mm iii|;if,;ji;ii;i'!i«ifyfispii!!i iSlsitiiiasilii iliiv rTa?;?^;^^. fp ^^t^"^^^^^^ Kj^Sff r^m^-^^^&^\llA m^S ^^m '# MjK, 'iW^^^^ -^MiPK^ 1 ^^^S. 'J^^l i^^^JJ ^f9^^^^^^ fi ^ ^^y ^^^^^^^ KF 590.T24'l852"™'''"'"-""'"'' *llSr.,?j:,*!;« Af!?e'-ican law of landio ^orttfU Ham ^rl|oal Htbrarg The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018801237 THEATISE THE AMERICAN LAW LANDLORD AND TENANT EMBEACINO THE STATUTORY PROYISIONS AND JUDICIAL DECISIONS THE SEVERAL UNITED STATE IN EEE'EEENCE THEBBTO A SELECTIOJT ENTS. SECOwp EDITION, REVISED AND ENLAKGED. By JOHN N. TAYLOR, COUNSELLOE AT LAW. BOSTON: LITTLE, BEOWN AND COMPANY. 1852. Entered according to Act of Congress, in the year 1852, By John N. Tatloe, In the Clerk's Office of the District Court of the United States, for the Southern Distiict of Kew York. KIVEKSIDE, CAMBEIDGB: PEIMTED ET H. O. HOTTGHTOU AND COMPANY. THE HONORABLE SAMUEL NELSON, ONE OF THE jnSTICE3 OP THE SUPREME COTJET OP THE UNITED STATES, THIS WORK, ENRICHED IVITH Ills OPINIONS, AND .HONORED BT HIS APPROBATION, ' IS MOST KESPECTPULLT INSCRIBED. PREFACE The following attempt, to reduce the Law of Land- lord and Tenant to a more than ordinarily concise and systematic form, will, it is hoped, meet with the indul- gence of the profession for whose use it is principally designed. The learned and voluminous works of Wood- fall, Chambers, Comyn, and Piatt, are, to a considerable extent, useless in this country ; not from any want of accuracy or perspicuity, but from their failing to exhibit a correct view of this branch' "of law as now modified by our republican institutions, and reformed by the com- mercial spirit of our age. A full exposition of the law on this side of the Atlantic, on a subject of such daily and hourly interest, has, therefore, become a mat- ter of imp'ortance, not only to the profession, but also to the entire community. This work does not aspire to the merit of having achieved so desirable an object, but is merely intended to present a plain, ^practical summary of the doctrines of the common law, — including' the English cases, so far as they are applicable in the United States, — with their statutory -alterations and modifications, and the leading decisions in those States where legal science has been most cultivated and improved. VI PEEFACB. Generally, and except in the statement of leading principles, or where it has been found necessary to alter the phraseology, for the purpose of rendering the sub- ject more intelligible, the endeavor has been to con- dense, and yet present the law in the words of the judg^ ment of the court ; on the supposition, that such a statement of the rule would be most satisfactory to those who have not the means or the leisure for con- sulting the numerous authorities referred to. A variety of topics have been introduced, which are not usually discussed in treatises on this subject, but are still intimately connected with it. Beginning with the several modes of creating a tenancy, its varieties, commencement, and termination, the work proceeds to treat of the formal parts of the instrument of demise, its execution, and the capacity of the various contract- ing parties thereto ; explains the rights and liabilities generally incident to the relation of landlord and te- nant, embracing the subjects of division fences and party walls, mutual liabilities for negligence, of nui- sances, easements, with the rights of way, commons, fisheries, watercourses, removal of buildings,* and sup- port from neighboring soil and buildings. It then examines the special covenants and conditions which the parties usually employ, for the purpose of limiting and defining their respective rights and duties; the consequences of an assignment of the lease, as well as of the reversion ; the several modes of dissolving a tenancy, and the consequences of a dissolution, includ- ing the penalty of holding over, the right to emble- ments, and the removal of fixtures ; together with the PKEFACE. VI 1 legal remedies ope a to either party, and a selection of the most approved precedents of leases and forms of proceeding. If, in the execution of the design, some topics have been omitted, or others not so fully discussed as, in the opinion of some, the subject would seem to warrant, it is to be borne in mind that the admission of every thing connected incidentally, as well as directly, with the relation of landlord and tenant, would have in- creased the work to an extent inconsistent with the original object. That object was to furnish a compendium, which should not only be useful to the profession in the ordi- nary routine of business, but of easy reference to every member of the two great classes of society whose rights and duties are the subject of inquiry. The Author will feel satisfied, if, in this attempt to abridge the labors of an arduous profession, he shall, in any toler- able degree, have succeeded in exhibiting so accurate and concise an exposition of his subject as will be useful to practical men, whether in or out of the pro- fession. Bkookltn, New York, December, 1852. TABLE OF CONTENTS Page Introduction ...... 1 ' CHAPTER I. The Creation of a Tenancy . . . . .9 Sec. 1. A tenancy by implication . . . .11 " 2. " by express agreement . . .15 " 3. Of an agreement for a lease . . . 21 CHAPTER II. The different species of Tenancy. Sec. 1. Leases for life . . . . . ,31 " 2. " for years ..... 32 " 3. " at will . . . . . .35 " 4. Tenancy at sufferance .... 38 " 5. Demise of lodgings . . . . .40 CHAPTER III. The Duration of a Tenancy. Sec. 1. The commencement of a lease ... 42 " 2. The termination of a lease . . . .45 CHAPTER iV. The Contracting Parties . ■ ■ ■ .52 Sec. 1. Leases by infants ..... 57 " 2. " " persons of unsound mind . . .59 " 3. " " and to married women ... 62 CONTENTS. Sec. 4. Leases by tenants for years or for life " 5. " " joint tenants, and tenants in common " 6. " " mortgagor and mortgagee " 7. " " corporations " 8. " " trustees . . . . " 9. " " executors and administrators " 10. •' " guardians "11. " " committees and receivers " 12. " " agents . . . . " 13. " " aliens .... Page 66 69 71 75 78 80 81 82 82 86 CHAPTER V. The Instrument of Demise. Sec. 1. The formal parts of a lease " 2. The execution of a lease 88 101 CHAPTER VI. Rights and Liabilities generally incident to a Tenancy Sec. 1. On the part of the landlord '■ 2. " " " of the tenant . " 3. Division fences and party walls " 4. Liability for negligence " 5. Of nuisances " 6. Of easements (a). A right of way (S). Commons (c). Fisheries . (d). Watercourses (e). Removal of buildings (/). Support from neighboring soil and buildingi {g). how created and extinguished CHAPTER Vn. Of Covenants and Conditions. Sec. 1. Of covenants " 2. Of conditions . CHAPTER VIIL Covenants on the part of the Lessor. Sec. 1. The covenant for quiet enjoyment 108 HO. 114 119 126 133 134 138 140 142 147 148 151 157 173 193 CONTENTS. X Sec. 2. The covenant against incumbrances 3. 4. 5. 6. for further assurance to repair to renew the lease to pay taxes and assessments to repair 219 to pay rent . 239 to pay taxes and assessments 259 to insure . 262 not to assign 263 to reside on the premises . 271 to build after a certain pattern 271 against carrying on trades . 272 for particular modes of cultivation 275 to re-deliver fixtures . 277 CHAPTER IX. Covenants on the part of the Lessor. Sec 1. " 2 « 3 " 4, " 5 " 6, " 7 " 8 " 9 " 10. CHAPTER X. The transfer of a Lease and its Consequences. Sec. 1. Assignments in fact and in law " 2. The rights and duties of an assignee CHAPTER XI. The Modes of determining a Tenancy. Sec. 1. By lapse of time .... " 2. " notice to quit " 3. " forfeiture .... " 4. " merger .... " 5. " surrender .... " 6. Contingent modes (a). Premises taken for public use (b). Destruction of premiges (c). Turning premises into a house of ill-fame (. Welch 305 Elsey V. Metcalfe 167 Elwes V. Mawe 548 Emaus v. TurnbuU ' 355 Emerson v. Murray 164 V. Wiley 217 Empson v. Soden 548 Engleton v. Gutteridge 578 Enys V. Donnithorne 70 Epps V. Cole 635 Erskine v. Townsend 121 Ervin v. Olmstead 778 Etheridge v. Osborn 314 Etherton v. Popplewell 772 Evertson v. Sawyer 80 Scetioii Evertson v. Sutton 719 Evans v. Brander 740 V. Elliot 120 V. Evans 200 u. Rees 161 V. Vaughan 307 Ewing V. Burnet 164 Exall V. Partridge 182 Executors of "Van Rensselaer v. Ex- ecutors of Hunter 670 Ex parte Wilson 176 P. Pabyan v. Rewenston 154 Pailey D. Craig 383,698 Failing v. Schenck 152 Fairies v. Walker 546 Fairman v. Pluck 373 Pairtitle v. Gilbert 88 Parley v. Thompson 446 Parmer dem. Earl v. Ryers 509 Parrance v. Elkington 529 Farrant v. Lovel 693 V. Olmins 673 V. Thompson 553 Farrer v. Hutchinson 628 Farrington v. Bailey 598 V. Morgan 721 Faulder v. Silk 96 Faulkner v. Anderson 782 Featherstonhaugh v. Bradshaw 635 Feltham v. Cartright 531 Fenner v. Duplock 707 V. Hepburn 39, 45 Fenton v. Halloway 100, 464 V. Logan 589 Penwick v. Floyd's Lessees 704 Ferguson u, Moore 579 Pern dem. Matthews v. Smart 488 Ferrers v. Ferrers 660 Field V. Mitchell 730 V. Scheffelin 135 Fildes V. Hooker 48 Fisher v. Alger 731 V. Ameers 438 V. Bell 744 Pindlay v. Smith 353 Fitchburgh Cot. Man. Co. v. Melvin 677 Fitzherbert v. Shaw 533 Fleckner v. United States Bank 127 Fleet V. Hegeman 223 Fletcher v. Peck ' 12 Flight V. Bentley 455 V. Thomas 204 Flint V. Brandon 164 Flood V- Finlay 47 Foley V. Addenbrooke 550 Folkingham v. Croft 44 Folts V. Huntley 72 Foote V. Colvin 774 Forty V. Inter 756 xxu INDEX TO CASES CITED. Section Section Fost V. Berkley 151 Gates V. Green 375 Foster v. Cookson 770 Gayette v. Bethune 216 V. Hale 32 Geechie v. Monk 23 V. Hall 32 Geening v. Warner 325 V. Hilton 603 Geery v. Reason 247 V. Mapes 313 Gentry v. Barnett 744 V. Merchant 68,136 Gerard v. Basse 117 u. Pierson 314 Gibbs V. Chase 62 V. Shaw 129 Gibson V. Courthorpe 642 Towke V. Kempis 704 V. Farley 124 Fowler v. Butt 372 V. Kirk 636 V. ColTin 782 V. Smith 691 V. Shearer 104 V. Wells 689 Fox V. Swan 286 Gifford V. Young 462 ,668 Foxcroft V. Linton 32 Gilbert v. Bulkley 263 Francis v. Wyatt 575 V. Moody 583 Franciscus v. Reigart 580 Giles V. Comstock 310 Franklin v. Tuton 415 V. Hooper 247 Frankum v. Falmouth 224 Gilhooley v. Washington 316 Frasher v. Everhart 166 Gill V. Gavin 575 Frear v. Hardcnberg 30 Gillespie v. Thomas 385 Freeman v. Jury 642 Gillett V. Newman 251 V. Stacy 624 Gillott V. Rogers 640 Frisby v. Thayer 577 Gilman v. Elton 587 Frith J). Barker 540 Gimbert v. Pelah 771 Frontin?). Small 140 Givardy v. Richardson 521 Frost V. Bering 35 Giraud's Lessee v. Hughes 704 Fry V, Jones 563 Gisburn v. Hunt 588 Fryer v. Coombs 442 Glassington v. Rawlins 78 Fryett v. Jeffreys 497 Glaus V. Hart 573 Fuller V. Hubbard 50 Gleason v. Carey 208 Fulton V. Stuart 16 p. Clark 653 Funk V. Voneida 320 Glein V. Rice 629 Fun ival v. Crew 332 Goddard v. Keate 659 Good V. Hill 157 G. Goodman v. Ayling 755 Goodright v. Cator 298 Gabell V. Shevell 395 u. Davis 286 Gage V. Smith 352 V. Richardson 70, 77 Gale V. Nixon 661 dem. Charter v. Cord- V. Eeed ' 255 went 485 Galloway v. Ogle 705 dem. Nichols v. Mark 164 Gamon v. "Vernon 616 Waters v. Davids 488 Gano V. Hart 573 Goodsell V. Myers 93 Gardiner v. Corson 265 Goodtitle v. Morse 91 V. Beering 345 V. North 710 Gardner v. Dutch 749 V. Way 37 V, Humphreys. 751 dem. King v. Woodward 479 V. Ketteltris 305 Goodwin v. Lynn 276 V. Village of Newburgh 224 Gordon v, Buchanan 138 Garfield v. Williams 322 V. Harper 780 Garret v. Hughlet 558 V. Haywood 104 'v. McKie 225 V. Smart 337 Garrett v. Scouten 294 V. Trevelyan 46 V. Earl of Beesborough 47 Gore V. Gofton 144 Garrison v. Sandford 320 Gorges v. Stanfield 350 Garritt v. Sharp 240 Goring V. Warner 408 Garth v. Cotton 694 Gorton v. Falkner 596 Garvey v. Colcock 127 Gould V. Johnson 653 Garwold v. Moorhouse 410 V. Thompson 645 Gates V. Blanco 209 V. Warner 743 V. Caldwell 253 Gonrlay v. Duke of Somerset 337 INDEX TO CASES CITED. XXlll Section Gove V. Gibson 100 Hallfitt V. "Wylie Halffday u. Marshall • Grace v. Shiveley 576 Graham v. Anderson 378, 473 Hambly v. Trott V. Peat 781 Hamertou v. Stead V. Moore 705 Hamilton v. Atherton V. "Whitchelo 516 V. Cutts Gram v. Seaton H7 V. Elliott Grannis t>. Clark 252 V. Marsdeu Grant v. Chase 217,257 V. Reedy V. Gill 641 V. Wilson Gravenor v. Woodhouse 440 Hammerton v. Stead Graves v. Weld 534 Hammitt v. Lawrence Gray v. Blanchard 277 Hammond v. Dodd V. Nesbet 791 0. Toulmin Green v. Austin 604 Hampton v. Hodges V. Cole 348 Hanchet v. Whitney V. Bales 368 Hancock v. Caffyu V. Horn 245 Hands v. Slaney V. James 88 Hannah v. Dansby V. Scovill 635 Hanover v. Clark Greenley v. Wilcocks 305, 666 Hanson v. Gardiner Greenslade v. Halliday 209 Harding v. Crathorne Greenvault v. Davis 308 V. Kretsenger Greenway v. Adams 403 Hardy v. Berne Gregory v. Badcock 641 Hare v. Cator V. Doidge 440 u. Celey V. Paul 107 V. Fury Grey v. Cuthbertson 262 V. Graves Gridlestone v. McGowan 700 V. Savill Grier v. Cowan 561 Harker v. Birbeck Griflan v. ITairbrother 445 Harley v. King V. Stanhope 220, 280 Harlow v. Thomas Griffith V. Broome 668 Hamett v. Yielding V. Harrison 319 Harnham v. Ross V. Hodges 516 Harper v. Burgh Griffith's Case 59 V. Charlesworth Grimraan v. Legge 509 V. Pisher Grist V. Hodges 311 V. Hampton Groton v. Eoxbury 474 Harris v. Boker iGrout V. Townsend 85 V. Bryant Gulliver v. Burr 475 V. Gosling t>. Jones H. V. Kemble V. Mantle Hackett v. Glover 253 u. Shipway Haggard v. Raymond 600 • V. Smith Haines v. Backus 793 V. Riding V. Morris 259 Hanison v. Barnsby Hale V. Thomas 694 V. Barry Hall V. Ball 533 V. Jackson V. Ballentine 525 V. Lord V. Benner 86 V. Mcintosh V. Burgess 515 V. Parker V. Dean 320 V. Sampson V. Powler 456 V. Stevens V. Hills 168 V. Warden V. Powell 163 Hart V. Chalker V. Swift , 203 V. Pitzgerald V. Tuttle 749 V. Tobias Hallen v. Eunder 552 V. Windsor Hallenbeck v. Dewitt 98 V. Withers Hallett V. Mountstephen 745 Hartley v. Halliwell Bection 38,41 427 689 19,57 457 309 280, 705 698 666 57 468 307 682 694 475 738 96 785 251 695 514 276 673 620 644 711 372 681 16 449 320 333 270 252 781 441 139 639 339 357 358 47 674 565 749 236 568 573 137 372 739 432 669 703 742 216 749 763 '380 117 196 XXIV INDEX TO CASES CITED. Section Section Hartley v. Moxham ^778 Hirst V. Horn 526 Hartness v. Mcintosh "424 Hobson V. Middleton 320 V. Thompson 95, 653 Hodges V. Horsfall 46 Hartshome v. Kiernau 558 V. Smith 627 V. Watson 499 Hodgson V. Gascoine 600 Harvey v. Pocock 614, 735 Hodgton V. East India Company 306 Haskett v. Flint ^58 Hogan V. Johnson Haslehurst v. Kenriek 412 V. Sharp 195 Hassell v. Gothwaite 294 Holbrook v. TirreU 511 V. Long 251 Holden v. Taylor 246 Hastings v. Crampleton 353 Holder v. Chambury 656 V. Wilson 458 Holford V. Bennett 253 Hatch V. Dwight 224 V. Hatch 109 V. Hatch 168 HoUaday v. Marsh 184 Hatchett v. Baddeley 105 Holland v. Bouldin 281 V. Glover 252 Hollis V. Whiting 32 Hawk V. Senseman 698 Holmes v. Blogg 94 Hawkins v. Holmes 35 V. Buckley 242 Hawley v. Clowes 694 V. Goring 162 V. Cramer 658 V. Mentz 435 u. Stanley 343 V. Tremper 545 V. Wolverton 350 V. Wilson 766 Hay V. Cohoes Co. 202 Holt V. Johnson 582 V. Moorhouse 785 Holtzsapffell v. Baker 375 Hay's Executor v. Bowman 230 Hooker v. Cummings 221 Hayden v. Stoughtou 276 Hopkins v. Buck 788 Haydon v. Haydon 435 V. De Robeck 596 Hays V. Bickerstaif 308 V. Hopkins 739 V. liusley 745 V. Young 276 V. Eichardson 237 Hopper, matter of 594 Hayne v. Maltby 629 Hore V. Kennett 458 Hayward v. Has well 756 Hornbeck v. Westbrook 155 Hazard v, Eobinson 228 Hornby v. Houlditch 438 Hearnside v. Warren 19 Horner v. Ashford 144 Hedge v. Drew 168 V. Graves 417 Hefford v. Alger 594 Hornidge v. Wilson 442 ,451 Hegan v. Johnson 562 Horsely v. Rush 137 Helier v. Casbert 640 Horsfall v. Mather 343 Heming v. Ernuss 734 V. Testar 362 Henchett v. Kimpson 598 Horsford v. Webster 590 Henwood v. Cheeseman 650' Hoskins v. Knight 600 Herlakenden's Case 778 V. Rhodes 24 Hermance v. Vernoy 545 Hotham v. East India Company 276 Hermitage v. Tompkins 88 Houser v. Reynolds 94 Hem V. Benbow 344 Howard v. Robinson 224 Hervey's Case 519 V. Ramsay 583 Hess V. Eox 427 V. Shaw 637 Hicks V. Downing 16, 109 Howe V. How 664 Higgins V. Becroft 475 V. Webster 626 V. Woodward 696 Howell V. McCoy 224 Hill V. Barclay 47, 496 V. Richards 305 V. Carr 246 Howes V. Brushfield 306 V. Miller 164 Howland v. Coffin 441 V. Saunders 90 Howlet V. Strickland 630 V. Stocking 721 Hoyle V. Stow 95 Hillary v. Gay 524 Hubbard v. Norton 320 Hilman v. Hale 88 Huddle V. Worthington 250 Himley v. Wyatt 587 Huddy V. Fisher 255 Hindle v- Blades 740 Huds'on V. Jones ^ 93 ,176 V. PoUett 420 Huggerford v. Ford 763 Hinsdale v. White 725 Hughes V. Heiser 206 Hinton v. Blain 566 V. Hughes 590 INDEX TO CASES CITED. XXV Section Section Hughes V. Eobotham 507 Jackson v. Carpenter 94 Hull V. Fuller 164 V. Cater 693 Humble v. Oliver 75,617 V. Clark 164 Hungerford v. Clay 118 V. Clun 143 Hunt V. Amldon 261 V. Collins 113 V. Bains 760 V. Combs ^ 711 1 408 V. Comstock 14 u. Corlis V. Cope 378 V. Crafts 289 V. Round 745 V. Cryster 298 V. Warwick 143 V. Cunder 707 Hunter v. Leconte 392 V. Curtis 705 Hurd I'. Curtis 242 V. Davis 108 V. Fletcher 306 u. Deyo 468 Hurst V. Eodney 451 V. Dobbin 706 Hustons V. Winans 251 V. Farmer 530 Hutcheson v. McNutt 287 V. French 467 Eutchins v. Chambers 730 V. Fuller 120 Hutton V. Warren 420 V. Gardner 512 Hyde v. Dean 669 V. Gilchrist 104 V. Hill 397 V. Groat 404 V. Price 106 u. Hakes 716 V. Skinner 262 V. Harper 522 Hyatt V. Wood 779 V. Harrison 108,175 V. Harsen 705 I. V. Hartwell 120 u, Hayner 98 Ibbs V. Eichardson 524 V. Hill 167 Iddings V. Nagle 638 V. HoUoway 102 Iggulden V. May 248 V. Hopkins 474 Ilsley V. Stubbs 739 V. Hull 502 IngersoU v. Jackson 320 V. Keisselbrach 41 Ingraham v. Hammond 758 V. King 97 Inman v. Stamp 30 V. Kingsley 472 Innes v. Colquhon 756 V. Kipp 297 Inzey v. Mauray 758 V. Loomis 711 Isham V. Morgan 162 V. Mancius 488 V. Morrice 84 V. Marsh 164 Israel v. Simmons 651 V. McClellan 277 Istred V. Stonely 470 V. McConnell 101 Ires V. Ives 530 V. McLeod 64 V. Van Epps 374 V. Miller 468 Izan V. Gorton 372 V. Moncrief 39,60 V. Murray 87 J. V. Myers 39 V. Newton 707 Jacks V. Smith 561 V. Parkhurst 64 Jackson v. Aldrich 55 V. Pesked 173 V. Allen 204, 277 V. Phillips 170 V. Andrew 450 V. Phipps 167 V. Andrew 350 V. Pierce 32 V. Ayres 88 *. Pratt 129 V. Baker 481 V. Randall 7H V. Bodle 167 V. Richards 167 V. Bradt 54,60 V. Roberts 502 V. Brinkerhoff 90 V. Rogers 60 V. Brownell 24 V. Roland 25,89 V. Brownson 345 V. Rowan 57 V. Bryan 54 V. Rowland 169 V. Buel 784 V. Salmon 55 V. Burchin 94 V. Sample 471 V. Cady 170 V. Schoonmaker 147 V. Campbell 128 V. Schutz 404 XXVI INDEX TO CASES CITED. Section Section Jackson <•. Seldon 286 Jenncr v. Clegg 565 V. Sellick 785 V. Morgan 387 V. Silyernail 403 V. YoUand 597 V. Stackhouse 471 Jennings v. Bragge 85 V. Stacy 215 Ex parte 67 V. Stafford 485 V. Throgmorton 520 V. Stembergh 319 Jervons v. Harridge 382 V. Stewart 706 Jerwitt V. Ware 307 V. Stiles 705 Jesse V. Gifford 174 V. Streeter 150 Jetter v. Mann 214 V. Tibbetts 490 Jeune v. Ward 95 !,. Titas 427 Jewell V. Schroeppel 650 V. Todd 95 Jones V. Berkley 264 V. Topping 293 V. Chamberlin 63 r. Vauderheyden 105 V. Green 675 V. Van Eensselaer 774 V. Jones 44 u. Vosburgh 707 V, Logwood 166 V. Wallyer 754 V, Morey 502 V. Waters 12 V. Muldrow 530 V. Wheeler 47S ,521 V. Percival 213 V. Whitford 707 V. PoweU 203 V. Wiley 469 V. Eeynolds 638 V. Winslow 170 V. Eoberts 497 V. Wyckoff 300 V. Shears 524 Jackson dem. Bowen v. Burton 472 V. Thorne 418 Bulkley v. Delacroix 39 dem. Griffith v. Marsh 64 Church V. Brownson 407 John V. Jenkins 38 Clinch V. Miller 60 Johns V. Whitley 289, 292 Colden v. Brownell 407 Johnson v. Bains 760 Colton V. Harper 471 V. Carr 630 De Bidder v. Eogers 758 V. Hereford Churchward- Griswold v. Bard 68 ens 363 Harris v. Fuller 472 V. Hinman 705 Lewis V. Schutz 284 V. Moore 97 liitt V. Stratton 95 V. Proctor 248 Livingston v. Groat 407 V. Wallyer 540 V. Kip 79 Johnstone v. Haddlestone 486 V. Selover 698 I Jordan v. TweUs 378 Loux I'. Buel 698 V. Wikes 102 Merrick v. Post 170 Joule V. Jackson 589 Saxton V. May 698 Jourdain v. Wilson 262 Van Eensselaer v. Collins 641 K. Van Rensselaer v. Hogaboom 299 Kane v. Eolger 665 Weldon v. Harrison 703 V. Sanger 441 Wood V. Salmon 468 V. Vanderbergh 690 Jacob V. King 750 Keech ti. Hall 120 Jacobs i\ Graham 78 Keeling v. Mooi-e 357 Jaffery v. Bastard 742 Keite v. Boyd 739 James v. Dean 434 Keith V. Swan 118 V. Emery 264 Kellogg V. IngersoU 320 V. ITowks 653 V. Eobinson 262 V. Landon 89, 92 | Kelly V. Clubbe 619 V. Stiles 149 V. Dutch Church 310 V. Vanderheyden 169 V. Weston 533 Jaques v. Withby 267 Kemp V. Darrell 478 Jebb V. Jebb 697 V. Derrell 68 Jenkins v. Bodlen 164 Kendj-icks i'. Jndah 456 V. Hopkins 318 Kenny v. May 609 V. Morton 664 Kent V. Webb 252 V. Pell 420 Kerly v. Hume 749 INDEX TO CASES CITED, XXVll Kerr v. Shaw V. Sharp Kesler v. McConachy Ketsey's Case Kidd V. Darmison Kidder v. "West Kimball v. Keyes Kimersley v. Orp Kimpton v. Eve King V. Argand V. Eraser V. Jones V. Wilcomb King's Chapel v. Pelham Kingsland v. Barnwell Kinkhara v. Sharp Kinlyside v. Thornton Kinney v. Watts Kirkland v. Poinsett Kirkman v. Jarvis Kirwan v. Latour Kline v. Beebe V. Catora Klingsby's Case Knevitt v. Pool Knickerbocker v. Killmore Knight V. Bennett V. Crockford Knightley v. Bulkley Knipe v. Palmer KnoUe's Case Knowles v. Richardson Knuckle v. "Wynwick Kortz V. Carpenter Kray v. Goodwin Ladd V. Thomas jpade V. Shephard Lady Montague's Case St. John V. Pigott Lajoy V. Priman Lamb v. Bunce Lamott V. Stewart Lane v. Crockett V. King V. McKean Langdon v. Potter Langendyck v. Burhaus Lansing v. Montgomery V. Prendergast V. Rattone V. Smith 0. Van Alstyne Lasala v. Holbrook Latbrop V. Marsh Law V. Hempstead Lawrence v. Buckman V. French V. Obee Lawrenson v. Butler Section Section 310 Lawton v. Lawtou 544 607, 613 V. Rivers 243 379 Lay V. King 223 628 Laycock v. TulFnell 757 345 Laythrop v. Bryant 36 315 Layton v. Pearce 251 105 Leach v. Thomas 343 288 Leader v. Noxon 178 259 Lean v. Shute 105 82 Lear v. Caldicott 733 650 Lecatt V. Stewart 705 324 Lee V. Adkius 166 546 V. Norris 34 293 V. Risdon 546 142 Lee's Case 503 216 Leeds v. Cheetham 329 547 V. Compton 410 255 Lees V. Nutall 138 650 Legg V. Robinson 422 646 Legh V. Hewitt 344 550 Leicester i\ Rehoboth 87 95 Leigh V. Heath 774 270 V. Hurd 419 115 V. Shaw 158 534 Leighton v. Theod 62 247 Leland v. Tansey 710 19 Lent V. Norris 246 35 Lesley v. Randolph 56 54 Leslie v. Pounds 175 136 Lessee of Brown v. Galloway 712 154 Galway v. Doyle 705 203 Rugge V. Ellis 698 436 Lester v. Garland 78 308 Level V. Withington 313 114 Levern v. Gierke 248 Levy V. Godson 603 Lewees v. Ridge 666 Lewis V. Campbell 146 566 V. Lee 106 783 V. Little 790 159 V. Payne 165 547 V. Pead 98 92 u. Ponsford 781 246 V. Ringo 522 375 V. Wallace 654 604 V. Weldon 276 537 V. WUlis 705 104 Leyman v. Abeel 220 787 Lifford's Case 354 711 Liggins V. Inge 240 92 Lincoln Bank v. Drummond 288 457 Line v. Stevenson 254 581 Lisher v. Pierson 754 207 Lister v. Brown 612 31 Lithgow V. Cavanagh 104 233 Little V. Latbrop 174 696 V. Martin 19 83 V. Palister 173 668 V. Pearson 640 562 Livatt V. Wilson 227 240 Livingston v. Adams , 225 36 V. Conner 700 XXVIU INDEX TO CASES CITED. Section Livingston v. Livingston 656 V. Potts 506 V. Reynplds 345 V. Sticks 246 V. Tenbroeck 219 Lloyd V. Bisbee 525 V. Crispie 406 V. Gregory 512 V. Peel 711 V. Tompkins 307 Loades v. Kemp 331 Lockier v. Patterson 732 Locldey v. Lockley 660 Lockwood V. Barnes 29 Logan V. Heron 468 Loudon V. Greyme 348 Water Works v. Bailey 127 Loomis V. Wilbur 352 Lord Chesterfield v. Bolton 364 Courtown v. Ward . 346 Cromwell's Case 277 Grey de Wilton v. Saxon 691 Ormond v. Anderson 46 I^ich V. Franks 620 Southampton v. Brown 258 Lott V. Thomas 320 Lougce V. Cotton 577 Lougher v. Williams 660 Lovat V. Lord Ranelagh 495 Love V. Dennis 705 Lovett u. Steam Sawmill 129 Loward v. Palmer 440 Lowe V. Griffiths 96 V. Peers 267 Lower v. Winters 29 Lowther v. Kelly 258 Lubbock V. Tribe 342 Lucas V. Commerford 365 Lucke V. Lucke 258 Lucky V. Eousee 661 Lucy V. Livingston 312 Ludford v. Barber 113 Ludlow V. McCrea 247 Ludwell V. Newman 252 Luke V. Smith 527 Lunt V. Brown 785 V. Hunter 222 Lush V. Druse 392 Luxmore v. Robson 361 Lybray v. White 770 Lyddal v. Dunlap 459 Lyde V. Eussell 551 Lyme v. Moody 771 Lynch In re 100 Lyon r. Reed 150 u. Weldon 609 Lysle V. Williams 78 M. Macher v. The Foundling Hospital 419 Mackay t>. Bloodgood 166 Section Mackay v. Mackreth 459 Mackworth v. Thomas 673 Macombet v. Parker 540 Macon v. Crump 670 Maidstone ;;. Stevens 700 Main's Case 360 Mallory's Case 156 Mallott V. Brayne 646 Malpas V. Ackland 130 Malverer v. Spinke 352 Mauby v. Scott 101 Manchester v. Hough 104 Mann v. Lovejoy . 56 Manning v. Smith 162 Mansell v. Burredge 264 Manser's Case 326 March v. Freeman 661 Marir v. Simple 711 Mark v. Noyes 358 Marley v. Rogers 707 Marquissee v. Ormston 771 Marriott !). Stanley 770 Marrow v. Turpin 627 Marsh v. Brace 626 V. Curteys 497 Marshall v. Broadhurst 460 V. Craig 270 V. Davis 739 V. Dupey 712 V. Gibbs 561 V. Rutton 105 Marston v. Hobbs 666 Martin v. Baker 262 V. Black 577 V. Dwelley 104 V. Goblet 240 u. Lucas 791 V. Martin 311 V. Ray 754 V. Sterling 83 V. Waddell 222 V. Yeager 791 Marvin v. Stone 164 Maseall's Case 665 Mason v. Hall 224 V. Hill 224 Massengill v. Boyle 1 63 Massey v. Goyner 231 Massie w. Long U4 Master v. Baldwin 67 Master, &c. v. Dewalden 420 Mather v. Trinity Church 749 Mathias v. Mesnard 590 Matter of Dyett 135 NichoU 135 Matthews v. SawoU 509 V. Stone 595 Matthewsoa v. Lydiate 270 Matts V. Hawkins 188 Maverick v. Austin 216 u. Gibbs 52 V. Lewis 24 INDEX TO CASES CITED. XXIX Section - Section Mavis V. Sparks 790 Miller v. Heller 67 Maxwell v. Ward 339 V. Johnson 140 May V. Fry 255 V. Parsons 326 Maynard v, Maynard 167 V. McBrien 705 Maynard's Lessee v. Cable 471 u. Maynewaring 101 Mayo V. Fletcher 124 u. The Auburn & Syracuse V. Shattuck 632 R. R. Co. 338 V. "Winfree 558 Mills V. Baer's Executors 376 Mayor of Congleton v. Pattison 260 V. Barber 117 Carlisle v. Blamer 190 V. Hall 210 London v. Hedger 691 V. Hallock 540 Lyme v. Henley 775 Milne v. Branch 449 Newport v. Sanders 638 Milner v. Horton 255 New York v. Cushman 398 V. McClean 787 V. Lord 181 Milwood V. Coffin 179 McCall V. Lenox 121 Miner v. Clark 311 McCampbell v. Miller 682 Minshall v. Lloyd 553 McCarty v. Hudson 761 Mitford V. Fenwick 86 V. Orphan Asylum 126 Mitchell V. Reynolds 417 MeClogan v. Huston 420 V. Walker 243 McCoIgan v. Huston 745 V. Warner 320 McComb V. Wright 137 Moale V. Tyson 436 McConnell v. Brown 167 Mockley v. Riggs 282 McCormick v. Connell 298 Moers v. Wait 354 McCoy V. Hyde 721 Moffat V. Smith 639 McCracken's Heirs v. McCracken's Molans v. Arden 566 Executors 353 MoUet V. Brain 515 McCrea v. Pumort 251 MoUett V. Brayne 482 McCready v. Brisbane 441 MoUineux v. Powell 694 McDaniel v. Hughes 653 Molloy V. Irwin 153 McDill V. McDill 141 Monk V. Cooper 150,372 McDonald v. Lindall 214 Montague v. Smith 664 McEldery v. Flanagan 384 Moody V. Garrison 67 McFarlan v. Watson 636 V. Leavitt 681 McFarlay v. Baker 754 Mooers v. Choat 365 McGeehan v. McLaughlin 679 Moore v. Beaseley 32 McGill V. Hinsdale 571 V. Blake 49 McKane v. Wood 195 V. Bowmaker 742 McKinley v. Reader 609 V. Dame Brown 211 McKinney v. Ehoads 168 V. Foley 140 McKirden v. Hawley 571 V. Hussey 70 MeLachlan v. McLachlan 281 V. Massie 790 McLaughlin v. Long 686 V. McKay 153 Mechanic Bank v. Capron 457 V. Pyrke 183 Mechelau v. Wallace 66 V. Rawson 239 Meeker v. Van Rensselaer 208 V. White 350 Menough's Appeal 391 Morgan v. Bissell 42 Merick v. Lewis 26 V. Griffith 150 Merrill v. Emery 288 a. Powell 42 V. Frame 254 Morgcl V. Paul 25 Merritt v. Brinkerhoff 204 Morgell V. Paul 639 V. Parker 224 Morough V. O'Dea 153 Messenger v. Armstrong 486 Morris v. Dewitt 746 Messing v. Kemble 771 V. Edington 315 Mlckie V. Executors of Wood 42,52 Mortimer v. Orchard 33 Middlebrook v. Corwin 540 V. Preedy 618 Middlebury College v. Cheney 324 Mosely v. Virgin 685 Middlemore v. Goodale 251 Moshier v. Reding 26 Midgeley v. Lovelace 568 Moss V. Gallimore 112 Miles V. St. Mary's Church 441 Mott V. Hicks 127 Millard v. Robinson 599 Moyle V. Moyle 346 Miller v, Bristol C* 214 Mumby v. Whitney 31 XXX INDEX TO CASES CITED. Mumford v. Erowu Murray v. De Eottenham Murphy V. Llicas Muspratt v. Gregory Myers v. Malcomb V. White N. Section 326 456 790 589 201 571 Naish V. Tatlock 636 Nash V. Ashton 306 V. Turner 89 Nation v. Poxer 643 Naylor v. Arnitt 131 V. Collinge 549 Neal V. Clantire 593 V. Swind 641 Neale v. Lower 74,91 V. Mackenzie 379 V. WylUe 174 Neave v. Moss 89 Nellis y. Lathrop 383 Nelson v. Carrington 495 Newall V. Wright 124 Newbiggin v. Pillans 107 Newcomb v. Agan 24 V. Harvey 617 New Haven St. & Tr, Co. v Van- derbilt 199 Newkirk v. Newkirk 284 Newman v. Anterton 760 V. Holdmyfast 699 V. Eutter 410 Newton v, Allen 679 V. Harland 524 V. Osborn 462 V. Wilson 18, 52 Niblet V. Smith 735 Nicholl V. Gardner 575 Nichols V. Dusenbury 374 V. Nichols 751 V. Williams 56 Nickerson v. Bracket! 222 Niles V. Sawtell 667 Nind V. Marshall 251 Noble V. Bates 417 V. ICing 306 Noe V. Gibson 594 Noke V. Awder 261 Noke's Case 307 Norman v. Foster 312 V. Wells 260 Norris v. Baker 203 V. Harrison 390 i: Ins. Co. 676 North V. Earl Stafford 656 Northrup v. Northrnp 276 Norton v. Heron 140 V. Sheldon 298 V. Vultee 437 0. Section Oakapple dem. Green v. Copons 478 Oakley v. Schoonmaker 713 Gates V. Frithe 155 Obermyer v. Nichols 391 O'Brien v. Grison 154 O'Conner v. Spaight 495 Odell V. Wake 428 O'Donnell v. Seybert 583 O'Fallon v. Daggett 215 Offatt V. Trail 566 Ogilvie V. HuU 312 Ognel's Case 619 O'Herliby v. Hedges 337 Oland V. Burdwick 535 Gland's Case 535 Olcott V. Frazer 598 Oldershaw v. Holt 415 Oliver V. Houdlet 95 O'Mahoney v. Dixon 495 Onslow V. Corrie 370 Opperman v. Smith 576 Orgill V. Kempstead 680 Orne v. Broughton 459 O'Eonrke v. jPercival 48 Osgood V. Dewey 636 Osmond v. Fitzroy 98 Osward v. Gilfert 398 Owen V. Aprice 660 V. Connor 558 V. Davis 32, 97 V. Hyde 353 Oxley V. Cowperthwaite 740 V. James 16, 110 V. Watts 613 Packer v. Gibbius 645 Paddleford v. Paddleford 350 Paelon v. McBride 588 Page V. Church 756 r. Earner 744 Palmer v. Edwards 109, 560 V. Mulligan 204 V. Stebbins 417 V. Whettenhal 659 Pamer w.-.Stabick 734 Pangburn v. Partridge 739 Panton ti. Holland 231 Paradine v. Jane 364 Paramore v. Johnson 652 Paramour v. Yardley 134 .Parker v. Foote 239 V. Gravenor 249 V. Parmele 265 V. Smith 211 V. Starkweather ' 587 V. The Cutler M. Co. 222 Parkins v. Coxe 353 INDEX TO CASES CITED. XXXI Section Parks V. City of Boston 519 Parmenter v. Webber 109 Parnaby v. Lancaster 197 Parry v. Duncan 576 Parsons v. Miller 276 Partington v. Woodcock 119 Patrick v. Balls 80 Patridge v. Bell 121 V. Scott 234 V. Townley 320 Patterson v. Adams 739 Pattisoii V. Adams 749 V. Hull 44 Paul V. Nurse 411 Pavey v. Burch 251 Payne v. Rogers 175 Peacock v. Purvis 604 Peavce v. Humphrey 740 Pearsall v. Post 215 Pease v. Simpson 739 Peck V. Gurney 610 Peering v. Brooke 38 Pell V. Brown 291 Pember v. Mather 120 V. Mathews 448 Pembertou v. King 546 V. Van Eensselaer 574 Pemble v. Clifford 743 Pendleton v. Dyett 377 Pendred v. Griffith 337 Penliyrn v. Hughes 318 Penley v. AVatts 368 Peun V. Develin 698 V. Glover 312 V. Preston 246 Pennant's Case 492 Pennington v. Morse 64 Pennsylvania v. Eobinsou 786 V. Waddle 789 Penrndock's Case 210 Penry v. Brown 548 Penton v. Robart 545 People V. Alberty 345 V. Godfrey 792 V. Haskins 370 V. Hickox 793 V. Leonard 791 V. Manning 281 V. Nelson 319 V. N. York Common Pleas 761 V. Niagara Common Pleas 762 V. Reed 790 V. Rickert 79 V. Runkle 788 V. Seymour 229 V. Shaw 790 V. The Canal Appraisers 229 V. Utica Ins. Co. 126 V. Van Nostrand 789 Perkins v. Coxe 353 V. Lyman 673 Perlcy r. Chandler 213 Section Perley v. Watts 110 Perreau v. Bevau 729 Pcrrine v. Cheesoman 166 Perrott v. Dupre 330 V. Perrott 694 Pen-y v. Aiken 149 V. Bowcn 138 V. Brown 361 V. Price 166 Pet V. Addy 395 Peter v. Kendall 150,515 Peters v. Newkirk 565 Petrie v. Bury 259 V. Daniel 543 Peyton v. St. Thomas's Hospital 231 Phelps V. Decker 266 V. Sawyer 310 Phillips V. Bacon 604 V. Berryman 731 V. Covert 63 V. Doelittle 495 V. Hartley 40 V. Pearce 629 V. Price 744 V. Steven 357 Philpot V. Hoare 408 Phyffe V. WardeU 336 Pierce v. Dent 201 V. Fuller 417 V. Musson 232 V. Van Dyke 762 Pierse v. Shaw 111 Piggott V. Brittles 597 V. Mason 383 Pike V. Evans 57 V. Eyre 90 Pilkington v. Peach 143 V. Shaler 365 Pilkington's Case 566 Pilling V. Armitage 335 Pillow V. Love 545 Ex parte 715 Pindar v. Ainsley 373 V. Rutter 329 Pinero v. Judson 41 Pitcher v. Tovey -371 Pitt V. Russell 624 V. Shew 610 V. Smith 100 ;;. Snowden 570 Pizy V. Rogers 328 Pleasant v. Benson 111 Pledall V. Knapp 609 Plimpton V. Curtis 29 Pluck V. Digges 16 Plummer v. Harper 206 Plymouth v. Carver 437 Pollard V. Schaeffer 364 Pomfret t'. Rycroft 214 Poole V. Bentley 41 Poole's Case 545 Poor V. Peebles 576 xxxn INDEX TO CASES CITED. Section Pope V. Biggs 119 Pordage v. Cole 246 Porris v. Allen 510 Port V. Jackson 436 Porter v. Noyes 320 V. Shepherd 83 V. Spencer 657 V. Stewart 269 Post V. Kearney 262 V. Kimberley 658 Poston V. Jones 377 Pott V. Lesher 636 Potter V, Bacon 674 v.Han. 558 V. Taylor 320 Poultney v. Warren 712 Powell V. Clarke 163 V. Dillon 35 Powers V. Russell 168 V. Ware 276 Powis V. Smith 114 Powley ('. Walker 252 Pratt V. Brett 422 Preece v. Corrio 560 Prentice v. Achorn 100 0. Elliott 649 Prescott V. Deforest 569 V. Freeman 322 Price V. Heyler 778 V. Limehouse 563 V. Williams 37 Prichard v. Atkinson 239 Priudle v. Anderson 485 Printems v, Helford 565 Pritchard v. Ovey 332 Proctor V. Harris 198 Profert v. Parker 44 Proud V. HoUis 174 Pugh V. Duke of Leeds 78 Pullen V. Brady 282 V. Palmer 568 Pultard V. Hilder 471 Purfel V. Sands 576 Purple V. Purple 742 Purrington v. Loring 613 Putnam v. Richie 135 V. Wise 24 V. Wylie 780 Pym V. Blackburn 357 Pyn V. Dor 355 Pyott V. Lady St. John 358 Pyke V. Thomas 417 Quackeuboss v. Clark 448 V. Lansing 164 Queen's College, Oxford, v. Hallett 173 Quincy v. Hall 758 E. Section Raikes v. Townsend 208 Raine v. Alderson 15 Ralph V. Gist 166 Randall v. Rich 515 i;. Rigby 619 ■0. Russell 262 Eande v. Ohes. & Del. C. Co. 245 Randel v. Ches. & Del. Canal 674 Rathbuu v. Payne 199 Rawlins v. Turner 29 Eawson v. Eicke 639 Rawstorne v. Eentley 339 Raymond v. White 545 Rayner v. Stone 421 Raynor u. Wilson 511 Reab v. McAlister 373 Read v. Burley 587 V. Parr . 402 dem. Errington 488 Reading v. Menham 539 Rector of Chedington's Case 76 Redpath v. Roberts 473 Redshaw v. Bedford Level 338 Reed v. D arrow 577 V. Hoyt 770 V. Parsons 493 Rees V. Emerick 772 V. Iving 298 V. Lawless 787 V. Lord Dacre 332 V. Overbaugh 165 Reeres v. McKenzie 558 Regina v. Bucknell 178 Remnant r. Bembridge 643 Remsen v. Conklin 493 Rcnnicker v. Smith 100 Rennie v. Robinson 654 Respublica !). Sparhawk 181 V. Thryber 179 Reve V. Bird 515 Rex V. Bath 790 V. Carlisle 193 r. Com'rs. of Paghan Level 197 V. Cotton 598 V. Harrow 237 u. Jones 193 V. Lewis 740 V. Lloyd 794 V. Nichols 794 V. Oatley 545 V. Rosewell 420 <-'■ Smythe 787 V. Stacey 92 V. St. Dunstan's 546 V. St. Luke's 179 V. Taylor VgOl V. Tippett 230 t. Topping 220 V. Wilson 7S6 Reynard v. Porter 60 Reynolds v. Com'rs. of Stark Co. 126 INDEX TO CASES CITED. XXIU Section Section Reynolds v. Buckle 627 Rogers v, James 222 V. Pitt 496 r. Lynde 721 u. Shulor 545 V. Pitcher 707 V. Swain 577 V. Stewart 206 V. Thorp 755 Roles V. Eosewell 673 Ehoades v. BuUard 315 Rolfe V. Harris 496 Eich V. Frank 626 Rolls V. Rock 774 V. Hotclikiss 92 Roof V. Stafford 93 Richards v. Killam 663 Roper V. Bumford 630 Richardson v. Evans 410 V. Lloyd 388 V. Hall 640 V. Williams 4i3 V. Laiigrade 60 Ross V. Overton 357 V. McDougal 186 V. Sadgbeer 417 V. Sydenham 333 RoswiU's Case 694 Richart v. Scott 233 Rotch V. Miles 105 Richmond v. Thompson 705 Rotheny v. Wood 604 Eickert v. Snyder 678 Roulstone v. Clarke 755 Rickett V. TuUick 67 Eowan v. Lyttle 55,65,487 Ricketts v. Solway 220 V. Woodward 264 Riddle v. Weldon 583 Rowland v. Rowland 785 Eider v. Smith 178 Eoyston v. Cordrye 626 Ridge V. Wilson 558 Eubery v. Stevens 451 Right V. Beard 63 Ruberry v. Jervois 251 V. Cuthell 479 Eubicun v. Williams 726 V. Darby 55,475 Euckham p. Astor 446 V. Proctor 26 Ruggles V. Lawson 169 V. Rawden 23 Rumball v. Murray 435 dem. Bassett v. Thomas 159 Eunnells v. BuUen 225 Plower V. Darley 22 Eushden's Case 384 Ripley V. "Wightman 372 Russell V. Doty 673 Rising V. Stannard 62 V. Gulwell 246 Roach V. Cosine 719 V. Jackson 214 Road V. Sill 653 V. Men of Devon 182 Eobbins v. Kitchin 629 V. Popham 201 Eoberts v. Barber 420 V. Scott 164 V. Davis 492 Rust V. Low 184 V. Fennell 635 Rutgers v. Hunter 322 V. Jackson 168 Eyal V. Rich 528 V. Wiggin 95 Eobertson v. St. John 338 S. Eobie V. Smith 83 Robinson v. Hoffman 568 Sachevcrell v. Firoggatt 156 V. Litton 694 Sackett v. Barnum 600 V. Mead 750 Sackrider v. Beers 204 Rockwell V. Bradley 474 V. McDonald 613 Roe V. Davis 706 Saffyn's Case 15 V. Galliers 280 Salisbifry v. Hale 58 V. Harrison 286 V. Marshall. 381 V. Hodgson 133 Salmon v. Bradshaw 315 V. Lowe 118 Saltenstall v. White 716 V. Pogson 318 Salter v. Codbolt 626 V. Prideaux 83 Sampson v. Easterby 249 V. Sales 403 V. Henry 524 V. Wiggs 481 Samways v. Eldsley 250 dem. Berkley v. Archbishop Of Sapsford v. Fletcher 182 York 150 Sarch v. Blackburn 195 Goatley v. Payne 362 Satterloe v. Mattbewson 707 Gregson v. Harrison 110 Saunders v. Pope 495 Rogers v. Ake 573 V. Van Sickle 571 V. Arnold 739 Saunders's Case 157 V. Birkmere 574 Saunderson v. Harrison 385 V. Humphreys 119 Savage v. Dent 715 XXXIV INDEX TO CASES CITED. Section Section Savage v. Dupuis 476 Simpson v. Gutteridge 133 Saville v. Saville 318 V. Hartopp 587 Sawyer r. Fitts 704 V. Phinelander 721 Schieffelin v. Carpenter 513 V. Titwell 277 Schlencker v. Moxby 738 V. Tittwell 220 Schuyler v. Hoyle 432 Sinclair i'. Jackson 87 V. Leggett 79 Singleton v. Bremar 73 Scott V. Goodwin 664 V. Pinley 792 V. Hall 684 Sir T. Stripling's Case 367 V. Hawsham 654 Six Carpenters' Case 566 V. Tyler 277 Skaife v. Jackson 628 V. Waithman 742 Skerne's Case 445 V. Wilson 221 Skinner v. Dayton 117 Scovel V. Cabel 281 Slack V. Brown 633 Seabourne v. Powell 324 r. Slack 457 Sea Ins. Co. v. Stebbius 123 Slingerland v. Morse 750 Seaman v. Browning 309 Slingsby's Case 264 Seaver v. Dingley 739 Slocum V. Clark 568 V. Phelps 97 Smith V. Benson 548 SecTdon v. Senate 251 V. Bowin 94 Sedwick v. HoUeuback 312 r. Colson 561 Seitziuger v. Weaver 320 V. Crockett 739 Sells V. Hoare 731 ti. Day 73, 567 Semayn's Case 578 V. Emery 664 Senior v. Armitage 538 V. Farst 641 Serrcs v. Dodd 749 V. Fyler 579 Servants v. James 116 u. Goodwin 733 Seton V. Slade 30 V. Henry 139 Seuthcote v. Hoare 264 i: Low 93 Seward v. Jackson 704 V. Mailings 385 Seymour u. Billings 758 V. Mapleback 510 Shadwell v. Hutchinson 173 (,'. Marable 381 Shannon v. Bradstreet 34 V. Meander 732 Shaw V. Clements 163 V. Meanor 563 V. Hurd 269 V. Miller 780 Shee V. Hall 489 V. Niver 512 Shelby v. Hearne 262 ,.. Norfolk 626 Shepherd v. Boyee 760 V. Pocklington 668 Sheriff v. James 731 V. Putnam 40S Sherman v. Irvine's Lessee 698 V. Rawleigh 388 Sherry v. Preston 565 V. Russell 205 Sherwood v. Burr 227 I'. Shepherd 391 V. Phillips 581 V. Simonds 459 Shleffelin v. Carpenter 361 V. Stewart 471,663 Shippey v. Derrison 35 V. Strong 164 Shopland v. Eider 135 V. The Saratoga Ins Co. 492 Shotwell V. Boehm 711 c. Tyler 561 V. Smith 123 V. Walton 756 Shubrick v. Salmond 255 V. Williamson 749 Shult V. Barker 355 Smithwick v. Ellison 541 Shuter's Case 98 Suelling v. Stagg 366 Sickles i: Frost 631 Snook r. Sutton 135 Sill V. Road 653 Snyder v. Hill 583 Sills V. Brown 199 V. Knuckleman 565 Silver v. Kenrick 410 V. Vaux 748 Simons v. Farron 418 Somerville v. Stevenson 662 V. Norton 351 Sopi-ain v. Skurro 266 Simonton's Estate 169 Sorsbie v. Park 264 Simpkin v. Ashm-st 65 Soulsby V. Nevins 528 Simpson v. Ammons 121 Sonthgate v. Chaplin 312 V. Batcher 112 Soward i'. Leggett 359 V. Clayton 443 V. Palmer 392 INDEX TO CASES CITED. XXXV Section Section Spai'hawk v. Broome 456 Story V. Bliss 540 Sparks v. Smith 365 Stoughton V. Baker 222 Sparrow v. Bristol 435 Stout V. Kcan 447 V. Hawkes 244 Stratton v. Lord 714 Spencer v. Burton 70 Street v. Tugwell 204 V. Field 139 Strickland v. Maxwell 164 V. McGowan 582 Stricler v. Todd 224 V. Parry 341 Strohecker v. Grant 420, 664 Spencer's Case 18, 252 Strong V. Stebbins 611 Spragg V. Hammond 396 Strowd V. Willis 027 Sprague v. Baker 263 Stuart V. Fulton 640 Stabler v. Cowan 141 Stubbs V. Parsons 395 Stackhouse v. Healy 186 Stultz I'. Dickey 538 Stafford v, IngersoU 184 Stuyvesant v. Davis 492 V. London 206 V. Dunham 781 Stains v. Morris 448 V. Tompkins 781 Stainsforth v. Fox 39 Style V. Hearing 89 Stanley v. Twogood 358 Suffern v. Townsend 782 Stannard i\ Eldridge 320 Sullivan v. Euders 60 Stansell v. ToUard 233 u. Jones 641 Staples V. Hay den 213 Sumner v. Conaut 104 V. Spring 206 V. Williams 253 Starr v. Jackson 173 Sunderland v. Newton 696 State V. Armfield 578 Surplice v. Farnsworth 646 V. Johnson 787 Surry v. Brown 156 V. Page 24,37 Sutherland v. Lishman 259 V. Purse 201 Sutton V. Clarke 196 V. Thackaw 578 V. Cole 250 of Connecticut v. Bradish 170 t'. Waite 742 Georgia v. Worcester 8 Suydam v, Jones 260 New Hampshire v. Peai son 790 Swain V. Holman 105 Steams v. Godfrey 272 Swan V. Earl of Falmouth 731 Stedman v. Page 568 V. Shumwell 763 Steel V. Mast 69 V. Transham 140 V. Wright 375 Swearingen v. Magruder 567 Stetson V. Faxon 208 Sweet V. Pym 577 Stevens ;;. EecTes 540 Swift V. Thompson 545 V. Simmons 407 Switzer v. Hummel 326 Stevenson v. Lambard 263 Sybum v. Warrington 164 V. Powell 319 Symms v. Smith 674 V. Silvernail 408 Symonds v. Cudmore 504 Stevenson's Case 248 V. Seaboume 178 Stewart v. Doughty 537 Symons v. Symons 112 u. Drake 320 V. Hall 138 T. V. Roderick 705 Stewkley v. Butler 501 Taffe V. Warwick 545 Stickleham v. Hatchman g49 Talavande v. Cripps 558 Stiles V. Cowper 113 Talbot V. Ford 268 I). Hooker 204 Tall V. Nixon 666 St. John V. Palmer 308 Talman v. Coffin 699 Stockett V. Watkins 642 Tarr v. Jones 636 Stokes V. Cooper 379 Tart V. Crawford 170 V. Russell 446 Tatem v. Chaplin 262 Stone V. Dennis 269 Taunton v. Costar 531 V. Gilliman 248 Taylor v. Beal 630 V. Proctor 541 V. Buckner 698 V. Whiting 514 V. Bullen 281 V. Wood 140 V. Cole 435 Storer v. Gordon 258 V. Debar 324 Storey v. Robinson 596 V. Hampton 239 Storm V. Mann 696 V. Henniker 735 XXXVl INDEX TO CASES CITED. Taylor v. Lanyon V. Mason V. Needham V. Owen V. Salmon V. Sandford V. Shum. V. Townsend V. Whitehead V. Zamira " Tempest v. Eawling Temple v. Logwood Templeman v. Biddle V. Smith Tenny v. Childs Terboss v. 'Williams Test V. Deveus Thatcher v. Omans Thayer v. Wendall The Commonwealth v. Charleston Newberry Passmore Section 602 274 705 437 138 673 370 545 184 341 39 84 538 749 42 572 793 104 669 221 216 192 Tarmers Bank v. Mutual Ins. Co. 449 King V. Pedley 175 V. Kussell 193 Master, &c. v. Dewalden 251 Mayor of Carlisle v. Blamier 669 &c. of New York v. Furze 201 V. Lord 181 Oxford V. Richardson 222 People V. Canal Appraisers 229 V. Cunningham & Harris 194 V. Piatt 221 Seneca E. R. Co. v. The Au- burn R. R. Co. 764 Thier v. Barton 294 Thomas v. Cadwallader 683 V. Cook 514 V. Godfrey 704 V. Pyke 668 V. Thomas 217 V. Van Kapff 400 V. Wright 469 Thompson v. Button 739 V. Gibson 784 V. Gregory 237 V. Hewitt 456 V. Leach 147 V. Machiter 587 V. Rose 263, 420 V. White 251 V, Wilson 515 Thomdike v. AlUngton 659 Thome v. Benton 118 Thornton v. Adams 577 V. Payne 41 Thresher v. East London Water- works 357 Throgmorton v. Whelpdale 521 Thrusby v. Plant 438 Thunder v. Belcher 474 Section Thurston v. Hancock 230 Thurston's Case 84 Tice V. Norton 760 Tileston v. Newell 265 Timmins v. Eowlinson 482 Tinckler v. Prentice 392 Tobey v. Webster 173 Todd V. Collins 196 Toder v. Easeley 790 Tomliu V. Puller 216 Tomlinsou v. Day 386 Tompkins v. Elliott 264 Tongue v. Pitcher 620 Torriano v. Young 343 To"wnsend v. Corning 140 V. Davis 705 V. Morris 669 V. Orcutt 139 Tracy v. Hereford 318 V. Talbot 67 V. Tracy 694 in the matter of 100 Trappan v. Morie 577 Trede v. Foote 449 Tremere v. Morrison 460 Treport's Case 91 Trevivian v. Lawrence 91 Tritton v. Eoote 333 Trousdale v. Darnell 475 Trower v. Chadwick 231 Trumbull v. Trout 137 Trustees v. Spencer 663 V. Williams 705 &c. V. Rowlands 368 of Western Uniyersity v. Robinson Tucker v. Newman Tufts V. Adams Turbeville v. Ryan TurnbuU v. Rivers Turner v. Hardy V. Meymott fc. Sturges V. Turner Tuttle V. Jackson V. Reynolds V. Tompkins Twort V. Twort Twyford v. Bnntley Twynam v. Packard U. 218 780 320 107 216 653 530 102 742 170 472 373 694 270 296 Udall V. Udall 777 Underwood v. Burrows 67 Union Bank v. Emerson 545 United States Bank v. Bank of Georgia 394 V. Brown 250 Upton V. Ferguson 254 V. Wetherwick 520 INDEX TO CASES CITED. XXX VIJ Vaiden v. Bell Vallentine v. Jackson Valliant v. Dodemedo Van V. Corp Van Allen v. Rogers Van Alstyne v. Spraker Van Bergen v. Van Bergen Van Brunt v. Schenck Vandcrkan v. Vauderkan Van Doren v. Everitt Vane v. Lord Barnard V. Minshall Van Epps v. Harrison Van Horn v. Grain Van Ness v. Packard Van Rensselaer v. Jewitt V. Jones Section 739 561 449 45 710 704 224 613 252 135 355 105 374 445 538 298 383 v. Quackenboss 599 V. Radclifr 219 V. Van Rensselaer 774 Van Rensselaer's Heirs v . Pennimau 512 Van Santvort v. Sanford 670 Van Schaick v. Vincent 522 Varick v. Smith and The Attorney General 226 Vasper v. Eddoes 734 Vaughan v. Blanchard 379 V. Menlove 197 Vausse v. Russell 549 Vavasor's Case 347 Vedder v. Vedder 206 Veghte V. Brownell 581 Verlander v. Codd 46 Vernon v. Jeffreys 259 V. Smith 261 V. Wynne 750 Verplanck v. Wright 294 Vickery v. Jackson 358 Virtue v. Beasley 566 Vivian v. Campion 666 Voote V. Winch 243 Voyce V. Voyce 780 Vyvyan v. Arthur 260 W. Waddell v. Cook Waddilove v. Barnett Wade V. Mervin Wadham v. Marlow Wafer v. Mocato Wagner v. White Wakeman v. Banks Walcot u. Gelding Waldron v. McCarty Walford v. Beasley Walker v. Davids V. Dewey V. Hatton o. Johnson V. Reeves d 613 653 266 438, 620 412 372 474 674 308 36 497 337 no 588 449 Seclion Walker v. Richardson 5H V. Sherman 544 V. Walker 32 V. Wheeler 277 Walker's Case 378 Wall V. Hunt 790 Wallace v. King 609 V. McLaren 569 Waller v. Dean, &c. of Norwich 266 Walmsley v. Lindenberger 93 Walsal V. Heath 102 Walter v. Maunde 384 Walters v. Pfeil 231 Walton V. Cronley 436, 449 V. Flint 384 V. Kersop 751 V. Waterhouse 364 Ward V. Andrews 350 V. Duke of Buckingham 423 V. Hawley 745 V. Macauley 780 V. Mason 372 V. Shew 567 V. Smith 177 Warn v. Bickford 325 Waring v. King 641 Warner v. Hitchings 357 V. Page 420 V. Theobald 628 Warren v. Pomey 564 V. Hearnside 19 w. Lynch 166 V. Mains 270 V. Koweu 373 Warring v. King 524 Warwick v. Bruce 94 Washburn v. Sproat 546 Watchman v. Crook 251 Waters v. Lilley 222 V. Same 266 Watkins v. Holman 25 Watson V. Atkins 341 V. Bailey 104 V. Home 341 V. Watson 739 V. Welsh 540 Watts V. Acheson 515 V. Coffin 218 Weakley v. Bucknell 19 Weaver v. Lawrence 739 Webb V. Alexander 308 V. Austin 87, 91 V. Dixon 81 o. Jiggs 619 V. Plumer 252 V. Russell 118 Webber v. Shearman 62 Webster w. Bach 216 V. Warren 676 Weddell v. Capes 510 Weeton v. Woodcock 551 Weidall v. Bosberry 583 XXXVIU INDEX TO CASES CITED. Section Section Weigall V. Waters 331 Wigglesworth v. Dallison 538 Welch V. Bell 596 Wight V. Dickson 164 Welland Canal v. Hathaway 90 Wilcox V. Wood 78 539 Wells V. Bannister 545 Wilde V. Chautillon 65 V. Head 196 Wilder v. Ewbank 720 V. Horner 579 Wildman v. Wildman 101 V. Hornish 561 Wilford V. Rose 684 V. Howell 186 Wilkins v. Fry 44 V. Mason 304 V. Wingate 618 V. Ody 745 Wilkinson v. CoUey 480 526 V. Smith 274 V. Hall 57 Welsh V. Myers 456 V. Wilkinson 407 V. Nash 190 Willan V. Willan 333 V. Rose 565 Willard v. Henry 288 Wentworth v. Cook 459 V. Sillunan 388 West V. Cartledge 640 V. Tillman 260 V. Eandall 170 Williams v. Bank of United States 280 V. Sink 601 y. Bosanquet 15 Westfall V. Anker 782 V. Fry 281 Westlake De Graw 373 V. Gale 208 Wetherell v. Geering 408 V. Handley 164 V. Howell 345 0. Howard 420 ,566 Wetmore v. Tracy 208 V. Inabert 100 Wheaton v. East 93 V. Potter 301 Wheeler v. Copeland 529 V. Sherman 636 V. McFarland 739 V. Spencer 578 V. Train 748 V. The Mayor of Anna- Wheelright v. Beers 258 polis 705 V. Wheelright 167 V. Watkins 707 Whelpdale's Case 99 V. Welsh 750 Whitbeck v. Cook 313 V. Wetherby 667 V. Skinner 374 V. Williams 355 Whitchurch v. Cudmore 504 V. Woodward 450 White V. City Council 181 Willingham v. Joyce 47 V. Cougler 137 Willington v. Gale 118 V. Eagan 164 Willis V, Parkinson 179 V. Hagner 349 WiUison v. Watkins 420 V. Nicholson 343 Willoughby v. Backhouse 731 V. Simer 140 Wills V. Back 139 V. Small 98 V. Stradling 145 V. St. Guiron's 698 Wilmot V. Lansdown 694 V. Warner 496 Wilson V. Green 724 Whiteacre v. Symonds 485 V. Harm an 389 Whitecot V. Fox 497 V. Mackreth 780 V. Nine 308 V. Martin 66 Whitehead v. Clifford 473 V. Smith 353 Whitely v. Roberts 568 V. Woolfryea 90 Whiting V. Breston 548 Winship v. Pitts 693 Whitlock V. Cook 308 Winslow V. Henry 154 V. Duffield 333 V. Merchants Ins. Co. 550 Whitmarsh v. Cutting 534 V. Tighe 262 Whitney v. Allaire 175 Winter v. Loveday 73 Whittaker v. Barker 542 Winterbourne v. Morgan 605 Whitton V. Peacock 260 Winton v. Cornish 520 V. Smith 511 Wise V. Metcalfe 343 Whitworth v. Smith 730 Witby V. Mumford 666 Wickham v. Freeman 783, 785 Withers v. Birch 264 Wicks V. Caulk 170 V. Bircham 115 V. Jordan 535 Woglam V. Cowperthwaite Wolcott V. Van Sandford 558 Wigford V. Gill 209 653 Wigg V. Wigg 291 WoUaston v. Hakewell 431 Wiggins V. Armstrong 577 Wolveridge v. Steward 454 INDEX TO CASES CITED. XXXIX Wolveridge v. Stewart , Wood,,?;. Clark x^ z;._Day ~»>^ V. Hicfcock ii. Nunn V. Parsons V. Pope V. "Wilcox V. Wood Woodwai'd v. Brown, V. Gyles Woolfe V. Washburn Woolley V. Watling Worcester v. State of Georgia Worthington v. Young Wotton V. Cook Wright V, Cartright V. Cooper V. Freeman u. Howard u. Smith u. Trevesant (/. Williams Section Section .•572 Wyatt V. Han-ison 197 587 Wyman v. Ballard 320 88 V. Dorr 749 393 Wyndham v. Way 546 578 Wynkoop v. Bruger 214 387 Wynn v. Allard 199 368 640 Y. 716 521 Yarborough v. Monday 141 696 Yaw V. Leman 341 664 Yeakle v. Nace 242 641 Yeates v. Prin 720 8 Young V. Collins 243 102 V. Irwin 698 434 V. Mmitz 675 75 Youngblood v. Lowry 558 697 217 Z. 224 525 Zouch V. Parsons 93 ,101 42 dem.'Ward v. Willingdale 485 207 Zule V. Zule 387 THE LAW OF LANDLORD AND TENANT, INTRODUCTION. § 1. The relative position of a civil government to its citizens, — that of protection on the one hand, and of dependence on the other, — necessarily involves the idea of allegiance to the State, as a condition to the use and enjoyment of the land within its boundaries. Hence, some mode of tenure is incident to all government ; and the highest estate which a man can have in land has direct reference to his duty to the State, being called a tenancy in fee simple ; while the occupant is a tenant in fee, and is said to have and to hold his lands, to him and his heirs. He holds of the State ; and, if he fails in his allegiance to her, or dies without heirs upon whom this duty may devolve, the tenure is at an end, his land returns to the common stock from which he had it, and vests again in the Prince, or other representative of State sovereignty, who is thence called, in common law language, the lord paramount. § 2. This tenure necessarily gives rise to another legal relation, between the original tenants to the State and the various indivi- duals among whom they find it convenient or necessary to divide their possessions, modified in its character by the peculiarity of the government under which it subsists. History teaches, that all municipal law is but a reflection of the policy and manners of the age from which it sprung ; while the history of our law exhi- 1 2 LAW OF LANDLORD AND TENANT. bits the feudal institutions of our Norman ancestors extensively incorporated throughout the whole body of our modern jurispru- dence, but most intimately m that portion of it which forms the subject of this Essay. It will, consequently, be found difficult, if not impossible, to form correct ideas of this particular mode of tenancy, and of the various changes through which the relation of landlord and tenant has passed, — from the barbarism of ancient Europe to the humanity and refinement of free America, — without some previous knowledge of the history and character of the feudal ages, in which it matured, if it did not originate. § 3. By the theory of the English law, upon which our legisla- tion on this subject is essentially based, all property in land, since the Norman Conquest, is derived from the Crown. The King, after that event, portioned it out in large districts to the promi- nent men that surrounded him, and who had been useful to him in war, and were capable of advising him in peace. These again subdivided their districts among their immediate followers and dependents, the actual occupants and cultivators of the soil. To all such grants, however, an express reservation of military ser- vice was annexed ; each of the principal feudatories becoming, in turn, the head of a military power, always liable to be called into action, and ever ready to defend his chief. As a compensa- tion for this service, the vassal was entitled to the use of the soil, the fee remaining in the lord ; but he was regarded rather as a bailiff or servant, and accountable for the profits, than as having any direct property in the land.^ His tenure, or fief, as it was called, was of the most precarious kind, depending entirely on the pleasure of his lord, and afforded little if any encouragement to the improvement and cultivation of the land. § 4. It soon) however, appeared to be so manifestly just that one who had sowed and cultivated the land should be allowed to reap the crop, that fiefs, which were at first so precarious, pre- sently became annual. They were next granted during a term of years, in favor of men who had employed their means and labor in building, planting, and improving, and who would have Gilb. on Ten. 30; Bacon on Leases, I ; 2 Bl. Com. 141. INTRODUCTION. 3 no inducement to do so unless they were to be permitted to enjoy the fruits of their labors for a reasonable period. Then, as it would be hard to deprive a man of his possessions who had always done his duty, and performed the conditions on which he received them, chieftains soon began to consider themselves entitled to demand the enjoyment of their lands for life. Finally, it was found that a man would more willingly expose himself in battle, and devote himself more unreservedly to his lord's service, if assured that his family should inherit his possessions, and not be left in poverty by his death, and fiefs became hereditary. ' § 5. But although a certain degree of stabihty thus began to be attached to fiefs and tenures, they were burdened with the most onerous incidents. No man could dispose of his lands, either by sale or by will, without the consent of his superior. The possessor was not the proprietor, but the mere beneficiary, and could not oblige his superior to accept of any vassal that was not agreeable to him. Hence arose fines for alienations, escheats, reliefs, wardships, and primer seizins. Women were obliged to marry the nominee of the lord or forfeit their lands, and then fre- quently paid large sums for the privilege of making their own choice in marriage. Even justice was openly bought and sold ; and the king's court, the highest judicature in the kingdom, was, under this detestable policy, open to none but those who brought presents. The miserable vassal was in fact, as well as in name, his lord's man. Surrendering to him his intelligence with his independence, his whole life was spent in a laborious and degraded vassalage upon the soil, where he received protection and from which he derived subsistence. The tenure by which he held was feudal ; and the whole policy of the system, — originally derived, in all probability, from the Gothic conquerors of the Roman Empire, — essentially warlike, though servile in its character, was well calculated to defend by arms that which had been obtained by force. The feudal system remained in operation during the whole time the laws and institutions of England were in the process of formation, and necessarily gave character to them. And although it was essentially abolished during the reign of Charles the Second, when it came to be considered as destruct- ive of the pubhc peace, and opposed to the progress of society ; yet the traces of its policy are still visible on both sides of the 4 LAW OF LANDLORD AND TENANT. Atlantic, much of its technical language is retained, and many of its arbitrary rules yet exist. § 6. We have seen that a leading characteristic of feudal tenures had been, that the vassal took the profits, while the pro- perty of the soil remained in the lord ; the lord's seignory, toge- ther with the vassal's feud, made up the whole estate. But, by a series of legislative enactments, forced from the hand of unwil- ling power, by the gradual advance of intelligence and the resist- less demands of the money-king, Commerce, these separate pro- perties were blended into one estate ; and the period at length arrived when the true proprietor held his lands of no superior, to whom he owed homage, fealty, or other arbitrary service. He now had the entire right and dominion over the estate, and might alienate it in any way he thought proper. His land was no longer locked up from commerce, but he possessed that free and full control over it which has been found so useful and necessary in the business of life, and thence enjoyed an estate called allo- dial} § 7. There was, also, an intermediate species of feudal tenure, called a socage tenure ; but its incidents, although definite and certain, were scarcely diflferent from, or less rigorous and obnox- ious, than the arbitrary and uncertain tenure by knight-service. As society advanced, miUtary services became less requisite and agricultural productions more in demand, while the lord found his interest in commuting the one for the other. Still, however, the principal difference between these several tenures continued to be, that the services and incidents of the latter were of a fixed and certain character ; while the former enjoyed not even this poor privilege. § 8. The remote and isolated position of the United States pre- served their independence of all these embarrassing tenures ; and, with a slight exception, their present condition includes no tenure but that whith we have said is incident to every free government. The law of nations has always acknowledged the right of a nation ' From a priTative, and lode, or leude, a vassal ; that is, without vassalage. INTRODUCTION. 5 to acquire property, and sovereignty over any uninhabited coun- try which it discovers without a previous owner, if it proceeds to occupy and settle such country in a reasonable time. But the question has been left unsettled, whether a nation may lawfully take possession of a country where there are none but wandering tribes, whose scanty population is incapable of occupying the whole. It is admitted, however, to be lawful to confine such tribes within fixed limits, whenever it becomes necessary to make use of the land of which they stand in no particular need, and of which they make no actual and constant use. The discovery of America, consequently, conferred upon the government by whose authority such discovery was made the ultimate dominion of the soil, with the right of granting title thereto, subject only to the Indian right of occupancy.^ The original settlers of this country invariably respected this right ; and although they came with royal patents, authorized to take possession of and colonize their chartered domains, yet, following the example of the New Eng- land Puritans, subsequent colonists generally, if not uniformly, recognized the Indian title, and, from time to time, acquired by fair purchase such lands only as the Indians were willing to sell. The General Grovernment has acted upon the same humane prin- ciple ; and the Indian title is now, by this mode, nearly extin- guished throughout the wide expanse of our national domain. § 9. The ownership of land is, therefore, essentially free and independent in all the States ; but in the State of New York, previous to the year 1787, a considerable portion of land was held in free and common socage, under grants — of what had been unappropriated land — from the British Crown, expressly creating such a tenure. During that year, the Legislature abolished all the common law incidents of such tenure, reserving only rents and services certain, together with the right of distress, as inci- dent thereto. The Revised Statutes of that State, in 1830, went the entire length of abolishing the existing theory of socage tenures of every description, with all their incidents, and declared that all lands within the State should be, thenceforth, held upon a uniform allodial tenure, — vesting the entire and absolute pro- ' Worcester v. The State of Georgia, 6 Peters, K. 515 ; Johnson v. Mcintosh, 8 Wheat. E. 543. 1' 6 LAW OP LANDLORD AND TENANT. perty in the owners, according to their respective estates. At the same time, they provided that no rents, or services certain, which had been at any time previous, or might thereafter be created or reserved, should be thereby taken away or discharged. This statutory provision has now, by the adoption of the Constitu- tion of 1846, become a fundamental law of that State. <5> 10. Allodial estates have, in fact, no mark or incident of tenure attached to them, being enjoyed in absolute right : while the term tenure implies the holding of some superior, and a sub- jection to an ultimate dominion, which, we have seen, is abolished, except so far as is necessarily implied in the duty of allegiance to the State. 15ut it is used in the statute in a popular sense for right or title, and may serve to show how tenacious a grasp the feudal principle has had on the public mind and policy, that its language must still be retained although the thing itself has ceased to exist in any shape. "§> 11. If any feudal fiction or service can yet be supposed to remain in any part of the United States, it is believed to consist solely in the principle, that lands may be held of a person to whom the payment of a determinate rent, or certain service instead of rent, is due, as to a lord paramount. But this wants the essential characteristic of a feud, since it exists only by virtue of an express and voluntary contract between the parties, and, if retained at all, received a most important modification by the devolution of 1776, which transferred the domain, with the sove- reignty of Great Britain, ,to the people of the United States. So that fidelity to the State is now the only fealty that any man owes for his lands ; his only lord paramount is the people of the State where such lands are situated. § 12. Origin of Leases. We have seen the doctrine of our republican law to be, that all private title to land, within the United States, is derived ultimately from grants of the State, or general governments, or from royal grants prior to the Revolu- tion, confirmed by those governments.^ These grants to original Plctchcr V. Peck, 6 Cranch, R. 87 j Jackson v. Waters, 12 John. E. 365. INTRODUCTION. 7 proprietors, — of which the manor lands in New York may be cited as instances,^ — were frequently of very large extent, and, from the inability of the proprietors to cultivate them, could have been of but little use to the owners, so long as they remained entire in their hands ; while the public would necessarily want that strength and security which land, well-peopled and cultivated, inva- riably produces. Hence it became necessary to subdivide these large tracts amongst those who would cultivate and improve the land, to the advantage not only of the proprietor, but of the public. "§> 13. The return usually made by tenants employed in the cultivation of land was an annual contribution of corn, cattle, or other produce ; or in the performance of some service, either in the family of the proprietor or upon the farms which he retained in his possession. In proportion, however, as agriculture im- proved and money increased, it was found that these services, although burdensome to the tenant, were of little advantage to the proprietor ; and that the produce of a large estate could be much more conveniently disposed of by the farmers themselves, who raised it, than by the landlord or his bailiff, who was formerly ' In this State certain purchasers, or, as they were variously called, patentees, patroons, or lords, early obtained from the British sovereigns letters-patent, grant- ing large districts in the central regions of the Colony. Some of these proprietors, in a spirit of emulation then deemed harmless and laudable, obtained permission from the Crown to erect manors within these districts, with certain political, judi- cial, and legislative privileges and advantages, which have long since become obso- lete. With reference to those advantages, however, they adopted a system of grant- ing lands, not absolutely in fee simple by deeds, but as qualified estates in fee simple, by instruments which are commonly called leases, whereby the patroon or landlord reserved for his own use all water power and mineral wealth. Perpetual rents were reserved ; portions of which were paid in wheat and supplies for the table of the proprietor, and the residue in services or labor, to be performed by the tenants about his manor house. Alienation by the tenants was restrained, unless with the lord's consent, to be obtained by paying to him one quarter, or some other part of the purchase-money. The right to distrain for rent, — a severe but not then unusual legal remedy, — was incorporated in the leases, with stringent covenants for the payment of taxes and other purposes ; and with various condi- tions securing to the landlord a right to reenter and resume the land. However unwise for both contracting parties such conveyances may now seem, it ought to be remembered that, at the time of their institution here, they were not at all ano malous, and they contributed to the settlement of extensive districts by an indus- trious population, who had not sufficient capital to become absolute purchasers of estates. 8 LAW OF LANDLORD AND TENANT, accustomed to receive it. A commutation was therefore made of rents for services, and of money for those in kind ; and as men in a subsequent age discovered that farms were better cultivated where the farmer enjoyed a security in his possession, the prac- tice of granting leases for a fixed period at length generally pre- vailed. Such appears to have been the origin of farming leases, while in cities and towns, it is obvious, the investment of money in houses naturally presents one of the most certain and regular returns for the employment of capital ; conferring, at the same time, an important benefit upon men of moderate means, by enabling them to occupy hired houses and stores, and devote the whole of such capital as they possess to the purposes of com- merce. The terms and duration of possession, and the mode of enjoyment, in either case, necessarily assume the shape of a con- tract, express or implied, constituting a lease ; while the parties themselves are placed in the relation of landlord and tenant. OH. I.] THE CKEATION OP A TENANCY. 9 CHAPTER I. THE CREATION OF A TENANCYj, § 14. The relation of landlord and tenant subsists by virtue of an agreement, express or implied, between two or more persons, for the possession of lands or tenements, in consideration of cer- tain rent to be paid therefor. The contract itself is called a lease or demise, and is a species of conveyance for life, for years, or at the will of one of the parties, usually containing a reservation of rent to the lessor. A stated rent, however, is not essential to the contract ; because from favor, or for a consideration passing to the lessor at the time of its inception, a lease, beneficial in its nature to the lessee, may be made without a reservation of rent.^ Independent of the idea of a contract, a lease also possesses the property of passing an interest, and thence partakes of the nature of an estate, which, when limited to a certain period for the enjoyment of land, becomes a term for years ; but, if it depends upon the duration of a life or lives, rises to the dignity of a free' liold.2 •Ji 15. The estate of a lessee for years is called a term, ter- minus, because its duration is limited and determined ; for every such estate must have a certain beginning and a certain end. It must be perfected by the entry of the lessee ; for, before entry, the whole estate remains in the lessor, and the lessee has strictly • Hunt V. Comstock, 15 "Wend. K. 667. ' The particular regard which the law continues to show to the tenant of a free- hold, and the preference given to him above a tenant for years, depends upon feudal principles which have no application to the condition of society under a republican government. In feudal times this estate was, perhaps, more valuable and permanent than an estate for years, as long terms were then unknown. It may have been more honorable, as a proof of military tenure, which embraced privileges only allowed to tenants of the King who took the oath of fealty, — an oath which was never permitted to be taken by any whose estate was less than for life. But will any one, in our commercial age, assert, that an estate for the life of any mere man is of as much value, intrinsically, or entitled to equal consideration with a term for five hundred or a thousand years ? 10 LAW OF LAlfDLOKD AND TENANT. [CH. I. no estate, but merely a right, -which is called an interesse ter- mini} This interest, though assignable, cannot be the foundation of a release, to operate by way of enlargement, from the les- sor ; 2 nor -will it qualify the owner to maintain an action of tres- pass or ejectment. The lessgjE,may enter at any time during the term, notwithstanding the death of the lessor; and, after his entry, he becomes absolute owner of the premises for the term granted, the deed taking efifect from the time of its execution.^ But his entry is not necessary to entitle the lessor to sue for rent, since it becomes due by the lease, and not by the entry ; except in case of a lease at will, where rent becomes due only in conse- quence of occupation. § 16. Ajerm signifies not only the limitation of .tjma^ut the estate and interest that pass for such time ; and although the words lease and demise are often used to signify the estate and interest which is conveyed, they properly apply to the instrument, or means of conveyance. It is essential to a lease, also, that some reversionary interest be left in the lessor ; * for if he parts with his whole interest in the premises, or makes a lease for a period exceeding his term, it will, in either case, amount to an assignment.^ But if a lessee disposes of his term, reserving any portion thereof, however small, the instrument will operate as an under lease.^ ^ 17. As to what property may he demised. It is a general rule, that any thing corporeal or incorporeal, lying in livery or in grant, may be the subject of a demise. And, therefore, not only lands, but commons, ways, fisheries, franchises, estovers, annuities, rent-charges, and all other incorporeal hereditaments, are included in the common law rule.^ Goods, and other personal chattels, may ^ Williams v. Bosanquet, 1 Brod. & Bing. 238 ; Co. Lit. 46, b. The expression interesse termini is also used to denote the interest of a lessee in a term that is to commence in future. Copeland v. Stephens, 1 Bar. & Aid. 593, 606. 2 Saffyn's Case, 6 Coke, 123, b; S. C. Cro. Jac. 60 ; Cro. Eliz. 127. " Eaine v. Alderson, 6 Scott, E. 691 ; S. C. 4, Bing. N. C. 702. 4 Barker v. Birbeck, 3 Burr. 1556 ; 1 Black. E. 482. » Pluck V. Digges, 2 Hud. & Br. 1 ; 5 Man. & Ey. 157 ; Hicks v. Downing, Ld. Kay. E. 99 ; Oxley v. James, 13 Mees. & "VVels. 209. * Fulton u. Stuart, 2 Ham. Ohio E. 221 ; Crusoe v. Bugbey, 3 Wils. E. 224. ' Shep. Touch. 268 ; Bac. Abr. Leases, (A.) CH. I.] A TENANCY BY IMPLICATION. 11 also be demised ; but although rent cannot be said, technically, to issue out of them, the contract for its payment is valid, and an action for rent in arrear may be maintained upon such leases. <§i 18. It is frequently found convenient, also, to include the sheep or other live stock, and farming implements upon land, or the furniture and other chattels in a house, in a contract of lease ; and they have hence, to a certain degree, acquired demis- able qualities, although the interest which passes to a lessee is very different from that which is transferred by the lease of a house, land, or other hereditament. The lessee has the use of them during the term, and is restrained from destroying, selling, or giving away any part of them ; but the lessor's reversionary interest is considered of so precarious a nature as to be accounted in law a mere possibility ; no lease or grant can, consequently, be made of them, during or after a term in possession, until the les- see has redelivered them. And, in case of a lease of live stock, the absolute property of such as die vests in the lessee ; as also do the calves, lambs, or other produce of such stock, which are considered to be profits, severed from the principal, in compensa- tion for the rent paid by the lessee. It is, therefore, usual upon such leases, to annex a schedule of the several articles, and insert a covenant upon the part of the lessee, to redeliver them at the end of the term ; and, without such covenant, the lessor is said to have no other remedy at law, but trover or detinue for them, after the lease is ended.^ Section I. A Tenancy hy Implication. ■ <5> 19. The relation of landlord and tenant may be created, either by implication or by express contract. The law will imply the existence of a tenancy in some cases, where there has been no distinct agreement between the parties, or where, from various ' Newton v. 'Wilsoii, 3 Hen. & Munf. 470; Co. Lit. 57, a; Spencer's Case, 6 E. 16, b. 12 LAW OF LANDLORD AND TENANT. [CH. I. causes, the agreement may have become inoperative. Thus, the mere occupation of premises, previous to or pending the execution of a lease, or the payment of rent under an invalid agreement, are circumstances from which this relation will be implied, suffi- cient to authorize the collection of subsequently accruing rent.^ If a man enters under a void lease, and afterwards pays rent, he cannot be treated as a disseizor, but becomes a tenant at will.^ And, as a general rule, the mere occupation of land, with the owner's concurrence, will enure as a tenancy from year to year^ or at will, determinable at the pleasure of the owner.^ <§> 20. The intention to create a tenancy may also be inferred from a variety of other circumstances ; as where lands descended to an infant, with respect to whom the tenant in possession was a trespasser, and an ejectment was brought and compromised by the infant's attorney upon certain terms, one of which was that the tenant should attorn to the infant ; a tenancy was held to be thereby created, although the infant had not assented to it, or received rent since he came of age.* And a similar result was said to have been produced where a feme covert lived separate from her husband, and received to her separate use the rents of certain lands, which came to her by devise, after separation ; it was presumed she received such rents by her husband's authority^ and held that he could not maintain ejectment, at least before giv- ing notice to the tenant to quit.^ "^ 21. But if no rent has been paid, and no other circumstance exists from which a consent to a tenancy can be inferred on the part of the owner, a tenancy cannot arise from mere occupa- tion. As if a man gets into a house without the privity of the owner, although they afterwards enter into a negotiation for a ' Doe V. Smythe, 4 M. & S. 347 ; Knight v. Bennett, 3 Bingh. 361 ; Hamerton V. Stead, 5 Dow. & Ey. 206 ; 2 B. & C. 478 ; Weakley v. Backnell, 4 Cow. K. 473. ' Digby V. Atkinson, 4 Camp. 275 ; Warren v. Heamside, 1 Wils. R. 176 ; Doe dem. Martin v. Watts, 7 Term R. 83. 3 Little V. Martin, 3 Wend. R. 219 ; Doe dem. Warner u. Brown, 8 East, R. 165. » Doe dem. Miller v. Asden, 2 Esp. R. 528. 6 Doe dem. Leicester v. Biggs, 1 Taunt. R. 367 ; 5 B. & C. 127 ; 1 R. & TA. 237. CH. I.] A TENANCY BX IMPLICATION. 13 lease, but differ about the terms ; or if, after being let into posses- sion, he agrees to sign a written lease, and also find a surety for the rent, but does neither ; no species of tenancy is created thereby, but the occupant is a mere trespasser.^ § 22. The payment and receipt of rent is the ordinary acknow- ledgment of a tenancy ; but if, after the expiration of a term, the tenant continues to hold over, the landlord may elect to treat him either as a trespasser or tenant. If he adopts the former course, he must forthwith proceed to recover possession of the premises ; but if he suffers him to remain, and receives rent accruing after the expiration of the term, or in any other way acknowledges him as tenant, a new tenancy arises upon the terms of the former lease, determinable only by a regular notice to quit. The tenant, however, has no such power of election as that which belongs to the landlord ; for if he holds over, though for a very short period, without any equivocal act, at the time, to give his holding the character of a trespass, he is not at liberty to deny that he is in as tenant, if the landlord chooses to hold him to that relation.^ So the occupant of a house, by submitting to a distress for rent, stated, in the notice of distress, to be due by him, to the party distraining, acknowledges a tenancy from such party .^ § 23. But the receipt of rent is only a prima facie acknow- ledgment of the existence of a tenancy ; for, where the amount received is trifling, and bears no proportion to the real value of the premises, the rule does not apply.* And if a lease is not void, but voidable only, the mere receipt of rent under it does not create a new tenancy, although it establishes the former one.'' Nor will a new tenancy be created by a mere agreement for an increase of rent in the middle of a term.*' Nor if, after a tenancy > Doe V. PuUen, 2 Bingh. N. C. 749 ; Doe v. Qnigley, 2 Camp. 505 ; Doe u. Cartwright, 3 B. & A. 326. ° Conway v. Starkweather, 1 Denio, E. 113; 4 McCord, E. 59; Bradley u, Covell, 4 Cow. E. 350 ; Abeel v, Eadcliff, 15 John. E. 505 ; Doe dem. Jordan v. Ward, 1 H. Bl. 97. 3 3 Camp. E. 372. ■>, 3 East, E. 260 ; 3 B. & C. 413 ; 5 D. & E. 273 ; Den dem. Brane v. Eaw- lins, 10 East, E. 261. 5 Bryan v. Bough, 4 Bar. & Al. E. 401. « Doe dem. Bedford ». Kendrick, cited Adams on Ejectment, 129 ; Geechie v. Monk, 1 Car. & Kirw. 307. 2 14 LAW OF LANDLORD AND TENANT. [CH. I. has expired by its own limitation, the landlord merely neglects to take possession of the premises, if he does no act in the mean time recognizing the party as his tenant.^ And if the rent is not paid and received as such, but upon some other consideration, it will not be considered evidence of a design to establish a tenancy.^ <§> 24. A mere participation in profits, with a joint occupation, or one which does not exclude the owner, will not amount to a tenancy ; as it was held, in a case where the provisions of an agreement between the defendant and a hotel company were, that the defendant should reside with his family in the hotel, free of charge for board, conduct the same in the manner contemplated by the parties, and have the exclusive management thereof, and that the furniture, at the end of the term, should be restored to the company by the defendant.^ So if land is let upon shares, it does not amount to a lease to be paid in produce ; for the posses- sion remains in the owner, and the parties are tenants in com- mon.* But if the lessee agrees to pay a certain part of the crop expressly as rent,^ or if he holds the land with the usual privileges of exclusive enjoyment, it is the creation of a tenancy for the time agreed upon, though the land be taken to cultivate on shares.® Where the owners of a farm agreed with two persons, by contract under seal, that the latter should occupy and work it for a year, and if they performed the agreement, to have it in the same way for a year longer ; the occupants, in consideration thereof, to yield and pay the owners one half of all the grain raised ; it was held, that until a division, or something equivalent, the parties were tenants in common, although the contract contained the technical phraseology of a lease, reserving rent ; inasmuch as the shares of the owners were uncertain in amount, depending upon a division of specific products ; although it would have been other- wise if the amount of grain to be rendered had been fixed and certain.' > Cobb V. Stokes, 8 East, E. 358. ' Eight V. Eawden, 3 East, E. ; Den dem. Brane v. Eawlins, 10 East, E. 261. ' State !J. Page, 1 Spear, E. 408 ; Jolmson v. Carter, 16 Mass. E. 443. 4 Maverick v. Lewis, 3 McCord, E. 211 ; Bradish v. Schenck, 8 Johns. E. 151. '■ Hoskins v. Ehodes, 1 Gill & Johns. 266 ; Newcomb v. Agan, 2 John. E. 421. « Jackson v. Brownell, 1 Johns. E. 267. 7 Putnam v. Wise, 1 Hill, E. 234; Caswell v. Districh, 15 Wend. E. 379; Chandler v. Thurston, 10 Pick. E, 205. CH. I.J AN EXPRESS AGKEEMENT. 15 § 25. Nor will tlie relation of landlord and tenant be inferred, if the position of the parties to each other can be referred to any other distinct cause. As, for instance, between the vendor and vendee of land ; ^ a mortgagor and mortgagee ; or the tenant of a mortgagor and the assignee of a mortgagee, so as to entitle the former to notice to quit.^ And, as a general rule, a tenancy by, imphcation can never arise under a party who has not the legal estate of the premises in question.^ Section II. An Express Agreement. § 26. Where a tenancy by an express agreement is created, it is either by parol or by deed. The former mode embraces all cases where the parties agree by mere word of mouth, or by a 'Writing not under seal. No particular form of expression is necessary, in either case, to create an immediate demise. Any permissive holding is sufficient for the purpose, and may be con- tained in a series of letters, or a brief memorandum ; and any evidence Avill establish the fact, from which it appears to have been the intention of one of the parties to dispossess himself of the premises, and of the other to assume such possession, for any determinate period, whether the words made use of run in the form of a license, a covenant, or an express agreement.* § 27. Leases for years being considered mere chattel interests, arising out of a contract between the parties, passing only an inte- rest in the land, and not the freehold, might at common law have been made by parol for any certain period. The contract gave the lessee a right to enter upon the land with a present interest ; and when, in pursuance of such right, he entered, the object of 1 Watkins v- Holman, 16 Peters, K. 25. 2 Jackson v. Eowland, 6 Wend. K. 666. ' Morgel V. Paul, 2 Man. & Ey. 303. ■* Moshier v. Reding, 3 Fairf. E. 478 ; Merrick v. Lewis, 3 McCord, E. 211 ; Caswell V. Districh, 15 Wend. E. 379 ; Eight v. Proctor, 4 Burr. 2208 ; Chapman u. Bluck, 5 Scott, E. 531. 16 LAW OF LANDLORD AND TENANT. [CH. I. the contract was accomplished, the term was vested in the lessee, the se{zi7i in the land still remaining in the freeholder. But as the tenant was never technically seized, and held only in the name of his lord, he could not defend himself in a real action, and was liable to be dispossessed at the pleasure of the tenant of the freehold, by his suffering a common recovery. ^ So precarious an interest, on the part of the tenant, was soon found to be prejudi- cial to agriculture ; inasmuch as there was no encouragement for a tenant to cultivate his lands in a proper manner, which, as we have observed, was one of the principal inducements for a tenant to take a lease. His interest was rendered less insecure by the statute 19 Hen. VI., which gave him a right to recover, when unduly evicted, not only damages for the loss of possession, but the possession itself. But the term became a certain and perma- nent interest by 21 Hen. VHI., which enabled a lessee for years to entirely falsify a recovery to his prejudice under such circum- stances.^ § 28. The statute of 29 Car. II. c. 3, usually called the statute of frauds, first enacted, as a remedy for many evils arising from parol demises, that all leases, estates, or terms of years, or any uncertain interest in land, created by livery only, or parol, and not reduced to writing and signed by the party making the same, or his agent, should have no other force or effect than a mere estate at will only ; excepting leases for a term not exceeding three years, whereupon the rent reserved shall amount to two thirds of the full improved value of the premises. The leading provisions of this statute have been very generally adopted in the United States. The Revised Statutes of New York declare, " no estate or interest in lands, other than leases for a term not exceeding one year, shall hereafter be created, granted, assigned, or surrendered, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party granting, &c., or by his lawful agent, thereunto authorized by writing." And " every contract for leasing for a longer period than one year, &c., shall be void, unless the contract, or some note or memorandum 1 Co. Lit. 46, a; 9 Mod. K. 102; Shep. Touch. 210. 2 4 Kent, Com. 85. CH. I.] AN EXPRESS AGREEMENT. 17 thereof expressing the consideration, be in writing, and be sub- scribed by the party, or his agent, &c." ^ § 29. In Massachusetts, all estates and interests in land, cre- ated without writing, are declared to be estates at will only ; while in Connecticut, no leases of land exceeding a year are valid, except as against the grantor, unless in writing, and signed by the lessor in the presence of a witness. Pennsylvania follows the English statute, and allows parol leases, not exceeding three years, without adding any thing as to the reservation of rent. In the other States, the English statute of frauds is generally fol- lowed ; 2 except in Michigan, Indiana, and Illinois, where the New York statute has been adopted. ^ 30. As, by the statute, every agreement not in writing and signed by the party to be charged therewith, or his authorized agent, is void, that, by its terms, is not to be performed within the time therein specified, a verbal agreement for such time must commence from the making of the agreement, and cannot be made to commence from some future day.^ And although per- formance of the agreement is to begin, and does in fact com- mence within the year specified in the statute ; yet if the agree- ment is one which cannot, by its terms, be completely executed within that period, it is a case within the statute, and void.* But a parol agreement to pay for improvements upon land, on delivery of possession to the landlord, is not within the statute, and, there- fore, valid.^ It is otherwise, however, if the tenant entered wrongfully upon the land ; for, in such case, there would be no consideration to support a promise, written or parol." So, also, an agreement to occupy lodgings at a yearly rent, payable in quar- terly portions, the occupation to commence at a future day, and possession not being taken, is an agreement relating to an interest ' 2E. S. 135, § 8. = 4 Kent, Com. 95 ; Mass. Eev. St. 408. ' Rawlins v. Turner, Ld. Ray. K. 736 ; 12 Mod. R. 610 ; 3 Burr. E. 1278 ; 1 Black. K. 353 ; 11 East, 142 ; 1 B. & A. 722. " Lockwood V. Barnes, 3 Hill, R. 128 ; Cabot v. Hoskins, 3 Pick. R. 83 ; Plimp- ton V. Curtis, 15 "Wend. R. 336. 5 Benedict v. Bebee, 11 John. E. 145 ; Lower v. Winters, 7 Cow. E 263. 8 Jrear v. Hardenberg, 5 John. E. 272. 2* 18 LAW OF LANDLORD AND TENANT. [CH. I. in land, -within the meaning of the statute of frauds, and must, therefore, be in writing.^ § 31. The possession of lands is an interest within the meaning of the statute, whether it be a permanent right to hold lands for a particular purpose ; or to enter upon them at all times without consent ; or for the purpose of erecting and keeping in repair a house, embankment, or canal, in order to raise water to work a mill ; 2 and must, consequently, be in writing. But a license or authority to enter upon the lands of another, to do certain acts, without possessing any interest in such lands, is founded in per- sonal confidence, and valid though not in writing. The conferring of a right, however, to enter upon lands, and erect and maintain a dam as long as there shall be employment for the water-power thus created, is more than a license ; it is the transfer of an inte- rest in lands, and must, therefore, be in writing.^ ■§) 32. A parol agreement to grant a lease, though it may be void under the statute, as not reduced to writing, will be enforced in equity when there is a substantial part performance, though on the part of the plaintiiF only ; * and a specific performance will be decreed, although signed by one party only.^ If possession is delivered under an agreement, it will be considered as a part per- formance ; ^ especially if the tenant expend money in building or improving, according to the agreement.^ But acts merely intro- ductory, or ancillary to an agreement, will not be considered as a part performance, although attended with expense.^ ' Inman v. Stamp, 1 Stark. K. 12. 2 U Mass. E. 533; 1 John. Ch. R. 131. ' Mumby v. Whitney, 15 V?end. E. 380. ■• Jackson ;,•. Pierce, 2 John. E. 221 ; HoUis v. Whiting, 1 Vem. E. 151 ; Walker V. Walker, 2 Atk. E. 100; 14 S. & E. 567 ; 5 Watts, 308. ■> Owen V. Davis, 1 Ves. E. 83 ; Scton v. Slade, 7 Ves. E. 265. " Moore v. Beasley, 3 Ham. E. 294 ; Butcher v. Stapely, 1 Vem. E. 363 ; 2 Ibid. 452; Bowers v. Caton, 4 Ves. E. 91. ' Foxcroft V. Lister, 2 Term E. 456 ; 2 Preem. 26S ; 2 Ves. Jr. 243 ; 3 Burr. 1919. In Foster v. Hall, 3 Ves. 712, the court said it had gone too far in taking cases out of the statute ; for a man having laid out a vast deal of money does not prove that he is to have a ninety-nine years' lease. The remedy ought to rest in compensation. 8 Clark V. V?right, 1 Atk. E. 12; 1 Bro. C. C. 412 ; Cook v. Toombs, 2 Anst. 420; Cooth V. Jackson, 16 Ves. E. 12. CH. I.] AN EXPRESS AGREEMENT. 19 § 33. Possession, however, must be voluntarily delivered in part performance ; for if the purchaser obtain it wrongfully it will not avail him.^ A possession, which can be referred to a title distinct from the agreement, will not take a case out of the sta- tute ; therefore no possession by a tenant can be deemed a part performance.^ And the acceptance of a trifling earnest, or pay- ment of money on account, though it will make a personal con- tract good by the statute, is not enough where the contract concerns lands. ^ Even the payment of a considerable sum will not be considered part performance of such a contract.* And although an agreement be in part performed, yet the court, it seems, may not be able to understand its terms, and then the case will not be taken out of the statute.^ But the mere circum- stance of the terms not appearing, or being controverted by the parties, will not deter the court from taking the best means in its power to ascertain the real terms.^ And, if a parol agreement is so far executed as to entitle either of the parties to require a spe- cific execution of it, it will be binding on the representatives of the other party, in case of his death, to the same extent as he himself was bound by it.'^ § 34. The common law required, that every conveyance of land should be not only in writing, but sealed and delivered ; and this provision, with some modification, prevails generally in this country. The statutes of South Carolina require the conveyance of all freehold estates in land to be by writing, signed, sealed, and delivered. In Virginia and Kentucky the same things are required, as to all estates or interests in land, exceeding a term of five years. In Rhode Island and Vermont, as to all estates exceeding a term of one year. In Louisiana, all conveyances of land are made by writing only, and must be registered in the office of a notary.^ In New York, the English common law doc- ' Cole V. "White, 1 Bro. C. C. 409. 2 "Wills V. Stradling, 3 Ves. E. 373. 3 Alsopp V. Patten, 1 Vera. B. 472 ; Coles v. Trecothick, 9 Ves. E. 234. * Clinau v. Cook, 1 Sch. & Lef. 22, 123 ; Butcher v. Butcher, 9 Ves. E. 382. » Foster v. Hale, 3 Ves. E. 712. e Mortimer v. Orchard, 2 Ves. Jr. 243 ; 6 Ves. E. 470 ; 3 Bro. C. C. 149. 7 Ibid.; Shannon v. Bradstreet, 1 Sch. & Lef. 52. 8 4 Kent, Com. 443. 20 LAW OF LANDLORD AND TENANT. [CH. I. trine has been adopted in part, by holding, as we have seen, that a conveyance of every freehold estate must be by deed. In each of the States, therefore, where the English statute has been adopted, leases for life must be by deed ; but when for a term of more than three years, may be either by deed, or by a note in writing, signed by the party or his agent. And, for this reason, an agreement, not under seal, that the lessor should not turn out the tenant so long as he paid rent, has been held invalid ; be- cause the tenancy created by it would not be determinable, so long as the tenant complied with the terms of the agreement, and Avould, therefore, operate as an estate for life, which can only pass by deed.^ § 35. As to what is a sufficient signature to the agreement, required by the statute, it has been held to be unnecessary that the note in writing should be contemporaneous with the making of the agreement ; it is sufficient if made by the parties at one time and adopted afterwards ; and then any thing under the hand of the party to be charged, amounting to an acknowledgment that he had entered into the agreement, will satisfy the statute. As where a person made a verbal agreement to take a lease for fif- teen years, and it was made out and sent to him for his signature ; he returned it, and wrote on the back of the lease as follows : " I hereby request you to endeavor to let the premises to some other person, as it will be inconvenient for me to perform my agreement for them ; and for so doing this shall be a sufficient authority." Lord BUenborough held that this was a clear recognition and adoption of a prior existing contract, and was sufficient to bind him.^ But the circumstance of a party altering a draft of con- veyance, and delivering it to the attorney to be engrossed, does not amount to signing it.^ Nor is the statute complied with, unless the agreement, though entirely written with the party's own hand, be likewise signed by him, or something equivalent thereto, be done ; because the absence of a signature is evidence that the party considers the instrument to be incomplete.* But 1 Doe V. Brower, 8 East, R. 165. = Shippey v. Derrison, 5 Esp. N.P. C. 190 ; Powell v. Dillon, 2 Ball & Beat. ■■' Hawkins v. Holmes, 1 P. "Wms. 770 ; 1 Vera. R. 221. * Charlewood v. Duke of Bedford, 1 Atk. E. 497. CH. I.] OP AN AGREEMENT FOR A LEASE. 21 if he is in the habit of printing, instead of writing his name, he may be said to sign by his printed as well as by his written name.^ And the name of the party may be put to the instrument by his direction, if in his presence, by the hand of another person.^ <^ 36. At common law, the place of signing is immaterial ; for, if a person draw up an agreement in his own handwriting, begin- ning, " I, A B, agree," &c., and leave a place for his signature, but does not sign it, the agreement will be considered as suffi- ciently signed.^ For, wherever an agreement has been reduced to a certainty, and the statute has been substantially complied with, forms are never insisted on. Upon this principle it was held, that the signing of an agreement as a witness only, by one who was acquainted with its contents, was sufficient.* But the Re- vised Statutes of New Yor]i require, that the name of the party shall be subscribed or signed below, or at the foot of the memo- randum ; what, therefore, under the old statute was deemed a sufficient signing, is not now a compliance with the statute of that State requiring a subscription.^ It was formerly doubted, whe- ther an agreement could be specifically enforced against a defend- ant, who has signed it, when it was not signed by the party seek- ing performance ; ^ but it seems now to be well understood, that it may not only be enforced in equity, but may also be the found- ation of an action at law.^ Section III. Of an Agreement for a Lease. § 37. It sometimes becomes difficult to distinguish, in the form of an agreement, between language importing an actual lease and ' Per Ld. EMon, in 2 Bos. & Pul. 239. ' Prost V. Decring, 21 Maine, E. G9. ■* Knight V. Crockford, 1 Esp. N. P. C. 11, 19. " "Walford v. Beasley, 3 Atk. R. 503; S. C. 1 Ves. E. 6. 5 Davis & Brooks v. Shields, 26 "Wend. E. 341. 8 Per Ld. Eedesdale, in Lawrenson v. Butler, 1 Sch. & Lef. 13, ' Allen V. Bennet, 3 Taunt. E. 176 ; 2 Ball & Beat. 58 ; 2 Jac. & Walk. 427 ; Laythrop v. Bryant, 2 Bingh. N. C. 735 ; S. C. 3 Scott, E. 238. 22 LAW OF LANDLOED AND TENANT. [CH. I. terms -whicli amount to no more than an agreement for one. This distinction is important to both parties; for it may happen, that what Avas intended by the one as an agreement for a lease only, may be construed into a lease ; and the other will thereby avoid covenants which would have been imposed upon him, if a regular lease had been executed. While its importance to the lessee appears from the fact, that, on the execution of an actual lease, he acquires an interesse termini, which, upon entry, vests the term in him ; but, by an agreement only, he will acquire no legal interest in the term or in the land, and cannot set it up as a defence to an action of ejectment brought against him. It ope- rates, however, as a license to enter upon the premises agreed to be demised ; and if the intended landlord refuses to grant the lease, it gives the intended tenant a right to file a bill in equity, to enforce a specific performance of the agreement, or to maintain an action for damages, if any damage has resulted from his refusal to perform the agreement.^ This distinction has led to so much litigation in England as to call for an act of parliament ; which now provides that no lease in writing of any freehold, copyhold, or leasehold land shall be valid as a lease, unless it be made by deed ; but that any agreement in writing, to let any such land, shall be vaUd, and take efiect as an agreement to execute a lease ; and that the person who may be in possession of land, in pursu- ance of an agreement to let, may, from payment of rent or other circumstances, be construed to be a tenant from year to year.^ § 38. As the law stands with us, the whole question resolves itself into one of construction ; and an instrument is to be consi- dered a lease, or only an agreement for a lease, according to what appears to be the paramount intention of the parties, as such intention may be collected from the whole tenor and efiect of the instrument.^ The law, it is said, will do violence to the words, rather than break through the intent of the parties, by construing it a lease, when the intent is manifestly otherwise.* Thus, an express proviso that an instrument is not to operate as a lease, ' Price V. Williams, 1 Mees. & Wcls. 6. - Stat. 7 & 8 Vict. c. 76, ^ 4. 3 Goodlittle v. Way, 1 Tei-m R 735 ; State v. Pago, 1 Spear, E. 408. ' Hallott V. Wylie, 3 Johns. E. 44 - 333 ; 5 Ibid. 74 - 424 ; 2 Black. 973. CH. I.] OF AN AGREEMENT FOR A LEASE. 23 but only as an agreement, shows clearly the intention of the par- ties, notwithstanding the inference which might be drawn from other clauses in the same instrument ; i but the mere use of the word agreement will not, of itself, make an instrument such, if 'the intention is manifestly otherwise.^ § 39. Words of present demise, as doth let, agrees to let, agrees to pay for, doth demise, shall enjoy, or the like, will generally make an actual lease.^ But the use of such words, however strong, will not constitute the instrument a lease, if it can be inferred from the rest of the paper that the parties had it in con- templation to enter into a future lease.* An instrument contain- ing words of present demise, but in which was an agreement, on the part of the owner, to make alterations and improvements, and by the other party to take a lease, when the premises should be so altered and improved, was held to be only an agreement for a lease.^ So a paper containing words of present demise, with an agreement that the lessee shall take possession immediately, and that a lease shall be executed in futuro, operates only as an agree- ment for a lease.^ § 40. A man agreed that another should enjoy the mills, &c., and engaged to give him a lease for a certain time and at a cer- tain rent ; and, by another part of the same agreement, an addi- tional piece of land was to be purchased by the former and added to the land demised ; it was held, that this amounted only to an agreement for a lease.' An agreement in these words : " It is hereby agreed, by and between A. and B., that A. -will let to B. the use of the county house in L. ; and B. agrees to pay therefor the ' Perring v. Brooke, 1 M. & K. 510; 7 Car. & P. 360. 2 John V. Jenkins, 1 Cr. & M. 233 ; 3 Tyr. 177 ; 14 Yes. E. 156. " Baxter v. Brown, 2 W. Bl. 973 ; StainfortU v. Fox, 9 Bing. 590 ; 3 C. & P. 441 ; Doe v. Groves, 15 East, E. 244. ^ Jackson v. Moncrief, 5 Wend. K. 26 ; Jackson o. Myers, 3 John. E. 388 ; Tempest v. Eawling, 13 East, E. 18; Eenner v. Hepburn, 2 Y. & C. 159. 5 Jackson dem. Buckley v. Delacroix, 2 Wend. E. 433 ; 12 East, E. 168 ; Coo- ley V. Streetan, 3 D. & E. 522. s Goodlittle v. Way, supra, 3 Taunt. E. 65. ' 5 Term E. 163 ; 12 East, E. 247 ; Dunk v. Hunter, 5 B. & A. 322 ; Clayton V. Burtenshaw, 5 B. & Cr. 41. 24 LAW OF LANDLORD AND TENANT. [OH. I. sum of $750 annually, provided a majority of the county court Tvill agree thereto," is only an agreement to lease on a precedent con- dition.^ So where the words of an agreement were, that A. shall liold and enjoy, and, in a subsequent part, the grantor engaged to give him a lease ; the court held, that although the words shall enjoy might constitute a present demise, yet they were qualified, by the subsequent engagement, into an agreement for a future lease. ^ § 41. Where an instrument has contained a clause, to the effect that it should be binding until a lease is executed, it has been generally construed to be an actual lease. So the words, A. hath and ly these j^resents doth demise, create a present interest ; and a subsequent agreement, to give a more formal lease, contained in the same instrument, was held to be only in the nature of a cove- nant for further assurance.^ And where the instrument was as follows : " A. agrees to let, and B. to take, for the term of sixty- one years ; and, in consideration of a lease to be granted by A. for the said term, B. agrees to expend £2,000 in building, &c. ; A. to grant a lease as soon as the houses are covered in ; this agreement to be considered binding, until one fully prepared can be procured ; " the court held it to be a lease, considering it to have been the intention of the parties that the tenant, who was to expend so much capital upon the premises, should have a present interest in the term ; although, when a certain progress was made in the building, a more formal lease was to be executed, in which, perhaps, the premises might be more particularly described, for the convenience of underletting or assigning ; and that the stipu- lation for a future lease did not, of itself, indicate an intention that the instrument should not operate as a present demise, but merely that a more formal instrument should thereafter be exe- cuted to effect the same thing, as being more satisfactory than the present instrument.* But if there are words of present demise, > Biiell V. Cook, 4 Conn. R. 238. = Doe dcm. Jackson v. Ashburner, 5 Term E. 163 ; 3 Dow. & Ey. 522 • 2 Barn & Cr. 273 ; Philips v. Hartley, 3 C. & P. 121. ' " ' 3 Jackson v. Keisselbrach, 10 Johns. E. 436 ; Barry v. Nugent, 5 Term E 176- 9 Ad. &E1. 644; 4M. &W. 704. ' ' ' -. Poole V. Bentley, 12 East, E. 168 ; 2 Black. E. 973 ; 6 East, E. 580 ; 3 N. & M. 137 ; Doe dem. Walker v. Groves, 15 East, 244 ; Pinero v. Judson, 6 Bing. 206. CH. I.] OF AN AGREEMENT FOR A LEASE. 25 without any thing to indicate that the parties contemplate a fur- ther assurance, it is a lease.^ § 42. Certainty as to the time -when the term is to commence, and also as to its duration, and the amount of rent to be paid, is usually necessary to make an instrument operate as a present demise ; ^ and uncertainty in the terms of holding will generally induce the courts to construe it as a mere agreement.^ A. agreed " to let premises to B. on lease, with a purchasing clause, for twenty-one years, at ^£63 per year," B. to enter at any time on or before a particular day ; and it was held to amount to an agree- ment only, the court saying there were no words of demise ; that the commencement of the tenancy was left uncertain, and that the words, as to purchasing, showed that the letting was to be by a particular instrument, containing such a clause.* The courts will sometimes, also, look at the contemporaneous acts of the par- ties, to assist in the construction of ambiguous words in an agree- ment.5 So, strong circumstances of inconvenience may indicate the intention of the parties, that it shall be only an agreement ; such as that a forfeiture will be incurred ; ^ or a stipulation, that out of the rent mentioned a proportionate abatement should be made, in respect of certain excepted premises, with a further stipulation, that the tenant shall hold under all usual covenants, &c., for it may be disputed what are usual covenants.'' Notwithstanding such a clause, however, an instrument may still be sufficiently cer- tain to become a lease.^ § 43. From a consideration of the cases, the rule would appear to be, that if an instrument, professing to be an agreement for a > Hallett V. Wylie, 3 Johns. E. 44; Thornton v. Payne, 5 Ibid. 74; Mickie v. Ex'r of Wood, 5 Kand. E. 571. 2 Wright V. Trevesant, 3 C. & P. 441 ; 8 Bing. 178 ; 3 N. & M. 137 ; 5 B. & A. 322; 5 B. & C. 41 ; Clayton v. Burtenshaw, 7 D. & E. 800; 5 B. & C. 41 ; 1 Cr. &M. 227; 3 Tyr. 170. ' Alderman v. Neate, 4 M. & W. 704 ; 8 Bing. 178 ; 9 Ad. & El. 644. * Dunk V. Hunter, 5 B. & A. 322 - 1042. 6 Doe V. Eies, 8 Bingh. 181 ; 1 M. & S. 264^ 4 Bing. N. C. 195. 6 Tenny v. Childs, 2 M. & S. 225. ' Morgan v. Bissell, 3 Tauuf. R. 65 ; 13 East, E. 18 ; Morgan v. Powell, 8 Scott, N. R. 687, 700. 8 Doe V. Benjamin, 1 Per. & Dav. 440 ; 9 A. & E. 644 ; 4 M. & Wels. 704. 3 26 LAW OP LANDLORD AND TENANT. [CH I. lease, is in itself a transfer of possession, -whether immediate or in futuro, it is a lease, although it contains a stipulation for execut- ing a subsequent lease. But if the words do not import imme- diate possession, or some act is to be done prior to the entry of the tenant, the inference will be, that the instrument was not intended for a lease, but only as an executory contract. § 44. It is desirable that an agreement for a lease should con- tain a minute of all the covenants and conditions to be entered into by either party, in order to avoid disputes as to what cove- nants the landlord is entitled. Thus, if it is intended that the tenant shall pay taxes or assessments, rebuild the premises in case of fire, or keep them insured, or that he shall not underlet or assign without the landlord's consent, it should be stipulated in the agreement, that proper clauses for such objects shall be con- tained in the lease ; because these things cannot be insisted upon afterwards, unless they are expressly bargained for. No verbal explanations will be permitted to vary an agreement in writing ; for all negotiations between the parties, prior to or contemporaneous with the execution of an instrument, are merged in it, and cannot be reconsidered.^ If an agreement is silent as to what covenants are to be contained in the lease, and expresses only that it is to contain the usual covenants; it means only such as may be exacted, independent of positive stipulation, and are incident to the nature of the contract ; and therefore to be presumed within 'the contemplation of both parties, and such as are calculated to secure the full eifect of the agreement. These words, however, are quite immaterial ; for, in every such agreement, it is implied there shall be usual and proper covenants.^ <§. 45. What are to be deemed usual covenants will generally depend upon circumstances ; often upon the custom, or usage in I Pattison v. Hull, 9 Cow. E. 747 ; Propert v. Parker, 3 Mylne & K. 280. " Wilkins V. Fry, 1 Meriv. R. 263 ; 2 Swanst. E. 249. A contract for a lease, though in one case, in the Exchequer, it was held to embrace a covenant not to underlet or assign, — Polkingham v. Croft, 3 Anst. 709, — has repeatedly received a different construction in the Court of Chancery ; Church v. Brown, 15 Ves. 264, 271 ; 3 Bro. 632 ; though in other cases it has been considered a proper subject for reference and inquiry. Jones v. Jones, 12 "Ves. 190 ; Boardman v, Mostyn, 6 Ves. 471. CH. I.] OP AN AGREEMENT FOR A LEASE. 27 that respect, in the section of the country where the premises are situated ; sometimes upon the nature of the property itself ; but, in every case, it is properly a question of fact for a jury to deter- mine, and not one of law.i Thus it has been held, that a lessor cannot, as a matter of right, demand a covenant of the lessee not to assign or underlet without license ; ^ or not to carry on a par- ticular trade or business on the premises ; ^ or to keep them insured, or to pay taxes.* Nor is it usual for a lessor to covenant to rebuild the demised premises in case of fire, with a stipulation' that the rent shall cease on his failure to do so.^ But a covenant for the lessee's quiet enjoyment, without interruption by the les- sor, or persons claiming under him, is considered usual in all cases. <5> 46. Specific Performance. The mere signing of an agree- ment does not, as we have seen, establish the relation of landlord and tenant, although it creates a right of action for damages for a breach of the contract, or for a specific performance of it. And, although an agreement between an intended lessor and lessee may amount to a present demise, yet if, upon the face of it, a further instrument appears to be necessary to carry the intention of the parties into execution, equity will decree a specific performance of the agreement in that particular.^ But, to call this branch of equitable jurisprudence into operation, the terms and conditions of the intended lease must either be actually expressed, or fairly inferrible ; for, if any material portion of the terms be omitted or left in doubt, the court will regard the transaction as imperfect, and resting in treaty only.'^ As Avhere a tenant in possession pro- posed to pay an increased rent, a bill for a specific execution of the proposal was dismissed, because the period when the increased rent should commence was not agreed upon. So where no men- > Bennet v. Womack, 3 Car. & P. 96. 2 Church V. Brown, 15 Ves. R. 258. 3 Van V. Corp, 3 Myl. & K. 269 ; Ibid. 280 - 282. " Bennet v. Womack, 7 Bar. & Cr. 627 ; S. C. 1 M.an. & Ry. 644. 5 Doe dem. Ellis v. Sandhara, 1 Term K. 705 ; 3 Swanst. E. 685. " Tenner v. Plepburn, 2 Yo. & Col. N. C. V. C. 159. '' Gordon v. Trevelyan, 1 Pri. 64; Verlander v. Codd, 1 Turn. &Euss. 352; 1 Yo. &Col. 82, 441. 28 LAW OF LANDLORD AND TENANT. [CH. I. tion was made of the terms of the proposed lease.^ But where an agreement, uncertain in itself, refers to another written instru- ment, or to a plan forming part of the contract, parol evidence is admissible to identify the writing or plan ; though if such evidence be not clear and satisfactory, specific performance of such an agreement will be refused.^ <^ 47. In seeking a specific performance, the plaintiff must not •only seek to enforce a fair and reasonable contract, but must show that his own conduct, in reference to it, has been fair, and free from suspicion ; for if there be a reasonable doubt upon the trans- action, he will be left to his legal remedy for the non-perform- ance of the contract.^ Thus, where a party acted as if he had abandoned his contract to take a lease, his bill for specific per- formance was dismissed.^ Nor will an agreement to grant a lease be executed in favor of a man, on evidence of his being guilty of fraud, or felony, or on proof of his insolvency.^ So a tenant guilty of waste, or want of good husbandry, whilst holding under an agreement for a lease, will not be entitled to a specific performance.^ § 48. The court will not compel the acceptance of a lease, unless the party seeking the specific performance is able to per- form the contract on his part, by granting a secure lease for the term agreed upon ; and the offer of pecuniary compensation, in case of eviction, will not alter the case ; because such indemnity cannot extend to the specific subject of the contract, the pos- session and occupation of the premises.'^ But where a man con- tracts for the lease of an estate, when he is not entitled to part of it, the contract may be enforced by the lessee, as to the part of which the grantor is owner.' An agreement, however, by a ' Lord Ormond v. Anderson, 2 Ball & Beat. 363 ; Clinan v. Cooke, 1 Sch. S Xef. 22 - 128. 2 Hodges V. Horsefall, 1 Euss. & Mylno, 116 ; 1 Sch. & Lef. 33. 3 riood V. Knlay, 2 Ball & Beat. 16 - 58 ; Harris v. Kemble, 1 Sim. 111. * Garrett v. The Earl of Bessborough, 2 Dru. & Wal. 441. 6 Willingham v. Joyce, 3 Ves. R. 168; Brock v. Hewitt, 3 Ves. K. 253; Buck- land V. Hall, 8 Ves. R. 92 ; 17 Ibid. 313 ; 1 Mylne & K. 312. « Hill V. Barclay, 18 Ves. R. 63. ' Pildes V. Hooker, 2 Meri. 424 ; S. C. 3 Madd. 193. 8 O'Rourke v. Percival, 2 Ball & Beat. 64. CH. I.] OF AN AGREEMENT FOR A LEASE. 29 person out of possession, to grant a present lease to a party, -who is apprized that he cannot obtain possession except by a suit, will not be enforced ; for it is a contract for a lawsuit, which is not a lawful subject of contract, and not an agreement for a demise.^ § 49. As ageneral rule, the specific performance of an agree- ment will only be ordered when it is in writing, and conforms to the statute in all other respects ; but it may be decreed, although not in writing, where it is fully set forth in the bill and confessed by the answer ; ^ or where it has been partly carried into execu- tion, by the performance of such acts as clearly appear to have heen done solely with' a view to the agreement being performed, or such as would operate as a fraud upon the party unless the agreement is fully performed.^ And, in all cases, a plaintiff is expected to exercise due diligence and activity in enforcing his claims ; for an application of this kind, being addressed to the discretion of the court, wUl not be entertained in favor of a person who has long slept on his rights, or acquiesced in a title and pos- session adverse to his claim.* And whether the laches consisted in not prosecuting, or in not commencing a suit, is immaterial. But the doctrine of laches does not apply to a contract in fact executed, by the party's having been in enjoyment of the benefits given him by the contract.^ ■§. 50. If a party has agreed to execute a lease, or other deed, by a certain day, he is not in default until the party who is to receive it, being entitled thereto, has demanded it, and, having waited a reasonable time to have it drawn and executed, has made a second demand. In England, the party entitled to a deed is bound to have it drawn, and presented for execution ; but our law has not gone so far. The party who is to give the deed should have it drawn at his own expense, but is not bound to prepare it until it is demanded ; when it becomes his duty to ' Bagley v. Tyrrell, 2 Ball & Beat. 358. 2 Attorney-General v. Sitwell, 1 Yo. & Col. E. 583 ; 1 Ves. R. 221. = Ante, §§ 33, 34. ■" Moore v. Blake, 1 Ball & Beat. 62 ; 3 Madd. E. 440. * Clarke v. Moore, 1 Jo. & La Tou. 723. 3* 30 LAW OP LANDLORD AND TENANT. [CH. I. execute and perfect it with all reasonable despatch, and hold it ready for deliyery when called for. The lessee may, of course, if he thinks proper, prepare the deed and tender it for execution; and in such case, but one demand is necessary .^ Connelly v. PiercC; 7 Wend. K. 129 ; Fuller v. Hubbard, 6 Cow. 1. CH. II.] OF THE DUTERBNT SPECIES OF TENANCY. 31 CHAPTER II. OF THE DIFFBKENT SPECIES OF TENANCY. Section I. Leases for Life, "§> 51. We have already noticed a material difference between leases for years and leases for a life or lives, in that the latter confer a freehold, while the former amount to a mere chattel inte- rest. More important distinctions are, that an estate for life can- not be made to commence in futuro, nor can it be created by parol ; while a tenant for life, or his representatives, have a right to the emblements, on the determination of the tenancy. Other incidents of this estate, so far as they are appUcable to our sub- ject, and the various particulars by which the law distinguishes freehold interests from chattels real, will be noted from time to time, as we proceed. § 52. An estate for life may be created, either by express limitation, or by a grant in general terms. For where a grant is made by tenant in fee to a man, or to a man and his assigns, with- out any limitation in point of time, this will be taken as an estate for life, and will enure for the life of the grantee, and not of the grantor or other person,^ A grant may be made to one or more persons, to endure for their joint lives or the life of the survivor, as well as for the hfe of a stranger. When it is intended that a lease to two or more persons shall determine on the life of either, the grant should be for their joint lives ; if the interest is to con- tinue to the survivor, it is sufficient to grant it generally for their lives, without inserting words of survivorship ; and, on the death of either, the entire estate will survive to the other. But if the lease be granted for a certain term of years, if the lessees shall ' Co. Lit. 42ja. 32 LAW OP LANDLOBD AND TENANT. [CH. II. SO long live, the interest will determine with the death of one. Where a grant is made, subject to be defeated by a particular event, this, provided there be no limitation in point of time, will ah initio be a grant of an estate for life, as much as if no such event had been in contemplation. As if a grant be made to a man so long as he shall inhabit, or to a woman during her widow- hood ; as there is no certainty that the estate will be put an end to by the change of habitation, or marriage of the respective les- sees, the estate is as perfect an estate for life, until such event take place, as if it had been granted absolutely.^ And when the plaintiff agreed to pay the defendant one hundred pounds per annum during the defendant's life, for which the plaintiff was to have the defendant's lands and negroes, the court held it to be substantially a lease for the life of the defendant, and not a sale, as was contended.^ § 53. Tenants for life may make under-leases, which will pos- sess all the rights and privileges incident to the original estates. And if the original estate determines by the death of the tenant for life, before the day of payment of rent from the under-tenant, the personal representatives of the tenant for life are entitled to recover from the under-tenant the whole or a proportional part of the rent in arrear.^ The under-tenant is also entitled to emble- ments, and to the possession, so far as it may be necessary to pre- serve and gather the crop.^ Section II. Leases for Tears, and from.Year to Year. § 54. Leases may be granted, by express terms, for one or more years, or for any part of a year ; in this latter case, how- ever, the lessee will be treated as tenant for years. The ordinary J Co. Lit. 42 a ; Com. Land. & Ten. 4. ' Mickie v. Ex'rs of Wood, 5 Hand. R. 574 ; Newton v. Wilson, Hen. & Munf. 470 ; Maverick v. Gibbs, 3 McCord, E,. 211. 3 1 R. S. 747, § 22; 11 Geo. 2, c. 19. < Beyans v. Briscoe, 4 Har. & Johns. 139. CH. II,] LEASES FOK TEAKS, AND FROM TEAR TO TEAR, 33 mode of leasing is for a certain specified term of years ; but if no particular period is limited for the duration of the tenancy, it is a tenancy from year to year. This species of lease, where no cer- tain time is mentioned, according to the strictness of the ancient law, continued during the pleasure of the parties only, and might be put an end to at any time by either party ; the lessee, in such case, being called a tenant at will. But it was early determined, upon principles of justice and policy, that estates at will were equally at the will of both parties, and neither of them was per- mitted to exercise his pleasure contrary to equity and good faith. - The lessor could not determine the estate after the tenant had sown, and before he had reaped ; so as to prevent the necessary egress and regress to take away the emblements,^ Nor could the tenant, before the period for the payment of rent arrived, deter- mine the estate so as to deprive the landlord of his rent.^ § 55, Since the time of the Year Books, a general occupation has been held to be an occupation from year to year, and the tenant cannot be turned out of possession without reasonable notice to quit.^ And such tenancy is not determinable, even at the end of the current year, unless a regular notice to quit is served by the party, intending to dissolve the tenancy, upon the other ; and, therefore, unless such notice is regularly given, a tenancy will run on from year to year, until some event happens, which, in contemplation of law, will destroy it.* This rule applies to the tenant as well as to the landlord; if, therefore, a man takes possession of premises, he is bound to retain them for one year ; because until then the proper notice cannot have expired. Even if he gives up the premises, and lets them to an under-tenant, the landlord may still look to him for the rent, unless he accepts the in-coming tenant ; but, if he receives rent from the new tenant, he will be deemed to have made his election to accept him as tenant,^ ' Jackson v. Bradt, 2 Caines, E. 169. ' Kighly V. Bulkley, 1 Sid. 348. ' Jackson v. Bryan, 1 John. R. 322; 9 Ibid. 267; 8 East, 165. '- Eowan v. Lyttle, 11 Wend. R. 616; Jackson v. Salmon, 4 Wend. R. 327; Jackson v. Aldrich, 13 Johns. R. 109 ; Right v. Darby, 1 Term R. 162 ; Clayton V. Blakely, 8 Term R. 3. 5 Den V. Mcintosh, 4 Iredell, 291 ; 8 Car. & P. 729. 34 LAW 01" LANDLOED AND TENANT. [CH. II. "Ji 56. A person who holds strictly as tenant at will, or by suf- ferance, on payment of rent, which is accepted as such by the owner, becomes tenant from year to year ; but without such pay- ment, or an agreement to pay, it would seem that the tenancy at will continues to subsist.^ For where three persons entered under a lease for seven years, not signed by the lessor, and therefore inoperative under the statute of frauds, payments of rent being made, but not shown to be with the assent of one of the three ; it was held that, as against her, there was no evidence of a tenancy from year to year, she not having resided a year on the premises ; the court declaring that, under the original contract, no demise could be created, but a mere tenancy at will ; and that, in order to constitute a new tenancy, it must be shown that all the par- ties agreed to vary it by a new contract, for a tenancy from year to year.^ § 57. A demise, by a tenant from year to year to an under- tenant, is, in legal contemplation, a tenancy from year to year, during the continuance of the original demise to the intermediate landlord.^ But where there was an agreement to become tenant at a certain rent per quarter, and to find security for paying one quarter's rent in advance, as long as the tenancy lasted ; it was held to be a quarterly tenancy, and not one from year to year.* The result is the same if a party has been put into possession pend- ing a treaty for a purchase or a lease, or under a lease or agree- ment which is void.^ And in general, whenever the original entry is lawful, and it subsequently becomes unlawful by breaking off the negotiation or otherwise, the tenancy, though strictly at will, is, for all purposes of notice to quit, a tenancy from year to year,^ and entitles a landlord to sue for rent upon a quantum valebat, although no distress can be made.^ 1 Eowan v. Lyttle, supra; Nichols v. "Williams, 8 Cow. R. 13; Mann v. Love- joy, E. & M. 355 ; Doe v. Walter, 7 Term E. 478 ; 5 Bingh. E. 485 ; 7 Ibid. 458 ; Lesley v. Randolph, 4 Eaw. 123. » Doidge V. Bowers, 2 Mees. & "Welsh. 365 ; 1 "Wils. E. 175; 4 Term E. 680. = Pike V. Evans, 4 M. & E. 661 ; 9 B. & C. 909. 4 "Wilkinson v. Hall, 4 Scott, 301 ; 3 Bing. N. C. 508. ' Jackson & Ostvander v. Eowan, 9 John. E. 330 ; Den v. McShane, 1 Green, E. 95 ; 4 T. E. 680 ; 1 B. & C. 448 ; 2 D. & E. 565. 6 Bradley v. Covel, 4 Cow. E. 344 ; Doe dem. Newhy v. Jackson, 1 B. & C. 448. ' Hamerton v. Stead, 5 D. & R. 206 ; 3 B. & C. 478. OH. II.] LEASES AT WILL. 35 § 58. Where the landlord suffers the tenant to remain in pos- session after the expiration of the original tenancy, receives rent, and thereby establishes a new tenancy, the law presumes the hold- ing to be upon the same terms, and subject to the same rent, and to all the covenants contained in the original lease, so far as they are applicable to the new condition of things.^ Thus, if there has been in the lease a covenant for a particular mode of husbandry, and, after the expiration of the lease, the tenant holds over and pays rent, the landlord may compel him to perform such cove- nants, in the same manner as if they were still expressly agreed upon between them.^ And the tenant's liabiUty will continue on the original lease, notwithstanding an undertaking on his part to pay a larger rent. As where he had covenanted to repair and insure in his lease, and, after the lease had run out, he agreed to pay a larger rent ; the premises being accidentally burned down, the court held him bound to rebuild, and that the advance of rent made no difference, the terms of the old lease being in fact incorporated with the new contract.^ We have seen that it is not until after the payment and acceptance of rent, (the term having expired,) that the tenant becomes tenant from year to year ; for, until then, a tenant holding over is strictly a mere tenant at will, at the same rent he previously paid.* Section III. Leases at Will. § 59. Leases at will may be created by express terms, or may arise by implication of law. Formerly all leases for uncertain periods were held to be tenancies at will merely. If a termor granted the land generally, the grantee was but tenant at will ; as it did not appear that the grantor meant to pass his whole inte- rest, an estate at will was held to satisfy the grant.^ But in more > Salisbury v. Hale, 12 Pick. E. 416 ; 8 D. & R. 35. ' Doe dem. Jordan v. Ward, 1 H. Bl. E. 94 ; E. & M. 55 ; 12 Ad. & EI. 476. = Digby V. Atkinson, 4 Campb. 275 ; 5 Mees. & Wels. 100. * Bishop V. Howard, 3 D. & E. 293; 2 B. & C. 100. * Griffin's Case, 2 Leon. 78. 36 LAW OF LANDLOKD AND TENANT. [CH. 11. modern times, the courts have evinced a disposition to construe tenancies of this description into tenancies from year to year ; ' in fact, the general language of the books now is, that the former species of tenancy cannot arise, without an express agreement to that effect.^ § 60. Notwithstanding this disposition, however, tenancies at will do still subsist ; for a person who holds rent free by permis- sion of the owner, or who enters under an agreement to purchase, or for a lease, but has not paid rent, is held to be a tenant at will.^ So a parol gift of lands is said to create this species of tenancy.* And if the agreement be to let the premises so long as both parties choose, reserving a compensation to be paid daily, and not referable to a year, or to any aliquot parts of it, it does not create a holding from year to year, but a tenancy at. will.^ So a man, who enters under a void lease and pays rent, is a tenant at will ; ^ and where a party enters into the possession of premises under an agreement to accept a lease for twenty months, and sub- sequently refuses to accept the lease, he becomes, by such refusal, a tenant at will, or by sufferance, and may be ejected imme- diately. But if the landlord subsequently accepts rent from the tenant monthly, according to the original agreement, a tenancy from month to month is created, commencing from the time of entry.' And if a tenant, whose lease has expired, is permitted to continue in possession, pending a treaty for a further lease, he is not a tenant from year to year, but so strictly at will, that he may be turned out of possession without notice.^ But a notice to quit will terminate this tenancy, and turn it into a tenancy from year to year.^ And if no certain term is agreed upon, or the > Doe dem. Hull v. Wood, 14 Mees. & "Wels. 682. 2 Nichols V. Williams, 8 Cow. R. 75 ; 4 Iredell, 291 ; Sulliran w. Enders, 3 Dana, E. 66 ; 3 Burr. 1609. 3 Eegnart v. Porter, 7 Bingh. E. 451 ; Doe v. Miller, 5 C. & P. 595 ; 7 M. & W. 226; 12 Mass. 325. ■• Jackson v. Sogers, 1 Johns. Cas. 33 ; Jackson v. Bradt, 2 Caines, Cas. 169. ^ Eichardsou v. Langrade, 4 Taunt. E. 128. " Dem V. Feamside,. 1 Wils. 176; Doe dem. Martin, 7 Term E. 83; 5 Esp. E. 501 ; 1 Term E. 90. 1 Anderson v. Prindle, 23 Wend. E. 616. 8 Jackson dem. Clinch v. Miller, 7 Cow. E. 747 ; Jackson v. Moncrief, 5 Wend E.26. s Bradley v. Coyel, 4 Cow. E. 349. CH. II.] LEASES AT WILL. 37 tenant holds over hj consent, either express or implied, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period for its termination ; and, in either case, is construed to be a tenancy from year to year.^ § 61. The reservation of an annual rent is the principal crite- rion of distinction between tenancies from year to year and at will ; and, in the absence of more direct evidence of the actual periods of reservation, payment and the acceptance of rent, at particular times of the year, are equivalent to an actual reservation on those days, and admissible to prove the nature of the tenancy.^ So an acknowledgment of the existence of an arrear of half a year's rent, is admissible for the same pur- pose.^ § 62. This tenancy may be determined by either party, at any time ; but if the rent be payable quarterly, and the lessor deter- mine his will after the commencement of a new quarter, he will lose the rent that may be due for that quarter, and the lessee will be entitled to the emblements.* So if the lessee determines his will before the end of a quarter, he must pay all the rent of the quarter in which the tenancy is determined.^ It may be termi- nated either by the express declaration of the parties, or by impli- cation of law. Of this latter description will be, the death of either of the parties ; acts of ownership exercised by the landlord, — such as entering and cutting timber, making partition, or tak- ing a distress for rent ; ^ or his aUenatibn of the reversion.^ So if the tenant commits an act of voluntary waste, sells or transfers his interest to another, deserts the premises, or in any other way discontinues his lawful possession, he puts an end to this tenancy. 1 Jackson v. Salmon, 4 Wend. K. 327 ; Webber v. Shearman, 3 Hill, N. Y. K. 547 ; Bennock v. Whipple, 3 Fairf. 346. ^ Knight V. Bennet, 3 Bing. 361 ; 2 Esp. 718. > Cox V. Bent, 5 Bing. 185. * Leighton v. Theod, 1 Ld. Eay. 707. "* Bowe's Case. Aleyn, 4. 6 Kising V. Stannard, 17 Mass. 284 1 Doe dem. Bennett v. Turner 9 M. & W. 226 ; S. C. 9 M. & W. 643. ' Ball V. CuUimore, 1 Gale, 96 ; 5 Tyr. 753. 4 38 LAW OF LANDLORD AND TENANT. [CH. II. Such a tenant has, of course, no certain, indefeasible estate, nor any interest ■which he can transfer to another.^ § 63. At common law, neither a tenant at will or by sufferance was entitled to notice to quit before he could be ejected, although a demand of possession was always required. Yet, even the words, " Unless you pay what you owe me, I shall take imme- diate measures to recover possession of the property," addressed to the tenant by the party entitled to the fee, have been held a sufficient determination of his will, and equivalent to a demand of possession, so as to maintain ejectment.^ The Revised Statutes of New York, however, require a formal notice of thirty days in either case, before a tenant can be proceeded against. The case of a purchaser, who is put into possession of the premises under an agreement to sell, also forms an exception to the rule above stated ; for he cannot be ejected without a formal notice to quit.^ But where, in such a case, it was agreed that, if the purchaser did not pay the residue of the purchase-money on a certain day, he should forfeit the instalment already paid, and should not be entitled to an assignment of the lease ; it was held to operate as a clause of reentry, on a breach of covenant in a lease ; and that the vendor might maintain ejectment, without either demand of possession or notice to quit.* Section IV. A Tenancy at Sufferance. § 64. A tenancy by sufferance happens when a man comes into possession by lawful title, but holds over by wrong, after the determination of his interest. He has only a naked possession, stands in no privity to the landlord, and, independent of the ' Philips u. Covert, 7 John. R. 1 ; Doak v. Donnelson, 2 Yerger, R. 249 ; War- ner V. Page, 4 Vermont R. 291 ; Chandler v. Thurston, 10 Pick. R. 209. 2 Doe dem. Price v. Price, 9 Bing. R. 356 ; 2 Moore & Scott, 464 ; Ellis v Paio'e 1 Pick. R. 47. " ' 5 Right V. Beard, 13 East, 210. ' Doe V. Sayer, 3 Camp. 8; Jones v, Chambelaine, 5 Mees. & Wcls. 14. CH. II.J A TENANCY AT SUFFERANCE. 39 statute, is not entitled to notice to quit, or liable to pay rent.^ For he holds by the laches of the landlord, who may enter and put an end to the tenancy when he pleases. But, before entry, the landlord cannot maintain trespass against such tenant, as against a stranger ; for, being once in by lawful title, the law will suppose the continuance of such a possession, unless the owner, by some public act, like entry, declares his continuance wrong- ful. If he comes into the estate by act of law, and not by an act of the party, he is not a tenant at sufferance, but is considered an intruder, abator, or trespasser.^ § 65. If a tenant for years surrender, and then holds over, he will be either a tenant by sufferance or a disseisor, at the election of the landlord.^ So an under-tenant, who is in possession at the determination of the original lease, and is permitted by the rever- sioner to hold over, is quasi a tenant at sufferance.* A tenant at will, we have seen, acquires possession by the consent of the owner ; and, if such consent can be inferred from any act of the landlord, a tenant at sufferance will become a tenant at will, or from year to year, according to circumstances.^ As in the case of a tenant for years holding over, if the lessor receives rent, or the lessee be permitted to continue on the land for a year, the tenancy by sufferance will be turned into a tenancy from year to year.^ But where a tenant holds over on the determination of an estate for years, or a person selling lands agrees to deliver them up on a particular day, and afterwards refuses and continues in possession, he is, in either case, considered a tenant at sufferance.^ 1 Co. Lit. 270, b ; Jackson v. Parkhurst, 5 Johns. E. 128 ; Jackson v. McLeod, 12Johns. R. 182. 2 2 Black. Com. 150 ; Co. Lit. 57, b ; 2 Inst. 134. "* Pennington v. Morse, Dyer, 62, a. * Simpkin v. Ashurst, 4 Tyr. 781 ; 1 Crom. E. & Eos. 261. 5 Rowan u. Little, 11 Wend. R. 619. " Doe dem. Hollingsworth v. Stennett, 2 Esp. N. P. C. 716. ' Wilde V. Chautillon, 1 Johns. Cas. 123 ; Hyatt v. Wood, 4 Johns. R. 150. 40 law op landlord and tenant. [ch. ii. Section Y. Demise of Lodgings. § 66. There is another species of tenancy, called lodgings, which occurs when only part of a messuage or tenement is let to another. Being a contract for an interest in lands, it is within the statute of frauds, and must, therefore, be in writing, in all cases where the statute requires a lease to be in writing.^ And where the plaintiff took a house, partly furnished, at a certain rent, and the defendant agreed to send in all other necessary fur- niture within a reasonable time, it was held that the defendant's agreement to send in the furniture was an inseparable part of a contract for an interest in land, and ought, therefore, to be in writing.^ But a contract with the keeper of a hotel, or boarding- house, for board and lodging, paying separate prices for each, whether it be by the week or year, creates no relation of land- lord and tenant between the parties ; for the lodger acquires no interest in the real estate, the contract being entire, for board and lodging.^ § 67. Lodgers are entitled to all the privileges of tenants ; and if a man takes lodgings on the first or second floors of a house, he has a right to the use of the door-bell, the knocker, the sky-light of the staircase, and the water-closet, unless it is otherwise stipu- lated at the time of taking the lodgings ; and, if the landlord deprive a lodger of the use of either, an action lies.* Pie is also, in general, subject to the same liabilities as other tenants ; and is not justified in quitting his apartments without proper notice, even from a fear, however reasonable, that his goods may be seized for his landlord's rent.^ If a house is divided into several apartments, with an outer door to each apartment, and no communication with each other subsists, the several apartments are considered in law ' Edge V. Stafford, 1 Crom. & Jer. 391 ; 1 Stark. 12. ' Mechelea v. Wallace, 2 Nev. & Per. 224 ; 7 Ad. & El. 49. ^ Wilson V. Martin, 1 Denlo, R. 602. ■■ Underwood v. Burrows, 7 Car. & Pay. 26. " Rickett V. Tullick, 6 Car. & P. 66. CH, II.] DEMISE OF LODGINGS. 41 as distinct mansion-houses ; but, if the owner lives in the house, all the untenanted apartments will be considered as parts of his house. And the question, what shall be deemed the mansion- house of the party, turns upon the fact of there being an outer door or not. Thus, chambers in Inns of Court and in cottages, which have each of them an outer door that opens upon the com- mon staircase, have been held, in cases of burglary, to be the houses of the respective occupants. But this privilege extends only to the purposes of protection for a man and his family ; a bailiff, therefore, in the execution of mesne process, may break open the door of a lodger, having first gained peaceable entrance at the outer door of the house.^ ' Tracey v. Talbot, 6 Mod. R. 214; 1 Hawk. P. C- 163, U5; 1 Cowp. K. 1. 42 LAW OF LANDLORD AND TENANT. [CH. in. CHAPTER III. THE DURATION OF A TENANCr. Section I. The Commencement of a Lease. § 68. At common law, livery of seizin, or an actual manual tra- dition of the land, was necessary to complete erery grant of an estate of inheritance, or for life only ; although it was not required on a lease for years, or other mere chattel interest. This distinc- tion, however, has been abolished in most of the States, and a simple delivery of the deed substituted in place of it ; from which time, therefore, all grants, whether for life or years, now take effect. In leases for years, indeed, an actual entry is still neces- sary to vest the estate in the lessee ; for the bare lease gives him only a right to enter, or an interesse termini. When he enters in pursuance of that right, he is then, and not before, in posses- sion of his term, and complete tenant for years. In reference, however, to the obligations of the parties, and regarding the lease as a contract, if the time from which it is to commence does not otherwise appear, it will be understood as commencing from the time the papers are dated ; but if not dated, then from the time they were delivered. If there are no writings, the tenancy will be considered as commencing from the day the tenant enters into possession, and not with reference to any particular quarter day.i § 69. A receipt for rent, up to a particular day, is prima facie evidence of the commencement of the tenancy at that' day. And if a tenant enters in the middle of a quarter, and afterwards pays rent to the beginning of a succeeding regular quarter, from which time he pays half-yearly, his tenancy commences from the quarter > Churcli V. Gilman, 15 Wend. E. 656 ; Co. Lit. 46, a; Jackson dem. Giiswold V. Bard, 4 Johns. K. 230 j Kemp v. Derrett, 3 Camp. 511, CH, in.] THE DURATION OF A TENANCY. 43 day to which he paid up.i But where a tenant, under a written lease, continues to hold after the expiration of his tenancy, and assigns to another, the new tenancy will be held to commence at the time the original lease commenced, although the assignee came in on a different day.^ Notice to quit on a particular day is no evidence of a holding from that day.^ And when the pre- mises contained in a demise consisted of a dwelling-house and other buildings, used for the purpose of carrying on a manufac- ture, a few acres of meadow and pasture lands, together with all watercourses, &c. ; and the tenant held under a written agree- ment for a lease, to commence, as to the meadow, from the 25th December then last past ; as to the pasture ground, from the 25th March then next ; and as to the houses, mills, and all the rest of the premises, from the 1st of May ; the court held that the sub- stantial time of entry was the 1st of May, because the principal subject of the demise was the house and buildings for the purpose of the manufacture, to which every thing elsa in the demise was merely auxiliary.* >§> 70. An estate for life needs nothing to express the time at which it is to commence, because it cannot, at common law, com- mence in futuro ; nor can its duration be ascertained. But it is of the very essence of a term of years to be fixed and deter- mined ; and, therefore, unless some certain beginning or event is referred to, by which the period of its commencement may be ascertained, it will be void for uncertainty.^ But a lease, to com- mence or terminate on a contingency which must happen, is valid ; for then its duration is made certain.^ Thus, a lease from the day of the lessor's death until the 1st of May, 1629, was held to be good for so much of the term as remained after the lessor's death.^ ' Doe dem. Holcomb v. Johnson, 6 Esp. E. 10. > 2 Per Ld. Ellenborongh, in Doe dem. Castleton v. Samuel, 5 Esp. N. P. C. 174. " Doe V. Foster, 13 East, 40,5. ■* Doe dem. Bradford v. Watkins, 7 East, E. 551 ; Steel v. Mast, 4 B. & C. 272 4 B. & A. 588. ' 1 Prest. on Est. 201 ; Bac. Abr. Leases, (L.) 3. ' Goodright v. Eichardson, 3 Term E. 462. The day fixed in the lease, on which the tenant is to have possession of the premises, is so much of the essence of the contract, that, if the lessor refuse to give the lessee possession on that day , the latter may abandon the contract. Spencer u. Burtqn, 5 Black. (In.) E. 57. ' Child V. Bayley, Cro. Jao. 459, 44 LATT OF LANDLORD AND TENANT, [CH. IH. There is no objection, however, to a term of years commencing from a day which is past; and, in that case, the lease takes effect, in point of computation, from that day, but, in point of inte- rest, from the delivery.^ § 71. As to an impossible and uncertain date, there appears to be a nice distinction taken in the books ; that, if a lease be made to begin from an impossible date, — as from the 30th day of February, — it takes effect from delivery. But where the limitation is uncertain, — as a lease made the 10th of October, to hold from the 20th day of November, without saying what No vember is meant, — the lease is void ; because the limitation is part of the agreement, and the court cannot determine it, not knowing the terms of the contract.^ So where a lease was dated 25th March, 1783, to hold from the 13th March now last past, and it was proved that the deed was not executed until some time after date ; it was . held that the term commenced on the 25th March, 1783, and not on the 25th March, 1782.3 But though there appears to be no certainty of years in the lease, yet if, by reference to a certainty, it may be made certain, it is sufiS.- cient.* § 72. A demise to A. B., his heirs and assigns, for such term of time as he pays rent, — he, on his part, covenanting for him- self and his heirs to pay rent and perform covenants, — is a per- petual lease ; and can only be terminated by the mutual agree- ment of the parties, or till the lessor shall elect, on default of the lessee to pay rent and perform the covenants, to consider it for- feited.6 § 73. When an estate for years is made to commence at a day to come, or on the happening of a particular event, it is, in either case, called an interesse termini, or a right to the possession of a .term at a future time. And such a demise is valid ; for, being a ' Moore v. Hussey, Hob. 18 ; Enys v. Donnithome, 2 Burr. 1192. " Bac. Abr. Leases, (L.) 1. ' Steels V. Mast, 6 Dow. & Ry. 392 ; 4 B. & C. 272, * Shep. Touch. 272. " Folts V. Huntley, 7 Wend. K, 210. CH. III.] THE TERMINATION 01 A LEASE. 45 mere chattel interest, it was never required to be created by feoff- ment and livery of seizin.^ But an estate for life, -whether it lie in livery or in grant, cannot begin at a day to come, because the freehold may not be placed in abeyance.^ And, therefore, since no estate of freehold can commence in futuro, a lease to com- mence after the death of the lessor, or after the death of the les- see for life, is, not good, unless there be some subsisting estate, which fills the intermediate space.® If a term of years is granted in possession, and a second lease is made, to commence at the expiration of the existing lease, no reversion will pass by the second deed, nor will the second lessee be entitled to any interest under it, except a mere interesse termini, and the lessor will con- sequently be entitled to the rent reserved by the first lease, and may distrain for it as any other reversioner.* Section II. The Termination of a Lease. § 74. Terms were originally of short duration ; and Lord Coke states that, by the ancient law of England, they could not exceed forty years, for the reason that, if leases could be made for a longer period, men might be disinherited. This law, however,, had become antiquated even in his day, and was soon after abo- lished altogether .s There is now no limitation to a term of years, either in England or the United States, except in the State of New York, in reference to a particular species of lease. The con- stitution of that State, adopted in 1846, provides that no future lease of lands, for agricultural purposes, shall be valid for a longer period than twelve years. § 75. The continuance of a term of years constitutes an essen- tial part of the contract, and must be ascertained with certainty ; ' Winter «. Loveday, Com. R. 39. » 1 Prest. on Est. 117 ; 2 Black. Com. 314 ; Singleton v. Bremar, 4 McCord, 12. » 1 Prest. on Est. 231 ; Neale v. Lower, Pollexf. 55. < Smith V. Day, 2 Mees. & Wels.' 684. * Co. Lit. 45, bj 46, a; 9 Mod. R. 101. 46 LAW or LANDLORD AND TENANT. [CH. III. otherwise the lease Tvill create but a tenancy at -will, If it be not ■ffbolly void. As if it be to bold until a child, then unborn, shall be of full age ; this will constitute but a tenancy at will, because of the uncertainty that the child will ever arrive at that age.^ The duration of a lease may, however, be defined, either by an express enumeration of years, by reference to a certainty, or it may be reduced to a certainty by matter ex post facto. If it is intended to grant a term for years, so as to be dependent for its continuance upon the duration of a life, it must be granted for a stated term of years, if the life shall so long continue ; thus, for the term of ninety-nine years, if a certain person shall live so long ; for there the utmost limit of the term is marked out, sub- ject to a sooner determination on a collateral event. It cannot be granted for so many years as that person shall live ; nor for so many years as he shall continue parson of Dale ; nor to him for sixty years, and, in case he shall die within the term, then to another person for so many of the years as shall be unexpired at the decease of the first. But it may be granted to a man for life, and a subsequent lease may be granted to another for sixty years, to commence after the decease of the first, or to commence imme- diately and run in computation of time concurrently with the first term, subject to postponement, as to possession, until the decease of the first person.' A grant for the life of one not in existence ^ is void ; but if for the lives of A. B. and C, and there should be no such person as C, it is good for the lives of A. and B.^ § 76. The duration of a lease may also be defined with refer- ence to a certainty ; as, for instance, to another lease already in existence. As a lease to A., for so many years as B. has in the manor of Dale ; here if B. has ten years, A. will take a term of the same extent. But when a reference of this kind is made, it must be to a thing which has express certainty at the time the lease is made, and not to a mere possibility or casual certainty. As if a lease is made for so many years as a man shall continue parson of Dale ; this cannot be made certain, for nothing can be 1 Bishop of Bath's Case, 6 Co. E. 35. 2 Shep. Touch. 274 ; "Wright dem. Plowden v. Cartwright, 1 Burr. 282 ; S. C. 1 Ken. 529; 1 Co. 155, a. 3 Doe V. Edwards, 1 Mees. & Wels. 533. OH, III.] THE TERMINATION OP A LEASE. 47 less certain than the time of his death or the period of his ceasing tobe parson.^ So if a grant be made, by one possessed of a lease for forty years, to B., for so many of the years as shall be unex- pired at the time of the grantor's death, the lease is void ; but it is otherwise if the owner of the term demises the land for a cer- tain number of years to commence after his death.^ § 77. A term may also be rendered certain by matter ex post facto. Thus it may be granted for so many years as A. B. shall name ; and the lease, though uncertain at the beginning, will be valid ab initio after the naming of the years.^ A demise, " not for one year only, but from year to year," constitutes a tenancy for two years at least, and is not determinable by a notice to quit at the expiration of the first year.^ Or if a man makes a lease for years, without saying how many, it is "good for two years ; for more than this there is no certainty, and for less there can be no sense in the words.^ Ip the city of New York, if no time is agreed upon as to its duration, it is a lease to continue until the first day of May next after possession under such agreement shall commence ; and the rent under it is payable at the usual quarter days for the payment of rent in that city, unless otherwise expressed in the agreement.^ § 78. It was originally understood, that a lease commencing from the day of date began to operate the day after the date ; ^ but modern English cases unsettled this rule, and it was then con- strued to be either exclusive or inclusive, according to the pre- sumed intention of the parties, or the circumstances of the case.^ The American authorities include the day of demise, in comput- ing the time of its continuance ; but this construction is used, not by way of computation, but of passing an interest. When there is nothing else to guide the construction, that one is assumed > Bishop of Bath's Case, ante; 6 Cr. 34, b ; Co. Lit. 45, b. » The Eector of Chedington's Case, 1 Co. 153, a ; T. Eaym. 27. 3 Goodright v. Richardson, 3 Term K. 463. ' Den dem. Jackliu v. Cartrlght, 4 East, E. 29. 5 Bac. Abr. Leases, (L.) 3. « 1 E. S. 744, ^ 1. 7 Co. Lit. 46, b. " Pugh V. Duke of Leeds, Cowp. E. 714 ; Lester v. Garland, 15 Ves. E. 248. 48 LAW OF LANDLORD AND TENANT. [CH. III. ■which is most beneficial to him in whose favor the instrument is made.^ But generally in computing time /row or after a certain day, that day is excluded with us, unless it appears that a differ- ent computation was intended.^ In New York, a lease from the first day of May in one year, to the first day of May in the suc- ceeding year, was held to be exclusive of the first day ; but the rule was said to be unsettled, and the case appears to have been decided in reference to the usage of Albany, by which a lease commences and terminates at twelve at noon on the first of May.^ The general rule, however, in England is declared to be, that where a computation of time is to be made from an act done, the day when such act is done is to be included.* § 79. According to the English statutes, a parol demise for more than three years operates as a tenancy at will; but their courts have decided that such tenancy, or any other tenancy created without limitation of time, (except where there is an express agreement to hold at will,) is to be considered as a tenancy from year to year ; and that the statute only intended, that a parol agreement for a longer period than is authorized by the statute, should not operate as a term.^ Our decisions are to the same effect ; and in New York, if there be an agreement for more than one year, but not reduced to writing, and the tenant enters into possession of the premises, the agreement itself is void, and he holds possession simply as a tenant from year to year.^ If possession is not taken under such an agreement, it is void alto- gether ; neither party can have any rights or remedies under it. And if a party enters into possession without any agreement at all, it is a general taking from year to year.'^ This rule, however, has been held inapplicable to the case of lodgings.^ ' Blake v. Crowiiingshield, 9 N. Hamp. K. 304 ; Lysle v. WiUiams, 15 S. & R. 135 ; Donaldson v. Smith, 1 Ash. 197. ^ Bigelow V. Wilson, 1 Pick. R. 485 ; Arnold v. United States, 9 Cranch, 104 ; Jacobs V. Graham, 1 Black. 392. 3 Wilcox V. Wood, 9 Wend. E. 346. ■* Glassington v. Rawlins, 3 East, R. 407 ; 4 Nev. & M. 375 ; Doug. E. 463 ; 3 Term R. 623. 6 Clayton v. Blakely, 8 Term R. 3. " Schuyler v. Leggett, 2 Cow. E. 660; People v. Eiekert, 8 Cow. R. 226. ' 8 East, R. 165; 4 Taunt. 128. 8 3B. &C. 88; 4D. & R. 693. CH. III.] THE TERMINATION OF A LEASE. 49 § 80. Though an agreement may be void under the statute, or the lease only operate to create a tenancy from year to year, still it is to be regulated by the agreement as to the amount of rent to be paid, the time when the tenant is to quit, and in every other respect except its duration.^ Yet if the old rent is merely a ground rent, and the landlord is entitled to the buildings erected by the tenant, a different rule prevails as to rent, for the landlord is entitled to the annual value of both land and buildings.^ But unless the rent is specified to be an annual rent, the tenant is not precluded from proving the actual value of the premises ; as in the case of an agreement to pay a fixed sum for a certain period less than a year.^ "J" 81. If the duration is left optional by the terms of the lease, ■without saying at whose option, — as, for instance, if a lease be .made for seven, fourteen, or twenty-one years, — it means at the option of the tenant, who has the right of choosing whether he will put an end to the lease at the end of seven years, or continue it for fourteen or twenty-one years.* And, in all cases of uncer- tainty, the tenant is most favored by law, because the landlord, having the power of providing expressly in his own favor, has neglected to do so ; and on the principle, also, that every man's grant shall be taken most strongly against himself.^ § 82. It was formerly held that the effect of a lease " from year to year, so long as both parties please," was, to create, a tenancy for at least two years ; ^ but this case was recently over- ruled in the Court of Queen's Bench, by a decision'^ that a tenancy from year to year lasts only so long as both parties please, and that it is determinable by either party, at the end of the first or any other year, by giving the usual notice to quit at > Doe dem. Bigg v. Bell, 5 Term R. 471 ; Patrick v. Balls, Carth. 390; Brad- ley V. Covell, 4 Cow. R. 350 ; Abeel v. Radcliffe, 15 Johns. R. 507. 2 15 Johns. B. 505. ' Evertsen v. Sawyer, 2 Wend. R. 507. * Dan V. Spurrier, 3 Bos. & Pul. 399 ; Goodright u. Richardson, 3 Term E. 462 ; 9 East, 15; 4 M. & S. 30. « Webb V. Dixon, 9 East, 15 ; Folts v. Huntley, 7 Wend. R. 214. • King V. Argand, Cro. Eliz. 775. ' Doe dem. Clarke v. Smarridge, 9 Jurist, 781. 5 60 LAW OF LANDLORD AND TENANT. [CH. III. the end of that year ; unless, in the creation of the tenancy, the parties introduce provisions showing that they contemplated a tenancy for two years at least. But where the words were, " for one year from the date hereof, and so on from year to year, until the tenancy hereby created shall be determined, as after men- tioned," with a subsequent proviso that it should be lawful for either party to determine the tenancy, by giving three months' notice to the other ; it was held that the tenancy was not deter- minable by a notice expiring before the end of the second year, for the court considered the language of the contract clearly con- templated a term to continue longer than one year.' Where a lease is made determinable before its regular expiration, at the option of the lessee, on giving six months' notice, it is advisable for the lessor to make that option conditional, upon payment of rent due to the period of determination, and the performance of the lessee's covenants ; for otherwise the tenant might put an end to the lease, leaving the charges upon the property unpaid, and the premises in a dilapidated state. But, by adopting this pre- caution, the qualification will amount to a condition precedent, and exclude the tenant from the benefit of the provision without a strict compliance with the terms imposed.^ § 83. As a general rule, a deed which will not convey all that is intended will be construed to convey all that it was in the power of the grantor to convey.^ And our law, therefore, may be considered as extending the English rule, which held, that if a man has power to lease for ten years, and he leases for twenty, the lease is bad at law but good in equity for the ten years, ope- rating as an execution of a power.* So a devise of lands to au executor, for the payment of the debts of the testator, or until his debts are paid, or a particular sum is raised, will create an estate for so many years only as are necessary to raise the required sum.^ But no man may grant a lease to continue beyond the period at which his own estate is to determine ; therefore a tenant > Doe dem. Chadbum v. Green, 9 Ad; <& El. 658. ' Porter v. Shepherd, 6 Term R. 665. = Law V. Hempstead, 10 Cora. E. 23 ; Martin v. Sterling, 1 Hoot, R. 210. * Roe V. Prideaux, 10 East, E. 158 ; 1 Burr. 120. 6 Corbet's Case, 4 Rep. 81, b; 1 P. Wms. 509-518. CH. III.] THE TERMINATION OF A LEASE. • 51 for life cannot make a lease to continue after his death.' Yet a lease made under a power may continue, notwithstanding the determination of the estate, by the death of the person by whom the power is exercised.^ Aiid in all such cases, although the demise may be void as a lease for years, it will still operate as a lease at will, or from year to year, and the instrument be given in evidence, as proof of the amount of rent to be paid, and the other terms on which the lands are held. 1 Robie V. Smith, 21 Maine K. 114. ^ 2 Bol. Abr. 261, pi 10; Co. Lit. 219. 52 LAW OF LANDLORD AND TENANT. [CH. IV. CHAPTER IV. THE CONTRACTING PARTIES. § 84. All persons seized or possessed of lands or tenements may grant leases for a time commensurate with their respective interests, except such only as are under some legal disability, whom the law supposes incapable of entering into any contract. The Revised Statutes of New York declare, " every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise, or purchase." And, , " every person capable of holding lands, (except idiots, persons of unsound mind, and infants,) seized of or entitled to any estate or interest in lands, may alien such estate or interest at his pleasure, with the effect, and subject to the restrictions and regulations pro- vided by law." ' If a lessor is in possession at the time of making the lease, he will be deemed to have the right of possession, as to all persons holding under him ; but, without the actual possession, he cannot make a valid lease, for a bare right of entry is but a chose in action, and is not assignable.^ But if he is in actual pos- session, though tortiously, — a mere disseizor, — such possession will enable him to make a lease, which can only be avoided, upon eviction, by one having paramount title .^ § 85. Possession is of so much importance to the validity of a lease, that the lawful owner of the fee cannot make a good lease when he is out of possession. And if a disseizor wishes to make a lease of land of which he is disseized, he can only deliver it as an escrow, to take effect after he enters or recovers possession. Such a deed will not operate before entry, further than to transfer the lessor's right of entry, to take effect after his entry.' But a ' B. S. 719, §5 8, 10. s Isham v. Morrice, Cro. Car. 109; 1 R. S. 739, § 147. ' Bac. Abr. Leases, (I.) 4; Lee v. Norris, Cro. Eliz. 331; Thurston's Case, Owen, R. 16; 1 Rep. a (147, a). * Doe V. Watts, 9 East, 19 ; Jennings v. Bragge, Cro. Eliz. 446-483 ; Co. Lit. 48, b. CH. IV.] THE CONTKACTING PARTIES. 63 lessee for years, as having an interesse termini, may make a lease of part, or an assignment of the whole of bis term, before he enters on the demised premises.' And if a man dies, and his heir taakes a lease of the land descended to him before entry, this is a good lease, for he is seized in law, though not in fact. But if a Stranger had entered, and abated into the land, and then the heir had made the lease, it would have been bad, for it would have been after a disseizin.' The possession of a tenant for life is not adverse to the remainder-man, and hence the latter may make a valid lease, notwithstanding such possession.^ § 86. Possession, however, will follow ownership, unless there is an adverse possession. At common law, indeed, no interest in land could pass from a vendor, before he had himself obtained livery of seizin ; but, by force of the statute of uses, the possession was transferred to the use of the cestui que use, who may now, therefore, in case there is no adverse possession, make a lease for years without actual "entry.* And, as a general rule, if there is a reversion in the lessor at the time of making the lease, it will be a good charge upon the reversion ; and take effect, in interest and possession, if the reversion happens to be reduced into pos- session during the period limited by the contract for the enjoy- ment of the land, the lessor being estopped, by his own deed, from saying that he did not demise the premises.* § 87. Although a lessor may have no title to the land he under- takes to demise, or be a disseizor, his lease will operate by way of estoppel if he comes into possession, by purchase or descent, at any time before the expiration of the term.® Estoppels, it is said, are not much favored, for the reason that they tend to shut out ' Plowden, 133 - 142 ; Co.l-it. 46, b; Cro. Jac. 60. ' Shep. Touch. 269. 3 Grout ii. Townsend, 2 Hill, N. Y. R. 554. ■• Bellingham v. Alsop, Cro. Jac. 52 ; Ibid. 408; Cro. Eliz. 216. * Mitford w. Fenwick, And. 288; Moor, 284; Cro. Jac. 168; Cro. Eliz. 140. It has been held in Pennsylvania, that a purchaser at a sherift's sale, who has not received his deed, cannot make a valid lease. Hall v. Benner; 1 Pa. E. 402. * Jackson v. Murray, 12 John. K. 201 ; Sinclair v. Jackson, 8 Cow. E. 543; 16 John. K. 110, 201 ; Cooke v. Brown, 5 Pike, R. 693; Co. Lit. 47, 227; Ld. Ray. 729 ; Webb-w. Austin, 8 Scott, N. R. 419 ; S. C. 7 Mann. & Gr. 701. 5* 54 LAW OF LANDLORD AND TENANT. [CH. IV. evidence ; and, as a general rule, are not to be admitted, if, by any construction, they can be avoided. There will, consequently, be no estoppel if some interest actually passed by the lease, though, the interest purported to have been granted is really greater than the lessor had, at the time, power to grant. As if a lessee for the life of B. makes a lease for years, and then purchases the reversion in fee, after which the cestui que vie dies ; the lessor may avoid his lease, though several of the years therein expressed are still to come ; for he may confess and avoid the lease, which took effect in point of interest, and determined on the death of B.i So if two join in a lease, and one only has any interest in the premises, it enures by way of confirmation from the other, and not by way of estoppel.* • § 88. An estoppel cannot operate after the estate of the lessor is determined ; for it begins by, and, therefore, terminates with the lease.^ But where a lease for years cannot take effect imme- diately, by reason of a prior lease of the sams premises, the second lease will operate presently by estoppel, for so much of the term as may be left after the determination of the former, by way of passing an interest.* A grantor by deed is always estopped from saying he had no interest, unless he is a trustee for the public, deriving his authority from an act of the legislature.^ But if it appears, from recitals in a lease, that he had nothing at the time of the demise, and he afterwards purchases the land, it will not enure to the lessee by estoppel.^ He is, however, estopped from contending thafcjbp had merely an equitable estate when he granted the lease.'' § 89. On the other hand, a lessee, by executing a lease, is estopped from disputing the title of his lessor,* though he may > Leicester v. Rehoboth, 4 Mass. R. 180 ; Ibid. 273 : Co. Lit. 47, b ; Ventr. 358. ' Brereton v. Evans, Cro. Eliz. 700. 3 Jackson v. Ayres, 10 John. R. 224; Brudnell v. Roberts, 2 Wils. E. 143; 8 Term R. 487 ; 4 Ibid 682 ; Cro. Eliz. 700. * Hilman v. Hoie, Carth. 247; S. C. 1 Salic. R. 275. 5 Fairtitle v. Gilbert, 2 Term E. 169. ' Hermitage v. Tomkins, 1 Ld. Eay. 729. ' Green v. James, 6 Mees. & Wels. 656. 8 Carpenter v. Thompson, 3 N. Hamp. 204 ; Wood v. Day, 1 Moore, 389 ; 7 Taunt. 646. CH. IV.] LEASES BY ESTOPPEL. 55 show that such title has expired ; ^ and is not estopped, by a description of the land in a lease, from showing that what was there called meadow was not, in point of fact, such.^ An assignee, also, is estopped by the deed which estops his assignor ;2 and by executing an assignment, in which the original lease is recited, he is precluded, in an action by the assignor, from calling upon him to prove the lease.* But although a lessee may main- tain an action of covenant against his lessor on a lease by estop- pel,^ the same privilege does not extend to his assignee.^ Nor will an estoppel bar the lessee beyond the duration of the interest derived by him under the lease. Therefore, if a man take a lease for years, by deed indented of his own hand, it is no conclusion beyond the term, at the end of which the lessor may enter and occupy the land ; for, by the determination of the term, the estop- pel, is also determined.' § 90. AH estoppels, however, must be reciprocal and mutual, for, as the whole estate is created by estoppel, both parties, must be bound or neither ; if, therefore, a man takes a lease for years of his own land, from an infant or feme covert, it will work no estoppel, because infants or femes covert, by reason of their disa- bility to contract, are not estopped, nor shall the lessee for the want of mutuality.® This rule, requiring reciprocity in cases of estoppel, necessarily requires that the lease shall be by indenture and not by deed poll ; for both lessor and lessee must be bound, or neither.® The indenture must also be executed by both par- ties, — an indenture executed by the one and not the other being equivalent to a deed poll ; though, for this purpose, a lease exe- cuted by the lessor only, and a counterpart by the lessee, are con- 1 Jackson v. Eowland, 6 Wend. R. 666 ; Neave v. Moss, 1 Bingh. 360 ; 7 Ad. & EI. 157 ; 2 Nev. &. Per. 123. « Skipwith V. Green, 1 Stra. 610; 3 Danv. 272; 8 Mod. K. 3U. 5 Taylor v. Needham, 2 Taunt. 278 ; 7 Term R. 488. - Nash V. Turner, 1 Esp. 217. ' Style V. Hearing, Cro. Jac. 73. * Awder v. Nokes, Cro Eliz. 373-436. ' 4 Co. 54, a; James v. Landon, Cro. Eliz. 36. 8 The Welland Canal v. Hathaway, 8 Wend. R.9; Ibid. 480; Co. Lit. 352; Boiling V. Mayor, 3 Rand. 563 ; Doe dem. Leeming v. Skinner, 2 N. & P. 123 ; 4 M. & S. 485 ; 2 B. & A. 278. « Co. Lit. 363, b ; Pike u. Eyre, 9 Bam. & Cress. 909 ; S. C.4Man.&Ky. 661. 56 LAW OF LANDLORD AND TENANT. [cH. IT. sidered as one indenture.^ For a similar reason, a stranger can neither be bound by or take advantage of an estoppel, the rule being confined to privies in blood or estate.^ <5i 91. But an estoppel is not confined -wholly to the parties to the lease ; for it is annexed to the estate, runs with the land, and is binding on all persons claiming under them. The heir of the reversion being privy in blood, and taking the estate subject to the burdens imposed on his ancestor, is bound where that ances- tor, leaving no estate in the premises, or only a contingent remainder, made a lease by indenture and afterwards purchased the fee of the land demised, and died.^ The heir, however, will not be bound, unless he claim the land from him who created the estoppel ; for, if he purchase the reversion himself, or if it devolve upon him by descent from another ancestor, he will not be bound.* Nor will he be bound, unless the estoppel would have operated upon the inheritance in the hands of his ancestor; and, therefore, if tenant for life make a lease for years, and afterwards purchase the reversion and die within the term, his heir may enter ; for a freehold being a greater estate than any term of years, the decease of the tenant for life, out of whose estate the lessee's interest arose, is the regular period appointed by law for the determination of the lease.^ Privies in estate are also bound ; for if a man make a lease, by indenture, of property to which he has •no title, and afterwards, becoming its owner in fee, dispose of it to another, the purchaser will be estopped from disputing the lease.^ "^ 92. An estoppel may also be by matter in pais, though not in writing, — as by livery, entry, acceptance of rent, or the ■ Hill u. Saunders, 9 Bar. & Cr. 534; S. C. 2 Bing. 112; 1 Car. & P. 80 ; Cord- well V. Lucas, 2 Mees. & Wels. HI ; Wilson v. ■Woolfryes, 6 Mau. & Sel. 341. 2 Jackson v. Brinkerhoff, 3 Johns. C. K. 101 ; Berlin v. Norwich, 10 J. R. 229 ; Brainiree v. Hingham, 17 Mass. R. 432 ; 6 Pick. R. 455 ; Cro. Eliz. 37, 700. ' Webb V. Austin, 8 Scott, N. R. 419 ; S. C. 7 Man. & Gr. 701 ; Neal v. Lower, PoUexf. 54; Co. Lit. 352, a. * W. Jo. 460; Goodtitle dem. Faulkner v. Morse, 3 Term R. 371. = Freport's Case, 6 Co. 15, a ; Co. Lit. 47, b ; 8 Term R. 487 ; Carvick v. Bla- grave, 1 Br. & B. 531. ' Trevivian v. Lawrence, Holt, 282 ; Webb v. Austin, supra. CH. IV.] LEASES BY INFANTS. 57 like ; ^ for where a person assents to an act, and derives title under it, he cannot afterwards be permitted to impeach it.^ But when the estoppel is by matter in pais, it is determined by the ceasing of the act which created the estoppel, although it is other- wise of an estoppel by matter of record.^ And in all cases where a party claims to establish his right by estoppel, the instru- ment on which he relies must be clear, precise, and unequivocal, and not depend upon inference.* It must also be specially pleaded, and cannot be taken by inference ; ^ if, however, the instrument be not under seal, and operates by way of estoppel and not as a technical estoppel, it cannot be pleaded, but must be given in evidence, under the proper issue joined in the case.® Section I. Leases hy Infants. § 93. A minor cannot make a lease that will bind him when he arrives at full age ; "' the rule being now well settled in this coun- try, that all contracts (except for necessaries) made by an infant, including his deeds and all other instruments under seal, are void- able.* But if he makes a lease rendering rent, it will bind the adult party until the minor chooses to avoid it.^ If he ratifies it, on coming of age, — as by receiving rent that accrues after that period, or the like, — he confirms the lease.^" > Springstein o. Schermerhorn, 12 Johns. E. 357 ; Co. Lit. 352. s Dezell v. Odell, 3 Hill, N. Y. E 215 ; Eex v. Stacy, 1 Term R. 4. 3 James e. Landon, Cro. Eliz. 36, 700 ; Co. Lit. 47, b. * Eich V. Hotchkiss, 16 Day, E. 409 ; Lajoy v. Priman, 3 Miss. 529. s Lansing v. Montgomery, 2 Johns. E. 382. « Davis V. Tyler, 18 Johns. E. 490. ' Eoof V. Stafford, 7 Cow. E. 179 ; 1 Nott & McCord, E. 1 ; 1 N. H. E. 74 ; 11 Johns. E. 539. A rent-charge granted by an infant is voidable only. Hudson V. Jones, 3 Mod 310. 8 Bool w. Mix, 17 Wend.E.lI9; Eagle Fire Co. w. Lent, 6 Paige, E. 635 ; Per Story, J. in 10 Peters, E. 71 ; Wheaton v. East, 5 Yerger, Teun. E. 41 ; 13 Mass. E 237; IN. H. E. 73. » Zouch V. Parsons, 3 Burr. E. 1794 ; Stafford v. Eoof, 9 Cow. E. 626 ; Walms- ley V. Lindenberger, 2 Eand. E. 478; 1 Mason, 82; Goodscl v. Myers, 3 Wend. E. 479; 4 McCord, E. 229 e; Brown v. Caldwell, 10 S. & E. 114. >" Smith V. Low, 1 Atk. E. 489 ; Brown.w. Caldwell, 10 Serg. & Eaw. 114 ; Co. 58 LAW OF LANDLORD AND TENANT. [CH, IV. 4> 94. Very slight acts and circumstances are sufficient to show the infant's assent, after his majority ; a verbal confirmation of his deed is sufficient ;^ and in fact the authorities seem to author- ize the statement of the rule to be, that no distinct act of confirmar tion is necessary, but that all the voidable contracts of an infant are binding upon him, unless there be an express disaffirmance of it on his part, on his coming of age.^ The rule has been well stated in a Connecticut case, where, after a full discussion of the subject, it was held there are three ways of affirming the voidable contracts of an infant, when he arrives sit full age : 1; By an express ratification; 2. By acts which reasonably imply an af- firmance ; 3. By his omission to disaffirm within a reasonable time. 3 § 95. None, however, but the infant himself, or his legal repre- sentatives, can avoid a lease. Being a personal privilege, intended for his benefit, he is, while living, the exclusive judge of the pro- priety of exercising it, and, when dead, those alone should inter- fere who legally and personally represent him ; * and the burden of proof rests on him alone, even though the issue be upon a rati- fication of his contract after he came of age.^ For this reason, mere privies in estate cannot avoid his lease. ^ § 96. As to Infant Lessee. Although a lease made to an infant is equally voidable with one made by him, it is not abso- lutely void unless, perhaps, it be clearly prejudicial to his inte- rest ; he will still be liable for the use and occupation of the pre- mises in which he resides. As a general rule, he is liable for all necessaries ; and although this is a relative term, depending upon his situation in life, lodging comes clearly within this descrip- Lit. 308, a; 1 Kol. 730; Smith v. Bowin, 1 Mod. E. 25; Warwick r: Brttfce, 2 M. ,& S. 205 ; 4 Leon. 4. ' Houser ». Reynolds, 1 Hayw. 143. " Zouch V Parsons, supra ; Holmes v. Blogg, 8 Taunt. R. 35 ; Jackson v. Car- penter, 11 Johns. R; 539 ; Jackson u. Burehin, 14 Johns. R. 124; Curtis v. Patten, 11 Serg. & Raw. 305 ; 4 McCord, 241 ; 9 Verm. 365. 3 Kline v. Beebe, 6 Conn. R 494 ; Worcester v. Eaton, 13 Mass. R. 371. * Jacksonj). Todd;6 Johns.R. 25; Oliver!;. Hondlet, 13 MaSs.R. 237 ; Roberts V. Wiggih, 1 N. H. R. 93 ; Hartness v. Thompson, 5 Johns. R. 160. * Greenleaf on Evid. ^ 362; Jeune d. Ward, 2 Stark. R. 326. * Hoyle V. Stow, 2 Dev. & Bat. 323. CH. IV.] BT PERSONS OF UNSOUND MIND. 59 tion.^ And where an infant rented a house, and exercised his trade as a barber therein, it was held to be properly left to the jury to decide, whether it came within the meaning of the term necessaries.^ If, after his full age, he continues in possession of lands demised to him during his minority, he affirms the lease ; and he must make his election to avoid the lease within a reason- able time after he attains his full age. It belongs to a jury to determine what is a reasonable time, under the circumstances of each particular case ; but an acquiescence of four months after majority, has been held to preclude an infant from afterwards dis- affirming a lease.8 Section II. By Persons of Unsound Mind. ^ 97. Idiots and lunatics being void of understanding, and con sequently unable to give the deliberate assent necessary to the validity of a contract, are, on principles of humanity as well as of justice, restrained from making any contract '; * but previous or subsequent lunacy will not vitiate a contract entered into during an interval of sanity.' Mr. Justice Story, in his Commentaries on Equity Jurisprudence, lays it down as a general principle, tha^t the contract of any person who is non compos mentis, — from age, imbecility, or other personal infirmity, — is absolutely void.^ But the cases do not seem to apply this rule to the execution of a deed, for the deed of a person who is non compos mentis is only void if he be under guardianship ; but if he is not under guard- ' Hands v. Slaney, 8 Term R. 578. ' Lowe V. Griffiths, 1 Hodges, 30 ; 1 Seott, 458. = Doe V. Smith, 2 Term R. 436 ; Holmes v. Blogg, 8 Taunt. R. 35 ; S. C J. B. Moore, 466. * Faulder v. Silk, 3 Campb. 126; Seaver v. Phelps, 11 Pick. R. 304 ; 4 Cow. R. 417 ; Dane v. Kirkwall, 8 C. & P. 679. An idiot is one who is a natural fool, or one a nativitate. A lunatic is one who has become non compos mentis by the visita- tion of God. * Jackson v. King, 4 Cow. R. 207 ; Johnson v. Moore, 1 Littell, Ky. R. 371 ; Owen V. Davis, 1 Ves. R. 82. 6 1 Story, Eq. Jur. § 222. 60 LAW OF LANDLORD AND TENANT. [CH. IV, ianship it is only voidable, and may become void according to cir- cumstances.' § 98. Mere weakness of mind is not, of itself, a sufficient ground for avoiding a contract, unless some stratagem or fraud is resorted to by the person in whose favor it is made ; for if a man be legally compos mentis, he is the disposer of his own property, and his -will stands a reason for his actions.^ Thus, if an illite- rate person is induced to sign a deed, by a misrepresentation of its nature and contents, such deed, being obtained by fraud, is void ; ^ but if he did not request it to be read to him, and no false representation of its contents was made to him, it will not be avoided merely on the ground of his ignorance.* Even a person who is deaf and dumb from his birth, having, however, sufficient intellectual capacity to comprehend the nature of his acts, is not legally incapable of executing a deed ; and although its contents are not fully communicated to him, for the want of sufficient signs, it. will be sufficient if he knew he was making a conveyance of his estate.* Yet if, by fraud and misrepresentation, a lease different from the one directed to be prepared be imposed upon a blind man for execution, he may afterwards treat it as a nullity.^ Per- sons deaf, dumb, and blind from their nativity, labor under an absolute incapacity .^ ^ 99. Nor does old age, simply, incapacitate a person from granting a lease. Fraud and imposition would, of course, defeat it, but the mere circumstance of age is not a sufficient ground from which to presume imposition ; for, as Mr. Justice Buller observed in the case quoted, we have seen the greatest abilities displayed at a greater age than seventy-five.^ So a lease made ' "Wait V. Maxwell, 5 Pick. K. 217 ; Webster v. Woodford, 3 Day, E. 90. 2 Dods V. Wilson, Const. K. 448 ; Jackson v. King, 4 Cow. R. 218 j Jenkins, &c., Monroe, E. 328; Osmond v. Titzroy, 3 P. Wms. 129; S. C. Eq. Ca. Ab. 186, pi. 8; 2 Atk. 251. 3 Jackson v. Hayner, 12 Johns. E. 469; White v. Small, 2 Ca. in Ch. 105. < Hallenbeck v. Dcwitt, 2 Johns. E. 404. 6 Brown v. Brown, 3 Conn. E 299 ; Co. Lit. 42, b; Shutter's Case, 12 Co. 90, a. ^ Shutter's Case, supra ; 2 Co. 3, a, and 9, a. ' Co. Lit. 42, b ; Com. Dig. (Capacity.) D, 4. - Lewis V. Pead, 1 Ves Jr. 19. CH. IV.J BY PERSONS OF UNSOUND MIND. 61 by a party under duress is not void, but voidable only by him when he recovers his free agency ; but he cannot avoid it under the plea of non est factum, for it is his deed at the time of action brought. He can only avoid it by a special plea.^ § 100. If a person is in an extreme state of intoxication, so as to be deprived of the exercise of reason, a lease obtained from him, while in that condition, is absolutely void.^ This, however, is an extension of the old rule of law on the subject, which was, that it was only in cases where an unfair advantage had been taken of a drunken party, or contrivance or management was resorted to for the purpose of drawing him into drink, that equity would relieve him.^ The old jurists, in fact, held, that a man was not to be relieved at all from a contract which he had made while drunk.* But the modern doctrine, concurring with all the civil law writers, now is, that a contract made under such circumstances is void. Under a plea of non est factum, tlnerehve, a defendant will be permitted to give in evidence that he was made to sign the deed, when he was so drunk that he did not know what he did.^ The decisions of some of our southern courts, however, would make the contract of an intoxicated man voidable only ; and not to be avoided, if his assent is afterwards given when he becomes sober.^ But it is admitted that the evidence of complete and total drunk- enness ought to be clear and satisfactory.'^ ' Whelpdale's Case, 5 Co. 119, a; 2 Co. 9, b; 5 B. & Ad. 8. By duress is meant that degree of severity, either threatened and impending or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. Greenl. on Evid. § 301. ' Prentice u. Achorn, 2 Paige, R. 31 ; Barrett v. Buxton, 2 Aiken, Verm. K. 167 ; Pitt V. Smith, 8 Campb. 33; Fenton v. HoUoway, 1 Stark. 128; Cooke v. Clay- worth, 18 Ves. 16; In re Ann Eynch-, 5 Paige, R. 120. Where a person, for any considerable part of his time, is intoxicated to such a degree as to be deprived of his ordinary faculties, it is primd facie evidence that he is incapable of managing his affairs, or of making a contract. In the Matter of Tracy, 1 Paige, R. 582. " Cory V. Cory, 1 Ves. 19; Cragg v. Holme, 18 Ves. R. 14; 1 Fonb. Eq. 67 ; 1 Mad. Ch. 303 ; Gove v. Gibson, 11 Mees. & Wels. 623. ^ 4 Co. R. 125; 3 P. Wms. 130. 6 Cole V. Robbins, Bui. N. P. 172 ; 1 Stark. 126. " Remicker v. Smith, 2 Har. & Johns. R. 423 ; Arnold v. Hickman, 6 Munf. E. 15; Williams v. Inabert, 1 Bailey, R. 343. ' Adm'r of Lee v. Ware, 1 Hill, S. C. R. 316. 62 LAW OF LANDLORD AND TENANT. [CH. IV. Section III. By and to Married Women. <5. 101. The free agency and ability to contract of a married woman being entirely suspended during marriage, she is incapa- ble, without the concurrence of her husband, of making a valid lease of lands, of which they are seized in her right, or of which she is possessed in her own right. Her separate deed, being absolutely void, does not admit of confirmation ; and it is only when made under a power contained in a settlement authorizing such acts, that her individual leases will be sustained. The hus- band has sole dominion over his wife's lands, with a right to lease and take the rents and profits during his life.^ But as to such lands in which the wife was possessed of a chattel interest only, the husband has an exclusive and absolute disposing power, as against his surviving wife ; though, on his failing to dispose of them in his lifetime, they, will belong to his widow in preference to his personal representatives.^ If he die before her, he cannot pass them by his will ; but, if he survives her, they become his own absolute property.^ His power of leasing her freehold estates is also restricted to the continuance of a demise, made by himself alone, beyond the period of their joint lives, unless he becomes entitled as tenant by the curtesy ; in which case the lessee may remain in possession during the remainder of the term, subject to a sooner determination by the death of the lessor.* § 102. His lease therefore of her lands will only bind her dur- ing the lifetime of her husband, for after his death, she may con- firm or avoid it at pleasure. But until she avoid it by entry, > Jackson v. McConnell, 19 Wend. E. 175 ; 2 Root, R. 369 ; Co. Lit. 46, bj 351, b ; Mauby v. Scott, 1 Sid. 120 ; Zouch v. Parsons, 3 Burr. 1805 ; Cro. Eliz. 446. 2 Drace v. Denison, 6 Ves. 394; Wildman v. Wildman, 9 Ves. 177; Cro. Eliz. 33-278. 3 Co. Lit. 300, a, b; 351, a. * Dixon V. Harrison, Yaugh. 46 ; Miller v. Maynewaring, "W. J. 354 ; S. C. Cro. Car. 397. CH, IV.] BY AND TO MARRIED WOMEN. 63 it will stand good.^ The acceptance of rent by lier which has accrued since the death of her husband, will be deemed evidence of its affirmance.2 But a mere verbal lease, by husband and wife, of her lands, or a written lease to which she is not a party, is void as to the wife, and cannot be affirmed by her assent after the death of the husband, for her consent at the commencement of the term, must appear by deed.^ § 103. The common law, held every conveyance of a feme covert, absolutely void, except when done by matter of record, as by a fine and recovery : and even then, unless her husband was a party to the record, he might avoid it. But this mode of con- veyance is now abolished by the English statutes, and has never been in force in New York. The colonial acts of 1771 recite that femes covert had been in the habit of conveying land by deed and not by fine, and confirm such conveyances, but declare that for the future, no estate of a feme covert should pass by deed, with- out her previous private acknowledgment before a magistrate that she executed the deed freely without any fear or compulsion of her husband ; since then the deed of a feme covert, executed according to the statute, has always been sufficient to pass her real estate, or any interest therein.* The Revised Statutes have reenacted the former statute, and further declare, that if a wife resides out of the State, she may unite with her husband, and con- vey any of her real estate situated within this State, as if she were sole, and the acknowledgment, or proof of her execution may be as if she were sole. ' Doe V. 'Weller, 7 Term K. 478 ; Jackson v. HoUoway, 7 Johns. E. 81 ; Brown V. Lindsay, 2 Hill, S. C. R. 544 ; Jordan v. Wikes, Cro. Jac. 332 j Ibid. 417 - 563. " Worthington v. Young, 6 Ohio E. 313; 2 Sannd. E. 180. 3 Turney v. Sturges, Dyer, 91 b; Walsal v. Heath, Cro. Eliz. 656; Jackson v. HoUoway, supra. A recent law of New York has made a very important altera- tion of the common law, in respect to the right of a married woman to control her separate estate, giving her power to convey any interest or estate therein at plea- sure, as if she were unmarried. In that State she may now, no doubt, make valid leases of lands acquired by her subsequent to the passage of the law, but her dis- ability to make contracts would invalidate any covenants that she may insert in such a lease. Laws of New York, 1847, p. 528. » Grout V. Townsend, 2 Hill's (N. Y.) R. 554 ; Bool v. Mix, 17 Wend. R. 119 ; Jackson v. Gilchrist, 15 Johns. R. 89 ; 7 Mass. R. 291 ; 4 Verm. R. 414 ; Albany Ins. Co. V. Bay, 4 Comst. E. 9. 64 LAW OP LANDLORD AND TENANT. [CH. IV. § 104. The right of a married TTOinan to execute conveyances or leases of her real estate, provided they are duly acknowledged, is now understood to prevail generally throughout the United States.^ But she cannot, either separately or jointly with her husband, execute a valid power of attorney for either purpose ; since the statutes which give her a right to convey by deed, do not authorize her to delegate such right to another.^ For similar reasons she will not be bound by an agreement to lease or by any covenant contained in a lease either at law or in equity.^ § 105. The same reasons which prevent a married woman from making a lease, will also disqualify her from assuming the respon- sibilities of a lessee. A feme sole may be a lessee ; but if she afterwards marry, her responsibilities in that character will de- volve on her husband, who will be liable, as well after his wife's death as before, to an action for arrears of rent, although the lease may have expired.* But a married woman is not incompe- tent to take a lease, nor is the express assent of her husband necessary, for the estate vests till he dissents.^ She may, how- ever, avoid it after his decease.^ And if she occupies a house, her husband will be liable for rent accruing during her occupa- tion ; and the landlord can have no personal remedies against her by virtue of such occupation, either separately or jointly with her husband.'' § 106. In the case of Lord St. John v. Lady St. JoJm,^ Lord Eldon declared the rule of law to be, that no act of the wife can > Thatcher v. Omans, 3 Pick. R. 521 ; Davey v. Turner, 1 Ball. K. H ; "Wat- son V. Bailey, 1 Einn. R. 470 ; Fowler v. Shearer, 7 Mass. K. 14 ; Gordon v. Hay- wood, 2 N. H. R. 402 ; Manchester r. Hongh, 5 Mason's R. 67 ; Lithgow v. Kave- nagh, 9 Mass. R. 172; Jackson v. HoUoway, supra. ' Sumner v. Conant, 10 Verm. R. 1 ; Lane v. McKean, S Shepley, R. 304. 3 Jackson v. Vanderheyden, 17 Johns. R. 167 ; Martin v. Dwelly, 6 Wend. R. 1 ; 5 Day, 492 ; 2 Hill, N. Y. R. 554 ; 3 Greenl. 50; 3 Blackf. R. 201. * Vane v. Minshall, 1 Lev. 25; S. C. T. Raym. 6 ; 6 Mod. 239. ' Swaine v. Holman, Hob. 204; Co. Lit. 3 a. » Co. Lit. 3 a. ' Rotch V. Miles, 2 Conn. E. 638 ; Kimball v. Keyes, 1 1 Wend. R. 33 ; Edwards V. Davis, 16 Johns. R. 281 ; Hatchett v. Baddeley, 2 Wm. Bl. 1079; Marshall v. Button, 8 Term R. 545. 8 11 Ves. E. 529. CH. IV.] BY AND TO MAKKIED WOMEN. 65 render her liable to be sued as a feme sole ; and this is under- stood to be the law generally in this country.^ And it will make no difference, as to this disability of a married woman, that she is at. the time living separate and apart from her husband ; or that she has a separate maintenance secured to her ; or that she has eloped, and is living in a state of adultery ; or even that she is separated from her husband by a decree of divorce a mensd et thoro ; for nothing short of a divorce a vinculo matrimonii will restore her ability to contract. ^ But if her husband is a non- resident alien ;^ or becomes civilly dead ; is imprisoned for life, or a term of years ; her disability is suspended during such period, and her capacity to contract is restored.* § 107. Lord Mansfield, in a previous case, had introduced a principle of the civil law, that a woman living apart from her hus- band on a competent maintenance, might contract as a. feme sole;^ which, although it was directly overruled by the above cases, has, to some extent, been adopted in the States of New York, Pennsyl- vania, and South Carolina. Thus, in New York it was held, that if a wife live apart from her husband on a separate maintenance, which he pays, he will not be answerable for necessaries furnished her,^ while in the latter States she is allowed to act as a feme sole trader, and become liable as such. And the principle of these latter cases might, perhaps, in those States, authorize her agree- ment to pay rent, and assume the responsibilities of a lessee, under similar circumstances.'^ ' 2 Kent's Com. 161. ' Marshall v. Button, supra; Lean v. Shute, 2 Wm. Bl. 1079, 1195; Hyde v. Price, 3 Ves. Jr. 443 ; Lewis v. Lee, 3 B. &. C 291 ; 6 M. &. S. 73. 3 Gregory v. Paul, 15 Mass. R. 31; Abbot v. Bailey, 6 Pick. E. 89 ; 1 B. & P. 357. ■• Ibid. ; Hatchett v. Baddely, supra. * Corbett v. Poelnitz, 1 Term R. 5. « Baker v. Barney, 8 Johns. R. 92. ' Burke v. Wrinkle, 2 Ser. & E. 189; Newbiggln v. Pillans, 2 Bay, E. 162. 66 LAW OF LANDLORD AND TENANT. [CH. IV. Section IV. By a Tenant for Years or for Idfe. § 108. Not only has an owner of the soil a right to make a lease, but Ms tenant, so long as his interest lasts, has also a right to underlet to any person he may think proper, without consulting the landlord ; for while his interest in the premises continues, he has the absolute disposition of it, unless some agreement subsists between him and the landlord that Umits his power to do so.^ And such derivative lessee may be compelled by his immediate landlord to pay rent, and perform covenants, according to the terms agreed upon in the first grant, although he is not liable to the origin.al "lessor for the rent reserved on the first lease, since there is uo' such privity between him and the original lessor, as there is between a lessee and assignee.^ § 109. An under-lease vests only a partial estate in the under- lessee, a reversion being left in the lessor, the duration of which is immaterial, for it may be a year, a day, or an hour. If rent is reserved, the lease need not contain a power of distress, for such power is incident to the demise at common law.^ But as no pri- vity exists between the under-lessee and the original lessor, the covenants entered into between the latter and the original lessee, though they be covenants running with the land, as to pay rent, or repair, cannot affect the under-lessee personally.* The land, however, is not discharged by the under-lease, from the claims of the original lessor, who, notwithstanding the under-lease, may proceed to distrain or evict, if rent be in arrear, or a forfeiture is incurred by his lessee.^ But an assignment transfers the whole interest of the lessee to the assignee ; and if the whole interest is iConveyed, the essence of the deed, as an assignment, will not be destroyed, by its reserving a rent to the assignor, and a power of 1 Jackson v. Harrison, 17 Johns. E. 66. ' Jackson v. Davis, 5 Cow. K. 129. = Co. Lit. 141 b. 142 a; Curtis v. Wheeler, 1 Mood. &Malk.493. * Holford V. Hatch, 1 Doug. 183; Earl of Derby v. Taylor, 1 East, 502; Doe dem. Wyatt w. Byron, 1 Man. 6r. & Scott, 623-626. ^ Amsby v. Woodward, 6 Bar. &. Or. 519 ; S. C, 9 D. ^ B. 536. CH. IV.] BT A TENANT FOR YEAKS, OK FOE LIFE. * 67 reentry for non-payment ; ^ or by its assuming, by the use of the word demise, or in any other respect, the character of a lease. An assignee is personally liable upon the covenants ■which run with the land, and the premises still remain liable to a distress for rent.^ § 110. A lessee, on granting an under-lease, can only protect himself from the consequences of a breach by the under-lessee, of the covenants contained in the original lease, by taking from the sub-lessee covenants corresponding to those contained in that lease, or a covenant of indemnity against such breach.^ A pru- dent under-lessee, will stipulate for a clause, to protect him from paying his rent, till his lessor produces the superior landlord's receipt for the chief rent ; with a further provision that if the chief rent be not paid when due, the undjer-ies^e naa^^^5ay^t to the superior landlord in discharge of his own mit "^ 111. A tenant from year to year cannot, by way of under- lease, convey any interest exceeding his own in point of duration; and his demise from year to year will operate only during the continuance of the original tenancy of the intermediate landlord.^ But it is said that the interest of the under-lessee cannot be defeated by the mesne lessee's surrendering his estate in the pre- mises to the lessor ; nor can the under-lessee's interest be deter- mined by the original lessor's giving him a notice to quit. Such notice must be given, either by such lessor to his lessee or by the mesne lessee to the under-lessee.^ A tenant from year to year, who underlets from year to year, also requires such a reversion as will entitle him to distrain for rent in arrear.^ If a tenant for a term of years underlets part of the premises from year to year, > Palmer v. Edwards, 1 Doug. 187, n.; 2 Barn. & Aid. 168. " Hicks V. Dowling, 1 Ld. Eay, 99 ; Parmenter v. Webber, 8 Taunt. 593 ; S. C. 2 T. B. Mo. 656. ' Perley v. Watts, 7 Mees. & Wels. 601 ; Walker v. Hatton, 10 Mees. & Wels. 249. * Roe dem. Gregson v. Harrison, 2 Term R. 425. " Pike V. Eyre, 9 Bar. & Cr. 909; S. C. 4 M. & R. 661 ; Oxley v. James, 13 Mees. & Wels. 209. « Pleiisant dem. Hayton v. Benson, 14 East, 234 ; Co. Lit. 338, b. ' Curtis V. Wheeler, 1 Mood. & Malk. 493 ; Oxley v. James, supra. 68 LAW OF LANDLOBD AND TENANT. [CH. IV. and, at the expiration of the term, agrees with the lessor to hold on from month to month ; in the absence of any new agreement between the tenant and under-tenant, a tenancy from year to year will continue between them.^ § 112. A lease at will, from year to year, or for years, made by a tenant for his own life or that of another, unless authorized by an express power, must terminate on the death of the lessor in one case, or of the cestui que vie in the other ; for no man can confer on another a larger estate than he himself possesses.^ The lease of a mere tenant at will is therefore void ; having no certain interest to dispose of, the very act of letting to a stranger becomes a determination of his will. Neither can he surrender any more than he can grant ; for to surrender would be to determine his will and relinquish his estate.^ § 113. As tenants for life cannot make leases to continue for a longer period than their own lives, it follows that, where a tenant by the curtesy or in dower makes a lease for years, the lease is absolutely determined by his death, and no acceptance of rent, by the heir or the reversioner, can confirm it. Their lessees holding over, unless recognized by the succeeding owner as tenants from year to year, are merely tenants by sufferance.* But if the remainder-man has encouraged an expenditure by the lessee on improvements, in confidence of his continuing tenant ; or has suf- fered him to rebuild, and does not, by his answer, deny that he had notice of the lessee's proceedings, he will be prevented from controverting the lease.^ A subsequent acceptance of rent, with an acknowledgment of a tenancy, may, however, amount to a new demise by the remainder-man, the lessee being a mere tenant at ■ Pierse v. Sharr, 2 Man. & Ey. 418. ' Ex parte Smyth, 1 Swanst. 355 ; Symons v. Symons, 6 Madd. 207 ; Simpson V. Butcher, 1 Doug. 50 ; Doe dem. Potter v. Archer, 1 B. & P. 531 ; 3 Madd. K. 375 ; Co. Lit. 47, b. 3 Moss V. Gallimore, Doug. 283 ; Cro. Eliz. 156, 676 ; Birch v. Wright, 1 Term R. 382. 4 Co. Lit. 47, b; Cro. Car. 398; Vaugh. 80, 81 ; Miller u. Mayuewaring, W. Jo. 354; S. C. Cro. Car. 397. * Stiles V. Cowper, 3 Atlc. R. 692 ; Jackson v. Cator, 5 Ves. R. 688 ; Dan v. Spurrier, 7 Ves. R. 231 ; 12 Ibid. 78 - 85. CH. rV.] BY JOINT TENANTS AND TENANTS IN COMMON. 69 sufferance in the interval.^ But where the remainder-man or reversioner joins with the tenant for life in making a lease, it is goodj and is considered, during the life of the tenant for life, as his lease, and the confirmation of the remainder-man or rever- sioner ; and, after the death of the tenant for life, it is taken to be the lease of the remainder-man or reversioner, and the confirm- ation of the tenant for life.^ But it has been determined that a lease executed by a tenant for life, in which the reversioner, who was then under age, was named as a party, but did not execute it, was void on the death of the tenant for life, and that a subse- quent execution of it by the reversioner did not make it good.^ Section V. By Joint Tenants and Tenants in Common. ^ 114. One joint tenant, or a tenant in common, can transfer nothing more than his undivided interest ; but he may grant leases for life, for years, or at will, of his interest, or the several parties in interest may join and convey the entirety.* If one joint tenant make a lease of his moiety for years, and die before the lessee's entry, the lease will ' bind the survivor, and the lessee will retain his interest in the moiety demised until his term expires. And so one joint tenant may make a lease, to commence after his death, and his cotenant, if he survive, will be bound by it.^ § 115. If parceners, or joint tenants, join in a lease, this will be but one lease, for they have but one freehold ; but if tenants in common join in a lease, it amounts to several leases of their seve- ral interests.® One joint tenant, or tenant in common, may make a lease of his part to his companion ; and this gives him a right ' Doe dem. Martin v. Watts, 2 Term R. 83 ; S. C 2 Esp. 501 ; Doe dem. Tucker v. Morse, 1 Bar. & Ad. 365. 2 Treport's Case, 6 Co. 14, b; 2 Prest. Com. 141. ■ Ludford v. Barber, 1 Term R. 86. * Anderson v. Tompkins, 1 Brock. Cir. K. 456-463; Massie v. Long, 2 Ham. R. 287. 5 Cro. Eliz. 287 ; Cro. Jac. 91 ; S. C. Moore, 776 ; Cro. Jac. 25 ; Co. Lit. 163. s 2 Rol. Abr. 64 ; Shcp. Touch, 268, n. 3. 70 LAW OF LANDLORD AND TENANT. [CH. IV. of taking the whole profits, when before he had but a right to the moiety thereof; he may contract with his companion for that pur- pose as well as with a stranger.^ And where tenants in common join in a lease, reserving an entire rent, they may join in enforc- ing payment of it ; but if there be a separate reservation to each, each must bring a separate action.^ If, however, tenants in com- mon make several demises of their undivided shares, either by distinct instruments or by the same instrument, they must sever in action ; for a joint action can only be maintained on a joint demise.^ But if the action be upon a covenant, and the cause of action be one and entire, tenants in common, being covenanters, must join, although the covenant be with them and each and every of them.* If, however, the cause of action be separate and distinct, tenants in common covenant must sue severally, though the covenant be joint in terms ; but the several interest and seve- ral ground of action must distinctly appear, as in the case of covenants to pay separate rents to tenants in common, upon demises by them.® <5i 116. Where tenants in common concur in granting a lease, each of them usually demises, according to his respective estate and interest, the instrument containing one grant of the whole estate, but a separate render of rent to each of the lessors, and a separate covenant for the payment of rent. But as, under a lease in this form, the lessors must bring separate actions for their respective portions of the rent, it is better that the demise should be joint, with one render of the entire rent to the lessors simply, which will not prevent their taking it as tenants in common, the rent following the reversion, and a covenant with them for payment ; in which case, they may join in an action of covenant or sue separately in debt, at their option. <^ 117. By the strict rules of the common law, one partner could not bind another by any instrument under seal, unless he ' Cro. Jac. 83 - 611 ; Kray v. Goodwin, 16 Mass. E. 1. ' Powis V. Smith, 5 B. & A. 850. ' Powis V. Smitli, 5 Bar. & Aid. 851 ; S. C. 1 Dow. & Ry. 490. ' Klingsby's Case, 5 Co. 18, b; Withers v. Bircham, 3 B. & C. 254; S. C. 5 Dow. & Ry. 106. * Servante v. James, 10 Bar. & Cr. 410 ; S. C. 5 Man. & Ry. 299. OH. IV.] BY MORTGAGOR AND MORTGAGEE. 71 had a previous express authority for the purpose ; and such is still the law in Tennessee.^ But this doctrine has been essentially relaxed in the more commercial States ; where it is held that one partner, if in the presence of his copartners, may execute a deed for them, in a transaction in which they are all concerned.^ And an absent partner may also be bound by a deed, executed on behalf of the firm by his copartner, provided there be either a previous parol authority, or a subsequent parol adoption of the act.^ While the Superior Court of the city of New York have enlarged the old rule still further, and hold that one partner may execute, in the name of the firm, any instrument under seal necessary in the usual course of business, which will be bind- ing upon the firm, provided the partner had previous authority for that purpose ; but that such authority need not be under seal, nor even in writing, nor specially communicated for the specific purpose ; and may be inferred from the copartnership itself, or from the subsequent conduct of the copartner, implying an assent to the act.* Section VI. By Mortgagor and Mortgagee. § 118. It may happen that the lessor, at the time of making a lease, has no such interest in the land as to entitle him to con- tract absolutely for the enjoyment of it. Thus mortgagors, after default in payment of the mortgage-money ; and all persons hav- ing mere equitable interests in lands or other hereditaments, have no estate which can be recognized in a court of law. Neither at common law can a lease, created by a mortgagor subsequent to the mortgage, or when made by a cestui que trust, be set up in a court of law against the trustee or mortgagee.^ In this respect 1 Turbeville v. Eyan, 1 Humphrey, E. 113 ; 7 D. & E. 207. 2 Mills V. Barber, 4 Day, E. 428; Gerard v. Basse, 1 Dal. E. 119; Hart v. Withers, 1 Penn. E. 285 ; 9 Wend. E. 439. ^ Skinner v. Dayton, 19 Johns. E. 515. * Gram v. Seton, 1 Hall. E. 262. " Webb t'. Eussell, 3 Terra E. 401 ; Keith v. Swan, 11 Mass. E. 216; Roe v. Lowe, 1 H. Bl. E. 444. 72 LAW OF LANDLORD AND TENANT. [OH. IV. they are in the same situation as strangers, who have no interest in possession ; although such leases are held good as between the parties, by way of contract.^ But as against all persons, except the mortgagee and those claiming under him, the mortgagor is considered owner of the land so long as he remains in possession, with the power of leasing or conveying it, subject always to the incumbrance.^ A mortgagee, however, although in posses- sion, cannot make a lease that will bind the mortgagor, if he after- wards comes in to redeem.^ § 119. A tenant under a lease made prior to a mortgage can- not be dispossessed by the mortgagee, unless by virtue of a pro- viso for reentry on non-payment of rent, or non-performance of covenants ; the mortgagee, as assignee of the reversion, having no higher rights thap the mortgagor.* But, to secure to himself the benefit of the rent and covenants, the mortgagee should give the lessee notice of the mortgage, and require payment of the rent ; and at common law he is entitled as well to rent which has fallen due since the mortgage, and remains unpaid to the mort- gagor, as to rent accruing due after notice ; until notice, the les- see is justified in paying rent to the mortgagor.^ § 120. The rights of a tenant, under a lease executed after a mortgage, stand upon a difierent ground. A mortgagor in pos- session, according to the English law, is regarded as a tenant at will to the mortgagee ; who, being the legal owner, is entitled at law to the immediate possession, and to the receipt of rent if the land is in lease ; and he may enter upon the mortgagor at any time, even before default in payment of the mortgage-money, and eject him.® The mortgagor, consequently, has no power of mak- > Thome v. Bruton, 1 Keb. E. 24. = Willington v. Gale, 7 Mass. R. 138 ; Collins v. Tony, 7 Johns. E. 278 ; Blaney V. Bearce, 2 Greenl. E. 132. 3 Hungerford v. Clay, 9 Mod. E. 1. " Moss V. Gallimore, 1 Doug. 279 ; Eogers v. Humphreys, 4 Ad. & El. 299 ; S. C. 1 Har. & Wol. 625. 5 Pope V. Briggs, 9 Bar. & Cr.245; S. C. 4 Man.&Ey.l93. To the extent of the doctrine stated in the text, this case of Pope v. Briggs docs not appear to be over- ruled by Partington v. Woodcock, 6 Ad. & El. 690 ; S. C. 5 Nev. & Man. 672 ; and Evans v. Elliott, 9 Ad. & El. 342 ; S. C. 1 Per. & Dav. 256. 6 Doe V. Maisey, 8 B. & C. 767 ; 5 Eing. 421 j 3 Man. & Ey. 109 ; Cro. Jac. 659. CH. IV.] BT MORTGAGOR AND MORTGAGEE. 73 ing leases that will bind such a mortgagee ; and, when he collects rent, he is only to be considered as receiving it in order to pay interest on the mortgage, by an implied authority from the mort- gagee, until he determines his will. Hence, tenants under leases made subsequent to a mortgage may be treated as trespassers by the mortgagee, and ejected without notice.^ By giving notice to such a tenant to pay rent to him, a mortgagee does not make him his tenant ; no such result will be produced, unless an attornment by the tenant, or something equivalent to it, takes place, for the express purpose of creating a new tenancy between the tenant and the mortgagee.^ And if he accepts such person as his tenant, he will, after such acceptance, only become tenant from year to year to the mortgagor, although he may be in possession under a lease for years from the mortgagor.^ '§> 121. The common law doctrine, according to Mr. Chancellor Kent, prevails very extensively in the United States ; * and this distinguished author also repudiates the idea of the existence of any relationship of landlord and tenant between a mortgagor and mortgagee. There is nothing, certainly, in the nature of a con- tract for the payment of rent between them ; nor is the mortgagor or his lessee entitled to emblements, as other tenants at will are ; nor is it necessary to serve him with notice to quit, before an ejectment suit can be maintained against him.^ Neither can a mortgagee distrain upon such S, tenant, or sue him for rent, until after he has actually attorned to the mortgagee.^ And although a tenant is justified in paying rent to a mortgagee after notice, the mortgagee can only enforce such payment in an action of ejectment, and for mesne profits.'' ' Jackson v. Fuller, 4 Johns. E. 414 ; Keech v. Hall, 1 Doug. 21 ; 5 Nev. & M. 511; 4 Ad. & El. 299. 2 Evans v. Elliott, 1 Per. & Dav. 256; 9 Ad. & El. .342 ; 4 Man. & Ey. 193. 3 Doe dem. Hughes v. Bucknell, 8 Car. & P. 566. ' Eockwell V. Bradley, 2 Conn. E. 1 ; Blaney v. Beam, 2 Greenl. 132 ; Er.skine V. Townsend, 2 Mass. E. 493 ; 16 Ibid. 39 ; Simpson v. Ammons, 1 Binney, 176 ; McCall V. Lennox, 9 S. & E. 302. But see Jackson v. Green, 4 Johns. E. 186. » 4 Kent, Com. 149 ; Doe dem. Roby v. Maisey, 8 B. & C. 767 ; 3 M. & E. 109 ; Patridge v. Bell, 5 B. & A. 604 ; Christopher v. Sparke, 2 Jac. & Walker, 234. * Eogers v. Humphreys, 4 Ad. & El. 299. ' Pope V. Biggs, 9 B. & C. 245. 7 74 LAW OF LANDLORD AND TENANT. [CH. IV. § 122. It is to be understood, however, that an attornment is necessary only where the lands are mortgaged at the time of the creation of the lease ; for, in this case, the mortgagee is entitled to the rents, as assignee of the reversion, and by force of the statute. All that is necessary for him to do is, to give the tenant notice to pay rent to him, in order to prevent such tenant from paying them over to the mortgagor. But if, after the mortgage, the mortgagor makes a lease under such circumstances that he cannot be considered the agent of the mortgagee in doing so, the mortgagee can only collect the rent after a voluntary attornment of the tenant to him ; and his merely giving notice to pay^rent ■will not constitute a tenancy between them, so as to enable the mortgagee to enforce the collection of the rent.^ 4> 123. In the State of New York, the Revised Statutes have abolished the action of ejectment by a mortgagee, thereby com- pelling him to rely upon a special contract for the possession, if he wishes it, denying his right to the rents and profits of the estate so long as the land is a sufficient security for his debt, and turning him over to the courts of equity for a foreclosure and sale as his only remedy. The mortgagee is only entitled to have a receiver of the rents and profits of the mortgaged premises, after it satisfactorily appears that the property is not of sufficient value to satisfy the mortgage debt and costs, and the mortgagor or other person, who is personally liable for the debt, is irresponsible, or unable to pay the expected deficiency. And where the defendant, in a suit to foreclose the mortgage,, is in possession by his tenant, who is not a party to the suit, the possession of the tenant will not be disturbed by the appointment of a receiver ; but he may be ordered to attorn to the receiver and pay rent to him.^ § 124. In Massachusetts, also, it is held that a mortgagor, so long as he remains in possession, or until actual entry by the mortgagee, may receive the rents and profits to his own use, and is not liable to account for them to the mortgagee.^ Nor is he liable even for such as may accrue between the time of the com- ' Evans v. Elliott, 9 Ad. & El. 342. " Sea Ins. Co. v. Stebbins, 8 Paige, R. 5G5 ; Shotwell v. Smith, 3 Edw. E. 588. 2 Boston Bank v. Eecd, 8 Pick. 459 ; Gibson v. Tarley, 16 Mass. K. 280. CH. IV.] BY CORPORATIONS. 75 mencement of the action to foreclose, and the time of taking pos- session upon execution. 1 So if a person demise an estate for a term of years, reserving rent, and afterwards mortgage the same estate to the lessee in fee, and the mortgagee refuses to pay the rent, the rent is suspended until the condition is performed or the estate redeemed. During the suspension, the lessee will be accountable for the profits, as mortgagee, towards the discharge of the interest and principal of the debt. If he voluntarily pays the rent, he will not afterwards be accountable, as mortgagee, for the profits during the same time.^ § 125. From the foregoing observations, it is obvious that a permanent lease of lands under mortgage can only be secured by the concurrence of both the mortgagor and mortgagee, the former to demise and lease, the latter to ratify, and confirm. Such a lease operates during the continuance of the mortgage as the demise of the one and the confirmation of the other ; but after the mortgage is paid off, as the demise of the latter and confirm- ation of the former.^ Where both concur in the grant, the cove- nants on the lessee's part should be entered into with the mort- gagee, with a view to their running with the land. If entered into with the mortgagor, they are merely covenants in gross, and of no value to an assignee of the mortgage.* A mortgagor cannot enforce a specific performance of a contract to take a lease, with- out first redeeming the mortgage, or obtaining the mortgagee's concurrence in the lease ; though a party claiming under such a contract, cannot compel the mortgagor to pay off the mortgage, to give efiect to the lease.^ Section VII. By Corporations. § 126. Every corporation aggregate, has a common law right to hold, enjoy, and transmit such property, as may be neces- ' Mayo V. Hetchcr, 14 Pick. 525. - Ncwall V. Wright, 3 Mass. E. 138. ■' Doe dem. Barney v. Adams, 2 Cromp. &. Jer. 232; S. C. 2 Tyrwh. 2S9 * Webb V. Russell, 3 Term R. 393 ; Ibid. 679 ; In Er. 1 H. Bl. 562. " Costigan v. Hastier, 2 Scho. & Lef. 160. 76 LAW OF LANDLORD AND TENANT. [CH. IV. sary, to enable it to answer the purposes of its creation ; ^ it may, consequently, make leases for a term of years, or for the life of the lessee.^ As a general rule, it must grant as well as take by its corporate name ; but an immaterial variance in the name, will not avoid its grant, when the true name is necessarily to be col- lected from the instrument, or is shown by proper averments.^ § 127. A corporation at common law, could do no act except by writing, under its corporate seal ; but this doctrine has been greatly relaxed by recent decisions in England,* and is now entirely repudiated in the United States. The Supreme Court of the United States, in common with the State courts, hold, that whenever a corporation aggregate is acting within the scope of the legitimate objects of its institution, all parol contracts made by its authorized agents, are binding upon it.® And that a bank, or other commercial corporation, may bind itself, by a vote of its board of directors, or by the acts of their authorized ofBcers and agents, without the corporate seal.^ The modem decisions in fact place corporations, with regard to their mode of making contracts, upon the same footing with natural persons. They may contract under seal, but are no otherwise obliged to do so, than individuals. Like these, they are subject to the rules established by law, and cannot take or grant certain interests in land, otherwise than by deed, when similar interests can only be so taken or granted by individuals. Corporations, therefore, may now make parol leases, in the same manner, to the same extent, and under the same restrictions, that natural persons may.' 1 People u. XJtica Ins. Co. 15 Johns. R. 383; McCarty o. Orphan Asylum, 9 Cow. E. 437. 2 Eeynolds v. Corn's of Stark Co. 5 Ham. (Ohio) R. 205 ; Co. Lit. 44, a. = Angell&Aiues on Corp. 60; 13 Johns.E 38; 6S.&R. 12; 5 Halst. R. 322; 3 Pick. R. 232. * London Water Works v. Bailey, 4 Bingh. R 283. 5 Bank of Columbia v. Patterson, 7 Craneh, R. 299 ; 22 Wend. R. 348 ; 4 Hill, 263. 6 Fleckner v. The United States Bank, 8 Wheat. R. 338; Mott v. Hicks, 1 Cow. R. 613 ; 4 S. & E. 16 ; 12 Johns. R. 227. ' Per Marshall, C. J.; Bank of United States v. Dandridge, 12 Wheat. R. 105; 9 Ibid. 738 ; Garvey v. Colcook, 1 N. & McCoi-d, 231. Lay corporations, by the laws of New York, are restricted from granting or accepting leases, except so far as the purposes of the corporation sliall require, or their charter may authorize. CH. IV.] BY CORPORATIONS. 77 § 128. The board of directors are, for all business purposes, the corporation ; and they may authorize a committee to lease, or otherwise dispose of real estate ; and that power implies an author- ity to affix the corporate seal, if necessary or proper.' The Revised Statutes of New York, relating to the general powers of corporations, enact, that " when the corporate powers of any cor- poration are directed by its charter to be exercised by any parti- cular body or number of persons, if it be not otherwise provided in the charter, a majority of such body or persons, shall be a suffi- cient number to form a board for the transaction of business ; and every decision of a majority of the persons duly assembled as a board, shall be valid as a corporate act.^ § 129. Although a corporation may execute parol leases with- out the use of the corporate seal, its seal is still necessary, as we have observed, in all cases where a seal would be required, if the instrument were executed by an individual. But the corporate seal, when affixed to a contract or conveyance, does not render the instrument a corporate aci, unless it is affixed by an officer or agent duly authorized to execute the instrument, or acting in pur- suance of a directory vote of the board of directors of the com- pany.® It is necessary to prove the corporate seal in the same manner as tlie seal of an individual ; for the common seal is not evidence of its own authenticity, but must be proved to be such, not indeed by one who saw it affixed, but by one who knows it to be the seal of the corporation it purports to be.* When the seal is affixed to the deed, it is prima facie evidence that it was affixed by the authority of the corporation ; provided it is also proved to have been put to the deed by an officer who was intrusted by the corporation with the custody of such seal. And 1 R. S. 599. Religious incorporations also are only authorized to make leases for the use of the society or other pious uses. Act 5 April, 1813, sess. 36, eh. 60, § 4. ' Burrill v. Nahant Bank, 2 Metcalf, R. 163 ; Decker v. Freeman, 3 Grecnl. R. 338. 2 1 R. S. 600, § 6. ^ Jackson v. Campbell, 5 Wend. R. 572 ; Bank of United States v. Dandridge, 12 Wheat. R. 68 ; 6 Teigh, & Ra. 12; 9 East, R. 360. ■' Jiickson u. Pratt, 10 Johns. R. 381 ; Foster v. Shaw, 7 Sev. & R. 156 ; Den V. Freeland, 2 Halst. R. 352. In Kew York, the seal of a corporation may be affixed, by making an impression directly on the paper, and the legal effect will be the same as if made on wax or a wafer. Jjaws of 1848, p. 305. 7* 78 LAW OF LANDLORD AND TENANT. [CH. IV. it lies with the party objecting to the due execution of the deed, to show that the corporate seal was affixed surreptitiously, or improperly ; and that all the preliminary steps, to authorize the officer having the legal custody of the seal, to affix it to the deed, had not been complied with.^ Section VIII. By Trustees. § 130. Trustees of lands, who are owners of the legal estate, may grant leases at law, which cannot be impeached so long as they are justified by the quantity of estate they possess. But a party, taking a lease from a trustee with notice of the trust, and without the concurrence of the person who is beneficially inter- ested, is subject to the control of a court of equity. The lessee of a cestui que trust, however, acquires no interest without the concurrence of his trustee, being in fact deemed a mere tres- passer as against the trustee, and is liable to an eviction at law without any previous notice to quit.^ It is, therefore, more pru- dent, as in the case of mortgagor and mox'tgagee, that the trustee and cestui que trust should both join in a demise. The trustee should demise and lease, and on the part of the cestui que trust, words of demise should be inserted, as well as words of consent and approlation. If there be several cestuis que trust, the con- currence of all is necessary ; for, if a trustee under a will concur with some, but not all of them, in a lease which recites part only of the trusts, the lessee cannot hold in opposition to the other cestuis que trust, who are not parties to the lease ; such a recital rendering it incumbent on him to make further inquiry, and he is to be considered as having had notice of the title of the other claimants under the will.^ The rent should be reserved generally, during the term, without specifying to whom, leaving the law to give it its due appropriation. And the covenants, to make them run with the land, should be entered into with the trustee.* ' Lovett V. Steam Saw-Mill Co. 6 Paige, E. 54 ; Clarke v. The Imperial Gag Co. 4 B. & A. 315 ; S. C. 1 Nev. & Man. 206. 2 Blake v. Foster, 8 Term E. 487, 492. ' Malpas V. Ackland, 3 Euss. E. 273. '< Webb V. Eusscll, 3 Term E. 393 ; 1 H. Bl. 562. CH. IV.J BY TEUSTBES. 79 § 131. Trustees, as we have said, may make valid leases, but the duration of such leases must be for a reasonable period, under the circumstances of each particular case. In one case, where a testator devised his real estate to trustees, upon trust, out of the yearly rents and profits, to pay certain annuities, and subject thereto, to permit a person to receive the rents and profits for life, and after his decease to permit his wife to receive them for her life, with limitations over in favor of their children, the trustees were held to have power to demise for ten years. •* But with reference to a devise to A. in fee, in trust for his infant son, to be conveyed to him at the age of twenty-one, and without imposing terms upon the trustees as to the rent, or the length or terms of lease. Lord Eldon held, that although the trustees might do what was reason- able, they could not alienate the land for ninety-nine years at a stationary rent.^ One of several trustees cannot act separately and independent of the others, since they have a joint power and authority, and, therefore, a lease not executed by all, of several trustees, has been held to be absolutely void.^ § 132. Whatever may be the term for which the lease is granted, the burden of proving its reasonableness devolves on the trustee, and the lessee claiming under him. The principle upon which a court of equity will interfere with leases made by a trus- tee, rests on the assumption that the lessor has been guilty of a breach of trust in making, and the lessee has made himself acces- sory to that breach of trust in accepting, an improper lease. Thus a suspicion of mismanagement will attach to a lease made for a long term of years absolute, at a stationary rent, because no man of a reasonable degree of prudence would so let his own estate, * therefore it is said that generally speaking an alienation by trus- tees for ninety-nine years, if a mere husbandry lease, and .without adequate consideration ;^ or a lease for seventy years or more, at an unvarying rent, (the value of such interests being but little inferior to the value of the inheritance,) and no other considera- 1 The Attorney-General v. Owen, 10 Ves. 555-560. ' Naylor v. Arnitt, 1 Rnss. & Myl. 501 ; 10 Ves. 555, supra. 3 Sinclair v. Jaclcson, 8 Cow. R. 582 ; Story Eq. Jur. § 1062. * Attorney-General v. Cross, 3 Meriv. R. 548 ; 18 Ves. 326. " Attorney-General v. Owen, 10 Ves. 555; Attorney- General v. Hotham, 1 Tur. & Russ. 209 ; S. C. 3 Russ. 415 ; 11 Sim. E. 380. 80 LAW OP LANDLORD AND TENANT. [CH. IV. tion than the rent forming an inducement to the contract, cannot be upheld.^ Section IX. By Executors and Administrators. § 133. Executors may demise the premises which devolve upon them by the will of their testator, even before probate ; but adminis- trators can only act, under an order of the court which appointed them.^ Several executors are regarded as an individual person, and have a joint and entire interest in the testator's property ; and the lease of one executor is therefore equally valid as their joint demise, although it purport to be in the name of all.^ The husband of a woman who is an executrix has a joint interest with her in all the eifects of the deceased, and is enabled by law to assume the whole administration, and to act in it to all purposes, without her consent ; but the wife cannot do any act as executrix or administratrix without her husband's concurrence. She is therefore, with respect to terms for years, which she possesses in her representative character, in no better situation during the marriage, than in the case of terms for years, to which she is enti- tled in her own right.* § 134. It is said, that leases by executors or administrators, though good at law, are voidable in equity, unless shown by the lessees to be a due administration of the assets of the testa- tor or intestate. Therefore, an under-lease granted by an admi- nistratrix was set aside, where the lessee had notice that a sale was required by the parties beneficially interested.^ A person tak- ing from an executor, a lease of premises specifically bequeathed • Attorney-General v. Griffith, 13 Ves. 575 ; 17 Ves. 290; Attorney-General v. Wavrcn, 2 Swanst. 304; S. C, 1 Wils. Ch. C. 387; 6 Beav. 288. 2 Bank of Hamilton, 2 Peters, R. 492 ; Roe dem. Bendall v. Summerset, 2 W. Bl. R. 692; 1 Atk. R. 461. ' Simpson y. Gutteridge, 1 Mad. C. R. 616; Bedell «. Constable, Vaugh. 179; Roc U.Hodgson, 2 Wils R. 129; 1 P. Wms. 702; Doe v. Sturgos, 7 Taunt. 217. ■> Chamb. on Leases, 35. ^ Drohan v. Drohan, 1 Ball & Beat. 185 ; Evans v. Jackson, 8 Sim. R. 217. CH. IV.] BY GUARDIANS. 81 to another, should obtain if possible the concurrence of the lega- tee ; for after the executors assent to the bequest, the legal title vests in the legatee, at whose suit an action of ejectment will lie agaiast the purchaser.^ Section X. By Cfuardians. § 135. Guardians of infants, who were in the nature of guard- ians in socage, might at common law demise the infant's lands for a term of years, not extending beyond the infant's age of fourteen years.^ And such demises might be in the guardian's own name, and without leave of the court ; for he had not merely a bare authority, but an interest in the land descended. But a term extending beyond that term was voidable, provided the infant was then entitled to choose his own guardian ; and it might be avoided or affirmed by a subsequent guardian chosen by the infant.^ But the common law distinctions of guardians have, in this country, been essentially superseded in practice, by guardians appointed by the courts of chancery or of probate, who, as well as testa- mentary guardians, are now vested with all the rights of the guardian in socage during the whole of an infant's minority.* And it is w%ll understood that his authority continues until the majority of his ward, and is not controlled by the election of the infant, when he ai-rives at the age of fourteen.^ ' Paramour v. Yardley, Plowd. 539 ; 4 Co. 28, b. ; 3 East, 120. ^ Doe V. Hodgson, 2 Wils. R. 129 ; Bacon v. Taylor, Kirby, (Ky.) E. 368. ■• Shopland v. Ryder, Cro. Jac. 55 - 98 ; Ibid. 1 Pick. R. 314 ; Greenl. R. 67 ; Snook V. Sutton, 5 Halst. R. 133 ; Vandoren v. Everett, 2 South. 460. - Byrne v. Van Hoesen, 5 Johns. R. 66 ; Eield v. Scheffelin, 7 Johns. Ch. R. 154. * In the Matter of McoII, 1 Johns. Ch. K. 25; Matter of Dyett, 5 Paige, R. 534 ; Putnam v. Richie, 6 Paige, 390 ; 2 R. S. 151, § 10. 82 LAW OF LANDLORD AND TENANT. [CH. IV. Section XI. By Committees and Receivers. >5> 136. The committee of a lunatic being considered merely as a bailiff, and having no estate but during pleasure, could not make leases of the lunatic's lands ■without an express order of the court appointing them.^ And the court could not enable him to grant an absolute interest, that the lunatic, on his recovery, might not terminate.^ But the statutes of England, as well as of the various United States, now authorize such committees to make specific leases, independent, in point of duration, of the lunatic's restora- tion to sanity. The courts, also, from time to time, make orders for the appointment of a receiver, for the protection, care, and management of the estates of lunatics, or other suitors or litigants coming before them. In all which cases, the rules and orders of such courts constitute the law for the governance of their receiv- ers, who, in fact, are regarded as officers of the courts appointing them. A mere bailiff cannot lease his employer's lands otherwise than at will ; but a power may be conferred on him for that pur- pose.^ Section XII. ' By Agents. § 137. An agent, according to The Touchstone, " if he have a letter of attorney, or other authority, may make leases for ano- ther, but herein caution must be had of three things: 1. That the authority be good ; 2. That he, that is, the attorney, do pursue the authority strictly ; 3. That he do it in the name of his principal, and not in his own name."* The authority of an agent may be ' Foster j>. Merchant, 1 Vern.R. 262 ; Knijje v. Palmer, 2 "Wils. R. 130 ; 3 Ire- dell, E. 389. 2 Ex parte Dykes, 8 Ves. 79. ^ Shopland v. Ryder, Cro. Jac. 55 - 98 ; Knipe v. Palmer, 2 Wils. 16. * Shep. Touch. 270 ; Combe's Case, 9 Co. R. 76. OH. IV.] BY AGENTS. 83 shown as well by a subsequent ratification, or adoption of his acts by the principal, as by an original appointment.^ An original- appointment is directly proved by express words of appointment, either verbally or in writing. It may be indirectly established, by proof of the relative situation of the parties, or of their habit and course of dealing and intercourse, or from the nature of the employment, or from subsequent ratification.^ An agent appointed to contract for the granting of a lease need not, in general, be authorized in writing, under the statute of frauds.^ But an appointment under seal is necessary where his authority extends to the execution of a deed, or to the demise of any incorporeal hereditament, which cannot be granted otherwise than by deed.* There are cases, however, where a written authority to an agent may not be sufficient to give validity to a deed in a court of law, for the want of a seal, yet equity will compel the principal to ratify and confirm the deed.^ If the deed is executed in the pre- sence of the principal, no other authority to the agent is neces- sary. ^ A power of attorney does not admit of delegation ; for delegatus non potest delegariJ And whenever it is necessary to record the lease, the power must be recorded also.^ "§> 138. Supposing the agent to have authority, an agreement for a lease, and a lease executed in pursuance of such agreement, will effectually bind the principal. And if the person, at the time of entering into such agreement, is acting as the agent of another in negotiating the lease, it is not material whether, at t|hat moment, he intends the agreement to be for the benefit of his principal or his own; because, in either case, the principal will be entitled, as ' Story on Agency, ^ 239 - 260. » Ibid. 5 45. = Clinan v. Cooke, 1 Sch. & Lef. 22, 31 ; Boyland v. Warner, 1 Hay. & Jo. 79, 88 ; TurnbaU v. Trout, 1 Hall, N. Y. E. 336 ; McComb v. Wright, 1 Johns. Ch. K. 667. < Blood V. Goodrich, 9 Wend. R. 68 ; Horseley v. Eush, cited 7 Term E. 209 ; White u. Cougler, 6 Term E. 176 ; S. C 1 Esp. 200 ; Cooper v. Eankin, 5 Binn. E. 612 ; 2 Bibb, E. 174 ; 5 Mass. 40. " Harrison v. Jackson, 7 Term E. 207 ; Story on Agency, 5, 49. " Story on Agency, § 51. ' Combe's Case, 9 Co. 75, b. 8 Stjwart V. Hall, 3 B. Monroe, 220. 84 LAW OF LANDLOKD AND TENANT. [CH. IV. against him, to the benefit of the contract.^ And although the • authority of an agent must, in general, be strictly pursued, yet there are cases where his acts have been sustained when he has exceeded his authority .^ As if, having power to lease for ten years, he makes a lease for twenty ; it is good for the ten years, because so far it is a good execution of his power, and will be supported in equity ; ^ though at law, according to an English decision, it would seem not to be good pro tanto even for the ten years.* But an acquiescence of the principal, after knowledge of the act done for him by another, will generally be considered suffi- cient evidence of a ratification of such act.^ § 139. The general rule, with regard to the execution of an authority, undoubtedly is, that an act done under a power of attorney must be done in the name of the person who gives the powier, and not in the attorney's name. And if it appears from the deed that the seal is in fact the seal of the agent, and not of the principal, the latter cannot be made liable upon any covenant contained in it, nor will the instrument pass any estate or interest of the principal. So where a deed, purporting to have been made between A., by B., his attorney, of the one part, and C. of the other part, stated in the attestation clause that B., as the attorney of A., had set his hand and seal thereto, it was held not to bind A., for the addition of the word attorney is merely descriptive.^ But if the execution of a deed really appears to be in the name of the principal, the form of words used in the execution is not material ; thus it has been held sufBcient, where opposite the seal was written, " for S. B. (the prlncij)al), by 0. D. (the attorney)." '' 1 Taylor v. Salmon, 4 Myl. & Cr. 134 ; Lees v. Nuttall, 1 Knss. & Myl. 53, affinned by Ld. Brougham, on appeal, 2 Myl. & IC. 819. ' Batty V. Caswell, 2 Johns. E. 48 ; 3 Term E. 757 ; 15 Ibid. 45; 15 East, R. 38; Gordon v. Buchanan, 5 Yerger, Tenn. E. 71. ^ Sugden on Powers, 545 ; Perry v. Bowen, Nel. 87 ; Alexander v. Alexander, 2 Ves. 644 ; Campbell v. Leach, Ambler, E. 740. * Eoe V. Prideaux, 10 East, E. 158. ^ Amory v. Hamilton, 17 Mass. E. 103-247 ; Wills v. Back, 2 East, E. 142 ; Bogert V. Debussy, 6 Johns. R. 94; Fowler o. Sheaver, 7 Mass. R. 19; 11 Serg. & Eaw. 126 ; Smith v. Henry, 1 Har. & McHen. 706 ; Harper v. Hampton, 1 Har. & Johns. 622. " Townsend v. Orcutt, 4 Hill, N. Y. E. 351 ; Berkley v. Hardy, 5 B. & C. 355. ' Wilts V. Bach, 2 East, R. 142 ; Spencer v. Eield, 10 Wend. 87. CH. IV.] BY AGENTS. 85 § 140. A distinction is also to be observed between a bare act, as the execution of a deed, and the form of a contract, when made by an attorney, in which latter case the phraseology is material ; for if a man describe himself, in the beginning of an agreement to grant a lease, as making it on behalf of another, and as his agent, but, in a subsequent part of the same agreement, says he will execute the lease, the agent is personally liable.' While a lease made by an attorney in his own name, even if he describes himself to be the agent or attorney of his principal, together with the covenants to pay rent, are void. But the attorney is not bound, even though he had no authority to execute the deed, if it appears on the face of it to be the deed of the principal.' When- ever, therefore, an interest passes by the instrument, as in an indenture of lease, it must, in terms, be conveyed by the princi- pal, in whom alone the interest is vested ; for a power of attorney, as such, vests no interest in the representative, consequently none can pass from him. "§ 141. The proper form for concluding a lease, executed under a power of attorney, is : In witness whereof A. B., in pursuance of a letter of attorney hereunto annexed, bearing date, ^c, (or, if it is a general power, embracing other lands, then " in pursu- ance of a letter of attorney, hearing date, ^c.,a copy of which is hereto annexed,") hath set the hand and seal of the principal ; " and then to write the name of the principal, and deliver it as the act and deed of the principal. When executed by an attorney for several parties, it does not appear to be necessary to affix a separate seal for each person, if the seal affixed is intended to be adopted as the seal of each of the parties.^ § 142. As a general rule, an agent cannot take a lease for his own use, of property which he is employed to let ; for it is a prin- ' White V. Simer, 13 Johns. B. 307 ; Norton v. Heron, 1 C. & P. 648 ; 1 R. & M. 229. s Townsend v. Coming, 23 Wend. E. 435 ; Trontin v. Small, 2 Ld. Kay. K. 1419 ; Stone v. Wood, 7 Cow. B. 453. 3 McDill V. McDill, 1 Ball. E. 63 ; Bohanans v. Lewis, 3 Monroe, 376 ; Yarbo- rongh V. Monday, 2 Der. 493 ; Stabler v. Cowman, 7 Gill & Johns. 281 ; Ball v. Dunsterville, 4 Term B. 313. 8 86 LAW OF LANDLOKD AND TENANT. [CH. IV. ciple of la-w, that lie who undertakes to act for another in any matter, shall not, in the same matter, act for himself.' This rule has been frequently applied to the cases of trustees and other agents, buying property which they are intrusted to sell. So the assignee of a bankrupt, taking a lease of property himself instead of selling it, has also been held answerable for profit or loss.^ It is, at all events, incumbent on a person holding the character of an agent to show that the transaction, from which he derives benefit, is perfectly fair and reasonable ; and tha,t a just conside- ration has been given by him for a lease obtained from his prin- cipal.^ Section XIII. By Aliens. § 143. It is a general rule of law, that an alien cannot acquire title to property by mere operation of law, as by descent ; * but he may by purchase.^ He may make a grant, which will be effectual against all persons except the crown ; but if he purchases an estate for life, or term of years, the king on office found shall have it. Yet, until office found, he shall enjoy it ; for until then the alien is seized.^ Pursuant to these general principles, and under such restrictions, the common law permits an alien friend to take a lease for a year of a house for the benefit of trade ; yet, according to Lord Coke, none but an alien merchant can lease land at all, and then only as necessary to trade.'^' The English statutes, also, make leases of dwelling-houses or shops, granted to a stranger, who is an artificer, void, if they extend to a term of years, but not if they be leases at will, or from year to year.^ But this law, so contrary to sound policy and the spirit of com- merce, has more recently been construed strictly, in favor of ' Per Ld. Thurlow, in Whichcote v. Lawrence, 3 Ves. E. 740. ^ Ex parte Hughes, 6 Ves. 617 ; 8 Ves. 337. ' Kingsland v. Barnwall, 4 B. P. C. 154. ■> Jackson v. Clun, 3 Johns. Cas. 109 ; Hunt v. Warwicke, Hardin, E. 61. ^ Burch V. Brower, 2 Atk. E. 398 ; 7 Co. 25. <= Co. Lit. 2, b ; 1 Prest. Con. 257. ' Co. Lit. 2, b ; 5 Co. E, 52, b. 8 Pilkington v. Peach, 2 Show. E. 135. CH. IV.J BY ALIENS. 87 aliens ; ^ and Mr. Chancellor Kent questions whether such law now exists with us at all, at least in respect to the subjects of those nations with whom we have commercial treaties.^ <5> 144. The common law doctrine has received an important modification by the Eevised Statutes of New York.^ By it a resident alien, who has filed in the ofSce of the Secretary of State an affidavit that he is a resident of the State of New York, and intends to reside in and become a citizen of the United States, as soon as he can be naturalized, and that he has taken the incipient steps which the law requires to enable him to obtain naturalization, has, for six years after filing such affidavit, full power to hold and convey real estate, with the exception only that he cannot make leases of the same, or dispose of it by will. He is, therefore, capable of taking a lease, but cannot underlet the premises, though there seems to be no objection to his assigning or disposing of his whole interest in the lease. § 145. There are similar statutory provisions in favor of aliens in South Carolina, Indiana, Delaware, and Mississippi. And in Louisiana, Pennsylvania, Maryland, Michigan, Illinois, and Ohio, the disability of aliens to take, hold, and transmit real property is entirely removed. While in North Carolina, and Vermont there is a provision inserted in their constitutions, that every person of good character, who comes into the State and settles there, taking an oath of allegiance to the same, may thereupon purchase, and, by other just means, acquire, hold, and transfer land.* The dis- ability never, of course, extended to a denizen, or foreigner who has been naturalized, who is as capable of being a lessor as a natural born citizen.^ ■ 1 Saund. R. 7 ; 3 Mad. K. 94. - 2 Kent's Com. 62. All contracts made between subjects or citizens of differ- ent countries, which are at war with each other, are utterly void. If made in time of peace, the right to enforce them is suspended during the war, by reason of the personal disability of an alien enemy to sue or be sued. When peace is restored this right revives, and the contract regains its original obligation and may be enforced. Griswold v. Waddington, 15 Johns. R. 57 ; S. C 16 Ibid. 438. = 1 R. S. 720, ^ 15-20. * 2 Kent, Com. 70. 6 1 Black. Com. 374. 88 LAW OF LANDLOED AND TENANT. [CH. V. CHAPTER V. THE INSTKTJMENT OP DEMISE. Section I. The Formal Parts of a Lease. § 146. We have seen that a lease for years, being but a chat- tel interest, may be perfected by the entry of the lessee, and without deed ; but a deed has always been required for the con- veyance of an incorporeal hereditament, and will consequently be necessary for the creation of a lease for life. And when a demise, whether for life or years, is intended to embrace the vari- ous covenants usually entered into by the parties, it must be by deed. A deed is an instrument, under seal, written or printed upon paper or parchment. If written upon stone, board, linen leather, or the like, it is no deed ; for neither of these articles are so secure from alteration, and at the same time so durable as paper or parchment.^ If made between more parties than one, there should, regularly, be as many copies of it made as there are parties, and each should be cut, or indented, at the top, to tally or correspond with each other. It then becomes what is techni- cally called an indenture ; the several copies of the same instru- ment being executed by the respective parties. The copy deli- vered to the tenant, is called the original lease ; that retained by the landlord, the counterpart ; but for all practical purposes, both parts are now considered originals. ^ § 147. If there is only a single instrument, it is a deed poll. The former possesses many advantages over the latter, since it contains obligations on the part of the lessee, and amounts to an agreement between two persons ; an office which the deed poll • Co. Lit. 229; F. N. B. 122. ' Dudley v. Sumner, 5 Mass. E. 438. CH. v.] THE FORMAL PARTS 05 A LEASE. 89 cannot perform, because it is but a declaration by the party exe- cuting it, of an act done, or to be done by himself alone, in favor of the other party. The lessee's acceptance of an interest under it, will be implied, unless he expressly dissents, and will render him liable to an action for rent, but he cannot be made liable to an action of covenant, for he makes none ; since a covenant can only be created, by a deed executed by the covenantor ; and con- sequently, by the adoption of a deed poll, all covenants on the part of a lessee are dispensed with.^ § 148. The Bate. The date of a lease, is no part of its sub- stance, and need not, in fact, be inserted ; and, therefore, a mis- take in the date, will not vitiate the instrument.^ If there is no date, or an impossible one, the term will be considered as com- mencing from the delivery of the deed ; unless some particular time for its commencement is therein specified. But if the deed has a sensible date, the word cZate, in the body of it, will refer to that period, and not to the date of delivery.^ It is competent, also, for either party to show, that the delivery took place on a day difierent from the date.* § 149. Names of the Parties. As to the names of the parties, it may be observed, that the law knows of but one christian name ; and that, therefore, the omission or insertion of the middle name of either party, is immaterial. A party may also show that he is as well known by one name as another.^ If a lease is made by an agent or attorney, it should run in the name of the principal, and not of the agent ; because a power of attorney gives no interest in the land, but merely authorizes the attorney to stand in the place, and act in the name, of his principal.® The person to whom the lease is made ought to be a party, for if A. covenant with B. that C. shall enter, and enjoy, this will be a mere colla- teral covenant, and not a lease ; because B. with whom it is made, • Thompson v. Leach, 2 Vent. E. 198; S. C. 3 Mod. 296; Chancellor v. Poole, 2 Dougl. 764; Burnett v. Lynch, 5 Barn. & Cr. 589 ; S. C 8 Dow. & Ey. 368. " Jackson v. Schoonmaker, 2 Johns. E. 230-4 ; Ibid. 230. 3 Church V. Gilman, 15 Wend. E. 656 ; 4 B. & C. 908 ; 7 Dow. & Ey. 507. 4 Steel V. Mart, 4 Bam. & Ores, 272 ; S. C. 6 Dow. & Ey. 392. ^ James v. Stiles, 14 Pet. E. 322. " Frontin v. Small, Ld. Kay. 1418 ; Strange, 705 ; 2 East, E. 142. 8* 90 LAW OF LANDLORD AND TENANT. [CH. V. is a stranger, and C, the intended lessee, is no party to the agreement.^ § 150. Reoitals. Recitals of former instruments, or of circum- stances that have led to the making of the lease, are sometimes used by way of explanation. But an error therein is not material, unless it be of a lease, after the expiration of which the new term is intended to commence ; ^ or unless it shows that the lessor had no interest in the subject-matter of the demise.^ So a recital in a lease, that a former lease granted to another person, had been surrendered, would not afford evidence of the fact of a surrender.* Nor would the execution of the counterpart of a new lease, taken by the lessee prior to the determination of his former interest, and reciting that it was granted in consideration of the surrender of the former lease, produce a surrender, unless it were by operation of law ; inasmuch as it did not purport of itself to be a surrender, having no words in it, which could denote, or amount to, a yield- ing, or rendering Up of the interest of the lessee.^ § 151. If a lease for years be granted by one subject to another, to commence after the expiration of a lease recited to have been made to a third person, when in truth there never was such a lease ; or supposing one if made, to have expired, or to have been originally void, the new demise will take effect immediately on the execution of the deed.^ So if a lease for years be granted, to commence after the end of a former one, then existing, but mis- recited in a material part, the new term will commence immedi- ately, in enumeration of years ; though not in possession until the end of the former lease. But if misrecited in an immaterial part, the term will commence at the end of the existing lease.' A mis- recital of the lessee's name, is deemed material, but it appears ■- Perry v. Aiken, Cro. Eliz. 173 ; 1 Leon. R. 136; 3 Bulst. 251. = Jackson v. Streeter, 5 Cow. 529 ; Bath & Montague's case, 3 Chan. Gas. 101 ; Shep. Touch. 77. » Hermitage v. Tompkins, 1 Ld. Eay. 729. * Lyon V. Reed, 13 Mees. & Wels. 285. 5 Roe T. Archbishop of York, 6 East, 86 ; S. C 2 Smith, 166. « Foot V. Berkley, Cart. 148 ; S. C. 1 Vent. 83 ; Bishop of Bath's case, 6 Co. 34 b. ; 36 a. ' Miller v. Maynwaring, Cro. Car. 397 ; S. C. Jo. 354. CH. V.} THE POEMAL PARTS OP A LEASE. 91 that a misrecital of the rent ; of the time or place of payment ; of the covenants ; or that the lease was without impeachment of waste ; will not be deemed a material misrecital of the lease.^ § 152. Beservation of Bent. Eent, as such, is not, as we have observed, essential to a lease, for from favor, or for a valu- able consideration in gross, the tenant may have a lease with- out any render. But some consideration must appear to give validity to the lease as a contract ; and this is either a good con- sideration, as natural affection, or valuable, as money, or the rent reserved.^ The reservation may be, not only in money, but in grain, animals, or produce ; or it may consist of the personal ser- vices of the lessee. And it is not absolutely necessary, that the amount of the reservation be fixed at the time of the creation of the tenancy, for this may be determined afterwards.^ § 153, If the consideration is fraudulent, unjust, or immoral ; if, for instance, it is founded on a marriage brokage transaction, or be contemporaneous with a loan of money, and used as a means of evading the usury laws, the lease will be void : although in the latter case, the proposal for connecting the loan with the lease, move from the lessor.* But an under-lessee, not concerned in the loan, or cognizant thereof, will not be disturbed by such a consi- deration.^ Nor will a lease be set aside, merely on the ground of its being coiatemporaneous with an advance of money to the lessor, unless there be in addition, some evidence or legal pre- sumption, that the advance was made, as a meaijs of usury .^ As * Foot V. Berkley, supra, per Tirrel, J. " Failing v. Schenck, 3 Hill, K. 344 ; State v. Page, 1 Spears, E. 408. ' Denn v. Cartright, 4 East, R. 29. Chancellor Kent, 3 Com. 462, is of opinion, that the best way of reserving perpetual rents, and preserving uniformity in value, is to make them payable in wheat, or other produce. The ancient leases in New York, in the manor counties, are generally of this description. It saves the inter- est of the persons' in whose favor rent is reserved from sinking by the depreciation of money, owing to the augmentation of gold and silver, and the accumulation of paper credit. And Adam Smith observes, that such rents have preserved their value much better than those which have been reserved in money. * Browne v. O'Dea, 1 Sch. & Lef. 115 ; Ibid. 182, 310; Doe dem. Grimes v. Gooch, 3 Bam. & Aid. 664. * MoUoy V. Irwin, 1 Scho. & Lef. 310. Sed gucere de hoc, under the NewTorfc Usury Law. 6 Moore v. McKay, 1 Beat. 282 ; 12 Mees. & Wels. 602. 92 LAW OF LANDLORD AND TENANT. [CH. V. a general rule, however, a lease granted in consideration of a loan, will not, on principles of public policy, be allowed, to stand ; and, especially if any advantage has been taken by the lessee, of the distresses of the lessor, it will be considered a mere evasion of the statutes against usury .^ Still, as the taint of usury is only matter of inference, if it can be shown that no advantage has been taken by the lessee, but on the contrary, that the circumstances are such as render it unconscionable, on the part of the lessor, to seek to set aside the transaction, and that it would be a manifest hardship to the lessee, a court of equity will not interfere. If it were otherwise, the doctrine of setting aside leases, connected with a loan of money, might be converted by dishonest landlords, into an instrument of greater fraud, than that which it was de- signed to prevent.^ § 154. Rent must issue out of lands, or ,such things as are capable of livery, and may be distrained upon ; and, in general, cannot be reserved out of any thing lying in grant ; an incorpo- real hereditament ; a mere privilege, or easement ; nor out of a personal chattel. But a grant of rent, in respect to things incor- poreal, or personal property, may still operate as a contract, and bind the grantor .^ No particular, or technical form of words, is necessary to constitute a reservation of rent. A denlise, provided the lessee pay such a rent ; or in consideration of the rent afore- mentioned ; will be as effectual as if it contained the words yield- ing and paying, which are the usual words, for this purpose.* And, as to the person in whose favor it is reserved, it is, perhaps, best that the reservation should be in general terms, without saying to whom ; for, in that case, the law directs the intent, according to the nature of the lessor's interest. As if a lessee for years, makes an under-lease reserving rent to Turn and Ms heirs, during the term, it would, nevertheless, accrue to his exe- cutors ; for it is but a chattel interest, and not a freehold which only passes to an heir.^ Being an incident to the reversion, it 1 Morougli V. O'Dea, 1 Ball & Beat. 116 ; Corbet v. Seagrave, 2 Ibid. 101 ■ Sch. & Lef. 119, 190. ' 2 O'Brien v. Grierson, 2 Ball & Beat. 332 ; MoUoy v. Irwin, supra. 3 Spencer's case, 5 K. 17, b; Cro. Eliz. 256 ; Winslow v. Henry, 5 Hill, B. 481. 4 Brake v. Mundy, Cro. Car. 207 ; Caswell v. Districli, 15 Wend. E. 379 ' Knolles's case, Dyer, 5, b, 45 a; Co. Lit. 47, a. CH. v.] THE FORMAL PARTS OF A LEASE. 93 must follow the nature of the land out of which it is reserved, as if a man seized as heir on the part of his mother, demise land rendering rent to him and his heirs, it must go to heirs on the part of the mother.^ And where a husband is possessed of a term of years, in right of his wife, and demises, rendering rent, the rent after his death goes to his executors, and not to the widow.^ § 155. If a special reservation is made, care must be taken that it be to him from whom the estate in the land is derived ; ' for if a lessor reserve rent to himself and his wife, although this is good for his life, yet after his death, the wife, being a stranger, shall not have the rent ; * for the same reason, if it be reserved, not to the lessor but to Ms heir, it will be bad.^ But although rent, as such, cannot be reserved to a stranger, for the want of privity, such a reservation may be good as a sum in gross, for ■which an action of covenant will lie.® And if a man seized of a freehold make a lease for a term of years, to commence after his death, rendering rent to his heirs, this reservation will be good.^ If made to improper persons, the law follows the words ; as if the reservation be to the lessor and his executors, he having the free- hold, it will determine at his death, unless the land be devised to the executor ; because the reversion, to which the rent is incident, descends to the heir.* § 156. According to the old authorities, if a lease for years reserves rent to the lessor and his heirs, such rent will determine by the death of the lessor, for the heir cannot have it, as he could not succeed to the estate, being only a chattel ; and the executor cannot have it, there being no words to carry it to him.^ But it is not likely that our courts would now recognize such subtle dis- • Cother v. Merrick, Hard. 94. ' Co. Lit. 46, b ; Cro. Eliz. 278. ' Co. Lit. 47, a ; Hornbeck u. Westbrook, 9 Johns. E. 73 ; Ege v. Ege, 5 Watts, 138; 13 S. &E. 157. 4 2 Rol. Abr. 447, 1. 33. 6 8 Rep 70 ; Co. Lit. 99, b ; 213, b. • Erontin v. Small, Stra. R. 715 ; 1 Ld. Ray. 418. 7 Gates V. Frithe, 2 Eol. Abr. 447 ; Co. Lit. 99, b ; 213, b. 8 Hardr. R. 91 ; Sacheverell v. Froggatt, 1 Vent. R. 161. 9 1 Vent. 161 ; Mallory's Case, 5 Eep. 112 ; S. C. Cro. Eliz. 832. 94 LAW OF LANDLOED AND TENANT. [CH. V. tinctions, or hold otherwise than that the rent was, in all such cases, annexed to and would follow the reversion. Indeed, it has been since decided, that where a man seized of land in fee made a lease for years, reserving rent to him and his assigns during the term, such reservation should not determine by the death of the lessor, but the rent should go to his heir ; for though the heirs are not mentioned in the reservation, yet there were words which evi- dently declare the intention of the lessor, that the payment of the rent should be of equal duration with the lease, he having pro- vided that it should be paid during the term ; and, consequently, the rent must be carried over to the heir, who came into the inhe- ritance after the death of the lessor, and would have succeeded to the possession of the estate if no lease had been made. And it was stated in this case, that if the lessor had assigned over his reversion, the assignee should have had the rent as incident to it, because the rent was to continue during the term, and must there- fore follow the reversion, since the lessor made no particular dis- position of it separate from the reversion.^ And on a lease for years, reserving rent, during the term, to the lessor, his execu- tors, administrators, and assigns, the rent will go to the heir ; because the reservation being to the lessor and his assigns during the term, the words executors and administrators are void ; and the lessor having the inheritance, such express words discover the intent of the contract to be, that the lessee agreed to the pay- ment of rent to him during the continuance of the demise.^ § 157. Exceptions and Reservations. Exceptions are fre- quently introduced, to restrain, explain, or qualify general terms in a demise ; as a farm out of a manor, a close out of a farm, or the like. But an exception of that which is expressly granted is void ; as if a man demise a house and shops, excepting the shops ; or certain lands and underwoods thereunto belonging, excepting the underwoods ; or twenty acres, excepting ten acres ; in each of these cases the exception is void.^ So an exception of a thing to which the grantor has no right, is void ; and therefore a lessee for years or life, not being lessee without impeachment of waste, ' Sury V. Brown, Latch, 99 ; Isherwood v. Oldknow, 3 M. & S. 3S2. 2 Sacheverell u Froggatt, 2 Saund. E. 367 ; 2 Lev. 13 ; Eaym. 213 ; Vent. 161. ' Hob. 170; 3 Dy. 264, b, n, (40) ; 12 Madd. 14; Cro. Eliz. 244. CH. v.] THE FORMAL PARTS OF A LEASE. 95 cannot, on assigning over bis term, except to himself the timber- trees, tbe gravel or clay, or the benefit of the coal-mines -within the land.^ But a lessee without impeachment of veaste may make such an exception. So if he grant a less estate than his own; as if lessee for years underlet for a shorter term, or lessee for life make a lease for- years ; in either case, the wood, underwood, and trees growing upon the land, may properly be excepted ; for the mesne lessor remaining tenant, and continuing liable to his lessor, may thus secure to himself a remedy against the sub-lessee, in the event of his cutting down trees, or the like.^ If a lessor intends to retain a right of way over the demised property, he must expressly reserve it. A covenant by the lessee, to pull down the corner of the house leased to him, for the purpose of letting the lessor make a cart-way over the spot, will not confer such a right.^ And a reservation of a right of way on foot, and for cattle and sheep, does not give a right of way to carry manure, which implies drawing in a carriage.* § 158. A reservation is properly of some right or profit, to arise from the subject of the demise, which had previously no separate existence ; while an exception relates to some existing component part of the thing demised, which is capable of being severed or distinguished from it. As in the case of a demise of all that farm called A., except such a close ; the close would pass as part of the farm without the exception, and the words of excep- tion are considered the words of the lessor.^ But where there is a reservation in favor of the lessor, of a thing dehors the lease, as a way, common, or other profit ; or a proviso that it shall be law- ful for the lessor, at any time during the term, to cut and carry away the trees ; the words amount to a reservation, or an agree- ment on the lessee's part for the lessor's enjoyment, and not to an exception.^ An exception includes every thing dependent on it, and necessary for its enjoyment ; thus, if a lease reserve the 1 Saunders's Case, 5 Co. 12, a; Cro.Eliz. 683. 2 Bacon v. Gyrling, Cro. Jac. 296 ; 13 Co. 60 ; 1 Com. Dig. 607, Biens, H. » Good V. Hill, 2 Esp. 690. 4 Brunton v. Hall, 12 B. 792 ; S. C. 1 Ga. & Dav. 207. 5 BuUen v. Denning, 5 Bam. & Cress. 842. « Bush V. Cole, 12 Madd. 24 ; Cro. Eliz. 657 ; The Durham R. Co. v. 'Walker, 2 Ga. & Day. 326. 96 LAW OF LANDLORD AND TENANT. [CH. V. wood, &c., it includes the right to enter and carry it away.^ So, notwithstanding an exception in a lease of certain closes or rooms, which the lessee is not to use, he may pass and repass through them, if they are so situated that he cannot otherwise have the complete enjoyment of the premises demised to him.^ If there is a reason- able doubt as to the meaning of an exception in a lease, the words of the exception, being the words of the lessor, are to be construed favorably for the lessee and against the lessor. As in a lease of certain lands, excepting and reserving all timber-trees and other trees, but not the annual fruit thereof, it was held that the apple- trees were not within the exception.^ And if the exception is not specified with reasonable certainty, it is void altogether; as in the case of a demise of a manor, excepting one acre, without spe- cifying what acre.* A saving out of an exception defeats the exception to the extent of the saving ; and, therefore, if one let a manor for years, excepting the mansion-house, saving to the les- see a certain chamber, the chamber passes as if there had been no exception.^ § 159. As to Words of Demise. No particular form pf words is necessary to constitute a lease ; but whatever expressions explain the intention of the parties, that the one shall divest him- self of the possession of his property, and the other come into it for a certain space of time, are sufficient ; and will amount to a lease for years, as efiectually as if the most proper and pertinent form of words had been made use of for that purpose.® The usual terms, however, by which a lease is made are, " demise, grant, and to farm, let ; " but, according to Sir Edward Coke, the word dedi is sufficient to make a lease for years.'' And a covenant with a man to stand seized to his use, will operate as a lease at common law.^ So will a license to enter and enjoy land, or to • Cro. Eliz. 17 ; Earl of Cardigan v. Armitage, 2 Barn. & Cress. 207 ; S. C 3 Dow. & Ry. 414. '11 Co. R. 52, a,. ' BuUen v. Denning, supra; Shep. Touch. 100 ; 2 Bam.& Cress. 206. * Dorrell v. Collins, Cro. Eliz. 6. s Leigh V. Shaw, Cro. Eliz. 372 ; 3 Dy. 264, b, n, (40.) " Hallett V. Wylie, 3 Johns. R. 47 ; Thornton v. Payne, 5 Ibid. 74; Bac. Abr. tit. Lease ; Merrick v. Lewis, 3 McCord, R. 211. ' Co. Lit. 301, b. 8 Right dem. Bassett v. Thomas, Burr. E. 1446. CH. v.] THE FORMAL PARTS OF A LEASE. 97 reside in a certain house.^ And where a man, by Ms will, declared, " I have made a lease to J. S. for twenty-one years, he paying but twenty shillings rent ; " it was held a good lease for twenty-one years, and that the word have should be taken in the present tense, and equivalent in signification to the word grant in a deed of feoiFment, by which the party is estopped from denying the creation of the estate.^ An agreement that A. shall have, occupy, and enjoy land, will enure as a lease, if it appears to be the intention of the parties to create a present relation of landlord and tenant.^ But if a forfeiture would be incurred by making a lease, and the intent of the parties does not clearly appear, the courts will construe it as an agreement for a lease, and not a lease.* And it has been held, that if the owner of pre- mises sells and transfers them by a written instrument, and there is also a separate agreement between himself and the vendee, (founded on a sufficient consideration other than the sale of the premises,) that a third persoi; shall be tenant to the vendee from year to year ; this agreement being collateral to the sale, and not a condition thereof, creates such a tenancy, though not inserted in the instrument.^ § 160. Description of Premises. An accurate description of the premises is important, for the purpose of passing all the pro- perty intended to be comprised in the lease. But it is not, in general, advisable to particularize too minutely all the various cir- cumstances of name, place, boundaries, and occupation ; such only as are sufficient for the purpose of identity should be intro- duced, for where numerous circumstances are referred to, ques- tions frequently arise, how far they must concur in distinguishing the demised premises, and to what extent words of particular explanation may qualify words of general description. § 16^. The grant of a thing passes the incident as well as the 1 1 Madd. E. 14 ; Right dem. Green v. Proctor, Burr. 2209. ^ 2 Bend. 7. That a recital in a will is an estoppel to all claiming under the will, see Denn v. Cornell, 3 J. C. K. 174. 3 Hallett V. Wyllie, supra, 1 Eol. Abr. 847, 1. 40 ; Cro. Jac. 92 & 172 ; 2 Madd. K. 79 ; 5 Term E. 163. * Lady Montague's Case, Cro. Jac. 301. ^ Doe dem. Jacklin v. Cartright, 4 East, E. 29. 9 98 LAW OF LANDLORD AND TENANT. [CH. V. principal, though the latter only is mentioned; and this effect cannot be avoided without an express reservation.'^ Thus a mes- suage, or mansion, includes not only the dwelling-house but all the outhouses, barns, stables, cow-house, and dairy, if they be parcel of the mansion, although they be not under the same roof, or lie contiguous to it.^ A garden is parcel of a house, and passes without the addition of the word appurtenances fi By the grant of a piece of ground, a right of way to it, over the grantor's land, also passes. So a grant of trees carries a power to enter on the land, and cut and carry them away.* The word land passes all that grows or is built upon its surface. Kfarm includes houses and lands ; while a grange will include not only barns, but stables and outhouses used for the purpose of husbandry.^ But the demise of a house or barn, without other words to extend its mean- ing, will pass no more land than is necessary for its complete enjoyment.^ Mere lodgers are entitled to the use of the knocker and door-bell, skylight and water-closet, unless any of them are excepted out of the agreement.'^ <§> 162. This principle, however, is to be understood as apply- ing to such things only as are directly incident to the grant, and necessary to the enjoyment of the thing granted ; therefore, an easement not naturally and necessarily belonging to the premises, will not pass.^ And if a man, upon a lease for years, reserve a way through the house of the lessee to a backhouse, he can only use it at reasonable times, and upon request.® A way of neces- sity is also limited by the necessity which created it ; when the necessity ceases, the right of way also ceases. If, therefore, at any subsequent period, the party entitled to such way can, by passing over his own land, approach the place to which it led by as direct a course as he would have done by using the old way, the way ceases to exist as of necessity.'" 1 Pattison v. Hull, 9 Cow. 747 ; Evans v. Eees, 12 Ad. & El. 57. 2 1 Hale, 558 ; 2 Stark. R. 508. " Bettisworth's Case, 2 Co. 32 ; Plow. 171 ; 1 Inst. 5, b. * Per Best, C. J., 2 Blng. 83 ; Cro. Jac. 170. 5 Co. Lit. 4, a ; Cro. Jac. 648 ; Isham v. Morgan, 9 Conn. 374. 8 Bennett v. Bittle, 4 Eawie, R. 330. ' Underwood u. Burrows^ 7 C. & P. 26. ' Manning v. Smith, 6 Conn. R. 289. " Per Parke, B., 6 M. & W. 189. w Holmes v. Goring, 2 Bing. 76; 5 M, & E. 448 ; 7 C. & P. 761. CH. v.] THE FORMAL PARTS OF A LEASE. 99 § 163. Whether certain premises are parcel of and included under those demised, is always matter of evidence.^ But where a demise is by indenture, the parties are estopped from disputing that the stg,te of the premises was the same as described in the lease ; as, for instance, that land described as meadow was such.^ So natural, visible, or artificial boundaries will prevail over speci- fied courses and distances ; since these are less certain than the former.^ As in a demise of a certain tract of land on a creek, supposed to contain twenty acres more or less, then in the posses- sion of a certain person ; it was held that the lease was not limited to the twenty acres, but extended up to the creek of which the party was in possession.* Where the quantity is mentioned, in addition to a description of the boundaries of land, without any express covenant that the land contains that quantity, the whole must be considered as mere description.^ If the description refers to another deed, it may be made sufiSciently certain by the refer- ence.^ § 164. If the description of the premises in a deed is imperfect, yet sufficient appears to point inquiry to the true locality and boundary of the land, the deed is not void for uncertainty, but the defect may be cured by parol evidence, to give identity to the premises intended to be conveyed.^ And, where there are particulars, sufficiently ascertained to designate the thing intended to be demised, the addition of circumstances false or mistaken will not frustrate the deed. As, if the words "with the dwelling- house thereon," be inserted in the description, when, in fact, there is no dwelling-house on the premises, it will be considered merely a false circumstance, which does not control the rest of the de- 1 Doe dem. Freeland v. Burt, 1 Term R. 701. 2 Birch «. Stevenson, 3 Taunt. E. 469. " Doe V. Thompson, 5 Cow. E. 371 ; 7 Ibid. 723 ; 9 Ibid. 661 ; MassengiU v. Boyle, 4 Humphrey, 205. * Hall V. Powell, 4 Serg. & Eawle, 456 ; Shaw v. Clements, 1 Call. (Penn.) E. 438; Baslin v. Christie, Taylor, (N. C.) E. 116; Baker v. Glasscock, 1 Hen. & Mumf. (Va.) E. 177. 5 Powell V. Clark, 5 Mass. E. 355. 8 Allen V. Bates, 6 Pick. E. 460. Punctuation will be resorted to, in order to settle the meaning of an instrument, after all other means fail. Ewing v. Burnet, 11 Peters, E. 41. 1 Jenkins v. Bodley, 1 Smedes & M. E. 338. 100 lAW OP LANDLORB AND TENANT. [CH. V. scription, or defeat the conveyance.^ An indorsement upon a lease, written at the time of its signing and delivery, is deemed to be incorporated in it, and may, therefore, introduce any matter tending to qualify the provisions contained in the body of the instrument, or even to defeat it by way of condition.^ Even sepa- rate instruments, executed at the same time, relating to the same subject-matter, may be construed, and taken together, as differ- ent parts of the same agreement.^ But a written declaration indorsed on the lease, after execution by the lessor, that he intended to demise a greater interest than the lease expresses, is inoperative to convey any interest.* Nor will any other indorse- ment made upon an instrument under seal, after its execution, in any manner control or affect the original deed, unless such indorse- ment be under seal also ; for a deed is incapable of discharge, but by an instrument of as high a nature.^ 1 Jackson v. Clark, 9 Johns. K. 147; Jackson v. Marsh, 6 Cow. 281. As gene- ral rules of construction, it may be observed, that written documents are themselves the best evidence of the facts they contain, the circumstances they relate, and the intentions they declare. Regard is to be had to all their parts ; and general words may be restrained by particular recitals. If a lease operates two ways, the one consistent with the intention of the parties, and the other repugnant to it, effect will be given to the intent ; for deeds are always to be construed so as to operate according to the intention of the parties, if by law they may; and if they cannot operate in one form, they shall in another. Quackenboss v. Lansing, 6 Johns. R. 49; Marvin v. Stone, 2 Cow. R. 781 ; 2 B. & P. 13; 4 Moore, 448; Cowp. 600. Where a material word appears to have been omitted in a lease, by mistake, and other word.s cannot have their proper effect unless it be introduced, such lease must be construed as if that word were inserted, although the particular passage where it ought to stand, conveys a sufficiently distinct meaning without it. White v. Eagan, 1 Bay, R. 247 ; Wight v. Dickson, 1 Dow. R. 141. A sweeping clause, at the end of a particular specification, will not pass any property of a different nature from that particularly set forth. Smith v. Strong, 14 Pick. R. 128; Bar- nard V. Martin, 5 N. H. R. 536. An instrument of demise, agreed to let for a year, but most of the subsequent stipulations were inapplicable to a tenancy determina- ble by a notice to quit ; it appeared on its face to have originally contained words creating a tenancy from year to year, which had been struck out ; such words were allowed to explain the intention of the parties to have been to lease for a year only; and that the terms inapplicable to such a tenancy, must be expunged, or as only applicable in case the tenancy should continue. Strickland v. Maxwell 2 Crom. & Mees. 539 ; 4 Tyr. 346 ; Hull v. Fuller, 7 Verm. 100. 2 Flint V. Brandon, 1 New R. 73 ; Syburn v. Warrington, 1 Stark. R. 162 ; Em- erson V. Murray, 4 N. H. R. 171. 3 Hills V. Millar, 3 Paige, R. 254. * Riissell V. Scott, 9 Cow. R. 279; 4 M. & S. 30; Williams v. Handley, 3 Bibb, E. 10. 5 Goodright dem. NichoUs v. Mark, 4 M. & S. 30. CH. v.] THE EXECUTION OE A LEASE. 101 § 165. As a general rule, the unauthorized alteration of an instrument, by one claiming a benefit under it, avoids it so far as respects any remedy by action on it ; and this, whether the alter- ation be material, or of a part quite immaterial. Though it is otherwise if the alteration is made by a stranger, without the con- sent of the party .1 The rule, however, has not the same applica- cation, where the title to real estate is in question ; for neither the alteration nor the destruction of a deed, will devest property which has once become vested by a transmutation of possession ; although the covenants contained in ' such deed will be thereby rendered void. Where an estate cannot have existence but by deed, and the deed creating such estate is fraudulently destroyed by the party possessing the estate, the deed is void as to any remedy in favor of the fraudulent party ; and the estate which he derived under it, is also gone. But, as to an estate which may exist without deed, such as a rent, or other incorporeal heredita- ment, a fraudulent alteration or cancellation destroys the deed, with the covenants, but not the estate. And, as a rent charge can only be created by deed, a fraudulent alteration of such deed, destroys both the deed and the estate. Where, however, a rent was created by indenture, with a counterpart, each being executed by both parties, one being delivered to and possessed by each, the grantee of the rent altered his deed in a material part ; yet it was held, that though a deed is essential to a rent as lying in grant, neither the remedy nor the estate of the grantee was gone, for although the alteration of the grantee's deed avoided that, yet both deeds being originals, that was a good deed in the hands of the grantor to support both the contract and the estate.'^ Section II. The Execution of a Lease. § 166. The execution of a lease consists in its signing and delivery, if it be a parol contract, or in its sealing and delivery, 1 Bees V. Overbaugh, 6 Cow. E. 746. 2 Lewis V. Payn, 8 Cow. E. 71 ; Bottom v. the Bp. of Carlisle, 2 H. Bl. E. 250 ; and see Davidson v. Cooper, 13 M. & W. 343. 9* 102 LAW OF LANDLORD AND TENANT. [CH. V. if it be by deed. When a seal is required, it must, in New York,^ New Jersey ,2 and the New England States,^ be according to the common law form, which is an impression upon wax, or wafer, or some other tenacious substance, capable of being impressed.* A mere stamp on the paper, without the use of wax or wafer, is insufS- cient ; ^ nor will a piece of wax, without an impression upon it, suflBce ; for mere wax, without a character, is no seal.^ In Penn- sylvania, Indiana, and Ohio, a mere flourish with a pen, at the end of the name, a circle of ink, or a scroll, is allowed in place of a seal, when it appears to have been intended as such.'' In Vir- ginia and Alabama, it must appear in the body of the deed, that there was an intention to substitute the scroll for a seal.^ In Maryland, a scroll has always been considered a seal, and it need not appear, that the party intended to adopt it.^ While in South Carolina, it is good, unless the intention to seal in a more formal manner, can be presumed from the face of the instrument.^" • Ken- tucky has substituted a scroll, for a wax or wafer impression, by statute .^1 In all the latter decisions, much force is given to the attestation clause, if this purports that the instrument was designed to be a sealed instrument, and there is any thing aflSxed to it or appearing upon it, which by law may be regarded as a seal, it will prima facie be taken to be a deed ; and proof of the party's signa- ture by the subscribing witnesses, if there be such, or in any other legitimate mode, will be presumptive evidence that he sealed it.^^ As to the number of seals required to a deed, there appears to be no necessity for a multiplicity of them ; nor that, when executed by several persons, each person shall have a separate seal ; for seve- 1 "Wan-en v. Lynch, 5 Johns. R. 239. - Perrine v. Cheeseman, 6 Halst. K. 174. 3 4 Kent's Com. 445. * Beardsley ;;. Knight, 4 Verm. E. 471. 5 Bank of Rochester v. Grey, 2 Hill, N. Y. E. 227 ; 3 Ibid. 493. Except in New York, where the seal of a corporation may bo/ stamped on the paper, without wax or wafer. Laws of 184S, p. 305. 5 Perry v. Price, 1 Miss. 553 ; 2 Bl. Com. 297. ' Alexander v. Jameson, 5 Binn. E. 238; 3 Blackf. 161; Jones v. Logwood, 1 Wash. E. 42. 8 Austin V. Whitlock, 1 Munf. E. 487; Lee v. Adkins, 1 Minor, 187. « Frasher v. Everhart, 3 Gill & Johns. E. 234; 7 Ibid. 284. l» Ealph V. Gist, 1 McCord, E. 267. w Bohanans v. Lewis, 3 Monroe, E. 376. 12 Supra, and see Ball v. Taylor, 1 C. & P. 417. CH. v.] THE EXECUTION OE A LEASE. 103 ral persons may bind themselves by one seal, if it appears that the seal affixed, was intended to be adopted as the seal of each of the parties.' § 167. A deed takes effect, so as to rest the estate or interest to be conveyed, only from its delivery to the party himself, or to a third person, authorized to receive it.^ If it requires the appro- bation of a third person to render it valid, it becomes operative from the time the approval is given, though executed before.^ Almost any manifestation of the party's intention to deliver, if accompanied by an act importing the same, -will constitute a deli- very. If the date be false or impossible, the delivery ascertains the time ; but it shall be intended to be delivered on the day it bears date, unless the contrary be proved ;* notwithstanding it was not acknowledged until afterwards.^ There can be no deli- very, however, without an acceptance, either express or implied.^ And the assent of the grantee will be presumed only from the beneficial nature of the transaction.^ § 168. It is not essential to a valid delivery, that the lessee be present, and that it be made to, or accepted by him personally, at the time ; for his acceptance may be presumed from many cir- cumstances.^ Thus, the registry of a deed, at the request of the grantor, for the use of the grantee, and the grantee's subsequent assent thereto, will be equivalent to an actual delivery of the same.^ But the grantor's placing the deed on record, is only 1 Mackay v. Bloodgood, 9 T. K. 285 ; McDiU u. McDUI, 1 Dal. R. 63 ; 2 Dev. 493 ; 4 T. K. 313 ; 1 Blackf. 241. 2 Jackson v. Hill, 5 .Wend. E. 532. s Co. Lit. 36 ; Church v. Gilman, 15 Wend. E. 656 ; 1 E. S. 738. * 1 Vesey, Jr. 206 ; 2 Bl. Com. 307 ; 1 Johns. Gas. 250. Since the Eevised Statutes of New York, the presumption that a deed was delivered on the day it bears date, does not prevail in respect to deeds not acknowledged or proved, and which have no subscribing witness. And such presumption never obtains where the deed is proved to have been in the hands of the grantor, at a period subsequent to its date. Elsey v. Metcalfe, 1 Denio, E. 323. 5 McConnell ;;. Brown, Litt. Sel. Ca. 459. " Jackson v. Eichards, 6 Cow. E. 617; Jackson u. Phipps, 12 Johns. E. 421 ; Shep. Touch. 57. ' Jackson v. Bodle, 20 Johns. E. 187 ; Belden v. Carter, 4 Day, E. 66 ; Wheel- right V. Wheelright, 2 Mass. E. 447 ; Maynard v. Maynard, 10 Mass. E. 456. 8 Hatch V. Hatch, 9 Mass. E. 307. 9 Hedge v. Drew, 12 Pick. E. 141 ; Elsey v. Metcalf, 1 Denio, 323. 104 LAW OF LANDLORD AND TENANT. [CH. V. p-ima facie evidence of its delivery;^ and not even that, if there does not appear to be some assent on the part of the grantee ; but a subsequent possession of the deed, by the grantee, would be evidence of delivery to him.^ Putting a deed in the post-office, directed to the grantee, has been held to be a sufficient delivery.^ And where a registered deed, purporting to have been delivered, is lost, the presumption is, that it was delivered ; but this pre- sumption is rebutted, if the original deed is produced by the grantor, or if neither the grantee, nor any person on his behalf, was present at the attestation.* The non-delivery of a deed may- be shown by parol evidence ; ^ and the grantee is an admissible witness for that purpose.^ But its delivery cannot be proved, by showing the declarations of the grantor's intention to deliver prior to its delivery, and of the subsequent possession of the land by the tenant, with the assent of the grantor.^ § 169. A lease may also be delivered as an escrow, which means a conditional delivery to a stranger, to be kept by him until certain conditions are performed, and then to be delivered over to the grantee. Until the condition is performed and the deed delivered, the estate does not pass, but remains in the grantor ; but when the condition has been performed, and the deed is finally delivered, it will take effect from the time of its first delivery.^ And if it be duly delivered in the first instance, it will operate, although the grantee afterwards suffer it to remain in the custody of the grantor.^ But there cannot be a delivery to the grantee himself as an escroiv, to take effect upon the per- formance of a condition not expressed in the deed ; and if so deUvered, it becomes at once absolute in law.-''' Neither can it be delivered to a third person to be kept during the pleasure of the 1 Chess V. Chess, 1 Penn. E. 32. 2 Maynard v. Maynard, 10 Mass. E. 456 ; 12 Ibid. 456. 5 McKinney v. Ehoads, 5 "Watts, R. 343. * Powers V. Eussell, 13 Pick. E. 69. ^ Eoberts v. Jackson, 1 -Wend. E. 478. 8 Jackson v. Richards, 6 Cow. E. 617. 7 Hale V. Hills, 8 Conn. R. 39. 8 Euggles V. Lawson, 13 Johns. E. 285 ; 2 Johns. K. 248 ; 3 B. & C 317 ; 6 Mod. E. 217 ; 3 Prest. Abstr. 104. 9 1 Johns. Ch. E. 240; B. & C. 671. 10 Arnold v. Patrick, 6 Paige, E. 310. CH. v.] THE EXECUTION OP A LEASE. 105 parties, and subject to their further order ; such a delivery is not an escrow, but a mere deposit.^ And a deed, actually delivered by an agent, to one for -whom it is made, is no longer an escrow, though placed in the hands of such agent, under an agreement that it should be considered an escrow? But a deed, delivered as an escrow, will not take effect until the condition is performed, except where the operation of the conveyance would be absolutely defeated, unless the first delivery should be permitted to have effect.^ § 170. The execution of a lease by parol, is complete without a witness ; but when the lease is by deed, two witnesses are required, for its valid execution in New Hampshire, Vermont, Rhode Island, Connecticut, Ohio, Pennsylvania, Georgia, Illinois, and Indiana. In Delaware, Tennessee, and South Carolina, two ■witnesses are necessary where the deed is to be proved by wit- nesses.* But by the common law which prevails in Pennsylvania, Kentucky, and Maryland, as well as in New York, no attesting witness is necessary to the validity of a deed.^ In New York, proof of its execution, made by one witness, or its acknowledgment before the proper officer, without any Avitness, is sufficient to entitle it to be recorded. "Every grant of a freehold estate, shall be sub- scribed and sealed by the person from whom the estate is intended to pass, &c. ; and if not duly acknowledged previous to its delivery, its execution and delivery shall be attested by at least one wit- ness, or if not so attested, it shall not take effect as against a sub- sequent purchaser or incumbrancer, until so acknowledged." ^ § 171. The statute laws of every State in the Union require all conveyances of land, except certain chattel interests, to be recorded, after being first acknowledged or proved, and with slight modifications agree with the laws of New York in this respect.^ In New York, all conveyances of land, except leases, not exceed- 1 James v. Vandorheyden, 2 Paige, 385. 2 Simonton's Estate, 4 Watts, 180. 5 Jackson v. Rowland, 6 Wend. E. 666. * 4 Kent's Com. 449. 5 Ibid. ; Wicks v. Caulk, 5 Har. &. Johns. ; 1 S. & E. 72 ; 6 Peters, 124. 6 1 N. Y. E. S. 731, § 137. ' 4 Kent's Com. 448. 106 LAW OF LANDLORD AND TENANT. [CH. V. ing three years, must be recorded in the county in which the premises are situated, and if not so recorded, are void as against any subsequent incumbrancer or purchaser of the same premises, in good faith, and for a valuable consideration, whose conveyance shall be first duly recorded.^ There is nothing, however, in any statute, to invalidate a lease as between the parties themselves, which has not been recorded. The statute was intended to pro- tect ho7ia fide purchasers of property against secret or fraudulent conveyances, but giving this protection only to such as record their conveyances, and thus warn others from taking a subsequent conveyance of property which has already been conveyed to them.^ It is also to be observed, that although the recording a deed is constructive notice of its existence to all the world, yet a subse- quent grantee or lessee, who has recorded his lease, will not be entitled to a preference over a prior lessee, provided he had actual notice of the first lease, at the time he took his conveyance ; for actual notice of a deed is equivalent to recording it.^ 1 1 R. S. 762, § 38, Except leases in the counties of Albany, Ulster, SulliTan, Herkimer, Dutchess, Columbia, Delaware, and Schenectady, which need not be recorded. Ibid. 2 Jackson dem. Merrick v. Post, 9 Cow. R. 120; 10 Johns. R. 466. = Tuttle V. Jackson, 6 Wend. R. 213; Jackson v. Cady, Ibid. 140; State of Connecticut v. Bradish, 14 Mass. R. 296 ; 4 Greenl. 20; Tart v. Crawford, 1 Mc- Cord, R. 265; West v. Randall, 2 Mason, R. 206; Colby v. Kenniston, 4 N. H. E. 262; Jackson v. Winslow, 9 Cow. R. 3 ; Jackson v. Phillips, Ibid. 94-120. CH. VI.] RIGHTS AND LIABILITIES INCIDENT TO TENANCY. 107 CHAPTER VI. OF RIGHTS AND LIABILITIES GENERALLY INCIDENT TO A TENANCY. § 172. Before proceeding to examine the particular rights and liabilities of the respective parties to a tenancy, it may be found neither impertinent nor unprofitable to consider some of those obligations of a general character, which are necessarily incident to the relation of landlord and tenant, but which do not usually fall within the scope of the covenants, which the parties generally employ for the purpose of defining their respective rights and duties. Upon the making of a lease, rights and liabilities attach to each of the parties, not only in respect to each other, but also as regards other persons who are strangers to the contract. The landlord retains certain rights over the property, although he has parted with his possession ; while the tenant assumes obliga- tions as soon as he is clothed with that character. By virtue of his occupation, a tenant may become liable to support and repair bridges, highways, division-fences, and party-walls ; to make good any damage that may be occasioned by his neglect to keep the premises in a safe condition, or to use them in a reason- able and prudent manner. His possessory interest will enable him to defend himself against all trespassers upon his premises, as well as against a disturbance, nuisance, or other offensive erection so near his dwelling as to render it useless or unfit for habitation. If there are ways, commons, fisheries, or other privileges or ease- ments attached to the estate, they must be used in such a manner as not to infringe upon the rights of others, who are equally enti- tled to the enjoyment of them with himself. And supposing him to have a right to remove buildings, or to mine and dig the soil, he i§ not to do so without considering what effect such operations will produce upon the adjoining house or land. We propose cur- sorily to examine each of these rights and duties in their order. 108 liAW OF LANDLORD AND TENANT. [CH. VI. Section I. On the Part of the Landlord. § 173. In case an injury is done to the premises by a stranger, tlie landlord may have an action against him, provided it is of such a nature as affects his reversion ; for a damage that would affect the reversion is not only injurious to the possession, but would, in the ordinary course of things, continue to be so on the determination of the lease. ^ Thus he may recover against one who stops up a rivulet, whereby the timber on the estate becomes rotten.^ But the injury must be of a character that permanently affects the inheritance.^ A mere disturbance, if not of a con- tinuous nature, even though done in the assertion of a right, will not entitle the reversioner to an action upon it.* But if any one interferes with his tenants so as to disturb their enjoyment, and thereby causes damage to the landlord,^ he may have his action ; and if the disturbance is continued, he may, from time to time, bring a fresh action.^ If a stranger enters upon the premises and cuts down trees, the landlord, immediately upon the sever- ance, acquires such a right of possession as will enable him to recover them in an action of trover.'' He may not, however, bring trespass for an injury to the land while there is a tenant for years lawfully in possession ; ^ for the ground of this action is injury to the possession, and the plaintiff must be in either the actual or constructive possession when the trespass is committed. § 174. The landlord generally retains the right to go upon the 1 Starr v. Jackson, 11 Mass. E. 519 ; Jackson v. Pesked, 1 M. & S. 234 ; Burr. 2141 ; Alston v. Scales, 9 Bing. 3 ; 4 B. &. A. 72 ; Bower v. Hill, 1 Bingh. N. C. 555 ; Little v. Pallister, 3 Greenl. 6. 2 Bedingford v. Onslow, 3 Lev. 209. 3 Queen's College, Oxford, v. Hallett, 14 East, K. 489. * Baxter v. Taylor, 4 Barn. & Aid. 72. 5 Aldridge v. Stuyvesant, 1 Hall, E. 214. 6 Shadwell v. Hutchinson, 2 B. & Ad. 97. 7 Bewick v. "Whitfield, 3 P. Wms. 267 ; Berry v. Head, Palm. 327 ; S. C. Cro. Car. 242. - 5 Campbell v. Arnold, 1 Johns. E, 511 ; Tobey v. Webster, 3 Ibid. 408 ; Catlin V. Heyder, 1 Ver. E. 375. OH. VI.] ON THE PART OF THE LANDLORD. 109 premises peaceably, for the purpose of examining what waste or injury has been committed by the tenant or other person, first giving notice, however, of his intention ; also to use all ivays appurtenant thereto, demand rent, make such repairs as are neces- sary to prevent the waste of the premises, or to remove an obstruc- tion.^ But where the rent is payable in hay or other produce, to be delivered from the farm to the landlord, he is not entitled to take the hay until it is delivered to him by the tenant, or severed and set apart for his use.^ If the tenant acquiesce in the wrong- ful act of a stranger, it will not bind the landlord when he regains possession ; ^ as if a tenant for years suffer windows, newly opened by his neighbor, to remain unobstructed for more than twenty years, and so become ancient lights, the landlord, at the expiration of the term, will not be bound thereby, but may shut up the lights, or treat them as if they had been newly opened.* § 175. The landlord's liabilities, in respect of possession, are in general suspended as soon as the tenant commences his occupa- tion; if, therefore, a stranger be injured by the ruinous state of the premises, or if the fences are suffered to fall into decay, whereby a stranger's cattle stray, and are injured or lost, the landlord is, in neither case answerable.^ But it is otherwise if he has undertaken to keep the premises in repair, and the injury was occasioned by his neglect to make the necessary repairs,^ or by the negligence of the workmen whom he had employed to make such repairs.^ Nor is he answerable to third persons for a nuisance erected on the premises by the tenant ; but if he renews the lease. '' Proud V. Hollis, 1 B. «& C. 8 ; Perley v. "Watts, 7 Mees. & Wels. 601 ; 7 Pick. E. 76. The doctrine of the text, however, seems to have heen questioned in Eng- land, where it has been held that an immediate lessee may recover, as special damages, from an under-lessee who holds under similar covenants, the costs of defending an action, as well as the damages under it, brought by the original les- sor for want of repairs ; because, during the term of the under-lessee, he could not have entered for the purpose of repairing without making himself a tres- passer. Neale v. Wyllie, 5 D. & E. 442 ; 3 B. & C. 533 ; 3 C & P. 557 ; 6 Ibid, 195. 2 Dockham v. Parker, 9 Greenl. E. 137. 3 Jesse V. Gifford, Burr. 214. * Daiiiel v. North, 11 East, 372. 6 Cheetham v. Hampson, 4 T. E. 318. s Payne v. Eogers, 2 H. Black. 350. ' Leslie v. Pounds, 4 Taunt. 649. 10 110 LAW OF LANDLORD AND TENANT. [CH. VI. or grants another lease "with the nuisance upon it, he becomes liable after such renewal, for he ought not to let the land with a Section II. On the Part of the Tenant. § 176. We have seen that the rights and liabilities of a tenant for life attach upon the execution and delivery of the lease ; but, in the case of a lease for years, they commence upon the making of the contract. Before the tenant enters into possession, there- fore, he acquires a vested interest in the term, whether the lease is to commence at once or on a future day.^ This interest is assignable, and, in case of the death of the lessee before taking possession, will pass to his executors or administrators. If, how- ever, a person entitled to an estate for years, to commence in futuro, once enters, and is put out of possession, he cannot after- wards assign his term to a stranger ; for, by his entry, the estate for years became actually executed, and being after that defeated by the entry of a stranger, the lessee has only a right of entry left in him, which the policy of the law will not suffer him to transfer, because it is a mere right of action.^ His term of years is liable to be sold under an execution against him, like any other chattel ; although the judgment is not a lien upon it, either at common law or by statute.* He may also underlet, unless he is restrained by the terms of his lease from doing so.^ And he becomes responsible for all his covenants in the lease from the time the term commences, although he refuses to take possession of the property.^ § 177. If the landlord refuses to give him possession, pursuant 1 The King v. Pedley, 1 Ad. & El. 827. 2 Whitney v. Allaire, 1 Comst. K. 305. 8 Cro. Eliz. 15 ; 5 Eep. 124, a; 2 EoU. Abr. 850. * Ex parte Wilson, 7 Hill, (N. Y.) R. 150 ; 7 Wend. 466; 17 Ibid. 674 : 20 Ibid. 416. ^ Jackson v. Harrison, 17 Johns. R. 66. " Ballasis v. Burbriche, Ld. Ray. 17 ; Holt, 199 ; Doug. 461. CH. VI.] ON THE PART OP THE TENANT. Ill to the agreement, he renders himself hable to an action for damages. And though the agreement of letting is delivered over, after signing, to the party interested, with a stipulation that such delivery is subject to the landlord's being satisfied with the refer- ence given him by the tenant ; it is a proper question for a jury, in an action for the non-performance of the agreement, whether, inquiry having been made, the answer given by the party referred to was such as reasonably satisfied the condition ; the landlord having declared it was not satisfactory to him, and having on that ground refused to let the tenant into possession. And in such action the plaintiff may give evidence of any particular loss sus- tained by the breach of such an agreement, if he has made a sufiicient averment of loss in his declaration.^ § 178. On taking possession, he is at once invested with all the rights incident to possession, and is entitled to take such reason- able estovers and emblements as are attached to the estate, unless restrained by special agreement. He may maintain an action against any person who disturbs his possession, or trespasses upon the premises, even to the exclusion of the landlord ; who has, in general, no right to enter and repair, unless there be a stipulation to that effect, or the repairs be necessary to prevent waste .^ If a stranger enters and commits waste, he will still be liable to an action for waste by his landlord, and will be left to his remedy over against the stranger.^ Even after his term has expired, he may recover damages for an injury sustained during its continuance.* As occupant, also, he is prima facie liable to answer for any neglect in the repair of highways, fences, or party walls; it being generally sufficient, except where the statutes have other- wise provided, to charge a man for such repairs by the name of occupant.^ 1 "Ward V. Smith, 11 Price, R. 19 ; Coe v. Clay, 3 Moore & Pay. 57 ; 5 Bingh. 448. 2 Leader v. Noxon, 3 Wils. R. 461 ; 3 Lev. 209 ; 2 Black. R. 924 ; 2 B. & Ad. 97 ; Barker v. Barker, 3 C. & P. 557. 3 Cook V. The Champlain Tr. Co. 1 Denio, 91. * 2 Roll. Abr. 551 ; Symonds o. Seabourne, Cro. Car. 325 ; 3 Lev. 209 ; Holtj N. P. C. 543. 5 Regina v. Bucknall, Ld. Ray. 792; Rider v. Smith, 3 Term R. 766 ; 4 Ibid. 318. 112 LAW OF LANDLORD AND TENANT. [CH. VI. § 179. He must be careful to preserve tte boundaries of tbe land demised to bim ; for if be permits tbem to be destroyed, so tbat tbe lessor's premises cannot be distinguished from bis own, he must either restore the land specifically, or give him other land of equal value. And this obligation extends to cases where there are several co-lessees.^ He is also bound to the performance of all such duties as tbe ordinances of any city or town may from time to time impose upon him, by virtue of his residence within the bounds of such incorporation.^ § 180. The tenant must also regard the interest of his landlord in respect to his right of possession, and give due notice of any attempt made to dispossess him. The Revised Statutes of New York oblige every tenant to whom a declaration in ejectment, or any other process, proceeding, or notice of any proceeding, to recover the land occupied by him, or tbe possession thereof, shall be deli- vered, forthwith to give notice thereof to his landlord, under the penalty of forfeiting three years' rent of the premises so occupied by him, which may be sued for and recovered by the landlord, or person of whom such tenant bolds.^ And tbe attornment of a tenant to a stranger is absolutely void, and shall not in anywise affect the possession of his landlord, unless it be made, — 1. With the consent of the landlord ; 2. Pursuant to or in consequence of a judgment at law, or the order of a court of equity ; or, 3. To a mortgagee after the mortgage has become forfeited.* § 181. At common law, any person, in case of actual necessity and to prevent the spreading of a fire, might prostrate a building 1 Attorney-General v- ruUerton, 2 Ves. & B. 263 ; Willis v. Parkinson, 'l Swanst. 49. 2 Rex V. St. Lukes, Burr. 1053 ; Milwood v. Coffin, Black. E. 1320 ; 3 B. & A. 21. 8 1 E. S. 748, § 27. * Ibid. 744, § 3. "Whereyer the relation of landlord and tenant shall have existed between any persons, the possession of the tenant shall be deemed the possession of the landlord, until the expiration of twenty years from the termina- tion of the tenancy ; or, where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent ; notwithstanding such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. But such presumption shall not be made after the periods herein limited." 2 R. S. 294, § 13. CH. VI.] ON THE PART OF THE TENANT. 113 in a block or street, without being responsible in trespass or other- wise. The sufferer had no legal redress for any injury he might have sustained, against the individual doing the act.^ But it was at the same time admitted, that the injured party, in case his pro- perty was taken and destroyed under those circumstances, was entitled to full compensation from the public .^ The Constitution of the United States affirms the common law principle, and pro- vides that private property shall in no case be taken for the public use, without just compensation being made.^ Not only are the rights of the owner of the building protected, but the principle extends to the protection of the tenant's interest also ; who is entitled to recover damages from the public treasury, not only for his interest in the building, but also for the merchandise, or other personal property belonging to him, which was in and destroyed with the building. This was decided in a case arising out of the great fire which occurred in the city of New York, in December, 1835 ; where the court fully recognized the principle, that in case of necessity, and to prevent the spread of a fire, the ravages of a pestilence, or any other great public calamity, the private pro- perty of an individual may be taken and destroyed for the good of the many, without subjecting those, whose duty it is so to protect the public interests, to personal liability for the damage which the owner thereby sustains. But that in all such cases, as well as in the event of a building being destroyed by a mob, the public or the corporation of the city within whose bounds such destruc- tion happens, are liable to make good all damages which either landlord or tenant may suffer thereby.* It was admitted, how- ever, in the same case, that no damages are recoverable if the building, or the property therein, would have been inevitably destroyed by the flames, or if it was on fire and beyond the hope of extinguishment when the order of the magistrate was given. § 182. As third persons are liable both to landlord and tenant for injuries committed by themselves, so, on the other hand, both 1 Respublica v. Sparhawk, 1 Dall. E. 357 ; 12 Co. 13 - 65 ; 2 Kent, Com. 338 ; "White V. City Council, 2 Hill, {S. C.) R. 571. ^ Per Buller, J. in Governor, &c. v. Jleredith, 4 Term E. 797. 3 Const. U. S. Art. 5 of Amend. * Tlie Mayor, &c. of New York v. Lord, 17 Wend. E, 285. 10* 114 lA-W OF LANDLORD AND TENANT. [CH. VI. landlord and tenant may respectively become liable to such third persons ; for where the landlord has made himself liable to repair the premises, and a stranger is injured by his neglect, he will be liable to a special action on the case.^ But where it is the busi- ness of the county or parish to repair, neither landlord or tenant will be liable.^ If a stranger, whose goods have been or are about to be distrained upon the tenant's premises, in order to redeem them, is obliged to pay the rent, he may recover it again from the tenant, as for money paid to his use.^ And the same rule applies where the goods of a lodger, or under-tenant, have been so taken.* But an under-tenant, whose goods have been sold under a distress by the original landlord, for rent due from his immediate tenant, cannot maintain an action for money paid to the use of the latter, because the money never was the under-tenant's ; for on the sale under the distress the money paid by the purchaser immediately vested in the original landlord.^ Section III. Division Fences and Party Walls. § 183. We have observed, that the tenant, by virtue of his occupation, is generally liable to third persons, for the conse- quences of a neglect to keep up the repairs of division fences, party walls, and highways ; his Uability in this respect being coextensive with that of his landlord.^ At common law, no person was bound to fence, against the cattle of another ; and for any trespass they might commit, the owner was answerable, whether they entered from his close, the close of a third person, or from the highway.'' The owner of the cattle was bound, at his peril, to restrain them from trespassing upon the lands of his neighbor ; and if he neglected to do so, he was not only precluded from recovering 1 Payne v. Eogera, 2 H. Black. 350. " Russell V. Men of Devon, 2 Term R. 671. * Sapsford v. Fletcher, 4 Term R. 511. " Exall V. Partridge, 8 Term R. 308. ^ Moore v. Pyrke, 11 East, 52. 6 Taylor v. Whitehead, 2 Doug. R. 745. ' Stafford v. IngersoU, 3 Hill, N. Y; K. 38. CH. VI.J DIVISION FENCES AND PARTY WALLS. 115 damages from any injury they might sustain by going upon their lands, but was himself liable to make compensation for the tres- pass committed by his cattle.^ § 184. By the laws of New York, this liability has been restricted, as between the proprietors of adjoining closes ; and, unless one of the owners chooses to let his lands lie open, each party is bound to make and maintain one half of the division fence ; and the party, in default, has no remedy for a trespass committed by the cattle of the other.^ When the party who suf- fers for such trespass is not in fault, the same statute has, to some extent, given him a new remedy, by calling in the fence-viewers to appraise the ordinary damages, that may accrue to his lands, crops, fruit trees, shrubbery, and fixtures, connected with the land.^ This remedy applies only to adjoining owners ; it does not extend to injuries sustained by the death of cattle, caused by eat- ing unripe corn in the field of the party who is in default, for not keeping up his fence ; nor is it intended to take away any pre- viously existing common law remedy, for such damages as may have been sustained by the negligence or misconduct of a neighbor.* The eifect of the statute requiring each of the owners of adjoining lands to maintain his proportion of the partition fence, after it has been divided, is, to protect each from liability for any trespass committed upon the lands of the other, by reason of any defect in 1 Holladay v. Marsh, 3 Wend. R. 142; Little v. Lathrop, 5 Greenl. R. 356 j Brush v. Brainard, 1 Cow. R. 78; Clark v. Brown, 18 Wend. R. 221. This sub- ject has been fully considered in a case arising in Massachusetts, in which Mr. Chief Justice Parsons laid down the law with great ability and precision. After stating the principle just mentioned, and that it might be otherwise by force of prescription, where such prescription exists, he adds ; " Jf bound by prescription to fence his close, he was not bound to fence it against any cattle but such as were rightfully in the adjoining close. If not bound at common law to fence his land, he was, nevertheless, bound to keep his cattle on his own ground, and prevent them from escaping. The legal obligation of the tenants of adjoining lands to make and maintain partition fences, where no prescription exists, and no agreement has been made, rests entirely on statutory provisions, and trespass will lie against the owner of cattle entering on the grounds of another, though there be no fence to obstruct them, unless he can protect himself by statute, prescription, or agreement." Rust V. Low, 6 Mass. R. 90 ; Little v. Lathrop, 5 Greenl. R. 356. 2 1 R. S. 354. SIRS. 354, § 37, amended by law 1838, p. 253. * Stafford v, IngersoII, supra. 116 LAW OP LANDLORD AND TENANT. [cH. VI. that part of the fence, which the other was bound to keep up. If the cattle of the party whose portion of the fence is defective, trespass upon his neighbor in consequence thereof, the latter may have his damages appraised under the statute, instead of resort- ing to the action of trespass. But he is not bound to adopt this course, and may, if he prefers, still have his common law remedy.^ § 185. Unless the fence has been divided by an executed agree- ment of the parties, by a decision of the fence-viewers, or by pre- scription, (that is, by at least twenty years usage) ; neither party is obliged to make any particular part of it. It is a joint obligation, by which each is bound to make every part ; and if the fence be defective, each party is chargeable with the deficiency ; and upon the escape of cattle from either close into the other, through a defect in any part of the fence, the owner of the cattle could not allege the escape to be from the deficiency of the other's fence.^ If a man's cattle are lawfully placed on A.'s land, and escape thence to the land of another, their owner is entitled to the same exemp- tion from liability, that A. might claim in case the cattle had been his, but nothing more. And when B.'s cattle were rightfully pastur- ing on A.'s land, and escaped thence to the adjoining land of C, through a defect in the division fence, which A. was bound to repair, C. was allowed to maintain trespass against B.^ Although if A. had the care and custody of such cattle for the purpose of depasturing them, he would also have been liable in the same man- ner, and to the same extent, as the owner.* § 186. With regard to such animals as are not restrained by fences, the owner must keep them on his premises at his peril, and if they injure his neighbor, he is accountable for the trespass, without regard to the sufficiency of the inclosure. But if they are, such animals as are usually restrained by fences, the defend- ant is not liable if they escape from his premises into his neigh- bor's land, through the defect of a fence, which such neighbor is legally bound to repair.^ A dog is also said to be an exception 1 Clark V, Brown, supra. ^ Rust V. Low, supra. ^ Stafford v. IngersoU, supra. * Barnum v. Vandusen, 16 Day, R. 60. ^ Barnum v. Vandusen, supi-a; 12 Johns. E. 433. CH. VI.] DIVISION FENCES AND PAETY WALLS. 117 to the rule, for his owner is not liable for his trespasses.' The public have no rights in a public highway, except a right of way or passage only ; and, therefore, if cattle are placed in the high- way for the purpose of grazing, and escape into an adjoining close, the owner of the cattle, unless he owns the soil of that part of the highway on which he placed them, cannot avail himself of the insufficiency of the fences, in excuse of the trespass.^ § 187. A party is not bound either by statute or the common law, to keep up a division fence always ; he may remove it after having given sufficient notice of his intention. But if he removes his fence, without having previously given the three months notice required by the statute, the party who may be injured ■thereby, is not limited to a suit for the recovery of the actual damages sustained in consequence of such removal, but may, after a month's notice, replace the fence, and recover the expense thereof in an action against his neighbor. If actual damages are sustained, as the loss of a crop, for instance, caused by the prema- ture removal of the fence, such damages may be recovered in addition to the expense of the fence. ^ § 188. The common user of a wall adjoining lands belonging to different owners, is prima facie evidence that the wall and the land on which it stands, belong to the owners of those adjoining lands in equal moieties as tenants in common.* But if the precise extent of land originally belonging to each, can be ascertained, the presumption of a tenancy in common does not arise, and each party is the owner of so much of the wall as stands upon his own land, and may remove his portion at pleasure. A. party wall is generally built on the common property of the two, and is the common property of both ; and the separate owners of the adjoin- ing tenements, are owners in severalty of each half of the wall, though built at the joint expense, each continuing owner bf his land, with an easement or right to the use of the wall. But the statute relating to party walls, does not make them common pro- 1 12 Mod. R. 335 ; Ld. Eay. 606, 1583. 2 HoIIaday v. Marsh, 3 Wend. B. 142; Stackhouse v. Healy, 16 Mass. E, 33 ; Avery v Maxwell, 4 N. H. E. 36 ; Wells' v. Howell, 19 Johns. E. 142. ' Eichardson v. McDougal, 11 Wend. E. 46. » Cubitt V. Porter, 8 B. & Cr. 257. 118 LAW OP LANDLORD AND TENANT. [CH. VI. perty. And if one proprietor adds to the height of the wall, and the other pulls down the addition, the first may maintain trespass for pulling down so much of it as stood on the half of the wall which was erected on the plaintiff's soil.^ § 189. If either pulls down the wall for the purpose of rebuild- ing, he is bound to reinstate it in a reasonable time, and with the least inconvenience. If it was recessary to repair the old wall, the neighbor is bound to contribute ratably to the expense of the new wall. But he is not bound to contribute towards building the new wall higher than the old one, nor with more costly material ; all such extra expense must be borne exclusively by him who pulls down and rebuilds.^ If there had been no party wall, but the walls of the house pulled down stood wholly on its own lot, yet if the beams of the other house rested upon the wall pulled down, and had done so for a period sufficient to establish an easement by prescription, the owner of the adjoining house would be enti- tled to have his beams inserted, for a resting place, in the new wall.^ § 190. As a man may abate any encroachment on his property, he may cut the roots of a tree so encroaching, in the same man- ner that he may lop its overhanging branches.* If the tree grows in the hedge, dividing the land of two persons, with the roots extending into the land of each, they are tenants in common of the tree ; but if it stands on my side of the line, and the roots grow in my land, the whole property of the tree is in me, though the boughs overshadow his land ; and although my neighbor may 1 Matts V. Hawkins, 5 Taunt. E. 20. 2 Campbell v. Mesier, 4 Johns. Ch. R. 354. 2 3 Kent's Com. 437. The corporation of the city of New York, by an ordi- nance of 1833, have regulated partition fences and walls. It requires them to be made and maintained by the owners of the land on each side, and if the same can be equally divided, each party shall make and keep in repair one half. Disputes concerning the division of the wall, and the parts to be made and repaired by each, or as to its sufficiency, are to be settled by an alderman or assistant of the ward. If the wall cannot be conveniently divided, it is to be made and kept in repair at the joint expense. So much of the wall as is higher or lower, than the city regu- lation, to be at the individual expense of the owner. And on neglect of one party to contribute, the other may make the whole wall, and recover from his co-tenant his proportion of the expense. * Palmer, 536. CH. VI.] LIABILITY FOE NEGLIGENCE. 119 have a right to cut away the branches or the roots on his side, he has no right to convert either the branches or the fruit to his own use.^ The case of Master v. PolUer,^ was an action "of trespass quare clausum fregit et asportavit the plaintiff's boards." The defendant justified — that there was a great tree which grew be- tween the close of the plaintiff and that of the defendant, and that part of the roots of the tree entered into the close of the defend- ant, and were nourished by his soil ; that the plaintiff cut down the tree, carried it into his own close, and sawed it into boards, and the defendant entered and took and carried away some of the boards prout ei bene licuit. On demurrer to the plea, it was contended to be bad, for although some of the roots of the tree are in the defendant's soil, yet the body of the tree being in the plain- tiff's soil, all the residue of the tree belongs to him also. And of this opinion is Bracton ; but if the plaintiff had planted a tree in the soil of the defendant, it shall be otherwise ; quod curia concessit. "§> 191 . A man may, however, justify an entry on his neighbor's land, to retake his own property, which has been removed thither by accident. As in the instance of fruit falling upon the ground of another ; or in that of a tree which is blown down, or through decay falls into the ground of a neighbor ; in which cases the owner of the fruit, or of the tree, may show the nature of the accident, and that he was not responsible for it, and thus justify the entry. If, however, the fruit, or the tree, had fallen in that particular direction, in consequence of the owner's act, or negli- gence, he could not justify the entry .^ Section IV. lAahility for Negligence. % 192. The tenant's general obligation to repair, also renders him responsible for any injury a stranger may sustain, by his neglect to keep the premises in a safe condition ; as by not keep- 1 Welsh V. Nash, 8 East, 394; 5 B. & A. 600; Beardslee v. Trench, 7 Conn. E. 125; 11 Ibid. 177. 2 2 RoUe, E. 114. See also Betts v. Lee, 5 Johns. E. 348. 3 Per Tindal, C. J., in Anthony v. Haney, 8 Bingh. 192. 120 LAW OF LANDLORD AND TENANT. [CH. VI. ing the covers of his vaults sufficiently closed, so that a person walking in the street is injured thereby.^ If he places any unrea- sonable obstruction in the highway adjoining his premises, he will be liable to be indicted for a public nuisance. The law will tole- rate such a partial and temporary obstruction, as may be necessary for purposes of business, or in receiving and delivering goods from a warehouse, or the like ; but even then the public convenience must not suffer. In a case -which arose in Philadelphia, the de- fendant was indicted for a nuisance in placing goods on the foot- way and carriage-way in a public street, and suffering them to remain for the purpose of being sold at auction, so as to render the passage less convenient, but not entirely to obstruct it. Mr. Chief Justice Tilghman, delivering the opinion of the court, says, " The necessity which justifies such a nuisance, must be a reason- able one. No man has a right to throw wood or stone in the street at his pleasure ; but, forasmuch as fuel is necessary, he may throw wood in the street for the purpose of having it carried into his house, and it may be there a reasonable time. So, because building is necessary, stones, brick, lime, and other mate- rials, may be placed in the street, provided it can be done in a convenient manner. On the same principle, a merchant may have his goods placed in the street for the purpose of removing them into his store, in a reasonable time ; but he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it." ^ § 193. It is well settled, also, that no man can habitually carry on any part of his business in the street, to the annoyance of the public ; and if the nature of his business is such as to require more room than is contained upon his own premises, he must either enlarge them, or remove his business to some more conve- nient spot. Private interest must be made subservient to the general interests of the community, who are not to be prevented from passing freely along the highway. Thus, where the defend- ant, a lumber merchant, occupied a small yard close to the street, and from the smallness of his premises he was obliged to deposit 1 Cheatham v. Hampson, 4 Term R. 318. ^ The Commonwealth u. Passmore, 1 Ser. & E. 217. Any obstruction to the free passage of the public along a street, without necessity, is a uuisance. See King V. Russell, 6 East, R. 427. CH. VI.] LIABILITY FOR NEGLIGENCE. 121 the long pieces of lumber in the street, and to have them sawed up there before they could be carried into his yard. It was suggested to be necessary for his trade, and that it occasioned no more inconvenience than draymen letting down hogsheads of be.er into the cellar of a publican. But Lord Ellenborough said, "If an unreasonable time is occupied in delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconveniences occasioned necessarily in repairing the house ; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The defendant here is not to eke out the inconvenience of his own premises hy taMng in the public highway into his lumber-yard ; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." ' ■^^' \ § 194. And a tenant will be responsible for an obstruction, if he furnishes the occasion, or does an act which is likely to cause others to assemble around his premises, and produce such obstruction in the street. The defendants were accordingly held guilty of a nuisance, in a case which arose in the city of Brooklyn, for causing the street in front of their distillery, in that city, to be obstructed by carts and teams ; remaining therein an unreasonable time, wait- ing for an opportunity of loading with swill and slops from the dis- tillery ; although the defendants themselves used all reasonable diligence and despatch in the delivery, and were in the pursuit of a legal business. And the fact, that the teams and carriages were not owned by the defendants, or under their control, does not excuse them, if they in effect, by the manner of conducting their business, invite such assemblages, at the place where the article is delivered. Nor will any length of time, enable a party to pre- scribe for a nuisance, and it is, therefore, immaterial how long the practice had prevailed, or when the distillery was built.^ 1 The King v. Eussell, 6 East, E. 427. Eex v. Carlisle, 6 C. & P. 636 ; Eex v- Jones, 3 Camp. 230. 2 The People v. Cunningham & Harris, 1 Denio, E. 524. In an able opinion of Mr. Justice Jewett. 11 122 LAW OF LANDLORD AND TENANT. [ CH. VI. § 195. A person is liable also in damages for keeping a dog accustomed to bite mankind, although it is not his, if he harbors it, or allows it to be at, and resort to, his premises ; ^ but he must be aware that the dog was accustomed to bite.^ A man cannot recover damages for an injury received from the bite of a dog placed in a yard for the protection of outhouses, unless he had such reasonable and justifiable cause for being in the place where the dog was, as might be pleaded in answer to an action of tres- pass ; and if he had, the circumstance of there being a notice, warning persons to beware of the dog, will be no answer, if it appear that he was not able to read it.^ So a warning, previously given, is no excuse if the jury think that the accident was not occasioned by the plaintiff's own carelessness or want of caution.* The owner of sheep, however, which had been worried by a dog in a field, is not justified in shooting the dog, when in another field some distance off ; as it cannot be said to be done in protec- tion of his property.^ The plaintiff, where it is necessary to prove a scienter, as in the case of a dog, must allege that the defendant knew that the dog was accustomed to commit the particular tort complained of; an allegation of a knowledge of general ferocity is not, it would seem, sufficient to charge the defendant.^ § 196. By the ancient law, if an accidental fire began in a dweUing-house, and it extended to the neighboring house, the tenant was responsible for all damages done, whether the fire was caused by the negligence of himself, his servant, or his guest. And an action on the case would lie by a lessee for years against his under-tenant, for so negUgently keeping his fire that the pre- mises were burned down.^ But the statute of 14 Geo. III. c. 28, enacted that no action should be had against any person, in whose house or other building, or on whose estate any fire shall acci- dentally begin ; and this statute has been generally reenacted in the United States. As a general rule, however, a tenant is still 1 McKane v. Wood, 5 Car. & P. 1. " Hogan V. Sharp, 7 Car. & P. 755. 3 Sarch v. Blackburn, 4 Car. &. P. 297 ; Mood. & Malk. 505. « Curtis V. Mills, 5 Car. & P. 489. 6 "Wells V. Head, 4 Car. & P. 568. 6 Hogan V. Sharp, 7 C. & P. 755 ; Hartley v. Halliwell, 1 B. & A. 620; Beck V. Dyson, 4 Camp. 198 ; 1 M. & S. 238; 2 Ibid. 238 ; Browne on Act. 370. f KoU. Abr. Action on Case B., p. 1. CH. VI.] LIABILITY FOR NEGLIGENCE. 123 answerable to his lessor, if the house or other building on the demised premises is destroyed by fire, through his carelessness or negligence-; and, in such case, he is bound to rebuild, at his own expense, within a reasonable time.^ And even if a man, acting according to the best of his skill and with the utmost prudence, makes an improvement on his land, and, not foreseeing that it will produce an injury to his neighbor, unwittingly injures him, he is still answerable for the damage.^ Thus where an action was brought by the plaintiff, for an injury to his reversion occasioned by the defendant making a rick of hay on his land, so near some cottages of the plaintiff that they were burned by the spontaneous ignition of the hay. It was proved that the hay was put up in a damp or green condition, when, as is well known, it will, from natural causes, ferment and ignite. The court held, that the law requires every man so to use his own property as not to injure or destroy that of his neighbor ; and rendered him hable for all con- sequences resulting from a want of due care and caution in the manner of enjoying his own rights ; since an ordinary degree of prudence would have prevented the accident, or suggested the propriety of placing his hay-ricks further off from his neighbor's premises.^ § 197. It is a sound legal maxim, that every person must so use his own rights and property as to do no injury to those of his neighbor ; and the law, in all civil acts, does not so much regard the intent of the actor as the loss and damage of the party suffer- ing. Upon this principle, a person acting in the exercise of his undoubted right of property, and doing a damage to his neighbor, which, under certain circumstances, might be justifiable, will still be liable to an action, if the damage might have been prevented by the use of reasonable care and precaution on his part. Thus if a man lops a tree, and the boughs fall upon another ; or if he has land through which a stream runs, that turns his neighbor's mUl, and he lops the trees growing on the side, which accident- ally impede the progress of the stream, and hinder the mill from 1 Co. Lit. 53, b ; 1 Ves. K. 462. 2 Barnard v. Poor, 21 Pick. K. 378 ; Todd v. Collins, 1 Halst. E. 127. 8 Sutton V. Clarke, 6 Taunt. R. 44; Cook v. The Champlain Transp. Co. 1 Denio, 91. 124 LAW OF LANDLORD AND TENANT. [CH. VI. working, lie will be liable for all damages. Or if, in building his own house, a piece of timber falls on the neighboring house and injures it ; or if a man assaults him, and, in lifting up his staff to defend himself, it strikes another, an action lies, although he did a lawful thing; for the reason, that he who receives damage ought to be recompensed.^ For a similar reason, a shopkeeper, who invites the pubhc to his shop, is hable for neglect on leaving a trap-door open, without any protection, by which his customers suffer injury.^ § 198. Wherever, from the situation of the premises, the acts of the party, though done entirely on his own property, may be productive of injury, he is bound to exercise such a degree of care and caution as shall prevent persons, exercising reasonable care on their part also, to avoid the danger. But if he has used such caution, he will not be liable for an injury arising from the interference of a wrongdoer. As in an action for negligently permitting the flap of the defendant's cellar to remain unfastened, whereby it fell upon and broke the plaintiff's legs. The chief justice, in delivering the opinion of the court, said the defendants were bound to use such precautions as would, under ordinary cir- cumstances, have preserved the flap from falling down ; but if it was so secured, and a third person, over whom they had no con- trol, came and removed it, the defendant would not be liable. And that the question for the consideration of the jury was, whe- ther the defendant and his servants did use due and ordinary care in placing up the flap, so as to prevent any accident from happening. It might have been secured by a string or hook, it is true ; but a tradesman, under such circumstances, is not bound to adopt the strictest means. He is only bound to use such care as a reasonable man, looking at it, would say was sufficient ; and if he does use such care, and a wrongdoer comes and displaces it from the position in which it has been placed, it being that in which a careful man would place it, he will not be answerable, but the party must look for compensation to the wrongdoer who 1 Vaughan v. Menlove, 4 Scott, 244; S. C. 3 B. & C. 468. See, also, Rex v. Commissioners of tlie Paghan Level, 8 B. & Cr. 355 ; Wyatt v. Harrison, 3 B. & A. 871 ; Aldridge v. Great Western Railway Co. 4 Scott, N. E. 156. 2 Parnaby v. Lancaster, 1 1 A. & E. 223 - 243. CH. VI.] LIABILITY FOR NEGLIGENCE. 125 displaced it.^ And in another case, against a publican, for leav- ing open a trap-door on the pavement, in the evening, after the lamps were lit, he having just previously opened it for the purr pose of admitting a barrel of beer into his cellar ; the coixrt held that the case turned upon whether a proper degree of caution had been used by the defendant. That if he had not exercised such a degree of care in using his cellar as would prevent a reasonable person, acting also with an ordinary degree of care, from receiv- ing any injury, he would be Uable ; but not, however, unless the plaintiff himself had used due caution in the matter, and was not guilty of negligence in running into danger.^ "§> 199. As a general rule of law, also, it may be stated that, in cases of damage arising from accidents of the character we have been considering, where there is equal negligence on both sides, without any intentional wrong on the part of either, or if the plaintiff has himself contributed substantially to produce the acci- dent, no action lies.^ But while a party, on the one hand, shall not recover damages for an injury which he has brought upon himself, neither shall he, on the other, be permitted to shield him- self from an injury which he has done, because the party injured was in the wrong, unless such wrong contributed materially to produce the injury ; and, even then, it would seem that the party setting up such defence is bound to use common and ordinary caution to be in the right.* If, however, a person, in the lawful use of his property, exposes it to accidental injury from the law- ful acts of others, he does not thereby lose his remedy for an injury caused by the culpable negligence of such other persons. Thus the owner of land on the shore of a stream or lake, or adjoining the track of a railroad, may lawfully build thereon, though the situation be one of exposure and hazard ; and he is, nevertheless, entitled to protection against the negligent acts of persons wilfully passing the same with vessels or carriages pro- 1 Daniels v. Potter, 4 Car. & P. 262. 2 Proctor V. Harris, 4 Car. & P. 337. s Brownell v. Flagler, 5 Hill, (N. Y.) R. 282; Sills v. Brown, 9 C. & P. 605 ; Wynn V. AUard, 5 Watts & Ser. R. 524 ; 3 M. & G. 59 ; Bridge v. Grand June. E. Co. 3 M. & M. 248; Brown v. Maxwell, 6 Hill, (N. Y.) R. 592; Rathbun t. Payne, 19 Wend. R. 399. * New Haven Steam & Transp. Co. v. Vanderbilt, 16 Day, R. 421. 11* 126 LAW OF LANDLOKD AND TENANT. [CH. VX. pelled by steam-engines, by which such buildings are set on fire. And, in such action, it is competent for the plaintiff to show that experienced persons, in such employments, were accustomed to use precautions which the defendants neglected ; the tendency of such evidence not being to establish a local law or usage.^ Section V. Of Nuisances. ^ 200. The tenant's possessory interest will enable him to maintain an action against a stranger, for any act by which his possession is immediately affected, or the consequences of which are in any way injurious to his possession.^ Both landlord and tenant may have distinct actions for the same wrongful act ; as, for injury to trees, the landlord for injury to the body of the tree, and the tenant in respect to its shade or fruit.^ And, if trees be cujfc down upon the land, the tenant may have an action of tres- pass against the wrongdoer for breaking in upon his premises, and the landlord an additional action of trover for the trees car- ried away.* Upon the same principle, trespass lies in favor of the tenant, if a man builds a house so close to his that the roof overhangs, and throws the water upon it ; or if a person erects any thing offensive so near his dwelling, as to render it useless or unfit for habitation ; as, for instance, a pigsty, lime-kiln, smith's forge, tobacco-mill, tannery, or privy .^ § 201. Any offensive erection, which, from its nature, may be an ^annoyance, and from its situation actually becomes so, is a nuisance. Thus it has been held, that a slaughter-house in a city is prima facie a nuisance to the neighborhood ; and that, to consti- tute it such, it is not necessary that the noxious business should endanger the health of the neighborhood. It is sufficient if it be offensive to the senses, and renders the enjoyment of life uncom- 1 Cook V. The Champlain Transp. Co. 1 Denio, E. 91. 2 Evans v. Evans, 2 Camp. R. 191. » Biddesford v. Onslow, 3 Lev. E. 209 ; Starr v. Jackson, 11 Mass. E. 519. « Ben-y v. Head, Palm. 327 ; 4 Co. E. 62, b ; Cro. Car. 242 ; 2 Inst. 303. 6 Aldred's Case, 9 Eep. 59, a ; Penruddock's Case, 5 Eep. 100 ; Wynn v. Alard, ,5 Watts & S. E. 524; Howel v. McCoy, 3 Eawle, 256. CH. VI.] OB NUISANCES. 127 fortable.i Upon this principle, a coal-yard may be so negligently conducted as to become a nuisance to the neighboring inhabit- ants,^ although it is not necessarily such ; and only becomes so by being so carelessly used as to become obnoxious to the neigh- borhood.^ But the act of keeping a large quantity of gunpowder in a wooden building, insufficiently secured, and situated near other buildings, thereby endangering the lives of persons residing in the vicinity, amounts to a public nuisance. And if an accident occurs, by which an individual is wounded, he may recover da- mages against the party guilty of the nuisance, although the fire may not have been occasioned by any negligence of the defend- ant.* Even a private dwelling-house may be kept in so negligent and filthy a manner as to become a nuisance.^ § 202. It is a well-settled principle, that every individual is entitled to the undisturbed possession and lawful enjoyment of his own property ; but this right is qualified and limited, by an equal right in others, to enjoy the possession of their property also. To this possession the law prohibits all direct injury, without regard to its extent or the motives of the aggressor. A man may prose- cute such business as he chooses upon his premises, but he cannot erect a nuisance to the annoyance of his neighbors, even for the purpose of a lawful trade. Thus he may make an excavation on his own land, but not so near to mine as to cause my land to slide into his canal ; nor may he cast the dirt or stones upon my land, either by human agency or the force of gunpowder. If he can- not construct his work, without adopting means that will, injure his neighbor, he must abandon that mode of using his property or will be held responsible for all damages resulting therefrom. He will not be permitted to accomplish a legal object in an unlawful manner, although the work is done in the most careful and skilful 1 Catlin V. Valentine, 9 Paige, R. 575 ; State v. Purse, 4 McCord, E. 472. ' Barron v. Richard, 8 Paige, R. 351. ^ Russell w.Popham, 10 Paige, R. ' Myers v. Malcomb, 6 Hill, (N. T.) R. 292 ; Rex u. Taylor, 2 Stra. R. 1168; 3 B. & C. 556; Pierce v. Dent, 7 Cow. R. 146; 4 "Wend. 25; Mayor, &c. a. Furze, 3 Hill, (N. Y.) K. 612. 5 State V. Purser, supra. 6 Hay V. The Cohoes Co. 2 Comst. R. 160; Tremain v. Same, Ibid. 163; Aldred's Case, 9 Co. 58; Eol. Abr. 565. 128 LAW OF LANDLORD AND TENANT. [CH. VI. § 203. It must not, however, be inferred that an action can be maintained for a thing which merely puts another to inconve- nience. Some actual damage must be sustained ; and the mere act of diverting a watercourse, erecting a privy, or the like, is not sufficient to sustain an action, if it does no injury to the plain- tiff's inheritance or possession. So the building of a wall which intercepts a prospect, without obstructing the light ; or the open- ing of a window whereby the privacy of a neighbor is disturbed, are not actionable ; the only remedy in this latter case is to build on the adjoining land, opposite the offensive window.^ The injury must also be of a substantial nature, in the ordinary apprehension of mankind, and not arising from the caprice or peculiar physical constitution of the party aggrieved. As if the boughs of my tree grow over your land, you may cut them off; but you are not jus- tifiable in cutting them before they grow over your land, for fear they should grow over.^ So if a chandler erects a melting-house, it- is a common nuisance ; but if a man is so tender-nosed that he cannot endure sea-coal, he ought to leave his house .^ Or if a man sets up a school so near my study, who am of the legal pro- fession, that the noise interrupts my studies, no action lies.* § 204. Nor will an action lie for the reasonable use of a per- son's right, although it may be to the annoyance of another ; as if a butcher, brewer, &c., use his trade in a convenient place.® Nor was it considered actionable where a defendant kept six or seven pointers so near the plaintiff's dwelling-house, that his family were prevented by their noise from sleeping during the night, and were very much disturbed in the day.^ So the erec- tion of a mill above another mill, whereby the owner of the lower mill is obliged to extend his dam, and is subjected to inconve- nience in floating timber to his mill, but which does not affect his 1 Per Eyre, J., 3 Camp. 82; 4 D. & R. 234; Knowles v. Eichardson, 1 Mod. 56 ; Le Blanc v. , 3 Camp. N. P. C 82 ; 9 Rep. 586. 2 Per Coke, J., iu Norris v. Baker, 1 Kolle, R. 395. " Per Doddridge, J., in Jones v. Powell, Palmer, 536 ; Hall v. Swift, 6 Scott, 167 ; Bower v. Hill, 1 Bing. N. C. 546. * Com. Dig. Action on Case for a Nuisance. 6 9 Conn. R. 305 ; EUiotson v. Feetliara, 2 Eing. N. C. 134 ; Bliss v. Hall, 4 lb. 183 ; Plight v. Thomas, 10 A. & E. 590 ; S. C. 2 P. & D. 531. 6 Street v. Tugwell, B. R. M. T. 41 Geo. III. CH. VI.] OP NUISANCES. ' 129 supply of water, is not actionable.^ If the injury is trivial, the law will not afford redress ; but it will interpose, to prevent the lower mills being rendered useless or unproductive, in any consi- derable degree.^ "§. 205. Although, generally, some injury must have been sus- tained befoje redress can be had, yet if the necessary conse- quence of what has already been done will be an injury, it is not necessary to wait until the actual damage shall have accrued. As if a party intending to build a house, which will obstruct my ancient lights, erects fences of timber for the purpose of building, I have no right to pull them down ; but if a house be built, the eaves of which project over my land, I need not wait till any water actually falls from them, but may pull them down at once. Mere threats, however, unaccompanied by an act, do not amount to a disturbance.^ ■§> 206. If the owner of land, on which a nuisance is created, lets the land, or if a tenant, having created a nuisance, underlets it, and the nuisance is continued, an action for its continuance will lie, at the option of the injured party, either against the land- lord or the tenant ; because, by letting the land with the nuisance, he affirms it, and the continuance amounts to a fresh nuisance.* The action may be brought by any subsequent owner or occu- pant of the place, subject to the nuisance, against all who are con- cerned in its continuance ; whether they be lessees, sub-lessees, or assignees.® And the damage occasioned by a nuisance need not be direct, in order to sustain an action. Erecting a dam in a navigable stream, that obstructed plaintiff's raft, has been held sufficient for this purpose.® § 207. Many acts done upon a man's own property, which are in their nature Injurious to the adjoining land, and consequently 1 Palmer v. Mulligan, 3 Caines, K. 307 ; Sackrider v. Beers, 10 Johns. K. 321. 2 Merritt v. ErinkerhofF, 17 J. E. 306 ; Stiles v. Hooker, 7 Pick. 266. = 9 Rep. 51, a; 2 Eol. Abr. 145, Nuisance, U. * Staples V. Spring, 10 Mass. E. 72 ; Vedder v. Vedder, 1 Denio, E. 257 ; Eex V. Pedlej, 1 Ad. & El. 822 ; 1 B. & P. 409 ; Plumer v. Harper, 3 N. Hamp. 38. 5 Staples V. Spring, supra; Eogers v. Stewart, 5 Verm. 215. " Hughes V. Heiser, I Binn. E. 463. 130 LAW OP LANDLORD AND TENANT. [CH. VI, actionable as nuisances, may, however, be legalized by prescrip- tion. Thus the right not to receive impure air is an incident of property, and for any interference with this right an action may be maintained ; but by an easement acquired by his neighbor, a man may be compelled to receive the air from him in a corrupted state, as by the admixture of smoke or noisome smells, or to sub- mit to noises caused by the carrying on of certain trades. So, also, with regard to flowing water, though the right to receive the stream in its accustomed course is an easement, yet the right not to have impure water discharged upon a man's land, is one of the ordinary rights of property, the infringement of which can only be justified by an easement previously acquired by the party so dis- charging it. Therefore, an ancient user, is held to be a justifica- tion for the exercise of a noisy, ^ or offensive trade, ^ or for dis- charging water in an impure state upon the adjoining land.^ In Bliss v. Sail, Tindall, C. J., says, " the plaintiff came to his house with all the rights appurtenant to it, one of which, at the common law, is a right to wholesome untainted air, unless the business which creates the nuisance has been carried on there for so great a length of time, that the law will presume a grant from his neigh- bors, in favor of the party who uses it, and twenty years user would alone legalize the nuisance." In this case, the defendant carried on the business of a tallow-chandler on the adjoining pre- mises, three years before the plaintiff entered upon his premises, but it was held insufiScient to legalize the nuisance. § 208. We will here mention, (although it may, perhaps, more strictly belong to that branch of the work which relates to the tenant's remedies,) that in case a tenant is aggrieved by a private nuisance, besides resorting to an action at law for damages, or applying to a court of equity to prevent its erection,* he may at once enter and abate such nuisance, without the formality of legal process ; ^ and trespass will not lie against him, either for the 1 Elliotson V. Feetham, 2 Bingh. N. C. 134. ^ Bliss V. Hall, 6 Scott, E. 500. 3 "Wright V. Williams, 1 M. & W. 77. * Catlin V. Valentine, 9 Paige, K. 575 ; 3 Verm. E. 529 ; Lansing v. Smith, 4 "Wend. 9 ; Stetson v. Faxon, 19 Pick. 147. 5 Gleason v. Gary, 4 Conn. E. 418; 2 Mod. R. 253; Eaikes v. Townsend, 2 Smith, E. 9 ; Meeker v. Van Eensselaer, 15 Wend. 397. CH. VI.] OP NUISANCES. 131 entry or the abatement, provided he commits no riot in doing it.^ Thus, where the nuisance complained of was the obstruction of a rivulet, by means whereof the defendant's cattle could not obtain water so plentifully as before, the defendant was justified in enter- ing upon the plaintiff's soil and abating the mill-dam.^ Lord EUenborough, deUvering the opinion of the court in this case, illustrates the principle by the following cases. " If a man make a ditch in his own land, by means of which the water, which runs to my mill is diminished, I may myself fill up the ditch. If he erects upon his own soil any thing which is a nuisance to my house, mill, or land, I may remain on my own soil, or enter upon his, and throw it down, and justify this in an action of trespass. If he stops my way to my common, and incloses the common, I may justify the dejection of the inclosure of the common or way. And this I may still do if I have only an estate for years." But a man may not turn the water back on the land of the party who increases the natural flow of the stream, by means of ditches.^ § 209. In abating a private nuisance, a party is bound to use reasonable care, that no more damage is done than is necessary to effect the purpose ; and so long as he complies with this rule, he will not be answerable for any damage resulting from the act of abating a nuisance.* Therefore, where a man erected a mill- dam, part upon his own land and part upon the land adjoining ; and the owner of the adjoining land pulled down the portion of the dam standing upon his land, by which all the dam fell down, and the water ran out ; all the court held it justifiable.^ So if one erects a wall, partly upon his own land and partly upon the land of his neighbor, and the neighbor pulls down the part of the wall upon his land, and thereupon all the wall falls down, this is lawful.® But he may not abate more than is absolutely necessary, and, therefore, where a plaintiff had a right to irrigate his mea- 1 Wetmore v. Tracy, 14 Wend. 250 ; Batten's Case, 9 K. 54 b ; Colburn v. Eichards, 13 Mass. 420. 2 Kaikes v. Townshend, 2 Smith, K. 9. 8 Williams v. Gale, 3 Har. & Johns. 234. * Dyer v. Depui, 5 Wheat. R. 584 ; Gates v. Blanco, 2 Dana, E. 158 ; W. Jones, 222. 5 2 Eol. Abr. Nnsans, (S). 6 Wigford V. Gill, Cro. Eliz. 296. 132 LAW OF liANDLOED AND TENANT. [CH. VI. dow, by placing a dam of loose stones across a stream, and occa- sionally a board, and fender ; and he fastened the board with two stakes, which he had no right to do ; the defendant was held jus- tifiable in removing the stakes, but not in removing the board.^ " So if H. builds a house so near mine, that it shoots the water upon my house, or is in any other way a nuisance to me, I may enter upon the owner's soil and pull it down," and for this reason only, it is said, " a small fine was set upon the defendant, in an indictment for a riot in pulling down some part of a house, it being a nuisance to his lights, and the right found for him in an action for stopping his lights." ^ § 210. The fact that a private nuisance may also be indictable as a nuisance to the public ; or the continuance of a nuisance created by the overflowing of lands by means of a mill-dam for twenty years and upwards, though it confers a right to the use of the land flowed, constitutes no defence to a proceeding on the part of the public to abate it ; nor will it prevent an individual from bringing an action against the party causing it, provided he can prove he has himself sustained some special injury thereby.^ Nor will the abatement of a nuisance by a plaintiff, preclude him from recovering damages sustained by him prior to the abate- ment.* No previous demand or notice is necessary before making such abatement, except where the tenement on which the nuisance is erected, has passed into other hands since its erection ; ® and the demand may then be made either on the lessor or lessee, for the continuance of it is a nuisance by the lessee, against whom an action would also lie.^ § 211. There must be some sensible abridgment of the enjoy, ment of the tenement to which the easement is attached, in order to amount to a disturbance, although it is not necessary there 1 Greenslade v. Halliday, 6 Bing. E. 379 ; S. C. M. & E. 75 ; "Williams v. Gale, 3Har.& Johns. 234. 2 Eex V. Eosewell, Salkeld, 459. ^ Chichester v. Lethbridge, Willis, 73 ; Crowder v. Trinker, 19 Ves. E. 621 ; Mills V. Hall, 9 "Wend. E. 315; Pennradock's Case, 5 E. 101. * Gleason v. Gary, 4 Conn. E. 418, 6 "Wigford V. Gill, Cro. Eliz. 269. " Brent v. Haddon, 2 Cro. Jac. 555 : Gleason v. Gary, supra. CH. VI.] OF EASEMENTS. 133 should be a total obstruction of the easement.^ Thus, to main- tain an action for obstructing light, it is sufficient to show, that the easement cannot be enjoyed in so full and ample a manner as before, or that the premises are to a sensible degree, less fit for the purposes of business or occupation.^ In a case of this kind, the court said, "the question is, -whether the plaintiff has the same enjoyment now which he used to have before, of light and air in the occupation of his house ; whether the alteration, by carrying forward the wall to the height of ten feet, has or has not occasioned the injury which he complains of. It is not every pos- sible, or speculative exclusion of light, which is the ground of an action ; but that which the law recognizes, is such a diminution of light as really makes the premises to a sensible degree less fit for the purposes of business. It appears the defendant's premises had been injured by fire, and they reerected them in a different manner. They have a right to reerect in any way they please, with this single limitation, that the alteration which they make, must not diminish the enjoyment by the plaintiff of the light and air "3 Section VI. Of Easements. § 212. We have seen that a tenant is entitled to the use of all those privileges, easements, and appurtenances in any way belong- ing to the premises under lease, as incident to his grant, unless they have been expressly reserved and excepted out of the lease. He is, at the same time, bound to the performance of all su6h duties as have been lawfully imposed upon the land for the benefit of others, either individually, or by virtue of any regulation, made by the authority of the city or town within whose boundary he has located himself. As these duties and easements essentially affect the tenant's enjoyment of the premises, it may be proper here to notice the most important of them, with some of their modifica- 1 Moore v. Dame Brown, Dyer, 319, b. pi. 17. 2 Cotteril v. Griffiths, 4 Esp. N. P. C. 69. "^ Parker v. Smith and others, 5 Car. & P. 438 ; Back v. Stacy, 2 Car. & P. 4G3 . 12 134 LAW OF LANDLORD AND TENANT. [CH..VI. tlons. Under the bead of easements, may be included all those privileges, which the public, or the occupants of neighboring- lands, or tenements, have in the lands of another, and by which the servient owner upon whom the burden of the privilege is im- posed, is obliged to suffer, or not to do something on his own land, for the advantage of the public, or of the person to whom the privi- lege belongs. Of these we will only specify, ways, commons, fisheries, watercourses, removal of buildings, and the right of sup- port from neighboring soil. There are, also, a great variety of other servitudes enumerated by Chancellor Kent, which grow up in cities, where the population is dense and the buildings are com- pact. As the right of support, which arises from contract or pre- scription, where the owner of a house stipulates to allow his neigh- bor to rest his timbers on the walls of his house. There is also the servitude of drip, by which one man engages to permit the waters flowing from the roof of his neighbor's house, to fall on his estate. So there is the right of drain, or to convey water in pipes through or over the estate of another. These servitudes or ease- ments must be created by the owner alone ; and one tenant in common cannot establish them upon the common property without the consent of his cotenant. They may be limited to certain times ; as the drawing of water from a neighbor's well, may be confined to certain hours ; or a right of passage, may be limited to a portion of the day, or to a certain place ; and any attempt to exercise such privileges without the owner's consent, will subject the party to an action.^ (a.) Of a RigU of Way. § 213. A right of way is the right to use the surface of another person's land for the purpose of passing and repassing ; and the incidental right of property fitting the surface for that use, by level- ling, gravelling, ploughing, or paving, while the owner of the soil has all the rights and benefits of ownership consistent with such easement.2 It may arise by a grant of the owner of the soil, by prescription, which supposes a grant, or from necessity. When 1 3 Kent, Com. 436. 2 Perley v. Chandler, 6 Mass. R. 454; 2 Mete. 457. CH.,VI.] OP A RIGHT OF WAY. 135 by grant, it can only be created by deed, althougli it is but an easement upon the land of another, and not an interest in the land itself. It concedes only a right of passing in a particular line, and not to vary it at pleasure, or to go in different directions ; ^ and if granted for a particular purpose, it does not include a right of way for another purpose.^ If it be a right of way in gross, or a personal right, it is not assignable ; and is in that case so exclu- sive, that the owner of the right cannot take another person with him. But when the right is appendant, or annexed to the estate, it passes with the land, to an occupant or assignee.^ § 214. A right of way may also arise from necessity ; as, if a man leases or sells land to another, which is wholly surrounded by his own land, the lessee or purchaser, is entitled to a reasonable passage over the lessor's ground to arrive at his land ; for this is a necessary incident to the grant, without which the grant would be useless.* It cannot be claimed by one who has a way over his own ground however inconvenient that may be ; ^ nor if there is a nearer and a better way than the one claimed.^ The right of locating it, belongs to the owner of the land ; but it must be a convenient way.' After it has been once designated, the grantee has no right to deviate from the course so designated ; although the way may become impassable, from being overflowed or other- wise.^ There is, however, a temporary right of way over the adjoining lands if the highway be out of repair, or otherwise impassable. But this principle applies only to public, and not to private ways ; for a person having a private way over another's land, has no right to go upon the adjoining land, even though the private way be impassable.^ 1 5 B. & C. 221 ; Jones v. Percival, 5 Pick. E. 485. ^ Cowling V. Higginson, 4 Mees. & W. 245. " Staples V. Heydon, 6 Mod. K. 3 ; 2 Ld. Ray. 922. " Doty V. Gorham, 5 Pick. E. 487 ; Holmes v. Seely, 19 Wend. E. 507. ^ McDonald v. Lindall, 3 Eawle, 492. « Jetter v. Mann, 2 Hill, S. C E. 641. ' Eussell V. Jackson, 2 ipick. E. 574 ; Capers v. Wilson, 3 McCord, 1 70. » Miller v. Bristol, 12 Pick. E. 550 ; Wynkoop v. Burger, 12 Johns. E. 222. ^ Miller v. Bristol, 12 Pick. 552 ; Taylor v. Whitehead, Dong. E. 745. If a man gives another a license, to lay pipes of lead in his land, to convey water to a cistern, he may enter on' the land, and dig therein, to mend the pipes. Per Twis- den, J., in Pomfret v. Eicroft, 1 Sannd. E. 321. 136 LAW OF LANDLOED AND TENANT. [CH. VI. § 215. The question has been much discussed, ■whether a right of way, as to a foot or tow-path, exists along the banks of naviga- ble rivers. Mr. Chancellor Kent observes, " that in those coun- tries where the liberal doctrines of the Roman law have been adopted, lands on each side of a navigable river, as well as the seashore, have always been regarded, as dependencies of the pub- lic domain, and subject to the servitude, or burden, of towing- paths, for the benefit of the public." But no such right exists according to the English law ; ^ and in New York it has been held, after a thorough examination of the subject, that the public have no right to use and occupy the land of an individual, adjoin- ing navigable waters, as a public landing, or place of deposit of property, in its transit, against the will of the owner ; although such user may have been continued upwards of twenty years, with the knowledge of the owner.^ It is held, however, in Missouri, that navigators and fishermen, are entitled to the temporary use of the banks of the navigable rivers in that State, though owned by private individuals, for the purpose of landing and repairing their vessels, and exposing their sails and merchandise ; but that such use is only for transient purposes, and under restrictions.^ § 216. A right of way by prescription, for agricultural pur- poses, is a limited and qualified right, and does not necessarily confer a right to use such way, for general or commercial pur- poses. Thus, a right of way for carriages, does not necessarjly include a way for cattle.* A reservation, in a lease, of a right of way on foot for horses and cattle, does not give a right to carry manure ;^ for a right of way to a close for some purposes, must not be enlarged for other purposes.^ But the extent of the right is a question for a, jury under all the circumstances of the case.^ And, as a general rule, where there is a license to use a certain way. 1 Ball V. Herbert, 3 Term R. 253. 2 Pearsall v. Post, 20 Wend. K. Ill ; S. C. 22 Ibid. 425. ' OTallon v. Daggett, 4 Missouri, R. 343. * Jackson v. Stacy, Holt, N. P. C. 455 ; Ballard v. Dyson, 1 Taunt. 279 ; Kirk- ham V. Sharp, 1 "Wheat. 323. 5 Brunton v. Hall, 1 G. & D. 207. ' Comstock V. Van Deusen, 5 Pick. 163; Webster v. Bach, 1 Freem. 247 ; 15 Pick. 553. ' Cowling V. Higginson, 4 M. & W. 245 CH. VI.] 01' A EIGHT OF WAY. 137 there must be a reasonable use of it ; as if a man let a bouse, reserving a right of way to the rear, he cannot go through without request, nor at unseasonable hours.^ Twenty years uninterrupted user, is sufficient to presume a grant of a right of way, provided it is adverse, and not by permission.^ But the erection of a gate at the time a way is opened, or the declarations of the owner at such time, contradictory of such right, will rebut the presump- tion of the grant of a common way.^ The extent of the right is confined by the mode of user ; unless the grant be shown, in which case it will be confined by the terms of the instrument, not having been adverse thereto.* 'O § 217. From long forbearance to exercise a right of way, a release may be presumed, but when the right can only be acquired by twenty years enjoyment, it cannot be lost by disuse for a less period.^ Unity of possession of the close where a private way exists, with the close to which such a way is appurtenant, or which gives the right of way, may cause an extinction of the same ; as if a man have a way over the close of another, and he purchase that close, the way is extinguished by the unity of possession.^ But this is to be understood of a mere way of easement ; for if it be a way of necessity, it will not be extinguished by such unity of possession ; nor unless the necessity ceases.'^ And if it be a pre- scriptive easement, mere unity of possession but suspends the right, it requires a unity of ownership to destroy it.^ Therefore, where a party seized in fee of certain premises, took a lease of the adjoining land, the owner of which had previously enjoyed an ease- ment in the former ; such unity of possession was held to suspend, and not to extinguish the right of way over the former.^ 1 Tomlin v. Fuller, 1 Vent. 48. 2 Maverick v. Austin, 1 Bailey 58 ; Gayetty v. Bethune, 14 Mass. 53 ; TurnbuII V. Elvers, 3 McCord, 138. 8 Commonwealth v. Newberry, 2 Pick. 57 ; Barker v. Clark, 4 N. H. 384. * Hart V. Chalker, 5 Conn. 316; Atkins v. Boardman, 20 Pick. 291. 5 Wright V. Freeman, 5 H. & Johns. 476 ; Emerson v. Wiley, 10 Pick. 316; 3 McCord, 295; 10 Mass. 189. 6 Dyer, 295 ; Palm. 446 ; 3 Bulst. 340. ' Grant v. Chase, 17 Mass. 448; McDonald v. Lindall, 3 Eawle,495. 8 Manning v. Smith, 6 Conn. R. 291 ; Caubane v. Fish, 2 Tyrw. 155. ' Thomas v. Thomas, 2 Cr. M. & E. 34 ; S. C. 5 Tyrw. 804. 12* 138 LAW OF LANDLORD AND TENANT. [CH. VI. (b.) Of Commons. <5> 218. Common is a right or privilege whicli one or more per- sons have, to take or use some portion of that which another per- son's lands, woods, or waters produce, in order to provide pasture for his cattle, fuel for his family, or means of repairing his imple- ments of husbandry. It was originally designed to encourage agriculture, and commenced in some agreement between lords of manors and their tenants ; but, being continued by usage, is valid without an instrument in writing to prove the original grant. The most general and valuable kind of common is that of pasture, or the right of feeding one's beasts on another's lands. The policy of the old law, however, in favor of common of pasture and of estovers, as being conducive to improvement in agriculture, has entirely changed or become obsolete, and the right itself is scarcely recognized in this country. It probably does not exist in any of the Northern or Western States of the Union,^ except in the State of New York, where it has been the subject of some litiga- tion ; resulting, probably, in the adoption of the principle of Eng- lish law, that where the right of common of pasture has once been established, the right of the owner of the soil to improve his waste lands is to be exercised consistently with the preservation of the right of common.^ § 219. Common of pasture is either appendant or appurtenant. The first is founded on prescription, and regularly annexed to arable land. It authorizes the tenant to put commonable beasts upon the waste grounds of the manor, but such beasts must be levant and couchant on the estate ; that is, such cattle only as are necessary to plough and manure the land, and so many as the land will sustain during the winter. Common appurtenant may be annexed to any kind of land, and may be created by grant as well as by prescription. It allows the occupant to put in other beasts than such as plough or manure the land; and, not being founded on necessity, like the other right as to commonable 1 Trustees of "Western University v. Robinson, 12 Serg. & Eawle, 33. 2 "Watts V. Coffin, 11 Johns. R. 495. CH. VI.] OF COMMONS. 139 beasts, was never favored in law.^ Common of pasture, whether appendant or appurtenant, may be apportioned ; for, as the land is entitled to common only for such cattle as are necessary to plough and manure it, the common cannot be surcharged by any number of divisions or subdivisions in consequence of alienation. Such common, therefore, being incident to the land, passes with it in such proportions as the land may be divided into.^ But common of estovers is not apportionable ; for if this were to be allowed the land might be easily surcharged. If, for instance, estovers are granted as belonging to a farm of two hundred acres, so long as this is one farm there is but one house, and, perhaps, not more than two chimneys ; but if the farm is divided, another house becomes necessary, and double the number of chimneys must be supplied, which would be injurious to the inheritance. So, also, of fences and buildings ; upon a division of the farm more fences and buildings become necessary, and if both are to be supplied from the woods of the proprietor an increased quan- tity would be taken, when by the grant itself only estovers for one farm were allowed. § 220. Since estovers cannot be apportioned, neither of the tenants, in case of a division of the farm, can have them ; they therefore become extinguished, whenever a division is made by the act of the party, among several tenants. They belong to the whole farm as an entirety, and not to parts of it ; and as the owner of no one portion can enjoy the right, it is necessarily extin- guished, and can only be revived by a new grant. ^ And if com- mon of estovers devolves upon several by operation of law, as by descent, they cannot (at least under the operation of the statute of descents in New York,) enjoy the right in severalty ; although they may unite in a conveyance, and vest the right in one individual. It is a joint right, to be enjoyed jointly by the heirs or their assigns ; on the principle, that the land charged with the right ought not to have an increase of burden by the multiplication of claimants.* If a stranger, who has no right, put hik cattle upon the common, 1 Van Rensselaer v. Eadcliff, 10 Wend. E. 637. " Livingston v. Tenbroeck, 16 Johns. E. 26 ; Bennet r.Eeave, Willes, 227. 3 Van Eensselaer v. Eadcliff, 10 Weud. 650. * Leyman v. Abeel, 16 Johns. E. 30. 140 LAW OF LANDLOKD AND TENANT. [CH. VI. the landlord may distrain them damage-feasant, or may have his remedy by action of trespass ; and the commoner may in like manner distrain, or sue for damage by an action on the case.^ If a commoner surcharge the common, the landlord may distrain the extra beasts or bring trespass, while the other commoners may have an action on the case.^ (c.) Of Fisheries. <§) 221. A common of fishery, according to Mr. Chancellor Kent, is of two kinds : the one, a right of fishing common to all ; and the other, a right vested exclusively in one or a few indivi- duals. By the common law, owners of lands on the banks of freshwater rivers, above the ebbing and flowing of the tide, have the exclusive right of fishing, as well as the right of property opposite to their respective lands ad filum medium aquce. And where the lands on each side of the river belong to the same per- son, he has the same exclusive right of fishery in the whole river, so far as his lands extend along the same. But such right is always subject to the public convenience ; and all erections or impediments made by the owners, so as to obstruct the free use of the river, as a highway for boats or rafts, are deemed nuisances. So far as regards the right of fishery in rivers that are not navi- gable, (and, in the common law sense of the term, those only are deemed navigable in which the tide ebbs and flows,) it is subject to the further qualification of not being so used as to injure the private rights of others ; and it does not extend to impede the passage of fish up the river, by means of dams or other ob- structions.^ § 222. The private right of fishery is confined to freshwater rivers, above tide-water, unless a special grant or prescription is 1 Cteeseman v. Hardham, 1 B. & A. 706; Ricketts v. Salway, 2 Ibid. 360. 2 Bowen v. Jenkins, 6 Ad. & El. 911. 3 The People v. Piatt, 17 Johns. K. 195; Hooker v. Cummings, 20 Ibid. 90; Ex parte Jennings, 6 Cow. 518 ; Berry v. Cable, 3 Greenl. 269 ; Scott v. "Wilson, 3 N. H. E. 321 ; Commonwealth v. Charleston, 1 Pick. E. 180 ; Adams v. Pease, 2 Conn. E. 481 ; Browne v. Kennedy, 5 Har. & J. 195. CH. VI.] OP FISHERIES. 141 shown ; and the right of fishing in the sea, or in a bay or arm of the sea, and also in navigable or tide waters, is a right public and common to every one. No individual can appropriate to himself an exclusive privilege in navigable waters or an arm of the sea, without showing a grant or prescription for the same.^ But this right of free fishery is to be understood to be always under the control of the municipal law of the land ; for no person has a right of going over another man's land for the purpose of fishing, or of crossing the beach or seashore, even to bathe in the sea, as against the owner of the soil of the shore.^ The legislatures of the seve- ral States have also assumed the regulation of the passage and protection of fish, in streams not navigable in the technical sense. And it is now considered that fisheries are, as at common law, the exclusive right of the owners of the banks of rivers not navigable, unless otherwise appropriated by statute ; and that the right, unless secured by a particular grant or prescription, is held sub- ject to legislative control.^ But by force of a grant, or by pre- scription, a person may have an exclusive right of fishery, even in an arm of the sea, or in a navigable river where the tide ebbs and flows. Thus a patent to the inhabitants of a town, conveying all lands. under water within the bounds of the grant, together with the exclusive right of fishing in the waters of the same, confers this right as the common property of the town, and may be regu- lated by rules adopted at the town meeting.* <5> 223. Although the right of fishing in a navigable river is a common right, the adjoining proprietors have the exclusive right 1 Arnold v. Mundy, 1 Halst. E. 1 ; Martin v. Waddell, 16 Peters, E. 600; Par- ker V. The Cutler M. Co. 20 Maine E. 353 ; Carter v. Murcot, 4 Burr. 2162 , The Mayor, &c., of Oxford v. Eichardson, 4 T. E. 437. 2 Stoughton V. Baker, 4 Mass. E. 527 ; Blundell v. Cotterall, 5 B. & A. 268. ' Niokerson v. Brackett, 10 Mass. E. 212; Waters v. Lilley, 4 Pick. E. 145 ; 9 Ibid. 87 ; Cottrill v. Myrick, 3 Fairchild, 222; Lunt v. Hunter, 16 Maine E. 1. * Eogers v. Jones, 1 Wend. 237. In our busy trading age, the contemplatiye man's recreation, as " honest " Izaac Walton calls fishing, seems to be very much neglected. And, as Mr. Chancellor Kent observes, in the Commentary to which our text is largely indebted, manufacturing, machinery, and steamboats, together with the skill, cupidity, and perseverance of fishermen, have much diminished the resort of the most valuable fish into the rivers of the Northern States. But the learned Chancellor does not doubt that society has gained by the change. 142 LAW OF LANDLORD AND TENANT. [CH. VI. of drawing a seine and taking fisL. on their own lands ; and if an island, or a rock in tide-waters, be private property, no person but the owner has the right to use it for the purpose of fishing.^ It may be observed, also, that in Pennsylvania the doctrine which holds no rivers to be navigable, so as to confer the common right of fishery except those where the tide ebbs and flows, is not applicable to the great rivers of that State ; and that the owners of land on the banks of such rivers as the Delaware and Susquehannah, so far as they are common highways, have no exclusive right of fishing opposite their respective lands. The right to such fish- eries is declared to be vested in the State, and open to all the world.2 A similar exception to the common law rule has been sug- gested to exist in North and South Carolina, and probably in other States.^ The property which the law gives in river-fish uncaught is of that kind which is called special or qualified property, and is derived out of the right to the place or soil where such fish live ; a man has a special property in them so long as they are upon his land, or in the water which flows over it ; but he loses such pro- perty the moment they resort to the soil or water of another. However, if an individual plants a bed of oysters, even in a bay or an arm of the sea, and marks it out by stakes, it is held to be no interference with the common right of fishing in such bay, and he acquires a qualified property in such oysters, sufficient to enable him to maintain trespass against any person who invades such property.^ (d.) Watercourses. § 224. Every proprietor of land through which a natural stream flows has a right to the advantages of that stream, flowing in its natural course, and to use it, when he pleases, for any purposes not inconsistent with a similar right in the proprietor of the land 1 Lay V. King, 5 Day, R. 72 ; Commonwealth v. Shaw, 14 Serg. & R. 9. 2 Carson v. Blazer, 2 Bin. 475 ; Shuuk v. The President, &c., of the Schuylkill NaT. Co. 14 Serg. &R. 71. = Cates V. "Waddington, 1 McCord, 580 ; Collins v. Benbury, 3 Iredell, (N. C.) B. 277. * Meet V. Hegeman, 14 Wend. E. 42. CH. VI.] WATERCOURSES. 143 above and below. But if, after having applied it to some purpose of utility, he is interrupted in doing so by a diversion, he has no right of action against the party diverting the water, unless his exclusive occupation had existed a sufficient length of time to raise a presumption of a grant to use the water, to the detriment of others who are equally entitled to the enjoyment of it with him- self.^ He cannot, without the consent of the adjoining proprietors, divert or diminish the quantity of water, which would otherwise descend to the proprietor below, nor throw back the water upon the proprietor above, without a grant, or an uninterrupted enjoy- ment of twenty years, which is evidence of it.^ Where a spring of water rises upon the land of one person, and from it flows a stream to the land of another, the owner of the land where the spring rises has no right to divert the stream from its natural channel ; although the waters of the stream are not more than sufficient for his domestic uses, his cattle, and the irrigation of his land.^ Nor can a party erect a dam above the mill of another, by which the water is diverted front its accustomed channel, so as to affect the regularity of the supply, though there is no waste of water, and it be returned to its ordinary channel long before it reached the other's mill.* Neither will he be permitted to cor- rupt a stream of water, to the prejudice of his neighbor.^ § 225. But supposing a person to have acquired a certain exclu- sive right to the enjoyment of water, he will not be permitted to make use of that right in an unreasonable manner, so as sensibly to affect the application of it by his neighbors below on the stream ; as by shutting the gates of his dams, and detaining the water unreasonably, or by letting it off in unusual quantities to the annoyance of his neighbor.'' So where two or more mills are enti- 1 Mason v. Hall, 5 B. & Ad. 23 ; Frankum v. ralmouth, 6 Car. & P. 529 ; Hatch V. Dwight, 17 Mass. E. 289 ; Strickler v. Todd, 10 Serg. & E. 6^ Howard v. Eobinson, 3 Mason, E. 272. ^ Belknap v. Trimble, 3 Paige, E. 577 ; Gardner v. Village of Newburgh, 2 Johns. Ch. E. 162; Ibid. 463; Merritt v. Parker, 1 Cox, (N. J.) E. 460; Wright V. Howard, 1 Sim. & Stu. 190 ; Bealey v. Shaw, 6 East, E. 208 ; 11 A. & E. 571. s Arnold v. Poot, 12 Wend. E. 330. * 7 Moore, 345 ; Mason v. Hill, 5 B. & Ad. 571 ; 1 S. & S. 190. ^ Howell V. McCoy, 3 Raw. 269. "• Van Bergen v. Van Bergen', 3 Johns. Ch. E. 282 ; Beissell v. Strong, 4 Dal. 144 LAW OE LANDLORD AND TENANT. [CH. VI. tied to a common use of water, the owner of the upper mill must afford the lower one a fair and reasonable participation in its use.^ But no action can be sustained by one riparian proprietor against another for erecting a dam on the stream, whereby the water is raised along the plaintiff's land above its natural level, without proof of special damage.^ § 226. If a man neglects to keep his dam in proper repair, and, in consequence of such negligence, his neighbor's dam and mill below are injured, he -will be responsible for the damage. But if the dam has been built upon a proper model, and the work well and substantially done, he -will not be liable though it break away by force of the water, and the lower dam and mill be destroyed.^ Where a dam is erected upon an ancient stream, to obtain a head of water for the use of one of the State canals, the surplus ivaters of the stream not wanted for public use, and which continue to flow over the dam and down the ancient channel, belong to the owners of water-rights upon the margin of the stream below, in the same manner as if the State dam had not been erected ; and a lessee of the surplus waters of the canal cannot divert them, to the injury of the proprietors of mill-privileges on the stream below. No person, however, except by the authority of the legislature, or of the authorized agents of the State, has a right to tap the State- dam and draw off the surplus waters of the artificial pond, which is created by such dam for public purposes.* <§. 227. The right to the enjoyment of this or any other ease- ment may be controlled by a grant, or by prescription, which sup- poses a grant , for though the stream be diminished in quantity, or injured by the exercise of certain trades, yet if the party so using it has enjoyed his occupation for twenty years, he has acquired a prescriptive right to such use, and the party below must take the stream subject to such adverse right ; it having E. 211 ; Colburn v. Richards, 13 Mass. K. 420 ; Eannells v. Bullen, 2 N. H. B. 532. 1 Merritt v. Brinkcrhoff, 17 Johns. E. 304. 2 Garrett v. McKie, 1 Richardson, 444. " Livingston v. Adams, 8 Cow. E. 175. ■* Varick v. Smith and the Attorney-General, 5 Paige, R. 137. CH. VI.] WATBRCOURSBS. 145 been repeatedly held that the exclusiye enjoyment of water in a particular way for twenty years, without interruption, becomes an adverse enjoyment sufficient to raise a presumption of title, as against a right in any other person, which might hare been, but was not asserted.^ , § 228. Neither is it necessary that the person claiming such right should have used it in precisely the same manner during that time, or that it should have been used to propel the same machinery ; all that the law requires is, that the mode or manner of using the water should not have been materially varied to the prejudice of others. Therefore, if a proprietor at the head of a stream has changed the natural flow of the water, and continued such change for more than twenty years, he cannot afterwards be permitted to restore it to its natural state, when it will have the effect of destroying the mills of other proprietors below, which have been erected in reference to such change in the natural flow of the stream.^ But if a man has had the use of water at a given height for twenty years, a grant will be presumed of the privilege of using it at that height, and nothing more ; and if he repairs his dam, which has kept the water at that height, so as to raise the water still higher, and flow it back upon his neighbor's mill, he is liable to an action, though the dam itself remain at its ancient height ; for the question is not as to the height of the dam, but of the water.^ ' § 229. A grant of land, bounded upon a river or stream where the tide does not ebb and flow, carries the right of the grantee to the middle of the stream, unless the language of the grant is clearly such, as to show the intent of the parties to be that it should not extend beyond the water's edge. If the stream is navigable for either boats or rafts, the public have a right to use it for those purposes, and the rights of the adjoining proprietors 1 Campbell v. Smith, 3 Halst. E. 139 ; Cooper v. Smith, 1 Serg. & R. 26 ; Sherwood v. Burr, 4 Day, R. 244; Brown !/. Best, 1 Wils. R. 174; Barker v. Richardson, 4 Barn. & Aid. 578 ; 2 B. & Cr. 686 ; Livatt v. Wilson, 3 Bingh. R. 115. 2 3 Kent, Com. 442 ; Belknap v. Trimble, supra; Blanchard v. Baker, 8 Greenl. 253 ; Hazard v. Robinson, 3 Mason, 272. 3 Stiles V. Hooker, 7 Cow. R. 266. 13 146 LAW OP LANDLORD AND TENANT. [CH. TI. are subject to the public easement.^ They may use the water, or the land under the water, in any manner which does not impair its use as a public highway ; but they cannot erect dams, or place other obstructions in the stream, which will interfere with its free and convenient use for public purposes. Nor can the state divert the water of the stream, or interfere with it in any other manner that will render it less useful to the proprietors of the adjacent shores, without making full compensation.^ Neither have the public any right, without a special custom, to go upon the banks of navigable rivers, for the purpose of towing vessels. But a pre- scriptive right to a public towing-path is not destroyed in conse- quence of an act of the legislature, converting that part of the river adjoining a towing-path, into a floating harbor. And if either the water, or the improvement, impair the facility of passing along the bank, the public shall have a reasonable way over the nearest part of the next field.'' § 230. A novel, and rather curious question, has been recently mooted in England, which deserves to be noticed here, as to whether the right to the enjoyment of an underground spring, or of a well supplied by such spring, was governed by the same rule of law as that which regulates watercourses, flowing on the sur- face. It was an action on the case, for damage sustained by the loss of the water from a well, in the plaintiff's close, occasioned by the defendant's digging a coal-pit, about three quarters of a mile ofl". The well had been constructed for twenty years, and was used for working a cotton-mill. Chief Justice Tindal, after stating that' the rule which governs streams running in their natural courses, either assumes for its foundation the implied assent and agreement of the proprietors of the different lands, or may be considered as a rule of positive law ; concludes there can be no ground for infer- ring any mutual consent or agreement for ages past, between the owners of the several lands beneath which underground springs 1 Adams v. Pease, 2 Conn. E. 481 ; Claremont v. Carlton, 2 N. H. E. 369 ; 7 Mass. E. 496 ; Hay's Ex'rs v. Bowman, 1 Band. B. 417 ; 3 Greenl. E. 269-474 ; 4 Pick. E. 268 ; 1 Halst. E. 1 ; 3 Ohio, B. 495 ; 5 Har. &. Johns. E. 195 ; People V. Seymour, 6 Cow. E. 579 ; 20 Johns. E. 90. ^ The People v. The Canal Appraisers, 13 Wend. E. 355 ; Ex parte Jennings, 6 Cow. E. 548. 3 Ball V. Herbert, 3 Term E. 253 ; Rex v. Tippctt, 3 B, & A. 193. CH. VI.J REMOVAL OP ADJOINING BUILDING. 147 exist, and, consequently, no trace of positive law can be inferred from long-continued acquiescence ; and that, therefore, the case did not fall within the rule which obtains as to surface streams, but rather within that principle which gives to the owner of the soil all that lies beneath its surface ; the damage occasioned to another by the exercise of such a right, being considered absque injuria.^ (e.) Bemoval of Adjoining Building. § 231. If a man finds it necessary to pull down a house, and gives due notice of his intention, and of the time of doing so, to the owner of the adjoining building, he is not answerable for any injury the owner of such house may sustain by the operation, pro- vided he removes his own with reasonable and ordinary care.^ But the owner of the premises adjoining those pulled down, must also shore up his own building, and do every thing proper to be done upon it for its preservation ; and if he neglects to take such precaution, he is without remedy, for any injury it may sustain, unless it clearly appear that the pulling down by the other was done in so wasteful, negligent, or improvident a manner, as to occasion greater risk, than in the ordinary course of doing the work, ought to have been incurred.^ § 232. Whether due caution has been used, is, in every case, ' a question of fact for a jury, depending upon its o-vtn peculiar cir- cumstances. Thus, in a recent case, the action was brought for digging the foundation of an intended building, on a piece of land next adjoining the house of the plaintiff, so carelessly that the walls and foundations of the plaintiff's house sunk and gave way. On the trial it appeared, that the defendants excavated on their 1 Acton V. Blundell, 12 Mees. & "Wels, 324. 2 Thurston v. Hancock, 12 Mass. E. 220; Panton v. Holland, 17 Johns. E. 92 ; Peyton v. St. Thomas Hospital, 9 Barn. & Cr. 725 ; Massey v. Gayner, 4 Car. & Payne, 161. 3 "Walters v. Pfeil, Mood. & Malk. 364 ; Per Ld. Tenterden, 4 Car. & P. 161 ; Wyatt V. Harrison, 3 B. & Ad. 871 ; Trower v. Chadwick, 3 Bingh. N. C. 334 ; 3 Scott, 699 ; 4 Car. & P. 1 61 ; Dodd v. Holme, 1 Ad. & El. 493 ; 3 Ney. & Mann. 739. 148 LAW OF LANDLORD AND TENANT. [CH. VI. own ground about six feefc deep, and came within about four feet from the plaintiff's house. After the excavation, the plaintiff's gable wall bulged, and the defendants made an ineffectual attempt to shore it up, but it gave way in all directions, and it became neces- sary to rebuild. The case was held to turn upon the question, whether the fall of the wall was occasioned by the defendant's negligence, or by its own infirmity. And, that in inquiring whether the injury was owing to the neglect of the defendants, the state of the premises must be taken into consideration by the jury ; that if the wall was so infirm as to be unable to sustain itself six months longer, still the defendant had no right to accel- erate its fall, and that such a state of the wall would render more care necessary on the part of the defendant, not to hasten its dis- solution.^ So, in an action on the case, for negligently an-d care- lessly excavating the defendant's own land, and thereby with- drawing the support from the plaintiff's house, which the declara- tion alleged it was entitled to ; it appeared that, for about twenty- six years the plaintiff had rested his house upon a wall belonging to the defendant, by permission originally from the defendant ; and that excavating too near his wall, the defendant had caused it to sink, and thereby injured the plaintiff's house, which rested against it ; upon a special verdict of the jury, that the excavation was made in a careless and unskilful manner, the court sustained the action.^ (f.) Right to Support from Neighboring Soil and Buildings. § 233. A proprietor of land is not, however, at liberty to dig and mine at pleasure on his own soil, without considering what effect such excavations must produce upon the land of his neighbor ; since the withdrawal of the lateral support would, in many cases, cause the falling in of the adjoining land ; and this right of support is an easement necessarily attached to the soil.^ But if any thing has been done to increase the lateral pressure, — as where build- ings have been erected, — it is settled, that no man has a right to 1 Dodd V. Holme, 1 Ad. & El. 493 ; 3 Nev. & Maun. 739 ; Pierce v. Musson, 17 Louis. E. 389 ; 3 Bingh. N. C. 334 ; 4 Car. & P. 161. 2 Brown v. Windsor, 1 C. & J. 20. 3 Hay V. The Cohoes Company, 2 Comst. B. 161. CH. VI.] NEIGHBORING SOIL AND BUILDINGS. 149 the increased support necessary to sustain such building, unless it is of ancient erection.^ If a house has stood twenty years, it is now considered to have acquired the rights of an ancient house, whatever they may be ; and though without negligence on the part of the excavator, cannot be lawfully disturbed by deep exca- vations, or other improvements on adjoining lots. But otherwise a person may make reasonable improvements and excavations on his own ground, though they should injure or endanger an edifice on the adjoining land, by digging near, and deeper than its foun- dations, provided he exercises ordinary care and skill ; and the injured party does not possess any special privileges protecting him from the consequences of such improvements, either by pre- scription or by grant.2 So in a case where a man had built to the extremity of his soil, and enjoyed his building above twenty years. Lord Ellenborough held, upon analogy to the rule as to light and air, that he had acquired a right to support, or, as it were, of leaning to his neighbor's soil, so that his neighbor could not dig so near as to remove the support, but that it was otherwise of a house newly built.^ § 234. But a house will not have the privilege of support as an ancient erection, if it appears to have been built upon ground pre- viously excavated. In a recent case, the plaintiff was possessed of two houses, one an ancient one, and the other built long within twenty years, upon his own land, and considerably within his own boundary, the defendants excavated so near their boundary as to cause damage to the plaintiff's buildings, one of which stood upon ground which had been previously excavated. The court held, that if a man builds his house at the extremity of his land, he does not thereby acquire any right of easement for support, or other- wise, over the land of his neighbor ; he has no right to load his own soil so as to make it require the support of that of his neigh- 1 Lord Tenterden in Wyatt v. Harrison, 3 B. & Adol. 874. la the city of New York; the foundation of every building must be not less than six feet below the street, or sidewalk directly in front of it ; and if not, the owner will not be entitled to recover damages, by the erection, with ordinary care, of an adjoining building. Laws of New York, 10 April, 1818. 2 Lasala v. Holbrook, 4 Paige, R. 169 ; Eichart v. Scott, 7 Watts, R. 460. 3 Callendar v. Marsh, 1 Pick. K. 434 ; Stansell v. Tollard, 1 Sel. N P. 444 ; Wyatt V. Harrison, 3 B. & Ad. 871. 13* 150 LAW OF LANDLORD AND TENANT. [CH. VI. bor, unless he has some grant to that effect ; that if the land, on which the plamtiff's house -was built, had not been previously excavated, the defendants might, without injury to the plaintiff, have excavated to the extremity of their land. And if the plain- tiff had not built his house on excavated ground, the mere sinking of the ground itself would have been without injury. He had, therefore, by building on ground insufficiently supported, caused the injury to himself without the defendants' fault ; unless, at the time, by some grant, he was entitled to additional support from the land of the defendants. There were no circumstances in this case from which to infer any such grant, as to the new house, because it had not stood twenty years ; nor, as to the old house, because, though erected more than twenty years since, it did not appear that the coal under it might not have been excavated within twenty years ; and no grant could, at all events, be infer- red ; nor could the right to any easement become absolute, until after the lapse of at least twenty years from the time when the house first stood on excavated ground, and was supported in part by the defendants' land.^ § 235. There is also a condition imposed upon the party enti- tled to support, that he shall do nothing to increase the burden imposed upon his neighbor, as by neglecting to keep his premises in sufficient repair ; for if, in making an excavation, the adjoining building falls in consequence of its infirm condition, it is not a damage done by the excavation ;2 and yet it appears, from the same decision, that if the building, in the ordinary progress of decay, would have fallen in a short time, the neighbor had still no right to accelerate its fall, by removing its support. And where the owner of a lot builds upon it, he builds at his own peril ; for it is not possible for him, merely by building upon his own ground, to deprive any other party of the use of his, in such manner as he or they shall deem most advantageous.^ 1 Partridge v. Scott, 3 Mees. & Wels. 220. In all that class of cases -where the mode of enjoyment is turned into an ahsolute right by custom, grant, or prescrip- tion, the party is entitled to protection against any alteration of the adjacent pre- mises, by which he may in any way be injured. Per Gardiner, J., in Hay v. The Cohoes Co., supra. 2 Per Taunton, J., in Dodd v. Holme, 1 Ad & El. 506, supra. 3 Thurston v. Hancock, 12 Mass. 221. CH. VI.] EASEMENT, HOW CREATED OR EXTINaUISHBD. 151 -^ 236. Where a party is entitled to the easement of support from his neighbor's building, the premises can only be used in subjection to such easement. And it will be an invasion of that right if he does any injury to his neighbor's building in pulling down his own, although done with ever so much care. So where there had been a grant of the minerals under the land, and the defendant removed them in such a manner as to cause the surface of the earth to fall in, this was held to be a violation of the ease- ment of support, which the plaintiff was entitled to, however done.^ A liberty to hang out linen to dry, on lines passing over the soil of another, is an easement which is recognized in the books. But as the plaintiff, in the case referred to, claimed a liberty for himself and the other tenants to hang linen as often as they had occasion to do so, at their free will and pleasure, and the jury found that he had liberty to dry the linen of his own family only, he was nonsuited.^ (g.) How an JEasement may he Created or Extinguished. <§> 237. The origin of every easement is to be referred to some agreement express or implied. It can only be created by a grant, or by prescription which supposes a grant ; and uninter- rupted possession or enjoyment is held to be sufficient evidence from which a jury may presume a grant.^ A mere license is not sufficient for this purpose ; and where a man, for a valuable con- sideration, gives another the liberty to cut a drain, or the like, over his premises, although it gives no interest in the land itself, it is yet a claim to a freehold right, and cannot be created without a deed.* So the right of permanently occupying one's own land, in such a manner as to deprive the adjoining owner of an ease- ment, cannot be acquired by a parol license ; such license being revocable, even after it has been executed. But a license is a justification for acts done under it, while unrevoked ; and the defendant may give such parol license in evidence, and defeat the 1 Trower v. Chaawick, 3 Bing. N. C. 334 ; S. C.3 Scott, 699 ; Harris!;. Ryding, Gale & Whatley, Law of Easements, 265. 2 Drewell v. rowler, 3 B. & Ad. 735. 3 Lasala v. Holbrook, 4 Paige, 169 ; Kex v. Harrow, 4 M. & S. 565. * Cook V. Stearns, 1 Mass. 533 ; Tliompson v. Gregory, 4 Johns. 81 ; Hays v. Eichardson, I Gill & Johns. 366. 152 LAW OF LANDLORD AND TENANT. [CH. VI. plaintiff's claim for damages sustained while the license remained unrevoked. 1 § 238. Easements, like all other incorporeal rights, can only be assigned by an instrument under seal ; a paper writing, how- ever, or even a parol declaration, may be made use of as evi- dence, to show the character of an act done, or a cessation of enjoyment.^ Being rights attached to the estate, and not to the person of the owner of the dominant tenement, easements follow the estate into the hands of an assignee or lessee. They are also a charge upon the servient tenement, and follow it into the hands of any person to whom such tenement, or any part thereof, is subsequently conveyed. As the right is annexed to the estate, for the benefit of which the easement or servitude is created, it is not destroyed by a division of the estate to which it is appurte- nant. The assignee of any portion of that estate may claim the right, so far as it is applicable to his part of the property ; pro- vided the right can be enjoyed, as to separate parcels, without any additional charge or burden to the proprietor of the servient tenement.^ § 239. A mere change in the mode of enjoyment will not destroy an easement ; nor will the pulling down of a house, for the purpose of repair, cause the loss of any easement attached to it, provided there is evidence of an intention to rebuild it within a reasonable time.* But it may be extinguished by a renunciation of the party, either express or implied ; or by permitting the party, from whom the servitude is due, to build on the property such works as presuppose an abandonment of the right.^ It may also be lost by mere nonuser, for a less period than twenty years, unless an intention of resuming the right within a reasonable time is shown, when it ceased to be used.^ In a recent case, it appeared that the plaintiff, having some ancient windows, pulled down the wall in which they were situated, and rebuilt it on the 1 Miller v. The Auburn & Syracuse K. R. Co. 6 Hill, (N. Y.) E. 61. 2 Co. Lit. 264, bj Com. Dig. Eelease, (A. I.), (B. I.) -3 Hills V. Miller, 3 Paige, E. 254. ' Hall V. Swift, 4 Bing. N. C. 381 ; Luttrell's Case, 4 Co. 86. 5 Taylor v. Hampton, 4 McCord, R. 98. *■ Corning v. Gould, 16 Wend. E. 531. OH. VI.] BASEMENT, HOW CREATED OR EXTINGUISHED. 1.53 Tvall of a stable, without any window. About fourteen years after this the defendant erected a building in front of this blank wall, and, after such building had remained there about three years, the plaintiff reopened the window in the same place that one of the ancient windows had formerly occupied, and brought his action for the "obstruction to his newly-opened window, by the defendant's building, but he was not permitted to recover. Mr. Justice Abbott, in delivering his judgment, said, if a person enti- tled to ancient lights pulls down his house, and erects a blank wall in the place of a wall in which there had been windows, and suffers that blank wall to remain for any considerable period of time, it lies upon him at least to show, that at the time when he so erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, that was not a perpetual but a temporary abandonment of the enjoyment, and that he intended to resume the enjoyment of those advantages within a reasonable time. And the other justices concurred that the right to light, air, and water, is acquired by enjoyment ; con- tinuing so long as the party either continues that enjoyment or shows an intention to continue it, and that the ceasing to enjoy destroys the right, unless at the time when the party discontinues the enjoyment, he does some act to show that he means to resume it within a reasonable time.-' § 240. In another case, Tindall, C. J., said, suppose a person, who formerly had a mill upon a stream, should pull it down and I Moore «. Eawson, 3 B. & C. 332; S. C. 5 Dow. & Ey. 254; Manning v. Smith, 6 Conn. E. 289 ; Prichard v. Atkinson, 4 N. H. E. 1. The case in the text has been adopted, rather for the sake of illustrating a principle applicable to the extinguishment of easements in general than to lights in particular. In fact, the modern English doctrine on the subject of lights and air is held to be an anomaly in the law, and has not been generally adopted in the United States. It cannot be applied in the growing cities and villages of this country, without producing mischievous consequences ; and, indeed, seems never to have been sanctioned in Westminster Hall until 1786, in the case of Darwin v. Upton, 2 Saund. 175, which was a clear departure from the old law. Bury v. Pope, Cro. Eliz. 118; 3 Kent, Com. 446 ; Hoy v. Sterret, 2 Watts, 331 ; Parker v. Poote, 19 Wend. 309. In South Carolina, however, it has been held to be a reasonable right, contributing to the comfort and value of a person's habitation. McCready v. Thompson, 1 Dudley, E. 131 . And, in New Jersey, the Chancellor prevented by injunction the obstruction of light enjoyed for twenty-one years. 1 Green, Ch. E. S7. 154 LAW OP LANDLORD AND TENANT. [CH. VI. remove the works, -with no intention to return, could it be held that the owner of other land, adjoining the stream, might not erect a mill and employ the water so relinquished ; or that he should be compelled to pull down his mill, if the former mill- owner should afterwards change his determination and wish to rebuild his own. In such a case, it would undoubtedly be a sub- ject of inquiry for a jury, whether he had completely abandoned the use of the stream, or left it for a temporary purpose only.^ And where an ancient window had been filled up with brick and mortar for twenty years. Lord Ellenborough held the case stood as if the window had never existed.^ •Ji 241. The encroachment by one party, upon a way held in common with another, by building part of the wall of a house upon a portion of it, and inclosing another portion within a fence, work an extinguishment of the way by operation of law, especially where the other party sells his interest after such acts done, and the purchaser, on his part, acquiesces in and confirms what has been done. The acts relied on to show an extinguishment, must be such as clearly indicate an intention to abandon the right to the easement or servitude ; and where there are no circum- stances intimating the suspension to be temporary only, a bond fide purchaser will be protected in the enjoyment of the property, as it appeared at the time of the purchase. Where the case is questionable, the usual course is to leave it to the jury to say, whether they will presume a grant ; but where the fact of adverse possession is beyond dispute, the law itself raises the presump- tion.^ 1 Liggins U.Inge, 7 Bing. R. 693; Martin v. Goble, 1 Camp. E. 322 ; Garritt i-. Sharp, 3 Ad. & El. 325. 2 Lawrence v. Obee, 3 Camp. E. 514 ; Curtis v. Jackson, 13 Mass. R. 507 ; Bridges v. Blanchard, 4 Ad. & El. 176 ; 5 Nev. & Man. 567. ^ Corning v. Gould, 16 Wend. R. 531. Abandonment, is a, simple non-user of an easement, and in order to make out an effectual answer to the claim upon that ground, I find it perfectly well settled, that the enjoyment, nay, all acts of enjoy- ment, must have totally ceased for the same length of time that was necessary to create the original presumption. The non-user for twenty years, affords a pre- sumption, either that the former presumptive right was extinguished, in favor of some other adverse right, or if none such appears, that it has been surrendered if it ever existed. A mere non-user is sufficient to produce this effect, without show- ing the erection, or permission to erect, a permanent obstruction. Per Cowen, J. CH. VI.] EASEMENT, HOW CREATED OR EXTINGUISHED. 155 § 242. If the act which prevents the servitude is the act of the party having the dominant tenement, it will effect an extinguish- ment of the right. But if it is prevented by the act of God, or by the operation of the law, it will only cause a suspension of it ; for the act of a party will be construed most strongly against him- self, but he shall not be injured by an act of God or the law. So it may be extinguished by an obstruction of a permanent nature, by the party himself to whom the service is due, or by his con- sent, or by the voluntary acquisition or acceptance of any other right or privilege incompatible with the exercise of it.^ A right of way is not lost by nonuser for less than twenty years ; ^ nor can a mill-privilege be considered as extinguished or abandoned by disuse, until such disuse has continued entire and complete for twenty years. ^ But twenty-one years' occupation of land, adverse to a right of way, bars the right.^ § 243. The exclusive enjoyment of an easement for twenty years, without interruption, as we have seen, raises a presumption of title in favor of the occupant, entitling him to claim by prescrip- tion. But as prescription is founded on the supposition of a grant, the use or possession on which it is based must therefore be adverse to the claim of some other person, or of a nature indicating that it is claimed as a right, and not the effect of indulgence, or of any compact short of a grant.^ According to the English law, a pre- scription must always be laid in him that is tenant of the fee. A tenant for life, for years, or at will, cannot prescribe ; for as pre- scription, by that law, is usage beyond time of memory, it is absurd that he should pretend to prescribe whose estate com- menced within the remembrance of man ; such tenant, therefore, must prescribe under cover of the tenant in fee-simple.^ In New York, Massachusetts, and other States, it is acquired by twenty 1 Taylor v. Hampton, 4 MoCord, E. 96 ; Hall v. Swift, 6 Scott, 167. '^ Emerson v. Wiley, 10 Pick. K. 310 ; Holmes v. Buckley, 1 Eq. Cas. Abr. 27. ' Hard v. Curtis, 7 Mctcalf, 94. ■* Yeakle v. Nace, 2 "Whar. E. 123 ; Moore u.Dame Brown, Dyer, 319, b. pi. 17. ' Gayette v. Bethune, 4 Mass. E. 53 ; Lawton u. Eivers, 2 McCord, E. 449 ; 5 Pick. E. 425 ; 2 Black. Com. 265 ; Parker v. Foot, 19 "Wend. 309. It is said, however, that as respects a public navigable river, twenty years' possession of the water at a given level is not conclusive as to this right. Vooght v. Winch, 2 B. 6 A. 662. « 2 Black. Com. 265. 156 LAW OS LANDLORD AND TENANT. [CH. VI. years' uninterrupted possession. In Connecticut and Vermont, by fifteen years' possession.^ In South. Carolina, it is said to be thirty years.^ But it has been held not to exist at all in New Jersey,^ or in Pennsylvania.* And in Virginia, twenty-seven years' possession has been held to be an insufficient ground for presuming a grant.® 1 Manning v. Smith, 6 Conn. E. 289 ; Mitchell v. Walker, 2 Ails. R. 266. ' Lawton v. Rivers, 2 McCord, R. 449. 8 Ackerinan v. Shelp, 3 Halst. R. 125. " Young V. Collins, 2 Brown, 293. ^ Boiling V. Mayor, 3 Rand. R. 563. CH. VII.] OP COVENANTS. 157 CHAPTER VII. OF COVENANTS AND CONDITIONS. § 244. A LAEaE proportion of the rights and liabilities, of both landlord and tenant, arises out of the covenants between the par- ties ; some of ivhich are incident to the relation subsisting between them, and obligatory independent of positive stipulation, while others are the subject of express contract. Such rights may also be qualified or limited by a condition annexed to the estate, which may either operate as a covenant, or terminate the estate accord- ing to circumstances. Section I. Of Covenants. § 245. A covenant is defined to be an agreement between two or more persons, by a written instrument under seal, to do or not to do some particular thing. It can only be created by deed, but it may be by a deed poll, (the party being named in the deed),^ as well as by indenture ;'^ and where lands are conveyed by indenture to a person, who does not seal the deedj yet, if he enters upon the land, and accepts the deed in other matters, he will be bound by the covenants contained in it.^ Covenants are either express or implied, or, as they are otherwise termed, cove- nants in deed and covenants in law. § 246. Express covenants are such as are created by the express words of the parties, declaratory of their intention. No 1 Green v. Horn, 1 Salk. 197 ; Eande v. Ches. & Del. Canal Co. 1 Harring. 151, 233. 2 1 Eol. Abr. 517 ; Day v. Brown, 2 Ham. 346. 3 Co. Lit. 230 b. 14 158 LAW OP LANDLOKD AND TENANT. [CH. VII. precise or technical language is necessary for this purpose ; ^ it may be put in the form of a condition, an exception,^ or even a recital.^ And wherever the intent of the parties can be collected out of the instrument, for agreeing to do or not to do a particu- lar thing, it is sufficient.* Thus, if it is agreed between two persons under seal, that one shall pay the other a sum of money for his lands on a particular day, these words will amount to a covenant, on the part of the latter, to convey the lands on that day.^ So where an office had been conveyed by the plaintiff to the defendant, provided, that out of the first profits he should pay the plaintiff ^£500, it was held, that as this proviso was in the nature of a covenant, and not by way of condition or defeasance, covenant would lie.® § 247. In general, wherever circumstances exist from which a consent may be inferred, they are equivalent to an express pro- mise.^ As where a lease was made, on condition that the lessor should keep and leave the houses at the end of the term, in as good phght as he found them ; the lessee was held liable for omit- ting to leave the houses in good plight, for here an agreement was understood.^ In the case of a lease for years rendering rent, the word render was adjudged to amount to a covenant to pay rent.® But wherever the words do not amount to an agreement, or are merely conditional to defeat the estate ; as if a lease be granted provided and on condition that the lessee collect and pay the rents of the other houses of the lessor, covenant is not maintainable.^* It is immaterial in what part of the deed a covenant is inserted, for in its construction, the whole deed must be taken into conside- ' Davis V. Lyman, 6 Conn. K. 249 ; Bull v. Follett, 5 Cow. R. I70 ; Lent v. Nor- ris, 1 Burr. 290. 2 Duke of Northumberland v. Ewington, 5 Term R. 526; Holden v. Taylor, 1 Eol. Abr. 518, 1. 19; Russell v. Gulwell, Cro. Eliz. 657. 3 Penn v. Preston, Rawle, R. 14 ; Barfort v. Freswell, 3 Keb. 465. * Hallett V. Wylie, 3 Johns. R. 44; Hill o. Carr, 1 Ch. Ca. 294; 12 East, R. 182, n.; Doug. 27-766; 1 Ves. R. 316-511; Livingstone. Stickles, 8 Paige, 403. 6 Pordage v. Cole, 1 Sannd. E. 319 ; 1 Sid. 423 ; 1 Lev. 274. 6 Clapham v. Moyle, 3 Salk. 108 ; 1 Lev. 155 ; 1 Keb. 842, 860, 897. 7 Lamb v. Bunce, 4 M. & S. 275. 8 Bac. Abr. Gov. A.; Rol. Abr. 518. 5 Giles V. Hooper, Castle, 135. 11 Geery v. Reason, Cro. Car. 128 ; Cro. Eliz. 242 ; 2 Co. 71, b. CH. VII.] OE COVENANTS. 159 ration, in order to discover the meaning of the parties. Such meaning is to be collected from the whole context of the instru- ment, as well from that which precedes, as from what follows the covenant, according to the reasonable sense of the words.^ § 248. Words, in the form of an exception, may amount to a covenant ; as where a lessee agreed that he would, " during the term, plough, sow, manure, and cultivate the demised premises, (except the rabbit-warren and sheep-walk,) in a regular and due course of husbandry, according to the custom of the country;" the exception was held to be as much of an agreement as the rest of the stipulation in which it was placed, and to import a direct obligation not to plough the rabbit-warren and sheep-walk.^ So were the words, that A. should take fire-bote, without cutting more than was necessary.^ But on a covenant by a lessee, " to repair the' demised premises, (principal timber only excepted,)" the lessor was held not to be obliged to deliver the timber ; for the exception amounted to no more, than that he was to provide it ready for the defendant to carry.* § 249. Words of recital, when .joined and considered with the rest of the intent, may be the foundation of a covenant j as if a man recites in a deed, that he is possessed of a certain interest in land, and assigns it over by the same deed, and thereby covenants to perform all the agreements in the deed, if he is not possessed' of such interest, there is already a breach of the covenant.^ So, where a term for ninety-nine years, " if three persons named should live so long," recited his interest, stating that one life was in being, and assigned his term ; it was adjudged that such recital amounted to. a covenant, that the life continued.® And where a 1 Knickerbocker v. Killmore, 9 Johns. R. 106; Davis v. Lyman, 6 Cow. R. 252 ; Ludlow V. McCrea, I Wend. 228 ; Plow. 329, cited by Lord Elleuborough ; Iggul- den V. May, 7 East, 241 . 2 Duke of St. Albans v. Ellis, 16 East, 352. ' Sterenson's Case, 1 Leon. 324. * Brailsford v. Parsons, Lutw. 95 ; Stone v. Gilliam, Show. 149. 5 Levern, v. Clerke, 1 Leon. 122; Johnson v. Proctor, Yel. 175 ; 2 Brownl. 212; 2 Bos. & Pul. 25. ^ Best V. Brett, 1 Eol. Abr. 618 ; 3 Swanst. 649 ; Barton «. Pitzgerald, 15 East, E. 530 ; Barfort v. Freswell, 3 Keb. 465. , 160 LAW OF LANDLORD AND TENANT. [CH. VII. lease contained a recital of an agreement with the lessor, that the lessee should pull down an old mill, and build another ; and also contained a covenant, to keep such new mill in repair, but not for building it ; it was held that the covenant to build was imphed in the recital.^ But a recital in a covenant executed by one of the parties through misapprehension or mistake, will not be re- garded by a court of equity, as conclusive upon such party ; and evidence will be admitted to show that such recital is not true, and that it was inserted in the covenant through misapprehension or mistake.^ § 250. A proviso may, in some cases, amount to nothing more than a covenant ; as, where a lease was made to a lessee for life, with a proviso that if the lessee should die within the term of forty years, the executor of the lessee should have it for so many of the years as should amount to the number of forty, to be computed from the date of the lease ; the proviso was held only to amount to a cove- nant.^ Or if a lessee for years covenants to repair, " provided always and it is agreed that the lessor shall find great timber, &c.," this creates a covenant on the part of the lessor, to find great tim- ber by the word agreed, and it will not be a qualification of the lessee's covenant.* But if the word agreed, or some equivalent expression is not used, the proviso will not operate as a covenant on the lessor's part, but only as a qualification of the covenant of the lessee ; for words in an instrument under seal, evidently by way of condition or defeasance, will not amount to a covenant.^ Nor do words expressive of the quantity of land in a deed amount to a covenant that there is such quantity, for they are merely descriptive of the land conveyed.^ § 251. It may not be improper to notice here, some of the rules that have been laid down for the construction of covenants. The 1 Sampson v. Easterby, 9 B. & C. 505 ; 4 M. & E. 422 ; 6 Bingli. 644. 2 Eich V. Hotchkiss; 16 Day, R. 409. " Parker v. Gravenor, 2 Dy. 150, a.; Buls. 72 ; 1 Co. 155, a,. * Holden a. Taylor, Brownl. 23 ; Pordage v. Cole, T. Eaym. 183 ; Samways v. Eldsley, 2 Mod. 177. s United States v. Brown, 1 Paine, C. C. U. S. 422 ; Huddle v. Worthington, 1 Ham. (Ohio) R. 413. « Powell V. Clark, 5 Mass. R. 355 ; Beach v. Stearns, 1 Aik. 325. CH. VII.] OF COVENANTS. 161 leading rule always is, that they are to be so expounded as to carry into effect the intention of the parties, appearing on the face of the whole instrument ; not from particular expressions but ex anteeedentibus et consequentiius, according to the reasonable sense and construction of words. ^ A covenant cannot be con- trolled by a verbal agreement ; but parol evidence of fraud or mistake in a covenant, is admissible.^ Ambiguous expressions are to be construed, most strongly, against the party using them.^ But if two opposite intentions are expressed, the first in order shall be preferred ; or, If one of two things is to be done, the option is in the person who is to perform it.* Words are to be taken in their legal sense, where ,they have one, unless it is apparent, from the contract itself, without reference to any usage between the parties or their predecessors, in antecedent contracts of the same nature, to have been meant in another sense.^ All contracts must be ex- pounded with reference to their subject-matter, to which end evi- dence of the state of things existing when they were concluded, may be given ; and this rule may frequently restrain the most indefinite expressions.^ The custom of the place, if any such exists, is an implied term of every contract ; but a usage cannot be set Up in contravention of an express contract.'^ The subsequent acts of contracting parties are inadmissible to explain their original inten- tion. And the rules for the construction of all contracts are the same, whether the instrument is by parol or under seal.^ § 252. Implied covenants depend for their existence on the intendment and construction of law, and are such as the law 1 Davids v. Lyman, 6 Conn. E. 249 ; Watchman v. Crook, 5 Gill & Johns. 239 ; Quackenboss v. Ilansing, C Johns. R. 49 ; Marvin v. Stone, 2 Cow. 781 ; Iggulden V. May, 7 East, R. 241 ; Browning v. Wright, 2 Bos. &Pul. 13 ; Doe v. Abel, 2 M. & S. 541 i Kind v. Marshall, 1 Brod. & Bingh. 319. 2 Hustons V. Winans, 4 Wend. R. 163; Thompson v. White, 1 Dal. 426; I Bingh. 616 ; 1 S. & E. 464 ; McRea v. Purmort, 16 Wend. E. 460. 3 Shep. Touch. 166; Eubery v. Jervoise, 1 Term R. 234; Dan v. Spurrier, 3 B. &. P. 399; Hanover v. Clark, 3 Murphy, (N. C.) R. 169 ; 1 Harring. R. 233. * Cartwright v. Arnatt, 2 B. & P. 43; Layton v. Pearce, Doug. R. 15. 5 The Master, &c. v. Dewalden, 6 Term R. 338 ; Pavey v. Burch, 3 Miss. R. 447. 6 Doe dem. Freeland v. Burt, 1 Term R. 701 ; Hassell v. Long, 2 M. &. S. 363. 7 Gillett V. Newman, 1 Taunt. R. 137 ; Teats v. Prin, 2 Mars. 141. 8 Clifton V. Walmsley, 5 Term R. 564 ; Seddon v. Senate, 13 East, K. 63. 14* 162 LAW OF LANDLORD AND TENANT. [CH. VII. raises, from the relation of the parties to each other, in the absence of any agreement on the subject between them. Thus, if land be granted for a term of years, by the words demise or grant, without any express covenant for quiet enjoyment, the lessee, or his assigns, if ousted by rightful title, may sustain an action on the implied covenant, that the lessor warranted he had a good title at the time of executing the deed ; for the word demise imports a power of letting, as the word grant does of giv- ing ;^ although this latter word, grant, does not constitute a war- ranty when used in a conveyance of freehold estate.^ So the words yielding, and paying in a lease, imply a covenant on the part of the lessor to make payment.^ A covenant is also implied on the part of the lessee, that he will use the land demised to him in a husband-like manner, and not unnecessarily exhaust the soil, by negligent or improper tillage.* And as a consideration is necessary to every contract, it is implied that the tenant shall pay an annual rent, unless the lease was granted in consideration of a sum in gross. So a covenant by a lessee to pen and fold his flock of sheep, which he should keep upon the premises, upon such parts where the same had been usually folded, was held to amount to a covenant to keep a flock of sheep.^ § 253. It is a well-settled rule, that where there is an express covenant, the law will not imply one. Thus a covenant of war- ranty does not imply a covenant of seizin, nor under such a cove- nant can it be assigned as a breach that there was no such land as the grantor undertook to sell.^ But an implied covenant may be qualified, enlarged, or restrained, by an express covenant ; ^ as, for example, the inherent covenant for quiet enjoyment against all persons claiming title, may be enlarged by the lessor's cove- nanting against disturbances by all persons whatsoever ; or nar- 1 Grannis v. Clark, 8 Cow. K. 36; 2 Caines, R. 188; Deering u. Farrington, Preem. 367; Hackett v. Glover, 10 Mod. 142; 5 Co. 17; Ludwell v. Newman, 6 Term K. 458 ; Barney v. Keith, 4 "Wend. R. 502. 2 Spencer's Case, 5 Co. 18, a ; Browning v. Honeywood, Preem. 339-414. 8 Harper v. Burgh, 2 Lev. 206 ; Webb v. Russell, 3 Term R. 402 ; 5 Cow. R. 170; 1 Bibb, (Ky.) E. 379. * Powley V. Walker, 5 Term R. 373. 6 Webb V. Plummer, 2 B. & A. 746. « Cutler V. Powell, 6 Term R. 320 ; Vanderkan v. Vanderkan, 11 Johns. R. 122 ; ' Kent V. Webb, 7 Johns. R. 259 ; Sumner v. Williams, 8 Mass R. 201. CH. VII.] OB COVENANTS. 163 rowed by his covenanting against tlie acts of such persons only as claim through him. Yet the implied one may still subsist in the deed, provided it is consistent with, and not contradictory to, the express covenant.^ Thus, where there is an express covenant to repair a house, the implied obligation to use it in a tenant-like manner, will also form part of the contract.^ •Ji 254. Where a lessee assigns the leasehold premises, " to have and to hold the same in as ample a manner, to all intents and purposes, as the assignor might or could hold the same, and covenants that he had good and lawful right to bargain and trans- fer the premises, as above written, and that the same are free of all arrearages of rent, and other incumbrances," the covenant is limited to the acts of the assignor himself, and does not amount to a warranty of the landlord's title.^ And if, in an under-lease, the sub-lessee covenants to keep down the rent reserved in the original lease, and the superior landlord distrains, at the end of the first quarter of the under-lease, for one quarter's rent due under the superior lease, there will be no implied covenant on the part of the sub-lessor to indemnify his lessee, although the rent in the under-lease is reserved yearly.* So an express covenant against persons named restricts an implied covenant under the word demise ; ^ and an express covenant for quiet enjoyment restrains the whole of the implication in the word demise, which implies two covenants : to wit, a covenant for title, and another for quiet enjoyment.^ § 255. In order to support the apparent intention of the par- ties, covenants in large and general terms have been frequently narrowed and confined ; "^ as where the defendant sold the plain- tiff a lease for years, and covenanted that he would not do nor had done any act to disturb the plaintiff, but that the plaintiff should hold and enjoy without the disturbance of the vendor, or 1 Gates V. Caldwell, 7 Mass. E. 68; Christine v. Whitehill, 16 S. & R. 98. 2 Holford j>. Bennett, 7 Mees. & Wels. 348 ; 1 H. & W. 67. s Knickerbocker v. Killmore, 9 Johns. E. 106. ' Upton V. Ferguson, 3 Moore & Scott, 88. 5 Merrill v. Frame, 4 Taunt. 329. Line v. Stephenson, 4 Bing. 678 ; S. C. 5 Bing. 183. ' Cole V. Hawes, 2 Johns. Cas. 203 ; Miller v. Heller, 7 S. & E. 40. 164 LAW OF LANDLORD AND TENANT, [CH. VII; * any other person, it was held that the covenant was confined to acts done or to be done by the vendor, and that the words or any other person were to be referred to and regulated by the former part of the engagement.^ So a covenant that the grantors were seized of a good estate in fee, and had good right to convey, was held to be qualified and restrained by a subsequent covenant for quiet enjoyment, without let or interruption by them, their heirs, or persons claiming under them.^ § 256. We may here observe, that the distinction between express and implied covenants is important, and not merely tech- nical. Express covenants are construed more strictly than those which are implied, and may be entered into without a considera- tion, while the latter cannot.^ Implied covenants do not extend to a thing not in esse at the time of the demise ; therefore if A., in consideration that B. will build a mill upon the land, and make a watercourse through it, grants and demises the land to B. for a term of years, and afterwards stops the watercourse, B. cannot maintain covenant against him.* Such covenants are also confined to the party covenanting, and do not bind his representatives ; and though the word demise in a lease, where there is no express cove- nant for title, amounts to an implied covenant to that effect, yet if the lessor be tenant for life only, and the remainder-man oust the lessee, he has no remedy, on the merely implied covenant, against the executors of the lessor.^ § 257. The common law doctrine, of implied covenants in a deed, has ceased to be operative in the State of New York since the passage of the Revised Statutes, which declare that "no cove- nants shall be implied in any conveyance of real estate, whether such conveyance contain special provisions or not." ^ The words real estate, in this section of the statute, are sufficient to embrace an interest in land less than a freehold ; and the Supreme Court 1 Broughton v. Conway, Moor, 58 ; Gale v. Eeed, 8 East, 89 ; 1 B. & B. 319. 2 Milner v. Horton, 1 McClel. & Y. 647 ; 4 B. & C. 606. 3 Shubrick v. Salmond, 3 Burr. 1639 j May v. i'rye, Ereem. 447. * Huddy V. Fisher, 1 Leon. 278. s 6 Bingh. E. 656. 6 1 E. S. 739, § 140. CH. VII.J OF COYENANTS. 165 has decided, that this provision extends to implied covenants in leases for years, as well as in conveyances for life or in fee.^ The indemnity of a purchaser or lessee, for a failure, or other defect of title, in cases free from fraud, therefore now rests entirely upon the express covenants in the deed. The wisdom of this provision of law, however, of compelling parties to meet every possible case which may happen by an express contract, rather than rely upon the more general extent of implied covenants, as understood by the law, seems very questionable. By attempting to do so, the object is often entirely frustrated ; and those things which would unquestionably come within the general principle of a covenant in law are frequently passed over, by a vain attempt at an enumera- tion of particulars which is intended to have the same eifect. § 258. In a simple contract, a promise made for the benefit of a third person is valid, and may be enforced by the promisee, if he has an interest in the subject-matter of the promise ; but where the contract is under seal and inter partes, no one but a party to the instrument can maintain an action for a breach of it.^ An indenture, not iriter partes, will have the operation of a deed-poll, on which an action may be maintained by a party not executing ; as where A. covenanted with B. to pay him a certain sum of money, and, in the same instrument, also covenanted with B. and C. to pay C. another sum of money ; the court were of opinion, that as this was not an indenture between parties, but only a deed- poll, the party might covenant with a stranger, and also with other persons, to do several other acts, for which every one severally might bring his action.^ But, by a deed inter partes, one who is a party to the deed cannot covenant with another who is no party to it ; even for the performance of acts expressly for such third person's benefit.* Yet if one who is a; mere stranger, and not named a party, (the instrument being inter partes,') covenants with another who is named, and seals the deed, he is bound by 1 Kinney v. Watts, 14 Wend. 38. 2 Spencer v. Field, 10 Wend. K. 87 ; Stone v. Wood, 7 Cow. E. 454. 5 Lowther u. Kelly, 8 Mod. E. 115 ; Lucke v. Lucke, Lutw. 93 ; Cooker v. Child, 2 Lev. 74. ■• Haskett v. Flint, 5 Blackf. (Ind.) E. 69 ; Bleecker v. Bingham, 2 Paige, E. 246. 166 LAW OF LANDLOBD AND TENANT. [CH. VII. Ms sealing. As where one agreed to let a house to another at a certain rent, and a stranger covenanted, on behalf of the lessee, that the lessee should pay the rent ; it was held that on this deed the defendant, although not a party, was clearly liable to an action of covenant, in consequence of his having sealed.-^ § 259. No action of covenant can be maintained against a les- see claiming under a deed-poll, nor can mutual covenants arise under such an instrument, as it is the deed of one party only.^ It would, therefore, be unsafe to dispense with the execution of an indenture by the lessee, on the assumption that his entry and enjoyment under the lease would be sufficient to expose him to an action for a breach of any of the covenants to be performed by him. A covenantee, however, without executing the deed, may bring an action of covenant against the covenantor, whether the instrument be by deed-poll or indenture ; for the execution by a covenantor fixes his liability.^ § 260. Covenants in a deed that extend to a thing in esse, par- cel of the demise, and benefit the estate, run with the land, and bind not only the covenantor and his personal representatives by privity of contract, but also the assignee, though not named, and every other person who is in of any estate created by, or grow- ing out of, the original demise by privity of estate. And if they relate to a thing not in esse, but the thing to be done is upon the land demised, as to build a house or wall, the assignee, if named, is bound by the covenant. But if they do not touch or concern the thing demised, as to build a house on other land, or to pay a collateral sum to the lessor, the assignee, though named, is not bound ; such covenants being considered mere personal covenants, not affecting the land demised, but merely collateral to it.* 1 Storer v. Gordon, 3 M. & S. 322 ; 6 Ibid. 75 ; Wheelright v. Beers, 2 Halst. E. 391 ; Berkley v. Hardy, 5 B. & C. 355 ; 8 D. & E. 102 ; 2 B. & B. 333 ; Lord Southampton v. Brown, 6 B. & C. 718. 2 Chancellor v. Poole, 2 Doug. 764 ; Haines v. Morris, 1 Ves. & B. 14 ; "Wilkins V. Fry, 1 Meriv. 266 ; Sutherland v. Lishman, 3 Esp. 42 ; Kimpton v. Eve, 2 Ves. & B. 353. 3 Petrie v. Busy, 3 Bam. & Cress. 353 ; 5 D. & E. 152 ; Vernon u. JeflFreys, 2 Stra. 1146; 7 Mod. 358. * Spencer's Case, 5 Co. 16 ; Bally v. "Wells, Wilmot, 344 ; Mayor of Conglelon V. Pattison, 10 East, E. 130. OH. VII.j OF COVENANTS, 167 § 261. In order that a covenant may run with the land, its performance or nonperformance must affect the nature, quality, or value of the property demised, independent of collateral circum- stances, or must affect the mode of enjoyment.^ It must not only concern the land, but there must also be a privity of estate between the contracting parties ; for if a party covenant ivith a stranger to pay a certain rent, in consideration of a benefit to be derived under a third person, it cannot run with the land, not being made with the person havmg the legal estate .2 And if the assignee of the reversion or term come in of a different estate to that held by the lessor or lessee, he cannot sue or be sued on the covenants running with the land, for want of privity .^ Thus if a party, having only an equitable fee in a freehold, grant a lease, and then devise the equitable fee to A., and, after the death of the testator, A. acquires the legal estate from the person in whom it was vested at the time of the lease and devise, and then sell and convey the legal estate to B., the latter cannot sue the lessee or his assignees, because he is not in of the same estate as the lessor.* There is no difference between express and implied cove- nants, as to their running with the land;'' but mere equitable covenants do not run with the land.^ "^i 262. All implied covenants, however, run with the land, as for quiet enjoyment ; '' to insure, if the insurance is to be laid out in rebuilding ; ^ for further assurance ; ^ to repair ; ^^ to discharo-e the lessor from all taxes and assessments, ordinary or extraordi- nary ; 11 to permit the lessor to have free passage to two rooms ' 1 Norman u. Wells, 17 Wend. R. 13,6. 2 Demarest v. Willard, 8 Cow. E. 206 ; Webb v. Eussell, 3 Term E. 393 ; Allen V. Wooley, 1 Blackf. (Ind.) K. 149. But see Willard v. Tillman, 2 PEU, (N. Y.) E. 275. » Co. Lit. 215 ; 1 Saund. 240, a. * Whitton V. Peacock, 2 Scott, 630; S. C. 2 Bing. N. C. 411. 6 Vyvyan v. Arthur, 1 B. & C. 410 ; S. C- 2 D. & E. 678. ^ Whittemore v. Peacock, supra. '' Suydam v. Jones, 10 Wend. E. 180 ; Hunt v. Amidon, 4 Hill, (N. Y.) E. 345 ; Noke V. Awder, Cro. Eliz. 436 ; 3 B. & A. 392. 8 Vernon v. Smith, 5 B. & A. 1. s Middlemore v. Goodale, Cro. Car. 503; 12 East, 464. w Demarest v. Willard, 8 Cow. E. 206 ; Dean and Chapter of Windsor's Case, 5 Eep. 24 ; Shelby v. Hearne, 6 Yerg. E. 512. 11 Post V. Kearney, 2 Comst. E. 394 ; Martin v. Baker, 5 Blackf. (Ind.) E. 232. 168 LAW OF LANDLORD AND TENANT, [CH. V|I. excepted in the demise ^ ; to cultivate the land in a particular manner ; ^ to reside on the premises ; ^ to maintain a partition fence ; * and not to carry on particular trades.^ A covenant by a lessor to supply two houses with water, at a rate therein men- tioned for each house, runs with the land ; and, for a breach of it, the assignee of the lessee may maintain an action against the reversioner ; ^ but a covenant by a lessor to pay, on a valuation, for all trees planted by the lessee, does not run with the landJ Where there was an exception in the lease of an entry, with liberty to wash in the kitchen and a passage there for that pur- pose, it was held that an action would lie against an assignee for hindering the lessor ; because a covenant relating to a way, or other profit appurtenant, goes with the tenement and binds the assignee.^ The right of renewal, also, constitutes a part of the tenant's interest in the land, and a covenant to renew is conse- quently binding upon the assignee of the reversion. The grant of an additional term is, in fact, for many purposes considered as a continuation of the former lease ; and if there is nothing in the lease to show that the renewal was intended to be confined personally to the lessee, the right under the covenant devolves upon his executors, without their being particularly named.^ § 263. But the covenants of seizin, of a right to convey, and against incumbrances,^" are pe/sonal covenants, not running with the land, or passing to an assignee ; for, if not true, there is a breach of them as soon as the deed is executed, and they become mere choses in action, which are not technically assignable.^^ So 1 Cole's Case, 1 Salk. 196; 1 Show. 389; Carth. 232. 2 Cockson V. Cock, Cro. Jac. 125. ^ Mayor of Congleton v. Pattison, 10 East, E. 136. " Kellogg V. Eobinson, 6 Verm. E. 276. 5 Tatem v. Chaplin, 2 H. Black. 133. » Jourdan v. Wilson, 4 Barn. & Aid. 266. 7 Grey v. Cuthbertson, 2 Chit. 482 ; 4 Doug. 351. 8 Cole's Case, 1 Show. 388 ; Carth. 323. ^ Wiuslow V. Tighe, 2 Ball & Beat. 195; Eandall u. Eussell, 2 Meriv. 197; Hyde u. Skinner, 2 P. "Wms. 196; Eoe dem. Bamford v. Hayley, 12 East, 469 ; Vernon v. Smith, 5 Bam. & Aid. 11. w Sprague v. Baker, 17 Mass. E. 588; 5 Cow. E. 117; Gilbert v. Bulkley, 5 Con. 262. u 4 Kent, Com. 459 ; 2 Johns. E. 1 ; 3 Marsh. E. 324; Chapman v. Holmes, 5 Halst. E. 20 ; Bickford v. Page, 2 Mass. 455. Por the same reason, covenants CH. Virl] OF COVENANTS. 169 a covenant on the part of the lessor to pay the lessee, without saying his assigns, for a building not yet erected, but to be built during the term, does not run with the land.^ Covenants run- ning with the land are divisible, and will bind the assignee of a parcel of the estate demised, in respect of the parcel assigned to him, as to repair ; ^ or pay rent of the part occupied by him.^ But, as respects the liability of a lessee, we may observe that it is not altered by a transfer of the whole or part of his estate ; for his privity of contract with the lessor is not thereby determined, and he still remains liable on his covenant to pay the entire rent.* § 264. Covenants are also, either joint or several, and some- times both joint and several. Whether a covenant is joint or seve- ral, depends upon the subject-matter of the covenant, and the interest that passes by it. The interest which the covenantees have in the performance of the covenant, will generally determine the question whether the right of action given by it, be joint or several.^ If two lessees covenant jointly and severally at the beginning of a lease, these words extend to all their subsequent covenants, notwithstanding the intervention of covenants on the part of the lessor.® And where a person covenants with two or more, and with each of them, if each of the covenantees takes a several interest or estate, the covenant is several ; but where the interest is joint, the word each makes no difference, and does not constitute a separate covenant.'' It has been held, also, that a covenant with two and every of them, was joint, though the two were several parties to the deed,^ for there is a difference where the parties covenant jointly and severally, and where they cove- nant with them and every of them ; in the former case the cove- that are broken before an assignment do not pass as incident to the land. Shelbr V. Hearne, 6 Yerg. E. 512. 1 Thompson v. Rose, Cow. R. 266. 2 Congham v. King, 1 Eol. Abr. 522. 3 Stevenson v. Lambard, 2 East, E. 575. * Cro. Eliz. 633. s Slingsby's Case, 5 E. 18, b; James v. Emery, 8 Taunt. 248; Quaokenboss v. Lansing, 6 Johns. E. 49 ; Withers v. Birch, 3 B. & C. 254. s Duke of Northumberland v. Errington, 5 Term E. 522. 7 Anderson v. Martindale, 1 East, 497 ; Mansell v. Burredge, 7 Term E. 352. 8 Southcote V. Hoare, 3 Taunt. 89; Sorsbie v. Park, 12 M. & W. 146. 15 170 LAW OF LANDLOED AND TENANT. [CH. VII. nantees may have separate actions. And though a covenant with several persons be joint and several in the terms of it, yet, if the legal interest and cause of action be joint, the action must be brought by all the covenantees ; on the other hand, if the interest and cause of action be several, the action may be brought by one only, though the terms of the covenant be joint.^ On a joint covenant by two, if one die, the survivor only can be sued at law ; and if both be dead, the representative only of the survivor.^ § 265. "Whether covenants are dependent or not, is to be col- lected from the sense and meaning of the parties ; and their pre- cedency depends on the order of time in which the intent of the transaction requires their performance, and not on the order in which they stand in the deed.^ Where a covenant is part only of the consideration on one side, it is an independent, covenant, and not a condition precedent.* If one party covenant to do one thing, the other party doing another, it is not a condition prece- dent, but a mutual covenant.^ Where one party bound himself to labor for another three years, and the other party agreed to provide for him a suitable dwelling-house, and pay him a certain sum every three months during the term ; it was held, in an action for negligently doing the work, that the covenant to provide the house, was a distinct and independent covenant.^ If there be any consideration for the covenant of one party, besides the covenants of the other, and that consideration has been received by the former, his covenant will be considered as independent.'' But where acts are to be done simultaneously, and each is the conside- ration of the other, the covenants are dependent.® § 266. Covenants may be void when considered with reference to the instrument in which they are contained, or the estate on 1 Ludlow V. McCrea, 1 Wend. 228 ; Catlin v. Barnard, 1 Aik. Vt. E. 9. 2 Ayler v. "Wilson, Comst.R. 319 ; Rowan v. Woodward, 2 Marsh. (Ky.) E. 140. '■> Tompkins v. Elliott, 5 Wend. E. 496; Jones v. Barkley, 2 Doug. 684; Gardi- ner V. Corson, 15 Mass. 504. * Couch V. Ingersoll, 2 Pick. E. 300; Carpenter u. Creswell, 4 Bing. 409; 1 Moore & Pa. 66. ^ Bone V. Eyre, 2 W. Bl. 1312, ^ Belts V. Perrine, 14 Wend. 219. ' Tileston v. Newell, 13 Mass. 406. 5 Parker v. Parmele, 20 Johns. E. 130; Dakin v. Williams, 11 Wend. 67. CH. VII.] OP COVENANTS. 171 Tvhicb. they depend. Thus, where a deed is void, all the cove- nants dependent on the interest professed to be conveyed by it, are also void.^ And a lessee professing to assign over a term •which in fact had no existence, is not liable, at the suit of a sub- sequent assignee on a covenant for quiet enjoyment.^ The same rule holds where a lease is void for uncertainty ; as where one possessed of a term for years, granted so much of the term as should be unexpired at the time of his death, and the grantee assigned, and covenanted with the assignee for quiet enjoyment ; it was held, that the uncertainty annulled the original lease, that the covenant could not subsist without an estate, and as no estate passed, the assignee could not maintain an action.^ § 267. A covenant to do any thing, which upon the face of it, appears to be prejudicial to the public interest, or otherwise con- trary to law, is void.* If a man covenants to do a thing which it is lawful for him to do, and a subsequent act of the legislature renders it unlawful, the act repeals the covenant ; or if he cove- nants nob to do a thing, and then a statute is made, which com- pels him to do it, the covenant is void. But if he covenants not to do a thing which is unlawful at the time, and afterwards, a statute makes it lawful, the covenant is not repealed.^ Or if he covenants to do a thing which is unlawful by statute, the cove- nant will not be made lawful, by a repeal of the statute, for the covenant was void ab initio.^ § 268. And although a covenant may not be absolutely void or illegal, it may yet be of so hard and oppressive ^ character, that a court of equity will refuse to enforce it. Thus a lease of mines, contained a covenant, that if the lessor should, at any time before expiration or termination of the lease, give notice in writing to 1 Soprani u. Skurro, Tely. 18. ' Noke ». Awder, Cro. Eliz. 373, 436. 8 Capenhurst y. Capenhurst, Eaym. 27; Waller v. Dean and Chap, of Norwich, Ow. 136; Waters v. Same, 2 Brown & Gol. 158; Wade v. Mervin, 11 Mass. E. 280; Phelps v. Decker, 10 Ibid. 267. * Low V. Peers, Burr. 2225. 6 Brick Presbyterian Church v. The Mayor, &c., of New York, 5 Cow. E. 538 ; BuUer'sN. P. 165. » Jaques v. Withy, 1 H. Bl. 65. 172 LAW OF LANDLORD AND TENANT. [CH. VII. the lessee, of Ms desire to take all, or any part of the machinery, stock in trade, or implements, in or about the mines, then the lessee would, at the expiration of the lease, deliver the articles specified in the notice to the lessor, on his paying the value of them, such value to be ascertained in the manner therein men- tioned ; it was held to be a covenant so injurious and oppressive to the lessee, that the court ought not to enforce it, or grant an injunction to prevent a breach of it.^ § 269. A covenantor cannot, by any act of his own, short of performance, discharge, or in any manner qualify his express covenant, without the concurrence of the covenantee.^ But any positive act of prevention by the covenantee, will release the cove- nantor ; as if a man covenants with another to collect his rents in such a town, and then interrupts him ; ^ or if a lessee for years covenants to drain the water out of the land ; or to build a house before such a day ; and the lessor enters before the day, and holds the lessee out.* The covenant, however, would not be dis- pensed with, if the covenantee merely forbids the covenantor to proceed with the draining or building.^ § 270. Where the act of one party is the cause, why the cove- nant cannot be performed by the other, performance by the latter is excused, and the thing contracted to be done by the former, may be enforced by suit, without averring performance ; and proof of such conduct, will support the averment of performance.^ The omission of the covenantee, to do some act necessary on his part to the execution of the covenant, may also be a ground for excus- ing the covenantor ; as if a man covenants to convey an estate to another for his life, and the lives of two such other persons as the covenantee should name, and to deliver quiet possession before the Christmas following ; the neglect of the covenantee to name the lives, is a sufficient excuse for the non-performance of the 1 Talbot V. Ford, 13 Simons, 173. 2 Stone V. Dennis, 3 Porter, E. 231 ; 1 Dev. & Bat. 402. 8 Shaw V. Hurd, 3 Bibb, 372 ; 5 Mass. 67. « Carrol ti. Read, Cro.Eliz. 374; S.C.Ow.65; S. C. Carith u. Reed, (Mo.) 412. 6 Barker v. Fletwel, Godb. 69 ; Porter v. Stewart. 2 Aik. 427. " Marshall v. Craig, 1 Bibb, 379 ; Couch v. IngersoU, 2 Pick. R. 292 : Harnham u. Eoss, 2Hall, R. 169. CH. VII.] OF CONDITIONS. 173 covenant by the other also.^ So where the -whole consideration fails, a stipulation becomes incapable of being substantially per- formed, in the manner intended by the parties, by the voluntary act of either, the other is not bound to proceed, but is at liberty to decline performance on his part.^ And if performance of another thing, or at another time, has been accepted in lieu of the thing, or the time stipulated, it is a sufficient excuse for the non- performance of the letter of the contract.^ The voluntary de- struction of one of the seals of a deed, where the covenants are joint, will discharge both covenantors ; but if the covenants are several, the breaking of one of the seals will invalidate the instru- ment so far only, as concerns him whose seal is taken off.* But where the seals are torn off by a stranger, or by one with whom the instrument was left for safe keeping, it does not vitiate the deed, and covenant may still be maintained on ifc.^ Section II. Of Conditions. § 271. A condition is a qualification annexed to an estate by the grantor, whereby the estate may be enlarged, defeated, or created, upon an uncertain event. Conditions, according to Lit- tleton, are either in law or in deed. A condition in deed, is that which is expressed in the deed by which it is created ; a condition in law, is that which arises by implication of law. This latter doctrine of estates upon condition in law, is said by Mr. Chancel- lor Kent to be of feudal extraction, and to result from the obliga- tions arising out of the -feudal relation. There was a tacit condi- tion annexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion. If he committed waste, or did any other act which in the eye of the law tended to defeat or devest the estate in reversion, the particular estate was forfeited. Even the rents and services of the feudatory were considered as conditions annexed to his fief; and for the non-payment or non- 1 Twyford v. Bantley, Freem. 121 ; Parker v. Parmele, 20 Johns. E. 130. ' Kleiae v. Catara, 2 Gallis. R. 74. 2 Warren v. Mains, 7 Johns. R. 476. « Matthewson v. Lydiate, Cro. Eliz. 408, 470, .546 ; S. C. 5 Co. 22, b ; 2 Eol. 30. 5 Kees V. Overbagh, 6 Cow. K, 746. And see ante, p. 15. 15* 174 LAW OF LANDLOKD AND TENANT. [CH. Til. performance of any of them, the lord might reenter, without a reservation to that effect in the deed creating the estate.'' A condition has strictly for its object, the defeating or avoiding an estate ; but where an estate is to be created or enlarged, it is technically upon a limitation. It is the province of a limitation, also, to mark the period or event for the commencement, and the time of duration of an estate for years, or life ; and, therefore, relates to the determinable qualities of an estate. § 272. Conditions in law are now called limitations, by which, upon the happening of a contingency, the estate becomes ipso facto terminated. As if an estate be made to A. for years, if I. S. so long live ; this is a limitation, by which the estate of A. is terminated immediately upon the death of I. S. Or if an estate be granted to a man and his wife, during coverture, they have an estate for life, liable to become extinct upon the dissolution of the coverture. And upon such limitation, the next subsequent estate becomes vested, immediately upon the determination of the first estate, and the remainder-man may thereupon enter.^ A condi- tion in deed, however, is only a proviso that the grantee shall or shall not do a particular act ; the breach of which will not, ipso facto, or without entry, defeat the estate, but will only give the grantor, his heirs, or assigns, a right to reenter, and by such entry avoid the estate. Partaking of the nature of the leases to which they are attached, a condition in a term of years may be created by parol ; while a condition annexed to a freehold lease can only be by deed.^ § 273. The principal difference between a condition and a limit- ation is, that a condition does not defeat the estate when broken, until entry by the grantor or his heirs. But a limitation marks the period which is to determine the estate, without entry or claim ; * and no act is necessary to vest the right in him who has the next expectant interest.^ Whether the particular form of words made use of amount to a condition, a limitation, or a cove- 1 4 Kent, Com, 121. ^ Co. Lit. 214-, b ; 10 Eep. 41 ; Shep. Touch. 117. •• Co. Lit. 214, b. * Stearns v. Godfrey, 16 Maine R. 160 ; 1 Prest. on Estates, 45 ; 10 Watts, 358. ''• Den V. Hance, 6 Halst. R. 244 ; 1 Prest. on Estates; 46. OH. VII.] OP CONDITIONS. 175 nant merely, is a matter of construction, depending on tlie con- tract. The intention of the party to the instrument, ivhen clearly ascertained, is always controlling ; though conditions and limit- ations are not to be raised by mere inference or argument. The distinctions on this subject are very subtle and artificial ; but the construction of a deed will, after all, depend less upon artificial rules, than upon the application of good sense and sound equity to the object and spirit of the contract, in each particular case.^ '5> 274. Some conditions are implied in the relation of landlord and tenant, as that a tenant shall not create a greater estate than he received .from the grantor ; for, according to the common law doctrine, if a tenant for life made a feoffment in fee, it produced a forfeiture of his estate.^ But this relic of feudalism has been abolished in most of the States, and would not now produce a for- feiture ; the grantee, in such case, taking the same and no other estate than the grantor himself had. § 275. Where the condition must be performed before the estate can commence, it is called a condition precedent; but where the effect of a condition is either to enlarge or defeat an estate already commenced, it is called a condition subsequent. The former avoids the estate, by not permitting it to vest until literally performed ; while the non-performance of the latter defeats the estate, by divesting the party of his title and the inte- rest already vested ; because its continuance is made to depend upon the performance of the act, or the happening of the stipu- lated contingency. Thus if an estate be limited to A., upon his marriage with B., the marriage is a precedent condition, and until that happens no estate vests in A. Or if a man make a lease of land to I. S. for ten years, provided that if he pays the'lessor a certain sum of money on a given day, he shall have the land to him and his heirs ; this is also a condition precedent, and must be fulfilled before the estate can take effect. But where a lease is made for years, on condition that the lessee shall pay a sum of money on such a day, or else his estate shall be void, this is a con- dition subsequent ; for here the estate is executed, but the con- 1 4 Kent, Com. 132. - Co. Lit. 233, b. 176 LAW OF LANDLORD AND TENANT. [CH. VIK tinuance of it depends upon the breach or performance of the condition.^ § 276. No precise words are required to make a stipulation a condition precedent or subsequent, neither does it depend on the circumstance whether the clause is placed prior or posterior in the deed, so that it operates as a proviso or covenant ; for the same words have been construed to operate as either the one or the other, according to the nature of the transaction, and the intention of the parties creating the estate.^ And where, in covenant on an indenture of lease for seven years, for non-payment of rent, the lease contained the usual covenants, to pay rent and repair, and a proviso that if the lessee, at the end of the first three or five years, should be desirous of quitting, and should give six months' notice thereof before the expiration of the three first years, then from and after the expiration of the first three years, and pay- ment of all rents, and performance of the covenants on the part of the lessee, the indenture should be void ; it was held that the payment of rent, and performance of the other covenants by the lessee, were conditions precedent to the lessee's determining the term at the end of the first three years, and that merely giving six months' notice, expiring with the first three years, was not sufficient for that purpose. Lord Kenyon, C. J., observing that it had frequently been said, and common sense seemed to justify it, that conditions were to be construed to be either precedent or subsequent, according to the fair intentions of the parties, to be collected from the Instrument ; and that technical words, if there were any to encounter such intention, (and there were none in this case,) should give way to that intention ; and that it was impossible to read this lease without seeing that the parties intended that the tenant should do every thing required of him, before he could put an end to the lease." A grant containing a 1 Wells V. Smith, 2 Ed. Ch. R. 78 ; Taylor v. Mason, 9 Wheat. 325 ; Shep. Touch. 17. " Hotham u. E. I. Company, I Term E. 645; Powers et al. v. Ware, 2 Pick. 451 ; Goodwill v. Lynn, Wash. C. C. R. 714 ; Tompkins v. Elliott, 5 Wend. 496 ; Gardiner v. Corson, 15 Mass. R. 500. 3" Porter v. Shepherd, B. R. E. 36 ; G. 3, affirming judgment of C. B., 6 Term E. 665. And see American cases to the same effect. Harding v. Kretsenger, 17 Johns. R. 293; 16 Ibid. 267; 10 Ibid. 266; Hopkins v. Young, 11 Mass. R. CH. VII.] 0¥ CONDITIONS. 177 stipulation, that the grantee shall allow all ^jeople to pass and repass, to fish, hunt, ^c, on the premises, has been held to be neither an exception nor a reservation, but a condition subsequent, upon the breach of which the title of the grantee might be divested.^ So a grant of land to a town, to use and improve for- ever, and not to be sold, but rented out, and the rents applied to the support of the minister in the town ; or a grant for the pur- pose of building a schoolhouse, for the use of a school, provided it he built on a certain site ; is, in either case, on a condition sub- sequent.^ § 277. Conditions precedent, which are to create an estate, receive a liberal construction to carry into effect the intention of the parties, and if the condition is performed as near the intent as possible, it will be sufficient ; but conditions which are to defeat estates must be construed strictly.^ From the nature of a condi- tion, it is obvious that equity cannot relieve from a forfeiture of an estate, arising upon a condition precedent unperformed. But it is different as to the breach of a condition subsequent, which would work a forfeiture or divest an estate ; for there a court of equity, acting upon the principle of compensation, will interpose, and prevent the forfeiture or divestment, provided it can be given with certainty in damages.* § 278. The words generally used to make a condition are, upon condition, or provided that; but the words made use of may import both a condition and a covenant. As if, in a lease for years, the words Yiere, provided always, and it is covenanted and agreed betiveen the parties, that the lessee shall not aliene, there is both a condition by force of the proviso, and a covenant by virtue of the other words.® So if a power of reentry, for the breach of 302 ; 15 Ibid. 500; Northrup v. Northrup, 6 Cow. 296 ; Dox v. Day, 3 Wend. E. .356; Lewis v. Weldon, 3 Eand. E. 71 ; Coun v. Lewis, 5 Littell, 66 ; Alexander V. Mann, 6 Monroe, 360 ; Bank of Columbia v. Hagner, 1 Peters, E. 464. 1 Parsons v. Miller, 15 Wend. E. 564. 2 Hayden v. Stoughton, 5 Pick. E. 528 ; Brigham v. Shattuck, 10 Pick. 309. ' Ld. Eaym. 335 ; Co. Lit. 220, a. * Walker v. Wheeler, 2 Conn. E. 299 ; Wells v. Smith, supra, Conn. E. 26 ; Scott V. Tyler, 2 Bro. C. C. 431 ; Duffield v. Elwes, 1 S. & S. 239 ; 4 Euss. E. 425. 5 Co. Lit. 203, b ; 8 Barn. & Cress. 308. 178 LAW OF LANDLORD AND TENANT. [CH. VII. a covenant, is added to such covenant, it has the force of a condi- tion.^ If it is doubtful whether the clause in question is a condi- tion or covenant, the court will incline to the latter construction ; for a covenant is preferable for a tenant. And where a man covenanted and agreed to let his. land to another for five years, provided always that the lessee should pay him annually, during the term, a certain sum of money, it was held to be a covenant for the payment of rent, as well as a condition.^ § 279. The word proviso always implies a condition, unless there are subsequent words which change it into a covenant, or a penalty is annexed for non-performance. But where the proviso is, that the lessee shall perform or not perform a thing, and no penalty is annexed, it is a condition ; upon annexing a penalty, ifc becomes a covenant.^ Mere words in restraint of a grant do not make a condition ; as if the lessor grants firewood, provided he do not take it of the great trees ; it may be waste, but no cause of reentry, if he does take it of the great trees. Nor will insensible words make a condition ; as a lease of forty years, upon condition if she lives so long and keeps herself such, without further expla- nation, for the intent is uncertain.* J, § 280. A lessor having the jus disponendi may annex whatever conditions he pleases to his grant, provided they are not illegal or inconsistent.® But they can only be annexed to an estate at the time of its creation, and may be by a separate deed, distinct from the one creating the estate, provided it is sealed and delivered at the time of executing the principal deed.^ If written on the back of a lease, before or at the time such lease is executed, it is valid.' Where the prompt performance of a condition is necessary, to give the grantee the whole benefit designed to be secured to him, or where immediate enjoyment constituted the motive for the con- 1 Jackson v. McClellan, 8 Cow. R. 395. 2 Livingston v. Stickles, 8 Paige, R. 403 ; 7 N. Hamp. R. 142. 3 Jackson v. Allen, 3 Cow. R. 221 ; Gray v. Blanchard, 8 Pick. R. 284 ; Simp- son V. Tittwell, Cro. Eliz. 242. * Com. Dig. Condition, (A.) 6; 3 Leon. 16 ; Cro. Eliz. 414. 5 Lord Cromwell's Case, 2 Rep. 71 ; Roe v. Galllers, 2 Term R. 133. 8 Griffin v. Stanhope, Cro. Jao. 456 ; 4 M. & S. 30. ' Ibid.; 2 Saund. R. 48; Shep. Touch. 126. CH. VII.] OF CONDITIONS. 179 tract, the grantee forfeits the estate unless he performs the condi- tion in a reasonable tipae.^ But if no time is limited for the per- formance of the condition, the grantee has, in general, his whole lifetime for performance.^ And if a precedent act is to be per- formed at a certain time or place, and a strict performance is pre- vented by the absence of the ^party who has the right to claim it, the law will not permit him to set up the non-performance of the condition as a bar to the responsibility which his part of the con- tract had imposed on him.^ <5> 281. If a condition is impossible at the time of its creation, or becomes so afterwards by the act of God, or the law, or of the grantor himself; or is contrary to law, or repugnant to the nature of the estate granted ; it is void, and the estate is abso- lutely vested in the grantee.* If a condition is in the disjunctive, giving the obligor liberty to do one thing or another, at his elec- tion, and one part becomes impossible by the default of the other party, he is not bound to perform the other parts. As if it be to make assurance to A. as he shall devise ; or, upon default, to pay five hundred pounds ; if A. does not tender an assurance he need not pay the money. The same principle applies, where one part becomes impossible by the act of God. But if one alternative was impossible at the time of making, the obligor is still bound to per- form the other. ^ Where a lease was made to A. B., with a pro- viso that if C. should demand any profits of the land, or enter into the same during the lifetime of A. or B., (who were his father and mother,) that then the estate limited to C. should cease, and be utterly void ; it was resolved that this was a void condition, for as much as it was repugnant to the estate limited.^ § 282. A mere personal disability will not be allowed to excuse ' Hamilton v. Elliott, 5 S. & E. 384. 2 Per Marshall, C. J., 3 Peters, E. 376. 3 Williams v. Bank ofTJnited States, 2 Peters, 102. * People V. Manning, 8 Cow. E. 299 j McLachlau v. McLachlan, 8 Paige, 535 ; Holland v. Bouldin, 4 Mason, (Ky.) E. 147 ; Co. Lit. 206, a ; 8 Term E. 60 ; Sco- vel V. Cabel, Cro. Eliz. 107 ; 6 Peters, E. 691 ; 10 Pick. E. 507. 5 Com. Dig. Condition, (K.) 2 : Taylor v. BuUen, 6 Cow. E. 627. « 2 Leonard, E. 132. 180 LAW OP LANDLORD AND TENANT. [CH. VII. the non-performance of a condition ; and, therefore, where an estate is granted to an infant or feme covert, on condition, they are bound to strict performance ; and, if broken during the minor- ity of the infant, the land is lost forever .^ If it be a condition precedent, which is impossible, the grant is absolutely void, and the estate can never arise.^ But as to a condition subsequent, which is never favored in law, its validity will depend upon its being such as the law will allow to divest the estate. And it is to be observed, that a court of equity will never lend its aid for the purpose of divesting an estate, for the breach of a condition subsequent ; because it tends to destroy estates which it is the policy of the law to uphold. The relief which that court affords, being confined to cases where the forfeiture has been the effect of inevitable accident, and the injury produced capable of compen- sation in a pecuniary point of view.^ § 283. A condition must not be repugnant to the nature of the estate, or to the language of the grant; or against the policy of the law, as an unwarrantable restraint upon trade, or marriage, or the power of alienation. Neither must it be a stipulation for that which is immoral. Conditions of this class, are either to do something that is malum in se or malum prohibitum, or to omit the doing of something that is a duty ; or else to encourage such crimes and omissions. Such conditions the law will always, and without any regard to circumstances, defeat ; being concerned to remove all temptations and inducements to crime.* § 284. A condition, upon a feoffment in fee, not to aliene, is void for repugnancy ; but a grantee may be restrained from assigning for a particular time, or to a particular person ; and a condition that the grant shall become void, if the grantee becomes a bankrupt, has been held valid.'' Although Mr. Chancellor Kent now questions whether a restraint of alienation to a particular person, who is named, would be a valid condition at the present ' Williams v. Fry, 2 Ley. E. 21 ; Cro. Jac. 374 ; 8 Co. E. 44G. ^ Taylor v. Mason, supra; Arnold v. United States, 9 Cranch, 104 ; 12 Ves. R. 504 ; Mookley v. Riggs, 19 Johns. R. 69. 3 PiiUen V. Brady, 2 Atk. R. 587. » 1 P. Wms. R. 189. 5 Doe dem. Mitchonson r. Carter, S Term E, 60 ; Co. Lit. 223, a ; 10 E. 38, b. CH. VII.] OP CONDITIONS. 181 day. The courts, however, look -with great jealousy upon all restraints on the free exercise of the inherent right of alienation, belonging to estates in fee. For this reason, a devise of lands to the testator's children, in case they continued to inhabit the town of Shirley, otherwise not, -was in New York considered to be unreasonable, and repugnant to the nature of the estate.^ So, where a lease in purpetuity, contained a condition and covenant, that upon every sale of the premises, the lessee or assigns should obtain the consent in writing of the lessor, and offer him. the pre- emptive right to purchase, and if after such offer, the premises were sold to any other person, one tenth of the purchase-money should be paid to the lessor ; and the lessee made a contract to Bell, and agree to pay the tenth of the sale to the owner of the rent and reversion, the purchaser actually taking possession under his contract ; Mr. Chancellor Walworth held such covenant and condition to be, a restraint in the nature of a fine upon alienation, inconsistent with the spirit of our institutions, and injurious to the community ; and that a court of chancery would not interfere, to enforce the performance of such covenants and conditions, in cases where the landlord, by the terms of his lease, had not secured to himself a remedy by law.^ § 285. But in another case, which arose in the Supreme Court of the same State, a similar covenant in a lease, to a man. his heirs and assigns forever, paying a certain rent, and that in case the lessee did not perform all the conditions, the estate should cease, and the lease become void, was held to be a lawful and valid condition ; that the nature of the estate created by such lease, was a fee-simple conditional, or a fee-simple subject to be defeated upon a condition subsequent ; by the failure or non-per- formance of which an estate already vested might be defeated. It was also said, that if the condition had been general not to alien, it would have been necessarily repugnant, and, therefore, void ; but that being a grant, coupled with the condition, that if the tenth of the proceeds of sale was not paid to the lessor, the estate should be defeated, the lease would be forfeited upon a breach of such condition, and the lessor might re-enter.^ 1 Newkirk v. Newkirk, 2 Caines, R. 345. 2 Livingston v. Stickles, 8 Paige, E. 403. 8 Jackson dem. Lewis v. Schutz, 18 Johns. R. 174. 16 182 LAW OF LANDLORD AND TENANT. [CH. VH. § 286. If the condition is, that the lessee -will not do any par- ticular act without leave from his lessor, when leave is once granted, the condition is gone forever ; for a condition is to be taken strictly, and by the license it is satisfied.^ If the license dispenses with but part of the condition, it is a dispensation of the whole ; as where a lease was made to three, on condition that they, nor any of them, should alien without license of the lessor, and one by license aliened his part, the condition was held to be entirely dispensed with, and the other two might alien without further license. And where a lease contained a clause, that the lessee should not assign without leave from his lessor, the lessor under a license to assign part of the premises, may assign the whole without incurring a forfeiture. But the license must be such as is required by the lease ; and, therefore, where the lease required the license to be in writing, a parol license was held to be insuiBcient.2 § 287. The forfeiture of a lease by breach of covenant or con- dition, may be waived in like manner as a forfeiture for non-pay- ment of rent, or a notice to quit ; for if the landlord do any act, with knowledge of the breach, which can be considered as an acknowledgment of a tenancy still subsisting, he waives the for- feiture ; as, if he receives rent accruing subsequently to the forfeiture, unaccompanied by circumstances which show a con- trary intention.^ But it is not waived by parol assent, or a mere silent acquiescence ; * nor by any oflFer to accept payment if made immediately.^ § 288. In general, where an estate is defeasible, on the non- performance of a condition subsequent, it is not absolutely defeated upon the happening of the contingency on which it is defeasible ; the estate will continue afterwards, unless the grantor or his heirs, take advantage of the breach of condition, by an actual entry, 1 Dakin v. Williams, 17 Wend. 447 ; Damper's Case, Cro. Eliz. 815 ; S. C. 4 Co. 119, b; 13 Wend. E. 530. 2 Koe V. Harrison, 2 Term E. 425 ; Seers v. Hind, 1 Ves. Jr. 294. 3 Jackson v. Sheldon, 5 Cow. 448 ; Fox c. Swann, Styles, 482 ; Goodrighl c Davis, Cow. 808. * Gray v. Blanchard, 8 Pick. 292 ; 1 Johns. Ca. 125. 6 Hutcheson v. McNatt, 1 Ham. E. 21. CH. VII.] OP CONDITIONS. 183 which is generally necessary to revest an estate of freehold.^ although a different rule formerly prevailed with regard to a term of years, where the grantor was not bound to re-enter, since h^ had never devested himself of his estate in the lands.^ And for this reason, a distinction existed between leases for life, and those for a term of years ; in the latter case, it was said, that on a breach of the condition, the lease absolutely determined, and could not be set up again by the acceptance of rent, or any other act .on the part of the lessor.^ But this doctrine is no longer recognized, and it is now held, in relation to leases for years as well as those for life, that the happening of the cause of forfeiture only renders the lease void as to the lessee. It may be afiSrmed by the lessor ; and then the rights and obligations of both parties will continue without regard to the forfeiture. If, therefore, the lessor, after notice of forfeiture, does any act which amounts to a dispensation of the forfeiture, the lease which was before voidable, is thereby affirmed.* § 289. The substantial performance of a condition is sufficient ; and its non-performance may be excused, when occasioned by the act of Grod, the law, or the party. In general, if a condition be- comes impossible by the act of God, the obligation is discharged. As where the obUgee in a condition subsequent died ; or a man covenanted to built a house before such a day, and afterwards the plague came there before that day, and continued there until after the day, the condition was held to be dispensed with.^ So where the law forbids the act conditioned to be performed, it is excused.^ The same result follows, where the party accepts another thing in satisfaction, or is himself in default ; as where the condition is the payment of a sum of money, and the payee is 1 Canal Co. v. Railroad Co. 4 GiU & Johns. 121 ; "Willard v. Henry, 2 N. H. R. 120; Chalker v. Chalker, 1 Conn. E. 79. 2 Lincoln Bank v. Drummond, 5 Mass. R. 321. 8 Kimersly v. Orp, 18 Johns. E. 183; Goodright v. Davids, Cowp. 804 ; Coon v. Brickett, 2 N. H. R. 163; Doe v. Bancks, 4 B. & A, 401; Browning v. Beston, Plow. 135. * Clark V. Jones, 1 Denio, R. 516 ; Amsley v. "Woodward, 6 B. & C 519 ; 4 B. & A. 401 ; 2 Chit. E. 247. 5 Merrill v. Emery, 10 Pick. E. 507; 1 Eol. Abr. 450. » Holland v. Bouldin, 4 Munf. E. 150. 184 LAW OF LANDLORD AND TENANT. [CH. VII. himself out of the commonwealth ; ^ or the obligation is to build or repair a house, and the obligee disturbs or forbids the perform- ance. But where the lessee covenanted to drain the water upon the land before such a day, and after the lessor entered before the day, and continued there until the day was past, it was held to be no excuse, unless the lessor disturbed him in his opera- tions .^ § 290. In every well-drawn lease, it is the invariable practice to insert a clause of re-entry for a breach of its covenants or con- ditions. This practice is said to have grown out of an ancient process for the recovery of rent, by writ of cessavit, which in fact amiounted to a distress of the whole of the tenants land, by seizing and holding it, until he paid the arrearage of rent. For, by the feudal law, after the lord had granted out his lands, he still had the right of seignory, as well as the right to all the other services reserved upon the grant ; and in case of a failure in any of them, he might enter upon and take possession of the feud. This pro- ceeding, however, was taken away by the statute of 52 Hen. Ill, which prohibited a distress of the freehold, except by the King's Writ, and so left the tenant's chattels, as the only subject for the lord's distress. After which, and as a convenient substitute there- for, the practice was introduced, of inserting a power of re-entry, for the non-payment of rent, on granting a lease, which gradually extended itself to other covenants and causes of forfeiture besides the non-payment of rent.^ § 291. This clause enables the lessor, his heirs, or assigns, in case of a breach of condition or covenant, to re-enter upon the demised premises and eject the tenant, leaving both parties in the same situation as if the lease had never been granted.* The grantor and his heirs, however, may still enter and take advan- tage of a breach of condition, or other common law forfeiture, by 1 Williams v. Bank U. S. 2 Peters, R. 102 ; 6 Ibid. 745 ; Bradstreet v. Clark, 21 Pick. 389. 2 Carel v. Read, Cro. Eliz. 374; S. C. Moore, 402; Jacksoa v. Crafta, 18 Johns. E. 110. ^ Hargrave's Note to Co. Lit. 142, a. * Johns V. Whitley, 3 Wils. R. 127 ; Doe v. Philips, 2 Bingh. U. 13. CH. Tir.] OP CONDITIONS. 185 ejectment, without this clause.i But in case of a breach of cove- nant, in the absence of a proviso for re-entry, the lessor would possess no such power ; the mere breach of a covenant, enabling him to sue for damages only.2 Any mere covenant without this clause, would afford but an indifferent security to the landlord, from the difficulty of ascertaining the actual extent of damage done, by a breach of many of the covenants ; or the inability of a tenant to pay the pecuniary recompense therefor, after it shall have been recovered in a suit at law. § 292. The principle applies also to the case of a tenant, hold- ing under a mere agreement for a lease, which specifies the cove- nants to be inserted in the lease, and that there shall be a power of re-entry for a breach of them.^ But the proviso, operates only during the term, and cannot be taken advantage of after its expi- ration. Thus where a lease of ninety-nine years if A. and B. should so long live, was granted with a proviso for re-entry, in case the lessee should underlet the premises for the purposes of tillage, and an under-tenant of the lessee ploughed up and sowed the land, but the lessor did not enter during the continuance of the estate ; it was held, in an action of trespass by the lessor against the under-tenant, for entering upon the land after the determination of the estate, for the purpose of carrying away the emblements, that the plaintiff, having never been in possession by right of re-entry, for condition broken, could have no advantage thereof, and that the defendant who ploughed and sowed the land, was entitled to take the emblements.* § 293. A power of re-entry, like a condition, can only be reserved to the lessor and his heirs, and not to a stranger, even by express words ; as where a lease was made by a trustee, reserving aeright of re-entry upon a breach of covenant, to the cestui que trust ; forasmuch as the legal estate was in the trustee, 1 Wigg V. Wigg, 1 Atk. E. 383 ; Doe v. "Watt, 1 Man. & Ry. 694. ' Pells V. Brown, 2 Cro. 591; 11 Mod. 61; 1 Atk. R. 383 ; 2 Bl. Com. 155; Brown v. Bate, 2 Overt. R. 233. 3 Doe dem. Oldershaw v. Breach, 6 Esp. R. 106 ; Coe v. Watt, 8 B. & C 208 ; Doe dem. Kaine v. Kneller, 4 C. & P. 3. * Johns V. Whitley, 3 WUs. 16 R. 127. 16* 186 LAW OF LANDLORD AND TENANT. [CH. VIl. the reservation was held to be void.^ And a power to a particu- lar person, to enter, will not extend to his executor, unless so mentioned.^ A residuary devisee, however, may take advantage of such a condition, annexed to a specific devise, if the devisor do not otherwise limit over the contingent interest in the estate thus specifically devised.^ And so, no doubt, may an assignee of the reversion, by force of the statute. But as a general rule, when no words of limitation are mentioned, the law will reserve the benefit of the condition to the heirs of the lessor.* § 294. To enable a reversioner to avail himself of a forfeiture, it is necessary he should have the same estate in the lands at the time of the breach that existed when the condition was created ; for an extinguishment of the estate in reversion, in respect of which the condition was made, will extinguish the condition also.^ As where a lease was made for a hundred years, and the lessee made an under-lease for twenty years, rendering rent, with a clause of re-entry, and afterwards the original lessor granted the reversion in fee, and the grantee purchased the reversion of the term, it was held that the grantee should not have either the rent or the power of re-entry ; for the reversion of the term to whicli they were incident was extinguished in the reversion in fee.^ It is not, however, necessary, that the party claiming should have an actual reversion, remaining in the land after the grant ; for if a lessee for years assign His whole term to another upon condition, he may still re-enter for breach of the condition, though he has parted with his whole term.'^ Yet a third person cannot enter, unless he come in under the lessor ; therefore, if a lessee for twenty years make a lease for ten on condition, and then surren- 1 King's Chapel v. Pelham, 9 Mass. 501 ; Doe dem. Barber v. Lawrence, 4 Taunt. R. 23; Jackson v. Topping, 1 "Wend. K. 388. 2 Hassel v. Gowlthwaite, Wils. 500; 1 Mars. 359. 8 Hayden v. Stoughton, 5 Pick. 528 ; 10 Ibid. 306, 463. * Co. Lit. 214 a; 3 Atk. E. 134. 6 Dumpor's Case, 4 Co. 120 ; Fen dem. Mathews v. Smart, 12 East, 444. Upon a breach of the condition for the payment of rent, the lease is not absolutely void, bnt voidable only ; the estate is not determined until the lessor actually re-enters ; for it is an established rule, that when an estate commences by livery, it cannot be determined before entry. Garrett v. Scouten, 3 Denio, 336. ^ Thier v. Barton, Moore, 94 ; Webb v. Russell, 3 Term R. 393. ' Doe dem. Freeman u. Bateman, 2 B. & A. 168. CH. VII.] OP CONDITIONS. 187 der to him in reversion, the reversioner, being in of a paramount estate, cannot take advantage of the condition.^ <5> 295. At common law, an assignee or grantee of a reversion could not enter for a condition broken ; for, to prevent mainte- nance, an assignment of a mere right of entry was not allowed. But if the estate ceased by breach of condition without entry, aa where, in a lease for years, the lease was to become void by breach of the condition, the assignee of the reversion might take advan- tage of it.2 The statute 32 Hen. VIII. c. 3, 4, first provided that assignees or grantees of a reversion should be entitled to all such advantages as the lessors or grantors themselves had, by entry for non-payment of rent, or other forfeiture. This statute has been generally reenacted in the United States. The Eevised Statutes of New York enact, — " The grantees of any demised lands, tenements, rents, or other hereditaments, or of the rever- sion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee, or assignee, shall have the same remedies by entri/, action, distress, or otherwise, for the non-performance of any agreement contained in the lease so assigned, &c., as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor. And the provisions of this section extend as well to grants or leases in fee reserving rent, as to leases for life and for years." ^ This latter clause seems only declaratory of the old law, for under the English statute it was held, that not only an assignee of the reversion in fee, but also for life or years, shall take advantage of a condition of re-entry.* § 296. It is to be observed, however, that an assignee of part of the reversion is not within the statute ; as if a lease be made of three acres of land upon condition of re-entry, the assignee of the reversion of two acres shall not enter for a breach of the condi- tion ; for the condition being entire, cannot be apportioned by the act of the parties, but shall be destroyed.^ Yet although the 1 Chaworth v. Phillips, Moore, 876. 2 Co. Lit. 214, b ; 3 Kep. 65, a. " K. S. 747, I 23, 25. * Co. Lit. 215, a ; Verplanck v. Wright, 23 Wend. E. 506. 5 Co. Lit. 215, a; Dumpor's Case, 5 Kep. 55, b; Cro. Eliz. 833 ; 4 Leon. 27. 188 LAW OP LANDLORD AND TENANT. [OH. VH. assignee of tlie reversion of part of the land cannot enter for a condition broken, lie may maintain an action of covenant by virtue of the statute.^ And it may also be observed that, in all these cases, it is in the option of the lessor alone whether he will avail himself of his right of re-entry or not ; even although, by the terms of the proviso, the term is to cease or become void upon the non- performance of the covenants, for the lessee can in no case elect that it shall cease. ^ § 297. Where a landlord has a right of re-entry for non-payment of rent under the statute, a demand of rent, either upon or after the last day which the lessee has to pay, is still essential to com- plete the forfeiture, and enable him to maintain an action ; for it is not until demand and non-payment that this condition is broken.^ There may, however, by the special agreement of par- ties, be a re-entry for default in payment of rent, without demand of it.* In such case, the mere failure to pay with or without demand constitutes the breach, and a subsequent entry at any time is good.^ , So if the tenant disclaims holding under the land- lord, or refuses to pay rent on that ground, the lessor is entitled to re-enter without any previous demand of rent.^ An actual demand is, in general, necessary to complete the forfeiture, whe- ther the proviso gives the right of re-entry, in case the rent be behind' for a certain period of time after the day whereon it falls due, or the lease is declared to be absolutely void in case of its non-payment.^ Accordingly, where the condition was, that if the rent were suffered to be due and unpaid, the indenture, and the estate thereby created, should he void, it was held that the grantor should not be entitled to recover as for condition broken, without showing a formal demand of the precise sum due, a convenient 1 Twynam v. Peckard, 2 B. & A. 105. 2 Arnsby v. "Woodward, 6 B. & C. 519 ; 6 M. & S. 121 ; 4 B. & A. 401 ; Clark V. Jones, supra. ^ Doe dem. Forester v. Wandlass, 7 Term R. 117. "We have elsewhere seen the strict requisites of the demand, when the landlord proceeds to enforce a for- feiture under the common law, and Independent of the statute. * Dormer's Case, 5 Coke, R. 41. ' Goodright v. Cator, 2 Dougl. 477 ; Doe v. Masters, 2 B. & Cress. 490. " Jackson u. Collins, 11 Johns. R. 1 ; Trustees, &c. v. Williams, 9 Wend. R. 147. ' Co. Lit. 202, a; Clem's Case, 10 Coke, 129; Doe v. "Wandlass, 7 Term R. 120. CH. VII.] OB CONDITIONS. 189 time before sundown of the day, at whicli the rent became paya- ble by the reservation.^ "§, 298. The modem decisions hold It unnecessary that the landlord, proceeding for condition broken, should make an actual entry, in order to take advantage of a breach of condition ; on the ground that the constructive entry, implied by an action of ejectment, is sufficient for the purpose, even where the estate to be avoided is one of freehold.^ But the necessity of proving a strict common law demand, both as to time and place, still remains, wherever a forfeiture for non-payment of rent is to be established, unless when dispensed with by agreement of the par- ties, or by statute.^ Thus, for instance, where under a proviso for re-entry, in case of the non-payment of rent for twenty-one days, it appeared that the rent was payable quarterly, and that a demand of more than one quarter's rent was made on the twenty-first day, at one o'clock ; it was held that only one quar- ter's rent should have been demanded, and that at sunset, if the lessor insisted upon the forfeiture.* Under a proviso for re-entry, if no sufficient distress is upon the premises at the expiration of fourteen days from the rent-day, the landlord is prima facie enti- tled to recover, by proof of there being no distress on some day after the fourteen, though that day be subsequent to the demise in the ejectment ; ^ and this clause must be strictly pursued, for every part of the premises must be searched, in order to ascer- tain that no sufficient distress can be found thereon.^ But a les- sor can in no case bring an ejectment upon the clause of re-entry, after distraining for rent in arrear, this being considered a waiver of the forfeiture.^ § 299. The Revised Statutes of New York dispensed with all 1 Jackson v. Kipp, 3 Wend. R. 231. 2 Doe V. Masters; Goodright v. Cator, 2 Ld. Eay. 750; Bear v. Wliistler, 7 Watts, 149 ; Jackson u. Cryster, 1 Johns. Cas. 126 ; Doe v. Alexander, 2 M. & S. 525 ; Garrett v. Scouten, 3 Denio, 337. 8 McCormick v. Connell, 6 Serg. & Rawle, l5l ; Van Rensselaer *. Jewett, 2 Comst. R. 147. * Doe dem. Wheeldon v. Paul, 3 C. & P. 613. 6 Doe V. Tuchan, 15 East, 286. " Eees V. King, Forrest, 19. ' Norton v. Skeldon, 5 Cow. E. 448. 190 LAW OF LANDLORD AND TENANT. [CH. Til. the formalities of a common law demand, and provide that, in case of the non-payment of rent, and no sufficient distress is to be found upon the premises, an action of ejectment may be brought as a substitute for the formal demand and re-entry at common law. This provision of the statute is taken from that of 4 Geo. II. c. 28, and has been followed in many of the States. It pro- vides, " Wherever any half years' rent, or more, shall be in arrear from any tenant to his landlord, and no sufficient distress can be found on the premises to satisfy the rent due, if the landlord has a subsisting right by law to re-enter for the non-payment of such rent, he may bring an action of ejectment for the recovery of the possession of the demised premises ; and the service of the decla- ration therein shall be deemed and stand instead of a demand of the rent in arrear, and of a re-entry on the demised premises." ^ "5i 300. This statute does not extend to cases where the lease contains no clause of re-entry ; ^ nor where there is a sufficient distress upon the premises ; and, consequently, in such cases the lessor must proceed as before the statute.^ The distress, how- ever, must be such that the landlord could have availed himself of it ; and, therefore, where the tenant locked up the premises, so that his goods, supposing there was sufficient there, could not be distrained without rendering the landlord a trespasser. Lord Tenterden held that proof of this was sufficient to satisfy the statute ; which meant no sufficient distress upon the premises which could be got at.* When proceeding under that statute, also, he was bound to show a compliance with all the requirements of the common law, before he could avail himself of a condition of re-entry.^ And under the English statute it has also been held, that this provision has not done away with the necessity of a demand of rent, if the lease requires it, although such demand need not be made with all the particularity required at common law.® 1 2 R. S. 505, § 30. ^ Jackson dem. Van Rensselaer v. Hogaboom, 11 Johns. R. 163. s Doe V. Wandlass, 7 Term R. 117 ; Doe v. Roe, 9 Dowl. 548. * Doe V. Dyson, Mood. & M. 77. 5 Jackson v. Kipp, 3 Wend. R. 230 ; Jackson v. Wycoff, 5 Wend. R. 53 ; Coon V. Brocket, 2 N. Hamp. R. 163 ; Hamilton t. Elliott, 5 S. & R. 375 ; Gray u.Blan- chard, 8 Pick. R. 284. 6 Doug. R. 486 ; 5 D. & R. 711 ; 3 B. & C. 752. CH. VII.] OF CONDITIONS. 191 § 301. A recent statute of New York, however, abolishing dis- tress for rent, now authorizes a re-entry for non-payment of rent, whether there are sufficient goods on the premises or not, in all cases where the right of re-entry has been reserved in the lease. It provides, whenever the right of re-entry is reserved and given to a grantor or lessor, in any grant or lease, in default of a suffi- ciency of goods and chattels whereon to distrain, for the satisfac- tion of any rent due, such re-entry may be made at any time after default in the payment of such rent ; provided fifteen days' pre- vious notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, his heirs, executors, administrators, or assigns, notwith- standing there may be a sufficiency of goods and chattels on the lands granted or demised, for the satisfaction thereof. And the notice may be served personally on such grantee or lessee, or by leaving it at his dwelling-house on the premises.^ This statute provides an additional mode of re-entry, by substituting a fifteen days' notice of the landlord's intention to re-enter, in lieu of show- ing that there was no sufficient distress on the premises. It applies the remedy of ejectment, to a class of cases, to which it did not apply before, authorizing the re-entry of the landlord upon premises where there is a sufficient distress, provided a notice of such intention, in writing, is served on the tenant fifteen days before the suit is commenced. This new remedy is not incompa- tible with the former one, which required the landlord to prove the absence of a sufficient distress; both remedies may subsist together, and the landlord be left to elect between them.^ § 302. The clause of re-entry for non-payment of rent operates only as a security for rent ; for, at any time before judgment is entered in the cause, the tenant may either tender to the land- lord, or bring into the court where the suit shall be pending, all the rent in arrear at the time of such payment, and all costs and charges incurred by the landlord ; and, in such case, all further proceedings in the cause shall cease. And even in case the land- lord recovers possession of the premises, the tenant may, at any time within six months after judgment and execution thereon, I Lawsof 1846, u. 369. " Williams v. Potter, 2 Barb. R. 316. 192 LAW OF LANDLORD AND TENANT. [CH. VU. make such payment or tender to the landlord, and become thereby entitled to a restoration of the premises, according to the terms of the original lease. If the landlord, during the six months, shall have been in possession of the premises, the court may direct that 60 much and no more as he shall have made of the premises dur- ing his possession thereof, or as he might, Trithout wilful neglect, have made of the same, be deducted from the amount of rent in arrear, with the costs of the ejectment ; and the tenant will be required to pay only the balance before he shall be restored to the premises.^ § 803. A mortgagee of such lease, who is not in possession, who shall within the said six months pay the rent in arrear, with costs, and perform the agreements which ought to be per- formed by the first lessee, will not be affected by such recovery in ejectment. And a lessee, or any person claiming any interest in such lease, may also within that time file a bill in equity for relief; and, if such relief be granted, he will be let in upon the terms of the original demise.^ But in order to relieve the land- lord from the inconvenience of continuing always liable to an uncertainty of possession, from its remaining in the power of the tenant to offer him a compensation at any time, in order to found an application for relief in equity, the next section of the statute bars the tenant from claiming relief after six months shall have elapsed from such judgment and execution. AVhen a landlord enters for a condition broken, he avoids all charges and incum- brances put upon the land by the tenant after the condition made : for he is then seized as of his first estate, and must have it in the same plight it was when he parted with it.^ 1 2R. S. 505, § 31-33. 2 Ibid. § 31 - 39 ; Doo dcin. "Whitfield v. Roe, 3 Taunt. K. 402. ^ Shep. Touch. 121. CH. VIII.] COVENANTS ON THE PART OF THE LESSOR. 193 CHAPTER VIII. COVENANTS ON THE PART OF THE LESSOR. Section I. The Covenant for Quiet Enjoyment. § 304. The principal covenant on the part of a landlord is, that the tenant shall have the quiet enjoyment and possession of the pre- mises during the continuance of the term. The law supposes that when a man makes a lease, he has a good title to the land, and, consequently, power to lease it ; and there is, therefore, an under- taking implied on the part of every lessor as a condition of his receiving rent, that the lessee shall quietly enjoy the possession of the demised land.^ But this is the only covenant which is implied on the part of a lessor j^ and it is, therefore, usual to insert in the lease, an express covenant, for the lessee's quiet enjoyment, and to save him harmless from all persons claiming title, upon his performance of those stipulations which are obligatory upon him. In New York, indeed, it is necessary for the protection of a ten- ant, to do so, in every case ; for, by the Revised Statutes of that State, as we have seen, there can be no implied covenant in a deed of any description ; unless, therefore, he secures himself by an express covenant to this effect, he can have no remedy for an eviction.^ § 305. Any interference with the possession of the lessee, by the lessor, amounts to a breach of the covenant, in whatever form 1 Deering w. Farriiigtpn, 1 Mod. U3; Hatchet ». Glorer, 10 Mod. 142; Holder V. Taylor, Hob. 12 ; Ludwell v. Newman, 6 Term R. 458. Upon the words grant or demise, a lessee may, at common law, maintain an action of covenant against the lessor, for not having sufficient power to demise for the whole term ; so, upon the word assign, in an assignment of a lease, for it is as general a word of covenant as demise. Grannis v. Clark, 8 Cow. E. 86 ; Wells v. Mason, 4 Scam. (111.) E. 85. 2 Per Parke, B. in 12 Mees. & Wels. 85 ; Nokes's Case, 4 Co. 80, b. 3 Kinney v. Watts, 14 Wend. E. 381. 17 194 LAW OF LANDLORD AND TENANT. [CH. VHI. it may happen ; but if the lessor merely covenants against the acts of a particular person, a molestation by that person only, can be the ground of a breach of the covenant.^ If it is contained in a lease for life, the lessor is bound, under the general covenant, to make it good against all men ; but if it be a lease for years, then only as against all persons claiming through himself, or those from whom he claims title. But if a tenant for years is ousted by one ■who has no title, in the language of the law, by a stranger, it is a trespass, and the law leaves him to his remedy against the wrong- doer, as it arises from no fault of the landlord.^ § 306. The covenant extends not only to the title of the cove- nantor, but also to his capacity to grant the estate. Therefore, where upon a grant by a man and his wife, the husband cove- nanted that they had good right to convey the lands, and the wife wa,s under age at the time, it was held, to amount to a breach of this'covenant.^ So where the breach assigned was, that the plain- tiff was evicted in consequence of a judgment in ejectment, by one Yates, having lawful title to the premises ; it was held a good objection on demurrer, that it did not appear that Yates's title commenced by any act of the defendant's, or prior to the assign- ment made by them to the plaintiff, who might, therefore, have been evicted by means of some act done by himself, since the assignment.* The intendment, that the title of the party evicting was derived from the plaintiff, may be precluded by averring that the person evicting, entered by lawful title, which accrued to him before the date of the conveyance to the plaintiff,^ or that the party evicting entered by virtue of a title theretofore made by, from, and under the defendant.^ ■'J § 307. A covenant for quiet enjoyment against " any interrup- tion of, from, or hy the grantor or Ms heirs, or any person whom- 1 Gardner v. Ketletas, 3 Hill, (N. Y.) R. 330 ; Howell v. Eichards, 11 East, 642. 2 Iggulden V. May, 9 Ves. 330; Dudley v. FoUiatt, 3 Term K. 584 ; Andrew's Case, Cro. Eliz. 214 ; Greenby v. Wilcoeks, 2 Johns. K. 1 ; Ellis v. Welch, 6 Mass. E. 246. 3 Nash V. Ashton, Sir T. Jones, 195 ; Sugd. Law of Vend. 415. * Noble V. King, 1 H. Bl. 34. -'' Buckley v. Williams, 3 Lev. 325. ^ Hodgson V. India Company, 6 Term E. 278. CH. VIII.] COVENANT FOR QUIET ENJOYMENT. 195 soever, legally or equitably claiming, or to claim, any estate, &c., in the premises, by, from, under, or in trust for him or them, or by, through, or with his or their acts, means, default, privity, or consent," was adjudged to extend to an arrear of quit-rent, due at the time of the conveyance, although it was not shown that the rent accrued during the time the grantor held the estate.^ The lessor's indemnity usually extends to the acts of himself and Ms heirs, and all others claiming under him ; but as to the persons who are construed to come within the meaning of the phrase, all per- sons claiming under him, it has been decided, that a person taking under an execution of a power of appointment, is within a cove- nant for quiet enjoyment without any let, suit, &c. , of the appointor, his heirs or assigns, or any person or persons claiming, or to claim, by, from, or under him ; although the estate proceeded from the wife of the appointor, and he and she both joined in exercising the power.^ This covenant runs with the land, and is, therefore, binding on the assignees of the reversion ; and may be made available by the assignees of the term.^ § 308. The landlord is, in no event, under an obligation to defend the tenant, or answerable to him under this covenant, unless he has been actually evicted by some person claiming the premises under a legal title, because the law itself defends every one against wrong.* The covenant goes to the possession, and not to the title, and is broken only by an entry and expulsion, or some actual disturbance in the possession.^ But although a law- ful eviction in some form, must be shown, it need not be an evic- tion by process of law ; it is enough that, on a valid claim being made by a third person, the plaintiif voluntarily yielded up the the possession. If, however, he surrenders the possession without 1 Howes V. Brnshfield, 3 East, K. 491. ''■ Hard v. Fletcher, 1 Doug. 43 ; Evans v. Vaughan, 4 B. & C. 261 ; 6 Dow. & Ey. 349. s Campbell v. Lewis, 3 B. & A. 372; 3 Moore, 35-51 ; 8 Taunt. 715. * Hammond v. Dod, Cro. Car. 5; Noke's Case, 4 Co. 80, b; 1 Lev. 83; Lloyd V. Tompkins, 1 Term K. 671 ; Hays v. Bickerstaff, Vaugh. 118 ; Jervitt v. Ware, 3 Price, 575 ; Hob. 34. 5 Waldron v. McCarty, 3 Johns. R. 471 ; Kortz v. Carpenter, 5 Ibid. 120 ; Whit- lock V. Cook, 15 Ibid. 483 ; Webb v. Alexander, 7 Wend. 281 ; Coble ;;. Welborn, 2 Dev. 388 ; 3 Ibid. 200. 196 LAW OF LANDLOED AND TENANT. [CH. VIII. a legal contest, he assumes the burden of proving that the person entering had title paramount.^ The eviction, also, must appear to have taken place before suit brought ; and if the covenantee never had possession, or if he had possession and retains it still, it ig impossible there could have been an eviction. But if the land is wholly unoccupied, the covenantee acquires constructive posses- sion the moment the deed is executed, and is in such a condition that he may be evicted ; and if the rightful owner undet these circumstances takes possession, it amounts to an eviction.^ § 309. The mere act of forbidding a tenant to pay rent to the plaintiff, unaccompanied by any other disturbance, will not amount to a breach.' Nor, under this covenant, is the landlord bound to rebuild a house in case of its destruction by fire ; nor does such an event amount to an eviction, unless the landlord has expressly agreed to rebuild or keep the premises in repair.* But the act of molestation, whether committed by the landlord himself, or by a servant at his command, will ahke occasion a breach of the covenant.^ This covenant means to insure to the lessor a legal right to enter and enjoy the premises, and if he is prevented from entering by a person already in, under paramount title, an action lies.® In such case, no ouster or expulsion is necessary, on which to predicate a suit, as the lessee is not bound to enter, and commit a trespass ;'' it must, however, be shown expressly, that he was kept out by a title existing in a third person at or before the exe- cution of the lease .^ § 310. The eviction must also be by title both lawful and para- mount ; accordingly, where the eviction was by title subordinate, which the grantee had precluded himself from contesting by his 1 Greenvault 311. A mere recovery in ejectment, against the covenantee, is not a breach of this covenant ; there must be an actual ouster by writ of possession.* But a decree in equity, directing a de- fendant to execute a deed and deliver possession of land, is held to be such ; and the fact, that the decree is founded on a notice to him when he took the deed, of an equity in the land, does not bar his action.^ And although the mere existence of a better title is no breach of this covenant, yet, if it be accompanied with pos- session under it, commenced before the deed containing such cove- nant was executed, it will amount to a breach.^ The covenantee is not bound to defend, after notice to the covenantor, and refusal on his part to defend ;^ and the notice in such case is not required to be in writing.^ <5> 312. If the party holding is a wrongdoer, the remedy of the lessee is as perfect and effectual to dispossess him after, as that of the lessor was before the executioh of the lease, either by eject- 1 Kelly V. Dutch Church of Schenectady, 2 Hill, (N. Y.) E. 105. " "Webb V. Alexander, 7 "Wend. E. 281 ; Lansing v. Van Alstyne, 2 "Wend. R. 565; Phelps v. Sawyer, 1 Aik. (Vt.) R. 150; Maverick v. Lewis, 3 McCord, R. 211. ' Giles V. Comstock, 4 Comst. E. 270. * Kerr v. Shaw, 13 Johns. R. 236 ; Kortz v. Carpenter, 5 Johns. E. 120. 5 Martin v. Martin, 1 Dev. E. 413. e Grist V. Hodges, 3 Dev. R. 200. ' Jackson v. Marsh, 5 "Wend. R. 44. 8 Miner v. Clark, 15 "Wend. R. 425, Bronson, J., dissenting. 17* 198 LAW OF LANDLORD AND TENANT. [ OH. VIIX. ment or summary proceedings under the statute. Therefore, ■where the lessee is prevented from entering into possession by a former tenant, whose term has expired, his remedy must be against the latter, and not against the lessor.' But the covenant may extend to all interruptions, legal or illegal, where there is a plain design evinced to protect the lessee against both, as if the cove- nant be, that the party shall enjoy against all claiming, or pretend- ing to claim any right, ^e. In this case, there was a pretence of right of common set up, to two closes comprehended in the lease ; and it was considered to be the plain intent of the parties, that all disturbances should be guarded against, for if legal claims only were included, the tenant would be subjected to the hardship of trying the right for the landlord, which was the very thing the tenant desired to prevent by this covenant.^ But on a covenant to save harmless against all lawful and unlawful titles, in assign- ing the breach, it must appear that he who entered, did not claim under the lessee himself.^ § 313. A mere personal wrong will not occasion a breach of this covenant ; the molestation must be such as concerns the estate, and amounts to a prohibition of enjoyment ; for if one enters and beats or assaults the lessee, the lessor cannot be charged on his covenant for such a disturbance.* But an entry by the covenantor himself tortiously and without title, is a breach.^ Besides, if the lessee is tortiously evicted or disturbed, he has his remedy at law, and it is only when he is legally evicted, that he has his action on this covenant.^ But if the covenant indemnifies him against a 1 Gardner v. Ketteltas, 3 Hill, (N. T.) R. 330. 2 Southgate v. Chaplin, Com. 230; and in 10 Mod. 383; Lucy u. Levington, 1 Vent. 175 ; Winch. 25. 3 Norman v. Foster, 1 Mod. R. 101. * Ellis a. Welch, 6 Mass. E. 246 ; Penn v. Glover, Cro. Eliz. 421 ; Sedden v. Senate, 13 East, 72. 6 Sedwiok v. HoUenback, 7 Johns. E. 376 ; Cro. Eliz. 544 ; Beunet v. Bittle, 4 Eawle.E. 339. In Ogilvie v. Hull, 5 Hill, E. 54, Chief Justice Nelson says,— No principle is better settled, or more uniformly adhered to, than that there must be an entry, and expulsion of the tenant by the landlord, or some deliberate disturbance of the possession, depriving the tenant of the beneficial enjoyment of the demised premises, to operate a suspension or extinguishment of the rent. 8 Dudley v. Eolliatt, 3 Term E. 584; 2 Saund. E. 178 a, 181 a; Noble v. King, 1 H. Bl. R. 34. CH. VIII.] COVENANT FOR QUIET ENJOYMENT. 199 particular person by name, the covenantor is bound to defend Mm against the entry of that person, whether by title or not, and whether such entry be lawful or not.^ So where one assigned his term for years, and covenanted that the original lease was good, and not made void or incumbered ; a previous lease granted by the assignor, was held to amount to a breach, although the plain- tiff before the assignment, had notice of the lease, and had been attorned to by the under-tenant, and this, although no actual dis- turbance had arisen to the lessee.^ But the mere existence of a previous mortgage, under which the lessee is liable to be dispos- sessed, does not constitute an eviction. And in an action for a breach of this covenant, the declaration set forth the deed, cove- nant, &c., and averred a previous mortgage and subsequent sale of the premises under it, by virtue of^ a decree in chancery, and that the plaintiff was obliged to purchase the premises, in order to prevent his being deprived and ousted of the same ; on demurrer it was held, that there was no eviction, within the spirit and mean- ing of the covenant, for that the covenant could only be broken by entry and eviction.^ § 314. An averment of eviction, under an elder title, is not always necessary to sustain this action ; for if the grantee be unable to obtain possession, in consequence of an existing posses- sion or seizin by a person claiming and holding under an elder title, it is equivalent to an eviction.* But in an action for breach of the covenant for quiet enjoyment, the breach assigned was, that the premises were and had been held time out of mind adversely; on demurrer it was holden bad, for the want of an averment of eviction or disturbance.^ In another case the breach assigned was, that at the time of the demise to the plaintiff- one I. B. had lawful right and title to the premises, and, having such lawful right and title, entered and ejected plaintiff. It was 1 Foster v. Mapes, Cro. Eliz. 212; Haynes v. Bickerstaff, Vangh. 118; Fowle V. Welsh, 1 B. & C. 29. 2 Ludwell V. Newman, 6 Term, R. 458; Level! v. 'Withington, Lutw. 97. " Waldron v. McCarty, 3 Johns. E. 464 j Whitbeck v. Cook, 7 Ibid. 376 ; 8 Ibid. 198; 15 Ibid. 483. * Duvall V. Craig, 2 "Wheat. E. 45 ; Andrews v. Paradise, 8 Mod. E. 318; Gran- nis.u. Clark,%upra. 5 Kortz V. Carpenter, 5 J. E. 120. 200 LAW OF LANDLORD AND TENANT. [CH. VIII. objected, on demurrer, that the plaintiff, in alleging the eviction, ought to have shown the title of I. B., or at least it should have been averred that I. B. had such a title as was inconsistent with the plaintiff's title to possess those premises ; that though it was alleged that I. B. had lawful right and title to the premises, he might only have had a title to recover in a real action and not a right of entry, and that the mischief to be apprehended from this loose mode of pleading was, that it might give cover to an evic- tion by collusion. But the court overruled the demurrer, observ- ing, that if the declaration was certain to a common! intent it was sufficient ; that it would be doing violence to the words to say, that the lawful right and title which it was stated I. B. had, did not legalize his entry ; and that the fair import of the words was, that he had lawful right and title to do that which he did.^ § 315. It is also implied that the tenant shall have the free use of the premises and of every part thereof, and if he be ousted from any material part, he may treat it as an eviction from the whole premises, and throw up the lease ; nor will he any longer be responsible for rent.^ But, if he prefers, he may retain pos- session of so much of the property as he has not been evicted from, and sue the landlord for such damages as he has sus- tained from the partial eviction.^ Therefore, if a man lease a house with estovers, and then destroy all the wood, the lessee may have an action of covenant.* So in a case where the landlord let certain premises, together with a portion of an adjoining yard, and agreed that the tenant should have the use of the pump in the yard jointly with himself, as long as the same should remain there ; though it was held that these latter words gave the landlord full.liberty to remove the pump at his pleasure, yet the court agreed that if those words had not been introduced, the landlord could not have taken it away, or deprived the tenant of the use of it, without subjecting himself to the consequences of a breach of this covenant.^ And if a man lease premises with a watercourse on 1 Foster v. Pierson, 4 Term E. 617. 2 Etheridge v. Osborne, 12 Wend. E. 529. 3 Dudley v. ToUicot, 3 T. E. 584 ; Noble v. King, 1 H. B. .34 * Pompet V. Eicroft, 1 Saund. E. 321 ; S. C. 1 Vent. 26, 44. 5 Eliodes V. Bollard, 7 East, 116. CH. THI.] COVENANT FOR QUIET ENJOYMENT. 201 them, and should afterwards stop the ■watercourse, the tenant may consider it an eviction, or maintain an action for damages against the landlord ; or if he covenants for the quiet enjoyment of a cer- tain close, and afterwards sets up a gate across a lane leading to the close, by which the lessee is obstructed in passing to it, this is a breach of the covenant.^ It was said, also, to be imma- terial whether the gate was erected by right or by wrong ; for in either case, being an obstruction, it should not have been erected there.2 So on a lease of a messuage with a garden, and a house or office at the further end thereof, a covenant for the quiet enjoy- ment of the demised premises was broken, by the building of a mansion-house on part of the garden.* <5> 316. It has been held, also, that if the tenant is deprived of the enjoyment of the premises, by the gross moral turpitude of the landlord, it is equivalent to an eviction. In a case arising in the city of New York, the facts were, that the landlord let out part of the same premises which he himself occupied, and was in the habit of introducing into his part of the house lewd women, for the purpose of prostitution, who made a great deal of indecent noise and disturbance, so as to disturb the rest of persons sleeping in other parts of the house, occupied by the tenant ; that such practices were matters of conversation and reproach in the neigh- borhood, and were calculated to draw odium and infamy upon the house as a place of ill-fame, so that it was no longer respectable for moral and decent persons to dwell or enter therein ; and that the tenant was compelled, by the repetition of such practices, to leave the premises, and did for that cause leave them ; the court held that, under these circumstances, the tenant was not respon- sible for rent, for that the landlord's immoral conduct in this case amounted to an eviction.* But if a tenant by a lease under seal, abandons the premises, and resists the payment of rent subse- quently accruing, on the ground that other apartments in the same building adjoining, or below his, are occupied as a place of 1 Salman v. Bradshaw, Cro. Jae. 304 ; Ludwell v. Newman, supra; Andrews v. Paradise, 8 Mod. 318 ; Morris v. Ediagton, 3 Taunt. 24. 2 Andrews v. Paradise, supra. 3 Kidder v. West, 3 Lev. 167. * Dyett V. Pendleton, 8 Cow. E. 727. 202 LAW OF LANDLORD AND TENANT. [CH. VIII. riot and prostitution, he must show that his landlord created the nuisance, by leasing such apartments for that purpose, or that it existed by his connivance and consent.-^ § 317. The general rule of damages, in an action for a breach of the covenant for quiet enjoyment and eviction, is, that the pur- chaser recovers the consideration-money paid and interest ; not the enhanced value of the premises, whether such value has been created by the expenditure of money in improvements thereon, or by any other more general cause.^ But as a lessee pays no pur- chase-money, he can recover none back upon eviction ; and, in respect to any improvements he may have made upon the pre- mises, and the money expended thereon, he stands upon the same general footing with a purchaser. The rents reserved in a lease, where no other consideration is paid, are regarded as a just equi- valent for the use of the demised premises. In case of eviction the rent ceases, and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. A lessee may, however, recover against his lessor the costs incurred by the former in defending the title, together with the rents paid the lessor since the eviction, during a period not exceeding six years before suit brought.^ Section II. The Covenant against Incumbrances. § 318. Another covenant on the part of the landlord, important to the tenant, is for indemnity against incumbrances ; or that the i Gilhooley K. Washington, 4 Comst. E. 217. In this case, Bronson, C. J., says, — " In the equitable action, for use and occupation, the English courts hold that the tenant is not answerahle, unless he has had the beneficial enjoyment of the pro- perty, and they have gone a great way in protecting the tenant against disturb- ances of all kinds ; but the principle of these cases has never been applied to an action of covenant for the non-payment of rent, which does not depend on the fact of occupation or enjoyment." 2 Kinney v. Watts, 14 Wend. R. 38; 4 Dal. R. 441 ; 2 Mass. R. 432-453; Ibid. 523 ; 2 Wheat. R. 62, note e. 3 Kelly U.Dutch Church of Schenectady, 2 Hill, (N. Y.) E. 105. CH. Vin.] THE COVENANT AGAINST INCUMBRANCES. 203 tenant shall enjoy tte premises free from incumbrances made, or to be made, by the landlord, his heirs, or assigns. Without this covenant, a tenant may be turned out of possession in the middle of an advantageous term, by some incumbrance of the landlord, unknown to the tenant, and have no redress for the injury done to him. If an estate is charged with an incumbrance, a tenant for life is entitled to no such indemnity from the remainder-man, for he is bound in equity to keep down the interest, out of the profits of the estate ; though he is not chargeable with the incumbrance itself, nor bound to extinguish it.^ And if he neglects to dis- charge the taxes, or other ordinary charges upon the property, a temporary receiver may be appointed to lease out the premises, until he collects rent enough to pay off such charges.^ But he contributes only during the time he enjoys the estate.^ If the incumbrancer neglects for years to collect his interest from the tenant for life, he may collect all the arrears from the remainder- man.^ But the estate of the tenant for life would be bound to indemnify the remainder-man for the arrearage of interest accrued in his lifetime ; since the tenant for life must keep down the annual interest, even though it should exhaust the rents and pro- fits ; and the whole estate is to be at the charge of the principal, in just proportions.® >§. 319. In order to justify legal proceedings on this covenant, it is not necessary that the tenant be actually interrupted, or pre- vented from enjoying the premises ; the chance alone of his being disturbed, and his liability to satisfy claimants, or, in other words, the mere existence of an outstanding incumbrance, which may defeat the estate, will constitute a technical breach of the cove- nant, although the incumbrance is suffered to lie dormant ; yet nothing more than nominal damages can be recovered before an actual injury has been sustained.^ To an action on a covenant 1 Saville v. Saville, 2 Atk. E. 463 ; 1 Ves. Jr. 233. 3 Caims v. Chabert, 3 Edw. Ch. K. 312. '" Casborne v. Scarpa, 1 Atk. R. 696 ; Penhym v. Hughes, 5 Ves. K. 99 ; Tracy V. Hereford, 2 Bro. 128. 4 Koe V. Pogson, 1 Madd. E. 582. 6 4 Kent, Com. 71. 5 Jenkins v. Hopkins, 8 Pick. E. 346 ; Chappie v. Bull, 17 Mass. E. 220; The People V. Nelson, 13 Johns. E. 340 ; Jackson v. Sternbergh, 20 Johns. R. 49 ; Bar- rett V. Porter, 14 Mass. E. 143. 204 LAW OF LANDLORD AND TENANT. [CH. VHI. (in an assignment of a lease) for enjoyment, free and clear of all arrearages of rent, assigning as a breach that the rent was in arrear and unpaid, it is sufficient for the defendant to plead that he left so much money in the hands of the plaintiff as would suffice to discharge the rent then in arrear, to the lessor.^ But if a les- see, subject to a condition for reentry on non-payment of rent, underlets and covenants for quiet enjoyment without the inter- ruption of himself, or of any other occasioned by his procurement or consent, his default in paying this rent, by means whereof the under-lessee is evicted, is clearly a breach.^ <§> 320. A covenant against incumbrances, if broken by a mort- gage previously given by the grantor, is broken at the time the deed is delivered,^ and the party need not be actually evicted.* An exception immediately following such a covenant, of a certain mortgage to a specified amount, operates as a qualification of the covenant, which is broken if the mortgage exceeds that amount.® A preexisting right to pass over the land, to take water from a spring in it, is a breach of this covenant ; so also is a public highway over the land.^ And evidence is not admissible to show that the grantee knew of the existence of the easement.'' It has been held, also, that a previous sale of part of the land, by arti- cles of agreement, is an incumbrance on the legal estate.^ So an inchoate right of dower is an existing incumbrance, and not a mere possibility or contingency.^ And an agreement for an under- lease, and to take the furniture at a valuation, may be considered void, if, on taking possession, the rent is found to be in arrear.^" 1 Griffith v. Harrison, 4 Mod. 249. 2 Stevenson v. Powell, 1 Bulst. 128. " Bean v. Mayo, 5 Greenl. E. 94; Ingersoll v. Jackson, 9 Mass. E. 495 ; Stew- art V. Drake, 4 Halst. E. 141 ; Funk v. Voneida, 11 S. & E. 109 ; Dayis v. Lyman, 6 Conn. E. 249 ; Stannard v. Eldridge, 19 Johns. E. 254 ; "Wyman v. Ballard, 12 Mass. E. 304 ; Hall v. Dean, 13 Johns. 105. * Chapman v. Holmes, 5 Ealst. E. 28 ; Garrison v. Sandford, 7 Ibid. 260 ; Lott V. Thomas, 1 Penn. E. 407 ; Tufts v. Adams, 8 Pick. E. 547. 6 Potter V. Taylor, 6 Verm. E. 676. 8 Harlow v. Thomas, 15 Pick. 68 ; Mitchell v. Warner, 5 Conn. 497. ' Kellogg V. Ingersoll, 2 Mass. 97 ; Hubbard r. Norton, 10 Conn. 431 ; Pritchard V. Atkinson, 3 N. Hamp. 335. This seems to have been doubted in a New York case, Whitbeck v. Cook, 15 Johns. E. 483. 8 Seitziuger v. Weaver, 1 Eawle, E. 382. 8 Porter v. Noyes, 2 Greenl. 22. 1" Patridge v. Townley, 3 B. & P. 172. CH. VIII.] FOR FITRTHEE ASSURANCE. 205 § 321. The words permitting and suffering do not bear the same meaning as knowing of and being privy to ; the meaning of the former is, that the party shall not concur in any act over which he has a control, and such a covenant extends only to such permissive acts of the lessor, as had through that permission an operative effect in charging the estate.^ We may observe, also, that if a covenant against incumbrances has been broken before an assignment by the lessee, which have not been removed, the cove- nant will pass to the assignee, so as to entitle him to any damages he may sustain after the assignment ; for this is not the mere assignment of a chose in action, but there is a continuing breach, and the ground of damages has been enlarged since that time.^ § 322. The rule of damages, upon breach of a covenant against incumbrances, is laid down by Chief Justice Savage, to be the amount the plaintiff has lawfully paid, to discharge the incum- brance ; but if he has not paid off the incumbrance, he is still entitled to nominal damages, because an outstanding incumbrance is a technical breach of the covenant, although it does him no harm until he is evicted under it, or until he pays it, which he may do without waiting to be evicted.^ Section III. For further Assurance. § 323. A third covenant, on the part of the landlord, some- times inserted in a lease, is the covenant for further assurance, by which the lessor contracts that he will, at any time, perform 1 Hobson V. Middlcton, 6 Bam. & Cress. 295. 2 Sprague v. Baker, 17 Mass. E. 586. 8 Dimick v. l/ockwood, 10 "Wend. E. 142 ; Delavergne v. Norris, 7 Johns. E. 358 ; 16 Ibid. 254 ; Prescott v. Truman, 4 Mass. E. 627 ; Hall v. Dean, 13 Johns. K. 105 ; Garfield v. Williams, 2 Verm. E. 327 ; Garrison v. Sandford, 7 Halst. E. 261. In an action on the covenant of seizin, for the purpose of ascertaining the measure of damages, the true consideration, and the fact that only part of it has been paid, may be shown by parol, although the deed expresses a different consi- deration, and acknowledges that the whole of it has been paid; and there is no occasion, in such a case, to resort to a court of equity for relief. Bingham v. Wei- derwax, 1 Comst. 509. 18 206 LAW OF LANDLORD AND TENANT. [OH. Tin. and execute such further reasonable acts, writings, and convey- ances of the premises, as the lessee's counsel may legally advise to be necessary, for completing the transfer of such an interest, or term, as the parties have contracted for. This covenant is not usually introduced, because the covenant for quiet enjoyment necessarily implies that the lease is perfect, as a good and valid demise ; and granting an imperfect, and therefore a bad lease, would be a breach of the latter covenant. It is always, however, inserted in conveyances of freehold property, and generally in assignments of leasehold premises. It is a covenant running with the land, of which an under-tenant may avail himself as well as the original lessee ; ^ and may be important to both, inasmuch as it relates to the title of the lessor, and also to the instrument of conveyance ; and operates as well to secure the performance of all acts for supplying defects in the former, as to remove all objec- tions to the sufficiency and security of the latter. ^i 324. If there be a defect in the title, the lessor will be decreed, under this covenant, to convey to the lessee such title as he may afterwards obtain ; even although he acquired it by purchase, for a valuable consideration.^ And the lessee may re- quire the removal of a judgment, or other incumbrance, under this covenant ; ^ but a mortgagor is not bound to release his equity of redemption.* Where a party covenanted that he had not done, nor permitted, nor suffered to be done, any act whereby the estate was incumbered, it was held that his assent to an act, which he could not have prevented, was no breach of the covenant.^ And where a defendant, by an agreement of present demise, let premises to the plaintiff, which the parties in possession refused to quit, the defendant was held bound to put the defendant in possession, as a contract to do so was implied ; and that the plaintiff might maintain an action for the breach of such contract, and was not obliged to resort to an action of ejectment against 1 Middlemore v. Goodale, Cro. Car. 503. •* 2 Middlebury College v. Cheney, 1 Verm. E. 336 ; Taylor v. Debar, 1 Oh. Cas. 274 ; 2 Ibid. 212 ; Seabourne v. Powell, 2 Vera. 11; 2 P. Wms. 630. " King V. Jones, 5 Taunt. E. 427. * Atkins V. "Uton, 1 Ld. Eay. 36. ^ Hobson V. Middleton, 9 D. & E. 249 ; 6 B. & C. 295. CH. VIII.] FOK FURTHER ASSURANCE. 207 the wrongful occupant.^ A lease and entry by the lessee is not a disseisin in fact, unless the entry be forcible, or with a manifest intention to disseize. A disseisin, being the -wrongful act of a stranger, it is no breach of validity of title that the person, under whom the vendor derives title, had leased part of the pre- mises sold to one who had afterwards entered on the premises demised.^ § 325. The term reasonable act, generally made use of in this covenant, means such an act as the law requires ; and if it be unnecessary, it is not a reasonable act, or one which would be required by law. Therefore, a refusal to do something, which, if executed, would be useless and nugatory, will not constitute a breach of this covenant.^ The covenant, to make such assurance as the lessee's counsel shall advise, requires that the counsel shall give his advice, and that the covenantor shall be notified thereof. It also requires that the covenantee procure the instrument to be drawn and tendered to the covenantor for execution.* <§i 326. According to the English cases, if a covenantor can read the deed, he is bound to execute and deliver it immediately upon its being tendered to him for execution ; and he will not be allowed time to obtain the opinion of counsel ; although he may not be acquainted with the legal sense and operation of the words, and whether they agree with his covenant or not. But if it is written in a language he does not understand, he may refuse to deliver it, until he can procure some one to explain it to him.^ The same rigidity, however, does not appear to exist in our law, for in an action upon a covenant for further assurance, "as by the plaintiff or his counsel should be reasonably devised, advised, or required," the breach assigned was, that the plaintiff had requested defendant to make a lawful and reasonable assurance to the plain- tiff, of the right of dower of defendant's wife, yet the said defend- ant had not made such assurance, &c. ; on demurrer, the breach 1 Coe V. Clay, 3 Moore*& Pa. 57 ; 5 Bing. K. 440. 2 Jerritt v. Weare, 3 Price, 575 ; 2 D. & E. 38. " Warn v. Bickford, 9 Price, E. 43. 4 Cro. Eliz. 9, 298 ; 2 Lev. 95 ; 1 Mod. 104. 5 Manser's Case, 2 Eep. 3, a; 3 Dy. 337, b; 1 Eol. Abr. 441 ; 2 Cro. Car. 299. 208 LAW OF LANDLOED AND TENANT. [CH. Vm. was holden bad. For the plaintiff, or his counsel, were to devise the further assurance ; and, after having done so, the plaintiff was bound to give notice thereof to the defendant, allowing him a reasonable time to consider of it ; and such facts ought to be averred.^ Section IV. The Covenant to Repair. <§! 327. The landlord sometimes covenants to repair ; and for his own sake will generally prevent the premises from running to decay ; but unless he binds himself by an express agreement to that effect, the tenant, whether for life, for years, or at will, can- not compel him to repair. The common law has always thrown the burden of repairs, as much as possible, on the tenant. Enjoy- ing the benefits, he should bear the inconveniences ; and it would be unjust that the expense of accumulated dilapidation, should, at the end of the tenancy, fall upon the landlord, when a small out- lay on the part of the tenant in the first instance, would have pre- vented any such expense becoming necessary. <§. 328. In conformity to this principle, it was laid down by Chief Justice Savage, that " it is not in the power of a tenant to make repairs at the expense of his landlord, unless there be a special agreement between them authorizing him to do this. The tenant takes the premises for better or for worse, and cannot involve the landlord in expense for repairs without his consent."^ As in a case where there was a lease of a house, with the use of a pump standing on the lessor's premises, it was held the tenant had no remedy against the landlord for suffering the pump to be out of repair, unless he had agreed to keep it in repair.^ So where a tenant, under a covenant to repair, pulled down a party wall, (being in a ruinous condition,) and rebuilt it at the joint expense of himself and the occupant of the adjoining house, to whom he had given notice in the landlord's name, but without his 1 Miller v. Parsons, 9 Johns. R. 336 ; Switzer v. Hummel, 3 S. & R. 228. 2 Mumford v. Brown, 6 Cow. R. 475. 3 Pomfret v. Eicroft, 1 Saund. R. 320; 7 East, R. 116. CH. VIII.] THE COVENANT TO REPAIR. 209 authority, he could not maintain an action against his landlord for a moiety of the expense of rebuilding such party wall.^ "§> 329. And if the premises have become uninhabitable by fire, and the landlord having insured them, has recovered the insur- ance money, the tenant cannot compel him, either at law or equity, to expend the money so recovered, in rebuilding, unless he has expressly engaged to do so.^ Nor -will a court of equity, under such circumstances, prevent the landlord from even suing for the rent, until he shall have rebuilt the premises ;^ for the tenant — unless there is an express agreement to the contrary, or the land- lord is under a covenant to repair — is obliged to continue the payment of rent during the whole term, although the premises are untenantable, or even burnt down in the mean time. ^j § 330. A different rule seems to prevail in Louisiana, where it has been held, that a lessor is bound to keep the premises in a con- dition fit for the purposes for which they were leased. If he fails to make the necessary repairs during the lease, the tenant may make them himself, and deduct the amount from the rent. The lessor is there also bound to indemnify the lessee for all damage sustained by the latter in consequence of the vices and defects of the thing leased, though the lessor knew nothing of their exist- ence, at the time of the lease, and even where they have arisen since. And where, after the commencement of a lease, the house becomes so much injured as to be incapable of being rendered fit for the purposes for which it was leased, otherwise than by re- building it, and the lessor offers to dissolve the lease, which the lessee refuses, and continues to occupy the building ; it was there held, that the lessor will not be responsible for any damage sub- sequently sustained by the lessee in consequence of the condition of the building, and that the latter will not be entitled to claim any diminution of the rent for the period he continued to occupy the premises after the offer of the lessor to annul the lease.* 1 Pizey V. Rogers, 1 Ey. & Mor. 357. 2 Pindar v. Rutter, 1 Term R. 312 ; Carter v. Eockett, 8 Paige, 437. s Leeds v. Chectham, 1 Simon, R. 146 ; Belfour v. "Wesden, 1 Term R. 314 ; ISVes. R. 115. * Perrett v. Dupre, 3 Robinson, R. 52. 18* 210 LAW OF LANDLORD AND TENANT. [CH. VHI. § 331. No implied covenant to rebuild, or repair damages on the part of the landlord, arises at common law, from the exception of casualties by fire and tempest, in the lessee's covenant to repair. As in a case where an action was brought for half a year's rent : the defendant pleaded that he covenanted to repair, casualties hy fire, and tempest excepted; that a violent tempest arose, and threw down a stack of chimneys belonging to the house, and damaged the house so much, that it would have become uninhabit- able, if he h^d not repaired it, and that he laid out ^630, which he was ready to set off against the rent claimed. The court held, that the landlord was under no obligation to repair damages occa- sioned by fire or tempest, and that the exception was introduced into the lessee's covenant for his benefit, and to exempt him from particular repairs.^ And if the landlord has expressly agreed with his lessee that he will, in case the premises shall be burned, rebuild and place them in the same condition they were in before the fire, he is only bound to restore the premises to the same state in which they were hefore Tie let them, and is not bound to rebuild any such additions as the tenant may have made himself. And the tenant is bound to continue the payment of rent while the premises are rebuilding, provided there is no unnecessary or unreasonable delay on the part of the landlord to rebuild, after he had been notified of the destruction of the premises.^ As this is a covenant running with the land, it is one of which an assignee or under-tenant may have the benefit.^ Section V. The Covenant to Renew the Lease. § 332. Another covenant, sometimes inserted in the lease, on the part of the landlord, adding much to the stability of the lessee's interest, and affording inducement to permanent improvement, is, that he will renew the lease at the expiration of the term, for the 1 Weigal V. Waters, 6 Term E. 488. A lessor is not liable to repair under a covenant for quiet enjoyment, notwithstanding the premises are destroyed by fire. Brown v. Quilter, Ambl. 619 ; S. C. 2 Eden, 219. " Loader v. Kemp, 2 Car. & Payne, 375. 8 Demarest v. Willard, 8 Cow. R. 206. CH. VIII.] THE COVENANT TO EENBW THE LEASE. 211 same, or some other period mentioned. Under this covenant the lessor is bound to make another lease, either to the lessee or his assignee ; and if the terms of such covenant are express and unequivocal, the performance of it will be duly enforced by a court of equity.i If the covenant be, to renew, at the request of the lessee (without naming his executors) within the term, and the lessee die ; the executors are entitled to the renewal, if they apply within the term.^ This is also a covenant running with the laiid, and a purchaser of the estate will be bound by it.^ § 333. A covenant to let the premises to the lessee at the expi- ration of the term, without mentioning any price for which they are to be let ; or to renew, upon such terms as may be agreed on, in neither case amounts to a covenant for renewal, but is altogether void, for uncertainty. Nor will a general covenant for renewal, be construed to imply a perpetual renewal, unless the words are ex- pressly to that effect ; the most a lessor is bound to give on such a covenant is, to renew for one term only. Covenants for continued renewals are not favored, as they tend to create a perpetuity.* A covenant to renew a lease "under the same covenants contained in the original lease," is satisfied by a renewal of the lease for ' another term, omitting the covenant to renew.^ For, if the con- ' Rutgers v. Hunter, 6 Johns. Ch. E. 215 ; Pritchard v. Ovey, 1 Jac. & Walk» 404 ; Eees v. Ld. Dacre, cited 9 Ves. E. 332 ; 2 Br. Ch. Ca. 636 ; Iggulden v. May, 9 Ves. 325 ; Fumival v. Crew, 3 Atk. R. 83 ; 7 East, R. 237; 2 N. R. 449. 2 Hyde v. Skinner, 2 P. Wms. 196 ; 1 Plowd. 286. With some corporations, as, for instance, Trinity Church in New York, and even with private individuals, it is very usual to grant a new lease to the tenant in possession, at the end of the term ; from which fact, many tenants claim a right of renewal. But, independent of some positive local custom, — of which none such exists that the writer is aware of, ' — it is a demand that cannot be enforced at law ; nor have applications to equity for the purpose been attended with greater success. The so-called tenant- right of renewal confers no positive interest, either vested or contingent ; and is a mere naked possibility, depending solely on the caprice of the lessor. A right of renewal must be the result of express compact ; and to secure it is the object of the covenant we are now discussing. ^ Piggot V. Mason, 7 Paige, E. 412; Richardson v. Sydenham, 2 Ver. 447; 2 Ves. E. 498. * Whitlock V. Duffield, 1 Hoffman, Ch. E. 110 ; Abeel v. Eadcliff, 13 Johns. E. 297 ; Rutgers v. Hunter, 6 Johns. Ch. R. 215 ; Moore v. Toley, 6 Ves. E. 237; 2 Ves. Jr. 443 ; 2 Vern. E. 447 ; 9 Ves. 334. 5 Carr v. Ellison, 20 Wend. E. 178 ; Richardson v. Sydenham, 2 Vern. E. 447 ; Tritton v. Eoote, 2 Bro. C. C. 636. 212 LAW OF LANDLOED AND TENANT. [CH. VIII. tinued grant of successive leases, and not a single renewal onlj, had been intended, words would naturally have been made use of, indicating such an intention. A different construction would vir- tually lead to a grant in perpetuity, and where no consideration appears for a grant of so extensive a nature, such cannot be a reasonable construction. Under certain circumstances, a grant of this character may not be unreasonable ; but in every case the intention must be expressed without ambiguity. It is said to be even better, for avoiding fraud, to suffer a party to escape out of a contract, which he may have intended to make, than to enforce it upon a conjecture that such was the intent of the parties.^ § 334. Upon a covenant to renew, in general terms, not speci- fying the particular pei-iod for which the renewal is to be made, as to grant such further lease as the lessee, his executors, kc, shall desire ; a lease for fifty years, or any other excessive term, will not be granted. The covenant, however, will receive a rea- sonable construction, and the usual term of twenty-one years will be directed.® It has also been decided, in a recent English case, that a covenant from time to time, to renew and perfect such other further assurance as the lessee should require, at such rents and under such covenants as were contained in said indenture of lease, at the charge of the lessee, was to be construed as a cove- nant for further assurance, and not for perpetual renewal.^ § 335. Where, in a building lease for twenty-one years, at a certain annual rent, it was covenanted that, at the expiration of the term, the buildings erected, and the improvements made by the lessee, should be valued in the manner specified in the lease ; and if the lessor should not abide by and pay the amount of such valuation, he should renew the lease or redemise the lot, at such rents and upon such terms as might be agreed upon between the parties. At the end of the term, the lessee refused to accept a redemise of the lot upon any terms, and insisted upon being paid for his buildings and improvements, according to the valuation 1 Igguldenw. May.SMpra; Willan w.Willan, 16 Ves. R. 84; 3 Ibid. 298 ; 13 Ibid. 549 ; Harnett v. Yielding, 2 Sch. & Lef. 558. '2 Hyde v. Skinner, 2 P. Wms. 196 ; Bridges v. Hitchcoclc, 1 Bro. P. C. 522. " Brown v. Tighe, 8 Bli. 272 ; N. S. 2 CI. & Pin. 396. CH. Vlir.] THE COVENANT TO RENEW THE LEASE. 213 thereof made pursuant to the covenant in the lease ; and the les- sor tendered a renewal of the lease, for the same term and for the same rent, -without any covenants as to buildings, or paying for buildings or improvements ; Chancellor Kent held that the lessee was bound to accept the renewal of the former lease so tendered, ^or give up all claim to be paid for the buildings or improvements. ^ A tenant may, sometimes, also have a right of renewal by force ^ "■of a long-continued practice to renew, independent of any cove- nant to that effec^^But the mere fact of a tenant's having > expended money in improving the estate, can give him no right to demand a renewal in a court of equity. There must be some covenant or agreement, or at least some arrangement with the tenant, relative to the improvements, by which the landlord has encouraged him to proceed. Equity will then consider such arrangement as an implied agreement that the tenant shall have the benefit of his expenditure, and interfere to prevent the land- lord from putting an end to the tenancy.^ § 336. In the case_^of church leases, and leases from the trustees of a charity/where the lessors are in the practice of giv-" ing new leases to their tenants from time to time, upon the pay- ment of a renewal fine, or a reasonable addition to the rent, the tenant, in regard to third persons, has a vendible interest in such imperfect right of renewal, which a court of equity will recognize and protect, although such renewal depends upon the mere voli- tion of the lessors. And if a person, who has a particular or spe- cial interest in a lease, obtains a renewal of it in consequence of his being in possession as tenant, or from his having such special interest, the renewed lease is in equity considered as a mere con- tinuance of the original lease, for the protection of the rights of all parties who had any legal or equitable interests in the old,^ lease/ Accordingly where a complainant, as the lessee of pre- mises, part of which had been let by him to an under-tenant, con- tracted with the defendants to sell his interest in the premises to them, for the purpose of enabling them to obtain a renewal, with- out prejudice to the rights of the sub-lessee, and the defendants, 1 Eatgers v. Hunter, 6 Johns. Ch. R. 215. 2 Pilling V. Armitage, 12 Ves. R. 78 ; 2 Bro. Ch. Cas. 140 ; 1 Eq. Cas. Abr. 18. 214 LAW OF LANDLOBD AND TENANT. [CH. VIII. in consequence of such agreement, obtained a new lease of the pre- mises in their own names, and then evicted the sub-lessee, by which the complainant was compelled to make good the loss or damage sustained by him ; it was held that the complainant was entitled to a specific performance of the agreement, and to be indemnified against the claim of the sub-lessee ; and that he had a lien for the unpaid purchase-money upon the legal interest in the premises, which the defendants had acquired under their new lease.^ § 337. Insolvency ,2 or the commission of a felony, on the part of the covenantee,^ will prevent a decree for the specific perform- ance of a covenant of renewal. Nor will the court enforce per- formance where a tenant has committed waste, treated the land in an unhusband-like manner, or been guilty of a breach of cove- nant, for which the lessor has a right of reentry.* Nor in cases where the agreement to renew has been accompanied by fraud or misrepresentation ; ^ or the tenant has already been guilty of wilful breaches of a covenant, agreed to be inserted in the new lease. But a surrender and conveyance to the lessor of an under- lease, is no bar to a claim on the part of the lessee, or his assigns, for a renewal of the original lease, according to the covenant.® And if a tenant assigns his contract to a third solvent party, and afterwards becomes bankrupt or insolvent, the court will decree a specific performance against the landlord, in favor of such third party.'' Injuries accruing to the landlord by the acts of the tenant, but which do not amount to a breach of covenant, form no ground for refusing a decree for the specific performance of the contract ; and therefore where the tenant, under an agree- ment for a building lease, had built a brewhouse, which injured the value of the landlord's other property in the neighborhood, 1 Phyfe V. "Warden, 5 Paige, B. 268. 2 Buckland v. Hall, 8 Ves. R. 92 ; 17 Ibid. 313 ; 16 Ibid. 466 ; 2 P. "Wms. 196 ; O'Herliby v. Hedges, 1 Sch. & Lef. 123. 8 ■Willipgham v. Joyce, 3 Ves. 169. * Hill V. Barclay, 18 Ves. R. 63 ; Gourlay v. Duke of Somerset, I Ves. & B. 68 ; 3 Ibid. 29. 6 Pendred v. Griffith, 1 Br. P. C. 314. " Piggott V. Mason, 1 Paige, R. 412. ' Crosbie v. Tooke, 1 Mylne &. Keen, 431 ; 1 Mont. & Ayr. 214, 435. CH. VIII.J THE COVENANT TO RENEW THE LEASE. 215 but there was no covenant not to build a brewbouse, tbe court decreed performance ; saying that if the erection became a nui- sance, the defendant had a remedy at law.^ >§> 838. As every contract depends upon the consideration for its validity, it is necessary that there be a sufficient consideration, on the part of the lessee, to support this covenant ; for if an agreement for a renewal be unequal, unjust, or inserted by mis- take, a specific performance will not be decreed. A bill was filed on a covenant for the renewal of a leasehold estate, of the yearly value of £130, at a fine of ^3, by an addition of ten years ; but as there was no adequacy of price for this renewable perpetuity, no onerous services on the part of the lessee, no money advanced, and no improvement made, the bargain was considered so hard and injurious that the bill was dismissed.^ For a similar reason, a voluntary agreement indorsed on a lease, by one not a party to it, but only a remainder-man, will not bind him to a performance of a covenant for renewal, contained in such lease .^ So a pro- mise by letter to renew a lease, in consequence of money already expended on the premises, is a void promise, being founded upon a past consideration, which equity will not enforce. Nor will the laying out money afterwards, if it is voluntary, vary the case ; but if the promise is founded on an expressed intention of doing so, a specific performance will be decreed.* § 339. If the tenant is guilty of laches in demanding a renewal, equity will not, in general, aid him.^ Circumstances may, in par- ticular cases, excuse the laches ; but generally the lessor cannot continue bound by his covenant, where the lessee has neglected to perform the conditions with which it was coupled. There would be no mutuality in such dealing, if it were left to the option of the lessee alone to enforce the contract when he pleased, but to leave himself free as long as he found it convenient.^ The court will only interfere beyond the stipulations of a covenant. 1 Gordon v. Smart, 1 Sim. & Stn. 66. 2 Eedshaw v. Bedford Level, 1 Eden, B. 346. 8 Dowling V. Mill, 1 Mod. E. 541 . '' Robertson v. St. John, 2 Bro. C. C. 140 ; Eichardson v. Sydenham, supra. 5 Eaton V. Lyon, 3 Ves. 690 ; 1 Ball & B. 285. " City of London v. Mitford, 14 Ves. 41. 216 LAW OF LANDLORD AND TENANT. [OH. VIII. where a literal performance has been prevented by unavoidable accident, fraud, surprise, or ignorance not wilful, and upon com- pensation being made, and no injury done to the lessor.^ Accord- ingly where an original lessee, with a covenant for renewal, died, and the instrument came into the possession of his executor, who was ignorant of the covenants of the lease, and that his testator was one of the lives named therein, until apprized of it by his soli- citor, the court were of opinion that such ignorance of the con- tents of the lease did not entitle the plaintiff to seek relief in a court of equity, or absolve him from the effect of omitting to apply for a renewal in time.^ So when it appeared that the assignee of the lease did not know of the death of the cestui que vie, but accounted for his ignorance on the ground that the description in the lease, of the residence and trade of the person, did not cor- respond with his actual residence and trade at the time of his decease ; and, therefore, though the owner of the lease knew of the death of this person, he was mistaken as to his identity, and immediately upon his receiving information on the subject applied for a renewal ; the Master of the Eolls, Sir J. Leach, thought that these circumstances did not "entitle the plaintiff to relief in equity, upon the principle that a lessee was bound to inform him- self correctly as to the lives, and make application within the pre- scribed period.^ § 340. The legal effect of taking a new lease, is a surrender of the old one ;^but a renewed lease is to be considered as a continu-"! ance of the original lease, for the protection of all legal interests! carved out of it, which, when once well created, the law does not | permit to be destroyed.^ It was formerly considered necessary^ to obtain the concurrence of all the under-lessees to a surrender of their existing interests, in order to obtain a renewal of the prin- cipal lease, and such renewal might be prevented or delayed by the refusal of one under-tenant to surrender his lease ; but if there was no covenant in the under-lease to that effect, the court 1 Eaton V. Lyon, supra; 1 Vcs. Jr. 475; 3 Ves. 295; Kawstome v. Bentley, 4 Bro. C C. 415. But see Maxwell v. Ward, 11 Price, 16, the opinion of Lord C. B. Richards. 2 Maxwell v. Ward, 13 Price, 676; S. C McLel. 458, 464. » Harris v. Bryant, Rolls, 10 Dec. 1827, cited Piatt on Covenants, 263. » Collett V. Hooper, 13 Ves. R. 260. CH. VIII.] COYENANT TO PAY TAXES AND ASSESSMENTS. 217 possessed no power to compel the under-tenant to surrender.^ The statute 4 (ieo. II. c. 28, § 6, from which the section of the Kew York Reyis e d Statutes before mentioned is taken, provided a remedy for such mconveniences, by enacting that, in case any lease shall be surrendered, in order to be renewed, the renewal shall be good and valid to all intents and purposes, without a sur- render of any of the under-leases derived out of the original lease, allowing all the parties, however, to enjoy their rights and reme- dies, in the same manner and to the same extent as if the original lease still continued. Section VI. The Covenant to Pay Taxes and Assessments. § 341. Another obligation which the law imposes upon the landlord, when the lease is silent upon the subject, is the payment of all State and county taxes and assessments, for city or county improvements, chargeable upon the premises, or any ground-rent the property may be subject to.^ But an express agreement is sometimes introduced into the lease, by which this obligation is shifted, and the tenant undertakes to pay them ; yet without such agreement the tenant may discharge them, and deduct what he is obliged to pay out of the rent. The lessee's covenant will run with the land, and bind the assignee of the term.^ The landlord, also, sometimes covenants' to pay all, or a certain portion of such charges only, but, according to the English cases, he is charge- able only in proportion to the rent he receives ; and where he covenanted to pay taxes, and the premises were taxed, at £150, and he received only £120 for rent, the covenant was held to be satisfied by the payment of the tax at the rate of £120.* And if he expressly covenants to pay all taxes charged, or to be charged upon, or in respect of the land during the continuance of 1 Colchester v. Amott, 2 Vern. R. 383 ; S. C. Free. Ch. 124. 2 Taylor v. Zamira, 6 Taunt. R. 524 ; 12 East, R. 469 j Carter v. Carter, 5 Bing. 409 ; 5 B. & C 789 ; "Watson v. Atkins, 3 B. & A. 647. s Post V. Kearney, 2 Comst. R. 394. * Yaw V. Leman, 1 Wils. R. 21 ; and see "Watson v. Atkins, 3 B. & A. 647. 19 218 LAW OP LANDLORD AND TENANT. [CH. VIII. the term, and gives the lessee permission to build on the land, ■who subsequently builds, and thereby increases the annual value of the premises, and ■with it the amount of the taxes, the landlord will be bound to pay taxes only in proportion to the value of the land -without the building, and the tenant must make up the balance for the improved value. ^ § 342. The obligation of the landlord to pay all public charges against the property, except such as the tenant has expressly undertaken to pay, renders him liable also to reimburse the tenant for all such payments as he has been obliged to make, to protect his goods, or the property leased, from the demands of the public collector.^ And ■where the goods of an out-going tenant, left by him on the farm, were distrained for a tax payable by the tenant, but which the statute gave him power to deduct from his rent ; the court held that, as the tax must ultimately fall on the landlord, and the tenant had been compelled to pay it, in order to ransom his goods, he might recover the amount from the landlord as money paid to his use.^ 1 Watson V. Home, 7 B. & C. 285. 2 Spencer v. Parry, 3 Ad. & EI. 331 ; Lubbock v. Tribe, 3 M. & Wels. 607. 3 Dawson v. Linton, 5 B. & A. 521. CH. IX.] OF THE COVENANT TO EEPAIE. 219 CHAPTER IX. COVENANTS ON THE PART OF THE LESSEE. Section I. Of the Covenant to Repair. § 343. Independent of an express agreement, the law imposes upon every tenant, whether for life or years, an obligation to treat the premises in such a manner that no substantial injury shall be done to them ; but that they may revert to the lessor at the end of the term unimpaired by any wilful or negligent con- duct on his part. A tenant for years, or from year to year, must keep the premises wind and water tight ; ^ and make fair and tenantable repairs, as by putting fences in order, or replacing doors and windows that are broken during his occupation ; ^ or, if it is a furnished house, must take care of the furniture, and leave it with the linen, &c., clean and in good order.^ But he is not bound to rebuild premises which have become ruinous during his occupation, from any accident, unless he is under a covenant to rebuild.* Neither is he liable for the mere wear and tear of the premises ; ^ nor answerable if they are burnt down ; nor bound to replace doors and sashes worn out by time ; to put on a new roof, or make similar substantial and lasting repairs, or what are called general repairs.^ Nor is he bound to do painting, whitewashing, and papering, which are mere matters of ornament, (unless neces- sary to preserve exposed timber from decay,) even though he be 1 Anworth v. Johnson, 5 Car. & Pa. 239 ; Leach v. Thomas, 7 Ibid. 327. 2 Cheetham v. Hampson, 4 Term E. 318 ; 18 Ves. K. 331 ; Ferguson v. ;-, 2 Esp. K. 590. 8 White V. Nicholson, 4 Man. & Gr. 95 ; Hawley v. Stanley, 12 Mees. & Wels. 827. * Anworth v. Johnson, supra; Bullock v. Dommitt, 6 Term E. 650. s Torriano v. Young, 6 Car. & Pa. 8. • 8 Leach v. Thomas, supra; Doe dem. Thomson v. Avney, 12 Ad. & El. 476; S. C. 4 Par. '& Da. 177 ; Horsefal v. Mather, Holt's N. P. R. 7 ; Brown v. Crump, 1 Marsh. 507. 220 LAW OF LANDLORD AND TENANT. [CH. IX, uqder a covenant to leave the premises "in good and sufficient repair, order, and condition." ^ § 344. As to farming leases, a tenant is also under an implied obligation to repair, but it differs from his liability to repair houses in this respect, that it extends only to the dwelling-house occupied by the tenant ; the burden of repairing the out-buildings and other erections on the farm, being sustained either by the landlord or the tenant, (in the absence of any express provision in the lease,) by the particular custom of the country in which the farm is situ- ated. He is, however, always bound to keep the soil in a proper state of cultivation ; and to preserve the timber and ornamental trees in good order, if there be any growing on it.^ The bare relation of landlord and tenant, is a sufficient consideration for a promise by the tenant, to treat the farm in a husbandlike manner, and to keep the fences in repair, as well as to cultivate the lands according to the custom of the country ; though not for a promise to repair, or to spend a certain amount annually for manure.^ And in an action against a tenant, upon promises that he would occupy the farm "in a good and husbandlike manner, according to the custom of the country," an allegation that he had treated the estate " contrary to good husbandry, and the custom of the country," was proved by showing, that he had treated it contrary to the prevalent course of husbandry in that neighborhood ; as by tilling half his farm at once, when no other farmer there tilled more than a third, though many tilled only a fourth ; and it is unnecessary to show any precise definite custom or usage in respect of the quantity tilled.* All these duties fall upon a ten- ant without any express covenant on his part ; and a breach of them will, in general, render him liable to be punished for waste, without regard to the person by whom the act of waste may be committed ; for it has been held since the time of Lord Coke, that a tenant, whether for life or years, shall answer for the waste done by a stranger, and must take his remedy over.^ " 1 Wise V. Metcalfe, 10 B. &. C. 312. 2 Hern v. Benbow, 4 Taunt. 764 ; Co. Lit. 53. 8 Brown v. Crump, 1 Marsh. E. 567 ; 6 Taunt. E. 300 ; Powley v. Walker, 5 Term R. 373 ; Tempest v. Rawling, 13 East, 18 ; Cheetham v. Hampson, supra, * Legh V. Hewett, 4 East, K. 154 ; Dalby v. Hirst, 3 Moo. 536. ^ Lord Mansfield, in Taylor v. Whitehead, 2 Doug. E. 745 ; Attersol v. Stevens, CH. IX.] 0¥ THE COVENANT TO REPAIR. 221 § 345. Waste is defined to he, a spoil or destruction in houses, lands, or tenements, to the damage of him in reversion or remain- der ; and may be either voluntary or permissive. It is voluntary where the tenant does some actual injury to the premises, as in pulling down or destroying a house, ploughing up a flower-garden, or the like ; and permissive, when he neglects to do what might have prevented the waste, as suffering the house to fall down or decay for the want of repair. It may be incurred in respect to the soil, the buildings, trees, fences, or the live stock on the premises.^ It is a general principle, says Chief Justice Savage, that the law considers every thing to be waste, which does a permanent injury to the inheritance. As where the value of the land consists prin- cipally in hemlock timber growing upon it, the act of cutting such timber and peeling the bark, when such cutting is not necessary and proper for. the purpose of cultivation, is waste.^ To open new mines, in land demised, without mention of mines ; to dig and carry away the soil, dig clay, open gravel-pits, and the like, (unless for the repair of the premises,) are instances of voluntary waste, because these things do an injury to the inheritance. ^ So is it also to change the face of the soil by converting arable land into pasture, or pasture land into arable ;* turning garden ground into tillage ; sowing grain in hop grounds ; ploughing up straw- berry beds ; ^ and, in short, in any manner essentially vai-ying the quality of the soil, or the nature of its produce ; for it not only changes the course of husbandry, but the landlord is thereby in danger of losing evidence of the identity of his property.^ § 346. But the offence is said to consist in the first penetration 1 Taunt. 198, and per Beardsley, J., in Cook v. Champlain Company, 1 Denio, E. 104. 1 Co. Lit, 53, b ; 2 Eol. Abr. 816, 1. 15. ^ The People v. Alberty, 11 Wend. E. 162; Jackson v. Brownson, 7 Johns. R. 227; Gardiner v. Dering, 1 Paige, R. 573. ^ Livingston v. Eeynolds, 2 Hill, (N. Y.) R. 157 ; Saunder's Case, 5 E. 12, a; 22 Vin. Abr. 439. * 2 B. & P. 86. 6 "WethereU v. Howell, 1 Camp. 227. 6 Queen's College, Oxford, v. Hallett, 14 East, E. 489 ; 2 Eol. Abr. 815; Hob. 238. Besides, the tenant has no authority to assume the right of judging what may be an improvement to the inheritance ; but must confine himself to the con- ditions of his lease. Per Paige, J., in Kidd v, Dannison, 6 Barb. 13. 19* 222 LAW OF LANDIORD AND TENANT. [CH. IX. and opening of the soil ; and, therefore, it is not waste to continue to dig in mines or pits already open, and Tvhich have become part of the annual profit of the land. And if mines, pits, &c. be expressly named in the lease, so as to show an intention that the lessee shall have the benefit of their produce, it will not be waste for him to open them.^ Or where clay, marl, &c. are taken from the soil for the purpose of repairing the buildings or improving the land, this will not be waste .^ Neither will it be so considered to dig trenches to carry off water, or to cut turf for actual use.^ But any thing tending to the destruction of the subject of the demise, is waste ; as if the lessee cuts down pear, apple, or other fruit trees ; or they are blown down by tempest, and he after- wards roots them up, or cuts down the growing germins, without planting new.* So if he destroys, or suffers the stock of a dove- cote, warren, park, or fish-pond, to be diminished so that there is not such suiScient store left, as he found when he came in.^ And if he voluntarily puts repairs upon the premises, he cannot after- wards displace and remove them without committing waste.^ § 347. If the tenant suffer the land to be overflowed or sur- rounded by water, through his negligence in permitting the em- bankments to fall into decay, he will be chargeable with permissive waste to the soil ; but if the overflow or other injury be caused by a tempest, he will not be answerable for such accident, unless he omit to repair the damage.''' If a house be destroyed by tempest, fire, lightning, or the like, which is the act of providence, it is not waste,^ for actus del nemini faoit injuriam. Yet it becomes so, if the damage done by the tempest was occasioned by the tenant's previous neglect to repair, or if he does not forthwith proceed to repair the premises.^ But if the house be in a ruinous condition 1 Crouch V. Puryear, 1 Rand. E. 258 ; Saundcr's Case, 5 E. 12. 2 Moyle V. Moyle, Owen, 67. » 2 Rol. Abr. 820, 1. 23 ; Co. Lit. 53, b ; Lord Courtown v. Ward, 1 Sch. & Lef. 8. 4 Eol. Abr. 817, 1. 35 ; Co. Lit. 53, a; Cro. Jac. 126. o Co. Lit. 53, a ; 2 Inst. 304. 6 Caldwell v. Enkas, 2 Mill. Cons.; S. C. Eep. 348. r Griffith's Case, Moore, 62 ; Co. Lit. 53, b. s Co. Lit. 53, a. 9 Moore, 62. CH. IX.] OF THE COVENANT TO EEPAIK. 223 when the tenant comes in, and he pulls it down, it is waste, unle_ss he builds it up again.^ And if glass windows (although glazed by the tenant himself) be broken or carried away, it is waste ; for the glass is part of the house, and the tenant must, at his peril, keep the house from wasting. Waste may also be done in respect to animals ; which happens by taking or destroying so many of them as to unstock the dove-cote, warren, park, or fish-pond, in which they were kept ;2 and it is waste if the tenant stop the pigeon-holes so that the pigeons cannot build, or suffer the park paling to be decayed, so that the deer stray away and are lost. ^ § 348. Voluntary waste to buildings occurs not only where they are deliberately pulled down or unroofed, but also where one kind of building is altered into another, eyen though it be thereby improved in value ; as, for instance, to alter a corn-mill into a fulling-mill ; a dwelling-house into a store, or a hall into a stable ; * throwing two rooms into one ; ^ pulling down the house and re- building it upon a greater or less scale than before ; or to convert a brew-house, which let for £120 per annum, into dwelling-houses, which let for £200 per annum ; because of the alteration of the nature of the thing, and of the evidence.^ Besides, it may have the effect of casting an additional obligation on the reversioner, and he may by no means consider it an improvement. Nor does the power of making an alteration, arise out of a mere right of user ; it is, therefore, incompatible with his interest for a tenant to make any alteration, unless he is justified by the express per- mission of his landlord. § 349. Permissive waste to buildings consists in omitting to keep them in tenantable repair ; suffering the timbers to become rotten by neglecting to cover the house ; or suffering the walls to fall into decay for want of plastering ;' or the foundation to be 1 Co. Lit. 53, a. 2 Vavasor's Case, 2 Leon. 222 ; 4 Leon. 240. 8 Moyle V. Moyle, Owen, 66. * Greene v. Cole, 2 Saund. B. 252 ; Co. Lit. 53, a ; 1 Lev. E. 309 ; 1 Mod. K. 94 ; 5 Ves. 689. 6 2 Eol. Abr. 815 ; 22 Viu. Abr. 439 ; London v. Greyme, Cro. Jac. 182. " Bannister v. Saddler, 14 Ves. 526 ; Douglas v. Wiggins, 1 Johns, Ch. E. 435. ' Co. Lit. 53, a; 2 Eol. Abr. 815, 1. 31. 224 LAW OF LANDLORD AND TENANT. [CH. IX. injured by neglecting to turn off a stream of water.^ So, if the house or other erection on the premises is destroyed by fire, through the carelessness or negligence of the tenant, it is waste, and he must rebuild in a convenient time, at his own expense. The statute before adverted to, only guards a tenant from the con- sequences of a misfortune of this kind, in case the casualty has been purely accidental.^ Merely suffering the house to remain unroofed, (provided it was so at the commencement of the lease,) will not be considered waste ; but the tenant must take the con- sequences of any other part thereby becoming ruinous or decayed.^ To permit walls built to exclude water, to remain in such a dilapi- dated condition as to cause the lands to be overflowed and injured, is waste ;* but not if it be suddenly surrounded by the violence of the sea, as by a tempest, without any fault of the tenant. And though the destruction of a house by lightning, tempest, or a pub- lic enemy, is not waste, to suffer it to remain ruined, will be so.^ Its destruction by a mob, is waste.^ § 350. The general property in trees that are timber, is in the owner of the inheritance of the land on which they grow ; that in bushes and underwood, in the tenant.'^ Accordingly, if trees, being timber, are blown down by the wind, or severed by a tres- passer, the lessor shall have them, and not the tenant for life or years, for they are part of the inheritance.^ But, if trees not fit for timber, are cut down by the lessor, the pi'operty in such trees is vested in the tenant ; for the lessor would have no right to them if severed by the act of God, and, therefore, can have no right to them, where they have been severed by his own wrongful act ; and the same rule holds where they have been severed by a stranger.^ What constitutes timber, depends much upon the cus- tom and opinion of the place where it is situated ;^^ but it is said 1 Stickleham v. Hatchman, Owen, 43. 2 Co. Lit. 53, b; 1 Ves. 462. " 2Eol. Abr. 818,1. 1. * Griffith's Ca.se, Moore, 69. 5 Co. Lit. 53, u,. " White V. Hagner, 4 Har. & Johns. R. 373. ' Per Tindal, C. J., in Berriman v. Peacock, 9 Bingh. 386. » Ward V. Andrews, 2 Chit. R. 636 ; Mooers v. Waite, 3 Wend. R. 104. 9 Channon v. Patch, 5 B. & C. 897 1 2 Chit. R. 636. w Co. Lit. 53, a. CH. IX.] OF THE COVENANT TO EEPAIR. 225 that trees must be at least twenty years old to constitute timber, and must also be fit for building purposes.^ Kot only the local custom, but the particular circumstances of the case, must be taken into the account, in determining whether the cutting of any given wood, is waste or not. Thus, to destroy a wood of willows or hazels, is waste ; but cutting willows and hazels in a wood of oak, is only underwood and no waste.^ And, to cut trees that are not timber, but which are growing in defence of, or to orna- ment, the house ; or fruit trees growing in an orchard or garden, will amount to waste. ^ In determining the question, whether trees appertaining to a dwelling-house are ornamental trees or not, it is important to ascertain, whether they have been considered and treated as such by the owner of the premises.* Cutting wil- lows which grow on the bank of a river, by which the bank fell down, and a meadow adjoining was overflowed, was held to be waste. ^ But cutting a ditch from the Mohawk River, and divert- ing it from its channel so as to overflow a swamp covered with timber, by means of which the timber died, was held to be no waste, when it appeared, that a new and better growth of timber had sprung up, which, in the opinion of the witnesses, was worth more than the old timber.^ § 351. A tenant, however, whether for life or for years, may lawfully cut timber trees for the necessary repairs of the house and fences, even though he has agreed to repair at his own charge ; ^ but then it must be for the repair of such buildings as were on the premises when he entered into possession, and not for such as he may have subsequently erected.^ And he is enti- tled to take reasonable estovers, that is wood from the land, for fuel, fences, agricultural erections, and other necessary improve- ments. Nor is it absolutely necessary that such firewood be used on the premises, provided it is taken in good faith for the use of 1 Duke of Chandos, v. Talbot, 2 P. Wms. 606. 2 Bro. Waste, pi. 21. 3 Co. Lit. 53, a, b. * Hawley v. Wolverton, 5 Paige, E. 522. 5 Sir G. Stripling's Case, 22 Vin. Abr. 449, pi. 11. ° Jackson v. Andrew, 18 Johns. R. 431. t Moore, 23 ; Co. Lit. 54, b. 8 Co. Lit. 53, a; 41, b. 226 LAW OP LANDLORD AND TENANT. [CH. IX. the tenant and his servants, in reasonable quantities, and the inhe- ritance is not injured.! If the house be destroyed or injured, by an accidental fire, the tenant may cut timber to rebuild it ; but he cannot cut timber to build a new house or new fences, where none were before.^ It must, moreover, be for repairs which are presently needed, and not for such as are only likely to become necessary ; ^ nor for such as have been occasioned by his own negligence ; for if the tenant^sufifer the buildings to fall into decay, and then cut timber to repair them, he will be guilty of double waste.* And if a lessee is authorized by his lease, to cut wood for fuel or fencing, he must comply substantially with the condi- tions of his lease. He cannot omit for years, to take firewood and fencing timber from the premises, suffering the wood proper for those uses to be destroyed and wasted, and then, by way of compensation or indemnity, enter upon the premises, and take timber and wood to which the lease gives him no right.^ <^ 352. The timber must be absolutely and immediately em- ployed in the repairs for which it was cut ; for if the tenant cut down timber and sell it, and out of the proceeds repair the house,^ or if he sell it and afterwards buy it again, and then use it for repairing, he will, in either case, be guilty of waste, for the selling of the trees is waste.''' It is so, also, if he cut timber for the pur- pose of necessary repairs, but it turns out to be unfit for that purpose, and he then exchanges it for other timber, which was applied to the repairs ; for the tenant must, at his peril, select such trees as are fit for the purpose, and employ them accord- ingly.* But in Massachusetts the court held that it was not waste, in a tenant for life, to cut down timber trees to repair, and sell them to procure boards for the purpose, if that mode of exchange was most beneficial for the estate.^ And whether trees ' Gardiner v. Bering, 1 Paige, E. 573 ; Co. Lit. 41, b. 2 Davey v. Asquith, Hob. 238. = Gorges v. Stanfield, Cro. Eliz. 593. * Paddleford v. Paddleford, 7 Pick. K. 152; Co. Lit. 58, b; 2 Eol. Abr. 822, 1.38; 15 Mass. R 164. 5 Clarke v. Cummings, 5 Barb. R. 340. " Yin. Abr. Waste, (M.) pi. 1, note. 7 Co. Lit. 53, b ; U East, R. 56. 8 Simons v. Norton, 7 Bingh. 640. » Loomis u. "Wilbur, 5 Mass. R. 13. CH. IX.] OF THE COVENANT TO REPAIR. 227 have been cut bona- fide for the purpose of repairing, is always a question for a jury.^ Although a tenant may cut firewood for his own use, he may take none to sell, nor any more than is reasonable ; nor can he cut any as long as there is sufficient dead wood on the premises for his consumption.^ He may, however, cut timber trees that are dead ; and such trees as are neither timber, nor grow in defence of the house .^ But he may go no further than cutting ; for if he grub up trees, hedges, or underwood, he is guilty of waste.* But when thorns, bushes, furze, or the like, are growing in pasture or arable lands, the tenant may lawfully stub them up, for this is good husbandry and not waste.^ § 353. It must be observed, also, that the law of waste accom- modates itself to the varying wants and situations of different countries ; that may not be waste, for example, in an entire wood- land country, which would be so in a cleared one. A clearing of land in a new country would not be a lasting damage to the inhe- ritance, nor a disherison of him in remainder, which is the true definition of waste. It would, on the contrary, be beneficial to him in remainder, so long as a sufficiency of timber was left, and the land cleared bears a proper relative proportion to the whole tract.^ So it has been held, that if the cleared land on the estate was old and worn, and the proportion of woodland such that a prudent farmer would have considered it best to reduce a portion of it to cultivation, thereby to relieve the old land from excess of culture, and thus enhance the value of the estate ; such clearing would not be waste, provided sufficient timber for the permanent use of the estate was left.^ As to woodlands, also, Haywood, J., in a North Carolina case, against a tenant for life, defines waste to be " an unnecessary cutting down and disposing of timber, or 1 Doe dem. Foley v. Wilson, 11 East, 56. 2 Simmons v. Norton, 7 Bingh. 640 ; Cro. Eliz. 604; 7 Bac. Abr. 252. ^ Gage V. Smith, 2 Eol. Abr. 817, 1. 17. ' Cro. Jae. 126. 6 Malverer v. Spinlse, Dyer, 37, a. 6 Findlay u. Smith, 6 Munf. ( Va.) R. 134 ; Crouch v. Puryear, 1 Rand. E. 258 ; , Den V. Kinney, 2 South. E. 552 ; McCracken's Heirs v. McCracken's Ex'rs, 6 Mon- roe, R. 342 ; Hastings v. Crunkleton, 3 Yeates, R. 261. 1 Owen V. Hyde, 6 Yerger, (Tenn.) E. 334 ; Loomis v. Wilbur, 5 Mason, E. 13 ; Parkins v. Coxe, 2 Hayw. E. 339. 228 LAW OF LANDLORD AND TENANT. [CH. IX. destruction thereof, upon woodlands where there is already suffi- cient cleared land for the tenant's cultivation, and over and above what is necessary to be used for fuel, fences, plantation utensils, and the like." ^ But where wild and uncultivated land, wholly covered with wood and timber, is leased, the lessee may fell part of the wood and timber, so as to fit the land for cultivation. He may not, however, cut so much as to injure the inheritance ; but to what extent he may go without committing waste, is a question for a jury to determine in each particular case.^ If he cuts the trees merely for the sake of the profit to be derived from a sale of the timber, and not for the purpose of preparing the land for cultivation, he is clearly guilty of waste. And although he may, from the commencement of his term, gradually clear up the wood- land and prepare it for cultivation, yet he will not be permitted, just before the expiration of his lease, to cut down timber upon that pretext.^ Where land is annexed to a furnace, cutting wood sufficient for the supply of the furnace was held in New Jersey to be no waste ; * while in North Carolina it was held waste to cut down light-wood for tar.^ § 354. When the tenant commits waste, ly felling timber or 1 Ballentine v. Poyner, 2 Hayw. E.. 110; Wilson, v. Smith, 5 Yerg. E. 379, In New York, where fifteen months is allowed for the redemption of land sold under an execution, hefore the creditor is entitled to take possession, the statute declares that certain acts of the occupant shall not amount to waste. Any person entitled to the possession of lands or tenements, sold under execution, may, until the expi- ration of fifteen months from the time of such sale, use and enjoy the same as fol- lows, without being guilty of waste : — 1. He may, in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and for which they were used and applied prior to such sale, doing no permanent injury to the freehold ; 2. If the premises sold were buildings, or any other erections, he may make necessary repairs thereto, but he shall make no alterations in the form or structure thereof; 3. If the premises sold were land, he may use and improve the same in the usual course of husbandry, but he shall not be entitled to any crops growing thereon at the expiration of the said fifteen months ; 4. He may apply any wood or timber on such land to the necessary reparation of any fences, buildings, or erections, which may have been thereon at the time of the sale ; 5. If the land sold is actually occupied by such person, he may take necessary firewood therefrom for tlie use of his family. 2 K. S. 336, ^ 21. 2 Jackson v. Brownson, 7 Johns. E. 227 ; Adams v. Brereton, 3 Har. & J. 124. " Kidd V. Dennison, 6 Barbour, E. 9 ; Livingston v. Eeynolds, 26 Wend. 122 ; S. C. 2 Hill, 157. * Den V. Kinney, 2 South. E. 552. 6 Perkins v. Coxe, 2 Hay. E. 339. CH. IX.] OF THE COVENANT TO KBPAIR. 229 houses, they still remain the property of the person who is entitled to the inheritance ; for the tenant had them as things annexed to the soil, and it would be absurd that when, by his own act and wrong, he severs them from the land, he should gain a greater property in them than he had before.^ And whether they were felled by the tenant or other person, or blown down by a tempest, the lessor is entitled to them, in respect to his general ownership, and because they were his inheritance.^ So also sea-weed, thrown by the sea upon the beach, vests in the owner of the soil, as much as the wood, grass, or any other thing appurtenant to the ownership of the soil ; though, as between landlord and tenant, the latter, doubtless, would be allowed to make use of it, unless it had been expressly reserved by the lease. ^ § 355. Sometimes a clause is inserted in the lease, that the tenant shall have the lands without impeachment of waste ; this, at common law, authorizes him to cut timber, or open new mines, and convert the produce to his own use.* But if the words were, witjiout impeachment of any action of waste, they only gave the tenant a discharge from the action, but not the property in the thing granted.® Equity, however, gives a more limited construc- tion to this clause, and allows the tenant for life those powers only which a prudent tenant in fee would exercise. He cannot, there- fore, piull down or dilapidate houses, destroy pleasure-grounds, or prostrate trees planted for shelter.^ At common law, also, a tenant for life, without impeachment of waste, is liable on his express covenant to repair, notwithstanding such a covenant is inconsistent with his estate ; for where a man expressly covenants to do an act, which he would not otherwise be bound by law to perform, the good of society requires that his contract should be 1 Mooers v. Wait, 3 "Wend. E. 104. 2 Bulkley v. Dolbeare, 7 Conn. R. 232 ; Liford's Case, 11 Co. 48, b; Bewick v. Whitfield, 3 P. Wms. 267 ; 1 Coxe, R. 72 ; Shult v. Barker, 12 Serg. & Eawle, 272 ; Elliott v. Smith, 2 N. Hamp. R. 430. 3 Emaus v. Turnbull, 2 Johns. R. 322. * Pyne v. Dor, 1 Term R. 55 ; Williams v. Williams, 15 Ves. R. 425 ; Co. Lit. 220, a; 11 Co. R. 81, h. 5 Ibid. ; Vane v. Lord Barnard, 1 Salk. 161 ; 22 Vin. Abr. 505. " Vane v. Lord Barnard, 2 Vern. 739 ; 2 Eq. Cas. Abr. tit. Waste, pi. 8 ; 3 Atk. E. 215. ' 20 230 LAW OF LANDLORD AND TENANT. [CH. IS. strictly observed ; and he cannot, in general, be relieved from tbe responsibility he has imposed on himself by his own deliberate act.^ >§> 356. Not only is waste prohibited by law, but it calls upon the tenant, in addition, to cultivate the lands in a husband-like manner, conformably to the usual and reasonable custom of the country.^ This, however, extends only to the usual course of cultivation, and not to any extraordinary mode of agriculture.^ In this, as in other cases, the parties may, of course, stipulate in what manner, and to what extent, the land shall be cultivated ; but unless such stipulation is made, the parties are to be governed by the usual practice and custom of the neighborhood.* A tenant who has agreed to deliver up all the trees standing in an orchard at the time of the lease, reasonable use and wear only excepted, is not prevented from removing trees which are decayed and past bearing, from a part of the orchard which was over-stocked.^ "§. 357. When a tenant is under an express covenant to uphold and repair the premises, he is liable to make good all losses, and must even rebuild in case of casualty by fire or otherwise.^ Being annexed to the demised property, and forming part of it, this covenant runs with the land, and binds an assignee, although not named.'' It is also divisible, charging an assignee of part only of the premises ; ^ and the general covenant extends as well to buildings erected by the tenant, as to those originally demised.^ If a lessee who has erected fixtures, for the purpose of trade, upon the demised premises, afterwards takes a new lease, to commence at the expiration of his former one, which new lease contains a covenant to repair, he will be bound to repair those fixtures unless 1 Chesterfield v. Bolton, 2 Conn. R. 626 ; Barker v. Harold, 1 Saund. E. 47. ' Powley V. Walker, 5 T. R. 373. 3 Brown v. Crump, 1 Marsh. 567 ; S. C. 6 Taunt. 300. * Doe dem. Jones v. Crouch, 2 Camp. 449. 5 Legh V. Hewitt, 4 East, 15 ; Dougl. 201 ; 2 B. & A. 746. » Cline V. Black, 4 McCord, E. 431 ; Ross v. Overton, 3 Coll. E. 309 ; Pym v. Blackburn, 3 Ves. R. 38; 4 Camp. 265 ; Beach v. Crain, 2 Comst. R. 86. ' Spencer's Case, 5 Co. R. 16 ; 5 Co. 24, a; Keeling v. Moore, 12 Mod. R. 371. 8 Congham v. King, Cro. Car. 221. " Dowse V. Cole, 2 Vent. 126 ; 3 Lev. 46 ; Skin. 121. OH. IX.] OF THE COVENANT TO REPAIR. 231 strong circumstances exist to show that they were not intended to pass, under the general words of the second demise ; though it is doubtful whether any circumstances, dehors the deed, can be alleged to show that they were not intended to pass.^ If he cove- nants to keep the premises in repair, and leave them in the same state as he found them, he is merely required to use his best endeavors to keep them in the same tenantable repair in which he found them, for natural .and unavoidable decay is no breach of this covenant ; but if he covenants to repair generally, this will impose upon him a liability to uphold the buildings, without regard to accidents or the necessary decay of the old materials.^ Where he covenants to surrender the premises at the expiration of the lease, in the same condition they are in at the date of the lease, natural wear and tear excepted, but without any covenant to repair or rebuild, he is not bound, in case the buildings are destroyed by fire during the continuance of the term, to put up new buildings in the place of those destroyed.^ § 358. Under a general covenant to repair, the tenant is to take care that the tenement does not suffer more than the usual operations of time and nature will effect ; but he is bound to go no further. He is only to keep an old house as an old house ; he is not obliged to put in new floors, or the like, but merely to repair the old ones, although a new floor might be the moi-e sub- stantial way of making the repair.* But under a covenant to substantially repair or uphold the house, the tenant is bound to keep up the inside painting.^ Breaking glass has been held to be a breach of this covenant, so has the leaving a pavement out of repair ; for such things are within the intention of the covenant, and belong to the building.^ Upon the like principle, it has been determined that carrying away the locks and keys of a cupboard, 1 Thrasher v. Company, &c. of London Water Works, 2 Bam. & Cress. 608; 4 Dow. & Ry. 62. 2 Harris v. Goslin, 3 Harr. E. 338 ; Phillips v. Stephens, 16 Mass. K. 238 ; Shep Touch. 169. 3 Warner v. Hitchins, 5 Barh. R. 666. 4 Per Tindall, C. J., in Harris v. Jones, 1 Mood. & E. 173 ; Ibid. 334 ; Stanley V. Twogood, 3 Bingh. N. C. 4 ; 7 C. & P. 129. 5 Mark v. Noyes, 1 Car. & Pay. 265. s Pyot V. Lady St. John, Cro. Car. 329 ; 2 Bulst. 102. 232 LAW OF LANDLORD AND TENANT. [CH. IX. or its shelves, will constitute a breach ; or breaking the wall of a house, for the purpose of making a doorway into the adjoining house.i So where the plaintiff granted to the defendant a right of way over his land, and covenanted to erect a gate at the ter- minus, the defendant, on his part, covenanting to make all the necessary repairs to said gate ; it was held that the defendant was bound to replace the gate, the same having been removed by some unknown person.^ § 859. The question in all such cases now is, whether the pre- mises have been kept in substantial repair, as opposed toy claims for fancied injuries ; such as a crack in a pane of glass, or the like. And, with a view, to a determination of this question, the jury may inquire, whether the premises were new or old at the time of the demise, and be regulated in their verdict accordingly.^ If, however, a lessee covenants to support and maintain the brick walls belonging to the premises, and he pulls down a brick wall which divides a front court-yard from another court at the side of the house, it will be a breach of the covenant.* But an enlarge- ment of windows, opening external doors, and taking down parti- tions, is not a breach of a covenant to repair and keep in repair a dwelling-house, with all buildings, improvements, and additions, I set up or made by the lessee.^ Nor is a tenant bound under the covenant to repair, to be at the expense of renewing the work in an improved or more durable manner than before.^ § 360. In general, a lessee will not be excused by an act of God, from the performance of any express covenant, he has entered into ; but if he covenants to keep the premises in the same state in which they were when he took them, and trees are blown down, this covenant is not thereby broken, for it has now, by the act of God, become impossible to keep this part of the covenant.^ But the case is different if he cut the trees himself, 1 Vickery v. Jackson, 2 Stark. R. 293. ^ Beach v. Grain, 2 Comst. R. 86. ^ Stanley v. Twogood, supra; Burdett v. Withers, 2 Nev. & P. 122. * Doe dem. "Wetherell v. Bird, 6 C. & P. 195. 6 Doe dem. Dalton v. Jones, 1 Ner. & M. 6; 4 B. & Ad. 126. 8 Soward v. Leggatt, 7 C. & P. 612. 7 Main's Case, 5 Co. E. 21, a; Shep. Touch. 173. CH. IX.] OF THE COVENANT TO KEPAIK. 233 for he then breaks the covenant by his own act.( There is a differ- ence, also, with respect to buildings, for whether these be destroyed by the act of God, by negligence, or design, the covenant will still remain binding, and the tenant will be guilty of a breach of the covenant, by failing to restore them, for thi^ is clearly within bis power.i ) If he undertakes to keep the house in as good repair as when he took it, fair wear and tear excepted, he is not entitled to quit upon its becoming uninhabitable for want of repair during the term, and the landlord is under no implied obligation to do any repairs in such case.^ Nor will the fact that the act of waste was committed by a stranger, form any excuse for the tenant, the law in such case gives the tenant a remedy over, but makes him responsible in the first instance. As where, a lessee for years covenanted that the buildings which he should erect should, at the expiration of the term, revert to the lessor "without damages of any kind, except the natural wear of the same," and a building so erected was destroyed by the negligent acts of a third party ; it was held to be waste, for which the tenant was responsible to the lessor, and that the lessee or his assignee might recover in an action against the party guilty of the negligence, the value of the building.* § 361. When a man covenants to keep buildings in repair dur- ing the term, and at the expiration thereof to yield them tip in like condition, and he pulls them down, or suffers them to decay, or omits to make necessary repairs, he is immediately guilty of a breach of this covenant, and an action may be maintained against him by the landlord, before the term has expired.* If the cove- nant had been merely to leave the premises in good repair, it would have been otherwise, for there could have been no breach during his occupation.^ And if he covenants to repair and leave them in as good state as he found them, and then pulls them down, he is not guilty of a breach of the covenant, for he may rebuild them before he leaves ; and, therefore no action will lie 1 Brecon Company v. Pritchard, 6 Term E. 750; Style, 162. 2 Arden v. PuUen, 10 M. & S. 8 Cook V. The Champlain Trans. Co. 1 Denio, R. 91 ; 4 Kent, Com. 77. * Luxmore v. Eobson, 1 B. & A. 585 ; Shep. Touch. 173. 6 Shieffelin v. Carpenter, 15 Wend. E. 409. 234 LAW OF LANDLOED AND TENANT. [CH. IX. against him, until the end of the term.^ A covenant to repair forthwith, must receive a reasonable construction, and is not limited to any specific time.^ If, therefore, a man covenants to keep a house in repair, and it becomes ruinous by accident, the covenant -will not become broken till after a convenient time for its repair has elapsed. And if he engage to repair it before a par- ticular day, and it be rendered impossible, by the act of God, to make the repairs by such day, there is no breach of the covenant, if he repair it as soon as possible thereafter ; but such repairs must be made during the term, for, if the tenant enters for that purpose after the expiration of the term, he is a trespasser.^ Where there was a lease for a year of a meadow, bounded on one side by a river, and the lessee covenanted to sustain and repair the banks, to prevent the water from overflowing the meadow, upon pain of forfeiture of a sum of money ; and afterwards, by a sudden and violent flood, the banks were destroyed, the lessee was excused from the penalty, because it was the act of God, which cannot be resisted ; but he was held bound to repair the banks in a convenient time, because of his covenant.* § 362. Where a lease contains a general covenant to keep the premises in repair, with a clause of reentry, for a breach of cove- nant, and a further covenant that the tenant shall, within a cer- tain time from notice, being served upon him by the landlord, repair all defects specified by the notice, the first covenant will not, in general, be held to be restrained by the latter.^ And it has been held that a covenant by the lessee to leave the premises in repair, and a covenant that the lessor might direct the lessee to complete the repairs, by giving six months notice in writing, were distinct and separate covenants, and that the former was not quali- 1 Perry v. Brown, 1 B. & P. 403. The mere removal and sale by a tenant dur- ing the term, of fixtures, which he does not immediately replace, but which can be replaced before the end of the term, is not in itself a breach of the covenant to repair, and uphold the premises, and deliver them up at the end of the term with all things affixed thereto. Doe dem. Burrell v. Davis, in English Court of Com- mon Pleas, January 15, 1851. 2 Doe dem. Pitman v. Sutton, 9 Car. & P. 706. 3 Shep. Touch. 173 ; Corapton v. Allen, Style, 162. * Dyer, 33, a; 2 Saund. E. 420, n. (2). 5 Eoe dem. Goatly v. Paine, 2 Camp. 520; 4 B. & C. 606 ; 5 Ad. & El. 277. CH. IX.] OF THE COVENANT TO REPAIR. 235 fied by the latter.^ But where a lessee covenanted to repair the premises at all times, as often as need should require, and, at furthest, within three months after notice, this was held to be one entire covenant, the former part of which was qualified by the latter.^ A tenant holding over after the expiration of his term, impliedly holds subject to all the covenants in the lease which are applicable to his new situation ; and, therefore, if after the expira- tion of a written lease, containing a covenant by the lessee to keep the premises in repair, he verbally agrees to continue tenant, pay- ing an additional rent, nothing more being expressed between the parties respecting the terms of the new tenancy, and the premises afterwards become ruinous by accidental fire, he is bound to repair them. And a mere advance in the amount of rent to be paid makes no difference, for the advanced rent incorporates the old terms with the new contract, the parties still being supposed in other respects to have had reference to the old lease ; and there is an implied assumpsit raised by the continued holding, though an action would not lie on the covenant.^ § 363. The same principle applies to a void lease, and the tenant is still bound by a covenant to repair, although the agreement under which he holds is void, or contrary to the statute of frauds. Thus, where a lease was granted by a tenant for life under a power, containing a covenant to repair, but not made in accord- ance with the power, and the lease was assigned to the defendant, who, after the death of the tenant for life, when the lease would determine, continued to pay the rent to the remainder-man, for a short period, but taking the improved rent during the residue of the term. The premises being left out of repair, the landlord brought an action for damages against such assignee, on an implied assumpsit to repair ; and it was held he was entitled to recover up to the end of the term mentioned in the- lease, on the ground that the tenant was liable to all the stipulations contained in the lease in the same way as a tenant is who holds over after the determination of th^e lease. But if a breach of the covenant 1 Wood V. Day, 7 Taunt. 646; 1 B. Moore, 389. 2 Horsfall v. Testar, 1 Moore, 89 ; 7 Taunt. 385. ' Digby V. Atkinson, 4 Camp. R, 275 ; Kimpton v. Eve, 2 Ves. & B. 353 ; Bmd- nell V. Roberts, 2 Wils. 143. 236 LAW OF LANDLOBD AND TENANT. [CH. IX. to repair takes place during the continuance of the lease, persona claiming under the lessee, but coming into possession after the determination of the lease, will not be liable on an implied promise to restore the premises to the same state in which they were at the commencement of the original lease.^ § 364. Under a general covenant to repair, the lessee's liability is not confined to cases of ordinary and gradual decay, but ex- tends to injuries done to the property by fire, although accidental ; and even if the premises are entirely consumed, he is still bound to repair within a reasonable time.^ And the principle applies to all damages occasioned by a public enemy, or by a mob, flood, or tempest.^ For this reason, and in order to afford some protection to the tenant, it is customary to introduce into the covenant to repair, an exception against accidents by fire, tempest, or light- ning. As an exception, however, to the general rule, it has been held in Pennsylvania, that a tenant was not liable, even under his covenant, for damage done by the British . troops while in Phila- delphia, during the war of the Revolution.* § 865. An equitable assignee is liable in equity to the lessee to repair damages occurring during the occupation of the former.^ So an assignee by way of mortgage, is equally liable, though he never takes possession.^ Until recently, a mere depositary of a lease by way of mortgage, whether he had entered into possession of the premises or not, was compelled to take an actual assign- ment, and so clothe himself with the legal estate and its conse- quent liabilities ;^ but the important consequences of this doctrine, 1 Beal V. Saunders, 3 Bingh. 856 ; N. S. Johnson v. Hereford Church-wardens, 6 Nev. & Man. 106 j 4 Ad. & El. 520 ; 5 Scott, 58. 2 Bullock V. Dommitt, 6 Term E. 650; Pym v. Blackburn, 3 Ves. 38; "Walton V. Waterhouse, 2 Saund. B. 420, n. (2) ; Chesterfield v. Bolton, Com. 627 ; 2 Chit. 608. 2 Paradine v. Jane, Aleyn, 26 ; 6 Term E. ; Phillips v. Steven, 16 Mass. E. 238 ; Bohannons v. Lewis, 3 Monroe, 370. * Pollard V. Shaffer, 1 Dall. E. 210. The soundness of this case is questioned. Per Sill, J. in Hitchins v. Warner, 5 Barb. E. 671. 5 Close V. Wilberforce, 1 Bear. 112; 3 Ibid. 373. 6 Pilkington v. Shaler, 2 Vern. E. 374 ; S. C. Eq. Ca. Ah. 47. ' Lucas V. Commerford, 1 Yes. Jr. 235; S. C 3Bro. C. C 166, cited 7 Sim. E. 149. CH. IX.] OP THE COVENANT TO EEPAIE. 237 particularly to tbe mercantile community, who are in the habit of taking deposits of leases as securities for loans, caused the ques- tion to be reviewed, when it was determined, that the lessor has no equity to compel the depositary to take an assignment of the lease, or the depositor to assign it.^ Nor will the court compel an equitable assignee, at the suit of the lessor, to discover whether the lease has been assigned to him for the purpose of forcing him to perform the covenants embraced therein.^ § 366. Where there is, besides a covenant to repair, a cove- nant to insure for a certain sum, and the premises are burned, the lessee's liability to rebuild is not limited to the amount for which he agreed to insure.^ Nor has the tenant any equity to compel his landlord to expend money received from an insurance company in rebuilding the demised premises, on their being burnt down, or to restrain the landlord from suing for the rent, until after the premises shall have been rebuilt.* An eviction by elder title, also, absolves the lessee from a covenant to repair, for the land being gone, the covenant is annulled.^ But an eviction out of part of the thing demised, is no defence to an action for a breach of this covenant, unless it be shown, that the lessee has been evicted from that part of the land, where the repairs were to be done, and so prevented from fulfilling his covenant.*' The general covenant of the lessee to repair, extends to all buildings erected during the term, as well as to the buildings demised ; if, therefore, upon a demise of three houses with such a covenant, the lessee builds a fourth, he will be bound to repair this also.^ § 367. As hetween co-tenants, both equally bound to repair, or support a partition wall, or fence, the rule is, that either party, if the other refuses to join him, may, after giving him reasonable notice, (in New York it is a month's notice,) proceed to do what is necessary to be done, and charge his co-tenant with his propor- 1 Moores v. Choat, 8 Sim. 508 ; 1 Keen, 435. 2 Sparks v. Smith, 2 Vera. 275 ; S. C. 1 Eq. Ca. Ab. 47. ^ Digby V. Atkinson, 4 Camp. E. 275. * Leeds v. Cheetham, 1 Simons, R. 146. * Andrews v. Needham, Noy. 75 ; Cro. Eliz. 656. 6 Carrel v. Read, Cro. Eliz. 374 ; Snelling v. Stagg, Bull. N. P. 165. 7 Douse V. Earle, 3 Lev. 264 ; S. C. 2 Vent. 126. 238 LAW OF LANDLORD AND TENANT. [CH. IX. -tion of the expense. And, if there had once been a division-fence between them, which one party has improperly removed, without giving three months' notice to the other, of his intention to let the - land lie open as required by the statute, he is liable not only for his proportion of the expense of making a new fence, but also to all damages sustained by the other party, in consequence of such removal.^ But as between a tenant and his landlord, it has been decided, that if a tenant under a covenant to repair, pull down a party wall, (being in a ruinous condition,) and rebuild it at the joint expense of himself and the occupant of the adjoining house, to whom he has given the notice required by statute, in his land- lord's name, but without his authority, he cannot maintain an action against his landlord for a moiety of the expense of rebuild- ing such party wall.^ The estate of a tenant at will, being so uncertain, the law imposes no obligation upon him for dilapidar tions ; the landlord has, therefore, no remedy against him except for wilful waste, in which case, as we have seen, he forfeits his interest in the estate. He is not bound to repair, and takes no ^charge upon him, but to occupy and pay rent.^ § 368. The usual mode of showing the damages sustained by the breach of the covenant to repair, where the term is at an end, is to prove, by surveyors or builders, the sum it would take to put the premises into that state of repair in which the defendant ought to have kept them, according to the terms of his covenant.* And the jury, in such a case, may allow the landlord not only the actual expense of the repairs, but also some compensation for the loss_of^^e use of the premises, whilst they were undergoing repaii\°^uFwK^e""fSe""tenancyis still subsisting, and there is yet a -«Jnsiderable portion of the term remaining, the damages must be estimated, not by considering what it would cost to put the premises into proper repair, but also what damage the present state, of want of repair, is to the reversion ; the former could not be a correct criterion, because the landlord, if he recovered as 1 3 Kent, Com. 352 ; Eichavdson v. MoDougal, 11 Wend. R. 46. ^ Pizey V. Rogers, 1 Ry. & Mo. 357. ' Countess of Salop v. Crompton, Cro. Eliz. 777, 748 ; Co. Lit. 71. * Penley v. Watts, 7 M. & W. 601. = Wood V. Pope, 1 Ring. N. P. 467 ; S. C 6 C. & P. 782. CH. IX.] OP THE COVENANT TO PAY RENT. 239 damages the sum necessary to put the premises in repair, is not bound to lay out any portion of it in repairing them.^ And where the lessor was bound by covenant to repair " the external parts of a demised house," which was damaged in consequence of the house adjoining to it being pulled down and the party wall giving way, the jury gave the plaintiff, as damages, not only the sum he laid out in building the party wall, the value of certain damage done by the wall giving way, the cost of painting and papering, rendered necessary by the rebuildiag of the wall, cost of replacing fixtures, and the architect's charges, but also the rent he paid for other premises whilst the wall was rebuilding, the costs of alter- ations, necessary to enable him to carry on his business in these latter premises, and the cost of restoring those premises to their original state after the wall was rebuilt. The court, however, held that the plaintiff was not entitled to these three latter items of damage ; because, if the defendant had rebuilt the wall, he would not have been bound to find other premises for the plaintiff during the time the wall was rebuilding.^ Section II. Of the Covenant to Pay Rent. § 369. Rent is a certain profit, either in money, provisions, chattels, or labor, issuing yearly out of lands and tenements, in return for their use. Some of its properties, at common law, are a certainty, or the power of being reduced to a certainty, by either party ; and that it issue yearly ; for although it need not issue out of each successive year, yet, as it is to be produced out of the profits of lands and tenements, as a compensation for their enjoy- ment, it must be renewed yearly, because such profits arise and are renewed annually. , It must, also, issue out of the thing demised, and not be part of the thing itself; and must, neces- sarily, issue out of the lands and tenements corporeal merely, for out of such only can the lessor distrain.^ 1 Trustees, &c. v. Rowlands, 9 Car. & P. 734. ^ Green v. Bales, 11 Law J. 63. s Co. Lit. 47, a; 142, a. 240 LAW OF LANDLORD AND TENANT. [CH. IX. § 370. There are, at common law, three kinds of rent : rent- service, rent-charge, and rent-seek. Rent-service was so called, because it had some corporal service incident to it ; as if a tenant held his lands by fealty and ten shillings rent, or by the service of ploughing the lord's land and five shillings rent ; these pecuniary rents being connected with personal services were, therefore, called rent-service, and were always annexed to and connected with a reversionary estate remaining in the grantor. A rent- charge is where the owner ofiithe rent has no future interest in the land, but, by his grant, reserves to himself a certain rent, with a clause authorizing its collection by distress. "While a rent- seek, or barren rent, is nothing more than a rent reserved by deed, but without any clause of distress, and which can only be collected by the ordinary action of debt.^ We have, also, one other species of rent, called a fee-farm rent, which is, in fact, a rent-charge, issuing out of an estate which has been granted in fee. Of this description are the manor leases in New York. In effect, it is a letting of lands to farm in fee-simple, instead of the usual methods forJife or years ; the rent being created by the same deed with which the fee is granted.^ The difference between these various species of rent, so far, at least, as regards the remedy for their recovery, is now abolished in England, as it was in New York, even previous to the abolition of distress for rent. The sta- tutes of both countries authorized all persons to distrain for any certain services, oj certain rent, reserved out of any lands or tene- ments, which shall not be paid or rendered when due.^ § 371. Besides the reservation of rent in the demise, a special covenant for its payment is usually inserted ; but if there is no agreement between the parties, the law will imply a promise on the part of the tenant to pay a landlord, for his permission to occupy the premises, so much as' they are reasonably worth ; an ■■ People V. Haskina, 7 Wend. 463 ; Cuthbert v. Kuhn, 3 Whart. 365 ; Cornell V. Lamb, 2 Cow. R. 652. 2 The popular objections to many of these leases have been fully examined, and the anti-rent movement in New Tork freely discussed, by the Hon. D. D. Barnard, in the December number of the American Review for 1845. It is a calm, earnest and able review of the whole subject, and had an extensive influence in quieting the public agitation which then pervaded the State of New York. s 4 Geo. II. c. 28; 1 R. S. 747, § 18. CH. IX.] OF THE COVENANT TO PAY RENT. 241 obligation -which lasts as long as he continues to hold, without obstruction on the part of the landlord. The lessee, during his occupation, or an assignee, while his enjoyment lasts, may, with- out any covenant, be compelled to pay rent ; yet, in the absence of this covenant, he may, by assigning over, discharge himself of all future responsibility.^ And as the premises may be transfer- red to a beggar,^ an insolvent,^ or person leaving the country, (provided the assignment be executed before his departure,) the lessor would, to a certain extent, lose his security for rent,* and the express covenant, therefore, possesses an obvious advantage over the implied one. For these reasons, a covenant to pay rent is generally contained in every indenture of lease. And as the liability of a lessee on this covenant will not be in any manner impaired or affected by his act of assigning over the lease, but remains valid against him and his executors, (having assets,) until the end of the lease ; ^ this covenant, in the event of a tenant's alienation, affords the landlord a double claim for the payment of his rent ; the assignee being chargeable in consequence of his privity of estate, and the original lessee still continuing bound in respect to his contract. ^ § 372. It is a covenant running with the land, binding on an assignee without his being specially named, and, in the case of an indenture executed by the lessee, will arise upon the ordinary words of reservation, yielding and paying.^ It is held, -however, that the words, " subject to payment of the rent reserved, &c.," in an assignment of a lease, do not amount to a covenant, and give no right of action against the assignee, for they are words of qualification and not of contract.'' When the relation of landlord and tenant has been once established, the tenant cannot resist a demand of rent, unless he shows that he was evicted, or otherwise 1 1 Mod. R. 71 ; Holt, 73 ; 12 Mod. R. 23 ; 1 Vem. 165 ; 1 V. & B. 11. 2 T?,ylor V. Shum, 1 Bos. & P. 21. 8 Onslow V. Come, 2 Mod. R. 330. * Dalston v. Reeve, Ld. Ray. 77 ; Webb v. Russell, 3 Term R. 402 ; Iggulden V. May, 9 Ves. R. 330. 5 Pitcher v. Tovey, 1 Salk. R. 81 ; Buekland v. Hall, 8 Ves. R. 95. « Holford V. Hatch, 1 Dougl. 183 ; Vyvyan v. Arthur, 1 B. & Cress. 416. ' 'Wolveridge v. Steward in Er. 3 Moore & Scott, 56 ; 3 Tyr. 637 ; 1 Cromp. & Mees. 644. 21 242 LAW OF LANDLORD AND TENANT. [CH. IX. legally entitled to quit the possession, and has done so in an unqualified manner; or that the landlord has accepted another person as tenant in his stead.^ And no accident to the demised property, or misfortune to the lessee, will relieve him from his express covenant, so long as this relation continues. In an ancient case, which occurred during the civil wars of England, the tenant objected, as a reason why he should not pay rent, that Prince Rupert, an alien born, with a hostile army, had driven him out of possession of the' premises ; but the court determined that, though the whole army had been alien enemies, he was still bound to pay his rent, because he had expressly covenanted.^ So if the land be surrounded or gained upon by the sea, or in any other way rendered useless, still, as the lessee is to have the advantage of all profits, he must run the hazard of casual losses, and will be liable for the whole rent.^ And though the premises are entirely destroyed by unavoidable accidents of fire, flood, or tempest,* the tenant is still liable to pay rent under his express covenant, not- withstanding their ruinous condition.^ § 373. Contrac" implied by operation of law admit of a more liberal construction, and may be moulded according to the dictates of reason and justice ; but express covenants are to be construed 1 Ward V. Mason, 9 Price, E. 294. ' Paradine v. Jane, Aleyn, 26 ; "Wagner v. Wiite, 4 Har. & J. 564. It has been held, however, in South Carolina, that where a tenant has been dispossessed by an enemy, he ought to pay rent only for the time he peaceably enjoyed, and not for the time he was prevented by the casualties of war. Bayley v. Lawrence, 1 Bay, E. 499. 8 Dyer, 56, a; Aleyn, 28 ; 1 Eol. Abr. 236, 1. 5. ' Hallett V. Wylie, 3 Johns. E. 44 ; Fowler v. Bott, 6- Mass, E. 63 ; Xd. Eay. 1477; 1 Term E. 310; 3 Swanst. E. 685. In Eipley v. "Wightman, 4 McCord, 447, it was held, that where a hurricane rendered a house untenantable, this was a good defence to an action for rent. But this, as well as the South Carolina case, are evidently exceptions to the general rule of law, that when a man takes a charge upon himself, by his own special agreement, he is still liable in damages resulting from a non-performance, although its performance should become impossible. It is of course otherwise, where the law creates a duty, or implies a liability, for there the party is discharged from the obligation, if performance becomes impossible ; nor would he, in such case, be bound to pay rent, if he had no beneficial enjoyment of the premises. 5 Monk V. Cooper, Str. 763 ; 18 Yes. 115 ; Hare v. Graves, Anstr. 687 ; Izon v. Gorton, 5 Bing. N. C. 501 ; Arden v. Pullen, 10 M. & W. 321 ; Harrison v. Lord North, 1 Ch. Cas. 84 ; Dyer, 56, a. CH. IX.] OF THE COVENANT TO PAT EBNT. 243 strictly, and the person contracting not only assumes to do the thing stipulated, but takes on himself all risk of performance.^ An exception of casualties by fire, introduced into the covenant to repair, will not change the case, since the exception has no relation to the covenant to pay rent.^ According to the strictness of the ancient law a tenant could not, in a suit for rent, set up in defence that the premises had become uninhabitable, or that the landlord had broken his covenant to repair ; because the am«unt of damages sustained by the tenant being uncertain, could only be made the subject of a cross action, and was, therefore, incapable of being set off against the demand for rent, which is a certain fixed amount.^ But this doctrine has been recently questioned in England,* and is entirely repudiated in some of the United States. Thus, in Pennsylvania it is held, that covenants for rents are like other covenants ; and, where the plaintiff has not complied with his precedent condition, he cannot compel payment of its conside- ration.^ And in New York it was said, by Chief Justice Nelson, " That it was not to be denied, but that if the tenant, in such a case, had been entitled to damages for not repairing, they might have been set up, by way of reducing or extinguishing the rent." 6 § 374. It may now be considered a well-settled principle, that a defendant need not resort to a cross action on the plaintiff's contract of indemnity in any case, but may set up his damages, by way of extinguishing or reducing the plaintiff's demand. When the demands of both parties issue out of the same contract or transaction, the defendant is allowed to recoupe, although the damages on both sides ai;e unHquidated ; but he can set off only where the demands of both parties are liquidated, or capable of being ascertained by calculation. It was formerly supposed that there could only be a recoupment where some fraud was imput- able to the plaintiff, in relation to the contract on which the action 1 Warren v. Eowen, 3 Conn.- E. 381 ; Bohannon v. Lewis, 3 Monroe, R. 372. 2 Belfour v. "Weston, 1 Term E. 310 ; Pindar v. Ainsley, Ibid. 212 - 710. " Watts ». Coffin, U Johns. E. 495 ; Weigall v. Waters, 6 Term E. 488 ; Tat- tle V. Tompkins, 2 Wend. E. 407. * Eyan & M. 268 ; 7 D. & E. 117 ; 1 M. & E. 112. s Fairman v. Huek, 5 Watts, 517. Westlake v. Degraw, 25 Wend. E. 672 ; Reab v. McAlister, 8 Wend. E. 109. 244 LAW OF LANDLORD AND TENANT. [CH. IX. was founded ; but the doctrine is now applied to cases where the defendant imputes no fraud, and only complains that there has been a breach of contract on the part of the plaintiff. And for the purpose of avoiding -circuity, or multiplicity of action, and doing complete justice to both parties, they are allowed, — and compelled if the defendant so elect, — to adjust all their claims growing out of the same contract in one action. .It is certainly just,* says the learned Chief Justice Bronson, that among con- flictory claims, arising out of the same transaction, one should compensate the other, and only the balance be recovered. The defendant, however, has his election, whether he will set up his claim in answer to the plaintiff's demand, or resort to a cross action. But whatever may be the amount of his damages, he can only set themi up, if uncertain, by way of abatement, either in whole or in part, of the plaintiff's demand ; he cannot, as in case of a set-off, go beyond that, and have a balance cer- tified in his favor. If, therefore, the plaintiff sues on one part of a contract, consisting of mutual stipulations, made at the same time, and relating to the same subject-matter, the plaintiff may recoupe his damages arising from the breach of another part; and this, whether the different parts be contained in one instru- ment or in several, or even where one part is in writing and the other verbal.^ § 375. That a tenant is bound to continue the payment of rent, after the destruction of the tenement by fire or other external violence, and has no relief against an express covenant to pay rent, is a proposition generally true, in every case where he has not protected himself by a saving clause in the lease ; or the les- sor has not covenanted to rebuild, and failed to perform his cove- nant.^ Mr. Chancellor Walworth concludes an elegant and learned opinion, in a case which arose in New York, by stating it to be Well settled in that state, that a lessee has no relief under those circumstances, either at law or in equity. In this case, indeed, there was an agreement between the lessee and the agent of the • Bettennau v. Pierce, 3 Hill, (N. Y.) R. 171 ; Ives v. "Van Epps, 22 Wend. 155 ; Van Epps v. Harrison, 5 Hill, 63; Barber v. Hose, Ibid. 76 ; Whitbeck v. Skinner, 7 Ibid. 53 ; Nichols v. Dusenbury, 2 Comst. E. 283. 2 Gates V. Green, 4 Paige, E. 355 ; HoUzapffel v. Baker, 18 Ves. E. 415 ; 4 Taunt. E. 45; 1 Sim. 146; Lamott v. Stenet, 1 Har. & Johns. 42; Philips v. Stevens, 16 Mass. E. 240. CH. IX.] OF THE COVENANT TO PAY RENT. 245 lessor, that the rent should cease if the building should be casually destroyed, and that a stipulation to that effect should be inserted in the lease ; but this stipulation was inadvertently omitted by the negligence of the person employed to prepare the lease, and the premises were afterwards accidentally burned ; the lessor was perpetually enjoined from prosecuting any suit, or proceeding for the recovery of rent which accrued subsequent to the destruction of the premises ; and the lease itself was ordered to be given up and cancelled.^ § 376. Every tenant, therefore, should provide in his lease for a suspension of the rent, during such time as the premises remain uninhabitable by reason of accidental fire, or other casualty. But 1 Gates V, Green, supra. In this case, the learned Chancellor considers it to be a principle of natural law, that a tenant who rents a house, or other tenement, for a short period, and with a view to no other benefit except that which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used. By the law of Scotland, upon the hire of property, a loss or injury to such property which is not caused by the fdult or negligence of the hirer, falls on the owner ; and the lessee is entitled to an abate- ment of the rent, proportioned to any partial destruction of the subject. The Napoleon Code, art. 1722, also declares, that if the thing hired is destroyed by fortuitous events, daring the continuance of the lease, the contract of hiring is rescinded ; but if it be only destroyed in part, the lessee may, according to circum- stances, demand either a diminution of the price, or the rescinding of the lease itself. The same provision, substantially, is found in the Code of 'Louisiana, art. 2667. The learned commentator on the law of nature and of nations, (Puft'endorf,) also considers this a plain principle of natural law ; and he refers to a law of Sesostris, an Egyptian king, that if the violence of the river should wash away a part of the land, the tenant should be proportionably abated in his rent. The same principle has found its way as far north as ISlpwfoundland ; where, by the custom of that country, the tenant of a building may surrender his lease, and be excused from the further payment of rent, in case of a casual destruction of the building by fire. And Eutherford, in his lectures on natural law, makes a very sensible dis- tinction between a casualty which destroys the value of the use of the property, which loss naturally falls on the lessee, and one which destroys the property itself, of which the lessee has hired the use ; in which latter case he holds, that the lessee is excused from the payment of further rent. Many cases in the reports, show that some of the English Chancellors struggled hard to introduce this principle of natural law into the administration of justice in their courts. Brown w. Quilter, Amb. 619 ; Steel v. Wright, 1 Term K. 708. A contrary principle, however, iinally prevailed in the Equity Courts of England, as well as in the courts of law ; and it must now be considered as settled law, in this State, that a lessee of pre- mises which are burned, has no relief against an express covenant to pay the rent, either at law or in equity ; unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. 21* 246 LAW OP LANDLORD AND TENANT. [CH. i::^. a provision in a lease, that the rent shall cease if the premises become uninhabitable by fire or other casualty, does not extend to the case of a building in the city of New York which becomes untenantable in consequence of the greater portion of it being taken down, to conform to an order of the corporation for the widening of the street on which it is situated.^ At common law, also, (the principle of the cases before mentioned, however, im- plies that a contrary doctrine prevails in New York,) a lessee, who is under a covenant to pay rent and repair, with an express exception on his part, of all casualties by fire or tempest, is liable to pay rent upon his covenant, although the premises are burnt down and not rebuilt by the lessor, after he is notified of the acci- dent and required to rebuild ; for, whatever was the default of the lessor in not rebuilding, he is liable for damages to the lessee ; and, although it may be a hard case, yet the lessee must, at all events, perform his covenant, by which he was expressly bound to pay rent during the term.^ § 377. But it is to be observed, that all such cases depend upon the express agreement of the parties ; the general rule of law being, that when the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and he has no remedy over against some other person, the law will excuse him ; but when a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, not- withstanding any accident or inevitable necessity; because he might have provided against it by his own contract, and did not think proper to do so.^ And, perhaps, there, is as much equity, that the loss of rent should, in such case, fall upon the lessee, as upon the lessor, since the tenant has expressly agreed to pay it without reserve, and the landlord must bear the loss of the pro- perty destroyed. Besides, fires often occur by the carelessness of the tenant, and the obligation to pay rent after the destruction of the premises, tends to increase a reasonable and necessary vigilance on his part. 1 Mills V. Baer's Executors, 24 Wend. R. 454. 2 Paradine v. Jane, Aleyn, 26 ; Chesterfield v. Bolton, Com. E. 627 ; Bullock v. "Dommltt, 6 Term E.. 650. 8 Beale v. Thompson, 3 Bos. & Pul. 420. CH. IX.] OF THE COVENANT TO PAT RENT. 247 § 3T8. The quiet enjoyment of the premises, without any molestation on the part of the landlord, is an implied condition on which the tenant is bound to pay rent. Rent is something given by way of retribution to the lessor for the use of the land ; and, consequently, the landlord's claim for rent depends upon this, that the land is enjoyed by the tenant during the term included in his contract ; for the tenant ought not to make a return for a thing he has not. If, therefore, the tenant be at any time deprived of the premises, by any agency of the landlord, the obligation to pay rent ceases, because such obligation has its force only from the consideration which is the enjoyment of the premises.^ From this principle, it follows, that if the land be recovered by a third per- son by a title superior to that of the lessor, the tenant is dis- charged from the payment of rent after eviction by such recovery. But if part only of the land be recovered, such eviction is a dis- charge of so much of the rent as is in proportion to the value of the land evicted.^ If the lessor, however, expel the tenant from the whole or part only of the premises, the tenant is discharged from the payment of the whole rent.^ And the reason for the rule, why there should be no apportionment of the rent, in this case, as well as in that of an eviction by a stranger, is, that it is the wrongful act of the landlord himself, and no man may be encour- aged to injure or disturb his tenant in his possession, whom, by the policy of the feudal law, he ought to protect and defend.* § 379. This distinction also establishes the principle! that a tenant shall not be required to pay rent, even for the part of the premises which he retains, if he has been evicted, from the other part by the landlord. As to the part retained, this is deemed to be such a diminution of the consideration upon which the whole contract is founded, that the law refuses its aid to coerce the pay- 1 Pendleton v. Dyett, 4 Cotv. R. 58 ; Same case in Error, 8 Cow. E. 727 ; Pos- ton V. Jones, 2 Iredell, E. 350. 2 Lansing v. Van Alstyne, 2 Wend. E. 561 ; Stevenson v. Lambard, 2 East, R. 576 ; Hunt v. Cope, Cowp. 242. ^ Graham v. Anderson, 3 Harr. E. 364 ; Bennet v. Bittle, 4 Eawle, E. 339 ; Dalston v. Eeeve, 1 Ld. Eaym. 77 ; Jordan v. Twells, Ca. Temp. Hardw. 171 ; Walker's Case, 3 Co. 22; Lloyd v. Tompkins, 1 Term R. 671 ; 1 Saund. E. 202- 204, n. 2. * Lewis V. Payne, 4 Wend. E. 432 ; Btheridge v. Osborne, 12 Wend. E. 529 ; Co. Lit. 148, b. 248 LAW OP LANDLOBD AND TENANT. [CH. IX. ment of any rent-^ Upon this principle, it was even held, that if a landlord, without the consent of his tenant, uses privileges appur- tenant to the premises, and which are not expressly reserved in the lease, he is not entitled to collect rent.^ But where a land- lord does acts merely tending to prevent persons from applying to the tenant to underlet the premises, by offering to lease, and advertising them for that purpose, it was held to be no bar, to an action for rent, though the premises remained unoccupied.^ An eviction, however, from either the whole or part of the demised premises, has no effect upon the rent already due, at the time of the eviction, for this the landlord is still entitled to collect.* And where there is no demise by deed, if after eviction from part, the tenant continues to occupy the residue of the premises, he is chargeable for such occupation upon a quantum meruit.^ § 380. In order to produce an eviction, it is not necessary that there should be an actual physical expulsion, for the landlord may do many acts tending to diminish the enjoyment of the pre- mises, besides an actual expulsion, that will amount to an eviction in law, and exonerate the tenant from the payment of rent. The principle on which a tenant is required to pay rent is, the bene- ficial enjoyment of the premises, unmolested in any way by the landlord ; and it is a principle in all cases of contract, that a party who deprives another of the consideration on which his obli- gation is founded, can never recover damages for its non-fulfil- ment. It is wholly immaterial by what acts the failure of consi- deration has been produced, the only inquiry being, has it failed by the conduct of the lessor. And if a landlord erects a nuisance so near the premises as to deprive the tenant of the use of them, or to drive him away from them, no rent can be recovered. As where the lessor was guilty of habitually bringing lewd women under the same roof with the demised premises, though in an apartment not demised, by which nocturnal noise and disturbance was made, and in consequence the lessee quitted the premises with 1 Briggs V. Hale, 4 Leigh. E. 484 ; Neale v. Mackenzie, 2 Crom. M. & R. 84 ; S. C. 1 Gale, 119 ; 1 Mees. & W. 747. 2 Vaughan v. Blanchard, 1 Yeates, R. 175. 8 Ogilvie V. Hull, 5 Hill, (N. Y.) R. 52. • Kesler v. McConachy, 1 Rawle, R. 335 ; Boyntou v. Bobbitt, 2 Vent. 68. 6 Stokes V. Cooper, 4 Camp. R. 514 ; Neale v. Mackenzie, 2 Cr. M. & E. 84. CH. IX.] OE THE COVENANT TO PAY RENT. 249 his family, it was held to amount to an eviction, and that no rent was recoverable.^ But where a tenant abandons the premises, and resists the payment of rent subsequently accruing, on the ground that other apartments in the same building, adjoining or below his, are occupied as a place of prostitution, he must show that the landlord created the nuisance, by leasing such apart- ments for that purpose, or that it existed by his connivance and consent.^ § 381. There is no implied warranty on the letting of a house or land, that it shall be reasonably fit for habitation or cultivation, or any other purpose for which it was let. And where a person hired a house and garden for a term of years, to be used for a dwelling-house, but subsequently abandoned It, as unfit for habita- tion, in consequence of its being infested with vermin, and other nuisances, which he was not aware of When he took the lease ; the principle was at length laid down, after an elaborate review of all the cases where a contrary doctrine seemed to have prevailed, that there Is no implied contract on a demise of real estate, that it shall be fit for the purposes for which It was let.^ Consequently, an abandonment of the premises under these circumstances, forms no defence to an action for rent. And in all those cases where_ a tenant has been allowed to withdraw from the tenancy, and refuse payment of rent, there will be found to have been a fraud- ulent misrepresentation as to the state of the premises, which were the subject of the letting, or the premises were proved to be uninhabitable by some wrongful act, or default of the landlord himself.* But an exception to the rule holds when the contract is of a mixed nature, as for lodging, or of a house with furniture ; where it is said the landlord does Impliedly contract, that it shall be reasonably fit for habitation, and that the tenant may quit without notice if it be not so. And where a man took a ready- furnished house, but upon entering found it so infested with ver- 1 Pendleton v. Dyett, supra. 2 Gilhooley v. Washington. 4 Comst. R. 217. » Cleares v. "WUloughby, 7 HiU, (N. Y.) E. 83; Hart v. Windsor, 12 Mees. & Wels. 68 ; Sutton v. Temple, Ibid. 52. These eases directly overrule the cases of Edwards v. Etherington, 1 R. & M. 268; Collins v. Barrow, 1 M. & Rob. 112 j and Salisbury v. Marshall, 4 C. & P. 65. * Per Tindal, J. in Izon v. Gorton, 5 Bingh. N. C. 501. 250 LAW OF LANDLOED AND TENANT. [CH. IX. min as to be unfit for the occupation of a respectable family, Lord Abinger, C. B., left it for the jury to say, whether, under all the circumstances of the case, the alleged grievance amounted to a nuisance, or was merely made a pretext by, the tenant for leaving the house. ^ "J) 382. Rent being an equivalent for the interest enjoyed, a covenant for its payment cannot be enforced, if no estate passes under the lease; since there is no legal consideration for the engagement. As if an attorney grants a lease for another, in his own name, instead of the name of his principal ; ^ or if the commit- tee of a lunatic, having no legal authority for that purpose, make leases in their own name ; ^ or whenever the lessor (supposing him competent to demise) has no interest in the premises.* The same result ensues, whether the lease is void at common law or annulled by statute.^ And where a license was granted for a term of years, to continue a channel open through the bank of a navigable canal in order that the waste water might pass through the channel, to the mills of the grantee, on his paying a certain annual sum, and he covenanted to make such payments ; inasmuch as it appeared on the trial, that the grantors had no legal or equitable estate in the premises professed to be granted, the court held that the grantee or his assignee were not bound by the covenant.® § 383. The tenant's obligation to pay rent may also be appor- tioned ; for, as rent is incident to the reversion, whenever it is severed, either by the act of the parties or by act of law, the rent will follow the reversion, and become payable to the assignees of the respective portions thereof.'^ But the lessee's consent to the apportionment, when made by the lessor, is necessary to give it validity ; unless the proportion of rent chargeable upon each part 1 Smith V. Marrable, H M. &. "W. 5 | 1 Car. & Mar. 479. See also Cowie u. Goodwin, 9 C. & P. 378; Potter v. Truitt, 3 Harr. K. 331. 2 rrontin v. Small, 2 Ld. Ray. 1418 ; May v. Frye, Preem. 447 ; 2 Stra. 705. s Knipe v. Palmer, 2 "Wils. E. 130. * Aylet V. Williams, 3 Lev. 193. * Cleves II. Willoughby, supra; Jervotta v. Harridge, 1 Sid. 308; 1 Saund. 6 ; 2Keb. 102, 116. ^ Earl of Portmore v. Bunn, 1 Barn. & Cress. 694 ; 3 D. & R. 145. ' Nellis V, Lathrop, 22 Wend. R. 121 ; Van Rensselaer v. Jones, 2 Bart. R. 643. CH. IX.] OP THE COVENANT TO PAT EENT. 251 of the land has been settled by the intervention of a jury.^ The apportionment is to be made among the several owners of the reversion, or of the rent, according to the value of the land ; and it is the province of a jury to apportion the rent to the value, according to the evidence produced, unless the parties themselves settle the proportions to be collected from each tenant, by an agreement with him.^ And where the lessor is entitled only to an apportioned part of the rent, an action for recovering it need not be confined to that part, but he may sue for the whole amount, and recover as much as, in the opinion of the jury, he ought to have, and be barred as to the residue.^ <5i 384. Such apportionment, however, follows only upon a voluntary alienation of the reversion by the lessor ; and, there- fore, if the tenant transfers the whole or part of his lease, the effect will not be to discharge him of the whole or part of his lia- bility for rent, as he will still remain liable to the landlord for the whole.* The tenant, of course, will have the right to call upon the under-tenant |'or his proportion of rent, but it gives the land- lord a double remedy : against the tenant, for the whole rent, by virtue of his contract ; and against the under-tenant, for the part occupied by him, in respect to his privity of estate.^ Nor can one of two joint tenants of a lease discharge or apportion his liability, by assigning over to the other ; for the lessees, by their own act, can- not divide the rent, so as to put the lessor to several remedies for it.^ But whenever the reversion is severed by act of law, there will be an apportionment of rent. Thus upon a descent of the reversion among heirs, or on a judicial sale of part of the demised premises, the tenants will have two landlords, and bound to pay rent to each for the portion of the premises belonging to them respectively.^ And if the landlord die, leaving a widow, she will 1 Bliss V. Collins, 1 Dow. & By. 291 ; 5 B. & A. 876 ; 1 Man. & Gr. 577. 2 3 Kent, Com. 376 ; Cuthbert v. Kuhn, 3 Whart. 366 ; Farley v. Craig, 6 Halst. K. 262 ; McEUery v. Flannagan, 1 Har. & Gill, .308. 3 "Walter v. Maunde, 1 Jac. & Walk. 181. * Enshden's Case, Dyer, 4 b ; Broome v. Hore, Cro. Eliz. 633. ^ Stevenson v. Lambard, 2 East, E. 580. , 6 Bailiff of Ipswich v. Martin, 1 Eol. Abr. 235, 1. 35. ' Cole V. Patterson, 25 Wend. E. 456 ; Co. Lit. 148, a ; Walton v. Flint, Cro. Eliz. 742. 252 LAW OP LANDLORD AND TENANT. [OH. IX. have a right to receive one third of the rent, while the remaining two thirds will be payable to his heirs.^ § 385. Various other instances of apportionment, by act of law, may be mentioned. Thus where a portion of the premises is taten, by public authority, for the opening or widening of streets, the tenant is entitled to an abatement of the rent, and is only chargeable with the proportion of rent due for the residue not taken.^ And if the landlord enters upon part of the land for a forfeiture, he is only entitled to the proportion of rent due for the other part.^ So if the tenant surrenders part of his estate to the lessor, the rent will be apportioned, and payable only in respect to the residue of the premises ; * and if he be evicted from part only, by force of a paramount title, that will not operate as a sus- pension of the whole rent, but it will be apportioned and payable for the residue.^ As between the lessor and an assignee of the lessee, where the lessor's right to rent depends solely upon the privity of estate, an eviction out of part will not suspend the rent in toto, but the assignee will be liable for rent, payable in respect to the residue of the lands demised.^ Yet if the eviction be from part of the thing demised, out of which no rent issues, it will not produce a suspension of any part of the rent.' And if, at the time of entry by the lessee, part of the land is in the possession of a third party, under a prior demise from the same landlord, extending beyond the period of the second demise, the demise of the part leased to another will be wholly void, and the rent will not be apportionable, nor will the lessor be entitled to distrain for the rent, or any part of it.^ § 386. Where the lessee has been once evicted, the rent will be suspended for the future, although the obstacle to Ms reentry he removed; and where a defendant pleaded, that the lessor 1 1 Kol. Abr. 237, b, 12, Apportionment ; Cro. Eliz. 771. 2 Gillespie v. Thomas, 15 "Wend. E. 464 ; Cro. Eliz. 742 ; Cro. Jae. 160. 3 Walker's Case, 3 Eep. 22. * Smith V. Mailings, Cro. Jao. 160. 6 Ibid. ; Co. Lit. 148 ; Walker's Case, supra. " Stevenson v. Lambard, supra. 7 Saunderson v. Harrison, Cro. Jac. 679. 8 Neale v. Mackenzie, 1 Mees & Wels. 747. CH IX.] OF THE COVENANT TO PAT RENT. 253 entered and held Mm out, it was determined that the entry of the lessor was enough to satisfy the averment of holding out, and that it suspended the rent, although it appeared that the lessor retired from the land immediately after the lessee's eviction.^ In a case where a lessee took possession of a fai-m, under an agreement, which his landlord, in a material point failed to fulfil, and occu- pied the premises for a year ; at the expiration of which time the landlord sued him for the full amount of the rent ; the court were of opinion that the agreement between them was only evidence of the amount of rent to be paid, where the tenant had occupied under such agreement; but that, in the present instance, the landlord having failed to fulfil the agreement, in the chief object which had induced the lessee to propose becoming a party to it, the tenant could not be said to hold the farm under the agree- ment ; and that, therefore, the landlord was not entitled to recover the full amount of rent, but only so much as the jury should think the tenant ought to pay, under all the circumstances of the case.^ Where part of the land is lost to a tenant by the act of God, he is not liable for the whole rent ; as if the sea break in and over- flow a part of the land ; in which case, although the soil remains to the tenant, he cannot appropriate the fishery, which is its only use, to his exclusive enjoyment, the sea, the common highway of nations, being open to every one. But a distinction is made between the sea and fresh water ; because, though the land be covered with fresh water, the right of taking fish there is exclu- sively vested in the lessee, and therefore there will be no deduc- tion of rent in this event.^ § 387. It is a well settled rule, that in all cases of periodical payments, accruing at intervals and not de die in diem, there can be no apportionment.* If, therefore, a tenant is evicted at any time before the rent becomes due, it is not payable at all. As, for instance, if there be a lease for a term of years, rent payable annually, and, before the expiration of the year, the lessee be 1 Cibil V. Hill, 1 Leon. E. 110. " Tomlinson v. Day, 2 Br. & Bing. 682. s 1 Rol. Abr. 236, 1. 46 ; Dyer, 56, a. * Clapp u. Astor, 2 Edw. Ch. R. 379 ; Wilson u.Harman, 2 Yes. Sen. 672; S. C. Amb. 279; 3 Bro. C. C. 101. 22 254 LAW ' OP LANDLORD AND TENANT. [CH. IX. evicted, the lessor shall have no rent ; ^ or, if rent be payable quarterly, and the tenant be turned out before the end of a quar- ter, the landlord loses the rent of the current quarter, for rent will not be apportioned in respect of time.^ For this reason, by the common law, if a tenant for life made a lease for years, ren- dering a yearly rent, and died in the course of a year, the rent could not be apportioned, and his tenant would go free of rent for the first part of the year, since it was an entire contract, which could not be apportioned.^ But the statute of 11 Geo. II. c. 19, first applied a remedy to cases of this kind ; and the Revised Statutes of New York, following the English statute, declare, " When a tenant for life, who shall have demised any lands, shall die on or after the day when any rent became due and payable, his executors or administrators may recover from the under-tenant the whole rent due ; if he die before the day when any rent is to become due, they may recover the proportion of rent which accrued before his death."* § 388. An eviction consists in taldng from a tenant some part of the demised premises of which he was in possession, not in refusing to put him in possession of something, which, by the agreement, he ought to have enjoyed ; the omission of a landlord, therefore, to perform such covenants, does not amount to an evic- tion, and is no bar to the lessor's claim for rent ; the lessee's remedy is by an action to recover damages for a breach of the covenant.^ Yet, where the landlord let an unfinished house, and agreed to finish it by a certain day, but did not, it was held that the tenant was not bound to occupy the house ; but, if he actually occupied it, he was bound to pay the stipulated rent, and that the fact of possession subjects a tenant to the payment of rent, unless there has been an eviction.^ In order to effect a suspension 1 Bank of Penn. v. Wise, 3 Watts, 394 ; Countess of Plymouth v. Throgmorton , I Salk. 65. 2 Zule V. Zule, 24 Wend. E. 76 ; Clan's Case, 10 Eep. 12S ; Wood v. Partridge, II Mass. R. 488 ; 15 Ibid. 268. , s Clun's Case, supra; Jenner v. Morgan, 1 P. Wms. 392; Cutter v. Powell, 6 T. K. 320. 4 1 E. S. 747, § 22. 5 Etheridge v. Osborne, 12 Wend, E. 529. 6 Allen V. Pell, 4 Wend. E, 505. CH. IX.] OF THE COVENANT TO PAY RENT. 255 of rent, there must be an actual expulsion or eviction from the premises, and not a mere trespass, or disturbance of the enjoyment.^ Therefore, where a lessor commanded the break- ing of a partition -w-all in the house demised, it was held not to amount to a reentry .2 And where a lease was executed of three rooms in a building, together with a landing on a navigable canal, embracing a front of two hundred feet, and the lessee cove- nanted to pay a certain annual rent, so long as he should he per- mitted to occupy the premises, it was held, in the State of New York, that the destruction of the rooms by fire was not embraced in the qualification contained in the covenant ; and, to entitle the defendant to a discharge from the rent, he should have shown a a surrender of the whole of the premises ; and that, while he remained in possession of any portion of the premises, he could claim only a pro rata deduction of rent for such part only as had been destroyed.^ ^ 389. Any other mere entry upon the premises by the land- lord, witJiOxU an eviction, does not discharge the rent ; for the landlord, in such case, is only a trespasser.* But where a party, after executing leases of portions of his farm to several tenants, granted the whole farm, with the reversion of the demised pre- mises, to a tenant in fee, reserving an annual rent, and after such grant entered upon the premises, and distrained the goods of the original tenants, for rent accrued subsequent to the grant of the whole estate ; such entry and distress were held* equivalent to an eviction of the principal tenant, and produced a suspension of the rent.^ § 390. Where a lessor, being owner of the fee, dies, after rent has become due, it is payable to his executor or administrator, and not to the heir at law ; but if he dies before the rent accrues, it belongs to the heir, and not the executor or administrator.^ In ^ 'Waldroii v. McCarty, 3 Johns. E. 471 ; Kortz v. Carpenter, 5 Johns. E. 120 ; Eoper V. Lloyd, Sir T. Jones, 148 ; Hunt v. Cope, Cowp. E. 242. 2 Harrison's Case, Clayt. 34 ; Smith v. Eawleigh, 3 Camp. 513. 3 Willard v. Silliman, 19 Wend. E. 358. ' Wilson V. , Yerger, E. 379. 5 Lewis V. Payn, 4 Wend. E. 423. " Cole V. Patterson, 25 Wend. E. 456; Duppa v. Mayo, 1 Sannd. E. 287 ; Bar- wick V. roster, Cro. Jac. 227 ; 2 Dana, (Ky.) E. 54. 256 LAW OF LANDLORD AND TENANT. [CH. IX. a recent English case, a tenant for life, having granted leases in conformity to his power, died before midnight, though after sun- set, on the rent-day ; and the remainder-man was declared entitled to the rent, because it followed the reversion, which descended to the heir before the rent became due.-' § 391. As to the time when rent is due, it is to be observed, that by the old law it was demandable and payable before sunset of the day whereon it was to be paid ; on the reasonable ground that sufficient light should remain to enable the parties to reckon the money ; for anciently, the day was accounted to begin only from sunrising, and to end immediately upon sunset.^ But Lord Hale laid down the law, which has been followed since his day, that although sunset was the time appointed by law to demand rent, in order to take advantage of a condition of reentry in case of its non-payment, and to tender it in order to save a forfeiture, yet, that in strictness, the tenant has all the day to pay it, and that it is not due until midnight, or the last minute of the natural day, whereon it is made payable.^ If therefore, the tenant is evicted by his landlord on the day the rent is payable, it will ope- rate as an extinguishment of the whole rent.* The day of payment depends upon contract ; and if there is no special agreement to the contrary, payment would be due, either yearly, half-yearly, or quar- terly, according to the usage of the country, and the presumed intention to conform to it. If there be no usage in the case, rent is not due until the end of the year.^ But we have seen, that in the city of New York, in the absence of any special agreement, rent is payable on the usual quarter days, by statute. When payable in money, interest is allowed to be recovered upon rent in arrear from the time it became due, at least in New York, Pennsylvania, and Maryland ; ^ and such is believed to be the general rule. But in North Carolina, it is held not to be recoverable by way of damages, in an action of debt for 1 Norris v. Harrison, 2 Mad. Ch. E. 268. 2 Co. Lit. 202, a, ^ Duppa V. Mayo, supra. * Smiih V. Sliephierd, 15 Pick. 147. ^ 3 Kent, Com. 374 ; Menough's Appeal, 5 "Watts & Ser. E. 432. o Clark V. Barlow, 4 Johns. E. 183 ; Obermyer v. Nichols, 6 Binney, 159 ; S. C. 4 McCord, 59: Dennison v. Lee, 6 Gill & Johns. 383. CH. IX.] OP THE COVENANT TO PAX RENT. 257 rent/ nor in Louisiana, except from the time of the judicial demand.2 § 392. Wten rent in hind is payable by the terms of the lease at such a place, in a market town, as the lessor shall appoint ; if no appointment is made, it is the duty of the lessee to seek the lessor, ascertain the place of payment, and there deliver his rent. If the landlord cannot be found, a delivery anywhere within the market town, would be sufficient. And whether payable in kind or money, if no place of payment is specified, a tender of either upon the land, is good, and prevents a forfeiture.^ But though the tenant is under no obligation to go and seek the landlord, provided the contract is silent as to the place of payment, a per- sonal tender off the land is sufficient also.* § 393. A tender of money Is its actual production and manual offer to the party entitled to the payment. It is not enough for the party to say, I am ready to pay the debt, or perform the duty ;■ but he must make an actual offer to pay the one or discharge the other.* He must declare on what account it is made ; ^ and actu- ally produce the money, and not keep it in his pocket ; but he may offer a bag with the money in it, and it is then the creditor's duty to examine and count it.^ The actual production of the money, however, may be dispensed with by the conduct of the creditor, as if he objects to receive it, because it is too much ; or because it does not amount to the debt due, together with another debt which he also insists on receiving ; or where he tells the party he need not produce the money .^ But the circumstance of de- manding more than is due, is not sufficient to excuse an actual tender of what is due ; ^ and, notwithstanding a refusal to accept 1 Cook V. "Wise, 3 H. & Munf. 463. 2 Perret v. Dupr^, 19 Louis. E. 341. ' Lush V. Druse, 4 Wend. K. 313 ; 16 Johns. R. 222. ' Walker v. Dewey, 16 Johns. E. 222; Hunter v. Laconte, 6 Cow. E. 728; Soward v. Palmer, 8 Taunt. E. 277 ; Tinckler v. Prentice, 4 Taunt. E. 555. 5 Bakeman o. Pooler, 15 Wend. E. 637 ; 2 Dall. E. 190; 12 Mod. E. 353. 6 Latch, 70. 7 4 Esp. E. 68; 5 Ibid. 48; 4 DaU. E. 372 ; Ibid. 190; 5 Co. 115; 1 Inst. 208 ; 5 Term E. 432. 8 Cow. Treatise, 794 ; 3 Term E. 683 ; Peake, E. 88. 3 Dunliam u. Jackson, 6 Wend. E. 22. 22* 258 LAW OF LANDLORD AND TENANT. [OH. IX. by the creditor, the party tendering must show that the money is ready about him, or the refusal will not make it a good tender.-' It must also be without qualification or condition, or an intention of cutting off some other claim beyond the amount tendered ; as if the debtor, at the time of the tender, demands a receipt in full of all demands.^ § 394. As to a tender of specific articles, the authorities agree, says Judge Cowen, in his treatise on the Justices' Courts, that the party making the tender, must do every thing in his power to place himself in a state of perfect readiness to perform, or the tender will not be complete, whether the creditor be present or not.3 It is a general rule, also, that where any act yet remains to be done by the purchaser to prepare the goods for delivery, until this be done, the property does not pass, and the essential object of identifying the goods, and giving the tenderee a remedy for them, by caption, trover, or other action to obtain the goods, or the value of them, is not yet obtained. This is essential, for the party is not to be deprived of all remedy upon his contract, unless another remedy be furnished him by passing the property of the chattels and placing them completely under his control.* Strictly, a tender must be made in gold and silver coin made cur- rent by acts of Congress of the United States. Such coin as is issued from the mint may be counted, and the creditor must take it according to its nominal value. But with regard to foreign coin, the creditor may decline receiving it, except by its true weight and value.'' Bank-notes constitute a part of the common 1 5 Esp. E. 4S. " Wood V. Hitchcock, 20 Wend. E. 47 ; 7 Dow. & Ey. 1 19 ; 1 N. & McCord, 242. 8 1 Str. 504 ; 3 Johns. Cas. 253, per Eadcliff, J. < Cow. Treatise, 796; 15 Johns. E. 351 ; 12 East, 621 ; 13 Ibid. 522; 1 Eoot, 443 ; 5 Johns. E. 119. 5 Cow. Treatise, 798. Spanish milled dollars, and their proportional parts, are declared current in the United States, and a legal tender, by Act 10 April, 1806. The dollar of Mexico, Peru, Chili, and Central America, Bolivia, and Spanish pillar dollars of the requisite weight and fineness, are receivable by tale in pay- ment of debts, for one hundred cents each ; and the five-franc piece of France for ninety-three cents ; by Act 3 March, 1843 ; Act 25 June, 1834. The gold coins of Great Britain at 94 6-10 cents per pennyweight; of France, at 92 9-100 cents per pennyweight, by Act of 3 March, 1843 ; and the gold coins of Portugal and Brazil, 22 carats fine, at 94 8-10 cents per pennyweight ; and of Spain, Mexico, and Co- lumbia, 20 carats 3 7-16 grains fine, at the rate of 89 9-10 cents per pennyweight, CH. IX.] THE COVENANT TO PAT TAXES, ETC. 259 currency of the country, and ordinarily pass as money. When they are received as payment, the receipt is always given for them as money ; and they are a good tender as money, unless specially objected to by the creditor, at the time of the offer.^ Section III. The Covenant to pay Taxes, Charges, and Assessments. § 395. As far as the public is concerned, it is a general princi- ple that the tenant is to pay all taxes imposed on the premises ; in fact, the land itself, in the hands of the occupant, is debtor to the public, and prima fade it is the tenant's tax, because all the remedies are against him. He is, therefore, for his own protec- tion, authorized to pay such taxes, as well as assessments for pub- lic improvements, when demanded, and charge them to account of rent ; unless it is clearly a part of his agreement that he shall pay the taxes as part of, or in addition to, the rent.^ But, as between landlord and tenant, the landlord is bound to indenmify the tenant against all such charges as he has been obliged to pay, and for which the landlord was primarily liable.^ And, therefore, when the tenant advances the tax, ground-rent, assessment, or other prior charge on the land, compulsorily, he may look to the landloi;d again for it and recover the amount paid, in an ordinary suit at law, or deduct it out of the rent, unless it is provided by the lease that the tenant shall pay it.* Nor is it necessary, for the purpose of rendering the payment one by compulsion, that the superior lord should actually threaten to distrain ; for a demand by one who has power to distrain, is equivalent to a threat of dis- tress ; and such a payment, to use the words of Best, C. J., is no more voluntary than a donation to a beggar, who presents a pistol.^ by Act of 28 June, 1834, are made current and receivable by weight, for the pay- ment of all debts and demands. 1 Per Story, J., United States v. Bank of Georgia, 10 Wheat. E. 347. 2 Tinckler v. Prentice, i Taunt. R. 549; Gabell v. Shevell, 5 Taunt. R. 81. ' Sapsford v. Fletcher, 4 Term R. 511 ; Stubbs v. Parsons, 3 B. & A. 516. * Taylor v. Zamira, 6 Taunt. R. 524 ; Clennell v. Read, 2 Mars. 371 ; 7 Tannt. K. 50 ; Dowson v. Linton, 5 B. & A. 521. 6 Carter v. Carter, 5 Bingh. R. 406. 260 LAW OF LANDLORD AND TENANT. [CH. IX. And, if the sum paid by the tenant exceeds the rent due to the landlord, it will create an assumpsit on the part of the landlord to. repay such excess, as money paid by the tenant to his use.^ § 396. According to the English law, a tenant must deduct each yearns tax from every year's rent ; for if the deduction is not made from the rent of the current year, the tenant will not be allowed to deduct in any subsequent year, the amount of the tax so omitted to be deducted.^ Thus, where an occupant of lands, having during a course of twelve years, paid to the collector of taxes the landlord's property-tax, and the full rent as it, became due to the landlord, without claiming any deduction on account of the tax so paid ; he was not permitted to set off any part of the property-tax so paid, in the landlord's action for rent.^ In the cases referred to, however, it was held, that the statute required the tenant to deduct those payments out of the rents of the then current years, and that for that reason they could not be set off against subsequent demands of rent by the landlord ; but the court expressly say, that such payments are still recoverable by the tenant in a separate action for maney paid to the landlord's use, because of the landlord's liability to indemnify the tenant against such payments at common law. § 397. But this restriction of the tenant's right to deduct the taxes only from the current year's rent, does not exist in the New York statute, which declares, " When the tax on any real estate shall have been collected of any occupant or tenant, and any other person, by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover, by action, the amount which such person ought to have paid ; or to retain the same from any rent due, or accruing from him, to such person, for the land so taxed." The same statute also enacts, " Where any district tax, for the purpose of purchasing a site for a school-house, or for purchasing or building, keeping in repair, or furnishing such school-house with necessary fuel and 1 Per Burrouglis, J., in Taylor w. Zamira. 2 Stubbs V. Barsons, 3 B. & A. 516; Andrew v. Hancock, 1 Brod. & Bing. 37 ; Spragg V. Hammond, 2 Ibid. 59. 3 Denby v. Moore, 1 B. & A. 123. CH. IX.] THE COVENANT TO PAY TAXES, ETC. 261 appendageSj'shall be lawfully assessed and paid by any person, on account of any real property -whereof he is only tenant at -will, or for three years, or for a less period of time ; such tenant may charge the owner of such real estate with the amount of the tax so paid by him, unless some agreement to the contrary shall have been made by such tenant." ^ § 398. A covenant by a tenant to pay all rates, which, during the term, should be assessed upon the premises, except the land- tax, means except the land-tax which the landlord is obliged to pay ; therefore the tenant must pay the additional tax occasioned by an improvement of the premises.^ In a case where a tenant took a village lot for twenty-one years, and covenanted to pay all taxes, charges, and impositions which should be imposed upon the premises, and during the term the premises were subjected to an assessment for pitching and paving a street, under an act incor- porating the village and authorizing such assessment, passed sub- sequent to the making of the lease ; the court held, that by the terms of the covenant the tenant was liable to pay the assessment, although the expenditure was for a permanent benefit, extending beyond the term.^ So where a lessee covenanted to pay all assessments for which the property should be liable, he was held bound to pay an assessment subsequently imposed, for opening a street, although it was not authorized by any law existing at the time the lease was executed.* <5> 399. As both landlord and tenant are entitled to damages in the event of property being taken for public improvements, — the landlord for the value of the land taken, and the tenant for the injury done to the lease, — so, in case they are both benefited by the contemplated improvement, they are both liable to be assessed, in proportion to the benefit they receive. But where a lessee covenanted to pay all taxes and assessments, which might be imposed during the term on the premises by legal authority, and an improvement was made, which took away part of the leasehold 1 1 E. S. 419, § 4 ; Ibid. 483, § 83. 2 Hyde v. Hill, 3 Term R. 377. 2 Bleecker v. Balloa, 3 Wend. E. 263 ; Mayor, &c. of New York v. Cushman, 10 Johns. E. 96 ; Oswald v. Gilfert, 11 Ibid. 443. ^ * Post V. Kearney, 2 Comst. E 395. 262 LAW OP LANDLOKD AND TENANT. [CH. IX. premises ; it was held, that the lessee was chargeable with the full amount of the assessment, upon the whole interest of the les- sor in such premises.! Section IV. The Covenant to Insure. § 400. A covenant is sometimes inserted in a lease, requiring the tenant to insure the premises ; and, in case of damage by fire, to apply the money to be received for insurance in rebuilding or repairing the premises. Without such covenant, he is under no obligation to effect an insurance ; although, if it is a long lease, he might find it prudent to do so for his own protection. This covenant, in general, gives the landlord no right to receive the insurance-money from the insurers ; but when it contains a clause for reinstating the premises with the insurance-money, he may not only require it to be so applied, but it becomes also a covenant, running with the land, enabling the assignee of the reversion to maintain an action for its breach. And a similar effect will be given to this covenant, wherever a statute requires the money to be so applied.^ A covenant to insure and keep insured a given sum of money upon the premises, during the term, in some suffi- cient insurance office, means that the premises shall be kept insured against fire, in some office where insurances against fire are usually effected ; ^ not that the lessee should effect any one policy, and keep that particular one on foot ; but that he, his exe- cutors, and assigns, should always keep the premises insured by one policy or another.* § 401. If the tenant covenant to keep the premises in repair, and also to insure them for a specific sum against fire ; on their being burned down, his liability on the former covenant is not 1 Astor V. Miller, 2 Paige, R. 68. 3 Thomas v. Von Kapff, 6 Gill & J. 372 ; Vernon v. Smith, 5 B. & A. 1 ; Spen- cer's Case, 5 Co. 17. 2 Doe dem. Pitt v. Shewin, ^ Camp. E. 135. " Doe dem. Plower v. Peck,"l B. & Ad. 428. CH. IX.] THE COVENANT NOT TO ASSIGN. 263 limited to the amount of the sum insured under the latter, but he is bound to put the premises in as good order as they were, not- withstanding the sum insured may not be sufficient for that pur- pose.i Where the defendant covenanted to keep the premises insured during the term, and the policy declared that only fifteen days beyond the quarter-day should be allowed for the payment of the premium, and he suffered the fifteen days to elapse before it was paid, but insured afterwards ; the court held the covenant broken, for the landlord run the risk of fire from the fifteenth day to the time the insurance was renewed.^ A forfeiture for the breach of this covenant will not be relieved against in equity ; and it is held that, on the non-performance of it, the lessor may enter as for breach of condition, and oust the assignee of the lessee ; even although the lessor has distrained for rent, with knowledge of the breach of covenant, which was a waiver of the breach of condition up to the time of distress ; for the subsequent non- insurance was held to be a continuing breach up to that time, and gave a right of reentry for the forfeiture.^ Section V. The Covenant not to Assign. § 402. A covenant not to assign or underlet the premises, with- out the express permission of the landlord, is a covenant on the part of the lessee frequently inserted in a lease ; and although it seems to be a reasonable privilege, that a man shall exercise this restraint for the salutary purpose of selecting his own tenants, such as he is satisfied will take care of his property, and pay rent punctually, it is a restraint which courts of law do not favor.* 1 Digby V. Atkinson, 4 Camp. R. 275. ^ Doe dem. Pitt v. Shewin, supra. ^ Doe dem. Flower v. Peck, supra. " Church V. Brown, 15 Ves. E. 265 ; Black. R. 767. A provision of a similar character exists in many of the manor leases in New Tork, having for its object the exclusion of dangerous or improper persons among the landholders. It con- sists in a reservation to the proprietor of the quarter-sales, and a pre-emption right upon every alienation made by the tenants. There was, perhaps, another reason for this reservation in the Van Rensselaer leases ; that it was, in fact, a part of the consideration of the original purchase of the premises, nothing having been 264 LAW OF LANDLORD AND TENANT. [CH. IX. In some cases the restriction extends to the whole duration of the term ; in others to a limited time only, such as for the last year, or the last two or three years ; so that, at all events, the lessor may find, on the determination of the lease, a responsible person in possession of the property, to whom he may look for rent. § 403. Covenants of this description are construed by courts of law -with the utmost jealousy, to prevent the restraint from going beyond the express stipulation.^ It is, therefore, settled, that if the lessee covenant not to assign, transfer, set over, or otherwise do, or put away the lease or premises, it does not prevent under- letting? But a condition not to set, let, or assign over the demised premises, or any part thereof, comprehends under-leases ; for where the condition was, not to let or assign over the premises, or any part thereof, a lease by the tenant, which fell short of his term by only one day, was held to be a breach of the condition.^ And a covenant not to let, get, or demise the premises, or any part, for all or any of the term, restrains an assignment.* Where the proviso in the lease was, that " if the lessee, his executors, or administrators, did or should assign, or otherwise part with the lease or the premises thereby granted, or any part thereof, for the ivliole or any ^art of the term thereby granted, to any person or persons whomsoever, without the license and consent, in writing, of the lessor, first had and obtained for that purpose, the lessor might reenter ; " and the lessee entered into an agreement with another, to grant him a lease of the premises for the residue of the term, reserving a few days under which possession was given, Lord Ellenborough held that the words of the proviso included an under-lease, and that, consequently, an under-lease was a breach of the proviso.^ paid by the tenants upon their receiving a grant of their lands from the patroon. All future reservations of fines or quarter-sales are now prohibited in New York, by the Constitution of 1846. 1 Doe V. Carter, 8 Term R. 61. 2 Jackson v. Silvernail, 15 Johns. R. 278; Jackson v. Harrison, 17 Ibid. 66; Cnisoe dem. Blencome v. Bugby, Black. R. 766 ; S. C. 3 Wils. R. 234. 3 Doe V. Harrison, 2 Term R. 425 ; Roe v. Sales, 1 M. & S. 297. * Greenway v. Adams, 12 Ves. 395 ; Cro. Eliz. 425. ,5 Doe dem. Holland v. Worsley, 1 Camp. 20. CH. IX.] THE COVENANT NOT TO ASSIGN. 265 § 404. A covenant, that if the lessee or his assigns sells, the lessor shall have the right of preemption, and one tenth of the purchase-money, is a valid covenant ; and the estate is forfeited, if that be made a condition of the breach of it.^ But in a subse- quent case the Chancellor of New York held, that a condition and covenant in a lease in perpetuity, — that, upon every sale of the premises, the lessee or his assigns must obtain the consent, in writing, of the owner of the rent and reversion, and should offer him the right of preemption, and, if sold after such offer, one tenth of the purchase-money to be paid to the lessor, — was in restraint of and in the nature of a fine upon alienation, and inconsistent with the spirit of our institutions ; that the remedy, if any, was at law, and not in equity ; and that if the landlord has not secured to himself a remedy at law, a court of equity will not interfere to help him.^ § 405. Where a lease provided that the landlord should reenter, in case the tenant should let the premises, or any part thereof, or convey to any person whatsoever, for all or any part of the term, without the license of the lessor ; and the tenant, without such license, took a third person into the partnership with him, and agreed to let him the back chamber and some other part of the premises exclusively, and the rest jointly with the lessee, and he was accordingly let into possession ; the court held this to be a breach of the proviso, whether the possession was given gra- tuitously or for rent.* But a covenant not to underlet is not broken by taking in a lodger, although he have the exclusive pos- session of a room for a year or more ; for, as Lord Ellenborough said, " the covenant can only extend to such underletting, as a license might be expected to be applied for ; and who ever heard of a license from a landlord to take in a lodger ? " * <5> 406. Depositing a lease, as security for money, is no breach of a covenant not to assign ; ^ even though the covenant be not to let, set, assign, transfer, or otherwise part with the premises 1 Jackson v. Schutz, IS Johns. E. 174; Jackson v. Groat, 7 Cow. E. 285. " Livingston v. Stickles, 8 Paige, E. 398. 8 Eoe V. Sales, supra. ' Doe dem. Pitt v. Laming, 1 E. & M. 36. 6 Doe dem. Goodbehere v. Beyan, 3 M. & S. 353. 23 266 LAW OF LANDLORD AND TENANT. [CH. IX. thereby assigned, or that present indenture of lease.^ Nor can the mere act of advertising the leased premises for sale be con- strued into a breach of such covenant.^ If a legsee covenant that he, his executors, or administrators, will not assign without license, and die, the executor will be bound by the covenant, and cannot sell the premises for the payment of debts, without the license of the lessor.^ And a covenant that the lessee may assign or sell the demised premises, on giving the preemption to the lessor, and paying one tenth of the purchase-money to him, or that the lease shall be forfeited, extends not only to an assignment of the lessee, but to that of his assignee, either by a voluntary assignment, or by operation of law.* § 407. If the covenant prohibits an assignment to some parti- cular person, it is to be understood of an immediate assignment to that person ; for if the assignment is made to some third person, who subsequently assigns to the prohibited individual, there is no breach of the covenant ; ^ unless the assignment bad been made to such third person with the intent, and for the purpose of his assigning it over.^ But if it be covenanted, " that in case the lessee should suffer or permit more than one person to every one hundred acres, to reside on, use, or occupy any part of the premises, the lease should be void," and the lessee lets part of the premises to persons for a year, to cultivate on shares, in the pro- portion of more than one to each hundred acres, it is a breach of the condition, and defeats the lease.'^ And if the lease contains a covenant that the lessee shall not assign without the permission of the lessor, an assignment of part of the premises with such con- sent is not a surrender, but the lessee still remains liable for every act of the assignee, that amounts to a breach of the cove- nant.^ 1 Doe dem. Pitt v. Hogg, 4 D. & E. 226 ; S. C. 1 Ey. & M. 36. ^ Gourtray v. Duke of Somerset, 1 Ves. & B. 73. ' Lloyd V. Crispe, 5 Taunt. E. 249 ; 2 Term E. 425. * Jackson dem. Livingston v. Groat, 7 Cow. E. 285 ; Jackson dem. Lewis v. Schutz, 18 Johns. E. 174. ^ Dyer, 45, a. » Co. Lit. 223, b. ' Jackson dem. Colden v. Brownell, 1 Johns. E. 267 ; same v. Eich, 7 Johns. R. 194. ' Jackson dem. Church v. Brownson, 7 Johns. R, 227. CH. IX.] THE COVENANT NOT TO ASSIGN. 267 § 408. But an assignment, either by the lessee or his executor, which is not voluntary, but done by operation of law, is not a breach of the covenant not to assign.-' Therefore, ivhere a lessee, who had so covenanted, gave a warrant of attorney to confess a judgment on which the lease was taken in execution and sold, it was consi- dered no breach of the covenant.^ But such execution must be bond fide, for if the tenant give a warrant of attorney to a cre- ditor for the express purpose of enabling the creditor to take the lease in execution, this will be a fraud and breach of the covenant ; and if the lease is sold under such an arrangement, the lessor can recover the premises from a purchaser at the sheriff's sale.^ And if the lessee make a general assignment for the benefit of credit- ors, by order of a court of law, or judge, it will be valid, and his assignees will not be bound by this covenant, but may dispose of it as they please.^ It would seem, also, that the devise of a term by the lessee, is not a breach of covenant not to assign ;^ although the earlier cases held to the contrary.® So if a single woman, to whom a lease has been granted with a condition against alienation, take a husband, it is no breach of the condition ; because it is the act of the law which gives the lease to her husband.'' Yet, if a lease be made to a husband and wife, upon condition that if it come to any other hand than their own, or that of their issue, the lessor shall reenter ; and afterwards the husband die, and the wife take another husband, the lessor will have a right to re- enter.^ And if the covenant is merely personal, as that the lessee shall not sell without leave, his executors, not being named, may sell without incurring a breach.® § 409. The landlord may guard against such operations of law 1 Wilkinson v. Wilkinson, Coop. Eq. E. 259 ; Wetherell v. Geering, 12 Ves. 513 ; Stevenson v. Silvernail, 15 Johns. K. 278 ; Jackson v. Corlis, 7 Johns. E. 531 ; Smith V. Putman, 3 Pick. 221. 2 2 Atk. E. 219 ; 8 Term E. 57 ; Doe v. Bevan, 3 M. & S. 358. 8 Doe dem. Mitchinson v. Carter, 8 Term E. 57. ' Gorring v. Warner, 2 Eq. Ca. Abr. 100 ; Philpot v. Hoare, Amtl. 480 ; 13 Ves. 404 ; 3 M. & S. 353 ; Doe v. Powell, 5 B. & C 308 ; 8 Dow. & Ey. 35. B Crusoe v. Bugby, 3 Wils. E. 237 ; Doe v. Beyan, 3 M. & S. 361. 6 Dyer, 45, b ; Cro. Eliz. 60 ; Ibid. 330, 817. ' Moore, 21. B Com. Dig. (Condition,) Q. 9 4 Kent, Com. 130. 268 LAW 05 LANDLORD AND TENANT. [CH. IX. by the provisions of Hs contract, and expressly stipulate that the lease shall not so pass, and render even such an assignment a for- feiture.^ Thus, where one leased a farm for twenty-one years, if the lessee and his executors should so long continue to occupy it, and not to let, assign, or otherwise part with the lease ; and the tenant having become bankrupt, and made an assignment, his assignees sold the lease, it was held that the landlord had a right to enter when the insolvent quit the occupation of the premises.^ And so if the tenant holds his estate under an express condition to keep it in his own possession, or to cease upon its being taken in execu- tion, the estate will cease upon the premises being taken under an execution, so as to put an end to his occupation.^ § 410. When a license has been once given, the covenant is, in general, iherely wholly discharged, and no further consent is neces- sary to make a subsequent alienation ; because a proviso, or con- dition, cannot be divided or apportioned by the act of the parties.* Or if the lease be made to three, with a condition, that neither they nor any one of them, shall alien without license, and then the lessor licenses one, this discharges the condition as to all.^ And whether the license be general, or given to only one person in particular, by name, it does not vary this principle ; for the con- dition being once dispensed with, it is wholly dispensed with ; the provision for making void the lease must exist entire, or not at all, and any subsequent assignee may alien without license.^ And if the license extends to but part only of the premises, the lessee may afterwards alien the rest without further license.'' But this rule of law may be restrained by the express contract of the par- ties, (as is the case with most of the leases granted in the city of New York,) that permission to assign the lease once given, shall 1 Eoe V. Galliers, 2 Term E. 133 ; Davis v. Eyton, 7 Bing. B. 154 ; Doe v Hawkes, 2 Ea.st, E. 481 ; 8 Ibid. 135 ; Cooper v. Wyatt, 5 Mod. E. 482 ; Garwold V. Moorhouse, 1 E. & Myl. 364. 2 Doe dem. Loekwood v- Clarke, 8 East, E. 185. " Doe dem. Duke of Norfolk v. Hawke, 2 East, 481. * Bleecker v. Smith, 13 Wend. E. 530 ; Dakin v. 'Williams, 17 Wend. E. 447 ; Jones V. Jones, 12 Ves. E. 186 ; Dickey v. McCuUough, 2 W. & S. 100 ; Dumpor's Case, 4 Eep. 119; 1 V. & P. 191 ; 14 Ves.. 175. s Leeds v. Compton, 1 Eol. Abr. 472. * Brummel v. Macpherson, 14 Ves. E. 173. Leeds v. Compton, supra. CH. IX.] THE COVENANT NOT TO ASSIGN. 269 not operate so as to authorize any subsequent assignment, but that for each subsequent assignment, express permission shall be necessary ; the object of which appears to be, to require each new party to the assignment, to enter into a fresh covenant with the lessor to pay rent, by which means he gets an additional surety for rent upon every fresh license given. § 411. But the acceptance of rent by a landlord, after the breach of a condition not to underlet, is not tantamount to a license ; and for any subsequent underletting, the landlord may reenter.^ And in order to put an end to the condition, the license must be such as is therein contemplated ; as where the proviso requires the consent of the lessor in writing, a parol license is not suflScient either at law or in equity, yet if such parol license has been used as a snare, and under circumstances which amount to fraud, equity will give relief.^ Or if the condition be not a gene- ral restraint of alienation, but permits the lessee to assign in a par- ticular way, as, for instance, by will, an assignee to whom the lease has been assigned, in the permitted way, cannot assign it in any other,^ It may be well to observe, also, . that although the condition for reentry may be discharged, the lessee will still be liable for damages on his covenant.* It was at one time held, that where there is a right of reentry upon an assignment or underletting, if a person be found on the premises appearing as tenant, it is pima fade evidence of an underletting ; and the defendant must show, whether the person was a tenant or merely a servant ;^ but Lord Ellenborough subsequently laid down a rule, which has been followed to this day, that it is not sufficient to prove the defendant a stranger, in possession of the demised pre- mises, and his declaration that they were demised to him by another stranger, even if the tenant had covenanted not to part with the possession.^ 1 Newman v. Eutter, 8 "Watts, E. 55 ; Silver v. Kenrick, 2 N. H. R. 160; Bleecker v. Smith, 13 Wend. E. 534. 2 Eichardson v. Evans, 3 Mod. E. 218 ; 2 Term R. 425 ; 3 Ibid. 590. -" Xloyd V. Crispe, 5 Taunt. E. 249. * Paul u. Nurse, 8 B. & C. 486 ; 2 Man. & Ey. 525. 6 Doe dem. Hindley v. Eickarby, 5 Esp. 4. Doe V. Payne, 1 Stark. 86. 23* 270 LAW 01" LANDLORD AND TENANT. [CH. IX. § 412. "We have before noticed, that the distinction ^yhicl^ existed in the case of a lease for years, between a clause, by which on a breach of covenant, the lease was made absolutely void, and a clause, which in such case merely gave the lessor a power to re- enter ; has been abolished in this country. In the former case, the term was held to be absolutely ended by a breach of contract, and could not be set up again by any act of waiver of the forfeiture ; in the latter, however, as the lease is merely voidable, it might, and still may be affirmed, by the acceptance of rent accrued afterwards, or other act, if the lessor had notice of the breach of the contract at the time. If, therefore, a forfeiture has been incurred by a breach of the contract of alienation, the receipt of rent afterwards will affirm the lease, and amounts to a waiver of the forfeiture, if the lessor had knowledge of the fact at the time he received the rent.^ And where, in an action of ejectment for the breach of a condition that the lessee should not underlet, in an agreement amounting to a lease, it appeared in evidence, that the lessor of the plaintiff asked the defendant what he would take for his land, and on the defendant naming a price, said, " then let it, and I shall know what it will produce next year ; " it was held, that this was a waiver of the forfeiture on a breach of such condition.^ A lessor, however, who has a right of reentry on the breach of a covenant not to underlet, does not, by waiving his right on one underletting, lose his right to reenter on a subsequent underlet- ting.^ § 413. Where this covenant has been once broken by an assign- ment, the lessor's right of action for a breach, is not affected by his accepting an assigyiment of the lease, from the assignee of the lessee.* Nor can this covenant run with the land, for the con- trary supposes an assignment, which it is the. object of the cove- nant to prevent.^ A court of equity will not, in general, relieve against a forfeiture incurred by an alienation without license.^ 1 Clark V. Jones, 1 Denio, E. 516; Roe dera. Oregon v. Harrison, 2 Term K. 425 ; Cro. Car. 511 ; 6 B. & C. 519 ; Cro. Eliz. 572 ,• Cowp. 803. ' Doe dem Henniker v. Watt, 1 Blan. & Ry. 694 ; 8 Bar. & Cr. 308. ' Doe dem. Boscawen v. Bliss, 4 Taunt. R. 735. * Hazlehm-st I'. Kenrick, 6 S. & E. 446. 5 Bally V. "Wells, 3 "Wils. R. 33. « Hill V. Barclay, 18 Yes. 56 ; Wafer v. Mocato, 9 Mod. 112. CH. IX.] THE COTENAlSra TO BUILD, ETC. 271 But in order that an assignment shall have the effect of inducing a forfeiture, the instrument must be valid and effectual in point of law ; accordingly, where there was a proviso in a lease for reentry in case of an assignment without license, and the lessee by deed, assigned all his property real and personal to trustees for the benefit of his creditors, and was afterwards declared a bankrupt ; it WEis held in England, that the deed of assignment being an act of bankruptcy and void, did not operate as a valid conveyance of the lessee's interest under the lease, and did not, therefore, work a forfeiture.^ Section VI. The Covenant to Reside on the Premises. § 414. The lessee sometimes, also, binds himself and his assigns to reside wpon the premises. This covenant will be broken by the lessee's doing any act whereby his residence may become impossi- ble ; as by suffering the premises to be taken and sold under an execution, having first confessed the judgment upon which the execution issued.^ And a lease on condition that the tenant should actually occupy, is determined by his assignees taking pos- session on his bankruptcy.^ This is a covenant running with the land, and will bind an assignee, although the executors and admi- nistrators only were named.* Section VII. The Covenant to Build after a Prescribed Pattern. § 415. Although a court of equity will not, in general, decree the specific performance of a covenant, yet a covenant that the lessee will build a house on the demised premises, to correspond 1 Doe dem. Xloyd v. Powell, 8 D. & R. 35 ; 5 B. & C. 308. 2 Dake of Norfolk v. Hawke, 2 East, E. 481. " Doe dem. Lockwood «. Clark, 8 East, E. 185. * Spencer's Case, 2 Kep. 16, a ; Tatem v. Chaplin, 2 H. Black. 133, 272 LAW OF lANDLOBD AND TENANT. [CH. IX. with the adjoining houses already built, in its elevation, is one ■which will be enforced in that court.^ But where a landlord has dispensed with a covenant in favor of one tenant, entered into for the benefit of all, such as to build in uniformity, or of a certain elevation, although the lessor may claim damages at law, he can- not have relief by injunction to restrain others, to whom he has not given such license, from infringing the covenant ; for if he thinks it right to take away the benefit of his general plan from some of his tenants, he cannot, with any justice, come into equity for an injunction against those tenants, because they are deprived of the right which he had given them, to have the general plan enforced for the benefit of all.^ If land is let to a man, on which he agrees to erect certain buildings, within a certain time, with a power of reentry to the lessor in case he fail to do so, but no lease to be granted until the buildings are completed ; the landlord may reenter, or maintain ejectment, if the buildings are not erected within the time limited.^ Section VIII. The Covenant against Carrying on Trades. ^ 416. Another covenant, not infrequently inserted in a lease, on the part of the lessee, is, that he will not carry on particular trades upon the premises, nor assign to persons carrying on such trades. Sometimes the covenant goes further, and totally pro- hibits the carrying on of all trades and business whatever. A pre- caution which often becomes very necessary, particularly in town leases, not merely for the protection of the premises from injuries which may otherwise be done to them, but likewise from their respectability being lessened, and their good-will thereby dimi- nished. Covenants of this kind, as they afiect the mode of occu- pation or enjoyment, run with the land ; and the assignee, though not named, will be liable to an action for damages, or to forfeiture 1 Pranklin v. Tuton, 5 Mod. E. 469. ' Eoper V. Williams, Turn. 18. 3 Oldershaw v. Holt, 12 Ad, & El. 590 j Doe i'. Ekins, Ry. & M. 29 ; Doe v. Brick, I M. & W. 402. CH. IX.] THE COVENANT AGAINST CAERYINGf ON TRADES. 273 on the condition of reentry, if he use the property in contravention of such an agreement.^ § 417. The general doctrine, with regard to covenants in restraint of trade, is, that all contracts which go to the total restraint of trade, as that a man will not pursue his occupation, or carry on business anywhere in the State, are contrary to sound policy, and void, upon whatever consideration they may be made. Such contracts must be injurious to the public, and no good reason can be shown why one individual should thus fetter himself, or another should contract for the restraint ; they are injurious to one party, without being beneficial to the other. Bui there may be good reasons for allowing parties to contract for a limited restraint ; and such contracts, if made on a suflScient and reasonable consideration, are valid ; yet, even then, the law pre- sumes them bad, until the circumstances inducing the arrange- ment are shown to the court to be reasonable and useful.^ This rule apphes, with great propriety, in favor of a landlord whose premises may be injured, and his general interests suffer by the carrying on of many trades and operations upon them. And, for this reason, a contract not to exercise a trade, or carry on busi- ness in a particular place, or with a particular person, will be upheld and enforced. As if the lessee covenant that he will not let the shop, yard, or other thing belonging to the bouse, to any one who shall sell coals, and will not himself sell coals there, and then let the whole house to one who sells coals, there is a breach of the covenant.^ And where a lessee covenanted not to use, or exercise, or suffer, or permit another to use, or exercise any trade or business whatever, upon the premises, and then assigned his lease to a schoolmaster, who carried on his business on 418. But in a case where the lessee covenanted that he would not do any act upon the premises which might be to the damage, annoyance, or disturbance of the lessor, or any of his tenants, or to the neighborhood, and that he would not permit any person to inhabit the premises who should carry on certain specified trades or business, (that of a licensed victualler not being one of them,) or any other business that might be offensive, or an annoy- ance, or disturbance to any of the lessor's tenants ; the court held, that the opening of a "public-house on the premises was no breach, as it did not appear that such public-house was an annoyance to the tenants, or likely to become so.^ So a covenant not to carry on the business of a common brewer, or retailer of beer, is not broken by carrying on the business of a retail brewer.^ But a covenant not to carry on the trade of a butcher is broken by sell- ing raw meat, although no animals are slaughtered on the pre- mises.^ Where several adjoining lots in the city of New York were sold to different individuals by the same proprietor, and the deeds contained a covenant against the erection of any livery- stable, slaughter-house, glue factory, or any other manufactory, trade, or business, which might be any way offensive to the neigh- boring inhabitants ; the Court of Chancery held, that such cove- nant was for the mutual benefit and protection of all the pur- chasers ; and although a previous purchaser from the original pro- prietor could not sue thereon at law, yet that a court of equity might protect him, by injunction, against the carrying on of any noxious business or trade upon the lot of such subsequent pur- chaser ; and that the business of a coal-yard upon any of the lots is a business offensive to the neighboring inhabitants, within the spirit and intent of the restrictive covenant.* § 419. If a tenant covenant not to carry on a particular trade without the written consent of the lessor, the mere fact of the les- sor's suffering the tenant to carry on one trade on the premises will not afterwards authorize his carrying on another, without a 1 Jones V. Thome, 1 B. & C. 715 ; 3 D. & R. 152. 2 Simons v. Farren, 1 Bing. K. 126. 3 Doe dem. GaskeU v. Spry, 1 B. & Aid. 617. * Barron v. Richard, 3 Kdw. R. 96; S. C. 8 Paige, 351. As to keeping a luna- tic asylum, see 6 Car. & Pa. 201 ; 2 Ad. & El. 161. CH. IX.] THE COVENANT FOR MODES OF CULTIVATION. 275 •written license.^ Where the engagement is not to trade within a given distance in a town, such distance is to be measured by the shortest way of access by the footpath. Thus, where the assignor of the lease of a public-house in London covenanted that he would not keep a public-house within the distance of half a mile from the premises assigned, it was held that the half mile, as mentioned in the covenant, imported half a mile measured, not in a direct line, but by the nearest way of access between the premises assigned and any public-house afterwards kept by the assignor.^ If a lessee exercise a trade upon the demised premises, by which his lease is forfeited, tie landlord does not, by merely lying by and witnessing the act for six years, waive the forfeiture, as some positive act of waiver is necessary ; but if he permit the tenant to expend money in improvements, to adapt them to the trade, it would seem to be evidence to be left to the jury of his consent to their bemg so occupied.^ Section IX. The Covenant for Particular Modes of Cultivation, § 420. In leases of farms, there are usually covenants as to the manner in which ike farm is to he managed ; the course of cropping, the expenditure upon the farm of the manure made upon it, and the like. These, of course, differ in different sections of the country, according to the course of husbandry adopted in them. Sometimes they are intended to enforce the custom of the country, in reference to what may be considered good husbandry ; at other times, to vary from it ; and, in this latter case, the cove- nant will, of course, exclude and supersede the custom. And, therefore, where a tenant held under the terms of an expired lease, by which it was stipulated that the tenant, on quitting the farm, should not sell or take away any of the manure in the fold, but should leave it to be expended by the landlord, or his suc- ceeding tenant, and the lease contained no stipulation as to the 1 Macher v. The Foundling Hospital, 1 Ves. & B. 182. 2 Leigh V. Hind, 9 Bam. & Cress. 774 ; 4 Man. & Ey. 579. ' Doe dem. Shepherd v. Allen, 3 Taunt. 71. 276 LAW OF LANDLORD AND TENANT. [CH. IX. tenant being entitled to payment for such manure, but, by the custom of the country, although the tenant would be bound to leave the manure in like manner, yet he would be entitled to pay- ment for it ; it was held that, as an express stipulation had been made upon the subject, the custom was thereby excluded, and that the tenant was not entitled to be paid for the manure.^ But as far as the custom is not inconsistent with the express stipula- tions in the lease, it is deemed to be impliedly grafted upon it, and to form part of the contract between the parties.^ § 421. Independent, however, of express covenants for proper cultivation, on the part of a tenant, it is held, that the mere rela- tion of landlord and tenant is a sufficient consideration to raise an implied promise, by the tenant, to manage the farm in a husband- like manner.^ And even where a tenant occupies under an agreement, which does not amount to a lease, he is liable to an action for mismanaging the farm.* § 422. The common covenants in husbandry are not the sub- ject of an equitable jurisdiction, for which a specific performance can be granted.^ But an injunction has been granted to restrain a tenant from year to year, who, it was said, was equally bound as a tenant for a longer period, to manage his farm in a husband- like manner, from removing crops, manure, etc., except according to the custom of the country.® In another case, where a tenant was enjoined from ploughing up pasture-land, the lease contained no express covenant not to convert pasture into arable land ; but the landlord was, nevertheless, held to be entitled to the injunction, on the ground of there being an implied covenant to manage pas- ture in a husband-like manner.^ Upon the same principle, the court has interfered to restrain a tenant from sowing mustard. 1 Eoberts v. Barker, 1 Cr. & M. 808. 2 Hutton V. Warren, 1 Mees. & Wels. 466 ; Hindle v. Pollett, 6 Mees. & Wels. 529. = Bailey v. Walker, 5 Term E. 373 ; Horsefall v. Mather, Holt, 7. * Tempest v. Eawlings, 13 East, 18. ^ Eayner v. Stone, 2 Edw. E. 128. ^ Onslow V. ■ , 16 Ves. 173. ■ Dury V. Molines, 6 Ves. 328. CH. IX.] THE COVENANT TO EEDELIVER FIXTUHES, ETC. 277 saffron, or other deleterious crops, as being contrary to the usual course of husbandry.^ § 423. If a tenant covenants to leave stock of a certain amount upon the premises, and a fair ground of suspicion should arise that he does not mean to perform his covenant in that respect, although compensation in damages might be had for a breach, yet the agreement having relation to the sort of enjoyment for which the landlord has stipulated, after the expiration of the term, a bill in the nature of a quia timet may be filed.^ And where a man was let into possession of a farm, and paid rent, under an agreement for a future lease for fourteen years, which was to contain a covenant (amongst others) against taking successive crops of corn from the land, and a proviso for reentry for breach of any of the covenants, but the lease was not in fact executed ; the tenant having taken successive crops of corn from the farm, which would be a breach of the covenant if the lease had been executed, the lessor brought an ejectment, and he was allowed to recover. For, until the lease should be executed, the tenant held as a yearly tenant, subject to the terms and conditions which, by the agreement, were to be embodied in the lease ; and, being guilty of a breach of one of them, the landlord had a right to reenter.^ Section X. The Covenant to redeliver Fixtures, ^c, § 424. Where fixtures, which are not part of the freehold, fur- niture, or other goods or chattels, are leased together with houses, it is usual to attach a schedule of them to the lease, and to insert a covenant by the lessee to redeliver them in good condition at the end of the term. The object of this is, to give the lessor a remedy on the covenant at the end of the term, for any damage sustained by their being injured ; for, as he cannot complain of any injury during the existence of the term, because they may be 1 Pratt V. Brett, 2 Mod. R. 62. 2 Ward V. Duke of Buckingham, cited 10 Ves. 161 ; S. C. 3 Bro. P. C. 93. = Doe V. Amey, 12 Ad. & El. 476. 24 278 LAW OF LANDLOED AND TENANT. [CH. IX. replaced before the end of it, and as the ordinary remedy by an action of trover or replevin, merely affects the recovery of the chattels, he would be without remedy for damage done to them without the insertion of such a covenant.^ 1 Wo hare noticed the covenants usually inserted in leases, on the part of the lessor as well as of the lessee ; there are others, however, which might have been mentioned, although we have considered it unnecessary to do so. In New York, a covenant to pay for improvements made by the lessee, during the continuance of his term, is of frequent occurrence. The lessor of premises covenanted, that if the lessee should erect a two-story dwelling-house, corresponding in elevation with a house already built on a part of the demised premises, he would, at the termina- tion of the lease, pay for the building so erected, at a valuation to be made by appraisers. The tenant erected a, building, which did not correspond in height with the house referred to, and was not finished as a dwelling-house, although it was capable of being turned into one with little expense ; but the lessor made no objection, although he had full knowledge of the character of the building, and did not intimate that any question would be raised as to the lessee's right to be paid for the building as it stood. It was held that the lessor, as well by his silence, when he ought to have spoken, as by his subsequent conduct, had designedly mis- led the lessee in respect to the lessor's acceptance of the building, and had thereby waived all objections which he might have made, on account of its variance from the terms of the lease. Pike v. Butler et al. 4 Barb. K. 650. When, simul- taneously with the execution of a lease for a term of years, an agreement is made, whereby the landlord stipulates that, at the end of the term, he will renew the lease or pay for the buildings erected by the tenant, and, at the end of the term, he tenders a renewal, which the tenant refuses to accept, the landlord is entitled to recover possession without paying for the buildings. Pearce et al. v. Golden et al. 8 Barb. E. 522. CH. X.] OF THE TEANSFER OF A LEASE, ETC, 279 CHAPTER X. OF THE TRANSFER OF A LEASE, AND ITS CONSEQDENCES. § 425. The rights and liabilities we have been considering, are not confined to the immediate parties to the lease, but -will be found to attach to all persons, to whom the estate may be trans- ferred, or who succeed to the possession of the premises, either as landlords or tenants. This principle follows as a necessary con- sequence of that privity of estate which is incident to the relation of landlord and tenant. Let us first observe the difierent modes of assignment ; and next, the various rights and liabilities con- nected therewith. Section I. Of Assigmnents in Fact and in Law. § 426. An assignment of a lease is the transfer of the tenant's whole estate therein, to some third person. It differs from a lease in this, that by the latter the lessor grants an interest less than his own, reserving to himself a reversion ; but by an assignment, he parts with the whole property. An assignment may reserve rent to the assignor, and the deed may contain covenants which were not in the original lease to him ; and it may even purport to convey a larger interest than the assignor himself possessed.^ But if, on the other hand, it conveys a shorter term for a less estate than the grantor had in the premises ; if even a lessee for life, grants a term of ninety-nine years, provided the life should so long continue, this is not an assignment of the freehold, but only a grant of a term ; and will, in neither case, amount to any thing more than an under-lease.^ So where the assignee of a les- see demised the premises for the residue of the term, reserving 1 Palmer v. Edwards, 1 Doug. 187, n ; Pluck v. Digges, 5 Bligh, N. S. 31 ; Baker V. Gosling, 4 Moore & S. 539. 2 Earl Derby v. Taylor, 1 East, K. 502. 280 LAW OP LANDLORD AND TENANT. [CH. X. the delivery of possession at the end thereof, and the intermediate possession in case the buildings were destroyed by fire, the demise was held to be an under-lease, and not an assignment.^ § 427. An assignment is either in fact, by the voluntary act of the parties, or by operation of law. An assignment in law occurs wherever, without a voluntary conveyance, the estate is, upon some particular event, transferred by the mere operation of law : As by marriage, where the husband acquires a right to his wife's leasehold property and other efiects ; or by the sale of a lease under an execution issued against the lessee, when the pur- chaser becomes the assignee in law of the sheriff. So where a man dies possessed of a term of years, the law vests it in his per- sonal representatives, unless he has disposed of it by will. A mere verbal assignment of a lease for years, is void under the statute, which declares, that no estate or interest in lands, other than leases for a term not exceeding one year, shall be granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party granting or assigning the same, or by his lawful agent, thereunto authorized by writing.^ Although an express assign- ment of a term of years can only exist by deed or writing, it is not necessary that such writing be under seal, even if the lease to be transferred, is a sealed instrument.^ An assignment made by the assignor, signing his name in blank, and affixing his seal on the back of the lease, to be afterwards filled up by a third per- son, which is done accordingly, is neither a deed nor a note in writing within the statute.* § 428. An assignment is usually made by the words grant, assign, and set over, but no particular expressions are necessary for the purpose, provided the intention of the parties sufficiently appears. No consideration need be expressed in it, for the liabi- lity of the assignee to pay the rent reserved by the lease, is a suffi- 1 Post V. Kearney, 2 Comst. R. 394. 2 2 N. Y. R. S. 134, § 6 ; and see Bolting v. Martin, 1 Campb. R. 318. 8 Hess V. Fox, 10 Wend. R. 436 ; Halliday v. Marshall, 7 Johns. K. 211 ; 5 Burr. 2827; 1 Campb. N. P. Ca. 318. 4 Jackson v. Titus, 2 Johns. R. 430. CH. X.] OP ASSIGNMENTS IN PACT AND IN LAW. 281 cient consideration.^ In some cases, also, a transfer will be infer- red, although an actual delivery of the instrument has not taken place ; as where a lease was sold at auction, and the purchaser paid the deposit-money, and the vendor's solicitor prepared the assignment, but would not deliver it until his fees were paid, Lord EUenborough held that the assignment was complete, although the deed had never been delivered to, or accepted by, the purchaser.^ The transfer of a mere equitable interest will not make a man. an assignee : as the delivery and deposit of a lease as security for money, without any written assignment ; for, though it may create a right in equity, it passes no interest at law.^ § 429. To constitute an assignee, it must appear that he claims through and is in of, the same estate as the person whom he suc- ceeds, for if he comes in by an elder title, he is not an assignee.* But the fact of demised premises being found in the possession of one not named in the lease, raises a presumption that he is in as assignee of the lessee, and not as under-tenant ; especially if it appear that he has paid rent to the original landlord.^ In a case of debt for rent, stating a demise of a messuage, &c. by the plain- tiif to W. H. for one year, and so on from year to year, if they should respectively please, at the yearly rent of £140, payable ' quarterly, and an assignment by W. H. to the defendant ; the plaintiff proved an agreement, (signed by himself only,) for a lease of the premises by him to W. H. for seven years, at £140 a year ; that no lease had been actually executed, but that W. H. had entered into possession shortly after the date of the agree- ment, and had paid two quarters' rent, at the rate of £140 a year ; — held, that this was sufficient evidence of a tenancy from year to year, as stated in the declaration, and in which W. H. had an assignable interest, so as to charge the defendant as his assignee.^ § 430. We have seen, that every estate or interest in lands is 1 Noy's Max. 92; 1 Mod. R. 263; 2 Ibid. 252. 2 Odell V. Wake, 3 Campb. R. 394. " Doe dem. Marliu v. Roe, 5 Esp. R. 105. * Chaworth v. Phillips, Moore, 876 ; 6 East, 289 ; 3 M. & S. 382 ; 2 Show. 57. 6 Acker v. Witherill, 4 Hill, (N. Y.) R. 112. s Braythwaite v. Hitchcock, 10 M. & W. 494. 24* 282 LAW OF LANDLORD AND TENANT. [CH. X. transferable, though the interest be future. Thus a term of years, to commence infuturo, may be assigned, for the interest is vested in prcesenti, though it does not take effect till a future time.^ Even a possibility of a term is assignable in equity for a good consideration, but not so in law ; and though a contingent interest -which a husband has in right of his wife, or the possibility of a term, is not strictly good by way of assignment, yet either will operate as an agreement, when for a valuable consideration : but it must be an assignment of that particular thing, and not rest only in intention and the construction of words in a covenant.^ A power coupled with an interest is assignable, though a bare power is not ; therefore, if a lease be made with an exception of the trees, and a power be reserved to the lessor to enter and cut them down, he may assign this power to another person ; but if it be not strictly pursued, the lessee may maintain trespass both against the lessor and his assignee. And if, in a lease for years, of lands except- ing the woods, the lessor grants the trees to the lessee, and assigns the land over to another, the trees do not pass by this assign- ment to the assignee.^ § 431. An assignment, as distinguished from an under-lease, sig- nifies a parting with the whole term ; but even if this is made over by the lessee, the rent, with a power of reentry being reserved to the assignor, and not to the original lessor, it will amount to an assignment and not an underlease ; and, in such case, the original lessor, or the assignee of the reversion, may sue or be sued on the respective covenants in the lease, even though new covenants are introduced in the assignment.* The proper covenants, on the part of an assignor, are, that the indenture of lease is good in law ; that he has power to assign ; to save the assignee harmless from former grants and incumbrances ; and for quiet enjoyment. On the part of the assignee they are, that he will pay rent, and per- form the services and covenants mentioned in the lease, or save the assignor harmless therefrom. 1 Com. Dig. tit. Assignment; Ante, 5 15, 73. 2 9 Mod. E. 102; 2 P. Wms. 608. s 2Mod. E. 317; Gob. 128. * WoUaston v. Hakewill, 3 Scott, N. E. 593 ; 1 Str. 405 ; Dong. 187. CH. X.] 05 ASSIGNMENTS IN FACT AND IN LAW. 283 § 432. Marriage is an assignment in law to the husband of the wife's chattels real ; and all her terms for years thereby become absolutely vested in him, so that he may sell, mortgage, or other- wise dispose of them without her concurrence. And they are lia- ble to be taken in execution to satisfy his debts.^ If he disposes of the wife's term, reserving rent, the rent, after his death, belongs to his executor and not to the wife.^ But if he makes no disposition of them during his lifetime, he cannot devise them by his will ; for the wife, after his death, will take the same in her own right, without administering upon her husband's estate. Yet, if he survives his wife, he takes them all by survivorship.^ But, although a husband may assign or mortgage his wife's chattels real, free from her contingent right of survivorship, it must be a valuable consideration ; for, if it be a mere voluntary/ assignment, it will not bind her if she survives him.* § 433. A devisee is an assignee in law, and, as such, liable to an action upon all covenants in the lease that concern the land, such as to pay rent and repair ; ^ and, in general, he may main- tain all such actions as the assignee of a lease ordinarily may, and which have already been mentioned.^ A lease being an inte- rest in lands which a man may dispose of by his will, such dispo- sition, of course, takes effect upon the death of the proprietor, vesting, in the first instance, in the executor, by virtue of his office ; and the legatee cannot enter without the consent of the executor ; but, if he dies without making such will, his leasehold property will go to his administrator by operation of law. At common law, if a person died seized of any species of rent in arrear, neither the heir or executor could maintain an action of debt for such rent ; the heir, because he was a stranger to the personal contracts of his ancestor, and the executor, because he did not represent his testator as to any contract relating to the freehold and inheritance. To obviate this inconvenience, it was enacted by statute 32 Hen. VIII. ch. 37, that an executor or 1 Co. Lit. 46, b; 351, a. '^ Bac. Abr. Baron & Feme, (C,) 2. 2 Co. Lit. 351, b. * Schuyler v. Hoyle, 5 Johns. Ch. K. 196. 5 Holford V. Hatch, Doug. K. 184. s Com. Dig. tit. Covenant, (B. 3.) 284 LAW OF LANDLORD AND TENANT. [CH. X. administrator of any person seized of such rents, might maintain debt against the person who ought to pay the same, and his per- sonal representatives. The Revised Statutes, in like manner, pro- vide,^ that the executors and administrators of every person to •whom any rent shall have been due and unpaid at the time of his death, may have the same remedy by action or by distress, for the recovery of all such arrears, that their testator or intestate might have had, if Uving. § 434. An executor or administrator takes, by virtue of his office, all leases for years of land, rents, or the like ; corn grow- ing or cut, trees and grass cut and severed, together with all arrearages of rent that are due to the lessor at the time of his death. So if a lease be made to a man for twenty years, with- out naming his executor, administrator, or assigns, the execu- tor or administrator shall, notwithstanding, have it during the remainder of the term.^ In the case of a tenancy from year to year, or as long as both parties please, if the tenant die without making a will, his administrator has the same interest in the land which the deceased had ; for whatever chattel interest the intes- tate had during his lifetime must vest in his administrator, as his legal representative.^ But an executor or administrator cannot have the trees and grass growing on the ground, any more than the soil or ground on which they grow ; for these belong to the heir. If a lease of land be made for life or years, whereon a house is standing, or timber growing, and the house is prostrated, or the timber cut or fallen down, no matter by what means, the materials of the house and the timber are now become a chattel ; and, therefore, if the lease be without impeachment of waste, it shall go to the lessee, and, after his death, to his executor or administrator ; but if the lease be otherwise it goes to the lessor, and, after his death, to his executor or administrator. But if the timber be cut for repairs only, or if the lessee will employ the materials of the house to build it again, and the lease continues, it may be so employed, and then the executor or administrator of the lessor may not take it.* 1 1 N. Y. E. S. 747, § 21. 2 Shep. Touch. 468 ; 4 Hen. & Munf. 57. » Doe dem. Shore v. Porter, 3 Term R. 13 ; James v. Dean, 11 Ves. E. 393 < Shep. Touch. 169,471. CH. X.] OF ASSIGNMENTS IN FACT AND IN LAW. 285 § 435. We observed that a term of years, when sold by a she- riff under an execution, takes effect as an assignment in law. If a lease is taken in execution against the landlord, the sheriff can- not turn a tenant out of possession ; ^ but it seems he may put a vendee in possession, when he sells a term in possession of the debtor.^ Upon such sale, he must execute an assignment of the lease, in writing, to the purchaser ; and if he merely puts the execution creditor in possession, the debtor may recover it again m ejectment.^ Such assignment will be valid, if made at any time subsequent to the return of the execution, provided the sale took place before the writ was returnable.* When a sheriff takes a lease and fixtures in execution, he must sell the fixtures sepa- rately if he cannot find a purchaser for the whole. ^ In making the assignment to the purchaser, he need not state the particular interest which the defendant has, for he may not be able to ascer- tain precisely what it is ; it will be sufficient to state that the defendant is possessed of a term of years yet to come and unexpired, and to assign all his interest therein generally. And, in fact, this is the more prudent way of stating the defendant's interest ; for if the sheriff should fail in his particular statement, the purchaser will not have a good title.® If the writ be against one of two partners, the sheriff may seize their joint property, although in undivided moieties ; he may, therefore, sell an undi- vided moiety, and the vendee will be tenant in common with the other partner.'' Where an outgoing tenant agreed to assign the remainder of his term, it has been held that the sheriff, before any actual assignment made, may sell the term under an execu- tion against the tenant, and put upon it the value agreed to be given by the incoming tenant.^ The purchaser becomes an assignee in law, and so liable upon the covenants in the lease ; 1 Eumball v. Murray, 3 Term E. 298. =" Taylor v. Cole, 3 Term E. 292. ' Doe dem. Hughes v. Jones, 9 Mees. & Wels. 372 ; 1 Dowl. N. S. 352. ' Doe dem. Stevens v. Douston, 1 B. & Aid. 230. 5 Barnard v. Leigh, 1 Stark. 43. " Doe dem. James u. Brown, 5 B. & A. 243. ' Haydon v. Haydon, 1 Salk. 392 ; Holmes v. Mentze, 5 Nev. & Man. 563 ; 1 Har. & "Wol. 606. * Sparrow v. Bristol, 1 Marsh. ID. 286 LAW OF LANDLORD AND TENANT. [CH. X. while the lessee continues liable, notwithstanding the lease is taken from him without his consent.^ Section II. The Eights and lAaUlities of an Assignee. § 436. A lessee, during his occupation, holds both by privity of estate and of contract. His privity of estate depends upon and is coexistent with the continuance of his term. By an assignment, he divests himself of this privity and transfers it to his assignee ; it remains annexed to the estate, into whose possession soever the lands may pass, and the assignee always holds in privity of estate of the original landlord. The privity of contract, however, is not transmitted to a purchaser, on an assignment by the lessee ; for it will, during the whole term, be obligatory on him and his personal representatives, even for breaches after an assignment and acceptance of rent by the lessor,^ except in the case of covenants in law, upon which, after an assignment of the term, an action does not lie against the assignor.^ § 437. An assignee takes the thing assigned, subject to all equities to which the original party is subject, and must therefore perform all covenants which are annexed to the estate ; for when a covenant relates to, and is to operate on, a thing in being, parcel of the demise, the thing to be done by force of the covenant is, as it were, annexed to the thing demised, and goes with the land, binding the assignee to performance, though not named. The assignee, by accepting possession of the land, subjects himself tg all the covenants that run with the land. If, however, it is a covenant concerning a thing not in esse at the time of the demise, but is to be done upon the land, as to build a new wall, the assignee will be bound, if expressly named, because he is to 1 Auriol V. Mills, 4 Term K. 98 ; I Doug. 184. 2 "Walton V. Cronly, 14 Wend. E. 64 ; Auriol v. Mills, 4 Term E. 94 ; Pot v. Jackson, 17 Johns. E. 239 ; Kunckle v. Wynwick, 1 Dal. E. 305 ; Moale v. Tyson, :3 Har. & McHen. 387 ; Buckland v. Hall, 8 Yes. E. 95. 8 Bacheloure v. Gage, Sir Wm. Jones, 223 ; Cro. Car. 188 ; Enys v. Donni- thorne, 2 Burr. 1190. CH. X.] THE RIGHTS AND LIABILITIES OE AN ASSIGNEE. 287 receive the benefit of it.^ Among the covenants to which the liability of an assignee extends, may be mentioned the covenants to repair, pay rent, taxes, or assessments, if such was the obliga- tion of the lessee ; also to permit the lessor to have free passage through the house to two rooms, which had been excepted in the lease, to cultivate the lands in a particular manner, supply the premises with a sufficient quantity of water, or not to carry on par- ticular trades.^ "§1 438. A lessee may assign his rights and interest in the pre- mises, but cannot thereby discharge himself of his express obliga- tions ; for this would be unreasonably to deprive the landlord, without his consent, of the benefit of a contract made with a par- ticular tenant, to whose care and responsibility he trusted when he granted the lease. Such lessee, therefore, remains liable upon his original contract after his assignment, and may be sued on it, either by the lessor or his grantee,^ even if the landlord has accepted the assignee as his tenant, and collected rent from him.* And the same rule holds with regard to an assignment of part of his estate ; being still liable on his covenant to pay the entire rent, for he cannot, by his own act, apportion it.^ Nor can a les- see discharge himself from the implied covenants, by an assign- ment without the consent of the lessor ; since the privity of estate between them cannot be destroyed without the landlord's concur- rence. An assent, however, may, in this case, be inferred from the lessor's receiving rent from the assignee, or recognizing him in some other way as his tenant.^ And as the assignment of a lessee by his own act will not discharge him from his express cove- • 1 Norman v. "Wells, 13 "Wend. E. 136 ; Dunbar v. Jumper, 2 Yeates, R. 74 ; Taylor v. Owen, 2 Blackf. (Ind.) R. 301 ; Plymouth v. Carver, 16 Pick. E. 183 ; Spencer's Case, 5 Eep. 16. 2 Norton v. Vultee, 1 Hall, R. 384 ; Jourdain v. Wilson, 4 B. & A. 266; Cock- son V. Cock, Cro. Jac. 125 ; 3 Wils. 32. 8 Barnard v. Godscall, Cro. Jac. 309 ; Thursby v. Plant, 1 Saund. E. 240 ; Brett V. Cumberland, Cro. Jac. 521. * Walton v. Cronly, 14 Wend. R. 63 ; Fisber v. Ameers, 1 Brown & Jol. 20 ; Cro. Jac. 399 - 521 ; Arthur v. Vanderplank, 7 Mod. E. 198 ; 1 Term E. 93. s Brown v. Hare, Cro. Eliz. 617 - 633 - 637 ; Cro. Jac. 308 ; 8 East, E. 314, n. ; Buckland v. Hall, 8 Ves. E. 95 ; 1 Ves. & B. 11. Wadham v. Marlow, 8 East, R. 316; Cro. Jac. 334-523; 1 Saund. 240, n. (5). 288 LAW OF LANDLORD AND TENANT. [CH. X. nant, so neither will an assignment by the act of the law. And, therefore, if the lease be taken from him, and sold under a judg- ment and execution. against him, he still remains liable upon all his express covenants.^ <§> 439. It is a -well-established rule of the common law, that no persons can take advantage of a covenant or condition, except such as are parties or privies thereto ; consequently, the assignee of the reversion could neither sue or be sued upon covenants con- tained in a demise, whether for life or years. This right was reserved to the grantor and his heirs, who alone might take advan- tage of a condition broken ; the assignee of the reversion being considered a mere stranger for such purposes.^ The principle seems to have followed, as a necessary consequence of the feudal law, which prevented a lord from transferring his seignory without the consent of his vassal ; for it was esteemed unreasonable to subject a feudatory to a new superior, with whom he might have a deadly enmity, without his own approbation. This consent of the tenant was expressed by what was called attorning, or pro- fessing to become the tenant of the new lord. The doctrine extended to all lessees, whether for life or for years ; and if a man purchased an estate, with a lease outstanding upon it, and the lessee refused to attorn to the purchaser, or become his tenant, the grant or contract was void, or at least incomplete. But as experience afterwards showed that property best answers the pur- poses of civil life when its transfer and circulation are entirely free, this restraint upon alienation was gradually taken off by several English statutes, and more particularly by the statute of 32 Hen. VIII. c. 34, which enabled assignees of the reversion to take advantage of such conditions, and gave the tenant the 4ike remedies against the assignee that he would have had against the assignor. By it the privity of contract was transferred, together with the privity of estate, to the assignee of the reversion ; who then stood, with regard to a tenant, in the same plight that the lessor did before he parted with the reversion. The necessity of a formal attornment, in order to complete a grant of the reversion, was finally abolished by the 11 Geo. II. c. 19 ; and both these 1 Hornby v. Honlditch, Andrews, 40 ; Anriol v. Mills, 4 Term E. 99. 2 Co. Lit. 215, a ; Mihies w. Branch, 5 M. & S. 411. CH. X.] THE RIGHTS AND LIABILITIES OF AN ASSIGNEE. 289 statutes are believed to have been generally adopted in the United States. § 440. In discussing the nature of a mortgagor's tenancy, we had occasion to observe the effect, as well as the necessity of an attornment, by a tenant to a lease made subsequent to the mort- gage. We may here further remark, as to its efifect, that after an attornment the tenant continues to hold on the same terms as he held under his former landlord ; ^ but only as tenant from year to year, unless it is expressly agreed that he shall continue f6r the same term. In such case, however, the instrument of attornment; is no longer such, but, in fact, becomes an agreement for a new tenancy.^ And where a man thus attorns tenant to another, he is not thereby estopped from disputing his title ; for he may, by mistake, have attorned to a person who has no title.® § 441. It is said, however, that so far as respects the lessee's covenants in law running with the land, the assignee's right, standing on his privity of estate, was complete at common law, independent of any statutory aid.* Thus, in the Supreme Court of New York, the broad doctrine that an assignee may maintain an action against the original covenantor, whether the immediate conveyance to him was with or without warranty, was on a review of all the cases, fully established.^ So in South Carolina, it was decided, that the assignee under a sheriff's sale, had, at common law, a right to all the advantages of ^ovenant running with the land.^ In Massachusetts, the assignee of the reversion was allowe to maintain a suit against the assignee of the lessee, upon any such covenants, without the aid of the statute.'^' And in Pennsylvania, it was held, that the assignee of a ground-rent might bring cove- nant against the tenant of the land at common law.® 1 Per Holroyd, J., in Cornish v. Scarell, 8 B. & Ci 471-476. 2 Doe V. Boulter, 6 Ad. & El. 675 ; Doe v. Smith, 8 Ibid. 255 ; Cornish v. Sca- rell, supra. " GraTenor v. Woodhouse, 1 Bingh. 38 ; Gregory v. Doidge, 3 Bingh. 474. * Willard V. Tillman, 2 Hill, (N. Y.) R. 274. 5 Witby V. Mumford, 5 Cow. E. 137 ; Kane v. Sawyer, 14 Johns. K. 89. 6 McEeady v. Brisbane, 1 Nott & McCord, R. 104. ' Howland v. Coffin, 12 Pick. R. 125; 2 Mass. R. 460; Booth v. Stow, 1 Conn. E. N. S. 244. 8 Harper v. Pisher, 1 Eawle, 155; MUes v. St. Mary's Church, 1 Wharton, 229. 25 290 LAW OF LANDLORD AND TENANT. [CH. S. § 442. The Revised Statutes of New York, now give the assignee the benefit of any agreement contained in the lease assigned ; so that an assignee, whether of the reversion or of the lease, may have the advantage of all covenants contained in the lease, whether express or implied. " The grantees of any demised lands, tenements, rents, or other hereditaments, or the reversion thereof, the assignees of the lessor of any demise, and the heirs and per- sonal representative of the lessor, grantee, or assignee, shall have the same remedies by entry, action, distress, or otherwise, for the non-performance of any agreement contained in the lease so assigned, or for the recovery of any rent, or for doing any waste, or other cause of forfeiture, as their grantor or lessor had, or might have had, if such reversion had remained in such lessor or grantor." While the next section provides, " the lessees of any lands, their assigns, or personal representatives, shall have the same remedy, by action or otherwise, against the lessor, his grantees, assignees, or his or their representatives, for the breach of any covenant or agreement in such lease contained, as such lessee might have had against his immediate lessor, except cove- nants against incumbrances, or relating to the title or possession of the premises." " The provisions of these two sections extend as well to grants or leases in fee, reserving rents, as to leases for life and for years." ^ § 443. Where a covenant running with the land is divisible in its nature, if the entire interest in different parcels of the land passes by assignment to different individuals, the covenant will attach upon each parcel pro tanto, and the assignee will be answer- able for his proportion only of any charge upon the land, which was a common burden upon the whole ; and will be exclusively liable for the breach of any covenant which related to that part alone.^ The statute extends to the assignee of part of the rever- 1 1 N. Y. E. S. 747, §§ 23, 24, 25. The assignee of an assignee, as Trell of a reversion as of the term, is now said, in the later English cases, to have the same rights, both at common law and under the statute, as the first assignee. Hornidge V. Wilson, 3 P. & D. 641 ; 3 B. & A. 396; 8 Taunt. 715 ; Fryer v. Coombs, 4 P. S;D. 120; S. C. 11 A. &. E. 403. 2 Astor V. Miller, 2 Paige, E. 64 ; Stevenson v, Lambard, 2 East, R. 575 ; Com. Dig. Covenant, B. 3. CH. X.] THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 291 sion In all the land ; ^ and to the assignee of the reversion of part of the land; 2 each of whom may have an action of covenant by virtue of the statute. The assignee or grantee of the reversion may sue, though he be not named in the lease ; ^ and if there be a second reversioner, he may, it seems, also sue for any breach aifecting the value of his interest, and each reversioner will reco- ver damages according to the extent of the interest affected.* A grantee of the reversion of part of the premises cannot, however, bring ejectment on a condition broken ; as a condition is entire, and cannot be apportioned.^ Neither can the grantor of part of the reversion take advantage of a condition; for it is destroyed by the grant, being confined to such conditions as are incident to the reversion, or for the benefit of the estate.^ § 444. An assignee is chargeable, as we have seen, only by pri- vity of estate, uj)on covenants running with the land ; and if the covenant be with the lessee and his assigns, but the thing to be done is merely collateral to the land, and does not touch or concern the thing demised in any way, the assignee will not be charged.^ As if the lessee covenants for himself and his assigns to build a house upon the land of the lessor, which is no part of the demise ; or to pay a collateral sum to the lessor, or to a stranger ; it will not bind the assignee, because it is merely collateral to, and in no manner touches or concerns the thing that was demised, or that is assigned ; and, therefore, the assignee can no more be charged with it than any other stranger.^ § 445. As an assignee is bound by covenants real annexed to the estate, so he shall have th^ advantage of such ; except where the breach has happened before his own time.® The lessor is, 1 Co. Lit. 215; Cro. Eliz. 863; 1 Saund. 241; Simpson v. Clayton, 6 Scott, 469. 2 Ibid. ; Twyman v. Pickard, 2 B. & A. 105. 3 T. Eaym. 80 ; Piatt on Covenants, 539. 4 Ibid.; 4 Burr. 2141 ; Holt, 543; 1 Taunt. 194. 6 5 Co. 55, b; 2B. &A. 109. 6 3 Kent, Com. 123. ' Spencer's Case, 5 Co. 16, b. 8 Ibid.; Cro. Jac. 438. 9 Martin u. Baker, 5 Blackf. (Ind.) E. 232; Cro. Eliz. 863 ; 2 Vern. 423. 292 LAW OF LANDLOED AND TENANT. [CH. X. therefore, liable to an assignee of the lease, on his covenants, for quiet enjoyment ; ^ for further assurance ; ^ to renew the lease, repair the premises, or the like.^ And, as a general rule, where covenants running with the land, are broken after the land has come into the possession of an assignee, such assignee only can bring an action for the damages thereupon ; * unless the nature of the assignment to him is such that the assignor is bound to indem- nify the assignee against such breach of covenant.^ For, as to such covenants, even a release by the grantee or assignee, will not operate as a discharge to subsequent assignees of the same land.^ But an assignee can only sue for breaches of covenant that occurred in his time, and not for such as were committed before the assignment, which are mere choses in action, and so not assignable.^ § 446. The title of the grantee of a reversion being complete without an attornment of the tenant, he will be entitled to all arrears of rent accrued since the execution of the conveyance, and not paid to the grantor by the tenant, in default of notice.^ But the payment of rent to the grantor, by his tenant, before notice of the grant, is binding upon the grantee ; nor will the tenant be liable to such grantee for any other breach of the condition of the demise until he shall have had notice of the grant.® To entitle an assignee to sue on the covenants annexed, he must, when his cause of action accrues, have the same estate, as was left in the lord on creating the tenure, for to that alone were the covenants annexed ; hence, if the reversion be for years, and the assignee takes a conveyance of the fee, the estate to which the covenants were annexed being 1 Noke V. Awder, Cro. Eliz. 373 ; Campbell v. Lewis, 3 B. & A. 392 ; 3 D. & R. 145. 2 King V. Jones, 5 Taunt. R. 418 ; Cro. Car. 503 ; 4 M. & S. 188. 3 Vernon v. Smith, 5 B. & A. 11 ; 12 East, R. 469 ; 3 Atk. R. 88 ; Spencer's Case, 5 Ref. 16 ; Van Horn v. Grain, 1 Paige, R. 455. * Griffin v. Fairbrother, 1 Fairf. R. 91. 6 Bickford v. Page, 2 Mass. R. 460 ; Kane v. Sooger, 14 Johns. R, 89. « Abby V. Goodrich, 3 Day, R. 433. ' Com. Dig. Covenant, (B. 3) ; Shelby v. Hearne, 6 Yerg. R. 512. 8 Birch V. Wright, 1 Term R. 378; Ruckham v. Astor, 3 Ed. Ch. R. 373 ; 1 R. S. 739. ♦ Co. Lit. 215 ; Cro. Jac. 145 ; 1 R. S. 739, § 146 j Farley v. Thompson, 15 Mass. R. 26. CH. X.] THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 293 merged, the covenants are merged in it. And if two persons are parties on the same side, to a deed of demise, — for example, mortgagor and mortgagee, — of whom one, (the mortgagee,) has a right to lease, the other, (the mortgagor,) has not ; the latter may either refuse to join with the former in demising, or by join- ing, admit his own want of title ; for the covenants by the lessee are with the latter only. And though the covenants are available by the mortgagor, being founded upon the condition that he has granted the lease, still they are mere independent contracts, and have no connection with the tenure, to which, as it only subsists between the party demising and the covenantor, the mortgagor is a stranger ; therefore, on assigning the reversion they do not pass to the assignee, but remain available by the mortgagor.^ § 447. After the lessor has parted with his reversion, he cannot bring an action for the breach of any covenant which has occurred subsequent to his grant, except on such covenants as are collateral to, and do not run with the land, for if he might, the tenant would be liable to two actions for the same thing, one in favor of the landlord, and the other of the grantee.^ But a lessor may assign the accruing rent, and the covenant for rent without the rever- sion, or the reversion reserving the rent and the covenant for rent. For rent in arrear is a chose in action, and not assignable, so as to give a right of action in the name of the assignee ; but rent to grow due is assignable, and a covenant to pay it runs with the land, and passes to the assignee, who may sue upon it in his own name.^ Rent in arrear is severed from, and forms no part of the reversion ; and does not, therefore, pass to an assignee of the reversion. But such assignee may collect all rent that falls due after his purchase, although the landlord may have assigned such rent to a third person before the sale.* And if, during a term, the lessor grants the reversion to another, the accruing rent fol- lows the grant, and he cannot recover it, although the tenant may have promised Jiim payment.® 1 "Webb V. Enssell, 3 Term E. 393 ; Stokes v. Enssell, Ibid. 678 ; 1 H. Bl. E. 562. "■ Beeby v. Parry, 3 Lev. 154; 1 Saund. E. 241, b. 3 WiUard v. Tillman, 2 Hill, (N. Y.) E. 294 ; Allen v. Bryan, 5 B. & C- 512 ; Demarest v. WiUard, 8 Cow. E. 206. * Bank of Pennsylvania v. Wise, 3 Watts, E. 394 ; 5 W. & S. 432. 6 Stout V. Kean, 3 Harr. E. 82 ; 8 Mees. & Wels. 379. 25* 294 LAW OF LANDLOKD AND TENANT. [CH. X. § 448. As between the lessor and an under-tenant of the origi- nal lessee, there is neither privity of estate nor of contract ; so that, between these parties, there can be no advantage taken of the covenants either in law or in deed; therefore, the lessor can- not sue an under-tenant upon the lessee's covenant to pay rent.^ Nor can an assignor have a right of action on any covenant in the lease against the assignee, for an assignor has no residuary inte- rest.2 But a lessee is entitled to be indemnified by his assignee against the payment of rent, and the performance of covenants in the original lease, since his liability continues although he is not in possession.^ § 449, The assignee is liable only in respect of his possession ; he bears the burden while he enjoys the benefit ; and if the whole term of years is not passed over to him, a day only being reserved by the lessee, he is not liable to the landlord at all on such cove- nants ; for he is then considered only an under-tenant, and not an assignee.* He is liable only for covenants broken while he remains possessed of the estate ;^ and although he assigns over, he is, not- withstanding, liable for all such breaches as occurred during the time of his enjoyment, because the right of action having once vested in the lessor, for breaches committed by the assignee, can- not be divested by the reassignment of the latter, although the privity of estate is destroyed between them, and a privity of con- tract never existed.^ But he is not chargeable for a breach of covenant happening after his assignment, for the privity of estate is wanting ; ^ nor, for the same reason, is he liable upon a breach which happened previous to the assignment to him. As where a lessee covenanted to build and finish a house within a certain time, 1 Quackenbosa v. Clark, 12 "Wend. R. 555; Holford v. Hatch, Dong. 183. 2 Hicks V. Downing, 1 Ld. Kay. 99. ^ Stains v. Morris, 1 Ves. & B. 8 ; Pember v. Mathers, 1 Bro. C. C. 52. * The Farmers Bank v. The Mutual Ins. Co. 4 Leigh, R. 69 ; Fulton v. Stuart, 2 Ham. R. 221 ; Holford v. Hatch, 1 Doug. 186, n. ; Milne v. Branch, 5 M. & S. 4U ; 1 Vem. E. 87 ; 1 East, E. 502 ; 2 Anst. 413 ; 15 Ves. 265. 5 Armstrong v. Wheeler, 9 Cow. R. 88 ; Pitcher v. Tovey, 1 Show. 340 ; 4 Mod. 71; 3 Lev. 295 ; Holt, 73; City of London u. Richmond, 2 Vem. R. 451; Staines (!. Morris, 1 Ves. & B. 11 ; Pot v. Jackson, supra. » Harley v. King, 2 Cr. M. & Ros. 22 ; Onslow v. Come, 2 Mad. E. 330 ; Valliant V. Dodemede, 2 Atk. R. 546; Treade v. Coke, 1 Vem. E. 165. ' Doug. 451 ; Co. Lit. 3, a, 356, a. OH. X.] THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 295 and after that time had expired, assigned the lease ; it was held, that this covenant should not bind the assignee, inasmuch as it ■was broken before the assignment was made to him ; though it would have been otherwise if the lessee had executed the assign- ment before the time specified for finishing the house had expired.^ It is otherwise, also, where there is a continuing breach ; as if there be a covenant to repair within a certain time after notice, if the lessee does not repair upon notice by the assignee, covenant lies, though it was out of repair before the assignment.^ Although an eviction out of part of the estate will discharge a lessee from the payment of any rent, the case is different with an assignee, for if he is turned out of possession of part of the premises, he must pay rent for so much of it as he has not been put out of the possession of, being liable upon his real contract in respect of the land.^ <5> 450. An actual entry upon the demised premises, by an assignee of the lessee, is not requisite in order to charge him with the performance of covenants running with the land ; for, by accepting an interest under the conveyance, he incurs all the responsibility connected with the estate, as if he had taken pos- session in fact.* The same rule applies to the assignee of an assignee ; and, whether the second assignee enter on the premises or not, is unimportant, for by the assignment the title and posses- sory right pass, and the assignee becomes sufficiently possessed to discharge the prior assignee from the burden of the covenants, and to render him liable for all breaches of covenant happening after the assignment to him.^ But a lessor cannot maintain an action of covenant for arrears of rent, against a party occupying demised premises, charging him as assignee, when in fact he never had an assignment of the lease.^ Possession, however, by 1 Cliurch-wardens of St. Saviour v. Smith, Burr. 1271 ; 1 Wm. Bl. 351 ; Salic. 199. 2 Com. Dig. tit. Covenant, (B). ^ Stevenson v. Lambard, 2 East, E. 575. * "Walton V. Cronly, 14 Wend. R. 63 ; Walker v. Eeeves, Dougl. 461, n. ; Cock V. Harris, Ld. Eay. 367 ; OdeU v. Wake, supra; Williams v. Bosanquet, 1 B. & B. 238 ; 4 Taunt. 766 ; 1 Ld. Eay. 367. 6 Walker v. Eeeves, 2 Dougl. 461 ; 1 B. & P. 21. 6 Quackenboss v. Clark, 12 Wend. E. 555. 296 LAW OF LANDLORD AND TENANT. [CH. X, the defendant, is sufficient evidence, prima fade, to charge him as assignee, for the non-payment of rent ; yet he may prove that he is not assignee.^ § 451. When the assignment is by deed, an assignee becomes liable, as such, without entry, by accepting the deed ; but if a man becomes assignee only by operation of law, he is not, in general, chargeable until he actually enters, or does some act showing his acceptance of the lease.^ But if a testator die in possession of a term of years, it vests in the executor ; and, although it be worth nothing, he cannot waive it, for he must renounce the executorship in toto or not at all.^ This, however, applies only where the executor has assets, for he may relinquish the lease if the property be insufficient to pay the rent ; yet, in case there are assets to bear the loss for some years, though not during the whole term, he may be bound to continue tenant until the fund is exhausted ; when, on giving notice to the lessor, he may waive the possession.* § 452. An assignee may discharge himself from all liahility for svhsequent breaches, both as regards the rent and other covenants, by assigning over ; ^ even though it be done for the express pur- pose of getting rid of his responsibility, and although the second assignee neither takes possession nor receives the lease. As, for instance, to a beggar ; ^ a feme covert ;'' or a person who is on the eve of quitting the country forever, provided the assignment be executed before his departure ; ^ and even although the as- signee receive from the assignor a premium, as an inducement to accept the transfer.® So if the assignment of the lease remains 1 Williama v. Woodward, 2 Wend. K. 487 ; Acker v. Witherill, 4 EiU, (N. Y.) B. 112. 2 1 Saund. HI, 203, b; Wiffiams v. Bosanquet, 1 B. & B. 238. 3 Rubery v. Stevens, 1 N. & M. 182 j Homidge v, Wilson, 3 D. & P. 641 ; 4 B. & A. 241 ; 3 Scott, N. K.'613. * Woodfall's Landlord and Tenant, 375. 5 Armstrong v. Wheeler, 9 Cow. E. 88 ; Hurst v. Eodney, 1 Wash. C. C. E. 375; 12Mod. E. 371. 6 2 Atk. E. 546; Taylor v. Shum, 1 B. & P. 21. ' Barnfather v. Jordan, Dongl. 452 ; Co. Lit. 3, a. 8 Onslow V. Corrie, 2 Madd. E. 330. ' Valliairt v. Dodemede, 2 Atk. 546. CH. X.] THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 297 in the hands of the solicitor of the assignor, who has a lien for the expenses of preparing it,^ or the lease contains a covenant not to assign. For the assignment destroys the privity of estate, which was the only ground upon which the assignee was liable ; and though the tenant's liability, on his covenant to pay rent, subsists during the continuance of the lease, there is no personal confi- dence reposed in the assignee of the lessee. But an assignment to a nonentity, or person not in existence, will be unavailable.^ And, to divest himself of all responsibility, he must assign all his estate, otherwise he will be liable pro tanto ; for covenants run- ning with the land are, as we have seen, divisible, and he would, therefore, remain liable on a covenant to repair, as to the part of the premises of which he retains possession.^ § 453. Although an assignee who assigns over is liable, both at law and in equity, to an action of covenant for rent accrued during his enjoyment,* if covenant be brought he may plead that, before any rent was due, he granted all his term to J. S., who, by virtue thereof, entered and was possessed ; and this will be a good discharge, without alleging that the reversioner had notice of the assignment. Nor can the plaintiff reply fraud in the assignment, unless he can show a trust. And this principle has been so broadly laid down, that Lord Eldon thought the only case in which a question of fraud could arise was, where the assignor had kept possession of the premises, of which he made a profit, and had made an assignment to avoid responsibility; but even there, if the possession were profitable, there would always be something on the premises for the landlord to distrain ; for which reason his lordship doubted, whether there ever could be such a thing as a fraudulent assignment, and whether an issue on such a point could ever well be taken; the defendants having, at all times, a right to divest themselves of their interest, by the mere form of an assignment, which drives the plaintiff to take pos- session.^ 1 Odell V. "Wake, 3 Campb. 394 ; 1 Saund. E. 241, c ; 8 B. & C. 486. 2 Taylor v. Shum, supra. 5 Congham v. King, Cro. Car. 221. * Harley v. King, 1 Gale, 100 ; 5 Tyr. 692 ; 2 Atk. 219. 6 1 BuU. N. P. 154 ; 4 Mod. 72 ; 12 Ibid. 23 ; Doug. 764 ; 1 B. & P. 23 ; 1 Ld. Bay. 367. 298 LAW OF LANDLORD AND TENANT. [CH. X. § 454. Where the lessee assigned his interest in demised pre- mises, by an indenture executed by both parties, " subject to the payment of the rent, and performance of the covenants and agreements reserved and contained -in the original lease ; " the assignee took possession and occupied the premises, and, before the expiration of the term, assigned to a third person, and, after the first assignment, the lessee was obliged to pay to the lessor rent, ■which the assignee had suffered to be in arrear ; it was held that the lessee could not maintain an action of covenant against the assignee, in respect to such breach, the words, " subject to the pay- ment of rent, &c.," being words of qualification, and not words of contract.^ ■ If a man lease for years, and the lessee covenant, for himself and his assigns, to pay the rent, so long as he and they shall have the possession of the thing let, and the lessee assigns, and the term expires, and the assignee continues in possession afterwards ; an action of covenant will lie against him for rent in arrear, after the expiration of the term, for though he is not an assignee strictly, according to the rules of law, yet he shall be accounted such an assignee as will make him liable to perform the covenants.^ And there is no diflerence, with respect to the executor or administrator of a lessee for years, for they may, like any other assignee, assign the term, and divest themselves of all liability upon the privity of estate, but not upon the privity of con- tract ; and so, it will be seen, may the assignees of a bankrupt lessee.3 § 455. In New York it is held that the mortgagee of a term, who has never taken possession under the mortgage, is not an assignee of the whole term, or liable for rent in arrear ; because he has not all the estate, right, title, and interest of the mort- gagor, the mortgage being but a security to the mortgagee, and the legal estate still remaining in the mortgagor.* But in Eng- land, and those States where the common-law doctrine of mort- gage exists, a contrary rule prevails ; and a mortgagee, if he has 1 Wolveridge v. Steward, in Er. 3 Moore & Scott, 561 ; 3 Tyr. 637 ; 1 Crom. & Mees. 644. 2 Bac. Abr. tit. Covenant, (E. 3.) s Auriol V. Mills, 4 Term R. 94 ; Esp. N. P. 201 ; 2 Madd. Ch. Cas. 330. * Walton V. Cronly, 14 "Wend. E. 63 ; Astor v. Hoyt, 5 Wend. R. 603. CH. X.] THE RISHTS AND LIABILITIES OE AN ASSIGNEE. 299 had the lease assigned to him as a security merely, is held to be seized of the legal estate, and is liable, as assignee, whether in possession or not.^ § 456. An assignee of a bankrupt, or the purchaser of a term of years from the sheriff under an execution, are liable for the lessee's covenants in law ; ^ but not unless they take possession, or do some act indicating an intention to accept the assignment.^ Nor will they, in such case, be liable to rent in arrear accrued subsequent to the bankruptcy, of premises which had been the bankrupt's ; * the bankrupt himself remaining liable upon all his implied covenants, and for all rent becoming due after his dis- charge.^ Under the bankrupt system of England, and according to the provisions of the bankrupt law of the United States, the discharge of a bankrupt merely had the effect of discharging him from liability for debts existing at the time of presenting his peti- tion, leaving him liable for those which might arise in future, even when called into being by contracts made before the delivery to him of his certificate.^ § 457. As a general rule, future contingent debts are not affected by a discharge, although they may grow out of contracts or transactions made before the discharge, on the broad general principle that the creditor, not being able to come in under the assignment, should not be deprived of his remedy against his debtor.^ The creditor is not barred of any of his rights, for the recovery of rent accruing subsequently, except where, in the absence of an express covenant, there has been an assignment and acceptance by the assignee. But, in cases of an express 1 "Williams v. Bosanquet, 1 B. & B. 238; 5 Com. Law R. 72 ; Flight v. Bent- ley, 7 Sim. E. 149. But see Moores v. Cheat, 8 Sim. R. 508; and 1 Beav. 112. 2 Doug. 184 ; Carter v. Warne, 4 C. & P. 191 ; 1 Mood. & M. 479. 3 1 Esp. R. 233 ; 2 H. Black. 319 ; Welsh v. Myers, 4 Campb. 368 ; Clarke v. Hume, 1 Ey. & M. 270. * Kendricks v. Judah, 2 Caines, E. 25 ; Sparhawk v. Broome, 6 Binney, 256 ; Copeland v. Stevens, 1 Barn. & Aid. 593. 6 MuiTay V. De Eottenham, 6 Johns. Ch. E. 52. « Thompson v. Hewitt, 6 Hill, (N. Y.) E. 254 ; Hall v. Fowler, 6 Ibid. 630 ; Auriol V. Mills, 4 Term R. 94. ' Buel V. Jordan, 6 Johns. E. 126; Mechanics Bank v. Capron, 15 Johns. R. 567. 800 LAW OF LANDLORD AND TENANT. [CH. X. covenant to pay rent, the prior discharge of the lessee, as an insolvent, cannot be resorted to by him as a protection against the claim of the lessor.^ When the assignee accepts the lease, the discharge of the bankrupt is complete ; and if he afterwards comes in as the assignee of his own assignee, he will incur no greater liabilities than any other person would in the same cha- racter.^ And there can be no apportionment of rent, so as to make the bankrupt liable for what accrued previous to the bank- ruptcy.^ § 458. Trustees under an assignment for the henefit of cre- ditors, are entitled to a reasonable time to ascertain whether pro- perty, held under a lease by the debtor, can be made available for the benefit of the creditors or not ; they may, therefore, offer it for sale, without incurring liability. But, in general, if they act in such a way as to render the premises of less value to the lessor, or deal with the property as if the lease were vested in them, they will, by such conduct, make themselves personally liable for the payment of rent, and performance of the covenants.* An action for use and occupation cannot, therefore, be maintained by the lessor of a tenancy from year to year, against trustees under a deed of assignment for the benefit of creditors, upon an occupation by them, for the purpose of disposing of the insolvent's property, nor unless they have actually occupied as tenants.® But in a case where the assignees of a bankrupt put up premises at auction, and found a purchaser, and received a deposit, but the contract of sale afterwards went off, without the assignees showing any reason why they did not enforce it ; it was held that, by so doing, they had sufficiently elected to take the estate and interest out of the bankrupt in the premises.^ Until some act, however, has been done, by the assignees of the bankrupt, signifying their . election to accept the lease, the term still remains in the bank- 1 Lansing v. Prendergast, 9 Mass. R. 128; Hamilton v. Atberton, 1 Ash- mead, 67. 2 Doe dem. Cheeve v. Smith, 5 Taunt. R. 800. 3 Slack V. Slack, 8 A. & E. 366. 4 Carter v. Warne, 4 C & P. 191 ; 1 Mood. & Malk. 479 ; 7 East, 335. 6 How V. Kennett, 1 Har. & "Wol. 391 ; 5 Nev. & Man. 1 j 3 Ad. & El. 659. 6 Hastings v. Wilson, Holt, 290. CH. X.] THE RIGHTS AND LIABILITIES OF AN ASSIGNEE. 301 rupt.i If the assignees refuse to accept the lease, and deliver up the deed, it amounts to a determination of the term. But, after having accepted the lease, they may rid themselves of future claims for rent by assigning over, as other assignees may .2 § 459. Executors and administrators may sue upon breaches of covenant relating to the realty, where such breaches have occurred in the lifetime of the testator, and have diminished his personal estate.^ They may, also, sue on covenants in an under- lease, carved out of a leasehold interest. Thus vrhere a person, having a term of years only, grants an under-lease, he is repre- sented, as regards the covenants therein, by his executors ; and ■whether the breaches are incurred during the lessor's life, or since his death, they are the only persons who can recover damages from the covenantor for non-performance.* Or if the lessee demise for a longer period than his own term, his executor may maintain an action for rent accruing since his decease, upon the privity of contract, though there be no privity of estate.® As an executor or administrator may regularly charge others for any debt or duty due the deceased, so shall he be charged by others for any debt or obligation due from the deceased, and which he might himself have been charged with during his lifetime, so far as there are assets of the estate with which to discharge the same. He is, therefore, chargeable with rent in arrear, at the time of the testator's death ; and if his testator had assigned the lease during his lifetime, he is chargeable with the arrearages due before such assignment, but not for those accruing after.^ § 460. As a general rule, if a man enters into a covenant run- ning with the land, as to build a house, for quiet enjoyment, or the like, and says nothing about his executors or administrators, yet are they bound to the performance of these things after his 1 Briggs B. Lowry, 8 Mees. & Wels. 729 ; 1 B. & A. 593 ; 1 Esp. 233. 2 Ex parte Nixon, 1 Eose, 445. s Ibid. 10 Bing. 51 ; Orne v. Bronghton, 4 Moore & S. 417 ; 4 Moore, 532. * Piatt on Covenants ; Mackay v. Mackretli, 2 Cliitty, 461. 6 I Bingh. N. C. 19, 284. « Sliep. Touch. 178, 483 ; Wentworth v. Cock, 2 P. & D. 251 ; Lyddall v. Dun- lap, 1 Wils. 4 ; Hyde v. Skinner, 2 P. Wms. 197. 26 302 LAW OB LANDLORD AND TENANT. [CH. X. deatli.i But the general rule is otherwise, when the contract is of a nature entirely personal to the testator or intestate, or intended to be performed by himself alone, and not to bind his representatives. As if a lessee covenants to repair, omitting other words, he is only bound to repair during his lifetime, and his executor or administrator is not bound.^ Or if a lessor cove- nants for himself to discharge the lessee of all quitrents, he is only bound during life. But, in such cases, if the words, " dur- ing the term," are added, the executor or administrator will be chargeable so long as the term lasts.^ § 461. Although an executor or administrator remains liable on the covenants of a lease, to the extent of the assets, he may, at any time, discharge himself from such liabilities, by assigning over ; for, like every other assignee, he is only personally liable for breaches of covenant during his own time. But, if he under- lets, the occupation of the under-tenant is his occupation, and he is liable as assignee of the lease.* After entry he may be charged for a breach, either in his representative character or as assignee. If declared against as assignee, he is chargeable as a tenant in actual possession, and the judgment is de bonis propriis. But in no case is he chargeable beyond the value of the land ; and if the rent reserved be of greater value than the land, the rent will be apportioned, and he will be liable only for so much of the rent as the premises are worth.^ If, however, the action is brought against him as executor or administrator, the judgment shall be de bonis testatoris, even where the breach has been committed in his own time ; for it is the testator's covenant which binds the executor, and as representing him.® § 462. The responsibility of an heir differs from that of an executor ; for he is only chargeable on his ancestor's covenant ' Tremere v. Morrison, 1 Bing. N. C. 89 ; 4 Tjx 111 ; Dyer, 14-19; Shep. Touch. 178. •'■ Ibid. ; Cro. Eliz. 553 ; 3 Wils. E. 29. 8 Marshall v. Broadhurst, 1 C. & J. 403. " Bull V. Sibbs, 8 Term E. 327 ; Hornldgc v. Wilson, 3 P. & D. 641 ; 1 Saund. E. 112. 6 Eubery v. Stevens, 1 N. & M. 182 ; 4 B. & A. 241 ; 3 D. & P. 641. 6 Bull. N. P. 159 : Cro. Jac. 671. CH. X.] THE EIGHTS AND LIABILITIES OF AN ASSIGNEE. 303 when the terms of the covenant specially provide for its perform- ance by the heir, and assets descend to him from the covenantor to answer the claim,^ unless he has actually taken possession of the land, when he may be charged as assignee.^ He is not liable, generally, on a covenant arising merely by implication of law, as on a lease, with a reservation of rent on the words yielding and paying;^ but if the heir of the lessor ousts the termor, he is enti- tled to an action against such heir, by reason of the privity of estate, upon the implied covenant of the ancestor that the lessee shall enjoy the term.* •§> 463. The heir of the lessee, as such, can have no claim to the demised premises, unless the lease be dependent upon the life of another, and granted to the lessee and his heirs. The heir will then take as special occupant, and enjoy the same benefits and remedies, as a party taking by assignment from the ancestor ; the term, however, will be chargeable in his hands, as assets by descent, as in case of lands in fee-simple ; and he will, of course, be subject to the same liabilities, in respect of the tenancy, as any other person taking by assignment from his ancestor. So a party taking a term under the lessee's will stands in the same situation, in point of right and remedy, as any other assignee ; and, in respect of the tenancy, he is subject to the same liabilities as other assignees. But the consideration of the general liability of an heir or devisee, to the debts and covenants of the ancestor or testator respectively, does not fall within the limits of this work. 1 Gifford V. Young, Lutw. 287 ; Shep. Touch. 178, 363; Co. Lit. 374, b ; Dyke V. Sweeting, Willes, 585 ; 2 Sauud. 136 ; 4 T. E. 75 ; 4 East, 492. 2 4 Term R. 75 ; 1 Salk. 355. " Newton v. Osborn, Sty. 387. * S*an V. Stransham, supra. 304 LAW OE LANDLORD AND TENANT. [CH. XI. CHAPTER XI. THE MODES OF DETERMINING A TENANCY. § 464. Having considered the various methods of creating a tenancy, together with the rights and obhgations of the respective parties thereto during the continuance of such tenancy, we, in the next place, proceed to show how and when it may be deter- mined. This results either from lapse of time, or the happening of the event, on which the estate is limited ; by means of a notice to quit ; by a forfeiture, merger, or surrender of the lease ; by the termination of the lessor's interest in the premises ; or by force of a statute. Section I. By Lapse of Time. § 465. Where the lease is for the life of the landlord, or of the tenant, or of some third person, the tenancy, of course, expires upon the decease of him on whose life the lease depends. So upon a lease for life, or for any certain number of years, subject to be defeated by the happening of a particular event, the happen- ing of such event will, ipso facto, determine the tenancy.^ And where the lease is for a definite term of years, the tenancy will, of course, expire with the term, by its own limitation, at the last moment of the anniversary of the day from which the tenant was to hold, in the last year of the tenancy.^ In all of these cases, depending on the express conditions of the lease, no notice to quit will be necessary, in order to dissolve the relation of landlord and tenant, for both parties are apprised of their rights and duties ; 1 Ludford v. Barber, 1 T. R. 86 ; Co. Lit. 216 ; Shop. Touch. 187 ; Doe dem. Jordan v. Ward, 1 H. Black. R. 79. 2 Aokland v. Lutley, 9 Ad. & El. 879. CH. XI.] NOTICE TO QUIT. 305 and the lessor may at once enter upon the lessee, at the expiration of the term.^ Section II. By Notice to Quit. § 466. A tenancy at will may be determined, either expressly or by implication. The former mode is accomplished by a demand of possession on the part of the lessor, or by a declaration of the lessee that he will hold no longer. Mere verbal declarations to this effect, however, by the lessee, will not determine the estate, unless he also waives the possession. A determination of the will of the lessor may be implied, at common law, from his exercising any act of ownership inconsistent with the nature of the estate ; as if he makes a lease of the land to commence immediately, enters upon the land and cuts timber, makes a feoffment in fee, or does any other act showing that he has determined the will.^ On the other hand, a desertion of the premises by the lessee, or any other act inconsistent with this estate, will terminate it on the part of the tenant ; as by assigning over the land to another, or the commission of an act of waste. And the same result will be produced by the death or outlawry of either party.^ § 467. A tenancy at sufferance, is determined by mere entry ; no demand of possession or other notice being necessary for the purpose.* But a tenancy from year to year, can only be termi- nated by a notice to the tenant to remove from the premises, or by a surrender in due form of law.® If, after the expiration of a'- term of years, the tenant continues in possession by consent of his landlord, the law will imply, in the absence of an express agreement, that the tenant holds the premises upon the former terms, and the parties are supposed to have renewed the previous 1 Cobb V. Stokes, 8 East, 358 ; Jackson v. Bradt, 2 Johns. R. 169 ; 5 Ibid. 128 ; Ellis V. Paige, 1 Pick. 43 ; 2 Serg. & Eawle, 49 ; 18 Maine E. 264. a Co. Lit. 55, b ; 57, a ; 2 Lev. 88 ; Ball v. Cullimore, 2 Cr. M. & E. 121 . 8 Ibid.'; 5 Co. E. 116; Ellis v. Paige, 1 Pick. 43. * Jackson v. French, 3 Wend. 337. 5 Moshier v, Eeding, 3 Eairf. 478 ; Doe dem. Eead v. Eidout, 5 Taunt. E. 519. 26* 306 LAW OF LANDLORD AND TENANT. [CH. XI. agreement for at least another year ; ^ and, therefore, it is both necessary and reasonable, that if either party should be inclined to change his mind, he should notify the other before the expira- tion of the next or any following year, of his intention to put an end to the tenancy. § 468. There are several important particulars here necessary to be observed — as, in what cases notice is necessary; when, by whom, and to whom it must be given ; its form and direction ; how it must be served ; and in what cases notice is waived. When a tenant for a year, or any other ascertained period, holds over, no notice is of course necessary, since, without some fresh agreement, express or implied, the tenancy is at an end ;2 and, therefore, as a general rule, there must be a present existing rela- tion of landlord and tenant, to entitle a party to notice. ^ But wherever a party has obtained possession of premises belonging to another for some definite period, and the owner, after the expira- tion of such period, does any act from which it may be inferred that he intends to acknowledge him as his tenant, so as to create a tenancy from year to year, or at will, such as the receipt of rent accruing after the expiration of the tenancy, the party will be entitled to notice before he can be ejected.* So, also, a tenant for years, who holds over so as to create a tenancy from year to year, without any specific act of the landlord, is entitled to notice before he can be ejected ; but the holding over must be continued for such a length of time after the expiration of the term, as to authorize the implication of an assent on the part of the landlord to such continuance. And where the landlord waited three months and twelve days before instituting proceedings, it was held, he was not chargeable with laches, especially as it appeared that he had attempted to obtain possession without recourse to coercive 1 Webber v. Shearman, 5 Hill, (N. Y.) E. 20 ; Digby v. Atkinson, 4 Campb. R. 275. 2 Logan V. Heron, 8 Serg. & Eaw. 459 ; Cob^ v. Stokes, 8 East, E. 358 ; Doe dem. Lilt v. Stratton, 4 Bing. E. 466 ; 2 S. & R. 50 ; Hamit v. Lawrence, 2 Marsh. E. 363. 3 Jackson v. Deyo, 3 Johns. E. 422. 4 Jackson v. Miller, 7 Cow. E. 747 ; Bedford v. McElheron, 2 S. & E. 49; Jack- son dem. Wood v. Salmon, 4 Wend. 327 ; Doe dem. Warner v. Brown, 8 East, E. 165; 2B. & A. 724. ^ Rowan v. Lyttlc, 11 Wend. R. 616. CH. XI.] NOTICE TO QUIT. 307, § 469. Where a party has put another into possession with a view to a future tenancy, having done no act acknowledging a regular tenancy, he cannot afterwards eject him without a demand of possession, unless some wrongful act has been done by the other party determining his lawful possession.^ Or, if he enters under a lease void by the statute of frauds ; although the receipt of rent will not estaWish such lease, it will still enure as a tenancy from year to year for all purposes of a notice to quit.^ The same result ensues where he comes into possession under an agreement for a future lease, and pays rent ; for he then becomes tenant from year to year.^ Yet, if he enters under an agreement for a lease, and continues in possession during the period for which the lease was to be granted, his tenancy ceases at the end of that time, without notice, just as it would have done if the lease had been executed.* So, also, a tenant who takes possession of more land than he is entitled to by his lease, and pays rent for the whole, is entitled to notice, as to the part not included in the lease.^ And where a defendant entered upon land with the own- er's permission in his lifetime, made improvements, and remained there fifteen years, without any reservation of rent ; it was held equivalent to a tenancy from year to year, and that the heir of the owner must give notice to the tenant before bringing eject- ment.^ § 470. The interest of a tenant from year to year is not changed by his death, but vests in his personal representatives, who, there- fore, cannot be ejected without a notice similar to that which would have been required to eject the deceased.'^ And as the statute is intended as much for the benefit of the tenant as of the landlord, if either party wishes to put an end to the tenancy, it 1 Jackson v. Kowan, 9 Johns. R. 830 ; Doe dem. Lewis v. Beard, 13 East, 211 ; 1 B. & C. 448. But see Whiteside v. Jackson, 1 "Wend. E. 418. ,, 2 Schuyler v. Leggett, 2 Cow. E. 660 ; Doe dem. Warner v. Browne, 8 East, R. 165. 3 Thomas v. Wright, 9 S. & R. 88. * Doe dem. Tilt v. Stratton, 4 Bing. R. 446. 5 Jackson u. Wiley, 9 Johns. E. 268. 5 Denn dem. Mackay v. Mackay, 1 Penn. 420 ; Jackson dem. Livingston v. Be- gan, 1 Johns, R. 322. ' Doe dem. Shore v. Porter, 3 Term R. 13 ; 6 Ibid. 295; 2 D. & R. 706. 308 LAW OF LANDLOBD AND TENANT. [CH. XI. may be done as well by notice on the part of tbe tenant, as of tbe landlord. § 471. Notice to quit is unnecessary in any case wbere the relation of landlord and tenant does not exist. Or, if the tenant has come into possession subsequent to the accruing of the title of the lessor of the plaintiff, and without his consent ; as where a tenant went into possession after a judgment had been recovered, which was a lien upon the land, notice by the purchaser under the judgment, was held to be unnecessary,^ And, if being in possession, he enters into a contract to purchase, but fails to com- plete his purchase, no demand is necessary ; for by his own act, his interest in the premises has been determined.^ So where a man had obtained possession of a house, without the landlord's _ permission, and afterwards entered into a negotiation for a lease, which failed, the same rule was held applicable.' A person who had held lands upwards of twenty years under an indenture, in which he covenanted to keep possession for the owners, and in which the owners agreed to save him harmless, was considered merely as a bailiff and not a tenant, nor entitled to notice.* So, one who held of a mortgagor under a parol contract to purchase, was not entitled to notice.^ And, although a compensation for the enjoyment of the premises has been received, yet if the rela- tion of landlord and tenant has ceased to exist, notice may be dis- pensed with.^ It seems, however, that a reasonable demand of possession is necessary where a party is let into possession under an unqualified agreement for a lease.'' § 472. As a general rule, also, to entitle a defendant to notice, 1 Bradley v. Covell, 4 Ibid. 349 ; Jackson v. French, 3 Wend. E. 337; Den v. Adams, 7 Halst. K. 99 ; Pultard v. Hilder, 1 Bara. & Aid. 782. 2 Smith V. Stewart, 6 Johns. E. 46, 69; Jackson v. Moncrief, 5 Wend. E. 26; Maynard's Lessee v. Cable, Wright, (Ohio) E. 18. s Doe dem. Knight v. Quigley, 2 Campb. 505 ; Doe dera. Parser v. Boulton, 6 M. & S. 148. * Jackson v. Sample, 1 Johns. Cases, 231 . 6 Jackson v. Stackhouse, 1 Cow. E. 122. » 3 East, 260 ; 10 Ibid. 165 ; 2 Johns. E. 75. ' 9 Johns. E. 330 ; 10 Ibid. 335 ; 13 East, 210 ; 2 Taunt. 148. In New Jersey, a notice has been held to be necessary in all cases of uncertain tenancy. Den v. Drake, 2 Green, E. 523. CH. XI.] NOTICE TO QUIT. 309 there must be at least a privity, either of contract Or of estate, between himself and the lessor ; for, where a lessee agreed to sell his lease for a certain sum, indorsed his name on it, and delivered it to the assignee, who paid him the consideration-money, and agreed to pay the rent due and to become due on the lease ; it was held to be an agreement for a sale, and that the relation of landlord and tenant did not exist between them, so as to entitle the pur- chaser to notice.^ So, if a tenant disclaims his tenancy, attorns to another landlord, permits a stranger to take possession of, or exercise acts of ownership over the premises, or is guilty of collu- sion with such person, to suffer him to take possession in opposi- tion to the landlord from -whom he has accepted his lease, the landlord may, in either case, consider him a trespasser, and need not give notice to quit.^ But if the acts of the tenant do not ■amount to a wilful disavowal of the landlord's title, the tenant is entitled to notice ; thus, a refusal to pay rent to a devisee, under a contested will, accompanied with a declaration that the tenant was ready to pay the party who should be entitled to receive it, is not of itself a suflScient disclaimer for this purpose.^ Nor is a notice required in any case of adverse possession. As where a party defended an action of ejectment as landlord, and the occu- pants suffered judgment by default, the defendant was not per- mitted to object, that the tenants in possession had not received notice to quit from the lessor of the plaintiff, who claimed ad- versely to the party under whom the tenants occupied.* And where the grantor of a lot of land remained in possession for twenty-seven years, and no act of ownership on the part of the grantee was shown; it was held, that there was no relation of landlord and tenant subsisting between the grantor and those claiming under the grantee, and that the defendant was not enti- tled to notice to quit." 1 Jackson dem. Ferris v. Fuller, 4 Johns. E. 215 ; Jackson v. Kingsley, 17 Ibid. 158. 2 Jackson v. Wheeler, 6 Johns. K. 272; 3 Ibid. 422; Doe dem. Grubbti. Grubb, 10 B. & C 816; Doe dem. Whitehead v. Pitman, 2 Nev. & M. 673. 3 Tuttle V. Reynolds, 1 Verm. R. 80 ; 3 Ibid. 26 ; 13 Peters, 1 ; 6 Johns. 272; Calvert v. Frowd, 4 Bing. R. 557. 4 Doe dem. Cheese v. Creed, 2 Moore & P. 648; Cowp. 622. 5 Jackson dem. Bowen v. Burton, 1 Wend. K. 341. 310 LAW OF LANDLOED AND TENANT. [CH. XI. § 473. If the landlord accepts aBOther person as tenant, or does any other act -which amounts to an assent on his part that there shall be a determination of the tenancy, the necessity of giving notice on the part of the tenant is dispensed -wlth.^ As, for instance, -where the landlord, in the middle of a quarter, accepted the key of the house, and, according to the lease, it had been agreed that the rent should cease upon the tenant giving up possession, no notice -was required.^ But in a case -where the tenant had quit the premises before the year -was out, and neglected to give his landlord notice, and the landlord sued for a whole year's rent, the tenant set up in his defence, that after he quit the pre- mises the landlord put up a bill in the -windo-w, and endeavored to let the house ; it -was held, that such act on the part of the land- lord -was only for the benefit of the tenant, and no evidence that the landlord thereby consented, that the tenancy should be put an end to; but that it required other circumstances to be shown, evincing conclusively that such -was the landlord's intention.^ § 474. According to the English law, a mortgagor in posses- sion, being only a tenant by sufferance, is not entitled to notice ; nor, if he lets a person into possession as tenant from year to year, is such tenant entitled to notice, either from the mortgagee or his assignee ; and this, whether the tenant has been let into possession before the assignment or after.* And the same rule prevails in Massachusetts, Connecticut, Pennsylvania, and North Carolina.^ A different rule, however, applied in New York, even previous to the Revised Statutes ; for the mortgagor was held entitled to notice before an ejectment, on the ground of privity of estate, and the tenancy at will, which existed, by implication ; although the rule did not apply to the case of an assignee of the mortgagor, because there was no privity between him and the mortgagee.^ But the whole doctrine of notice, in mortgage cases, is now entirely superseded in that State by the Revised Statutes ; 1 Graham v. Anderson, 3 Har. K. 364 j Sparrow v. Ha-wkes, 2 Esp. N. P. C. 504. =! "Whitehead v. Clifford, 5 Taunt. K. 518. = Kedpath v. Eoberts, 3 Esp. 282 ; Selw. N. P. 1289. « Keech v. Hall, Doug. E. 22; Thunder v. Belcher, 3 East, R. 448. 5 Groton v. Eoxhury, 6 Mass. E. 50 ; Eoekwell v. Bradley, 2 Conn. E. 1 ; "Wake- man V. Banks, Ibid. 445 ; Serg. & Ea-wle, 311; Den v. Bennett, 4 Iredell, 122. Jackson v. Hopkins, 18 Johns. E. 487 ; 2 Ibid. 75 ; 4 Ibid. 215 ; 4 Cow. E. 566. CH. XI.] NOTICE TO QUIT. 311 and the action of ejectment itself, by a mortgagee or Ws assigns, abolished.^ § 475. As to the time when notice must he given, the common law requires that, in all cases of a tenancy from year to year, there shall be a notice of at least half a year, not merely six lunar months, but one hundred and eighty-three days,^ or six calendar months, ending with the period of the year at which the tenancy commenced,^ before an ejectment can be brought against the tenant. This rule is said, by Chancellor Kent, to prevail in New York, Kentucky, Tennessee, North Carolina, and Vermont.* In Massachusetts, it was said, the common-law rule of six months has been adopted,^ but that, in all cases of uncertain tenancy, the parties must give to each other reasonable notice of a determina- tion of the estate ;® and in one case, a notice of sixty days was held sufficient.'^ In Pennsylvania, the notice is understood to be one of three months, in all cases ; as well without as within the statute of that State, passed in the year 1772.^ The Kevised Statutes of New York provide, " wherever there is a tenancy at will or hy sufferance, created hy the tenant, holding over his term, or other- wise, it shall only be terminated by the landlord's giving one month's notice, in writing, to the tenant, requiring him to remove therefrom. In Michigan, all estates at will may be determined by either party, by three months' written notice to the other ; and when the rent reserved is payable at periods of less than three months, the time of such notice will be sufficient, if it be equal to the interval between the days of payment. And in all cases of neglect or refusal to pay rent, due on a lease at will, fourteen 1 2 E. S. 312, § 57. 2 Gulliver v. Burr, Bl. E. 596 ; Eight v. Darby, 1 Term E. 159. s Doe V. Porter, 3 Term E. 13. * 4 Kent, Com. 113 ; Nichols w. Williams, 8 Cow. E. 13 ; Hanchet v. Whitney, 1 Verm. R. 311 ; Higgins w. Beecroft, 1 Dana, E. 30; Trousdale w. Darnell, 5 Yerg. 431 ; Den v. Mcintosh, 4 Iredell, 291. 6 Rising V. Stannard, 17 Mass. E. 287. 6 Ellis V. Paige, 2 Pick. E. 71 ; Coffin v. Lunt, 2 Ibid. 70. ' Cutler V. Winsor, 6 Ibid. 335. But now, by the statutes of that state of 1835, all estates at -will may be determined by either party, by three months' notice in writing ; and in cases of neglect or refusal to pay rent due on a lease at will, four- teen days' notice, in writing, to quit, is sufficient. 8 Logan V. Herron, 8 Serg. & Eawle, 458. 312 LAW OP LANDLORD AND TENANT. [OH. XI. days notice to quit, given by the landlord, is sufficient, in the latter State, to determine the lease.^ § 476. The notice may be given to quit on a particular day, or in general terms, at the end of the current year of the tenancy, ■which shall expire next after the end of a half year from the ser- vice of the notice. 2 The latter form of expression should always be used, when the landlord is ignorant of the period when the tenancy commenced ; and it is preferable, even when the com- mencement of the tenancy is known, as it provides against any misapprehension of the exact day when the tenant entered. For when a term of years has expired, and a new year been entered upon, the parties have a right to hold each other to the tenancy for the whole of that year, and the time required for quitting must expire with the current year. And as neither party has a right to put an end to the tenancy before the expiration of the year, so, if it go beyond that period, a new year is entered upon, and a right to enjoy it arises.^ § 477. But if a particular day is mentioned in the notice, it must be the day of the commencement, and not of the conclusion of the tenancy ; for the tenant is not obliged to quit so long as his right of possession continues, and this right is not determined until the year is fully completed. It must be the exact day of commencement ; the next, or any subsequent day, will not be sufBcient.* If even a special agreement is made between the par- ties, empowering them to determine the tenancy by a shorter notice than the one required by law, or obliging them to give one for a longer period, the notice must, nevertheless, expire at the end of the current year of the tenancy, unless some agreement to the contrary is made. Though, if it be not a tenancy from year to year, determinable at a quarter's notice, but a demise "for one year only^ and then to continue tenant, and quit at a 1 K. S. of Michigan of 1838, 22, 226. 2 Doe dem. Philips i>. Butler, 2 Esp. E. 589. ^ Savage u.Dupuis, 3 Taunt. 410 ; 3 Wils. 25 ; Jackson v. Bryan, 1 Johns. E. 322 ; Hanchet v. Whitney, 1 Verm. E. 311. * Doe dem. Spicer v. Lea, 11 East, E. 312. CH XI.] NOTICE TO QUIT. 313 quarter's notice," the notice may expire at the end, though not in the middle of any quarter.^ § 478. When the tenancy is for a short period, as for a quar- ter, a month, or a week, the length of the notice must be regu- lated by the letting, as a month's notice for a month's letting, and a weekly notice for a weekly letting ;2 but the same principle governs such a tenancy as regulates a tenancy from year to year, the expiration of the notice must correspond with the expiration of the month or week.^ Therefore, where the premises were taken- under an agreement, by which the tenant was to be always subject to quit' at three months' notice, it was held by Lord Ellen- borough, that a quarter's notice must be given", expiring at the same time of the year at which the term commenced, or any cor- responding quarterday ; * for justice and good sense require that the length of the notice should vary with the nature of the con- tract and the character of the estate. Yet if the tenant, at the time of the delivery of the notice, assents to the terms of it, it will waive any irregularity as to the period of its expiration. But the words, " I pay rent enough already, and it is hard to use me thus," do not amount to an acceptance of such notice.^ A tenant sometimes enters upon different parts of the land at different periods of the year, although all are contained in one demise ; notice must, in that case, be given with reference to the substan- tial time* of entry, that is, to the time of entry on the substantial part of the premises ; though the tenant, it is said, will be obliged to quit the particular parts only at the respective times of entry thereon.® This substantial time of entry must, in general, be determined by the times when the rent is payable ; but it has been held to depend, either upon the general custom of the country where the lands lie, or upon the relative value and importance of 1 Doe dem. Pitcher v. Donovan, 1 Taunt. 585; Kemp v. Derrett, 3 Campb. 511. 2 Doe dem. Campbell v. Scott, 6 Bing. 362. 3 Anderson v. Prindle, 23 Wend. R. 616 ; Doe dem.TParry v. Eazell, 1 Esp. N. P. C. 94 i 4 T. R. 361 ; 3 B. & C. 89. * Kemp V. Dan-ell, 3 Campb. 86. 5 Oakapple dem. Green v-. Copons, 4 Term E. 361. " Doe dem. Strickland v. Spence, 6 East, 120. 27 314 LAW OF LANDLORD AND TENANT. [OH. XI. the different parts of the demised premises ; and of these facts it is the province of a jury to determine.^ § 479. When two or more persons are interested in the pre- mises, as tenants in common, notice by one, on behalf of himself and his cotenants, will be valid only so far as his own share is concerned, unless he was acting at the time under the authority of the other parties mentioned in the notice.^ But where they are interested as joint tenants, the notice need not be signed by all ; because the act of one joint tenant is supposed to be for the benefit of his cojoint tenants. The lessee holds of all, so long as he and all shall please ; and, as soon as any one of the joint tenants gives notice to quit, he puts an end to the whole tenancy as to all.^ If they have appointed an agent, who gives the notice on behalf of all, under an authority derived from some only of the joint owners, it is sufficient, if the other owners subsequently recognize his authority.* But where joint lessors are partners in trade, notice by one, in the name of all, is good, for it will be pre- sumed he had authority from his partners.^ 4k <5> 480. Notice ly an agent of an agent is not sufficient, with- out a subsequent recognition by the principal ; ® nor by a mere agent to receive rents, unless he has authority to let as vrell as to receive.^ A receiver appointed by the Court of Chancery, with a general authority to let lands from year to year, -has also authority to determine such tenancies, by notice to quit ; for if he has power to let, he must, necessarily, have the power of deter- 1 Doe dem. Daggett v. Snowdon, 2 Black. 1224; Doe dem. Bradford v. "Wat- kins, 7 East, 551 ; Doe dem. Heapy v. Howard, 11 East, 498. " Doe V. Chaplin, 3 Taunt. 120 ; Doe v. Baker, 8 Taunt. 241. " Doe dem. Joliffe v. Sybourne, 2 Esp. 677 ; Doe t. Summerset, 1 B. & Ad. 1.35 i 2 Man. & Ry. 433 ; 3 Taunt. 120. * Goodlittle dem. King v. Woodward, 3 B. & A. 689. But see this position questioned in Doe dem. Mann v. Walters, 10 B. &, C. 621, where it is held that the agent should have his authority at the time the notice begins to operate, and that a subsequent recognition will not be suflScient. A similar doctrine is held in Right V. Cuthell, 5 East, 491. 6 Doe dem. Elliot v. Hulme, 2 Man. & Ey. 433. " Doe dem. Rhodes v. Robinson, 3 Bingh. N. C. 677. '' Doe dem. Manans v. Mizen, 2 Hood. & Bob. 56. CH. XI.] NOTICE TO QUIT. 315 mining how long he will let.^ So an officer of a corporation may give notice, without an express authority for doing so, if the cor- poration afterwards adopts the act of its officer.^ § 481. The notice must he given to the immediate tenant or his assignee.^ A lessor cannot give a valid notice to a sub-lessee, or an under-tenant to the original landlord, since there is neither privity of contract nor of estate between them.* The landlord's notice to his tenant will enable him to recover the premises against an under-tenant.^ It need not be directed to the tenant by name, provided it be personally served upon him ; ^ and, when personally served, a mistake in the Christian name will be of no importance.'^ Where the premises are in possession of two or more, as joint tenants or tenants in common, a written notice addressed to all, and served upon one only, will be good notice ; at least it raises a presumption that the notice reached the other tenant in common, although he may live at a distance.* And when the original tenant has quit the premises, and another taken possession, it will be presumed, in the absence of proof to the contrary, that the latter came in as assignee of the former, though he has never paid rent ; and it will, in that case, be suffi- cient to serve notice upon the assignee.® When a corporation is tenant, the notice must be given to the corporate name, and served upon its officers ; if addressed to the officers, it will be insufficient.^'' If the notice be given by the tenant, it must be given to his immediate landlord, or the person to whom he is bound to pay rent, or his agent, and not to the superior or head landlord. And if he makes a mistake as to the period of the tenancy, it will not have the effect of determining the lease, and 1 Wilkinson v. Colley, Burr. 2694; Doe dem. Marsack w. Eead, 12 East, 57-61. 2 Doe dem. Dean of Eochester v. Pierce, 2 Campb. B. 96. 3 Doe V. WiUiams, 6 B. & C. 41. « Pleasant v. Benson, 14 East, 234 ; Koe v. "Wiggs, 2 N. E. 330. 6 Eoe 0. "Wiggs, 2 N. E. 330 ; 2 Bos. & Pul. 230 ; 3 Taunt. 95 j Jackson v. Baker, 10 Johns. E. 270. « Doe dem. Matthewson v. Wrightman, 4 Esp. E. 5. ' Doe V. Spiller, 6 Esp. E. 70. ' Doe dem. Bradford v- Watkins, 7 East, 551 ; 3 Smith, 517 ; 5 Esp. E. 196. 9 Doe dem. Morris v. Williams, 6 B. & C. 41 ; 6 M. & S. 110. 10 Doe dem. Earl of Carlisle v. Woodman, 8 East, 228. 316 LAW OE lANDLORD AND TENANT. [CH. XI. the tenant himself may take advantage of the defect. Such notice is not good as a notice to quit, nor does it operate as a sur- render, inasmuch as it is to take effect in future?- § 482. At common law, the notice might be verbal, unless a written one was made necessary by agreement of the parties. But the statute cited requires the landlord'' s notice to be in writ- ing ; and, therefore, a mere verbal request from the landlord to the tenant to quit, before the end of the term, will not put an end to a tenancy, at will or by sufferance.^ And as a tenancy from year to year cannot be determined, unless by a legal notice, or a surrender in due form of law, a mere parol license to quit, and the tenant's leaving the premises accordingly, will not determine the tenancy ; for this would amount to a surrender, which, under the statute, must be in writing.^ § 483. The notice must be explicit and positive ; in the words of the statute, it must require the tenant to remove from the pre- mises. It should not, therefore, in any case, give the tenant the option of leaving the premises or not, by entering into a new con- tract on certain conditions. But a notice " to remove, or I shall insist on double rent," has been held good; because the latter evidently refers only to the penalty inflicted by the statute, in case the tenant still continues to hold over. In this case, how- ever, it was said, by Lord Mansfield, that if the notice had con- tained the option of a new agreement, as, for instance, " remove, or else that you agree to pay me double rent," it would not hav« been sufficient.* In case there should be an obvious mistake in some part of the notice, but yet, upon the whole, it is so certain and direct as to make it impossible that the person receiving the notice should have been misled by it, it will be good. As, for instance, where the landlord gave his tenant notice in the follow- ing form : " I hereby give you notice to remove from the pre- mises which you hold of me, situated in the parish of St. Anne, 1 Doe dem. Milward, 3 Mees. & WeU. 328. 2 Timmius v. Bowlinson, Burr. 1603 ; Black. K. 533 ; Doe u. Crisp, 5 Esp. 196; 2 Campb. 96. 3 MoUett V. Brayne, 2 Campb. 103 ; 2 Stark. 378 ; 2 Man. & By. 439. * Doe dem. Matthews v. Jackson, Dong. 175. CH. XI.] NOTICE TO QUIT. 317 called The Waterman^s Arms" when, in fact, the only premises which the tenant held of him were called the " Bricklayer's Arms ; " in this case, upon its being shown that there was no sign of the Waterman's Arms in the parish of St. Anne, that the tenant held no other premises of the plaintiff but " The Brick- layer's Arms," and, that, therefore, the tenant could not possibly have been misled by the mistake, the notice was held sufficient.^ The notice must include all the premises held under the same demise ; for a landlord cannot determine the tenancy as to part of the thing demised, and continue it as to the residue.^ But where they were described as of a wrong parish, the court, after verdict, held it to be immaterial ; as the defendant did not show that he held any other premises of the plaintiff, or that he was misled by the notice.^ And if the tenant misleads the landlord, by giv- ing him wrong information, he will be bound by it ; and Lord Kenyon held, in the case referred to, that it made no difference whether the information so given proceeded from mistake or design, as it had equally the effect of leading the landlord into error.* § 484. According to the English cases, when personal service cannot he effected, it will be sufficient if notice is left with the wife, or a servant of the tenant, at his usual place of residence, whe- ther upon the demised premises or elsewhere, and its nature and contents explained at the time.^ The Revised Statutes of New York direct, that it " shall be served by delivering the same to the tenant, or to some person of proper age residing on the pre- mises ; or, if the tenant cannot be found, and there be no such person residing on the premises, such notice may be served by affixing the same on a conspicuous part of the premises, where it may be conveniently read." " And, at the expiration of one month from the service of such notice, in the manner above speci- fied, the landlord may reenter, or maintain his remedy of eject- 1 Doe dem. Cox v , 4 Esp. K. 185 ; 7 Term E. 63 ; 4 D. & R. 248. ^ Doe dem. Eodd v. Archer, 14 East, E. 245 ; 4 B. & A. 588 ; 8 Bing. 235. s Doe V. Wilkinson, 12 Ad. & EI. 743. < Doe dem. Eyre v. Lambly, 2 Esp. 635. ^ Jones dem. Griffiths v. Marsh, 4 Term E. 464 ; Doe dem. Bradford v. Watkins, supra; Doe dem. Neville v. Dunbar, 1 M. & M. 10 ; 4 N. & M. 42. 27* 318 LAW OF LANDLORD AND TENANT. [CH. XI. ment, or proceed in any other manner prescribed by law, to remove tte tenant, without any further or other notice to quit. § 485. But the notice may be waived ; for after the landlord has given notice, and the time has expired, he may do some act which amounts to a waiver of it, and thereby recognize a new or subsisting tenancy. As if he receives rent as such,^ or distrains for rent which has accrued after the expiration of the notice, Ins notice will be considered as waived, and the tenancy reesta- blished.s But it seems that a pending action, for use and occu- pation, will not invalidate the notice ; for the landlord may only recover in his action rent due at the time of the expiration of the notice, although he may claim rent to a later period.* So where rent is usually paid at a banker's, if the banker, without any spe- cial authority, receives rent accruing after the expiration of the notice to quit, it will not so operate.^ Nor is a promise not to turn the tenant out of the farm, unless it should be sold, given after notice to quit, a waiver.^ The mere acceptance of money by a landlord, for occupation subsequent to the time when the tenant ought to have quitted, according to the notice given him for that purpose, is not of itself a waiver of such notice on the landlord's part, but matter of evidence only, whence a waiver may or may not, according to circumstances, be inferred. And, in all cases, it is for the jury to determine whether the money received was received as rent ; for whether it shall be a waiver of notice depends upon the intention of the parties, which is a matter of fact to be left to a jury.^ § 486. The notice, also, may be waived, hy giving a subsequent notice to the same effect ; because the latter notice is an acknow- 1 1 R. S. 745, § 8, 9. 2 Goodright dem. Charter v. Cordwent, 6 Term R. 219. 3 Prindle v. Anderson, 19 Wend. E. 391 ; Zouch dem. "Ward o. WiUingdale, 1 H. Black. 311. * Per BuUer, J., Birch v. Wright, 1 Term R. 378 ; Sel. N. P. 650 ; Jackson v. Stafford, 2 Cow. R. 547 ; Boggs v. Black, 1 Binn. 333. 6 Doe V. CalTcrt, 2 Campb. N. P. C. 387. « Whiteacre v. Symonds, 10 East, R. 13 ; Doe dem. Williams v. Humphreys, 2 East, 236. ' Doe dem. Cheney v. Batten, Cowp. R. 243; Doe dem. Eeapy v. Howard, 11 East, 498; 3 Campb. 115 ; 3 Taunt. 54. CH. XI.] NOTICE TO QOTT. 319 ledgment that the tenancy still subsists, after the expiration of the notice first served.^ But if it is manifest that the second notice to quit is not intended as a waiver of the first, it -will not so ope- rate. As, where a second notice was given after the expiration of the first notice, and after the commencement of an ejectment suit, in which the landlord continued to proceed ; notwithstanding his second notice, it was held to be no waiver of the original notice ; because it was impossible for the tenant to suppose that the landlord meant to waive a notice, upon the foundation of which he was proceeding to turn him out of the farm. The party giving a subsequent notice may also express his intention that it shall not operate as a waiver of his first notice, and then the first notice will stand good.^ In an action, however, for double rent, the defendant was tenant to the plaintiff' under a demise for three years, from Whitsuntide, 1781. Two months previously to Whit- suntide, 1784, plaintiff gave him notice to quit at that time. After the expiration of the notice, on 8d June, 1784, the plaintiff gave him another notice to quit at Martinmas following, or pay double rent. It was held, by Lord Mansfield, that the first notice was not waived by the second, for that, when a term is to end on a precise day, there is no occasion for a notice to quit ; that here it ended at Whitsuntide ; that the meaning of the first notice was, that if the tenant did not quit the landlord would insist on double rent, and the second notice only expressed what was meant by the first.^ So where, after the expiration of a notice to quit, the landlord gave the defendant a fresh notice, that unless he quit in fourteen days, he would be required to pay double rent. Lord EUenborough held there was no waiver of the first notice.* A tenant held under a demise from the 26th day of March, for one year then next ensuing, and so from year to year, for so long as the landlord and tenant should respectively please ; after having held more than a year, the tenant gave notice, less than six months before the 26th day of March, that he would quit on that day, and the landlord assented to the notice ; it was held that the tenancy was not thereby determined, there not having 1 Doe dem. Brierly v. Palmer, 16 East, R. 53. ^ Doe dem. Williams v. Humphreys, 2 East, E. 237. ^ Messenger v. Armstrong, 1 Term R. 53. * Doe dem. Digby v. Steel, 3 Campb, 117 ; Doe v. Inglis, 3 Taimt. 54. 320 LAW OF LANDLOKD AND TENANT. [CH. XI. been either a sufficient notice to quit, or a surrender in writing, or by operation of law.^ So where a landlord, about to sell his premises, gave notice to the tenant to quit on the 11th October, 1806, but promised him not to turn him off unless they were sold, and, not being sold until February, 1807, the tenant refused, on demand, to deliver possession ; on ejectment, the court held that the promise, which was performed, was no waiver of the notice, nor operated as a license to be on the premises, otherwise than subject to the landlord's right of acting on such notice, if neces- sary ; and therefore that the tenant, not having delivered up pos- session on demand, after the sale, was a trespasser from the expi- ration of the notice to quit.^ § 487. At the expiration of the notice, the landlord is in pre- cisely the same situation as he would be at the end of the year, provided the tenancy had been for a year ; if, therefore, he omits to commence proceedings to eject the tenant at the termination of the notice, for any considerable space of time, or again collects rent, he must give fresh notice before he can take proceedings ; for the expiration of the notice is equivalent to the expiration of a lease, and, after this time, a new tenancy will be considered as having commenced.^ Section III. By Forfeiture. § 488. The relation of landlord and tenant is also dissolved, when the tenant incurs a forfeiture of his lease, in consequence of a breach of some condition therein contained, and the landlord enters thereupon. If the tenant does any act inconsistent with, his character as tenant, — as if he impugns the title of his lessor, affirms, by matter of record, the fee to be in a stranger, claims a greater estate than he is entitled to, or aliens the estate in fee. 1 Johnstone v. Huddlestone, 4 B. & C. 922. 2 "Whiteacre dem. Boult v. Symonds, 10 East, 13 ; Doe v. Sayer, 3 Campb. N. P. C. 8 ; 2 Car. & P. 348. 8 Eowan v. Lytle, 11 Wend. K. 616, CH. XI.] FOBFBITURE. 321 by any mode of conveyance which has the effect of devesting the estate of the reversioner, as by a feoffment, or other common-law conveyance, — according to the common law-doctrine, a forfeiture will be thereby incurred, and the landlord may reenter upon him and resume possession.' The Revised Statutes of New York, however, have taken away some of these grounds of forfeiture, by providing that no conveyance, by a tenant for life or years, of a greater estate than he possessed or could lawfully convey, shall work a forfeiture, or be construed to pass any greater interest than the grantor possessed ; but such conveyance shall pass to the grantee all the title, estate, or interest, which such tenant could lawfully convey .^ And this provision is said, by Mr. Chan- cellor Kent, to have been introduced, generally, into the statutes of the several States.^ But a tenant was not, at common law, necessarily incapacitated from continuing to hold possession under a, written lease, merely because he had, by parol, asserted an adverse claim to the premises, to be vested in himself, without actually renouncing the relation of tenant.* And, even before the Revised Statutes, it was held in New York that a tenant for life did not forfeit his estate by granting in fee ; ^ for, under the statute of uses, any conveyance in the nature of a grant could pass nothing but what a grantor might lawfully convey ; but, since then, it has been expressly decided that no form of conveyance can work a forfeiture.® >5> 489. The forfeiture of a term generally occurs, in conse- quence of a breach of some stipulation in the contract, under which the tenant occupies the demised premises. The common- law notion of a forfeiture was founded on strict feudal principles, and has been ascertained to be not only inapplicable to the pre- sent state of society, but unjust in many respects. Hence the stipulation, giving the power of reentry to the landlord, is strictly construed ; and, in order to enforce it, there must be such 1 Co. Lit. 251, b; Read dem. Errington, Cro. Eliz. 321 ; Fern dem. Matthews V. Smart, 12 East, K. 444 ; Goodright dem. Waters v. Davids, Cowp. R. 003. 2 1 R. S. 739, §.143. 8 4 Kent, Com. 104. * Rees V. King, Forrest, Exch. E. 22 ; Coop. 92. ^ Jackson v. Mancius, 2 Wend. R. 357. « Grout V. Townsend, 2 Hill, R. 554. 322 LAW OF LANDLOKD AND TENANT. (^CS. XI. a breach shown, as it was the clear and manifest intention of the parties to provide for.^ Where a lease contained a proviso for a reentry, if the tenant should make default in performance of any of the covenants therein ; it was held to extend only to affirma- tive covenants, and not to those of a negative character, for they were not to be performed.^ So where a lessee covenanted to pay the rent, and not to assign without leave of the lessor, and there was a proviso for reentry if the rent should be in arrear, or if all or any of the covenants thereinafter contained, on the part of the lessee, should be broken, but there was, in fact, no covenant on the part of the lessee contained in the lease, subsequent to the proviso, and merely one by the lessor that, upon the lessee paying the rent, and performing all the covenants hereinbefore contained on his part to be performed, he should quietly enjoy, &c. ; the court held, that the lessor could not reenter upon a breach of the covenant not to assign, for the proviso was restrained, by the word hereinafter, to subsequent covenants ; and, although there were none, the court would not reject the word.^ And a proviso, that the lessee shall not " do, or cause to be done, any act, matter, or thing, contrary to and in breach of any of the covenants," has been held not to apply to a breach of a covenant to repair ; the omission to repair not being an act done within the meaning of the proviso.* So, also, a deposit of a lease with another, as secu- rity for money advanced, is not a forfeiture under a condition not to assign.^ But insolvency is a voluntary act, and creates a for- feiture under such a condition, although bankruptcy does not.^ ■J- 490. Where a right of reentry is reserved, in case the lessee commits waste, it is generally construed to mean such waste as may be injurious to the reversion, and not merely such as might be given in evidence under the old writ of waste, unless there be some stipulation in the lease to the contrary. And where a lease contained a proviso for reentry, if the lessee should commit waste 1 Baxter v. Lansing, 7 Paige, E. 350 ; Doe dem. Earl of Darlington v. Bond, 5 B. & Cress. 855 ; Clark v. Jones, 1 Denio, 516. 2 Doe V. Marchetti, 1 B. & Ad. 715. = Doe V. Godwin, 4 M. & S. 265. ' Doe V. Stevens, 3 B. & Ad. 299. 6 Doe V. Hogg, 4 D. & R. 225 j 1 Car. & P. 160. 6 Shee V. Hall, 43 Yes. 404. CH. XI.] FORFEITUEB. 323 to the value of ten shillings, and the lessee, having pulled down some old buildings of more than that value, and substituted others of a different description, the lessor brought his action of eject- ment for a forfeiture ; it was held, that the waste contemplated by the proviso was waste producing an injury to the reversion, and that it was a question for a jury, under all the circumstances, whether such an injury, to the value of ten shillings, had been committed.^ So it has been held in New York, that the whole of the demised property is not forfeited under such circumstances, but only so much thereof as waste may have been committed upon.^ § 491. Still, however, a condition is indivisible, and the con- ditions of a lease do not become severed by a severance in the occupation of the demised premises, and in the payment of rent to the lessor by the respective occupants, for the portion occu- pied by each. Hence, if either a lessee, or an assignee of the lease as to a portion of the premises, commits any act which, by the terms of the lease, creates a forfeiture of the estate, the for- feiture attaches to the whole of the premises embraced in the lease. As where a lease contained a covenant, on the part of the lessee, that he would not cut or destroy any part of the timber and wood growing on the demised premises, except for making or repairing buildings to be erected on the land, and for necessary fencing, and fuel for one dwelling-house, with a clause of reentry by the lessor, for a breach of any of the covenants by the lessee ; and it was proved, in an action of ejectment brought by the lessor against the lessee, that the latter had cut trees and timber for purposes not authorized by the lease ; it was held that the lessee could not escape the consequences of the forfeiture incurred by such act, on the ground that he had procured his firewood and fencing-timber from other land, and that he had not withdrawn from the demised premises more wood than the lease authorized him to take, although he had used it for other purposes.^ § 492. Not only may the lessor reenter for a forfeiture, but his 1 Doe V. Bond, 5 B. & C. 855. 2 Jackson v. Tibbets, 3 Wend. E. 341. ' Clarke v. Cummings, 5 Barb. E. 339. 324 LAW OF LANDLOBD AND TENANT. [CH. XI. heir or executor may also reenter, -when entitled to the rever- sion ; and we have seen when an assignee of the reversion may enter for a condition broken. But it is entirely optional with the lessor whether he will avail himself of this right of reentry or not, although, by the terms of the proviso, the term is to cease, or become void, for the non-performance of the covenants ; and if the lessor does not avail himself of it the term will continue, for the lessee cannot elect that it shall cease or be void.^ There was, however, a distinction formerly drawn, between leases that were void upon a breach of condition and such as were voidable only. In the case of a lease for lives, if the lessee was guilty of any breach of the condition of reentry, the lease was only void- able, although, by its express terms, it was to become thereby absolutely void ; and the landlord might waive his right to reenter, by the acceptance of rent, or of some other act, which amounted to a dispensation of the forfeiture. But, upon the breach of such a condition in a lease for years, the lease became iipso facto void, and no subsequent recognition could set it up again. Yet if the condition, in such case, was merely that the lessor might reenter, the lease was voidable only, and might be affirmed by an acceptance of rent, if the lessor had notice of the breach at the time.^ But the force of this distinction has been almost, if not quite, abated by the modern decisions, which esta- lish Ihat the effect of a condition, making a lease void upon a cer- tain event, is to make it void* at the option of the lessor only, in cases where the condition is intended for his benefit, and he actually avails himself of his privilege.^ In conformity with the English cases, Mr. Chancellor Walworth held, that although, by the condition of a lease, it is provided that if any of the cove- nants, on the part of the tenant, are broken, the unexpired term shall cease and determine, if the lease also contains the clause, that, in case of the non-performance of such covenants, the land- lord may reenter, the lease is voidable only at the election of the landlord, but not at the option of the tenant.* The Supreme 1 Arnsby v. Woodward, 6 Bar. & Cres. 519 ; Eede v. Tarr, 6 M. & S. 121. 2 Jackson v. Andrews, 18 Johns. E. 431 ; Co. Lit. 215, a; Pennant's Case, 3 Co 64, a; 1 Saund. E. 287, b; Chalker v. Chalker, 1 Conn. E. 79. s Doe V. Bamiks, 4 B. & Aid. 401 j Daken v. Cole, 2 Euss. 170; 1 Nev. & M. 443 ; 1 M. & "W. 402. * Stayvesant v. Davis, 9 Paige, E. 427. CH. XI.] FOEFBITUEE. 325 Court of New York, in fact, expressly declare that the old doc- trine no longer prevails ; and that, in relation to leases for years as well as for life, the happening of a cause of forfeiture only renders a lease void as to the lessee ; that the lessor may affirm it, and then the rights and obligations of both parties will con- tinue, without regard to the forfeiture.^ § 493. At common law, when a forfeiture was sought to be enforced for the non-payment of rent, there was no distinction made between cases where there was a sufficient distress upon the premises, and where there was not. In every case, before a landlord could enter for the non-payment of rent, he must make a formal demand of the precise rent due for the last current quar- ter, and if the demand included any portion of the rent of a pre- vious quarter, it would be bad.^ By the same law, it must also be made on the day it becomes due, at a convenient time before sunset ; ^ at the place where, by the terms of the lease, it is made payable ; or, if there be no place mentioned in the lease, at the most notorious place upon the land, which, if there be a dwel- ling-house, is the front door.* Although the lessee may seek the lessor at any time during the natural day, that is, before twelve at night on which the rent becomes due, and make a personal tender of the rent, in order to save the forfeiture.^ If the rent is payable at any specified place, the tender must be made at that place.® But if no place is mentioned, it is enough if the lessee be upon the land with the money, or the specific articles, (if the rent be payable in kind,) ready to pay if demanded.'^ § 494. The same strict proof is still required of a landlord reentering for a forfeiture, in all cases where there are sufficient 1 Clark V. Joriss, 1 Denio, 516. See, also, Arnsiy v. Woodward, 6 iB. & C. 519; Eeed v. Parsons, 2 Chit. E. 247 ; Roberts v. Davey, 1 Nev. & Man. 443. 2 Doe dem. Wheeldon v. Paul, 3 C. & P. 613 ; Van Eensselaer v. Jewett, 2 Comst. E. 147. 8 Jackson v. Harrison, 17 Johns. E. 66 ; Duppa v. Mayo, 1 Sannd. E. 287. * Connor v. Bradley, 1 Howard, R. 211 ; Co. Lit. 202, a ; Clun's Case, 10 Eep. 129, a ; 1 Leon. 141 ; Cro. Eliz. 209 ; 1 Saund. 287. 6 Burrough v. Taylor, Cro. Eliz. 263. 6 Lush V. Druse, 4 Wend. E. 313 ; Eemsen v. Conklin, 18 Johns. E. 450. ' 16 Johns. E. 222 ; 3 Kent, Com. 468. 28 326 LAW OF LANDLOED AND TENANT. [CH. XI. goods upon the demised premises, from wliich he might have real- ized his rent by a distress, if he had thought proper. But the statutes have now substituted the service of a declaration in eject- ment for a formal demand of rent, in cases where a half year's rent is due, and no suflScient distress can be found upon the pre- mises to satisfy the rent.^ And a recent statute of New York, abolishing distress for rent, not only dispenses with the formality of a demand, but gives a right of reentry, in cases of forfeiture for the non-payment of rent, after the service of fifteen days' notice to quit upon the tenant, whether there be sufiScient goods upon the premises or not.^ It is to be observed, however, that this right of reentry, constituting a forfeiture for the non-payment of rent, cannot exist except where it is expressly so stipulated in the lease.^ ^ 495. When a tenant has forfeited his lease, by a breach of the covenant for the payment of rent, courts, both of law and equity, consider the clause of reentry to be mainly inserted for the landlord's security, and will interfere in the tenant's behalf, although all the formalities of a common-law demand may have been complied with ; upon his satisfying the rent due, and any damages -which the landlord may have sustained in consequence of this omission.* And, in general, a court of equity -will relieve the tenant from a forfeiture, where it has been incurred by neg- lecting to pay any certain sum of money,- the interest upon which can be calculated with certainty, and the landlord thereby com- pensated for the inconvenience he may have sustained by the tenant's withholding the payment.^ The Kevised Statutes of New York secure a remedy to the tenant, in cases of forfeiture for non-payment of rent, by permitting him, at any time within six months after a landlord obtains possession of the premises, to tender to the lessor, or his attorney, the rent due, with costs, and all further proceedings are then to cease ; the premises are to be 1 2 E. S. 505, § 30 ; 4 Geo. II. c. 28. 2 Laws of 1846, p. 369. " Van Rensselaer v. Jewett, supra. * Phillips V. Doelittle, 8 Mod. E. 345 ; 1 "Wils. R. 75 ; Black. R. 746 ; 10 Yes. 6, 7 ; 12 Ibid. 475 ; 16 Ibid. 405 ; Lovat v. Lord EanelagU, 3 Ves. & B. 24. ^ Jackson v. Brownson, 7 Johns. E. 235 ; Nelson v. Carrington, 4 Munf. E. 332 ; Bracebridge v. Buckley, 2 Price, E. 200; Baxter v. Lansing, supra. CH. XI.] FORFEITTmE. 327 forthwith redelivered to the lessee, who will hold the same with- out any new lease, and according to the terms of the original demise. But if no such tender is made within the six months, the lessee, and all persons deriving title under him, will be barred from all relief in law or equity, and the premises will be thenceforth discharged from the lease.^ It would seem, however, that the actual tender or payment of money may, in some cases, be dis- pensed with ; for, in a case where there had been various dealings between a landlord and his tenant, so as to produce an account too complicated to be taken at law, and the landlord brought an ejectment for the non-payment of rent, and the tenant filed a bill for an account upon those dealings, and to have the balance applied to the liquidation of the rent due. Lord E-edesdale held that, upon such a bill, there was no necessity for the tenant to bring the rent into court.^ But if the question, whether rent be due or not, is not too complex to be tried at law, and there is no occasion for a bill of account, the tenant will not be restored to possession without paying the money into court.^ "^ 496. The doctrine of compensation ■will not apply in any case where the landlord's damages are not a mere matter of com- putation ; and, therefore, if it is stipulated in a lease that the les- sor shall reenter, in case the lessee makes an assignment without permission of the landlord, the breach of such agreement is a cause of forfeiture, against which the court will not grant relief.* Or if a tenant, being under a covenant to keep the premises insured, neglects to do so, and, by the terms of the lease, such neglect or refusal operates as a forfeiture, a court of equity will not interfere ; for, as it is impossible to estimate in damages the amount of risk run, by not insuring, the effect of giving relief in such a case would be, that a tenant might break this covenant ■with impunity, and every landlord must take his tenant for insurer, for want of power to enforce his covenant.® The same 1 2 E. S. 505, § 28. 2 O'Connor v. Spaight, 1 Sch. & Lef. 305 ; 2 Ibid. 403. 3 O'Mahoney v. Dickson, 2 Sch. & Lef. 400. * Lovat V. Lord Kanelagh, 3 Yes. & B. 29 - 31 ; Sanders v. Pope, 12 Yes. 291 ; 2 Ch. Cas. 127. 5 Bolfe V. Harris, 2 Price, K. 206, n. ; Reynolds v. Pitt, Ibid. 212, n. ; "Wliite v. Warner, 2 Meriv. 459 ; 19 Yes. E. 134 ; 4 Sim. 96 ; 5 Ibid. 65. 328 LAW OP LANDLORD AND TENANT. [CH. SI. principles apply to cases •where the tenant neglects to repair ; ^ or has made a way through the premises, contrary to his express covenant ; ^ exercises a forbidden trade ; ^ or cultivates the land in a manner prohibited by the lease.* But courts of equity are only closed against the tenant, where the forfeiture is incurred by his wilful and culpable neglect to fulfil the terms of his covenant ; and not in cases where the omission has been occasioned by inevi- table accident. And the rule to be applied to all cases, (except that of forfeiture for non-payment of rent,) now seems to be, that courts of equity will relieve where the omission, and consequent forfeiture, are the result of mistake or accident, and the injury and inconvenience arising from it capable of compensation ; ^ but where the transgression is wilful, or the compensation impractica- ble, they invariably refuse to interfere.® "^i 497. The ordinary waiver of a forfeiture occurs by an acceptance of, or distraining for rent, after a breach committed by the tenant.' But, to make this a waiver, it is necessary that the landlord, at the time of accepting the rent, have knowledge of the fact that the condition has been broken.^ If, with this knowledge, he receives rent from the tenant, which has accrued subsequent to the breach of the condition, he again consents to and establishes the tenancy, which it was competent for him to have avoided ; and thereby precludes himself from taking advan- tage of the tenant's misconduct.^ Thus if the condition be, that the tenant shall not assign without the written permission of his landlord, and, notwithstanding this; he makes an assignment, if the landlord subsequently accepts rent from the assignee, it is a 1 Hill V. Barclay, 16 Ves. E. 402 ; 18 Ibid. 56 ; 1 Dal. K. 210. 2 Descarlett v. Dennett, 9 Mod. E. 22. ' Macher v. Hospital, 1 "Ves. & B. 188 ; "Wafer v. Mocatto, 9 Mod. 112. ' Lovat V. Lord Eanelagh, supra. ^ Baxter v. Lansing, supra. " Davis V. Moreton, 2 Ch. Cas. 127 ; Eolfe v, Harris, supra; 2 Ventr. 352. ' Newman v. Eutter, 8 "Watts, E. 55 ; Silver v. Kenrick, 2 N. Hamp. R. 160; Jackson v. Sheldon, 5 Cow. E. 448 ; Doe v. Eees, 4 Bing. N. S. 384 ; 1 Stark. R. 411 i Cowp. 247 ; 3 Cow. E. 220. 8 Jackson o. Schutz, 18 Johns. E. 174 ; 7 Ibid. 227 ; Jones v. Roberts, 3 Hen. &Munf. 436; Cowp. 803. » Marsh v. Curteys, Cro. Eliz. 528, 553, 572 ; "Walker v. Davids, Cowp. 804 ; Boggs V. Black, 1 Binn. E. 333 ; Clarke v. Cnmmings, 5 Barb. 340. CH. XI.] rOEFBITUEB. 829 •waiver of the forfeiture, and makes the lease valid in the hands of the assignee.-' So, also, a forfeiture for not repairing may be waived, by the receipt of rent becoming due after a right of reentry accrued ; ^ but not by receiving rent which accrued before the expiration of a notice to repair ; nor is it waived, but merely suspended, by allowing a tenant further time to repair.^ Neither will the receipt of rent, after a landlord has actually com- menced his action of ejectment for the forfeiture, amount to a § 498. Other acts of the lessor, besides acceptance of rent, have been held to waive a forfeiture, when they show an intention on his part that the lease should continue.^ Thus a notice to quit at the end of a half year, given after the happening of a breach, has been held to produce such a result.^ And although a land- lord will not lose his right to reenter by merely lying by, (how- ever long the period,) and witnessing the act of forfeiture, yet if, with full knowledge thereof, he permits the tenant to expend money in improvements after a forfeiture has been incurred, it is a circumstance from which the jury may presume a waiver, as well as ground for an application to a court of equity for relief.'^ Whether a demand of rent, without its being paid by the tenant, is a waiver, may be questionable ; but, if such be the case, an agent making the demand must have a general authority to act as agent, or it must be proved that the landlord had notice of the forfeiture.^ The landlord's knowledge of unauthorized acts, without interference, will not preclude him on the ground of acquiescence.® And where a lessee covenanted to erect certain houses within twelve months, and the steward of the lessor, after there was a clear ground of forfeiture, allowed the lessee to com- 1 Whitchcot V. Fox, Cro. Jac. 398 ; Koe v. Harrison, 2 Term E. 425. 2 Fryett v. Jeffreys, 1 Esp. E. 393. " Doe V. Brindley, 4 B. & & A. 84 ; Doe v. Birch, 1 Mees. & Wels. 408 ; 4 B. & C. 606. * Doe V. Meux, 1 C^r. & P. 346. 6 Doe V. Meux, 4 B. & C. 606 ; Doe v. Birch, 1 Mees. & Wels. 408. " Doe dem. Scott v. Miller, 2 C. & P. 348. ' Doe dem. Sheppard v. Allen, 3 Taunt. 78. " Doe dem. Nash v. Birch, 1 Mees. & Wels. 402. 9 Doe dem. Sheppard v. Allen, 3 Taunt. 78. 28* 330 LAW OP LANDLORD AND TENANT. [CH. XI. plete the buildings, the right of reentry was held not to have been waived.^ § 499. But, to operate as a waiver, the landlord must accept rent which has accrued since the forfeiture happened ; ^ for if the condition be, that the landlord may reenter for non-payment of the rent, or in case the rent be in arrear for a certain space of time, he may, at any time after the day. of payment, receive that rent, or bring a suit at law for it, and yet insist upon the forfeit- ure.^ If, however, the landlord, after a forfeiture has been incurred, proceeds to make a distress for rent previously due, he thereby affirms the possession of the tenant, and waives his right of reentering ; because he cannot distrain for rent unless the relation of landlord and tenant, and consequently the lease, exists.* And if he brings an ejectment for the forfeiture, he can only recover rent due after the time of the demise laid in his declaration, in the action for mesne profits ; for, by bringing an ejectment for the forfeiture, he has chosen to treat the lessee and his sub-tenants as trespassers from that time, and the claim to accruing rents is wholly inconsistent with his proceeding at law to enforce a forfeiture.^ § 500. Where, however, there is continuing cause of forfeit- ure, the landlord will not be precluded from taking advantage of it, by receiving rent which accrued after the breach was originally committed. Thus, where the forfeiture was incurred by using two rooms in a house, in a manner prohibited by the lease, such user was held to be a continuing breach, and that the landlord might recover after receiving rent, provided the user continued after such receipt.^ Besides this, the act by which the forfeiture was waived must amount to an affirmance of the tenancy, or a recog- nition of its continuance ; it is not enough that the landlord knows 1 Doe dem. Lord Kensington v. Brindley, 12 Moore, 37. 2 Stuyvesant v. Davis, 9 Paige, E. 427; Jaclison v. Allen, 3 Cow. E. 120; Bleecker v. Smith, 12 Wend. E. 533. " Hartshome w. Watson, 4 Bingh. N. C. 178; Arnsby v. Woodward, 6 B. & C. 519 ; Co. Lit. 211, b ; Jackson v. Sheldon, supra. * Zouch V. Willingdale, 1 H. Black. 311 ; Jackson v. Allen, 3 Cow. E. 220. ' Stuyvesant v. Davis, 9 Paige, 427. * Doe dem. Ambler v. Woodbridge, 9 B. & C. 376. CH. XI.] FORFEITUEE. 331 of the breach of the condition simply, without availing himself of the right to reenter. And, therefore, in a case where the tenant had forfeited his lease, by carrying on a trade upon the premises, contrary to the agreement, and the landlord had stood by for six years, and witnessed the act without moving in the matter ; the court held that he had not waived the forfeiture by the long lapse of time that had occurred, because there was a continuing cause of forfeiture, and a fresh breach of the condition upon which the tenant held the lease, every day during the term that the forbid- den trade was carried on upon the premises, and there had been no subsequent recognition of the tenancy.^ Upon the same prin- ciple, the Supreme Court of New York have held, where there was a covenant on the part of the lessee that he would plant a certain number of appletrees upon the farm, and would replace those that should decay or get destroyed, so as always to keep up the given number during the term, that it was a continuing cove- nant ; and, if the landlord should collect rent after he knew there was a breach of such a covenant, it would not waive the forfeiture or prevent the landlord from reentering, if, subsequent to the pay- ment of such rent there should still be a failure, on the part of the tenant, to perform his engagement.^ § 501, But the waiver of one cause of forfeiture will not pre- vent its being again incurred upon a second hreach. Thus, on a breach of the covenant against underletting, where the lessor accepts rent subsequently accruing, so as to waive the forfeiture, yet if the lessee, after the expiration of that lease, makes another under-lease, the lessor may reenter.^ It is otherwise, however, on a covenant not to assign; for there, if the lessor, by accepting rent, should waive the forfeiture incurred by the lessee's assign- ment, there would be an end of the condition altogether, and the effect would be the same as if the lessor had granted a license.* 1 Doe dem. Henniker v. Watt, 1 Man. & K. 694; 3 Taunt. 78. "^ Jackson v. Allen, supra ; Bleecker v. Smith, 13 Wend. K. 53. 8 Doe dem. Boscawen v. Bliss, 4 Tairat. 735. * Lloyd V. Crispe, 5 Taunt. 249. 332 LAW OF LANDLOBD AND TENANT. [CH. XI. Section IV. By Merger. § 502. Another means of dissolving the relation of landlord and tenant is, by an operation of law, denominated merger ; -which happens whenever two or more estates in the same lands meet in the same person, without any intermediate estate. As when a tenant for life, or term of years, purchases the fee, or the fee descends to him as heir at law ; ^ in either case, the lease is merged in the inheritance, since there would be a manifest incon- sistency in allowing a person to have two distinct estates, imme- diately expectant on each other, while one of them includes the time of both, thus uniting the two different characters of landlord and tenant in the same person. § 503. To merge the two estates, they must come to the same person in one and the same right ; and the particular estate, and that in reversion, must be of the same quality, that is, either both legal, or both equitable. It is, also, a general rule, that a person cannot have a term of years in his own right, and a freehold in another right ; but that his own term shall drown in the freehold, although he may have a freehold in his own right, and a term of years in right of another. As if he who has the reversion in fee marries the tenant for years ; ^ or the tenant makes the landlord his executor ; ^ the term of years is in neither case merged, because, by either operation, he would have the inheritance in his own right, while he would take the term of years in right of his wife, or in his character of executor. But if the case is reversed, and the tenant marry the lessor, or purchase the inheritance when he holds the term as executor, in either event the term of years is swallowed up in the inheritance, or, in the language of the law, merged.* 1 Jackson v. Roberts, 1 Wend. R. 478 ; Jackson v. Hull, 10 Johns. K. 482 ; 2 Black. Com. 177. 2 Co. Lit. 288, b ; Jones v. Morey, 2 Cow. B. 246. 8 Bac. Abr. Leases, R. * Leo's Case, 3 Leon. 110 ; Co. Lit. 388, b. The writer acknowledges his obli- gation to Mr. Preston's practical treatise on Conveyancing, for this brief outline of some of the distinctive features of the law of merger. CH. XI.] MERGER. . 333 § 504. The more remote estate must be the next vested estate in remainder or reversion, -without any intervening estate either vested or contingent. A mere right or title will not suffice ; and an interesse termini not being a vested interest, but resting merely in contract, is ^o such intervening interest as will prevent the application of the law of merger. Therefore where A. made a lease to B. for ten years, to begin presently, and afterwards granted a second lease to C. of the same land, to commence at a future day, and, in the mean time, B. purchased the fee, by which his tenancy was merged ; it was held that the second lessee might at once enter and enjoy his term. The first term here merged, notwithstanding the interesse termini; and this latter interest only conferred a right of possession upon the second lessee, earlier than it could otherwise have done without the merger.^ § 505. Mr. Preston, in his valuable treatise on the law of merger, notes a distinction as to the rule, that there will be no merger if the two estates are held in diflferent rights, or the free- hold is held by the owner of the fee in his own right, and the term in autre droit ; which is, that the accession of one estate to another, merely by the act of law, as by marriage, descent, exe- cutorship, or intestacy, will not occasion a merger, when the two estates are held in different rights ; while a descent of the inhe- ritance will merge a term which a person has in his own right, though he be trustee of that term.^ And though there will be no merger where either of the two estates, which are held in different rights, is an accession to the other by act of law, yet the lesser estate will merge, as often as one of them is an accession to the other by the act of the party, as by purchase, or the like.^ This exception is allowed, on the principle, that as merger is the sink- ing of one estate in another by the conclusion of the law, the law will not allow it to take place to the prejudice of creditors, lega- tees, infants, husbands, or wives.* 1 Dyer, 112 ; Symonds v. Cudmore, 4 Mad. 1 ; Whitchurch v. Same, 2 P. Wms. 236. 3 3 Prest. on Con. 309; Lee's Case, 3 Leon. 110; Plow. 418. 3 3 Prest. on Con. 310. * Ibid. 294, 373 ; 2 Eden, E. 162. 334 LAW OF LANDLORD AND TENANT. [CH. XI. § 506. The estate in reversion or remainder must also be as large, or larger, than the preceding estate. An estate for years may merge in an estate for life, or any other freehold estate, even if the term be for a thousand years, and although, according to all calculation from the utmost length rf)f human life, it would certainly continue beyond the duration of any person's life ; for, in legal consideration, an estate of freehold is of greater extent, and of higher estimation, than any chattel interest. This rather curious doctrine of the law may, perhaps, be deduced from the dependent state of those who were formerly the tenants of these chattel interests ; and, from the power which, prior to the statute of 21 Hen. VIII. c. 15, the freeholder possessed, of defeating such interests, by suffering his own title to be impeached in a feigned action. So an estate for years may merge in an estate in fee ; and an estate pour autre vie in an estate for one's own life. An estate for years may also merge in another estate or term of years, in remainder or reversion.^ Section V. By Surrender. § 507. A surrender is the yielding up of an estate for life or years, to him that has the immediate reversion or remainder, wherein the particular estate may become extinct by mutual agreement between them.^ It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises to the lessor ; or, ly operation of law, when the parties, without any express surrender, do some act which im- plies that they have both agreed to consider the surrender as made.^ It differs from a release, in that the latter operates by 1 3 Prest. on Con. 176 ; 4 Kent, Com. 98. ■■' Co. Lit. 337, b ; 15 Wend. 405. ' Ld. Ray. E. 402 ; Lmngstonw.Potts, 16 Johns.K.28. After a lessee had under- let the premises to two separate tenants, the landlord called on the under-tenants and demanded the rent reserved, forbade them to pay any more rent to the original lessee, and said he had talien the place off the lessee's hands ; Judge Sandford, of the New York Superior Court, said it was impossible, on the facts of this case, to resist the conclusion that there was a surrender, in law, of the term granted by the original lease. Bailey v. Delaplaine, 1 Sand. R. 5. CH. XI.] SXJRKENDEK. 335 the greater estate descending upon the less ; while a surrender is the falling of a less estate into a greater. The term surrender hj operation of law, is properly applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate continued to exist. Thus where a lessee for years accepts a new lease fi'om his lessor, he is estopped from saying that his lessor had no power to make the new lease ; and, as the lessor could not grant the new lease until the prior one had been surrendered, the acceptance' of such new lease is, of itself, a surrender of the former one. Such surrender is the act of the law, and takes place independently of, and even in spite of, the intention of the parties. The acts in pais, which bind parties by way of estoppel, however, are acts of notoriety, not less formal and solemn than the execution of a deed ; as, for instance, livery, entry, accept- ance of an estate, and the like.^ § 508. TJie person, to whom the surrender is made, must have an estate immediately in reversion or remainder, but it is" imma- terial whether he has it in fee, in tail, or for life. For this reason, an under-lessee cannot surrender to the original lessor.^ But a lessee for years may surrender to him who has the rever- sion only for years, though the lessee be for several years, and the reversioner has it only for one year, or a less term.^ And if a lessee demises part of his estate to the lessor, he may surrender the other part ; for the reversion of that part remains in the les- sor.* A surrender to an infant is good ; for his assent will be presumed till a disagreement appears.^ There- can be no surren- der, however, except by a party in possession ; and it can only 1 Lyon V. Eeed, 13 M. & W. 285 ; 7 Serg. & Eaw. 374. Where one, not a party to a lease, is shown to be in possession of demised premises in subordination to such lease, the law presumes that he is an assignee of the lessee ; but this presumption is rebutted by proof that, during the possession of the third party, the lessor received from the lessee a surrender of the term. Such surrender, if pro- duced by the lessor, is an admission that the lessee, and not the occupant, was, at its date, tenant to the lessor. Durando et al. v. Wyman, 2 Sand. E. 597. 2 2 Prest. on Abst. 7. 8 Hughes V. Eobotham, Cro. Eliz. 302. * 2 Eol. Abr. 494. 5 2 Ventr. 208. S36 LAW OF LANDLORD AND TENANT. [CH. XI. be made to the person having a higher estate, in which the estate surrendered may merge. Therefore, a tenant for life cannot sur- render to him in remainder for years ; nor a tenant for years, who is ousted of his term before entry, for he has but a bare right. Neither can one joint tenant surrender to another.^ § 509. At common law, an express surrender of things lying in grant could only be, made by deed, although a surrender of things in possession might be made by parol, without livery of seizin, or other formal mode of conveyance, as it was but a resto- ration of the particular estate to him, in reversion or remainder.^ But the statute of frauds prohibits a term of years, or other inte- rest in lands, to be surrendered, unless by deed, or note in writ- ing, or by operation of law. A deed is not, therefore, necessary to effect a surrender, since it may be by a note in writing. But no verbal arrangement or agreement between the parties can can- , eel a lease for years.^ Therefore a mere parol agreement between a landlord and tenant, to determine a tenancy in the middle of a quarter, is not binding.* And although a tenant may agree in writing to surrender his lease for a particular purpose, which pur- pose is not effected, such conditional agreement will not operate as a surrender.^ § 510. The technical and proper words of a surrender are, sur- render and yield up ; but any form of words, by which the inten- tion of the parties is suiEciently manifested, will operate as a sur- render.^ Thus if a lessee for years remise, release, discharge, and forever quitclaim to the lessor, all his right, title, and inte- rest in or to such lands, it will amount to a surrender. Or if a lessee for life leases to the lessor for the life of the lessee, this is a surrender.' But a written notice given by the tenant, of his 1 2 Rol. Abr. 494 : Shep. Touch. 303 ; 2 Marsh. E. 33. 2 Co. Lit. 338, a ; 1 Ventr. 242. ^ Rowan v. Lyttle, 11 "Wend. E. 616 ; Farmer dem. Earl v. Ryers, Wils. 26 ; Matthews v. Sawell, 8 Taunt. R. 270. * 2 Stark. E. 379. Although such license, accompanied by some act of the landlord, indicating his acceptance of possession, may, together, operate as a sur- render, by operation of law. Grimman v. Legge, 8 B. & C. 325. 5 Coupland v. Maynard, 12 East, R. 134; 3 B. & C. 478. 8 Smith V. Mapleback, 1 Term E. 441. ' Ld. Eay. 402 ; 2 Eol. Abr. 497. CH. XI.] SUERBNDEK, 337 intention to quit, at a time when he believed his tenancy would expire, but which is afterwards discovered not to be the true time, will not operate as such.^ And where one tenant in common of a reversion agreed in writing with another, who was possessed of a term in the whole of the land, to give him a certain sum on a given day, when either a sale or a partition of the estate was to be made, as a compensation for quitting possession, and the other agreed to give up possession on a day subsequent to that fixed for the payment, it was held that the instrument did not operate as a surrender when signed.^ Nor will an agreement between the lessor and a stranger that the lessee shall have a new lease, or an acceptance by a lessee of a new lease in trust for another, in either case amount to a surrender.^ §■ 511. The erasure or cancellation of a deed will not divest the estate ; nor will the tearing off the names of the parties, or of the seals ; * or the destruction of the instrument by mutual con- sent, operate as a surrender ; because a deed is not the essence of a contract, but only the evidence of it ; and, therefore, the destruction of the lease or contract would not follow upon the destruction of the deed.^ This is a necessary consequence of the statute of frauds, which declares that no leases, estates, or inte- rests, either of freehold or term of years, shall be. assigned, granted, or surrendered, unless by deed, or note in writing, signed by the party or his agent, or by act or operation of law. The statute, from the tfme of 29 Charles II., intended to take away the former mode of transferring interests in lands, by signs, symbols, and words only ; and, therefore, as livery of Seizin on a parol feoffment was a sign of passing the freehold, before the statute, but is now taken away, so the cancelling of a lease, was a sign of a surrender, before the statute, which is now taken away, unless there be a writing under the hand of the party.^ The fact 1 Doe dem. Murrell v. Milward, 3 Mees. & Wels. 328 ; 1 Home & Hurl. 79. 2 WeddaU v. Capes, 1 Mees. & "Wels. 50 ; 1 Gale, 432. 8 Porris v. Allen, Cro. Eliz. 173 ; Com. Dig. Surrender, H. L. 1. ' Doe dem. Constance v. Thomas, 9 B. & C. 288 ; 4 M. & Ry. 218. s Eaynor v. Wilson, 6 Hill, (N. Y.) B. 469 ; Eowan v. Lyttle, supra; Whitton . Smith, Treeman, 85. ' Eoe V. Archbp. of York, 6 East, 86. 29 338 LAW OP LANDLORD AND TENANT. |"CH. XI. of cancellation, however, may be strong corroborating evidence in aid of other proof, such as the granting of a new lease to other parties, that a surrender in law has taken place.-' § 512. A surrender bj act and operation of law is a case excepted out of the statute ; for the acceptance, by the tenant, of a new lease of the same premises, during the period of the first lease, is deemed a virtual surrender of the former lease. It admits the capacity of the lessor to make such a lease, which he would not have without a surrender of the first lease ; and the presumption of law is, that such lease has been surrendered ; for no man would take from another a lease of a farm or house, of which he has already the legal control, and agree to pay him rent for it.^ This presumption is raised by the circumstances of the\ case, and by the acts of the parties ; showing that the acceptance of the second lease, even for a shorter term than the first, implies a surrender of the first. But as this presumption of a surrender arises from the acts of the parties, which are supposed to indicate an intention to that effect, it must follow, that where no such intention can be presumed without doing violence to common sense, the presumption cannot be supported. The cases have settled, that simply receiving a second lease raises this presump- tion ; but if the acts of the parties, taken all together, are such as to rebut the idea of a surrender, then none ought to be pre- sumed.^ An acceptance of a surrender will not be presumed from mere lapse of time ; nor from the circumstance that rent has been paid by a third person, and not by the original tenant.* But the second lease, which is thus to work a surrender of the first, must be good and valid in law ; for, if it be void, its accept- ance by the lessee is no surrender.^ If, therefore, a lease be made to a minor, it is no surrender of a former lease, unless he 1 Walker v. Richardson, 2 M. & W. 882 ; 2 Y. & J. 536 ; Holbrook v. Tirrell, 9 Pick. K. 105. 2 Coleman v. Maberly, 3 Monroe, (Ky.) E. 220 ; Jackson v. Gardner, 8 Johns. B. 394 ; 6 East, 86, 90, 101. ' Van Rensselaer's Heirs v. Penniman, 6 Wend. R. 579; Cro. Eliz. 605; 12 Johns. E. 357 ; 16 Ibid. 28. * Doe V. Cook, 16 Bingh. 174; Copeland v. Watts, 1 Stark. 96, 6 Davison v. Stanley, 4 Burr. 2210; 15 Wend. E. 404; per Han-is, P. J., in Smith V. Niyer, 2 Barb. E. 180. CH. XI.] SUSKENDER. 339 assents to it -when at full age.^ So if a lease be made to one who is non compos mentis.^ § 613. A lease to commence in futuro -will operate as an immediate surrender of the first lease, but there cannot be a sur- render to operate in futuro.^ And though the new lease is granted conditionally, it will yet operate as a surrender in law. As if a man makes a lease for forty years, and the lessee after- wards takes a lease for twenty years, upon condition that, if he does a particular act, the second lease shall be void, and the lessee afterwards breaks the condition, so that the second lease becomes void, the first lease is nevertheless surrendered.* But a parol agreement between a landlord and tenant, of a term of six years, that the tenant shall surrender his interest in the demised pre- mises, and that the landlord shall execute a new lease to a third person, does not operate as a surrender unless such new lease be executed, and pass an interest according to the contract and intention of the parties ; although the tenant quits the premises, the third person enters and remains in possession for the space of a year, and pays rent to the landlord ; for the original lease remains in force, and the landlord may maintain an action of covenant for rent against the original tenant, for rent subsequently accrued.^ Nor will a recital in a second lease, that it was granted in part consideration of a surrender of a prior lease of the same pre- mises, amount to a surrender by deed, or note in writing, of such prior lease ; because it does not purport by its terms to be a sur- render or yielding up of the interest.^ <§> 514. A tenancy from year to year, or for years, cannot be surrendered by a mere agreement of the landlord to accept a third person in the place of his tenant, unless such agreement be in writing, or the third person actually takes possession. In the, latter case it is held, that a parol agreement between a landlord and a tenant from year to year, that another tenant should be 1 Ibid ; Lloyd v. Gregory, Sir Wm. Jones, 405. == Thompson v. Leach, Comb. 438-468. 3 Doe dem. Murrell v. Milward, 3 Mees. & Wels. 328 ; Cro. Eliz. 605. * Co. Lit. 218, b; 1 Saund. R. 236, b. 5 Schieffeliu v. Carpenter, 15 Wend. B. 400. 8 Roe dem. Berkely v. York, 6 East, 86 ; 2 Smith, 166. 340 LAW OF LANDLOED AND TENANT. [CH. XI. substituted in his place, who Tvas accordingly substituted, is a sufficient surrender, under the statute of frauds, to determine the former tenancy.^ It has been held, also, that if a landlord attest a notice, given by a lessee to his under-tenant, to pay rent to the landlord, and have knowledge of its contents, it will ter- minate the tenancy of the lessee, and discharge him up to that time.2 Where a sole tenant from year to year, before the termi- nation of his tenancy, entered into an agreement with his land- lord for a lease, to be granted to him and another jointly, and both entered upon and occupied the premises jointly ; it was held, that the first tenancy was determined, though the lease was never executed pursuant to the agreement.^ So where the tenant underlet the premises, and the landlord accepted the under- tenant as his tenant, and collected rent from him, which arrange- ment was assented to by the original tenant ; the court held that this amounted to a virtual surrender of the tenant's interest, by operation of law.* § 515. An actual and continued change of possession, by the mutual consent of the parties, will amount to a surrender by ope- ration of law ; whether the possession is delivered to the landlord himself, or to another in his behalf.^ Thus, where the owner of a ferry leased it to a person verbally, for a certain rent, but the man, at the end of a few weeks, finding it unprofitable, proposed to become the servant of the owner as boatman, which was assented to, and he received wages for his services ; the court decided that there was such a surrender to the owner of his inte- rest in the ferry.® And although a tenancy from year to year is not determined by a parol license from the landlord, to quit in the middle of the quarter,'^ yet if, in such a case, both parties act upon such license, and the landlord takes possession, so as to ren- 1 Stone V. Whiting, 2 Stark. 235. 2 Harding v. Crethorne, 1 Esp. 57. 3 Hameston v. Stead, 5 D. & E. 206; 3 B. & C 478. * Tliomas v. Cook, 2 B. & A. 119. 6 Hall V. Burgess, 5 B. & C. 333 ; Eeve v. Bird, 1 C. M. & B. 37 ; 2 M. & E. 438, note. 6 Peter v. Kendal, 6 B. & C. 703. 7 Mollet V. Brayne, 2 Campb. E. 103 ; Thomson v. Wilson, 2 Stark. E. 379 ; 1 McClel. & Y. 146. CH. XI.] STJRRBNDEK. 341 der it impossible for the tenant to use or occupy the premises, the tenancy is thereby legally determined.^ So, in Massachusetts, it was held that a lease of a dwelling-house, under seal, is deter- mmed by the delivery of a key to the lessor, accompanied by his receipt of it and putting another tenant in the house.^ But where a surrender is effected by a change of possession, the con- sent of all parties to the change of tenancy seems to be necessary. For where a tenant from year to year agreed by parol with the landlord's agent, to quit at the ensuing quarter-day, and the pre- mises were relet by auction, at which the tenant attended and bid, but the new tenant was not let into possession, as the old tenant refused to quit ; it was held that this did not amount to a surrender by operation of law.^ § 516, If a landlord underlets the premises, without notice to the tenant that it is on his account, it dispenses with a surrender on the part of the tenant.* And where tenants holding from year to year, under the same landlords, agree to exchange with the consent of the agent of both landlords, and take possession, it will operate as a surrender of the old tenancies, and the creation of new demises.^ But no mere agreement between a landlord and tenant, for the substitution of another tenant, or any other act of a landlord which can be referred to a different motive, will amount to a surrender.^ Where, however, A. leased to B. for eight years, B. assigned to C, and C, on application by A. to have the premises, made with A. the following agreement : " A. to iave the pretnises on the terms mentioned in the original lease, and to pay £S 10s. over and above the rent annually, towards the good will;" it was held, that this agreement was not an under-lease from year to year, but a surrender of the original term ; since the lessor was to have the premises on the terms of the original lease, and one of those terms was, at the then pre- 1 Whitehead v. Clifford, 5 Taunt. K. 518 ; Grimman v. Legge, 8 B. & C. 324 ; 3 Bing. 462; 2 C. & P. 268 ; Smith v. Niver, supra. 2 Eandall v. Kich, 11 Mass. E. 494. s 2 Bing. 54 ; 7 Moore, 298 ; 3 N. Hamp. E. 204, 502. ' Watts V. Atcheson, 3 Bing. 462 ; 2 C. & P. 68. 6 Bees V. Williams, 2 C. M. & E. 581 ; 1 Tyr. & Gr. 23. 6 Griffith V. Hodges, 1 C. & P. 419. 29* 342 LAW OF LANDLOKD AND TENANT. [CH. XI. sent time, a right to hold the premises for the unexpired term.^ Where a tenant from year to year underlet the premises, and the original landlord accepted the under-tenant as his tenant, with the lessee's assent, but there was no surrender in writing of the les- see's interest, and, the rent being subsequently in arrear, the landlord distrained on the under-tenant, it was held, that these cir- cumstances constituted a valid surrender of the lessee's interest.^ But a deed executed between landlord and tenant, reciting " that it had been agreed that the tenant should quit and deliver up the premises, that a valuation of his effects upon the premises should be made, which, in the mean time, were to be assigned, and which accordingly were assigned to trustees, for the landlord," operates as a conditional surrender only.^ § 517. The agreement to substitute must he mutual, otherwise the tenant will not be discharged from his liability. As where two partners agreed to hold for three years, with power to extend the term to seven, on notice. Before the expiration of the three years, or any notice being given, one of the partners retired, and another was admitted in his place. Notice was afterwards given, by the continuing partner, for an extension of the term, and the landlord, by letter, expressed himself willing to grant a new lease to him and the new partner, but the letter was not communicated to the retiring partner, so that the agreement was not mutual, nor was any lease prepared ; the landlord received rent, first from the continuing partner alone, and afterwards from him and the new partner. The retiring partner was held not to be discharged from his liability for rent during the remainder of the three years.* And if there is any fraudulent concealment on the part of an outgoing tenant, the tenancy will not be dissolved ; as if he conceals the fact, that the party introduced by him has com- pounded with his creditors.^ § 518. To guard against the consequences which sometimes 1 Smith V. Mapleback, 1 Term E. 441. 2 Thomas v. Cook, 2 B. & A. 119 ; 2 Mees. & "Wels. 882. ' Coupland v. Maynard, 12 East, 134. * Graham v. Whichelo, 1 Cr. & M. 188 ; 3 Tyr. 201. 6 Bruce v. Kuler, 2 Man. & Ey. 3. CH. XI.] CONTINGENT MODES OP DISSOLVING A TENANCY. 343 result from a surrender, in discharging the under-lessee from the payment of rent, and the conditions and covenants annexed to the lease, the statute of 4 Geo. II. c. 28, provided, that if a lease be surrendered to be renewed, and a new lease given, the relation of landlord and tenant, between the original lessee and his under- lessee, should be reserved ; and it placed the chief landlord and his lessees and the under-lessee, in reference to rents, rights, and remedies, exactly in the same situation as if no surrender had been made.^ In conformity to the English statute, the Revised Statutes of New York have enacted, that if a lease be surren- dered, in order to be renewed, and a new lease be made by the chief landlord, such new lease shall be good and valid, to all intents and purposes, without a surrender of all or any of the under-leases, derived out of such original lease so surrendered ; and the chief landlord, his lessee, and holders of such under- leases, shall enjoy all their rights and interests in the same man- ner, and to the same extent, as if the original lease had been still continued; and the chief landlord shall have the same remedy, by distress or entry, upon the demised premises, for the rents and duties secured by such new lease, so far as the same do not exceed the rents and duties reserved in the original lease so sup- rendered.^ In those States, in which this provision has not been adopted, the question may arise how far the under-tenant (whose derivative estate still continues) is discharged from the rents and covenants annexed to his tenancy, according to the authority of the English cases, in which, as Chancellor Kent intimates, that inequitable result is indicated.^ Section VI. Contingent Modes of Dissolviny a Tenancy. (a.) Premises taken for Public Use. § 519. In addition to the several methods of dissolving a tenancy which have been mentioned, it remains to be observed, 1 4 Kent, Com. 103. 2 1 E. S. 744. s 4 Kent, Com. 103; Barton's Case, Moor, 94; Webb v Kussell, 3 Term E. 401. 344 LAW OF LANDLORD AND TENANT. [CH. XI. that a lease for years, made by a disseizor or other wrong-doer, is absolutely determined by the entry of the disseizee, or rightful possessor. But if the disseizee confirms the lease when out of possession, he cannot, after entry, avoid it ; because he has, by his confirmation, parted with so much of his ancient right as to deprive himself of the power of avoiding it.^ As a general rule, also, whenever the estate which the lessor had, at the time of making the lease, is defeated or determined, the lease is extin- guished with it.2 If, therefore, a lot of land, or other premises under lease, is required to be taken, for city or other public improvements, the lease, upon confirmation of the report of the commissioners, becomes void. And, in the event of closing up a street or road, on which the leased premises are situated, if they are no longer upon, or contiguous to, a public highway, the lease becomes void.^ But if only part of such lot is taken for such purpose, the lease is not thereby extinguished, even pro tanto, (except by force of a statute) ; nor is the lessee discharged of his liability to pay rent for the residue of the term, but the lessor and lessee are each entitled to recover compensation for their respective damages.* Nor does the appropriation, by the public canal commissioners, of a mill-privilege, which was the subject of a demise, amount to a discharge of the lessee from his obliga- tions ; for he is entitled to compensation for the injury he has sus- tained.^ (b.) Destruction of Premises. § 520. When the subject-matter of the demise is entirely destroyed, the lease perishes with it. As where there is a lease for years of particular apartments in a building of several stories, and the whole building is destroyed by fire at any time during the term, the lessee's whole interest is gone, for the thing granted has ceased to exist. This principle was recognized and acted 1 1 Eep. 147, a; Bac. Abr. Lease, 1. ''■ Hervey's Case, 4 Leon. E. 161. 3 2 N. Y. Eer. Laws, 1813, p. 417, and Laws of 1824 ; Mills v. Baer's Ex'rs, 24 Wend. 454 ; Barker v. Hodgson, 3 M. & S. 270. * Parks V. City of Boston, 15 Pick. E. 198. '■■ E'olts V. Huntley, 7 Wend. 210. CH. XL] tenant's disclaimer. 345 upon in the case of Kerr ^ King v. The Merchants Exchange Company, in the city of New York, who had made a lease for years of certain apartments in the basement of the Exchange, pre- vious to the destruction of that building by the great fire of 1835 ; upon the rebuilding of the Exchange, the lessees applied to be let into possession of similar apartments in the basement, on the ground of their lease having not yet expired ; but the court held their lease was destroyed with the premises, and that they had no inte- rest in the new building.^ (c.) Turning Premises into a House of III Fame. § 521. A lease of premises, for the purpose of prostitution, or any other immoral object, is a contract against good morals, and absolutely void.^ But if the original agreement was honest, and the premises are subsequently appropriated to vicious uses, or if the woman merely lodges there, and receives her visitors else- where, the lease is not thereby avoided at common law.^ It is provided, however, by statute, in New York, that if the lessee of any dwelling-house shall be convicted of keeping a bawdy-house, the lease or agreement for letting the same shall thereupon become void, and the landlord may enter upon the premises so let, and shall have the same remedies to recover possession, as are given by law in case of a tenant holding over after the expira- tion of his lease.* (d.) Tenant's Disclaimer. § 522. Whenever a tenant disclaims to hold under his land- lord, or unlawfully attorns to another, he forfeits his term, and may be ejected without any notice to quit.^ The acceptance of a 1 3 Edw. Ch. E. 315; Winion v. Cornish, 5 Ohio R. 303. See, also, Andrews I/. Needham, Noy. 75 ; Cro. Eliz. 656. 2 Girardy v. Richardson, 1 Esp. R. 13 ; Jennings v. Throgmorton, R. & M. 51. ' Appleton V. Campbell, 2 Car. & Pay. 347. « 2 R. S. 702, § 29. * Jackson v. Wheeler, 6 Johns. E. 272 ; Woodward v. Brown, 13 Peters, R. 1 ; Lewis V. Ringo, 3 A. K. Marsh. 247. 346 LAW OF LAlfDLOED AND TENANT. [CH. XI. lease by a tenant from a third person, is a fraudulent attornment, and the original landlord is entitled to recover, on proof of the acknowledgment of the tenant, that he entered into the premises under such landlord.^ But a mere denial of his landlord's title by parol, or the payment of rent to a third person, will, in neither ease taken singly, amount to such a disclaimer as will forfeit the lease.^ A refusal, however, by the tenant to pay rent, on the ground that another person had ordered him not to pay any, has been held to be evidence of a disclaimer of the tenancy.^ And where several persons joined in letting land, and it was agreed that the rent should be paid to an agent for them, and afterwards one of the lessors, to whom alone, in fact, the land belonged, demanded rent of the tenant, who said, " You are not my land- lord ; " it was left to the jury to say, whether he intended that the relation of landlord and tenant did not exist between them, or merely that the rent was to be paid to the agent.* But a distress put in by the landlord for rent, is a waiver of any disclaimer by the tenant.^ 1 Jackson v. Harper, 5 Wend. R. 246. 2 Van Schaich v. Vincent, 4 Wend. R. 633 ; Doe dem. Graves v. Wells, 2 Per. & Dav. 396 ; 10 Ad. & El. 427. 3 Doe dem. Whitehead v. Pittman, 2 Nev. & Man. 673. ' Doe dem. Bennett v. Long, 9 Car. & Pay. 773. ' Doe dem. David v. Williams, 7 Car. & Pay. 322. CH, Xn.] THE CONSBQTJBRCBS OF A DISSOLUTION. 347 CHAPTER XII. THE CONSEQUENCES OF A DISSOLUTION. § 523. Tke tenancy being ended, the tenant is bound quietly to yield up the possession of the premises to his landlord, although he has a reasonable right of egress and regress, for the purpose of removing his goods and chattels. He may, also, in certain cases, have a right to take the emblements, or annual profits, after they shall have matured, and in any event, unless restricted by some positive agreement to the contrary, may remove such fixtures as he has erected during his occupation, for his comfort, convenience, or profit. We shall, in this chapter, treat of each of these subjects in their order. Section I. The lAahility of a Tenant Solding over. ^ 524. As soon as the tenancy has expired, the tenant ought peaceably and quietly to surrender the premises, together with all such improvements', buildings, and fixtures as belong to them; and his neglect or refusal will subject him to certain penalties imposed by law. If he has let the whole, or any part of the pre- mises, to an under-tenant, who is in possession at the time of the determination of the term, he must get him out ; otherwise he will not be in a situation to render that complete possession to which the landlord is entitled. If he refuses to quit, the landlord, is not justified in resorting to force to put him out, but must pur- sue his legal remedies.^ If, however, the tenant and his family be gone away, and the house locked up, no one being in posses- sion, the landlord would be justified in breaking into the house, and obtaining possession.^ And unless the entire possession is delivered up, the tenant's responsibility will not cease, although 1 Newton v. Harland, 1 Man. & Gr. 644 ; Sampson v. Henry, II Pick. E. 379. 2 Hillary t>. Gay, 6 Car, & Pay. 284 7 Moore, 574 ; 1 Bing. 158. 348 LAW OF LANDLORD AND TENANT. [CH. XII. the lease stall have expired, and it may have become impossi- ble for the tenant to give the landlord full possession, in conse- quence of the obstinacy or ill will of an under-tenant, to whom he has let a part or the whole of the premises, and who refuses to quit ; for, in such case, it has been held the landlord may refuse to accept the possession, and hold the original tenant liable.-^ Therefore, where an under-tenant held over after the expiration of a term, against the will of the lessee, and, during the holding over, the lessee distrained for rent previously due ; it was held, that the lessee was liable for the period of the holding over, but not for a whole year's rent, as a tenant who holds over does not necessarily become tenant from year to year.^ The landlord may, however, in such case, discharge the original lessee, by accepting the under-tenant as his immediate lessee, as by accepting the key from the original tenant whilst the under-tenant is in possession, or by accepting rent from him, or other act tantamount to it. But the mere circumstance of the landlord signing a notice, by wTiich a tenant, whose term has expired, orders his under- tenant to pay the rent to him in future, is not evidence of his agreement to accept him as a tenant, unless it appears that he knew the contents of the notice.^ And whenever a tenant remains in possession, it is a question for the jury to determine whether he intends to continue the tenancy.* § 525. The statutes of 4 Geo. II. c. 28, and 11 Geo. II. c. 19, declared that if a tenant held over, after demand made and notice in writing to deliver up possession, or if he held over after having himself given notice of his intention to quit, he should be liable to pay double rent so long as he continued to hold over. The pro- visions of these statutes have been reenacted in New York, though they are not generally adopted in this country.^ The statutes referred to declare,^ that if any tenant for life or for years, or any other person who may have come into possession of 1 Harding v. Crethome, 1 Esp. 57. ' Ibbs V. Richardson, 1 Per. & Day. 618 ; 9 A. & E. 849 ; "Warring v. King, 8 Mees. & Wels. 571. 8 Harding v. Crethorn, supra. * Jones V. Shears, 2 Har. & Wol. 43; 4 Ad. & El. 832 j 6 Nev. & Man. 428. 6 Kent, Com. 115. 6 IK. S. 745, §10. CH. XII.] THE LIABILITY OF A TENANT HOLDING OVEE. 349' any lands or tenements, under or by collusion with such tenant, shall wilfully hold over any lands or tenements after the expira- tion of such term, and, after demand made, and one month's notice in writing, given in the manner therein prescribed, requir- ing the possession thereof by the person entitled thereto, such person, so holding over, shall pay to the person so kept out of pos- session, or his representatives, at the rate of double the yearly value of the lands and tenements so detained, for so long a time as he shall so hold over, or keep the person entitled out of posses- sion. This statute does not apply to a mere weekly or monthly tenancy, but to a tenancy for life or years only.^ And it applies only to cases in which the tenant has been guilty of fraud or con- tumacy, and not to those in which he maintains possession bona fide, or upon any fair ground of defence.^ Therefore, where there had been a treaty for a fufther term between the landlord and tenant, which afterwards fell through, the tenant who had held over during the treaty was adjudged not to be within the meaning of the statute.^ § 526. A demand of possession, and notice to quit, in writing, are necessary in all cases in which the landlord would avail him- self of the statute ; for though, where premises are underlet for a certain period, no notice is required to put an end to the tenancy, yet the tenant who holds over beyond the term can only be charged for double rent from the time when a notice was served.* But proof of service of notice in writing, is held to be a suffi- cient proof of demand ; ^ and, where the holding has been from year to year, the ordinary notice to quit, which is given for the purpose of determining the tenancy, serves, at the same time, as a good demand of possession under the statute.^ § 527. The action lies in favor of the landlord, and his legal representatives. If the parties entitled to the action are tenants 1 Lloyd y, Bisbee, 2 Campb. E. 453. = Hall V. Bellentiue, 7 Johns. R. 536. " "Wright V. Smith, 5 Esp. 295. * Cobb V. Stokes, 8 East, 358. 6 Wilkinson v. CoUey, Burr. 2694 ; 8 Ad. & El. 582. « Hirst V. Horn, 6 Mees. & "Wels. 393. 30 350 LAW OF LANDLORD AND TENANT. [CH. XII. in common, each may bring a separate action for the double value of his moiety ; ^ and they cannot sue jointly -where there has been no joint demise.^ The statute requires notice to be given to the tenant in possession ; and the rules relating to ser- vice of notice to quit, formerly mentioned, are applicable here. If the notice is given to a single woman, as the tenant, and she afterwards marries, the landlord may maintain his action for double rent against her husband, without serving another notice on him.^ § 528. The notice ought to be given before the expiration of the term, and the landlord will then be entitled to recover double rent, as from the period at which the term expired.* It may, however, be given after the expiration of the term ; and, if the landlord has done no act acknowledging the continuance of the tenancy, he will be entitled to double rent or value from the time of demand, so long as the tenant continues to hold over. But if the rent is payable quarterly, and the demand be made in the middle of a quarter, he cannot recover single rent for the antece- dent fraction of such quarter.^ If, after the expiration of the notice, the landlord receives single rent from his tenant, it is a question for a jury to consider whether he did not thereby intend to waive the notice and reestablish the tenancy ; for, in that case, the landlord's right to sue for double rent is gone.^ But the bring- ing of an ejectment suit, after service of notice to quit, is no waiver of the landlord's right to double rent.'^ § 529. The statute also imposes a penalty upon such tenants as, having the power of terminating their leases by notice, shall notify the landlord to that effect, and afterwards refuse to deliver up possession at the time specified. It declares that, if any tenant shall give notice of his intention to quit the premises by him holden, and shall not accordingly deliver up the possession 1 Cutting V. Derby, 2 W. Black. 1077. 2 Wilkinson v. Hall, 1 Bing. N. C. 713. 8 Luke V. Smith, 1 N. E. 174. * Cutting V. Derby, Black. E. 1Q75. " Cobb V. Stokes, supra. « Doe dem. Cheny v. Batten, Cowp. 243 ; Eyal v. Eich, 10 East, 4S. 7 Soulsby V. Nevins, 9 East, E. 310. CH. XII.] THE LIABILITY OE A TENANT HOLDING OVER. 351 thereof at the time in such notice specified, such tenant, his exe- cutors, or administrators, shall from thenceforward pay to the landlord, his heirs, or assigns, double the rent which he should otherwise hare paid, to be levied, sued for, and recovered at the same time, and in the same manner, as the single rent ; and such double rent shall be continued to be paid during all the time such tenant shall continue in possession, as aforesaid.^ As this statute directs the double rent to be recovered in the same man- ner as single rent, the landlord may either bring an action of debt for it, or he may distrain. A mere verbal lease is consi- dered to be within the meaning of this statute ; and verbal notice to quit, by the tenant, is sufficient to make him liable for double rent, in case he holds over.^ But, to bring the tenant under the statute, his notice must be direct and positive ; for, in a case where a tenant gave his landlord notice that he would quit upon a contingency, as soon as Tie could find another situation, and he did afterwards find another situation, but neglected to quit the premises ; Lord Ellenborough held the notice too vague, and that the case did not come within the statute.^ The statute only applies to those cases in which the tenant has the power of deter- mining his tenancy by notice, and where he actually does give a valid notice for that purpose.* It may be noticed, also, that a tenant holding over, after notice to quit, is only liable for double rent during his continuance in possession ; and need not give a fresh notice, after having paid double rent, in order to get rid of his liability.^ The chief difference between these two sections of the statute seems to be, that in the former the notice which prcl| ceeds from the landlord must be in writing ; but in the other, pro- ceeding from the tenant, it may be a mere verbal notice ; and that the one imposes double rent as a penalty, and not as a rent ; while the other still treats the party as tenant, and recognizes him by that name, which the former does not.^ . 1 IN. Y. E. S. 745, § 11. " Timmins v. Kowlinson, Burr. 1603 ; Wheeler v. Copeland, 2 Car. & Pay, 359 ; 5 Terra R. 364. ' Farrance v, Elkington, 2 Campb. 591. * Johnston v. Huddlestone, 4 B. & C. 922 ; 7 D. & R. 411. 6 Booth V. McFarlane, 1 B. & Ad. 904. 6 Soulsby V. Nevins, 9 East, R. 314. 352 LAW OF LAISTDLORD AND TENANT. [CH, XII. § 530. In addition to the penalty of double rent, imposed upon the tenant for holding over, the same statutes also subject him to an action for all special damages the landlord may sustain, in con- sequence of his refusal to deliver possession, by enacting that the tenant " shall also pay and remunerate all special damages what- ever, to which the person so kept out of possession may be sub- jected by reason of such holding over ; and there shall be no relief in equity against any recovery had at law under this sec- tion."^ There is, likewise, in this State, a further provision against holding over, without express consent, after the determi- nation of their particular estates by guardians, trustees to infants, and husbands seized in right of their wives, or by any other per- sons having estates determinable upon any life or lives. They are declared to be trespassers, and liable for the full value of the profits received during the wrongful possession.^ This last pro- vision was taken from the statute of 6 Anne, c. 18 ; but the com- mon law itself held the guardian, in such case, to be an abator, and gave an assize of mort d' ancestor against the disseizor ; with an action of trespass against the tenant pour autre vie, or tenant for years holding over.^ Section II. Mutual Privileges after Dissolution. § 581. Independent of any statutory provision, the landlord may reenter upon the tenant holding over, and remove his goods, with such gentle force as may be requisite for the purpose, and the tenant will not be justified in resisting him.* He may even enter by breaking open the door, if no person be in the house at the time.^ But he cannot forcibly turn the tenant or his family out of possession ; and, if any person be upon the premises, a 1 1 E. S. 745, § 10. " Ibid. 749, § 7. 3 4 Kent, Com. 116. * Ives V. Ives, 13 Johns. E. 235 ; Jackson v. Farmer, 9 "Wend 201 ; Jones v. Muldrow, 1 Eice, (S. C.) R. 64 ; 2 Watts & S. 225 ; 12 Ver. R. 273 ; Butcher v. Butcher, 7 B. & C. 399. * Tnmer v. Maymott, 1 Bingh. R. 158 ; Taunton v. Costar, 7 T. R. 431. CH. XII.] MUTUAL PRIVILEGES AFTER DISSOLUTION. 353 forcible entry will confer no right upon a landlord,^ and would subject him either to an indictment for a forcible entry under the statute, or to an action of trespass at common law.^ If the tenant, therefore, continues to hold over after the expiration of his tenancy, and refuses to remove after being required to do so, the landlord must call in the assistance of the law to effect the tenant's removal, for the law gives him no authority to enter in that event.^ The statute laws of most of th& States have provided summary proceedings for the expulsion of the tenant in such cases, in addition to the common-law remedy of ejectment ; and we shall have occasion to examine these several proceedings in another part of our work. § 532. But though a landlord cannot regain possession of pre- mises held over by a tenant, in a forcible manner, by authority of law, it seems he may by an authority in fact ; thus it was held, that an agreement to give up possession, founded upon a good con- sideration, amounts to a leave and license, and justifies a landlord in entering and taking possession.* If this case be law, as has been suggested by a recent author,^ it would seem that whenever a lease contains the usual covenant to yield up the premises quietly at the end of the term, the landlord may peaceably enter, and use such force as may be necessary to put out the tenant, as well as his goods ; and, if trespass be brought against him, may justify under a plea of leave and license. At all events, the entry being under an authority in fact, and not an authority in law, no subsequent abuse could render him a trespasser ab initio ; the entry, being peaceable, would at all events be lawful, and he might justify any subsequent force necessary to clear the land, on the ground of a lawful possession ; and such force would not make him a trespasser ah initio, because he entered under an authority 1 Newton v. Harland, 1 Man. & Gr. 644. 2 Hilary v. Hay, 6 C. & P. 284 ; 4 Kent, Com. 116. * Sampson v. Henry, 11 Pick. R. 379 ; Newton v. Holland, 1 Man. & Gr. 625 ; 1 Scott, N. E. 491. These cases oyerrule Taylor v. Cole, 3 Term R. 292 ; 7 Ibid. 431 ; Argent v. Durant, 8 Ibid. 403 ; in which it was held, that the plea otUberum tenementum would be a good justification, in an action of trespass by the ejected p£irty for an entry and expulsion. * Feltham v. Cartwright, 7 Scott, 695. ' Brownson, Actions, 419. 30* 354 LAW OP LANDLORD AND TENANT. [CH. XII. in fact. And this, in truth, forms the distinction between this case and those before referred to ; for, in those cases, the entry being under an authority in law, the subsequent force made the entry a trespass ah initio, because the defendants had no lawful possession ,to justify under. § 533. After the tenant has quit possession, and Ms tenancy is ended, he has a right to enter upon the land, in order to remove his goods and utensils.^ But he can then take away such arti- cles of personal property only as are detached from the freehold ; for such fixtures as the law permits the tenant to remove must be removed before the expiration of the tenancy.^ Yet a tenant at will, when his interest is determined by a demand of possession on the part of his landlord, has no right to continue his possession for even a reasonable time to remove his goods ; though it seems he may enter to remove them, if he does not exclude the land- lord.^ A landlord who leases to a cropper for the year, to receive part of the grain as rent, has a lien upon the growing crop f and it cannot be removed by the tenant, or those acting under him, until the rent is provided for.^ So where, in a lease executed by both parties, was contained a covenant that, on the lessee's being removed from the demised premises, or dispos- sessed, he should be paid the value of the buildings and improve- ments made by him ; and that, on such payment being made, he shall yield the possession, an agreement by the lessor will be implied, that the lessee may retain possession until such payment is made, notwithstanding the term for which the premises were demised has expired.^ But where the tenant agrees to cultivate and bag the hop crop for the year, in payment of rent, the pro- perty in the hops is in the landlord, beyond the control of the tenant.^ It may be observed, also, before leaving this part of our subject, that, on the expiration of a lease, whether by forfeiture or otherwise, the lessor is not entitled to have the indenture of 1 2 Black. Com. 14 ; Ellis v. Paige, 1 Pick. E. 43. 2 Pitzherbert v. Shaw, 1 H. Black. 258. 3 Doe V. Jones, 10 B. & C. 724. * Case V. Hart, 11 Stanton, K. 364. 5 Van Eensselaer's Heirs v. Penniman, 6 Wend. E. 569. « Kelly V. "Weston, 20 Maine E. 232. CH. XII.] tenant's eight to emblements. 365 lease returned to him by the lessee, who has executed a couuter- part.i Section III. Tenant's Right to Emhlements. § 534. A tenant for life, or his representatives and under- tenants, and tenants at will, are entitled to emhlements; that is, to the annual productions of the soil, raised by the labor of the tenant, such as com, hops, flax, roots planted annually, and the like.2 But not to such things as are not of annual growth, or do not require the labor of the tenant, but are the permanent and natural product of the earth, such as trees, fruit, grass, &c.^ Nor does it extend to a crop which does not ordinarily repay the labor by which it is produced, within the year in which that labor is bestowed ; and will not, therefore, include a second crop of clover, although the first crop, taken at the end of the term, did not repay the expense of cultivation.* This privilege is allowed tenants for life, or at will, because of the uncertain nature of their estates, and lest they should be deterred from the proper cultiva- tion of their lands ; and the general rule as to emblements is this, that if the term is uncertain, so that the tenant, at the time he sows his crop, cannot know that his tenancy will continue until he shall have reaped it, he will be entitled to the crop as emblements. But if his term be certain, and not depending upon any contin- gency, and, at the time he sows the crop, he knows that his term will not continue until he shall have reaped it, then he will not be entitled to it as emblements ; although, perhaps, he may claim it as an offgoing crop, or to the value of it, by express stipulation with his landlord, or by the custom of the country, if such custom exists.^ 1 Hall «. Ball, 3 Scott, N. R. 577. 2 Bevan v. Briscoe, 4 Har. & Johns. 139 ; 5 B. & Ad. 118. = Knevitt v. Pool, Cro. Eliz. 463 ; Co. Lit. 55, b ; Cro. Car. 515. * Graves v. Weld, 5 B. & Ad. 105 ; 2 Nev. & Man. 725 ; Whitmarsh v. Cutting, 10 Johns. R. 361 ; Ibid. 424. 6 Ai-chbold, Land. & Ten. 337. 356 LAW OP LANDLORD AND TENANT. [CH. Xlt. § 535. This principle extends to all cases -wliere the tenancy is put an end to, ly act of (Jod or the law ; as if a lease be made to a husband and wife, so long as they continue husband and wife, and they are afterwards divorced, the tenancy being dissolved by the act of the law, the husband may enter upon the land, and exer- cise this privilege.^ It is the same also where a tenancy is termi- nated by the act of the landlord, or by a notice to quit proceed- ing from him.2 But it is entirely different where the tenancy is put an end to by the act of the tenant himself ; for if a tenant at will terminates his lease, by giving notice or otherwise, he has no right to take away any of the productions of the land after his tenancy ends.^ This is also the' case, if he is guilty of a breach of any condition in his lease which forfeits the lease ; or holds for a certain term, subject to be defeated upon a particular event, and such event is brought about by the act of the tenant ; as if land be leased to a widow for twenty years, provided she remain a widow so long, and she marries, and so terminates the tenancy by her own act.* ■Ji 536. This right, however, never exists where the tenancy is for years, to be determined at the expiration of a certain period ; for if, in such case, the tenant, with his eyes open, sows corn, which he knows cannot become ripe until after the expiration of his lease, the law will afford him no relief.^ But although no indulgence is given, in such cases, to tenants themselves, yet it is extended to under-tenants who have not participated in destroy- ing the estate.^ Where, therefore, a tenant for years, whose lease depended on a certain condition, underlet the land, and his under-lessee sowed corn, and afterwards the first tenant broke the condition, and so forfeited the lease, by means of which they were all ousted ; the under-tenant was, nevettheless, allowed to enter 1 Gland's Case, 5 Co. 116, b. ^ Oland V. Burdwick, Cro. Eliz. 460. 3 Debow V. Titus, 5 Halst. E. 128; Bulwer v. Bulwer, 2 B. & Ad. 470. 4 "Wicks V. Jordan, 2 Bulst. 213 ; Gland's Case, supra. » Co. Lit. 55 ; Davies v. Connop, 1 Price, 53 ; Bain v. Clark, 10 Johns. E. 427; Whitmarsh v. Cutting, Ibid. 361. « Doe dem. Upton v. Wetherwicb, 3 Bingh. 11 ; Bevans v. Briscoe, 4 Har. & Johns. 139. CH. XII.] tenant's eight to emblements. 357 and cut the com wlien it was ripe.^ Gasdeners and nursery- men, also, for the benefit of trade, after the expiration of the lease, may remove trees, shrubs, &c., planted by them with an express view to sale.^ Generally, where a tenant sows the land and dies, his executors shall have the emblements ; but there is an exception to this rule, for if he sows the land and dies, though the property of the corn is in the executors, it is subject to this condition, that if the heir assign to the widow the land sown, for her dower, she shall have the corn ; for she shall be in, says Lord Coke, de optima possessione viri, above the title of the exe- cutor.^ § 537. The common law made a distinction between the right to emblements, and the expense of ploughing and manuring the ground. The determination, by the landlord of an estate at will, will give the lessee his emblements, provided the lease is deter- mined after the crop is actually in the ground. But if the ouster occurs before the seed is sown, the tenant is not entitled to the crop, nor, in any case, to compensation for ploughing and manur- ing the land.* And if the tenant, during his occupation, by his labor annexes to the farm part of the waste land, formerly unsub- dued, it enures to the benefit of the landlord, without compensat- ing the tenant.^ A mortgagee, as against the mortgagor and his grantees, has the paramount right ; and, therefore, a lessee of the mortgagor, under a lease executed subsequent to the mortgage, is not entitled, as against the mortgagee, to crops growing on the mortgaged premises, at the time of the foreclosure and sale of said premises ; and the mortgagee becoming the purchaser, may maintain trespass against the lessee for taking and carrying away the crops.^ So a landlord, who reenters for a forfeiture, takes the emblements.''' ' Oland V. Burdwick, Cro. Eliz. 46 ; Bevans v. Briscoe, supra. 3 2 East, 90;- 7 Taunt. 191. 3 2 Inst. 81. * Stewart v. Douglity,'9 Johns. E. 108; 4 Kent, Com. 108; Putnam v. Eichie, Paige, E. 390-403. 6 Doe V. Murrell, 8 C. & P. 135. " Lane v. King, 8 Wend. E. 584. '' Dayis v. Eyton, 7 Bingh. E. 154. 358 LAW OF LANDLOED AND TENANT. [CH. XII. § 538. The reason of tlie rule, which allows emblements to a tenant for life or at will, would of course exclude a tenant for years or from year to year, from the exercise of this privilege ; he must suffer the consequences of his own folly, if, with a full knowledge of the period when he will be obliged to quit, he sows what he knows he cannot reap. But by the custom of the coun- try in particular districts, a tenant for years, whether by parol or deed, will be allowed to reenter and cut the corn which he has sown, after his lease has run out.^ Every demise, in respect to matters of which the parties are silent, is open to explanation by the general usage and custom of the country or district where the land lies ; and every person, says Mr. Justice Story, under such circumstances, is supposed to be cognizant of the custom, and to contract with reference to it.^ Upon this principle, a tenant for years in Pennsylvania, according to the custom of that State, is entitled to the way-going crop ; that is, to grain sowed in the autumn before the expiration of the lease, and coming to maturity in the summer after the lease is determined.^ The same custom was said, by Chief Justice Kirkpatrick, to be well established in New Jersey.* And in Delaware it exists as to wheat, but not oats.^ For a similar reason, in an action by a tenant against his landlord, for compensation for seed and labor, under the denomination of tenant-right, it was held that, although there was a written contract between them, the custom of the country would still be binding, if not inconsistent with the terms of such contract ; for that not only all common-law obligations, but those imposed by custom, were in full force where the contract did not vary them.^ § 539. But evidence of usage, though admissible to add to or explain, is never permitted to vary or contradict, either expressly 1 Wigglesworth v. Dallison, Doug. 201 ; 16 East, 71 ; 7 Bingh. 465. 2 Van Ness v. Packard, 2 Peters, E. 138 ; Stultz v. Dickey, 5 Bin. R. 285. » Deuri v. Bosler, 1 Penn. E. 224 ; Iddings v. Nagle, 2 "Watts & Serg. 22 ; 2 S. &E. 14. * Van Doren v. Everitt, 2 South. E. 460. ^ Templeman v. Biddle, 1 Harrington, E. 522. " Senior v. Armitage, Holt, N. P. Cas. 197. See also Webb v. Plumer, 2 B. & A. 750; Hutton v. Warren, 1 Mees. & Wels, 466; 2 Ibid. 442; Blackett v. Eoyal Ex. Co. 2 Tyrwh. 266. CH. XII.] tenant's eight to emblements. 359 or by implication, the terms of a written instrument. Therefore where a tenant covenanted, on quitting the land, not to sell or take away the manure, but to leave it to be expended by the suc- ceeding tenant, it was determined to exclude the custom of the country, by which the outgoing tenant was bound to leave the manure, and entitled to be paid for it.^ It was contended, says Lord Lyndhurst, delivering the judgment of the court in this case, that the stipulation to leave the manure was consistent with the tenant's not being paid for what was left, and that the custom to pay for the manure might be ingrafted on the engagement to leave it. But if the parties meant to be governed by the custom in this respect, there was no necessity for any stipulation, as, by the custom, the tenant would be bound to leave the manure, and would be entitled to be paid for it. It was altogether idle, there- fore, to provide for one part of that which was sufficiently pro- vided for by the custom, unless it was intended to exclude the other part. § 5'40. The general rule is, that where there has been an express contract, about a matter concerning which there is an established custom, this custom is reasonably to be understood as forming part of the contract, and may be referred to, to show the intention of the parties, in those particulars which are not expressed in the contract.^ But if the meaning of the contract is certain and beyond doubt, usage cannot be admitted to vai'y or contradict it.^ The usage, however, to be admissible, must be proved to be known to the parties, or be so general and well established, that knowledge and adoption of it may be presumed. Such proof must be by evidence of facts, and not of mere opi- nions ; by means of witnesses who have had frequent and actual experience of the custom, speaking from particular instances within their own knowledge.* The custom must also be certain and uniform.^ And the rule must be stated with this further 1 Roberts v. Barber, 1 Cr. & Mees. 208 ; Eeading v. Menham, 1 M. & Rob. 236. 2 1 Hall, E. 602 ; 2 Hill, (S. C.) R. 354; "Wilcox v. Wood, 9 Wend. R, 349. ' Macomber v. Parker, 13 Pick. R. 176. * Mills V. Hallock, 2 Edw. Ch. R. 652; 4 Stark. R. 452. 5 Stevens v. Reeves, 9 Pick. 198; Ceilings v. Hope, 3 Wash. 149; Chastain v. Bowman, 1 Hill, (S. C.) R. 270 ; Wood v. Hickock, 2 Wend. R. 501 ; Dawson v. Kittle, 4 Hill, (N. Y.) R. 107. 360 LAW OF LANDLORD AND TENANT. [OH. XII. qualification, that usage is never admissible to oppose or alter a general principle or rule of law, and, upon a fixed state of facts, to make the legal rights and liabilities of the parties other than they are by the common law.-' But in order to constitute such a custom, or, more properly speaking, usage, as is binding on the tenant, it is not necessary that it should have been immemorially adopted ; it is sufficient if there be a general usage, applicable to farms of a similar description.^ <§) 541. If a farm is leased for agricultural purposes, good husbandry, which, without any stipulation therefor, is implied by law, requires that the manure made upon it the last year should be left by the tenant to his successor ; if rented for other pur- poses, this conclusion might not follow.® The practice and usage of the neighboring country, and even in relation to a particular farm, will, however, enter into a decision of the question ; * since the parties are presumed to enter into the engagement with refer- ■ ence to it, where there is no express stipulation. And what may be good husbandry in respect to one particular soil, climate, &c., may not be so in respect to another. But, independent of the usage and custom of the place, Mr. Justice Buller stated the rule to be, that every tenant, when no particular agreement existed, dispensing with that engagement, is bound to cultivate his farm in a husband-like manner, and to consume the produce on it.^ In conformity to these principles, it has been decided in the State of New York that, where a farm is taken for agricultural purposes, and there is no particular agreement as to the manure that will be made on it during the occupation of the tenant, the manure does not belong to the tenant, but to the farm, and must be used on the farm ; and the tenant has no more right to remove it before the expiration of his term, or dispose of it to others, than he has to remove or dispose of any fixture belonging to the 1 I'rith V. Barker, 2 Johns. R. 327 ; Cole v. Goodwin, 19 Wend. 252 ; Story v. Bliss, 6 Mete. 393 ; Bryant v. Com. Ins. Co. 6 Pick. 131 ; 3 Nott & McCord, 121 ; 1 Dal. 265; 6 Bin. 416. 2 Dalby v. Hirst, 3 Moore, 536 ; 1 Br. & Bing. 224 ; Webb v. Plummer, 2 B. & A. 746 ; 3 N. & M. 214. 3 Woodfall, Land. & Ten. 255 ; Watson v. Welsh, 1 Esp. N. P. 131. 1 4 East, 154 ; Doug. 201 ; Watts, N. P. R. 197 ; 2 Barn. & Aid. 746. ^ Brown v. Crump, 1 Marsh. 567. CH. XII.] tenant's right to emblements. 361 farm.i A different rule, however, has been laid down in South Carolina, where it is held that a tenant, who is about to remove, has a right, if there is no covenant or custom to the contrary, to all the manure made by him on the farm ; that it is his personal property, and he may remove it as such.^ § 542. There are sometimes mutual privileges, founded on the common usage of the neighborhood, where no express agreement exists to the contrary, to which outgoing and incoming tenants are entitled. Thus in England, the outgoing tenant has the pri- vilege of retaining possession of the land on which his awaygoing crops are sown, with the use of the barns and stables for housing and carrying them away ; while the incoming tenant has the pri- vilege of entering during the continuance of the old tenancy, for the purpose of ploughing and sowing the land.^ The same rea- sonable privileges are believed to exist among us ; varying, pro- bably, according to the usages of particular sections of the coun- try, which, as we have just seen, is sufficient to confer such rights, without proof of an immemorial custom. We have ob- served, that an outgoing tenant has no claim to the manure remain- ing on the premises, when he leaves there, but the parties may, of course, agree to the contrary ; and where the outgone tenant covenanted to leave the manure, to be made by him on the farm, and sell it to the incoming tenant, at a valuation to be made by certain persons ; the effect of such covenant is, to give the out- gone tenant a right of onstand for his manure upon the farm, and the possession of and property in it remains in him in the mean time ; and, therefore, if the incoming tenant remove and use it before such valuation, he is answerable to the outgone tenant in trespass.* § 543. A tenant may, by his own acts, also lose the right to be paid for improvements, notwithstanding an agreement to that effect ; as it he leaves the premises, although with the consent of 1 Middlebrook v. Corwin, 15 Wend. 169; 2 Hill, 142; Stone v. Proctor, 2 Chip. 115. 2 Smithwick v. Ellison, 2 Iredell, K. 326. 3 Boraston v. Green, 16 East, 71. * Beaty v. Gibbons, 16 East, 116. 31 362 LAW OF LANDLORD AND TENANT. [CH. XII. the landlord, before the expiration of his tenancy, but without any fresh agreement.^ And it must be borne in mind, that any agree- ment between outgoing and incoming tenants, in relation to a sale of crops or manure, cannot prejudice the landlord's rights with respect to them.^ But, in general, all the hay, straw, grass severed, dead and live stock, and every personal chattel upon the farm at the expiration of the tenancy, belongs to the tenant, and may be removed by him, unless there be some custom of the coun- try to the contrary, or an express stipulation with the landlord. If there be both custom and stipulation, the latter will supersede the former, and must determine the tenant's rights. If, however, there be neither, the crops which are in the ground, or not severed before the expiration of the term, belong in strictness to the landlord.^ Section IV. The Tenants Right to Remove Fixtures. ^ 544. Fixtures are chattels, or articles of a personal nature, which have been affixed to the land in such a manner, as to make part of the realty to which they adhere, and therefore partake of its incidents and properties. According to the ancient law, it was waste for the tenant to take down or remove any thing affixed to the freehold, even although he had originally put it up for his own use ; and the principle holds good at the present day, as to all fixtures that belong to the landlord, and were attached to the free- hold when the tenant took possession, or which are subsequently annexed by the landlord.* As a general rule, every thing fixed to the land, — either immediately, as a house, or indirectly, as a window or door in the house, — was considered as belonging to the proprietor of the land; because the things so affixed could not Idc enjoyed apart from the land to which they were attached. And they were supposed to be affixed for the increased value of the land, inasmuch as the tenant so placing them could not call 1 Whittaker v. Barker, I Cro. & Mees. 113. 2 Petrie v. Daniel, 1 Smith, 199. s Caldecott v. Smythies, 7 Car. & P. 808. * Co. Lit. 53, a. CH XII.] THE tenant's RIGHT TO REMOVE FrXTUEES. 363 upon the owner for compensation ; having annexed them for his OTTO purposes, he cannot impose a duty on the landlord without his consent.^ As between the grantor and grantee of the fee, the doctrine of making fixtures part of the freehold has been more strictly apphed than between other classes of persons ; yet the general rule, even here, now is, that any thing of a personal nature, not absolutely affixed to the freehold, is not to be consi- dered as an incident to the land.^ But, as between landlord and tenant, the rigor of the old law became gradually relaxed, as a more just method of reasoning suggested that a man may have occasion to fix a chattel belonging to himself to the land of ano- ther, and yet not be willing to part with -his ownership in such chattel ; that it might become necessary, for the comfortable or profitable occupation of a house, that the tenant should put up things for his own use ; and it would be unjust to consider such articles the absolute property of the owner of the house, when the tenant has manifestly placed them there for his own purposes.^ Courts of law subsequently adopted the principle, that it is for the benefit of the public to encourage tenants to make improve- ments in trade, and to do what is advantageous for the estate dur- ing the term, with the certainty of their being benefited by it at the end of the term.* And in modern times the rule is under- stood to be, that, upon principles of general policy, a tenant, whe- ther for life, for years, or at will, is permitted to carry away all such fixtures of a chattel nature, as he has himself erected upon the demised premises, for the purpose of ornament, domestic conve- nierice, or to carry on trade ; provided the removal can be effected without material injury to the freehold. § 545. As regards trade fixtures, it may be stated, in general terms, that a tenant may take away whatever he erects for the purpose of carrying on trade, whether it be machinery oj build- ings, even though affixed to the soil or freehold. This principle was first distinctly recognized in a case where a tenant for years, who was a soap-boiler, for the convenience of his trade put up 1 Culling V. Tuffnell, Bull. N. P. 34. "■ "Walker v. Sherman, 20 Wend. E. 637. 3 Beck «. Bebow, 1 P. Wjois. R. 94. * Lawton v. Lawton, 3 Atk. R. 13. 364 LAW OF LANDLOED AND TENANT. [CH. XII. vats, copper tables, &c., upon the demised premises. Chief Jus- tice Holt held they might be removed during the term, not by virtue of any special custom, but by the common law, in favor of trade, and to encourage industry.^ There have been similar adjudications in the case of a baker's oven ; ^ salt pans ; ^ carding- machines ; * cider-mills and furnaces ; ^ steam engines ; ^ copper stills, &c., erected to carry on the business of a distillery, though fixed to the building ; ^ or a stone for grinding bark, affixed to a bark-mill.^ Of the same character are buildings called Dutch barns, standing on a foundation of brickwork in the ground ; ^ or a varnish house, for carrying on a varnish manufactory, built on a brick foundation with a chimney.^" § 546. This doctrine was fully considered in the Supreme Court of the United States, where Mr. Justice Story held, that the question whether a given article is capable of removal does not depend upon the form or size of the building, whether it has a brick foundation, is one or more stories high, or has a chim- ney ; but that the only question is, whether it is designed for the purpose of trade ; that a tenant may erect a large as well as a small messuage, or a soap-boilery of one or two stories high, and on such foundations as he chooses, and is not liable for waste in pulling down and removing a wooden dwelling-house, with a stone cellar and brick chimney, which he erected upon a lot of land he had rented for a term of years, for the purpose of carrying on the business of a dairyman, and for the residence of his family and servants engaged in the business.^^ And where a tenant for 1 Poole's Case, 1 Salk. E. 368 ; Union Bank v. Emerson, 15 Mass. E. 159. 2 Tear Book, 20 Henry VII. 13, b. » 1 H. Black. 259, n. ; Pillow v. Lore, 5 Hayw. 109. * Taffe V. "Warwick, 3 Blackf. 111. 5 Holmes v. Tremper, 20 Johns. E. 29 ; Lawton v. Lawton, 3 Atk. 14. ° Cook V. Champlain Transp. Co. 1 Denio, E. 92 ; Swift v. Thompson, 9 Conn. E. 63 ; Dudley v. Dudley, cited by Lord Kenyon, 4 Esp. 34. T Eeynolds v. Shuler, 5 Cow. E. 323 ; Eaymond v. White, 7 Cow. E. 319. * Heermance v. Vemoy, 6 Johns. R. 5 ; Taylor v. Townsend, 8 Mass. 416. " Dean v. Allalley, 3 Esp. N. P. C. 11 ; Wells v. Bannister, 4 Mass. 514. 1° Penton v. Eobart, 2 East, 88; Eex v. Otley, 1 B. & Ad. 161. 11 Van Ness v. Packard, 2 Peters, E. 137; Washburn v. Sproat, 16 Mass. E. 449 ; Pemberton v. King, 2 Dever. (S. C.) E. 376 ; Fairies v. Walker, 1 Bailey, (N. C.)E.541. CH. XII.] THE tenant's EIGHT TO KEMOVB FIXTURES. S65 years took down and removed an old shop standing on the leased premises, and erected a new one on its foundation for the same purposes, the use of a portion of the materials of the old shop in the construction of the new one by such tenant, was held not to vest the title to the latter in the owner of the former, if the new shop is a different and distinct building from the old shop, and not the old one repaired or reconstructed ; the title to the new shop, in such case, turning on the question, whether it is substantially and essentially the same building as the old one.^ The principle has been held to extend to gardeners and nursery-men, who are considered tradesmen, and may take away their greenhouses and hothouses, with all trees, shrubbery, &c., planted for the purpose of sale.2 But a person who occupies land as a farmer, and is not a professed nursery-man or gardener, cannot carry away young fruit trees raised on the demised premises, for the purpose of planting in his gardens or orchards.^ § 547. Domestia fixtures are all such articles as a tenant fixes to a dwelling-house, in order to render his occupation more com- fortable or convenient, and may be separated from it without doing substantial injury ; such as furnaces, stoves, cupboards and shelves, bells, &c. ; * or things merely ornamental, as painted wainscots, pier and chimney glasses, although attached to the wall with screws, marble chimney-pieces, grates, beds nailed to, the walls, window-blinds and curtains.^ All these articles, whether useful or ornamental, are in a manner necessary to the tenant's domestic comfort, and, being easily severed from the house, are capable of being equally useful to him in any other house he may occupy. But things which he affixes to the house in a more per- manent manner, in order to complete it, such as hearth-stones,® doors ^ and windows, shelves, closets, presses, locks and keys,^ he 1 Beers v. St. John, 16 Day, 322. = King V. Wilcomb, 7 Barb. E. 263 ; 2 East, E. 90 ; 7 Taunt. E. 191. . s "Wyndham v. Way, 4 Taunt. 316. " Eex V. St. Dunstan, 4 B. & C. 686 ; Lee u. Eisdon, 7 Taunt. 191 ; 1 B. & C. 77 ; 5 B. & A. 625 ; 6 T. E. 379 ; 7 C. & P. 328 ; 6 Bing. 437. 6 Beck V. Eebow, 1 P. Wms. 94 ; Lawton v. Lawton, supra. 8 Poole's Case, 1 Salk. 368, cited 3 East, 38. ' Kinlyside v. Martin, 2 Black. E. 111. 8^ady St. John v. Piggott, 2 Bulst. 103 ; Liford's Case, 11 Co. 50. 31* 366 LAW OF LANDLOED AND TENANT. [CH. XU. cannot take away, because such things are peculiarly adapted to the house in which they are fixed, and, if taken away, injure the pre- mises.^ So, also, all substantial additions made to the house become part of the freehold, and are immovable, such as conserva- tories, greenhouses, hothouses, pigstyes, stables, wash-houses, and other outhouses ; ^ neither can he remove shrubbery, flowers, &c., planted by him in the garden.^ § 548. This privilege, however, has not generally been extended to the case of buildings, outhouses, &c., erected for agricultural purposes; though it is difficult to perceive why such fixtures should stand upon a less favorable footing than trade fixtures, when the relative importance of the two arts to the community is considered. The industry of the farmer will, of course, be more productive in proportion to the improved condition of his build- ings, and his advantages for rearing stock and storing produce ; and it seems but a narrow policy which refuses to the agricultural tenant the same protection that is extended to the improvements of the manufacturer. The doctrine was strongly laid down by Lord EUenborough, in an English case, where the tenant of a farm, under a lease for twenty-one years, erected at his own expense a variety of substantial buildings for agricultural pur- poses, with foundations a foot and a half in the ground ; and, pre- vious to the expiration of his lease, pulled down the erections, dug up the foundations, and carried away the materials, leaving the premises in the same state as when he entered upon them. The court were of opinion, that to permit him to do so would be an innovation upon the uniform current of legal authorities on the subject.* In the case before referred to, however, containing the opinion of Mr. Justice Story, that distinguished judge questioned whether the English doctrine was applicable to the circumstances of this country, and, in fact, seems clearly to have repudiated it. And in Massachusetts the rule applicable to trade fixtures was sub- 1 2 Bulst. 113 ; Cro. Jac. 329 ; 2 Black. E. 1111 ; 2 Ves. & B. 349. 2 Buckland ;;. Butterfield, 2 B. & R. 54 ; 4 B. M. 240 ; Penry v. Brown, 2 Stark. C. 403. » Empson v. Soden, 1 N. & M. 720 ; S. C. 4 B. & Ad. 656 ; 2 East, 91. As to strawberry beds, see 1 Campb. 227. * Elwes V. Mawe, 3 East, R. 38. CH. xn.] THE tenant's eight to EBMOVE EIXTUEBS. 367 sequently extended to an agricultural tenant ; who was permitted to remove all improvements the removal of which would not injure the inheritance.^ So, also, in the New York case referred to, Judge Harris stated the rule to be general, that a tenant who makes additions or improvements upon the land, for the purpose of its better use and enjoyment, may rightfully remove such addi- tions and improvements, at any time before his right of enjoy- ment expires.^ Besides, if the thing in question is so constructed as not to become affixed to the land or house, it is a mere chattel, and cannot, under any circumstances, be considered a fixture. Thus if a tenant erect a barn, and put it upon pattens and blocks of wood lying on the ground, but not let into the ground, it is no fixture, and may be removed.^ So a cider-mill and press erected by a tenant from year to year, also a post rail fence, have been held to be personal property, removable by him.* And the erection of a chimney does not prevent ' the right, which would otherwise have existed, of removing the surrounding building.^ "J) 549. So completely are movable fixtures considered the per- sonal property of the tenant, that they may be stripped from the house, and seized and sold under an execution against him, as his goods and chattels; and the tenant may also sell or mortgage them, although they are not distrainable for rent until after they have been permanently separated from the freehold by the tenant, for the purpose of being applied to some other use.^ On his death, they go to his executor or administrator, and not to the heir ; they are devisable, and by a conveyance they pass to the vendee.'' The tenant's right of removal, however, does not depend altogether upon the general law, but may be governed by a special custom, or the lex loci ; and the principles we have for- merly noticed under the head of emblements, relative to the 1 Whiting V. Brastow, 4 Pick. E. 310. ^ King V. Wilcomb, supra. 3 Smith V. Benson, 1 Hill, (N. T.) E. 176 ; CulUng v. Taffnell, BuU. N. P. 34; 9 East, 215 ; 8 Bingh. K. 186 ; 2 B. & A. 165. * Holmes v. Tremper, supra ; Ktzherbert v. Shaw, 1 H. Black. 258. 5 2 Bast, K. 88 ; 4 Esp. E. 33 ; Van Ness v. Packard, supra. " Eeynolds v. Shuler, 5 Cow. E. 323 ; Vausse v. Eussell, 2 McCord, 329. 7 20 Wend. E. 637 ; 9 Cow. E. 307 ; Watts, 378. 368 LAW OF LANDLOED AND TENANT. [CH. Xn. effect of usage in regulating the general relation of landlord and tenant, are equally applicable to the law of fixtures. But such usage will never be permitted to contravene an express agree- ment ; and therefore buildings, though erected for the purposes of trade, cannot be removed by the lessee, if his lease contains an express covenant to repair, and yield up at the end of the term buildings erected during the term.^ <^ 550. The rule, as regards the removal of any fixture, requires that the article he capable of removal, without the destruction or serious injury of the freehold ; that is, the pre- mises must be in as good plight and condition after removal as they were before annexation.^ And it is a question for a jury to determine in all cases, pursuant to these principles, whether a given article is removable or not.^ It is to be understood, also, that whenever a fixture is removed the tenant must repair any injury the premises may sustain by the act of removal. Or if an article has been put up in substitution of another, which was attached to the premises at the time of the demise, the tenant, on taking down his own fixture, is bound to restore the former, or to replace it by another erection of a similar description.* § 551. The decisions, also, uniformly agree, that whatever fixtures the tenant has a right to remove must be removed before Ms term expires, or at least before he quits possession ; for if the tenant leave the premises without removing them, they then become the property of the landlord.^ The tenant's right to remove is rather considered as a privilege allowed him, than an absolute right to the things themselves, as distinct from the land. If he does not exercise this privilege before his interest expires, he cannot afterwards ; because the right to possess the 1 Naylor v. CoUings, 1 Taunt. R. 21 ; Thresher v. East London W. W. 2 B. & C. 608. 2 Whiting V. Brastow, 4 Pick. E. 311 ; Kirwan v. Latour, 1 Har. & Johns. 289; Lawton v. Lawton, 3 Atk. R. 13. 8 Avery v. Cheslyn, 5 Nev. & M. 373 ; 3 Ad. & El. 75 ; Winslow v. Merchants Ins. Co. 4 Met. E. 306. * Foley V. Addenbrooke, 13 Mees. & Wels. 197. 6 Reynolds v. Shuler, supra; Eitzherbert v. Shaw, 1 H. Black. 2S8; Lyde v. BusseU, 1 B. & A. 394; 7 Taunt. E. 191. CH. XII.] THE tenant's BIGHT TO EEMOVB FIXTURES. 369 land, and the fixtures as part of the realty, vests immediately in the landlord ; and although the landlord has no right to complain if the land be restored to him in the same plight it was before he made the lease, yet, if the land be suffered to come to him with additions and improvements, he has a right to consider such addi- tions and improvements as part of his property. Nor is this any injustice to the tenant ; for it is his own fault if he suffers the land to return to the landlord with the fixtures annexed. But where the tenant holds over, even so far as to become a tres- passer, he will not be considered as having abandoned the things he had a right to remove ; as where a tenant had underlet a part of the premises to an under-tenant, who erected a building for the purpose of making varnish, in which he carried on his trade, and, after the term had expired, the landlord was obliged to bring a suit against the under-tenant, to recover possession of the premises, who thereupon pulled down the building and carried away the materials, while the suit was pending ; the court were of the opinion that he had a right to do so, for that being in pos- session of the premises at the time the things were taken away, there was no pretence for saying that he had abandoned his claim to them.^ § 552. If a tenant, at the close of his term, renews his lease, and acquires a fresh interest in the premises, he should take care to reserve his right to remove such fixtures as he had, under the old tenancy, a right to sever. For where his continuance in pos- session is under a new lease or agreement, his right to remove fixtures is determined, and he is in the same situation as if the landlord, being seized of the land together with the fixtures, had demised both to him.^ But if, in consequence of a verbal agree- ment with his landlord to purchase the fixtures, a tenant neglects to remove them during the term, he cannot be supposed to have abandoned them to his landlord.^ There are cases, also, in which, from the very nature of the tenancy, the lessee must have the pri- 1 Penton v. Eobart, supra. Also reported by Esp. N. P. C. 33 ; Davis v. Jones, 2 B. & A. 166 ; Weetou v. Woodcock, 7 Mees. & Wels. 14. " Pitzherbert v. Shaw, 1 H. Black. E. 258 ; 2 B. & C. 608 ; 4 D. & R. 62 ; Lee V. Eiston, 7 Taunt. E. 191 ; Colgrave v. Bias Santos, 1 Bam. & Ores. 79. » Hallen v. Eunder, 3 Tyr. 959. 370 LAW OE LANDLOED AND TENANT. [CH. XII. vilege of removing fixtures after the termination of Ms interest ; such as where he holds under any uncertain term or contingency, as for life, or upon the happening of an event. In such cases, no presumption of gift arises, and the property still remains in the tenant. He therefore has the right of removing them after his term has ended, provided he exercises such right within a reason- able time.^ Another exception to the rule also prevails in favor of nursery-men ; for in the case of a letting of land for the pur- pose of nurturing trees' and plants until they are ready to be transplanted, in the absence of any express agreement, the inte- rest of the tenant in the land, for the purpose contemplated by the parties, will be held to continue until that purpose is accom- plished ; and the tenant will be allowed to cultivate the trees until they are prepared for transplanting, and then from time to time to remove them.^ § 553. Where property is demised with the fixtures, the tenant's interest in them is similar to that which he enjoys in respect to trees ; if he severs them, the right of possession imme- diately reverts to the landlord.* So, on his quitting possession of the land, the property of the fixtures vests in the landlord, and though they are subsequently severed, the tenant's right to them does not revive. This was held in a suit brought by a tenant from year to year, for bells, pulls, cranks, and wires, which he had hung at his own expense ; after he quit possession the land- lord took down the bells, intending to sell them, and refused to deliver them to the tenant, but the tenant was not allowed to recover.* Where a tenant, therefore, has a right to remove fixtures, and wishes to leave them on the premises after the expi- ration of the term, for the purpose of valuing them to an incoming tenant, or for any other purpose, it can only be with his landlord's consent ; for if, without such consent, they remain on the pre- mises after the expiration of the term, the tenant loses his property in them.^ 1 Weeton v. Woodcock, supra. 2 King V. Wilcomb, supra. = Farrant v. Thompson, 5 B. & A. 826. •• Lyde v. Kussell, 1 Barn. & Ad. 394. 5 Minshall v. Lloyd, 2 M. & W. 450. CH. XII.] THE tenant's RIGHT TO REMOVE FIXTURES. 371 § 554. The rights of parties, respecting particular articles, will be much regulated by custom ; and, therefore, where it has been a custom to value a particular article, between outgoing and incoming tenants, it is a proper criterion for determining the nature of the property, and whether it is a fixture or not.^ A tenant may, by the terms of his agreement, not only vary his rights as to the description of articles he is entitled to remove, but may enlarge the time of their removal and subject himself to greater restrictions, or secure to himself greater privileges in the ultimate disposition of them, than would attach to him merely as tenant. As, for example, where he has, by the terms of his lease, the privilege of selling his fixtures, by valuation, to an incoming tenant, his property in the fixtures would not determine at the expiration of the lease, and he would still have a right of onstand on the premises.^ He may, in fact, acquire an almost unlimited power by the terms of his lease, of removing things which he affixes to the freehold; as if his demise for years contains the clause without impeachment of waste, this condition will have the same effect as if it were inserted in a demise of an estate for life.^ By entering into special conditions of this nature, the parties entirely change the situation in which they would stand to each other, from the mere relation of landlord and tenant ; and the claims in controversy would, in such cases, resolve themselves into questions of construction, where the only point for determi- nation is, whether the article in question falls within the terms of the agreement or not.* It is not unusual, however, for the sake of avoiding disputes, to insert clauses in the lease for removing fixtures, as that the tenant shall have the liberty to remove all the machinery and erections he puts up. And it may be almost unnecessary to observe, that where, at the time of making a demise, nothing is said respecting the fixed articles belonging to the premises, the tenant will be entitled to the use of them during his tenancy, as part of the demise ; and the landlord cannot after- wards remove them, or insist upon their being valued or paid for.^ 1 Davia v. Jones, 2 B. & A. 166. 2 Beaty v. Gibbons, supra ; Bum v. Miller, 4 Taunt. E. 745. s 1 Com. Dig. tit. 8, ch. 2, ^ 12. 1 Kex V. Topping, Trin. T. 6 Geo. IV. 6 In the case of King v. Wilcomb, referred to in the text, Mr. Justice Harris remarks, with that clearness and precision which distinguish the learned judge, 372 LAW OF LANDLORD AND TENANT. [CH. XII. — " The ancient rule, that whatever was attached to the freehold by the tenant became part of the freehold, and could not afterwards be remoyed by him, has gradually been relaxed in favor of the tenant, until now I understand the general rule to be, that any one who has a temporary interest in land, and who makes additions to it or improvements upon it, for the purpose of the better use or enjoy- ment of it, may, while such temporary interest continues, at any time before his right of enjoyment expires, rightfully remove such additions and improvements- If he omit to sever the addition or improvement until his right of enjoyment ceases, such omission is to be deemed an abandonment of his right, and thereafter the addition or improvement he has made becomes, to all intents, a part of the inheritance ; and the tenant, as well as any other person who severs it, becomes a trespasser. I think this may now be stated to be the general rule in respect to fixtures, which a tenant attaches to the freehold. To this extent the original rule of the common law, guicquid plantatur solo, solo cedit, yielded to the changed condi- tion of society. Public policy, especially in this country, requires that the tenant should be permitted so to use the premises he occupies, as to derive the greatest . amount of profit and comfort, consistent with the rights of the owner of the free- hold. There maybe exceptions to the general rule I have stated, but I think they will be found limited to cases, where the removal of the additions or improve- ments made by the tenant would operate to the prejudice of the inheritance, by leaving it in a worse condition than when the tenant took possession." CH. XIII.] THE landlokd's ebmedies. 373 CHAPTER XIII. THE landlord's EEMEDIES. § 655. The respective rights and obligations of the landlord and tenant having been disposed of, it now remains to explain the various remedies or means by which those rights may be enforced. They naturally fall under the division of, 1. The landlord's pro- ceedings against the tenant ;• and 2. Those of the tenant against the landlord. Of the former class are those for the recovery of rent by distress, or by actions of debt, assumpsit, covenant, or bill in equity ; actions to prevent waste, or recover damages for its commission ; and actions to recover possession of the premises, by ejectment, or by summary proceedings under the statute. The latter class comprehend actions of replevin, trespass, case, and covenant ; while the proceedings for a forcible entry and detainer are common to both landlord and tenant. This last proceeding, however, is punishable rather as a breach of the peace, than an offence against the property of an individual, and, as such, is indictable at common law ; but in our observations we shall regard it simply as a private remedy, incident to the relation of landlord and tenant. We propose to adhere to the common-law distribu- tion of remedies as now enumerated ; for although the Code of Procedure of New York, as well as the statutes of many of the States of the Union, have abolished the long-estabhshed distinc- tions between actions at law and suits in equity, with their respect- ive forms, and have substituted one form of action for the enforce- ment or protection of all private rights, and the redress of all pri- vate wrongs, yet the distinctive principles which govern all reme- dies are still retained; nor have the laws of any of the States attempted to abolish them. There is no change in the inherent difference between legal and equitable relief; there can be none in th& nature of things ; and all legislative action seems, thus far, to have resulted in abolishmg the technical distinctions between legal and equitable remedies, and the blending into one tribunal of the several functions formerly performed by sep&rate courts of law and equity, leaving the prmciples of pleading untouched. We 32 374 LAW OP LANDLOBD AND TENANT. [CH. XIU. think, therefore, the course we have indicated, that of retaining the former division of actions, will be found both perspicuous and convenient, in treating of the remedies connected with the subject of our essay. Section I. Of a Distress for Bent. § 556. A distress for rent is one of the most ancient and effi- cient remedies known to the law, and by far the most important means in the landlord's possession for the collection of rent ; ena- bling him to secure to himself a regular remuneration for the tenant's occupation, by seizing the goods and chattels which have enjoyed the shelter and protection of his premises, holding them in pledge for a period, giving the tenant an opportunity to redeem, and, if not redeemed after reasonable notice, to proceed and sell them in satisfaction of his dues. This proceeding is said, by Lord Chief Baron Gilbert, to have been derived from the civil law ; ^ by which land that was let to the tenant was hypothecated, or held as a pledge in his hands, to answer the rent agreed to be paid to the landlord ; and the whole profit? arising from the land were liable to be sold for the payment and satisfaction of it. It is certainly a remedy of very high antiquity, and is known to have prevailed among the Gothic nations of Europe immediately after the breaking up of the Roman Empire, and from them was proba- bly carried into England.^ The English Statutes, from the days 1 Gilbert on Eents, 3 - 26 - 92. By the Eoman law a landlord's lien for the rent of his farm was confined to the produce of the field, and did not extend to implements of husbandry or cattle ; but, in the case of a house rented, all the mov- ables in the house were liable to distress for the rent. Dig. 20 - 27. 2 Spelman's Gloss. Parous. Mr. Chancellor Kent, with his usual elegance, has thus sketched the policy and bearings of this provision of law. " The contract for rent and the remedy of distress are in constant use and application ; and in our cities and large towns there are few branches of the law that afi^ect more sensibly the interests of every class of the people. The law may be deemed rather prompt and strict, with respect to the interests of the landlord ; but I am inclined to think it is a necessary provision, and one dictated by sound policy. It is best for the tenant that he should feel the constant necessity of the e.irly and punctual perform- CH. Xin.] OF A DISTRESS EOR RENT. 375 of Magna Charta to the present time, have regulated, and in some instances extended its features, to meet the exigencies of the times ; and our State Legislatures have adopted, and in some cases modified the English provisions, recognizing it as a salu- tary and necessary remedy, equally conducive to the security of the landlord and the welfare of society, in its present con- dition. § 557. According to the old definitions, a distress was the tak- ing of the personal chattel of a wrongdoer into the possession of the party aggrieved, as a pledge for the performance of a certain duty, or the satisfaction of a wrong committed ; and the distrainor was bound to hold the pledge in his custody until the pledgor thought proper to redeem it. This power was given to the lord, in lieu of a forfeiture of the land, for the purpose of compelling the tenant to perform those services which were the consideration of his enjoyment of the land. Hence the distress was considered merely a pledge, and the detention thereof was justifiable only so long as the duties incident to the tenure remained undis- charged. If the tenant offered gages and pledges for the per- formance of the services, and the lord, after such offer, persisted in detaining the distress, the tenant might sue out a writ of reple- vin ; which was considered so much a matter of right, that if a person by deed granted a rent, with a clause of distress, and granted further that the distress taken should be irreplevisable, yet it might be replevied, because such a restriction was held to be contrary to the nature of a distress.^ But in modern times the whole policy of the law respecting distresses has been changed, and a distress for rent is now no more than a summary method of seizhig and selling the tenant's property, to satisfy the rent which he owes. ance of his contract. It stimulates to industry, economy, temperance, and wake- ful Tigilance ; and it would tend to check the growth and prosperity of our cities, if the law did not afford to ^landlords a speedy and effectual security for theii' rents, against the negligence, extravagance, and frauds of tenants. It is that secu- rity which encourages moneyed men to employ their capital in useful and elegant improvements. And if they were driven, in every case, to the slow process of a suit at law for their rent, it would lead to vexatious and countless lawsuits, and he in many respects detrimental to the public welfare." 3 Kent, Com. 485. 11 Inst. 45, b. 376 LAW OF lANDLOED AND TENANT. [CH. XIII. § 558. The common law of England, and most of her statutory provisions regulating a distress for rent, have been generally adopted in the United States.^ In the New England States, the law of attachment on mesne process has superseded the law of dis- tress for rent ; but under their attachment laws the principles of the common-law doctrine of distress have been essentially as- sumed, subject to the same checks and limitations which, under the English statute law and modern decisions, have modified and improved it.^ The State of New York has recently abolished dis- tress" for rent, regarding it as an invidious distinction in favor of a particular class of creditors, which has survived similar reme- dies applicable to other debts ; sometimes operating unjustly towards other classes of creditors who are equally entitled to pro- tection. The courts of North Carolina have held it inconsistent with the spirit of her laws and government,' and declare that the common-law process of distress does not exist in that State.^ It is, however, in force in South Carolina ; and the statute of 1808 even allows landlords to distrain for double rent, where a tenant holds over for three months after notice to quit.* In Georgia, it is limited to the cities of Savannah and Augusta ; in other parts of that State there is no distress for rent. In Alabama, Tennes- see, and Ohio, there are no statutory provisions on the subject, except one in the latter State, to secure the landlord's share of the crops from execution against the tenant.^ Mississippi has abolished it by statute, but property shall not be taken in execu- tion on the premises, unless a year's rent, if it be due, shall be first tendered to the landlord.^ And in Louisiana the landlord may follow the furniture removed from his premises fifteen days after removal ; and, if removed without his consent, he may seize 1 Hartshorn v. Kierman, 2 Halst. E. 29 ; 4 Ibid. 110; Woglam o. Cowper- thwaite, 2 Dal. K. 68 ; Garret v. Hughlet, 1 Har. & Johns. 3 ; 7 Ibid. 370 ; 1 Mc- Cord, K. 299 ; Ridge v. Wilson, 1 Blackf. (Ind. ) E. 409 ; Owens v. Connor, 1 Bibb, E. 607 ; Mayo v. Winfree, 2 Leigh, 370 ; Burket v. Bonde, 3 Dana, (Ky.) E. 209 Dudley, E. 105 ; Wallcer, (Miss.) E. 170. 2 Potter V. Hall, 3 Pick. E. 360. ^ Dalgleish v. Grandy, Cam. & Nor. E. 22 ; Youngblood v. Lowry, 2 McCord, R. 39 ; Deaver v. Eice, 3 Battle, E. 431. * Talvande v. Cripps, 3 McCord, E. 147 ; Eeeves v. McKenzie, 1 Bailey, 497. 6 Griff. Law Eeg. 404 ; Aiken, Dig. 357. « Griff. Law Keg. 697. CH. XIII.] OF A DISTRESS FOR BENT. 377 the goods and sell them to satisfy his claim, provided they conti- nue to be the property of the lessor.^ § 559. Bent-service was the only kind of rent originally known to the common law, a right of distress being incident thereto, so long as it was due to the lord who was entitled to the fealty. It was called rent-service, because it was given as a compensation for the military service to which the land was originally liable. Where a rent was granted out of lands by deed, the grantee had no power to distrain for it, because there was no fealty annexed to such a grant ; for by the statute of quia emptores, 18 Edw. I., when a tenant alienated his whole estate, the alienee held imme- diately of the lord, and not of the alienor ; by which means the reversion, as well as the services, being divested out of the alienor, he could not distrain for a rent reserved upon his aliena- tion, but it was in his hands a mit^gc^. To remedy this inconve- nience, an express power of distress was inserted in grants of this kind, where the landlord had no reversion or future inte- rest in the land ; and it was thence called a rent-charge, because the land was by the deed charged with the distress. A rent-seek was, in effect, nothing more than a rent, for the recovery of which no power of distress was given, either by the rules of the common law or the agreement of the parties.^ In the first case, the com- mon law gave the power of distress to the landlord, as an incident to the render of service ; but in no other case had he such power, except by force of such an agreement. <§. 560. These distinctions, however, became of little conse- quence after the statute of 4 Geo. II. c. 28, which so far abo- lished the distinction between different kinds of rent, as to give the remedy of distress in all cases of rent-seeh as of rent reserved upon a lease ; and such was the effect of the Revised Statutes of New York, which was almost a transcript of the English statute. Previous to this statute, a distress could only be taken by him who had a reversionary interest in the premises ; and if a man made a feoffment, or lease in fee, reserving rent but leaving no 1 Civil Code of Louisiana, 2675. 2 Co. Lit. 142, a i 143, b ; Bradby on Dist. 24. 32* 378 LAW OP LAITDLOKD AND TENANT. [CH. XIH. reversion in Mmself, lie could not distrain for such rent, unless lie had expressly reserved a power of distress.^ The statute separ rated the right of distress from the reversion to which it had before been incident, and placed all rents upon the same footing as if the power of distress had been expressly reserved. In all those States, therefore, where this statute has been adopted, that which before the statute of quia emptores would have been a renf- seeh becomes a rent-charge ; and a grantor who has reserved rent may, in all cases, distrain for it, though he has no reversion.^ But it is to be observed, that the statute provides for no reserva- tion which would not, at least, amount to a rent-seek at common law, issuing out of lands and tenements. And as rent cannot issue out of a mere chattel,^ it has been repeatedly held since the statute, that if a lessee for years assigns his whole term, reserving rent, but without a special clause authorizing a distress, he can- not distrain upon such reservation, and his only remedy is upon the contract between himself and assignee.* \ 561. There can be no distress unless there be a demise, at a certain fixed rent, either in money, produce, or services, payable at a time certain ; or unless the amount, if not fixed, is capable of being reduced to a certainty by calculation.^ As where the rent is payable in repairs to be put upon the demised premises, to a certain specified amount ; ® or to shear all the sheep depastur- ing in the landlord's manor, by way of rent, without putting it at a certain value in money in the lease, although the number of sheep may vary from time to time ; for this is capable of being reduced to a certainty by referring to the usual number of sheep, and then calculating the price or value of shearing them.^ But 1 Prescott u. Deforest, 16 Johns. K. 159 ; 2 "Wils. E. 375 ; 1 Term E. 441 ; Cor- nell V. Lamb, 2 Cow. E. 652 ; Co. Lit. 143, b. 2 Bradbury v. "Wright, Doug. 624. 3 Co. Lit. 47, a ; 142, a ; 2 Ves. 170 ; 2 Wils. 75. ■■ Palmer v. Edwards, Doug. 187; Burne v. Eichardson, 4 Taunt. 720; Par- menter v. Webber, 8 Ibii#593 ; Preece v. Corrie, 5 Bing. 25. 5 Valentine v. Jackson, 9 Wend. E. 322 ; Dunk o. Hunter, 3 B. & A. 322 ; Grier v. Cowan, Addis. 347 ; Wells v. Homish, Penn. R. 31 ; Eeeves v. McKen- zie, 1 Bailey, E. 500 ; Jacks v. Smith, 1 Bay, E. 315. •i Smith V. Colson, Johns. E. 91 ; 2 Cow. E. 656. ' Co. Lit. 96, a. In South Carolina it is said no distress will lie, unless the rent is expressly reserved, and that the reservation of a specific sum, as rent CH. XIII.] OF A DISTBESS FOR RENT. 379 this mode of computation is to be taken -with the qualification, that it must not be subject to continual deductions, as for the erection of new buildings, or the like.^ § 562. In a case where the lease reserved an annual rent of three dollars an acre for all improved land on the demised pre- mises, the tenant agreeing to build a certain quantity of stone fence, part at so much per rod, and the residue for such price as might thereafter be agreed upon by the parties, the whole to be applied to the payment of the rent ; it was held, that these latter provisions did not make the rent so uncertain as to prevent the landlord from distraining.^ And though the tenant hold under a void lease, it may still be resorted to as evidence to make the rent for the current year certain, and so confer a right of distress on the landlord.^ But if the premises are demised at a fixed rent, and the tenant enters, but is prevented from obtaining the whole of the premises by a person holding part under a prior lease executed by the landlord, the latter has no right to distrain for a proportionable part of the rent reserved, by deducting the value of the part held under the prior lease and demanding the residue ; though in such case he might be entitled to recover in an action of use and occupation upon a quantum meruit.^ § 563. In order to sustain the right of distress, the relation of landlord and tenant must be actually completed and not merely in contemplation ; there must be an actual demise and not a mere agreement for a lease ; ^ but when this relation is once estabhshed, the right of distraining, as incident thereto, can only be taken away by that which amounts to a dissolution of the tenancy.® eo nomine, is the true criterion of a party's right to distrain for rent in arrear. Mar- shall V. Gibbs, 2 Tr. Con. E. 637. In Indiana distress will not lie where a tenant contracts to deliver, as rent, one third of the com he shall raise on the premises. Clarke v. Fraley, 3 Blackf. (Ind.) R. 264. 1 Eeynard v. Porter, 7 Bingh. 451. " Smith V. Tyler, 2 Hill, (N. Y.) R. 648. 3 Edwards v. demons, 24 Wend. E. 480. * Lawrence v. Prench, 5 Wend. R. 443. s Schuyler v. Leggett, 2 Cow. R. 660 ; Jacks v. Smith, 1 Bay, E. 315 ; 5 B. & A. 322. " Hegan v. Johnson, 2 Taunt. E. 148 ; Knight v. Bennett, 3 Bing. 361 ; 12 East, 134. 380 LAW OP LANDLOKD AND TENANT. [CH. XIII, He consequently does not possess this right in cases where the tenant is simply occupying the premises, without any express agreement as to the amount of rent to be paid ; or if he be let into possession under an agreement for a lease to be subsequently executed. But the tenancy that will authorize a distress does not necessarily require a formal lease, for this may be inferred from circumstances ; a parol lease will be suiBcient,^ and very slight circumstances will constitute a tenancy for this purpose ; as the admission by a party holding under an agreement of a charge of half a year's rent, in an account between him and his landlord, or the payment of a previous quarter's rent.^ § 564. So a holding over, after the expiration of a lease for a year, is a continuation of the former tenancy, and subjects the tenant to a distress -whether the first demise be by deed or parol.^ And the right subsists if the lease, under which the tenant holds, is void under the statute ; for though it may be void, as a lease for the term, it yet enures as a tenancy from year to year, and must regulate the terms on which the tenancy subsists in all other respects except its duration.* Where, however, the lessor refused to give the lessee possession of the premises on the day fixed in the lease, yet the lessee subsequently occupied the pre- mises, not under the lease but under a new and different agree- ment by parol, the lessor was held not to be entitled to distrain on the first contract.^ A right of reentry, in default of payment of rent, does not divest the right of distress ; ^ and on a demise of a grist-mill, the lessee to render one third of the toll, it was held the lessor might distrain;^ nor is it essential that it be reserved as rent, for if it appear to be for the use and occupa- tion of lands or houses, it is sufficient, though not denominated rent.^ In Pennsylvania, it seems to have been doubted whether 1 Cornell v. Lamb, 2 Cow. 652; Jacks v. Smith, 1 Bay, K. 315 ; Knight v. Ben- net, 3 Bing. 361. 2 Cox V. Bent, 5 Bingh. 182; 2 M. & P. 281. 8 Webber v. Shearman, 3 Hill, (N. Y.) R. 547 ; S. C. 6 Ibid. 20 ; 1 E. & M. 355 ; 1 M. & E. 137. * Schuyler i>. Leggett, 2 Cow. E. 660. = Spencer v. Burton, 5 Blackf. (Ind.) E. 57. 8 Smith V. Meanor, 16 Serg. & E. 375. ' Prye v. Jones, 2 Eawle, E. 11. ^ Price V. Limehouse, 4 McCord, E. 546. CH. XIII.] OP A DISTRESS FOE RENT. 381 a right of distress existed where the rent was payable in grain or other produce ; hut it was held, that a distress in such a case for money was clearly illegal.^ And in Kentucky it has been decided that a landlord may distrain for rent payable in specific articles, though he cannot sell the goods distrained.^ § 565. At common law, the right of distress is not extin- guished by an unsatisfied judgment for rent ; ^ for, as a general rule, the acceptance of an obligation of an inferior, or even of an equal degree, does not extinguish a prior obligation. Therefore, the mere fact of taking a promissory note for rent will not preju- dice a landlord's right to distrain, unless there is an agreement that it shall operate as a suspension of the right ; for a note is but an acknowledgment of the debt, and does not alter its nature until paid,* and will not even suspend the right of distress until it becomes due.® But if a note is taken in absolute payment of rent, the landlord's only remedy is upon the note.^ The accept- ance of a bond for rent, or an order drawn upon a person not in funds, have been held not to extinguish this right, although a receipt in full, for amount of rent due, was taken ; because rent, issuifig out of the realty, is of a higher nature than any simple contract.^ Nor is the right to distrain at the end of the year affected by an agreement in the lease, that the landlord may reenter if the rent is unpaid at a stipulated period after the expi- ration of the year ; ^ or that he shall be allowed to charge interest on the rent in arrear.^ But a landlord cannot distrain if he has treated the tenant as a trespasser, although the tenant remains in 1 "Warren v. Pomey, 13 Serg. & Eawle, 52. 2 Owen V. Connor, 1 Bibb, E. 606. ^ Snyder u. Knukleman, 3 Penn. E. 490 ; Chipman v. Martin, 13 Jolans. E. 240; Bantleon v. Smith, 2 Binney, E. 146 ; 5 Hill, (N. Y.) E. 651. ' Peters v. Newkirk, 6 Cow. E. 103 ; Snyder v. Knukleman, 3 Penn. E. 487 ; Harris v. Shipway, Bui. N. P. 182. 5 Davis V. Tyde, 4 Nev. & M. 462 ; Bailey v. Wright, 3 McCord, 484. " Warren v. Tomey, 13 Serg. & E. 52. ' Ibid. ; Cornell v. Lamb, 20 Johns. E. 407 ; Price v. Limehouse, 4 McCord, E. 544; Printems v. Helfried, 1 Nott & McCord, E. 187; Bailey v. Wright, 3 Mo- Cord, E. 484. 8 Smith V. Meaner, 16 S. & Eawle, 375. s Sherry v. Preston, 2 Chit. E. 245. 382 . LAW OP LANDLORD AND TENANT. [OH. XIII. possession to the day of the distress ; ^ nor, as it would seem, after he has given the tenant notice to quit, without some evidence of a renewal of the tenancy .^ A surrender of a part of the premises however will not exempt the tenant from a liability to distress, as to the residue.^ But where, upon the surrender of a lease, it was agreed that the tenant should' remain liable for a year's rent, and that the lessor might take all lawful means for its recovery, according to the lease ; it was held that the lessor could not dis- train for such rent, but that his remedy was on the special agree- ment alone, since by the surrender the relation of landlord and tenant ceased.* A landlord who agrees not to distrain the goods of an under-tenant, so long as he pays his rent to the original les- see, is not estopped from distraining if he has no notice of a ten- der of the rent, made by the under-tenant to his lessor.^ § 566. A previous demand of rent is, in general, unnecessary to confer a right of distress ; but if a lease contains a reservation of rent, payable quarterly or half yearly, if required, and the landlord receives rent for some time quarterly, he cannot after- wards distrain without notice.® A legal tender of the amount due destroys the right of distress, though the tender is not made until after the rent-day, or even after the proceedings in distress have been commenced, provided the expenses of such proceeding are also tendered.'' The tenant may, in fact, claim a return of the goods at any time before they are actually sold, upon making such tender, and if the landlord refuse to deliver them it is a wrongful detainer.® But the tender must be made to the land- lord and not to the bailiff, unless the latter is particularly author- 1 Bridges v. Smyth, 2 Moore & P. 740 ; Jackson o. Sheldon, 5 Cow. K. 448 ; 8 "Watts K. 55 ; 2 N. Hamp. E. 160. ' Jenner v. Clegg, 1 Mood. & Eob. 213. 3 Peters v. Newkirk, 6 Cow. E. 103. " Bain v. Clark, 10 Johns. E. 424. 5 Welsh V. Eose, 6 Bingh. 638 ; 4 Moore & Pay. 484. <= Offutt V. Trail, 4 Har. & J. 20 ; Molaus v. Ardon, 10 Bingh. 299 ; 3 M. & Scott, 793. ' Hunter v. Leconte, 6 Cow. E. 728; Williams v. Howard, 3 Munf. 277 ; 4 B. & Ad. 413 ; 1 N. & M. 374. " Six Carpenters' Case, 8 Eep. 146, b ; Hinton v. Blain, 2 Bailey, E. 168; Vir- tue V. Beasly, 2 Mood. & M. 21. CH. XIII.] OF A DISTRESS FOR RENT. 383 ized to accept or refuse it.^ When made to the distrainor's wife, however, who had been in the habit of acting as his agent in such matters, it was held sufficient.^ But it comes too late after cattle are actually impounded, for they are then in custody of the law.^ If the landlord proceeds with the distress after such tender, with- out a subsequent demand and refusal of the rent, the tenant's remedy is by action of trespass or replevin, or he may rescue the distress.* § 567. A distress for rent can only be made in the name of the person to whom the rent is due, and not in the name of a bailiff.^ Nor will an authority in writing to a tenant, to pay the rent to a third person, authorize a distress by such person.^ At common law, after a lessor parts with his reversion, he can nei- ther distrain upon the assignee or the original lessee.'^ Yet a tenant from year to year, who underlet to another from year to year, is considered as not having parted with his whole interest, but retains such a reversion as enables him to distrain.^ So if a tenant for life makes a lease for any number of years, no matter how impossible it may be that his life should last so long, he is still deemed to have a reversion in the premises.® § 568. When a lessor assigns his reversion, the assignee may distrain ; for the privity of contract which subsisted between the lessor and lessee, is in such case transferred from the lessor to his assignee, by the statute of 82 Hen. VIII. c. 34, and those American statutes which have adopted the English statute ; and the assignee thereupon becomes entitled to all the remedies for rent that the lessor originally had, even without an attornment. Thus the Revised Statutes of New York declare, that " the grantees of any demised lands, tenements, rents, or other heredi- 1 Pilkington's Case, 5 Eep. 76 ; 5 Taunt. 307. 2 Brown v. Powell, 4 Bingh. 230 ; 12 Moore, 454. s Ladd V. Thomas, 12 Ad. & El. 117. * Co. Lit. 160, b ; 8 Co. 147, a. B Swearingen v. Magruder, 4 Har. & McHen. 347. 8 Ward V. Shew, 9 Bingh. 608 ; 2 M. & Scott, 756. ' Preece v. Corrie, 5 Bingh. 24 ; v. Cooper, 2 "Wils. 375 ; 2 Moore, 656. 8 Curtis V. Wheeler, Mood. & M. 493. 9 Smith V. Day, 2 M. & W. 684 ; 4 Ad. & EI. 299. 384 LAW OP LANDLORD AND TENANT. [CH. XIII. taments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the les- sor, grantee, or assignee, shall have the same remedies by entry, action, distress, or otherwise, for the non-performance of any agree- ment contained in the lease so assigned, &c., as their grantor or lessor had, or might have had, if such reversion had remained in .such lessor or grantor." ^ But in order to confer upon such assignee a right to distrain, the lease or land should be included in the assignment ; for a mere transfer of the rent remaining unpaid does not carry with it the remedy by distress.^ <§> 569. Any one of several joint tenants being seized i^er mi et per tout, may distrain alone for the whole rent, although he must afterwards avow jointly with his companions, or make cognizance as their bailiff, and account to them for their respective shares. He may, therefore, appoint a bailiff to distrain for the whole rent, without the assent of his fellows.^ But coparceners before parti- tion are considered but as one heir, and must, therefore, all join;* after partition, however, they may make several distresses.^ Tenants in common, not holding by one title and possessing seve- ral estates, although they may join in an action for rent,^ yet must distrain severally and avow separately.^ But upon a lease by tenants in common, the survivor may distrain for the whole rent, although the reversion be to the lessors according to their respective interests.^ § 570. A husband and wife may join, or the husband may dis- train alone, for rents accruing from his wife's lands during the coverture.^ As guardians may grant leases, so they may distrain 1 1 E. S. 747, 4 28. = Slocum V. Clark, 2 Hill, (N. Y.) E,475. ^ PuUen V. Palmer, 3 Salk. 207 ; Robinson v. Hoffman, 4 Bingh. K. 562 ; 2 B. &B. 465. * Steadman v. Page, 1 Salk. E. 390. s Co. Lit. 163, b. s Midgley v. Lovelace, Carth. 289. 7 Whitley iJ. Eoberts, 1 McClel. & Y. 107 : Harrison v. Barnsby, 5 Term K. 246 ; Cro. Jac. 611. 8 Wallace v. McLaren, 1 Man. & Ry. 516. " Bowles V. Poor, Cro. Jac. 282 ; 2 Bulst. 233. CH. XIII.] OF A DISTRESS FOK EENT. 385 in their own names.^ The executor of a lessor may distrain for arrears of rent due at the time of the testator's death ; ^ but not for rent which has accrued subsequently to the death of the testa- tor ; for such rent, following the reversion, goes to the heir or devisee.^ A receiver in chancery may distrain without any spe- cial order of the court.* But if there is a doubt in whom the legal right exists, he should get an order, as he must distrain in the name of the person having the legal right.^ If, however, he has leased the premises in his own name, the tenant cannot deny his right to distrain, although he appears by the lease to be only a receiver, and the rent is reserved to him in that character.^ § 571. At common law a mortgagee, after giving notice of the mortgage to the tenant in possession, under a lease made prior to the mortgage, is entitled to such rent as shall be in arrear at the time of the notice, and to the rent accruing afterwards, and may distrain for it after such notice.'f But in New York we have seen the mortgagee cannot have possession of the mortgaged premises, and is consequently not entitled to the rents of the estate ; he cannot, therefore, under any circumstances be enti- tled to distrain, unless in the case of a tenant who attorns to the mortgagee after the forfeiture, which is allowed in New York, and in New Jersey.^ Neither is the common-law doctrine on this subject recognized in Pennsylvania.^ But as to a lease made by a mortgagor after the mortgage, the mortgagee cannot distrain until after he has received rent from the tenant ; i" or given the tenant notice to pay rent to him, and received his consent ; ^^ for this is equivalent to the creation of a tenancy from year to year, between the mortgagee and tenant, on the terms of the original 1 Bennet v. Kobins, 5 C. & P. 379 ; Cro. Jac. 55 - 98. 2 1 Saund. R. 287, n. 11 ; 1 E. S. 747, § 21. 3 Wright V. WilUams, 5 Cow. R. 501. " Pitt V. Snowden, 3 Atk. E. 750. " Hughes V. Hughes, 3 B. C. & C. 87. 6 Dancer v. Hastings, 12 Moore, 34; 4 Bing. 2. ' Moss V. Tallimore, Doug. R. 278 ; McKercher v. Hawley, 16 Johns. E. 289 ; Saunders v. Van Sickle, 3 Halst. E. 313. 8 1 R. S. 744; 3 Halst. E. 192. 9 Myers v. White, 1 Raw. 325 - 355. w Rogers v. Humphreys, 4 Ad. & EI. 299. u Doe V. Boulton, 6 Ad. & El. 675 ; McGill v. Hinsdale, 6 Conn. E. 469. 33 386 LAW OF LANDLOED AND TENANT. [CH. XIII. lease. And although the mortgagee cannot compel the payment of rent from the tenant under these circumstances, yet, in such case, the tenant -will be justified in attorning and paying rent to the mortgagee.^ § 572. At common law the lessor could only distrain during the continuance of the term ; for, according to feudal principles, there must be a privity of estate between the tenant and the per- son distraining. The remedy was consequently gone upon the determination of the term, as the privity of estate was thereby destroyed, and for the last instalment of rent, accruing on the last day of the term, there was no right of distress, or any remedy but by action.^ But the statute of 8 Anne, c. 14, which has been generally adopted in the United States, provided that the distress might be made at any time within six months after the determination of the lease, if the landlord's title or interest still continued, and the tenant remained in possession.^ As by this statute the landlord's interest must continue at the time of making the distress, if a tenant underlets, he cannot distrain upon the under-tenant after his own term has expired.* The tenant must also appear to be in possession, to authorize such pro- ceeding ; and, therefore, where the leased premises are certain specific apartments in a dwelling-house, and the tenant removes to other apartments in the same house, taking with him his goods, the landlord cannot, for the purpose of making a distress for the rent of the first apartments, follow the goods after six months sub- sequent to the termination of the lease of those apartments.^ Nor does the statute intend to permit a landlord to distrain upon the goods of a succeeding tenant found on the premises, who has taken possession under a new and different demise, occupying under a different right, although derived from the landlord him- self. Therefore where, on the expiration of a parol lease to two 1 Jones V. Clark, 20 Johns. E. 60; Pope v. Biggs, 9 B. & C. 421 ; Smith v. Shepherd, 15 Pick. 149. 2 Buzzard v. Cappel, 8 B. & C. 141. s Terboss v. "Williams, 5 Cow. E. 407 ; S. C. 2 "Wend. 141 ; Christman v. Floyd, 9 Wend. E. 340. * Burne v. Eichardson, 4 Taunt. 720. 5 Buckup V. Valentine, 19 Wend. E. 554 ; 7 Ad. & EI. 110. CH. SIII.] OE A DISTRESS FOB, RENT. 387 persons for a year, the landlord executed a new lease for years to one of them, who continued to occupy the premises alone ; it was held that his goods could not be distrained upon for the rent of the preceding tenancy, though they were on the premises when the rent fell due, and had remained there ever since.^ The goods of a third person, however, remaining on the premises during the time a tenant holds over, may be distrained for the rent of the original term, though more than six months have elapsed since that term expired.^ § 573. With respect to the time of mating a distress, it is to be observed that a distress can only be taken for rent in arrear ; and as rent does not become due until the last moment of the day when it is made payable, a distress cannot be taken until the next day after the rent becomes due.^ But a warrant given on that day, to make distress generally, is good ; * and if by the custom of the country, or by express stipulation between the parties, the rent be payable on the day on which the tenant enters, it may be distrained for on that day.^ It cannot be made in the night, but must be taken in the daytime, after sunrise and before sunset.® JKTor can it legally be made after a tender of payment ; and a tender after distress, but before impounding the goods, will render the detainer illegal ; "^ though this would not be the effect of a tender after the distress is actually impounded.* Where a lease stipulates that the rent shall be paid in advance, the landlord may distrain for it immediately upon the tenant taking possession of the premises ; ^ or if, by the custom of the country, a distress may be taken for half a year's rent in advance, the custom is 1 Bell V. Potter, 6 Hill, (N. T.) R. 497. 2 Webber v. Shearman, 3 Hill, (N. Y.) R. 547 ; S. C. 6 Hill, 20. 2 Gano V. Hart, Hardin, (Ky.) B. 297 ; Duppa v. Mayo, 1 Saund. R. 287 ; 1 Inst. 47, b, n. 6. * Glaus V. Hart, Hardin, 297. 6 Russell V. Doty, 4 Cow. 576 ; Williams v. Howard, 3 Munf. 277 ; 2 Whart. R. 95 ; 2 Term R. 600. « Co. Lit. 142, a ; Attenbergh v. People, 6 C. & P. 212. ' 6 Cow. 728. 8 5 Term R. 432. 8 Diller v. Roberts, 13 Serg. &Rawle, 60; Rnssell !>. Doty, 4 Cow. R. 516; Peters v. Newkirk, 6 Ibid. 103 ; Harrison «. Barry, 7 Price, 690 ; Williams v. Howard, 3 Munf. 277. 388 LAW OF LANDLORD AND TENANT. [CH. XIH. valid and forms part of the contract.^ A demand of rent in arrear, before making a distress, is unnecessary, unless the agree- ment requires it.^ "§. 574. At common law, a distress can only be made upon some part of the demised premises out of ivhich the rent issues.^ Upon any part of these it may be taken for the whole rent, even though the different parts be in different counties, because the whole rent issues out of every part of the land.* And if a rent- charge issue out of land in the possession of many tenants, a dis- tress may be taken upon the premises of one for the whole rent, for it issues out of each part. Bat where there are separate and distinct demises, there must be separate distresses on the several premises subject to each distinct rent, although the several pre- mises are demised to the same tenant.^ As rent cannot issue out of a mere easement, or incorporeal hereditament, upon the demise of a room, with a right of common passage along an entry leading from such room into the public street, it was held that the land- lord could not seize goods of the tenant kept in such common pas- sage.^ For the same reason, a barge attached to a wharf by a rope, was held in England not distrainable for rent of the wharf, though the land on which the wharf stood was demised, and the use of the land in the river Thames opposite to it, between high and low water mark, was also demised as appurtenant to the wharf, but not the land itself over which the barge floated when it was distrained. 5^ The owner of a wharf, however, may distrain for wharfage on any goods or chattels on board a ship or vessel which has been moored at his wharf, although the vessel has been removed from the wharf; and it is no objection to the distress that it is made at a place different from where the wharfage accrued, 1 Buckley v. Taylor, 2 Term R. 60. 2 Offatt V. Trait, 4 Har. & Johns. 20 ; Eoger «. Ake, 3 Penn. E. 461. " Burr V. Van Buskirk, 3 Cow. R. 269 ; Pemberton v. Van Benselaer, 1 Wend. E. 309 ; Brown v. Duncan, 1 Harper, E. 338. * 1 Eol. Abr. 671, 1. 10. 15 Rogers v. Birkmire, Str. 1040. « Winslow V. Henry, 5 Hill, (S. Y.) E. 481. ' Buzzard v. Cappel, 8 Bam. & Cress. 141 ; 6 Bing. R. 150 ; S. C. 3 M. & R. 480 ; 2 M. & E. 197, overruling S. 0. 4 Bing. 137 ; 2 C. & P. 541. CH. Xin.] OP A DISTRESS FOR RENT. 389 provided such place be witliia the jurisdiction authorizing the pro- ceeding by distress.^ § 575. If, when the landlord comes to distrain cattle which he sees within his fee, the tenant or any other person, to prevent the distress, should drive the cattle away into some other place, the landlord may follow and take them ; for in judgment of law, the distress will be considered as taken within his fee. But he can- not distrain them if they go off the premises of their own accord ; nor can he pursue them if they have gone away before he disco- covered them.2 So a constable of the town where the demised premises are situated, to whom a warrant is delivered to be exe- cuted, may pursue into another town, and take goods which have been fraudulently removed to avoid the distress.^ At common law, if a stranger sent his horse or cattle upon the demised premises to pasture,* or the cattle of a stranger broke through the-fences and entered the tenant's land, they became immediately distrainable.^ It is so, also, if the owner of cattle is bound to repair the fences, and, by his negligence in not repairing, his beasts escape into a neighbor's land.^ But when there are no sufficient fences to divide the tenant's from the stranger's lands, and it is the tenant's duty to keep the fences in order, the landlord cannot distrain such cattle, until after the owner has had notice to remove them ; and then if he neglects they become Hable.7 § 576. The American statutes, following that of 11 Geo. II. c. l9, in general furnish another exception to the rule, that the distress can only be taken on the demised premises ; by allowing the landlord to pursue and seize them where they have been fraudulently removed, for the purpose of avoiding the dis- tress. The English statute only applies where the removal has 1 NichoU V. Gardner, 13 Wend. 288. 2 1 Inst. 161, a. 3 Christmau v. Floyd, 9 Wend. R. 340. * Francis v. Wyatt, 3 Burr. 1498. 5 Co. Lit. 74, b ; 2 Saund. R. 124. « GiU V. Gavin, 2 Roll. E. 124. ' Lutw. 1580; Dyer, 317, b. 33* 390 LAW OF LANDLOED AND TENANT. [CH. XIII. occurred secretly and fraudulently ; ^ and the landlord is bound to show, also, that no sufficient distress remained on the premises after such removal.'^ In Pennsylvania, the goods must have been removed after the rent became due, to authorize the landlord to follow them ; ^ and such removal must be fraudulent.* In Louis- iana, if the tenant removes his goods from the premises, and abandons them, he becomes liable at once for the rent of the whole term, due and to become due ; but the execution' only issues for the rent actually payable, as it becomes due.^ In Ken- tucky, where the tenant is about to remove his effects, an attach- ment for rent lies before it is due if the rent be payable in money.® There are similar statutes in Virginia and Kentucky, authorizing a distress after the tenant has removed his effects from the pre- mises.'^ § 577. This statute applies only to the goods of the original lessee and his assignee, which have been removed from the demised premises ; and not to those of a stranger found on the premises,^ or to goods taken by a creditor therefrom with the assent of the tenant, in payment of a lond fide debt, though the creditor knows the rent is due, and apprehends the landlord may distrain.^ Nor does it apply to the goods of an under-tenant, which have been removed before the rent became due ; ^° a plea that justifies the following of goods off the premises must, there- fore, aver that they were the tenant's goods.^^ A mortgagee is deemed a tenant sub modo, and protected within the saving clause of the statute in favor of subsequent purchasers in good faith ; and, therefore, personal property taken by a hond fide mortgagee from the premises, by virtue of the mortgage, is not 1 Oppennan v. Smith, 4 D. & E. 33. 2 Parry v. Duncan, 1 Mood. & M. 533. s Grace v. SMvely, 12 S. & E. 217. * Purfel V. Sands, 1 Ashmead, E. 120. 5 Eeynolds v. Swain, 13 Louis. E. 193 ; 2 Martin, E. 451. ''• Poor V. Peebles, 1 B. Monroe, 1 ; 3 Kent, 482, n. ' Lougee v. Cotton, 2 B. Monroe, E. 115. 8 Prisbey v. Thayer, 25 Wend. E. 306 ; Martin u. Black, 9 Paige, E. 641. 9 Slocum V. Clark, 2 Hill, (N. Y.) E. 475 ; Coles v. Marquand, Ibid. 447 ; Adams V. La Combe, 1 Ball. E. 440 ; Dayis v. Payne, 4 Eandolph, E. 332. w Acker v. Witherill, 4 Hill, (N. T.) E. 112. " Thornton v. Adams, 5 M. & S. 38 ; 6 C. & P. 225. CH. Xm.] OF A DISTRESS FOR RENT, 891 subject to pursuit after removal.^ But tMs right is a strict legal right, and not favored in equity. Rent is a lien upon the tenant's goods so long as they remain upon the demised premises, and, at common law, the right was gone the moment they were removed, for the landlord had parted with his lien ; possession, or what is equivalent to possession, being necessary to the existence of a lien.2 But this statute, which gives him a right to follow them after their removal, does not continue such lien after the removal ; it simply provides an additional remedy, without creating a new lien upon the goods. And as eqmty never interferes in behalf of a cre- ditor who has not acquired a lien upon his debtor's property, or to restrain the latter from making any disposition of his property he may think proper, it will not compel a defendant to disclose where the goods which have been removed have been deposited, in order that they may be seized by a distress warrant, or deli- vered up to be sold under a decree, to satisfy the rent.® § 578. When a landlord makes a distress, he may seize upon any article in the name of all the goods in the house ; * and a declaration by him, that nothing should be removed until his rent was paid, has been held sufficient to authorize him to follow an article which had been removed.^ So where a broker went into the tenant's house, and pressed for payment of rent alleged to be due, and a sum for the expenses of the levy, but touched nothing and made no inventory, and the tenant then paid the rent and expenses under protest ; it was held, in an action against the landlord for an excessive distress, that he could not say there^ had been no distress.^ He may enter into any house or building, either through the doors or windows ; '^ but if these be fastened he can- not lawfully break them open, for inclosures or fences cannot be 1 Frisbey v. Thayer, supra. But see Reynolds v. Shuler, 5 Cow. E. 323. 2 Trappan v. Morie, 18 Johns. E. 2; 3 Burr. 1889 ; Sweet v. Pym, 1 East, 4 ; 7 Ibid. 5. ^ Eeed v. Darrow, 2 Ed. Ch. E. 412 ; Wiggins v. Armstrong, 2 Johns. Ch. E. 444. * Dodd V. Monger, 6 Mod. 215 ; S. C. Holt, 416. 6 Wood V. Nunn, 5 Bingh. 10 ; 2 M. & P. 27. 6 Hutchins v. Scott, 2 M. & "W. 809 ; S. C Mur. & Hurl. 194. ? 1 Kol. Abr. 671, 1. 7, 17. 392 LAW OF LANDLORE AND TENANT. [CH. XIH. broken to take a distress.^ And where a padlock had been put upon a barn door, the landlord was held to be a trespasser by breaking it, in order to seize the corn in the barn.^ But if the outer door be open the inner may be broken ; ^ and this, though such inner room is in the exclusive possession of the plaintiff, under an occupation separate from the rest of the house ; or if, after having entered lawfully, the officer is forcibly turned out of possession, he may break the door and reenter.* To make an officer a trespasS;er, it is enough that the outer door be shut ; lifting a latch is as much a breaking in law, as the forcing a door bolted with iron ; whatever would be a breaking of an outer door in burglary is a breaking by a sheriff; even the sliding down of a window, fastened by pulleys, would be a breaking.^ And if an officer breaks open an inclosure, and takes goods when he is not justified in doing so, he not only renders himself liable to an action of trespass, but the court or a judge will restore the goods to the person from whom they were so taken.^ § 579. At common law, a distress might be levied by the land- lord or any private person authorized by him for that purpose, although he could not sell the property so distrained ; but the English, as well as the American statutes regulating distresses, now require as a check to abuse in the exercise of this right, that the proceeding shall be conducted by a legal officer.'' In Georgia, a distress warrant can only be granted by a justice of the peace.^ Still further to protect the rights of the tenant, the statutes of the different States require certain preliminary proceedings, to be taken by a landlord previous to making a distress for rent. In regard to which, great particularity is necessary to be observed, as to the affidavit of rent due, for being the foundation of the ' Co. Lit. 161, a; Semayn's Case, 5 Co. K. 91. 2 9 Vin. Abr. 128, pi. 6. " Williams v. Spencer, 4 Johns. E. 352 ; Comb. 17; Brown v. Dunn, Bull. N. P. 81 ; State v. Thackaw, 1 Bay, 358; 3 B. & P. 223; State v. Armfield, 2 Hawks, 246. * Eagleton v. Gutteridge, 11 M. & W. 465. 5 Curtis V. Hubbard, 1 HiU, (N. Y.) E. 337. 6 1 Chit. Arch. Pr. 7th edit. 410 ; 2 Bac. Abr. Execution. (N.) ' Ferguson v. Moore, 2 WaBh. E. 58; WeUs v. Homer, 3 Penn. E. 33 ; 1 Munf. R. 596. 8 Prince's Dig. 1837, p. 687. CH. XIII.] OP A DISTKBSS TOK EBNT. 393 ■whole proceeding, any material error here will vitiate all future transactions, and render the landlord a trespasser. § 580. In addition to the affidavit, the landlord must also give to the officer he employs to make the distress, an authority, in writing, called in the statute the warrant of distress. As to which no particular form is necessary : if it substantially indicate the object intended, so as to enable the officer to execute it, it is suffi- cient ; nor need it be under seal. Neither is it necessary that an agent who directs the distress should have written authority from the landlord, for the statute only requires that the officer making the distress should act under a warrant in writing, and, therefore, an agent of the landlord may sign the warrant in his own name, as agent for his principal, and make the affidavit also.^ At com- mon law, if an agent or bailiff proceeds to distrain goods without an express authority from his principal, and the principal after- wards assent to it, it is a good distress, and shall have relation back to the time when the distress was taken.^ But a distress warrant signed by "A, agent for B," is a good execution of the authority conferred on the agent.^ § 581. All the arrears of rent, arising during the tenancy, may be included in one proceeding, though the rent of several years should happen to be in arrear, since the statute of limitations does not apply to these cases.* And, therefore, if a tenant enters upon the premises under a lease for two years, and continues in posses- sion nine years, paying no rent, the landlord may, by one distress, remunerate himself for the rent accrued during the whole nine years ; and so for any other period. And if the property be taken from his possession by a writ of replevin, he may in one avowry acknowledge the taking for the whole nine years, as upon one entire lease .^ A distress, however, can only be taken for rent, and not for damages for the delay of payment, and, there- 1 Bigelow V. Jadson, 19 Wend. E. 229. No written authority is required in Pennsylvania. Franciscus v. Keigart, 4 Watts, 98 ; 3 W. & S. 531. 2 Gilbert on Distresses, 32 ; 3 Car. & P. 172 ; 5 Bing. 10. " Bigelow V. Judson, 19 Wend. E. 229 ; 11 Mass. E. 27 ; 17 Wend. E. 40. ■* Brathwaite v. Cooksey, 1 H. Bl. E. 465 ; Wright v. Williams, 5 Cow. E. 501 ; Blake v. Delisseline, 4 McCord, 496. 5 Sherwood v. Philips, 13 Wend. 479. 394 LAW OF LANDLORD AND TENANT. [CH. XIII. fore, interest cannot be included in the amount distrained for ; and if interest is collected by a distress, tlie party distrained upon may recover back the excess by an action on the case.^ § 582. When the officer has been thus legally authorized to distrain, he enters upon the premises, and makes a seizure of such things as are liable for rent ; and proceeds to take an inventory of so many goods as he shall judge to be sufficient to cover the rent distrained for, together with the charges of the distress. And it is generally proper for him to have a person with him when he makes the distress, and also when he serves the inventory and notice, to examine the same, and attest, if there be occasion, to the regularity of the proceedings. The safest way is, to remove the goods immediately to some convenient place, and, in the notice required by the statute, to inform the tenant where they have been carried ; but it is usual to let them remain on the pre- mises, leaving a person in charge, or taking security for their forthcoming. § 583. As to the goods that may be taken upon a distress for rent, they are in general all the movable goods and chattels which may be found upon the premises, whether they be the goods of the tenant, under-tenant, or other person.^ The necessity of this rule is obvious, when we consider by what varieties of fraud and collu- sion the rights of a landlord are liable to be defeated, if he is to be restricted to such goods only, as he can prove to be the pro- perty of the tenant. Nov is there in reality any hardship in it, as a stranger, who may happen to have his goods upon the pre- mises, can, at any time before the landlord actually levies his distress, remove them, and the landlord has no right to follow them. In Virginia, Kentucky, Illinois and New Jersey, the pro- 1 Lansing v. Eattoone, 6 Johns. E. 43 ; 2 Binney's E. 153; Dennison v. Lee, 6 Gill & Johns. 383 ; Veghte v. Brownell, 8 Paige, E. 212 ; Sherry v. Preston, 2 Chit. E. 245. 2 Holt V. Johnson, 14 Johns. 425 ; Spencer v. McGowan, 13 "Wend. E. 256 ; Thornton v. Adams, 5 M. & S. 38 ; Kesler v. McConachy, 1 Eawle, E. 435 ; O'Donuel v. Seybert, 13 S. & E. 57 ; Weidell v. Bosberry, Ibid. 180; Howard v. Eamsay, 7 Har. & Johns. 120 ; Davis v. Payne, 4 Eand. E. 334 ; Eeeves v. Mc- Kenzie, 1 Bailey, 497. CH. XIII,] OF A DISTEESS FOE KENT. 395 perty of strangers found upon the premises, is exempt from dis- tress, by the statutes of those "states.^ And in Pennsylvania it has been held, that the effects of a lodger and boarder are exempt from distress for rent due from the keeper of the boarding-house ; ^ and that -wherever a landlord knows, or consents to the introduc- tion of a stranger's goods upon the premises, as a consequence of the business acts of the tenant, such goods shall not be distrained.^ So in New York it was held, that if a stranger's goods are on the demised premises without his fault, and he endeavors to regain them with due diligence, and without any voluntary delay, they are not distrainable.* § 584. The tendency of our decisions is, upon the whole, against the right of distraining goods not the property of the tenant ;^ but, it has been observed, that to abrogate it altogether, might lead to results not sufficiently adverted to. Independent of the fraud which might be perpetrated, and the delay that would occur, were the tenant permitted to set up as a defence to a distress for rent, property in a third person ; the abolition of the right to distrain all goods on the premises not exempt at common law, would pre vent the landlord from distraining the goods of an under-tenant, who not being liable to him for rent in any form of action, by rea- son of a want of privity of estate or of contract, is a mere stranger to the landlord. And if the right of distraining the property of a stranger, is refined away by judicial decisions, any lessee, by re- demising the whole property which has passed to him under a lease, and reserving to himself but a single day of the original term as his reversion, may altogether defeat the right of distress. In fact, the principle laid down in Brown v. 8ims, that where the landlord knows or consents to the introduction of a stranger's goods on the premises as a consequence of the business acts of the tenant, such goods shall not be distrained, may strictly em- brace the goods of an under-tenant, placed on the premises by the 1 4 Kand. E. 334 ; Snyder v. Hill, 2 Dana, (Ky.) E. 204 - 212 ; Elmer's (N. J.) Dig. 135; Rev. Laws of Illinois, 1833. 2 Eiddle v. Welden, 5 Wharton, E. 1. 8 Brown v. Sims, 17 Serg. & Eawle, 138. * Gilbert V. Moody, 17 Wend. E. 354; 6 Connah v. Hall, 23 "Wend. E.475. 396 LAW 0¥ LANDLORD AND TENANT. [CE. XHI. contract of the first lessee, with the consent, express or implied, of the landlord. § 585. The statute laws of most of the States contain a variety of exemptions from distress, generally embracing the necessary tools of a mechanic, or for limited agricultural purposes.^ Thus the statute of Alabama, of 1832, exempts two cows and calves, five hundred pounds of meat, one hundred bushels of corn, all books, a pair of working oxen, all tools or implements of trade, twenty head of hogs, &c. The laws of Michigan exempt all pri- vate libraries not exceeding a hundred dollars in value. The statute of Georgia, of 1841, in favor of heads of families, exempts twenty acres of land, and an additional five acres for each child under fifteen years of age, provided the land derives its chief value from its adaptation to agricultural purposes. If the party owns more than twenty acres, he is to procure twenty acres to be laid off, so as to include the dwelling-house and improvements on the tract, not exceeding twelve hundred dollars in value ; and this cannot be molested. He is also entitled to one horse, ten head of hogs, &c. The limits of our work, however, do not permit us to go into all these statutory exemptions ; and the details will appear more satisfactorily, from a particular examination of the statutes themselves. § 585. There are, however, many exceptions at common law independent of the statutes, arising either from the circumstance that a distress was formerly considered as a mere pledge to the landlord for the payment of his rent ; or from the care which the law takes, that while the interest of an individual is served, the common good of the public shall not be prejudiced. Thus things which cannot, with certainty, be identified, or which cannot be returned to the owner in as good a condition as at the time they were taken, are exempt. For it would be inconsistent with the notion of a mere pledge, that it could not be returned in specie ; and it would be unjust to take such things as might be injured and lost to the lessee by the detention. For this reason, loose money, meal, or the like, not confined in a bag or sack, and, con- 1 Acts of Maine, 1833, c. 307 ; 1 Humph. 391 ; 5 Mass. K. 313 ; 4 Conn. R. 450; 2 Whart. B. 26. CH. XIII.] OF A DISTRESS FOR RENT. 397 sequently, bearing no mark by -ffhich it may be known, cannot be distrained ; but, when inclosed in a bag, which may itself be marked 'and known, and so identified, the objection ceases. The exception also extends to things of a perishable nature, such as fruit and milk.^ § 587. Things delivered to a person exercising a public trade, to be carried, wrought, worked up, or managed, in the way of his trade or employ, have always been privileged for the sake of trade and commerce, which could not be carried on if such things, under these circumstances, could be distrained for rent due from the person in whose custody they are.^ Therefore, things sent to places of trade, as a horse sent to a farrier's shop, shall not be distrained for the rent of the shop ; nor yarn sent to a weaver's ; nor cloth to a tailor's,^ whether it be made up into garments or not ; nor sacks of corn sent to a mill to be ground, or to a market to be sold.* For the same reason, the goods of a principal in the hands of a factor or consignee for sale, cannot be distrained for rent due from the factor ;^ nor can goods consigned to a broker for sale, and placed by him for safe keeping in a warehouse over the wharf at which they were landed, be distrained for rent due in respect of the wharf or warehouse.^ A horse sent to market with corn for sale, is protected ; or to a mill with corn to be ground, and remaining at the mill-door during the grinding.^ So, where a man sent a horse laden with yarn to a neighbor's to be weighed, whose landlord just then entered with a distress warrant, it was held, that neither the horse nor the yarn were distrainable ; goods being privileged and protected under all such circumstances for the benefit of trade.* 1 Cooper V. Pollard, 1 Eol. Abr. 667, 1. 16. 2 1 Inst. 47, a ; 2 Mod. 61 ; Simpson v. Haitopp, Willes, 512. a Barker v. Paul, 4 Halst. K. 110; Wood v. Clark, 1 Cromp. & J. 484. » Co. Lit. 47, a. In Louisiana, the landlord has a privilege by way of pledge, on the tools, of a tradesman found on the premises. Parker v. Starkweather, 19 Martin, E. 337. 5 Oilman v. Elton, 3 B. & B. 75 ; Brown v. Sims, 1 7 S. & E. 138 ; Himley v- Wyatt, 1 Bay, E. 102 ; 2 C. & P. 353. 8 Thompson v. Mashiter, 1 Bing. 383. 7 2 Bac. Abr. Distress, B. 8 Bead v. Burley, Cro. Eliz. 549. 34 398 LAW OP LANDLORD AND TENANT. [CH. Xin. § 588. The exemption seems to be general in all cases where the course of business necessarily puts the tenant in temporary possession of the property of his customers.^ Upon this principle, horses and carriages standing temporarily at an inn are privileged.^ But if standing at livery, they are distrainable.^ In South Caro- lina, however, it has been held, that a horse standing at a livery stable, is not, for reasons of public policy, distrainable ; * nor for the same reason, a negro boy bound out as an apprentice to learn a trade, accidentally found upon the premises.^ So, also, goods deposited in a warehouse for storage, are not liable to distress ; for the course of such business necessarily puts a tenant in posses- sion of the property of his customers, and it would be against the dictates of conscience to allow the landlord to use him as a decoy, and pounce upon whatever should be brought within his grasp.^ Under the Massachusetts law of attachment upon mesne process, which is analogous to the common-law doctrine of distress for rent, it has been held that a stage-coach at a tavern, in preparation, and nearly ready for departure, might be attached ; and the court inclined to the opinion, that steamboats, vessels, and stage-coaches, in actual use, might also be attached.'' § 589. At common law, goods delivered to a common carrier, or other person, to be conveyed for hire, are privileged ;^ or goods on the premises of an auctioneer, deposited there for the purpose of sale ;^ or a beast sent to the premises of a butcher to be slaugh- tered.^" But, although materials delivered by a manufacturer to a weaver, to be by him manufactured at his own house, are privi- leged from the weaver's rent ; yet the frame of other machinery delivered by the manufacturer to the weaver, with the materials 1 Himley v. Wyatt et al. 1 Bay, R. 162 ; 4 McCord, 552. 2 Co. Lit. 47, 7. 3 Francis v. Wyatt, 3 Burr. 1498 ; 1 Blk. E. 483. ' Youngblood v. Lowry, 2 McCord, E. 39. 6 Paelon v. McBride, 1 Bay, R. 170. " Brown v. Sims, 17 Serg. & Eaw. 138 ; "Walker v. Johnson, 4 McCord, E. 552. ' Potter V. Hall, 3 Pick. E. 368. ° Gisburn v. Hunt, 1 Salk. 250; Cro. Eliz. 549. ' Adams v. Grane, 3 Tyrw. 326 ; 1 C. & M. 390; Himley v. Wyatt, 1 Bay, E. 102. w Brown v. Shevill, 2 Adol. & El. 138. CH. XIII.] OF A DISTRESS FOE EBNT. 399 to be used in such manufacture, are not privileged unless there are other goods on the premises to satisfy the rent.^ On the same principle, a barge sent by a customer to the premises of a salt manufacturer to be loaded with salt, was not protected j^ nor a brewer's casks sent to a public house with beer.^ § 590. If the landlord either expressly or impliedly consent, that chattels placed by a stranger on the tenant's land shall be exempt from distress, he will be a trespasser if he afterwards dis- trains them.* Goods deposited with another to await an opportu- nity to be sold, are not liable to distress or sale for rent owing by the bailee. The law, in affording this protection, looks to the convenience of trade, and not to the business of the bailee, or the particular character of the place where the goods are deposited ; as, whether it be a warehouse, wareroom, wharf, or other place of deposit. The clause in the statute exempting from distress or sale for rent, goods deposited with the keeper of any warehouse in the usual course of his business, is put merely by way of exam- ple, and not intended to limit the protection only to goods thus deposited.^ It was also laid down by Mr. Justice Park, that this principle of exemption extends to every species of trade ; not on account of the character of the individual in whose hands they were deposited, but for the benefit of trade generally, which alone is to be considered, and for which only goods are by law to be favored and protected.^ § 591. As every thing which is distrained is presumed to be the property of the occupant, things wherein a man can have no absolute and valuable property, cannot, for this reason, be dis- trained ; as deer, cats, rabbits, and all wild animals, which are ferce natwrce,? Yet, if such animals are kept in a private inclos- ure, for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock, or merchandise, that 1 "Wood V. Clark, 1 Tyrw. 314 ; 1 Cr. & J. 484; Fenton v. Logan, 9 Bing. 676. 2 Muspratt v. Gregory, 1 Mees. & W. 633. 8 Joule V. Jackson, 7 Mees. & W. 450. » Horsford v. Webster, 5 Tyrw. 409. 6 Connah v. Hale, 23 Wend. R. 462. 6 Mathias v. Mesnard, 2 Car. & P. 353. ' Co. Lit. 47, a. 400 LAW OF LANDLORD AND TENANT. [CH. Xin. they become distrainable.^ A dog may be valuable property, and is, therefore, distrainable.^ So is the negro of a stranger acci- dentally on the premises.^ § 592. Things affixed to the freehold, although belonging to the tenant, cannot be distrained so long as they remain affixed to the premises. But if they are permanently separated by the tenant or his agent, with a view of applying them to some other purpose, — in which case they would, in fact, no longer have the character of fixtures, — or with a view of removing them from the premises altogether, they become distrainable, although they may have passed into the hands of a bond fide mortgagee, who removed them in order to secure himself under his mortgage. For a mort- gage of goods is not such a sale as will protect them from dis- tress.* <§) 593. If a tenant quits possession at the end of his term and sells his goods to a succeeding tenant, they cannot be distrained for arrears of rent due by the former tenant.^ And, as a gene- ral rule, goods which have been sold bond fide and for a valua- ble consideration before the seizure, are not distrainable unless they are suffered to remain an unreasonable time upon the pre- mises after the sale.^ And where goods of a tenant are sold under an execution, a reasonable time to remove them will be allowed to the purchaser ; but there must be no unnecessary delay in the removal, otherwise they become distrainable. Therefore, where they were sold on the afternoon of Saturday and distrained upon the following Tuesday, the distress was held good, because no reason was assigned for their remaining on the premises in the mean time.^ 1 Davis V. Powell, Willes, 50. 2 Willes, 48. " Bull V. Horlback, 1 Bay, R. 301. * Vausse v. Russell, 2 McCord, E. 329; Cresson v. Stout, 17 Johns. E. 106; Reynolds v. Shuler, 5 Cow. E. 323 ; Dalton v. "Whittem, 1 Car. & Kir. 961 ; Darby u. Harris, 1 Ad. & EI. N. C. 895. 6 Clifford V. Beams, 3 "Watts, 246. " Neale v. Clautire, 7 Har. & Johns. E. 372. 7 Gilbert v. Moody, 17 Wend. E. 354. CH. XIII.] OP A DISTRESS FOE RENT. 401 <5i 594. Goods in custody of the law, as a distress taken damage feasant cannot be distrained ; ^ but in a case where the plaintiff in replevin was nonsuited, the avowant was allowed to distrain the same goods for rent since accrued, before the execution of the writ, de retorno habendo.^ And when goods were seized bj the sheriff under an attachment against an absconding debtor, the land- lord's right of distress was held not to have been taken away.^ Where property is rightfully in the hands of a receiver, it is in custody of the court, and cannot be distrained upon without per- mission of the court, by whom the receiver was appointed, and it is a contempt of court for a third person to attempt to deprive him of that possession in any manner whatever. But if the land- lord has a claim upon such property for the recovery of rent, he may apply to the court for an order that the receiver pay the rent, or that the landlord be at liberty to proceed by distress or other- wise as he may be advised. If his claim is contested, the court will give him leave to go before a master, and be examined pro interesse suo.^ § 595. The same principles are applicable to every interfer- ence with the possession of a sequestrator committee or custodee, who holds the property as an officer of the court ; as his posses- sion is in law the possession of the court itself.^ Therefore, where in a suit on a judgment creditor's bill, a receiver of the defend- ant's property was appointed in October, 1841, and the defendant afterwards assigned his property to such receiver ; and at the time of his appointment the defendant was the tenant of certain premises, upon which on the 1st day of November, 1841, a quar- ter's rent became due ; and afterwards the receiver took posses- sion of the furniture on the premises, and removed it therefrom ; and soon after such furniture was removed, and while it was on the carts in the street near the premises, the landlord attempted to distrain the same for rent in arrear, but was prevented from 1 Co. Lit. 47, b. 2 Hefford v. Alger, 1 Taunt. K. 213. 3 Acker v. Witherill, 4 Hill, (N. Y.) E. 112. ' Noe V. Gibson, 7 Paige, R. 513 ; Matter of Hopper, 5 Ibid. 489 ; 2 Story's Equity, 177; Martin v. Black, 9 Paige, R. 641. 6 Ibid.; Jacob's Ch. Eep. 572; 1 Hogan, E. 216. 34* 402 LAW OF LANDLORD AND TENANT. [CH. XIH. doing so by the prior possession of the receiver : it was held, that as the property was actually removed from the premises before the landlord attempted to exercise his right to distrain, his right of distress was gone ; and that he had no right to follow the goods: as they were not the goods of the tenant at the time of their- removal. But it was held at the same time, that if the term had been assigned to the receiver at the time of the assignment of the furniture, and the receiver had taken possession of the demised premises, or otherwise elected to take the term under the assign- ment, that he would have taken it cum onere, and, for the time being, would have been the tenant of the premises, and the re- moval of the furniture would have been a removal of the goods of the tenant, within the meaning of the statute.^ Property in a boarding-house, though belonging to a boarder, is not exempt if it be in actual possession and use of the tenant, by consent of the boarder, without the landlord's permission.^ But the supreme court of Pennsylvania held, that the goods of a boarder were not liable to distress for the rent of the house, on the ground that chattels so situated were within the reason of the law which pro- tected the property of a stranger tarrying at an inn, from being distrained for rent due on account of the premises. And the principle was said to be a growing one, and that it ought to em- brace every case that could at all be brought within it.^ § 596. The houses of ambassadors or other public ministers of a foreign prince or state, and, of their domestic servants, are by the law of nations, inaccessible to the ordinary officers of justice, — being considered out of the jurisdiction of the country, — their goods are, therefore, for reasons of public policy, privileged from distress.* Such things as are in actual use, are protected from distress, as the hatchet with which a man is working, the clothes he, is wearing,^ or the horse he is riding ;^ which exemption arises from the anxiety with which the law guards against any incite- ' Martin v. Black, 9 Paige, E. 641. 2 Matthews v. Stone, 1 Hill, (N. Y.) 565. " Riddle v. "Weldon, 5 Whart. R. 9. , " Vattel, book iv. ch. 9 ; Hopkins v. DeKobeck, 3 Term E. 80. 6 Co. Lit. 47, a. » Story V. EobinsoD, 6 Term E. 13S. CH. XIII.] 0¥ A DISTRESS POK RENT. 403 ment to a breacli of the peace. A cart loaded with grain is, therefore, said to be privileged if a man be upon it ;^ and a stock- ing frame,^ or a weaver's loom, cannot be distrained while a per- son is employed upon it.^ § 597. Nor will the common law permit beasts of the plough, sheep, and the implements of a mechanic's trade, to be distrained for rent, until other chattels sufiBcient for the demand cannot be found. But with respect to things thus conditionally privileged, it has been held, that even though there be a sufficient distress besides upon the premises, yet if that distress consist of growing crops, which are only distrainable by statute, and not immediately pro- ductive, the landlord is not bound to avail himself of it ; but may distrain the things privileged sub modo^ And if a landlord dis- train, among other things, his tenant's cattle and beasts of the plough, and it turns out after the sale, that there would, in point of fact, have been sufficient to satisfy the rent and expenses with- out taking them, such distress is not thereby proved to be illegal, if there were reasonable grounds for supposing, (judging from appraisement,) that without taking the beasts of the plough, there would not have been sufficient to have satisfied the rent and ex- penses when sold.^ Cattle belonging to a stranger, though in general liable to be taken if found upon the premises,^ are not so under particular circumstances ; as if they are put upon the land by the owner for necessary refreshment while on their way to market.'' <5> 598. Goods of the tenant taken in execution, though remain- ing on the premises, cannot be distrained, because they are in the custody of the law ; ® and, by the common law, the landlord lost his lien upon the tenant's goods after the sheriff had levied 1 "Welch V. Bell, 1 Vent. 36. 2 Simpsonu.HartoflFe, WiUes, 512. 3 Gorton V. Ealkner, 4 Term E. 26. * Piggott V. Brltles, 1 M. &. Wels.'441. 5 Jenner v. Yoiland, 6 Price, R. 3. f" Eead v. Burley, Cro. 549. 1 2 Saund. R. 290, n. (7). 8 Eex V. Cotton, Park, R. 120 ; WUIes, 136 ; Hamilton v. Reedy, 3 McCord, R. 40. 404 LAW OP LANDLORD AND TENANT. [CH. XIH. on them ; for an execution took precedence of all debts, except specific liens.i But the statute of 8 Anne, c. 14, provided a remedy for a landlord to whom rent is due under these circum- stances, by directing the sheriff to pay him not exceeding a year's rent, out of the proceeds of the property seized on the premises by the execution. No particular form of notice was required to be given to the sheriff under this statute ; the only inquiry for him to make was, whether rent was in fact due. Of this he was bound to inform himself, and was liable to the landlord for removing the goods from the demised premises without satisfying the year's rent.^ The Revised Statutes of New York, — which, however, we have seen, are now abolished, — required that a written notice, with a verification in a certain form, should be served upon the sheriff; and it was not in the power of the ofiicer holding the exe- cution to dispense with either, for being a summary power given, by the statute, it must be strictly pursued.^ § 599. The statute refers only to goods upon the premises, and does not extend to chattels real ; which may, therefore, be taken and sold to satisfy the execution, without any reference to the landlord's claim for rent.* Should there be a year's rent due to the landlord at the time of levying the execution, and he omits to give notice to the oflicer of his claim until after the accruing of another year's rent, he is entitled to only one year's rent ; although, subsequent to the accruing of the second year's rent, new executions are levied upon the property by another officer, and notice of rent due is given to him by the landlord. Yet if he has given notice of his claim on the levy of the first execution, and gives a like notice on the levy of the second, he may be enti- tled to two years' rent.^ If the goods are taken in execution after the distress is levied, the landlord may go on and complete his distress, and also claim the accruing year's rent in preference to the execution creditor.® 1 Co. Lit. 47, b ; Henchett v. Kimpson, 2 Wils. 141. 2 Clark V. Dixon, 3 B. & A. C45; Olcott v. Frazer, 3 Hill, (N. Y.) R. 562 ; Tar- rington v. Bailey, 21 Wend. 65. 3 Prisby v. Thayer, 25 Wend. 396 ; Millard v. Eobiuson, 4 Hill, 604. ■> Hamilton v. Reedy, 3 McCord, 38. 5 Van Rensselaer v. Quackenboss, 17 Wend. R. 34. « Biddle v. Biddle, 3 Harr. R. 539. CH. XIII.] OF A DISTRESS FOR RENT. 405 § 600. The statute contemplates only a tenancy existing at the time of levying the execution ; where, therefore, a sheriff seized goods under a writ of fieri facias, and a writ of habere facias possessionem, was subsequently delivered to him in an ejectment, at the suit of the landlord, on a demise made previous to the fi, fa. ; it was held, that the sheriff was not justified in allowing a year's rent to the landlord, as the tenancy must have ceased on the demise in the ejectment.^ Nor will an agreement be- tween a purchaser and vendor of real estate, where the consi- deration-money is to be paid in instalments, and the purchaser enters into possession, that the vendor may collect the moneys as they become due, by distress or otherwise, as for so much rent due, will not entitle the vendor to a preference over judgment creditors, as landlord of the demised premises, in case of a sale of the purchaser's property under execution, and notice given by the vendor, claiming the amount due on the contract as rent.^ § 601. It is not material whether the goods seized under the execution belong to the tenant or to a third person ; if they are upon the premises at the time of the seizure, they are liable for a year's rent, and cannot be taken away by the sheriff upon an execution, without paying the landlord the rent due him at the time of levying the execution.^ The landlord's lien, * however, extends only to rent due previous to a levy made by the sheriff on the execution, and not for rent subsequently accruing while the goods remain on the premises in the possession of the sheriff.* Nor is he entitled to the rent of the whole current year, but only to the amount due on the last quarter-day.^ And though there be several executions, he can claim no more than one year's rent ; ^ but this he is entitled to without any deduction for she- riff's poundage,'^ although the sheriff may deduct such costs as were incurred before he received notice from the landlord.^ 1 Hodgson V. Gascoine, 5 B. & A. 88. 2 Sackett v. Barnum, 22 Wend. R. 605. 8 Spencer v. McGowan, 13 Wend. R. 256. « Trappan v. Morie, 18 Johns. R. 1; Hoskins v. Knight, I M. & S. 245. 6 Hagard v. Raymond, 2 Johns. R. 478. 6 Russell B.Doty, 4 Cow. R. 576 ; West v. Sink, 2 Yeates, R. 274. 7 Colgar V. Speer, 2 B. & B. 67. 8 Henchett v. Kimpson, 2 Wils. R. 140. 406 LAW OF LANDLORD AND TENANT. [CH. XIII. § 602. None but the immediate landlord may avail himself of this provision of the statute, for the ground landlord cannot claim a year's rent upon an execution against the under-tenant ; ^ nor is a sheriff liable to the landlord for removing the goods of such a tenant from the demised premises, leaving the rent unpaid.^ And the statute only applies to cases -w^ere a judgment creditor claims adversely to the landlord, and not where the execution is sued out by the landlord himself. It was intended to protect a landlord against frauds which might be committed upon him by his tenant ; parti&ularly by his colluding with creditors, to issue executions upon his goods. For after his property had thus been placed in legal custody by an execution, and could not be dis- trained, a judgment creditor, by keeping possession for a length of time, might seriously affect the interests of the landlord. The statute, therefore, only protects landlords against executions issued by third persons, and not by the landlord himself.^ § 603. To compel the sheriff to pay over the year's rent, the landlord or his executor may move the court, out of which the execution issued, that he be paid the amount due to him out of the money produced by the levy, if it be sufficient for that pur- pose ; and, if not sufficient, then that it be paid to him on account of his rent, so far as it will satisfy the same.* And this motion may be made at any time before the sheriff has actually paid over the proceeds to the plaintiff in the execution; he being bound, upon receipt of the landlord's notice, to retain a year's rent out of the proceeds of the tenant's goods.^ The landlord may also have a special action on the case, for the sheriff's neglect to pay over such rent; for taking goods after receiving the landlord's notice, without leaving a year's rent on the premises ; ^ or for remaining upon the premises an unreasonable length of time.'^ 1 Ex parte Bennett, Str. 787. 2 Brown v. Fay, 6 Wend. E. 392. ^ Taylor v. Lanyon, 6 Bingh. E. 536 ; 4 Moore & Pay. 316 ; Camp. v. McCor- mick, 1 Denio, E. 641. * Henchett v. Kimpson, 2 "Wils. 141 ; 2 B. & B. 67. 5 Amitt V. Garnett, 3 B. & A. 440. " Levy V. Godson, 4 Term E. 687 ; 2 Doug. 655 ; 13 Ei-ice, 445 ; MeLel. 217 ; Per Ld. Denman, in Ladd v. Thomas, 12 Ad. & El. 117. ^ 2 Campb. 117 ; 1 M. & S. 247. CH. XIII.] OF A DISTKESS FOE RENT. 407 And if, on receiving notice, he finds the goods on the premises are not sufficient to satisfy a year's rent, he must withdraw.-^ But, in order to recover against a sheriff, there must be an aver- ment and proof of loss or damage sustained by the plaintiff, in consequence of the neglect complained of, at least to the extent of being delayed or prejudiced in some way.^ No action for money had and received to the landlord's use, can be maintained for the amount of a year's rent.^ § 604. In an action against the sheriff for removing goods taken in execution, without paying the landlord a year's rent, it is not necessary to prove that the year's rent is due ; it is suffi- cient to show the occupation by the tenant ; it then lies on the defendant to show that the rent has been paid. Such a claim may be supported for rent stipulated to be paid in advance ; and may be distrained for by the landlord, although he is aware that an execution is about to be issued by a judgment creditor.* If goods have been once removed under the execution, and the land- lord has notified the sheriff to pay him a year's rent, they cannot be afterwards released and the execution withdrawn, without pay- ing the landlord ; because while they were in the custody of the law the landlord could not distrain them.^ The sheriff's liability attaches, if he removes any of the goods without retaining the rent ; for the landlord cannot be called upon to show that the pro- perty remaining on the premises was not sufficient to satisfy his claim.^ But if, upon the goods of a tenant being taken in execu- tion, an agent of the landlord takes from the sheriff's officer an undertaking for a year's rent, and then consents to the goods being sold, the landlord cannot afterwards maintain this action 1 Poster V. Hilton, 1 D. P. C. 35 ; 2 B. & Ad. 418 ; Brown v. Jarvis, 5 D.P. C. 281. 2 Dyke v. Dyke, 4 Bing. N. C. 197 ; 5 D. & K. 95 ; 2 Esp. E. 475. " Green v. Austen, 3 Campb. 260. * Harrison v. Barry, 7 Price, K. 690. 6 Lane v. Crockett, 7 Price, R. 566. « Colyer v. Sheer, 2 B. & B. 67; 2 B. & Ad. 418. The cases proceed on the analogy to the action on the case, which lies against the sheriff for neglect or wrongful conduct in conducting the sale of goods under a Ji.fa., by which they are sold much under their value. Phillips v. Bacon, 9 East, E. 298. 408 LAW OF LANDLORD AND TENANT. [CH. SIII. against the sheriff, although the rent is not paid according to the undertaking, and although the agreement is void under the sta- tute of frauds, for not stating a consideration.^ After a sale under the execution, the goods are no longer in legal custody, and may, if they remain on the premises, be distrained by the landlord, notwithstanding the sale ; therefore standing crops, though protected after the sale, until they are cut and a reason- able time has elapsed for their removal, if suffered to remain after such reasonable time has elapsed, cease to be protected and become distrainable.^ ^ 605. Formerly, as soon as a landlord distrained goods or chattels for rent, he was obliged to remove them elsewhere, unless he had the consent of the tenant to impound them on the premises. If he kept them on the premises, he rendered himself liable to an action of trespass.^ But, to obviate the inconvenience which might frequently arise by enforcing this rule, the statutes provide that, the distress may be impounded in any convenient part of the land chargeable with rent. And this is the practice in Pennsylvania, although the clause of the statute 11 Geo. II., which gives this power, is not contained in the act of the assem- bly.* At common law, beasts might be put in a public pound at the charge of the owner, but if they were kept in a private pound the distrainor was bound to keep them at his peril, with provi- sion at his own cost ; and if they died for want of sustenance, the distrainor was liable. Household goods, and other dead chattels which might receive damage from the weather, must be put into a pound covert, otherwise the distrainor was answerable if they were damaged or stolen. § 606. A pound-keeper is bound to receive every thing offered to his custody, and is not answerable whether the thing were legally impounded or not. If the cattle were wrongfully taken, the person who brought the cattle is answerable and not the 1 Eothery v. Wood, 3 Campb. E. 24. 2 Peacock v. Purvis, 2 B. & B. 362. s 9 Yin. Abr. Distress, E. 4; Winterborne v. Morgan, 11 East, E. 395; 1 H. Black. 13. ■* "Woglam V. Coperthwaite, 2 Dall. E. 68. CH. Xni.] OF A DISTRESS FOR RENT. 409 pound-keeper, unless he assented to the trespass. When the cat- tle are once impounded, he cannot let them go without a replevin or the consent of the party, for they are then in custody of the the law ; and if the pound is broken the pound-keeper cannot bring an action, nor any one else than the person who distrained them.^ At common law, if any person, whether owner or not, of any cattle that had been distrained and put into the common pound, or any other lawful pound, took them out and drove them away, he was liable to an action of pound breach at the suit of the landlord ; ^ or if, being in possession of a distress which he was desirous of impounding, another person rescued it before it was actually impounded, an action on the case might be main- ■tained for the disturbance.^ The tenant, however, may lawfully rescue his goods before they are impounded, if the landlord seizes them unlawfully, as where there is no rent in arrear ; or if, though due, he tenders the rent. So, also, if the landlord takes goods privileged by law, as things protected for the sake of trade, or beasts of the plough, while other things remain on the premises sufficient to satisfy the distress. And a stranger may rescue his goods, if taken without cause.* § 607. After the goods have been seized, the tenant must at once be notified of it, and an opportunity afibrded him to redeem them. The statutes generally provide, that whenever any goods or chattels shall be distrained for rent, the officer making the dis- tress shall immediately give notice thereof, with the cause of such distress, the amount of rent due, and an inventory of the articles taken, by leaving the same with the tenant, or, in case of his absence, at the chief mansion-house, or at some other notorious place on the demised premises. And if a sale is made without giving such notice, the landlord has been held in Pennsylvania to be a trespasser ah initio? "5> 608. A distress when taken cannot be worked or used for i 1 Badkin v. Powell, Cowp. 476 ; Brandling v. Kent, 1 Term E. 62. a F. N. B. 100, b. ■■ F. N. B. 101, a; 102, b. * 2 R. S. 503, ^ 23 ; 2 "Wm. & Mary, 1, c. 5 ; Co. Lit. 160, b. 6 Kerr v. Sharp, 14 S. & B. 402. 35 410 LAW OE LANDLORD AND TENANT. [CH. XIII. any purpose, because the distrainer has only the custody of the thing as a pledge ; i but a cow may, and, indeed, ought to be milked, except where she is put into a pound to which the owner has access, that he may milk her himself.^ It is said, however, that if a landlord distrain raw cloth, he may cause it to be fulled ; but that hides cannot be tanned, because the tanning will prevent the tenant from recognizing his property.^ If an injury happens to the distress in consequence of any act of the landlord, however well intended, he must answer for it to the tenant; therefore, where a horse had several times escaped from the pound, and the landlord, for greater security, tied him to a stake in the pound, and the horse strangled himself with the rope, the landlord had to pay his full value ; for the law insists upon the landlord's keeping- the distress thus sacred, upon the principle that it is a mere pledge in his hands to secure the payment of his rent.* <5> 609. Upon the same principle he was formerly, under the old law, forbid to sell or dispose of the distress, after he had taken it into his possession, for the purpose of reimbursing himself, and was obliged to hold it until the tenant thought proper to redeem it ; his security was not, therefore, available to him before the tenant chose to make it so.^ But the stat. 2 William and Mary, chap. 5, first authorized the sale of the property distrained, and made the proceeding by distress a speedy remedy for the non- payment of rent. It provided, that if at the expiration of five days from the day of the service of such notice, the amount of the rent due, together with the costs of the distress, shall not be paid, and the goods distrained shall not be replevied according to law, the oflScer making such distress shall summon two disinterested householders, who shall be sworn by such officer, well, truly, and impartially to appraise the goods and chattels so distrained, accord- ing to the best of their understanding, and the said appraisers shall thereupon appraise the goods and chattels so distrained, and shall state the same in writing under their hands. Of the five days 1 Chamberlayn's Case, 1 Leon. 220. 2 Cro. Jac. 148 ; Ibid. « Cro. Eliz. 783. * 1 Rol. Abr. 673, 1. 26. ' Pledall V. Knapp, 1 Anders. 65. CH. Xni.] OE A DISTRESS FOE RENT. 411 mentioned in the statute, the first of them is to be taken as ex- clusive, and the last inclusive ; thus, for instance, if the seizure be made on Monday, the notice must be given the same day to expire on Saturday.^ But in Pennsylvania, it is reckoned ex- clusive of the day of distress ; and if Sunday be the last of the five days, it is not to be counted.^ The appraisers must be per- sons having no interest, either as agent or party distraining, and must be sworn before the appra,isement is made.^ The officer conducting the proceedings, must be present at the appraisement, and is the only person authorized to administer the oath ; and the proceedings -will be irregular, if the appraisers are sworn before the sheriff of an adjoining county, or the constable of a neighbor- ing town.* ■§> 610. After the five days' notice to the tenant of the distress, and five days' notice of sale have also expired, if the rent and the charges thereon still remain unpaid, and the goods have not been replevied, the officer proceeds to sell them for the best price he can obtain for them ; applying the proceeds of sales to the pay- ment of rent and charges, and the balance, if any, as directed by the statute. The landlord is not bound to sell immediately upon the expiration of the five days, but is allowed a reasonable time afterwards for the appraisement and sale.^ If, however, he gives the tenant further time for the payment of rent, and suffers the goods to remain on the premises, it will be prudent to procure the written consent of the tenant, to the landlord's keeping possession of the goods upon the premises for the further time thus given. No delay in proceeding to a sale of the property distrained, will destroy the lien for rent, nor vitiate the proceedings, where there is no evidence of collusion between the landlord and tenant.^ And, as a reasonable time will be allowed for selling, the distrained goods are during such time in custody of the law, and protected from seizure under an execution.^ If the papers upon which the ' Wallace v. King, 1 H. Bl. 13. 2 McKinley v. Reader, 6 Watts, 37. 3 Lyon V. WeMon, 9 Moore, 629 ; 2 Bingh. 334. * Kenny v. May, 1 Moo. & Rob. 56. 5 Pitt V. Shew, 4 B. & A. 208. " Bac. Abr. Execution, C. 4 : Harrison v. Barry, 4 Price, 690. 412 LAW OP LANDLORD AND TENANT. [CH. XIII. distress was made should be lost, and the sale takes place without them, the purchaser will, nevertheless, acquire a good title, and the authority may be established by secondary evidence.^ § 611. To prevent the landlord from being deprived of his dis- tress, by a clandestine and fraudulent removal of the tenant's goods from the premises, it is generally enacted, that if any tenant or lessee who shall remove his goods from any demised premises, either before or after any rent shall become due, for the purpose of avoiding the payment of such rent ; and every person who shall knowingly assist such tenant or lessee in such removal, or in con- cealing any goods so removed, shall forfeit to the landlord of the demised premises, his heirs or assigns, double the value of the goods so removed or concealed. This section authorizing the landlord to seize any goods which have been removed from the premises, and imposing a penalty on the tenant and others, remov- ing or concealing them for the purpose of defrauding the landlord, applies only to the removal of goods that belong to the tenant, and not to those of a stranger, which may happen to be upon the premises, although they may be liable to a distress.^ The statute, however, contemplates physical aid and assistance, directly or indi- rectly, in the removal or concealment of the goods, and not mere advisory aid. Nor will the removal or concealment of part of the goods, subject the party to the penalty of removing or concealing the whole. And where a tenant is in possession of goods, the law will intend that he is the owner, and the burden of proof to the contrary lies upon him who has removed them to avoid the dis- tress.^ ■^ 612. If a man's servants, or any person in his employ, by his direction, or with his knowledge and assent, assists in the removal of the tenant's goods, it will render the principal liable ; or if the goods are removed to his house, and received and con- cealed by him, he knowing the object and circumstances of the 1 Peck V. Gurney, 2 Hill, (N. Y.) E. 605. 2 Coles V. Marquand, 2 Hill, (N. Y.) E. 447; Slocnm v. Clnrk, Ibid. 475; Thornton v. Adams, 5 M. & S. 38 ; 11 Geo. II. c. 19. 3 Strong V. Stebbins, 5 Cow. E. 210. CH. XIII.] OF A DISTRESS FOE RENT. 413 removal, this will bring him within the statute; but the mere advising the removal of the goods, will not subject him to the penalty of the statute.^ And although the tenant may sell or mortgage his fixtures, yet if he does mortgage them, and the mortgagee takes possession and removes them, after they have become liable for the rent, the landlord may yet follow and dis- train them within thirty days thereafter ; but the mortgagee will not, by such removal, subject himself to the penalty imposed by the statute for a fraudulent removal.^ In an action for the penalty for assisting a tenant in concealing goods removed from the de- mised premises, a person who deters a bailifl" from taking the pro- perty by falsely denying the tenant to be the owner thereof, alleging a third person to be the owner, subjects himself to the penalty.^ But where a creditor took the goods of his debtor, and removed them from the premises by the debtor's assent, in pay- ment of a debt, apprehensive of the landlord's distraining, the court held there was nothing in the transaction in contravention of the statute.* And where the action is for aiding and assist- ing the tenant in the fraudulent removal of his goods, with intent to prevent the landlord from distraining, the landlord must prove not only that the defendant assisted the tenant in such fraudulent removal, but was also privy to the fraudulent intent of the tenant ; for, as to suits against third persons under this section, the statute is penal, and requires strict proof to bring the case within the statute.^ § 613. At common law, if an entry or authority is given to any one ly law, and he abuses it, he is to be considered a trespasser from the beginning ; his original entry, and every act done in pur- suance of it, is viewed as if the law had given him no authority whatever to enter ; ^ but if he abuses an authority given him ly the party, he is not to be held as a trespasser ab initio. The rea- 1 Lister v. Brown, 3 D. & E. 501. 2 Eeynolds v. Shuler, 5 Cow. K. 323. s Crafts V. Plum, 11 Wend. E. 143. * Bach V. Meats, 5 M. & S. 200. 6 Brooke v. Noakes, 8 B. & C. 537. « Six Carpenters' Case, 8 Co. 290; Van Brunt v. Schenck, 16 Johns. 414; 5 Wend. K. 506. 35* 414 LAW OF LANDLORD AND TENANT. [CH. XIII. son assigned for this distinction is, that where a general authority or Ucense is given by law, the law judges of a man's previous intentions by his subsequent acts ; but where the party himself gives an authority, he cannot for any subsequent cause, convert that which was originally done under his sanction, into a trespass ah initio ; in this latter case, therefore, only the subsequent acts will amount to a trespass. Thus the law gives authority to enter upon land to distrain, but if the distrainor works or kills the dis- tress, or commits any irregularity, the law adjudges that the party entered for the specific purpose of committing the particular injury, and because the act which demonstrates the intention, is a tres- pass, he is adjudged a trespasser ah initio. One of the conse- quences of this doctrine was, that if a landlord committed the least irregularity in distraining for rent, he was considered a tort feasor throughout, and answerable to the tenant for the value of the goods distrained. And if any of the acts of his agent were without the prerequisites appointed by law, as if cattle were im- pounded without previous appraisement, or goods taken under a warrant of distress for rent, were sold without appraisement and advertisement, — where, as in Pennsylvania, the statute of 11 Geo. II. c. 19, is not in force, — the landlord became a trespasser ah hiitio?- ^ 614. As this doctrine, however, was found to bear hard upon landlords, it is now provided by statute, that when a distress shall be made for rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not, therefore, be deemed unlawful, nor the party making it a trespasser from the beginning ; but the party aggrieved may maintain an action of trespass, or of trespass on the case, and recover satisfaction for the special damages he may have sustained by such irregularity, with costs.^ If, therefore, a landlord com- mences his proceedings right, but should afterwards carry them on wrong, he is only chargeable as a trespasser from the time 1 Sackrider v. McDonald, 10 Johns. K. 253 ; Purrington v. Loring, 7 Mass. E. 388 ; KeiT v. Sharp, 14 Serg. & Eaw. 399 ; Waddell v. Cook, 2 Hill, (N. T.) E. 47 ; Oxley v. Watts, 1 Term E. 12 ; Aitkenhead v. Blades, 5 Taunt. 198. 2 2 E. S. 505, § 28 ; 11 Geo. II. c. 19, ^ 19. CH. XIII.] THE ACTION OF DEBT FOR BENT. 415 when the wrong commenced, and not from the original taking of the goods ; and all the injured party can recover, is the actual damage he has sustained in consequence of the irregularity.^ The nature of the irregularity, and the peculiar circumstances of the case, must determine whether the proper form of action is trespass or case. We shall have occasion to discuss this subject more fully when we come to the action of trespass ; but as a recent illustra- tion of the statute, we will here mention, that where a landlord distrained for rent, amongst other things, some goods which were not legally distrainable, he was held to be a trespasser only as to those particular goods.^ Section II. The Action of Debt for Rent. ^ 615. The action of debt, is another remedy which the land- lord has for the recovery of rent. The action is so called because it is in legal consideration for the recovery of a debt eo nomine and in numero ; and though damages are in general awarded for the detention of the debt, yet, in most instances, they are merely nominal, and not, as in assumpsit and covenant, the principal object of the suit. By it, every kind of rent is recoverable, whether the contract of demise be by deed, or by parol ; and whether it is payable in money, corn, or other produce of the land reserved by the lease. In the latter case, the plaintiff recovers, not the produce itself, but its value in money, at the time the rent becomes payable. In addition to the debt, he recovers, also, inte- rest on the rent from the time it flvas due, as damages for its detention ; and, if payable in wheat, or other produce, he is enti- tled to interest oh the value of such produce, if it was not deli- vered on the day stipulated.^ § 616. This action is founded on the privity of contract, said 1 Winterbourne v. Morgan, U East, R. 395. "■ Hawey v. Pocock, 11 M. & W. 740. s Demy v. Parnell, 1 Eol. Abr. 591, 1. 28 ; Cheny's Case, 3 Leon. 260 ; 4 Ibid. 46, 416 LAW OF LANDLORD AND TENANT. [CH. XIII. to be annexed to the person in respect to the estate, and follows the estate. When the estate Is transferred, the remedy by debt is transferred also ; if, therefore, the lessor grant his reversion, this remedy follows the reversion to the grantee, and when he assigns it it passes to the assignee.^ The action is not maintainable in any case, unless the demand be for a sum certain, or for a pecuniary demand which can readily be reduced to a certainty. In some cases it is the peculiar remedy, as against a lessee for an apportionment of rent, upon his eviction from part of the premises by a third person, though covenant is in such cases sustainable against the assignee of the lessee.^ It is also the only remedy against a devisee of land, for a breach of covenant by the devisor.^ It is the appropriate remedy at common law for the lessor, or his assignee, against the assignee of a term of years.* So where the lessee assigned a moiety of the land for the whole term, the lessor brought debt against the assignee for a moiety of the rent ; and it was moved, in arrest of judgment, that the privity of estate and of contract remained entirely with the lessee, and that, therefore, the assignee of a moiety was not chargeable ; but the court held that the assignee, having the whole estate in the moiety of the land, has privity of estate sufiScient to be charged by the lessor, if he will, with a moiety of the rent, and gave judgment for the plaintiff.^ Or the lessor may have a joint action of debt against the lessee and assignee for the whole rent.^ § 617. So debt lies for rent upon a lease, though the defendant entered before his title began ; for though clearly he is a disseizor by his entry, and the accruing of his term does not alter his estate, yet debt lies upon the privity of contract ; and, whether the entry be tortious or not, cannot discharge the contractor from payment of rent.'^ If a lessee for years assign over his term, reserving rent, he may maintain debt for such rent in arrear, 1 Howland v. Coffin, 12 Pick. 125 ; S. C 9 Ibid. 52 ; Walker's Case, 3 Rep. 22, b ; Humble v. Oliver, Cro. Eliz. 328. 2 Stevenson v. Lambard, 2 East, R. 579 ; 2 Saund. R. 182. ■■' Doe dem. Vernon v. Vernon, 7 Ibid. 12. * Thursby v. Plant, 1 Wm. Saund. 241, b; 5 B. & C. 512. 6 Gamon v. Vernon, 2 Lev. 231 ; Sir T. Jones, 104. ^ Bailiff of Ipswich v. Martin, Cro. Jac. 411. ' Cro. Eliz. 169 j 1 Str. 550. CH. XIII.] THE ACTION OF DEBT FOB, RENT. 417 although he has no reversion.^ So the landlord, after he has entered for a forfeiture of the lease, may recover the rent -which accrued previous to such forfeiture, in this action or upon the covenants in the lease. But for rent which became due subse- quent to that time he cannot recover as landlord ; and his only remedy is, to proceed for the mesne profits in an action of eject- ment against the lessee or the person who has held the possession of the premises adversely to his claim.^ As to a lease made by tenants in common, it is settled that the survivor may sue for the whole rent, although the reservation be to the lessors according to their respective interests ; for it is a well-known rule, that an action for rent by tenants in common is in its nature a joint action, and consequently the survivor may sue for the whole. ^ § 618. Debt will also lie for use and occupation generally, without setting forth the particulars of a demise ; and where, to a general count for use and occupation, the defendant demurred that it did not set forth any demise of the premises, nor for what term they were demised ; what rent was payable, nor for what length of time the defendant held and occupied the premises; nor when the sum thereby supposed to be due became due, nor for what space of time ; the court still gave judgment for the plaintiff on that count.* The assignee of the reversion, however, in the case of a yearly tenancy by parol, cannot, it would seem, bring debt for use and occupation, where such use and occupation was before the assignment to him, but the proper remedy is debt for rent on a parol demise.^ And debt is not maintainable against the lessee after an acceptance of the assignee, but cove- nant only, as the assignment and acceptance of the assignee destroys the privity ; though, if there be no acceptance of the assignee, debt lies notwithstanding the assignment ; ^ and even covenant, after such acceptance of the assignee, only lies against the lessee upon express covenants, and not upon covenants implied in law. 1 Newcomb v. Harvey, Carth. 161. 2 Stuyvesant v. Davis, 9 Paige, R. 427. 3 Wallace v. McLaren, 1 Man. & Ry. 516. * Wilkins v. Wingate, 6 Term E. 62 ; Davies v. Edwards, 3 M. & S. 380. 5 Mortimer v. Preedy, 3 M. & W. 605, per Parke, B. 6 1 Saund. 241 ; Simpson v. Clayton, 6 Scott, 469. 418 LAW OF LANDLORD AND TENANT. [CH. XIII. ■§> 619. This action lay at common law for the rent of lands demised, either for life, for years, or at will,^ with the distinction, however, that upon a lease for years, or at will, it lay as soon as rent became in arrear ; but, on a freehold lease, debt was not maintainable until after the lease was determined, either by the death of the party for whose life it was granted,^ the surrender of the lease, or by the lessor's putting an end to the lease upon a forfeiture, or recovering the lands in an action of waste.^ This distinction is said to have arisen from the action of debt lying only upon contract ; when the freehold was in existence it could only be the subject of a real action, but, after it was determined, the claim for rent was changed into a contract ; and, therefore, as soon as the estate was at an end, debt lay for the arrears pre- viously due. It therefore required a special enactment to place freehold leases upon the same footing with leases for years.* By the Revised Statutes of New York, any person having any rent due upon any lease for life or lives, may have the same remedy to recover such arrears, by action of debt, as if such lease were for years. The statute is confined to the case of rent reserved ly lease, and does not extend to the arrears of an annuity, or rent- charge for life, charged upon lands, for which, at common law, no action of debt will lie ; ^ and as the common law, as to annuities, or rent-charges out of land of a freehold nature, still prevails, debt will not lie for arrears thereon, so long as the estate of freehold continues. Thus it has been held -that it will not lie for the arrears of a rent-charge devised to A., payable out of land devised to B. during the life of B. ; and this, though it did not appear in the declaration that the grantor had a freehold in the lands.^ § 620. The lessee, and also his executors and administrators, 1 Co. Lit. 162, a i Lit. Sec. 58, 72. 2 Co. Lit. 162, a ; Ld. Bay. 1056 ; 1 Saund. 303. 8 Ognel's Case, 4 Rep. 49. ^ Webb V. Jiggs, 4 M. & S. 113 ; Norton v. Vultee, 1 Hall, (N. Y.) E. 389 ; 1 R. S. 747; 8 Anne,'c. 14, \ 4. 6 2 Saund. 304 ; Eandall v. Eigby, 4 M. & "W. 130 ; S. C. 6 Dow. 650 ; 4 M. & S. 113; 3B. &B. 130. 6 Webb V. Jiggs, 4 M. & S. 114 ; Kelly v. Clubbe, 3 Brod. & Bing. 130 ; 2 Saund. 304 ; Eandall v. Eigby, 4 M. & W. 130; S. C. C Dow. 650. But see 1 Saund. 281, n. 1 : 2 D. & E. 603 ; 14 Ves. 491. CH. XIII.J THE ACTION OF DEBT FOR KENT. 419 remain liable to- an action of debt by the lessor or his assignee, so long as the term continues,^ and he cannot discharge himself from such liability by his own act ; ^ if, therefore, the lessee assigns the lease, he or his executor still remains liable for rent in this action ; ? but if the lessor accepts rent from the assignee, and recognizes him as his tenant, an action of debt will not lie against the original lessee, though covenant may.* If the lessee assigns part of his estate, debt lies against the assignee for the part held by him, and against the lessee for the residue.^ But the plaintiff must show that the defendant is assignee of part only, and must not declare against him as assignee of the whole, nor, as it would seem, for the whole rent.^ In like manner, if the executor or administrator should assign the lease, he still remains liable to an action of debt ; '^ and the landlord may have his choice, whether to sue the lessee or assignee ; ^ or both jointly ; ^ but the assignee is liable to this action only so long as he is possessed of the term, for after he assigns over his interest his liability ceases.'" § 621. By the common law, the assignee of the reversion or the rent was only entitled to this action against the lessee after the lessee had attorned, and recognized the change of person to whom rent was due.^^ An attornment, however, became unneces- sary after the statute of 11 Geo. II. c. 19, which has been gene- rally adopted on this side the Atlantic. Thus, the New York statute declares, where any lands or tenements shall be occupied by a tenant, a conveyance thereof, or of the rents or profits, or any other interest therein by the landlord of such tenant, shall be valid, without any attornment of such tenant to the grantee ; but the payment of rent to such grantor by his tenant, before notice 1 Eushden's Case, Dyer, 4, b. ^ Walker's Case, 3 Eep. 23. 3 Auriol V. Mills, 1 H. Black. 433 ; 4 Term R. 94. * Lord Rich v. Frank, 1 Bulst. 2 ; Yelv. 103 ; Wadham v. Marlow, 8 East, E. 314. 5 Walker's Case ; Auriol v. Mills, supra. " Curtis V. Spitley, 1 Bing. N. C. 759 ; Hare v. Cater, Cowp. 766. 7 DeTereux v. Barlow, 2 Saund. R, 181. ^ Gamon v. Vernon, 2 Lev. 231. » Com. Dig. Det. (E.) 1° Tongue v. Pitcher, 8 Lev. 295 ; 4 Mod. 71 11 Co. Lit. 309, a. 420 LAW OF LANDLORD AND TENANT. [CH. XIII. of the grant, shall be binding upon such grantee ; and the tenant shall not be liable to such grantee for any breach of the condition of the demise, until he shall have had notice of such grant.^ And •we have seen that the grantees of the reversion are entitled to the same actions which the lessor might have had, if the reversion had remained in the grantor.^ If the lessor assign his rent with- out the reversion, the assignee may maintain an action of debt for the rent, because the privity of contract is transferred ; ^ but if the lessor grant away his reversion, he cannot have an action of debt for the rent ; because, being incident to the reversion, it passes with it. The grantee of the reversion even cannot have debt against the lessee if he has assigned over ; for there was no privity between them but a mere privity of estate, and that being gone by the assignment, this action will not lie.* § 622. It would seem that, at common law, an action of debt for rent in arrear did not lie against a tenant at sufferance ; for the contract was determined, and he was adjudged to be in by wrong ; but in such cases there is now a special provision. By statute 4 Geo. II. c. 28, § 1, of which the Revised Statutes of New York, vol. i. p. 745, § 11, is almost a transcript, if any tenant for life or years, or if any other person who may have come into possession of any lands or tenements, under or by col- lusion with such tenants, shall wilfully hold over after the termi- nation of such term, and after demand made and notice in writing given, requiring the possession thereof by the person entitled thereto, such person so holding over shall pay to the person so kept out of possession, or his representatives, at the rate of double the yearly value of the lands or tenements so detained, for so long time as the same are detained, to be recovered by action of debt, against the recovery of which penalty there shall be no relief in equity. This statute has been held to be a penal statute ; and, therefore, by strict construction, a tenant for a less period than a year is not within its provisions.^ Nor will a tenant who holds 1 1 R. S. 739, 5 146. See also Farley v. Thompson, 15 Mass. R. 26. 2 Ante, § 442 ; 1 K. S. 747, § 23. ^ Allen V. Bryan, 5 Barn. & Cress. 512. « Humble v. Glover, Cro. Eliz. 328. 5 Lloyd V. Eosbee, 2 Campb. N. P. 455, CH. XIII.] THE ACTION OP DEBT FOR EENT. 421 over under a fair claim of right be considered as holding over wil- fully within the meaning of the statute, though it may be decided eventually that he has no right.^ § 623. The same statutes also declare, that if any tenant shall give notice of his intention to quit the premises holden by him, and shall not accordingly deliver up possession, such tenant, his executors, or administrators, shall thenceforth pay the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered, at the same time and in the same man- ner as the single rent ; and such double rent shall continue to be paid during all the time such tenant shall continue in possession.^ Under this statute it has been held that a tenant for a year, under a parol demise, is included in it ; that his notice need not be in writing ; and that the landlord may recover the double rent either by an action of debt or by distress ; ^ also that the tenant's notice must fix some particular time when he will quit ; for if he gives notice that he will quit as soon as he can possibly get another situation, it will not enable the landlord to recover, although he can prove that the tenant had got another situation.* And the acceptance of single rent, accrued since the notice, is a waiver of double rent, although it does not necessarily imply a consent that the tenancy should continue.^ •Ji 624. It is a general rule, that whenever an action is founded upon a deed, such deed must be declared upon ; but the action of debt for rent in arrear forms an exception to this rule, for the plaintiff may here state the substance of the demise only.^ So, 1 Wright V. Smith, 5 Esp. N. P. C. 203. One tenant in common may maintain an action on this statute, without his companion, for double the yearly value of his moiety ; for where the injury is separate, tenants in common may have several actions. Cutting v, Derby, 2 Black. E. 1077. And the action may be brought after a recovery in ejectment. Soulsby v. Nevin, 9 East, 310. 2 11 Geo. 11. c. 19, § 18; 1 R. S. 745, § 10. 8 Timmins v. Rawlinson, 3 Burr. R. 1 603. * Farrance v. Elkington, 2 Campb. N. P. C. 591. " Cowp. R. 246. e Atty V. Parish, 1 B. & P. N. R. 109; Davis v. Shoemaker, 1 Rawle, E. 135. The statute of limitations is a bar to an action of debt for rent in arrear, where the demise is without deed ; but not where the rent is reserved by specialty. Davis u- Shoemaker, 1 Rawle, R. 135 ; Freeman v. Stacy, Hutt. 109. 36 422 LAW 01" LANDLOED AND TENANT. [CH. XIII. the plaintiff need not set forth any entry or occupation ; for, though the defendant neither enters nor occupies, he must pay the rent, it being due by the contract, and not by the occupation.^ As against an assignee, it is not incumbent on the lessor to set forth the several mesne assignments ; it is sufBcient to state gene- rally, that all the estate, &c., of the lessee, vested in the defend- ant by assignment, for it cannot be presumed that the lessor is acquainted with the particulars of the assignee's title.^ But, if brought by an assignee of the reversion against the lessee, he must set forth the seizin in fee of the first tenant, and the several mes7ie assignments down to himself ; for these are necessary to make out his title, and being matter of law, must be shown to the court.^ § 625. The action of debt or covenant by a lessor against the lessee, is always transitory, and may be brought in any county, even if the land is in another state.* It is so, also, (being founded on the privity of contract,) when brought, by the heirs or personal representatives of the lessor, against the assignees, grantees, or representatives of the lessee, except on covenants against incum- brances, or relating to the title or possession of the premises.^ The same rule applies also to actions for use and occupation.^ But where the action is founded on the privity of estate only, and not on the privity of contract, it is local, and must be brought in the county where the land lies,'' as by the lessor against the assignee of the term ; or by the executor of the lessor, or by the assignee of the term against the lessor.^ So are actions of debt or covenant by the assignee of the reversion against the lessee, or an assignee of the term ; or by the assignee of the term against the assignee of the reversion.^ Debt or covenant by the lessor 1 Bellasis v. Burbricke, 1 Ld. Kay. 171. 2 Pitt V. Russell, 3 Ley. 19. " Esp. N. P. 220. « Bracket v. Alvord, 5 Cow. E. 18 ; 7 Co. 2, a ; 2 Cfo. Car. 142 ; Co. Lit. 282. ' Ibid.; E. S. 747, §23-25. ° Corporation of New York u. Dawson, 2 Johns. Cas. 335 ; 2 Caines, 374 ; 3 Serg. & E. 502. ' Cro. Car. 184 ; Cro. Jac. 143; 2 E. S. 409, § 2. » 1 was. E. 165; Hob. 37; 5 Co. 17, a; F. N. B. 146; 2 Johns. Cas. 335; 3 Serg. & Eawle, 502. 9 5Co. 17, a; P. N. B. 146, c. CH. XIII.] THE ACTION OP DEBT FOR KENT. 423 against the executor of the lessee, for arrears of rent accrued in the testator's lifetime only, is transitory ; but if brought in the debet and detinet for rent in the executor's time, it is local ; be- cause the executor is then chargeable as assignee on the privity of estate.' § 626. Debt against an executor for rent, incurred during the life of the testator, must be in the detinet only.^ But for rent incurred after the death of the lessee, the action may be brought either in the debet and detinet or in the detinet only, for the lessor has his election,^ and the only inconvenience of suing in the detinet, is to the plaintiff himself, who waives his right to demand satisfac- tion out of the estate of the defendants, and contents himself with what the testator's estate will afford. Debt by or against an exe- cutor or administrator, for rent in arrear, partly in the time of the testator or intestate, and partly in the time of the executor or administrator, is well brought in the detinet only.* If, in such case, the plaintiff, in the same declaration, charge the defendant in the detinet for the rent in the time of the testator or intestate, and in the debet or detinet for rent in his own time, the declara- tion will be bad on demurrer, because several judgments would be required.^ If, therefore, the lessor will not waive his right of demanding satisfaction out of the estate of the defendant, he must bring two actions. If A. demises land by indenture to B. for years, yielding rent, and B. dies, making C. his executor, the les- sor may have debt against the executor for the rent reserved, and in arrear after the death of the lessee, although the executor never entered or agreed ; for the executor represents the person of the testator, who, by the indenture, was estopped and concluded, dur- ing the term, to pay the rent upon his own contract, and, there- 1 3 Co. 24; 1 Sid. 266 ; 5 Lev. 80; Archb. PI. 88. 2 1 RoLAbr. 603, (S.) pi. 9. " Rich V. Prank, Cro. Jac. 238, 549 ; Eoyston v. Cordrye, Aleyn, 42. Where no place was alleged in the declaration, and the particulars of demand described the premises as situated in the wrong place ; yet, as the defendant held only one parcel of land under the plaintiff, and could not be misled, the mistake was held immaterial. But if the particulars of the demise are stated, they must be proved as stated. Bristow v. Wright, 2 Doug. 665. » Smith V. Norfolk, Cro. Car. 225. ' Salter v. Codbold, 3 Lev. 74. 424 LAW OF LANDLOKD AND TENANT. [CH. XIII. fore, although the rent is higher than the profit of the land, yet the executor cannot waive the land, but shall be charged with the rent.i In debt for rent against the lessee or his personal repre- sentatives, an assignment before the rent became due, cannot be pleaded in bar of the action, for the privity of contract remains, notwithstanding the assignment ; ^ but an assignment and accept- ance by the lessor of the assignee as his tenant, may be pleaded in bar, either by the lessee or his personal representatives ; because the lessor's acceptance of the assignee as his tenant, destroys the privity of contract.^ § 627. Where two persons claim the rent, neither of whom has been acknowledged by the tenant as his landlord, he may file a bill of interpleader for the purpose of ascertaining to which of the claimants it is to be paid.* And, although in general a court of equity will not allow a tenant to set up a title against his landlord, the rule does not hold where the question arises upon the act of the landlord, or other commencement of the relation of landlord and tenant.^ The defendant may also show, that he has been evicted, and kept out of the possession of the premises, or some material part thereof, by the landlord, and that the rent is thereby suspended.^ But it must appear that an eviction has actually taken place, for a mere trespass or disturbance by a stranger, or even by the lessor himself, will not cause a suspension of the rent ; '' and, therefore, in a case where the lessor entered upon the pre- mises and destroyed a summer-house upon them, it was held not to work a suspension of the rent.^ But when the lessor railed ofi' a part of the premises,^ and where, in another case, the landlord gave notice to the under-tenant to quit, which the under-tenant 1 Howse V. Webster, Yelr. 103 ; Helier v. Casbert, 1 Lev. 127. " Walker's Case, 3 Rep. 22, a; 1 Lev. 127. ' Marsh v. Brace, Cro. Jac. 334 ; Marrow v. Turpin, Cro. Eliz. 715. * Hodges V. Smith, 16 Ves. 203. 6 9 Ves. 107 ; 13 Ibid. 383 ; 2 Ves. Ibid. 696 ; 6 Mad. 28. * Strowd V. Willis, Cro. Eliz. 362 ; Dalston v. Reeve, Ld. Ray. 77 ; Burn v. Phelps, 1 Stark. 94. ' Reynolds v. Buckle, Hob. 326 ; Ld. Ray. 369 ; Cro. Eliz. 421 ; Taylor v. Za- mira, supra. 8 Hunt V. Cope, Cowp. 242. 9 Smith V. Rawleigh, 3 Camp. 513. CH. Xin.] THE ACTION OP DEBT FOR KENT. 425 accordingly did,^ the act of the lessor, in both cases, amounted to an eviction, and consequent suspension of the rent. This defence may be made at law when the action is brought for rent reserved by the lease ; but when the lessee cannot make out his defence at law, as where he has given a bond, or independent covenant for the amount of the rent, a court of equity will relieve him.^ § 628. The general plea of infancy cannot properly be pleaded to debt for rent on an indenture of lease ; and where a defendant pleaded infancy at the time the lease was made, the court upon demurrer held, that as the lease might be for the benefit of the infant, it was voidable only at his election, by waiving the lease before the rent day ; but it not being shown that the rent was of greater value than the land, anli the defendant being of full age before the rent day, the plaintiff had judgment.^ A plea that no rent is in arrear and unpaid, is equivalent to a plea of nil debet, since it relates not to the time of the plea pleaded, but to the commencement of the action.* A receipt for rent due at a parti- cular time, will be good presumptive evidence that all previous rent has been paid ; but this, like every other presumption, may be rebutted, or it may be shown that the receipt itself was obtained collusively or by fraud.^ 1 Bum V. Phelps, supra. ' Poston V. Jones, 2 Iredell, R. 350. ' Ketsey's Case, Cro. Jae. 320; 3 Burr. 1719; 1 Eol. Abr. 731. In debt on a specialty, there is » material distinction between those cases in which the deed is only inducement to the action, and matter of fact the foundation of it, and those in which the deed itself is the foundation and the fact merely inducement j for, though the plaintiff declare setting forth an mdenture of lease, yet, as the fact of the subse- quent occupation gives the right to the sum demanded, and is the foundation of the action and the lease is mere inducement, the defendant may plead nil debet. 1 Saund. E. 276, n. 1, 2; 2 Ibid. 297, n. 1 ; Bullus u. Giddens, 8 Johns. E. 83. This plea puts the plaintiff on proof of his whole declaration, and under it, an eviction, payment, or release, may be given in evidence. But in debt for rent on an indenture of lease, the defendant cannot under it, give in evidence that the plaintiff had no estate in the tenements ; because, if he had pleaded that specially, the plaintiff might have replied the indenture and estopped him. Blake v. IToster, 8 Term E. 487 1 2 Wils. E. 208. It seems that in Pennsylvania, a defendant may give the statute of limitations in evidence under the plea of nil debet, Davis v. Shoemaker, 1 Eawle, 135. * Warner v. Theobald, Cowp. 588. 5 Skaife v. Jackson, 3 B. & C 421 ; Farrar v. Hutchinson, 9 Ad. &. EI. 641. 36* 426 LAW OF LANDLORD AND TENANT, [CH. XIIL <5> 629. For reasons of public policy, a tenant is never allowed to impeach his landlord's title, after having accepted possession under him. A lessee by indenture is technically estopped from denying it ; ^ but a lessee under a lease by deed poll, who has not actually occupied, is not estopped from disputing the title of the lessor. Nor can a tenant to a mortgagor set up the title of a mortgagee against the mortgagor; because he holds under the mortgagor, and thereby admitted his title.^ So in debt for rent on a parol lease, non dimisit may be pleaded,^ but not for rent on indenture, even by an assignee of the lease.* But although a tenant cannot deny the right of his landlord to demise at the time of the lease, or set up an outstanding title which he has acquired adverse to that of his landlord, the estoppel goes no further ; it exists only during the continuance of his occupation, and if he is ousted by title paramount, he may plead it.® And if he obtains possession from one who falsely and fraudulently represented him- self to be the landlord, he may show that such person was not the landlord, nor the actual possessor at the time the agreement was made.^ So he may always show that the title under which he entered, has expired, or been extinguished.'^ For, if a landlord parts with his title pending the lease, the duty of the tenant, including that of paying rent, is due to the assignee, whoever he may be ; and should the tenant himself acquire the landlord's right, the lease would be extinguished. If, therefore, a lessee purchases the lessor's reversion at a sheriflf's sale on an execution against the lessor ; or acquires his interest in it, as a redeeming creditor, the operation is the same as if the lessor had granted and conveyed the reversion to the lessee, and with it the right to collect rent. Where the interest of the landlord thus acquired by the tenant extends to the whole of the demised premises, he may set it up in bar of a recovery for rent ; but if it includes only a part of the premises, it operates in diminution of the da- 1 Wilkins v. Wingate, 6 Term E. 62 ; 7 Ibid. 537 ; Blake v. Foster, 8 Ibid. 487. 2 Esp. N. P. 233 ; Cooke v. Loxley, 5 Term R. 5. ' Gilb. Debt, 438. * 2 Taunt. E. 278 ; 2 Ld. Eay. 1551 ; 6 Term E. 62 ; 7 Ibid. 537. 5 Hayne v. Maltby, 3 Term E. 441. 8 Gleiii V. Eice, 6 Watts, R. 44 ; Bobbins v. Kitchen, 8 Ibid. 390. ' Jackson v. Eowland, 6 Wend. R. 666; Binney v. Chapman, 5 Pick. R. 124. CH. XIII.] THE ACTION OP DEBT FOE RENT. 427 mages, and the rent will be apportioned.^ If, however, the action be brought by an assignee of the reversion, the defendant may dispute his derivative title.^ And where the tenant did not re- ceive possession from the plaintiff, but merely attorned to him during his tenancy, he is not thereby estopped from disputing his title, for he may, by mistake, have attorned to a person who has no title.^ § 630. It appears to be a settled rule of English law, that to an action of debt for rent the tenant cannot set up that he has been " put to expense by the landlord's breach of covenant," and so set-off one demand against the other, unless there is a covenant in his lease enabling him to do so.* And although it was decided, that where the lessor had bound himself to repair, the lessee might plead, to an action of debt for rent, that he had expended the whole amount of rent in repairs after the landlord's refusal to repair ; ^ yet the first position was afterwards fully settled, on the ground that the expenses to which the tenant may have been put, by the landlord's breach of covenant, must be unliquidated damages, and consequently not a proper subject of set-off.^ But in a case where the landlord directed the tenant to pay on his account the poor rates assessed upon him, under a promise that the levies should eat out the rent, the court allowed the tenant to set-off the rent, as so much money paid to the landlord's use.'' And if a tenant agree to lay out a certain sum in repairs, to the approval of the lessor, with a distinct agreement that the tenant may retain a given sum out of the first rent for such repairs ; the lessor's approval is not a condition precedent to the retaining of rent by the lessee.' So it is a good plea to say, that the plaintiff levied the whole amount of the rent claimed, or a certain part of it, by distress and sale ; but it is no answer that he distrained 1 Nellis V. Lathrop, 22 Wend. K. 121. ' Philips V. Pearce, 5 B. & C. 433. 8 Cornish v. Searell, 8 B. & C. 476 ; 1 Bing. 38; 3 Ibid. 474. * Johnson ». Carr, 1 Lev. 152. 6 Taylor v. Beal, Cro. Eliz. 222 | S. C. 6 Clayton v. Kinaston, Ld. Ray. 420 ; "Weigall v. "Waters, 6 Term K. 488 ; How- let V. Strickland, Cowp. 56. 7 Roper V. Bumford, 3 Taunt. R. 76. " Dallmaa v. King, 4 Bingh. 105, N. S. 428 LAW OF LANDLORD AND TENANT. [CH. XIII. goods to the value of the rent, if, in fact, he has sold them for a less sum. If he has sold them at too low a price, the tenant's remedy is by action.^ Any payment a tenant is compelled to make for his landlord, may be made the subject of a plea in this action ; and a previous request and promise to indemnify will be implied in favor of a plaintiff, who has been compelled to do that to which the defendant was legally liable. Therefore a compul- sory payment by a subtenant, to the original lessor, of rent due to him from the mediate landlord, in respect of the premises, is considered as a handing over, with the landlord's authority, of so much of the rent due to him from the tenant, and in payment of rent pro tanto ; and, as such, may be pleaded to the landlord's avowry by way of payment, as contradistinguished from set-off."^ ^ 631. The relation of landlord and tenant creates an implied consent, upon the landlord's part, that the tenant shall appropriate such part of his rent as shall be necessary to indemnify him against prior charges, and that the money so appropriated shall be considered as paid on account of rent. But this implication is liable to be rebutted ; for if the landlord were afterwards to repay the tenant the money paid by him in respect of the charge, he might recover the entire rent eo nomine, without any deduction. In fact, the difference between the two classes of cases lies in the distinction between a payment and a set-off ; the former may be pleaded to an avowry, though the latter cannot. That is a good payment which is paid as part of the rent itself, in respect of the land ; but a set-off supposes a different demand, arising in a dif- ferent right.2 Although a defendant may not technically set-off ' EflFord t!. Burgess, 1 Mood. & E. 23. ^ Sapsford v. Fletcher, 4 Term K. 5U ; Taylor v. Zamira, 6 Taunt. 524 ; Eeab V. McAllister, 8 Wend. 109 ; Westlake v. Degraw, 25 Wend. 669 ; Carter v. Car- ter, 5 Bingh. 406. And see ante, § 395. ' Sickles V. Frost, 15 Wend. K. 559; Sapsford v. Fletcher, supra, per BuUer, J. In a, case where the plaintiff declared in the first count for double the yearly value, and in the second for use and occupation, the defendant pleaded, as to the demand in the first count, nil debet ; and as to the residue, being the amount of the single rent, a tender, and paid the money into court, which the plaintiff took out of court, but proceeded to trial. The defendant moved for a nonsuit, because the plea of tender of rent covered the whole period for which the double value was claimed in the first count ; and the acceptance of the tender, which adopted the terms and character of it, must be taken to be an admission by the landlord, that CH. XIII.] THE ACTION OF DEBT I'OR RENT. 429 unliquidated damages against a demand for rent, so as to have a balance certified in his favor, he may, as we have seen, set up such damages by way of recoupment, for the purpose of extin- guishing the plaintiff's demand in whole or in part. This he is permitted to do, whether the different parts of the contract are contained in one instrument or in several ; whether one part of the contract be in writing and the other by parol ; ^ or the action be founded on a sealed or an unsealed instrument. But if the defence, in such case, goes only to some part of the consideration, the defendant cannot plead it specially, but must give notice of it ; though it is otherwise when it goes to the whole considera- tion.2 § 632. A mortgage made subsequent to a lease amounts to an immediate grant of the reversion ; and the mortgagee is entitled to all the remedies for the recovery of rent, which belong to other assignees of the reversion.^ This right, however, is confined to rent accruing subsequently to the assignment. All that has accrued before is a mere chose in action, and consequently not assignable. But as against tenants holding under leases made by the mortgagor subsequent to the mortgage, the mortgagee can neither distrain nor sue for rent in any action, since there is nei- ther privity of contract or estate between the parties.* The the defendant held the premises mentioned in the second count as tenant to him, during the whole period for which the rent was claimed ; that he received a ten- der as rent, of and for the same premises, and that it consequently operated as a waiver of the penalty. But the court held that the plaintiff was not estopped from taking the money as part of the larger sum claimed ; and that his going on with the suit showed that he did not mean to take it in satisfaction of the lesser sum. Ryal V. Rich, 10 East, E. 48. 1 Betterman v. Pierce, 3 Hill, (N. Y.) R. 171. ^ Van Epps v. Harrison, 5 Ibid. 63 ; Barber v. Rose, Ibid. 76. Upon an agree- ment to rent a house and lot, out of the rent of which was to be deducted any repairs that may be done to the same, the erection of a variety of outhouses on the lot was held not to be repairs. Adm'r of Darby v. Farrow, 1 McCord, E. 517. Sete further, as to the doctrine of recoupment, in the article Covenant to Pay Rent, ante, § 374 ; Whitbeck v. Skinner, 7 Ibid. 53. 3 Burden v. Thayer, 3 Mete. 79 ; 4 Kent, Com. 165. * Mayo V. Shattuck, 14 Peck. 533 ; McKirdeu v. Hawley, 16 Johns. R. 290. It is a good plea to say that the plaintiff levied the whole amount of the rent claimed, or a certain part of it, by distress and sale. But it is no answer to an action for rent to say, that the plaintiff distraitied goods to the value of the rent, if, in fact, he have sold them for a less sum , for if he has sold them at too low price, the 430 LAW OF LANDLORD AND TENANT. [CH. Xnl. Revised Statutes of New York, as we have seen, have taken away the right of a mortgagee to obtain possession of the premises or to receive the rent ; and a surrender of possession and payment to him can no longer be pleaded as an eviction to a subsequent action of rent by the mortgagor.^ § 633. The defendant may also plead a tender of the amount due, in all cases where the duty or sum demanded is certain, or capable of being reduced to a certainty by calculation. It is, therefore, allowed in debt, assumpsit, and covenant, where the breach is the non-payment of money, or the performance of a spe- cific thing ; but not in actions on the case, trespass, or trover, or in any other in which the damages are unliquidated.^ At com- mon law, a tender could not be made after suit brought.^ But the Revised Statutes of New York provide, that when any action at law shall be commenced for the recovery of a sum certain, or which may be reduced to a certainty by calculation, or for a casual or involuntary trespass or injury, the defendant, in any stage of the proceedings, before trial in such cause, or before the damages shall have been assessed, or before judgment ren- dered in an action of debt, may tender to the plaintiff or his attor- ney any sum of money which the defendant shall conceive suffi- cient amends for the injury done, for which such action or proceeding was instituted ; or sufficient to pay the plaintiff's demand, together with the costs of the action to the time of mak- ing such tender. And if it shall appear upon the trial of the cause, or assessment of damages, that the amount so tendered was sufficient to pay the plaintiff's demand, and the costs of suit up to the time of tender, the plaintiff shall not be entitled to recover or collect any interest on such demand from the time of such tender, or any costs incurred subsequent to that time, but shall be tenant's remedy is by action. Efford v. Burgess, 1 Mood. & Ey. 23. And the nonpayment of rent for a period of twenty, or even twenty-four years, will not be suiBcient to justify a presumption of payment, where circumstances exist tending to excuse the delay in demanding rent ; nor, under such circumstances, will a release or conveyance extinguishing the rent be presumed. Cole v. Patterson, 25 Wend. B. 456. 1 Jackson v. Myers, 11 Wend. R. 537; 2 R. S. 212. 2 Bac. Abr. tit. Tender. = Cro. Car. 254 ; 8 Cow. R. 88. CH. XIII.] THE ACTION FOR USE AND OCCUPATION. 431 liable to the defendant for the costs incurred by him subsequent to such time.^ The plea of tender need not be accompanied with a payment of the money into court ; but the effect of it is an admission of the plaintiff's cause of action to that extent, and no further.2 § 634. There is a material distinction between the effect of a tender in money due upon a contract, and a tender of specific articles. In the former case, though a tender be made and the plaintiff refuses the money, yet the tender cannot be pleaded in bar of the action, neither in debt nor assumpsit, but in bar of the damages only, that is, of interest and cost ; for the debtor must always pay his debt.^ But the consequence of a tender and refusal, where the articles are cumbrous and will subject the party tendering to a charge for keeping them, — as cattle, or any other articles requiring warehouse room, which indeed em- braces almost every article except money, — is a complete dis- charge of the contract for delivery, and the party is not bound to hold himself ready, or keep the tender good, as in case of money. He holds the articles, however, as bailee, at the risk of the person to whom they have been tendered, subject to be demanded of him, or any other person into whose hand they may come ; and if refused, an action of trover lies for their value.* Section III. The Action for Use and Occupation. § 635. At common law, an action for the use and occupation of the premises, upon a lease for years, could not be main- tained, either pending or after the expiration of the term ; because it was considered to be a real contract, the only reme- dies upon which were by distress, or an action of debt on the 1 2 R. S. 457, § 20, 23. 2 Slack V. Brown, 13 Wend. R. 394 ; Graham's Practice, 2d edit. 533. » 17 Johns. R. 253 ; 5 Cow. R. 248 ; 3 Johns. Cas. 349 ; 1 B. & P. 332. ' Per Kent, J., 3 Johns. Ch. 249, 448 ; 8 Johns. R. 447 ; 12 Ibid. 274 ; 1 Hayw. B. 142 ; 13 Wend. 95. As to what constitutes a good tender, see ante, § 393. 432 LAW OP LANDLOED AND TENANT. [CH. XIII. demise.^ In order to obviate the difficulties wliicli occurred in the recovery of rent, where the demise was not by deed, the sta- tute of 11 Geo. II. c. 19, § 14, authorized a recovery in an action on the case, for the itse and occupation of the premises. The Revised Statutes of New York also enact, — Any landlord may recover in an action on the case, a reasonable satisfaction for the use and occupation of any lands and tenements, by any person under any agreement not made by deed ; and if any parol demise, or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such 'action, the plaintiff shall not, on that account, be debarred from a recovery, but may make use thereof, as evidence of the amount of the damages to be recovered.^ In this action the landlord reco- vers not rent, but an equivalent for the rent, that is to say, a reasonable satisfaction for the use and occupation of the premises, which have been held and enjoyed under the demise ; and the rent fixed by the agreement is only used as a medium by which the damages in this form of action shall be ascertained and liqui- dated. This statute is intended to provide an easy remedy in the simple case of an actual occupation, leaving other more com- plicated cases to their appropriate and ordinary remedy.^ But though the statute specifies an action on the case, which means assumpsit, yet debt for use and occupation also lies, even if there be an express demise, where it is not by deed.* § 636. The action lies only where the relation of landlord and tenant subsists, between the parties founded on agreement express or implied ; but no such implication can arise, if there was no tenancy in contemplation between them. Consequently, as be- tween the lessor, and an under-tenant of the original lessee, there is neither privity of estate, nor of contract, the lessor cannot reco- 1 Featherstonhaugh v. Bradshaw, 1 Wend. 135 ; Cro. Car. 343 ; Hob. 284 ; 1 Rol. Abr. 7, (o.) It has been held, however, in some of the States, that this action laid at common law, independent of statute. Green v. Scorill, 4 Day, 228 ; Epps V. Cole, 4 Hen. & Munf. 161 ; Eoberts v. Serael, 3 Munr. 253 ; Crouch v. Brilles, 7 J. J. Marshall, 257 j Pott v. Lesher, 1 Yeat. 578. 2 1 U. S. 739, ^ 26. 8 Williams v. Sherman, 7 Wend. R. 109 ; Naish v. Tatlock, 2 Black. E. 233. ' Gibson v. ICirk, 1 Gale & D. 252. CH. XIII.] THE ACTION FOK USE AND OCCUPATION. 433 ver rent from the under-tenant.^ But in a case where a lease was executed for a year, at a quarterly rent, and the defendant who entered under the lessee, at the commencement of the term, and occupied for the whole year, paid the first quarter's rent to the agent of the lessor, and took receipts from him as such agent ; it was held that a jury might infer an agreement to pay rent to the lessor, so as to maintain an action in his name for use and occupation during the last quarter of the term.^ If, however, the position of the parties to each other, can be referred to any other ground than that of a distinct tenancy, no promise to pay rent can be implied ; this action cannot, therefore, be sustained against a person who came in under the plaintiff as purchaser, although he may continue to hold after the contract of sale has fallen through, for rent accruing previous to the breaking off of the contract.^ And, where the defendant and another person con- veyed to the plaintiff, an undivided moiety of several houses, of which they were seized as devisees in trust, but of one of the houses the defendant had long before been in possession, and con- tinued to occupy it after the conveyance, it was held that such occupation did not of itself entitle the plaintiff to sue for use and occupation.* § 687. For a similar reason, this action will not not lie, after a recovery in ejectment, for rent accruing after the day of the de- mise.^ Nor against a tenant who holds over, after the expiration of his term, where proceedings have been instituted against him to turn him out of possession under the statute ; for such proceed- ing is in the nature of an action of ejectment, by which the relation of landlord an(jl tenant is disowned.^ The plaintiff's remedy in such case, is either by an action of trespass for the mesne profits, or for double rent under the statute.'' The mere bringing an eject- 1 Baucroft v. Wardell, 13 Johns. R. 489 ; 7 Har. & Johns. 251 ; McFarlan v. "Watson, 3 Comst. K. 286. 2 McFarlan v. Watson, supra. 8 Osgood V. Dewey, 13 Johns. E. 240; Curtis v. Treat, 21 Maine B. 525 ; 5 B. & C. 332 ; Smith v. Stewart, 6 Johns. R. 46. « Tere v. Jones, 13 Mees. & Wels. 12. 5 Brich V. "Wright, 1 Terra E. 578. 6 Featherstonhaugh v. Bradshaw, 1 "Wend. R. 134. 7 Clarence v. Marshall, 2 C. & M. 495. 37 434 LAW OF LANDLORD AND TENANT. [CH. XIII. ment, however, and laying the demise prior to the accruing of the rent claimed, will not bar this action.^ Yet, if a party is let into possession under a contract of sale which goes off, he is liable in use and occupation, at the suit of the vendor, for the period dur- ing which he continues in possession, after the contract went off; although he may not be for occupation prior to the rescinding of the contract.^ But in no case, does it lie, unless the party have the legal estate,^ nor where the title is in dispute, for the court will not try the title in this action, the proper remedy in such latter case is by ejectment.* § 638. This action lies not only for the enjoyment of corporeal, but also of incorporeal hereditaments, even though the letting was by parol.^ As for the enjoyment of tolls ; a fishery, or watercourse ; or by the owner of a market for stallage.^ And where the de- fendant had agreed to take of the plaintiff, some veins of iron ore for forty years, at a certain rent, engaging to work the veins in certain proportions, and the plaintiff had agreed to grant such lease ; it was held to be, not a mere license, but a right constitut- ing an hereditament, and that use and occupation would lie.^ A landlord who has received a sealed note for rent due on a parol demise, may sue in assumpsit for use and occupation, on delivery of the note at the trial to be cancelled. Or, if he has distrained and sold the goods of the tenant for part of the rent, he may maintain this action for the residue.^ So if a lessee holds over after notice from the landlord, that in case he holds over beyond the day specified in the notice, he shall pay an increased rent ; the holding over is an assent to the new rent, and the landlord may recover it in this action.^ 1 Cobb V. Carpenter, 2 Campb. 13, n. ' Howard v. Shaw, 8 M. & W. 118 ; LMe v. Pearson, 7 Pick. R. 301. = Cobb V. Carpenter, 2 Campb. 13, n. * Everston v. Sawyer, 2 Wend. E. 507. 6 Bird V. Higginson, 4 N. & M. 515 ; 2 A. & E. 696. " Mayor of Newport v. Sanders, 3 B. & Ad. 411 ; 4 B. & C. 8 ; S. C. 6 D. & E. 42. 7 Jones V. Reynolds, 4 A. & E. 805 ; S. C. 6 N. & M. 441. 3 Cornell «. Lamb, 20 Johns. R. 407. 9 Lofft, 153. CH. Xni.] THE ACTION FOR TJSB AND OCCUPATION. 435 § 639. Since the statute dispensing with the necessity of an attornment by the tenant, he is liable in this action to the assignee of the reversion, after notice of his title.^ But such assignee can- not recover in this form of action, for an occupation of the pre- mises, which took place before the assignment of the reversion to him ;^ and to an action by the assignee, it is a good defence that the defendant paid the rent to the lessor, before notice of the assignment.^ This action may also be maintained by a mortgagee of the reversion ; * or by the grantee of an annuity, to whom the lessor has conveyed the demised premises as security.^ But not by a cestui que trust, where the letting has been by the trustee ; ^ nor by any person claiming under the cestui que trust;'' nor by an agent of the lessor.^ It lies, although the plaintiff has parted with the whole of his interest to the defendant, if he have reserved a rent, and the defendant has agreed to pay it.^ It will not lie, however, by a person merely claiming the estate, against the occupants, who have never held under him, however good the title of such claimant may be.-^" But an assignee of a lease, who has been recognized as such by the tenant, may sue in his own name for rent, although he may have no interest in the reversion. Thus, where a lessee had assigned the lease without the reversion and the lessee paid rent to the assignee, the Court of Appeals in New York held, that this created such a privity of contract between the tenant and the assignee, that the latter might sue in his own name, for rent subsequently accruing under the lease.^^ § 640. Where the demise is by deed, the lessor must declare specially on the demise, and cannot recover under the general indebitatus assumpsit for use and occupation ; and the rule is the 1 Birch V. Wright, 1 Term E. 378 ; 16 East, 99; 1 Bing. 147. " Mortimer v. Preely, 3 M. & W. 602., ' Birch V. Wright, supra ; Dougl. 282. * Kawson v. Eiclce, 7 Ad. & El. 451. " Birch ti. Wright, 1 Term K. 378. " Morgell V. Paul, 2 Man. & Ey. 303. ' Harris v. Boker, 12 Moore, 283. 8 Evans v. Eyans, 3 Ad. & El. 132. " Baker v. Gosling, 1 Bing. N. C. 19. M Cripps V. Blank, 9 D. &. E. 460. 11 Moflfat V. Smith, 4 Comst. 126, • 436 LAW OV LANDLORD AND TENANT. [CH. XIII. same whether the action is -against the original lessee, or his assignee ; although the lessor may recover upon an insimul eompu- tassent, even if the evidence be of an accounting concerning rent secured by deed.^ But where a tenant occupied under an agree- ment for a lease, under seal, he was held to be chargeable in assumpsit, for use and occupation, because he did not hold under the deed, but merely under the agreement.^ And where a lease by deed had expired, and the tenant held over, the landlord was also permitted to recover for the subsequent use and occupation.^ A defendant had occupied certain premises by virtue of a lease under seal, containing a covenant for renewal, which covenant, however, was void for uncertainty ; at the expiration of the term, the parties could not agree as to a renewal of the lease, and the tenant held over several years without paying rent ; this action was held maintainable to recover the rent due after the expi- ration of the lease.* But where the defendant entered on the premises under an agreement to purchase in fee, and after occu- pying them several years, refused to pay the purchase-money on a deed being tendered to him, it was decided that the action did not lie, because the relation of landlord and tenant did not exist between them.^ § 641. This action will not lie, where the defendant never took possession of the demised premises, either personally or by his agent ; and if there has been no occupation for any portion of the term, the only remedy is upon the agreement for damages in not taking possession.^ But no continued occupation for any particu- lar length of time need be shown ; possession being once taken, the agreement determines the period to which the liabiUty of the party extends.'^ Nor is an actual or personal occupation by the 1 West V. Cartledge, 5 Hill, (N. T.) K. 488 ; Dungay v. Angove, 2 Ves. Jr., 307 ; Codman v. Jenkins, U Mass. K. 93 ; Blume v. MoClerken, 10 Watts, 380. 2 Little V. Martin, 3 Wend. E. 219 ; Gillott v. Rogers, 4 Esp. 59. 8 Harding v. Crethorn, 1 Esp. E. 57. 4 Abeel v. Eadclifife, 13 Johns. E. 297 ; 15 Ibid. 505. ' Smith V. Stewart, 6 Johns. E. 46 ; Bancroft v. Wardwell, 13 Johns. 489; Ear- ley V. Thompson, 15 Mass. E. 18 ; Little v. Pearson, 7 Pick. E. 301. s Wood V. Wilcox, 1 Denio, 37 ; Jones v. Eeynolds, 7 Car. & P. 335. 7 Sulliyan v. Jones, 3 Car. & Pa. 579 ; Edge v. Strafford, 1 Cr. & J. 391 ; Wool- ley V. Watling, 7 Car. & Pa. 335, 610; 3 Ad. & El. 659. CH. XIII.] THE ACTION FOR USB AND OCCUPATION. 437 defendant required to support this action ; the constructive pos- session of an under-tenant or servant being sufficient for this pur- pose.^ But where a defendant in expectation of a lease by inden- ture, Tvhich he agreed to take from the plaintiff, procured attorn- ments from some of the tenants, and received rents from others, he was held liable to the plaintiff for use and occupation.^ So where there is an agreement to demise a house for five years, on a lease to be subsequently executed, under which the party enters and afterwards refuses to accept a lease, the owner may maintain this action ; for, taking the key of a house without a continued occupation, is enough for the plaintiff.^ But, if the landlord accepts the under-tenant as his tenant, and treats him as such, by distrain- ing upon him for rent, he cannot afterwards sue the original tenant for use and occupation.* Nor can a husband be sued alone for , the use and occupation of premises by his wife, before marriage, as he never was in possession, even constructively.^ If there is no express agreement between the parties, and the law raises an implied contract for the payment of what the occupation is really worth, from the fact that the premises belonged to the plaintiff, the obligation is coextensive with, and measured by, the enjoyment ; as soon as the occupation ceases, the implied contract ceases ; and as no express time is limited, the remuneration must necessarily accrue from day to day, and is not computed by the quarter.® 1 "Waring v. King, 8 Mees. & Wels. 571 ; Bull v. Gibbs, 8 Term E. 327; 7 C. & P. 335 ; Moffat v. Smith, 4 Comst. 126. In one case, where the defendant agreed to rent a house, and sent in a woman to clean it, with workmen to paper one of the rooms, there was held to be sufficient evidence of occupation to go to the jury. Smith V. Farst, 2 Man. & Gr. 84. 2 Neal V. Swind, 2 Cr. & J. 377. s Little V. Martin, 3 "Wend. E. 219 ; Grant v. Gill, 2 "Whart. 42 ; Hemphill v Flynn, 2 Barr, 144. * Thomas v. Cook, 2 B. & A. 119 , Hall v. Burgess, 5 B. & C. 332. 6 Eichardson v. HaU, 1 B. & B. 50. " Per Denman, C. J. in Gibson v. IQrk, 1 Q. B. 856. Mr. Justice Beardsley in a very able opinion, delivered in the case of Cleaves v. "Willoughby, 7 Hill, 88, inti- mates a doubt, whether under the New York statute, a landlord is not limited in his recovery of rent, to the period of actital use and occupation ; in opposition to the English cases, which adjudge that the action for use and occupation lies to recover the rent of the whole term, although there has been no actual occupation for the whole time in respect of which the action is brought, considering a mere legal pos- session as sufficient. The suggestion of the learned judge is based upon the differ- ent phraseology of the English and New York statutes ; but has left the point open for future adjudication. 37* 438 LAW OF LANDLORD AND TENANT. [CH. XIII. § 642. Nor is the rule different upon a general holding over, where there has been a tenancy at a specified annual rent, or upon an implied understanding ; ^ or even if there was no express agreement as to the amount of rent to be paid ; for an agreement to pay what the premises are fairly worth will be implied, wher- ever a permissive holding is established.^ And the tenant is lia- ble if the under-tenant holds over, though against his will ; but he is only liable for the time the premises are held over, and not for the year's rent.^ If one of two joint-lessees hold over without the assent of the other, the latter is not liable in this action.^ And where a tenant from year to year, on the expiration of his landlord's title, continues in possession for one quarter, and pays rent for that quarter to the party entitled, but quits at the end of it, the payment is not evidence of a tenancy for more than a quarter.^ Where a tenancy is continued beyond the original term, without any new arrangement, the jury may give the land- lord a larger sum than the old rent, if there be circumstances to show that an increased rent was expected by him, and that the understanding was not repudiated by the tenant ; ^ but, in gene- ral, the terms of the old tenancy will prevail. Thus an executor of a tenant from year to year, holding over and paying rent, will hold on the terms of the former demise, and be personally liable.7 § 643. This action will also lie against an assignee of the term; but where a tenant made a general assignment for the benefit of creditors, the lessor was not allowed to sustain this action against his trustees, without proving that they had actually occupied, and that their merely putting persons upon the premises temporarily, to take care of the goods, was not such an occupation.^ If the lessee become bankrupt, the lessor may sue the assignees for use 1 2 Gill & Johns. E. 326 ; Bishop v. Howard, 2 B. & C. 100. '■ Hoskins v. Rhodes, 1 Gill & Johns. E. 266 ; Stockett v. "Watkins, 2 Ibid. 326 ; 3 Conn. E. 303. 8 Ibbs V. Eichardson, 1 P. & D. 618. 4 Clinsty v. Tancred, 9 M. & W. 438 ; S. C. 11 Ibid. 316. 5 Freeman v. Jury, M. & M. 19 ; Warring v. King, 8 M. & W. 571. « Elgar V. "Watson, 1 C. & Marsh. 494. ' Buckworth v. Simpson, 1 C. M. & E. 834. " How V. Kennett, 3 Ad. & El. 659 ; 5 N. & M. 1 . CH. XIII.] THE ACTION FOR USB AND OCCUPATION. 439 and occupation if they actually occupy ;i but not otherwise.^ So the executors or administrators of the lessee are liable as such, in this form of action ; but they cannot be sued in their individual capacity, unless they have had an actual and beneficial occupation of the demised premises ; ^ and, in that case, the action will lie only against such of them as have so occupied.* If partners become tenants, they all continue liable until the determination of the term, although one or more of them may have retired from the partnership before that time.^ If there be an agreement between the parties, that the tenant will work the farm upon shares, it is not a lease for which rent is to be paid in produce, and the tenant is not liable to any action for rent, the landlord looks to his interest in the crops as his security, and the parties are simply tenants in common of the crops .^ § 644. As we have before had occasion to observe, if the pre- mises are occupied for an immoral purpose, with the plaintiff's knowledge, the contract is void. Thus in a case where the plain- tiff's wife, who managed the business of the house in letting lodg- ings, had let certain rooms to the defendant, knowing her to be a prostitute, and consented to her receiving visitors there for the purpose of prostitution ; it was held by the court to be a contract against good morals, and therefore entirely void, and that no action for rent could be maintained on it.'^ In another action, however, brought for the use and occupation of certain premises, it was set up as a defence that the defendant was an infant and a prostitute, and had used the premises for the purposes of prostitution ; yet the court held that this was no bar to the action, because both an infant and a prostitute must have lodg- ings.^ But upon its being further proved that the lodgings were let to the defendant for the purposes of prostitution, and with a 1 Gibson v. Courthorpe, 1 D. & Ky. 205 ; Nash v. Tatlock, 2 H. Black. 320. 2 Clark V. Webb, 1 Cr. M. & R. 29. ^ Eemnant v. Brembridge, 2 Moore, 94. * Nation v. Tozer, 1 Cr. M. & R. 172. 5 Christy v. Tancred, 7 Meea. & W. 127. s Hare v. Celey, Cro. Eliz. 143 ; Bradish v. Schenck, 8 Johns. R. 151 ; Bishop D. Doty, 1 Ver;n. R. 37 ; Caswell v. Districh, 15 Wend. R. 379. 7 Girardy v. Richardson, 1 Esp. N. P. C. 13. 8 Jennings v. Throgmorton, R. & IV^, 251. 440 LAW OF LANDLOED AND TENANT. [CH. XHI. knowledge of the facts on the part of the plaintiff, the court decided that no rent could be recovered.^ ^ 645. Where premises have been rented for a certain term, the landlord may recover the rent accruing after the premises are burnt down, and no longer inhabited by the tenant ; for so long as the term continues the landlord cannot enter, even to rebuild, and the tenant must be taken to hold the land.^ But where there has been no express demise, the defendant under the general issue may give in evidence that the premises he occupied were burnt down ; and this will form a good defence as to so much of the rent as accrued after the fire, but not as to the rent due up to that time.^ So where A. made an oral agreement for the pur- chase of B.'s house, advanced the purchase-money, and took pos- session ; before A. obtained a deed the house was destroyed by fire, and he thereupon vacated possession of the ground, refused to accept a deed which B. tendered him immediately after the fire, and commenced a suit against B., in which he recovered back the purchase-money ; it was held that A., during his occu- pation of the house, was a tenant at will to B., and liable .to him in an action of assumpsit for use and occupation ; but that A., by refusing to accept the deed, determined the tenancy at will, and was no longer liable for use and occupation.* "^ 646. This action lies though the premises, whether before or after the letting, are in an unhealthy or otherwise untenantable condition. If, by the terms of the lease, the landlord is to do the necessary repairs, and the tenant quits because the premises are in an untenantable state, he is still liable for use and occupa- tion, though, by the landlord's default, the tenant has not been, and in fact could not be, during the period for which rent is claimed, in the actual beneficial occupation.^ If the inconve- 1 Crisp V. Churchill, 1 B. & P. 340 ; 1 R. & M. 251 ; Appleton v. Camphell, 2 C. & P. 347. 2 Baker v. Holtzsapffel, 4 Taunt. E. 45 ; Izon v. Gorton, 7 Scott, 537 ; S. C. 5 Bingh. N. C. 501. « Packer v. Gibhins, 1 E. & C. L. E. 421, * Gould V. Thompson, 4 Mete. 224. = Cleares v. WiUoughby, 7 HiU, (N. T.) E. 83 ; 12 Mees. & "W. 68 ; Surplice u. Farnsworth, 8 Scott, N. E. 307. , CH. XIII.] THE ACTION FOR USE AND OCCUPATION. 441 nience, whatever it may be, can be readily removed, it should be done, and the damages set up in extinguishment or reduction of the rent, provided the inconvenience is one that comes -vvithin the contract of the landlord to remove. But if the tenant enter with knowledge, or means of knowledge of existing circumstances, he can in no case claim such reduction, unless the damage is sus- tained in consequence of a breach of the landlord's agreement to remove the nuisance.^ And, in such case, though it be ruled on the trial that he is not entitled to show that the premises were un- inhabitable, but must bring a cross action to recover his damages, a judgment will not be reversed if it be manifest that, by such decision, he has not been injured.^ § 647. This action will also lie against a tenant who quits the premises without any regular determination of the lease. ^ And therefore where, in an action for the use and occupation of apart- ments in the plaintiff's house during half a year, it appeared that the rent was claimed in consequence of the defendant's having neglected to give a notice to quit, and the defence set up was, that the plaintiff, after the defendant had quit, put up a bill in the window, and endeavored to let the premises ; Lord Kenyon expressed the opinion, that the defence insisted on would afford no answer to the plaintiff's action ; that it was for the benefit of the defendant that the apartments should be let, nor would he infer, from the circumstance of the landlord's endeavoring to let them, that the contract between the parties was put an end to, and said there must be other circumstances to show it, and not merely an act of so equivocal a kind as the one insisted on ; and as the plaintiff had proved that the defendant took the premises of him, and had paid rent, it was incumbent on the tenant to prove that the tenancy was regularly put an end to, by express evidence to that effect.* § 648. Where rent is expressly reserved, payable at stated 1 Kirkman v. Jervis, 7 Dowl. 678 ; Collins v. Barrow, 1 Mood. & B. 112. 2 Westlake v. Degraw, 25 "Wend. 669. ^ Mallott V. Brayne, 2 Campb. 104; Graham v. Wichelo, 1 C. & M. 188; Eeeve v. Bird, 1 C M. & R. 31. 4 Eedpath v. Koberts, 5 Esp. 225 ; Selw. N. P. 1829. 442 LAW OF LANDLORD AND TENANT. [CH. XIH. periods, the. landlord cannot recover a proportionable part of the rent, for the occupation of his premises, for any portion of time short of such periods ; and, therefore, ■when a person let out the first and second floors of a certain house for a year, rent payable quarterly, during a current quarter some dispute arose between them, and the tenant, who was a female, told her landlord that she should quit immediately ; the landlord answered she might go when she pleased ; she did go, and the landlord took possession of the premises ; it was held that the landlord could neither reco- ver the rent which, by virtue of the original contract, would have become due at the expiration of the current quarter,-:- the rela- tion of landlord and tenant having terminated, — nor rent pro rata, for the time she actually occupied the premises for any period short of the quarter.^ So if the landlord accepts another person as his tenant, it amounts to a surrender of the first tenant's term, and he cannot be sued for rent subsequently accruing ; ac- cordingly, where a tenant took certain apartments for a year, left them when the year was about half expired, and the landlord let them out to another person by the week, it was held that he could not recover rent against the first lessee for a subsequent portion of the year, during which the apartments had been unoccupied ; for although a tenancy from year to year, created by parol, is not determined by a parol license to quit in the middle of the quar- ter, and the tenant's quitting the premises accordingly, (the sta- tute of frauds requiring a deed or note in writing, or a surrender by operation of law,) yet the lessor, having precluded the defend- ant from occupying the apartments, by letting them to another, must be taken to have rescinded the agreement, and to have dis- pensed with the necessity of a surrender.^ And if a landlord, in the middle of a quarter, accepts from his tenant the key of the house, upon a verbal agreement, that if the tenant then gives up the possession the rent should cease ; he cannot recover any thing for subsequent use and occupation, if the tenant in fact no longer occupies the premises.^ § 649. If the rent be entire, that is, so much for the whole 1 Hall V. Burgess, 5 B. & C. 333 ; S. C. 8 D. & E. 67. 2 "Walls V. Atcheson, 3 Bingh. K. 462. " Whitehead v. Clifford, 5 Tannt. 518. CH. XIII.] THE ACTION FOR USE AND OCCUPATION. 443 premises, and the landlord evict tlie tenant from part of the pre- mises, the tenant may abandon the residue, and in that case he cannot be charged for the occiipatibn of any part ; ^ but if, after an eviction from any part, he still continues to occupy the residue, he is chargeable, not on the agreement, but upon a quantum meruit, for the fair value of that portion which he retains.^ If a lease be made to one who underlets to a third person, and during the under-tenancy the original landlord gives notice to the under- tenant to quit the premises, and he does quit accordingly, and the land remains unoccupied for a year, and then the first lessee takes possession again ; the landlord cannot recover rent against him for the year in which it was unoccupied, for such a case amounts to an eviction by the landlord.* If the defendant has been compelled to leave the premises, in consequence of a nui- sance which it was the landlord's duty to remove, this action can- not be maintained.* And if a landlord of furnished lodgings, by his misconduct, justifies a tenant in an abrupt departure, during a tenancy limited to a specific period, he cannot recover rent for the whole time agreed on, but is entitled to rent for the time dur- ing which there has been an actual occupation.^ But the circum- stance of the defendant having left, fearing a distress by the supe- rior landlord, affords no defence to this action;^ nor is it a defence that the landlord has distrained goods to the full amount of the rent where he has sold them for less ; because if he has sold them at too low a rate, the tenant's remedy is by action.'^ § 650. In this action the plaintiff may resort to the original agreement, though void under the statute of frauds, for the pur- pose of ascertaining the amount of rent agreed to be paid.^ But ' Smith.?;. Ealeigh, 3 Campb. E. 513. ^ Tomlinson v. Day, 2 B. & B. 680 ; Pendleton v. Dyett,, 8 Cow. R. 727 ; 15 Mass. E. 270 ; 3 Campb. 513 ; Burr v. Phelps, 1 Stark. E. 94 ; Pope v. Biggs, 9 B. & C. 252. 8 Burr V. Phelps, 1 Stark. E. 94. * Ante, p. 184. 6 Kirkman v. Jerris, 7 Dowl. 678. " Eickett V. TnlUck, 6 C & P. 66. ' Efford V. Burgess, 1 Mood. & E. 23. An eviction may be proved under the general issue, and need not be pleaded specially. Prentice v. Elliott, 7 M. & W. 819. 8 De Medina v. Poison, Holt, 47. 444 LAW OP LANDLORD AND TENANT. [CH. XIIL if no rent has been agreed upon, or if the agreement has fallen through, the measure of damages will be the true value of the premises, -which should be proved.^ And although the plaintiff has not declared upon the agreement, and claims generally to recover for use and occupation, the defendant is not at liberty to give evidence of the value of the premises occupied, to reduce the recovery below the amount stipulated in such agreement.^ But where a lessee took a farm under an agreement which he never signed, and the terms of which the lessor himself omitted to fulfil, the court held that the jury were not bound to give a verdict for the amount of rent mentioned in the agreement, and might ascer- tain the annual value of the premises by other evidence independ- ent of the agreement, and gave their verdict accordingly.^ Inte- rest is recoverable on all contracts for the payment of money from the time when the principal ought to have been paid ; and when- ever the sum to be paid for the occupation of premises, and the times when the payments are to be made, are specified, the plain- tiff is entitled to recover interest from those periods.* § 651. The declaration is generally on the indebitatus assumpsit count; but may be in debt. The venue is always transitory;^ and it has been even held to lie, for the use and occupation of lands in another State. ^ It must be averred in the declaration that the land was occupied by permission of the plaintiff, or at the request of the defendant.^ It need not, however, state the situa- tion of the premises, or give any other local description of them.^ Nor is it necessary to state the particulars of the demise ; or to describe the premises otherwise than generally, as divers mes- suages, lands, and tenements, or the like.^ But the mode of hold- ing under the plaintiff must be described, as whether under him- 1 Tomlinson v. Day, 2 B. & B. 680 j S. C. 5 B. Moore, 558. 2 Jewell V. Schroeppel, 4 Cow. R. 566 ; Williams v. Sherman, 7 Wend. E. 109. " Tomlinson v. Day, 2 B. & B. 680. 4 Williams v. Sherman, 7 Wend. E. 109 ; 4 McCord, E. 59. 6 King V. Frazer, 6 East, 348 ; Kirkland v. Poinsett, 1 Taunt. 570. » Kenwood v. Cheeseman, 3 S. & R. 502 ; 5 Esp. E. 31 ; 5 Taunt. 25. ' Bradley v. Davenport, 6 Conn. E. 1 . 8 King V. Frazer, 6 East, 348 ; 1 Taunt. 570. ' Wilkins v. Wingate, 6 Term R. 62. CH. XIII.] THE ACTION FOR USE AND OCCUPATION. 445 self alone, or as the survivor of another. ^ In an action against the assignees of B. a bankrupt, the declaration stated that the defendants on such a day were indebted to the plaintiff in a certain sum of money for the use and occupation of two houses, before that time occupied, as well by the bankrupt, whose estate therein the defendants afterwards had, as by the defendants, at their special instance and request, for one year then elapsed, and as tenants thereof respectively, to the plaintiff, and by his permis- sioti. The bankrupt occupied the premises during part of the year, under an agreement to pay the said sum of money for them, became bankrupt, and his assignees, the defendants, thereupon took possession and continued it for the remainder of the year. The amount due for that part of the year during which the defend- ants occupied, was paid into court. The court were of opinion that if the plaintiff could recover at all in this form of action, against one person for the use and occupation of another, it could be only on the ground of that occupation having been permitted, at the defendant'' s request, and that request must be proved ; that the words " at the special instance and request of the defendants," were, in this case, words of substance, and operative, connecting the occupation of the defendants, for which they were bound to make a satisfaction, with the occupation of B. a stranger, for whose occupation primd facie, at least, the defendants were not liable ; that, in point of fact, it was not at the request of the de- fendants, that B. had been permitted to occupy ; the defendants had no relation to B. but as his assignees, and that relation did not commence until the close of his occupation ; that relation, therefore, alone could not have the effect of making them person- ally liable to answer for his occupation before his bankruptcy. The averment, that he had been permitted to occupy " at the request" of the defendants, was, therefore, substance, and not mere form, and as the plaintiff had failed in the proof of it, he was not entitled to recover from the defendants the rent due for B.'s occupation.^ § 652. It was averred in another declaration, in consideration 1 Israel v. Simmons, 2 Stark. 535. '^ Naish V. Tatlock and others, assignees of Lediard, 2 H. Bl. E. 319. 38 446 LAW OF LANDLORD AND TENANT. [CH. XIII. that the defendants, on the 26th of November, 1801, had become and were tenants of a messuage under a certain yearly rent, the defendants promised to pay the same during the continuance of the tenancy ; that the defendants continued tenants from the time of making the promise hitherto, that the defendants did not dur- ing the continuance of the tenancy, pay the rent ; and that on the 29th September, 1803, half a year's rent was in arrear. The defendants pleaded that they were traders, committed an act of bankruptcy on 2d April, 1803, and that an assignment of thSir interest in the premises, was executed to A. and B. on the 21st May, of the same year, -who thereupon entered and occupied the messuage until the rent became due. On demurrer it was held, that the principle determined in Auriol v. Mills,''- that a bankrupt lessee, though out of possession, is still liable upon his covenant, to pay rent not due at the time of his bankruptcy, but accruing since, was applicable to every positive agreement to pay rent, whether under seal or not ; that the case referred to did not turn upon any particular effect of a covenant under seal, but on its being the personal agreement of the parties. And although it was objected that if the action was allowed, the consequence would be that there must be an apportionment of rent, yet the court said the landlord had nothing to do in this case with the question of apportionment, for he proceeds against the parties with whom he has made the agreement, and which has been broken.^ § 653. The defendant may in this action, upon the plea of the general issue, give in evidence any thing which proves nothing due ; as the delivery of corn or any other thing in satisfaction,^ or, in fact, any matter which shows that the plaintiff neve?- had cause of action ; or if he had, that matters have subsequently arisen which have avoided or discharged it.* Thus the cover- ture,^ infancy,^ or duress of the defendant at the time of entering 1 4 Term E. 94. 2 Boot V. "Wilson, 8 East, E. 311. 8 Paramore v. Johnson, 1 Ld. Eay. 566; S. C. 12; Mod. 376. * Eoad V. Sill, 15 Johns. E. 230 ; Gleason v. Clark, 9 Cow. E. 59. s James v. Fowks, 12 Mod E. 101. 5 Hartness v. Thompson, 5 Johns. E. 162; 9 Ibid. 141. CH. XIII.] THE ACTION FOR USE AND OCCUPATION. 447 into the contract,^ may be taken advantage of under the plea of the general issue. So a release ;2 accord, and satisfaction, pay- ment;^ or a former recovery for the same cause ;* and, in gene- ral, whatever shows that the plaintiflF had no subsisting cause of action at the time when the suit was commenced.^ But a tender,^ and the statute of limitations must be pleaded ; ' and evidence of a set-off cannot be given without notice, or plea.^ An eviction before the rent demanded became due, is a good defence under the general issue ; and a special plea to this effect, would be bad on special demurrer, as amounting to the general issue.^ If he be evicted from part, and he thereupon gives up the residue, it is a complete defence as to the whole ; ^^ but if instead of giving up the residue, he retain it, he will be liable to pay for the portion he occupies on the quantum meruit}^ So the defendant may plead that he assigned his interest in the demised premises to another, and that the plaintiff accepted such other person as tenant in his stead. ^^ If the landlord has mortgaged his reversion, and the mortgagee have given notice to the tenant to pay the rent to him, this will be a good defence to an action by the landlord for use and occupation ; and if the action be for rent which accrued due before the notice, the defence must be specially pleaded, but if for rent due after the notice, it may be given in evidence under the general issue.^^ Bringing an ejectment will not be a bar to an action for use and occupation for rent due before the day of the demise laid in the declaration in ejectment ; but rent accruing subsequent to that day, cannot be recovered in an action for use and occupation.^* In this action, where there has been a tendency 1 Chitty on Plead. 470. '^ 4 Taunt. 165. 8 2 Johns. R. 346 ; 4 Esp. E. 181 ; Drake v. Drake, 11 Johns. E. 531. * McDaniel v. Hughes, 3 East, E. 378. 5 Sill V. Eoad, 15 Johns. E. 230. 5 Woleott V. Van Sanford, 17 Johns. E. 253. ' Gould V. Johnson, 2 Ld. Eay. 838. " Drake v. Drake, supra; 2 E. S. 355, § 19. 9 Prentice v. Elliot, 5 M. & W. 606. 1° Smith V. Ealeigh, 3 Campb. 513. 11 Stokes V. Cooper, 3 Campb. 514, n. 12 Turner v. Hardey, 9 Mees. & W. 770. w Waddilove v. Barnett, 2 Bing. N. C. 538 ; 8 Mees. & W. 827. 1* Birch V. Wright, 1 Term E. 378 ; Pgr BuUer, J. ■ 448 LAW OF LANDLORD AND TENANT. [CH. XIH. at a specified annual rent, 9,nd a holding over, the tenant will be deemed to hold upon the terms under -which he entered ; but he is not precluded by an agreement to pay a fixed sum for a term less than a year.' § 654. The tenant is not permitted in this, or any other action, to impeach the lessor's title or right to demise at the time of the lease ; nor can he set up an outstanding title against him. Hence a plea of nil hahuit in tenementis cannot be pleaded, even where the declaration does not state that the premises belonged to the plaintiiF.2 But he may become a purchaser of the reversion or the lease, and, of course, the rent would thereby become extin- guished. Therefore, where the tenant purchased the reversion of his landlord at a sheriif 's sale, on an execution against the land- lord, it was held that the interest thus acquired by the tenant, extended to the whole of the demised premises, and that he might set it up in bar of a recovery for rent ; but where it includes only part of the demised premises, it operates only in diminution of damages, and the tenant may claim an apportionment of the rent.^ § 655. Almost any evidence which shows the relation of land- lord and tenant to exist between the parties, will support this action. It is not necessary for the plaintiff to prove an express contract with the tenant, when he took possession ; or any parti- cular reservation of rent ; nor that the tenant has once paid rent ; for an understanding to that effect will be implied, in all cases where a permissive holding is established.* Even a parol lease, under which no act has been done by the lessee, who has con- stantly repudiated it, but who has, nevertheless, enjoyed the pre- mises, may be treated by the lessor as a subsisting lease, upon which he may recover rent on a count for use and occupation.* But where the plaintiff in support of a general count for use and 1 Evertson v. Sawyer, 2 Wend. K. 507. ' Lewis V. Wallis, Say. E. 13 ; 1 Wils. R. 314 ; Eennie «. Eobinson, 1 Bing. 147. s Nellis V. Lathrop, 22 Wend. E. 121 ; Eennie v. Eobinson, 1 Bing. E. 147 ; Os- good V. Dewey, 13 Johns. E. 240; Binney v. Chapman, 6 Pick. 124. * 2 Gill & Johns. 326 ; 6 Ad. & EI. 8.39, (n). *> Scott V. Hawsham, 2 McLean, E«180. on. XIII.] OF A SUIT IN EQUITY FOE EENT. 449 occupation, offered to prove the acknowledgment of the defendant, that he hired and occupied the premises during the period in question, agreeing to pay therefor a certain sum ; and it appeared that there was, during such period, an outstanding written agree- ment for a lease of the premises in the hands of the plaintiff, which through failure of the event on the happening of which it was to take effect, never became operative ; it was held, in the absence of evidence to show that such acknowledgment referred to the written agreement, that the evidence offered was inadmis- sible.^ Section IV. Of a Suit in Equity for Rent. "§> 656. Another remedy for the collection of rent, is by a suit in equity. Before the statutes enlarging the remedies for rent in arrear, it was often necessary to go into a court of equity, in cases of rent-seek, for suitable redress. These statutes, as we have seen, give the same remedies in cases of rent-seek, as in those of rent service, or a rent charge. There are still, however, many cases where a resort to a court of equity may be proper, and even necessary ; as, where no remedy at law to meet the exigency of the case exists, or, if it exists at all, is found to be very imperfect, inconvenient, or doubtful. Thus, in the case of a rent-seek, where the grantee never had any seizin, and cannot, consequently, reco- ver at law, a court of equity will decree a seizin, and order the rent to be paid.^ Or, if the deeds by which a rent is created, are lost, so that it is uncertain what kind of rent it was ; ^ or, if there is such a confusion of boundaries, that the lands out of which it issues cannot be exactly ascertained ; * or any perplexity or uncer- tainty as to the title, or the extent of the defendant's liability." 1 Buill V. Cook, 5 Cona E. 206 ; 6 Cow. 445. 2 Foubl. on Equity, book i. ch. 3, § 3 ; Armstrong v. Gilchrist, 2 Johns. Cas. 424; 10 Johns. E. 587; 17 Ibid. 384. These observations wiU not, of course, be understood as applying to those tribunals which have blended powers of law and equity. 3 CoUett V. Jaques, 1 Ch. Ca. 120; Cox v. Foley, 1 Vem. 359. * Duke of Leeds u. New Eadnor, 2 Bro. 338, 518; Benson v. Baldwin, 1 Atk. E. 598; North v. Earl Stafford, 3 P. Wms. 148, 255. * Livingston v. Livingston, 4 Johns. Ch. E. 287. 38* 450 LAW OF LANDLORD AND TENANT. [CH. XIII. So, where the days on -which the rent is payable are stated to be uncertain ; ^ or, if a lease of an incorporeal thing is assigned, and the assignee enjoys it, he will be decreed in equity to pay rent, though not bound in law ; and if an assignee of a term render- ing rent, assigns over, the lessor may collect rent from the first assignee, so long as he held the land, although he may have no remedy at law for those arrears.^ § 657. Where a terre-tenant of lands liable for a rent-charge, has suifered the rent to be in arrear, his executor will be compel- lable in equity to pay the same, although his testator was not per- sonally bound for the rent, which was recoverable only by dis- tress ; for his personal estate has been increased by the non-pay- ment.3 So a cestui que trust of a lease rendering rent, will, in equity, be obliged to pay the rent during the time wherein he has taken the profits, if his trustee, (the lessee,) has become insolvent.* So, although a grantee of a rent shall not have a remedy in equity, merely for the want of a distress ; yet, if the want of such distress be caused by the fraud, or other default of the tenant, he will be relieved in equity.^ Or if a rent is settled upon a woman by way of jointure, but she has no power of distress, or other remedy at law, payment of the rent will be decreed in equity according to the intent of the conveyance.^ And, if a person is a grantee of an entire rent, issuing out of a manor, and there are no demesne lands on which to distrain, the rent will be decreed in equity.'' Courts of equity have also extended their aid to cases where bills have been filed for discovery and relief, and the discovery is essen- tial to the plaintifi"'s relief, the defendant admitting the plaintiff's right to the rent ; for in such case the relief may be consequent upon the discovery, and the court having obtained jurisdiction for the purpose of the discovery, will retain it, in order to carry out 1 Holder v. Chambury, 3 P. Wms. 256. 2 Com. Dig. Chancery, 4 N. 1, Kent; 2 Vem. 423; 2 Atk. E. 546; 1 Bro. Par. Cas. 30. ' Eaton College v. Beauchamp, 1 Cag. Ch. 121. * Clavering v. Westley, 3 P. Wms. 402. « Davy V. Davy, 1 Cas. Ch. 144 ; 3 Ibid. 91. « Mitf. Eq. PI. 115 i Champernoon v. Gubbs, 2 Vern. R. 382. ' Duke of Leeds v. Powell, 1 Ves. R. 171. CH. XIII.] OP A SiriT IN EQUITY FOR RENT. 451 the relief.^ Another case occurs, where an apportionment of rents among a variety of parties, may be required, in order to obtain complete justice between them.^ § 658. Where there are mutual accounts between a landlord and tenant, extending over a number of years, there being also special terms or stipulations in the lease, requiring expenditures on one side and allowances on the other, and any of such claims are controverted, a court of equity is often necessary, and always proper, to adjust the rights of the respective parties.^ But it does not appear to be necessary that there should be mutual accounts between the parties, in order to give jurisdifction to this court ; for it will take cognizance of a case where the accounts are to be examined on one side only, and a discovery is wanted in aid of the account.* So where a recovery is had in ejectment, and the plaintiff is afterwards prevented from enforcing his judg- ment, by an injunction on a bill filed by the tenant, who dies before the bill is finally disposed of; in such case, the remedy at law by an action of trespass for mesne profits is gone by the death of the tenant, since actions of tort do not survive at law ; but a court of equity will entertain a bill for an account of mesne profits, in favor of the plaintiff in ejectment, against the personal repre- sentatives of the tenant ; because it would be inequitable that his estate should receive the benefits and profits of the property of another person.® § 659. Mr. Justice Story, in his admirable treatise on Equity Jurisprudence, illustrates the beneficial effect of this jurisdiction in equity, by reference to the case of an under-tenant, who, although he is liable to be distrained for rent during his posses- sion, is not liable to be sued for rent on the covenants of the lease, there being no privity of contract between him and the lessor. 1 Story on Eq. PI. § 311, &c. ; Livingston v. Livingston, supra. "' North «. Earl Stafiford, supra; 1 Atk. E. 598. 3 Porter v. Spencer, 2 Johns. Ch. E. 171 ; Hawley v. Cramer, 4 Cow. E. 727; 2 Johns. Cas. 424 ; 7 East, E. 353 ; O'Connor v. Spaight, 1 Sch. & Lef. 305. * Post V. Kimberly, 9 Johns. R. 470, 493; Barker v. Dacie, 6 Ves. 687 ; 1 T. & Jer. 574 ; 4 Madd. E. 374. 5 Bp. of "Winchester v. Knight, 1 P. Wms. 407 ; 1 Madd. E. 116. 452 LAW OF LANDLORD AND TENANT. [CH. XIII», But if the lessee becomes insolvent, and unable to pay the rent, the under-tenant will not be permitted to enjoy the possession and profits of the estate without accounting for the rent to the original lessor. And although he has no remedy at law, a court of equity will relieve the lessor, and direct a payment of the rent to him, upon a bill making the original lessee and the under-tenant par- ties ; for if the original lessee were compelled to pay the rent, he would have a remedy over against the under-tenant. And in equity the rent seems to be a trust, or charge, upon the estate ; and the lessee is bound, at least in conscience, not to take the profits without a due discharge of the rents out of them.^ But equity will *not grant a remedy beyond what, by analogy to the law, ought to be granted. As if a rent be charged on land only, the party who comes into possession of it will not be personally charged with its payment, unless there be some fraud on his part, to remove the stock, or he do some other thing to evade the right of distress.^ Nor will a man be relieved if he becomes remedi- less, at common law, by his own negligence ; as if he loses his deed, unless it appears that it was once in his custody and he has been deprived of it by some casualty or misfortune ; or if he destroys his remedy of distress, and cannot have debt for the ar- rears, it being due out of a freehold. Neither will it relieve him in cases proper for law, — against his mispleading, or where there is a neglect and want of a plea, or if no proper plea was put in, — for it was his own fault.'' § 660. Equity will not relieve for mesne profits, unless in case of a trust, or an infant, where no entry was made by the person entitled to the mesne profits.* And, in decreeing an account of mesne profits, where the plaintiff has been prevented from assert- ing his title by infancy, a trust, or fraud, it will direct such account to be taken from the time the plaintiff's title accrued ; 1 Fonbl. Eq. B. 1, c. 5, § 5 ; Goddard v. Keate, 1 Vera. 27 ; 1 Story, Eq. Juris. § 687. 2 Thorndike v. Allington, 1 Cas. Ch. 79 ; Palmer v. Whettenbal, 1 Cas. Ch. 184 ; 1 Fonbl. Eq. B. 1, c. 3, § 3. ' 1 Fonbl. Eq. supra ; Blackball v. Coombes, 2 P. Wms. 70 ; 2 Vera. E. 525. * Owen V. Aprice, 1 Ch. R. 17 ; 2 Vera. R. 724 ; 1 Atk. R. 524; 1 Story, Eq. k 689. CH. Xni.] THE ACTION OP COVENANT. 453 until special circumstances require that sucli account should com- mence from the time of entry, or of filing the bill.^ But it is said that, in taking an account of rents and profits, even in the most favored cases, interest is seldom allowed, especially if the sum be small or uncertain.^ The cases decreeing an account of rents and profits, where the legal title is not previously established, proceed upon that respect which, in justice, is due to the interest of per- sons, who, by fraud, infancy, or otherwise, have been prevented from pursuing their legal rights. But it must not be inferred from the anxiety of courts to protect such rights, that they will at any period, or under any circumstances, exercise such indul- gence ; for if an infant neglect to enter within six years after he comes of age, he is as much bound, by the statute of limitations, from bringing a bill for an account of mesne profits, as he is from an action of account at common law.^ So if there be a verdict at law against an infant's title, a court of equity will not direct an account of mesne profits, but will merely entertain the bill for the purpose of giving the infant an opportunity to establish his title at law.* But if the plaintifi' has been kept out of possession by fraud, it is believed equity will interfere at any distance of time ; since no length of time will bar a fraud, of which the party affected by it was not apprized.^ Section V. The Action of Covenant. § 661. The action of covenant is a remedy to recover da- mages for the breach of a covenant or agreement under seal, whether such covenant is express or implied, contained in a deed- poll or indenture.^ It is the appropriate remedy, wherever the ' Dormer v. Fortescue, 3 Atk. K. 130 ; 2 P. Wms. 643. 2 Ferrers v. Ferrers, Forest, 2 ; 1 Ch. E. 97 ; Batton v. Earnly, 2 P. Wms. 163 ; 2 Atk. E. 211 ; 1 Ves. Jr. 451. s Lockley v. Lockley, Pre. Ch. 518; Davey v. Davey, 1 Ch. Cas. 144; 1 P. Wms. 444. * Earl of Newbergh v. Bickerstaif, 1 Vem. E. 295. ' Cottrell V. Purchase, Forrest, 63. » Gale V. Nixon, 6 Cow. E. 445 ; 8 Ibid. 36 ; 1 Bing. 433. 454 LAW OB LANDLORD AND TENANT. [CH. Xin. liability is created by an agreement under seal ; but if the law creates the liability independent of the covenant, an action on the case may also be maintained.^ It is the _usual remedy on leases at the suit of the lessee, his executor, or assignee, against the les- sor, for the breach of a covenant for quiet enjoyment, and the like ; ^ and by the lessor and his assigns against the lessee and his assigns, upon the various covenants usually entered into by him. And it is a concurrent remedy with debt, for the reco- very of any money demand, where there is an express or implied contract contained in a deed.^ <5i 662. Where the demand is for rent, or any other liquidated sum, the lessor may proceed either in debt or covenant against the lessee, unless he has accepted the assignee as his tenant ; but after an assignment the lessee is only liable in covenant, and then only upon his express covenant, and not upon a covenant in law.* A lessor may even bring covenant, after his reentry for non-pay- ment of rent, which rent accrued previous to the reentry.^ But if there has been an eviction from part of the land, the lessee can- not be sued in covenant, but only in debt, for his liability arises on his personal covenant, which cannot be apportioned.^ At com- mon law, upon the death of a lessor seized in fee, his heir might sue for a subsequent breach of a covenant running with the land, though not named in the lease ; ^ but none could support an action of covenant, or take advantage of a condition in the deed, except such as were parties or privies thereto ; grantees of the reversion or of a rent were consequently excluded. But, as we have seen, the statutes now give the assignee of a reversion the same reme- dies against the lessee, his assignee, or personal representative, 1 Lucky V. Eousee, 1 Marsh. E. 295. 2 Spencer's Case, 5 Co. 16, b ; Cro. Car. 221 ; 12 Mod. E. 371 ; Cro. Eliz. 553. " March v. Freeman, 3 Lev. 383 ; Byrom v. Johnson, 8 Term E. 410 ; 6 Taunt. E. 356. Where a lease has been executed by the lessor only, covenant will not lie upon It, although the lessee may have entered and enjoyed the possession. Trustees, &c. v. Spencer, 7 Ham. (Ohio) E. 151. * March v. Freeman, 3 Lev. 383, 429 ; 1 Saund. E. 241, n. 5 ; 1 Term E. 92 ; Cro. Jac. 523. ^ Hartshorne v. "Watson, 5 Scott, E. 506. " 2 East, E. 375. ' 1 Saund. E. 241, c. CH. XIII.] THE ACTION OP COVENANT. 455 upon his covenants, as the lessor had at common law ; and such assignee is in like manner liable to the same actions for a breach of covenant as the lessor was.'' § 663. Covenant is the peculiar remedy for the breach of a covenant where the damages are unliquidated, and depend in amount on the opinion of a jury.^ And it is more advisable to proceed in covenant on a lease for general damages, than to declare in debt for a penalty, securing the performance of such covenant ; because if the party elects to proceed for the penalty, he is precluded from afterwards suing for general damagesj and he cannot, in case of further breaches, recover more than the amount of the penalty ; but if he proceeds in covenant for every repeated breach, he may ultimately recover damages beyond the amount of the penalty. So where rent is due upon a lease, and there has been another breach, — as for not repairing, — for which the plaintiff claims unliquidated damages, covenant is preferable to debt, because the former action will embrace both causes of action, and damages for the whole demand may be recovered. Where, however, only a specific sum is sought to be recovered, debt is preferable to covenant ; because, in case of judgment by default, the judgment is final in the first instance, unless it be for a penalty, in which case, as we shall see presently, the damages must be assessed under the statute. Where a lease has been assigned by a deed-poll, subject to the covenants, and the assignee break them, the lessor's remedy is assumpsit; as the assignee, in such case, does not execute the deed.^ And if the breach of covenant amounts to a tort, the party has an election to proceed by action of covenant, or on the case for the tort, as against a les- see, either during his term or afterwards, for waste.* "§i 664. This action lies only in favor of a person who is party to the covenant ; in the name of the covenantee, who holds the legal 1 Ante, p. 214 ; Bac. Abr. Covenant, E. 5 ; Somerville v. Stevenson, 3 Stew. R. 271 ; 5 East, 313. 2 Richards v. Killam, 10 Mass. E. 243, 247 ; 1 M. & S. 573 ; 3, Campb. 549, n. a ; Smith V. Stewart, 6 Johns. B. 48. s 8 D. & R. 368 ; S. C. 5 B. & C. 589 ; Trustees v. Spencer, 7 Ham. (Ohio) E. 151. * 2Black.E. 848, 1111. 456 LAW OF LANDLOED AND TENANT. [CH. XIII. interest, and not of the person who is only beneficially interested ; nor can such third person be joined in the action.^ And, there- fore, -where an attorney authorized by a landlord in writing to exe- cute a lease on his behalf, signed and sealed it in his own name, but the covenants by the lessee were with the landlord by name ; it was held that the landlord could not sue upon such covenants.^ Where there are several covenantees, they must join if their inte- rest is joint, although the covenant be several.^ But if their inte- rests are several each may sue, although the covenant be joint.* If one of several joint covenantees be dead, the survivor must sue and aver the death in his declaration ; ^ or if one .named in the indenture omitted to seal it, this must be averred.® § 665. Tenants in common of a reversion may maintain cove- nant against the assignee of the term for rent in arrear, although it should appear that, at the time of suit brought, the reversion was out of the plaintifiFs, they having granted it over after the rent became due.'' For arrears of rent due, or for breaches of cove- nant (even on covenants running with the land,) prior to the assignment of the reversion, the action must be brought in the name of the assignor, and not of the assignee, as a chose in action cannot be assigned at law ; ^ and the assignor or lessor cannot, after a grant of the reversion, sue for breaches of cove- nant subsequently committed, or for rent subsequently due, as the right of action is in the assignee.^ But the assignor may, after assignment, sue for rent due before, as by the assignment it is severed from the inheritance, and does not pass to the assignee ; ^^ ' Wolfe V. "Washburn, 6 Cow. E. 201 ; Jenkins v. Morton, 3 Monroe, (Ky.) R. 28 ; Strohecker v. Grant, 16 Serg. & Eawle, 237 ; Lord Southampton v. Brown, 6B. & C. 718 ; Smith v. Emery, 7 Halst. 53; Howe v. How, 1 N. Hamp. 49. 2 Berkley v. Hardy, 5 B. & C. 355. '' Montague v. Smith, 13 Mass. R. 405 ; Ecclestone v. Clispham, 1 Saund. R. 153 i Anderson v. Martindale, 1 East, R. 497 j Petrie v. Bury, 3 Barn. & Ores. 353. * Slingsby's Case, 5 Rep. 19 ; James v. Emery, 8 Taunt. 245 ; 3 Ibid. 87. 6 Scott V. Goodwin, 1 Bos. & Pul. 67. <> Vernon v. Jeffreys, Str. 1146. ' Midgley v. Lovelace, Carth. 289 ; 12 Madd. 45. 8 Cro. Eliz. 863 ; 4 M. & S. 56 ; 8 Taunt. 227 ; 7 Sim. 149. "■ Kane 675. On a covenant to repair, the defendant may show the general state of the premises at the time of the demise, but can- not go into matter of detail ; ^ and in a covenant to repair and leave in tenantable repair, the age of the building at the time of 1 "Warn v. Bickford, 7 Price, E. 550. 2 Potter V. Bacon, 2 Wend. R 583 ; Abbott v. Allen, 12 Johns. E. 248 ; Mars- ton V. Hobbs, 2 Mass. R. 433 ; Salmon v. Bradshaw, J. Eep. 606. 8 Gale V. Eeed, 8 East, 85. * Bui. N. P. 164 ; Archer v. Marsh, 6 Ad. & El. 959. 5 Brooks V. Humphreys, 5 Bingh. N. C. 55. " Young V. Muntz, 6 Scott, 277 ; Burdett v. Withers, 2 N. & P. 122. 466 LAW OF LANDLORD AND TENANT. [OH. XIII. the demise may be considered. ^ The proper measure of damages on a lease that has several years to run, is not the amount required to put the premises in repair, but the amount to which the rerersion has been injured by the premises being out of repair.^ Where the lessee of a lease, containing covenants to repair, &c., underlets or assigns over, and the sub-lessee or assignee enters into covenants to repair, &c., not precisely similar to the covenants in the original lease, this does not operate as a covenant of indemnity ; and, therefore, the lessee cannot recover against the assignee any sum he may have paid for dilapidations, or any costs he may have been put to from the assignee's breach of covenant, but only substantial damages upon the assignee's covenant, according to the nature of the breaches. ^ So rent is recoverable by way of liquidated damages, upon a covenant by the lessee to pay a certain additional rent for every acre con- verted to tillage ; and the receipt of the original rent, without demanding the additional sum, will not be a waiver of it.* § 676. There is strictly no plea of the general issue in this action ; for non est factum only puts in issue the fact of sealing the deed, so non infregit conventionem and nil debet are insuffi- cient pleas ; and, therefore, most matters of defence must be spe- cially pleaded.^ Where the breach is assigned generally, by merely negativing the words of the covenant, a plea of perform- ance, pursuing in the like general manner the words of the cove- nant, is good.^ But where the particular facts which constitute the breach are stated, a plea of performance should meet those facts, and answer them specifically.'' The Revised Statutes of New York have simplified, and yet enlarged, the grounds of pleading in this action, by enacting, — " Whenever a defendant 1 Stanley v. Towgood, 3 Scott, 313. 2 Doe V. Kowlands, 9 C. & P. 734, Coleridge, J. " Bentley v. Watts, 7 M. & W. 601 ; Neale v. "Wyllie, 3 B. & C. 533 ; S. C. 5 D. & R. 442 ; "Walker v. Hatton, 10 M. & "W. 249 ; S. C. 2 Dow. N. S. 263. * Denton v. Richmond, 3 Tyr. 630 ; Jones v- Green, 3 M. & J. 298 ; 3 B. & A. 692. ^ Barney v. Keith, 6 "Wend. E. 555 ; 6 Cranch, 206 ; Legg v. Robinson, 7 "Wend. R. 194 ; Com. Dig. Pleader, 2 V. 4 ; 8 Term R. 283. « 14 Johns. R. 248. ' 13 Johns. R. 404; 2 Ibid. 416. CH. SIII.] THE ACTION OF COVENANT. 467 shall, in an action of covenant, by his plea deny the execution of the instrument on which the plaintiff declares, he may give notice with such plea of any matters, which, if pleaded, would be a bar to such action, and may give such matter in evidence on the trial, in the same manner as if the same had been pleaded.^ § 677. To covenant for rent, as in debt, the lessee may plead that he was evicted by the lessor from the demised premises, and kept out of possession until after the rent in question became due ; for an eviction occasions a suspension of the rent ; ^ but a mere trespass will not. For where, to covenant for the rent of a dwelling-house, the defendant pleaded that the lessor ha^ taken away a fruit-house fixed to the dwelling-house, and part of the demised, premises ; on demurrer the court held, that the fact stated in the defendant's plea being a mere trespass, for which he might have a remedy by action, would not operate as a suspen- sion of the rent.^ Although. rent is suspended by an entry into part of the premises, yet on a demise of a messuage with the appurtenances, the covenant to repair is not suspended by an entry into the back-yard, the lessee remaining in possession of the messuage.* § 678. If a tenant would excuse himself from payment of rent, upon an eviction by a stranger, he must show that such stranger had a good title to evict him ; and; in order to give the plaintiff an opportunity of controverting such title, the defendant must show how it arises; for, if' it were sufficient to allege generally 1 2 E. S. 352, § 24. In Pennsylvania, under a plea of performance, with leave to give in evidence any thing that amounts to a legal defence, the defendant may prove any matter that he might have pleaded specially. "Webster v. Warren, 2 Wash. C. C 456 ; 4 l)all.'439. On such a plea, the defendant has a right to open and close. Norris v. Ins. Co. of N. A. 3 Yeates, 84. It admits the execution of the instrument, and assumes the proof of performance. Harrison v. Park, 1 J. G. Marshall, 172 ; Eoth v. Miller, 15 S. & E. 105 ; 3 Bibb, 202. But in Alabama, a plea of payment, or of performance, does not admit the deed, and the plaintiff must prove his cause of action as if no such plea had been filed. Bryant v. Simp- son, 3 Stew. 339. 2 Fitchburgh Cot. Man. Co. v. Melvin, 15 Mass. E. 268 ; Datston v. Eeeve, Ld. Bay. 77 ; Dyett v. Pendleton, 8 Cow. E. 727. 3 Eoper V. Lloyd, T. Jones, 148. * Snelling v. Stagg, Bull. N. P. 165. 468 LAW OF LANDLORD AND TENANT. [CH. XIII. that the stranger had a good title, a single issue could not be taken on it ; and as the legality, as well as the fact of title, would be complicated together, the jury would be entangled with ques- tions of law, which are proper for the consideration of the court alone ; to avoid this inconvenience, it is necessary that the title should be specified.^ A landlord cannot maintain an action of covenant, for arrears of rent, against a party occupying demised premises, charging him as assignee, when in fact he never had an assignment of the lease ; though he will be presumed to be in as assignee if in possession, until the contrary appears.^ Nor does the action lie for breach of a covenant for quiet enjoyment, although the grantee has been prosecuted in trespass by a third person, claiming title and a recovery had against him, unless the plaintiff in the action avers and proves that such third person, before or at the date of the covenant, had lawful title, and by vir- tue thereof, entered and ousted the plaintiff.^ It is not necessary to state all the facts constituting an eviction, but a declaration setting forth such facts would be good.* § 679. Rent is only apportionable where the partial eviction is by a stranger ; ^ for, upon such eviction by the lessor, he cannot maintain either debt or covenant for rent in any amount. Al- though, upon a partial eviction by the lessor, if the lessee, instead of giving up the remainder of the premises, as he may do, conti- nues to hold them, he may be charged for their value upon a quantum meruit, but not on the covenant in the lease.^ A partial eviction by the lessor, however, is only a bar to an action on the covenant for rent, and forms no answer to a breach of other cove- nants in the lease ; at least until it be shown that the party elected to give up the residue of the premises.'^ Against the assignee of a term, though an eviction of three eighths of the estate has taken place, the defendant is not entitled to ask for an 1 Per Ld. Hardwicke, in Jordan v. Twells, Co. Temp. Hardw. 172. 2 Quackenboss v. Clarke, 12 Wend. R. 555. 8 Webb V. Alexander, 7 Wend. K. 281. ' Eickert v. Snyder, 9 Wend. E. 416 ; McGeehan v. McLaughlin, 1 Hall, 33. 5 Neale v. Mackenzie, 1 Mees. & W. 753. " Newton v. AUin, 1 Gale & D. 44 ; Digby u. Atkinson, 4 Campb. 275 ; Tom- linson v. Day, 2 B. & B. 681. ' Browne on Actions, 354. CH. XIII.] THE ACTION OE COVENANT. 469 apportionment of rent, under a general plea denying his holding as assignee. Such relief can only be had by pleading the facts specially, and not in bar of the -whole action.^ If the defendant be charged with a breach of covenant for non-payment of rent, and he have surrendered after some part of it became due, he cannot plead his surrender in bar of the whole action, for the breach is not entire, but the plaintiff may recover by proving part of it.2 § 680. An assignee, who is chargeable only in respect of his privity of estate, may show that, before the rent became due, or before the breach of covenant, he assigned the estate, and so dis- charged himself.^ And where, to a plea of this kind, the plaintiff replied, that in and by the indenture the lessee for himself, his executors, administrators, and assigns, covenanted not to assign %vithout the consent of the lessor, and that no such consent was given ; the replication was holden bad, because the action was founded on the privity of estate, which was destroyed by the assignment ; the proper remedy for the plaintiff was, by action on the covenant not to assign.* The lessee is always liable upon his covenant, notwithstanding his assignment ; but if sued in debt, he may show that he has assigned with the assent of the landlord, either expressly, or implied by his recognition of the assignee as his tenant.^ But he cannot plead to covenant for rent, an assign- ment and tender by the unaccepted assignee.^ § 681. In debt, where the plaintiff seeks to recover the rent itself, it is sufficient tp show payment after the day on which it became due, or that the lessor distrained upon him, and so satis- fied his demand ; ^ but these defences are not available in cove- nant, because here, the plaintiff seeks damages for the defendant's breach of covenant, and the plea would, in itself, amount to an 1 Lansing, jj. Van Alstyne, 3 Wend. K. 561. ^ Barnard v. Dutty, 5 Taunt. 27. " Pitcher v. Tovey, 1 Show. 340; 1 Saund. 56. * Paul V. Nurse, 8 B. & C. 486. 6 Marrowe v. Turpin, Cro. Eliz. 715. ° OrgiU V. Kempsnead, 4 Taunt. 642. 7 Dyer, 20, b ; Cro. Eliz. 140. % 40 470 LAW OF LANDLORD AND TENANT. [CH. XIII. admission that he had broken it.i In any form of action, how- ever, an undertenant may show, that before the rent became due, the superior lord or the grantee of a rent-charge, threatened to distrain for rent due from the lessee, and that he paid the rent to save his own goods.^ It must appear to have been a compulsory,- and not a mere voluntary payment ; but it will not be the less a compulsory payment, that the landlord on demanding it, allows the occupant time to pay.^ Covenants may sometimes also be discharged by parol upon a good consideration.* So an action for a breach of covenant, may be barred, by a note accepted in satis- faction of the breach.'' But a negotiable note with sureties taken by a landlord after making a distress, for the amount claimed as rent payable in sixty days, under an agreement to relinquish the distress, and not reenter or distrain within the sixty days, is only a collateral security and not a payment or satisfaction of the rent, inasmuch as the note did not appear to be taken in absolute pay- ment ; it appearing, also, that the note had not been paid or nego- tiated by the landlord, and that, therefore, all his remedies were open independent of the note.^ § 682. In an action for rent by the lessor, the defendant can- not set off damages that he may be entitled to recover against the lessor, on covenants contained in the same indenture on which the action is brought;^ but we have seen in what cases, and to what extent, a tenant may recoup himself for payments made by him on the lessor's account, or for damages he may have sustained by the lessor's failure to perform his covenants.^ The statute of limitations does not apply to actions on specialties. And an action for a breach of covenant for title, will not be barred by the bankruptcy and certificate of the covenantor, although the cause 1 Hare v. LaTill, 1 Brownl. 19 ; "Warner v. Theobald, Cowp. 689. 2 Sapsford v. Fletcher, 4 Term E. 511 ; Cobb v. Carpenter, 2 Camp. 13, n.; Tay- lor V. Zamira, 6 Taunt. E. 524. 3 Carter v. Carter, 5 Bing. 497 ; Pope v. Biggs, 9 B. & C. 245. * Barnard v. Darling, 5 Ham. 381 ; 1 Bailey, 89. 5 Moody V. Leavitt, 2 N. H. E. 171 ; Ante, p. — . " Cornell v. Lamb, 20 Johns. E. 407 ; 13 S. & E. 52. T Tattle V. Tompkins, 2 Wend. E. 407. * Ante, p. — • jd CH. Xni.] THE ACTION OF COVENANT. 471 of action accrued before the bankruptcy.! "Wliere tbe assignee of a term of years covenants to perform all the covenants in the lease, on the part of the lessee to be performed ; in an action of cove- nant by the lessor or assignor against him, for rent due and un- paid to the original lessor, it is not necessary to allege that the plaintiff has been obliged to pay the rent to the lessor, or been damnified ; for such an assignee will continue liable, although he may have assigned over the lease before any rent became due, to one who has been accepted by the lessor as his tenant ; and non damnificatus is, therefore, no answer to the declaration, for the covenant being express and positive, is broken by the rent remain- ing unpaid.^ A recovery in an action on a covenant against incumbrances, and assessment of nominal damages merely because the covenantee had not removed the incumbrance, is no bar to another action to recover the actual damage suffered to extinguish the incumbrance.^ Where a tenant under a lease containing a covenant to repair, underlets the premises to one who enters into a similar covenant with him, and the original lessor brings an action on the covenant, and recovers against the first lessee ; the damages and costs recovered in that action, and also the costs of defending it, may be recovered as special damages in an action against the under-tenant, for the breach of his covenant to re pair.* § 683. Where covenants are dependent, it is a good plea in bar that the party seeking performance, has not performed or offered to perform the covenants on his part ; ^ although it is otherwise where the covenants are independent.^ In covenant against a lessee for not repairing, the declaration stated, that by indenture the defendant covenanted to repair the demised premises, and, at the end of the term, to surrender up the same in good repair, the lessor (the plaintiff) finding timber sufficient for such repairs ; the breach assigned was for not repairing ; the defendant pleaded ' Hammond v. Toulmin, 7 Tenn E. 612 ; Mills v. Auriol, 1 H. Bl. 433. 2 Port V. Jackson, 17 Johns. E. 239, 479. " Donnell u.- Thompson, 1 Fairf. 170. * Neal V. "Wyllie, 3 Barn. &. Cress. 533 ; 5 Dow. & Ey. 442. 6 Parker v. Parmele, 20 Johns. E. 130. " McCampbeU v. MUler, 1 Bibb, 453 ; 2 Wash. C.^C. 456. 472 LAW OF LANDLORD AND TENANT. [CH. XIH. that the plaintiff did not find sufficient timber ; on demurrer, it was adjudged, that the finding timber was a thing in its nature necessary to be done first, and, therefore, a condition precedent, the performance of which ought to have been averred in the declaration.^ To an action for not repairing the premises, the tenant may show, that the lessor was bound to furnish him with timber or other materials for the repairs, and that he has neglected or refused to do so. But a plea that the landlord did not assign him materials, is bad, for he should have shown that he asked ; or that there were none proper to which he had a right, is also bad, for this puts the issue upon a point of law, and not a matter of fact.2 § 684. The execution of a lease, and the possession of the pre- mises by the defendant, is evidence sufficient pHmd facie to charge him as assignee for the non-payment of rent ; although it is not conclusive.^ But if the issue is made up on the question whether the defendant holds as assignee, the plaintiff must prove the assignment to the defendant.* Where the breach is specially assigned, and the proof alleged to be by deeds and records, they are to be shown on oyer.^ On a plea of performance, the defend- ant assumes the burden of proof, and is, therefore, entitled to open and close the case.^ Upon a breach assigned that the defendant had not used the premises in a husbandlike manner, but, on the contrary, had committed waste, an issue was taken that the de- fendant had not committed waste. At the trial, the plaintiff offered evidence to show, that the defendant had not used the pre- mises in an husbandlike mannei-, which did not, however, amount to waste ; but the judge rejected the evidence, being of opinion, that on this issue it was not competent for the plaintiff to prove any thing which fell short of waste, and the opinion was after- wards confirmed by the court.^ 1 Thomas v. Cadwallader, Willes, 496. ^ Brailsford v. Pasons, Lutw. 316. 3 Williams v. Woodward, 2 Wend. 487 ; Ibid. 563. ' Lansing v. Van Alstyne, 2 Wend. 563 ; 12 Ibid. 555. 6 Wilford V. Eose. 2 Root, 172. " Scott V. Hall, 8 Conn. R. 296. ' Harris v. Mantle, 3 Term R. 397. CH. XIII.] THE ACTION OF COVENANT. 473 >§> 685. A court of equity will not, in general, decree the specific performance of a covenant, but leaves the party to his damages in an action at law.-' - But under some circumstances, as ■where a tenant is about to do an act, against which he has expressly covenanted, this court will restrain him by injunction.^ It is only, however, where the legal remedy is inadequate and defective that equity interferes. Where a defect is discovered in the title, which can be supplied by the grantor, the grantee may file a bill in equity for a specific performance of the covenant for further assurance. And a grantor under this covenant will be compelled to convey a title he may have subsequently acquired, though he purchased such title for a valuable consideration.^ Although equity cannot specifically enforce a covenant to rebuild, unless its terms ' are clearly defined, yet, when the agreement is so distinct that the court can describe the building, as a subject for the report of a master, specific performance will be decreed.* If a covenant is broken, the landlord may indulge his caprice, and even malice, against the tenant, without any certain relief; but, as a general rule, equity will not enforce a covenant embracing a hard bargain ; and, at law, there can be no damages without an injury.^ But there are many cases of covenant broken, in which the reco- very of damages at law, however large in amount, would never be a compensation to the party aggrieved. Hence has arisen the system of preventive justice administered in a court of equity, by means of injunction to restrain breaches of covenant. This opens a wide field of learning, which we do not intend to enter upon, having already touched upon it in treating of the respective covenants of the parties, to which the reader is referred. A very frequent cause of its application, however, occurs in the preven- tion of waste, which subject we have next to discuss. 1 Flint V. Brandon, 8 Ves. E. 159; 2 Edw. 128; 2 Atk. 44; 1 Ves. Jr. 235; 2 Br. Ch. Ca. 341 ; 16 Ves. E. 405. '■ Barrett v. Blagrove, 5 Ves. E. 555. = Taylor v. Detar, 1 Ch. Ca. 274 ; 2 Ibid. 212 ; Seabonme v. Powell, 2 Vern. E. 211. * Mosely v. Virgin, 3 Ves. E. 184. 5 Doe V. Philip, 9 Moore, E. 46 ; 8 B. & C. 308. 40' 474 LAW OP LANDLORD AND TENANT. [CH. XIII. Section VI. Actions for Waste. § 686. At common law, an action of waste may be maintained by the reversioner, to recover damages for voluntary waste com- mitted by the tenant during his occupation.^ It could only be brought by him who was entitled to the immediate reversion of the premises, at the time when the waste was committed. And for the want of this privity of estate, the assignee of the reversion could not sue for waste done previous to the assignment.^ The reversioner must have an estate of freehold in him ; for, as waste is an injury to the inheritance, a tenant for years cannot maintain an action for waste.^ It was punishable only against three classes of persons — guardian in chivalry, tenant in dower, and tenant by the curtesy ; but not against a tenant for life or years : for the reason, as Lord Coke says, that the law which created the former of these estates and interests, provided a remedy itself against waste, but left the owners of the land, who created the others, to provide a remedy in their demise.* The statute of Gloucester^ extended the protection of the writ of waste to tenants for life and for years ; and directed that the tenant should forfeit the place wasted, and also treble damages. The Revised Statutes of New York have so far altered the common law, as to permit every per- son seized of an estate of remainder or reversion, to maintain an action of trespass or waste, for any injury done to the inheritance, notwithstanding any intervening estate for life or years.^ It also provides, that if any guardian, or any tenant by the curtesy, tenant in dower, or for term of life or years, or the assigns of any such tenant, shall commit waste, during their several estates or terms, of the houses, gardens, orchards, lands, or woods, or of any other thing belonging to the tenements so held, without a special 1 2 Saund. E. 252, n. (7). 2 Co. Lit. 53, a; Grene v. Cole, 2 Saund. E. 235, n. (2) ; Carris v. Ingalls, 12 Wend. R. 70 ; McLaughlin v. Long, 5 Har. & Johns. E. US. ^ McLaughlin v. Long, 5 Har. & J. 113. » Co. Lit. 145; 2 Bl. Com. 282. 5 6 Edw. 1, c. 5. 6 1 E. S. 750, § 8. CH. XIII.] ACTIONS FOK WASTE. 475 and lawful license in writing so to do, they shall be subject to an action of waste. <5> 687. To guard against fraudulent transfers, it further pro- vides, that in case any such tenant shall let or grant said estate, and still retain possession of the same, and commit waste, the party entitled to the reversion of the tenements may maintain his action of waste against such tenant. If one joint tenant, or tenant in common, shall commit waste of the estate held in joint tenancy, or in common, he shall be subject to an action of waste, at the suit of his co-tenant or tenants. And an heir, whether he be within or of full age, may maintain an action for waste done in the time of his ancestor, as well as his own time.^ This statute then pro- ceeds to point out the dififerent proceedings in the action of waste ; and if the action is brought by any other than a joint-tenant, or tenant in common, and the plaintiff prevails in the action, the judgment is, that he recover the place wasted, and treble the damages found by the jury. If the action is brought by a tenant in common, or by a joint tenant against his co-tenant, and he reco- ver ; he will be entitled, at his election, either to take judgment for the treble damages found by the jury, or to have partition made, of the premises held in common or joint tenancy. If he adopts the latter course, commissioners are to be appointed, who proceed to make a final and effectual partition between the par- ties.^ § 688. The common-law action of waste, however, has fallen into disuse, and given way to an action on the case, in the nature of waste, which is now the ordinary means of recovering damages against a tenant for voluntary waste. ^ And in this form of action the reversioner, or remainder-man in fee, for life or years, may now recover damages, either against his tenant or a stranger, for an injury to his reversion ; * and although the lease may contain a covenant against waste, he is not obliged to sue upon the cove- nant, but may elect to bring either covenant or case. The action 1 2E. S. 334, § 1-4. 2 2E. S. 335, § 10-17. s 14 East, 489. * 2 Saund. E. 252, d, note ; 3 East, E. 38. 476 LAW OP LANDLORD AND TENANT. [CH. XIII. lies against a tenant by sufferance, or for years, although holding over after notice to quit.^ But against a tenant at will, trespass, and not case, is the proper remedy.^ Though assumpsit is the usual remedy against a tenant, for not cultivating land according to the course of good husbandry, or for not repairing, yet for voluntary waste, and particularly where there has been any con- version of trees, or other property, case may frequently be pre- ferable ; which, it has been held, is a concurrent remedy with covenant, where there has been voluntary waste. And if a tenant does any act which is injurious to the reversion, the landlord may bring his action for damages during the term, even although the tenant may have it in his power to restore the premises to their original state before its expiration.^ § 689. A tenant for years, or from year to year, was formerly held liable for permissive waste ; * but the later cases hold that he is in neither case liable for mere permissive waste, unless the lease contains a covenant to repair on his part.^ The common- law action cannot be maintained against an executor, for waste committed by a testator in his lifetime ; because waste is a tort, and the cause of action strictly personal, which, in the language of the law, dies with the person. But the Revised Statutes of New York provide a remedy in such case ; for any person, or his personal representatives, may have actions of trespass against the executor or administrator of any testator or intestate, who, in his lifetime, shall have wasted, destroyed, or carried away the chat- tels of any such person, or committed any trespass on the real estate of any such person.^ The executors and administrators of a tenant for years, however, are punishable for waste committed by themselves, while in possession of the land, as other persons are. And if, by the commission of waste by a testator, his per- sonal estate has been benefited, his executors will be chargeable for it at common law, to the value of the property, in an action 1 Kinlyside v. Thornton, Black. R. 1111 ; 1 Campb. 350. 2 Cro. Car. 187 ; Sir Wm. Jones, 224 ; Cro. Eliz. 777 ; Co. Lit. 57, a ; 8 East, E. 190 ; 1 Taunt. 194. 3 Queen's College, Oxford, u. Hallett, 14 East, R. 489. * 1 Saund. B. 223, b, n. 7. 6 Gibson v. Wells, 1 N. K. 290 ; 10 B. & C. 312. 6 2E. S. 114, §5. CH. XIII.] ACTIONS FOR WASTE. 477 for money had and received.^ Every lessee, whether for life or years, is liable in an action of waste to his lessor, for all waste done on the land, by whomsoever committed ; and if done by a stranger he must answer, and take his remedy over.^ And if one of two joint tenants commit waste, it is waste by them both ; but when treble damages are imposed by any statute, they are only recoverable against the person who actually committed the waste .^ § 690. The Revised Statutes also enact, that after the actual commencement of any action for the recovery of land, or the pos- session of land, the defendant in such action shall not make any waste of the land in demand, pending the suit ; and if he does commit waste, the court, in which such action is pending, shall have power to make an order restraining him from the commis- sion of any further waste thereon ; and the court making such order shall have the same power to attach and commit the defend- ant for any violation thereof, that is possessed by the Court of Chancery, upon the violation of an injunction issued out of that court ; * the effect of which is, to give the common-law courts the same power to restrain and prevent waste, in cases of this kind, which has formerly been exercised by the Court of Chancery alone. The common-law remedies, however, are still so inade- quate, as well to prevent waste, as to give redress for waste already committed, that they have, in a great measure, given way to the remedy by bill in equity ; which is so much more easy, expeditious, and complete, that it is almost invariably resorted to. By such a bill not only may future waste be prevented, but an account may be decreed, and compensation given for past waste. Besides, as we have seen, an action on the case will not lie at law for permissive waste ; but in equity an injunction will be granted to restrain permissive as well as voluntary waste. ^ This course of proceeding is also open to many persons, who could not take advantage of the legal remedies ; and an injunction will be ' Hambly v. Trott, Cowp. E. 376. 2 Cook V. Champlaiu Transp. Co. 1 Denio, R. 91 ; I Taunt. 196. 3 2 Sannd. R. 259, b. » 2 R. S. 333, § 18, 20. 6 Caldwell v. Baylis, 2 Meriv. E. 408 ; 2 Story, Eq. Jur, 179 ; 1 Ves. Jr. 93. 478 LAW OF LANDLORD AND TENANT. [CH. XIIL granted, though no action at law can be maintained against the tenant ; nor is it necessary, in any case, that there should be a suit pending.^ <§) 691. A landlord need not wait until waste is actually com- mitted ; for if he ascertain that the tenant is about to commit any act, which would operate as a permanent injury to the estate, this court will interfere, and restrain him from doing such act. If, therefore, he begins, 'Or threatens, or shows an intention to commit waste, an injunction will be granted.^ And a court of equity will grant an injunction to restrain the tenant from doing a certain act, whether it amounts to waste or not, provided it be directly contrary to the tenant's own covenant, or even in contravention of an agreement, which may be inferred from the course of deal- ing between the parties.^ And in a case where a tenant from year to year, having received notice to quit, was proceeding to take away the crops, manure, &c., contrary to the usual course of husbandry, and to cut and damage the hedge-rows, &c., the Chancellor granted an injunction, observing that the principle applied equally to the case of a tenancy from year to year, as to a lease for a longer term.* And where the tenant, in revenge of the landlord's having distrained on him, threatened to sow the land with mustard seed, which is very injurious to the soil, and requires many years to eradicate, the court granted an injunction to prevent him.^ In another case, where the tenant cut timber and firewood from the estate for the purpose of selling it, abusing his privilege of taking such reasonable firewood as was necessary for his own use, the court granted an injunction to prevent him from proceeding any further.^ So where the defendant had a lease for four years of certain land, the principal value of which consisted in pine timber growing thereon, and was proceeding to cut large quantities of it, and saw it up in his mills ; he was 1 Kane v. Vanderburgh, 1 Johns. Ch. E. 11. 2 Gibson u. Smith, 2 Atk. B. 182; Mayor of London v. Hedger, 18 Ves. E. 355 ; Kimpton v. Eve, 2 Ves. & B. 349 ; Caldwell v. Baylis, 2 Meriv. 408. s Lord Grey de Wilton v. Saxon, 6 Ves. 106 ; 8 Ibid. 353 ; 16 Ibid. 173 -32S. * Onslow V. Corrie, 16 Ves. 173. See also Sir Wm. Pnltney v. Skellon, 5 Ves. 147, 260. ^ Pratt V. Brett, 2 Mod. Ch. E. 62. « Lord Courtown v. Ward, 1 Sch. & Lef. 8; Bennett v. Sadler, 14 Ves. 526. CH. XIII. J ACTIONS FOR WASTE. 479 restrained from cutting any more, or from removing that already cut down. § 692. If a lessor excepts the trees in his lease, the lessee is not entitled to take his usual estovers ; and, in such case, waste will not lie against the tenant for cutting trees, because they are not parcel of the thing leased, but trespass will be the appropriate remedy.^ As a tenant for life or for years has no property in timber-trees, though he has a special interest in the fruit and shade as long as they are annexed to the land,^ he will be restrained from cutting timber, even where there is a demise of a farm expressly including the trees ; for though there is no express exception as to the cutting, the law makes the exception, and the lessee cannot cut them down, because he has but a limited inte- rest.^ And where a lease contained covenants not to convert any meadow land, with other usual covenants in the lease of a farm, showing clearly the nature of the lease, for the purpose of tillage as a farm ; Lord Eldon granted an injunction to restrain the defendant, a tenant to the plaintiff, from breaking up meadow for the purpose of building, contrary to the covenants of Ms lease. '^ At a later period, however, he granted an injunction to restrain a tenant from committing waste by ploughing up pasture land, although there was no express covenant not to convert pasture into arable, on the ground that a covenant contained in the lease, to manage pasture in a husband-like manner, was equivalent to it.^ So if a tenant takes a lease of lands adjoining his dwelling- house, and, with the consent of the lessor, throw part of the demised premises into his ornamental grounds, going to consider- able expense in permanent improvements, in planting and other- wise ; though the lessor may have reserved, in the amplest man- ner, all trees and shrubs that may be planted on the premises, yet, after having stood by and seen the improvements going for- ward, giving at least an implied assent to them, he will be enjoined from injuring the beauty of the grounds by cutting down 1 Tin. Abr. Waste, (M.) pi. 26. 2 Co. E. 62 i Dyer, 90. 3 2 Wils. Ch. E. H ; 11 Eep. 46; Dyer, 37, * Lord Grey de Wilton v. Saxon, 6 Ves. 106. 5 Drury v. Molins, 6 Ves. E. 328. 480 LAW OP LANDIiOED AND TENANT. . [CH. XIII. the trees ; ^ for where a man encourages another to lay out money, upon the supposition that he never means to exercise his legal rights, equity will not permit him to exercise them.^ § 693. An injunction will also he allowed to restrain a lessee from pulling down, damaging, or destroying, contrary to his cove- nant, any of the buildings, trees, bark, wood, underwood, hedges, or fences, or from sowing the farm with any pernicious crop, and from removing from off the farm any of the hay or straw, dung or manure, produced or made thereon.^ Or to prevent a lessee from making such alterations in a dwelling-house, by changing it into a store or warehouse, as would produce a permanent injury to the building.* But the rule is not so rigid when applied to city leases ; for where a tenant, for a term of eight years, in the city of New York, pulled down a fence, and proceeded to build a stable on the rear of the lot, the court refused to restrain him from such proceeding ; on the ground that, if it amounted to waste, the party had a perfect remedy at law for the injury ; the Court of Chancery only interfering to prevent future waste, except in cases where there are some special grounds for equita- ble interference, as to waste already committed, or a discovery is necessary, or the complainant has no remedy at law. In ordinary cases, the account for waste already committed is merely inci- dental to the relief by injunction against future waste, and is directed upon the principle of preventing a needless multiplicity of suits. It was also observed that, by the law of this state as now understood, it is no waste for the tenant to erect a new edi- fice upon the demised premises, provided it can be done without destroying, or materially injuring, the buildings or other improve- ments already existing thereon. He has no right to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the pro- perty, so as to make it impossible for him to restore the premises substantially at the expiration of the term. But to apply the ancient doctrine of waste to modern tenancies, even for short 1 Jackson v. Cator, 5 Ves. E. 691. 2 Brydges v. Kilbume, 5 Ves. E. 689. 3 Pratt V. Brett, 2 Madd. E. 62 ; Kimpton v. Eve, 2 Ves. & B. 349. ' Douglas V. Wiggins, 1 Johns. C. E. 435. CH. XIII.] ACTIONS FOE, WASTE. 481 terms, would, in some of our cities and villages, put an entire stop to the progress of improvement, and deprive the tenant of those benefits which both parties contemplated at the time of the demise, without any possible advantage to the owner of the § 694. We have observed, that the immediate reversioner could alone maintain an action at law for waste, the ground of interpo- sition in general, being that, of a privity of estate between the par- ties ; but equity does not follow the law in this respect, for a remain- der-man in fee may have an injunction to stay waste against an underlessee, notwithstanding the intermediate estate.^ And it will be granted in favor of the mesne remainder-man for life ; for though he has no right to the timber, yet, if the first tenant for life should die, he would have an interest in the mast and shade.^ A termor who has built upon land, which he holds at a ground-rent, is, upon a proper case shown, as much entitled to an injunction to stay waste against his under-tenant, as if he had an estate of inhe- ritance.* So a mortgagee in possession, who commits waste by cutting timber, without applying the money arising from the sale of such timber in reducing the mortgage debt, will be restrained in equity, upon a bill filed by the mortgagor. A mortgagor in possession will also be restrained from committing waste, for the whole estate is the security, and ought not to be diminished.^ But he may cut underwood at seasonable and proper times ; Lord Eldon remarking that there never was an instance of preventing the mortgagor from taking the ordinary fruit of the land.^ Trus- tees to preserve contingent remainders are entitled to all remedies of law and equity, to support their trust, and may therefore file a bill for an injunction against a tenant for life committing waste.'' 1 Winslip V. Pitts, 3 Paige, E. 259. 2 Parraut v. Lovel, Anab. 195 ; S. C. 3 Atk. E. 723 ; Eoswell's Case, 1 Eol. Abr. 377 ; Tracy v. Tracy, 1 Vern. 23 ; Eobiuson v. Litton, 3 Atk. 210. 2 MoUinenx v. Powell, 3 P. Wms. 268, n. ; Perrott v. Perrott, 3 Atk. 94 ; Davies V. Leo, 6 Ves. 737. * Mayo V. Peaster, 2 McCord, Ch. E. 137. 5 Brady v. Waldron, 2 Johns. Ch. E. 146 ; Parrant v. Lovel, supra. ^ Hampton v. Hodges, 8 Ves. 105 ; Bromley v. Panning, 1 Johns. Ch. E. 501. T Garth v. Cotton, 1 Dickens, 183 ; 10 Ves. 273 ; Wilmot v. Lansdowne, 2 Madd. E. 137. 41 482 LAW OF LANDLOED AND TENANT. [CH. XIII. In the case, also, of joint tenants and tenants in common, with respect to whose acts of waste, as between themselves, the com- mon law has provided no remedy ; courts of equity will interfere, when it appears that waste has been committed or threatened by one tenant in common, who has become possessed of the whole premises. 1 § 695. Relief will not be granted on slight or uncertain grounds ; it is not sufficient for a plaintiff to swear, merely that he has been informed and believes, that the defendant intends to commit waste ; or upon a simple apprehension that be means to do mischief, when he denies any such intention 5 but there must appear to be an actual attempt to commit waste, or some act from which the inten- tion is fully evinced, as sending a surveyor to mark out the trees, or the like.^ Threats, however, will form a sufficient ground for an injunction ; for it is not necessary to stay until waste is actually done.^ And it has been granted against a tenant for life, who insisted upon a right to commit waste, where he had none, although no waste was in fact committed.* And to entitle a party to relief by injunction on the specific ground of waste, it must appear that the property in dispute is actually affixed to the freehold, and is not a mere movable fixture. For, where a bill was filed praying an injunction and account, stating that the defendant had com- mitted waste by destroying a dove-cote, and by removing the locks from the doors of the house, the chains from the lawn, the statues, images, and fences from the pleasure-ground, wardrobes, presses, and closets, forming part of the wainscot of the house ; the Lord Chancellor in giving his judgment said, " The foundation of this motion for an injunction is, first, a clear act of waste ; and, second, an act removing things supposed to be fixed to the freehold, wain- scot, presses, &c. As to the dove-cote, a clear act of waste is proved ; therefore, against such waste the injunction must be revived. But I cannot grant it against removing the presses, 1 Hawley v. Clowes, 2 Johns. Ch. E. 122 ; Twort v. Twort, 16 Ves. B. 132 ; Hale V. Thomas, 7 Ves. E. 589. 2 Jackson v. Cater, 5 Ves. R. 688 ; Hanson v. Gardiner, 7 Ibid. 309 : 10 Ibid. 54. = Gibson v. Smith, 2 Atk. E. 182; 6 Ves. 706; 1 Jac. & Walk. 653. * Barn. 497. CH. XIII.] ACTIONS FOE, WASTE. 483 &c., -which are mere personal property, if not affixed to the free- hold." i "^ 696. Neither will an injunction to stay waste be granted where the plaintiff's title is denied ; especially if there has been unnecessary delay in trying the title at law ; ^ nor where the par- ties are litigating their adverse rights in a court of law, or the defendant has been a long time in possession, claiming adversely .^ The question of disputed title must be first disposed of, by the proper jurisdiction. But in a case where the defendant to a bill to stay waste, stated that he was in possession by a title of his own ; but admitted that he was let into possession by the plain- tiBF's tenant, in breach of his duty to his landlord, the defendant's title was, for this purpose, held to be no better than the tenant's ; and he was not permitted to avail himself of a possession so impro- perly obtained, and was, on that account restrained.* And where the right is doubtful, equity will sometimes restrain a tenant until the right is determined at law.^ If a tenant, defending an eject- ment, makes use of the interval to do all the mischief he can, by breaches of covenant and wilful waste, an injunction will be granted at common law, though it is otherwise if an ejectment has not been brought.^ We have seen, however, that the Revised Statutes of New York provide a remedy in a court of law for such a case.'' But if a tenant covenants not to plough pasture, and if he should, to pay at the rate of twenty shillings an acre per annum, the court will refuse an injunction, as the damage has been settled between the parties themselves, and a price set for ploughing : nor, on the other hand, will the court assist a defend- ant coming in for relief against such payment.^ "§i 697. An estate for life is always impeachable for waste, 1 Kimpton v. Eve, 2 Ves. & Bea. 349. ' Higgins V. Woodward, I Hopk. R. 342. 3 Storm V. Maun, 4 Johns. Ch. E. 21 ; Jones u. Jones, 3 Menv. E. 173 ; 6 Ves. 52. * Comthope v. Maplesden, 10 Ves. 291 ; 19 Ves. 154. 5 Sunderland v. Newton, 3 Sim. E. 450. ° Lathropp v. Marsh, 5 Ves. E. 259. ' Ante, p. 325. " Woodward v. Gyles, 2 Vern. 119. 484 LAW OF LANDLORD AND TENANT. [CH. XIII. unless the contrary is expressly provided for ; ' but a tenant for life without impeachment of waste, who makes an unconscientious use of his power, will be restrained and controlled by a court of equity, whenever his acts tend to the destruction of the inherit- ance. As where the tenant for life, "without impeachment of waste," of Raby castle, had stripped the castle of the doors, win- dows, &c., and was proceeding to pull it down, he was enjoined from any further proceeding, and required to repair it forthwith.^ Upon this principle, also, equity will prevent the cutting of timber of too young a growth,^ or trees planted for the protection or shel- ter of the several mansion-houses belonging to the estate, or for ornament, or which grow in lines, vistas, walks, or other grounds belonging to the mansion.* 1 Cole V. Payson, 1 Ch. Hep. 57 ; Coop. Ill ; "Wright v. Cooper, 19 Ves. 299 ; 1 V. &B. 313. Vane v. Ld. Barnard, Free. Chan. 454; 2 Vern. K. 738. 3 Chamberlayne v. Dumwer, 1 Bro. C. C. 166 ; 3 Ibid. 548 j 2 Ibid. 88. * Jebb V. Jebb, 6 Ves. 110 - 419 ; 8 Ibid. 70 ; Day v. Merry, 16 Ves. 375 ; 6 Ves. 106. CH. XIV.] OF POSSESSORY REMEDIES. 485 CHAPTER XIV. OF POSSESSORY REMEDIES. Section I. The Action of Ejectment. ^ 698. After the tenancy has expired, by its own limitation, or been terminated by the acts of the parties, as by a forfeiture, or the like, the landlord's right of possession again becomes com- plete, and he may at once exercise it by a peaceable entry upon the premises. But in case the tenant refuses to yield possession, the landlord cannot resort to forcible measures, but must call in the law to his assistance, and receive possession at the hands of the sheriff. The ordinary common-law remedy by which he pro- ceeds to recover possession, is the action of ejectment. It is strictly, a possessory action, and the party claiming possession, recovers on his right of entry, whether his title be to an estate in fee, for life, or for years. ^ At common law, in order to support the fiction of a lease, entry, and ouster, upon which the action was founded, an actual entry upon the land, by the claimant, was absolutely necessary before bringing the action, and while on the land he executed a lease to some person who suffered himself to be turned off by a convenient friend, provided for the purpose ; for, according to the old law of maintenance, it was a penal offence to convey a title to another, when the grantor himself was not in possession. The modern action of ejectment is not confined to the trial of disputed titles, yet the necessity of the formal entry still limits the remedy to cases in which the claimant has a pre- sent right of possession. The principles of the action remain the same, and although its proceedings have been changed, and much of its quaint and useless machinery abolished, both in England 1 Jackson v. Brownson, 7 Johns. E. 227 ; Penn v. Develin, 2 Teates, 309 ; Tidd, 1190; 3Bing. 203. 41" 486 LAW OF LANDLORD AND TENANT. [CH. XIV. and the United States, the right to make an entry, continues to be requisite, though the entry itself is unnecessary.^ § 699. According to the common-law rule, this action may be brought against any person in possession, by any one having a pre- sent exclusive right of possession.^ By the Revised Statutes of New York, no person can recover in ejectment unless he has at the time of commencing the action a valid subsisting interest in the premises claimed, and a right to recover the same, or to recover the possession thereof, or of some share, interest, or portion thereof, to be proved and established at the trial. If the premises for which the action is brought, are actually occupied by any per- son, such actual occupant must be named defendant in the declara- tion ; if they are not so- occupied, the action must be brought against some person exercising acts of ownership, on the premises claimed, or some interest therein at the commencement of the suit. It can only be maintained for real property corporeal, upon which an entry can be made, and of which the sheriff can deliver actual possession. It does not, therefore, lie for property which in legal consideration is not tangible, as for a mere rent, common in gross, watercourse, or other incorporeal hereditament which passes only by grant.^ But in general it lies for any thing demisable, as for a common appendant or appurtenant, water- course, fishery, or the like, if demanded with the land in respect of which it is claimed ; for the sheriff, in giving possession of the land, gives possession of the hereditament.* The reservation to the grantor, " of the right and privilege of erecting a mill-dam at a certain place described, and to occupy and possess the said pre- 1 Colston V. McVay, 1 Marsh. (Ky.) B. 251 ; Jackson dem. Livingston v. Selo- ver, 10 Johns. E. 368 ; Hawk v. Senseman, 6 S. & E. 21 ; Clay v. White, 1 Mumf. 162; Lessee of Eugge v. Ellis, 1 Bay, E. 107 ; Young v. Irwin, 2 Hay. E. 11 ; White V. St. Guiron's, 1 Minor, M. E. 331 j Taylor v. Buckner, 2 Marsh. E. 19 ; Sherman v. Irvine's Lessee, 4 Cranch, 369. In Alabama, the action of trespass to try titles, has been substituted for the actions of ejectment, and trespass for mesne profits, and performs the office of both. Bullock v. Wilson, 3 Porter, E. 382. 2 2 East, E. 190; 11 Ibid. 345. ^ Jackson dem. Loux v. Buel, 9 Johns. E. 298 ; Jackson dem. Saxtou v. May, 16 Ibid. 184 ; Black v. Hepburne, 2 Yeates, E. 331 ; Farley v. Craig, 3 Green, E. 192 ; 3 Bl. Com. 206 ; Challoner v. Thomas, Yely. 143 ; Adamson's Eject. 21. * Baker v. Eoe, Car. Kemp. Hard. 127; Newu. Holdmyfast, Stran. 54; Bull. N. P. 99. CH. XIV.] THE ACTION OF EJECTMENT. 487 mises -without any hindrance or molestation from the grantee," is such an interest in the land as may be recovered in ejectment.^ But the grant of a privilege to erect a machine, and building on land, without defining the place where they are to be erected, or the quantity of ground which is to be occupied, does not, without an actual entry and location, confer a right to this action.^ We need scarcely observe, that this action is the appropriate remedy for a landlord in all cases where the legal relation between himself and his tenant has terminated. Even in a case where a lease for ten years contained covenant of renewal for ten years longer, if the parties could agree on the rent, and the lessor covenanted, in case they did not so agree, to pay for improvements which the lessee should place upon the premises, and the lessee covenanted in the like case that at the end of the term, itpow the lessor's pay- ing for the improvements as aforesaid, he would peaceably sur- render the possession of the premises to the lessor and his assigns : the Court of Appeals in New York held, that the lessor's right to demand possession at the expiration of the term, was not qualified by the obligation to pay for the improvements, and, therefore, that his assignee (there being no renewal of the lease,) could recover in ejectment, although the improvements were not paid for; and that the words, " upon the lessor's paying," &c., did not constitute a condition precedent to the lessor's right of possession after the lease had expired.^ § 700. At common law, when a lease for years was granted to a tenant, and the right of possession transferred to him, the land- lord could not legally enter upon the land during the continuance of the term ; and was, consequently, without remedy to recover back his possession whilst the term lasted, although the tenant should neglect to pay rent, and otherwise disregard the conditions of his grant.^ This, upon a lease of any consequence, became a serious evil to landlords, for the tenant might be so indigent as to render an action of covenant upon the original lease altogether 1 Jackson dem. Loux v. Buel, supra. 2 Jackson dem. Saxton v. May, supra. 3 Tallman v. Coffin, 4 Comst. 134. * Jackson dem. Van Rensselaer v. Hogaboom, 11 Johns. E. 163. 488 LAW OF LANDLORD AND TENANT. [CH. XIV. useless, and the premises might be left -without a sufficient dis- tress to satisfy the rent. In order to obviate this difficulty, the practice was adopted to insert in the lease a proviso, declaring the lease forfeited if the rent remained unpaid for a certain time after it became due, or if any other covenant was broken by the lessee, and empowering the landlord to reenter and reoccupy his lands ; and without such a clause in the lease, as we have observed in treating of the subject of a breach of covenant or condition, he would not be entitled to reenter. We have already had occasion to notice the particulars necessary to be observed in making a demand of rent, in order to take advantage of a forfeiture for its non-payment. The provisions of the statute 4 Geo. II. c. 28, dis- pensing with the technicalities of the common-law demand, where six months' rent is in arrear, and there is no sufficient distress upon the premises, have been generally adopted in the United States, except in Pennsylvania, where the common law still pre- vails.^ § 701. In New York, if upon the trial of the cause it shall be proved, or upon judgment by default against the defendant it shall appear to the court, by affidavit, that the landlord had a right to commence the action, according to the provisions of this section of the statute, the plaintiff in the ejectment will have judgment to recover the possession of the demised premises and his costs, and the court will award execution therefor.^ A recent statute of New York has provided an additional mode of reentry, 1 McCormick v. Connell, 6 S. & E. 151. In "Vermont, ejectment lies for non- payment of rent without any previous demand, the tenant having a right to remain by paying the rent and costs at any time before judgment. Maidstone v. Stevens, 7 Verm. R. 487. 2 2 R. S. 505. The affidavit entitling the plaintiff to judgment, on the default here referred to, may be filed in the clerk's office, and no motion in court is neces- sary for the purpose. Livingston u. Conner, 7 Wend. R. 521. And though, by the statute, the service of the declaration is substituted for the formal demand of rent, which, at common law, must have been made upon the day when the forfeit- ure accrued, in case of non-payment, still it is not necessary that the day of the demise in the declaration should be the very day of the service ; it is enough if the day of the demise be after the rent became due ; for the title of the lessor must be taken to have accrued on the day when the forfeiture would have accrued at common law, by the non-payment of rent. Doe dem. Lawrence v. Shawcross, 3 B. & C. 752. CH. XIV.] THE ACTION OF EJECTMENT. 489 in cases where there may be sufficient goods on the premises to satisfy the rent, by substituting a fifteen days' notice of the land- lord's intention to reenter, instead of showing that there was no sufficient distress on the premises. This enactment seemed to follow, as a necessary consequence of abolishing distress for rent ; but we have already discussed this subject under the head of conditions, and need not, therefore, enlarge upon it in this place.^ ^ 702. Where the tenancy has been regularly determined, by lapse of time, or the death of the person upon whose life the estate was limited, a right of entry at once vests in the lessor, and no previous demand is necessary, as a preliminary to an action of ejectment. But in case of a tenancy at will, or from year to year, notice to quit must be first served upon the tenant in pos- session ; for it is only after the relation 6f landlord and tenant has ceased to exist that the withholding of the premises becomes unlawful, and the landlord's right of possession commences. We have seen, in a former part of our work, when and under what circumstances a notice to quit is necessary ; and it may be fur- ther observed that there are cases where, although no technical notice to quit is required, yet a reasonable demand of possession is necessary to complete the landlord'is right of action. Thus where a party is let into possession, pending a negotiation for a sale or lease, a demand of possession, or something equivalent, is neces- sary ; because, being let into possession, he becomes a tenant at will until such tenancy is determined.^ And if a tenant hold over after the termination of his lease, being in treaty for a new one ; 3 or a party be let into possession under a void or imperfect lease ; * in either case the entry, being lawful, the possession remains so until his right of possession is determined by a demand of possession.^ Any thing, however, that amounts to notice to him that his possession will be considered unlawful, appears to be equivalent to a demand of possession ; thus a threat to take mea- 1 Ante, § 300. 2 Eight V. Beard, 13 East, 210 ; Doe dem. Gray v. Stanton, 1 M. & W. 700. s Doe V. Stenuett, 2 Esp. E. 717. * Doe V. Edgar, 2 Bing. N. C. 503. 5 Denn v. Kawling3, 10 East, 261 ; Doe v. Jackson, 1 B. & C. 448. 490 LAW OF LANDLORD AND TENANT. [CH. XIV. sures to recover possession was held a sufficient demand.^ But a disclaimer of the plaintiff's title, by the party in possession, ren- ders a demand unnecessary ; ^ and a demand of the wife of the party on the premises is sufficient.^ § 703. "We have seen that, at common law, a mortgagee may eject a mortgagor who is in possession of the mortgaged premises, on non-payment of the mortgage-money upon the day stipulated, without giving notice to quit, or even making any demand of pos- session, although the Revised Statutes have abolished the action of ejectment in such case in New York. And where the pre- mises are demised to a third person, subsequent to the mortgage, the mortgagee may maintain ejectment, whether the demise were for a term of years, or from year to year, without giving any notice to quit, for the lessee is not tenant to the mortgagee.* But if the premises were demised previously to the mortgage, then the mortgagee, after giving notice o^ the mortgage to the tenant, and requiring him to pay rent to him, may maintain an action for use and occupation against such tenant, and treat him in every way as tenant, and as if himself were the assignee of the reversion.® Yet he has no other or greater rights than the mort- gagor had ; and, therefore, if the premises were demised from year to year, the mortgagee cannot maintain ejectment against the tenant, without first determining the tenancy by a notice to quit ; or if the premises are leased for a term of years previous to the mortgage, the mortgagee cannot maintain ejectment until 1 Doe V. Price, 9 Bing. 356 ; Ball v. Culllmore, 2 C. M. & R. 120. 2 Doe V. Thompson, 1 N. & P. 215. 5 Doe V. Street, 2 A. & Ej329. The statute 4 Geo. II. dispenses with a demand for rent in those cases only where there is no sufficient distress upon the premises, as well as six months' rent in arrear ; and it is still necessary for the lessor to comply with all the formalities of the common law, before he can proceed upon a clause of reentry for non-payment of rent, if a sufficient distress can be found. Doe dem. Poster v. Wandlass, 7 Term 117 ; Jackson w. Wyckoff, 5 Wend. R. 53 ; Jackson dem. Welden v. Harrison, 17 Johns. R. 66. But an insertion in the pro- viso, that the right of reentry shall accrue upon the rent being lawfully demanded, will not render a demand necessaiy if there be no sufficient distress ; for it is only stating in express words that which is in substance contained, from the principles of the common law, in every proviso of this nature. Doe dem. Sehofield v. Alex- ander, 2 M. & S. 525 ; Lndwell v. Newman, 6 Term R. 456. < Evans v. Elliot, 9 Ad. & El. 342 ; 1 Dong. 21 ; 3 East, 449. ■^ Moss V. Ga;llimore, 1 Doug. 279. CH. XIV.] THE ACTION OF EJECTMENT. 491 after the expiration of the term.^ If the action be brought against one who became tenant to the mortgagor since the mort- gage, the declaration should be upon the demise of the mortgagee onlj. But if against one who was tenant to the mortgagor before the mortgage, it may be on the demise of the mortgagee alone, or on the several demises of the mortgagor and mortgagee, but not on their joint demise.^ The defendant may avail himself of any defence which his lessor, the mortgagor, might set up, if he had appeared ; but he cannot set up the title of a third person. And where, in ejectment on the several demises of a mortgagor and mortgagee, the defendant offered to prove that seven or eight years back, and after the execution of the mortgage, he brought ejectment against the mortgagor, who was then in possession ; that the cause was referred to arbitration, and that the award was in favor of him, the present defendant, who thereupon entered under a writ of possession, and had occupied the pre- mises ever since ; it was held that these proceedings were not admissible in evidence against the mortgagee, although he was present at one of the meetings before the arbitrator, but took no part in the proceedings.^ And the mere fact of the mortgagee having received interest on his mortgage, down to a time subse- quent to the date of the demise in the declaration, is no recogni- tion of the right of the mortgagor to the possession, up to the time such interest was paid, so as to be a defence for a defendant who was tenant to the mortgagor.* § 704. With respect to the requisites of the complaint in an action of ejectment, we may observe that it is necessary to describe the nature of the property with particularity. Thus when com- mon is to be recovered, it must be described as appendant or appurtenant to certain land ; if a watercourse, as land covered with water.^ But although a plaintiff must truly describe the premises claimed, he is not bound to set forth the nature of the estate, nor the quantity of the interest claimed by him ; and he ' Doe V. Wharton, 8 T. E. 2. 2 Doe V. Adams, 3 Cr. & J. 232. = Doe V. Webber, 1 Ad. & El. U9. * Doe V. Cadwallader, 2 B. & Ad. 473. 6 Co. Lit. 4, a; Challoner v. Thomas, supra; 1 East, R. 441 ; 2 Str. 891. 492 LAW OF LANDLORD AND TENANT. [CH. XIV. has been allowed to recover an undivided share, although in his declaration he claimed the whole of the premises ; -^ or where he gave evidence of a tract of land, called in the patent Feltigraw's Fortune, which was also known by the name of Felty's Fortune, and so called in the declaration.^ If he describes the land in his declaration by courses and distances, without naming any monu- ment except the point begun at, and without reference to any survey, or to the lines of the lot, he can only recover according to the direction of the magnetic needle, at the time when the action was brought.^ And, as a general principle, the lines of a tract of land originally run by course and distance, without calls, must be confined to the courses and distances, and cannot be extended beyond them.* The ancient rule required the descrip- tion of the premises to be so certain, that the sheriff might know exactly of what to deliver possession ; and such is still the rule in some of the States.® But that rule was subsequently abolished in England ; and it is now their practice for the sheriff to deliver possession of the premises recovered, according to the directions of the claimant, who therein acts at his own peril.^ This relaxa- tion of the rule, however, opened the way to numerous and vexa- tious appHcations to correct errors of the sheriff in delivering pos- session ; in consequence of which, the Supreme Court of New York held the settled rule to be, that where a general verdict is given for the plaintiff, he is restricted to the taking possession of so much only as he gave evidence of his title to on the trial.''' 1 Harrison v. Stevens, 12 Wend. K. 170 ; Van Alstyne v. Spraker, 13 Ibid. 578. 2 Fowlie V. Kempis's Lessee, 5 Har. & Johns. 135. 3 Brooks V. Tyler, 2 Vern. R. 348. » Giraud's Lessee v. Hughes, 1 Gill & Johns. 249 ; Thomas v. Godfrey, 3 Ibid. 142. 5 Fenwicks v. Eloyd's Lessee, 1 Har. & Gill, 172 ; Clai-k v. Clark, 7 Vern. E. 190 ; Sawyer v. Fitts, 4 Stewart & Porter, E. 365 ; Bindorer v. Tindercomb, 2 Ld. Eay. 1470. s Cottingham v. Iving, Burr. 623, 630 ; Connor v. West, Burr. 2672. ' Seward v. Jackson, dem. Van Wyck, 8 Cow. E. 427. The Eevised Statutes of New York require that the premises shall be described with convenient cer- tainty, designating the number of the lot or township, if any, in which they are situated ; if none, stating tlie names of the last occupants of lands adjoining the same, if any; if there be none, stating the natural boundaries, if any ; and if none, describing such premises by metes and bounds, or in some other way, so that from such description possession of the premises claimed may be delivered, And if the CH. XIV.] THE ACTION OF EJECTMENT. 493 § 705. No proof of title is required in this action, since if a tenant has once recognized the title of the plaintiff, and treated him as his landlord, either by accepting a lease of him, paying rent to' him, or the like, he is precluded from showing that the plaintiff had no title at the time the lease was granted ; ^ for it is a general rule, founded on reasons of public policy, that a tenant shall nevesr be permitted to controvert his landlord's title.^ And this rule extends to a tenant holding over, as well as to an under- tenant, assignee, or any other person claiming under the lessor ; ^ and is applicable to every species of tenancy, whether for years, at will, or by sufferance.* As a tenant is not permitted to resist the recovery of his landlord, by virtue of an adverse title acquired duripg the lease, ^ if he takes a lease from a third person it is void, and cannot work an adverse possession against his land- lord ; for the possession of a tenant is always the possession of his landlord.^ Nor can an adverse claimant, who gets into possession of land by tampering with the tenant, resist the landlord's claim, where the tenant himself could not.'' But a lease unfairly ob- tained from a party in possession of the land, will not prevent a lessee from contesting the title of the lessor.^ Or where the land- lord threatens to turn the tenant off the land by force of arms, un- less he will consent to take a lease ; for the general rule is founded plaintiff claims any undivided share or interest in any premises, he shall state the same particulai'ly in the declaration. 2 R. S. 304, §§ 8, 9. 1 Townsend v. Davis, Forest, 120; 10 East, R. 158; Doe dem. Jackson v. Wil- kinson, 3 B. & C. 413 ; Berwick v. Thompson, 7 Term E. 488 ; Doe v. Pegge, 1 Term R. 768. 2 Jackson dem. Colton v. Harper, 5 "Wend. R. 246 ; Doe v. Lady Smythe, 4 M. & S. 147 ; Doe v. Baytrup, 3 A- & E. 188; S. C. 4 N. & M. 537; 3 P. & D. 197. 3 Jackson v. Stiles, 1 Cow. R. 575 ; Graham v. Moore, 4 Serg. & R. 467 ; Jack son V. Harpen, 4 Johns. R. 202 ; Lewis v, Willis, 1 Wils. E. 313 ; Richmond v. Thompson, 7 Term R. 488 ; Taylor u. Needham, 2 Taunt. E. 278; Wood v. Day, 1 B. Moore, 389 ; 1 P. & D. 183 ; D. & Ry. N. P. C. 1. * Love V. Dennis, 1 Harp. E. 70 ; Williams v. The Mayor of Annapolis, 6 Har. & Johns. 533 ; Trustees, &c. v. Williams, 9 Wend. R. 147. ^ Lessee of Galway v. Doyle, 2 Binney, 472 ; Graham v, Moore, 4 S. & E. 467 ; Bleecker v. Whitford, 2 Gaines, (N. Y.) E. 205. ^ Jackson v. Miller, 6 Cow. 751 ; Lecatt v. Stewart, 2 Stew. E. 474 ; Johnson v. Hinman, 10 Johns. R. 292. 7 Stewart v. Roderick, 4 Watts & Serg, 188 ; Galloway ». Ogle, 2 Binn. R. 468 ; 6 Ibid. 59 - 62. 8 Miller v. MoBrien, 14 S. & R. 682 ; Brown v. Dysinger, 1 Eawle, R. 408. 42 494 LAW OF LANDLORD AND TENANT. [CH. XIV. on the presumption of the lease being taken without fraud, force, or illegal behavior on the part of the lessor.-^ But a tenant at sufferance, who is turned out of possession by his landlord without any demand of possession, cannot maintain ejectment, although he may have an action for the trespass.^ § 706. Where the lease is hy deed, the tenant is estopped from disputing his landlord's title, who is only required to prove the counterpart of the lease on the trial.^ Where the lease is hy parol, it will not be necessary for him to give any evidence of his title anterior to the lease ; for a holding under the plaintiff, and the expiration of such tenancy, are the only things to be proved in ordinary cases.* In ejectment upon a clause of reentry, for non-payment of rent, against the assignee of the term, the lessor proved by the subscribing witness the execution of the counter- part of the lease ; and it was held sufficient, without producing the lease itself, or proving that notice had been given to the defendant to produce ifc.^ Even an acknowledgment by the defendant, that he went into possession under the plaintiff, is suffi- cient to entitle him to recover ; it being a simple matter of fact for the jury to determine, whether the defendant held under the plaintiff or not.^ But evidence of an agreement for a lease between the lessor in ejectment and the tenant, will not enable the plaintiff to recover possession, when there is no proof that any lease was ever executed, or rent paid, and the tenant claims to hold adversely.' The non-payment and non-demand of rent for twenty years will not raise a presumption that the landlord's title is extinguished, by a conveyance to the tenant or otherwise ; for the possession of the one not being inconsistent with the title of the other, a conveyance from such other will never be presumed, for the purpose of quieting the possession. Neither will the 1 Hamilton v. Marsden, 6 Binn. E. 45. '■ Doe dem. Harrison v. Murrell, 8 C. & P. 134-. ' Wood V. Day, supra; Willdns v. Wingate, 6 Term E. 62; Roe v. Davis, 7 East, E. 362. * Jaclcson v. McLeod, 12 Johns. E. 182. * Eoe V. Davis, 7 Easl, 363. ^ Jackson v. Dobbin, 3 J(jjms. E. 223, 499 ; Jackson v. Stewart, 6 Johns. E. 84 ; 7 Ibid. 157. ' Jackson v. Cody, 2 Johns, Cas. 223. CH. XIV.] THE ACTION OP EJECTMENT. 495 tenant be allowed to show that the landlord has acknowledged by parol that the title was in another.^ In an action by the lessee against the assignee of a lease, the plaintiff having proved the delivery of the original lease to the defendant, and the execution of the counterpart, the defendant put in the original lease, which was produced by a party to whom the defendant had assigned it, by deed reciting the lease ; it was held unnecessary for the plain- tiff to call the subscribing witness to prove the execution of the lease, because a party is never allowed to dispute the execution of a deed, after having taken, under such deed, all the interest it was calculated to give.^ § 707. There is a difference, however, whether the party has received possession from the lessor of the plaintiff, or has merely admitted his title by paying rent. In the former case, he is estopped from denying it, without any title at all ; ^ but in the latter, the defendant may rebut the presumption arising from such payment, by showing that he paid it under a mistake, or through misrepresentation.* Even an express agreement with one who claims to be landlord, does not preclude the tenant from . afterwards showing that the party claiming had no title ; and that the payment, or other acknowledgment, was induced by misrepre- sentation, or under mistake, the tenant not having been originally let into possession by the claimant.^ But he cannot show that his lessor had only an equitable title, or that his title was probably defective.^ Nor can the tenant of a mortgagor set up the title of the mortgagee, to an action brought by his lessor.'' Although he cannot show that his lessor had no title to the premises when the tenancy commenced, he may, however, show that the landlord 1 Jackson v. Davis, 5 Cow. E. 123. , 2 Burnett v. Lynch, 5 B. & C. 589. " Eennie v. Robinson, 1 Bing. 147 ; 10 Ibid. 549; 1 Bing. N. C. 45 ; Doe dem. Higginbotham v. Barton, 3 P. & D. 197. * Penner v. Duplock, 2 Bing. 10 ; Rogers v. Pitcher, 6 Taunt. 202 ; 1 Bing. 38 ; 3 Ibid. 474 ; 2 Bing. N. C. 572 ; 7 A. & E. 447 ; 3 P. & D. 197 ; 4 Scott, N. R. 796. 6 Claridge v. McKenzie, 4 Scott, N. E. 796 ; 3 Bing. E. 474 ; 4 Taunt. 720 ; 11 Ad. & El. 307 ; Doe v. Brown, 7 Ad. & El. 447. « Blake v. Foster, 8 Term R. 487; Driver v. Laurence, Black. E. 1259. ' Doe dem. Bristowe v. Pegge, 1 Term E. 758. 496 LAW OF LANDLORD AND TENANT. [CH. XIV. holds in violation of the laws of the State ,^ or that his interest has since expired, — as that he haS sold and conveyed the land, or the like, — and that, therefore, he has no right to bring the suit.^ So he may show that the lessor was only seized in right of his wife, for her life, and that she died before the covenant was broken ; ^ or that the lessor being executor, durante minori oetate, the infant has since come of age.* A defendant entering without title, and afterwards agreeing to purchase of the lessor of the plaintiff, was held to have recognized him as landlord, and was not permitted to dispute his title.^ But where a tenant was in possession under an adverse title, and applied to the lessor of the plaintiff to purchase, and requested to be considered as his tenant, he was permitted to show that the application was founded in mistake, or that the fee existed in himself, or out of the lessor.® >§> 708. Ac-cording to the New York statute, a tenant may be reinstated in his possession ; for at any time before judgment in the cause, the defendant may either tender to the landlord, or bring into court where the suit is pending, all the rent in arrear at the 1 Satterlee v. Matthewson, 13 Serg. & E. 133. ^ Moore v. Beaseley, 3 Ham. (Ohio) R. 294 ; Caufman v. The Congregation, &c. 6 Binn. 62 ; Dimond w. Enoch, Addis. E. 357 ; Marley v. Rogers, 5 Yerg. E. 217 ; Jackson v. Rowland, 6 Wend. K. 666 ; Binney v. Chipman, 5 Pick. R. 124 ; Wil- lison V. Watkins, 3 Peters, R. 43 ; Wells v. Mason, 4 Scam. (HI.) R. 85. 8 Blake v. Poster, 8 Term R. 487. * Andrews v. Pearce, 1 N. E. 158. ^ Jackson v. Whitford, 2 Caines, R. 2, 215 ; Jackson v. Vosburgh, 7 Johns. R. 188. ^ Jackson v. Cureder, 2 Johns. Cas. 353 ; Jackson v. Newton, 18 Johns. R. 355. A lease contained a proviso for reentry, " in case the rent, or any part, should be behind and unpaid by the space of fourteen days next after any or either of the said days of payment, on which the same ought to be paid, and no sufficient dis- tress being found in and upon the same premises, whereby to levy such rent;" at Lady-day the rent became due, and, ndt being paid, the landlord in May sent a a bailiff upon the premises, for the purpose of making a distress ; nothing being found on the premises, he brought an ejectment to recover possession. It was objected that, in order to establish a forfeiture, it ought to have been shown that there was no sufficient distress for fourteen days after the rent was due, as well as that the rent was in arrear, whereas it was only proved that there was no sufficient distress on one day in May, which might have been the case upon that one day only ; but the court thought this was prima, facie evidence to entitle the plaintiff to call upon the defendant to show that there was sufficient distress upon the pre- mises, within the terms of the proviso. Doe dem. Smelt v. Euchau, 15 East, E. 286. CH. XIV.] THE ACTION "OF EJECTMENT. 497 time of such payment, -with costs ; and all further proceedings in the cause will cease. And, at any time within six months after the landlord obtains possession under an execution upon such judgment, the lessee, his assigns, or personal representatives, may tender to the lessor, his representatives, or attorney, the rent due, with costs, and all further proceedings are then to cease ; and the premises will then be restored to the lessee, who. will hold the same without any new lease, and according to the terms of the original demise. But if the rent and costs remain unpaid for six months after the execution shall have been executed, the lessee, and all persons deriving title under him, shall be barred from all relief in law or equity, (except for error in the record or proceed- ings,) and the lessor or landlord will from thenceforth hold the premises discharged from the lease. But a mortgagee of the lease, or any part thereof, not in possession of the premises, who shall, within six months after the execution shall be executed, pay the rent and costs, and perform all the agreements, which ought to be performed by the first lessee, will not be affected by the recovery in ejectment.-' ■§. 709. A tenant may also be relieved in equity ; the same statute further enacts : " The lessee, or any person claiming any interest in such lease, may, within six months after execution exe- cuted on such judgment, file his bill in equity for relief, but not after that time, and if relieved in such court, he shall hold the premises without any new lease thereof, according to the terms of the original demise. But the complainant in such a bill shall not have an injunction against proceedings at law on such eject- ment, unless he shall bring into court the amount the lessor shall in his answer have sworn to be due and in arrear, over and above all just allowances, and also all the costs taxed in said suit, there to remain until the hearing of the cause, or to be paid to the les- sor, or good security, as the court may direct. If the lessor shall have entered into the actual possession of the demised pre- mises, the court may direct, that so much, and no more, as he shall really have made of the said premises during the possession 1 2 E. S. 505, ^ 28-32 i and see 3 Taunt. R. 402, as to the right of a mort- gagee of the lease to redeem. 42* 498 LAW OS LANDLORD AND TENANT. [CH. XIV. thereof, or as might, -without -wilful neglect, have made of them, be deducted from the amount of the rent in arrear to such lessor, and the costs of the ejectment, and the complainant shall be required to pay the balance before he shall be restored to the possession of the premises." ^ § 710. After a judgment in ejectment, the plaintiff is entitled to recover the mesne profits of the land, during the time he was excluded from the possession, by the -wrongful act of the defend- ant. He may, however, maintain such an action, -where he obtains possession -without suit, or without prosecuting an eject- ment-suit to judgment ; even though it should appear that he had, before the ouster, entered into an executory contract for a sale of the premises, and that the vendee was in possession at the time of the ouster.^ The plaintiff's title has relation back to the time when his right of entry first accrued, and he is considered for all purposes of the recovery, to have been in possession from that time. The possession of any one who holds him out during that time, is consequently -wrongful, and, by the common law, he may bring an action of trespass to recover damages for the mesne pro- fits.^ These profits, as they are termed, prior to the day of the demise laid in the declaration, may also be recovered in an action for use and occupation, if the plaintiff thinks proper to waive the tort ;* but use and occupation will not lie, for rents and profits accruing subsequently to that day, as it implies a contract, and the plaintiff, having in the ejectment treated the defendant as a trespasser, at a period subsequent to the demise, is estopped from also treating him as a tenant, and bringing an action for use and occupation, the one position being manifestly inconsistent with the other.^ And when a tenant holds over after the expiration of the landlord's notice to quit, the landlord, after a recovery in eject- ment, may waive his action for mesne profits, and maintain debt under the statute, for double the yearly value of the premises, 1 2 E. S. 505, 4§ 33-38. " Leland v. Tansey,' 6 Hill, (N. Y.) R. 328. s Dewey v. Osburn, 4 Cow. K. 329 ; 1 Sannd. 277, a. * Van Alen v. Rogers, 1 JoBns. Cas. 281 ; Goodtitle v. North, Doug. 584; Doe dem. Cheney v. Batten, Cowp. 243. 5 Birch V. Wright, 1 Term E. 378, 387. CH. XIV.] THE ACTION OF EJECTMENT. 499 during the time the tenant holds over ; for double value is given by -way of penalty, and not as rent.^ § 711. The action lies against any party in actual possession of the land ; but where an under-tenant holds over, after the expira- tion of the lessee's interest, the latter is not liable for the mesne profits, unless he has made himself a party to the trespass, by some act,, such as by receiving rent from the under-tenant, for the time during which he held over, or the like.^ The defendant may plead in bar of the claim, any matters of defence, that would be available in an action of debt for rent ; and, in general, any thing, but such as was, or might have been, controverted in the action of ejectment ; as, for instance, that he was not in possession of the premises, or, that he only remained in possession a certain time, or the like.^ He may also avail himself of the statute of limita- tions ;* but a discharge under a bankrupt or insolvent law, is no bar, as the action is for unliquidated damages.^ The defendant may also deduct any ground-rent that may have been paid by him ; and, generally, may set oif the value of such permanent improvements made by him on the premises, as he was authorized to make, to the amount of the plaintiff's claim. ^ 1 Timmins u. Kowlinson, Burr. 1603 ; 1 N. Y. R. S. 745, § 10. A recovery in trespass for mesne profits, is only for the use and occupation of land, and does not bar an action of trespass quare clausum fre(jit, for injuries done to the premises during the same period. Gill v. Cole, 1 Har. & Johns. R. 403. 2 Chirac v. Eeinicker, H Wheat. E. 280 ; Burn v. Kichardson, 4 Taunt. R. 720 ; Roe V. Wigg, 2 New E. 330 ; Doe v. Harlow, 12 A. &. E. 40. 2 Jackson v. Randall, 11 Johns. E. 405 ; Jackson v. Combs, 7 Cow. R. 36 ; Lan- gendyck v. Burhans, 11 Johns. E. 461 ; 2 B. & A. 662 ; 2 C. M. &. E. 323 ; 2 Burr. 668. " Hare v. Furey, 3 Yeates, 13 ; Bui. N. P. 88 ; 2 E. S. 311, § 50. In trespass for mesne profits after a recovery in ejectment, the plaintifi^ cannot give evidence of the annual value of the premises beyond the time of the lease mentioned in the declaration. Shotwell v. Boehm, 1 Dal. E. 172. ^ Lloyd V. Peel, 2 B. & A. 407 ; Goodtitle v. North, 2 Doug. 584. 8 Jackson v. Loomis, 4 Cow. E. 168; Mariru. Simple, Addis. E. 215 ; 2 N. Y. E. S. 311, 5 49. But if the tenant has made improvements on the land, under a contract with the owner, he will not he allowed for them in this action, when brought by a devisee, but must seek his compensation from the personal represent- atives of the devisor. Van Alen v. Rogers, 1 Johns. Cas. 281 ; See also Hytton v. Brown, 2 Wash. 0. C E. 165. 500 LAW OF LANDLORD AND TENANT. [CH. XIV. § 712. As tlie action for mesne profits is an action of trespass, it cannot be maintained against executors and administrators, for the profits accruing during 'the lifetime of the testator or intes- tate ; 1 nor will a court of equity interfere to enforce the payment of them against personal representatives, when the lessor has been deprived of his legal remedy by the mere accident of the defendant's death. But where the lessor was delayed from reco- vering in ejectment by a rule of the court of law, and by an injunction at the instance of the defendant, who ultimately failed both at law and equity, the court decreed an account of the pro- fits against the defendant's executors.^ The issue, when joined, is to be tried as in other cases, and if found for the plaintiff, the jury will assess the damages, at the amount of the mesne profits received by the defendant since he entered into possession. The plaintiff will be required to establish, and the defendant may con- trovert, the time when the defendant entered into possession ; the time during which he enjoyed the profits, and the value thereof; ejectment will not, according to the laws of New York, be evi- dence of such time.^ But previous to this statute, the record of the recovery in ejectment, was conclusive evidence of title in the lessor of the plaintiff from the time of the demise laid in the eject- ment, and the defendant could not, in an action for mesne profits, show title in another after that time.* Except where the judg- ment in ejectment was obtained by default, in which case an entry must be proved.^ Section II. SummcCry Proceedings to Recover Possession. § 713. The common-law remedy, by ejectment, for the reco- very of the possession of demised premises from its slow and 1 The statute of New York furnishes an exception to this rule. 2 R. S. 51. 2 Poulteney v. Warren, 6 Tes. Jr. E. 73. » 2R. S. 3H,§§47, 48. * Dewey v. Osburn, 4 Cow. R. 329 ; 7 Ibid. 36 ; Marshall, v. Dnpey, 4 Marsh. 388, N. S. s Lessee of Brown v. Galloway, 1 Pet. E. (Cir. Ct.) 239 ; and see Jackson dem. Church V. Hills, 8 Cow. E. 290. CH. XIV.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 501 measured progress, in a great majority of cases, affords but an inadequate security to a landlord ; while the technical delays thereby thrown in the way, prove to be of little or no utility to an honest tenant, but are very apt to be resorted to by an unprinci- pled and irresponsible one, to enable him to withhold possession, and bid defiance to his landlord for an indefinite length of time. For the purpose of remedying this evil, the legislatures of most of the States, following the English statute 11 Geo. II. c. 19, have provided a summary proceeding, by which the landlord may speedily recover possession of his property, although the lease may not contain a clause of reentry, in cases where a tenant aban- dons the premises without surrendering the lease, leaving rent in arrear, continues in possession after the expiration of the lease, or has become unable or unwilling to recompense the landlord for the use of the premises. The statute, however, is intended to apply only to these cases ; and the expiration of the term men- tioned in it, means only an expiration by lapse of time, and not where the term has expired by some technical forfeiture ; in which latter case, a landlord cannot proceed under the statute, but must resort to his action of ejectment.^ § 714. With respect to a vacant possession, we may observe, that at common law, a lessor has strictly no right to reenter upon the land during the term, even if the tenant has deserted the pre- mises.'^ With a view of obviating this difficulty, the New York statute provides, that if any tenant being in arrear for rent, shall desert the demised premises, and leave the same unoccupied and uncultivated, without any goods thereon subject to distress to satisfy the arrears of rent, any justice of the peace of the county may, at the request of the landlord, and upon due proof that the premises have been so deserted, leaving such rent in arrear, and no goods thereon subject to distress, go upon and view the said premises ; and upon being satisfied upon such view that the pre- mises have been so deserted, he shall affix a notice in writing upon a conspicuous part of the premises, requiring the tenant to appear and pay the rent due, at some time in the said notice spe- 1 Oakley v. Schoonmaker, 15 Wend. E. 22C. 2 Brown v. Kite, 2 Overt. E. 233. 502 LAW OF LANDLOED AND TENANT. [CH. XIV. cified, not less than five, nor more than twenty days after the date thereof. At the time specified in such notice, the justice shall again view the premises ; if the tenant appear and deny that any rent is due to the landlord, all proceedings shall cease. If, upon such second view, the tenant, or some one for him, shall not appear and pay the rent in arrear, and there shall not be sufiicient distress on the premises to satisfy such rent, then such justice may put the landlord into possession of the demised premises ; and any demise of the said premises to such tenant, shall from thenceforth become void.'' A landlord, to obtain possession of demised premises for arrears of rent, where the premises are not actually occupied, and a declaration in ejectment cannot be served upon the lessee or his assignee, or the residence of the latter is not known, so that the service cannot be made there, must proceed as at common law, or adopt the summary proceedings provided by this statute ; and he cannot proceed by afiixing a declaration in ejectment in a conspicuous place on the demised premises, and then asking the court for a rule to plead. ^ § 715. Proceedings as upon a vacant possession, can only be taken where the premises ' are actually abandoned by the former occupant ; if he retains virtual possession, though he does not occupy personally, the landlord must proceed in the regular way pointed out in the statute.^ What amounts to a vacant possession is sometimes difficult to determine. At common law, the mere fact of a tenant's not living upon the premises, would not have 1 2 E. S. 512, §5 24 - 27 ; 4 Geo. II. c. 28. An appeal from the proceedings of any justice in such case, may be made by the tenant at any time within three months after such possession delivered, to tlie court of common pleas of the county, by serving notice in writing thereof upon such justice, and by giving security, to be approved by such justice, to pay the landlord all costs of such appeal which may be adjudged against such tenant; and thereupon such justice shall return the proceedings had before him to the said court, within'ten days after such notice and security given, and shall give notice to the landlord of such appeal. The Court of Common Pleas shall examine the proceedings, and hear the proofs and allegations of the parties in a summary way ; and may order restitution to be made to such tenant, witU costs to be paid by the landlord ; or in case of afBrming such proceed- ings, may award costs against the tenant. 2 Stratton v. Lord, 22 Wend. R. 611. Overruling the case of Evans v. Moran, 12 "Wend. 180. 8 2 Dowl. 399-431 ; 3 Ibid. 691 ; 4 Ibid. 173. CH. XIV.] SUMMARY PKOCBEDINGS TO RECOVER POSSESSION. 503 amounted to a desertion, provided he still occupied them by his goods. Thus, where a publican removed to another house, and left beer in the cellar ; or, where hay was left in a barn ; or it was not known where the tenant lived ; or any person was left on the premises to take care of them, the possession could not be said to be vacant.^ But where -a party abandoned the house with his goods, and locked it up, and it was not known where he had gone, it was held to be a clear case of vacant possession.^ It was so held, also, in another case, where the tenant ceased to reside on the premises for some months, and left them without any furniture, or sufficient property to answer the year's rent ; although the land- lord knew where the tenant was, and a servant of the tenant's was found upon the premises when the justice went to view them.^ § 716. The statute only gave the remedy in case the tenant deserts the premises, leaving no sufficient distress thereon. But where the premises are entirely abandoned, it is unnecessary for the claimant, who has the right of possession, to proceed under any legal process ; for he may enter upon the premises unaided by the law, if he can find an opportunity of doing so without using force ; and if trespass should be brought against him, he may justify the entry under his title.* In one case, the tenant having absconded while rent was in arrear, the landlord entered- into the premises, and, while in the enjoyment of them, brought an action of ejectment under the statute, in order to bar the tenant's right, as if the premises had not been vacant. It was held, on a motion to set aside the judgment and execution for irregularity, that in the eye of the law the premises were vacant, and the whole proceeding was an absolute nullity.^ But in an action of ejectment for lands belonging to the HollandLand Company, which had been surveyed, and buildings erected on some part of the tract by the company, and where the proceedings were as for a vacant possession ; the. court made a rule to admit the company 1 Savage v. Dent, 2 Str. 1064 ; Doe dem. Atkins v. Eoe, 2 Chit. 179. 2 Doe dem. Darlington v. Cock, 4 B. & C. 259. 3 Ex parte Pillow, 1 B. & A. 369. " Taunton v. Costar, 7 Term E. 431 ; Taylor v. Cole, 3 Term E. 292 ; Bogers V. Pitcher, 6 Taunt. 202; Turner v. Meymott, 1 Bing. 158. ^ Jackson v. Hakes, 2 Caines, R. 335. 504 LAW OF LANDLORD AND TENANT. [CH. XIV. in the place of tlie defendant, observing that the strict principles applicable to proceedings in ejectment, as for a vacant possession in England, cannot, without manifest hardship and inconvenience, be applied to the unsettled lands of this country.^ § 717. The statute next proceeds to point out the various methods by which the tenant may be removed from the premises, in case he holds over after the end of his term ; or whenever rent is due, and there are no goods on the premises to satisfy the rent ; or the tenant has taken the benefit of the insolvent law ; or remains in possession after the premises have been sold under an execution.^ " Any tenant or lessee at will, or at sufierance, or for part of a year, or for one or more years, of any houses, lands, or tenements, and the assigns, under-tenants, or legal representa- tives of such tenant or lessee, may be removed from such pre- mises by any judge of the county courts of the county, or by any mayor or recorder of the city, where such premises are situated ; or if in the city of New York, by the mayor, recorder, any one of the aldermen, any special justice, any justice of the marine court, or any one of the assistant justices of the said city, in the manner hereafter prescribed, in the following cases : 1. Where such per- son shall hold over, and continue in possession of the demised premises, or any part thereof, after the expiration of his term, without the permission of the landlord ; 2. Where such person shall hold over, without such permission as aforesaid, after any default in the payment of rent, pursuant to the agreement under which such premises are held, and satisfaction for such rent ean- not be obtained by distress of any goods, and a demand for such rent shall have been made, or three days' notice in writing, requiring the payment of such reni, or the possession of the pre- mises, shall have been served by the persons entitled to such rent on the person owing the same, in the manner prescribed for the service of the summons in the thirty-second section of this title ; 3. Where the tenant or lessee of a term of three years, or less, shall have taken the benefit of any insolvent act, or been dis- 1 Saltonstall v. White, 1 Johns. Cas. 221 ; Wood v. Wood, 9 Johns. R. 257. 2 Similar prorisions exist in the statutes of many other States; and in the Bri- tish statute 1 & 2 Vict. c. 74 ; 3 Kent, Com. 480, n. CH. XIV.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 505 charged under any act for the relief of his person from imprison- ment ; 4. Where any person shall hold over, and continue in the possession of any real estate which shall have been sold by virtue of any execution against such person, after a title under such sale shall have been perfected." ^ <^ 718. The statute requires one month's notice in writing to be given to a tenant at will, or by sufferance, before an applica- tion can be made for process to remove him, under the first sub- division of this section.^ But where a tenant for a year holds over after the expiration of his term, without the landlord's per- mission, he is not entitled to the month's notice, not being consi- dered a tenant at sufferance within the meaning of the statute. And to entitle him to notice, the holding over must be continued for such length of time after the expiration of the term, as to authorize the implication of an assent on the part of the landlord to such continuance. But where the landlord waited three months and twelve days before instituting proceedings, he was held not to be chargeable with laches, especially since it appeared he had attempted to obtain possession without recourse to coercive § 719. The jurisdiction of the assistant justices of the city of New York, under this section, extends over the whole city, and is not limited to the wards for which they were appointed ; and it is immaterial where the parties reside, or the premises are situated.* But a judge who issues a warrant to dispossess a per- son, without having obtained jurisdiction of the matter, is a tres- passer, and liable to an action, although the person dispossessed came illegally into possession.^ And, as a general rule, where the subject-matter of a suit is within the jurisdiction of the court, but the want of jurisdiction is to the person or place, unless such defect appears on the process to the officer who exe- cutes it he is not a trespasser ; but where the subject-matter is 1 2 E. S. 513, § 28. 2 3 Kent, Com. 481 ; ante, p. 45. " Eowan v. Lyttle, 11 Wend. 616. ' Eoach V. Cosine, 9 Wend. 227. 6 Evertson v. Sutton, 5 Wend. E. 281. 43 506 LAW OP LANDLORD AND TENANT. [CH. XIV. not within the jurisdiction, every thing done is absolutely void, and the officer a trespasser.^ § 720. This statute applies only to cases where the conven- tional relation of landlord and tenant subsists, and not where it is created by operation of law.^ Therefore a mortgagor cannot be turned out of possession of the mortgaged premises under this statute.^ Or where the tenant, instead of a reservation of certain rent, agrees to work a farm upon shares, he is not a tenant within the meaning of this statute, and cannot be removed for a non- compliance with the terms of his lease. Nor can such proceed- ings be instituted on the ground of the expiration of the term by forfeiture, for the expiration of the term mentioned in the statute means an expiration by lapse of time.* But where a tenancy at will exists, and the landlord's interest in the estate has been sold under an execution, the tenancy is not terminated, and the pur- chaser under the sheriff may proceed to obtain possession under this statute .5 The owner of land, however, who agrees that his creditor may occupy a dwelling-house belonging to him for the term of one year, and until he pays a mortgage which the cre- ditor holds against him, may proceed under this statute to obtain possession, on payment of the money, after the first year, and on the refusal of the creditor to yield up the possession.^ And we may here also observe, that after distraining for rent in arrear, though the distress be insufficient to satisfy the rent, a landlord is not at liberty to institute proceedings under this statute, for the removal of the tenant from the demised premises ; for when a for- feiture has accrued upon a clause of reentry, for rent in arrear, the forfeiture will be waived, if the landlord afterwards does any thing which amounts to an acknowledgment of a subsisting tenancy.^ § 721. The New York statute requires the landlord or lessor. 1 10 Co. R. 75 ; Hardr. 480. 2 Evertson v. Sutton, supra. " Roach V. Cosine, supra. * Oakley v. Schoonmaker, 15 Wend. R. 226. 5 Birdsall v. Phillips, 17 Wend. 464. e Hunt V. Comstock, 15 Wend. R. 665. ' Wilder v. Ewbank, 21 Wend. 587 ; Jackson v. Slielden, 5 Cow. R. 428. CH. XIV.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 507 his legal representatives, agents, or assigns, to make oath in writ- ing of the facts, which, according to the preceding section, author- ize the removal of the tenant, describing therein the premises claimed, and may present the same to one of the officers in the last section specified. The facts, and not the evidence of the facts, should be set out in this affidavit. Accordingly, where an affidavit stated that B. demised the premises and afterwards died, leaving his widow, who, after B.'s death, became legally possessed of the lease, and entitled to receive the accruing rents, " and is noiv entitled to possession of premises," and further stated that the tenant, and those claiming under him, had, by paying rent, recognized A.'s right ; it was held that the affidavit was insuffi- cient, because the first part of the affidavit did not swear to facts, but should have shown how B. became possessed, either as heir or devisee, or the like ; and that the second part of the affidavit was bad, because it was not a statement of facts but of evidence.^ The affidavit should name the person of whom the rent is de- manded; though if defective in this particular, but state the demand to have been made upon the land, it is sufficient to give jurisdiction, and cannot be objected to collaterally. The remedy, if any, is by certiorari.^ When the oath is made by an agent, it is sufficient if probable want of permission to hold over appears.* But where proceedings are had, and a verdict found for^the tenant, the original affidavit cannot be used as the foundation of a new proceeding under this act ; and, when it was so used, and the tenant turned out of possession, it was held that the proceed- ings were coram non y'udice and void, and that trespass lay against both landlord and judge.* On receiving the affidavit, the officer issues his summons, describing the premises of which pos- session is claimed, and requiring any person in possession of the said premises, or claiming the possession thereof, forthwith to remove from the same ; or to show cause before him on the same day, or within such time as shall appear reasonable, — not less than three, nor more than five days, — why possession of the said premises should not be delivered to such applicant. The sum- 1 Hill V. Stocking, 6 Hill, 317, per Bronson, J. '- Eogers v. Lynde, 14 Wend. 172. ^ Simpson v. Ehinelander, 19 Wend. 103. • McCoy V. Hyde, 8 Cow. E. 68. 508 LAW OP LANDLORD AND TENANT. [CH. XIV. mens should be directed to the person in actual occupation of the premises, and who is intended to be removed, hy name. And where a summons was directed to W., (the original tenant,) or any other person claiming possession of the premises, and, after reciting the affidavit, proceeded thus: — " Therefore, in the name of the people, you, and those claiming under you, are hereby summoned," &c. ; and the constable who served the summons made affidavit of service, by giving personal notice of it to W, ; also by leaving a copy with S.^who claims possession of a portion of the premises ; and it appeared that H. was in possession of a part of the premises of which W. was not ; it was held that the proceedings were void, for want of jurisdiction.^ Previous to issuing such summons, in the case of a tenancy at will or at suffer- ance, the magistrate must be satisfied, by affidavit, that such tenancy has been terminated, by giving notice in the manner pre- scribed by law. And if application be made for such summons, to be served on any person holding over real estate which shall have been sold on execution, the magistrate must in like manner be satisfied that a demand of the possession of such premises has been made.^ § 722. Such summons shall be served, either : 1. By deliver- ing to the tenant, to whom it shall be directed, a true copy thereof, and at the same time showing him the original ; or, 2. If such tenant be absent from his last or usual place of residence, by leaving a copy thereof at such place, with some person of mature age residing on the premises. If, at the time appointed in the summons, no sufficient cause be shown to the contrary, and due proof of the service of the summons be made to such magis- trate, he shall thereupon issue his warrant to the sheriff of the county, or to any constable or marshal of the city or town where the premises are situated, commanding him to remove all persons from the said premises, and to put the said applicant to such magistrate into the full possession thereof.^ There is not sufficient proof of the service of the summons, without showing the tenant's ' Hillw. Stocking, 6 Hill, 317. 2 2R. S. 513, § 30, 31. ^ Ibid. 514, 5 32, 33. CH. XIV.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 509 absence from his last or usual place of residence, or that the copy was left there with a person of mature age.^ § 723. If the tenant is disposed to contest the landlord's pro- ceedings upon the return of the summons, and denies his right to take possession in this summary manner, the statute reserves to him the privilege of having his case tried by a jury. Any person in possession of such demised premises, and any person claiming possession thereof, may, at the time appointed in such summons for showing cause, or before, file an affidavit with the magistrate who issued the same, denying the facts upon which the said sum- mons was issued, or any of those facts, and the matters thus con- troverted shall be tried by a jury. But a tenant proceeded against, under this statute, cannot set up title to the premises acquired by him since the taking of his lease, in bar of the land- lord's claim to be put in possession.^ In order to form such jury, the magistrate with whom such affidavit shall be filed shall nominate eighteen reputable persons, qualified as jurors in courts of record ; and shall issue his precept, directed to the sheriff or one of the constables of the county, or any constable or marshal of the city or town, commanding him to summon the person so nominated to appear before such magistrate, at such time and place as he shall therein appoint, not more than three days from the date thereof, for the purpose of trying the said matters.^ It is erroneous to summon twenty, instead of eighteen jurors, under this section, for summary proceedings are open to all technical objections, unless the statute under which they are had requires that it shall be liberally construed by the court.* Twelve of the persons so summoned shall be balloted for and drawn, in like manner as jurors in courts of record ; and shall be sworn by such magistrate well and truly to hear, try, and determine the matters in difference between the parties. After hearing the allegations and proof of the parties, the said jury shall be kept together until they agree on their verdict, by the sheriff or one of his deputies, or a constable, or by some proper person appointed by the magis- 1 Cameron v. McDonald, 1 Hill, R. 512. 2 Rowan v. Lyttle, 11 Wend. R. 616. 8 2 R. S. 514, § 35. * Farrington v. Morgan, 20 Wend. R. 207. 43* 510 LAW OF LANDLORD AND TENANT. [CH. XIV. trate for that purpose, who shall be sworn to keep such jury as is usual in like cases in courts of record. If such jury cannot agree, after being kept together for such time as such magistrate shall deem reasonable, he may discharge and nominate a new jury, and issue a new precept in manner aforesaid. § 724. Any magistrate before whom such application may be pending, may, upon the request of either party, adjourn the hear- ing of such application, for the purpose of enabling such party to procure his witnesses, whenever it shall appear to be necessary, but such adjournment shall in no case exceed ten days. Any magistrate before whom such application may be pending, may, at the request of either party, issue his subpoena, requiring any per- son to appear and testify before such magistrate, or before the jury, touching the matters herein directed to be heard by them ; and every person who, being served with such subpoena, shall, without reasonable cause, refuse or neglect to appear, or appear- ing, shall refuse to answer upon oath touching the matters afore- said, shall be subject to the proceedings and penalties provided by law in similar cases. Provision is also made by the statute for one or more adjournments, and for the issuing of subpoenas, to enable the parties, or either of them, to procure the attendance of witnesses, in the prosecution or defence of the cause. If the magistrate improperly refuse to adjourn, it seems the Supreme Court will not take notice of such refusal, on certiorari.'^ After the litigation has terminated, and the oiBcer has received the war- rant authorizing him to put the landlord in possession of the pre- mises, he proceeds to execute the same ; the statute directing the officer to whom such warrant for delivering possession shall be directed and delivered, in either of the cases aforesaid, to execute the same according to the tenor thereof. " If the verdict of any jury so summoned, shall be in favor of the lessor or landlord, or other person claiming the possession of the premises, the magis- trate shall issue his warrant to the sheriff of the county, or to the marshal, or constable of the city or town in which the premises are situated, commanding such officer to put such landlord, lessor, Wilson V. Green, 20 Wend. R. 180. CH. XIV.] SUMMARY PEOCEEDINGS TO EBCOVEE POSSESSION. 511 or other person, into possession of the premises, as hereinbefore directed." ^ § 725. The issuing of the warrant for the removal of the tenant, operates as a dissolution of the relation of landlord and tenant. The statute declares : " Whenever a warrant shall be issued as aforesaid, by any such magistrate, for the remoyal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled."^ This section, however, is not intended to pre- vent a landlord from collecting the same rent from the tenant for the non-payment of which he was dispossessed. Its operation is not to annul the lease from its date, but only from the time of the default for which the warrant issued. Compensation for the use of the premises by the tenant intermediate the default and the time he is dispossessed, cannot, however, be recovered by an action on the lease ; but the landlord's only remedy for this is, by an action of trespass, in which he recovers a sum proportionate to the rent, as damages for the wrongful detention.^ § 726. In either of the cases contemplated by the statute, except where the tenant holds over after the expiration of his term, provision is made for a stay of all proceedings against the tenant, upon his complying with the requisition of the law, adapted to his particular case. And the proceedings will be stayed, in any stage of the cause, upon the terms mentioned in the three following sec- tions of the statute. The issuing of such warrant of removal shall be stayed in the case of a proceeding for the non-payment of rent, if the person owing such rent shall, before such warrant be actu- ally issued, pay the rent due, and all the costs and charges of the proceedings, or give such security as shall be satisfactory to the said magistrate, to the person entitled to such rent, for the pay- ment thereof, and the costs aforesaid, in ten days. When the application to a magistrate is founded on the fact that the tenant. 1 2E. S. 514, ^ 36-39. 2 2R. S. 515, ^Ml-43. 8 Hinsdale v. White, 6 Hill, R. 507 ; Rubicun v. Williams, 1 Ashm. 235. 512 LAW OP LANDLOED AND TENANT. [CH. XIV. or lessee has taken the benefit of any insolvent act, or been dis- charged under any act for the relief of his person from imprison- ment, the proceedings shall be stayed, if at any time before issu- ing the warrant for removal, the tenant or lessee, or his assignee, shall pay the costs of such proceedings as have been had, and give such security to the person entitled to the rent, for the pay- ment thereof, as it shall become due, as shall be satisfactory to the magistrate. When such application is founded on an alleged sale by execution, of the premises occupied by the defendant in such execution, the proceedings shall be stayed, if at any time before issuing the warrant of removal, the occupant shall, 1. Pay the costs of such proceedings. 2. File with the officer before whom the application is pending, an affidavit that he claims the possession of such premises by virtue of some title or right acquired after such premises were sold, or as guardian or trustee for any other ; and, 3. Execute a bond to the applicant for such warrant, in such penalty, and with such sureties, as the magistrate shall approve, conditioned to pay the costs which may be recovered against him in any ejectment that may be brought by such appli- cant within six months, for the recovery of the possession of such premises ; and to pay the value of the use and occupation of such premises, from the date of such bond, to the time such applicant shall obtain possession of the same by virtue of a recovery in such action of ejectment ; and also conditioned not to commit any waste or injury to such premises during his occupation thereof. § 727. The Supreme Court may award a certiorari for the purpose of examining any adjudication made on any application hereby authorized ; but the proceedings shall not be stayed or suspended by such writ of certiorari, or by any other writ or order of any court or officer.^ In the return to the certiorari, it must affirmatively appear that the officer to whom the precept for that purpose was directed, was commanded to summon eighteen repu- table persons qualified to serve as jurors in courts of record, who had been nominated by the magistrate before whom the proceed- ings were had, or the proceedings will be quashed. It is not enough if the return states that the officer was commanded to 1 2R. S. 515, U 44-47. CH. XIV.] SUMMARY PROCEEDINGS TO RECOVER POSSESSION. 513 summon a jury as directed hy the statute?- Upon such certiorari, the Supreme Court have power to examine into the correctness of all the decisions of the officer before whom the proceedings were had, upon questions of law, and also to require the return of such parts of the proceedings as are material to an examination of the case upon its merits. The authority of the court in such case, is not limited to questions of jurisdiction and regularity.^ When- ever any such proceedings brought before the Supreme Court by certiorari, shall be reversed or quashed, the court may award restitution to the party injured, with costs, and may make such orders and rules, and issue such process, as may be necessary to carry their judgment into effect. In all cases of an application pursuant to the provisions of this article, the prevailing party shall recover costs, and may maintain an action for the recovery thereof, and if the proceedings shall be reversed or quashed by the Supreme Court, the tenant or lessee may recover against the person making application for such removal, any damages he may have sustained by reason of such proceeding, with costs, in an action on the case. >5> 728. The statute has further guarded the rights of both par- ties, by providing that nothing contained in that title shall be con- strued to impair the rights of any landlord or lessor, or of any tenant, in any case not therein provided for.^ By the law of 12th April, 1842, also, in proceedings under the second subdivision of the 28th section of the above statute, if the unexpired term of the lease exceeds five years at the time of issuing the warrant, the lessee, his assigns or personal representatives, may, at any time, within one year after possession of the demised premises shall have been delivered to the landlord, pay, or tender to the lessor, his representatives, or attorney, or to the officer who issued the warrant, all rent in arrear to the time of payment or tender, and all costs incurred ; and in such case the premises shall be restored to the lessee, who shall hold and enjoy the same without any new lease thereof, according to the terms of the original demise ; and 1 Farringtou v. Morgan, 20 Wend. E. 207. 2 Anderson v. Prindle, 23 Wend. R. 616. 3 2R.S.§§ 48-51. 514 LAW OF LANDLOED AND TENANT. [CH. XIV. any mortgagee of the lessee, or any part thereof, who shall not be in possession of the premises, or any judgment creditor of the les- see, who shall, within a year after the execution of the warrant, pay all rent in arrear, all costs and charges as aforesaid, and per- form all the agreements of the first lessee, shall not be affected by such recovery ; and such judgment creditor may file a suggestion of such payment upon the record, and issue execution for the amount of the original judgment and of such payment. CH. XV.] THE tenant's eemedtbs. 515 CHAPTER XV. the tenant's remedies. Section I. Actions for a Wrongful or Irregular Distress. § 729. We now proceed to speak of the remedies, which more appropriately belong to the tenant, and by means of which the law redresses such wrongs as he may suffer, at the hands of an unjust or inconsiderate landlord. For, if a landlord takes a wrongful distress, that is, a distress where no rent is due, or not so much as is distrained for ; or if, though rent be due at the time of the seizure, a tender of the amount is made before the goods are impounded ; or, if he takes goods which are not by law sub- ject to distress ; or, if he distrains irregularly, that is, where the distress itself is legal, but some of the proceedings thereon are not in conformity with the statutes by which they are regulated ; or, if he takes things privileged from distress, as by severing fix- tures from the freehold, or take beasts of the plough, while other things remain on the premises sufficient to satisfy the distress, the tenant may either rescue them before they are impounded, or maintain an action against the landlord suited to the exigency of the case, and according to the nature of the grievance. The action of replevin is the usual remedy the law gives for goods wrongfully taken, but for the abuse of a distress, trespass or case is the appropriate remedy.^ § 730. The ancient statute of Marlebridge, (52 Hen. 3, c. 4,) which forms the basis of all subsequent legislation on this subject, both in England and America, enacts, " distresses shall be reason- 1 Connah v. Hale, 23 Wend. E. 462 ; Perreau v. Bevan, 5 B. & C. 384 ; I Wms. Saund. 195, n.; Dalton v. Whittem, 1 Car. & Kir. 961 ; Co. Lit. 160, b.; 5 Term E. 248. 516 LAW OF LANDLORD AND TENANT. [CH. XV. able and not too great ; and they that take unreasonable and undue distresses shall be grievously amerced, for the excess of such distress." The remedy for a party aggrieved under this sta- tute, is by an action on the case, and not trover or trespass.^ To enable a party to maintain an action for taking an unreasonable or excessive distress, it is not necessary that express malice should be shown ; it is sufficient if the goods taken appear to be greatly disproportionate to the amount of rent due. But it is not every trifling excess that will render the landlord liable to this action ; for where there is but one thing on the premises which can be taken, so that the landlord must either take it or go without his distress, an action will not lie, although the value of the thing taken greatly exceed the amount of rent due.^ §731. ISTor is it necessary that the proceedings should have gone further than a levy under a distress warrant, in order to fix the landlord's liability ; for where a landlord's agent went upon the premises of the tenant, walked around them, and gave the usual written notice that he had distrained certain goods lying there, for rent, &c., and then went away without leaving any per- son in possession ; it was held that this was a sufficient seizure to give the tenant a right of action for an excessive distress ; and that quitting the premises without leaving a person in possession, was not an abandonment of the distress.^ If the landlord distrains after the tenant has tendered the rent, without making a subse- quent demand of it, and being refused by the tenant, an action may still be maintained for an excessive distress.* And in such action the tenant will not be required to prove the precise amount due.^ Nor does the tenant waive his right of action by entering into an arrangement with the landlord respecting the sale of the goods seized.® But where the tender is not made until after the distress has been impounded, case will not lie for the detainer,^ 1 Hutcliins V. Chamters, 1 Burr. 589; "Whitworth v. Smith, 1 Mo. & Ry. 193. 2 Field V. Mitchell, 6 Esp. R. 71 ; 2 B. & C. 823. 3 Swan V. Earl of Falmouth, 8 B. & C. 456 ; 7 Bing. 153. * Branscomb v. Bridges, 1 B. & C. 145. 5 Sells V. Hoase, 1 Bing. E. 401 ; 8 Moore, 451 ; 1 C. & P. 28. 6 Willoughby v. Backhouse, 2 B. & C. 821 ; 4 Dow. & Ry. 539. ' Sheriffs. James, 1 Bing. E. 341. CH. XV.] ACTIONS FOR WEONGFUL OR IRREGULAR DISTRESS. 517 nor can an action for an excessive distress bo maintained after a judgment recovered in replevin.^ Even a lodger may maintain an action if his goods are taken on an excessive distress, by the landland of the party under whom he occupies.^ The right of action, however, for taking an excessive distress, is said to be strictly personal, and does not pass to assignees, or personal repre- sentatives.* § 732. Trespass was the tenant's usual remedy at common law, if the landlord distrained where no rent was due. The statute 2 W. & M. c. 5, which first enabled a landlord to sell a distress that had been seized for rent, provided, that if any person should distrain and sell under that act for any rent pretended to be due, when in fact no rent was due, the owner of the goods might reco- ver double the value of the goods so distrained and sold. This statute does not apply to the case of distraining for more rent than is due, or where there is no right to distrain, but only where no rent is due. If there is any rent due, it will protect the dis- trainor from the penalty of paying double the value of the goods, although he may be liable in another way if he proceeds without authority.* It is to be observed, also, that the statute extends only to cases where the goods distrained have been sold ; if they have not been sold, the remedy is by an ordinary action of tres- pass for damages, as at common law.^ ^ § 733. At common law, a landlord cannot distrain twice for the same rent ; nor can he distrain for part of the rent at one time and part at another, if there were sufficient goods upon the premises at the time of the first distress, to have enabled him to have then distrained for the whole. If he does either he is liable to the tenant for damages, either in trespass or case, at the tenant's option.^ So if, after having distrained goods sufficient to pay the rent, he abandons that distress, and afterwards make a second ' Phillips V. Berryman, Johns. N. P. Trespass, IX. 2 Pisher v. Alger, 2 Car. & Pay. 374. 8 O'Donnell v. Seybert, 13 S. & E. 64 ; Smith v. Meander, 16 Ibid. 375. ■• Peters v. Newkirk, 6 Cow. R. 103. '' Lockier v. Patterson, 1 Car. & K. 271. 6 Lear v. Caldicott, 4 Q. B. E. 123 ; 45 E. C L. E. 44 518 LAW OF LANDLORD AND TENANT. [CH. XV. distress for the same rent, he is also liable for damages in either form of action.! jf^ however, he distrains for the entire rent, but by mistake in the value of the goods distrained takes an insuffi- cient distress, a second distress for such insufficiency will be law- ful, although there might have been sufficient goods upon the pre- mises to have answered the whole demand at the time of the first taking. And he may take a second distress upon goods subse- quently coming upon the premises, if, in the first instance, he dis- trained all the goods he could then find thereon for the entire rent, and the goods did not cover the amount of the rent due.^ § 734. If rent is due at several days, the taking of a distress on one day for rent will be no bar to the taking of another rent on another day ; nor does it matter whether the first distress be taken for the rent which last became due.^ And where cattle, taken and impounded as a distress, die, without any fault or neglect in the distrainor, he may lawfully take another distress.* "Where a landlord has distrained for rent, and the tenant, in order to prevent a sale, has given a promissory note for the arrears then due, in which note a third person has joined as security ; should the landlord again distrain for rent accruing after the period to which the note referred, and the proceeds of such second distress are not sufficient to satisfy both the demand in respect of the promissory note, and also the rent subsequently accrued, they must first be applied in discharge of the note, or rather of the debt for which the note was given ; since while the note remains unpaid it was merely a collateral security, not affect- ing the landlord's right of distress.^ § 735. Case lies at common law, for distraining for more rent than was due, even though the distress taken was not sufficient to pay the rent due ; for though there is in such case no real damage, there is legal damage ; and the action lies, though the 1 Smith V. Goodwin, 4 B. & Ad. 413. 2 Bro. Abr. Distress, 96 ; Hutcliins v. Chambers, 1 Burr. 589 ; 1 Cr. M. & K. 696. 8 Pamer v. Stabick, 1 Sid. 44. < Vasper v. Eddowes, Ld. Ray. 720 ; Salk. 248 ; 11 Mod. R. 21 ; 12 Ibid. 658. " Heming v. Ernuss, 1 Price, R. 386. CH. XV.J ACTIONS EOR WRONGFUL OR IRREGULAR DISTRESS. 519 notice of distress for more rent than is due is withdrawn, and the distress is sold under a second notice for the rent really due. Nor will the relinquishment of the excessive sum distrained for cure the wrong, any more than the return of a chattel converted cures the conversion.^ If a landlord take things which are by law exempt from distress, the tenant, or person from whose pos- session they were taken, or the owner, if he have a right to the immediate possession, may maintain either trover, trespass, or replevin against the party distraining ; or the landlord, if he can he connected with the distress; or both. If the things have been removed and sold, the plaintiff will be entitled to their value, and the damage he has sustained by their removal. But if they have not been removed, and the tenant has paid the rent and expenses, to prevent their removal, he will only be entitled to the actual damage sustained by the seizure.^ § T36. We have seen that, at common law, any irregularity or unlawful act in taking a distress, made the landlord a trespasser from the beginning, and a tenant might proceed against him accordingly ; but that the statute now only authorizes the party aggrieved to maintain an action of trespass, or trespass on the case, for any special damage he may have sustained by such irre- gularity or unlawful act. An irregularity consists in either omit- ting to do something necessary, for the due and orderly conduct- ing a legal proceeding, or doing it in an unseasonable time, or improper manner. The nature of the irregularity must determine the form of action, except where, by virtue of a statute, as in New York, case may be a concurrent remedy with trespass under any circumstances. Hence for irregularity, consisting in the omission to appraise the goods before they were sold, the action will be on the case. But where the party remained in possession of the goods in the plaintiff's house beyond five days, and then removed them, it was held that trespass was maintainable ; since the removal of the goods was a distinct, subsequent, and substan- tive act of trespass, and the remaining in possession beyond the 1 Taylor v. Henniker, 4 Per. & Day. 242 ; 12 Ad. & El. 488, overruling Wilkin- son V. Terry, 1 M. & Ey. 377. 2 Harvey v. Pocock, 11 Mees. & Wels. 740 ; Niblet v. Smith, 4 Term R. 504. 520 LAW OP LANDLORD AND TENANT. [CH. XV. five days was also to be considered a new act of trespass.^ Lord Ellenborougli observing, that he could not understand the statute as giving an option to maintain trespass, where trespass would not lie by the rules of the common law ; but as giving an election to bring trespass where trespass was the proper remedy,- and case only where case was proper. <§> 737. A landlord distrained furniture and beasts of the plough ; and by the appraisement it appeared that, without the beasts of the plough, the distress would be insufBcient to satisfy the rent. But upon the sale the beasts were first sold, and then part of the furniture, and it was ascertained, by the result of the sale, that the furniture alone would have satisfied the rent. The tenant brought an action on the case, under the statute prohibit- ing beasts of the plough to be distrained, so long as other goods were to be found on the premises ; and the judge left it to the jury to say, whether the defendant had reasonable grounds for supposing that the goods were suflScient to satisfy the rent and expenses, without a sale of the beasts ; for that if the original taking was lawful, the result of the sale could not make it unlaw- ful, and there was nothing in the statute directing beasts of the plough to be last disposed of.^ § 738. Where a termor underlets, the law implies a duty on his part to indemnify the under-tenant against all his covenants with the superior landlord ; and the under-tenant may have an action on the case against him for any injury he may sustain, by reason of any such breach of covenant.^ But where the under- letting was by deed, not containing a covenant to indemnify against such claims of the head-landlord, the under-tenant was not allowed to maintain assumpsit against his landlord, for permit- ting him to be distrained upon for rent due to the head-landlord ; the lease being by deed, the tenant's remedy, if any, was by an action of covenant upon the implied covenant for quiet enjoy- 1 Wiaterboura v. Morgan, 11 East, 395; 2 Campb. 115; Ladd v. Thomas, 4 Per. & Dav. 9 ; 12 Ad. & El. 117. ^ Jenner v. Yolland, 6 Price, K. 4. Hancock v. Cafifyn, 8 Bing. 358. CH. XV.] THE ACTION OF BEPLBVIN. 521 ment.^ But where the demise is not by deed, the proper remedy is by action on the case, although assumpsit may also lie.^ Section II. The Action of Replevin. § 739. As a common-law action, replevin has long been used to try the legality of a distress ; ^ although it is not now confined exclusively to this object, (except in Connecticut and Alabama,)* but applies to all cases where goods and chattels have been wrongfully taken, whether under a distress or otherwise.^ And in general it lies for any tortious or unlawful taking of the pro- perty of another, or whenever trespass de bonis asportatis can be sustained.^ When goods have been tortiously taken, even a lond fide purchaser under the wrong-doer is answerable to the owner, either in trover or replevin, in the detinet as well as in the cepit.'' But not for an illegal detention of property, where the party comes to the possession by delivery, from a person having a spe- cial property only ; ^ nor for goods deposited with the plaintiff by a stranger, who has no interest in them.^ The courts of Maine and Massachusetts have held, and the Statutes of New Jersey and Indiana enact, that it lies in any case of unlawful detention, I ScWencker v. Moxsy, 3 B. & C. 789 ; Baker v. Harris, 9 Ad. & El. 532. ^ Per Tindal, J. , in Hancock v. Caffy n, supra. 8 2 Inst. 140; 4 M. & S. 121. * "Watson V. Watson, 9 Conn. R. 140 ; Smith v. Crockett, 1 Ala. R. 277. 5 Pangburn .;. Patridge, 7 Johns. R. 140; Ilsley u. Stubbs, 5 Mass. R. 283 ; 1 Sch. & Lef. 320 ; Weaver v. Lawrence, 1 Doll. R. 157 ; 16 S. & R. 300 ; 3 Rand. R. 448 ; Byrd v. O'Harlin, 1 Rep. Con. Ct. 401 ; Clark v. Adair, 3 Harr. R. 113 ; Pease v. Simpson, 3 Pairf. 261 ; Chin v. Russell, 2 Blackf. (Ind.) R. 174 ; Stat, of Ohio, 1831. e Wheeler v. McParland, 10 Wend. R. 322 - 349 ; Rogers v. Arnold, 12 Wend. R. 32 ; Hopkins o. Hopkins, 10 Johns. 369 ; Thompson v. Button, 14 Ibid. 87 ; Buffington v. Gerrish, 15 Mass. R. 156; Badger v. Phiuney, Ibid. 359 ; 3 Serg. & Rawle, 562. ' Bennett v. Warren, 3 Hill, (N. Y.) R. 348 ; Ibid. 281 ; 6 Ibid. 613 ; Patterson u. Adams, 7 Hill, (N. Y.) R. 126. 8 Marshall v. Davis, 1 Wend. 109 ; 4 Bing. 299 ; 12 Moore, 547. ^ " Harrison v. Mcintosh, 1 Johns. R. 380. 44* 522 LAW OF LANDLORD AND TENANT. [CH. XV. though the taking was not tortious and unlawful.^ So it lies in Pennsylvania, -wherever one man claims goods in the possession of another, no matter how the possession of the latter was acquired.^ While in Virginia it was decided that, at common law, replevin lay in all cases where goods were unlawfully taken.^ And this was the law of Virginia until 1823, when an act of the legislature confined the writ to cases of distress for rent.* In South Caro- lina it is said not to have been decided whether replevin will lie in any other case than that of a distress for rent.^ While the statutes of New York, Michigan, Illinois, Missouri, and Arkansas apply this writ to all cases of wrongful taking or detention. § 740. In executing the writ, the sheriff of the county in which the goods have been distrained will take them out of the hands of the landlord and his distraining officer, and replace them in the possession of the tenant, upon receiving from the tenant his bond, with sufficient sureties, in a sum double the value of the property seized ; conditioned that he will prosecute his suit with effect, and without delay, and test the validity of the distress ; and that he will restore the goods to the landlord, in case the judgment of the court shall be against the tenant. At common law, the sheriff took pledges from the plaintiff to prosecute the suit ; and, by statute, he was required also to take pledges for a return of the beasts, if return should be awarded ; but this he did at his peril, and if the security proved insufficient, he remained liable in an action on the case.^ Where this liability exists, it is coextensive with that which the sureties would have been under, if the sheriff had done his duty, and taken a sufficient bond; and as the responsibility of the sureties is limited by the statute to double the value of the goods distrained, that sum is the measure of 1 Seaver v. Dingley, 4 Greenl. 315 ; Master v. Baldwin, 17 Mass. E. 606 ; Baker V. Tales, 16 Ibid. 147 ; Ehner, Dig. 466. 2 Weaver v. Lawrenee, 1 Dall. 157 ; Keite v. Boyd, 16 S. & R. 300. 3 Vaideu v. Bell, 3 Rand. R. 448. * 1 Robinson, Pr. 40S. 5 Byrd v. O'Harlin, 1 Rep. Con. Ct. 401. ^ Pencase v. Bevan, 5 B. & C. 284. The plaintiff must give some evidence of the insufficiency of the sureties, in order to throw the bui-den of proof to the con- trary on the sheriff. Roscoe, N. P. 648 ; 6 Esp. E. 100 ; Rex v. Lewis, 2 Term R. 607 ; 11 Geo. II. c. 19 ; Richards v. Acton, 2 Black. R. 1220. CH. XV.J THE ACTION OF KEPLEVIN. 523 damages against the sheriff.^ In Pennsylvania, the sheriff is still held responsible for the sufficiency of the sureties, at the ter- mination of the suit, and it is no excuse for him that they were in good credit at the time the writ of replevin was executed.^ § 741. The Code of Procedure of New York has made a mate- rial change in the law of replevin, with respect to the possession of property seized ; for if the defendant will give equal security to that which the plaintiff has given, he will, under the code, be allowed to retain the property during the litigation. It provides : "At any time before the delivery of the property to the plaintiff, the defendant may require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound, in double the value of the property, as stated in the affidavit of the plaintiff, for the deli- very thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum, as may, for any cause, be reco- vered against the defendant. The defendant's sureties, upon a notice to the plaintiff, of not less than four, nor more than eight days, shall justify before a judge, in the same manner as the sure- ties given by the plaintiff ; and upon such justification, the sheriff shall deliver the property to the defendant.^ >§> 742. The sheriff is not bound to warrant the sufficiency of the pledges at all events ; for if, at the time of taking the bond, the sureties are apparently responsible, he is not liable to an action for taking insufficient pledges.* But he is bound to use a reason- able discretion and caution, and whether he has done so or not is a question for a jury.^ And although he is justified in taking a person as surety who appears to the world, and is reputed to be a person of responsibility, yet, if he actually knows that such person is not responsible, or if, having the means of information, he 1 Evans v. Brander, 2 H. Black. E. 547 ; Hefford v. Alger, 1 Taunt. 218 ; Baker V. Garratt, 3 Bing. 59 ; 2 Blng. N. C 220 ; 4 Ad. & El. 82.3. 2 Oxley V. Cowperthwaite, 1 Ball. 349 ; Pearce v. Humphreys, 14 S. & R. 23. 8 Code of Procedure, §§ 211, 212. 4 Hiadle v. Blades, 5 Taunt. E. 225 : S. C.l Marsh. 27 ; Sutton v. Waite, 8 B. M. 28. 5 Jaffery v. Bastard, 4 Ad. & El. 823 ; 6 Ner. & Man. 303. 524 LAW OF LANDLORD AND TENANT. [CH. XV. neglects to use them, he will be responsible.^ Although he is required by the statute to take a bond, yet if he neglects to do so it is no contempt of court, for which an attachment will be granted, but the proper remedy is by action on the case against him.^ And where a statute does not require the sheriff to take a bond from the plaintiff, this omission to take such bond with sureties, does not invalidate the writ, but only subjects the sheriff to an action by the defendant.^ Under the statute of Massachusetts, which requires a bond from the plaintiff to the defendant, it has been held that a bond from the plaintiff to the replevying officer, instead of the defendant, was absolutely void.* In an action against the sheriff, the sureties in the bond may be witnesses to prove whether they were sufficient or not. And if the avowant, or person making cognizance, take an assignment of the replevin bond, and prosecute the principal and sureties, and they are found to be insolvent or insufficient, he may afterwards bring an action upon the case against the sheriff for taking insufficient sureties ; for taking an assignment of the replevin bond from the sheriff, is no waiver of any proceedings afterwards against him, as it is in the case of a bail bond. Nor does the plaintiff waive his remedy against the sureties by giving time to the principal.^ >^ 743. A plaintiff in replevin who does not use diligence in prosecuting the suit, is guilty of a breach of that part of the condi- tion of the bond which requires him to prosecute without delay, even though it may not appear that the suit is determined ; but he is not responsible for the default of the sheriff, or guilty of de- lay, by reason of the sheriff having neglected to serve a summons.® Allowing two years to elapse without proceedings, has been held to be a breach of the condition to prosecute without delay, and the obligee may recover on such breach, although no judgment of non-pros, was ever signed. '^ To prosecute the suit with effect, 1 Scott V. Waithman, 3 Stark. K. 170. 2 Rex V. Lewis, supra. 3 Vaiden v. Bell, 3 Rand. 448. * Purple V. Purple, 5 Pick. 226. '' 1 Saund. R. 195, g. ; Moore v. Bowmaker, 6 Taunt. R. 379 ; S. C. 2 Marsh. 81 ; Turner v. Turner, 2 Bro. & Bin. 112. " Harrison v. Wardell, 2 Nev. & Man. 703 ; 5 Bar. & Adol. 146. ' Axford V. Perrott, 4 Bing. 586 ; 1 Moore & Pa. 470; 1 B. & P. 410. CH. XV.] THE ACTION OF REPLEVIN. 525 means that the plaintiff must not only proceed to a decision of the cause, but that he succeed in it also.^ But it has been held, that the condition of the bond was saved, when the obligor prosecuted it, until the writ abated by the death of the defendant.® In Penn- sylvania, however, this action does not abate by the death of the defendant ; ^ nor in Maryland, by the death of the plaintiff.* § 744. In New York, it is held that the death of the plaintiff abates the suit, and that it cannot be revived by a scire facias ; nor has the plaintiff any remedy in such case upon the replevin bond. But the temporary right of possession which the plaintiff had acquired by his writ, falls with it, and the defendant may retake the goods peaceably without suit, or after demand and refusal, by a suit in trover or replevin.^ "Where the property taken by the writ Is a living animal, and there is judgment for its return, in an action on the replevin bond for a breach of its condition, it Is a good plea that before judgment in the replevin suit, the animal died without the default of the plaintiff in the suit.^ But in Kentucky, it was held in the case of a slave reple- vied, that his death pending the suit was not a valid defence on the replevin bond, and, if available at all, it could only be by a plea fius darrein continuance? Both the avowant and the person making cognizance may take an assignment of a replevin bond from the sheriff, and sue jointly upon it.^ The avowant may always sue, without joining the person making cognizance ; ^ and where there is no avowant named on the record, the person mak- ing cognizance, may sue alone on the bond.^" 1 Gould V. Warner, 3 Wend. K. 54 ; Pemble v. Clifford, 3 McCord, 43 ; Morgan V. Griffith, 7 Mod. E. 380 ; Perreau v. Bevan, 5 B. & C. 300. ■2 Badlam v. Tucker, 1 Pick. E. 284. ' Keate v. Boyd, 16 S. & E. 300. * Fisher v. Bell, 1 Har. & J. 31. ■i Burkle v. Luce, 6 Hill, (N. Y.) R. 558; Bradyde v. Ball, 1 Bro. C. E. 427; 2 Dall. 68-131 ; 1 Pick. 284; 8 Greenl. 128. As to third persons, however, who have acquired rights under the plaintiff in repleyin during the pendency of the suit, the court, in the New York case, seems to doubt whether the defendant's lien was not gone, so that he could not retake the goods. ^ Carpenter v. Stevens, 12 Wend. E. 589. ' Gentry v. Bamett, 5 Monroe's E. 116. 8 Philips V. Price, 3 M. & S. 180. » Archer v. Dudley, 1 B. & P. 381, n. w Page V. Earner, 1 B. & P. 378. 526 LAW OF LANDLORD AND TENANT. [CH. XV. § 745. The sureties in a replevin bond, are only liable for the value of the goods seized and the costs ; and if that value exceeds the amount of rent due, they will only be liable for the rent and costs, not exceeding the penalty of the bond in any case.^ Their liability is limited also to the amount of rent in arrear at the time of the distress and costs, excluding subsequently accruing rent.^ If the parties to the suit without the privity of the sureties, refer the cause to an arbitrator, and agree that the bond shall stand as security for the performance of the award, it will discharge the sureties.^ But where such parties referred to arbitration the time of payment of the rent, with certain claims of the tenant on the landlord for damages, with liberty for the tenant to deduct them when awarded for the rent ; and agreed to suspend the proceed- ings in replevin pending the reference ; after an award made, it was held, that the sureties in the replevin bond were not thereby discharged.* And it is no plea to an action against sureties, that the replevin suit was referred to an arbitrator, and that he, with- out the knowledge of the sureties, enlarged the time for making his award.^ An agreement which was made a rule of court between the plaintiff and the principal, to stay all proceedings in replevin, upon payment by the latter of a certain sum of money, each party to pay his own costs, was held not to be a discharge to the surety, after breach by the principal ; but that the surety was liable for such sum, as appeared upon a reference to be due.^ § 746. The sheriff is bound to deliver actual possession of the chattels to the plaintiff; a symbolical delivery is not sufficient, unless with the consent of the plaintiff.^ At common law he may not break an inclosure to come at the property ; but by the sta- tutes, if the property to be replevied, or any part thereof be secured or concealed in any dwelling-house, or other building or inclosure, the officer must publicly demand deliverance thereof, and if the same is not delivered, he shall cause such house, build- 1 Hunt!). Round, 2 Dowl. 558; 9 Ibid. 975-1029; 1 Taunt. 218. 2 Ward V. Hawley, 1 Tou. & Jer. 285. 3 Archer v. Hale, 4 Bing. 464 ; I Moore & Paj. 285. * Moore v. Bowmaker, 7 Taunt. 97 ; 7 Price, 223 ; 2 Marsh. 392. 5 Aldridge v. Harper, 10 Bing. 118; 3 Moore & Scott, 518. 8 Hallett V. Mountstephan, 2 D. & R. 343. ' Hayes V. Lusby, 5 Har. & J. 485 ; McColgan v. Huston, 2 Nott. & McC. 444. CH. XV. J THE ACTION OB REPLEVIN. 527 ing, or inclosure, to be broken open, and shall make replevin according to the writ, and, if necessary, he may take to his assistance the power of the county.^ After the execution of the writ by the delivery of the goods to the defendant, he cannot regain possession of them except by virtue of a judgment in the cause, and a writ of replevin issued by a defendant to obtain a redelivery of the property taken from him by virtue of a reple- vin, is irregular, and will be superseded with costs, if the motion be made before the return of the writ, or set aside if after the return.^ § 747. By the English law, if the defendant claims property in the goods, the sheriff's power to redeliver them is suspended, and the plaintiff must sue out a writ of proving property. If on the inquest the property is found for the plaintiff, the sheriff makes deliverance ; but if found for the defendant, the replevin by plain- tiff is determined, and the sheriff can proceed no further, although he may still bring a new replevin by original writ.^ According to the practice of Pennsylvania, if the defendant claims property, the writ is not defeated, but the suit goes on, and the plaintiff gives security to deliver the goods to the defendant, if, on the trial, the property shall not be found in him.* The Revised Statutes of New York contain a provision of a similar character. If the defendant, or any other person who may be in possession of the goods and chattels specified in the writ, shall claim property therein, or any part thereof, the sheriff shall summon a jury to try the validity of the claim. If the jury shall find the property of the goods is not in the person claiming, the sheriff shall forth- with deliver them to the plaintiff ; but, if the property is found to be in the claimant, the sheriff shall not deliver the same, unless the plaintiff in replevin shall indemnify the sheriff to his satisfac- tion for delivering the property claimed, and refund the costs, and the sheriff may then deliver the goods to the plaintiff. And if the goods are not delivered to the plaintiff, he may proceed in the action for the recovery thereof, or their value.^ 1 2 R. S. 524, § 10. 2 Morris v. Dewitt, 5 Wend. E. 71. 8 1 Inst. 145, b. * Weaver v. Lawrence, 1 Dall. 157. ^ 2E. S. 525, § 13-19. 528 LAW OF LANDLORD AND TENANT. [CH. XV. ■§, 748. It is said to be a general rule, but subject to exception, that whatever is distrainable may be replevied.^ It can only be supported for taking a personal chattel, and not for things affixed to the freehold ; in which latter case the remedy should be tres- pass ; or if the Interest be in the reversion, case. But if after they are levied on they be separated from the freehold, they become personal property, and may be replevied.^ Upon this principle, replevin lies for the detention of the young of animals distrained, which have been born since the distress.^ If trees are cut down upon the plaintiff's land, and converted by the defend- ant into posts and rails, it is not such an alteration of the property as will prevent the plaintiff from recovering them in this action.* Eeplevin, however, will not lie for goods which the defendant has lawfully obtained possession of, until after a demand, for it is only from the time of a demand and refusal, that the detention becomes unlawful.^ And, therefore, furniture leased for a time unexpired, and attached as the property of the lessee, cannot be replevied by the owner pending the lease, as he has no right of possession.^ § 749. The plaintiff must, at the time of the caption, have had either the general ownership, or a special property, as the factor, agent, or bailee of the goods taken.'' A mere possessory right is not sufficient.^ Thus a deposit by a person, who has himself no property in the goods, does not give the depositary any right to replevy them; and it seems doubtful whether any other mere naked bailee for safe-keeping can maintain this action.® A ser- vant who has had charge of goods, as such only, cannot re- plevy ; but if they were delivered to him by the master for a 1 1 Swanston, E. 296; Bac. Ab. Eapl. P. 2 Cresson v. Stout, 17 Johns. 116; Niblet v. Smith, 4 Term R. 504; P. N. B. 68. 3 Sid. 82; Gilb. ou Rep. 156. ' Snyder v. Vaux, 2 Eawle, R. 423. * Seaver v. Dingley, 4 Greenl. 316. » Wheeler v. Train, 3 Pick. R. 255. ' Dunham v. Wyckoff, 3 Wend. 280 ; Co. Lit. 145, b ; 5 Mass. R. 303 ; 9 Ibid 112. * Pattison v. Adams, 7 Hill, (N. Y.) R. 126 ; Terapleman v. Smith, 10 Mod. 25 ; Wyman v. Dorr, 3 Greenl. 183 ; Wheeler v. Train, 3 Pick. 255 ; Smith v. William- son, 1 Har. & Johns. 147. 9 Harrison v. Mcintosh, 1 Johns. R. 380 ; Hall v. Tuttle, 2 Wend. R. 475. CH XV.] THE ACTION OF REPLEVIN. 529 particular purpose, he may.^ It will not lie by a person out of possession of land, to recover a crop of grain cut and removed by the party in possession, although the grain was sowed by the plaintiff, and he was wrongfully ousted by the defendant ; for the proper remedy is by an action of trespass, quare clausum fregit, after regaining possession by ejectment.^ Several persons, hav- ing separate interests in the property distrained, cannot join in this action ; ^ but joint tenants and tenants in common must join.* And as a part-owner of a chattel cannot maintain replevin for his undivided part,^ if he sues for a moiety only, the court will, ex officio, abate his writ.^ If the cattle of a feme sole be taken, and she afterwards marries, the action should be in the name of the husband ; for the property, being personal, is trans- ferred by the marriage, and vests in him alone ; ^ yet the hus- band and wife may join, when a sufficient cause for joining the wife appears.^ If, however, the goods are taken after marriage, husband and wife ought not to join ; but if they do, and after verdict a motion is made on this ground, in arrest of judgment, it will be presumed that the husband and wife were jointly possessed of the goods before marriage, and that the goods were taken before marriage, in which case the husband and wife might join.^ Executors may replevy goods of the testator taken in his lifetime ; for the general property is in the executor, and the possession ought to follow.-'*' But if the plaintiff has not the immediate right of possession, this is not the proper action ; he must proceed by action on the case.^^ Nor can one joint owner of a chattel main- tain this action against the other.^^ 1 Harris v. Smith, 3 Serg. & Rawle, 20. - Demott V. Hageraan, 8 Cow. E. 220 ; Brown v. Caldwell, 10 Serg. & Eawle, 114; Mather v. Trinity Church, 3 Ibid. 509; Kerley v. Hume, 3 Monroe, E. 82. 3 Hart V. Fitzgerald, 2 Mass. E. 509 ; Gardner v. Dutch, 9 Ibid. 427. " Buller, N. P. 53 ; Co. Lit. 145, b. » Hart V. Fitzgerald, 2 Mass. E. 509 ; Gardner v. Dutch, 9 Ibid. 427. " Per Story, J., in De Wolf «. Harris, 4 Mason, (N. J.) E. 515. ' Baker v. Pales, 16 Mass. E. 149; P. N. B. 69, E. " Lee's Case, Temp. Hardw. 119 ; Serres v. Dodd, 2 New E. 405. If the wife's interest does not appear, the declaration is demurrable. " Bern et ux. v. Mattaire, Cas. Temp. Hardw. 119. M Bro. Abr. tit. Eepl. pi. 56 ; Bnl. N. P. 54 ; 2 E. S. 522, 5 2. If 7 Term E. 9. 12 McEldery v. Planagan, 1 Har. & Gil. 302. 45 530 LAW OF LANDLORD AND TENANT. [CH. XV. § 760. This action lies against a landlord -who takes goods ■which are privileged by law, as things protected for the sake of trade, or beasts of the plough, while other things remain on the premises sufficient to satisfy the distress.^ Or if he takes the goods of the tenant when there is no rent in arrear ; or though the rent be due at the time of the seizure, if he afterwards tender the amount due ; for a tender takes away the right to distrain, until a subsequent demand and refusal.^ And if the goods are taken by one, at the command of another, the action may be brought against both, or either.^ It lies not only against the per- son by whose direction the distress was levied, but also against him in whose custody it is found.* But since the Revised Sta- tutes, a landlord is not liable for the unlawful execution of a dis- tress warrant, unless he adopts and claims to avail himself of the officer's acts. And, to constitute a tortious taking, it is not necessary that there should be an actual manucaption of the goods ; a mere claim of dominion, or an intimation of an intention to interfere with the goods, under pretence of any right or authority, amounts to a constructive trespass, and no demand is necessary before bringing an action.^ The tenant may replevy at any time before the goods distrained have been actually sold.® And the court will, at any time, stay all proceedings in replevin, on a distress for rent in arrear, on the application of the tenant, upon payment of the rent due, according to the defendant's avowry, and of all costs up to the time of the application ; "^ and this course is very frequently adopted, for the purpose of gaining time, and preventing a sacrifice of goods, by tenants who have been unfortunately prevented from discharging their rent in time to avoid a distress by the landlord. § 751. At common law this action is strictly local, although brought for a cause of action for which trespass de bonis aspor- 1 Co. Lit. 160, b. 2 Slingerland v. Morse, 8 Johns. R. 476 ; Huntley v. Le Conte, 6 Cow. K, 728. 3 2 Eol. Abr. 431 ; Watson, Sheriff, 297. * Allen V. Crary, 10 Wend. 349 ; 1 Campb. 187. s Connah v. Hale, 23 Wend. E. 462 ; 5 Cow. E. 326 ; 7 Ibid. 735. « Jacob V. King, 1 Marsh. 135 ; S. C. 5 Taunt. R. 451. ' Vernon v. Wynne, 1 H. Black. 24. CH. XV.J THE ACTION OF KBPLBVIN. 531 talis would lie, and the venue must be laid in the county in which the distress was taken ; or, if it was taken in one county and car- ried into another, the venue may be laid in either.^ The Revised Statutes, however, place it among transitory actions ; but declare that, when this action is brought for the recovery of goods or chattels distrained for any cause, it shall be laid in the county in which the distress was made, and not elsewhere.^ The plaintifiF, also, is bound to show the place where the distress was taken, or at least a place in which the landlord has had it in custody ; ^ but an omission of this character may be cured by the defendant's pleading over.* The declaration must conform to the writ ; and where the writ is for the taking and detention of property, the plaintiff cannot declare for the wrongful detention alone. ^ The goods taken must be described with certainty, although in this respect the same strictness does not prevail as formerly.^ But an allegation of taking divers goods and chattels of the plaintiff, without specifying them, is bad for uncertainty ; and though a judgment pass by default for the plaintiff, the defect is not obviated.'i' The nature and quantity of the goods must be described with such certainty, that the sheriff may be able to make redeliverance of them, though the tenant will not be bound to prove the exact quantity, but may recover less than the decla- ration alleges.^j § 752. To the declaration, the defendant either pleads in bar or abatement, or makes cognizance or avowry. And at common law a landlord, or other person interested in the premises, if not made a defendant, or a lessee for life or years, where the defend- ant avowed upon the title, might pray in aid of his lessor, that he be called in to defend and be made a party to the suit. This 1 Williams v. Welch, 5 Wend. 290 ; Pitz, N. B. 69, i ; Robinson v. Mead, 7 Mass. R. 353. 2 2 R. S. 522, § 3. " Walton V. Kersop, 2 Wils. 354 ; Abercrombie u. Parkhurst, 2 B. & P. 480 i Cro. EUz. 896. * Gardner v. Humplireys, 10 Johns. R. 53. 5 Nichols V. Nichols, 10 Wend. R. 629. 6 2 Saund. R. 74, b. ' 7 Taunt. R. 642; S. C. 1 Moore, 386. 8 Bern v. Mattaire, Cas. Temp. Hard. 119. 532 LAW OF LANDLORD AND TENANT. [CH. XV. proceeding has been abolislied in many of the States ; but to pro- vide for those cases in which the reversioner or remainder-man may desire to come in and defend, the practice which prevails in ejectment has been adopted by the Revised Statutes. " No aid prayer shall be allowed in this action ; but any person having an estate in the lands or tenements upon which the distress in ques- tion was made, may, upon special cause shown to the court, and on such terms as it shall think equitable, be made a co-defendant in the action, or be permitted to defend separately, as the case may require." •' § 753. The general issue in replevin is, non cepit niodo et forma, by which the defendant puts in issue not only the taking, but als,o the taking in the place mentioned in the declaration.^ The extension of the action under the Revised Statutes rendered it necessary to furnish a new general issue, which should be also conformable to the action of detinue ; they have accordingly enacted : " When the wrongful taking of the property described in the declaration is complained of, the plea of the general issue shall put in issue not only the taking of such goods and chattels, but such taking in the place stated. If the action is founded on the wrongful detention only, and the taking is not complained of, this plea shall put in issue not only the detention of the goods and chattels, but the property of the plaintiff therein." ^ " With the plea denying the taking or detention of the property claimed, the defendant may give notice of any matters which, if properly pleaded, by avowry, cognizance, or plea, would be a bar to the action, and which, if the goods have been replevied, would entitle him to a return thereof ; and he may give such matters in evi- dence on the trial, in the same manner, and with the like effect, as if the same had been so pleaded. And the plaintiff may plead in answer, to any avowry or cognizance, as many several matters as he shall think necessary for his defence.* In Virginia, a 1 2 E. S. 529, § 43. = 1 Saund. E. 347 ; 2 Mod. E. 199 ; 2 Wils. E. 355. 3 2 E. S. 529, ^ 39, 40. * 2 E. S. 529, § 44, 45. CH. XV.] THE ACTION OF EBPLEVIN. 533 defendant in replevin cannot plead several matters of defence ; ' although he is allowed to do so in Indiana.^ § 754. The plea of cepit in alio loco, does not admit the taking as laid in the declaration, and the plaintiff is bound to show his right to recover in the same manner as if the plea of non cepit had been interposed.^ Under this plea, a defendant will not be permitted to give special matter in evidence, by way of justifica- tion.* Where a plaintiff replies a claim of property to a plea justifying a taking of goods, under a plaint in replevin, he must designate the time of the claim with precision, so that issue can be taken on it. An averment of a claim, at the said time when, &c., referring to the day laid in the declaration, is not sufficient on special demurrer.^ The place of taking, as well as the village or parish, is material and traversable, and, for want of such aver- ment, the declaration is demurrable ; ^ and if the taking was in a different place from that mentioned in the declaration, he may plead non cepit, and give that fact in evidence, and nonsuit the plaintiff.''' But the defendant cannot have a return of the goods under this plea ; and, therefore, if he wants a return, he must plead that he took the goods in some other place, describing it, and traverse the place laid in the declaration ; and, in order to have a return, avow or make cognizance, stating the cause for which he distrained.^ Riens in arrear is equivalent to the general issue, when pleaded in bar to an avowry.^ The general issue, strictly speaking, puts in issue every material averment ; ^^ not so, however, the plea of riens in arrear. It admits the title of the defendant as stated in the avowry, which, therefore, need not be proved, unless the plea be accompanied by a plea of non- tenure.^^ 1 Vaiden v. Bell, 3 Eand. 448. 2 Martin w.Ray, 1 Blackf. (Ind.) R. 291. 3 WilUams v. Welch, 5 Wend. R. 290. * McFarland v. Barker, 1 Mass. R. 153. ^ Lisher v. Pierson, 2 Wend. E. 345. « 1 Saund. R. 347. ' Johnson v. Wallyer, 1 Str. 507 ; 2 Mod. 199. 8 Crosse v. Bilson, 6 Mad. R. 102; 1 Vent. 127. ° Harrison v. Mcintosh, 1 Johns. R. 380. w Rogers v. Arnold, 12 Wend. R. 30. II Bloomer v. Inhel, 8 Wend. R. 448. 45* 534 LAW OP LANDLORD AND, TENANT. [OH. XV. § 755. In answer to the declaration, the landlord may avow the taking, and show his right, and the cause for which he took them ; or if the landlord's bailiff have made the distress, and the action be against him, he must make cognizance by which he acknowledges the taking in right of his principal, and shows the landlord's right. Where the suit is against both, the one avows and the other makes cognizance. An avowry is in the nature of a declaration, to which the plaintiff may be compelled to plead or answer, as in other actions.^ It sets forth the nature and merits of the defendant's case, showing that the distress taken by him was lawful, and is proper in all cases where he expects to have a return.^ Formerly more strictness was required in pleading an avowry or cognizance, as well in setting forth the matter in avoid- ance, as in stating the title vrhich formed the inducement, than in a declaration.^ The landlord must show a good title in omnibus, and if possessed of a term of years only, he was bound to show the estate out of which his term was derived ; because particular estates being created, by agreement of the parties, out of the pri- mitive estate, it was the office of the court to judge whether the primitive estate and agreement were sufficient to produce the par- ticular estate.* And in all cases the avowry must contain suffi- cient matter to entitle him to a return.^ To obviate the difficul- ties which the avowant had to encounter, in setting forth a long and intricate title, the statute 11 Geo. II. c. 19, § 22, enabled defendants in replevin to avow or make cognizance in general terms ; ® that the plaintiff, or other tenants of the lands whereon the distress was made, enjoyed the same under a grant or demise, at a certain rent, during the time wherein the rent distrained for was incurred, which rent was then in arrear ; and that the place where the distress was taken was parcel of the tenements for which the rent became due. § 756. TJiis provision much simplified the ancient practice, and > 2 R. S. 529, 4 45. ' Bac. Abr. tit. Replevin ; 1 Sauud. R. 347. 8 1 Ld. Ray. 331. ■• Garth. 445 ; Ld. Ray. 331 ; Reynolds v. Thorpe, Str. 796. 5 Hopkins v. Hopkins, 10 Johns. E. 369 ; Goodman v. Ayling, Yelv. 148 ; Rey- nolds V. Thorp, Str. 796 ; Xd. Ray. 331 ; Bain v. Clark, 10 Johns. 424. « Roulston V. Clarke, 2 H. Black. 563. OH. XV.J THE ACTION OB REPLEVIN. 635 was first introduced into New York by the Revised Statutes. It is still necessary, however, that an avowry should distinctly show a compliance with every provision of the statute applicable to the case, and of every other fact ■which entitles the party to distrain. Thus it must show a demise ; ^ and care must be taken that it is correctly stated.^ The defendant must show who is tenant,^ although he need not state in express terms that he is tenant to the avowant ; and if the fact of the tenancy can be collected from the whole of the avowry, it will be sufficient.* It must appear at what rent the premises were held, and when payable ; ^ but a defendant has been allowed to recover rent for a less period • than he claimed by his avowry to be due to him.^ If substantially bad in part, it is bad for the whole. Thus in an avowry for rent, upon taking goods in a place off the demised premises, if only part of the rent avowed for be the subject of distress, the avowry is bad in totoy But where the avowry described the premises as a dwelling-house, with the appurte- nances, and it appeared in evidence to be but the upper part of the house that the plaintiff held as tenant, the shop and yard being let to another person ; this was held to be no variance.^ § 757. The statute just referred to, has done away with the necessity of any special pleading in this action ; but independent of the statute, to an avowry or cognizance the tenant may plead, denying the demise, or tenure as set forth in the avowry, and throw the issue upon the defendant ; who must then prove the demise. But if he only, shows an agreement for a lease, it is insufficient,^ unless the tenant has occupied and paid rent.'" And the terms of the tenancy must be proved as laid, for a variance as to the amount of rent, is fatal,^^ though it is not a material vari- 1 Hayward v. HasweU, 6 Ad. & El. 265. 2 Philpott V. Dobbinson, 6 Bing. 104. 3 Banks v. Angell, 7 Ad. & El. 843. ' Innes v. Colquhon, 7 Bing. E. 265. "5 Smith V. Walton, 1 Moore & S. 380; 2 Chit. R. 531. '■ Forty V. Imber, 6 East, 434. 7 Burr V. Van Buskirk, 3 Cow. K. 263. ' Page V. Chuck, 10 Moore, 264. " Dunk V. Hunter, 5 B. & A. 1° Knight V. Bennet, 3 Bing. 361. " Brown v. Sayce, 4 Taunt. 320. 536 LAW 0¥ LANDLORD AND TENANT. [CH. XV. ance, if it appear that the plaintiff holds for a less term than that stated in the avowry.^ An avowry or cognizance for rent admits the property of the goods in the plaintiff; but if the plaintiff's plea subsequently shows the property of the goods to be in another, the plaintiff cannot maintain the action.^ The tenant may also show that the demise was bad in law by reason of the coverture,^ or infancy of the plaintiff ; * or if good, that the defendant evicted the plaintiff ; ^ that the rent was tendered before suit brought ; ^ that the defendant had been satisfied by a former distress ; ^ or that nothing is in arrear.^ A set-off is not pleadable to an avowry for rent ; ^ but plaintiff may plead in bar, that he had paid a sum for ground-rent, or taxes, &c.^'' A plea of norirtenure to an avowry for rent, setting forth seizin in A. B., and deducing title from him to the avowant, and also showing a reversionary interest in the avowant after the termination of the demise under which the dis- tress was made, admits the seizin of the demise to the avowant from the tenant of the freehold ; it only puts in issue the demise under which the distress was taken.^^ But a plea to an avowry that the landlord holds under a title which in law amounts to a mortgage, but which has not been recorded, and that the plaintiff holds under the same person from whom the landlord derives title, by a bond fide purchase for a valuable consideration, is good, and a complete answer to the avowry. Nor does such plea amount to a disseisin, inasmuch as it shows that the relation of landlord and tenant does not exist ; for the rule that a tenant shall not plead nil hahuit in tenementis, applies only where there is a tenancy in fact.i2 § 758. The place of taking a distress for rent is material and 1 Forty V. Inter, 6 East, 434 ; 5 Term R. 248. 2 Clark V. Davis, 7 Taunt. 72. 8 7 Taunt. 72. « 1 Marsh. 74. * Cowp. 242. « 6 Esp. N. P. C. 95 ; Bui. N. P. 60. ' 4 Moore, 409 ; 2 B. & B. 36, 602. » 3 B. & P. 348. ' 7 Barnes, 450 ; Laycock v. Tuffnell, 2 Chit. 531. 1" 3 B. & A. 516 ; 2 Dougl. 625. " Bloomer v. Juhel, 8 Wend. 448. 12 Brown v. Dean, 3 "Wend. 208. CH. XV.] THE ACTION OF REPLEVIN. 537 traversable ; and where the defendant, in his avowry, states the precise place, or house, the plaintiff may traverse the place in the avowry, though not described with certainty in the declaration. But where the plaintiff does not traverse the place in the avowry, but joins issue on the tenancy, the locus in quo is rendered imma- terial ; and the plaintiff may show the taking of the goods in another place than the house demised, especially where the goods were removed from such house, leaving the rent unpaid, and were seized within thirty days thereafter. If the plaintiff means to make the place material, he must, in his plea in bar, or replication to the avowry, traverse the taking in the place alleged in the avowry, and take issue thereon.^ The plaintiff may plead in bar to the avowry, that the avowant so abused the distress, as to ren- der himself a trespasser ab initio ; but a plea of de injuria, &c., generally would be bad ; ^ for he must take issue upon some parti- cular allegation in the avowry.^ An officer sued for an act done by virtue of his office, may give any special matter in evidence under the plea of the general issue, without notice ; * and has all the rights, and is entitled to the same judgment which a defendant, not an officer, is entitled to under a plea of the general issue, with notice of the special matter.^ The plea of property in a stranger, or in the defendant himself, may be pleaded either in abatement or in bar, and entitles the party to a return without an avowry.^ Such plea, however, must contain a traverse of the right of the plaintiff, and if issue be taken upon such plea by replication affirm- ing the property to be in the plaintiff, the material inquiry for the jury is, whether the property is in the plaintiff.'' § 759. If the plaintiff fails to establish an exclusive right to possess and control the property, the defendant is entitled to a 1 Jackson dem. DeEidder v. Eogers, U Johns. R. 33. 2 Hopkins v. Hopkins, 10 Johns. R. 369. " Ibid.; 1 Bos. & Pul. 76. * Coon V. Congdon, 12 Wend. 496. 6 Seymour v. Billings, 12 Wend. 285. s Harrison v. Mcintosh, 1 Johns. R. 380 ; Quinoy w. Hall, 1 Pick. 357 ; 1 Vent. E. 249 ; Martin v. Ray, supra. But nil halmit in tenementis is no plea to an avowry for rent. Parry v. House, Holt, 489 ; 2 Wils. 208. ' Ingraham w. Hammond, 1 Hill, (N. Y.) R. 353; Lisber v. Pinson, 2 Wend. R. 345 ; Inlzey v. Mauzey, 4 B. Monroe, 6. 538 LAW OF LANDLORD AND TENANT. [CH. XV. verdict. But a defendant will not be entitled to a return of the goods, by simply showing property in a stranger ; be must con- nect himself with the title of the stranger, and thus establish a right paramount to that of the plaintifiF, justifying the taking of the property out of his possession.^ Where a plea of property in a stranger is interposed, as well as of non eepit, a verdict for the plaintiff upon the latter plea, determines nothing between the par- ties but the taking ; and the plaintiff is not entitled to recover unless the other issue be also found for him.^ On an issue, in which the plaintiff to an avowry for rent pleads, denying the seizin of the landlord, the demise, the tenancy, and the assign- ment of the plaintiff: evidence that the defendant in replevin holds by virtue of a deed from the grantor of the plaintiff, exe- cuted to him as a security for the payment of money ; and that the conveyance to the plaintiff was recorded, and the deed to the defendant not recorded, entitles the plaintiff, and not the defend- ant, to a verdict.^ And although a tenant may not dispute his landlord's title, after paying him rent, yet, if by mistake or mis- representation he pays rent to a person not entitled to demand it, he is not precluded by such payment from giving evidence on a plea of non tenuit in replevin against the supposed landlord, what- ever tends to show that the latter is not entitled to the rent.* § 760. Tenants in common must avow for their separate por- tions, joint-tenants may either join or sever ; ^ but if one joint- tenant or tenant in common have distrained for the rent due for both shares, and the action be brought against one, he should avow for his own share, and for the other share make cognizance as bailiff of his co-tenant.^ If, however, the defendants make cognizance, first, as bailiffs of A. and B., and, secondly, as bailiffs of A. ; B. will not be a competent witness for the defendant to sustain the second cognizance, though the defendants gave no evi- dence to sustain the first cognizance, and offered to abandon it.^ 1 Kogers v. Arnold, 12 Wend. 30. 2 Bemus v. Beekman, 3 Wend. 667. " Brown v. Dean, 3 Wend. 208. * Rogers v. Pitcher, 1 Mass. R. 541 ; 6 Taunt. R. 202. 5 Harrison v. Barnby, 5 Term R. 246. " Pallen v. Palmer, 5 Mod. 73 ; 12 Ibid. 26. ' Gridlestone v. McGowran, 1 Car. & K. 702. CH. XV.] THE ACTION OF REPLEVIN. 539 An avowry by an executor, must show affirmatiyely, that the rent fell due before the testator's death. ^ Where the defendant in his avowry averred that the plaintiff, as his tenant, held and enjoyed certain premises, for the space of seven years and six months, under a certain demise, and at a certain rent ; and by the evidence it appeared that the premises were held by the plaintiff only six years and six months, the variance was adjudged to be fatal.^ It is not necessary to aver that the rent continued in arrear at the time of making the avowry.^ Nor is the sum stated in the avowry to be due for rent, material ; for if it appears that less rent is due than defendant has avowed or made cognizance for, he is yet entitled to recover for so much as is due.* But where the avowry is for parcel of a year's rent or penalty only, it ought to show that the residue has been satisfied or discharged, otherwise it will be bad on demurrer.^ If the avowry be for a certain amount, part whereof is not due at the time of the distress, and judgment is entered for the whole, it will be error ; but it may be cured before judgment by abating the avowry as to the part not yet due.® An avowry justifying the taking a distress for the rent of ready-fur- nished lodgings, is good ; it having been determined that a land- lord is entitled to distrain for the rent of ready-furnished lodgings.'' And where the husband distrains and avows for rent arising from the land of the wife, without joining her in the proceeding, he must show affirmatively that the rent accrued after the marriage, for this cannot be intended ; and if that fact be not shown, the objec- tion, may be taken at the trial.^ According to the practice of Pennsylvania, an avowry need not state for what lands the rent arose, nor when it became due.^ § 761. An avowry showing a conclusive bar to the action, is a 1 "Wright V. Williams, 5 Cow. R. 338, 501. ^ Tice V. Norton, 4 Wend. 663. 3 Clark V. Dayis, 7 Taunt. 72. " Per Ld. Ellenborougli in Forty v. Imber, 6 East, E. 437. ^ Shepherd v. Boyce, 2 Johns. R. 448 ; Hunt v. Baines, 4 Mod. E, 402 ; John- son V. Baines, 12 Ibid. 84; Cro. Car. 104. 8 1 Saund. E. 285, u. 6, 8 ; Harrison v. Barnby, 5 Term E. 248. 7 Newman v. Anderton, 2 Bos. & Pul. N. E. 224. ^ Decker v. Livingston, 15 Johns. E. 479. " Albright v. Pickle, 4 Yeates, 264 ; Weidell v. Eosenbeny, 13 S- & R. 180. 540 LAW OF LANDLORD AND TENANT. [CH. XV. perfect pleading requiring an answer, although it iramediately foUoiivs a plea of property in a stranger ; and it is not to be consi dered as matter, pleaded to induce a return of the property ; a party under such plea being entitled to a return Tvithout avowry or cognizance.^ But an avowry of taking goods off the demised premises, for rent arrear, should show affirmatively that posses- sion continued on the part of the tenant, if the lease has expired ; or it will be bad on general demurrer.^ Both parties being actors in replevin, the plaintiff in respect of his action, and the defendant in consequence of his having made the distress, being a claim of right, and the avowry in the nature of a declaration, either may notice the cause for trial ; yet, at common law, neither can move for judgment as in case of nonsuit.^ And the jury may give such damages as they think the party is justly entitled to for the injury sustained.* Where a plaintiff in replevin to an avowry for rent, pleads a tortious eviction by the landlord, such plea is not sustained by proof that the landlord entered by virtue of summary proceedings for the non-payment of rent. And although such entry be found by special verdict, the tenant is not entitled to judgment in this action for goods subsequently taken as a distress for rent, where he pleads a tortious eviction. To enable him to avail himself of such entry in bar of a distress for rent, he should specially plead the resort of the landlord to the other remedy. But, on the contrary, the landlord under such verdict, is entitled to judgment non obstante veredicto.^ § 762. If the plaintiff recovers, he has judgment for damages only, provided the goods have been delivered to him.^ But the judgment for the avowant, or person making cognizance varies in different cases ; it may be at common law pro retorno Jiaiendo, or founded on the statutes.' If the property specified in the declara- tion shall not have been delivered to the plaintiff on the replevin. 1 The People v. New York, C P., 2 Wend. 644. 2 Burr V. Tan Buskirk, 2 Cow. E. 263. 3 1 Johns. Cas. 247 ; I Wms. Saund. 336. * Dorsey v. Gassaway, 2 Har. & Johns. 402 ; Brace v. Leonard, 4 Mass. E. 614. " McCarty & al. v. Hudsons, 24 Wend. E. 291. 6 Easton v. Worthington, 5 S. & E. 131 ; 5 Mass. 343 ; F. N. B. 69. ' See the cases in 1 Saund. E. 195, n. 3 ; 2 Saund. 286, n. 5. CH. XV.] THE ACTION OE EBPLBVIN. 541 he shall, in case the judgment is in his favor, be entitled, in addi- tion to his judgment for damages and costs, to a further judgment, that the property be returned to him without delay, or, in default thereof, that he recover from the defendant the value of such goods and chattels, as assessed by the jury on the trial, or upon a writ of inquiry.^ If the property specified in the writ have been delivered to the plaintiff, and the defendant recover judg- ment, the judgment shall be, that the defendant shall have return of the property replevied, unless he elects to waive such return ; and also that he recover damages for the detention of the pro- perty, to be ascertained by a writ of inquiry.^ But without the aid of this statute, where there is no other plea than non cepit, the defendant is not entitled to a return, for this is not a plea involving the merits of the action ; and he can only have a return in cases where he adds an avowry, or cognizance, or some plea leading to the conclusion, that taking the goods was not merely unjustifiable, but that the defendant was rightfully in possession of them, at the time they were taken out of his possession by the writ of replevin.^ And it is now held, that a defendant in reple- vin, who succeeds on the trial under the plea of non detinet, is not entitled to a return of the property, or its value, unless he proves property in himself, as well as detention ; nor then, per- haps, unless he has pleaded or given notice of such matter as will entitle him to a return.* § 763. The execution is the same as in ordinary cases, hj fieri facias, if the plaintifi" have judgment, for damages and costs ; or if the defendant, for the arrears of rent or the value of the distress. And if the defendant have judgment for a return, he may have a writ de retorno habendo for a return of the things distrained, besides &fi.fa. for his costs.^ The sheriff, however, is not bound to execute the writ for a return, unless some person attend, on the behalf of the defendant, to show him the goods ; and it is a 1 2 E. S. 530, § 49. 2 Ibid. 531, § 53 ; Clark v. Adair, 3 Harr. E. H3. 3 The People, &c. v. Niagara, C. P. 4 "Wend. 217. ' Pierce v. Van Dyke, '6 Hill, (N. Y.) E. 613. 5 3 Archb. Prac. 84. 46 542 LAW OF LANDLORD AND TENANT. [CH. XV. good return to the writ, that no person attended for the purposes^ At common law, if to a writ of retorno hahendo the sheriff return that the goods are eloigned, (that is, conveyed to places unknown to him, so that he cannot execute the writ,) the defendant might sue out a capias in withernam, requiring the sheriff to take other cattle of the plaintiff, to the value of the cattle eloigned, and deliver them to the defendant, to be kept by him until the plain- tiff should deliver him the cattle originally replevied. If this writ was returned nihil, after an alias and pluries, the defendant might sue out a scire facias against the plaintiff's pledges, to show cause why the price of the cattle, &c., eloigned, should not be made of their lands and goods, and rendered to the defendant. If no good cause was shown, a writ issued to take the cattle, &c., of the pledges ; but if they had none, a scire facias issued against the sheriff himself, requiring him to show cause why he should not render to the defendant cattle, &c., to the value of those eloigned.^ This circuitous method, however, of proceeding against the sheriff might be avoided, by bringing an action on th« case against him for damages, on the return of the elongata.^ The writ of withernam is a common-law reprisal, calculated to take from the defendant goods to such an amount as will secure the return of the plaintiff's ; and follows a return of elongata on the writ of replevin, without an alias or pluries, in the State of South Carolina, under the statute of that State, passed in 1808.* It is incident to the common-law action of replevin, and is in force in all those States that have not expressly abolished it.^ Section III. Action of Trespass. § 764. If the tenant should be turned out of, or disturbed in, his possession of the demised premises, by a stranger having no 1 2 Satind. E. 74, b. 2 1 Ibid. 195, n. 3. 8 2 Wm. Black. 1220 ; 1 B. & P. 378 ; 2 Ibid. 107 ; 1 New R. 292. * Swann v. Shemwell, 2 Har. & Gill, E. 283. 5 Gould V. 'Warner, 3 Wend. 54 ; Hart v. Tobias, 2 Bay, E. 408 ; Huggerford D.rord, 11 Pick. E. 223. OH. XT.] ACTION OP TRESPASS. 543 title, his only remedy is by an action of ejectment or trespass, if he is actually put out ; or by trespass or case, (according to circumstances,) if he is merely disturbed in the possession. Tres- pass is the proper remedy to recover damages, for an illegal entry upon, or an immediate injury to, property real or per- sonal; while case lies for consequential damages to such pro- perty, or to some right or privilege incident thereto. But if the tenant is put out of possession by a stranger having title, -where the ouster comes -within the meaning of the landlord's covenant and agreement for quiet enjoyment, express or implied, he may also proceed against the landlord for damages, by action upon such covenant or agreement.^ § 765. The right to land is exclusive, and every unwarranted entry thereon without the owner's leave, whether it be inclosed or not, or without the license or authority of law, is a trespass.^ Thus, an entry on land, without claim or color of title ; ^ under a void lease ; * or a mere executory contract ; ^ or a continuance there, after a request to leave ; or even going upon another's land, and taking away one's own property, is a trespass.^ So for any entry on a highway, inconsistent with the right of the owner of the soil, and not necessary to the right of way of the public ; "^ or where one enters and builds upon the land of ano- ther, who enters upon the intruder ; and the intruder, in his turn, enters, and turns the owner out of possession, the owner may, in either case, maintain this action.^ Any direct injury to any thing growing, or placed upon the land, is an injury to the land itself. By the Revised Statutes of New York, every person who shall cut down or carry off any wood, underwood, trees, or timber, or shall girdle or otherwise despoil any trees on the land of ano- 1 The Seneca Railroad Co. v. The Auburn Railroad Co. 5 Hill, (N. Y.) R. 170 ; Burr. 556, 1114 ; 5 East, 485 ; 11 Ibid. 56. ^ 19 Johns. R. 385 ; 3 Black. Com. 209 ; 12 Johns. R. 408 ; Commonwealth v. Peters, 2 Mass. R. 127. 8 2 Johns. R. 22. * 9 Ibid. 362. 6 7 Cow. R. 229. 8 14 Johns. R. 406. ' 15 Johns. R. 447 ; 1 Cow. 238. 8 7 Cow. R. 220. 544 LAW OF LANDLORD AND TENANT. [CH. XV. ther person, -without the leave of the owner thereof, or on the land or commons of any city or town, without having any right or privilege in such commons, and without license from the corpora- tion, or proper officers of such city or town, shall forfeit and pay to the owner of such land, or to such city or town, treble the amount of the damages which shall be assessed therefor, in an action of trespass. But if, upon the trial of any such action, it shall appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own ; or that such wood, trees, or timber, were taken for the purpose of making or repairing any public road or bridge, by the authority of a com- missioner or overseer of highways ; judgment shall be given to recover only the single damages assessed by the jury. And if any person be disseized, ejected, or put out of any lands or tene- ments in a forcible manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the damages assessed by the jury.^ § 766. The owner's license to enter may frequently be pre- suvied, and will then be equally valid as if expressly given ; and, for all purposes of this action, a tenant in possession is to be considered the owner. But whether express or implied, the license may at any time be revoked, unless it has been founded on such a valuable consideration as would support a contract, and a subsequent entry would then become a trespass.^ A parol license to do an act on one's own land however, affecting inju- riously the air and light of a neighbor's house, is not revocable by such neighbor after it has once been acted on ; nor is such license within the statute of frauds.^ And when a license is given, it necessarily implies a right to do every thing, without which the act could notbe done.* In general, where an erection is made upon the land of another, without his consent, and after- wards continued there without such consent, the continuance 'is 1 2 E. S. 338, § 1, 2, 4. 2 10 Johns. R. 246. 8 3 Kent, Com. 451. ' Willes, 195. CH. XV.] ACTION OF TRESPASS. 545 deemed a fresh trespass ; and the party injured may maintain an action of trespass from time to time, even although he brought an action for the original erection and recovered damages.^ But where A. and B., owning the adjoining lands, agreed that B. might cut ditches on A.'s land-, and under A.'s direction, and con- tinue so long as he should be satisfied ; and the ditches were dug and used during A.'s lifetime, and for three years afterwards, without complaint ; it was held, that although the license to use the ditches on A.'s land expired on his death, and the person suc- ceeding to his title might fill them up, if he thought proper to do so, he could bring no action against B. without first giving rea- sonable notice to discontinue the use of the ditches.^ § 767. Authority to enter on lands is given, by law, in many cases ; as to see that the tenant keeps the premises in good repair, according to agreement, or to levy a distress ; ^ but if, in such case, the authority is abused, at common law the party becomes a trespasser from the beginning, and his original entry, _ and every act done in pursuance of it, is viewed in the same light as if the law had not given him authority in the first instance.* And, in strictness, if the landlord accidentally com- mitted an irregularity, either in taking the distress, or in any sub- sequent proceeding, (whether for rent or damage feasant,) he thereby became a trespasser from the beginning, and was imme- diately liable to an action of trespass on the part of the tenant.^ Such is still the law, in regard to a distress for damage feasant ; but as to a distress for rent, trespass lies only where the distress is altogether wrongful and illegal, ah initio ; as where rent is due, or made after a tender of the amount due,^ or, in general, wherever the particular act of irregularity amounts to a trespass, independent of the previous proceedings. '^ Thus it lies for turn- ing the tenant out of possession, under a distress wai'rant ; or, if 1 Holmes v. Wilson, 10 Ad. & El. 503. '^ Carter v. Page, 4 Ii-edell, 424. 3 10 Co. 46. * Allen V. Crofort, 5 "Wend. E. 506 ; Oxley v. Watts, 5 Term E. 12. 5 Ld. Eay. 1424 ; Dye v. Leatherdale, 2 Wils. 20 ; Dodd v. Monger, 6 Mod. 216. 15 F. N. B. 88 ; 4 Term E. 565 ; 6 Ibid. 298. ' 5 Taunt. E. 198; 2 Wm. Black. 1218. AG* 546 LAW 0¥ LANDLORD AND TENANT. [CH. XV. the tenant tender the rent and expenses, after the distress, but before impounding, for subsequently removing the distress ; ^ but not for selling after a tender, where such tender is made after the impounding.^ And though the f arty may, in these cases, bring trespass, he may also waive the trespass, and bring case.^ § 768. Either trespass or trover will lie in the case of a dis- tress for rent, where there has been an illegal taking ; as for dis- training implements of trade, or beasts of husbandry, where there was a sufficiency of other property ; * or a horse, while his rider was upon him ; ^ or if the outer door be shut.^ For the statute which enacts that a party distraining for rent shall not be a tres- passer from the beginning, only relates to irregularities after a lawful taking.'^ So that wherever there is an abuse of authority given by law, the party injured may not only prosecute his action of trespass for the illegal entry, but may also sue in trover, and recover the value of the goods. But an abuse of an authority in fact, that is, of an authority given by the party, does not render a man a trespasser ab initio. Thus if a bailee of chattels abuse his authority, he is only liable in case for such abuse. And if a distress taken for a rent-charge is abused, the distrainor does not become a trespasser ab initio ; because such distress must, at common law, be made under an authority in fact, as a right to distrain is not, by such law, incident to a rent-charge.^ The rea- 1 Virtue V. Beasley, 1 M. & E. 21. 2 8 M. & W. 415 ; 1 Scott, N. E. 524 ; 4 D. & P. 9. 8 1 B. & C. 145, These rules of law, with a salutary modification as to a tender of amends, passed into an enactment in the Eevised Statutes of New York, which declared — When any distress shall he made for rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not therefore be deemed unlawful, nor the party making it a trespasser from the beginning ; but the party aggrieved may maintain an action of trespass, or of trespass on the case, and may recover full satisfaction for the special damages he may have sustained by such irregularity, or such unlawful act, with full costs of suit, and no more, unless tender of amends hath been made by the party distraining, or his agent, before such action brought; which tender shall prevent the recovery of any costs in such action. 2 E. S. 505, 4 28; 11 Geo. 11. 6, 19,5 19' * F. N. B. 88 ; 4 Term R. 565 ; 1 Burr. 579. 6 G Term E. 138. 6 1 East, E. 139 ; 11 Ibid. 395 ; 2 Campb. 115. f 1 H. Black. 13 ; 1 Esp. E. 382. 8 3 Stark, on Evid. 1108, 3d edit. CH. XT.] TRESPASS ON THE CASE. 547 sons of this difference, between the abuse of an authority in law and an authority in fact, is said to be, that when the law gives an authority, it is on condition only that it shall be used for the purpose allowed by law, and the law judges of and infers the original intention of the party from his subsequent acts ; "teTl where the party authorizes a particular act, he cannot, for any subsequent abuse, punish in respect of that which was done by his own license. (a.) Trespass on the Case. § 769. According to strict common-law principles, the distinc- tion between case and trespass, formerly adverted to, becomes important when determining upon the proper remedy for an injury ; for if a plaintiff declare in trespass, when his action should be case, he will be nonsuited at the trial. His declaration, however, will be held sufficient if it contains enough to maintain case, although it may commence by miscalling the action trespass.^ As a general rule, where a statute gives damages for an injury, and does not mention the form of action, case lies.^ But where an action was sustainable at common law, and a statute also gives an action, without expressly or impliedly taking away the com- mon-law right, an action may be maintained at common law, as well as upon the statute.^ The difficulty which frequently arises, in determining whether the action shall be case or trespass, according as the injury resulting from the act of the defendant is consequential, or immediate and direct, was obviated in IJTew York, by the Revised Statutes, which declared — Whenever, by the wrongful act of any person, an injury is produced either to the person, personal property, or rights of another, for which an action of trespass may be maintained, an action of trespass on the case may also be brought, to recover damages for such injury ; whether it was wilful, or accompanied by force, or not ; and whether such injury was a direct and immediate consequence 1 The Seneca Eailroad Co. v. The Auburn Railroad Co. 5 Hill, (N. Y.) R. 170. 2 6 Mod. 26 ; 7 Term R. 36 ; 1 N. & P. 104. 3 Com. Dig. Action on Statute, C. 548 LAW OF LANDLOED AND TENANT. [CH. XV. from such wrongful act, or only consequential.^ According to this- statute, therefore, case will always lie, though trespass may not ; and the practitioner need not hesitate in any emer- gency to shape his action in case. But there was no objection to adopting this course of practice, as a general thing, in any case ; for an action on the case is better calculated to bring out the truth of a case than any other. The Code of Procedure, in that State, as we have seen, has abolished the distinction altogether ; but as the common-law doctrine is still important in those States where this Statute has not been adopted, it will be proper to exhibit it still further in detail. § 770. We have said that case is the appropriate remedy, where the injury is not immediate but consequential. Thus it lies against a sheriff for removing goods from the demised pre- mises, without satisfying the landlord's claim for a year's rent.^ But he is not liable unless he knew that rent was due ; although express notice is not necessary to render him liable, in which respect, we have observed, the law of New York differs from the English law.^ Case is also the proper remedy where a distress for rent is either illegal or irregular ; or at the suit of a lodger, whose goods are taken upon an excessive distress by the superior landlord ; and even in those cases where trespass may be main- tained case also lies, as a party may waive the trespass and bring case.* So it lies to recover damages, for an injury sustained by the plaintiff in his property, by reason of a nuisance, or in the obstruction of a highway ; ^ for not properly covering an old shaft of a mine, whereby the plaintiff's horse fell down and was killed ; ^ for not properly covering a coal-hole, or cellar entrance, sewer, or railing of an area opening into the highway, or the like ; '^ and that the premises were in the same condition before the defendant came into possession of them is no defence.^ 1 2 R. S. 553, § 16. 2 Eeed v. Hoyt, 6 M. & W. 410 ; Foster v. Cookson, 1 Gale & D. 52 ; 3 B. & A. 440. 3 3 Taunt. E. 400 ; 3 B. & A. 645. * Bamecomb v. Brydges, 1 B. & C. 145 ; 2 C. & P. 374. 5 Marriott v. Stanley, 1 Scott, N. K. 392 ; S. C. 1 M. & G. 568. 6 Lybray v. White, 1 M. & W. 435. 7 2 H. Black. 349 ; 4 Taunt. 649 ; 5 B. & C. 559. ' Coupland v. Hardingham, 3 C.impb. R. 398. CH. XV.] TRESPASS ON THE CASE. 549 § 771. For an abuse of a distress, trespass is the proper remedy ; ^ but for impounding cattle in a wrong county, the land- lord will not be liable in trespass.^ Nor will trover lie for goods irregularly sold under a distress ; ^ or for an excessive distress ; * since the statute gives another remedy ; and trespass only lies where there has been some act done which, in itself, amounts to a trespass, — the election given by the statute being so construed.^ So trespass cannot be maintained for taking an excessive distress, where the distress was lawful, the whole being one entire aet ; ^ nor for an irregular distress, where the irregularity complained of is not in itself an aet of trespass, but consists merely in the omission of some form required in conducting the distress, such as not procuring goods to be appraised before they are sold ; but case is the proper remedy in all such cases.'^ Yet if the land- lord fails to show a right to distrain, — as if the affidavit accom- panying the warrant of distress is defective, — he is liable in this action.^ § 772. The act of Pennsylvania, of 1792, provides that where a distress is made, when no rent is in arrear, the owner of the goods may, by an action of trespass or on the case, recover dou- ble the value of the goods. But, notwithstanding this provision, it has been held that the party aggrieved may maintain action at common law, for entering his close, &c., in which he may recover damages to a greater amount than double the value of the goods.^ A tenant from year to year, being desirous of letting his house for a quarter, quitted and left it locked, with authority to the landlord to let it during his absence, if an opportunity offered, and, for that purpose, left the key with a neighbor ; an opportu- nity offered of letting the house, but the person who had the key 1 Hntchings v. Chambers, 1 Burr. 590. 2 Gimhert v. Pelah, 2 Str. 1272. =• "Wallace v. King, 1 H. Black. 13. * 1 Mood. & E. 193. 6 Ladd V. Thomas, 4 P. & D. 9 ; 11 East, 395 ; 2 Campb. 115. " Lyme u. Moody, 2 Str. 851. ' Messing v. Kemble, 3 Campb. N. P. C. 115 ; Marquissce v. Ormston, 15 Wend. E. 368. 8 Ibid. And see Alcott v. Prazer, 5 Hill, (N. Y.) E. 562. 9 Eees V. Emerick, 6 S. & E. 286. 550 LAW OE LANDLOKD AND TENANT. [CH. XV. having absconded, the landlord entered by placing a ladder against the house, and raising the first floor window ; and, after showing the house, left it in the 'same state as before. The house was afterwards entered by persons unknown, and some of the tenant's wearing apparel and furniture stolen ; and the tenant having brought an action of trespass against the landlord, for breaking and entering the house and leaving it insecure, in consequence of which his furniture and apparel were stolen, it was held that a plea of leave and license was no answer to the action.^ So in a case where the landlord, upon making a distress, turned the tenant's family out of possession, and continued in pos- session himself, after the rent was paid, he was held to be guilty of a trespass.^ § 773. If a man sells a chattel, being upon his land, he at the same time passes to the vendee, as incident to such sale, a right to go upon the premises and take away the subject of his pur- chase, without being considered a trespasser.^ So if a man, in virtue of his license, erect a building on another's land, this license cannot be revoked so entirely as to make the person who erected it a trespasser, for entering and removing the building after the revocation.* In general, whenever the act complained of is under regular process of law, case is the only remedy, and trespass will not lie ; ^ but where it is not under color of process, the remedy is trespass, and not case. Thus if the process be irregular ; ^ or if the court has no jurisdiction ; ^ or exceed its jurisdiction ; ^ the action should be either trespass or trover ; that is, trespass for the act itself, and trover if the goods be detained, to recover them back. If, however, a proceeding is instituted in a court not having jurisdiction, yet if it were malicious, or un- founded, it has been held that the plaintiff may bring either case or trespass.^ 1 2 Dow. & Ry. 714. 2 Etherton v. Popplewell, 1 East, R. 139. 8 11 East, R. 366. « 6 Term R. 388. . 6 1 Ibid. 544 ; 2 Ibid. 225 ; 3 Ibid. 185. 8 1 D. & R. 97 ; 1 Chit. R. 304. ' 2 Wils. R. 382; 10 Co. 76, a; 7 B. & C. 536. 8 1 B. & C. 169. » 2 Wils. R. 302. CH. XV.] TRESPASS ON THE CASE. 551 774. The property affected must, in general, be sometMng tangible and fixed, as a house, room, outhouse, or other building, or knd ; even though the land be not fenced in from the property -of others, or be a highway ; the term close being technical, and signifying the interest in the soil, and not merely an inclosure in the common acceptance of the term.i And trespass lies though the door of a house be open, or the locus in quo uninclosed.^ If the land be covered -with water, the plaintiff should allege that the trespass was upon his close covered with water ; and though it may be alleged that the defendant broke and entered a several fishery, yet if the plaintiff's interest is confined to the water only, trespass will not lie, but the remedy is case.^ If trees are excepted in a lease, the land on which they grow is excepted also, and the landlord may enter to fell and take away the trees;* but an exception of underwood does not except the land on which it grows.^ And the possession remaining in the lessor, or other party entitled to the trees, he may maintain trespass against the lessee, or a stranger, for breaking and entering his close and cut- ting them down, and trespass de bonis asportatis for carrying them away ; but the lessee cannot maintain any action, because he has no interest in the trees.^ Yet, where the trees are not excepted in the lease, the tenant has a right to their shade and fruit ; and a sufficient possession to maintain trespass against any party, either landlord or stranger, for cutting them down.'^ But when cut, they belong to the party who has the next estate of inheritance in the land, or the tenant for life without impeach- ment of waste, (if there be one,) and the tenant cannot bring trespass de bonis asportatis for carrying them away ; such action must be brought by the owner of the next estate of inheritance, or tenant for life without impeachment of waste .^ And if a stranger cut them down, both landlord and tenant, or party enti- ' Van Rensselaer a. Van Rensselaer, 9 Johns. E. 377; 6 East, 154; 7 Ibid. 207 ; 1 Burr. 133. 2 Co. Lit. 4 b ; Bac. Abr. Trespass, F. 679. 8 Co. Lit. 4, b ; Ibid. 5, b ; Yelv. 103. * 1 Saund. 322, b. 5 Leigh V. Heath, 1 B. & Ad. 622. 6 Rolls V. Rock, 2 Selw. N. P. 1287 ; 1 Ld. Ray. 552. 7 1 Saund. R. 322, b. 8 Evans v. Evans, 2 Campb. 491 ; 2 M. & S. 499. 552 , LAW OP LANDLORD AND TENANT. [OH. XV. tied to the trees subject to the lease, may each maintain an action against him for his respective loss, and the one action is no bar to the other. 1 So a grantee of trees may maintain this action against the owner of the soil, for cutting them down ;2 or a lessee for years, who, on the expiration of the tenancy, is, by the cus- tom of the country, entitled to the away-going crop.^ And if a man lets a farm to be worked upon shares, the landlord may have this action against a stranger for treading down the corn ; * or the landlord and tenant may maintain a joint action.^ § 775. An action on the case for damages is the proper remedy, wherever the plaintiff has merely a reversionary interest in the property, the possession being in another, for the erection of any kind of nuisance ; ^ or for an obstruction of windows, where the plaintiff has a right to the access of light ; '^ even though the obstruction arises from building on a party-wall ; ^ but there must be a sensible diminution of light, as no action lies for merely obstructing a prospect.^ So it lies for not repairing a privy near to plaintiff's house ; for not emptying a cesspool or sewer ; ^^ for manufacturing candles, or erecting a forge ; ^^ for undermin- ing a house ; ^^ for obstructing the entrance to a house ; ^^ for not sustaining a sea-wall, whereby plaintiff's property was injured ; ^* for cutting down trees, to the shade of which the plaintiff was entitled, as occupant of the messuage ; for keeping a slaughter- house near the plaintiff's house, or erecting a building from which the water ran on plaintiff's house, whereby it was injured ; for continuing an iron manufactory, and making noises and annoying 1 1 Sannd. E. 319, e. 2 Clapp V. Draper, 4 Mass. E. 266. » Stultz V. Dickey, 5 Binn. 285. « Bui. N. P. 85 ; 4 Burr. 1827 ; Co. Lit. 4, b. 6 Foote & Litchfield v. ColTin, 3 Johns. E. 216. « 1 Ld. Eay. 87, 1399 ; Str. 624. ' 2B.& Ad. R. 97. 8 Wells V. Ody, 1 M. & W. 452. " 1 Mod. E. 55 ; 9 Eep. 58, b. M Eussell V. SUenton, C. B. 20 L. J. E. 269, Trin. Tr. 1842. 11 1 Lutw. 69. 12 2 Saund. 397 ; 2 Dowl. P. C. 164. 13 4 Term E. 794. '* Mayor of Lyme u. Henley, 1 Scott, 29 ; 1 Bing. N. C. 222 ; 3 B. & A. 77. CH. XT.] TRESPASS ON THE CASE. 553 tlie plalntifif in the occupation of his house ; ^ or for excavating the defendant's ground too close to the foundations of the plain- tiff's house, (he having acquired a right to the support of the defendant's land,) -whereby its fall was accelerated.^ § 776. Case is also the appropriate remedy for any disturb- ance, or other wrong, to incorporeal property ; as of a franchise, or right of common ; for the obstruction of a private way ; the neglect to repair a way which the defendant was bound to keep repaired ; or by a reversioner, for an injury done to his reversion- ary interest, by building thereon.^ Also for the disturbance of an easement, or privilege over another's land ; or in a sink, gate- way, or washing-place, in another's ground ; * or for obstructing the use of the door-bell, knocker, skylight, staircase, or water- closet, by a lodger in a house.^ A tenant may also render himself liable to his cotenant for damages in this action, by obstructing him in the use of the premises. In a case arising in the city of New York, the first story, with the basement and under cellar of a four-story store was leased to the plaintiffs, and the three upper stories to the defendant, at the same time, each with the appurtenances. The entrance to the upper stories was in front, over a short entry leading to a staircase. This entry was separated from the residue of the first floor by three folding- doors, with bolts to fasten on each side. There was a hatchway in the floor of the same entry, leading to the basement and cellar, over which hatch a tackle and fall were placed, to raise and lower goods, the wheel of which was in the attic, and was worked by ropes passing down through the respective floors. The keep- ing of the folding-doors open in business hours was a great advan- tage to the occupant of the first floor. The opening of the hatch in that floor obstructed the passage to the upper stories, unless persons passed through the folding-doors. In a contest as to the 1 Gale, R. 61 ; 2 Bing. N. C. 134. 2 3 B. & Ad. 871 ; 1 A. & E. 498 ; when not, 8 Scott, 1. 3 Seneca Railroad v. The Auburn Raih-oad Co. 5 Hill, 170; 1 Sannd. E. 346, a ; 1 Scott, E. 526 ; Com. Dig. Action on the Case, Disturbance, A. 2 ; 2 Saund. E. 113, 172, a. * Wilson V. Smith, 10 "Wend. R. 324 ; 5 B. & A. 361 ; 5 B. & C. 221 ; 8 Ibid. 288. 5 Underwood v. Burrows, 7 C. & P. 26 ; 7 Bing. N. C. 855. 47 554 LAW OF LANDLORD AND TENANT. [OH. XV. rights of the respective parties, the Superior Court of the city of New York held, that the tenant of the first and under stories had the right to use the hatchway in the entry, and the tackle and fall for depositing the goods in the basement and cellar and ele- vating them therefrom, making use of them in good faith, and not keeping the hatch open unnecessarily ; that the tenant of the first floor had the right to keep the folding-doors open during business hours in the daytime, free from the control of the tenants of the lofts, and that each had the right to close and fasten them at night ; and that the tenant of the lofts might pass in and out through the folding-doors, when the hatchway was in use by the tenant of the first floor.^ § 777. Where a tenant, under color of the law of fixtures, wrongfully severs from the freehold, articles put up by himself during the term, or which have been demised to him together with the premises, the landlord cannot, pending the lease, sup- port an action against him for trespass quare clausum /regit? But where fixtures have been severed from the freehold, and reduced again to a chattel state, the party in whom the right of property is vested, from the time of severance, may support tres- pass de bonis aspoHatis for the removal, for the general property of personal chattels draws to it the possession. The reversioner may, therefore, sustain this action against a tenant in possession, pending a lease, for the removal of things -which the tenant, either from the circumstance of their having been demised to him, or for any other reason, has no right to take away.^ Yet a tenant, after the severance of articles to vfhich he is not entitled as fixtures, cannot maintain trespass against his landlord, or a stranger, for removing them.* And if the tenant is entitled to emblements after the determination of his term, he may maintain trespass against his landlord for forcibly preventing his taking them away.^ 1 Browning & Hull v. Dalesme, 3 Sandf. R. 13, per Oakley, J. "" Dyer, 121; Co. Lit. § 71. 8 TJdal V. Udal, Aleyn, 82 ; 11 Co. 81 ; 2 Chit. R. 636 ; Farrant v. Thompson, 5 B. & A. 826. « Ibid; Evans v. Evans, 2 Cowp. N. P. C. 491. s Stewart v. Doughty, 9 Johns. E. 108. If any person be disseized, ejected, or pu,t out of any lands or tenements in a forcible manner, or, being put out, be after- CH. XV.] TRESPASS ON THE CASE. 555 But a tenant ■who wrongfully continues in possession of the pre- mises after the expiration of his term, although he does not aban- don his right of property to the fixtures, is still liable to be sued in trespass quare clausmn f regit if he enters to take them away, for his property in the fixtures does not give him a right of being upon the premises.^ § 778. Any unlawful taking of, or injury to personal property, of a forcible nature, amounts to a trespass, even though the defendant had no intention of committing a trespass ; for the injury forms the ground of action, the intention being wholly immaterial.^ And though the property is only taken for an instant, or the goods be restored, still the action lies, and the restoration of the goods only goes in mitigation of damages.^ It lies for injuries to all reclaimed animals, even those /ej'dE naturce;* as if a hare be taken or killed on the plaintiff's land, for while on his land he has a local property in it. But the action will not lie if it be driven off his land and killed, for his property in it is then determined, unless he immediately pursues it ; in which case the immediate pursuit continues his local property, and it becomes unlawful for the party killing it to take it away.^ § 779. Trespass vi et armis does not lie against a lessee for years, for cutting down timber-trees, and carrying them away, and selling them ; but if after cutting them down he let them lie, and afterward carry them away, so that the taking and carrying away be not one continued act, but there is time for the property of the divided chattel to settle in the lessor, trespass will lie.® wards holden and kept out by force, or with strong hand, he shall be entitled to maintain an action of trespass, and shall recover therein treble the damages assessed by the jury, or by a justice of the peace, in cases provided by law. 2 K. S. 2d edit. 262, § 4. 1 Holmes v. Tremper, 20 Johns. E. 32 ; Penton v. Hobart, 2 East, 88. ^ Seneca Railroad Co. v. Auburn Eailroad Co. supra ; 2 Wils. 309 ; 2 Black. R. 833 ; 7 B. & C. 486. As to what particular acts' amount to a trespass, and what not, see Hartley v. Moxham, Q. B. 21 L. J. E. 57. 3 Price V. Heyler, 4 Bing. 597 - 604 ; Bac. Abr. Trespass, E. 669 - 674. ^ 1 Saund. R. 84 ; Cro. Jae. 262 ; 5 B. & C. 879. 6 Ibid. ; 11 Mod. E. 75. ^ Herlakenden's case, 4 Co. ; Moor, 248. 556 LAW OF LANDLORD AND TENANT. [CH. XV. And the reason why he is not otherwise liable is, that he has a special property or interest in them for repairs and shade ; and, therefore, if the trees be excepted in the lease, it will make him a trespasser equally -with a lessee at will ; and it will lie against tenant at will, because such acts determine the will ; but against a tenant by sufferance the lessor cannot have trespass before entrance. And though trespass will lie against the lessee for years for cutting the trees where they are excepted in the lease, yet if he put in his cattle to feed, and they bark the trees, tres- pass will not lie.^ It may also be observed, that if a person hav- ing a legal right of entry on land enter by force, though he may be indicted for a breach of the peace, yet he is not liable to a pri- vate action of trespass for damages, at the suit of the person who has no right, and is turned out of possession.^ And where a tenant holds over his term, and the landlord enters by force and turns him out, he cannot maintain trespass against the landlord.^ But a party who has obtained possession by force has not a sufS- cient possession to maintain trespass against the owner for a remo- val of his goods off the land.^ § 780. In trespass to personalty, it is essential that the plain- tiff be in possession, or entitled to the immediate possession of the property, at the time the trespass was committed ; for it is a pos- sessory action, and lies only in favor of the party who has such immediate right of possession. And if the right of possession at the time is in another, the plaintiff's interest is merely reversion- ary ; and trespass will not, in general, lie by a reversioner.^ The general owner, who has an absolute property in chattels, may maintain trespass, though he has never had actual possession, 1 Co. Lit. 57 ; 1 Raym. 739. 2 Erwin v. Olmsted, 7 Cow. R. 229. ^ Hyatt V. Wood, 4 Johns. E. 150 ; Ives v. Ives, 13 Johns. K. 235. * Brown v. Dawson, 4 P. & D. 355. " Putnam v. Wylie, 8 Jojins. E. 432 ; Smith v. Miller, 1 Term E. 480 ; Ward V. Macauley, 4 Ibid. 489 ; 2 East, 88. When a reversioner sues for an injury to his reversion, he must show an injury so permanent in its nature as to affect the value of his reversionary interest ; for if the injury only affects the possessory interest, the party, in possession should sue. Bell v. Twentyman, 1 G. & D. 223 ; 3 Wils. 361 ; 1 M. & S. 334 i 6 Scott, 691. What amounts to such an injury, see Tucker v. Newman, 3 P. & D. 14. CH. XV.] TRESPASS ON THE CASE. ' 557 if he be entitled to the immediate possession ; because a general property in personalty gives a constructive possession. But if the general owner has given another a special property as against himself, he cannot maintain trespass, because he has no immediate right of possession. 1 The plaintiff must also, at the time of the trespass, have been entitled to the exclusive possession as against the defendant, although the duration of his interest may be limited. Therefore one tenant in common, joint tenant, or parcener, can- not maintain trespass, but only case, against the other, for an abuse of the thing in common, as by holding exclusive possession thereof; but if he destroys it he may maintain trespass, as such destruction amounts to a severance of the tenancy.^ The pulling down of a wall, however, by a tenant in common, in order to rebuild it, does not amount to a destruction if rebuilt.^ And where the defendant hired a steamboat for an excursion to a cer- tain place, the captain navigating her, it was held that the defendant had not such an exclusive possession of the boat as to justify him in forcibly turning out a stranger, whom the captain had allowed to come on board.* ^ 781. A similar rule prevails with regard to trespass upon resllty. A right of property is not always required for this pur- pose, as actual possession is sufficient against any party who can- not show better title, or as against a mere wrongdoer.^ Thus a party in possession of lands under a mere parol license, or even an intruder thereon as against a wrongdoer, may maintain tres- pass.^ And a female servant has such a possession of her bed- room as will entitle her to maintain trespass against a person who wrongfully forces himself into it whilst she is in bed.' So of a 1 Van EeBsselaer v. Radcliff, 10 "Wend. 639 ; 3 S. & E. 513 ; Gordon v. Har- per, 7 Term E. 9 ; 16 East, 33 ; 2 Saund. E. 47, note a. ' Wilson V. Mackreth, 3 Burr. 1824 ; Voyce v. Voyce, Gow, 201 ; 2 Saund. 47, h; 1 T. E. 658. 3 8 Barn. & Ores. 257. * Dean v. Hogg, 10 Bing. E. 345 ; 4 M. & Scott, 188 ; 6 C. & P. 54. 5 Stuyvesant v. Dunham, 9 Johns. E. 61 ; Graham v. Peat, 1 East, E. 246 ; 4 Taunt. 547 ; 4 B. & C. 574. 6 Harper v. Charlesworth, 6 D. & E. 572 ; S. C. 4 B. & C. 574. ' Lewis V. Ponsford, 8 C. & P. 687. 47* 558 LAW OF LANDLOED AND TENANT. [CH. XV. carpenter, in possession of premises to repair them.^ Tres- pass qaare dausum fregit can only be maintained by the per- son -who is in possession of the land, either actually or con- structively, at the time the injury is done ; a lessor, therefore, cannot maintain such action against a stranger, while there is a tenant in possession.^ But where a person is put in possession by the landlord, merely to prevent the trespasses of others, the landlord may bring the action, notwithstanding such agent may have been allowed to cultivate part of the land for himself.^ Nor can the landlord sue an under-tenant in trespass, even for an injury done to the freehold.* An actual dispossession is not necessary, but any unlawful interference with the property of another, or exercise of dominion over it, by which the owner is injured, is suflScient to maintain this action.^ But where a defendant, claiming a sum of money to be due to him from the plaintiff, his lodger, locked up plaintiff's goods in a room which he held of defendant, and in which the plaintiff had put them, kept the key, and refused plaintiff access to them, saying that nothing should be removed until defendant's bill was paid ; the court held there was no such dispossession of the goods as would sustain an action of trespass.^ Where land is vacant, or the actual possession cannot be shown, the person having legal title will be deemed to be in possession, so as to maintain trespass ; " and the landlord of a tenant at will may bring trespass against him for any voluntary waste, because such injury would amount to a determination of the tenancy, and the landlord is entitled to possession.^ § 782. A tenant for years may support trespass against a 1 Hale V. Davis, 2 C. & P. 33. 2 Stuyvesant v. Tompkins, 9 Johns. 61 ; 12 Johns. E. 183; 8 Mass. R. 415; 2 Browne, E. 106 ; 4 Yeates, 218 ; 6 Eand. E. 8 ; 9 Conn. E. 216 ; 1 Wend. E. 466 ; 10 Ibid. 110. " Davis V. Clancy, 3 McCord, E. 422. * Tobey v. Webster, 3 Johns. E. 468. 5 Allen V. Craig, 10 Wend. E. 349. ■ « Hartley v. Moxham, 3 Ad. & El. Q. B. E. 701. ' Van Eensselaer w. EadclifF, 10 Wend. E. 639; 12 Johns. E. 183; 2 Hayw. 402 ; 8 Cow. 115 ; 5 Bing. 7 ; 4 Taunt. E. 517. 8 Suffem V. Townsend, 9 Johns. E. 35 ; 4 Kent, Com. 118. CH. XV.] TRESPASS ON THE' CASE. 559 stranger, or even his landlord.^ But as to a tenant at will, or by sufferance, although he may maintain trespass against a wrong- doer, he cannot against his landlord, even if violently dispos- sessed ; for an entry by the landlord determines his tenancy.^ Nor can a lessor have trespass against a sub-tenant of his lessee, for trespass committed during the term.^ But an interest in the profits of the soil is sufiicient for the purposes of this action ; as where a man purchases grass or other crop upon another's land, and a wrongdoer cuts and carries it away, trespass lies in favor of the purchaser, for the law holds him to be in possession.* If the tenant has assigned all his interest in the crop to another, trespass should be brought in the name of the latter for the wrongful taking away of such crop ; ^ and he may maintain the action even against the owner of the land.^ But where the owner or possessor of land, works it on shares with another, they are tenants in common of the crop, and must both sue for an injury done to it.'' Merely clearing out a fishing-place in a public river, does not give such a possession of it as will maintain trespass.^ § 783. A disseizee may have trespass against a disseizor for the disseisin itself, because he was then in possession ; but not for an injury after the disseisin, until he hath gained possession by reentry, and then he may support this action for an interme- diate damage.^ But it does not lie against a person coming in under the disseizor.^" So where the defendant is put into posses- sion under a writ of restitution, on an indictment for a forcible entry against the plaintiff, and the proceedings are afterwards quashed and restitution awarded, the plaintiff may maintain tres- 1 Taulkner v. Anderson, Gilm. K. 221 ; 1 Saund. 322, note 5. 2 Hyatt V. Wood, 4 Johns. E. 150, 313 ; 4 B. & C. 583 ; 9 Bing. 356. 3 3 Johns. E. 468. * Stewart v. Doughty, 9 Johns. E. 108 ; 6 East, 602 ; 5 B. & C. 827 ; 2 M. & S. 499. 5 Carter v. Jarvis, 9 Johns. E. 143. 6 1 Ohio, E. 251. ' Fowler v. Colvin, 3 Johns. E. 216 ; Demott v. Hageman, 8 Cow. E. 220. " Westfall V. Van Anker, 12 Johns. E. 423. " Tobey v. Webster, 3 Johns. E. 471 ; 2 Eol. Abr. 553 ; Dyer, 985. w Lifford's Case, 11 Eep. 56. 660 LAW OF LANDLORD AND TENANT. [CH. XV. pass against the defendant, but not against a person acting under license from him.^ A person having a mere incorporeal right, as of common of pasture, cannot support trespass quare clausum fregit, for treading down the grass growing upon the land upon which he has such right of common ; for though he has a right to pasture his cattle there, he has no exclusive right of possession to the land.^ But wherever an exclusive right exists trespass will lie, though the party has not the absolute right to the soil, or the whole property therein.^ And though the possession must be exclusive, it need only be so to the extent of the trespass ; for a party who has dedicated a street to the public may, notwithstand- ing, maintain trespass for an injury to the soil thereof, because he has the exclusive possession of the freehold.* For injuries to real property incorporeal, as a franchise, right of way, or common, inasmuch as the property cannot be affected immediately or tan- gibly by any substance, no injury thereto can be considered as committed with force, and consequently trespass will not lie. For the same reason, trespass cannot be supported for a non-fea- sance, for where there has been no act there can be no force ; ^ and, therefore, case is the proper remedy for a mere detention of goods, without an unlawful taking ; a neglect to repair the banks of a river, whereby the plaintiff's land was overflowed ; or a neglect to redeliver a beast distrained damage-feasant, when suffi- cient amends were tendered before the beast was impounded.^ § 784. With respect to the plaintiff's right or interest in the property affected, trespass is, as we have seen, an injury to the possession ; and unless, at the time the injury was committed, the plaintiff was in actual possession, the action of trespass quare clau- sum fregit, cannot be maintained.'' For this reason the landlord 1 Case V. Degoes, 3 Caines, E. 261 ; Wickham v. Freeman, 12 Joins. E. 184. 2 1 Term E. 430 ; 2 Eol. Abr. 522, N. pi. 8 ; Bac. Abr. Trespass, C. 3 ; 3 Burr. 1825 ; Cro. Eliz. 421. = 3 Burr. 1563, 1824 ; 2 M. & S. 499 ; 5 East, E. 485 ; Cro. Eliz. 421 ; Stultz v. Dickey, 5 Binn. 285. * Lade v. Sbepbard, 2 Stra. 1004; 1 Wils. 110. 6 3 East, 502; 1 Stra. 636; 1 B. & P. 476; 1 Ed. Eay. 188. ^ The Seneca Eailroad Co. v. The Auburn Eailroad Co. 5 Hill, E. 170; 2 Saund. E. 47, k ; 8 Co. 146 ; Eitz, N. B. 93. ' Stuyvesant v. Tompkins, 9 Johns. E. 61 ; Wickham u. Freeman, 12 Johns. E. CH. XV.] TRESPASS ON THE CASE. 561 cannot, during a subsisting lease, support trespass, but the action must be in the name of the tenant,^ or the landlord must proceed in case, as a reversioner ; unless the injury was committed to trees, or other property excepted in the lease, or the trees were severed and carried away, when the latter may support trespass for cut- ting and carrying away the same.^ So if land be granted to A., with a reservation of all mill-seats, and the grantor permits B. to enter and erect a mill, the entry of B. and the erection of a mill is a severance of the freehold, and renders the mill a distinct close ; and B. may maintain trespass against A. for pulling down the mill.^ But the mere occupation by a servant, of premises, he paying no rent, is to be considered the possession of the em- ployer, who may declare as on his own possession.* A party may sue for the continuance of a nuisance, though erected before he was possessed of the property in respect of which he sues.^ It lies against either the party who erected it, even though he has no right to enter upon the land to abate it, or the occupier who continues it, because every continuance of it is a fresh nui- sance. ^ In general, the owner is not liable, as such, for a nui- sance, being a mere non-feasance, but he may be liable as the ori- ginal erector ; and if he demise the land after erecting a nuisance, he is liable for the continuance of it, though out of possession as the demise affirms it.^ But the owner, though not in possession, is liable for a nuisance arising from non-repair, when he is by covenant the party to repair; if otherwise, the occupant is the party liable.^ And so the landlord is liable if he lets premises, the natural consequence of the regular use of which is, that they will become a nuisance unless attended to.^ 183 ; Addleman v. Way, 4 Yeates, 218 ; 3 S. & K. 514 ; Allen v. Thayer, 17 Mass. K. 299 ; 5 East, E. 485. 1 Campbell v. Arnold, 1 Johns. E. 511 ; Tobey v. Webster, 3 Ibid. 468; Catlin V. Heyder, 1 Ver. E. 375. 2 1 Saund. E. 322, n. 5 ; 7 Term E. 13 ; 8 East, 190 ; 4 Taunt. 316 ; Ward v. Andrews, 2 Chit. E. 636 ; Baxter v. Taylor, 1 Nev. & Man. 11. 3 Van Eensselaer v. Van Eensselaer, 9 Johns. E. 377 ; Jackson & Loux v. Bnel, Ibid. 299. 4 16 East, E. 33 - 36 i Ball v. GuUimore, 1 Gale, 96. ' Thomson v. Gibson, 7 M. & W. 456. « Ibid. 5 Eep. 101, a. 7 3 Nev. & Man. 627 ; 1 A. & E. 822 ; 2 H. Black. 349. 8 4 Term E. 318 ; 2 H. Black. 349. » 3 Nev. & Man. 627 ; 1 A. & E. 822. 562 LAW OF LANDLORD AND TENANT. [CH. XV. <§> 785. If a party having title enters upon land, or takes pos- session, lie may treat as trespassers all those who afterwards come upon it ; ^ or who, having unlawfully taken possession in the first instance, wrongfully continue on the land. As where a remainder-man entered upon a party in possession by intrusion, it was held that trespass lay by the remainder-man against the intruder.^ A lessor may even break and enter a house held over by the tenant, where the possession is vacant, even though the tenant may have left some property therein.^ But where a party has come lawfully into possession, and remains after his right has expired, as in the case of a tenant holding over, the owner is not, it seems, justified in entering and expelling him, or -his goods, by force ; * because such force, being an abuse of an authority in law, makes the entry a trespass ah initio ; and there- fore if the party ousted bring trespass, the defendant cannot jus- tify the expulsion, for want of a lawful possession, and whether the entry was forcible or not is a question for a jury.^ The English books draw a distinction between personal and real pro- perty, as to the owner's right of action. With regard to the former, they hold, as we have seen, that the general property draws to it the possession sufficient to enable the owner to sup- port trespass, though he has never been in possession ; ^ but, as to real property, there is no such constructive possession ; and unless the plaintiff has the actual possession, by himself or ser- vant, at the time the injury was committed, he cannot support the action.'' But in this country we have carried the principle, as to real property, further than has been done in England ; and we allow the owner to maintain trespass without an actual entry, on the principle that possession follows the ownership, unless there be an adverse possession.^ The right of action for a trespass is, 1 Hay V. Moorhouse, 8 Scott, 156. 2 Butcher v. Butcher, 7 B. & C. 399 ; 1 M. & E. 220. ^ Turner u. Meymott, 1 Bing. 158 ; 7 Moore, 574. ' Hilary v. Gay, 6 C & P. 284 ; 1 Scott, N. R. 491 ; S. C. 1 M. & G. 644. 6 Newton v. Hai-land, 1 Scott, N. R. 491. 8 2 Saund. E. 47, a ; Bui. N. P. 33 ; ante, 384. 7 16 East, E. 33 I 5 Ibid. 485 ; Bac. Abr. Trespass, C. 3. ' Van Brunt v. Schenck, 11 Johns. E. 385 ; Wickham v. Foreman, 12 Johns. E. 184; Bush V. Bradley, 4 Day, R. 306 ; Lunt v. Brown, 13 Maine E. 236 ; Rowland v. Rowland, 8 Ohio R. 40 ; Anderson v. Nesmith, 7 N. H. E. 167. For CH. XV.] TEESPASS ON THE CASE. 563 at common law, strictly personal, and does not survive against tlie personal representatives of the deceased trespasser ; though if his estate has been benefited by the trespass, it may be made responsible to that extent in another form of action. But the Eevised Statutes of New York authorize this action to be brought against the executor or administrator of any testator or intestate, who, in his lifetime, shall have wasted, destroyed, or carried away the chattels of any such person, or committed any trespass on the real estate of any such person.^ all purposes of the remedy, the law annexes a constructive possession to the right of possession ; and where the owner, having heen ousted for a time, is, hy entry or ejectment, finally restored, the law adjudges his possession never to have heen discontinued. Jackson v. Sellick, 8 Johns. E. 270 ; Davis v. Clancy, 3 McCord, E. 422 ; Hannah v. Dansby, 2 Hill, (S. C.) E. 466 ; 1 Mass. E. 483 ; 2 Hayw. E. 402 ; 1 Dov. & Bat. 40. If he shows a right of possession at the time the defend- ant went in, it is a right which continues to the time of the recovery and reentry, and he is then considered as having been in possession according to his right. Dewey v. Osborn, 4 Cow. E. 329 ; Morgan v. Varick, 8 Wend. 587 ; Leland v. Tousey, 6 Hill, 328. 1 2 E. S. 114, § 5. Before dismissing this branch of our subject entirely, it may not be wholly improper to notice a case recently decided in the Superior Court of the city of New York, (although it might have been introduced more appropriately in another place,) in which that court appear to have carried out the doctrine of an eviction by the landlord's misconduct to the utmost verge of the authorities ; holding, that an intentional disturbance of the tenant's beneficial use and enjoyment of the premises, injurious to his business, and destructive of the comfort of himself and family, which disturbance was produced by the landlord's family, but with Ms knowledge, constituted an eviction by the landlord, and pre- cluded him from the recovery of rent. In this case the defendant's principal, Dr . Chase, occupying the second floor of the house, had reserved to himself, in the lease, the privilege of exercising his vocation as a dentist. His business necessa- rily would lead to many visits to his apartments, and the more in proportion to his prosperity. It seems that the calls made upon him were, in fact, numerous ; and, either because they were disturbed by the constant ringing of the door-beU, or from mischievous or malicious motives, some of the plaintiff's family resorted to the expedient of muflSing the bell. This was done frequently, and was con- tinued after the tenant remonstrated with the plaintiff against it, and after the lat- ter, by the exercise of his authority, should have stopped it effectually. The con- sequence of this conduct was, that persons coming to visit the tenant as a dentist would pull at the bell from fifteen to twenty minutes before eff'ecting an entrance, and sometimes were compelled to leave without succeeding in getting into the house ; and if persisted in, the inevitable effect of 'such conduct would be seriously to impair, if not to' destroy, the tenant's professional business. In addition to this, and calculated to affect the tenant in the same way, there were a variety of minor offences committed by the plaintiff's family. They littered the stair-carpet with nutshells, dirt, and other filth ; with the sweepings from the story above, and with 564 LAW OE LANDLORD AND TENANT. [CH. XV, water spilled upon it ; and placed snowballs in the window-sill, &c., to drip upon the carpet. On one occasion a placard was put on the stairway, to call attention, by his name, to the filthy condition of the tenant's stairs ; such condition being in spite of great efforts on his part to keep it clean. Impertinent and insulting lan- guage was addressed, by the plaintiff's family, to persons visiting the tenant on business ; and loud singing and like noises were made on the stairway, calculated to disturb such persons. In reference to the tenement as the tenant's dwelling, he, his wife, and his widowed sister, were repeatedly and frequently subjected, by the plaintiff and his family, to insulting and abusive language, to hearing obscene noises at their door, and to a variety of similar annoyances, petty in their detail and taken singly, but, in the aggregate, sufficient to render them very uncomfort- able and' unhappy. Such being the evidence in the case, the jury held that it proved an eviction of the tenant, and we think their conclusion was correct. Per Sandford, Justice, in Cohen v. Dupont, 1 Sandf. E. 260. In a subsequent case, however, Cram v. Dresser, 2 Sandf E. 120, the same court held, that a wrongful act of the landlord, causing great inconvenience and trouble to the tenant's family, and keeping the demised premises in confusion and disorder for a long period, by an unreasonable delay in the painting and repairing he had undertaken to do, although it might have justified the tenant in considering it as an eviction, could not be set up as such, where the tenant continued in possession for a year after the injury was sustained. CH. XVI.] OF FORCIBLE BNTEY AND DETAINEE. 565 CHAPTER XVI. OF FORCIBLE ENTEY AND DETAINER. § 786. Forcible entry and detainer consist in the violent tak- ing or keeping possession of lands and tenements, -with threats, force and arms, and without the authority of law. This was for- merly allowable to every person disseized, or turned out of posses- sion, unless his entry was taken away or barred, by his own neglect or other circumstances. But it was found so prejudicial to the public peace, that it became necessary to restrain all per- sons from the use of such violent methods of doing themselves justice. The Eevised Statutes of New York declare — " No entry shall be made into any lands, or other possessions, but in cases where entry is given by law ; and, in such case, only in a peaceable manner, not with strong hand, nor with multitude of people." ^ The only entry, therefore, now allowed by law is a peaceable one ; the entry forbidden by law is such as is sup- ported and maintained with force, violence, and unusual weapons. Forcible entry and detainer is punishable rather as a breach of the peace, than as an offence against the property of an indivi- dual ; and, as such, is indictable at common law. The party aggrieved may, therefore, proceed either criminally at common law, or civilly under the statute for restitution. § 787. To make an entry forcible, there must be such acts of violence, or such threats, menaces, signs, or gestures, as may give reason to apprehend personal injury or danger, in standing in defence of the possession. But where there is no other force used than is implied in every trespass, the case is not within the statute .2 Any man having a right of entry into lands may exer- 1 2 E. S. 507, § 1. 2 Pennsylyania v. Robinsons, Addis. E. 14, 17, 43 ; Commonwealth v. Dudley, 10 Mass. R. 409 ; Eex v. Wilson, 8 T. E. 357. To constitute a forcible entry, or a forcible detainer, it is not necessary that any one should be assaulted, but only that the entry or detainer should be with such numbers of persons and show oi 48 566 LAW OP LANDLORD AND TENANT. CH. XVI. cise such right, provided he commits no such acts of violence as ■will subject him to a criminal prosecution.^ For this reason, a warrant -will not lie for forcibly taking possession of a ferry, and the banks and shores of a river, where the party taking posses- sion has a right of ferry established ; for a ferry is an incorpo- real right, upon which no entry can in fact be made ; nor can the sheriff, in case of a judgment of restitution, deliver the posses- sion.2 It is no excuse that the person entered to make a dis- tress, or enforce a lawful claim ; nor that one was in the house, or that possession was ultimately obtained by entreaty.^ It may be committed by a lessee, who forcibly maintains possession when his term has expired ; a mortgagor, after the forfeiture of the mortgage ; the feoffee of a disseizor, after entry or claim of the party disseized ; or by a tenant, when he forcibly resists a distress for rent.* § 788. If the tenancy of a house be determined, and the tenant has promised to leave on a particular day, but afterwards refuses to do so, the landlord is not justified in putting the tenant's wife out by force, and placing his furniture into the street ; although if the tenancy be determined, and the tenant and his family have gone away and locked the house up, no one being in possession, the landlord will be justifiable in breaking into the house and obtaining possession.^ But if, after the expiration of the term, a tenant remains in possession of only a single apart- ment of the house ; or if, after notice to quit, he abandons the house and locks it up, leaving some articles of furniture in it ; the landlord is not justified, in either case, forcibly to assert his right of possession, but, if he attempts to do so, will render him- force as is calculated to deter the rightful owner from sending the persons away, and resuming his own possession. Milner v. McClean, 2 Car. & Pay. 17, Abbott. So an indictment for a forcible entry cannot be supported by evidence of a mere trespass ; but there must be proof of such force, or at least such show of force, as is calculated to preyent any resistance. Hex v. Smyth, 5 Car. & Pay. 201 ; 1 M. & Rob. 156. • Langdon v. Potter, 3 Mass. E. 215 ; State v. Johnson, 1 Dev. & Bat. 324. 2 Bees V. Lawless, 8 Littel, (Ky.) R. 184. 8 Com. Dig. Porcible Bntiy, A. 2 ; 8 T. E. 361. * Com. Dig. Justices, B. 1 . ^ Hillary v. Gray, 6 Car. & Pay. 284. CH XVI.] OF FOEOIBLB ENTRY AND DETAINER. 567 self liable to an indictment for a forcible entry .^ The trustees of a church are, virtute officii, lawfully seized of the ground and buildings belonging thereto ; and if they close its doors against the minister and congregation, -who break and enter the church by force, an indictment, at the instance of the trustees, will lie against them, for such forcible entry. Having the key of the church is prima facie evidence of possession, but does not pre- clude an inquiry into the fact, who are the legal trustees, and have the right of possession.^ The same circumstances of vio- lence, which make an entry forcible, will make a detainer forcible also ; and whoever keeps in the house an unusual number of peo- ple, or unusual weapons, or threatens to do some bodily hurt to the former possessor if he dare return, will be adjudged guilty of a forcible detainer, though no attempt be made to reenter.^ But the mere act of nailing up the door of a house does not amount to retaining a forcible possession.* § 789. By the New York statute, the complaint is to be made in writing, accompanied by an affidavit of the circumstances, and that the complainant has an estate of freehold, or for a term of years, in the premises then subsisting, or some other right to the possession thereof, stating the same. The English statutes re- quire the applicant to have an estate of freehold, or for term of years,^ but it will be perceived our statute extends to any right of possession ; it has, therefore, been held, that a party in the actual and peaceable possession of lands, at the time of a forcible entry, or in the constructive possession, at the time of a forcible holding out, is entitled to proceed under the statute, although he is neither seized of a freehold, nor possessed of a term of years in the premises.^ But unless there is possession in another at the ^ Newton v. Harland, 1 Scott, N. E. 473 ; 1 Man. & Gr. 644 ; Turner v. Mey- mott, 7 Moore, 574 ; 1 Bing. 158. See Hillary v. Gay, 6 Car. & Pay. 284 ; New- ton V. Harland, 2 Scott, N. E. 474 ; 1 Man. & Gr. 644 ; 2 Jur. 350. 2 People V. EumMe, 9 Johns. E. 147 ; 8 Ibid. 464. 3 The People v. Eickert, 8 Cow. E. 226 ; 10 Mass. E. 403. * Hopkins v. Buck, 3 A. K. Marshall, 110. 6 15 Rich. II. c. 8 ; 31 Eliz. c. 11 ; 21 Jac. I. c. 15 ; 1 Hawk. P. C. C. 64, note. ^ The People v. Vanostrand, 9 Wend. E. 52. Where any such forcible entry shall be made in a peaceable manner, and the possession shall be held by force, the person so forcibly put out, or so forcibly holdeu out of possession, and the 568 LAW OF LANDLOED AND TENANT. [CH. XVI. time of entry, whatever be the degree of force, the entry is not an ofiFence at law.^ A party, however, may have had possession constructively, when he was never, in fact, upon the land ; but whether he had such possession or not, is always a question for the jury .2 But a mere trespasser, or intruder, cannot institute proceedings under this statute, and be restored to the possession of that which he held unlawfully ; for the legislature only intended to extend this remedy to such persons as had a legal right of pos- session.^ § 790. The complainant, in those States where the English statutes have been adopted, must allege that he was seized in fee, for life or a term of years, and that he was turned out of posses- sion by strong hand, or held out of possession in the same man- ner.* Consequently, if the tenant or under-tenant is disseized, he is the only person entitled to make the complaint.^ The com- plainant's interest should be truly stated ; but if a lawful posses- sion is averred it is enough, unless the want of precision in the statement should be objected to, before the taking of the inquisi- tion before the judge. But an affidavit that the complainant was lawfully and peaceably possessed of the premises in question, as tenant thereof, under the executors of A. B., deceased, who was the owner of the same, without setting forth the nature of the estate by virtue of which such possession was held, is sufficient within the provisions of this statute, upon objection taken after inquisition finding the complainant to be tenant at will.^ It is of no importance whether the seizin be by right or wrong, or whe- guardian of any such person, being a minor, may be restored to such possession by making complaint to a county judge, or to a circuit judge, supreme court commissioner, or any mayor, recorder, or alderman of any city ; or in the city of New York, in addition to such officers, to any justice of the marine court, or any assistant justice. 1 Pennsylvania v. Waddle, Addis. E. 43, 315, 355 ; Mavis v. Sparks, 2 South. (K.J.)R-513. 2 Chiles V. Stephens, 3 A. K. Marshall, 340. 2 People V. Eeed, 11 Wend. 157. * 1 Hawkins, P. C. 274 j The People v. Shaw, 10 Mass. R. 403 ; 8 Johns. E. 464 ; Eex v. Bath et al. 8 D. & E. 357. 6 Toder v. Easeley, 2 Dana, E. 245. 6 The People v. Eeed, 11 Wend. E. 157. CH. XVI.] OF FORCIBLE ENTRY AND DETAINEE. 569 ther the term of years be legal or not.^ But a man who was neither in possession, nor had title at the time the entry was made, cannot, by a subsequent purchase, acquire a right to insti- tute this proceeding.^ A general description of the land is suffi- cient ; ^ but the description must be sufficient to affijrd a guide to the sheriff, in executing the writ of restitution.* § 791. The judge thereupon issues a precept to a sheriff, or constable, of the county, requiring him to summon a jury to inquire of such forcible entry or detainer ; and, at the same time, notifies the party against whom the complaint is made of the issuing of such precept, and of the time and place of the return thereof. At the time and place appointed, the jury will make inquisition, and deliver the same to the judge. If, by such inquisition, it shall be found that a forcible entry has been made, or, that the entry being peaceable, the possession was forcibly kept, the party complained against may traverse the inquisition in writing denying such forcible entry, or forcible holding out, or alleging that he, or his ancestors, or those whose estate he has in such lands, have been in quiet possession for three years pre- vious, and that his interest is not terminated, and upon paying the fees of the inquisition, the traverse will stay all further pro- ceedings until it can be tried. The landlord of the party com- plained against may also become the traverser upon the same terms. A jury of twelve men is then summoned to try the tra- verse. On the trial, the party making the complaint will only be required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession, at the time of the forcible entry, or was in the constructive possession of the premises at the time of the forcible holding out ; and the 1 H Johns. R. 504 ; State of New Hampshire v. Pearson, 2 N. H. E. 550 ; Mavis V. Sparks, 2 South. (N. J.) R. 513 ; 1 Yeates, Penn. E. 501. 2 Lewis V. Stitle, 2 Litt. 294 ; 3 Ibid. 465. " Moore v. Massie, 3 Litt. 296. * Murphy v. Lucas, Ohio Con. E. 350 ; Martin & Yerger, Term E. 193 ; 2 South. (N. J.) E. 849. In New Jersey, the nature of the estate of the party aggrieved must be stated in the complaint. Wall v. Hunt, 4 Halst. 37. But the defendant is not allowed to show that the complainant has a different estate in the premises from that which he avers in the complaint. Allen v. Smith, 7 Halst. 199. 48* 570 LAW OF LANDLORD AND TENANT. [CH. XVI. traverser may show, in his defence, that he, or his ancestor, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of three whole years toge- ther, next before the trial, and that his interest therein is not then ended or determined ; and such showing shall be a bar to the prosecution.^ § 792. The title is not to be investigated in a proceeding of this nature ; but the relator is still bound to set forth his title so far as to show himself within the provisions of the statute. So far the title of the relator may be controverted by the defendant, but he cannot set up his own title as a substantive matter of defence. The question of title, as between the relator and de- fendant, cannot be tried in this manner ; but the latter, if his claim is paramount to that of the relator, must resort to an appro- priate remedy to maintain his rights.^ The defendant is entitled to produce witnesses before the jury, to cross-examine the com- plainant's witnesses, and to sum up the evidence to the jury.^ § 793. If no traverse is taken to the inquisition, or the 1 2 E. S. 509, § 4- 11 ; The People u. Leonard, 11 Johns. 504 ; Gray v. Nesbet, 2 A. K. Marshcall, 35 ; Singleton v. Finley, 1 Port. E. 144. ^ People V. Eickett, supra ; People ;;. Godfrey, 1 Hall, E. 240 ; People v. Nel- son, 13 Johns. E. 40 ; Eespublica v. Shryber, 1 Dall. 68 ; Chiles v. Stephens, 3 Marsh. (Ky.) E. 344 ; Dutton v. Tracy, 4 Conn. K. 80 - 94 ; 2 Stew. 474. In The People v. Van Nostrand, 9 Wend. 52, the court say — "It is objected, by the defendant, that as the indictment alleges a possession in fee-simple in the relator, the complainant was bound to show such an estate on the trial. Under the Eevised Statutes, as has already appeared, the nature of the estate has become immaterial'; possession is sufficient ; and I apprehend the allegation of the estate, in addition to the possession , may be rejected as surplusage. But if it was necessary to establish the fact, as alleged in the indictment, the proof of possession was evi- dence of it. 11 Johns. E. 510. And the defendant is not at liberty to rebut the inference drawn from such evidence, by showing ike kind of estate which the complainant has in the premises." The only defence allowed to the defendant on the traverse is, 1st. The denial of the forcible entry, or forcible holding out; or, 2d. Showing that he, or his ancestors, or those whose estate he has, have been in the quiet pos- session of the premises three whole years together, next before the inquisition found, and that his interest is not ended or determined." And the court refused to permit the defendant to traverse the complainant^s title, though formerly this appears to have been otherwise. See People v. Godfrey, 1 H. 240 ; People v. Nelson, 13 J. E. 340. ^ The People v. Eeed, supra. CH. XVI.j OP FORCIBLE ENTRY AND DETAINER. 571 defendant is found guilty upon such traverse, the judge awards restitution of the premises so forcibly entered, or forcibly held out, with the costs and expenses of the proceedings ; and the she- riff or constable is thereupon directed to cause the complainant to be restored to, and put in full possession of the premises.^ The proceedings for the restitution of the premises cannot be removed by certiorari, unless allowed by a justice of the supreme court, a circuit judge, or supreme court commissioner ; nor then, until after an inquisition found,^ and giving a bond with sureties to the complainant, to abide by the final order of the court, and pay any costs that may be awarded.^ And where the proceedings have been so removed, and the issue ordered to be tried at the circuit, judgment as in case of nonsuit will be granted, as in other actions, if the relator does not proceed to trial.* § 794. In addition to the civil remedy provided by statute, an indictment may also be supported at common law for a forcible entry ; ^ but in New York a public breach of the peace must appear.^ To an indictment, the defendant may plead three years' possession, or may traverse the force.^ And upon a con- viction of the defendant, for either a forcible entry or detainer, the court will award restitution of the premises in the same man- ner as a judge, upon a verdict being rendered before him.* 1 2 R. S. 509, § 12, 13. The Statutes of Illinois and Indiana require that all the jury should sign the verdiet. Bloom v. Gooder, Breese, 35; Test v. Devens, 2 Blackf. 80. 2 Haines v. Backus, 4 Wend. E. 213. 3 2E. S. 511, § 20. * The People v. Hiekox, 3 Hill, (N. T.) R. 446. 6 Rex V. Niehols, 1 Ld. Ray, 512 ; 8 T. R. 360 ; Res v. Lloyd, Cald. 115. 6 2 R. S. 511, § 23. ' 1 Ld. Ray. R. 440. 8 2 E. S. 511, § 23 ; Hawk. b. 1, c. 64, § 45 ; Cro. Jac. 151 ; AUeyn, 50. APPENDIX, NO. I. Agreement for a Lease. Memorandum of an agreement made the day of , 18 — , between A. B., [intended lessor,] of , of the one part ; and C. D., [intended lessee,] of , of the other part. The said A. B. agrees to grant, and the said C. D. to take, a lease, by indenture, of all that messuage, &c.,^ with Parcels. the appurtenances, for the term of years, to com- Term. mence and be computed from the day of last, at the yearly rent of , to be paid half-yearly, on the Eent. day of ■ , and the day of , without any deduction or abatement on any account whatsoever ; the first half-yearly payment thereof to become due and be made on the day of next. And it is hereby Lease to declared and agreed, that in such lease, if granted, shall covenants. be contained the following covenants, that is to say : [Here set out the covenants intended to he comprised in the lease-Y Witness, ^- ^• ' The words messuage, or tenement, or premises, are used through- out these forms ; but it is unnecessary to say that the parcels, varying aS' they must do, should be referred to by appropriate terms. When once described, they may, in general, where brevity ia desirable, be referred to by the single word premises. ''■ In framing agreements for leases, the best plan is to set out in extenso, the several provisions which the lease itself is to contain ; but as this is often objected to, on the ground of expense, the provisions are sometimes referred to in concise terms, (as the lessee to covenant to pay rent and taxes, to repair, to insure, &c.,) and left to expansion at a future day, according to the supposed intention of the parties ; a 574 APPENDIX. NO. II. Term. Eent. Reserva- tions. Terms for Letting a Farm. Terms between Landlord and Tenant for letting a farm in the town of , in the county of Somerset, in the State of New Jersey, known as the Bellevue Farm. 1. Term to be five years, to be computed from the day of , and so to continue until the landlord, or his agent, or the tenant, shall give six calendar months notice, in writing, to the other to determine the tenancy on the day of next following the day of the date of such notice. 2. Eent to be day of day of Taxes and rates. -, and the J per annum, to commence on the next, and to be paid quarterly, on the the day of , the day of — day of , and to be paid by equal portions ; the first payment thereof to be made on the day of next. 3. The landlord reserves to himself all trees, woods, underwoods, and saplings, with liberty, at all seasonable times, of ingress, egress, and regress, for himself or ser- vants, agents, and workmen, with or without horses and carriages, on any and every part of the premises, for the purpose of cutting down and carrying away the same, and also to view the state of repair of the said premises, and perform all reparations necessary, and on all other just and reasonable occasions. He also reserves to himself and his friends, either in his company or not, the right of sporting over the said premises. 4. The tenant to pay and discharge all rates, taxes, and rents-charge of every description, as well what are charge- able on the landlord as on the tenant, now charged, or here- after during the time of his occupation to be charged on the premises, except the landlord's property tax, payable in respect of the premises. course of proceeding generally leading to dispute, and not unfrequently to litigation. It is scarcely, therefore, necessary to say that an agree- ment, stipulating for the insertion of all usual covenants, or all proper covenants, or the like, should be carefully avoided. APPENDIX, 575 5. The tenant not to plough or convert to tillage any part Penal of the premises now in meadow or pasture, without the con- '^'^^ ^' sent, in writing, of the landlord, or his agent ; nor sow or plant flax, rape, hemp, or tobacco, upon any part of the said premises, under an additional sum, at the rate of per acre per annum, to be payable quarterly, on the days afore- said, and to be considered as rent ; and payment thereof to be enforcible accordingly. 6. The tenant not at any time between the 1st day of Depastur- November and the 1st day of April to depasture or feed^f_ °''^'^^' more than two horses, mares, or geldings, in any one close, at any one time, after giving or receiving notice to quit the same. 7. The landlord to keep in repair the roofs, walls, beams, Eepaii-s of and stanchions of the dwelling-house and outhouses belong- ' ing to the said premises. 8. The tenant not to sell or part with any dung or com- Dung, or post to be made on the premises, nor any hay, straw, halm, or stubble, or the fodder that shall arise therefrom ; but shall spend and consume the same on the premises. 9. The tenant not to let or in any manner otherwise Assigning dispose of, or permit to be occupied by any other person, jgjjjjj- any part of the premises, without the landlord's consent, in writing, under the additional yearly rent of per acre Penal rent. for each acre so let, disposed of, or permitted to be occu- pied, and so in proportion for any greater or less quantity than an acre ; such additional rent to be payable quarterly on the days aforesaid, and considered as rent ; and payment thereof to be enforcible accordingly. 10. The tenant to keep in repair the glass of the win- Repairs of dows of the dwelling-house, and all internal repairs and^° ^^^' painting ; and also find and provide all gates, posts, stiles, rails, pales, and backings, and keep the same in good tenantable repair ; and also new-make and repair all the hedges, wall and other fences, and cleanse the ditches, watercourses, and drains, in and upon the said premises. 11. The tenant not to mow any part of the meadow jjo.,,,^^ lands more than once in any one year, or after the 10th ^°^ ''^'''" day of August in every year; and in all respects to manage and cultivate all the premises in a husbandlike manner. 576 APPENDIX. Waste. 12. The tenant to pay , as stated damage, for any Stated waste or damage done, or permitted on the premises, to the damages. ... ■ r amount of ten shillings, and so in proportion for any greater or less damage ; and also , as stated damages, for each and every tree or sapling that shall be cut on the pre- mises. Baaki'upt- 13. The landlord to have and take immediate possession vencVof° °^ '^^ premises, in case the tenant shall become a bankrupt, tenant. or in case he shall take the benefit of any act for the relief of insolvent debtors, or shall permit any writ of execution to be levied on his effects. Construe- 14. This instrument to operate as an agreement for a a^°ee°ment. ^^ase, and not as a lease. Lien, 15. A. B., of , [the landlord,] and C. D., of , [the tenant,] hereby mutually agree, each of them for him- self, his heirs, executors, administrators, and. assigns, with the other of them, his heirs, executors, administrators, and assigns, that the said A. B. and C. D. respectively, and his respective heirs, executors, administrators and assigns, shall and will, from time to time, during the continuance of the term or estate agreed to be granted, as above mentioned, make the payments, and observe, perform, and fulfil all the articles and stipulations above mentioned, to be observed and performed on his and their parts respectively. In witness whereof the said parties to these presents have hereunto set their hands the day of , one thou- sand eight hundred and . Witness, ^- ^• NO. III. Another Form of an Agreement for a Lease. Parties Memorandum of an agreement entered into this 1st day agi-eeto pf February, 1844, between A. B., of the city of New lease. York, Esquire, and C. D., of the said city, merchant, whereby the said, A. B. agrees that he will, by an inden- ture, to be executed on or before the 1st day of May next, demise and let to the said C. D. a certain house and lot in said city, now or late in the occupation of E. F., known as APPENDIX. 577 No. — , in street, to hold to the said C. D., his execu- tors, administrators, and assigns, from the 1st day of May- aforesaid, for and during the term of twenty-one years, at or under the clear yearly rent of five hundred dollars, pay- able quarterly, clear of all taxes and deductions except the ground-rent. In which lease there shall be contained cove- Specifica- nants on the part of the said C. D., his executors, adminis- ^^g"jj°jg™J trators, and assigns, to pay the rent, (except in case the be contain- . , , , ^ , . ' ed in the premises are destroyed by fire, the rent is to cease until lease. they are rebuilt by the said A. B.,) and to pay all taxes and assessments, (except the ground-rent,) to repair the premises, (except damages by fire,) not to carry on any offensive or other business on the premises, (except by written permission of the said A. B.,) to deliver the same up at the end of the term in good repair, (except dangers by fire as aforesaid,) with all other usual and reasonable covenants, and a proviso for the reentry of the said C. D., his heirs, and assigns, in case of the non-payment of the rent for the space of fifteen days after either of the said rent days, or the non-performance of any of the covenants. And there shall also be contained covenants on the part of the said A. B., his heirs, and assigns, for quiet enjoyment ; to renew said lease at the expiration of said term, for a further period of twenty-one years, at the same rent, on the said C. D., his executors, administrators, or assigns paying the said A. B., his executors, administrators, or assigns, the sum of five hundred dollars, as a premium for such renewal ; and that, in case of an accidental fire, at any time during the term, the said A. B. will forthwith proceed to put the premises in as good repair as before such fire, the rent in the mean time to cease. And the said C. D. hereby agrees to accept such lease on the terms aforesaid. And it is mutually agreed that the cost of this agreement, and of making and recording said lease, and a counterpart thereof, shall be borne by the said parties equally. As witness our hands and seals the day and year first above written. A. B. (l. s.) C. D. (l. s.) 49 578 APPENDIX. NO. IV. A Landlord''s Agreement of Lease. This is to certify that I have, this 1st day of March, 1S44, let and rented unto Mr. C. D. my house and lot, known as No. — , in street, in the city of New York, with the appurtenances, and the sole and uninterrupted use and occupation thereof, for one year, to commence the 1st day of May next, at the yearly rent of four hundred dollars, payable quarterly on the usual quarter days ; rent to cease, in case the premises are destroyed by fire. A. B. Tenant''s Agreement. This is to certify, that I have hired and taken from Mr. A. B. his house and lot, known as No. — , in street, in the city of New York, with the appurtenances, for the term of one year, to commence the 1st day of May next, at the yearly rent of four hundred dollars, payable quar- terly, on the usual quarter days. And I do hereby promise to make punctual payment of the rent in manner aforesaid, except in case the premises become untenantable from fire, or any other cause, when the rent is to cease ; and do fur- ther promise to quit and surrender the premises, at the expi- ration of the term, in as good state and condition as reason- able use and wear thereof will permit, damages by the ele- ments excepted. Given under my hand and seal the 1st day of March, 1844. Witness, C. D. (l. s.) Security for Rent. In consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, and performance of the covenants, in the above written agree- ment mentioned, to be paid and performed by C. D., as therein specified and excepted ; and if any default shall be made therein, I do hereby promise and agree to pay unto Mr. A. B. such sum or sums of money as will be sufficient APPENDIX. 579 to make up such deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non- payment, or proof of demand being made. Given under my hand and seal the 1st day of March, 1844. E. F. (l. s.) NO. V. Tenants Agreement for a House, Embracing a Mort- gage of his Chattels. This is to certify that I, A. B., have hired and taken from C. D. the premises known as No. — , in street, in the city of New York, for the term of one year from the 1st day of May next, at the yearly rent of four hundred dollars, payable quarterly. And I hereby promise to m^ke punctual payment of the rent in manner aforesaid, and quit and surrender the premises at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements ex- cepted ; and engage not to let or underlet the whole or any part of the said premises, or occupy the same for any busi- ness deemed extra-hazardous on account of fiire, without the written consent of the landlord, under the penalty of forfeiture and damages. And I do hereby mortgage and pledge all the personal property, of what kind soever, which I shall at any time have on said premises, and whe- ther exempt by law from distress for rent or sale under execution, or not, to the faithful performance of these cove- nants, hereby authorizing the said C. D., or his assigns, to distrain upon and sell the same, in case of any failure on my part to perform the said covenants, or any or either of them. Given under my hand and seal the 15th day of March, 1844. A. B. (l. s.) Landlord'' s Agreement. This is to certify that I, C. D., have let and rented unto A. B. the premises known as No. — , in street, in the city of New York, for the term of one year from the 1st day of May next, at the yearly rent of four hundred dollars, 580 APPENDIX. payable quarterly. The premises are not to be used or occupied for any business deemed extra-hazardous on ac- count of fire, nor shall the same, or any part thereof, be let or underlet, except with the consent of the landlord, in writing, under the penalty of forfeiture and damages. Given under my hand and seal the 15th day of March, 1844. C. D. NO. VI. Agreement for Lodgings, or Part of a House. Memorandum of an agreement entered into the day of , 1844, by and between A. B., of , and C. D., of, &:c., whereby the said A. B. agrees to let, and the said C. D. agrees to take, the rooms or apartments following : that is to say, an entire first floor, and one room in the attic story, or garret, and a back kitchen and cellar oppo- site, with the use of the yard for drying linen or beating car- pets or clothes, being part of a house and premises in which the said A. B. now resides, situate and being in number — , in street, in the city of New York, to have and to hold the said rooms and apartments, and the use of the said yard as aforesaid, for and during the term of half a year, to commence from the day of instant, at and for the yearly rent of dollars, lawful money of the United States, payable monthly, by even and equal portions, the first payment to be made on the day of next ensuing the date thereof; and it is further agreed that, at the expiration of the said term of half a year, the said C. D. may hold, occupy, or enjoy the said rooms or apartments, and have the use of the said yard as aforesaid, from month to month, for so long a time as the said C. D. and A. B. may and shall agree at the rent above specified ; and that each party be at liberty to quit possession, on giving the other a month's notice in writing. And it is also further agreed that, when the said C. D. shall quit the premises, he shall leave them in as good condition and repair as they shall be on his taking possession thereof, reasonable wear excepted. APPENDIX. 581 As witness our respective hands and seals the day and year aforesaid. „,. , A. B. (l. s.) Witness present, q j. / < NO. VII. A Lease of a House for Five Years. This indenture, made the first day of April, one thousand eight hundred and forty-four, between A. B., of the city ofParties, New York, merchant, of the first part, and C. D., of said city, bookseller, of the second part, witnesseth, that the said party of the first part hath letten, and by these presents doth grant, demise, and to farm let, unto the said party of grant and , 1 , ■ 1 • • 1 • demise. the second part, his executors, administrators, and assigns, all that brick house, messuage, or tenement, with all and singular its appurtenances, situate, standing, and being in the ninth ward of the said city of New York, and known as number — , in street, in said city, to have and to hold the said premises, with the appurtenances, unto the said C. D., his executors, administrators, and assigns, for the term For the of five years from the first day of May, one thousand eight ^^™y°j,j.g^ hundred and forty-four, at the yearly rent or sum of six hundred dollars, to be paid in equal quarter yearly pay- ments, as long as the said premises are in good tenantable condition. And it is agreed that, if any rent shall be due proviso for and unpaid, or if default shall be made in any of the cove-'^*^" ^' nants herein contained, then it shall be lawful for the said party of the first part to reenter the said premises, or to dis- train for any rent that may remain due thereon. And the Lessor co- said party of the second part doth hereby covenant to pay pay^rent ■" to the said party of the first part the said yearly rent, as herein specified, save and except at all times during the said term such proportional part of the said yearly rent as shall grow due during such time as the house shall, without the hindrance of the said party of the second part, be and remain untenantable, by reason of accidental fire. And to keep the that the said C. D., his executors, administrators, and as- repai?; > signs, shall and will, during the said term, at his own pro- per costs and charges, well and sufficiently keep in repair , the said demised premises, with their appurtenances, when 49* 582 APPENDIX. and as often as the same shall require, damages by fire to sun-en- only excepted. And that, at the expiration of the said end of the term, the said party of the second part will quit and surren- terra; (]er the premises hereby demised, in as good state and con- dition as reasonable use and wear thereof will permit, and to pay damages by fire only excepted. And also that he, the said party of the second part, his executors, administrators, and assigns, shall and will, during the said term, pay and dis- charge all taxes, assessments, and other charges, which shall be taxed, assessed, or charged upon the said premises. Lessor co- or any part thereof. And the said party of the first part qSelTen- °^ ^°^^ covenant that the said party of the second part, on ioyment; paying the said yearly rent, and performing the covenants aforesaid, shall and may peaceably and quietly have, hold, and enjoy the said demised premises for the term aforesaid, without any interruption or molestation of the said party of the first part, his heirs, or any other person whatever, claiming, or to claim by, from, or under him, or them, or :ind to re- any of them. And also, that in case the said premises !of fire, shall, at any time during the said term, be destroyed or injured by an accidental fire, the said party of the first part, his executors, administrators, or assigns, shall and will forthwith proceed to rebuild or repair the said premises in as good condition as the same were before such fire ; and that, until such repairs are made and completed, the said rent shall cease. In witness whereof, the parties to these presents have hereto set their respective hands and seals, the day and year first above mentioned. Sealed and delivered > A. B. (l. s.) in the presence of ) C. D. (l. s.) case ( NO. VIII. GENERAL FOEMS OF COVENANTS. 1. By Lessee with Lessor. foTen^ts. ^^^ ^^^ ^^''^ [lessee] doth hereby, for himself, his heirs,i 1 The covenantor covenants for his heirs, for the reasons explained ante, ^ 460, et seq. of this volume. APPENDIX. 583 executors, administrators, and assigns,! covenant with the General said [lessor,] his heirs, and assigns,^ that, &c. covenan ?. 2. By Two Lessees, jointly and severally with Lessor. And the said [lessees] do hereby jointly, for themselves, their heirs, executors, administrators, and assigns, and each of them severally doth hereby, for himself, his heirs, exe- cutors, administrators, and assigns, and as to and concern- ing only his own acts, deeds, and defaults, covenant with the said [lessor,] his heirs, and assigns,^ that, &c. 3. By Lessee with Husiand and Wife, seized in Right of the Wife. And the said [Zessee] doth hereby, for himself, his heirs, executors, administrators, and assigns, covenant with the said [husband,] and , his wife, and the heirs and as- signs of the said [wife,] that, &c. 4. By each of Two Lessors, to the Extent of a Moiety of Damages. And each of them the said [lessors,] severally and apart from the other of them, doth hereby, for himself, his heirs, executors, and administrators, and so as to be answerable or accountable only to the extent of one equal half-part of the damages to be recovered under or by virtue of the cove- nant hereinafter contained, covenant with the said [lessee,] his executors, administrators, and assigns,* that, &c. 5. By each of two Lessees, on an Assignment of their respective Leases, by one Deed, as to the Lands com- prised in his Lease. And the said A. B. doth hereby, for himself, his heirs, 1 The covenant should extend to the assigns, to guard against any question arising on the second rule in Spencer's case. ^ If the lessor be seized in fee ; but, if possessed of a term only, then, kis executors, administrators, and assigns. , ^ If the lessor be seized in fee ; but, if possessed of a terra only, then, his executors, administrators, and assigns. * His heirs, executors, administrators, and assigns, if the lease be granted to the lessee and his heirs, (as special occupants,) for a life or lives. 584 APPENDIX. General co- executors, administrators, and assigns, and so far only as venants. j.g]ates to or concerns the said messuage or tenement and premises, comprised in and demised by the said indenture of lease, bearing date on or about the said day of ; and the said C. D. doth hereby, for himself, his heirs, executors, administrators, and assigns, and so far only as relates to and concerns the said messuage or tene- ment and premises, comprised in and demised by the said indenture, bearing date on or about the said day of , covenant, &c. NO. IX. SPECIAL FOKMS OP COVENANTS, THAT MAY BE mSERTED IN A LEASE. 1. To Pay Rent. s ecial co- ^^^ ^^^ ®^'*^ lessee doth hereby, for himself, his heirs, venauts. executors, administrators, and assigns, covenant with the said lessor, that he, the said lessee, his executors, adminis- trators, and assigns, will, during the said term, pay unto the said lessor the rent hereby reserved, in manner hereinbefore mentioned, without any deduction whatsoever. 2. To Pay Taxes. And also will pay all taxes, rates, duties, and assessments whatsoever, now charged, or hereafter to be charged, upon the said demised premises, or upon the said lessor, on account thereof, (excepting the land-tax, and all such other taxes, rates, duties, and assessments, or any portion thereof, which the lessee is or may be by law exempted from.) 3. To Repair. And also will, during the said term, well and sufficiently repair, maintain, pave, empty, cleanse, amend, and keep the said demised premises, with the appurtenances, in good and substantial repair, together with all chimney-pieces, windows, doors, fastenings, water-closets, cisterns, parti- tions, fixed presses, shelves, pipes, pumps, pales, rails, APPENDIX. 585 locks and keys, and all other fixtures and things which, at Special co- any time during the said ternn, shall be erected and made,^®° when, where, and so often as need shall be. 4. To Paint Outside every Year. And also that the said lessee, his executors, administra- tors, and assigns, will, in every year in the said term, paint all the outside wood-work and iron-work belonging to the said premises, with two coats of proper oil colors, in a workman-like manner. 5. To Paint and Paper Inside every Year. And also that the said [lessee,] his executors, administra- tors, and assigns, will, in every year, paint the inside wood, iron, and other works, now or usually painted, with two coats of proper oil colors, in a workman-like manner ; and also re-paper, with paper of as good a quality as at pre- sent, such parts of the premises as are now papered ; and also wash, stop, whiten, or color such parts of the said pre- mises as are now plastered. 6. To Insure from Fire, and to Reiuild in case of Fire. And also that the said lessee, his executors, administra- tors, and assigns, will forthwith insure the said premises hereby demised, to the full value thereof, in some respect- able insurance office, in the joint names of the said lessor, his executors, administrators, and assigns, and the said les- see, his executors, administrators, or assigns, and keep the same so insured during the said term ; and will, upon the request of the said lessor, or his agent, show the receipt for the last premium paid for such insurance for every current year ; and as often as the said premises hereby demised shall be burnt down, or damaged by fire, all and every the sums or sum of money, which shall be recovered or received by the said [lessee,] his executors, administrators, or assigns, for or in respect of such insurance, shall be laid out and expended by him in building or repairing the said demised premises, or such parts thereof as shall be burned down or damaged by fire as aforesaid. 586 APPENDIX. 7. That the [Lessor] may Enter to Repair. Special co- And it is hereby agreed that it shall be lawful for the said lessor, and his agents, at all seasonable times during the said term, to enter the said demised premises to take a schedule of the fixtures and things made and erected there- upon, and to examine the condition of the said premises ; and further, that all wants of reparation which, upon such views, shall be found, and for the amendment of which notice in writing shall be left at the premises, the said les- see, his executors, administrators, and assigns, will, within three calendar months, next after every such notice, well and sufficiently repair, and make good accordingly. 8. Not to Use the Premises as a Shop. And also that the said lessee, his executors, administra- tors, and assigns, will not convert, use, or occupy the said premises, or any part thereof, into or as a shop, warehouse, or other place for carrying on any trade or business whatso- ever, or suffer the said premises to be used for any such purpose, or otherwise than as a private dwelling-house, with- out the consent, in writing, of the said lessor. 9. Not to Assign without Leave. And also that the said [lesseel shall not, nor will, during the said term, assign, transfer, or set over, or otherwise by any ^ct or deed procure the said premises, or any of them, to be assigned, transferred, or set over, unto any person or persons whomsoever, without the consent, in writing, of the said \lessor^ his executore, administrators, or assigns, first had and obtained. 10. To Leave the Premises in Good, Repair. And further, that the said llessee"] will, at the expiration or other sooner determination of the said term, peaceably surrender and yield up unto the said lessor the said premises hereby demised, with the appurtenances, together with all buildings, erections, and fixtures, now or hereafter to be built or erected thereon, in good and substantial repair and condition in all respects, reasonable wear and tear, and damage by fire only excepted. APPENDIX. 587 11. To Insure Future Buildings, when Covered in. And also that he the said [Zessce,] his executors, administra- Covenants tors, or assigns, shall and will, at his and their own expense, ''y'^^^^®' from time to time insure, or cause to be insured, and during the said term kept insured, every additional building which may hereafter, with such approbation as is hereinafter mentioned, be built on the said ground hereby demised, or any part thereof, and effect the same within six days after each such building shall be built or covered in ; and will increase the amount of such insurances respectively, when and as each such building shall be completed, so as to make the sum insured thereon equal to three fourth parts, at least, of the then value thereof. 12. To lay out a given Sum in Repairs. That he, the said [lessee,] his executors, administrators, or assigns, will, within the first three years of the said term hereby granted, lay out and expend the sum of , at least, in and upon the substantial repairs of the said de- mised premises, and every part thereof; the application of the said sum, and the said reparation of the said premises as aforesaid, to be from time to time surveyed, inspected, and approved by such proper person or persons as the said [lessor,] his heirs, or assigns, shall appoint and direct to survey and inspect the same. And also that he, the said [lessee,] his executors, administrators, and assigns, will, when required, produce and deliver to the said [lessor,] his heirs, or assigns, the bills and receipts of the different tradesmen employed in doing such repairs as aforesaid, for the respective sums to be paid them for that purpose, or duplicates thereof. 13. To pay Share of Expense of Repairing Ways. And also will, from time to time, pay and allow a rea- sonable proportion towards the expenses of making, sup- porting, and repairing all ways, roads, pavements, party- walls, or party-fence walls, or fences, gutters, drains, sew- ers, pipes, and watercourses, belonging, "or which at any time shall belong to the premises hereby demised, or which 588 APPENDIX. Covenants shall be used for the convenience of the same, or any part by lessee, thereof, in common with said premises near or adjoining thereto, or which shall be reasonably required by the public authorities, to be made and formed for the purpose of being so used, and towards the expenses of cleansing such gutters, drains, sewers, pipes, and watercourses, such proportion to be ascertained by the architect or surveyor for the time being of the said public authorities ; and that, in default of payment of such proportion, the same shall be recoverable as or in the nature of rent in arrear. r 14. Another Form. And also that he, the said [Zessee,] his executors, admi- nistrators, and assigns, shall and will, from time to time during the said term, pay a reasonable share of the charges of making, repairing, and cleansing all party-walls, fences, sewers, drains, gutters, and other easements belonging, or which shall belong to the said premises hereby demised, in common with the owners or occupiers of any adjoining premises. 15. To "procure Supply of Water for Demised Premises. And also that he, the said {lessee,^ his executors, admi- nistrators, and assigns, shall and will, during the said term hereby granted, procure the supply of water for the said messuage and premises hereby demised from the Croton Water Company ; provided that such company so to be named shall yield water for that supply of as good quality, in a sufficient quantity, and on as reasonable terms, as the same company shall supply other premises in the same vicinity or neighborhood, or as the premises hereby de- mised could be supplied by any other company or persons. 16. By Lessee of a Puhlic House, to purchase his Porter of Lessor. That he, the said [Zessee,]-his executors, administrators, and assigns, will, at all times during the said term, as often as his or their occasion shall require, purchase of and from the said [lessor,] his executors, or administrators, either alone, or jointly with his or their partner or partners for the APPENDIX. 589 time being, or such other person or persons carrying on the covenants business of brewers as he, the said [lessor,] his executors, ^ i^^^^®- or administrators, shall appoint, all the beer, called porter, that shall be sold and disposed of in the said house, called the , or drawn in the same for sale ; and shall not deal or contract with any other person or persons for any porter, to be sold or drawn in the said house ; provided that the said [lessor,] his executors, or administrators, shall at such times deal in and vend such porter as aforesaid, and be willing to supply the same to the said [lessee,] his exe- cutors, administrators, and assigns, at the fair current mar- ket price thereof. And also that if, at any time hereafter during the said term, the said [lessee,] his executors, admi- nistrators, or assigns, shall grant any underlease of, or assign over his interest in, the said premises, there shall be contained in such underlease, or in the deed whereby his interest shall be assigned, a covenant on the part of the underlessee or assignee, his or her executors, administra- tors, or assigns, to be entered into with the said [lessor,] his executors, and administrators, who shall be made parties for the purpose, to the same or the like effect, and subject to the same or the like proviso, mutatis mutandis, as is lastly hereinbefore contained. 17. That Lessor and his Tenants shall have Watercourse through Demised Premises, And also that the said [lessor] and his assigns, and his and their tenants, shall have free liberty of watercourse in and through the premises hereby demised, from any adjoin- ing premises, or other estates belonging to the said lessor, by means of the sewers, drains, or channels there, to carry off the water from the other houses, near or adjoining thereto, the person or persons forming or using any such water- courses making good all damage occasioned thereby, and contributing to the expense of k,eeping in repair and cleans- ing the same. 18. Not to olstruct Lights, hy Building. And shall not, by building or otherwise, stop or obstruct any light or lights belonging to any messuage or tenement, 50 590 APPENDIX. Covenants the estate or interest whereof, in possession or in reversion, by is in the said [lessor.] 19. In a Building Lease, not to permit Thoroughfare over Premises. And also that the said [lessee,] his executors, administra- tors, or assigns, will not, at any time or times during the said term, permit any way or thoroughfare over or through any part of the said premises hereby demised. 20. Not to Assign Premises, or Underlet them for a Longer Term than a Year, without giving Lessor a Right of Preemption. And also that the said [lessee,] his executors, or adminis- trators, shall not nor will, at any time during the said term, assign and transfer the said premises, or any part thereof, or underlet the same, or any part thereof, for a longer term than one year, to any person or persons whomsoever, except a person or persons who shall have entered into partnership with him, the said [lessee,] his executors, or administrators, in the business which shall then be carried on by him or them, at the said factory and premises, or to whom the said [lessee,] his executors, or administrators, shall have assigned the whole or some part of his said busi- ness, without first offering to sell and assign the same pre- mises, with the buildings and erections thereon, to the said [lessor,] or other the person or persons who shall then be entitled to the reversion of the said premises, immediately expectant on the determination of the said term, at a fair valuation, to be made by two indifferent persons, one to be chosen by the said [lessee,] his executors, or administrators, and the other by the said [lessor,] or other the person or persons entitled as aforesaid ; and, in case of the disagree- ment of such two persons, then by an umpire, to be chosen for that purpose by such two persons, before they proceed to make such valuation ; and in case the sai.d [lessor,] or other the person or persons then entitled as aforesaid, shall refuse or decline to take to and purchase the said premises at such valuation, or shall omit or neglect to give notice of his OT their determination so to do, for the space of three APPENDIX. 591 calendar months next after such offer shall be made in writ- Covenants ing to him or them as aforesaid, it shall be lawful for the^^'®^^®^' said [lessee,] his executors, or administrators, to assign, or transfer, or underlet the said premises, or any part of the same, to any person or persons whomsoever, as he or they shall think fit. 21. To leave Assignment or Underlease at Office of Les- sor's Solicitor, for Registry. That in case the said premises, or any part thereof, shall be assigned or underlet for all or any part of the term hereby granted, every or any assignment or underlease to be so made shall, within three calendar months after the execution of the same, be left, for not less than seven days, at the office of the solicitor for the time being of the said [lessor,] his heirs, appointees, or assigns, to the intent that the same may be there registered, and such registry to be at the expense of the said [lessee,] his executors, adminis- trators, or assigns. 22. To keep the Orchards fully planted, and preserve same from Injury iy Cattle.^ And also that the said [lessee,] his executors, administra- tors, and assigns, will, at all times during the said term, keep the orchards full treed, and planted with good thriving young apple trees, of such sorts and sizes as the said [les- sor,] his heirs, or assigns, shall direct ; the said [lessee,] his executors, administrators, or assigns, taking the old decayed trees in lieu thereof ; and will fence out and pre- serve the same from being injured by cattle or otherwise, and not suffer any cattle, that may injure the trees in such orchards, to depasture therein. 23. To keep Lawn and Garden in Order. And also shall and will, at his and their own costs, keep up and preserve in good condition the lawn and garden 1 In addition to the forms contained in this division of the Appen- dix, a great variety of agricultural covenants will be found in the pre- cedents of farming leases inserted in a subsequent part. 592 APPENDIX. Covenants belonging to the said messuage, in the same order and y essee. f^yjjj gg (jjg game respectively are now in, and the fences and walls around and about the same ; and do, or cause to be done, in proper and reasonable times of the year, and in a proper manner, all necessary work in and to the same, and, in particular, for the preserving, cherishing, encourag- ing, and keeping in health and bearing the wall and other fruit trees, and the herbs, shrubs, plants, flowers, and roots now growing, or henceforth during the said term to grow therein, and for the due, orderly, and seasonably manur- ing, cultivating, and cropping the same, during the said term. 24. Not to convert Old Meadow into Tillage. And shall not nor will break up or convert into tillage any of the old meadow or pasture ground belonging to the said demised premises ; and shall not mow the same, with- out manuring every acre thereof with eight hogsheads of good well-burnt stone lime, or 120 seams of good rotten dung, and so in proportion for a less or greater quantity an acre, except such part of the meadow lands as shall have been well flooded with water in the winter preceding every mowlh. 25. Not to make Hedges, except under certain Conditions. And shall not nor will, at any time during the said term, permit or suffer the growth of the hedges to be cut, without new-making the same ; nor make any of the hedges on the said premises, unless the adjoining ground, if tillage ground, shall be in tillage for the first crop, and then shall and will new-make, cast, lade, dyke, and thatch such hedges in a husband-like manner. And shall not nor will permit any wood to be cut under seven years' growth, nor any in the last two years of the said term. And shall and will give notice, in writing, unto the said [lessors,] or one of them, their, or one of their heirs, or assigns, at least one clear month previously to the time of making any hedge, that the trees, plants, and saplings, which are intended to remain therein, may be marked. APPENDIX. 593 26. To provide Reed for Thatching, on a certain Allow- ance heing made to him. And further, that the said \lessee,'\ his executors, adminis- Covenants trators, and assigns, will, from time to time, and at all ^ times during the said term, find and provide reed for thatching the said messuage or tenement, barns, and stables, on being allowed after the rate of one guinea for every one hundred nitches, each nitch, when dry, to weigh twenty- eight pounds, one with another ; and will fetch and carry all materials for thatching the same, and find a sufficient quantity of spar-sticks gratis. 27. That Lessor may, in last Year of Term, enter on Part of Demised Premises, to prepare next Wheat Crop. And also that the said [lessor,] his heirs, or assigns, and his or their succeeding tenant, shall be at liberty, at any time after the 24th day of June, in the last year of the said term, to enter upon such part of the said demised lands, not exceeding twenty acres, as shall be in course for wheat in the succeeding year, the same to prepare for his or their wheat crop, and do the needful husbandry thereon, allow- ing unto the said [lessee,] his executors, administrators, or assigns, a reasonable compensation therefor. 28. The Lessor Covenants for Quiet Enjoyment. And the lessor doth hereby, for himself, his heirs, execu- Covenants tors, 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 peaceably possess and enjoy the said de- mised premises for the term hereby granted, without any interruption or disturbance from the said lessor, his execu- tors, administrators, or assigns, or any other person or per- sons lawfully claiming by, from, or under him, them, or any of them. 29. To find Lessee Rough Timber, for Re-pairs. And also that he, the said [lessor,] his heirs, and assigns, 50* 594 APPENDIX. Covenants will, from time to time, and at all times during the said y essor. {g^,^^ &ad, provide, and allow unto the said [lessee,] his executors, administrators, and assigns, on the said demised premises, or within four miles thereof, a sufficient quantity of rough timber, for keeping the said premises, with the gates, posts, pales, rails, and fences thereon, in proper con- dition and repair, upon request in writing, specifying the quantity wanted for that purpose, being made by the said [lessee,] his executors, administrators, or assigns. 30. To Rebuild or Repair, in case of Fire. That in case the said premises hereby demised, or any part thereof, shall, at any time or times during the con- tinuance of this demise, happen to be damaged or destroyed by fire, he, the said [lessor,] his heirs, or assigns, will, with all convenient speed, repair or rebuild the same premises which shall or may happen to be damaged or destroyed by fire as aforesaid, and make the same again fit for the habitation of the said [lessee,] his executors, administrators, or assigns. 31. To lay out a given Sum in Repairs, in case of acci- dental Fire. That if the said buildings hereby demised, or any part thereof, shall, at any time or times from the day of the date hereof, until the commencement, and thence during the continuance of the term hereby granted, be burned down or damaged by fire, (other than through the wilful neglect or default of the said [lessee,] his executors, administrators, or assigns,) and in case every or any such assignment or underlease, shall have been so left for registry as aforesaid, and no hazardous trade or business shall be carried on upon the said premises, without consent as aforesaid, but not otherwise, the said [lessor] shall forthwith lay out and expend (whether any insurance from fire shall have been eflTected upon the said premises or not,) the sum of , or so much thereof as may be sufficient for making good such loss or damage, or so far as the same will extend for that purpose, upon the same plan as before such fire hap- pened, or such other plan as by the surveyor for the time APPENDIX. 695 being of the said [lessor,] his heirs, appointees, or assigns, Covenants ; shall be approved. ^ ®^^° ' ' 32. To renew the Lease. And that the said [lessor,] his executors, administrators, or assigns, will, on or before the expiration of this present lease, at the request and expense of the said [lessee,] his executors, administrators, or assigns, grant and execute to him and them a new lease of the premises hereby demised, with their appurtenances, for the further term of twenty-one years, to commence from the expiration of the term hereby granted, at the same yearly rent, payable in the like man- ner, and subject to the like covenants, provisos, and agree- ments, (except a covenant for further renewal,) as are con- tained in these presents. 33. For Title, in an Assignment of Leaseholds. And the said [assignor] doth, &c., that, notwithstanding covenants any act, deed, or thing whatsoever made, done, or suffered ^f ig^le^'^"'^ to the contrary, by him, the said [assignor,] the said [here- inbefore in part recited,] indenture of lease is still in full force for the said residue of the said term thereby granted, and neither void nor voidable. And also that, notwith- standing any such act, deed, or thing as aforesaid, he, the said [assignor,] now hath in himself good right, by these presents, to assign the said messuage or tenement and pre- mises, with their rights, members, and appurtenances, unto the said [assignee,] for the residue of the said term of years, in manner aforesaid. And also that, subject to the payment of the rent, and the observance and performance of the covenants, provisos, and conditions in the said lease contained, and by or on the part of the [lessee,] his execu- tors, administrators, or assigns, to be observed and per- formed, it shall be lawful for the said [assignee,] his execu- tors, administrators, or assigns, henceforth, during the resi- due of the said term, to enter into and upon, hold, and enjoy the said messuage or tenement and premises, with their rights, members, and appurtenances, and to receive and take the rents and profits thereof, without any hin- drance or interruption whatsoever by himj the said [as- 596 APPENDIX. Covenants signor,] his executors, or administrators, or any other per- of lease^"""^ soti or persons whomsoever, lawfully, or equitably, and rightfully claiming, or to claim any estate, right, title, or interest, at law or in equity, of, in, to, or out of the same messuage or tenement and premises, or any part thereof, by, from, through, under, or in trust for him, the said [assignor,'\ his executors, or administrators. And that free and clear, and freely and clearly and absolutely discharged, or otherwise, by him, the said [assignor,] his heirs, execu- tors, or administrators, at his or their own costs in all things, protected and kept indemnified from and against all former and other assignments, surrenders, forfeitures, and cause or causes of forfeiture, arrears of rent, estates, titles, charges, and incumbrances whatsoever, at any time or times heretofore, and to be at any time, and from time to time hereafter, made, committed, occasioned, or suffered by the said [assignor,] his executors, or administrators, or any person or persons rightfully claiming, or to claim, any estate, right, title, or interest, at law or in equity, of, in, to, or out of the same messuage or tenement and premises, or any part thereof, by, from, through, under, or in trust for him, the said [assignor,] his executors or administrators, or by his or their acts, means, consent, default, privity, or pro- curement. And moreover, that he, the said [assignor,] his executors, and administrators, and all persons whosoever lawfully or equitably and rightfully claiming, or to claim, any estate, right, title, or interest, at law or in equity, of, in, to, out of, or upon the said messuage or tenement and pre- mises, or any part thereof, by, from, under, or in trust for him, the said [assignor,] his executors, or administrators, will henceforth, during the residue of the said term, upon every reasonable request, and at the cost of the said [as- signee,] his executors, administrators, or assigns, make, do, and execute, or cause to be made, done, and executed, all such lawful and reasonable acts, deeds, and assurances in the law whatsoever, for the further, better, or more satis- factorily assigning or assuring the said messuage or tene- ment and premises, or any part thereof, with the rights, members, and appurtenances, unto the said [assignee,] his executors, administrators, or assigns, for the then residue of the said term df years, as by the said [assignee,] his APPENDIX. 597 executors, administrators, or assigns, or his and their coun- sel in the law, shall be reasonably required, and be ten- dered to be made, done, and executed. 34. By Assignee of a Lease for future Payment of Rent and Performance of Covenants, and for the Assignor''s Indemnity. And the said lassignee"] doth hereby, for himself, &c., Covenants that he, the said [assignee,^ his executors, administrators, or ofiease. assigns, will, from time to time, during the residue of the said term, pay the said yearly sum of , when and as the same shall henceforth become due, and observe and perform the covenants, provisos, and conditions, in the same indenture contained, and which, by or on the part of the said [Zessee,] his executors, administrators, and assigns, are henceforth to be observed and performed. And also will, at all times hereafter, at his or their own costs, defend, save harmless, and keep indemnified the said [assignor,^ his heirs, executors, and administrators, and his and their lands, tenements, goods, chattels, and effects, against all payments, costs, losses, damages, and expenses whatsoever, which he or they shall or may make, pay, sustain, or be liable to, on account of the said yearly rent, which shall henceforth become due and payable, or any part thereof, and on account of the breach, non-performance, or non- observance by or on the part of the said [assigneei^ his executors, administrators, or assigns, of all and every or any of the covenants, provisos, and conditions contained in the said indenture of lease, to be observed and performed by the said {lessee,'] his executors, administrators, and assigns, and also against all actions and suits at law or in equity, which shall be commenced or prosecuted against the said [assignor,] his heirs, executors, or administrators, for or on account of the said rent, covenants, and provisos, and conditions, or any of them, and henceforth to be paid, observed, and performed. 598 APPENDIX. NO. X. PEOVISOS AND DECLARATIONS. 1. For "Lessor's Reentry, on Lessee'' s Non-payment of Rent or Non-performance of Covenants} Provisos Provided always, and it is expressly agreed, that if the and decia- ygjjt 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 of any of the covenants and agreements herein contained, on the part of the said lessee, his executors, administrators, and assigns, then, and in either of such cases, it shall be lawful for the said lessor, at any time thereafter, into and upon the said demised premises, or any part thereof, in the name of the whole, to reenter, and the same to have again, repossess, and enjoy, as of his or their former estate, any thing hereinafter contained to the con- trary notwithstanding. 2. For Lessor''s Reentry, on Non-payment of Rent after Bemand or Notice. Provided always, that if the rent hereby reserved, or any part thereof, shall at any time be in arrear for the space of one year, and not paid within six calendar months after the same shall have become due, and be demanded by a notice in writing, to be delivered to the said [Zessee,] his executors, administrators, or assigns, or to be affixed on some conspi- cuous part of the premises hereby demised, or left with the occupier, or some or one of the occupiers of the same pre- mises, or any part thereof, it shall be lawful for the said \lessor,'\ &c. 1 The advantage of a proviso for reentry consists in its enabling the lessor to wrest his property from the hands of a troublesome or insol- vent tenant, upon whom an action or distress for rent would be thrown away ; it affords the lessor an indemnity against future loss, though he cannot by its agency recover past claims. APPENDIX. 599 3. That Lessor shall not Reenter for a Forfeiture, without Notice. Provided always, that no breach of any of the covenants Provisos hereinbefore contained, (except the covenant for payment ratioS?'" of rent, and the covenant for insurance against fire,) shall occasion any forfeiture of these presents, or the estate hereby granted, or give any right of reentry pursuant to the clause in that behalf hereinbefore contained, unless or until the said [lessor,] his heirs, or assigns, shall have given unto the said [lessee,] his executors, administrators, or as- signs, or unto the tenant in the actual possession of the pre- mises, or, in case there shall be no tenant in the actual possession of the premises, shall have affixed upon some notorious part of the premises a notice in writing, bearing date on the day of giving or affixing such notice, and speci- fically mentioning the breach or breaches of covenant com- plained of, and expressly notifying that if the same be not remedied within the space of three calendar months from the date of such notice, the said [lessor,] his heirs, or as- signs, intends to enter upon the premises as forfeited, pur- suant to a clause for that purpose in the lease thereof con- tained, and unless such breach or breaches shall not be remedied within the space of three calendar months from the date of such notice. 4. For Lessor^s Reentry into that Part only of Premises, in respect of which Lessee shall make Default. Provided always, and it is hereby expressly agreed, that if any one or more of the rents hereby reserved, or any part thereof respectively, shall be unpaid by the space of 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-per- formance, or non-observance of all or any one or more of the covenants or agreements herein contained, on the part of the said [lessee,] his executors, administrators, or assigns, then, and in any or either of the said cases, it shall be law- ful for the said [lessor,] his heirs, oV assigns, to reenter into or upon that part, or those respective parts, only of the said 600 APPENDIX. Provisos premises hereby demised, in respect of which there shall rations. have been such non-payment, non-performance, non-observ- ance, or default ; it being the true intent and meaning of these presents, that the right of reentry of the said [lessor,] his heirs, or assigns, under this present provision, shall not extend or be applicable to any part or parts of the said pre- mises hereby demised, in respect whereof the rent, cove- nants, and agreements, shall have been duly paid, per- formed, and observed. 5. For Suspension or Apportionment of Rent, on Pre- mises becoming TJninhdbitable from Fire. Provided always, and notwithstanding any thing herein- before contained, that if the said messuage or tenement and premises hereby demised, shall be materially injured by fire, so as to be rendered unfit for habitation, and for carry- ing on the business of a coffee-house and tavern, and the said [lessee^ his executors, administrators, or assigns, or his or their under-tenants, shall actually quit the occupa- tion of the same messuage, &c. ; then, during such time as the same messuage, &c., shall remain unfit for habita- tion, and the occupation of the same shall be quitted as aforesaid, the rent hereby reserved shall be suspended or apportioned, so and in such manner that the said [Zessee,] his executors, administrators, or assigns, shall be entitled to retain, or be discharged from, so much and such part of the same rent, as shall be in proportion to the time or number of days during which the said messuage, &c., shall remain unfit for habitation, and the said [lessee,] his executors, administrators, and assigns, or his or their under-tenants, shall actually cease to inhabit the same. 6. Another Form. And further, that in case the said messuage or tenement and premises, or such of them as shall at any time or times during the said term be destroyed or damaged by fire, shall not be rebuilt or repaired by the said [lessor^ his heirs, or assigns, within the space of six calendar months next after such fire happening, then the said rent hereby reserved shall cease and be suspended, until the said premises, so APPENDIX, 601 destroyed or damaged by fire, shall be rebuilt, or repaired Provisos fit for the occupation of the said [lessee,] his executors, j.j^tio„s. administrators, or assigns ; iind at that time the said rent shall revive and recommence, and become again payable in manner aforesaid. 7. For Cesser of Term, in case of Fire, the Tenant having the Option of giving up Possession, or of Repairing, and continuing Tenant. Provided always, nevertheless, (and it is hereby further declared and agreed,) that if the said messuage or tene- ment and premises hereby demised, or intended so to be, or any part thereof, or any other building erected, or to be erected on the said piece or parcel of ground hereby de- mised, or intended so to be, or any part thereof, shall, at any time or times during the said term of years, be destroyed or damaged by fire, the said [lessee,] his execu- tors, administrators, and assigns, shall have the option, at any time within fourteen days after such fire, of giving notice that the said term hereby granted shall cease or determine on the next rent-day after such fire ; and in that case, and from that time, provided an insurance shall have been made and kept on foot, pursuant to the covenant of the said [lessee,] hereinbefore contained, and provided all arrears of rent shall be paid up to that day, the said term shall cease and determine ; and the said [lessee,] his execu- tors, administrators, and assigns, shall be discharged of and from any further payment of the rent hereby reserved, or performance of the covenants, provisos, and conditions hereinbefore contained ; and in that case, also, the money which shall become payable, by virtue of any such insu- rance, and the remaining materials of the buildings, shall become and be the absolute property of the said [lessor,] his heirs, or assigns ; or the said [lessee,] his executors, administrators, or assigns, shall have the liberty of conti- nuing the tenant or tenants for the residue of the said term ; and, in that case, he or they shall continue such tenant or tenants, and shall reinstate the buildings so destroyed or damaged by fire, to the, satisfaction of the surveyor for the time being of the said [lessor,] his heirs, or assigns, within after such fire ; then the remaining materials of the 51 602 APPENDIX. Provisos buildings shall become and be the property of the said rations. [lessee,'] his executors, administrators, or assigns ; and as soon as the loss or damage by fire shall be repaired, the sum to be received for such insurance shall be paid to him or them. 8. For Apportionment of Rent, on Surrender, ly Lessee, of Part :of demised Premises. And it is hereby further declared and agreed, that so much and such part of the said premises as were granted to the said [lessee,] by the said (hereinbefore in part recited) indenture of lease, and are not hereby surren- dered to the said [lessor,] as aforesaid, shall henceforth be held and enjoyed by the said [lessee,] his executors, admi- nistrators, and assigns, at the reduced yearly rent of , by way of apportionment of the said rent of ■, and under and subject to the same covenants, provisos, and con- ditions, as are contained in the same indenture of lease. 9. Between Vendor [Lessor] and Purchaser, for Appor- tionment of Rent, on a Sale of the Reversion of Part of the Demised Premises. And the said [vendor-lessor] and [purchaser,] as far as they lawfully may or can, do hereby mutually consent and agree, and also direct and appoint, that the said yearly sum of , payable by the said [lessee,] as aforesaid, shall, (sub- ject to a proportional part of the deductions to be made out of the said rent,) henceforth, during the residue of the term of the said [lessee] in the said lands and hereditaments hereby released and conveyed, or intended so to be, be payable and paid to the said [purchaser,] his heirs, and assigns, as his and their proportion of the said rent, for or in respect of so many and such parts of the lands and here- ditaments out of which the same rent is reserved as are hereby released and conveyed, or intended so to be. 10. For Determination of Lease, at the End of first Four- teen Years, at Option of Lessee. Provided always, that if the said [lessee,] his executors, administrators, or assigns, shall be desirous of quitting the APPEKDIX. 603 said premises, and surrendering and delivering up this pre- Provisos ^ and dei ' ' rations. sent indenture of lease, and of such his, her, or their desire f° ^"^ *" shall give notice in writing, to be delivered to the said [lessor,] his heirs, or assigns, or to be left at his, her, or their respective usual or last knovcn place of abode, at least twelve calendar months before the end or expiration of the first fourteen years of the said term hereby granted, and if the said yearly rent hereby reserved shall be paid up to the time of such quitting, and the said premises left in such good and sufficient repair as hereinbefore mentioned, and all and every the said taxes and assessments paid and discharged ; then, from and immediately after the end and expiration of the first fourteen years of the said term hereby granted, these presents, and every thing herein contained, shall thenceforth cease and determine. 11. For Determination of Lease by Either, at the End of first Three or Five Years of the Term, on giving Notice to the Other. Provided alvi'ays, that if the said [lessor,] his executors, administrators, or assigns, shall be desirous of putting an end to the said term of seven years hereby granted at the end of the first three or five years thereof, and shall give unto the said [lessee,] his executors, administrators, or assigns, six calendar months' notice, in writing, of such his or their desire, previously to the expiration of the first three or five years ; or if the said [lessee,] his executors, administrators, or assigns, shall be desirous to quit the said premises hereby demised at the end of the first three or five years of the said term of seven years, and of such his or their desire shall give six calendar months' notice, in writing, to the said [lessor,] his executors, administrators, or assigns, before the expiration of the said first three or five years, then, and in either of the said cases, these pre- sents, and every clause and thing herein contained, shall, at the expiration of the first three or five years of the said term, cease and determine, without prejudice, nevertheless, to any remedy which either of the said persons, parties hereto, or his respective representatives, may have against the other of them, or his representatives, for breach, non- observance, or non-performance of the said covenants or 604 APPENDIX. Provisos agreements hereinbefore contained, or any or either of and deck- , rntions. tiieni, 12. In Lease for Lives, or for Years determinalle with Lives, that Proof of Lives leing in Existence shall lie on Lessee. Provided always, that when and as often as any question shall arise in any court of justice, whether the persons or person on whose death the term hereby granted is made determinable be living or dead, it shall be incumbent on the person or persons then interested in, or claiming to have the right of, the said premises, by or under this present demise, to prove such person or persons to be living ; and that, in default of such proof, such person or persons shall be deemed and taken to be dead, any law or usage to the contrary notwithstanding. 13. To enahle Tinder-Lessee to pay his Rent to Original Lessor. And it is hereby further declared and agreed that the said [under-lessor,'] his executors, or administrators, shall pay the original rent resei'ved to the said [original lessor,^ his heirs, or assigns, within seventeen days next after the same shall become due, quarterly ; but in case he shall neglect or refuse so to do, then it shall be lawful for the said [under-lessee,] his executors, administrators, or assigns, to pay the same unto the said [original lessor,] his heirs, or assigns, by and out of the rent hereby reserved, if he or they shall accept thereof; and that his or their receipts shall be good and effectual discharges for so much of the rents for which such receipts shall be given. 14. That, on Lessee'' s Default, Lessor may insure, and reco- ver Premiums, as Rent in Arrear. And that if the said [lessee,] his executors, administra- tors, or assigns, shall, at any time during the said term, neglect or refuse to effect, or renew, and continue such insurance or insurances, or to produce such policy or poli- cies, or any such receipt as aforesaid, then it shall be law- ful for the said [lessor,] his heirs, executors, administrators, APPENDIX. 605 or assigns, to insure the said premises in such manner as he or they shall think proper ; and the amount of the sum or sums which shall from time to time be expended in so doing, shall be added to the said yearly rent hereby re- served, and shall or may be recovered in the same manner as rent in arrear ; and that, from time to time, in case of fire, all such sum and suras of money as shall be recovered or received, by virtue of such insurance or insurances, shall, with all convenient speed, be applied, expended, and paid out, under the direction of the said \lessor,'] his heirs, or assigns, or of his or their surveyor, in rebuilding or restoring and repairing the said erections, buildings, and premises ; and, in case of deficiency, the same shall be made good by the said [Zessee,] his executors, administra- tors, or assigns. NO. XI. CONCLUSIONS OF LEASES. \. In a Lease between Private Individuals, when executed Conolu- , -n ,■, sioas of by Both. leases. In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. 2. In a Lease ly a Corporation. In witness whereof the said \lessors'] have, to one part of these presents, caused their common seal to be affixed, and to another part of these presents the said [lessee'] hath set his hand and seal, the day and year first above written. NO. XII. A Lease of City Property, with Covenants. This indenture, made the first day of April, one thousand Parties, eight hundred and forty-four, between A. B., of the city °'' of New York, Esquire, party of the first part, and C. D., of said city, merchant, party of the second part, witness- 51* 606 APPENDIX. the pre mises ; etii, that the said party of the first part, for and in consider- ation of the rents, covenants, and agreements hereinafter mentioned, reserved, and contained, on the part and behall of the said party of the second part, his executors, adminis trators, and assigns, to be paid, kept, and performed ; has granted, demised, and to farm letten, and by these presents ^rant and does grant, demise, and to farm let unto the said party of the second part, his executors, administrators, and assigns, all that certain messuage or dwelling-house and lot of ground, situate, lying, and being in the fifteenth ward of the said city of New York, and known as number , in Tenth Street, bounded as follows, to wit : beginning at a point on the southerly side of Tenth Street, distant westerly from the south-westerly corner of Broadway and Tenth Street three hundred feet, and running thence westerly in front twenty-five feet, thence southerly, at right angles to Tenth Street, ninety-eight feet, thence easterly parallel to Tenth Street, twenty-five feet, thence northerly, at right angles to Tenth Street, ninety-eight feet, to Tenth Street, at the point or place of beginning. To have and to hold the said abovementioned and described premises, with the ap- purtenances, unto the said party of the second part, his executors, administrators, and assigns, from the first day of May, one thousand eight hundred and forty, for and during, and until the full end and term of twenty-one years thence next ensuing, and fully to be complete and ended ; yielding and paying therefor unto the said party of the first part, his heirs, or assigns, yearly and every year during the said terra hereby granted, the yearly rent or sum of five hun- dred dollars, lawful money of the United States of America, in equal quarter-yearly payments, to wit, on the first day of May, August, November, and February, in each and every proviso for of the said years, provided always, nevertheless, that if the reentry, yearly rent above reserved, or any part thereof, shall be behind or unpaid for the space of fifteen days next after any of the days of payment, whereon the same ought to be paid as aforesaid, it being first lawfully demanded ; or if default shall be made in any of the covenants herein con- tained, on the part and behalf of the said party of the second part, his executors, administrators, and assigns, to be paid, kept, and performed ; then and from thenceforth reserva- tion of rent; APPENDIX. 607 it shall and may be lawful for the said party of the first part, his heirs, or assigns, into and upon the said demised premises, and every part thereof, wholly to reenter, and the same to have again, repossess, and enjoy, as in his and their first and former estate ; and that from and after such reentry made, this lease, and every thing therein contained, shall determine and be utterly void to all intents and pur- poses ; and also, in the event of the said rent remaining and for due and unpaid in manner aforesaid, it shall and may be ^ ^^^' lawful for the said party of the first part, his executors, administrators, and assigns, to distrain for any rent that may remain due thereon, any thing hereinbefore contained to the contrary thereof in anywise notwithstanding. And the said party of the second part, for himself, his Lessee , . , , . . , , , covenants heirs, executors, and admmistrators, doth covenant and to pay agree to and with the said party of the first part, his heirs, '^^"'' and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, shall and will yearly and every year during the said term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs, or assigns, the said yearly rent above reserved, on the days and in the manner limited and prescribed as aforesaid for the payment thereof, with- out any deduction, fraud, or delay, according to the true intent and meaning of these presents, (save and except at except in all times during the said term, such proportionable part of ' the said yearly rent as shall or may grow due" during such time as the said tenement shall, without the hinderance of the said C. D., his executors, administrators, or assigns, be and remain uninhabitable by reason of accidental fire.) And also that he, the said C. D., shall and will pay, or to pay- cause to be paid, all taxes, assessments, and impositions otj^ej, whatsoever, (ground-rent only excepted,) which at any'^^^'^S^^' time, during the continuance of the said term, shall or may be assessed or imposed on the said premises, or any part thereof, or on the said A. B., his executors, administrators, or assigns, on account thereof. And also that he, the said C. D., his executors, adminis- to keep the trators, or assigns, shall and will, at his or their own proper ^gp^f^ '" costs and charges, cause to be well and sufficiently painted all the outside wood and iron work belonging to the said 608 APPENDIX. damages by fire excepted; not to carry on offensive trades : assign or underlet without the consent of lessor ; ;uad suiTen- der at the end of the term. premises every third year during the continuance of the said term, and shall and will also, at his and their like proper costs and charges, during the said term, keep in good, suffi- cient, and tenantable repair, as well all and singular the glass and other windows, rooms, floors, partitions, ceilings, walls, roof, gutters, fences, pavements, grates, sinks, privies, drains, wells, and watercourses, as also all and every other the parts and appurtenances of the said premises, (damage happening by casual fire only excepted.) And also that he, the said C. D., his executors, adminis- trators, or assigns, shall not, nor will at any time during the continuance of the said term, use or carry on, or suffer and permit to be used and carried on, in or upon the said pre- mises, or assign over this lease, or any part of the premises herein contained, to any person or persons using or carry- ing on the trade, business, or calling of a maker of sedan or other chairs, baker, brewer, butcher, currier, distiller, dyer, founder, smith, soapboiler, schoolmaster or school- mistress, sugar-baker, auctioneer, pewterer, tallow chandler or tallow-melter, working brazier, tinman, tripe-boiler, pipe- maker, pipe-borer, plumber, or any other noxious and offen- sive trade, business, or calling whatsoever, without the con- sent, in writing, of the said A. B., his executors, administra- tors, or assigns, first had and obtained for that purpose. And also that he, the said C. D., his executors, adminis- trators, or any of them, shall not, or will at any time during the said term, demise, let, set, or assign over the said pre- mises, or any part thereof, to any person or persons whom- soever, for any term or time whatsoever, without the license and consent of the said A. B,, his heirs, or assigns, in writ- ing, under his or their hand, first had and obtained for such purpose. And also that, on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leave, surren- der, and yield up unto the said party of the first part, his heirs, or assigns, all and singular the said demised pre- mises, with their appurtenances, in such good, sufficient, and tenantable repair as aforesaid ;» together with all and every the doors, locks, keys, bolts, bars, chimney-pieces, APPENDIX. 609 grates, windows, shelves, and other things thereunto belong- ing, in as good plight and condition as the same now are, (reasonable use and wear thereof, and casualties happening by fire, only excepted.) And the said party of the first part, for himself, his heirs, executors, and administrators, doth covenant and agree to and with the said party of the second part, his executors, administrators, and assigns, by these presents, that the said party of the second part, his executors, administrators, or assigns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid on his or their part ; the said party of the second part, his execu- tors, administrators, and assigns, shall and may, at all times Lessor co- during the said term hereby granted, peaceably and quietly ™i™gjj_ ""^ have, hold, and enjoy the said demised premises, for andJ°y™™' ^ during the said term of years hereby granted, without any manner of let, suit, trouble, or hinderance of or from the said party of the first part, his heirs, executors, administra- tors, or assigns, or any other person or persons whomso- ever, lawfully claiming from, by, or under him, or any of them ; and that freed and discharged, or otherwise indem- nified of and from all former and other grants, sales, feoff- ments, demises, dower, debts, duties, judgments, ground- rents, due or to grow due thereon during the said term, and all other estates, rights, titles, charges, and incumbrances whatsoever, had, made, done, or suffered in any wise what- soever, by the said party of the first part, or by any other person or persons whatsoever, having or lawfully claiming any estate, right, title, or interest in the said premises, or any part or parcel thereof. And that the said A. B., his executors, administrators, or assigns shall and will, on or before the expiration of this present lease, on the request, and at the costs and charges of the said C. D., his executors, administrators, and assigns, grant and execute to him and them a new and fresh lease to renew of the premises hereby demised, with their appurtenances, *^®^^^^^' for the further term of twenty-one years, to commence from the expiration of the term hereby granted ; the same to be at the same yearly rent, payable in like manner, and under and subject to the like covenants, provisos, and agree- ments, (except a covenant for further renewal,) as are con- ill case of 610 APPENDIX. tained in these presents ; such new lease, however, to be granted and valid on condition that the said C. D., his exe- cutors, administrators, or assigns, do execute a counterpart thereof, and also pay the said A. B., his executors, adminis- trators, or assigns, the sum of five hundred dollars, at the time of executing said lease, as and by way of fine or pre- mium for the renewal thereof. And also that in case the said premises shall, at any time and rebuild during the said term, be destroyed or injured by an acci- dental fire, the said A. B., his executors, administrators, or assigns, shall and will forthwith, as soon as conveniently may be thereafter, proceed to rebuild and repair the same in as good condition as the said premises were in before such fire, and that in the mean time, and until said premises are rebuilt and put in good and tenantable order, the rent hereby reserved shall cease. In witness whereof, the parties to these presents have hereto set their respective hands and seals the day and year first above written. Sealed and delivered ) A. B. (l. s.) in the presence of ) C. D. (l. s.) NO. XIII. Agreement for Granting a Farming Lease-. Memorandum of an agreement made this day of -, in the year , between A. B., of — — , of the one part, and C. D., of , of the other part, whereby it is agreed that the said A. B. shall, on or before the first day of March, make and execute unto the said C. D., bis execu- tors, administrators, and assigns, a good and valid lease of all that messuage, piece or parcel of land, situate, &c., with the appurtenances thereunto belonging, for the term of years from the said first day of , at the yearly rent of dollars, payable half-yearly, clear of all deductions for taxes, or on any other account whatever ; the first payment of said rent to be made on the first day of September next ; and at and under the further yearly rent of five dollars for every acre, and so in proportion for a less quantity, of mea- APPENDIX. 611 dow or pasture ground which shall be ploughed or con- verted into tillage, contrary to a covenant to be contained in said lease, as hereinafter directed ; the first payment of said last-mentioned rent to be made on the first half-yearly day after such conversion into tillage as aforesaid. And in the said lease there shall be contained covenants on the part of the said C. D., his executors, administrators, and assigns, to pay the aforesaid rents, and to pay all taxes and assessments ; for doing all manner of repairs to the build- ings, hedges, ditches, rail and other fences, (the said A. B. providing upon the premises, or within two miles thereof, rough timber, bricks, tiles, and lime for the doing thereof, to be conveyed by the said C. D., his executors, administra- tors, or assigns) ; for permission for the said A. B., his heirs, or assigns, at all seasonable times to view the state of the premises ; that the said C. D., his executors, administra- tors, or assigns, shall not plough or convert into tillage any of the closes of meadow or pasture ground, without the license of the said A. B., his heirs, or assigns, in writing, first obtained ; that the said C. D., his executors, or admi- nistrators, shall not carry off from the farm any hay, straw, or other fodder, and that the said C. D., his executors, administrators, or assigns, shall spread on some part of the said lands, in a husbandlike manner, all the dung, manure, and compost which shall arise from the said farm, and shall in all respects cultivate the same in a husbandlike manner, and according to the usual course of husbandry practised in the neighborhood, and shall leave all the dung, manure, and compost of the last year for the use of the landlord, or succeeding tenants. That the said C. D., his executors, administrators, or assigns, shall not cut or flash any of the quick-hedge under three years' growth, and shall cut and flash those at seasonable times in the year, and, at the time of doing thereof, shall cleanse the ditches adjoining thereto, and guard and preserve the hedges which shall ba so cut and flashed as aforesaid, from destruction or injury by cattle, and shall also, at all times, guard and pre- serve all young hedges and young trees from the like destruction and injury. That the said C. D., his executors, administrators, or assigns, shall, in the summer immediately preceding the determination of the said term to be granted as aforesaid, prepare for seed, in a husbandlike manner. 612 APPENDIX. such part of the land as shall be in a course of fallow, and fit to be sown with a crop the ensuing season, and lay- down with clover seed and rye-grass twenty acres of the arable land which shall be then in tillage, sowing upon each acre thereof ten pounds of the best clover seed, and one bushel of the best rye-grass seed. And in the said lease there shall be contained a proviso for reentry by the said A. B., his heirs, or assigns, in case of the non-payment of rent for the space of twenty days, or non-performance of the covenants, or in case the said C. D., his executors, administrators, or assigns, shall assign, underlet, or other- wise dispose of the said premises, or any part thereof, or do, commit, or suffer any act or deed, whereby or by means whereof the said premises, or any part thereof, shall be assigned, underlet, or disposed of, without the consent, in writing, of the said A. B., his heirs, or assigns, first ob- tained. And there shall be contained covenants on the part of the said A. B., his heirs, and assigns, for quiet enjoyment. That the said A. B., his heirs, or assigns, shall, upon ten days' notice, provide and allow to the said C. D., his executors, administrators, and assigns upon the pre- mises, or within two miles thereof, all such rough timber, bricks, tiles, and lime as shall be necessary for the repairs of the premises, the said materials to be conveyed at the expense of the said C. D., his executors, administrators, or assigns. That the said A. B., his heirs, and assigns, shall permit the said C. D., his executors, administrators, or assigns, to have the use of the great barn, the stable for four horses adjoining, and the stack-yard and farm-yard, until one month after the expiration or determination of the said term, for the convenience of thrashing out the last year's crops of corn and grain, and feeding his or their cattle with the straw and fodder, so that the same may be made into manure, to be left on the said premises as afore- said ; and also some convenient room in the farm-house for his or their servants to lodge and diet in, until the time aforesaid, without any recompense being made for the same respectively. In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written. Sealed and delivered ) A. B. (l. s.) in the presence of ) C. D. (l. s.) APPENDIX. 613 NO. XIV. A Farming Lease for Fifteen Years, under a Power to Lease. This indenture, made the 24th day of February, &c., 1844, between A. B., of the one part, and C. D., of the other part, Parties, witnesseth, that for and in consideration of the rents, cove- nants, and agreements hereinafter reserved and contained, and on the part of the said C. D., his executors, administra- Witness- tors, and assigns, to be paid, observed, and performed, he,iessor^ the said A. B., pursuant to and by force and virtue of a cer- tain power or authority, to him for this purpose given or limitedj by virtue of or under the last will and testament of I. J., Esq., deceased, doth by these presents appoint, de- demises to mise, and lease unto the said C. D., his executors, adminis- trators, and assigns, all that farm-house called Y. Z., situate, &c., with the barns, stables, and other out-buildings, yards, gardens, and orchards thereto belonging, and all the several pieces or parcels of arable land, meadow, pasture, and marsh ground therewith occupied at Y. Z., aforesaid, con- the premi- . . . . ses witli tammg altogether by estimation 650 acres, (be the same general more or less,) now in the tenure and occupation of the said ^°'^ and his assigns, and other the person or persons aforesaid, ' "' free liberty for him and them, and his and their succeeding tenant or tenants of the said premises hereinbefore de- mised, and their or any of their servants and workmen, with horses and all necessary implements of husbandry, in due season in the last year of this demise, to enter into and upon so much of the arable lands hereinbefore demised, as shall be then sown with summer corn, there to sow clover, or other grass seeds, with such summer corn, and to har- row and roll in the same ; and also except and reserved unto the said A. B. and his assigns, and other the person or persons aforesaid, convenient lodging-room for his and their with ac- , , , -,,11 ^ 1 • commoda- servants and workmen, and convenient stable-room lor his tions for his and their horses, and for hay, straw, and provender for such^^'J^'J^f^^^. horses, during the time of such horses and workmen being employed in sowing the said clover, and other grass seeds, and in harrowing and rolling in the same ; and also free liberty of ingress and regress for him and them, and his and their servants and workmen, with horses and carriages, or otherwise, to come, go, pass, and repass into, over, upon and from the said premises, or any of them, or any part or parts thereof, at all reasonable times, for any reasonable cause or thing whatsoever.) To have and to hold the said to have and farm-house, pieces, or parcels of land, and all and singular fifteen other the premises hereinbefore demised or expressed, and^®^''^' intended so to be, (except as hereinbefore is excepted and reserved,) with their appurtenances, unto the said C. D., his executors, administrators, and assigns, for the term of 616 APPENDIX. fifteen years, to be computed from the day of now last past, and thenceforth next ensuing and fully to be reservation complete and ended ; yielding and paying therefor, yearly of rent. , , , , . - r no ^ and every year durmg the said term ot niteen years, the yearly rent of $665 of lawful money of the United States of America, in the shares and proportions on or at the days or times, and in the manner hereinafter mentioned, (that is to say,) the sum of $265, part thereof on the 1st day of January ; the sum of $100, further part thereof, on 1st day of April ; the sum of $200, other part thereof, on the 1st day of July ; and the sum of $100, the residue thereof, on the 1st day of October, in every year of the said term, except the last year thereof ; and the last payment in the last year thereof to be made on the 1st day of August instead of the 1st day of October ; without any deduction or abatement whatsoever for or in respect of the land-tax, or any other present or future taxes, charges, rates, imposi- tions, or .assessments, or any other matter, cause, or thing whatsoever ; the first payment, in respect of the said yearly rent, to be made on the 1st of April next ensuing the day of the date of these presents ; and also yielding and paying yearly, and every year during the said term of fifteen years, the additional yearly rent or sum of $10 for every acre, and so in proportion for any greater or less quantity than an acre of the said premises hereinbefore demised, which shall be ploughed, dug, broken up, or converted into tillage or garden ground, contrary to and in breach of the covenant hereinafter contained ; the said further rent of $10 to be paid on the last day of payment in every year in which the same shall happen to become payable, without Proviso for any deduction in abatement whatsoever. Provided ahvays, case of' '" ^"'^ these presents are upon this express condition, that if non-pay- ^jjg gJ^;(J yearly rent or sum of $665, or the said additional ment of . ■»- i rent; rent hereinbefore reserved, or either of them, or any part thereof respectively, shall be in arrear by the space of twenty days next after the same respectively ought to have been paid as aforesaid, being lawfully demanded by the said A. B., his executors, administrators, or assigns, or if •f 1 ee '^^ ^^''^ ^' ^■' '^'^ executors, administrators, or assigns, shall shall assign at any time or times, during the continuance of this demise, or under- » /. . , , let; transfer, or assign over, or underlet, or attempt or agree to APPENDIX. 617 transfer, or assign over, or underlet to any person or per- sons whomsoever, the said premises hereinbefore demised, or any part or parts thereof, for all or any part of the said term of fifteen years, without the license or consent, in writing, of the said A. B. or his assigns, or other the per- son or persons aforesaid, for that purpose first had and ob- tained ; or if the said C. D., his executors, administrators, or become or assigns shall become a bankrupt or bankrupts, or shall '"'"^^™P'' compound his or their debts, or assign over his or their estates and efiects for payment thereof, or if any execution shall issue against him or his effects, whereupon the said premises or any part thereof shall be taken, or attempted to be taken in execution; or if the said C. D., his executors, or in case administrators, or assigns shall not, from time to time and pe^^!°' at all times during the continuance of this demise, well and™oeof any other cove- truly observe, perform, fulfil, and keep all and singular nant or the covenants, conditions, and agreements, which, on his or"™ "'"' their parts, are or ought to be observed, performed, fulfilled, and kept according to the true intent and meaning of these presents, then in any and every such case, and although no advantage shall have been taken of any previous default, it shall and may be lawful to and for the said C. D. and his assigns, and the other person or persons aforesaid, into and upon the said premises hereinbefore demised, or into any part thereof in the name of the whole, wholly to reenter, and the same to have again, repossess, and enjoy as his, her, or their former estate ; any thing hereinbefore contained to the contrary thereof in anywise notwith- standing. And the said C. D. doth for himself, his heirs, executors. Lessee co- administrators, and assigns, covenant, promise, and agree ™°™*\'° . . . P^^y rent ; with and to the said A. B., his heirs, and assigns, and other the person or persons aforesaid, in manner following, (that is to say,) that he, the said C. D., his executors, administra- tors, or assigns, or some or one of them, shall and will well and truly pay or cause to be paid unto the said A. B. and his assigns, or other the person or persons aforesaid, the said yearly rent or sum of $665, and the said additional rent hereinbefore reserved, and made payable at such days or times, and in such manner as is hereinbefore mentioned and appointed for payment of the same respectively, ac- 52* 618 APPENDIX. cording to the true intent and meaning of these presents. to pay -A-nd also shall and will well and truly pay, bear, and dis- taxes and charge the land-tax and all other taxes, charges, rates, charges; duties, and assessments whatsoever, either already taxed, charged, rated, assessed, or imposed, or at any time or times hereafter, during the continuance of this demise, to be taxed, charged, rated, assessed, or imposed upon the said yearly rent of $66.5, or upon the said additional yearly rent, or upon the said premises hereby demised, or any of them, or any part or parts thereof, or upon the said A. B. or his heirs or assigns, or other the person or persons afore- said, as landlord or landlords of the same premises, by any to deliver lawful authority howsoever ; and also shall and will, at all half the times hereafter during the continuance of this demise, pigeons ° killed on allow and deliver, or cause to be delivered unto the said A. mise^s'-^" B. and his assigns, or other the person or persons aforesaid, at his or their residence, in aforesaid, one half of the pigeons which shall from time to time be killed from the to do work dovecote upon the said premises ; and also shall and with a ^iii^ yearly and every year during the continuance of this demise, at his and their own costs and charges, per- formed by successive days carriage-work, with a wagon and team of three horses and a servant, for the said A. B. and his assigns, or other the person or persons for the time being entitled as aforesaid, he or they giving to the said C. D., his executors, administrators, or assigns, three days' previous notice of the time and place when and where the same work is to be done ; but nevertheless the said wagon shall not be compelled to go to any greater distance than seven miles from the farm-house hereinbefore de- to repair; «i>sed. And also shall and will, at all times during the continuance of this demise, when need or occasion shall be or require, and whether any notice shall be given for the reparation of the same or not, at his and their own proper costs and charges, well and substantially uphold, repair, maintain, sustain, and amend all the glass windows and glazings of the said messuage or tenement, and farm-house hereby demised, and all the locks, keys, hinges, bolts, bars, fixtures, pumps, and the going-gears thereof, gates, gate- irons, stiles, pales, posts, rails, battens, bridges, hedges, ditches, drains, intercourses, and inward and outward fences APPENDIX. 619 of every kind, of or belonging to the said premises here- inbefore demised, or any part or parts thereof, (such allow- ance of rough timber and fencing stuff being from time to time made to him and them, as is hereinafter covenanted to be made) ; and the same articles and things being well and sufficiently upholden, repaired, supported, maintained, sus- tained, and amended as aforesaid, shall and will peaceably and quietly leave, surrender, and yield up the said mes- stirren- suage and premises hereinbefore demised, with the same end of the unto the said A. B. or his assigns, or other the person or*®"™' persons for the time being entitled as aforesaid, at the end of the said term of fifteen years, or sooner determination of the present demise, together with all such fixtures, mate- with all rials, and things as now are, or shall at any time or times ^ ^^' during the continuance of this demise, be set and affixed within, upon, or about the said premises hereinbefore demised, or any part or parts thereof, (reasonable use and except in uses thereof, and accidents by fire only excepted.) And'^*^''° ^^' also that he or they shall and will find and provide good provide winter corn and straw sufficient for thatching and daubing ™atohuig; all or any of the said buildings and premises hereby demised, or any part or parts thereof, without any allow- ance being made to him or them, in respect of the same. And also shall and will, at his and their own costs and oa,™ the charges, fetch and carry all the materials which shall be ?'"''''^"^'? ° ' _ •' _ _ _ for repairs; wanted to repair any of the buildings and premises herein- before demised, and lay the same in convenient places for use, provided the carriage thereof does not exceed the dis- tance of ten miles from the said farm-house. And also provide re- shall and will find and provide the workmen with good i?'®^!;™™*'* '^ . ° for the and wholesome refreshment, according to the custom of the workmen; country, during the time in which any such repairs shall be doing, without any allowance being made to him or them, in respect of the same. And also that he, the said C. C, (.jj^j. jjewiii his executors, administrators, or assigns, or any of them,""' lysis'! . . . 1 ortmder- shall not nor will, at anytime or times during the conti-let; nuance of this demise, transfer, assign over, or underlet to any person or persons whomsoever the said premises here- inbefore demised, or any part or parts thereof, for all or any part of the said term of fifteen years, without the license and consent, in writing, of the said A. B. or his 620 APPENDIX. assigns, or other the person or persons for the time being entitled as aforesaid, for that purpose first had and ob- nor plough tained. And also that he, the said C. D., his executors, meadow administrators, or assigns, shall not nor will, at any time or land; times during the continuance of this demise, plough, dig, break up, or convert into tillage or garden ground any ot the fields, closes, pieces or parcels of pasture or meadow land hereinbefore demised, or any part or parts thereof respectively, (except a piece of land called the Eye, which he or they may break up and cultivate, in the same or mow the manner as the other arable lands.) And also shall not nor ^an oner ^'"' "during the last three years of this demise, mow, or a year; cause or suffer to be mowed, the fields, closes, pieces or parcels of land hereinbefore demised, or any of them, or any part or parts thereof respectively, more than once a year, or, during the continuance of this demise, to be trod- cultivate in den down and damaged by heavy cattle. And also shall Ukemau "^""^ will, at all times during the continuance of this demise, "^■^1 so manage and cultivate the arable lands, parcel of the said premises hereinbefore demised, that no more than two suc- cessive crops of corn, pulse, or grain, (and those two not of the same kind,) shall be grown upon, or had, or taken from off the same, or any part or parts thereof, without giving the same a clear summer fallow, and sowing the same with turnips in the ensuing year ; and for the next crop, after such turnips, laying down the same land in a husbandlike manner with a sufficient quantity of sound clo- ver and other grass seeds, and continuing the same two years, to be accounted and computed from the midsummer- inbam the day next after sowing the same seeds. And also shall and the^pre-"" ^^^"' y^^*"')^ ^""^ every year during the said term, inbarn or mises; stack up in the said premises all the corn or grain which shall arise or grow therefrom, and there thresh the same, and spend and consume on the said premises, by feeding and foddering cattle therewith, or otherwise, all the straw, colder, chaff, and clover arising therefrom ; and also all the hay or turnips that shall grow or arise from or upon the said premises hereinbefore demised, except the winter corn straw that shall be wanted for thatching and daubing work ; and also except half the hay and clover which shall arise in the last year of this demise, and the whole of the straw, APPENDIX. 621 chaff, and colder arising from the corn in the said last year, which half of the hay, and the entirety of which straw, chaff, and colder shall be left upon the premises, for the benefit of the said A. B. or his assigns, or other the person or per- sons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants of the same premises, for which hay it is agreed that so much money shall be paid, by the person or persons receiving the benefit thereof, as the same shall be reasonably worth in the judgment of two competent persons, one of them to be chosen by the said C. D., his executors, administrators, or assigns, and the other of them to be chosen by the person or persons taking the same ; and in case the two persons so named shall dis- agree, as to the amount of such valuation, then the same shall be referred to the valuation of a third competent per- son, to be chosen by the said two so first chosen, and the valuation so to be made by them or him, as the case may be, shall be binding and conclusive upon all the parties ; and in consideration of the |aid straw, chaff, and colder, the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid shall, at his and their own costs and charges carry, or cause to be car- ried, all the corn and grain from which the said straw, chaff, and colder shall arise to any distance which the said C. D., his executors, administrators, or assigns shall require, not exceeding fifteen miles from the farm-house herein- before demised. And also shall and will expend, spread, use all the and lay in a husbandlike manner, where the same shall be upon the most wanted, all and every the dung, manure, muck, and'™*^' compost, that shall be made and arise during the conti- nuance of this demise, from the hay, straw, colder, clover, tares, vetches, and turnips, that shall be so spent and con-; sumed on the said premises as aforesaid, (except the dung, manure, and compost that shall arise and be made there- from in the last year of this demise, and the first day of May then next ensuing,) and shall and will turn up in heaps, and leave in the yards, or some other convenient parts of the said premises hereinbefore demised, the dung, manure, muck, and compost so excepted as aforesaid, (except such part thereof as shall be used in preparing for turnips,) for the support, benefit, and nourishment of the 622 APPENDIX. land hereinbefore demised, without any allowance being keep up the made to him or them, in respect of the same. And also ditches™*^ that he, the said C. D., his executors, administrators, or assigns, shall and will, yearly and every year during the continuance of this demise, in a husbandlike manner, cut and scower, or cause to be cut and scowered, one hundred yards of the fences and ditches upon such part of the arable lands hereinbefore demised, and fifty rods of the fences and ditches upon such part of the marsh lands as shall most require cutting and scowering ; and do or cause to be done all such outhauling, banking, and planting necessary for that purpose, being allowed bushes, thorns, and other fenc- sm-render ing stuff, to be taken upon the prernises. And also shall of ttte™*^ and will, on the 24th day of June immediately preceding tenn; the expiration of this demise, give and deliver up the peace- able possession unto the said A. B. or his assigns, or other the person or persons for the time being entitled as afore- said, (without being entitled to any diminution in rent,) one sixth part of the arable laqd hereinbefore demised, and which one sixth part shall be in olland of two years' laying, having been sown with good sound clover and rye-grass, along with a crop of corn next immediately after a crop of turnips, at the rate of twelve pounds of clover and one peck of rye-grass seeds per acre ; and also shall and will, at the expiration of this demise, leave one other one sixth part of the said arable land in olland of one year's laying, having been sowtnmip sown as aforesaid. And also that he, the said C. D., his j^j'gg^^f executors, administrators, or assigns, shall and will, at pro- the term, pgr times in the last year of this demise, ploush one other for the be- "^ . ^ . . nefit of the one sixth part of the arable lands hereinbefore demised, with three clean earths at the least, and shall in due season, after the same shall be ploughed, sow the same with turnip seeds, and harrow in the same, and hoe, and keep clean, and preserve the same for a crop ; and, at the expiration of this demise, leave the same unfed for the benefit of the said A. B. and his assigns, or other the person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants ; for which turnips it is hereby agreed that he and they, or his or their succeeding tenant or tenants of the same premises shall pay unto the said C. D., his executors, administrators, or assigns, so much money as lessor ; APPENDIX. 623 the same shall be valued at and be reasonably worth, in the judgment of two persons and their umpire, to be chosen as hereinbefore is mentioned. And also that he, the said C. D., and permit his executors, administrators, or assigns, shall and will per- to harrow mit and suffer the said A. B. and his assigns, or other the ^^^j^nJi™ person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants in the same premises, and their or any of their servants and workmen, with horses and oxen, and all necessary implements of hus- bandry in due season, in the last year of this demise, to enter into and upon all such of the arable lands herein- before demised as shall then be sown with summer corn, and to harrow and roll in the same, and shall and will give timely notice to the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, or the succeeding tenant or tenants of the same premises, at the proper time when the same ought to be sown as aforesaid, and shall and will carefully protect and preserve the same from being destroyed or damaged, by cattle or otherwise. And also shall and will find and provide con- proyi^g ^o- venient lodging-room for the servants and workmen of the ™™™°'^''-~ said A. B. or his assigns, or other the person or persons for lessor's the time being entitled as aforesaid, or his or their succeed- ' ing tenant or tenants of the same premises, and convenient stable-room for his or their horses, and for hay and straw provided for such horses, during the time of such work- men, servants, and horses being employed in sowing the said clover and other grass seeds, and in harrowing and rolling in the same. And also that he, the said C. D., his destroy executors, administrators, and assigns, shall and will, froni^ ' time to time and at all times during the continuance of this demise, use his and their best endeavors to kill and destroy, or cause to be killed and destroyed, all moles found in or upon the premises hereinbefore demised, or any part there- of. And also shall and will, at all proper seasons in every amj-^eeds; year during the continuance of this demise, and particu- larly before seeding time, mow and keep down all thistles, docks, and other seeding weeds, upon the said premises hereby demised, and every part thereof respectively, and shall not nor will cut or carry away from the said premises any winns or brakes, between day and day in 624 APPENDIX. nor suffer any year. And also that he, the said C. D., his executors, to"tresrass- administrators, or assigns, shall not nor will permit or suffer any person or persons whomsoever to sport or trespass upon any of the said premises hereinbefore demised, or any part or parts thereof, without leave, in writing, from the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, but shall and will, at his or their request, give proper notice or notices, in writ- ing, to forbid any person or persons sporting or trespassing thereon, and at the like request of the said A. B. or his assigns, or other the person or persons as aforesaid, give or cause such notice or notices to be "given in evidence, and , proved in any court or courts that shall be thought neces- sary to cojivict any such person or persons sporting or tres- permission passing thereon. And that it shall and may be lawful to suitsTn the^"*^ for the said A. B. or his assigns, or other the person or name of the persons aforesaid, to bring any action or actions in the I6SS0S J name or names of the said C. D., his executors, administra- tors, or assigns, against any person or persons who shall or may be found sporting or trespassing on the said premises hereby demised, or any part thereof, and which action or actions neither he nor they shall wilfully release, discon- tinue, or discharge, or become nonsuit therein, and shall not nor will disclose or make known any thing relating thereto, which may be prejudicial to the prosecuting the same, the said A. B. or his assigns, or other the person or persons aforesaid indemnifying the said C. D., his execu- tors, administrators, and assigns, from all costs and da- mages, to be incurred thereby. And also that he, the said C. D., his executors, administrators, or assigns, shall not nor will, at any time or times hereafter during the conti- not to com- nuance of this demise, commit any waste upon the said mi was e, pygjj^;ggg hereby demised, or any part thereof, by felling, cutting down, grubbing up, lopping, topping, cutting, or stubbing, or cause, or willingly or negligently permit or suffer to be felled, cut down, hewn, grubbed up, lopped, topped, cut, or stubbed any timber, or timber-like trees, or fruit trees, or any seedlings, stover, or young spires there- of, or any bodies of pollards or willows, now growing or being or which shall at any time or times hereafter, during the continuance of this demise, grow or be on the said pre- APPENDIX. 625 raises hereby demised, or any part or parts thereof, nor shall nor will fell, stub, lop, top, or injure any qulckthorns or bushes, (except the lops and tops of the pollards, stubs, and surplus thorns required for firing, and the quickthorns and bushes required for fencing,) but shall and will, on the contrary, use his and their utmost endeavors to preserve the same from being spoiled or injured. And also shall not nor will commit any waste upon the said premises hereby demised, or any part thereof, by ploughing or digging any of the marshes or pasture ground hereinbefore demised, (except the said piece of land called the Eye, which it shall and may be lawful to and for the said C. D., his exe- cutors, administrators, or assigns, to break up and cultivate in the same manner as the other arable lands.) Provided always that, notwithstanding the covenants and reservations hereinbefore contained, the said A. B. or his assigns, or other the person or persons entitled as aforesaid, shall or may pursue any remedy in equity, to which he or they would otherwise be entitled, to restrain the conversion or digging of the said marshes or pasture ground, or the cut- ting any trees, quickthorns, or bushes, contrary to the cove- nants hereinbefore contained in that behalf. And the said A. B. doth, for himself, his heirs, exe- Lessor co- cutors, and administrators, covenant, promise, and agree with 7™^°!* '" and to the said C. D., his executors, administrators, and as- Gildings signs, by these presents, in manner following, (that is toiJanteWe^" say,) that he, the said A. B., and his assigns, and other the'^^P^"^' person or persons for the time being entitled as aforesaid, shall and will keep the farm-house, barns, stables, and all other buildings hereinbefore demised, in good and tenant- able order and repair, (other than and except such repairs as are hereinbefore covenanted to be made by the said C. D., his executors, administrators, or assigns, he and they performing such covenants on his and their parts.) And to allow shall and will, on request, assign and allow unto the said *^^f' . C. D., his executors, administrators, and assigns, during the nsmt's re- said term, proper and necessary timber and rough wood for^^^^' repairing the gates, lifts, posts, pales, stiles, rails, bars, and other things belonging to the said premises hereby demised, which are to be repaired by the said C. D., his executors, administrators, and assigns ; and also thorns, stakes, quicks, 53 626 APPENDIX. and bushes, for making, mending, and repairing the hedges, ditches, drains, and fences thereof, provided such bushes, stakes, and quicks can be found thereon, and not otherwise, permit te- And also shall and will permit and suffer the said C. D., his ^^^g °^^^f executors, administrators, and assigns, to have and use the drift-way for his sheep and cattle, on the east side of the lands called Cop Hills, as the same is now set out, and shall and will permit and suffer the said C. D., his executors, administrators, and assigns, to use, occupy, and, enjoy the barns and stalk-yards belonging to the said premises here- inbefore demised, to lay up, and thresh, and dress his or their corn and grain, and shall and will allow convenient lodging room for his and their servants and workmen em- ployed therein, until the first day of May next after the end and for of this demise. And further, that he, the said C. D., his joyment executors, administrators, and assigns, paying the same yearly rent of $665, and other the rents hereinbefore re- served, as the same shall become due and payable, in man- ner and form aforesaid, and well and truly observing, per- forming, fulfilling, and keeping all and singular the cove- nants, conditions, and agreements hereinbefore contained, on his and their parts to be observed, performed, fulfilled, and kept according to the true intent and meaning of these presents, shall or lawfully may have, hold, use, occupy, possess, and enjoy all and singular the said messuage, tene- ment, or farm-house, and other the premises hereinbefore demised or expressed, and intended so to be, with their appurtenances, during the said term of fifteen years, with- out the lawful let, suit, trouble, or hindrance of or by the said A. B. or his assigns, or other the person or persons for the time being entitled as aforesaid, or any person or per- sons whomsoever, lawfully claiming or to claim by, from, under, or in trust for him, them, or any of them. In witness, &c. NO. XV. A New York Manor Lease.i This indenture, made the twenty-eighth day of September, in the year of our Lord one thousand eight hundred and '' Eor a history of these leases, see § 12 and note. APPENDIX. 627 twenty -six, between Edward P. Livingston, and Elizabeth Parties, his wife, of Clermont, Columbia County, and State of New York, of the first part, and Bruce C. Smith, of Lexington, Greene County, and State aforesaid, of the second part, witnesseth : That the party aforesaid of the first part, for and. in consideration of the rents and covenants hereinafter mentioned, which, on the part and behalf of the party afore- said of the second part, are to be paid, done, observed, performed, fulfilled, and kept, hath demised, bargained, enfeoffed, set, and to farm let, and by these presents doth demise, set, and to farm let, unto the party aforesaid of the second part, his heirs, and assigns, all that certain parcel of land lying in the town of Lexington, County of Greene, in great lot dumber twenty-one in the Hardenburge Patent, Premises. ; being in the subdivision number twelve of said lot, and for- merly part of Benjamin Chamberlain's farm, beginning on the northerly side of Schoharry Kill and the iron-wood tree, cornered and marked VxC, and stones round it, runs from thence along the division line between this farm and Benja- min Chamberlain, north, thirty-two degrees and thirty mi- nutes east, thirteen chains and forty-five links, to a stake and stones at the edge of the lowland, and north twenty- eight degrees east, sixtyrfive chains and fifty links, along a line of marked trees formerly run by George Stimson to an old marked beech tree B, standing on the old line of marked trees, the bounds of a lot in possession of Richard Peck, thence along the same, north, forty-two degrees and thirty minutes east, one chain and eleven links to a slake and stones, twelve links north-east of the old beech corner tree, thence along the old marked line, south, fifty-seven degrees and thirty minutes, east, twelve chains to an old beech corner tree, thence along an old line of marked trees, the bounds of Samuel Adams's lot and Abraham Van Volk- enbu'rgh's lot, south thirty-two degrees and thirty minutes west, eighty-one chains to the said Schoharry Kill, to an old cornered maple tree, standing one chain and sixty links south, forty-three degrees west from the south-west corner of Caleb Hyde's house, thence down the stream of the said Kill to the place of beginning, containing eighty acres, be the same more or less, being the farm heretofore leased to Jeremiah Martin, on the 29th of September, 1818. Toge- 626 APPENDIX. Reserva- vations. Proviso. Haben- dum. Yearly rent. ther with all and singular the trees, woods, and under- woods, to be made use of on the premises, and nowhere else. Saving and always reserving to the party of the first part, their heirs and assigns forever, all streams, creeks, and runs of water, and all mines, minerals, ores, and metals of every nature and kind, upon or within the farm hereby demised, standing, being, or to be found, with full and free ingress, egress, regress, and power and liberty at all times to search, dig, and carry away the same, or to manufacture the same thereupon, and, for that purpose, to make and erect mills, dams, and other buildings, and also to take and use all such timber, firewood, stone, and other materials, as may be found in any part of the said demised farm, proper and necessary for his and their use. But it is hereby pro- vided, that for so much of the said demised farm as shall by these means become incumbered, or rendered useless to the party of the second part, there shall be deducted out of the yearly rents by these presents reserved a reasonable abatement, in proportion to the whole quantity of the said hereby demised farm, during the time that any part may be so incumbered or rendered useless. To have and to hold the said farm, land, and premises hereinbefore demised, (saving, reserving, and excepting as afpresaid,) unto the party aforesaid of the second part, his executors, adminis- trators, and assigns forever, from the day before the date of these presents ; to the proper use, benefit, and behoof of the party aforesaid of the second part, his executors, admi- nistrators, and assigns, yielding and paying therefor, during the continuance of this present lease, yearly and every year, unto the party aforesaid of the first part, their heirs, or assigns, the yearly rent of seventeen and a half bushels of good, sweet, merchantable winter wheat, for the above- demised premises, to be delivered and paid by the party aforesaid of the second part, his heirs, or assigns, on the first day of every month of May, yearly, at such storehouse or place within fifty miles from the above-demised premises, and to such person as the party aforesaid of the first part, their heirs, executors, administrators, or assigns, shall from time to time, at pleasure, appoint or direct to receive the same ; the first payment to be made on the first day of May, in the year of our Lord one thousand eight hundred APPENDIX. 629 and twenty-seven, which rent is to be paid without any deduction or abatement of or for any manner of taxes, charges, assessments, or impositions whatsoever, that have or shall be taxed, charged, assessed, or imposed upon the hereby-demised premises, or any part thereof, or upon the party aforesaid of the second part, his heirs, or assigns, for or on respect thereof, by any power or authority whatso- ever ; provided always, that these presents are upon this Right of condition, that if the said yearly rent, or any part thereof, "^^^ shall be behind and unpaid, or unperformed in any part or in all, by the space of twenty days next after any of the days appointed or to be appointed as aforesaid, for render- ing, paying, or performing the same as aforesaid ; or if the party aforesaid of the second part, his heirs, or assigns, shall not take possession and improve the farm aforesaid within six months after date hereof, or leave the possession for the space of six months, or shall not observe, keep, and perform the several articles, covenants, and agreements in these presents particularly hereafter expressed, on his or their part to be observed, kept, and performed ; that then, and in any or either of these cases, these presents, and the estate by these presents demised, or intended to be demised, are to be void, determine, and cease ; and thereupon it shall and may be lawful to and for the party of the first part, their heirs, and assigns, into the said farm, land, and premises, or in any part, in the name of the whole, to reenter, and have again, retain, repossess, and enjoy, as in their first former estate. And also, in case of the party Covenant aforesaid of the second part, his heirs and assigns, or'any ^|™|.j; ™" of them, be minded and desirous hereafter to dispose of the said farm, or any part thereof, or to underlet the same, with the appurtenances, the orchards, fruit-trees, nurseries, dung- hill, which shall be deemed parcel of the said farm, that then the party aforesaid of the second part, his heirs, or assigns, shall not nor will not sell or dispose of, or underlet the same, before leave first had and obtained, under the hand and seal of the party aforesaid of the first part, their executors, administrators, or assigns. Also that the said Covenant party of the second part shall and will from time to time, ° ^^P''^''- and at all times during the term hereby demised, keep, maintain, and preserve the house, barn, barracks, buildings, 53* 630 APPENDIX. . fences, and inclosures, made or to be made and erected on the hereby demised farm, in good and sufficient repair- Covenant Also that the party aforesaid of the second part, his heirs, tion. or assigns, shall, in the first year, strew apple-seed or pomace upon a patch of land on said farm for a nursery, well prepared for that purpose, of at least fifty feet square, to the intent that, within six years, there be planted a regular orchard of one hundred apple-trees at least, at thirty-six feet asunder, and as many of them as may happen to die, others in their stead to be replaced, so that the number of one hundred like trees at least be complete and planted out, and inclosed with a good fence for their safety. Also that the party aforesaid of the second part, his heirs, or assigns, shall not, by themselves or procurement, peel any bark, for tanner's use, off or from any tree standing or laying down on the said farm ; or, by his or their privity, suffer any wood to be disposed of or burnt into coal for furnace, forge, or bloomery use, or into ashes for any potash work ; or shall the party aforesaid of the second part, his heirs, or assigns, take in or join any other person or persons in con- junction, to farm on shares, or cropping. And also that the party aforesaid of the second part, his executors, adminis- trators, and assigns, shall from time to time hereafter be subject to all reasonable orders, as regulating fences, laying out paths and roads, and to amend and repair the same, when necessarily devised by the party aforesaid of the first Restraints part. And this lease is upon the express condition that the ^§™^^™" aforesaid land, before it shall be sold, assigned, or underlet, by the said party of the second part, his heirs, or assigns, shall be fixed at the price he or they mean to take, and the first offer thereof, at the said price, shall be made to the said party of the first part, their heirs, or assigns ; and also, when sold, underlet, or mortgaged, or in any way disposed of otherwise than by will or descent, that the person so tak- ing the same shall take a new lease from the said party of the first part, their heirs, or assigns, subject to the same rents, covenants, and conditions contained in this lease, together with a new covenant and conditions in all things similar to this ; it being declared to be the intention hereof, that this lease is to be renewed upon every sale, assignment, or underletting, as long as the term hereby granted shall APPENDIX. 631 continue, and shall pay to the said party of the first part, their heirs, or assigns, one tenth part of the sale-money, which shall be considered as a condition binding the land, as also all other covenants and conditions herein contained, and for a breach of any of which the said party of the first part, their heirs, or assigns, may reenter and recover the said land, as if no lease had been granted. In witness whereof, the parties to these presents have interchangeably set their hands and seals, the day and year first above written. Edward P. Litincston. Elizabeth S. Livingston. Bruce C. Smith. Sealed and delivered in the presence of Horace Steevens. NO. XVI. A Building Lease. This indenture, made, &c., between A. B., &c., of the parties, one part, and C. D., of the other part, witnesseth : That the^°'' said A. B., for and in consideration of the rents, covenants, and agreements hereafter reserved and contained, by and on the part and behalf of the said C. D., his executors, administrators, and assigns, to be paid, done, and per- formed, hath demised, leased, set, and to farm let, and by these presents doth demise, lease, set, and to farm let unto demise the said C. D., his executors, administrators, and assigns, all that piece or parcel of ground situate, lying, and being on, &c., in the said , containing in breadth on the north side thereof , and in depth on the east side thereof , be the same more or less, and on the west side thereof , east , and from thence south , and from thence east, be the same more or less, together with the messuages or tenements, and other the erections and buildings thereon, which the said C. D. shall have full liberty to pull down, and to take to and for his own use ; which said piece or parcel of ground abuts north on aforesaid, south on gardens to some houses on the north 632 APPENDIX. side of , belonging to the said A. B., now on lease to , east on buildings, &c., and west, &c., and is nnore fully delineated and described in the plan or ground plot thereof, in the margin of these presents, together with all erections and buildings to be erected and built thereon, and all ways, paths, passages, drains, water, watercourses, easements, profits, commodities, and appurtenances what- soever, belonging and which shall belong to the said hereby for the demised premises, or any part or parcel thereof, to have '®'™' and to hold the said piece or parcel of ground, messuages or tenements, erections, buildings, and premises hereby demised, or intended so to be, with their and every of their appurtenances, unto the said C. D., his executors, adminis- trators, and assigns, from the day of last past, before the date thereof, for and during and unto the full end and term of years, from thence next ensuing, and reservation fully to be complete and ended, yielding and paying there- of rent; fuj.^ fop ^[)g fjrst year of the said term hereby demised, the rent of a pepper-corn on the last day thereof, if demanded, and yielding and paying therefor yearly and every year, for and during the remaining years of the said term hereby demised, unto the said A. B., his heirs, and assigns, the yearly rent or sum of , of lawful money of the United States of America, by half-yearly payments, on the and in each year, by even and equal portions, the first payment thereof to begin and be made on , in the year of our Lord , the said several rents to be paid and payable from time to time, on the several days afore- said during the said term, free and clear of all rates, taxes, ' charges, assessments, and payments whatsoever, taxed, charged, assessed, or imposed upon the said hereby leased premises, or any part thereof, by any lawful authority how- soever, during the term hereby granted. Lessee co- And the said C. D., for himself, his heirs, executors, payment'-' administrators, and assigns, doth covenant, promise, and agree to and with the said A. B., his heirs, and assigns, by these presents, in manner following, (that is to say,) that the said C. D., his heirs, executors, administrators, and assigns, shall and will yearly, and every year during the last years of the said term hereby granted, well and truly pay, or cause to be paid unto the said A. B., his heirs, and APPENDIX. 633 assigns, the said yearly rent or sum of , of lawful money of the United States, on the several days and times, and in the manner hereinbefore limited and appointed for payment thereof, without making any deduction or abatement thereout, for or in respect of any rates, taxes, assessments, duties, charges, or impositions whatsoever, taxed, charged, assessed, or imposed upon the said hereby- demised premises, or any part thereof, during the said term hereby granted, all which rates, taxes, assessments, duties, to pay charges or impositions he, the said C. D., his executors, '''^®'' ^°' ' administrators, or assigns shall and will bear, pay, and dis- charge, and therefore and therefrom acquit, save harmless, and keep indemnified the said A. B., his heirs, and assigns. And that he, the said C. D., his executors, administrators, * or assigns, shall and will, before the expiration of the first year of the term hereby granted, at his and their own pro- per costs and charges, erect, build, complete, and in a workmanlike manner finish, one or more good and sub- stantial brick messuages or tenements, upon some part ofto erect the ground hereby demised, and shall and will lay out and ' expend therein the sum of or upwards, and also that he, the said C. D., his executors, administrators, and assigns, shall and will from time to time and at all times, from and after the said messuage or tenement, erections, and buildings on the said piece of ground hereby demised, shall be respectively completed and finished, during the remainder of the said term hereby granted, when, where, and as often as need or occasion shall be and require, at his and their own proper costs and charges, well and suffi- ciently repair, uphold, support, maintain, pave, purge, to repair scour, cleanse, empty, amend, and keep the said messuage taintte'"" or tenement, messuages or tenements, erections, and build- ^^™^; ings, and all the walls, rails, lights, pavements, grates, privies, sinks, drains, and watercourses thereunto belong- ing, and which shall belong unto the same, in, by, and with all and all manner of needful and necessary reparations, cleansings, and amendments whatsoever. And that he, the not to snf- said C. D., his executors, administrators, and assigns shall five°teSes not nor will, during the said term hereby granted, permit *? ^^ <=^'^- or suffer any person or persons to use, exercise, or carry upon the on, in and upon the said hereby-demised premises, or any^'^^'™^^^' 634 APPENDIX. part thereof, any trade or business which may be nauseous or offensive, or grow to the annoyance, prejudice, or dis- turbance of any of the other tenants of the said A. B., near adjoining thereto, and the said messuage or tenement, mes- suages or tenements, erections, buildings, and premises, with the walls, pavements, sewers, and drains belonging thereto, being in every respect so well and sufficiently repaired, upheld, supported, sustained, maintained, paved, purged, scoured, cleansed, emptied, amended, and kept, shall and will, at the expiration or other sooner determina- surrender tion of the said term hereby granted, peaceably and quietly oftheterai '®^^®' surrender, and yield up unto the said A. B., his all build- heirs, and assigns, together with all the doors, locks, keys, lugs, fix- . . 1 1 i- tures, &o.; bolts, bars, wamscots, chimney-pieces, slabs, loot-paces, windows, window-shutters, partitions, dressers, shelves, pumps, water-pipes, rails, and all other things which shall be any ways fixed and fastened to, and shall be standing, being, and set up in and upon the said premises hereby demised, or any part thereof, within the last years of the to keep the said term hereby granted. And that the said C. D., his premises executors, administrators, and assigns, shall and will, at his insured, .' ' = ' . ' . and their own proper costs and charges, from time to time sufficiently insure all and every the messuages or tene- ments, erections, and buildings, which shall be erected and built upon the said piece or parcel of ground hereby de- mised, or any part thereof, from casualties by fire, during the then remainder of the said term hereby granted, in some or one of the public offices kept for that purpose in New York or Boston ; and in case the said messuage or tenements, erections, and buildings, or any of them, or any part of any of them, shall, at any time or times during and re- t^ie said term, be burnt down, destroyed, or damaged by build m fire, shall and will, from time to time, immediately after- case of lire ; ' ' , . wards rebuild, or well and sufficiently repair the same. And further, that it shall and may be lawful to and for the said A. B., his heirs, and assigns, or any of them, with workmen or others, in his, their, or any of their company, permit the OT without, to enter or come into and upon the said de- lessor to niised premises, and every part thereof, at seasonable and the pre- convenient times, in the daytime, as well at any time or ' times during the last seven years of the said term hereby APPENDIX. 635 granted, to make an inventory or schedule of the several fixtures and things then standing and being in and upon the said hereby-demised premises, vi'hich are to be left, at the end of the said term, to and for the use of the said A. B., his heirs, and assigns, pursuant to the covenant hereinbefore in that behalf contained, as also twice, or oftener, in every year during the said term hereby granted, to view, search, and see the defects and want of reparation of the said pre- mises, and all defects and want of reparations, which, upon every or any such view or search, shall be from time to time found, to give or leave notice or warning thereof, in writing, at or upon the said demised premises, unto and for the said C. D., his executors, administrators, or assigns, to repair and amend the same. And that the said C. D., his and that' executors, administrators, or assigns, shall and will, within repair; three months next after every such notice or warning shall be given or left, at his and their own proper costs and charges, well and sufficiently repair, amend, and make good all and every the defects and want of reparations, whereof such notice or warning shall be so given or left as aforesaid. Provided always, nevertheless, and these pre- proviso for sents are upon this condition, that if the said yearly rent, ^^^^^^5^^°^^ or sum of hereby reserved, or any part thereof, shall ^"7 "ore- ,,,•1 , ■,■;, .., r nant on the be behmd and unpaid, by the space of days next after part of les- either of the said days of payment, whereon the same ^^^' ought to be paid as aforesaid, (being lawfully demanded,) or if the said C. D., his executors, administrators, or assigns, shall not well and truly observe, perform, fulfil, and keep all and every the covenants, articles, clauses, conditions, and agreements in these presents expressed and contained, on his and their part and behalf to be performed and kept, according to the true intent and meaning thereof, then and from thenceforth, in either of the said cases, it shall and may be lawful to and for the said A. B., his heirs, and assigns, into and upon the said demised premises, or any part thereof in the name of the whole, wholly to reenter, and the same to have again, retain, repossess, and enjoy, as in his and their first and former estate, and the said C. D., his executors, administrators, or assigns, and all other tenants or occupiers of the said premises, thereout and from thence utterly to expel, put out, and amove ; and 636 APPENDIX. that from and after such reentry made, this present lease, and every clause, article, and thing herein contained on the lessor's part and behalf, from thenceforth to be done and performed, shall cease, determine, and be utterly void, to J, , all intents and purposes whatsoever, any thing hereinbe- thereupou fore contained to the contrary thereof in anywise notwith- to become void. standing. And the said A. B., for himself, his heirs, and assigns, Lessor co- doth hereby covenant, promise, and agree, to and with the quiet en- said C. D., his heirs, executors, administrators, and assigns, joyment. paying the said yearly rent hereby reserved, in manner and form aforesaid, and observing, performing, and keeping all and singular the covenants and agreements hereinbefore ^■mentioned, on his and their parts and behalf to be per- formed and kept, shall and may lawfully, peaceably, and quietly have, hold, occupy, possess, and enjoy the said piece or parcel of ground and premises hereby demised, with their and every of their appurtenances, for and during the said term of years hereby granted, without any lawful let, trouble, denial, or interruption, of or by the said A. B., his heirs, or assigns, or any other person or persons lawfully claiming, or to claim by, from, or under him, them, or any of them. In witness, &c. NO. XVII. An Indorsement for continuing a Lease for a longer Term, after the Expiration of the Present. This indenture, &c., between the within-named A. B., of the one part, and the within-named C. D., of the other part, witnesseth : That for and in consideration of the rent hereby reserved, and of the covenants, conditions, and agreements respectively hereinafter contained, which, on the part of the said C. D., his executors, administrators, and assigns are to be paid, done, and performed, the said A. B. hath demised, leased, set, and to farm let unto the said C. D., his executors, administrators, and assigns, all that piece or parcel of ground, with the messuage or tene- ment thereon erected and built, and all and singular other APPENDIX. ' 637 the premises respectively comprised in the within written Continu- lease, and thereby demised to the said C. D., (except asjeasebym- therein is excepted,) to have and to hold the said piece or dorsement. parcel of ground, and messuage or tenement, and all and singular other the premises hereby leased, let and to farm let, or mentioned or intended so to be, (except as aforesaid,) unto the said C. D., his executors, administrators, and assigns, from the day of , which will be in the year of our Lord , and when the said within written lease will expire, for and during and unto the full end and term of — — years longer, from thence next ensuing, and fully to be complete and ended, subject to and under the like rent, and payable in lilce manner as is within men- tioned, for and in respect of the rent reserved in and by the said within written lease, and subject to the like power of entry, as well on the non-payment of rent, as on the happening of any of the other incidents mentioned in the within written • proviso, or condition of reentry, and it is hereby declared and agreed, by and between the said par- ties to these presents, that they and their respective heirs, executors, administrators, and assigns, shall and will, by^gi-eetobe these presents, during the continuance of the additional ^™°'' ^y term of years hereby granted, stand and be bound, nants. for and in respect of the said hereby demised premises, with the appurtenances, in such and the like covenants, conditions, and agreements respectively, as they, the said parties, and their respective heirs, executors, administrators, and assigns do now stand bound in and by the said within lease, for and during the now residue unexpired of the within- mentioned term hereby granted, it being the intent and meaning thereof that this present indorsed lease, and the additional term hereby granted, shall be upon such and the like footing, and all the covenants, clauses, conditions, and agreements respectively therein contained, be equally available, take place, and have the like force and effect, to all intents and purposes, as if every article, clause, matter, and thing contained in the said within lease, were inserted and contained in this present indenture. • In witness, &c. . 54 638 APPENDIX. NO. XVIII. Underlease by a Mortgagee and Mortgagor of a House and Premises, with a Provision for Payment of the Rent to the Mortgagor. Parties. This indenture, made the day of , 18 — , be- tween A. B., of , (mortgagee of the messuage or tene- ment and premises hereinafter described and demised, qv intended so to be,) of the first part, C. D., of , (mort- gagor of the same messuage or tenement and premises,) of the second part, and [lessee,] of , of the third part, Testatum, witnesseth : That in consideration of the rent, covenants, and agreements hereinafter reserved and contained, and on the part of the said [lessee,'] his executors, administrators, and assigns to be paid, observed, and performed, he, the said [mortgagee,] with the consent and approbation of the said [mortgagor,"] and according to his estate and interest Mortgagee ii* the premises, doth by these presents demise and lease, demises, ^-^^ ^j-^g g^j^ [mortgagor] doth by these presents demise, ga,gor de- lease, ratify, and confirm unto the said [lessee,] his execu- oonfirms. tors, administrators, and assigns, all that messuage or tene- Pai-oelsand J ^ together with all outhouses, buildings, &c., to general 5 ' & 1^53 words. have and to hold, &c., yielding and paying therefor yearly. Habendum. , , , . , , , ? ,.,/., Bedden- durmg the said term, the yearly rent of , of lawful rtum. money of , unto the said [mortgagee,] his e*ecutors, administrators, and assigns,-' subject to such equity of redemption as the said demised premises are now subject or liable to ; and subject also to the proviso or agreement hereinafter contained, in respect to the intermediate pay- ment of the said rent, until such notice as is hereinafter mentioned ; such yearly rent of to be paid by quar- terly payments, on the 25th day of March, the 24th day of June, the 29th day of September, and the 25th day of December, clear of the sewers-rate, and all and all manner of taxes, assessments, rates, and impositions whatsoever, now or hereafter to be charged, assessed, or imposed upon the said premises hereby demised, or on the said yearly 1 The mortgage was upon a term for years, the mortgagor being but a termor. APPENDIX. 639 rent hereby reserved, or on the said [mortgagee and mort- gagor,] or either of them, their or either of their heirs, executors, administrators, or assigns, in respect thereof ; Provided always, and it is hereby agreed and declared, Proviso for that in the mean time, and until the said [mortgagee,] his renUo° executors, administrators, or assigns shall require to have ™°^sa.goi-" the receipt of the rents and profits of the said premises by mort- hereby demised, or intended so to be, and shall give unto the said [Zessee,] his executors, administrators, or assigns, or leave at the same premises notice, in writing, requiring the said [lessee,] his executors, administrators, or assigns to pay the said rent hereby reserved to him, the said [mort- gagee,] his executors, administrators, or assigns, the same rent shall or may be paid to the said [mortgagor,] his exe- cutors, administrators, or assigns ; and if, at any time pre- Power of viously to such notice having been given or left as. afore- mortgagor. said, the same rent, or any part thereof, be unpaid for the space of fourteen days after the respective days or times vi^hereon the same ought to be paid as aforesaid, then and • in such case, and so often as the same shall happen, (although no lawful demand shall have been made thereof,) it shall be lawful for the said [mortgagor,] his executors, administra,tors, or assigns, to enter into and distrain upon the said premises hereby demised for the said yearly rent, or so much thereof as shall then be in arrear, and the dis- tress and distresses then and there made to take lead, carry away, and impound, and in pound to detain and keep, and in due time afterwards to sell or dispose of, or otherwise to act therein according to the law, to the intent that, by the ways and means aforesaid, he, the said [mortgagor,] his executors, administrators, and assigns shall and may be fully paid and satisfied the arrears of the said rent, and also all costs, charges, and expenses which shall be sus- tained or incurred, in consequence of any such distress or distresses. And the said [lessee] doth hereby, for himself, covenants his heirs, executors, administrators, and assigns, covenant ■'^^*^®^' with the said [mortgagee,] his executors, administrators, and assigns, and also separately with the said [mortgagor,] his executors, administrators, and assigns, in manner fol- lowing : that is to say, that he, the said [lessee,] his execu-to pay rent tors, administrators, and assigns shall and will yearly, dur- ° ™° ' 640 APPENDIX. gagor till ing the continuance of the said term hereby granted, pay- afterwards unto the said [mortgagor,] his executors, administrators, or to mort- assigns, until such notice shall have been given or left as aforesaid, and afterwards to the said [mortgagee,'] his exe- cutors, administrators, and assigns, the said yearly rent of , on the respective days, and in manner hereinbefore appointed for payment thereof, without any deduction what- to pay rates soever. -And also shall and will pay the sewers-rate, and ' all manner of other taxes, assessments, rates, and imposi- tions whatsoever, which now are, or hereafter, during the ' said term, shall be assessed, rated, or imposed on the said messuage or tenement and premises, or any part thereof, or on the said yearly rent hereby reserved, or any part thereof, or on the said [mortgagee] and [mortgagor,] or either of them, their, or either of their executors, adminis- iiud pre- trators, or assigns, on accounUthereof. And will also pay, instance o"^ demand, unto the said [mortgagee^ and [mortgagor] effected by respectively, and their respective executors, administrators, mortgagee . . or mort- and assigns, all premiums, costa, charges, and expenses, ■ ° ' and all and every sum and sums of money which the said [mortgagee] and [mortgagor] respectively, or their re- spective executors, administrators, or assigns shall from time to time, during the said term, expend for insuring the said messuage or tenement and premises, from loss or Limit of damage by fire, to the extent of ; and that the amount cOTerabir"°^ the said premiums, costs, charges, and expenses shall by distress, also be recoverable by distress on the said premises, as and in the nature of rent reserved upon a lease for years. If insur- And also, that in case any loss or damage by fire shall, money in- during the said term hereby granted, happen to the said t^epail:"° ™^®^"^Se or tenement and premises, or any part thereof, damages, and the money received by the said [mortgagee] and pay differ- [mortgagor,] or either of them, their, or either of their executors, administrators, or assigns, under or by virtue of the policy or policies of insurance thereon, shall not be sufficient, and so far as the same will not extend to rebuild, repair, or reinstate the said messuage or tenement, erec- tions, and buildings, then the said [lessee,] his executors, administrators, or assigns shall and will also pay unto such of them, the said [mortgagee] and [mortgagor,] or his exe- cutors, administrators, or assigns as shall rebuild, repair. APPENDIX. 641 and reinstate the said messuage or tenement, erections, and buildings, the difference in amount between the sum reco- vered under or by virtue of the said policy or policies of insurance, and the sum expended in so rebuilding, repairing, and reinstating the said messuage or tenement, erections, buildings, and premises, or any part thereof. And also. Covenant &c., [add here a covenant by lessee to repair and cleanse, ^'"''^^'^^"' ^•c.] And the same messuage or tenement and premises, and to yield with the appurtenances, so being in all parts and things "|'jg'j^°'^ from time to time well and sufficiently repaired, upheld, sustained, &c., [as in the covenant to repair,] shall and will peaceably and quietly leave, surrender, and yield up, at the end of the said term, unto the said [mortgagee,] his executors, administrators, or assigns, in case his aforesaid mortgage shall be then subsisting, but otherwise to the said [mortgagor,] his executors, administrators, or assigns ; to- gether with all such fixtures thereon or thereto belonging as are usually deemed landlord's fixtures. And further, that it shall be lawful for the said [mortgagee] and [mortgagor] respectively, and their respective executors, administrators, and assigns, and also for the superior landlord or landlords of the said messuage or tenements and premises, and his or their surveyor or surveyors, agents, or servants, twice in every year, &c., [here insert power to lessors to enter and Power of see state of repairs of the premises, and a covenant by isssee]^^^^^°_ to repair, according to notice.] And also, &c., [cowewawi E^'=^s, &c. by lessee not to carry on any offensive business, nor assign i-^ on offen- without license.] Provided always, &c., [add proviso for j^a^^es nor the reentry of the mortgagee, his executors, administrators, ^^?'^ and assigns ; and also of the mortgagor, his executors, license. T • . . . 7 . r Proviso for administrators, and assigns, on non-payment oj rent, or lessor's re- non-performance of covenants ; and a covenant by the ^'"^ ™ I ./ ./ ' ^ non-pay- mortgagor for the lessee''s quiet enjoyment, on paying the ™®'i' of rent reserved, and performing and observing the cove- Covenant nants by him to be performed and observed, and add,] and gagOT°for also saved harmless and indemnified from the rent and lessee's - . giuet en- covenants reserved and contained in a certain indenture of joyment, lease, bearing date on or about the day of , in demnity the year ,and made, or expressed to be made, between ^g^^^j^g^^j.^ , of the one part, and the said [mortgagor] of the" other part, whereby the said did, for the considera- 54* 642 APPENDIX. lions therein mentioned, demise and lease the said mes- suage or tenement and premises hereby demised, unto the said [mortgago?',] his executors, administrators, and assigns, from the day of the date thereof, for the full term of forty years thence next ensuing ; and free from all claims and Covenant demands in respect thereof. And also that he, the said gagor'to" [mortgagor,] his executors, administrators, or assigns shall expend in- ^^^ ^m^ ;„ ^ase of any loss or damage by fire happening money on to the said messuage or tenement and premises, imme- diately on receipt or recovery of the money due upon or by virtue of any policy or policies of insurance of the said premises, fully and faithfully lay out and expend the same, so far as the same will extend, in rebuilding, repairing, and reinstating the said messuage or tenement and pre- Covenant mises hereby demised. And the said [mortgagee] doth "■ao-ee for hereby, &c., [insert covenant by the mortgagee for the les- lessee's sge's quiet enjoyment, on payment of rent, ^-c, as against joyment. him,, the mortgagee, and persons claiming under him..] And byiessee to the said [lessee] doth hereby, for himself, his heirs, execu- renewal '°''^' administrators, and assigns, covenant vifith the said fines; [mortgagor,] his executors, administrators, and assigns, that in case the said shall, at any time during the conti- nuance of this present demise, be willing to renew the said lease, bearing date on or about the said day of , for a further term of years, he, the said [lessee,] his execu- tors, administrators, or assigns will, at the request, in writ- ing, of the said [mortgagor,] his executors, administrators, or assigns, pay to the said , or their proper officer duly authorized to receive the same, the fine that shall be im- posed upon such renewal of the said last-mentioned lease, and also the expenses of the same renewal, so that such not exceed- fine and expenses do not exceed together the sum of , '"^ ' of lawful money of , and if the same fine and ex- penses together shall exceed that sum, then will, at such request as aforesaid, pay so much of the same fine and Covenaait expenses as shall amount to that sum. And the said [mort- gagOTTo" g^go'''] "^oth hereby further, for himself, his heirs, executors, mderiet^ administrators, and assigns, covenant with the said [lessee,] renewed his executors, administrators, and assigns, that, upon pay- lessee, for ment of any such fine and expenses of renewal as afore- secunngre- g^id^ or of such part thereof as aforesaid, by the said [les- APPENDIX. 643 see,] his executors, administrators, or assigns, he, the said payment ol [mortgagor,'] his executors, administrators, or assigns shall and inte-' and will, immediately upon such renewal, at his or their '''^^*- own costs and charges, effectually assign or demise, at the option of the said [lessee,] his executors, administrators, or assigns, the premises to be comprised in such renewed lease, with their appurtenances, unto the persons or person paying the same fine and expenses of renewal, or such part thereof as aforesaid, their or his executors, administrators, or assigns, for the term, or for all the term except the last day thereof, for which the same premises shall have been granted by such new lease, by way of mortgage, for secur- ing the repayment to the said [Zessee,] his executors, admi- nistrators, or assigns, of the principal sum or sums so advanced or paid, for such renewal fine and expenses of renewal as aforesaid, with interest thereon, after the rate of per centum per annum, and subject thereto, upon trust for the said [mortgagor,] his executors, administrators, and assigns, according to his right and interest in the pre- mises, to be comprised in any such new lease. In witness, &c. NO. XIX. Lease of a Cotton Mill, Machinery, and Gear, Sfc, for a term, of Years, the Lessors to have the option of purchasing at the end of the term. This indenture, made the day of , in the year Parties. of our Lord , between [lessors,] of , of the one part, and [lessee,} of , of the other part, witnesseth : That in consideration of the rents and covenants hereinafter Testatum. reserved and contained, and on the part of the said [lessee,] his executors, administrators, and assigns to be paid and performed, he, the said [lessor,] doth by these presents demise and lease unto the said [lessee,] his executors, admi- nistrators, and assigns, all that cotton-spinning mill, with the Parcels. engine-house, steam-engine, boilers, machinery, going gear, fixtures, and other the appurtenances thereto respectively belonging, of him, the said [lessor,'] as the same premises are now used and let in the way of room and power, to the 644 APPENDIX. said [lessee] ; and also all those several buildings used and occupied by the said several occupiers of the said mill, as store-houses or otherwise, and all the vacant ground adjoin- ing or near the said premises ; and also all those twelve tenements or cottages, situate and adjoining near to the said mill, and now in the several occupations of , &c., or some or one of them ; all which premises are situate at or near , in the township of , in the parish of afore- said, and are called or known by the name of The Lower Mill ; together with all houses, outhouses, edifices, build- ings, roads, ways, paths, passages, watercourses, pumps, and wells of water, culverts, and especially the culvert or tunnel by which the said mill and engine are supplied with water from the adjoining brook or rivulet, easements, privi- leges, rights, members, and appurtenances whatsoever to the same premises, or any part thereof, belonging or apper- Excep- taining, or now used and occupied therewith. Except and mines' and always reserved out of this present demise unto the said right of [lessor,] his heirs, and assigns, all mines of coal, iron, lead, or other minerals, and all quarries of stone or slate, and beds of clay, within or under the said demised premises, with liberty for him and them, and his and their agents and workmen, at all times during this demise, to dig for, get, smelt, and work any such mine, minerals, quarries, and beds of clay, and to lead and carry away the same with carts and carriages over any part of the said demised pre- on pay- mises, making reasonable compensation to the said [lessee,! dlmag^to ^'® executors, administrators, or assigns, for the damage he lessee; or they may thereby sustain ; and also saving and reserv- ing right of ing unto the said [lessor,] his heirs, or assigns, and his or fnspectpre- their agent or agents, the liberty of entering upon the said mises. premises hereby demised, four times in the year,' at season- able times in the daytime, for the purpose of viewing the Habendum. State and condition thereof. To have and to hold the said mill, engine-house, steam-engine, machinery, going gear, fixtures, cottages, buildings, vacant ground, hereditaments, and all and singular other the premises hereby demised, or intended so to be, with their appurtenances, unto the said [lessee,] his executors, administrators, and assigns, from the day of last past, for the term of seven years Subject to thence next ensuing, (subject to the payment of the yearly APPENDIX. 645 chief rent of , hereinafter particularly mentioned) ; chief rent, yielding and paying therefor, yearly and every year during jjedden- the said term, (except only in case of fire, as hereinafter^™"'^ , mentioned,) for and in respect of the said premises, unto except in the said [lessor,] his heirs, and assigns, the clear yearly rent of , of lawful money of , by four equal quarterly payments, on the twenty-fourth day of June, the quarterly. twenty-fourth day of September, the twenty-fourth day of December, and the twenty-fourth day of March, in each year ; the first payment to begin and be made on the twenty-fourth day of June now next ensuing. And the Covenant said [lessee'] doth hereby, for himself, his heirs, executors, p^yj^^^t administrators, and assigns, covenant with the said [lessor,] except m , ° . case of his heirs, and assigns, that he, the said [lessee,] his execu- fire. tors, administrators, or assigns shall and will, during the said term, (except only in case of fire, as hereinafter men- tioned,) well and truly pay unto the said [lessor,] his heirs, and assigns, the said yearly rent of , at the days and in manner hereinbefore appointed for payment thereof. And also that he or they shall and will, over and besides To pay the said yearly rent, during the said term, pay, satisfy, and ' discharge unto , of , his heirs, and assigns, the annual chief rent of nineteen pounds three shillings, payable to him and them out of the said demised premises, on the twenty-fifth day of December in each year ; and also a cer- tain outpayment, not exceeding annually, to be pay- and a year- able on the same day to Messrs. , of , bankers, or stranger," ' such other person or persons as shall be entitled to receive*"'"^®"'' the same, for the privilege of passing and continuing the culvert or tunnel hereinbefore mentioned under or through their property to the said brook ; and shall and will save and in- harmless the said [lessor,] his heirs, executors, administra- les™^ ^ tors, and assigns from the same chief rent and outpayment ''^^'^"'°'"- respectively, and from all suits and damages in conse- quence of the non-payment thereof respectively. And also that he, the said [lessee,] his executors, administrators, or assigns shall and will from time to time, and at all times during this demise, pay, satisfy, and discharge all parlia- mentary, parochial, township, county, and other taxes, rates, duties, and assessments whatsoever, that shall be taxed, rated, assessed, charged, or imposed upon, or in 646 APPENDIX. respect of, the said premises hereby demised, or any part To repair, thereof, or the owners or occupiers thereof. And also case of fire; that he, the said [lessee,] his executors, administrators, or assigns shall and will, at his and their own expense, during this demise, when and so often as occasion shall require, (damage by accidental fire only excepted,) substantially maintain, point, glaze, paint, amend, and keep the whole of the said cotton-mill, engine-house, engine, machinery, going gear, cottages, and premises hereby demised, and the roofs, windows, doors, and wood and iron work thereof respectively, and all and singular the outhouses, stables, gates, walls, fences, watercourses, roads, and appurte- nances whatsoever thereto belonging, in good, substantial, and quietly ^^'^ complete tenantable repair and condition ; and the jdeldupat same, so painted, amended, and kept in such complete term. repair and condition, (reasonable wear and tear only ex- cepted,) shall and will, at the expiration or the sooner determination of this demise, peaceably and quietly surren- der and yield up unto the said [lessor,] his heirs, or assigns. To expend ■^^'^ ^'®° '^^^ '^®' *^® ^^^^ [lessee,] his executors, adminis- a certain trators, or assigns shall and will, within twelve months pairs witli- from the date hereof, lay out and expend the sum of , monthsT^ at the least, in substantial repairs of the said mill, to the satisfaction of the said [lessor,] his heirs, or assigns ; and particularly shall and will paint the whole of the outside wood-work of the said mill, as part of such repairs. Pro- Proviso for vided always, that if it shall happen that the said yearly reentry, on jent hereby reserved, or any part thereof, shall be behind non-pay- ment of by the space of twenty-one days next after any of the said 1™ , c. g^^yg whereon the same ought to be paid as aforesaid, or if the said [lessee,] his executors, administrators, or assigns shall not, in all things, keep and observe all and every the covenants and agreements herein contained, on his or their part to be observed and kept, then it shall be lawful for the said [lessor,] his heirs, or assigns, into and upon the said demised premises, or any part thereof in the name of the whole, to reenter, and the same to have again, repossess, Lesseemay^rid enjoy, as in their first and former state. Provided remove j^]sq tj^^t if, during the continuance of this demise, the said newly- . . . erected en- [lessee,] his executors, administrators, or assigns shall put Sid of up and erect in and about the said mill and premises APPENDIX. 647 hereby demised, any shafts, machinery, or fixtures, other term, or be than what are now there, and which are particularly men- fj^gm by tioned and described in the schedule thereof indorsed on'^^^°''- these presents, he or they shall be at liberty, on the expira- ration or other sooner determination of this demise, either to remove the same, (making good any damage to be occasioned by such removal,) or at the option of the said ' [lessor,] his heirs, or assigns, be paid by him or them such sums of money for the same as two indifferent per- sons, one to be chosen by each party, or their umpire, shall award and affix. Provided also, that unless the said [les- sor,] his heirs, or assigns shall omit to give to the said [les- see,] his executors, administrators, or assigns, three calen- dar months' notice, in writing, previously to the expiration or other sooner determination of the said term, (such notice to be left at the said mill,) expressing his or their intent to become the purchaser or purchasers thereof, he or they shall be deemed to have declined such purchase. And the Covenant said [lessor'] doth hereby, for himself, his heirs, and as- q^et en- * signs, covenant with the said [lessee,] his executors, admi-joy™™*- nistrators, and assigns, that he or they, paying the rent and performing the several covenants and agreements herein- before reserved and contained, and on his and their part to be paid and performed, shall and may peaaeably and quietly have, hold, occupy, use, and enjoy the said pre- mises hereby demised, with their appurtenances, (espe- cially the said culvert or tunnel for supplying the said mill with water,) during the said term hereby granted, without any interruption, suit, or disturbance from or by the said [lessor,] his heirs, or assigns, or any person or persons claiming or to claim by, from, through, or under him, them, or any of them. Provided always, and it is hereby pro-riso for further declared and agreed, that in case the said mill, ^f ^^^^5^° engine-house, steam-engine, machinery, fixtures, cottages, ope of fire, buildings, hereditaments, and all and singular other the ses restored premises hereinbefore described, or any part or parts there- ■'''^' of, shall, at any time or times during the said term hereby granted, happen to be destroyed or damaged by fire, so as to render the same unfit for the spinning of cotton, or unin- habitable, then and in such case, the rent hereinbefore reserved for the same, or a just and proportional part 648 APPENDIX. thereof, according to the nature or extent of the injury sus- tained, shall be suspended or abated until the said premises shall have been rebuilt or repaired by the said [lessor,] his heirs, or assigns, and be put in a fit state and condition for habitation, or. for carrying on the spinning or manufacturing of cotton, for which the same demised premises are now used ; and in case of any dispute or difference between the parties interested therein, with respect to the time of such suspension, or the amount of such abatement respectively, the same shall, from time to time and at all times, be referred to the arbitrament and determination of three indifferent persons, to be named or chosen as aforesaid. In witness, &c. NO. XX. Assignment of a Lease under Seal. This indenture, made the day of , in the year 1844, between C. D., of , merchant, of the first part, and E. F., of said city, merchant, of the second part. Whereas in and by a certain indenture of lease, bearing date the day of , in the year 1844, made between A. B., of ■• , of the one part, and the said C. D. of the other part ; he, the said A. B., for the considerations therein mentioned, did grant, lease, &c., all that certain messuage, &c. To hold unto the said C. D., his executors, administrators, and assigns, from the day of , in the year 1844, for and during the whole term of years from thence next ensuing, and fully to be complete and ended, at and under the yearly rent of dollars, payable, &c., as in and by the said indenture of lease, on reference thereto, will more fully appear. Now this inden- ture witnesseth that the said C. D., for and in consider- ation of the sum of dollars, lawful money of the United States, to him in hand paid by the said E. F., at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bar- gained, sold, assigned, transferred, and set over, and by these presents doth grant, bargain, sell, assign, transfer, and set over unto the said E. F., his executors, administra- APPENDIX. 649 tors, and assigns, all the said messuage or tenement and premises above mentioned, and every part and parcel thereof, with the appurtenances ; and also all the estate, right, title, interest, term of years yet to come and unex- pired, property, claim, and demand whatsoever of the said C. D., of, in, and to the same, and ^every part and parcel thereof, together with the said indenture of lease itself. To have and to hold the said messuage or tenement and premises above mentioned, and hereby granted and as- signed, and every part and parcel thereof, with the appur- tenances, unto the said E. F., his executors, administrators, and assigns, for and during all the rest, residue, and re- mainder yet to come and unexpired of the said term of years in and by the said indenture of lease granted, in as full, large, and ample a manner, to all intents and purposes, as the said C. D., his executors, administrators, or assigns now holds, or may at any time hold, and enjoy the same, by virtue of the said indenture of lease. Subject, neverthe- less, to the several rents, covenants, conditions, and agree- ments in the said indenture of lease reserved and con- tained. In witness whereof, &c. NO. XXI. An Assignment of a Leasehold Interest, by Deed-poll, indorsed on the Lease. Know all men by these presents, that I, the within-named C. D., for and in consideration of the sum of , of law- ful money of the United States, to me in hand paid by G. F., of , gentleman, at or before the ensealing and deli- very of these presents, the receipt whereof I do hereby acknowledge, have bargained, sold, set over, and assigned unto the said G. F. all and singular the messuage or tene- ment, yard, garden, coach-house, stables, outhouses, and hereditaments, in and by the within written indenture demised or mentioned so to be, with their appurtenances, and also all that small garden, at the end of and adjoining 55 650 APPENDIX. to the aforesaid garden, with the summer-house and mount, which were leased or agreed to be leased to me, by the within named A. B., by agreement between us, dated the day next before the date hereof, for twenty-one years, or such other term as is therein mentioned, at the yearly rent of '■, lawful money aforesaid, payable quarterly, that is to say, , and also all my estate, right, title, interest, term of years, claim, and demand whatsoever, of, into, or out of the same messuage and other the premises, or any or either of them, or otherwise howsoever, together with the same indenture and agreement, and all the benefit thereof To have and to hold the said messuage or tene- ment, buildings, garden, summer-house, mount, and other the premises hereby assigned or mentioned so to be, with the appurtenances, unto the said G. F., his executors, admi- nistrators, and assigns, from henceforth, for all the now residue of the within mentioned term of twenty-one years, and of such other term or terms as I, the said C. D., now have or ought to have therein respectively, subject, never- theless, to the rents, covenants, and agreements in the 'said indenture and agreement respectively reserved, and con- tained, and agreed upon, and which, from henceforth, on the tenant's or lessee's part, are or ought to be paid, done, and performed. In witness whereof, &c. NO. XXII. An Assignment of a Lease, hy Indenture indorsed thereon. Parties, This indenture, made, &c., between H. H., of , &c., of the one part, and J. J., of , &c., of the other part, witnesseth : That for and in consideration of the sum of dollars of lawful money of the United States, to him, the said H. H., in hand paid by the said J. J,, at or before the sealing and delivery of these presents, the receipt whereof the said H. H. doth hereby acknowledge, assign, he, the said H. H., hath granted, bargained, sold, assigned, transferred, and set over, and by these presents doth grant, APPENDIX. 651 bargain, sell, assign, transfer, and set over unto the said J. J., his executors, administrators, and assigns, all that the within mentioned messuage or tenement, dwelling-house, and premises, together with the appurtenances thereunto belonging. And all the estate, right, title, interest, term, term, and terms of years yet to come and unexpired, use, trust, property, privilege, claim, and demand whatsoever, both at law and in equity of him, the said H. H., of, in, and to the same, or any part thereof, together with the said indenture of lease. To have and to hold the said messuage or tene- ment, dwelling-house, and premises, and also the within indenture of lease, unto the said J. J;, his executors, admi- nistrators, and assigns, from the day of now last past, for and during all the unexpired residue of the term of , by the within indenture of lease granted, free and clear of, and from all arrears of rent, rates, and taxes whatsoever, up to the said day of last. But subject, nevertheless, to the payment of the rent, and to subject to the observance of all and singular the covenants, condi- amj cove- tions, and agreements therein reserved and contained, ■^n'' thriease the said H. H. doth hereby, for himself, his heirs, execu- tors, and administrators, covenant, promise, and agree to and with the said J. J., his executors, administrators, and as- signs, in manner following, (that is to say,) that he, the said H. H., shall and will well and truly pay, or cause to be Assignor paid, all the rent, taxes, charges, rates, and assessments j^J^^^^^yi due in respect of the said premises hereby assigned, up to "iisoliarge „ , . , p , , , , . , all debts, the day of last. And further, that he, the said &c., up to H. FI., hath not at any time heretofore made, done, com- q^I a™;^- mitted, or executed, or willingly permitted or suffered any™""'; ^°/^ txlELL D6 U.2LS act, deed, matter, or thing whatsoever, whereby the said not incum- within indenture of lease, messuage or tenement, dwelling- estate, house, and premises hereby assigned, or any part thereof, are, is, can, shall, or may be impeached, charged, affected, or incumbered in title, charge, estate, or otherwise how- soever, and that for and notwithstanding any such act, deed, matter, or thing as aforesaid, the said within written inden- ture of lease is a good and effectual lease, valid in law ; and that the rent and covenants therein and thereby re- served and contained, have been hitherto well and truly paid, kept, and performed. And that for and notwithstand- 652 APPENDIX. ing any such act, deed, matter, or thing as aforesaid, he and has the said H. H., now hath in himself good right, full power assTm. ° ^"'^ lawful and absolute authority to assign and assure the said premises hereinbefore mentioned, with the appurte- nances, unto the said J. J., his executors, administrators, and assigns, in manner aforesaid, and according to the true intent and meaning of these presents. And also that he, the said J. J., his executors, administrators, and assigns shall and may from time to time, and at all times hereafter during all the rest, residue, and remainder of the said term For quiet of , peaceably and quietly have, hold, use, occupy, by as^^° possess, and enjoy the said messuage or tenement, and signee ; dweliing-house and premises, with the appurtenances hereby assigned ; and the rents, issues, and profits thereof, with- out the lawful let, suit, trouble, denial, eviction, or inter- ruption of or by him, the said H. H., his heirs, executors, or administrators, or any other person or persons lawfully claiming or to claim from, by, under, or in trust for for further him, them, or either of them. And further, that he, the assurance, g^^j^j jj jj_^ j^jg jjgj^g^ executors, administrators, and all and every person or persons lawfully claiming or to claim from, by, under, or in trust for him, them, any, or either of them, shall and will from time to time, and at all times hereafter, upon every reasonable request, and at the costs and charges in the law of the said J. J., his executors, administrators, or assigns, make, do, and execute, or cause to be made, done, and executed, all such further and other lawful and reasonable acts, deeds, and things, assignments, and assu- rances in the law whatsoever ; for the further, better, and more perfect and absolute assigning, assuring, and confirm- ing the said premises, with the appurtenances, unto the said J. J., his executors, administrators, or assigns, for all the rest, residue, and remainder of the said term, as he or they, or his or their counsel in the law, shall reasonably Assignee advise and require. And the said J. J., for himself, his covenants , , ■ . , . i , , , to pay executors, admmistrators, and assigns, doth hereby cove- ''®°*5 nant, promise, and agree to and with the said H. H., his heirs, executors, and administrators, in the manner follow- ing, (that is to say,) that he, the said J. J., his executors, administrators, and assigns, shall and will, from time to time and at all times, from the day of , during APPENDIX. 663 the residue of the said term of years, well and truly pay, or cause to be paid, unto such person or persons as for the time being shall be entitled to receive the same, the yearly rent by the said indenture of lease reserved and made payable, and which from thenceforth shall grow due. And also well and truly perform, fulfil, and keep all and to perfoi-m singular the covenants, clauses, provisos, and agreements nants in' in the said lease contained, and which, by and on the les- "^"^ ^^^^^' see's or assignee's part and behalf, is or are to be paid, observed, and performed from the said of . And also shall and will, from time to time and at all times, well and sufficiently save, defend, keep harmless and indemnified the said H. H., his executors, administrators, and assigns, from and against all costs, charges, damages, and expenses whatsoever, which they or any or either of them shall or may sustain, or become liable to, by reason or means of the said J. J., his executors, administrators, or assigns not paying all or any part of the said rent from time to time to become due, for or in respect of the said pre- niises hereby assigned, from and after the said day of , or by reason or means of their not observing and fulfilling all or any of the covenants, provisos, and agree- ments in the said within written indenture of lease reserved and contained, which, by and on the part of the said J. J., his executors, administrators, and assigns, are to be ob- served, performed, fulfilled, and kept from thenceforth. In witness whereof, &c. NO. XXIII. Assignment of the Wife's Term for Years ly the Husband. This indenture, made the day of , &c., be-p„j;g3_ tween A. B., of , and F. his wife, (before her mar- riage F. T., spinster,) of the one part, and C. D., of , of the other part. Whereas by an indenture, bearing date Eecites the the day of , and made, or expressed to be made, J^'S"' *'"^ between J. H., of the one part, and the said F. B., (then term, F. T., spinster,) of the other part ; for the considerations 55* 654 APPENDIX. therein mentioned, the said J. H. did demise and lease unto the said F. B,, her executors, administrators, and assigns, all that messuage, &c., with the appurtenances ; to hold the same unto the said F. B., her executors, administrators, and assigns, from the day of then last past, for and during the full end and term of ninety-nine years from thence next ensuing, and fully to be complete and ended, at, under, and subject to the rent, covenants, and agree- ments therein reserved and contained on the part of the said F. B., her executors, administrators, and assigns, to and the be paid, observed, performed, and kept; and vehereas the sale™°'°^ said A. B., with the privity and approbation of the said F. his wife, hath contracted and agreed with the said C. D. for the absolute sale to him, the said C. D., of the said messuage or tenement, and all and singular other the pre- mises comprised in the aforesaid in part recited indenture of lease, for the residue now to come and unexpired of the The consi- said term of ninety-nine years, at or for the price or sura of . Now this indenture witnesseth : That in pursuance of the said agreement, and for and in consideration of the sum of , of lawful money of the United States, to the said A. B. in hand well and truly paid, by the said C. D., at or before the sealing and delivery of these presents, (the receipt whereof he, the said A. B., doth hereby admit and acknowledge, and of and from the same, and every part thereof, doth acquit, release, and discharge the said C. D., his heirs, executors, administrators, and assigns forever, by these presents,) and also for and in consideration of the sum of five dollars of like lawful money, to the said F. B. in hand well and truly paid by the said C. D., at or imme- diately before the sealing and delivery of these presents, (the receipt whereof is hereby acknowledged) ; he, the said A. B., with the privity and approbation of the said F. his wife, (testified by her being a party to and sealing and delivering these presents,) and also the said F. B. have, and each of them have bargained, sold, assigned, trans- ferred, and set over, and by these presents do and each of The assign- them doth bargain, &c., unto the said C. D., his executors, °^^'' administrators, and assigns, the said messuage or tenement, and all and singular other the premises comprised in and demised by the said in part recited indenture, with their APPENDIX. 655 and every of their appurtenances, together with the said in part recited indenture, and the full benefit thereof. And all the estate, right, title, interest, term, and terms for Habendum. years, property, possibility, claim, and demand whatsoever, both at law and in equity, of them, the said A. B., and F. his wife, or either of them, of, in, to, or out of the same * premises, or any part thereof. To have and to hold the said messuage or tenement, and all and singular other the premises hereby assigned or expressed, and intended so to be, with their appurtenances, unto the said C. D., his executors, administrators, and as- signs, for and during all the residue and remainder now to come and unexpired of the said term of ninety-nine years, subject, nevertheless, to the payment of the rent, and to the performance and observance of the covenants and agreements in the said in part recited indenture reserved and contained, and which, from henceforth, on the lessees' or assignees' part and behalf, are and ought to be paid, observed, and performed. And the said A. B., for himself, Covenants his heirs, executors, and administrators, doth hereby cove- band"\hat' nant, promise, and agree with and to the said C. D., his lie and his ... 1 . 1 I . 'wife had executors, admmistrators, and assigns, by these presents, m good right manner following, (that is to say,) that for and notwith- '° ^^^'S°- standing any act, deed, matter, or thing whatsoever by him, the said A. B., or the said F. his wife, made, done, com- mitted, or executed, or knowingly or willingly suffered to the contrary, the hereinbefore in part recited indenture of lease, at the time of the sealing and delivery of these pre- sents, is a good and effectual lease and demise in the law of the said premises therein comprised, and the said term of ninety-nine years is not forfeited, merged, extinguished, surrendered, determined, or otherwise become void or void- able. And that for and notwithstanding any such act, For quiet deed, matter, or thing whatsoever as aforesaid, he, the said enjoyment. A. B., and the said F. his wife, or one of them, now have or hath in themselves, himself, or herself, good right, full power, and lawful and absolute authority to assign the pre- mises hereby assigned, or expressed or intended so to be, with the appurtenances thereunto belonging, unto the said C. D., his executors, administrators, and assigns, for all the residue now to come of the said term of ninety-nine years 656 APPENDIX. in manner aforesaid, according to the true intent and mean- ing of these presents. And that it shall and may be lawful to and for the said C. D., his executors, administrators, and assigns, from time to time and at all times hereafter, during the said term of ninety-nine years, peaceably and quietly to enter into and upon, and to have, hold, occupy, possess, and enjoy the premises hereby assigned, or ex- pressed and intended so to be, with their appurtenances, and to have, receive, and take the rents, issues, and profits thereof, and of every part thereof, to and for his and their own use and benefit, without the lawful let, suit, trouble, denial, eviction, interruption, claim, or demand whatsoever, of or by him, the said A. B., and the said F. his wife, or either of them, their or either of their executors or adminis- trators, or by any other person or persons lawfully or equi- tably claiming or to claim by, from, or under or in trust for them, or any of them. And that free and clear, and for- ever discharged or otherwise by the said A. B., his heirs, executors, or administrators, well and sufficiently saved, defended, kept harmless, and indemnified of, from, and against all estates, titles, troubles, charges, debts, and in- cumbrances whatsoever, either already had, made, exe- cuted, occasioned, or suffered, or hereafter to be had, made, executed, occasioned, or suffered by the said A. B., and F. his wife, or either of them, their or either of their executors or administrators, or by any person or persons lawfully or equitably claiming or to claim by, from, under, or in For further trust for them, or any of them. And farther, that he, the said A. B., his executors and administrators, and all and every other person^ or person having or claiming, or who shall or may have or claim any estate, right, title, interest, property, claim, or demand whatsoever, either at law or in equity, of, in, to, or out of the said premises hereby assigned, or expressed and intended so to be, or any of them, or any part thereof respectively, by, from, or under, or in trust for him, the said A. B., and F. his wife, or either of them, their or either of their executors or administra- tors, shall and will from time to time, and at all times here- after during the said term of ninety-nine years, upon every reasonable request to be made for that purpose, by and at the proper costs and charges in the law of the said C. D., APPENDIX. 657 his executors, administrators, or assigns, make, do, and exe- cute, or cause and procure to be made, done, and executed, all and every such further and other lawful and reasonable acts, deeds, things, devices, assignments, and assurances in the law whatsoever, for the farther, better, more perfectly and absolutely assigning and assuring of the premises hereby assigned, or expressed and intended so to be, and every part thereof, with their appurtenances, unto the said C. D., his executors, administrators, and assigns, for the residue which shall be then to come of the said term of ninety-nine years, as by the said C. D., his executors, administrators, or assigns, or his or their counsel in the law shall be reasonably devised, or advised and required. And ^n^ for also that he, the said A. B., his executors, or administrators, W™ent of shall and will pay the rent reserved by the aforesaid in part perform- ■ 1 • 1 p 1 1 • 1 1- J anceofco- recited mdenture of lease, up to and mcludmg day Tenants up now next ensuing, and shall and will keep indemnified the ttaief ^™ said C. D., his executors, administrators, and assigns, and his and their lands, tenements, goods, and chattels respect- ively, from the same rent, and from all costs and expenses on account of the non-payment thereof, or on account of the breach or non-performance of any of the covenants or agreements in the said in part recited indenture on the part of the said F. B., her executors, administrators, or assigns, to be performed from the commencement thereof. And Covenants the said C. D., doth hereby, for himself, his heirs, execu- ^^ assignee tors, administrators, and assigns, covenant, promise, and ment of agree with and to the said A. B., his executors, administra- perform- tors, and assigns, that he, the said C. D., his executors, ^g^^j^^g""" administrators, and assigns shall and will, at all times dur- after that . . . time. ing the contmuance of the said term of ninety-nine years, pay the yearly rent reserved by the aforesaid in part recited indenture of lease, from day of now next ensuing, and perform, fulfil, and keep all and every the covenants and agreements in the said indenture of lease contained, on the part of the tenant or lessee from hence- forth to be performed, and from the same rent, covenants, and agreements, and all costs and expenses on account of any breach, neglect, or default of, or in payment or per- formance thereof as aforesaid, shall and will save harmless and keep indemnified the said A. B., and F. his wife, and 658 APPENDIX. each of them, their and each of their executors and admi- nistrators, and their lands, tenements, goods, and chattels respectively. In witness, &c. NO. XXIV. Lease hy Husland and Wife, under a Power of Leasing. Parties. This indenture, made, &c., between E. H., of G. his wife, of the one part, and C. B., of — , and -, of the Witness- eth, that . pursuant to the power, and in con- sideration of the rent and cove- nants, limit, ap- point, and demise to the lessee the parcels, Habendum, For the term of twenty- one years, Other part, witnesseth : That pursuant to and in execution of a power to them, the said E. H., and G. his wife, for this purpose given or limited, in and by a certain indenture of release, bearing date the day of , made be- tween the said E. H. of the first part, the said G. H., (then G. P., spinster,) of the second part, and C. D. of the third part, (being the settlement made previously to, and in con- templation of, the marriage then intended, and which was shortly afterwards duly had and solemnized between the said E. H., and G. now his wife,) and of every or any other power or authority, in anywise enabling them in this behalf, for and in consideration of the rents, covenants, and agreements hereinafter reserved and contained, on the part and behalf of the said C. B., his executors, administra- tors, and assigns, to be paid, observed, and performed ; they, the said E. H., and G. his wife, do, by this indenture, limit, appoint, and demise unto the said C. B., his execu- tors, administrators, and assigns, all that, &c., (the par- cels,) together with all and singular houses, outhouses, tenements, hereditaments, and appurtenances whatsoever to the said messuage and premises belonging, or in any- wise appertaining : To have and to hold all and singular the premises hereinbefore limited, appointed, and demised, or intended so to be, with the appurtenances, unto the said C. B., his executors, administrators, and assigns, for the term of twenty-one years, to be computed from the day of, &c., now last past, and thenceforth next ensuing, and fully to be complete and ended ; yielding and paying yearly, and every year during the said term, unto the person or APPENDIX. 659 persons for the time being entitled to the said premises, in reversion or remainder immediately expectant, on the said term of twenty-one years, the yearly rent or sum of $800, at the year- lawful money of the United States of America, by equal gQo dollars, quarterly payments, on the first days of March, June, Sep- tember, and December, in every year, without any deduc- tion or abatement whatsoever for or in respect of the land- tax, or any other present or future taxes, or any other mat- ter or thing whatsoever ; the first quarterly payment of the said yearly rent to be made on the first day of March next ensuing the day of the date of these presents ; pro- Proviso for vided always, nevertheless, and these presents are upon "^"'^ '^' this express condition, that if the said yearly rent, oronnon- any part thereof, shall be in arrear after the same ought to^l^ ^ be paid as aforesaid, or if the said C. B., his executors, administrators, or assigns shall, at any time or times during the continuance of this demise, transfer, or assign over, or or by les- underlet, or agree to transfer, or assign over, or underlet to sf|[^ent, any person or persons whomsoever, the premises herein- before limited, appointed, or demised, or any part or parts thereof, for all or any part of the said term, without the license and consent, in writing, of the person or persons for the time being entitled as aforesaid, for that purpose first had and obtained ; or if the said C. B., his executors, admi- nistrators, or assigns shall become bankrupt, or shall com- or becom- pound his or their debts, or assign over his or their estate J^^j q,. " and effects for payment thereof, or if any execution shall ?°™?°tj"* issue against him or them, or any of his or their effects whatsoever, whereupon the said premises, or any part thereof shall be taken, or attempted to be taken in execu- tion ; or if the said C. B., his executors, administrators, or assigns shall not, from time to time and at all- times during the continuance of this demise, well and truly observe, per- or on form, fulfil, and keep all and singular the covenants, condi- an^oove- tions, and agreements which, on his and their part, are and nants by ought to be observed, performed, fulfilled, and kept accord- ing to the true intent and meaning of these presents ; then, and in any of the said cases, it shall and may be lawful to and for the person or persons for the time being entitled as aforesaid, into and upon the said appointed and demised premises, or any part thereof in the name of the whole, to 660 APPENDIX. enter, and the same to have, retain, possess, and enjoy, dis- charged from these presents, and the limitation, appoint- ment, and demise intended to be hereby made as aforesaid, any thing herein contained to the contrary thereof in any- wise notwithstanding. Covenants And the said C. B. doth hereby, for himself, his heirs, y ssee, gjjg(jy[Q].g^ administrators, and assigns, covenant, promise, and agree with and to the person or persons for the time being entitled as aforesaid, in manner following, that is to say : that he, the said C. B., his executors, administrators, and assigns shall and will well and truly pay, or cause to be paid unto the person or persons for the time being enti- forpay- tied as aforesaid, the aforesaid yearly rent of $800, on rent; Such days or times as are hereinbefore mentioned and appointed for the payment thereof; and also shall and will and taxes; well and truly pay, bear, and discharge the land-tax, and all other taxes, charges, duties, or assessments whatsoever, either already taxed, charged, assessed, or imposed, or at any time or times hereafter, during the continuance of this demise, to be taxed, charged, assessed, or imposed upon the said premises, or any part or parts thereof, or upon the person or persons for the time being entitled as aforesaid in respect thereof, as landlord or landlords of the same pre- mises, by any competent authority whatsoever. And also shall and will, at his and their own costs and to repair charges, well and substantially uphold, repair, support, and ' maintain the said messuage or farm-house, and all the barns, stables, and out-buildings thereunto belonging, and all the glass windows, glazing, and lead-work of the same messuage or farm-house and premises ; and all locks, keys, hinges, bolts, bars, fixtures, pumps, and the going gears thereof ; and all gates, stiles, pales, posts, bridges, hedges, ditches, drains, watercourses, and inward and outward fences of every kind, of or belonging to the said premises, or any part or parts thereof, at all times during the conti- nuance of this demise, when need and occasion shall be or sufficient require, sufficient timber and fencing stuff being found by of tiTben the person or persons for the time being entitled as afore- said, within a reasonable distance from the place or places where the same shall be required to be used, such timber and fencing stuff to be cut and carried at the expense of APPENDIX. 661 the said C. B,, his execulors, administrators, or assigns and the same messuage, or farm-house, articles, things, and premises being so well and sufficiently upholden, repaired, supported, and maintained, shall and will peaceably and quietly leave, surrender, and yield up to the person or and leave persons entitled to the said premises, at the end of or^j^^^™^ sooner determination of the said term, together with such ^n'' "^ '^? tenn, with fixtures, materials, and thmgs as are now, or shall at any fixtures; time or times during the continuance of this demise, be set up and affixed within, upon, or aboft the said premises hereinbefore limited, appointed, and demised, or any part or parts thereof, (reasonable use or uses thereof, and acci- dent by fire only excepted.) And also that the said C. B., his executors, administra- not to tors, or assigns, or any of them, shall not nor will, at any undlriet; time or times during the continuance of this demise, trans- fer, assign over, or underlet to any person or persons whomsoever the said premises hereinbefore demised, or any part or parts thereof, for all or any part of the said term of years, without the license or consent, in writmg, of the person or persons for the time being entitled as afore- said, for that purpose first had and obtained. And also that he, the said C. B., his executors, adminis- trators, and assigns shall not, nor will at any time or times during the continuance of this demise, plough, dig, plough up break, or convert into tillage or garden ground any of the ^L. '^® fields, closes, pieces or parcels of meadow, pasture, and marsh lands, hereinbefore limited, appointed, and demised, or any part thereof respectively. And also shall not, nor will during the continuance of mow the this demise, mow, or cause or suffer to be mowed, thejg°g^°ij^ fields, closes, pieces or parcels of land hereinbefore de- 0°"^ ^ mised, or any of them, or any part thereof respectively, more than once in a year during the three last years of this demise, nor permit or suffer the same, or any part thereof respectively, , to be injured or damaged by heavy cattle during the continuance of this demise. And also shall and will so manage and cultivate the arable lands, (parcel of the said premises hereinbefore limited, appointed, and demised,) at all times during the continuance of this demise, that no more than two succes- 56 662 APPENDIX. or take sive crops of corn or grain, and those two not of the same tXmoce's- kind, shall be had or taken from off the same, or any part sive crops, ^j. pg^^jg thereof, without giving the same a clear summer fallow, or sowing the same with turnips in the ensuing year, and with the next crop after such turnips laying down the same land, in a husbandlike manner, with a sufficient quantity of sound clover and other grass seeds, and conti- nuing the sartie so laid down two years, to be computed from the midsummer day next after sowing the same seeds. # To inn the And also shall and will yearly, and every year during th™pre-°° the said term, inbarn or stock on the said premises all the mises, cofu qj. grain which shall grow or arise therefrom, and there thrash the same, and feed and fodder cattle, or otherwise and use the spend or consume on the said premises all the straw, chaff, therZ' ' ^"'^ clover arising therefrom, and also all the hay and tur- nips that shall grow or arise from or upon the said premises withexcep hereinbefore demised, except the winter straw that shall be '°™' wanted for thatching and daubing work ; also except half the hay and clover which shall arise in the last year of this demise, and the whole of the straw and chaff arising from the corn in the said last year, which half of the hay, and the entirety of which straw and chaff, shall be left upon the said premises, for the benefit of the person or persons for the time being entitled as aforesaid, or his, her, or their succeeding tenant or tenants of the said premises ; which Landlord: ' hay, however, is to be so left upon the premises only for oeedlng'te- ^^^ purpose of giving an option to such person or persons, nant to fjig }jgj qj tjjgj,. succeeding tenant or tenants, so becoming have an op- ° ' & tion to pur- the purchaser or purchasers thereof, at so much money as hay left at the same shall be reasonably worth in the judgment of two a valuation, jmjigioyg persons, one of them to be chosen by the said C. B., his executors, administrators, and assigns, and the other of them to be chosen by the person or persons taking the same ; and in case such two persons so chosen shall dis- agree as to the amount of such valuation, then the same shall be referred to the valuation of a third judicious per- son, to be chosen by the two first chosen, and the valuation to be made shall be binding and conclusive upon all the said parties. And also shall and will spend and lay, in a husbandlike APPENDIX. manner, where the same shall be most wanted, all and every the dung, manure, muck, and compost that shall Also to arise and be made during the continuance of this demise, juTg ma^de from the hay, straw, clover, and turnips that shall be so ^'^""S the *''''' _ teiin on the spent and consumed on the said premises as aforesaid, premises, except the dung, manure, and compost that shall arise and be made therefrom in the last year of this demise, and during the time that shall elapse between the end of this demise and the first day of May then next ensuing, and shall and will turn in heaps and leave in the yard, or some other convenient part of the said premises hereinbefore limited, appointed, and demised, the dung, manure, muck, and so and compost so excepted as aforesaid, except such partg!^^g ® thereof as shall be used for preparing turnips for the benefit of the person or persons for the time being entitled as aforesaid, or his or their succeeding tenant or tenants of the same premises, without any allowance being made to him or them, in respect of the same. And also that he, the said C. B., his executors, adminis- trators, or assigns shall and will yearly, and every year during the continuance of this demise, in a husbandlike manner, cut, scour, or cause and procure to be cut and Also to scoured yards of the fences and ditches upon such ^9°^ , part of the arable land hereinbefore limited, appointed, and out fences. demised ; and roods of the fences and ditches upon such part of the marsh lands as shall most require cutting and scouring ; and do or cause to be done all such out- hawking, danking, and planting necessary for that purpose, being allowed bushes, thorns, and other fencing, sufiicient, to be taken from the premises. And the said E. H. doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree Covenant with and to the said C. B., his executors, administrators, l^y h^^pband _ ' ' _ _ ' witn lessee and assigns, that he, the said C. B., his executors, adminis- for quiet trators, and assigns, paying the said yearly rent of #800 hereinbefore reserved, as the same shall become due and payable, in the manner and form aforesaid, and well and truly observing, performing, fulfilling, and keeping all and singular the covenants and agreements hereinbefore con- tained, on his and their parts to be observed, performed, fulfilled, and kept according to the true intent and meaning 664 APPENDIX. of these presents, shall or lawfully may, peaceably and quietly have, hold, use, occupy, possess, and enjoy all and singular the said messuage or farm-house, and other pre- mises hereinbefore limited, appointed, and demised, or expressed and intended so to be, with their appurtenances, during the said term of twenty-one years, without the law- ful let, suit, trouble, or hinderance of or by the person or persons for the time being entitled as aforesaid, or any per- son or persons whomsoever lawfully claiming or to claim by, from, under, or in trust for such person or persons, or any of them. In witness, &c. NO. XXV. Agreement for Lodgings. Memorandum of an agreement entered into this day of , 1804, by and between A. B., of, &c., and C. D., of, &c., whereby the said A. B. agrees to let, and the said C. D. agrees to take, the rooms or apartments fol- lowing, that is to say : an entire first floor, and one room in the attic story or garrets, and a back-kitchen and cellar opposite, with the use of the yard for drying linen, or beat- ing carpets or clothes, being part of a house and premises in which the said A. B. now resides, situate and being in . To have and to hold the said rooms or apartments, and the use of the said yard as aforesaid, for and during the term of half a year, to commence from next after the date hereof, at and for the yearly rent of of law- ful money of the United States, payable monthly, by even and equal portions, the first payment to be made on next ensuing the date hereof; and it is further agreed that, at the expiration of the said term of half a year, the said C. D. may hold, occupy, and enjoy the said rooms and apartments, and have the use of the said yard as aforesaid, from month to month, for so long a time as the said C. D. and A. B. may and shall agree at the rent of for each month, and that each party be at liberty to quit possession on giving to the other a month's notice in writing. And it APPENDIX. 665 is also further agreed between the said parties, that when the said C. D. shall quit the premises, he shall leave them in as good a condition and repair as they shall be in on his taking possession thereof, reasonable wear excepted. As witness, &c. NO. XXVI. Agreement for Ready-Furnished Lodgings. Memorandum of an agreement entered into this day of , in the year of our Lord •, by and be- tween A. B., of, &c., of the one part, and C. D., of, &c., of the other part, by which the said A. B. agrees to let to the said C. D. a room or apartment up one pair of stairs for- ward, in his, the said A. B.'s house, situate in Street, in the ■ and county aforesaid, ready furnished ; toge- ther with the use and attendance of his servant, in common with the other lodgers. And also the use of a cellar, at the rent of of lawful money of the United States per month. And the said C. D. agrees to take the said room or apartment, with the use of the servant and cellar as aforesaid, at the rent aforesaid, and also to find and provide for himself all manner of linen,, and china or crockery ware whatsoever, that he shall have occasion for, and that if he shall break or damage any part of the furni- ture ' of the said A. B. he will make good or repair the same, or pay him sufficient to enable the said A. B. to put the same in the same plight and condition as they now are in. And it is further agreed, that if either party shall quit or leave the premises, he shall respectively give to or take a month's notice, in writing, to be computed from the date of the said notice. As witness, &c. NO. XXVII. 1. Notice to quit hy the Landlord to his Tenant from Year to Year. Please to take notice, that you are hereby required to 666 APPENDIX. surrender and deliver up possession of the house and lot known as number , in Street, in the city of New- York, which you now hold of me, and to remove therefrom on the first day of May next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant. Dated this day of , 1844. A. B., Landlord. To Mr. C. D., Tenant in possession of the premises above specified. 2. Notice to quit by the Tenant. Please to take notice, that on the first day of May next I shall quit possession, and remove from the premises I now occupy, known as house and lot number , in Street, in the city of New York. Dated this day of , 1844. Yours, &c., C. D. To Mr. A. B. 3. The Like, where the Commencement of the Tenancy is uncertain. Mr. C. D. : — I hereby give you notice to quit and deliver up, on the day of next, the possession of the messuage or dwelling-house, [or " rooms and apartments," or " farm- lands and premises,"] with the appurtenances, which you now hold of me, situate in the of , in the county of , provided your tenancy originally commenced at that time of the year ; or otherwise, that you quit and deli- ver up the possession of the said messuage, &c., at the end of the current year of your tenancy, which shall expire next after the end of one half year from the time of your being served with this notice. Dated the day of , 18—. Yours, &c., A. B. To Mr. C. D. 4. Notice to the Tenant, either to quit the Premises or pay Double Value. Sir: — I hereby give you notice to quit and yield up, on the APPENDIX. 667 day of next, possession of the messuage, lands, tenements, and hereditaments, which you now hold of me, situate at , in the parish of , and county of , in failure whereof 1 shall require and insist upon double the value of the said premises, according to the statute in such case made and provided. Dated this day of . Yours, &c. A. B. To C. D. NO. XXVIII. Surrender of a Term of Years. To all to whom these presents shall come, I, W. E., of -, send greeting. Whereas, by indenture, &c., [recite the lease,] now know ye that I, the said W. E., in consideration of , to me in hand paid by A. B., &c., (the receipt, &c.,) do hereby for me, my, &c., surrender and yield up, from the day of the date hereof, unto the said A. B., his, &c., the said indenture of lease, and all the messuage and premises aforesaid, and the term of years therein yet to come, with all my right, title, and interest thereto, and which I have or claim, or hereafter can or may have or claim, either by virtue of said indenture, or otherwise howsoever ; and that free and clear, and freely and clearly, &c., [against incum- trances.] In witness, &c. NO. XXIX. Surrender of a Lease for Lives, To all to whom these presents shall come, A. B., of ? Parties and C. his wife, (before her marriage C. D., spinster,) send greeting. Whereas W S , of , by an indenture of Recites the lease under seal, bearing date the day of , did tended to 668 APPENDIX. besnrren- grant, demise, and lease unto the said C. B., (then C. D., spinster,) all that messuage, &c., (the parcels,) to hold the same, with the appurtenances, unto the said C. B., her heirs, and assigns, from the day of , for and during the natural lives of E. F. and I. K., and the life of the survivor or longer liver of them, at and under the yearly rents, and subject to the covenants and agreements therein reserved and contained, and on the part of the tenant or lessee to be paid, observed, and performed. And The death whereas the said E. F. hath departed this life ; and whereas the°S^es ^^^ ^^''^ ■^' ^"i ^^^ *-'■ '^'® yi^e, being desirous of obtain- agreemeut ing a renewal of the aforesaid lease, in consequence of the ' death of the said E. F. have applied to and requested the said W S to grant a new lease of the said demised premises, and which the said W S has agreed to do upon having the said recited indenture of lease, and the premises hereby demised, surrendered, and given up in manner hereinafter mentioned ; and whereas and the or- ^7 ^'^ order of the Court of Chancery, bearing date the derof the Jay of , and made on the petition of the said A. reotingthe B., and C. now his wife, it is ordered, (here recite the order) ; Now these presents witness, that in pursuance of the aforesaid agreement, and in obedience to the aforesaid order, and for and in consideration of the sura of ten dollars of lawful money of the United States to the said A. B., and C. his wife, paid by the said W S , at or imme- diately before the sealing and delivery of these presents, (the receipt whereof is hereby acknowledged,) they, the Hushand ^^^'^ ^- ^i ^"*^ ^- ^'^ ^'^^> ^^^^ ^^^ ^ach of them hath and wife surrendered and yielded up, and by this present deed do and each of them doth surrender and yield up unto the thedemis- ^^'"^ ^ ^ ^^^ ^^^^ messuage or tenement and edpremises premises hereinbefore described, and comprised in the aforesaid in part recited indenture of lease, with the appur- and lease to t^nances ; and also the said recited indenture of lease. aesaid j^^^ ^11 the estate, right, title, interest, claim, and demand whatsoever of them, the said A. B., and C. his wife, or either of them, of, in, to, and out of the same premises, and every part thereof. To the end that all the subsisting estate and interest under the said indenture of lease, of and in the said demised premises, may merge and be APPENDIX. 669 extinguished in the inheritance of the same premises, and to the intent and in confidence the said W S tothein- shall and do grant a new lease of the same premises, pur- new lease suant to the aforesaid order. - Santed. In witness, &c. Sealed and delivered ) in presence of / NO. XXX. A Surrender hy way of Merger, Indorsed. To all to whom these presents shall come, the within- named A. B., executor of the last will and testament of B., parties, his late wife deceased, which "said B. was formerly the wife and afterwards the widow and sole executrix named in the last will and testament of the within-named C. C, and D. D., and E. his wife, send greeting. Whereas the said D. D., and E. his wife, have agreed to Recites the pay off and discharge the principal and interest due, and to ^^^^^^ ^^ grow due to the said A. B., as executor, as aforesaid, on dered. the within written indenture, and the term of years in the premises herein comprised, is intended shortly to be assigned and transferred unto the said D. D., and E. his wife, or unto such person and persons, for such intents and purposes as he, the said D. D., and E. his wife, shall direct and appoint ; but previous thereto the said D. D., and E. his wife, are desirous of having the within-mentioned premises, and the within-mentioned term of years, assigned and surrendered to them, in order to merge the same in the freehold and inheritance of the same pre- mises, and for that purpose have applied to the said A. B., who hath agreed to assign and surrender the same ac- cordingly. Now these presents witness, that in pursuance of such Surrender agreement, and for and in consideration of the sum of five t^at'i't^'ay shillings, to the said A. B. in hand well and truly paid by^^^^S^- the said D. D.,- and E. his wife, (the receipt whereof is hereby acknowledged,) he, the said A. B., hath granted, surrendered, and yielded up, and doth hereby, &c., unto 670 APPENDIX. the said D. D., and E. his wife, her heirs, and assigns, all, 6z;c., and premises comprised in the' within written inden- ture, and therein mentioned to be hereby assigned to the said A. B., with their appurtenances, and all the estate, interest, use, trust, property, claim, and demand whatso- ever, either in law or in equity, of him, the said A. B., of, into, or out of the said hereditaments and premises, and to the said term of years, to the intent that the said term of years may be merged and extinguished in the freehold and inheritance of the hereditaments and premises hereby surrendered or mentioned, or intended so to be, and the remainder now to come and unexpired of such term of years, of and in the premises assigned to the said A. B., may merge, and become determined, and utterly extinguished in the reversion, fee-simple, and inheritance of the same premises. [Add a covenant from A. B. that he hath not incumbered.'\ NO. XXXI. A Surrender of a Term, {Part of the Leased Premises having been destroyed hy Fire,) Indorsed on the Lease, Whereas the within mentioned messuage or tenement hath been lately burnt down and destroyed by lire, and the within named A. hath requested the within named B. and C. to surrender to him, the said A., the site or parcel of ground whereon the said messuage or tenement lately stood, for all the residue and remainder of the said term of years, by the said within wrhten indenture granted therein, now to come and unexpired, to the intent that the same residue may merge and be extinguished in the estate and interest of him, the said A., in the same premises respectively, which they, the said B. and C, have con- sented and agreed to do ; now these presents witness, that in compliance with the said request of the said A., and also for and in consideration of five shillings, to the said B. and C. paid by the said A., (the receipt, &c.,) they, the said B. and C. have surrendered and yielded up, and by these presents do, &c., unto the said A., his executors, APPENDIX. 671 administrators, and assigns, all that the said site, &c., and all the estate, &c. ; to have and to hold the said site, &c., and all and singular other the premises hereby surrendered and yielded up, or intended so to be, with their and every of their appurtenance, unto the said A., his executors, administrators, and assigns, from henceforth, for and during all the rest, residue, and remainder of the said term of years, by the said vi'ithin vi^ritten indenture granted therein, now to come and unexpired, to the intent and pur- pose that the same residue may merge and be extinguished in the estate and interest of him, the said A., in the said premises respectively. In witness, &c. NO. XXXII. SUMMARY PEOCEEDINGS TO EECOVEE POSSESSION OE LAND. I. IN CASE THE TENANT HOLDS OVER. 1. Oath of Holding over. City of New Yoke, ss. — A. B., of said city, merchant, being duly sworn, doth depose and say, that on or about the first day of February, A. D. 1852, the deponent rented unto C. D., of the said city, stationer, the house and lot known as number , in Street, in said city, for the term of one year from the first day of May then next, which said term has expired, and that the said C. D. or his assigns holds over and continues in possession of said pre- mises, without the permission of this deponent. A. B. Sworn before me, this second day of May, 1852. O. P., Commissioner of Deeds. 2. Summons to remove. To C. D., of the city of New York, stationer, or any other person claiming possession of the premises herein- after mentioned. Whereas A. B., of said city, merchant, has made oath, and presented the same to me, that on or about the first 672 APPENDIX. day of February, 1852, he rented unto you, the said C. D., the house and lot known as number , in Street, in the said city of New York, for the term of one year from the first day of May then next ensuing, and that you or your assigns hold over and continue in possession of the said premises, after the expiration of your term therein, without the permission of the landlord : Therefore, in the name of the People of the State of New York, you are hereby summoned and required forthwith to remove from the said premises, or show cause before me, at my cham bers, in the City Hall of the said city, this day, at three o'clock in the afternoon, why possession of the said pre- mises should not be delivered to the landlord. Witness my hand, the second day of May, 1852, M. U., First Judge of the New York Court of Common Pleas. 3. Affidavit of service of Summons. CiTT AND County of New Yoek, ss. — J. T., of said city, being sworn, says, that on the day of in- stant he personally served the within summons upon C. D., the tenant therein named, by delivering a true copy thereof to him in person, and at the same time showing him the said original summons. Sworn this day ) ^ „ , 1844, before me, ) •'•■'• 4. Warrant to put in Possession. To any one of the Constables or Marshals of the City of New York, greeting. Whereas A. B., of the city of New York, has made oath, and presented the same to me, that on or about the first day of February, A. D., 1844, he rented unto C. D., of said city, stationer, the house and lot known as number ) in Street, in said city, for the term of one year from the first day of May then next, and that he or his assigns hold over and continue in possession of the same, after the expiration of his term therein, without the permis- sion of the landlord : Whereupon I issued a summons, requiring the said tenant forthwith to remove from the said APPENDIX. 673 premises, or show cause before me, at a certain time now past, why the possession of the said premises should not be delivered to the landlord ; and no sufficient cause hav- ing been shown to the contrary, and I being satisfied by due proof of the service of the said summons, do therefore, in the name of the People of the State of New York, com- mand you to remove all persons from the said premises, and put the landlord in full possession thereof. Witness my hand, the second day of May, 1852. M. U., First Judge of New York Court of Common Picas. II. IN CASE OP A TENANCY AT WILL. 1. Notice to remove. ToC. D., of . You are hereby required to remove from and quit the premises which you hold of me, situate in the village of , in the county of , within one month after service of this notice. Dated the day of , in the year . Yours, &,c., A. B. 2. Affidavit to he made hy the Landlord. City and County of New York, ss. — A. B. of , in said city, being sworn, saith, that since the day of , in the year , C. D., of the same place, has held and occupied the house and lot in the of , on Street, where the said C. D. now resides, as the tenant of this deponent, and at his will, and without any certain time agreed on for the termination of said tenancy. And this deponent caused a notice in writing to be served on the said C. D., in due form of law, on the day of last, requiring him to remove from said premises within one month from the day of service thereof. And this deponent further saith, that the said time hath expired, and that the said C. D. or his assigns hold over, and continue in possession of the said premises after the expiration of said time, without the permission of this depo- nent. A. B. ' Sworn and subscribed, this ) day of , before me. ) 57 674 APPENDIX. 3. Summons thereon to the Tenant, to remove or show cause. ToC. D., of . Whereas A. B. has made oath, in writing, and presented the same to me, that since the day of , in the year , you have held and occupied the house and lot in the of , in Street, where you now reside as his tenant, and at his will, without any certain time agreed on for the termination of said tenancy. And that he caused a notice, in writing, to be served on you in due form of law, on the day of last, requiring you to remove from said premises within one month from the day of the service thereof And that the said time hath expired, but that you or your assigns hold over, and con- tinue in possession of said premises after the expiration of said time, without the permission of the said landlord. Therefore, in the name of the People of the State of New York, you are hereby summoned and required forth- with to remove from the said premises, or show cause before me, at my office, in the town of , in said county, on the day of instant, why possession of the said premises should not be delivered to the said landlord. Given under my hand the day of , in the year . 4. Warrant to remove the Tenant. To any of the Constables or Marshals of the City and County of New York, greeting. Whereas A. B. has made oath', in writing, and presented the same to me, that since the day of , in the year , C. D., of , has held and occupied the house and lot in the of , in Street, where he now resides, as his tenant and at his will, without any certain time agreed on for the termination of said tenancy. And that he caused a notice, in writing, to be served on him, the said tenant, in due form of law, on the day of last, requiring him to remove from said premises within one month from the day of the service thereof And that the said time hath expired, but that the said APPENDIX. 675 tenant or his assigns hold over, and continue in possession of said premises after the expiration of said time, without the permission of said landlord. Whereupon I issued a summons, requiring the tenant to remove from said pre- mises or show cause before me, at a certain time now past, why the landlord should not be put in possession of said premises ; and due proof of the service of said summons having been made to me, and no good cause against the said landlord's application having been shown, or any way appearing, therefore the People of the State of New York command you to remove all ■ persons from the said pre- mises, and put the said A. B. into the full possession thereof In witness whereof I have subscribed these presents, this day of , in the year . III. IN CASE OF DEFAULT IN PAYMENT OF KENT. 1. Affidavit of Landlord. State of New York, City and Coitnty of New York, ss. — A. B., of said city, agent of E. F., being duly sworn, says that C. D., of said city, shipmaster, is justly indebted unto E. F., of said city, merchant, in the sum of one, hun- dred dollars, due the first day of May, 1852, for rent of the house and lot known as number , in Broadway, in said city ; that he has demanded the said rent from the said C. D., who has made default in the payment thereof, pursuant to the agreement under which the premises were let, and that he holds over and continues in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid, and that satisfaction of the said rent cannot be obtained by distress of any goods. A. B. Sworn before me, this second day of May, 1852. O. P., Commissioner of Deeds. 2. The Summons. To C. D., and each and every person in possession of the demised premises hereinafter mentioned, or claiming posses- sion thereof. Whereas A. B., of the city of New York, agent of E. F., 676 APPENDIX. has made oath that you are justly indebted unto the said E. F. in the sum of one hundred dollars, due the first day of May, 1840, for rent of the house and lot known as num- ber , in Broadway, in said city ; that he has demanded from you the said rent, and that default has been made in the payment thereof, pursuant to the agreement under which the premises were let ; and that you hold over and continue in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid, and that satisfaction of the said rent cannot be obtained by distress of any goods. Therefore you, and each of you, are hereby summoned and required forthwith to remove from the said premises, or show cause before me, at my chambers, in the City Hall of the city of New York, this day of , at three o'clock in the after- noon, why the possession of the said premises should not be delivered to the said E. F. * Witness my hand, this second day of May, one thousand eight hundred and fifty-two. M. U., First Judge, SfC. 3. Affidavit of Service. City of New York, ss. — A. B., of the said city, being duly sworn, says that he did, on this second day of May instant, personally serve the above summons on C. D., the tenant residing on the demised premises number , in Broadway, in said city, by delivering to him a true copy thereof, at the same time showing the original. A. B. Sworn before me, this second day of May, 1852. M. U., &c. 4. Warrant to put in Possession. To any Constable or Marshal of the City of New York, greeting. Whereas A. B., of said city, agent of E. F., hath made oath that C. D. is justly indebted unto the said E. F. in the sum of one hundred dollars, for rent of the house and lot known as number , in Broadway, in said city ; that he demanded the said rent from the said C. D., who hath made default in the payment thereof, pursuant to the agree- ment under which the premises were let, and that he holds APPENDIX. 677 over and continues in possession of the same, without the permission of the landlord, after default in the payment of the rent as aforesaid, and that satisfaction of the said rent could not be obtained by distress of any goods. Where- upon I issued a summons, requiring the tenant and each and every person in possession of the said premises, or claiming the possession thereof, forthwith to remove from the said premises, or show cause before me, at a certain time now pa,st, why the possession of the premises should not be delivered to the said landlord ; and no good cause having been shown, or any way appearing to the contrary, and due proof of the service of such summons having been made to me, you are commanded to remove all persons from the said premises, and put the said E. F. into the full possession thereof. In witness whereof I have subscribed these presents, this second day of May, one thousand eight hundred and fifty- two. M. U., First Judge of the New York Court of Common Pleas. 5. Return. Pursuant to the command of the above warrant, I have this day put the landlord into the full possession of the pre- mises therein mentioned. Dated this second day of May, 1852 B. E., &c. 57' INDEX. A. ABATEMENT of nuisance no previous demand necessary of rent, by failure of landlord's agreement ABATOR, who is .... ACCEPTANCE of rent creates a tenancy when a waiver of notice to quit of forfeiture . of assignee by landlord, when it discharges the lessee ACCIDENTj does not suspend rent when lessee liable to repair, in case of ACCIDENTAL FIRE, tenant not liable for . ACKNOWLEDGMENT of lease, when necessary by married woman . ACTION, for injuries to the inheritance against sheriff, for not retaining rent for double rent of debt for rent for use and occupation in equity for rent . of covenant . . for waste of ejectment . to recover possession for irregular or excessive distress of replevin for trespass ADMINISTRATOR — See Executor. ADVERTISING premises for sale, no breach of covenant not assign .... by landlord, no disgolution of tenancy AFFIDAVIT to authorize distress . to claim rent of execution creditor . for summary proceedings to Section 208 309 388 64 60 485 497 438 372 357 196 171 113 173 603 530 615 635 656 661 686 698 718 729 739 764 406 473 579 699 721 680 INDEX. AGENT, leases by , form of execution by cannot take lease notice to quit given by when must have previous authority AGREEMENT for lease, what for more than a year to be in writing when part performance sufficient when enforced in equity . how it differs from a present demise what it should contain if void, still fixes amount of rent ALIEN may take a lease cannot make a lease ALTERATION OF LEASE, effect of . AMBIGUITY, construed in favor of lessee ANIMALS, must be kept within inclosure waste in respect of . when distrainable APPAREL, cannot be distrained APPORTIONMENT of rent, when when not APPRAISEMENT, when to be made . APPURTENANCES, what are . ASSESSMENT, covenant to pay (See Taxes.) ASSIGN, covenant not to what is a breach of depositing lease as security, no breach . when restricted to particular person by operation of law, no breach of covenant except otherwise agreed . discharged by license, though partial unless it be stipulated to the contrary when not discharged ASSIGNMENT, how it differs from an underlease in fact to be in writing requisites of . transfer of an equitable interest does not amount to cannot be under an older title what interests may be assigned what are understood to be usual covenants in in law, what constitutes when by marriage . , devise executorship sale under execution INDEX. 681 ASSIGNEE, nature of his title bound only by covenants running with the land of the reversion, entitled to the benefit of lessee's covenants his title complete, without an attornment bound only to the extent of premises in his possession . when chargeable pro tanto '. not chargeable on mere collateral covenants . may have the benefit of all covenants running with the land of reversion, entitled to rents unless reserved by assignor . no privity, between him and under-tenant not liable on lessee's covenants liable only during occupation actual entry by, unnecessary . but must accept the assignment discharged from further liability, by assigning over even if assignment be nominal mortgagee not liable as assignee in bankruptcy, when liable must elect in reasonable time . executor chargeable as assignee but may discharge himself by assignment liability of heir as assignee ASSUMPSIT, for use and occupation (See Use and Occupation.) ASSURANCE, covenant for further what constitutes breach of . . . when new lease to be executed ATTORNEY, execution of lease by . ATTORNMENT by tenant unnecessary AVOWRY AND COGNIZANCE (See Replevin.) AWAY-GOING CROP, when tenant entitled to Section 436 437 438 439 440 443 444 445 446 447 448 448 449 450 451 452 453 455 456 458 459 461 462 635 323 324 326 139 439 755 543 B. BANKRUPTCY forfeits covenant of renewal bars suit for specific performance effect of, on accruing rent does not discharge covenant to pay rent BARON AND FEME — (See Husband and Wife.) BLIND PERSON, lease by . BOARDERS, property of, not distrainable BOND taken for rent no satisfaction of rent BOUNDARIES, specified and artificial BOUNDARY TREES may be lopped . 337 47 456 457 98 595 565 163 190 682 INDEX. BREACH of agreement, when a bar to a specific performance BUILD after certain pattern, covenant to . BUILDINGS, right of support from adjacent . Section 47 415 233 C. CANCELLING a lease is not a surrrender CARRIER, goods in his possession not distrainable CATTLE, when not distrainable CHATTELS may be leased COMMENCEMENT of lease, when what evidence of lease void for uncertainty in on a future event COMMITTEE of lunatic, leases by COMMONS, what is cannot be apportioned CONTINUANCE of lease, when optional in the city of New York . first day excluded when lease void for uncertainty in when agent exceeds his power CONDITION, in law and by deed differs from a limitation what implied, in the relation of landlord and tenant when precedent or subsequent by what words created implied in a proviso . when to be annexed impossible illegal repugnant .... effect of license on forfeiture of, how waived defeasible by actual entry when it renders a lease void or voidable . substantial performance of, sufficient of reentry on breach of will run with the land who may take advantage of when demand' necessary . no actual entry required no reentry, unless expressly reserved whether sufficient distress on premises or not effect of reentry clause when mortgagee may redeem . lessee entering avoids all incumbrances 511 519 597 18 68 69 70 73 136 218 220 81 77 78 75 83 271 273 274 275 278 279 280 281 283 284 286 287 288 288 289 290 294 295 297 298 300 301 303 303 303 INDEX, 683 CONFIRMATION of lease by infant of husband's lease by wife CONSIDERATION, a sufficient one must appear CONSTRUCTION of covenants, rules for CORN, distrainable COUNTERPART of lease, what COVENANT, action of, when it lies when by assignee of the reversion . for unliquidated damages when by an heir or executor how far assignee liable to in whose name to be brought by one interested in deed-poll, though not named against whom it lies what declaration should contain practice, when covenant under penalty assignment of breaches general issue in plea of eviction statement of paramount title apportionment of rent in assignment before breach . payment, must be involuntary what cannot be set off plea of non damnificatus relief in equity . COVENANTS, what are usual between lessor and lessee assignor and assignee advantage of, under a penalty . what are when express by what words . may be in any part of the deed may be in form of an exception recital . proviso the word agreed, essential rules of construction when implied may be qualified distinctions between express and implied covenants importance of these distinctions none implied in New York how they arise under a deed-poll lessee not bound unless he signs when they run with the land all implied, run with the land . Section 94 103 153 164, note 592 146 661 662 663 666 665 664 665 668 670 671 673 676 677 678 979 680 68 1' 682 683 684 45 431 671 245 246 247 247 248 249 250 250 251 252 253 254 256 257 258 259 260 262 684 INDEX. COVENANTS — (Continued.) are divisible when void, or illegal discharged, or suspended by tearing off seals joint, or several personal dependent implied, to receive a liberal construction on the part of the lessor . (See Quiet Enjoyment, Incumbkances, Further Assurance, Repair, Renewal, Taxes.) on the part of the lessee .... (See Repair, Rent, Taxes, Insure, Assignment, Residence, Trades, Cultivation, Fixtures.) CULTIVATION, covenant for particular modes of . how far sustained in equity .... CURTESY, tenant by the . CUSTOM, how far to regulate an agreement . Section 263 266 269 290 264 263 265 256 304 219 420 422 101 500 D. DATE of lease how far immaterial . . . 148 DEAF PERSON, lease by .... 98 DEBT for rent, action of , . . . 615 is the proper remedy against assignee of a term . 616 or against a lessee who enters tortiously . 617 when for use and occupation generally . . 618 lies against tenant for life, years, or at will . 619 although he may have assigned . . 620 not against lessee, after acceptance of rent from assignee 621 against assignee, only concurrently with his interest 621 against tenant by sufferance, for double rent holding over after notice deed need not be declared on or mesne assignments set out unless in suit by assignee of the reversion when local, or transitory how laid against an executor special pleas in when set-off not allowed . unless by way of payment when mortgagee may maintain plea of tender in DEED, when required for a demise (See Indenture.) 622 623 624 624 624 625 626 627 631 631 632 633 146 INDEX. 685 BEET) — {Continued.) poll, action on when term commences on delivery of DELIVERY of deed, what constitutes when in escrow DEMAND of rent, when and how made DEMISE, what property the subject of when by implication by express agreement . to be in writing by possession under seal how it differs from an agreement possession necessary to . when by a disseizor infant married woraaii joint tenants tenant for years mortgagor and mortgagee corporations agents and attorneys executors and guardians aliens •. DENIZEN may make leases DESCRIPTION of premises . DESTRUCTION of premises avoids the lease DETERMINATION of tenancy, by lapse of time notice to quit forfeiture merger . surrender taking premises for public use destruction of building becoming house of ill fame DEVISEE, when bound by lessor's covenants entitled to the benefit of covenants DISSOLUTION of tenancy, various modes of consequences of . DISCLAIMER by tenant, forfeits his term DISSEISIN, what DISTRESS for rent, history and policy of nature of the remedy in what States it prevails incident to every species of rent amount of rent must be fixed with certainty lies only upon an actual demise 58 686 INDEX. DISTRESS — ( Continued.) right not extinguished by judgment for rent no previous demand necessary in whose name to be made when by assignee of reversion joint tenants after removal of goods from premises . such removal must be fraudulent . and not after a bond fide sale or mortgage mortgagee may distrain at common law otherwise in New York at what time may be made not after a tender . separate distresses, on several demises in what place may be taken . how entry on the premises to be made by whom conducted affidavit to be made landlord's warrant for what amount of rent . cannot include interest inventory to be taken what goods distrainable goods not the properly of the tenant * exempt by statute privileged conditionally which cannot be identified privileged for the benefit of trade on deposit . . . ' with a common carrier things fera natures . fixtures goods sold, but remaining on the premises in custody of the law a receiver things in actual use wearing apparel goods of boarders at hotels public ambassadors . cattle of stranger on premises goods taken in execution notice of affidavit to sheriff in this case sheriff to retain a year's rent thereon how far the lien extends not as against an under-tenant officer's liability in this case how to be proceeded against . Section INDEX. 687 DISTRESS — ( Continued.) proceedings, if tenant denies rent to be due how goods to be disposed of . cattle to be impounded . notice to tenant pound-breach and rescue cannot be used liability, if distress be injured appraisement and sale of goods fraudulent removal of goods search warrant for . liability for irregular distress wrongful distress . not liable for trespass, ab initio DISTURBANCE, what amounts to must be of a substantial character . DIVISION fences (See Pak'ty-Walls.) when may be removed . trees growing in DOG, vicious, on premises DOUBLE rent, tenant holding over liable for demand and notice necessary when notice to be given waived consequence of notice given by tenant verbal notice by tenant sufficient DRUNKARD, lease by, void DUMB PERSON, lease by . DURATION of lease, how ascertained DURESS, lease under Section E. EASEMENTS, what attached to tenancy how created extinguished . ; when by prescription EJECTMENT, when by lessor against whom, and for what property when notice to quit must be given . by mortgagee how premises to be described landlord need not show title . proof of lease necessary . 688 INDES. EJECTMENT — (Continued.) if lessor's interest has expired relief against .... action for mesne profits against whom, for such profits (See Summary Proceedings.) EMBLEMENTS, who entitled to . when lease terminated by act of law none, if termination of lease is certain , when under-tenant entitled to in favor of trade no compensation for ploughing tenant for years not entitled to except by custom out-going tenant entitled to ENTRY, necessity of, by lessee right of . EQUITY, will restrain breach of covenant prevent waste grant specific performance . when refuse to direct renewal . relief, in case of forfeiture suit in, for rent EQUITABLE mortgagee, not liable for covenants ESTATE for life, how created must commence in priEsenti for years, may commence in futuro ESTOPPEL, lease by must be reciprocal . who bound by . when by matter in pais ESTOVERS, what may be taken who entitled to EVICTION suspends rent even out of part, if by lessor not by neglect of landlord to perform agreement if partial by stranger, rent apportioned . by nuisance erected by landlord though not continued, suspends rent EXCEPTIONS and reservations in a lease EXCESSIVE distress, action for . EXECUTION, term may be sold under . how it affects the right of distress of a lease, what when it takes effect . in escrow complete without witness 707 708 710 711 534 535 535 536 536 537 538 540 542 68, 176 291 685 690 46 337 495 656 428 51 52 68 87 90 91 93 220 221 378 379 374 378 380 383 157 729 176 600 166 167 169 170 INDEX. 689 Section EXECUTOR and administrator, leases by . 133 when he takes a term of years ■ 434 how far chargeable with rent • 459 when he may waive lease . .461 what covenants entitled to 460 when entitled to rent . . 390 emblements . • 536 distrain . . . 570 of lessee, what covenants entitled to 459 bound by . 460 when liable for waste by testator . 689 EXPIRATION of tenancy, tenant's duties on . 524 his right on . 533 EXPRESS tenancy, what . . .26 EXTINGUISHMENT of easements 239 F. FACTOR, goods of his principal not distrainable 587 FEME COVERT, leases by . . . 101 (See Married Woman.) FENCES, division ... .183 FIRE, lessor not liable to rebuild in case of . • 329 lessee not liable to rebuild . • 343 except under covenant to repair 357 no suspension of rent . ■ 375 FISHERY, common of, may be leased . 17 what is . . • 221 confined to fresh water . 222 none in navigable stream . . 223 FIXTURES, covenant to redeliver . 424 what removable by tenant 544 trade fixtures . . . 545 extends to houses .... 546 gardeners and nurserymen . 546 domestic fixtures and ornaments . . 547 agricultural, not removable . • 548 mere personal chattels, not fixtures . . . 548 may be mortgaged . . . 549 regulated by local customs . . 549 can only be removed before the end of the term . 550 freehold must not be injured by removal . . 551 when tenant's right to not abandoned . 552 landlord entitled to . . . 553 not distrainable . . . • 592 FORCIBLE entry and detainer, what ... 786 58* 690 INBEX. Section FORCIBLE ENTRY — (Continued.) to whom complaint to be made . . 789 how made . . . 790 proceedings therein . 791 title not to be questioned . 792 award of restitution . . . 793 indictment for . . . 794 FORFEITURE, what amounts to . . .489 in case of waste . . 490 distinction between void and voidable leases 491 voidable only at the election of lessor . 492 when for non-payment of rent . 493 what amounts to a waiver . . • 497 no waiver, if cause of forfeiture continues 500 reentry for subsequent breach . • 501 wlten demand of rent necessary 494 relief from, in case of non-payment . . 495 not for breach of any other covenant . 496 nor for a wilful neglect . . 496 FRAUDS, what demises within statute of . .28 lease obtained by, void ... 98 all assignments within statute . . 427 FRAUDULENT removal of goods . 611 FROM THE DAY of the date " 78 FURNITURE may be leased . . 18 FURTHER assurance, covenant for . . 323 extends only to reasonable acts . 325 when deed to be executed . . 326 what constitutes breach of 324 FUTURE interest, lease of . 85 G. GARDEN, passes with lease of house . 161 GARDENERS, when tenants, may remove trees, &c. . . 546 GRANT, what passes under . . 161 GRANTEE of the reversion, rights of . . 439 can sue for breach in his time only . . 445 ■GUARDIAN, leases by . . ' 135 H. HEIR of lessor, what covenants bound by . . 462 descend to 463 INDEX. 691 Section JiElR — (Continued.) of lessee, what covenants bound hy 462 descend to 463 HOLDING OVER, after notice fronn landlord 524 what notice required 526 to whom given . 527 when to be given 528 after notice by tenant .'' 529 when landlord may reenter 531 liability for special damages 530 of trustees and guardians 530 how far justifiable 533 HUSBAND and wife, leases by 101 when voidable at common law 102 not in the United States 103 must be by deed 103 HUSBANDRY, good, what requisite to 541 I. IDIOTS, leases by . IMPLIED tenancy, when . covenant, what IMPOUNDING cattle INDEMNITY, when -under-tenant entitled to- INDENTURE, formal parts of differs from deed-poll date of . names of parties recitals in . . reservation of rent in exceptions words of demise description of premises . . INDORSEMENT, when part of deed INDORSEMENTS on lease, effect of INCUMBRANCES, covenant against . tenant for life, bound to keep down outstanding claim, a breach to what acts it extends prior mortgage, a breach before eviction the rule of damages . INDICTMENT, for forcible entry or detainer INFANT, leases by, voidable only . ratification of . leases to . . 97 19 257 605 110 146 147 148 149 150 152 157 159 160 164 164 318 318 319 319 320 322 , 794 93 94 96 692 INDEX. INJUNCTION against waste . INSANE PERSONS, leases by . INSOLVENCY, when forfeiture of lease INSURE, covenant to what a breach of INTEREST, when payable on rent cannot be distrained for . INTERESSE TERMINI, nature of INTOXICATION, lease by person under INTRUDER, lease by . INVENTORY, taken on a distress IRREGULARITY in distraining, effect of Section 691 97 337 400 401 391 581 15,73 100 84 609 614 JOINT TENANTS, leases by 114 L. LACHES, in applying for renewal . LAPSE of time, termination of lease by . LANDLORD, his general rights during tenancy how far his liabilities suspended may sue for injuries to reversion or for disturbance of his tenant not for trespass, while tenant in possession prejudiced by tenant's acts or for nuisance created by tenant LANDLORD AND TENANT, how relation established LEASE, history and origin of who may make when to be in writing by estoppel deed a mere license need not be written when void for uncertainty reservation of rent in execution of when to be witnessed recorded what amounts to a present lease only an agreement for . when it commences for years, may commence in futuro how determined when for life 339 465 173 175 173 173 174 175 175 14 10 84 31 87 146 31 70 159 166 170 171 39 42 68 54 464 51 INDEX. 693 LESSOR, his interest after assignment . cannot sue under-tenant LESSEE liable on express covenants, after assignment may sue assignee of the reversion entitled to indemnity from assignee LETTER of attorney {See Attoeney.) LICENSE to assign, discharges covenant though for part only may be restrained to enter on land, need not be written LIEN for expenditures, by lessee LIFE, tenant for entitled to emblements . must keep down charges LIGHTS, ancient, right to, how extinguished LIMITATION of estate, what LIQUIDATED damages, differs from penalty LIVERY of seisin LODGERS, their privileges and liabilities LODGINGS, agreement to occupy . LUNATIC, leases by Section 447 448 438 441 448 137 410 410 411 31 533 51 534 318 239 272 673 68 67, 161 66 97 M. MANURE, when it may be taken from farm . MARRIAGE brokage, vitiates lease is an assignment of a wife's term MARRIED WOMAN, leases by cannot be lessee (See Feme Covert.) MERGER, what, and when it determines a tenancy MESNE PROFITS, action for . . ' MESSUAGE, what . MILL-SITE, how right to, extinguished MORTGAGOR, leases by should join mortgagee in making lease . MORTGAGEE, when entitled to emblements when may have rents may redeem from forfeiture not liable as assignee 541 153 432 101 105 502 710 161 240 US 125 537 123 303 455 N. NAMES of parties 119 694 INDEX. Section NEGLIGENCE, tenant liable for negligent use of fire . . 1B6 in removal of party walls . 197 not, if injury caused by wrongdoer . . 190 in removal of adjoining soil and buildings . . 231 NOTE, when taking of, does not extinguish rent . 565,638,681 NOTICE to quit, when necessary . . . 468 when tenant holds under agreement to purchase . . 469 unnecessary, if no tenancy exists . . 471 or if no privity exists between the parties . . 472 or if a day is fixed for terminating the lease . . 472 by tenant, unnecessary if landlord accepts the key . 473 otherwise, if landlord undertakes to rent premises 473 mortgagor, when entitled to . . . 474 what required . . . ■ • 475 when to expire . ... 476 irregularity of, how waived . 477 effect of . . . • .478 by whom given . . . 479 to whom to be given . . . 481 when to be in writing . 482 mistake in, immaterial . 483 how to be served . . 484 waived ..... 485 effect of a subsequent notice . 486 examples of waiver . . 487 NUISANCE, what amounts to . . . 201 not a mere inconvenience . . 203 nor for the reasonable use of a right 204 injury need not be consummated . . 205 continuance of, who responsible for . 206 when legalized by long use . . . 207 right to abate . . . 208 remedies for . . .- 209 when it excuses payment of rent . . 381 O. OBSTRUCTION in the streets OCCUPATION, tenant's liability for effect of, in the absence of any agreement OCCUPANT, when liable for taxes, &c. OLD MAN, lease by . . ORNAMENTAL timber, waste in OUT-GOING tenant, right to remove chattels emblements . may retain possession, on agreement to pay for crops 193 635 19 395 99 352 533 542 533 INDEX. 695 p. Sectinn PAROL demise, when good . 27 PARTIES to a lease . . . . 84 infants ; . 93 _ persons of unsound mind , . . .97 married women . . . . 101 tenant for years . . . lOS joint tenants . , . . . 114 mortgagor and mortgagee . . .118 corporations .... 126 trustees . . . . .130 executors . . . . 133 guardians ... . 135 committees and receivers 136 agents ..... 137 aliens and denizens . . . I43 PARTITION FENCES, obligation to maintain . • 367 each occupant bound to contribute . . 367 PARTY WALL, what evidence of ownership 188 obligation to rebuild . . . . <• 139 PAYMENT of rent, evidence of tenancy . . .22 how far, by giving note or bond . . . 565, 638 at what time due ..... 391 how payable . •. . . 392 when with interest . . 391 in specific articles . . . 393 PARTNERS, leases by ... .117 PART performance, effect of . , 32 PATROON, in New York, what . . 12, note PERPETUAL renewal . . '332 {See Renewal.) POLL DEED . . . . . .146 (See Indentuee.) POSSESSION, when tenant bound to yield . . 534 necessary to make a lease . • . 85 when it follows ownership ... §6 proceedings to recover . . 713 how far tenant may hold over . 533 POUND breach and rescue, action for . . 606 POWER of attorney, lease under . . . 137 how to be stated in conclusion of lease . . .141 PREMISES, how described ... I61 how identified ..... 154 PRESCRIPTION, regulates division fence . I85 use of running water . . 227 length of time necessary to establish . . 243 696 INDEX. PRIVITY of contract and estate how determined by assignment none between lessor and under-tenant PROSTITUTION, lease for purpose of, void PROVISO, what constitutes (See Condition.) PUBLIC USE, premises taken for, entitles to compensation when it dissolves tenancy Section 436 437 448 531 279 181 519 Q. QUIET ENJOYMENT, covenant for to whose acts it extends against what acts for whose benefit upon lawful eviction only what constitutes a breach by one having paramount title not by a mere trespasser no/for a mere personal wrong but by eviction under elder title by eviction from any material part . when adverse holding constitutes breach by landlord's immoral conduct rule of damages on QUIT, notice to (See Notice to Quit.) 304 305 306 307 308 309 310 311 313 314 315 315 316 317 463 R. RASURE of deed, no surrender RECEIVER, leases by when bound to pay rent RECITALS in lease, error immaterial RECOUPMENT against demand for rent RE-ENTRY, to whom reserved advantages of this clause when to assignee of reversion not to assignee of part of the reversion when previous demand necessary . demand of rent dispensed with effect of this clause {See Condition.) RECORDING lease, when necessary actual notice, equivalent to 511 136 458 150 374 293 291 295 296 297 300 302 171 171 INDEX. 697 RELEASE, by way of enlargement of estate REMOVAL of buildings . duty of adjoining occupant upon RENEWAL of lease, covenant for . continued renewals specific performance of, when ordered in case of church leases . when not decreed a voluntary engagement not enforced nor if lessee guilty of laches . what amounts to negligence in applying concurrence of under-lessee unnecessary RENT, different species of . payable without any express agreement . in arrear, not assignable . otherwise, if to grow due . advantage of express covenant for . covenant to pay, runs with the land binding upon the occupant lessee not relieved from, by casualty may recoup damages for not repairing has no relief against his express covenants ought to provide against casualty general rule of law on this subject to whom reserved and payable follows the reversion penalty of double rent when lessee excused from, in general suspended by eviction by erection of nuisance . covenant for void, if lease void when apportioned or suspended not on assignment by lessee how apportioned by act of law where tenant's interest extinguished how affected by surrender extinguished, though eviction not continued . no abatement for portional part of the term except on the death of a tenant for life abatement, where landlord fails in his agreement covenant to pay binding, even in case of fire . or tenant evicted by foreign enemy landlord's mere trespass no discharge when payable to executor destruction by fire no excuse when lessor will be enjoined from collecting in case of opening a street 59 698 INDEX. B.ENT — {Continued.) at what time it becomes due where to be paid how to be paid accruing subsequent to discharge in bankruptcy REPAIRS, lessor not liable for even in case of fire, and he receives the insurance otherwise, in Louisiana exception of casualties in the lease . under covenant, lessor must reinstate the premises what lessee liable to make as to farming leases . bound to prevent waste (See Waste.) tenant not liable for, in case of accidental fire covenant for, by lessee natural and unavoidable decay, no breach what constitutes a breach accident no excuse . when action lies before expiration of the term a reasonable time to be allowed for tenant holding over, still liable to make even if lease void not excused from covenant in case of fire nor limited by amount agreed to be insured as to party walls discharged by eviction how far cotenant bound . rule of damages REPLEVIN, action of, when it lies liability of sherifi^, for taking insufficient security what amounts to breach of bond how writ to be executed proceedings on claim of property for what the action lies by whom it may be brought against whom it lies venue in, when local as to the declaration pleas in bar avowry at common lav? how altered by statute to be made pleas to an avowry judgment in execution RESCUE, when it may be made INDEX. 699 RESE RVATION of rent, what in lease, what if general, follows lessor's interest . when special how distinguished from exception . RESIDENCE on premises, covenant for REVERSION, landlord's remedy for injuries to rent follows RUNNING. WATERS, right to the use of when regulated by prescription right on navigable stream Section 152 152 154 155 158 414 173 154 224 227 229 S. SET-OFF, by way of payment SEAL, when necessary form of . SHERIFF to retain a year's rent on execution not liable without notice how compelled to pay SIGNING'of lease, what sufEcient . place of, when material . SPECIFIC PERFORMANCE, when enforced when not . , necessary preliminaries to of covenant to repair STAYING proceedings for non-payment of rent STRANGER, not bound by estoppel rent cannot be reserved to cannot take advantage of condition . SUFFERANCE, tenant at SUPPORT, right of, from neighboring soil how far dependent on prescription lateral pressure not to be increased . from adjoining buildings SUMMARY PROCEEDINGS, to recover possession in case of a vacant possession where there is no sufficient distress . tenant holds over . when previous notice to be given the officer's jurisdiction statute applies only where tenancy exists . not after distraining for rent affidavit and summons how claim may be contested . warrant to put in possession 374 34 166 600 602 603 35 36 46 47 5 172 726 91 155 293 64 233 234 235 236 713 714 716 717 718 719 720 720 721 722 724 700 INDEX. SUMMARY PROCEEDmGS — {Continued.) when to be stayed . certiorari upon . when lessee may be reinstated SURRENDER, how it differs from a release ire /aci, must be in writing technical words of cannot operate in futuro cancellation no surrender . in law, what amounts to acceptance of new tenant by landlord consent of all parties necessary the new lease must pass a certain interest when lessor underlets can be made only to the reversioner original rights and remedies preserved after consent to substitute must be mutual SUSPENSION of rentj-when Section 726 737 . 728 507 509 510 513 511 512 514 515 512 516 508 518 517 378 T. TAXES and assessments, lessor's covenant to pay . . 341 tenant entitled to indemnity against . . . 342 tenant's covenant to pay . . • . 395 when to be deducted from rent . . . 396 exceptions in tenant's favor . . . 398 for public improvements .... 399 TENANCY, by implication of law . . . 19 when not to be implied . . . .20 renting a farm on shares .... 24 by express agreement . . . .26 for life, must commence in presenti ... 51 may arise by grant in general terms . . 62 for years, may commence in /aiuro . . 68 from year to year, by general occupation . . 55 payment of rent . . 56 holding over . . .57 of a mortgagor . . . . . 118 at will, by permission of owner . . .59 on payment of rent, becomes tenant from year to year 66 terminated by notice to quit . . .63 by sufferance, what has a mere naked possession . 64 on payment of rent, becomes tenant from year to year . 57 for lodgings, when to be in writing ... 66 for life, cannot commence in futuro . . .51 INDEX. 701 TENANCY — ( Continued.) for life, how created may make under-lease for years, how created from year to year when by holding over in common, what at will, what is . when it becomes from year to year how created distinguished from tenancy from determined . entitled to notice to quit TENANT, his right of egress and regress lien on buildings after the term, if to be paid right to emblements when rights and liabilities commence may maintain action of trespass liable to repair highways must preserve boundaries to give landlord notice of ejectment attornment to a stranger, void may recover for property taken by mob . liable to stranger for negligence also to under-tenant, for goods distrained for not liable for accidental fire how far liable for nuisance may not place obstruction in the street or carry on offensive trades . or keep a vicious dog by the curtesy in common, leases by for years, leases by from year to year at will, cannot underlet unless confirmed by remainder-man TENDER, how made what requisite to its validity how it affects a distress TENURES, origin of feudal .... allodial socage .... in the United States TERM, signifies the, time as well as the estate TERMINATION OF LEASE, what . how ascertained Section year to year for them rent , 702 INDEX. TERMINATION OF LEASE — (antinued.] when no time specified . left optional . if lessor exceeds his estate by lapse of time notice to quit forfeiture merger surrender when premises taken for public use by destruction of premises being turned into house of ill-fame tenant's disclaimer TIMBER, what considered to be may be cut by tenant, for repairs cut wastefully, belongs to owner of inheritance TRADE, covenant not to carry on . how far recognized in law what constitutes a breach of this covenant TREES, growing in division fence trespass for cutting in nursery ground, may be removed TRESPASS upon land, action for . when ab initio . for illegal distress . when possession by plaintiff necessary who may maintain . right of possession must be exclusive as to the nature of the injury . only for injury to corporal property nature of the property TROVER, by landlord, for trees cut down by tenant, for goods wrongfully taken . TRUSTEE, leases by Section 81 83 465 466 468 502 507 ^ 519 520 521 522 350 351 ce 354 416 417 418 490 765 , 546 764 767 768 , 770 771 772 773 . 773 774 765 739 130 u. UNDER-LEASE differs from an assignment . who may make UNDER-TENANT, no privity between him and lessor entitled to indemnity against lessor privilege as to emblements not liable to lessor, on lessee's covenants USE AND OCCUPATION, when action lies for not by lessor against under-tenant . nor after lease surrendered 16, 109 109 448 110 536 636 635 636 637 INDEX. 703 Section USE AND OCCUPATION — (Continued.) nor if let for an immoral purpose . . . 644 otherwise, if destroyed by fire . . . 645 or in an unhealthy condition . . . 646 when by assignee of reversion . . . 639 lease is by deed .... 640 action founded on occupation . . . 641 any permissive holding sufficient . . . 642 against assignee of the term . . . 643 lies, though tenant quit before the end of the term . 647 or refuses to accept the lease . . . 648 otherwise, if landlord accept a new tenant . . 648 or evicts the tenant .... 649 amount of rent fixed by the agreementj though void . 650 averments in the declaration •• . . . 651 when ejectment bars their action . . . 652 general defences .... 653 what evidence required . . . . 655 USUAL COVENANTS, what are . . . 45 USURY, vitiates lease . . . . .153 V. VOIDABLE LEASE, may be confirmed VENUE, when local or transitory . 492 635 W. WAIVER. (See Fobfeituke, Notice to Quit.) WASTE, voluntary, committed by tenant, what is . by acts tending to destruction of the premises in respect to animals buildings suffering premises to remain wasted in respect to timber whether timber or not, depends on circumstances may be cut for firewood and repairs I but not to sell .... clearing up new lands is not . timber felled belongs to lessor of the clause, without impeachment of waste in respect to cultivation . action of, by and against whom it lies . on the case for . order of a court of law to restrain 345 346 347 348 349 350 351 352 353 353 354 355 356 686 688 690 704 INDEX. WASTE — ( Continued.) remedy by bill in equity . injunction to prevent for and against whom a bill in equity lies when against tenant without impeachment of waste account will be taken on what grounds ^njunction allowed when denied . WATERCOURSE, may be leased . mode of enjoyment neglect to repair .... how right to, controlled . effect of a grant bounded on . from underground spring WAY, right of, may be leased how it arises .... when from necessity is a qualified right when to be presumed WAY-GOING CROP, when tenant entitled to WEAKNESS of mind, will not avoid lease . WILL, tenant at . WITNESSES, when necessary to lease WRITING, not necessary at common law WRONGFUL DISTRESS, action for what will support 690 691 693 694 697 695 696 17 224 226 227 228 230 17 213 214 216 217 542 98 59 170 27 729 731 Y. YEAR to year, who is tenant from what repairs tenant liable for 56 343 KP 590 12h 1852 Author Vol. Taylor, John Neilson Title Copy A Treatise on the American U&Y or lanaiord ana Lenaia — Date Borrower's Name / M K* * i 'i'lvMitii**' mm ■•}• liiiiif'i;'''" '