H. Bl. Muncey v. Dennis, 1 H. &N. 216. 5; Boraston n. Green, 16East. 71 ; (e) Holding «. Pigott, 7 Bing. Caldecott v. Smithies, 7 C. & P. 465 ; Muncey v. Dennis, 1 H. & 808. N. 216. (c) Wigglesworth v. Dallison, (/) Thorpe i). Eyre, 1 A. & E. 1 Doug. 201. 926. (d) Hutton V. Warren, 1 M. & (g) Beavan v. Delahay, 1 H. Bl. W. 466, 477, where the authori- 5 ; Griffiths v. Puleston, 13 M. & ties are collected ; Clarke v. Koy- W. 358. Digitized by Microsoft® 294 DETERMINATION OF TENANCY. [PAET III. A strictly legal custom whicli has immemorially ex- isted is not necessary, for a comnion usage of tlie neigh- bourhood, collected from what is usually done in cases of tenancies from year to year, as well as from the usual course pursued where tenants hold under regular leases, is sufficient (Ji). The tenant may either sue the landlord for the value of the tillages, manure, &c., which he is entitled to by the custom {i), or he may recover it from the in- coming tenant if he has made a contract with him to that effect (j). Such a contract does not affect any of the existing rights of the landlord [k). Under a clause that the tenant should be entitled to a way-going crop to be taken from the land, &c., and which way-going crop it was agreed should be left for the landlord or the incoming tenant at a valuation, it was held that the tenant had no right to reap the crop, he not having any interest distinct in that crop so as to be able to dispose of it, or to authorise any person but the landlord himself to take that crop. In reality the clause was nothing but a measure by which he might recoup himself (J). If the outgoing tenant carries away the corn at the end of his term when he is not entitled to do so, the landlord may bring trover (m), but not the incoming tenant (n). (h) Senior v. Armytage, Holt, (i) Petrie v. Daniel, 1 Smith R 197, Woodfall L. & T. p. 989, 199. 10th edit. (I) Per Bayley, B., in Strickland (i) Faviell -it. Gasooigne, 7 Ex. v. Maxwell, 2 Cr. & M. 539, 552. 273 ; Mousley v. Ludlam, 21 L. (m) Davies v. Connop, 1 Price, J. Q. B. 64. 53. U) Mouncey v. Dennis, 1 H. & (n) Borraston v. Green, 16 East. N. 216. 80, 81, i«»- Bailey, J. Digitized by Microsoft® CH. VI. J EMBLEMEN!rS. 295 The same remark which has been made, ante, pp. 124, 128, viz., that a custom which is not inconsistent with the terms of the lease may be incorporated with the lease, extends to a custom to leave hay, straw, manure, &c., upon the premises, and to receive a compensation for them {p). Sometimes by the terms of the agreement the outgoing tenant may dispose of them to the incoming tenant (jo). Where the tenant is entitled to be paid a fair price for the straw left, but nothing for the manure, he is only entitled to be paid for the straw at a fodder price, viz., one half the market price {q). Where a tenant who was bound to bring back dung for all hay sold and sent by him off the premises, sold some hay to a purchaser without informing him of the contract by which he was bound, it was held that the incoming tenant might refuse to let the purchaser remove the hay (r). Where the tenant is to bring back manure in lieu of hay or straw sold off the premises, it should be clearly expressed whether the manure is to be of the value of the straw, or only such a quantity as the straw sold would have produced (s). Where the lessee covenanted that he " should not nor would, during the last year of the term thereby granted, sell, &c., any hay, straw, or fodder, which should arise and grow in the said farm and lands," (o) Roberts v. Barker, 1 Cr. & (?) Clarke v. Westrope, 18 C. B. M. 808 ; Dalby». Hirst, 1 Bro. & 765, 25 L. J. C. P. 287. Bing. 224 ; Hutton v. Warren, 1 (r) Smith v. Chance, 2 B. & A. M. & "W. 466. 753. (fi) Legh V. Lillie, 6 H. & N. (s) Lowndes v. Fountain, 11 165, 30 L. J. Ex. 25 ; Hurst v. Ex. 487, 25 L. J. Ex. 49. Hurst, 4 Ex. 579 ; "" Goodall, 17 Q. B. 310. Digitized by Microsoft® 296 DETERMINATION OF TENANCY. [PAET III. the covenant was held to extend to hay, &c., which had arisen and grown at any time during the term {t). A covenant to pay £10 per ton for " hay, straw, or other fodder," sold or taken away, was held to extend to hay lanfit for food for cattle (u), Where the outgoing tenant was to sell the manure to the incoming tenant at a valuation, it was held that the possession and property remained in him until the valuation was made, and the incoming tenant -would be liable to an action of trespass if he removed it (v). It is not inconsistent with a tenancy from year to year that the outgoing tenant shall be paid for the tillages on the determination of his tenancy (w). In a strict tenancy at will, if the lessor enters before sowing, the lessee will not have the costs of ploughing and manuring (x). Where the custom is that the inconiing tenant shall pay for the tillages, and shall be paid back again upon leaving, he may recover the amount from the landlord, if there be no new tenant coming in (y). But where the tenant took a farm for fourteen years, and in the first year said he would leave, and the landlord said he might, it was held that he was not entitled to the tillages (z). It seems also that the custom would not (t) Gale V. Bates, 3 H. & C. 84, 13 W. R. 46 Q. B. ; Onslow v. 33 L. J. Ex. 235. , 16 Ves. 173. (m) Fielden v. Tattersall, 7 L. (x) Co. Lltt. 55 a, n. 4. T. N.S. Ex. 718. (2/) Favlell v. Gascoigue, 7 Ex. («) Beaty v. Gibbons, 16 East. 273. 116. (s) Whittaker v. Barker, 1 Cr. (w) Brocklington v, Saunders, & M. 113. Digitized by Microsoft® CH. VI.]. EMBLEMENTS. 297 apply where the term ceases upon the determination of the landlord's interest {a). There is also another kind of compensation which a tenant may be entitled to claim, either by the custom of the country, or by express agreement, and that is for tillage bestowed upon the land, the benefit of which still remains unexhausted. As to this also, the same remark applies which has been made, mite, p. 293, viz., that the custom will operate where it is not in- consistent with the covenants of the lease. A custom for the outgoing tenant to be paid a reasonable compensation for tillage is a reasonable custom (b). (a) See Faviell v. Gascoigne, 224 ; Hutton v. Warren, 1 M. & supra ; Womersley v. Dally, 26 W. 466 ; Senior v. Armytage, L. J. Ex. 219. Holt, 197. (5) Dalby v. Hirst, 1 B. & B. Digitized by Microsoft® CHAPTER VII. FIXTURES. PAGE PAGE Vhebe theee is no Ageee- 2. Wheee there is an Agbee- MENT— 298 MENT — 311 tenant' s fixtures ... 300 valuation 315 tradefixtures 303 agricultural fixtures ... 307 when to ie removed ... 310 1. Wheee there is no Agreement. Wherethere is When personal inanimate chattels are affixed to the no agreemen . fpgg]^^]!^^ ^]^gy g^jg usually Called fixtures: and, in general, whatever chattels are affixed to the realty be- come part of it, partaking of all its incidents and properties. Hence, where there is no agreement, fixtures are usually the property of the landlord and not of the tenant, although the tenant may have affixed them (a). Where, at the time of making a demise, nothing is said respecting the chattels affixed to the premises, the tenant will be entitled to use of them during his (a) See Amo3 and Perard on Fixtures ; Judgments of Parke, B., & Martin, B., in Elliot v. Bishop, 10 Ex. 496, 11 Ex. 119; Elwes v. Maw, 2 Smitli's L. C. 114 ; Co. Litt. 63 a. See Wiltshire v. Cotterell, 1 E. & B. 674 ; Sheen v. Rickie, 5 M. & W. 175 ; Lee v. Eisdon, 7 Taunt. 191 ; Minshall v. Lloyd, 2 M. & W. 450-459 ; Walmsley v. Milne, 7 C. B. N.S. 115 ; Elwes v. Maw, 2 Smith's L. C. 114, and cases therein cited ; Horn v. Baker, 9 East. 215. Digitized by Microsoft® CH. VII. J FIXTUKES. 299 tenancy as part of the demise, and the landlord can- not afterwards, during the term, remove them or insist upon their being valued and paid for {b). It is a question of fact in each case whether the chattel is sufficiently annexed to the realty so as to form part of it (c). This question depends prin- cipally upon two circumstances : — 1. The mode of annexation to the soil or fabric of the house, and the extent to which it is united to them, whether it can easily be removed, integre, salve, et commode, or not, without injury to itself or to the fabric of the building. 2. On the object and purpose of the annexation, whether it was for the permanent and substantial improvement of the dwelling (d), or merely for a temporary purpose, or the more complete enjoyment and use of it as a chattel (e). Machinery and other articles, and even buildings, may be so erected as not to be let into the soil nor annexed to it, or to any building, in such a manner as to become part of the freehold, and to lose their chattel character. Thus barns, granaries, sheds, or mills erected upon blocks, rollers, pattens, pillars, or plates, resting on brickwork, but not affixed to the freehold by being- let into it or united to it by nails or otherwise, are not considered as fixtures, but as chattels removable by the tenant during the term, notwithstanding they may have sunk into the ground by their own weight (/). So a wooden mill or barn resting by its own weight on a brick foundation is not part of the freehold (g). (h) Goff V. Harris, 5 M. & G. C. & M. 177; Turner!;. Cameron, 573. L. R. 5 Q. B. 306, 39 L. J. Q. B. (c) Elwes V. Maw, 2 Smith's L. 125. C. 14, and cases therein cited. (/) Huntlyii. Russell, 13 Q.B. (d) 20 Hen. VII. c. 13. 572. (e) Hellawell v. Eastwood, 6 (g) Rex v. Otley, 1 B. & Ad. Ex. 295 ; Trappes v. Harter, 2 161 ; Wanshorough v. Maton, 4 Digitized by Microsoft® 300 DETERMINATION OF TENANCY. [PART III. Certain articles movable in their nature are some- times considered to be constructively annexed to the structure to which they belong, such as the doors and windows of a house, or the gate of a field suspended on hooks, keys, winches, rings, and other detached appendages necessary for the convenient use of fix- tures, which are deemed parcel of, and pass with, the fixtures to which they are appurtenant ill). Where a fixture is severed from the freehold for a special and temporary object, as for the purpose of being repaired, it does not lose its original character of a fixture. Thus a millstone taken from a mill for the purpose of being picked and hammered is not distrainable (i). If the roof of a building be annexed by a tenant to the freehold, although the roof is kept in its position merely by its own weight, and can be removed without injury to the walls on which it is sustained, yet, as the tenant has no right to remove the whole build- ing, he cannot carry away the roof, which forms an essential part of the structure (_/). Tenant's fix- Questions concerning fixtures in the case of land- lord and tenant usually arise in the nature of excep- tion to this general rule, viz., that whatever is affixed to the freehold becomes parcel of it. Tenant's fix- tures are the property or privilege which a tenant, in the absence of any agreement, continues to possess, and the right of removal that belongs to him when he has, during his term, annexed anything to the demised premises which may be considered a fixture {K). This A. & E. 884. See also Dean ii. (») Wigstow's case, Tear-book, AUalley, 3 Esp. 11 ; Pentou ». 14 Hen. VIII. fo. 25, pi. 6 ; Robart, 4 Esp. 33; Fitzherbert Gorton w. Falkner, 4 T. E. 667 ; V. Shaw, ] H. Blao. 258 ; Martin Place v. Fagg, 4 M. & Ry. 277. «. Roe, 26 L. J. Q. B. 129. See supra, tit. Distress, p. 197. (A) Liford's case, 11 Rep. 50 b ; (j) Wansborough v. Maton, 6 Pyot V. St Jolin, Cro. Jac. 329, 2 A. & E. 884-889. Bulst. 102, Shop. Touct. 470. {k) Amos and Ferard on Fix- tures. Digitized by Microsoft® CH. VII. J FIXTUKES. 301 property or privilege extends — (1.) to fixtures erected by the tenant for the purposes of trade and manufac- tures, and sometimes, if combined with other purposes, (2.) to fixtures erected by the tenant for ornament and convenience. As to the latter class, a tenant has been allowed to remove fixtures put up for convenience or ornament, and which are of such a description as to be capable of being disannexed without any permanent injmy to the inheritance, such, for instance, as stoves and grates fixed into the chimney with brickwork, and marble chimneypieces and wainscot, fixed with screws {I). In Grrymes v. Boweren (m), a tenant was allowed to take away a pump which was attached to a stout perpendicular plank resting on the ground at one end, and at the other end fastened to the wall by an iron pin, which had a head at one end and a screw at the other, and went completely through the wall. The judgment of the Lord Chief- Justice Tindal in that case contains a good summary of the law with regard to this class of fixtures : — " It is difiicult to draw any very general, and, at the same time, precise and accurate, rule on this subject ; for we must be guided, in a great degree, by the circumstances of each case, the nature of the article, and the mode in which it is fixed. The pump, as it is described to have been fixed in this case, appears to me to fall within the class of removable fixtures. The rule has always been more relaxed as between landlord and tenant than as be- tween persons standing in other relations. It has been holden that stoves are removable during the term, and grates, ornamental chimneypieces, wains- cots fastened with screws, coppers, and various other tures, p. 18 ; HaUen v. Eunder, 1 & C. 686 ; Colegrave v. Dias C. M. & N. 266 ; Elliott;. Bishop, Santos, 2 B. & C. 76 ; Winn v. 10 Ex. 508. Ingilby, 5 B. & A. 625. (l) See Lawton v. Lawton, 3 (m) 6 Biug. 437. Atk. 13 ; K. 0. St Dunstan, i B. Digitized by Microsoft® 302 DETERMINATION OF TENANCY. [PART III. articles ; and the circumstances that, upon a change of occupiers, articles of this sort are usually allowed by landlords to he paid for by the incoming tenant to the outgoing tenant, is con&mafcory of this view of the question. Looking at the facts of this case, con- sidering that the article in dispute was of domestic convenience, that it was slightly fixed, was erected by the tenant, could be moved entire, and that the question is between the tenant and his landlord, I think the rule should be made absolute." There are five circumstances most material to be considered in ascertaining whether the tenant may re- move fixtures which he has put up for ornament, or for the convenience of his occupation, viz., 1. That the article was one of domestic convenience. 2. That it was erected by the tenant. 3. That it could be moved entire. 4. That it was but slightly fixed. 5. That the question was between landlord and tenant. The following articles have been held to fall within this class of tenants' fixtures : — Hangings, tapestry, pier-glasses, chimney - glasses, and iron backs to chimneys (n) ; beds fastened with ropes or nails to the ceiling (o) ; stoves, mash-tubs, locks, bolts, and blinds (p) ; cupboards standing on the ground and supported by holdfasts (q) ; coffee-mills and malt- mills (r) ; iron ovens, clock cases (s) ; carpets at- tached to the floor by nails, for the purpose of keeping them stretched out, curtains, pictures, and other like matters of an ornamental nature which are slightly (n) Beck v. Rebow, 1 P. Wms. (q) Reg. v. St Dunstan, 4 B. & 9i ; Harvey v. Harvey, 2 Str. C. 686. 1141. (r) Reg. V. Inhabitants of Lon- (o) Noy's Maxims, 167, 9tli edit. ; donthorpe, 6 T. R. 377. The miU Keilw. 88. waa clearly a chattel in this case. ip) Colegruve v. Dias Santos, 2 (s) 4 Burns' Eccl. Law, 411, 9th B. & C. 76. edit. Digitized by Microsoft® CH. VII. J FIXTURES. 303 attached to the walls of the dwelling-house as furni- ture {t). So where a rector erected in the garden of the rectory two hothouses apart from and unconnected with the rectory, and which consisted of a brick wall two feet from the ground, upon which was placed a frame and glasswork, it was held that the frame and glasswork being removable without injury to the free- hold, passed as a personal chattel to his executors (m). But where a conservatory was erected by a tenant on a brick foundation attached to the dwelling-house, and communicating with it by windows opening into the conservatory, and a flue passing into the parlour chimney, it was held that it became part of the free- hold, and could not be removed (v). Fruit trees and shrubs planted by the tenant, not in the way of his trade are not removable by him (tv) ; nor even a border of box or flowers (x). But it is to be noticed that tenants' fixtures, while they are annexed to the land or building, are not chattels, but form parcel of the realty. The right of removal does not alter the fact that the fixture con- stitutes part of the realty until severance (y). The right of the tenant to remove fixtures set up by Trade fixtures. (t) See judgment in Hellawell (w) Wyndham v. Way, i Taunt. V. Eastwood, 6 Ex. 313 ; Bishop 316. V. Elliott, 10 Ex. 496, in error, 11 (x) Empaon v. Soden, 4 B. & Ex. 113. Ad. 65. (tt) Martin v. Eoe, 7 E. & B. (y) Lee v. Risdon, 7 Taunt. 237, 26 L. J. Q. B. 129. 190. See Hellawell v. Eastwood, (v) Buckland v. Butterfield, 2 6 Ex. 295, 20 L. J Ex. 154 ; Reg. Bro.&Bing. 54. See the judgment v. North Staffordshire Railway of Dallas, C.J. See also Martin Co., 30 L. J. M. C. 68 ; Reg. v. V. Roe, 7 E. & Bl. 237, 26 L. J. The Southampton Dock Co., 14 Q. B. 129 ; West v. Blakeway, 2 Q. B. 587 ; Reg. v. The Inhabi- M. & G. 729 ; Penry v. Brown, 2 tants of Lee, 35 L. J. M. C. Starkie, 403 ; Jenkins v. Gething, 105. 2 J. & H. 520. Digitized by Microsoft® 304 DETERMINATION OF TENANCY. [pART III. him for the purposes of his trade, and the ground upon which this privilege was based, was plainly stated by Lord Holt, C. J., in Poole's case (z). It was there held that a soap-boiler might well remove vats set up by him for the purposes of his trade, and this he might do by the common law, and not by virtue of any special cus- tom in favour of trade and to encourage industry (a). This right of the tenant to remove fixtures which he has annexed to the demised premises for the pur- pose of carrying on his trade, has been indisputably established by subsequent cases, principally upon the ground of the benefit to the public (5). This right is of wider extent than the right that the tenant has to remove ornamental fixtures. Thus in Lawton v. Lawton(c), where the question was whether a steam-engine set up for the benefit of a colliery, by a tenant for life, should at his death go to his executors or to the tenant in remainder. Lord Hardwicke in his judgment thus explains the prin- ciple of the rule respecting trade erections : — " To be sure, in the old cases, they go a great way upon the annexation; and so long ago as Henry YIL's time, the Courts of law construed even a copper and furnace to be part of the freehold (^). Since that time, the general ground the Com-ts have gone upon of relaxing the strict construction of law is, that it is for the benefit of the public to encourage tenants for (s) Salk. 368. 259 n. 11. Per Tindal, C.J., in (a) Per- Lord Holt, C.J., as to Mansfield v. Blackburne, 6 Biug. reasons given for this privilege N. C. 439 ; Elwes v. Maw, 3 East. in the earlier cases. See Amos 38, 54 ; Heap v. Barton, 12 C. B. on Fixtures, 22-27 ; 2 Smith's 274 ; Fisher v. Dixon, 12 C. C. L. C. 5th edit. 161. & F. 312. (J) See Amos on Fixtures, p. (c) 3 Atk. 13. 32, and the cases there cited ; (d) See Year-book, 42 Edw. Penton v. Roberts, 2 East. 90; III. p. 6, pi. 19; Year-book, 20 Com. Dig. Waste, (D) 2, 2 Saund. Hen. VII. p. 13. Digitized by Microsoft® CH. VII. J FIXTUEES. 305 life {e) to do what is advantageous to the estate dur- ing their term." The next question is what trade fixtures a tenant may lawfully remove. He may lawfully remove vessels and utensils of trade, such as furnaces, coppers, brewing vessels, fixed vats, salt-pans, tables, parti- tions, and the like (/) ; machinery in breweries, col- leries, mills, &c., as steam-engines, cider-mills, and the like {g). Also certain buildings for trade, such as a varnish-house, at least if they are built on plates laid on brickwork (Ji). So sheds or buildings, called Dutch barns, formed of uprights, rising from a founda- tion of brickwork may be removed {i). It has not been established that a tenant may remove substantial and extensive additions to the premises, although he may have built them for the convenience of his trade, such as limekilns (7), pottery or brick-kilns, workshops, storehouses, and other buildings; nor indeed is it clearly determined that trade erections of a less sub- stantial kind are in all cases removable by the tenant. Cases, therefore, of this description are subject to doubt, wherever the removal of the article would deteri- orate the freehold to which it is attached, or where the structure or substance of the thing itself would be (c) Decisions in favour of exe- East. 68 ; Mansfield v. Black- cutors of tenant for life in tail or burne, 6 Bing. N". C. 439. in fee, as against the remainder- {g) 3 Atk. 12, Amb. 114, 3East. man, reversionor, or heir, may be .53 ; Davis v. Jones, 2 B. & Aid. considered as governing authori- 165. ties in support of a tenant's rights. (A) Penton v. Eobart, 2 East. See Amos on Fixtures, pp. 28, 29. 88. See also Lord Dudley v. Lord (i) Dean v. Allalley, 3 Esp. 11. Warde, Amb. 114 ; Lawton v. See 3 East. pp. 47, 55, 66. Salmon, 1 H. Black. 259, in notis, (j) See Thresher -d. East Lon- 3 Atk. 16, in notis, S. C. don Waterworks Co., 2 B. & C. (/) Poole's case, 1 Salk. 368; 608 ; Judgmt. of Lord Brougham Lavpton v. Lawton, 3 Atk. 13 ; in Fisher v. Dixon, 12 CI. & F. Lord Dudley v. Lord Warde, 312 ; Niblett v. Smith, 4 T. R. Amb. 114; Lawton v. Salmon, 1 504. H. Black. 259 ; Elwes v. Maw, 3 U Digitized by Microsoft® 306 DBTEEMINATION OF TENANCY. [PAET III. destroyed in the removal (/e). It would seem, how- ever, that a building accessory to the principal thing — e.g.^ an engine-house built to shelter a removable engine — ^might be removed (/). There are other circumstances besides those that relate to the construction of the thing affixed, which it may sometimes be necessary to consider in order to judge of the right of the tenant to remove trade erections. Thus the existence of a custom in respect of the property in question (»w), the intention of the party in making the erection, the injury occasioned to the freehold by its removal, and the comparative value to the respective claimants. Mr Aiaos, in his work on Fixtures (w), after examining the authorities, says, "The following rule, however, may perhaps be found to be most consistent with the adjudged cases. That things which a tenant has fixed to the freehold for the purposes of trade or manufacture may be taken away by him, wherever the removal is not con- trary to any prevailing practice ; where the articles can be removed without causing material injury to the estate ; and where, in themselves, they were of a per- fect chattel nature before they were put up, or at least have in substance that character, independently of their union with the soil ; or, in other words, where they may be removed without being entirely demo- lished, or losing their essential character or value. If an erection, put up in relation to trade, can be severed without violating any one of these conditions, it may very safely be affirmed, that whatever be its magnitude, construction, or mode of annexation, it is (J) See 12 CI. & F. 312 ; Walm- (Z) Elwes v. Maw, 3 East. 38. sley V. MUne, 29 L. J. G. P. (m) Culling v. Tiififaall, Bui. N. 97 ; Whitehead v. Bennett, 27 P. 34 ; Davis v. Jones, 2 P. & L. J. Ch. 474 ; Foley v. Addeu- Aid. 165. brooke, 13 M. & "W. 174. {n) Page 48. Digitized by Microsoft® CH. VII.J FIXTUEES. 307 a fixture whicli a tenant is privileged to remove. It is not, however, meant to be inferred, that because in any particular instance these circumstances do not all concur, therefore an article cannot be removed by the tenant. On the contrary, it is not inconsistent with some of the decisions to say, that things may be removable, although these requisites are not com- pletely fulfilled. And, indeed, when the liberality with which the Courts have generally been disposed to construe the indulgence in favour of trade is con- sidered, it is not improbable that they would extend the privilege even to cases where not one of these conditions is found to be satisfied. The rule, there- fore, here proposed is only oifered as an affirmative one, that wherever the above-mentioned circumstances do concur, there an article may confidently be pro- nounced to belong to the tenant. And although it may be thought that this rule is too narrow to be of much practical utility, still no other could safely be laid down ; because, upon looking into the judgments of the Courts, it is impossible not to see that, in a disputed claim between landlord and tenant, the absence of any one of the requisites which have been mentioned might, with propriety, be urged against the exercise of the tenant's right." At common law a tenant in husbandry has not the Agricultural same privilege as a tenant in trade ; for he cannot Satires, take away fixtures which he has affixed to the demised premises at his own expense, for purposes which are merely agricultural. Thus it has been held that a tenant cannot remove a beast-house, carpenter's shop, fuel-house, cart-house, pump-house, or fold-yard wall, erected for the use of his farm, even though he leaves the premises exactly in the same state as he Digitized by Microsoft® 308 DETEBMINATION OF TENANCY. [PAKT III. found them on his entry (o). This rule, however, is confined to articles of a strictly agricultural nature. For if the object and purpose of an erection has also relation to a trade of any description, the tenant may take it away, notwithstanding it is the means of obtaining the profits of land, subject to the principles before stated in the case of trade fixtures. Thus a tenant may take away a mill for making cider (p) ; or machinery for working mines and collieries (q) ; or, it would seem, utensils set up by the tenant for manufacturing salt from springs on the demised premises (r). So a nurseryman or gardener is en- titled to remove and dispose of young trees and shrubs which he has planted for the purpose of sale (s). So it would seem that a tenant might remove fruit-trees also, although of full bearing age, if they are nursery- trees, such as he might fairly deal with in his trade {t). But it has been held that a tenant of garden ground could not plough up strawberry beds, although he had purchased them, and although there was a joractice to pay for such plants as between outgoing and incoming tenants («<). Now by the 14 & 15 Vict, c. 25, s. 3, " If any tenant of a farm or lands shall, after the passing of this Act, with the consent in writing of the landlord for the time being, at his own cost and expense, erect (o) Elwes V. Maw, 3 East. 38. Risdon, 2 East. 191 ; and Penton See judgment of Lord Elleu- v. Robart, 7 Taunt. 91. borough, 2 Smith L. C. 164, and (<) Wardell v. Usher, 3 Scott's notes. N, Rep. 508. ( p) Lawton v. Lawton, 3 Atk. (u) Wetherell v. Howells, 1 12. Camp.' 237. This case was de- (}) LordDudley t>. Lord Warde, cided on the ground that the Amb. 113. ploughing up of the plants was (r) Lawton v. Salmon, 1 H. an injury maliciously done to the Blao. 259, in notis. See Amos on reversion, and that the plants Fixtures, 60-63. were not removed by the tenant (s) Wyndham v. Way, 4 Tauut. for sale in his ordinary ocou- 316, per Heath, J. See Lee v. pation. Digitized by Microsoft® CH. VII.] FIXTURES. 309 any farm building, either detached or otherwise, or put any other building, engine, or machinery, either for agricultural purposes, or for the purposes of trade and agriculture (which shall not have been erected or put up in pursuance of some obligation in that behalf), then all such buildings, engines, and machinery shall be the property of the tenant, and shall be removable by him, notwithstanding the same may consist of separate buildings, or that the same, or any part there- of, may be built in, or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plight and condition, or as good plight and condition, as the same were in before the erection of anything so removed : Provided, nevertheless, that no tenant shall, under the provision last aforesaid, be entitled to remove any such matter or thing as aforesaid, with- out first giving to the landlord, or to his agent, one month's previous notice in writing of his intention so to do ; and thereupon it shall be lawful for the land- lord, or his agent on his authority, to elect to purchase the matters and things so proposed to be removed, or any of them, and the right to remove the same shall thereby cease, and the same shall belong to the land- lord ; and the value thereof shall be ascertained and determined by two referees, one to be chosen by each party, or by an umpire to be named by such referees, and shall be paid or allowed in account by the land- lord who shall have so elected to purchase the same." In general, a tenant must remove his fixtures be- When to be fore the expiration of his tenancy (v). In Lyde v. ''^™°™<3- Eussell (m), this rule was expressly recognised and {v) Poole's case, 1 Salk. 368 Ex parte Quincey, 1 Atk. 477 Dudley v. "Warde, Amb. 113 , Year-books, 20 Hen. VII. 13, 21 Hen. VII. 26 ; Minshall v. Lloyd, 2 M. & W. 450 ; Pugh v. Arton, L. R. 8 Eq. 626. (w) 1 B. & Ad. 394. Digitized by Microsoft® 310 DETEKMINATION OF TENANCY. [PART III. approved by Lord Tenterden, C.J., who added, " According to these authorities, then, the property in fixtures which would be in the tenant if he removed them during the term, vests in the landlord on the determination of the term." Sometimes a tenant under certain circumstances may retain his right of removing his fixtures, where he continues in posses- sion after the expiration of his tenancy, and this ■would seem (x) to depend upon the question whether he had intended to abandon his property in the fixtures. But even in this case the tenant may be liable to an action at the suit of his landlord for being on the premises after his tenancy has expired (y). If the interest that the tenant has in the demised premises be uncertain, or if he is strictly a tenant at will, or tenant pur autre vie, he will be allowed a reasonable time to remove his fixtures after the actual determination of his tenancy (z). So where the ten- ancy is determined by the death of the lessor (a). But where steam-engines were removable by the lessee, and had not been removed previously to the lessor entering for a forfeiture, it was held that trover could not be maintained for them ((5). So where a lessor re- enters for a forfeiture, by reason of the tenant having become a bankrupt, the bankrupt or his assignees cannot afterwards sever and remove any fixtures (c), except in pursuance of a special stipulation in that behalf (of). So where a lessor recovers possession under an ejectment for a forfeitm'e, the tenant has no {x) See judgment of Lord (J) Minshall v. Lloyd, 2 M. & Kenyon, C.J., in Penton v. W. 450 ; Mackintosh v. Trotter, 3 Robart, 2 East. 88 ; Hallen v. M. & W, 184. But see Sumner Kunder, 1 Cr. M. & N. 275. v. Bromilow, 34 L. J. Q. B. 130. [y) Penton v. Robart, supra. (c) Weeton v. Woodcock, 7 M. (z) Weeton v. Woodcock, 7 M. & W. 14 ; Pugh r. Arton, L. R. & W. 14, per Parke, B., in Mack- 8 Eq. 626. intosh V. Trotter, 3 M. & W. 184. (d) Stansfield v. The Mayor of (a) Heap v. Barton, 12 C. B. Portsmouth, 4 C. B. N.S. 120, 27 278 ; Martin v. Roe, 7 E. & B. L. J. C. P. 124 ; Sumner v. 237. Bromilow, supra. Digitized by Microsoft® CH. VII.J FIXTURES. 311 right afterwards to sever and remove any fixtures (e). Where the purchaser of lands having brought an ejectment against the tenant from year to year, the parties entered into an agreement that judgment should be signed for the plaintiff, with a stay of execution till a given period; it was held that the tanant could not in the interval remove buildings, &c., from the premises which he had himself erected during his term, and before the action was brought {/). Where the landlord, during the term, by letter de- clined to buy the tenant's fixtures, but added, " I have no objection to your leaving them on the premises, and making the best terms you can with the incoming tenant;" such letter was held not to operate as a valid license (it not being under seal) ; and if the new tenant refuse to pay for the fixtures so left, or to permit them to be removed, no action of trover will lie for them, whilst they remain unsevered from the freehold (^). 2. Where there is an Agreement. If there is an express agreement between the land- Where there lord and tenant respecting fixtures, the rules and meut!*^*^' principles before stated will be overruled by that agreement. Thus if a tenant covenants to repair the demised premises and all erections built or that may be afterwards built thereon, such covenant will prevent the tenant from taking down an erection put up by himself for the purpose of his' trade (Ji). So where the lessee has covenanted to deliver up the premises at the (e) Minshall v. Lloyd, 2 M. & (g) Eoffey v. Henderson, 17 Q. W. 450 ; Mackintosh ii. Trotter, B. 574 ; Leader v. Homewood, 5 3M. &W. 184. But see Sumner C. B. N.S. 546. ■0. Bromilow, 34 L. J. Q. B. 130. (h) See the following eases : — (/) Fitzherbert v. Shaw, 1 H. Naylor .;. Collinge, 1 Taunt. Blao. 258 ; Heap v. Barton, 12 19 ; Thresher v. East London C. B. 274. Waterworks Co., 2 B. & C. 608 ; Digitized by Microsoft® 312 DETERMINATION OF TENANCY. [PART III. end of the term, together with all dues, &c., and all other things which now are, or, any time during the said term shall be, fixed or fastened to the freehold, he has no right to remove trade fixtures (2). So custom may sometimes regulate the relative rights of landlord and tenant with regard to fixtm-es (J). But any such custom will be set aside by an ex- press agreement inconsistent with it (k). There- fore, before a tenant severs an article from the freehold, it is necessary that he should examine his claim, not only with reference to the general law of fixtures, but also as it may be affected by any covenant or stipulation in his lease. If a tenant, at the expiration of his t^rm, is desirous of renewing it, or if he enters into any fresh agreement respecting the premises, he should be careful to make a stipulation as to his fixtures, otherwise by making such fresh engagement he may lose his property therein {I). When a tenant, at the commencement of his term, pm'chases of the landlord articles affixed to the premises, his right of removal depends on the con- tract between them. In a contract which concerns Dean v. Allalley, 3 Esp. 11 ; Earl of Mansfield v. Blaokburne, 6 Bing. N. C. 426 ; Penry v. Brown, 2 Starkie, 403; West v. Blakeway, 2 M. & G. 729, 9 Dowl. 846 ; Haslett V. Burt, 18 C. B. 162, 893, 25 L. J. C. P. 201, 295 ; Wilson V. Whately, 1 J. & H. 436, 7 Jur. N.S. 908 ; Dumergue V. Rumsay, 2 H. & C. 777, 33 L. J. Ex. 88 ; Storer v. Hunter, 3 B. & C. 368 ; Clark v. Crown- Bhaw, 3 B. & Ad. 804 ; Horn v. Baker, 9 East. 215, 2 Smith L. C. 161, 4th edit. ; Pairburn v. Eastwood, 6 M. & W. 679 ; Foley V. Addenbrooke, 13 M. & W. 174, Amos on Fixt. 90 ; Reg. v. Topping, M'Clel. & You. 544; Martyr v. Bradley, 9 Bing. 24 ; Bishop V. Elliott (in error), 11 Ex. 113, 24 L. J. Ex. 229. The Court below decided that the lessee had the right to sell only the trade fixtures ; Elliott v. Bishop, 10 Ex. 496, 522, 24 L. J. Ex. 33 ; but the Judges were much divided in opinion ; Drake V. Braddyll, M'Clel. 217, 13 Price, 455. (i) Bidder v. Trinidad Petro- leum Co., 17 W. E. 153. ij) Trappes v. Harter, 4 Tyrwh. 603, S. C. 2 Cr. & M. 153 ; Davis ■0. Jones, 2 B. & A. 165 ; Wether- all V. Howells, 1 Camp. 227 ; CuUiEg u. Tu£fnall, Bull. N. P. 34 ; Wansborough v. Maton, 4 A. & E. 884. (k) Wiltshear v. Cottrell, 1 E. & B. 674. (I) See Amos on Fixtures, 117. Thresher v. East London Water- works Co., 2 B. & C. 608. Digitized by Microsoft® CH. VII. J FIXTURES. 313 realty as well as fixtures, if it is intended that the fix- tures should be paid for separately, a stipulation to that effect should be inserted (m) ; for without such stipulation fixtures would pass to the vendee like timber upon land {n). Contracts for the sale of fix- tures are not within the Statute of Frauds, as they are not goods or chattels within the meaning of the statute ; nor do they, although annexed to the free- hold, constitute an interest in land (o). But a me- morandum of the actual sale of fixtures requires a conveyance stamp, and it makes no difference that it is in the past tense {p). A reversionary interest in trade fixtures will pass by an agreement in writing though not under seal {q). Where a lessee, who had power to remove a greenhouse fixed to the freehold, agreed to sell the lease, together with the greenhouse and furniture, plants and crops, for a certain sum, but was afterwards unable to obtain thelessor's consent to the assignment of the lease, which was necessary ; it was held that the contract was an entire one, and that the lessee could not sue for the price of the greenhouse (r). A steam-engine erected for the pur- pose of working a colliery, to be used by the lessee of such colliery during his term, but to be held as the property of the landlord subject to such use, was held not to pass to the assignees of the tenant on his bankruptcy, on the ground that it did not come within the description of " goods and chat- tels " in the 12 & 13 Vict, c. 106, s. 125, nor had the bankrupt the actual or apparent owner- ship (s). In a later case it was held that fixtures, (m) Colegrave v. Dias Santos, (p) Horsall v. Hey, 2 Ex. 778. 2 B. & C. 76. (q) Petrie v. Dawson, 2 C. & (m) Crockford v. Alexander, 15 K. 138. Tes. 138; Boydell ii. M'Michael, (r) Sleddon v. Cruikshank, 16 1 C. M. & R. 177. M. & W. 71. (o) Hallen v. Eunder, 1 C. M. (s) Coombes v. Beaumont, 5 B. & R. 275 ; Lee v. Risdon, 7 & Ad. 72, ex parte Broadwood Taunt. 191. Id. 631. Digitized by Microsoft® 314 DETEEMINATION OF TENANCY. [PAET III. part of which were erected before a mortgage and part afterwards, and which were by law remoyable as be- tween landlord and tenant, as well as on the principle of the benefit of trade, passed to the mortgagee and not to the assignees of the bankrupt mortgagor under the same section (t). Where copper-roller manufacturers, being seised in fee of a mill and land, erected thereon steam-engines, machinery, &c., for the purpose of their trade, and then mortgaged in fee the mill and land, with all fixtures, &c. , and afterwards became bank- rupt ; it was held that the mortgagees were entitled to all the machinery, &c., fixed to the freehold, and that the deed did not require to be registered as a bill of sale under the 17 & 18 Vict., c. 36 (u). But a mortgage of trade fixtures without the mill or land to which they are annexed is a mortgage of personal chattels within the meaning of 17 & 18 Vict., c. 36, as explained by sect. 7, which includes " fixtures and other articles capable of complete transfer by delivery" (v). And such fixtures will be deemed to be in the order and disposition of a mortgagor in the event of his bank- ruptcy, whilst he remains in possession thereof (ro). The registration of the mortgage under the Bill of Sale Act (17 & 18 Vict., c. 36), makes no difference in this respect (x). By a mortgage of a mill, the stones, tackling, and implements pass to the mortgagee (y). So do looms and other machinery fixed to the floor (^). So do trade fixtures which before or after the mortgage have been afiixed to the freehold by the mortagor for («) Ex parte Reynel, 2 Mont. (r) Badger v. Shaw, 2 E. & E. D. & De G. 443. 472, 29 L. J. Q. B, 73 ; Re Daniel, (m) Mather v. Fraser, 2 K. & ex parte Ashby, 25 L. T. R. 188. J. 536, 25 L. J. Ch. 361 ; Boyd (y) Place v. Fagg,4 M. & E. 277; V. Shorrock, L. E. 5 Eq. 72, ^x yarfe Bentley re West, 2 Mont. 37 L. J. Ch. 154. D. & D. (v) Waterfall v. Penistone, 6 (2) Boyd V. Shorrock, supra ; E. & Bl. 876, 26 L. J. Q. B. 100. Re Dawson, Tate, & Co., 16 W. R. (w) Whitmore v. Empson, 23 424. Beav. 313, 26 L. J. Ch. 364. Digitized by Microsoft® CH. VII. J FIXTURES. 315 the purpose of trade, and not for the improvement of the inheritance, and which are capable of being re- moved without damage to the freehold (a). An equi- table mortgage of a leasehold public-house with the fixtures therein, consisting of ordinary house fixtures and trade fixtures, will be sufficient to prevent any of them being in the order and disposition of the lessee on his becoming bankrupt (5). Under an equitable mortgage, by the simple deposit of a lease unaccom- panied by any memorandum, the tenant fixtures will be included (c). Upon the demise of a house, it is usually agreed be- Yaluation. tween the landlord and tenant that the fixtures shall be taken at a valuation — i.e., such fixtui'es as a tenant would ordinarily be entitled to remove if he had put them up. It is expedient that such fixtures should be enumerated in the conveyance by schedule or other- wise, when it is intended that they should be paid for separately from the premises demised {d). If the landlord agrees to make an allowance for the fixtures at the end of the term, it would seem that those fix- tures only should be valued which were paid for by the tenant at the commencement (e). When it is agreed between an outgoing and in- coming tenant that the fixtures on the premises are to be taken at a valuation, the broker should value such things to the incoming tenant as under the general law of fixtures are removable between a landlord and his tenant, and all fixed articles upon the premises (a) Culwick V. Swindell, L. R. (c) Williams v. Evans, 23 Beav. 3 Eq. 249, 37 L. J. Ch. 173; 239. Climio V. Wood, L. B. 3 Ex. 257, {d) Colegrave v. Bias Santos, 37 L. J. Ex. 158. 2. B. & C. 76 ; Thresher v. East (6) Ex parte I3arolay, 5 De G. London Waterworks, 608. M. & G. 403. («) See Amos on Fixtures, 351. Digitized by Microsoft® 316 DKTEKMINATION OF TENANCY. [PAKT III. falling -within this description should be included in the valuation, although they may in fact have been originally purchased of the landlord by the outgoing tenant. But the outgoing tenant cannot insist on anything being appraised which, as against his land- lord, he is not authorised by his lease to sever. If an incoming tenant agree with an outgoing tenant for the purchase of his fixtures, he should require that the landlord be made privy to the transaction, otherwise the incoming tenant may find that he has no right to remove them at the end of his tenancy (f). The rights of incoming and outgoing tenants are regu- lated in a great degree by custom (g). The valuation of the fixtures requires an appraisement stamp (i^). (/) Elliot V. Bishop, 10 Ex. Aid. 165; Wetherall j;. Howells, 496, 11 Ex. 113 ; Burt v. Haslett, 1 Camp. 227. 18 C. B. 162, 893. See MiBshall (A) Amoa on Fixtures, 357. V. Lloyd, 2 M. & "W. 450. See Stamp Act, 1870, 33 & 34 (g) See Davis u. Jones, 2 B. & Vict. o. 97. Digitized by Microsoft® PAKT IV. CHANGE OF PARTIES. CHAPTER I. BY ACT OF THE PARTIES. 1. By Landlord — . PAGE 317 attornment 318 2. Bt Tenant 321 3. CONSEQDKNCBS — at common law . . 322 hy 32 Sen. VIII. c 34 322 4. Covenants running WITH THE Land — word ' assigns,' use qf 326 5. Assignment of part 328 A CHANGE of parties may take place eitlier by the act of the parties themselves, as by assignment, attorn- ment, or underletting, or by the operation of law, as through the death of either party, or through bank- ruptcy, marriage, or proceeding at law under a writ of execution. 1. By Landlord. A landlord may by deed assign his reversion (a), By landlord. and the consequences of such assignment as they affect the covenants will be considered, post, ss. 3-5. So also he may mortgage his property subsequently to the making of the lease, and such mortgage will ope- (a) Beely v. Perry, 3 Lev. 155. Digitized by Microsoft® 318 CHANGE OF PAETIES. [PART IV. rate as an assignment of the reversion (b). So he may assign his property for the benefit of his credi- tors, but this will be considered under the title Bank- ruptcy, post, c. 2, s. 2. We shall now consider the eifect of attornment and acts amounting to attornment. Attornment. Attornment is the consent of the vassal to the new lord upon alienation or transfer, and without this attornment a grant was in most cases void or incom- plete (c). By various Acts of Parliament restrictions against alienation have been removed, and principally by the Statute oiquia emptores(18 Ed. I., c. 1), and the 12 Car. II., c. 24. The doctrine of attornment continued to a still later period, until, by the 4 & 5 Anne, c. 16, it was made no longer necessary to attorn in order to com- plete a grant or conveyance ; and by the 11 Geo. II., c. 19, s. 11, the attornment of any tenant does not affect the possession of any lands, unless made with the consent of the landlord, or to a mortgagee after the mortgage is forfeited, or by direction of a court of justice. By sect. 10 of the 4 & 5 Anne, c. 16, "No tenant shall be prejudiced or damaged by payment of any rent to any grantor or conusor, or by breach of any condition for non-payment of rent before notice shall be given to him of such grant by such grantee or conusee " (^d). (6) Rogers r. Humphrey, 4 A. {d) See Lumley ti. Hodgson, 16 &B. 299,313. Seepost. East. 99 (c) Litt. B. 551. Digitized by Microsoft® CH. I.J BY ACT OF THE PARTIES. 319 A payment of rent by a tenant to his landlord before the day when it becomes due is not a payment of rent "within this section ; therefore, where a tenant paid two quarters' rent in advance to his landlord, in igno- rance of an assignment by the landlord of his interest in the premises to a thii'd person, it was held that the assignee, after notice of the assignment to the tenant, was entitled to distrain (e). The effect of the statute of Anne is, therefore, to substitute a giving of notice for attornment {/). Where the party comes in by judgment of law — e.g., as tenant by elegit — no attornment is necessary (^). An assignee of the reversion by way of mortgage can sue for rent, &c., without attornment; but a mortgagee before the lease is not in the position of assignee of the reversion until attornment {h). After attornment he may distrain for arrears of rent thereby admitted to be due (z). It seems, however, that, without attornment, a notice by the mortgagee to pay rent, if it is acquiesced in by the tenant, would operate as an attornment {j). Payment of rent may be evidence of an attornment, but the circumstances of the case may rebut the presumption of an attornment; as where rent was (e) De Niools v. Saunders, 39 and Chapter of St Paul's, 19 L. J. L. J. C. P. 296, L. R. 5 C. P. Q. B. 84. 689. (h) Evans v. Elliott, 9 A. & E. (/) See Moss V. Gallimore, 1 342. See the notes to Moss v. Smith L. C. 5th edit. 542. Gallimore, 1 Smith L. C. 542. (g) Lloyd v. Davies, 2 Ex. 103. (i) Gladman v. Plumer, 15 L. As to where, in an avowry or cog- J. Q. B. 79. nisance, it is necessary to aver an ( ;) Brown v. Storey, 1 M. & Q. attornment, see Vigers v. Dean 117. Digitized by Microsoft® 320 CHANGE OF PARTIES. [PAET IV. piiid after notice of an adverse claim, though the pre- cise nature of the claim was unknown {k). An instrument whereby the tenant merely puts one person in the place of another as his landlord, with- out varying the terms or conditions of his holding, is an attornment; but if it varies the terms, &c., it will amount to an agreement (I). The tenant who attorns is generally estopped from denying the title of the person to whom he has at- torned (m). There is a distinction, however, between the case where a tenant has actually received possession, from one who has no title, and the case where he has merely attorned by mistake or fraud. In the former case, the tenant cannot, except under very special circum- stances, dispute the title ; in the latter he may (n). Where a person having possession of land under a good title inadvertently attorns and pays rent to a stranger, he is not estopped after the determination of the tenancy from setting up his own title in an eject- ment by the landlord (o). (A) Fenner v. Duploc, 2 Bing. Saunders, 4 B. & C. 529 ; Cooke 10 ; Gregory v. Doidge, 3 Bing. v. Loxley, 5 T. R. 4. 474 ; Claridge v. Mackenzie, 4 M. (») Cornish v. Searell, 8 B. & & G. 143. C. 471, per Bayley, J., 475, cit- {l) Doe d. Lindsay v. Edwards, ing Rogers v. Pitcher, 6 Taunt. 5 A. & B. 95 ; Cornish v. Searell, 202, and Gravenor r. Woodhouse, 8 B. & C. 471 ; Doe d. Wright v. 1 Bing. 38. See also Gregory v. Smith, 8 A. & E. 255. Doidge, 3 Bing. 174 ; Doe d. (m) Gravenor v. Woodhouse, 2 Plevin v. Brown, 7 A. & E. 447 ; Bing. 71; Doe d. Marlow v. Brooks;. Biggs, 2 Bing. N.C. 572. Wiggins, 4 Q. B. 367 ; Hill v. (o) Accidental Death Insurance Digitized by Microsoft® CH. I.J BY ACT OF THE PARTIES. 321 2. By Tenant. A change of parties may take place by the tenant By tenant. assigning his term, and the consequences of such an assignment will be considered, post, ss. 3, 4, 5. A change of possession takes place upon an under- letting by the tenant ; and with respect to under- leases, it should be observed that the original lessee is liable upon the covenants entered into by him, although the under-lessee may have entered into similar covenants with the original lessee {cj). It is the duty of the under-lessee to ascertain the contents of the original lease (r). An under-lease should contain an express covenant on the part of the under-lessee to perform all the covenants and conditions, &c., in the original lease, except such as it is not intended he should perform. It is not sufficient to insert in the lease similar cove- nants, even if couched in the identical words of the covenants of the original lease, for the covenants may not after all be the same, as they may begin to operate at different times, and so may vary substantially in their operation (s). 3. Consequences op Assignment. At common law, when the landlord assigned the At common tenant became bound to pay rent to the assignee, but ^^' Co. V. Mackenzie, 9 W. R. 713, (»•) Cesser v. CoUinge, 3 Myl. 5 L T. N.S. 20. & K. 283 ; GrosTenor v. Green, (5) Logan x. Hall, 4 C. B. 598, 28 L.J. Ch. 173. 613 624. (*) See Logan v. Hall, supra. X Digitized by Microsoft® 322 CHANGE OF PARTIES. [PART IV. the express covenants of the lease being distinct contracts, and only choses in action, did not pass, and neither lessee nor assignee could sue upon them (t). By 32 Hen. By 32 Hen. VIIL, c. 34, it was enacted, "That VXII. u. 34. ^ persons being grantees or assignees to or by the King, or to or by any other persons than the King, and their heirs, executors, successors, and as- signs, shall have like advantage against the lessees, their executors, administrators, and assigns, by entry for non-payment of the rent, or for doing of waste, or other forfeiture, and by action only for not performing other conditions, covenants or agreements expressed in the indentures of leases, and grants against the said lessees and grantees, their executors, administra- tors, and assignees, as the said lessors and grantors, their heirs, or successors, might have had." Sect. 2 enacted, " That all lessees and grantees of lands or other hereditaments for terms of years, life, or lives, their executors, administrators, or assigns, shall have like action and remedy against all persons and bodies politic, their heirs, successors, and assigns, having any gift or grant of the King, or of any other persons, of the reversion of the lands and hereditaments so letten, or any parcel thereof, for any condition or covenant expressed in the indentures of their leases, as the same lessees might have had against the said lessors and grantors, their heirs and successors." Since this statute the assignee of the reversion and of the term stand in nearly the same position as the (() Wms. Saund. 240 a, note 2 ; Mai-tyn v. Williams, 1 H. & N. 1 Smith L. C. 51, 6th edit.; 817, 826, 26 L. J. Ex. 117. Digitized by Microsoft® CH. I. j BY ACT OF THE PASTIES. 323 heir-at-law (u) and tenant formerly did, both with re- spect to covenants in law (v) and express covenants (w), and can sue and be sued accordingly. The sta- tute applies to grantees of part of the reversion (a;). There are, however, some limitations to the operation of the statute. Causes of action which accrued previous to the assignment of the reversion will not pass with it (y). The statute does not extend to mere collateral cove- nants, but to such as run with the land(;2r). The statute only applies to leases by deeds, so that the as- signee of the reversion upon a lease not under seal cannot sue upon the lease (a), and the lessor in such case does not lose any of his rights of action against the lessee by assignment {b). Where a lessee assigns his term, he enters into covenants that all has been done by him to maintain the lease, and the assignee, on his part, covenants to pay the rent, and perform the covenants in the lease, and save harmless the assignor (c). A lessee continues liable in covenant to his lessor upon express (d) covenants, notwithstanding an as- (u) See "Webb v. RusseU, 3 T. B. 135 ; ElHot v. Johnson, L. R. R. 393. 2 Q. B. 120. (■v) See ante, tit. Covenanta, p. (J) Bickford v. Parson, 6 C. B. 114. 920. (w) Ibid. (c) Staines v. Morris, 1 V. & B. (x) Rawlingsw. Morgan, 34 L.J. 10 ; Wolveridge v. Steward, 1 Cr. C. P. 185. ^ M. 644 ; Harris v. Goodwyn, 2 (v) Hunt t. Bishop, 8 Exoh. M. & G. 405 ; Burnett v. Lynch, 676, 22 L. J. Ex. 337 ; Hunt v. 5 B. & C. 589. Remnant, 9 Exch. 636, 23 L. J. (d) It is said to be otherwise as Ex 135 ; Martyn v. Williams, to implied covenants. Batohelor 1 H & N 817 26 L. J. Ex. 117. v. Gage, 1 Sid. 447 ; SirW. Jones (2) Webb V. Russell, 3 T. R. 223 ; Auriol v. Mills, 4 T. R. 98 ; 393. See post, sect. 4, p. 324. Williams v. Burrell, 1 C. B. (a) Standen v. Christmas, 10 Q. 402. Digitized by Microsoft® 324 CHANGE OF PARTIES. [PAET IV. signment of the term and acceptance of rent (e), as well as to his assignee {/). There is an implied promise on the part of each successive assignee of a lease to indemnify the original lessee against breaches of covenants in the lease com- mitted by snch assignee during the continuance of his own term ; and such promise will be implied although each assignee expressly covenants to indemnify his immediate assignor against all subsequent breaches (9)- An action of covenant will not lie against the as- signee of a lessee for breaches committed after the assignee has assigned over to a third party {h), but he will be answerable for breaches committed before the assignment over (?). Where the right of action is given to the assignee by the statute, the privity of contract is transferred, and it seems that the original covenantee cannot sue 4. Covenants Eunning with the Lajid. Covenants The assignee of the reversion having by the thekiid.^^ statute {k) a right to sue the tenant, and the assignee of the term a right to sue the landlord upon covenants (e) Barnard v. Godscall, Cro. 21 ; Le Keux v. Nash, Str. 1222 ; Jac. 309 ; Norton v. Acland, Cro. Odell v. Wake, 3 Camp. 394 ; Car. 579 ; Glover v. Cope, 4 Mod. Onslow v. Corrie, 2 Madd. 330. 81; Marsh v. Bruce, Cro. Jac. See fiost, c. 2, Death of Lessee. 334 ; 1 Smith L. C. 56, 6th edit. (i) Barley v. King, 5 Tyrwh. (/) Brett V. Cumberland, Cro. 692. Jac. 621 ; Thursby 4>. Plant, 1 (j) Beeley «. Parry, 3Lev. 154; Wms. Saund. 241. Green v. James, 6 M. & W. 656. {g) Moule v. Garrett, L. R. 5 See Thursby v. Plant, 1 Wms Ex. 132, 39 L. J. Ex. 69. Saund. 240. (h) Taylor v. Shum, 1 B. & P. {k) Ante, p. 322. Digitized by Microsoft® CH. I.] BY ACT OF THE PARTIES. 325 which run with the land (J), or which touch and concern the thing demised, it is necessary to consider what these covenants are. All covenants in law {m), generally called implied covenants, run with the land (n). There are many express covenants which run with the land. Express covenants for quiet enjoyment {o), for further assurance Qo), for renewal (q), for repairs (r), and not to assign without license (s), run with the land. So a covenant to maintain a sea-wall (i), that the lessee should constantly reside on the premises {u), that either party should have power to determine the lease (»), not to carry on a particular trade (w), to leave part of the land as pasture, or to cultivate in a particular manner {x), to produce title-deeds (y), to supply water to houses at a certain rate (z), runs with the land. (I) Ante,^.\\5. runwiththe land unless ' (m) Ante, p. 135, et seq. are mentioned. See Philpot v. (») Ante, p. 136. Hoare, 2 Atk. 219, and the note (o) Campbell v. Lewis, 3 B. & to West v. Dobb, L. E. i Q. B. A. 392 ; "Williams v. Burrell, 1 C. 637, per Blackburn, J. B. 402. («) Morland v. Cook, L. R. 6 (p) Middlemore v. Goodale, Cro. Eq. 212, 267, 37 L. J. Ch. 825. Car. 503. (m) Tatem v. Chaplin, 2 H. Bl. (q) Boa V. Hayley, 12 East. 133. 464 ; Brook v. Bulkeley, 2 Ves. {v) Roe v. Hayley, 12 East. Sen. 498 ; Simpson ^. Clayton, 4 464. Bing. N. C. 758. (w) Per Lord EUenborough,, in (r) Dean and Chapter of Wind- Mayor of Congleton v. Pattison, sor's case, 5 Co. 24 ; Lougher v. 10 East. 130 ; Hunt v. Bishop, 8 Williams, 2 Lev. 92 ; Buckley v. Ex. 675, 9 Id. 635. Pirk, 1 Salk. 317 ; Wakefield v. {x) Cockson v. Cook, Cro. Jac. Brown, 9 Q. B. 209 ; Martyn <.. 125. Clue, 18 Q.B. 661. iy) Barclay v. Eaine, 1 Sim. & (s) Williams v. Earle, L. R. 3 St. 449. Q. B. 739, 37 L. J. Q. B. 231. (z) Jourdain v. Wilson, 4 B. & It seems that this covenant will not A. 266. Digitized by Microsoft® 326 CHAITGE OF PARTIES. [PAET IV. A covenant to insure premises within the operation of 14 G-eo. III., c. 78, s. 83(a), enabling the, owner to have the sum insured laid out upon the premises, was held to run with the land (b). Where in the reddendum there was a stipulation for doing suit to the mill of the lessor by grinding there all such corn as should grow on the premises, it was held that this was in the nature of rent, and was a cove- nant which ran with the land (c). A covenant to repair and leave in repaii- all build- ings, &c., which should be erected, was held to run with the land (d). So a covenant to build a new mill in lieu of an old one was held to run with the land (e). Where there was a covenant that fixtures and mov- able things should be kept in repair and restored, it was held that, so far as it related to fixtures, it ran with the land, but as to mere movables, it was other- wise (/). A covenant relating to a way or other profit appur- tenant goes with the land {g). Use of word Jq preparing covenants which are intended to run with the land, the " assigns " should always be men- (a) See the 22 & 23 Viet. e. 644, 1 C. & J. 105. In this case 35,8.7. "assigns" were named. See (i) Vernon v. Smith, 5 B. & infra. A. 1. (/) Williama v. Earle, L. R. 3 (c) Vyvian v. Arthur, 1 B. & Q. B. 739, 752. See also Gorton C. 410. V. Gregory, 3 B. & S. 90, 31 L. (d) MinshuU v. Oakes, 2 H. & J. Q. B. 302. N. 793, 27 L. J. Ex. -194. See (g) Cole's case, 1 Show. 388, 1 post, p. 327. Salk. 196. (e) Easterly v. Sampson, 6 Bing. Digitized by Microsoft® assigns. CH. I.] BY AOT OF THE PAETIES. 327 tioned ; for there is a class of cases in which assigns are bound if mentioned, but not otherwise ; and it is prudent to provide for the possibility of a covenant being held to belong to this class (k). There appears to be considerable doubt as to whether a covenant relating to something not in esse will run with the land or not (2). Such a covenant, accord- ing to Spencer's case, will not run with the land unless the " assigns " be named. This decision was followed in many cases, and, amongst others, in the case of Doughty v. Bowman (_;). The Court of Exchequer, however, thought the question whether the " assigns " were named or not was wholly immaterial, and, according to their view of the law, the sole question was whether the thing cove- nanted to be done would touch or concern the thing demised, or be merely collateral or personal (k). In a subsequent case in equity, Turner, L.J., noticed that a covenant did not purport to bind the assigns, as though that would not be immaterial ; but the case of MinshuU ». Oakes does not appear to have been cited (J). Covenants which are merely collateral or personal, or which relate only to the personal use and enjoy- ment of the land, and not to the permanent user of the land itself (ra), do not run with the land, even if assigns are expressly named {n). (h) Woodfall L. & T. 10th (i) Minshull v. Oakes, 2 H. & edit. 111. See note to West v. N. 806, 27 L. J. Ex. 194. Dobb, L. R. i Q. B. 637. (I) Wilson v. Hart, L. R. 1 Ch. (i) This questionis discussed at Ap. 463, 466, 35 L. J. Ch. 569, length in the notes to Spencer's 572. case. 1 Smith L. C. 46, 6th (m) Wilson v. Hart, supra. edit. (^) Spencer's case, szfp?'« ; Bac. (j) Doughty V. Bowman, 11 Q. Abr. tit. Covenant, (E) 2, 5 ; Att.- B. 444. See also Greenaway v. Gen. v. Cox, 3 H. L. Cas. 240 Hart, 1 0. B. 340, and Mayor of Webb v. Russell, 3 T. R. 393 Congleton v. Pattison, 10 East. Stokes v. Russell, 3 T. R. 678 130, per Lord EUenborough, C.J. Russell v. Stokes, 1 H. Bl. 562 Digitized by Microsoft® 328 CHANGE OF PARTIES. [pAET IV. Covenants which relate to mere movables do not run with the land (o). A joint-covenant with tenants in common does not run with the land or with the reversion (jo). 4. Assignment of Part. Assignment of An assignment may be made of a part of a rever- ^""^ ■ sion or term in the whole of the lands, or of the 'whole of the reversion or term as to part of the lands. The 32 Hen. VIII., c. 34, has been held to apply to these cases, and an action of covenant will lie against the assignee {q). An assignee of part of the estate demised, or the assignees of several parts jointly, or the assignee of five-sixths of the estate, being tenant in common with the assignee of the remaining sixth, may bring cove- nant (r). The assignee of a part of the lands is not liable to be sued for the whole rent, but only for a proportional part (s). Plight V. Glossop, 2 Bing. N. C. laston v. Hakewill, 3 M. & Gr. 125 ; Mayor of Congleton v. Patti- 297 ; Wright v. Burroughes, 3 C. son, 10 East. 130. B. 685 ; Badeley v. Vigurs, 4 E. & (o) Williams v. Earle, L. R. 3 B. 71 ; Palmer v. Edwards, 1 Q. B. 739, 752 ; Gorton v. Gre- Doug. 187 n. ; Stevenson v. gory, 3 B. & S. 90, 31 L. J. Q. B. Lambard, 2 East. 576. 302. {r) Com. Dig. tit. Covenant, (B) ip) Eoach V. Wadham, 6 East. 3 ; Simpson v. Clayton, 4 Bing. 289 ; Thompson v. Hakewill, 19 N. C. 758-780. C. B. N.S. 713, 720. (s) Holford w. Hatch, 1 Doug. {q) 1 Inst. 215 a ; Congham v. 183 ; Hare o. Cator, Cowp. 766 ; King, Cro. Car. 221 ; Kidwelly v. Curtis v. Spitty, 1 Bing. N. C. Brand, Plowd. 69 ; Twynam v. 756 ; WoUaston v. Hakewill, Pickard, 2 B, & A. 105 ; Yates v. supra. Cole, 2 Bro. & Bing. 660 ; Wol- Digitized by Microsoft® CH. I. J BY ACT OF THE PARTIES. 329 The lessee wlio assigns is still liable for the entire rent, for he cannot apportion it, and the covenant is personal as to him (s). Although covenants could be apportioned, yet it was otherwise at common law with respect to con- ditions (f). It was, however, held that the assignee of part of the reversion in the whole of the land might avail himself of a condition, though the assignee of the whole reversion in a part of the land could not (m). But now, by the 22 & 23 Vict., c. 35, s. 3, where the reversion upon a lease is severed, and the rent or other reservation is equally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent, or other reservation, in like manner as if such conditions or powers had been reserved to him as inci- dent to his part of the reversion in respect of the apportioned rent, or other reservation allotted or belonging to him. (s) Broom v. Here, Cro. Eliz. {t) Twynam v. Piokard, 2 B. &; 633 ; Ards v. Watkin, Cro. Eliz. A. 105. 637 ; Stevenson v. Lambard, 2 (it) Wright v. Burroughes, 3 C. East. 675, 579. B. 685. Digitized by Microsoft® CHAPTER 11. BY ACT OF LAW. 1. Death — 3. Maeeiaoe — of lessor. ... 330 of female lessor. . 342 of lessee, ... 331 of female lessee, . 343 2. Bankeupict, ... ... 334 4. Writs of ■RitEcnTiON, 348 A CHANGE of parties may take place by act of law as well as by the act of the parties themselYes. Thus the death of the lessor or lessee, the bankruptcy or marriage (in certain cases) of either, and execution under a process of law, will effect a change of parties. These will be considered in their order. Of lessor. 1. Death. If the reversion descends to the heir, he is affected by such covenants as run with the land (a), and may sue for breaches committed after the death of the lessor. The heir may sue for breaches committed after the death of the ancestor, although he is not named, and the covenant is made with the ancestor, his " executors, and administrators " (5). So also the heir is liable to be sued, whether named or not (c). He is, however, not answerable for breaches committed by the ancestor during life, unless named, and then only to the extent of the assets which he has by descent (d). (c) Andrew's Case, 2 Leo n.l04 ; Anon. Dyer 257 a. (d) Co. Litt. 209 a ; Anon. Dyer, 14 a; Giffard v. Young, 1 Lutw. ; Dyke v. Sweeting, (a) Lougher v. Williams, 2 Lev. 92 ; Com. Dig, Covenant, (B) 2,3. (S) Lougher v. WiUiams, 2 Lev. 92. Digitized by Microsoft® CH. II. J BY ACT OF LAW. 331 For breaches of covenant by the lessee, whether running with the land or not, which were made before the death of the lessor, the executors and adminis- trators are the proper persons to sue (e). When the covenants run with the land and descend to the heir, he cannot sue for breaches which hap- pened before the death of the ancestor, unless the substantial damage has taken place since the death (_/). If the reversion is a chattel, it passes to the executor or administrator, who is bound by and has the advan- tage of all the conditions and covenants {g). The executor of the lessor may sue his lessee for a breach of covenant committed in the lifetime of the testator ; and it is not necessary to aver any damage to the personal estate (Ji) unless it be a covenant upon which the heir alone can sue (z), or unless it be a mere personal contract (7). Upon the death of the lessee, his personal represen- Death of tative may be sued, in his representative capacity, for leasee, rent, or for breach of express covenant, to the amount of the assets (Ji) ; but he is not liable for breaches of implied covenants (0 broken after the death of the testator (m). Willes, 585 ; Buckley v. Nightin- (h) Raymond v. Fitch, 2 Cr. M. gale, 1 Str. 665; Derisley v. Cus- & R. 588 ; Ricketts v. Weaver, 12 stance, 4 T. R. 75. M. & W. 718. (e) See post, p. 331. (i) Kingdonf. Nottle, 1 M. & S. (/) Com. Dig. Administration 355; King v. Jones. 5 Taunt. (B) 13, Covenant, (B) ; Kingdon 418. V. Nottle, 1 M. & G-. 355 ; King (j) Ricketts v. Weaver, supra. V. Jones, 6 Taunt. 418 ; Orme v. (h) Tilney v. Norris, 1 Lord Broughton, 10 Bing. 533; Ray- Raymond, 553 ; Williams on Exe- mond V. Fitch, 2 Cr. M. & R. cutors, 1492 ; WoUaston v. Hake- 688 ; Ricketts v. Weaver, 12 M. will, 3 M. & Gr. 320 ; Kearsley v. W. 718. Oxley, 2 H. & C. 896. ig) Co. Litt. 209 a ; Com. (l) See ante, Implied Cove- Dig, tit. Covenant, (C) 1 ; Wil- nants, p. 135. liams V. Burrell, 1 C. B. 402. (m) Adams v. Gibney, 6 Bing. Digitized by Microsoft® 332 CHANGE OF PAETIES. [PART IV. If, however, lie be sued for rent as assignee, and the profits of the lease are less than the rent, and he has no other assets, he should plead that the premises are of less yearly value than the rent, that he has offered to surrender his lease to his landlord, and that he has no other assets (n), and should pay the actual value of the premises during the period into court (o). He must not, however, have depreciated the value of the rent by his own acts (jo), and he will be liable for the profit and advantage which he might have received from the premises to the amount of the rent due {q). But if he be sued as assignee for breach of any other covenant, the above plea will not avail him, and his only course seems to be not to enter upon the pre- mises at all (r), or to assign it over to some third party (s). See, however, the 22 & 23 Vict. , c. 35, s. 27, post, p. 333. He will not, however, be liable as assignee for future breaches of covenant when he has expended the amount of the sale of the lease, and all the other assets, in payment of simple contract debts (t). The profits of the land are to be applied, in the first 656 ; Penfold ». Abbot, 32 L. J. C. B. KS. 116; WoUaatou ti. Q. B. 67. Hakewill, 3 M. & Gr. 297. (n) Rubery v. Steeveus, 4 B. & (s) Taylor v. Shum, 1 B. & P. Ad. 241 ; Hornidge -o. Wilson, 21; Pitcher i;. Tovey, 4 Mod. 71 ; 11 Ad. & Ell. 645. Wilson v. Wigg, 10 East. 313. See (o) Patten u. Reid, 6 L. T. N. ante, Covenants which Run with S. 281 Q. B. the Land, p. 324. (p) Hornidge v. Wilson, supra. {t) Collins v. Crouch, 13 Q. B. (q) Hopwood V. Whaley, 6 C. B. 542 ; and it seems that he need 744. not retain the profits of the land (r) Tremere i>. Morison, 1 Bing. in order to provide for a future N.C. 89; Sleap v. Newman, 12 breach of covenant, unless it be for payment of rent. Digitized by Microsoft® CH. II. J BY ACT OF LAW. 333 place, by tlie executor to the discharge of the rent. If the profits are insufficient, he must pay the rent out of the assets, and he will not be answerable beyond his assets if he plead as above (u). Where a term is specifically bequeathed, it vests at first in the executor, and the legatee cannot enter until the assent of the executor is given {v). The executor cannot waive the term, although it be worth nothing, for he must renounce the executorship in toto or not at all (w). Formerly executors could not be charged in trespass for any personal wrong done by the testator, as for cutting down trees, &c. ; but now, by the 3 & 4 Will. IV., c. 42, s. 2, they may be sued for such wrongs com- mitted within six months before the death of the testator {x). Personal representatives are now protected from subsequent claims under leases after assignment by the 22 & 23 Vict., c. 35, s. 27, by which it is enacted, that where an executor or adminis- trator, liable as such to the rents, covenants, or agreements contained in any lease or agreement, for a lease granted or assigned to the testator or intestate whose estate is being administered, shall have satisfied all such liabilities under the said lease or agreement for a lease as may have accrued due and been claimed up to the time of the assignment here- after mentioned, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted (u) Ante, p. 332. 266, 1 Lev. 127 ; Ruhery v. (v) Doe d. Maberly v. Maberly, Stevens, 4 B. & Ad. 244, 1 Wms. 6 C. & P. 126 ; WoUaston ii. Exors. 642. . Hakewill, aupi-a. (x) Powell v. Eeee, 7 A. & E. {w) Hellier v. Casbard, 1 Sid. 426. Digitized by Microsoft® 334 CHAifGE OF PARTIES. [PAET IV. or agreed by the lessee to be laid out on the property demised or agreed to be demised, although the period for laying out the same may not have arrived, and shall have assigned the lease, or agreement for a lease, to a purchaser thereof, he shall be at liberty to distri- bute the residuary personal estate of the deceased to and amongst the parties entitled thereto respectively, without appropriating any part or any further part (as the case may be) of the personal estate of the deceased to meet any future liability under the said lease or agreement for a lease ; and the executor or adminis- trator so distributing the residuary estate shall not, after having assigned the said lease or agreement for a lease, and having, where necessary, set apart such sufficient fund as aforesaid, be personally liable in respect of any subsequent claim under the said lease or agreement for a lease ; but nothing herein contained shall prejudice the right of the lessor, or those claiming under him, to follow the assets of the deceased into the hands of the person or persons to or amongst whom the said assets may have been distributed. A similar provision is contained in sect. 28, for the protection of personal representatives liable as such to the rents, covenants, or agreements contained in any conveyance of chief rent, or rent-charge, or agree- ment for such conveyance. Leases made before the statute are within the above section (y). 2. Baukeuptcy. Bankruptcy. The Bankruptcy Act, 1869, 32 & 33 Vict., c. 71 (z), {y) Dodaon v. Sammell, 1 Drew (z) The 12 & 13 Vict. o. 106, & Sm. 575, 30 L. J. Ch. 799; 24 & 25 Vict. c. 134, 25 & 26 Smith V. Smith, 1 Drew & Sm. Vict. c. 99 (except s. 4, as to 384. County Court Judges sitting in Digitized by Microsoft® CH. II. J BY ACT OF LAW. 335 after providing that the property of the bankrupt shall become divisible amongst his creditors, and for the appointment of trustee by a general meeting of credi- tors vrho are to give directions as to the manner in vrhich the property is to be administered by the trustee (a), enacts, by sect. 22, " that where any portion of such estate (the property of the bankrupt) consists of copyhold or customary property, or any like pro- perty, passing by surrender and admittance, or in any similar manner, the trustees shall not be compellable to be admitted to such property, but may deal with the same in the same manner as if such property had been capable of being, and had been, duly surrendered or otherwise conveyed to such uses as the trustee may appoint ; and any appointee of the trustee shall be admitted or otherwise invested with the property accordingly." " Where any portion of the property of the bankrupt consists of things in action, any action, suit, or other proceeding for the recovery of such things, instituted by the trustee, shall be instituted in his official name, as in this Act provided; and such things shall, for the purpose of such action, suit, or other proceeding, be deemed to be assignable in law, and to have been duly assigned to the trustee in his official capacity." By sect. 23, " When any property of the bankrupt acquired by the trustee under this Act consists of land of any tenure burdened with onerous covenants, of unmarketable shares in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the Parliament), and 31 & 32 Vict. c. Vict. c. 83, s. 20, and the sche- 104, are repealed except as to dule. past transactions. See 32 & 33 (a) Sects. 14, 20. Digitized by Microsoft® 336 CHANGE OF PAETIES. [PAET IV. possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exercised any act of ownership in relation thereto, may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudi- cation, and if the same is a lease, be deemed to have been surrendered on the same date, and if the same be shares in any company, be deemed to be forfeited from that date, and if any other species of property, it shall revert to the person entitled on the determination of the estate or interest of the bankrupt, but if there shall be no person in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt. Any person interested in any disclaimed property may apply to the Court, and the Court may, upon such application, order possession of the dis- claimed property to be delivered up to him, or make such other order as to the possession thereof as may be just." " Any person injured by the operation of this section shall be deemed a creditor of the bankrupt, to the extent of such injury, and may accordingly prove the same as a debt under the bankruptcy." By sect. 24, " The trustee shall not be entitled to dis- claim any property in pursuance of this Act in cases where an application in writing has been made to him by any person interested in such property, requiring such trustee to decide whether he will disclaim or not, and the trustee has for a period of not less than tweni^^- eight days after the receipt of such application, or such Digitized by Microsoft® CH. II.] BY ACT OF LAW. 337 further time as may be allowed by the Court, declined or neglected to give notice whether he disclaims the same or not. If parties choose to conduct their affairs at common law, instead of taking the protection of this statute, they do it at their own risk, and cannot obtain any assistance from the statute, the provisions of which they have elected to disregard. Therefore if a man, whether as an assignee for creditors, or in his own right, takes an assignment of a lease, it becomes his by virtue of that assignment without any further act of acceptance (b). A point of a somewhat similar nature arose in several cases in Chancery, where the distinctions between cases of liquidation in bankruptcy, of composition by arrange- ment, and of ordinary bankruptcy, were pointed out (c). When a trustee disclaims, he will not be able to en- force a covenant by the landlord to purchase any buildings, fixtures, or improvements at the end of the term {d). By sect. 26 it is enacted, that, subject to the pro- visions of this Act, the trustee shall have power to do the following things : — 1. To receive and decide upon proof of debts in the prescribed manner, and for such purpose to ad- minister oaths. {h) White V. Hunt, L. R. 6 Ex. i25 ; Ex parte Key, in re Skinner, 32 ; Williams v. Bosanquet, 1 B. ib. 433 ; Birmingham Gaa Light & B. 238. Company, in re Adams, L. E. 11 (c) Ex parte Veuess, in re Eq. 204. Gwynn, L. R. 10 Eq. 419 ; Ex (d) Kearsey v. Carstair3,2 B. & ■parte Todhunter, in re Norton, ib. Ad. 716. Digitized by Microsoft® 338 CHANGE OP PARTIES. [PAET IV. 2. To carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same. 3. To bring or defend any action, suit, or other legal proceeding relating to the property of the bank- rupt. 4. To deal with any property to which the bankrupt is beneficially entitled as tenant in tail, in the same manner as the bankrupt might have dealt with the same ; and sects. 56 to 73 (both inclusive) of the Act of the session of the third and fourth years of the reign of King William the Fourth (chap. 74), for " the abolition of fines and recoveries, and for the substitution of more simple modes of assurance," shall extend and apply to proceedings in bankruptcy under this Act, as if those sections were here re-enacted and made applicable in terms to such proceedings. 5. To exercise any powers the capacity to exercise which is vested in him under this Act, and to execute all powers of attorney, deeds, and other instruments, expedient or necessary for the purpose of carrying into effect the provisions of this Act. 6. To sell all the property of the bankrupt (in- cluding the goodwill of the business, if any, and the book-debts due, or growing due to the bankrupt), by public auction or private contract; with power, if he thinks fit, to transfer the whole thereof to any person or company, or to sell the same in parcels. 7. To give receipts for any money received by him, which receipt shall eff'ectually discharge the person paying such moneys from all responsibility in respect of the application thereof. 8. To prove, rank, claim, and draw a dividend in the matter of the bankruptcy or sequestration of any debtor of the bankrupt. Digitized by Microsoft® CH. II.] BY ACT OP LAW. 339 By sect. 26, tlie trustee lias power to appoint the bankrupt to superintend the management of the pro- perty for the benefit of the creditors. By sect. 27, the trustee may, with the sanction ot the committee of inspection, amongst other things, mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts. The trustee in bankruptcy may assign the bank- rupt's lease without the landlord's license, notwith- standing the lessee's covenant not to assign without license (e) ; and where the bankrupt had assigned for the benefit of his creditors, yet the forfeiture was void against the assignee in bankruptcy (/). Trust property remains vested in the bankrupt (g) ; but by the 117th section, where the bankrupt is a trustee within the " Trustee Act, 1850" (>^), the Court may appoint a new trustee. Where the bankrupt has any beneficial interest, as, for example, in right of his wife, it passes to the trustee in bankruptcy (i). Machinery and fixtures attached to the freehold are part of the freehold during the term, and on the bank- ruptcy of the tenant do not pass to the trustee (7). (e) Doe d. Goodbehere v. Bevan, (i) Michel v. Hughes, 6 Bing. 3 M. & S. 353 ; Doe d. Cheere v. 689 ; Doe d. Shaw v. Steward. So Smith, 5 Taunt. 795. also a mere equity of redemption (/) Doe d. Lloyd v. Powell, 5 passes ; Vandenanker v. Des- B. & C. 308. borough, 2 Vern. 96. (g) 32 & 33 Vict. c. 71, s. 15, (J) Boydell v. M'Miohael, 1 C. pi. 1 ; Dangerfield 1). Thomas, 9 M. & R. 177 ; Ex parte Reynall, A. & E. 292 ; Houghton v. Koenig, 2 M. D. & D. 443 ; Walmsley v. ]8 C. B. 235. Milne, 7 C. B. N.S. 115, 29 L. (h) 13 & 14 Vict. c. 60. J. C. P. 97. Digitized by Microsoft® 340 CHANGE OF PAETIES. PART IV. By sect. 34, the landlord or other person to whom any- rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy,dis- train upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limi- tation, that if such distress for rent be levied after the commencement of the bankruptcy, it shall be available onlj- for one year's rent, accrued due prior to the date of the order of adjudication ; but the landlord or other person to whom the rent may be due from the bank- rupt may prove under the bankruptcy for the overplus due for which the distress may not have been available. By sect. 35, when any rent or other paj'^ment falls due at stated periods, and the order of adjudication is made at any time other than one of such periods, the person entitled to such rent or payment may prove for a proportionate part thereof up to the day of the adjudication, as if such rent or payment grew due from day to day. A landlord cannot enforce payment in full by the trustee of rent due before the bankruptcy, except by a distress for the arrears not exceeding one year's rent (k). He may distrain for all subsequent rent (1). A lease may contain a proviso for re-entry upon the bankruptcy of the lessee, his executors, administra- tors, or assigns (m), or be limited so as to cease upon the bankruptcy of the lessee (m), and the landlord may enter accordingly (o). (k) Gethin v. Wilkes, 2 Dowl. (m) Roe d. Hunter v. Galliers, 2 189. T. R. 133. (I) Briggs 17. Sowry, 8 M. & W. (n) Doe d. Lookwood v. Clarke 729 ; Newton v. Scott, 9 M. & W. 8 East. 185. 431, 10 Id. 471. (o) Doe d. Bridgman v. David, 1 C. M. & R. 405. Digitized by Microsoft® CH. II. J BY ACT OP LAW. 341 By the Companies Act, 1862, s. 63 (p), <' When an order has been made for winding up a company under this Act, no suit, action or other proceeding shall be proceeded with, or commenced against the company, except with the leave of the Court, and subject to such terms as the Court may impose." And by sect. 163, " Where any company is being wound up by the Court, or subject to the supervision of the Court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the Com- pany, after the commencement of the winding up, shall be void to all intents." Where an execution has been perfected by seizure before the commencement of the winding up, a sale after the commencement is not a " putting in force of the execution within sect. 163 {q). But where a land- lord, after an order for the winding up of a company, distrained for the rent of the offices due prior to the winding up, it was held that the distress was void (r). 3. Marriage. A change is also effected in the relations of the Marriage, parties to a lease by the marriage of a female lessor or lessee. The relations of husband and wife have been in some respect altered by the " Married Women's Pro- perty Act, 1870" (s). (p) 25 & 26 Vict. c. 89. Ch. 425, L. R. 2 Eq. 53 ; In re (a) Ex parte Parry, in re The Bastow & Co., 36 L. J. Ch. 899, Great Ship Co., 33 L. J. Ch. 245. h. R. 4 Eq. 618; In re The (r) In re The Progress Assur- Exhall Coal Mining Co., 33 L. J. anoe Co., ex parte The Liverpool Ch. 595. Exchange Co., 39 L. J. Ch. 504, (s) 33 & 34 Vict. c. 93. See L. R. 9 Eq. 370. See also In re post, p. 346. The London Cotton Co., 35 L. J. Digitized by Microsoft® essor. 342 CHANGE OF PAETIES. [PAET IV Of female In the case of a female lessor, upon lier marriage, her husband takes, during coverture, a freehold in- terest in her freeholds of inheritance (unless they be settled upon her with his consent at her marriage), and he may dispose of them by deed for their joint- lives, without her concurrence (f). When issue is born, the husband becomes tenant for life by the com-tesy of her freeholds and estates tail in possession (u). If there be no issue, then, on the death of the wife, the husband's interest ceases, and he cannot sue for rent accruing due subsequently (v). If, however, the letting were by the husband alone, he could sue, and the tenant would be estopped from denying his title (w). Upon covenants running with the wife's land or reversion, the husband may either sue alone or jointly with his wife, if the breaches are subsequent to the coverture (x), except for breaches of covenants for title and further assurance (y). («) Co. Litt. 351 a ; Bac. Abr. H. & N. 723, 28 L. J. ^Exch. tit. Baron and Peme,(C) 1; Robert- 325. son D. Norris, 11 Q. B. 916. He (w) See per Martin, B., in Howe can also make leases for twenty- v. Soarrott, supra ; Wallis v. one years. See the 19 & 20 Vict. Harrison, 5 M. & W. 142 ; North u. 120 ; and she can convey her v. Wyard, 2 Bulst. 233; Harcourt estate by deed acknowledged un- v. Wyman, 3 Exoh. 824 ; Parry der the 3 & 4 Will. IV. c. 74, v. Hindle, 2 Taunt. 180. with the husband's concurrence. (a;) Alebury v. Walby, 1 Str. See Jolly v. Haudcook, 7 Exch. 229 ; Dunstan v. Berwell, 1 WHs. 820. 224; Howell v. Maine, 3 Lev. (m) Co. Litt. 29 a, 30 b ; Doe d. 403 ; Bret v. Cumberland, Cro. NeviUe -o. Rivers, 7 T. R. 276, Jac. 399. 278. (y) Middlemore v. Goodall, 1 (v) Hill V. Saunders, 4 B. Roll. Abr. 348. & C. 529 ; Howe v. Scarrott, 4 Digitized by Microsoft® CII. II,] BY ACT OF LAW. 343 Arrears of rent, breaches of coyenant, &c., before marriage, are choses in action, which must be sued for jointly (2:). If the husband die without reducing into posses- sion the wife's choses in action, they survive to her (a). See, as to contracts, this subject fully treated of in " Addison on Contracts," 6th edit., 751. By the 15 & 16 Vict., c. 76, s. 40, counts and claims in actions by husband and wife may be joined, and separate actions consolidated (b). By sect. 141, marriage of the female plaintiff or defendant will not abate an action (<;). A female lessor who has made a lease at will does not void the lease by marriage, nor can she avoid it without the consent of her husband («^). The wife's acceptance of rent will confirm leases for years by deed made by her husband, or by herself and husband ; and her issue or heir will have the same power to confirm or avoid them (e). In the case of a female lessee, marriage gives to the {^f/j_f *^® (2) Hardey v. Robinson, 1 Keb. (6) See Stowe v. Jackson, 1 6 89 ; Milner v. Milnes, 3 T. R. C. B. 199 ; Morris v. Moore, 19 631 ; Caudell v. Shaw, 4 T. R. C. B. N.S. 359 ; Hemstead v. 361. So where the husband be- Phosnix Gas Co., 3 H. & C. comes bankrupt, the assignees 745. must join ; Sherrington v. Yates, (c) Wynne v. Wynne, 2 M. & 12 M. & W. 855. Gr. 8. (a) Richards v. Richards, 2 B. (d) Bac. Abr. tit. Baron and & Ad. 447 ; Gaters v. Madeley, 6 Feme, (E) ; tit. Leases, (C). M. & W. 423 ; Soarpellini v. (e) Bac. Abr. tit. Leases, (C). Atcheson, 7 Q. B. 864. Digitized by Microsoft® 344 CHANGE OF PARTIES. [PAKT IV. husband all the wife's chattels not put into settle- ment {/), and he may dispose of them without her concurrence. If he demise for part of a term of years, the rent will go to his executor or administrator, though the wife survive, or if he make a lease to commence after his death. But if the husband does not dispose of a chattel real of his wife, if she survive she shall have it (y). So a part of a term undisposed of survives to the wife (Ji). Where lands are demised to husband and wife, and husband grants an underlease, he may sue for an in- jury to the reversion, without joining his wife as a party to the suit (i), A husband cannot assign his wife's reversionary interest in leaseholds, if that interest could not have vested in the wife during coverture {j). A joint-tenancy may exist between a married woman and another, until the husband breaks it by disposing of the wife's moiety ; and if he die without disposing of it, the joint-tenancy will continue ; and if the wife die, the surviving joint- tenant, and not the husband, shall take the whole (k). A female lessee at will does not avoid the lease by (f) The husband can dispose of (h) Sym's case, Cro. Eliz. 33. a wile's chattels settled on her (i) Wallis v. Harrison, 5 M. & without his concurrence. Turner's W. 142. case, 1 Vern. 7 ; Factor v. (j) Day v. Duberley, 16 Beav. Semayne, 2 Vern. 270 ; Bates v. 33, 6 H. L. Caa. 388. Dandy, 2 Atk. 207. (k) Co. Litt. 185 b ; Com. Dig. {g) Bac. Abr. tit. Baron and tit. Baron and Feme, (E) 2 ; Bao. Feme, (C) 2. T. ; Com. Dig. tit, Abr. tit. Baron and Feme, (C) 2. Baron and Feme, (E) 2. Digitized by Microsoft® CH. II.] BY ACT OF LAW. 345 marriage, and she cannot avoid it subsequently without the consent of her husband (l). The husband is not liable in an action for use and occupation for occupation by his wife before marriage, unless at his special instance and request (m). If the husband and wife be evicted of a term which he has in right of his wife, and if he recover it in his own name, this vests the term in the husband (n). By the 6 Anne, c. 18, s. 35, every husband seised in right of his wife only, who after the determination of the estate or interest shall hold over, shall be adjudged a trespasser, and the persons entitled to the premises may recover in damages the full value of the profits received during the wrongful possession {o). As was stated, ante, pp. 341, 342, certain altera- tions have been introduced into the mode of dealing with the property of married women by the " Married Women's Property Act, 1870 " {p). The different species of property affected by that Act are apparently : — 1. Wages and earnings acquired (after the Act) in any employment, occupation, or trade (§■). 2. Money or property acquired (after the Act) by literary, artistic, or scientific skill (r). 3. All investments of the above (s). (I) Bao. Abr. tit. Baron and (o) See also Caton v. Coles, L. Feme, (E). R. 1 Eq. 581. (m) Richardson v. Hall, 1 Br. & (p) 33 & 34 Vict. c. 93. B. 50. (?) Sect. 1. (») Bac. Abr. tit. Baron and ()•) Ibid. Feme, (C) 2. (») Ibid. Digitized by Microsoft® 346 CHANGE OP PARTIES. [PAKT IV. 4. Any personal property to which a woman mai'- ried after the Act becomes entitled during marriage as next of kin to an intestate {t). 6. Any sum of money, not exceeding £200, to which a woman married after the Act becomes en- titled during marriage under any deed or will. 6. Freehold, copyhold, or customary-hold property, which descends upon any woman married after the Act, as heiress of an intestate, as far as regards the rents and profits thereof. The sections which seem most material to the pre- sent subject are as follows : — By sect. 1, it is enacted, that the wages and earn- ings of any married woman acquired or gained by her after the passing of this Act (m), in any employment, occupation, or trade, in which she is engaged, or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good dis- charge for such wages, earnings, money, and property. By sect. 7, where any woman married after the passing of this Act shall, during her marriage, become entitled to any personal property as next of kin, or one of the next of kin of an intestate, or to any sum of money not exceeding £200, under any deed or will, such property shall, subject and without prejudice to (t) Sect. 7. (u) 9th of August 1870. See s. 15. Digitized by Microsoft® CH. II. j BY ACT OF LAW. '' , 347 the trusts of any settlement affecting the same, belong to the woman for her separate use, and her receipts alone shall be a good discharge for the same. By sect. 8, where any freehold, copyhold, or cus- tomary-hold property shall descend upon any woman, married after the passing of this Act, as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settlement affecting the same, belong to such woman for her separate use, and her receipts alone shall be a good discharge for the same. By sect. 11, a married woman may maintain an action in her own name for the recovery of any wages, earnings, money, and property by this Act declared to be her separate property, or of any property belong- ing to her before marriage, and which her husband shall, by writing under his hand, have agreed with her shall belong to her after marriage as her separate property ; and she shall have, in her own name, the same remedies, both civil and criminal, against all persons whomsoever, for the protection and security of such wages, earnings, money, and property, and of any chattels or other property purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman ; and in an indictment or other proceeding it shall be sufficient to allege such wages, earnings, money, chattels, and property to be her property. By sect. 12, a husband shall not, by reason of any marriage which shall take place after this Act has come into operation, be liable for the debts of his wife contracted before marriage ; but the wife shall be Digitized by Microsoft® 348 CHANGE OF PARTIES. [PAET IV. liable to be sued for, and any property belonging to her for ber separate use shall be liable to satisfy, such debts as if she had continued unmarried. 4. By "Wkits of Execution. By writa of Lastly, it remains to be considered what is the effect produced upon the relations in which the parties stand to one another by the operationof awritof^^erz facias or of elegit. It is the duty of the sheriff upon seizure and sale under a writ of fieri facias, to assign the term by deed, and until he does so the term remains in the debtor, who may bring ejectment against the person to whom possession has been given (»). The purchaser is generally left to obtain possession by ejectment, or to recover his rent by distress or action (w). He is liable for the rent, and upon covenants con- tained in the lease {x) ; but the lessee continues liable notwithstanding the estate is taken from him against his consent (y). An equitable reversionary interest in a term cannot be seized and sold under a.fi.fa. or elegit {z). By the 1 & 2 Vict., c. 110, s. 11, it is enacted, that (v) Doe d. Hughes v. Jones, P. N. R. 461 ; Mayor of Poole v. 9 M. & W. 372 ; Playfair v. Mua- Wliitt, 15 M. & W. 571. It seems grove, 14 M. &W. 239. it may be by equity where the (w) Lloyd V. Davies, 2 Ex. 103; creditor has sued out an elegit Mayor of Poole v. Whitt, 15 M. & without effect. See Gore v. W. 671. Bowser, 3 Sm. & Giff. 1 ; Par- (x) 1 Doug. 184. tridge v. Foster, 34Beav. 1 ; God- {y) Auriol v. Mills, 4 T. R. 99. frey v. Tucker, 33 L. J. Ch. 559. (z) Scott J). Scholey, 8 East. See, however, Thornton v. Finch 467 ; Metcalfe v. Scholey, 2 B. & 4 Giff. 605 34, L. J. Ch. 466. Digitized by Microsoft® CH. II.J BY ACT OF LAW. 349 it shall be lawful for the sheriff, or other oificer to whom anj"^ writ of elegit, or any precept in pursuance thereof shall he directed, at the suit of any person upon any judgment which, at the time appointed for the commencement of this Act, shall have been recovered, or shall be thereafter recovered, in any action in any of Her Majesty's superior Courts at Westminster, to make and deliver execution unto the party in that behalf suing, of all such lands, tene- ments, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execu- tion is so sued, or any person in trust for him, shall have been seised or possessed of at the time of enter- ing up the said judgment, or at any time after- wards, or over which such person shall, at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit, in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out ; which lands, tenements, rectories, tithes, rents, and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the Court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a court of equity : provided always, that such party suing out execution, and to whom any copyhold or customary lands shall be so delivered in execution shall be liable, and is hereby required to make, perform, and render to the lord of the manor, or other person entitled, all such and the like pay- ments and services as the person against whom such Digitized by Microsoft® 350 . CHANGE OF PARTIES. [PART IV. execution shall be issued would have been bound to make, perform, and render in case such execution had not issued ; and that the party so suing out such execution, and to whom any such copyhold or cus- tomary lands shall have been so delivered in execu- tion, shall be entitled to hold the same until the amount of such payments, and the value of such ser- vices, as well as the amount of the judgment, shall have been levied: provided also, that, as against purchasers, mortgagees, or creditors who shall have become such before the time appointed for the commencement of this Act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case the Act had not passed. After the executit)n of an]inquisition by the jury, the sheriff returns the finding of the jury, and that he has caused the lands " to be delivered to [the execution creditor], by a reasonable price and extent, to hold, to him and his assigns, according to the nature and tenure thereof, according to the form of the statutes in such case made and provided, until the [debt and damages] in the writ mentioned, together with inte- rest upon the same, as therein mentioned, shall have been levied, as by the said writ is commanded" (a). This return when filed operates as an assignment of the reversion {V). The sheriff may deliver possession where the debtor is himself the occupier (c) ; but the tenants cannot (a) Chit. Forms, 342, llth edit. (c) Rogers v. Pitcher, 6 Taunt. (J) Lowthall 11. Tomkius, 2 Eq. 206 ; Chatfield v. Parker, 8 B. & Cas. Abr. 380 ; Taylor v. Cole, 3 C. 543. T. R. 295 ; Doe d. Da Costa v. Wharton, 8 T. R. 2. Digitized by Microsoft® CH. II.] BY ACT OF LAW. 351 be turned out of possession until the expiration of their terms {d'). But the tenant by elegit may sue or distrain for rent accrued after the return of the writ (d), but not before (e). For the law relating generally to writs o?fi. fa. and elegit, see Chit. Arch. Practice of Q. B., vol. i., 634- 670. (tQ Taylor v. Cole, supra; Doe & S. 565 ; Arnold v. Ridge, 13 C. d. Da Costa v. WhartoD, supra. B. 745. (e) Lloyd v. Davies, 2 Ex. 103 ; (/) Sharp v. Key, 8 M. & W. RainalDottom v. Buckhurst, 2 M. 379. Digitized by Microsoft® Digitized by Microsoft® INDEX. Abandonment of distress, 206. Acceptance of rent by lessor operates as a waiver of breach of covenant to insure, 125. waiver of notice to quit, 273. waiver of forfeiture, 260, 261. evidence of presumed yearly tenancy, 48, 105, 107, 261. Accidental fire. — See Fire. AoKNOWLEDQMENT by married women, 26. Action for apportioning rent, 179. for non-payment of rent, 180. assumpsit, 180, 182. covenant, 180. use and occupation, 180. for wrongful distress. — See Distress. for not farming according to good husbandry, 235. for non-repair, 236. of fences, 237. for waste, 237. of ejectment, 238. for breach of quiet enjoyment, 243. for not giving possession, 243. for holding over, 275. for double value, 284. for double rent, 287. by tenant for tillages, &c., 294. by landlord in trover against out-going tenant, 294. for breaches of covenant after assignment over to third party, 324. Administkatoks.— See Exeoutoes. of convict, leases by, 25. leases to, 30. Advance, rent payable in, 163 . z Digitized by Microsoft® 354 INDEX. Advowsons, lease of, 36. Agents, distress by, 189. notice to qwit by or to, 271. Agreement, distinction between, and leases. — See Leases. for future lease operating as a present lease, 58. for present lease operating as agreement for future lease, 61. effect of 8 & 9 Vict., e. 106, s. 3, 65. evidence of terms of holding, 66. enforceable in equity, 67. Agricultural fixtures. — See Fixtures. Aliens, leases to, 30. Allowances. — See Deductions. Animals, leases of, 35. not to be distrained, 192 n. (c), 196. when levant and couchant, 192 n. (c). of a stranger ejecting, 192 n. (c). ferce natures not distrainable, 200. beasts of the plough and beasts which gain the laud, 201. pursuit of beasts escaping, 201, 202. impounding of cattle, 211. Annuities, leases of, 40. Apartments. — See Lodgings. Apportionment of rent by ecclesiastical corporations, 18. by act of parties, or by law, 170. where rent will be apportioned, 170. where reversion of lessor is severed byalienation, 170. in respect of time under the Act of 1870, 176. where lessee's interest in part is destroyed, 170. where lessee loses interest before his rent is due, 172. where lessor dies before rent is due, 179. under 11 Geo. II. c. 19, 172. 4 & 5 Will. IV. ^. 22, 173. action for apportionment of rent, 179. of rent on assignment of part, 328. of covenants. — See Assignment of part, 329. Appraisement on distress for rent, 215. Appurtenances, what is included in the word, 86. Archbishops, leases by. — See Corporations. Arrears of rent go to executor, 331. Assent of executors to a bequest, 333. Assessed taxes recoverable in debt against executor, 331. — See Deductions. Assignees. — See Assignment. Assignees of bankrupts. — See BiNKRUPTcy. Digitized by Microsoft® INDEX. 355 Assignment, a lease for the whole term operates as an assignment, 11. consequences of, at common law, 321. by the 32 Hen. VIII. u. 34, assignee of reversion and of term may sue and be sued on the covenants, 322. limitations to the operation of the statute, 323. lessee continues liable, notwithstanding assign- ment, 311, 323, 324. implied promise by successive assignees to indem- nify original lessee, 324. action after assignment over to third party, 324. where right of action given to assignee by statute, 324. of part of term in whole of lands, 328. of whole of term as to part of lands, 328. assignee of part of lands only liable for proportional rent, 329. assignee liable for the whole, 329. apportionment of covenants and conditions at common law, 329. by the 22 & 23 Vict. c. 35, ». 3. Assigns, effect of the word in a covenant, 327. Assumpsit. — See Action. Attachment of rent when due, 183. Attainted persons, leases by, 25. leases to, 29. Attornment, definition of, 318. no longer necessary to complete a grant, 318. does not affect possession of lands, 318. unless with consent of landlord, 318. or to mortgagee after mortgage forfeited, 318. or by direction of court, 318. tenant not prejudiced by payment of rent before notice, 318. except by payment of rent before due, 319. effect of 4 & 5 Anne, c. 16, 319. no attornment necessary where party comes in by judgment of law, 319. attornment of tenant of mortgagee, 319. notice by mortgagee to pay rent operates as, 319. payment of rent evidence of attornment, 319. instrument of attornment not amounting to an agree- ment, 320. where terms of holding are varied, it amounts to an agreement, 320. estoppel by attornment, 320. Adctionebr, goods sent to, for sale, not distrainable, 198. Autre vie, leases by tenant pur autre vie, 8. Digitized by Microsoft® 356 INDEX. Adtee vie, presumption as to death of, 8. production of cestui que vie, 9. Avoidance of lease. — See Void and Voidable Leases, Confirmatio n of Leases. Away-going crop. — See Emblements. B, Bailiffs, distress by, 189. Bankruptcy — The Bankruptcy Act (1869), 33i. appointment of trustee, 335. admittance of trustee to copyholds, 335. actions in name of trustee, 335. disclaimer by trustee, 336. neglecting to give notice of disclaimer, 336, 337. parties not acting under the statute do not take the benefit of it, 337. trustee cannot enforce covenant after disclaimer, 337. powers of trustee, 337-339. trust property remains vested in the bankrupt, 339. beneficial interest passes to the trustee, 339. fixtures do not pass to the trustee, 339. landlord may distrain for one year's rent, 340. and prove under bankruptcy for the overplus, 340. may prove for proportionate part up to day of adjudi- cation, 340. proviso for re-entry, or determination of lease on bank- ruptcy of tenant, 340. winding up under Companies' Act, 341. Beasts of the plough, distress of, 201. Beer, covenant to purchase from lessor, 128. Bishops, leases by, 16. — See Corporations. Botes. — See Estovers. Breaches of covenants. — See Covenants. Brewers, leases by, covenant to deal with lessors for all the beer, 128 . Broker, should not be appraiser of distress, 216. costs of distress, 217. Buildings, tenants' right to remove, 307-309. for public and charitable purposes, leases of, 33. Building or repairing leases — granted by the Crown, 16. by municipal corporations, 16. by ecclesiastical corporations, 19, 20. C. Carriages, whether distrainable, 199. Cattle. — See Animals. may be demised, J 6. Digitized by Microsoft® INDEX. 357 Cattle, young of cattle belong to lessee, 36. Cbssek of tenancy. — See Effluxion of time, Change of Parties, FOEFEITUKE. Assignment, 321, Holding over, 274. Double value, 284. Double rent, 287. Cestui qui vie, production of, 9. death of presumed, 8. Change of parties, 317. By A ct of Parties. How a change may take place, 317. by landlord, 317. by tenant, 321. consequences of assignment, 322. at common law, 322. by 32 Hen. Till. o. 34. See Assignment, Attornment, Covenants kunnino WITH Land. By A ct of Law. death of lessor, 330. death of lessee, 331. bankruptcy, 334. marriage of female lessor, 342. marriage of female lessee, 344. writs of execution, 348. Change of possession. — See Under-leases. Charitable uses, trustees for, may take leases, 33. Charitable purposes, buildings for, 33. Chattels, leases of, 35. Church, lease in right of. — See Corporations. Churchwardens and overseers, leases by, 20. — See Parish Officer. Coal mines. — See Mines. College Leases, rent reserved in, 109, n. (c). Commencement of term, 94. must be stated with certainty, 94. fixed by reference to contingency, 95. lease by deed, term commences from delivery, 95. no date stated, 95. where date stated, 96. old Michaelmas day, 96. "to commence from the date,'' construction of, 96. leases for lives and for years, 96. to commence infuturo, 97. lease by parol from day of entering, 97. presumed tenancy from year to year, 98. Commissive waste. — See Waste. Digitized by Microsoft® 358 INDEX. Committees of lunatics. — See Lunatios. Commons, lease of, 37. Companies' Act, 1862, Zi\. Conditions. — See Provisos. CoNFiKMATioK of leases. by issue in tail, 3. what acts amount to, 3. by wife, 1 0. by infant, 27, 31. by ecclesiastical oorporatious, 16, 17. by municipal corporations, 16. by trustee of bankrupt, 335. Consent. — See License. by tenant to landlord continuing distress beyond the five days, 216. Construction of leases, description of property, 82. Convict, leases by, 25. Co-pakcenees. — See Lessors. leases by, 13. distress by, 186. Copyhold, leases of, under Settled Estates Act, 8. leases pur autre vie, presumption as to death of cestui que vie, 8, 9. no lease for more than one year without license, 14. license to demise, 15. by special custom, 15. under Settled Estates Act, 15. not within Act relating to property of parish officers, 21. Corporeal hereditaments in expectancy, lease of, 40, 41. COERODIES, lease of, 38. Corn and growing crops, distress on, 193, 199, 216. CoRN-rent, 110. Corporations. — See Lessors. confirmation of leases by, 16, 17. successors bound by their leases, 16. leases by the crown, 16. municipal corporations, 16. cannot be made for more than thirty-one years with- out consent, 16. by ecclesiastical and eleemosynary oorporatious, 16. leases must be under seal, 16, 43. effect of lease not under seal, 16, n. {v). leases to, 32. leases to or from one member to another, 32, to ecclesiastical persons, 32. ecclesiastical leases excepted from the operation of the 12 & 13 Vict. c. 26, 18. Digitized by Microsoft® INDEX. 359 CoRPOEATlONS^apportionment of rent by ecclesiastical corporations, 18. CoBEOEEAL hereditaments, leases of, 35. CoREODiES, lease of, 38. Costs of distress, &c., 217. COUNTEKPAET of lease. by tenant for lite under Settled Estates Act, 7. County Court. — See Small Tenements Act. Covenant. — See Action. Covenants, usual covenants in leases by tenant for life under Settled Estates Act, 7. definition of, 114. must not be illegal, impossible, or prejudicial to the public, 114. liability of covenantee under such covenants, 115. dependent covenants void where lease is void, 116. independent covenants, 116. Express covenants, 116. may be in form of exception, 116. usual express covenants, 116. for payment of rent, 117. of taxes, 117. for repairs 120. to repair and to repair after notice, 120. by lessor to repair, 121. as to main walls, notice to be given by lessee of want of repair, 121. subsequent erections, 121. liability of lessee for extraordinary damage, 122. to keep in repair, 122. for unsubstantial damage, 122. sufficiency of repairs a question for the jury, 123. "habitable repair," 123. " external parts," 123. conditional upon the landlord putting in repair, 123. for good husbandry, 124. — See Cultivation. custom of the country excluded by express covenant, 124. for insurance, 124. — See Fike. not to underlet or assign, 125. not a common and usual covenant, 126. to lessee and assigns, 126. executors and administrators, 126. not to carry on certain trades, 127. not to trade with particular persons, 128. within a particular radius, 128, 129. for quiet enjoyment, 130. form of covenant, 130. Digitized by Microsoft® 360 INDEX. Covenants, Express, for interruption by person claiming under lessor, 130. general or unqualified covenant, 131. against acts of a particular person, 131. for renewal of leases, 132. run with the land, 132. creating a perpetuity invalid, 133. forfeiture of right of renewal, 133. specific performance by Court of Chancery, 133. i Geo. IV. c. 28, s. 6, 134. surrender by under-lessees unnecessary, 134. 8 & 9 Vict. 106., o. 9 Implied covenants, 135. covenants in law, 135, 136. cease with the estate of lessor, 136. run with the land, 136, 140. express will control implied, 136-138. may be implied from express words, 136. implied covenant from recital, 136. for payment of rent, 137. '' yielding and paying," 137. for repairs, 137. express will control implied, 137. liability of tenant to rebuild after fire, and to pay rent, 233. no implied covenant that house fit for habitation, 137. or that lessor will repair, 138. or that tenant may quit on breach, 138. or that he may deduct repairs from rent, 138. for cultivation, 138, 233. custom of the country, 138, 233. express will control implied, 138. for title, 139. quiet enjoyment, 139. use of words " demise," " let," or " lease," 139. use of words "give " or "grant," 140. 8 & 9 Vict. c. 106, s. 4, only affects disturbance by person having title, 140. agreement for lease in implied covenant, 140. express will control implied, 140. Covenants which run with the land, definition of, 116, 325. for payment of rent, 117. for repairs, 120, 325, 326. for further assurance, 325. not to assign without license, 325. not to carry on certain trades, 127, 325. trading with particular persons, 128. Digitized by Microsoft® INDEX. 361 Covenants which run with the land — or in a particular radius, 128. for renewal of leases, 132, 325. implied covenants, 135, 325. for quiet enjoyment, 140, 325. to maintain a sea-wall, 325. lessee to reside on the premises, 325. option to determine, 325. cultivation of the land, 325. to produce title-deeds, 325. to supply water, 325. to insure, the sum insured being laid out on the pre- mises, 326. doing suit to a mill by grinding corn there, 326. to build a new mill, 326. repair of fixtures, 326. relating to ways and profits appurtenant, 326. and provisos which are merely collateral do not run with the land, 142, 327. even where assigns are expressly named, 327. use of the word " assignees," 327. covenants which relate to movables, 328. joint covenants with tenants in common, 328. breach of negative covenants, 147, n. [x). breach of covenant against immoral or illegal act, if waived, cannot subsequently recover, 151. Crops. — See Cokn and G-eowing Crops. way-going, 293. Ckowk, leases by, 16. Cultivation. — See Covenants, Emblements. neglect to cultivate no waste, 233. sheriff not to carry off certain products of cultiva- tion, 233. nor certain other products after notice of existing covenant, 234. except after agreement to expend them on the land, 234. growing crops sold under execution liable for rent, 235. remedies for neglect to cultivate, 235. injunction, 239-241. Curtesy, leases by tenants by the, 9. distress by, 187. executors of tenant entitled to emblements, 280. CosTODT of the law — goods in, cannot be distrained, 200. nor rescued, 225. nor replevied, 226. Digitized by Microsoft® 362 INDEX. Custom. — See Copyhold, Lord ob the Manor. of the country with reapect to emblements, 292-294. D. Date, commencement of term from, 96. Dean and Chapter, leases by, 16. — See Corporations. Death of parties to a lease, 330-334. De donis, statute of, 2. Deductions operate as payment of rent /jco tanto, 163, 167. land-tax, 164. income tax, 166.- sewers' rate, 167. poor-rates, 167. other rates, 168. tithe rent-charge, 169. Deeds, demises by deed, 43, 47. Defects in leases under powers, how cured, 154, 155. Delivery of lease, term commences from, 95. Demand of possession, 274. summons in lieu of demand and entry, 280. double Talue, 284. double rent, 287. of rent, demand to be made before entry, 257. requisites of a demand, 258. when unnecessary, 258. Demesnes, cannot be demised by tenant for life under Settled Estates Act, 6. Demise. — See Lease. who may. — See Lessors. void by reason of part being void, 35, effect of word, 56-65. Denizens, leases to, 30. Dependent and independent covenants, 116. Desertion by tenant — where premises held at rack-rent, 281. justices to view premises twice, 281. if rent not paid, to put landlord in possession, 282. reviewed by judge going circuit, 282. statutes extended to tenements ou written or verbal agree- ment, 282. and to cases where no right of re-entry is reserved, 282. apply to all demises for any term, at any rent, 282. conditions of the statutes to be fulfilled, 283. no information on oath required, 283. what the justices have to determine on the view, 283. what is a desertion, 283. Digitized by Microsoft® INDEX. 363 Detebmination of lease by efBuxion of time, 246. by change of parties. — See Change op Paeties. by forfeiture. — See Fobfeitube. by surrender, 248. by merger, 252. by disclaimer, 262. by notice to quit. — See Notice to Quit. option to determine, 107. oa bankruptcy of tenant, 340. Dilapidations. — See Repaiks, Covenakts. Disability to make leases, 23-28. to accept leases, 29-32. Disclaimer, forfeiture by, 262. must in general be by writing, 262. must deny existence of relation of landlord and tenant, 263. by tenant from year to year operates as waiver of notice to quit, 262. by bringing action of ejectment against landlord, 263. by trustee in bankruptcy, 336, 337. waiver of disclaimer, 263. Distress by joint tenant or tenant in common, 13. a necessary incident to rent reserved. 111. lessor may distrain on lease of herbage. 111. sum in gross cannot be distrained for as rent, 112. definition of distress, 183. rent must be issuing out of real property, 184. must be certain, 184. Who may distrain, 184. relation of landlord and tenant must continue to exist, 184. joint- tenants, 185. coparceners, 186. tenants in common, 186. husband and wife, 187. tenant pur autre vie, 188. tenant by elegit, 188. mortgagee, 188. agents, baUiffs, receivers, 189. guardians, 190. executors and administrators, 190. sequestrators, 192. What things may le distrained, 192. general rule, 192. growing crops, hay, straw, &c., 193, 199. taken in execution, 194, 200. What may not le distrained, 196. Things absolutely privileged, 196. Digitized by Microsoft® 364 INDEX. DisTHEsa — What may not he distrained — Things annexed to the freehold, 197. delivered to a tenant to be wrought upon, &o., 198. which cannot be restored in same plight, 199. in actual use, 200. animals ferce natural, 200. in custody of law, growing crops taken in execution, 194, 200. goods of guest at an inn, 201. Things conditionally privileged, 201. beasts of the plough, 201. which improve the land, 201. instruments of husbandry, 201. of trade, 20 1. Where the distress may te made, 201. upon the premises, 201. fraudulent removals, 201, 202. fresh pursuit, 202. animals feeding on a common, 203. H7ien th( distress may he made, 204. time of day, 204. after determination of term, 204. limitation of time, 205. second distress, 206. abandonment and recontinuanoe of, 206. How a distress should he made, 207. What is a sufficient entering and seizure, 207. illegal distress, 207, 208. inventory, 208. notice of the distress and of appraisement and sale, 209. form of the notice, 209. effect of want of, or defect in notice, 209. tender of rent in arrear, 209. tender within five days ground of action for subse- quent sale, 210, 224. requisites of a good tender, 210. What is to be done with the distress, 211. impounding, 211. feeding of animals impounded, 212. user of the thing distrained, 213. where to be impounded, 213. growing crops, 215. time between notice of sale, 215. appraisement, 215. Digitized by Microsoft® INDEX. 365 DiSTBESB — What is to be done with the distress — sale, 217. costs of a distress, 217-219. what is to be done with the overplus, 217-219. for one year's rent after bankruptcy, 3i0. Tenants' retnediesfor wrongful distress, 220. effect of irregularity, 220. not applicable to unlawful distress, 220. action of trespass, 220. on the case, 220. when no rent is due, 221. when distress for more than is due, 221. for distraining twice for the same rent, 221. for excessive distress, 222. for distraining thing not the subject of dis- tress, 223. for distress after tender, 221. for driving distress out of hundred, 224. for remaining on premises an unreasonable time, 224. for selling before five days, or without notice, 210, 224. without appraisement, 224. at a low price, 224. action for not returning the surplus, 224. will not lie for mere omission, 224. rescue. — See Rbsoub. replevin. — See Replevin. Door, outer, not to be broken open in distraining, 207, 208. Double Rent, tenant holding over after notice to quit given by him, 287. to be sued for in same manner as single rent, 287. landlord may distrain or bring action, 287. tenancy may be in writing or by parol, 287. notice to quit need not be in writing, 287. weekly tenants excepted, 287. tenant who has given notice and paid double rent may quit at any time, 287. waiver by acceptance of single rent, 287. Double Value, persons holding over after demand and notice in writing, 284. recoverable by action of debt in any court of record, 284. not by distress, 285, u. [l], defendant to give special bail, 285. must be wilful, 285. not where there is a claim of title, 285. or where there is a treaty for a further term, 285. Digitized by Microsoft® 366 INDEX. Double Value — new lessee cannot sue, 286. action for after recovery of premises by eject- ment, 286. notice to quit will operate as demand, 286. insufficient notice, 286. weekly tenant not liable for, 286. nor tenant from quarter to quarter, 286. DowEK, leases by tenant in, 9. tenant in, entitled to emblements, 289. DKUNKENNB8S. — See Intoxication. Duplicate. — See Counteepabt. Duress, leases by person in state of, 26. Duration of term, 98. leases determinable upon an uncertain event void as leases for years, 98. ■will operate as leases at will or from year to year, 99. of lease by deed where no term mentioned, 100. of lease by parol where no term mentioned, 100. of lease for years, 100. as long as both parties please, 100. of lease at will, 101. option to determine, 107. E. Easements, lease of, 40, 41, 88. included in the word "appurtenances," 86. how conveyed, &c., 88. Easements in gross, lease of, 40, 88. Ecclesiastical Commissioners, 19, 20. Ecclesiastical Corporations. — See Coepobations. leases by, 1 6. leases to, 32. Educational purposes, lease of buildings for, 33. Effluxion of time, 246. determination of lease by, 246. Ejectment for non-repair, 238. — See Action, Holding Over. Election to confirm or avoid leases. — See Confirmation of Leases. by alienee of issue in tail, 3. by infant, 27, 31. by trustee of bankrupt, 335-337. by wife, 10. Elegit, distress by tenant in, 188, 361. Emblements, mortgagor in possession not entitled to, 102, 103. Where there is no contract, 288. definition of right to, 288. where they may be claimed, 288. out of what claimed, 291. right of entry to take them, 292. Digitized by Microsoft® INDEX. 367 Emblements— TOere there is a contract, 292. implied contract from custom of country, 292, 293. way-going crops, 293. common usage of the country sufficient, 294. value of tillages recoverable from landlord, 294. or from incoming tenant, 294. landlord may bring trover for carrying away com &o., 294. contracts and customs with respect to, 295. Enablino and disabling statutes, 3, 13. Entet. — See Rb-entkt. right of entry of lessee, 242, 243. Equity, agreement enforceable in, 67. Estimate. — See Valuation. Expiration of term, 246. — See Cesser of Estate, Determination of Term. landlord entitled to possession, 246. Estoppel, by one of two tenants in common, 13. in recitals. — See Recitals. leases by, 156-158. general doctrine of estoppel, 157- of landlord, 157. of tenant, 158. by under-lease, 158. by attornment, 320. Estovers, leases of, 38. Eviction. — See Quiet Enjoyment. Exceptions. — See Reservations. Executors and administrators, leases by, 22. lease by one of several, 22. lease by executor after assent to legatee's interest, 22. infant appointed executor, 23. married woman appointed executrix, 23. husband's consent necessary to act, 23. husband acting without her, 23. assent of executor to a bequest, 333. entitled to arrears of rent, 337. assessed taxes recoverable against, 331. Excessive distress, action for, 222. Execution, writs of.— See Writs op Execution. Expenses of distress. — See Costs. F. Factors, goods delivered in the way of trade not distrainable, 198. Farm, what the word includes, 80. Fair and market, lease of, 39. Fee-simple, leases by tenants in, 2. Digitized by Microsoft® 368 INDEX. Fee-simple, tenant in, not liable for waste, 228. Fee-tail, leases by tenants in, 2. tenant in, not liable for waste, 228, Felons, leases by, 25. leases to, 29. Fences, action for non-repair of, 237. waste of. — See Waste. Feum natur/b. — See Animals, Feeet, lease of, 39. Fieri facias. — See Weits of Execution. Fire, liability of tenant at common law, 232. tenant for life or years under Statute of Gloucester, 232. now no action except on special agreement, 232, except by malice or negligence, 232, under covenant to repair tenant may have to rebuild and pay rent, 233. Fishery, lease of must be by deed, 43, Fixtures — Where there is no agreement. definition of, 289. what is a fixture, 299. tenants' fixtures, 300. trade fixtures, 303. what a tenant may remove, 305. agricultural fixtures, 307. new erections, 308, 309, when to be removed, 309, Where there is an agreement. express agreement overrules general principles, 311, and customs, 312, contracts for sale of fixtures not within the Statute of Frauds, 313. memorandum of sale requires conveyance stamp, 313, reversionary interest will pass by writing not under seal, 313, not goods and chattels within Statute of Frauds, 313, nor an interest in land, 313, as between mortgagor and mortgagee, 314, valuation of fixtures, 315. as between outgoing and incoming tenant, 315, do not pass to trustee in bankruptcy, 339, schedule of fixtures, 315, Food and water to animals impounded, — See Impounding. Forcible entry no longer allowable, 275, FoEFEiTUEB for treason or felony, 25, determination of term by, 256, re-entry for, — See Re-entry. Digitized by Microsoft® INDEX. 369 FoKFBiTUKE by disclaimer. — See Disclaimer. waiver of. — See Waiver. Fbanohises, lease of, 39. fairs, 39. markets, 39. ferries, 39. toUs, 39. Fraud, plea of, to action for not granting a lease, 160. Frauds. — See STAa?UTE OE Feauds. Feaudulbnt representation. of collateral matter will not avoid the lease, 150. Fraudulent removal to avoid distress, 201, 202. Furnished apartments. — See Lodgings. Furniture, rent does not issue out of, 41. distrained for rent, tow kept, 214. Further assurance, covenant for, runs with the land, 325. G. Game, rights of hunting, shooting, and fishing may be leased, 40. exceptions and reservations of, 90. Give, no covenant implied from the word, 140. Goods and chattels. — See Furniture. may be leased, 35. fixtures not within Statute of Frauds, 313. Grange, what the word includes, 81. Grant, no covenant implied from the word, 140. leases of things in, 35. Growing crops. — See Corn, Emblements, Holding Over, Distress. Guardians oe Unions. — See Parish Oeeicers, Guardians in socage, leases by, 21. by election, leases by, 21. confirmation by infant of leases by guardian, 21. by nature, leases by, 21. may make lease at will, 21. testamentary, leases by, 22. lease for years by, whether void, 22. appointed by Lord Chancellor, leases by, 22. appointed for infant executor, 23. H. Habendum, 93. effect of the premises upon, 93, 94. effect upon the commencement of the term, 94-96. Hat.— See Corn. Hat-bote, lease of, 38. Herbage, lease of, reserving rent, 111. Hereditaments, what is included in the word, 82. Holding Over, tenant to give up possession at end of term, 274. fixtures, 274 growing crops, 274. 2a Digitized by Microsoft® 370 INDEX. Holding Ovee, damages for, 274. under-tenant holding over, tenant still liable, 274. entry by landlord, 275. ^ without breach of the peace, 276. trespass for damages and ejectment, 275. action for double value. — See Double Value. action or distress for double rent. — See Double Rent. HoBSES, distress of, 96. at livery stables, 199. House, what is included in the word, 82. HousE-BOTE, lease of, 38. Hunting, shooting, and fishing. — See Game. Husband and Wife — leasing wife's land, 9. under Settled Estates Act, 7, 10, 11. confirmatiou of lease by wife, 10. leasing wife's chattel interests, 11. leases by and to married women. — See Maekied Women. leases by, must be by deed, 43. effect of marriage of female lessor or lessee. — See Maebiaoe. Husbandbt. — See Cultivation, Covenants. I. Idiots, leases by, 23. leases to, 29. Illegal distress, remedies for, 220, 227. See Distress. Illegal covenants, 114, 115. Implied authority to distrain, 186. Implied covenants. — See Covenants. Impossible covenants, 115. Impounding of cattle under distress, 211. Incapacity to make leases, 23-28. to accept leases, 29-32. Inooepokeal hereditaments lease of, 40, 41. Incoming tenant. — See Emblements. Incumbents, leases by, 17. Indeniuke. — See Deed. Infants, leases by, 27, 28. election as to, 27. acts necessary to show election, 27. confirmation of leases by, 27. renewals of leases by, 28. leases to, 31. election as to, 31. renewal as to, 32. Injunction for waste, 239. at common law, 239. in chancery, 239. in what cases, 240, 244. Digitized by Microsoft® INDEX. 371 Inn, distress of goods at, 201. Insuranob, covenant for, 124. production of the policy, 124. money applied in re-building, 124. lessees' liability under covenant to repair, 125. breach of covenant, 125. See FiKE. Inteeesse teemini, 3. ' meaning of, 45, n. (u). Intoxication, leases by persons in state of, 24. Inventoet on a distress, 208, 209. Ibregulae distress. — See Illegal Distress. J. Joint-Tenants, distress by, 185. leases by, 12, 13. Jointuee, leases by tenants in, 9. emblements, 289. Justices, proceedings before them. for small tenements held over, 275. for desertion by tenant, 281. Ladtdat, old or new style, 159. Land, what passes under the word, 80. what words will pass the land or soil, 81. Landlord and Tenant, relation of, 2. Land-tax. — See Deductions. Leases, who may make. — See Lessoes. who may take. — See Lessees. void by reason of part being void, 35. by deed, 43, 47. by writing not under seal, 44. verbal, 44, 47. of things lying in grant, 43. must be under seal, 43. of things lying in hvery, 44. may commence infuturOy 45, 96. interesse termini, 45. for years at common law only conferred right to profits, 44, 45. distinction between leases and agreements, 56. effect of the word " demise " in creating a lease, 66. agreement for future lease operating as demise, 58. effect of the 8 & 9 Vict. c. 106. s. 3, 65, 66. void lease used as evidence of the terms of the holding, 66. specific performance of terms of void leases, 67. distinction between leases and licenses, 68. description of parcels in, 80-88. Digitized by Microsoft® 372 INDEX. Leases, for years or lives may commence from a past or future day, 96. may commence at one date in interest and another in time, 97. by parol, commencement of, 97. duration of term, 98. for two years certain, 100. tenancy at will, 101. right to have a lease granted, 2^14. under powers. — See Powers. for whole term operates as assignment, 11. Lessees, who may be, 29. lunatics, 29. outlaws, &c., 29. aliens and denizens, 30. married women, 30. infants, 31. corporations, 32. ecclesiastical persons, 32. parish officers, 33. lessee not taking possession under verbal lease, 48. liable after assignment, 321, 323, 324. implied promise by successive assignees to indemnify original lessee, 324. Lessoes, who may be, 2. tenants in fee simple, 2. in tail, 2. for life, 5. ptir autre vie, 8. after possibility of issue extinct, 9. tenants by the curtesy, 9. in dower or jointure, 9. husband leasing wife's land, 9. for years, 11. from year to year, 12. for less than years, 12. at will or on sufferance, 12. joint-tenants, tenants in common, and coparceners, 12. mortgagor and mortgagee, 13. lords of the manor and copyholders, 14. corporations, 16. lessors not giving possession on verbal lease, 48. Let, effect of word. — See Demise. License, by lord of the manor to lease. — See Copyhold. distinction between lease and license, 68. to assign, 144. when presumed, 145. only extends to one act, 146. license unreasonably held, 147. where lessor permits breach of immoral or illegal covenant, and derives gain from it, he cannot recover, 151. Digitized by Microsoft® INDEX. 373 Life, leases for — to commence from past or future date, 45, 96. determination of, 99. duration of, 99. tenant for — leases by, 5. under Settled Estates Act, 6. liability for waste, 229. Live stock, lease of, 35. LiTEBT, lease of things in, 41. LoDQiNGS. — See Webkm Tenancy. letting of, 41. rent issues out of realty, not out of furniture, 41. within Statute of Frauds, 46, u. (x). yearly tenancy not presumed, 106, 107. quarterly, monthly, or weekly tenancy presumed, 107. letting room to lodger no breach of covenant not to under- let, 126. LoBD OF THE Manoe. — See Lessors, Copyholds. rights reserved under Settled Estates Act, 8. leases 2>^r autre vie by, 8. presumption as to death of cestui que vie. Ldnatics and idiots, leases by, 24. committee of lunatic may make building leases, 24. may renew leases, 24. may make repairs or improvemdnts, 24. may make allowances for repairs, 24. other acts of committees, 24. tenant in tail, committee of, to apply to Court, 24. leases to, 29. renewals for benefit of, 29. M. Machineet and fixtures. — See Pixtuees. Manoe. — See Loed of, Copyhold. Mansion-house, cannot be demised by tenant for Ufe under Settled Estates Act, 6. Maekbt, lease of, 39. Maeeiaqe of female lessor, 342. of female lessee, 343. Maeeied women. — See Husband and Wife. leases by, 26. husband's rights to rents and profits of freehold, 26. leases to, 31. renewal and surrender of leases by, 31. Mastee and Seevant. — See Seevant. Meegee. — See Sueeender. Messuage, what is included in the word, 82. Michaelmas Day, 96, 266, 272. Midnight, rent not in arrear till, 204. Digitized by Microsoft® 374 INDEX. Mines, exceptions of, in lease, 90. Mining leases by ecclesiastical corporations, 19, 20. Mis-DESOEIPTION of property, effect of in construction of leases, 82. Month, meaning of — six months' notice to quit, 268. Monthly tenancies. — See Lodgings, Wbeklt Tenancies. " MoEE OH LESS," how oonstrued, 86. Mortgagor and mortgagee — leases by. — See also Lessobs. leases by mortgagor after mortgage, 13. by estoppel between parties, 13. should join in lease, 14. notice from mortgagee, 14. to whom rents to be paid until notice, 14. mortgagor not tenant to mortgagee by occupation, 50. mortgagor not tenant at will except by express agree- ment, 102, 103. claim by mortgagee for rent does not raise presumption of authority of lessor, 164. distress by mortgagee, 188. injunction against mortgagor or mortgagee, 241. tenant of mortgagor after the mortgage must attorn to mortgagee to become tenant to him, 279. right to fixtures as between mortgagor and mortgagee, 314. mortgage of property subsequent to lease operates as assignment of reversion, 317, 319. attornment to mortgagee, 318, 319. notice by mortgagee to pay rent operates as attornment, 319. right to fixtures as between, 315. Mortmain Acts, 33. Municipal corporations. — See Corporations. consent of Lords Commissioners of Treasury to leases by, 16. building leases granted by, 16. N. New or old style, 96, 159, 266, 272. Non-repair, remedies for. — See Action, Ee-bntrt, Waste. Noon, notice to quit at noon on right day bad, 265, n. (f). Notice, by mortgagee to tenant of mortgagor, 14. operates as an attornment, 319. by lessee to landlord of state of repair, 121. of distress and of appraisement and sale, 209. by tenant of intention to remove agricultural fixtures, 309. to tenant holding over of intention to recover possession, 276. for double value, 284. Notice to quit — two years' notice inconsistent with yearly tenancy, 52. usual notice in case of presumed yearly tenancy, 53. at end of term not necessary in presumed yearly tenancy, 63. Digitized by Microsoft® INDEX. 375 Notice to quit — not necessary in case of morgtagor in possession, 102, 103, 270. landlord cannot distrain after, 185. disclaimer operates as waiver of, 263, 273. operates as demand of possession in case of tenant holding over, 284. claim for double rent after notice to quit by tenant, 287. 1. As to form of, 264. notice in writing, 264. what is a good notice, 264. what is a bad notice, 265. must not be ambiguous or optional, 265. to quit at expiration of term, 265, 266. interpretation of notice to quit on Michaelmas Day, c&c, 266. must extend to all the premises, 266. joint-tenant, notice to quit all his part or share, 266. notice not stating to whom possession to be given, 266. need state the day of quitting, 266. at expiration of current year, &c., 267. notice by agent, 267. must be delivered to the tenant as tenant, 267. waiver of objection to notice, 267. how proved, 268. 2. When to le given. half a year's notice, 268. special agreement, 268. six lunar months, 268. tenancy for two or three years at least, 268. lease determinable on certain event, 269. lodgings, &c., notice corresponding to mode of let- ting, 269. but demand necessary, 270. reasonable notice in case of weekly tenancy, 269. no notice in case of tenancy at will, 269. not in case of stranger, 270. or mortgagor in possession, 270, 102, 103. tenants of mortgagor before and after the mort- gage, 270. plaintiff claiming by title paramount, 270. disclaimer operates as waiver, 270. in time if delivered on day at place of business, 272. 3. By whom and to whom given. by landlord to immediate tenant, 270. by tenant to under-tenant, 270. by tenant to immediate landlord, 271. or immediate reversioner, 271. by agent or receiver, 271. by one executor, 271. by joint-tenant, 271. by tenant in common, 271 Digitized by Microsoft® 376 INDEX. Notice to quit — 4. How sirvcd, at the dwelling-house, 272. on tenant, or wife, or servant, 272. may be sent by post, 272. sent to place of business on the last day, 272. 5. Waiver of notice. parties may agree to waive, 272. tenant holding over after notice, landlord cannot waive and distrain, 273. presumed from receipt of rent 273. not from demand of rent, 273. second notice a waiver of first, 273. tenant cannot treat mere indulgence asawaiver,273 . disclaimanoe operates as waiver, 262, 273. 0. Occupation evidence of tenancy, 50. on terms of void lease, 51. Ofpiob found abolished, 25. OiTiOES, lease of, 39. Official trustee. — See Bahkeuptct. Old or new style, 96, 159, 266, 272. Opeeative words — See Habendum. Option to determine, 107. Outlaws, leases by, 25. leases to, 29. OuTEE-DOOE not to be broken open to make distress, 207, 208. Outgoing and incoming tenants — See Emblements, Fixtueeb. Overplus of distress, 217, 219. action for not returning, 224. OvEESEEES of the poor, leases by, 20. leases to, 34. P. Parcels demised, 80. what passes under certain words, 80-88. Paeish officers, leases by, 20. leases to, 33. Paeliamentaet taxes. — See Deductions. Paeochial taxes. — See Deductions. Paesons, leases by. — See Ecclesiastical Corporations. Paet of land. — See Assignment of Paet. Parties, change of, 317. Pastuee, what passes under the word, 81. Pawnbeokee, goods in pledge with, cannot be distrained, 198. Payment of rent. — See Rent. evidence of yearly tenancy, 48, 61. only presumptive, 49. Digitized by Microsoft® INDEX. 377 Payment of rent, promise of payment, 49. payment must have reference to a year, 51, 107. though payable quarterly or weekly, 107. tenancy presumed to be on terms of lease, 51. commencement of the term in a presumed yearly tenancy, 98. on tenant holding over, 2i6. for lodgings. — See Lodgings. express covenant for, 117. claim by mortgagee for rent does not raise pre- sumption of authority of lessor, 164. apportionment of. — See Appoetionment. Time of Payment, 159. time of year, 160. payable in advance, 161. time of day, 161. time for demand, 161. payment before due, 162. Mode of Payment, 162. upon the land, 162. by post, 162. demand for rent ranks higher than specialty debt, 163. receipts for rent, stamp, 163. Deductions. — See Deductions. operate as payment of rent pro tanto, 163. Pensions, leases of, 40. Permissive waste. — See Waste. Peesonal representatives. — See Exeoutoes and Administrators. Poor-rates. — See Dbddotions. Possession or reversion, leases in under powers, 152. Possession, right to, by tenant. — See Quiet Enjoyment. right to a lease, 244. where covenant to grant a lease, 244. where money expended on faith of agreement, 244. right to, by landlord on determination of lease, 274. Post, payment of rent by, 162. notice to quit sent by, 272. Pound. — See Impounding, Distress. Powers of re-entry. — See Ee-entry. Powers, leases under, 151. construction of powers, 151. court win support an appointment under a power, 151. doing less or more than the power gives, 152. omission to take notice of a power, 152. previous cha,rge on estate, 152. possession or reversion, 152. covenants inserted in lease under a power, 152. " usual covenants " a question for the jury, 152. Digitized by Microsoft® 378 INDEX. PowEBS, confirmation of invalid leases under powers by acceptance of rent, 153, 156. execution of leases under powers, 153. consent, 153. precedent act to be done, 153. defects in lease, bow cured, 15i, 155. invalid lease treated as contract in equity, 154. Premises, meaning of the word, 82. — See Pahoels. Presumed yearly tenancy. — See Payment of Rent, Oocdpation, Yearly tenancy. Prior distress. — See Second Distress. Production of cesui qui vie, 9. Progressive duty abolished^ 71. Provisos and conditions, 141. effect of, 141. definition of, 141, intention of the parties, 141. covenant and condition running with the land, 142. not to assign or underlet, 142. — See Covenants. breach of condition not to assign, 143. license, 144. — See License. Property-tax. — See Deductions. Q. Quarterly tenancies. — See Lodgings, Weekly Tenancy. Quia Emptores, Statute of, 2. Quiet enjoyment, covenants for, 130, 139. — See Covenants. right to possession and quiet enjoyment, 242. agreement to let an agreement to give posses- sion, 248. remedies for disturbance, 243. damages for breach of covenant, 243. injunction for breach, 244. Quitting possession. — See Holding Over. B. Kates. — See Taxes, Covenants, Deductions. Eeal or personal covenants, 116, 327. Receipt of rent. — See Acceptance. Receivers, distress by, 189. Recitals in a lease, 53. estoppel by, 53. what is necessary to create an estoppel, 56. estoppel confined to party having knowledge, 56. may amount to implied covenant, 136, 137. Reddendum, 108. — See Rent, Payment of Rent. Re-entry, condition of, 7. in leases by tenant for life under Settled Estates Act, 7. for forfeiture after license, 146, 146. Digitized by Microsoft® INDEX. 379 Re-entbt, license as to part, or as to one o£ several lessees, 146, 147. powers of re-entry, 147. form of power, 147. re-entry for breach of a negative covenant, 147, n. (x). entry for a mere omission, 149. construed according to intention of the parties, 1 48. most strictly against the covenantor, 149. election as to entry, and treating lease as void, 149. — See Void, Voidable Leases. entry for breach of covenant to repair, 238. re-entry for forfeiture, 256. grantees of reversion and their assigns, 257. lessor must do act showing intention to enter for a for- feiture, 257. onus of proof of forfeiture, 257. for non-payment of rent, 257. landlord must make a demand for rent, 257. requisites of the demand, 258. no demand necessary in certain cases, 258. waiver of forfeiture, 259. — See Waiver. proviso for, on bankruptcy of tenant, 340. Religious purposes, leases of building for, 33. Kemaindbbman. — See Reversionek. Bound by permitting tenant to lay out money, 6. Removal of fixtures. — See Fixtdrbs. of goods to avoid distress. — See Fbauddlent Removal, Distress. Renewal of Leases by municipal corporations, 16. by ecclesiastical corporations, 18. covenants for, 132-135. run with the land, 132. valid without surrender of underleases, 134. Rent.— See Payment 01- Rent, Acceptance of Rent. acceptance of, by issue in tail, 3. — See CoNriRMATlON of Leases. acceptance by wife. — See Confirmation of Leases, Husband and Wife. acceptance by remainderman creates yearly tenancy, 106, 107 reddendum in a lease, 108. kinds of rent, rent-services, rent-seek, rent-charge, 108. definition of rent, 108. out of what rent issues, 108. nature of rent, 109. must be certain, 109. need not be of money, 108, 109. reservation of corn as rent, 110. must not be part of the thing demised. 111. when bad as rent, may be good as a contract, 111-113. reserved on future interest, 111. reserved on lease of herbage, 111. Digitized by Microsoft® 380 INDEX. Rent, crown may reserve rent on incorporeal hereditament, 111. reserved out of two things good as to one, 112. must be the consideration for the lease, 112. where a mere sum in gross, 112, 113. where there is no demise, but an occupation, 113. runs with the reversion, 113. should not be reserved to a third party, 113. express covenant for payment of, 117. demand for rent ranks higher than specialty debt, 163. charge, 108. service, 108. seek, 108. and annuities, lease of, 40. Ebpaibs. — See CoVENAHTS, Waste, Fibe. notice to landlord of state of repair, 121. action for non-repair, 236. of fences, 237. re-entry for non-repair, 238. ejectment for non-repair, 238. specific performance of covenant to repair, 238. injunction, 239. liability of tenant in case of fire under covenant to repair, 233. Replevin of goods wrongfully taken under distress, 225. time allowed for replevying, 226. goods under an execution, 226. action for, cannot be joined with other cause, 226. what is recoverable by action of, 226, 227, no second action for same distress, 226. registrar of County Court to re-deliver goods, 227. jurisdiction of superior and County Court, 227. Rescue, definition of, 225. before impounding, 225. after abandonment, 225. preventing the wrongful user of a distress, 225. action by person aggrieved by rescue or pound breach, 225 . Reservations, exceptions and reservations out of parcels, 89. requisites of a good exception, 90. what is excepted, 92. exception of wooi extends to soil, 92. cannot be made to a stranger to the estate, 92. exception may amount to covenant, 116. Restkaint of trade, covenants in. — See Covenants. Reversion, Assignee of — may sue and be sued on covenants, 322, 323. distress incident to reversion, 185. assignment of. — See Assignment. leases in under powers, 152. Eeversioneb, — See Tenants in Tail. how bound by leases of tenant in tail, 3-5. Digitized by Microsoft® INDEX. 381 Reveesionee, confirmation of leases by tenants for life by, 5, 6. Right of entry, 45 n. («). Eon with the land. — See Covenants. Sale under distress. — See Distbbss. Schedule of Stamp Act, 77. — See Stamps. of fixtures, 315. — See Fixtuees. SoiENTiPio purposes, lease of buildings for, 33. Second distress, 206. notice to" quit, 273. Seizure of goods under distress, 207. Sequestratoes, distress by, 192. Servant, occupation by, does not create tenancy, 50. Service of notice to quit. — See Notice to Quit. Settled Estates Act, 19 & 20 Vict. c. 120, i, 6. leases under, 6. execution of lease under evidence of counterpart, 7. estates charged on encumbered, possession in, 8. copyholds under, 8. Set-off, of deductions from rent, 163. Sewers' Rates. — See Deductions. Sheep, distress of, 196, 201. — See Animals. Sheeipp. — See "Weits oe Execution. overplus of distress paid into hands of, 217, 219. Shooting, lease of right of, must be by deed, 43. Small Tenements Acts — TAe 1