sssiaMSijft' Oigifizeti by Microsoft® Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FiRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN andBLLEN D, WILLIAMS Digitized by Microsoft® * wilmilML'.!!^ Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Corneii University Libraries, 2007. You may use and print this copy in iimited quantity for your personai purposes, but may not distribute or provide access to it (or modified or partiai versions of it) for revenue-generating or other commerciai purposes. Digitized by Microsoft® The original of tliis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive..prg/de,tails/cu31 924021 636836 '^ DigiEzed by Microsoft® Digitized by Microsoft® A CONCISE VIEW OP THE LAW OF LANDLORD AND TENANT, mOLTJDING THE PEACTICE IN EJECTMENT. SECOND EDITION. BY JOSEPH HAWOETH EEDMAN, OF THE MIDDLE TEMPLE, ESQ., BAKBISf AutJior of "A Concise Treatise on the Law of Arhitrations and Awards," and "A Treatise on th& Law of Bailway Companies as QarrierSy^ GEOEGE EDWAED LYON, OF THE MIDDLE TEMPLE, ESQ., BAREISTER-AT-LAW ; AutJior of "A Handhooh of the Law of Bills of Sale.*^ LONDON: EEEVES & TUENEE, 100, CHANCERY LANE; CARET STREET; & 196, STRAND, Digitized dj^X^crosoft® LONDON : PKINTED BY C. T. KOWOETH, BEEAJi'S BTITLBrtfGS, CnANCEEY BANE. Digitized by Microsoft® PREFACE TO THE SECOND EDITION. A LARGE First Bijiti^n of this Work having been exhausted within two years of its publication, and it having been now for some time out of print, the Authors are encouraged to hope that, with the additions and corrections embodied in this Edition, it may meet with the approval of the profession and the public. Temple, June, 1879. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE -FIRST EDITION. Questions as to the law governing the relationship of landlord and tenant are matters which every lawyer in practice is required to advise upon almost daily. As he is often bound to form and act upon an opinion at once, it is of the greatest importance that he should have at hand the means of informing himself quickly what the law, as modified by statutes or decisions, then is. The Authors, therefore, venture to hope that, in consequence of the recent alterations effected by statutes and by the decisions of the courts in this branch of the law, a new work upon the subject may be acceptable to the public. They have endeavoured, while avoiding as much as possible merely historical statements of law, to deal concisely with every portion of the subject which is of practical importance and fairly within the scope of a work of this description. Their aim has been to produce a work not too elaborate or bulky to be easily referred to, and not too meagre to be usefiil when referred too. How far they have succeeded the profes- sion and the public must decide. 5, Esses Couet, Temple, E.G., June, 1876. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. Index oe Cases Index os Statutes CHAPTER I. Inteoductoet . . CHAPTER II. Capacity op the CoNiEACTiNa Paetees. Sect. I. — Who may be Lessors . . . . . . . . . . i o II. — Who may be Lessees . . . . . . . . . . 43 CHAPTER III. What iuy be demised . . . . 49 CHAPTER IV. The Demise — its Requisites and Natttee. Sect. I. — Leases . . , , . . . . . . . . . . .50 II. — Agreements for Leases 76 III. — Stamps 92 Digitized by Microsoft® VIU COXTEXTS. CHAPTER V. Eights and Liabilities oi' the Parties Dtmma the Continuanoe op THE Tenancy oiheb than those connected with Disteebs. Sect. I. — Quiet Enjoyment .. 98 II. — Repairs . . 104 III.— Cultivation .. 114 IV.— "Waste .. 118 V. — Eestriotions on User of the Premises . . . . 122 VI. — Insurance . . .. 129 VII.— Rates and Taxes .. 130 VIII.— Rent .. 136 CHAPTER VI. Disteess .. 154 CHAPTER VII. Remedies foe Iekeguiae, Excessive oe Illegal Disteess 188 CHAPTER VIII. How Tenancies Deieemine 195 CHAPTER IX. Rights and Liabilities op the Paeties on the Deteemination OP THE Tenancy. Sect. I. — Fixtures 215 II.— EmUements 224 III. — Away-going Crops and other Tenant Rights . . . . 227 IV. — Compensation for Improvements under the Agricul- tural Holdings Act, 1875 233 V. — Tenant's Liability for Holding over . . , . . . 241 Digitized by Microsoft® CONTENTS. • 12C CHAPTER X. PAGE ASSIONJIENTS AND UnDEE-LEASES 247 CHAPTER XI. Ejectment. Sect. I. — On the Action for tte Recovery of Land . . , . 267 II. — Upon tlie Practice in an Action for the Recovery of Land 283 III. — Actions in County Courts for the Recovery of Land . . 327 IV. — Recovery of Small Tenements in County Courts . . 357 V. — Recovery of Small Tenements before Justices . . . . 370 VI. — Recovery of Deserted Premises . . , . . . . . 376 APPENDIX. (A.)— Stamp Duties 381 (B.) — Agricultural Holdings (England) Act, 1875 . . . . 385 Index 403 Digitized by Microsoft® Digitized by Microsoft® INDEX OF CASES. PAGE Abinger v. Ashton 124 Ablett V. Sldimer .... 287, 288 Ackland v. Lutley 65 Acooka V. Phillips 139 Adams v. Gibney 15, 98, 99 V. Grane 163, 164 Agar V. Young 11 Alchome v. Gomme 38, 158 Aldenburgb V. Peaple 160 Alexander, i'j;j5ff>-fe 47 Alford V. Vickery 212 AUen V. Anthony 252 V. Fhoker 181 V. GreensOl 277 V. Kennet 284 Amfield f. White 132 Anderaon v. Midland Ey. Co 3, 155 Andrew v. Hancock 145 Andrews v. Paradise 103 AngeU V. Diike 91 Anon., Dyer, 345 207 Leon. 227 66 2 Leon. 220 39 IMod. 180 66 Moore, 7 185 - — - Poph. 4 42 Anworth v. Johnson 1 04 Arden «i. Pullen 106 Arlett V. EUis 24 Armitage v. 'PitzwiUiam . . 309 Amison, Ex parte .... 184, 203 Amsby v. Woodward 270 Arran v. Crisp 133 Ashcroft ». Bourne 379 Ashfield V. Ashfield 39 Ashmore v. Hardy 174 PAQE len V. Seddon 249 Attack V. Bramwell . . 189, 191 Att.-Gen. V. Brooks 34 V. Cox 199 V. Cross 34 v. Fullerton 110 V. Hotham 34 V. Owen 18, 34 V. Stephens 116 • • V. Tomline 116 V. Tarmouth .... 33 Aubrey v. Fisher 120 Auriol V. Mills 258 Avehne v. Whisson 71 Avenell v. Croker 189 Avery v. Cheslyn 221 E. Bach i>. Meats 174 Back I'. Hay 322 Badcock, Ex parte 47 Badger v. Pord 24 Bagge V. Mawby .... 185, 186 Bagot J). Bagot 120 Bafley v. Sweeting 79 Baily v. De Crespigny .... 254 Baird v. Fortune 56 Baker v. Gostling 21 «). Greeniill 132 Baldwin v. Bauerman 302 Ball V. Eay 129 Ballard v. Agard 26 Bandy v. Cartwright 98 Bankart v. Tennant 89 Banks v. Rebbeck 360 Bannister v. Hyde .... 175, 186 Bargent v. Thompson 206 Digitized by Microsoft® INDEX OF CASES. PAGE Barker v. Barker 106 Barnard v. Gtodsoall 258 Barrett v. Eolpli 21 Bartlett v. Wright 56 Barton ». Dawes 58 Barwick v. Thompson 12 Basten v. Carew 378, 379 Bate V. Bolton 296 Bateman «). Allen 41 Baumann v. James 79 Baxter v. Browne 55 Baylls v. Le arcs .... 111,204 Bayliss ». Fisher 191 Beadelv. Pitt 131 Beal V. Pieling 310 Beale v. Sanders 6 Beardman v. Wilson 21 Beardmore v. Wilson 253 Beaty ». G-ibbons 231 Beanfort v. Bates .... 163, 217 Beavan v. Delahay .... 160, 232 . V. M'DonneU 42, 45 Beck V. Denbigh 163 . V. Rebow 217 Bedford v. Brit. Mus 128 Beioley v. Carter 15 Belcher v. M'Intosh 107 BeU V. Barohard 84 Bellingham v. Alsop 22 Benecke, Ex parte 47 Bennett, JUx parte 47 ■ V. Bayes ■ 186, 187 f. Brumfitt 82 . V. Ireland 6 V. Womack .... 83, 132 Berkeley v. Hardy . .' 53, 72 Berrey v. Lindley 6, 208 Bertel v. Neveux 81 Bertie v. Beaumont 8 Besley v. Besley 92, 98, 99 Bessell v. Landsberg 198 BetheU v. Blenoowe 206 Bettisworth's case 287 Bevan v. Habgood 37 Bickford v. Parson 248 Bicknell v. Hood 54 Bignellf. Clark 177 Birch V. Dawson 221 . V. Stephenson 144 !;. Wright 152 PAGE Bird V. Baker 64, 68 v. Elwes 108, 132 V. Higginson 51, 63 Birmingham Gas Co., JUx parte 162 Bishop V. Bryant 181 . V. EUiott 221, 222 V. Howard . . 6, 269, 361 Bishop of Cork v. Potter . . 309 Bissill V. WUUamson 357 Blake v. Albion Life Co. . . 315 ■ V. Foster 18 Blakesley v. Wheldon 84 Blatchford v. Cole 243 Bleakley ». Smith 78 Blewitt 1!. Dowling 300 Bliss V. Collins 148 Blount ». Pearman 94 Bluok v. Gompertz 82 Blyth V. Dennett 213 • V. L'Estrange 348 Boase v. Jackson 94 Boddy V. Wall 320 Bolton V. TonJin 72, 87 Bond V. Eosling 86 Bonnett f. Sadler 124 Bonnewell v. Jenkins 81 Booth V. Aloock ...... 60, 103 V. Macfarlane 246 Boraston v. Green 231 Bordier v. Burrell 322 Boroughes' case 139 Borradaile v. Smart 76 Boulton V. Reynolds 187 Bowes V. Croll 87 Bowers v. Nixon 143 Bracebridge v. Buckley .... 205 Bradbum v. Foley llo, 232 Bradworth r. Foshaw 320 Bragg V. Wiseman 10 Braithwaite v. Cooksey .... 161 Bramley v. Chesterton .... 242 Bram well «. Long 124 Brandon v. Brandon 159 Brashier v. Jackson 99 Braythwayte v. Hitchcock . 7 Brett D. Cumberland 73, 258 Brewer i>. Eaton 271 Brewster v. Kidgell 73 «!. Kitchell 133 Digitized by Microsoft® INDEX OF CASES. Xlll ^ ., '^^°^ Bridges v. Potts 207, 208 V. Smyth 155 Bridgland v. Shapter 49 Brocklington v. Saunders . . 87,228 Broder «;. Saillard .... 111,129 Broker v. Charter 37 Bromley v. Holden 174 Brook V. Fletcher 136 Brookes v. Drysdale . . 69, 83, 84 Brooks, Hx parte 224 V. Foxcraft 23 Brown v. Arvmdell .... 163, 164 1). Cocking 328 ■ V. Glenn 175 V. Quilter 106 i>. -Shaw 356 V. Shevill 163 V. Storey 38 V. Wales 116 Browne v. Amyot 147 V. JoddieU 45 V. Powell 141 Browning v. Dami 175 Brydges v. Lewis 248 Buckland v. Butterfield 219 V. Papillon 84 Buckley v. Buckley 297 V. Taylor 137 Buckworth v. Simpson. . 93, 249 Budding v. Murdoch 319 BuUj). Sibbs 151 BuUen v. Denning 62 Bullock V. Dommitt 109 Bulwer v. Bulwer 224, 225 BurcheU ». Clark 73 ■ ■ V. Homsby 122 Burdett v. Withers 107 Burgess v. Boetefeur 296 Bum i>. Phelps 145 Bume V. Cambridge 23 V. Eichardson 156 Burnett r. Lynch 99 Burt V. Haslett 222 Buszard v. Capel 69 Butcher v. Butcher .... 242, 267 Bute V. Thompson 142 Butler V. Duckmanton .... 2 • V. Meredith 299 Buxton V. Eust 79 Byrd v. Nunn 315 PAOE CabaUero v. Henty 252 Caldecott v. Smythies 231 Calvin's case 43 Camden v. Batterbury 8 Camidge v. Allenby 140 Campbell v. Hooper 45 «>. Loader 359,363 r. Wenlock 101 Caunan f. Hartley 198 Cannon v. Johnson 354 Capel f . Buszard 172 Capes V. Brewer 288 Capper, JSx parte 143 Capron v. Capron 148 Cardigan v. Armitage .... 63 Cargill 1). Bower 320 Carpenter i>. Parker .... 38, 102 Carr v. Cooper 296 V. Eoberts 69 Carroll v. Keays 252 Carstairs v. Taylor 106 Carter, Ex parte 264 Carter v. Carter 145 V. Williams 251 Cartwright's case 22 Cartwright v. Miller .... 78, 80 Gary u. Matthews 175 Cashin «;. Cradook 311,315 Castleman v. Hicks 178 Catling V. King 78 Caton V. Catou 81 Catt V. Tourle 127, 251 CatteU V. Ireson 92 Cavander v. Bulteel 252 Cave v. Mackenzie 82 Cawley v. Fumell 355 Cayley v. Walpole 79, 80 Chalenor v. Bolckow 135 Challenor v. Thomas 59 Chamberlain, In re 14, 16 Chandler v. Doulton 190 Chandos v. Talbot 121 Chaplain 4). Southgate .... 102 Chapman v. Bluck 52, 55 ■ ■ V. Towner 7 Chappell v. G-regory 105 Digitized by Microsoft® SIV IXDEX OF CASES. PAGE Cheetham !>. Hampson 104,116, 117 Cherry V. Heming 71 Chester v. Wortley .... 298, 308 Chesterfield v. Black 319 Chew V. Hoboyd 330 Chidley v. West Ham 217 Chileote v. Touldon 376 Child V. Stenning 104, 284 Chinnock v. Marchioness of Ely 80 Christy i>. Tancred 242 Christ's Hospital v. Harrfld 132 Church V. Brown 82, 84 V. Perry 308 Churchward v. Pord 152 Clark V. Gaekai-th 170 Clarke v. Cookson 322 V. Eoche 92 V. Eoystone .... 115, 230 1). Westrope 230 Clay V. Southeu 36 Clayton v. Blakey 4, 7 V. niingworth 88 Clegg V. Rowland 120 Clements v. WeUes .... 251, 265 Clerk V. Clerk 22 Clifton V. "Walmesley 143 Climie v. Wood 215, 218 Clinan v. Cooke 78, 79, 89 Clines' Trust, In re 148 Clowes ». Hughes 158 Clulow'a Estate, In re 147 Clun's case 147 Coal Consumers' Association, He 171 Cobb 1). Stokes 5, 1 95, 244 Cochrane, Us; parte 162 Cockshott V. London General Cab Co 323 Codd V. Brown 232 Coe V. Clay 99 Coghil V. Ereelove 258 Cohen v. Hale 140 Colbron v. Travers 131 Cole i". Green 119 V. Sury 136 1). West London Ey. Co 59 V. White 89 PAOB Colebeck i". Girdlers' Co. .. 106 Colegrave v. Dias Santos , . 222 Coleman v. Bathuist 64 Coles V. Trecothick 35 CoUen V. Gardner 35 CoUett V. Curhng 136 Collier v. King 3 Colyer v. Speer 150 Commins v. Scott 78 Congham v. King 259 ConoUy v. Baxter 151 Cooch V. Goodman 71, 72 Cook V. Corhett 182 V. Dey 288 V. Enohmarch 284 ■ ■ V. Guerra 138, 252 Cooke V. Cooke 35 ». Ocean Steam Co. . . 312 V. Wilson 36 Coomber v. Howard 136 Cooper, Ex parte 17 V. Eobinson 64 J). TwibiU 127 Copeland i>. Gubbins 197 Corder v. Drakeford 95 Cordwent v. Hunt 73 Cork (Bishop of) v. Potter . . 309 Cornish v. Cleife 108 V. Searell 11 V. Stubbs 15, 248 Cesser v. CoUinge 265 Cossey v. L. B. &o. Eail.Co. 346 Coster V. Cowling 95 Cotesworth v. Spokes . . 204, 273 Cottee V. Richardson 20 Cousins 1). Phillips 8, 199 Cousens v. L. D. Bk 357 Coutts «. Gorham 61 Coward v. Gregory. ... 110, 113, 114 Cowley V. Watts 78, 80 Cowper V. Fletcher 22 Cox V. Bent 7 V. Bishop 247, 257 V. Brain 49 V. Leigh 150 V. Middleton 73 Crabtree'a Settled Estates, In re It Cramer «). Mott 176 Digitized by Microsoft® INDEX OF CASES. XV PAGE Crane v. Jullion 288 Crawley v. Price 200 Creak J!. Justices of Brighton 377 Crisp V. Anderson 97 Crocker v. Fothergill 337 Croft V. Lumley . . 202, 204, 298, 299 Crom V. Samuels 313 Crook V. Hendry 2S2 ■ ^v. Seaford 89 Crosier v. Tomkinson . . 164, 165, 166 Cross V. Barnes 215 V. Jordan 273 Crosse «). Duckers 118 V. Eaw 134 Croucli V. Tregoning 256 Crowley v. Vitty 96 Crusoe v. Bugby 254 CuUey V. Spearman 159 V. Taylersoa 287 Cmnming v. Bedborough ■ . 136, 145 Curriers' Co. v. Corbett .... 61 Curtis V. Wheeler . . 21, 156, 265 Cuthbertson i;. Irving 11, 12, 37, 268 Cutting V. Derby 139, 244 D. Daore's case 288 Dakin v. Cope 204 Dalby v. Hirst 114 Dancer v. Hastings 160 Dane v. Kirkwall 42, 45 Daniel v. Gracie 68, 155 ji. Stepney 172 D. Waddington 67 Daniels v. Davison 252 Dann v. Spurrier 15, 68 Darby v. Harris 163, 224 Dargan v. Davies 179 DarEngton «;. Pritohard..ll, 373 Davenport v. Eeg 204 Davies v. Aston 169 PAGE Davies v. Connop 231 Davis, £lx parte 264 V. BuiTcU 270 V. Eyton . . 225, 254, 270 V. Gyde 141 V. Jones 78, 222 V. Morgan 153 V. Shepherd 58 Davison v. Gent 196 Davy V. Garrett 315 Davison v. Wilson 243 Dawes ii. Dowling . . 8, 152, 153 Dawson v. Cropp 186 Dayjj. Pynn 58 De Nichols v. Saunders . . 138, 142, 252 Deakin v. Permiall 93 Dean i). AllaUey 219 Debenham v. Digby 257 Delaney v. Fox 243, 372 Dendy, In re 14 V. Nicholl 204 Denn v. Cartright 5 V. Purvis 287 Dennett v. Atherton 102 Denton v. Eichmond 144 Derby v. Taylor 253 Bank V. Lumsden . . 348 Devonshire (Duke of) v. Barrow Co 134 Deykin v. Coleman , 314 D'Eyncourt v. Gregory .... 216 Dibble v. Bowater. . 139, 156, 173 Dickinson v. Dodds 81 Digby V. Atkinson 6, 109 Dillon 1). Lloyd 356 Disney v. Longboume .... 310 Ditton, Ex parte 263 Dobbs V. Passer 297 DobeU V. Hutchinson 79 Doble, Ex parte 259 Dod V. Monger 176 Dodd V. Acklom 196, 197 Dodson V. SammeU 262 Doev. '..... 210 ■ V. Abel 270 1). Adams 38 V. Alexander 273 W.Allen 128 V. Amey 7, 269, 361 Digitized by Microsoft® SVl INDEX OF CASES. PAOE Doe V. Archer 209, 210 V. Ashburner 54 V. Baker 207 ■ — - V. Bancks 29, 204 V. Barter 269 V. Batten 213, 245 V. Bayliss 290 V. Baytup 268 ■ ■ V. Beaufort 2 «>. Bell 4, 6, 277, 361 V. Bevan 254 ■ V. Biroi 204, 205 V. Bird 124, 125 V. Birkhead 287 V. Boast 277 V. Boulter 158, 271 V. Bousfield 25 V. Bowditoh 270, 272 V. Brewer 282 ■ V. Browne 5, 206 V. Buokuell 38 V. Burt 55 ■ V. Butcher 15 -V. Butler 210 V. Byron 272 V. Calvert 213 V. Carew 202, 253 ■ V. Carter 22, 30, 254 V. Cartwright 8 ■ ■ V. Chamherlaine 3 n. Chaplin 23 . v. Church 209 V. Clark 55 V. Clarke 123, 255 ■ V. Cock .... 286, 289, 293 V. Cooke 362 • V. Coombs 96 V. Cooper 199, 298 ■ ■ v. Courtney 197 V. Cox 3, 6 V. Crago 8, 269 V. Crick 213 ■ V. David 202 ■ V. Davies 6 V. Derry 8 • • v. Dixon 68 4). Dobell 208 • V. Donovan 208 j;. Dunbar 212 V. Dumford 206 PAGE Doe V. Dyson 273 V. Edwards 270 V. Elsam 127, 200 V. Field 275 ■D.Foster 11, 33, 211 ■ f . Franks 273 V. Galloway 57 V. Gardener 5 f . Gee 286 V. Geekie 73, 96 • V. Gladwin 129, 130 v. Glenn 260 V. Godwin 202 v. Golding 270, -271 V. Goldwin 211, 212 V. Gower 9, 33 V. Grafton 9, 66, 209 V. Green 6, 67 ■ • i>. Groves 55 V. Grubb 199 V. Guest 85, 123 V. Guy 37 V. Hawke 123 V. Hayes 36 V. Hazel 207 ■ V. Hitchcock 302 V. Hodgson 280 -•!;. Horn 361 «>. Home 11 «i. Horsley 271 ■ V. Houghton 96 V. Howard 209 v. Hughes 209, 212 V. Hulme 212 V. Humphreys 213 V. Ingleby 200, 202, 254 V. Inghs 276 O.Jackson 109,211 • V. Jenkins 15 V. Johnson 66 ■ V. Jones . . 3, 109, 205, 300 V. Keeling 124 V. Kightley 210 V. Kneller 270, 271 II. Knight 71 V. Lambly 209 V. Laming 255 • s!. Lea 210 V. Lewis 272 V. Lines 209 Digitized by Microsoft® INDEX OF CASES. XTll PAdB Doe V. Lloyd 46, 302 1!. Look 63 ■ V. Lucas 212 V. Mainby 5 V. Marohettl 201 V. Masters 203 V. Matthews 66, 209 JJ. Meux Ill V. Meyler 12 V. MiUer 287 V. Mills 268 ■ v. Mizem 211 v. M'Kaeg 3 • V. Morphett 211 V. Morse 3, 15 • D. Murless 212 V. Ongley 12, 270 V. Palmer 213 V. Pasquali 200 V. Paul 139 ■ V. PhiUips 200, 270 V. Poole 197 V. Powell 254, 269 V. PuUen 7 V. Pyke 199, 264 V. Quigley 8 ■ ■- V. Eamsbotham 11 V. Ehys 298 V. Kies 54 ■ V. Roberts 2, 10, 40 v. Robinson 211 «j. Roe 278, 282, 290 v. Rollings 199 V. Rotherham 276 {'. Rustworth 277 V. Samuel 208 V. Sandham 85 V. Sharpley 276 V. Shewiu 129 V. Smith 210 V. Snowdon 207, 209 V. Sotheron 288 v. Spiller 210 ■ ■ V. Spry 127 ■ V. Stanion 199 V. Stanton 301 ■ V. Stapleton 66, 209 . 1). Stennett 269 V. Stevens 200, 201 V. Stradling 301 E. & L. Digitized by PAGE Doe V. Stratton 7 V. Strickland 24 i\ Sturges 36 f . Summersett 23, 212 • V. Tauiere 7, 29 V. Terry 33 V. Thomas 30, 196 V. Thompson . . 12, 37, 269 • ». Thrustout 275 ■ V. Tressider 25 V. Turner 2, 4, 288 V. triph 65, 129 ■ ■ V. Viuce 211 V. Walters 211, 212 V. Wandlass 273 ». Watkins 209, 212 V. "Watt 200 V. Watts 15 ■ V. Weller 41, 208 V. WeUs 199 1). Whitehead 270 ■ V. Wiggins 72 V. Wilkinson 210 V. Williams.. 200, 212, 305 V. Withers 83 V. Wood 5, 197 V. Woodbridge 205 V. Woodman 213 V. WoodrofEe 289 V. Worsley 265 V. Wrightman 211 V. Tarborough 30 d. Anglesey v. Rue .... 276 d. Bailey v. Roe 289 d. Barles v. Roe 302 d. Bath V. Roe 290 d. Beard v. Roe . . 277, 283 d. Bennet v. Roe 289 d. Braby v. Roe 289 d. Bradford v. Roe 275 ■ d. Briggs V. Roe 303 ■ d. Burrows t>. Roe .... 293 ■ d. Butler v. Roe 297 ■ d. Cardigan v. Roe .... 275 d. Carter v. Roe 275 d. Caulfield v. Roe .... 277 . d. Chaffiey i). Roe .... 303 ■ d. Chippindale «. Roe. . 293 . d. Clothier v. Roe 289 d. Cock V. Roe 303 Microsoft® " XVlll INDEX OF CASES. Doe d. ■ d. d. d. d. d. PAGE CoUinsjJ. Eoe 303 Cousins V. Eoe .... 302 Cox V. Eoe 2V3 Diekens i>. Eoe .... 292 Einorben v. Eoe .... 303 Dixon V. Eoe . . 203, 271, 273 Fishmongers' Co. v. Eoe 292 Poucan V. Eoe 277 Poulies V. Eoe .... 286 Fraser v. Eoe 302 Rnlth V. Eoe 289 Frost V. Eoe 286 aeldart v. Eoe .... 277 Gibbard v. Eoe .... 289 Ginger v, Eoe 303 Gowland v. Eoe .... 278 Graeff. Eoe 290 Grange v. Eoe .... 290 Gretton v. Eoe 273 Grocers' Co. D. Eoe.. 297 Halsey ». Eoe 303 Harris v. Eoe 303 Harrison i>. Eoe 290 Heblethwaite v. Eoe 298 Hope V. Eoe 289 Hutchinson ». Eoe . 289 Johnson v. Eoe .... 293 Kenrick v. Eoe .... 289 Kirschner v. Eoe . . 292 Ledger «). Eoe.. 299, 305 Levis. Eoe.... 278, 303 Llandesilio v. Eoe . . 287 Lloyd V. Eoe 298 Mann v. Eoe . . 289, 290 Marks v. Eoe 278 Meyrick v. Eoe 297 Milner v. Eoe 282 Mingay v. Roe 302 MuUarkyi;.Eoe. . 297, 305 Newstead v. Eoe . . 275 Norman v. Eoe 293 Norris v. Eoe 281 Nottiget). Eoe 303 Overton v. Eoe 289 PamphUon v. Eoe . . 290 Parr v. Eoe 305 Pearson i\ Eoe .... 298 Pemberton v. Eoe . . 275 PAGE Doe d. Phillips v. Eoe .... 275 d. Pigott i>. Eoe 304 d. PoweU V. Eoe 273 ■ d. Eoberts v. Eoe. .288, 289 d. Eobinson v. Eoe 302 d. Eoyle v. Eoe . . 290, 303 • d. Sampson v. Eoe .... 278 d. Sanders i). Eoe 276 . d. SchoveU f. Eoe ... . 293 d. Selgood 1}. Eoe 270 d. Shaw V. Eoe 305 d. Slee V. Eoe 303 d. Smith i>. Eoe 280 d. , Bart. v. Eoe. . 292 d. Somers v. Eoe .... 292 d. Stainton v. Eoe .... 286 d. SirmmerviUe v. Eoe . 282 . d. Tarluy v. Eoe 303 ■ d. Thomson i). Eoe. . . . 297 d. Timothy v. Eoe 293 ■ d. Tindal v. Eoe 275 d. Troughton v. Eoe . . 297 d. Tucker f . Eoe 303 d. Vemou v. Eoe .... 28S d. Walker v. Eoe 290 d. Wame ii. Eoe 286 ■ d. Watts v. Eoe 27C d. Whitfield i). Eoe .... 272 d. Williams v. Eoe 302 d. Williamsons. Eoe . . 286, 289 d. Wingfield v. Eoe . . 290 Doherty v. Allman ,. 120 Dolling V. Evans 79 Doming, In re 19 Doughty V. Bowman 250 Dowell V. Dew 89 Doyle V. Kaufman 286 Drake, Ex parte 254 V. Munday 54 Draper v. Crofts 242 Dressier, Ex parte 264 Driver r. Lawrence 298 Drohan v. Drohan 37 Drury «. Pitch 35 ■ V. Macnamara .... 86, 99 V. Molins lis Dudley v. PoUiott 101 Dudley v. Ward 218 Dagar v. Norton 38 Digitized by Microsoft® INDEX OF CASES. XIX PAOE Dumergue v. Ramsey. . 217, 222 Dumpor's case 204, 256 Dunk V. Hunter 154 Dmm V. Bryan 121 Duppa V. Mayo 139, 203 Durham Ry. Co. v. Walker 63 Dumford v. Lane 35 Dyer v. Bowley 145 Dymond v. Croft 288, 294 Dyne v. Nutley 56 B. Eade v. Jacobs 309 Easterby «>. Sampson 250 Easton v. Pratt 17, 25, 107 Ecclesiastical Commissioners V. Merral 7, 27, 51 Eccles V. Eccles 357 Edge v. Strafeord .... 52, 77, 151 Edwards v. Dick 29 ■ f. Hodges 378 ■ V. Milbank 17 • «!. West 110 Eflord V. Burgess 149 Eldridge v. Stacey .... 175, 186 Elliott V. Ince 42 ■ • v. Johnson 248, 249 V. Rogers 151 Ellis V. Manchester Co 60 ■». Peaohey 363 EUiss V. Elliss 286 Elston V. Rose 328 Elwes V. Mawe 219 Elworthy v. Sandf ord 76 Emery v. Barnett 330, 360 Empson ». Soden .... 121, 219 England v. Slade 11 English Credit Company v. Arduia , 81 Erne v. Armstrong 211 ErsMne v. Adeane. . 91, 100, 117 Evans v. Davis 126, 201 ti. EUiott 38, 158 V. Mathews 354 V. Matthias 156, 355 ■ v. Prothero 79 V. Vaughau 102 Digitized by Evans ii. Wright 185 Everett i>. Collins 140 Ewart V. Graham 63 ExhaU Coal Company, In re 171 Eyles D. EUia 140 Eyre v. Cox 285 Eyston, £x parte 254 Eairolaim v. Shamtitle .... 298 Fairtitle v. GUbert 11 Earrall u. Davenport 89 Farraut v. Olmius 143 Faviell v. Gaskoin 232 Fearon v. Norvall 359 Fenn «). Harrison 35 ■ V. Smart 270 Fenton v. Clegg 37 Ferguson v. 104 Few V. Perkias Ill Field V. Mitchell 189 Fielden v. Slater 126 FilUter v. Phippard 105 Finch V. MUler 186 Finch's case 37 Findon v. M'Laren 163 Finlay v. Bristol, &c. Ry. Co. 27 Finney v. Forwood 348 Firth V. Bowling Co Ill Fitzgerald ». ViUiers 296 Fitzherbert v. Shaw . . . .219, 224 Fitzmaurice v. Bayley . . 36, 78 Fletcher ». Marillier 173 Flight V. Bentley 157 Flint ». Brandon 73 FUtcroft V. Fletcher 348 Foquet v. Moot 197 Fordham v. Akers 193 Forrest v. Davies 314 Foster, JEx parte 224 Foster ii. Green 353 Fowell ». Franter 68 Fowle ». Welsh 101 Fox V. Dalby '. 8 ■ V. Swann 254 V. Wallis 313 Frame v. Dawson 88, 90 Microsom) XX INDEX OF CASES. PAGE !Prancis v. Dowdeswell 353 V. Wyatt 165 SVanklitt v. Carter 145 V. Howes 257 FranklinsM v. Ball 38 Freeman v. Eosher 191 French v. Phillips 190 Frontin v. Small 72 Frosel v. Welch 25 Furber ». Sturmey 354 FumiyaU v. Grove .... 197, 198 G. Gage V. Acton 141 Gall V. Fenwick 260 GambreU. v. Falmouth 185 Gandy v. Jubber 112 Gange v. Lockwood 109 Gardiner «. Williamson 51, 156 Garlmg v. Koyd 322 Garrard v. Frankel 74 Gaston v. Frankum 44 Gearns v. Baker 104 Geary v. Physio 82 German i;. Chapman .. 126, 128 Gibbs V. Crmkdiank 158 Gibson v. Doeg 128 41. HoUand 79 . ^t;. Erk 151 V. Ireson 163 Gaiam V. Arkwright 174 GHliagham v. Gwyer 172 Gihnan ». Elton 163 Gisbonm v. Hnrst 163 Glyn V. Thomas ; 190 Golding V. Wharton, &c. Co. 321 Goode V. Howells 211 Goodland v. Blewith 141 Goodiight V. Cator 270 V. Cordwent 213 V. Mark 68 V. Richardson .... 195 V. Straphan 41 V. Vivian 119 Goodtitle V. Badtitle . . 297, 302 PAGE Goodtitle v. Herbert 3 D.Morse 12 • V. Saville 200 11. Southern .... 56, 57 Goodwin v. Longhiirst .... 25 Gordon v. Trevelyan 78 Gore V. Gibson 43 Gorely, JEx parte 109 Goring v. Goring 144 Gorton f. Falkner 162 V. Smart 125 Gott r. Gandy 105 Gouldsworth v. Knights 160, 268 Gowan D. Christie 143 Grace, JSx parte 39, 44 V. Bayntou 90 Graham v. AJlsopp 144 V. Campbell 81 V. Ewart 64 V. Tate - 136 Granger v. Collins 99 Graves r. Weld 22.5 Gray v. Bompas 213 Green v. Eales 108 V. James 11 f. Wroe 191 Greenaway v. Adams 255 Greene v. Cole 119 Gregory v. MigheU 88, 104 r. Wilson 205 Gretton v. Mess 80 GrifFeuhoofe v. Daubuz .... 131 Griffin «■. Scott 182 Griffith «!. Harrison 17 Griffithes v. Penson 57 Griffiths r. Puleston 231 r. Tombs 231 Grimman i\ XiQ^^e 199 Grimwood r. Moss 155, 205 Grindal's case 28 Grute V. Locroft 22,-12 Grymes v. Boweren 217,221 Gudgen v. Besset 151 Gunnestad v. Price 237 Gutteridge r. Munyard 107, 124 Guy V. Rand 287 Gwiunell v. Eamer 112 Gwynne v. Mainstone 67 Digitized by Microsoft® INDEX OF CASES. XXI H. PAGE HackLag r. Lee 354 Haines v. Welch 227 Haldane v. Johnson 140 V. Newcomb 107 Hale, JEx parte 137, 162 Hall, Hx parte 77 V. Ball 76 ■ V. Chandless 96 V. City of London Brewery Co. 84, 98 V. Comhes 56 Hamer v. Sharp 82 Hamerton v. Stead. . 7, 143, 196 Hamilton v. Clanrioarde .... 35 Hammersley v. De Biel 80 Hammond v. Sa-rill 288 Hampshire r. "Wickens . . 82, 84 Hancock «i. Austin. . 50, 154, 175 ■ V. CafEyn .... 54, 103 Hand V. Hall 52 Hands V. Slaney 44 Hanmer «). Fhght 306,310 Hanson v. Boothman 123 Harhord V. Monk 310 Harding v. Crethom . . 151, 242 — «). Metropolitan E. Co. 257 Hardwick v. Hardwick 56, 57, 68 Hare v. Horton 72 Harnett v. Maitland 119 Harrington i). Bytham .... 293 V. "Wise .... 54, 137 Harris D. James 112 V. Jones 106 ■ V. Morrice 49 . ». Shipway 141 Harrison v. Bamhy . . 142, 169 r. Barry 137 v. Blackburn .... 257 V. Good 125 — ^ V. Jackson 35 Hart V. Leach 184 ■ V. "Windsor 100 Hartley v. Owen 313 Hartshome v. Watson 204 Harvey v. Brydges 243 V. Harvey 221 Haseler v. Lemoyne 191 Hasluok V. Pedley 148 Hatch V. Hale 187 PAGE Havens v. Middleton 130 Hawkins v. Eutt 141 V. Walrond . . 118, 183 Hawtrey v. Butlia 215 Hayne v. Cummings 270 Hayter Granite Company, Be 172 Heap )'. Barton 223 Heard v. PiUey 82 Heather v. Pardon 129 Heatherley v. Weston 23 Hegan «;. Johnson 164 HeUawell v. Eastwood 217 Hellier r. Casbard 268 • V. Silcox 152 Hemingway v. Pemandez . . 260 Hemming v. Brabazon 46 Henderson v. Hay 84 V. Mears 146 V. Squire .. 241, 242 Henstead's case 23 Hersey v. Giblett 78 Hewetson v. Whittington Society 307 Hewitt V. Harris 208 Hext V. Gm 62 Hey V. Moorhouse 242 Hickman v. Isaacs 125 ■ V. Machin 153 Hicks V. Downing 21 B.m,£x parte 162 V. Barclay 113, 255 V. GUes 288 V. Graunge 59, 137 V. Kempshall 271, 272 V. Persse 357 V. Samiders 42 V. Wormsley 260 HiUingsworth v. Brewster . . 287 Hillman v. Mayhew . . 316, 317 HiU.=! V. Street 184 Hirst V. Horn 244, 276 Hobson V. Middleton 103 Hodgkinson r. Crowe .... 83, 84 Hodgson V. Gascoigne .... 160 Hodson V. Walker 363 Holding V. Pigott 115, 229, 231 Holland t>. Eyre 81 V. Hodgson . . 215, 216 J). Falser 138 Holme c. BrunsMU 74, 96, 197, 214 Digitized by Microsoft® xxu INDEX OF CASES. PAGE Holmes v. Blogg 44 V. Sixsmith 92 HoItzapfEeU v. Baker 110 Homer v. Homer 56 Honeycomb v. Waldron .... 75 Hook, Ux parte 264 Hooper v. Clark 250 Hopkins v. Helmore 138 V. Ware 140 Ho-^iaa, Ex parte 47 Hop-wood, V. Barefoot 132 Horrocks v. Rigby ■ 259 HorsefaU jj. Davy 174 V. Mather 104 V. Testar Ill Horsey v. -Grraham 77 Houghton 1). Koenig 97 How V. Kennett 4, 153 Howard v. Shaw 3, 152 V.Smith .... 269,361 V. Wansley 207 Howe V. Soarrott 42 Hoyle, In re 19 Hubert v. Treheme 82 Hudson V. Buck 81 . V. Stuart 82 HufEell V. Armistead 9 Hughes V. Clark 97 V. Met. Ey. Co 206 Humphreys i). Cousins 111 Hungerford v. Clay 38 Hunt V. Allgood 5 Hunter v. Nockolds 149 Huntley v. Russell 216 Hurst V. Hurst 133 Hurry v. Eickman 191 Hussey v. Payne 80 Hutchins D. Chambers .... 185 . V. Scott 58, 176 Hutchinson, In re 13 • ■ V. Puller 288 Hutton V. Warren 115, 122, 229 Hyatt V. Griffiths 6 Hydes.Warden 84, 201, 251, 253 I. Ibbs V. Richardson 242 Iggulden V. May 70, 98 Ingate v. Lloyd 292 PAGE IngUby V. Shafto 348 Ingram v. KJnowles 374 Isaacs V. Royal Ins. Co 65 Isherwood v. Oldknow 17 Itb v. Sams 62 Izon v. Gorton 110 J. Jaokman v. Hoddesden .... 25 Jackson v. Cator 15 Jacob V. King 192 Jacobs V. Seward 320 JacoDib V. Harwood 36 James, In re 39 ■ v. Crow 323 . V. Dean 6 I/. Landon 12 Jaques v. Millar 78 Jarman v. Lucas 296 Jeffierys v. Pair 142 Jeffrey v. Neale 133 Jeffryes v. Evans 103 Jegon V. Vivian 17, 124 Jemott V. Cowley 271 Jenkins i). Gethmg 219 V. Green' 30, 63, 66 Jenner D. Clegg 155,213 V. Tolland 169 Jenny v. Cutts 303 Jervis v. TomMusou. ... 64, 124 Jesus Coll. 'V. Gibbs 40 Jinks V. Edwards 99 John v. Jenkins 174 Johnson r. Jones 143 r. Mills 301 f. Smith 311 V. TJpham 186 ■ 11. Warwick . . 37, 260 Johnstone v. Hudlestone. . 5, 246 JoUy V. Arbuthnot 156, 160 Janes, Hx parte 262 . In re 285 V. Bone 125 V. Bridgman 197 V. Carter 204 . V. Chapman 373 V. Chappell 119, 120 r. Davis 325 V. Jones . . 70, 84, 88, 96 Digitized by Microsoft® INDEX OF CASES. •yyin PAGE Jones V. Marsh. 212 i>. Mills 200, 207 ' V. Morris 144 V. Owen 360 1}. Phipps 211 V. Keynolds 55, 153 V. Shears 124 «>. Thomas 361 V. Thome 125 1). Victoria Dk. Co. 79, 81 f. "Williams 64 Joule V. Jackson 166 Joynes i. Collinson 278 Juxdain v. Steere 22, 23 K. Kay V, Oxley 60 Kearley & Clayton, Se 262 Keates d. Earl Cadogan 100 Keating v. Keating 37 Keech v. Hall 37 Keen i). Priest 169, 191 Kelly V. Patterson 6, 209 Kemp V. Bird 128 ■ V. Derrett 4, 9, 66 V. Sober 124 Kennedy v. Lee 79 Kensey v. Eichardson 25 Kerby v. Harding 176, 186 Kerkm i'. Kerkin 359 Kerslake v. "Wlite 55 Ketsey's case 39, 44 Kibble, Hx parte 40 King V. Cooke 319 v. England 183 King's Leaseholds, In re 67, 206 Kitohing ». Kitohing 284 Knight V. Benett 7, 156, 160, 232 i>. Cox 152 V. Gravesend Water Co 69 . V. Symms 288 Knipe v. Palmer 35 Kooystra i>. Lucas 55 Kronheim v. Johnson 81 Kusel V. Watson 67, 206 L. PAGE Lamb «). Brewster 131 Lancaster, Duchy of, In re. . 39 • V. De Trafiord .... 78 Lapiere v. Germain 286 Latham v. Spedding 360 Laviea, In re 223, 264 La'wi;pnce v. Jenkins 117 Lawton v. Lawton .... 218, 221 ■ V. Salmon 218 Layton v. Hurry 180 Leach v. Thomas 221 Leader v. Homewood 223 Lear v. Edmonds 149 Lee V. Cooke 185 V. Risdon 219 V. Smith 6, 137 Leeds v. Cheetham 109 Legg D. Strudwick 4, 21 Legh V. Heald 62 ». Hewett 114,115 Leigh V. Shepherd 159 Lehain v. Philpott ........ 149 Lester v. Foxcroft 88 Levy V, Lewis 11, 152 Lewis V. Brass 80 V. Read 191 Lichfield v. Green 140 Liddy v. Kennedy 212 LOley V. Harvey 330, 359 LiUie V. Legh 88 Limmer Co. v.- Liland Rev. . 95 Lindley v. Lacey 91 Lindsay v. Lynch 89 Line v. Stephenson 70, 99 Lingham v. Warren 149 Litton V. Litton 319 Llewellyn v. Jersey 58 V. WUhams .... 65 Lloyd V. Crispe 254, 256 V. Jones 330, 360 ■ V. Roshee 244 -J). TomMes 103 JAjanGoaX Go., Ex parte 47, 265 Loader v. Kemp 113 Lock V. Furze 101 Lockwood 1). Wilson 133 Lofft V. Dennis 109 Lomax V. Kilpin 296, 302 Digitized by Microsoft® XXIV INDEX OF CASES. PAGE London and North Western Ey. Co. V. Gamett.. 125, 126 V. Grace . . 355 ■ V. West 12, 268 London and South-Westem Ey. Co. V. Flower 113 London Loan Co. «/. Drake 223 Lovering, Jj!x parte ........ 263 Lovelock 1). Lancaster . . ... 298 V. Frankland 94 Lowe V. Griffiths 44 V. London and North- western Ey. Co 153 Lucas !). Tarleton 182, 189 Ludwell V. Newman 102 Luker v. Dennis 127, 251 Lumley v. Metrop. Ey. Co. 127 Lundy Granite Co., Jie .... 171 Luxmore v. Eobson 1] 3 Lyhum v. Warrington .... 73 LydaU «!. Martinson 323 Lyde v. EusseU 221, 222 Lyle v. Eichards 58 Lyme (Mayor of) v. Henley 73 Lyon v. Eeed 11, 196 f. TomMes 184,185 1). Weldon 181 Lyons v. Elhott . . 163, 164, 165 M. M'AUum V. Cookson 355 M'Murray v. Spicer 78 Macher v. Foundhng Hosp. 127 Mackay v. Mackreth 21 Mackenzie v. Hesketh .... 74 Maddon v. White 39 Mag. CoU. Oxon. i>. Att. -Gen. 34 Mag. Hosp. (Gov. of) v. Knotts 29, 268 Magee v. Lavell 143 Mahony 4). National, &c. Fund 346 Maitland v. Mackinnon .... 56 Makin V. Watkinson 113 Maldon's case 54 Mallam v. Arden 137 Malpas V. Ackland 20 Mann v. Lovejoy 4 V. Nunn 91 Manning v. Fitzgerald .... 58 PAGE Manning v. Lunn 132 Manser v. Back 36 Mansfield v. Blackbtime 218 Mantle v. WoUington 23 Mantz V. Goring 106, 108 Markhy, In re 147 Marsh v. Dewes 330 V. Pontefract 305 Martin v. Davis 288, 300 V. Eoe 219 V. Smith . . 6, 63, 86, 87 • V. Strachan 269 Martyn v. Clue Ill «). Nichols 288 V. WUhams 250, 252 Marwood v. Waters 360 Master «. Hansard .... 61,128 Masters v. Farris 191 Matthias «. Mesnard 163 Mattock V. Heath .... 311, 346 Maundrell, £x parte 230 Maw V. Hindmarsh .... 85, 123 Maybury v. Mudie 276 Mayer, In re 71 Mayhew v. Suttle S McDonnell v. Pope 196 Mellor V. Watkins 199 Meroier v. Cotton 310 Merrill^). Frame .. 70, 101, 102 Merry, In re 13 Messent v. Eeynolds 98, 99 Met. Ey. Co. v. Defries .... 152 Midland Ey. Co. v. Checkley 62 Miles J). Furber 163,166 Miller v. Maynwaring 42 MilUner v. Eobinson 24 MiUissich V. Lloyd 322 Mills V. East London Union 114 V. GofE 211 V. Grifaths 130 Minnehaha, The 308 Minton v. Geiger 59 MoUett D. Brayne 198 Molton r. Camroux 42, 45 Monk V. Cooper 110 V. Noyes 108 Moore, ISj; parte 263 V. Eobinson 123 Moores V. Cheat 257 Morgan v. Bisaell 54 Digitized by Microsoft® INDEX OF CASES. XXV PAGE Morgan v. Daviee .... 207, 208 V. G-rifaths 91 V. Pike 72 V. Thomas 260 Morland v. Cook 251 Morley v. Pincombe 167 Morphett v. Jones 88, 89 Morris v. Ebne 35 Morrison, v. Chadwick 104 Mortimer v. Preedy ' 152 Morton v. Woods 11, 158 Mosely v. Virgin 113 Moses V. Taylor 124 Mossf. GaUimore.. 37, 158, 159, 176, 252 V. James 198, 223 Mostyu V. West Mostyn Coal Co 99, 316 Mouflet V. Cole 127 Moule v. Garrett 258 Mountney v. CoUier 11, 330 Moyle V. Mayle 120 Muncey v. Dennis 115, 229 Mundy v. JoUiffe 88 Musgrave v. Homer 118 Muspratt v. Gregory . . 165, 166 N. Nargatt 4". Nias 169 Na,sh«. Gray 138 V. Lucas 175 4>. Palmer 101 Naylor v. Amitt 20 V. Collinge 222 t). GoodaU 78, 79 Neale v. Mackenzie. . . . 145, 156 V. Parkin 58 V. RatclifE 110 Nelsoni). Liverpool Brew. Co. 112 Nene Valley Co. v. Dunkley 79 Nesbit V. Meyer 88 Nesham v. Selby 78, 80 New Brit. Mut. Inv. Co. v. Peed 310, 311 New West Brew. Co. ». Han- nah 323 Newby v. Van Oppen 292 • ■ V. Sharpe 100 Newington v. Levy 318 PAGE Newman, Se 143 1). Anderton 155 Newmaroh v. Brandling. ... 49 Newton v. AUin 104 Niblet V. Smith 192 NiohoUs v. Atherstone 197 V. Cross 94 Nicholson v. Smith 95 Nokes V. Gibbon 113, 206 Norris v. Carrington 354 41. Harrison 139 North Western KaU. Co. v. M'Miehael 44 North York Iron Co., JRe . . 171 Northwick (Lord) u. Stanway 24 Nunn ff. Pabian 89 Nurse v. Frampton 53 Nuttall V. Staunton 160 0. Oake V. Mooreoroft 295, 296 Oakley v. Monck 8, 87 Oastler «. Henderson 198 Gates V. Coates 302 O'Donoghuej'.CoalbrookCo. 144 Offley ». Clay 141 Oldroyd v. Crampton 49 Ongley v. Chambers 59 Onions v. Cohen 102 Onslow v. ■ .. 114,228,233 ■ V. Corrie . . 247, 258, 259 Oppenheimer v. Brit., &c.. Bank 171 Opperman v. Smith 174 Osbom V. Wise 49 Owen V. Legh 170 f. Thomas 78, 79 Owens V. Wynne 185 Oxley V. James 21, 2Go P. Paget V. Poley 149 Palfrey ». Baker 141 Palmer's case 288 Palmer v. Earith 131, 133 V. Edwards 253 V. Strange 185 f . Thoi-pe 26 Pamer v. Stabick 185 Digitized by Microsoft® XXVI INDEX OF CASES. PAOE Pape V. Lister 3i6 Papillon V. Brunton 213 Parish v. Sleeman 132, 133 Park Gate Co. i>. Coates . . 354 Parke, Bx parte 158 Parker u. G-reen 92 V, Harris 68 ■ t). Pliimmer , . 59 i>. Taswell 53, 86 . ■«>. Whyte 100,251 V. Winlow 36 Parmeuter v. "Webber 253 Parry v. Deere 95 V. Dtrneau 173 ■ ■ V. Hitidle 42 Parsons v. Gingell 166 V. Hiad 217 Partridge v. Ball 51 Pattison v. Gilford 104 Paul 1). Nurse 259 Paull V. Simpson 262 Payne v. Haine 107 V. Eogers 112 Pease v. Coates 126 Peachy v. Somerset 206 Peacock v. Harper 324 Pearoe v. Davis 140 • V. Watts 63 Pearson D. Glazebrook. .330, 331, 359 . V. Turner 348 Pedleys. Dodds 56 Peek V. Matthews 128 Pember v. Mathers 257 Pemble v. Sterne 288 Penfold V. Abbott 99 Penniall v. Harbome 129 Pennington v. Cardale .... 29 Peniy v. Brown 108, 222 Penton v. Bobart 219 Perring v. Brook 55 Peter r. Kendal 49, 197 Phene v. Popplewell 198 PhiUips 1!. Alderton 89 V. Bridge 203, 271 . V. Henson 168 V. Jones 143 • V. Maier 252 . r. Eouth 308 v. Whitsed 190 PA&E Phillipps o. Smith 119 Philpot V. Hoare 259 Philpott V. Dobbinson 22 V. Lehain. . 149, 182, 185 Phipps V. Soulthorpe 11 Pierce v. Corf 79 PUbrow V. PUbrow, &c. Co. 292 Piggott V. Birtles . . 170, 182, 190 Pigot V. Garnish 38 Pike V. Eyre 21, 265 PiLcher v. Hinds 284 Pilley V. BayHs 322 Filton, Hx parte 378 Pindar ». Ainsley 106 Pitman ;•. Woodbury 72 Pitt«. Shew 163, 182 V. Snowden 159 Pitten V. Chatterburg 307 Pleasant v. Benson 212 Polden V. Bastard 60 PoUitt V. Porrest 143, 154 PoUock V. PoUock 148 Pomery v. Partington 17 Pomfret v. Eioroi't 103 Ponsonby v. Adams 122 Poole's case 163, 218, 222 Poole j;. Adams 110 V. Bentley 54 V. LongueviUe 166 Pooley, lie 262 Pope r. Biggs .... 37, 142, 158 Popple and Barrett's Cont. . . 68 Potter «;. Duffield 78 Potts r. Smith 103 Poultney v. Holmes 21 Pow r. Davis 36 Powell V. Smith 68 Powis V. Dynevor 88 r. Smith 142 Powley V. Walker 114 Powys t>. Blagrave 122 Poynter v. Buckley 183 Poyntz 1!. Fortune SS Pratt V. Brett 120 Preece v. Corrie 21, 156, 253 Pretty v. Bickmore 112 Price V. Dyer 68 V. Griffith 78 V. Jenkins 259 . r. Salusbury 90 Digitized by Microsoft® INDEX OF CASES. XXVU PAOE Price V. Williams 30 • V. Worwood 205, 273 Prince's case 37 Propert v. Parker . . 81, 82, 85 Prosser v. Phillips 95 Proud V. Bates 63 ProudloTe a;. Twemlow 189 Pugh 4). Arton 223 V. Leeds 65 Pulbrook V. Lawes 90 Pjrm i>. Blackburn 109 Pynea;. Dor 122 Q. Quarrington v. Arthur .... 124 Quincy, JUx parte 221 R. Kabbidge, Hx parte 262 Pamsden v. Dyson 89 Hand v. Vaughan 173 Randle v. Dean 175 Hands v. Clark 244 EawlLngs v. Morgan 114 EawlLtiB V. Biggs 134 . V. Turner 51 Rawson v. Maynard 287 Read v. Burley 164 Rede?;. Parr 204 Reed v. Deere 96 Rees V. Davies 376 V. KiDg 203, 273 v. Perrott 212 Reeves v. CatteU 126 Reg. «). Aylesbury 133 V. Chawton 5 V. Edmundson 237 V. Hall 26 V. Hammond 277 ti. Morrish 60 . a. NevHle 237 V. Sewell 377, 379 V. Surrey 302 t>. Thurlstone 6 V. Watson Ill Regent United Serv. Ass., JJe 171 Regnart v. Porter 154 PAGE Ren V. Bulkeley 17 Rennie v. Robinson 152 Reuss V. Picksley 81 Reviere v. Bower 61 Rex V. Aldborough 20, 22 — ■ — ■ ». Bedworth 142 • V. Cambridge 32 ■ V. Castle Morton 93 V. Cheshunt 9 V. G-rampound 320 ■ V. Homohurch 24 V. Kelstem 9 V. Nicholson 49 f. Otley 216 V. Scot 133 ». St. Dunstau 221 V. Sutton 38, 39 ». Topping 202 ». Wait 36 V. Wilby 24 V. WUson 20 Reynard v. Arnold , . ^ 110 Reynolds, Hx parte 47 V. Pitt 206 Rhodes v. Bryant 296 Rich V. Basterfield 112 V. WooHey 180 Richards, Jre re 216 ■ V. Re-ritt 128, 251 ■ V. Richards 269 Richardson v. Ardley 222 ». Gifford .... 6, 87 V. Langridge . . 3, 4, 5 Ridg-way v. Sneyd 143 . V. Stafford 183 „. Wharton 80 Rigby ». G. W. Ey. Co 69 Right i: Darby 207 V. Wrong 302 Riley v. Baxendale 320 Bippiner v. Wright 93 Riseley v. Ryle .' .■ . . . 150 Rishton v. Whatmore , 79 Roach V. Garvan 38 Roads V. Trumpington 50 Robbins v. Jones 112 Roberts, £e 162, 224 . V. Barker .... 115, 230 1). Davey 204 V. Tregaskis 206 Digitized by Microsoft® xxvm INDEX OF CASES. PAGE Robinson v. Grave 60 V. Hofman .... 142, 159 ■ ■ V. Learoyd 245 V. Lenaghan. . 337, 362 V. Waddington . . 182 Eobson V. Flight 20 Rochester v. Pierce 153 Roden*. Eyton 181,189 Rodgers ». Parker 170,189 Rodwell V. Eden 36 Roe V. Charuock 207 f . JDavies 319 ■ ■ «. Davis 269 V. Doe 207 V. Harrison . . 73, 205, 254, 255 ». Hayley 68 ■ v. Lees 6 V. Moore 281 V. Paine Ill 1). Pierce 211 ■ V. Sales 256 ». Street 212 ■ • 1). StLmmerset 36 1). Ward 208 Roffiey V. Henderson 223 Rogers v. Birkmire 172 V. Humphreys 37, 142, 158 ■ v. Kingston Dock Co. 207 V. St. Germans' Union 63 RoHe V. Peterson 143 Rollason ■;;. Leon 86 Rolph V. Crouch 102 Romilly r. Fyoroft 273 Roper f. Bumford 141 . 1). Williams 128 Ross V. Fiddon 106 Rossiter v. Miller 78,80 Routledge v. Grant SO Rowe V. Erenton 75 Rowles 1). Mason 46 Rowley v. Adams 262 Royston v. Eccleston 287 Rubcry t). Stevens 262 Russell, Jlx parte 166 V. Knowlcs 276 V. Rider 176 • i\ Shenton .... 104, 111 Rutland V. Doe 137 Ryan v. Shiloock 175 PAGE Ryan v. Thompson 146 Bylar, In re 14 Ryley i). Hicks 62 S. Sacheverel v. Frogate 69 Saint V. Pilley . . . . 197, 199, 223 Salaman v. Glover 91 Sale i>. Lambert 77 Salisbury's case 29 Salmon v. Smith 145 Salter v. Grosvenor 46 Saltoun V. Houston 69 Sampson ». Easterby 69 Sandill n. ErankKn .... 66, 209 Sanders v. Kamell 87 Sanderson v. Graves 91 Sandilands, In re 71 Sandiman v. Breach 237 Saner t'.Bilton.... 107, 113, 146 Sapsford v. Fletcher 144 Saunders v. Musgrave .... 7 Savage v. Dent 289, 293 Savil's case 288 Savile v. Bruce 16 Scaltock V. Harston 252, 270 Selby V. Greaves 154 Semayne's case 175 Sewell V. Jones 328, 330 Sharp V. MiUigan 85 Sharrock v. Lend. & N. W. Ry 355 Shaw V. Cofan 200 . V. Earl of Jersey 191 V. Kay 64 . );. Stenton 103 Shaw's Trusts, In re 20 Shepheard ('. Beetham .... 61 W.Walker 86 Sheppard v. Hong Kong Banking Corporation .... 255 Sherrington v. Andrews .... 135 Shilhbeer v. Jarvis 88 ShirrefB «. Hastings 150 Shopland v. Ryoler 35 Shrimpton v. Carter 302 Simmons v. Norton 120 Simons v. Farren 126 V. Patchett 36 Digitized by Microsoft® INDEX OF CASES. XXIX PAOB SimpMu V. Ashurst 2 Simpson v. Hartopp 167 V. Scottish tJnion Ins. Co 109 Sims V. Prosser 302 Six Carpenters' case . . 186, 188 Sketchley v. ConoUy 309 Slack's Settled Estates, Re.. 14 Slack V. Crewe 36 • V. Sharpe 47 Slater v. Brady 39 Slatterie v. Pooley 269 Sleap «. Newman 261 Sloper V. Saunders 152 Smey v. Brown 49 Smith V. Ashforth .... 178, 189 V. Barrett 27 V. Chance 232 V. Egginton 249 V. Goodwin 187 V. Harwich 70 ■!). Henley 93 V. Humble 135 V. Jersey 273 ■ ■ V. Low 12 V. Marrable 101 V. Martin 59 V. Render 220 V. Tett 279 V. Webster 80, 82 V. Wedderbume .... 296 . 4). "West 306 V. Widlake 8, 252 V. Wright 178 Smyth, Bx parte 139 f. Carter 119 — j>. North 264 Sneezum, Be-. 264 Snelgar v. Henston 23 SneU V. Finch 169 Solomon, Me 264 . V. Solomon 260 Somerset «). Eog well .... 49,51 Soprani v. Skurro 72 Soulsby V. Neving 245 Soward v. Leggatt 108 Spencer's case, .49, 248, 249, 250 Spike V. Harding 116 Sprightly v. Dunch 303 St. Alban's v. Battersby . . 126 PAQE St. Alban'a v. EUis 70 St. Losky V. G-reeu 320 St. Saviour's (Southwark) v. Smith 258 Stafford v. Gardner 233 Staines v. Morris 257 Standen v. Chrismas . . 152, 248 Stanif orth v. Eox 54 Stanley ». Dowdeswell .... 81 V. Hayes 102 ■ ■ V. Towgood 106 Stansfield v. Portsmouth . . 223 Staveley v. Alcock 157 Steele v. Mart 53, 65 Steevens' Hosp. i>. Dyas . . 27 Stephens, Ex parte 223, 264 Stevens v. Copp 250 Stevenson v. Lambard .... 146 Stoate V. Rew 348 Stockton Iron Co., i2« 162 Stone V. Dean 354 Story V. Johnson 23 Strachan v. Thomas 161 Stranks v. St. John 99 Stratton v. Pettit 86 Strickland v. Maxwell 232 Sturgeon v. Wingfield .... 12 Styles v. Wardle 53, 65 Sucksmith v. Wilson 232 Sugg V. Silber 322 Sumner v. Bromilow 222 Surphee «. Famsworth 113 Sutherland v. Briggs 88 Sutton V. Temple 100, 153 Swaine v. Holman 44 Swansborough v. Coventry 60 Swansea Bank v. Thomas . . 148 Swann v. Eahnouth 176 Swatman v. Ambler 72 Sweeny v. Sweeny 212 Sweet V. Seager 133 Swift V. Nun 308 Swinf en v. Bacon 244 . Swire v. Leach 163 T. Tagg 11. Simmonds 302 Tancred v. Christy 242 V. Leyland 190 Digitized by Microsoft® XXX INDEX OF CASES. PAGE Tanham v. Nicholson 212 Taunton v. Costar 242, 267 Tawell V. Slate Co 283 Taylersou v. Peters 161, 378 Tayleur v. 'Wildin. . 74, 213, 214 Taylor v. Cole 267 V. Gillott 199, 264 ■ V. Horde 17, 83 ■ V. Jones 314 V. Slrnm 259 V. Taylor 14, 16, 20 V. Zamira 145 Tennant v. Keld 177 Terry «). Asliton Ill Theed v. Starkey 133 Thomas v. Brown 78 -0. Cook 196 V. Harries 178 ■ V. Hayward 250 v. Packer 6, 87 Thompson, Se 162 V. Hakewell . . 24, 142 V. Ingham 330 V. Lap worth .... 134 • r. Mashiter 163 V. North Brit. Ey. Co 291 V. Tomkinson .... 298 Thornton v. Adams 173 . V. Sherratt 127 Thorp, In re 20 V. Holdsworth 315 Thorpe v. Eyre 230 V. Milligan 59, 224 Thresher v. East London Water Co 108, 224 Throckmorton, In re 254 Thrustout D. Coppin 37, 42, 290 Thunder v. Belcher 37 Thursby v. Plant 248, 258 Tidey v. MoUett 63, 86 Tidswell v. Whitworth 134 Tildesley v. Clarkson 106 Tm, Ex parte 162 TUney v. Norris 261 Timmins V. Eowlinson 206, 245 246 Tisdale v. Essex 54 Todd?;. EUght 112 Toleman v. Porthury 271 PAQE Toler V. Slater 41, 74 Tolson V. Sheard 19 Tooker v. Smith 86 Torriano v. Young .... 104, 119 Tottel V. Howel 49 Towne v. Camphell 9 v. D'Heinrich 151 V. London, &e. Steam- ship Co 292 Traders' North Staffordshire Co., In re 171 Travers v. BlundeU 58 Treloar v. Bigge 70, 255 Trent v. Hunt. . . . 142, 159, 177 Treport's case 15 Trestrail v. Mason 261 Tress v. Savage 6,7 Trevillian v. Pine 175 Trevivan v. Lawrence .... 12 Tudgay v. Sampson 116 Tuli f. Moxhay 251 Tupling 1!. "Ward 308 Turner v. Allday 137 • V. Barnes 161 V. Cameron 217 . ■ 11. &. W. K. Co 356 V. Hutchinson 35 . V. Meymott 242, 267 Tutton «. Darke 160 Twyoross J). Grant 313 Twynam v. Pickard 250 Tyson );. Smith 115 U. TJngley v. TJngley 88 Upton V. Townend 146 Uthwatt V. EUdns '. 33 TJtty Dale's case IS V. Vale of Neath Co. v. Eur- ness 78, 81, 82 VaUiant v. Dodemede 247 Valpy V. Manley 145 Van V. Corpe 85 Vane v. Barnard 121 Digitized by Microsoft® INDEX OF CASES. XXXI PAGE Varley v. Coppard 255 Vasper v. Eddowes 177 Vaughan, Hx parte 376 Vaus's case 67 Venning v. Bray 141 Vertue v. Beasley 186 Vincent v. Godson 7 Vowles V. Miller 117 W. "WaddUove v. Bamett 142 Wade V. Baker 38 Wadhamji.Postmaster-G-en. 123 Wadsworth v. Spain 328 Wateman v. Lindsey 176 Walker v. Goode 209 ■ V. Hatton 107 ■ V. Richardson 49 Wall V. Lyon 320 Wallen v. Forrest 309 Walls D. Atcheson 19S Wabrond v. Hawkins 204 Walsall «. Heath 43 Walter v. Rumbal 179, 182 Walters v. Northern Coal Co. 88, 257 Walton 1). Universal Salvage Co 292 Wansborough v. Matou 216 Ward V. Clarke 287 ■ ■ V. Day 204, 206 • 1). Evans 140 ■ V. Lninley 196 :- V. Eaw 354 V. Shew 160 Ware, lure 146, 264 Warman v. Paithfull 65 Warner's case 33 Warner 1). McBryde 61,87 1). Willington 77, 79, 81 Warwicke v. Noakes 141 Washbom v. Black 178 Waterfall v. Penistone 217 Waters v. Handley 337 Waterton v. Baker 353 Watherell v. Howells 121 Watkins v. Gravesend 50 PAGE Watson V. Ambergate EaE. Co 366 V. Atkins 135 f. Home 135 V. Eodwell 306, 321 V. Ward 154 V. Waud 96 Watts V. Ainsworth 80 V. Kelson 60 Webb V. Austin 12 V. Eordred 376 ■ «.Plunuuer..ll6,228,229 f . EusseU 270 Webber v. Stanley 56 Weeton v. Woodcock 223 Weigallt). Waters 110, 113 Weir V. Bamett 306 WeUer v. Spiers 195 Wells V. Partridge 25 V. SufBeld 286 Welsh 1). Mercer 356 Welsh Steam Collieries v. Gaskell 311 Wesley v. Walker 78, 79 West V. Blakeway 73, 222 V. Dobb 201,250,254 ■ V. White 322 Western w. McDermott .... 251 Westwood «. Cowne 181 Wheeler v. Bransoombe .... 144 V. Heydon 30 V. Stevenson .... 146 Whetstone v. Dewis 284 Whistler v. Paslow 62 Whitcher v. Hall 74 White V. Bayley 8,9 ■ ■ V. Cuyler 36 V. Hunt 257 41. Wakley 108 Whiteacre v. Symonds 213 Whitehead «J. Bennett.. 218, 219 V. Chfford 198 V. Taylor 157 Whiteley v. Honeywell 289 Whitfield V. Brandwood .... 135 1). Langdale 68 ■ ■ V. Weedon 116 Whitley v. Roberts 159 Whitlock's case 69 Whitmore «. Humphries .. 116 Whittater v. Barker 230 Digitized by Microsoft® INDEX. OF CASES. PAGE Whitting-, Me 77 ■Wiittington, Ex parte 230 WMtty 1). Dillon -. . 120 Wiitworth v. Humphries . . 298 Wickenden v. Webster .... 126 Wictham v. Bath 46 V. Hawker 63 ■ ■ V. Lee 245, 246 Wigglesworth v. Dallison . . 228 "Wilbraham v. Livesey .... 85 Wilde V. Waters 222 WUder v. Speer 177 Willdiis v. Wood 115 Wilkinson v. Calvert 208 V. CoUey 276 V. Gaston 65 V. HaU 158, 244 V. Rogers 126 Wilks V. Back 72 WiUett V. Earle 141 Williams, Ex parte 162 V. Bartholome'w 8, 142 V. Bosanquet. .258, 272 V. Burrell .... 98, 101 V. Earle 250 V. Evans 90 V. Heales 262 ■ V. Holmesl38, 163, 165 4>. Jordan 77, 79 V. Lake 77 ■ V. Stiven loo V. Williams . . 114, 354 Williamson i). BissiU 358 ; V. Wilhamaon . . 256 Wihnot V. Rose 118 Willoughby v. Backhouse . . 189 WiUs V. Stradling 89 Wilson, In re 263 v. Abbott 9 ■ «>. CaledonianRy. Co. 291 ■ V. Einch-Hatton 100 ■ V. Hart 251, 268 ■ V. Nightingale .... 176 V. Smith 95 ■ V. West Hartlepool Ey. Co 89 ■ V. WUson 129 Wilton V. Dunn 145 Wiltshear v. Cottrell 216 Winn V. Bull 80 Winterbottom v. Ingham . . 152 PAGE Winterboume v. Morgan . . 182 Wiscot's case 41 Wiseman v. Booker 117 Witty v. Williams 138 WoUaston v. HakewiU .... 250 V. Stafford 186 Womersley i>. DaHy . . . . 114, 232 Wood «). Anglo-Italian Bank 313 V. Beard 67, 206 V. Clarke 163 'v, Nunn 176 V. Tate 27 Woodcock ». Gibson 33 Woods, iJe 263 ■ V. Durrani 178 Wooler 1). Knott. . 123, 200, 201, 203 WooM V. The City Steamboat Co 287 Woolley V. Clark 157, 260 ». North London Ey. Co 346 Worthiugton ii. Gimson .... 60 ■ V. Warrington 94 Wotton V. Hele 101 Wright, Ex parte 47 • ■ V. Dewes 167 ■!). Pitt 257 • V. Smith 244 ■ V. Stavert 77 V. Trezevant .... h1,a Wyatt V. Cole 248 Wykes v. Sparrow 2S8 Wyndham t>. Way .... 62,219 Wynne v. Newborough .... 35 Xenos V. Wickham 71 T. Yaw V. Leman 135 Tellowly V. Gower 17, 119 Torke v. Smith 355 Toung V. Brasaey 294 Zohrab v. Smith 337 Zouch V. Willingale 213 Digitized by Microsoft® INDEX OF STATUTES. 51 Hen. 3, stat. 4 52 Hen. 3, o. 4 . . . c. 15 . PAOE .... 169 .... 189 .... 172 32 Hen. 8, o. 28 13, 28 ss. 1, 2, 4 . . 28 s. 4 30 c. 34 248 c. 37, 8. 3 157 1 & 2Ph. feM. c. 12, s. 1.. 179 1 Eliz. c. 19, e. 5 28 13 Eliz. c. 10 29, 31 8. 3 29 UEUz. .;. 11, ss. 17, 18, 19.. 29 18EKz. u. 11, o. 2 29, 30 27 EUz. c. 4 259 12Car. 2, u. 24 38 15 Car. 2, u. 17 75 17 Car. 2, u. 7, B. 4 185 29 Car. 2, u. 3, 88. 1,2.. 42, 51 a. 3 ....195, 256 B. 4 77 0. 7, 8. 6 289 2WiU.&M.sess.],u.5 .. 169,177 s. 2 176, 181 o. 3 .. 169 B. 4 . . 180 o. 5 .. 191 1 Anne, stat. 1, c. 7, ss. 5, 6 . 26 2 & 3 Anne, c. 4 74 4 Anne, o. 16, ss. 9, 10. .138, 252 5 Anne, c. 18 6 Anne, c. 35 . . . . 7 Anne, c. 12, s. 3 0. 20 .... 8 Anne, c. 14 s. 1 .. 8. 6.. 8. 7.. E. &L. 75 75 168 .... 74 .... 160 149 .... 160 160, 205 4 Geo. 2, c. 8 Geo. 9 Geo. 11 Geo, 2, u. 2, c. . 2, 0, 5 Geo. i 13 Geo. 14 Geo. 38 Geo. 48 Geo. 56 Geo. 57 Geo. 3, c. 3, 0. 3, c. c. 3, 0. 3, c. 3, c. 0. PAGE 28, 3. 1 243 8. 2 272 s. 6 199 6 75 36 46 . 19, 8. 1 173 8. 2 173 a. 3 174 B. 4 174 a. 7 173 8. 8 ..169, 172, 177, 188 s. 9 .. 169, 177 8. 10.. 178, 180, 181 s. 12 296 8. 13 297 8. 14 151 8. 15 147 8. 16.. 376,377 8. 17.. 377, 378 s. 18 245 8. 19 188 s. 20 189 17,8.1 28 . 81, B. 15 25 , 78, 8. 83 109 8. 86 105 . 5, ss. 17, 18 . . 131 87, 8. 6 37 73 27 50, 88. 1—5 ..117 s. 11 .... 118 52 377 93 181 8. 1 183 8. 2 184 8. 6 184 C Digitized by Microsoft® SXXIV INDEX OF STATUTES. PAGE 59 Geo. 3, u. 12, BS. 12, 17 . . 33, 48 B. 24 376 1 Geo. 4, i;. 87 274 g 2 279 I & 2 Geo. 4, c. 52 ........ 27 9 Geo. 4, 0. 85 46 10 Geo. 4, c. 50, ss. 22— 33. . 26 II Geo. 4 & 1 WiU. 4, c. 65, s. 12.. 44, 45 ss. 16, 17 40 0. 70, s. 36.... 282 1 & 2 Will. 4, u. 32 64 3 & 4 WiU. 4, u. 27 29 s. 2 .... 268 ss. 24—27 34 s. 42. .149,161 c. 42, s. 3 ..149,245 ss. 37, 38.. 157 c. 74, ss. 15, 40, 41 13 4 & 5 WiU. 4, 0. 22, ss. 1,2.. 147 5 & 6 WiU. 4, 0. 76, ss. 94, 95, 96 33 6&7WiU. 4, c. 71,83.67,80, 81 131 7 WiU. 4 & 1 Vict. u. 73, s. 26 291 1 & 2 Vict. i:. 43 27 y^.U 370, 376 s. 1 . . 371, 372 s. 2 373 s. 3 ...... 373. s. 4 373 s. 5 373 s. 6 373 s. 7 374 u. 106, 3. 28 ... . 47 2 & 3 Vict. 0. 47 378 c. 71, s. 39 .... 194 3 & 4 Vict. c. 77, s. 19 t... 376 c. 84, 8. 13.. 377, 378 4 & 5 Vict. c. 38, s. 18 .... 376 5 & 6 Vict. c. 27 30, 32 o. 35, 38.73, 103.. 130 c. 97, s. 2 180 c. 108. 31, 32 ss. 1—9 . . 31 s. 18 .... 31 S3. 20—32 31 7 & 8 Vict. c. 96, s. 67 .... 150 c. 110 292 PAGE 8 & 9 Vict. 0. 16, s. 135.... 291 c. 18, s. 119.... 146 o. 20, s. 138 ... . 292 c. 106 86 B. 3 . . 42, 53, 196, 256 B. 9 199 c. 118, a. Ill .. 376 t. 124 52 9 & 10 Vict. c. 74, s. 27 . . . . 46 c. 95, s. 58 .... 327 s. 59 293, 331 8. 62 .... 337 s. 69 331 s. 73 .... 350 s. 80 337, 351 s. 85 349 s. 124.... 366 s. 125 366,373 s. 142 360,374 10 Vict. c. 16, s. 99 292 11 & 12 Vict. c. 43, s. 34 . . 378 12 & 13 Vict. c. 26, ss. 2, 7 17 c. 92 .... 179, 180 s. 5.... 179 s. 6 179 13 & 14 Vict. u. 17, B. 2 . . . . 17 u. 61, B. 14 . . 353, 354 14 & 15 Vict. c. 25, s. 1.. 10, 14, 18, 226 8. 2.... 167 s. 3.... 219 s. 4.... 131 O.104 31 8. 9.... 31 15 & 16 Vict. c. 76 301 s. 16 292 s. 41 193, 283 s. 153 294 8. 168 286 s. 169.... 285, 286, 294 B. 170 292, 304 s. 172 297 s. 173 299 s. 174 300 s. 175 287, 332 8. 177 304 s. 202 283 8. 204 301 Digitized by Microsoft® INDEX OF STATUTES. XXXV 15 & 16 Vict. c. 76, PAQE 19 & 20 Vict. C. 108, PAOE s. 205 . 301 s. 65 192 s. 209 . 296, 337 8. 66 .... 193 s. 210. 203, 271 s. 67 .... 193 S3. 213- -217 . . 273, 274 s. 68.. 193, 366 s. 213. ...273, 274, 277, a. 70 .... 193 279, 280, 281, 8. 71 .... 193 283, 288, 361 8.73 .... 41 8. 214 . 279 s. 75 150 s. 215 280, 281 s. 78 .... 351 s. 216 . 281 c. 120 ..15, 18, 20 s. 217 . 282 8. 17 ....13, 20 s. 218 . . . 273, 280, 282 8.35 .... 13 15 & 16 Viet. i;. 79, s. 13 . . 376 20 & 21 Vict. c. 74 31 16 & 17 Vict. u. 70 45 21 & 22 Vict. c. 44 32 ss. 129—134 42, c. 57 31, 32 43 8. 1.... 31 U. 137 33 8. 9.... 30 s. 6 34 0. 73, 8. 1.... 378 17 & 18 Vict. ^. 60, s. 1.... 179 22 & 23 Vict. c. 12, 8. 5..., 376 U. 113 261 c. 35, a. 1 ... . 256 U 116 31 a. 2.... 256 u. 125 344 8. 3.... 253 s. 26 .... 278 ss.4,5,6 130 s. 50.. 307, 311 8. 27 .. 262 sa. 50—54 344 0. 46 31 s. 51 .... 347 23 & 24 Vict 0. 26, 88. 2—11 130 a. 52 .... 307 c. 38, 8. 6 205 s. 53 .... 347 c. 59 32 B. 54 .... 347 c. 105 30 s. 79 .... 281 c. 124 31 18 & 19 Vict. c. 63, s. 16 .. 46 8. 8.... 31 c. 120, s. 105 134 c. 126, B. 1 . . 205 c. 124 33 88. 1—11 272 es. 15, 16 34 88.2—11 130 19 & 20 Vict, c 74 31 c. 136 34 c 108.... 192, 374 s. 13.. 376 s. 23 .... 327 24 & 25 Vict C.9 46 g. 25 .... 359 c. 40 27 8. 43 .... 355 • 0. 105 .... 31, 32 8.50 ....331, s. 2.... 32 358, 359, 363, c. 131 31 365, 370, 374 25 & 26 Vict c. 17 46 8. 51.. 359, 363 c. 37, 8. 2.... 26 8. 52.. 358, 363, c. 52 32 365, 370, 374 c. 89, s. 62 . . 292 s. 53 .... 365 8. 87 .. 171 =.55 .... 362 s. 158.. 171 =.56 .... 362 ■s. 163.. 170 =.63 .... 192 c. 102,88.77—96 134 =.64 .... 192 26 & 27 Vict c. 49 27 Digitized by Microsoft® XXX VI INDEX OF STATUTES. PAOE 26 & 27 Viet. 0. 106 46 27 Vict. c. 13 46 27 & 28 Vict. 0. 45, s. 1 .... 18 29 & 30 Vict. 0. 57 46 c. 90, s.lO.... 134 30 & 31 Vict. 0. 69 261 u. 106, s. 13 . . 48 K,. 142 . . 327, 329, 332, 340 s. 11.. 327, 357, 365, 367 s. 12.. 329, 330, 333, 359, 367 s. 13.. 352, 366 u. 143 31 31 & 32 Viet. c. 44, o. 1 . . . . 47 0. Ill 31 c. 114 31 32 & 33 Vict. c. 41, s. 1 .... 131 0. 46, s. 1 .... 151 c. 70, s. 89 . . 131 c. 71 .... 34, 262 s. 15 . . 35, 262 s. 17.. 35, 262 s. 18 . . . . 262 s. 22 .... 263 s. 23.. 47, 263, 264, 265 s. 24 264 s. 25.. 35, 263 s. 31 .... 47 s. 34 .... 161 o. 35 .... 161 ». 49 47 s. 125 . . 262 s. 126 . . 262 c. 85 31 33 Vict. c. 14, s. 2 ..v.. 43, 45 33 & 34 Vict. o. 23 45 s. 7 .... 43 s. 8 43 s. 9 .... 43 ». 12 .... 43 s. 30 43 c. 35 .... 139, 147 ss. 2,3,7.-147, 148 8. 4 .... 148 o. 93 .. 41, 42, 44 PAOK 33 & 34 Vict. 0. 97, B. 8 .... 93 B. 15.... 92 B. 16 .... 93 s. 17.... 92 s. 38 . . . . 181 s. 97 . . . . 95 B. 98 . . 93, 94 c. 98 193 34 & 35 Vict. c. 79 167 s. 1 .... 168 s. 2 .... 168 35 & 36 Vict. 0. 50, s. 3 ... . 169 c. 92, s. 13 .. 181 36 & 37 Vict. c. 66 . . . . 247, 274 s. 24.... 130, 247, 299 s. 25.... 281, 299 s. 26 . . . . 282 s. 34 . . . . 40, 44, 45 s. 45 352, 353 s. 60 295 37 & 38 Vict. c. 33, sa. 2, 3 . . 14, 19 c. 54 134 s. 8 .... 134 c. 57 149 s. 1 .... 268 u. 62, o. 2 40 K,.^S 75 s. 2 91 38 & 39 Vict. c. 50, s. 2 .... 349 s. 3 .... 337 s. 6 356 c. 55, s. 13 .. 131 c. 72 31 c. 77 274 s. 20 . . 324 s. 21 . . 274 u. 87, ss. 11, 127.76 u. 92 .... 207, 233 s. 2 .... 233 B. 5 233, 235, 236 s. 6.235, 236 s. 7 . . . . 235 s. 8 236 a. 9 236 s. 10 . , 235 B. 11 .. 235 Digitized by Microsoft® INDEX OF STATUTES. XXXVll PAGE PAQE 38 & 39 Vict. c. 92, s. 12 . 236 38 & 39 Vict. c. 92, s. 53 .. 220 s. U . 237 s. 54 .. 234 s. 15 . 237 s. 55 .. 234 s. 16 . 238 H. 56 . . 234 s. 17 . 238 B. 57 .. 234 s. 18 . 237 =. 58 .. 233 s. 19 . 118, '• B. 59 ..234, 125 ,238 237 8. 20 . 239 s. 60 .. 234 s. 21 . s. 22 . 239 240 39 Vict. c. 16 39 & 40 Vict. s. 11 . . 95 0. 74 . . 233 s. 23 . 240 40 & 41 Vict. u. 18.. 16, 18 ,41,43 s. 24 . 240 ss. 3, 49 . . .. 13 s. 25 . 240 s. 4 . . 19 s. 26 . 240 s. 9 .. 25 s. 27 . s. 29 . 240 240 s. 10 .. 19 s. 13 .... .. 19 s. 30 . 240 s. 14 .... .. 19 s. 31 . . 240 s. 26 .... . . 14 s. 32 . . 240 s. 27 .... . . 14 s. 33 . . 240 s. 28 .... 14, 20 s. 34 . . 240 s. 39 .... .. 19 s. 35 . . 240 s. 46.. 14, 16, 25 H. 36 . . 241 ss. 46—48 .. 41 =. 37 . . 241 s. 49 40, 43 s. 40 . . 241 s. 56 .... . . 16 s. 51 . . 208 s. 57 .... .. 16 s. 52 . .146, 210 0. 34 . . 261 E. & L, Digitized by Microsoft® Digitized by Microsoft® A CONCISE VIEW Jafij 0f HanWorir mh ^mmt CHAPTEE I. INTKODUCTORY. AccoEDiNG to the theory of English law no suh- Tenures ject can acquire the absolute ownership of land. ^'^""'^^ ^' Every interest in real estate is held by some tenure. The person possessed of the highest estate known to the law, that of a fee simple, is a " tenant " in fee simple, and " holds " to him and his heirs for ever, the sovereign being the supreme lord. Who- ever, therefore, possesses any interest in real estate is, in the eye of the law, a tenant; the lands or other possessions he holds are tenements, and the manner in which they are held the tenure. In The tenancy deaKng with the subject of landlord and tenant, Lidde? however, we propose only to treat of the incidents ^''''■ of that branch of it which is included in the rela- tionship popularly known as a tenancy — in fact, the hiring of land, houses and other tenements. The relationship, therefore, which we mean is, that which arises where one person (the landlord) en- titled to real estate for any interest or period of duration permits another person (the tenant) for a E.&L. B ^ Digitized by Microsoft® LAW OF LANDLORD AND TENANT. Varieties of tenancies. At suffer- ance. less period to use and enjoy suoli real estate upon certain conditions, express or implied, and gene- rally including a recompense in the shape of rent or other consideration. A tenant, in the limited sense in which we shall use that word, holds either as (1) tenant at suffer- ance, (2) tenant at will, (3) tenant from year to year, or (4) as lessee for a term of years. A tenancy at sufferance has been defined as the lowest estate which can subsist. It arises where a person has held by a lawful title and continues the possession after his title has determined without either the agreement or disagreement of the person then entitled to the property. ("Watk. Conv. 23, n.) Thus, if a tenant for years or his assignee holds over after the expiration of the term {Butler v. Buchmanton, Cro. Jac. 169 ; Doe v. Beaufort, 6 Ex. 498, 503), or a tenant from year to year holds over after the determination of the tenancy by notice to quit, or by the death of the lessor who was only tenant for life {Doe v. Roberts, 16 M. & "W. 780), or a tenant at wlU. holds over after the determination of that estate {Doe v. Turner, 7 M. & W. 226; 9 M. & W. 643), in every such case the person so holding over is a tenant at suffer- ance; so is an undertenant who, being in posses- sion at the determination of the original Ifease, is permitted by the reversioner to hold over. {Simp- kin v. Ashiirst, 4 Tyrw. 781.) A tenancy at suf- ferance arises by implication of law, and cannot be created by contract between the parties. (Watk. Conv. 24.) It is an estate which cannot be assigned or conveyed, and is in fact a mere inven- tion of the law to prevent the continuance of possession acting as a trespass. (Smith, L. & T. 31, 2nd ed.) The tenant may be ejected at any time without demand of possession. If the land- lord assents to his possession, he becomes tenant Digitized by Microsoft® INTRODUCTORY. at will ; if he receives rent, tenant from year to year. {Boe v. Morse, 1 B. & Ad. 365.) A tenancy at will is an estate determinable at At -wiu. any time at the will either of the landlord or tenant (Co. Litt. 55 a) ; but to create such a tenancy there must be a distinct reservation of a right so to determine it. Thus, "I give you Broadacre to enjoy as long as I please, and to take again when I please," or "to hold hence- forth at the will and pleasure of B. at the yearly rent of 251. 4s. payable quarterly" (JDoe v. Cox, 17 L. J., Q. B. 3; 11 d. B. 122) ; or if the agree- ment be to let premises so long as both parties like, reserving a compensation accruing de die in diem, and not referable to a year or any aliquot part of a year, in such cases the tenancy is a tenancy at will. {Richardson v. Langridge, 4 Taunt. 128.) This estate may either be created by express words, as in the cases above mentioned, or it may arise by implication — it arises in the latter mode whenever a person enters or remains in possession of premises with the consent of the landlord, but without having his tenancy secured by an operative lease, and before he pays or agrees to pay rent. Such is a person who holds rent free by permission of the owner, as in the case of a dissenting minister put into possession by trustees of a congregation (Boe v. Jones, 10 B. & 0. 718 ; Boe V. M'Eaeg, 10 B. & C. 721 ; Collier v. King, 11 C. B., N. S. 14), or one who enters under an agreement for a purchase or a lease, if he have paid no rent {per Parke, B., Hoicard v. Sliaiv, 8 M. & W. 118; Anderson v. Midland Rail. Co., 30 L. J., Q. B. 94; Goodtitle v. Herbert, 4 T. E. 680) ; although in the case of a purchase he may have paid interest. {Boe v. Chamherlaine, 5 M.. & "W. 14 ; Howard v. Shaw, supra.) A payment of rent, however, would generally make him Digitizea by Microsoft® 4 LAW OF LANDLORD AND TENANT. tenant from year to year. {Mann v. Lovcjoy, Ey. & M. 355 ; and see notes to Clayton v. Blakey, 2 Sm. L. C. 104, 7th ed. ; and Richardson \. Langridge, Tu. L. 0. E. P. 11.) Entry under a void lease, until payment of rent, constitutes a person a tenant at -will. {Boe t. Bell, 5 T. E. 471 ; 2 Sm. L. C. 98, 7th ed. ; and see infra, "Tenancy from year to year.") A tenancy at -will may be determined by either party, at any time, and without any notice, as by a mere de- mand of possession by the landlord, or_ by the tenant quitting. So it may be determined by either of them doing any act inconsistent with the continuance of the tenancy. (Co. Litt. 55 b ; Boe V. Turner, 9 M. & W. 646.) Tenancy A tenancy from year to year is a term certain ^ioTe^^'' for twelve months from the date of its commence- ment. {Legg v. Strtidwick, 2 Salk. 414 ; Sow v. Kennett, 3 A. & E. 662.) Its distinctive feature is that it can only (in the absence of express stipulation) be determined by a six months' notice to quit, which must expire on the anniversary of the commencement of the tenancy. At the end of each year, if not determined by proper notice, another twelvemonth is added to the term. So that if at or before the end of six months no proper notice is given, it continues for two years ; if at the end of eighteen months no notice, then for three years, and so on. Instead of six months' notice a shorter notice may be stiptdated for, but it must always expire at the end of some year from the commencement. If the tenancy were determinable by notice at some time other than the anniversary of its commencement, it would not be a yearly holding. (Kemp v. Berrett, 3 Camp. 510.) How it A tenancy from year to year may arise either by an express agreement, or lease from year to Digitized by Microsoft® arises. INTEODUCTOEY. 5 year, by a general letting or by implication of law. Wbere the parties expressly agree upon a te- By express {• .• -\ I rr p 1 «4 contract. nancy trom a given date "from year to year, such, a tenancy is created and may be determined by notice at the end of the first or any subsequent year {Doe v. JSlainhy, 10 Q. B. 473) ; but if " for one year certain, and so on from year to year," a tenancy not determinable until the end of the second year is created. {Doe v. Green, 9 A. & E. 6-58; Reg. v. Chaidon, 1 Q. B. 247; Benn v. Cart- right, 4 East, 31.) A demise for " one year," or for "one year certain" merely, is not a tenancy from year to year, but determines at the end of the first year without any notice to quit. {Cobb V. Stokes, 8 East, 368 ; Johmtone v. Hudlestone, 4 B. & C. 937.) Whenever a landlord lets property and a tenant By a general takes it without stipulation as to the duration of ^^^'^s- the tenancy, it is a lettiag at will ; but if the land- lord accepts yearly rent, or rent measured by any aliquot part of a year, a letting from year to year arises, such beiag the construction which the law puts upon the fact of the relation of landlord and tenant, unless there be some agreement between the parties to the contrary. {Per Parke, B., Boe V. Wood, 14 M. & W. 682, 687; Richardson v. Langridge, 4 Taunt. 128 ; Hunt v. Allgood, 10 C. B., N. S. 2-53.) This must be taken as limited to those lettings not by deed ; for a grant or lease by deed, without limitation as to time, confers on the lessee an estate for his own life, where the lessor is competent to grant such an interest. (Co. Litt. 42 a ; Boe v. Browne, 8 East, 166 ; but see Boe v. Gardener, 21 L. J., C. P. 222.) More- over, a general letting for a purpose, extending beyond one year, as the raising of crops not matured in that time, would be enlarged accord- Digitized by Microsoft® LAW OF LANDLOKD AND TENANT. By implica- tion 01 law. In case of tenant hold- ing over, or entering under an in- operative contract for letting, ing to the purpose of the letting. {Roe v. Lees, 2 W. Bla. 1171.) _ , _ _ A tenancy from year to year arises by implica- tion of law, where, without any agreement for letting, or with an instrument of letting inoperative to pass any interest in the property, there has been occupation and payment of rent. Payment of rent will convert a tenant at sufferance holding over after the expiration of his lease into one from year to year, the terms of his holding in the absence of stipulation to the contrary being the same as those in his original lease, so far as they are applicable. {Kelly v. Patterson, 43 L. J., C. P. 320; Thomas v. Packer, 26 L. J., Ex. 207; 1 H. & N. 669; Hyatt v. Griffiths, 17 Q. B. 505; Digby V. Atkinson, 4 Camp. 275 ; James v. Dean, 11 Ves. 395 ; Bishoj} v. Howard, 2 B. & C. 100.) If the parties have expressly agreed for a tenancy at will, payments of rent in whatever manner will not change it to one from year to year. {Doe v. Cox, 11 a. B. 122 ; 17 L. J., d. B. 3 ; Doe v. Davies, 21 L. J., Ex. 60 ; 7 Ex. 89.) But where the tenancy at will arises by implication of law, and not by contract, payment of rent will convert it into one from year to year. Thus, where a person is let into possession under a mere agree- ment for a lease or a void lease, e.g., a lease for more than three years not under seal, and pays or agrees to pay any part of the annual rent, he thereby becomes tenant from year to year upon aU the terms of the instrument which are not in- consistent with such a tenancy. {Martin v. 8m.ith, L. E., 9 Ex. 50 ; 43 L. J., Ex. 42 ; Doe v. Bell, 2 Sm. L. C. 98, 6th ed. ; Lee v. Smith, 23 L. J., Ex. 198 ; Tress v. Savage, 4 E. & B. 36 ; 23 L. J., Q. B. 339 ; Bennett v. Ireland, 28 L. J., Q. B. 48 ; Beak V. Sanders, 3 Bing. N. C. 850 ; Richardson v. aifford, 1 A. & E. 62 ; Berrcy v. Lindley, 3 M. & Digitized by Microsoft® INTRODUCTORY. 7 Gr. 498 ; Knight v. Benett, 3 Bing. 361 ; Chapman V. Toivner, 6 M. & W. 100 ; Boe v. Amey, 12 A. & E. 476 ; Hamerton v. Stead, 3 B. & C. 478 ; Braythivayte v. Hitchcock, 10 M. & W. 494.) And should the relationship of landlord and tenant be permitted to continue during the term contemplated by the inoperative instrument, it will then cease without notice to quit, as if the term had in fact been created. {Doe t. 8tratton, 4 Bing. 446; Tress v. Sewage, supra.) A person who enters under an agreement for or entry a purchase which goes off, if he pays rent will Si^° wUch generally become tenant from year to year. {Saun- ^°^^ °^' ders V. Musgrave, 6 B. & 0. 524 ; Clayton y. Blakey, 2 Sm. L. C. 103, 7th ed.) Payment of rent in these cases raises the im- impUcation plication, but actual payment of rent is not neces- or SSsSm sary ; it is sufficient if the tenant either agrees to o*'^™'; pay it, or admits that it is due. {Cox v. Bent, 5 Bing. 185 ; and see Vincent y. Godson, 24 L. J., Ch. 121.) The presumption arising from the acceptance in case of of rent is the same in the case of a corporation tfo^"'^" as in that of a private individual, so that a parol lease by a corporation after payment of rent creates a tenancy from year to year. [The Ecclesiastical Commissioners v. Mcrral, L. E.., 4 Ex. 162; 38 L. J., Ex. 93 ; Doe v. Taniere, 12 Q. B. 998 ; 18 L. J., Q. B. 49.) But where there has been no rent paid, and no Mere occu- circumstances from which a tenancy can be im- Sot'meate! plied, mere occupation will not make the occupier a tenant from year to year. [Boe v. Piillen, 2 Bing. N. C. 749.) Thus, where there was a negotiation for a letting, and the agreement was drawn and approved of by the tenant, but he was to find a surety, and he neither found the surety nor exe- cuted the agreement, it was held that there was no Digitized by Microsoft® LAW or LANDLORD AND TENANT. implied tenancy. [Boe v. Cartwright, 3 B. & Al. 326.) And so in the case of one who entered without leave, and afterwards there was a treaty for lease, upon the terms of which the parties dis- agreed. {Doe V. Quigletj, 2 Camp. 505 ; and see Dawes v. Doicling, 22 W. E. 770.) impHcation Payment of rent will not always create a tenancy mentof rent from year to year, for it is competent for either not conciu- reoeiver or payer of rent to prove the circumstances under which the payments were made, and by such circumstances to repel ■fehe legal implication which would result from the receipt of rent unexplained. {Doe V. Crago, 6 C. B. 90 ; Oakleij v. Monck, L. E., 1 Ex. 159; Cousins v. Phillips, 35 L. J., Ex. 84.) And the law will not raise the relationship of land- lord and tenant if, looking to all the circumstances of the case, it appear that it was not the intention of the parties to create that relationship, notwith- standing the payment is described as rent ( Camden V. Batterbimj, 7 0. B., N. S. 864 ; 28 L. J., 0. P. 335 ; Williams v. Bartlwlom.no, 1 B. & P. 326) ; and recently the receipt of rent of an inadequate amoTmt pirrporting to be paid under an invalid lease was held not to constitute a tenancy from year to year. {Smith v. Widlake, 47 L. J., C. P. 282 ; 26 W. E. 52.) There are occupations which, from the relative position of the parties, do not create a tenancy. A servant or agent who occupies a house belong- ing to his master or principal for the more conve- nient performance of his duties, whether or not with less wages on that account, is not a tenant, and acquires no estate in the house though he use it to carry on his own business. {Doe v. Dern/, 9 0. & P. 494 ; White v. Daylei/, 10 0. B., N. S. 227; 30 L. J., 0. P. 253; Bertie v. Beairmont, 16 East, 33 ; Mai/hcir v. Suttle, 23 L. J., Q. B. 372 ; 24 ib. 54; Fox v. Dalh;/, L. E., 10 C. P. 285.) Occupation of servant not a te- nancy. Digitized by Microsoft® INTKODUCTORY. J Such an occupation is on the footing of that of a servant occupying a room in his master's house ; the occupation is that of the master hy his servant. The right to occupy is divested immediately the service is determined, no notice to quit or proceed- ings in ejectment being necessary to evict the servant. {Eex v. Cheshunt, 1 B. & Aid. 473 ; Bex V. Kektern, 5 M. & S. 136.) And as he takes no estate he cannot maintain an action for trespass against the master for entering and evicting him. ( WJiite V. Bayley, supra.) If an annual rent is reserved, the holding is Tenancies from year to year, although the contract for de- a°year. mise provides that the tenant shall quit at a quarter's notice, provided that notice is to expire at the same time of the year as the tenancy com- menced. If it is agreed that it may be deter- mined at any time, on six or three months' notice, that creates a half-yearly or quarterly tenancy, as the case may be {Boe v. Grafton, 21 L. J., Q. B. 276 ; Kemp v. Berrett, 3 Camp. 510) ; if on one month's notice, then a monthly tenancy. {Boe v. Goiver, 17 Q. B. 589.) In the letting of lodgings or houses, an agreement to pay rent monthly or weekly affords a presumption of a monthly or weekly tenancy. {Suffell v. Armitstead, 7 C. & P. 56 ; and see Toicne v. Campbell, 3 0. B. 921 ; Wilson V. Ahhott, 3 B. & 0. 88.) A demise for years is a contract for the exclusive Le«se for possession and profits of lands and tenements for ^^'^' some determinate period, whereby the lessor lets them to the lessee for a certain term of years agreed upon between the parties, and thereupon the lessee enters. Such an estate is denominated a term, which word signifies not only the limitation of time, but the estate and interest that pass for such time. -(Co. Litt. 45 b.) Digitized by Microsoft® ( 10 ) CHAPTER II. CAPACITY OF THE CONTRACTING PAKTIES. Sect. 1. — W7w may he Lessors. GeneraUj-. EvERY person not Under any legal disaMlity may grant a lease of his lands, houses and other tene- ments for any period not exceeding in duration his own estate in the property leased ; but, except in certain cases hereafter noticed, a lease for a longer term will determine upon the cessation of the origiaal interest, in accordance with the general rule that no man can carve out of his own estate an interest which is to extend beyond it. If, therefore, a tenant for life, independently of any statutory or other power so to do, execute a lease for niaety-nine years or create a tenancy from year to year, such lease or tenancy, though valid during his life, will expire at his death (Bragg v. Wiseman, Brownlow & Gr. 22 ; Doe v. Roberts, 16 M. & W. 778); or, if land, at the expiration of the then current year of the tenancy. (14 & 15 Vict. 0. 25, s. 1.) There are, however, cases where tenants in tail or for life or trustees are expressly empowered in settlements and wills to grant leases exceeding in duration the extent of their own interests; where persons ordinarily unable to contract are enabled to grant leases for limited terms, subject to certain conditions and restrictions, and even where persons, possessing no estate at all, are nevertheless able Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 11 to make leases ty deed, wMcli although inope- rative as against the real owner, wlII, in accordance with the rule that no man is permitted to allege or prove anything in contradiction of his own deed {Lijon v. Reed, 13 M. & W. 285), create a Leases by tenancy by estoppel as between the lessor and '^'°™^^- lessee; that is to say, the lessor will not (unless he be a trustee for the public, deriving his autho- rity from an act of parliament {Fairtitle v. Gilbert, 2 T. E. 169; but see Boe v. Home, 3 d. B. 757) be allowed during the continuance of the lease to aver that he had no interest in the property {Dar- lington V. Pritchard, 4 M. & Gr. 783; Green v. James, 6 M. & "W. 656) ; nor can the lessee, if he have executed, or entered into possession under, the lease, so long as he retains possession, dispute the lessor's title {Phipps v. Sculthorpe, 1 B. & Al. 60; Cidhbertson v. Irving, 28 L. J., Ex. 306; 29 L. J., Ex. 485; Levi/ v. Lewis, 28 L. J., C. P. 304; 30 L. J., C. P. 141), even where the lease is not under seal {Agar v. Young, Oar. & M. 78; Doe v. Foster, 3 0. B. 229), except to show that such title has been determined by effluxion of time or by act of law. {England v. Slade, 4 T. E,. 682; Doe v. Ramsbotham, 3 M. & S. 516; Mountneij v. Collier, 22 L. J., U. B. 124.) Eecent decisions seem to establish that even where it appears on the face of the deed that the lessor has no estate in the premises, an estoppel arises. {Morton v. Woods, L. E., 3 Q. B. 658; L. E., 4 Q. B. 293 ; 37 L. J., Q. B. 242, 249; 38 L. J., Q. B. 81, 85.) But a tenant who has attorned to a person from whom he did not receive possession is not estopped from showing want of title in such person. {Cornish v. 8earell, 8 B. & 0. 475.) Should the lessor of lands in which he has no estate afterwards acquire an estate, the lease which before operated by estoppel only, becomes a lease Digitized by Microsoft® 12 LAW OF LANDLORD AND TENANT. Tenants in fee. Tenants in tail. in interest (Bac. Ab. (0.) 189; Co. Litt. 47 b; Smith V. Low, 1 Atk. 489; Webh v. Austin, 7 M. & Gr. 701; Sturgeon v. Wingfield, 15 L. J., Ex. 212; Doe V. 0«(7%, 20 L. J., 0. P. 26), so as to bind the heirs or assigns of the lessor ; for an estoppel is not confined to the parties to the lease, but is annexed to the estate, and binding aHke on aU persons- claiming under them. ( Trevivan v. Law- rence, 2 Salii. 276; Goodtitk v. Morse, 3 T. E. 371; Doe V. Thompson, 9 Q. B. 1043; Baricick t. Thomp- son, 7 T. E. 488; L. 8( N. W. Rail. Co. v. West, 36 L. J., C. P. 245.) An estoppel must be reci- procal and binding on both parties (Co. Litt. 352 a) : hence, leases by infants and married women are exempt from the operation of the doctrine for want of mutuality {James v. London, Cro. Eliz. 37) ; nor is the crown bound by estoppel. More- over, if any estate or interest passes from the lessor, there can be no estoppel. [Cuthhertson v. Irving, 28 L. J., Ex. 306; 29 L. J., Ex.. 485.) A tenant in fee simple possesses the most ex- tensive estate in land recognized by the law of England. He may grant a lease for any number of lives or term of years without limitation or re- straint. (Com. Dig. "Estates" (G. 2); Bac. Ab. " Leases," c. 1, s. 1.) A lease of lands, of part of which the lessor was tenant in fee and of part tenant for Hfe, was held good after his death for those lands only of which he was seised in fee. {Doe V. Meijicr, 2 M. & S. 276.) A tenant in tail could not formerly make any lease to endure longer than his own life, for, at his decease, any outstanding lease made by him was absolutely void as against remaindermen and re- versioners, and voidable at the election of the issue in tail. (Com. Dig. " Estates " (&. 2) ; Bac. Ab. " Leases " (D. 1) ; Co. Litt. 45 b.) The letting value of the property being thus obnously im- Digitized by Microsoft® recoveries. CAPACITY OF THE CONTRACTING PARTIES. 13 paired, an act of Parliament, passed in the reign Theenabiing of Henry VIII., empowered tenants in tail to 32 Hen! s, grant leases under certain restrictions for any term "■ ^^■ not exceeding twenty-one years or three lives from the date thereof. But leases under this statute were not binding on the reversioner or remainder- man (2 Bl. Com. 319), and it was repealed, except as " to leases made by persons having an estate in right of their churches," in 1856. (19 & 20 Yict. c. 120, s. 85.) Tenants in tail are now empowered The act for J T p n ^ ^ j-'inc i i • f the abolition to dispose 01 the lands entailed for an estate m tee of toes and simple absolute or for any less estate (which words " """ include a lease for any number of years or for a life or lives) by a deed enrolled, and even without enrolment they may make leases by deed equally binding as against the issue in taU, remaindermen or reversioners, for any period not exceeding twenty-one years from the date or from any time not exceeding twelve calendar months from the date thereof, reserving a rack rent, or not less than five-sixth parts of a rack rent. (3 & 4 Wm. 4, c. 74, ss. 15, 40, 41.) If the tenant in tail making the lease be a feme covert, the concurrence of her husband is necessary, and the deed must be acknowledged by her in manner directed by the act (s. 40). If a tenant in tail be iacompetent, by seWea reason of infancy, lunacy or other cause, to make 1877. leases under this act, the lands entailed, or any part thereof, may be demised on application to, and by special direction of, the Chancery Division of the High Court of Justice. (40 & 41 Yict. c. 18, ss. 3, 49.) Under the 19 & 20 Vict. c. 120, s. 17, every application to the court required the concurrence or consent of all parties beneficially entitled, which requirement proved frequently prejudicial to the estate (see Ee Mcrrij, 15 W. E. 307 ; but see also Be Hutchinson, 14 W. E. 473) ; Digitized by Microsoft® 14 LAW OF LANDLORD AND TENANT. but now by the Settled Estates Act, 1877 (40 & 41 Vict. c. 18, s. 26, re-enacting 37 & 38 Yict. c. 33, s. 2), persons whose concurrence or consent shall not have been obtained may be required, by notice served as therein specified, to notify their assent or dissent. In the case of persons of un- sound mind not so found, service of this notice should be effected personally on them as well as on the persons having charge of them. {He Crab- tree's Settled Estates, L. E., 10 Ch. 201; 44 L. J., Ch. 261.) Infants may be served by delivering a copy of the notice to their father. [Re Bendy, L. E., 4 Ch. D. 881; 46 L. J., Ch. 417; 25 W. E. 410. As to service in. other cases, see also Re Slack's Settled Estates, W. N. 1875, p. 224 ; Re Chamberlain, 23 W. E. 852; Re Rylar, 24 W. E. 949.) In default of such notification, the person objecting to the lease shall be deemed to have submitted his right and interest to be dealt with by the court (40 & 41 Vict. c. 18, s. 26) ; and the court may dispense with consent, having regard to the number and iaterests {i.e. "number and value," per Jessel, M. E., Taylor v. Taylor, 25 W. E. 280; L. E., 3 Ch. D. 145 ; 45 L. J., Ch. 848) of the parties (sect. 28), and also with the notice, if there be circumstances rendering it inconvenient or un- necessary. (Sect. 27.) Tenants in tail may also, without any application to the court, make leases for any term not exceeding twenty-one years, pursuant to 40 & 41 Vict. e. 18, s. 46, ia the same manner as tenants for life ; but a lease made by a tenant in tail not in pursuance of these statutes, or of a power to lease, though not absolutely deter- mined by his death, may then be affirmed or avoided at the pleasure of the issue in tail. (Bac. Ab. "Leases," D. 18.) Bringing an action of waste, or for rent or acceptance of rent, by the Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 15 issue in tail, have been considered acts of confir- mation. {Boe v. Jenkins, 5 Bing. 469 ; Bao. Ab. " Leases," D. 19.) Unless specially empowered by statute or by Tenants for the deed under which he holds, a tenant for life ^^' cannot make any disposition of the lands to take efEect after his decease, and any lease for years that he may make will be absolutely void at his death (Bac. Ab. "Leases" (I.) ; Adams v. Gibney, 6 Bing. 656), or at the end of the then current year of the tenancy (14 & 15 Yict. c. 25, s. 1), and cannot be confirmed by the reversioner {Doe v. Butcher, 1 Doug. 50) ; although such acts as ac- ceptance of rent will be evidence of a new tenancy from year to year upon such of the terms of the void lease as are applicable to that tenancy [Boe V. Morse, 1 B. & Ad. 365 ; see Cornish v. Siubbs, L. E., 5 0. P. 334; 39 L. J., C. P. 202, 205), so as to entitle the tenant to notice to quit. {Boe v. Watts, 7 T. E. 83.) And where the succeeding owner knowingly permits the tenant to expend money in improvements the courts will not allow him subsequently to controvert the lease. {Jack- son V. Cator, 5 Ves. 688; Bann v. Spurrier, 7 Ves. 231.) Prior to the passing of the Leases and Sales of Settled Estates Act, 1856, persons entitled to the possession of settled estates were obliged to go to Parliament for a private act before they could make the most advantageous leases. (See juer Grifiard, L. J., Beiolei/ v. Carter, 4 L. E., Oh. 230, 240.) A tenant for life could, of course, join with the remainderman or reversioner in making a lease which, during his life, operated both as his lease and the confirmation of the remainderman or re- versioner, and after his death as the lease of the succeeding owner. (Co. Litt. 45 a ; Treport's case, 6 Co. 14.) The Act of 1856, itself a manifest Digitized by Microsoft® 16 I-AW OF LANDLORD AND TENANT. improvement in the law, was amended by Acts passed in 1858, 1864, 1874 and 1876, and now the whole of these acts have been repealed and their provisions and useful amendments benefi- cially consolidated in "The Settled Estates Act, 1877" (40 & 41 Vict. c. 18). By that act it is provided that as to settlements made after 1st November, 1856 (sect. 57), not containing an express declaration to the contrary, a tenant for life entitled to the rents and profits of any "settled" estates (Re Chamberlain, 23 W. E. 852) may demise by deed the premises or any part thereof (except the principal mansion-house and demesnes thereof, and other lands usually occupied therewith) without application to the Court of Chancery, for any term not exceeding twenty-one years, so far as relates to estates in England, and thirty-five years so far as relates to estates ia Ireland, to take eilect in possession, at the best rent reasonably obtainable, subject to certain re- strictions and conditions contained in the act. (Sect. 46; see Taylor v. Taylor, L. E., 20 Eq. 297; 23 W. E. 947.) But leases of copyhold purposed to be made pursuant to this act must have the licence or consent of the lord. (Sect. 56.) Even now, however, a tenant for life must apply to the Chancery Division of the High Court of Justice in the numerous instances in which he may desire, for the benefit of the estate, to grant a lease for a term exceeding twenty-one years (see post, "Leases by trustees of settled estates"), and it may even be necessary to obtain a private act of Parliament to extend the leasing power affecting a settled estate. [Sarile v. Bruce, 29 Leases Beav. 557.) It has, therefore, been usually found convenient in settling estates to insert in any settlement made by deed, wUl or otherwise, an express provision empowering tenants in tail or Digitized by Microsoft® under powers. CAPACITY OF THE CONTRACTING PARTIES. 17 for life or trustees to grant leases for terms of years subject to such limitations as maybe deemed advisable. Whatever conditions and restrictions are thus attached to the power must be strictly observed ; but the intention of the parties collected from the words of the instrument according to their ordinary and common acceptation, will govern the courts in its construction. {Een v. JBulkeley, 1 Doug. 292 ; Taylor v. Sorde, 1 Burr. 60, 120 ; 2 Sm. L. C. 584, 7th ed.; Pomery v. Partington, 3 T. E. 665 ; Griffith v. Harrison, 4 T. E. 737 ; Jegon v. Vivian, L. E., 2 C. P. 422 ; L. E., 3 H. L. Cas. 285.) As a general principle a person acting under a power may do kss than the povs^er authorizes, and if he do more it will be good to the extent of the power {Isherwood v. Oldknow, 3 M. & S. 382 ; Edwards v. Milbanl; 29 L. J., Ch. 45 ; Uaston v. Pratt, 33 L. J., Ex. 233 ; Sug. Pow. 746, pi. 26), and valid as between lessor and lessee by way of estoppel (Yelloioly v. Gower, 24 L. J., Ex. 289), but void against the remainderman or reversioner, unless the defective execution of the power be cured by the provisions of comparatively EeUef on recent acts, which have provided that, except in elecuton of cases of leases made by ecclesiastical corporations powers, (12 & 13 Vict. c. 26, s. 7), leases made bona fide J^al^^^'''' under powers, and under which the lessees have entered, but which are invalid by reason of some deviation from the terms of the power, are to be deemed in equity contracts for such leases as might have been properly granted (id. s. 2) ; and that if the person against whom such leases are invalid accept rent, and before or upon its acceptance sign any receipt, memorandum or note in writing con- firming the lease, they are to be deemed to be confirmed as against them. (13 & 14 Vict. c. 17, i3&i4Viot. s. 2 ; see Ex parte Cooper, 34 L. J., Ch. 378.) A person who has an estate piir autre vie, i. e,, Tenants pur /■ ■* ^ autre vie. Digitized by Microsoft® 18 LAW OF LANDLORD AND TENANT. for the life of another, is in the same position as an ordinary tenant for life, except that leases made by him mil determine, not at his own, but on the death of the cestui que vie, or person for ■whose life the land is holden {Blake v. Foster, 8 T. E. 487; Co. Litt. 47 b ; 6 Co. 15 a), or at the expiration of the then current year of the tenancy (14 & 15 Vict. c. 25, s. 1), so that he may make a lease to commence after his own death. ( Utty oteiantsm Bale's case, Cro. EKz. 182.) Tenants in tail, after possibility of possibility of issue extract, whose estate can only tlaot.'^^" ^6 created by the act of Grod, i. e., by the death of the wife of a tenant in special tail without issue, or having left issue, that issue becoming extiact ; and tenants by the curtesy and in dower, whose estates are created by act of the law, are aHke regarded in law as possessing estates for life only. They may grant leases under 40 & 41 "Vict. c. 18, in the same manner as tenants for life, and are similarly restricted in the disposal of their respec- tive lands. Trustees of Where no express power of leasing was given State! ^y the settlement, there was, prior to the 19 & 20 Vict. c. 120, no general rule as to what leases might be granted by trustees, who were autho- rized to do what was reasonable ia any particular case, the burthen of proving its reasonableness devolving on the trustee and the lessee claiming under him. {Att.-Gen. v. Owen, 10 Ves. 555, 560.) As owner of the legal estate a trustee could grant any lease justified, by the quantity of his estate ; but it was unsafe to rely on a lease by a trustee without the concurrence of the cestui que trust, if competent to join, or, if otherwise, the 40 & 41 Vict, sanction of the Court of Chancery. The Settled °'^^' Estates Act, 1877, embodying the provisions of the Act of 1856, now empowers the Chancery Division by order to vest powers of leasing in Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 19 trustees (s. 13), in conformity witli the provisions of the act (s. 10), which authorize leases for terms of years not exceeding, for an agricultural or occupation lease, twenty-one years so far as re- lates to estates in England, and thirty-five years so far as relates to estates in Ireland ; for a mining lease or lease of water, watermiQs, way- leaves, waterleaves or other rights or easements, forty years ; for a repairing lease sixty years ; and for a buildiag lease niaety-nine years ; or, if satisfied that it is the usual custom of the district and beneficial to the inheritance, any of the above (except agricultural leases) may be granted for such terms as the court shall direct (s. 4) ; but the court cannot authorize any lease which the settlor could not have authorized (40 & 41 Vict. c. 18, s. 39), nor any contract by trustees who have leasing powers to grant in one lease several pro- perties held upon distinct trusts. {Tolson v. Shear d, L. E.,' 5 Ch. D." 19 ; 25 W. E. 667.) Leases made under powers vested by order pursuant to the 13th section {supra) need not be settled by the court or made conformable with a model lease, unless the parties desire or there is some special reason. (40 & 41 Yict. c. 18, s. 14 ; i^fl Hoi/le, 12 W. E. 1125; Be Doming, 14 W. E. 125.) It is obviously dangerous for a trustee to grant, or any person to accept from a trustee, a lease neither warranted by an express power contaiued in the settlement or authorized by the court, although such lease will be valid if justified by the estate of the trustees, and good agaiust any cestui que trust who concurs thereia. A power of leasing given to trustees, " their executors, administrators and assigns," is not an- nexed to the estate (Sug. Pow. 131 — 133) ; so, where a testator devised real estate to trustees in fee, with a power to grant leases, and the trustees c2 Digitized by Microsoft® 20 LAW OF LANDLORD AND TENANT. disclaimed, it was held that the power could not be exercised by the heir, though he held the estate subject to the trusts of the will, such a power being committed by the testator to the trustees by reason of his personal confidence in their discretion. {Rohson v. Flight, 34 L. J., Ch. 226.) A lease from year to year or for a short term at a rack rent may be granted by trustees out of their legal estate mthout application to the Chancery Division, the expense of which would be obviously disproportioned to the transaction. In Naylor v. Armtt, 1 Euss. & M. 501 (see Lewin, 388) the court allowed such a lease to be granted for a term not exceeding ten years ; but in a case stated for the opinion of the court, the late Sir John Wickens, V.-C, declined to follow that case {In re Bhaw's Trusts, L. E., 12 Eq. 124) ; and in the case of a simple trust, where the cestui que trust is in possession, the trustee cannot make any lease without his concurrence. (Lewin, 388 ; see Malpas v. Acldand, 3 Euss. 272.) The court may dispense with consents (formerly re- quired by 19 & 20 Yict. c. 120, s. 17), having regard to the number and interests of the parties. (40 & 41 Vict. c. 18, s. 28 ; see Taylor v. Taylor, L. E., 1 Ch. D. 433 ; S. C, L. E., 3 Ch. D. 146 ; 25 W. E. 280 ; Re Thorp, W. N. 1876, p. 251.) Tenants for A tenant for years may, unless restrained by express agreement, make an underlease for any part of his term, and any assignment for less (though but a single day) than his own term is in effect an underlease (Sug. Cone. Tend. 482 ; Cottee V. Richardson, 7 Ex. Eep. 143 ; Bac. Ab. "Leases;" J?, v. Wilson, 5 Man. & E. 157, n. ; R. V. Aldhorough, 1 East, 597) ; but if it com- prise the whole term, though it purport to be an underlease, it is in effect an assignment, by virtue of which lais assignee will at once displace him Digitized by Microsoft® years, CAPACITY OF THE CONTRACTING PARTIES. 21 and tecome tenant to the original lessor. {Micks V. Domiing, 1 Ld. Eay. 99 ; Beardman v. Wilson, L. E., 4 0. P. 57.) In some cases, indeed, it has heen held that where the parties intend to create the relation of landlord and tenant a parol demise for all the residue of the assignor's interest may be construed to be a lease, so that the lessor, though he cannot distraia, not having any rever- sion, may maintain an action for the rent {Poult- ney v. Solnies, 1 Stra. 405 ; Baker v. GosiUng, 1 Bing. N. C. 19 ; Preece v. Corrie, 5 Bing. 24) ; but the authorities differ considerably on the point (1 Piatt on Leases, 19 ; Barrett v. Ralph, 14 M. & W. 348), and the better opinion would seem to be that where there is no reversion and no distress can be made for the rent the attempted disposition cannot operate as an underlease. A tenant from year to year, whose estate is in Tenants 0,1 n " J. • •j.i, ■ from year to tact a lease tor a year certain with a growmg year, interest during every succeeding year springing out of and parcel of the original contract {Legg v. Strudicick, 2 Salk. 414), may grant a lease for a term of years, which will subsist until defeated by the determination of his own estate {Mackay v. Mackreth, 4 Doug. 213 ; Oxley v. James, 13 M. & W. 209), or he may underlet from year to year ; for such a letting is in legal operation a demise from year to year during the continuance of the original demise, and in either case he will have a reversion sufficient to enable him to distrain for rent. {Pike v. Eyre, 9 B. & 0. 909 ; Curtis v. Wheeler, Moo. & M. 493.) In his case also the general rule applies. He may assign or underlet the premises for any period less than his* own term. In like manner a tenant for a less period Tenants for than for years, as, for one year certam or any yeais. agreed part of a year, is at liberty to create a sub-tenancy by sub-letting to another, unless re- Digitized by Microsoft® 22 LAW OF LANDLORD AND TENANT. Tenants at ■will. Tenants by sufferance. Joint tenants. stricted from doing so by tlie terms of his agree- ment. (Shep. Touch. 268 ; R. v. Aldhorough, 1 East, 597.) Indeed, all tenants, except tenants at -wlII and at sufEerance (ante, pp. 2, 3), may sub-let, and even these by demising may create a tenancy by estoppel as between themselves and their lessees in manner already noticed. (Cole, Ejec. 217 ; per Patteson, J., in Boe v. Carter, 9 Q. B. 865.) Although joint tenants holding, as it is said ia the technical Norman French, per mie et per tout, together possess but one freehold and constitute but one owner, each of them has an exclusive right and dominion over his own share. They may therefore joia or sever in leasing the whole estate or their respective shares to a stranger or to each other (Co. Litt. 186 a ; Com. Dig. "Leases" (I. 5); Coicper y. Fletcher, 34 L. J., Q,. B. 187) by leases which may be made to com- mence in prcBsenti oicin fiituro (Bro. Ab. "Grant," 154). But a lease by one of two joiat tenants of the whole will simply pass his own moiety (Co. Litt. 186 a; BelUngham y. Akop, Cro. Jac. 52), though it purports to be made by both {Cart- wright's case, cited 1 Vent. 136) ; and a lease by two of three joint tenants in like manner will pass their two undivided thirds of the property. {Phil- 2Mtt V. DoUinson, 3 Mo. & P. 320.) If a joint tenant die after making a lease for years of his share, it will biad the survivor, though made to commence after the lessor's death, and the lessee's interest will subsist until the term expires. (Litt. s. 289 ; Grute v. Locroft, Cro. Eliz. 287 ; Cleric v. Clerk, 2 Vern. 323.) So, where joint tenants concur ia granting a lease, they make but one lessor, for the lease is the joint demise of all (Com. Dig. "Estates" (G. 6) ; Jurdain v. Steerc, Cro. Jac. 83) ; and on the death of one of the lessors, the Digitized by Microsoft® common. CAPACITY OF THE CONTRACTING PARTIES. 23 lessee's interest will contiaue, even though the lease be at will, as tenant to the survivor or sur- vivors, who will, of course, be entitled to the whole rent. [Senstead's case, 5 Co. E.. 10 ; Doe v. Sum- mersett, 1 B. & Ad. 135, 140.) But their joint demise operates both as a demise by each of his own share and a demise by all of the whole ; and, therefore, if joint tenants jointly demise from year to year, each of them, on giving due notice to quit, may recover his several share in ejectment {Boe V. Chaplin, 3 Taunt. 119), or put an end to the tenancy as to the whole, so that ejectment may be maiatained although the notice to quit be given by one of the lessors only {Boe v. Swnmersett, supra), for the tenant holds the premises only so long as he and they all shall agree. Unlike joint tenants who have one joint free- Tenants in hold, tenants ia common have several freeholds. They hold by several titles, and not by a joint title (Litt. s. 292) ; or, as Lord Coke expressed it, by one title and several rights. (Co. Litt. 189 a.) A tenant in common may therefore lease his un- divided share for any interest commensurate with his own either to a stranger or his companion [Story V. Johnson, 2 To. & Coll., Ex. 686; Snelgar V. Henston, Cro. Jac. 611) ; or with his co-tenants may concur in one lease, which although inopera- tive as a joint demise of the whole of their estate, their interests being several and distinct (Com. Dig. "Estates" (K. 8); Heatherley v. Weston, 2 Wils. 232 ; Burne v. Cambridge, 1 Moo. & Eob. 539), will operate as a distinct demise by each of his own part and a cross confirmation of each for the part of the other, without any estoppel, an interest passing from each lessor. {Mantle v. Wol- lington, Cro. Jac. 166 ; Brooks v. Foxcraft, Clayt. 137 ; Jurdain v. Steere, Cro. Jac. 83 ; Bac. Ab. Digitized by Microsoft® 24 LAW OF LANDLORD AND TENANT. Coparceners. Lords of manors. 13 Geo. 3, 0.81. "Joint Tenants" (H. 1) ; and see per Cur.m Thomp- son Y. Hakewell, 35 L. J., C. P. 18.) Where two or more females or female heirs of females together form an heir to lands or tene- ments of inheritance, they are called in law co- parceners, or more briefly parceners. (litt. s. 254, 170 a; Bac.Ab. "Coparceners;" Com. Dig. "Par- ceners" (A. I. 3.) Their estate, "the rarest kind of inheritance that is in the law" (Co. Litt. 164 a), partakes of the properties both of a joint tenancy and of a tenancy in common. They constitute one heir, possessing, as to strangers, like joint tenants, but one freehold ; but for the purpose of leasing they, like tenants in common, have several freeholds (Vin. Ab. "Parceners;" Litt. s. 241; Co. Litt. 163 b, 164 a), and may make leases pre- cisely in the same manner. {Milliner v. RoUnson, Moore's cases, 682.) When a copyhold tenement escheats, is surren- dered or becomes forfeited to the lord, he may make a new grant of it by copy, in fee, or for any less estate, provided there be within the manor a custom for that purpose. {B. v. Hornchwrch, 2 B. & Al. 189 ; Badger v. Ford, 3 B. & Al. 153 ; B. V. Wilby, 2 M. & S. 504; Cole, Ejec. 632.) But the custom, which is the life of a copyhold assurance, must be strictly followed. The ancient rent and services must be reserved, or the grant will be void as against the lord's successor. [Doe v. Strickland, 2 Q. B. 792.) By custom the lord may lease for years portions of the wastes of a manor (Lord Northicick v. Stanicay, 3 Bos. & P. 346) ; but a custom to lease without restriction is bad {Arlett v. Ellis, 7 B. & C. 346 ; Badger v. Ford, supra), being inconsistent with the rights of the commoners. By statute, lords of manors may, with the consent of three-fourths of the com- Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 25 moners, lease any part, not exceeding one-twelfth, of the wastes, for any period not exceeding four years, for the hest rent that can be got at public auction, the same to be applied in draining, fenciug, and improTing the residue. (13 Greo. 3, c. 81, s. 15.) Unless authorized by the custom of the manor copy- {Wells V. Partridge, Cro. Eliz. 469; 6 Yin. Ab. '"'""^' 118), or the express licence of the lord {Jackman V. iloddesden, Cro. Ehz. 351; Kemey v. Richard- son, id. 728), a copyholder cannot lease his copy- hold tenement for more than a year, or make a lease evading or exceeding the custom or licence, if there be one, without forfeiting his estate (1 Watk. Cop. 327; 1 Scriv. Cop. 544; Cole, Ejec. 615) ; but he may lease for a shorter term than that permitted by the licence or custom, in accordance with the rule, omne niajus coiitinet in se minus {Goodu'in v. Longhurst, Cro. EKz. 535 ; JEaston v. Pratt, 33 L. J., Ex. 233) ; and a lease not warranted by the custom or licence will be good against all but the lord {Doe v. Tressider, 10 L. J., Q. B. 160), who may enforce or waive the forfeiture at his option [Doe v. Bousfield, 14 L. J., Q,. B. 42), whilst the privilege of leasing for one year without licence is allowed to copy- holders by the general custom of the kingdom. (Frosel v. Welch, Cro. Jac. 403.) There are probably exceptions (1 Prest. Abs. 202) ; and in many manors a special custom authorizes leases for years or for life, and a certain number of years after. (1 Scriv. 457.) All the powers to authorize and grant leases contained in the Settled Estates Act, 1877 (40 & 41 Yict. c. 18, s. 46, ante, pp. 14, 16) are extended to the lords of settled manors to give licences to their copyhold and customary tenants to grant such leases as may be granted of freehold hereditaments under that act. (Id. sect. 9.) Digitized by Microsoft® 26 LAW OF LANDLORD AND TENANT. Beversionera and remain- dermen. The croTvn. 1 Anne, stat. 1, c. 7, Government depart- ments. But to grant or refuse a licence is entirely in the discretion of 'tlie lord {Reg. v. Hall, 9 A. & B. 339) ; though in that case Ballard v. Agard (6 Vin. Ah. 240, "Copyholds," Y, e), was cited, as deciding that a suit would lie in equity to compel a lord to grant a licence to lease ; but that authority is not satisfactory. Persons having a present right to the future enjoyment of an estate as remaindermen or rever- sioners, expectant either upon an estate for years, for life, or in tail, may make leases which will take effect in possession on the determination of the preceding estate. {Palmer v. Thorpe, Cro. EHz. 162.) In consequence of the improvident grants of preceding monarchs, it was found necessary, in the reign of dueen Anne, to restrain the demising power of herself and successors. It was accord- ingly enacted that all leases of crown lands or tenements (except advowsons or vicarages) should be void, unless made for a term not exceeding thirty-one years or three lives, or some term of years determiaable upon one, two or three lives (1 Anne, stat. 1, c. 7, s. 5) ; or, in the case of building or repairing leases, fifty years or three lives (id. s. 6), subject to certain conditions and restrictions, none of which apply to her Majesty's private estates. (25 & 26 Yict. c. 37, s. 2.) Com- paratively recent legislation has vested most of the crown lands in the Commissioners of Woods and Forests, who are empowered to grant leases for any term not exceeding thirty-one years, or build- ing leases niaety-nine years (10 Geo. 4, c. 50, ss. 22 — 26), subject to certain conditions. (Id. ss. 27—33.) Government departments, authorized to acquire, sell, exchange or demise lands for public purposes, may make leases, the terms of which are ia strict Digitized by Microsoft® CAPACITY OF THE CONTEACTING PARTIES. 27 compliance witli the particular statute under which they act. Leases of lands belonging to the Duchy of Cornwall are regulated by 26 & 27 Yict. c. 49 ; to the Duchy of Lancaster by 48 Geo. 3, c. 73 ; 1 & 2 Geo. 4, c. 52. And leases of miaes, minerals and quarries belonging to the crown in . Dean Forest by 1 & 2 Vict. c. 43, as amended by 24 & 25 Vict. c. 40. Unless restrained by statute (public or private), Corpora- or by their several bye-laws, corporations may '°'^' grant leases (which must be by deed under their common seal, Finlay y. Bristol and Exeter Bail- ivay Company, 21 L. J., Ex. 117; and by their proper title of iacorp oration, 1 Kyd, Corp. 234 — 237), which will be binding on their successors for any term consistent with their own estate. {Smith V. Barrett, Sid. 161.) And although a lease by a corporation not under its common seal is void, yet occupation and payment of rent under the void iustrument by the tenant will create an implied tenancy from year to year upon such of the terms of the instrument as may be applicable to such a tenancy, and the corporation may maintain an action for a breach thereof. {Wood v. Tate, 2 B. & P., N. E. 247 ; Ecclesiastical Commissioners v. Merral, 38 L. J., Ex. 93.) So, specific perform- ance of a parol contract for a lease by a corporation win be decreed if there have been part per- formance. {Steeven's Hasp. v. Byas, 15 Ir. Oh. Eep. 405.) By the common law, ecclesiastical corporations Ecciesias- aggregate, as the dean and chapter of a cathedral, ei^i^"^ and eleemosynary corporations aggregate, as the synary. master and fellows of a college, were capable of granting leases for any term without the consent or confirmation of any person whomsoever. But ecclesiastical corporations sole, consisting of one Digitized by Microsoft® 28 LAW OF LANDLORD AND TENANT. Enablini? Act, 32 Hen. 8, c. 28. Disablinfr Acts, 1 Eliz. c. 19 ; 13 Eliz. c. 10. person, as a bishop, could only make leases co- durable witli their own -estate, except with the consent or confirmation of such person as the law Teqmied,conctir)'entibus Mis qum injure reqiiiruntur (Co. Lit. 44a; 2 Bla. Com. 318—321; Shep. Touch. 281), which being obtained they could exercise equally unlimited powers. {Grindal's case, 4 Leon. 78.) This unreasonable power of leasing tending to the impoverishment of their successors, the salu- tary control of parliament was exercised in con- fining within more reasonable limits the latitude allowed by the common law. Hence originated numerous statutes known to lawyers as enabling and disabling or restraining acts. The first of .these, known as the enabling statute of 32 Hen. 8, c. 28, empowered all corporations sole (except parsons and vicars) to make leases by deed in- dented, to commence from the day of making, of lands most commonly let for twenty years before, for a term not exceeding twenty-one years or three lives (not for both), which, without confir- mation, were binding upon their successors : the usual and customary rent for the preceding twenty years being reserved, any old lease in being being first absolutely surrendered or within a year of its expiration, and such leases not to be without im- peachment of waste. (32 Hen. 8, c. 28, ss. 1, 2, 4 ; see also 5 Geo. 3, c. 17, s. 1.). With confirmation, long leases made by corporations sole continued, as far as that act was concerned, to be good against their successors, as they had been at common law. (Gibs. 744.) Accordingly, by dis- abling statutes of Elizabeth, first archbishops and bishops (1 Eliz. c. 19, s. 5), and next, all other corporations, whether sole or aggregate, were dis- abled altogether from leasing- ecclesiastical pro- perty for more than twenty-one years or three lives. Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 29 (13 Eliz. c. 10, s. 3.) But the 14 Eliz. c. 11, ^^^p«™ ss. 17 — 19, excepted out of the restrictions of the wEiiz. 13 Eliz. c. 10, leases of houses (not being the "■ "' ^' "' capital or dwelling-houses of the lessors) situate in cities, horoughs, corporate or market towns, which, subject to certain conditions to be strictly observed, aU ecclesiastical and eleemosynary corporations sole (except bishops) may demise, with not more than ten acres of land appurtenant, for any term not exceeding forty years. It should be observed that, although all leases not made in accordance with the two above-mentioned disabling statutes were thereby declared " utterly void," the courts construing void to mean "void at election," have held such leases valid duriug the life of the cor- poration sole (2 Shep. Touch. 283; Salisbury/' s case, 10 Co. El. 58 b, 60 b), or of the head of the cor- poration aggregate (Co. Lit. 45 a), by whom they were granted, and voidable only iy the successors, who have equal power to confirm them. {Per Holroyd, J., Edwards v. Dick, 4 B. & Al. 217 ; Doe V. Bancks, 4 B. & Al. 407; Pennington v. Cardale, 27 L. J., Ex. 438 ; Doe v. Taniere, 18 L. J., Q. B. 49.) But the Statute of Limitations statute of (3 & 4 WlLI. 4, c. 27) runs against the successors Y^wTi, from the grant of the lease, and not from their "■ ^^• election to avoid it. Where the governors of a hospital granted a lease in 1783 for ninety-nine years, an action to set the lease aside in 1876 was held barred by the statute. {Governors of Mag- dalen Hospital V. Knotts, L. E., 8 Ch. D. 709 ; 26 W. E. 640.) Such leases are, however, binding upon the lessees who, having accepted them, are justly estopped from repudiating them. By iseuz. another statute all the ecclesiastical and other "' "' ^' ^' persons mentioned in the 13 Eliz. c. 10 (which did not, as we have seen, include archbishops and bishops), were restrained from making any new Digitized by Microsoft® 30 LAW OF LANDLOED AND TENANT. lease where the old one was not to be expired, surrendered or ended with in three years after the making of such new lease (18 Eliz. c. 11, s. 2) ; the object being clearly to restrain leases in re- version. Confirmation, being excluded in cases within the disabling statutes of Elizabeth, became of practical use only to (1) parsons, vicars (spe- cially excepted out of 32 Hen. 8, o. 28, by sect. 4), and perpetual curates who have received Queen Anne's bounty (held within same exception, Boe v. Thomas, 9 A. & E. 556), who cannot, nor ever could, make any lease without confirmation ; and (2) to bishops who, not being included in the restraint of 18 Eliz. c. 11, upon concurrent leases, may still in some cases make such leases with the consent of the dean and chapter. At common law, therefore, the incumbent of a benefice could not grant any lease which would operate as a valid demise for a longer term than his own incum- bency ( Wheeler v. Hey don, Cro. Jac. 328 ; Frice v. Williams, 1 M. & W. 6; Doe v. Carter, Ey. & Moo. 237; Boe v. Yarloroiigh, 1 Bing. 24), until the B & Vict. 5 & 6 Yict. 0. 27 empowered aU incumbents, with •the consent of the bishop and patron, and in the case of copyhold lands, where a lease cannot be made without his licence, with the consent of the lord of the manor, to lease the lands belonging to their benefices (except the parsonage and ten acres of glebe) on farming leases for fourteen, or in eases where the lessee shall covenant to improve the demised premises at his own expense, twenty years, subject to certain restrictions imposed in the inte- rests of their successors. This act does not extend to glebe lands, which have been usually let on lease by incumbents {Jenkins v. Green, 28 L. J., Oh. 822) ; so that a rector, with the consent of the patron and bishop, may still exercise his common law power of leasing his glebe, subject to the pro- Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 31 visions of 13 Eliz. c. 10. Further powers, in addition to existing powers of leasing, have been given by the Ecclesiastical Leasing Act, 1842, as 5 & a viot. amended in 1858, to all ecclesiastical corporations, amended by aggregate or sole (except any college or corpora- 2i&22Viot. tion of vicars choral, priest vicars, senior vicars, custos, and vicars or minor canons, and except any ecclesiastical hospital, or the master thereof), who may, with certain consents, grant building, repairing or improving leases for ninety-nine years, and leases of mines or quarries, running water, way-leaves and other rights and easements for sixty years, subject to certain restrictions and conditions (5 & 6 Yiot. c. 108, ss. 1—9, 18, 20— 32) ; or where the Ecclesiastical Commissioners are satisfied that it is to the permanent advantage of the estate, in such manner as the commissioners may think proper. (21 & 22 Yiot. c. 67, s. 1.) By 14 & 15 Yict. c. ] 04 (continued and amended Episcopal by 17 & 18 Yict. c. 116; 19 & 20 Yiot. c. 74; ^^Z: 20 & 21 Yict. c. 74 ; 22 & 23 Yict. c. 46 ; 23 & Sl'ifviet 24 Yict. c. 124 ; 24 & 25 Yiot. cc. 105, 131 ; 30 ■=• loi- & 31 Yict. 0. 143 ; 31 & 32 Yiot. oc. Ill, 114 ; 32 & 33 Yiot. c. 85 ; 38 & 39 Yiot. c. 72), eccle- siastical corporations, sole or aggregate, with the written approval of the Church Estate Commis- sioners, may lease lands acquired under that act from year to year, or for any term not exceeding fourteen years; or mining and building leases upon such terms as the commissioners may think fit. (Sect. 9.) A similar provision as to acquired lands is contained in the 9th section of the Eccle- siastical Leasing Act, 1858. By 23 & 24 Yict. c. 124, s. 8, no lease of lands 23&2iVict. assigned as the endowment of any see under this "' ^^' act can be granted by the archbishop or bishop, otherwise than from year to year, or for any term not exceeding twenty-one years, subject to similar Digitized by Microsoft® 32 LAW OF LANDLOKD AND TENANT. conditions to those contained in the "Act for better enabling Incumbents of Ecclesiastical Benefices to demise" (5 & 6 Yict. c. 27, ante, p. 30) ; but with the approval of the estates committee of the Eccle- siastical Commissioners, mining, building or other leases may be granted upon such terms as they may think fit. None of the previous disabling or restraining acts (except 5 & 6 Vict. c. 27) extended to copy- holds belonging to ecclesiastical benefices, wHch the rectors, vicars, &c., having power so \o do, were accustomed to grant and lease for lives and long terms of years to the prejudice of their successors ; 24 & 26 Vict, and therefore by the 24 & 25 Yict. c. 105, amended amended by by 25 & 26 Yict. c. 52, it was rendered unlawful 0^62^^^'°*' fo'^ S'Hy rector, vicar, &c., who after 6th August, 1861, should become possessed of any manors, lands, &c., belonging to any ecclesiastical benefice, to make any grant or lease thereof in any other way than pursuant to 5 & 6 Yict. cc. 27, 108 ; or 21 & 22 Yict. c. 57. By section 2, leases made and rights acquired before this act are expressly protected. In every instance it is most necessary to turn to the acts themselves for details. By the Universities and College Estates Acts, 1858 and 1860, the universities of Oxford, Cam- bridge, Durham, and their respective colleges, together with the colleges at Winchester and Eton, which are lay or civil corporations aggre- gate {Rex V. Cambridge, 3 Burr. 1656), are em- powered to grant leases, generally, for any term not exceeding twenty-one years ; building and re- pairing leases, ninety-nine years ; running water, way-leaves, other rights and easements and mining leases, sixty years, without the consent of any other person or persons whomsoever, but subject to conditions imposed for the protection of their successors. But they are not restrained from Civil corpo- rations. 21 & 22 Vict, c, 44; 23 & 24 Vict, c. 59. Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 33 granting any leases which they might legally have granted before these acts. The power of leasing possessed by the University of London and other colleges is regulated by their private statutes, charters and bye-laws. Municipal corporations cannot demise their Mumcipai lands for more than thirty-one years, without the h3™^ consent of the Lords of the Treasury (5 & 6 Will. s&6wm.4, 4, c. 76, s. 94), except in the case of renewed "' leases (s. 95; Att-Gen. v. Yarmouth, 21 Beav. 625), and building leases for terms not exceeding seventy-five years. (Sect. 96.) The many inconveniences caused by the diffi- rarfsh culty of making valid leases of parish property to create a tenancy other than from year to year {Boe V. Terry,, 4 A. & E. 274), neither church- wardens or overseers (except in London, War- ner's case, Cro. Jao. 532), jointly or severally, having any legal interest to demise, were to some extent remedied by 59 Gleo. 3, c. 12, which vests es Geo. s, all real property belonging to the parish in the "' churchwardens and overseers in succession, as a corporation (s. 17), and empowers them jointly {Woodcock V. Gibson, 4 B. & C. 462), with the consent of the vestry, to let portions of land, not exceeding twenty acres each, at such rent and for such terms as the vestry shall determine. (Sect. 12.) This act does not apply to copyhold lands {Boe v. Foster, 3 C. B. 215) ; its provisions must be strictly observed {Boe v. Gower, 21 L. J., Q. B. 57), and "applies to those cases only where the rents are applicable solely to parochial purposes which are under the control of the parish officers." {Per Parke, B., Utlmatt v. ElUns, 13 M. & W. 777.) Prior to the passing of the Charitable Trusts Trustees of Act, 1853, which, with amending acts, now regu- leTiT^ykt. lates the estates of charities, trustees of charities "■ is^^^^ ^ might grant such leases as were beneficial to the is&igvjct. Digitized by Microsoft® 34 LAW OF LANDLOKD AND TENANT. 23 & 24 Vict, lasting interests of tlie charity; if otherwise, as where there was inadequacy of rent, unreasonable- ness of term, absence of necessary covenants, &c., the Court of Chancery, as paramount trustee, would set them aside at any distance of time {Att.- Gen. V. Cross, 3 Mer. 524; Att.-Gen. v. Oice?i, 10 Yes. 555 ; Att.-Gen. v. Broolis, 18 Ves. 319 ; Att.- Gen. V. Hothmn, 3 Euss. 415), until protected by the Statute of Limitations (3 & 4 Will. 4, c. 27, ss. 24 — 27), which extends to charities. {Mag. Coll, Oxon V. Att.-Gen., 26 L. J., Ch. 620.) Now, by 16 & 17 Yict. c. 137, leases authorized by any two of the Charity Commissioners sitting as a board (sect. 6), have the like effect and vali- dity as if authorized by the express terms of the trust affecting the charity. By 18 & 19 Vict. c. 124, aU lands, &c. then vested in the "Treasurer of Public Charities," became vested in like manner and upon the same trusts ia the secretary of the board as a corpora- tion sole, under the name of " The Official Trustee of Charity Lands." (Sect. 15.) By sect. 16, the acting trustees of every charity were empowered to grant all such leases of land belonging thereto, and vested in the official trustee, as they could duly have granted if the same land were legaUy vested in themselves. By 23 & 24 Yict. c. 136, a majority of two- thirds of the trustees of any charity assembled at a meeting of their body, duly constituted, having power to lease any property of the charity, have power, on behalf of their trustees and of the official trustee, where his concurrence would be otherwise required, to do aR things requisite for carrying such lease into legal effect. Trustees of Prior to the Bankruptcy Act, 1869, power to 32^ Vict. g"r3,nt leases of the bankrupt's estate vested in his c. 71. ■ assignees. Now, by 32 & 33 Yict. c. 71, the pro- Digitized by Microsoft® CAPACITY OF THE CONTKACTING PARTIES. 35 perty of the bankrupt, divisible amongst bis cre- ditors, wbicb comprises the capacity to exercise all sucb powers over property as might have been exercised by the bankrupt for his own benefit (s. 15, § 4), vests in the person for the time being filling the ofiice of trustee (s. 17), who is ex- pressly authorized to exercise any powers, the capacity to exercise which is vested in him under this act. (Sect. 25, § 5.) The trustee has, there- fore, exactly the same power to grant leases as the bankrupt had at the commencement of his bank- ruptcy. Receivers in chancery may demise under the Eeceivers. direction of the court, but not otherwise. {Morris V. Elme, 1 Ves. jun. 139; Durnford v. Lane, cited 2 Madd. Ch. Pr. 244; Cooke v. 'Coolce, 2 Mol. 371.) They must let the estate to the best advantage. ( Wynne v. Neicboroiigh, 1 Ves. jun. 164.) A mere bailiff has no interest, and cannot lease Bailiffs. his employer's lands otherwise than at will [Shop- land V. Ryoler, Cro. Jao. 55 ; Brury v. Fitch, Hutt. 16 ; Knipe v. Palmer, 2 "Wils. 130) ; but a power may be conferred on him for the purpose. A farm bailiff, accustomed to let from year to year upon the ordinary terms, and to receive rents, has no authority in law to let upon unusual terms un- known to the owner [Turner y. Hutchinson, 2 F. & F. 185) ; and a steward has no general autho- rity enabling him to grant leases of farms for terms of years. [Collen v. Gardner, 21 Beav. 540.) An agent, acting rmder a power of attorney as Agents, manager of property, may make a lease binding on his principal [Hamilton v. Clanricarde, 1 Bro. P. C. 341), if it be within the scope of his autho- rity [Fenn v. Harrison, 3 T. E. 757), which must be by deed if the lease be by deed [Harrison v. Jaclison, 7 T. R. 207), but need not even be in writing if the lease be by parol. [Coles v. Treco- DigitiSdiy Microsoft® 36 LAW OF LANDLORD AND TENANT. thick, 9 Ves. 250.) If an agent make a lease without sufficient authority, his principal may sub- sequently adopt his act by ratification in writing (Fitzmaiirice v. Bayley, 6 B. & B. 868), or without writing (Rodwell v. Eden, 1 F. & F. 542) ; but if he do not do so, the agent, having executed a lease professedly as attorney for another, may be sued for a breach of his warranty that he had sufficient authority : such a warranty being im- plied. {Bimmxs v. Patchett, 7 E. & B. 568 ; Pow \. Davis, 30 L. J.,"Q,. B. 257.) An agent should always sign as agent to avoid personal liability {Claij V. Southen, 21 L. J., Ex. 202; Parker y. Winlow, 7 E. & B. 942), and in the name of his principal. ( White v. Cuyler, 6 T. E. 176 ; Cooke V. Wilson, 26 L. J., C. P. 15.) It seems doubtful whether an agent employed to let a house has implied authority to let persons into possession; though on principle it is submitted he ought to have, and slight evidence will be sufficient to prove that he has express authority. {Slack v. Creice, 2 E. & F. 59.) An agent's authority, though under seal, may be Tevoked without deed, (Pex V. Wait, 11 Price, 518 ; Manser v. Back, 6 Hare, 443.) Executors Au cxccutor Or administrator may demise the nistxatoi-s' property which devolves on him in either of those capacities (Bac. Ab. " Leases," (I 7) ; but whilst an executor may do so before probate {Boe v. Swn- tnerset, 2 "W. Bl. 692), an admiaistrator cannot, until after he has obtained the letters of adminis- tration which alone constitute his title. (1 Wms. Exors. 354.) A lease by one of several executors (Doe V. Sturges, 7 Taunt. 222, suh nom. Doe v. Hayes) or administrators (Jacomh v. Harwood, 2 Yes. sen. 265) is good. If a term of years has been specifically bequeathed, a person proposing to take a lease from the executor ought to satisfy Digitized by Microsoft® CAPACITY OF THE CONTRACl'ING PAKTIES. 37 Mmself that the executor has not assented to the bequest, as in such case his power of leasing is at an end, and the legatee may maintain ejectment. {Doe V. Gui/, 4 Esp. 154 ; Johnson v. Wanoick, 17 C. B. 516; Fenton v. Clegg,-9 Ex. 680; 2 Wms. Exors. 1275, 6th ed.) The marriage of an exe- cutrix or administratrix transfers to the husband the lohole right of administration, and he must be the demising party in all leases. [Thrustoict v. Coppin, 2 W. Bl. 801.) Leases by executors or administrators are voidable in equity, unless shown by the lessees to be a due administration of the assets. {Drohan v. Drohan, 1 BaR & B. 185 ; Keating v. Keating, Lloyd & Gov. Oa. temp. Sug- den, C. 133.) An administrator, durante minoritatv, may demise during the non-age of the executor, who on attaiuing his majority may avoid the lease for the residue of the term granted. {Finch's case, 6 Eep. 68 a ; Prince's case, 5 Rep. 29 a ; 38 Greo. 3, c. 87, s. 6.) Executors who have refused to administer cannot demise after administration has been granted to another. {Broker v. Charter, Cro. Eliz. 92.) Leases by a mortgagor are binding on the Mortgagors mortgagee, if made prior to the mortgage {Moss gagees. V. GaUiniore, 1 Sm. L. C. 636, 7th ed.; Rogers V. Humphreys, 4 A. & E. 299); if made subse- quently, except under an express power in the mortgage deed {Bevan v. Hahgood, 30 L. J., Ch. 107), though good byway of estoppel between the parties {Boe v. Thompson, 9 Q. B. 1037; Cuth- bertson v. B'ving, 28 L. J., Ex. 306), they are void against the mortgagee, who may at once, with- out notice or demand, eject the lessee {Thunder V. Belcher, 3 East, 449 ; Keech v. Hall, 1 Doug. 21 ; jjcr Littledale, J., Pope v. Biggs, 9 B. & 0. 253), unless he adopt the act of the mortgagor in giving the lease by acts, other than mere notice to Digitized by Microsoft® 38 LAW OF LANDLORD AND TENANT. the lessee, evidencing the creation of a tenancy between the mortgagee and tenant. {Evans v. Elliott, 9 A. & B. 342; Brown v. Storetj, 1 M. & Gr. 117.) If, without any express power, the mortgagor grant a lease, the tenant, during his possession, may not dispute the mortgagor's right to demise. {Alchorm v. Gomme, 2 Biiig. 54.) So long as the equity of redemption is not foreclosed, the mortgagee cannot demise so as to bind the mortgagor, unless to avoid an apparent loss [Hun- (jerford v. Clay, 9 Mod. 1 ; Franldinski v. Ball, 34 L. J., Oh. 153) ; so that where lands in mort- gage are to be demised, both mortgagor and mort- gagee ought to concur ia the lease for the security of the tenant. {Doe v. Adams, 2 Or. & J. 232; Doe V. Buchiell, 8 C. & P. 566; Carpenter v. Parker, 3 0. B., N. S. 206.) Guardians. Gruardians by nature (father or mother until child attains twenty-one) or for nurture (also father or mother until child attains fourteen, where there is no testamentary guardian. Roach v. Gar- van, 1 Yes. 158) have only the care of the infant's person, and cannot make any lease of his land, except, perhaps, a lease at wiU. (Pigot v. Garnish, Oro. Eliz. 678.) But guardians appointed by the common law in respect of lauds descended to an infant until he attains fourteen (called guardians in socage, Bao. Ab. "Leases," (19), guardians appointed by will under 12 Car. 2, c. 24, (called testamentary guardians,) and guardians by elec- tion, (('. e., elected by an infant of fourteen, seised of socage land, and improvided with a testamentary guardian,) have not merely a bare authority over but an actual interest in the infant's estate, and as domini pro tempore have the power of making leases during the continuance of their guardian- ship {Biir/ar v. Norton, 1 Freem. 102; Wade v. Baher, I Ld. Eaym. 130 ; Rex v. Sutton, 3 A. & Digitized by Microsoft® CAPACITY OF THE CONTRACTING PARTIES. 39 E. 597); but a demise for a longer period than the -ward's minority would he voidable by him on his coming of age. (Bac. Ab. "Leases," (I 9.) Gruardians appointed by the Lord Chancellor are in the nature of receivers in chancery, and must obtaia the sanction of the court to enable them to grant leases. {Rex v. Sutton, 3 A. & E. 608 ; Re James, L. E., 5 Eq. 334.) A lease made by an infant is voidable by him PersoiB on his attaining his majority {Ketsei/s case, Cro. abintv: Jac. 320 ; Ashfield v. Ashfield, Sir W. Jo. 157), or '"' ^''^'=- by his heirs if he die withia age. (Co. Litt. 45 b.) It has been said that a lease which is clearly for the infant's benefit is not voidable {per Buller, J., Maddon v. Wliite, 2 T. E. 161); but the better opinion would seem to be that the iufant is never precluded from disputing the lease on attaining twenty-one (2 Prest. Conv. 248), except it be made by him in his corporate capacity. (Bro. Ab., tit. " Age," pi. 80.) By custom, in some places, an infant is of full age at fifteen to make biading leases (Co. Lit. 45 b), and the crown can never avail itself of the plea of infancy to avoid its leases. {Re Buchxj of Lancaster, Plowd. 212.) "Whilst some act of notoriety, as ejectment, entry, demand of possession, or at least express notice is neces- sary, and the execution of a new lease to another lessee is insufficient, to amid {Slater v. Brady, 14 Ir. C. L. E., Ex. 66), very slight acts, where the lease was for the benefit of the infant {Ex parte Grace, 1 B. & P. 377), have been held to amount to a confirmation. The act of confirma- tion may be by deed {Anon., 2 Leon. 220), by parol (4 Leon., 4 pi. 15), inferred from acceptance of rent {As/if eld v. Ashfield, uU supra), or implied from mere words of congratulation, as " Grod give you joy of your lease." (Bac. Ab. "Estate," B.) The Infant's Eelief Act, 1874 (37 & 33 Yict. c. Digitized by Microsoft® 40 LAW OF LANDLOKD AND TENANT. 62), provides (sect. 2) that no action shall be brought upon any ratification made after full age of any promise or contract made during infancy, whether there shall or shall not be any new con- sideration for such promise or ratification after full age ; but it is conceived that this enactment, although it applies to ratifications made after the passing of the act of contracts made before that time {Ux parte Kibble, L. E., 10 Ch. App. 373), does not prevent that ratification which has always been implied from the receipt or payment, aftei; full age, of rent reserved on a lease made to or by a person during his minority. The lease, to be good, must be the infant's own personal act. Neither a lease by his agent nor his own ratification thereof will bind him. {Doe v. Roberts, 16 M. & W. 781.) By statute, infants are empowered to grant re- newable leases under the direction of the Court of Chancery, i. e., Chancery Division of the High Court of Justice (Judicature Act, 1873, s. 34) ; and, subject to the same authority, they may grant building, farming and other leases without fine, and reserving the best rent. (11 Geo. 4 & 1 Wni. 4, c. 66, ss. 16, 17.) The court may also authorize leases of infants' estates for the terms and subject to the provisions contained in the Settled Estates Act, 1877 (40 & 41 Yict. c. 18, s. 49). By this section guardians on behalf of infants may execute all powers given and make all applications, and give all consents and notifications required under this act, but in the case of an infant tenant in tail a special direction of the court is necessary, (b) Manied A married woman may make a valid lease of property (1) acquired by her in any employment, occupation or trade, or by the exercise of any literary, artistic or scientific skill carried on sepa- Digitized by Microsoft® "women. CAPACITY OF THE CONTRACTING PARTIES. 41 rately from her liusband, since the passing of the Married Women's Property Act, 1870 (33 & 34 Vict. c. 93) ; (2) settled to her separate use with- out restraint on alienation ; or (3) which she is expressly empowered to demise. (Sug. Pow. c. 4, s. 1.) With these exceptions, a lease made by a wife alone is absolutely void. (Goodright y. Stra- 2}/ian, Cowp. 201.) But if her husband concur in 3&4Wiu. the deed and the wife acknowledge it before a judge or two perpetual commissioners (or before a county court judge, 19 & 20 Vict. c. 108, s. 73), she may make a lease for any term consistent with her estate; and by the Settled Estates Act, 1877, 40&4iviofc. husbands entitled to settled estates in right of their wives, or to unsettled estates as tenants by the curtesy, or in right of a wife who is seised in fee, may, vrithout application to the court, make leases thereof (except the principal mansion-house and the demesnes thereto attached) for any term not exceeding twenty-one years, to take eifect in pos- session, and subject to provisions contained in that act. (Sects. 46 — 48.) Longer leases of settled estates, in which the wife has only a life interest, for building, repairing or mining purposes, must be authorized \>j the Chancery Division of the High Court, pursuant to 40 & 41 Vict. c. 18, unless the settlement contains some express power authorizing such leases. Leases of the wife's freeholds, made by husband and wife, or by the husband alone, not in pur- suance of these statutes or of an express power, if bij deed, are good during coverture {Wiscot's case, 2 Co. E. 60 ; Bateman v. Allen, Cro. Eliz. 438; Bac. Ab. "Leases," (0 1) ; 2 Wms. Saund. 180, n. 9), but voidable by wife on the husband's death, unless she accepts rent subsequently due or otherwise confirms them. {Doe v. Weller, 7 T. E. 478 ; Toler v. Slater, 37 L. J., Q. B. 33.) Digitized by Microsoft® 42 LAW OF LANDLORD AXD TENANT. If hy parol, such leases absolutely determine upon the hushand's decease ( Walsall v. Heath, Cro. Eliz. 656; Parry v. Eindle, 2 Taunt. 181), and of course the tenn must not exceed three years. (29 Oar. 2, c. 3, ss. 1, 2 ; 8 & 9 Yict. c. 106, s. 3.) If the husband survives his wife, and becomes tenant by the curtesy (having had issue by her bom alive, that might hj possibility inherit the estate as her heir), the lease will absolutely deter- mine at his death {Miller v. Maynicaring, Cro. Car. 397) ; if he does not become tenant by the curtesy the lease becomes void upon the wife's death as against her heir at law. {Howe v. Scarrott, 28 L. J., Ex. 325 ; Sill v. Saunders, 2 Bing. 112 ; 8. 0. (in error), 4 B. & C. 529.) The husband has the sole dominion during his life over his wife's leaseholds (Co. Lit. 46 b, 351 a; Manhy v. Scott, 2 Sm. L. C. 429 ; but see the Married Women's Property Act, 1870), which he may underlet for a term to commence immediately or subsequent to his death. [Gruto v. Locroft, Cro. Eliz. 287; Anon., Poph. 4.) Leaseholds held by the wife in autre droit as executrix or administratrix may be disposed of by the husband, who has the whole right of administration. {Thriistout v. Coj^pin, 2 W. Bl. 801.) (c) Luna- A lunatio may make a lease binding upon him ; but if it be proved that the lessee knew and took advantage of the lessor's incapacity, the lease will be void. {Bane v. Kirhmll, 8 C. & P. 679 ; Mel- ton V. Camroux, 2 Ex. 487; S. C, in error, 4 Ex. 17 ; Beavan v. MeBonncll, 23 L. J., Ex. 94, 326 ; Elliott V. Incc, 7 Be G., M. & G. 475.) The Lord Chancellor may authorize the committee of the estate of a lunatic to grant building, repairing or farming leases (16 & 17 Yict. c. 70, s. 129) ; or leases of mines, quarries, &c. already opened (id. s. 130), or even unopened, if necessary or oxpe- Digitized by Microsoft® tics. CAPACITY OF THE CONTRACTING PARTIES. 43 dient (id. s. 131) ; also to exercise leasing powers vested in the lunatic (id. s. 133), and to accept the surrender of old leases and grant new ones. (Id. s. 134.) The Chancery Division of the High Court of justice may also authorize leases of lunatics' settled estates, upon application of com- mittees on behalf of lunatics, for the terms of years, and subject to the provisions and restric- tions contained in the 40 & 41 Yict. c. 18. In the case of lunatic tenants in tail the special direction of the court is required. (Id. s. 49.) Aliens may now acquire and dispose of any pro- (a) Aliens. perty whatsoever as freely as natural-born British subjects. (33 Yict. c. 14, s. 2.) A lease extorted from a person while illegally (e) Pei-sons restrained of his liberty, or in fear of loss of life dures's or or limb, is voidable at his election when the ""o^'=«'te'i- duress has ceased. (5 Eep. 119.) A lease made by a person so intoxicated as not to know what he is doing is void. {Gore v. Gibson, 13 M. & "W". 623.) Any person who has been convicted of treason (*) Convicts. or felony, and sentenced to death or penal servi- tude, is precluded by 33 & 34 Yict. c. 23, s. 8, from leasing any property, unless when he is lawfully at large under any licence (id. s. 30), or has suilered his punishment, or received a pardon. (Id. s. 7.) During his disability, the adminis- trator of his property, appointed pursuant to sec- tion 9, may let any part thereof at his discretion. (Id. s. 12.) Sect. 2. — Who may he Lessees. All persons, except alien enemies {Calvin's case, 7 Co. E. 17), may be lessees (4 Cruise's Dig., Tit. XXXII. " Deed," c. 5, § 86) ; but demises to persons under disability may be by them avoided Digitized by Microsoft® 44 LAW OF LAKBLOED AND TENANT. ]jifants. upon removal of the disability. Thus, an infant may accept a lease and avoid it on attaining his majority {Ketseifs case, Cro. Jao. 320), if he elect to do so within a reasonable time thereafter, otherwise he will be liable to pay rent, including arrears (Bac. Ab. "Leases," (B), and perform all other obligations of the tenancy, even though it be disadvantageous to him. {N. W. Rail. Co. v. M'Michacl, 20 L. J., Ex. 97.) If at full age he annuls a lease, he cannot recover a premium paid for it {Holmes v. Blogg, 8 Taunt. 35) ; and duriag infancy he will be liable for rent of necessary lodgings (Hands v. Slaney, 8 T. E. 578), though not for rent of a house taken for trading purposes. {Loive V. Griffiths, 1 Scott, 458.) Leases to infants may be surrendered > and renewed under direction of the Chancery Division of the High Court. (11 Geo. 4 & 1 Will. 4, c. 65, s. 12 ; 36 & 37 Yict. c. 66, s. 34.) The disability of infants is for their benefit only ; so if an infant's partner obtain the renewal of an advantageous lease to himself only, the infant shall share the benefit, though he may repudiate any loss if the lease turn out disadvan- tageous. {Ex parte Grace, 1 B. & P. 376.) Man-ied A. feme covert may likewise take a lease, but it will be voidable by her husband {Sicaine v. Holman, Hob. 204 ; Co. Litt. 3 d), and (unless she has as- sented to it) by herself or her heirs after his death. {lb.) A married woman living apart from her husband may take a lease, and become liable for payment of rent and performance of covenants out of her separate estate {Gaston v. Frankmn, 2 De G. & Sm. 561), or property acquired by her under the Married Women's Property Act, 1870. (33 & 34 Yict. c. 93.) A lease made to husband and wife jointly may be avoided by the wife after the death of her husband only ; but if she then acquiesce she may become liable on the lease for rent and waste Digitized by Microsoft® women. CAPACITY OF THE CONTRACTING PARTIES. 45 committed during the coverture (2 Inst. 303 ; Com. Dig., tit. "Baron and Feme," s. 2), thougli not perhaps on any special covenants. (I Roll. Ab. 349, pi. 2 ; Brownl. 31 ; Dyer, 13 b.) Leases to married women may be surrendered and renewed by direction of the Chancery Division of the High Com-t of Justice. (11 Geo. 4 & 1 WiU. 4, c. 65, s. 12 ; 36 & 37 Vict. c. 66, s. 34.) Idiots and lunatics may take leases for their Persons iwti benefit (Co. Litt. 2 b) ; but a lessor may not profit """""■ by taking advantage of their incapacity. {Dane V. Kirkwall, 8 C. & P. 679 ; Browne v. Joddrell, M. & M. 105.) A lease granted fairly by the lessor, and accepted and enjoyed by the lunatic, cannot be set aside. [Molton v. Camroux, 18 L. J., Ex. 68, 356 ; Beavan v. M'Bonnell, 23 L. J., Ex. 94 ; Campbell v. Rooper, 24 L. J., Ch. 644.) The committee of a lunatic may, on his behalf and for his benefit, surrender and renew leases under direction of the Lord Chancellor, and be admitted tenant of copyholds. (16 & 17 Vict. c. 70.) Leases executed by persons under duress, in fear Persons of loss of life or limb, or so totally intoxicated as SSress or not to know the nature and quality of the act they intoxicated, are doing, are not binding upon them. An alien (not beiQg alien enemies, ante, p. 43) AUens. may become a lessee as freely as a natural-born British subject. (33 Vict. c. 14, s. 2.) The administrator of the property of a person Convicts, who has been convicted of treason or felony, and sentenced to death or penal servitude, may take such leases as may become necessary to the proper management of the convict's property. (33 & 34 Vict. c. 23.) Corporations aggregate may take leases in their Corpora- corporate capacity (Bac. Ab. " Corporations," (E 4), '°'^' which win go in succession, unlike leases to a cor- poration sole, which at his death (in the absence of Digitized by Microsoft® 46 Jj.VW OF LAXDLORD AND TE:MANT. Trustees for charitable uses. Trustees of friendly societies. Trustees of public baths and wash- houses. Trustees for religious, educational, contrary custom, Bac. Ab. "Corporations," (E 4), devolve on his executors. (Co. Litt. 4 b). Leases to corporations, if for immoderate and unusual terms, as 100 years {Roioks v. Mason, 2 Brownl. 197), 81 years {Hemming v. Brahazon, Bridg. 7), may bring tbe land into mortmain and incur for- feiture. (See also Jesus Coll. v. Giihs, 1 Y. & C, Ex. 145.) One of its members can not become lessee to a corporation. [Salter v. Grosvenor, 8 Mod. 303.) Trustees for charitable uses may take leases of lands in England and "Wales. These must, in accordance with the Mortmain Acts (9 Greo. 2, c. 36 ; 9 Greo. 4, c. 85 ; 24 & 25 Vict. c. 9 ; 25 & 26 Yict. c. 17 ; 26 & 27 Vict. c. 106 ; 27 Viet. c. 13 ; 29 & 30 Vict. c. 57), be by deed sealed and delivered in presence of at least two credible wit- nesses {Wicliham v. Marquis of Bath, 35 L. J., Ch. 5), twelve calendar months before the lessor's death, and enrolled in Chancery within six calen- dar months after execution thereof. They must take eifect in possession within one year from the date (26 & 27 Vict. c. 106), without any power of revocation other than is specially permitted by the acts. A colourable lease, made in evasion of the Mortmain Acts, is void as against the heir of the lessor. {Boe v. Llo2jd, 5 Bing. N. C. 741.) Trustees of friendly societies are empowered, with the consent of a majority of the members, to take leases of buildings and land (not exceeding one acre in extent) in trust for the use of the society. (18 & 19 Vict. c. 63, s. 16.) Municipal corporations and commissioners ap- pointed for the purpose may, with the sanction of the vestry, take leases of baths and washhouses for the public use. (9 & 10 Vict. c. 74, s. 27.) Leases made to trustees of any society for reli- gious purposes, or for the promotion of education, Digitized by Microsoft® CAPACITY OF THE CONTRACTIXG PARTIES. 4/ art, literature, and science, of not more than two litemry, ana acres of land, for full rent or value, are exempt societies. from the Mortmain Acts. (31 & 32 Vict. c. 44, s. 1.) Trustees of bankrupts may not take leases of Trustees of the bankrupt's estate for their own benefit. {Ex '''"^'™^p'^- parte Bennett, 10 Ves. 381 ; Ex parte Badcock, M. & Mao. 231 ; Ex parte Wright, 2 Eose, 244.) If they do so they may be removed. {Ex parte Reynolds, 5 Ves. 707 ; Ex parte Alexander, 2 M. & A. 492.) But, acting for the benefit of the creditors generally, they may either take, or, with leave of the court, disclaim leaseholds vested in the bankrupt at the date of his bankruptcy (32 & 33 Vict. 0. 71, s. 23), including parol leases, leases from year to year, and agreements for leases. [Slack V. Sharpe, 8 A. & B. 366; Ex parte Hopton, 2 M., D. & D. 347 ; Ex parte Benecke, 2 M. & A. 700 ; Ex parte Lhjnvi Coal Co., L. E., 7 Ch. 28.) Upon electing to keep the lease, the trustee be- comes personally liable for the rent and covenants, whilst the act does not in express terms relieve the bankrupt lessee from future liability in respect of the lease, though his discharge under the bank- ruptcy will, it is assumed, do so. (See ss. 31, 49, and Ex parte Lhjnvi Coal Co., supra.) If the trustee disclaim, the lease reverts to the lessor, whose remedy is to prove for the difference be- tween the then letting value and the rent reserved in the lease, calctilated for the residue of the term. (Sect. 23.) Spiritual persons performing the duties of any Eociesias- ecclesiastical office may not take leases for oo- ^'^^^ cupation of more than eighty acres of farming land without the written permission of their bishop. (1 & 2 Vict. 0. 106, s. 28.) If they do, the lease is voidable. Digitized by Microsoft® 48 LAW OF LANDLORD AND TENANT. PM-ish Churoliwardeiis and overseers may take leases of houses and lands for parish purposes (59 Geo. 3, 0. 12, ss. 12, 17) ; and guardians of the poor, with the approval of the Poor Law Board, may take leases temporarily, or for not more than five years, of lands and buildings for the relief or employment- of the poor, and for their own use. (30 & 31 Vict. • c. 106, s. 13.) Digitized by Microsoft® ( 49 ) CHAPTEE III. WHAT MAY BE DEMISED. Almost every sort of tenements and heredita- ments, incorporeal as well as corporeal, advowsons (3 Dyer, 323), annuities (Oo. Lit. 1441)), corrodies (Bac. Ab. "Leases," (A), estovers {ib.), ferries {Bex V. Nicholson, 12 East, 330 ; Peter v. Kendal, 6 B. & C. 703), fisheries {Somerset v. Fogwell, 5 B. & C. 875), franchises {ib.), rights of common {Smey v. Brown; Latch, 99), rights of herbage {Tottel V. Koicel, Noy, 54), rights of way {New- march V. Brandling, 3 Swanst. 99 ; Osborn v. Wise, 7 0. & P. 761), tithes {Cox v. Brain, 3 Taunt. 95), tolls {Oldroyd v. Crampton, 4 Bing. N. C. 24 ; Bridgland v. Shapter, 5 M. & W. 375 ; Sarris v. Morrice, 10 M. & W. 260 ; Walker v. Richardson, 2 M. & W. 882), goods, furniture (Bac. Ab. " Leases," (A), sheep and other live animals {Spencer's case, 5 Co. 16 b), and almost all else, even offices of trust, save those connected with the public revenue and justice, may be let on lease for a term of years. But none of the properties enu- merated in the above formidable list fall properly within the scope of a work so elementary as the present, in which, as we have said, we propose to treat simply of the letting of lands, houses and other tenements. R.&L. Digitized by Microsoft® ( 50 ) CHAPTER IV. THE DEMISE — ITS REQUISITES AND NATURE. Leases and licences dis- tingmslied. Common law require- ments for Sect. 1. — Leases. It is desirable at the outset to distiaguisli between a lease and a licence. A lease or demise entitles the tenant to the exclusive possession, for some definite period, of the matter demised; but if a person is not to have the exclusive possession of, or sole dominion over the matter, then his limited right to use and enjoyment is a licence. Thus, where permission is given to a man to use a build- ing or a field for a given purpose, but the building or field remains under the control of the owner, a licence and not a lease is created. {Hancock v. Austin, 14 0. B., K S. 634; 32 L. J., 0. P. 252; Beg. V. Morrish, 32 L. J., M. 0. 245 ; Watkins v. Ch-avesend, L. E., 3 Q. B. 350 ; 37 L. J., M. C. 73; Roads v. Tnimpington, L. E., 6 Q,. B. 56; 40 L. J., M. 0. 35.) It is of some importance that this distinction should be borne in mind, since the relationship of landlord and tenant not being created, there is neither the right in the licensor to distrain [Hancock Y.Austin, supra), nor liability on the part of the licensee to pay rates as an occupier. {Reg. v. Morrish, supra.) No property in incorporeal property separate from corporeal could ever be passed except by deed ; and, therefore, a lease of such, — as, for ex- ample, of the right of hunting, shooting or fishing; Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 51 a rigM of way or passage for water ; a lease of tithes, or the like, — has necessarily been by deed to be valid. {Somerset v. Fogwell, 5 B. & C. 875 ; Bird T. Higginson, 2 A. & E. 696; 6 A. & B. 824; Gardiner v. Williamson, 2 B. & Ad. 336.) More- over, a corporation can only bind itself by a deed Tinder its common seal, and with that formality chIt grant leases. (Partridge v. Ball, 1 Ld. Eaym. 136; out see Ecclesiastical Commissioners v. Merral, L. P... 4 Ex. 162.) With these two exceptions, lisases were not required by the common law to be in Ti'Titiiis;. Sy the Statute of Frauds (29 Car. 2, o. 3), it is Alterations CTm.'-fceii, s. 1, that " all leases, estates, interests of of frauds! iarlioLi, or terms of years, or any uncertain in- isc-Tsfc of, in, to or out of any messuages, manors, jn'if,. tenements or hereditaments made or created *rjr IiiwHry and seisin only, or by parol, and not put in writnig by the parties so making or creating tliij same, or their agents thereunto lawfully autho- ifzei by writing, shall have the effect of leases or estates at will [but enlarged into a tenancy from rear to year by payment of rent ; ante, p. 5], any consideration for making any such parol leases or estates notwithstanding." But by sect. 2, leases not exceeding three years, whereupon the reserved rent amounts to two-thirds of the full improved value, are excepted. By the 8 & 9 Vict. c. 106, ^ *"'''='• s. 3, it is provided that " a lease required by law °' ' ^' ' to be in writing, of any tenements or heredita- ments made after the 1st of October, 1845, shall be void unless made by deed." As to corporeal property, therefore, it follows Leases ex- that aU leases for more than three years must be by fSeo y^ears deed ; but leases for three years from the making ^^ '^''^^■ thereof, and not from a future day {Ratvlins v. Turner, 1 Ld. Eaym. 736), or from a future day to a day not more distant than three years from E 2 Digitized by Microsoft® 52 LAW OF LANDLORD AND TENANT. Short leases under 8 cfe 9 Vict. c. 124. Essentials of lease. Date. tlie making {Ryley v. Hicks, 1 Stra. 651 ; Edge v. Strafford, 1 Tyr. 294), reserving a rent of not less than two-thirds the full annual value, may be made by a verbal letting or by writing not under seal. And a lease for less than three years does not require to be by deed by reason of its giving the tenant an option to prolong the tenancy for more than three years from the date of making the lease. {Hand v. Hall, 25 W. E. 734 ; L. E., 2 Ex. D. 355; 46 L. J., Ex. 603.) To facilitate and shorten leases the statute 8 & 9 Yiot. c. 124, was passed, giving a short form which may be adopted'if desired. The form is not very satisfactory and is seldom used. It is necessary that a lease should contaia (1) proper parties ; (2) words of present demise ; (3) a description of the premises to be demised ; (4) the commencement and duration of the term; and (5) the rent ; and, of course, when the term is more than three years, execution as a deed. An instrument containing these matters is a lease ( Wright v. Trezevant, Moo. & M. 231) ; it is im- material in what order they are placed, or in what language expressed. A lease not required to be by deed may even be constituted by the letters of the parties. {Chapman v. Bluck, 4 Bing. N. C. 187, 194.) When required to be by deed, it may either be by indenture or deed-poll. Though the above-mentioned matters are the essentials of a lease, the agreement of the parties often necessi- tates the insertion of other matters. It is there- fore proposed to consider in detail, not only the before-mentioned matters, but other points neces- sary to be borne in mind in the construction of A date is not necessary to a lease. "When by deed it takes eifect from the date of delivery. So that if there be no date, or an impossible one, as Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 53 the '30th of February, it takes its date and opera- tion from'.the day of delivery. {Styles v. Wardle, 4 B. & C. 908.) If the date be a sensible one, the delivery will be assumed to have been on that day, in the absence of proof to the contrary. But either party may give parol evidence that the date is false, and so give the lease operation from the delivery only. {Steele v. Mart, 4 B. & C. 272, post, p. 65.) The full christian and surnames of the parties. The pai-ties. with their residence and profession . or trade, are usually inserted ; but any description is sufficient which clearly distinguishes a party from all others. (Shep. Touch. 233.) It has been held that a party need not be otherwise named than by sign- ing and sealing the deed. {Nurse v. Frampton, 1 Ld. Eaym. 28.) When the lease is executed by the agent or attorney of the landlord, the landlord and not the agent must be named and described as the party to the deed. {Berkeley v. Eardy, 5 B. & 0. 355.) The usual words of demise are "demise" or words of "lease." But there is no magic in these parti- '^''™^''- cular words. Formerly nice questions arose as to whether an instrument was a lease or merely an agreement for a lease, the leaning of the courts being to construe every instrument which showed an intention that the relation of landlord and tenant should arise as an actual lease. Since the passing of 8 & 9 Vict. c. 106, requiring (sect. 3) leases for more than three years to be by deed, it has been the practice of the coiu-ts to regard in- struments which cannot operate as leases, although in terms present demises, as agreements for leases. {Parlter v. Taswell, 27 L. J., Ch. 812 ; Tidey v. Mollett, 16 0. B., N. S. 298; 33 L. J., 0. P. 235; Martin v. Smith, L. E., 9 Ex. 50; 43 L. J., Ex. 42.) Subject to this qualification, any words which are sufficiento,^^^|jgl^^„th^intention of 54 LAW OF LANDLORD AND TENANT. the parties that the one shall divest himself of possession, and the other come into it for a de- terminate time, whether such words run in the form of a licence, covenant, or agreement, are of themselves suificient, and will, in construc- tion of law, amount to a lease for years as effectually as if the most proper and pertinent words had been used. (Bac. Ah. "Lease" (K.) Thus the words, "A. doth let" {Harrington v. Wise, Cro. Eliz. 486) ; " A. agrees to let and B. to take" [Doe v. Ries, 8 Bing. 178; Poole v. Bent- Icy, 12 East, 168) ; " Tou shall have a lease of," &c. {Maiden's case, Cro. Eliz. 33) ; " A. agrees to pay to B. a certain rent for," &c. {Wright v. Trezevant, Moo. & M. 231) ; or a covenant that another shall have, hold, and enjoy {Tisdale v. Essex, Hob. 34; Drahe v. Munday, Cro. Car. 207), followed by the entry of the tenant, would amount to a lease. {Staniforth v. Fox, 7 Bing. 690 ; Doe V. Ashhurner, 5 T. E., 168; Hancock v. Caffyn, 8 Bing. 358; 1 Piatt on Leases, 579— 611.)" Instrument lu determining whether an instrument is a leasTof ^ lease or merely an agreement for a lease, the SrSSg'to coui-ts endeavour to give effect to the apparent the intent, intention of the parties {Morgan v. Bissell, 3 Taunt. 65) ; and while, on the one hand, the most informal words, showing that the parties have finally determined that one person is to give and the other to take possession, and the terms of his possession, will operate as a demise {Bicknell v. Hood, 6 M. & W. 104, per Parke, B.) ; yet, on the other hand, if the most proper words are made use of whereby to describe and pass a present lease for years, and upon the whole in- strument there appears no such intent, but that they are only preparatory and relative to a future lease to be made, the law will rather do violence to the words than break through the intent of the parties. (Bac. Ab. " Leases " (K.) However, a Digitized by Microsoft® THE DEMISE ITS REQUISITES AND NATURE. 55 mere agreement for or reference to a lease to be drawn up at some future time will not, in itself, reduce an instrument containing words of demise and the terms of the tenancy to an agreement. {Boe V. Groves, 15 Bast, 244 ; Baxter v. Browne, 2 W. Bl. 973 ; Warman v. FaithfiM, 5 B. & Ad. 1042; Chapman v. Bluclc, 4 Biiig. N. 0. 187.) But an express stipulation that the instrument shaU not operate as a lease will overrule words of demise (Perring v. Brook, 1 M. & Eob. 510) ; so wdl any clause which shows the parties do not intend to be placed in the position of landlord and tenant untH something further has been done, e. g., a clause that a third person shall ascertain the manner of working the products of a mine agreed to be let {Jones v. Reynolds, 1 Q. B. 506 ; 10 L. J., Q. B. 193), or that the tenancy shall commence on performance of a condition. [Boe V. Clark, 7 U. B. 211 ; 14 L. J., Q. B. 233.) Tor the reason above stated, however, questions of this description seldom occur now in practice. The lease should describe with reasonable cer- Description tainty the property demised, in order to avoid aemls^l. dispute afterwards. A demise of property is prima facie to be taken as including that, and that only, which answers the description at the date of the lease. {Kerslake v. White, 2 Stark. 508 ; Boe V. Burt, 1 T. E. 701 ; Kooystra v. Lucas, 5 B. & Aid. 830.) But it would include any portion of the property severed for a mere temporary pur- pose, as the doors or locks of a house ; it wordd include also, without specific mention, all rights and privileges necessary for its enjoyment. Any general description is sufficient which clearly ascertains what was intended to pass by the lease, e. g., " the farm called A ;" " the house being No. 185, Fleet Street ;" " the cottage at B. now in the occupation of C," or the like. And Digitized by Microsoft® 56 LAW OF LANDLORD AND TENANT. it may be shown by parol evidence wbat was and what was not intended to be included in a de- scription. {Goodtitle v. Southern, 1 M. & S. 299 ; Baird v. Fortune, 10 W. E. 2.) But however general a description may be, if all its terms fit some particular property, you must not construe it to take in. anythiag but that property. [Per Lord Selborne, Hardrdck v. Hardtcick, L. E., 16 Eq. 168 ; 42 L. J., Ch. 636.) Therefore a lease of " all mills, &c. iu the parish of A.," will not pass a mill at B., though both be under the same roof {Hall v. Combes^ Cro. Eliz. 368 ; Pedley v. Dodds, L. E., 2 Eq. 819), and a lease of a mes- suage and two-yard land in B. ia the possession of &. was held to pass only such of the two-yard land as was in the possession of G., although part not in his possession had from time out of mind been parcel of the two-yard land. {Bartlett v. Wright, Cro. Eliz. 299 ; Dyne v. Nutlcy, 14 C. B. 122 ; and see Webber v. Stanley, 33 L. J., C. P. 217 ; 16 C. B., N. _S. 698.) But if_ property be described as lying in A. and B., it is not neces- sary it should He in both ; it is sufficient if it lie in either. As to property described as "at or within" a certain place, " at " may be construed "near." {Homer v. Homer, L. E., 8 Ch. D. 768; 47 L. J., Ch. 635.) Where there was in a lease a precise description by metes and bounds and a plan of a house and premises, but a stable occupied with the house for many years previously was not included ia the metes and bounds or on the plan, it was held not to pass under the general words of "all stables to the said premises hereby demised, belonging or ap- pertaining" {Maitland v. Macldnnon, 32 L. J., Ex. 49) ; for it may be that something not within the boundary set out would pass if necessarily a part of the premises, as, for instance, a front Digitized by Microsoft® THE DEMISE ITS REQUISITES AND NATURE. 67 area ; but the stable could not pass on tbat prin- ciple, because, undoubtedly, it was not necessarilij a part of the dwelling-house and land as de- scribed. {Ibid., per Pollock, 0. B.) Where several means of identifying the pro- perty are used, and all the terms of description do not fit with accuracy any particular property, it becomes a question to what extent words of par- ticular explanation may qualify words of general description. "The rule," observes Parke, J., in Boe V. Galloway (5 B. & Ad. 51), " is clearly settled that, when there is a sufficient description set forth of premises by giving the particular name of a close or otherwise, we may reject a false demonstration ; but that, if premises be de- scribed ia general terms and a particular descrip- tion be added, the latter controls the former." It matters not, however, which description is placed fijst, and which last, in the sentence (Tay- lor, Evidence, s. 1104) ; for the whole facts must be considered to see which was the leading and which the subordinate description. [Sarchcick V. Hardicick, supra.) Thus in a demise of the meadow called B., described as containing ten acres, but in truth containing 20 acres, the whole 20 acres wiU be included. (Shep. Touch. 248.) So, in a lease of all that part of the park called B., situate and being in the county of 0., lying within certain specified abuttals, with all houses, &c. thereto belonging, and now in the occupation of S., the reference to the occupancy of S. was rejected in favour of a house answering the rest of the description. {Boe v. Galloway, supra.) In like manner in a lease of "the Trogues farm, now in the occupation of G.," the reference to the oc- cupation of C. was rejected. {Goodtitle v. Southern, 1 M. & S. 299 ; Morrell v. Fisher, 19 L. J., Ex. 273 ; 4 Ex. 591 ; Griffithes v. Penson, 11 W. E. Digitized by Microsoft® 58 LAW OF LANDLOED AND TENANT. 313 ; and see Hardwick v. Hardioick, supra ; Whit- field V. Langdale, 45 L. J., Ch. 177 ; L. E., 1 Ch. D. 61 ; Travers v. Blundell, 36 L. T. 341.) So it is said, if a landlord having but one house in a street, were to_ describe it in. the lease by a ■wrong number, and then let a tenant into pos- session under it, the number would be rejected as an immaterial part of the description. {Hutchins V. Scott, 2 M. & W. 816, per Lord Abinger, C. B.) When a plan is used it should be perfectly correct; for unless its effect be restrained by express provision in the deed, it will probably control any description contained in the body of the lease. {Llewellyn v. Earl of Jersey, 11 M. & W. 183; Barton v. Baives, 10 C. B. 261; 19 L. J., C. P. 302; Lyle v. Richards, 35 L. J., Q. B. 214; Bavis V. Shepherd, L. E., 1 Ch. 410; 35 L. J., Ch. 581 ; Manning v. Fitzgerald, 29 L. J., Ex. 24.) When the property is described, and professedly demised, by an admeasurement, followed by the words "more or less" {Bay v. Fxjnn, Owen, 133; Neale v. Parkin, 1 Esp. 229), or "thereabouts" {Bavis V. Shepherd, supira), or similar terms, they must be taken to be confined to a reasonable dif- ference in quantity from that stated. And if let at a specified rental per acre, the admeasurement would, it seems, have to include all comprised in the lease, not excepting the half of a public high- way, brook, or draia forming the boundary of the property. (See Be Popyple and Barratt's Contract, 25 W. E. 248.) There are some words of description which signify more than at first sight they seem to import. Thus " farm " includes the farm-house and all the land used therewith (Co. Litt. 5 a) ; " messuage " includes a dwelling-house, with orchard, garden and curtilage, or land attached Digitized by Microsoft® THE DEMISE ITS REQUISITES AND NATURE. 59 {Smith V. Martin, 2 Saund. 400) ; " house " has a like significance {lb.; Cole v. West London and Crystal Palace Rail. Co., 28 L. J., Oh. 767) ; and " mill " includes everjrthing belonging to the mill. {Thorpe v. Milligan, 5 W. E. 336.) "Land" includes not only the land, but houses and every- thing growing on or attached to the land. (Oo. Litt. 4 a.) " Water " does not extend to land ■under it, though " pool " does. (Ad. Eject. 19.) The proper description of a piece of water is " land covered with water." {Challenor v. Thomas, Yelv. 143; 2 Bl. Com. 18.) A demise of the " issues and profits " of land is the same as the demise of the land itself. {Parker V. Plummer, Cro. Eliz. 190.) A grant of the pastui'e of land wUl be taken as a grant not only of the feeding on the land, but the land itself; and so the grant of a wood will pass the soil as well as the timber. (Co. Litt. 4 b.) In informal leases a vague description is often attempted to be eked out by such words as " with all appertaining thereto," or "thereunto belonging;" and inasmuch as the parcels to be included depend upon the intention of the parties, these words will generally be construed as " usually occupied with," or " lying to." {Ilill v. Graunge, 1 Plowd. 170 ; Ongley v. Chambers, 1 Bing. 496.) But in a recent case, on an agreement for a lease of a furnished house " and premises, with gardens, pleasure grounds, coach-house and stabhng thereto belong- ing," it was held that a meadow adjoitiing the said premises did not pass, and that evidence to show that it was the intention of the parties that the meadow should pass was not admissible. {Minton V. Geiger, 28 L. T., N. S. 449.) When general words are intended to be relied upon, they should be such as "and all the premises usually or at any time heretofore demised, occupied, held or Digitized by Microsoft® 60 LAW OF LANDLORD AKD TENANT. " Appur- tenances," signification of. Implied easements over adjoin- ing pro- perty. Eights of tenant in respect of lights. enjoyed witli the same or any part thereof." (See Eay V. Oxley, L. E., 10 Q. B. 360 ; 44 L. J., Q. B. 210.) It is said that " appurtenances " has a very com- prehensive signification (2 Piatt on Leases, 33) ; but it seems very doubtful vs'hether under that term anything will pass that would not pass without it by operation of law, as part of the property demised. {Watts v. Kebon, L. E., 6 Ch. 174; 40 L. J., Oh. 126; PoMen v. Bastard, L. E., 1 Q. B. 156; 35 L. J., Q. B. 92; Worthington v. Qimson, 29 L. J., a B. 116.) Questions sometimes arise, where the lessor is the owner of property adjoining that demised, as to what easements over the property retained pass by implication of law under the demise. It seems that there will pass without mention all easements necessary for the beneficial enjoyment of the pro- perty demised and aU. such easements as are con- tiduous and apparent (see Watts v. Kelson, supra), but restricted in duration to the period for which the lessor had power to grant at the date of the lease. {Booth v. Alcocl;, 42 L. J., Oh. 557 ; L. E., 8 Oh. 663.) It is a rule of law that a grantor shall not derogate from his grant ; and therefore in the absence of any express provision upon the point, if a man, possessed of a piece of land and a house adjoining, sell the house, retaining the land, he may not by any new or altered erections interfere with the lights of the sold property existing at the time of sale. {Sicanshoroitgh v. Coventry, 9 Bing. 305 ; Robinson v. Grave, 21 W. E. 569.) If on the other hand he sell the land, retaining the house, the purchaser may put up what erections he please, although by so doing he stop up the ancient lights of the vendor. {Ellis v. Manchester Carriarje Co., L. E., 2 0. P. D. 13 ; 25 W. E. 229 ; Digitized by Microsoft® THK DEMISE — ITS EEQUISITES AND NATURE. 61 Curriers' Co. v. Corhett, 2 Dr. & Sm. 360.) In either case a subsequent purchaser from, or other person claiming under, the vendor, is in the same position as himself. A lease is a sale pro tanto {Shepheardy. Beetham, 46 L. J., Oh. 763; 25 W. E. 764), and therefore the same principles apply in the letting as upon the sale of two adjoining pre- mises, the lessee prior in date having the same rights as a purchaser prior in date. Thus a lessor having granted a lease to A., neither he nor his subsequent lessee of adjoining premises could by alteration obstruct the lights existing at the time of demise. {Reviere v. Boicer, E,y. & M. 24; Coiitts V. Qerrham, Moo. & M. 396.) On the other hand, the first lessee would be entitled to make altera- tions in his premises notwithstanding by so doing he interfered with the lights of adjoining premises subsequently let to another tenant. {Warner v. McBryde, 36 L. T. 360; and see Master v. Hansard, 46 L. J., Oh. 505; L. E., 4 Oh. D. 718.) A demise is often made subject to certain ex- Exceptions ,. T j_' ■ _p _e J.1 1 1 and reser- ceptions and reservations m favour ot the land- vationa. lord. An exception is a restriction by which the landlord retains to himself a part of the parcels which would otherwise pass to the tenant under the general terms of the description ; a reservation is a creation in the landlord's favour of something not part of the parcels, but issuing out of them, as a rent or services. The most important essentials of an exception are that it should be in favour of the landlord, and not of a stranger ; that it should be part only of the property, and not the greater part, and that it should be of a particular thing out of property comprised in general words or under a general denomination, and must not be of any of the matters which have in express terms been de- Digitized by Microsoft® 62 LAW OF LANDLORD AND TENANT. mised. Therefore, in a demise of a house and shops, excepting the shops; or of certain tenements, excepting a moiety; or of twenty acres of land exceptiag ten acres ; in each case the exception is had. And though parcels are granted ia general terms, an exception which tends to frustrate the grant cannot be maintained. (3 Piatt on Leases, 37.) The most usual exceptions are of woods, timber trees, mines and minerals. The rule of construction as to what is included in an exception is the same as in that of the thing demised; and, therefore, an exception of "all woods" includes the soil intervening between the trees {Ive v. 8mns, Oro. Eliz. 521 ; Whistler v. Pashtv, Cro. Jao. 487 ; 5 Dav. Conv. 225) ; so of "all underwoods" {Legh v. Seald, 1 B. & Ad. 622) ; but by an exception of " timber trees," nothing but the soil they occupy will be included. ( Whistler v. Paslow, supra; Co. Litt. 4 B.) "Wood and underwood" does not include fruit trees (Wyndham v. Way, 4 Taunt. 316) ; and "timber trees and other trees, but not the annual fruit thereof," does not include apple trees. [Bullen v. Denning, 5 B. & 0. 842.) An exception of "mines and minerals" includes every substance which can be got from underneath the surface of the earth for the purpose of profit, unless there be something in the context or the nature of the transaction to induce the court to give it a more limited meaning {Hext V. QUI, L. E., 7 Ch. 699 ; 41 L. J., Ch. 761), that is, everything except the mere surface which is used for agricultural purposes. {Midland Bail. Co. V. Checldey, L. E., 4 Eq. 19.) When anything is excepted, all things depend- ing on it and necessary for the obtaining it are excepted also; as, for example, the right to go on the land to cut the trees excepted, or to sink Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 63 shafts to get tlie minerals. (Shep. Touoli. 100 ; Cardigan v. Armitage, 2 B. & C 207 ; Proud v. Sates, 34 L. J., Oh. 406.) Exceptions, so called, but not satisfying the strict requirements of an exception, are sometimes supported upon the equitable ground of giving effect to the intention of the parties. Thus, where there was an agreement to let a farm, except thirty-seven acres, not specifying which, and the tenant took possession, but before the lease was granted, disputes arose respecting the land to be excepted, it was held a good exception, and that as the lease had not been executed, the landlord had the right to select, but that if it had been executed, the tenant would have had the right to select the land to be excepted. (Jenkins v. Green, 27 Beav. 437 ; 28 L. J., Ch. 817 ; but see Pearce v. Watts, 23 W. E. 771.) The terms "reservation" and "exception" are often used in respect of that which is neither. This frequently occurs in respect of rights of way and other easements, and rights of shooting, fishing and other privileges. When the landlord purports to "except" or "reserve" to himself an easement, it is in fact a re-grant from the tenant of such easement. {Durham Rail. Co. v. Walker, 2 Q,. B. 940; 11 L. J., Ex. 442..) And so the "reservation" to the landlord of the right of sporting, hunting, fowling or fishing is a re-grant by the tenant of a privilege in the nature of a profit a j;>rendre. ( Wickham v. Saioker, 7 M. & "W. 63 ; Doe v. Lock, 2 A. & E. 743 ; Bird v. Eigginson, 6 A. & E. 824 ; Ewart V. Graham, 29 L. J., Ex. 88; Rogers v. St. Germans Union, 35 L. T. 332.) As these grants can only be effectual when by deed, a "reservation" of an easement or of the right of sporting must be in a lease under seal which is executed by the tenant. {Durham Rail. Co. v. Digitized by Microsoft® 64 LAW OF LANDLOED AND TENANT. Parol reser- vation of game. The haben- dum. Leases com- mence from a present, future, or Ijast date. Walker, supra.) Provided, however, the lease be ty deed and executed by the tenant, it is imma- terial that what is a re-grant is called an exception or a reservation. [Qraham v. Eicart, 11 Ex. 326 ; 25 L. J., Ex. 42.) It seems that for the purposes of the Grame Act (1 & 2 Will. 4, 0. 32), there may, in a parol demise, be a parol "reservation" of the game. {Eeg. V. Thurlstone, 28 L. J., M. 0. 106 ; Jones V. Williams, 46 L. J., M. C. 270; 36 L. T. 559 ; Coleman v. Bathurst, L. E., 6 Q.. B. 366 ; 40 L. J., M. C. 131.) An agreement by the tenant not to destroy but to preserve game, does not operate either way, and the right of sporting remains during the tenancy ia abeyance. [Cole- man V. Bathurst, supra.) A lease must show ■with certainty the com- mencement and duration of the term. This is done in formal leases by the habendum. Leases may be made to commence either pre- sently or at a future date, as at Michaelmas next or ten years after, or after the death of A. B. The date from which to compute the term may be a past day, as in a lease dated the 19th of July, 1851, " to hold from the 25th of December, 1849, for the term of fourteen years," the term runs from the latter date [Bird v. Baker, 28 L. J., Q. B. 7 ; 1 E. & E. 12) ; and it is only the same as saying that it is a term for so much as is now to come of a period of foiirteen years from the 25th of De- cember, 1849. [Cooper v. Robinson, 10 M. & W. 694.) But as this is only a method of estimating the duration of the term, no interest passes under it untU, and then only from, the date of the lease; nor is the tenant liable in respect of breaches of covenant before that date. [Shaio v. -ffay, 1 Ex. 412 ; 17 L. J., Ex. 17 ; Jerms v. Tomhinson, 26 L. J., Ex. 41.) Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 65 If the date of commencement be named either Meaning ot in terms or by reference to the date of the instru- givmaate. ment, and that is a sensible date, it will commence accordiagly. A lease "from" a given date, as "from the 25th of March," or "from the date hereof," is generally considered exclusive of the day mentioned (Co. Litt. 46 b; Acldand y. Lutleij, 9 A. & E. 879 ; Wilkinson v. Gaston, 9 Q. B. 137; Isaacs V. Royal Insurance Co., 39 L. J., Ex. 189), though it may be construed either as exclusive or inclusive, according to the context and apparent intention of the parties. {Pugh v. Buke of Leeds, Cowp. 714 ) The words " from the day of the date" and "from henceforth" mean the same thing. {Llen-chjn v. Williams, Cro. Jac. 258.) If no date is named for the commencement, and commencc- the lease is by deed, its commencement dates from date, in case the delivery of the deed. (Co. Litt. 46 b; ante, f,„l,^l^' p. 52.) And so if the lease is to hold " from the ^''<"-y- malting hereof," or " from henceforth," or from any date to be ascertained by relation to the time when the lease is to commence to operate, in each case the reference must be taken to be to the delivery ; for a deed has no operation until delivery. (Co. Litt. 46 b.) Thus, where a lease was dated the 25th day of March, 1783, but was not executed imtil some time after, and the habendum was "from the 25th of March now last past," this was held to mean the 25th of March (1783) preceding the execution, and not the one (1782) preceding the date of the lease. (Steele v. Mart, 4 B. & C. 279.) Where a deed has no date, or an impossible date, a lease from the date shall begia from the delivery; but if the lease have a sensible date, the word "date" means the actual date of the lease, and not of the delivery. {8tt/les v. Wardle, 4 B. & C. 908; Doe d. Ulph, 13 Q. B. 204; ante, p. 53.) If no date is mentioned, and the letting is not in case of a ' ^ parol letting K. & L, F from entry. Digitized by Microsoft® 66 LAW OF LANDLORB AND TENANT. by deed, the tenancy ■will commence from the day of entry. {Kemp v. Berrett, 3 Camp. 510 ; Doe v. Mattheios, 11 C. B. 675.) But where a tenant, having entered in the middle of a quarter, paid rent for that half quarter on the next quartet day, and from that time paid rent from quarter to quarter, it was held that his tenancy commenced on the quarter day succeeding his entry. {Doe v. Stapleton, 3 C. & P. 275; Doe v. Johnson, 6 Esp. 10; Doe r. Grafton, 18 Q. B. 496.) And where an agreement for a tenancy was dated the 20th of December (on which day the tenant entered), and ' the rent was only reserved from Christmas-day, — that is, the first payment was to be made on the 25th of March, — it was held that the tenancy commenced at Christmas. {Sandill v. Franklin, L. R., 10 C. P. 377; 44 L. J., C. P. 216.) It is said that a lease from a date which is not impossible biit is uncertain is bad, — thus, from the 20th day of November, not saying in what year. {Anon., 1 Mod. 180.) But it is submitted that this would not be so held now, but that ac- cording as it was a lease or an agreement' for a lease, the tenant or landlord might elect which was to be the year referred to. {Anon., Leon. 227 ; Jenkins v. Green, 28 L. J., Ch. 817.) The day of commencement need not be ex- pressly stated; it may be fixed by reference to a contingency which must happen, though the time of happening is uncertain. Duration of The duration of the term must be rendered cer- beTse™"* tain, either by express limitation or by reference to some collateral date, which may with equal cer- tainty measure the continuance of it, otherwise it is void. (Bac. Ab. " Leases " (L. 3.) Thus, where B. agreed to take certain premises, paying sums vary- ing in amount up to a certain date, and after that date a rent of 9/. until the lease, and no mention Digitized by Microsoft® tained. THE DEMISE — ITS REQUISITES AND NATURE. 67 was made of the period of duration of the lease, it was held a good demise up to the time previous to the commencement of the rent of 9/. {Gwynne V. Mainstone, 3 C. & P. 302.) A lease to one during the minority of J. S. is good, and if J. S. die before majority the lease is determined. And equally good is a lease for twenty-one years, if the coverture between A. and B. shall so long con- tinue, or if J. S. shaU. so long continue parson of Dale. (Bac. Ab. "Leases" (L..3.) If a man make a lease for so many years as A. shall live, no cer- tain number beiag named, the lease as for a term will be void. (Shep. Touch. 275.) A lease to two for years, if they so long live, will determine by the death of one of them, but not if the contin- gency be, if they or either of them so long live. {Daniel v. Waddington, 1 Roll. E. 309 ; Vaux^ cases, Oro. Eliz. 269.) A lease for years, not saying how many, is a lease for two years ; because for more there is no cer- tainty ; for less no sense in the words. (Bac. Ab. "Leases" (L. 3.) A demise for one year, and so on from year to year, is a lease for two years certain. {Doe v. Green, 9 A. & E. 658.) Where A. who was lessee of a shop for a term, of which ten years was unexpired, agreed to let it to B. at a specified rental, and further agreed not to give B. notice so long as he continued to pay the rent when due, it was held that B. was not merely yearly tenant, but that he had a right to remain in possession upon paying the rent for the unex- pired residue of the term. {Ee King's Leasehold, 21 W. R. 881; L. E., 16 Eq. 521; Kitsely. Watson, 26 W. E. 653, varied on app., 23 Sol. Jour. 382 ; but see Woodv. Beard, 46 L. J., Q.B. 100; L. E., 2 Ex. D. 30 ; and, qucere what construction would have been adopted if the landlord owned the fee.) A lease for a given period, determinable earlier option to o determine ■ ■ Digitizeaby Microsoft® 68 LAW OF LANDLORD AND TENANT. at end of a at the Option of the parties, e.ff.,a. lease for twenty- tom!"'° one years, determinable at the end of seven or fourteen years, is good. Where the option is given to each party, either or his representatives may determine it at one of the stated periods. {Goodright v. Mark, 4 M. & S. 30 ; Roe v. Eay- ley, 12 East, 464 ; Bird v. Baker, 1 E. & B. 12.) If the lease be silent as to who is to have the option, the lessee alone has it {Bann v. Spurrier, 3 B. & P. 399 ; Price v. Bijer, 17 Ves. 356 ; Boe v. Bixon, 9 East, 15) ; and this, notwithstanding the lessor supposed he had the same option. [PoicellY. Smith, L. E/., 14 Eq. 85.) But a lease for twenty-one years, "determinable nevertheless in seven or four- teen years, if the parties shall so thiak fit," is de- terminable only by both. {Fowell v. Franter, 3 H. & C. 458 ; 34 L. J., Ex. 6.) The redden- The lease should define the amount of rent to '™' be paid, to whom, at what time, and how. This, in formal leases, is by the reddendum commencing, " yieldiag and paying." Eent de- A rent is a certain profit issuing yearly out of ^^ ' lands and tenements corporeal. (Co. Litt. 144.) Though usually so, it is not necessarily, money ; but it cannot be part of the profits of the demised Necessary premises, as the herbage or vesture. It must be incidents of ^ , • i i £ i. • j j j. • rent. certam, or capable oi bemg rendered certain, so that rent after the rate of 18/. per annum was held void. {Parker v. BCarris, 1 Salk. 262.) It is suffi- cient, however, if the amount, though not fixed in the reservation, is ascertainable by it. Thus, where a tenant agreed to pay so much a quarter for every yard of marl he might get, and an additional sum for every thousand bricks he might make, this was held to be sufficiently certain. {Baniel v. Oracle, 6 Q. B. 145.) It must be reserved out of some- thing to which the lessor can have recourse to distrain. Therefore it cannot be reserved out of Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. '69 incorporeal hereditaments [Biiszard v. Capel, 8 B. & C. 141) ; but a grant of rent in respect of things incorporeal may operate as a personal contract, and so bind the grantor. (Co. Litt. 47 a.) The rent should be reserved to the lessor, and not to a third party. Where the lessor is the owner of the fee, the reservation ought to be to himself, his heirs and assigns, and not to his heirs, exe- cutors, administrators and assigns; but it wiU -nevertheless go to his heirs, because it foUows the .reversion. (Co. Litt. 47 a.) If rent be reserved generally by the lessor, without saying to whom, it win follow the nature of the lessor's interest, and, if he have an estate of freehold, wUl, after his death, go to the heir ; if he have only a chattel interest, to the executor or administrator. ( Whit- lock's case, 8 Co. 71; Sacheverel v. Frogate, 1 Yent. 161.) By the consent and to efEect intention of the Covenant J . T Hi- I ' defined. parties leases usually contain covenants, provisoes and conditions. These vary with the nature of the property and its locality, and very often follow a common form in use by the landlord. A cove- nant is merely a promise or agreement by deed. No precise form of words is necessary to constitute it. (Piatt on Covenants, 28.) It may be inserted in any part of the deed, and may be either an express covenant or in the form of a condition, a proviso, an exception, or even a recital. {Rigby V. Great Western Rail. Co., 14 M. & W. 811; Sampson v. Easterly, 9 B. & C. 512 ; Saltoun v. Houston, 1 Bing. 433 ; Carr v. Roberts, 5 B. & Ad. 78; Brookes v. Drysdale, L. E., 3 C. P. D. 52; 26 W. E. 331.) If it clearly appear that it was the intention of the party to bind himself for the performance, it will be construed as a covenant. {lb.; Knight v. Gravesend Waterworks Co., 2 H. & N. 6 ; 27 L. J., Ex. 73.) Thus, where a lessee Digitized by Microsoft® 70 LAW OF LANDLORD AND TENANT. covenanted that he •would at all times plough, so"w, manure, and cultivate the demised premises, except the rabbit-warren and sheep-walk, this was held a covenant not to plough the rabbit-warren and sheep-walk. {St. Alhans v. Ellis, 16 East, 352.) But it must be clear that the words are intended to operate as an agreement, for a mere proviso at the end of a covenant by the one party will not be construed as a covenant by the other party. (Treloar v. Bigge, 43 L. J., Ex. 95; L. E., 9 Ex. 151 ; Smith v. Mayor, of Harwich, 2 0. B., N. S. 651; 26L. J., C. P. 257.) wiat cove- Covenants are either express or implied. If a impiiea? lease contains no express covenants, the law im- plies what are termed "usual" covenants. These are (1) to pay rent; (2) to pay taxes (except landlord's taxes) ; (3) to keep and deliver up premises in repair; (4) to cultivate land in ac- cordance with good husbandry ; (5) to permit the landlord to enter and view the state of repairs; and (6) for quiet enjoyment until default. (See 2 Piatt on Leases, 155 — 162; infra, Sect. 2.) An express covenant qualifies the generality of an implied one. Thus, an implied covenant for quiet enjoyment will be restrained by an express covenant for. quiet enjoyment. {Merrill v. Frame, 4 Taunt. 329 ; Li^ie v. Stephenson, 4 Bing. N. C. 678.) Every covenant is to be expounded with regard to its context, and such exposition must be upon the whole instrument, ex antecedentihus et consequentibws, and according to the reasonable sense and construction of the words. {Iggulden v. Maij, 7 East, 241.) Provided they are not illegal or impossible, the parties may attach such conditions as they deem fit to a demise, and secure the observance of those conditions by covenants. {Jones v. Jones, 12 Ves. 189.) The rights and duties of the parties under Digitized by Microsoft® THE DEMISE ITS KEQUISITES AND NATURE. 71 covenants will be dealt -with in the subsequent parts of the work relating to those matters which the covenants affect. To make an instrument of demise a deed, it P^i^'^'^ must be sealed and delivered by the lessor and be sealed the lessee ; but according to the balance of autho- Tered.^"^' rity, the first section of the Statute of Frauds, requiring leases to be signed, does not apply to leases by deed. [Cooch v. Goodman, 2 Q. B. 580 ; Aveline v. Whisson, 4 M. & Grr. 801 ; and see Cherry v. Kerning, 4 Ex. 631.) It is not necessary to constitute sealing that there should be either wax or wafer, or any actual impression ; the deed may be sealed by using a bit of paper, or by the end of a ruler, without making any impression or mark. And where an instrument is in the form of a deed, and on proper stamps, and it is stated in the attestation to have been sealed and delivered in the presence of the witnesses, it will, in the absence of proof to the contrary, be presumed to have been sealed, though no impression appear. {Re Mayer, 40 L. J., C. P. 201 ; S. C, sul nom. Re Sandihnds, L. E., 6 C. P. 411 ; Sug. Powers, 232, 8th ed.) In modern practice the kind of seal made use of is not regarded ; and the mere placing the finger on a seal already made is equivalent to sealing (Shep. Touch. 57) ; and the words " I de- liver this as my act and deed," which are spoken at the same time, are regarded as equivalent to deKvery, even if the party keep the deed himself. {Doe V. Knight, 5 B. & C. 671 ; Xenos v. Wickkam, L. E., 2 H. L. 296 ; 36 L. J., C. P. 313.) Where a delivery is conditional, and only to take effect upon the happening of some event, or the perform- ance of some act, it is a mere escrow ; but on the performance of the condition it takes effect as a deed. (Co.,Litt. 36 a.) Possession by a party of a deed executed to him is ]jriina facie evidence Digitized by Microsoft® 72 lAW OF LANDLORD AND TENANT. teseeution by attorney. Effect of non-execu- tion of lease by lessor. Non-exe- cution by of its having been delivered to Mm as a deed. {Hare v. Sorton, 5 B. & Ad. 715.) A lease executed by an attorney must be in tbe name of the principal, and not of the attorney. {Frontin v. Small, 2 Ld. Eaym. 1418; Berkeley V. Hard^, 5 B. & 0. 355.) The correct form wotdd be, " In witness whereof A. B. by C D., his attorney, has hereunto set his hand and seal." But it does not matter in what form of words the execution may be if in the name of the principal ; thus, " for J. B. (the principal), M. W. (the attor- ney)," was held suiScient. ( Wilks v. Back, 2 East, 142.) The attorney must have an authority in writing, and when the lease is by deed the autho- rity must be under seal. (Co. Litt. 486 ; Berkeley V. Hardy, siqwa.) An instrument which is not executed by the lessor is no lease. {Soprani v. Skurro, Yelv. 19 ; Doe V. Wiggins, 4 Q. B. 367.) If there are two or more lessors, they should all execute, for no more than the shares of those who do will pass. (Co. Litt. 192 a.) And though in an ordinary indenture a covenantee may sue the covenantor, although the former has not executed the deed {Morgan v. Pike, 14 C. B. 473), yet in the case of a lease not executed by the lessor, the covenants on the part of the lessee will not be bindiiig upon him, though he has executed it {Swatman v. Amhler, 8 Ex. 72 ; 22 L. J., Ex. 81 ; Pitman v. Woodhmj, 3 Ex. 4), unless perhaps in the event of his being allowed to enjoy during the whole contemplated term. {Cooch v. Goodman, 2 Q,. B. 580.) But the lease would regulate the holding as a tenancy from year to year. (See Bolton v. Tomlin, 5 A. & B. 856.) If a lessee has neither sealed and delivered the indenture of lease, nor entered and taken posses- sion, he cannot be made responsible upon the Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 73 covenants; but if he enters and takes possession by force of the lease he is deemed to have cove- nanted to hold upon the terms of the indenture, and to observe the conditions of the lease. {Brett V. Cumberland, Cro. Jac. 521 ; Mayor, ^c. of Lyme V. Henley, 1 Bing. N. C. 237.) An indorsement upon a deed wiU, in the absence inflorse- of proof, be presumed to have been made before ™™ the execution of the deed, and so to be parcel of it. {Brewster v. Kidgell, Garth. 438; Flint v. Brandon, 1 B. & P. N. R. 73.) And if made after the signing of the deed, but before delivery, it will be taken as part of the deed. {Lyhiirn v. Warrington, 1 Stark. 162.) As a deed can only be varied by an instrument vmaUons of as high a nature as itself, after it is once de- aiease!^ livered, any variation of its terms or additions thereto, by indorsement or otherwise, must be by a fresh deed duly stamped {West v. Blakeicay, 2 M. & Gr. 751; Roe v. Harrison, 2 T. R. 425; Cordwcnt v. Hunt, 8 Taunt. 596) ; and in such case the alterations will be taken as a new lease incorporating such of the terms of the old lease as are not expressly varied. (See Doe v. Geekie, 5 a B. 841.) If in a lease there is a discrepancy between the Mistake. habendum and the reddendum, the habendum will prevail. If the lease and the counterpart differ, the lease overrides the counterpart. (Shep. Touch. 52, 53.) But the first rule does not apply where it appears upon the face of the lease, con- strued with the counterpart, that the habendum is wrong ; and the second rule does not apply where the lease is inconsistent with itself, and the coiln- terpart is consistent throughout. {Burchell v. Clark, 46 L. J., C. P. 115 ; L. R., 2 0. P. D. 88 ; 25 W. R. 334.) Therefore, where the term men- tioned in the reddendum of a lease differed from Digitized by Microsoft® the lessee. 74 LAW OF LANDLORD AND TENANT. that stated in the habendum, but the counterpart throughout stated the term as in the reddendum, the habendum was corrected so as to agree with the reddendum. (lb.) "Where a lessor by mis- take inserted in the draft lease a less sum for the rent than that agreed upon, and it was in that form engrossed and executed, it was held that the lessee was entitled to retain or reject the lease, but, if retained, it must be reformed by the inser- tion of the higher rent agreed upon. [Garrard v. Frankel, 31 L. J., Ch. 604 ; 30 Beav. 445 ; and see Mackenzie v. Mesketh, L. E., 7 Ch. D. 675 ; 26 W. E. 189.) smetiesfor Very often the payment of rent and the per- "" formance of the lessee's covenants or stipulations are secured by sureties, either by a bond [Holme V. BrunsUU, 47 L. J., C. P. 81, 610 ; L. E., 3 Q. B. D. 495), by a separate guarantee [Tayleur y. WiUin, 37 L. J., Ex. 173 ; L. E., 3 Ex. 303), or more frequently by their joining in the. lease. {Toler V. Slater, 37 L. J., Q. B. 33 ; L. E., 3. Q. B. 42.) However created, the liability of the surety will be strictly construed [Whitcher y. Hall, 5 B. & 0. 269), and wiU not make him liable beyond the original tenancy, when a new tenancy is created by waiver of a notice to quit. [Tayleur v. Wilclin, supra.) The surety will also be discharged by any new arrangement between the landlord and tenant, not assented to by the surety, varying the original agreement, unless it is self-evident that the alteration cannot prejudice the surety. [Holme v. Brunskill, supra.) If a demise is to two persons jointly, evidence is not admissible of intention that one only should be tenant, and the other a surety. In some cases leases of property in Middlesex and Yorkshire require to be registered. By 7 Anne, c. 20, as regards Middlesex ; by 2 & 3 Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 75 Anne, e. 4, and 5 Anne, c. 18, as regards the West Eiding of Yorkshire ; by 6 Anne, c. 35, as regards the East Eiding and Kingston-upon- Hull, by 8 Geo. 2, c. 6, as regards the North Eiding (and as to all, see 37 & 38 Yict. c. 78), a memorial of all deeds and conveyances, and of all ■wills and devises in writing, concerning and whereby any hereditaments may be in any way affected in law or equity, shall be adjudged fraudulent and void against any subsequent pur- chaser or mortgagee for valuable consideration, imless such memorial thereof be registered, as by the act is directed, before the registering of the memorial of the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. The acts (except the "West Eiding Act) do not extend to any copyhold estates, leases at rack rent or for a term not exceeding twenty-one years, when the actual possession and occupation go with the lease, or to any chambers in Ser- jeant's Inn or the Inns of Court or Chancery in Middlesex. It is, however, considered advisable, though not clearly necessary, to register leases of copyholds where leases of freeholds would be registered, the leases being a common law in- terest. (Sug. V. & P. 732, 14th ed.) Although Serjeant's Inn is within the city of London, it is considered that the exception of it from the operation of the act was an error, and does not imply that assurances within the city must gene- rally be registered, and this understanding is usually acted upon in practice. {Ibid.) Eegis- tering an assignment is not registering the lease. {Honeycomb v. Waldron, 2 Stra. 1064 ; Howe v. £renton, 8 B. & C. 755.) By 15 Car. 2, c. 17, leases in the Bedford Level, " except leases for seven years or under, in possession," must be registered. Digitized by Microsoft® 76 LAW OF LANDLORD AND TENANT. s8&89Viot. By 38 & 39 Yict. c. 87, s. 11, registration is ' ^' ■ extended to leaseholds in whatever part of Eng- land situated. But the registration is optional, and is only possible where the lease is for a life or lives, or determiaable on a life or Kves, or for a term of years of which more than twenty-one years are unexpired, and the lease must not con- tain an absolute prohibition against alienation. And it is provided by s. 127, that lands within the jurisdiction of the before-mentioned local regis- tries (other than the Bedford Level), if registered under that act, shall, from the date of registra- tion, be exempt from the jurisdiction of such local registries. ?ase and °^ ^^ ^^^ absenco of oxprcss stipulation, a lease is counterpart, always prepared by the solicitor of the lessor at the expense of the lessee. The expense of the counterpart is borne by the lessor. (2 Piatt on Leases, 539.) The lessor cannot insist on the counterpart being executed in the presence of himself or his agent. {Borradaile v. Bmart, 5 W. E._270.) c^to'Jyo* During the continuance of the demise, the tenant is entitled to the custody of the lease, and he continues so entitled even after the term created has expired, whether by effluxion of time or forfeiture. {Sail v. Ball, 10 L. J., C. P. 285 ; Elworthij V. Sandford, 34 L. J., Ex. 42 ; 3 H. & 0. 330.) Where there is a lease, executed by both pajH;ies, and no counterpart, the tenant who has custody of it is bound to produce it for the landlord to inspect and take copies, even for the purpose of an ejectment. (2 Piatt, 542.) Sect. 2. — Agreements for Leases, A very great number of tenancies, especially agricultural holdings, are under mere agreements, Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 77 or under instruments purporting to be leases, but void as such by reason of not being under seal. It is now proposed to consider the essentials and effect of such instruments. By sect. 4 of the Statute of Frauds (29 Oar. 2, au ogree- c. 3), it is provided, " that no action shall be SJ^tobe brought to charge any person upon any contract "^ writ™g. or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement or some memorandum or note thereof shall be in writing signed by the party to be charged, or some other person thereunto by him lawfully authorized." This includes all agree- ments for leases of " any interest in lands or here- ditaments," and for however short a period the same may be they must be in writing; so that, though for a although a lease for three years or imder may be ttanthrir an oral one, an agreement for such a lease must be J''^'"^^- in writing. [Edge v. Strafford, 1 Tyr. 295.) An agreement to take furnished lodgings is not within the statute {Wright v. Stavert, 2 B. & E. 721 ; 29 L. J., Q. B. 161) ; but a contract to procure for a person the assignment of a lease is, although by a person who has no interest in the lease. {Horsey v. Graham, L. E., 6 0. P. 9 ; 39 L. J., C. P. 58.) So is an agreement to assign rent not yet due. {Ex parte Hall, Ee Whitting, 27 W. E. 385; 40 L. T. 179.) An agreement to satisfy the statute must con- Agreement J . . , 1^ 1 1 (> j_ j_i 1 must ascer- tam, either expressly or by reference to other docu- tain the ments, all the terms, or provide the compulsory ^lYth?™'^ means of determining all the terms, of the contract ^sentiai between the parties. (1.) — It must specify both the lessor and the lessee ( Warner v. WilUngton, 25 L. J., Ch. 662 ; 3 Drew. 523 ; Williams v. Jordan, L. E., 6 Ch. D. 517; 46 L. J., Ch. 681), either by name {Williams v. Lake, 29 L. J., Q,. B. 1), or by some description or reference which sufficiently points out the person referred .to. JSale v. Lam- '^ '• Digitized By Wlicrosofm 78 LAW OF LANDLORD AND TENANT. hert, 43 L. J., Ch. 470 ; L. E., 18 Eq. 1 ; Fotter v. Duffield, 43 L. J., Oh. 472; Commins v. Scott, L.'E., 20 Eq. 11 ; 44 L. J., Ch. 563; Thomas v. Broion, 45 L. J., Q. B. 811; L. E., 1 Q. B. D. 714; Bossiter v. Jlf«7&r, 26 W. E. 865 ; Catling v. King, 46 L. J., Ch. 384 ; L. E., 5 Ch. D. 660.) (2.) — It must describe the property to be leased {Lancaster v. Be Trafford, 31 L. J., Ch. 554) ; but a very general description is ordinarily sufficient {M'Murraij v. Bpicer, L. E., 5 Eq. 527 ; 37 L. J., Ch. 505), as "my house" {Cotoley t. Waits, 17 Jut. 172) ; " the property in Cable Street" {Bleak- ley V. Smith, 11 Sim. 160) ; " the house in Newport" {Owen V. Thomas, 8 My. & K. 353) ; or the like. (1 Dart, Y. & P. 219.) The use of the words "et cetera," should be avoided as ambiguous {Price v. Griffith, 1 De C, M. & C. 80 ; Naylor v. Goodall, 47 L. J., Ch. 53 ; 26 W. E. 162) ; and_ " the property" was held an insufficient description of colliery plant and stock. ( Vale of Neath Colliery Co. V. Furness, 45 L. J., Ch. 276.) (3.)— It must state the length of the proposed lease. {Fifz- maurice v. Bayley, 9 H. L. Ca. 78 ; 27 L. J., Q. B. 143 ; Clinan v. Cooke, 1 Sch. & Lef . 22 ; Gordon V. Trevelyan, 1 Price, 64 ; Cox v. Middleton, 23 L. J., Ch. 618.) (4.) — It must state the time at which the term is to commence {Nesham v. Selhy, 41 L. J., Ch. 173 ; ib. 551; L. E., 7 Ch. 406; Sersey v. Gihlett, 23 L. J., Ch. 818 ; Bavis v. Jones, 25 L. J., C. P. 91; Cartioright v. Miller, 36 L. T., N. S. 398) ; but in Jaques v. MilUr (47 L. J., Ch. 644; 25 W. E. 846 ; L. E., 6 Ch. D. 153), where the date of commencement was not stated, it was held to commence from the date of the agreement ; and in Wesley v. Walker (26 W. E. 368 ; 38 L. T.,N. S. 284), from the commencement of the rent; — and (5) it must specify the amount of rent to be paid. noTneoea- It is Hot ncccssary the agreement should be a dSwntf^ formal instrument, or be contained in a single Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATUEE. 79 paper. It may be contained in a letter or a corre- spondence {Kennedy v. Lee, 3 Mer. 441 ; Cayley V. Walpole, 39 L. J., Ch. 609), or even in receipt for consideration money. (Dolling v. Evans, 36 L. J., Oh. 474; Weslei/ v. Walker, supra; Evans v. Prothero, 21 L. J., Ch. 772.) Any number of documents, written or printed, provided they coii- tain in themselves clear reference to each other, may be used to evidence the agreement. ( Warner v. Willington, 25 L. J., Ch. 662 ; Baumann v. James, L. E., 3 Ch. 508 ; Pierce v. Corf, L. E., 9 Q. B. 210 ; 22 W. E. 299 ; Polell-i. Eutchinson, 3 A. & E. 355 ; Clinan v. Cooke, supra ; Nene Valley Brainage Co. v. Bunkley, L. E., 4 Ch. D. 1.) But they must on the face of them be connected •with each other. {Eishton v. Whatmore, L. E., 8 Ch. D. 467; 47 L. J., Ch. 629; Williams v. Jordan, L. E., 6 Ch. D. 517; 46 L. J., Ch. 681.) Parol evidence cannot be given to show that two or more documents relate to the same transaction ; but where one document refers to other documents by a vague description, parol evidence may be given to identify those documents. {Owen v. Thomas, 3 My. & K. 353 ; Naylor v. Goodall, 37 L. T., N. S. 422.) _ A letter containing the terms of the agreement written to a third party {Gibson v. Holland, L. E., 1 C. P. 1; 35 L. J., C. P. 5), or written to the other party to repudiate the contract upon insufficient grounds {Bailey v. Sweeting, 9 C. B., N. S. 843 ; 30 L. J., C. P. 150 ; and see Buxton v. Bust, L. E., 7 Ex. 279), the minutes of a limited company con- taining the terms of an agreement and signed by the chairman {Jones v. Victoria, Sfc. Bock Co., 46 L. J., Q. B. 219 ; L. E., 2 Qb. B. D. 314), or indeed any other writing by which a party admits that an agreement has been entered into, and what the terms are, will be sufficient. {Hammersley v. Be Digitized by Microsoft® 80 LAW OF LANDLORD AND TENANT Biel, 12 CI. & F. 45 ; and see 1 Dart, V. & P. 207 et seq., 6th ed.) But a solicitor of one party, without express authority to conclude an agreement, has no power to make a binding admission of the terms of the agreement. [Smitli v. Webster, 45 L. J., Ch. 628 ; L. E., 3 Ch. D. 49.) DisHncHon "When an agreement is to be made out from a treaty and a Correspondence, it must be clear that there is a a^eement. Concluded assent to all the terms, and not a mere treaty. A proposal met with a simple and un- qualified acceptance will be sufiicient {Gretton v. Mess, L. E., 7 Ch. D. 839 ; 26 W. E. 607) ; but if the acceptance be subject to some new terms, or otherwise qualified, there will be no agreement until both parties have clearly assented to one and the same set of terms. {Nesham v. Selby, L. E., 7 Ch. 406 ; 41 L. J., Ch. 651 ; Cartwright v. Miller, 36 L. T. 398 ; Cowley v. Watts, 17 Jur. 172; Watts v. Ainsioorth, 1 H. & C. 83; 31 L. J., Ex. 448 ; Routledge v. Gh-ant, 4 Bing. 653 ; Eussey v. Paijne, 47 L. J., Ch. 751 ; L. E., 8 Ch. p. 670 ; on appeal, 27 W. E. 586, H. L.) But if in any informal documents the parties have assented conclusively to the same terms, a mere provision that they shall be embodied in a more formal or detailed instrument wiU not prevent their operating as a concluded agreement {Rklgicay v. Wharton, 6 H. L. Ca. 238; 27 L. J., Ch. 46; Caylcy v. Walpole, 39 L. J., Ch. 609 ; Rossiter v. Miller, 48 L. J., Ch. 10; 26 W. E. 866 (H. L.); Leivis V. Brass, 26 W. E. 162 ; 37 L. T. 738) ; unless it clearly appears that the terms have been assented to only conditionally upon their being embodied in a formal instrument {CMimoeh v. Marchioness of Ely, 4 De G., J. & S. 638 ; 34 L. J., Ch. 399 ; Winn v. Bull, L. E., 7 Ch. D. 29 ; 47 L. J., Ch. 139) ; or that there is some other con- dition precedent to the contract becoming binding. Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 81 {Hudson V. Buch, L. E., 7 Oh. D. 683 ; 47 L. J., Ch. 247.) Where all the terms are assented to subject to a condition, the contract upon the per- formance of that condition becomes absolute. {Bonnewell v. JenJdns, L. E., 8 Ch. D. 70 ; 47 L. J., Ch. 758.) But there must be a final assent to all the terms {Stanleij v. Boiodeswell, 23 W. E. 389), and nothing to manifest that the writings contain only part of the terms, and that the parties have left something to be determined by future agreement. {RoUand v. Eyre, 2 Sim. & S. 194 ; English Credit Co. v. Ardidn, 40 L. J., Ex. 108 ; Vale of Neath Colliery Co. v. Fiirness, 45 L. J., Ch. 276 ; Bertel v. Neveux, 39 L. T. 257.) A pro- posal may be withdrawn or varied at any time before it is accepted (1 Dart, Y. & P. 230), even although a time be named for its acceptance, which time has not expired. {Dickinson v. Bodds, 45 L. J., Ch. 777; L. E., 2 Ch. D. 463; Graham v. Camp- bell, L. E., 7 Ch. D. 490 ; 47 L. J., Ch. 593.) It is sufficient if the agreement be signed by the Ss^eaiiy party against whom it is sought to be enforced, te charged. or his agent. It need not be signed by the other party. {Warner v. Willington, 25 L. J., Ch. 662; Reuss V. Pichsley, L. E., 1 Ex. 342; 35 L. J., Ex. 218.) As to signature, all that is necessary is that a How signed, person should, by writing his name, testify that he has entered into the contract. {Propert v. Parker, 1 Euss. & M. 625 ; Jones v. Victoria, Sfc. Bock Co., 46 L. J., a. B. 219.) Thus, writing at the head of the document, "Mr. W. P. has agreed," &c. would be sufficient. {lb.) It must, however, be introduced into the document in such a manner as to govern and authenticate the whole instrument. {Caton V. Caton, L. E., 2 H. L. 127; Kronheim v. Johnson, L. E., 7 Ch. D. 60 ; 47 L. J., Ch. 132.) Provided it have that effect, it is immaterial B. & L. . . G Digitized by Microsoft® 82 LAW OF LANDLOEB AND TENANT. Agent need not be ap- pointecl by "writing. " Usual" covenants. •whether it is at the beginning, in the middle, or at the end. If there be an apparent intention to sign at the foot of the instrument, as by using the words "as witness out hands," there is no signing unless the names be subscribed. {Hulert v. Tre- herne, 3 M. & Gt. 743.) A man may sign by stamping his name {Bennett v. Brumfitt, L. E., 3 C. P. 28; 37 L. J., 0. P. 25), or by his initials (Sug. V. & P. 144, 14th ed.), or by adopting a previous signature, as by altering or assenting to an alteration made after signature. {Hudson v. Stuart, 22 W. E. 534 ; Bluck v. Gompertz, 7 Ex. 862.) The signature may be in ink or in lead. {Geary v. Physic, 5 B. & 0. 234.) If an agreement be signed by an agent, he need not be authorized to do so by writing {Heard v. Pilki/, L. E., 4 Oh. 548 ; Cave v. Mackenzie, 46 L. J., Ch. 564) ; but he must, in fact, have the authority of his principal to sign a binding con- tract. {Vale of Neath Colliery Co. v. Furness, 45 L. J., Ch. 276; 24 W. E. 631; Stnith v. Webster, L. E., 3 Ch. D. 49; 45 L. J., Ch. 528.) And a house agent, with instructions to find a tenant for property, would not be authorized to enter into a binding agreement with a person willing to be- come tenant. {Hamer v. Sharp, 44 L. J., Ch. 53.) Agreements for leases are often very concise and informal documents, and it is frequently an important question, what terms the parties really have attached to their relationship of landlord and tenant. Thus it is often agreed that a lease shall contain " all usual covenants and clauses," and, indeed, a bare contract for a lease imports that there should be proper covenants, and, according to Lord Eldon, the law implies what they are. {Church V. Brown, 15 Yes. 265; Propert v. Parker, 3 My. & K. 280; and sqq per Jessel, M. E., Hamp- shire V. JFickens, 47 L. J., Ch. 243; L. E., 7 Ch. D. Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 83 555.) It has, however, often been treated as a question of fact properly left to a jury to say what covenants are " usual " {Bennett v. Womack, 3 C. & P. 96) ; and was so left in the recent case of Brookes v. Bnjsclah (L. E., 3 C. P. D. 5S ; 26 W. P. 331). It is submitted that the true dis- tinction is, that the covenants mentioned below as usual and proper ia any lease, would be so regarded as matter of law; and that other cove- nants claimed to be usual from custom, particular trade, or other circumstances, would be a question of fact for a jury. In ascertaining what are usual covenants, clauses and provisoes, it must be borne in mind that the fact of a covenant or proviso being usually inserted in leases of a similar kind will not bring it within the legal acceptation of the term "usual." (5 Dav. Conv. 51, 3rd ed.) Thus, in the absence of an express stipulation, the court, under an agree- ment for "usual and customary clauses," will only allow to be inserted in the lease a proviso for re- entry on non-payment of rent, and not a general proviso for re-entry on breach of any covenant, although the latter may be usually inserted in similar leases in the locaKty. [Hodgkinson v. Crowe, 44 L. J., Ch. 680 ; L. P., 10 Ch. 622.) In that case there was an agreement for a lease to contain "usual and customary mining clauses:" it was held to mean not usual clauses in a mining lease, but usual clauses for carrying on mining operations. {Sodgkinson v. Croioe, 44 L. J., Oh. 238; L. P., 19 Eq. 591.) Covenants by the lessee for payment of rent ^^*^*jrf {Taylor v. Horde, 1 Burr. 60, 125) ; for payment '^"'' ' of such taxes as are not expressly payable by the landlord (5 Dav. Conv. 51, 3rd ed.) ; to keep the pre- naises in repair {Boe v. JVithers, 2 B. & Ad. 903) ; to give them up in that condition at the expiration g2 Digitized by Microsoft® 84 LAW OF LANDLORD AND TENANT. or determination of the term; to permit the lessor to enter and view the state of repairs [Blahesley v. WTieldon, 1 Hare, 181) ; to cultivate lands accord- ing to. the approved rules of husbandry; and a covenant by the lessor for quiet enjoyment as against himself and those claiming through him 01all V. City of London Breicery Co., 31 L. J., Q. B. 257), may be treated as usual and proper covenants in any lease. {Hampshire v. Wickens, L. E., 7 Ch. D. 555; 47 L. J., Ch. 243.) Custom and the particular circumstances may render other cove- nants proper, but they cannot be considered as usual ones ia a legal sense. Thus, ia an agree- ment for a lease to contaia " all covenants usual and ordinary in farming leases," the local custom in respect of such leases may be looked to {Bell v. Barchard, 21 L. J., Ch. 411 ; 16 Beav. 8), or previous leases between the same parties. Covenants Clauses as to forfeiture on bankruptcy, and in Venation, restraint of assignment without licence, are not usual {Henderson v. Hay, 3 Bro. C. C. 632 ; Jones V. Jones, 12 Yes. 186 ; Hampshire v. Wickens, 47 L. J., Ch. 243 ; L. R., 7 Ch. D. 555 ; Hyde v. Warden, L. E., 3 Ex. D. 72; 47 L. J., Ex. 121 ; Church V. Broicn, 15 Ves. 258 ; Buckland v. PapiJ- lon, L. E., 2 Ch._ 67 ; 36 L. J., Ch. 81) ; even in a mining district where such clauses are cus- tomary. {Hodgkinson v. Groice, L. E., 19 Eq. 591 ; 44 L. J., Ch. 239.) Neither is a proviso that underleases, assignments, and evidence of devolutions of the premises shall be left with the solicitor of the lessor within two calendar months from the date thereof for registration, and a fee paid for registration "common and usual" in leases of pubKc-houses. {Brookes v. Drysdale, L. E., 3 C. P. D. 52; 26 W. E. 331.) Such provisoes are, however, common in leases in the county of Middlesex, — a fact to be borne in mind in dealing with property so situate. Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATUBE. 85 Covenants in restraint of trade in a trading dis- ^I^'t'™* trict {Wilhrahmn v. Livesey, 18 Beav. 206), or re- straining the lessee from carrying on a particular trade without the licence of the lessor, are not "usual" {Propert v. Parker, 3 My. & K. 280); and an agreement that a house shall not be eon- verted into a school, wUl not authorize a restriction against the carrying on of other trades. ( Van v. Cm-pe, 3 My. & K. 269.) Neither will an agree- ment not to carry on any but a given trade autho- rize the insertion of affirmative covenants to carry on that trade. {Doe v. Guest, 15 M. & W. 160.) It is not a usual proviso that if the premises demised be blown down or burned by accidental fire, the lessor shall repair or rebuild, or in default the lessee shall be at liberty to quit the premises, and be forthwith discharged from payment of rent. (Doe V. Sandham, 1 T. E. 705.) And upon an agreement "for usual and necessary covenants and provisoes, and particularly a covenant on the part of the lessee to keep the premises in good tenant- able repair," it was held that he was not entitled to introduce into the covenant the words "damages by fire or tempest only excepted." [Sharp v. Mil- ligan, 23 Beav. 419.) It seems that upon the letting of a public-house a covenant that the tenant shaU. do no act whereby the licence shall become forfeited, is not an implied, and therefore not a usual, covenant. [Maio v. Ilindmarsh, 28 L. T., N. S. 644.) And where a lease of a public-house contained covenants by the lessee to keep up the licences, and after its expiration the lessor agreed to grant a new lease to contain covenants "similar to" those of the former lease, and imder this agreement the lessee retained possession and suf- fered a forfeiture of his licence, the lessor having sought specific performance, it was held that he was not entitled to insert a covenant to keep up the licence, but only a covenant that the lessee would Digitized by Microsoft® 86 LAW OF LANDLORD AND TENANT. use his best endeavours to obtain a licence, and, if obtained, would keep up the same in the terms of the old covenant. (Shepheard v. Walker, 34 L. T., N. S. 230.) The only safe course in an agreement is to set out verbatim the covenants intended to be inserted in the lease; for questions in respect of "usual" clauses mil otherwise arise upon an attempt to enforce specific performance of the agreement, or in any legal proceedings in respect of the duties and liabilities of the parties thereunder. Void leases As no formal words are requisite to make a a^eemente. demise, it was frequently a question before 8 & 9 Vict. c. 106, which provided ia effect that leases for more than three years should be void unless by deed, whether a document was an actual lease or only an agreement for one. In Stratton v. Pettit (16 0. B. 420), it was held that a lease void as such was void altogether. But this decision has been overruled; and it has been determined that a lease ia writing not under seal, though void as a lease, will operate as an agreement for the term and upon the conditions therein specified {Sondv. RosKng, 30 L. J., Q. B. 227; JRoUasoiiY. Leon, 31 L. J., Ex. 96; Tidey v. MoUett, 33 L. J., C. P. 235 ; 16 0. B., N. S. 298), and it may be specifically enforced. {Parl-er v. Tasicell, 2 De Gr. & J. 559 ; Drury v. Macncmiara, 5 E. & B. 616 ; 25 L. J., Q. B. 5.) Moreover, if a tenant enters under a void lease and pays rent, he becomes tenant from year to year upon all the terms of the lease not inconsistent with such a tenancy. {Martin v. Smith, L. E., 9 Ex. 60; 43 L. J., Ex. 42; ante, p. 6.) As to what terms in siich an instrument would be inconsistent with a yearly tenancy, it has been held that a stipulation for a two years' notice is so {Tooher v. Smith, 1 H. & N. 732) ; as is a covenant to build or to do such material repairs as are not usually done Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 87 by tenants from year to year. (Bowes v. Croll, 6 E._& B. 264.) But stipulations to keep the premises in good tenantable repair {Richardson V. Clifford, 1 A. & E. 52) ; or to keep open the shop, and use best endeavours to promote the trade of it during the tenancy {Sanders v. Karnell, 1 F. & F. 356) ; or a proviso for re-entry on non-payment of rent or non-performance of covenants {Thomas v. Paclier, 1 H. & N. 669) ; or that the tenant shall be paid for his tillages on the expiration of his tenancy {Brocklington v. Saunders, 13 W. E. 46), are applicable to such a tenancy. And where the tenant holds during the vrhole of the contemplated term, he wUl be bound by a stipulation that he shall paiat during the last year of the term. {Martin v. Smith, L. E., 9 Ex. 50 ; 43 L. J., Ex. 42.) But where there was a lease by a tenant for life, and after his death the tenant paid rent to and became yearly tenant to the reversioner, who was ignorant of the terms of the lease, the yearly tenancy was held to be one according to the custom of the country, and not upon the special covenants of the lease. {OaMeij v. Monclc, 35 L. J., Ex. 87.) When a tenancy is actually created by entry on the land and payment of rent, the terms of the tenancy may be proved by oral testimony. And a document read over at the treaty for the taking may be used by a witness to refresh his memory as to the stipulations. {Bolton v. Tomlin, 5 A. & E. 856.) An agreement to grant a lease is in equity a Specific per- lease {Warner v. M'Bryde, 36 L. T., N. S. 360, '^T°' per Mahns, V.-C.) _; and if there be a proper ?^t|S*' agreement in writing for a lease, a suit for specific performance of it may generally be main- tained, the same as in the case of other agree- ments. But performance will not be enforced of Digitized by Microsoft® perfoi-m- ance. 0» LAW OV LANDLORD AND TENANT. an agreement for a lease from year to year {Ckii/- ton V. lUingworth, 10 Hare, 451) ; nor where the term agreed upon has expired, or will expire before a decree can be obtained {Neshit t. Meyer, 1 Swanst. 226 ; Walters v. Northern Coal Co., 25 L. J., Ch. 633, 638 ; 5 De G-., M. & G._ 629) ; nor where, if granted, it might be determined at once for breach of a covenant which the plaiatiffi has already broken {Jones v. Jones, 12 Yes. 188 ; but see LilKe v. Legh, 3 De Gr. & J. 204 ; Toyntz V. Fortune, 27 Beav. 393) ; nor after an un- reasonable delay (Batmport v. Walker, 34 L. T., N. S. 168), even though there may have been possession and payment of rent during the period. (FoKis V. Dynevor, 35 L. T., N. S. 940.) ot oral Even where there has been only an oral agree- after part meut lor a lease it may be enforced specmoaily, where there has been a sufficient part perform- ance of the contract to take it out of the operation of the Statute of Frauds, and the terms of the agreement can be distinctly shown. {Lester v. Foxcroft, 1 Wh. & Tu. L. 0. 693.) To amount to part performance, an act must be unequi- vocally referable to the agreement {Morphett v. Jones, 1 Swanst. 181), and such as in itself to infer some agreement, and then parol evidence is admitted to show what the agreement was. {Frame v. Dawson, 14 Ves. 386.) Thus, where a person enters into possession under a parol agree- ment, and with unequivocal reference to such agreement {Morphett v. Jones, supra; Ungley v. Ungley, L. E., 5 Ch. D. 887 ; 25 W. E. 733) ; a fortiori where such person has, upon the faith of the agreement, and with the landlord's acquies- cence, expended money ia building, or other im- provements {Gregm'y v. Mighell, 18 Ves. 328 ; Sutherland v. Briggs, 1 Hare, 26 ; Mundy v. JoUiffe, 5 My. & C. 167 ; ShilUbeer v. Janis, 8 Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. De Gr., M. & Gr. 79), or otherwise acted in re- liance on and in execution of the agreement, so that non-performance would he a fraud upon him (Phillips V. Aklerton, 24 W. E. 8), specific per- formance will he enforced {per Lord Kingsdown, Ranmlen v. Dyson, L. E., 1 H. L. 170 ; Bankart V. Tennant, 39 L. J., Ch. 809 ; Lindsay v. Lynch, 2 Sch. & Lef. 1) ; and possession and a special expenditure hy the tenant on the faith of a parol agreement for a lease was held sufficient to entitle him to specific performance, although the agree- ment was denied hy the landlord. {Farrall v. Davenport, '6 GrifE. 363.) And so, where there has heen such an expenditure or possession given, the court will decree specific performance of an agree- ment hy a corporation which is not under the cor- porate seal. [Crook v. Seaford, L. E., 6 Oh. 551; Wilson V. West Hartlepool Rail. Co., 34 L. J., Ch. 241.) But it is essential that the possession should he given according to the contract, and not oh- tained wrongfully. [Cole v. Wliite, cited 1 Bro. C. 0. 409.) Payment of consideration money is not an act of part performance [Clinan v. Cooke, 1 Sch. & Lef. 40) ; neither are payments introductory to an agreement, such as making a survey, valuation, or appraisement, or preparing an instrument of demise. Ordinarily, when the tenant is in pos- session at the date of the parol agreement, merely continuing in possession does not of itself amount to part performance. [Morphett v. Jones, 1 Swanst. 181 ; Wills V. Stradling, 3 Yes. 378 ; hut see Doivell V. Deiv, 1 T. & 0. 0. 0. 345.) He must do some act purporting to he in pursuance of the new contract. Thus, where the lessee in possession paid an increased rent {Nunn v. Fabian, L. E., 1 Oh. 35 ; 35 L. J., Oh. 140), and again, where he expended money in repairing the huildings ( Wil- Digitized by Microsoft® 90 LAW OF LANDLOKD AND TENANT. Oral agree- ment colla- teral to one in ■writing supported. liams V. Evans, 44 L. J., Ch. 319), in accordance ■with the terms of the agreement for a further lease, these were held to amount to acts of part performance. But merely doing acts which he would he liable to do if there were no agreement would not amount to part performance. (See Frame t. Baioson, 14 Ves. 386.) But in aU cases it must be shown plainly and distinctly what the terms of the agreement are, and that the acts done are referable to that agreement alone. {Per Lord EomiUy, Price v. Sahishiry, 32 L. J., Ch. 447.) When in an action for specific performance, a person has been directed to execute a lease, but refuses to do so, the court can only enforce the order for its execution by attachment, the Trustee Act not applying to such a case. {Grace v. Bayn- toti, 25 W. E. 506.) If money has been expended upon the alteration of premises upon the faith of a treaty for a lease not amounting to a concluded agreement, and which lease the defendant refuses to grant, the money so expended may be recovered back as upon a failure of consideration. {Ptilbrook v. Laices, 45 L. J., Q. B. 178 ; L. E., 1 Q. B. D. 284.) It often happens- during the treaty for, and before a formal lease or agreement is dra-wTi up, certain matters are agreed upon which are not afterwards embodied in the formal instrument, and a question arises whether they can be enforced by the one party against the other ; and the test would seem to be, first, whether the alleged agree- ment is concerning " an interest in lands or tene- ments," and if not, then, secondly, whether it amounts to a variation of the terms of the written agreement, or forms an independent coUateral contract. In the latter case it may be supported, Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATUKE. 91 though not in writing. {Lindleij v. Lacey, 17 C. B., N. S. 578; 34 L. J., C. P. 7.) Thus, where a tenant entered on land on the understanding that a lease should he executed at a future time, when the lease was presented he refused to sign unless the landlord would agree to destroy the rahbits. The landlord then verbally consented, and the tenant signed the lease, which contaiaed a clause by which the tenant agreed not to shoot, hunt, sport or destroy any game, but to use his best endeavours for the preservation of the same. In an action by the tenant upon the landlord's verbal agreement to destroy the rabbits, it was held that this agreement, though oral, was bind- ing, since it was collateral to, and did not alter or vary, the written contract. {Morgan v. Griffitiis, L. E., 6 Bs. 70; 40 L. J., Ex. 46; Erskine v. Adeane, 42 L. J., Ch. 849 ; Mann v. Nunn, 43 L. J., C. P. 241.) But evidence cannot be given to set up a prior parol agreement in lieu of a written one. {Ancjell v. Buke, 32 L. T., N. S. 320.) Where there has been a written agreement for Agreement •t pn Ti 111 i^ i_ incorporated a lease, loilowed by an actual lease, the two may mth a lease. be read and construed together, and the general terms of the latter may be controlled by the par- ticular provisoes of the former. [Salaman v. Glover, 23 "W. P. 722; but see Sanderson v. G-rates, 23 W. P. 797.) By 37 & 38 Yict. e. 78, s. 2, it is provided that gf5'4^°^,^i "under a contract to grant or assign a term of title. years, whether derived or to be derived out of a freehold or leasehold estate, the intended lessee or assign shall not be entitled to call for the title of the freehold." This does not prevent the grantee or purchaser of an underlease calling for the title of his immediate lessor. (1 Dart, V. & P. 167, 290, 5th ed.) In any case where the intended Digitized by Microsoft® 92 LAW OF LANDLOliD AND TENANT. lessee proposes to expend money in improvements or building, it is imprudent to take a lease without investigating the lessor's title (see Besley v. Besley, 38 L. T. 844), for he is bound by aU the in- firmities in such lease, notwithstanding he may have been excluded by express condition from in- vestigating it. tTnstamped instxuments nofc admis- sible in evi- dence. May be Btamped on payment of penalty. Sect. 3. — Stamps. Leases and agreements for leases must be duly stamped. The want of a proper stamp, however, does not affect the validity or legal operation of an instrument, but merely renders it inadmissible in evidence until duly stamped, except ia criminal proceedings (33 & 34 Vict. c. 97, s. 17 ; see Clarke V. Roclie, L. E., 3 Q. B. D. 170 ; 47 L. J., Q. B. 147), — which would include proceedings for of- fences against the game laws or the like (see Cattell V. Irewn, E. B. & E. 91 ; Parker v. Green, 2 B. & S. 299), — or for a collateral purpose, e. g. to show that the instrument is void by reason of fraud. {Holmes v. Sixsmith, 21 L. J., Ex. 312.) An instrument not stamped or insufficiently stamped at the time of execution may be stamped at any time afterwards on payment of the duty and a penalty of 10/.; and if the duty exceeds 10/., then by way of further penalty, interest on such duty at the rate of 5/. per cent, per annum from the date of execution. The payment of any penalty or penalties is to be denoted on the instrument by a particular stamp. The commissioners have the power, within twelve months after the first execu- tion, to remit the penalty. (33 & 34 Yict. c. 97, s. 15.) If an unstamped or insufficiently stamped instrument is produced as evidence in court, it may, on payment to the officer of the court of the Digitized by Microsoft® THE DEMISE — ITS REQUISITES AND NATURE. 93 amount of the unpaid duty and the penalty pay- able by law on stamping the same as aforesaid, and a further sum of 1^., be received in evidence. (Sect. 16.) By former acts fourteen days were allowed for stamping agreements without any penalty, and where the subject-matter of the agreement was under 201. the penalty was reduced to 1/. ; but neither of these provisions are contained in the act now in force. The practice of the com- missioners is stm, however, to allow fourteen days for the stamping of agreements. If an unstamped instrument in writing has been lost {Bex V. Castle Morton, 3 B. & Aid. 588), of destroyed, even by the party who objects to the evidence (Bippinej' v. Wright, 2 B. & Aid. 478), parol evidence of the contents is inadmissible, even in an action for specific performance. {Smith v. Senktj, 1 Phill. 391.) When an unstamped or improperly stamped Amount of instrument is afterwards stamped, the amount of lated^fact the stamp will be that required by the act in force ™ate o? '^ at the date of stamping, although a greater one stamping. would have been required at the date of the instru- ment. {Buckworth v. Simpson, 1 C. M. & E. 834 ; Beakin v. Benniall, 17 L. J., Ex. 217.) The duties now payable in respect of leases and agreements for leases are set forth in Appendix A., from which it will be seen that for a term not exceeding thirty-five years, a lease and an agree- ment for a lease require the ISame stamp. An instrument containing or relating to several insh-uments distinct matters is to be separately and distinctly douSf ope- charged, as if it were a separate instrument, with e^mpe*(iirr duty in respect of each of such matters. (33 & '■^^f'"^*°£ . 34 Yict. c. 97, s. 8; but see s. 98.) Thus a demise of two distinct properties to two several tenants by the same instrument would require stamps on the several rents, and not on the aggregate amount Digitized by Microsoft® 94 LAW OF LANDLORD AND TENANT. Distiuct of such rents. But a demise to the same person of two properties for terms commenciag at different dates and at distinct rents for each {Boase v. Jackson, 3 B. & B. 185) ; or of two farms for terms of different duration, with distinct rents and varying covenants {Blount v. Pearmcin, 1 Bing. N. C. 408), but contained in one instrument, would be held one transaction, and a stamp ap- optionto plicable to the aggregate rent sufficient. Nor piuc aso. Tjurotdd a matter for wMoh the rent was the con- sideration ' require a separate stamp. So that a lease is not subject to an agreement stamp in respect of its reserving an option to the lessee to ptirchase the demised premises. ( Worthington v. Warrington, 5 C. B. 635.) But where a demise of a house contained an agreement to sell it and other houses for a certain sum within seven years, it was held to require both a lease and an agree- ment stamp. [Lovelock v. Frankland, 16 L. J., Q. B. 182 ; 8 Q. B. 371.) Building A covcnaut On the part of the tenant to lay out money in building does not render an ad valorem duty payable on the amount to be so expended. {Nicliolls V. Cross, 14 M. & W. 42 ; and see 33 & 34 Vict. c. 97, s. 98, sub-s. 2.) Penalty When in a farming or building lease additional rents are made payable for ploughing up old meadow land, or building more than the specified number of houses or the like, these being rather penalties than rent, and depending upon a con- tingency which may not happen, do not seem of necessity to involve an additional stamp. If the additional rents should, however, become payable, it might be questionable whether the lease could be received in evidence without the additional stamp being impressed. (See 2 Piatt on Leases, 556.) An instrument having a double operation can- Digitized by Microsoft® leases. rents, THE DEMISE — ITS EEQUISITES AND NATURE. 95 not be used unless sufficiently stamped for both. Thus, where a lease in WTiting contained a con- tract for the purchase of fixtures, but stamped only as an agreement (but as such sufficiently for the fixtures), it was held that it could not be used in evidence in an action for the price of the fix- tures unless it had a lease stamp. {Corder v. Bmkeford, 3 Taimt. 382 ; see 33 & 34 Yict. c. 97, s. 97.) Whatever its form, an instrument must be stamp ae- stamped according to its actual legal operation Sp'eratfon" {Limnier Asphalte Co. v. Inland Revenue, L. ii., 7 Ex. 211 ; 41 L. J., Ex. 106) ; and, accordingly, a biU of exchange expressing the terms of an agreement between a landlord and incoming tenant was held inadmissible until stamped as an agree- ment. {Nicholson v. Smith, 3 Stark. 128.) An instrument of demise must be stamped in Must cover respect of the whole amount of rent reserved or rfU!''^^ payable under it, whether expressed in terms or by reference. {Parry v. Deere, 5 A. & B. 551 ; Wilson v. Smith, 12 M. & W. 401.) And where there was a lease reserving one rent for a house and land, and another rent for furniture and fix- tures, a stamp in respect of the former rent alone was held insufficient. {Coster v. Coivlincj, 7 Bing. 456.) Though a lease for three years is not required Leases for to be in writing, if it is, it must be stamped. ^'^^'^ 5'<^^'"- {Prosser v. Phillips, Hereford Assizes, 1765, BuU. N. P. 269.) The statute 39 Vict. c. 16, s. 11, enacts as nistrument foUows : — " An instrument whereby the rent re- ™nt^™^ served by another instrument chargeable with S^^L- stamp duty as a lease or tack and duly stamped stmment. accordingly is increased, shall not be chargeable with stamp duty otherwise than as a lease or tack Digitized by Microsoft® 96 LAW OF LANDLORD AND TENANT, Alterations requiring fresh Deeds pre- sumed to be properly stamped. in consideration of tlie additional rent thereby made payable." After an instrument has become operative, if it is altered in any material point by consent, it must have a new stamp affixed. {Beed v. Beere, 7 B. & C. 261.) If the alteration is not material no fresh stamp is necessary. Thus, an agreement for a lease with a proviso for giving up a farm at a certain time, to which the words " houses and buildings" were added by consent of the parties, was held not to require a new stamp, the altera- tion merely expressing what was previously im- plied. {Boe V. Eoughton, 1 Man. & E. 208.) Where, after one party has executed a deed, another party present objects to a clause, which is struck out, and the deed is re-exeouted, it is in fieri, and does not require a fresh stamp. [Jones v. Jones, 1 Or. & M. 721 ; Sail v. Ghandless, 4 Eing. 123.) An agreement to let premises, a portion of which (in the adverse possession of an undertenant) it was afterwards agreed to exclude from the letting, would amount to a new demise ( Watson V. Watid, 8 Ex. 335) ; but not so a mere agreement to accept a less rent {Crowley v. Vitly, 7 Ex. 319; Boe v. Geelde, 6 Q. B. 841) ; even if accompanied by a giving up of portion of the demised premises. {Holme v. BrunskiU, L. Er., 3 a B. D. 495 ; 47 L. J., P. 610.) The presumption is always in favour of the validity and regularity of a deed, and an old deed which bore the marks of having had some stamp was presumed to have been properly stamped. {Boe V. Coombs, 12 L. J., Q. B. 36.) And the court will, in the absence of circumstances inducing a supposition to the contrary, presume that a lost instrument was duly stamped; and so when the instrument is in the custody of the opposite party Digitized by Microsoft® THE DEMISE — ITS KEQUISITES AND NATURE. 97 who refuses to produce it. {Crisp v. Anderson, 1 Stark. 35.) The production of a counterpart lease is suf- ficient to raise the presumption that there was an original lease duly stamped. [Hughes v. Clark, 10 C. B. 905 ; Houghton t. Koenig, 18 0. B. 235.) E. &. L. . . H Digitized by Microsoft® ( 98 ) CHAPTEE V. EIGHTS AND LIABILITIES OF THE PARTIES DUEING THE CONTINUANCE OF THE TENANCY OTHER THAN THOSE CONNECTED "WITH DISTRESS. Every let- ting implies a covenant for quiet enjoyment. Co-exten- sive only ■with the lessor's in- terest. Sect. 1. — Quiet Enjoyment. To enable a tenant to derive any benefit from bis tenancy, it is necessary (be fulfilling bis own obli- gations) tbat be be permitted quietly to possess and enjoy tbe property demised. Tberefore tbe law implies in every letting, wbetber under seal witb proper words of demise [Ig gulden v. May, 9 Yes. 330; Adams v. Gibney, 6 Bing. 666), or by parol merely {Bandy v. Carticright, 8 Ex. 913 ; 22 L. J., Ex. 285; Hall v. City of London Brewery Co., 31 L. J., Q. B. 257), a covenant on tbe part of tbe landlord for quiet enjoyment ; for wbatever words create an estate bave a secon- dary operation, and form a covenant for tbe quiet enjoyment of sucb estate as tbey bave already created {jjer Tiadal, C. J., Williams v. Burrell, 1 C B. 429) ; but in leases not under seal only to tbe extent of tbe estate actually created, and not to so mucb as is in excess of tbe landlord's power to create ; for tbe implied covenant is only co-ex- tensive witb tbe interest wbicb tbe lessor bas {jw Coltman, J., Messent v. Reynolds, 3 C. B. 194 ; Besley V. Besley, 38 L. _T. 844; 27 W. E. 184), since tbe law does not imply a covenant on tbe part of tbe landlord for good title. {Bandy v. Carticright, Digitized by Microsoft® KIGHTS AND LIABILITIES DUKTNG THE TENANCY. 99 supra; Granger v. Collins, 6 M. & W. 458.) But words of in the case of Line v. Stephenson, 5 Bing. N. 0. derito^piy- 183 (and see Bitrnett v. Lynch, 5 B. & C. 609), j^f.^™^ it was held that the effect of the word " demise " in a lease by deed was to create not only an implied covenant for quiet enjoyment, but also one that the lessor had a good title, and, still more recently {Mosti/n v. West Mosti/n Coal Co., 45 L. J., C. P. 405 ; L. E., 1 C. P. D. 145), that the word " let," or any equivalent word in a lease by deed, would have the same effect. These decisions are, however, in conflict with the views expressed in other cases. {Pen/old v. Abbott, 32 L. J., Q. B. 67 ; Adatns v. Gibney, 6 Bing. 666 ; Messent V. Reynolds, 3 0. B. 194.) In an agreement for a lease there is no implied Agi-eement promise for quiet enjoyment {Brashier v. Jackson, rSLes'no''^ 6 M. & W. 549) ; nor does an agreement for a S^lor^™' lease to commence at a future day imply in itself luiet enjoy- a promise to give possession on that day (Drury v. Macnamara, 25 L. J., Q. B. 5), though the agree- ment might be specifically enforced. An agree- ment which operates as an actual demise amounts to an agreement to give possession. {Coe v. Clay, 5 Bing. 440; Jinlts v. Ldwards, 11 Ex. 775.) Moreover, an agreement to grant a lease contains but amounts an implied undertaking that the lessor has title to takSg lo^" grant such lease ; and if he has not, he is liable *'"'^- to an action at the suit of the intended lessee. (StranJcs v. St. John, 36 L. J., C. P. 118 ; L. E., 2 C. P. 376.) A lease is a sale jjro tanto, and as upon a sale on taidns a the maxim caveat emptor applies, so upon taking mwat ^ a lease it is caveat the lessee. Therefore, where ^'^^^'^''■ the lessor is himself a termor, the lessee must at his perO. ascertain that the lessor has power to create the proposed term [Lesley v. Lesley, 38 L. T. 844), and that he can grant a lease unfettered by restric- h2 Digitized by Microsoft® 100 LAW OF LANDLORD AND TENANT. tive covenants. {Parker v. Whyfc, 32 L. J., Ch. 520.) And a lessee must bind his lessor by express stipulation to do any act he may require to be done, even although without it the premises may not be available for the purposes for which they were known to be taken. {Newhy v. Sharpe, L. E.., 8 Ch. _D. 39 ; 47 L. J., Ch. 617.) A covenant for quiet enjoyment affords no remedy in such cases. No war- There is no implied warranty on the letting of conStton on real cstate, that is, unfurnished houses or land, that reaTestate. '^^ ^ °^ shaU be reasonably fit for habitation, occupation, or cultivation; nor is there any im- plied contract that it is fit for the purpose for which it is let. {Sart v. Windsor, 12 M. & W. 68.) Before taking a farm or house the tenant should go and see the state it is in {Erskine V. Adeane, 42 L. J., Ch. 835; L. E., 8 Ch. 756), and if he neglect to do so he must stiU take the property as he finds it ; although in the case of land it may not be fit for the purpose for which it was taken by reason of being partly manured with a poisonous substance [Sutton v. Temple, 12 M. & W. 52), or not being free from noxious plants [Erskine v. Adeane, supra) ; and in the case of an unfurnished house, though it may be ruinous, uninhabitable, or dangerous. [Hart V. Windsor, supra; Keates v. Earl Cadogan, 20 L. J., 0. P. 76; lOO. B. 591.) otherwise In the letting of furnished houses or apart- fSi'shed °* ™s^ts t^s rule is different. That is a mixed con- houses, tract for realty, and for goods and chattels, and in such a letting there is an implied condition that the house is reasonably fit for occupation and com- fortable habitation on and from the day on which the tenancy is to commence down to the day on which it is to terminate. ( Wilson v. Finch-Hatton, 46 L. J., Ex._489; L. R, 2 Ex. D. 336.) And the condition is eqvially broken whether the unfit- Digitized by Microsoft® EIGHTS AND LIABILITIES DURING THE TENANCY. 101 ness arise from defects in the house itself, as bad drainage {il.), or from the furniture being unfit for use, or the place becoming uninhabitable by reason of dirt or vermin. [Smith v. Marrahle, 11 M. & W. 5 ; and see 12 M. & W. 60, 87 ; Camp- bell V. Wenlock, 4 F. & F. 716.) In such case the tenant is entitled to throw up house and furniture at the earliest moment the defect is discovered and to take proceedings for breach of contract. The operation of an implied covenant is super- Express seded by an express covenant for quiet enjoyment, quletcnfoy- [Merrill v. Frame, 4 Taunt. 329.) TJnder an j;^™?,^";!^^ express covenant for quiet enjoyment, the lessee the term is entitled to enjoy the premises during the whole ?rcreatea. of the term mentioned in the demise; and if it should turn out that the lessor had no title to make a lease for so long, the lessee is entitled to so much damages as will compensate him for the injury sustained by breach of covenant. [Loch v. Furze, 19 C. B., N. S. 96; 35 L. J., G. P. 141.) Both implied and express general covenants for CoTenants quiet enjoyment are confined to lawful, and do not lawfuievio- extend to wrongful, evictions, unless the lessor ^^°'^' himself be the disturber ; for the law will never adjudge that a lessor covenants against the wrong- ful acts of strangers, except his covenant be ex- press for that purpose. {iJudleij v. FoUiott, 3 T. E. 684; Wotton v. Hele, 2 Wms. Saund. 178 (8.) But a covenant against the acts of particular micss par- individuals extends to all theu- acts, whether by viduais lawful or wrongful title. {Nash v. Palmer, 5 M. ''™^^- & S. 374; Foiole v. Welsh, 1 B. & 0.29.) The extent of the lessor's liability under an -where law- express covenant for quiet enjoyment, for the acts inciuaeliTir of persons having rightful title, will be measured ^o^nant!" by the terms of the covenant. If it be for quiet enjoyment "against all persons whatsoever law- fully claiming the same" {Williams v. Burrell, 1 Digitized by Microsoft® 102 LAW OF LANDLORD AND TENANT. The cove- nant IS to secure pos- session ; not a particular mode of en- joyment. C. B. 402), or that the lessee "shall peaceably and quietly enjoy during the term" {Onions v. Cohen, 34 L. J., Ch. 338), it will extend to all persons who have or acquire a rightful title to the property during the continuance of the term ; and a covenant against all persons claiming or pre- tending to claim a right in the premises extends to tortious as well as legal interruptions. [Chaplain V. Southgafc, 10 Mod. 384.) If it be as against the lessor and all persons claiming " by, from or under him," it will not extend to an eviction by a person claiming a title paramount to him {Merrill v. Frame, 4 Taunt. 329) ; and the terms persons claiming " by, from and under " the lessor do not include a person claiming against him, as in the case of a distress for land tax due from the landlord before the demise. {Sfanlei/ v. Sayes, 3 Q.. B. 105.) But a person claiming under a settle- ment made by the lessor would be a person claim- ing under the lessor {Ecans v. Vaughan, 4 B. & 0. 261 ; Carpenter v. Parker, 3 0. B., N. S. 206) ; so would a person claiming under a lease from him prior in date to that of the lessee. {Ludwell v. Newman, 6 T. E. 458 ; Rolp)h v. Crouch, 37 L. J., Ex. 8.) Any proceeding in a court of law interfering with the title and possession of the land amounts to a breach of a covenant for quiet enjoyment ; on the other hand, such a proceeding interfering only with a particular mode of enjoyment of' the land or part of it, but not of the title or possession, is not a breach. It is to be regarded as intended to secure title and possession, and not to guarantee the tenant that he may lawfully use the property for any purpose not provided against by restrictive covenants. {Bennett v. Atherton, 41 L. J.. Q,. B. 165, per Willes, J.) And in that case it was decided, where a person who held under a lease Digitized by Microsoft® EIGHTS AND LIABILITIES DURING THE TENANCY. 103 containing covenants restrictive of the user of the premises, sub-let to a lessee (without notice of those covenants), by a lease containing some only of the origiaal restrictions, that there was no guarantee that the sub-lessee might use the pre- mises for any purposes other than those mentioned. The covenant is broken by any act done in the now assertion of a right which prevents the lessee having full enjoyment of the property demised. {Lloyd V. Tomkies, 1 T. E. 671.) Thus, if the lessor covenant that the lessee shall enjoy a certain close, and afterwards put up a gate by which the lessee is obstructed in passing to it {Andrews v. Paradise, 8 Mod. 318) ; or lease a watercourse and afterwards stop it up ; or a house and estovers and destroy all the wood {Pomfret v. Ricroft, 1 "Wms. Saund. 321) ; or let a seam of coal, and afterwards work minerals in the stratum above so as to cause the roof of the mine to fall in {Shaw v. Stenton, 2 H. & N. 858) ; or build on his own adjoining land, so as to darken the lessee's windows (but see Potts V. Smit/>, 38 L. J., Oh. 58 ; L. E., 6 Eq. 311 ; Pooth V. Akock, L. E., 8 Ch. 663; 42 L. J., Ch. 657) ; so such a covenant is broken by any disturbance resulting from a person enforcing a charge which the lessor ought to have satisfied. {Hancock v. Caffyn, 8 Bing. 358.) But any mere annoyance or trespass not in the assertion of a right, as by hunting, is not a breach. {Lloyd v. Tomkies, 1 T. E. 671.) And a covenant that the lessor had not "done, or permitted or suffered to be done, any act, &c.," was held not to be broken by his having assented to an act which he could not prevent. {Hobson v. Micldleton, 6 B. & 0. 295.) A covenant for quiet enjoyment of a right of in a licence sporting, is not broken by destroying rabbits or ""^ coverts {Jefrijes v. Prans, 19 C. B., N. S. 246) ; Digitized by Microsoft® 104 LAW OF LANDLORD AND TENANT. Breach of, only sus- pends rent. or cutting down trees [Geams v. Baker, 44 L. J., Oh. 334 ; L. E., 10 Oh. 355) in the proper course of management of the property, or by offering the property for sale in lots as building premises. {Paitison v. Gilford, 43 L. J., Ch. 524 ; L. E., 18 Eq. 259.) A breach of covenant for quiet enjoyment does not discharge the tenant from any liability imder his lease, except the liability to pay rent. {Morri- son v. Chadioick, 18 L. J., C. P. 189 ; 7 C. B. 283 ; Neioton v. Allin, 1 Q,. B. 519.) For the measure of damages for breach of covenant for quiet enjoy- ment, see Child v. Stenning, 40 L. T. 302. Implied undei'taking to repair. In case of tenant from year to year. Sect. 2. — Repairs. In the absence of any express stipulation, there results from the relationship of landlord and tenant an implied undertaking on the part of the tenant to use the property demised in a tenant-like manner — doing proper repairs, the extent of which will depend upon the duration of his term. The implied obligation of a tenant from year to year is to keep the premises wind and water tight [Anworth v. Johnson, 5 0. & P. 239), and to make fair and tenantable repairs ( Cheetham v. Hainpson, 4 T. E. 318 ; Gregory v. Mighell, 18 Yes. 331), as by putting fences in order, or replacing windows or doors that are broken during his occupation, or cleansing drains and sewers. {Russell v. Shenton, 3 Q. B. 449.) But he is not answerable for the mere wear and tear of the premises {Torriano v. Young, 6 C. & P. 8), nor answerable if they are burnt down, nor bound to rebuild if they become ruinous by any other accident {Horse/all y. Mather, Holt, N. P. 7), nor to replace doors and sashes worn out by time, to put a new roof on, or to make similar substantial and lasting repairs {Fer- Digitized by Microsoft® UIGHTS AND LIABILITIES DURING THE TENANCY. 105 guson V. , 2 Esp. 590), or do what are called general repairs. The obligation to repair of a tenant for a term of tenant of years has never been clearly defined, as the ™''^^' question so seldom arises in practice, since leases for years usually contain an express covenant to repair. His duty would seem to be to make such timely reparations as would enable him to give up the premises in the same tenantable condition as when he entered upon them, allowance being made for the natural decay of time. For this purpose, and to prevent them becoming ruinous, it might be his duty to replace principal rafters and tim- bers ; supply new window and door frames ; and to repair the main walls, and do other like sub- stantial repairs. But he would not be liable to make good any injuries resulting from extraordi- nary causes, as the act of Grod by storm or flood. Neither would he be responsible for destruction ^'^f^A by accidental fire, skice it is provided by 14 Greo. 3, tii-e. c. 78, s. 86, that "no action, suit or process what- soever shall be maintained against any person in whose house, chamber, stable, barn, or other build- ing, or on whose estate any fixe shall accidentally begin; nor shall any recompense be made by such person for any damage suffered thereby, any law, usage, or custom to the contrary notwithstanding : provided that no contract or agreement made between landlord or tenant shall be hereby de- feated or made void." By accidental fire is meant one not traceable to any cause, and does not include wilful fires or those caused by negligence. {FilUter V. PMppard, 17 L. J., Q. B. 89.) In the absence of contract there is no obligation NoimpUea on the part of a landlord to put premises into a for landlord habitable condition {ChappcU,\. Gregory, 34 Beav. *» repair, 250), or to do any repairs whatever upon them [Gott V. Gandy, 23 L. J., Q. B. 1 ; 2 E. & B. Digitized by Microsoft® 106 LAW OF LANDLORD AND TENANT. unless the letting is of part of a building. Covenant to repair controlled by the state and nature of the pro- perty, 845), though by neglecting to do so they hecome uninhabitable. {Ardeii v. Piillen, 10 M. & W. 321.) Neither is there any implied covenant by the lessor of two adjoining honses^the occupiers of which are under covenant to repair — that he will keep either house in such state as to enable the covenants with respect to the other to be per- formed. {Colehecli v. Girdkrh' Co., 45 L. J., Q. B. 225 ; L. E., 1 Q. B. D. 234.) A landlord is not bound to rebuild in case of destruction by fire {Pindar v. Ainski/, cited 1 T. E. 312), though he may have covenanted for quiet enj oyment. {Bro wn V. Quilt er, Amb. 619.) In fact, the landlord has no right to go upon the premises if he desired to make repairs. {Barker v. Barker, 3 C. & P. 557.) Where the owner and occupier of a building lets only a portion of it, there would be an implied undertaking to keep the other portions of the building in a proper state of repair. {Carstairs v. Taijlor, L. E., 6 Ex. 217; 40 L. J., Ex. 129; and see Ross v. Feddon, L. E., 7 Q. B. 661 ; 41 L. J., a. B. 270 ; 1 Wms. Saund. 322.) And where there is an agreement for a lease with repairing covenants of a new house, the landlord must finish and deliver the house in a proper state of repair. {Tildcsky v. Clarkson, 31 L. J., Ch. 362.) A lease generally contains an express covenant to repair, usually to be performed by the tenant. Such covenants vary with the ingenuity of the draftsmen, and the construction of each must de- pend upon its particular terms. Moreover, the covenant must be construed in connection with the surrounding circumstances, and is satisfied by a substantial compliance with its terms {Harris v. Jones, 1 M. & Eob. 173), having regard to the age and nature of the buildings {Stanley v. Tow- good, 3 Bing. N. C. 4 ; Mantz v. Goring, 4 Bing. N. C. 451), and the state of repair at the time the Digitized by Microsoft® raCIITS AND I,IA13II,ITIES DURING THE TENANCY. 107 tenant entered. {Ilaldane v. Newcoinh, 12 W. E. 135.) If there were a lease of a new house for a hundred years, with a general covenant to re- pair, and at the end of fifty years a person take an underlease in the same words, the latter cove- nant must be construed with reference to the state of the premises at the time ; for the two covenants, though identical in terms, would not have the same effect. ( Walker v. Hatton, 10 M. & W. 257, per Parke, B.) Where a very old building is demised, and the lessee covenants to repair, it is not meant that the old building is to be restored in a renewed form at the end of the term, or of greater value than it was at the commencement. The lessee is not responsible for such dilapidations as residt from the natural operation of time and the elements. [Gutteridgc v. Munijard, 1 M. & Rob. 334.) But if at the time of demise the pre- mises are old and out of repair, and the tenant agree to keep and deliver up the same in good repair, he is bound to put them in repair as old premises, for he cannot "keep" without putting them in repair, and he is not justified in keeping them id bad repair because he found them so {Pai/m V. Saine, 16 M. & "W. 541; Easton v. Pratt, 2 H. & C. 676 ; Saner v. Biltou, 47 L. J., Ch. 267; L. E., 7 Ch. D. 815) ; and if he covenant to "put" them in habitable repair, this obviously means better repair than when he found them, and binds him to put them into a state that they may be occupied, not only with safety bi:t with reasonable comfort for the purpose for which they are taken. {Belcher v. Mcintosh, 2 M. & Eob. 186.) In an action upon a covenant to repair the of which tenant may give evidence as to the state they mayte were in at the time of the demise. {Burdett v. ^™°- Digitized by Microsoft® 108 LAW OF LANDLOED AND TENAKT. To what re- pairs the covenant applies. To what buildings. Whrn 1o Lxltn-es. How broken. Withers, 7 A. & E. 136 ; Mantz v. Goring, 4 Bing. N. 0. 451.) A covenant to keep in repair premises which include ornamental water would only bind the covenantor to keep the water from bursting its banks, or to keep its sluices in working order, and not to cleanse it. {Bird v. Elices, 37 L. J., Ex. 91 ; L. E., 3 Ex. 225.) A covenant to repair a house would not include laying a new floor on an improved plan {8mcarcl v. Leggatt, 7 C. & P. 613) ; but a covenant to repair the " external parts " of a house includes its boundary walls {Green v. Bales, 2 Q,. B. 225) ; and one to "sub- stantially repair, uphold, and maintain " a house, includes painting the inside. {Monk v. Noyes, 1 C. & P. 265.) A general covenant to repair and keep in repair extends to all buildings erected on the demised premises during the term ; but where there is a particular covenant to repair the Iniild- ings demised, this does not extend to newly erected buildings. {Cornish v. Cleife, 34 L. J., Ex. 19, jjer Channell, B.) A general covenant to repair all buildings then standing or to be erected during the term, was held to extend to buildings erected on the waste lands of the landlord not included in the lease, the court implying a con- tract that the encroachment of the tenant was to be upon the terms of the original lease. {White V. Wcildey, 26 Beav. 17 ; 28 L. J., Ch. 77.) A general covenant to repair extends not only to buildings, but to fixtures which the tenant is not allowed to remove {Thresher v. East London Watcru-orlis Co., 2 B. & C. 608) ; and the cove- nant is broken by the removal of such fixtui-es. {Penry v. Brown, 2 Stark. 403.) A covenant to repair is broken by opening a Digitized by Microsoft® RIGHTS AND LIABILITIES DURING THE TENANCY. 109 door througli the wall into an adjoining house, and keeping it open is a continuing breach. {Doe y. Jackson, 2 Stark. 293 ; Gange v. Lock- wood, 2 F. & F. 115.) But it is not a breach to enlarge windows, open new external doors, and take down an internal partition, where the terms of the lease imply that additions and improve- ments are to be made. {Boe v. Jones, 4 B. & Ad. 126.) If a lessee covenant generally to repair, he Covenantor must rebuild the premises if burned down by reblSid?n accidental fire, or destroyed by lightning or tem- "^^ °' ^''• pest {Bullock V. Bommitt, 6 T. R. 650 ; Pym v. Blackburn, 3 Ves. 34) ; and if he has also cove- nanted to insure to a certain amount, his liability to repair is not Hmited to that amount. {Bighy V. Atkinson, 4 Camp. 275.) If the lessor has insured, he will not be compelled to contribute the insurance money to the rebuilding of the premises, or restrained from suing for his rent until they are rebuilt. {Leeds v. Cheetham, 1 Sim. 146 ; Lofi v. Bennis, 1 E. & E. 474 ; 28 L. J., Q,. B. 168.) But the insurance office may, upon any grounds of suspicion that the persons effecting the insurance have been guilty of fraud or incendiarism, cause the insurance money to be laid out in rebuilding. (14 Geo. 3, c. 78, s. 83 ; Bx parte Gorely, 34 L. J., Bkcy. 1.) But to en- title the landlord to have the insurance money applied in rebuilding the premises, he must make a distinct request to that effect to the insurance office, before they have settled with the tenant. {Simpson V. Scottish Union Insurance Co., 32 L. J., Ch. 329 ; 1 H. & M. 618.) Inasmuch as in the absence of express provision Title to in- in the contract, a purchaser of real estate is not Moneys entitled to the benefit of a policy of insurance, ™th^optfon although the premises be burnt down between the to purchaae. Digitized by Microsoft® 110 LAW OF LANDLORD AND TENANT. date of the contract and completion {Poole t. Adams, 33 L. J., Ch. 639), neitlier is a lessee "with an option to purcliase, upon exercising his option, so entitled. {Edwards v. West, 47 L. J., Oh. 463 ; L. R., 7 Ch. D. 858.) But where a lessee, with an option to purchase, in pursuance of a covenant in the lease, insured the premises, which were also insured by the lessor without the lessee's knowledge in a different oiEce, and upon the premises being burnt down, the loss was ap- portioned between the two offices, it was held upon the lessee electing to purchase, that the insurance money received by the lessor should be taken as part of the purchase-money. {Reynard V. Arnold, 23 W. E. 804 ; L. E., 10 Ch. 386.) In that case, however, it wUl be observed, the lessor had by his own act diminished the sum which the lessee would otherwise have received. {Edwards v. West, supra.) Lessee must It is usual to insert in leases a proviso relieving nohvith- the tenant from liability to repair in case of fire ocou^atfon" °^ other inevitable accident. But this does not bind the lessor to repair ( Weigall v. Waters, 6 T. E. 488), or release the lessee from payment of rent {Monk v. Cooper, 2 Stra. 763), which must be paid, whether or not there is any liability to repair, or any beneficial occupation. {Holtzapffel V. Baler, 18 Ves. 115; Izon v. Gorton, 5 Bing. N. C. 501.) Covenant If a tenant covenant to repair the premises, the condition' Same being first put into such repair by the land- precedent, lord, this creates a condition precedent, and a covenant on the part of the landlord to put them into repair, until the performance of which no liability attaches to the tenant {Coward v. Gregory, 36 L. J., C. P. 1; L. E., 2 C. P. 153; Neale v. Ratcliff, 15 Q,. B. 916); and if the covenant is to repair with materials to be supplied by the Digitized by Microsoft® KIGHTS AND LIABILITIES DURING THE TENANCY. Ill landlord, lie must be ready to supply the necessary materials. {Martijii v. Clue, 18 Q,. B. 661.) Wtere the covenant is to repair after notice, covenant to the tenant does not become liable until the notice nXcc.'*'"''' has been given. {IlorsefaU v. Testar, 7 Taunt. 385.) But if there be a covenant to repair gene- rally, and a distinct covenant to repair after notice, the two are independent {BaijUs \. Le Gros, 4 C. B., N. S. 537), and the landlord is not bound to give the notice mentioned in the second cove- nant before suing on the general covenant. Where, however, the second covenant was to repair after three months' notice, and the landlord gave notice to repair ivithin three months, he was held to have waived his right under the general covenant {Boe V. Meiix, 4 B. & C. 606); but no such waiver would be caused by a notice to repair " forthwith " {Roe V. Paine, 2 Camp. 520), or "in accordance with the covenants." {Few v. Perkins, 36 L. J., Ex. 54; L. E., 2 Ex. 92.) The rule of law is that the occupier, and not Tenant ,T n . . -../'■Tiie liable to the owner oi premises, is prima jacie liable for tim-a pei- damages resulting from a nuisance arising upon n'S^anceor the demised premises, or for injury to third persons damage, or adjoining property from the same being in a ruinous or dangerous condition {Russell v. Shenton, 3 Q. B. 449; Terry v. Ashton, 45 L. J., a B. 260; L. E., 1 Q. B. D. 314; Rrocler v. Saillard, 45 L. J., Ch. 414; L. E., 2 Ch. D. 692; Humphreys v. Cousins, 46 L. J., C. P. 438; L. E., 2 C. P. i). 239; Firth v. Bouling Ironworks Co., L. E., 3 C. P. D. 254; 47 L. J., C. P. 358); although as between himself and the landlord he is not compellable to repair. {Reg. v. Watson, 2 Ld. Eaym. 856.) There are only two ways in which a landlord can be made liable for injury to a stranger by the defective state of premises which are let to a tenant ; first, when he has contracted Digitized by Micro^soft® 112 LAW OF LANDLORD AND TENANT. with the tenant to repair ; or, secondly, when he has let the. premises in a ruinous and improper state. {Nelson v. Liverpool Brewery Co., 47 L. J., 0. P. 675; 25 W. E. 877; Payne v. Rogers, 2 H. Bl. 349; Pretty v. Pickmorr, L. R., 8 C. P. 401; Givinnell v. Earner, 32 L. T., N. S. 835.) But if the tenant was under no obligation to repair, and the defect to the knowledge of the landlord existed at the time of letting, he would be liable {Todd v. Flight, 30 L. J., 0. P. 21), though probably not if the tenant had covenanted to repair. {Per Brett, J., Chvinnell v. Earner, supra.) It has been held that, if the tenant is not bound to repair, and the tenancy is one from year to year, the landlord is liable for damage caused by a permanent nuisance, if it be shown that siace the nuisance, and before the damage, he might have determined the te- nancy and did not ; for to continue a yearly tenancy is equivalent to a reletting at the end of each year. {Gandy v. Jubher, 33 L. J., Q. B. 151 ; 5 B. & S. 78; 9 ib. 15, n.) But a landlord by letting premises in a ruinous condition does not become liable for any damage to the tenant or his guests or customers. {Bobbins v. Jones, 15 C B., N. S. 240.)_ If premises are let for a fixed and definite authori^^to purpose, the landlord is liable for any nuisance that arises of necessity from the use of the premises as contemplated by the demise {Harris V. James, 45 L. J., Q. B. 645 ; 35 L. T., N. S. 240) ; but the landlord would not be liable for a nuisance created by a negligent use of the premises, if it appear that they might be used for the contemplated purposes of the demise, without creating a nuisance. {Pick v. Basterfield, 4 0. B. 783 ; 16 L. J., C. P. 273.) "When a landlord covenants to repair the in- terior of demised premises, notice of want of unless tlie create a nuisance, Covenant by landlord. Digitized by Microsoft® BIGHTS AND LIABILITIES DUKING THE TENANCY. 113 repairs (though not stipulated for) is necessary before he can be sued on his covenant. {Makin V. WatMnson, 40 L. J., Ex. 33 ; L. E., 6 Ex. 25 ; approved in London 8( S. W. Rail. Co. \. Flower, 45 L. J., C. P. 54 ; L. E,., 1 C. P. D. 77.) And such a covenant carries with it a licence to the landlord to enter on the premises, and there remain for a reasonable time to do that which he contracted to do. {Saner v. Bilton, 47 L. J., Ch. 267 ; L. E., 7 Ch. D. 815.) If the landlord covenants to repair there is no implied condition that the tenant may quit if the repairs are not done {Surjjlice v. Farmicorth, 7 M. & Grr. 576), or that he may do the repairs and deduct the amount from his rent. [Weigall v. Waters, 6 T. E. 488.) And a covenant by the landlord in ease of fire to rebuild the premises, and place the same in the state they were ia before the fire, only makes bim Kable to rebuild what he let, and not any additions by the tenant. {Loader v. Kemp, 2 C. & P. 375.) A landlord's remedies for breach are either by Eemedies action upon the covenant or agreement, or by re- repan-. entry for forfeiture, if the lease contains an express proviso for re-entry upon such a breach, but not otherwise. The courts wOl not decree specific per- formance of a covenant to repair {Mosely v. Virgin, 3 Yes. 184) , nor relieve agaiast forfeiture for breach thereof. {Mill v. Barclay, 18 Ves. 56 ; Nokes v. Gihlon, 3 Drew. 681.) A covenant to put in repair can only be broken once for all, and damages thereupon having been recovered, no further action can be brought. {Cowards. Gregory, L. E., 2 C. P. 153; 36 L. J., 0. P. 1.) But if the covenant be to keep m re- pair, the tenant must have the premises iu repair at all times during the term {Luxmore v. Rohson, 1 B. & Aid. 584), and the recovery of damages in K.&L. I Digitized by Microsoft® 114 LAW OF LANDLOKU AND TENANT. Measm-e of damages. one action upon sucL. a covenant is no bar to a sub- sequent action for a continuing breach. {Coivard V. Gregonj, L. E., 2 0. P. 153; 36 L. J., C. P. 1.) The measure of damages in an action for non- repair is not the cost necessary to put the premises into repau', but the injury to the marketable value of the reversion {Mills v. Guardians of East London Union, 42 L. J., C. P. 46 ; L. E., 8 C. P. 79 ; Wil- liams V. Williams, L. E., 9 C. P. 659; 43 L. J., C. P. 382), notwithstanding that the landlord may immediately proceed to demolish the buildiags. {Ban-lings v. Morgan, 18 C. B., N. S. 776.) Custom of country defined. Sect. 3. — Cultiration. Obligation Thcrc is an implied promise on the part of according to every tenant of a farm to manage it in a husband- tocuBtom -^g manner in accordance with the custom of the country. country {Poioley v. Walker, 5 T. E. 373), and an injunction would be granted to restraia a tenant from farming otherwise. {Onslow v. , 16 Yes. 173.) The obligation to farm in accordance with the custom of the country means that the tenant must conform to the approved usages of husbandry in the district where the land lies, under circum- stances of a like nature. {Legh v. Seicett, 4 East, 154.) By "custom" is not meant some- thing satisfying the strict legal meaning of that term, e. g., it need not be immemorial; it is suffi- cient if it be shown to be the usage of the neigh- bourhood at the time of the alleged breach {Daily V. Hirst, 1 B. & B. 224) ; but mere usage on a particular estate, or the property, however exten- sive, of a particular iadividual, wiU not be sufficient. ( Womersley v. Dally, 26 L. J., Ex. 219.) And the custom must be proved actually and not ia- Digitized by Microsoft® EIGHTS AND LIABILITIES DUKING THE TENANCY. 115 f erentially ; for it is not enougli to show a custom eight miles away, unless it be proved to extend to the place in question. (Co. Litt. 270 b (n. 228). To show the custom of the country in a par- ticular place, it is not necessary to prove an uniform course of husbandry there estabHshed ; for it is contrary to the custom for a tenant to tUl half his farm in a district where no other farmer tills more than a third, and many tUl only a fourth. {Legh v. Heicett, supra.) A. custom to be supported must be certain and Mustbecer- reasonable in itself . The reasonableness of a custom reasonable, is a matter of law for the court, not one of fact for a jury. {Ti/son v. Smith, 9 A. & E. 421 ; Brad- burn v. Foleij, L. E., 3 C. P. D. 129 ; 47 L. J., C. P. 331.) Where a custom is proved to exist it is appH- cu.?tom cable to all tenancies in whatever way created, unless ex- whether verbal or in writing, unless expressly or stipulation. impliedly excluded by the written terms them- selves. ( Wilkins V. Wood, 17 L. J., Q. B. 319.) It is, however, excluded by any stipulations in the instrument of demise, which are inconsistent with the custom ( Webb v. Flummcr, 2 B. & Aid. 750 ; Roberts v. Barker, 1 Cr. & M. 808; Clarke v. Roystone, 13 M. & W. 752), but only so far as those stipulations are inconsistent with it. [Hutton v. Warren, 1 M. & W. 466 ; Holding v. Pigott, 7 Bing. 465 ; Muneey v. Dennis, 26 L. J., Ex. 66.) Where by a lease the tenant had the use of depasturing cows on certain lands described as " summer leazes," and " after grass," respectively, from 2nd February to 17th November, evidence was held admissible of a custom of the country that the lessor should, notwithstanding such a lease, put cattle of his own on the lands called " summer leazes," up to the 12th May, it being regarded as evidence of what meaning the term Digitized by Microsoft® 116 LAW OF LANDLORD AND TENANT. " summer leazes " liad according to the custom of the country. (Tudcjaij v. Sampson, 30 L. T., N. S. 262.) It would be entirely outside the scope of this work to give the customs which obtain in various parts of the country. The more important will be found stated in Cooke on Agricultural Tenancies, 53 et seq. Tenant's It is the tenant's duty to preserve the ancient p?Me™ boundaries of the land demised to him ; and not boimdaries. j^y ^j^g removal of walls, fences, or the Kke, to confuse the landlord's property with his own. (Att.-Gen. v. Fullerton, 2 Ves. & B. 263; Att.- Gen. V. Stephens, 6 De G., M. & Gr. ill ; Brown v. Wales, L. E., 15 Bq. 142.) If the tenant faU to keep the boundaries distinct, the landlord may bring an action to ascertain the boundaries, even during the contiauance of the demise. (Spike v. Harding, L. E., 7 Oh. D. 781; 47 L. J., Oh. 323.) All encroachments made by the tenant during his tenancy are presumed to be made for the landlord's benefit, unless the contrary appear {Wliitmore v. Humphries, L. E., 7 0. P. 1) ; and this rule applies even to encroachments made by a copyhold tenant upon the wastes of the manor. {Att.-Gen. V. Tomline, L. E., 5 Oh. D. 750 ; 46 L. J., Oh. 654.) To maintain Under the obKgation to farm in a husbandlike ' manner is included the duty of maiataining the fences of the property demised. {Cheetham v. Hampson, 4 T. E. 318; Whitfield v. Weedon, 2 Ohitt. 685.) For this purpose the tenant is en- titled to reasonable estovers (Co. Litt. 41 b), and may cut timber to keep the walls, pales, fences, hedges, and ditches as he found them, but he can make no new ones. The hedge dividing two fields is presumed at law to belong to the owner of the field in which Digitized by Microsoft® fences. RIGHTS AND LIABILITIES DURING THE TENANCY. 117 the ditch is not ; for the ditch, and not the hedge, marks the extremities of adjoining properties. ( Vowles V. Miller, 3 Taunt. 138 ; Hunt on Fences, 43.) If there are two cross ditches, one on each side, the right to the hedge must be determined by acts of ownership. (lb.) Such hedges, there- fore, as by these tests belong to the property he holds, the tenant should keep in repair; and where there is a prescriptive right (for there is no such right at common law) of adjoining owners or occupiers to have fences kept ia repair {Laicrence V. Jenkins, 42 L. J., Q. B. 147 ; L. E., 8 Q. B. 274), the tenant would be liable for any damage resulting from their being out of repair {Cheethavi V. Sampson, 4 T. E. 318) and could have no claim for damages and trespasses resulting from ine£B.cient hedges being maintained. ( Wiseman v. Booker, 38 L. T. 292; L. E., 3 0. P. D. 184.) There is no obKgation thrown by law upon a landlord, as between himself and his tenants, to keep up his fences, so as to prevent the tenants' cattle from straying into the landlord's adjoining property. [Erskine v. Adeane, L. E., 8 Oh. 756 ; 42 L. J., Ch. 835.) Usually a tenant's obligation in respect of cul- stipulations tivation is defined by his lease, the terms of which tfvationia are often in accordance with the custom of the ^'^'*^'^^- country; and where, either by the terms of a Binding' on written demise, or the custom of the country, a Lecntion™ tenant is bo\md to consume on the premises the straw, grass, and other produce, a sheriff, seizing under a process of any court, can only sell the same to be consumed on the premises. (56 Geo. 3, c. 60, ss. 1 — 5.) No assignee of any bankrupt, nor any assignee under any biU. of sale, nor any purchaser of the goods or crop of any person employed in husbandry on any lands let to farm, shaU take, use, or dispose of any hay or other Digitized by Microsoft® 118 LAW OF LANDLORD AND TENANT. produce, or any manure or other dressings intended for such lands and being thereon, in any other manner than such bankrupt or other person so employed in husbandry ought to have taken, used, or disposed of the same. (Sect. 11.) This latter section is not confined to sales under an execution, but applies to an ordinary sale by the tenant himself, and a purchaser from the tenant is bound by the terms of the lease under which the tenant holds. {Wilmot v. Rose, 23 L. J., d. E. 281 ; 3 E. & B. 563.) But notwithstanding a tenant may, by the terms of his lease, be bound to con- sume hay, straw, and other crops on the premises, this statute does not entitle the landlord selling under a distress to sell subject to a condition that they shall be so consumed. {Hawkins v. Walrond, 45 L. J., 0. P. 772; L. E., 1 C. P. D. 280.) An injunction will be granted against any acts done in violation of farming covenants (Brury v. Moliiis, 6 Yes. 328), or of the terms of an agree- ment upon which the tenant impliedly holds {Crosse v. Ducket's, 21 W. E. 287); but not a mandatory injunction to compel a lessee to culti- vate ia a husbandlike manner, in accordance with the covenants in a lease. {Musgrave v. Horner, 23 W. E. 125.) r Dream "^^^ statute 38 & 39 Vict. c. 92, s. 19, entitles of, under 38 the landlord, when claims are made by the tenant for compensation under that act, to obtain, by counterclaim, compensation for breach of a cove- nant or other agreement connected with the contract of tenancy. (See 2Mst, Chap. IX., Sect. 4.) Enforced by injunction. Kemedies for 'breach & 39 Vict, c. 92. Waste de- fined. Sect. 4. — Waste. Waste is defined as the spoil or destruction in houses, gardens, trees, or other corporeal heredita- Digitized by Microsoft® RIGHTS AND LIABILITIES DURING THE TENANCY. 119 ments, to the disherison of him that hath the remaiader or reversion in fee simple or fee tail. (^ Bl. Com. 281.) - It can only be committed of the thing demised, and, therefore, cutting trees excepted from the demise is not waste. {Goodright V. Vivian, 8 East, 190.) It may be either volun- tary, consistiug of the tenant doing something ■wluGh he ought not to do, or permissive, consist- ing of his omitting to do something -which he pught to do. Tenants of all kinds are Kable for voluntary waste. Tenants for life and for years are liable for permissive waste ( Yellowly v. Gowei; 11 Ex. 294; Rarnett v. MaUland, 16 M. & W. 257) ; but tenants at will {ib.), and tenants from year to year [Torriano v. Young, 6 C. & P. 8), are not. A lessee liable for waste is liable by whom- soever it is done, for he had the power to withstand it. {Greene v. Cole, 2 Wms. Saund. 259 b (n.) Any lasting damage to the freehold or inherit- Voiuntaiy ance, or anything which alters the nature of the ^'^ ^' property, so as to render the evidence of owner- ship more difficult, or destroys or weakens the proof of identity, is in strictness voluntary waste. (See judgment iu PhiUipps v. Smith, 14 M. & W. 589; Smyth v. Carter, 18 Beav. 78.) Therefore, in respect of if a lessee pulls down a house demised to him, or '"^'^^^■ removes any part thei'eof, as the windows, doors, waiascot, or other fixtures, which, though affixed by himself, are not at law removeable, or if he un- roof biiildings, or alter one kind of building into another, as a com mill into a fuUing mill, or a hall into a stable, or throw two rooms into one, or pull down a building and rebuild it on a greater or less scale than before, even though of greater value {Cole V. Green, 1 Lev. 309), or build a new house where none was before (but see Jones v. Chappell, L. E., 20 Eq. 539; 44 L. J., Ch. 658), or having built it suffers it to decay, in. each of these cases he is guUty of waste. (2 EoU. Abr. 815 ; Oo. Litt. Digitized by Microsoft® 120 LAW OF LANDLOED AND TENANT. 53 a; 2 Bl. Com. 282.) It has been held that the erection of new buildings is not waste, if the terms of the lease show that such erection was contemt plated, as where there is a covenant to keep all future buildings in a state of repair. {Jones v. Chappell, L. E., 20 Bq. 539 ; 44 L. J., Oh. 658.) ; Unless there is a negative covenant not to do the act complained of, the courts will not grant an iaj unction against meliorating waste, but leave the reversioner to his claim for damages. {Boherty, v. AUman, 26 W. E. 613; L. E., 3 App. Gas. 709.) Of land. It is waste to sow land with any pernicious crop. {Pratt v. Brett, 2 Madd. 62.) So to dig and carry away the soil, to dig clay, to ojien mines, gravel pits, or the Hke, or to essentially change the face of the soil, or the nature of its products, as by converting arable land iato pasture, or pasture to arable, turning gardens into tillages, sowing grain in hop gardens, or the like. (Com. Dig. "Waste," (D 4) ; Simmons v. Norton, 7 Bing. 648.) But if pasture be converted into tillage for the improvement of the soil, it is not waste; nor is it if the lands have been sometimes pasture and sometimes tillage. (2 Eoll. Abr. 815.) Nor is it waste to dig trenches for drawing ofE water {Moyle V. Mayle, Owen, 67), or to dig ia mines or pits already opened, unless old and abandoned, or abandoned for the benefit of the estate {Bagot v. Bagot, 32 Beav. 509 ; 33 L. J., Ch. 116), nor to open new mines where mines are expressly named in the demise. But if there be a lease of land and mines, and there be a mine open and another unopen, the lessee cannot work or open the im- opened mine. {Ckgg v. Rowland, L. E., 2 Eq. 160; 35 L. J., Ch. 396.) Of teees. Osk, ash and elm trees of twenty years' growth are in aU places timber {Aiihrey v. Fisher, 10 East, 446; Whittg v. Dillon, 2 F. & F. 67), Digitized by Microsoft® RIGHTS AND LIABILITIES DURING THE TENANCY. 121 and other trees are by the custom of the country in some places considered timber, as being there used for building purposes. {Chandos v. Talbot, 2 P. Wms. 606.) It is waste in a tenant to cut down timber trees, or such as by custom are accounted timber trees (Co. Litt. 53 a), or to lop them so as to cause them to decay, or after cutting underwood to sufEer the young germens to decay, or to cut trees growing for the shelter of the house {Bunn y. Bryan, Jr. Eep., 7 Eq. 143 ; 21 W. E.., Dig. 119), or to remove or injure a quickset fence. But it is not waste to cut trees which are not timber either by the general law or by custom, and if timber trees are dead they may be cut do'^, and so may the imderwood. More- over, a tenant (unless restrained by covenants or exceptions, which is usual) may cut down timber for necessary botes, as house-bote, hedge-bote, &c. (2 Bl. Com. 281), but not to make new houses or new fences. It is waste in the tenant to cut down fruit trees ; but if they are thrown down by tem- pest, he may afterwards root them up. (2 Eoll. Abr. 817.) So it has been held waste for an out- going tenant to remove a border of box planted by him {Empson v. Soden, 4 B. & Ad. 655), or to plough up strawberry-beds in full bearing for which he had paid the person who occupied before him. ( WatJierell v. Soicells, 1 Camp. 227.) "Waste may be done in respect of animals, &c., of animals. by taking so many of them as to unstock the park, warren, dove-cote, fish-pond or pool in which they are kept, or doing any act by reason of which the stock is dimiaished. (Co. Litt. 53 b.) A tenant commits permissive waste in omittiag Permissive to keep the buildings in tenantable repair, as by ^'^''^' sufEeriag the house to be uncovered, whereby the timbers decay, or permitting the walls to decay for want of plastering ( Vam v. Barnard, cited in Digitized by Microsoft® 122 LAW OF LANDLORD AND TENANT. Non-culti- vation not ■waste. Remedies for waste. Under 38 & 39 Vict, c. 92. Fyne v. Dor, 1 T. E. 55), or the foundations to te sapped by leaving a moat or ditcli unscoured. Merely suffering the house to remain unroofed (provided it were so at the commencement of the tenancy) will not he waste (Co. Litt. 53 a) ; hut then the tenant must take the consequences of any other part thereby becoming ruiuous or decayed. To permit walls built to exclude water to remain in such a dilapidated state as to cause the lands to be overflowed and injured, is waste. (Co. Litt. 53 b.) It is not waste, either voluntary or permissive, to leave land uncultivated (Sution v. Warren, 1 M. & W. 472,ijer Parke, B.), but it would be bad husbandry. The landlord's remedy for waste is either by action for damages or for an injunction ; but it seems that an injunction vsdU not be granted against permissive waste. {Poicys v. Blagrave, 24 L. J., Ch. 143.) The proper remedy ia such a case is by an action for damages ; and an action will lie for acts of waste done by the tenant while holding over after the expiration of a notice to quit. {Burchell v. Hornsby, 1 Camp. 360.) By 38 & 39 Yict. c. 92, s. 19, where a tenant who commits or permits waste claims compensation under that act, the landlord is entitled to obtain by counterclaim compensation for waste committed or permitted not more than four years before the determination of the tenancy. (See post. Chap. IX., Sect. 4.) Covenant to reside on the pre- mises. Sect. 5. — Restrictions on User of the Premises. A covenant by the lessee that he and his family will reside on the demised premises during the continuance of the term is good {Ponsonby v. Digitized by Microsoft® EIGHTS AND LIABILITIES DURING THE TENANCY. 123 Adams, 2 Bro. P. C. 431 ; Doe v. Clarke, 8 East, 185), and is broken by the lessee doing any act whereby his residence there may become impos- sible. (See Boe v. Saivke, 2 East, 481.) So a covenant is valid binding the lessee to carry on To carry on a specific trade on the premises ( Wadham v. Post- teadrthere. master- General, 40 L. J., Q,. B. 310 ; L. E., 6 Q.. B. 644), or to keep a buUding open at all times of the year as an inn or a shop for the sale of a particular class of goods. But a covenant not to carry on any other than a certain trade on the premises does not amount to an affiimative covenant to carry on that trade (see Boe v. Guest, 15 M. & W. 160) ; neither would the fact of premises being taken for a public-house imply a covenant to use the premises so as not to produce a forfeiture of the licence. {Maw v. Hindmarsh, 28 L. T., N. S. 644.) And even an express cove- nant by the lessee of a public-house that she would not " do, omit, or permit or suffer to be done any act, matter, or thing whatsoever that could or might affect, lessen, or make void either or any of the licences for the time being granted to the public-house," was held not to be broken by a conviction under the Licensing Acts which was not indorsed on the licence. ( Wooler v. Knott, L. E., 1 Ex. D. 124, 265 ; 45 L. J., Ex. 313, 884.) To meet such a case the lease should expressly provide for a forfeiture if the lessee " shall commit any offence against the laws for the time being affecting innkeepers. {lb. ; 24 W. E. 1004.) A covenant by a lessee to " use his best endeavours to extend the custom" of a beerhouse does not bind him to live on the premises and continually conduct the business in person. (Moore v. Robinson, 48 L. J., Q. B. 156.) In a lease of unopened miaes it is usual to bind To work the lessee to make due search for the minerals, ™"^^" and it is a matter of fact for a jury whether he T,»a^^-nQsri CW7/>««/z^.c^ftfMsf#®13 East, 22.) 124 LAW OF LANDLORD AND TENANT. Meaning of " trade" and " busi- ness" in restrictive covenants. "Offensive' trades. Where a tenant agreed to work a coal mine so long as it was fairly workable, and there were coals in the mine, but of such a description that it would not pay to work them, it was held that the tenant was not bound to work the mine [Jones v. Shears, 7 C. & P. 346 ; Quarrington v. Arthur, 10 M. & W. 336) ; but it would be otherwise if there was an absolute and imqualified covenant to work the mine. [Jervis v. Tomkinson, 1 H. & N. 195 ; 26 L. J., Ex. 41.) A covenant to work continuously will not be implied from a covenant to work pro- perly [Jegon v. Vivian, 40 L. J., Ch. 389 ; L. E., 6 Oh. 742), and a covenant to work in " the best and most effectual manner, to the best advantage and according to the usual practice of carrying on col- lieries with eilect," is satisfied by adopting the usual practice, whether the best possible mode or not. (Abinger v. Ashton, L. E., 17 Eq. 358.) The words " trade " and " busiaess " in a cove- nant restrictive of the use of premises are not synonymous. A trade is limited to buying and selling (Doe v. Sird, 2 A. & E. 161), but business is much more extended. {Boe v. Keeling, 1 M. & S. 100.) Thus, keeping a school {lb. ; Kemp v. Sober, 1 Sim.N. S. 517) or a private lunatic asylum {Boe V. Bird, supra) is a business, though not a trade. (And see Bramioell v. Long, 27 W. E. 463.) The meaning of a covenant not to carry on an " offensive" or " noisome" trade, without enume- rating any in particular, would depend in a great measure upon the situation of the premises, and those words would not comprehend any of such trades as were carried on upon the premises at the time of granting the lease. {Gutteridge v. Munyard, 1 M. & Eob. 334.) The trade of a coachmaker is not an " offensive " one {Bennett v. Sadler, 14 Ves. 626) ; and it is doubtful whether a mock auction can be so considered. {Moses v. Taylor, 11 W. E. 81.) A covenant not to carry on "any -Di^i^s , O . . 1. .1 -^ , of a com- court Or suDject to tne supervision oi the court, To^dup^ any distress put in force against the estate or etfects of the company after the commencement of the winding up shall be void. (25 & 26 Vict. Digitized by Microsoft® DISTRESS. 171 c. 89, s. 163.) The eourt may, under sect. 87 of the act, give leave to proceed with a distress if it think fit. {Re Exhall Coal Mining Co., 33 L. J., Oh. 596, n. ; 4 De G., J. & S. 377.) Leave wiU not be given to distrain for rent which has accrued due before the winding up ; as to such the landlord must prove in the winding up. {Re North Torh- shire Iron Co., L. E., 7 Oh. D. 661 ; 47 L. J., Ch. 333 ; Re Coal Consumers'' Association, L. E,., 4 Ch. D. 625 ; 46 L. J., Ch. 501.) As to rent accrued after the order for winding up, leave has been re- fused where upon the evidence it was considered the liquidator had retained possession of the pre- mises for the benefit of all parties, but granted where the liquidator has retained possession merely for the convenience of winding up. {Re Lundij Granite Co., L. E., 6 Ch. 462; 40 L. J., Ch. 688 ; Re North Yorkshire Iron Co., siqyra.) But the court has power to restrain a distress only where the company is the tenant of the person dis- traioing and not where the company is merely in possession by leave of the tenant, or the company's goods are upon the tenant's premises and are there taken in distress, unless the party distraining is a creditor of the company. {Re Lundy Granite Co., supra; Re Traders' North Staffordshire Carrying Co., 44 L. J., Ch. 172 ; L. E., 19 Eq. 60 ; Re Regent United Service Stores Association, 47 L. J., Ch. 677 ; L. E., 8 Ch. D. 616.) Where the company being wound up is the lessee of property for an unexpired term, the land- lord's claim in respect of future rent is a claim of a certain and ascertained amount (25 & 26 Yict. 0. 89, s. 158) ; and where th^e company is solvent the landlord is entitled to have set apart to indem- nify him such a sum as by means of principal and interest will cover all future payments of rent during the term. {Oppenheimer v. British and Digitized by Microsoft® 172 LAW OF LANDLORD AND TENANT. Foreign Exchange, 8fc. Bank, 46 L. J., Ch. 882 ; L. E., 6 Ch. b. 744; Re Eaytor Granite Co., . L. K, 1 Oh. 77; 35 L. J., Ch. 154.) Where dis- By agreement the tenant may give the landlord made™"^ ^ the powBr to distrain upon other lands of the tenant than those out of which the rent issues, and such agreement will bind both the tenant and his assigns. {Daniel v. Siepneij, L. E., 9 Ex. 185 ; 22 W. E. 662.) But independently of con- tract the general rule is that a distress can only be made of goods found upon some part of the premises out of which the rent issues. Thus, where there was a demise of a wharf on the river Thames, but not of any soil of the river, it was held that the landlord was not entitled to distrain barges lying in the river and fastened to the demised premises by ropes, as they were not upon the premises. {Capel v. Buszard, 6 Bing. 150 ; but see GiUingham v. Gwijer, 16 L. T., N. S. 640.) But upon any part of the demised premises dis- tress may be taken for the whole rent. If several parcels of land are let to the same person under separate demises, and rent is due upon more than one, a joint distress cannot be taken. {Rogers v. Birliinire, 2 Stra. 1040.) A distress cannot be taken " on the king's highway nor in the common street." (52 Hen. 3, c. 15.) To the general rule above stated there are three exceptions : — Cattle on 1. A landlord may distrain for arrears of rent common. ^-j^^ cattle Or stock of his tenant feeding upon any common appendant or appurtenant or in any way belonging to the premises demised. (11 Geo. 2, c. 19, s. 8.) Cattle 2. If the landlord coming to distrain see the umii^B- ° tenant's cattle on the premises, and the tenant, to tress. prevent the distress, drive them off the premises, the landlord may make fresh pursuit and seize Digitized by Microsoft® DISTRESS. 173 ttem in the highway or in any other place off the lands demised. But if the cattle of their own accord go out of the lands demised or into the highway within his view he cannot pursue them ; neither can he if they be driyen off the lands for any other purpose than to avoid distress. (Co. Litt. 161 a.) 3. Where the tenant of any messuages, lands, Fraudulent tenements or hereditaments ia respect of which '^™°™' any rent is reserved shall fraudulently or clandes- tiaely convey away or carry off or from such pre- mises his goods or chattels to prevent the landlord from distraining the same for arrears of rent so reserved, the landlord or any person by him em- powered may, idthin the space of thirty days next ensuing the removal of the goods, take and seize them as a distress wherever they may be found (11 Greo. 2, c. 19, s. 1) : provided, however, that they have not before such seizure been sold bona fide and for a valuable consideration. (Sect. 2.) If it be necessary to break open any door in order to seize them, the landlord in the daytime may do so, first calling to his assistance the constable or other peace oificer of the hundred, parish or place where the goods are concealed, and, in the case of a dwelling-house, oath being first made before a justice of the peace of a reasonable ground to suspect that such goods are therein. (Sect. 7.) The statute only applies where the removal took Cases to place on or after the day when the rent became Geo" 2, 0. 19, due {Handy. Vaughan, 1 Bing. N. 0. 767; Dihhle ''pp'^^'- V. Boicater, 2 E. & B. 564) ; where the goods were those of the tenant, and not of a stranger {Thorn- ton V. Adams, 5 M. & S. 38 ; Fletcher v. Mariilier, 9 A. & E. 457) ; and where no sufiicient distress remained on the premises, after the removal of which the onus of proof lies on the landlord. {Parry v. Duncan, 7 Bing. 243; ib., M. & M. 533; Digitized by Microsoft® 174 LAW OF LANDLOKD AND TENANT. tut see Gillam v. Arktm-igM, 16 L..T. 88.) The statute, however, applies where the removal, though not clandestine, is fraudulent, which is a question for the jury. (Opperman v. Smith, 4 D. & Ei. 33.) The landlord must show that the goods were removed with a view to elude a distress {Parry v. Duncan, supra) ; and even if the tenant admit that, it would seem to be still a question for the jury whether the removal was fraudulent or not VTithin the statute. {John v. Jenkins, 1 Cr. & M. 227.) If the landlord have parted with his reversion, he cannot distrain under the statute. {Ashmore v. Sardtj, 7 0. & P. 501.) By the same statute it is further provided, that if the tenant shall fraudulently remove his goods as aforesaid, or if any person shall wiLfully and knowingly aid or assist such tenant in such frau- dulent conveying away of goods, or iu concealing the same, aU and every the person so offending shall forfeit and pay to the landlord double the value of the goods by him carried off or concealed, to be recovered by action. (11 Geo. 2, c. 19, s. 3.) Where the value of the goods so removed does not exceed 60/., the landlord may take summary pro- ceedings for recovering double value, by complaint before two justices of the peace. (Sect. 4.) This latter remedy is alternative, and does not prevent the landlord proceeding by action though the value of the goods be under 50/. {Bromley v.SoIden, M. & M. 175), and although he has made complaint before the magistrates, which he afterwards aban- doned. {Horsqfall v. Davy, 1 Stark. 169.) If a creditor, with the consent of the debtor, remove goods from the premises iu payment of his debt, although with knowledge of the rent beiug in arrear, he does not incur the penalty. {Bach v. Meats, 5 M. & S. 200.) Howadis- The landlord may distraia personally or by his made. Digitized by Microsoft® DISTRESS. 175 agent or bailifE. It is usual, but, except in the case of a corporation aggregate, not necessary, that the bailiif have a written authority. {Carij V. Matthetvs, 1 Salk. 191; Handle v. Deane, 2 Lutw. 1496.) Neither is it necessary even that the bailifE have an antecedent authority ; it is sufficient if the landlord recognize and adopt his act. [TrecilKan V. Pine, 11 Mod. 112.) The person distraining may open an outer door Entry, in the usual manner of access, as by liftiag a latch, turning a key, or drawing back a bolt {Ryan v. Shikock, 21 L. J., Ex. 65 ; 7 Ex. 72) ; but if the door is fastened, it cannot, except in the case of a fraudulent removal {ante, p. 173), be broken open. {Semapie's case, 1 Sm. L. C. 105, 7th ed.) Even the outer door of a bam or stable may not be broken open. {Brown v. Glenn, 16 Q,. B. 254 ; 20 L. J., Q. B. 205.) But if the outer door is open, an inner door or lock may be broken open. {Browning v. Bann, Bull. N. P. 81.) Where, however, an entry has once been made, the dis- trainer, if forcibly expelled, may procure the assistance of a peace officer and break open the outer door to renew the distress, even after the lapse of three weeks. {Eldridge v. Stacey, 15 C. B., N. S. 458 ; 12 W. E. 51.) So also, where the man in possession voluntarily goes away for a temporary purpose, and on his return finds the door locked [Bannister v. Syde, 2 E. & B. 627 ; 29 L. J., Q. B. 141) ; but not after the lapse of several days. {Russell v. Rider, 6 0. & P. 416.) Entry may be made through an open window, but not through a window which is shut, although not fastened. {Nash v. Lucas, L. E., 2 Q,. B. 590 ; Eancock v. Austin, 32 L. J., C. P. 252.) The person distraining may climb over a fence to gain access by an open door. {Eldridge v. Stacey, supra.) -• Digitized by Microsoft® distress. 17 Q LAW OF LANDLOED AND TENANT. Seizure. To Complete tlie distress a sei2m?e is necessary. This is usually done by taking hold of some per- sonal chattel, and declaring that it is taken as a distress in the name of all the goods, or so much thereof as may be necessary to satisfy the rent. (Bod V. Monger, 6 Mod. 215.) But any act or words expressive of an intention to distrain wiU. suffice {Hutchins v. Scott, 2 M. & W. 809) ; thus, refusing to allow goods to be removed until the rent be paid {Wood y. Nimn, 5 Bing. 10 ; Cramer V. Mott, 39 L. J., Q. B. 172) ; and walking round the premises and leaving a written notice that certain goods lying there are distrained, and will be appraised and sold if not replevied, and going away without leaving anyone in possession {Sicann V. Falmouth, 8 B. & C. 456), have been held suffi- cient to constitute a seizure. Notice of After the seizure an inventory should be made of the goods intended to be comprised in the distress. A copy of this, with a notice (usually written at the foot of the inventory) of the fact of the distress having been made, with the cause of such taking, must be served on the tenant person- ally, or left at the chief mansion-house or other most notorious place on the premises charged with the rent distrained for. (2 Wm. & M. sess. 1, c. 5, s. 2.) This notice must be in writing (Wilson v. nightingale, 8 Q,. B. 1034), and should state the amount of rent due (though the landlord is not bound by that statement), and distinctly specify the goods distrained (Kerb?/ v. Harding, 6 Ex. 234; Wakeman v. Lindseij, 14 Q,. B. 625), the time when they will be appraised and sold unless replevied or the rent and charges satisfied, and, if the distress be impounded off the premises, the place where impounded. It need not state when the rent became due (Moss v. Gallimore, 1 Doug. 279) ; and omitting to state that the goods are Digitized by Microsoft® DISTflESS. 177 impounded will not make the impounding void. {Tennant y. Field, 8 E. & B. 336.) The want of notice does not render the distress invalid, but it makes it irregular to seU. (Trent v. Hunt, 22 L. J., Ex. 318.) As five days must elapse before appraisement impouna- and sale of the distress, it is the landlord's duty ™*' to keep the goods safely, and for this purpose to impound them. They may generally be either removed to a pound off the premises or im- pounded on the premises. The exceptions to this general rule are, sheaves or cocks of com, or corn loose or in the straw or hay, ia which case a re- moval from the premises is prohibited (2 W. & M. sess. 1, c. 5), and growing crops which can only be removed when ripe and cut, and there is no proper place on the premises whereia they can be placed. (11 Geo. 2, e. 19, ss. 8, ,9.) A pound is either overt (open overhead) or Pound muat covert (close overhead). Cattle may be impounded to seomTthe in a pound overt, but furniture and goods liable ^^g'*''^ to be damaged by wet or weather, or be stolen, must be placed in a house or other pound covert. (Co. Litt. 47 h.) As impounding is for safe cus- tody, the landlord is bound at his peril to take care that the place in which he impounds the distress (even though it be in a public pound) is in a fit and proper state, and he is liable for the loss of or injury to the distress if it is not. {Bignell v. Clark, 29 L. J., Ex. 257; Wilder v. Speer, 8 A. & E. 547.) If cattle are tied in the pound and strangle themselves, the landlord wiU be liable ; but he is not liable if they die by the act of God, and ia that case he may distraia agaia. [Vasper v. Edclowes, 1 Ld. Eaym. 719; Bac. Abr. "Dis- tress" (D.) The landlord acquires no property in the dis- Distress not tress, and it is an abuse of his power if he use the ^ ^^ ' E. & L. N Digitized by Microsoft® on the pre- mises. 178 LAW OF LANDLORD AND TENANT. distress, except in the case of milcli cows, which may he milked. If the landlord ahuse a distress hy working it the owner may interfere to prevent it, without being hahle for poundbreach or rescue. {SmUh V. Wright, 6 H. & N. 821; 30 L. J., Ex. 313.) Impounding Formerly a distress could only he impounded "" * ° ™°~ on the premises with the consent of the tenant ; but by 11 Geo. 2, c. 19, s. 10, it was enacted that it shall be lawful for any person lawfully taking any distress for any kind of rent to impound or otherwise secure the distress so made, of what nature or kind soever it may be, in such place or on such part of the premises chargeable with the rent as shall be most fit and convenient for the impoxmding and securing such distress. And now distresses are usually impounded on the premises. The landlord ought not to deprive the tenant of the whole house, but should put all the goods seized into one or more rooms and lock them up, unless the tenant consent to their being left in their ordinary position, of which consent very slight evidence will be sufficient. {Washhorn v. Black, 11 East, 405, n.; Woods v. Durraiif, 16 M. & W. 149.) The whole of the premises can- not be locked up; the goods ought rather to be removed. {Smith v.Ashforth, 29 L. J., Ex. 259.) Cattle may be impounded in the open field {Castle man v. Hichs, 1 Car. & M. 266) ; and where the landlord's agent went into a field where the tenant's cattle were feeding, and placed his hand upon one of the beasts, saying he dis- trained the whole for the rent due, counted them, and went away, and next morning left with the tenant a notice stating that he had distrained the cattle thereunder mentioned, and had impounded them on the premises, this was held to constitute an impounding. {Thomas v. Harries, 1 M. & Gr. 695.) Digitized by Microsoft® DISTRESS. 179 By the common law the landlord in removing cattienotto the distress might have impounded it where he outoAhe liied. But by 1 & 2 Ph. & M. c. 12, s. 1, no ^™*^'=^- distress of cattle shall be driven out of the hun- dred, rape, wapentake or lathe where taken, except to a pound overt within the same shire, not above three miles distant ; and no cattle or other goods distrained shall be impounded in several places on pain of a penalty of 51. and treble damages. If for an entire rent out of contiguous lands in different counties the landlord distrain cattle in both counties, he may drive them all into one county; though it is otherwise if the two counties do not join. ( Walter v. Riunhal, 1 Ld. Eaym. 53.) By 12 & 13 Yict. c. 92, every person who Liability of 1 1 ^ ' i-i* 1 person im- impounds or causes to be impounded m any pound pounding or receptacle of the like nature any animal, is ^aterrf"'"^ bound under a penalty of twenty shillings to animals. provide and supply during the confinement a suiScient quantity of fit and wholesome food and water to such animal. (Sect. 5 ; Darqan v. Davies, 46 L. J., M. C. 122 ; L. E., 2 Q. B. D. 118.) If the animal continues to be confined without fit and sufiS.cient food for more than twelve successive hours, any person may from time to time, as often as necessary, enter into the pound and supply the animal with fit and sufficient food and water with- out being liable to any action or proceeding by reason of the entry; the reasonable cost of the food and water is to be paid by the owner before it is removed to the person supplying it, and is reco- verable as a penalty under the act by summary proceedings. (Sect. 6.) It was doubtful whether this act gave any remedy to the person 'im- pounding for the recovery of compensation for food and water provided, and moreover it gave no power to sell the animal ; and therefore 17 & 18 Vict. c. 60, s. 1, provides that every person who n2 Digitized by Microsoft® 180 I.AW OF LANDLORD AND TENANT. impounds or confines any animal, and supplies it with food and water as in 12 & 13 Yict. c. 92, mentioned, shall be entitled to recover from the owner not exceeding double the value of the food and water in the manner provided by that act for the recovery of penalties; and every person who supplies such food and water may, if he think fit, instead of proceeding for the recovery of the value of it, sell any animal impounded openly at any public market (after seven clear days from the impounding, and after having given three days' public printed notice) for the most money that can be got for the same, and may apply the pro- duce in discharge of the value of the food and water, and the expenses of the sale, rendering the overplus to the owner. When more animals than one are impounded there may be a sale from time to time of so many as may be necessary. {Lay- ton V. Hurry, 8 Q. B. 811.) Heacue and If a distross be taken without good cause, the brSch" owner may rescue it before it is impounded. - But when once goods are impounded they are in the custody of the law, and if the tenant retake them he will be guilty of poundbreach (Co. Litt. 47 b), and will be liable to an action for treble damages (2 "Wm. & M. sess. 1, c. 5, s. 4), and the costs in- curred about the action. (5 & 6 Vict. c. 97, s. 2.) This apphes whether the impounding is on or off the premises (11 Geo. 2, c. 19, s. 10), and not- withstanding the distress may have been wrongful or irregular. The landlord may seize the goods again wherever he may happen to find them. {Rich V. Woolktj, 7 Bing. 651.) How distress Formerly a distress could not be sold, but only ™^drf.'^' retained as a pledge. Neither is it now regular to sen unless the notice hereinbefore mentioned {ante, p. 176) has been given. But such notice having been given, and the tenant failing within Digitized by Microsoft® DISTRESS. 181 five days to replevy, then after such distress and notice aforesaid and expiration of the said five days, the person distraining may cause the goods and chattels to be appraised by two appraisers, and after such appraisement may lawfully seR the goods and chattels so distrained for the best price that can be gotten for the same towards satisfaction of the rent for which the said goods and chattels shall be distrained, and of the charges of such distress, appraisement and sale, leaving the over- plus, if any, in the hands of the sheriff, under- sheriff or constable for the owner's use. (2 Wm. & M. sess. 1, c. 5, s. 2.) The statute also required that the sheriff or Appraise- under-sheriff, or constable, should be aiding and ^^ ' assisting at the distress, and that the two appraisers should be sworn, but this portion is now repealed. (35 & 36 Vict. c. 92, s. 13.) It is not necessary that the appraisers should be professional ones, but they must be reasonably competent. {Roden v. Eyton, 6 C. B. 427.) There must be two, what- ever the amount of rent distrained for, notwith- standing 57 Greo. 3, c. 93, seems to contemplate an appraisement by one where it is under 20/. {Allen V. FUcJ;er, 10 A. & E. 640.) Neither the landlord nor his bailiff or person actually making the distress can act as one of the appraisers. {Lyon V. Welclon, 2 Biag. 334 ; Westicood v. Cowne, 1 Stark. 172.) If the tenant to save expense request that appraisers be not called in, they may be dispensed with. {Bishop v. Bryant, 6 0. & P. 484.) The appraisement must be properly stamped, stamp oa (See 33 & 34 Yict. c. 97, s. 38, and schedule.) _ S:"" When the distress is impounded on the premises Sale, it may be sold there. (11 Geo. 2, c. 19, s. 10.) The landlord cannot sell before the expiration of the five days, but he is not bound to sell Digitized by Microsoft® 182 LAW OF LANDLOKD AND TENANT. immediately the five days liave expired. [Phil- poU V. Lehain, 35 L. T. 855.) He is allowed a reasonable time afterwards for appraisement and sale. {Pitt V. Shew, 4 B. & Aid. 208.) Com loose or in sheaves, and hay, however, must be sold immediately upon the expiration of the five days, and growing crops must be sold when cut and placed in barns. {Piggott v. Birtles, 1 M. & W. 448.) In other eases the landlord must not keep the distress upon the premises after a reason- able time for appraisement and sale has elapsed, but must remove it unless the tenant consent to its remaining. [Griffin v. Scott, 2 Ld. E>aym. 14:24: ; Winterbourne v. Morgan, 11 Bast, 395.) The five days must be five clear days computed exclusive of the day of distress and the day of sale. {Rolinson v. Waddington, 13 Q,. B. 753 ; 18 L. J., Q. B. 250.) But, in an action for se llin g the goods before the five days have elapsed, the tenant can only recover if he have sustained actual damage. {Lucas v. Tarkton, 3 H. & N. 116 ; 27 L. J., Ex. 246.) Before selling, the o£6.ce of the county court of the district should be searched to see if the goods Sale for the have been replevied. The goods must be sold best pnoe. ^^^ ^^ ^^Qsi price that can be obtaiaed for them. It was held, that if sold at the appraised value, they were presumed to have been sold at the best price ( Walter v. Runibal, 1 Ld. Eaym. 53) ; but the ground of decision was the reliance the law placed upon the appraisers being sworn, and the rule no longer holds, now that appraisers are not sworn, so that appraisement is only prima facie evidence of the value. (Cooh v. Corhett, 24 W. E. 181.) Very often the goods are bought by the appraisers or one of them at their own valuation; this course, however, should only be adopted when the value of the goods is small. Digitized by Microsoft® DISTKESS. 183 The landlord cannot take the goods at their appraised value. {King v. England, 4 B. & S. 782; 33 L. J., Q. B. 145.) The fact of goods heiag allowed to stand in the rain, or being im- properly lotted, may be evidence of not selling at the best price. {Poynter v. Buckley, 5 C. & P. 612.) If a tenant is under covenant not to carry hay and straw off the" premises, the landlord cannot sell hay and straw, taken as a distress, subject to a condition that it shaU be consumed on the premises, without being liable to an action for not selling at the best price [Ridgway v. Lord Stafford, 6 Ex. 404; 20 L. J., Ex. 226; Eawhins V. Walrond, 45 L. J., C. P. 772; L. E., 1 0. P. D. 280), unless there is an express condition in the lease enabling him to do so. Where a distress is made for arrears of rent Costeoftiie not exceeding 201., the person making the distress, imderM. or person employed by him, shall not have, take or receive any other or more costs or charges for or in respect of the same than those set down in the schedule to the act 57 Geo. 3, c. 93 (s. 1), and which are as follows : — s. d. Levying distress . . . .30 Man in possession, per day . .26 Appraisement, whether by one broker or more, 6d. in the pound on the value of the goods. Stamp, the lawful amount thereof. All expenses of advertisement, if any such . . . . _ . . 10 Catalogues, sale and commission, and deHvery of the goods, Is. in the pound on the net produce of the sale. If any person shall in any manner levy, take or receive, or retain or take from the produce of the Digitized by Microsoft® 184 LAW OF LANDLOED AND TENANT. goods sold, any greater costs and charges than are mentioned above, or make any charge whatsoever mentioned in the said schedule, and not really done, it shall be lawful for the party aggrieved to apply to a justice of the peace for the county, who may, after examining iato the complaint, order treble the amount of the moneys so un- lawfully taken to be paid by the person so having acted to the party complainiag, together with full costs. (Sect. 2.) Above 20J. "Where the rent distrained for exceeds 201., the costs and charges to be taken are not regulated by statute. They must, however, be reasonable. (Lyon V. Tomkies, 1 M. & W. 603; Sills v. Street, 6 Bing. 37.) In practice they are gene- rally one or two guineas for the levy, 5s. a day for the man in possession, and the other charges above mentioned. The nature of possession to be taken must depend on the nature of the distress, and the statutory charge of 2s. 6d. per day would not be allowed for a man iq possession of growing grass crops during the period of its maturing. {Ex parte Arnison, L. E., 3 Ex. 56 ; 37 L. J., Ex. 57.) Broierto Every broker or other person who shall make SgS''°* and levy any distress whatsoever, shaU give a copy of his charges, and of all the costs and charges of any distress whatsoever, signed by him, to the person or persons on whose goods and chattels any distress shall be levied, although the amount of the rent demanded shall exceed the sum of twenty pounds. (67 Geo. 3, c. 93, s. 6.) The landlord is not liable, unless he personally interferes in the distress, for the broker's neglect to dehver a copy of charges. [Sart v. Leach, 1 M. & W. 560.) Ovei-pius. The landlord should leave the overplus of the proceeds of any sale, after satisfying the rent and Digitized by Microsoft® DISTRESS. 185 costs, with the sheriff or tindersheriffi, and any unsold goods distrained he may return to the premises on which he distrained them. {Evans v. Wright, 27 L. J., Ex. 50 ; 2 H._& N. 527.) In practice the overplus is often paid to the tenant or his agent, and when this is done the tenant cannot complain that it has not been paid over to the sheriff or undersheriff for his use, since the statute is thereby substantially satisfied. (Per Lord Abinger, Lyon v. Tomkies, 1 M. & W. 606.) If the proceeds of sale are insufficient to satisfy the rent, the landlord may bring an action for the balance. {Philpott v. Lehain, 35 L. T. 855.) Where the rent in arrear consists of several Second dis amounts falling due on different days, there may ^^' be a separate distress for each. {Anon., Moore, 7 ; Gambrell v. Falmouth, 4 A. & E. 73.) Nor does it matter whether the first distress be taken for the rent which last became due. {Palmer v. Strange, I Leo. 43 ; 8. C, Pamer v. Stabick, 1 Sid. 44.) As a general rule, however, a man may not spht one entire demand and distrain twice for the same rent when he might have taken enough on the first occasion. {Owens v. Wynne, 4 E. & B. 579 ; Bacjge v. Mawhy, 22 L. J., Ex. 236 ; 8 Ex. 641.) But if the value of cattle distrained shall not be of the full value of the arrears distrained for (17 Car. 2, c. 7, s. 4) ; or if there are not sufficient goods on the premises on the first occasion ; or if goods are of an uncertain or imaginary value, as pictures, jewels, racehorses, &c., and the landlord mistake their value {Hutchins v. Chambers, 1 Burr. 589); or if the landlord is prevented from realizing the distress by the conduct of the tenant {Lee v. Cooke, 27 L. J., Ex. 337 ; 3 H. & N. 203) ; or where cattle die in the pound, by the act of Grod, a second distress may be taken. The same rule against a second distress applies A-bandon- Digitized by Microsoft® 186 LAW OF LANDLORD AND TENANT. where the landlord, having distrained enough, vo- luntarily abandons it {Bagge v. Mawhy, 22 L. J., Ex. 236 ; 8 Ex. 641 ; Dmcson v. Cropp, 1 C. B. 961), unless the landlord withdraw the distress at the request and for the accommodation of the tenant {Bagge v. Maiohj, supra), or is induced to do so by a false representation of the tenant. ( Wolladon v. Stafford, 15 0. B. 278.) Merely quitting posses- sion of goods after distress is not necessarily an abandonment {Bannister v. Hyde, 29 L. J., Q,. B. 141) ; nor is failure to resume immediate possession upon being forcibly expelled {Eldridge v. Stacey, 15 0. B., N. S. 458) ; or allowing the goods of a stranger which have been distrained to be removed for a temporary purpose. {Kerhy v. Sarding, 6 Ex. 234.) The question of whether or not there has been an abandonment is one for the jury. {Eldridge v. Stacey, supra.) E£Eect of A tender of the rent, without any costs, before rent. Seizure (although the warrant to distrain may have been delivered to the bailiff) extinguishes the right to distrain, and makes a subsequent dis- tress iLLegal. {Bennett v. Bayes, 29 L. J., Ex. 224 ; 5 H. & N. 391.) A tender after distress and before impounding, of the rent and costs of the distress, makes the subsequent detainer illegal ( Vertue v. Beasley, 1 M. & Eob. 21 ; Six Car- penters' case, 1 Sm. L. C. 133, 7th ed.) ; and even after the impounding the tenant may within five days tender the rent and the proper costs, and, if the landlord afterwards sell, may maiataia an action against him. {Johnson v. Vpliam, 2 E. & E. 250 ; 28 L. J., a. B. 252.) But the tenant must at his peril in. each case tender the proper amount of rent and costs, and tender it unconditionally. {Finch V. Miller, 5 C. B. 428.) To whom The tender may be made to the landlord him- mad" self, notwithstanding he has authorized a broker Digitized by Microsoft® DISTRESS. to distrain and left tlie matter in his hands [Smith V. Goodwin, 4 B. & Ad. 413), or to his agent authorized to receive rents. {Bennett v. Bayes, 29 L. J., Ex. 224 ; 5 H. & N. 391.) A hailiff authorized to distraiu is authorized to receive the rent, and tender may be made to him {Batch v. Sale, 15 Q.. B. 10) ; hut tender to a man left in possession (being other than the person holding the warrant to distrain) is invalid. {BoiiUon v. Reynolds, 2 E. & B. 369.) 187 Digitized by Microsoft® ( 188 ) distress. CHAPTEE YII. KBMEDIES FOR lEBEGULAE, EXCESSIVE OR ILLEGAL DISTRESS. In pursuing his summary remedy by distress, tlie landlord must he careful that the distress is neither irregular, excessive nor illegal. Irregular A distress is irregular when the taking of the distress is perfectly legal and in order, but some of the subsequent proceedings are unlawful. The most frequent instances of irregular distress are, selling without having given notice, or within five days from the notice ; selling growing crops before they are gathered, contrary to 11 Greo. 2, c. 19, s. 8 ; selling without appraisement, or for less than the best price ; and not leaving the overplus in the hands of the sheriff or under- sheriff. (See upon these various points. Chap. VI.) And so, although a distress is lawfully made, it is unlawful to detain or sell it after tender of the rent with proper costs, or to sell after the goods have been replevied. At common law an irregularity in the conduct of a distress made the entire proceedings void, and the person distraining a trespasser ab initio. {Six Carpenters' case, 1 Sm. L. C. 133, 7th ed.) This was found to occasion hardship, and therefore, by 11 Greo. 2, c. 19, s. 19, it was provided that when any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress itself shall not be deemed Digitized by Microsoft® REMEDIES FOR IRREGULAR OR ILLEGAL DISTRESS. 189 to be unlawful, nor the party making it be there- fore deemed a trespasser ah initio ; but the party aggrieved by such unlawful act or irregularity shall or may recover full satisfaction for the special damage sustained thereby and no more. But the tenant cannot recover if there has been a tender of amends before action. (Sect. 20.) The protec- tion of this act does not extend to a distress illegal in the very commencement. [Attack v. Bramwell, 3 B. & S. 520.) An action for irregularity in dealing with a distress cannot be maiataiaed without proof of special damage, on failure of which the plaintifE is not entitled to a verdict for even nominal damages, but the defendant is entitled to the verdict. {Lucas V. Tarleton, 3 H. & N. 116 ; Badgers v. Parker, 18 0. B. 112 ; 25 L. J., 0. P. 220 ; Proudlove v. Tioemhw, 1 Or. & M. 326.) By the statute of Marlebridge (52 Hen. 3, c. 4) Excessive it is enacted that " distresses shall be reasonable '^*^'^^- and not too great." To be excessive a distress must be obviously disproportioned to the rent. {Field V. Mitchell, 6 Esp. 71.) When a landlord is about to make a distress, he is not bound to calculate very nicely the value of the property seized, but he must take care that some proportion is kept between that and the sum for which he is entitled to take it {per Bayley, J., Willoughby v. Backhouse, 2 B. & G. 823), and in doing so is only bound to exercise a reasonable and honest discretion. {Roden v. Eyton, 6 C. B. 430.) Taking a single chattel, though of considerably greater value than the rent, is not excessive if there was no opportunity to take one of less value. {Avenell v. Croker, M. & M. 172.) The question of excess is one for the jury {Smith v. Ashforth, 29 L. J., Ex. 259), and an action will lie for an excessive distress although the sale, less the ex- Digitized by Microsoft® 190 LAW OF LANDLORD AND TENANT. penses, did not equal the rent due. {lb.) The landlord is not hound hj the amount of rent actually claimed at the time of distraining, and though he then claun for more rent than is due, he mU. not be hahle to an action unless the distress is excessive for the rent really due. (Tancred v. Leylancl, 16 Q. B- 669; 20 L. J., Q. B. 316; French v. Phillips, 26 L. J., Ex. 82 ; Glyti v. Thomas, 25 L. J., Ex. 125 ; 11 Ex. 870 ; Phillips T. Whitsed, 29 L. J., Q. B. 164.) Eor an excessive distress the plaiatiff is entitled to nominal, though he prove no actual, damage, since the law will presume damages from a man being prevented from dealing with his property. {Chandler v. Boulton, 34 L. J., Ex. 89 ; 3 H. & C. 553.) Whether impounded on the premises or off the premises, the tenant is entitled to recover such actual damage as he has sustaiaed through loss of the use and enjoyment of the excess taken, or of the power of disposiag freely thereof, or through the inconvenience and expense in procuring sure- ties to a larger amount than he otherwise would have been on replevying. {Piggott v. Birtles, 1 M. & W. 441.) He is also entitled to the excess of the value of the goods above the rent and the expenses of distress, niegai dis- An illegal distress is one which is wrongful in. the very commencement, such as a distress by a stranger, or by the landlord after he has parted with his reversion, a distress when no rent is due, or after it has been tendered, or after a former distress for the same rent, distraining off the premises, or between sunset and sunrise, or in an unlawful manner, as by breaking open the outer door, or distraining things privileged from distress. In the case of an illegal distress the distrainor is a trespasser ab initio, and the full value of the Digitized Sy Microsoft® EEMEDIES FOK IRUEGXTLAE OR ILLEGAL DISTUESS. 191 goods taken, without any deduction for rent, is recoverable as damages [Attack v. BramiocU, 32 L. J., Q. B. 146 ; 3 B. & S. 520 ; Keen v. Priest, 28 L. J., Ex. 157) ; and where the landlord has placed a man in possession, the plaintiff is entitled to damages, although he had the use of the goods all the time. [Bai/liss v. Fisher, 7 Bing. 153.) When a distress and sale is made for rent pre- tended to be in arrear and due, when in truth no rent is due, the owner of the goods distrained is en- titled to recover by action double the value of the goods with full costs of suit. (2 W. & M. sess. 1, c. 5, s. 5.) This only applies where the goods have been actually sold. [Masters v. Farris, 1 0. B. 715.) When a distress is illegal, the person who com- ^goj^'^tjo mitted the act complained of is responsible and not may he the landlord, unless he authorized or subsequently '°^° ' sanctioned the act done. [Leids v. Read, 13 M. & W. 834 ; Freeman v. Eosher, 13 Q. B. 780 ; 18 L. J., Q. B. 340 ; Green v. Wroe, W. N. 1877, p. 130.) If, when he knows the circumstances, he repudiates the act, he is not bound by it. [Hurry V. Rickman, 1 M. & E,ob. 126.) But he is respon- sible for any mere irregularity, although done with- out his knowledge or sanction. [Haseler v. Lemoyne, 5 0. B., N. S. 530 ; 28 L. J., C. P. 103.) An action for irregular, excessive or illegal dis- wh™ in tress, when the amount claimed is imder 50/., may court, be brought in the county court. An injunction to restrain a distress will not be granted (even if the right to distrain be doubtful) without provision being made to secure the land- lord in the event of his being found to be entitled. [8haw V. Earl of Jersey, 48 L. J., 0. P. 308.) Whenever there has been an unlawful distress Eepievin. the tenant has his remedy by replevin. Eepievin consists of the re-delivery to the owner of the goods taken, upon his undertaking to try the validity of the distress. It may be resorted to, to obtain the Digitized by Microsoft® 192 LAW OF LANDLOED AND TENANT. recovery of all kinds of goods wHch can lawfully be distrained, but not of fixtures, animals /eras natures, and other things which from their nature cannot be the subject of distress. {Niblet v. Smith, 4 T. E. 504.) Proceedings in replevin consist — (1) of the tenant giving security that he will pro- secute an action of replevin, whereupon the goods are restored; and (2) of the action so undertaken to be brought. So long as the goods remain unsold the tenant may replevy. {Jacob v. King, 6 Taunt. 451.) Formerly the replevy was made by the sheriff, who took the goods from the distrainor and re- delivered them to the owner, upon the execution of a replevin bond by the owner and two sureties conditioned to prosecute his suit with effect and without delay against the distrainor, and to return the goods if a return should be awarded. By the 19 & 20 Yict. c. 108, this power was taken away, and it was provided that the registrar of the county court of the district in which any distress subject to replevin shall be taken, shall be em- powered to approve of replevin bonds, to grant replevins, and to issue all necessary process ia relation thereto, and such process shall be executed by the high bailiff. (Sect. 63.) The registrar win cause the goods to be replevied to the owner upon his giving security to prosecute an action against the distrainor, either in the superior court or in the county court. (Sect. 64.) If the reple- visor (or owner) intends to proceed in the superior court, he must give security to cover the alleged rent in respect of which the distress was made, and the probable costs of the cause, and must commence his action within one week from the date of giving security, and be prepared to prove (unless judgment be obtaiaed by default) that he had good ground for believing either that the title to some corporeal or incorporeal hereditaments, or to some toll, market, fair, or franchise, was in question, ^i^aM^bs< ibimtsom:pAed 201. (Sect. 65.) REMEDIES FOE lEEEGULAK OE ILLEGAL DISTEESS. 193 If he elect to sue in the county court, the reple- visor must give security for the alleged rent and the probable costs of the cause, and must commence his action within one month from the date of giving security. (Sect. 66.) In both cases, also, " to make return of the goods, if a return thereof shall be adjudged," is one of the conditions. The security shall bo in the form of a bond, with sure- ties to the distrainor (sect. 70) ; or a deposit of a sum, equal to the amount of the security which would be required, with the registrar. (Sect. 71 ; Co. Cot. Orders, 1875, Ord. XXX.) Eeplevin bonds are exempt from stamp duty. (See general exemption at end of schedule to 33 & 34 Vict. c. 98.) This schedule seems to have been over- looked in the note at the end of the County Court Eules, 1876. The action of replevin is in the same form as any other action. No other cause of action can be joined with it, either in the superior court (C. L. P. Act, 1852, s. 41) or in the county court. (Co. Cot. Orders, 1875, Ord. _ XXII. r. 1.) If brought in the county court it may be removed by certiorari to a superior court, when the defend- ant is prepared to prove that he had good ground for believing that the title to some corporeal or incorporeal hereditaments, or to some toll, market, fair, or franchise was in question, or that the rent, in respect of which the distress was taken, exceeded 20/. (19 & 20 Yict. c. 108, s. 67.) _ Unless so removed the county court has full jurisdiction, whatever the amount of the rent and though title come in question. (Fordham v. Akcrs, 4 B. & S. 578 ; 33 L. J., Q. B. 67.) If the rent exceed 20/. there is an appeal from the county court. (Sect. 68.) For any form of wrong committed in a distress Eemedies within the metropolitan police district where the ^' H.&L. Digitized by Microsoft® 194 LAW OF LANDLORD AND TENANT. metropoii- Tent IS Under 15/., a summary remedy is proyided district. by 2 & 3 Yict. c. 71, s. 39, wliich enacts, that " on complaint to any of the police magistrates by any person who shall ■within the metropolitan police district have occupied any house or lodging by the week or month, or, where the rent does not exceed the rate of 16/., by the year, that his goods have been taken from him by an unlawful distress, or that the landlord, or his broker, has been guilty of any irregularity or excess in respect of such dis- tress, it shall be lawful for such magistrate to sum- mon the party complained against, and if, upon the hearing of the matter, it shall appear to the magistrate that such distress was improperly taken or unfairly disposed of, or that the charges made by the party haying distrained, or attempted to distrain, are contrary to law, or that the proceeds of the sale of such distress have not been duly accounted for to the owner, it shall be lawful for the magistrate to order the distress so taken, if not sold, to be returned to the tenant on payment of the rent at such time as the magistrate shall appoint ; or if the distress shall have been sold, to order payment to the tenant of the value thereof, deducting thereout the rent which shall appear to be due, such value to be determined by the magis- trate ; and such landlord, or party complained against, in default of compliance with any such order, shall forfeit to the party aggrieved the value of such distress, not being greater than 15/., such value to be determined by the magistrate." Digitized by Microsoft® ( 195 ) CHAPTEE VIII. HOW TENANCIES DETERMINE. Where a lease Is granted for a term of years, or By effluxion for one year only {Cohl v. Stokes, 8 East, 358), '''*^'- or is determinable on the happening of a certain event, then upon the expiration of the term or the happening of the event, the tenancy is put an end to, without notice to quit. So are all underleases granted by the lessee. (See Wetter y. Spiers, 20 W. E. 772.) If a lease is for a certain term, but determinable Leases for by one or either party at an earlier date [ante, periods. p. 67), the party determining it must give the notice provided for in the lease, or if no provision is made he must give a reasonable notice. [Good- right V. Richardson, 3 T. E. 462.) A tenancy is determined whenever the term and Merger, the reversion both vest, without any intervening estate, in the same person in the same right, for then the less interest merges in the greater. (2 Preston, Abst. 12; Smith, Law of Prop. 1150, 3rd ed.) If any underlease or derivative title have been created out of the term, it will not be affected by the merger. Determination of a tenancy may be efEeeted by surrender, surrender, that is, by the tenant rendering up his estate to his immediate landlord, and the land- lord accepting the surrender. A surrender may be either express or by operation of law. The express, 29 Oar. 2, c. 3, s. 3, requires that " an express sur- render shall be by deed or note in writing, signed Digitiih^by Microsoft® of law. 196 LAW OF LANDLORD AND TENANT. by the party surrendermg, or Ms agent, authorized by writing ;" and 8 & 9 Yiot. o. 106, s. 3, further reqiiires that " a surrender in writing, unless of a copyhold interest or any interest which might by law have been created without writing, shall be by deed." Cancelling a lease or tearing oil the names of the parties, unless there is also " a deed or note in writing," will not operate as a surrender. {Doe V. Thomas, 9 B. & 0. 288; Ward v. Lumley, 29 L. J., Ex. 322.) But no technical words are requisite in the writing, by operation A Surrender by operation of law or implied '"" surrender occurs where the one party does, and the other assents to, an act which is inconsistent with the continuance of the lease or tenancy. Thus, there cannot be two concurrent leases or tenancies of the same premises, and therefore, if, during the continuance of a lease, the landlord, with the assent of the tenant, grant a new lease, the previous lease is surrendered by operation of law ; or, in other words, the tenant having as- sented is estopped from afterwards denying the landlord's power to grant the new lease, which he could only do, assuming the old lease to be surren- dered. {Lyon v. Reed, 13 M. & W. 285.) And this is so, whether the new lease is to the tenant himself {ib.; McDonnell v. Pope, 9 Hare, 705), to himself jointly with a third person {Hainerton v. Stead, 3 B. & C. 478), or to a third person alone. {Davison v. Gent, 1 H. & N. 744; 26 L. J., Ex. 122; Thomas v. Cool;, 2 B. & Aid. 119.) His assent in the latter case would be sufhciently evidenced by his giving up possession to the new lessee. {Davison v. Gent, supra.) It is immaterial that the new lease is for a less term than the imexpired residue of the old one, or that the old lease was by deed and the new one by parol. {Ik; Dodd V. Acldom, 13 L. J., C. P. 11; 6 M. & Digitized by Microsoft® HOW TENANCIES DETERMINE. 197 Gr. 679, per Tindal, C. J.) But a lease wMch is void or voidable {Boe v. Poole, 17 L. J., jQ,. B. 143), or which does not pass an interest according to the contract of the parties {Doe v. Courtney, ib. 151), will not operate as a surrender. Neither will a mere agreement for a new lease with the tenant {Foquet v. Moor, 7 Ex. 870; 22 L. J., Ex. 35), or with a stranger, unless the tenant quits and the stranger enters and each does so upon the express faith of that agreement ; for a mere change of possession does not itself raise a presumption of a surrender, hut only that the person in possession is an assignee or underlessee. {Copeland v. Guhhins, 1 Stark. 96; Doe v. Wood, 14 M. & W. 682.) A giving up of a smaU portion of the premises and a proportionate re- duction of the rent does not in itself amount to a surrender by operation of law. {Holme v. Bruns- MU, 47 L. J., C. P. 610 ; L. E., 3 Q. B. D. 495.) The creation of a new relation in regard to the property inconsistent with that of the contiauance of landlord and tenant, operates as a surrender, as where the lessee of a ferry became servant to the lessor, and accounted to him for the profits. {Peter v. Kendal, 6 B. & C. 703.) Aaiything amounting to an abandonment of possession by the tenant under circumstances from which it can be inferred that such abandonment was assented to by the landlord, or followed by the landlord actually taking possession, will amount to a surrender by operation of law. {FurnivaU v. Grove, 30 L. J., C. P. 3 ; Dodd v. Acldom, 13 L. J., C. P. 11 ; Saint v. Pilleij, 44 L. J., Ex. 33 ; L. E., 10 Ex. 137 ; Jones v. Bridcjman, 39 L. T. 500.) Thus, where the tenant left the premises, and wrote to the landlord requesting him to relet, and the latter, without further communication, did relet, it was held to constitute a surrender. {Nicholls v. Ather- • • Digitized by Microsoft® 198 LAW OF LANDLORD AND TENANT. Stone, .16 L. J., Q. B. 371 ; 10 Q. B. 944.) So where- the tenant having left, the landlord without any such request relet. ( Walls v. Atcheson, 3 Bing. 462.) Again, delivery and acceptance of the key upon a parol agreement that the tenancy is to cease {Whitehead \. Clifford, 5 Taunt. 518), or de- livery of the key under circumstances from which the intention of the landlord to resume possession may he inferred {Furnimll v. Grove, supra; Moss v. James, 47 L. J., U. B. 160), will operate as a surrender. But there must be something to show that the landlord assents to the tenant's quitting, either hy accepting the key for the purpose of re- suming, or actually resuming, possession of the premises ; merely leaving the key at the office of the landlord, who does not return it, is not suffi- cient {Cannan v. Hartley, 19 L. J., C. P. 323) ; neither is an abandonment of the premises followed by an entry of the landlord thereon for the pur- pose of repairing, airing, or drying, but not with a view to take possession. (Bessell v. Landslerg, 7 Q. B. 638.) And where the tenant sent the key with the intention of giving up possession, the fact that the landlord received the key and attempted unsuccessfully to relet the premises was held not to estop him from alleging that the tenancy was still subsisting ; and it was further held that upon a reletting, the surrender only takes effect from the date of such reletting, and not from the time of the origiaal receipt of the key. '{Oastler v. Hen- derson, 46 L. J., Q. B. 607 ; L. E., 2 Q. B. D. 575 ; but see Phene v. FoppMcell, 31 L. J., C. P. 235; 12 C. B., N. S. 334.) Moreover a parol licence to quit, upon which the tenant quits ac- cordingly, will not determine a yearly tenancy, unless the landlord accept possession, (Mollett v. JBraync, 2 Camp. 103.) ^iSento When a lease is surrendered it does not destroy Digitized by Microsoft® HOW TENANCIES DETEEMINE. 199 the tenant's liability under his covenants for breaches of covenant and rent accrued due [Att.- Gen. V. Cox, 3 H. L. Gas. 240) ; but rent accruing, and which does not become payable until a day subsequent to the surrender, is lost. {Grimman v. Legge, 8 B. & 0. 324.) A surrender will not avoid or prejudice an onunder- underlease {Doe v. Pi/ke, 5 M. & S. 146; Mellor v. '^'^' Wathins, L. E., 9 Q. B. 400 ; as to a disclaimer under the Bankruptcy Act, see Taylor v. Gillott, 44 L. J., Oh. 740 ; L. E., 20 Bq. 682, and po&t, Chap. X.), or derivative rights depending upon the continuance of the lease. (Co. Litt. 338 b ; Saint V. Filley, 44 L. J., Ex. 33 ; L. E., 10 Ex. 137.) On the other hand, neither surrender nor merger destroys the undertenant's liability under his lease or tenancy ; for 8 & 9 Yict. c. 106, s. 9, provides " that if a reversion expectant on a lease is surrendered or merges, the estate which confers as against the tenant the next vested right to the tenement shall be deemed the reversion for the purpose of preserving the incidents to, and obliga- tions on, the reversion." (As to surrenders for renewal, see 4 Geo. 2, c. 28, s. 6; Cousins v. FAiilips, 35 L. J., Ex. 84; 3 H. & 0. 892.) A tenant, whether from year to year or for a Disclaimer, term of years, incurs a forfeiture of his interest, if he disclaim, or deny his landlord's title, and set up an adverse title to the property, either in himself or in a third person. (Doe v. Cooper, 1 M. & Gr. 139, per Tindal, 0. J. ; Doe v. Rollings, 4 0. B. 188.) A disclaimer in the case of a tenant from year to year may be either verbal or written {Doe V. Stanion, 1 M. & W. 695, 702 ; Doe v. Grubb, 10 B. & 0. 816) ; but a verbal disclaimer will not work a forfeiture in the case of a tenant for a term of" years. {Doe v. Wells, 10 A. & B. 427.) On the death of the lessor, refusal to pay to his Digitized by Microsoft® 200 LAW OF LANDLOED AND TENANT. Forfeiture, for condi- tion broken. Under a proviso for re-entry. devisee imder a will whicli is disputed is not a disclaimer. {Boe v. Pasqiiali, Peake, 259 ; Jones V. Mi/Is, 31 L. J., C. P. 66.) A subsequent dis- tress by the landlord waiyes a disclaimer. {Boe V. Williams, 7 0. & P. 322.) The right of a landlord to enter for forfeiture of the term by the tenant, is either given by law without any stipulation, or is made the subject of express stipulation in the instrument of demise. If a lease be granted on condition, and the con- dition be broken, the lessor may enter or maintain ejectment without any express proviso for re-entry. For mere breach of a covenant, the lessor can only do so if there is an express proviso for re-entry. {Boe V. Phillips, 2 Bing. 13.) To create a con- dition, apt and proper words must be used. {Boe V. . Waff, 8 B. ■& C. 308, 315.) In an agreement of demise it was "stipulated and conditioned" that the tenant should not assign, and this was held to create a condition {ib.) ; but where a tenant merely " agreed " that he would not underlet, it was held not to create a condition. {Shaw v. Coffin, 1-4 C. B., N. S. 372; Crawley y. Price, L. E., 10 Q. B. 302; 23 W. P. 874.) Strict proof of breach of a con- dition working a forfeiture is always required. To provide against difficulties in the proof of a broken condition, leases usually contain a proviso for re-entry on breach of any of the covenants contained in the lease. Provisoes of this descrip- tion, it is said, are to be construed like other con- tracts, according to the apparent intention of the parties {Goodtitle v. Snville, 16 East, 95 ; Wooler V. Knoff, 45 L. J., Ex. 313, 884; L. E., 1 Ex. D. 124, 265), and not with the strictness of conditions at common law. {Boe v. Elsain, Mo. & M. 189.) On this point, however, there is considerable con- flict in the views of the judges. (See judgments in Boe v. Inrjlcby, 15 M. & W. 459; Boe v. 8f evens, Digitized by Microsoft® HOW TENAKCIES DETERMINE. 201 3 B. & Ad. 303 ; Wooler v. Knott, supra.) The somewhat conflicting decisions (apart from the dicta) upon the point would seem reconcileable by the following propositions. (1) The proviso must be construed strictly and according to the letter to as- certain whether or not it was meant to include, and did incorporate, the covenant on breach whereof the right to re-enter is claimed. If it did, then (2) the question whether or not the covenant itself has been broken, is to be ascertained by reference to the rules which prevail in construing ordinary contracts between parties, and for that purpose the object and intent, as well as the actual words of the covenant, must be looked at. A proviso which seems to contemplate failure For breach i,-^ (. p ro t • t lOf negative m the performance oi atnrmative covenants only, covenants. win not apply to breaches of negative covenants. {West V. Dohh, L. E., 5 Q. B. 460; 39 L. J., Q. B. 190.) So that a power to re-enter in the event of the lessee "failing or neglecting to perform any of the covenants on his part to be performed," will not sanction a re-entry for breach of a covenant not to assign without consent. {Hyde v. Warden, L. E., 3 Ex. D. 72 ; 47 L. J., Ex. 121.) And an omission to do something is not within the words " do or cause to be done." {Doe V. Stevens, 3 B. & Ad. 303.) And it has been held, that breaches of a negative covenant are not covered by the words "make default in performance" {Doe v. Marchetti, 1 B. & Ad. 715 ; see Evans v. Davis, 48 L. J., Ch. 223), for a negative cannot be performed (Co. Litt. 303 b) ; though in a more recent case, in reply to a ques- tion put by the House of Lords, niae judges were unanimous on the view that a proviso for re-entry, "if the lessee shall make default of or in performance of all or any of the covenants, &c., which on his part are or ought to be observed, Digitized by Microsoft® tion of pro- ■\as0e3, 202 LAW OF LANDLOKD AND TENANT. performed, or kept," would apply to embrace covenants not to do something, as well as cove- nants to do something. (Croft v. Lumley, 6 H. L. Ca. 672 ; 27 L. J., Q. B. 321.) Construe- "We havo already considered the usual covenants in leases, and what are breaches thereof. [Ante, Chap. V. ; and see post, Chap. X., as to breaches of covenants in respect of assignments.) If the proviso for re-entry is insensible, the courts will not put a construction upon it to make it operative {Doe V. Carew, 2 U. B. 217 ; 11 L. J., Q. B. 5) ; neither wiU the courts reject clear and positive words, unless upon clear evidence that they are contrary to the intention of the parties [Boe v. Godwin, 4 M. & S. 270) ; so that upon the con- struction of a proviso for re-entry on breach of the covenants "hereinafter" contained, it was held to be restricted to subsequent covenants, although there were none to which it could apply, since such covenants might have been omitted through mistake, or struck out of the draft, (/i.) The proviso is usually extended beyond breaches of covenant, so as to include other acts and omis- sions of the tenant, such as bankruptcy, liquida- tion, composition, &e. A proviso for re-entry if the lessee be "duly found and declared a bank- rupt," does not apply to an invalid adjudication of bankruptcy {Doe v. Ingleby, 15 M. & W. 465) ; but the bankruptcy of a surviving executor of a tenant is within a proviso " if the lessee, his exe- cutors, administrators or assigns shall become bankrupt," &c. {Doe v. David, 1 Cr., M. & E. 405.) Seizure by the sheriff under an extent at the suit of the crown is within a proviso for re- entry in case the term thereby granted should be " extended or taken in execution." {Rex v. Top- jnng, M'Clel. & Y. 644.) If the re-entry is to accrue, " in case no sufficient distress can be found on the Digitized by Microsoft® HOW TENANCIES DETERMINE. 203 premises," every part of the premises must be searclied {Rees v. King, Forrest, 19 ; 2 B. & B. 855) ; and um-ipe growing crops may amount to a sufficient distress. {Ex parte Aniison, L. Ei., 3 Ex. 66 ; 37 L. J., Ex. 57.) A proviso in the lease of a publichouse for re-entry on breach, amongst other covenants, of one not to do any act that " could or might affect, lessen, or make void either or any of the licences," was held not to give a right of re-entry after two unindorsed convictions under the Licensing Acts against the lessee. {Wooler v. Knott, L. E., 1 Ex. D. 124, 265; 45 L. J., Ex. 313, 388.) No precedent for non-^^ formality on the part of the landlord is neces- ^S^™ ° sary to take advantage of a proviso for re-entry, except in the case of non-payment of rent. In such a case, to create a forfeiture at common law, there must be a demand, by the landlord or his agent, of the precise rent due and no more, upon the precise day when it is due and payable, at a convenient time before sunset, and upon the land at the most notorious place of it, or at the place, if any, appointed for payment. {Buppa V. Mayo, 1 Wms. Saund. 287.) To re- lieve from these troublesome formalities the pro- viso is usually framed for re-entry, if the rent be unpaid for a certain number of days after it is due, although no formal demand be made. After the lapse of the time a forfeiture accrues without any demand. {Doe v. Masters, 2 B. & 0. 490 ; Doe d. Dixon v. Roe, 7 0. B. 134; Phillips v. Bridge, L. E., 9 C. P. 48 ; 43 L. J., C. P. 13.) Moreover, by 15 & 16 Yict. c. 76, s. 210, the landlord may, without any formal demand of rent or re-entry, commence an ejectment when one half-year's rent is in arrear, and the landlord has by law the right to re-enter for the non-pay- ment thereof, and when no sufficient distress is to Digitized by Microsoft® 204 LAW OF LANDLORD AND TENANT. be found on the premises countervailing the arrears then due. [Post, Chap. XI.) Porieiture An aot or default ffivine: a riffht of re-entry ma.TrpH lease O O ^ O V voidable not does not absolutely determine the lease, but """*■ makes it voidable at the election of the landlord alone, and not of the tenant, v^ho may not take advantage of his own wrong. {Rede v. Farr, 6 M. & S. 121.) And this is so though the proviso run that the "lease shall be void to all iatents and purposes " {Doe v. BancJcs, 4 B. & Aid. 401) ; or shall be " null and void " {Doe v. Birch, 1 M. & W. 402 ; JDakin v. Cope, 2 Euss. 170) ; or " shall cease and determine." {Davenport v. Regina, 47 L. J., P. 0. 9 ; L. E., 3 App. Gas. 115.) And the landlord must by some unequivocal act evince his intention to avoid it {Roberts v. Davey, 4 B. & Ad. 664) ; such as commencing proceed- ings in ejectment {Jones v. Carter, 15 M. & W. 718) ; creating a new tenancy with a third person in possession {Baylls v. Le Gros, 4l C. B., N". S. 637), or the like. But once having elected, the landlord cannot draw back. Forfeiture of the lease does not extinguish the liability of the tenant in respect of breaches of covenant that had accrued at the time of forfeiture. {Hartshorne v. Watson, 4 Bing. N. 0. 178.) waiTer of If after the forfeiture the landlord, with notice thereof, do any act which admits the continuance of the tenancy, he waives his right to take advan- tage of the forfeiture. ( Ward v. Day, 33 L. J., Q. B. 3, 254 ; and see Dumpor's case, 1 Smith, L. 0. 41, 7th ed.) Thus, if he accept ( Walrond V. Hawkins, 44 L. J., 0. P. 116 ; L. E., 10 C. P. 342; Croft v. Lwnley, 5 E. & B. 648; Davenport v. Regina, supra), or sue for {Dendy v. Nicholl, 4 C. B., N. S. 376), or distrain for {Coiesworth v. Spokes, 10 C. B., N. S. 103), rent becoming due after the forfeiture, it is a waiver. And an imqualified Digitized by Microsoft® forfeiture. HOW TENANCIES DETERMINE. 205 demand for such rent would seem to have the same efEect. {Doe v. Birch, 1 M. & W. 408.) But not an acceptance of rent due at the time of the for- feiture {Price V. Worwood, 4 H. & N. 512), or due subsequently, if at the time of receiving it the landlord was ignorant of the forfeiture. {Roe v. Harrison, 2 T. B.. 425.) It is not clear whether the statute 8 Anne, c. 14, s. 7, giving the right to distrain within six months after the termination of a tenancy, applies in the case of forfeiture, and therefore, whether or not a distress after forfeiture for rent due before forfeiture is a waiver ( Ward v. Bay, 33 L. J., Q. B. 3, 254) ; but if the landlord bring an ejectment for the forfeiture, he unequivo- cally declares his election to determine the lease, and a subsequent distress, whether it is justifiable luider that statute or is a mere trespass, is no waiver. {Grimwood v. Moss, L. R., 7 0. P. 360.) Acceptance of rent or other act is only a waiver Waiver is of breaches actually incurred, and not of a breach ™eLiie3.''^ continuing after the act relied on as a waiver {Boe V. Jones, 5 Ex. 498; 19 L. J., Ex. 405; Boe V. Woodbridge, 9 B. & C. 376) ; and a waiver of one forfeiture does not prevent the landlord availing himself of subsequent breaches. (23 & 24 Yict. c. 38, s. 6.) We have previously seen that the courts will EeUef relieve, under certain circumstances, against for- fStSI. feiture for breaches of covenant to insure. {Ante, p. 130.) They will also reheve against forfeiture for non-payment of rent, upon payment of all arrears of rent with costs. (23 & 24 Yict. e. 126, s. 1.) But generally relief will not be granted in case of forfeiture for the breach of any covenants, other than those for the payment of rent or other sums certain, or for insurance, except in case of mistake, accident or fraud. {Gregory v. Wilson, 9 Hare, 689 ; Bracehridge v. Buckley, 2 Price, 200 ; Digitized by Microsoft® 206 LAW OF LANDLORD AND TENANT. Reynolds v. Pitt, ib. 212, n. ; Peachy t. Duke of Somerset, 2 Wh. & Tu. L. 0. in Bq. 1100 et seq., 5th ed.) Eecently, however, relief was granted against a forfeiture for non-repair, where the landlord, after giving notice to repair, led the tenant to suppose that the notice would not be insisted upon. {Hughes v. Metropolitan Rail. Co., L. E., 2 App. Oas. 439 ; 46 L. J., 0. P. 683.) So relief was granted where repairs were not finished within a given time on account of the weather (Sargent v. Thompson, 4 GiS. 473) ; hut was refused where the tenant had employed a person to do repairs, but who had done them badly. {Nokes V. Gibbon, 3 Drew. 681.) By forfeiture of the original lease all underleases will be defeated, the same as by effluxion of time. (Coote, L. & T. 375.) Notice to A tenancy from year to year may be determined qmt, ^y ^ notice to quit, given by either landlord or tenant. A stipulation by which either party pro- fesses to deprive him self of the right to give notice to quit is void, because it is repugnant to the nature of a tenancy from year to year {Doe v. Browne, 8 East, 165 ; Wood v. Beard, L. E., 2 Ex. D. 30 ; 46 L. J., Q. B. 100 ; Roberts v. Tre- gaskis, 38 L. T. 176 ; but see Re King's Leaseholds, L. E., 16 Eq. 521; Kusely. Watson, 26 W. E. 653; 38 L. T. 604) ; but the parties may stipulate that upon the happening of a certaia event the tenant may quit without notice. {Bethell v. Blen- coice, 3 M. & Gr. 119.) A notice to quit may be verbal unless a written one is stipulated for. {Timmins v. Rowlinson, 3 Burr. 1603.) "When in writing it shoidd not be witnessed, for then, ia order to prove it, the witness must be called, or his absence accoimted for. {Boe v. Buniford, 2 M. & S. 62.) lensthof; The parties may stipulate for any length of Digitized by Microsoft® HOW TENANCIES DETERMINE. 207 notice, and that it sliall expire at any period of the year, and in such, case the stipulated notice must be given. {JDoe v. Baker, 8 Taunt. 241 ; Bridges y. Potts, 33 L. J"., 0. P. 343.) In the absence of stipulation local custom may regulate the length of notice required, but there must be strong evi- dence of the custom. (Roe v. Charnock, Peate, 5.) Unless by statute, agreement, or local custom, some other period of notice is fixed, it must be given a half a year at least before the expiration of some year of the tenancy. (Right v. Barhy, 1 T. E. 159 ; Boe v. Smioden, 2 W. Bl. 1225.) The half-year must be not merely six calendar months, but, unless the tenancy commenced on one of the usual feast days, a full period of 182 days. (Anon., Dyer, 345.) If the tenancy com- menced on one of the ordinary feast or quarter days, the notice must be from feast day to feast day, given on or before the quarter day next but one before that on which it is to determine. Such a notice is sufficient though less than a full half- year (Roe d. Burant v. Boe, 6 Biag. 574 ; Howard V. Wansley, 6 Esp. 53), and is required though more than a full half-year. (Morgan v. Bavies, L. E., 3 C. P. D. 260 ; 26 W. E. 816.) If the parties stipulate for a "six months'" notice, sis lunar months VFOuld be sufficient. (Rogers v. Kingston-upon-HuU Bock Co., 34 L. J., Ch. 165.) In the case of a weekly tenancy a week's notice to quit would seem sufficient (Jones v. Mills, 31 L. J., C. P. 66) ; and so where premises are taken by the month, a month's notice only is required. (Boe d. Parry v. Hazel, 1 Esp. 94.) As to tenancies w'tbin the provisions of the Agricultural Holdings Act, 1875, where a half-year's notice, expiriag with the year of tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, a year's notice so Digitized by Microsoft® expu'e. 208 LAW OF LANDLORD AND TENANT. exjoiring shall, by virtue of the act, be necessary and sufficient for the same ; but nothing in the section shall extend to the case where the tenant is ad- judged bankrupt, or has filed a petition for com- position or arrangement with his creditors. (38 & 39 Yict. e. 92, s. 51.) Following the above cases, it has been held that the words " half year " do not mean the same as six months, and do not apply to a tenancy created by deed before the act, with a stipulation for a six months' notice to quit. {Wilkinson v. Calvert, L. E., 3 C. P. D. 360; 26 W. E. 829 ; and see Hemtt v. Harris there cited, also 22 Sol. Jour. 386 ; and qucere would the act apply to a tenancy commencing on the 29th of September, in which case more than a "half- year's " notice would " by law be necessary," see Morgan v. Bavies, supra.) •when to Tlie notice to quit, whatever its length, must, in the absence of stipulation to the contrary, expire at that period of the year when the tenancy commenced {JDoe v. Donovan, 1 Taunt. 555), and on the last day of the year, unless the lease pro- vide otherwise. {Bridges v. Potts, 33 L. J., C. P. 338.) If a tenant for life execute a lease which determines upon his death, and the remainderman receives rent from the lessee (thus affirming the tenancy), the notice must expire on the last day of some year of tenancy computed from the ori- ginal entry. {Boe v. Ward, 1 H. Bl. 97 ; Boe v. Welter, 7 T. E. 478.) The same rule applies where the tenant holds over after the expiration of the lease {Boe v. Samuel, 5 Esp. 173), even when the original term is for a broken period not ending on the day when the tenancy commenced. {Berrerj v. Lindlei/, 3 M. & G(t. 498 ; 11 L. J., C. P. 27; Boe v. Bohell, 1 Q. B. 806.) But when the original tenant sublets, and the under- lessee enters at a different time of year to the Digitized by Microsoft® HOW TENANCIES DETERMINE. 209 commencement of the original tenancy, and holds OYer, the notice to quit must he given with refer- ence to the entry of the underlessee, and not with reference to the commencement of the original tenancy. {Kelly v. Patterson, L. E., 9 C. P. 681; 43 L. J., C. P. 320 ; Doe v. Lines, 11 Q. B. 402.) Although a tenancy, in the absence of payment "wict'? '^^ of rent or other definition of the commencement, twem the is to he considered as commencing on the day of aays'^"^ entry {Doe v. Matthews, 11 C. B. 675), yet if a tenant enter in a broken quarter, and pay rent for such broken quarter, and afterwards pay rent from quarter to quarter, the tenancy, so far as concerns the notice to quit, will be held to commence from the quarter day after he first entered {Doe v. Stapleton, 3 C. & P. 275; Doe v. Grafton, 18 Q. B. 496 ; 21 L. J., Q. B. 276) ; so if" no rent is to be paid for the broken quarter. {Sandill Y. Franklin, L. E., 10 0. P. 377; 44 L. J., C. P. 216 ; 23 W. E. 473.) When the tenant (as is usual with farms) has ^^^j,™^ entered on different parts of the premises at dif- times. ferent times, the notice must be given with refer- ence to the entry on the principal subject of the demise {Boe v. Snoivdon, 2 W. Bl. 1224 ; Doe v. Watkins, 7 East, 551), and the jury must decide which is the principal part. {JDoe v. Hou-ard, 11 East, 498 ; Doe v. Sughes, 7 M. & W. 139.) If a tenant inform his landlord that his tenancy began on a certain day, notice to quit accordingly is good; nor may the tenant afterwards show that it commenced on a different day. {Doe v. Lambly, 2 Esp. 635.) And where a question arises as to when the tenancy commenced it is a question for the jury. {Walker v. Goode, 30 L. J., Ex. 172.) A landlord cannot give a notice to quit as to ^^"^j,"^^'^^^* part of premises demised together at an entire whole, rent {Doe v. Archer, 14 East, 245 ; Doe v. Church, ^■^^- Digitized by Microsoft® -^ notice. 210 LAW OF LANDLORD AND TENANT. 3 Camp. 71), except when he desires to resume possession of part for purposes sanctioned by the Agricultural Holdings Act, 1875. (38 & 39 Yict. c. 92, s. 52.) Fomof The notice should he reasonably clear and cer- taia in its terms. A notice to quit " aU the pro- perty you hold of me," or similar general descrip- tion, is sufScient; and any trifling inaccuracy, which could not mislead the party to whom it is given, wHl not iavalidate a notice. Thus, a mis- take as to the parish, when the tenant held only one farm {Boe v. Wilkinson, 12 A. & E. 743), caUing the premises by the wrong name [Boe v. , 4 Esp. 185), putting a wrong year as that in which the notice was to end {Boe v. Kightley, 7 T. E. 63), addressing the notice to the tenant by a wrong christian name, and he did not return it {Boe V. Spilleo', 6 Esp. 70), have been held not to invalidate a notice, for the courts listen with reluctance to objections to the form of notice. {Boe V. Archer, 14 East, 245.) The notice need not specify the partieidar day on which the tenant is to quit. A notice to quit " at the expiration of the current year of the tenancy, which shall expire next after the end of one half-year from the date thereof," is sufficient. {Boe V. Butler, 2 Esp. 589 ; 2 Camp. 258, n. ; JDoe V. Smith, 5 A. & B. 350.) When a specific day is mentioned, care should be taken that it is the correct one, otherwise it wiU. be iuvalid, though served in time for the right day. {Boe V. Lea, 11 East, 312.) Where a tenant held from Martinmas to Martinmas, a notice given to the tenant on the 21st of October to quit on the 13th May then next, or on such other day or time as the current year for which he held should expire, it was held insufficient, for it would not be good for May, and the current year would expire on the 11th of November, a few days after the Digitized by Microsoft® HOW TENANCIES DETEKMINE. 211 notice. [Doe v. Morphett, 7 Q. B. 577; 14 L. J., Q. B. 345; Mills v. Gof, 14 M. & W. 72.) But a notice for two alternative days is good, if either of them is the correct one ; thus, where it was uncertaia whether a tenancy commenced on new or old Lady-Day, a notice to quit on the 26th of March or the 8th of April was held sufficient. {Doe T. WriqMman, 4 Esp. 6 ; and see Doe v. Vince, 2 Camp. 256.) The notice need not state to whom possession is to be given up {Doe v. Foster, 3 C. B. 215), but it must be imperative to quit vsdthout an alter- native : and therefore if it is to quit or pay double value, it is bad ; but " I desire you to quit or I shall insist on double rent " was held good, siace it was not regarded as offering an alternative. {Doe V. Jackson, Doug. 175; Doe v. Goldwin, 2 Q. B. 143.) So the notice of the tenant must denote an absolute intention to give up the pre- mises at the lawful time. {Goode v. Howells, 4 M. & W. 202.) Notice on behalf of the landlord should be given By whom by himself or his agent. A mere receiver of rents, ^™°' as such, has no implied authority to give a notice to quit {per Parke, J., Doe v. Walters, 10 B. & C. 633), but an agent to receive rent and to let has. {Doe v. Mizem, 2 M. & Eob. 56; Doe v. Robinson, 3 Bing. N. 0. 677; Erne v. Arm- strong, 20 W. E. 370.) And he may give the notice in his own name without purportiag to give it as agent. {Jones v. PMpps, L. E., 3 Q. B. 567; 37 L. J., Q. B. 198.) The steward of a corporation may give notice without any autho- rity under seal. {Roe v. Pierce, 2 Camp. 96.) If the agent at the time of giving notice have no authority, a recognition and adoption of the notice by the landlord ia time for it to begin to operate will make it good, but not a subsequent adoption p2 Digitized by Microsoft® 212 LAW OF lANDLOED AND TENANT. of it. {Doe V. Walters, 10 B. & C. 626; Doe v. Goldwin, 2 Q. B. 143.) A notice given by one of several joint tenants {Doe v. Summer sett, 1 B. & Ad. 135), or partners {Doe v. Sulme, 2 Man. & Ev. 433), or the authorized agent of one of them {Doe v. Mughes, 7 M. & W. 139), is suffi- cient for the whole. Notice should he addressed to the immediate tenant, and not to a mere under- tenant. {Pleasant y. Benson, 14 East, 234.) Service of. When in writing, the notice may he served upon the tenant personally, or, ia the case of joint tenants upon one of them {Doe v. Watkins, 7 East, 551), or it may he left at his dwelhng-house, whether upon the demised premises or not, with his wife or servant, but in that case the nature and contents should be explained at the time {Jones V. Marsh, 4 T. E. 464; Doe v. Lucas 5 Esp. 153; Tanham v. Nicholson, L. E., 5 H. L. 561 ; Liddy v. Kennedy, 20 W. E. 150), and it will be sufficient though the tenant is not informed of it untn within half a year of its expiration. {Doe V. Dunbar, Mo. & M. 10.) Merely leaving the notice on the premises without deliveidng it to anyone is not sufficient {Doe v. Lucas, supra), unless it be proved to have come to the tenant's hands ia due time. {Alford v. Vickery, C. & M. 280.) Service upon the person in possession will he good, as he is prima facie the assignee or agent of the tenant {Doe v. Williams, 6 B. & 0. 41; Doe v. Murless, 6 M. & S. 110; Roe v. Street, 2 A. & E. 329) ; and where a tenant is dead, service upon his vsridow in possession is good ia the absence of evidence of probate or administration. {Rees v. Perrott, 4 C. & P. 230; Stveeny v. Su-eeny, Ir. E., 10 0. L. 375.) Notice may be served through the post ; and where a notice was sent through the post to the place of business of the landlord's agent, and reached there after the agent left, but Digitized by Microsoft® HOW TENANCIES DETERMINE. 213 during business hours, on the last day for giving notice, it was held sufficient. {Papillon v. Brunton, 6 H. & N". 518; 29 L. J., Ex. 265.) Service in the case of a corporation may be upon one of its officers, but the notice must be addressed to the corporation. {Doe v. Woodman, 8 East, 228.) A notice to quit may be vrithdrawn by mutual 'Waiver of consent {Tayleur v. Wildin, L. E., 3 Ex. 303; ™'*'^- 37 L. J., Ex. 173), or it may be waived in various other ways. If the landlord distrain for {Zouch V. WilKngale, 1 H. Bl. 311), or receive {Goodright v. Cordwent, 6 T. E. 219; Doe v. Batten, Cowp. 243), rent due after the expira- tion of the notice, it is a waiver. But not so if the rent was due before the expiration of the notice. Merely demanding subsequent rent without its being paid is not necessarily a waiver {Bl]/th v. Betmett, 22 L. J., C. P. 79) ; and in a case where the rent was usually paid at a banter's, and the banker without authority re- ceived rent after the expiration of a notice to quit, this was held no waiver. {Boe v. Calvert, 2 Camp. 387.) A second notice to quit is generally, though not necessarily, a waiver of a former one. {Boe V. Palmer, 16 East, 53; Boe v. JBtumphreys, 2 East, 237.) The tenant's holding over after the expiration of the notice, is not a waiver, without evidence of a renewal of the tenancy {Jenner v. Clegg, 1 M. & Eob. 213; Gray v. Bompas, 11 0. B., N. S. 520) ; nor wiU a mere iadulgence granted to the tenant operate as a waiver. Thus, where the landlord being about to sell the premises gave the tenant notice, but promised not to turn him out unless they were sold, it was held that the tenant's having held over under this promise was no waiver. {WTiiteacre v. Symonds, 10 East, 13; Boe V. Crick, 5 Esp. 196.) When once an effectual notice to quit is given, Digitized by Microsoft® 214 LAW OF LANDLORD AND TENANT. it determines the tenancy; and waiver of the notice creates a new tenancy commencing from the expiration of the old one. Therefore a surety for rent is discharged by a proper notice to quit, although the notice is afterwards withdrawn. {Tayleur v. Wildin, L. E., 3 Ex. 303 ; 37 L. J., Ex. 173; L. E., 3 Ex. 303; Bolme^. BrunsUll, 47 L. J., C. P. 610; L. E., 3 Q.B. D. 495.) AvaJid A valid uotico to quit determiaes not only the te^iel' lease but all underleases the tenant may have underleases, created. Digitized by Microsoft® ( 215 ) CHAPTEE IX. EIGHTS AND LIABILITIES OF THE PARTIES ON THE DETERMINATION OF THE TENANCY. Sect. 1. — Fixtures. The term " fixtures " is often used to express dif- ^^^^^^ ferent meanings. (Broom's Max. 372.) Tlie sense in -which it is most generally used is that of chattels affixed to or planted in the soil, so as to become part of the freehold. {Climie v. Wood, 37 L. J., Ex. 158, per KeUy, 0. B.) In this sense we use it. The old rule of law is, that every chattel annexed to realty becomes upon annexa- tion part of the realty, according to the maxim quicquid plaiitatur solo, solo cedit; and, though this old rule applies in its integrity as between a mort- gagor and mortgagee of the freehold in respect of chattels attached by the former {Holland v. Hodg- son, 41 L. J., C. P. 146 ; L. P., 7 0. P. 328 ; Hawtrey v. Butlin, 42 L. J., Q. B. 163 ; Cross v. Barnes, 46 L. J.,Ci. B. 479), yet, as between other persons, the rule has been very much relaxed (per Kelly, C. B., Clitnie v. Wood, supra), and there now exists a mass of authorities prescribiug that chattels may (especially as between landlord and tenant) be annexed to the freehold, and yet remain as much chattels after they become annexed as they were before. (Per "Willes, J., Cliniie v. Wood, 38 L. J., Ex. 223.) It therefore becomes important to consider by what means articles placed upon the Digitized by Microsoft® 216 LAW OF LANDLORD AND TENANT. Articles not attached. Articles fastened only for using them as chattels. demised premises by a tenant during tlie tenancy- lose their character of chattels, and become fix- tures. In connection with this poiat it should be noticed, that articles which are not fixtures are removable at aU times before and after the deter- mination of the tenancy, and on the other hand they are distrainable for rent. Articles not further attached than by their own weight, are generally to be considered as mere chattels, e. g. wooden bams or other structures resting on, but not attached to, a brick or stone foundation ( Wanshorough v. Matoii, 4 A. & E. 884 ; Wiltshear v. CottreM, 1 E. & B. 674; Rex v. Otky, 1 B. & Ad. 161), or resting on the ground alone, though by their weight they may have become imbedded in the ground (Huntley v. Russell, 13 Q. B. 572) ; and weighing machines resting in holes lined with brickworis, but not attached to the brickwork, so as to be lifted out at pleasure. {In re Richards, L. E., 4 Ch. 630.) But even in such a case, if the intention is apparent to make the articles part of the land, they become so. {B'Eyncourt v. Gregory, L. E., 3 Eq. 382.) Thus, blocks of stone placed on the top of one another, without any mortar or cement, for the purpose of forming a drystone wall, would become part of the land, though the same stones if deposited in a builder's yard, and for convenience stacked in the form of a wall, would remain chattels. {Per Blackburn, J., Holland v. Hodgson, L. E., 7 0. P. 328.) When an article is actually fastened to the buildiag or land, the rule to determine whether it is a chattel or a fixture, is to consider in the first place whether it can be easily removed integre, salve et commode without injury to itself or to the fabric, and, ia the next place, whether the annexa- tion was for the permanent and substantial im- Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 217 provement of the freehold, or merely for a tem- porary purpose, or for the more complete use and enjoyment of it as a chattel. {Per Parke, 'B.,Sella- well V. Eastwood, 20 L. J., Ex. 154 ; Turner t. Cameron, 39 L. J., Q. B. 125.) In accordance with this rule it has been held, that machinery fastened for the purpose of steadying it, by screws let into the iloor with molten lead {Hellawell v. Eastimod, supra; Waterfall v. Penistone, 6 B. & B. 876); distillery tanks, which formed the roofs of rooms and houses, boiling backs and mash tuns (lying on brick piers against the walls), which formed the floors of some of the rooms, and were screwed down for the purpose of being steadied, and connected to pipes which were attached to fixtures {Chidley v. Churchioardens of West Ham, 32 L. T., N. S. 486) ; pumps fastened with screws {ib. ; and see Ghym£s v. Boiveren, 6 Bing. 437) ; a hydraulic press fixed by means of brickwork to the floor of a factory {Parsons v. Hind, 14 W. E. 860) ; hangings, chimney-glasses, pier-glasses or pictures slightly attached to the walls, for the purpose of holding them up in their places {Beck V. ReboiD, 1 P. Wms. 94) ; chandeliers and seats merely screwed to the premises to steady them {Bumergue v. Ramsey, 10 W. R. 844) ; and carpets attached by nails to floors, for the purpose of keeping them stretched {per Parke, B., Hellaioell y. Eastwood, supra), are not fixtures. On the other hand, railways formed in the ordinary manner, by naUing the raUs to wooden sleepers laid on the land, under and about which ballast was packed, were held to be fixtures, and not distrainable. {Turner v. Cameron, 39 L. J., Q,. B. 125 ; but see Beaufort v. Bates, 31 L. J., Ch. 481.) Of chattels, which have become fixtures, some Articles become so completely a part of the fabric, as to become essential to its use, that a tenant who has annexed ^^^^°' ''^'^ Digitized by Microsoft® fixttires. 218 LAW OF LANDLORD AND TENANT. them cannot remove them ; as, for instance, doors and windows. There are others, however, annexed to the land for the purpose of use in trade or busi- ness, or for domestic convenience or ornament, in so permanent a manner as to become part of the land ; but which, in order to encourage trade, or to enable a tenant to have full enjoyment of the land for the purpose of domestic convenience, a tenant who has erected them is entitled to remove them during his term. {Fer Willes, J., Climie v. Wood, L. E., 4 Ex. 328 ; 38 L. J., Ex. 223.) Trade The test as to the removability of trade fixtures is, whether the removal is in accordance with any prevailing practice, is possible without injury to the estate, and whether the articles were in them- selves of a perfect chattel nature before they were put up, or at least have in substance that cha- racter independently of their union with the soil, or, in other words, whether they may be removed without being entirely demolished, or losing their essential character or value. (Amos, Fixtures, 48.) If they answer this description, it is im- material that for the purposes of removal they have to be taken to pieces. {Wliitehead v. Ben- nett, 27 L. J., Ch. 474.) Of articles which as trade fixtures have been considered removable are, a soap boiler's vats {Poole's case, 1 Salk. 368) ; salt pans fixed vnth mortar to a brick floor {Law- ton V. Salmon, 1 H. Bl. 259, n. ; Mamfield v. Blackhurne, 6 Bing. N. 0. 438) ; baker's ovens, furnaces, coppers in brewhouses, brewing vessels, and pipes {Poole's case, supra) ; an engine screwed down to planks, and a boiler fixed in brickwork {Climie v. Wood, 38 L. J., Ex. 223) ; fire engines, steam engines and other machinery in the work- ing of a colliery {Lawton v. Lawtoii, 3 Atk. 13 ; Bndleij v. Ward, Amb. 113) ; a dutch bam set up for trading purposes, having a foundation of Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 219 brickwork and uprights fixed in and rising from the brickwork, and supporting a roof composed of tiles, and the sides open {Bean v. Allalley, 3 Esp. 11) ; and a varnish house, built on plates laid on brickwork let into the ground, with a brick chimney. (Fenfon v. Robart, 2 East, 88 ; and see Fitzherhert v. 8hmv, 1 H. Bl. 258.) Buildings which are the mere accessories of re- movable machinery may usually be removed, but not if they are of a permanent character. ( White- head V. Bennett, 27 L. J., Ch. 474.) Greenhouses and hothouses, erected by a market gardener or nurserjonan for the purposes of his trade, are re- movable {Penton v. Rohart, supra) ; but a con- servatory, not for trading purposes, erected on a brick foundation attached to a dwelling-house, and communicating -with it by windows opening into the conservatory, was held not to be remov- able {BucMand v. Butterfield, 2 B. & B. 54) ; and so were a greenhouse in a garden, and a boiler built into the brickwork in the greenhouse ; but the pipes of the heating apparatus attached to the boiler were held removable. [Jenkins v. Gething, 2 J. & H. 520 ; and see Martin v. Roe, 26 L. J., Q,. B. 129.) So a nurseryman may at the end of his term remove trees planted for the purposes of his trade {Lee v. Risdon, 7 Taunt. 191) ; but a private person could not {Wyndham v. Way, 4 Taunt. 316), nor even a border of box, or a flower. {Empson v. Soden, 4 B. & Ad. 655.) The exception in favour of trade does not ex- Agricultural tend to agriculture ; and a tenant in agriculture who erected a beast house and other farm build- ings which were let into the ground, was held not entitled to remove them, though he left the premises in the same state as when he entered. {Elwes V. Mawe, 3 East, 38; 2 Smith's L. C. 162, 7th ed.) However, by the 14 & 15 Vict. c. 25, u&isvict. I ^ J ' c. 2B,a. 3. Digitized by Microsoft® 220 LAW OF LANDLORD AND TENANT. s. 3, it is proYided that " if any tenant of a farm or lands shall after the passing of this act (24 July, 1851), with the consent in writing of the landlord for the time being, erect any farm building, either detached or otherwise, or put up any other build- ing, engine or machinery, either for agricultural purposes or for the purposes of trade and agri- culture (which shall not have been erected or put up in pursuance of some obligation in that behalf), then all such buildings, engines and machinery shall be the property of the tenant, and shall be removable by bini notwithstanding the same may consist of separate buildings, or that the same or any part thereof may be built in or permanently fixed to the soil, so as the tenant making any such removal do not in anywise injure the land or buildings belonging to the landlord, or otherwise do put the same in like plight and condition, or as good plight and condition as the same were in before the erection of anything removed." But the tenant may not remove any such matter or thing without first giving one month's notice in writing to the landlord or his agent, when it shall be lawful for the latter to elect to purchase ; the value to be ascertained by two referees or their umpire. As to the right to remove an unfinished erection, see Smith v. Render (5 W. H. 875). 38 & 39 Vict. This salutary enactment has to a certain extent been superseded by 38 & 39 Vict. c. 92, s. 53, so far as concerns tenancies to which that act is applicable. {Infra, Sect. 4.) The provision is as follows: — "Where after the commencement of this act a tenant affixes to his holding any engine, machinery, or other fixture for which he is not under this act or othervdse entitled to compensa- tion, and which is not so affixed in pursuance of some obligation in that behalf, or instead of some fixture belonging to the landlord, then such fix- Digitized by Microsoft® 0. 92, B. 53. convenience. EIGHTS, ETC. ON DETERMINATION OF TENANCY. 221 ture shall be the property of and be removable by the tenant." But before removal, the tenant must pay all rent and satisfy all other obligations in respect of the holding ; he shall not ia removal do any unavoidable damage, and shall after re- moval make good all damage occasioned by the removal. He shall not remove any fixture with- out a month's previous notice in writing to the landlord, who may elect to purchase ; the value in case of difEerence to be settled by reference. But the section does not apply to a steam engine erected by the tenant, if before erection he has not given the landlord notice of his intention to do so, or if the landlord has in writing objected to the erection. (See Appendix B.) The privilege of removal in respect of fixtures Kxtm-es for put up for ornament or domestic convenience aXStS*'"^ (usually termed tenant's fixtures, as distinguished from landlord's fixtures, which are not removable) is more limited than that in favour of trade. The test of removability seems to be whether they are slightly fixed, can be removed entire, and with little or no damage to the fabric. {Grymes v. Bower en, 6 Bing. 437; Avery v. Chedyn, 3 A. & E. 75.) The following have been held, or by the courts regarded, as removable : — Bells {Lyde v. Russell, 1 B. & Ad. 394), cornices {Avery v. Cheslyn, sxqira), wainscots fixed only by screws {Lawton v. Laidon, 3 Atk. 15), bookcases and other furniture fixed by holdfasts, screws, or nails to the wall {Birch v. Dawson, 2 A. «& E. 37 ; Ex parte Quincy, 1 Atk. 477), ornamental chimney-pieces {Leach v. Thomas, 7 C. & P. 327 ; Bishop v. Elliott, 24 L. J., Ex. 229), iron backs to chimneys {Harvey v. Harvey, 2 Str. 1141), stoves and grates fixed with brick- work in the chimney-places, but removable with- out injury to the chimney-place {Rex v. St. Bimstan, 4 B. & C. 686), pumps slightly attached {Gh~ymcs Digitized by Microsoft® 222 LAW OF LANDLORD AND TENANT. T. Boweren, supra), cooling coppers, mash, tubs, water tubs, and blinds. {Per Abbott, C. J., Cole- grave y. Bias Santos, 2 B. & 0. 77.) But ordinary fixtures put up to complete the house, as hearths and chimney-pieoes, not ornamental (Book's case, 1 Salk. 368; Bishop v. Elliott, supra), fire grates {Richardson v. Ardley, 38 L. J., Ch. 508), a ladder fixed to the ground and to a beam above, being the only means of access to the room above, a crank nailed at top and bottom to keep it in its place, and a bench nailed to the wall ( Wilde v. Waters, 16 0. B. 637), are not removable. Eight of Custom will often extend or regulate the right regSIted by of removal in the case of fixtures. (Bavis v. Jones, c^teSt" 2 B. & Aid. 165.) Frequently, also, the right is controlled by the contract of the parties. The tenant may renounce his right to remove fixtures. {Bumergtie v. Rumsey, 2 H. & 0. 777.) He may deprive himself of the right by undertaking to repair and yield up in a good state of repair im- provements and fixtures. {Naylor v. ColUnge, 1 Taunt. 19 ; West v. Blakeway, 2 M. & G. 729 ; Burt V. Saslett, 25 L. J., C. P. 201 ; Benry v. Brown, 2 Stark. 403.) But a covenant to sur- render at the end of the term the premises, to- gether with all locks, keys, bars, bolts, marble and other chimney-pieces, footpans, slabs, "and other fixtures and articles in the nature of fixtures, which shall at any time during the said term be fixed or fastened to the said demised premises, or be thereto belonging," was held not to prevent the tenant removing trade and tenant's fixtures, but only landlord's fixtures. {Bishop v. Elliott, 24 L. J., Ex. 229 ; Sumner v. Bromilow, 34 L. J., a B. 130.) Time of When a tenant has the right to remove fixtures, he must exercise that right either during his ori- ginal term {Lyde v. Russell, 1 B. & Ad. 394), or Digitized by Microsoft® removal. EIGHTS, ETC. ON DETERMINATION OF TENANCY. 223 during such further period of possession by him as he holds the premises under a right still to consider himself as tenant. ( Weeton y. Woodcock, 7 M. & W. 14 ; Be Lewies, Ex parte Stephens, L. E., 7 Ch. D. 127; 47 L. J., Bkey. 22.) So soon after the end of his term as the tenant is treated as a trespasser by the landlord, the right of removal is gone. {lb.; Heap v. Barton, 21 L. J., C. P. 153.) But it does not seem settled whether or not a tenant who remains in possession as a mere tenant at sufferance has this right. {Leader v. Eomeicood, 5 0. B., N. S. 546; 27 L. J., C. P. 316). In whatever way a lease may be determined, whether by forfeiture or by effluxion of time, the tenant has no right to remove fixtures after the landlord has entered {Pugh v. Arton, L. E., 8 Eq. 626; 38 L. J., Ch. 619), unless in accordance with a provision in the lease {Stansfield v. Mayor of Portsmouth, 27 L. J., C. P. 124), or by virtue of a Ucence, which must be under seal. {Boffeij V. Henderson, 21 L. J., Q. B. 49 ; 17 Q. B. 574.) If a tenant mortgage the tenant's fixtures and afterwards surrender the lease, the mortgagee has still the right during a reasonable period after the surrender to enter and sever them {London Loan and Discount Co. v. Brake, 6 0. B., N. S. 798 ; 28 L. J., C. P. 297 ; Moss v. James, 47 L. J. Q. B. 160 ; on appeal, 38 L. T., N. S. 595) ; and so where a trustee in liquidation sold the fixtures, and afterwards, without a formal disclaimer, sur- rendered the lease, the purchaser was held to be entitled to a reasonable time for their removal. {Saint V. Pilleij, 44 L. J., Ex. 33 ; L. E., 10 Ex. l37.) But if a trustee in bankruptcy disclaims the lease, he becomes a trespasser as from the date of the adjudication, and has no right to sever and remove the fixtures. {Be Lavies, Exixirte Stephens, Digitized by Microsoft® 224 LAW OF LANDLORD AND TENANT. L. E., 7 Ch. D. 127 ; 47 L. J., Bkcy. 22.) Not- withstanding this last decision, and the strong terms of the judgment of James, L. J., to the contrary, Bacon, V.-C, recently held that a trustee after notice to disclaim and before actual disclaimer might remove the fixtures {llx parte Foster, Be Roberts, 26 W. E. 834 ; 38 L. T., N. S. 888) ; hut this decision has since been reversed. {Ex parte ^roofo, i2ei?o6er!;s, 48L. J., Bkcy. 22; 27 W.E. 255.) If the fixtures have been disannexed during the term, so as to become chattels, they may be re- moved after the term has expired. {Barly v. Harris, 1 Q. B. 895.) If after the tenancy has determiaed the tenant continues in possession under a new agreement or lease, and nothing is said as to the fixtures, the right of removal is lost, and he is in the same position as if the landlord, being seised of both land and fixtures, had demised both to him. {Fitzhcrhert v. Shaiv, 1 H. Bl. 259, y Thorpe v. Milligan, 5 W. E. 336 ; Thresher v. East London Waterworks Co., 2 B. & C. 608.) Sect. 2. — Emblements. Emblements By the general rule of common law, if a tenant nation^^" of land has an uncertain or contingent interest, to^^° so that at the time he sows his crop he cannot be sure whether his tenancy will determine before, or last beyond, the time of harvest, and it is deter- mined before the harvest by the act of God, by operation of law, or by the act of another person, the tenant or his representative is entitled to emble- ments, i. e. the profits of the sown land. (Shep. Touch. 244 ; Bulirer v. Bulu-er, 2 B. & Aid. 470.) The right attaches to the estate of a tenant at will, a tenant for life, the lessee for years of a tenant for life, and to all other estates determin- Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 225 able by the act of the landlord, or by death, or by , operation of law. If an uncertain estate be determined by the trniessby^ tenant's own act, as if the tenant surrender, or act. in the case of a woman being tenant during widowhood, she think proper to marry, or if the estate of the tenant is determined by entry for forfeiture on condition broken, or the like, in each of these cases the tenant is not entitled to emblements. (Co. Litt. 55 b ; Bulurr v. Buhcer, 2 B. & Aid. 470 ; Davm v. Ejjton, 7 Bing. 154.) But where the lessee who has so determined his estate has let in an underlessee, the latter will be entitled. Emblements extend to every species of crop what crops which is not' produced spontaneously, but by in- damed, dustry and manurance, and which ordinarily re- pays the labour by which it is produced within the year in which the labour is bestowed, though the crop may in extraordinary seasons be delayed beyond that period. {Graves v. Weld, 5 B. & Ad. 105.) They include therefore corn, turnips, carrots, potatoes, hemp, flax, saffron and the like, and hops also, for though they spring from old roots, yet they are annually manured. (Co. Litt. 55 b (n. 1.) On the other hand, no things re- quiring more than a year to come to maturity are capable of being emblements {Graves v. Weld, supra) ; and growing crops of grass, even if sown from seed, and though ready to be cut for hay, cannot be taken as emblements ; for this is a natural product, though it may be improved by cultivation. (Co. Litt. 56 a.) It would seem that crops of artificial grasses, such as clover, might. (Smith, L. & T. 349, 2nd ed.) The right to emblements includes the right for Bight to the tenant, or any person to whom he may assign take! *° E. & L. Q Digitized by Microsoft® 226 LAW OF LANDLORD AND TENANT. them, to enter, cut and carry them away. (Co. Litt. 56 a.) Bight to, With respect to tenancies at rack rent, which hTii&^ts^ determine hy the death or cesser of the estate oi Vict. c. 25. ti^g landlord, the common law right to emhle- ments is superseded by 14 & 15 Yict. c. 25, s. 1, which provides, that " where the lease or tenancy of any farm or lands, held hy a tenant at rack rent, shall determine hy the death or cesser of the estate of any landlord entitled for his Hfe, or for any other uncertain interest, instead of claims to emblements, the tenant shall continue to hold and occupy such farm or lands until the expiration of the then current year of his tenancy, and shall then quit upon the terms of his lease or holding, in the same manner as if such lease or tenancy were then determined by effluxion of time or other lawful means during the continuance of his landlord's estate ; and the succeeding landlord or owner shall be entitled to recover and receive of the tenant, in the same manner as his prede- cessor or such tenant's lessor could have done, if he had been living or had continued the landlord or lessor, a fair proportion of the rent for the period which may have elapsed from the day of the death or cesser of the estate of such pre- decessor or lessor to the time of the tenant so quitting, and the succeeding landlord or owner and the tenant respectively shall, as between them- selves and as against each other, be entitled to all the benefits and advantages and be subject to the terms, conditions and restrictions to which the preceding landlord or lessor and such tenant re- spectively would have been entitled and subject in case the lease or tenancy had determined in man- ner aforesaid at the expiration of such current year: provided always, that no notice to quit Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 227 shall be necessary or required, by or from eitber party, to determine any such holding and occupa- tion as aforesaid." The statute applies wherever, at the determina- tion of the tenancy, there are on the land crops or roots in respect of which the tenant might have claimed a right to emblements, as in the ease of a cottage with an acre of ground, partly cultivated as a garden, and partly sown with corn and planted with potatoes. {Haines v. Welch, L. E.., 4 C. P. 91.) Sect. 3. — Aicay-going Crops and other Tenant Rights. Emblements can be taken only when the end of a tenancy depends upon an uncertainty ; for when the tenant knows at what time his interest will cease, all crops not severed when it does cease become by the common law the property of the landlord. This hardship of the common law is in most instances controlled, either by express agreement, or by the custom of the country, allowing the outgoing tenant his away-going crops, i. e. crops sown in the last year of the tenancy, but not harvested until after it has ex- pired. Custom also attaches other important custom as incidents to the end of the tenancy, such as the ^g^J-^s°' tenant's right to compensation for tillage. On ™^^'^j^. the other hand, while at common law all the nure,'&c. straw, hay, manure, and severed corn and other chattels belong to and are removable by the out- going tenant, custom often provides for their being consumed or left upon the land, an allowance being made for them to the tenant. The rules of law as to customs being the same in respect of all matters to which they apply, we shall treat of the Q 2 Digitized by Microsoft® 228 LAW OF LANDLORD AND TENANT. Custom means usage. The princi- ple being that as a tenant en- ters so lie Custom and lease con- strued to- gether. unless in- consistent. rights and obligations under customs generally, allowing the practitioner to apply those general rules to the specific matter, whether crops, til- lages, straw, or whatever it may be, afEected by custom. This becomes the more necessary since customs vary so widely, both in their nature and extent, in different parts of the country. A custom of the country need not, as we have before observed (Chap. V., Sect. 3), be immemorial; it is sufEcient if it be shown to be the prevalent usage of the district in which the land is situated. The readiest solation of the inquiry as to what allowances an outgoing tenant is entitled to, is to ascertain upon what terms he entered; for the custom of the country is founded upon this prin- ciple, that justice requires that a tenant should quit upon the same terms as he entered; if then when he entered upon the farm he paid for away- going crops, or for foldage, manure, fallowing or tillage, then he is entitled to be paid for such matters upon quitting. ( Webb v. Plummer, 2 B. & Aid. 751, per Bayley, J.) Custom attaches its incidents to all tenancies whether by parol or by deed [Wigglesimrth v. DalUson, 1 Smith, L. 0. 598, 7th ed.), and to tenancies from year to year, as well as for a term {Onsloic V. , 16 Yes. 173), even in respect of tillages. {Brocklington v. Saunders, 13 "W". E. 46.) If there are express words excluding the custom, or if the lease contains stipulations which are repugnant to or inconsistent with it, to that extent the custom is superseded. It is sometimes difficult to say, whether or not the terms of a lease do exclude a particular custom as to the tenant's away-going rights. If the lease contaia no stipulations as to quitting, the tenant is entitled to away-going crops according to the custom, though the terms of the holding may be Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 229 inconsistent with the custom {Holding v. Pigott, 7 Bing. 465) ; and where the lease provided that the tenant should " during the term consume with stock on the farm all the hay, straw and clover grown thereon, which manure shall he used on the said farm," but made no provision as to the unconsumed straw at quitting, it was held that the matter was governed by custom, in accordance with which it was to he left on the farm on being paid for. {Munceij v. Dennis, 26 L. J., Ex. 66; 1 H. & N. 216.) Even if the lease contain a stipulation as to some rights of the parties on the determination of the tenancy, that will not exclude the custom as to other rights to which no reference is made : thus, where a lease provided that the tenant should consume three-fourths of the hay and straw on the farm, and spread the manure arising therefrom, and leave such of it as should not be spread on the land, for the use of the land- lord, on receiving a reasonable price for it, but making no provision as to seeds and labour, it was held not to exclude the tenant's right to an allowance for seeds and labour under a custom of the country by which tenants at quitting were en- titled to payment for seeds and labour. {Sutton V. Warren, 1 M. & W. 466.) But if it appear distinctly by the lease that the stipulated pay- ments are the only ones to be made, the custom wiU. be excluded. {Webb v. Plummer, 2 B. & Aid. 746.) Thus, if there was a covenant by the tenant to plough and sow a certain portion of the demised land in the last year, being such as the custom of the country required, he being paid on quitting for the j)ioughing, or to plough, sow and manure, he being paid for the manuring, the principle of expresswii facit cessare taciturn would apply. {Per Parke, B., Sutton v. Warren, 1 M. & "W. 478.) So, a stipulation in a lease, binding Digitized by Microsoft® 230 LAW OF LANDLORD AND TENANT. the tenant to leave manure, the manure to be expended on the land, without making any men- tion of payment for it, was held to exclude the custom for an outgoing tenant to leave and be paid for such manure. {Roberts v. Barker, 1 Or. & M. 808.) And since the principle of custom is to secure to the tenant on going out the like payments as he made when he went in, an agree- ment that the tenant shall pay on leaving will exclude a claim by the landlord for payment under the custom for manures, &c., upon his coming in. [Clarke v. Roystone, 13 M. & W. 752.) Bate of pay- Where under an agreement an outgoing tenant latedby^" is to be paid for certain matters, the payment custom. must be in accordance with the custom. Thus, a stipulation that the outgoing tenant should be paid for straw, was held in accordance with the custom to mean straw at a fodder price, viz., one- half the market price. {Clarke v. Westrope, 25 L. J., C. P. 287.) Eights -when The custom by which a tenant was entitled to teSSSIs'^'^' away-going crops upon the regular expiration of otiier™e a Lady-day tenancy, was held to be excluded where regular the tenancy was determined on the 1st of June expiration. ^^ ^^ ^^^^g^ {Tliorpe V. Eyre, 1 A. & E. 926; and see Whittaker v. Barker, 1 Or. & M. 113.) If the tenant become bankrupt, his trustee, whether he disclaim the lease or not, wHL not be allowed to sell off crops, manure, hay or straw, contrary to the provisions of the lease {Ex parte Whittington, Buck, 87; Ex parte Maundrell, 2 Mad. 315) ; but he will be entitled to an off-going crop, if the bankrupt would have been so entitled at the expiration of the lease, and the possession of the premises is, on the application of the lessor, given up to him. BigMto By the terms of the lease, the right to away- away-goinj Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 231 going crops may be made to depend upon the- crops mde- tenant adopting a specified course of husbandry SbSgationa {Holding t. Pigott, 7 Bing. 465) ; but unless this ^^^l^'*- is so, the outgoiag tenant's rights to crops, ia ac- cordance with the custom or his lease, will not depend upon whether or not he has complied with his obligations in respect of the cultivation of the land {Soraston v. Green, 16 Bast, 79, 80); for, in such a case, the landlord would have his remedy agaiast the tenant for breach of covenant or agree- ment, and the tenant would take his crop under the custom. {Holding v. Pigott, 7 Bing. 476.) But where the custom is for a tenant in his last year of tenancy to crop land ta a particular way, as, for instance, to crop one-third of the arable land with wheat, and to reap that wheat after the tenancy has expired, if the tenant crop more than one-third, the landlord will be entitled to the excess {Caldecott v. Smythies, 7 C. & P. 808), unless it were sown with the landlord's permission. {G-riffiths V. Tombs, ib. 810.) If an off-going tenant, not having a right to away-going crops, remove them, the landlord and not the incoming tenant would have an action for them. {Davics v. Connop, 1 Price, 53.) An outgoing tenant's interest in the sown land Away-going may be either a possession or merely an easement. SiupiedwiSi Thus in the case of a custom by which the out- pf^^^jon going tenant was entitled to two-thirds of the of land. crops on the land at the end of the tenancy, but he was to cut the whole and keep the fences in repair until it was cut and carried away, it was held that the effect of such a custom was to vest the possession of the field in the outgoing tenant until the crop was carried {Griffiths v. Puleston, 13 M. & W. 358; Beaty v. CHbbons, 16 East, 116); and by the custom or agreement he may have the use of the barns to thrash out his crop. Digitized by Microsoft® 233 LAW OF LANDLORD AND TENAXT. {Becimn v. Lelahay, 1 H. Bl. 5 ; Knight v. Benett, 3 Bing. 364.) But where the custom or agreement is that the landlord shall have the crop at a valuation, all the outgoing tenant can claim is the right to go upon the land to improve the crop whilst growing. {Strickland v. Maxwell, 2 Cr. & M. 639.) If a tenant bound to consume hay or bring on a rateable amount of manure for any sold, sell the hay, the incoming tenant may refuse to allow its removal until the manure is brought on. {Smith v. Chance, 2 B. & Aid. 753.) Who Uabie It usuaUy happens in practice that the off -going teiumt'^°™^ and incoming tenants settle and adjust the com- pensation between themselves, without referring to the landlord ; but whether there is an incoming tenant or not, the person primarily liable to the tenant in respect of his away-going rights is the landlord, and an alleged custom making the in- coming tenant and not the landlord liable would be bad. {Bradburn v. Foleij, L. E., 3 C. P. D. 129 ; 47 L. J., C. P. 331 ; Sucksmith v. Wilson, 4 P. & F. 1083 ; Fai-iell v. Gaskoin, 21 L. J., Ex. 86 ; 7 Ex. 273.) And this is so, even where the landlord is the assignee of the reversion, to whom possession has been yielded up under a notice to quit by the original landlord, although all the rent has been paid to the original landlord. {Womersleij v. Dalhj, 26 L. J., Ex. 219.) How- ever, the primary liability of the landlord may be superseded by a contract between outgoing and incoming tenant, and it is a question of fact to be decided upon the special circumstances of each case, whether or not there has been such a con- tract. No such contract is implied from the mere fact of the incoming tenant entering on the land. {Codd V. Broicn, 15 L. T., N. S. 536.) The tenant cannot by his contract oust the rights of the landlord ; and where by the custom of the Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 233 country the landlord was bound to compensate the outgoing tenant for tillages and things left on the farm, having the right to deduct from the amoimt any rent due, and the outgoing contracted ■with the incoming tenant that the latter should , take to those things, it was held that the latter stood in the place. of the landlord and could deduct from the sum agreed to be paid the amount of rent in arrear. {8tafford v. Gardner, L. E., 7 0. P. 242.) An injunction will be granted to prevent a tenant from removing crops, manure, &c., contrary to the custom of the country. [Onslow v. , 16 Ves. 173.) Sect. 4. — Compenmtion for Improvement& under the AgricuHitral Holdings Act, 1875. The reason that induced the courts to recognize sss soviet, the tenant's claim to emblements and away-going crops, viz., the encouragement of agriculture, has induced the legislature to provide, by 38 & 39 Vict. c. 92 (amended by 39 & 40 Yict. c. 74), for the compensation of outgoing tenants for certain unexhausted improvements. The act is beneficial- in its intention, though somewhat loose in its pro- visions. The act, which is limited to England and inwiiat Wales, commenced from the 14th of February, ^pUeV 1876 (s. 2), and applies only to improvements executed after the commencement of the act (s. 5), upon holdings, either agricultural or pastoral, not less than two acres in extent. (Sect. 58.) It does not apply to a tenancy /or a term existing at the commencement of the act, but does to a tenancy from year to year so existing, unless within two months after the 14th of February, l876, written Digitized by Microsoft® 234 LAW OF LANDLORD AND TENANT. Application to future tenancies. Improve- ments of first class. notice to the contrary was given by either land- lord or tenant. (Sect. 57.) It would also seem to apply to a tenancy from year to year by hold- ing over after the expiration of a term which determines after the commencement of the act. As to tenancies created after the commence- ment of the act, ss. 54 and 56 must be read together ; for s. 66 provides that the act shall apply to every contract of tenancy beginning after the commencement of the act, unless the parties agree in loriUng in the contract of tenancy or otherwise that the act or any part or provision thereof shall not apply to the contract ; while s. 54 provides that nothing in the act shall prevent the parties from entering into and carrying into efEect any such agreement as they shall think fit, or shall interfere with the operation thereof. The joint ope- ration of these sections would seem to be that any provision in a lease or contract of tenancy incon- sistent with the provisions of the act will to that extent exclude the operation of the act, though the parties may not in terms have declared that the act or any part thereof shall not apply. The parties may by reference adopt a part without the whole of the act. (Sect. 55.) Save as expressly therein provided, the act does not affect the rights and remedies of either party under the custom of the country, contract of tenancy, or other contract, or otherwise (s. 60), but provides that the tenant shall not claim com- pensation under the act and under the custom of the country in respect of the same thing. (Sect. 59.) The act provides for cornpensation in the case of three classes of improvements executed after the commencement of the act, and not exhausted at the determination of the tenancy. The first class in- cludes: — drainage of land, erection or enlargement Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 235 of buildings, laying down permanent pasture, making and planting osier-beds, making water meadows or works of irrigation, making gardens, making or improving roads or bridges, making or improving watercourses, ponds, wells, or reservoirs, or works for supply of water for agricultural or domestic purposes, making fences, planting hops, planting orchards, reclaiming waste lands, and warping land. (Sect. 5.) The tenant shall not be entitled to compensation unless these improve- ments are executed with the previous consent in writing of the landlord (s. 10) ; indeed as to most of them the tenant would be guUty of waste if done without the landlord's sanction. {Ante, Chap, v.. Sect. 4.) The improvements are to be deemed exhausted at the end of twenty years. (Sect. 6.) The compensation shall be the amount laid out, less a deduction of one-twentieth for each year the tenancy endures after the year of outlay ; or when the landlord was not at the time of con- sent absolute owner, the compensation " shall not exceed a capital sum fairly representing the ad- dition which the improvement, as far as it con- tinues unexhausted at the determination of the tenancy, then makes to the letting value of the holding." (Sect. 7.) Under this latter clause it seems doubtful whether the compensation is limited to the original outlay, supposing the letting value is increased to an amount which when capitalized is greater than the original outlay, as might happen in the case of under draining. Besides the general deductions hereinafter mentioned, the compensa- tion shall be subject to deduction for want of repair. (Sect. 11.) Improvements of the second class are : boning second land with undissolved bones, chalking land, clay '^^' burning, claying, liming and marling land. (Sect. 5 . ) Notice must have been given in writing to the Digitized by Microsoft® 236 LAW OF LANDLORD AND TENANT. landlord not more than forty-two nor less than seven days before executing the improvement; and if executed after notice to quit, it must have been done with the previous consent in writing of the landlord. (Sect. 12.) These improvements are to be deemed exhausted at the end of seven years (s. 6) ; and the compensation is, "the smn. properly laid out by the tenant on the improvement," less one-seventh part for each year after the year of the outlay. (Sect. 8.) Tiiiid dass. Improvements of the third class are : applica- tion to the land of purchased artificial or other purchased manure, and consumption on the hold- ing by cattle, sheep or pigs of cake or other feed- ing-stuil not produced on the holding. (Sect. 5.) The improvements are to be deemed exhausted at the end of two years. (Sect. 6.) The compensa- tion is " such proportion of the sum properly laid out by the tenant, as fairly represents the value thereof at the determination of the tenancy to an incoming tenant." (Sect. 9.) But no com- pensation will be allowed, when the tenant has taken from the portion of the holding on which the improvement was executed " a crop of com, potatoes, hay or seed, or any other exhausting crop." This clause is likely to produce some difficulty until interpreted hj the courts. All crops — particularly those that mature seed, and green crops in a less degree — are in reality " ex- hausting ;" though, if consumed on the land on which they were grown, they may have the effect of greatly improving the land. But there is another point to be considered. The rule of construction of acts of parliament is, that where several words specifying particular things are followed by a general word, such general word shall be construed as applying only to things ejvsdem generis. {Per Denman, 0. J., Reg. v. Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 237 Neville, 8 Q. B. 463 ; 15 L. J., M. C. 36 ; Sandi- man v. Breach, 7 B. & C. 96 ; Reg. v. Edmundson, 28 L. J., M. C. 213, 215 ; Gunnedad v. Price, 44 L. J., Ex. 44, 45.) It seems doubtful, therefore, whether the words, "or other exhausting crops" extend the section beyond those crops specifically mentioned. No compensation will be allowed for the consumption of cake or other feeding-stuff where the tenant is entitled to payment for the same under the custom of the country or an agree- ment (s. 14), — a provision which seems super- fluous in the face of s. 59, — nor compensation for any larger outlay during the last year of the tenancy than during the three preceding or any less number of years for which the tenancy has endured. And there shall be a deduction of the value of the manure that would have been pro- duced from any hay, straw, roots or green crops sold off the holding during the last two years or less time for wMch the tenancy has endured, except so far as a proper return of manure to the holding has been made in respect of such produce sold off. (Sect. 16.) If the tenant claims under the act for improve- Tenant may ments, he shaU. also be entitled to obtain, according for breaches to the provisions of the act, compensation for °* 'OTenant. breaches of covenant or agreement committed by the landlord. (Sect. 18.) The specific deductions before mentioned from As to de- the compensation in respect of each of the several classes of improvements, are matters of which evidence must be given before the referee or um- pire, who will take them into account in deter- mining the amount of compensation, for each is preceded by the words "in the ascertainment of the compensation there shall be taken into ac- count," &e. The act also provides as to all three classes of tenants' claims, that in " the ascertain- Digitized by Microsoft® 238 LAW OF LANDLORD AND TENANT. ment of " the compensation there shall be taken into account in reduction thereof any benefit given or allowed to the tenant in consideration of his executing the improvement. (Sect. 17.) There are other deductions, applying to all classes of improvements, which will be deducted from the amount actually awarded to the tenant, as sect. 16 provides, that the amount of the tenant's compensation shall be subject to deductions: (1) for taxes, rates, and tithe rent-charge due or becoming due to which the tenant is liable ; (2) for rent due or becoming due [these words seem to be imnecessary, as no rent can become due after the expiration of the tenancy] ; (3) for landlord's compensation under this act. Landlord's A landlord's right to compensation is given by compensa- ggg^^Q-^ 19^ -^yliicli is as follows: — "Where a tenant commits or permits waste, or commits a breach of covenant or other agreement connected with the contract of tenancy, and the tenant claims com- pensation under this act in respect of an improve- ment, then the landlord shall be entitled, by coun- ter-claim, but not otherwise, to obtain, on the determination of the tenancy, compensation in. respect of the waste or breach, subject and ac- cording to the provisions of this act. But nothing in this section shall enable a landlord to obtain, under this act, compensation in respect of waste or a breach committed or permitted in relation to a matter of husbandry more than four years before the determination of the tenancy." Passing over the minor doubts which suggest themselves upon the wording of this section, it seems to amount to a new statute of limitations in cases to which it applies (whatever they may be determined to be). Thus, supposing a tenant for years to commit waste, voluntary or permissive, more than four years before the end of his tenancy, and then Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 239 claim compensation under the act, the landlord lias no remedy, either by action or by cross-claim, for the injury. Except as to waste, however, the section seemB only to relate to tenancies imder a deed, for it speaks of " a breach of coYcnant or other agreement." A covenant must be under seal, and, according to the rule as to matters ejusdem generis {ante, p. 236), "other agreement" would be similarly restraiaed. iloreover, where it does apply, the limit as to four years does not exclude claims for breaches of covenant to repair buildings, &c., not amounting to waste, — it beiag borne iu mind that a tenant from year to year is not liable for permissive waste. {Ante, p. 119.) The provisions as to procedure under the act Erocedmc. seem reasonably clear, and as they will be found in full in the Appendix B., it is only necessary to refer to them briefly here. The tenant must give written notice of his iatention to make a claim a month at least before the termination of the ten- ancy; the landlord may, within fourteen days from the end of the tenancy, give written notice of a counter-claim, both stating, as far as reasonably may be, the particulars of the intended claim. (Sect. 20.) If there be any difEerence on the question of the claims, it must be settled by re- ference (s. 21) to a single referee jointly appointed, or to two, one appointed by each. If to two, and one dies or fails to act, the party who appointed bim may appoint another; notice of every ap- pointment to be given by the one party to the other, i'ourteen days after notice by one party to, and failure by the other party to, appoint a referee, the party giving notice may apply to the county court to make the appointment. Where two referees are appointed they must, before en- tering on the reference, appoint an umpire, and, in case of his death or incapacity before the Digitized by Microsoft® 240 I,AW OF I.ANDLORD AND TENANT. award, must appoint another ; on failure to do so, the county court may appoint one. (Sect. 22.) Either party on appointing a referee may require the umpire to be appoiated by the Inclosure Com- missioners or by the county court, and in the latter ease he shall be so appointed unless the other party dissent, in which case he shall be appointed hj the Inclosure Commissioners. (Sect. 23.) The power of the county court as to appointment of referees or umpire shall be exercised by the judge, or by the registrar with the consent of the parties. (Sect. 24.) The delivery to a referee of his ap- pointment shall be deemed a submission, and neither party shall revoke a submission without the consent of the other. (Sect. 25.) Referees and umpire have power to require production of samples, vouchers and documents, to administer oaths (s. 26), and to proceed ex parte. (Sect. 27.) The award shall, in the case of a single referee, be ready for delivery within twenty-eight days after his appointment ; in the case of two referees, the time may by themselves be extended to forty- nine days. (Sect. 29.) If they fail to award, the umpire has twenty-eight days after notice to him that the matter stands referred to him ; this time may be extended by the registrar of the county court. (Sect. 30.) Certain particulars are to be stated in the award (ss. 31, 32), includ- ing the day for payment of the sum awarded. (Sect. 34.) Costs are in tlie discretion of the referees or umpire subject to taxation by the re- gistrar of the coimty court. (Sect. 33.) The submission may not be made a rule of any court (s. 35) ; but where the sum claimed for com- pensation [Qy. aggregate sum, or sum claimed by either party] exceeds 50/., the award is within seven days, subject to appeal to the judge of the county court, on the ground (1) that it is invalid ; Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 241 (2) for awarding compensation for matters upon ■which the party claiming was not entitled to com- pensation, and (3) for neglecting to award compen- sation for matters in respect of which the party- claiming was entitled. (Sect. 36.) 'By the Con- solidated County Court Orders, 1875 (Order 34), it is provided, that a copy of the award, with a statement of grounds of appeal, shall be filed within four days after delivery of the award. (Rules 1, 2.) A copy of the statement shall be sent by the registrar to the respondent (r. 3), who must within eight days deliver to the regis- trar his reply (r. 4) ; copies of both shall then be sent to the judge, who will appoint the time for hearing. (Rule 6.) The judge may either hear and determine the appeal, or remit the case in whole or in part to the referee or umpire. The decision of the judge shall be final, save that the judge shall [not may], at the request of either party, state a special case on a question of law for the High Court of Justice. (Sect. 36.) Money awarded, including costs, if not paid within four- teen days after the time fixed, shall be recoverable upon order made by the judge, as upon an ordinary judgment in the coxinty court. (Sect. 37.) Costs of proceedings in the county court shall be in the discretion of the court and taxable by the registrar. (Sect. 40.) Sect. 5. — Tenant's LiaUlity for holding over. Where there is a demise of a house or premises. Lessee there is an undertaking by the tenant that he will aeUrerup at the expiration of the term deliver up possession p>^e™^^s- to the landlord. {Henderson v. Squire, 38 L. J., a B. 73 ; L. E., 4 d. B. 170.) If he neglect to do so, and the landlord lets the premises to E.&L. R Digitized by Microsoft® 242 LAW OF LANDLORD AND TENANT. another, and has to pay damages on account of not being able to give possession, the tenant is liable for such damages and costs. {Bramkr/ v. Chesterton, 27 L. J., C. P. 23 ; 2 C. B., N. S. 592.) The tenant is also responsible for the act of his subtenant in holding over, and tmtil absolute pos- session is given continues liable for rent {Harding V. CretJiorn, 1 Esp. 57 ; Ibbs v. Richardson, 9 A. & E. 849), and mil have to bear the costs of an ejectment against the undertenant {Henderson v. Squire, supra), and other special damage resulting from possession not having been dehvered. Where premises are let for a certain term to two persons, and at the end of the term one of them holds over with the assent of the other, both will be liable for the time during which the one holds over. {Christy v. Tancred, 7 M. & W. 127; 9 ib. 438; Tancred v. Christy, 12 ib. 316.) But one tenant cannot make his co-tenant liable by holding over without his assent. {Draper \. Crofts, 15 M. & "W". 166.) Obtaining A porson WTongfully holding possession of here- by^iMntey. ditaments cannot treat the rightful owner who enters as a trespasser. {Butcher Y. 'Butcher, 7 B. & C. 402.) After a tenancy has determined, any act of the landlord showing an intention to take possession is sufficient to re-vest the posses- sion in him, and thenceforth the tenant and those claiming under him are wrongfully in possession and liable to be treated as mere trespassers. {Heij v. Moorhouse, 6 Bing. N. C. 52.) The landlord may assert his right to possession by entry, and expel the tenant. This he may do either by peaceably taking possession {Taunton \. Costar, 7 T. E. 431), by breaking open the door of a house which the tenant has vacated {Turner v. Jfc'i/mott, 1 Bing. 158), or even if the tenant and his family remain in possession the landlord may enter for- Digitized by Microsoft® RIGHTS, ETC. ON DETERMINATION OF TENANCY. 243 cibly and put him out, first requesting him to go, and in case of refusal using only such force as is necessary to overcome his resistance. For a breach of the peace committed in making a forcible entry and expulsion the landlord may become liable to an indictment for breach of the peace, but he wlU not be liable to the other person in damages for trespass and assault. {Damon v. Wilson, 11 Q,. B. 890 ; 17 L. J., Q. B. 196 ; Sarvey y. Brydges, 14 M. & W. 437, 442 ; 1 Ex. 261 ; Delcmy v. Fox, 26 L. J., 0. P. 5.) It is always dangerous, how- ever, to trust to force to obtain possession, and where it cannot be obtained without personal violence the wiser course is to proceed by ejectment. i^Q&post, Chap. XI.) In addition to his other liabilities a tenant may, by holding over, become responsible for double value or double rent. By 4 Geo. 2, o. 28, s. 1, it is enacted, that " In Double case any tenant or tenants for any term of life, lives or years, or other person or persons who are or shall come into possession of any lands, tene- ments or hereditaments, by, from or under or by collusion with such tenant or tenants, shall wilfully hold over any lands, tenements or here- ditaments, after the determination of such term or terms, and after demand made and notice in writing given for delivering the possession thereof, by his or their landlords or lessors, or the person or persons to whom the remainder or reversion of such lands, tenements or hereditaments shall belong, his or their agent or agents thereunto lawfully authorized, then and in such case such person or persons so holding over shall, for and during the time he, she or they shall so hold over, or keep the person or persons entitled out of possession of the said lands, tenements or heredi- taments as aforesaid, pay to the person or persons R 2 Digitized by Microsoft® 244 LAW OF LANDLORD AND TENANT. SO kept out of possession, their executors, adminis- trators or assigns, at the rate of double the yearly value of the lands, tenements and hereditaments so detained, for so long as the same are detained," to be recovered by action, against the recovering of which said penalty there shall be no relief in equity. This is a penal statute, and is to be construed strictly, and the action does not lie against a weekly tenant who is not a tenant " for life, lives or years" {Lloyd v. Boshee, 2 Camp. 453), nor against a quarterly tenant. {Wilkinson v. Mall, 3 Bing. N. 0. 631.) The act applies only to a "wilful" and contumacious holding over, and not to a holding over under a bona fide mistake as to the tenant's own rights ( Wright v. Smith, 5 Esp. 203) ; or where there is a dispute as to the land- lord's title {Sioinfen v. Bacon, 30 L. J., Ex. 33 ; 6 H. & N. 846) ; or where the premises are held over by a sub-tenant without the tenant's authority or assent. {Bands v. Clark, 19 W. E. 48.) The requirement of the act of "a demand made and notice ia writing given," wiU be satisfied, in the case of a tenant from year to year, by a valid written notice to quit without further demand. {Eirst V. Horn, 6 M. & "W. 893.) In the case of a tenant for a term of years, the demand may be served either previous to the expiration of the term {Cutting v. Derhij, 2 "W. Bl. 1075), ia which case the landlord would be entitled to double value from the end of the term {ih.), or the demand may be made withia reasonable time after, if the land- lord have done no act in the meantime to acknow- ledge the continuation of the tenancy, and he will thereupon be entitled to double value as from the time of such demand. {Cohb v. Stokes, 8 East, 358.) In estimating value, only land and buildiags Digitized by Microsoft® EIGHTS, ETC. ON DETERMINATION OF TENANCY. 245 can te included; and where part of a mill with driving power for macMnery was let, double value of the power was held not recoverable. (Mobinson T. Learoyd, 7 M. & W. 48.) Double value cannot be distraiued for {Tinimins V. RoicUnson, 3 Burr. 1605), but can be recovered by action in the High Court of Justice, or in the county court if the claim is not above 50^. ( Wick- ham V. Lee, 18 L. J., Q. B. 21), and is recoverable after the landlord has recovered in ejectment. {Soulshy V. Neving, 9 East, 310.) The action being for a penalty must be brought within two years (3 & 4 Will. 4, c. 42, s. 3), and it can only be maintaiaed by the landlord or reversioner, and not by a new lessee whose term is to begin on the ending of the tenancy of the tenant holding over. {BMchford v. Cole, 5 C. B., N. S. 514.) Acceptance of single rent waives the right to double value. {Doe v. Batten, 9 East, 314, n.) By 11 Geo. 2, c. 19, s. 18, it is provided, that Double " In case any tenant or tenants shall give notice of '™ ' his, her or their intention to quit the premises by him, her or them holden, at a time mentioned in such notice, and shall not accordingly deHver up the possession thereof at the time in such notice contained, then the said tenant or tenants, his, her or their executors or administrators, shall from thenceforward pay to the landlord or landlords, lessor or lessors, double the rent or sum which he, she or they should otherwise have paid, to be levied, sued for, and recovered at the same time and in the same manner as the single rent or sum before the giving of such notice could be levied, sued for or recovered, and such double rent or sum shall contiaue to be paid during aU the time such tenant or tenants shall continue in possession as aforesaid." This act, it will be observed, applies only where Digitized by Microsoft® 246 LAW OF LANDLORD AKD TENANT. the tenant has given a notice binding upon him to quit at the expiration of the term specified in the notice, and upon which the landlord might at that time act and bring ejectment. {Johnstone V. Hiidleston, 4 B. & 0. 935, per Bayley, J.) The notice to quit need not be in writing. [Tim- mins Y. RowUmon, 3 Burr. 1603.) A tenant holding over and paying double rent may quit at any time without a fresh notice to quit. [Booth V. Macfarlane, 1 B. & Ad. 904.) Double rent may be recovered by distress or by action, which, where the amount claimed does not exceed 50/., may be brought in the county court. ( Wickham V. Lee, 12 Q. B. 521.) Digitized by Microsoft® ( 247 ) CHAPTER X. ASSIGNMENTS AND UNDERLEASES. The original parties to a demise may be changed Assign- either hy the lessor assigning his estate or rever- SSy,^ ^™^' sion, or by the lessee assigniag his interest or term, or there may be a change of both parties. As the relation between landlord and tenant has tow affected ever been considered a legal and not an equitable v^ct^c. Is. one {Cox v. Bkhop, 26 L. J., Ch. 389 ; 8 De G., M. & Gr. 816), and as the courts of equity have recog- nized and enforced the principles of common law affecting assignments ( Valliant v. Boclemede, 2 Atk. 546 ; Onslow v. Carrie, 2 Madd. 330 ; Staines v. Morris, 1 Yes. & B. 8), no radical modification of the principles affecting assignments is introduced by the 24th section of the Supreme Court of Judi- cature Act, 1873 (36 & 37 Yict. c. 66) ; notwith- standing those principles have to a considerable extent been based upon the common , law rule, that mere personal contracts or chases in action are not assignable, — a rule which in. equity was to a great extent superseded, since an assignment of a contract was regarded as amounting to an agree- ment to permit the assignee to make use of the name of the assignor in an action upon the con- tract. One material alteration, however, results, viz., the introduction of the equitable doctrine of notice, some of the effects of which wdl be subse- quently pointed out. It is necessary to consider at the outset what covenants or liabilities, express or implied, entered Digitized by Microsoft® 248 LAW OF LANDLORD AND TENANT. Covenants running with the reversion. ments in case of leases not under seal. into by the original parties, attach to the relative positions of landlord and tenant as such, so as to pass to the persons who by substitution may from time to time fill those relative positions. A cove- nant is said to run with the land when either the liability to perform it, or the right to take advan- tage of it, passes to the assignee of the land. A covenant is said to run vsath the reversion when either the liability to perform it, or the right to take advantage of it, passes to the assignee of the reversion. {Spencer's case, 1 Smith's L. C. 67, 7th ed.) Aid such covenants respectively pass to those who come in as well by assignment by ope- ration of law as by act of the parties. At common law covenants ran with the land, but not with the reversion. {Thurshy v. Plant, 1 Wms. Saund. 240 d, n. (o).) This was remedied by 32 Hen. 8, c. 34, which placed the assignee of a reversion in the same position as to suing and being sued in respect of covenants and agreements in a lease as the original lessor. The statute only applies to leases under seal [Brydges v. Leids, 3 Q. B. 603 ; Standen v. Chrismas, 10 Q,. B. 135 ; Biclcford v. Parson, 5 C. B. 921), and to covenants running with the land {Thurshy v. Plant, supra) ; and as the same rule applies to the term {Elliott v. John- son, 36 L. J., Q,. B. 50), assignees of landlord and tenant are now on the same footing. Although the statute 32 Hen. 8, c. 34, does not apply to lettings not under seal, yet if on the death of the landlord {Cornish v. Stiibhs, L. E., 6 C. P. 334; 39 L. J., C. P. 202) or other assign- ment of the reversion {Wyatt v. Cole, 36 L. T. 613), a tenant not holding by a demise under seal continues to pay rent to the person in whom the reversion has vested, this is evidence that the latter has assented to the tenant continuing on all the terms of the original letting. Again, if the Digitized by Microsoft® ASSIGNMENPCS AND UNDERLEASES. 249 tenant die or assign his interest, and the executors or assignee continue to pay rent, this raises an implied contract that the landlord accepts the new tenant on the terms of the oiigiaal letting. {BucJc- worth V. Simpson, 1 Or. & M. 834 ; 4 L. J., Ex. 104.) But there must be payment and acceptance of rent or other unequivocal act to show a recog- nition by the landlord of a new tenancy on the terms of the old one [Elliott y. Johnson, L. E.., 2 Q. B. 120; 36 L. J., Q. B. 44); and the ques- tion whether or not the landlord has recognized and adopted such a tenancy is one of fact for the jury. {Smith r. Eggington, L. E., 9 C. P. 145 ; 43 L. J., C. P. 140.) The following rules are established as to cove- covcmmta nants running with the land; (1) all implied ^ri^aS covenants run with the land; (2) so do all ex- ^^'*- press covenants, though assigns are not named, which touch or concern something ia being at the date of the covenant and parcel of the demise. Accordingly it has been held that covenants for quiet enjoyment, for further assurance, for renewal, to pay rent, to repair, to put in repair, to leave in repair, to discharge the lessor from charges ordinary and extraordinary, to cultivate lands in a particular manner, to reside on the premises, not to carry on a particular trade, to iusure the pre- mises, to supply water to houses at a certain rate, and to produce title deeds, run with the land, though the assigns are not named. (See eases cited, Coote, L. & T. 310; Spencer's ease and notes, 1 Smith's L. C.-60, 7th ed.) And so a covenant to pay compensation for injury done to the sur- face by working the mines thereunder. (Aspden V. Seddon, L. E., 1 Ex. D. 496 ; 46 L. J., Ex. 353.) (3) If the covenant be concerning a thing when"as- not iu being at the time of demise, but which is nSmea. to be built or done on the demised premises, it Digitized by Microsoft® 250 LAW OF LANDLORD AND TENANT. though named not hound by collateral covenants. Covenants as to incor- poreal here- ditaments and fixtures. Eestrictive covenants binding by will bind the assigns if the covenantor covenant for himself and his assigns. {Spencer's case, supra; Easterhj v. Sampson, 6 Bing. 644, 652 ; Boughty V. Bowman, 11 Q,. B. 444.) Such is a covenant to bmld a wall, a dwelling-house, or a mill. So a covenant to convey coals along a railway, to he constructed on the demised land {Hemingway v. Fernandes, 13 Sim. 228) ; and a covenant not to assign without licence wHl hind the assigns if named. {Williams v. Earle, L. E., 3 Q,. B. 739; 37 L. J., a. B. 231 ; West v. Bobb, L. E., 4 Q. B. 634; 38 L. J., U. B. 289.) (4) But if the thing to he done he merely collateral to the land, and doth not touch or concern the thing demised in any sort, then the covenant will not extend to the assigns though named; as if the lessee cove- nant for himself and his assigns to huild upon land tchich is no parcel of the demise, or to pay any collateral sum to the lessor or to a stranger. {Spencer's case, supra; and see Thomas v. Sayward, L. E., 4 Ex. 311; 38 L. J., Ex. 175.) Covenants respecting incorporeal hereditaments, as in the case of a right of shooting, or a right to get minerals, stand upon the same footing with covenants respecting land. {Hooper v. Clarh, L. E., 2 Q. B. 200 ; 36 L. J., Q. B. 79 ; Martyn V. Williams, 1 H. & N. 817 ; hut see Stevens v. Copp, 38 L. J., Ex. 31 ; L. E., 4 Ex. 20.) So do covenants as to fixtures, hut not covenants as to chattelsjwhich are not fixtures. ( Williams v. Earle, supra.) Covenants are divisible, and upon a severance of the land or the reversion, the covenants run with the severed parts. {Ticynam v. Pickard, 2 B. & Aid. 105 ; Wollaston v. Halewill, 3 M. & Gr. 322.) The benefit and burden of covenants which do not run with the land or the reversion may never- Digitized by Microsoft® ASSIGNMENTS AND UNDERLEASES. 251 theless pass by reason of notice to the party to te reason of affected. Thus, if a lessor enter into a covenant °° '*' with the lessee that adjoining property shall not he built Upon, or used in a particular manner, any purchaser from the lessor of such adjoining pro- perty -with notice of the covenant -will he hound hy it {Tulk v. Moxhay, 2 Phil. 774 ; Western v. McDermott, 36 L. J., Ch. 76 ; Morland v. Cook, 37 L. J., Ch. 825 ; L. E., 6 Eq. 252 ; Catt v. Tourle, 38 L. J., Ch. 664 ; L. E., 4 Ch. 654) ; and the tenant -will he hound by any restrictive cove- nants the landlord has entered into in respect of the demised property with the adjoining owners. {Wilson V. Hart, 35 L. J., Ch. 569 ; L. E., 1 Ch. 463 ; but see Carter v. Williams, L. E., 9 Eq. 678 ; 39 L. J., Ch. 560.) The assignee of a lease who at the time he acquired his interest ia the premises had notice of any covenant affecting those premises, is boimd by such covenant. {Richards v. Revett, 47 L. J., Ch. 472 ; L. E., 7 Ch. D. 224 ; Liilcer v. Dennis, 47 L. J., Ch. 174 ; L. E., 7 Ch. D. 227.) An underlessee wiU be compelled to observe restrictive covenants con- tained in the origiaal lease. {Parker v. Whyte, 1 H. & M. 167 ; 11 W. E. 683.) It has even been held that an underlessee and his assigns are bound by covenants, of which he has no actual notice, contaiaed iu any assignment of the ori- ginal lease, although the covenantee has no rever- sion in the land. {Clements v. Welles, 35 L. J., Ch. 265 ; L. E., 1 Eq. 200.) But as between the assignor and assignee of an underlease, the latter is held to have constructive notice of the terms of the original lease only when he has had a fair opportunity of ascertaining the terms. {Hyde v. Warden, 47 L. J., Ex. 121 ; L. E., 3 Ex. D. 72.) A lessor may grant or assign his reversion hy Assignment deed, either absolutely or by way of mortgage. ^^^^^^ Digitized by Microsoft® 252 LAW OF LANDLORD AND TENANT. Formerly, upon an assignment of a reversion, it was necessary the tenant should attorn or assent to his new landlord. This formality is dispensed with by 4 Aune, c. 16, s. 9. The operation of this statute was to complete the title of the as- signee of the reversion, so that without attorn- ment by or notice to the tenant, the assignee may re-enter for condition broken. (Scaltock v. Har- ston, L. E., 1 C. P. D. 106 ; 45 L. J., C. P. 125.) Section 10 of the same statute, however, provides that the tenant shall not be prejudiced by pay- ment of rent as before, until the grantee give hun notice of the grant or assignment. If the grantee, whether absolute or by way of mortgage, give notice before the day for payment of rent, this section does not relieve the tenant from liabOity for any rent he may have paid in advance to his former landlord. [De Nicholls v. Saunders, L. E.., 5 0. P. 589 ; Cook v. Ouerra, L. E., 7 C. P. 132 ; and see Moss v. Gallimore, 1 Smith, L. C. 629, 7th ed.) Assignee Upon the puTchase of the reversion, notice of a tenrnt's'^ tenancy is notice of all the terms upon which the equities. tenant holds, and the purchaser takes subject to all the tenant's equities. {Allen v. Anthony, 1 Mer. 282 ; Daniels v. Davison, 16 Yes. 254 ; Car- roll V. Keays, 22 W. E. 243 ; Cavander v. Butteel, L. E., 9 Ch. 79 ; 43 L. J., Ch. 370 ; but see Cahallero v. Menty, 43 L. J., Ch. 635 ; Phillips v. Miller, 44 L. J., C. P. 265 ; L. E., 9 C. P. 196 ; Smith V. Widhke, 47 L. J., C. P. 282; 26 W. E. 52.) The assignee of the reversion may have an action for rent and for breaches of covenant run- ning with the land, but not for causes of action occurring before the assignment. (Martyn v. Williams, 1 H. & N. 817.) Conditions At commou law a condition could not be appor- on^seTCrance tioued ; and if the reversion were severed, neither Digitized by Microsoft® ASSIGNMENTS AND UNDERLEASES. 253 of the reversioners could take advantage of tlie oftherever- eondition. However, by 22 & 23 Yict. c. 35, s. 3, ™°' in such a case, if the rent is legally apportioned, the assignee of each part of the reversion has in respect of his apportioned rent, &c. the benefit of aU conditions or powers of re-entry for nonpayment incident to the original entire rent. AU tenants other than tenants on sufferance Assign- 1 -, J. 11 •••ii* ments and have, unless restrained by some provision in their underleases leases, the right to dispose of their whole estate ^^ **"^™*- by way of assignment, or to carve out of it some less estate by way of underlease. If a man dis- pose of the whole of his term by deed, it is an assignment, though in form an underlease {Beard- more V. Wilson, 38 L. J., 0. P. 91 ; Piatt, Leases, 10 ; but see S^/de v. Warden, 47 L. J., Ex. 121 ; L. E.., 3 Ex. D. 72), even where he reserves rent to himself, and the deed contains covenants not in the original lease. {Palmer v. Edicards, 1 Doug. 187, n.) If the deed passes a less estate than he has, it is an underlease, though in form an assign- ment. (See Berhy v. Taylor, 1 East, 602.) The difEerence is important. If a lessee dispose of his whole term, reserving rent, he may sue for but not distrain for it. {Preece v. Corrie, 5 Bing. 24 ; Parmenter v. Webber, 8 Taunt. 593.) If he dispose of less than his whole interest he may do either. (See ante, p. 21.) The primd facie right to assign or underlet may covenants be restrained by a proviso, condition or covenant, tions If a lease to a man, his executors, administrators ^|^on. and assigns, contain an absolute proviso against alienation, it is repugnant, and is rejected (Shep. Touch. 123, n.) ; as it will be also if the proviso be uniatelligible. {Doe v. Carew, 2 Q. B. 317.) A condition against assignment without consent is good ; but where there is a stipulation for a for- feiture, the ease must be clearly brought within Digitized by Microsoft® 254 LAW OF LANDLORD AND TENANT. the terms of the condition. {Boe v. Inglehy, 15 M. & W. 465.) A covenant not to assign without consent, is not, it seems, broken ty a specific be- quest of the term. {Fox v. Swann, Sty. 483 ; but see 2 Williams, Bxors. 940, n.) It is not broken by an assignment involuntary or by act of law, as where it vests without specific bequest in the exe- cutors or administrators of the tenant, though, if named in the covenant, they could Tiot assign without consent. {Roe v. Harrison, 2 T. E. 425 ; Lloyd V. Crispe, 5 Taunt. 249.) Neither is it broken by the bankruptcy {Boe v. Bevan, 3 M. & S. 353) or liquidation \)j arrangement of the tenant, by which it vests iu his trustee, or by a subsequent assignment by the trustee {Boe v. Bevan, supra) ; nor by an execution, unless suf- fered for the purpose of evading the covenant {Boe V. Carter, 8 T. E. 57, 300) ; a compulsory sale to a railway or other company {Baily v. Be Crespigny, L. E., 4 Q. B. 180) ; an underlease {Crusoe v. Bugby, 3 WUs. 235) ; an invalid assignment {Boe V. Powell, 5 B. & C. 308) ; an equitable mortgage by deposit {Ex parte Brake, 1 M._,D. & De G. 539), or by an agreement for an assignment followed by possession, but without a formal assignment. {WestY.Bohb, 38L.J.,a B. 289; 39L.J.,Q.B. 191.) But though a covenant against "assign- ment " will not comprehend the cases above men- tioned, those forms of alienation may be restrained by more extended and apt words [Boe v. Bevan, 3 M. & S. 353), and generally where a tenant under- takes not to do or permit any act of alienation, he will be held to have broken his undertaking when he does any act, the legal effect of which is, that alienation is the result. {Bavis v. Eyton, 7 JBing. 154 ; Re Throckmorton, Ex parte Eyston, L. E., 7 Ch. D. 145 ; 47 L. J., Bkcy. 62.) A covenant not to assign or otherwise part with the premises Digitized by Microsoft® ASSIGNMENTS AND UNDERLEASES. 255 for the whole or any part of the term, is hroken by an underlease {Boe v. Worsley, 1 Camp. 20 ; Roe V. Harrison, 2 T. E. 425) ; and a covenant not to let, set or demise for all or any part of the term, includes an assignment. [Greenaway v. Adams, 12 Ves. 395.) Where a lease is made to depend upon the personal occupation of the lessee, it de- termines if he cease to live there, from whatever cause. (Boe v. Clarke, 8 East, 185.) Letting lodgings is not a breach of a covenant not to underlet (Boe v. Laming, 4 Camp. 77); but a covenant not to demise, lease or let the premises or any part, was held to be broken by a partner- ship arrangement by which the incoming partner had exclusive possession of one room. (Roe v. Sales, 1 M. & S. 297.) And where a person re- strained from assignment without licence, obtained the licence to assign to himself jointly with another, and afterwards without consent assigned his remaining interest to that same person, the latter assignment was held a breach of the cove- nant. ( Varley v. Coppard, 20 W. E. 972.) There is no relief against a forfeiture caused by assign- ing without licence. (Sill v. Barclay, IS Yes. 63.) Where a consent to assign is required to be in Licence to writing, an oral one is not sufficient. (Roe v. ^^'^" Harrison, 2 T. E. 425.) If there is a covenant that the consent shall not be withheld except on reasonable objection, and a heavy rent is reserved, a strong ground for refusal must be shovrai. (Shep- pard V. Hong Kong Banking Corporation, 20 W. E. 459 ; but see Treloar v. Bigge, 43 L. J., Ex. 95 ; L. E., 9 Ex. 151.) Where a lease to A. contains a covenant not to assign or underlet without con- sent, and A. with consent agrees to underlet part of the property to B., upon " the like provisions and conditions " as are contained in A.'s lease, the Digitized by Microsoft® 256 LAW OF LANDLORD AND TENANT. Extent of licence. underlease ought to be framed so as to require tlie consent of A. only, and not of the original land- lord to any assignment, &c. by B. ( Williamson v. William-son, L. R., 9 Ch. 729; 43 L. J., Ch. 738.) It is the duty of the lessee and not of the purchaser or underlessee to procure the consent {Lloyd v. Crispe, 5 Taunt. 249) ; and if the intended assignee enters into possession and no consent is obtained, he may leave withouj; giving a notice to quit or becoming liable for rent after he has left. {Crouch V. Tregoning, 41 L. J., Ex. 97; L. E., 7 Ex. 88.) Any licence to assign, underlet or do any act which v^ithout such licence would create a for- feiture or give a right to re-enter under a con- dition or power in the lease, shall, unless otherwise expressed, extend only to the matter specifically authorized to be done, leaving intact aU rights under covenants and powers of forfeiture and re- entry in respect of any subsequent breach of cove- nant or condition, assignment, underlease or other matter not specifically authorized. (22 & 23 Yict. 0. 35, s. 1.) And a Hcenee given to one of several lessees to assign or underlet his share, or do any other act prohibited to be done without Heence, or given to any lessee or any one of several lessees to assign or let part only, or do such prohibited act as aforesaid in respect of part only of the property, shall not destroy the right of re-entry on breach of covenant or condition by the co-lessees or by the lessee in respect (as the case may be) of remaining shares or property. (Sect. 2 ; and see Bumpor's case, 1 Smith, L. C. 41, 7th ed.) All assignments of terms must be by deed, though the leases themselves may be by parol. (29 Oar. 2, c. 3, s. 3 ; 8 & 9 Yict. c. 106, s, 3.) and pass the An assignment must not only be of the whole legal estate, interest of the assignor, but it must put the assignee in possession of the legal estate, and not ments must be by deed, Digitized by Microsoft® ASSIGNMENTS AND TJNDEKLEASES. 257 give him a mere equitable title. {Cox v. Bishop, 26 L. J., Ch. 389.) Thus, the depositee of a lease by way of equitable mortgage is not Uable under the covenants in a lease {Moores v. Choat, 8 Sim. 608 ; 1 Fisher on Mortgages, 22) ; neither is a person in possession imder an arrangement with the lessee who consents to hold the term as trustee. {Walters v. Northern Coal Mining Co., 25 L. J., Ch. 633; but see Wright v. Pitt, 40 L. J., Ch. 558.) An assignment of " personal estate " will pass wimt mii leaseholds. {WhUe v. Hunt, L. E., 6 Ex. 32; p'^^^'^™- Behenhmn v. Bighy, 21 W. R. 359 ; but see Harrison v. Blackburn, 34 L. J., C. P. 109.) But where a lessee grants an underlease securing a rent, which is iacident to the reversion on the underlease, that rent and that reversion and the benefit of all covenants are estates and property which cannot pass by a subsequent mere assign- ment of the original term, nor unless expressly assigned. {Franklin v. Hoives, 19 "W. E. 581, per Stuart, V.-C.) The assignee of a lease must enter into cove- Covenants nants to pay the rent and perform the covenants S^el.''^" contained in the lease and to indemnify the assignor against the same {Pember v. Mathers, 1 Bro. C. _C. 52 ; Staines v. Morris, 1 Yes._& B. 8) ; and the like covenants must be entered into by a railway company taking property under its com- pulsory powers. {Harding v. Metropolitan Bail. Co., 41 L. J., Ch. 371 ; L. E., 7 Ch. 154.) Moreover, there is an implied promise, on the part of each successive assignee of a lease, to indemnify the original lessee against breaches of the covenants in the lease by such assignee during the continu- ance of his own estate and before he assigns over ; and such promise will be implied although such assignee has covenanted to indemnify his imme- E. &L. s Digitized by Microsoft® 258 LAW OF LANDLORD AND TENANT. diate assignor against all subsequent breaches. {Moule Y. Garrett, L. E., 5 Ex. 132 ; 41 L. J., Ex. 62.) lisjiiify _A.n assignment does not discharge the lessee ment^fS' from liability. If by acceptance of rent or in ' other ways the landlord recognize the assignee as his tenant, that will discharge the lessee from all merely implied covenants, but not from his express covenants. {Aiiriol v. Mills, 4 T. R. 98 ; Thurshy v. Plant, 1 Wms. Saund. 240.) And a lessee who has assigned his term, and whose assignee has been accepted by the landlord, may yet be sued on his express covenants, either hj the lessor or the assignee of the lessor {Barnard v. Godscall, Cro. Jac. 309 ; Brett v. Cumberland, ih. 521) ; and so may his personal representatives having assets. (Sellier v. Casbard, 1 Sid. 266 ; Coghil V. Freelove, 3 Mod. 325.) Of the as- The assignee is liable for breach of any cove- nant running with the land. His liability com- mences from the assignment and continues until he re-assigns to some one else, and no longer. {Onslow V. Corrie, 2 Madd. 340.) Thus, no action will lie against him for a breach of cove- nant happening before the assignment {Church- wardens of St. Saviour v. Smith, 1 W. Bl. 351) ; but it will lie for breaches after the assignment, but before the assignee has taken possession ; e.g., a mortgagee by assignment of the term though not in possession is liable to perform the cove- nants in the lease, not on the score of possession but as assignee. {Williams v. Bosanquet, 1 B. & B. 238.) On the other hand, an assignee is dis- charged from all future liability by a re-assign- ment, even though the assignment be merely for the purpose of getting rid of the liabiLity and be to an insolvent person, and though the person to whom the assignment is made never enters into Digitized by Microsoft® Bignee. ASSIGNMENTS AND UNDEKLEASES. 259 possession or accepts the lease {Taylor v. Shum, 1 B. & P. 21 ; Paul v. Nurse, 8 B. & C. 486 ; Valliant v. Bodemede, 2 Atk. 546; Onslow v. Corrie, 2 Madd. 330), unless the assignment he merely colourahle and fictitious. (Philpot v. Soare, Amh. 480 ; Onslow v. Corrie, 2 Madd. 341.) If part only of the estate he re-assigned, the assignee wiU. still remain liable in respect of the part retained hy him. {Congham v. King, Cro. Car. 221.) The assignee of the lease wUl have a right of action against the lessor or his assigns for breach of any coyenant running with the land. Inasmuch as an assignee of leaseholds becomes Assign- liable to pay rent and perform the covenants in Seiio'ids the lease, an assignment of leaseholds can never ^•^^^ be treated as volimtary and set aside under 27 <=.4. Eliz. c. 4. {Price v. Jenkins, L. E., 5 Ch. D. 619; 46 L. J., Ch. 805 ; Ex parte Dalle, Ee Dohle, 26 W. E. 407; Horrocks v. Rigby, 26 W. E. 714.) An assignment involuntary or by operation of Assign- law takes place upon the death, bankruptcy or ^"ISationof liquidation by arrangement of the lessee, upon the ^'"• lease being taken and sold under an execution, and, in the case of a female lessee not entitled to the term for her separate u^e, by her marriage. Upon the death of a person, aU. his terms of By death, years and chattels real vest in his executor or administrator. And they so vest notwithstanding they may be specifically bequeathed; nor is the legatee entitled to enter until the bequest is assented to by the executor or administrator. (1 Wms. Exors. 679, 7th ed.) There is an im- portant distinction as to the time when a term of years vests in an executor, and in an administrator. An executor derives his title from the wiU itself, not from the probate, which is merely evidence of the will, and the property vests in him from s2 Digitized by Microsofi® 260 LAW OF LANDLORD AND TENANT. the moment of the testator's death. ( Woolley v. Clark, 5 B. & Aid. 744; 1 Wms. Exors. 293, 7th ed.) He may do almost all the acts incident to his office before probate. Thus, he may assent to a bequest of the term, or assign or surrender the term, and such acts are effectual though he die without proving the will, if the will be in fact subsequently proved by somebody. {Johnson v. Warwick, 25 L. J., 0. P. 102; 1 Wms. Exors. 303, 7th ed.) If, however, acts done before probate are relied on for title or are sought to be enforced, the will must be authenticated by subsequent probate. {lb. 304, 7th ed.) With an administrator it is dif- ferent. He derives his title from the appointment of the court. He has no title until letters of admi- nistration are granted to him, and the property only vests in him from that time. ( Woolley v. Clark, supra ; 1 Wms. Exors. 404, 7th ed.) So that an assignment or surrender of a lease, or an assent to any disposition thereof, by the administrator before letters is of no validity, notwithstanding he may have acted as executor cle son tort. {Doe v. Glenn, 1 A. & E. 49; Morgan v. Thomas, 22 L. J., Ex. 162; 3 Preston, Abst. 146.) One of several executors or administrators can make an efEeetual disposition of chattels of the testator or intestate. If they or one of them assent to a specific bequest of a lease, the legatee becomes liable as an ordinary assignee. In the case of a testator or intestate dying before 1st January, 1878, if leaseholds are charged with any sum by way of mortgage, equitable hen, or lien for unpaid purchase-money, and the testator have signified no contrary intention, the legatee is entitled to have the mortgage discharged out of the other personal estate. {Solomon v. Solomon, 33 L. J., Ch. 473; Gally.Fenwick,4:3 L. J., Ch. 178; SUIy. Worms- ley, L. E., 4 Ch. D. 665; 46 L. J., Ch. 102, which Digitized by Microsoft® ASSIGNMENTS AND UNDERLEASES. ' 261 decide that the statutes 17 & 18 Yict. c. 113, and 30 & 31 Vict. c. 69, do not apply to leaseholds.) But as to persons dying on or after that date, the before-mentioned acts are to apply, and the de- visee or legatee or heir at law {qu. or next of kin) shall not be entitled to have such sum or sums discharged or satisfied out of the estate of the testator or intestate, unless (in the case of a tes- tator) he shall have signified a contrary intention. (40 & 41 Vict. c. 34.) Where a testator's lease- holds are comprised with real estate in a mortgage, both shall, in the hands of the devisees and legatees thereof, contribute rateably to the payment of the mortgage debt. (Trestrail v. Mason, L. E.., 7 Ch. D. 655;47L. J., Ch. 249.) An executor, generally speaking, cannot waive a term of years, though it is worthless, for he must renounce the executorship in toto or not at all ; yet, if the value of the land is of less amount than the rent, and there is a deficiency of assets, he may waive the lease. If there are assets, he must pay the rent as long as the assets hold out, and then waive. (Wms. Exors. 680, 1757.) For rent due and breaches of covenant committed in the lifetime of the tenant, the executor or ad- ministrator is liable in his representative capacity, but only so far as he has assets (2 Wms. Exors. 1753 ; Bullen & L. PI. 212) ; for rent accruing due and breaches committed after the death of the tenant, the executor or administrator may be sued either in his representative capacity or per- sonally as assignee of the term (ib.) ; and it seems that with respect to breaches of covenant after the death of the testator, the executor is liable de bonis propriis as assignee of the term {Tilney V. Norris, 1 Ld. Eaym. 653; Sleap v. Neuman, 12 C. B., N. S. 116), except that as to covenants to pay rent, his liability does not exceed what the Digitized by Microsoft® 262 LAW OF LANDLORD AND TENANT. property is worth. {Buberi/ v. Stevens, 4 B. & Ad. 241.) An executor de son tort is personally liable on the covenants in a lease. ( Williams v. Heales, 43 L. J., C. P. 80 ; Paull v. Simpson, 9 Q. B. 365.) But an executor or administrator may discharge himself from all personal Hahihty by an assignment of the term {Rowley v. Adams, 4 My. & Or. 534) ; and an ample means of pro- tectiQg himself is now given by 22 & 23 Vict, c. 35, s. 27, which provides that where an executor or administrator, after satisfying aU Habilities ac- crued due and claimed under a lease to the tes- tator, and setting apart a sufficient sum to answer any future claim in respect of any fixed and ascer- tained sum under the lease, has assigned the lease to a purchaser, and distributed the residuary estate, he shall no longer be personally liable ia respect of any subsequent claim under the lease ; but the lessor may follow the assets distributed. (See Bodson V. Sammell, 30 L. J., Ch. 799 ; Crook v. Sendry, 26 W. E. 325.) Byb?^- Under the Bankruptcy Act, 1869 (32 & 33 Squi^tion Vict. c. 71), upon a composition under sect. 126, mentf'"'^^ the property of the debtor never ceases to be his property. {Ex parte Jones, 23 W. E. 886; L. E., 10 Ch. 663; 44 L. J., Bkcy. 124; ReEearley and Clayton's Contract, 47 L. J., Ch. 474 ; L. E., 7 Ch. D. 615.) Upon the bankruptcy or liquida- tion by arrangement imder sect. 125, the whole of the bankrupt's or liquidating debtor's property (s. 15), including of course his terms of years and chattels real, vest, upon his appointment, in the trustee (s. 17 ; Ex parte Rahbidge, Re Pooley, 26 W. E. 646 ; L. E., 8 Ch. D. 367), whose title to the property shall be conclusively evidenced by the certificate of his appointment signed by the registrar (s. 18; s. 125 (6), which shall be given to him upon his appointment being reported to Digitized by Microsoft® ASSIGNMENTS AND rNDERLEASES. 263 the court (Gr. E. 105), or the resolution for liqui- dation filed (Gr. E. 295), as the case may be. The trustee may sell and assign the property (s. 25 (6), and generally exercise all the rights of the bank- rupt or debtor. (Sects. 22, 25.) "When any pro- perty consists of land of any tenxire, burdened with onerous covenants, or is unsaleable or not readily saleable by reason of its binding the pos- sessor thereof to the performance of any onerous act, or the payment of any sum of money, the trustee, notwithstanding he has endeavoured to sell or has taken possession, or has exercised any acts of ownership in relation thereto, may, by writing under his hand, disclaim such property, and such disclaimer shall operate as a surrender of a lease from the date of the order of adjudica- tion. (Sect. 23.) The trustee may not execute a disclaimer of leaseholds without leave of the court, and, upon application for leave, notice shall be given to such persons as the court shall direct. (Bankruptcy Eules, 1871, r. 28; Re Wikon,lj.U., 13 Eq. 186; 20 W. E. 363.) The exercise of the right to disclaim is Kmited to twenty-eight days after a written application has been made to the trustee by a person interested, to decide whether he wlH disclaim or not, or such further time as the court may allow. (Sect. 24.) An application for extended time should be made within the twenty-eight days. {Ex parte Loverinrj, Re Jones, 43 L. J., Bkcy. 94; L. E., 9 Ch. 590.) _ The court, however, has power to grant an extension of time after the twenty-eight days if sufficient cause be shown. {Ex parte Jloore, Re Stokoe, L. E., 2 Ch. D. 802; 35 L. T., N. S. 386.) Xo appeal lies agaiast an order to disclaim, after the trustee has, in pur- suance thereof, executed a disclaimer. {Re Woods, Ex parte Ditton, 24 W. E. 1008; 45 L. J., Bkcy. 141.) If the trustee elect to disclaim, the lease is deemed to have been surrendered as from the date . . Digitized by Microsoft® 264 LAW OF LANDLORD AND TENANT. of the order of adjudication, and the trustee has none of the rights and incurs none of the liabilities of a tenant after that date. {Ex parte Stephens, Re Lmies, 47 L. J., Bkcy. 22; L. E., 7 Ch. D. 127.) But if he neglect to disclaim, he becomes person- ally liable for payment of the rent and performance of the covenants in the lease {Ex parte Dressier, Re Solomon, 48 L. J., Bkcy. 20 ; Ex parte Hook, 59 L. T. Jour. 230, 248; and see Ex parte Carter, Re Ware, 39 L. T. 185; Ex parte Davies,Re Sneeziim, 45 L. J., Bkcy. 137; L. E., 3 Ch. D. 463); but after the discharge of the trustee the Court of Bankruptcy has no power to make an order upon him for payment of rent. {Ex parte Carter, Re Ware, 27 W. E. 106.) where the bankrupt is only an assignee of a lease, the disclaimer does not, it seems, operate as an actual surrender of the term , but merely wipes out the rights of property and liability of the bankrupt in respect thereof, and does not annul the covenants between the original parties to the lease. {Smyth v. North, 20 W.E. 683 ; L. E., 7 Ex. 24:2, per Martin and Pigott, BB.) As we have before noticed {ante, p. 199), a surrender of a lease does not ordinarily destroy the rights of an underlessee. {Boe v. Fyke, 5 M. & S. 146.) How far a disclaimer by a trustee under sect. 23 may do so is not clear. In a recent case, where a lessee had agreed to grant an under- lease to one who entered upon the property, and the lessee afterwards became bankrupt and his trustee disclaimed the lease, it was held that the under- lessee had no equity to enforce the agreement against the original lessor. {Taylor v. &illott, 44 L. J., Ch. 740 ; 32 L. T., N. S. 795, per Hall, V.-C.) It is to be observed that it was merely an agreement for an underlease on terms ma- terially different from those of the original lease, especially ia not containing a proviso for re-entry on breach of covenants ; but the Yice-Chancellor Digitized by Microsoft® ASSIGNMENTS AND UNDERLEASES. 265 thouglit that where an underlease comprised the same property as the original lease, and contained the same provisions and covenants, much might he said in favour of the view that, notwithstand- ing the disclaimer, the underlease was kept on foot as against the lessor. Any person injured hy the operation of sect. 23 shall he deemed a creditor, and may prove to the extent of his injury. . (Sect. 23.) Where a bank- rupt was lessee of premises for a term of ten years at a rent of 500^., and his trustee disclaimed, and his landlord was unable to relet at so high a rent, it was held that he was entitled to prove for the difference between the present value of the 500/. per annum during the residue of the term and the present value for the same period of the letting value of the premises. {Ex parte Llynvi Coal and, Iron Co., Ee Side, L. E., 7 Ch. 28 ; 41 L. J., Bkcy. 5.) Though a professed imderlease for an equal under- or greater term than the underlessor possesses amounts to an assignment, yet an underlease from year to year {Pike v. ISyre, 9 B. & 0. 909; Curtis V. Wheeler, Mo. & M. 493), or for a term of years {Oxley v. James, 13 M. & W. 209), by" a tenant from year to year, has not that effect ; since his estate is for an indefinite period, and may or may not exceed the term he carves out of it. The relation between an underlessor and his tenant is the ordinary relation of landlord and tenant. Mortgages of leaseholds are frequently by way of underlease. (2 Dav. Conv. 668.) An underlessee in possession is liable for breach of covenants contained in the original lease {Cos&er V. Collinge, 3 My. & K. 283; Wilson v. Sart, 35 L. J., Ch. 569; L. E., 1 Ch. 463), or any subsequent assignment thereof. {Clements v. Digitized by Microsoft® 266 LAW OF LANDLOKD AND TENANT. Welles, 35 L. J., Ch. 265; L. R., 1 Eq. 200.) A different rule prevailed at law, since there was neither privity of estate nor privity of contract between the original lessor and the tinderlessee (Coote, L. & T. 330) ; but even at law the under- lessee was always liable to have his goods dis- trained for rent by the superior landlord, or himself ejected for breaches of covenants contained in the original lease. Digitized by Microsoft® ( 267 ) CHAPTEE XI. EJECTMENT. Sect. 1. — On the Action for the Recovery of Land. To treat of ejectment generally is obviously and especially beyond the scope of this book ; but as it may, happily, be found useful by the reader if we deal briefly with the subject in some of its more usual aspects as between landlord and tenant and their representatives, this chapter is intended to attempt to point out the mode of procedure by which, when a tenancy has expired by effluxion of time, or been determined either by determination of will, demand of possession, notice to quit, dis- claimer, forfeiture, or any of the difEerent methods considered ia a previous chapter (Chap. YIII. ante, p. 195), a landlord may enforce the law, and obtain possession of the lands or tenements wrong- fully withheld from him. Any person who has a legal right to the actual Person possession of lands or tenements, may enter and right'to ^^"' take possession without any legal formality ; but "Si'^mty he must do so peaceably, for to assert his right by enter witix- force (except in manner before indicated, ante, legaifor- pp. 242, 243) is to break the law [Taylor v. Cole, 3 SStV^o T. E. 296; Taunton y. Costar, 7 T. E. 431; Turner peaceably. V. Meymott, 1 Bing. 158; Butcher v. Butcher, 7 B. & 0. 399), and render himself liable to indict- ment. (Burn's Justice, " Forcible Entry.") Where, therefore, the right of entry is fairly con- Digitized by Microsoft® 268 LAW OF LANDLOED AND TEKANT. Period of limitation. E. P. lim. Act, 1874. Special ad- vantages of landlords. At common law. tested, it is always advisable to commence an action for the recovery of the lands or tenements. This action must formerly have heen commenced within twenty years after the right of entry accrued. (3 & 4 Wm. 4, 0. 27, s. 2.) On and after the 1st January, 1879, by the Real Property Limi- tation Act, 1874, which then came into force, the period of limitation was reduced to twelve years after the right of action shall have accrued to the claimant or some person through whom he claims. (37 & 38 Yict. c. 57, s. 1.) In the case of a lease i)j an ecclesiastical or eleemosynary corporation {ante, pp. 27 — 32) voidable by the successors ia title of the original lessor, as not beiag in con- formity with the disabling statutes of Elizabeth, the Statute of Limitations runs agaiast the suc- cessors from the granting of the lease, not from their election to avoid it. {Governors of Magdalen Hasp. V. Knott, L. E., 8 Oh. D. 709; 47 L. J., Oh. 726.) In an action by a landlord agaiast tenant, to recover the possession of lands, houses, and other tenements, the plaiutiff enjoys many special ad- vantages both at common law and by statute. He need not generally prove his own title, for, as we have seen {ante, p. 11), a tenant who has come in under or paid rent cannot, except under very exceptional circumstances, dispute the lessor's title, whether the original lessor or his assignee be plaintiff {Gouldsworth v. Knights, 11 M. & "W. 337; Cuthhertson v. Irving, 29 L. J., Ex. 485); and a person claiming under the tenant is equally estopped {Boe v. Milk, 2 Ad. & E. 17; L. SfJSf. W. Ry. Co. V. West, L. E., 2 0. P. 553), whether he be an assignee of the term or a mere licensee. {Doe V. Baytiip, 3 Ad. & E. 188.) Thus the action as between landlord and tenant is shorn of many of the difficulties usually found ia proceed- Digitized by Microsoft® THE ACTION FOK THE KECOVEKY OF LAND. 269 ings to recover tlie possession of land where the plaintifE must generally recover upon the strength of his own, and not upon any weakness or defect in the defendant's title. {Martin v. Strachan, 5 T. E. 107, «.; Doe v. Thompson, 13 Q. B. 674; Doe V. Powell, 1 Ad. & E. 531 ; Doe v. Barber, 2 T. R. 749; and see Richards v. Richards, 15 East, 294, note {a).) In general therefore the landlord need only Proof by „^ landlord in prove the action (1) The contract of tenancy, which, if by deed ^ve^^oT or in writing, must be done by production of the 1™=^' lease or counterpart {Roe v. Davis, 7 East, 363), ' or, if by parol, by evidence of a person present at the making, or by the oral admissions of the defendant (2 PMl. Ev. 7th ed. 270), which may be admitted to prove the terms of the lease. {Hoioard v. Smith, 3 M. & Gr. 254; and see Slatterie v. Pooley, 6 M. & W. 664.) (2) That he has a legal right to the actual possession of the property by reason of the ex- piration or determination of the tenancy by {a) effluxion of time, or by (5) due notice to quit where the tenancy was from year to year, or for other indefinite periods, as where subsequently to the expiration of the lease the landlord has ac- cepted payment of rent due at a later period, and thereby created a new tenancy from year to year {Doe V. Stennett, 2 Esp. 717; Bishop v. Hoioard, 2 B. & C. 100; Doe v. Amey, 12 A. & E. 476; Doe V. Crago, 6 C. B. 90) ; or (c) by a lawful demand of possession made, as where there exists either by construction of law or otherwise a tenancy at win not yet legally determined by entry or otherwise {ante, p. 4) ; or {d) by breach of cove- nant, proving that the lease contained a proviso or condition of re-entry to take effect on some act or event which has happened, or on the breach of Digitized by Microsoft® 270 LAW OF LANDLORB AND TENANT. some covenant or stipulation which has not been performed {Hayne v. Cummings, 16 C. B., N. S. 421), and that the proviso for re-entry is appli- cable to such covenant or stipulation. {Boe v. Phillips, 2 Bing. 13; Boe v. Golding, 6 Moore, 231; Boe v. Eneller, 4 C. & P. 3; Boe v. Bow- ditch, 8 Q. B. 973.) Proceedings In the last-mentioned event, immediately upon onte^""^ the forfeiture happening the landlord may either feiture. enter and take actual possession {Bavis v. Burrell, 10 0. B. 821 ; Bmis v. Eyton, 7 Bing. 154), or maiatain ejectment without such entry {Goodright V. Gator, 2 Doug. 477; Boe v. Abel, 2 M. & S. 541), which is generally, it is submitted, the most advisable course; but he cannot do anything of the kiud if he waive the forfeiture (not beiug a continuing forfeiture) {Arnshy v. Woodivard, 6 B. & 0. 519 ; and see ante, p. 204), nor after he has parted with his reversion absolutely or by way of mortgage (Fenn v. Smart, 12 East, 444 ; Boe v. Edicards, 5 B. & Ad. 1065 ; Boe v. Ongley, 10 C. B. 25), nor after his reversion has been merged and extiuguished. ( Welb v. Russell, 3 T. E. 393.) But the assignee of the reversion of a lease, con- taining usual power of re-entry to the lessor and his assigns, may maintaiu ejectment on breach of general covenant to repair, without giving notice to the lessee of his beiug entitled to the reversion. {Sealtock v. Earston, 45 L. J., C. P. 125 ; L. E., IC. P. D. 106; 24W. E. 431.) In all cases of ejectment for a forfeiture by a breach of covenant, it rests upon the lessor to show that the lease which he has granted has been for- feited by the lessee. If the covenant be to insure, the plaintifE must prove the omission to do so {Boe V. Whitehead, 8 Ad. & E. 571) ; if it be not to permit a sale by auction on the premises with- out the written permission of the lessor, the plaia- Digitized by Microsoft® THE ACTION FOR THE RECOVERY OF LAND. 271 tiff must give evidence that the sale took place by the permission of the lessee, as well as without the consent of the plaintiff. {Toleman v. Porthury, L. E., 5 Q. B. 288.) Nor, as we have already seen {ante, p. 203), can Non-pay- a landlord take advantage of a forfeiture or main- S' "' tain ejectment for non-payment of rent without a formal demand thereof, unless there be some ex- press condition or proviso in the lease or agreement giving the landlord a right to re-enter and deter- mine the lease or tenancy for such non-payment (Litt. s. 325 ; Doe v. G-olding, 6 Moore, 231 ; Doe V. Kneller, 4 C. & P. 3 ; Brewer v. Eaton, 3 Doug. 230 ; Doe d. Dixon v. Roe, 7 C. B. 134 ; Sill v. Kempshall, 7 0. B. 975; Phillips v. Bridge, L. R., 9 C. P. 48; 43 L. J., C. P. 13), or a right to enter and hold the premises until the arrears be satisfied. (Litt. s. 327 ; Jemott v. Coivley, 1 Saund. 112 c; Doe V. Sorsley, 1 A. & E. 766 ; Doe v. Boulter, 6 A. & B. 675.) If the proviso allow a speci- fied number of days for payment of rent after it becomes due, no forfeiture can accrue by non-pay- ment until such time has elapsed. (Plow. 172 d ; Doe d. Dixon v. Boe, 7 C. B. 134.) We have already considered [ante, p. 203) the nature of the demand which, in the case of non- payment of rent, is necessary to create a forfeiture at common law. By the 0. L. P. Act, 1852, s. 210, in all cases statutory between landlord and tenant, when one half- ^^ererfx' year's rent is in arrear, and the landlord or lessor ^°°^' has by law a right of re-entry for the non-pay- arrearand ment thereof, such landlord or lessor may without distress?^™ any formal demand or re-entry serve a writ of is&isvict. ejectment, and in case of judgment against the "■ '^■ defendant for non-appearance, if it appear to the court by affidavit, or be proved upon the trial, in case the defendant appears, that half a year's rent Digitized by Microsoft® 272 LAW OF LANDLORD AND TENANT. was due before the writ was served, and no suffi- cient distress to be found on the premises counter- vailing the arrears then due, and that the lessor had power to re-enter, then the lessor shall recover judgment and execution in the same manner as if the rent in arrear had been legally demanded and a re-entry made; and in case the tenant shall permit or suffer judgment to be had and recovered and execution to be executed thereon without pay- ing rents and arrears and full costs, and without proceeding for relief in equity (see provisions for relief of tenants against forfeiture, C. L. P. Act, 1860, 23 & 24 Yict. e. 126, ss. 1—11; «»fe,p. 205) within six calendar months after such execution executed, then the lessee shall be barred from all relief or remedy in law or equity, other than by bringing error for reversal of such judgment, and the landlord shall thenceforth hold the premises discharged from the lease. The above section is a re-enactment of 4 Geo. 2, c. 28, s. 2, the true end of which was to limit and confine the tenant to sis calendar months after execution executed for making application for re- lief against the forfeiture, and thus to relieve the landlord from the inconvenience of imcertainty of possession. {Doe v. Lems, 1 Burr. 619.) The assignee of a lessee, whether by way of mortgage or otherwise (Doe d. Whitfield Y.Hoe, 3 Taunt. 402; Williams v. Bosanquet, 1 Brod. & B. 238), and a mere underlessee {Doe v. Byron, 1 0. B. 623), are "tenants" within this section. Bight of re- The right of re-entry must be absolute and un- te*absSute. qualified {Doe v. Bowditch, 8 Q. B. 973), and must be by virtue of some condition or proviso for re-entry contained in the lease or agreement. (2 Chit. Axch. 997 {t), 9th ed.) One half- One half -year's rent at the least must be in I? the St arrear {Hill v. Kempshall, 7 C. B. 975) at the Digitized by Microsoft® THE ACTION FOR THE EECOVEEY OF I,AND. 273 time of the service of the writ {Cotesworth v. must be in Spokes, 2,0_ L. J., C. P. 220), and even due before ^fLued" the writ is sued out. {Doe d. Gretton v. Roe, 4 0. B. 576.) If more than one half-year's rent is in arrear the case is within the section {Doe v. Alexander, 2 M. & S. 525), unless there is suffi- cient available distress to be found on the demised premises " countervailing the arrears due " {Doe v. Wandlass, 7 T. E. 117), i. e. all the arrears, and not merely half a year's rent, where more is due. {Cross V. Jordan, 8 Ex. 149, overruling Doe d. Poicell, V. Eoe, 9 Dowl. 548; Cole, Ejec. 416). The insufficiency of the distress must be clearly insufficiency established. {Doe v. Wandlass, supra.) Every ^^^1^^ part of the premises must be searched {Bees v. Sj?'?'^^^*'*" King, Forrest, 19, cited in Smith v. Jersey, 2 Brod. & B. 514; and see Price v. War wood, 4 H. & N. 512) after the last day for saving the forfeiture, and before the writ is issued, or at all events served. {Doe d. Dixon v. Roe, 7 0. B. 134.) If a broker going to distrain and using reasonable diligence would not find sufficient {Doe V. Franks, 2 C. & K. 678), or if the tenant by locking up the premises prevents the goods from being found {Doe v. Dyson, M. & M. 77; Doe d. Cox V. Roe, 5 D. & L. 272; Romilly v. Fy croft, 4 "W. E-. 26), there is an insufficiency. But the landlord has other and special ad- statutory vantages by statute. The Common Law Pro- ofiandS. ceduxe Act, 1852, which provided a more simple i5&i6Vict. mode of trying the title to lands and tenements 222.^'^^'^^^' than that which had hitherto prevailed, materially benefited landlords (ss. 213 — 217) in actions of ejectment, without disturbing their right to pro- ceed in the ordinary manner, which was, indeed, expressly reserved. (Sect. 218.) By that statute proceedings in ejectment were made somewhat intelligible, even to non-professional persons. The ^- * L. Digitized by Microsoft® T 274 LAW OF LANDLORD AND TENANT. Judicature Acts, 36 & 37 Tict. 0. 66 ; 38 & 39Yict. 0.77. Procedure Tinder C. L. P. Acta yet ia force wliere not inconsistent. 15 & 16 Vict. 0. 76, s. 213. Tenant holding over after term lias expired may be compelled to find sureties for payment of costs and action was commenced by writ of summons, in- stead of as theretofore by declaration, and the use of fictitious names was abolished. But the pro- cedure remained materially different from that pursued in other actions, and the concessions to common sense made by the Act of 1852 only paved the way for the virtual assimilation of this with all other actions under the Supreme Court of Judica- ture Acts, 1873 and 1875. An action for the recovery of land now, with some slight exceptions, proceeds in the same way as any other action. All actions must be commenced by the same form of writ, indorsed in every case with a plain state- ment of the nature of the claim ; and there is now for the first time a uniform system of pleading. But it is necessary to steadily bear in mind that the procedure and practice under the C. L. P. Acts remain in force where not inconsistent with the Judicature Acts and Eules (38 & 39 Vict, c. 77, s. 21), and that the decisions as to the evidence necessary to support the action under the former mode of procedure are applicable to the present. It is therefore necessary to consider briefly the several more important enactments for the benefit of landlords contained in sections 213 —217 of the 0. L. P. Act, 1852, which are similiar enactments to those contaiued in 1 Geo. 4, c. 87. The sections not being set out in full in this chapter should in every case be consulted. By section 213 : Where any tenant holding under a lease or agreement in writing for any term certain, or from year to year, holds over after the term has expired by effluxion of time, or has been determined by a regular notice to quit, and after a lawful demand of possession in writing, refuses to deliver up possession, and the landlord thereupon commences an action of ejectment, he may compel the tenant to find sm-eties for pay- Digitized by Microsoft® THE ACTION FOR THE EECOVERY OF LAND. 275 ment of the costs and damages wMch shall be re- covered in the action before he will be permitted before he to defend it. "^^ '^'*"°^- This section, to compel a tenant to enter into seet. 213 the recognizance to pay costs, &c., does not apply appiyTo to a verbal letting. Doe v. Thrudout, M'Clel. & ^Xut' Y. 492, cited Day, 0. L. Pro. Acts, 207. There ^^S' must be a lease or agreement in writing {Doe d. Bradford v. Roe, 6 B. & Aid. 770); and the or not for a tenancy must have been for a term or number of ot™oS y^ years certain, or from year to year. A tenancy ^°'s^^- of apartments for " three months certain " in writ- ing is sufficient {Boe d. Phillips v. Roe, 5 B. & Aid. 766) ; but a quarterly tenancy, determinable by three months' notice to quit, is not {Boe d. Carter v. Roe, 10 M. & W. 670), nor a tenancy for a term of years " should A., B. and C. so long live" {Boe d. Pemlerton v. Roe, 7 B. & C. 2), nor a fourteen years' lease determinable at option of either party by six months' notice at end of seven years. {Boe d. Cardigan v. Roe, 1 D. & E,. 540.) But it would appear that a tenancy from year to year in writing, supplemented by an agreement that the tenant shall continue tenant so long as the landlord shall continue vicar of A., is not thereby made a tenancy uncertain so as to withdraw it from this section. {Boe d. Netvstead V. Roe, 10 Jut. 925.) The section only applies to terms that have Tei-mnmst expired or been determined by regular notice to pSoT quit. A tenant who has surrendered his term but j^^^f '™' refuses to quit the premises cannot be proceeded against within this section {Boe d. Tindal v. Roe, 2 B. & Ad. 922), nor a tenant who has been per- mitted to hold over for more than a year after his term has expired, a tenancy from year to year having been thereby created. {Boe v. Field, 2 Dowl. 542.) Nor does the section apply where DigitS.e&'by Microsoft® 276 LAW OF LANDLORD AND TENANT. This section is available by tenant against sub- tenant and also to tenant in common. Must be a lawful de- mand in ■writing. Service of the demand. a landlord claims under a proviso for re-entry for non-performance of covenants {Doe v. Sharpley, 15 M. & W. 558), nor where the title is in dispute {Doe d. Sanders v. Roe, 1 Dowl. 4.) Under this section a tenant may proceed against his sub-tenant {Doe d. Watts v. Roe, 5 Dowl. 213), and one of several tenants in common may compel the defendant to give security. {Doe v. Rother- ham, 3 Dowl. 690.) There must have been a lawful demand in writing of possession made and signed by the landlord or his agent. A simple demand of pos- session is advisable {Doe d. Anglesey v. Roe, 2 D. & E. 565) to avoid any difficulty of con- struction, although a notice desiring the tenant to quit the premises " which you hold under me, your term therein having long since expired," was held not to recognize a tenancy from year to year subsequent to the term (as was contended), but to be a mere demand of possession. {Doe v. Inr/Iis, 3 Taunt. 54.) The demand may be served before, and yet take effect only at the expiration of the term, so that it would seem the usual notice to quit is sufficient. Wilkinson v. Colley, 5 Burr. 2694; Hirst V. Sorn, 6 M. & W. 393.) But it is advisable to make a separate and distinct demand of possession, which must be served personally or left at the dwelling-house or usual abode of the tenant. The court or judge must be satisfied that there has been a sufficient refusal, and it is therefore advisable to try and get an express refusal, and, where the tenant or person in posses- sion happens to be absent, to make a further appK- cation. (See Doe d. Selgood v. Roe, 1 "W. W. & H. 206.) Service on a clerk of the tenant at his place of business is not sufficient. (See Mayhury V. Mmlic, 5 C. B. 283 ; Rmsell v. Knon-Jes, 7 Digitized by Microsoft® THE ACTION FOE THE RECOVERY OF LAND. 277 M. & G. 1001 ; Allen v. areensiU, 4 C. B. 100 ; Eeg. V. Hammond, 21 L. J., Q. B. 153.) Haying obtained a siifficient refusal to deliver Proceedings up possession, tte landlord may at once sue out ^tfon a writ of summons for the recovery of land, and ^^t rel^s address a notice, signed by himself or his agent to yield up {Boe d. Beard v. Roe, 1 M. & W. 360) at the foot 5''^^°°- thereof, to the tenant, requiring him, " if ordered by the court or a judge, to give bail by himself and two sufficient sureties conditioned to pay the costs and damages recovered in the action." (C. L. P. Act, 1852, s. 213.) If the notice be signed by an agent no affidavit of agency is neces- sary. [Boe d. Geldart v. Roe, 1 W. W. & H. 346.) The writ and notice appended may then be served in manner hereinafter described. {Post, p. 288.) "When the tenant does not appear the claimant Judgment „ -, . , . ,■*■.-*- ... in default of may sign final judgment, and issue execution in appearance. the usual way. {Post, pp. 301, 304.) When the tenant does appear to the writ, the ^^^^^^^g plaintiS should make an application to the court appear or judge at chambers, founded upon affidavits, to l^Sa compel the defendant to find ball pursuant to the ^^^ section. The affidavits should set forth (1) service judge to of the writ and notice, without which no judgment fendantto in ejectment for want of appearance or defence ^'^''.^!^ can be signed (Eeg. Prac. H. T. 1853, No. 112) ; o/afflda-nts (2) enjoyment of premises by the defendant under (^™?o^of^i a lease or agreement for a term certain, which has ^'^^^^* expired or been determined by regular notice to notice; quit. {Boe v. Boast, 7 Dowl. 487.) The words 'ilZT^Z "a certaia notice to quit" are insufficient. {Boe ^^jln/;*'' V. Bell, 8 Jul-. 1100.) The lease or agreement, ^^Ha^^^^ or counterpart or duplicate, duly stamped before refusal; the application {Boe d. Catdfield v. Roe, 3 Bing. nuaUaiue" N. C. 329 ; Boe v. Ruslmorth, 4 M. & W. 74), must be produced, and the execution proved by affidavit {Boe d. Foucan v. Roe, 2 L. M. & P. 322), ^ Digitized by Microsoft® 278 LAW OF LANDLORD AND TENANT. not necessarily by attesting witness {Boe d. Gow- land V. Roe, 6 Dowl. 35 ; and see C. L. P. Act, 1854, s. 26), but it should not, as is incorrectly said in tbe margiaal note to that case, be annexed to the affidavit; (3) lawful demand of possession and refusal, and (4) the annual value of the pro- perty. It is not essential that the landlord should join in these affidavits if his solicitor or agent can prove the holding and determiaation of the tenancy. But the affidavits should be complete, and in all respects sufficient to establish a prima facte case withiu the section ; for if he fad in his application from a defect in his affidavits, he cannot renew his motion on amended affidavits [Joynes v. CoUin- son, 13 M. & W. 558), or upon new affidavits, unless leave for that purpose be given when the application is discharged. (See Cole, Eject. 383.) Upon a sufficient prima facie case in support being shown, the court or judge will fix a time for the tenant to show cause, &c., and the plaiutiff nisi or sum- may take a rule nisi or summons, which must be served upon the tenant or person in possession, and may require that the claimant may sign judg- ment if the defendant neglect to give security within the time limited {Boe v. Roe, 2 Dowl. 180) ; and if no cause be shown the court or judge wiU fix the sum and time. The security ordered is ordinarily equal to one year's value of the pre- mises, with a reasonable sum for costs {Boe d. 8amp)soii v. Roe, 6 Moore, 54 ; Boe d. Levi v. Roe, 6 C B. 276), to be computed by the master; but the court will not give anythiug for mesne profits ■under this section {Boe d. Sampson v. Roe, supra), or for damages alleged to have been caused to the business by shutting up the premises, by dilapida- tions or the like. {Boe d. Marks v. Roe, 6 D. & L. 87.) Digitized by Microsoft® TTpon primd facie case the court or .iudge will issue a rule THE ACTION FOR THE EECOVERY OF LAND. 279 Upon the rule being made absolute, or the whenruie order granted, it must be drawn up and a copy Ste.^ served on the tenant or his solicitor. If the tenant do not obey within the time allowed, the lessor or landlord upon filing an affidavit that such rule or order has been made, served and not com- plied with, may sign judgment for recovery of possession and costs of suit. If the tenant finds bail, &c. in due time, the plaintifiE may proceed to trial in the usual way. {Post, Sect. 2, " Proceedings in the High Court.") To render a subsequent action of trespass for Damages mesne profits sometimes unnecessary, it was enacted proSs™co- by the 214th section of the 0. L. P. Act, 1852, ^^^^^ that wherever on the trial of any ejectment by is&ieviot landlord against a tenant, such tenant or his '=■'^8,8.214. attorney has been served with due notice of trial, the judge shall permit the claimant, after proof of his right to recover possession, to go into evidence of the mesne profits which have accrued from the determination of the tenant's interest to verdict, or some preceding day specially mentioned therein; and the jury, finding for the plaintiff, shall give their verdict both as to the recovery of the pre- mises and as to amount of damages for mesne profits, and thereupon the landlord shall have judgment accordingly, and shall not be barred from bringing any action for mesne profits accruing between verdict and delivery of possession. This section was in substance a re-enactment sect. 2i4is of 1 Geo. 4, c. 87, s. 2, and is not confined to toca^es""^ cases where security has been given under s. 213. ri^^^*^™' Mesne profits may be recovered under s. 214, been given although the writ and issue do not contain any claim in respect of them {Smith v. Tett, 9 Exch. 307) ; but strict proof of title being required where the defendant does not appear, it is sometimes advisable for a landlord to exercise the option Digitized by Microsoft® 280 LAW OF LANDLORD AND TENANT. No stay of execution ■without tenant finds security not to commit waste. 15 & leVict. c. 76, a. 215. reserved to him (s. 218, C. L. P. Act, 1852) and proceed in tlie usual manner, and afterwards to bring an action for mesne profits, or for double value or double rent {ante, Chap. IX., Sect. 5, pp. 241 — 246), because his title will then be protected by estoppel through the judgment in ejectment. (Day's C. L. P. Acts, 2lO.) It should also be ob- served that the security given pursuant to s. 213 is conditioned " to pay the costs and damages which shall be recovered by the claimants in the action," which includes all damages in respect of mesne pro- fits which may be recovered pursuant to this sec- tion, but not mesne profits, double value or double rent recovered in any subsequent proceedings. At the trial plaintiil must prove himself to be the landlord and defendant tenant of the premises claimed, his right to recover possession thereof, service of notice of trial (unless tenant appears. Doe V. Sodgson, 12 A. & B. 135), and amount of mesne profits due. By s. 215, it was further enacted that where security has been obtained pursuant to s. 213, and the claimant obtaias a verdict, the judge shall not, unless it appear to him that the finding was con- trary to the evidence, or the damages given were excessive, except by consent, stay execution, ex- cept on condition of the tenant's finding security not to commit waste or damage, or sell or carry ofl: any standing crops, hay, straw or manure after verdict and before execution. No order to stay execution wiU be made in cases within this section, except on condition that the defendant actually finds security within four days from the day of trial, unless (1) it appears to the judge who tried the case that the finding of the jury was contrary to the evidence ; (2) or that the damages were excessive ; or (3) by consent. On taking proceedings in error, the defendant Digitized by Microsoft® THE ACTION FOR THE EECOVEEY OF LAND. 281 miist find two additional sureties, although he has before given two under s. 213. (Roe v. Moore, 1 Dowl. 203.) The Judicature Act, 1873, has greatly increased injunction the power of the courts to restrain or prevent com- a^vfct, mission of an alleged or expected wrong, pending sut^aect a the decision of the court as to conflicting claims to the possession of land. Under the C. L. P. Act, 1854, a plaintiff could claim (though not as a matter of right) a writ of injunction against the repetition, continuance or committal of any breach of contract or injury (s. 79), but only after he had commenced an action for such an actually inflicted injury as entitled him to maintain it. The recent enactment effects a manifest improvement. Every branch of the court may now grant an injunction to prevent any threatened or apprehended waste or trespass, "whether the person against whom such injunction is sought is or is not in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title ; and whether the estates claimed by both or by either of the parties are legal or equitable." (Judicature Act, 1873, s. 25, sub-s. 8 ; Wils. 30, 2nd ed.) By s. 216, all recognizances and securities is&ievict. entered into pursuant to s. 215 are to be taken in "' ' ' ^' the same manner as other recognizances of .bail, and actions on them limited to sis months from the delivery of possession. By s. 217, a landlord whose right of entry a. a. 2ir. accrued in or after Hilary or Trinity terms was enabled within ten days to serve writ and to pro- ceed to trial at the ensuing assizes, which other- wise he might be unable to do in many cases ; but the section is inapplicable where the lands lie in London or Middlesex. {Doe d. JVorris v. Boe, 1 Digitized by Microsoft® 282 LAW OV LANDLORD AND TENANT. Where ap- plicable to his ease it is advisable for landlord to avail himself of these special advantages. In cei-tain cases land- lord has other remedies. Dowl. 547.) The Judicature Act, 1873, abolishe'd terms so far as relates to the administratioii of justice, but retains them for determining the time ■within, which any act is to be done. (Sect. 26.) Proceedings under the 217th section are similar to those provided by 11 Greo. 4 & 1 Will. 4, c. 70, s. 36, and apply only to cases where the right of entry accrued dixring or immediately after an issuable term {Doe d. Milner v. Roe, 2 L. M. & P. 578), and not where the title accrued in Michael- mas or Easter terms {Boe v. Roe, 2 Cr. & Jer. 123), or to the case of a tenancy under an agree- ment expiring the day before the first day of term. {Boe d. Summermlle v. Roe, 4 M. & Scott, 747.) The lessor of the plaintiff cannot release the action. (Doe V. .Smrer,_4 M. (& S. 300.) Where applicable to his case it is obviously advisable for a landlord to avail himself of the special advantages afforded by the above sections ; but he is always at liberty (s. 218, C. L. P. Act, 1852), and in some cases has no option but to proceed in the ordinary manner, as where the tenancy was not in writing, or had not expired or been determined by regular notice to quit, or where some forfeiture is relied on, in which cases, though he loses certain advantages, he is gene- rally relieved from the necessity of proving any demand of possession or refusal to give up posses- sion before action. (2 Chit. Arch. N. P. 392.) There are also cases in which a landlord need not go to a superior court at all, but may seek his remedy by action in the county court, or by sum- mary proceedings before justices of the peace in manner hereafter noticed. Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 283 Sect. 2. — Upon the Practice in an Action for the Recovery of Land. In this action tlie writ must now be in the The writ, form prescribed under the Judicature Acts and Eules. (Ord. II. r. 3.) In cases under s. 213, C. L. P. Act, 1852 {ante, p. 274), a landlord pro- ceeding by action of ejectment may, at the foot of the writ, address a notice, signed by himself or his agent {Doe d. Beard v. Roe, 1 M. & W. 360), to the tenant, requiring him to find bail by himself and two sureties conditioned to pay costs and damages recovered in the action. In all cases the inflorse- writ must be indorsed with a plain statement of m5. the plaintifE's claim : e.g., " The plaintiff's claim is to recover possession of a house No. 20, Meet Street," or " of a farm called Blackacre, situate in the parish of Churt, in the county of Surrey ;" but the indorsement need not be perfectly definite and precise, for if defective it may be amended by leave of the court or a judge at chambers, (Ord. III. r. 2), which leave it may be necessary to obtain even to amend the indorsement of a writ not yet served. (Bitt. 1.) It must be remembered in indorsing the writ jomderof that whilst under the former procedure no claim '='''™"- could be joined with a claim for possession in ejectment, except a claim by a landlord for mesne profits against a tenant (0. L. P. Act, 1852, s. 41), now " claims in respect of mesne profits or arrears of rent in respect of the premises claimed or any part thereof, and damages for breach of any contract under which the same or any part thereof are held," may be joined with an action for the recovery of land, which does not include an action for foreclosure. {Taivell v. Slate Co., L. E., 3 Ch. D. 629 ; Ord. XVII. r. 2.) Where considered advisable there should then be added to the indorsement on the writ a concise form of . , Digitized by Microsoft® 284 LAW OF LANDLORD AND TENANT. Indorse- ment of address on ■writ issued out of Lon- don office ■K'here plain- tiff sues by solicitor. claim, as, " and for mesne profits," or " for an account of rent or arrears of rent," or " for breach of covenant for repairs." Other causes of action may also be joined by leave of the court or a judge (Ord. XYII. r. 2 ; see Whetstone v. JDeiris, 45 L. J., Ch. 49 ; L. E., 1 Ch. D. 99 ; 24 W. E. 93), to be obtained before issue of writ (Pi7- cher Y.Hinds, 40 'L. T. 422; 27 W. E. 619); and in a recent case the Master of the EoUs allowed an action for the delivery up of the lease itself to be joined with an action for recovery of possession of the house, stating that he should " always allow claims on a single instrument, for recovery of real and personal estate included in it, to be joined in one action." {Cook v. Enchmarch, L. E., 2 Ch. D. Ill ; 45 L. J., Ch. 604 ; 24 W. E. 293.) A claim for a receiver {Allen v. Kemiet, 24 W. E. 845), and for administration {Kitehing V. Kitehing, 24 W. E. 901), have also been joined in appropriate cases ; but the judge has power, if he thinks the different causes of action cannot be conveniently tried or disposed of together, either to order separate trials of them (Ord. XVII. r. 1 ; and see Child v. Stenning, L. E., 5 Ch. D. 695 ; 25 W. E. 519 ; 46 L. J., Ch. 523), or on the application (which should be by summons) of any defendant to make an order confining the action to such of them as may be conveniently disposed of in one proceeding. {lb. rr. 8, 9.) Where the writ is issued out of the London ofiice it must be indorsed with the address of the plaintiff, and the name and place of business of his solicitor. If such place be more than three miles from Temple Bar an address for service within that limit must be given, and where such solicitor is only agent of another solicitor, he must add to his own name or firm and place of business the name or firm and place of business of the princiBS^/geiipjj^ipj/cro^ted. IV. r. 1.) A plain- PROCEEDINGS IN THE HIGH COURT. 285 tiff suing in person must iadorse upon the -writ wiiere his place of residence and occupation, and if such £™i^er- place he more than three miles from Temple Bar, ^™- an address for service within that limit. [lb. r. 2.) Where the writ is issued out of a district where tte registry, and the defendant must appear there SliVlout {post, p. 294), the solicitor must give on the writ r^^*"*^' the address of the plaiatifE, and his own name or firm and his place of business within the district, as an address for service ; and if such place he not witHn the district, he must add an address for service within the district ; and where the defen- dant does not reside within the district, he must add an address for service withia three mUes from Temple Bar ; and where the solicitor is only- agent of another solicitor, he must add to his own name or firm and place of husiaess the name or firm and place of business of the principal soli- citor. If the plaintiff sue ia person, he must give his place of residence and occupation, and if such place be not within the district, an address for service within the district ; and where the defen- dant does not reside within the district, he must add an address for service vnthiu three miles of Temple Bar. (Ord. lY. r. 3a.) The writ remains ia force twelve, iastead of as Dm-ation of formerly three, (C. L. P. Act, 1852, s. 169) ™'- calendar (Ord. LVII. r. 1) months from date inclusive, and if any defendant has not been served with it the plaiutiffi, by leave of a judge or Renewal of district registrar, on proof that reasonable efforts ™''- have been made to serve the writ, or for other good reason, may renew it for another sik months. (Ord. YIIl. r. 1.) The twelve months must be computed from date of writ {Re Jones, Eyre v. Cox, 46 L. J., Ch. 316 ; 25 W. E. 303), and notwith- standing the power to enlarge the time under Ord. LVII. r. 6, where the claim would otherwise be barred by the Statute of Limitations the court •' Digitized by Microsoft® 286 LAW OF LANDLORD AND TENANT. Concurrent Tvrits. Parties. Trustees of bankrupts, executors and admin- isti*ators. cannot renew the writ. {Boyle v. Kaufman, L. E., 3 Q. B. D. 7; 47 L. J., Q. B. 26.) _ Concurrent writs may be issued at any time within the twelve months for which the original writ is issued, and continue in force as long only as the original. (Ord. VI. r. 1.) The writ must he directed to the persons in possession (that is, actual posses- sion of the premises) by name, and to all persons entitled to defend the possession of the property claimed, which property shall he described in the writ with reasonable certaiaty. (15 & 16 Yict. c. 76, s. 168.) The writ must also state the names of all the persons in whom the title is alleged to be. {lb. s. 169.) Tenants in common may issue a joiut writ to recover the property to which they are entitled. {Elliss v. Elliss, 27 L. J., Q. B. 316.) The christian name and sur- name of each person in possession of aU or any j)art of the property claimed in the writ, whether as tenant or undertenant, should be correctly stated {Doe d. Smith v. Roe, 5 Dowl. 254 ; Doe d. Williamson v. Roe, 10 Moore, 493 ; Doe v. Cock, 4 B. & C. 259 ; Doe v. Gee, 9 Dowl. 612) ; but provided the writ is served on the persons in actual possession, an absolutely correct statement of the names will be unimportant {Doe d. Frost v. Roe, 3 Dowl. 563), as where the tenant is called Jacoh instead of Sarah {Doe d. Foulkes v. Roe, 2 Dowl. 567), or the christian name is omitted {Doe d. Warne v. Roe, 2 Dowl. 517), for the court wiU not set aside the writ or the copy and service for a mere misnomer. {Doe d. Stainton v. Roe, 6 M. & S. 203 ; Wells v. Siiffield, 4 0. B. 750.) Titled persons should be designated by their titles. {La- piere v. Germain, 2 Lord Eaym. 859 ; Welh v. Suffield, siqjra.) Trustees of bankrupts, executors and adminis- trators need not be so described in the writ (Cole, Eject. 94) ; but it is otherwise with churchwardens Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 287 and overseers, who must be so named and de- church- scribed. {Boe d. Llandesilio y. Roe, 4 Dowl. 222 ; orerseers!" Ward V. Clarke, 12 M. & W. 747.) Corporations aggregate should be described by corpora- their corporate name {Boe v. Miller, 1 B. & Aid. 699 ; Woolf v. City Steamboat Co., 7 0. B. 103), and corporations sole by their christian and cor- porate name. (Ad. Eject. 169.) Want of "reasonable certainty" in the descrip- J'/^™''S° tion of the property will not nullify the writ ; but ° ^'^°^^^ ^' will afford ground for an application for better particulars. (15 & 16 Yict. c. 76, s. 175.) But it is always necessary to claim enough, so as to include everything which the claimant seeks to recover, for although he may recover less he can- not recover more than he claims {Demi v. Purvis, I Burr. 327; Guy v. Band, Cro. Eliz. 12) ; whUst remembering that a defendant may defend for part only, and that the verdict may be entered distributively according to the evidence, it is of course desirable to describe the premises with accuracy though in general terms. Any undivided part, share or proportion of houses or lands may be claimed in and by the writ. {Rawson v. May- nard, Cro. Eliz. 286; Doe v. Birkhead, 4 Ex. 110; Ablett V. Skinner, 1 Sid. 229 ; Culley v. Taylerson, II Ad. & E. 1008.) In describing property in the writ it is generally advisable to avoid the word "tenements," which comprises incorporeal hereditaments, for which ejectment will not lie. (Cole, Eject. 88.) A house may be described as "a house" or "dwelling-house" (Royston y.Ecele- ston, Cro. Jac. 654); but the word "messuage" (which "with the appurtenances" may include the curtilage and gardens, Bettisworth's case, 2 Co. E. 31 b) is more correct, and may be used for a stable, bam, church, or chapel. (1 Wms. Saund. 7; HillingsiDorth v. Brewster, 1 Salk. 256; but see Digitized by Microsoft® 288 LAW OF LANDLOKD AND TENANT. Martin v. Davis, 2 Stra. 914.) A "cottage" may be described as such. {Sill v. Giles, Cro. Eliz. 818; Doe v. Sotheron, 2 B. & Ad. 628.) In describing land the name and acreage of the close or field should be given. {Savil's case, 11 Co. E. 55 a ; Hammond v. Savill, 1 Roll. E. 55 ; Ahlett V. Skinner, supra; Palmer's case, Owen, 18; Martyn V. Nichols, Oro. Car. 573 ; Pemhle v. Sterne, 1 Lev. 213 ; Wylces v. Sparrow, Cro. Jac. 435 ; Bacre's case, 1 Lev. 58 ; but see Hutchinson v. Puller, 3 Lev. 97.) Land unless arable should be described as "meadovr," "pasture," &c. (Ad. Eject. 25), and when various sorts of land are claimed the acreage of each should be stated. {Knight v. Symms, 4 Mod. 97.) Inaccuracies in the description are now, how- ever, comparatively unimportant, for an applica- tion for better particulars may be made before appearance. (See Doe d. Vernon v. Roe, 7 Ad. & E. 14; Doe d. Roberts v. Roe, 2 D. & L. 673; Doe V. Turner, 11 C. B. 896 ; 2 Chit. Arch. 984, 9th ed. ; Cole, Eject. 119; Day's C. L. P. Acts, 186.) Service of No service of the writ is required where the defendant by his solicitor agrees to accept service and enter an appearance (Ord. IX. r. 1) ; in other cases the service of the writ (which in proceedings under sect. 213, C. L. P. Act, 1852, should have notice to find bail appended {ante, p. 277) must, wherever practicable, be personal (Ord. IX. r. 2) ; but a judge may order substituted or other service, or the substitution of notice for service, if from any cause the plaintiff is unable to effect prompt personal service. {II.) For various forms in which substituted service has been allowed, see Cook V. Dey, L. E., 2 Ch. D. 218 ; 45 L. J., Ch. 611 ; Cranes. Jullion, L. E., 2 Ch. D. 220 ; 24 W. E. 691 ; Capes v. Brcu-er, 24 W. E. 40 ; Rafael y. Ongley, 34 L. T. 124; Dymond v. Croft, 45 L. J., Digitized by Microsoft® ■writ, PROCEEDINGS IN THE HIGH COURT. 289 Ch. 604 ; 24 W. E. 842 ; Whtteley v. Honeywell, 24 W. E. 851. The service may te effected at when it any hour before midniglit on last day {Boe d. X^tel; Kenrick v. Roe, 5 D. & L. 678), but not on Sun- day (29 Car. 2, c. 7, s. 6) ; and must be on the onwiiom. person or persons in actual possession to whom the writ is directed, as on the sub-tenant where the premises have been sub-let. {Boe v. Cock, 4 B. & 0. 259. As to what constitutes "actual" as distiaguished from "vacant" possession, see post, p. 293.) Personal service on the tenant in possession How and may be effected on the premises or elsewhere Sce'ctea. (Lofft, 301; Savage v. Bent, 2 Str. 1064), in prison {Boe d. Mann v. Roe, 11 M. & W. 77), in a lunatic asylum {Boe d. Gibbard v. Roe, 3 M. & Gr. 87), or abroad. {Boe v. Woodroffe, 7 Dowl. 494.) Personal service on one of several tenants in possession {Boe d. Bailey v. Roe, 1 B. & P. 369), on one of two joint tenants {Boe d. Williamson v. Roe, 10 Moore, 493; Boe d. Clothier v. Roe, 6 Dowl. 291 ; if the notice be not addressed to him. only, Boe d. Braby v. Roe, 10 C. B. 663), on one of several partners {Boe v. Overton v. Roe, 9 Dowl. 1039 ; Boe d. Be^inet v. Roe, 7 C. B. 127), or on an under joiat tenant {Boe d. Hutchinson v. Roe, 2 Dowl. 418), is good service. Even showing the writ to the tenant on the premises is good service, if he refuse to listen to the nature of it or to take it {Boe d. Roberts v. Roe, 6 So. N. E. 833) ; as also off the premises, where attempts are made to serve him with a copy and to explain the matter, and a copy is afterwards left for him on the pre- mises with a servant. {Boe d. Hope v. Roe, 3 C. B. 771.) If the process server, after stating his business, be obstructed in his duty, e.g., turned out of the house {Boe d. Frith v. Roe, 3 Dowl. 569), or forced by third persons from the presence of E.&L. u Digitized by Microsoft® 290 LAW OF LANDLORD AMD TENANT. Service on tenant's ■wife, for- the tenant in possession {Boe d. Mann v. Roe, 11 M. & W. 77), tkrustiag a copy under the door is good service. Formerly service on the tenant's wife on the premises {Thrustouty. Coppin, 2 W. Bl. 800; and meriygood. ggg jQoe d. Eoijle V. Roe, 16 L. J., C. P. 249), not- withstanding the tenant had left the country and settled abroad {Doe v. Roe, 1 D. & E. 514 ; but see Boe d. Sarrison v. Roe, 10 Price, 30) ; or at her husband's dwelling-house, where she resided with him {Boe v. Bayliss, 6 T. E. 765 ; Boe d. Wingfield v. Roe, 1 Dowl. 693 ; Boe d. Graef v. Roe, 6 Dowl. 456) ; or in a shed, where the hus- band carried on Ids business closely adjoining the premises {Boe v. Roe, 1 Dowl. 67), was held good; and even "near the premises" was held sufficient for a rule nisi. {Boe d. Bath v. Roe, 7 Dowl. 692.) Service on the premises upon a woman representing herself to be the tenant's wife {Boe d. Walker v. Roe, 4 M. & P. 11 ; Boe d. Grange v. Roe, 1 Dowl., N. S. 274), and on the vsT-dow in possession as administratrix of a deceased tenant, was held sufficient. {Boe d. Pam- philon V. Roe, 1 Dowl., K S. 186.) Now, however,- the service of the writ in all actions must be effected in the same manner ; and, although the poiat is not free from doubt, it is submitted that service upon the tenant's wife would no longer be held good without an order of the court or a judge. Where, therefore, " prompt personal service " upon the tenant himself cannot be eiiected, the plaintiff will be well advised to apply to a judge in chambers for an order for substituted or other service, for otherwise he will, it is contended, be unable to sign judgment in default of appearance. The application must be supported by affidavit, setting forth the grounds upon which the application is made. (Ord. X.) Now other- wise. Digitized by Microsoft® PROCEEDINGS IN THE HIGH COUKT. 291 Where the action is against Husband and wife, Service seryice on the husband will be sufficient; but the SSsS^tf en- court or a judge may order service on the wife '^™'^' when necessary (Ord. IX. r. 3), as e.g., where the Sd^e. husband happens to be abroad. When an infant is defendant, service on his or infants. her father or guardian, or, if none, then upon the person with whom he or she resides, will be good, unless otherwise ordered. (Ord. IX. r. 4.) When the defendant is a lunatic or person of Lunatioaor unsound mind, service on the committee of the Sma lunatic or on the person with whom the person '™"^' of unsound mind resides, or under whose care he or she is, will, unless the court or a judge other- wise orders, be deemed good service.- (Ord. IX. r.'5.) Service may be effected upon a firm by serving partners. any one of the partners, or, at the firm's principal place of business, upon any person having the con- trol or management of the partnership business (Ord. IX. r. 6), and in a similar manner upon a person trading in the name of a firm. (Ord. IX. r. 6a.) Whenever by any statute provision is made for upon corpo- service of any writ of summons or other process ' upon any corporation or other body or number of persons, the Avrit must be served in manner so provided. (Ord. IX. r. 7.) The mode of service of writs, legal notices and proceedings upon public companies, commis- sioners, &o. is generally defined by the public or private statutes regulating them. Thus the Com- panies Clauses Consolidation Act, 1845 (8 & 9 Yict. c. 16), s. 135, provides that service on the secretary shall be sufficient. (See Wilson v. Cale- donian Bail. Co., 5 Ex. 822, and Thompson v. N. JB. Rail Co., 42 L. T. 95.) So the 7 Will. 4 & 1 Yict. c. 73, s. 26, provides, as to chartered u2 Digitized by Microsoft® 292 LAW OF LANDLOKD AND TENANT. companies incorporated thereunder, for service on the clerk, i. e. chief clerk, &c. ( Walton v. Uni- versal Salvage Co., 16 M. & W. 438.) The 7 & 8 Vict. c. 110 ; The EaHways Clauses Oon- soMation Act, 1845 (8 & 9 Vict. c. 20), s. 138 ; Commissioners Clauses Act, 1847 (10 Vict. c. 16), s. 99 ; Companies Act, 1862 (25 _ & 26 Vict. c. 89), s. 62, and the various acts incorporating the dijffierent companies, &c., must be consulted on this subject as occasion arises, together with the cases of Pilhrow v. Pilbroic's Atmospheric, 8fc. Co., 3 C. B. 730 ; Toicne v. London and Limerick Steamship Co., 6 C. B., N. S. 730; and as to foreign companies, Lngate v. Lloyd, 4 C. B., N. S. 704 ; Newhy v. Van Oppen, L. E., 7 Q. B. 293. "Writs issued against a corporation aggregate may be served on the mayor, head officer, town clerk, clerk, treasurer or secretary of such corpo- ration. (0. L. P. Act, 1852, s. 16, which see.) Service on the matron on the premises and on the secretary, coupled with an acknowledgment by the solicitor of a charitable institution, was held good. {T)oe d. Fishmonger^ Co. v. Roe, 2 DowL, N. S. 689.) Service on the minister and a trustee (Doe d. Smith, Bart. v. Eoe, 8 Dowl. 509), on the sur- viving lessees, and a sextoness (Doe d. Eirschner V. Eoe, 7 Dowl. 97), has been held good in eject- ment for a chajpel. (See also Doe d. Somers v. Roe, 8 Dowl. 292 ; Boe d. Dickens v. Roe, 7 Dowl. 121.) In cases of vacant possession, when it cannot meffluage otherwise be efEeeted, service of the writ must be made (as under C. L. P. Act, 1852, s. 170) by posting the writ on the door of the dwelling-house, or other conspicuous part of the property (Ord. IX. r. 8) ; but service in this manner will not Service on corpora- tions. Charitable institutions. Chapels. Where land Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 293 entitle tlie plaintiff to sign judgment ■without an order (Prac. Eeg. 112, H. T. 1858, post, p. 301; see per Lush, J-., Bitt. 8), and should only be effected as a last resort. What constitutes " vacant possession " may oc- wiiat con- casionally he a question of practical difficulty; vaSnfpos- for there may he a legal or constructive possession session. ■without actual occupation, as during the tenant's absence (Doe d. Johnson v. Eoe, 12 L. J., Q. B. 97), or -where tenant has left beer in the cellar, or hay in a bam. {Savage v. Bent, 2 Str. 1064.) But if the tenant has locked up and quitted the house {Doe v. CocJc, 4 B. & C. 259), or the house has been pulled dowm {Doe d. Norman v. Roe, 2 Dowl. 399, 428), or is untenantable -with no property in it, as unfinished {Doe d. Schovell V. Roe, 3 Dowl. 691), the claimant may proceed as on a vacant possession; but it must clearly appear that there is no tenant in possession {Doe d. Burrows v. Roe, 7 Dowl. 326), for if some only of the houses included in the lease are vacant, the claimant cannot so proceed. {Doe d. Timothy v. Roe, 8 Scott, 126.) In all such cases, as far as possible, copies of the writ should be served on the parties interested and posted up on the premises {Doe d. CMppindak v. Roe, 7 C. B. 125), and service of a writ addressed " to the assignees and personal representatives of A. B., deceased," by posting copies on the door, was held good. {Sar- rington v. Bytham, 2 0. L. E-. 1033.) Service out of the jurisdiction may be aUo^wed Service out by a judge at his discretion, -whenever the whole diction!™^" or any part of the property is -within the jurisdic- tion (Ord. XI. r. 1), upon application for the order, supported by e-pidence sho-wing where the defendant may probably be found, and the ground upon -which the application is made. {lb. r. 3.) The order which must limit a time for appearance Digitized by Microsoft® 294 LAW OF LANDLORD AND TENANT. Date of ser- vice niTist be iadorsed. "Wliere writ maybe issued. Where ap- pearance must be en- tered. Time limited for appearance to writ. {ib. V. 4), should also provide for service of inter- rogatories, if required. {Young r. Bmssey, L. E., 1 Oh. D. 277.) The person serving the WTit must (except in the case of a writ issued pursuant to an order for sub- stituted service under Ord. X., Dijmoncl v. Croft, L. E., 3 Oh. D. 612), as under the C. L. P. Act, 1852, s. 153, within three days at most after such service, indorse on the writ the day of the month and week of the service, otherwise the plaintifE cannot proceed by default for non-appearance (Ord. IX. r. 13), and every affidavit of service of the writ must mention the day on which the indorsement was made. {Ib.) The writ may be issued, in the discretion of the plaintiif, either in London or in any district registry. (Ord. V. r. 1.) If issued in London a defendant must enter his appearance in London. (Ord. XII. r. 1.) If issued in a district registry, any defendant residing or carrying on business within the district must appear there {ib. r. 2) ; but any defendant neither residing nor carrying on business ia the district may appear either ia the district registry or in London. (Ord. XII. r. 3.) If, however, he appear elsewhere than where the writ was issued, he must on the same day give notice of his appearance to the plaintifE or his solicitor (Ord. Xll. r. 6a), so that the plaintifE may now enter judgment in case of default, without searching for appearance, both in London and in the district registry. But he must of course allow time for the notice to reach him in due course of post before entering judgment. (Ord. XIII. r. 5a.) The defendant must enter an appearance to the writ vsithin eight (instead of sixteen, 15 & 16 Yict. c. 76, s. 169) days after service of the writ, in- clusive of the day of service. If the defendant be Digitized by Microsoft® PEOCEEDINGS IN THE HIGH COURT. 295 out of the jurisdiction, he must appear withia the time limited by the order giving leave to effect service. (Ord. XI. r. 4.) In entering an appearance the defendant must How to deliver to the proper officer a memorandum, dated pe^S;.^^" on the day of delivering it, containing the name of his soKcitor, or statiag that he defends in person. (Ord. XII. r. 6a.) If he defends by a solicitor, the solicitor, or where he defends in person he himself, must state on the memorandum his place of busiuess, and if the appearance be entered in London an address for service vsdthin three miles from Temple Bar, or if the appearance is entered in a district registry an address for service within the district. (Ord. XII. rr. 7, 8.) The districts of the district registrars are defined by an Order in Council issued under s. 60 of the Judicature Act, 1873, 12th August, 1875. An appearance may be entered by a third person, though he be not a solicitor. \Oake v. Moorecroft, L. E., 5 Q. B. 76, 78.) If the memorandum does not contain such address, it will not be received ; and if any such address be illusory or fictitious, the appearance may be set aside by the court or a judge on the application, by summons, of the plaintiff. (Ord. XII. r. 9.) Partners sued in the name of their firm must Partners appear individually iu their own names, and the in^dSuy'^ names of all defendants appearing ia the same ^^^^ °™ Bction by the same solicitor must be ia the memo- randum. (Ord. XII. rr. 12, 13.) Any person trading and sued in the name of a firm, must appear in his own name. (Ord. XII. r. 12a.) Upon receipt of the memorandum the officer will enter the appearance in the cause book. {lb. r. 11.) Digitized by Microsoft® 296 LAW OF LANDLOED AND TENANT. whende- A defendant may appear at any time before to^appear. judgment ; but if he appear after the time (eight days) limited for appearance, he must on the same day give notice thereof to the plaintiff's solicitor, or to the plaintiff himself if he sues ia person. (Ord. XII. r. 15.) By giving this notice he will be ia the same position as if he had appeared ia time; but judgment signed after appearance, though plaintiff have no notice, is irregular. [Rhodes v. Bryant, 2 F. & F. 265;' Oake v. Moorecroft, L. E., 5 Q. B. 76, 78.) It is essential that appearances should comply with these requirements, otherwise they may be set aside {Smith v. Wedderhurne, 4 D. & L. 297) ; but if an appearance be entered which is wrong or irregular, it ought to be amended, and not a new appearance entered. {Bate v. Bolton, 4 Dowl. 160, 677.) If the defendant be described ia the writ by initials, or by a wrong name, the appearance should be entered in his true name, as "WiUiam Wells Kilpin, sued as W. W. Kilpin." {Lomaz v. Kilpin, 4 D. & L. 295.) An iafant must appear by his guardian (Co. Litt. 135 b; Carr v. Cooper, 1 B. & S. 230; Jarmaii v. Liccas, 33 L. J., 0. P. 108), in the guardian's own name. {Fitzgerald v. Villiers, 3 Mod. 236.) Tenant, on In Order to afford the landlord a reasonable ^rioFwm,''^ opportunity of himself appearing and defending must give thc possessiou of property ia the occupation of his landlord. tenants, in cases where the claim is inconsistent with his own title, and in order to avoid success- ful collusion between the claimant and the tenant ia possession, it was also enacted, by the C. L. P. Act, 1852, s. 209 (re-enactiag 11 Geo. 2, c. 19, s. 12), that every tenant to whom any writ in ejectment shall be delivered, or to whose know- ledge it shall come, shall forthicifh (/. c. with aU reasonable celerity, per Tiadal, C. J., in Burgess Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 297 V. Boete/eur, 7 M. & Gr. 494) give notice thereof to his landlord, or to his bailiff or receiver, under penalty of forfeiting the value of three years' improved or rack rent of the premises demised or holden iq the possession of such tenant to the person of whom he holds, to be recovered by action in any court of common law having juris- diction for the amount. Under this section, which, it must be remem- sect. 209 is bered, is remedial to the landlord rather than the'ianaiord penal to the tenant, the court will set aside a pf^auo\™e regular judgment and admit the landlord to de- tenant. fend, if the tenant has not given him notice {Boe d. Troughton v. Roe, 4 Burr. 1996 ; Boe d. Meyrick V. Roe, 2 Cr. & J. 682; and see Bobbs v. Passer, 2 Str. 975) ; but not after execution executed, imless in the case of inadvertence {Boe d. Mtil- larhj V. Roe, 11 A. & E. 333 ; Boe d. Butler v. Roe, 2 Har. & W. 130), or of collusion between the claimant and the tenant {Boe d. Thomson v. Roe, 4 Dowl. 115; Goodtitle v. Badtitle, 4 Taunt. 820), which if proved will always insure the interference of the court. {Boe d. Grocers' Co. v. Roe, 6 Taunt. 205.) A tenant to a mortgagor who does not give him notice of an ejectment brought by the mort- gagee to enforce an attornment is not liable to the penalties. {BucMey v. Buckley, 1 T. E. 647.) This section having insured the landlord's ob- f^^^°\ ^^ taining immediate information from the tenant, appearand he was enabled by s. 172, C. L. P. Act, 1852 ";.^^^^ (re-enacting 11 Greo. 2, c. 19, s. 13), to intervene cI'tb, s. m.' and defend. This right is preserved by Ord. Judicature XII. r. 18, which provides, that any person not ord^'xn. named as a defendant in the writ may, by leave ^ ^®' of the court or a judge, appear and defend, on bypersonr filing an affidavit showing that he is in possession Si°the'^t. of the land either by himself or his tenant. Digitized by Microsoft® 298 lAW OF LANDLORD AND TENANT. Under the act of George II. the word " land- lord," which was there used, was construed to ex- tend to any person claiming title consistent with the possession of the occupier, whether he had actually received any rent or not. {Lovelock v. Dancaster, 4 T. R. 122.) Thus a mortgagee out of possession {Boe v. Coojoer, 8 T. E. 645), able to show that he has a bona fide interest in the result {Boe d. Pearson v. Roe, 6"Bing. 613), or an heir who has never heen in possession {Boe d. Hehle- thwaitc V. Roe, 3 T. E. 783 {n), or a remainderman claiming under the same title {Lovelock v. Bancas- ter, 3 T. E. 783 ; but see Wliiticorth v. Humphries, 6 H. & N. 185), or a devisee in trust {Lovelock v. - Bancaster, 4 T. E. 122), or the sub-lessee of three private boxes in a theatre, to the extent of his interest {Croft v. Liimley, 4 E. & B. 608), may be admitted to defend as landlord. But a person who has recovered judgment in ejectment upon a forfeiture of a lease, but has not actually obtained possession {Tlwmpson v. Tomkin- son, 11 Exch. 442), or a third- person claiming ad- versely {Boe d. Jlorton v. Rhys, 2 T. & J. 88), avlII not be permitted to defend as landlord. "Where a person claims in opposition to the title of the tenant ia possession, he can in no light be con- sidered as landlord, and it would be unjust to the tenant to make him a co-defendant, — their de- fences might clash." {Per Lord Mansfield, Fair- claim V. Shamtifk, 3 Burr. 1295 ; and see Brivcr V. Laurence, 2 W. Bl. 1259.) Nor -ndll two per- sons, claiming separately as landlords of the same tenant for the same land {Boe d. Lloyd v. Roe, 15 M. & W. 431), be permitted to defend as land- lords, though one person as landlord for the whole, and another, as assignee of an underlease, as landlord for part, of the premises may be {Chester v. Wortley, 17 C. B. 410) ; and the courts Digitized by Microsoft® PKOCEEDINGS IN THE HIGH COURT. 299 will not set aside a judgment and execution in order to let in a person to defend, though he make an affidavit setting forth a clear title and oiier to pay costs. {Boe d. Ledger v. Roe, 3 Taunt. 506.) The application to be permitted to defend as menap- landlord should be made as soon as the person has ^'permis- notice of the writ, so that an appearance may be le'S'^iouId entered within the eight days allowed for doing temade. so, and the affidavit in support must at least show a prima facie case of possession by the applicant or his tenant. {Croft v. Lumley, 24 L. J., Q,. B. 78.) tJpon complying with the requirements of this rule, the landlord is entitled as a matter of right to be let in to defend, and the com-t or judge has no power, in the case of a landlord residing out of the jurisdiction, to impose upon him the condition of finding security for costs. {Butler v. Meredith, 24 L. J., Ex. 239.) Any j)erson appearing to defend an action for Persons ap- the recovery of land as landlord, in respect of E^Sofalf property whereof he is in possession only by his tenant, must state in his appearance that he appears as landlord. (Ord. XII. r. 19 ; see also s. 173, C. L. P. Act, 1852, which is almost iden- tical in terms.) Under the Judicature Act, 1873 (36 & 37 Yict. stayof pro- c. 66, s. 24, sub-s. 5), the courts are not disabled f^amit from directing a stay of proceedings in any cause *<'°™'^- pending before them, and will in cases of emer- gency restrain actions against tenants subsidiary to an action of ejectment, as where the landlord appears and defends for the whole of the land. The application to stay must be by motion in a summary way, but it does not very clearly appear whether it may be made ex parte, or whether, as is the case ia proceedings under s. 25, sub-s. 8 Digitized by Microsoft® 300 LAW OF LANDLORD AND TENANT. "Where per- son not named in writ has ob- tained leave to appear. A defendant may limit his defence to part only. Defendant's liability for costs. {ante, p. 281), the applicant must proceed by suininons. (See Bleicitt v. Dowling, Bitt. 17.) Where a person not named as defendant in the writ has obtaiaed leave of the court or judge to appear and defend, he must enter an appearance according to the foregoing rules intituled in the action against the party or parties named in the writ as defendant or defendants, and shall forth- with give notice of such appearance to the plain- tiff's solicitor, or to the plaintiff if he sues in person, and shaU. in aU subsequent proceedings be named as a party defendant to the action. (Ord. XII. r. 20.) This rule is substantially the same as rule 113, E. G. H. T. 1853. Any person appearing to the vmt shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty {ante, p. 287) in his memorandum of appearance, or in a notice intituled ia the cause (for form of notice, see No. 7 in Part I. of Appendix (A.) to the Judi- cature Acts), and signed by him or his solicitor, such notice to be served within four days after appearance ; and an appearance where the defence is not so limited shall be deemed an appearance to defend for the whole. (Ord. XII. r. 21 ; and see s. 174, 0. L. P. Act, 1852.) A defendant for part only should not describe it as "freehold" or " copyhold," unless it be so described in the writ. {Boe v. Jones, 1 Camp. 367.) "A right to enter and perform divine service" is not sufficient to entitle a parson to defend for a chapel, &c. {Martin v. Davis, 2 Str. 914.) Each of several defendants who appear will be (in the event of a general verdict for the plaiatilf) liable to pay the whole of the plaintifl's costs, Digitized by Microsoft® PEOCEEDINGS IN THE HIGH COURT. 301 unless he confess the plaintiff's title. (C. L. P. Act, 1852, ss. 204, 205 ; Johnson v. Mills, L. E., 3 C. P. 22; Day's C. L. P. Acts, 185.) If a servant, bailiff or person not claiming any when ae- right or title be served with a writ, he should not n^d'not ap- appear, but suffer judgment by default; other- t>'^'^^- wise he will be personally liable, and the fact of his beiag only a servant wHl not be any defence. {Boe V. Stradling, 2 Stark. 187 ; Boe v. Stanton, 2 B. & Aid. 371.) He should, however, hand the copy writ to his employer, leaving him to obtain leave to appear and defend either as tenant in possession or as landlord, or to act as he may be advised. If judgment be signed against the ser- vant in default of appearance, he wiU not be liable for costs, which would only be payable as damages in a subsequent action for mesne profits, and the judgment by default is then no evidence of his ever having been in possession. [Boe v. Stanton, 2 B. & Aid. 373, per Bayley, J.) If any defendant fail to appear to the writ, the Before pro- plaintiff must, before proceeding upon default of non-™|pear- appearance, file an affidavit of service or of notice Sant?*^" in lieu of service {ante, p. 288), as the case may "p<«i ., 5 C. P. 607; 6 0. P. 180.) At any time before or after defendant hag delivered his defence, before taking any other proceeding (save an interlocutory application) in the action, the plaintiff may by written notice discontinue his action or withdraw any part of his alleged claim, upon paying defendant's costs of the action or occasioned by such withdrawal ; but his doing so will be no defence to any subsequent action. If any further proceeding have been taken, the plaintiff can neither withdraw the record nor discontinue Avithout leave ; but the court or judge before, at or after trial may order discontinuance or the striking out of any part of the alleged claim upon such terms as may seem fit. So also upon terms the defendant may, with, but not without, leave, withdraw or have struck out the whole or part of his defence or counter- claim. (Ord. XXIII. r. 1.) The record may be withdrawn by either party by consent {ib. r. 2, E,. S. C. December, 1876), and the defendant may sign judgment for costs on discontinuance. {Ib. r. 2a.) The plaintiff must deliver his reply, if any, within three weeks after defence dehvered (Ord. XXIV. r. 1) ; after which no further pleading other than joinder of issue can be pleaded without leave {ih. r. 2), which may be obtained upon terms, and then all subsequent pleadings must be dehvered within four days after delivery of pre- vious pleading. {Ib. r. 3.) If the plaintiff does not dehver his reply, or either party fails to dehver any subsequent pleading within the period allowed, the pleadings shall at its expiration be deemed Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 319 closed, and the statements of fact in the pleading last delivered admitted. (Ord. XXIX. r. 12.) If the plaintiff should neglect to reply, it seems that defendant may apply to the court or a judge for an order dismissing the action for want of prosecution under Ord. XXXVI. r. 4 a ; or may, if the plaintiff does not within six weeks give notice of trial, himself do so. [Litton v. Litton, L. E., 3 Ch. D. 793.) The plaintiff may mthout leave amend his Amendment claim once within the time limited for reply and tn^^^ ' before reply, or if no defence has been delivered, then within four weeks from the appearance of the defendant who has last appeared; and so, also, a defendant who has pleaded a set-off or counter- claim may amend the same within the time limited for and before pleading to the reply, or if there be no reply then within twenty-eight days from the filing of his defence. (Ord. XXVII. rr. 2, 3.) Either party may with leave amend his claim, defence or reply at any stage of the proceedings. {lb. r. 1.) In such case the order to amend, if not acted upon within time limited therein, or fourteen days from date thereof, becomes void ipso facto. (Ord. XXVII. r. 7.) GeneraUy, all matters tending to prejudice, embarrass or delay, or scandalous, may be struck out, and all neces- sary amendments made. (lb. r. 1.) Proper amendments maybe made at anytime ; after join- der of issue {Chesterfield v. Black, 25 W. E. 409), after the cause has been entered for trial {Boe v. Davies, L. E., 2 Ch. D. 729), or at the trial. {Budding v. Murdoch, L. E., 1 Ch. D. 42; 45 L. J., Ch. 213 ; King v. Cooke, L. E., 1 Ch. D. 57 ; 45 L. J., Ch. 190.) Where any party has amended without leave, the other may within eight days after the receipt of the amended pleading apply to the court or judge to disallow the same Digitized by Microsoft® 320 LAW OF LANDLORD AND TENANT. {ib. r. 4), or for leave to plead further or amend his former pleading. {Ib. r. 5.) All amended pleadings must be marked with the date of the amending order (if any), and the day on which such amendment is made {ib. r. 9), and deKvered to the other side within the time allowed for amending. {Ib. r. 10.) Where a plaintifE amends his claim after deli- very of the defence three courses are open to the defendant, one of which he must follow. He may either put in a new defence or obtain leave under Ord. XXVII. r. 5, to amend the original defence or proceed with his origiaal defence. In the latter event the amendments ia the claim will be taken to be admitted under Ord. XXIX. r. 12. {Boddy V. Wall, L. E., 7 Oh. D. 164.) All amendments should be in furtherance of justice {Rex v. Mayor of Gi~ampound, 7 T. R. 699), and under the new as under the old system will only be allowed for the "purpose of determining the real questions in controversy between the parties" (Ord. XXVII. r. 1 ; see St. Losky v. Green, 30 L. J., C. P. 19) ; and not to prejudice the other party (see Bradworth v. Foshaw, 10 W. E. 760; Riley v. Baxendale, 30 L. J., Ex. 87; Jacobs V. Seivard, L. E., 6 H. L. 464) ; and ordinarily only on payment of costs. {Wall v. Lyon, 9 Bing. 411 ; Cargill v. Bower, L. E., 4 Ch. D. 78 ; 46 L. J., Ch. 175.) The practice at judges' chambers unhappily continues, notwithstanding that printed lists of the summonses to be taken at different hours are made out, to be as unsatisfactory as ever. Although appeals from interlocutory orders (which are sometimes made in two or three minutes' hurry, bustle and noise at judges' chambers, even in complicated and important cases) lie, first to a divisional court (see Ord. LIV. r. 6), and thence Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 321 to the court of appeal (see Ord. LVIII. r. 2), applications under Ord. XXYII. r. 1, to amend pleadings, whioh may involve the fate of a cause, are matters of practice within the discretion of the judge, with which the court will generally refuse to interfere ( Watson v. Bodwell, 24 W. E. 1009 ; Golding v. Wharton, 8fc. Co., L. E., 1 Q. B. D. 374; 24 W. E. 423), and in these, as in other eases, an appeal is practically useless. Directly either party has joined issue, simply ci°f!j°* without adding any further or other pleading, the ^ ^ ^^' pleadings will be deemed closed (Ord. XXY.) ; hut if it appear to a judge that the issues of fact in dispute are not sufficiently defined, he may direct the parties to prepare issues; in case of difference to be settled by himself. (Ord. XXVI.) Joinder of issue will operate as a denial of Joinder of every material allegation of fact in the pleading of the other side, except facts admitted. (Ord. XIX. r. 21.) The parties being thus fairly at issue, the Notice of claimant should give notice of trial before a judge *""'' or judges, or a judge with assessors, or a judge and jury, or a referee official or special, with or without assessors, the mode being at his option. (Ord. XXXYI. rr. 2, 3.) If he neglects to give such notice within six weeks after close of plead- ings, the defendant may (and will advisably if he have a counter-claim) do so, and himself choose the mode of trial {lb. r. 4) ; or he may apply to the court or judge to dismiss the action for want of prosecution {lb. r. 4a.) But either party may, within four days after receipt of notice of trial, by any mode other than a jury, require and will be entitled to have the issues of fact tried by a jury (ih. rr. 3, 4) ;• and the court or judge may, upon application withia four days from service of the notice of trial, order it to be by any other mode R.&L. Y Digitized by Microsoft® 322 LAW OF LANDLORD AND TENANT. {lb. r. 5), provided that neither party insists upon his right to try by a jury {Sugg v. Silher, L. E., 1 Q. B. D. 362 ; 45 L. J., d. B. 460 ; Clarke v. Cookson, L. E., 2 Oh. D. 746) : such right being absolute in cases merely involving questions of fact {JBordier v. Burrell, L. E., 6 Oh. D. 512 ; 46 L. J., Oh. 615 ; West v. White, L. E., 4 Oh. D. 631; 46 L. J., Oh. 333), but subject to the discretion of a judge in any action which would formerly have been properly brought only in the Oourtof Ohancery. (Ord. XXXYI. r. 26; £ack\. Say, L. E., 5 Oh. D. 235 ; 25 W. E. 392 ; Garlmg V. Boyds, 25 W. E. 123 ; PiUey v. Baylis, L. E., 5 Oh. D. 241.) In all cases the court or judge may order that different questions of fact arising in the action be tried by different modes of trial or at different times, at such place and in such order as seems fit. {lb. r. 6.) But no order to try separate issues separately will, it seems, be granted so as to prejudice either party. {Millissich v. Lloyd, 20 Sol. Journ. 31.) Ten days' notice of trial must be given (unless the other party has consented to take short, i. e., four days', notice. (Ord. XXXVI. r. 9.) The notice must be given before entering the action for trial {ib.. r. 10), and cannot be countermanded except by consent or leave. (J^. r. 13.) It must state whether it is for the trial of the action or of issues therein; and, in actions in the Queen's Bench, Oommon Pleas and Exchequer Divisions, the place and day for which it is to be entered for trial. {Ib. r. 8.) Notice of trial for London or Middlesex wiU not be deemed to be for any particular sittings, but for any day after expiration of the notice on which the trial can come on in its order. {Ib. r. 11.) If the party giving such notice omit on the day after to enter the action for trial, the other party may do so within four Digitized by Microsoft® PROCEEDINGS IN THE HIGH COURT. 323 days. (Ord. XXXYI. r. 14.) But notice of trial elsewhere than London or Middlesex will he deemed to be for the first day of the nest assizes at the place mentioned {ib. r. 12), and either party may enter the action for trial. {Ib. r. 15.) Unless, within sis days after notice of trial is given the cause is entered for trial by one party or the other, the notice of trial wHl be no longer in force. {Ib. r. 10a.) The party entering the action must deliver two fuU copies of the pleadings for the use of the judge {ib. r. 17a), each pleading above ten folios of seventy-two words beiag printed. (Ord. XIX. r. 5.) The judge may postpone or adjourn the trial (Ord. XXXYI. r. 21), upon terms which will generally be onerous to the party applying for the adjournment. {Lydall\. Martinson, L. Ei., 5 Ch. D. 780.) When the action is called on, if the defendant Proceedings does not appear, the claimant may, after proving service of notice of trial {Cockshott v. London- General Cab Co., 47 L. J., Ch. 126 ; 26 W. E. 31), prove his claim, so far as the burden of proof Kes upon him. (Ord. XXXYI. r. 18.) If the claimant does not appear, the defendant, without proving that he has been served with notice of trial {James v. CroiD, L. E.,_ 7 Ch. D. 410 ; 47 L. J., Ch. 200), may have judgment dismissing the action and prove his counter-claim, if he have one. {Ib. r. 19.) Yerdict or judgment obtained in default of such appearance may be set aside upon application to the court or judge withia sis days after trial, upon terms. {Ib. r. 20.) Except that the parties by agreement (which Evidence. should be a formal consent ia writing, New West syafadavit Brewery Co. v. Hannah, L. E., 1 Ch. D. 278) ty consent. may allow, and the court or judge may order, depositions or affidavits to be read, the mode of giving evidence in trials by jury and the rules of y2 Digitized by Microsoft® 324 LAW OF LANDLORD AND TENANT. evidence are unafEected by the Judicature Acts and Rules. (38 & 39 Vict. c. 77, s. 20 ; Ord. XXXVII. r. 1.) When affidavits are used by consent they must be printed (Ord. XXXVIII. r. 6), and the plaintiff must file his within the time agreed or fourteen days after consent, and deliver a list thereof to the defendant {ih. r. 1), who must then within fourteen days file his and deliver a list to the plaintiff {ib. r. 2), who may file afiidavits strictly in reply (but see Peacock v. Haiyer, L. E., 7 Ch. D. 648; 47 L. J., Oh. 238) within seven days thereafter, delivering a list to the defendant {ib. r. 3) ; and either party may, by notice before the expiration of fourteen days after the time allowed for filing affidavits in reply, require the production at the trial of any deponent for cross-examination {ib. r. 4) ; and the party receiving such notice can compel his attendance. {Ib. r. 5.) As to printing, delivery and costs of affi- davits, see Add. Eules. (Orders II., III. and V.) By order. The court may order evidence to be given by affidavit or taken by interrogatories or otherwise before a commissioner or examiner ; but such order will not be made where the other party bond fide desires the production of the deponent for cross-examination and he can be produced. (Ord. XXXVII. r. 1.) Where necessary, a judge may order depositions to be taken, filed and given in evidence. {Ib. r. 4.) Evidence upon motion, peti- tion or summons may be by affidavit, subject to power of the court or judge to order attendance and cross-examination of the deponent. (Ord. XXXVII. r. 2.) Affidavits for use on inter- locutory motions may state deponent's belief and grounds thereof ; those used at trial must state facts mtldn his own knowledge. Hearsay, argu- ment or extracts unnecessarily included will be at cost of party filing the affidavit. {Ih. r. 3.) Digitized by Microsoft® PEOCEEDINGS IN THE HIGH COUET. 325 It does not appear prolDable that eyidence by affidavit will ever become popular, at least ia tbe Conunon Law Divisions of the High Court. Nor is it, perhaps, desirable that parties should forego the advantages derived from that study of the de- meanour of witnesses which juries are accustomed to apply, and weaken the efEect of cross-examiaa- tion by direotiag it agaiast a studied and astound- ingly technical affidavit comprising an esamiaa- tion in chief, carefully prepared by an acute legal adviser. The judge may at or after the trial direct (Ord. judgment XXXYI. r. 22a)— (I.) Judgment to be entered for any or either party absolutely. In such case if the officer present at the trial be not the proper officer to enter judgment, the associate's certificate will be authority to the proper officer {ib. r. 24), a full copy of the pleadings being delivered to him, to enter judgment in a book kept for the purpose. (Ord. XLI. r. 1.) Where the trial has been by jury or before a judge alone, either party may then, without any leave reserved, apply to the Court of Appeal to set aside such judgment and enter any other judgment, on the ground that the judgment directed to be entered is wrong, either with reference to the finding of the jury upon the questions submitted to them, or to the judge's finding. The application to the Court of Appeal must be by motion upon notice. (Ord. XL. r. 4 a ; Jones v. Davis, 36 L. J. 415 ; 25 W. E. Dig. 198.) (II.) The judge may adjourn the case for further consideration, the argument upon which must take place before himself. (III.) The judge need not direct entry of any judgment, but may leave any party to move for it ; in which case, if the claimant do not set down Digitized by Microsoft® 326 LAW OF LANDLORD AND TENANT. and give notioe of motion witliiii ten days after trial, the defendant may do so himself. (Ord. XL. r. 3.) No judgment can be entered without the order of a court or judge. (Ord. XXXYI. r. 22 a.) In all cases other than those in which judgment is to be otherwise obtained under the Judicature Acts and Rules, as in default of appearance (Ord. XIII. rr. 1, 7, 8, ante, p. 304), of pleading (Ord. XXIX. rr. 7, 8, ante, pp. 304, 314), on failure to allow discovery or inspection (Ord. XXXI. r. 20, ante, p. 313), or has been given or directed to be entered by the judge (Ord. XXXYI. r. 22 a, ante, p. 325), judgment must be obtaiaed by motion for judgment (Ord. XL. r. 1) made upon notice with- out any rule to show cause (Ord. LIII. r. 2) within one year from the time when the party became entitled to do so. (Ord. XL. r. 9.) New trial. -^J party desiring a new trial of a cause heard in London or Middlesex, must move a divisional court within four days after trial, or on the first subsequent day on which a divisional court to which the application may be made shaU sit to hear motions, for an order calling upon the other side (upon whom a copy must be served within eight days from date) to show cause at the expira- tion of eight days why a new trial should not be directed. (Ord. XXXIX. rr. la, 2.) If the trial have taken place elsewhere than in London or Middlesex, the motion must be made within the first four days of the next following sittings. {Ih.) .But a new trial will not be granted on the ground of misdirection or improper admission or rejection of evidence, unless the court shall be of opinion that substantial wrong or miscarriage has been thereby occasioned (Ord. XXXIX. r. 3) ; and the court can grant a new trial as to so much of the matter as the miscairiage affects. An order to Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COUET. 327 sliow cause shall be, unless otherwise ordered, a stay of proceedings. {Ih. r. 5.) Judgment having been obtained that one per- Execution, son recover and another person deliver up pos- session of the land, upon filing an affidavit showing due service thereof and that it has not been obeyed, the person prosecuting such judgment may sue out a writ of possession and enforce it in manner heretofore used in actions of ejectment in the superior courts of common law. (Ord. XLYIII. rr. 1, 2.) Sect. 3. — Actions in County Courts for the Recovery of Land. Prior to "The County Courts Act, 1867," actions Actions of of ejectment, or in which the title to any corporeal onginauy hereditament was in question, were excluded from Iromfuris- the cognizance of the county courts (9 & 10 Yict. ^0^™ of o 1/ \ ^ county e. 95, s. 58), except where by agreement the parties courts, 9 & consented to give the court jurisdiction, as they 95, b^ss"' were empowered to do by 19 & 20 Vict. e. 108, s. 23. Litigants, however, rarely agree ; the con- sents were not therefore very numerous, and, with a view to beneficially increasing the jurisdiction of may now bo these very useful courts, the act of 1867 provided, ^S ' that " all actions of ejectment, where neither the 4o™no™'"° value of the lands, tenements or hereditaments, nor ^^^^M-' the rent payable in respect thereof, shall exceed c. 142, s. n.' the sum of twenty pounds by the year, may be brought and prosecuted in the county court of the district in which the lands, tenements or here- ditaments are situate." (30 & 31 Vict. c. 142, s. 11.) As the court is without jurisdiction where either How value ,1 IT i -i i^ ^ L i. aetennmed. the annual value or rent exceeds the sum 01 twenty pounds, proof that such is the case is of course a Digitized by Microsoft® 328 LAW OF LANDLORD AND TENANT. Meaning of ** rent pay- able." complete answer to the action. It is therefore of vital importance that before entering his plaint in the county court the landlord should ascertain that his case is, at least, ia that respect one to which the statute applies. This he can do by taking as his criterion of value the rent at which the pro- perty might reasonably be expected to let to a tenant from year to year, that being the test adopted for the purpose of rating under the Poor Law Assessment Acts. {Elston v. Rose, L. R., 4 Q. B. 4; 38 L. J., Q.. B. 6.) If the premises are held subject to a ground rent, the amount thereof is not to be deducted in estimating the annual value. {lb.) It must, however, be remembered that "rent payable" does not mean a sum which some people are or may be willing to pay for the premises, nor even the rent actually paid by under-lessees, though proof of the amount of such payments would be obviously strong evidence of the real value, but means (where the amounts are different) the rent payable as between the parties to the action. {Broun v. Cocking, L. E., 3 Q. B. 672; 37 L. J., a B. 250.) In cases where, notwithstanding that the annual whCTeaction "^aluc or rent exceeds twenty pounds, the action is ■brought; improperly commenced ia the county court, the defendant may either (1) waive the objection of want of jurisdiction altogether; or (2) he may raise the objection at the trial; or (3) he may, without waiting for the trial {Seicell v. Jones, 19 L. J., Q,. B. 372 ; Waclsicorth v. Queen of Spain, 20 L. J., Q. B. 488), by application to a judge at chambers founded upon an affidavit disclosing all the material facts, obtain a writ of prohibition. Where, however, there is a substantial ground for the objection, it is generally advisable to raise it at the trial, when, if it be overruled, which can though an- nual value exceeds 2QI. Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 329 hardly be the case when the objection is bond fide, or if the judge proceed upon an erroneous mode of calculation, or upon a wrong principle, and assume a jurisdiction he does not really possess, the defendant may either obtain a prohibition before execution issued or appeal to the court above. The act of 1867 further enacted that "The courtsmay county courts shall have jurisdiction to try any questions of action in which the title to any corporeal or in- netthl^mt corporeal hereditaments shall come in question nuai value where neither the value of the lands, tenements or exceeds 20;. hereditaments in dispute, nor the rent payable in ^a.vi,%7.\t. respect thereof, shall exceed the sum of twenty pounds by the year, or in case of an easement or licence where neither the value nor reserved rent of the lands, tenements or hereditaments in respect of which the easement or hcence is claimed, or on, through, over or under which such easement or licence is claimed shall exceed the sum of twenty pounds by the year ; provided that the defendant in any such action of ejectment, or his landlord, Defendant may within one month from the day of service of S remwe^ the writ apply to a judge at chambers for a sum- ^"erio" mons to the plaintiff to show cause why such court, action should not be tried in one of the superior courts, on the ground that the title to lands or hereditaments of greater annual value than twenty where title pounds would be affected by the decision in such ^ ^^f^ *"■ action; and on the hearing of such summons the annual judge, if satisfied that the title to other lands voived. " would be so affected, may order such action to be tried in one of the superior courts, and thereupon all proceedings in the county court in such action shaU be discontinued." (30 & 31 Yict. c. 142, s. 12.) It will be noticed that the proviso to the above Digitized by Microsoft® 330 LAW OF LANDLORD AND TENANT. section is somewhat strangely confined to actions of ejectment. The title In Order to oust the jurisdiction of the court ZTdMe in the title set up must not he a mere suggestion or dispute. assertion of right. There must be a bo7id fide claim that has a legal foundation, and not one advanced simply to take the case out of the cogni- zance of the county court. [Lloyd v. Jones, 6 0. B. 81; Lilk^J v. narvey, 17 L. J., Q. B. 357; Emery v. Barnett, 27 L._ J._, C. P. 216.) But the judge cannot assume jurisdiction because the claim to title does not appear to him to be sup- ported by bona fide or sufficient evidence. {Marsh V. Dewes, 17 Jur. 558.) And where the question of title is actually raised before the court, and the judge continues to try the case, a prohibition will be granted. {lAUey v. Harvey, supra; Chew v. Holroyd, 22 L. J., Ex. 95.) Where it does not so appear upon the face of the proceedings, the judge should ascertain whether title is in question, and his decision may be revised on motion for a prohibition. {Thompson v. Ingham, 14 Q. B. 710; Seivell v. Jones, 19 L. J., Q. B. 372; Pear- son V. Glazehrook, L. R., 3 Ex. 27.) auestionsof As will have been noticed, the words of the Se??'' statute are " to any corporeal or incorporeal here- casesof ditameut ; " but questions of title may be raised in tGnns ox years or for the case of tcrms of years or for life. {Chew v. ^^' Holroyd, supra; Mountney v. Collier, 1 B. & B. 630;22_L. J., Q.B. 124.) 30 & 31 Vict. The jurisdiction conferred by the 12th section appifes'^botii of the act of 1867 {supra) does not apply merely to teffu*ht'to actions expressly brought to try a question of title, tryques- but also to cases where it comes in question andtoca'ses incidentally; and the provision, ousting the juris- Trisesind- diotiou whcro title is iu question, applies to pro- dentajiy; cecdinffs for the recovery of small tenements and tlie pro- ° •' Digitized by Microsoft® PROCBEBINGS IN THE COUNTY COURT. 331 {Pearson v. Glazebrook, L. E., 3 Ex. 27) under visoappHes 19 & 20 Yict. 0. 108, s. 50. (See post, Sect. 4, Sg^'uX" "Actions for the Eecovery of Small Tenements.") f losfJ^!' Having clearly ascertained that the case is one Actions are within the iurisdiction of the court, the claimant ^"""S;*, in an action for the recovery of land, like other g^'*J}?S.* '." plaintiffs in county courts, must commence his c. 96, a. 59. ' action by a plaint, which is a concise statement Nature of by the plaintiff of the names and residences of the ^ ^^ ' parties and the cause of action, made to and num- bered and recorded, by, the registrar of the court of the district wherein the property is situate, in a book called the " Plaint Book," specially kept for the purpose. (9 & 10 Yict. c. 95, s. 59; C. C. Orders, 1875, Ord. IV. r. 1.) As in the supreme court so in the county court, Jomder of action, except claims m respect 01 mesne profits, arrears of rent, or damages for breach of any contract under which the property or part thereof is held, may be joined with an ac- tion for the recovery of land, except by leave of the judge. (0. 0. Orders, 1875, Ord. YI. r. 1; and see ante, p. 283.) All persons in whom title is alleged must Parties, be joined as plaintiffs, and the person or persons alleged to be in possession or apparent possession of the premises must be defendants. (0. 0. Orders, 1875, Ord. Y. r. 10.) The claimant must Description also file with the registrar a full written description °^ s^P^^^'y- of the property, its annual value and rent (if any fixed or paid), with as many copies of such parti- culars as there are defendants. (0. C Orders, 1875, Ord. YII. r. 5.) The plaint will not be vitiated merely by misnomer of one or more of the parties, or inaccurate description of the pro- perty, if the person or place be described so as to be commonly known. (9 & 10 Yict. c. 95, s. 59.) Upon entry of the plaint, a poundage fee of Fees on Digitized by Microsoft® 332 LAW OF LANDLORD AND TENANT. entry of one shilling in the pound (estimated as upon a claim of 20/.), together with his own fee of one guinea (Treasury Ord., Oct. 1876, Sohed. (A), must he paid to the registrar, who, on receipt, will give the claimant a " plaint note." (0. C. Orders, 1875, Ord. YIII. r. 1.) _ Summons The plaint having been entered in the " Plaint Book," the registrar (0. C. Orders, 1875, Ord. II. r. 4) will then issue a summons directed to and calling upon the defendants to appear to the must bear plaint. The summons must be dated of the day of piaL™*^ on which the plaint was entered, which is the date of the commencement of the action (C. C. contain Orders, 1875, Ord. VIII. r. 2), and must con- partics, and tain the uamcs of all the parties, with a copy of description'^ the particulars of the property claimed annexed "ert \^°' (^" ^)' scaled with the seal of the court. This is nexcd. deemed part of the summons. Amendment Insufficient or incorrect descriptions or names desm^ums of parties may he amended at the instance of of parties, either party, by order of the court, on such terms as it shall think fit (C. 0. Orders, 1875, Where too Ord. XVII. rr. 6, 7); and if a greater number ™n°^Eiade of pcrsons havo been made parties than by law parties. required, the names of the persons improperly joined may likewise be struck out by order of the court, on such terms as it shall think fit Action not (rr. 9, 10); but no action shall be defeated by featcd^by reasou of the misjoinder of parties. (E. 12.) ™=Jo™^er In the County Court (Common Law) Eules issued under the act of 1867, it was provided by rule 230 (originally taken by 15 & 16 Vict. Want of c. 76, s. 175) that "want of reasonable certainty certato^^" ^ in the description of the property or any part of tfou'ofSe ^^ ^^ ^^7 summons or notice " should " not nullify property. it; but the judgc " might, "if he saw fit, order the description to be amended at the hearing, or an amended description to be delivered. Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 333 subject in either case to such terms as he might think fit." It would appear that no similar pro- vision was thought necessary in the Cons. 0. C. Orders and Rules, 1875 ; and care should be taken to describe the property with such suffi- cient accuracy as to avoid consequent difficulties. "Reasonable certaiaty" is, however, it is sub- mitted, all that is or can be required ; and by Ord. IX. r. 4, it will be seen that it is so, at all events in the notice given by a defendant desiring to limit his defence to part only of the property. The summons must be dehvered to the bailiff Thesum- at least forty, and served thirty-five, clear days b^^^rTCd^ before the return day (0. 0. Orders, 1875, Ord. *l£^it;| VIII. r. 7), such time being given to enable a before re- defendant or his landlord to apply to a judge of order to ' the High Court at chambers for a summons to Smiunder the plaintiff to show cause why the action should c^m^^a^i?' not be tried in the High Court, on the ground (Ante, v. that the title to lands or hereditaments of greater annual value than 2QI. would be affected by the decision in such action. If the judge should thereupon order the action to be tried in the superior court, the proceedings in the county court must then be discontinued. The defendant must lodge the order before the return day of the summons with the registrar, who must record it in the " Plaint Book " and transmit it, with a copy of the summons and particulars, to the " Masters " of the divisional court named in the order, giving notice at the same time that he has done so to the plaintiff. It has been doubted whether such an order ifSefeu- puts an end to the proceedings in the case alto- cessfuiTtiie gether, and thus compels a plaintiff to commence ^^™m- de novo in the divisional court, or whether the ^^^\ order being in the nature of a certiorari the plain- High Court. Digitized by Microsoft® 334 LAW OF LANDLORD AND TENANT. Days upon wliich sum- mons may not be served. Service of summons, how' effected. On an infant. On a luna- tic. On partners. tiff may not dispense with issuing a "writ in tlie High Court. But it is submitted that the pro- ceeding by the defendant is in fact an objection to the jurisdiction of the county court, and that the plaintiff must consequently begin de novo by issuing a writ in the High Court, the pleadings being the same as in other actions. (See ante^ p. 274.) The summons may be served on any day except Sunday, Christmas Day, Good Friday and the Saturday before Easter, days appointed by royal proclamation for public fast, humiliation or thanks- giving, or on days when the offices of the courts are closed by order of the Lord Chancellor. (C. C. Orders, 1875, Ord. XXXVII. r. 35.) The summons must, except in the cases here- after mentioned, be served upon the defendant personally, or upon some person apparently not less than sixteen years old, at the defendant's house or dwelling or at his place of busiaess (if he be the master or one of the masters thereof (C. C. Orders, 1875, Ord. VIII. r. 9), unless the baihfE ascertain that he has removed to another place withia the district, in which case the bailiff must serve the summons there. (75.) When the de- fendant is an infant, service on his father or guardian, or if none, upon the person with whom he resides or under whose care he is, will, unless the judge or registrar otherwise orders, be good service ; but the judge or registrar may order that service on the iaf ant shall be deemed good service. (C. C. Orderg, 1875, Ord. VIII. r. 10.) Where the defendant is a lunatic, service on his committee, if he has one, or if not, then on the person with whom he resides or under whose care he is, will, unless the court otherwise orders, be good. (C. C. Orders, 1875, Ord. VIII. r. 11.) Any one or more partners sued in the firm's name may be Digitized by IVIicrosoft® PROCEEDINGS IN THE COUNTY COUKT. 335 served, as may any person at the firm's prin- cipal place of business apparently at the time of service having the control or management of the partnership business there. {Ih. r. 12.) If de- on sailors. fendant be Kving or serving on board ship, service may be made on the person apparently in charge of the vessel at the time of service. {lb. r. 13.) If the defendant be residing or quartered in bar- On soldiers, racks, serving as a soldier or marine, the summons may be served at the barracks upon the adjutant of the corps, or on any officer or Serjeant of the company or troop to vs'hich such soldier or marine belongs. {lb. r. 14.) If defendant be a prisoner Prisoners. in gaol, service may be effected there on the governor or other person in charge. {lb. r. 15.) If the defendant be working in a mine or other Miners, &o. works underground, service may be effected at the mine or works on the engine-man, banks-man or other person ia charge of the mine or works. {lb. r. 16.) If the defendant be employed or where ae- \ 11. . ^ 1 ,. ,1 -11. 1 • fendant em- dwelling m a lunatic or other pubnc asylum or m pioyedina any common gaol or house of correction, service ^j^^or may be effected on the gate-keeper or lodge- prison. keeper thereof. {lb. r. 17.) Service may be corpora- effected on railway companies or other corpora- *'°°^' tions by delivering the summons to the secretary, station master or clerk at any station or office of defendants within the district of the court {ib. r. 18) ; and where provision is made by any statute for service of summons upon any corpora- tion, &c., service may be effected in manner so provided. {Ib. r. 23.) In cases of vacant possession {ante, p. 293), or if in cases of the defendant cannot be found, and his place of ISn.'^"^ abode be unknown or admission thereto cannot be obtained, posting a copy of the summons upon the door of the dwelling-house or other conspicuous part of the property, is good service upon the de- Digitized by Microsoft® 336 LAW OF LANBLOKD ANT) TENANT. ■Where violence ie threatened. Notice of doubtful service to te given. When de- fendant is out of England. Endorse- ment of service. fendant. (C. 0. Orders, 1875, Ord. VIII. r. 20.) Where the bailiff is prevented by violence from personally serving such summons, it will be suffi- cient to leave it as near to the defendant as practicable. {lb. r. 21.) Where the answers given by the person to whom the summons is delivered, at the place mentioned therein as the residence or place of business of a defendant, render it doubtful whether the court will be satisfied that service has come to the knowledge of the defendant before the return day, the high bailiff must forthwith send notice to the plaintiff. (0. C. Orders, 1875, Ord. II. r. 23.) Where a defendant is out of England the judge, or in his absence the registrar, may upon an affi- davit of the fact, direct the service of the plaint and summons to be effected within such time and in such manner as he may think fit. (C. C. Orders, 1875, Ord. XXXYII. r. 42.) If service has been personal, the bailiff who served the summons must endorse on the copy delivered to him by the registrar {ante, p. 333) the fact of such service. If service has not been per- sonal, he must endorse on the copy the statement made by the person to whom the summons was delivered, or other circumstances from which it may be inferred that the service has come to the knowledge of the defendant. If the summons has not been served, the bailiff must give notice thereof to plaintiff (0. 0. Orders, 1875, Ord. II. r. 22), and endorse the fact and reason of non-service, and deliver it to the registrar, pursuant to rule 26 (post, p. 337) ; and all such copies must be produced hj the registrar or high bailiff as the judge may require. All these endorsements must be signed by the bailiff. (C. 0. Orders, 1875, Ord. II. r. 21.) Seven clear days before the court day, the high Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COUKT. 337 tailiff must deliver to the registrar a list of all ordiQary sumraonses on plaints, before judgment issued to him, returnable at such court, and must state therein the mode of service or the cause of non-service of each summons; and the high bailiff must, at the same time, unless the judge otherwise order, deliver to the registrar the copies of sum- monses served and the summonses themselves not served. (C. 0. Orders, 1875, Ord. II. r. 26.) If the defendant does not appear at the heariag, proof of the judge may, as is hereafter mentioned {post, p. ^^"^'=^- 351), try the cause on the part of the plaintiff only, upon proof of the service of the summons. This, whether of home or foreign service, is done by the bailiff, if present, or by the endorsement on the copy signed by the bailiff, showing the fact and mode of such service. WiLfully and corruptly endorsing any false statement is a misdemeanor in such bailiff. (9 & 10 Vict. c. 95, s. 62 ; 38 & 39 Vict. c. 50, s. 3.) All questions as to sufficiency of the service and the proof thereof are entirely matters for the de- termination of the county court judge, and the High Court will not iaterfere with Ms decision. (9 & 10 Vict. c. 95, s. 80; Zohrab v. Smith, 5 D. & L. 635; 17 L. J., Q. B. 174; Waters v. Handleij, 6 D. & L. 88 ; RoUnson v. Lenaghan, 17 L. J., Ex. 174.) Where the action is inconsistent with his im- Tenant de- mediate landlord's title, every tenant served with must give a summons in an action for the recovery of land, P^^'g,;"^^^ or to whose knowledge it shall come, must forth- landlord, with give notice to his iromediate landlord or be is&isvict. liable under the C. L. P. Act, 1852, s. 209 {ante, ''■''^■ p. 296) , to forfeit to his landlord three years' rack rent (see Crocker v. Fothergill, 2 B. & Aid. 652) of the premises. Aiiy person not summoned as a defendant may, Anypereon E.&L. , Z not named Digitized by Microsoft® 338 LAW OF LANDLOED AND TENANT. as a defen- dant may, by leave, appear and defend. Further particulars. Limitation of defence. Discdntinu- ance of action. by leave of the registrar, appear and defend on filing an afiidavit (with a copy for each plaintiff and defendant), twelve clear days before the return day, that he is in possession, by himself or tenant, of the property or part thereof therein described ; whereupon the registrar must enter the name, &c. of such person in the " Plaint Book" as an addi- tional defendant, and send a notice, with a copy of the affidavit annexed, of such entry to the plaia- tifis and original defendants ten clear days before the return day. (0. C. Orders, 1875, Ord. IX. If the particulars of claim are deemed insuf- ficient, the defendant may, within three days of being served with the summons, notify to the plaintifE that he requires further particulars, and the plaintiff must then, within two clear days, file full particulars of his claim, and send a copy to the defendant. (0. 0. Orders, 1875, Ord. YII. r. 8,) Where a defendant desires to limit his defence to a part only of the property sought to be re- covered, he may give notice in writing, signed by himself or his solicitor, to the registrar, twelve clear days before the return day, describing the part with reasonable certainty, whereupon the registrar shall, ten clear days before the return day, send the same by post to the plaintiff or plaintiffs. (0. C. Orders, 1875, Ord. IX. r. 4; see ante, p. 332.) Where a plaintiff desires to discontinue the action agaiast all or any of the defendants, he must give notice in writing to the registrar, and to the party or parties as to whom the plaintiff desires to discontinue the action; and after the receipt of such notice, the party may apply for an order against the plaintiff for the costs incurred before the receipt of the notice, and of attending Digitized by Microsoft® PEOCEEDINGS IN THE COUNTY COUllT. 339 the court to obtain the order. (0. C. Orders, 1875, Ord. XII. r. 1 a.) Any defendant may, at any time before the confession return day, confess the action as to the whole or dant. any part of the lands by signing, in the presence of the registrar or one of his clerks, or a solicitor of the Supreme Court, and attested by the person in whose presence it is signed, an admission of the title of the plaintiii to the lands or to the said part thereof, and of his right to the possession thereof ; and the registrar shall upon the receipt of such admission forthwith give notice thereof by post to the plaintiff, and the judge may on the return day, upon proof of the signature of the defendant or defendants to such admission by affidavit or otherwise, in case the same is not attested by the registrar or clerk, and without any further proof of the plaintiff's title (if no defendant other than the defendant signing such admission defends for the said lands or the said part thereof), give judg- ment for the plaintiif for the recovery of possession and for costs; provided that if the plaintiff receive notice of such admission before the return day, he shall not be entitled as against the defendant or defendants signing to any costs incurred subse- quently to the receipt of such notice, except the costs of attending the court on the return day, unless the judge shall otherwise order ; provided also, that where the admission is not signed by all the defendants defending for the said lands or the said part thereof, the trial shall proceed against these [sic) non-admitting defendants, as if no admission had been signed. (0. 0. Orders, 1875, Ord. XXXYII. r. 24.) "Where a sole plaintiff or defendant or one or Atatement. more of several plaintiffs or defendants die before judgment, the action will not abate if the cause of z 2 Digitized by Microsoft® 340 LAW OF LANDLORD AND TENANT. action survive or continue. (C. C. Orders, 1875, Ord. XV. r. 4.) Where one or more of several plaintiffs or de- fendants die after judgment, proceedings on it may be taken by or against the survivor or survivors without leave of the court. (C. C. Orders, 1875, Ord. XY. r. 6.) Provisions The County Court (Common Law) Eules, issued ance under imder the act of 1867, provided for the continu- Aotof 1867. g^jjpg Qf ^^ action of ejectment on death of any of the parties by rules 241 — 249 inclusive, which have now been superseded by the Consolidated County Court Orders and Eules, 1875. These special provisions are not again prescribed in the later rules, the single rule said to be substituted for the nine superseded rules being rule 11 of Ord. XYI. ("List of Eules and Orders in force prior to the 2nd November, 1875, with a reference to the new rules respectively substituted for each." — Orders, 1876), which has reference to the general jurisdiction of the court on the trial of the action ! In the Schedule, however, the forms of orders for the substitution of parties and continuation of the action, in use under the old are retained under the new rules, and it is therefore here thought ad- visable to state the provisions under the act of 1867. Where party Where any party to an action of ejectment Sta^^dTy, dies before the return day, the surviving party or p'Sti2°tl parties thereto shaU appear in court on the return appear. day. (Eule 241.) Where Where a sole plaintiff or one of several plain- blteefe?^^ tiffs in ejectment, claiming otherwise than as joint heS'o^^Sher tenants, dies before the return day, the heir or representa- other legal representative of such deceased plain- cmtSue. tiff, on the return day, may apply to the judge upon filing an af&davit of the death of the de- Digitized by Microsoft® PEOCEEDINGS IN THE COUNTY COURT, 341 ceased plaintiff and of Hs own heirship or other representative character, for leave to continue the action in his own name as plaintiff ; and the judge may make an order granting such leave upon such terms, as to adjournment and payment of costs, as he shall see fit ; and thereupon the entry of the plaint in the plaint book must be amended by sub- stituting for the name of the deceased plaintiff the name of the applicant as heir or other legal repre- sentative, as the case may be, of the deceased plaintiff. The substituted plaintiff cannot recover, unless he shall prove the title of the deceased plaintiff as stated in the summons, and also that he is heir or other legal representative of the de- ceased plaintiff ; but upon proof of such title and of his representative character as alleged, he is entitled to judgment for the recovery of possession and costs. If, however, the defendant does not appear on the return day, the cause will be ad- journed and a copy of the order will be sent by the registrar, by post or otherwise, to the defen- dant. (Eule242.) Where one of several plaintiffs dies before the Death of return day, and no application is made on the several return day by the legal representatives of the gete^t deceased plaintiff, the name of the deceased tumday. plaintiff will be struck out, and the action will proceed and be tried as between the surviving plaintiff and the defendant; and the surviving plaintiff wiU. have judgment for the recovery of the whole of the property mentioned in the ■ summons, if he proves himself entitled thereto ; or if not, then for the recovery of such part or share thereof as he proves himself entitled to, and for costs. (Rule 243.) Where judgment in ejectment is given for two ^^^^^'^^^^ or more plaintiffs, and one or more of such plain- piamtas tiffs dies after judgment and before execution is mentinf' Digitized by Microsoft® 342 LAW OT lANDLORD AND TENANT. before exe- cution. Deathi of sole plaintiff after judg- ment and before exe- cution. Death of sole defen- dant before return day. executed, tlie Biiiviving plaintifE or plaintiffs may apply to the registrar upon an affidavit stating the death of the deceased plaintiff or plaintiffs, to make an entry in the minute book of the death of such plaintiff, and strike out therefrom the name of the deceased plaintiff or plaintiffs, and to issue execution for the recovery of the posses- sion of the entirety of the property and the costs ; but this does not affect the right of the legal re- presentatives of the deceased plaintiff or plaintiffs, or the liability of the surviving plaintiff or plain- tiffs to such legal representatives ; and the entry of possession of such surviving plaintiff or plain- tiffs under such execution is considered as an entry of possession on behalf of such legal representatives in respect of the property to which they are en- titled as such representatives. (Rule 244.) Where a sole plaintiff or all the plaintiffs in ejectment shall die after judgment but before exe- cution executed, any person or persons entitled upon the death of the plaintiff or plaintiffs to the property recovered, may issue execution, by leave of the registrar, upon proof of title to the benefit of the judgment upon substitution of their name or names as plaintiffs, together with a statement of his or their derivative title, for that of the original plaintiff or plaintiffs. The registrar must give notice of the substitution to the defendant or defendants by post, and execution shall not issue upon the judgment until after six clear days from the posting of the notice. (Rules 245, 201.) Where a sole defendant or all the defendants in an action of ejectment die before the return day, any person or persons claiming to be entitled to the property on the death of the defendant or defendants, may apply at the hearing to the judge, upon fihng an affidavit stating such death and the grounds upon which he claims the property, for Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 343 leave to defend in the place of tlie deceased defen- dant or defendants, and the judge may make an order granting such leave upon such terms as to adjournment and payment of costs as he may see fit; and thereupon the entry of the plaint in the plaint hook will he amended hy suhstituting the name of the applicant for that of the deceased defendant, and the action will proceed as if the applicant had originally been defendant. (Rule 247.) If no such application is made, the action may proceed and he tried as in the case of the non- appearance of a defendant ; and the plaintiff, upon proof of the service of the summons and of his title to the property, is entitled to judg- ment. If no such application is made, any person claiming to he entitled to the property upon the death of the defendant or defendants, may apply for a new trial upon filing an affidavit stating the death of the defendant, the grounds upon which he claims the property, and that he had no notice or knowledge of the summons before the return day thereof ; and if the judge orders a new trial, the name of the applicant must he substituted for that of the deceased defendant in the miaute hook and summons, and the action will proceed as if the applicant had originally been defendant; and if the judge refuses a new trial he may order the applicant to pay the costs of the application. The above provisions in rule 247 are to apply Death of in the case of the death before the return day in tem°ii de- ejectment of one of several defendants who defends b™o^°*e. separately, whether any other defendant defends tumday. for the same property or not. (Rule 249.) Where a sole defendant or all the defendants Death of de- in ejectment die after judgment, the plaintiff Sto'jJ^dg- nevertheless is entitled to proceed by execution "«"*• Digitized by Microsoft® 344 tAW OF LANDLORD AND TENANT. for the recovery of possession, and to proceed by summons in the nature of a scire facias for the recovery of the costs against the legal personal representatives of the deceased defendant or defen- dants. (Eule 248 ; and see Eule 202.) Death of Where, before or after the return day, one or of seTeSr^ more of several defendants in ejectment who defend before or*^ jointly, die, the name of the deceased defendant after the re- will, upon application of either party, and upon ^^ ^^' proof of the death, be struck out, and the action vi^ill proceed against the surviving defendant or defendants. (Rule 246.) Before the trial both parties shoidd of course take steps to ascertain and adduce the necessary evidence in support of their respective cases. To do this it often becomes of the greatest importance for the one party to discover and inspect documents in the custody of the other, with a view either to their production at the trial, or to the administering of interrogatories upon matters relating to the action, and also to subpoena those persons as wit- nesses who can either give evidence or produce documents in support of his case. These results may be attained. By an Order in Council of the 18th Nov. 1867, in pursuance of a power contained in the C. L. P. Act, 1854 (17 & 18 Vict. c. 125), those sections of that act relating to inspection and discovery of documents and to interrogatories (ss. 50 — 54) were, amongst others, extended and applied to the county courts. j>roauction Where in any action any party desires the pro- meite"' duction of any document relating to the matter in question in such action, he may make an affidavit that he has reason to believe that it is in the pos- session or power of one of the parties, and the registrar shall, upon delivery to him of the affidavit and a copy thereof, file the affidavit and make an Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 345 order that the party against whora the document is made shall answer on affidavit, statiag what documents he has in his possession or power relat- ing to the matters in dispute, or what he knows as to their custody ; and whether he ohjects, and, if so, on what grounds, to the production of those in his possession or power. The order must state the time for answering, and be served by the bailiff or a solicitor or by post. (C. C. Orders, 1875, Ord. XIII. r. 1.) The party against whom the order is made must Answer to answer on affidavit in accordance vdth the terms of produce, the order, and send the affidavit and a copy vsdthin the time named to the registrar, who is to file it and transmit a copy to the other side. (0. C. Orders, 1875, Ord. XIII. r. 2.) If, after the answer on affidavit is filed, the Purtiier IT'' T j_' ' i?i_i 1 order after party desmng production requires a lurtner order answer re- thereon, he is to apply to the registrar, who, if °^'^^'^' there be no matter of fact or law in dispute, will make an order in writing in accordance with the facts ; but if there be matter of fact or law in dis- pute, the registrar must transmit both affidavits to the judge, who wiU appoint a time and place for hearing the application, and make such order thereon as shall be just. (0. 0. Orders, 1875, Ord. XIII. r. 3.) An. order for production of documents must order must state when and to whom they are to be produced, Indto ™ and it may order the same to be deposited with a^oumeit the registrar for production at the hearing, or shaube that he may make a copy thereof for any party. (C. C. Orders, 1875, Ord. XIII. r. 4.) As discovery is really only preliminary to obtaining inspection of the documents discovered, before an order is made, it should be shown that there is a reasonable ground to suppose that inspection will follow. It seems that discovery and inspection will Digitized by Microsoft® 346 LAW OF LANDLORD AND TENANT. Inspection of docu- ments. Interroga- tories. fee allowed at any time before trial. (See 20 Sol. Joum. 219.) "Where either party is desirous of inspecting any document wliich he is entitled to inspect relating to the matter ia question in such action, and which is in the possession or control of the other party, he may, five clear days tefore the hearing, give notice to the other party that he or his solicitor desires to iaspect the same, descrihiug it, at any place to be appointed hy the other party : if the holder neglect or refuse to appoiat such place or to allow such inspection within three days after receiving such notice, the judge may, ia his dis- cretion on the day of trial, adjourn the action and make such order as to costs as he shall think fit. (0. 0. Orders, 1875, Ord. XIII. r. 5.) The words "relating to the action" do not mean simply the issue raised. {Pape v. Lister, 40 L. J., Q. B. 87. As to the nature of documents of which inspection wUl be permitted, see Mattock v. Heath, 20 Sol. Journ. 54 ; also Woolley v. North London Rail. Co., 38 L. J., C. P. 317; MahonyY. National, Sfc. Fund, L. E., 6 0. P. 252 ; Cossey v. London, Brighton, S^c. Rail. Co., L. E., 5 C. P. 146.) Either party may further apply to the registrar for leave to interrogate the opposite party. On making apphcation he must file an affidavit made by himself only, or by himself and his solicitor or agent, if any, or by leave of the registrar by his solicitor or agent only, stating that deponent believes that the party proposing to iaterrogate will derive material benefit in the action from the discovery, and that there is good cause of action or defence upon the merits. The registrar will thereupon order that the applicant may, within a time named, deliver to the opposite party iuterro- gatories in writing, and in the order require the party interrogated to answer by affidavit within Digitized by Microsoft® PKOCEEDINGS IN THE COUNTY COURT. 347 such time to he appointed by the registrar, as shall enable the answers to be used at the trial. (0. C. Orders, 1875, Ord. XIII. r. 6.) If the party served with the order object to objection to answer he must file an affidavit stating his ries.™^''"' grounds for objecting, and that he will be pre- pared to show cause to the court at the return day. If he objects to answer some only of the interrogatories, he may reply to the others in the same affidavit. (C. C. Orders, 1875, Ord. XIII. r. 7.) If at the return day he successfully shows successful cause, the judge may hear or adjom'n the case ° ^^° ™' as he thinks fit, and upon terms as to costs. If he does not successfully show cause, the judge unsuccess- may order the interrogatories to be then and tion! '^°" there answered viva voce in court, or may adjourn the action and make an order for them to be answered by such time and for the payment of such costs incurred through the delay as he may tHnk fit. {lb. r. 8.) When an oral examination of the party interro- gated and who has answered insufficiently (17 & 18 Vict. c. 125, s. 53) is directed by the judge to be taken before the registrar, the answers given must be transcribed by the registrar or his clerk, read over to and signed by the witness, and filed by the registrar as the deposition of the witness. (0. C. Orders, 1875, Ord. XIV. r. 7.) Dis- obedience to the order to attend and be examined is a contempt of court and punishable accordingly. (17 & 18 Yict. c. 125, ss. 61, 54.) As to when interrogatories may be admiuis- tered in an action for the recovery of land, and what questions have been held admissible, see ante, pp. 307 — 310. It must also be remembered that only under exceptional circumstances will the defendant be allowed to interrogate the claimant in this action Digitized by Microsoft® 348 LAW OF LANDLORD AND TENANT. Admission of docu- Notice to produce documents. as to the character in -which he claims or the pedi- gree upon ■which he relies. The case of FUtcroft Y. Fletcher (11 Ex. 643 ; 25 L. J., Ex. 94, ante, p. 309) turned upon the fact that the action was brought against a person who had been long in possession by a stranger of whose title the defen- dant was wholly ignorant; and in Wallen v. Forrest (41 L. J., Q. B. 96) the court refused to allow a tenant, withholding possession of de- mised premises at the expiration of the lease, to interrogate the plaintiff to show that his title had expired, and expressed some doubt as to the de- cision in FUtcroft y. Fletcher, supra. See also Stoate V. Beio, 32 L. J., C. P. 160; Pearson v. Turner, 33 L. J., C. P. 224 ; Bhjth v. L' Estrange, 3 F. & F. 154 ; Ingilbi/ v. Shafto, 33 Beav. 31 ; Finney y. Forwood, L. E., 1 Ex. 6 ; Derby Bank Y. Lumsden, L. E,., 5 G. P. 107. Where any party desires to adduce any docu- ment in evidence he may, not less than five clear days before the trial, give notice to any other party to the action who is competent to make admissions requiring him to inspect and admit the document. The expense of proof of it after- wards, whatever may be the result of the action, will have to be paid, imless he admits the docu- ment within three days, by the party who ought to have admitted it, unless the judge otherwise orders. No costs of proof of any document will be allowed unless notice to admit has been given, except in cases where, in the opiaion of the regis- trar, the failure to give notice has saved expense. (C. C. Orders, 1875, Ord. XIII, r. 9.) Either party may give oral or written notice to the other to produce at the trial any documents ia his custody or control. Though not absolutely necessary, it is safer to specify the documents separately, and in all cases the notice should point Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 349 out witli reasonable certainty what documents may be really called for. " All letters written by the plaintiff to the defendant relating to the matters in dispute" wOl be sufficient to include a particular letter not specified. Upon failure or refusal to produce, the notice to do so must be proved, and then secondary evidence of the contents of the documents called for may be given by copy, orally or otherwise. Summonses to compel the attendance of wit- witnesses, nesses, with or without a clause requiring the pro- duction of documents, may be obtained of the regis- trar (38 & 39 Yict. c. 50, s. 2), for service either at home or abroad, and, by leave of the judge or registrar, may be issued in blank and served by the party applying (within a reasonable time before the return day; C. C. Orders, 1875, Ord. 'KTV. r. 2) for the same or his solicitor, or by some person in the permanent and exclusive employment of the party or his solicitor, but only one name shall be inserted in such summons. (Ord. XrV. r. 1.) It must here be observed that by 9 & 10 Yict. c. 95, s. 85, any number of names might be inserted in one summons, but that section being now repealed by the act of 1875, it is now- uncertain whether more than one name may be inserted in summonses where service is to be by bailiff. Upon service of the summons a reasonable sum, according to the scale of allowance in force, should be tendered for expenses. Persons simimoned as Non-attena- witnesses who fail to attend without sufficient neSes. ^ cause, or to produce documents which they have been summoned to produce, and persons who, being in court, are required to give evidence but refuse to do so, may be fined any sum, not exceed- ing 10^., by the judge. Digitized by Microsoft® 350 LAW OF lAjS'dloed and tenant. Scale of The foUowinfi' is the scale of expenses allowed allowance to i . , *-' ■*■ ■vritnessea. to Witnesses : — s. d. £ s. d. Gentlemen, merchants, bankers and professional men, per diem, from 15 to 1 1 Tradesmen, auctioneers, ac- countants, clerks and yeo- men, per diem, from . . . 7 6 to 15 Artisans and journeymen, per diem, from 40 to 076 Labourers and the Kke, per diem, from 30 to 040 Travelling expenses, sum reasonably paid, but not more than sixpence per mile one way. If the witnesses attend in more than one cause, they will be entitled to a proportionate part in each cause only. Action may The actiou may at the instance of either party Retried by a ^^^ ^^-^^ ^^ ^ j^^y (Q. C. Orders, 1875, Ord. XYI. r. 3) of five (9 & 10 Yiot. c. 95, _s_. 73), upon a demand for one being made in writing to the registrar three clear days before trial. (Ord. XYI. r. 1.) In cases where no demand for a jury has been so made, but at the trial both parties desire one, the judge may adjourn the trial upon terms in order that the necessary steps may be taken for such trial to take place. (C. C. Orders, 1875, Ord. XYI. r. 2.) Proceedjnga The action for the recovery of land is tried in at trial. ^^ same manner as other actions in the county courts, the question being, generally speaking, whether the statement in the summons of the plaintiff's title to the property therein mentioned, is true or false, and the evidence adduced in support of the plaintiff's case must be the same as would Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 351 be adduced in the High Court ia a similar action. Upon the cause heing called on, if the plaintiff wiere does not appear, and the defendant does appear do™not apr but does not admit the claim, the court may allow p^™- the defendant the same costs as if the action had been tried, but no hearing fee shall be charged. (C. C. Orders, 1875, Ord. XTE. r. 5.) If the plaiatiff appears and the defendant does where ae- not appear, the plaintiff, on proof of. service of the do^s^t ap- summons {ante, p. 337), wiU. be entitled to judg- '^'^^■ ment for the recovery of possession. (9 & 10 Yict. c. 95, s. 80.) If both parties appear, upon payment by the where both plaintiff to .the registrar of the hearing fee of two p^.*^ ^^" shillings in the pound (19 & 20 Yict. c. 108, s. 78), the trial proceeds much in the same manner as in the Supreme Court. The judge, ia the absence of a jury, decides all questions of fact as weU as of law. (9 & 10 Vict. c. 95, s. 69.) The claimant or his advocate, if he employ one, states his case and adduces evidence in its support. The defendant or his advocate then, ia his turn, addresses the court and calls his witnesses; but although ia some courts he is allowed to sum up his evidence, the judges generally do not permit bim to make a second speech, the plaintiff beiag entitled to a general reply. If it appear at the hearing that the plaiatiff's where title existed as alleged ia the summons and at the tMehas ex- time of entry of the plaint, but that it espired ^"^'"^ before the return day, the plaintiff wiU be entitled to judgment according to the fact that he was so entitled, and for his costs, unless the court other- wise orders. (C. C. Orders, 1875, Ord. XVIII. r. 8.) Under the former practice, where aU parties to spedai case. Digitized by Microsoft® 352 LAW 0¥ LANDLORD AND TENANT. Judgment. Execution ■where judg- ment for plaintiff. Where judgment is for posses- sion and Where judgment is for defen- dant, with costs. Appeal. an action of ejectment agreed upon the facts, they might, by leave of the registrar, state a case for the opinion of the judge, who then heard and determined the action upon the facts stated in such case. (C. 0. Com. Law Eules, r. 235.) But no such provision is made under the new rules, although a form for the heading and conclusion of a special case is retained in the Appendix to the rules. (See Form 163.) When the hearing of the case is ended, the judge pronounces judgment in a summary way, or, if there be a jury, sums up to them and they return a verdict. Upon judgment for the plain- tiff, execution may issue upon the day, if any, named therein ; if no day be named, it may issue after the expiration of fourteen clear days from the day on which judgment was given. (Ord. XVIII. r. 9.) If the judgment be for recovery of possession and costs, there may be either one or separate warrants of execution for the recovery of possession and for costs at the election of the plaintiff. (Order XVIII. r. 10.) If judgment be for the defendants or any of them with costs, exe- cution may issue for the costs against the plaintiff upon the day, if any, named in the judgment ; if no day be named, it may issue after the expiration of fourteen clear days from the day on which judgment was given, unless the judge otherwise order. (0. 0. Orders, 1875, Ord. XVIII. r. 11.) In actions for the recovery of land, as in other actions, an appeal lies from the county court (30 & 31 Vict. c. 142, s. 13) to divisional courts of the High Court, consisting of such of the judges as may be from time to time assigned by arrangements made for that purpose by the judges of the High Court. (36 & 37 Vict. c. 66, s. 45.) The decision of such court is final, imless Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 353 special leave to appeal be given by the same tri- bunal. (36 & 37 Yict. c. 66, s. 45.) The appeal must be either by special case or by motion. (1.) Any party dissatisfied with the judgment, By special order or diection of the court in point of law, or '^^' upon the admission or rejection of evidence, may, before the rising of the court on the day upon which judgment is pronounced, deliver to the registrar a statement ia writing signed by him or his advocate containing the grounds of his dissatis- faction, and in the event of no such statement being delivered, the successful party may proceed upon the judgment, unless the judge otherwise order ; but the judge may direct proceedings to be taken on the judgment notwithstanding such state- ment has been delivered. The party dissatisfied may appeal on grounds other than those contaiaed in such statement, and although he shall not have delivered such statement (G. 0. Orders, 1875, Ord. XXIX. r. 1) ; but he must give notice of appeal Time and in writing signed by the appellant or his solicitor, notice of within ten days of the judgment or- direction "pp"^- complained of, exclusive of the day of trial, and forward such notice to the registrar and the suc- cessful party. (13 & 14 Yict. c. 61, s. 14 ; 0. C. Orders, 1875, Ord. XXIX. rr. 2, 3.) Where the judge reserves a point and afterwards decides against the party moving, such party stiU has a right of appeal dating from such decision. {Foster V. Green, 30 L. J., Ex. 263.) Where judgment is reserved, and notice thereof is subsequently sent to the parties for the purposes of appeal, the date of the judgment is the date of the notice, and not of the day for which the judgment is ordered to be entered up. [Waterton v. Baker, L. E,., 3 Q,. B. 176 ; Francis v. Bowdeswell, L. E., 9 0. P 430.) The notice should state the grounds of appeal, the sufficiency or otherwise of such state- E.&L. A A Digitized by Microsoft® 354 LAW OF LANDLORD AND TENANT. ment being matter, if questioned, for decision by the judge, with -wHch the High Court will not inter- fere. {Gannon v. Johnson, 21 L. J., Q.. B. 164; Umns V. Matthews, 26 L. J., Q. B. 166.) The respondent may waive his right to notice (Park Gate Co. t. Coates, L. E., 5' 0. P. 634; Ward V. Eaw, L. E., 16 Eq. 83) ; but imless he do so the appellant must give notice, or his appeal wiU be struck out. {Stone v. Bean, B. B. & B. 504 ; Notice not a Norris V. Carrington, 16 C. B., N. S. 10.) The s^^of exe- jjotice wiU not operate as a stay of execution or proceedings, unless the judge so orders ; but the registrar will detain the proceeds of any execution which may then be in, or may come into his hands pending such appeal, to abide the event, unless the judge otherwise orders. (Ord. XXIX. r. 4.) The appellant must, within the time specified for notice, give security for the costs of the appeal, and, if he be defendant, also security for the amount of the judgment, unless he has been ordered to pay the amount into court. (13 & 14 Vict. c. 61, s. 14.) Case to be The appellant must prepare the case for appeal, fudg™'*'^ *° and present it to the judge for signature at the court held next after the parties have gigreed upon the facts. (C. 0._ Orders, 1875, Ord. XXIX. r. 5.) Whilst the right of appeal must be promptly exercised, the appellant's right to have the case signed by the judge at a later court than that named in this rule, is not barred thereby, although the respondent may proceed upon his judgment, unless the judge otherwise order. {Hacking v. Lee, 2 E. & B. 906 ; 29 L. J., Q. B. 204 ; Purler V. Bturmey, 3 H. & N. 521 ; Williams v. Williams, 16 L. T., N. S. 581.) If the judge does not approve of the case, both parties must be sum- moned to attend him and be heard as to the form of the case, which will be finally settled and signed Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 355 by the judge and then sealed by the registrar. (Ord. XXIX. r. 5.) If the parties do not agree upon the form of the case, the appellant must lodge his draft case with the registrar, who will give notice to the parties who may appear before the judge on a day named. In that case also the judge wiU finally settle and sign the case. (Ord. XXIX. r. 6.) If the judge refuse to settle and sign a case either party may move the divisional court under 19 & 20 Vict. c. 108, s. 43, for a rule to compel him to do so, but the granting or re- fusing such a rule is discretionary, and it wlH be refused where the question is one of fact only. {Sharrock v. London 8f N. W. Mail. Co., L. R., 1 C. P. D. 70 ; 24 W. E. 346.) The case should separate fact and law, be Form of reasonably concise [Catoley v. Furnell, 20 L. J., '™'^' C. P. 197 ; Evans v. Mathias, 7 E. & B. 690), clear as to whether or not a question of law is desired to be decided {London Sf N. W. Hail. Co. V. Grace, 2 G. B., N. S. 555), and binds the parties, who cannot travel out of it. ( Watson v. Amhergate Rail. Co., 15 Jur. 448; Yorke v. Smith, 21 L. J., Q. B. 53.) As to what becomes of the appeal if the judge die before signing the case, see M'Allum V. Cookson, 28 L. J., 0. P. 1. One copy of the case must then be deposited with the registrar, and another sent by the appel- lant to the respondent within three clear days after it is signed and sealed, otherwise the respon- dent may proceed upon the order, unless the judge otherwise direct. (0. 0. Orders, 1875, Ord. XXIX. r. 7.) The appellant must also within the same time transmit the case and a copy under seal of the court to the proper oiiicer of the High Court, giviug notice to the successful party that he has done so, otherwise the latter may proceed on the judgment, and will be, on Digkzia Bj/ Microsoft® 356 LAW OF LANDLORD AND TENANT. application to the court, entitled to costs incurred in consequence of the appellant's proceedings ; or, if he think fit, may, within twenty-eight clear days from the signing and sealing, himself trans- mit it in like manner, and give the like notice to the appellant. {lb. r. 8.) The judgment of the court of appeal, or an office copy thereof, may be deposited by either party with the registrar, and thereupon filed and enforced as if made in the county court. {lb. r. 9.) By motion. Where any person aggrieved has (by leave of the judge or of right, see Turner v. G. W. JR. Co., L. E., 2 a B. D. 125 ; 46 L. J., Q. B. 226) a right of appeal, he may, within eight days after the ruling, order, direction or decision complained of, appeal (in the first place ex parte) by motion to the divisional court instead of by case. The provisions of the Judicature Act (Ord. LIII. rr. 2, 3), as to notice of motion, do not apply to these cases {Billon v. Lloyd, Ex. Div., Mich. Sittings, 1875), and no notice of appeal seems necessary. When the divisional court of appeal is not sitting (but then only. Brown v. Shaxo, L. E.., 1 Ex. D. 425), the motion may be made before a judge at chambers. At the trial below, the judge, on request, must take a note of any question of law, or of the facts in evidence in relation thereto, and of his decision thereon and of his decision of the cause, and, at the expense of any party to the cause requiring the same for purposes of appeal, must furnish a copy of such note signed by himself (his signature being verified by affidavit, Welsh v. Mercer, L. E., 8 Ex. 71), which must be used and received on such motion and at the hearing of such appeal. (38 & 39 Vict. c. 50, s. 6.) Notes compiled by the judge after the trial from evidence wholly on affidavits may be received by the Com-t of Appeal Digitized by Microsoft® PKOCEEDINGS IN THE COUNTY COURT. 357 from divisional courts, though no request to take notes were made at the trial. {Hill v. Perssi, 24 W. H. 275.) The court may grant a rule to show cause on such terms as it may think fit, retumahle in the same way as on the argument of rules generally. Unless cause be shown within a specified time the order made will he one revers- ing the judgment below. (Hecks v. JEccIes, 24 "W. E. 39.) No appeal from a county court is given on a question of fact. (Cousens v. London Deposit Bank, 45 L. J., 0. P. 673 ; L. E., 1 Ex. D. 404.) The pendency of an action of ejectment in the superior courts was formerly no answer to a plaint in a county court to recover possession of the same premises {Bissill v. Williamson, 7 H. & N. 391) ; but now by the Consolidated County Court Orders, 1875 (Ord. XYI. r. 10), if on the return day it appear that an action is pending in any other court of record for the same cause, the court may order the plaint to be struck out, unless the plaintiff imdertake to discontinue the action in such other court before a day to be named, to which the trial shall be adjourned, and unless before such adjourned trial such action shall have been discontiaued the plaint shall then be struck out. This rule is certainly most reasonable, but its validity as beiag vltra vires may as certaialy be questioned. Sect. 4. — Actions in County Courts for the Recovery of Small Tenements. In the last section we considered the proceed- ings in " The action for the recovery of land " in county courts under the provisions of the Act of 1867. (30 & 31 Yiot. c. 142, s. 11, ante, p. 327.) Digitized by Microsoft® 358 XiAW OF LANDLORD AND TENANT. Landlord must elect to proceed either under 30 & 31 Vict, c. 142, 8. 11, or under 19 & 20 Vict, c. 108, BS. 60, 52. Proceedings against tenant (A) holding over; or (B) for non- payment of rent. (A) Against tenant hold- ing over. 19 & 20 Vict, c. 108, s. 60. Landlord may recover possession, In now passing on to a consideration of the afition for the "recovery of small tenements" in county courts, under the provisions of the Act of 1856 (19 & 20 Viet. c. 108, ss. 50, 52), it must be remembered that the plaintiff must elect between these two modes of proceeding. He cannot pujsue both. (C. 0. Orders, 1875, Ord. XXXYII. r. 25 ; Williamson v. Bissill, 7 H. & N. 391 ; 31 L. J., Ex. 131.) The landlord who proposes, being guided by the annual value of his property, to commence his action in the county court should therefore carefully consider, where both forms of proceeding are equally open to him, which remedy he will elect to pursue as being the more speedy or generally advantageous under all the circumstances of his particular case. Where a tenant holds over after the legal determination of his tenancy, and also where the landlord has a legal right of re-entry and posses- sion on the ground that his rent is unpaid, pro- ceedings may in the case of small tenements be sometimes most advantageously commenced in the county court under the provisions of the Act of 1856. (19 & 20 Vict. c. 108, ss. 50, 52.) "When the term and interest of the tenant of any corporeal hereditament, where neither the value of the premises nor the rent payable in respect of them exceeds 50/. by the year, and on which no fine or premium has been paid, has expired or been determined by a legal notice to quit, and the tenant or any person holding or claiming by, through, or under him neglects or refuses to dehver up possession of the premises, the landlord may at Ins option enter a plaint in the county court of the district where the pre- mises lie for their recovery, either against the tenant or the person so neglecting or refusing, whereupon a summons will issue in the ordinary Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 359 way. (19 & 20 Vict. c. 108, s. 50.) The plain- andddm tiff may also, as against the tenant, add a claim Sem°*™* for rent or mesne profits or for both down to the vi°^^- day appointed for the hearing, or to any pre- ^c.m^2^' ceding day to he named in the plaiat, so that the aggregate amount does not exceed 50^. (19 & 20 Vict, c. 108, s. 51), hut not if the plaiat be agaiast the sub-tenant. {Campbell v. Loader, 3 H. & C. 520 ; 34 L. J., Ex. 50.) Where the title comes into question, and the Comthas yearly rent or value exceeds 20^., the court has no Son'^err jurisdiction. (30 & 31 Vict.c. 142, s. 12.) Thus, ^i\^^^ although the nudge may decide as to whether the tte yearly Tflltis or tenancy was determined either by effluxion of time rent of 20;. or by a legal notice to quit, and his decision qu'Son. thereon is conclusive [Fearon v. Norvall, 5 D. & L. 439), he cannot decide as to whether the claimant has or has not title as landlord {Kerkin v. Kerkin, 3 E. & B. 399 ; Pearson v. Glazehrook, 37 L. J., Ex. 15), if the limit of value or rent be exceeded. {Ante, p. 330.) It is therefore very necessary before entering the plaint to consider (1 ) is title in question, and (2) does the yearly rent or value exceed 20/. ? If these two questions can be answered in the affirmative, the court has no jurisdiction, and the case must be taken into the High Court, unless by the written consent of both parties, signed by them or their solicitors (19 & 20 Vict. c. 108, s. 25), jurisdiction is given to the county court to hear and determine the cause. But, without such consent, it is the duty of the judge to ascertain whether any real dispute or question between the parties, as to the right or title of the plaintiff or of the defendant to the tenements in question, legally may and actually does exist between the parties. {Lilley v. Harvey, 5 D. & L. 648; Fearon v. Norvall, ib. 439; Mar- Digitized by Microsoft® 360 LAW OF LANDLORD AND TENANT. wood T. Waters, 13 C. B. 820 ; Latham v. Spedding, 17 Q. B. 440; Lloyd v. Jones, 6 0. B. 81.) Cases where Thus, where a defendant set up as defence that kito^Ts!^ he had given up possession to a third party, who *'°°- made a bona fide claim, it was held that the judge ought not to have refused to hear the case on the ground that title came into question until he had ascertained and decided that the defendant gave up possession by compulsion ; because if he gave it up voluntarily, he would be estopped fiom setting up the third person's title as agaiast his landlord's, and the court would have jurisdiction. {Emery v. Barnett, 27 L. J., C. P. 216.) Title is in question where the tenant makes a lona fide claim of ownership or alleges title in a third person. {Mancood v. Waters, 13 C. B. 821 ; and see ante, p. 330.)' Ordinary re- In Order to maintain this action, the ordinary ianSord relation of landlord and tenant must exist between and tenant the parties, the term " landlord " being understood to mean the person entitled to the immediate re- version of the property, or, in the case of joint tenancy, coparcenary, or tenancy in common (see ante, pp. 22 — 24), any one of the persons entitled to such reversion. (9 & 10 Yict. c. 95, s. 142.) Thus a plaintiff mortgagee cannot recover posses- sion from a defendant, tenant of the mortgagor, unless he has consented to hold under the plain- tiff {Jones V. Oicen, 5 D. & L. 669); and it was held that the court had no jurisdiction where the action was against an occupier in possession under an agreement to purchase, one of the terms of which was that the rent should be deducted from the purchase-money, and it appeared that he had paid a sum which, together with a set-off, equalled the amount of the purchase-money {Banks v. Rebheck, 20 L. J., Q. B. 476), for in neither Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 361 instance does tlie ordinary relation of landlord and tenant exist. (See also Jones v. Thomas, 4 L. T., N. S. 210.) The plaintifE must therefore show generally that such a relationship did exist. He must prove : — (1.) The tenancy or holdina;. If by lease, the J^'J?°?^,.„ lease or a counterpart must be produced, or prooi jj , Proof of must be given that defendant has admitted its tenancy, terms. {Jlotvard v. Stnith, 3 Sc. N. E. 574.) A demise or tenancy from year to year may be proved by payment and receipt of yearly rent (Doe V. Sorn, 3 M. & W. 333; Bishop v. Hotoard, 2 B. & C. 100), even, as we have seen {ante, p. 6), where defendant has been let into possession under a lease void by the Statute of Frauds, or a mere agreement for a future lease. {Doe v. Bell, 5 T. E. 471; Doe v. Amey, 12 A. & E. 476.) (2.) That " neither the value of the premises (2.) Yearly \ / -L vsJ-iiG nor nor the rent payable in respect thereof" has ex- rent has ex- ceeded 5QI. by the year. This must be proved at '^^^'^ ^'" the trial, whether the defendant does or does not appear ; as must — (3.) The expiration or other determination of M^^'^J^'^" the tenancy, with the time or manner thereof, termination {Ante, Chap. VIII. p. 195.) _ _ °'*'=°^""''- (4.) That "no fine or premium" was paid for (*■) No fine , -J ^ -, ' -^ or premium tne lease. paid. (5.) That the defendant has neglected or re- (s.) Neg-iect fused and still neglects or refuses to deliver up ^v^u'ppos- possession. For the purpose of proving this, it is advisable to make a demand of possession, and, if possible, obtaiu a refusal in like manner as under the C. L. P. Act, 1852, s. 213. {Ante, p. 276.) But proof that the defendant retains possession after demand made is jjriina facie evidence that he refuses or at all events neglects to deliver up possession. (Cole, Eject. 656.) (6.) Where the defendant does not appear, (g.) service ^ ' -^ -^ of the siun- mons. Digitized by Microsoft® 362 LAW OF LANDLOKD AND TENANT. (7.) Plain- tifE's title. Judgment. service of the sununons must be proved. (As to mode of service, see ante, p. 334.) The judge's decision as to sufficiency of the service is conclu- sive. [Robinson v. Lenaghan, 2 Ex. 333.) (7.) Should the title of the landlord have ac- crued siace the lettiag of the premises, the plain- tiff must prove in addition to the above facts the right by which he claims possession, not that his title can come in issue, but in order that his character as landlord may appear. (Ante, p. 360.) His right may be evidenced by length of posses- sion {Doe V. Cooke, 7 Bing. 346), or title as heir or administrator, or by will or conveyance. After such proof has been given, unless the defendant show good cause to the contrary, as, for example, by proving that the plaintiff's evidence is insuificient upon some of the above material points, or by producing contrary evidence, so far as he is not estopped from so doing hj the relationship of landlord and tenant, the judge may order that possession be given by the defen- dant to the plaiatifE either forthwith or on or before such day as the judge shall think fit to name, but such order need not be drawn up or served. (19 & 20 Yict. c. 108, s. 56.) If the order be not obeyed, the registrar, whether service of the order can be proved or not, must, at the Warrant for instance of the plaintiff, issue a warrant autho- liziag and requiring the high bailiff to give possession of the premises to the plaintiff, such warrant to bear date the day next after the last day named by the judge in his order for posses- sion to be given and to remain in force for three months from such date. {lb.) Armed with this warrant the bailiff is justified ia enteriug on the premises between 9 a.m. and 4 p.m. with such assistants as he may deem necessary, and giving possession to the plaintiff accordingly. {lb. s. 55.) Order for possession. Digitized by Microsoft® PROCEEBINGS IN THE COUNTY COURT. 363 An order for the giving up of possession of premises under this section is not analogous to a judgment in ejectment or conclusive evidence of title in a subsequent action for mesne profits. Where, therefore, a landlord, having given his tenant and sub-tenant a week's notice to quit, entered a plaint against them ia the county court, and the judge ordered that possession should he delivered up on a day named, which was done, and the landlord afterwards sued the sub-tenant in a superior court for mesne profits, it was held that the order of the county court judge was not conclusive as to the plaintiff's right to possession, but that it was competent for the sub-tenant to prove that the term of the tenant was a quarterly holding and had not been determined by a proper notice to quit ; it was also held that the order did not entitle the landlord to maintain an action of trespass for mesne profits against the sub-tenant {Camphell v. Loader, 8 H. & C. 620; 34 L. J., Ex. 50; 13 W. E. 348), section 61 only giving a right to mesne profits as against the tenant and not against any other person in possession. The warrant of possession can neither be issued nor executed when the lands are situated without the jurisdiction of the court, although both parties reside within it. {Ellis v. Feachey, 6 D. & L. 676.) The order of possession does not affect the rights of third persons ; hence a person whose rights are injuriously affected may maiatain tres- pass agaiast the person obtaining the warrant and on whose behalf it is executed. {Modson v. Wallter, L. E., 7 Ex. 55; 41 L. J., Ex. 51.) _ Thus far we have been considering cases within (B) Pro- section 60 (19 & 20 Vict. 0. 108), where the '^aini^ tenancy has expired or been determined by legal no'S-pay-'^ notice to quit; but, as before mentioned {ante, ™"'°' p. 358), the landlord may also under section 62 Digitized by Microsoft® 364 LAW OF LANDLORD AND TENANT. 19 & 20 Vict. 0. 108, s. 52. No formal demand of re-entry necessary. of the same act commence proceedings iq, the county court where he is unable to obtain pay- ment of his rent, in cases where he has by law a right to re-enter and take possession on non- payment thereof; provided, of course, that neither the value of the premises nor the rent exceeds 50/. per annum. In such a case no formal demand of re-entry is necessary, as the statute expressly pro- vides that the service of the summons shall stand in lieu of a demand and re-entry. If, however, the tenant, five clear days before the return day of the summons, pays into court all the rent in arrear and costs, the action ceases. If he neither makes such payment nor at the time named in the summons show good cause why the premises should not be recovered, then, on proof — (1) Of the yearly value and rent of the pre- mises ; (2) That one half-year's rent was in arrear before the plaint was entered, and that no sufficient distress (see ante, pp. 272, 273) was then to be found on the premises to countervail such arrears; (3) Of the landlord's right to re-enter — this can only be by virtue of some condition or proviso contained in the lease or agree- ment, whether by deed, in writing, or by oral agreement, express or implied; (4) That the rent is still in arrear; (5) Of the title of the plaintiff if such title has accrued since the letting of the premises; and (6) Service of the summons in cases where defendant does not appear; the judge may order that possession of the pre- mises mentioned in the plaint be given by the defendant to the plaintiff on or before such day, not being less than four weeks from the trial, as Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 365 the judge may name, unless within that period all the rent ia arrear and the costs he paid into court. If the order he not oheyed and the rent and costs he not so paid, the order may he enforced in maimer already mentioned {ante, p. 362), the proceedings under hoth sections heing similar in that respect. In proceedings for non-payment of rent, however, the plaintiff having ohtaiaed pos- session will hold the premises discharged from the tenancy; and the defendant and all persons claiming hy, through, or under him, will, so long as the order remains unreversed, he harrred from all relief. Any fine or premium paid for the lease does not deprive the court of jurisdiction under s. 52, as it does under s. 50. In these eases, as in actions of ejectment, sub-tenant whether under the Judicature Acts in the s^moS High Court, or under the Act of 1867 (30 & 31 ^^JeTius Yict. c. 142, s. 11, ante, p. 327), in the county immedmte , , ' , ' ' J^. ' ' , •' landlord. court, when the summons is served on or comes to the knowledge of any sub-tenant of the plain- tiff's immediate tenant, such suh-tenant being an occupier of the whole or a part of the premises sought to be recovered, must forthwith {i. e., with aR reasonable celerity, ante, p. 296) give notice of it to his immediate landlord ; and such landlord on receipt of the notice, if not origiaaUy a defendant, may be added or substituted as a defendant to defend the possession of the premises in question. If the sub-tenant omit to give such notice to his immediate landlord he is liable to the penalty of forfeiting three years' rack rent of the premises held by hirn to his landlord. The action for this penalty must be brought in the county conrt whence the summons issued (19 & 20 Vict. c. 108, s. 63), although it may exceed in amount the general statutory limit within which the county courts have jurisdiction. Digitized by Microsoft® 366 LAW OF LANDLORD AND TENANT. Protection of officers. Landlord with lawful title not a trespasser. Appeal. No action or prosecution may be brought against any officer of the court for issuing or executing any warrant or affixing any summons, on the ground that the person suing out the same had not lawful right to the possession of the pre- mises. (9 & 10 Vict. c. 95, s. 124.) The person, however, who sues out the warrant is not so pro- tected, {a. s. 125.) Where the landlord at the time of applying for the warrant had lawful right to possession of the premises, neither he nor his agent may be deemed a trespasser by reason merely of any irregularity or informality in the mode of proceeding ; but the party aggrieved may bring an action on the case, in which he must allege special damage, and may recover full compensation with costs of suit. If the special damage be not proved, the defendant will be entitled to a verdict; if proved, but the jury assess it under five shiUings, the plaintiff can recover no more costs than damages, unless the judge before whom the trial takes place, certifies that in his opinion full costs ought to be allowed. (9 & 10 Yict. c. 95, s. 125.) In all actions where the yearly rent or value of the premises exceeds 20/. an appeal lies as of right; where the rent or value is below that amount, then an appeal lies by leave of the judge in manner already described. (19 & 20 Vict. e. 108, s. 68 ; 30 & 31 Vict. c. 142, s. 13, ante, p. 352.) The "Treasury Order regulating Court Fees, 1875," authorizes the following fees to be taken in cases of ejectment under the Act of 1867, and in actions for the recovery of small tene- ments, &c. : — For every plaint, one shilling in the poimd. Where the claim or demand exceeds forty shil- lings, and an ordinary summons is to be Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 367 served by bailiff, an additional fee of one shilling. Where in any case the number of defendants shall exceed three, an additional fee of one shilling for each defendant above three. For every hearing, two shillings in the pound. An additional hearing fee shall be taken for every new trial. No fee shall be pay- able for hearing any application for a new trial, or to set aside proceedings, &c. In aR cases where the defendant shall either personally, or by his solicitor or agent, admit the claim, one half of the fee paid by the plaiatiff for the hearing of the plaiat shall be returned to the plaintiff by the registrar of the court, although the court may have been required to de- cide upon the terms and conditions upon which the claim is to be paid. For every jury, five shillings shall be paid to the registrar by the party demanding the jury, on such demand, for the use of the jurors. For issuing every warrant against the goods, eighteen pence iu the pound on the amount for which such warrant shall issue. For issuing every warrant to deliver possession of tenements, eighteen pence in the pound. In plaints under sects. 11 & 12 of "The County Courts Act, 1867," poundage shall be estimated as upon a claim for a sum of twenty pounds. In plaints for the recovery of tenements, when the term has expired or been determined by notice, aU poundage, except as aforesaid, shall be estimated on the amount of the weekly, monthly or yearly rent of the tenement, as such tenement shall have Digitized by Microsoft® 368 LAW OF LANDLORD AND TENANT. been let by the week or by the month or for any longer period ; and if no rent shall have been re- served, then on the amount of the half-yearly value of the tenement to be fixed by the registrar. Where a claim for rent or mesne profits, or both, is added to a plaint for the recovery of a tenement, an additional poundage shall be taken on the amount or amounts so claimed ; but where thereby the total amount on which poundage would be taken shall exceed twenty pounds, the poimdage shall be estimated on twenty pounds only. In plaints for the recovery of tenements for non-payment of rent, aU poundage, except as aforesaid, shaU. be estimated on the amount of the half-yearly rent of the tenement. In the above cases where the poundage would, but for this direction, be estimated on an amount exceeding twenty pounds, it shaU. be estimated at twenty pounds only. In every case where the poundage cannot be estimated by any rule in this schediie, it shall be estimated on twenty poimds. All fractions of a pound, for the purpose of cal- culating poundage, shall be treated as an entire pound. Where a counter or other claim is made under Order X. of the County Court Eules, 1875, the same fees shall be taken as upon the entry and hearing of a plaint. £ s. d. For a warrant to replevy . . .026 For a replevin bond, where the alleged rent or damage does not exceed 201. 10 6 For a replevin bond, where the alleged rent or damage exceeds 201. .110 For notice to distrainor . . .026 Digitized by Microsoft® PROCEEDINGS IN THE COUNTY COURT. 369 For every subpoena to be served in a £ s. d. home district, if served within two miles of court house . . .010 For every mile beyond two . .006 But the total fee to be taken is in no case to exceed . .030 For every subpoena to be served in a foreign district . . . .030 For every sitting under the Agricul- tural Holdings (England) Act, 1875 {ante, pp. 240, 241) . .10 Registrars' Fees. On entry of plaint under sections 11 and 12 of the County Courts Act, 1867, to the registrar (awfe, p. 332). 110 where the plaiat has not been entered under section 12, and the judge shall certify that the court has exercised jurisdiction under that section, the above fee of £1 : Is. shall be paid. On every order for a new trial in actions commenced under sections 11 and 12 of County Courts Act, 1867 . 10 6 Taxing costs under either of the said sections 11 and 12, or under sec- tion 23 of the Agricultural Hold- ings (England) Act, 1875 _. _ . 10 6 For drawing up, sealing and issuing every order under Ord. XXXIV. r. 7. (Proceedings in appHcations for referee or umpire under sections 22, 23 of the Agricultural Hold- ings (England) Act, 1875) . .040 For every sitting under Ord. XIV. rr. 7 and 8 10 E. &L. B B Digitized by Microsoft® 370 LAAV OF LANDLORD AND TENANT. "Where the sitting is longer than one £ s. d. hour, for every additional hour or part of an hour . . . . 10 For every notice or summons under — Ord. XIII. r. 3 {ante, p. 345) . Ord. XVI. r. 12 (addition of absent I q 2 6 parties at heariag) . Ord. XXXIV. (Agricultural Hold ings (England) Act, 1875) For copies of every proceeding or docu- ment under Ord. XXXVII. r. 3, per folio 4 Filing affidavit on issue of duplicate plaint note 6 For every hond with sureties . .050 Sigh Bailiffs' Fees. For delivering the goods on completion of a replevin bond Together with Qd. a mile from the court house to the place where the goods are. 110 1 & 2 Viet. 0. T4. The "Act to facilitate the recovery of posses- sion of tene- ments after due detei^ mination of the te- nancy." Sect. 5. — Proceedings for the Recovery of Small Tenements before Justices of the Peace. In order " to facilitate the recovery of posses- sion of tenements after due determination of the tenancy, the statute 1 & 2 Vict. c. 74, provided in certain cases a summary mode of obtaining the possession of premises, by proceedings before jus- tices of the peace, which may, where apphcable, very frequently be found less expensive and more advantageous to landlords than the proceedings in county courts under 19 & 20 Vict. c. 108, ss. 60 — 52. {Ante, p. 357.) Digitized by Microsoft® PROCEEDINGS BEFORE JUSTICES OF THE PEACE. 371 When the term of the tenant of any property Prooeemnga held by him at will, or for any term not exceeding after'tei'"^ seven years at a rent (if any) not exceeding 20/. JJ^J^^'^*'^ a year, and upon which no fine has been reserved i &2Vict. or made payable, shall have ended or been deter- '• '*■ ^- ^■ mined by legal notice to quit or otherwise, and such tenant or the actual occupier neglect or re- fuse to quit and deliver up possession, the landlord or his agent may cause such tenant or occupier so refusing to be served with a written notice, signed by the landlord or his agent, of his intention to proceed to recover possession under this act ; and if the tenant or occupier do not appear at the time and place, and show to the satisfaction of the justices reasonable cause why possession should not be given, and still neglect or refuse to deliver up possession, the landlord or his agent may give proof of the holding and of the end or other de- termination of the tenancy with the time and manner thereof, and where the landlord's title has accrued siace the letting of the premises the right by which he claims possession ; and upon proof of service of the notice, and of the neglect or refusal of the tenant or occupier, the justices acting for the place within which the premises, or any part thereof, be situate, in petty sessions assembled, or any two of them, may issue a warrant to the constables and peace officers of such place commanding them, withia not less than twenty- one nor more than thirty clear days from date of warrant, to enter, by force if needful, and give possession to the landlord or his agent. Such entry not to be made on Sunday, Good Friday, Christmas Day, or at any time except between 9 a.m. and 4 p.m. Nothing in this act is to pro- tect any person obtaining the warrant from an action if he has no lawful right to the possession, or to affect the rights of an outgoing tenant by B B 2 Digitized by Microsoft® 372 LAW OF LANDLORD AND TENANT. the custom of the country or otherwise. (1 & 2 Vict. c. 74,_ s. 1.) Notice of The notice to be given pursuant to the above praTOea b^ section must , be in the form prescribed, which is «.»V'™,; as follows :— tices, pur- suant to this ,, T / t t il ±7 act. " i , owner [or agent to the owner, as the case may he) do hereby give you notice that unless peaceable possession of the tenement {shortly de- scribing it) situate , which was held of me (or of the said as the case may he) under a tenancy from year to year {or as the case may be) which expired {or was determined) by notice to quit from the said {or otherwise as the case may be) on the day of , and which tenement is now held over and detained from the said , be given to (the owner or agent) on or before the expiration of seven clear days from the service of this notice, I , shall on next, the day of , at of the clock on the same day at [a notice omiting to state the place at lohich the application will he made is bad, Delaney V. Fox, 1 a B., JSr. S. 166] apply to her Majesty's justices of the peace acting for the dis- trict of {being the district, division, or place in which the said tenement or any part thereof is situate) in petty sessions assembled to issue their warrant directing the constables of the said dis- trict to enter and take possession of the said tene- ment, and to eject any person therefrom. Dated this, &c. " Signed, " {Owner or agent.) " notice °^ Service of this notice may be personal or on some person at the premises. It must be read over and explained to the person served, or with whom the same is left. If the person holding Digitized by Microsoft® PROCEEDINGS BEFORE JUSTICES OF THE PEACE. 373 over oannot be found it may be posted up on some conspicuous part of the premises. (1 & 2 Vict. c. 74, s. 2.) When the person obtaining the warrant has not Any person lawful right to possession, the tenant may enter warrantf into a bond with two sureties, to be approved by wSiright the justices, to sue the person obtaining the war- s?,^"^^^ rant for trespass, and the warrant will then be to action for delayed. (1 & 2 Vict. c. 74, ss. 3 and 4.) *"''^'^- Actions shall not be brought against the jus- no action tices or constables for issuing or executiag such te™&c.'^" warrants, by reason that the person on whose application the same shall be granted had not lawful right to the possession of the premises. (1 & 2 Vict. c. 74, s. 5.) But it seems doubtful whether third persons who assist the constable in executing the warrant are similarly protected. {Darlington v. Pritchard, 4 M. & Gr. 783, 794 ; 12 L. J., 0. P. 34; and see Jones v. Chapman, 14 M. & W. 124.) An action of trespass will lie against the landlord for obtainiiig a warrant and turning the tenant out of possession, if it turn out that such landlord at the time had no right to the possession {Darlington v. Pritchard, supra) ; but the same protection is afforded to a landlord who has a lawful title at the time of applying for the warrant, against his being deemed a trespasser, as under 9 & 10 Vict. c. 95. s. 125 {atite, p. 366 ; l&2Vict. c. 74, s._6). In the construction of this act " premises " construc- signifies lands, houses or other corporeal heredita- °° ° ^' ments ; " person " comprehends a body politic, corporate, or collegiate, as well as an individual; words importing the singular number, where necessary, extend and apply to several persons or things, as well as to one ; words importing the masculine, where necessary, extend and apply to the feminine gender; the term "landlord" has the Digitized by Microsoft® 374 LAW OF LANDLORD AND TENANT. Requisites to successful prosecution of proceed- ings. Tlie demise must be at win or for a period not exceeding seven years. The rent must not exceed 20(. No fine must tave been re- Teim must have ended or been de- termined. same signification as under 9 & 10 Vict. c. 95, s. 142 {ante, p. 360) ; and " agent " means any person usually employed by the landlord to let the premises or collect the rents thereof, or specially authorized to act in the particular matter by writing under the hand of the landlord. (1 & 2 Yict. c. 74, s. 7.) In order, therefore, to enable a landlord to suc- cessfully maintain these proceedings before jus- tices, there must be a concurrence of the following circumstances : — ■ (1.) The premises must have been demised under a lease or agreement, express or implied, at will, or for any term not exceeding seven years. There is no such limit in the County Court Acts. The fact, but not the duration of the tenancy, may be proved by parol evidence, even where there is a vsritten agreement. {Ingram v. Knoivles, 20 L. J. 208.) (2.) The rent reserved must not have exceeded 20/. a year. In an action in the county court for the recovery of small tenements, as we have seen ' {ante, p. 358), neither the rent nor value thereof must exceed 50/. a year. (19 & 20 Vict. c. 108, s. 50.) (3.) No fine must have been reserved or made payable. There is a similar condition imposed in 19 & 20 Vict. c. 108, s. 50, though not in s. 52. {Ante, pp. 358, 363.) (4.) The term or tenancy must have ended or been duly determined by a legal notice to quit or othertoise. Where the landlord proceeds in. the county court under 19 & 20 Vict. e. 108, the term must in every case either have expired, been determined by legal notice to jjiiit, or for- feited for non-payment of rent (ss. 50 — 52); the words " or otherwise " not being found in that act. But in proceedings before justices, by virtiie Digitized by Microsoft® PROCEEDINGS BEFORE JUSTICES OP THE PEACE. 375 of those words, the tenancy may have been deter- mined by entry for a forfeiture other than non- payment of rent. As we have seen {ante, p. 4) a tenancy at will is determined by a mere demand of possession or by entry. The term not exceed- ing seven years here mentioned, means either a tenancy for a time certain, or a tenancy from year to year. As a tenancy for a time certain naturally expires by effluxion of time, there is in such a ease no necessity for notice to quit. But tenancies from year to year, whether express or implied, whether the rent be reserved yearly or otherwise, cannot be determined except by notice to quit given at least half a year pre- viously. {Ante, p. 4.) If the tenancy be from half year to half year, a half-year's notice to quit must be given; if from quarter to quarter, a quarter's notice ; if from month to month, a month's notice; and if from week to week, a week's notice, unless otherwise expressly stipulated between the parties. The notice must be correct as to the time of the expiration of the tenancy, and in order to avoid mistake, which is fatal, may be iu the following form: — " Sir, — I hereby {or as agent for Mr. A.B., your landlord, and on his behalf) give you notice to quit and deliver up possession of the {house, land, Sfc), situate at , in the county of , which you hold of me {or him) as tenant thereof, on the 25th day of December next, or at the expiration of the current year {or as the case may be) of your tenancy which shall expire next after the end of one half year {or as the case may he) from the date of this notice. Dated, &c." (5.) The tenant or occupier must have neg- Tenant or looted or refused to deliver up possession of the Sthave premises. Where the person wrongfully with- rlfuaedto'"' Digitized by Microsoft® 376 I,AW OF LANDLORD AND TENANT. give up pos- holdinsr the premises is an undertenant or assiar- nee, the landlord should take proceedings against him and not against the original lessee. Landlord or (6.) The landlord or Ms agent may proceed Mellon* alone under this act, which in some instances is an to'^roceea advantage, as rendering the employment of a under this solicitor unuecessary, the "agent" being com- petent to represent the landlord. Jurisdiction The jurisdiction of the justices is neither ousted nol misted ^7 ^^^ tenant setting up title in a third person, if of'atir''"'^ the tenancy and its legal determination are proved to their satisfaction {Rees v. Davies, 5 0. B., N. S. 56), nor by a claim of title in proceedings to re- cover possession of a house alleged to belong to a parish, under 59 Greo. 3, c. 12, s. 24, as in that case the question of title is necessarily involved in the matter which the justices have to deter- mine. {Ex parte Vatighan, L. E., 2 Q. B. 114 ; 36 L. J., M. C. 17.) But the tenant may show that he has acquired title by the Statute of Limi- tations, so that no warrant should be issued. {Webh V. Fordred, 32 J. P. 114.) Extension 1 & 2 Vict. c. 74 has been extended to masters of act. q£ grammar, charity and other schools (3 & 4 Vict. c. 77, s. 19 ; 4 & 5 Vict c. 38, s. 18, and 23 & 24 Vict. c. 136, s. 13) ; to occupiers of poor allotments (8 & 9 Viet. c. 118, s. Ill) ; to per- sons encroaching on lands enclosed (15 & 16 Vict. c. 79, s. 13 ; Chikote v. Youldon, 29 L. J., M. C. 197), and to occupiers of lands vested in the Secretary of State for War. (22 & 23 Vict, c. 12, s. 5.) Sect. 6. — Recovery of deserted Premises hy Proceedings before Justices. 11 Geo. 2, If any tenant holding any lands, tenements or c. 19, 6. 16. tiereditaments at a rack rent, or, where the rent Digitized by Microsoft® PROCEEDINGS BEFORE JUSTICES OF THE PEACE. 377 reserved shall be full three-fourths of the yearly- value of the demised premises, who shall be in arrear for one year's rent [since amended to one half-year's rent, although no express right of re- entry reserved, 57 Geo. 3, c.' 52], shall desert the demised premises, and shall leave the same uncul- tivated or unoccupied so as no sufScient distress can be had to countervail the arrears of rent, it shall and may be lawful for two or more justices of the peace for the county or place (having no interest in the demised premises), at the request of the lessor or landlord, lessors or landlords, or his, her or their bailiff and receiver, to go upon and view the same, and to affix, or cause to be affixed, on the most notorious part of the premises, notice in writing what day — at the distance of fourteen days at least — [clear days. Creak v. Justices of Brighton, 1 F. & F. 110] they will return to take a second view thereof ; and if upon such second view the tenant or some person on his or her behalf shall not appear or pay the rent in arrear, or there shall not be sufficient distress on the premises, then the said justices may put the landlord or landlords, lessor or lessors into the possession of the said demised premises, and the lease thereof to such tenant as to such demise shall from thenceforth become void. (11 Geo. 2, c. 19, s. 16.) An appeal lies from the justices to the judges Appeal, on circuit in the respective counties in which the seot. ir. premises lie (see Meg. v. Sewell, 8 Ci. B. 161), and if they lie in the city of London or county of Middlesex, then to the judges of the Queen's Bench and Common Pleas. (11 Geo. 2, c. 19, s. 17.) In the metropolis it is not necessary that the in the magistrate should go personally to view the pre- TT^y- ' mises, but he may issue a warrant to a constable c. m, s. 13'. Digitized by Microsoft® 378 LAW OF LANDLOED AND TENANT. of the metropolitan police to affix the notice, and upon a return to such warrant and proof that neither the tenant nor any person on his behalf appeared and paid the rent, and that there is not sufficient distress upon the premises, any such magistrate may issue a warrant to such constable to put the landlord, lessor or agent into possession. (3 & 4 Yict. c. 84, s. 13.) Every constable to whom such warrant shall be directed must execute and return the same pursuant to the provisions in 2 & 3 Vict. 0. 47. In the city The Lord Mayor and aldermen of London ofLoadon. i rt ....... -, , H, a..„T7-x have the same nurisdiction and power as two 11 & 12 Vict. ... , ^-1 r-i n in -i h / -nj 7 0. 43, s. 34. ]ustices under 11 (ieo. 2, c. 19, s. 17 (see Midwards V. Hodges, 15 C. B. 477), but not the same as a metropolitan police magistrate imder 3 & 4 Vict, c. 84, s. 13 {supra), so that they must proceed in like manner as the justices, and cannot send a constable to view premises and affix notices, &c. By 21 & 22 Vict. c. 73, s. 1, every stipendiary magistrate may do alone aU acts authorized to be done by two justices. In proceedings to recover possession of deserted premises under the act of Greo. 2, no information or complaint on oath is necessary in order to justify the interference of magistrates under that act. {Basten v. Careiv, 3 B. & 0. 649 ; 5 D. & E. 558.) What are Where a tenant ceases to reside on the premises preSL^l for several months and leaves them without a sufficient distress, they are " deserted" within the meaning of this act, although a servant be found upon them {Ex parte Pilton, 1 B. & Aid. 369 ; and see Taylerson v. Peters, 7 A. & E. 110) ; but, on the other hand, where the wife and tenant's children remained on the premises, without any furniture except three or four chairs stated to belong to a neighbour, it was held that the pre- Digitized by Microsoft® PROCEEDINGS BEFORE JUSTICES OF THE PEACE. 379 mises were not so deserted. {Asheroft v. Bourne, 3 B. & Ad. 684.) The magistrates should always have a record of their proceedings, under this act, drawn up. Its production being a conclusive answer to an action of trespass against them (see per Abbott, 0. J., Basten v. Careiv, 3 B. & 0. 649), and a protec- tion to the landlord and constable who assisted in getting possession, even though an appeal has been successful. [Asheroft v. Bourne, 3 B. & Ad. 684; Reg. v. Seivell, 8 Q. B. 161.) Digitized by Microsoft® Digitized by Microsoft® ( 381 ) APPENDIX (A). STAMPS. The foUomng provisions as to stamp duties are contained in the Schedule to 33 & 34 Vict. c. 97:— Lease oe Tack — (1.) For any definite term less ttan a year: (a.) Of any dwellmg-house or tenement, or part of a dwelUng-liouse or tenement, at a rent not exceeding the £ rate of lOZ. per annum s. d. 1 [b.) Of any fumisKed dwelliug-liouse or apartments where the rent for such term exceeds Ibl. , 2 ■ The {e.) Of any lands, tenements, or heritable subjects ex- cept or otherwise than as aforesaid duty as a lease for a year at the rent re- served for the definite term. (2.) For any other definite term or for any indefinite term: Of any lands, tenements, or heritable subjects — Where the consideration, or any part of the considera- tion, moving either to the lessor or to any other person, consists of any money, stock, or security ; In respect of such consideration. The same duty as a conveyance on a sale for the same considera- tion. Digitized by Microsoft® 382 APPENDIX. Where the consideration or any part of the considera- tion is any rent ; In respect of such consideration: If the rent, 'whether reserved as a yearly rent or otherwise, is at a rate or average rate: — If the term is If the term definite, and being definite If the term does not ex- ceed 35 years. G?CGG GQ.S being definite exceeds 35 years hut or is inde- does not ex- 100 years. finite. ceed 100 years. £ s. d. £ s. d. £ s. d. Not exceeding 5?. per annum. . 6 3 6 Exceeding — 5?. and not exceeding 10? 1 6 12 10?. „ „ 15? 1 6 9 18 15?. „ ,, 20? 2 12 1 4 20?. „ „ 25? 2 6 15 1 10 25?. „ ,, 50? 5 1 10 3 50?. „ ,, 75? 7 6 2 5 4 10 75?. ,, „ 100?. .... 10 3 6 100?. For every fuU sum of 50?., and also for any fractional part of 50?. thereof 5 1 10 3 Agreements for not more than thirty- five years to be charged (3.) Of any other kind -whatsoever not hereinbefore described 10 The following important provisions are also contained in the Act itself (33 & 34 Vict. c. 97) :— Sect. 96 (1). An agreement for a lease or tack, or Tvith respect to the letting of any lands, tenements, or heritable subjects for any term not exceeding thirty-five years, is to be charged, with the same duty as if it were an actual lease or tack made for the term and consideration mentioned in the agree- ment. (2) A lease or tack made subsequently to, and in conformity with, such an agreement duly stamped, is to be charged with the duty of sixpence only. Sect. 97 (1). Where the consideration, or any part of the consideration, for which any lease or tack is granted or agreed to be granted, does not consist of money, but consists of any produce or other goods, the value of such produce or goods is to be deemed a consideration in respect of which the lease or tack or agreement is- chargeable -with ad valorem duty; and where it is stipulated that the value of such produce or goods is to amount at least to, or is not to exceed, a given sum, or where Leases, how to he charged in respect of produce, &c. Digitized by Microsoft® STAMPS. 383 tlie lessee is specially charged with, or has the option of paying 33 & 34 vict. after, any permanent rate of conversion, the value of such c. 97. produce or goods is, for the purpose of assessing the ad valorem duty, to be estimated at such given sum, or according to such permanent rate. (2) A lease or tack or agreement made either entirely or Effect of partially for any such consideration, if it contains a statement ^^S"™* of the value of such consideration, and is stamped in accordance "with such statement, is, so far as regards the subject-matter of such statement, to be deemed duly stamped, unless or untU it is otherwise shown that such statement is incorrect, and that it is in fact not duly stamped. Sect. 98 (1). A lease or tack, or agreement for a lease or Directions tack, or with respect to any letting, is not to be charged with "^ *" ?-^^ ™ any duty in respect of any penal rent, or increased rent in the cases, nature of penal rent, thereby reserved or agreed to be reserved or made payable, or 1by reason of being made in consideration of the surrender or abandonment of any existing lease, tack or agreement of or relating to the same subject-matter. (2) No lease made for any consideration or considerations in respect whereof it is chargeable with ad valorem duty, and in further consideration either of a covenant by the lessee to make, or of his having previously made, any substantial improvement of or addition to the property demised to him, or of any cove- nant relating to the matter of the lease, is to be charged with any duty in respect of such further consideration. (See also 33 & 34 Vict. c. 44.) (3) No lease for a life or lives not exceeding three, or for any term of years determinable with a Ufe or hves not exceeding three, and no lease for a term absolute not exceeding twenty- one years, granted by an ecclesiastical corporation aggregate or sole, is to be charged with any higher duty than thirty-five shillings. Sect. 99. The duty upon an instnunent chargeable with duty Duty in cer- as a lease or tack for any definite term less than a year of — tain cases (1) Any dwelling-house or tenement, or part of a dwelling- "itli'l'^^'fl house or tenement, at a rent not exceeding the rate of hesive ten pounds per annum ; stamp. (2) Any furnished dwelling-house or apartments; or upon the duplicate or counterpart of any such instrument, may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is first executed. Sect. 100 (1). Every person who executes, or prepares or is Penalty in employed in preparing, any instrument upon which the duty certain may, under the provisions of the last preceding section, be °^^^' denoted by an adhesive stamp, and which is not, at or before the execution thereof, duly stamped, shall forfeit the sum of five pounds. (2) Provided that nothing in this section contained shall Proviso, render any person liable to the said penalty of five pounds in respect of any letters or correspondence. Digitized by Microsoft® 384 APPENDIX. AssiQNMENT Or SuEEENDEB for Value : £ s. d. The same duty as on a conveyance. {See 33 & 34 Vict. 0.97, Schedule, title Conveyance or Transfer on Sale ) Surrender, of any kind ■whatsoever, not chargeable "with duty as a conveyance on sale or mortgage . . 10 SOHEDTOE, Imtentoey, Or document of any kind ■whatsoever, referred to in or by, and intended to be used or given in evidence as part of or material to, any other instrument charged -with any duty, but which is separate and distinct from, and not in- dorsed on or annexed to such other instrument : duty as such other instru- ment. In any other case 10 39 VIOT. Cap. 16, s. 11. Ajsr instrument -whereby tlie rent reserved by any otber instrument chargeable ■with stamp duty as a lease or tack and duly stamped accordingly is increased, shall not be chargeable -with stamp duty other^wise than as a lease or tack in consideration of the additional rent thereby made payable. Digitized by Microsoft® ( 385 ) APPENDIX (B). 38 & 39 VICT. Cap. 92. An Act for amending the Law relating to Agricul- tural Holdings in England. [\^th August, 1875.] Be it enacted by the Queen's most Excellent Majesty, by and witli the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Preliminary. 1. This Act may be cited as The Agricultural Holdings Short title. (England) Act, 1875. 2. This Act shall commence from and immediately after Commence- the fourteenth day of February, one thousand eight hun- ^^^^ °' •"='• dred and seventy six. (See p. 233.) 3. This Act shall not extend to Scotland or Ireland. Extent of 4. In this Act— ""=*• " Contract of tenancy " means a letting of land for interpreta- a term of years, or for lives, or for lives and *'°°- years, or from year to year, or at will : "Determination of tenancy " means the cesser of a contract of tenancy by reason of eflB.uxion of time, or from any other cause : " Landlord " means the person for the time being entitled to possession of land subject to a con- tract of tenancy, or entitled to receipt of rent reserved by a contract of tenancy, whatever be the extent of his interest, and although the land or his interest therein is encumbered or charged by himself or his settlor, or otherwise, to any extent ; the party to a contract of tenancy under which land is actually occupied being alone deemed to be the landlord in relation to the actual occupier : E.&L. C C Digitized by Microsoft® 386 APPENDIX. " Tenant" means tlie holder of land under a con- tract of tenancy : ' ' Landlord " or " tenant ' ' includes tlie agent autho- rized in writing to act under this Act generally, or for any special purpose, and the executors, administrators, assigns, hushand, guardian, committee of the estate, or trustees in bank- ruptcy, of a landlord or tenant : "Holding" includes all land held by the same tenant of the same landlord for the same term under the same contract of tenancy : "Absolute owner" means the owner or person capable of disposing, by appointment or other- wise, of the fee simple or whole interest of or in freehold, copyhold, or leasehold land, although the land or his interest therein is mortgaged, encumbered, or charged to any extent : " County court" in relating to a holding, means the county couri} within the district whereof the holding or the larger portion thereof is situate : "Person" includes a body of persons and a corpo- ration aggregate or sole. The designations of landlord and tenant shall, for the purposes of this Act, continue to apply to the parties to a contract of tenancy until the conclusion of any proceedings taken under this Act on the determination of the tenancy. Tenant's title to com- pensation. Conipensation. 5. Where, after the commencement of this Act, a tenant executes on his holding an improvement comprised in either of the three classes following : First Class. Drainage of land. Erection or enlargement of buildings. Laying down of permanent pasture. Making and planting of osier beds. Making of water meadows or works of irrigation. Making of gardens. Making or improTing of roads or bridges. Making or improving of watercourses, ponds, wells, or reservoirs, or of works for supply of water for agricultural or domestic purposes. Making of fences. Planting of hops. Planting of orchards. Eeclaiming of waste land. Warping of land. Digitized by Microsoft® AGRICULTUEAL HOLDINGS (eNGLANd) ACT, 1875. 387 Second Class. Boning of land witli undis- solved bones. Chalking of land. Clay-burning. Claying of land. Liming of land. Marling of land. Third Class. Application to land of pur- chased artificial or other purchased manure. Consumption on the holding by cattle, sheep, or pigs of cake or other feeding stuff not produced on the holding. he shall be entitled, subject to the provisions of this Act, to obtain, on the determination of the tenancy, compensa- tion in respect of the improvement. (See pp. 233, 234, 235.) 6. An improvement shall not in any case be deemed. Time in for the purposes of this Act, to continue unexhausted ^"^ye^^t beyond the respective times following after the year of exhausted, tenancy in which the outlay thereon is made (see pp. 235, 236) : Where the improvement is of the first class, the end of twenty years : Where it is of the second class, the end of seven years : Where it is of the third class, the end of two years. 7. The amount of the tenant's compensation in respect Amount of of an improvement of the first class shall, sub j eot to the tenant's provisions of this Act, be the sum laid out by the tenant tion in first on the improvement, with a deduction of a proportionate class. jiart thereof for each year while the tenancy endures after the year of tenancy in which the outlay is made and while the improvement continues unexhausted ; but so that where the landlord was not, at the time of the consent given to the execution of the improvement, absolute owner of the holding for his own benefit, the amount of the compensation shall not exceed a capital sum. fairly representing the addition which the improvement, as far as it continues unexhausted at the determination of the tenancy, then makes to the letting value of the holdiog. (See p. 235.) 8. The amount of the tenant's compensation in respect Amount of of an improvement of the second class shall, subject to the co^pensa- c c 2 Digitized by Microsofi® 388 APPENDIX. tionin second class. Amount of tenant's compensa- tion in third Consent of landlord for first class. Deduction in first class for want of repair, &c. Notice to landlord for second dass. Exclusion of compensa- tion in third class after exhausting crop. Exclusion of compensa- tion for con- sumption of, cake, &c. in certain Itestrictions as to third class. provisions of tMs Act, be tlie sum properly laid out by tbe tenant on tbe improvement, with a deduction of a propor- tionate part thereof for each year while the tenancy- endures after the year of tenancy in wMcb the outlay is made and while the improvement continues unexhausted. (See p. 236.) 9. The amount of the tenant's compensation in respect of an improvement of the third class shall, subject to the provisions of this Act, be such proportion of the sum pro- perly laid out by the tenant on the improvement as fairly represents the value thereof at the determination of the tenancy to an incoming tenant. (See p. 236.) 10. The tenant shall not be entitled to compensation in respect of an improvement of the first class, unless he has executed it with the previous consent in writing of the landlord. (See p. 235.) 11. In the ascertainment of the amount of the tenant's compensation in respect of an improvement of the first class, there shall be taken into account, in reduction thereof, any smn reasonably necessary to be expended for the purpose of putting the same into tenantable repair or good condition. (See p. 235.) 12. The tenant shall not be entitled to compensation in respect of an improvement of the second class, imless, not more than forty-two and not less than seven days before beginning to execute it, he has given to the landlord notice in writing of his intention to do so, nor where it is exe- cuted after the tenant has given or received notice to quit, unless it is executed with the previous consent in writing of the landlord. (See p. 236.) 13. The tenant shall not be entitled to compensation in respect of an improvement of the third class, where, after the execution thereof, there has been taken from the por- tion of the holding on which the same was executed, a crop of corn, potatoes, hay, or seed, or any other exhaust- ing crop. 14. The tenant shall not be entitled to compensation in respect of an improvement of the third class, consisting in the consumption of cake or other feeding stuff, where, under the custom of the country or an agreement, he is entitled to and claims payment from the landlord or incoming tenant in respect of the additional value given by that consumption to the manure left on the holding at the determination of the tenancy. (See p. 237.) 15. In the ascertainment of the amount of compensation in respect of an improvement of the third class, — (1.) There shall not be taken into account any larger Digitized by Microsoft® AGRICTJLTUEAL HOLDINGS (kNGLANd) ACT, 1875. 389 outlay during the last year of the tenancy than tlie average amount of the tenant's outlay for like purposes during the three next preceding years of the tenancy, or other less number of years for which the tenancy has endiired; and, (2._) There shall he deducted the value of the manure that would have been produced by the consump- tion on the holding of any hay, straw, roots, or green crops sold ofi the holding within the last two years of the tenancy or other less time for which the tenancy has endured, except as far as a proper return of manure to the holding has been made in respect of such produce sold ofl. (See p. 237.) 16. The amount of the tenant's compensation shall be Deductions subject to the foUowing deductions: *™™ ™™- (t.) For taxes, rates, and tithe-rentcharge due or be- for taxes' coming due in respect of the holding to which rent, &e. the tenant is liable as between him and the land- lord: (2.) For rent due or becoming due in respect of the holding : (3.) For the landlord's compensation under this Act. (See p. 238.) 17. In the ascertainment of the amount of the tenant's Set-off of compensation there shall be taken into account in reduc- ^^^^l *° tion thereof any benefit which the landlord has given or allowed to the tenant in consideration of the tenant exe- cuting the improvement. (See p. 238.) 18. "Where a landlord commits a breach of covenant or Tenant's other agreement connected with the contract of tenancy, ti™^^^" and the tenant claims under this Act compensation in breach of respect of an improvement, then the tenant shall be en- <»Tenant. titled to obtain, on the determination of the tenancy, com- pensation in respect of the breach, subject and according to the provisions of this Act. (See p. 237.) 19. Where a tenant commits or permits waste, or Landlord's commits a breach of a covenant or other agreement peJ^^o™" connected with the contract of tenancy, and the tenant claims compensation under this Act in respect of an im- provement, then the landlord shall be entitled, by coun- ter-claim, but not otherwise, to obtain, on the determina- tion of the tenancy, compensation in respect of the waste or breach, subject and according to the provisions of this Act. But nothing in this section shall enable a landlord to obtain under this Act compensation in respect of waste or Digitized by Microsoft® 390 APPENDIX. Notice of intended claim. Compensa- tion agreed or settled ty reference. Appoints ment of referee or referees and umpire. a breaoh committed or permitted in relation to a matter of husbandry more tlian four years before the determination of the tenancy. (See pp. 238, 239.) Procedure. 20. Notwithstanding anything in this Act, a tenant shall not be entitled to compensation under this Act unless one month at least before the determination of the tenancy he gives notice in writing to the landlord of his intention to make a claim for compensation under this Act. "Where a tenant gives such a notice the landlord may, before the determination of the tenancy, or within fourteen days thereafter, give a, counter-notice in writing to the tenant of his intention to make a claim, for compensation under this Act. Every such notice and counter-notice shall state, as far as reasonably may be, the particulars of the intended claim. (See p. 239.) 21. The landlord and the tenant may agree on the amoun.t and mode and time of payment of compensation to be paid to the tenant or to the landlord under this Act. If in any case they do not so agree the difference shall be settled by a reference. (See p. 239.) 22. Where there is a reference under this Act, a referee, or two referees and an um.pire, shall be appointed as follows : (1.) If the parties concur, there may be a single referee appointed by them jointly: (2.) If before award the single referee dies or becomes incapable of acting, or for seven days after notice from the parties, or either of them, requiring him to act, fails to act, the proceedings shall begin afresh, as if no referee had been appointed : (3.) If the parties do not concur in the appointment of a single referee, each of them shall appoint a referee: (4.) If before award one of two referees dies or becomes incapable of acting, or for seven days after notice from either party requiring him to act faUs to act, the party appointing him shall appoint another referee: (5.) Notice of every appointment of a referee by either party shaU be given to the other party: (6.) If for fourteen days after notice by one party to the other to appoint a referee, or another referee, the other party fails to do so, then, on the application Digitized by Microsoft® AGBICULTUEAL HOLDINGS (eNGLAND) ACT, 1875. 391 of the party giying notice, the county court shall within fourteen days appoint a competent and impartial person to be a referee : (7.) Where two referees are appointed, then (subject to the provisions of this Act) they shall before they enter on the reference appoint an umpire : (S.) If before award an runpire dies or becomes in- capable of acting, the referees shall appoint another umpire : (9.) If for seven days after request from either party the referees fail to appoint an umpire, or another umpire, then, on the application of either party, the county court shall within fourteen days ap- point a competent and impartial person to be the umpire: (10.) Every appointment, notice, and request under this section shall be in writing. (See p. 240.) S3. Provided, that where two referees are appointed, an Eeciuisition umpire nay be appointed as foUows : _ SenTof""*" (1.) If either party, on appointing a referee, requires, umpire by by notice in writing to the other, that the umpire indosiire shall be appointed by the Inclosure Commis- era, &c. sioners for England and Wales, then the umpire, and any successor to him, shall be appointed on the application of either party, by those Commis- sioners : (2.) In every other case, if either party, on appointing a referee, requires, by notice in writing to the other, that the umpire shall be appointed by the county court, then, unless the other party dissents by notice in writing therefrom, the umpire, and any successor to him, shall, on the application of either party, be so appointed, and in case of such dissent, the umpire, and any successor to him, shall be appointed, on the application of either party, by the Inclosure Commissioners for Eng- land and Wales. (Seep. 240.) 24. The powers of the county court under this Act, Exercise of relative to the appointment of a referee or umpire, shall J°™^°* be exerciseable by the judge of the court haying jurisdic- court, tion, whether he is without or within his district, and may, by consent of the parties, be exercised by the registrar of the court. (See p. 240.) 25. The delivery to a referee of his appointment shall Mode of be deemed a submission to a reference by the party de- to reference. Uvering it ; and neither party shall have power to revoke Digitized by Microsoft® 392 APPENDIX. PoTver for referee, &c. to require production of docu- ments, ad- minister oaths, &c. Power to proceed in absence. Form of award. Time for award of referee or referees. Bef erence to and award by umpire. Duration of improve- ment to be foimd. a submission, or tlio appointment of a referee, witliout the consent of the other. (See p. 240.) 26. The referee or referees or umpire may call for the production of any sample, or voucher or other document, or other evidence which is in. the possession or power of either party, or which either party can produce, and which to the referee or referees or umpire seems necessary for determination of the matters referred, and may take the examination of the parties and witnesses on oath, and may administer oaths and take affirmations ; and if any person so sworn or affirming wilfully and corruptly gives false evidence he shall he guilty of perjury. (See p. 240.) 27. The referee or referees or umpire may proceed in the absence of either party where the same appears to him or them expedient, after notice given to the parties. (See p. 240.) 28. The award shall be in writing, signed by the referee or i-eferees or umpire. 29. A single referee shall make his award ready for delivery within twenty-eight days after his appointment. Two referees shall make their award ready for delivery within twenty-eighth days after the appointment of the last appointed of them, or within such extended time (if any) as they from to time to time jointly fix by writing under their hands, so that they make their award ready for delivery within a time not exceeding in the whole forty- nine days after the appointment of the last appointed of them. (See p. 240.) 30. Where two referees are appointed and act, if they fail to make their award ready for delivery within the time aforesaid, then, on the expiration of that time, their authority shall cease, and thereupon the matters referred to them shall stand referred to the umpire. (See p. 240.) The umpire shall make his award ready for delivery within twenty- eight days after notice in writing given to him by either party or referee of the reference to him, or within such extended time (if any) as the registrar of the county court from time to time appoints, on the application of the umpire or of either party, made before the expira- tion of the time appointed by or extended under this section. 31. The award shall find and state the time at which each improvement, in respect whereof compensation is awarded, is taken, for the purposes of the award, to be exhausted. (See p. 240.) Digitized by Microsoft® AGRICDLTUE.AL HOLDINGS (eNGLAND) ACT, 1875. 393 32. The award shall not award a sum generally for Award to compensation, hut shall, as far as reasonably may he, ^^g*"*" specify — • The several improvements, acts, and things in respect whereof compensation is awarded ; The time at which each thereof was executed, committed, or permitted; In the case of an improvement of the first class where the landlord was not at the time of the consent given to the execution thereof absolute owner of the holding ■for his own benefit, the extent to which the improve- ment adds to the letting value of the holding; The sum awarded in respect of each improvement, act, or thing; and The sum laid out by the tenant on each improvement. (See p. 240.) 33. The costs of and attending the reference, including Costs of re- the remuneration of the referee or referees and umpire, Terence, where the umpire has been required to act, and including other proper expenses, shall be borne and paid by the parties in such proportion as to the referee or referees or umpire appears just, regard being had to the reasonable- ness or unreasonableness of the claim of either party in respect of amount, or otherwise, and to all the circum- stances of the case. The award may direct the payment of the whole or any part of the costs aforesaid by the one party to the other. The costs aforesaid shall be subject to taxation by the registrar of the county court, on the application of either party, but that taxation shall be subject to review by the judge of the county court. (See p. 240.) 34. The award shaU fix a day, not sooner than one month Day for after the delivery of the award, for the payment of money Payment, awarded for compensation, costs, or otherwise. (See p. 240.) 35. A submission or award shall not be made a rule of Submission any court, or be removable by any process into any court, ^g^^blff "^^ and an award shall not be questioned otherwise than as &c. provided by this Act. (See p. 240.) 36. Where the sum claimed for compensation exceeds Appeal to fifty pounds, either party may, within seven days after ^^^ dehvery of the award, appeal against it to the judge of the county court on all or any of the following grounds : — 1. That the award is invalid; 2. That compensation has been awarded for improve- ments, acts, or things, breaches of covenants or Digitized by Microsoft® 394 APPENDIX. Recovery of compensa- tion. Appoint- ment of guardian. PrOTiBions respecting manied or for committing or permitting waste, in respect of wHcIl the party claiming was not entitled to compensation; 3. That compensation tas not been awarded for im- provements, acts, or tilings, breaclies of covenants or agreements, or for committing or permitting waste, in respect of wHcli tlie party claiming was entitled to compensation; and the judge shall hear and determine the appeal, and may, in his discretion, remit the case to be reheard as to the whole or any part thereof by the referee or referees or umpire, with such directions as he may think fit. If no appeal is so brought, the award shaU be final. The decision of the judge of the county court on appeal shall be final, save that the judge shall, at the request of either party, state a special case on a question of law for the judgment of the High Court of Justice, and the decision of the High Court on the case, and respecting costs and any other matter connected therewith, shall be final, and the judge of the county court shall act thereon. (See p. 241.) 37. Where any money agreed or awarded or ordered on appeal to be paid for compensation, costs, or otherwise, is not paid within fourteen days after the time when it is agreed or awarded or ordered to be paid, it shall be recoverable, upon order made by the judge of the county court, as money ordered by a county court under its ordi- nary jurisdiction to be paid is recoverable. (See p. 241.) 38. Where a landlord or tenant is an infant without a guardian, or is of unsound mind, not so found by in- quisition, the county court, on the application of any person interested, may appoint a guardian of the infant or person of unsound mind for the purposes of this Act, and may change the guardian if and as occasion requires. 39. The county court may appoint a person to act as the next friend of a married woman for the purposes of this Act, and may remove or change that next friend if and as occasion requires. A married woman entitled for her separate use, and not restrained from anticipation, shall, for the purposes of this Act, be in respect of land as if she was unmarried. Where any other married woman is desirous of doing any act under this Act, her husband's concurrence shaU be requisite, and she shall be examined apart from hi-m by the county court, or by the judge of the county court for the place where she for the time being is, touching her know- ledge of the nature and effect of the intended act, and it Digitized by Microsoft® AGRICULTURAL HOLDINGS (eNGLANd) ACT, 1875. 395 stall be ascertained that she is acting freely and volun- tarily. 40. The costs of proceedings in the county court under Costs in this Act shall be in the discretion of the court. comt^ The Lord Chancellor may from time to time prescribe a scale of costs for those proceedings, and of costs to be taxed by the registrar of the court. (See p. 241.) 41. Any notice, request, demand, or other instrument Service of under this Act may be served on the person to whom it is ^"^""^ ^''■ to be given, either personally or by leaving it for him at his last known place of abode in England, or by sending it through the post in a registered letter addressed to him there: and if so sent by post it shall be deemed to have been served at the time when the letter oontaiaing it would be delivered in ordinary course; and in order to prove service by letter it shaU be sufficient to prove that the letter was properly addressed and posted, and that it con- tained the notice, request, demand, or other instrument to be served. Charge of Tenant's Compensation. 42. A landlord, on paying to the tenant the amount of Power (or compensation due to him under this Act, may obtain landlord, on from the county court a charge on the holding in respect pensaSo ™ thereof. to obtain The court shall have power, on proof of the payment, <='™^^- and on being satisfied of the observance in good faith by the parties of the conditions imposed by this Act', to make an order charging the holding with repayment of the amount paid, or any part thereof, with such interest, and by such instalments, and with such directions for giving effect to the charge, as the court thinks fit. But, where the landlord obtaining the charge is not absolute ovTner of the holding for his own benefit, no in- stalment or interest shall be made payable after the time when the improvement in respect whereof compensation is paid will, for the purposes of this Act, be taken to be exhausted. The instalments and interest shall be charged in favour of the landlord, his executors, administrators and assigns. 43. Any company now or hereafter incorporated by Advance parliament, and having power to advance money for the made by a improvement of land, may take an assignment of any l^f^^^°^ charge made by a county court under the provisions of provement this Act, upon such terms and conditions as may be agreed °^ i™"!- upon between such company and the person entitled to such charge; and such company may assign any charge Digitized by Microsoft® 3&6 APPENDIX. Duration of charge. Application of Act to crown lands. Application of Act to land of Duchy of Lancaster. SO acquired by them to any person or persons -whom- soever. 44. The sum charged by the order of a county court under this Act shall be a charge on the holding for the landlord's interest therein, and for all interests therein sub- sequent to that of the landlord; but so that the charge shall not extend beyond the landlord's interest where the landlord is himself a tenant of the holding. Grown and Duchy Lands. 45. This Act shall extend and apply to land belonging to her Majesty the Queen, her heirs and successors, in right of the Crown. With respect to such land, for the purposes of this Act, the Commissioners of her Majesty's Woods, Forests, and Land Eevenues, or one of them, or other the proper officer or body having charge of such land for the time being, or in case there is no such officer or body, then such person as her Majesty, her heirs or successors, may appoint in ■writing under the Eoyal Sign Manual, shall represent her Majesty, her heirs and successors, and shall be deemed to be the landlord. Any compensation payable under this Act by the Com- missioners of her Majesty's Woods, Forests, and Land Eevenues, or either of them, in respect of an improvement of the first class, shall be deemed to be payable in respect of an improvement of land within section one of the Crown Lands Act, 1866, and the amount thereof shaU be charged and repaid as in that section provided with respect to the costs, charges, and expenses therein mentioned. Any compensation payable under this Act by those Commissioners, or either of them, in respect of an improve- ment of the second class, or of the third class, shall be deemed to be part of the expenses of the management of the Land Eevenues of the Crown, and shall be payable by those Commissioners out of such money and in such manner as the last-mentioned expenses are by law pay- able. 46. This Act shall extend and apply to land belonging to her Majesty, her heirs and successors, in right of the Duchy of Lancaster. With respect to such land, for the purposes of this Act, the Chancellor for the time being of the Duchy shall repre- sent her Majesty, her heirs and successors, and shall be deemed to be the landlord. The amount of any compensation payable under this Act by the Chancellor of the Duchy in respect of an im- Digitized by Microsoft® AGRICULTURAL HOLBINGS (eNGLAND) a!cT, 18'/'5. 397 provement of the first class shall be deemed to be an expense incurred in improvement of land belonging to ber Majesty, ber heirs or successors, in right of the Duchy, -within section twenty-five of the Act of the fifty- seventh year of King George the Third, chapter ninety - seven, and shall be raised and paid as in that section provided with respect to the expenses therein mentioned. The amoimt of any compensation payable under this Act by the chancellor of the Duchy in respect of an im- provement of the second class or of the third class shall be paid out of the annual revenues of the Duchy. The amount of any compensation payable under this Act to the Chancellor of the Duchy shall be paid into the hands of the Eeceiver General of the revenues of the Duchy, or of his sufficient deputy or deputies ; and receipts shall be given by him or them for the same ; and the same shall be applied as purchase-money for land sold under The Duchy of Lancaster Lands Act, 1855, is applicable under section two of that Act. 47. This Act shall extend and apply to land belonging Application to the Duchy of ComwaU. ifnt^of^ With respect to such land, for the purposes of this Act, Duchy of such person as the Duke of Cornwall for the time being, Cornwall. or other the personage for the time being entitled to the revenues and possessions of the Duchy of Cornwall, from time to time, by sign manual, warrant, or otherwise, ap- points, shall represent the Duke of Cornwall, or other the personage aforesaid, and be deemed to be the landlord, and may do any act or thing under this Act which a land- lord is authorized or required to do thereunder. Any compensation payable under this Act by the Duke of Cornwall, or other the personage aforesaid, in respect of an improvement of the first class, shall be deemed to be payable in respect of an improvement of land within section eight of The Duchy of Cornwall Management Act, 1863, and the amount thereof may be advanced and paid from the money mentioned in that section, subject to the provision therein made for repayment of sums advanced for improvements. Ecclesiastical and Charity Lands. 48. Where lands are assigned or secured as the endow- Landlord, ment of a see, the powers by this Act conferred on a land- ^J'^J^w-''' lord shall not be exercised by the archbishop or bishop, in respect of those lands, except with the previous approval in writing of the Estates Committee of the Ecclesiastical Commissioners for England. Digitized by Microsoft® 398 APPENDIX. Landlord, 49. Wiere a landlord is incumbent of an ecclesiastical S^bSiefloe. teneflce, tlie powers by tMs Act conferred on a landlord shall not be exercised by Viim in respect of tlie glebe land or other land belonging to the benefice, except with the Amended by previous approval in writing (a) of the patron of the bene- 39 & 40 Vict, ficg [that is, the person, officer, or authority who, in case the benefice were vacant, would be entitled to present thereto] or of the Governors of Queen Anne's Bounty (that is, the Grovemors of the Bounty of Queen Anne for the Augmentation of the Maintenance of the Poor Clergy). In every such case the Grovemors of Queen Anne's Bounty may, if they think fit, on behalf of the incumbent, out of any money in their hands, pay to the tenant the amount of compensation due to him under this Act ; and thereupon they may, instead of the incumbent, obtain from the county court a charge on the holding, in respect thereof, in favour of themselves. Every such charge shall be effectual, notwithstanding any change of the incumbent. (J) The Governors of Queen Anne's Bounty, lefore grant- ing their approval in any case under this section, shall give notice of the application for their approval to the patron of the henefice [that is, the person, officer, or authority who, in case the benefice were then vacant, would he entitled to present thereto). 50. The powers by this Act conferred on a landlord shall not be exercised by trustees for Ecclesiastical or charitable purposes, except with the previous approval in writing of the Charity Commissioners for England and Wales. Landlord, charity trustees, &c Time of notice to quit. Notice to quit. 51. Where a half-year's notice, expiring with a year of tenancy, is by law necessary and sufficient for determina- tion of a tenancy from year to year, a year's notice so ex- piring shall by virtue of this Act be necessary and suffi- cient for the same ; but nothing in this section shall extend to a case where -the tenant is adjudged bankrupt, or has filed a petition for a composition or arrangement with his creditors. [a) The words in brackets are introduced by 39 & 40 Viet, c. 74, s. 3. (b) The clause in italics ia repealed by 39 & 40 Vict. c. 74, 8. 2. Digitized by Microsoft® AGRICULTURAL HOLDINGS (eNGLANd)' ACT, 18t5. 399 Resumption for Improvements. 52. Wliere on a tenancy from year to year a notice to EesumptioD quit is given by tlie landlord mth. a view to the nse of sioa°for^^t- land for any of the following purpose,- — • tages, &o. The erection of farm labourers' cottages or other houses, with or without gardens ; The providing of gardens for existing farm labourers' cottages or other houses ; The allotment for labourers of land for gardens or other purposes ; The planting of trees ; The opening or working of any coal, ironstone, lime- stone, or other mineral, or of a stone quarry, clay, sand, or gravel pit, or the construction of any works or buildings to be used in connexion therewith; The obtaining of brick earth, gravel, or sand ; The making of a watercourse or reservoir; The making of any road, tramroad, siding, canal or basin, or any wharf, pier, or other work connected therewith; and the notice to quit so states, then it shall, by virtue of this Act, be no objection to the notice that it relates to part only of the holding. In every such case the provisions of this Act respecting compensation shall apply as on determination of a tenancy in respect of an entire holding.- The tenant shall also be entitled to a proportionate re- duction of rent in respect of the land comprised in the notice to quit, and in respect of any depreciation of the value to him of the residue of the holding, caused by the withdrawal of that land from the holding or by the use to be made thereof ; and the amount of that reduction shall be ascertained by agreement or settled by a reference under this Act, as in case of compensation (but without appeal). The tenant shall further be entitled, at any time within twenty-eight days after service of the notice to quit, to serve on the landlord a notice in writing to the efiect that he (the tenant) accepts the same as a notice to quit the entire holding, to take efiect at the expiration of the then current year of tenancy; and the notice to qiiit shall have effect accordingly. Fixtures. 53. Where after the commencement of this Act a tenant Tenant's affixes to his holding any engine, machinery, or other gtuies''*" Digitized by Microsoft® 400 APPENDIX. machinery, &c. fixture for ■wHch lie is not under this Act or otierwise entitled to compensation, and wMcL. is not so affixed in pursuance of some obligation in that behalf or instead of some fixture belonging to the landlord, then such, fixture shall be the property of and be removable by the tenant: Provided as follows: — ■ 1. Before the removal of any fixture the tenant shaU pay all rent owing by Mm, and shall perform or satisfy all other his obligations to the landlord in respect of the holding: 2. In the removal of any fixture the tenant shall not do any avoidable damage to any building or other part of the holding: 3. Immediately after the removal of any fixture the tenant shall make good all damage occasioned to any building or other part of the holding by the removal : 4. The tenant shall not remove any fixture without giving one month's previous notice in writing to the landlord of the intention of the tenant to remove it: 5. At any time before the expiration of the notice of removal, the landlord, by notice in writing given by him to the tenant, may elect to purchase any fixture comprised in the notice of removal, and any fixture thus elected to be purchased shall be left by the tenant, and shall become the property of the landlord, who shall pay the tenant the fair value thereof to an incoming tenant of the hold- ing; and any difference as to the value shall be settled by a reference under this Act, as in case of compensation (but without appeal) : But nothing in this section shall apply to a steam engine erected by the tenant if, before erecting it, the tenant has not given to the landlord notice in writing of his intention to do so, or if the landlord, by notice in writing given to the tenant, has objected to the erection thereof. No restric- tion on con- tract. Adoption of Oeneral Application of Act. 54. Nothing in this Act shall prevent a landlord and tenant, or intending landlord and tenant, from entering into and carrying into effect any such agreement as they think fit, or shall interfere with the operation thereof. (See p. 234.) 55. A landlord and tenant, whether the landlord is parts of Act absolute owner of the holding for his own benefit or not. Digitized by Microsoft® AGRICULTURAL HOLDINGS (eNGLANd) ACT, 1875. 401 may, in any agreement in writing relating to the holding, by agree- adopt hy reference any of the provisions of this Act re- meat, specting procedure or any other matter, -without adopting all the provisions of this Act; and any provision so adopted shall have effect in. connexion with the agreement accord- ingly. (See p. 234.) But where, at the time of the making of the agreement, the landlord is not absolute owner of the holding for his own benefit, no charge shall be made on the holding, under this Act, by virtue of the agreement, greater than or differ- ent in nature or duration from the charge which might have been made thereon, under this Act, in the absence of the agreement. 56. This Act shall apply to every contract of tenancy Application beginning after the commencement of this Act, unless, in jl^l ^_ any case, the landlord and tenant agree in writing, in the nancies, contract of tenancy, or otherwise, that this Act, or any part or provision of this Act, shall not apply to the con- tract; and, in that case, this Act, or the part or provision thereof to which that agreement refers (as the case may be), shall not apply to the contract. (See p. 234.) 57. In any case of a contract of tenancy from year to Application year or at will, current at the commencement of this Act, °^j^^'te- this Act shall not apply to the contract, if within two nancies, months after the commencement of this Act the landlord or the tenant gives notice in writing to the other to the effect that he (the person giving the notice) desires that the existing contract of tenancy between them shall remain unaffected by this Act; but such a notice shall be revocable by writing, and in the absence of any such notice, or on revocation of every such notice, this Act shaR apply to the contract. In every other case of a contract of tenancy current at the commencement of this Act, this Act shall not apply to the contract. (See p. 234.) 58. Nothing in this Act shall apply to a holding that is Exception _^ not either wholly agriciiltural or wholly pastoral, or in culturaTand part agricultural and as to the residue pastoral, or that is small hoia- of less extent than two acres. (Seep. 233.) ""^^^ 59. A tenant shall not be entitled to claim compensation Exception under this Act and under any custom of the country or ^Jj^It^^'^ contract in respect of the same work or thing. (See tion. p. 234.) 60. Except as in this Act expressed, nothing in this Act General shall take away, abridge, or prejudicially affect any power, jf^f ° right, or remedy of a landlord, tenant, or other person, E.&L. DD Digitized by Microsoft® 403 APPENDIX. vested in or exeroiseable by Tn'm by virtue of any other Act or law, or under any custom of the country, or other- wise, in respect of a contract of tenancy or other contract, or of any improvement, waste, emblements, tillages, away- going crops, fixtures, tax, rate, tithe-rentoharge, rent, or other thing. (See p. 234.) Digitized by Microsoft® INDEX. Abandoned Pbemisbs, entry of landlord upon, 197, 198. when operates as a surrender, 197. when does not operate as a surrender, 198. proceedings before justices for reooyery of, 376 — 379. what are, 378. Abandonment of Distebbs, what is not, 186. is a question for the jury, 186. no second distress after voluntary, 185, 186. Abuse os Distress, 177, 178. Acceptance, of rent under void lease, 6, 86. a general indefinite letting, 5. an agreement for a lease, 6, 154, 155. a purchase, 7. an invalid lease, under powers, 17. from tenant holding over, 3, 6. at sufferance, 3, 6. at will, 3, 4, 6. by corporations letting by parol, 7, 27. issue in tail, eflleot of as confirmation, 14, 15. reversioner, effect of, 15. when a waiver of notice to quit, 213. forfeiture, 130, 204, 205. double value, 245. not a waiver of right to additional rent, 144. implication raised by, not conclusive, 8. of assignee of lessee as tenant, by lessor, 258. effect of, 258. Accidental Fiee. See Pibe. meaning of, 105. tenant's liability for, 105. landlord's liabiUty for, 106. ACKNOWI/EDdMENT, of lease by married woman, 13. rent as due, gives right to distrain, 154. Act oe God, injuries to property resulting from, 105. liabihty of tenant to repair, 105. death of distrained cattle in pound by, 177, 185. liability of landlord for, 177, 185. right to emblements on determination of tenancy by, 224. D D 2 Digitized by Microsoft® 404 INDEX. Action, for specific performance, 90. procedure when person directed by court to execute lease refuses, 90. by tenant, for irregular distress, 189. when maintainable, 189. for excessive distress, 190. measure of damages in, 190. for illegal distress, 190, 191. measure of damages in, 190, 191. when may be brought in county court, 191. for double value of distress sold where no rent due, 191. of replevin, 191, 193. proceediags in, 192, 193. in county courts, 193. security in, 193. form of, 193. upon landlord's covenant to repair, 112, 113. for recovery of taxes, 135, 136. for selling distress before time, 182, after tender, 186. for not selling distress for best price, 182, 183. evidence in, 182, 183. by landlord, to ascertain boundaries, 116. for waste, 122. for use and occupation, 151. when maintainable, 151 — 153. for double value, 243. against whom it lies, 244. when maintainable, 244, 245. by whom maintainable, 245. demand and notice necessary, 244. value, how estimated in, 244, 245. in high court, 245. in county court, 245. for double rent, 246. when not exceeding 50?. in county court, 246. for wrongful removal of away-going crops, 231. for fraudulent removal of goods to avoid distress, 174. for rent, 21, 143, 149, 203. statute of limitations as to, 149. for balance of rent, upon insufficient distress, 185. upon covenant to repair, 107, 113. evidence for tenant in, 107. measure of damages in, 114. for treble damages for poimd breach, 180. for the recovery of land, 267 — 357. See Eecoteet OP Laito, Action poe the. in the high court, 283—327. county court, 327 — 357. Digitized by Microsoft® INDEX. 405 Action — continued. by landlord — contimwd. for the recovery of small tenements, 357 — 376. in the county court, 357 — 370. before justices, 370 — 376. for the recovery of deserted premises, 376 — 379. before justices, 376 — 379. by corporations for breach of terms of parol lease, 27. by issue in tail for waste, 14, 15. for rent, 14, 15. by husband for rents due in right of wife, 157. for apportioned shares of rent, 148. for use and occupation, by corporation, 153. against corporation, 153. by assignee of reversion, 152. by assignee of mortgagor, 152, 153. lies for enjoyment of licence, 153. incorporeal hereditaments, 153. use of a watercourse, 153. right of shooting, 153. pasture and eatage of grass, 153. veins of minerals, 153. by assignee of reversion for rent, 252. breaches of covenant, 252. use and occupation, 152. by master for recovery of premises occupied by servant, not necessary, 9. Acts of Paeliament, rule as to construction of, 236. Additional Eent, on breach of any covenants, 143. particular covenants, 143. in respect of what acts payable, 143, 144. distress for, 143. in the nature of penalty, 143. liquidated damages, 143. whether stamp duty chargeable upon, 94. for improvements, 94. Administkatoes, leases by, 36. when may be granted, 36, 259, 260. voidable, 37. one of several, good, 36. liabiHty of, 261, 262. for rent due in Hfetime of tenant, 261. after death of tenant, 261. for breaches committed by tenant, 261. after death of tenant, 261. how discharged from ^«rsoH«? liabihty, 262. protected by 22 & 23 Vict. u. 35. .262. Digitized by Microsoft® 406 INDEX. AnKLmBTBATOBS— continued. distress by, 157. right of, to emblements, 224. Amiinisteatoes of Cokyiots, conTict's property vests in, 43, 45. leases by, 43. to, 45. AninNlSTEATEIX, marriage of, 37. transfers demising poiver to husband, 37. ADMISSIONS, by tenant, evidence to prove terms of tenancy, 269. in writing of an agreement, effect of, 79. Advasoe, reservation of rent payable in, 137. in farming leases, 138. rent payable in, recoverable by action or distress, 137. Advowsons may be demised, 49. Aqerts, to grant leases by deed mnst be appointed by deed, 35. to enter into agreement for a lease, how authorized, 82. leases by, 35, 36. how to be made, 35, 36. agreements for leases by, 82. payment of rent to, 141. after revocation of his authority, 141, 142. tender of rent to, 186. notice to quit given by, 211, 212. authority of under seal, revocable by parol, 36. occupation of house belonging to principal does not create a tenancy, 8. AaiSTMENT, when cattle at, may be distrained, 166. Aqeeements, for leases, 63, 54, 55, 76, 82. how regarded in equity, 87. distinguished from leases, 53, 54, 55. must be in writing, 77. though for less than three years, 77. requisites of, 77. description of parties, 77. property, 78. signature of party to be charged, 81. what necessary, 81. how effected, 81, 82. by agent, 82. need not be in single document, 78. Digitized by Microsoft® INDEX. 407 Ageeements — continieed. for leases — continued. requisites of — continmd. may be in letter or correspondence, 79. evidenced by any number of documents, 79. must, hoiyever, on their face bo connected -with eaob other, 79. cannot be connected by parol evi- dence, 79. may be identified by, 79. contained in the minutes of a limited company signed by chairman, 79. concluded, distinguished from mere treaties, 80. covenants intended, should be set out verbatim, 86. specific performance of written, 87. of oral, after part performance, 88. treaty for lease not amounting to, "when money has been expended, 90. oral, collateral to "written "when supported, 90. "when incorporated with lease, 91. right to call for lessor's title under, 91, 92. efEeot of 37 & 38 Vict. c. 78, s. 2. .91. stamps on, 92. See Atpeitoix (A). no implied promise for quiet enjoyment in, 99. amount to an undertaking for title, 99. to commence infuturo, 99. of new houses, landlord must put in repair, 106. payment of rent under, effect of, 6, 154, 155. ■when it gives right to distrain, 154, 155. entry and occupation under, effect of, 154. ■when it gives right to distrain, 154. under seal, not amounting to a demise, 151. action for use and occupation upon, 151. right to distrain under, 154, 155. to assign rent not yet due, "within Statute of Frauds, 77. to pay rent, implication arising from, 3, 6, 7, 9. not conclusive, 8. for a purchase, payment of rent imder, 7. not to destroy but to preserve game, operation of, 64. Ageiuultujoi Flxtuees, ■when removable by tenant, 219 — 221. erected "with landlord's consent, 220. Ageicuitcteal Holdinqs Act, 1875. landlord's remedies for "waste under, 122, 238. breach of covenant or contract under, 238. notice to quit tenancies regulated by (s. 51) . .207, 208. ■words " half-year" not the same as six months, 208. compensation for improvements under, 233. Digitized by Microsoft® 408 INDEX. Ageiotottjeal Holdings Act, 1875 — continmd. compensation for improvements of first class, 234. second class, 235. third class, 236. deductions from, 236 — 238. to landlord under, 238. for waste, 122, 238. treach of covenant, &e., 238. to tenant, for breaches of covenant, 238. in what oases applicable, 233. to future tenancies, 234. effect of, on rights and remedies of parties by custom or con- tract, 234. procedure under, 239. particulars of claim, 239. tenant to give written notice of, 239. counter-claim, landlord to give written notice of, 239. differences to be settled by reference, 239. appointment of referee, 239. notice of, to parties, 239. by county court, 239. apporatment of umpire, 239. by referees, 239. county court, 240. inclosure commissioners, 240. powers of referees and umpire, 240. award, delivery of, when to be made, 240. failure to award, proceedings on, 240. form of, 240. costs of, 240. may not be made a mle of court, 240. copy of, to be fled, 241. when subject to appeal to county court, 240. grounds of appeal, 240, 241. appeal may be heard by judge, 241. remitted to referee or umpire, 241. decision of, by judge final, 241. special case on, 241. amount awarded, how recoverable, 241. in county courts, costs of, 241. Ageiottlttjeai, Tenahcies, cbhgations of , 114. as to cultivation, 117. custom attaches to, unless expressly excluded, 114. as to away-going crops, 227, 232. effect of Agricultural Holdings Act upon, 233 — 241. reservations and exceptions in, must be by deed, 63. Alien, leases by, 43. to, 45. enemy, leases to, void, 43. Digitized by Microsoft® INDEX. 409 Alienation, coyenants against, 84, 253. how construed, 253, 254. when good, 253. without consent, 254. when broken, 253 — 255. AiLowANCEa. See Deductions. Alteeations, in lease after execution, effect of, 73. when they render fresh stamp necessary, 96. AiTBASSADOB, goods of, not distrainable, 168. Amendments, of pleadings in High Court, 319 — 321. without leave, 319. with leave, 319. what generally ordered, 319. proper, may be made at any time, 319. after joinder of issue, 319. after cause has been entered for trial, 319. at trial, 319. where made without leave, 319. ■proceedings upon, 319, 320. date of, must be marked, 320. practice at judges' chambers, 320, 321. of claim, by plaintiS after delivery of defence, 320. of original defence thereupon, 320. Amends, tender of, before action for irregular distress, 189. Animals, ferEe naturae, not distrainable, 167. impounded, must be fed and watered, 179. live, may be demised, 49. waste may be done in respect of, 121. ANNtniT, secured by power of distress, payment of, by tenant, 145. deduction of, from rent, 144, 145. Annuities, leases of, 49. Appeal, from award under Agricultural Holdings Act, 1875 . . 240, 241. to judge of the county court, 240. when may be made, 240. within what time, 240. grounds of, 240, 241. may be heard and determined by judge, 241. remitted to referee or umpire, 241. decision of judge, final, 241. judge must, however, on request state special case, 241. in action for the recovery of land in the High Court, 325. to Court of Appeal, 325. Digitized by Microsoft® 410 INDEX. AppEiL — contimeed. in action for the recovery of land in High Court — continued. by either party, without any leave reserved, to set aside judgment, 325. grounds of, 325. application, how to he made, 325. application for new trial, 326. when cause heard in London or Middlesex, 326. how to be made, 326. when to he made, 326. when cause heard elsewhere than in London or Middlesex, 326. when to be made, 326. grounds upon which order will be granted, 326. order to show cause, a stay of proceedings, 326. from decisions of judge at chambers, 313. to Common Law Divisions, 313. motion to be made within eight days, 313, 314. notice of motion to be served, 314. in action for the recovery of land in county court, 352. to divisional courts, 352. none, on a question of fact, 357. • how to be made, 353. by special case, 353. time and form of notice of appeal, 363. notice not to operate as stay of execu- tion, 354. security for costs on, by appellant, 354. defendant, 354. case to be presented to judge, 354. procedure on his refusal to settle and sign, 355. form of, 355. by motion, 356. when and where to be made, 356. proceedings upon, 356, 357. notes compiled by judge after trial receivable, 356, 357. xmless cause be shown, order will be made reversing judgment, 357. in action in county court for the recovery of small tenements, 366. when value exceeds 20?., as of right, 366. not exceeding 201., by leave of judge, 366. in proceedings for the recovery of deserted premises, 377. to whom to be made, 377. when successful, record of proceedings a protection to landlord and others, 379. Appeaeanoe to writ in action for the recovery of land, 294. Digitized by Microsoft® INDEX. 411 AlPOETIONMENT OE EbNT, in respect of estate, 148. upon eviction of tenant, 146. from part of premises, 146. where landlord resumes possession under 38 & 39 Vict, u. 92.. 146. upon severance of reversion, 148. in respect of time, 146, 147. upon eviction of tenant, 145. determination of lessor's interest, 147. under 33 & 34 Vict. .^. 35. .147. remedies for recovery of apportioned shares, 148. ■when no apportionment, where lease void as to part of pre- mises, 156. Appeaisement, of distress, who may appraise, 181. appraisers need not be sworn, 181, 182. stamp upon, 181. selling cfistress without, irregular, 188. action for, 188, 189. onlj primd facie evidence of value, 182. costs of, 181. Appeaisees, purchase of distress by, 182. who may be, 181. not now necessary to swear, 181, 182. Appuetenanoes, signification of word, 60. what will pass under term, 60. Abohbishops, leases by, 28, 29, 31. Aeeeab, when rent is in, 139, 156. Aeeeaes op Kent, what and when recoverable, 148, 149. Statute of Limitations as to, 149. effect of 37 & 38 Vict. u. 57. . 149. remedy for, 149. landlord's right in case of execution against tenant, 149, 150. AETipioiii Geasses may be claimed as emblements, 225. Assent of executors to a bequest, 36, 37, 259, 260. ASSIGHEE, acceptance of, as tenant by lessor, 258. effect of, 258. of lease, covenants by, 257. implied promise of, to indemnify original lessee, 257. liability of, upon covenants running with the land, 258. in lease, 251, 257. restrictive covenants, by reason of notice, 251. Digitized by Microsoft® 412 INDEX. Assignee — continued. of lease — continued. re-assignment by, effect of, 258. of part only, effect of, 259. right of action on covenants running with the land, 269. of reversion, when may maintain action for use and occupa- tion, 152. distress by, 156. of equity of redemption, distress by, 159. of mortgagor, action for use and occupation by, 152. is bound by tenant's equities, 252. AssienratEHTS, generally, 247. how aflfected by 36 & 37 Vict. c. 66. .247. equitable doctrine of notice, 247, 251. of choses in action, 247. when covenants run with the land, 248. rules as to, 249, 250. when covenants run with the reversion, 248. effect of 32 Hen. 8, u. 34. .248. statute only applies to leases under seal, 248. and to covenants running with land, 248. in case of leases not under seal, 248. covenants as to incorporeal hereditaments, 250. fixtures, 250. how divisible, 250. binding by reason of notice, 250, 251. of reversion by landlord, 251. must be by deed, 251. may be absolute, 251. by way of mortgage, 251. attornment, 252. effect of 4 Anne, c. 16, s. 9. .252. notice to tenant of, 252. assignee bound by tenant's equities, 252. may sue for rent and breaches, 252. conditions formerly not apportionable, 252. effect of 22 & 23 Vict. c. 35. .253. effect of, on right to distrain, 156. of interest or term by tenant, 253. distinction between, and underlease, 20, 253. how restrained by covenants against, 253. must be by deed, 256. pass the legal estate, 256. what will pass a term, 257. covenants by assignee, 257. liabilities after assignment of tenant, 258. assignee, 258. of leaseholds not affected by 27 EUz. o. 4. .259. by operation of law, 259. by death, 259, 260. effect of 40 & 41 Vict. o. 34. .261. Digitized by Microsoft® INDEX. 413 Assignments — continued. by operation of law — contimied. by bankruptcy or liquidation by arrangement, 262 — 265. by sale of lease tmder execution, 269. by marriage of female lessee not entitled for separate use, 259. contract to procure, is within Statute of Trauds, 77. Assigns, eflect of naming, in covenants, 249. covenants which run with land, though assigns not named, 249. only when assigns are named, 249, 250. not bound by collateral covenants, 250. AssuBANOB, further, covenants for, run with the land, 249. Attestation, of leases by deed, 71. to trustees for charitable uses, 46. AiroTioNEEB, goods in hands of, for sale, whether distrainable, 164, 165. AuTEE Vie, leases by tenants ^!(r mitre vie, 17, 18. AvorDAuoE OE Lease, of tenant in tail, by issue in taU, 12, 14. for life, by reversioner, 15. under powers, by remainderman or reversioner, 16, 17. by infants, 39. of married woman, 40 — 42. of lunatics, 42. of persons under duress, 43. of executors and administrators, 36, 37. Away- GOING Ceops, what are, 227. right to, 227. iudependent of obligations as to cultivation, 230, 231. customs as to, 227 — 233. rules of law as to, 227, 228. principle of, 228, 230. and leases construed together, 228. unless inconsistent, 228. instances of application of, 228 — 231. regulate rate of payment for, 230. removal of, by off-going tenant without right, 231. who may maintain action for, 231. consumption of, upon the land, 227, 229. effect of leaving, on the premises, 160. AwAT-GOiNG Rights, when coupled with right to possession, 231. who liable to outgoing tenant in respect of, 232. Digitized by Microsoft® 414 INDEX. Bah, in an action for the recovery of land, 274, 275. under 15 & 16 Vict. c. 76, s. 213. .274. notice to find, 277. how to be signed, 277. proceedings in chambers to compel defendant to find, 277. affidavit in support of, 277. Bailiff, leases by, 35. distress by, 174, 175. how authorized, 175. ratification of by landlord, 175. distraining, to give copy of charges to tenant, 184. liability for neglect of, 184. may not act as an appraiser, 181. tender of rent to, 186, 187. farm, his authority to let, 35. of county court, when summons in ejectment to be delivered tO; 333. service of summons by, where violence threatened, 336. notice of doubtful service by, 336. endorsement of service by, 336. proof of service by, 337. hability of, for false endorsement, 337. to give possession of small tenements, 362. Banketjptot, of tenant, 161, 230, 262. landlord's remedy for rent upon, 161, 162. distress after commencement of, how limited, 161. where trustee in. possession does not dis- claim, 162. vests bankrupt's property in trustee, 35, 262. trustee in, title of, how evidenced, 262. power of, to sell or assign, 263. bound by provisions of lease, 230. entitled to ofE-going crop, 230. may disclaim onerous property, 199, 263. disclaimer by, 199, 263. operates as a surrender, 263. as from date of order of adju- . dication, 263, 264. • how executed, 263. time within which must be made, 263. may be extended by court, 263. being executedin pursuance of order, no appeal against, 263. Digitized by Microsoft® INDEX. 415 Bahxeuptct? — con t inuei. trustee in, disclaimer by, where bankrupt assignee of lease, 264. eflEeet of, 264. effect of on rights of under-lessee, 264. remedy of persona injured by, 265. liability of, on neglect to disclaim, 264. after fischarge, cannot be ordered to pay rent, 264. Baen, when not a fixture, 216. Beasts op the Plottgh, conditionally privileged from distress, 169. does not include cart colts and steers, unbroken, 169. Bebe, covenant for right to supply by brewer, 127. when cannot be enforced, 127. Bequest, of leaseholds, executors' assent to, 36, 37, 259, 260. may be given before probate, 260. liability of legatee after, 260. not breach of covenant not to assign, 254. Brrx OF Exohauoe, payment of rent by, 141. not a merger of original claim, 141. expressing terms of agreement, stamp on, 95. Bishops, leases by, 27 — 32. Bond, rent and performance of lessee's covenants secured by, 74. payment of rent by, 141. effect of, 141. in action of replevin, 192, 193. how conditioned, 192. execution of, 192. form of, 193. in an action of ejectment, 274, 275, 277. BOEDEE OF Box, not removable by private tenant, 219. waste to remove, by outgoiag tenant, 121. BoEOTJGH Kates, are payable by tenant, in absence of contrary agreement, 132. Botes, necessaet, what are, 121. when timber may be cut for, 121. Digitized by Microsoft® 416 INDEX. BOUITDAEIES, tenant's duty to preserve, 116. upon failure of, landlord's remedy, 116. encroachments, presumption as to, 116. action by landlord to ascertain, 116. Beeaoh of Covenant, for quiet enjoyment, 101, 102. to use house as "private dwelling-house only," 126. to insure, 129, 130. to repair, 106—109. to cultivate in a husbandlike-manner, 118. to reside on the premises, 122, 123. not to carry on specific trade, 125, 126. proof of in action for the recovery of land, 269. Beewees' Leases, covenant in, to supply beer, 127. Beokee, distraining, duties of, 184. must give copy of his charges to person levied upon, 184. landlord's liability for neglect of, 184. Bmuinfa oe Eepaieino Leases, by crown, 26. corporations, 27 — 33. municipal, 33. ecclesiastical, 27 — 32. civil, 32. married women, 40 — 42. committees of lunatics, 42, 43. penalty rents in, 94. BniLEiNas, voluntary waste in respect of, 119. erection of new, when waste, 119. not waste, 120. farm buUdings, with consent of landlord, 220, 221. permissive waste in respect of, 121, 122. Business, meaning of word in restrictive covenant, 124. Cancellation of Lease, does not operate as surrender, 196. Caeeetb, are not fixtures, 217. Caeeiaoes at LrvEEY, may be distrained, 166. Caeeiee, goods in possession of, for conveyance, not distrainable, 163. Digitized by Microsoft® INDEX. 417 Caeeots, may be claimed as emblem.eiits, 225. Case. See Speciaii Case. Casks, wlieii privileged from distress, 166. Cattle, ■fften not distrainable, 163, 166. sent to butcher for slaughter, 163. of guest at an inn, 166. of a stranger, 166. distrainable, 166, 172, 173. feeding on common, 172. at agistment, 166. driven off to avoid distress, 172, 173. distress of, not to be used, 177, 178. where to be impounded, 178. not to be driven out of the hundred, 179. supply of food and water to, 179. landlord's liabflity for safe custody of, 177. what constitutes an impounding, 178. sale of, imder, 180. may be demised, 49. Cattle Plagtje Eate, half is payable by landlord, 131. may be deducted from rent, 131. Ceetaintt, as to commencement of lease, 65, 66. duration of lease, 64, 66. amount of rent, 68. requisite in notice to quit, 210. what, required in description of property in ejectment, 287, 288, 331—333. Cestui que Teust, concurrence of, when necessary to lease by trustee, 18, 19. Cesttji auE Vie, death of, determines leases made by tenant pur autre vie, VI ,\i. Chambees, Judges'. See Eecoveet of Land, Action job the. practice at, 320, 321. appeals from decisions at, 313. Chaeitable Uses, leases to trustees for, 46. must be in accordance with Mortmain Acts, 46. how and when, must be executed, 46. attestation of, 46. Charities, leases by trustees of, 33, 34. Chaeitt ComnssiONEES, leases authorized by, 34. E E Digitized by Microsoft® 418 INDEX. Chattels, may be demised, 49. privileged from distress, 162 — 169. absolutely, 162. conditionally, 169. for benefit of trade, 163. otherwise, 166, 167. payments in nature of rent reserved upon personal, 155. no distress for, 155. annexed to freehold, when they remain chattels, 215. Cheque, payment of rent by, 140. CsnraET Glasses not fixtures, 217. Chueptet Pieces, when tenant's fixtures, 221. Chosbs ut Action-, assignment of, 247. how afEeoted by Judicature Acts, 247. Chuech Eates, are personal charges, 133. not included in taxes on the land, 133. CnUEOHWAEDENS AKD OVEESEEES, leases by, 33. to, 48. Civil Coepoeations, leases by, 32. Clandestine Removal. See Feaueulent Eemovai. of goods to avoid distress, 173. Cloveb, capable of being an emblement, 225. Coal, construction of covenants relating to, 123. Collateeal Covenants, what are, 250. do not bind assigns, though named, 250. CoLLE&ES, leases by, 32. COMMENCEHENT OE LeASB, from what periods leases may be made to commence, 64. construction of provisions as to, 64 — 66. certainty as to, 64. from year to year, how ascertainable, 67. CoMMlBSioNEEB oE 'WooiiS AND ToEESTS, leases by, of crown lands vested in, 26. Committees oe Lunatiob, leases by, 42. surrender and renewal of leases by, 45. may be admitted tenants of copyhold, 46. Digitized by Microsoft® INDEX. 419 CoMHON, Eights of, may be demised, 49. Coinioif, Tenants in, estate of, defined, 23. leases by, 23. payment of rent to one of two, 142. after notice, 142. distress by, 159. Commons, leases of, by lords of manors, 24, 25. cattle on, when distrainable, 172. COMPAIIT, good!s of, not distrainable after commencement of winding up, 170, 171. except by leave of the court, 171. landlord's claim for future rent, 171. Compensation, for improvements under Agricultural Holdings Act, 1875, 233—241. in what cases applicable, 233. commencement of Act, 234. application to future tenancies, 234. how operation of Act may be excluded, 234. of first-class, 234. drainage of land, 234. erection or enlargement of buildings, 234, 235. laying down permanent pasture, 235. making osier beds, 235. water meadows, 235. works of irrigation, 235. gardens, 235. roads or bridges, 235. water-courses, 235. ponds, 235. weUs, 235. reservoirs, 235. water-works, 235. fences, 235. planting hops, 235. orchards, 235. reclaiming waste lands, 235. warping land, 235. landlord's consent in writing required, 235. when to be deemed exhausted, 235. measure of compensation for, 235. deductions from, 235, 237. for improvements of second-class, 235. boning land with undissolved bones, 235. chalking land, 235. clay burning, 235. E E 2 Digitized by Microsoft® 420 INDEX. Compensation — cmitinued. for improvementg under Agricultural Holdings Act — contd. of second-class — continued. claying land, 235. liming land, 235. marling land, 235. ■written notice to landlord, 235, 236. when previous consent of landlord required, 236. to be deemed exhausted, 236. measure of compensation for, 236. deduction from, 236, 237. for improvements of third-class, 236. ■when to be deemed exhausted, 236. measure of compensation for, 236. deduction from, 237. effect of tenants taking exhausting crops, 236. exclusion of, in certain cases, 237. to tenant for breaches of covenant, 237. tillages, &c., 227—233. deductions from, 236, 237. evidence as to, 237. for taxes, rates and tithes, 238. rent due or becoming due, 238. landlord's compensation, 238. to landlord for waste, breach of covenant, &c., 238. limitation as to, 238, 239. COMPIJLBOBY Pa'YIiEENTS, for taxes, &c., 130, 131, 144. tenant may deduct from rent, 130, 131, 144, 145. by tenant, of rent to superior landlord to prevent distress, 144. annuity or legacy secured by powers of distress, 145. interest on mortgage due before tenancy, 145. when deductions for, must be made, 145. production of receipt for, by tenant, 145. Condition, how created, 200. ejectment maintainable for breach of, without proviso for re- entry, 200. forfeiture for breach of, 200. strict proof of breach always required, 200. of re-entry, proof of in action for recovery of land, 269. right of, by virtue of condition, 272. apportionment of on severance of the reversion, 252, 253. by 22 & 23 Vict. c. 35.. 253. not to assign, 253, 254. how broken, 254. none implied as to state of premises on a letting of real estate, 100. Digitized by Microsoft® INDEX. 421 Condition — continued. ttat furnished houses or lodgings are fit for habitation, 100, 101. breach of, 100, 101. tenant's remedies for, 101. precedent to the recovery of rent, 136. CONFTRWATION, of leases by tenants in tail, 14, 15. tenants for bfe, 15. under powers, 17. by ecclesiastical corporations sole, 27 — 30. by infants, 39, 40. effect of Infants' Relief Act upon, 39, 40. of wife's freeholds not in pursuance of statutes, 41. Consent, of landlord to erection of farm buildings or machinery, 219, 220. effect of 14 & 15 Vict. o. 25 . .219, 220. 38 & 39 Vict. 0. 92.. 220, 221. CONSEBTATOET, when not removable by tenant, 219. removable as a trade fixture, 219. Constable, assistance of, in cases of fraudulent removal, 173. CONSTEUCTION, of powers of leasing, 17. terms of description, 57 — 59. in exceptions and reservations, 62 — 64. covenants to repair, 106. pay taxes, 135. against assignments, 253, 254. in restraint of trade, 85, 124 — 127. for quiet enjoyment, 101 — 104. relating to working of mines, 123, 124. trading with particular brewer, 127. to insure, 129. generally, 69, 70, 125, 126. obligation to farm in accordance with custom, 114, 117. exceptions and reservations, 61 — 64. the habendum, 64. reddendum, 68. provisoes for re-entry, 200, 201. of informal leases, 59. Acts of Parliament, 236. tenant rights as to away-going crops, &o., 227 — 233. foldage, 228. manure, 228—232. fallowing, 228. tOlage, 228, 233. Digitized by Microsoft® 422 INDEX. OONSTEUOTION — continued. of tenant rights as to hay, 229, 232. stra-w, 229, 230. clover, 229. under the Agricultural Holdings Act, 23 3 — 24 1 . CoKSTEUCTiYE OooTTPATiON, what may be, 151, 293. CoNTnnJiNG Beeach of Covenant to insure, 130. CONTEAOT, in writing, evidence of oral agreement collateral to, 90, 91. power of distress may be given by, 154. CoNViOT, leases by and to administrators of, 43, 45. CO-PAEOENEES, estate of, defined, 24. leases by, 24. distress by one of several, 159. CoPYHOLDEES, leases by, 25. Copyholds, leases of, 16, 24, 25. on escheat, surrender or forfeiture, 24. reservations in, 24. by custom, 24, 25. COBN, distrainable, 169, 170. where to be impounded, 169, 170. when to be sold, 169, 170, 182. may be claimed as an emblement, 225. severed, removable by outgoing tenant, 227. to be consumed on land, custom as to, 227. at miUer's to be ground, not distrainable, 163. COEPOEATIONS, leases by, 27, 33. must be by deed, 27. parol, effect of, 27. occupation under, effect of, 27. payment of rent under, effect of, 7. specific performance of, after part performance, 27. ecclesiastical and eleemosynary, leases by, 27 — 32. confirmation of, 29, 30. enabling, disabling and restraining acts, 28 — 32. leases by, not in pursuance of statutes, 29. renewal of, 29, 30. civil, leases by, 32. municipal, leases by, 33. the crown, leases by, 26. action for use and occupation by, 153. against, 153 Digitized by Microsoft® INDEX. 423 CoEPOEATiONS — con t imwd. leases to, 45, 46. eervioe upon, of writ in ejectment, 291, 292. affidaidt of, 303. of county court summons in ejectment, 335. of notice to quit, 213. description of, in ■writ of ejectment, 287. ofScer of, may be named to make discovery, 312. CoBroEEAi; Heeeeitaments, Leases of, exceeding^ three years, must be by deed, 51. for three years or less, may be by parol, 51, 52. demise of, necessary to support a distress, 154, 155. CoEEESPONDENCE, agreement for lease may be by, 78, 79. CoBBODiES may be demised, 49. Costs, of distress, 183. under 20?., 183. over 20?., 184. upon growing grass crops, 184. broker must give copy of, to person suffering dis- tress, 184. tenant's remedy for excessive, 183, 184. of replevin, security to cover, 192, 193. under Agricultural Holdings Act, 240, 241. of award, 240. proceedings in county courts, 241. in action for the recovery of land, bail for, 274, 275. of unnecessary pleadiags, 305. of improper interrogatories, 310. of inspection of documents, 312. in county courts, 331, 332, 348, 351, 352, 354, 366. COUNTEECLAIM, need not equal plaintiff's claim, 316. how set up, 316. how excluded, 317. how stated, 317. COITBrrEEPAJET OP Lease, rule when lease differs from, 73. when rule does not apply, 73, 74. expenses of, by whom borne, 76. execution of in presence of lessor cannot be insisted upon, 76. when there is none, obligation of tenant to produce lease to landlord, 76. . . , j i production of, raises presmnption that ongmal was duly stamped, 97. proof of, in action for the recovery of land, 269. CoTTNTEY, custom of, defined, 114. Couirre CoTjET, action of replevin in, 193. ,,.,„„ registrar empowered to grant replevms, 1B2. Digitized by Microsoft® 424 INDEX. County Coubt- aotiou for irregular, excessive, or illegal distress in, 191. for the recovery of land in, 327 — 357 : See Keooveet of Lamd, Action foe the — Proceed- ings m the County Court. small tenements in, 357: &e Reoo- VEEY of Small Tenements, Action in the County Court for the. court fees, 366—370. proceedings in, under Agricultural Holdings Act, 239 — 241 : See s. -0. AGEioulTnEAi Holdinqs Act, 1875. to recover double value, 245. rent, 246. CotJNTY Rates, wten payable by tenant, 132. included in "parochial taxes and assessments," 133. Coubse of Husbanbey, custom of the country as to, 114. proof of, 114, 115. Covenants, defined, 69. must be under seal, 69, 239. how construed, generally, 69, 70, 125 — 127. may be express, 69, 70. imphed, 69, 70. usual, what are, 70, 82 — 84. to pay rent, 70, 83. taxes, 70, 83, 132, 133. construction of, 132 — 135. tithe rent-charge, 133. to keep and deliver up in repair, 70, 83, 84, 106. to cultivate according to good husbandry, 70, 84. to permit landlord to enter and view, 70, 84. for quiet enjoyment, 70, 98. implied in every letting, 98. when broken, 103. against alienation, 84, 253. in restraint of trade, 85, 124. for good title, 98, 99. where lawful evictions included in terms of, 101. to repair (express), 106. how construed, 106. controlled, 106, 107. courts will not decree specific performance of, 113. relieve against forfeiture for breach of , 1 1 3 . farming, enforced by injunction, 118. compensation for breach of, under 38 & 39 Vict, c. 92.. 118. to reside on the premises, 122. how broken, 123. to carry on a specific trade, 123. Digitized by Microsoft® INDEX. 425 Covenants — continued. to carry on a specific trade — continued. ho"w far bind leasees of public-houses, 123. to work mines, 123. not to carry on other than a certain trade, what it amounts to, 123. a "trade," a "business," meaning of, 124. an "offensive" trade, meaning of, 124, 125. against "nuisances," 125. to use house as " private dwelling-house only," 126. how broken, 126. broken by carrying on any branch of prohibited trade, 126. how limited, 127. for right to supply beer, 127. when can be enforced, 127. not to carry on trades without lessor's licence, 127. restrictive, loss of right to enforce, 127, 128. by acquiescence in breaches, 127, 128. by landlord, 128. how far binding, 128. to insure, 129. breach of, 129. rehef against forfeiture for, 130. continuing, 130. to pay taxes, by landlord, construction of, 135. " all taxes," to what it extends, 132, 133. " all parliamentary taxes," what included in, 132, 133. "taxes on the land," what included in, 133. " taxes and assessments " does not include tithes, 133. " charges, " what included in, 133. "outgoings," what included in, 133. "rates," 133. " all duties," what iacluded in, 134. construction of, 69, 70, 124—127. where general words follow specific emuneration, 125. meaning of word at date of the covenant governs, 125. when they run, with the land, 248, 249. when "assigns " are not named, 249. named, 249, 250. collateral, not binding on assigns, though assigns named, 250. as to incorporeal hereditaments and fixtures, 250. are divisible, 250. restrictive, when binding by reason of notice, 250, 251. running with the reversion, 248. breach of, proof of, in action for the recovery of land, 269, 270. Ceops, what are emblements, 225. growing, when distrainable, 169, 170. after seizure and sale under an execution, 167. can be removed, 177. to be sold, 170, 182. where to be impounded, 169, 170, 177, 178. Digitized by Microsoft® 426 INDEX. Ceops — continued. growing, selling contrary to 11 Geo. 2, o. 19, s. 8, irregular, 188. away-going, 227 — 233. what are, 227. customs as to, 227 — 233. leaving on the premises, effect of, 160, 161. exhausting, what are, 236, 237. Ceown, all real estates ultimately held of, 1. leases by the, 26. cannot avail itself of plea of infancy to avoid leases, 39. Cultivation, obligationa of tenant in respect of^ 114. to farm in accordance with custom, 114. defined, 114. usually hy his lease, 117. binding on sheriff upon execution, 117. assignee of bankrupt, 117, 118. under bill of sale, 117, 118. purchaser, 117, 118. . apply to ordinary sale by tenant, 118. implied covenant for, 70. covenants to cultivate according to good husbandry, 84. nm with the land, 249. construction of, 114 — 117. CuBTEST, Tenaut BY, leascs by, 18. Custody op Law, goods in, not distrainable, 167. exception to rule, 167. Custody of Lease, during continuance of demise, 76. after expiration of term, 76. when no counterpart, obligation of tenant, 76. Custom, of country, defined, 114, 228. obligation to farm in accordance with, 114. meaning of, 114. proof of, 114, 115. must be certain and reasonable, 115. reasonableness of , amatter of lawforthe court, 115. not of fact for jury, 115. attaches unless expressly excluded, 115, 228. is excluded by inconsistent stipulations, 115, 228. when evidence of, to explain lease, admissible, 115. as to timber trees, 120, 121. away-going crops, 227 — 231. compensation for tillage, 227. Digitized by Microsoft® INDEX. 427 Custom — continued. of oountry, as to consumption of crops, &c., on premises, 227. allo-wances to outgoing tenant, principle of, 228, 230, 231. rules of law as to, 228. construed with the lease, 228. unless inconsistent, 228. application of rule, 228 — 231. regulates payment to outgoing tenant, 230. removal of crops contrary to, injunction against, 233. ■ effect of, on right to remove fixtures, 222. 3D AIWA OE IFeasant, property taken, not distrainable, 167. Damages, in action for irregular distress, 189. excessive distress, 190. illegal distress, 190, 191. selling distress too soon, 182.! rescue and pound breach, 180. premature sale of growing crops, 170. upon breach of covenant for quiet enjoyment, 101. to repair. 111 — 114. for waste, 122. the recovery of land, 274, 275, 277, 279, 280, 283. liquidated, distinction between, and penalties, 143, 144. may be recovered by distress, 143. cannot be waived, 144. Date, not necessary to a lease, 52, 53. deeds take effect from delivery, 52, 65. parol lettings commence from entry, 65, 66. leases may commence from past, present or future, 64. construction of the habendum in leases, 64, 65. impossible, effect of insertion of, 52, 53, 65. uncertain, effect of insertion of, 66. Dat-time, distress must be made in the, 160. Dean and Chaptee, leases by, 27. Dean !Foeest, leases of Crown property in, 27. Death, of lessee, 259. effect of, 259. liability of his executor or administrator, 259 — 262. effect of 22 & 23 Vict. o. 35, upon, 262. Digitized by Microsoft® 428 INDEX. Deductions, by tenant from rent, 130 — 132, 145. of taxes, 130, 131. property tax, 130, 145. land tax, 131, 145. sewers' rate, 131, 145. half cattle-plague rate, 131. poor rates, 131. tithe rent-charge, 131, 145. agreement as to, 131, 132. remedy by tenant for, 135, 136. of payments made to superior landlord, 144. to avoid distress, 144. of an annuity or legacy secured by power of distress, 145. of interest due on mortgage, 145. when must be made, 145. receipt for, must be produced, 145. Deed, what leases must be by, 51. old, presumed to have been properly stamped, 96. execution of leases by, 71. attestation of, 46, 71- delivery of, mode of, 71. as escrow, 71. indorsements upon, 73. presumption in favour of, 96. when surrender must be by, 196. assignments of reversion, must be by, 251. terms must be by, 256. Demxnd, of rent, in order to create a forfeiture, 139, 203, 271. when a waiver of forfeiture, 204, 205. of notice to quit, 213. writ in ejectment good in place of, 203. of possession, 276. where term has expired, 276. how to be made, 276. not necessary to eject tenant at sufEerance, 2. determines tenancy at will, 4. before action for double value, 243. how to be made, 244. when may be made, 244. DEMieE, who may, 10 — 43. effect of joint, by tenants in common, 23, 24. subject-matter of, 49. requisites and nature of the, 50. usual words of, 53. Digitized by Microsoft® INDEX. 429 Demise — continued. coTenant for quiet enjoyment, when implied in, 98. good title, -whetlier implied in, 98, 99. effect of word, 99. of incorporeal hereditaments, 50, 51. right of distress is dependent upon an actual, 154. stamp on instrument of, 95. See Appendix (A). Desobiption, of property demised, how stated, 55. in agreement for a lease, 78. use of "et cetera" to be avoided, 78. of "the property," 78. what included in, 55, 56. when parol evidence admitted to explain, 55, 56. construction of, 56 — 59. "at or within" a certain place, 56. where a plan is used, 68. by admeasurement followed by words "more or less," &c., 58. what included in, 58. meaning of "farm" in, 58. of "messuage" in, 58. of "house" in, 59. of "mill" in, 59. of "land" in, 59. of "water" in, 59. of "appurtenances" in, 60. when general words are rehed upon in, 59. in exceptions, 62. rule of construction as to, 62. in notice to quit, 210. in writ in action for the recovery of land, 287, 288. meaning of "tenements" in, 287. in summons in county court action of ejectment, 332, 333. Beseeted Premises, proceedings before justices for recovery of, 376 — 379. in the metropolis, 377, 378. in the City of London, 378. appeal in, 377. what are, 378. entry of landlord upon, 197, 198. when operates as a surrender, 197- when does not operate as a surrender, 198. Deteemination of Tenancy, distress after, 154, 155. at sufferance, 2. at will, 3, 4. from year to year, 4, 205. for optional term, 195. Digitized by Microsoft® 430 INDEX. Deteemination op Tenawott — continued. for f)art8 of a year, 9. modes of, 195—214. by efBuxion of time, 195. landlord's right to possesBion on, 267. by surrender, 195. express, 195. implied, 195. by forfeiture, 200—206. by disclaimer, 199, 263. by notice to quit, 206, 213, 214. by demand of possession, 4. by merger, 195. rights and liabilities of the parties upon, 215 — 246. as to flitures, 215 — 224. as to emblements, 224 — 227. as to away-going crops, 227 — 233. under Agricultural Holdings Act, 233 — 241. where tenant holds over, 241 — 246. Diet, furnished house or lodgings rendered uninhabitable by, 101. may be thrown up by tenant, 101. Disability, persona under, leases by, 39. leases to, 43, 44. DiSABUNQ STATUTBa, effect of, on leases, 28, 29. DlSOLAntEE, by tenant, incurs forfeiture, 199. verbal, 199. will not work a forfeiture, 199. written, 199. what amounts to, 199, 200. waiver of, by subsequent distress, 200. by trustee in bankruptcy, of onerous lease, 199, 263. operates as a surrender, 263. where bankrupt is mere assignee, 264. DisooNTnroAiicE or Aotion, in the High Court, 318. by plaintiff by written notice, 318. as to the whole or any part of claim, 318. no defence to any subsequent aotion, 318. when may be taken without leave, 318. when leave necessary, 318. record may be withdrawn by either party by consent, 318. in the County Court, 338. against all or any of the defendants, 338. Digitized by Microsoft® INDEX. 431 DiaooNTiNtrANOE OP Action — continued. in the County Oovxt— continued. notice of, to registrar and to parties, 338. costs after, 338, 339. confession by defendant, 339. DiscoYEET AND INSPECTION. See Eeooveey ov Land, Action poe THE. interrogatories, 306, 307. discovery of documents, 310. inspection of documents, 311. Distance, in covenants, how measured, 127. DisTiLLEEY Tanks, not fixtures, 217. Disteess eoe Kent, requisites to common law right of, 154. an actual demise, 154. of corporeal hereditaments, 154, 155. a rent certain, 15.5. in arrear, 156. a reversion in distrainor, 21, 156. right of, may be given by contract, 154. is not attached to a mere licence, 154. ■when and how it arises, 154, 155. who may distrain, 156. tenant from year to year, 156. in common, 159. assignee of reversion, 156. reversioners, 156, 157. executors and administrators, 157. husband in right of wife, 157. mortgagor, 158, 159. for rent due under lease made after mortgage, 158. before mortgage, 158, 159. mortgagee, 157, 158. for rent due under lease made before mortgage, 157, 158. after mortgage, 158. assignee of equity of redemption, 159. joint tenants, 159. coparceners, 159. receivers, 159, 160. what may be distrained, 162. general rule as to, 162. exceptions to rule, 162, 163. growing crops, 167, 169. that have been taken in execution, 167. distrainable by statute, 169. com, straw, hay, &c., 169. option of landlord to resort to, 170. what may not be distrained, 162, 163. chattels absolutely privileged, 1C2. Digitized by Microsoft® 432 INDEX. DI3TKESS FOE Rent — continued. what may not be distrained — continued. fixtures, 162. annexed to freehold, 162. removable by tenant, 162, 163. may be taken under an execution, 163. including iu notice of distress, effect of, 163. chattels privileged for benefit of trade, 163. general rule as to, 163. when iaappUcable, 165, 167. horse at smith's to be shod, 163. com at miller's to be ground, 163. yam at weaver's for manufacture, 163. cattle at butcher's for slaughter, 163. goods at carrier's for carriage, 163. for sale at factor's, 163. at commission agent's, 163. at auctioneer's, 163, 165. pledged at pawnbroker's, 163. warehoused at wharfinger's, 163. granary keeper's, 163. and cattle of guest at an inn, 166. furniture at depository, 163. casks at cooper's for repair, 166. chattels conditionally privileged, 169. beasts of plough, 169. sheep, 169. instruments of husbandry, 169. tools and implements of trade, 169. when landlord may resort to, 169. chattels otherwise privileged, 166. cattle of a stranger, 166. in what cases, 166. on way to market, 166. perishable articles, 166, 167. butchers' meat, 166, 167 animals ferae naturae, 167. things in actual use, 167. horse being ridden, 167. tools being used, 167. goods in custody of the law, 167. exception, 167. cattle taken damage feasant, 167. goods taken in execution, 167. of a lodger, 167, 168. an under-tenant may be "a lodger," 168. of an ambassador, 168. of company being wound-up, 170, 171. as to rent due before winding-up, 171. after, 171. power of Court to restrain, how limited, 171. railway rolling stock, 168, 1G9. Digitized by Microsoft® INDEX. 433 DiSTEESS rOE Rent — continued. when may be made, 160. after determination of tenancy, 160. in the day time, 160. under 8 Anne, o. 14 . . 160. while landlord's interest and tenant's possession continue, 160. where tenant retains possession of part only, 160. tenancy prolonged, 160, 161. by custom of country, 160. by agreement, 160. in cases of fraudulent removal, 173. for arrears, 149, 160, 161. in case of tenant's bankruptcy, 161. 32 & 33 Vict. 0. 71, s. 34, how construed, 161, 162. where trustee retains possession, 162. where may be made, 172. by agreement, 172. general rule as to, 172. exceptions to rule, 172. cattle on commons, 172. driven oflE to elude distress, 172, 173. goods fraudulently removed, 173. how may be made, 174, 175. by landlord personally, 174, 175. by agent or bailifE, 174, 175. written authority unnecessary, 175. ratification by landlord sufficient, 175. entry, 175. outer door may be opened by usual mode, 175. not be broken open, 175. except in cases of fraudulent removal, 175. expulsion of broker, 175. inner door may be broken open, 175. may be made through open window, 175. by climbing over fence, 175. seizure, 176. how effected, 176. what is sufficient, 176. inventory should be made after, 176. notice of distress, 176. service of, 176. form of, 176. must be in writing, 176. want of, does not invalidate distress, 177. makes sale irregular, 177. disposal of, between distress and sale, 177. before appraisement and sale, 177. goods must be safely kept, 177. may generally be impounded on or off the premises, 177. E. & L. F F Digitized by Microsoft® 434 IKDEX. Distress poe Rent — continued. disposal of, &o. — continued. com or hay, -when may not be removed, 169, 177. growing crops, 177. impounding, 177. cattle, where to be impounded, 177. in povmd overt, 177. in open field, 178. may not be driven out of the hundred, 179. furniture and goods must be sheltered, 177. landlord liable for suificienoy of pound, 177. may not use distress, 177, 178. milk nuloh cows, 178. abuse of distress by, 178. impounding on premises, 178. how effected, 178. what constitutes, 178. liability of person impounding, 179. for food and water of animals, 179. effect of, 180. notice to be given, 176, 180. appraisement, 181. who may appraise, 181. stamp upon, 181. i& prima facie evidence of value, 182. costs of, 181. sale, 181, 182. where may take place, 181. when may take place, 181, 182. computation of time, 182. search in comity court for replevy before, 182. of growing crops, 169, 170. must be for best price, 118, 182. costs of, 183. where rent distrained for does not exceed 20Z., 183. does exceed 20/. , 184. upon growing grass crops, 184. broker must give copy of charges to person levied upon, 184. tenant's remedy for excessive, 183, 184. overplus, what to be done with, 184, 185. when proceeds of sale insufficient, 185. action by landlord for balance of rent, 185. second distress, when may be taken, 185. where valueof cattledistrainedinsufficient, 185. first distress iasufiicient, 185. goods of uncertain or imaginary value, 185. landlord prevented from realizing, 185. voluntarily abandons first dis- tress, 185, 186. cattle die in the pound by act of God, 185. Digitized by Microsoft® INDEX. 435 Distress fob Kent — continued. upon goods fraudulently removed to avoid, 173. when doors may be broken open to seize, 173. privileged if sold to bond fide purchaser, 173. act relating to, 172, 173. only applies to removal on or after rent day, 173. to tenant's own goods, 173. where no other sufficient distress, 173. removal is fraudulent, 174. landlord retains reversion, 174. abandonment of, 185, 186. what amounts to, 186. tender of rent, eflect of, before seizure, 186. after distress, before impounding, 186. impounding, 186. to whom may be made, 186, 187. seUing after, effect of, 188. irregular, excessive or illegal, tenant's remedies for, 188 — ^194. action for, in county court, 191. irregular, when it is, 188. selling without notice, 188. within time allowed, 188. growing crops before gathered, 170, 188. without appraisement, 188. for less than best price, 188. not leaving overplus in hands of sheriff or under-sheriff, 188. effect of, at common law, 188. 11 Geo. 2, c. 19.. 188, 189. action for, when maintainable, 189. excessive, when it is, 189. is question for a jury, 189. landlord's liability for, 189, 190. damages for, 190. illegal, when it is, 190. distress by a stranger, 190. by landlord after parting with reversion, 190. when no rent is due, 190. after tender, 190. former distress for same rent, 190. distraining off the premises, 190. at improper time, 190. by breaking open outer door, 190. things privileged from, 190. distrainer is trespasser ab initio, 190, 191. who responsible for, 191. measure of damages for, 190, 191. wrongful, remedies for, within Metropolitan Police District, 193, 194. Ditches, ownership of, 116, 117. F r 2 Digitized by Microsoft® 436 IND15X. DOOE, outer, cannot be broken open to distrain, 175. may be opened by ordinary means, 175. broken open to distrain goods fraudulently removed, 173. where broker has been expelled, 175. inner, ■when may be broken open to distrain, 175. DoTTBiE Rent, action for, 245. by U Geo. 2, c. 19, b. 18. .245, 246. ■when act applies, 245, 246. against tenant holding over, after gi^ving notice, 245, 246. recoverable by distress, 246. action in the High Court, 246. county court, not over 50Z., 246. DO^CTBLE Valtje, action for, 243. against tenant holding over, 243, 244. act (4 Geo. 2, c. 28) to be construed strictly, 244. ■when to be brought, 245. by whom to be brought, 245. against ■whom to be brought, 244. lies only ■where holding over is " ■wilful," 244. after demand and notice in ■writing, 244. ho^w estimated, 244, 245. no distress for, 245. recoverable after action of ejectment, 245. in High Court of Justice, 245. coimty court, not exceeding 501., 245. right to, ho^w ■waived, 245. DowEE, lease by tenant in, 18. Duchy oe Coentvaxl, leases of lands belonging to, 27. Duchy oe Lauoastee, leases of lands belonging to, 27. DuEATiou OE Teem, certainty as to, 64, 66. method of estimating, 64. of a lease to t^wo for years if they so long live, 67. for years, no term mentioned, 67. for one year and so on from year to year, C7. ■with option to determine, 67, 68. by deed ■where no term mentioned, 65. parol ■where no term mentioned, 65, 66. DUEESS, leases by persons under, 43. to persons under, 45. " Duties," covenant to pay all, ■what included in, 134. Digitized by Microsoft® INDEX. 437 Easements, leases of, 31, 50, 51, 63. by ecclesiastical corporations, 31. must te by deed, 50, 51, 63. implied, oyer adjoining property retained, 60. ■what pass without mention, 60. how restricted in duration, 60. reservations or exceptions of, are in fact re-grants, 63. EOOLESIASTIOAI COEPOEATIONS, leases by, 27—32, 268. to, 45—47. EcoLESiASTios, leases to, 47. Eduoationai. Pueposes, leases for the promotion of, 46, 47. Effitjxion of Time, determination of tenancy by, 195. needs no notice to quit, 195. landlord's right to possession on, 267. Ejectment. See Eecoveey of Land, Action fob the. action of, in High Court, 267—327. county court, 327—357. for forfeiture, 200. bars landlord's right to distrain, 155. EiEonoN, by trustee in bankruptcy to disclaim lease, 263. time for, how limited, 263. Emblements, right to, on determination of uncertain tenancies, 224. of tenant at will, 224. for Kfe, 224. lessee for years of tenant for life, 224. attaches to estate determiaable, 224, 223. by act of landlord, 224, 225. death, 225. operation of law, 225. where estate determined by act of tenant, 225. tenant surrenders, 225. during widowhood marries, 225. estate determined by entry for forfeiture, 225. of underlessee of tenant who has determined own estate, 225. includes right to enter to take, 225, 226. how affected by 14 & 15 Vict. o. 25 . . 226. as to tenancies at rack rent, 226. where statute applies, 227. Digitized by Microsoft® 438 INDEX. Emblements — continued. •what are, 225. crops produced by industry and manurance, 225. com, 225. turnips, 225. carrots, 225. potatoes, 225. hemp, 225. flax, 225. saffron, &c., 225. hops, 225. artificial gxasses, as clover, 225. what are not, 225. things requiring more than a year to mature, 225. growing grass, 225. though sown from seed, 225. ready for mowing, 225. can only be taken when tenancy depends upon uncertainty, 227. unless by express agreement, 227. or custom of country, 227. Enablino, disabling aud bbsteaininu Stattttes, leases under, 12, 28—32. Endowment oj See, leases of lands assigned as, 31. Ekeolment, of leases by tenant in tail, 13. when necessary, 13. Entey, by tenant, effect of, in creatiug tenancy at wUl, 3. under an agreement for a purchase, 3, 7. lease, 3, 6. a void lease, effect of, 4, 6. in case of a parol letting, effect of, 65, 66. under lease not perfected by execution, 72, 73. effect of, by estoppel, 11. to take emblements, 225, 226. by landlord, to repair, 106. to distrain, 175. in cases of fraudulent removal, 173, 174. when outer door may be broken open, 173. inner door may be broken open, 176. on determination of tenancy, 267. where premises are deserted, 198. use and occupation wiU not lie before, 151. by legatee, after executor's assent to bequest, 259. Digitized by Microsoft® IMDEX. 439 Eeeoe in Notice to quit, effect of, 210. ESOEOTV, what is, 71. delivery of deed as, 71, 72. Estate Aoent, payment or tender of rent to, 141. Estate, Reai, all interests in, held by some tenure, 1. Estoppel, leases by, 11. where lessor has no estate, 11. how may become leases in interest, 11, 12. an, is not confined to parties to the lease,' 12. must be reciprocal, 12. leases by infants and married women exempt from, 12. crown not bound by, 12. want of reversion in distrainer when supplied by, 156. ESTOTEES, when tenant entitled to reasonable, 116. may be demised, 49. Eviction, of tenant by landlord, what constitutes, U5, 146. suspension of rent on, 145. of under-tenant, effect of, 145. by title paramount, 102, 146. apportionment of rent upon, 146. by act of law, 146. by railway company under powers, 146. from part only of property, 146. apportionment of rent upon, 146. how measured, 146, 147. lawful, when included in terms of covenant, 101, 102. covenant for quiet enjoyment Kmited to, 101. suspension of rent during-, 104, 145, 146. Evidence, of oral collateral agreement when admissible, 90, 91. unstamped instruments, how received in, 92, 93. Exception, in demise, what, 61. how distinguished from reservation, 61. essentials of, 61. informal, when supported, 63. construction of, 62. of woods, 62. timber, 62. mines and minerals, 62. easements, what it amounts to, 63. must be under seal, 63, 64. Digitized by Microsoft® 440 INDEX. ExOBSSrVE DiSTEESS, what is, 189. landlord's liability for, 189, 190. damages recoverable for, 190. ExOHANQB, Bill of, payment of rent by, 141. EXEOTJTION, against tenant, landlord's right to rent upon, 149, 150. where letting for less than a year, 150. duty of sheriff upon, 150. under warrant of county court, right to rent upon, 150. growing crops seized under, liable to distress for subsequent rent, 167. stipulations as to cultivation, &c. in leases binding upon sheriff upon, 117. Execution oe Cottnteepaet oe Lease, in presence of lessor or agent cannot be insisted on by lessor, 76. ExBOITTION OE LEASES, by deed, 71. under powers, 17. by attorney, 72. non-execution, by lessor, effect of, 72. when there are two or more lessors, 72. lessee, effect of, 72, 73. alterations in lease after execution, effect of, 73. ExEOUTOB de son tort, liability of, on covenants in a lease, 262. EXECUTOBS, leases by, 36. one of several, good, 36, 260. when bad against specific legatees, 36, 37. voidable, when, 37. who have refused to administer, bad, 37. of lessor, when they may distrain, 157. what property vests in, 259. derive title from the wiU itself, 259. right of, to double value, 243, 244. of lessee, generally cannot waive a term of years, 261. liability of , for rent accruing due after tenant' s death, 261. breaches of covenant after tenant's death, 261. how discharged, 262. for double rent, 245. protected from personal liability, 22 & 23 Vict. c. 35 . . 262. right of, to emblements, 224. ExHAUSTma Ceops, what are, 236, 237. Digitized by Microsoft® INDEX. 441 Expenses, of lease in absence of stipulation, by whom borne, 76. of counterpart, 76. EspiEATiON 03? Tenakoy. See Deteemination of Tenancy. ExTEiNSio EvTDENOE, when admissible to set up oral collateral agreement, 90, 91. Factoe, goods in hands of, when privileged from distress, 163. Eauowinq, allowances to outgoing tenant for, 228. Faise Demonstbation in description of premises, rule as to, 57. "Faeji," what included in, 58. Faejusq Covenants, how enforced, 118. Faemino Leases, by trustees of settled estates, 18, 19. incumbents, 30. penalty rents in, 94. what are usual covenants in, 84. Feast Days, what are usual, 137. Fee Simple, nature of tenancy, 1, 12. leases by tenant in, 12. Fee Tail, leases by tenant in, 12. Felons. See Convict. Feme Coveet, leases by, 40, 41. ackaowledgment of, 41. tenant in tail, leases by, 13. acknowledgment of, 13. surrender and renewal of leases to and by, 45. Fences, tenant's duty to maintain, 116. right to reasonable estovers to keep up, 116. hability to repair, where no express agreement, 116, 117. landlord's liability to repair as between himself and tenants, 117. Fbe2E Natue^, animals, not distrainable, 167. Fekeies, may be demised, 49. FlEE, liability of tenant for rent, after destruction of premises byj 109, 146. tenant from year to year not bound to rebuild after, 104. Digitized by Microsoft® 442 INDEX. PlEB — continued. accidental, meaning of, 105. tenant's liability in case of, 105. no implied obligation on landlord to rebmld in case of, 105, 106. lessee covenanting generally to repair, must rebuild, 109. insurance office may lay out insurance money in rebuilding, 109. ■what necessary to entitle landlord to have the money so applied, 109. usual proviso relieving tenant from hability in case of, 110. covenant by landlord to rebuild in case of, effect of, 113. Fish, waste may be committed in respect of, 121. FisHEBiES, may be demised, 49. FlSHINO, reservation of right of, 63. lease of right of, 50. Fitness poe pxtepose intended, no implied warranty on lease of real estate, 100. otherwise on lease of furnished houses, 100, 101. FlSTITEES, defined, 215. old iTile as to annexations to freehold, 215. still applicable between mortgagor and mortgagee, 215. relaxation of, 215. when chattels placed by tenant become fixtures, 216. articles attached only by their own weight, 216. generally mere chattels, 216. wooden bams resting on foundation, 216. weighing machines resting in brick-lined holes, 2 1 6 . effect of intention of parties as to, 216. fastened for use as chattels, 216. rule to determine character of, 216. when held not to be fixtures, 217. machinery fastened by screws, 217. distillery tanks, 217. boiling backs and mash tuns, 217- pumps, 217. hydraulic presses, 217. hangings, 217. chimney-glasses, 217. pier glasses, 217. pictru'es, 217. chandehers, 217. seats, 217. carpets, 217. when held to be fixtures, 217. Digitized by Microsoft® INDEX. 443 FiXTUEES — continued. articles fastened for use as chattels — continued. rails nailed to wooden sleepers, 217. fixed so as to become part of fabric, 217, 21S. ■when irremovable by tenant, 217, 218. doors and windows, 218. removable by tenant, 218. trade, 218. test as to removability of, 218. removable, 218. soapboiler's vats, 218. salt pans, 218. baker's ovens, 218. furnaces, 218. coppers in brewhouses, 218. brewing vessels and pipes, 218. engines screwed to planks, 218. boilers lixed in brickwork, 218. fire engines, 218. steam engines, 218. colliery machinery, 218. dutch bams, 218, 219. varnish houses, 219. buildings accessory to removable machinery, 219. greenhouses and hothouses of nui'seryman, &c., 219. pipes of heating apparatus of a greenhouse that was held to be irremovable, 219. trees planted by nurseryman, 219. irremovable, conservatory attached to dwelling-house, 219. greenhouse in a garden with boiler, 219. trees planted by private person, 219. border of box, 219. flowers, 219. agricultural, 219. exception in favour of trade does not extend to, 219. effect of 14 & 15 Vict. c. 25 upon, 219, 220.. right to remove an unfinished erection, 220. 38 & 39 Vict. c. 92 upon, 220, 221. See Ap- PENBIX (B). for ornament or domestic convenience, 221. privilege more limited than that in favour of trade, 221. test of removability, 221. what held removable, 221. bells, 221. cornices, 221. wainscots, 221. bookcases, 221. furniture fixed by holdfasts, screws or naUs, 221. ornamental chimney-pieces, 221. iron backs to chimneys, 221. stoves and grates, 221. Digitized by Microsoft® 444 INDEX. FiXTUEES — continued. for ornament or domestio convenience — continmd. what held remoTatle — continued. pumps slightly attached, 221. cooling coppers, mash tubs, water tubs, and blinds, 222. what held not removable, 222. ordinary fixtures put up to complete house, 222. hearths and chimney-pieces (not ornamental), 222. fire-grates, 222. ladder, 222. crank, 222. bench, 222. right of removal regulated by custom or contract, 222. maybe renounced by tenant, 222. covenant to repair and yield up, 222. surrender at end of term, how construed, 222. time of removal, 222, 223. when right to remove ceases, 223. by mere tenant at sufferance, 223. right of removal after determination of tenancy, 223. where the tenant continues in pos- session under new agreement, 224. entry of landlord, 223. in accordance with terms of lease, 223. by virtue of licence under seal, 223. where tenant mortgages fixtui'es, 223. trustee in liquidation of tenant sells, 223. bankruptcy sells, 223, 224. fixtures disannexed during term, 224. JPiiAs, may be claimed as an emblement, 290. Food, liability to provide, for cattle distrained, 179. right to recover value of, provided for cattle impounded, 179, 180. FOEOIBLE EnTEY, when lawful possession may be acquired by, 267. indictment for, 267. FoEEHAND Rent, what it is, 137. distress for, 137. reservation of last half-year's rent, as in farming leases, 138. FOEPEITUEB, of original lease defeats all underleases, 206. by disclaimer, 199, 200. acts amounting to, 199. Digitized by Microsoft® INDEX. 445 FoBFEiTUEE — continued. under a proviso for re-entry, 200, 201. how construed, 200, 201. for condition broken, 200. breach of negative covenants, 201. assigning without licence, 254, 235. no relief against, 255. non-payment of rent, 203. after demand at common law, 203. service of writ in ejectment, 271, 272. under proviso for re-entry, 203. breach of covenant to insure, 129, 130. makes lease voidable, not void, 204. does not extinguish liability of tenant for prior breaches, 204. waiver of, 204. by acceptance of rent becoming due after forfeiture, 204. action or distress for rent becoming due subsequently, 203. unqualified demand for rent, 204, 205. effect of, confined to breaches actually incurred, 205. relief against, 130, 205. for non-payment of rent, 205. non-repair, 206. breach of covenant to insure, 130, 205. when Court powerless, 130. breaches of covenant for which generally relief will not be granted, 205, 206. ejectment for, 203. bars landlord's right to distrain, 155. of land brought into mortmain, 46. FowLiNO, reservation of right of, 63. Fkajiohises, may be demised, 49. Feaudulent Eemoval, of goods to avoid a distress, 173. what constitutes, 173, 174. liability of persons assisting tenant in, 174. landlord's remedy upon, 173. by distress, 173. when and where may be made, 173. how may be made, 173. gone if landlord have parted with re- version, 174. by action, for double value, 174. before two justices, 174. Freehold, when fixtures aimexed to, 215 — 222. Feuit Tebes, waste by tenant in respect of, 121, Digitized by Microsoft® 446 INDEX. PcBNiSHEB House, lease of, implies condition that it stall be fit for oooupation, 100. rUENISHED LODQINM, agreement to take, not witliin Statute of Frauds, 77. implied condition of fitness on letting of, 100. landlord may distrain for rent of, 155. FUENITtrEE, distrained for rent must be sheltered, 177. sold by auction, does not break covenant to use as a " private dwelling-bouse only, " 126. must, however, belong to the house, 126. FtJBTHEE AssuBAUOE, Covenant for, runs with the laud, 249. Game, leases of right of hunting or shooting, 50. reservation of right of sporting or hunting, 63. must be by deed, 63, 64. for purposes of Game Act, 64. may be by parol in a parol demise, 64. agreement not to destroy, but to preserve, effect of, 64. Glebe Lauds, leases of, 30. Goons, leases of, 49. privileged from distress, when, 162 — 169. absolutely, 162. conditionally, 169. for benefit of trade, 163. otherwise, 166—168. of company being wound up, 170, 171. of an ambassador, 168. of a lodger, 167. fraudulently removed to avoid distress, 173. when landlord may distrain, 173. where landlord may distrain, 173. how landlord may distrain, 173. landlord's remedy by action for, 174. GovEENMENT Depabtments, leases by, 26, 27. Geass, action Kes for use and occupation of pasture and eatage of, 153. distrainable, 169. artificial, as clover, may be taken as emblements, 225. Geates, when removable as tenant's fixtures, 221, 222. Gebenhotjses, when removable as trade fixtures, 219. Digitized by Microsoft® INDEX. 447 GrEO-WlNO CeOPS, ■what are, 169, 170. distress upon, 167, 169, 170. after seizure and sale in execution, 167. option of landlord to resort to, 170. where to be impounded, 177. ■when to he sold, 170, 182. selhng contrary to 11 G-eo. 2, o. 19, irregular, 188. GUAEANTEE, securing rent and performance of lessee's covenants, 7-1. GUAEBIAITS, leases by, 38. gnardians by nature, 38. for nurture, 38. in socage, 38. testamentary, 38. by election, 38. appointed by lord chancellor, 39. execution of po^wers by, under 40 & 41 Vict. o. 18, s. 49. .40. Habenduit, office of, 64. sho^ws commencement of term, 64. limits duration of term, 64. rule ■when discrepancy exists between, and reddendum, 73. ■when rule does not apply, 73, 74. Habitation, no implied condition that unfurnished houses are fit for, 100. other"wise on lease of furnished houses, 100, 101. letting furnished lodgings, 100, 101. Hat, taken in execution, must be disposed of according to covenant, 117. custom as to a'way-going crop of, 227. may be distrained, 169. ■where to be impounded, 169, 177. ■when to be sold, 182. sale of, on condition that it shall be consumed on the premises, 183. UabUity of landlord for not selling at best price, 182, 183. Heeqe, tenant boixnd to maintain, entitled to estovers, 116. presumption of law as to o'wnership of, 116, 117. removal or injury of quickset, waste, 121. obligation to keep up, as between landlord and tenant, 117. Digitized by Microsoft® 448 INDEX. Hedge-bote, tenant may cut down timber for, unless restrained, 121. HEEBAaE, rights of, may be demised, 49. HEEEDITAMENie, incorporeal, leases of, 50, 51. no distress for rent reserved upon letting of, 155. Highway, no distress may be made upon, 172. Highway Rate, payable by tenant, 132. HoLuma ovee, and payment of rent, effect of, 2, 3, 6. tenant's liability for, 241. landlord's remedies for, 241 — 246. by re-entry and so obtaining possession, 242. ejectment, 243. action for double value, 243. rent, 245. waste by tenant, 122. action for, 122. Hops, may be claimed as emblements, 225. Houses, when not distrainable, 163, 167. being ridden, 167. standing at smith's shop to be shod, 163. livery, 164, 165, 166. distrainable, 169. unbroken cart colts, 169. House, what is included in word, 58, 59. when unfurnished, no imphed contract by lessor of its fitness for habitation, 100. otherwise when let furnished, 100, 101. what will pass as appurtenances to, 59, 60. HousE-BOTE, tenant may cut' down timber for, unless restrained, 121. HoirsE Duty, when payable by tenant, 132. HuNima, reservation of right of, 63. is in fact a re-grant by tenant, 63. HuSEAOT), leases by, 41. of wife's freeholds, 41. leaseholds, 42. distress by, in right of wife, 157. Digitized by Microsoft® INDEX. 449 HUSBANDIIKE CULTIVATION, covenant for, implied, 70, 114. obligation to farm according to, 114. meaning of, 114. custom of the country, 114. includes preservation of boundaries, 116. maintenance of fences, 116. enforced by injunction, 114, 118. leaving land uncultivated is not waste, 122. bad husbandry, 122. landlord's compensation for neglect of, 38 & 39 Vict. c. 92.. 118. HuSBANDEY, instruments of, conditionally privileged from distress, 169. HyuBAULio PEESSEa, not fixtures, 217. Idiots, leases to, 45. Illeqai Distbess, ■what is, 190. by a stranger, 190. landlord after parting vsdth reversion, 190. ■when no rent is due, 190. after tender, 190. former distress for same rent, 190. off the premises, 190. at improper time, 190. by breaking open outer door, 190. taking things privileged from distress, 190. •who responsible for, 191. measure of damages for, 190, 191. tenant's remedies for, 189, 190. rescue, 180. replevin, 191. ■when no rent due, 191. by action of trespass, 190, 191. for double value, 191. in MetropoKtau Police District, 193, 194. Implements of Teabe, ■when conditionally privileged from distress, 169. absolutely pri-vileged from distress, 167. Implied Oo'venants, •what are usually, 70. to pay rent, 70, 136. taxes, except landlord's, 70, 132. E. & L. G G Digitized by Microsoft® 450 INDEX. Ijipmed CoTnjNAUTS — continued. what are usually — continued. to keep and deKver up premises in repair, 70, 104. to cultivate land in accordance with good husbandry, 70, 114. to permit landlord to enter and view state of repair, 70. for quiet enioyment until default, 70, 98. are usually qualified by express covenants, 70. construction of, 70. run with the land, 249. upon words of demise, 98. "yielding and paying," 136. Implied Easements, over adjoining property, 60. what pass without mention, 60. how restricted in duration, 60. iMPOtlKIIINS, what is a pound, 177. effect of tender of rent before, 186. after, 186. common law duty of landlord with respect to, 177. rights and liability of landlord by statute, 178 — 180. liability to provide food and water for cattle after, 179. when it may be on premises, 177, 178. removal from premises prohibited, 177. of growing crops, 177. of furniture, 177. of cattle, 177, 178. Impbovements, under Agricultural Holdings Act, 1875 . . 233. compensation for, 233^236. in what cases, 233. of first class, 234, 235. what are, 234, 235. compensation for, 235. measure of, 235. when deemed exhausted, 235. second class, 235. what are, 235. notice to landlord of, 235, 236. when deemed exhausted, 236. compensation for, 236. deductions from, 236. third class, 236. what are, 236. when deemed exhausted, 236. compensation for, 236. when disallowed, 236. Digitized by Microsoft® INDEX. 451 iNCOMiNa Tenant, .KabUity of, to outgoing tenant in respect of aTvay-going rights, 232. not primarily liable, 232. cannot be made so by alleged, custom, 232. liability of landlord may be superseded by contract, 232. contract not implied by mere entry, 232. rights of, where outgoing tenant bound to consume hay on the laud, 232. Inconsistent Relation, creation of, implied surrender, 196, 197. Inooepoeeai. Heeeditaments, leases of, 50. must be by deed, 50. no distress for rent reserved upon, 155. action for use and occupation lies for enjoyment of, 153. Inottmbent, leases of glebe lands by, 30, 32. to, 47. Indefinite Teem, lease for, effect of, 66, 67. Inbemnitt, covenant of, by assignee of lease, 257. Indoesement, upon deed when presumed to be made, 73. writ in action for the recovery of land, 283, 284. of particulars of claim, 283, 284. of addresses of plaintiff and solicitor, 284. of date of service, 294. summons, county court, in ejectment, 336. of fact of service, 336. Infant Tenaot? in Tail, leases by, 13. exercise of powers by guardians of, 40. Infants, leases by, 39. whether void or voidable, 39. exempt from doctrine of estoppel, 12. under direction of Chancery Division, 40. of their settled estates, 40. confirmation of, 39, 40. renewal of, 40. avoidance of, 39. agent of, not binding upon him, 40. effect of Infants' Eelief Act upon, 39, 40. leases to, 44. renewal of, 44. to infant's partner, 44. G G 2 Digitized by Microsoft® 452 INDEX. Infants — continued. liability of, for necessary lodgings, 44. service of writ in ejectment upon, 291. summons of county court upon, 334. Injunction, to restrain waste, 122. tenant from farming otherwise than according to custom, 114. not granted against permissive waste, 122. mehoratiug waste, unless there is a nega- tive covenant, 120. against violation of farming covenants, 118. tenant removing crops, &c., contrary to custom, 233. Inn, goods of guest at, not distrainahle, 166. Instetoeents, unstamped, inadmissible in evidence, 92. may be stamped on payment of penalty, 92. must be stamped according to actual legal opera- tion, 95. lost, presumed to have been properly stamped, 96. Insueahoe, covenant to insure, 129. runs with the land, 249. construction of, 129. how broken, 129. in joLQt names of lessor and lessee, 129. how broken, 129. breach of, continuing, 130. forfeiture for, reKeved against, 130. money paid to lessor, need not be expended in rebuilding, 109. title to, under lease with option of purchase, 109. office may expend insurance money in rebuilding, 109. what necessary to entitle landlord to have the money so applied, 109. statutory provisions in case of fire, 105, 109. Inteeeooatoeies in Ejectment, when may be administered, 306, 307. to corporations, 307. should be administered, 310. in common law divisions, 310. prooeedings on appKoation for order for, 307. objection to answer, 307. when must be answered, 307, 308. form of affidavit in answer, 308. omission to answer, 308. proceedings upon, 308. Digitized by Microsoft® INDEX. 453 Inteeeooatoeies — continued. ■what are objectionable, 307. admissible, 308, 309. how should be framed, 309, 310. use of, iu evidence, 310. costs of, improperly exhibited, 310. iNTOXIOATIOjr, lease made by person in state of, void, 43. to persons iu state of, void, 45. Intentoet, on a distress, 176. service of copy of, 176. Iebeqttlae Disteess, what is, 188. selling without notice, 188. within time allowed to redeem, 188. growing crops before gathered, 170, 188. without appraisement, 188. for less than best price, 188. and not leaving overplus in hands of sheriff, or under-sherifE, 188. efiect of, at common law, 188. by 11 Geo. 2, c. 19.. 188. action for, when maintainable, 189. in the county court, 191. measure of damages in, 189. does not Ke after tender of amends, 189. without special damage, 189. Issue in Tah., leases when good against, 14. Isstjes AMD Peofits of land, demise of, what, 59. Joint Tenants, leases by, 22. notice to quit by one of, efiedl of, 23, 212. payment of rent to one of, effect of, 142. distress by, 159. service of notice to quit on, 212. writ in ejectment upon, 289. Jtjboment, in action for the recovery of land, in High Court, 326, 326. county court, 352. small tenements in county court, 362. Digitized by Microsoft® 454 INDEX. Justices, proceedings before, forreoovery of small tenements, 370 — 376. deserted premises, 376 — 379. police magistrate on -wrongful distress, 193, 194. Keys, detention of, by landlord, not a surrender, 198. acceptance of, by landlord, -when an implied surrender, 198. what is eTidenoe of, 198. Laito, no subject can acquire absolute ownership of, 1. meaning of term in leases, 59. " issues and profits of," demise of, 59. pasture of, demise of, 59. covenants running with, 249. no imphed warranty of its fitness for use intended, 100. voluntary waste in respect of, 119. Lanb Tax, landlord liable to pay in absence of agreement, 131. under covenant, 135. liability of for, limited by rent reserved, 135. tenant paying, may deduct amount from rent, 131. distress for, due from landlord before demise, 102. Lanblobd, right of, to rent, in case of execution against tenant, 149, 150. effect of 8 Anne, c. 14, s. 1 . . 149, 150. not affected by taking security, 141. no priority in administration suit, 150. right of, to compensation under the Agricultural Holdings Act, 238. to appear and defend iu action for the recovery of land, 297. to distrain, how given, 154. when it arises, 154. how extinguished, 155. not s)}speuded by taking security, 141, 156. after assigning his reversion, 156. as to repairs, 104 — 114. as to cultivation, 114 — 118. on determination of tenancy, 215 — 246. remedies of, for non-repair by tenant, 113. non-payment of rent, 148, 149. by distress, 154. action, 149, 271. removal of away-going crop without right, 231. Digitized by Microsoft® INDEX. 455 Landlord — continued. remedies of — continued. for non-eultiTation, 231. breach of covenant as to cultivation, 231. waste, 122, 238. recovery of possession, 267 — 379. by re-entering and expelUng tenant, 242, 243. obligations of, as to repairs, 105. not generally implied, 105. vrbere demise of part only,. 106. as to keeping up fences, 117. liability of , for letting premises ia a dangerous state, 111, 112. for damage caused by nuisance, 112. when lease is an authority to create a nuisance, 112. for irregular, excessive or illegal distress, 189 — 191. to stranger, by defective state of premises, 111, 112. when he contracted to repair. 111, 112. when he let premises in improper state, 112. to outgoing tenant, 232. to rebuild premises burnt down, 113. to pay land-tax, limited by rent reserved, 135. taxes not extended by tenant increasing value, 135. covenants by, to repair, 112, 113. to rebuUd in case of fire, 113. to pay land-tax, 135. "taxes," how construed, 135. for quiet enjoyment, 98. notice to, of want of repair when necessary, 112, 113. by tenant served with writ of ejectment, 296. county court summons, 337. of intention to remove agricultural build- ings, &o., 220, 221. under 38 & 39 Vict. u. 92.. 221, 239. tender of rent to, after authorizing distress, 186, 187. entry by, upon deserted premises, 198. cannot distrain until rent in arrear, 156. without having reversion, 156. buy distrained goods at appraised value, 183. advantages of, in an action for the recovery of laud, 268. at common law, 268. by statute, 271. proof by, in action for the recovery of land, 269. county court action to recover small tenements, 361. proceedings before justices to reoover email tene- ments, 374. Digitized by Microsoft® 456 INDEX. Landloed — continued. encroachments by tenant, presumed to be for benefit of, 116. taxes payable by, 131. meaning of word, in action for the recovery of land, 298. Landloed aud Tenajjt, relationship of, 1, 50, 360. definition of, 360. relation, inconsistent with, a surrender, 197. Lambloed's Fixtuebs, distinguished from tenant's, by irremova- bility, 221. Landloed's Taxes, what are, 131. tenant liable to pay under reservation of " net rent," 132. deduction of, from rent by, 130, 131, 135, 136. paying, may maintain action for, 135, 136. Leases, are " sales pro tanto," 61, 99. distinguished from licences, 50. agreements for, 53 — 55, 76. how regarded in equity, 87. distinguished from leases, 53 — 55. payment of rent under, 6, 154, 155. by whom prepared in absence of stipulation, 76. and at whose expense, 76. of what may be made, 49. exceptions and reservations in, 61 — 64. by whom may be granted, 10 — 43. generally, 10. tenants in fee, 12. tail, 12. after possibility of issue extract, 18. for life, 15. pur autre vie, 17, 18. for years, 20. from year to year, 21. for less than a year, 21. at will, 22. sufilerance, 22. in common, 23. trustees of settled estates, 18. charities, 33, 34. bankrupts, 34, 35. joint tenants, 22. coparceners, 24. lords of manors, 24. copyholders, 25. reversioners and remaindermen, 26. the crown, 26. Digitized by Microsoft® ixDKx. 457 Leases — continued. by wtom may be granted — continued. government departments, 26, 27. corporations, 27- ecclesiastical and eleemosynary, 27 — 32. civil, 32. municipal, 33. , must be under seal, 27, 51. parish of&cers, 33. receivers in chancery, 35. baOifis, 35. agents, 35. executors and administrators, 36. mortgagors and mortgagees, 37. guardians, 38. estoppel, 11. persons under disability, 39. infants, 39. married women, 40, 41. lunatics, 42. aliens, 43. persons imder duress, 43. convicts, 43. under powers, 16, 17, 19, 20. by tenants in tail, 16, 17. for Kfe, 16, 17. trustees of settled estates, 16, 17, 19, 20. rent payable in advance may be reserved by, 137. what must be by deed, 27, 51, 52. may be by parol, 51, 52. required to be in writing, 50, 51. to whom may be granted, 43—48. generally, 43, 44. corporations, 45, 46. what may bring land into mortmain, 46. trustees for charitable uses, 46. how to be made, 46. religious, educational, and literary societies, 46, 47. of friendly societies, 46. public baths and washhouses, 46. bankrupts, 47. ecclesiastics, 47. parish ofScers, 48. persons under disability, 43 — 46. infants, 44. married women, 44. persons non compos, 45. under duress, 45. aliens, 45. convicts, 45. Digitized by Microsoft® 458 ' INDEX. Leases — continued. requisites and nature of, 50. of, at common law, 50, 51. under Statute of ]?rauds,'51. 8&9 Viot. c. 106,8. 3.. 61. short form under 8 & 9 Viot. o. 124. .52. essentials of, 52. proper parties, 52. how described, 53. •words of demise, 52, 53. may be overruled, 55. description of premises, 52, 65. construction of, 55 — 59. commencement and duration of term, 52, 65, 66. rent, 52. execution as a deed when over three years, 52. date, unnecessary to, 52, 53. efEect of impossible, 52, 53. "imoertaui, 66. parol evidence as to, 53. " from" a given, meaning of, 65. omittiug, effect of, 65. when lease is by deed, 65. parol, 65, 66. form of, 52. the habendum, 64. reddendum, 68. covenants, 69, 70, 98. when term of, may commence, 64. determine, 66 — 68. by deed, take effect from dehvery, 52, 53, 65. when mere escrows, 71. action for use and occupation upon, 151. execution of, 71. by attorney, 72. non-execution of, by lessor, 72. lessee, 72, 73. signature not necessary to, 71. who entitled to custody of, 76. during continuance of demise, 76. after term expired, 76. where no coimterpart, 76. by parol, take effect from entry, 65, 66. action for use and occupation upon, 161. in writing, void as a lease, may operate as agreement, 86. duration of, must be certain or ascertainable, 66. variation in terms of, 73. alteration in, after execution, 73. effect of mistake in, 73, 74. perpetuated from draft, 74. Digitized by Microsoft® INDEX. 459 Leases — continued. effect of mistake iu — continued. rule when discrepancy exists between habendum and reddendum, 73. when rule does not apply, 73, 74. rule when counterpart differs, 73. when rule does not apply, 73, 74. sureties for lessee joining in, 74. liability of, how construed, 74. discharged, 74. evidence not admissible that one of two lessees was ia fact a surety, 74. registration of, 74, 75. for indefinite years, effect of, 67.' determination of, 195. one year and from year to year, effect of, 67. given periods with option to determine sooner, 67, 68. void, when construed as agreements for leases, 86. effect of entry and payment of rent under, 86. stamps on, 92 — 97. See Appendix (A), mere cancellation of, will not operate as surrender, 196. provisoes for re-entry in, 200. construction of, 200 — 204. forfeiture of effect upon tenant's liability, 204. proof of, iu action for the recovery of land, 269. Legacy, secured by powers of distress, 145. payment by tenant of, 144, 145. how recoverable by tenant, 144, 145. » who may be, 43 — 48. infants, 44. married women, 44. persons non compos, 45. imder duress, 45. aliens, 45. convicts, 45. corporations, 45. trustees for charitable uses, 46. of friendly societies, 46. public baths and washhouses, 46, bankrupts, 47. for reKgious, educational and literary societies, 46, 47. ecclesiastics, 47. parish officers, 48. bound to dehver up premises, 241, 242. assignments and underleases by, 253. by, do not discharge their liabilities, 253. bankruptcy of, 161, 262. Digitized by Microsoft® 460 INDEX. Lessees — continued. effect of non-execution of lease by, 72. sureties for, 74. bear, in absence of stipulations, expense of lease, 76. upon taking a lease, " caveat lessee " applies, 99. ■tflien lessor a termor, bound at peril to ascertain his power to create term, 99. must bind lessor expressly to do any required act, 100. Lebsobs, who may be, 10 — i3. tenants in fee, 12. tail, 12. after possibility of issue extinct, 18. for Ufe, 15. pur autre vie, 17, 18. for years, 20. from year to year, 21. for less than a year, 21. at Tvill, 22. sufferance, 22. in common, 23. trustees of settled estates, 18. charities, 33. bankrupts, 34. joint tenants, 22. coparceners, 24. lords of manors, 24. copyholders, 25. reversioners and remaindermen, 26. the crown, 26. government departments, 26. corporations, 27. ecclesiastical and eleemosynary, 27 — 32. civil, 32. municipal, 33. parish officers, 33. receivers in chancery, 35. baihffs, 35. agents, 35. executors and administrators, 36. mortgagors and mortgagees, 37. guardians, 38. persons under disability, 39 — 43. infants, 39, 40. married women, 40, 41. lunatics, 42. aliens, 43. convicts, 43. persons under duress, 43. effect of non-execution of lease by, 72. Digitized by Microsoft® INDEX. 461 Lessoes — continued. solicitors of, always prepare lease in absence of stipulation, 76. bear expense of counterpart of lease, 76. Liabilities, of landlord, in case of destruction by fire, 106, 113. under Agricultural Holdings Act, 234 — 238. to outgoing tenant for away-going rights, 232. for irregular, excessive, or illegal distress, 188 — 194. to repair fences, 116, 117. to provide food, &c. for distrained cattle, 179. for letting premises in dangerous state, 111, 112. for damage caused by nuisance. 111, 112. to pay taxes, 135, 136. of tenant to repair, 104. in case of accidental fire, 104. fences, in absence of agreement, 116, 117. to third persons for damage or nuisance. 111. unless lease an authority to create nuisance, 112. for waste, 118, 119. holding over, 241 — 246. act of his sub-tenant in holding over, 242. of administrators, 261, 262. for rent due in lifetime of tenant, 261. after death of tenant, 261. for breaches committed by tenant, 261. after death of tenant, 261. how may be discharged, 262. of executors, 261, 262. for rent accruing due after tenant's death, 261. breaches of covenant after tenant's death, 261. double rent, 245. how discharged, 262. of sureties for lessees, 74. how construed, 74. discharged, 74. Licence, to assign, 255. duty of lessee to procure, 256. extent of, 256. under 22 & 23 Vict. u. 35. .256. how distingTiished from lease, 50. does not carry right of distress, 50, 154. imposes no liabOity on licensee to pay rates as occupier, 50. of lord of manor to lease, 25, 26. parol, to quit, not of itself a surrender, 198. action for use and occupation lies for enjoyment of, 153. to remove fixtures, 223. Digitized by Microsoft® 462 INDEX. Life, Tenant foe, leases by, 15. determines on his death, 15. confirmation of, 15, 17. apportionment of rent on death of, 14G, 147. waste hy, 119. right of representatives of, to emblements, 224, 225. LidHTiNd Eate, payable by tenant, 132. Lights, rights of tenant in respect of, 60, 61. Limitation, Statutes of, time within which action for rent may be brought, 149. efEect of 37 & 38 Vict. o. 67. .149. distress for rent may be made, 149, 161. as to actions for the recovery of land, 268. from what time commences to run, 29, 268. LiaUIDATED DAMAOES, distinction between and penalties, 143. recoverable by distress, 143. cannot be waived, 144. LiauiDATiON ET Aeeangement, recovery of rent by landlord upon, 162. Live Animaxs, leases of, 49. LOEGEE, goods of, privileged from distress, 167. taken under distress for rent due by tenant, 167, 168. how recoverable, 167, 168. may be an undertenant, and be within the meaning of 34 & 35 Viot. c. 79.. 168. Loeqingb, agreement to take furnished, not within Statute of Frauds, 77. pay rent, presumption afforded by, 9. rent for furnished, distress for, 155. furnished, condition implied that they are fit for habitation, 100, 101. breach of, 100, 101. tenant's remedy upon, 101. letting, is no breach of covenant not to underlet, 255. LooKiNO-GrLASSEa, not fixtures, 217. LOBDS OP Manoes, leases by, 24. of wastes by, 24, 25. licence to lease by, 25, 26. Digitized by Microsoft® INDEX. 463 Lunatic, tenant in tail, leases by, 13. leases by, 42. to, 45. by committee of, 42, 43. to committee of, 45. of settled estate of, 13, 14, 43. surrender and renewal of leases by and to, 43, 45. Lunatic AsYiiUM, private, keeping a, a "business," not a "trade," 124. Machineet, wben djstrainable, 216, 217. an agricultural fixture, 219, 220. erected for purposes of trade and agriculture, when removable, 219, 220. Manoes, Loeds op, leases by, 24. of wastes, 24, 25. licence to lease by, 25, 26. Mansion Hoitse not demisable by tenant for life under 19 & 20 Vict. c. 120.. 16. Manuee, agreements relating to, 228 — 232. taken in execution not to be sold off the premises, 117. Maekei G-aedeneb, may remove greenhouses, &c. erected for trade, 219. Maeeied Wouen, leases by, 40, 41. exempt from doctrine of estoppel, 12. what they may demise alone, 40, 41. deed acknowledged, 13, 41. not in pursuance of statutes or express power, 41. of their settled estates, 41. freeholds, 41, 42. leaseholds, 42. distress by husband for arrears of rent due under, 158. leases to, 44, 45. renewal of, 45. payment of rent to, 141. service of notice to quit upon, 212. Mastee, may evict servant from occupation of premises without notice to quit or proceedings in ejectment, 9. servant cannot maintain action for trespass thereon, 9. Digitized by Microsoft® 464 INDEX. Mateeiais intrusted to weaver for manufacture not distrainable, 163. Measttee of Damages, in action for irregular distress, 189. excessive distress, 190. illegal distress, 190, 191. Meegek, when it occurs, 195. , does not relieve undertenant from liability Tinder his lease, 199. Mesne Peofits, recoverable by landlord, 279, 280. joinder of claim for, with claim for possession, 283. rent in arrear recoverable in form of, by mortgagee, 158. Messuage, what included in word, 58, 287. Meteopolitan Police Disteict, remedy for wrongful distresses in, 193, 194. recovery of deserted premises before justices in, 377, 378. Midnight, rent not in arrear until, 139. Much Cows may be milied, after having been distrained, 177, 178. MiNEEAXS, construction of, exception of, 62, 63. demise of, 142, 143. action lies for use and occupation of veins of, 153. Minees, service of county coiirt summons upon, 335. Mines, exception of, in leases, 62. construction of, 62. construction of covenants in leases of, 123, 124. covenant for quiet enjoyment in demise of, 103. how broken, 103. what is waste in respect of, 120. unopened, leases of, 123. covenants in, 123, 124. not exempt from poor rates since 37 & 38 Vict. c. 54. .134. construction of section 8 . . 134. covenant to pay compensation for injury done by working, runs with the land, 249. Mining Leases, by ecclesiastical corporations, 31. civU corporations, 32. reservation of fixed minimum or dead rent in, 142, 143. liability of lessee under, 142, 143. usual and customary clauses in, 83. what are, 83. Digitized by Microsoft® INDEX. 465 Mistake, efEeot of, in lease, 73, 74. rule when discrepancy exists between haben- dum and reddendum, 73. when rule does not apply, 73, 7i. rule when lease and counterpart differ, 73. when rule does not apply, 73, 74. iu draft lease, perpetuated in lease, 74. in notice to quit, 210. in description of parties in writ of ejectment, 28G. property in writ of ejectment, 288. MONTHLT TenANOT, notice required to determine, 375. " MoEB OB Less," meaning of term, 58. MOETOAQEE, leases by, 37, 38. effect of notice by, to tenant under lease made before mort- gage, 142, 157, 158. distress by, for rent due under lease granted before mortgage, 157, 158. payment to, of iaterest by tenant, 145. when, may recover rent in arrear in form of mesne profits, 158. MOETOAGOE, leases by, before the mortgage, 37. distress for rent under, 158, 159. after the mortgage, 37. distress for rent under, 158. MoBTMAiN Acts, immoderate leases to corporations are within, 46. leases to trustees for charitable uses must accord with, 46. MTraiciPAL CoBPOEATioNS, leases by, 33. Neoessaby Lodgings, infant lessee liable for rent of, 44. "Net" Eent, reservation of , 132. imposes burden of rates and taxes on tenant, 132. New TeiaIi. See Appeai. NoN-APPEAEAHOB to Writ ia action for the recovery of land, 301. NoN Compos, leases by persons, 42. to persons, 45. NON- CULTIVATION, is bad husbandry, 122. landlord's remedy for, 231. B. &L. H H Digitized by Microsoft® 466 INDEX. NON-PATMENT OF ReNT, forfeiture for, 203. how created at common law, 203. under proviso for re-entry, 203. waiver of, 204, 205. relief against, 205. ejectment for, 203, 271, 272. right of re-entry for, 203, 272. landlord's right of action upon, 148, 149. distress upon, 148, 149, 154—187. Note, proiaisaory, payment of rent hy, 141. Notice, equitable doctrine of, with regard to assignments, 247. efEeot of, 247, 252. restrictive covenants binding by reason of, 250, 251. of assignment of the reversion to be given to tenant, 251, 252. assignee after, bound by tenant's equities, 252. from mortgagee to tenant as to payment of rent, 142, 157, 158. efEeot of, 157, 158. by landlord to sheriff, on execution against tenant, 150. of distress for rent, 176. how to be served, 176. how to be made, 176. landlord not bound by statement of amount in, 176. contents of, 176. want of, makes sale irregular, 177, 188. proceedings after, 180, 181. to landlord, of want of repairs, 112, 113. by tenant served with writ of ejectment, 296, 297. county court summons, 337. of tenant's intention to remove agricultural buildr ings, &c., 220. under 38 & 39 Vict. c. 92. .221, 239. bylandlord, to tenant holding over to pay double value, 243. of intention to proceed before jus- tices for possession, 372. to repair. 111. Notice to Quit, on a tenancy from year to year, 4, 206. stipulation professing to deprive of right to give, void, 206. may be verbal or written, 206. attestation of written, unnecessary, 206. length of, in tenancy from year to year, 206, 207. where not fixed by statute, agreement, or custom, 2% 'igitized by Microsoft® INDEX. 467 Notice to Q.niT — continued. length of, as to tenancies regulated by Agrioultural Holdiufs Act, 207, 208. in tenancies from half-year to half-year, 375. quarter to quarter, 375. month to month, 207, 375. •week to -week, 207, 375. ' expiration of, 208. on lease by tenant for life, 208. holding over, 208. to underlessee, 208, 209. ■where entry is between quarter days, 209. at different times, 209. when tenancy commenced a question for jury, 209. miist be for the whole premises, 209, 210. efieot of 38 & 39 Vict. c. 92, s. 52. .210. form of, 210. construction of, 210. effect of mistakes in, 210. objections to, discouraged by court, 210. by whom may be given, 206, 211. by mere receivers of rents, 211. agents, 211. steward of corporation, 211. joint tenant, 212. partner, 212. to whom to be addressed, 212. in case of corporations, 213. service of, 212. how effected, 212. ^ when in writing, 212. upon tenant, 212. widow of tenant, 212. one joint tenant, 212. person in possession, 212. corporations, 213. servant, 212. agent, by post, 212, 213. by post, when sufficient, 212. waiver of, 213. by mutual consent, 213. distress for rent due after notice, 213. receipt of rent due after notice, 213. demand for rent due after notice, 213. , second notice to quit, 213. tenant holding over, 213. effect of, 213. vaUd, determines tenancy, 214. underleases, 214. proof of, in action for the recovery of land, 269. not necessary to evict servant, 9. D/g/Y/zIS ^ microsoft® 468 INDEX. NuiSinrcE, tenant liable to third persons for, 111. unless landlord let premises in improper state, 112. authorized by lease, 112. landlord liable -when he has contracted to repair, 111. or let premises in improper state, 112. arising of necessity from use of premises as contemplated by demise, throws liability upon landlord, 112. NUESEETMLiN, may remove greenhouses erected for purposes of his trade, 219. trees planted for purposes of his trade, 219. OCOTTPATION, by servant or agent, does not create a tenancy, 8. when right of, is divested, 9. no notice to quit or proceedings in ejectment necessary to determine, 9. tenant, eifect of, 7. •without any agreement, 6. under void instrument, 6. agreement to purchase, 7, 152. when constructive, 151. what necessary to support action for use and occupation, 151, 152. OprioES, leases of, 49. Option, I to determine leases at end of a portion of term, 67, 68. who may exercise, 67, 68. when given to each party, 68. lease silent aa to who may, 68. to disclaim onerous lease, of trustee in bankruptcy, 263, 264. Oeal AaEBEMENT, collateral to written, when supported, 90, 91. Obnament, fixtures put up for, or domestic convenience, 221. test of removability as to, 221. OUTEE DOOB, may not be broken open to distrain, 175. except in cases of fraudulent removal, 173, 175. broker has been once expelled, 175. OuraoiNO Tenaut, who liable to, in respect of his away-going rights, 232. primary liability of landlord may be superseded by contract, 232. not by an alleged custom, 232. contract not implied by mere entry, 232. Digitized by Microsoft® INDEX. 469 OuTOOiNa Tenajit — continued. compensation to, for away-going crops, 231, 232. for tillages, 227, 233. straw and manure, 227, 229 — 233. cnstoma as to, 227. under Agricultural Holdings Act, 233 — 241. for first-class improTemeuts, 234, 235. second-class improvements, 235, 236. third-class improvements, 236. breactes of covenant, 237. deductions from, 237, 238. injunction to restrain from removing crops contrary to custom, 233. right of, to emblements, 224 — 227. waste by, 121. " OuTOOiNQS," what included in covenant to pay, 133. Oyesplvs, on sale of distress, must be left with sheriff or undersheriff, 184, 185. unsold goods distrained must be returned to premises, 185. action for not leaving in hands of sheriff or imdersherifi, 188. OVEBSEEES OF THE POOE, leases by, 33. to, 48. PaSAMOTTNT TiTlE, eviction of tenants by, 146. when covenant for quiet enjoyment does not extend to, 102. PiLEISH OfPICEES, leases by, 33. to, 48. Paeliament, Acts of, rule as to construction of, 236. PAELiAiTESTAEY Taxkb, meaning of, 132. Paeoohial Taxes jjstd Assesshenis, meaning of, 132, 133. extends to a county rate, 133. Paeoi, contract of tenancy by, how proved, 269. reservation of game, 64. in a parol demise, 64. Past PEEFOBMAIfOE, of oral agreement, 88. what amounts to, 88, 89. specific performance after, 88, 89. Digitized by Microsoft® 470 INDEX. Paeties, capacity of the contracting, 10 — 48. to demise, description of, in lease, 53. description of, in writ of ejectment, 286. in county court summons, 332. Pabtuhe of Laot), grant of, what will pass under, 59. no implied warranty of its fitness for use intended, 100. Pavino Eate, when payable by tenant, 132. PAwrrBBOKEB, goods pledged with, cannot be distrained, 163. Patmbnt, of rent, implied covenant for, 136. time of, 136. where may be made, 139. how may be made, 140. by legal tender, 140. country bank notes or cheque, 140. post, 141. bond, 141. bill of exchange, 141. promissory note, 141. to whom may be made, 141, 142. effect of, 7, 8. after destruction of premises by iire, 109, 110, 146. Penai Rent, what is, 143. payable on breach of any covenant, 143. not recoverable as rent, 143. particular covenants, 143, 144. regarded as liquidated damages, 143. recoverable by distress, 143. no relief against, 143. for what acts payable, 143, 144. no stamp duty chargeable upon, 94. Penaity, payment of, on unstamped instrument, 92. how denoted, 92. distinction between, and liquidated damages, 143. rent, whether stamp duty chargeable upon, 94. Peeibhable GrOODS cannot be distrained, 166, 167. Peemissive Waste, what amounts to, 119, 121, 122. what tenants liable for, 119. injunction will not be granted against, 122. Digitized by Microsoft® INDEX. 471 PeESONS UNEEE DlSABILlTT, leases by, 39. to, 43, 44. Plan, use of, in description of property, 58. Pleadinqs, in action for the recovery of land, 274, 305. statement of claim, 305. defence, 313. cormter-olaim, 316. reply, 318. joinder of issue, 321. amendment of, 319. Plough, beasts of the, conditionally privileged from distress, 169. PooE Rate. when payable by landlord, 131. tenant, 132. may be deducted from rent, 131. is a personal charge, 133. not included in " taxes on the land," 133. included in " public taxes, charges and assessments," 133. Possession-, right of landlord to, on determination of tenancy, 267, 269. proof of, in ejectment, 269. he may re-enter and take peaceably, 267. lessor's obligation to give, 98, 99. lessee's obligation to yield up at expiration of term, 241. landlord's remedies for recovery of, 267 — 379. indirect, 243. action for double value, 243. or distress for double rent, 245, 246. direct, 267—379. by entry, 267. action for recovery of land, 267, 268. in High Court, 267—327. county court, 327—357. for recovery of small tenements, 357 — 376. in county court, 357 — 370. before justices, 370 — 376. proceedings for recovery of deserted premises, 376—379. before justices, 376 — 379. demand of, -when necessary, 269. proof of, in action for the recovery of land, 269. ■warrant for, of small tenements, 362, 371. Post, remittance of rent by, 141. sending notice to quit by, when sufEcient, 212. Digitized by Microsoft® 472 INDEX. Potatoes may be claimed as emblements, 225. POTTNI), different kinds of, 177. person distraining, responsible for condition of, 177. Pouiro-BEEAOH, remedy for, 180. PowEE OP Distress, how given, 154. POWEES, leases under, 16, 17. by tenants in tail, 16, 17. for life, 16, 17. trustees, 16, 17. married "women, 41. construction of, 17. relief on defective execution of, 17. ■when leases not in accordance ■with, are void, 17. confirmation of invalid leases under, 17. Peemises, restrictions on user of, 122 — 129. covenants to reside on, run ■with the land, 249. entry by landlord upon deserted, 198. ■what are deserted, 377. Pkesumtion m favour of deed, 96. Peoeuoe, stipulations as to, binding upon sherifE on execution, 117. seized and sold under execution, ■when distrainahle, 167, 169. PeOhibition, to county court in action of ejectment, 328, 329. ■when annual value exceeds 20^. . . 328. where title in question, under 30 & 31 Vict, c. 142, s. 12.. 329. Peomissoet Note, payment of rent by, 141. Peoeeety capable of being demised, 49. Peopeety Tax, may not be made subject of direct contract, 130. is payable by landlord, 130. if paid by occupier may be deducted from rent, 131, 145. stipulations and provisoes relating to, 130, 131. for payment of rent ■without deducting, void, 130. unless landlord agxee to pay tenant amount of tax, 131. Digitized by Microsoft® INDEX. 473 Peoviso fob Re-bntet, on breach of covenant, how construed, 200 — 203. if insensible, 202. usually extended so as to include other acts, 202. not a "usual and customary clause," 83. on non-payment of rent, 203. how framed, 203. when demand necessary, 203, 271. 15 & 16 Vict. c. 76, s. 210. .203, 271. deemed a " usual and customary clause," 83. forfeiture under, makes lease voidable not void, 204. by landlord alone, 204. proof of, in action for the recovery of land, 269, 270. assignees of each part of reversion entitled to benefit of, 252, 253. Peovisoes, unusual, what are, 84, 85. construction of, 202. Ptjb atjiee Vie, leases by tenants, 17, 18. PUBOHASB, AOEEEMENT EOE, effect of occupation under, 3, 152. payment of rent under, 7. QuAUTtrai Valebat, action for rent on a, 143. QuAEiEELY Tenancy, len^h of notice required to determine, 375. QmET Enjothent, implied covenant for, 70, 84, 98. in every letting, 98. is co-extensive with lessor's interest, 98. how restrained, 70, 101. on words "demise" and "let," in deed, 99. none in mere agreement for a lease, 99. express covenant for, 101. supersedes implied covenant, 71, 101. is co-extensive with term created, 101. entitles lessee to damages, if lessor no title, 101. lessor's liability under, 100, 101, 102. secures possession not particular mode of enjoyment, 102. covenants for, generally, how construed, 101. afford no remedy when premises not available for purposes for which they were taken, 100. are confined to lawful evictions, 101. what amoxmts to breach of, 101, 102. in a licence to sport, 103, 104. breach of, only suspends rent, 104. run with the land, 249. Digitized by Microsoft® 474 INDEX. EiEEITS, oral agreement to destroy by landlord, held binding, 91. destroying, not a breacb of covenant for quiet enjoyment in Kcenoe to sport, 103. unstocking warren is waste, 121. covenant not to plough, rabbit warren, when inferred, 69, 70. Eailway RoLiiNa Stock, when not liable for distress, 168, 169. BA.TE8, what included in, 133. payable by landlord, in absence of agreement, 131. sewers rate, 131. half cattle-plague rate, 131. poor rates, where term does not exceed three months, 131. payable by tenant, in absence of agreement, 132. house duties, 132. poor rates, 132. paving rate, 132. watching rate, 132. lighting rate, 132. highway rate, 132. county and borough rates, 132. poor and church, not included in "taxes on the land," 133. covenant to pay, 132, 133. when future impositions included in, 133. EiTinoATiON, of bailiff's authority to distrain, 174, 175. of leases by infants, 39, 40. effect of Infants' Eehef Act, 39, 40. Ebai, Estate, all interests in, held by some tenure, 1. Be-assiqnmcent, discharges assignee from future liability, 258. of part only of the estate, effect of, upon assignee's liability, 259. liabilities of successive assignees upon, 257, 258. Eeceiveh, in chancery, leases by, 35. notice to quit by, 211. distress by, 159, 160. Eeooveey or Laito, Action por the, when tenancy expired or determined, 267. period of limitation as to, 268. reduced by 37 & 38 Vict. c. 57. .268. special advantages of landlord in, 268. at common law, 268. by statute, 273, 274. general proof of landlord's case in, 269. Digitized by Microsoft® INDEX. 475 Eecoveet op Land, Action poe the — ermtinued. general proof of contract of tenancy, 269. if "written, by production, 269. oral, by evidence of parties pre- sent, 269. by admissions of defendant, 269. of landlord's right to possessioii, 269. on expiration or determination of term, 269. by effluxion of time, 269. notice to quit, 269. demand of possession, 269. for breacb of covenant, 269, 270. on forfeiture, 270. proceedings by landlord generally, 270. for breach of covenant, onus upon lessor to show that lease has been forfeited, 270. non-payment of rent, 271. formal demand of rent, 271. how made, 203. proviso for re-entry, 203, 271. how framed, 203,271. how construed, 271. provisions of 15 & 16 Vict. o. 76, s. 210.. 271, 272. effect of, 272. where half-year's rent is in arrear, 203, 204, 271, 272. the right of re- entry must he ab- solute, 272. where there is six mouths' rent in arrear, 272, 273. and insufficiency of distress, 273. what is insufficiency of distress, 273. effect of Common Law Procedure Act, 1852, upon ejectment, 273, 274. alterations under Judicature Acts, 274. 15 & 16 Vict. c. 76, s. 213.. 274. where tenant holds over, 274. tenant to find hail for costs and damages, 274. how security conditioned, 280. what security includes, 280. tenancy must be in writing, 275. be for term certain, 275. have expired, 275. written demand of possession necessary, 276. to whom section 213 available, 276. proceedings after refusal of possession, 277. where tenant does not appear, 277. does appear, 277 — 279. Digitized by Microsoft® 476 INDEX. Eecoveey op Laud, Action toe the — continued. eflEeot of 15 & 16 Vict. c. 76, s. 214. .279. damages for mesne profits recoverable, 279. section not confined to cases under s. 213. . 279. plaintiEB must prove relation of landlord and tenant, 280. 15&16 Vict. c. 76, 8. 215..280. no stay of execution without security, 280. injunction against waste or damage, 281. 15 & 16 Vict. i;. 76, 8. 216.. 281. recognizances how to be taken, 281. 15 & 16 Viot. 0. 76, s. 217. .281. landlord to proceed to trial after service of writ, 281, 282. in the High Court, 283—327. proceedings in, 283. writ, 283. indorsement on, 283. joinder of claims, 283. action for foreclosure not included, 283. of address where writ issued out of London ofBce, 284. where plaintifl! sues by solicitor, 284. in person, 284, 285. writ issued out of district registry, 285. duration of, 285. , renewal of, 285. when Court caimot renew, 285, 286. concurrent, 286. parties, 28G. how described in, 286. titled persons, 286. trustees of bankrupts, 286. executors and administrators, 286. churchwardens and overseers, 286, 287. corporations, aggregate and sole, 287. property, how described ia, 287, 288. reasonable certainty in description, 287, 288. want of, 287. meaning of word "tenements," 287. "messuage," 287. land, how should be described, 288. service of, 288. when may be effected, 289. on whom may be effected, 288 — 293. how may be effected, 288—293. where may be effected, 288—293. Digitized by Microsoft® INDEX. 477 Eeooveby of Laot), Action foe the — continued. proceedings in the High Court — continued. writ, service of — continued. must be personal, 288, 290. imless otherwise ordered, 288, 290. upon particular defendants, 291. husband and wife, 291. infants, 291. lunatics, 291. partners, 291. person trading in the name of a firm, 291. corporations, 291, 292. charitable institutions, 292. chapels, 292. in oases Of vacant possession, 292, 293. out of the jurisdiction, 293. order should provide for service of interroga- tories, 294. date of, must be indorsed, 294. whence may be issued, 294. appearance, 294. time limited for, 294, 295. where to be entered, 294. iE elsewhere than where writ was issued, 294. how to be entered, 295. when to be entered, 294 — 296. after time limited, 296. judgment signed after, 296. memorandum of, 295. contents of, 295. omissions in, 295, by partners, 295. person trading and sued in the name of a firm, 295. effect of errors or irregularities in, 296. tenant, served with writ, to notify his landlord, 296, 297. effect of 15 & 16 Vict. c. 76, s. 209.. 296, 297. by persons not named in writ, 297, 300. as landlords, 299. preservedby Ord. XII. r. 1 8 . . 297. right of, 297, 298. who may enter, 297, 298. when applioation to be made, 299. by landlord, and stay of proceedings against tenant, 299. may limit defence to part only, 300. for part only, description of the part, 300. defendant's liability for costs after, 300, 301. when defendants need not enter, 301. non-appearance, 301. by servants, bailiffs or persons not claiming, 301. proceedings in heu of appearance, 301. Digitized by Microsoft® 478 INBEX. Eecoveey op Land, Action foe the — continued. proceedings in the Higli Court — continued. non-appearance — continued. proceedings upon, 301. filing affidavit of service, 301. necessary before signing judgment, 301. affidavit of service, must be sufficient, 301, 302. requisites of, 302—304. form of, 302, 308. on tenant's wife, 302, 303. servant, 303. agent, 303. on several tenants, 303. companies, 303. in cases of vacant possession, 303, 304. constructive service, 304. when the plaintiff may enter judgment for, 304. proceedings where claim for mesne profits, &c., 304. when judgment for, may be set aside, 305. pleadings in, 273, 274, 305. statement of claim, 305. when to be delivered, 305. proceedings on non-delivery of, 305. unnecessary delivery of, 305. costs of, 305. contents of, 305, 306. venue, how laid in, 306. statement of defence, 313. when to be delivered, 313. proceedings on non-delivery of, 313. contents of, 305, 306, 314, 315. admitting part of claim to be due, 315, 316. signing judgment upon, 315, 316. statement of claim must have dis- closed facts, 316. counter-claim, 316. .need not equal plaintiff's claim, 316. how set up, 316. how excluded, 317. how stated, 317. set-off, how pleaded, 316, 317. how stated, 317. matters arising after action brought, before defence delivered, 317. defence delivered, 317. alleged by defendant as defence, 317. action of plaintiff thereon, 317. discontinuance of action, 318. by plaintiff by written notice, 318. as to the whole or any part of claim, 318. no defence to any subsequent action, 318. when may be taken without leave, 318. INDEX. 479 Reooveet op Land, Action foe the — continued. proceedings in the High Court — continued. discontinuance of action — continued. record maybe ■withdrawn hy either party by consent, 318. reply and subsequent pleadings, 318. when to be delivered, 318. no further pleading other than joinder of issue, 318. subsequent pleadings, when allowed, 318. to be delivered, 318. proceedings on non-delivery of, 318, 319. amendment of pleadings, 319. , without leave, 319. with leave, 319. what generally ordered, 319. proper, may be made at any time, 319. after joinder of issue, 319. after cause has been entered for trial, 319. at trial, 319. where made 'n'ithout leave, 319. proceedings upon, 319, 320. date of, must be marked, 320. practice at judges' chambers, 320, 321. of claim by plaintiff after delivery of defence, 320. defendant may put in new defence, 320. may obtaia leave to amend ori- giaal defence, 320. may proceed with original de- fence, 320. close of pleadings, 321. joinder of issue, 321. effect of, 321. discovery and inspection, 306, 307. non-compliance with orders as to, effect of, 313. interrogatories, 306, 307. when may be administered, 306, 307. to corporations, 307 shoxdd be administered, 310. in common law divisions, 310. proceedings on appKcation for order for, 307. objection to answer, 307. when must be answered, 307, 308. form of affidavit in answer, 308. omission to answer, 308. proceedings upon, 308. what are objectionable, 307. admissible, 308, 309. how should be framed, 309, 310. use of, in evidence, 310. costs of, improperly exhibited, 310. Digitized by Microsoft® 480 INDEX. Eeooveet op Land, Action foe the — continued. proceedings in the High. Court — continued. discovery and inspection — continued. discovery of documents, 310. order for, how obtained, 310. when may be obtained, 310, 311. upon defendant in possession to make affidavit of his documents of title, 311. affidavit of party discovering, 310. inspection of documents, 311. of what documents allowed, 311, 312. notice respecting, 311, 312. non-compliance with, effect of, 311, 312. costs of, when allowed, 312. proceedings upon, 312. party failing to allow, liability of, 313. judges' chambers, practice at, 320, 321. appeals from decisions at, 313. motion to be made within eight days, 313, 314. notice of motion to be served, 314. trial, notice of, 321 . by whom to be given, 321. should state mode of trial, 321. wlien to be given, 321, 322. where plaintiff omits to give, 321. what to be given, 322. short, what is, 322. must be given before entering action for trial, 322. contents of, 321, 322. not in force unless cause entered for trial within six days, 322. entering action for trial, 322, 323. proceedings at, 323. where defendant does not appear, 323. claimant does not appear, 323. verdict or judgment in default, 323. how set aside, 323. evidence at, 323. by affidavit, 323. by consent, 323, 324. should be formal and in writing, 323. when affidavits to be printed, 324. filed, 324. by order, 324, upon motion, petition, or summons, 324. affidavits, form of, 324. judgment, 325. may be entered for any or either party absolutely, 325. proceedings upon, 325. Digitized by Microsoft® INDEX. 481 Eecoteet op Land, Action poe the — continued. proceedings in the High. Govj:t— continued. i udgment — continued. application may be made to Court of Appeal to set aside, 326. must be by motion upon notice, 326. need not be given, but case adjourned, 325. judge need not direct entry of, 32.5. may leave any party to move for, 325. proceedings upon, 325, 326. cannot be entered -without order of court or judge, 326. in other cases how to be obtained, 326. in default of appearance, 326. of pleading, 326. on failure to aUo-w discovery, 326. when motion for, to be made, 326. new trial, 326. how to be obtained, 326. when to be obtained, 326. when cause heard in London or Middlesex, 326. when heard elsewhere, 326. groimds upon which it will be granted, 326. an order to show cause, a stay of proceedings, 326. execution, 327. in the County Court, 327—357. when may be brought, 327. jurisdiction of court, 30 & 31 Vict. c. 142, s. 11 . . 327. when ousted, 327, 328, 330. how value determined, 327, 328. prohibition to court when annual value exceeds 201. . 328. where title in question, 30 & 31 Vict. u. 142, o. 12. . 329. defendant may apply to remove case, 329, 333. proceedings in, 331. plaint, 331. nature of, 331. how entered, 331. joinder of claims in, 331. parties in, 331. description of property in, 331. etfect of inaccuracy in, 331. what required, 332, 333. fees on entry of, 331, 332. summons, 332. when mnst be dated, 332. contents, 332. amendment of names or descriptions, 332. where too many joined, 332. effect of misjoinder of parties, 332. ^■*^' Digitized by Microsoft® ^ ^ 482 INDEX. Eecovebt? of Land, Action foe the — continued. proceedings in the County Court — continued. siunmons — continued. want of reasonable certainty in description in, 332, 333. when must be served, 333. days when may not be served, 334. service of, how efEeoted, 334. on infant, 334. lunatic, 334. partners, 334, 335. sailors, 335. soldiers, 335. prisoners, 335. miners, 335. servants in asylums, 335. prisons, 335. corporations, 335. in cases of vacant possession, 335. where violence threatened, 336. where defendant abroad, 336. doubtful, notice of, 336. endorsement of, 336. where service has been personal, 336. not been personal, 336. proof of, where defendant does not appear, 337. sufBciency of, 337. tenant served with, to notify landlord, 337. person not namedin, may by leave appear and defend, 337, 338. proceediags on appearance of, 338. further particulars of claim, how obtained, 338. defendant may limit defence to part only, 338. proceedings limiting defence, 338. discontinuance of, 338. agaiost all or any of the defendants, 338. notice of, to registrar and to parties, 338. costs after, 338, 339. confession by defendant, 339. abatement of, 339. upon death of parties before judgment, 339, 340. after judgment, 340. continuance of, 340. provisions as to, under County Courts Act, 1867.. 340. where-party dies before return day, 340. plaintiff dies before return day, 340, 341. one of several plaintiffs dies before return day, 341. on death of plaintiff after judgment, 341, 342. defendant before return day, 342, 343. ^' Digitized by Microsoft® INDEX. 483 Eeooveet of Laud, Action fob the — continued. proceediags in the County Coiiit — continued. continuance of — continued. provisions as to, &c. — continued. on death of one of several defendants before re- turn day, 343. defendant after judgment, 343, 344. one or more defendants, 344. discovery and inspection of documents, 344, 345, 346. production of documents, 344. order to produce, 344, 345. answer to, 345. further order to produce, 345. contents of order to produce, 345. will be allowed at any time before trial, 345, 346. inspection of documents, 346. of what documents permitted, 346. interrogatories, 346. application for leave to administer, 346. objection to answer, 347. successful, proceedings on, 347. unsuccessful, proceedings on, 347. oral examination, proceedings on, 347. when and what may be administered, 307 — 310, 347, 348. admission of documents, 34S. upon notice, 348. costs of, 348. notice to produce documents, 348, 349. how framed, 348, 349. proof of, to admit secondary evidence, 349. witnesses, 349. summons to compel attendance of, 349. how obtained, 349. served, 349. names inserted in, 349. expenses allowed to, 349, 350. penalty for non-attendance, 349. jury, action may be tried by, 350. demand for, 350. how made, 350. proceedings at trial, where both parties desire, 350. trial, proceedings at, 350. where plaintiff does not appear, 351. defendant does not appear, 351. both parties appear, 351. plaintiff's title has expired, 351. special ease, 351, 352, 353. judgment, 352. execution, 352. where judgment for plaintiff, 352. Digitized byiMic^oft® 484 INDEX. Reooveet op Laot), Action foe the- prooeediags in the County Court — continued. execution — continued. where judgment is for possession and costs, 352. defendant with costs, 352. appeal, 352. none, on a question of fact, 357. by special case, 353. time and form of notice of appeal, 353. notice not to operate as stay of execution, 354. security for costs on, by appellant, 354. defendant, 354. case to be presented to judge, 354. procedure on Ms refusal to settle and sign, 355. form of, 355. by motion, 356. when to be made, 356. where to be made, 356. proceedings upon, 356, 357. notes compiled by judge after trial receivable, 356, 357. unless cause be shown, order will be made reversing judgment, 357. proceedings where another action pending in other court, 357. court fees, 366. Reooveey of Small Tenements, Action in County Courts for the^ under 19 & 20 Vict. c. 108, ss. 50, 52. .357— 370. against tenant holding over, 358 — 363. jurisdiction of County Court, 358. under 19 & 20 Vict. o. 108, o. 50, .358. where title comes in question, 359, 360. 30 & 31 Vict. 0. 142, s. 12. .359. plainti6E may add claim for rent and mesne profits, 359. ordinary relation of landlord and tenant must exist, 360. evidence for plaintiff upon, 361. proof of tenancy, 361. yearly value not exceeding 50/., 361. no fine or premium paid, 361. neglect or refusal to yield up possession, 361 . service of summons, 361, 362. proof of plaintiff's title, where accrued since letting, 362, judgment, 362. order for possession, 362. warrant for possession, 362. how enforceable, 362. effect of, 363. against tenant for non-payment of rent, 363. under 19 & 20 Vict. c. 108, o. 62. .363, 364. no fo™»lJeDMJidj)te^mte)necessary, 364. ixDEx. 485 Eeooveby of Skaxl Tenemekts — continued. Action in County Courts for the — continued. against tenant for non-payment of rent — continued. evidence for plaintiff upon, 364. proof of yearly value, 364. that haK-year's rent in arrear, 364. of landlord's right to re-enter, 364. that the rent is still in arrear, 364. of plaintiff's title, where accrued since let- ting, 364. service of summons, where defendant does not appear, 364. judgment, 364, 365. sub-tenant to notify immediate landlord, 365. protection of ojEBcers, 366. landlord with lawful title not a trespasser, 366. appeal, 366. court fees, 366. Proceedings before Justices for the, under 1 & 2 Vict. c. 74 . . 370. after determination of tenancy, 371. notice of intention to proceed before justices, 372. service of, 372. evidence for claimant, 371. proof of holding, 371, 374. yearly value not exceeding 20Z., 371, 374. determination of tenancy, 371, 374. neglect or refusal to give up possession, 371, 375, 376. landlord's right, where title accrued since let- ting, 371. service of notice, 371. warrant for, 371. how enforced, 371. when to be enforced, 371. wrongfully obtained, proceedings upon, 373. action for trespass where, 373. justices protected, 373. construction of act, 373, 374. extension of act, 376. requisites to successful, 374. landlord or agent may proceed alone, 376. jurisdiction of justices, 371, 376. not ousted by questions of title, 376. Eeooteey op Deseeted Peemises, proceedings before justices, 376 — 379. when maintainable, 376, 377. under 11 Geo. 2, c. 19.. 376, 377. in the metropolis, 377, 378. 3 & 4 Vict. c. 84.. 377, 378. Digitized by Microsoft® 486 INDEX. Eeooveky op Deseeted Peemises — continued. proceedings in the city of London, 378. 11 & 12 Vict. c. 43.. 378. no complaint on oath necessary, 378. appeal, 377. to whom to be made, 377. when successful, record of proceedings a protection to landlord and others, 379. what are deserted premises, 378. record of proceedings, 379. Eeddendxtm. See Eent. office of, 68. rent defined, 68. may not he part of the profits of demised premises, 68. cannot be reserved out of incorporeal hereditament, 68, 69. how to be framed, 69. rule when discrepancy exists between, and habendum, 73. when rule does not apply, 73, 74. Ee-entey, proviso for, on breach of covenant, how construed, 200 — 204. if insensible, 202. usually extended so as to include other acts, 202. not a " usual and customary" clause, 83. on non-payment of rent, 203. how framed, 203. when demand necessary, 203, 271. 15 & 16 Vict. c. 76, s. 210. .203, 271. deemed a "usual and customary" clause, 83. forfeiture imder, makes lease voidable not void, 204. by landlord alone, 204. proof of, in action for the recovery of land, 269. assignees of each part of reversion entitled to benefit of, 253. Keqisteation, of leases, when necessary, 74, 75. extended to leaseholds by 38 & 39 Vict. c. 87. .76. of underleases, with lessor's solicitor, not a " usual " covenant, 84. Eelation of Laudloed and Tenant, a legal relationship, 247. when it arises, 1 . is not created by a licence, 60. necessary to proceedings for recovery of small tenements, 360. proof of, 361. creation of inconsistent relation a surrender, 197. Digitized by Microsoft® INDEX. 487 Belief, against forfeiture for non-payment of rent, 205. non-insuring, 130, 205. breaches of covenant for which none generally granted, 205, 255. in case of mistake, accident, or fraud, 205. Remahtdebmbn, leases by, 26. when bound by leases of tenants in tail, 13. not bound by leases of tenant for life, 15. EEinSDIES, of tenant, for recovery of taxes paid by him, 135, 136. a 'wrongful distress, 188 — 193. in metropolis, 193, 194. where distress irregular, 188, 189. excessive, 189, 190. illegal, 190, 191. by action of replevin, 191 — 193. upon breach of covenant for quiet enjoyment, 101. to repair, 112, 113. for selling distress before time, 182. after tender of rent, 186. for not selling distress for best price, 182, 183. of landlord, for forehand rent, 137. waste, 122. use and occupation, 151. non-cultivation, 231. wrongful removal of away- going crops, 231. fraudulent removal of goods to avoid distress, 174. rent, 21, 143, 148, 149, 203. pound breach, 180. against tenant holding over, 242, 243. upon covenant to repair, 107. by action for recovery of land, 267 — 357. small tenements, 357— 376. by proceedings for recovery of deserted premises, 376—379. Remittance op Rent by post, 141. Removai. oe Fixtitees. See Fixtdhes. time of, 222, 223. right of, regulated by custom or contract, 222. Renewal oe Leases, covenants for, run with the land, 249. surrender for purpose of, 196, 199. by and to infants, 40, 44. lunatics, 43, 45. to married women, 45. Digitized by Microsoft® 488 INDEX. Rent, 136—153. defined, 68. necessary incidents of, 68. must be certain in amount, 68, 142, 155. or ascertainable, 68, 142. how asoertaitiable, 155. reservation of, 68. from -what, 68, 69. to whom, 69. general obEgation to pay, 136. " yielding and paying," effect of words in lease, 136. before becoming payable, a condition precedent to its recorery must be performed, 136. "net," meaning of, 132. " free of all outgoings," meaning of, 132. covenants to pay, 70, 83. rehef against forfeiture for breach of, 205. run with the land, 249. payable in advance, 137. reserved by a lease under a power, 137. recoverable by action or distress, 137. usual stipulation as to in farming leases, 138. entry at a rent to be fixed in future, effect of, 143. penal, 143. not hable to stamp duty, 94. suspension of, during eviction, 145. on breach of covenant for quiet enjoyment, 104. not suspended by destruction of premises, 110, 146. premises becoming uninhabitable, 113, 146. a proviso for abatement of, how construed, 146. when payable, 136. when reserved generally, 136. no time mentioned for payment, 136. construction of stipulations as to, 136, 137. payment before due not a discharge, 138. due, 139. in arrear, 139, 156. to be demanded, 139. where payable, 139. where there is no express provision, 139. a covenant to pay, 139. crown is lessor, 139. how payable, 140. landlord may refuse anything but silver, gold, or bank notes, 140. by notes or cheque, 140. postal remittance, 141. bond, bill of exchange, or promissory note, 141. to whom payable, 141. to landlord himself, 141. agent, 141. Digitized by Microsoft® INDEX. 489 Rent — continued. to whom payable — continued. landlord's wife, 141. one joint tenant, 142. tenant in conunon, 142. to lessor, mortgagor of reversion, 142. to mortgagor after notice from mortgagee, 142. remedies for recovery of, 148, 149. by distress, 149, 154—187. by action, 21, 143, 149, 203. arrears of, wbat recoverable, 149. since Act 37 & 38 Vict. c. 57. .149. deductions from, 130, 131, 144, 145. in respect of landlord's taxes, 130, 131, 145. property tax, 130, 145. land tax, 131, 145. sewer's rate, 131, 145. half cattle-plague rate, 131. tithe rent-charge, 131, 145. compulsory payments, 144, 145. must be made from rent next due, 145. apportionment of, 146, 147. in respect of time, 146, 147. where landlord resumes possession under 38 & 39 Vict. K^. 92, s. 52.. 146. in respect of estate, 148. how made, 148. where lease is void as to part of premises, 156. apportioned share of, remedies for recovering, 148. landlord's right to, in case of execution against tenant, 149, 150. landlord has no priority for, in administration suit, 150. payment of, effect of, 7, 8. of inadequate amount of, under invalid lease, effect of, 8. security for, effect of taking, 141. on right to distrain, 156. sureties for payment of, 74. by bond, 74. separate guarantee, 74. joining in lease, 74. agreeement to assign, before due, withia Statute of ^Frauds, 77. Kepaies, no implied obligation on landlord to repair, 105, 106. unless the letting is of part of a building, 106. must be done by landlord on agreement for lease of new house with repairing covenants, 106. when implied obligation on tenant to repair, 104. implied undertaking to do, 104. in case of tenant, 104, 105. from year to year, 104. Digitized by Microsoft® 490 INDEX. Eepaies — continued. m case of tenant for years, 105. in case of accidental fire, 105. express covenants to do, 106. how construed, 106, 107. controlled, 106, 107. to what repairs applicable, 107, 108. by landlord, 112, 113. notice necessary before suing on, 112, 113. licence to enter on premises im- plied, 113. by landlord to rebuild in case of fire, 113. liability under, 113. by tenant, subject to condition precedent, 110. to repair after notice. 111. independent of general covenant, 111. general covenant to repair by lessee, 109. HabiKty of lessee under, 109. in case of fire, 109. for act of God, 109. where lessor insured, 109. to what buildings applies, 108. extends to fijctures, 108. how broken, 108, 109. relief from liability for, in case of fire, by proviso, 110. landlord contracting with tenant to do, liable to third persons for damage or nuisance. 111. landlord's liability for nuisance caused by want of, 112. covenants to do, run with the land, 249. breach of, landlord's remedies for, 113. measure of damages upon, 114. forfeiture for, not relieved against, 113. Keplevin, what it consists of, 191, 192. when applicable, 191. proceedings in, 191, 192. under 19 & 20 Vict. c. 108. .192. bonds exempt from stamp duty, 193. no other cause of action can be joined with, 193. security upon, 19'2, 193. selling goods after they have been replevied unlawful, 188. RESCtra, - of distress, 180. after the goods are impoimded, 180. liability of tenant for, 180. Digitized by Microsoft® INDEX. 491 Reservation, what is a, 61. distinction between, and exception, 61. of right of shooting, &c., 63. is in fact a re-grant from tenant, 63. must be under seal, 63. of additional or penal rents, 143, 144. Kesikaint op Tbabe, covenants in, 85, 124. Ee5teiotions on Usee, of premises, 122 — 129. by la-w as regards neighbours, 128, 129. Keveesion, landlord must have, in order to distrain, 21, 156. Tvant of, supplied by estoppel, 156. rent follows the, 69. assignment of, 156, 251, 252. assignee should notify tenant, 252. bound by tenant's equities, 252. may distrain for rent, 156. have action for rent, 252. for what breaches of covenant, 252. maintain an action for use and occupation, 152. apportionment of rent on severance of, 252, 253. when surrendered or merged, next vested estate to be deemed reversion, 199. Reveesionees, leases by, 26. distress by, 157. ElOHTS AND LlABrEJirES, of parties during the tenancy, 60, 61 ; 98 — 153. in respect of lights, 60, 61. as to quiet enjoyment, 98 — 104. repairs, 104 — 114. cultivation, 114 — 118. waste, 118—122. user of premises, 122 — 129. insurance, 129, 130. rates and taxes, 130 — 136. rent, 136—153. on the determination of the tenancy, 215 — 246. otherwise than by regular expiration, 230. as to fixtures, 215 — 224. emblements, 224—227. away-going crops, 227 — 233. oompeusatiou under 38 & 39 Vict. o. 92. .233— 241. Digitized by Microsoft® 492 INDEX. Saiteon may be claimed as an emblement, 225. Sale, under distress, 180. how to be conducted, 180. notice of, 176. appraisement, 181. overplus to be disposed of, 181. stamp on appraisement, 181. goods must be sold for the best price, 182. not to be made to landlord, 183. of com and hay, 182. growing crops, 182. cattle distrained, for expenses of food, 180. hay and straw to be consumed on premises, 183. when to be made, 180 — 182. how the five days are to be computed, 182. landlord not bound to sell immediately, 181, 182. of severed com and hay, 182. growing crops, 170, 182. how long distress may be kept on premises for sale, 182. where to be made, 181. to whom it may be made, 182, 183. to appraisers, 182. not to landlord, 183. action for wrongful, 182, 183. selling before the five days have elapsed, 182. not selling at best price, 182, 183. coats of, 183, 184. ScHOOt, agreement not to convert bouse into, 85. keeping a, is a "business," though not a " trade," 124. for gratuitous education breaks covenant to use as " a private dwelling-house" only, 126. SciBNTiEio Societies, leases to trustees of, 46, 47. Seaxinq Deed, what constitutes, 71. Second Disteess, none for rent obtainable under first distress, 185. where landlord has voluntarily abandoned the first, 185, 186. where cattle distrained insufficient to pay arrears, 185. die in pound by act of God, 185. goods on premises on the first occasion are insufficient, 185. are of uncertain or imaginary value, 185. landlord prevented from realizing by tenant, 185. Second Notice to Quit, when a waiver of former notice, 213. Digitized by Microsoft® INDEX. 493 Security, for rent, effect of taking, 141. on right to distrain, 156. upon replevin, 192, 193. for costs of action of ejectment against tenant holding over, 274. how conditioned, 280. appeal in county court action for recovery of land, 354. See, leases of lands assigned as endowment of, 31. Seiztjee, of distress, 176. how made, 176. when goods fraudulently removed, 173. cattle for distress, on common, 172. driven off to avoid distress, 172. growing crops, 169, 170. Sepaeate Use, leases hy married women of property settled to, 41. Sebtajit, occupation by, does not create a tenancy, 8. when right is divested, 9. notice to quit not necessary to determine, 9. nor proceedings in ejectment, 9. cannot maintain an action for trespass against master, 9. service upon, of notice to quit, 212. served with writ in ejectment should not appear, 301. Seevioe, of notice to quit, 212, 213. of distress, 176. of writ in an action for the recovery of land, 288. of summonsincounty court action for the recovery of land, 334. proof of, 337, 361, 362. of order for possession of small tenements, 362. of notice of intention to proceed before justices, 372. Set-oit of deductions from rent, 130, 131, 144, 145. Settled Estates, leases of, 13 — 17. of lunatics, leases of, 13, 14, 43. leases of, by husband entitled in right of wife, 41. Act of 1877 (40 &41 Vict. c. 18) consohdates former acts, 15, 16. Sewees' Rate, payable by landlord in absence of agreement, 131. may be deducted from rent, 131. payable by tenant under reservation of " net rent," 132. Sheep, may be demised, 49. conditionally privileged from distress, 169. Digitized by Microsoft® 494 INDEX. Sheeiff, overplus of distress to be left in hands of, 181, 188. or in hands of under-sheriff, 188. duty of, on execution against tenant owing rent, 150. bound by stipulations as to cultiyation, 117. sale of produce by, to be consumed on premises, 117. Shooting, reservation of right of, 63. lease of right of, must be by deed, 50, 51. right of, action lies for use and occupation of, 153. Shop, covenant to keep building open as, 123. SlQNATTJBE, . not necessary to leases by deed, 71. of agreement by party to be charged, 81. how may be effected, 82. Small Tenements, proceedings iu county courts for recovery of, 357 — 370. before justices for recovery of, 370 — 376. .to recover, under 19 & 20 Vict. c. 108, s. 50. .358. agaittst tenant holding over, 358 — 363. where annual value not exceeding 50Z., 358. plaint in county court, 358. joinder of claims in, 359. where title cornea in question, 360. ordinary relation of landlord and tenant must exist, 360. evidence for landlord upon, 361. cause to be shown by tenant, 362. judgment, 362. order for possession, 362. warrant for possession, 362. under 19 & 20 Vict. c. 108, b. 52. .363— 370, for non-payment of rent, 363. no formal demand of re-entry necessary, 364. proof by landlord, 364. protection of officers, 366. appeal, 366. under 1 & 2 Vict. c. 74. .370— 376. rent not exceeding 201., 371, 374. notice of intention to proceed before justices, 372. service of, 372. tenant to show cause, 371. proof required from landlord, 374. Special Case, on a question of law, under Agricultural Holdings Act, 1875, s. 36.. 241. judge "shall" grant, upon request, 241. in action of ejectment, under former practice, 351, 352. no provision made under new rules, 352. Digitized by Microsoft® INDEX. 495 SPEOiAi Case — continued. in action for the recovery of land, on appeal from county court to divisional court, 352, 353. time and form of notice of appeal, 353. notice not to operate as stay of execution, 354. security for costs by appellant, 354. ■when defendant, 354. must be presented to judge, 354. time, liovr limited, 354. procedure when not approved of by judge, 354. when parties do not agree, 355. on judge refusing to settle and sign, 355. form of, 355. procedure, 355, 356. Speoipio Pebfoemaitoe, of agreements for leases, 87. in writing, 87, 88. oral agreements after part-performance, 88. action for, 90. procedure when person directed to execute lease, refuses, 90. Spieittjai. Peesons, performing ecclesiastical duties, leases to, 47. SpOETIfK}, reservations and exceptions of right of, 63, 64. of, are re-grauts from tenant, 63. may be by parol in parol demise, 64. right of, lease of, must be by deed, 50, 51. construction of covenant for quiet enjoyment of licence, 103. when it remains in abeyance, 64. Stamps, 92 — 97. See Appendix (A). want of, on instrument of demise, 92. if unstamped instrument lost, 93. or destroyed, 93. amount of, regulated by act in force at' date of stamping, 93. on instruments having double operation, 93, 94. demising two distinct properties, 93. reserving distinct rents, 94. option to purchase, 94. on building leases, 94. where penalty rents involved, 94. necessary according to legal operation of instrument, 95. must cover aggregate rent, 95. on leases for three years, 95. on instrument increasing rent reserved by another instrument, 95. , effect of 39 Vict. u. 16, s. 11. .95. fresh, where instrument has been materially altered, 96. presumption as to, upon deeds, 96. production of counterpart, 97. on appraisement of distress, 181. replevin bonds exempt from duty, 193. ^ Digit&ed by Microsoft® 496 INDEX. Steajtgeb, distress by, illegal, 190. Steaw, distress of, 169. where to be impounded, 177. sale of, to be consumed on the premises, 183. taken in execution, sheriff bound by stipulations in lease, 117. custom of country as to, 227, 229, 230. construction of agreements as to, lll—IZZ. Steaweeeet Beds, outgoiug tenant ploughing up, guilty of "waste, 121. Steeet, distress may not be taken in, 172. SurFEEAUOE, tenancy at, how it arises, 2. cannot be assigned or conveyed, 2. effect on, of assent of landlord, 2, 3. receipt of rent by landlord, 2, 3. how determinable, 2. tenant at, cannot sublet, 22. effect of payment of rent by, 2, 3, 6. SmrsET, distress must be made before, 160. SUEETIES, for lessee, 74. for payment of rent, and performance of covenants, 74. by bond, 74. separate guarantee, 74. joining in lease, 74. liability of, how construed, 74. discharged, 74. as to admission of evidence of intention to become, 74. for costs and damages in action for the recovery of land, 274, 275. SUEEENDEE, what is, 195. express, must be by deed, 195, 196. cancellation of lease does not operate as, 196. no technical words necessary to, 196. implied, 195, 196. by acts which constitute, 196. granting a new lease, 196. creation of inconsistent relationship, 197. acceptance of keys, by landlord to resume possession, 198. not effected by giving up portion of premises with propor- tionate reduction of rent, 197. effect of, 198, 199. on liability of tenant, 198, 199. undertenant, 199. underleases, 199. for renewal, 199. Suspension of rent on eviction from part of premises, 145, 146. Digitized by Microsoft® INDEX. 497 Tah., Tenant in, leases by, 10 — 15. feme covert, needs husband's ooncmTeuce, 13. infant, 13. lunatic, 13. not in pursuance of statutes or power to lease, 14, 15. confirmation of, by issue in tail, 14, 15. after possibility of issue extinct, leases by, 18. Taxes, property tax, may not be subject of direct contract, 130. is payable by landlord, 130. if paid by tenant, may be deducted from rent, 130, 145. stipulations and provisoes relating to, 130, 131. for payment of rent without deduct- icg, void, 130. unless landlord agree to pay tenant amount of tax, 131. what payable by landlord, 131. reservation of "net rent" implies tenant's liability to pay, 132. covenant to pay, 132. "all taxes," 132. "aU parliamentary taxes," 132. "all taxes, parliamentary and parochial," 133. "taxes on the land," 133. "taxes and assessments," 133. "charges," 133. "outgoings," 133. "public taxes, charges and assessments," 133. "parochial taxes and assessments," 133. how far future impositions included, 133. landlord's liability to pay laud-tax, 135. how limited, 135. taxes not extended to increased value, 135. tenant's remedies for recovery of taxes paid, 135, 136. Tenahot, of hiring land defined, 1. different Muds of, 2. at sufferance, 2. defined, 2. how it arises, 2. determines, 2. cannot be assigned or conveyed, 2. effect of payment of rent upon, 2, 3, 6. landlord's assent upon, 2, 3. E. & L. K K Digitized by Microsoft® 498 INDEX. Tenancy — continued. at will, 2, 3. " how created, 3. determitied, 3, 4, 269. effect of payment of rent upon, 3, 4, 6. from year to year, 2, 4. defined, 21. how it arises, 4. by express contract, 5. a general letting, 5. impUcation of law, 6. tenant holding over, 6. entry under inoperative contract, 6. upon a purchase which goes off, 7. payment of rent, 7, 269. in case of corporations, 7. mere occupation will not create, 7. how determinable, 4, 206, 269. for years, 2. defined, 9. for parts of a year, 9. half a year, 9. how determined, 9, 375. three months, 9. how determined, 9, 375. one month, 9. how determined, 9, 375. from week to week, 9. how determined, 375. for optional periods, 195. how determined, 195. contract of, 1, 2. by lease, 50 — 52. essentials of, 52. agreement for a lease, 53, 64, 76 — 92. . proof of, in action for the recovery of land, 269. determination of, 195 — 214. by effluxion of time, 195. merger, 195. surrender, 195. disclaimer, 199. forfeiture, 200. notice to quit, 206. Tenant, 1. at sufferance, 2. cannot sublet, 22. may be ejected without demand, 2, payment of rent by, effect of, 2, 3, 6. landlord's assent to possession of, effect of, 2, 3. Digitized by Microsoft® IMDEX. 499 Tbnaut — continmd. at win, 2. cannot sublet, 22. constituted by entry under a void lease, 4. holding over by, eflfeot of, 2. payment of rent by, effect of, 3, 4. not liable for permissive waste, 119. light of, to emblements, 224. from year to year, 2. holding over by, efBeot of, 2. mere occupation will not constitute, 7. leases by, 21. underlease by, 265. underletting from year to year, 156. may distrain, 156. not liable for permissive waste, 119, 239. for years, 9. liable for permissive waste, 119. for less than a year, 9. may sublet unless restricted by agreement, 21, 22. in fee simple, 1. extent of estate of, 1, 12. leases by, 12. in tail, leases by, 12 — 15. feme covert, needs husband's concurrence, 13. infant, 13. lunatic, 13. not in pursuance of statutes, or power to lease, 14, 15. confirmation of, by issue ia tail, 14, 15. after possibility of issue extinct, leases by, 18. for Ufe, leases by, 15. confirmation of, by reversioner, 15. right of, to emblements, 224. liable for permissive waste, 119. pur autre vie, leases by, 18. in common, estate of, defined, 23. leases by, 23. distress by, 159. payment of rent to one of two, 142. after notice, 142. remedies of, for recovery of taxes, 135, 136. irregular, excessive or illegal distress, 188 — 193. wrongful distress in metropolis, 193, 194. selling distress before time, 182. after tender of rent, 186. not selling distress for best price, 182, 183. by action of replevin, 191 — 193. upon breach of covenant for quiet enjoyment, 101. to repair, 112, 113. K li 2 Digitized by Microsoft® 500 INDEX. Tenant — continued. compensatioii to, for improvements under 38 & 39 Vict. c. 92 . . 233. of first-olass, 234. second-class, 235. third-class, 236. not allowed where tenant takes exhausting crop, 236. for breaches of covenant, 237. deductions from, 235 — 238. liabOities of, to third persons for damage or nuisance. 111. unless lease an authority to create a nuisance, 112. for waste, 118, 119. voluntary, 119. permissive, 121. under 38 & 39 Vict. c. 92. . 122, 238. for holding over, 241. for damages and costs incurred thereby by landlord, 241, 242. one of two, with assent of other, 242. without assent, 242. may be expelled by landlord, 242. caimot treat rightful owner entering as a trespasser, 242. in action of ejectment, 243. for double value, 243 — 245. double rent, 245, 246. for act of Ms sub-tenant in holding over, 242. duty of, to preserve boundaries, 116. encroachments of, presumed to be for landlord's benefit, 116. Tenant's FixTxrEES, distinguished from landlord's by removability, 221. what are, 221. mortgage of, by tenant, 223. Tenants in Common, estate of, defined, 23. leases by, 23. payment of rent to one of two, 142. after notice, 142. distress by, 159. Tenants in Tail, 1 by, 12—15. feme covert, needs husband's concurrence, 13. infant, 13. lunatic, 13. not in pursuance of statutes or power to lease, 14, 15. confirmation of, by issue in tail, 14, 15. after possibility of issue extinct, 18. Digitized by Microsoft® INDEX. 501 Teniee, of amends before action for irregular distress, 189. rent, 186. of rent, what constitutes, 186. to whom to be made, 186, 187. effect of, before seizure under distress, 186. after seizure, before impounding, 186. impounding, 186. Teem, meaning of a, 9. Testamentaet G-tjaeeiau, leases by, 38. TiLLAaES, compensation for, 227 — 233. landlord liable to outgoing tenant for, 232, 233. TlHBEE, what trees are, 120, 121. felling, when waste, 121. tenant may cut, to keep up walls, pales, fences, &c., 116. for necessary botes, unless expresslyrestrained, 121. exception of, in lease, 62. construction of, 62. Tithe Rent-ohaege. payable by landlord in absence of agreement, 131. UabOity for, may be varied by contract, 131. when may be deducted from rent, 131. left unpaid by outgoing tenant, remedy for, 131. recoverable by distress, 131. what words include, 133. Tithes, may be demised, 49. Title, covenant for good, words of demise in deed implying, 99. Title Deeds, covenant to produce, runs with land, 249. Title Paeajsiount, eviction of tenant by, 102, 146. efiect of, 146. from part only of premises, 146. effect of, 146. Teade, covenant in restraint of, 85. to carry on a specific, 123. not to carry on an offensive, 124. how construed, 124. against a particular, 125. construction of, 125. how broken, 126. runs with the land, 249. meaning of word in restrictive covenants, 124." offensive, what is an, 124. Digitized by Microsofi® 502 INDEX. Teade FixrtiEBa, what are, 218, 219. test as to removability of, 218. Tbbes, what are timher, 120, 121. fruit, waste by tenant in respect of, 121. exception of, in lease, 62. construction of, 62. voluntary waste in respect of, 121. Teiai,. See Appeai — Application for New Trial ; and see Ebooveey OF LiNB, Action fob the. Tbustees, leases by, 10. of bankrupt, property vests in, 35, 262. may disclaim onerous leaseholds, 47, 199, 263. after discharge, cannot be ordered to pay rent, 264. leases by, 35. to, 47. of charities, leases by, 33, 34. to, 46. must accord with Mortmain Acts, 46. of friendly societies, leases to, 46. public baths and washhouses, leases to, 46. societies for religious or educational purposes, leases to, 46, 47. settled estates, leases by, 18. effect of Settled Estates Act, 1877. .18. powers of leasing given to, 18. not annexed to the estate, 19, 20. TuEKiPS, may be claimed as emblements, 225. Undeelease, distinction between, and assignment, 20, 253. when amounting to an assignment, 265. by tenant from year to year, 21, 265. mortgage of leasehold by way of, 265. is defeated by forfeiture of original lease, 206. determination of, 195. how affected by merger, 195. surrender, 199. Uniieelessee, liability of, for breach of covenants in original lease, 265, 266. to distress by superior landlord, 266. not destroyed by surrender or merger, 199. relation between, and original lessor, 266. permitted by reversioner to hold over, becomes tenant at suf- ferance, 2. Undeelessoe, relation between, and his tenant, what, 265. Digitized by Microsoft® INDEX. 503 UHnEEWOODS, eonstruotion of exception of, in lease, 62. XJNrraiESiTiES, leases by, 32. Unstamped iNSTEUMENTa, how received in evidence, 92, 93. Unttsuai. Peovisoes, -what are, 85. Use, things in actual, cannot be distrained, 167. Use Airo Oooupation, action for, 151. ■when maintainable, 151. ■who may maintain, 152. lies against corporation occupying under parol, 153. for the enjoyment of a licence, 153. use of a ■watercourse, 153. a right of shooting, 153. a vein of minerals, 153. pasture and eatage of grass, 153. against occupier under treaty for sale, 152. Usee op Peemises, restrictions upon, 122. Usual OoTENAura, what are, 70, 82 — 84. UsTJAi, rEAST-DATS, meaning of, 137. Vacant Possession, what is, 293. service of writ in ejectment in cases of, 292. county court summons in cases of, 335. Vaitje, action for double, 243. VeebaIi Disclaimee will not work a forfeiture, 199. Veemhi, furnished house or lodgings rendered uninhabitable by, 101. may be thrown up by tenant, 101. Von) Lease, effect of acceptance of rent under, 6, 86. of inadequate amount of rent imder, 8. Waivee, of notice to quit, 213. by second notice to quit, 213. acceptance of rent, 213. distress for rent, 213. holding over, 213. mutual consent, 213. discharges surety for lessee from liability beyond original tenancy, 74. Digitized by Microsoft® 504 INDEX. Waivee — cont iniied. of forfeiture, 204. is only of past breaches, 205. by acceptance of rent due after forfeiture, 204. unqualified demand of rent due after forfeiture, 204, 205. of double value, 245. right to additional rent, 144. disclaimer, 200. Waeeamt, for possession of small tenements issued by county courts, 362. by justices, 371. WABEAiirr, as to condition, on lease of real estate, 100. furnished houses, 100. letting furnished apartments, 100. breach of, 100, 101. tenant's remedies for, 101. Waste, defined, 118, 119. voluntary, what constitutes, 119. all tenants liable for, 119. in respect of buildings, 119. land, 120. trees, 120, 121. fruit trees, 121. animals, 121. under Agricultural Holdings Act, 235. permissive, what constitutes, 119, 121. tenants for Ufe, or for years, liable for, 119. at will or from year to year, not hable for, 119. in respect of buildings, 121. injunction not granted against, 122. remedies for, 122. by action for damages, 122. injunction, 122, 281. under Agricultural Holdings Act, 122. non-cultivation is not, 122. by outgoing tenant, 121. Wastes, leases of, by lords of manors, 24, 25. encroachments upon, by copyhold tenant, 116. Watohihs Hate is payable by tenant, 132. Wateb, meaning of word in lease, 59. proper description of, 59. covenant to supply, runs with land, 249. Digitized by Microsoft® INDEX. 50,5 "Watee-couese, action lies for iise and occupation of, 163. Way, Ri&ht of, may be demised, 49. "Weeext Tenancy, length of notice required to determine, 375. WrLL, Tenant at, cannot sublet, 22. is not liable for permissive Tvaste, 119. right of, to emblements, 224. "Will, Tenancy at, how created, 3. determined, 3, 4, 269. effect of payment of rent upon, 3, 4, 6. WiNDiNQ-TJP, goods of a company priTJleged from distress on, 170, 171. Wood, grant of a, will pass soU, 50. Woods, exception of, in demise, 62. Woods and Foeests, Commissioners of, leases by, 26. Weit, in ejectment, when may stand in place of demand, 271, 272. form of, 283. indorsement on, 283. of joinder of claims, 283, 284. address of plaintiff, &c., 284. duration of, 285. renewal of, 285. concurrent, 286. parties, 286. description of, 286. property, 287. description of, 287, 288. service of, 288. when it may be effected, 289. on whom it may be effected, 288 — 293. how and where it may be effected, 289. Teae to Teae, tenancy from, what is, 4. how distinguished, 4. it arises, 4, 86. by express contract, 5. a general letting, 5. implication of law, 6. entry and payment of rent, 86. does not arise by payment of inadequate amount of rent under invalid lease, 8. it determines, 4, 5, 206. by notice to quit, 206. verbal disclaimer, 199. II. & L. Digitized by Microsoft® ^ ^' 506 INDEX. Teae to Teae — continued. tenant from, leases by, 21. obligations of, as to repairs, 104. fences, 104. liability of, for waste, 119. right of, to -underlet, 21, 265. distress by, 156. Yeaes, tenant for, leases by, 20. obligations of, as to repairs, 105. in case of accidental fire, 105. liability of, for waste, 119. THE END. PEIKTED Bl C. r. EOWOETH, EEEAM S EtJIlDINQS, CHAKOEEY LAKE. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® \^ nr\.lf(^hutJi , ,^jM^Affi