LANDLORDS LAW: A Treatise very fit for the Perusal of all Gentlemen and others. BEING A Collection of several Cases in the Law concerning Leases, Distresses, Replevins, Rescous, Waste, and several other matters which often happen between Landlord and Tenant, as appears in the Contents of the several Chapters. By G. Meriton, Gent. olim Clericum Cliffordiensem. Hor. — Si quid novisti rectius istis, Candidus imperti; si non, his utere me●um. LONDON, Printed for Henry Twyford, Thomas Dring, and John Place. 1665. To All Gentlemen Landlords, and other knowing Persons of this Kingdom. Worthy Sirs, HAving formerly had several Doubts and Quaere's in my mind, upon some particular Cases which oftentimes come in question betwixt Landlords and their Tenants, and being desirous to satisfy myself in those points; I thereupon made it my Study and Recreation at some spare hours to search and collect some choice Cases, (out of the Reports and other Works of several Learned and Grave Judges, and other Sages of the Law) touching the Covenants, Conditions, Grants, Prouisoes, Reservations, Exceptions, Surrenders, Assignments, and many other things concerning Leases; as also touching Distresses, Rescous, Avowries, Replevins, Waste, and other matters often coming in debate between Landlords and their Tenants, as appears in the several Chapters hereafter in this small Treatise. Which little Manual at the first undertaking was intended only for private use, and a Vade mecum for my own Pocket; but having since communicated it to some special Friends and knowing Gentlemen, they have been very importunate with me for the publishing of it; at whose requests (they being my very intimate Friends and Acquaintance) I have now adventured this small imperfect Treatise to the public view. If it find Acceptance it will be much Satisfaction to him who is, Gentlemen, Your humble Servant, GEORGE MERITON. An Alphabetical Table of the Names of the Cases vouched in this Book. A AMphurst and Palmer's Case, Pasc. 19 Jac. Rot. 2048. Hobart's Rep. f. 331. Page 66 Amnor and Loddington's Case, M. 26 & 27 Eliz. vouched in Cook's 1 part Inst. f. 351. a. 79 B BUtt's Case, 42 Eliz. in C. B. Cook's 7. lib. f. 23. 2 Bishop of Bath and Wells' Case, 3 Jac. in C. B. Co. 6. lib. fo. 34, & 35. 2, & 74 Barker and Fleetwel's Case, 29 Eliz. in B. R. Godbolt's Rep. f. 69. 13 Beverley's Case, 24 Car. Clayton's Rep. p. 111. pl. 189. 44 Browning's Case, Plo. Com. f. 136. 52 Boroughs and tailor's Case, Pasc. 38 El. in B. R. Goldsborough's Rep. f. 124. pl. 9 49, & 62 Bredon's Case, M. 39 & 40 Eliz. Co. 1. lib. f. 76. 57 Boraston's Case, 29 Eliz. Co. 3. lib. f. 19 pag. 67 Bettisworth's Case, 33 Eliz. in C. B. Co. 2. lib. f. 31. 69 Barwick's Case, in the Exchequer, Co. 5. lib. f. 93. 71, & 74 Brudenell's Case, 34 Eliz. in B. R. Co. 5. l. f. 77, & 83 Lewis Bowles' Case, 13 Jac. Co. 11. lib. f. 79. 92 Berdsley and Pilkinton's Case, Goldsborough's Rep. f. 100 98 Bagshaw and Goward's Case, Hil. 3 Jac. in B. R. Rot. 1070. Crook's Rep. 2 part, f. 147. 110 Bevil's Case, Mich. 27 and 28 Eliz. Co. 4. lib. f. 11. 111 Beaumont's Case, 10 Jac. Co. 9 lib. f. 138. 147 Bingham's Case, Co. 2. lib. fo. 92. 151 C COmpton and Allen's Case, Trin. 1649. Rot. 348. in B. R. Styles Rep. f. 162. 14 Cole and Taunton's Case, Hil. 36 Eliz. Rot. 376. Goldsborough's Rep. f. 184. pl. 122. 26 Colthirst's Case, Plo. Com. fo. 28. b. 30 Clun's Case, 11 Jac. in B. R. Co. 10. lib. fo. 227. 45, 46, and 48 Cibill and Hill's Case, M. 30 Eliz. in C. B. Leonard's Rep. f. 110. 60 Cranley and Kingswell's Case, Pasc. 15 Jac. Rot. 710. Hobart's Rep. fo. 207. 63 Cecil's Case, Dyer's Rep. 253. pag. 67 Clayton's Case, 37 Eliz. in C. B. Co. 5. lib. fo. 1. 71 Clifton's Case, 35 Eliz. Co. 5. lib. fo. 73. 149 D DEan and Chapter of Windsor's Case, M. 44 Eliz. in B. R. Co. 5. lib. f. 24. 15 Dumport's Case, Hil. 45 Eliz. in B. R. Co. 4. lib. f. 119. 20, 35 Lord Darcy and Askwith's Case, Hil. 15 Jac. Hobart's Rep. f. 234. 138 Dean and Chapter of Worcester's Case, 3 Jac. Co. 6. l. f. 37. 151 E ELlis and Chowne's Case, Hil. 44 Eliz. in C. B. Rot. 1459. vouched in Co. 1 part Inst. f. 45. 57 F FArrington's Case, Dyer's Rep. f. 67. 26, 82▪ Fulmerston's Case, Plo. Co. fo. 107. b●. 43 Foord's Case, 37 Eliz. in C. B. Co. 5. l. f. 81. 56 Sir William▪ Foster's Case, M. 6 Jac. Co. 8. l. f. 64. 123 G GReen's Case, Anno 1650. Clayton's Rep. pa. 146. pl. 265. pag. 44 Gough's Case, 4 Mar. Dyer's Rep. 141. 53. Goddard's Case, M. 34 Eliz. in C. B. Owen's Rep. f. 10. 60 Sr. Rich. Grobham and Thornborough's Case, Hil. 10 Jac. Rot. 1793. Hobart's Rep. f. 82. 64 Green's Case, 18 Eliz. Leonard's Rep. f. 262. ibid. Goddard's Case, 26 Eliz. Co. 2. l. fo. 5. 72 Gomersal and Wayt's Case, M. 8 Jac. in B. R. Crooks Rep. 2 part, fo. 255. 97 H HArding's Case, M. 30 Eliz. in B. R. Godbolt's Rep. f. 139. 27 Dame Hale's Case, Plo. Com. fo. 260. b. 33, 81 Hill and Grange's Case, Plo. Com. fo. 171. 35, 63 Humble and Oliver's Case, M. 36 Eliz. in B. R. Popham's Rep. f. 55. 42 Hare and Savil's Case, M. 7 Jac. in C. B. Brownloes Rep. 2 part, fo. 273. 45 Hopkins and Morton's Case, vouched in Pennant's Case, Co. 3. lib. fo. 53. How and Broome's Case, Hil. 43 Eliz. Goldsborough's Rep. f. 125. pl. 15. 60 Howel and Samback's Case, M. 13 Jac. Rot. 2009. Hobart's Rep. f. 133. pag. Hanson and Norcliffs Case, Hil. 18 Jac. Rot. 2861. Hobart's Rep. f. 331. 66 Harbin and Barton's Case, Goldsborough's Rep. f. 187. pl. 130. 81, 83. Henstead's Case, M. 36 & 37 Eliz. in C. B. Co. 5. l. f. 10. 84 Hunt and Downam's Case, Pasc. 16. Jac. in B. R. Crooks Rep. 2 part, fo. 478 85 Harlackenden's Case, 31 Eliz. in B. R. Co. 4. lib. fo. 31. 92, 127, 128▪ K KIdwell's Case, Plo. Com. 70. 62 Sir Henry Knivet and Pool's Case, Goldsborough's Rep. f. 143. pl. 60. 88 L LEeds and Crompton's Case, M. 28 Eliz. in C. B. vouced in Hughes' grand Abr. of the Law, 1 part, p. 428. c. 5. 20 Lutterell's Case, 43 Eliz. in B. R. Co. 4. lib. fo. 86. 35, 91 London's Case, vouched in Co. 1 part Inst. f. 47. b. 44▪ M SIr Anthony Mayn's Case, 38 Eliz. in C. B. Co. 5. l. f. 20. 12, 14 Marrow and Turpin's Case, Pasc. 41 Eliz. in C. B. Rot. 2485. 41 March and Brace's Case, M. 11 Jac. in B. R. Bulstrode's Rep. 2 part, 151. ibid. Lord Mountjoy's Case, M. 31 & 32 Eliz. in B. R. Co. 5. lib. f. 3. 46 Manley & Jennings' Case, Pasc. 10 Jac. in C. B. Brownloes Rep. 2 part, f. 176. 47 March and Curtie's Case, 40 Eliz. in C. B. Rot. 1302. vouched in Pennant's Case, Co. 3. l. f. 65. 64, 65 Mallery's Case, 43 El. Co. 5. l. f. 111. 77 Manning's Case, 7 Jac. Co. 8. lib. fo. 94. 79 More and Conham's Case, M. 7 Jac. in C. B. Owen's Rep. f. 123. 110 N NIchols Case, Plo. Com. fo. 487. 21 O OVerton and Siddal's Case, 37 Eliz. in B. R. vouched in Co. 3. l in Walker's Case there, f. 41 Oland's Case, 44 Eliz. in B. R. Co. 5. l. f. 116. 90 Osborn and Rider's Case, Hil. 13 Jac. in B. R. Crooks Rep. 2 part, 135. 71 Ognell's Case, 29 Eliz. Co. 4. lib. fo. 49. 1●4 P PEnnant's Case, 38 Eliz. Co. 3. lib. 〈…〉 1●▪ 4●▪ 52, 〈◊〉, ●4. Page and Parr's Case, in B. R. Styles Rep. fo. 243. pag. 19 Paradine and Joxe's Case, M. 23 Car. in B. R. Styles Rep. f. 47 & 48. ibid. Pepall and Hammington's Case, 17 Eliz. in B. R. Popham's Rep. 117, & 118. 37 Partridge and Naylor's Case, Goldsborough's Rep. f. 145. pl. 62. 98 Paget's Case, 35 Eliz. in C. B. Co. 5. l. f. 76. 151 R REctor of Cheddington's Case, 40 El. Co. 1. l. 155, & 156. 2, 68, 73 Revel and Heart's Case, Goldsborough's Rep. f. 138. pl. 44. 52 Remmington and Kingerbie's Case, 18 Car. in B. R. Styles Rep. f. 4. 64 S SPencer's Case, Pasc. 29 Eliz. in B. R. Co. 5. l. fo. 16, & 17. 13, 35 Sir John Spencer and Sir Jo. Poyne's Case, Tr. 5 Jac. in B. R. Godbolt's Rep. fo. 154. 64 Say and Fuller's Case, Plo▪ Com. f. 272. b. 74 Savin's Case, 3 Jac. in C. B. Co. 5. lib. f. 123. 77 Sayer and Hardye's Case, Goldsborough's Rep. f. 179. pl. 112. 82 Saunder's Case, 41 Eliz. in C. B. Co. 5. l. fo. 12. 139 T TReport's Case, M. 37 Eliz. in B. R. Co. 6. l. f. 15. pag. 57 Thine and Cholmley's Case, Tr. 36 Eliz. Goldsborough's Rep. fo. 186. pl. 129. 64 Tooker's Case, 43 Eliz. Co. 2. lib. fo. 39 67 Tintnye and James' Case, Tr. 15 Car. in B. R. Winche's Rep. fo. 30, & 31. 122 U UNgle and Glover's Case, 36 Eliz. vouched in Walker's Case, Co. 3. lib. fo. 42 W Wrath and the Countess of Sussex's Case, P. 28 Eliz. Leonard's Rep. 1 part, 131. 6 Wotton and Edwin's Case, 5 Jac. in B. R. vouched in Co. 1 part Inst. f. 47. a. 37 Watt and Maidwell's Case, 3 Car. Rot. 1302. in B. R. Hutton's Rep. 104. 39 Wade's Case, 43 Eliz. in C. B. Co. 5. l. f. 111. 48 Lord Willoughbie's Case, Dyer's Rep. fo. 80. 68 Walker's Case, 29 Eliz. in B. R. Co. 3. l. f. 22. pag. 41, 147 Walgrave and Somerset's Case, M. 29, 30 Eliz. Goldsborough's Rep. fo. 72. pl. 17. 141 The Contents of the Chapters. CHAP. I. Of Leases: Who may make them, and for what Term; and Who are called Tenants for Life, Tenants for term of Years, at Will & Sufferance. Page 1 CHAP. II. Of the Covenants, Conditions, Grants, Provisoes, Reservations, Exceptions, Surrenders, Assignments, etc. of Leases. 12 CHAP. III. Of Payments, Rents, Acceptance, Confirmations, Extinguishments, Demands, Re-entries, Limitations, etc. of Leases. 45 CHAP. iv Of the Dates, Commencements, Continuance, and Determinations of Leases. 71 CHAP. V Of Corn sown where the Tenant is outed, or the Term determines before it be ripe, who shall have it: and also of Estovers, and Trees blown down, etc. 87 CHAP. VI Of Distresses. Of what things a Distress may be taken, and how it must be used, etc. 94 CHAP. VII. Who may take a Distress, and for what cause, and when, and where. 102 CHAP. VIII. Of Rescous, where it shall be lawful. 110 CHAP. IX. Of Replevins, when and where to be sued out. 114 CHAP. X. Of Avowries, a word or two briefly concerning the same. 121 CHAP. XI. Of Waste: What shall be Waste in Houses, Gardens, Woods, Pastures, etc. and what not. 126 CHAP. XII. Who are punishable in Waste, and for what Waste, etc. 140 CHAP. XIII. An Abridgement of the Statute of the 43 Elizab. and the 15 of Car. 2. about the unlawful cutting, stealing or spoiling of Wood, etc. necessary for all Gentlemen to know. 164 Landlords Law. CHAP. I. Of Leases: Who may make them, and for what Term; and Who are called Tenants for Life, Tenants for term of Years, at Will and Sufferance. LEASE is derived from Bract. lib. 4. fo. 220. Fleta lib. 3. cham. 12. Coo. on Lit. f. 43. b. Leapum or Leasum, for that the Lessee cometh in by Lawful means; and Dimittere is in French Laisser, to departed with or forgo. In every Lease there must be Terms of the Law. verb. Lesser and Lessee. Lessor, and Lessee: he which lets the Land is called the Lessor; and he which farms it is called the Lessee. A Lease for Years of Lands and Tenements, is good as well without Deed as with Deed; but of a Common or Rent, etc. it is not good without Deed. If a Lease for Years be made 42 Eliz. in C. B. Butts Case. Co. 7. par. f. 23. reserving Rent, it must be of Lands and Tenements, whereunto the Lessor may have resort to distrain; and therefore 30 Ass. p. 5. 12 Ass. 20. 20 E. 4. 10. Co. 1 par. Instit. f. 47. a. a Rent cannot be reserved by a common person out of any Incorporeal Inheritance, as Advowsons', Commons, Offices, Corrody, Mulcture of a Mill, Tithes, Fairs, Markets, Liberties, Franchises, etc. But if the Lease be made by Deed in writing of them, one may have an Action of Debt by way of Contract, but distrain one cannot: but if any Rent be reserved in such Cases upon a Lease for Life, it is utterly void. 3 Jac. in C. B. Bp of Bath's Case. Co. 6▪ par. f. 34, 35 40 Eliz. Rector of Chedington's Case. Co. 1 par. f. 155, 156. Bract. l. 2. c. 9 Co. 1 par. Inst. f. 45. b. Every Lease for years must be for a time certain, and aught to express the Term, and when it should begin, and when it should end. And yet there may be a certainty in an uncertainty sometimes; for the Rule is, Id certum est, quod certum reddi potest: therefore look in the 4 Chapter, and you will find some pretty Cases there about this Rule. If a man have a Lease of 32 lib. Ass. 6. Lands for 500 years, it is but a Chattel, and falls to his Executors or Administrators after his death, if he do not otherwise dispose of it in his life-time. Every one seized of an absolute cowel Inst. p. 189. pure Estate in Fee-simple, may make a Lease of his Lands for as long a time as he pleaseth; and so might Bishops, etc. before they were restrained by Statute. See 32 H. 8. c. 28. 13 El. Coo. 1 par. of Inst. f. 44. a. b. Noye's Maxims, p. 69. Bro. Lease 47. 32 H. 8. c. 28. Vide Herne's Law of Conve●. p. 66, 67, & 68 cap. 10. 18 Eliz. c. 6.1 Jac. c. 3. Tenant in Tail, being of full age, by▪ Indenture in writing may make a Lease of such Lands and Inheritances as have been formerly let to Farm for the space of 20 years next before the Lease made; or if it be but let 11 years at one or several times within those 20, it is sufficient, reserving the old Rent or more; without impeachment of Waste must not be in it, and it must commence from the day of the making or from the making: and if there be an old Lease in being, it must be either surrendered, expired or ended within one year after the making of the new one, or else it is not good; except in the Case of a Bishop, which you will find afterwards. And if the Lease be thus made, it binds the Issue of Tenant in Tail, if he die before the Term be out: but if he die without Issue, the Donor may avoid the Lease by Entry; and so may he in Remainder; and though he accept the Rent, yet it shall not affirm the Lease. The Husband seized in Fee-simple Co. 1 par. Inst. f. 44. cowel's Inst. p. 189 Noye's Maxims, p. 69. or Fee-Tail in right of his Wife may make such a Lease of his Wife's Land, by Indenture in writing, in the name of the Husband and Wife, and she to seal thereunto; and the Rent must be reserved to the Husband and his Wife, and to the Heirs of the Wife, according to her Estate of Inheritance: and this shall bind her and her Heirs after his death. Bishops, Deans and Chapters, Co. 1 par. Inst. f. 44. a. Cowel's Inst. p. 189. Parson's Law, p. 29. etc. seized of any Estate in Fee in right of their Churches, observing the Rules aforesaid, may make Leases: and so may Masters and Fellows of Colleges, and Wardens of Hospitals, if their private Statutes will permit them. But note well, that Tenant Co. ubi suprá. 32 H. 8. cap. 28. in Tail and the persons before named, though they do observe these Rules, yet they cannot let for any longer term than Three Lives, or 21 years, but for what term they will under. If Tenant in Tail or any of the aforesaid persons observe Co. 1 par. Inst. f. 45. a. not these Rules in their Demises, yet notwithstanding the Leases shall be good against them for their Lives. And if a Lease be made by a Bishop for 21 years, according Co. 1 par. Inst. f. 45. a. Pasc. 28 El. in B. R. The Countess of Sussex's Case. Leonard's Rep. 1 par. 131. Parson's Law p. 27, 28. Vide Hern's Law of Conu. p. 69, 70. to the Rules aforesaid, which is spent within 3 years or more, now if the Bishop make a new Lease to another for 21 years, to commence from the making, which is confirmed by the Dean and Chapter, this is a good Lease, and the second Lessee may enter when the first Lease is out, and hold for the Remainder of his term of 21 years then to come. Demise, Grant, Betake to Co. 1 par. Inst. f. 45. b. Bro. Leases 60. 37 H. 8. Farm-let, and whatsoever words amount to a Grant, may serve to make a Lease. Generally now every Lessee Terms de Ley, verb. Farm. for Life, Years, or at Will, although it be of never so small a Cottage or house, is called a Farmor or Fermor, and the premises he possesseth are called a Farm or Ferm. But formerly the chief Mesuage ibid. in a Village or Town, whereunto belonged great Demesnes of all sorts, which were used to be let for term of Life, Years, or at Will, was called a Farm or Ferm. They are called Farms or Ferms of the Saxon word Feormion, ibid. which signifies to feed or yield Victuals; for in ancient time their Reservations were for the most part in Victuals, until at the last, and that chief in the time of K. H. 1. by agreement, the Reservation of Victuals was turned into Money, and so hitherto hath continued amongst most men. Under the name of Lands are comprehended not only Gardens, Meadows, Pastures, Rivers, Woods, Moors, Waters, Marshes, Furzes and Heath; but also Messages, Houses, Tofts, Mills, Castles, and such like. If the Lessor seal the Indenture, Noye's Maxims, p. 57 Finch, l. 2. cap. 2. p. 109. and not the Lessee, yet it is as good against the Lessor as if both had sealed. And if at any time there happen Noye's Maxims, p. 57 Lit. 88 14 Eliz. Finch, l. 2. c. 2. p. 109. any variance between the Indentures, it shall be taken as the Deed of the Lessor is, and the other shall be intended only the misprision of the writer: for the Lessor's is the principal Deed, and the other but only a Counterpane. Now we have spoken briefly something concerning Leases, and who may make them, we shall next speak something of the several sorts of Tenants mentioned in this Treatise, and so conclude this Chapter. Tenant for Life is he who Lit. Tenors, lib. 1. c. 6. Noye's Maxims, p. 30. hath Lands or Tenements for his own or another man's Life; and this Tenant hath a , but none other of lesser Estate hath a . If a man be Tenant for term Co. 1 par. Inst▪ fo. 42▪ a. of his own Life, he hath an higher Estate than he that is Tenant for another man's Life. Tenant for term of Years Lit. Tenors, l. 1●. Co. 1 par. Inst. ●●. 43. b. 44. a. is, where a man letteth Lands of Tenements to another for a certain term of Years, as it is agreed between them; and when the Lessee entereth, he is then Tenant for term of years and if the Lessor reserve to him a Rent, he may either distrain on the premises, or have an Action of Debt, if the Rent be arrear. There needs no Livery and Co. 1 par. Inst. f. ●8. a. Seisin to be given upon a Lease for Years, but the Lessee may enter when he will; but a Lessee for Life must have Livery, or else no passeth. If a man make a Lease by paroll Lit. Tenors, l. 1. Finch, l. 2. cap. 2. p. 109. 38 H. 8. Br. Estoppel 8. to another, it behoves that he be seized of the Lands or premises at the time of the Lease made; for else the Lessee may plead that the Lessor had nothing in the premises at the time of the Lease made, and then he is barred of his Action: but if it be by Indenture in writing, than the Lessee cannot plead this Plea. Tenant at Will is, where Co. 1 par. Inst. f. 55. a. Fleta, l. 3. c. 15. Lands or Tenements are let by one man to another, to have and hold to him at the Will of the Lessor: now when the Lessee enters, he is Tenant at Will, and the Lessor may put him out when he pleases. But if a man let Lands to another Coo. ib. by Lease, to hold the same during the Will of the Lessee, in this case the Law intends it to be at the Will of the Lessor also, and he may put him out when he pleases. The same Law is if it be at the Will of the Lessor, it is intended at the Lessee's Will also, for the Lessor cannot force him to stay longer than he pleases. Tenant at sufferance is he Co. 1 par. Inst. f. ●7. b. Brac. lib. 4. f. 318. 21 H. 6. f. 42. Kitchen, f. 238. a. 4 E. 3. 35. 24 E. 3.24. F. N. B. 201. D. Blow. Com. 138. who comes in by lawful Lease, and keepeth possession after his Lease is out, and wrongfully holdeth over. Finch lib. 2. cap. 3. As Tenant for Life of I. S. who holdeth over after the death of the said I. S. The Lessor cannot have an Coo. ubi suprá. Action of Trespass against such Tenant before his Entry into the Premises. CHAP. II. Of the Covenants, Conditions, Grants, Provisoes, Reservations, Exceptions, Surrenders, Assignments, etc. of Leases. IF the Lessor Covenant to 38 Eliz. Sir Anthony Mayn's Case. Co. 5 par. f. 20. Noy's Maxims, p. 13. Hughes▪ grand Abr. 1 par. p. 487. c. 16. make a new Lease upon Surrender of the old Lease, and afterwards he makes a Lease by Fine for more years to a Stranger, here the Covenant is broken, although the Lessee did not Surrender, the which by the words ought to be the first Act; for that the Lessor did disable himself either to take the Surrender, or make the new Lease. If a man make a Lease for Noye's Maxims, p. 17. & 50. Dr. & Stud. lib. 1. ca 24. Years, and the Lessee covenanteth and granteth to pay to the Lessor, his Heirs and Assigns, yearly during, etc. 10 pound; here if the Lessor die, the Executors shall have the Rend arrear. If a man covenant and grant 37 H. 8. Bro. ●eases 60. Kit. Court-Leet, p. 235. b. to R. A. that he shall have ten Acres of Land in C. for years, this is a good Lease, for Concessit is of such force as Dimisit. If the Lessee covenant for Pasch. 25 Eliz. in B. R. Co. 5 par. f. 16, 17. Spencer's Case. M. 29 Eliz. in B. R. Barker and Fleetwell's Case. Godbolt's Rep. fo. 69, 70. Vide Hern's Law of Conu. p. 107, 108, & 109. him and his Assigns, to build a Brickwall or an House upon the Lessor's Land, or pay a Collateral Sum of money to the Lessor, and after the Lessee assigneth over his Term; in this case the Assign shall not be bound by this Covenant, because the things were only Collateral, and were not in esse, nor parcel of the Demise, at the time of the Lease made. If there be a Covenant in a 38 Eli. Co. ● par. f. 64. Pennant's Case. cowel's Inst. p. 193. Dyer f. 51. Lease, that if the Rent be behind for such a time, than the Lease to be void; here no acceptance of the Rent after such failure will make the Lease good. If a man let a House and Trin. 1649. Rot. 348. in B. R. Compton and Allen's Case▪ Styles 162. F. N. B. fo. 145. K. Noye's Max. p. 16. 40 E. 3. 5. Finch, p. 64. 38 Eliz. Sir Anthony Mayn's Case. Co. 5 par. l▪ 20. Lands for years, and the Lessee covenanteth to uphold the Houses, and to leave the Houses and Lands in as good a plight and estate as he found them; in this case, if the Houses be blown down by Tempest or fired by accident, or otherwise destroyed, if the Lessee do not repair and build them again, and leave them as good as he found them, the Lessor may bring an Action of Covenant against him at the end of his term: but if he maketh Waste in the cutting of Timber, the Lessor may have an Action of Covenant before the end of the Term for that. And if the Lessee for years' Mich. 44 Eliz. in B. R. Dean and Chapter of Windsor's Ca Co. 5 par. f. 24. Hughes's grand Abr. 1 par. p. 492. c. 19 covenant and grant for him and his Executors with the Lessor, to repair the Houses as often as need requires, and after the Lessee assigns over his term, and the Assignee suffers the Houses to decay; in this Case an Action of Covenant lies against the Assignee, although he be not named in the Covenant. If the Lessor covenant with Co. 1 par. Inst. f. 41. B. Dyer, f. 19 the Lessee, that he shall have sufficient Hedge-bote by the Assignment of him or his Bailiff; here he may not take it without Assignment, Quia modus & Conventio vincunt Legem. If a man take a Lease by Indenture Perkins Tit. Condition's. 738. M. 1649. B R. Styles prac. Regist. p. 7●. of a ruinous House, or that wanteth Reparations, and do Covenant in the Lease to leave the House at the end of the term in good Repair; here he is bound to leave it in good Repair whatsoever happen, by the Rule aforesaid: but if he do not covenant to do it, he is not bound by Law in such case to do it. If a Lease for Years be made Pasc. 14 H. 8. 32. Perkins 738. 40 E. 3. 6. Hughes' gr. Abridgement, p. 499. c. 2. Philips' Principles of Law, p. 2. of a Wood by Deed indented, and it is there covenanted that the Lessee shall leave the Lessor's Wood in as good plight as it was at the time of the Lease made, and during the term the Wood is destroyed by a sudden Tempest; in this case the Lessor can have no Action of Covenant against the Lessee, for the non-performance of this Covenant, for it is not possible for him to perform the same, and Lex non cogit Impossibilia. 22 H ●. See Goldsborough's▪ Re●. p. 16. in the▪ ●nd▪ If a Lease be made for Years rendering Rend, and the Lessee is bound to perform all Covenants and Agreements, if he do not pay the Rent the Obligation is forfeited; for the payment of the Rent is an Agreement. If a man be bound in an Obligation Dr. & Stud. lib. ●. cap. 47. to repair the Houses of the Obligee as often as need shall require during such a time, and after the Houses need Reparations; in this case, though the Obligor knoweth not that they need Reparations, yet he is bound to take notice at his peril, for Ignorance here excuseth not. But if the Condition had Dr. & Stud. ibid. been to repair such Houses as the Obligee should assign, and after he assigneth, etc. but the Obligor hath no notice of it; here the ignorance shall excuse him, for the Obligee ought to give him notice: but if the Assignment had been appointed to a Stranger, there the Obligor must have taken notice at his peril. If a Lease for Years be made Lit. 166. 26 H. 8. 3. Finch, lib. 2. c. 3. p. 115. with Warranty, this sounds not in the nature of a Warranty, but of a Covenant, because it is but a Chattel; and if the Lessee be ousted, yet he may have an Action of Covenant. If I be seized of 10 Acres Pasch. 9 E. 4. 1. P. 24 E. 4. 34. P. 45 E. 3. 3. M. 44 E. 3.37. Perkins, 825. of Land, and lease the same to a Stranger for Life or Years, reserving 10 Rend to me, etc. payable at the Feast of Easter, and the Lessee doth bind himself to me in a bond of 100 pound, to pay the Rent reserved upon the Lease justly according to Law; if before any day of payment I do put the Lessee out of part of the Land, and he doth occupy the residue for the whole term, and will not pay any Rent, yet the Bond is not forfeited; for by the putting out of the Lessee of parcel of the Land the whole Rent is in suspense: but if one in B. R. Page and Par's Case. Styles Rep. 243. day of payment be incurred before the ouster, than he must pay the Rent, or else the Bond is forfeited. If a Stranger who hath not 22 H 6. ac. Perkins, 826. See Paradine & Joxe's Case. M. 23 Car. in B. R. Styles Rep. f. 47, 48. any right doth put out the Lessee for years of the same Land before any day of payment, and keep possession thereof until the day of payment be past, yet the Lessee ought to pay me the Rent at the day whereon it ought to be paid, or otherwise he forfeits his Bond. If three Copartners be seized P. 9 F. 4.1. M. 12 H. 8. 3. Perkins, 8●8. of a Manor, and one of them in her own name, and without the agreement of the other two, doth lease the whole Manor unto I. S. for 4 years, yielding 5 pound yearly at the Feast of Easter unto the Lessor and her Heirs, and I. S. doth bind himself in 40 pound unto his Lessor to pay the Rent reserved, etc. and before any day of payment the other two Copartners which did not consent to the Lease do put the Lessee out of the whole Manor, and keep the possession until the day of payment of the Rent be incurred; yet it behoveth the Lessee to pay the Third part of the Rent reserved to his Lessor, otherwise he forfeits his Bond: for the two Copartners who put him out have not Right but to two parts of the Manor. If a Lease be made to three 28 Eliz. Lord Stafford's Case. 28 Eliz. in ●. B. Leeds and Crompton's Case. Hughes' gr. Abr. 1 par. p. 428.4 & 5 P. & M. Dyer 152. Vid. Co. 4 par. Dumpor's Case. 45 Eliz. in B. R. upon Condition that they nor any of them should alien without licence, if the Lessor give leave to one of them to alien, now the other two may alien without licence; for the Condition being determined to one is determined to all. If the Lessor do enter for Noye's Maxims, pa. 72. Condition broken, or the Lessee do surrender, or the Term end; yet the Lessor may have an Action of Debt for the Arrearages. If a Lease be made upon Dr. & Stud. lib. 2. c. 35. M. 31 H 8. Dyer, f. 45. Co. l. 8. f. 90. b. 7 E. 4. 13. & Philips' Pr. of Law, p. 14. Condition that the Lessee shall not alien to A; if the Lessee alien to B, and he alien to A, the Condition is not broken; for a Condition that goes to the breaking of an Estate shall be taken strictly. If a man seized of Lands in L●t. lib. 3. cap. 5. Co. 1 par. Inst. f. 216. a. b. 217. a. b. Vide Lord Stafford's Case. Co. 8 part, f. 73. Vide Herne's Law of Conveyance, p. 48. & see Nichols Case. Pl. Com. f. 487. & Kitchen, f. 219. a. Fee lease the same to a Stranger by Indenture for five years, upon Condition that if the Lessee pay to the Lessor five pound within the two first years, that then he shall have Fee in the same Land; in this case if he pay the money, he hath a good Estate in Fee, if Livery and Seisin were made according to the Deed. But if a man seized of Land in Fee lease the same to a Stranger Perkins 708. Vid. 9 H. 6.29. for years, upon condition that if the Lessee be ousted within the term by his Lessor, that then he shall have Fee; here if the Lessee be ousted by a Stranger without the Lessor's assent, he shall not have Fee. If a man seized of Lands in Fee leaseth the same to a Stranger Perkins 710. by Indenture, yielding 5 pound by the year, and the Indenture is, that if the Lessee will hold over 10 years to him and his heirs, that he shall then pay 20 pound by the year, and Livery and Seisin is made to the Lessee accordingly; in this case for the Rent behind within the 10 years the Lessor shall have an Action of Debt, which proveth the and the Fee are not in the Lessee before the 10 years ended: but if when the ten years be past and ended the Lessee doth continue the possession of the same Land, and doth occupy the Land by force of the Indenture, than he hath Fee, and shall pay the 20 pound as a Rend sect. But if a M. 40 E. 3.27. Perkins, 711. Coo. 1 par. Inst. f. 218. b. man seized of Land doth lease the same Land for Life, yielding unto him a Rose for the first six years, and if he will hold the Land over the six years, that he shall pay 3 Marks by the year; in this case the Lessee hath the presently. If a Lease for Life or Years be 4 H. 7.4.8 E. 4. 13. P. 2 E. 4. 3. ● Perkins, 725, & 723 Vide Herne's Law of Conu. p. 115. made upon Condition, that if the Lessee kill I. S. within the term, that then he shall have and hold the Land leased unto himself and his Heirs for ever; now if he kill I. S. within the term, yet his Estate is not enlarged thereby, because the Condition is against Law, & the Estate doth begin to be enlarged upon the performance of the Condition; yet the Lease is good, because the same doth not begin by the Condition. If a Lease be made for Years Perkins, 729, 730. upon Condition, that if the Lessor do alien the Reversion within the term, than the Lessee shall have Fee, and the Lessor doth alien the Reversion in Fee by Fine to a Stranger; now in this case the Lessee shall not have Fee, for the and the Fee are lawfully in the Conusee before the Lessee can take it by Condition: but if the Lessor had granted by Deed only to a Stranger, than the Lessee should have had Fee by the Condition; and the reason is, because the Reversion is not in the Grantee before Attornment. If a man have a Lease for Perkins, 833. Terms of the Law, verb. Pri●i●. Vide 21 H. 7.18. a. & Co. 1 part of Instit. f. 214. b. Years, and demise or grant the same upon Condition, etc. and die; his Executors or Administrators shall enter for the Condition broken, for they are privy in right, and represent the person of the dead. All Grantees of Reversions may enter upon Farmers for 32 H. 8. c. 34. Finch, l. 2. c. 1. pa. 107. Herne's Law of Convey. p. 31. any Forfeiture or Condition, and have like advantages against them (by Action only) for any other Covenants, Conditions or Agreements contained in the Indentures of their Lease, as the Lessors, their Heirs or Assigns might; and the like for the Lessees against the Grantees of the Reversions (Recovery in value only excepted.) If a man make a Lease for Lit. l. 3. c. 8. Co. 1 par. Inst. f. 292 b. 45 E. 3.8. 17 H. 6.26. Cowel's Instit. p. 193. Noye's Maxims, p. 77. Years upon Condition that the Rent shall be paid at Michaelmas, and in the mean time give a general Release to the Lessee of all Actions and Demands; yet this doth not remit the Rent, but the Lessor may sue for it: and the Reason of this is, because it was neither Debitum nor Solvendum at the time of the Release made; and it is a thing not merely in Action, because it may be granted over. If two take a Lease jointly for Years with Condition, that Vid. 3 F. 6. Dyer 67. Farrington's Case. Cowel's ●nstit. 199. if the Lessees die before the term ended the Lease shall be void; now the Lessees make division, and one of them alienateth his part, and dies; in this case the Lessor cannot reassume the part of him that died, but the Alienee shall have it during the life of him that surviveth. If a Lease be made for Years Hil. 36 Eliz. Rot. 376. Cole and Taunton's Case. Goldsb. p. 184. pl. 122. Vid. the Case 31 H. 8.45. upon Condition, that if the Lessee demise the premises or any part thereof other then for a year to any person or persons, than the Lessor and his Heirs may re-enter; the Lessee after devises it to his Son by his Will; this is a breach of the Condition. If a man of his mere motion Dr. & Stud. lib. 2. cap. 20. fo. 93. a. enfeoff H. by Indenture upon Condition that he shall yearly pay to I. S. out of the Lands a certain Rent, and if he fail in payment, that it shall then be lawful to the said I. S. to enter, etc. the Rent is behind and unpaid; in this case I. S. may not enter by Law, for there is an ancient Maxim, That no man shall take advantage of a Condition unless he be party or privy to it. If the Grantee of a Rent-charge release parcel of the Dr & Stud. lib. 2. c 16. 21 H. 7. 2. Co. 1 par. Inst. fo. 147. b. 148. a. H. 14 Eliz. in C. B. Godbolt 139. Harding's Case. M. 30 Eliz. in B. R. Rent to the Grantour or his Heirs, the Remainder may be apportioned, and the Land shall remain chargeable still for the residue: but if he release in one Acre parcel of the Land charged, than all the Rent is extinct and gone. If the Lessor grant a Rent to a Stranger, the Tenant cannot 49 E. 3.15. Finch lib. 1. c. 3. p. 36. Attorn nor put him in possession by the delivery of an Ox or such like thing; because it is another thing: but upon a Recovery of a Rent, the Sheriff may deliver possession by such a thing. If one that hath a Lease for Years grant his term to a Feme 14 Eliz. Pl. 418. ●inch, l. 1. c. 3. p. 42. Covert and to another, or if a Feme sole and another be Joint-tenants for years, and she take a Husband; yet the Estate of the Feme and Jointure doth continue, so as the Survivor of the Wife or of the other shall have the whole Estate. If a man grant an Estate to a Woman dum sola suit, or durante 37 H. 6. 27.26 E. 3.69. 14 H 8. 13. Bract. l. 4. f. 207. Fleta, l. 3. c. 12. Co. 1 par. Inst. f. 42. a. Herne's Law of Conu. p. 45. viduitate, or quamdiu se bene gesserit, or to a man and a woman during the Coverture, or as long as the Grantee dwells in such an house, or so long as he pays 10 pound, etc. or until the Grantee be promoted to a Benefice, or for any like incertain time; in all these cases, if it be of Lands or Tenements, the Lessee hath in judgement of Law an Estate for Life determinable, if Livery and Seisin be made. And if it be of Rents, Advousons', or any other thing that Co. 1 par. Inst. f. 42. a. lies in Grant, he hath a like Estate for Life by the delivery of the Deed. If a Lessee for another man's Life die, living the other man, Brit. f. 83. Fleta l. 3. c. 12. Brac. l. 4. f. 170. Co. 1 par. Inst. f. 41. b. he that doth first enter upon the Estate after his death shall be Tenant pur altar vie, that is, Tenant for the other man's Life, and shall be liable to the payment of the Rent reserved, and in Law is called an Occupant, because his Title is by his first Occupation. And so if a Tenant for his Co. ibid. 27 Ass. p. 31. Pl. Com. fo. 28. b. in Col hirst's Case, ●●. B●rr 303. own Life grant over his Estate to another, if the Grantee die, living Tenant for Life; in this case he that first enters shall be an Occupant: in like manner it is of an Estate created by Law; for if Tenant by the Courtesy or Tenant in Dower grant over his or her Estate, and the Grantee dieth during their Lives, in this case also there shall be an Occupancy. But there can be no Occupant Co. ibid. against the King, for nullum tempus occurrit Regi. It were good, saith my Lord Cook, to prevent the incertainty 11 H. 4.42. 17 E. 3.48 Dyer, 8 El. 253. Co. 1 par. Institut. f. 41. b. of an Estate of the Occupant, by adding these words, [To have and to hold to him and his Heirs during the life of Cestui que vie:] and this shall prevent the Occupant. And if a man hath an Estate Co. 1 par. Inst. ibid. already for another's Life without the words before named, than it is good for him to assign his Estate to divers and their Heirs during the Life of Cestui que vie. If a Lessee for 20 years of Lands and Tenements grant Perkins, 693. the same Lands for parcel of the years to a Stranger, reserving to himself 20 shill. in this case he may distrain for the Rent reserved, or have an Action of Debt at his pleasure, because by common intendment he is to have the same Land after the years determined, because he hath granted but parcel of the years, so that the Remainder remains in him. But if Cestui que use lease his Land in Use for term of Perkins, 692. Years, reserving Rend by word of mouth; in this case he cannot distrain for the Rent reserved, because no Reversion doth remain in him; but it is said he may have an Action of Debt for it, but some doubt of it. If I lease Lands to another Perkins, 91. Co. 1 part Inst. f. 46. b. for Years, the term to begin at the Feast of Easter next, and before the Feast the Lessee grants his term to a Stranger; this is a good Grant, for he hath an Interest before Entry which may be granted over. If Rent be granted to me, I Perkins, 91. may grant it away to a Stranger, before I be seized thereof. If a man grant to another Perkins, 108. Common of Pasture for▪ 10 Kine in Lands in such a Town, though the Grant be general, yet the Grantee shall not have Common but in Lands Commonable, so as the Grant shall extend but to Pasture-grounds. Tenant at Will cannot grant 27 H. 6. f. 3. b. Kitchen, p. 237. a. over his Estate, for he hath no Interest certain. If a Lease be made to Baron Hil. 17 El. in B. R. Co. 1 part Inst. f. 46. b. and Feme for term of their Lives, the Remainder to the Executors of the Survivor of them, if the Husband grant away the term and die, yet this shall not bar the Wife. If the Husband and Wife be ejected of a Term in the right Co. 1 part Inst. f. 46. b. 37 Ass. p. 11. Pl. Co. 418. b. of his Wife, and the Husband bring an Ejectione firm in his own name, and do recover, & die; in this case his Executors shall have it, and not the Wife, son the Recovery in his own name did vest the Term in himself. If a man be possessed of a Term Co. ibid. Pl. Co. 2●0. b. Dame Hale's Case. Co. 1 part Inst. f. 351. a. See Finch l●●. c. 5. p. 72. & Dyer 264. b▪ Herne's▪ Law of Conu. p. 81, & 82. of 40 years in right of his Wife, and make a Lease for 20 years, reserving Rend, and die; here the Executors of the Husband shall have the Rent for that Term, but the Wife shall have the Remainder of the Term when the 20 years is out; but if he had granted the whole Term, than she had got nothing. A Release made to Tenant Co. 1 part Inst. fo. 270. a. 49 E. 3.28.32 H. 6.8 Co. ibid. f. 46. b. Perkins, 602. See the Clerk of Assize, p. 50. for Years before his Entry to increase his Estate is void; but a Release of the Rent before Entry is good. The Tenant may grant away his Interest to another before Entry; and although the Lessor die before Entry, yet the Lessee notwithstanding may enter into the Lands; or if the Lessee die before Entry, his Executors or Administrators may enter: and if the Lease be made to two, and one die before Entry, yet his Interest survives. The Lessor cannot grant away Co. 1 par. Inst. fo. 46. b. the Reversion (before the Lessee's Entry) by the name of a Reversion, If a man grant to a Lessee for 12 El. 381. Finch, l. 1. c. 3. p. 15. Vid. Lutterell's case. 43 El. in B. R. Co. 4 lib. f. 86. & Co. 1 par Inst. f. 41. a. Vide Co. 5 l. in Spencer's case. years, that he shall have so many Estovers as shall serve to repair his House, or that he shall burn within his House, or such like, during the Term; this is appurtenant to the Land, and shall run with the same as a thing appurtenant in whose hands soever the same cometh. If a Lessee for years grant a Rent-charge and surrendreth, 1 El. 198. Finch, lib. 1. cap. 3. p. 27. Noye's Maxims, p. 7. the Rent shall be paid during the Term to the Stranger. If 2 Tenants in common do Pl. Com. Hill & Grange's Case. 171. 2 & 3 P. & M. 140. b. 161. b. Finch, l. 1. c. 3▪ p▪ 63. Co. 1 par. Inst. f. 197. a. grant a Rent of 10 shill. this is several, and they shall be charged with 20 shill. Rend; but if they make a Lease and reserve 10 shill. Rend, they shall have no more but only 10 shill. between them. If a man make a Lease, provided ●. N. B. 223. Mich. 3 Jac. in C B. Co. 1 par. Inst f. 52. b. 45 El. in B. R. Dumpor's Case. Co. 4 l. f. ●19 Hern's Law of Conveyances, 110. that the Lessee or his Assigns shall not alien the premises without special licence of the Lessor, etc. and after the Lessor giveth licence to alien the same or any part; in this case the Lessee may alien and his Assigns ad infinitum without any more Licence, for the Proviso is determined for ever; and if the Lessor die before the Lessee alien, yet that does not countermand it. If the words of a Lease be, M. 3. E. 6. Dyer 65 66. Hughes' gr. Abr. 1 part, p. 417. that it shall not be lawful for the Lessee to alien without the assent of the Lessor, on pain of Forfeiture; this Restraint continueth but during the Life of the Lessor and Lessee. If a Lessee for years devise Dyer f. 75. Cowel's Inst. p. 142, 143. Bro. Chattels 23. Don● 57 Herne's Law of Conu. p. 81. his whole term to A, provided if he die while I. S. is alive, than the Residue shall remain to I. S; A alienes and dies: in this case I. S. is without remedy. If a man make a Lease for 27 H. 8.19. Finch, l. 1. c. 3. p. 65. years, reserving Rend to him, Mich. 5 Jac. inter Wo●ton & Edwin in B. R. Co. 1 part Inst. f. 47. a. Goldsbor. Rep. p. 148. pl. 68 Vid. Pacis Consultum, p. 92. without naming his Heirs, the Rent shall then determine upon his death, if he die within the Term; or if it be to him and his Assigns or Executors, it is all one: but if it be reserved generally without showing to whom, it shall go to his Heirs. If a man lease Land to another See 17 El. in B. R. inter Pepal & Hammington. Poph. 117, & 118. by Deed indented, except and always reserved to the Lessor all great Trees growing upon the same Land; by this Lease the great Trees shall not pass. If two Copartners make a Finch l. 1. c. 3. p. 9 Lease, reserving Rend, they shall have this Rent in common as they have▪ the Reversion; but if afterwards they grant the Reversion excepting the Rent, than they shall be Joint-tenants of the Rent. If a man let Lands for years, Dyer 56, & 82. Co. 1 par. Inst. f. 148. b. Hughes' gr. Abr. p. 193. 1 par c. 6. reserving Rend, and a Stranger doth recover part of the Land, than the Rent shall be apportioned, that is to say divided, and the Lessee shall pay, having respect to that which is recovered and to that which yet remaineth in his hands, according to the value. If a man make a Lease of a 1 & 2 P. & M. 104. Finch, l. 1. c. 3. p. 18. Perkins 643. 11 H. 4. 2. Philipps Pr. of Law, p. 122. Manor except an Acre, this Acre is no part of the Manor as to the Lessor, but as to him that hath right to demand the Manor, by an eigne Title it remains parcel, and therefore he shall make no fore-prise in his. Writ. A Lease of a Manor excepting the Services, the Exception Finch. ibid. p. 53. is void, for it is parcel of the thing let. If one make a Lease excepting a Close and Wood, now 14▪ H. 8. ●. the Law giveth him a way to come to it. If the Lessor make a Feoffment, Noye's Maxims, p. 59 and the Lessee for years giveth leave to the Lessor to make Livery and Seisin of the premises, saving to himself his Lease, and he doth so; here the Term is not surrendered, for the Lessee had an Interest which could not be surrendered without his consent to surrender, and here no such intent doth appear, wherefore he may enter and have his Term, and the Rent is renewed: but it is otherwise with a Lessee for Life, for there the Rent is extinct. If a Lessee for years do take a new Lease for more years, this Perkins 117. Vide Watt & Maidwell's Case, Hil. 3 Car. ●●●. 1302. B. R. Hutton's Rep. 104. is a Surrender in Law of the old Lease. A Lessee for years cannot surrender before his Term begin, Perkins 601. Noye's Maxims, 74. neither can he surrender part of his Lease, but he may grant part of it. If two joint-tenants in Fee are of one Acre of Land, and 5 E. 3.19. & s●● Perkins, 80. lease the same Acre to a Stranger for Life, and the Lessee granteth his Estate to one of the Lessors; this is a Surrender for the whole Acre, and not for a Moiety. Tamen quaere. If a Lessee for Life of an Acre of Land lease the same Acre to his Lessor for years, the Remainder to a Stranger in Fee; this is no Forfeiture, though he do make Livery and Seisin to the Lessor. If a Lessee for Life or Years Herne's Law of Convey. p. 76. Perkins, pl. 609. of Land say to his Lessor, that he will occupy his Lands no longer which he holdeth of him for Life or Years, and so wills him to enter; in this case if the Lessor consent, it is a good Surrender. But if the Lessee for Life or 1 Ass. p. 20. Tr. 8 E. 3.46. Perkins, 117. Years of a House and Lands remove his goods out of the House and Land, by reason of the greatness of the Rent, or because he is behind in his Rent, or for any other cause, and the Lessor do enter into the House and Lands; this is no Surrender of the Tenant. If a Lessee for Years assign 37 ●l. B. R. Overton and Siddal's Case, cited in Co. 3. l. in Walker's Case there. over his Term and die, his Executors shall not be charged for Rent due after his Death. Noye's Maxims, p. 72. If the Executors or Administrators Co. ibid. in Walker's Case ut suprá. Noye's Maxims, p. 72. of a Lessee for Years do assign over their Interest, neither doth an Action of Debt lie against them for Rent due after the Assignment. If a Lessee assign over his Marrow & Turpin's Case. P. 41 Eliz. Rot. 2485. Vide March & Brace's Case. M. 11 Jac. in B. R. Bulst. 2 part 151. Hern's Law of Conu. p. 110. Term, the Lessor may charge which of them he will; but if he once accept of the Rent from the Assignee knowing of the Assignment, he cannot then after bring an Action of Debt against the Lessee for Rent due after the Assignment. If the Lessor grant away the 36 Eliz. Ungle & Glover's Case. Reversion after the Assignment Vid. Co. 3 l. in Walker's Case there: and see Humble & Oliver's Case. M. 36. El. in B. R. Popham, 55. of the Lessee; in this case the Grantee cannot have an Action against the Lessee for the Rent, because there is no privity between them. If a Tenant for Life enfeoff 19 E. 3. Surr. 8. Co. 1 par. Inst. f. 42. a. him in Remainder for Life, this is a Surrender, and no Forfeiture. If a Tenant for Life make a Co. ibid. 13 ●. ●. Dower 95. Lease by Deed, or without Deed, to him in Remainder or Reversion, and after he in Remainder taketh wife and dieth; in this case she shall not be endowed, for the Tenant for Life shall enjoy the Land again, for it cannot be a Forfeiture, because he in Remainder was a party; and Surrender it cannot be, for that his whole Estate was not given. If a Tenant for Life take an Co. 1 par. Inst. f. 42. a. 29 Ass. p. 64. Husband, and by Deed indented they make a Lease to him in the Reversion for the Life of the Husband, reserving a Rent; this is neither Forfeiture nor absolute Surrender, for the reasons in the last Case mentioned. But if a Tenant for Life take Husband, and they by Deed indented make a Lease to him in Reversion for the Life of the Wife, reserving Rent; this is a Surrender, for their whole Estate is granted, and the Reservation is void. If a Lessee for 20 years take Co. 1 par. inst. ●. 218. b. Pl. Com. in Fulmerston's Case. 107. b. Vid. Poph. Rep f 9 V. Herne's Law of Conu. p. 73, & 74. Finch, l. 1. c 4. p. 62. 1 & 2 P. & M. 107. a Lease for 10 years to begin presently, upon Condition if such a thing be not done to be void: now the first Lease is surrendered in Law; and though the second Lease be void upon the Condition broken, yet the Surrender remaineth good. If a Lease for years be made to a man without any Consideration, Perkins, 536. the Lessee shall be seized to his own use. If a man make a Lease to another Dr. & Stud. l. 1. c. 24. See▪ the Clerk of Assize. p. 63. and his Heirs for 20 years, intending that his Heirs shall have it; yet if the Lessee die, notwithstanding the intent, the Executors, and not the Heir, shall have it. If a man let a House cum pertinent. Pl. Com. f. 85. b. & f. 270, 273. 31 H. 8. tit. Lease 55.23 H. 8. tit. Feoffment 53. no Lands pass; but if it be cum omnibus terris pertinent. here the Lands used with the same do pass. Herns' L. of Con. p. 104. If a man take a Lease of his Br. Estoppel 221. M. 31, 32 El. in C. ●. in london's Case adjudged. Co. 1 part Inst. f. 47. b. Vide Terms of the Law, verb. Estoppel. own Land by Deed indented, he is then concluded to say that the Lessor had nothing in the Land at the time of the making of the said Lease, but after the Lease is out the Estoppel is removed. If two joint-tenants are of a 24 Car. See Beverley's Case. Clayton's Rep. p. 111. pl. 189. & see Green's Case An. 1650. Idem p. 146. pl. 265. Lease for Years, and one bid the other go out of the House, and he does so; in this case he may have an Ejectione firm against his fellow as well as if he had put him out by force. CHAP. III. Of Payments, Rents, Acceptance, Confirmations, Extinguishments, Demands, Re-entries, Limitations, etc. of Leases. IF the Lessee be to pay his Rent to his Lessor at May-day Vide Clun's Case 11 Jac. in B. R. Co. 10 lib. f. 227. Co. 1 part Inst. f. 202. a. And see Hare & Savil's Case. M. 7 Jac. in C. B. Brownloes 2 part, p. 273. Herne's Law of Conu. p. 23. and Martinmas, or within 15 days next after either of the said Feasts; in this Case the Tenant need not pay till the 15th day, for that is the legal day, and the other only a voluntary day of Payment: and if there be a Clause, that if the Rent be behind by the space of 15 days after any of the said days of payment, than the Lease to be void; in this case the Lessee shall have 30 days after either of the Feasts to save his Lease: but if the Clause in the Lease be, that if the Rent be behind for the space of 15 days next after either of the said Feast-days of payment; here the Tenant hath but 15 days only allowed him: and so the diversity is to be noted. If a Tenant in Tail let part Co. 1 par. Inst. f. 44. b. Vid. Lord Mountjoy's Case. Co. 5. l. f. 3. Anno 31, 32 Eliz. in B. R. of the Land accustomably let, reserving the Rent pro Rata or more, this is a good Lease for such Lands: or if the accustomable Rent were formerly payable at four Feasts, and now it is reserved and payable all at one Feast, yet it is good enough. If a man lease for Years, rendering 11 Jac. in B. R. Clun's Case. Co. 10 l. f. 227. See Hare & Savil's Case. M. 7 Jac. in C. B. Brownl. Rep. 2 part. p. ●73. V Hern's Law of Conu. p. 22, & 23. Rend at the Feasts of the Annunciation and Michaelmas, or within 15 days after; here if the Lessor die after either of the Feasts and before the 15 days be out, the Heir shall then have the Rent; for the disjunctive is added for the benefit of the Tenant; and the first day is but voluntary, but the legal payment is at the end of the 15 days: and if the Lessee before the day pay the Rent, this is voluntary, and not satisfactory; but it is good to give Seisin, if payment be in the Morning and the Lessor die at Noon; though this payment be voluntary too, yet it is satisfactory against the Heir. If a man lease for Years, rendering See Manley and Jennings Case. Pasch. 10 Jac. in C. B. Brownlo. Rep. 2 par. p. 176. Noye's Maxims p. 80. 6 E 6. Br. Tender 20. Rend at Martinmas and other Covenants, if the Lessee be bound in an Obligation to pay the Rent precisely; in this case he must seek the Lessor to pay him: but if he be bound to perform the Covenants, etc. he may then tender it upon the Land, (if no other place be agreed upon) and it sufficeth, for the payment is of the nature of the Rent reserved. Rend payable at a day, the 1 Mar. 172. b. Finch, l. 1. c. 3. p. 38. Noye's Maxims, p. 81. Vide Wade's Case. 43 Eliz. C. B. Co. 5. l. f. 111. Hern's Law of Conu. p. 30. party hath all the day till Night to pay it: but if it be a great sum, as 500 or 1000 pound, he must then be ready as long before Sunset as the money may be told; for the other is not bound to tell it in the Night. If a Parson let his Glebe to a Layman, the Lessee shall pay 32 H. 8. Bro. Dimes 17. Finch, l. 2. c. 1. p. 88 Tithes to the Parson besides the Rent, because they are of common Right. If a man make a Lease for See Clun's case. 11 Jac. Co. 10. l. f. 227. Years, rendering Rend at the Feast of St. Michael; in this case if the Lessor die on Michaelmas-day in the morning, if the Rent be unpaid, the Heir shall have it; but if the Tenant pay it that morning before the Lessor die, the Executors shall then have it. If a man lease a Stock of Co. 1 par. Inst. f. 47. b. & 292. b. F. N. B. 267. or other goods, rendering Rend at several days, he shall not have at Action of Debt till all the days be expired; and so it is upon an Obligation; for these are personal Contracts: but in case of a Lease for Years, which is a real Contract, it is otherwise; for there the Lessor may have an Action of Debt after every day, or he may distrain. A man is not bound to pay an Annuity without an Acquittance, See in Pennant's Case, 38 Eliz. Co. 3. l. Perkins, 780. but a Rent-service or Rent-charge he is. If the King make a Lease, Vide in Co. 4 lib. Borou●hs's Case, 38 Eliz. in B. R. Co. 1 par. Inst. f. 201. b. An●●ee Goldsbor. Rep. p. 124▪ pl. 9 Hern's Law of Conu. p. 27. rendering Rend, without limiting any place or to whose hands, the Lessee may either pay it to the Exchequer, or to the Bailiffs or Receivers of the King: when a Common person appoints no place of payment, the Law appoints it to be upon the Land, and there the Demand must be made, as is showed afterwards in this Chapter. If two joint-tenants be, and they make a Lease for Years by 5 E 4.4. Co. 1 part Inst. f 47. a. Co. 8 l. f. 70, 71. paroll or Deed-poll, reserving a Rent to one of them; yet this shall enure to them both: but if it be by Deed indented, it shall enure to him alone by way of Conclusion. If a Lease be of Land and Trin. 35 H. 8. Dyer 56. 2 Mar. Dyer 100 and see 20 El. Dyer 361. Sheep, and the Sheep die, or part of the Land is surrounded with the Sea; some are of opinion that the whole Rent shall issue out of the rest. Tamen quaere. If a man lease Land and die See Goldsbor. Rep. p. 98. pl. 17. Trin. 30 El. Vide Herne's Law of Conu. p. 22, & 24. before one of the Rent-days, the Heir shall have the Rend due at the next day after his death; but if there were any Rend arrear at the Rent-day before the Lessor's death, the Executors or Administrators shall have that, and may either distrain or have an Action of Debt for it. The Lessor upon a Lease at Co. on ●it. f. 57 b. Will may distrain for Rend arrear; but if he impound the Distress in the ground let at Will, the Will is then determined. Upon a Lease for Years a man may reserve the Rent to be Co. 1 part Inst. 142. a. and see Perkins, 696. in the delivery of Hens, Capons, Geese, Turkeys, Oxen, Sheep, Roses, Spurs, Bows, Shafts, Horses, Hawks, Pepper, Cumine, Wheat, or other profit that lieth in Render, Office, Attendance, and such like, as well as in paying of Mony. If the Heir make a Lease for 7 H. 5.4. Co. on L●●t. f. 42. a. Life reserving a Rent, against whom the Mother recovers her Dower and dieth, the Lessee shall have the Land again for his Life, and the Rent is revived. The Acceptance of the Rent 22 H. 8. Br. Acceptance 14. upon a void Lease will not make the Lease good again; but Vide Browning's Case. Pl. Co. 136. if it be only voidable, it wil The Acceptance of a Redemise to begin presently, is a Suspension Noye's Maxims, p. 70. of the Rent before any Entry; but otherwise if it be to begin in futuro. Acceptance of a Rent which See Co. 3. l. in Pennant's Case there. is not in Esse nor due to him that accepts it doth not affirm the Lease: as where Lands are given to the Husband and Wife, and the Heirs of the body of the Husband, and he leases the same and dies, and the Issue accepts the Rent of the Lessee in his Mother's life, and after she dies; now the Issue may avoid the Lease, for when he accepted the Rent, it was due to his Mother, and not to him. If the Successor of a Parson ●4 H. 8. B●. ●eases 19 ●● H. 8. Br Dean ●0. Leases 52 See Co. 3. l. fo. ●5, 66. in Pennant's Case See Revel & Ha●●'s Case. Goldsb. Rep. pa. 138. pl. 44. or Vicar accept the Rent of a Lease for Years made by his Predecessor, yet it is worth nothing; for the Lease is void by Death: but it is otherwise of a Lease for Life. But if the Successor of a Bishop, Co. ibid. 2 F. 6 Br. ●eases 33. 32 H. 8. Dyer 46. Abbot or Prior, accept the Rent upon a Lease for Years, he shall never avoid it, for it was but voidable only, and his acceptance hath now confirmed it. If he that hath Rent-Service See Hopkins & Mo●●on's Case vouched in Pennant's C●. Co 3. l. Hern's Law of Conu. p. 40. Co. 1 par. Inst. f. 373. a. 11 H. 4. 55. 10 Eliz. Dyer 271. or Rent-Charge accepts the Rent due at the last day, and gives an Acquittance for it, all the Arrearages due before are thereby discharged. If Tenant in Tail make a Lease for 40 years, to commence Pl Co. f. 437. a. Co. 1 par. Inst. f. 46. b. 10 years after his Death, rendering Rend, and after he dies, and the Issue enters and enfeoffs B, the 10 years expires, & then the Lessee enters; if B. accept the Rent, the Lease is good. If the Husband and Wife let the Land of the Wife for years, Tamen quaere. P. 5 Mar Dyer 160. and see 4 Ma●. Dyer 141. Gough's Case. rendering Rend, and after the Husband dies, and she before any day of payment takes another, who accepts the Rent and dies; by this the Lease is affirmed. If Tenant for Life lease Lands for years and dies, the Lease is void, and the Rent reserved upon the Lease is determined, and Acceptance by him in Remainder will not make it good; for when it is once void by Death, no Acceptance after will make it good. If the Husband and Wife let the Lands of the Wife for 3 H 6. f. 22 H. 6. f. ibid. 21 H. 6.24. & Kitchen p 234. B. Terms of the Law, verb. Acceptance. years, rendering Rend, and the Husband dies, if the Wife accept the Rent, it is a good Lease. If Tenant in Dower lease for years and die, the Lease is void, ●● H. 8. Br. Tit. Auncest. 14. and Acceptance of the Rent by the Heir will not make it good again. If a man seized in Fee let for 1 F. 6. Br. 18 and see finch's Law l. 1. c. 4. p. 68 10 years, and after selleth the Land, and taketh back an Estate to him and his Wife, and then the Husband and Wife let for 20 years, reserving Rend, and the Husband dieth, the Wife accepts the Rent during the first 10 years; in this case the second Lease is not affirmed, for 21 Eliz. 563. Philip's Prin. of Law, p. 164. the Acceptance of the Rent before the Lease beginneth, and so before any Rent be due, is no Acceptance at all. A Lease for Years may be Noye's Maxims, p. 78. confirmed for a time, or upon Condition, or for a piece of the Land; but if it be a Franktenement, it shall enure to the whole absolutely. There is a diversity between See in Pennant's case, 38 ●liz. Co. 3. l. f. a Lease for Life and for Years. In case of a Lease for Life, though the Conclusion of the Condition be that it shall be void, yet acceptance of the Rent due after the breach doth affirm it and make it good again; for the being created by Livery cannot be determined before Entry. If a Prebend lease for 70 years, and Patron Dean and See hoards Ca 37 ●l in C. B. Co. 5. l. f. 81. Chapter confirm the Demise aforesaid in form aforesaid made for 51 years and no farther; this is a Confirmation of all the Term: but if they had recited the Lease, and confirmed the Land for 51 years, this had been good. But by whatsoever words they confirm a Lease for Life, or Gift in Tail for part, this shall confirm all, because they are entire. If the Tenant of the Land and a Stranger join in a Lease for Co. 1 p●r●●●st. 〈…〉 H. 4. 1. 27▪ 〈◊〉. 8.16. Years by Deed indented of the same Land, this is the Lease of the Tenant only and Confirmation of the Stranger; and yet the Lease as to the Stranger works by Conclusion. If two several Tenants of several Co. ibid. Lands join in a Lease for Years by Deed indented, these be several Leases, and several Confirmations of each of them, and work not by way of Conclusion. If B, who is Tenant for Life Co. ib●●. Vid. T●●port's case, M. ●7 El. in B. R. Co▪ ●. l. f. 15. Vide Ellis▪ & Chowne's case 44 ●l. in C. B. Rot. 1459. of C, and he in the Remainder or Reversion in Fee, make a Lease by Deed indented; in this case this is the Lease of B during the Life of C, and the Confirmation of him in Remainder; and after the Death of C it is then the Lease of him in Remainder, and Confirmation of B: and in this case there is no Conclusion. If Tenant for Life and he in Remainder in Fee▪ make a Lease Co. 1 par. Inst f. 45. a. 2● H. 8. 〈…〉. See Bredon's case 39 & 40 ●liz. 〈◊〉 1. l. f. 76. 〈◊〉 Dyer 234. by Deed indented, and the Lessee be ejected during the Term in the Life of Tenant for Life, he must then declare in his Action of a Lease from Tenant for Life; and if it be after his Death, he then must declare of a Lease from him in Remainder. If Cestui que use make a Mich. 35 H. 8. Dyer 58. Lease for 20 Years the first of May, to begin at Midsummer, and the Feoffees make a Lease the second of May for 30 years to the Lessee, to begin at Midsummer also; this is no Surrender of the first Lease, but it shall enure as a Confirmation for 20 years, & a new Lease for 10 years. If a Parson let a Lease for Vide Co. 1 part Inst. f. 300. See Dyer 69. See Parson's Law, chap. 4. Philipps Pr. of Law, p. 78. Years of his Glebeland, if it be confirmed by Patron and Ordinary, it shall bind the Successor; otherwise not. If Tenant in Tail lease his 32 H. 8. Br. Acceptance 13. Lands for 20 years, rendering Rend, and die, and the Lessee leases to another for 10 years, and the Issue accepts the Rent of the second Lessee; this is no Affirmance of the Lease, for there is no privity between the second Lessee and the Issue: contrary, if he accepts it of him as Bailiff of the Lessee. But if the first Lessee had Bro. ibid. leased over all his Term in parcel of the Land let, and his Assignee pays the Rent to the Issue in Tail, who accepts it; this affirms the entire Lease; for Rent upon a Lease for Years is not apportionable. If a man make a Lease to one Dr. & Stud l. 2. c. 20 f. 93. b. for Life, and after confirm the Estate of the Tenant for Life, the Remainder over to A B in Fee, this is a void Remainder notwithstanding the intent, for no Remainder can depend upon an Estate, but where the Estate gins at the same time when the Remainder doth; and in this case the Confirmation neither enlarged the Lessee's Estate, nor gave him a new one. But if a Lease be made to Dr. & Stud. l 2. c. 20. p. 93. b. one for another man's Life, and after the Lessor confirms the Estate to the Lessee for the Lessee's own life, the Remainder over; this is good, for here the Estate is enlarged. If a man let Lands for Years S●e Cibill and Hill's Case, M. 30 Eliz. n C. B. Leonard's Rep. 110. Vid Noye's Max. p. 70. & How & ●r●om, Hil. 43 El. 〈◊〉 ●ep. p. 125 pl. 15. & p 114. pl. 6. Her●e's Law of Conu. p. 118. See in Walker's Case, Co. 3. lib. & see Goddard's Case, Mich. 34 El. Com. B●●co. Owe●'s Rep. f. 10. or Life, reserving Rend, and do enter into any part thereof and take the profit, the whole Rent is thereby extinguished, and shall be suspended during his holding thereof. If there be two Joint-tenants M. 2, 3 ●li●. Dyer 187. & Finch l. ●. c. ● p. 13. for Life, and one let his part for years, rendering Rend, and dies; the Term shall continue against the Survivor, but the Rent is gone. If a man have a Lease for P●r Whorwood & Hales. Br. extinguishment 54. ●eases 63. Surrender 52. Years, as Executor to A, and after purchases the Reversion of the Land in Fee; the Lease is extinct, and yet it shall be Assets in the hand of the Executor. It behoveth such persons as Co. 1 part Inst. f. 20●. b. 40 Ass. 11. Noye's Maxims, p. 83. Marche's Rep. p. 147. pl. 218. But note, it may be covenanted that the Lessor shall re-enter without Demand, if both parties please. will re-enter upon their Tenants, to make demand of the Rent at the House upon the Land, if there be one, (if the payment be not appointed elsewhere by the Agreement of the parties) where the Lessor himself or his sufficient Attorney, a little before Sunset, in the presence of 2 or 3 sufficient Witnesses, shall say, Here I demand of R. A. 10 pound due to me at the Feast of St. Martin the Bishop last passed, for a Message, Barn, etc. which he holds of me in Lease by Indenture for 20 years, bearing Date, etc. and so remain there upon the Land the last day that the Rent is due to be paid, until it be dark, that he cannot see to tell the money. But note, this Demand must 49 Ass. 5. 15 ●l. Dyer f. ●29. Perkins 838. be made at the Fore-door of the House, and not at the Backdoor; Co. 1 part Inst. f. 201. b. 153. a. b. Herne's Law of Conu. p. 28. for if it be, it is not good, because the Demand must be at the most notorious place, and it is not material whether any person be there or no: and if the Lessee be in the house, and the door open, yet the Lessor need go no farther than the Fore-door. If there be no House, the Dyer 329. 15 El. Perkins 838. Co. 1 part Inst. f. 202. a. & 49 Ass. 5. See a pretty Case in Poph. Rep. 58. upon a Lease of two Barns, & the ●essor demanded at the one, & the Lessee did tender at the other, and it was held to be a good Tender to save a Reentry. Demand must be made at the most notorious place of the Land, as at some Highway leading through the same; for if it be either at the backdoor of the House, or some obscure place in the ground, it is void, and the Lessor shall not take advantage by such Demand for Reentry, or breach of any other Condition. If the Rent be reserved to be paid at any place from the See Kidwell's Case, Pl. Com. f. 70. & Boroughs' case, 38 El. in B. R. Coo. 4. l. f. 73. Co. 1 part instit. f. 202. a. Land, yet it is in Law a Rent, and the Lessor must demand it at the place appointed by the parties, observing the Rules aforesaid of the most notorious place. But if the Lessee come to the Co. 1 part Inst. f. cod. Perkins 837. Herne's Law of Conu. p. 29. Lessor at any place upon the ground at the day of payment, and tender his Rent to the Lessor, this is good enough, and shall save the Condition, and the Lessor is bound to receive it, although it were not at the most notorious place, nor last instant of the day; for he may tender it at any time of the day, though the last instant be the legal time of payment. But this Tender must be of Tr. 23 Car. in B. R. Regest. Pract. p. 327. the whole Rent, without deduction of Taxes or Assessments, or other Charges. Co. 1 part Inst. f. 202. a. 20 H. 6.30. See Pl. Com. ●ill. and Grange's case, f. 167.172. and Cranly and Kingswell's Ca Pasc. 15 Jac rot. 710. Hobart's Rep. f. 207. Hern's Law of Conu. p. 25, & 26, & 29. 6▪ H. 7.3. Where one leases Land to another for Years, rendering Rend of the Land at the Feasts of St. Ellenmas and Martinmas, or within 15 days, and for default of payment to re-enter; in this case it is satisfactory and lawful for the Tenant to tender it the last hour of the last day, if the money may be told in that time; and so it sufficeth for the Lessor to demand it the same hour. If a man grant a Rent-charge Vide Trin. 36 Fl. Thine & Cholmley's case▪ Goldsb. Rep. p. 186. See Sir Jo. Spencer & Sir John Poynes case, Tr. 5 Jac. in B. R. Godboks Rep. 154 & Remmington & Kingerbies' case, 18 Car in B. R. in Styles Rep. 4. Sir Rich. Grobham and Thornborough's case. Hobart f. 82. to another with Condition, that if the Rent be behind for ten days after any Rent-day, that the Lessee, the Executors, etc. shall pay 3 4d for every day until the aforesaid Rent so behind shall be satisfied; in this case the Rent must be demanded, or otherwise the Nomine Poenae shall never be recovered. Hobart foe 133. Howel's Case. If a Lease be made upon Pennant's case, 38 ●l. Co. 3. l. 65. Vid. Green's case, 18 ●l. in B R. Leon. Rep. 262. & March & Curtie's case 40 El. C. B. ro●. 1302. vouched in Pennant's case. Co. 1 par. Instit. f. 211. b. Pl. Com. fo. 133. Hern's Law of Conu. p. 26, & 94▪ Condition of Nonpayment to re-enter, if the Lessor distrain he may not re-enter, but he may accept of the Rent, and yet re-enter; but if he receive the next Rent again, than he cannot, for that establisheth the Lease. Entry into an Acre in the name of all is good enough, if the Land lie all in one County. If a Lease for Years be rendering 38 ●l in Pennan●'s case. Co. 3. l. f. 65. & see 40 ●l. in C. B. Rot. 1302, in March & Curtie's case vouched there. Hughes' gr Abr. 1 part, p. 14. C. 10. Rend, with Condition that if the Lessee assign his term, the Lessor may re-enter; the Lessee assigneth, and the Lessor receiveth the Rent of the hands of the Assignee, not knowing of the Assignment; now notwithstanding the acceptance of the Rent, yet the Lessor may re-enter if he please, for the receiving the Rent ba●s him not, because he knew not of the Assignment. In a Lease for Years, if the 28 H 8 Dyer 7. Hughes' gr. Ab. 1 par. pa. 240. C. 1. Lessee covenant that if he, his Executors or Assigns, do alien, that then the Lessor shall re-enter, and afterwards he makes his Wife Executrix and dies, who takes Husband again, and he alienes; in this case the Lessor may re-enter, for the Husband is Assignee in Law. A Lease which is only voidable, 21 Car. B. R. Styles Regestum Practicale, p. 196. Vide Hanson & Norcliffs case, Hil. 18 J●c. & Amphurst & Palmer's case, P. 19 Jac. Hobart 331. and not absolutely void, must be made void by the Lessor's entry; but if it be absolutely void, there needs no Entry. If a man make a Lease for Years yielding to him and his Dr. & Stud. l. 1. c 20 p. 35. a. See the Clerk of Assize▪ p. 56. Heirs a Rent, upon Condition that if it be behind by the space of 40 days, etc. that then it shall be lawful to the Lessor and his Heirs to re-enter, the Rent is behind 40 days, etc. and is demanded by the Lessor, (as it ought by Law) and is not paid, and now the Lessor dieth; in this case his Heir may enter, for a Title of Entry descends. But if the Lessor had died after Dr. & Stud. l. 1. c. 20. p. 35. a. Cl. of Assize, p. 57 the Feast-day and before the 40th day, and the Heir there makes a Demand at the 40th day; in this case he may not enter for nonpayment: ideo nota. If a Lease be made to A and Tooker's case, 43 El. Co. 2. l. f. 39 B for their Lives, and after the Lessor grants the Reversion to C for his Life, to which Grant A attorns, and after by his Deed surrenders to C all his Interest and Estate and dies; in this case C may enter and hold in common with B. If a Lease be made to A for Life, and after the Death of B Vide M. 2●● 3. 87. Tr. 1 H. ●. 31. & Perkins 52. And see ●9 ●l. in Boraston's case. Co. 3 lib. f. 19 32 H. 6. Tit. Feoffment & Faits, 99 & Co. on ●●. f. 378. a. See the Clerk of Assize, p. 60. & Herne's Law of Conu. p. 8▪ Kitchen, f. 155. a. the Remainder to another in Fee; in this case if A die living B, the Remainder is void: and so if a Lease be made to R for Life, the Remainder to the right Heirs of IS; this is good if R outlive IS, otherwise it is void. If a Lease be made to A for 9 El. Dyer 254. & see Pl. Com. 190. Trin. 8 Eliz. Cecil's case. Dyer 253. 41 years, if he live so long, and if he die within the aforesaid Term, that then the Wife of the aforesaid A shall have it for the residue of the said years; this Limitation is void, for if A die the Term ends, and the Wife shall have nothing. If a man have an House for 40 years, and devise the House Pasch. 14 El. Dyer 307. to IS without limiting any Estate; the Devisee shall then have the entire Term, for he may not have for Life, nor at Will, nor for lesser Term of years. But if a man have a Term of 30 years, and grants so many of Br. Leases 66. & see the Rector of Cheddington's case, 40 El. Co. 1. l. f. 153. them as shall be behind at his death; this is void for the incertainty, for he may live till all be out, and then nothing remains. If a man let all his Meadow See Dyer f. 80. in the questions there for the L. Willoughby. in D, containing 10 Acres; in this case, if there be 20 Acres, all pass. There needs no Livery and Litt. l. 1. c. 7. Vide Herne's Law of Conu. p. 35. Seisin upon a Lease for Years, but the Lessee may enter when he will; and if there be Livery and Seisin upon such a Lease, to have according to the effect thereof, this Livery is void, and the Lessee shall but have an Estate for Years. A man makes a Lease for Years, and after makes a Deed Co. 1 part Inst. f. 48. b. See Bettiswor●h's case, 33 ●l. in C. B Co. ● l. f. 31. & see Herne's Law of Conu. ubi suprá, & p. 3●. of Feoffment, and delivers Seisin, the Lessee being upon part of the premises, and not knowing nor assenting to it, this Livery is void; for though the Lessor hath the and Inheritance in him, yet the possession is in the Lessee, and Livery must be given of the possession: but if the Lessee be absent, and hath neither Wife nor Servants (though he have ) upon the ground, than the Livery shall be good. If a man let Lands or Tenements Lit. l. 1. c. 7. Vide Philipps ●r. of Law, p. 94. by Deed or without deed for Term of Years, the Remainder over to another for Life, in Tail or in Fee; in this case Livery of Seisin must be given by the Lessor to the Lessee for Years, otherwise nothing passeth to them in Remainder: the Reasons you have before in this Chapter. If the Lessee enter before Livery and enjoy, than the Co. 1 part Inst. f. 49. b. and the Reversion are still in the Lessor, and he cannot then make Livery to the Lessee after Entry; for he is then in possession, and Livery cannot be made to one in possession. The Statute of the 21 of H. 8. cap. 15. gives liberty and Co. 1 part Inst. f. 46. a. & rastal's Recoveries 2. f. 371. a. Wingate's Abr. Stat. p. 405. power to falsify all Recoveries that shall be had against the Tenant of the through the Knavery of the Lessors, intending thereby that the Lessees shall be outed before their Term be out; whenas perhaps they paid a great Fine at their Income, and so it were an hard case if they should lose their Terms upon such Recoveries by Collusion. CHAP. IU. Of the Dates, Commencements, Continuance, and Determinations of Leases. LEases for Life or Years are Co. 1 part Inst. f. 45. b. of Three natures. Some be good in Law; some voidable by Entry; and some void without Entry; some in futuro, and some in praesenti: of all which you have several Examples in this little Treatise. If a Lease be made for 3 See Clayton's case, 37 Eliz. in C. B. Cook 5 lib. f. 1. 12 Eliz. Dyer 286. 14 Eliz. Dyer 307. Co. 1 part Inst. f. 46. b. Noye's Maxims, p. 66. But see Osborn and Rider's case, H. 13 Jac. in B. R. Cro. 2 part, 135. See Barwick's case, 39 El. in the Exchequer. Co. 5. l. fo. 93. Hern's Law of Conu. p. 14, & 15. years' beginning from henceforth, and is delivered the 19 day of June 1663.; in this case the day must be taken inclusiuè, and the Lease must end the 18 day of June in the third year after. But if a Lease be made to hold from the day of the making, or from the day of the Date, or from the Date; here the Lease shall begin the day after it is delivered, and the day of the delivery is exclusive; and so note the diversity. If the Habendum of a Lease Co. 1 part Inst. ibid. Herne's Law of Conu. p. 15, & 131. be for the term of 21 years, without mentioning when it shall begin, it shall then begin from the Delivery. If an Indenture of Lease Co. ibid. See Goddard's Case, 26 Eliz. Co. 2 l. f. 5. See M. 8 Jac. B. R. Osley & Sir Bap●ist Hicks' Case. Cro. 2 part 263, 264. there being pretty matter concerning the Date and Delivery of a Deed. Herne's Law of Conveyances, ubi suprá, & pa. 1●2. bear date the 30 Febr. or 40 of March, which is impossible; in this case if the term be limited to begin from the Date, it shall then begin from the Delivery, as if there had been no Date at all. If Lands descend to an Heir, Noye's Max. p. 67. he may make a Lease thereof before his Entry into the same. If a man make a Lease to one ibid. p. 68 26 H. 8. Bro. Lease 48. for 10 years, and the next day after make another for 20 years to another man; this second Lease shall be good for 10 years after the first is expired. If a Lease be made for 21 Co. 1 part Inst. f. 45. b. & see 40 El. in the Rector of Cheddington's case. Co. 1 lib. f. 154. and Herne's Law of Convey. p. 135. years, and after another Lease to commence from the end and expiration of the said term of years, and after the first Lease is surrendered; in this case the second Lease shall commence presently upon the Surrender: but if it had been to commence from the end of the said 21 years; there, though there had been a Surrender, yet it should not have commenced till the term had been out: and so note a diversity between Terminum Annorum and Tempus Annorun. A man cannot make a Lease See the 39 El. in Barwick's case. Co. 5. l. f 93. for Life to commence at a day to come, for he cannot make a present Livery to a future Estate; and therefore in this case nothing doth pass. If A seized of Lands in Fee do grant to B, that when he Co. 1 part Inst. f. 45. b. See many pretty cases in the B. of B●●he & Wells' case, Co. 6. l. f. 34, 35. pays him 20 s. that then from that time he shall have and occupy the Land for 21 years, and after B pays the 20 s; this is a good Lease for 21 years from that time, notwithstanding the Rule of Bracton, That every Lease must have a certain beginning and ending; Quia▪ ●d certum est, quod certum reddi potest. And so if a man leases Land 3. M. 1. Br. Leases 67. the end. to another till the Lessee hath levied 20 pound; this is a good Lease, notwithstanding the incertainty. If a man make a Lease to another Co 1 part Inst. f. 45 b. See Say & Fuller's case. for so many years as R. A. shall name, this at the beginning Pl. Co. Kitchen, p. 235. b. Vide Philipps' Pr. of Law, p. 36. is incertain; but when R. A. hath named the years, it is then good for so many years as he names. If A leaseth his Lands to B Co. 1 part Inst. f. 45. b. for so many years as B hath in the Manor of Sale, and B hath 10 years in it; this is a good Lease to B of the Lands of A for the said said 10 years. But if a Parson make a Lease Co. ibid. So resolved Hil. 26 El. Rot. 935. in C. B. of his Glebe for so many years as he shall be Parson there, this is void for the incertainty; for Terminus vitae est incertus, & licet nihil certius est morte, Brac. l. 2. c. 9 nil tamen incertius est horâ mortis. If a Parson make a Lease of his Co. ibid. Glebe for 3 years, and so from 3 years to 3 years so long as he continues Parson; this is a good Lease for 6 years, and void for the Remainder: but this must be understood, if he continue Parson so long. If a Lease be made to one See in the 40 El. in the Rector of Cheddington's ca Co. 1. l. for so many years as his Executors shall name; this is void for the incertainty. A Lease for a year, and so from year to year during the Noye's Max. p. 66. Life of R. A, is a Lease but for 2 years; and if the Termor stay longer, he is afterwards but Tenant at Sufferance. If I make a Lease to R. B. to 33 Ass. p. ●. 2 M. 1. Br. Leases 67. Co. 1 par. Inst. f. 42. a. hold the Lands till 100 pound be paid, and make no Livery of Seisin; he hath an Estate but only at Will, and may be put out at pleasure: but if Livery be given, he hath an Estate for Life, upon Condition implied, to cease upon the payment of the 100 pound. A Lease from year to year so 14 H. 8.16. Noy's Max. p. 66. Br. Lease 13.22. long as both parties please, is a good Lease after Entry in any year for that year, till warning be given to departed. If a Lease be made to A and his Assigns for his Life and the See Rosse's case, 41, 42 Fl. Co. 5. l. f. 13. Herne's Law of Conu. p. 12. Life of B and C; this is a good Lease for 3 Lives. But if a Lease be made for an See in Co. said 5. Book, in Brudenel'●c●. 34 ●l. in B. R. & see Brownl. 2 part, p. 292. hundred years, if A and B live so long; in this case, if either of them die, the Lease is ended. A Lease rendering Rend to See Co. 5. l. f 111. in Mallery's ca 43 Eliz. Herne's Law of Conu. p. 142. one and his Heirs, or his Heirs alone, but of a Feoffment Tenendum to one or his Heirs, is but an Estate only for the Life of the Feoffee. If a man make a Lease to See 3 Jac. Savin's ca in C. B. Co. 5. l. f. 123. commence after the end or determination of a former Lease in esse, and after the first Lease is out, and the second Lessee entereth not, but he in the Reversion enters, and makes a Feoffment, and levieth a Fine with Proclamations, and 5 years pass without Entry or Claim of the second Lessee; in this case the Fine bars him: for the Stat. 4 H. 7. c. 24. speaks of Interest, and a Lease for years is an Interest within the Statute. If an Infant, who is seized of Co. 1 part Inst. f. 45. b. Land held in Soccage, make a Lease at his age of 15; this is good, and shall bind him. If Tenant in Tail make a 10 E. 3.26. 34 Ass. 15.23 E. 3. Dower 130. Co. 1 part Inst. f. 46. a. Lease for Years according to the Statute, rendering Rend, and die without Issue; now as to him in the Reversion the Lease is void; but if he endow the Wife of that Land, it shall be good against her: or if Tenant in Tail die without Issue, his wife enseint with a Son, and he in Reversion enters, and after the Wife is delivered; in this case the Lease is again revived, although it were once void by the Entry of him in Reversion. Nota. If Tenant in Fee take a Co 1 part Inst. f. 46. a. Wife, and make a Lease for Years, and after die, and the Wife is thereof endowed; here she shall avoid the Lease, but after her Death it shall be in force again against the Heir. If an Husband have a term of years in Right of his Wife, Idem ibid. b & fo. 35●. ●. Mich. 26, 27 El. adjudged in bo●h Court - int●r Amnor & Loddington. And ●●e 7 Jac. in Manning's case. Co. 8. l. f. 94. if she die, it remains to him; but if she survive him, it remains to her, and not to his Executors, without he make disposition of it in his life-time, 14 El. Pl. Com. 419. If a man lease for Life to I. S, and the next day leases to W. B. 37 H. 8 Br. Leases 48. the end. for 20 years; the second Lease is void, if it be not a Grant of a Reversion with Attornment; for in Law the is more worthy and perdurable than a Lease for Years: yet if the Lessee for Life die within the Term, the Lease for Years is good for the rest of the years to come. If a man licence another to Brownl. 2 part, p. 250. 10 E. 4. f. 4. 5 H. 7. f. ●. enter and occupy his Lands, this is a good Lease for Years in Law. If a man lease for 60 years, and so from 60 years to 60 ●l. Com. f. 273.29 H. 8. Br. Leases 49. years, until 200 years be ended; this is all the same Lease, and good for the term. If a man have a Lease for 32 l. Ass. 6. 500 years, it is but a Chattel, notwithstanding the long time. A Lease for Years, though it be never so long, cannot be H. l. 2● Car. in B. R. S●yles Regest. Practicale, p. 197. Entailed, for the nature of a Chattel cannot be turned into an Inheritance. If a man seized of Land in Co. 1 part Inst. f. 4●. ●. Vid. philipps ●●. of Law, p. 88 Fee-simple make a Lease of the same to another, To have and to hold the same for term of Life, and do not mention whose Life; in this case it shall be taken to be for the Lessee's Life; for the Act of every man shall be taken most strongly against himself. But if Tenant in Tail let Co. ibid. & f. 183. b. Finch, l. 1. c. 4. p. 60. such a Lease without expressing whose Life, it shall be taken to be for the Life of the Lessor. A Lease for a thousand days 14 H. 8. f. 1. Finch, l. 1. c. 5. p. 67. is a Lease for Years. A Lease for Years and a Release Finch, cod. loco. Co. Lit. f. 207. a. amounteth to a Feoffment. If joint-tenant make a Lease Finch, l. 1. c. 3. p. 97. Mich. 3 Eliz. Dyer, 187. Lit l. 3. c. 3. Co. 1 part Inst. f 185. a. & 186. a. b. But see Dyer f. 178. Harb●n & Bastons case. Goldsb. p. 187. pl. 100LS. for years of his part, though the Lessee never had possession, or though it be to begin at a day to come, and the joint-tenant which made it die before the day; yet the Survivor shall be bound by the Lease, for the Lessee hath a present Interest. But it is otherwise of a Grant Co 1 part Inst. f. 184. b. Finch, ibid. 5 El. Plo. 203. Brown●. ●● Com. 263. b. in Dame Hales case. to have a Lease, if the Grantee pay 10 pound before Midsummer next, and the joint-tenant which made the Grant die before the day; for here is no Interest at all, but a Communication till the money be paid. If a man let Land for Life, without saying more, the Reversion Finch, l. 2. c. 3. p. 113. ●it. of the Fee-simple is in the Lessor. If Tenants for Life or Years of Land make a Feoffment in Idem ibid. Br. Fo●is. 96. Fee, and give Livery, they forfeit their terms. If two take a Lease for their Lives, and make partition; either See Farrington's case. Dyer 67. & Cowells Inst. p. 199. of them dying, his part immediately reverts to the Lessor. If a Lease be made to a Feme sole for 40 years, if she so long See Sayer and Hardye's case. Goldsb. p. 179. pl. 112. live sole and continue unmarried; now if she die, the Lease is determined: or if I make a Lease for 40 years, if the Lessee dwell upon the thing let during the term; here if the Lessee die, the term is determined. But if it be a Lease for 40 years, if the Lessee dwell upon Idem in Save's & Hardye's c●se. the thing let during his Life; in this case if the Lessee dieth, the Lease continueth. If there be two joint-tenants Harbin & Barton's case, 30 El. Goldsb. Rep. 187. pl. 130. for Life, and the one make a Lease for 80 years, to begin after his death, and after dies; this is a good Lease against the Survivor. If a Lease be made to the Brownloes 2 part p. 206. the end. Dr. & Stud. l. 2. c. 33. f. 120. a. b. See Cowel's Inst. p. 193. Husband and Wife, yielding a greater Rent than the Land is worth; in this case if the Husband die, the Wife may refuse the occupation of the Land, and so be discharged of the Rent: but if the Husband overlive the Wife, and die, his Executors, if they have Asserts to pay the Rent to the end of the term, may not refuse the Lease; but if they have not Assetts, they may wave the occupation, and by special pleading discharge Finch, l. 1. c. 3. p. 31. 4 E. 6.68. b. See Co. 5▪ l. in▪ Brudenel's case. themselves. If a Lease be made to A and B for their Lives, in this case if either die, the other shall have all during his life, for it is an Interest. Philipps Pr. of Law, 131. If a Woman make a Lease at Henstead's case, 36, 37 El. C. B. Co. 5. l. f. 10. See M. ●7 El. in C. B. r●t. 16●4. Will reserving Rend, and after take Husband, yet the Lease at Will continues still: and if a 3 H. 8. Vid. Keilwaye's Rep. f. 162. & Terms of the Law, verb. Countermand. Feme sole, who is Lessee at Will, take Husband, yet the Lease at Will is still good. If Husband and Wife make a Lease at Will of the Co. 1 part of Inst. f. 55. b. Wives Lands, reserving Rend, and the Husband dieth, yet the Lease at Will continueth: and so it is if two make a Lease at Will to two others, if either one of the Lessors or Lessees die, yet the Lease is good. If Tenant at Will lease for Years in his own name, it is a 2● H. 6.3.22 E. 4. 5. Co. 1 par. Inst. l. 57 a. 12 E. 4.12. Disseisin, and the Lessor may have Trespass against the Grantee of the Lessee at Will. If a man lease to one at Will, 21 H. 6. f. 42. Kitchen, 237. a. and the Lessor dies, the Will is gone. If I let Lands in which are 9 E. 4. f. 37. per Needham. Mines or Trees, I cannot enter to take the Trees or Mines, but am a Trespasser, unless I reserve such a privilege to myself when I let the Lands. All Feoffments, Gifts, Grants Perkins 16. Co. on Lit f. 253. b. 14 Ass. pl. 20. Plo. 18. a. Vide Philipps, Principles of Law, p. 4. and Leases made by Duress of Imprisonment are voidable, and that not only by the parties themselves, but by their Heirs, and by those who have their Estates. If the Lessor come upon the Finch, l. 1. c. 3. p. 57 Vid. Hunt & Downam's case, Pasc. 16 Jac. B. R. C●o. 2 part, 478 ground leased, he is no Trespasser, for it shall be intended that he came to see if Waste were done. Although a Lessee for Years Styles Regestum Practicale. p. 198. Pasch. 1650. in B. R. do lose his Indenture of Demise of the Lands let unto him, yet he shall not lose his term in the Lands let by Indenture which is lost, if it can be proved any way that there was such a term let to him by Indenture, and that it is not determined: and so it is of any other Estate in Land, if the Deed that created the Estate be lost, if it can be sufficiently proved that there was such a Deed made, and that such an Estate was conveyed by Deed. If Tenant for term of years or any other Tenant be outed, or if they die, their Executors, or they if living, shall have reasonable time and free liberty to come and fetch away their Utensils and other goods out of the Lessor's House. CHAP. V Of Corn sown where the Tenant is outed, or the Term determines before it be ripe, who shall have it: and also of Estovers, and Trees blown down, etc. IF Tenant at Will sow the ●leta, l. 3. c. 13. Co. 1 part Inst. f. 55. a. 11 ● 4. f. 90. Vide Philipps Pr. of Law, p. 86. Land, he shall have free liberty to come and cut and carry away his Corn, although the Lessor put him out before it be ripe. But if Tenant for Years sow Co. on Lit. f. 55. a. b. Lit. ●h. Tenant at Will. See the Clerk of Assize, p. 60. the Land, and his term end before the Corn be ripe, the Lessor shall have it, without it be covenanted between them, that he shall have his way-going Crop, as they call it in Yorkshire: and the reason of this is, because the Tenant did know when his term would end, and it was his folly to sow Corn that would not be ripe till the term were expired. If Lessee at Will set Roots, or sow Hemp or Flax or any annual Co. ubi suprá. 18 E 4.18.10 Ass. pl. 6. profit, if after they be planted the Lessor out him, or if the Lessor die, yet the Lessee or his Executors shall have that year's Crop. But if he plant young Fruit-trees, Co. ubi suprá. Temps E. 1. Br. 25. or young Oaks, Ashes, Elms, etc. or sow the ground with Acorns, if he be outed by the Lessor, he shall have none of these, because they yield not present annual profit. Every Tenant that hath an Estate incertain shall have the Co. ibid. 7 Ass. 19 Corn sown by him, though he be ousted before it be ripe. Co. ubi suprá. 10 E. 3.29. See in Sir Henry Knivett & Pool● case, Goldsborough's Rep. p. 143. pl. 60. & Co. 5. l. f. 85. See the Clerk of Assize, p. 60. If Tenant for Life soweth the ground, and die before the Corn be ripe, his Executors shall have it, and Grass, if it be cut; but not Meadow unmown, for that is part of the Inheritance till it be severed. The like Law is of the Lessee Co. on Lit. f. 55. b. for Years of Tenant for Life. If a man be seized of Land in Co. ibid. 7 Ass. pl. 10. Perkins, 518. Swinburn's Wills, 3 part, sect. 6. p. 163. Dyer, 316. 8 Ass. 21. Vide Pacis Consultum, p. 83. right of his Wife, and sow the Land and die, his Executors shall have the Corn; but if they be joint-tenants of Lands, and the Husband soweth the ground and dieth, the Wife shall then have it. If A lease Land for the life of B, and sow the Land, and before the Corn be ripe Bodies, yet notwithstanding A shall have the Corn, for his Estate was determined by the Act of God. The same Law is of a Woman cowel's Inst. p. 141. Fulb. par. f. 37. b. Perkins, 513. Swinburn ubi▪ suprá. Tenant for Life or in Dower, who takes Husband, and he sows the Land, and before the Corn be ripe the Wife dies. But if a Woman who holds Lands durante viduitate suâ V Oland's Case, 44 El. in B. R. Co. 5. l. f. 116. & Co. on Lit. f. 55. b. Vid. Goldsb. Re. p. 189. pl. 136. Hern's Law of Conu. p. 239. sow the ground, and then take Husband, here the Lessor shall have the Corn: and so if Tenant at Will sow the Land, and then will occupy the Land no longer, he shall lose the Corn: and the reason of this is, because that the determination of their Estates grew by their own Act. A Lease made by the Husband Noye's Maxims, p. 70. Vid. Stat. 32 H. 8. ch. 28. alone of the Wife's Land is void after his death; but if the Lessee have sown the Land, he shall have the Corn. If there be Landlord and Tenant, and the Land is recovered Tr. 37 H. 6.35. Perkins, 515. Cowel's Inst. p. 142. by a Title paramount against the Landlord; in this case if the Tenant have sown the Land, he that recovered shall have the Corn, if it be not severed before Judgement. Note that to every Tenant Brac. l. 4. f 222, 231, 232. Fleta, l. 4. c. 19, 25, 26, 27. F. N B. 180. 21 H. 6.46. 10 F. 4.3. Vide ●u●terel's case, 43 Fl, in B. R. Co. 4. l. f. 86, 87. Terms of the Law, verb. Haybote, & verb. F●●●bote, and Housebote. Phili●s Pr. of Law, p. 65. for Life or Years the Law, as incident to his Estate, giveth him, without provision of the party, three kind of Estovers; that is Housebote, which is twofold, viz. Estoverium aedificandi & ardendi, that is, for repairing the Houses and burning; then Ploughbote, that is to say Estoverium arandi, that is, for mending his Ploughs, Harrows, Wains, and making Rakes and Forks for getting his Hay; and lastly Haybote, and that is Estoverium claudendi, and this is for repairing and mending his Stack-bars, Gates, Styles and Hedges: but these Estovers must be reasonable. Bote in the Saxon tongue and Estovers in the French tongue in this case are all of one signification, that is, to have Compensation or satisfaction for these purposes. These Estovers the Lessee Co. on Lit. f. 41. b. may take without the Assignment of the Lessor, unless the Lessee be restrained by special Covenant, for Modus & conventio vincunt legem. Estovers granted to be burnt Finch, l. 1. c 3. p. 15. 12 El. 381. 5 H. 7.1.7. gr. 58. P. 26 H. 8.4. Perkins, 104. Kitchen, f. 51. a. in such an House, shall go to him that hath the House by whatsoever Title; for one is inseparably incident to the other. If Tenant for Life or Years cut down Trees, or pull down Vide Co. 4. l. 31 El. in B. R. in Harlackenden's case there; & Co. 11. l. in Lewis Bowles' case, 13 Jac. Houses, or suffer them to fall, the Lessor shall have the Trees and Timber of the said Houses, for the Lessee had them only as things annexed to the Land, and he shall not have a greater Interest in them by this tortuous Severance. If Timber-Trees be blown down by the wind, the Lessor Vide Co. ubi suprà, & 16 El Dyer 332. F. N. B. 59 M. 20 E. 3. Wast 32. shall have them, for they are parcel of the Inheritance, and not the Tenant for Life or Years, unless it be to build withal, where Houses are in decay: but if they be Dotards without any Timber in them, than the Tenant shall have such when they are blown down. Lessee for Years or for Life, Co. ubi suprá. Noye's Max. p. 68 Tenant in Dower or by the Courtesy, have only a special Interest or property in the Trees, as a thing annexed to the Land so long as they are annexed thereunto; but if they or any other sever the Trees from the Land, than their Interest is determined, and the Lessor may take the Trees as things that are parcel of his Inheritance, the Interest of the Lessee being determined. CHAP. VI Of Distresses. Of what things a Distress may be taken, and how it must be used, etc. THE word Distress is a Co. on Lit. f. 96. a. French word, and in Latin it is called Districtio sive Angustia, because the distrained are put into a Straight, which we call a Pound. A Distress must be of a thing 14 H. 8. 25.2 F. 2. Tit. Distress. 6 R. 2. Rescous 11. Co. ibid. f. 47. a. Dr. & Stud. l. 1. c. 5. whereof a valuable property is in some body; and therefore Dogs, Bucks, Does, Coneys, and the like that are ferae naturae, cannot be distrained, nor an Horse when a man or woman is riding on him, nor an Axe in a man's hand cutting of wood, for they are for that time privileged. Neither can things which are 22 E. 4.36.7 H. 7. 1. b. 22 E. 4.49. b. for the maintenance and benefit Co. ibid. & Noye's Max. p. 43. Comp. Attorney, p. 124. Terms of the Law, verb. Distress. of Trades be distrained for Rent; as an Horse in a Smith's Shop, nor an Horse in an Inn, for the Rent thereof, nor the Materials in a Weaver's Shop for making of Cloth, nor Cloth or Garments in a Tailor's Shop, nor Sacks of Corn or Meal in a Mill, for the Rent of the Mill, nor any thing that the Lessee hath distrained for damage pheasant, for it is in the Custody of the Law. A distress may not be taken Co. on Lit. f. 47. a. 51 H. 3. Stat. de Districtione Scaccar. Bra. l. 4. f. 217. F. N. B. 90. a. Fleta, l. 2. c. 21. 14 H. 8. f. 29. Finch, l. 2. c. 6. p. 135. of Oxen of the Plough; nor a Millstone, though it be raised up to be picked, so long as it lies upon the other Stone; nor Sheep, if there be a sufficient Distress besides; neither may a man sever Horses joined together, or to a Cart. Nothing shall be distrained Co. ibid. 18 E. 3.4. a. 11 H. 7.14. a. 21 H. 7. 39 b. Terms of the Law, verb. Distress. of which the Sheriff cannot make a Replevin, or that cannot be restored again in as good a plight as it was at the time of the Distress taken. Victuals nor Sheafs or Co. ibid. 21 E. 4. 50. b. 2 H. 4.15. & Finch, l. 2. c. 6. p. 135. Shocks of Corn cannot be distrained: but Chariots or Carts with Corn may either for Rent or for Damage feasant. No man may be distrained Co. ibid. by the Utensils or Instruments of his Trade, as the Axe of a Carpenter, or the Books of a Scholar. Neither can Furnaces, Caldrons Idem, f. 47. b. 20 H. 7. f. 13. 3 E. 3. 21 H. 7.26 Ass. 49. 9 Finch, ubi suprá. Complete Att. p. 124. or the like fixed to the , nor Fats fixed for a Dier's pan, although the Lessee may remove them during the term, nor the Windows or Doors of the House whilst they are on the Hinges, etc. be distrained. But if they be removed from Finch, ubi suprá. off the Hinges, they may be distrained. The Lord cannot distrain 21 H. 7.26. Kitchen, 63. a. Tables dormant in the House of his Tenant, nor any thing which cannot be attached in an Assize. A man may distrain the Co. 1 par. Inst. f. 47. b. 7 H. 7.1 b. 10 H. 7.21. Beasts of a Stranger that come by Escape for Rent, though they have not been Levant and Couchant on the ground, saith my Lord Cook. The Lord may sell a Distress 3 H. 7. f. 4. Kitchen, f. 61 b. Vide Gomorsall and Wayt's case, M. 8 Jac in B. R. Cro. 2 part, 255. taken for an Amercement in a Court-Leet, as the King may sell the Distress, because it is a Court of the King's. The Lord cannot distrain 10 H. 7. f. 21. Kitchen, f. 62. a. another man's Horse in the house of one amerced, nor the Robe of another in a tailor's Shop, where the▪ Tailor is amerced. If a man distrain goods or Finch, l. 2. c. 6. p. 137. 9 E. 4. f. 2. ●. Kitchen, f. 207. b. Chattels, he may put them where he will, either in Pound covert or overt: but if they take any harm, he must answer for them. But if they be living Cattles Co. 1 part Inst. f. 47. b. Dr. & Stud. l. 2. c. 27. Compl. Attorney, p. 125. Fleta, l. 2. c. 20. F. N. B. 89. Terms of the Law, verb. Distress. they ought to be put in a common Pound, or else in some open place, as in his own Close, or another's by his consent, so that the Owner may come lawfully to feed them; and notice must be given to the Owner where they are, if they be not in a common Pound; and than if they die, it is in the Owner's Default: but if they be in a Pound covert, or out of the County, and die for want of meat, than he that distrained shall answer for them. taken Dammage-feasant ●0 H. 7. f. 39 Kitchen, f. 207. a. may be impounded in the same ground where they are Dammage-feasant; but goods or taken for other things may not. No man may drive a Distress Co. 1 par. Inst. f. 47. b. Marlbridg, c. 4. West. 1. c. 16. 2, 3 P. & M. c. 12. Vide Berdsley & Pilkinton's ca Goldsb. Rep. p. 100 pl. 5. & p. 145. pl. 62. Partridge & Naylor's ca See Mich. 24 El. in C. B. Godbolt's Rep. 11. Rastall Tit Distresses 11. Wingate's Abr. p. 133. out of the County where it is taken, nor out of the Hundred, but to a Pound overt within 3▪ miles; neither may a Distress be impounded in several places, nor above 4 pence taken for the Fees of impounding one whole Distress, on pain of 5 pound. If a man distrain Beasts Dammage-feasant, and put them in Dr. & Stud. l. 2. c. 27. the Pound overt within the same County not above 3 miles out of the Hundred, and the Owner suffers the Beasts to die for lack of meat; then he that distrained them is at his liberty to take his Action of Trespass. If the Owner of the Idem ibid. & Kitchen, f. 207. b. tender amends to him that distrained, and he refuse it, yet the Owner may not take his out of the Pound; for if he do, a Parco fracto lieth against him. But after such tender he may Idem ibid. sue out a Replevin, to have them out; and if it appear, when they come to a Trial, to the Jury that the Tender was sufficient, than the Owner shall recover Damages in the Replevin against him that distrained, for detaining the goods; and if on the contrary it appear that the Tender was not sufficient, than the Avowant, that is he that distrained, shall have such Amends as the Jury shall assess. If after such Amends tendered Dr. & Stud. l. 2. c. 2●. Ki●chin▪ f. 207. b. the die in such Pound overt, the Owner shall be at the loss, by reason of the wrong done at the beginning, to see that they shall have meat so long as they be in Pound. But if the Owner of the procure a Replevin to Idem ibid. deliver them, and he that distrained resists it, and will not deliver them; in this case, if they die after for want of meat, it is at the peril of him that distrained, and the owner shall recover Damages against him in an action upon the Statute, for disobeying of the King's Writ. If I send my Servant to take Complete Attorney, p. 193. 21 F. 4. f. 19 Kitchen, f. 208. b. a Distress for a Rent or Service, who puts it in the Pound, if the Owner of the Beasts or a Stranger take them out, I shall have a Parco fracto; for it is my Pound, and not my Servant's. If I impound taken Idem ibidem. F. N. B. 100 Finch, l. 4. c. 16. p. 310. upon a Distress in a friend's Close with his licence, and the Owner of the take them out; in this case I shall have a Parco fracto, and my friend an Action of Trespass for breaking his Close. CHAP. VII. Who may take a Distress, and for what cause, and when, and where. A Man may distrain of common right for Rent-service, Co. 1 part ●n●t. 204. b. 205. a. 30 Ass. pl. 8 17 E. 3. 7 Co. lib. 4. f. 73. Philipps pr. of Law, p. 26. Dr. & Stud. l. 2. c. 9 Homage, Fealty, Escuage, Suit of Court, etc. or for a Rent reserved upon a Gift in Tail, Lease for Life, Years, or at Will, though there be no clause of Distress in the Lease. But for Debt, Account, Dr. & Stud. ib. Trespass, Reparations, etc. a man may not distrain. It is a Maxim in Law, that 20 E. 3. Avowry 1●1. 25 H. 6.37. Bract. fo. 230, & 238. Co. 1 part Inst. f. 96. a Brit. f. 100 no Distress can be taken for any Services that are not put into certainty, nor can be reduced to any certainty; for id certum est quod certum reddi potest, for oportet quòd certa res deducatur in Judicium: and upon the Avowry Damages cannot be recovered for that which neither hath certainty nor can be reduced to certainty. And yet in some cases there may be a certainty in an incertainty: 7 F. 3.38. & Co. ubi suprá. as a man may hold of his Lord to shear all his Sheep depasturing within the Lord's Manor; and this is certain enough, although the Lord hath sometimes a greater number and sometimes a lesser number there; for this incertainty being reduced to the Manor, which is certain, the Lord may distrain for this incertainty: & sic de similibus. A Distress is inseparably incident Co. 1 part Inst. f. 150. b. 151. b. to every Service that may be reduced to certainty, as aforesaid. A man may not distrain for 10 E. 3 Avowry 137. 11 H. 7.5. Co. on Lit. f. 47. b. & 142. a. Rent after the Lease is ended, nor out of his Fee, except in some special cases, nor in the Night, unless it be Dammage-feasant. The Executors or Administrators of him which had Fee-farm Noye's Max. p. 45. Vide Rastal T●. Ren●s. 32 H. 8.37. c. Wing●te's Abridgement of the Stat. p. 407, & 408. Co. ●n Lit f. 162. a. & Co. 4 l. f. 4●. in Ognell's case, ●9 ●l. in Fee, in Fee-Tail, or for Life, may either have an Action of Debt against the Tenant that should pay it, or distrain for it: and so may the Husband after the death of his Wife, his Executors or Administrators, and he which hath Rend for another's Life for the Arrearages after his Death. If a man put into my Noye's Maxims, p. 4●. Pasture for a week, and afterwards I give him notice that I will keep them no longer, and he will not fetch them away; I then may distrain them Dammage-feasant. If a man take Dammage-feasant, 2 E. 3. Rescous 12. Co. 1 part of Inst. f. 161. a. Compl. Att. p. 196. and as he is driving them to the Pound, they run into the Owner's house, who refuses to let them out again; here he that distrains may have a Writ of Rescous against the Owner for so doing. If the Lord come to distrain, Noye's Max. p. 46. Co. 1 par. Inst. f. 161. a. 6 R. 2. R●s. 11. 11 H. 7.4. 21 H. 7.40. Co. 9 l. f. 22 in case de Avowry, & Terms of the Law, ●e●b. Distress. 44 F. 3. f. 20. & F. N. B. 102. and see the , and the Lessee or his Servants drive the Beasts out of his Fee; here the Lord cannot have Rescous, because he had not the possession, but he may follow and distrain them in another's ground, but not for Dammage-feasant, for they must be Dammage-feasant at the time of the taking. If a man take a Distress of Clayton's Rep. p. ●4. pl. 111. goods, and shows no cause for what, if they be put in an house, the Owner may break the house and take them out. If a Distress be taken of 4 E. 6. Tit. Dist●esses 74. F. N. B. 100 E. Co on Lit. f. 47. b. 9 E. ●. f. 35. 5 F. 4. f. 7. per Danby. 40 F. 3. f. 33. goods without cause, the Owner may Rescue; but if they be impounded, he cannot break▪ the Pound and take them out, because they are then in the Custody of the Law. If a man distrain for Co. ubi suprá. 3 E. 3 Tit. Trans. 11. & 34 H. 6.18. Dammage-feasant, and put them in the Pound, and the Owner that had Common there maketh fresh Suit, and finds the Door unlocked; he may then take them out: but if it be locked, he cannot justify to take them out. If Beasts driven by the Highway escape into another man's Dr. & Stud. l 1. c. 16 Cowells Inst. p. 231. Corn, he that driveth them is no Trespasser by his Entry to fetch them out again. If a man make a Feoffment reserving a Rent, he cannot distrain Dr. & Stud. l. 2. c. 9 without a Clause of Distress; and if the Feoffment be not by Indenture, the Reservation is void in Law: like Law where a particular Estate is made reserving a Rent, the Remainder over in Fee. If Tenant for Life grant his Dr. & Stud. ibid. whole Estate reserving a Rent, the Reservation is void, if it be not by Deed Indented, and without a Clause of Distress it is a Rent-seck, and he cannot distrain. For an Amercement in a Dr. & Stud. ibid. 10 H. 7. f. 15. ●4 E. 2. and 19 ●. 2. Avowry 221. Leet the Lord may distrain; and though the Distress be taken in the Highway, yet in this case it is lawful. A man cannot distrain for an Amercement in a Court Baron, Dr. & Stud. ibid. 47 E. 3. f. 12. Vide Kitchen, f. 61. b. Hughes' gr. Abr. 1 par●, p. 721. Co. 10. nor for an Amercement in the Leet in a place seized into the King's hands for the King's Debt, for it is for that time privileged. If a Lease be made at Michaelmas Dr. & Stud. ibid. & Vide Co. on▪ Lit. fo. 47. b. for a year, rendering Rend at the Annunciation and Michaelmas, the Lessor may distrain at the Annunciation, but not at Michaelmas, because the term is expired. If Tenant for another's Life make a Lease for Years reserving Dr. & Stud. ibid. Vide Perkins, 691, 692. Rend, and Cestui que vie dieth; in this case Tenant perautre vie cannot distrain, because his Reversion is determined. If a Town be Amerced, and the Neighbours by assent assess a Dr. & Stud. l. 2. ● 9 certain Sum upon every Inhabitant, and it is agreed, that if it be not paid by such a day, certain persons thereto appointed shall distrain; such Distress is lawful. Lord and Tenant by Fealty Dr & Stud. ibid. 12 ●. 4.11. 9 E. 3. 1 Vide l. ●. ●h●. of Ren●s▪ & 〈◊〉 44 ●. 3. ●o●●de ●on ●●e 20 ●●d Pe●kins, 113. and Rent, the Lord grants the Fealty reserving the Rent, and the Tenant attorns; the Lord cannot now distrain for the Rent, for it is now made Sack. But if a man make a Gift in Tail reserving Fealty and Rent, Dr. & Stud. ibid. and after grants the Fealty reserving the Rent and Reversion; here he may distrain for the Rent, for the Fealty is incident to the Reversion, and cannot be granted without it. For Herriot-Service the Lord may distrain, but for Herriot-Custome he must seize, and not distrain. For Rent granted upon Egalty of partition or of Dower, the 21 H. 6.7. & Dr. & Stud. ibid. party may distrain. If a man break the Pound, and take out his goods, he that 34 H. 6.18. Co. 1 part Inst. f. 47. b. Vid. Comp. A●t. p. 192. distrained may have a Parco fracto against him, and may also take the goods again wheresoever he finds them, and put them in the Pound again. If the Tenant forestall the Co. on Lit. f. 153. b. & f. 161. b. Fleta, l. 1. c. 42. Vide 29. Ass. 49. Noye's Max. p●● 46. way with force and arms, and threaten in such manner that the Lord dares not come to distrain or demand the Rent, or if there be no Distress on the ground, nor none ready to pay the Rent; then in this case the Lord may have a W●it of Novel Disseisin against the Tenant, and recover his Rent and Arrearages: and if the Rent be behind another time, he may have a Redisseisin, and recover double Damages. If a man take a Distress he M. 7 Jac. in C. B. More and Conham's case. Owen's Rep. f. 123. Vide in Bagshaw and Goward's case, Hil. 3 Jac. in B. R. Rot. 1070. Cro. Rep. 1 part, fo. 147. may not work it, for he hath neither property nor possession in Jure. CHAP. VIII. Of Rescous, where it shall be lawful. REscous is an old French Co. 1 part Inst. f. 160. b. word coming from Rescourrer (id est) Recuperare, that is, to take from, or rescue, or recover; and is a taking away or setting at liberty against Law a Distress taken, or a person arrested by the Process or Course of Law. And all is one as to the point Co. ibid. F. N. B. 101. c. & 102. f. of the Disseisin, to rescue the Keilway 20. 6 H. 6. Disseiss. 9 21 H. 7. 40. a. Finch, l. 4. c. 16. & p. 310. Distress after it is taken, or beforehand to resist and withstand the taking of it; but yet it is no Rescous until it be distrained. If the Lord distrain when See in Bevil's ca Co. 4. l. f. 11. 61 R. 2. Rescous 10. there is no Rent arrear, the Tenant may make Rescous and hinder. Or if the Lord come to distrain, and the Tenant tender 7 E. 4.24. & Co. 1 part Inst. f. 160. b. the Rent to him, and yet notwithstanding the Lord will distrain, than the Tenant may make Rescous. If the Rent be behind, and the Lord distrain the of Co. ibid. 17 E. 3. 43. Vide Marlbr. ca 15. 52 H. 3. Wingate's Abr. Stat. p. 132. See Rastall Tit. Distresses 5. Ferrer's Magn. Charta, f. 25. b. the Tenant in the Highway within his Fee, the Tenant may make Rescous; for no man may distrain in the Highway, except the King and his Officers having special Authority. If the Lord will distrain Averia Carucae, goods of the Co. on Lit. f. 161.2. Plough, where there is a sufficient Distress to be taken besides, Rastall Tit. Distresses 10. & see Wingate's Abr. Sta. p. 132. Ferrer's Mag. Charta, f. 122. b. or if the Lord distrain any thing that is not distrainable either by the Common Law or by any Statute, the Tenant may make Rescous. If the Lord distrain out of his Fee in Lands not holden of Co. 1 part Inst. f. 161. a. him, the Tenant may make Rescous, unless it be in some special cases. See after in Ch. 10. If the Lord come to distrain Co. ibid. Comp. Att. p. 196. Co. 9 l. f. 22. in the case of Avowry. 6 R. 2. Resc. 11.44 E. 3.20. Hughes' gr. Ab. 1 part, p. 717. c. 21. F. N. B. 102. g. 21 H. 7. f. 40. Kitchen, f. 52. b. which he seethe then within his Fee, and the Tenant, or any other, to prevent the Lord to distrain, drive the out of the Fee of the Lord into some other place, yet may the Lord freshly follow, and distrain the , and the Tenant cannot make Rescous; for in judgement of Law the Distress is taken within his Fee, and so shall the Writ of Rescous suppose. But if the Lord coming to distrain had no view of the Co. 1 part Inst. f. 161. a. & Compl. Att. p. 196. Vide. Hughes' gr. Ab. 1 part, p. 717. c. 21. within his Fee, though the Tenant drive them off purposely, or if the of themselves after the view go out of the Fee, or if the Tenant after the view removeth them for any other cause then to prevent the Lord of his Distress; then cannot the Lord distrain them out of his Fee, for if he do, the Tenant may Rescue. If a man come to distrain for Dammage-feasant, and see▪ the Co. 1 part Inst. f. 161. a. 161.4. 10.2 E 2. Avowry 182. Co. 9 l. f. 22. in Case de Avowry. Noye's Ma● p. 46. Beasts in his Soil, and the Owner chases them out of purpose before the Distress taken, the Owner of the Soil cannot follow and take them; for if he do, the Owner of the may rescue them: for they must be Dammage-feasant at the time of the Distress taken, and the Owner of the Soil is left to his Action of Trespass. If the Tenant lock up his Co. ubi suprá. 10 E. 3.9.49 E. 3.14.7 E. 3.3.11 H. 7. 28. 8 Ass. 18. 10 E. 4.2. Gates, and enclose his grounds, so that the Lord cannot come to distrain, this is a Disseisin, if the Lord have had actual possession and the Rent is behind; for the Lord cannot break open the Enclosures to take a Distress. CHAP. IX. Of Replevins, when and where to be sued out. REplegiare is compounded of Re and Plegiare, as much Co 1 part Inst. f. 145. b. as to say to deliver upon Pledges or Sureties. Where goods are distrained and impounded, the Owner of Co. ibid. Vide Fleta, l. 2. c. 40. & Glanvill, l. 12. c. 12. the goods may have a Writ De Replegiari facias, whereby the Sheriff is commanded, taking Pledges of prosecuting, to re▪ deliver the goods distrained to the Owner; and this is by the Common Law. But the quickest way is to Co. ubi suprá. Westmin. 2. c. 2. Vide Ferrer's Mag. Charta, f. 60. Rastal Tit. Replevin 2. & Wingate's Abr. Stat. p. 409. Compl. Att. p. 127. complain to some of the Sheriff's Deputies in the Country, who keep a Seal for that purpose, and they will grant a Replevin, and must take Plegii de Retorno habendo, that is to deliver the goods again to the party that distrained, if the action be found against him that Replevieth; and this is by the Statute. By the Stat. 1, 2 P. M. C. 12. Wingate's Abr. p. 133. Rast. Tit. Distresses 11. Vide Sheppard's Survey of County Judicatures, p. 47. every Sheriff is at his first County-day, or within two Months after he receives his Patent, to depute and proclaim in his Shire-Town 4 Deputies to make Replevins, not dwelling above 12 Miles distant one from another; if he fails herein, he forfeits 5 pound every Month they are wanting, to be divided between the King and the Prosecutor. If the Lord carry the Distress Compl. Att. p. 125, 126. Ferrer's Ma. Charta, f. 37. Westm. 1. c. 17. Vide Rastall Tit. Distresses 7. & Wingate's Abr. p. 133. Terms of the Law, verb. Distress. Vide Sheppard's Sur. of County Judicatures, p. 49. to a Hold or out of the County, so that the Sheriff cannot make Deliverance upon the Replevin, than the party upon the Sheriff's return of the Replevin may have a Writ of Withernam directed to the Sheriff, to take as many of the Lord's Beasts or as much goods in his keeping till he have made deliverance of the first Distress; and if the Beasts or goods be conveyed to a Fort or Castle, the Sheriff may take with him the Power of the County, and beat down the Castle. If it be in a Franchise or Bailiwick, Comp. Att. p. 127. Vide Marlb. c. 21. Ferrer's Magna Charta, f 27. & Rastall Repl. 1. the party shall have a Replevin of the Sheriff, directed to the Bailiff, to deliver them upon Pledges as before. It is a general Rule, that the Plaintiff in the Replevin must 3 E. 3.74.6 H. 4.2. & 39.9 H. 6. 39 20 H. 6. 19 30 E. 3.22. 31 E. 3. Repl. 35. Co 1 part Inst. f. 145. b. have the property of the goods in him at the time of the taking; for if the Defendant (that is he that distrained) claim property, the Sheriff cannot grant a Replevin upon Complaint to him made; for it is a Rule in Law, that Property must be tried by Writ. And therefore in this case the 31 H. 6. Prop. probanda 5.1. E. 4.9. 21 E. 4.64, & 66. 2 El. Dyer 173. Co. 1 part Inst. f. 145. b. Vide Sheppard's Suru. of County Judic. p. 50, 51, & 52. Plaintiff (that is he that sues out the Replevin) may have a Writ De proprietate probanda directed to the Sheriff, to try the Property; and if it be found for the Plaintiff, than the Sheriff to make Deliverance, and if for the Defendant, the Sheriff can proceed no farther; unless the Plaintiff get a Replegiari facias to the Sheriff; and then, though he return the property, etc. yet it shall proceed in the Common Pleas, where the property shall be put in issue, and finally tried. The Sheriff may take a Plaint upon the Stat. Marlebr. out of Co. ubi suprá. his County, and make Replevin presently; for it should be inconvenient for the Owner to forbear his till the County-day. If he that distrained the Beasts see cause, he may have a Writ of Recordare, and so remove the Suit upon the Replevin out of the Sheriff's County-Court into the Comon-Pleas-Court; and if the Plaintiff declare not, he that distrained may have a Retorno habendo; and if he declare not still, than the Avowant shall have a Writ to inquire of Damages. Note, there be two kinds of Co. 1 part Inst. f. 145. b. 42 E. 3. 18. 11 H. 4. 17. 7 H. 4.17. 48 E. 3. 20. Vide Sheppard's Survey of County Judicatures, p. 46. Properties; a general property, which every absolute Owner hath, and a special property, as goods pledged, or taken to manure his Lands, or the like: and of both these a Replevin doth lie. It is to be noted, that a man 5 E. 3.38. 11 H. 4. 4. 17 E. 2 Prop. prob. 6. Co. 1 part cannot claim property by his Bailiff or Servant; and the Reason Inst. f. 145. b. Philipps Prin. of Law, p. 69. Vide Sheppard's Survey of County Judicatures, p. 52 & 53. is, for that if the Claim fall out to be false, he shall be punished for his contempt, which the Lord cannot be, unless he make Claim himself; for Nemo punitur pro alieno Delicto. If a man by his Deed grant Co. ubi suprá. Bract. l. 4. f. 233. a b. 31 E. 3. Gage Deliver. 5. a Rent with Clause of Distress, and grant farther that he shall keep the goods distrained against Gauges and Pledges until the Rent be paid, yet shall the Sheriff Replevie the goods distrained; for it is against the nature of such a Distress to be Irrepleviable, and by such an Intention the Current of Replevins should be overthrown, to the hindrance of the Commonwealth. If the Beasts of divers several Co. 1 part Inst. f. 145. b. 28 E. 3.92. 3 H. 4. 12. 34 H. 6. 37. Sheppard's Sur. of County Judicatures, p. 46 47, & 52. men be distrained, they cannot join in a Replevin, but every one must have a several Replevin; for in a Replevin it is a good Plea to say that the property is to the Plaintiff and to a Stranger, and where there be two Plaintiffs, that the property is to one of them. The Tenant shall have a Replevin F. N. B. 69. b. 4 H. 7.40. 11 H. 7. 10. Compl. Att. p. 131. & Philipps Pr. of Law, p. 143. Finch, l. 1. c. 3. p. 46. against the Lord that did wrongfully distrain, though the Beasts be come back again to the Owner, because he can have no Action of Trespass against the Lord. A Replevin ought to be certain Tr. 23 Car. in B. R. Regest. Practicale, p. 193. in setting forth the number and kinds of the distrained, or else it is not good. CHAP. X. Of Avowries, a word or two briefly concerning the same. Avowry is where one taketh Terms of the Law, verb. Avowry. a Distress for Rent or other thing, and the Owner of the goods sueth out a Replevin, than he that taketh the Distress shall justify in his Plea for what cause he took it; and if he took it in his own Right, he must show that, and so avow the taking, and that is called his avowry. But if he took the Distress Terms of the Law, verb. Avowry. in or for the Right of another, then when he hath showed the cause, he must make Conusance of the taking, as Bailiff or Servant to him in whose Right he took it. In avowry if the Plaintiff Rastall Tit. Avowry, and Wingate's Abr. p 34 be Nonsuit, or otherwise barred Vide Tr. 15 Car. B. R. Tintnye & James' Case, in Winche's Rep. f. 30, & 31. & in Cro. 1 part, 358, & 385. the same case, where there is excellent matter about Avowrie●. or overthrown, than the Avowants shall recover their Damages and Costs against the said Plaintiffs, as the same Plaintiffs should have done or had if they had recovered in the Replevin or Second Deliverance found against the said Avowants. The Lord may avow the taking Rastall and Wingate, ubi suprá. Co. 1 part Inst. f. 269. b. a Distress as in Lands holden of him within his Fee, without naming any person in certain; and this is by the Statute of the 21 H. 8. c. 19 But by the Common Law they could not do this, but were forced to avow upon a person in certain, which proved often very prejudicial to the Lords; for by the secret Fines, Recoveries, Grants and Feoffments which the Tenants made purposely to defraud their Lords, they thereupon were put from the knowledge of their Tenants, upon whom by order of Law they should make their Avowry, and so to prevent this Inconvenience the said Statute was made. But the Lord may avow still Co. ubi suprá. Vide Mich. 6 Jac. Co. 8. l. Sir Will. Foster's case. 32 H. 8. ch. 2. Rastall Tit. Limitation 3. & Wingate's Abr. p. 295. by the Common Law if he will: and although he do avow by the Statute upon the Lands generally, as in Lands, etc. within his Fee or Seignory, yet nevertheless he must allege Seisin by the hands of some particular Tenant in certain within 40 years. In an avowry made according Rastall Tit. Avowry; & Wingate's Abr. p. 34. to the Statute, every Plaintiff in the Replevin or Second Deliverance, be he Termor or other, may have every Answer to the avowry that is sufficient, and also have Aid and every other Advantage in Law, Disclaimer only excepted: for disclaim he cannot, because the Avowry is made upon no person certain. If the Lord come to distrain, and the Tenant chase his Beasts Co. 9 l. in Case de Avowry, f. 22. which were within the Lord's view out of the Land holden, etc. yet if the Lord freshly follow and take them, although it be out of his Fee and Signiory, he may by the Equity of the Statute avow the taking as in Lands holden of him within his Fee and Seignory. If there be Lord and Tenant, Co. 1 part Inst. f. 269. b. & see Co. 3 l. f. 65, & 66. in Pennant's case. and the Rent is behind for divers years, and the Tenant makes a Feoffment in Fee, if the Lord accept the Service or Rent of the Feoffee due in his time, he shall lose the Arrearages due in the time of the Feoffor; for after such acceptance he shall not avow upon the Feoffor, nor upon the Feoffee for the Arrearages in the time of the Feoffor: But if the Feoffor dieth, albeit the Lord accept the Rent or Service by the hands of the Feoffee due in his time, yet he shall not lose the Arrearages; for now the Law compelleth him to avow upon the Feoffee, and that which the Law compelleth him unto shall not prejudice him. There are four manner of Vide Aiscough's case 9 Jac. Co. 9 l. f. 135, & 136.20 H. 6.9. 26 H. 6. Avowr. 17. 9 Eliz. Dyer 257.20 ●. 3. Avowry 131.5 H. 7.11. Avowries. 1. Upon his very Tenant. 2. Upon his very Tenant by the manner, where the Tenant had but a particular Estate. 3. Upon his Tenant by the manner, where the Lord had but a particular Estate. And these 3 are by the Common Law. 4. Upon the matter in the Land as within his Fee; and this is by the Statute, and the safest way. CHAP. XI. Of Waste: What shall be Waste in Houses, Gardens, Woods, Pastures, etc. and what not. IF Lessee for Life, Years, in 34 F. ●. Waste 143. Vide 10 H. 7. f. 2. b. 12 H. 4. f. 4. Co. 1 part Inst. f. 53. a. Vide Hern's Law of Conu. p. 51. Dower, etc. pull or prostrate down the Houses, or suffer them to be uncovered, whereby the Sparrs or Rafters, Planchers or other Timber of the Houses are rotten, this is Waste. If the House be uncovered when the Tenant cometh in, it Co. ubi suprá. Herne's Law of Conu. ubi suprá. is no Waste in the Tenant, if he suffer the same to fall down. But although the House be 40 Ass. pl. 22. 23 H. 6.24. 29 E. 3. 33. Co. ubi suprá. Compl. A●. p. 166. Herne, ubi suprá. uncovered and ruinous at the time of the Tenants coming in, ye if he pull it down, it is Waste, unless he do build it again. If Glass-windows (though Vide Co. 4. l. f. 63. in Harlackenden's case. Swinburn's Wills 3 par. sect. 6. f. 165. & Herne, ubi suprá. glazed by the Tenant himself) be broken down or carried away, it is Waste; for the Glass is part of the House. And so it is of Wainscoat, Co. 1 part Inst. f. 35. a. Vide Keilway, f 88 & Harlackenden's case, ubi suprá. 22 H. 6. 18.22 E. 4.18. Swinburn, ubi supr●. Compl. Att. ubi suprá. whether it be fixed to the Walls or Posts of the House with great Nails or little Nails, Screws or Pins, it is all one, if it be fixed to the once, it is Waste to take it away again. The same Law of Benches, Co. 1 part Inst. f. 53. a. 10 El Dyer 2●2. 42 E. 3. f. 6. Noye's Maxims, p. 3●. Doors, Windows, Furnaces and the like, annexed or fixed to the House, either by him in the Reversion or the Tenant. The Rasing of a new Frame of a House which was never 40 Ass. pl. 22. Pr. Waste ●17. Kitchen. f. 242. b. covered, is no Waste. The House uncovered by 12 H 4. f. 4. Kitchen, f. 241. b Co. ubi suprá. 19 E. ●▪ W●st ●0. Herne's Law of Convey p. 52. sudden Tempest or otherwise, it is no Waste in the Tenant if he let it lie so, till the main Timber be rotten; and then he shall be punished in Waste, for not repairing it in time. If the House fall by sudden Tempest, or be burnt by Lightning, Co▪ ubi suprá. Vide in Co. 4. l. f. 63. Harlackenden's case. Dr. & St. l. 2. c. 4. or prostrated by Enemies, or the like, without any Default of the Tenant, or was Ruinous at his coming in and fall down, this is no Waste. And the Tenant may build the same again with such materials Co ubi suprá. 43 E. 3.6.11 H. 4.32. ●1 H. 6.18. Herne's Law of Conu. p. 52. as remain, and with other Timber growing upon the ground, (which he may take) for his habitation; but he must not make the House larger than it was, for if he do, he is punishable in Waste. Though there be no Timber Co. ubi suprá. 44 E. 3.21.38 Ass. pl. 1. Com. Att. p. 166. Herne's Law of Conv p. 51. growing upon the ground, yet the Tenant at his peril must keep the Houses from wasting. If the Tenant build a new Co. ubi suprá. Kitchen, f. 242. a. 42 E. 3.21. 12 H. 4. f. 6.17 E. 2. Wast 118. House where none was before, it is Waste; and if he suffer it to be wasted, it is a new Waste. If the Tenant either do or Co. 1 part Inst. f. 53. a. 40 E. 3. f. 6. 38 Ass. pl. 1. Vide Kitchen, f. 242. a. Herne's Law of Conu. p. 51, & 52. suffer Waste to be done in the Houses, yet if he repair them before any Action brought, he is clear; but he cannot plead quòd non fecit vastum, but the special matter. The pulling down of a Stone-wall Kitchen, ubi suprá. 10 H. 7. f. 2. b. Com. Att. p. 166. or Mudwall of an House is Waste. A Wall uncovered when the Co. ubi suprá. Tenant comes in, is no Waste if he suffer it to decay. If the Tenant of a Dove-house, Brit. f. 134.5 R. 2. Wast 97. Pl. Com. 322. Hobart's Rep. f. 234. Co. ubi suprá. Hern's Law of Conu. p. 52. Park, Warren, Vinary, Estangues, etc. do take so many, as such sufficient store be not left as he found when he entered, this is Waste; and to suffer the Pale to decay, whereby the Deer are dispersed, is Waste. If the Tenant suffer the F. N. B. 59 k. Kitchen, f. 2 ●●. ●. Co. 1 part Inst. f. 53. b. Houses to be wasted, and then fell Timber to repair them, this is a double Waste. If a Termor fix a Furnace, and not to the Walls nor Posts 21 H. 7 f. 26. per Kingsmil. of the House, if he take it away within his term, it is no Waste, for the House is not impaired. If Tenant in Fee fix a Furnace Kitchen ubi suprá. or Fat in the middle of the House, the Heir shall have it, and not the Executors. If an House fall by a great 34 E. 3. f. 3. b. 11 H. 4. f. 21. Wind or Tempest, the Lessor shall have the Timber, for it is no Waste, and the Lessee is not bound to re-edify it. If the Tenant take away a Lead or Fatts fixed to the House, it is Waste. If a Stable be ruinous at the 11 H. 4. f. 32. Kitchen, f 242. b. time of the Lease made and fall, the Tenant may cut down Trees to make a new one; but if there were none there before, it is Waste if he cut Trees to build one. The Tenant may cut Trees Kitchen ubi suprá. Fitz. 59 k. to amend the House and make Reparations; but where it is in decay through his own Default, there if he cut Trees to repair it, it is Waste. It is to be observed, that there Co. 1 part Inst. f. 53. a. Vid. Herne's Law of Convey. p. 52. is Waste, Destruction and Exile. Waste properly is in Houses, Gardens and Timber-Trees, (viz. Oak, Ash and Elm, and these are Timber in all places) either by cutting of them down, or lopping and topping them, or doing any act whereby the Timber may decay. Also in Countries where Co. ubi suprá. Herne ubi suprá. Timber is scant, and Beeches or the like are converted to building for the habitation of man, or the like, they then are also accounted Timber, and cutting of them by the Tenant is Waste. If the Tenant cut down 22 H. 6.12. a. ● N. B. 59 m. C● ubi suprá. Timber-Trees as is afore said, or such as are accounted Timber, it is Waste; and if he suffer the young germens to be destroyed, this is Destruction, and punishable in Waste also. If the Tenant cut down Under-wood, (as he may by Law) 20 E. 3. Wast 32. 10 H. 7.2.42. E. 3. ●. b. 5 E 4. 100 41 E. 3. Wast 82. 12 E. 4. 1. & Co. 1 part Inst. f. 53. a. yet if he suffer the young germens to be destroyed, or stub up the same by the Roots, so that it can grow no more, this is Waste. Cutting down of Willows, 40 E. 3. f. 15. b. 4 E. 6. Waste, Br. 136. Kitchen f. 243. a. Co. ubi suprá. Comp Att. p. 165. Herne's Law of Conu. p. 52. Beech, Birch, Asp, Maple or the like, standing and growing in the Defence and within the view of the House, is Waste. Beech of the age of 20 years, nor under 20 years, may Temps H. 8. Br Waste 184. not be cut by Tenant for Life or Years, for it is Waste, unless it be in some Countries where there is plenty of Timber▪ A man cannot assign Waste 13 H. 7. f. 21. in the cutting of Beeches of the age of 7 or 8 years. Cutting of Hasels which grow not under the great Trees, 40 E. 3 f. 25. b. 10 H. 7. f. 2. F. N. B. 60. c. Kitchen, f. 243. a. but in a quarter of the Wood by themselves, is Waste. If there be a Quick-set-Eence of White-thorn, and Co. 1 part Instit. f. 53. a. 46 E. 3. f. 17. 9 H. 6. f. 10.12 H. 8.1. Kitchen, f. 244▪ a. the Tenant stubs it up, or suffers it to be destroyed, it is Waste. The Cutting of dead Wood Co. ubi suprá, & Kitchen ubi suprá. F. N. B. 59 m. 16 El. Dyer 332. which is dry and hollow, and neither bears Fruit nor Leaves in Summer, is no Waste. The Tenant may take sufficient Co. 1 part Inst. f. 53. b. Wood to repair the Walls, Pales, Fences, Hedges and Ditches, as he found them; but he can make no new ones but it will be Waste. He may also take sufficient Plough-bote, House-bote, and Fire-bote, as is showed before in Chap. 5. p. 91. If the Tenant cut down Trees Co. 1 par. Inst. f. 53. b. Compl. Att. p. 167. Herne's Law of Conu. p. 58. for Reparations and sell them, and after buyeth them again and imploies them about necessary Reparations, yet it is Waste by the Vendition, for he cannot sell Trees, and with the money cover the House. Burning of the House by negligence Co. ibid.▪ & Herne ubi suprá. or mischance is Waste. A Termor may take Beech, 4 E. 6. Bro. Waste 136. Ashes, and the like, which are well seasonable, and have been used to be felled every 20, 16, 14, or 12 years, and it is no Waste, for it is called Sylva caedua. Cutting of Beech's and selling 7 H. 6. f. 40. Kitchen, f. 243. b. them is Waste; but the Termor may cut them to repair upon the same Land, but not to make Reparations upon other Lands. Cutting Beeches of 10 years old seasonable for House-bote, 11 H. 6 f. 1. Sed ●ide 4 E. 6. f. 136 Kitchen, f. 243. a. is no Waste; but where they are of the age of 20 years, and fit for main Timber, that is Waste. Where Oaks are cut, and Kitchen, f. 243. b. 11 H. 6. f. 1. Com. Att. p. 167. the young germens suffered to be eaten with , so that they will be but Shrubs, this is Waste. One may assign Waste in 22 H. 6. f. 14. Kitchen, f. 243. b. the cutting of 20 Oaks, and also in their Stocks, to wit in not springing them again; for if they were saved, they would be Timber, and for that they are not saved, it is Waste. A Termor may cut seasonable wood, which is wont to be F. N. B. fo. 59 m. cut every 20 years, or within such time. Cutting of White-thorn is 46 E. 3. f. 17. Kitchen, f. 244. a. Waste, but not the cutting of Black-thorn. Where there is a Wood in 4 E. 6. Bro. Wast 136. which groweth nothing but Under-wood, the Termor cannot cut all; contrà of Underwood where Ash, Beech, and other principal Trees grow amongst them, for there he may cut all the Under-wood. Where Appletrees are 7 H. 6. f. 40. Kitchen, f. 244. a. blown down, and after become dead, the Tenant may cut them for Fuel. Cutting of Appletrees, Kitchen, ibid. 44 E. 3. f. 44. Compl. Att. p. 168. though they lie all along on the ground, yet if they bear fruit, it is Waste. Cutting of Damsin-trees is Waste. 10 H. 7. f. 2. If the Tenant cut down any of the Fruit-trees growing in 7 H. 6.38.44 E. 3. 44. Co. 1 part Inst. f. 53. a. the Garden or Orchard, it is Waste. But if such Trees grow in Co. 1 part Inst. f. 53. a. Vide Hern's Law of Conu. p. 52. any place of the ground out of the Garden or Orchard, it is no Waste if he cut them. Digging for Gravel, Lime, Co. ibid. f. b. F. N. B. 59 n. Herne's Law of Conu. p. 53. Clay, Brick-earth, Stones, or the like, is Waste. And so it is if the Tenant dig for Mines of Metal, Coals, etc. Idem ibid. 41 E. 3. Wast 8. Hobart's Rep. f. 234. Herne ubi suprá. in the Earth, and not open at the time of the Lease made. But he may dig for Gravel or Co. ubi suprá. Com. Att. p. 168. Herne ubi suprá. Clay for Reparations of the House, and it is no Waste. It is Waste to suffer a Wall Idem ibid. & Brit. f. 168. b. 6. El. in Griffins ' case. of the Sea to be in decay, so as by the flowing and reflowing of the Sea the Meadow or Marsh is surrounded, whereby the same becomes unprofitable; but if it be suddenly by 6 El. ubi suprá. ●. N. B. 59 n. the rage and violence of the Sea occasioned by some Tempest or the like, without any default of the Tenant, this is no Waste punishable. If the Tenant repair not the Co. ubi suprá. 29 H. 8. Dyer 33. 22 H. 6.4.10 H. 7. 5. a. Kitchen, f. 241. b Banks or Walls of Rivers or other Waters, whereby his Ground is surrounded, and becomes rushy and unprofitable, this is Waste. To suffer Pasture-ground to Kitchen ibid. 20 H. 6. f. 1. be surrounded with water, so that it becomes rushy and nothing worth, or Arable-Land to be surrounded, so that nothing remains but tough Clay, this is Waste. If the Tenant convert Arable-Land Co 1 part Inst. f. 53. b. 29 H. 8. Dyer 37. Hobart. Rep. f. 234. Vide Kitchen, f. 241. b. 10 H. 7.5. a. 44 E. 3.44. & Com. Att. p. 168. into Wood, or è converso, or Meadow into Arable, it is Waste; for it doth not only change the course of his Husbandry, but the proof of his Evidence. To suffer Arable-Land to lie 2 H. 6. f. 11. F. N. B. 59 n. fresh, so that it is full of Thorns, is no Waste. If a man lease his Lands in Co. 1 par. Inst. f. 54. b. 17 E. 3.7. 9 H. 6.66, F. N. B. 149. c. & 59 n. Vide Hil, 15 Jac. in the Lord Darcy & Askwith's case. Hobart's Rep. f. 234. Herne's Law of Conu. p. 54, & 55. which are Mines of Coals or the like, without mentioning the Mines in the Lease, the Lessee for such Mines as are open at the time of the Lease made may dig lawfully, and take the profits thereof; but he may not dig for any new ones, it is Waste. If there be open Mines, and Co. ubi suprá. the Owner make a Lease of the Vide Saunders's case, 41 El. in Co. B. Co. 5. l. f. 12. Herne's Law of Conu. p. 54, & 55. Land with the Mines therein, this shall extend to the open Mines only, and not to any hidden Mines: but if there be no open Mines, and the Lease is made of the Land together with all Mines therein, in this case the Tenant may dig for them, and enjoy the benefit thereof, otherwise the words should be void. If a Lease be made to one of 17 E. 3. Tit. 101. Kitchen, f. 248. a. Lands, to occupy the same after the best way he can, or to make his best profit of them, yet this shall be intended only to be after such manner as is according to Right and Law; for in this case the Lessee may not blow up Meadow, or pull down Houses, etc. for if he do, he shall be punished in Waste. If the Lessee make the Villains Co. 1 part Inst. f. 53. b. or Tenants at Will poor, where they were rich when he came in, whereby they depart from their Farms, this is Exile and punishable. CHAP. XII. Who are punishable in Waste, and for what Waste, etc. WAste in Latin is called Co. 1 part Inst. f. 52. b. Vastum, à Vastando, from wasting and depopulating. There are two kinds of Idem, f. 53. a. Waste; that is to say, Voluntary or Actual Waste, and Permissive Waste. An Action of Waste lieth Noye's Max. p. 33. Co. 1 part Inst. f. 53. a. & 2 part Inst. f. 302. Pl. Com. f. 467. b. 68 a. Philipps Pr. of Law, p. 32. Vid. Mag. Charta, ch. 4. & Stat. Glouc. against Tenant by the Courtesy, Tenant for Life, for Years, or half a year, Tenant in Dower, or Guardian in Chivalry, by him that hath the Estate immediate ch. 5. Rastal Wast 1.4.5. & Wingate's Abr. Stat. p. 551, & 552. 4 H. 6. f. 11. Kitchen, f. 338. a. of Inheritance, for Waste or Destruction in Houses, Gardens, Woods, Trees, Lands, Meadows, etc. or in Exile of men, to the disherison of him in the Reversion or Remainder, and they shall lose the place wasted, and triple Damages. It doth not lie against Guardian in Soccage, but an Action Co. 1 part Inst. f. 54. a. Ferrer's Mag. Charta, f. 26. b. of Account or Trespass. Waste lieth not against Tenant Noye's Max. p. 33. F. N. B. 59 c. 16 E. 3. Tit. Wast 100.2 E. 2. Wast 1. by Elegit, Statute-Merchant or the Staple, but an Action of Account after the Debt and Damages levied. Neither doth it lie against Tenant at Will; but if such Co. 1 par. Inst. f. 57 a. 21 H. 6.38. 48 E. 3. f. 25. 11 H. 6. f. 38. 12 E. 4. f. 8.22 E. 4.5.21 H. 6. f. 43. Kitchen, f. 237. a. b. Walgrave & Somerset's ca Mich. 29 & 30 El. Goldsb. Rep. p. 72. pl. 17. Tenant voluntarily pull down the Houses or cut down Timber-trees, etc. in this case the Lord may have an Action of Trespass against him, Quare vi & armis, etc. but for permissive Waste the Lord hath no Remedy against him. Either Waste or Account will lie against Tenant in Mortgage, Noye's Max. ubi suprá. for he hath Fee Conditional. There are 5 several Writs of Waste; 2 at the Common Co. 1 part Inst. f. 54. a. Law, for Waste done by Tenant in Dower or the Guardian; and 3 by the Statute-Law, for Waste done by Tenant for Life, for Years, and Tenant by the Courtesy. If two or more Joint-tenants Co. 1 part Inst. f. 200. b. Reg. 163. f. N. B. 127. & 1 part Inst. f. 54. b. or Tenants in common be of a House of Habitation, and the one of them will not repair the House, the other in that case may have a Writ De reparatione facienda. If the Lessor covenant to repair 12 H. 8. f. 1. Co. 1 par. Inst. f. 54. b. Vid. Herne's Law of Conu. p. 54. the House, and doth not, in this case the Lessee may cut Timber growing upon the ground and repair it, though he be not compellable thereunto, and shall not be punished in Waste for cutting the Wood If a man make a Lease of an Co. ubi suprá. House and Lands, without impeachment of Waste for the House, yet may the Lessee notwithstanding repair the House with the Timber growing upon the ground, though he may utterly waste the House if he will. No person shall have an Action Co. 1 part Inst. f. 53. b. F. N. B. 59 f. 8 R. 2. Wast 47.27 H. 8.13. of Waste, unless he hath the immediate state of Inheritance; but sometime another shall join with him for Conformity; as if a Reversion be granted to two and the Heirs of the one, they two shall join in an Action of Waste. And in like sort the surviving Idem ibid. Coparcener and the Tenant by the Courtesy shall join in an Action of Waste. If the Estate-Tail determine, Co. ubi suprá. 2 H. 4.22. hanging the Action of Waste, and the Plaintiff become Tenant in Tail after possibility of Issue extinct, the Action of Waste is gone. If the Tenant do Waste, and 2 H. 4. Co. ubi suprá. Noye's Max. p. 33. he in the Reversion dieth, the Heir shall not have an Action of Waste for the Waste done in the life of the Ancestor. Nor a Bishop, Master of an Co. ubi suprá. Hospital, Parson, etc. in the time of the Predecessor. If Lessee for Years commit Waste and die, no Action of Idem ibidem. 10 E. 4.1.49 E. 3. 25. 11 E. 2. Wa. 115. 2 Mar. 117. 8 E. 2. Waste 110. Waste lieth against his Executors or Administrators for Waste done before their time. If two Coparceners be of a Idem ibid. Reversion, and the one of them dies, the Aunt and Niece shall join in an Action of Waste. If Lands be given two, and C. 1 par. Inst f. 53. b. & 200. b. 24 E. 3. 27. 50 E. 3.3.8 H. 6. 13. Co. 2 part Inst. on Stat. Glou. ch. 5. the heirs of one of them, he that hath the Fee shall not have an Action of Waste upon the Statute of Glouc. for that they are joint-tenants; but his Heir shall have an Action of Waste against Tenant for Life. If Lessee for Life commit F. N. B. 36. b. 14 H 8. f. 11. Kitchen, f. 244. a. b. Waste, and after surrender his Estate, and the Lessor accepts it; now the Lessee is discharged of the Waste. If a Stranger make Waste Kitchen, ibid. 5 ●. 4. f. 3. 3 H. 6. f. 1●. b. upon the Lands which one holdeth for Life or Years, the Termor shall be punished for it, and is left to take his Remedy over. But if the Lessor himself Kitchen, ubi suprá. 5 H. 4. f. 3. make Waste, the Tenant shall not suffer for that Waste. If the Tenant make Waste Idem ibid. 48 E. 3. f. 15. 34 H. 6. f. 7. ● before his Attornment, he shall not be liable to an Action for it. If the Lessor covenant to deliver Timber out of the same 44 E. 3. f. 21. Kitchen, ubi suprá. Land to repair the House let, and will not, and for lack thereof the Lessee will not repair it, but suffers the House to fall; in this case he is punishable for such Waste: But if the Timber Idem ibid. be to be taken out of other Lands, and is not delivered, than the Tenant is excusable if he suffer the House to fall, and no Action of Waste lies against him. Note, After the Waste Co. 1 par. Inst. f. 53. b. done, there is a special regard to be had to the continuance of the Reversion in the same estate that it was at the time of the Waste done; for if after the Waste he grant it over, though he take back the whole Estate again, yet is the Waste dispunishable: and so it is if he grant the Reversion to the use of himself and his Wife, and of his Heirs, yet the Waste is dispunishable, and so of the like; because the Estate of the Reversion continues not, but is altered, and consequently the Action of Waste for Waste done before (which consisteth in privity) is gone. A Prohibition of Waste did lie against Tenant by the Courtesy, Bract. l. 4. f. 315, 316. Brit. f. 168. Dr. & Stud. l. 2. ch. 1. 12 H. 4.3. 10 H. 3. Wast 142. 4 H. 3. Wast 140. Co. ubi suprá. Tenant in Dower, and Guardian in Chivalry by the Common Law, but not against Tenant for Life or Years, because they came in by the Lessor's own Act, and he might have provided that no Waste should be done. Tenant by the Courtesy or Noye's Max. p. 33. Co. ubi suprá. F. N. B. 56. e. f. and see Co. 3. l. in Walker's ca & ●. l. in Beaumont's ca Regest. 72. in Dower can hold of none but the Heir and his Heir by descent; and therefore if they grant over their Estate, and the Grantee doth Waste, yet the Action must be brought against themselves for the Waste done, and not against the Assigns or Grantees. But if the Heir either before Co. ubi suprá. the Assignment had granted, or after the Assignment doth grant the Reversion over; in both these cases the Grantee must bring the Action of Waste against the Assignee, for now the privity is destroyed. In all other Cases the Action of Waste must be brought Co. 1 par. Inst. f. 54. a. 27 E. 4.81. 26 E. 5. Waste 10. against the parties that commit the Waste, (for it is in nature of a Trespass) unless it be in case of a Ward; for there if the Guardian doth Waste and assign over, the Action lieth against the Assignee. A Guardian shall not be punished Co. ubi suprá. 12 H. 4.3. 3 E. 3. Wast 146. Fleta, l. 1. ch. 11. for Waste done by a Stranger. But Tenant by the Courtesy, Idem ibid. F. N. B▪ 59 a. & 60. g. & ●. in Dower, for Life, Years, etc. shall be punished for Waste done by a Stranger, and are left to take their Remedy over against the Stranger as aforesaid. If Waste be made by F. N. B. 59 l. Kitchen, f. 244. b. strange Enemies or sudden Tempest, the Termor is dispunishable for such Waste. See before ch. 11. p. 127. If Land be let to a Feme F. N. B. 36. b. 3 E. 3. T●●. 20. Kitchen ubi suprá. Co. ubi suprá. sole, and she take Husband, who commits Waste and dies; she shall be punished for this Waste. But if the Lease were made Kitchen, ibid. Finch, l. 1. ch. 3. p. 26. to the Husband and Wife, and he commits Waste and dies; in this case she shall not be punished for such Waste, unless she agree to the Estate. If there be two joint-tenants of a Ward, and one of Co. 1 part Inst. f. 54. a. 33 E. 3. Wast 6. them commit Waste, both shall answer for it. An Infant and Baron and Feme shall be punished for Co. ibid. Vide 15 H. 3. Waste 1●. Waste done by a Stranger. If a Feme Tenant for Life Co. ibid. Vide clifton's case, 35 El. Co. 5. l. f. 73. 49 ●. 3.25.46 ●. 3. Waste Statham. 10 H. 6.11, 12. take Husband, and the Husband doth Waste, and the Wife dieth; in this case he is not punishable for such Waste: but if a Feme be possessed of a Term of years, and take Husband who commits Waste, and the Wife dies; here he shall be liable to an Action of Waste for the Waste by him committed, because the Law giveth the Term to him. If Tenant for Life grant over Co. ubi suprá. 30 E. 3.10. his Estate upon Condition, and the Grantee doth Waste, and the Grantor re-entereth for the Condition broken; the Action of Waste shall be brought against the Grantee, and the place wasted recovered. If a Lease be made to a Villain, Co. Ibid. 48 E. 3. 19 and Waste is done, and the Lord entereth; in this case the Lord shall not be punished for Waste done before Entry, but for Waste after he shall. An Occupant shall be punished Co. ibid. & vide Co. 6. l. f. 37. ●e Dean and Chap. de Worc. case; & l. 1●. f 9 b. Herne's Law of Conu. p. 53. for Waste; and so if an Estate be made to A and his Heirs during the Life of B, and A dies, his Heir shall be punished in Waste. If a Lease be made to A for Co. 1 part Inst. f. 54. a. 50 E. 3. 3. 4 E. 3. 18. Perkins, 619. F. N. B. 58. c. & 59 h. 33 E. 3. Wast 144. 11 E. 3. Receipt 118. 10 ●. 4. 9 Regest. 74. Paget & Carie's case vouched in Co. 2. lib. in Bingham's ca f. 92. & Co. 5. l. f. 76. Page●'● case there, 35 El. in C. B. Life, the Remainder to B for Life, the Remainder to C in F●e; in this case if A make Waste, no Action lieth against him during the Life of B; but if B die, than an Action of Waste lies against A for the Waste done in the Life of B; because it was ad exhaereditationem of him in Remainder in Fee, and now the impediment (which was the mean Estate for Life) is taken away. And where it is said in some Vide Paget's ca ubi suprá, in Co. 5. l. Herne's Law of Conu. p. 53. Books, that he in Remainder or Reversion in Fee shall not have an Action of Waste, it is to be intended during the continuance of the mean Remainder for Life: again, where it is said in some other Books, that an Action of Waste doth lie, it is meant after the death of him in Remainder for Life, & not otherwise, therefore nota. If a Lease for Life be made, ●inch, l. 1. ●h. 3. p ●0▪ Co. 1 part I●st. f. 5●. ●. Vide Herne's Law of Conu. p. 50, & 53. the Remainder for Years, the Remainder in Fee; here an Action of Waste lies presently against the Tenant for Life, during the term in Remainder, for this mean term for years is no impediment. But if a man maketh a Lease for Life or Years, and after Co. ubi suprá; & Vide 4 F. 3. 18. granteth the Reversion for Years, the Lessor shall have no Action of Waste during the years; for he himself hath granted away the Reversion in respect whereof he is to maintain his Action: but it is otherwise if he had made a Lease in Reversion, which had been but a future Interest, for there an Action of Waste lieth during the term, and the term shall be saved in that case. If an Action of Waste be brought, and pending the VVrit 11 H. 6. f. 8. F. N B. fo. 60.14 H. 8. f. 12. Kitchen, f. 246. b. the term end, yet the VVrit shall not abate; for although the Plaintiff cannot recover the place wasted, yet he shall recover the triple Damages. And so where one that holds Co. 1 part Inst. f. 285 a. 11 H. 6.43. 9 E. 4.50. for term of another's Life makes Waste, and afterwards Cestui que vie dies; here the Lessor shall recover Damages, although he cannot recover the place wasted. If Tenant for Life or Years or their Assigns make a Grant F. N. B. f. ●0. Kitchen, ubi suprá. 36 ●l. in C. B. ●oo●he's case. Co. 5. l. ●. 77. over, and yet take the profits; then an Action of Waste lieth against him by him in Reversion or Remainder, by the Statute of 11. H. 6. c. 5. If Waste be done in one Co. 1 part Inst. f. 54. a. & 2 part Instit. fo. 304. 4 E. 6. Waste 136. 18 H. 8. 1. 15 H. 7. 11. 8 E. 3. Waste 112. 4 E. 2. 32. 15 E. 3. Waste 108. See Temps E. 1. Wast 122, and 134. Kitchen, f. 246. b. Regestum Practicale, p. 343. Herne's Law of Conveyances, p. 54. Corner of a Wood, that only shall be recovered; but if it be sparsim, that is here and there in the Wood, than the whole Wood shall be recovered, or as much wherein the Waste sparsim is done. And so in Houses, so many Co. 1 part Inst. f. 54. a. 8 E. 2. Wast 112. Rooms shall be recovered wherein there is Waste done; but if the Waste be done sparsim, through all, than all shall be recovered. If a man make a Lease for Life, and by Deed grant that if any Waste be done, that it shall be redressed by Neighbours, and not by Suit or Plea; yet notwithstanding an Action of Waste doth lie, for the place wasted cannot be recovered without Plea. If a man make Waste in 4 E 6. Wast 136. per Bro●ley. & Pasch. 1650. in B. R. per Just. Jermy n. Vid. Regest pract. p. 343. cutting Trees which grow in Hedg-rows which enclose Pasture, nothing shall be recovered but Locus vastatus, that is the Circuit of the Roots, and not the whole Pasture: But if the Trees grew sparsim, Reg. pract. ubi suprá. scatteringly about the Pasture, than the whole Pasture is forfeited if they be cut. It is a good Plea in Bar to a Writ of Waste, to say that the 43 E. 6. f. 6. Wast Kitchen, f. 247. a. House fell by sudden Tempest, although the Termor did covenant to repair it; but it is no Plea in a Writ of Covenant. It is a good Plea in Waste to say, that at the time of the Kitchen, ubi suprá. 49 E. 3. ●. 7. Wast. Lease made the House was ruinous, and the Timber putrefied and rotten, so that it fell; for if any of the principal Timber were rotten, it is no Waste, though he did covenant to repair it. See before, ch. 2. p. 14. It is also a good Plea to say, 8 H. 6. f. 27. Wast. 8 H. 5. f. 8. Wast, mes veies Co. 1 part Inst. f. 285. a. that the Plaintiff hath entered upon the Land, before which Entry no Waste was made; or that he Surrendered, and the Plaintiff did accept, before which time no Waste was made. It is no Plea to say, that at 19 H. 6. f. 66. Vide Co. 1 part Inst. f. 283. a. & Kitchen, f. 247. b. the day of the Writ purchased the House was sufficiently repaired; but he must say after the Waste committed, and before the Writ purchased, it was sufficiently repaired; and this is a good Plea. If the Lessee doth Waste, 19 H. 6. 66. 14 H. 6. 14. 11 R. 2. Waste 99 Co. 1 part Inst. f. 285. a. and after surrenders, and the Lessor agrees; yet notwithstanding the Lessor may have an Action of Waste, and recover the triple Damages. If an Action of Waste be brought by Baron and Feme in Co. ubi suprá. 2 H. 4.22.6 F. 2. Brief. 807. Remainder in special Tail, and pending the Writ the Wife dieth without Issue; now the Writ in this case shall abate, because every kind of Action of Waste must be ad exhaereditationem. If there be two joint-tenants Co. 1 part Inst. f. 200. b. Westm. 2 chap. 22. Vide Rastall Waste 6. Wingate's Abr. Stat. p. 552. Ferrer's Mag. Charta, fo. 71. b. Co. ● part Inst. fo. of a Wood, Turbary, Piscary, or the like, and one of them doth Waste against the will of the other; here the other may have an Action of Waste against him, and he that did the Waste hath election before Judgement either to take his part in certainty by the Sheriff and the Oath of 12 men▪ etc. or that he grant that from thenceforth he shall not do Waste, but according to his proportion, etc. and if he make choice of a certain place, than the place wasted shall be assigned to him. And this doth extend as well Co. 1 part Inst. fo. 200. a. b. 47 E. 3. 22. b. 2 H. 5. 1, & 3. to Tenants in common and joint-tenants for Life, as to an Estate of Inheritance: but if one Tenant in common or joint-tenant out of a Dove-house destroy the whole Flight of Doves, no Action of Waste doth lie in that case upon the Statute, but the other may have an Action of Trespass against him that destroyed them, quare vi & armis Columbare le Pl▪. fregit, & 200 Columbas Pret. 40 interfecit, etc. If a Lease be made to hold to one without any impeachment Co. 1 part Inst. f. 220. a. Vide Co. Reports, l. 2. f. 23. l. 9 f. 9 l. 12. f. 83. of Waste, than the Lessee may cut down Trees, and convert them to his own use; but if the words be, to hold without impeachment for any Action of Waste, then in th●● case if the Lessee cut dow● Trees, the Lessor shall hav● them, for the discharge extends but to the Action. If Lessee for Life grant a Co. 1 part Inst. f. 233. b. & 234. a. Rent-charge, and after doth Waste, and the Lessor recover in an Action of Waste, he shall hold the Land charged during the Life of the Tenant for Life; but if the Rent were granted after the Waste done, the Lessor shall then avoid the Grant made by the Lessee for Life. A Parson, Vicar, , Prebend, etc. may have Co. 1 part Inst. f. 341. a. 10 H. 7. 5. F. N. B. 55. d. & 57 c. an Action of Waste, and the Writ shall be said ad exhaeditationem Ecclesiae, etc. ipsius B, or, Praebendae ipsius A. If Tenant in Fee release to his Tenant for Life all his Co. 1 part Inst. f. 345. b. 42. F. 3. ● 23 F. N. B. 60. ●. 41 E. 3. Wast 83. 42 E. 3. 18. Right, yet he shall have an Action of Waste. And if Tenant in Tail make a Lease for his own Life, yet Idem Ibid. he shall have an Action of Waste. But if Tenant for Life be, the Remainder to another in Co. 1 part Inst. f. 345. b. 43 Ass. pl. 13.41 E. 3. Wast 83.11 H. 4.67.13 H. 7.10. Plo. Com. 482. Tail, and he in the Remainder release to the Tenant for Life all his Right and State in the Land; in this case he cannot afterwards have an Action of Waste. If the Lessor bring an Action Co. 1 part Inst. f. 356. a. 46 E. 3. 20. 8 H. 6.13.30 H. 6. 7. of Waste against his Lessee, the Lessee cannot plead generally Riens en le Reversion, but he must show how and by what means the Reversion is devested out of him. But if the Grantee of a Reversion bring an Action of Co. ubi suprá. Waste, the Lessee may plead generally, that he hath nothing in the Reversion. If a Bishop make a Lease Co. 1 part Inst. f. 356. for Life or Years and dies, and the Lessee, the See being void, doth Waste; in this case the Successor shall have an Action of Waste, And so if Lessee for Life be disseised, and Waste is done, Co. ubi suprá. and the Lessee reenters; here an Action of Waste lieth against him. If Lessor and Lessee for Years, etc. join in the cutting Mich. 18 H. 8 ●. Perkins, 202. down of 20 Oaks, etc. growing upon the Lands leased, the Lessor shall not punish the Lessee for the same. If the Lessee before his term begin enter into the Lands let to him, and do an Act which amounteth unto Waste, the Lessor shall not have an Action of Waste for the same. None shall have Judgement to Finch, l. 1. ch. 3. p. 29. recover in an Action of Waste, where the Waste comes but to 12d or such a petty Sum; for De minimis non curat Lex. If Waste be done upon Co. 2 part Inst. ●. 303. Reges. Prac. p. 343. Lands let for term of Years or Life, by one against whom the Lessee can have no Remedy in Law for committing the same Waste; the Lessee in such case is not punishable for the same by the Lessor, except there be a special Covenant in the Lease, that he shall not commit nor suffer Waste to be done. Note well, what hath been here said concerning Guardians in Chivalry and their Wards, is but only to show what the Law was formerly in those cases: for now by the Stat. of 12 Car. 2. chap. 24. Wardship (that former undoing of many Gentlemen) Primer-Seisins, and all Ouster le mains, etc. are quite taken away, and all hold now in free and common Soccage; and every Father, whether he be at age of 21 years or under, may by Deed executed in his life-time, or by his last Will and Testament in writing, in the presence of two or more credible Witnesses delivered, dispose of his Children under the age of 21 years, and not married at the time of his Death, for and during such time as they shall remain under the age of 21 years, or any lesser time, to the Custody and Tuition of any person or persons in Possession or Remainder, (Popish Recusants excepted:) and such Disposition of such Child or Children since the 24 Febr. 1645, or hereafter to be made, shall be good against all and every person and persons claiming such Child or Children, as Guardian in Soccage, or otherwise, etc. CHAP. XIII. An Abridgement of the Statute of the 43 Elizab. and the 15 of Car. 2. about the unlawful cutting, stealing or spoiling of Wood, etc. necessary for all Gentlemen to know. IF any shall be convicted by his own Confession, or by the Testimony of one Witness upon Oath, before one Justice of Peace, or Head-Officer, to have unlawfully cut or taken away any Grain growing, rob any Orchard or Garden, digged up or taken away any Fruit-Trees, broken any Hedges, Pales, or other Fences, cut or spoiled any Woods or Underwoods, standing and growing, or the like, or to have been accessary thereunto, he shall, within such time as the Justice or Head-Officer shall appoint, pay for the first Offence to the party grieved so much as the Justice or Head-Officer shall set down: and in case the party offending be not able to pay it, or do it not according to Order, than the Offender is by them or either of them (respectively) to be committed to the Constable, or other Officer of the Place where the Offence was committed, or the party apprehended to be whipped; and so for every Offence afterwards, and proved as aforesaid, the Offender is to have the like punishment of Whipping. If the Constable refuse or neglect to whip the Offender, any such Justice of Peace or Head-Officer may commit him to Prison without Bail, till he whip or cause to be whipped the party offending, as is above declared. No Justice may execute this Statute for Offences done to himself, unless he be associated with one or more Justices of Peace whom the Offence doth not concern. Stat. 43. El. ch. 7. Now the Statute of the 15. Car. 2. is an Additional Act to this, as follows. That every Constable, Head-borough, or other person in every County, City, Town Corporate, or other place where they shall be Officers or Inhabitants, shall have power to apprehend or cause to be apprehended such as they suspect for having, or carrying, or any ways conveying any Burden or Bundles of any kind of Wood, Under-wood, Poles, or young Trees, Bark or Bast of Trees, or any Gates, Styles, Posts, Pales, Rails, or Hedgwood, Broom, or Furze. If any person be suspected to have any such Woods, Underwoods, etc. any Officer, by Warrant under the hand and Seal of one Justice, may enter by virtue thereof into the Houses, Outhouses, Yards, Gardens, or other places belonging to such persons, and wheresoever they find any such, they may apprehend those persons, and also those who are suspected to have cut and taken the same, and carry them before a Justice of the Peace of the County, City, etc. and if he in whose custody such Wood, etc. is found, cannot give a good Account, which may be satisfactory to the Justice, how he came by the same with the consent of the Owner, or do not within a convenient time, set down by the Justice, produce the party of whom he bought the same Wood, Under-wood, etc. or some other credible Witness to depose upon Oath such Sale of the said Wood, Under-wood, etc. (which the Justice may administer:) that then the said person shall be deemed convict of the said offence of cutting and spoiling of the same Woods, Underwoods, etc. within the meaning of the before-recited Statute of the 43. of Eliz. and be liable to the punishment therein contained; and to pay over and above down presently, to the use of the Overseers of the Poor of the place where the Offence is committed, for the First Offence, such a sum, not exceeding 10, as the Justice shall appoint. And if the Offender shall not perform the Justice's Order herein to the Owner, and also to the Overseers of the Poor, than the Justice is to commit him to the House of Correction, for so long (not exceeding one Month) as he shall think meet, or to be whipped by the Constable or other Officer, as the Justice shall judge most expedient. And if such person shall again offend in the like kind, and be convicted as before, than he must be sent to the House of Correction for one Month, and be there held to hard Labour. And if he do offend the third time, and be convicted as before, than he shall be taken, adjudged, and deemed as an Incorrigible Rogue. If any buy any Burdens of Wood, etc. (as before named) which may be justly suspected to have been stolen or unlawfully come by; any Justice, Mayor, Bailiff, or Head-Officer within his Jurisdiction, may, upon complaint to him made, examine the matter upon Oath, which they may administer: and if he find that the same was bought of one that may be justly suspected to have stolen or unlawfully come by the same, he may then order the party that bought the same, to pay Triple the value to the party from whom they were stolen or unlawfully come by, and in default of present payment thereof, issue out his Warrant to levy the same by Distress and Sale of the Offender's goods, rendering the overplus to the owner of such goods; and for lack of such distress, to commit the party to the Gaol, there to remain without Bail for the space of one Month at his own charges. Note, that no man is to be punished by this Law, that hath been punished by a former Law for the same Offence: nor is any man to be questioned for any offence in this Statute, unless he be questioned for the same within six weeks after the Offence is committed. FINIS.