OFCAUFORjl^ 11 uvuBlv•l^!^>' ^-1^^^ ^-=' ® aOJIlVDJO'*^ 5^ »^5!rt!UMIVER% ^<«0JllVDiO'^ '^•tfOJITWJO^^ •^, / o '^r DNVSO\^ "^/iiliAINnJWV^ '^OJIIVDJO'^ ^^ ^flOJIlV3JO>^ "^TiUONVSOl^ ^»: _. "^.i^ "; \mmfh vjclOSANCflf/^ > ^.OFCAllfOftjj^ ^OFCAIIFO% 30 ~ .^JAEUNIVER^/A >}7a))VJKin.iwv //7iHV)ifln^^ v^pju'wa/w^ ln*i &Aavaan# " UNIVFRJ//, ^ ^lOSANcncr^ ^jjN^UBRm?/, -^^iUBRARYQ^ ^WEUNIVERS//i 3 o o T- C S i .HJii'ii-' ' Wo^Jfdll^ (J,((«^"m WOODFALL'S ^^iJ LAW OF Landlord and Tenant. ^jje Etjirtenitlj IStiition. J. M. LELY, Esq., OF THE INNER TEMPLE, BAUKISTER-AT-LAW ; EDITOR OP " HODGES ON RAILWAYS," ETC. FIRST AMERICAN, FROM THE THIRTEENTH ENGLISH, EDITION WILLIAM WEBSTER. Volume I. NEW YORK AND ALBANY: BANKS & BROTHERS, LAW PUBLISHERS. 1890. / r V, \ COPTRIGHT, 1890, By BAXKS & BEOTHERS. PREFACE TO AMERICAN EDITION. Woodfall's "Landlord and Tenant" was first pub- lished in 1802, remodelled in 1830, and the thirteenth English edition was issued in January, 1886. The high standing of this treatise in England and America makes any lengthy commendation on the part of the American editor unnecessary. The thorough, practical, and scientific character of the treatise, with the historical sketch it contains, gives it great value to any one desiring an accurate knowl- edge of this branch of the law. With the exception of statutory matter, easily distinguishable, the greater part of the principles laid down are law to-day in America. Statutes more or less diverse and other localisms exist in all the states, separating one from another almost as much as from England. It is the province of the American editor, so far as he may, to point them out and to explain, sustain, or qualify the doctrines of the text by the American decisions. This will relieve the practitioner, in part, from the labor of examining the local decisions. He has also added some topics in his notes which have never been adequately treated before ; as well as given a full discussion of all the more important points in land- lord and tenant law, with a view to making the trea- tise of the utmost value to the American bar. W. W. Boston', December, 1889. TABLE OF CONTENTS. [References are to the star paging.] FA6E Table of Cases cited ix List of Abbreviations .... 1 COLLECtlON OF LEADIXG PROPOSITIONS . . . liii CHAPTER I. — By whom Terms may be granted 1 II. — To whom Terms may be granted 68 III. — Of what Terms may be granted 79 IV. — Agreement for Lease 85 V. — The Lease : .... 124 Definition of Lease . 124 What Leases must be by Deed 127 Form of Lease 130 Construction .... 132 Premises demised . 138 Term granted .... 144 Reddendum .... 158 Express Covenants . 159 Implied Covenants . 172 Exceptions and Reservations . 177 Provisoes and Conditions 180 Indorsements, Schedules, &c. . 183 Stamp 184 Execution .... 188 Registry 191 Costs of Lease and Counterpart 195 Solicitors' Charges . 196 Entry of Lessee 197 " Void " or " Voidable " . 197 Leases under Powers 199 Leases in Reversion 210 Concurrent Leases . 211 VI TABLE OF CONTENTS. [References are to the star paging.] PAGE Estoppel .......... 213 Bond for Performance of Covenants .... 216 Rectification of Erroneous Lease . . . . .217 Cancellation of Lease for Fraud, Misrepresentation or Concealment . . 218 VI. — Tenancies for less Term than Years and Quasi Tenancies : Generally From Year to Year For less than a Year At will .... On Sufferance . Mortgagor and Mortgagee Master and Servant Vendor and Vendee VIL — Substitution of Parties to the Contract of Ten ANCY BY Assignments, &c. : Assignments generally . Contract for Assignment Assignment of Reversion Severance of Reversion . Assignment of Term Severance of Term . Sub-lease .... Attornment .... Executions .... Bankruptcy .... Marriage .... Death VIII. — Termination of the Tenancy Modes of Termination . When Term is limited conditionally Surrender Merger .... Forfeiture Relief against Forfeiture Notice to Quit Under Agricultural Holdings Act Notice to determine a Lease pursuant to a Power therein Disclaimer Death .... IX. — Rknkwai, of Leases, and of the Exercise of an Oi'TioN to Plrciiase 219 219 219 224 226 230 232 236 237 239 240 252 255 257 264 264 266 270 274 285 286 295 296 296 308 310 326 332 335 3.57 360 363 304 TABLE OF CONTENTS. Vll X.— XI.- XIL- XITI, XIV. xx XVI, [References are to the star paging.] Rent : Different kiiid.s of Rent . Reservations of Rent Penalty or Liquidated Damages AVhen Rent is due .... Payment of Rent .... Apportionment of Rent . Continuance of Lessee's Liability . Stipulation of Abatement in case of Fire Distress for Rent .... , &c. SERVATIOX OF -Remedies of Wrongful Distresses Replevin Action for Damages — Action for Rent .... — Use and Occupation — R.\tes, Taxes and Assessments . — Obligations with respect to the Pre THE Property, &c. : Express Contract to repair, &c. Implied Contract to repair, &c. Remedies for Breach of Contract Obligations to cultivate, &c. . Waste Fences and Party AValls Trees and Timber Fixtures ..... Survey and Valuation of Dilapidations, Fixtures, &c XVII. — Ordinary particular Covenants: Insurance against Fire Not to assign or sublet without Licence For Residence on the Premises .... For or against Particular Trades .... Dealing with Particular Persons .... Re-delivery of Fixtures, Goods, Part of the Land, &c, For Quiet P^ii joyment XVIII. — Rights of Common, Sporting, &c. . . . XIX. — Rights and Liabilities as between Landlord or Tenant and Third Parties XX. — Rights and Liabilities on Cesser of the Te.n.\ncy : . Tenant's Duty, &c., at end of Tenancy Consequences of holding over 375 379 300 394 39G 39G 407 410 411 499 521 528 535 554 587 596 599 603 605 613 616 620 647 651 656 663 663 672 673 674 684 732 740 743 Vlll TABLE OF COKTENTS. [References are to the Btar paging.] Double Value .... Double Reut .... Emblements Outgoing" and Incoming Tenants . Partial Occupation Table of Customs . Compensation for Improvements . XXI. — The Agricultural Holdings Act. 1883 XXII. — Recovery of the Premises by the Landlord By Proceeding in the High Court Under Order XIV. ...... By Proceeding in the County Court By Proceeding before Justices of the Peace XXIII. — Criminal Law: Letting infected House or Lodgings Letting House as Brothel Larcenj'^ by Tenants or Lodgers . Injuries to Buildings by Tenant . Forcible Entry and Detainer PAGE 74") 748 749 752 754 754 765 76!» 786 794 810 829 841 841 842 843 843 INDEX 848 TABLE OF AMERICAN CASES. [The references are to the bottom paging.] PAGE Abbot v. Hermon, 25, 29 V. K. C. & St. J. R. R., 1081 Abbott V. Allen, 270 V. Johnstown &c. R. R. Co., 28 V. Winchester, 71 Abeel v. Radcliff, 146, 147, 8:^0 Abercrombie v. Redpatb 404 Acker v. Wltherell, 388 Adams v. Goddard, 498, 952 V. La Comb, 683 r. Lee, 951 V. McKesson, 204, 205 V. Pease, 1082, 1083 V. Townsend, 164 Addleman v. Way, 935 Aiken v. Smith, 204 Ala. Gold Life Ins. Co. v. Oliver, 223, 404, 406, 621 Albany Inst, for Savings v. Bur- dick, 346, 347 Alexander v. Dorscv, 475 I'.Tolleston Club, 113,130, 251, 476 Allen V. Bartlett, 351, 354, 358 V. Culver, 265, 266, 274, 900 V. Kellam, 86 V. Kennedy, 955 V. Moony," 955, 957 V. Pell, 274, 824 V. Thayer, 831 Allenspach v. Wagner, 266 Almon V. Woodill, 231 Alston ('. Alston, 531 Alvord Carriage Co. ik Gleason, 958 Alwood V. Ruckman, 204, 205, 206 Ammidown v. Ball, 233 Amory v. Kannofsky, 481 V. Lawrence, 440 Anderson's Appeal, 710 Anderson i). Midland R. R. Co., 353 V. Prindle, 353, 474, 541 Andis V. Personett, 297 Ansley v. Peters, 387 Anthony v. Lapham, 1084 Antoni v. Belknaj), 957 Appeal of Stoughton, 68 Appeal of Winton, 265, 270 Applegate v. Crawford, 683 Arguello v. Kdinger, 157, 166 Armstrong v. Wheeler, 388, 415, 817 Ashbury Ry. Carriage & Iron Co. r. Riche, 122 Ashford v. Hack, 415, 816 Ashley v. Warner, 474, 476 V. Wolcott, 1080 Ashmun v. Williams, 957 Ashton V. Pryne, 160 Astor V. Lent, 82, 418 V. Miller, 87, 423, 425 Atkins V. Boardman, 291 V. Sleeper, 246, 555 Atkinson v. Lester, 1197 Atkinson's Heirs v. Lindsey, 459 Auer V. Penn, 481 Austin V. Hudson Riv. R. R., 1126 r. Rutland R. R., 1083 V. Sawyer, 230, 290, 935 V. Stevens, 5, 578 Avery v. Brown, 823 V. Pixley, 631 V. Stewart, 247 Ayer v. Bartlett, 935 Ayres v. Depras, 709 V. O'Farrell, 822 Babcock v. Scoville, 87, 388, 410, 415, 423, 425 Babington v. O'Connor, 262, 415 Bacon v. Bowdoin, 154 Bagley v. Fletcher, 61 Bailey v. Fillebrown, 290 V. Richardson, 495 V. Wright, 709 Bain v. Clark, 711 Baird v. Brown, 229, 290 Baker v. Adams, 593 V. Hays, 1197 V. Jordan, 290 V. Kennett, 61 V. McDowell, 289 Bald V. Hagar, 957 Baldwin v. Walker, 954 Ball V. First Nat. Bank, 459, 462 Ballard v. Walker, 149 Bancroft v. Wardwell, 383 Bangor v. Lansil, 1081 Bank of Augusta v. Earle, 123 Bank of Columbia v. Patterson's Admr., 25, 26, 28 TABLE or AMERICAN CASES. PAGE Bank of Penn. v. "Wise, 404, 4o5 Bank of U. S. )•. Dandridge, 25, 20 Baptist Churcii v. Mulford, 25 Barber r. Hose, 825 Barker v. Hayes, 1197 r. Mceli. Ins. Co., 28 Barkley r. Wilcox, 1081 Barlow v. Wainwriglit, 353 Barnes v. Boston & Maine R.R., 165, 166 Barnes v. Dean, 1132 Barnev v. Keith, 281 r.' Keokuk, 1082 Barstow v. Gray, 149 Bartels v. Creditors, 495 Bartlett r. Cowles, 72 V. Earrington, 631, 632, 821 V. Wood, 955, 959 Barton v. Smith, 383 Basconi r. Denipsey, 1118 Bass Foundry r. Gallentine, 959 Batciielder r. Batchelder. 474 Bates V. Boston &N.Y. Cent. R.R. Co., 24 Batterman ;-. I'ieree, 825 Bay State Bank v. Kiley, 543 Beiich V. Crain, 901 Beard r. Murpliv, 1081 Be.lford v. Terliune, 414, 426 Bedinger v. Wharton, 61 Beear v. Flues, 211 Beecher i\ Crouse, 64, C>A Beeler I'. Canhvell, 1197 Belknaj) v. Hastings, 709 Bellas V. Hays, 272 Benian i\ Kufford, 122 Benedict v. Benedict, 956 V. Lynch, 149, 164 Benner's Lessee r. Platter, 1082 Bennet v. Bittle, 6.32, 822 Bennock v. Whipple, 359, 475, 500, 1195 Benson v. Anderson, 719 V. Bolles, 401 V. .Chicago & Alton R.R., 1080 r. GottJKinier, 048 Berpongren v. Aldrich, 51, 161 Berkeley r. Smith, 1074 Berks. &r.. Hoad ,-. Myers, 26, 123 Benial r. Ilavious, 205 Bcrrie r. Woo.ls, 264, 266, 268 Berrv '•. Carle, 1083 I'. M'.Mullen, 262,265 Bettison r. Hudd, 837 Bevan v. Crooks, 691 Beyer r. Fenstennacher, 701) Bickfonl r. Page, 270 Bigelow /'. Collamore, 81(i r. Kiiini'V, 61 V, W'il.son, 246, 247 Billings V. Canney, Binns v. Hudson, Birch V. Linton, Birmingham r. Rogers, Bishop V. Doty, PAGE 155, 245 694, 710 60, 61 205, 648 204 Black r. Del. & Rar. Canal Co., 28, 122 V. Ligon, 52 V. The State, 1197 Blair v. Claxton, 821 Blake v. Coats, 205, 1126 V. Sanderson, 388, 410 Blanchard c. Ames, 130, 501 V. Baker, 1084 Blanche r. Bradford, 683 Blancke v. Rogers, 954 Blethen v. Towle, 957, 958 Blish V. Harlow, 549 Bliss V. Whitney, 955 Blood V. Spaulding, 917, 918 Blumenberg r. Myres, 414, 426 Blumenthal cBloomingdale, 212,224, 351 Board &c. i: Lafayette &c. R. R. Co., 122 Boehm v Rich, 481 Boggs V. Black, 567 Bold r. O'Brien, 284 Bolton V. Tomlin, 211 Bomier v. Caldwell, 166 Bond V. Ward, 647 Bonnecaze i'. Beer, 912 Bonney v. Foss, 359 Boody V. McKenney, 61 Bool r. Mix, 59, 61, 62 Bordman i\ Osborn, 619 Boreel v. Lawton, 821, 822 Borst I'. Emjiie, 291 Bosler v. Kuhn, 446 Boston V. Binney, 831 Boston Bank v. Chamberlin, 60 Boston & Wore. R. R. Co. v. Rip- ley, 631, 822 Bostwick V. Atkins, 60 V. Frankfield, 476, 495, 591 Botts V. Armstrong, 1196 Boucher v. Van Buskirk, 149 Boudette v. Pierce, 345 Boulton V. Blake, 410, 415, 629 Bowditcii v. Cliickering, 224 Bowe V. 11 unking, 282, 283, 913 Bowker v. Bradford, 71 Howlsby );. Speer, 1081 Bowser v. Scott, 658 Boyce v. Bakewell, 262,265, 388, 418 r. Brown, 1070 Boyd V. MeCombs, 593, (il9 Boynton v. Morgan, 632 Braddee v. Wiley, 404, 435 Bradish v. Sclienck, 203, 204 TABLE OF ATkrERICAN CASES. XI PAGE Bradley v. Covel, 630 V. Goicouria, 481, (531 V. Piggot, 050 V. Rici', 10H3 Brady v. Peiper, 274 Brakely v. Sliarp, 1090 Branger v. Manciet, 283, 284 Braxon v. Bressler, 1083 Brazier v. Ansley, 203 Breed v. Pratt, 77 Brelier v. Reese, 224 Brennan v. Jack, 830 Brewer v. Dyer, 387 V. Harris, 531 Brewing v. Berrymaii, 86, 211, 218, 235, 351 Brewster v. Miller, 283 Brick V. Mitldletun, 1190, 1275 Brick's Estate, 08 Bridger v. Pierson, 291 Bridgcrs v. Dill, 593, 048 Bridgham v. Tileston, 387 Briggs V. Hall, ()30 V. Large, 691, 719, 730 V. Oaks, 297 Brigham v. Hawley, ■ 822 V. Smith, 1072 v. Wheeler, 65 Brinley v. Mann, 24 Brinton v. Datas, 434 Brisban v. Boyd, 170 Brisben v. Wilson, 719, 730 Brook line v. Mackintosh, 1086 Brooks V. Wheelock, 144, 152 Brown v. Alfriend, 822 V. Duncan, 709 V. Fay, 694 V. Jaquette, 205 V. Keller, 500 V. Maine Bank, 247 V. Newbold, 917 I'. Sims, 691 V. Thnrston, 290, 1145, 1146 Brownell v. Welch, 542 Brudenell v. Vaux, 531 Bryant v. Tucker, 475, 500, 1195 Buck V. Dowley, 164 Buckley v. Russell, 154, 660 Bucknam ;.'. Bucknam 19 Buckner v. Jewell, 445, 446 Buckwalter v. Klehi, 459, 462, 591 Buffalow I?. Buffalow, 77 Bukup V. Valentine, 711 Bulkley v. Dolbeare, 1118 Bullock I'. Wilson, 1082 Bulmer v. Brumwell, U6, 347 Bunton v. Richardson, 373 Burba nk ;;. Dyer, 354 Burchard v. Rees, 709 Burden v. Thayer, 388, 404 FAOS Burdick v. Clieadle, 1128 Burnell's Estate, 459 Burns v. Bryan, 82 V. Cooper, 205, 404 V. Cox, 459 Burnsidc r. Twitchell, 956 Burrill c. Naliant Bank, 26, 27, 28 Burroughs r. Clancey, 823 V. Saterlee, 1094 Burt I'. State, 1275 Bush V. Coles, 289 Bussman v. Ganster, 1003 Butler r. Church, Kiti V. Kidder, 481 V. Page, 955 V. Peck, 1081 Butterfield v. Baker, 290 Butts V. Andrews, 178 ?!. Voorhees, 1274 Byrne v. Van Iloesen, 04, 67 Cadw^alader v. Tindall, 707 V. West, 77 Ciesar v. Karutz, 283, 823, 914 Cage V. Pliillips, 823 Cairo &c. R. R. Co. r. Wiggins Ferry Co., 358, 373 Caldcleugh v. HoUings worth, 730 Caldwell v. Julian, 1133 Calvert v. Bradley, 87, 424 Camden & At. R. R. Co. v. May's Landing, 122 Cameron v. Todd, 424, 817 Campan v. Sliaw, 68 Campbell v. Arnold, 1118 V. English, 67 V. Portland Sugar Co., 912, 1122 V. Proctor, 21, 22, 475, 500 Can. Perm. Loan & Sav. Soc, 87 Canal Bridge v. Gordon, 25 Canal Comm'rs v. People, 1061, 1082, 1083 Capen ?'. Peckham, 954 Cappes V. Sibley, 220 Carey v. Richards, 353, 354 Carhart v. Auburn -Gas Co., 1086 Carl V. Lowell, 1132 Cnrleton &c. R. R. v. Grand South Ry. Co., 28, 161 Carlilc's Appeal, 461 Carnavan r. Gray, 1132 Carpenter r. Gillespie, 648 i'. United States, 383 Carr v. Georgia R. R., 956 V. Wallace, 1055 Carrig v. Dee, 1074 Carroll v. St. John's Society, 122 Carson v. Blazer, 1082 V. Veitch, 837 Case V. Haight, 289 TABLE OF AMERICAN CASES. PAGE Bank of Tenn. r. Wise, 404, -loo Bank of U. S. v. Dandridge, 25, 26 Baptist Church v. Mulford, 25 Barber v. Rose, 825 Barker v. Hayes, lli^7 r. Mecli. Ins. Co., 28 Barkley v. Wilcox, 1081 Barlow v. Wainwright, 353 Barnes r. Boston & Maine R.R., 165, 166 Barnes v. Dean, 1132 Barney v. Keith, 281 V. Keokuk, 1082 Barstow ;•. Gray, 149 Barteis v. Creditors, 495 Bartlett v. Cowies, 72 V. Farrington, 631, 632, 821 V. Wood, 955, 959 Barton v. Smith, 383 Basooni ik Denipsey, 1118 Bass Foundry v. Gallentine, 959 Batclielder c. Batclielder 474 Bates V. Boston & N. Y. Cent. R.R. Co., 24 Batternian v. Pierce, 825 Bay State Bank v. Kiley, 543 Beach v. Crain, 901 Beard v. Murph}-, 1081 Bedford v. Terhune, 414, 426 Bedinger ;•. Wharton, 61 Beear v. Flues, 211 Beeclier v. Crouse, 64, (58 Beeler v. Cardwell, 1197 Belknap v. Hastings, 709 Bellas V. Hays, 272 Benian v. Rufford, 122 Benedict v. Benedict, 956 r. Lyncli, 149, 164 Benner's Lessee r. Platter, 1082 Bennet v. Bittle, 632, 822 Bennock v. Wiiipple, 359, 475, 500, 1195 Benson v. Anderson, 719 V. Bolles, 491 V. .Chicago & Alton R.R., 1080 i: Gottheinier, 048 Bergengren v. Aldrich, 51, 161 Berkeley v. Smith, 1074 Berks. &c. Road c. Myers, 26, 123 Bernal v. Ilavious, 205 Berrie v. AVoo.ls, 264, 266, 268 Berry r. Carle, 1083 r. M'MuIlen, 262, 2C)5 Bettison r. Biidd, 837 Bevan v. Crooks, 691 Beyer r. Fenstcrniachor, 709 Bickford r. Page, 270 Bigelow r. CoUainore, 816 r. KiniK'V, 61 i;. Wilson, 240,247 Billings V. Canney, Binns v. Hudson, Birch V. Linton, Birmingham v. Rogers, Bishop V. Doty, PAGE 155, 245 694, 710 60, 01 205, 648 204 Black r. Del. & Rar. Canal Co., 28, 122 V. Ligon, 52 V. The State, 1197 Blair v. Claxton, 821 Blake v. Coats, 205, 1126 V. Sanderson, 388, 410 Blanchard v. Ames, 130, 591 I'. Baker, 1084 Blanche v. Bradford, 683 Blancke v. Rogers, 954 Blethen v. Towle, 957, 958 Blish V. Harlow, 549 Bliss r. Wiiitney, 955 Blood V. Spaulding, 917, 918 Blumenberg v. JNIyres, 414, 426 Blumenthal r.Bloomingdale, 212,224, 351 Board &c. i: Lafayette &c. R. R. Co., 122 Boelmi 1! Rich, 481 Boggs V. Black, 567 Bold r. O'Brien, 284 Bolton V. Tomlin, 211 Bomier r. Caldwell, 166 Bond V. Ward, 647 Bonnecaze v. Beer, 912 Bonney r. Foss, 359 Boody i;. McKenney, 61 Bool V. Mix, 59, 61, 62 Bordman v. Osborn, 619 Boreel v. Lawton, 821, 822 Borst V. Kiiii)ie, 291 Bosler v. Kulin, 446 Boston V. Binney, 831 Boston Bank v Chamberlin, 60 Boston & Wore. R. R. Co. v. Rip- ley, 631, 822 Bostwick V. Atkins, 60 V. Frankficld, 476, 495, 591 Botts r. Armstrong, 1196 Boucher v. Van Buskirk, 149 Boudette ?j. Pierce, .345 Boulton I'. Blake, 410, 415, 629 Bowditch i\ Ciiickering, 224 Bowe V. Hunking, 282, 283, 913 Bowker ;'. Bradford, 71 Bowlsby V. Speer, 1081 Bowser v. Scott, 658 Boyce v. Bakewell, 262,205, 388, 418 1?. Brown, 1070 Boyd V. iMc{;oml)S, 693, 619 Boynton v. Morgan, 032 Braddee v. Wiley, 404, 435 Bradish v. Sclieiick, 203, 204 TABLE OF AMERICAN CASES. XI PAGK Bradley v. Covcl, 530 V. (loicouria, 481, (531 V. PiKgot, (550 V. liici', 1083 Brady v. I'eiper, 274 Brakely v. Sliarp, 1090 Branger v. Maiiciet, 283, 284 Braxon v. Bresslcr, 1083 Brazier v. Ansley, 203 Breed v. Pratt, 77 Breher v. Keesc, 224 Brennan v. .lack, 830 Brewer v. Dyer, 387 V. Harris, 631 Brewing v. Berryman, 86, 211, 218, 235, 351 Brewster v. Miller, 283 Brick V. Middleton, 119G, 1275 Brick's Estate, (58 Bridger v. Pierson, 291 Bridgers v. Dill, 593, (548 Bridgham v. Tileston, 387 Briggs i;. Hall, (530 V. Large, 691, 719, 730 V. Oaks, 207 Brigham v. Hawley, • 822 V. Smith, 1072 V. Wheeler, 65 Brinley v. Mann, 24 Brinton v. Datas, 434 Brisban v. Boyd, 170 Brisben v. Wilson, 719, 730 Brookline v. Mackintosh, 108(5 Brooks V. Whcelock, 144, 152 Brown v. Alfriend, 822 V. Duncan, 709 V. Fay, 694 . V. Jaquette, 205 V. Keller, 500 V. Maine Bank, 247 V. Newbold, 917 V. Sims, G91 V. Thurston, 290, 1145, 114(5 Brownell v. Welch, 542 Brudenell v. Vaux, 531 Bryant v. Tucker, 475, 500, 1195 Buck V. Dowley, 1(54 Buckley v. Russell, 154, 660 Bucknam v. Backnam 19 Buckner v. Jewell, 445, 446 Buckwalter v. Klein, 459, 462, 591 Buffalow V. Buffalow, 77 Bnkup V. Valentine, 711 Bulkley v. Dolbeare, 1118 Bullock r. Wilson, 1082 Bulmer v. Bruniwell, §46, 347 Bun ton v. Richardson, 373 Burbank v. Dyer, 354 Burchard v. Rees, 709 Burden v. Thayer, 388, 404 PAGB Burdick v. Cheadle, 1128 Burnell's Estate, 45!) Burns v. Bryan, 82 V. Cooper, 205, 404 V. Cox, 459 Burnside r. Twitchell, 956 Burrill v. Naiiant Bank, 26, 27, 28 Burroughs r. Clancey, 823 V. Saterlee, 1094 Burt V. State, 1275 Bush V. Coles, 289 Bussman r. (ianster, 1003 Butler V. Church, 166 V. Kidder, 481 1-. Page, 955 V. l>eck, 1081 Butterfield r. Baker, 290 Butts r. Andrews, 178 V. Voorhees, 1274 Byrne v. Van Hoesen, 64, 67 Cadwalader v. Tindall, 707 V. West, 77 Cffisar V. Karutz, 283, 823, 914 Cage V. Phillips, 823 Cairo &c. R. R. Co. r. Wiggins Ferry Co., 358, 373 Caldcleugh v. Hollingsworth, 730 Caldwell V. Julian, 1133 Calvert v. Bradley, 87, 424 Camden & At. R. R. Co. v. May's Landing, Cameron v. Todd, Campan v. Shaw, Campbell v. Arnold, V. English, V. Portland Sugar Co. V. Proctor, 21, 22, 475, 500 Can. Perm. Loan & Sav. Soc, 87 Canal Bridge v. Gordon, 25 Canal Comm'rs v. People, 1061, 1082, 1083 Capen v. Peckliam, 954 Cappes V. Sibley, 220 Carey v. Richards, 353, 354 Carhart v. Auburn -Gas Co., 1086 Carl V. Lowell, 1132 Carleton &c. R. R. v. Grand South Ry. Co., 28, 161 Carlile's Appeal, 461 Carnavan v. (iray, 1132 Carpenter r. Gillespie, 648 V. United States, 383 Carr v. (ieorgia R. R., 950 V. Wallace, 1055 Carrig v. Dee, 1074 Carroll v. St. John's Society, 122 Carson v. Blazer, 1082 V. Veitch, 837 Case V. Haight, 289 424, 122 817 68 1118 67 912, 1122 TABLE OF AMERICAN CASES. PAGE Casey v. Gregory, 404 V. Hanlon, 186 Caswell V. Districh, 204, 206 Cate V. Schaum, 719, 723, 724 Cates V. Wadlington, 1082 Cathcart v. Walter, 1196 Caverliill >: Orvis, 209, 474, 539 Central Mills v. Hart, 202 Cent. Railroad u. Claghorn, 123 Cent. R. R. Co. v. Valentine, 1070 Chadwick v. Woodward, 823, 919 Chamberlain r. Heard, 648, 649 Champlain & St. L. R. R. v. Val- entine, 1083 Chandler v. Thurston, 1145 Chapman v. Gray, 81, 82, 433 V. Kimball, 1083 V. Tlbbits, 68 Chase v. McDonnell, 204, 205 V. Wingate, 230 Chatfield r. Wilson, 1094 Cheney v. Newberry, 155 Cherry v. Stein, 1074 Chesley v. Welch, 358, 373, 1145 Chicago &c. R. R. Co. v. Linard, 205 Childress r. McGehoe, 1197 Childs V. Clark, 262, 414 Chiles V. Stephens, 1196 Chipman v. Emerie, 499, 619, 900, 1010 V. Martin, 709 Chissom v. Hawkins, 205 Chretien v. Crowlej', 348 Christian v. Dripps, 952 Christopher v. Austin, 273, 630, 631 (^hung Yow V. Hoj) Cliong, 3, 218, 551 Churchill v. Merchants' Bank, 531 City Chicago r. Laflin, 1083 City Lowell v. Spa aiding, 1128 Glamorgan v. Lane, 60 Clapp r. Paine, 473 V. Stoughton, 72 Clark V. Clark, 165 V. Fraley, 658 V. Keliher, 549 V. Midland Blast Furnace Co., 283 V. Smith, 473 V. Stringfellow, 1197 Clarke v. Millwall Dock Co., 690 ("larkson r. Skidmore, 87 Clary v. Owen, 952 Clason V. Bailey, 149, 150 (Cleaver v. Culloden, 957 Cleaves v. Foss, 150 Cleris r. Ticman, 1075 Cleves r. Willoughby, 214, 283, 308 Clinton Wire Go. r. Gardner, 358, 373 Clf.ugh V. Ilosford, 383 Coale V. Han. & St. Jo. R. R. Co., 935, 1126 Cobel V. Cobcl, 404 PAGE Codman i-. Hall, 18 V. Jenkins, 816 Coe V. Wilson, 290 CofBn V. Lunt, 352, 366 Cohen i-. Dupont, 630, 631 V. Kyler, 958 Cohn V. Smith, 648 Colburn r. Morrill, 630, 632 Cole V. McKey, 284 V. Roach, 957, 958 Coleman v. Bunce, 825 V. Keddick, 816 Coles V. Marquand, 682 CoUamer i\ Kelley, 414 Collins V. Hasbrouck, 414, 1010, 1195 V. Prentice, 1072 Colrick V. Swinburne, 1084 Colton V. Rookledge, 160 Comer v. Sheehan, 85, 86, 404 Comm'rs Canal Fund v. Kemp- shall, 1082, 1083 Connnonwealth v. Chambre, 531 V. Chapin, ■ 1061, 1082 V. Conway, 1196 V. Dudley, 1196 V. Rees, 1196, 1275 V. Shattuck, 1196, 1274 Concord Bank v. Bellis, 73 Condon v. Butt, 354, 358, 373 Gongdon r. Brown, 552 Conklin v. White, 481 Connah v. Hale, 691 Conn. Mut. Ins. Co. v. U. S., 86, 113, 481, 632 Connery ?'. Brooke, 1070 Connor v. Bradley, 499, 619 Conrad r. Smith, 415 Conro i\ Port Henry Iron Co., 26, 28 Conway v. Starkweather, 354, 358, 373, 709 Cook V. Bisbee, 252, 476 V. Champ. Trans. Co., 1126 V. Cook, 2, 22, 475 V. Soule, 826 Cooke i-. Thornton, 935 Coomb's Devisees v. Branch, 459, 462 Coon V. Brickett, 515 Cooney >-. Hayes, 387, 413 Cooper )•. McGrew, 204 Goppel's Estate, 462 Corliss V. McLagin, 960 Cornell r. Dean, 205 V. Moulton, 246, 247 Corper r. Johnson, 951 Gorrigan r. Kiernan, 65,67 Cosby r. Shaw, 901 Goulson r. Whiting, 481 County of Huron r. Kerr, 165 Gourrier r. Harker, 543 Gouts I'. Spivey, 048 TABLE OF AMERICAN CASES. XIU PAGE Cox V. Fenwick, 414, 415 V. Tlic State, 108:J Craig V. Leslie, 120 V. Meriine, 658 Cram v. Dresser, 822 Crawford v. Bugg, 266, 415 V. Loiigstreet, 25, 122 Creech v. Crockett, 474 Crenshaw v. Crenshaw, 958 Cresinger v. Lessee of Welch, 60 Cresson v. Stout, 960 Crews V. Mountcastle, 229 V. Pendleton, 289 Critchfield v. Remaley, 354, 358, 373 Crocker v. Hill, 912 Croff V. Ballinger, 1197 Croinelien v. Brink, 555 Croniie v. Hoover, 955 Crommelin v. Theiss, 830 Crooks V. Dickson, 816 Crosby v. Loup, 404, 406, 459 Cross V. De Valle, 120 V. Kitts, 1094 V. Marston, 954 V. Upson, 388 Crossfield o. Gould, 164 Crouch V. Wabash, St. L. & Pac. Ry. Co., 515, 1010 Crowe ('. Wilson, 5, 578, 930 Crowningshield v. Crowningshield, 77 Cruise v. Cliristopher's Adra'r, 77 Crump V. Morrell, 823, 914 Cubbins v. Ayres, 952 Culver V. Smart, 1 133 Cummings v. Winters, 552 Cummins v. Scott, 1197 Cunningham v. Baker, 205 V. Baxley, 462 V. Blake, 178 V. Holton, 352, 366, 387, 413 V. Horton, 367, 474 V. Lyon, 383 V. Pattee, 4, 17, 174,281,578 Curl V. Lowell, 367, 544 Curran v. Holyoke, 161, 165 Currier v. Earl, 367, 475, 500, 1195 V. Perley, 352, 366, 530 Curtis c. Galvin, 352, 366, 475, 1132 V. Herrick, 401 ' V. Hoyt, 957 I V. Treat, 366 • Cutting V. Dana, 149, 170, 272 Dainty v. Vidal, 188 Dakin v. Allen, 382 Dame v. Dame, 957 Danforth v. Schoharie, 25 Daniels v. Pond, 475, 929, 1119 V. Richardson, 72, 73 D'Aquin v. Armant, 434 PAGE Darling v. Kelly, 205 Darrak v. Baird, 952, 955 Daubuz (;. Lavington, 87 Dauphinais r. Clark, ' ()()3 Davidson r. Phillips, 1197, 1275 Davies v. Davies, 910 Davis V. Brocklebank, 1145, 114(i V. Getchell, 1084 V. Lewis, 52 V. Meyers, 648 V. Morris, 20, 414 V. Moss, 955 V. Murphy, 474, 539 V. Old Col. Railroad, 28, 122 V. Parker, 158, 181 V. Taylor, 952 V. Thompson, 352, 544, 1145, 1140 Davis' Adm'r r. Smith, 642 Dearborn I'. Wellman, 1118 Deaver v. Rice, 205 De Bow V. Titus, 1145 Decker v. Livingston, 72 De Forest v. Byrne, 1018 Degraffenreid v. Scruggs, 958 Delaney v. Root, 204, 1145 Delano i-', Montague, 358,373 Delashman v. Berry, 585 De Luze v. Bradbury, 1091 Demainville i\ Mann, 388, 425 Demarest t. WiUard, 265, 406 De Mott V. Hagerman, 203, 204, 206 Den V. Adams, 358, 373 V. Blair, 530 V. Blake, 530 Dennett v. Penobscot, 383 Dennis v. Dennis, 52 Dennison v. Kennedy, 161 V. Lee, 816 V. Smith, 1196 Dent V. Hancock, 720, 723 De Pere Co. v. Reynen, 410 Depuy V. Silver, 825 Despatch Line v. Bellamy Man. Co., 955, 959 Dewey v. Latson, 88 V. Payne, 388 De Witt V. Pierson, 631, 632 Dexter v. Manley, 130, 281 De Young v. Buchanan, 359 Dibble v. Dibble, 67 Dickerson v. Chrisman, 166 Dickinson v. Worcester, 1081, 1091 Dickson v. CoviTt, 160 Dillingham v. Jenkins, 81, 82, 402 Dil worth v. Fee, 1196 Dimmock r. Daly, 822 Dimock v. Van Bergen, 359 Dinehart v. Wilson, 200 Dingley v. Buffum, 387, 413, 955 Directors v. IMcBride, 272 XIV TABLE OF AMEPwICAN CASES. PAGi; Disselhorst r. Cadogan, 404 District of Corwin v. Moorehead, 957 Dixon V. Merritt, 61 V. Nic'colls, 205, 404 Doane v. Badger, 19 Dodge r. Lambert, 1018 Doe V. Horniblea, 119 V. Kuffin, 354 (I. Andrews i'. Taj'lor, 73 (/. Beiinet v. Murdock, 289 d. Cliff r. Connaway, 216 d. Heatlicote v. Hughes, 2, 354 d. Hovle V. Stowe, 61 d. Jarvis v. M'Cartli3% 404 d. Kemp v: Garner, 383 d. Macqueen v. Hunter, 354, 593 d. Mayor, &c., of St. John i\ Roe, 498. 1195 d. Parkinson v. Haubleman, 220, 351, 473, 539 d. Pennington r. Tauiere, 354 d. Peters v. Pelletier, 354, 359 (/. Smith r. Snarr, 87 Donaldson v. Likens, 547 Donkersley r. Levy, 482 Doolan v. McCauley, 462 Dorrance v. Jones, 388, 418 Dorwm i'. Potter, 825 Dotey V. Gillett, 481 Doty r. Burdick, 600 Douglass V. Geiler, 2 I'. Massie, 459 V. Murphy, 415 V. Spears, 149 Doupe V. Genin, 283, 284 Dove V. Dove, * 387 Downard !•. Groff, 86 Drake v. Chicago R. R. 11 18 V. Cockroft, 822 Drakford -•. Turk, 86 Dubois V. K( lly, 956 I'. Van Orden, 817 Ducey Lumber Co. i*. Lane, 350 Dudding v. Hill, 831 Duffield r. Whitlock, 144 Duke V. Hague, 1", 130 1'. Harper, 353, 500 Dumn c. Rothermel, 351 Duini I'. Howard, 161 (,-. JalTray, 252 V. Rector, 25 Dunne t;. Trustees of Schools, 542, 544 DuMiiing V. Finson, 382, 1195 Diiniiit r. I.Mddell, 1075 Dunlin V. Hill, 59:5 Durcl V. IJoisblanc, 1070, 1075 Durfee r. Ohl Col.&c. R. R. Co., 122 Duryee v. Turner, 619 Diistin V. Cowdrey, 11''3 Dutton V. Colby, 300 PAGB Dutton V. Gerrish, 282 c. Tracy, 1197 Dwight V. Cutler, 350, 383 Dwight Print. Co. v. Boston, 1086 Dworak v. Graves, 205 Dyett V. Pendleton, 273, 630, 631, 913 Eagle v. Swayze, 284, 913, 917 Eagle Fire Ins. Co. v. Lent, 59 Eakin v. Brown, 913 Fames v. Mavo, 648 Earl V. De Hart, 1080 East Aug. Ky. Co. v. East Co. Ry. Co., 122 East Co. Ry. Co. r. Ilawkes, 122 Easton v. Mitchell, 252, 475 Eaton V. Dugan, 816 V. Jaques, 87, 424 Eberts r. Fisher, 19, 498, 1004 Ecke V. Fetzer, 264, 266, 268 Ecker v. C. B. & Q. R. R. Co., 418 Edgarton v. Page, 632, 822 Edwards c. Gale, 272, 273, 911 V. Hale, 358 V. N. Y. & Harlem R. R. Co., 283 Effinger v. Lewis, 263, 476 Ela r. Card, 73 Eliason v. Henshaw, 170 Elliott V. Aiken, 481, 632, 822 V. Stone, 474, 539 Ellis r. McCorraick, 274 V. Paige, 352, 366, 367, 544, 1145, 1146 Elwes r. Britrg Gas Co., 229, 289 V. Mawcs, 955, 956 Ely V. Ely, 1003 V. Sprague, 123 Emeret's Estate, 462 Emerson v. Spicer, 65, 68 Emmes v. Feeley, 476 Ennnons v. Scudder, 359 English V. Kev, 619 Enrich v. Riciiter. 1080 Enright v. O'Loghlcn, 8, 202 Ensminger i\ The People, 1083 Kplev r. Eubanks, 404 Erb V. Sadler, 693 Erwin v. Olmsted, 19 Esdon V. Colburn, 205 Estep V. Estej), 284 Estes V. Kelsev, 1132 Estey r. Baker, 373, 475, 500, 1132 Eten V. Luyster, 491 Etheridge v. < »sl)orn, 631, 824 Evans v. Hastings, 639 V. Herring, 709 Everett r. Neff, 710 Ex pnrtp.^)i'ni\, 247 Faxon, 446 Fuller, 440 TABLE OF AMERICAN CASES. XV PAGE PAOK Ex parte Graffenreid, 67 Foote V. Colvin, 203, 204 Houghton, 445, 446 Forbes v. Connolly, 186 Mclican, 87 V. Smiley, 481 Forge V. Reynolds, 470 Faiinnestock v. Faustenaucr, 530 Fort V. Brown, 289 Failing v. Schenck, 6, 202, 594 Ft. Dearborn Lodge v. Klein, 1133, Fairbanks v. I'liclps, 130, 210 1197 V. Williamson, 266 Foss V. Crisp, 120 Fairfax Devisee v. Hunter's Foster V. Essex Bank, 28 Lessee, 120 V. Kclsey, 1196, 1275 Fairis v. "Walker, 958 V. Peyser, 282, 283 Faler v. Mcllae, 81, 82, 462 V. Wheeler, 155 Farley v. Craig, 425 Fougera v. Cohn, 220, 354 V. Thompson, 406, 621 Fowke V. Beck, 383 Farm. & Mech. Bank v. Ege, 404, Fowler v, Bott, 642 406, 435, 621 V. Hawkins, 205 Farmers' Bank v. Leigh 424 V. Shearer, 73 V. Mut. Asso, Soc. &c., 262, 404 Fox i». Corey, 830 Farmers' Loan &c. Co. V. St. Jo. V. Southack, 119 & Den. City R. R. Co. 220 Franklin v. Brown, 481, 823, 919 Farquhason v. Williamson, IGl, 100 Eraser v. Drynan, 31, 130, 252, Farrar v. Chaiiffetete, 951 476, 1126 Farrington v. Kimball, 816 ?'. McFatridge, 719 Farwell v. Easton, 1018 Frazier v. Hastier, 1196, 1275 Fenton v. Montgomery 917 Freeman v. Nichols, 62 Ferguson i'. Bell's Adm'r, 60 V. Underwood, 74, 203 V. Savoy, 203 French v. Fuller, 1118 Ferrall v. Kent, 204 Eretton v. Karcher, 719 Fetters v. Humphrey, 1070, 1072 Frost V. Raymond, 281 Field V. Sehieffelin,' 64, 67, 68 Front V. Hardin, 205 Fife V. Irving, 709 Frue V. Houghton, 149, 272 Fifty Associates v. Howland, 498, 1132 Fry V. Jones, 205, 658 V. Tudor, 1074 EuUam v. Stearns, 955 Files V. Magoon, 935 Fuller V. Ruby, 631, 632 Fillebrown v. Hoar, 630, 821 ('. Tabor, 957 Fiquet v. Allison, 205 Fulton V. Stuart, 426 First Parish in Sutton v . Cole, 26 Fish V. Dodge, 1123 Gaffield r. Hapgood 958 Fisher i\ Lighthall, 283 Gage V. Bates, 499, 619 V. MiUiken, 642 Galbraith r. Irving, 387, 406 V. N. Y. C. & H. R. R. Co., 122 Gannon v. Hargadon, 1081 V. Saffer, 957 Ganson v. Tifft, 20, 414 Fiske V. Framingham Man. Co., 202, Gardiner v. Parker, 956 594 Gardner v. Keteltas, 281 Fitchburg &c. v. Melven, 4, 273, V. Weaver, 1072 630, 821 Garner v. Cutting, 648 Fitzgerald v. Beebe, 030 V. Hannah, 837 Fitzhugh V. Wilcox, 76 Garvey v. Colcock, 25 Fitzpatrick i'. Childs, 566 Gasco V. Marshall, 957 Flagg V. Badger, 5 Gaskill V. Trainer, 499, 619 v. Worcester, 1081 Gas Light & Coke Co. V. Towse, 161 Fleckner v. U. S. Bank, 24,25 Gates ?'. Green, 348, 642 Fletcher v. M'Farlane, 262, 265, Gault V. Jenkins, 1132 415, 816 Gavitt V. Chambers, 1083 V, Phelps, 1083 Gayetty v. Bethune, 1072 Flood I'. Flood, 373, 831 Gay, Petitioner, 81, 82, 462 Floyd V. Storrs, 191 V. Kingsley, 71 Folsom V. Moore, 957 Gee V. Young, 1145 Folts V. Huntley, 5, 253, 476 Geer r. Fleming, 205 Foltz V. Prouse, 404, 459 Geiger v. Braun, 353 XVI TABLE OF AINIERICAN CASES. PAGB Geiger v. Green, 149 Geiger's Adm'r v. Harraan's Ex'r, 650 Genau v. Dist. of Columbia, 916 Genet v. Tallmadge, 66, 67 Gerber v. Grabel, 1074 German v. Machin, 149 Gibbons v. Dayton, 639 Gibbs V. Williams, 1081 Gibson v. Farley, 459 V. Mullican, 420 V. Perry, 642 V. Tong, 1197 Gilbert v. Port, 1003 r.Wasli. City fec'R. R. Co., 99, 100 Gildersleeve v. Ault," 690 Giles 1-. Hays, 709 Gilliooley r. Washington, 631 Gill V. Bicknell, 144, 150, 168 V. Middleton, 224, 284 r. Pinney's Adm'r, 459 Gillespie v. Thomas, 816 Gilham v. Madison R. R. Co., 1081 Gilliam v. Tobias, 694 Gillis V. Morrison, 282, 481 Gilniore v. Pope, 123 Gilmour v. Adm'rs of Kay, 120 Glenn v. Howard, 440 V. Thompson, 549 Globe Marble Co. v. Quinn, 952 Godlcy V. Hagerty, 1122 Goldsmith v. Wilson, 426 Goodenow v. Allen, 366, 367 V. Kilby, 382 V. Pike, • 1195 Goodfellow V. Noble, 351, 352 Gordon v. Preston, 123 V. Sims, 150 V. Stockdale, 205 Gore V. Brazier, 630 Gormlcy r. Sanford, 1081 Gould V. Boston Duck Co., 1084 V. Thompson, 382, 383 Govcrneur's Ileirs v. Robertson, 120 Grannis v. Clark, 281 V. Delvin, 4 Grant v. Marshall, 552 V. Whitevvell, 648 Grau V. McVicker, 308 Graves v. Bordan, 273, 281, 283, 475 V. Porter, 415 Gray v. Fineli, 1196 V. MoLelian, 957 i\ Rawson, 082 Greason v. Koteltas, 51, 52 Gt. North. Ry. Co. li.East Count. R. Co., 122 Green v. Green, 81, 82, 462 V. MasKic, 404, 459 Grecnby r. Wileoi-ks, 270 Grecnleaf v. Allen, 388, 415, 817 PAGB Greenleaf r. Francis, 1094 Greenvault v. Davis, 631 Greer v. Wroe, 1196, 1274, 1275 Gregg V, Currier, 459, 461 Grier v. Cowan, 658 Griffin r. Ransdell, 955, 957 I'. Rochester, 350 Griswold v. Butler, 76 V. Frink, 459 Gross I'. Fowler, 531 Grosz r. Jackson, 952 Groustra v. Bourges, 475 Grove v. Hodges, 214, 272, 308 Gruenewald i'. Schaales, 474, 541 Grundy v. Martin, 17, 549 Guest V. Opdyke, 204 V. Reynolds, 1074 Gunn V. Sinclair, 474, 541 Guthman v. Castleberry, 825, 912 Guthrie r. Jones, 951, 952 Guy V. Rankin, 690 Hackett v. Amsden, 954, 956 Hadden v. Knickerbocker, 694 Hagan v. Gaskill, 491 Hague V. Harmony Grove Ceme- tery, 178 Haight V. Keokuk, 1082 Hale V. Burton, 650 Haley v. Boston Belting Co., 308 Hall V. Comfort, 87 V. Jacobs, 831 V. Myers, 354 V. Wadsworth, 353, 354 Hallett V. Wylie, 154, 155, 642, 816 Halliday v. Marshall, 387 Halligan v. AVade, 630, 631, 913 Ham V. Ham, 67 Hamblett v. Bennett, 203 Hamilton v. Huntley, 954, 959 V. Lane, 71 V. Read, 414, 495 Hammon v. Douglass, 212, 352, 353, 354, 359, 366 Ilanchett v. Whitney, 354, 530 Ilandershott r. Calhoun, 404 Hankins v. Kimball, 401 Ilannen v. Ewalt, 69, 266, 416 Hansen ?•. Dennison, 206 V. Meyer, 265, 270 Hardin v. Major, 531 V. Pulley, 350 Hare v. Celey, 203, 204, 206 V. Pearson, 203 Ilarkness v. Sears, 956 Harlan v. Lehigh Coal & Nav. Co., 283 Harley v. Weatliershee, 684 Harris v. Gillingham, n;)2 Harrison v. Ricks, 204, 205, 200 TABLE OF AMERICAN CASES. XVU PAGE Harrison v. Smith, 955 Harrow v. Baker, 1276 narrower v. Heath, 204, 20(5 Hart ;;. Baker, 205 V. Hyde, 1118 Hartley v. Jarvis, 711 Haseltine v. Ausherman, 648 Haslage v. Krugh, 404, 459 Hasty V. Wheeler, 930 Hatch V. Sykes, 86 Hatohell v. Kimbrougli, 205 Hauck V. Stauffer, 461 llauxlmrst v. Lobree, 373 V. Somers, 473, 540 Haverstick v. Sipe, 1075 Hawes v. Shaw, 632 Hayden v. Bradley, 912 V. Dutcher, 1074 V. Lucas, 168 V. Madison, 25, 29 t'. Middlesex Turnpike Co., 25 V. Shiff, 434 Hayes v. Ferguson, 1003 Hayiier v. Smith, 630 Haynes v. Bennett, 61 Hays I'. Doane, 958 Hayward v. Hayward, 72 Hazeltine v. Colburn, 352, 366 Hazlett V. Powell, 283, 642, 1074 Head v. Prov. Ins. Co., 25 Heald v. Build. Ins. Co., 205, 290 Heath v. William, 2 Hecht V. Dettman, 86 Iledderich v. Smith, 955 Hedges v. Riker, 51, 52 Hcffner v. Lewis, 952, 959 Heinphill v. Flynn, 358 Helser v. Pott, 657 Hendricks v. Judah, 446 Hendrickson v. Hendrickson, 1196, 1274 Hendrix v. Hendrix, 459. Hendy v. Dinkerhofl, 959 Henry v. Clark, 1196 V. Jones, 247 Herr v. Slough, 935 Herrell v. Sizeland, 366, 381, 542, 544 Herron v. Gill, 648, 694 Hesseltine v. Seavey, 481 Hetrich v. Deachler, 1084 Hexter v. Knox, 912 Hey V. Bruner, 952 V. McGrath, 353 Hicks V. Chapman, 68, 77 V. Martin, 426 V. SiUiman, 1081 Highley v. Barron, 60, 61 Hilborne v. Brown, 952, 957 llilbourn v. Fotrg, 2, 22 Hildreth v. Camp, 1196 Hill V. Bishop, V. Sewald, V. Slmltz, V. Wentworth, V. Woodman, Hilliard v. Gemmel, Hilsendegen r. Sciieich, Hingham v. Sprague, Ilintze V. Thomas, Hoag V. Carpenter, Hoagland v. Crum, Hobbs V. Davis, Hodges V. Howard, PAGE 273 951 233 954, 955 284, 816, 930 354, 359 297, 499 29 415 482 8, 8:U> ■ 648 146, 191 Hodgkins v. Jordan, 1190, 1275 V. Price, 1276 Hogsett I'. Ellis, 350, 383 Holbrook i*. Chamberlin, 959 V. Young, 631 Holderness v. Lang, 930 Holland v. Brown, 650 Hollenback (,-. McDonald, 81, 235 Ilolley V. Young, 154, 348, 585 IloUis V. Pool, 474 Holmes v. HoUoway, 1197, 1276 V. Seely, 64, 68, 1072 V. Tremper, 956 Homan v. Liswell, 247 Hooker v. Cunimings, 1061, 1082 Hopkins v. Calloway, 1196, 1197,1275 V. Gilman, 147, 158, 578 V. Hopkins, 406 Horn V. Bowen, 462 Horner v. Leeds, 5, 252 Hoskins v. Rhodes, 205 Ilougan V. Mil. & St. Paul R. R., 1094 Houghton V. Moore, 231 Houghwout i\ Boisaubin, 17C House V. Metcalf, 1123 Howard v. Doolittle, 283 V. Merriam, 475 V. Murphy, 822 V. Ransom, 831 Howe ('. Howe, 76 Howell V. M'Coy, 1086 V. Ripley, 88 Howe Machine Co. r. Sloan, 691 Howland v. Coffin, 404, 817 Iloyt V. City of Hudson, 1080 i\ Hilton, Cm V. Stoddard, 445 I'. Wilkinson, 62 H. R. E. B. B. Asso. v. Cochran, 648 Hubbard v. Goodwin, 120 ?'. Town, 1074 Hubbell V. E. Cambridge Five Cent Sav. Bk., 951 Huckabee v. Billingsly, 52 Huff V. Shepard, 144, 147 Hughes I'. Holmes, 31 ^'. Vandstone, 283,286,917 XVIU TABLE OF AMERICAN CASES. PAGE Hughes V. Young, 837 Hughes' Minors' Appeal, 68 Hull V. Burns, 900 Humplirey c. Wait, 284, 913 Humphries r. Humphries, 353 ,366,544 Humphrys v. Newman, 956 Hunt V. Aniidon, 837 r. Bailev, 359 r. Danforth, 264,266, 268, 416 V. Gardner, 816 V. Holden, 531 V. Morton, 354 V. Spencer, 160 V. Warnickes' Heirs, 119 Hunter i-. lleiley. 824 V. Whitfield, 684 V. Whitman, 648 Hurd V. Gushing, 252, 476 V. Davis, 691 Hurley v. M'Donell, 209, 211 Hurst V. Rodney, 817 Hutchins r. Shaw, 956 Hutchinson v. Boulton, 161, 186 Huth V. Carondelet M. Ey. & Dock Co., 60 Huyser v. Chase, 353, 362, 474, 541 Hyatt V. Wood, 1132 III. Land & Loan Co.r.Beem, 61,62 Ind. &c. R. R. Co. v. Cleveland R. R. Co., 426 Ingraham r. Wilkinson, 1082 Inlibts. of Ahia c Plummer, 150 Inlihts. of liarnstable v. Thacher, 350 Inhbts. of Deerfield v. Arms, 1082 inhbts. of Franklin v. Fisk, 1081 Inhbts. of Hingham v. Spraguc, 130, 1118 Inman v. Camp, 141 In re Bowes, 82, 464 Commercial Bulletin Co., 445, 446 Dowd, 443 Frynan's Estate, 678 Haisley, 264, 266, 268, 416 Hamburger & Frankel, 445 Ives, 445 Kniglit, 82 Laurie, 445 Lucius Hart Man. Co., 445 Merrifield, 446 Rose, 445 Ten Eyck, 445,446 Walton, 445 Wasld)urn, 445 Weill), 446 Wheeler, 445 Willis, 375 Ins. Co. V. Nat. Bank, 353, 354, 359 Iron M. & H. R. R. v. Jolmson, 1 197 Irvine v. Irvine, 60 Irving V. Thomas, Ives V. Ives, V. Van Auken, V. Van Epps, PAGE 348, 593 1132 291 825 Jackmon v. Arlington Mills, 1086 Jackson v. Baker, 549, 1195 Beach, V. Bradt, I". Brownell, I'. Brownson, V. Bryan, V. Burchin, V. Carpenter, r. Chase, '.'. Collins, V. Delacroix, V. Dunlap, V. Fitz Simmons, V. Fuller, V. Gardner, V. Green, V. Harrison, V. King, i\ Kisselback, V. Langhead, V. Lawrence, V. Lunn, V. M'Leod, V. Odell, 120 353, 366, 367, 544 205 930 530, 544 61 61 86 499, 500, 508 154, 155 245 120 86 290 120 426, 498, 499, 619 77 154 87 289 119, 120 373, 473, 540 481 V. Parkhurst, 373, 473, 540, 1195 V. Rhipps, V. Pierce, V. Rogers, V. Rowland, V. Silvernail, V. Swart, r. Topping, V. Vincent, V. Vredenburgh, V. Wheeler, Jacobs V. Peterborough, Jafl'e I', llarteau, James r. Beesley, Janes v. Jenkins, Jaques V. Gouhl, Jarchow r. Pickens, Jarvis v. Hamilton, Jean r. Spurrier, Jeffries v. Jeifries, Jenkins v. Eldredge, Jennings v. Collins, V. McConib, )'. Itobertson, Jewett r. I'artridge, Jimison r. Reifsneider, Johnson v. Black, r. Ciirter, r. Dixon, V. Emanuel, 245 164 5, 367, 530, 542 86 426, 498 291 297, 498 500 64, 68 202, 5i)4 164, 165 283 461 1075 816 648 1275 721 178 154 69 214 166 952 082 719 68 017 648 1197 TABLE OF AMERICAN CASES. XIX PAGE Johnson v. Hannahan, 1182 V. Ilartshorne, 476 V. Hoffman, 204 V. M'Leod, 1195 V. Owens, 709 V. Stevens,' 17 V. The Canada Company, 165 V. Wiseman, 958 Johnston v. Bates, 415 V. Hargrove, 498, 619 V. McLellan, 358 V. Riddle, 85,86 Johnstone v. Milling, 912 Jones V. Goldbeck, 693 V. Gundrim, 658 V. Marey, 211 V. Percival, 1070 V. Thomas, 86 V. Todd, 817 V. Ward, 65, 66, 68 V. W. St. L. R. Co. 1080 Joplin V. Johnson, 85, 86 Jordan r. Staples, 200, 1118 Journeay v. Brackley, 82 Joy V. McKay, 474 Joyce V. De Giverville, 284 Judge V. Piske, 709 Junkerman v. Bovee, 223, 482 Kaatz v. White, 211 Kabley v. Worcester Gaslight Co., 154 Kahn ?'. Love, 283 Kamerick v. Castleman, 204 Karns (;. Mc Kinney, 683, 691 Kaufman r. Myers, 658 Keating ?'. Condon, 462 V. Moises, 474 Keats V. Hugo, 1074 Keay v. Goodwin, 19 Keene v. Schnedler, 1196 Keiper v. Klein, 1075 Keller v. Weber, 719, 730 Kelley v. Kelley, 382 Kelly V. Dunning, 1091 V. Harrison, 120 V. Weston, 204 Kelso V. Kelly, 147 Kendall v. Garland, 816 V. Miller, 60 V. Moore, 359 Kennard v. Brough, 956 Kent V. Waite, 1069 V. White, 235 Kerr v. Bearinger, 476 V. Bell, 61 V. Clark, 212, 351, 352 V. Day, 266 V. Merchants' Ex. Co., 273, 475 V. Sharp, 719 PAGE Kerr v. Shaw, ' 631 Kessler v. M'Conachy, 683, 821 Keycs v. Hill, 17, 350, 831 Kidder i'. Hunt, 164 Kidwell v. Kidwell, 461 Kieffcr v. Inihoff, 1070 Kiernan i-. Germain, 825 Kilburn v. Ritchie, 383 Kimball v. Grand Lodge, 631 V. Lam son, 531 V. Sumner, 404, 459 King V. Connolly, 552 V. Davis, 350 V. Foscue, 8, 1145 V. King, ' 1082 V. Miller, 1074 King's Adra'r v. St. Louis Gas Co., 1196 Kingsbury v. Westfall, 642 Kittredge v. Peaslee, 831 V. Woods, 230 Kleber v. Ward, 683 Klein v. Gehrung, 1074 Kline i\ Becbe, 60 Knerr i\ Bradley, 476 Koob V. Ammann, 205 Koplitz i\ Gustavus, 351 Kramer i\ Cook, 5, 585 Krevet v. Meyer, 1196 Krueger v. Ferrant, 284 Kutter V. Smith, 957 Lacy v. AVeaver, 205 Laidlaw v. Taylor, 958 Lake v. Gaines, 648 Lamb v. Rickets, 1082 Lamberton v. Stouffer, 205 Lametti v. Anderson, 266, 268, 416 Lamphere v. Lowe, 957 Lampman v. Milks, 1075 Lamson v. Clarkson, 2 Lancashire i\ Mason, 404 Landen v. McCarthy, 264 Landis v. Scott, 459 Landon v. Piatt, 957 Lane v. King, 86, 88 V. Schermerhorn, 77 ?'. Thompson, 459 Langford v. Selmes, 202, 414, 591 V. United States, 831 Langley v. B. & M. R. R., 28 V. Ross, 297, 499 Langton v. Bacon, 682 Laning v. Cole, 149 Lansing v. Van Alstyne, 816 V. Wiswall, 1069 Lapham v. Norton, 959 La Plaisance B. H. Co. v. City Monroe, 1083 Larkin v. Misland, 87 XX TABLE OF AMERICAN CASES. PAGE PAGE Larkin v. Taylor, 205 Livingston v. Ketchara, 1060 Lame i\ Russell, 1133 V. McDonald, 1081 Larrabee-;;. Lunibert, 831, 1195 V. Ten Broeck, 1055 La Rue v. Gilkvson's Ex 'r. 76 . Livingstone v. Potts, 482 Lassell v. Reed, 230 Lloyd V. Cozens, 353, 414 Lattimore v. Davis, 1081 Lobdell V. Hayes, 459 Laughran v. Smith, 220, 354 Lockwood Co. v. Lawrence, 1086 Lavillebeuvre ?■. Cosgrove, 1075 Logan V. Herron, 356, 473, 539, 1198 Lawrence v. Burrell, 481 Long V. Fitziniinons, 917 ?'. French, 273, 632 V. Stafford, 297 V. Kemp, 958 Longfellow r. Longfellow, 359 V. Saratoga Lake R Co. 160 Longmaid v. McNichol, 1075 Laxton v. Rosenberg, i>> 202, 353, Longstreth r. Pennock, 446 366, 566 Loomis (.-. Bedel, 631 Ld. Dynevor v. Tennant 291 Looney v. McLean, 284 Ld. Inchinquin r. Lyons 351 Loring v. Hailing, 531 Learned v. Wclton, 52 V. Melendy, 82 Leary v. Meier, 630 Lothrop V. Thayer, 917, 930 Leavitt v. Fletcher, 824 911, 912 Lougee v. Colton, 650 V. Leavitt, 350, 354 Loughran v. Ross, 955 Le Cain v. Hosterman, 831 Lounsbery v. Snyder, 212 , 224, 351 Lecatt V. Stewart, 1197 Loupe V. Wood, 283 Lee V. Payne, 414, 929, 935 Lovett i: United States, 1003 Leffingwell v. Pierpoint, 531 Low r. Elwcll, 1132,1133 Le Gierse v. Green, 415 Lowe V. Miller, 205 Lehman v. Dreyfus, 415, 4.34 Lowell ('. Spaulding, 912 Leighton ;•. Van Wart, 358, 373 Loyd V. Cozens, 549 Lcishman v. AVhite, 630, 632 821, 822 Lucas V. Brooks, 74, 118 Leitch V. Owings, 693 Lucy r. Lucy, 459 Leitensdorfer v. Hempstead, 59,01 V. AVilkins, 481 Leland v. Gassctt, 957 Ludden v. Stern, "821 Lcmar v. Miles, 952 Lundy v. Dovcy, 383 Leonard v. AVhite, 233 Lunn V. Gage, 273, 825 Leopold r. Judson, 630, 632 Lunt V. Holland, 1082 Le Kay De Chaumonti-. Forsythe, 266 Luther v. Winnisimet Co., 1080 Lesley v. Randolph, '- ]53, -)30, 1198 Lyman v. Ackerman, 831 Lessee of Bisbee v. llnU, 81, 82, 434 Lyncii r. Bnldwin, 822 Lessee of Tucker v. Moreland, 61 Lyon V. Cunningham, 369, 474 Levering ?'. Langley, 388 Levy r. M'Cartee, 119 Mac. & Aug. R. R. Co. v. M ayes, 28 Lewis V. Burr, 82 388, 418 Macdonell v. I. & G. N. Ry. Co., 29, V. Brooks, 209 130 V. James, 174 Macgregor ;». Defoe, 5, 35' ,359,660 V. layman, 205, 290 MacGregor i\ Hawle, 540 V. Payn, 030, 631 Machias Hotel Co. c. Fisher , 28,498 Lewis's Heirs v. Ringo, 81,82,462 Mactier v. Frith, 170 Leyman v. Abeel, 1046, 10()0 Magaw v. Lambert, 042, 1003 Libbey r. Staples, 308, 350 Magher r. C'olenum, 663 V. Tolford, 224 284, 917 Magill V. Young, 4ir ,418, 422 I'. Chase, 72 Magrath ?'. Todd, 424 Lienow v. liicliio, 935 Main r. Schwarzwaelder, 957 LiTialian r. Barr, 956 Mairs r. Sparks, 1197 Lincoln v. Biickmaster, 77 Manier v. Myers, 1074 Linden v. Hepburn, 415 Manough's A])i)('al, 610 Lindenbower ?•. Bentley, 1118 Mansur tJ. Pratt, 68 Lindlev v. Kellcy, 205 Manwcll i\ Mnnwell, 205 T,'. "Miller, 825 Maples 11. Miilon, 956 Lithgow ?-. Mt)ody, 358 373, 473 Mara r. Fit/gerald. 162 Little V. Martin, h:!0 Marden v. -Jordan 87 V. Palister, 352, 475, 500, 1118 Mariner i'. Crocker, 888 TABLE OF AMERICAN CASES. PAGE Markland v. Crump, 26G Marks v. Ryan, 955 Marrin r. Graver, 218 Marshall v. Jaquith, 71 Martin v. Black, 82, 00, 4(54 V. Jett, 1081 V. Knapp, 86 r. Martin, 404 V. Miles, 87 V. Riddle, 1081 V. Spicer, 226 V. Splivale, 1195 Martin's Appeal, 461 Marys v. Anderson, 655 Mason v. Felton, 76 V. Hawes, 1133 i\ Powell, 1197, 1275 V. Stiles, 929 Masters v. Green, 707 Match V. Patchin, 4,281 Matter of Croney, 446 of Dyer, 67 of Fowler, 445 of Jane ftunter. 149, 272 of McGrath, 445 of Morgan R. R. & S. S. Co., 434 of Nicol, 67 of Utis, 77 of Woodworth, 462 Matthews v. Stone, 692, 693 Matthias v. Pace, 481 Mauney ?'. Motz, 26 Maverick v. Gibbs, 205 May V. Rice, 474 Mayfield v. White, 722 Maynard v. Maynard, 289, 290 Mayo I'. Fletcher, 831 Mayor &c. v. Parker Vein S. S. Co., 822 Mayor of N. Y. v. Mabie, 4, 81, 130, 281, 462 M'Calmont v. Mulhall, 186 McCanna v. Johnston, 639 McCarthy v. Henderson, 62 V. Yale, 473, 539, 1195 McClead v. Davis, 459 McClenaghan v. Barker, 353, 711 V. New York, 912 McClure v. Red Wing, 1080 M'Comb ('. Wright, 150, 151 McCormick v. Kans. City &c. R. R., 1081 V. Young, 415 M'Coy V. Scott, 459 McCray v. McCray, 166 M'Crea v. Punnont, 149 McCready r. Tliompson, 1074 McCreery v. Clafflin, 691 McDevitt r. Lambert, 474, 541 V. Sullivan, 404, 406, 021 M Oonald v. Lindail, 1072 McDonald r. Rose, McDougal i\ Sanders, M'Dougal V. Sitcher, McDowell V. Simpson, McElroy o. Dice, McKwen v. Dillon, McFarland v. Chase, McFarlanc i'. Dickson, V. Pierson, McGee v. Gibson, M'Ginness r. Kennedy'', McGovven v. Sennett, McGrath v. Boston, Mcllvaine v. Harris, McJunkin r. Dupree, PAGE 161 593 1132 351 720 912 475 165 632 381 157 655 155 290 956, 958 McKeage v. Hanover Ins. Co., 958 McKelvey v. Rourke, 161 McKenzie v. Lexington, 2, 491 V. McGlaughlin, 223 McKibbin v. Brown, 144 McKildoe's Ex'r v. Darracott, 1010 McKinney i'. Peck, 354 M'Kinney v. Reader, 684, 709, 719, 720, 7.30 McKircher v. Hawlcy, 86, 657 McKissack v. Budlington, 202 McLaughlin v. McLeod, 81 V. Nash, 959 McMahan v. Tyson, 650 McManus v. Carmichael, 1082 McMinn v. Bliss, ''■196, 1275 McMuUen v. Riley, 901 McNair v. Schwarz 1195 McNeely r. Hart, ' 203 McPherson v. Norris, 359 McQuigg V. Morton, 816, 817 McUea v. Cent. Nat. Bk.,953, 954,959 McWillie v. Hudson, 709 Mead v. Thompson, 648, 684, 694 Meader ;;. Stone, 1132 Meador v. Everett, 439 Meagher v. Coleman, 245, 404 Mechanics Bank of Alexandria ?'. Columbia, 26 Medway Cotton Man. Co. v. Adams, 26 Meeks v. Hahn, 462 Melhop V. Meinhart, 957 Melley v. Casey, 73 Mercereau t'. Bergen, 1197 Merger Doe d. Clitf v. Connaway, 475 Merriam v. Willis, ^350, 1132 Merrill r. Bullock, 373 V. Forbes, 1196, 1274 Merritt v. Brinkerhoff, 1084 r. Fisher, 205 Merryman v. Bourne, 631 Metcalfe v. Fosdick, 291 Mickie z\ Lawrence, 816 Mickle V. Miles, 652 Middleton v. Pritchard, 1083 XX 11 TABLE OF AMERICAN CASES. PAGE Miles V. James, 684, 694 Millay v. Millay, 382, 1133 Mill Dam c. Hovey, 24 Miller v. Baker, 956 ?•. Goodwin, 71 r. Ridgeley, 354, 359 Mills I'. United States, 113 Minn. Co. v. St. Paul Co., 954, 958 Minor v. Sharon, 283, 823, 914 !Miltenberger r. Logansport 11. Co., 99 Mitchell V. Billingsley, 956 V. Cantrill, 291 V. Franklin, 650 V. Pendleton, 831 V. Warner, 266, 269 Mobile V. Eslava, 1083 Moffat V. Strong, 821 Monaghan v. Agr. Fire Ins. Co., 61 Montague v. Dent, 958 Montgomery v. Spence, 387, 388, 415, 816 Moody V. Mayor of N. Y., 1122 Moore v. Boyd, 544, 1133, 1146 V. Goedel, 1128 V. Houston, 531 V. Kay, 218 V. Sanborn, 1083 V. Townshend, 916, 930 V. Valentine, 959 Morgan v. Arthurs, 952 V. Campbell, 696 Morrill v. Mackman, 353 Morrison v. Buoksport & Bangor R. R., 1081 V. Marquardt, 1074 V. Rosignol, 147, 188 Morton v. Dean, 144, 150, 168 V. Pinckney, 388, 418 Mosby V. Leeds, 650 Moshier v. Reding, 382 Moss r. Oakley, 28 Mott V. Hicks, 25, 28 Motte V. Alger, 71 Moult/jn V. Moore, 918 V. Robinson, 204, 205 Mugford V. Ricliardson, 1133 Mullen V. Striker, 1074 Mumford v. Brown, 19, 283 Murch r. Concord R. R. Co., 28 Murcliie v. Gates, 1091 Murdock V. Gifford, 959, 960 V. Ratcliff, 81, 82, 4(52 Murphy v. Marland, 956 Murray v. Cherrington, 3(i() I'. I'.niinons, 73 r. Ilarway, 1010 Mussoy r. Scott, 1133 Mustard r. Wohlford's Heirs, 61 Myers i: Burns, 825, 911, 912 V, Forbes, 146 PAGE Myers r. Gemmel, 631, 1075 V. Silljacks, 188 r. Smith, 722 Napier r. Bulwinkle, 1074 V. Darlington, 266 V. Foster, 648 Nassau Bank v. Jones, 28 Naumberg v. Young, 282 283 Nave r. Berry, 286 Negley r. Morgan, 415 Nellis V. Lathrop, 816 Nelson v. Cook, 373 , 475 Neumeister v. Palmer, 473 539 New Albany R. R. v. Peterson, 1094 Newall r. Wright, 85, 86, 87 Newcomb v. Ketteltas, 51 V. Ramer, 230 V. Stebbins, 459 Newliall V. Ireson, 1084 Newman v. Rutter, 500 Newport Mech.Man. Co. v. Star- bird, 26 Newton v. Eddy, 1082 N. Y. Inst, for Blind r. How's E.\'rs, 26 N. York Life Ins. Co. v. Milnor, 1072 Nicoll v. N. Y. & Erie R. R. Co., 297 Nichols v. Dusenbury, 825 V. Luce, 1072 Noble V. Bosworth, 290 V. Smith, 230 Noe V. Gibson, 694 Noel V. McCrory, 373 Norcum v. Sheahan, 61 Norman v. Wells, 264, 266, 1018 Northern Bank v. Roosa, 82 Northern Cent. R. Co. v. Canton Co., 959 Norton r. Craig, 230 V. Strong, 68 r. Vuitee, 817 Nowery v. Connolly, 658 Nowian v. Trevor, 630 Noyes v. Marsii, 147 O'Bannon r. Roberts' Heirs, 459,402 O'Brien v. Ball, 2, 822 V. Capwell, 283 O'Callaghan v. Booth, 127(» Ocean Grove v. Asbury Pk., 1094 Odell V. Buck, 77 O'Donnel v. Sevbert, 683 O'Donnell v. Hitchcock, 957 Ogburn r. Connor, 1081 Ogden r. DulTy, 654 ?•. Jennings, 233 Ogilvie V. Hall, 031, 632 O'llara v. Jones, 648 Old Col. R. R. Co. r. Evans, 149 O'Leary v. Delaney, 901 TABLE OF AMEIUCAX CASES. PAOB 233 Oliver V. Dickinson, ^^^^^ ^^,^^ Onibony i". Jones, ' ,g.^ (VNeill r. CahiU, 2^5 Ovcutt V. Moore, ^^..^ ;](56 Orsei-y. Vernon, ()5o' 957 Osborne «. Humphrey, J-^^,, .^^_^ Osgood ?;. Howard, OUumwa Woolen Mill Co. v. ^^^^^ Hawlcy, 857 Outram v. lay lor, ^^.,.^ ()verdeer^^ Lewis, ^^ Overman r. Sanborn, Overseers i;. Overseers, /uo, ^uu Overseers of North Whitehall r ^ ol^Seers of South WlutehaU^^^ Overton .. WilUston, •><^-. ^^^J Overturf r- Dugan, ^^^ Oves y. Oglesby, gg^ Owen V. Boyle, gj^g Owens V. Conner, ^^23 Owings V. Jones, Page v. McGlinch, Page V. Tucker, Palmer v. Mulligan, y. Oakley, V. Palmer, V. Waddell, V. Wetmore, Pardee v. Gray, Paris V. Vail, Park V. Baker, Parker v. Foote, V. Redfield, People V. Alb. & Vt. 11. H- Co.. V. Conklin, „. Darling, i;. Field, V. Gillis, r. Leonard, V. I'latt, V. Kickert, r. llobertson, V. Smith, V. St. Louis, V. Van Nostrand, V. Westervelt, Pepper v. Kowley, Perine r. Teague, Perkins r. Dyer, v. Swank, Pernam v. Wead, Perry c Brainard, Waggoner, XXIU PAGB 122 119 353 1197, 1276 155 1 197 1001, 1082, 1083 212,351, 119(5, 1U)7, 1275 20, 247, 414 111)6, 1274 1083 1197 81, 82, 434 821, 825 66 956 1072 67 648 1- vvatrgouei, 1 r ). 1? U Co V.Nashua Peterborough II. U.^o. ^5, 28, 122 &L. K.KCo., .^,g Peters v. Kewkirk, ^^ Peterson r. Laik, ..Qg^ Pettigrew v. EvansviUe, i^«_. Pettingill v. Porter, ,^j- Phelps V. Baldwin, .^ Phila:&SR.R.Co.«.'Catav.Jsa^^^ 11. R. Co., ' 4g| Philip V. McLaughUn, Phillips i;. Covert, '^^z, ou-.^ _, Parks V. Newbuvyport, ^^^^ Parmenter v. Caswell, ^g^. Parrott i^ Barney, " ' ^go Parsons v. Camp, ro^ u. Chamberlain, ^^^ r. Copelaud, ,^:^ Patterson r. Stouaaru, ou , ^^^^ Pattison i;. Hull, ^g^ Payne u. Wallace, g^g Pea V. Pea, ^47 Pearl v. Harris, ,^g r. M'Uowell, 247 Pease v. Norton, ^^2, 959 Pemberton v. King, g^Q Pendleton r. Dyett, Pennimanr Hartshorn, '^ Penn. t'. Rohmson, {loe 1275 i,. Waddle, 11^^' '-':, r. St. Louis &c. R. K. '■- Penn. Coal Co. .. Sanderson, 1 8b SyS^e^M^S^^ 056:957 V. Green, V. Phillips, r. Stevens, Pickard v. Collins, V. Kleis, Pickering i'. Staples, Pickett V. Bartlett ^ Pierce v. Concord R. R- «^o., V. George, Pierre v. Fernald, Piggot V. Mason, Tike ('. Witt, Pillow V. Love, Pitman v. Davis, Piatt i". Farney, Pleasonton's Appeal, Poindexter v. Blackburn, Pola-ck ('. McGrath, Pollard V. Shaeffer, Porch V. F'ries, Port V. Jackson, Porter v. Dunham, V. Merrill, 917, 929, 935 00 1070 900 1122 499 233 354, 358, 373 28 959 1074 266, 414 1196, 1275 952 1197 284 52 1145 1190, 1275 817, 822 V. Schofield, Post V. Kearney, 816 1081 141, 202, 270, 297, 364,498 52 4U XXIV TABLE OF AMERICAN CASES. PAGE Post V. Vetter, 274, 284 Poston V. Jones, 630, 631 Pott V. Leslior, 831 Potter V. Cunningham, 290 V. Hall, 647, 048 V. Jacobs, 164, 160 Powell r. Lane, 1275 V. Lovegrove, 147 V. IMonson, 959 V. Sims, 1075 Powers V. Dennison, 956 Pratt V. Lanison, 1084 V. Levan, 82,418 Pratte v. Coft'man's Ex'r, 229, 290 Pray v, Clark, 147 V. StebLins, 72 Preble v. Hay, 473 Presby v. Williams, 247 Preseott v. De Porest, 414 V. Elm, 543 V. OttiTstatter, 825 Preston v. Hawley, 1195 Prestuns r. McCall, 658 Prettyman r. Unland, 648, 084 Price V. Brayton, 956 V. Hall, 690 V. McCallister, 683 V. Smith, 657 Price's Ex'rs v. lieynoUls, 824 Prickett c. Kitter,354, 859, 474 ,530,541 Priest V. Nichols, 913 V. Tarlton, 247 Prince v. Case, 956 Prindle v. Anderson, 354, 359 Procter v. Keith, 224 Provost V. Calder, 20G, 290 388,410 Piigsley IK AikiMi, 81, 402 Purcell r. English, 284, 913 V. Tliomas, 658 Purvis V. Hume, 188 Putnam ?•. Ritchie, 68 V. Wise, 204, 206 V. Wyley, 1118 Pyle V. Maulding, 247, 531 V. Pennock, 955 QtjACKENitos V. Clarke, 426 Quay r. T>ucas, 42(! Queen v. Miller, 22, 113 Quimby (-.Manhattan Paper Co., 953, 954 Quinn v. Wallace, • 719 Raddin )'. Arnold, 952 R. Rd. Co. r. Scliurmeir, 1082 Ry. Co. V. Linard, 648 Railway Co. v. Vance, 122 Rand v. Rand, 247 Randall r. Rich, 388,481 V. Van Vechten, 25, 20 PAGE Rank v. Hill's Adm'r, 459 Rankin v. Simpson, 166 Ray r. Lynes, 1074 I'. Sweeney, 1074, 1075 Reab v. McAlister, 825 Reader v. Purdy, 1133 R«am !'. Harnish, 205 Reckhow r. Schanck, 21, 22, 475 Rector v. Bacon, 410 Redmon v. Bedford, 205 Reed u. Reed, 373, 474, 1195 V. Ward, 410 Reeder r. Say re, 212, 351, 530 Rees V. Baker, 205, 1 126 V. Emerick, 719 Reeve i\ Tliompson, 410 Reeves v. Hyde, 825 ]?egina,e.r?e/.Northwoodi>. Askin, 387 Reid V. Kirk, 957 Renisen v. Conklin, 499, 619 Rennyson's Ai^peal, 1075 Re Willis, ex }>\ (Joodall, 284 Wall V. Hinds, 817, 955, 958 Wallace v. Kennelly, 388, 481, 482 (;. Lent, 481, 823, 914 Walls V. Hinds, 262, 265, 415 V. Preston, 204 ;•. Walker, 462 Walmsley v. (Jriffith, 176 Walsh V. Rundlelte, 165 Walton V. Jacob, 1132 ". Wray, 959 Waltons (•. Cronly, 87, 262, 415,424 Wiiltson i;. Bryan, 205 Walworth r. Jenness, 205 Ward /). Ncal, 1074 I'. Warner, 350 Ware v. Blalock, 648 PAGE Ware v. Chew, 1075 V. Wadleigh, 475, 500, 1195 Waring v. L. &. N. R. Co., 353, 359 Warner v. Abbey, 19, 204, 205, 206 V. Hale, 353, 362 Warren v. Blake, 1070 V. Ritter, 1196 V. Wagner, 74, 632, 916 Wass V. Bucknani, 16 Waterman v. Clark, 498 V. Johnson, 1083 Watertown r. Cowen, 264, 266 V. White, 816 Watriss ik Nat. Bank, 955 Watson r. Bioren, 1070 ?'. Hunkins, 406 Watterson r. Reynolds, 5 Watts V. Coffin, 274, 825 V. Lehman, 952 Waugh I'. Riley, 120. Webb V. Seekins, 381 Webster v. Parker, 81, 462 L\ Southey, 212 Weed V. Crocker, 154 Weeks v. Slv, 352, 366, 1132 Weidner v. Foster, 262, 265, 388, 424, 425, 817 AVeinsteine v. Harrison, 283 Weiss c. Oregon I. Co., 1084 Welch r. Silliman, 297, 498 Weld V. Traip, 155 AVells ('. Banister, 957 V. Castles, 282, 284 V. Hornish, 657, 719 r. Seixas, 60 V. Slieerer, 500 Wendell v. Baxter, 1123 Wenger v. Raymond, 17 Wentworth cBuklcr, 143 Wenzler r. McCotter, 1122 Werner v. Ropii'cjuet, 711 Wescott I'. Arbuckle, 1133 West V. Atherton, 202 (.'. Cartledge, 816 V. Sink, 710 Western N. C. v. Deal, 950 Western R. R. v. Babcock, 175, 182, 188 Western Union Tel. Co. v. Fain, 353 AVestgate >■. Wixon, 956 West lake v. De Graw, 630, 825 Westmoreland v. Davis, 76 V. Foster, 406, 621 West Roxburv v. Stoddard, 1083 Wetsel (;. Mayers, 084, 094 Wliah-y ?'. Jacobson, 648 Whalin V. White, 88 Wheatley >\ Bnugh, 1094 Whcntoii r. K;ist, 60 Wheeler r. Ik-nt, 247 TABLE OF AMERICAN CASES. XXIX PAGE Wheeler v. Cowan, •io\) V. Gilsey, 1072 V. Kirkendall, 1140 V. Spinola, 1083 Wheeler & Wilson Man. Co. i'. Charters, o4G, 347 Whitiiker r. Brown, 289 Whitbeok v. Skinner, 825 White I'. Arndt, 956 V. Ehvell, 366 V. Flora, 61 V. Griffing, 446 V. Maynard, 141, 202, 364 V. Nelles, 935 V. Tyndall, 261 Whitebeck v. Cook, 73 AVhitehorn v. llines, 77 Whitcuiarsh v. Cutting, 1145 Whitinii- V. Brastow, 956 V. Lake, 682 Whitmarsh v. Walker, 956 Whitney v. Allaire, 3, 245, 348 V. Lewis, 822 V. Swett, 352, 366, 565, 1133 Whittaker v. Perry, 1133 Wliitteniore v. Gibbs, 387, 413 Wickershani ?•. Irwin, 262, 434 Wilbur V. Alniy, 52 t-. Tobev, 119,120 Wilcox V. Wood, 247 Wilde V. CantilhMi, 373, 1132 Wilder v. Maine Cent. R. II., 270 Wiley's Appeal, 81, 462 Wiigus V. Lewis, 354, 359 V. Whitehead, 551, 1198 Wilkes V. Steele, 816, 824 Wilkinson v. Clauson, 283 Willard v. Harvey, 90 V. Tallinan, 265 V. Taylor, 161 V. Tillman, 406 V. Warren, 1132, 1196, 1274 Williams v. Ackerman, 351, 481 V. Howard, 709 V. Safiord, 1070 V. Smith, 205 V. Terboss, 711 v. Woodard, 388,410,426 Williamson r. Farrow, 247, 531 Williamson's Adm'x v. Richard- son, 459 Willis V. Astor, 578 Wilmarth v. Prntt, 205 Wilson r. Bradford, 71 V. Branch, 00, 61 V. Gerhardt, 388, 415 V. Martin, 141, 202, 364 r. Prescott, 352, 816 Wincli ?•. Birk. Lan. & Clies. June. 11. R., 1'22 PAGE Windsor v. China, 247 Wing V. Gray, 950, 958 Winslow V. Merchants' Ins. Co., 952, 953, 955, 959 Winton v. Cornish, 273, 475 Wissler i'. Hershey, 1072 Witliers r. Larrabee, 352, 481, 544 Withnell v. Petzold, 351, 353, 354, 359, 366 Withy V. Mumford, 266, 270 Witt V. Mayor of N. Y., 5, 354, 474, 530, 541 Witthaus V. Starin, 3, 245 Wittrock V. llalliiian, 404 Wolfe r. Arrott, 346, 347, 914 Wolffe V. Wolffe, 354, 358, 359, 373 Wumack i'. McQuarry, 273, 475 Wood r. B. & B. R. R. Co., 122 V. Partridge, 387, 619 Woodbury v. Woodbury, 383 WoodliuU V. Rosenthal!, 414 Woodman v. Francis, 1118 ?'. Pease, 958 Woodrow V. Michael, 353, 302, 474, 541, 543 Woodruff V. Adams, 205 V. Erie Ry. Co., 28, 122 Woods V. Naumkeag Steam Cot- ton Co., 284 Woodward v. Spurr, 71 Worcester Turnpike r. Willard, 123 Worrillr. Barnes, 648,649 Wortiiingt(m r. Cooke, 410, 816 V. Parker, 284 Wriglit V. Graves, • 2, 22, 202 V'. Lattin, 273 V. Matthews, 683 V. Mullens, 1197 V. Stovert, 141 Wimsch V. Gretel, 1196 Wyman v. Ballard, 260 V. Hook, 350, 831 V. Sperbeck. 214 Wynkoop v. Burger, 1070 957 Yater v. Mullen, Yates V. Kinney, Yeates v. AUin, " 113 York & Maryland L. R. R. v Winans, Youmans ?•. Caldwell, Young r. Bown, .'. Dake 87, 205, 423 28 290 188 211 V. Hargrave's Adm'r, 281 V. Peyser, 82, 388, 418 V. Young, Youngblood >■. Lowr.v, Youngs ?'. Freeman, 352 690 1197 Zeitkr v. Bownuui. 88 TABLE OF ENGLISH CASES. [References are to the star paging.] Abadam v. Abadam, Abbey ?•. Fetch, Abbot r. Blair, V. Weekly, Abbott V. Macfie, Absalam i\ Kin^, PAGE 565 481 113 77 739 414 Accidental Death Insurance Co. v. Mackenzie, 269 Aclieson i:. Fair, 3(59 Ackland v. Lutley, 150, 308, 311, 348 V. PrinjT, 289 Acroyd r. Smith, 142 Acocks V. Phillips, 313, 321, 394, 742, 808 Acton V. Blundell, 708, 715 V. Pritcher, 19 Adams v. Andrews, 714 V. Dunscath, 781 V. Gibney, 4, 172, 173, 076 V. Grane, 441 V. Hagger, 88 Agar V. Young, 547 Agard v. King, 155 Agricultural Cattle Insurance Co. V. Fitzgerald, 199 Ah earn v. Bellman, 345 Alchorne r. Gomme, 52, 267, 425 Alcinous V. Negren, 73 Alcock r. Wilshaw, 755, 805 Aldenburgh v. Peaple, 453 Aldridge v. Howard, 533 Aleberry i\ Walby, 531 Alexander v. Sizer, 63, 64 Alford V. Vickerv, 334, 343, 354, 356, 413, 418, 420, 538, 553 Allan V. Gomme, 701, 717 Allason v. Stark, 32, 540 Allen V. Allen, 630 V. Babbington, 678 V. Bennett, 88 V. Bryan, 252 V. England, 236 V. Flicker, 480 V. Hill, 230 V. Kennet, 799 V. Sharp, 499, 501 PAGE Alley i;. Deschamps, 115 Allhusen v. Brooking, 86, 728 Alloway r. Steere, 276 Alston V. Scales, 734 Ames V. Birkenhead Docks Trus- tees, 59 Amfield v. White, 655, 556, 568 Ancketill v. Baylis, 225 Anderson v. jMartindale, KiO V. Midland Kail. Co., 133, 134, 226, 227, 228, 237, 419, 492 V. Oppenheimer, 682 V. Radclifte, 132 Andrew v. Hancock, 414, 560, 668 V. Pearce, 4 Andrews v. Di.xon, 494 V. Hailes, 742, 80(i r. Paradise, 680, 683 V. Wood, 390 Angell V. Duke, 87 ;;. Randall, 378 Angerstein v. Handson, 175 Ankerstein r. Clark, 428 Ansley v. Wadsworth, 404 Anstey r. Hobson, 41 Anthony v. Brecon Markets Co., 675 Apothecaries Co. v. Fernyhough, 188 Appleby r. Myers, 161 Appleton V. Binky, " 63 V. Campbell, 226, 533 0. Doily, 424 V. Morrey, 833 V. Murray, 353, 741 Archbold v. Scully, 368,466, 533,548 Archdeacon r. Jenner, 619 Arden r. Council, 553 V. I'ullen, 173, 595 V. Sullivan, 221, 268 Arkwright i:. Gell, 712 Arlett V. Ellis, 59, 685, 696 Arnall, Er parte, Re Wilton, 280 Arnison, Ex parte, 320 Arnitt v. Garnett, 491, 494 Arnold v. Bidgood, 50 V. Poole (Mayor), 16 V. Ridge, 58, 272 XXXll TABLE OF CASES CITED. [References are to tbe star paging.] P.\GE PAGB Arnsby v. Woodward 108 2G5, 319 Backhouse v. Bonomi, 734 Arran (Count) V. Cri sp, 556 Bacon r. Gyrling, 179 Arum el (Earl of) i-. Gray, 300 V. Smith, 611 r. Steere, 695 Badeley v. Vigurs, 253 255, 264, 299 Arunf ell f. Trevill, 502 Badger v. Ford 59, 696 Asli (■ Wood, 516 V. Shaw, 642 Aslicroft V. Bourne, 836, 839 Badkin v. Powell, 475, 503 Aslier V. Whitlock, 697 Baggally v. Pettitt, 167 Ash lit Id V. Ashfield, 38,61 Bagge V. Mawby, 486 Asliinore ;-. Hardy, 468 Baggott V. Oughton, 208 Asliton V. Jones, 70 Bagot V. Bagot, 604 Aspdin V. Austin, 176 Bailes v. Wenman, 158 Astle> (-•. Weldon, 300, 391 Bailey v. Mason, 324 Asvlum for Female Oi phans i\ V. Stephens, 685 "iVa erlow, 98 V. Sweeting, 88 Atherston v. Bostock 94 V. Teunant, 387 Atkins V. Humphrey, 289, 291, 542 Baily v. l)e Crespigny, 172, 238, 6(50 Atkin son V. Fell, 648 Bain v. Brand, 48 V. Kinnier, 391 V. Cooper, 134 Attack V. Braniwell, 453, 462, 523 Baines v. Ewing, 92 Attoe V. Heniniings, 255, 379 r. Woodfall, 103 Att.-Gen. v. Brooke, 37 Baird v. AVilliamson, 715 V. Cand)ridge Consumers' Baker v. Davis, 565 Gas Co., 583 ?'. Dening, 92 V. Christ Church Oxford, 37 V. Gostling, 264 539 V. Clarendon, 78 r. Greenhill, 556 561 V. Cox, 198, 306 r. Hoitzapffell, 408 562 592 V. Cross, 37 V. Meryweatlier, 19(J V. Davey, 37 V. Kicliardson, 183 V. Foley (Lord), 228 Balder v. Blackborn, 40 V. Freeman, 48 Ball V. Culliniore, 227, 228 229 V. Fullerton, 615 Ballard r. Dyson, 699 V. Glyn, 16, 70 V. Way, 107 V. Great Yarmouth, 17 Balls V. Westwood, 547 V. Hotham, 137, 215 Bally V. Wells, 1(54 V. Lewin, 32 Bandy v. Cartwright, 674 V. Ma•. Blencowe, 18(3, 334, 339 Bettesworth v. Dean and C. of St. Paul's, 108 Bevan r. Ilabgood, 52, 203 Beverley v. Lincolnshire Gas and Coke Co., 536, 540, 545 Beverley's case, 45 Bevil's case, 488 Bewick c. Winglield, 618 Bevtagh v. Cassedy, 700, 705 Bible ('. Hassey, 491, 494 Bickett V. Morris, 710 Bickford v. Parson, 252 Bidder v. Trinidad Petroleum Co., 613, 638 Biggin /'. Bridge, 381 Biggott V. Birtles, 449 Biggins V. Goode, 464, 526 Bigiiell V. Clarke, 474 Billiiigliurst r. >Spearman, 290, 292 Binckes v. Pash, 705 Birch V. Dawson, 629 V. Stephenson, 140, 391 V. AVright, 13, 155, 229. 338, 536, 543 Bird V. Baker, 144, 150, 151, 156, 161, 190, 358 V. Defonville, 333, 345, 550 V. Elwes, 5r)7, 595 V. (Jreat Eastern Rail. Co., 126 77. Higginson, 15, 83, 546, 718 Birkbeck <\ Pagett, 719 Birmingham Gaslight Co., Ex parte', 283, 432 Bisco V. Holt, 19 Bishop r. Bedford Charity, 737 r. Rryant, 480 /•. Elliott, 630, 637 r. (ioodwin, 383 r. Howard, 222, 542, 808 ■ Bissett V. Caldwell, 442 Hi^sill r. Williamson, 81(i I'.hukett i'. Bates, 113, 117 Blailes r. Arundale, 443 V. Higgs, 724 Blagden r. Bradbear, 91 Blake, Er parte, M'Ewan, In ro, 284 V. Blake, 370 V. Dove, 798 r. Foster, 10, 532 r. Phinn, 100, '24(i, 2(;5 Hlakesley v. Wheildon, 119 Hlanchard »•. Haker, 709 PAGE Blanchard v. Bridges, 704 Bland v. Lipscombe, 684, 695 Blandford v. Marlborough, 556, 558 Blatchford v. Cole, 149, 152, 211, 421, 745 V. Plymouth (Mayor), 180, 680 Blaxton c. Heath, 44, 286 Bleakley v. Smith, 89, 92 Blewett V. Millett, 370 Bliss V. Collins, 401 Blore V. Sutton, 62, 90, 92 Blount V. Pearman, 185 Blunden v. Baugli, 13 Blytli V. Dennett, 355, 356, 420 Boardnian v. Mostyn, 206 Boase v. Jackson. 185 Bogg V. Midland Rail. Co., 367 Bolton V. Totnlin, 127 Bond V. Rosling, 95, 98, 128, 132 Bonnewell v. Jenkins, 105 Boodle V. Cambell, 400, 401, 409, 547 Boone v. Eyre, 167 V. Mitchell, 185 Booth V. A'Beckett, 387 V. Alcock, 706 V. Macfarlane, 746 Bootheroyd v. Woolley, 220 Boraston's case, 158 Boraston v. Green, 755, 761 Borgnis v. Edwards, 590 Borrough's case, 321 Boulcot i\ Winmill, 696 Boulton V. Canon, 262 V. Reynolds, 416 Bourne v. Liverpool (Mayor), 673 Bousher v. Morgan, 80 Bowen v. Evans, 618 r. Hughes, 534 Bowers v. Ni.xon, 379, 391 Bowes V. Croll, 221 V. East London W. W. Co., 204 V. Law, 6()5 Bowker c. Hiirdekin, 190 r. Stewart, 371 Bowser r. Colby, 331 V. Profaze, 462 V. Shorrock, (!42 7'. M'Micliael, 640, 64(i Boyle r. Tandyn, 615 Boys V. Ancell, 392 ?•. Ayerst, 92 Brace v. Wehncrt, 113 Bracey r. Carter, 650 Bradliee r. Christ's Hospital, 615 Bradburn i-. Foley, 754 Bradburnc v. Hotficld, 160 Bradbury v. Wright, 376, 377, 413, 55(i liradford (Earl) r. Komney (Earl) 217 TABLE OF CASES CITED. XXXV [lieferencos are to the star paging.] Bradley v. Baylis, 225 Bradsliaw v. Ilyre, 82 Bradsworth v. Torkington, 090 Brady v. Wilson, 570 Bradyll v. Ball, 28:^ Bragg V. Wiseman, 1, 173 Braithwaite r. Cooksey, 427, 454 Bramley v. Chesterton, 741 Bramston v. Robins, 397, 414, 559 Braniwell v. Lacy, 067 Branding v. Kent, 475 Brandon v. Brandon, 429 Branscomb v. Bridges, 414, 405 V. Scarborough, 620 Brashier v. Jackson, b'75 Brawley v. Wade, 254 Breed v. Green, .398 Brennani v. Hood, 423 Brennan v. Bolson, 100 Brereton v. Tuohey, 304 Brewer v. Eaton, 320 V. Hill, 80, 131 V. Pocock, 294 Brewster r. Kidgell, 184 V. Kitchell, 171, 557, 508 V. Kitchen, 555, 550 Briant v. Pilcher, 078 Bridges c. Blanchard, 704 V. Hitchcock, 300 V. Longman, 009 V. Potts, 333, 347, 405 V. Smyth, 420 Bridgland v. Shapter, 79, 82 Briggs /.'. Sowry, 432, 443 Bringloe i\ Goodson, 215, 548 Brisbane v. Dacres, 501 Briscoe r. Drought, 707 Bristol Corporation >\ Westcott, 001 Bristol (Dean and Chapter of) V. Guyse, 291 Bristol (Dean) v. Jones, 108, 594 Brittin v. Vaux, 202 Broadbent v. Ramsbottom, 707, 715 Brocklehurst v. Lawe, 283 Brocklesby r. Munn, ()12 Brocklington r. Saunders, 221, 704 lirockman r. Honywood, 507 Brodie v. St. Paul, 91 Brogder i\ Met. R. Co., 103 Broke v. Smith, 159 Bromley v. Holder, 472 Brook, Ex parte, Roberts, In re, 280 V. Biggs, ' 208, 548 V. Fletcher, 057 V. Goring, 300 V. Hewitt, 118 Brooke v. Bulkeley, 103 V. Garrod, 115 V. Noakes, 471 PAGE Brookes v. Davies, 399 V. Foxcroft, 11 Brooks r. Drysdale, 120, 121, 122, 100, 182 Brown v. Arundell, 441 Bailey & Dixon, In re, 433 V. Best, 711 V. Burtinshaw, 302, 333 V. Burton, 101, 190 r. Cocking, 811, 824 V. Crump, 175 i\ Glenn, 401 V. Joddrell, 45 V. London (Mayor), 171 V. Metropolitan Counties So- ciety, 421, 428 V. Notley, 738 V. Owen, 417 V. Powell, 416 V. Quilter, 409, 682 V. SheviU, 434, 441 V. Sligo (Marquis), 111, 112, 117 v. Storey, 52, 53, 55, 425 V. Symons, 337 v. Tighe, 305 V. Trumper, 154,338,339,589,590 V. Turner, 723 Browne v. Dawson, 741 V. Dunnery, 453, 484 Browning and Beeston's case, 43 V. Dann, 401 Brownlow v. Hewley, 532 Brudnell v. Roberts, 9 Brudnell's case, 157, 158, 296 Brunton v. Hall, 699, 701 V. Winwood, 215, 697 Buck V. Nurton, 141 Buckby v. Coles, 703 Buckland i\ Butterfield, 602 V. Hall, 118 V. Papillon, 118, 121, 270, 309 Buckley r. Buckley, 828 V. Pirk, 292 V. Porter, 291 V. Taylor, 453 Buckmaster v. Harrop, 100 Buckworth r. Simpson, 188 Budd V. Marshall, 558 Budloss V. Phillips, 390 Bulfin V. Dunne, 203 Bull V. Hutchens, 246 r. Parker, 417 V. Sibbs, 534, 542 Bullcn V. Denning, 179 BuUer's case, 465 Bullock V. Dommit, 592 Bulwer v. Buhver, 230, 751 Bunch r. Kennington, 440, 442 Bunn V. Channen, 692 XXXVl TABLE OF CASES CITED. [References are to the star paging.] BuTchell V. Clark, 129, V. Hornsby, Burden v. Kennedy, Burdett v. Withers, Burjjess v. Boetefeur, Burleigh v. Stibbs, Burling v. Read, Burnaby v. Barsby, Burnby v. Bollett, Burne v. Cambridge, V. Richardson, Burnett, In re, V. Lynch, 161, Buron v. Denman, Burrowes v. Gradin, 51, 219, 267, Burt V. Haslett, Burton v. Barclay, 254, 261, 308, V. Brown, V. Dickenson, Bury V. Pope, Bush V. Coles, Busiiell V. Beavan, Buskin c. Edmunds, Bute (Lord) v. Grindall, r. Tiiompson, Butler and Baker's case, V. Meredith, V. Mulvihill, r. Swinnerton, Buttermore v. Hayes, Buttery v. Robinson, Byron v. Acton, C. CABALLEno ?•. Hent}', Cadby c. Martinez, ]oG, 348, Cadman r. Horner, Cadogan v. Kennett, Caldecott v. Smitiiies, 138, Callingham r. Callingham, Calvaleiro r. I'liget, Calvert v. Joliffe, V. Sebright, Camden (Marquis) 145, 382 611 270 589 588 129 741 74 647 11 422 294 261, 529 342 224, 254, 338, 343 649 263, 306, 309, 372 140 343 686 158, 163 528 321 571 382 423, 426 801 46 680 241 429 110 349, 740, 491 Batterli 530. urv, 537 V. Morton, Campbell v. Lewis, 163, 261 V. Loader, V. Lord Wenlock, r. Wilson, Cannan v. HnrtUy, 299, Cannock i\ Jones, 150, 168, Cantrell ?;. Windsor Union, Cape V. Scott, 303 160, 241 , 358 106 402 , 753 106 198 , 495 680 386, 538 409 683 816 174 685 542 170, 594 540 090 PAGE Capel V. Buszard, 456, 457 Capenhurst v. Capenhurst, 162 Capron v. Capron, 405 Cardigan v. Armitage, 180 V. Montague, 203, 206, 207 Cardwell v. Lucas, 189, 252 Carlisle (Mayor) v. Blamire, 15, 287 V. Whaley, 194 Carlton v. Bowcock, 215, 253 Carlyon v. Lovering, 685, 709 Carmarthen v. Lewis, 83 Carnarvon (Earl) ?;. Villebois, 301 Carpenter v. Collins, 229, 230 V. Cresswell, 167 V. Parker, 34, 55, 680, 683 Carr v. Benson, 126, 669 V. Lambert, 691 i\ Levingston, 92 Carrick ?•. Blagrove, 532 Carrington r. Roots, 94 Cartan v. Burv, 99, 116 Carter v. Carter, 399, 523, 568 V. Ely (Dean & C), 116 V. Hughes, 271 V. Warne, 259 Cartwright v. Millar, 90 V. Smith, 469 Cart Wright's case, 11 Carver v. Richards, 200 Cary v. Cary, 765 V. Matthews, 503 Casberd v. Att.-Gen., 263 Cashell r. Wright, 707 Castleman c. I licks, 476 Catling V. King, 89 Cattm r. Caton, 92, 100 Catt r. Tourle, 664, 672 Cattley v. xVrnold, 220 Caudell v. Shaw, 285 Chadwick r. Clarke, 186 V. Maden, 63 Challoner ;•. Davis, 308 Chaloner v. Bolckow, 573 Chambers r. Kingham, 310 Champernon r. Champcrnon, 55(5 Chancellor r. Poole, 161, 262 Chandler r. Doulton, 4(i4, 526 Chandos (Duke of) r. Talbot, 616 Channon v. Patch, 606, 617 Chanter v. Dickenson, Chaplin v. Sonthgate, Chapman r. Beecliam, Itr Chap- man & Ilobbs, * 151, 425,429 V. Rluck, i\ (!lia])man, r. De 'i'astct, V. Rothwell, V. Towner, V. Turner, 94 681 132 396 650 739 133, 3.!1) 132 TABLE OF CASIiS CITED. XXXVU [References are to the star paging.] Chappell V. Gregory, Cliarlewood v. Bedford (Duke), Cliasemore v. Richards, Cliatfield v. Parker, Chauntler v. Kobinson, Clieesrnan v. Ilardliaiu, Clieetham v. Hampson, (507 709. cm. 614 Cheshire Lines Committee v. Lewis, 155, Ciiester v. Wortley and Cole, Chesterfield and Midland Silk- stone CoUry. Co. v. Bolton, V. Hawkins, Chesterman v. Mann, Chew V. Holroyd, Chichester v. Lethbridge, Chil<;ote v. Jouldon, Child V. Chamberlain, 458, 47G, V. Comber, Chinnock r. Ely (Marchioness), Chowne r. Baylis, Christ's Hospital v. Harrild, 376, Christie v. Winnington, Christry v. Tancred, 543, 549, Church I'. Brown, 91, 1*20, 121, Churchill r. Evans, Churchward v. Ford, 585, 536, 537, V. Sheddy, Claridge v. Mackenzie, 214, 269, Clark V. Arden, V. Cogge, 81, 82, V. Crownshaw, V. Gaskarth, 436, Clarke v. Calvert, V. Davies, V. Dickson, V. Fuller, 62, 88, 90, 92, 96, V. Glasgow Assurance Co., V. Hart, V. Holdford, 378, 439, 480, V. Hougham, V. Millwall Dock Co., V. Moore, 93, 112, 116, V. Roche, V. Roystone, 603, I'. Smith, V. Sydenliam, V. Tinker, V. Westrope, 762, Clarkson v. Scarborough, V. Woodhouse, Clavering v. Clavering, Clay V. Shackeray, V. Southern, V. Thackrah, Claydon v. Green, 114, 598 88 714 272 735 , 693 , 738 ,334 802 592 159 115 814 702 831 480, 483 88 97 47 556, 5(i8 190 743 656, 659 615 ,541 724 396 61 702 639 437 437 502 64 127 592 641 646 399 441 219 188 762 389 152 692 765 404 697 607 686 63 686 244 PAGE Clayton v. Blakey, 127, 133, 341 V. Corby, 684, 701 V. Gregson, 136 V. Illingworth, 98 Clayton's case, 150 Cleaton v. Gower, 111 Clegg V. Edmondson, 370 Clement v. Milner, 450, 458 Clements v. Lambert, 142 V. Welles, 265, 677 Clench v. Dr. Arenburg, 226 Clennel v. Read, 560, 568 Clerk r. Berwick (Mayor), 519 V. Clerk, 11 V. Palady, 535 Clermont v. Tasburgh, 106 Clifford V. Turrell, 91 V. Watts, 383 Clifton V. Walmsley, 137 Climie v. Wood, 624 Clinan v. Cooke, 62, 90, 92, 93, 112 Cline's Estate, Re 406 Clive I'. Beaumont, 104 Close V. Wilberforce, 264 Clossy, Re 148 Clow V. Brogden, 600 Clowes V. Hughes, 234 Clun's case, 394, 403 Coal Consumers' Association, In re, 433 Coates V. Collins, 158 Cobb V. Bryan, 512 V. Carpenter, 540 V. Stokes, 221, 339, 746 Cockburn, Ex parte, re Smith, 159 Cocker v. Cowper, 714 V. Musgrove, 492, 495 Cockerell r. Owerell, 228 Cockin V. Heathcote, 144 Cocking V. Ward, 95, 242 Cockson V. Cock, 163 Codd r. Brown, 754 Coe V. Clay, 675, 683 Coffgan V. Warwicker, 545 Coghill V. Freelove, 289, 291 Colbron v. Travers, 565 Colby V. Gadsden, 112 Cole V. Forth, 608 V. Green, 608 V. Sury, 395 V. West London & Crystal Palace Rail. Co., 139 Cole's case, 163 Colebeck v. Girdlers' Co., 698 Colegrave v. Dias Santos, 640 Coleman v. Bathurst, 719, 721 17. Foster (Bart.), 126 Coles V. Pilkington, 101 V. Trecothick, 62, 92 XXXVUl TABLE OF CASES CITED. [References are to the star paging.] PAGK Coll V. Coventry, 426 CoUen V. Gardiner, 62 V. "Wright, 63 Colles V. Evanson, 298, 299 Collett V. Curling, 91, 333, 395, 551 Colley V. Streeton, 599 Collier r. M'Bean, 109 V. Mason, 106, 113 V. Nokes, 394, 453 Collins and Harding's case, 400 V. Barrow, 173 r. Blantern, 161 V. Collins, 113 V. Crouch, 162, 292 V. Harding, 84, 402 r. Sillve, 662 V. Weiler, 8, 9 V. Wilmott, 95 CoUison I'. Lettsom, 165 Colville V. Hall, 317 Colyer v. Speer, 494 Combe's case, 63 Comrains r. Scott, 89 Commons v. Marshall, 201 Conan r. Kemise, 163 Congham v. King, 264 Congleton (Mavor) v. Pattison, 164 165 Connolly v. Connolly, 48 Connor v. Bentley, 514 Const r. Ward, 508 Constable v. Constable, 406 i;. Nicliolson, 77 Cooch V. Goodman, 128, 188, 189, 252 Cook V. Booth, 366 V. Cook, 492 V. Enchmarsh, 799 I'. Gregson, 292 V. Gucrra, 255, 395 V. Humber, 225 V. Moylan, 50, 212, 2G7, 546 !•. Rosslyn (Earl), 496 V. Waugh, 107, 1 10 Cooke V. Loxley, 214, 253, 268, 547 807 V. Wilson, 63, 64 Coomlie ?'. Greene, 169, 595 Coomber v. Howard, 91, 395 Coombs r. Beaumont, 642 Cooj)i'r, A'.r jxirte, re North Lon- don Kail. Co., 34, 203, 210 V. Blandy, 547, 549 V. Crabtree, 733 V. Hood, 91 V. IIubl)uck, 687, 700, 705 V. Marshall, 690 V. l'hil)l)H, .",()9 V. Robinson, 150, 190 V. Smith, 88 PASB Cooper I'. Twibell, 393, 672 Copland i\ Laporte, 530 Copley r. Hepworth, 132 Copper Mining Co. v. Fox, 104, 341, 345, 545 Corbett, Ex, Shand, Re, 284 ?•. Howden, 52 Cornfoot V. Fowke, 04 Cornish v. Cleife, 169, 591 r. Searall , 267, 268, 269, 308, 538 V. Stubbs, 9, 755 Cornewall v. Dawson, 719 Cornwell, app., Sanders, resp., 723 Corpe r. Overton, 70 Corrigan r. Woods, 546 Cort I'. Birkbeck, 716 r. Sagar, 183 Corus V. , 679, 683 Cory V. Bristow, 125 V. Corj', 46 Cosser v. Collinge, 91, 265 Coster V. Cowling, 185 r. Wilson, 472, 473 Costigan v. Hastier, 109, 110 Cotesworth v. Spokes, 320, 323 Cother v. Merrick, 385 Cotsworth V. Bettison, 488 Cottee V. Richardson, 131, 144 Counter tk Macpherson, 110 Coupland v. Arrowsmith, 91, 102 V. Hardingham, 739 V. Maynard, 420 Courtauld v. Legh, 705 Cousins V. Harris, 569 V. Phillips, 372 Cowan V. Milbourn, 96, 198, 533 Coward v. Gregory, 167, 594, 600 Cowell, Ex parte, 642 Cowen V. Pliillips, 128, 132, 731 Cowlam V. Slack, 692 Cowley V. Suiulerland (Mayor), 76 V. Watts, 103 Cowling I-. Higginson, 699 V. Fletcher, 11, 12, 49, 422, 427 Cox V. Bailey, 467 V. Bent, 133, 222, 228, 419 V. Bishop, 257, 264 V. Brain, 80 V. Knight, 539, 549 V. Leigh, 491 V. Mi(hik>ton, 90 V. Painter, 477 Coxc I'. Day, 206 Crabtree v. Robinson, 462 Cramer v. Mott, 463 Oane v. Batten, 654 V. Tayh)r, 20 Crawk'y c. I'rice, 182, 656 Creak v. Brighton, 836 TABLE OF CASES CITED. XXXIX [References are to the star paging.] PAGE PAGE Cripps V. Blank, 537, 538 Dane v. Kirkwall, 72, 551 Crisdee v. Bolton, 392 Danford v. McAnulty, 804 Crisp V. Churchill, 533 Daniel v. Anderson, 702, 704 Croft r. London & County Bank- r. Gracie, 376, 379, 418 ing Co., 332 V. Hill, 158 V. Lumley, 312, 322, 355, 356, V. Stepney, 412 6G0, 068 802 808 c. Woodroffe, 799 Crofts V. Haldane, 704 Daniels r. Davison, 89, 229, 240 Cronnnellin P^state, 201 V. Potter, 739 Cromwell v. Andrews, 394 Dann i-. Spurrier, 155 178, 358 Cromwell's case. 140 Dansey v. Richardson, 226, 843 Croombe r. Lediard, 111 Darby c. Harris, 434, 438, 623 Cropp V. H umber ton, 394 f. Whittaker, 113 Crosbie v. Tooke, 118 Dare v. Heathcote, 699 Crosier v. Tonikinson, 441 Dargan r. Davies, 473 Cross, In re, 37 Darling v. Clue, 700 V. Eglin, 139 Darlington v. Hamilton 100, 112, V. Jordan, 320, 796 246, 265 V. Lewis, 685, 706 V. Pritchard, 213 Crossfield i'. Morrison, 171 Darrell v. Tibbits, 652 Crossley v. Liglitovvler, 606, 710 Darwin v. Upton, 706 Crouch V. Tastolfe, 397 Danbury v. Lavington, 235, 796 V. Tregonning, 261 Davenant c. Salisbury, 656, 558 Crowder v. Self, 465 Davenport r. Reg., 322 Crowley v. Vitty, 219, 224, 299, 351, V. Walker, 116 634 814 Davidson v. Cooper, 108, 199 Crowther v. Ramsbotham, 465 478 Davies r. Aston, 449. 451 Crusoe i'. Bugby, 659 I'. Connop, 761 Crux V. Aldred, 392 V. Edmonds, ■495 Cubitt's case, 424 j;. Eyton, 275, 315 Cubitt V. Porter, 614 V. Fitton, 112 Cuckson r. Winter, 458 V. Jones, 190 Cudlip V. Hundall, 227 r. Powell, 439 Culling V. Tuft'nall, 627 V. Sear, 82 142 CuUwick ('. Swindell, 625 V. Stacey, 386 Cumberland r. Bowes, 763 V. Underwood, 601 Cumberland's (Countess) case. 616 V. Vernon, 248 Cumming v. Bedborough, 560 564 V. Williams, 688 707 Curling u. Mills, 141 Davis r. Burrell, 317 559 741 742 Curtis V. Spitty, 264 547 I'. Edwards, 531 V. Wheeler, 13 224 422 V. Eyton, 752 Cust V. Middleton, 33 V. Gyde, 414 Cuthbertson v. Irving, 2, 213, 214, V. Hone, 99 253, 263, 409 531 532 I'. Jones, 190 622 629 Cutting i>. Derby, 343 394 745 V. Morgan, V. Nisbett, I'. Pen ton, 542 247 546 657 392 D. V. Shepherd, Davison v. Gent, 105 304 Daglish, Ex parte, 641 V. Stanley, 299 301 Daintry v. Brocklelmrst, 733 V. Wilson, 741 Dalby i'. Hirst, 604 753 764 Davy, Ex parte. 839 845 Dale V. Lister, 111 Dawe V. Cloud, 459 Dallman v. King, 169 Dawes v. Dowling, 645 Dalston v. Reeve, 532 Dawson ?;. Cropp, 486 Dalton V. Whittem,434, 438 623 646 V. Dyer, 182 678 Dames v. Heath, 183 V. Fitzgerald, 726 Dampier v. Pole, 183 V. Lamb, 542 Dancer v. Hastings, 429 V. Linton, 661 xl TABLE OF CASES CITED. [References are to the star paging.] PAGE PAGE Day V. Austin, G29 Doe V. Adams, 317 V. Duberley, 286 V. Alexander, 321 V. Fynn, 139 V. Allen, 312, 322, 325, 669 i\ Luhke, 114 V. Allsopp, 194 Dayrell v. Hoare, 202, 720 V. Amey, 55, 128,133,221, Dcakin v. Fenniall, 188 311,351 Dean v. Allalk-y, 621, 637 V. Archer, 336, 346, 358 V. Cartwright, 337 V. Baker, 333, 343 Deane v. Clayton, 724 i\ Bancks, 2C , 198, 312, 316, 669 De Brassac v. Martyn, 98 V. Barber, 232 Dec-harms v. Ilorwood, 12 V. Barton, 52, 53, 54, 267 Delaney v. Fox, 214 267, 409, 829 V. Bateman, 258, 317 De Medina v. Norman, 95. 244 V. Batten, 324, 356, 390, 749 V. Poison, 228, 538, 551 V. Bay ley. 340, 347 De NicoUs v. Saunders, 255, 395 V. Bell, 127 128, 219, 221, 228, Denby r. Moore, 561, 565, 568 333, 351 Dendy v. Niclioll, 322, 323, 355 V. Bcnhani, 375, 414 Denn v. Cartwright, 155 V. Benjamin, 306 V. Dolman, 311 V. Benson, 137, 382 V. Fearnside, 204, 228 V. Bevan, 275, 276, 661 V. Hopkinson, 137, 348, 382 V. Biggs, 338, 349 V. Kemeys, 130 V. Birch, 137 , 198, 313, 322, 324 V. Kawlings, 223, 340 V. Birchmore, 802 V. Walker, 318 V. Bird, 590, 618, 647, 667 Dennett v. Atherton, 677 V. Blakeway, 312 Dennis, Re, 148 V. Bliss, 312, 316, 663, 669 Denton r. Eichniond, 321 V. Bluck, 339 Derby (Earl) v. Taylor > 259 V. Bold, 341, 540 Derisley v. Custance, 288 r. Bond, 315, 587 Deslandes v. Gregory, 64 IK Bousfield, 61,62 Devine, E.r parte, 283 V. Boulton, 339, 341 Devonsliire (Duke of) I'. Barrow V. Bowditch, 181,310,314, Hematite Steel Co., 573 320, 796 Dibble r. Bouater, 394 453, 468 V. Brawn, 270 Dick r. Tolhausen, 549 r. Brayne, 805 Dickinson v. Grand Junction r. Brett, 228, 231 Canal Co., 709 r. Bridges, 22, 301 Digby ?;. Atkinson, 223, 592 V. Brindley, 324, 325, 587, 602, Dilkes ?•. Broadmead, 294 794 Dimuh v. Corlett, 391 V. Bromley, 805 Dinimock v. Hallett, 112 V. Brown, 152, 211, 212, 268, Din.'idale v. Isles, 144 228, 229 790 Direct Spanish Telegraph Co. v. V. Browne, 128, 332 Shepherd, 583, 588 V. Brydges, 322 Dixon r. Baty, 806 V. Bucknell, 52, 53, 55, 223, 341, V. Harrison, 421, 423 361 V. James, 689 V. Burlington (Earl of), 608 V. Smith, 491 V. Burrough, 207 Dobbyn r. Somers, 79,82 V. Burt, 136, 141 Do1)ell >\ Hutchinson, 92 r. Burton, 237, 360, 805 D<)l)ie r. Larkin, 533 V. Butcher, 8 Dobson c. Blackmore, 733 V. Butler, 349 Dod V. Monger, 488 V. Byron, 319 Dodd r. Acklotn, 303, 306 V. Cadwallader, 53, 233 V. Burchell, 142 , 702, 714 V. Calvert, 204, 205, 350, 356 V. Morgan, 4. Abel, 182 , 358, 674 V. Cartwright, 181 TABLE OF CASES CITED. xli [References are to the star paging.] Doe V. PAGE PAGE Catamore, 184 Doe V. Gladwin, 265, 312, 324, 320, Cavaii, 199, 205 328, 655, 808 Cawdor (Earl), 3(31, 302 V. Glenn, 288, 308 Chainberlaine, ■ 237, 340 V. Godwin, 314 Chambers, 15 V. Goldsmith, 317, 318 Cliaplin, 848 V. Goldwin, 235 842, 345, 747 Church, 340 V. Goodier, 233, 341 Clare, 01 V. Gower, 32 224, 882, 300, 361 Clarke, 158 231, 275, 290, 003 V. Graflon, 333, 350 Clifford, 800 V. Graton, 225 Clifton, 213 V. Green, 154 155 220, 337, 347 Cockell, 32, 338 V. Groves, 227 Coombs, 187 V. Grubb, 860, 361, 362 Cooper, 301,421,801 V. Guest, 91, 121, 177, 604 Corbett, 339 V. Guy, 49, 287 Courteney, 300, 301 V. Halcombe, 212 Cox, 227 228, 232, 729 V. Hales, 52, 233, 341 Crago, 133, 222, 223 V. Hall, 355, 806 Creed, 389, 802 V. Hare, 399 Crick, 344, 345, 353, 354, V. Harrison, 807 350, 357 V. Harvey, 887, 389 Crouch, 018 V. Hawke, 663 CuUiford, 852 V. Hazell, 340 Cuthell, 542 V. HcUier, 61, 312, 691 Danvers, 312 V. Helling, 342 David, 310 I'. Hilder, 272, 342 Davies, 234, 235, 310, V. Hiley, 82, 540 413, 803 V. Hinde, 375 Day, 150 185 197, 204, 235 V. Hodgson, 792 Derry, 131 V. Hogg, 000 Dixon, 155, 358 V. Horn, 885, 849, 614 Dobell, 833, 334, 351 V. Home, 213 Dodd, 132, 145 V. Houghton, 185 Donovan, 833, 335, 352 V. Howard, 350 Donston, 270 V. Huddart, 803 Dunbar, 353 V. Hughes, 53, 343, 350, 352, 803 Durnford, 853, 003 V. Humphrey, 356 Dyson, 320 V. Hunt, 176, 857 Edgar, 237, 340 V. Ingleby, 316 Edwards, 50, 146, 207, 209, I'. Inglis, 339, 346, 356 317, 548, 798 V. Jackson, 237, 345, 588, 747 Elsam, 312, 000 V. Jameson, 802 Errington, 11 V. Jenkins, 4 Evans, 2 360, 301, 061 V. Jepson, 315, 794 Eykins, 325 V. Johnson, 151, 324, 350, Flynn, 311, 360 351, 877 Forwood, 301 338, 342, 352 V. Johnston, 303, 334 Foster, 32, 342, 343, 340, V. Jones, 58, 228, 270, 312, 324, 349, 540 340, 590 603, 055, 742, 808 Francis, 343 V. Keeling, 666 Frankis, 267 V. Kennard, 170 182, 674, 805 Franks, 320, 808 V. Kightley, 347, 352 Frowd, 231, 300, 301, 302 t'. King, 805 Fuchau, 320 V. Kneller, 313, 370 Galloway, 140 V. Knight, 190 Gee, 800 V. Lamb, 349 Geeckie, 154 155, 219, 224 V. Lambley, 350 Gilbert, 203 V. Laming, 654, 600 Giles, 341 V. Lawder, 228, 238, 339, 341 xlii TABLE OF CASES CITED. [References are to the star paging.] PAGE PAGE Doe V. Lawrence, 159, 317 Doe V. Powell, 215, 311, 659 V. Lea, 223, 347, 348, 351 V. Price, 229, 619 r. Leach, 805 r. Prideaux, 223, 230 V. Leatherheac 209 V. Pritchard, 47, 316, 322 r. Levi, 344, 354 i\ Pullen, 238 V. Lewis, 52, 318, 325, 331, V. Pyke, 306 341, 602, 805 V. Quigley, 231, 341 r. Lightfoot, 235 V. Radcliffe, 388 V. Lines, 348, 351 V. Raffan, 334, 339, 340, 351 V. Litherland, 363 I'. Ranisbottom 9 214 V. Lloyd, 69, 79, 84, 380, 387 V. Read, 343 V. Lock, 159, 178, 179 V. Rees, 316, 322, 323, 742 V. Long, 360, 361, 362 V. Reid, 673 V. Lucas, 354 V. Rendle, 200, 208 r. Maberly, 287 r. Rhodes, 350 V. M'Kaeg, 228, 230, 340 V. Rhys, 801 V. Maniby, 220, 223, 333 V. Richardson, 150 V. INLiisey, 341 V. Rickarby, 662, 806 r. Marchetti, 206, 314, 372 I'. Ridout, 302 1-. Massey, 697, 742 V. Roberts, 38, 220, 363 r. Masters, 319, 796, 808 V. Robinson, 342, 344 V. Matthews, 208, 348, 350 V. Rock, 227, 228, 237 V. Meux, 168, 323, 593, 602 V. Rogers, 34, 389 V. Meyler, 401 V. Rollings, 4, 360, 361, 362 V. Miles, 339 V. Rugeley, 171 r. Miller, 237 V. Rugeley (CI urchwardens. V. Mills, 360 &c.), 172, 668 V. Milward, 299, 301, 303, 334, V. Samuel, 152 223 338, 347, 351 347, 350 V. Sandham, 200 V. Mitchell, 268, 423, 807 V. Sayer, 231, 339, 341 V. Mizem, 343, 802 r. Scott, 340 V. Moffatt, 55, 222, 339, 351 r. Seaton, 10, 103, 214 V. Morphett, 349, 352 I'. Selwyn, 152 I'. Morris, 61, 697 V. Shadwell, 360 V. Morse, 9 , 210, 223, 230, 351 V. Sharpley, 359,815 V. Moyes, 742 V. Shawcross, 321 ?'. Murreli, 237, 742 V. Shewin, 654 V. Nainby, 155, 337 V. Skirrow, 52, 130,213,214 V. Noden, 338 V. Smaridge, 155, 220, 223, 231, V. Old, 326 333, 337 V. OUey, 233, 341 V. Smith, 164, 200, 221, 267, 269, V. Ongley, 55, 213, 223, 317, 270, 276, 339, 349, 350, 852 344, 345 V. Smythe, 807 V. Osborne, 134 V. Snowden, 203, 350 V. Owen, 272 i\ Somerton, 353 r. Oxcnham, 455 I'. Somerville, 836 V. Palmer, 184, 356 ?". Spence, 850 V. ]*arker. 360 V. Spiller, 852 V. Parry, 272 V. Spry, 666 V. Pasquali, 360, 361 V. Stagg, 299 ji. Paul, 322, 304 V. Stanion, 237, 304, 361 V. Payne, (i(i2 V. Stanton, 236, 797, 801 V. Peck, 324, 055, 808 V. Stapleton, 152 V. Perrin, 348 V. Steel, 349, 356 V. Phillips, 182, 228, 310, 340, V. Steele, 144, 227, 340. 808 074, 796, 806 i\ Stennett, 608 V. Pittnian, 361, 362 V. Stephens, 206, 208 V. I'oole, ;!01 V. Steven, 314 V. Porter, 220 289, 336, 338, 363 V. Stone, 213 TAI5LE OF CASES CITED. xlilL [References are to the star paging.] Doe V. Stradling, 236, 797, 801 V. Stratton, 221, 231, 339 V. Strickland, 59 V. Sturges, 49, 287 V. Sumiiiersett, 11, 156, 343, 359 V. Sutherland, 802 t'. Sutton, 588, 602, 655 V. Taniere, 9, 20, 128, 133, 210, 219, 341, 345 V. Tatchell, 49 V. Terry, 32, 338, 342 V. Thomas, 19, 20, 34, 199, 22(5, 228, 229, 274, 297, 413 V. Thompson, 54, 55, 91, 214 V. Tidbury, 697, 742 V. Timothy, 349 V. Tindal, 805 V. Tom, 233, 341 V. Tressider, 62 V. Turford, 354 V. Turner, 229, 231 r. Ulph, 117, 150, 654, 655 V. Vince, 348 V. Wainwright, 805 V. Walker, 211, 309, 421 V. Walters, 342, 344 V. Wandlass, 320, 321 V. Ward, 335, 351 V. Watkins, 344, 347, 350, 353, 354 V. Watt, 182, 313 V. Watts, 8, 9, 210, 223, 230, 335, 351, 662 V. Webster, 135, 139 r. Weller, 8, 9, 43, 55, 223, 230, 335, 351 V. Wells, 360, 806 V. Wharton, 58, 272 V. White, 201 V. Whitroe, 215 I'. Whitt, 267 V. Whittick, 360 V. Wiggins, 268, 541, 548, 807 V. Wilkinson, 231,335,347 V. Williams, 137, 180, 206, 344, 347, 363, 742, 806 V. Wilson, 321 V. Withers, 202 V. Wonibwell, 349 V. Wood, 220, 225, 227, 305, 338, 340, 3()3 V. Woodbridge, 324, 669, 808 V. Woodman, 341, 344, 354 V. Worsley, 659 V. Wrightman, 344, 347, 353 V. Wyndham, 216 V. Yarborough (Lord), 20, 24 Doherty v. AUman, 606 Dolby V. lies, 541, 549 Dollen )•. IJatt, 287, 2 Dolling V. Evans, Dolorct r. Hothschild, Donellan v. Read, Doran v. Carroll, Dormer's ease, Dorrell v. Collins, Dossee r. East I. Co., Doughty V. Bowman, r. Styles, Douglas V. Wiggins, Dowell V. Dew, Down V. Thompson, Downingham's case, Downs ('. Cooi)er, Dowse r. Cale, V. Earle, Drake v. Mitchel, Drant v. Browne, Draper r. Crofts, V. Thompson, Dreesman v. Harris, Drew V. Bayly, Drewell v. Towler, Drewett v. Sheard, Druce v. Denison, PAGE !85, 530, 531, 532 90 116 88, 219, 386 612 796 178 227 165 58 612 101, 117 651 61, 62 214 591, 593 591, 593 398 94, 104, 186 543, 743, -746 460, 463 513 49 717 711 286 Drury v. Macnamara, 99, 128, 133,675 V. Molins, 613 Drury Lane Theatre Co. r. Chap- man, 83, 294, 540, 546, 553 Duberly v. Page, 696 Duck V. Braddyll, 185, 491, 492, 495, 640 Duddell V. Simpson, 265 Dudden v. Clutton Union, 707, 715 Dudley v. Folliott, 679, 683 V. Warde, 627, 636 Dugdale i\ Robertson, 176 Duke V. Ashby, 532 Dnmergne r. Rumsey, 438, 637 Dumper v. Syms, 661 Dumpor's case, 657 Duncan v. Meikleham, 460 Dungay r. Angove, 535 Dunk V. Hunter, 133, 413, 417, 418 Dunn V. De Nuovo, 532 V. Sayles, 177 V. Spurrier, 8 Dunraven ?•. Llewellyn, 692 Duppa V. Mayo, 324, 394, 453 Durell V. Pritchard, 97 Durham and Sunderland Rail. Co. V. Walker, 177, 701, 734 Dyas V. Cruise, 62, 92, 388 Dyer v. Carter, 703 V. Green, 183 Dyke, Ex parte, Re Morrish, 280 Dykes v. Blake, 244 xliv TABLE OF CASES CITED. [References are to the star paging.] E. Eadie v. Addison, 122 V. Atkinson, 105 Eadon v. Jcffcock, 176 Eads V. Williams, 115 Eagleton v. Gutteridge, 187, 199, 207, 420 Earle i'. Maugham, 561, 731 East V. Harding, 60 East India Co. v. Vincent, 8 East & West India Dock Co. v. Hill, 281 East London W. W. Co. i-. Mile End Old Town Trustees, 135 Eastcuurt r. Weeks, 61 Easterby v. Sampson, 163, 256 Eastern Counties Rail. Co. v. Broom, 503 Easton v. Pratt, 61, 201, 202, 589 Eaton V. Jaques, 161, 261, 407 V. Lyon, 306, 367 V. Southbv, 438, 442 V. Swansea W. W. Co., 087, 711 Ecclesiastical Commrs. v. Merral, 15 Ecclesiastical Commrs. of Ireland r. O'Connor, 380, 402, 410, 418 Ecclcston V. Clipsham, 11 Edgar r. Blick, 94, 186 Edge V. Boileau, 678, 682 V. Strafford, 85, 128, 537 Edgson V. Cardwell, 518 Edmonds r. Eastwood, 379, 506 Edmondson r. Nuttall, 413, 453, 520 Edwards v. Dick, 20 V. Etherington, 173 V. Hodges, 837 In re, 120 t'. Jones, 55 V. Milbank, 201 V. Kecs, 382 t'. West, 374 V. Wickwar, 211, 254, 266, 307 Edwick r. Hawkes, 672, 742 Efford V. Burgess, 534 Egerton v. Sheafe, 390 Egremont (Earl) v. Pulman, 743 Eldridge r. Stacey, 461, 4()3 Electric Telegraph Co. v. Moore, 537 Elgar !'. Watson, 553, 744 EUard v. Llandaff (Lord), 107 V. Bishop, 620, 624, 639, 049 V. Ince, 45 V. Johnson, 252 I'. South Devon Rail. Co., 7(>7 V. Taylor, 415, 406 Ellissr. Elli.'is, 805 Ellmore r. Kingscote, 91 Elsey V. Liityens, 194 Elston V. Rose, Elwes, He, V. Elwes, V. Mawe, Elworthy v. Sanford, Embrey v. Owen, Emery v. Barnett, Emmet v. Dewlmrst, Empson v. Soden, England v. Cowley, V. Slade, V. Wall, Enys V. Donnithorne, Erish I!. Rives, Ernot V. Cole, Erskine v. A dean e, Essex V. Capel, Etherton v. Popplewell, Evans, In re, i\ Bowen, V. Curtis, V. Davis, V. Elliott, PAGE 811, 824 566 217 620, 625, 636 248, 743 708 409, 813 112 618, 637 464 269 699 152, 160, 161 60 402 87, 598 725 478 294 520 676 314, 323, 665 52, 53, 55, 267, 415, 425, 465 V. Evans, 541 Ex parte. In re Watkins, 273 V. Mathias, 58, 59, 420 V. Vaughan, 144, 676, 678, 683 V. Walshe, 109 r. Whittingstall, 333 V. Wright, 482, 485, 524 Wyatt, Evelyn i\ Kaddish, Everett )\ AVilkins, Ewart t". Coclirane, V. Graham, Ewer r. Clifton, Exhall Mining Co., In re, Eynsham's case. Eyre r. Dolphin, V. Shaftesbury, 323 593, 733, 738 70 713 83, 179, 720 398 433 581 371 40 Eyton c. Denbigh, &c. Rail. Co., 433 F. Faiiian and Windsor's case, 322 V. Winston, 322 Fairbrother w. Simmons, 243 Fairburn v. Eastwood, 639 Fairclaim v. Shamtitle, 801 Fairfax v. Gray, 426 Fairtitle v. Gilbert, 81 Fallon V. Robins, 217, 358 Falmouth (Karl of) v. Thomas, 753 Farewell !-. Dickinson, 531 r'armer v. Rogers, 298 Farns worth i'. Garrard, 660 TABLE OF CASES CITED. xlv [References are to the star paging.] PAGE PAGE Farrall v. Davenport, 101 Fletcher v. Wilkins, 500 V. Hilditch, 177 Flight V. Bentley, 254 Farrance v. Elkington, 749 V. Bolland, 118 Farrant v. Olniius, 391 V. Booth, 111 244 V. Thompson, 646 r. Clarke, 533 Farrer v. Nelson, 719 V. Glossop, 166 Faulkner v. Johnson, 503 V. Thomas, 688 704 V. Llewellyn, 09 100 102 114 Flinn v. Calow, 135 Faviel v. Gaskoin, lo8. 753, 761 784 Flint V. Brandon, 184 Fawkcs ('. Joyce, 450 Flitters r. AUfrey, 816 Fay V. Prentice, 734 Foley V. Addenbroke, 160, 530, 628, Fearon v. Norvall, 814 639 645 670 Fell v. Whittaker, 502 525 V. Barnell, 287 Feltham v. Cartwright, 714 Folkard r. Ilemmctt, 69(i Felthotise v. Bindley, 104 Folkingham v. Croft, 65(! Female Orphan Asylvim ,In ■e, 16 Foote V. Berkeley, 150 151 Fenn v. H-arrison, 62 F()(|uet V. Moor, 93, 219 299 r. Smart, 198, 317 319 Ford r. Tiley, 95 Fenner v. Duplock, 10 269 V. Tynte, 439 Fenny v. Child, 157 Fordham v. Ackers, 502 507 Fentiman v. Smith, 714 Foreman, Ex ])arte, Price, In re, 279 Fenton r. Clegg, 49. 287 Forman v. Dawes, 355 V. Logan, 451 Forrer v. Nash, 99 113 247 Feret v. Hill, 64, 198, 665 Forster v. Cookson, 491 495 Ferguson v. Black, 597 V. Rowland, 62, 88 ,92, 104, V. Cornish, 155 195 196 V. Wilson, 97 Forsyth v. Jervis, 185 Festing v. Tayler, 555 565 Foss V. Racine, 567 Few I'. Perkins, 1G9, 587, 593 602 Foster v. Mapes, 679 683 Field, In re, 123 V. Pierson, 679 683 V. Adames, 442 V. Rowland, 95 , 103 127 179 V. Mitchell, 464 Foulger v. Taylor, 469, 495 497 Fielden \k Slater, 665 Fovey v. Fletcher, 566 V. Tattersall, 764 Fowell (!. Frank, 156 Filliter v. Phippard, 651 V. Frantz, 358 Finch V. Miller, 156 417 Fowkes V. Joyce, 442 V. Underwood, 366, 368 Fowle V. Welsh, 679 683 Findon v. M'Laren, 440 Fowler, In re. 78 Finlay v. Bristol and Exeter Rail. Fox V. Prickwood, 204 Co., 133, 222, 341, 345, 545 V. Swann, 661 Firth V. Greenwood, 0: }, 92, 115 Frame v. Dawson, 101 V. Purvis, 415, 466, 489 V. Dowdeswell, 821 Fisher v. Algar, 479 V. Wyatt, 440 V. Dixon, 625, 627 636 Francis r. Harvey, 214 V. Marsh, 541 Franklin v. Carter, 198 , 420, 543, 505 Fishmongers' Co. v. Dimsdale, 187 Franklinski r. Ball, 51, 52, 54, 110 Fishwick v. Milnes, 467 Frankum v. Falmouth (Earl), 711 V. Vicars, 90 Eraser v. Skey, 172 Fitzgibbon v. Scanlan, 369 Freeman v. Cooke, 647 Fitzhardinge (Lord) v. Pritchett, 617 V. Jeffries, 649 Fitzherbert r. Shaw, 621, 640, 644 V. Roslier, 459 523 Fitzmaurice v. Bayley, 63 V. AVest, 146, 204 Fitzwilliani's case. 199 French r. Patten, 184 Fleming v. Gooding, 547 V. Phillips, 465 V. Neville, 194 Freshfield v. Reed, 209 Fletcher v. Dyche, 392 Frewen r. Phillips, 704 V. Manning, 642 Friar r. Gre^', 170, 358 ?;. Marillier, 468, 469 Frogley v. r>ovclace (E arl), 184 V. Ilylands, 469, 715 Frosel c. Welsh, 60 xlvi TABLE OF CASES CITED. [References are to the star paging.] PAGE Frost I'. Knight, 95 J!. Moulton, 105 Frusher l'. Lee, 481 Fry V. Fry, 292 Fryan /;. \Vetheread, 141 Fryer t: Coombs, 209, 5:52 Fryett r. Jeffreys, 324 Fulder, Ex pai'te, 839 Fuller V. Abbott, 208, 555, 561, 5(35 V. Fenwick, 392 Furley v. AVood, 137, 348 Furness (•. Meek, 190 Furnival v. Coombes, 545 V. Crewe, 366 Furnivall v. Grove, 173, 299, 302, 303, 306, 359, 366, 550 Fursdon v. Clogg, 538, 548 Fury V. Smitli, 193, 194 G. Gabell v. Shevell, Gage V. Collins, V. Smith, 616, Gale I'. Bates, 605, Galgay v. Great Southern and Western Hail. Co., Galsworthy v. Strutt, Gambrell v. Falmouth, 465, Gamon v. Vernon, Gandy v. Jubber, 735, Gange v. Lockwood, Gardiner v. Colyer, V. Williamson, 80, Ex parte, Gardner r. Fooks, Garnett v. Bradley, 489, Garrard r. Frankel, Garratt v. liancefield, Garrett r. Sharp, Gartness Iron ("o., lie, Garton v. G. W. Kail. Co., Gaskell v. King, 565, V. Spry, Gaslight &Coke Co. r. Tlollowav, V. Turner, 161, 198, 533, Gaston r. Frankum, Gatewaril's case, Gatliercole v. Smith, Gauntlett v. King, Gaved v. ]\Tartyn, Gawlcr v. Chaplin, Gay V. Matlicws, Gayford v. MoiTatt, fiearns v. Baker, (jioddings r. Geddings Geeekie v. Monk, Gent v. Cults, 71, 451, 689, 562 497 619 763 715 391 486 264 739 588 720 418 116 91 516 217 294 705 434 519 728 663 780 664 718 685 97 523 708 494 500 702 719 371 219 520 PAGE 499 137 493 232, 515 567 George v. Chambers, Gerrard v. Clifton, Gethin t'. Wilks, Gibbs V. Cruickshank, V. Stead, Gibs V. Hooper, 568 Gibson v. Doeg, 669 r. Hammersmith Rail. Co., 643 V. Holland, 88 1-. Ireson, 440 V. Kirk, 536 V. Wells, 610 Giddens v. Dodd, 358 Gie V. Rider, 300 Gilbertson v. Richards, 146 Giles V. Hooper, 160, 556 V. Spencer, 412, 453 Gilham v. Arkwright, 469 Gillingham r. Gwyer, 457 Gilman v. Elton, 441 Gimbart i'. Pelah, 475 Girardy v. Richardson, 226, 533 Giraud v. Richmond, 91 Gisbourn ;•. Hurst, 440 Gladman v. Plumer, 53, 55, 267, 420, 425 Glasgow (Earl) v. Hurlet Alum Co., Glegg, Ex Latham, lie, Glen V. Dungey, Glover r. Cope, 278 V. Halkett, V. Lane, Glynn v. Thomas, Godley v. Frith, Goff ('. Harris, Goode ?'. Burton, r. Howells, Goodright v. Cater, i\ Cordwent, V. Davids, v. (Gregory, V. :Mark, i\ Richardson, i\ Straphan, V. Vivian, Goodson V. Gouldsmith, Goodtitle v. Bailey, r. Funucan, V. Herbert, V. Morse, I'. Paul, V. Saville, ?•. Southern, Goodwin r. Chcveley, r. ]>ongburst. 176 253 537 278, 280 186 696 465, 525 685, 698 640 248 335, 347 319, 796 355, 356 324, 662 190 156, 181, 184 152, 155 43, 190 620 596 135 20, 200, 202, 204, 205, 206, 208, 21(> 228, 340, 806 213 139 619 139 450 60, 61 Goold I-. (ireat Coal Co., Western Deep 14 TABLE OF CASES CITED. xlvii [References are to the star paging.] PAGE Gordon v. Smart, 117 V. Trcvelyan, 90 Gore v: Bowser, 270 V. Gibson, 46 V. Gofton, 495 V. Lloyd, 395 Goreley, E.r partp. 164 , 651 ,729 Gorton v. Falkner, 435 4;58 451 V. Gregory, 165 ,530 Goss V. Nugent (Lord), 9 3, 94 Gott V. Gandy, \1?> 595 ,598 Gould, Ex jiarte, Walke •,In re. 275 Gouldswortli v. Knights 75 ,428 Gourley v. Somerset, 659 Grace, Ex parte, 71 V. Morgan, 803 Graham v. Peat, 738 V. Tate, 560 V. Wade, 554, 557 569 r. Wiclielo, 305 Granger v. Worms, 243 Grant r. Ellis, 378 455 V. Gunner, 69(5 I'. Oxford Local Board, 125 Grantham v. Thornborough, 390 Grattan v. Wall, 532 Gravenor v. Woodhouse 268 807 Gray v. Bompas, 542 743 V. Chamberlain, 395 Great Central Gas Consumers 'Co. V. Clark, 583 Great Northern Rail. Co . I'. Mossop, 820 Great Western Rail. Co. ;. Cripps, 107, 111 Greatrex v. Hayward, 710, 712 Green, //; re. 293 V. Austin, 496 V. Bridges, 327, 328 r. Eales, 690, 595 V. Edwards, 144 V. Home, 528 V. James, 213, 214 V. Kopke, m V. Listovvcll, 289 V. London Cemetery Co. 545 r. London General (Omnibus Co., 503 V. Low, 115 V. Price, 391 V. Saddington, 242 V. Smith, 111 V. Wise, 523 Greenaway v. Adams, 659 V. Hart, 165, 318, 386 Greene v. Cole, 609, 626 Greenhow v. Isley, 626 PAGE Greenslade v. Halliday, 74 V. Tapscott, 391, 660 Greenwood v. Tyber, 43 Gregg V. Wells, 360, 647 Gregory v. Doidge, 268, 269, 396 V. Mighell, 91, 101 V. Wilson, 100, 117, 328 Grescott v. (ireen, 262 Gresiiam House Estate Co. v. Rossa Grande Mining Co., 354 Gretton v. Diggles, 263 Grey v. Cuthbertson, ]()4 V. Friar, 170 Grey de Wilton v. Saxon, 613 Griilenhoofe v. Daubuz, 585 Griffin v. Griffin, 369, 370 (•. Scott, 479 V. Stanhope, 181, 184 r. Tomkins, 325, 669 Griffith V. Hodges, 408 Griffiths, In re, 71 V. Chiciiester, 398 V. Earl Dudley, 432 r. Puleston, 454, 755 V. Stephens, 500 r. Tombs, 761 Grimman i'. Legge, 302,306,406,408, 550, 552 Grimstead v. Marlow, Grimwood v. Moss, (irlssell r. Robinson, Groom v. Bluck, Groombridge r. Fletcher, Grosvenor v. Grosvenor, V. Hampstead Junction Rail Co., r. Sherratt, Grove, Ex parte, Gruffly V. Pindar, Grute V. Locroft, Grymes v. Boweren, Gubbins v. Creed, Gudgeon v. Bessett, Gullet V. Lopes, Bart., Gulliver v. Burr, V. Cozens, Gundry v. Feltham, Gunning v. Gunning, Gurr V. Scudds, Gutteridge v. Munyard, Guy );. West, Gwatkin v. Bird, Gwillim i\ Stone, Gwinnell i\ Earner, Gwinnett ;•. Phillips, Gwynne v. Maynestone, Gybson v. Searls, 685, 700 323, 454 196 260 495 247 140 78 283 616 11, 44, 286 630 78 103, 190, 537 693 338 46, 454 725 130 187 589, 668 613 59 675 599, 736, 739 465, 472 154 67, 80, 300 xlviii TABLE OF CASES CITED. [References are to the star paging.] H. Haberdashers' Co. r. Isaac, Haddon v. Arrowsmith, Had ley v. Taylor, Haigh V. North Brierly Union, Haines v. Burnett, V. Welch, 454, Haldane v. Johnson, V. Newconib, 580, Hale, Ex parte, Binns, In re, r. Oldroyd, 710, Haley v. Hammerslev, 625, Hall v. Ball, ' 248, V. Betty, 95, V. Burgess, 304,407,536,542, V. Butler, V. City of London Brewery, V. Hall, V. Harding, 424, V. Lund, V. Seabright, V. vSwift, r. Warren, 98, V. Wright, Hallen v. K under, 620, 641, Hallifax v. Chambers, Halton V. Haywood, Hanierton v. Stead, Hamilton r. Buckmaster, V. Clanricarde, Hammond's case, Hammond i-. INIather, Hampshire v. Wickens, 120, 121, Hanbury v. Litchfield, Hancock v. Austin, 125, 376, 413, V. Caffyn, Hand r. Hall, Ilandcock r. Foulkes, Hands v. Slancy, Hannier r. Cliance, llanmer (Lord) v. Flight, Harbin r. Harton, H;irliri62 344, 45i), 523 (!37 40(5 321,807 St. James 220, 333 415,416 609 404 200 307 601 481 289 262, 529 TABLE OF CASES CITED, xli [References are to the star paging.] Hawtrey v. Butlin, Hayes v. Bickcrstaff, t'. Caryll, Ilayford v. Criddle, Hayling v. Oakey, Haylock v. Sparke, Hayne v. Cummings, PAGE 642 674, 678 115 265 750 «;56 ?, 128, i;)2, 181, 223, 311, 313, 601 V. Maltby, 162 Hayton Granite Co., In re, 434 Hayward r. Parke, 95, 244, 246, 678 Haywood v. Brunswick Provi- dent Bonetit Building Society, 163 V. Cope, 89, 106, 110 V. Silver, 657 Hazeldine v. Heaton, 259 Heap i\ Barton, 643 Heaphy v. Hill, 115 Heard v. Pilley, 62, 92, 127 Hearn v. Allen, 141 Hearne r. Tomlin, 237, 546 Heath v. Elliott, 693 Heatherley v. Weston, 11 Heaven, In re, 433 Heawood i\ Bone, 447 Hefford v. Alger, 487, 520 Hegan v. Johnson, 133, 417 Hegarty ik Milne, 94 Heisir v. Grout, 187 Hellawell v. Eastwood, 435, 438, 622 Hellier v. Casbard, 160, 288, 291 V. Sillcox, 536, 542 Hellini-- v. Lumley, 98, 109, 111 Helstone, 7?p, 811, 824 Hemingway v. Fernandes, 163 Henchett v. Kimpson, 491, 495 Henderson v. Charnock, 335 V. Hay, 121 V. Hudson, 265 V. Hears, 408, 544 V. Squire, 407, 741 Henning v. Burnet, 701, 717 Hennings v. Brabason, 154, 337, 338 Hensloe's case, 288 Henstead's case, 11, 43, 230 Herbert v. Laughhiyn, 695 I'. Maclean, 678 Herbin v. Chard, 44, 286 Hereford (Bisliop) v. Scorey, 20 Herlakenden's case, 618, 625 Hersey v. Giblett, 90 Hewitt V. Isham, 179 Hewlins r. Shippam, 698, 714 Hewson v. South-Western Rail. Co., 140 Hext i>. Gill, 180 Heys V. Tindall, 64 Hibblewhite r. M'Morine, 199 Hickling V. Bowyer, 287 PAGE Hickman ;'. Isaacs, 667 V. Machin, 52, 53, 267, 536, 538 Hicks V. Downing, 254, 258, 264 Hide V. Skinner, 865 Higgins V. Sainels, 106 V. Senior, 6;5 Higginson v. Clowes, 112 Higham r. Kabctt, 699 Hill, E.r j),irf<', Roberts, In re, 283 V. Barclay, 1 16, 603, 647, 656 V. E. & W. India Dock Co., 279 I'. Grange, 141, 384, 3!»5 V. Kempshall, 319, 320, 796 r. Batten, 184 V. Ilamm, 467, 549 V. Saunders, 10, 43, 268, 285, 531, 537 V. South Staffordshire Rail. Co., . 219 V. Tupper, 125, 716 Hillman r. Mayhew, 9(» Hills V. Street, 483 Hilton V. Green, 719, 726 V. Tipper, 97, 247, 659 Hinchliffe r. Kinnoul, 142, 211, 703 Hinchman r. Isles, 229 Hinde v. Gray, 176 Hindle v. Blades, 507 V. PoUitt, 605 Hindley ;.. Emery, 97, 113, 612 Hine r. Dodd, 195 Hinton v. Sparkes, 393 Hirst V. Horn, 746, 790 Hitchin v. Campbell, 549 Hitch man v. Walton, 645, 73:5 Hobson V. Cowley, 304 V. Middleton, 681 V. Todd, 689 Hoby r. Roebuck, 386 Hodesdon v. Gresil, 690 Hodges I'. Lawrence, 458 Hodgkinson v. Crowe, 122, 588 i\ Ennor, 715 Hodgson r. Anderson, 398 ?'. Carlisle Local Board, 570 i\ Gascoyne, « 492 V. Johnson, 242 Hodson ('. Siiarpe, 193 1-. Walker. 81(! Hbgan v. Hand, 226 Hogart r. Scott, 118 Hogg V. Brooks, 359 V. Norris, 335, 382 ITolcombe v. Hewson, 393, 672 Holcroft V. Steel, 82 Holder i\ Coates, 617 V. Soulby, 226, 843 r. Taylor, 172 Holding V. Pigott, 138, 761 TABLE OF CASES CITED. [References :ire to the star paging.] Holford V. Hatcli, PAGE 264, 265, 287, 5o6, 542 83, 546 197, 402, 418 414, 465 104 r. Pritchard, Holgate 1-. Kay, Holland r. Bird, f. Eyre, V. Kensington Vestry, 134 Holland v. Falser, 378 Hoinian v. Exton, 148 Holme V. Brunskcll, 216 Holmes ;'. Bellingham, 698 V. Blosrg, 70 V. Elliott, 703 (;. Goring, 703 Holt V. Collver, 668 Holtzappfell v. Baker, 409, 592 Holz V. lloebuck, 88 Homes v. Pearce, 129 Honeycomk v. Waldron, 194 Honeyman v. Marryatt, 103, 104, 105 Hood V. Barrington, V. (jglander, Hool V. Bell, Hooper r. Clark, V. Ramsbottom, Hopcraft v. Keys, Hope r. Atkins, V. Bootli, V. Gloucester (Mayor), ?'. Hope, Hopkins r. Helmore, Hopkinson v. Lee, V. Lovebridge, Hopper, He, Hopwood V. Barefoot, V. Sciiolield, V. Wlialey, Horn V. Baker, Hornby v. Cardwell, Home V. Benbow, ?'. Lewin, V. Mackenzie, Horner r. FlintolT, )•. Graves, Hornidge r. Wilson, Ilorsefall v. Testw, Horseley t\ Rush, Horsey ?'. Graham, Horsfali v. Davy, r. Hey, ?•. IMatiier, Morsl'ord r. Webster, Hosking v. I'liillips, Hoskina r. Knight, V. Robins, Hotham v. Hast India Co., Hotlcy r. Scott, Hougliton '•. K(rnig, How V. Greek, 126, 103, 378, 88 119 427 19 248 420 135 237 364 114 384 160 276 648 556, 568 733 162,291,292 622, 639 265 610 414, 459 710 392 392 162, 291, 292 1(59, 593 62 87. 89 472 641,646 175, 597,611 412 493 \ Brown, 224 Jacob V. Kinir, 480, 500 V. Warren, 138, 175, 223, 603, Jacobs V. Seaward, 611 (i08. 761 764 Jacomb v. Ilarwood, 49 Hyatt V. Griffiths, 222, 311, 335, 740, 744 Jacques r. Witliy, James ik Cochrane, 172 176 Hyde v. Graham, 126 i\ Dean, 228, 289, 363 V. Hill, 558, 569 V. Emery, 160 V. Moakes, 305 536, 542, 543 V. Jenkins, 8 V. Warden, 122, 274, 677 V. Landon, 213 V. Warts, 324, ()65 r. Lichfield, 112, 241 V. Wrench, 104 V. Phiiit, Jamieson r. Trevelyan, 82, 142 517 I. Jaques v. Millar, 90,98 Jay, Ex parte, Ri^ Harrison, 275 Ibbert c. Do la Salle, 461, 681 V. Richardson, 604, 677 Ibbotson V. IVat, 714, 724 Jeakes v. White, 709 Ibbs V. Richardson, 407 543 741, 743 Jeffer v. Gifford, 707 Icely V. Grew, 390, 393 Jeffery v. Bastard, 507 I^gultlen V. May, 1()0, 172, 3()5, 366 V. Stei)liens, 114 lies V. Assessment Com mittee of Jeffrey v. Neale, 555 West Ham Union, 562 Jeffreys v. Evans, 180, 677, 683, Imperial Gaslight Co. V. W. L. 718, 726 June. Gas Vo. 583 Jenkins v. Church, 8 Indermaur v. Dames, 739 V. Gething, 622 Inderwick 7-. Leach, 591 V. Green, 18, 24, 89 119, 178 Inkop V. Morchurch, 469 Jenner v. Clegg, 356, 378, 413,418, Inman r. Stamp, 87, 128 453 538, 553 Insole V. James, 711 V. Yolland, 449, 480 Ipswich (Bailiff) v. Martin, 401 Jennings v. Major, 130, 195 Ireland i'. Bircham, 683 V. Throgmorton, 198 226, 533 Irish Society v. Needhani, 378 Jenny v. Brook, 178 Irnham v. Child, 108 Jeron v. Tomkinson, 190 Irving V. Asken, 820 825 Jervis v. Tomkinson, 144, 151, 161, Isaac, In re. 148 358 382, 669 Isherwood v. Oldknow, 35 ,61, 201, 389 Jesser v. Gifford, Jevens v. Harridge, 734 291 Israel v. Simmons, 539 546 Jewel's case. 413 Isteed V. Stoneley, 163 Jinks V. Edwards, 95 ,99, 128, 133, Ive V. Sams, 178, 298 300 675, 683 Iveson I'. Moore, 699 Job V. Banister, 368 Izon V. Gorton, 408 546, 552 592 John V. Jenkins, Johns r. Wiiitley, Johnson v. Clay, 299 198 334, 469 312, 751 533 J. V. Faulkner, r. Gallagher, 412, 437 118 Jack v. M'Intyre, 140 V. Jones, 54 Jackman v. Hoddesden, 60 c. King, 104 lii TABLE OF CASES CITED. PAGE Johnson v. Mason, 215 V. Medlicott, 46 V. Mills, 803 V. Smart, 62, 107 V. Uphaiii, 415 466, 500 V. Warwick, 49, 287 Johnstone v. Plall, 666 V. Hudlestone, 221, 303 304, 334 339, 353 414, 747 JoUand v. Stainbric Ige, 195 Jolly V. Arbuthnot, 58 429, 538 Jones r. Barkley, 166 V. Bone, 667 V. Bridgman, 302 V. Cannock, 168 V. Carter, 323, 409, 420, 643, 603 V. Chapman, 741, 829 V. Cliappell, 606, 735 V. Davies, 285, 310 V. Edney, 243, 673 V. Gooda}'-, 525 V. Green, 391, 604 V. Heavens, 391 V. Hill, 606, 610 V. Johnson, 500 502, 516 V. Jones, 116, 690 V. Littledale, 63 V. Marsh, 353 V. Mills, 340, 353, 361, 362 V. Nixon, 338, 358 V. Ogle, 406 V. Owen, 812 V. Phipps, 342 I'. Reynolds, 334, 537, 546 V. Robin, 685, 692 V. Shears, 133, 222, 543, 669, 744 V. Thompson, 396 V. Thome, 667 r. Verney, 8, 202 r. AVilliams, 718 Jordan v. Sawkins, 93 V. Twells, 532 V. Ward, 9 V. Wykcs, 43 Joule r. Jackson, 441 Jourdain v. Wilson 163, 254 -Foyce, Re, 641 Joynes v. Statham, 112 Jurden i;. Steerc, 10, 12 [References are to the star paging.] Kearns v. Durell, Kearny i\ Genner, Kearsley v. Oxley, Keates v. Cadogan, Keech v. Hall, V. Sandford, Keen v. Priest, Kavanaoh II. Coal Mining Co. of Ireland, 703 V. (Judge, 313, 742 Kay V. Johnson, 97 Keenl3'side v. Thornton Keightley v. Birch, r. Watson, Kell V. Nokes, Kelly r. Paterson, V. Webber, V. Webster, Kemble c. Farrcn, Kemp V. Bird, V. Cruwes, V. Derrett, PAGB 46 269 289, 291, 544 173, 595 51, 52, 341 369, 370, 371 435, 449, 452, 523 610 496 160 118 351, 634 363 242 390 671 450 151, 224, 333, 351, 352 666 381 107, 120 284 V. Sober, Kendall v. Baker, V. Hill, Kennard, Er parte, Kennedy v. Lee, 89, 92 Kenrick v. Pargiter, 690 Kenscy v. Langhani, 80 Kenworthy v. Schofield, 24."> Kenyon v. Hart, 721 Keppel V. Bailey, 716 Ker r. Roxburgh (Duke of), 386 Kerby i: Harding, 463, 466, 478 Kerne v. Benbow, 645 Kerslake v. White, 136, 141 Ketsey's case, 38, 70 Key i\ Mathias, 187 Kidgill r. Moor, 734 Kidwelly >•. Brand, 322 Kighly V. Buckley, 230 Kimpton r. Eve, 613 Kind r. Aniniery, 453 King ?•. Ball. " 48 1-. England, 417, 480 V. Jones, 163 V. IVlalcott, 293 V. AVilson. 116 King's Leasehold Estates, Ee, 383 Kingdon /•. Nottle, 163 Kingsbury c. 'Collins, 750 Kingsl;ind r. Barnewall, 78 Kingsinill r. Millard, 742 Kinlyside v. TluuMiton, 645 Kiunersley c Orjie, 195, 659 Kinsman c. Jackman, 669 Kintrea c. I'rtston, 95,245 Kirby r. Sadgrove, ()90 Kirkuian v. Jervis, 551 Kirtland r. Pounsett, • 237, 54() Kitching /;. Kitching, 799 Knevett i'. I'oole, 752 TABLE OF CASES CITED. liii [References are to the star paging.] PAGE PA8B Knight, Re, 565 Leatt V. Vine, 723 V. Bennett, 419, 438, 454 , 457, 755 Lee V. Cooke, 487 V. Brougliton, 405 V. Gaskell, 641 I'. Crockforil, 185 V. Lopes, 492, 495 V. Egerton, 4G4 , 485, 526 V. Nixon, 160 V. Mory, 296 V. Kisdon, 626, 630, 641, 643 and Norton's case, 46 V. Smitli, 128, 133 351 378, 453 Knipe v. Palmer, 189 I'. Stevenson, 713 Knotts V. Curtis, 526 Leeds r. Burrows, 762 Knowles r. Blake, 488 V. Cheetham, 409 592 600, (!53 Kooystra v. Lucas, 82, 142 Lees V. Wright, 534, 546 Kusel V. Watson, 90,91 Le Feuvre v. Miller, Leftley r. Mills, 577 394 L. Legal I'. Miller, 113 Legg V. Ben ion, 358, 359 IjADd v. Thomas, 415, 465 V. Pardoe, 723 Laing v. Header, 417 V. Strudwick, 155 V. Smith, 94 Legge V. Horlock, 392 Lainson v. Tremere, 214, 216 V. Legge, 618 Lake v. Dean, 418 Legh V. Hewett, 175, 603 753, 775 V. Plaxton, 696 V. Lillie, 605, 762 V. Smith, 746 Lehain v. Philpott, 485 Lamb v. Brewster, 565 Lehmann v. M'Arthur, 118, 657 V. Mills, 460 Leigh V. Belcarres (Ear I), 208 )■. Wall, 453 V. Burrell, 373 Lambert v. M'Donnell, 306 V. Dickeson, 11, 12 V. Norris, 88, 326 V. Heald, 179 Laming i'. Laming, 681 V. Shepherd, 423, 459 Lancaster v. De Trafford, 89, 99. 108 V. Thornton, 548 V. Eve, 624 Leighton v. Theed, 230 Lane v. Crockett, 444, 494 Le Keux v. Nash, 161, 262 Lanfranchi v. Mackenzie, 705 Lempriere v. Lange, 71 Langford v. Selmes, 214, 258, 413, Lentliall v. Thomas, 61 426, 532 Le Neve r. Le Neve, 195 Langley v. Hammond, 142 Leslie i\ Crommelin, 97 Lascelles r. Lord Onslo V, 59 685, 696 V. Pounds, 736 Latham v. Attwood, 750 Letchford, Be, 39 Laugher v. Humphreys, 376, 424 Levi V. Lewis, 536, 538 Laurance i'. Faux, 544 Levy V. Goodson, 491 Lawder v. Blackford, 109 V. Sale, 160, 529 Lawford v. Partridge, 814 Lewers v. Earl Shaftesbury, 97, 103 Lawrence v. Faux, 304 Lewis V. Bond, 117 V. Obee, 706 V. Campbell, 163, 683 Lawrie v. Lees, 46, 246, 325 V. Fothergill, 612 Lawton u. Lawton, 626, 636 V. Harris, 438, 457 V. Salmon, 622 627, 636 V. Hilliard, 144 V. Sutton, 170 V. Price, 706 Lay V. Mottram, 177 V. Read, 523 Laycock v. Pickles, 242 V. Ridge, 263 Laylii'ld v. Cowper, 616 V. Rochester (Mayor), 16 Laytlioarp r. Bryant, 92, 244 V. Willis, 547 Laytou r. Field, 230 Lewson v. Pigott, 387 Leacli c. Tiiomas, 175, 597, 611, 622, Leyton v. Hurry, 474 629 Lichfield ;;. Ready, 52, 197 Leader v. Homewood, 643, 649 Liford's case. 179 V. Moxom, 734 Liggens v. Inge, 714 Leaf V. Tuton, 241 Lightfoot V. Heron, 107 Lear v. CaLdecott, 486 V. Keane, 248 V. Edmonds, 634 Lilley v. Harvey, 814 liv TABLE OF CASES CITED. [References are to the star paging.] Lilley v. Leigh, i'. Whitney, Linder v. Pryor, Lindsay v. Lynch, Line v. Stephenson, Lineham f. Cotter, Lingliani, In re, V. Warren, Linwood v. Squire, I^isburne r. Davies, Lister v. Brown, V. Hodgson, Litchfield r. Ready, Littler v. Holland, Llewellyn r. Rous, V. AVilliams, Lloyd, Ex parte, V. Crisp, PAGE 117 187 670 101 677 112 148 487 101 742 471 217 53, 738 171 405 150 626 247, 657, 661 V. Davies, 58, 267, 271, 272, 424, 538, 805 V. Dimmack, 261 V. Jones, 605, 814 V. Langford, 298, 301 V. Rosbee, 745, 748 V. Tomkies, 679, 683 Llynvi Coal and Iron Co., Ex parte, Re Hill, 284 Load V. Green, 198, 529 Loader v. Kemp, 596 Lobban v. Cook, 562, 573 Lock V. Furze, 149, 182, 195, 197, 680 Locke v. Matthews, 229, 231 Lockwood V. Wilson, 555 V. Wood, 77 Lofft V. Dennis, 400, 592, 595, 598 Logan V. Hall, 265, 601, 656 London (City) v. Greyme, 608 (City) V. Nash, 603 (Mayor, &c.) r. Hedger 612 (Mayor, &c.) r. Pewterers' Co. 704 (Mayor) v. Soutligate, 113 V. Soutliwell, 179 London and Birmingham Rail. Co. V. Winter, 112 London and Colonial Co. (Hor- sey's claim), 434 London Gas Light Co. v. Chelsea Vestry, 167 London and North Western Rail. Co. f. Buckmaster, 125 r. Garnett, 668 V. West, 213 London and Suburban Co. v. Field, 668 London & South Western Rail. Co. i;. Flower, 595 London ami Westminster Loan and Diacount Co. v. Drake, 306, 62(5, 043 PAGK London and Yorkshire Bank v. Belton, 452 London Dock Co. v. Sinnott, 103, 104 London Investment Co. v. Monte- fiore, 653 Long V. Bowring, 109, 117 V. Fletcher, 112 Longbottom v. Berry, 641 Longford r. Selmes, 808 Longstaff v. Meagoe, 640, 646 Lonsdale (Karl) v. Rigg, 724 Loring v. Warburton, 465 Lotham v. Spedding, 814 Lovcday v. Winter, 208 Lovell V. Smith, 711 Lovelock i\ Dancaster, 801 Lovering, Ex parte, lie Jones, 280 Lovett V. Wilson, 686 Lowe V. Carpenter, 686, 707 I'. Griffiths, 70 V. London & North Western Rail. Co. 545 V. Peers, 390 V. Ross, 197, 537, 738 V. Swift, 117 Lowndes v. Fountain, 763 Lucas V. Commerford, 264, 603 V. James, 92, 104, 107 V. Jones, 399 V. Tarleton, 437, 478, 523, 526 Lucy I'. Levington, 530 V. Leviston, 674, 683 Ludford v. Barber, 9 Ludlow (Mayor, &c.) v. Charlton, 396 Ludwell r. Newman, 675, 678, 683 Luker r. Dennis, 672 Lumley v. Hodgson, 267 Lundy (tranite Co., In re, Ex parte Heaven, 433 Lurting v. Conn. 607 Luton Local Board r. Davis, 581 Lutterell r. Weston, 60 Luxmore v. Robson, 588, 600 Lybbe !'. Hart, 165,277 Lyburn v. Warrington, 159, 184 Lyde V. Russell, 029, 64:5, 646 Lvndon v. Stanbridgc, 135 Lyon V. Reed, 213, 299, 302, 305 V. Toujkies, 484, 485 V. Weldon, 480 Lyons i;. Elliott, 440 M. MArnini)!-. r. Weekcs, 116 Machfll V. Dmiton, , 264 Maclier v. Foundling Hospital, 669 TABLE OF CASES CITED. [References are lo tlie alar paging.] PAGE Mackay v. Mackreth, i;^ 220, 224, 265, 289, ;];58, 3(3;$ Mackintosh v. Midland Counties Kail. Co. 167 V. Trotter, 620, 643, 64(5 Mackley y. Pattenden, 118 Maclean v- Dunn, 92 M'Ardle v. Irish Iodine Co., 63, 190 M'Garth i'. Sliannon, 297 M'Kenzie v. Ilesketh, 90 M'Leisli ('. Tate, 379, 419, 453 M'Louudlnm, 761 Moxev V. Bigwood, 106 Movie r. Movie. 607 Mucclestone r. Thomas, 168 Muiraney v. Dillon, 369 Mumford r. Oxford, Worcester and Wolverliampton Kail. Co., 733 Muncev v. Dennis, 138, 761 Muncv""*-. Joliffe, 100 Mungean v. Wliratley, 610, 518 M unlock r. Taylor, 54 IVlurgatroyil r. Kobinson, 708 Murlcv r."M'Dermott 614 Murphy v. Da',.,, 608 Murray v. Barbc, 118 V. King, 398 ('. Parker, 217 Murray r. Stair (Earl), 190 Murreil v. Tysh, 260 TABLE OF CASES CITED. ivu [References are to the star paging.] Musgrave v. Cave, V. EnuTson, Miiskett V. Hill, Muspratt v. Gregory,. N. 79, 698 377, 413 345 441 Nagle v. Baylor, 46 Nargett v. Nias, 451 Nash V. Gray, 395 V. Lucas, 462, 525 V. Palmer, 679, 683 V. Turner, 215 Nation v. Tozer, 289, 545 National Savings Ban k Associa- tion, Re, Ex parte Brady, 101 Naylor v. CoUinge, 591, 637 Neale v. Mackenzie, 118, 197, 401, 410 418, 525 I'. Ratcliffe, 167, 594 t\ Swind, 545 V. Wyllie, 265, 599 Neate v. Harding, 212 Neave v. Moss, 9,214 Nelson v. Liverpool Brewery Co., 735 Neplan v. Doe, • 148 Nesbit V. Meyer, 98, 116 Ncsbitt V. Tredennick, 370 Neshatn v. Selby, 90, 93 Ness r. Stevenson, 446 Neve i\ Pennell, 192, 193 Newbury, In re, 691, 742 Newby v. Jackson, 805 V. Sharpe, 682 Newcombe v. Harvey, 252 Newling v. Pearce, 429 Newman, In re, 196 V. Anderton, 84, 225, 402, 413 Newport V. Hardy, 540, 544, 547 New River Co. ?'. Johnson, 714 Newson v. Smythies, 107, 169, 604, 740 Newton v. Allin, 401, 409 V. Beck, 248 i;. Harland, 741 V. Nock, 669 V. Scott, 443 V. Wilmot, 176, 179, 720 Niblet [•. Smith, 439, 500 Nicholas r. Simonds, 751 Nickells v. Atherstone, 299, 301, 302, 304, 305 NicoU V. Jenning, 666 Nixon, Ex parte, 605 V. Albion Marine Insurance Co., 186 V. Freeman, 452, 461, 523 V. Quinn, 645 93 163 114 Noble i\ Cass, iJ. Smith, V. Ward, Noke V. Awder, Noke's case, Norbury (l.,ord) v. Kitchin, Norris *'. Carrington, V. Jackson, Northam v. Hurley, Northcote v. Underhill, North London Land Co. i-. Jaques, Northumberland (Earl) v. Er- rington, 160 North-Western Railway Co. v. M'Michael, Northwick v. Stanway, 69, North Yorkshire Iron Co., In re, Norton r. Harvey, V. Herron, Norval v. Pascoe, Nott V. Bound, Nunn V. Fabian, V. Truscott, Nurse v. Seymour (Lord), Nuttall r. Bracewell, V. Staunton, 100, 112, 710, 420, 454, PAGE 289 681 ,243 , 532 172 708 513 . 115 71U 162 330 530 70 696 433 49 63 253 482 101 117 119 716 457 O. Oakapple v. Copous, Oakley y. Monck, 9,221,222, Oak Pits Colliery Co., In re, Oastler v. Henderson, Oates V. Frith, Oceanic, &c., Co. v. Sutherbury, O'Connor v. Spaight, Odell V. Wake, Ogden V. Fossick, (^gilvie V. Foljambe, Ognell's case, O'Hare v. Fahy, O'Herlihy v. Hedges, Oland V. Burdwick, Oland's case, Oldershaw v. Holt, Oldfield's case, Olroj'd V. Crampton, Onions v. Cohen, Onley n. Gardner, Onslow V. , V. Corrie, Openshaw v. Evans, Opperman v. Smith, Orby v. IMohun, Orgill V. Kemshead, Ormes v. Beadel, Ormond (Lady) v. Hutchinson, Ormrod i'. Huth, 161, 248, 106, no. 688, 612, 161, 262, 200, 379, 101, 349 223 434 303 385 48 93 258 114 89 428 094 118 230 761 405 702 81 678 700 761 276 590 469 386 401 113 78 647 Iviii TABLE OP CASES CITED. [References are to the star paging.] Osbond V. Meadows, Osborn V. Garden, Osborne v. Wickenden, 82, 437, c. Wise, Outrani v. Maude, Owen V. l)e Beauvoir, r. Leigh, V. Owen, i\ Tearce, V. Thomas, V. Williams, Owens V. Wynne, Oxenham v. Collins, Oxford V. Provand, (Bishop of) V. Wise, Oxiey V. James, 13, 253, PAGE 721 40 428 136, 703 608 4o5 464, 479 805 814 89 371 486 412 91, 102 558 254, 259 Packer v. Gibbins, 408, 551 Paddington Gharities, In re, 540 Paddock v. Fradley, 136 Padwick v. King, 717, 721 Page, In re, 280 V. Broom, 117 V. More, 156, 335, 340, 348, 747 Paget V. Foley, 345, 533 V. Marquis of Anglesea, 405 V. Marshall, 217 Paget's (Lord) case, 152 Pain V. Coombs, 100, 101, 117 Paine v. Kyder, 698 Painter v. Hill, 187 V. Newby, 111 Palgrave v. Windham, 492 Palk V. Force, 650 V. Shinner, 687, 734 Palmer v. Earith, 556, 571 V. Edwards, 258 V. Elkins, 548 V. Gosen, 655 Palmer's case, 153, 616 Pannell v. Fenn, 49 V. Mill, 177, 179, 719 Panton v. Jones, 549 Pajii'iidick V. Bridgwater, 686 Papillon V. Brunton, 345, 348, 353, 354, 550 Paradine r. Jane, 410 Paramour r. Yardlcy, 49 Parptcr v. Harris, 214, 215, 253 Parish r. Sh'cman, 119, 555, 568 Parke, /•.'< i>(tit<\ Potter, In re, 435 V. M'Loiighlin, 215 Parker, In ri','V\xT^}iiiv\A,Ex parte, 281 V. Ciibbins, 592 V. Harris, 159, 230, 379 Parker v. Manning, V. Mitchell, V. Plumber, V. Shepherd, V. Taswell, V. Webb, V. Whyte, r. Winlow, Parkes r. Constable, PAGE 532, 548 ()86 140 156 91, 98, 114, 128, 132 163 265, 677 63, 64 219, 335, 347, 363 Parkinson's case, 15, 30 Parmenter v. Webber, 258, 421, 426, 429 Parrott v. Anderson, 398 Parry v. Deere, 185 V. Duncan, 469, 518 V. Hindle, 43, 428 Parsons v. Gingell, 440 V. Hind, 622 Partington v. Woodcock, 52, 267, 425 Partridge v. Bere, 733 V. Foster, 270 V. Navlor, 476 Pascoe V. Pascoe, 258, 264, 421, 426 Pasley v. Freeman, _ 64 Paterson, Ex parte, Throckmor- ton, In re, 280 Patman v. Harland, 665 Patrick r. Stubbs, 685, 690, 696 Patten v. Keid, 290, 545 Pattison v. Gittard, 719 Paul I'. Meek, 129 V. Nurse, 164 V. Summerhayes, 724 PauU i: Simpson, 289 Paxton V. Newton, 111, 603 Payler r. Homersham, 134 Payne i\ Burridge, 555, 556, 558, 562, 570 r. Haine, 589 i\ Kogers, 736, 739 V. Shedden, 711 Paynter ?'. The Queen, 672 Peacock v. Peacock, 227, 444 r. Penson, 98,111 V. I'urvis, 443 Pearce r. Brooks, 533 V. Cheslyn, 187 Pearse r. Houlter, 344, 345 r. Morrice, 81 Pearson v. Glazebrook, 714, 813 r. Spencer, 142, 703 Pease r. Chaytor, 607, 614, 625 r. Coats, 067 Peers r. Sn<'vd, 62 Pegier r. w'hite, lOfi, 108 Pelhitt V. Boosey, 322, 325 IVlls V, Iloarc, 625 TABLE OF CASES CITED. lix [Keferencee are to the Bfar paging.] Pemberton v. Chapman, 288 Pembroke (Earl of) v. Sir H. Berkeley, 29B Penfold V. Abbott, . 17;] Penley v. Watts, 205, GOl Pennant's case, •524, 4-j-j Penniall v. Harborne, 240, 324, (i52, 655 Pennington v. Cardale, 20, 197,341,345 V. Morse, 231 V. Taniere, 9 Penry v. Brown, 591, 622, 637 Ponton V. liobart, 617, 621, 62(), 629 Penwarden v. Ching, 680, 705 Pcrcliard i'. Heywood, 576 Perliam, Re, 839 Perkins, /;« re, 433 V. Bradley, 47 Perreau v. Beavan, 500 Perring v. Brook, 134 Perry v. Davis, 312 V. Edwards, 679 V. Fitzhowe, 690, 697 V. Shipway, 228 Pester v. Cater, 61 Peter v. Kendall, 83, 304 Petrie v. Daniel, 701 V. Dawson, 628, 641 Phelps v. Prothero, 98, 246 Phen6 v. Popplewell, 302 Pheyscy v. Vicary, 142, 703, 714, 717 Phillips V. Beer, 502 V. Berryman, 525 V. Bridge, 319 V. Edwards, 102, 110 V. Everard, 117 V. Henson, 440 V. Hudson, 691 V. Phillips, 370 V. Pearce, 32, 538, 548 V. KoUings, 4 V. Shervill, 443 V. Smith, 606, 017, 620 V. Whitsed, 478 Philpott V. Hoare, 262 V. Lehain, 485 Phipps r. Seulthorpe, 305, 544, 548 Picard V. Hine, 118 Pickering v. Noyes, 719 Piggott V. Birtles, 436, 464, 486, 52(5 17. Stratton, 306 Pigot i\ Garnish, 40, 41 Pigot's case, 198 Pike V. Eyre, 13, 224 Pilcher v. Hinds, 799 Pilkington r. Hastings, 410 Pillins V. Armitage, 91 Pilton, Ex parte, 830 Pirn V. Currell, 140 PAOB Pinconib v. Thomas, 179 Pindar r. Ainsley, 598 V. Wadsworth, 689 Piuero v. Judson, 133, 134, 419, 541, 542 Plnhorn r. Souster, 228, 229, 232, 259 Pinner i\ Arnold, 641 Pinnington v. Galland, 142 Pistor V. Cater, 128, 1()9 Pitcairn v. Ogbourne, 41 Pitcher v. Tovey, 262, 289, 290 Pitman v. Woodbury, 99, 161, 189, 537 Pitt V. Laming, 660 V. Shew, 434, 438, 479 V. Smith, • 46 V. Snowdon, 429 Pittiward, lie, 570 Place v. Fagg, 438, 642 r. Jackson, 685, 697 Plant V. James, 142 Plasterers' Co. v. Parish Clerks' Co., Piatt (Lady) i'. Slcap, Playfair v. Musgrove, Pleasant v. Benson, Plumer v. Brisco, Plumnier, Ex parte, V. Whiteley, Pocock r. Eustace, V. Gelliam, Podger's case, Polden r. Bastard, Pole V. Davis, Pollard V. Grenvil, Pollen r. Brewer, PoUitt V. Forrest, Pollock 704 309 58, 270 306, 344, 353 503 282 405 562 665 61 142, 703, 713 55 204, 205 229, 741 379,391,413,418, 484, 488 Stacev, 258, 264, 539, 542 Pollyblank ;•. Hawkins, 532 Pomery v. Partington, 80, 208 Pomfret v. Kicroft, 598, 682, 702 Ponsford v. Walton, 190 Ponsonby v. Adams, 6ti3 Poole V. Adams, 653 V. Archer, 592 I'. Bentley, 132, 134 V. Hill, 160 t'. Longueville, 450 (Mayor, &c., of) v. Whitt, 270. 271, 409 V. Tunbridge, V. Warren, Poole's case, Pooiey r. Driver, Pope V. Biggs, Pordage v. Cole, Porris v. Allen, Porter v. Slu'iihard, V. Sweetnani, 532 348, 353, 746 438, 627, 643 727 51, 54, 424 167 300 170, 358 160 Ix TABLE OF CASES CITED. [References are to the star paging.] 511, PAGE I Portmau v. Home Hospitals As- Pyle v. Partridge, sociation, 667 Pym v. Campbell, r. Mill, Postlewaite v. Lewthwaite, Postman r. Harrell, Potten f. Bradley, Potter V. Diiffield, V. North, Poulteney v. Holmes, Pow V. Davis, Powell V. Chester, V. Hibbert, ('. Llovd, r. Lovegrove, Powis r. Lord Dynevor, V. Smith, Powley V. Walker, 175, 603, 604, 775 Pownall V. Moores, 605 Powseley v. Blackman, 53 Powjs V. Blagrave, 613 Poynter v. Buckley, 481 Povntz V. Fortune, 117 Pratt 1-. Brett, 613 V. Keitli, 414 Preece v. Corrie, 258, 264, 421, 426 Prentice v. Elliott, 544 Prescott V. Phillips, 710 Press IK Tarker, 141 Preston v. Love, 9 V. Peeke, Pretty v. Bickmore, Price V. Assheton, 667 139 364 469 511 89 685 264 63 174 640, 548 118 91, 93, 100 116 423 V. Birch, V. Dyer, i;. Griffiths, V. Ley, V. Salusbury, V. Varney, V. Williams, r. Worwood, Prichard v. Powell, Pritchard v. Stevens, Proctor V. Harris, In re, Progress Assurance Co., Re 549 736, 739 102, 118 61 93, 113, 155 89,91 211 93, 100 58, 272 24, 676 320, 323 692 501 739 34 433 I'ropert r. Parker, Prosser v. Piiillips, V. Wagner, Proud r. Bates, 92, 120, 121, 664 187 221 177 Proudlove v. Twemlow, 437, 464, 479 Pugh V. Arton, 276, 643 V. Grimth, 463 *;. Leeds TDuke of), 150, 204 V. Stringfi.-ld, 160, 5:!0 I'ulbrook r. I>a\ves, 95, 242 Pidlcii v. I'alincr, 422 J'uiiiictt. h'.i jKiile, Kitchin, Tn re, 234 Pye ('. Murnford, ()H4, 717 Pyer v. Carter, 142, 713 PAGB 459 103, 190 Q- QuARRiNGTON V. Arthur, 670 Queen's Benefit Building Society, Ex parte, Threlfall, In re, 233 Queen's College v. Hallett, 608 Quilter v. Mapleson, 330 Quincey, Ex parte, 630, 643 R. Rabbett v. Raikes, 617 Race V. Ward, 685 Raine v. Alderson, 732 Rakestraw v. Brewer, 370 Ranibert v. Cohen, 399 Ramsbottom v. Buckhurst, 58, 272 V. Mortley, 186 V. Tunbridge, 186 Ramsden v. Dyson, 377 Rand v. Vaughan, 468 Randall v. Stevens, 732 Randle v. Long, 148 V. Lory, 319 Rands v. Clark, 746 Ranelagh (Lord) v. Melton, 373 Rangeley v. Midland Rail. Co., G92 Rankin v. Lay, 117 Rawlings v. Morgan, 255, 591 Rawlins v. Briggs, 580 Rawson v. Eicke, 132, 343, 538 Rawston v. Bentley, 368 Rawstron i-. Taylor, 707, 709, 713, 715 Raymond v. Fitch, 289 Read r. Brookman, 129 and Nash's case, 389 Read's case, 442 Reade v. Johnson, 535 V. Lamb, 94 Red.lell r. Stowey, 488 Rede V. Farr, 198, 313, 317 Rrdpath r. Roberts, 407, 551 Reed r. Deere, 184, 185 V. Harvey, 278. 280 J-. Thoyts, 491,494 Reedie v. London and Nortli- Western Rail. Co., 737 Rees V. Da vies, 831 V. F.rvington, 311 ■ r. Kin-, 317, 320, 360 V. IVrrott, 344, 806 Reeve v. Bird, 303 Reeves v. Cattell, 666, 672 TABLE OF CASES CITED. Ixi [References are to the star paging.] PAGE Reeves v. Gell, 'J9 V. Greenwich Tanning Co., 108, 119 V. Watts, 521) KccrGnt United Service Stores As- sociation, In re, 434 Tli'gina (see Kex). Kegnart v. Porter, 417, 419 Heid V. Parsons, 198 V. Tenderden (Lord), 291 TJeignolds v. Edwards, 699, 701 Reindel v. Scliell, ;390 Remnant r. Bremridge, 544 Hen V. Bulkeloy, 202 Kennie v. Robinson, 214, 548 Renshaw v. Bean, 705 Reuss V. Picksley, 103, 104 Revell V. Hussey, 109 Revett V. Brown, 228 Rex {or Regina) v. Aberyst- with, 573 V. Adamson, 527 17. Aldoboroiigh, 159 t;. Alresiord, 79, 140 V. Aylesbury-with- Walton, 556, 576 V. Aylesford, 576 V. Baker, 843 1-. Bangor (Bp.), 843 V. Bardwell, 236 V. Barrett, 736 V. Battle Union (Guardians), 720 V. Bell, 571 V. Bissex, 472 V. Bolton, 833 V. Bowser, 844 V. Broke, 700 V. Burchet, 501 V. Cambridge (Vice.-C), 15, 30 V. Chawton, 154, 155, 220, 337 ('. Cheshire (JJ.), 472 V. Ciiesluint, 230 V. Chipping Norton, 15 V. Chorley, 706 I'. Clarke, 475 V. CoUett, 227 V. Cory, 439 V. Cottle, 707 V. Cotton, 415, 442, 444, 840 I'. Covent Garden (Trustees of), 189 f. Cridland, 721 V. Davis, 472 V. Decaux, 444 V. Dunn, 581 V. Fillongley, 227 V. Flanagan, 458 r. Gardiner, 572 I'. Great Glen, 289 PAGE Rex V. Great Wakering, 160 V. Great Western Rail. Co., 570 i;. (jiirdon, 502 V. Hale, 60 V. Hammersmith, 577 V. Hariand, 844 V. Head, 570 V. Hedges, 629 V. Herstmonceaux, 220, 225, 333 V. Hill, 444 V. Hornchurch, 59 'v. Ingham, 840 V. Johling, 227 V. Jones, 845 I'. Kirby, 572 V. Licensed Victuallers' So- ciety, 570 V. Londonthorpe, 630 V. Longlar Gas Co., 583 V. Longnor, 189 V. Lubbenham, 213 V. Lynn, 572 V. Metropolitan Board of Works, 714 V. Middlesex (JJ.), 833 V. Middlesex (Registrar), 191, 192, 194 r. Mitcham, 5()8 V. Monkhouse, 501 V. Morgan, 472 V. Morrish, 124, 131 V. Mortlock, 353 V. Nevill, 135 V. Nicholson, 83 V. North DufReld, 15 V. Oakley, 40, 845 I'. Oliver, 501 r. Otlev, 621 V. Pedfey, 736 V. Pratt. 723 V. Preston, 188 V. Rabbits, 472 V. Radnor (JJ.), 471, 472 V. Raines, 507 t'. Ramsden, Bart., 581 V. Richinond (Recorder), 354 V. St. Dnnstan's, 630 V. St. Martin's, 572 V. St. Mary-the-Less, 572 V. Salisbury (Marquis), 572 V. Scott, ' 559 V. Sewell, 836, 840 V. Sheil, 565 V. Sherrington, . 40 V. Shickle, 439 V. Sliipdam, 236 I'. Shropshire (JJ.), 473 V. Skingle, 571 V. Smyth, 846 Ixii TABLE OF CASES CITED. [References are to the star paging.] Rex V. Snape, I'. Sotherby, V. Spurrt'U, i>. Stannard, V. Sterry, I'. Stock, V. Stowe, V. Sudbury, V. Sutton, V. Thorp, V. Tliurlstone, V. Topping, 315 V. Traill, V. Tyncmouth, V. Wait, V. Watts, V. Welby, V. Wells, V. Westbrook, V. Weston, V. Williams, V. Wilson, V. Wood, V. Yorkshire (JJ.), Reynal, Ex parte, Reynard v. Arnold, Reynolds v. Bariord, V. Bridfie, V. Waring, V. Wright, Rhj'mney Rail. Co. v. Price, Rich V. Basterfield, V. Jackson, V. Woolley, Richards v. Bluck, V. Cccley, V. Frye, r. Richards, V. Soly, Richardson v. Capes, V. Evans, V. fiilTord, 128, 133, 221 V. Hall, r. Jackson, V. Langridge, 154, V. Walker, Riekett, lie, Ricketts v. Bell, V. Salway, V. Weaver, Ri(!knian v. Johns, Riddell c. Stowc}', Ridgway v. StatYord (Lord), I'. Wharton, (52, !»2, Riglit r. Beard, V. Cuthell, V. Darby, 231, 11. Proctor, 15(5, 3:)5, 347, PAGE 236 444 236 736 572 236 363 572 40 40 718 639, 661 839 572 63, 92 738 59 572 375 387 720 258, 844 723 353 642 373, 374 493 392 102 288 501 736 112 469 171 61 687 287 132, 154 716 (>:>6 351 5:57 417 225, 227 716 209 91, 117 691, 711 289 433 417 444,481 104, 105 237, 339 346, 359 ;J3(). 338, 353, 729 131 PAGB Right V. Thomas, 132, 199, 207, 389 Riseley v. Ryle, 491, 492, 495 Rivis V. Watson, 146, 266, 267, 423 Roach V. Garvan, 40 Roberts r. Barker, 753, 762 V. Berry, 99 V. Brett, 166, 181, 588 V. Collins, 112 V. Davey, 197, 198, 316, 3'.9 V. Hayward, 62, 339, 346, 744 V. Rose, 126, 714 r. Showier, 248 V. Tregaskis, 91, 241 Robertson v, Norris, 285 Robins v. Cox, 252 Robinson v. Anderton, 647 V. Harman, 95 r. Hoffman, 422, 459 V. Learoyd, 745, 748 V. Lenaghan, 812, 815 V. Milne, 180 i\ Page, 94,113 V. Tongue, 80 r. Waddineton, 478, 523 Robson r. Flight, 34, 203, 210, 678 Rochdale Canal Co. r. Radcliffe, 656 Rochester (Dean and Chap.) v. Pierce, 540 Rockingham (Lord) v. Penrice, 394 Roden v. Eyton, Rodgers v. Parker, Rodmell v. Eden, Roe V. Davis, V. Doe, V. Galliers, V. Harrison, V. Ilayley, V. Hodgson, V. Lees, V. Moore, I'. Paine, r. Pierce, V. Prideaux, V. liamsbottom, ?;. Sales, V. Street, V. Summerset, j7. Walker, V. Ward, 9 ?;. Whiggs, V. Wilkinson, 464, 480 437, 447, 464, 479, 526 63 129, 321 347 166, 274, 661 324, 656, 662 156, 163, 318, 359 40 154, 338 791 169, 325, 593, 602 341, 345 9, 201, 230 10 660 229, 344, 353, 354 49, 288 141 223, 230, 351, 744 344, 798 347 V. York (Archbishop), 199, 297, 300. 301,387 Roffey r. Henderson, Rogers, AV, Trusts, 1'. Birkmire, f. Grazebrook, 126,626. 645, 714 405 457 235 TABLE OF CASES CITED. [References arc to the star paging.] PAGE Rogers i'. Humphreys, ?, i, 35 , 50, 51, 52, 5?, , 55, 2()7, 425 V. Kinfiston-upon-Il ill Doi-k Co., 3;j;j, :]:J4 348, 353 V. ritclier, 268 272 396 V. St. German's Union, 720 V. Taylor, C85 G8G 704 V. Tuilor, 117 V. Wynne, (596 Tlolfe V. I'oterson, 391 004 RoUason v. Leon, 95 98, 128, 133, 134 419 RoUeston v. Morton, 271 IK New, 613 Rolls V. Miller, 667 Rnlpli V. ('rouch. 680 683 Rooke i'. Kensington, 217 Rose V. Foulton, 189 Rosemgrave v. Burke, 406 Rosevvell v. Prior, 736 Roskruge v. Caddy, 512 Ross V. Clifton, 526 Rossiter v. Miller, 89, 105 liouse V. Bardin, 700 Routledge v. Grant, 103 Rowbothain v. Wilson, 176 Howe V. Brenton, 195 V. Huntington, 153 V. Young, 397 Rowley v. Adams, 290 Rowls r. Gells, 571 Rubery v. Jervoise, 367 V. Stevens, 289 291, 292 Rumball v. Munt, 32 V. Murray, 270 V. Wright, 237, 546 Runimens v. Robbins, 103 Russell, Ex parte, 441 V. Baber, 665 V. Rider, 463 V. Shenton, 614, 738 V. Stokes, 165, 253 Rutland v. Wythe, 207, 388 Ryal I'. Rieh, 748 Ryan v. Clark, 197 V. Shilcock, 461 V. Thompson, 560 Ryley v. Hicks, 127 Ryot j;. St. John (Lady) , 590 Sabbarton v. Sabbarton, Sabourin c. Marshall, Sacheverell r. Froggatt, Saebeverill v. Forter, Sadgrove r. Kirby, Safl'ery v. Elgood, 385. 202 501 386 692 690 12 PACE Saint V. Pilley, 306, 644 Sainter ?>. Ferguson, 99, 392 St. Alban's (Duke) v. Ellis, 159, 175 (Bishop) V. Battersby 668 St. Cross (blaster) v. Howard de Walden, 381 St. Germains (Earl of) ?\ Willan, 755 St. John's College, Oxford r. Murcott, 443, 491 St. John's Hospital, Cirencester, In re, 148 St. Nicliolas (Churchwardens of) V. Sketchley, 32 St. Saviour's (Southwark) v. Smith, Sale I'. Lambert, Salisbury v. Ilurd, V. Marshall, Salisbury's case (Bishop), Sallory v. Leaver, Salmon v. Matthews, V. Swan, Salter v. Grosvenor, r. Kidgley, Saltoun I'. Houston, Sampson v. Easterby, 262 89 61 173 21 429 53, 402 308 73 529 177 159, 163, 165, 177 686, 708, V. Hoddinott, 686, 708, 71: Sanmda (•. Lawford, 114 Sanders v. Davis, 643 In re, 458 V. Karnell, 221 V. Pope, 327 Sandhill o. Franklin, 150 Sandiman v. Breach, 135 Sands v. Hempson, 424 Saner v. Bilton, 410 Sanford, /n re, 294 Sapsford c. Fletclier, 399 Saunders, In re, 47 V. Merryweather, 253 V. Musgrave, 237, 492 V. Newman, 709, 712 Saunderson v. Hanson, 560 Savage v. Dent, 800 V. Stapleton, 350 Savil V. Bruce, 34 Saward v. Leggatt, 589 Saxby V. Manchester, Sheffield and Lincolnshire Rail. Co., 736 Saxon v. Blake, 63, 92 Say V. Barwick, 46 V. Smith, 153, 154, 158 Sayers v. Collier, 97 Scales r. Lawrence, 590 Scaltock (.-. Ilarston, 254 Scheider r. Norris, 92 Sclioles r. IIari;-raves, 691 Schroder v. Ward, 689 Ixiv TABLE OF CASES CITED. [References are to the star paging.] PAGE PAGB Scot r. Scot, 322 Sheard v. Venables, 265 Scott V. Buckley, 461 Sheecomb v. Hawkins, 203 r. Matthew Brown & Co. 330 741 Sheehy v. Muskerry, 201 V. Scholey, 270 Sheen c. Rickie, 620 V. Steward, 207 Shelburn r. Inchiquin, 108 V. Sykes, 702 Shelburne v. Biddulph, 364 Scottish North-Eastern Eail. Co. Shepheard ;•. Hong Kong, &c. V. Stewart, 114 Corporation, 658 Scudamore v. Stratton, 3f')6 Shepherd r. Hodsman, 81 Seago r. Deane, 595 V. Keatly, 246 Seagood v. Meale, 88 V. Walker, 116,671 Seaman's case. 137 Sheppard v. Doolan, 109 Sear v. House Propertj ' and In- Sherrington t.-. Andrews 559 vestment Society, 668 Sherwin v. Shakespeare 238 Searson v. Robinson, 765 Shillibeer r. Jarvis, 102, 104 Seaton v. Booth, 237 Shine r. Dillon, 542 V. Staniland, 217 Shipwith V. Green, 140 Sedden v. Senate, 682 Shirley v. Newman, 356 Seddon r. Tutop, 549 Shirreff i\ Hastings, 289 Sefton (Ear!) v. Court, 603 Shopland r. Ryoler, 3 9,41,67, Selby V. Browne, 198, 313, 520, 538, 232, 426 544 547 Shore v. Wilson, 136 V. Greaves, 84 376 413 Shrewsbury's case. 229 597, 609, V. Selby, 92 611,618 Sellers v. Bickford, 171 Shrewsbury (Earl of) i- Goold, 175 Sellick r. Trevor, 246 Shubrick f. Salniond, 160 Sellin V. Price, 183 Shuttleworth, Ex, Deane, Re, 283 Sells V. Glamis (Lady), 418 i\ Le Fleming, 689 V. Hoare, 464 465 Silkstone r. Dodworth Coal and V. Sells, 217 Iron Co., 433 Selway v. Fogg, 111 Simmons r. Heseltine, 109 Semayne's case, 461 r. Norton, 608, 619 Senhouse v. Christian, 701 Simons r. Farrcn, 532, 667 Senior v. Armytage, 138, 175, 603, r. Johnson, 134 753 764 767 V. Patcliett, 63 Servante v. James, 160 Simper r. Foley, 704, 736 Seton V. Sladc, 99 Simpkin r. Ashurst, 227, 231 Seven v. Mihil, 398 443 Simpson r. Clayton, 163 255, 366 Scwcll r. Angerstein, 622 625 V. Gutteridge, 49 V. Jones, 813 V. Hartopp, 434, 435 437, 451 V. Taylor, 663 672 r. Lamb, ()6 Shadbolt r. Woodfall, 287 r. Lewthwaitc, 700 Sliadwcll v. Hutchinson 732 734 r. Margitson, 155, 224 Shakespeare ;•. repi)iii, 696 r. Savage, 733 Shannon r. Bradslied, 117 V. Scottish Union Insurance Sliarp r. Fowle, 447 Co., 653 /•. Key, 272 396 V. Tittorell, 290, 313 r. Miiligan, 116, 110, 120, Sims V. Marrvatt, 647 358 408 Singleton r. Williamson , 450 r. Scarrott, 285 640 Siordet v. Kuczynski, 187 1-. Waterhousc, 177 Si.\ Carpenters' case, 415 406, 524 ?•. Wright, 116 Skeatc v. Beale, 4(i Sharpies »•. Kickard, 187 Skelton r. Cole, 88, 93 Shaw r. Bran. 47 Skerry v. Preston, 414, 533 I', (.'oftin, 182 Skidmore r. Bootli, 463 V. Jersey (Earl of), 420 Skinner 1'. MDowall, 105 V. Kay," 144, 161 IGl inn 5SH Skii)worth r. (Jreen, 213.216 f. Stenton, 680 (W.\ Skull V. Glenister, 79, 82 699, 701 Sheape r. Culpepper, 512 Slack V. Crewe, 66 TABLE OF CASES CITED. Ixv [ReferenoGB are to the star paging.] Slack V. Sharp, 306, 406, Slater v. Daiigerfield, i;. Stone, 167, Slator V. Brady, V. Trimble, Sleap V. Newman, Sleddon v. Cruikshank, Slingsby's case. Slipper V. Tottenham and Hamp- stead Junction Kail. Co., 172, Sloper V. Saunders, Smalley v. Hardinge, 278, Smallman ;;. Agborow, V. Pollard, Smart v. Harding, V. Jones, Smartle c. Williams, Smith and Scott, Re, and Bustard's case, V. Adkins, V. Arnold, V. Ashforth, 464, 477, V. Barrett, i;. Capron, V. Carter, V. Chance, V. Chichester, i;. Clark, V. Clegg, 195, V. Compton, V. Darby, V. Day, 149, 152, 205, 216 V. Durrant, r. Egginton, V. Eldridge, V. Farr, V. Goodwin, 635, 545, 416, V. Harwich (Mayor, &c. of), V. Howden, V. Humble, 558, 560, 570, V. Jersey (Earl of), 137, V. Jones, V. Kenrick, V. Malings, V. Mapleback, 264, 297, 298, 386 421, 426, V. Marrable, 174, V. Milles, V. Neale, V. Pearce, V. Peat, 688, V. Pocklington, V. Raleigh, V. Render, V. Russell, 443, 491, V. Scott, V. Smith, 293, 551 248 594 38 38 291 641 160 660 540 281 43 492 242 126 263 378 321 75 163 525 16 91 612 763 370 353 196 680 176 211, 421 168 376 552 468 486 177 698 569, 580 206 212 715 401 301, 429 598 732 94 400 600 55 544 645 494 534 294 Smith V. Tett, V. Torr, V. Twoart, V. Walton, V. White, V. Widlake, V. Wilson, V. Wright, Smyth V. Carter, V. Nangle, Sneesby r. Thorne Snell (•. Finch, Snow V. Cutler, Soady v. Wilson, Soathwell v. Scotter, Solley V. Wood, Solly V. Forbes, Somerset (Duke) v. Fogwell, Soprani r. Skurro, Sorsbie v. Park, PAOB 791 421, 487 635, 541, 550, 552 137, 348, 382 198, 629, 633, 664 8 137 488 612 3(i5 110, 115 425, 430, 460, 512 203 570 307 78, 366 135 82, 83 189 160 Soulsby V. Neving, 543, 746 Souter I.-. Drake, 95, 244 Southall (.'. Leadbetter, 378, 555, 557 Southampton v. Brown, 385, 528 Soutlicomb V. Exeter (13ishop), 115 Soutlicote y. Hoare, 160 South-Eastern Kail. Co. v. Knott, 115 South Kensington Stores, In re, 433 Southouse V. Jenkins, 4 Spark V. Smith, 263 Sparrow v. Bristol (Earl), 270 V. Hawkes, 357 Spedding i\ Nevell, 62 Spencer i-. Marriott, 677, 678, 082 V. Parry, 562, 565 Re, 39 Spencer's case, 162, 166, 239, 254, 258, 263 Spicer v. Barnard, 717, 721, 724, 726 Spike V. Harding, 615 Spragg V. Hamtnond, 561 Spratt V. Jeffery, 246, 259 Squier v. Mayer, 629 Squire v. Campbell, v. Whitton, Stacey v. Whitehouse, Stadhart v. Lee, Stafford v. Gardner, (Marquis) v. Coyney, (Mayor of) v. Till, Stamford and Warrington (Earl) V. Dunbar, Stancliffe, app., Clarke, rcsp., 390, 393 Standard Discount Co. v. La- grange, 795 Standen v. Chrismas, 252, 596 Stanley v. Hayes, 569, 677 V. Towgood, V. AVharton, 112 88 723 169 754 699 540 686 589 472 TABLE OF CASES CITED. [References are to the Btar paging.] Stausfeld v. Portsmouth (Mayor), 270, 631, U4-1 Staple V. Heydon, 82 Stapylton v. Clough, 355 Statham f. Liverpool Docks Trus- tees, 368 Stavely ;'. Allcock, 421 Stead V. Creagli, 286 V. Dawber, 93 Stedinan u. Bates, 423 V. Page, 423, 459 V. Smith, 614 Steele v. Mart, 150, 151, 161, 190, 538 V. Midland Rail. Co., 140 V. Western, 611 V. Wright, 409 Steevcn's Hospital v. Dyas, 119 Stephen, Ex parte, Lavies, In re, 280 Stephens v. Bridges, 308 r. Hothan), 117 Stephenson's case, 159 Stevens v. Adamson, 107, 243 V. Austin 109 V. Copp, 166, 182 V. Evans, 572 I'. Gourley, 730 Stevenson v. Lamhard, 261, 264, 401 V. Liverpool (Mayor of) 49 V. Newnham, 465 V. Wood, 284 Steward v. Lombe, 640 Stewart r. AUiston, 89 r. Aston, 199 f. Eddowcs, 93 Stocker v. Phmet Building Soc, 599 Stockley v. Stockley, 100 Stockport Water Works Co. r. Potter, 125, 710, 710 Stockton Iron Co., Tn re, 234, 282 Stokes V. Cooper, 544 V. Russell, 165, 253, 372 Stokoe V. Singers, 706 Stone I'. Evans, 261, 263 V. Rogers, 186 V. Whiting, 304 Storer c. Hunter, 639 Storey v. Robinson, 435, 442 Story ;•. Finiiis, 488 V. Johnson, 38 Stott V. Clegg, 81 Stoughton r. Leigh, 424 Stowcll r. l{ol)insoM, 93, 243, 247 Stra<'han i-. 'j'liomas, 533 Stradlirookc v. Malchy, 751 Straiiks r. St. John, 95, 075 Stratford r. Boswortii, 105 Strattoii r. IVttitt, i:;2 Strickland /•. Eawcett, 696 V. Maxwell, 135, 339, 701 PAGB Strutt V. Robinson, 187 Stuart V. London and North Western Rail. Co., 91 Stubbs V. Estcourt, 690 V. Parsons, 414, 560, 568 Stukely v. Butler, 426 Sturgeon v. Wingfield, 2, 55, 213, 214, 548 Styles V. Wardle, 150,.151 Suffield V. Brown, 702, 713 Sullivan v. Bishop, 414, 745, 749 V. Jones, 549, 550 Sumner v. Bromilow, 043 Sunipter i\ Cooper, 193 Sunderland v. Newton, 622, 631 Overseers v. Sunderland Union, 673 Surconib v. Pinniger, 101 Surplice r. Farnsworth, 173 Sury V. Brown, 81 V. Pigot, 82 Sussex (Countess of) v. Wroth, 203 Sutcliffe V. Booth, 712 Sutherland v. Briggs, 93, 100 Sutton, /;; re, 443 v. Dorke, 523 V. Jones, 203 V. Rees, 443 V. Temple, 173, 174, 698 Sutton's case, 9 Swaine v. Hoinian, 71 Swan V. Stransliam, 173 Swann ^•. Falmouth (Earl), 416, 464 Swansea Bank r. Thomas, 406 Swatman r. Ambler, 99,161,189,537 Sweet V. Seager, 555 Sweeting v. Turner, 244 Swinfen r. Bacon, 746 Swire V. Leach, 485, 440, 523 Sym's case, 44 Synie v. Harvey, 636 Symonds ;;. Seaborne, 738 Symons v. Symons, 404 Talbot v. Tipper, 382 Talentine v. Denton, 421 Tancred r. Christy, 743 r. Levland, 464 Tanficld v. Rogers, 380 Tanham r. Niciiolson, 344 Tankerville (Lord) v. Wingfield, 200 Tanner v. Christian, (>;! V. Wasiibonrne, 753 Taplin r. Florence, 714 '!'a])!ing r. Jones, 686, 705 Tapj) r. Jones, 390 TAT5LE OF CASES CITED. Ixvii [References are to the star paging.] Tarte V. Darby, 304 Tasker v. EuUman, 81 172, 410 Tate I . Gleed, 4.50 Tateii V. Chaplain, 163 663 Tatham v. Piatt, 91 Taunton u. Costar, 741 Tawell r. The Slate Co. , 798 Tawney c. Crowtlier, 105 Tayleur v. Wildin, 210, 355 Taylor r. Caldwell, 110, 125 V. Chapman, 2 304 V. Cole, 270, 272 741, 787 V. Eastwood, 737 V. Evans, 5(i6 V. Henniker, 465 V. Horde, 120, 199, 200 203, 387 V. Jackson, 131 V. V. I^anyoii, Necdliam, 491 215 V. Phillips, 635 V. Portino'ton, 114 V. Shafto, 680 V. Shun, 101, 261, 262, 290 V. Stendall, 614, 734 V. Stibbert, 9 V. Taylor, 6 Taylorson r. Peters, 454, 8.39 Temp e r. Brown, 675 Temp eman v. Case, 502 Tennant ),'. Field, 415, 466, 476 V. Golding, 739 Tew V . Jones, 238, 637, 546 ■ V. Harris, 354 Thack er V. Wilson, 292 Thack erav v. Wood, 077, 680 Thetford (Mayor) v. Ti ier. 222 .540 551, 744 Thomas v. Brown, 89 V. Cadwallader, 108 594 V. Cook, 304, 542 V. Fredericks, 83, 546 V. Harries, 415 466, 477 V. Hayward, 165, 664 V. Packer, 181, 221 223 311, 312 V. Patent Lionite Co., 433 V. Reece, 349 V. Thomas, 704 716 V. Thorn Williams, ison ('. Brown, 552 171 V. Gibson, 732 736 V. Guy on, 368 V. Hakewill, 11, WO, 423, 252, 530 V. Tnji;ham, 814 V. Lapworth, 555, 556 V. Maberley, 155, 337 V. Mashiter, 441 V. Pettitt, 434, 4.38, r. Coke, Treloar v. Bigge, Ixviii TABLE OF CASES CITED. [References ave to the star paging.] PAGE Tremeere v. Morison, 291 Trent v. Hunt, 50, 341, 425, 430, 460, 405, 478, 512, 538, 747 Treport's case, 318 Tresham v. Lamb, 139 Tress v. Savage, 99, 128, 133, 222, 339 Trevillian r. Pine, Trevivan ?■. Lawrence, Tristan v. Baltinglas, Tritton v. Foote, Trumper v. Truinper, Tucker v. Linger, V. Morse, V. Newman, Tulk V. Moxhay, Tunimons i-. Ogle, Tunnicliffe r. Wilmot, Tupper V. Foulkes, Turner, In re, V. Allday, V. Barnes, V. Cameron, 460, 512 213 207 364 364 168, 180 9 734 163 500, 505, 508 500, 516 63, 190 264, 533 395 413, 427, 454 438 i;. Cameron's Coalbrook, &c. Co., 52, 197, 537, 738 V. Doe, 228 V. Ford, 415, 417, 489, 499 V. Hardey, 359 V. Hodges. 60 V. Hutchinson, (52 V. Lamb, 600 V. Marriott, 97, 113 V. Power, 187 V. SheflBeld and Rotherham Hail. Co., 734 Turnor v. Turner, 500, 517 Tutton i\ Darke, 452 Tweed v. Mills, 259 Tweedy, Ex jiarte, Trethowcn, Re, 642 Twynam v. Pickard, 253, 255, 264 Tyler v. Wilkinson, 709 Tylcy V. Seed, 335 Tyrringham's case, 691 U. (IvDKRHAY V. Undorliay, 146 Underhill v. Ilorwood, 150 Underwood v. Burrows, 220 Upsdill V. Stuart, 050 Upton V. CJreenlces, 409 V. 'I'ownend, 409, 532 Utlnvatt r. lOlkins, 74, 545 Utty Dale's case, 10 133, Van V. Corpe, Varley v. Coppard, Vas})er v. Eddows, Vaughan, Ex parte, V. Hancock, V. Taff Vale Rail. Co., Vaugliton V. Brine, Vaux's (Lord) case, Venning v. Bray, Vere v. Loveden, Vernon i\ Smith, V. Vernon, Vertue v. Beasley, Vickers v. Vickers, Vincent v. Godson, V. Siiarp, Viner r. Vaughan, Vivian v. Blomberg, V. Jegon, V. Mote, Voise.v, Ex parte, Knight, In Vollans r. Fletcher, VoUer r. Carter, A^onhoUen r. Knowles, Vowles V. Miller, Voyce V. Voyce, ' Vyse V. Wakefield, Vyvyan i'. Arthur, W. FAGK 121 661 475 328, 833 87, 419 651 94 157 92 121 164, 654 404 415, 465 113 222, 419 292 607 21 199 360, 361 re, 282, 283 94 538 134 614, 732 614 595 163, 173 Vallance v. Nasli, 513 Valiant v. Dodmede, 201 WAimnLi, i\ Wolfe, Waddilove r. Barnett, Waddington r. Francis, Wade V. Baker, V. Marsh, Wadham r. iMarlow, r. Postmaster-General, Wakeman r. T>itulsev, r. Walker, Wakley r. Froggatt, Walker r. Constable, I'. Gode', r. Hatton, V. Jefferys, V. Keeves, V. Richardson, ?'. Wakeman, r. Walton, Walkeu's case, Wallace v. King, V. McLaren, Wallen r. Forestt, Waller v. Andrews, 246 54 187 40 422 001 068 466, 478 207 126 243 349 531, 589, 601 110 261. 202 10,70 80 265 401, 532 479 422 804 397, 414. 555, 507, 571 V. Dean & Ch. of Norwich, 189 Wallis 1-. Delmar, 32, 229 TABLE OF CASES CITED. [References are to the star paging.] Wallis r. Harrison, i;. Littill, Walls V. Atchesoi), Walmslcy r. Milne, 52, V. Pilkiiiijrton, Walrond r. Hawkins, Walsal V. Heath, Walsh V. Davis, V. Fussell, V. Lonsdale, 86, V. Trevanion, I'. Watson, Walter ;;. Riimball, 457 Walters v. Morgan, V. Northern Coal Co., Walton, Ex parte, Levy, Wankford v. Wankford, Wansbrough v. Maton, Warburton c. Loveland, Ward V. Clarke, V. Const, V. Day, 125, 322, V. Hartpole, V. Henley, V. Luniley, 129, V. Mason, V. Robins, V. Shew, V. Smith, V. Ward, Wardell v. Usher, Wardle i'. Brocklehurst, Wardroper v. Cutfield, Waring v. Dewberry, V. Hoggart, t'. King, Warner v. Murdock, V. Potciiott, V. Willington, Warren i'. Matthews, V. Richardson, Warwicke v. Noakes, Washborn r. Black, Waterfall v. Penistone, Waterflow v. Bacon, Waterloo Bridge Co. v. Waterman v. Soper, Waters v. Weigall, Walking v. Major, V. Overseers of Mi Gravesend, Watkinson ?'. Man, Watson V. Atkins, i\ Holme, V. Lainc, V. Main, V. M'Lean, V. Waltham, 120, 280 247 304, 407, 542 025, 028, 036 305 325, 0()9 43 103 165 132, 335, 597 183 103 ,475,478,481 111 Mining 78, 98, 115 Re, 278 49 621 194 540 559, 509 323, 324, 417 200 520 199, 297, 534 550, 552 080 429, 459 531 686, 707, 711 017, 036 712 405 492 244 542, 744 96 22 88, 92, 103 695 100, 112, 246 397 476 642 120 508 017 400 Cull, Iton next 125 19 554, 557, 559 558, 568, 509 040 408 212 203 Watson )'. Waud, Weatlierell ;'. Geering, 410,417 110, 117, 118 Webb V. Austin, V. Bird, V. Hughes, V. l^lummer, V. Rhodes, V. Rorke, V. Russell, 'o'Z, 'o'o, Wcddall V. Capes, Weeding v. Mason, V. Weeding, Weekly v. Wildman, Weeks v. Maillardet, Weeton v. Woodcock, Weigal V. Waters, Welby IK Phillips, Welch V. Myers, Welcome v. Upton, Wehl V. Baxter, Welford r. Beazeley, Wells V. Attenborough, V. Moody, V. Partridge, V. Suffield (Lord), Werdon v. Pickering, Wesley v. Walker, West, 7?e, V. Blakeway, V. Dobb, V. Fritchie, 11. Hedges, V. Lascelles, V. Nibbs, V. Steward, Westbrook v. Blythe, Westerdell v. Dale, Weston V. Collins, V. Metropolitan Board, Westwood V. Cowne, Wethferell v. Howells, 213, 254 717 99 138, 175, 701, 762 195 78 165, 253, 254, 306, 309, 310, 317, 372 298 600 373 77 183 643 408, 592 384 469 686 9, 532 88 668 464, 626 61 797 559 90 642 171, 622, 629, 638 165, 314, 656 234, 341 491 400 417, 468 183, 199 194 263 116 316 480 Asylums 618, 627, 636, 711 Whaley v. Laing, 685, 709 Wharton v. Naylor, 437,443,490,493 Whoate r. Hall, Wheatley ?■. Boyd, V. Brymbo Coal Co., Wheeler v. Branscombe, V. Gray, r. Hey don, r. Montefiore, c. Stevenson, r. Wright, Wheldon v. Matthews, Whetstone v. Davis, Whistler v. Paslow, Whitaker r. Wisbey, 103 161, 539 669 64, 539 731 24 197, 235, 732, 738 320, 809 246 186 799 178, 179 47 Ixx TABLE OF CASES CITED. [References are to the star paging.] PAGE White V. Bass, 702, 704 V. Bayley, 236 V. Binstead, 492, 493, 495, 497 t'. Cuyler, 63 V. Greenisli, 502, 512 V. Jameson, 735, 737 V. Leeson, 206, 703 V. Nicholson, 588 V. Sayer, 755 V. Sniale, 59, 430 V. Wakley, 591, 742 I'. Warner, 328 V. Willis, 525 Wliiteacre v. Sj^monds, 357 Wliitehead v. Bennett, 628 V. Clifford, 303, 550, 552 V. Parks, 711, 714 V. Taylor, 427, 460 Whitelock v. Hutchinson, 691 Whitenian v. King, 424, 693 Whitfield v. Brandvvood, 558, 560, 569 V. Pindar, 404 V. Weedon, 615 Whitley v. Koberts, 422 Whitlock V. Horton, 11, 132 Whitlock's case, 386 Whitmore ;■. Empson, 642 V. Humphries, 742 V. Walker, 54 Whittaker r. Barker, 764 Whittington, ^.r /OT?-: Wood, 138, 176, 603 Wilkinson v. Calvert, 336, 728 V. Cawood, 399 V. Clements, 115 PAOB 343, 746, 790 580 Wilkinson v. CoUey, V. Collier, V. Evans, 88 V. Gaston, 150 V. Grant, 196 V. Hall, 160, 224 235, 333, 745 1). Hay garth, 611,694 V. Rogers, 164, 663 Wilks V. Back, 63 Willesden (Overseers of) v. Over- seers of Paddington, 333 Williams, E.r parte, 234, 282 V. Bartholomew, 325, 396 V. Bosanquet, 261, 263, 319 V. Burrell, 173, 675, 678 V. Earle, 163, 164, 165, 166, 657 V. Evans, 2, 101, 258, 263, 642 V. Groucott, 615, 738 V. Ha J' ward. 252, 264, 402 V. Headland, 294 V. Heales, 290 V. Holmes, 441 V. James, 699 V. Jones, 125, 526 V. Jordan, 88 V. Lake, 88 V. Lewsey, 493 i;. Moreland, 685 V. Morris, 481 V. Roberts, 468, 469 V. Sawyer, 297 V. Stiven, 356, 413 418, 453 V. Williams, 103, 601, 636 Williamson v. Will anison. 657 Willingale v. Maitl ind. 77 Willingham r. Joj'ce, 106, 118 Willington r. Brown, 215 AVillis r. Parkinson , 615 r. Whitewood, 40,41 Willoughby v. Backhouse, 464, 465, 525 Wills V. Stradling, 100 Wilmore r. Cain, 142 Wilmott )'. Barber, 111 Wilson, AV, 281 Kx parte. 538 V. Abbott, 221, 225 V. Anderson, 141 V. Bagshaw, 703 V. Davenport, 414 V. Hart, 162, 164, 664, 672, 677 ?•. Fincli-Hatton, 174, 5!»1 i\ Nightingale, 478 I.. Sewell, 203,301,304 V. Wallani. 278 V. West Hartlepool Rail. Co.. 100, 119 V. Whateley 638 V. Wigg, 290, 291 TABLE OF CASES CITED. Ix XI [ReferenceB are to the star paging.] Wilson !'. Willes, V. Wilson, 24c Wilton r. Dunn, WiltshirL' v. Cottrell, • V. Siilford, Winch c. Winchester, Windham's case, Windsinore v. Hubbard, Windsor's case (Dean and C Winn V. Bull, Winter v. Erockwell, V. Duinergue, V. Loveday, 200, V. Trimmer, Winterbottom v. Ingliam, Winterbourne v. Morgan, Wintle V. Freeman, Wiscot's case, Wise V. Metcalfe, Withers v. Birchman, Witty V. Williiims, WoUaston v. Halcevvill, 162, Wolveridge v. Steward, IGl, Womerslcy v. Dalley, Wood and Chiver's case, V. Beard, V. Clarke, V. Coj)])er Miners' Co., V. Davis, V. Day, 168, V. Hewett, V. Keep, V. Leadbitter, 79, 126, V. Manley, V. Midgley, V. Nunn, V. Rowcliffe, V. Scarth, V. Tate, V. Waud, 707, 711, Woodcock V. Gibson, V. Nuth, V. Titterton, Woodcroft V. Thompson, Woodgate i'. Knatchbull, Woodhouse's case, Woodhouse v. Jenkins, V. Walker, Woods V. Durrant, V. Hyde, 115, 118, V. Pope, Woodward ?-•. Aston, V. Gyles, Woolam V. Hearn, Woolaston v. Hakewill, app., Stafford, resp., Woolcock r. Dew, PAGE 694 ,247 , 654 54 620 628 614 112 153 145 .of) 163 105 714 247 205 210 390 2.37 54(J 479 491 43 597 160 378 258, 264, 289 291 261, 262, 263 764 324 394 154 440 159 90 155 169, 532 624 111 481, 714 481, 714 105 463 183 ) 111 428 712, 716 32 304, 305 457 475 472 150 676 610 476 344, 345 600 300 391, 612 91, 112 191 487 589 PACK Wooler I'. Knott, 670 Wooley V. VV'atling, 537 Wootley tK (Jregory, 372 478 Wootton )'. Hele, 679 V. Steffenoni, 72 252 Worcester School Trustees V. Rowlands, 589 591 599 Worledge r. Benbury, 61 Worinald v. Maitland, 191 193 Worthani r. Lord Dacre, 369 Wortliington r. Ginison, 142 ,703 714 t'. Warrington, 95 186 Wrenford v. Gyles, 158 296 Wright V. Burroughs, 255 V. Cartwright, 144, 146, 158 V. Colls, 95 I'. Dewes, 443 V. Dickson, 135 V. Goff, 217 V. Howard, 708 V. St. George, 104 V. Smith, 388, 746 V. Stansfield, 193 11. Stavert, 87 I". Tracy, 221 V. Williams, 687, 710 Wrighton r. Newton, 247 Wrotiesley v. Adams, 153 Wyatt V. Cole, 221, 222 Wyburd v. Tuck, 144 Wyndham r. Way, 179, 617, 637 Wynne v. Bampton, 378 V. Ingleby, 629 V. Newborough, 68 Y. Yates 7-. Boen, 45 V. Church, 8 V. Cole, 253 V. Eastwood, 485, 524 V. Jack, 705 V. Ratledge, 491, 492 Yellowly v. Gower, 175, 206, 387 Yeo V. Leman, 558 Yeoman ?•. Ellis, 237 V. Ellison, 419 Young ('. Brompton, &c. ,W. W. Co., 505 V. Holmes, 49, 287 V. Mantz, 589 r. Raincock, 679, 683 V. Spencer, 608 Zappert, Re, 280 Zerf ass, Er parte, Sandwell, In re, 279 Zouch V. Parsons, 38, 301 V. Willingale, 324, 356, 420 LIST AND EXPLANATION OF THE ABBREVIATIONS. A. &E. Aml)l. . Andr. . Anstr. . Atk. . Bac. Abr. Ball & B. Barnard. Barnes B. & A. B. & Ad. B. & C. B. & S. Beav. . Bing. . Bing., N. C. Blac. Com. Blac. H. . Blac. W. . Bli. . . Bli. N. S. B. & P. . B. & P., N. Brad by Brid' &, Lowndes. Dowliny- & Kyland. D re wry. Drewry & Smale. j Drury & Warren \ (Irish). Ellis & Blackburn. ( Ellis, Blackburn & El- \ lis. Ellis & Ellis. Equity Cases Abridg'd. Esj)inasse. Exchequer Reports. f Fitzherbert's Natura \ Brevium. Fortescue. Foster & Finlaison. Freeman. Fry on Specific Per- formance. Gale & Davison. Glyn & Jameson. Gale & Merivale. Gil't'ard's Reports. Godbolt. Hurlstone & Coltman. Ilenmiing & Miller. Hurlston & Norman. / Harrison & Ruther- \ furd. Hall & Twells. Hardres. f Hawkins's Pleas of the \ Crown. Hobart. Holt's Nisi Prius Cases. House of Lords Cases, by Clark & Finnelly — and Clark. I Hudson & Brooke \ (L-ish). Hiitton. Lord Coke's Institutes. Irish Chancery. Irish Equity Reports. Irish Law Reports. Jacob. Jacob & Walker. Jolmson. Johnson & Hemming. I Jones & Latouche \ (Irish). Sir Wm. Jones. Sir Thos. Jones. Jurist (Old Series). Jurist (New Series). Kay & Johnson. Keb. . . Ken., Ld. . L. J. . . L. J., O. S. L. R., H. L. L.R.,H.L.Sc. L. R., P. C. L. R.,Ch.Ap L. R., Eq.. L. R., Q. B. L. R., C. P. L. R., Ex. . L. R., C. C. L. R.,P. &D L. R.,Adm.& Ecc. . . L. R., App Cas. . . L. R., Ch. D. . L.R.Q.B.D. L.R.,C.P.D. L. R, Ex. D. L. T. . . L. T., O. S. Leg. Obs. . Leon. . . Lev. . . Lit. . . . L., M. & P. Lutw. . M'Clel. . M'Clel.&You. Mac. & G. Macq. H.L.C Madd. . . M. & G. . M. & P. . Keble. Lord Kenyon's Re- ])orts. Law Journal Reports, New Series from 1831. Do. — Old Series, 1822 -18:J1. The Law Reports (from IHOo) — House of Lords Cases. Do. — Scotch Appeals. Do. — Privy Council. Do. — Chancery Ap- peals. Do. — Equity Cases. Do. — Queen's Bencli. Do. — Common Pleas. Do. — Exchequer. Do. — Crown CasesRe- served. Do. — Probate and Di- vorce. Do. — Admiralty and Ecclesiastical. TheLaw Rejiorts (from 1875) — House of Ivords and Privy Council Cases. Do. — Chancery Divis- ion and Appeals therefrom. Do. — Queen's Bench Division and Ap- peals therefrom. Do. — Common Pleas Division and Ap- peals therefrom. Do. — Exchequer Di- vision and A])peal8 therefrom. Law Times (New Se- ries). Law Times (Old Se- ries). Legal Observer. Leonard. Levinz. Littleton's Tenures. Lowiults, Maxwell & I'cdlock. IjMtw\clie. M'Clelaiid. M'Cleland & Younge. Ma(nMghten& Gordon. Maeqneen's House of Lords Cases (Scotch Appeals). Maddoek. Manning & Granger. IMoore & I'ayne. Ixxiv LIST AND EXPLANATION OF ABBREVIATIONS. M. & R. . M. & S. . M. & W. . Marsh. . . Mer. . . Mod. . . Mood. . . Moo. & M. Moo. & 11. Moor . . Moo. . . Moo. & P. Moo. & S. Morrell . Myl. & Cr. Myl. & K. N. & M. . N. & P. . New R. . P. Wins. . P. & D. . Piiil. . . Plow. . . Pollexf. . Q. B. Raym., Ld. Raym., T. Roll. Abr. Ros. Ev. . R. S. C. . Riiss. . . Russ. & M. Rv. & Moo. Salk. . . Saund. Say. . . S(-h. & Lof. Scott, N. R . Manning & Ryland. . Maule & Selwyn. . Meesoii & Welsby. . Marsliall. . Merivale. . M)Jern Reports. . Moody. . Moody & Miilkin. . Moody & Robinson. f Sir F. Moor's Report? •\ (1(502). f J. B. Moore (1815- •1 1827). . Moore & Payne. . Moore & Scott. f Morrell's Bankruptcy ■\ Reports. . Mylne & Craig. . Mylne & Keene. . Nevile & Manning. . Nevile & Perry. J New Reports of Bosan- ■ \ quet & Puller. . Peere Williams. . Perry & Davison. . Phillips. . Plowilen. . PoUe.xfen. f Qiieen'sBenchReports { (Adolpluis & Kllis, •" New Series, 18:34- [ lS:u). . Lord Raymond. . Sir Thomas Raymond. f Lord Rolle's Abridg- ■ \ tnent. . Roscoe on Evidence, f Rules of Supreme ■ \ (^ourt. . Russell. . Russell & Mylne. . Ryan & Moody. . Salkeld. . Sauixlers. . Snyer. J Sciioale & Lefroy •■j (Irish). , . Scott's New Reports. Select Ch.Cas Selw. N. P •{ Shep. Touch. Show. . . . Sid Sim. . . . Sim., N. S. . Sim. & Stu. . Skin. . . . Sm. & Giff. . Smith, L. C. . Stark. . . . Stra. . . . Sty. . . . Sug. Pow. Sug. V. & P. . I Swans. . . . Sw. & Tr. . Taunt. . . T. R. . . . Turn. & Russ. Tyr. . . . Tyr. & Gr. . Vaugh. . . Vern. . Ves. . . . Vez. . . . V. & B. . . Vin. Abr. W. R. . . . Wightw. . . Wilk.Replev. i Wilm. . . . Wils. . . . Wms. Saund. Yelv. . You. . Y. &C. Y. & C. C Y. & J. Select Cliancery Cases, Selwyn's Nisi Prius (l;]th ed.). f She])pard's Touch- \ stone). . Shower. Siderfin. Simons. Simons, New Series. Simons & Stuart. Skinner. Smaie & Giffard. Smith's Leading Cases. Starkie. Strange. Style. Sugden on Powers. / Sugden on Vendors \ and Purchasers. Swanston. Swabey & Tristram, Taunton. Term Reports. Turner & Russell. Tyrvvliitt. Tyrwhitt & Granger. Vaughan. Vernon. Vesey, junior. Vesey, senior. Vesey & Reames. Viner's Abridgment. Weekly Reporter. WightWick. Wilkinson on Re- pk'vm. Wihiiot's Notes. Wilson. Saunder's Reports, with Notes by Ser- jeant Williams, &c. Yelverton. Younge. Younuu' & Collyer, Exch. Do. — Chancery. Younge & Jervis. HISTORICAL OUTLINE, WITH ABSTRACT OF LEADING PROPOSITIONS. It is proposed in this Chapter to set out in a concise and read- able form the leading propositions of the law of England affecting the relation of landlord and tenant ; but it may perhaps be well to begin with a very brief historical sketch of the statute law. We may omit some early statutes, chiefly concerned with the landlord's peculiar remedy for recovery of rent by distress {a), and proceed at once to 32 Hen. 8, c. 34. Most of the statutes which will call for notice, and indeed most of the numerous statutes which have from time to time dealt specifically with the subject, ai'e still unrepealed. By 32 Hen. 8, c. 34, it is provided that grantees of reversions may take advantage of conditions and covenants in leases ; and by another act of even date, 32 Hen. 8, c. 37, that executors may sue or distrain for rent due to their testator in his lifetime. The statute 1 & 2 Ph. & M. c. 12, enacts that cattle seized for rent may not be driven out of the hundred where they are taken, except to a pound overt within the same shire not above three miles distant. The effect of the Statute of Frauds was to enact that leases for more than three years, and all agreements for leases, however short, must be in writing. It was not until 1689 that distress ceased to be merely a pledge in the hands of the landlord. An act passed in that year provides that goods distrained for rent may be sold unless the tenant shall within five days " replevy" them, that is, proceed in due course of law, and in the peculiar manner appropriate to such procedure, to prove that the procedure was wrongful. At common law an assignment of a reversion was not good against a tenant unless tlie tenant "attorned to" or recognized his new landlord. An act of Anne did away with the necessity (a) 51 Hen. 3, stat. 4 ; 62 Hen. 3, stat. 4; 3 Edw. 1, c. IG ; 3 Edw. 1, c. 17. Ixxvi HISTORICAL OUTLINE. for attornment, but provides that the new landlord cannot take advantage of uou-paN ment of rent, without having given notice of the assignment of the reversion to the tenant. Another act of Anne, 8 Ann. c. 14, is of great importance. It provides that no goods lua^' be taken in execution without the ex- ecution creditor paying the landlord up to one 3ear's arrears of rent; and that a distress may be made at any time within six months after the termination of a lease. A further provision of the same statute — that landlords might follow goods fraudulently re- moved to avoid a distress — was not long afterwards superseded by a more extensive provision to the same effect. In the reign of Geoi'ge the Second it was enacted that tenants holding over after a landlord's notice might be sued for double the yearly value of the premises, and in order to remedy inconveniences happening " by reason of the many niceties that attend the re- entries at common law," that landlords entitled by law to re-enter might re-enter in case of half year's rent being in arrear and no sufficient distress being found on the premises, the statute i)rovid- ing at the same time that on the tenant paying all arrears of rent the proceedings should cease. These latter provisions were super- seded by enactments to the same effect in the Common Law Pro- cedure Act of 1852. The statute 11 Geo. 2, c. 19, is a long and important one. It extends to thirty the five days which were allowed by the statute of Anne for following goods fraudulently removed to avoid dis- tress, confers upon the landlord power to break open places of concealment anywhere, and visits with heavy penalties persons in collusion with the tenant. It benefits both landlord and tenant alike by allowing a distress to be impounded on the demised prem- ises. It provides for the recovery by a landlord of compensation for "use and occu[)ation " although the contract of tenancy be written, so long as it is not by deed — thus obviating the nonsuits which might otherwise arise. It allows landlords to recover de- serted premises ])eforo justices of the peace in cases wlierc one year's n^nt is in arrear and no sufliciont distress is found on the premises, and to recover double rent from tenants holding over after their own notice to quit. This also is the statute which first provided for "apportionment" of rent in the case of a landlord, being himself tenant for life, dying between two rent days; the rule of th(' common law having liecn that in such a case the exec- utors of the landlord could recover nothing. HISTORICAL OUTLINE. Ixxvil The act 56 Geo. 3, c. 50, provides that sheriffs may not carry off straw or other agricultural produce iu cases where the tenant has covenanted with the landlord to consume such produce on his farm ; and the act 5.7 Geo. 3, c. 93, fixes a limit to the expenses of a distress where tlie sum due does not exceed 20^ By 1 Geo. 4, c. 87, it was first enacted that tenants holding under a contract in writing, and wrongfully holding over, might be compelled iu a summary way to give security for the costs of an ejectment and might be ejected. This provision was super- seded by a very similar one of the Common Law Procedure Act, 1852. By 1 & 2 Vict. c. 74, provision is made for the recovery before justices of the peace of small premises wrongfullv held over ; the statute applying only to tenancies at will, or for not more than seven years, or at a rent of not more than 201. a year. In 1845 it was enacted, in effect, that leases for more than three years must be b\- deed, and a concise statutory form of lease was provided. In this form, the proviso for re-entry applies to breaches of covenant generally. Although it had been laid down in Eboes v. Mawe, in 1803, that the exceptions gradually introduced into the doctrine of irre- movability of fixtures did not extend to agriculture, it was not till 1851 that the agricultural tenant obtained relief. An act passed in that year gives to this class of tenant the right of removing fix- tures elected with the written consent of the landlord, tliis right being subject to an option of purchase by the landlord. The same statute provides for the prolongation till the end of the current year of the term of a tenant determined by the death of a landlord who was himself only a tenant for life, the prolongation being given in lieu of the common law right to the growing crops and other "emblements." The Common Law Procedure Act, 1852, re-enacted in substance the provisions of 4 Geo. 2, c. 28, and 1 Geo. 4, c. 87, as to re- covery of premises in case of non-payment of rent and in case of holding over. The County Courts had not originally jurisdiction in ejectment, but the County Court Act, 1856, adopts with little variation the provisions of the Common Law Procedure Act above referred to. The act 22 & 23 Vict. c. 35, provided for the relief of a tenant against forfeiture for non-insurance, for the relief of the executors of a tenant, having assets, against certain personal liabilities, and for lxx\'iii HISTOKICAL OUTLINE. the preservatiou of the right of re-entry in case of a severance of the reversion. The act 23 & 24 Vict. c. 38, enacts that one waiver of a breach of covenant shall not operate as a general waiver. In 1870 a comprehensive "Apportionment Act" was passed, pro- viding for the apportionment of rent between the heirs and executors of a landlord ; but occasion was not taken to repeal the many pre- vious acts in pari materid or any of them. In 1871 the goods of lodgers, which at common law are liable to be seized for rent due to a superior landlord, were first rendered exempt from such distress, and a similar protection was extended in 1872 to railway' rolling stock. The Agricultural Holdings Act, 1875, which applied where ap- plicable unless it had been excluded in writing by the landlord or tenant, extended the notice to quit, which was requisite in the case of an implied tenancy from year to year, from half a year to twelve months ; gave to agricultural tenants a primd facie jsroperty in fixtures ; and allowed such tenants compensation for certain im- provements therein specified. The statute was applicable only to such holdings of tAvo acres or more, as were either wholly agricul- tural or wholly pastoral. Statistics show that the operation of the statute was excluded by landlords taking advantage of its permis- sive clauses in the vast mtijority of cases, and that from a variety of causes it was unpopular with the vast majority of agricultural tenants. It is repealed by the Agricultural Holdings Act, 1883, but prospectively only, so that, where not excluded by wiating, it still applies to tenancies current or created between the 14th Feb- ruary, 1876, and the 31st December, 1883. It would not be worth while to notice the Settled Estates Act, 1877, were it not that, in sect. 4G, it limits the application of the proviso for re-entry to cases of .non-payment of rent, whereas both the corresponding section of the Settled Estates Act, 1856, and (as we have seen) the form provided by the Legislature in 1845 had applied such proviso to the breach of covenants generally. The Ground Game Act, 1880, for the first time in the history of the subject, interferes with the liberty which landlord and tenant have at common law to make what contracts they please. Where the contract of tenancy was silent, game was always the property of the tenant b}- virtue of his property in the land. Landlords, however, have for a long time been in the habit of "reserving" the game to themselves by special stipulation, and where this is the case the tenant is punishable upon summary conviction, under HISTORICAL OUTLINE. Ixxix the act 1 & 2 Will. 4, c. 31^ for takiug the game. With respect to hares and rabbits, the Ground Game Act, although it does not interfere with existing leases, provides that such reservations shall in future only have the effect of giving the landlord a " concurrent right" with the tenant to kill and take them. The Conveyancing and Law of Property Act, 1881, contains most important provisions respecting "relief against forfeiture " of leases for breach of covenant. It had been for a very long time the practice to insert in the lease a proviso for forfeiture of the lease by the tenant, and re-possession of the premises by the land- lord, in case of breach by the tenant of any of his covenants what- ever. In the case of a breach of a covenant to pay rent, a court of equity from ver3' early times, and, by the Common Law Pro- cedure Act, 1860, a Court of I>aw, would interfere to prevent the landlord enforcing this proviso, upon the tenant paying the rent : and in the case of a breach of a covenant to insure, a special and conditional power to relieve against the forfeiture had been created by statute, being given to a Court of P^quity by 22 & 23 Vict. c. 35, and to a Court of Law b}^ the Common Law Procedure Act, 1860. But except in these two cases, and in the cases of accident or sur- prise, no relief could be given, were the breach ever so trivial, or the improved value of the demised premises accruing to the land- lord b}' insisting on the forfeiture ever so great. The Act of 1881 mitigates this hardship on the tenant, b}' empowering the Chancery Division of the High Court to grant relief against forfeiture for breach of any covenant or condition, except the covenant not to part with the premises without leave of the landlord and the cove- nant in a mining lease to allow inspection of books, and the con- dition for forfeiture in case of bankruptcy ; and this enactment takes effect, not only notwithstanding any stipulation to the con- trary, but also upon leases made either before or after the com- mencement of the act. The Settled Land Act, 1882, very greatly extends the powers of tenants for life b^' authorizing them to make building and mining leases, and to accept surrenders of leases. The Agricultural Holdings Act, 1883, is a statute of the highest importance to the landlords and tenants of agricultural or pastoral holdings or market gardens. Modelled to a very great extent upon .the Agricultural Holdings Act, 1875, it differs from that act in being mainly compulsory, and partly retrospective. The outgoing tenant acquires a right to compensation for certain specified im- Ixxx ABSTRACT OF LEADING PROPOSITIONS. provemeuts, the act requiring, howevw, in the case of buildings and other improvements of an expensive character, the consent of the landlord to the execution of them, and in the case of drainage, giving the landlord power to execute drainage works himself, charg- ing the tenant with the cost. The tenant also acquires a property in fixtures and buildings subject to the landlord's power to acquire them by purchase. The notice to quit in the case of an implied tenanc}' from year to year, which is a half-j'ear's notice at common law, becomes a year's notice. Travelling into quite a distinct sub- ject matter, the act also mitigates the hardships of the law of dis- tress by reducing the period within which arrears of rent may be distrained for from six years to one, by exempting from distress agricultural machiner}'^ and live stock taken in for breeding or feed- ing, by limiting the charges upon a distress, by extending the time within which a distress may be redeemed, and by requiring all dis- tresses to be taken b}' certificated bailiffs. Lastly, the Housing of the Working Classes Act, 1885, greatly infringes a hitherto leading rule of the law of landlord and tenant by the provision that in every contract for letting a house at a cer- tain low rent there shall be implied a condition that the house is reasonably fit for human habitation. It is noteworthy that in the bill, as originally presented b}' the Government to the House of Lords by Lord Salisbury, this clause was intended to be of uni- versal application. These, then, very briefly, are the principal English (b) statutes affecting the relation of landlord and tenant. A short collection of the leading propositions of the law of tlie subject is now sub- mitted. (b) But few of the English statutes Landlord and Tenant. The Irish relate also to Scotland or Ireland. cotntnon law, on tlie other liand, is Tiie following are exceptions : — The identical witli the Enj;lis]i, and the Kniblements Act, 1851 (14 & 15 Vict. Irish statutes very numerous. The (!. '2')), and the Lo(l<,'ers' Goods Pro- principal Irish statutes are: 14 & 15 tection Act, 1871 (o4 & 35 Vict. c. Vict. c. 57 (remedy by tenant dis- 70), relate to Ireland, while the Ap- trained on b}- superior after paying portionment Act, 1870 (:);3 & 31 Vict. rent to immediate landlord); 2.3 & c. 35), and the Railway Hollinfr Stock 24 Vict. c. 154 (summary ejectment, Protection Act, 1872 (35 & 3(; Vict. prolongation of term in lieu of enible- ('. 50), relate both to Ireland and ments, distri'ss for one year's rent Scotland. The Scotch common law onl}') ; 33 & .")4 Vict. c. 45 (legality of the subject is widely different from of tenant right) ; and 44 & 45 Vict, the English, and the Scotch statutes c. 40, " The Land Law (Ireland) Act, which specifically relate to the sub- 1881." /b'ee Furlong's Landlord and . ject are very few. See llunter'a Tenant. DISABILITIES OF LANDLORD OR TENANT. Ixxxi Definitions. Landlord and tenant. — The relation of landlord and tenant is created by the landlord allowing the tenant to enjoy the landlord's house or land for a consideration termed rent, recoverable by distress. Reversion. — Reversion is the interest remaining in the landlord, who is therefore frequently termed the reversioner. Tenant for years. — A man is a tenant for years where the landlord lets land or tenements to him for a term of certain years, agreed upon between the landlord and the tenant, and the tenant enters by force of the lease. Tenant from year to year. — A tenant from year to year is one who, by a contract of tenancy, implied from entry and the payment of rent with reference to a yearly tenancy, is entitled to half (e) a year's notice to quit, expiring at that period of the year at which his tenancy com- menced. See Doe v. Coates, 7 T. R. 85, and p. 219, post. Tenant at ■will. — A tenancy at will takes place where the letting is for no certain term, but is to continue for the joint will of both parties, and no longer. Tenant by sufferance. — A tenant by sufferance is one who comes in by right and holds over without right, as if a tenant for the life of another continue to hold after the death of him for whose life he entered. See Smith, L. & T. 13, 16, 31. Lease. — Any contract of tenancy is a lease, but the expression " lease " is commonly restricted to a contract of tenancy for yeai's or lives by deed. Disabilities of Landlords. Settled estates, &c. — Infants, lunatics, owners of settled estates and other persons under disability become landlords under certain statu- tory restrictions, the principal restriction being that owners for life may bind remaindei--men by leases for building purposes for 99 years, for mining purposes for 60 years, and for other purposes for 21 years and no longei", and that those who represent landlords under disability make leases under the supervision of the Chancery Division of the High Court of Justice. Settled Land Act, 1882, s. 6, p. 7, post. Ecclesiastical corporations. — Ecclesiastical corporations may, with the consent of the Ecclesiastical Commissioners, grant building leases for not more than 99 years. Parsons may let glebe for not more than 14 (c) If the Agricultural Holdings Act applies (see Ixviii., post) the notice is a year's notice. Ixxxii ABSTRACT OF LEADING PROPOSITIONS. years (or 20 years, if the tenant covenant for improvements), with the consent of bishop and patron. 5 & 6 Vict. c. 27, p. 23, post ; 21 & 22 Vict. c. 57, s. 2, p. 24, post. Municipal corporations. — IVIunicipal corporations may not let lands for more than 31 years without tlie consent of the Treasury. Municipal Corporations Act, 1882, s. 108, p. 17, post. Disabilities of Tenants. Spiritual persons. — Spiritual persons may not take leases of more than 80 acres of laud without the consent in writing of the bishop of the diocese. 1 & 2 Vict. c. 106, s. 28, p. 68, post. Charity trustees. — Trustees for charitable uses can only take leases by deed made 12 months before the deatlr of tlie landlord. Mortmain Acts, p. 69, post. Infants. — A lease to an infant is not void, but only voidable on his coming of age. Baylis v. Dyneley, 3 M. & S. 477, and p. 70, post. Agreement for Lease (d). Specific performance. — An agreement for a lease must be in writing and signed, to be sued upon as such ; but he who enters and pays, or agrees to pay rent under an oral agreement for a lease, or otherwise partly performs the agreement, may ol)tain a decree for a lease. Stat. Frauds, s. 4, p. 85, post ; Nunn v. Fabian, L. R., 1 Ch. 3-5, p. 100, post. Stamp. — The stamp upon an agreement for a lease not exceeding 35 years is the same as the stamp upon a lease, and the stamp upon a lease made in conformity with an agreement duly stamped is sixpence. Stamp Act, 1870, s. 90, and p. 94, post. Title of landlord. — Under an agreement for a lease for years, the intended tenant may nof^ call for the title of the intended lessor, whether the premises intended to be leased be freehold or leasehold. Vendor and Purchaser Act, 1874,8. 2, p. 2, post; Conveyancing Xv.t, 1881, s. 13, p. 2, post. (rf) As to the position of a person agreement for a lease, see Wnlsli v. entering and paying rent under an Lonsdale, 21 Ch. D. 9, and p. 80, yws/. CONTllACTS, EXPRESS AND IMPLIED. IxxxiH Lease. Mode of making. — A lease for three years or less may be written or oral, but a lease for more than three years must be by deed, otherwise it is void. Stat. Frauds, s. 1 ; 8 & 9 Vict. c. 10(5, s. .3, p. 127, post. Entry under void. — He who enters and pays, or agrees to pay, rent under a void lease, is tenant fioin year to year upon such terms of the void lease as are consistent with a yearly tenancy. Doe V. Bell, 2 Sm. L. C. 96, and p. 221, post. Custom of country. — The custom of the country is incorporated in every lease unless expressly excluded. Wigglesworth ?'. Dallison, 1 Sm. L. C. 598, and p. 753, post. Discrepancy of lease and counterpart. — The ordinary rule is, that where the lease and the counterpart differ, the lease j^revails, but this rule does not apply where there is an evident mistake in the lease. Burchell v. Clark, L. R., 2 C. P. D. 88, and p. 129, post. Implied Contracts of Landlord. Quiet enjoyment. — The landlord impliedly contracts with the tenant to give him possession, and guarantees the tenant against eviction by any person having a title paramount to that of the landlord, and against the disturbance which would be occasioned by some person enforcing a charge which the landlord ought to have satisfied. See Coe v. Clay, 5 Bing. 440 ; Bandy v. Cartwright, 8 Ex. 913, and p. 674, post. Fitness of premises. — There is an implied contract by the landlord of a furnished house that it is tit for occupation ; but with respect to an unfurnished house (unless it be let at a certain low rent) or land there is no such implied contract. Wilson I'. Finch Hatton, L. R., 2 Ex. D. 336 ; Hart v. Windsor, 12 M. & W. 68, and p. 1, post. Implied Contracts of Tenant. To pay rent, &c. — The tenant impliedly contracts with the landlord to pay rent, not to cojnmit or permit waste, and to give up possession at the end of the tenancy. See 11 Geo. 2, c. 19, s. 14; Morrison i'. Chadwick, 7 C B. 266; Henderson r. Squire, L. R., 4 Q. B. 1. Ixxxiv ABSTEACT OF LEADING PROPOSITIONS. Not to deny title. — A tenant is estopped from alleging that his landlord had no title at the period of the demise; but he is not estopped from alleging that the title of the landlord has expired. Cooke V. Loxley, 5 T. R. 4; Delaney v. Fox, 2 C. B., N. S. 768, and p. 214, post. Express Contracts of Landlord. Quiet enjoyment. — The express contract of a landlord for quiet enjoyment as usually worded is less than the implied one (which it excludes), and does not guarantee the tenant against eviction by title paramount. See Merrill v. Frame, 4 Taunt. 329, and p. 676, post. Repair. — "\^liere a landlord contracts to repair, a notice by the tenant that the premises need repair is an implied condition precedent to the right of action on such contract. i Makin v. Watkinson, L. R., 6 Ex. 25, and p. 595, post. Express Contract of Tenant. To pay rent. — The contract for rent must be performed in all events, and notwithstanding the destruction of the premises by fire or other cause, whether preventible or not. See Belfour v. Weston, 1 T. R. 310, and p. 408, post. Insurance. — The contract to insure is broken by a failure to insure for any time, however short, and the breach of such a contract is a con- tinuing breach. Doe V. Shewin, 3 Camp. 134; Doe v. Gladwin, 6 Q. B. 953. To repair. — The contract to repair must be performed in all events, notwithstanding the destruction of the premises by fire or other cause, whether preventible or not. Bullock V. Dommit, 6 T. R. 650, and p. 592, post. Damages for non-repair. — The damages for non-repair are measured by the injury to the reversion. Mills V. East London Union, L. R., 8 C. P. 79, and p. 600, post. Against assignment. — Tlie contract not to assign without licence is not broken by an assignment by operation of law. Slipper V. Tottenham, &c,. Rail. Co., L. R., 4 Eq. 112, and p. 660, post. DISTRESS FOR RENT. IxxXY Not to do acts without licence. — Where there is a contract not to assign without licence, or not to do any other act without licence of the landlord, such licence, if given, extends only to the single assignment or other act for which the licence is required. 22 & 23 Vict. c. 35, s. 1, and p. 657, post. Rent. "Where payable. — Rent is payable on the demised premises where there is no covenant to pay it ; but in the case of a covenant, it is incum- bent on the tenant to seek out the person to whom it is payable. Haldane r. Johnson, 8 Ex. 689, and p. 397, post. Deductions. — The tenant may deduct from rent any payment which he is obliged to make in order to protect himself from a disti-ess by a ground landlord. See Taylor v. Zamira, 6 Taunt. 524. Apportionment in respect of estate. — Rent is apportioned in re- spect of estate where part of the demised premises changes hands, e.g. where the tenant surrenders or is evicted from part, or where there is a severance of the reversion. In respect of time. — All rents as between the heirs and executors of the landlord are considered as growing due from day to day, and are apportionable in respect of time accordingly, but the tenant may not be resorted to for an apportioned part. Apportionment Act, 1870, p. 405, post. Satisfaction by execution creditor. — As against an execution creditor, the landlord has a claim for 1 year's arrears of rent if the ten- ancy be for a year or more ; and if the tenancy be for less than a year, for the arrears of rent accruing during 4 terms of payment. 8 Ann. c. 14, s. 1 ; 7 & 8 Vict. c. 96, s. 67, p. 490, post. Distress for Rent. A distress for rent, in the absence of express agreement, can be made on the demised premises only, but an agreement that a distress may be made on other premises than those demised is valid. Daniel v. Stepney, L. R., 9 Ex. 185, and p. 412, post. Subject-matters of distress. — A distress for rent may be made by or on behalf of the landlord upon all goods and animals, whether belong- ing to the tenant or not, found upon the demised premises, except that — Ixxxvi ABSTRACT OF LEADING PROPOSITIONS. (1) Fixtures, things in actual use, things in the custody of the law, things perishable, things delivered to the tenant in the way of . his trade, animals of a wild nature, the goods of an ambassador, and gas-meters, and if the Agricultural Holdings Act applies (see Ixviii., infra), hired machinery, and live stock not belonging to the tenant which is on the premises for breeding purposes, are absolutely privileged from distress. See Simpson v. Hartopp, 1 Sm. L. C. 439, and p. 435, post. (2) The goods of a lodger, and railway rolling stock not belonging to the tenant, are absolutely privileged from distress, upon the lodger or owner complying with the terms of the Lodgers' Goods Protection Act, 1871, and Railway Rolling Stock Protection Act, 1872. 34 & 35 Vict. c. 79, p. 445, post ; 35 & 36 Vict. c. 50, p. 447, post. (3) The tools of the tenant's trade, and his sheep and beasts of the plough, and if the Agricultural Holdings Act applies (see Ixviii., infra), live stock not belonging to the tenant taken in to be fed at a fair price to be paid by the owner to the tenant, are condi- tionally privileged from distress — that is, the}' are privileged if there be other sufficient distress upon the premises, and not otherwise. See 51 Hen. 3, stat. 4, and p. 449, post. Fraudulent removal. — If anj' tenant fraudulently, and in order to avoid a distress, remove any goods or chattels from the demised premises, the landlord may, within 30 days, seize and sell them wherever found, except in the hands of a bond fide purchaser for value. 11 Geo. 2, c. 19, s. 1, p. 467, post. Distress after tenancy. — A distress may be made at any time within G months after determination of the tenancy. 8 Ann. c. 14, s. 6, p. 453, post. Amount of rent recoverable. — A distress must be made within 6 years, or if the Agricultural Holdings Act applie.s, 1 year (see Ixviii., infra), after the rent distrained for is due or acknowledged in writing to be due. 3 & 4 Will. 4, c. 27, s. 42, p. 454, post. Liability for bailiff. — The landlord is liable for the irregular but not for the wrongful acts of his bailiff making the distress. Haseler v. Lemoyne, 5 C. B , N. S. 530, and p. 459, post. DISTRESS FOR RENT. Ixxxvii Impounding on premises. — A distress may be impounded on tlic premises where taken ; and when it is so impounded, any person may enter the premises in order to view, appraise and buy it. 11 Geo. 2, c. 19, s. 10, and p. 476, post. Impounding animals. — Persons iiniiounding animals in a pound must supply them with food and water, and may recover the exjiense from the owner. In default of supply by the impounder, any person may supply food and water, and may recover the expense from the owner, or, after 7 days' impounding, may pay himself by sale of the animal, rendering the overplus to the owner. 12 & 13 Vict. c. 92, s. 5; 17 & 18 Vict. c. 60, p. 473, post. Retainer of distress as pledge. — The landlord may, if he pleases, retain the distress as a pledge until the rent be paid, or be proved not to have been due by action of replevin. For 5 days, or if the Agricultural Holdings Act applies, and the tenant so require in writing, 15 days (see Ixviii., infra), after seizure, but no longer, the tenant has an absolute right to treat the distress as a pledge, and proceed to recover it by action of replevin. After the 5 or 15 days, the tenant has a conditional right to replevy, exercisable at any time before an actual sale. See 2 W. & M. scss. 1, c. 5; Jacob v. King, 5 Taunt. 451. Sale of distress. — Unless the tenant replevy, the landlord, at any time after 5 days, or if the Agricultural Holdings Act applies, and the tenant so require in writing, 15 days (see Ixviii., infra), from the seizure, may sell the distress to satisfy the rent and expenses ; but he must first give notice in writing to the tenant, and cause the distress to be appraised. He is not bound to sell. 2 W. & M. sess. 1, c. 5; Philpot v. Lehain, 35 L. T. 855, and p. 479, post. Expenses of distress. — Where the distress is for not more than 20^., a scale of expenses is limited by statute. If the Agricultural Holdings Act applies (see Ixviii., infra), and the disti'ess be for more than 20^., a scale of expenses is limited by that act. In other cases, there is no limit to the expenses, except that they must be reasonable. See 57 Geo. 3, c. 93, s. 1, and p. 482, post. ±(emedies for illegal distress. — In the case of an illegal distress, e.g. where no rent is due, or where goods privileged from distress are seized, the tenant may rescue the goods before impounding, or obtain restitution at any time before sale by replevin, or, at his option, he may sue for damages. If no rent be due, and the distress be sold, he recovers double the value. See 2 W. & M. sess. 1, c. 5, and p. 499, post. Ixxxviii ABSTRACT OF LEADING PROPOSITIONS. Remedies for irregular distress. — In the case of an irregular dis- tress, e.g. where the distress is sold without notice, or not for the best price, the tenant may recover full satisfaction for the special damage sustained, and no more. 11 Geo. 2, c. 19, s. 19 ; Lucas v. Tarleton, 3 H. & N. 116. Remedy for excessive distress. — In the case of an excessive dis- tress, the tenant may recover such damages as a jury may find to be the value of the goods seized, less the rent due. He is entitled to at least nominal damages. See Chandler v. Doulton, 34 L. J., Ex. 89, and p. 524, post. Determinatiox of Tenancy. Modes of determination. — The principal modes in which a tenancy is determined are notice to quit, surrender, and forfeiture. Notice to quit. — A tenancy from year to year is, in the absence of an agreement otherwise, determinable by half a year's notice to quit, .expiring at the end of some current year of the tenancy. If the Agri- cultural Holdings Act applies [see Ixviii., infni], the notice is a year's notice. The notice to quit need not be in writing, but it must be binding on the noticor, and the noticee must have reason to believe it so to be. The notice to quit need not be delivered to the tenant personally. It is sufficient to deliver it to a person on the premises whose duty it would be to deliver it to the tenant. Doe I'. Crick, 5 Esp. 196; Jones v. Phipps, L. R., 3 Q. B. 667; Tan- ham V. Nicholson, L. R., 5 H. L. 561. Option to determine. — If a terminable lease be granted without .saying who is to have the option of determining it, such option is with the tenant, and not with the landlord. But where a lea.se provides that it shall become void upon the lessee breaking any of the covenants contained therein, it is at the option of the lessor, not of the lessee, whether the lease shall or shall not be determined. Dann v. Spurrier, 3 B. & P. 399 ; Doe ?'. Bancks, 4 B. & A. 401. Surrender. — Rveiy express surrender nnist be by writing, and every express surrender of a more than 3 years' term nmst be by deed. See 8 & 9 Vict. c. lOG, s. 3, p. 296, post. A surrender may be implied from anything wliich amounts to an agreement by the tenant to abandon and by the landlord to resume the DETERMINATION OF TENANCY. Ixxxix premises, e.g. by the delivery of keys, by the entering into a new contract of tenancy, or by the landlord accepting a new tenant. See Phene' v. Popplewell, 12 C. B., N. S. 3^4, p. Z02, post. Forfeiture. — A forfeiture is incurred ipso facto by breach of a condi- tion in a lease, but not by a breach of covenant, unless the lease contain a proviso for re-entry applicable to the breach. If the landlord has a right to re-enter for non-payment of rent (but not otherwise), he may re-enter without formal demand of rent, on proving that half a year's rent is in arrear, and that no sufficient distress be found on the premises. See C. L. P. Act, 1852, s. 210. Waiver of forfeiture. — If the landlord at anytime, after notice of breach of covenant committed, acknowledges the continuance of the tenancy, e.g. if he distrain or sue for rent due after the forfeiture, he waives the forfeiture and loses his right to re-enter. See Ward v. Day, 5 B. & S. 364, and p. 323, post. Continuing breach. — Some covenants, e.g. the covenant to insure, are of such a nature that a breach of them is continuing, so that the effect of a waiver is practically nil. See Doe v. Gladwin, 6 Q. B. 953. Restriction of waiver. — A waiver does not extend to any breach of covenant other than that to which it specially relates. 23 & 24 Vict. c. 38, s. 6, p. 326, post. Relief against forfeiture. — Relief against forfeiture for non-payment of rent can be obtained at any time within 6 months after execution executed upon payment of all arrears of rent and full costs. . See C. L. P. Act, 1852, s. 210, p. 331, post. Relief against forfeiture for any breach of covenant or condition ex- cept the covenant against assignment or subletting without licence, or, in a mining lease, to permit inspection of books, or for forfeiture in case of bankruptcy, may be obtained in the High Court by the tenant, either in the landlord's action, if any, to eject him, or in a separate action brought by liimself. Conveyancing Act, 1881, s. 14, p. 328. XC ABSTRACT OF LEADING PROPOSITIONS. Rights of Parties ox Determination of Tenancy. Delivery of possession. — The tenant must deliver up complete pos- session of the premises, and is answerable for the holding over of a sub- tenant. Encroachments on a waste are for the benefit of the landlord. Henderson v. Squire, L. R., 4 Q. B. 170, and p. 1^0, post ; Wliitmore V. Humphries, L. R., 7 C. P. 1, and p. 742, post. Rightful holding over. — If a tenant for years hold over, and pays or agrees to pay rent, he may become a tenant from year to year upon such terms of his lease as are consistent with a yearly tenancy, and it is a question for the jury whether he becomes such a tenant or not. See Hyatt v. Griffiths, 17 Q. B. 505, and p. 744, post. "Wrongful holding over. — If a tenant for years wilfully hold over after written demand of possession, tlie landlord may sue him for damages at the rate of double the yearly value of the premises held over so long as held over. 4 Geo. 2, c. 28, s. 1, and p. 745, post. Holding over after own notice to quit. — If any tenant hold over after his own notice to quit, he becomes bound to pay double rent so long as lie holds over, recoverable in the same manner as the single rent. 11 Geo. 2, c. 19, s. 18, p. 748, post. Partial occupation. — Where an existing custom for the tenant of a farm to retain possession after the end of his tenancy is proved as a fact, such tenant has a right to retain possession accordingly, unless he hold under a contract of tenancy inconsistent with the custom. Compensation for improvements. — Wliere an existing custom for the outgoing tenant of a farm to be paid compensation for improvements is proved as a fact, such tenant has a right to compensation in accordance with such custom unless he hold under a contract of tenancy inconsistent therewith. Valuations between an outgoing and incoming tenant are a matter of convenience only, and if there be no incoming tenant, the land- lord is liable to the outgoing tenant under tlie custom. See Favicll v. Gaskoin, 7 Ex. 273, and p. 753, post. Application of Agricultural Holding.s Act, 1883. —The Agricul- tural Holdings Act, 1H.S:5, aj)pli('s to all holdings, li()W(!ver small, either wholly agricultural or wholly pastoral, or partly agricultural and partly pastoral, or wholly or partly cultivated as m.arket gardens, held under a landlord for a term of years, or for lives, or for lives and years, or from year to year by a tenant holding no employment under such landlord. Agricultural Holdings Act, 1883, ss. 51 and 01. EIGHTS OF PARTIES AT END OF TENANCY. XCl In cases where the Agricultural Holdings Act, 1883, applies, the tenant, on quitting his holding on the determination of his tenancy, is entitled to compensation for boning, chalking, clay-burning, claying, liming, and marling, and for the application of purchased manure, and consumption on the holding by cattle, sheep, and pigs, of cake or other feeding stuffs not produced on the holding. He is also entitled to compensation for buildings and other permanent improvements if executed with the written consent of his landlord, and for drainage if executed after notice to a landlord refusing to execute it himself. Agricultural Holdings Act, 188:3, p. 774. Prolongation of term. — The tenant of a farm at rack rent, in any case where the tenancy determines by the cesser of the estate of a land- lord entitled for his life, or for other uncertain interest, may continue to hold the farm till the end of the then current year of the tenancy. 14 & 15 Vict. c. 25, s. 1, and p. 760, post. Fixtures. — The primary rule is that all things attached by the tenant to the demised premises become the property of the landlord, and are not removable by the tenant at any time or under any circumstances ; but the exceptions to this rule abrogate it in respect to ti'ade fixtures, domestic fixtures, and agricultural fixtures in a varying degree. Trade fixtures. — Domestic fixtures. — Trade fixtures, e.r/. engines for working collieries, and conservatories, and domestic fixtures, e.g. ornamental chinmey-pieces, but not conservatories, may be removed by the tenant during the tenancy, provided that the removal can be effected without doing substantial injury to the freehold. See Lawton v. Lavvton, 3 Atk. 13, and p. 626, post; Buckland v. Butterfield, 2 B. & B. 54, and p. 629, pos^ Agricultural fixtures. — Agricultural fixtures erected by the tenant before January 1st, 1884, with the written consent of the landlord be- come the property of the tenant, and removable by the tenant if the tenant shall have given one month's notice in writing of his intention to remove, and the landlord shall not have exercised an option to purchase them. 14 & 15 Vict. c. 25, s. 3, and p. 632, post. If the Agricultural Holdings Act applies (see Ixviii., supra), any engine, machinery, fencing, or building (except a building for which compensa- tion is payable), erected by the tenant on or after the 1st January, 1884, becomes the property of the tenant and removable by him before or within a reasonable time after the termination of his tenancy, subject to the tenant having discharged all his obligations to the landlord, doing no avoidable damage, repairing all unavoidable damage, giving notice XCii ABSTRACT OF LEADING PROPOSITIONS. of intention to remove, and subject also to the landlord's option of pui-chase. Agricultural Holdings Act, 1883, s. 34, and p. 634, post. Removal of fixtures. — The right to remove non-agricultural fixtures can be exercised only during the term or during such period as the tenant holds over with the consent of the landlord. See Lyde v. Russell, 1 B. & Ad. 334, and p. 643, post. Assignment. Mode of assignment. — Every contract for assignment must be in writing, and every assignment must be by deed. Stat. Frauds, s. 4 ; 8 & 9 Vict. c. 106. What covenants pass to assignee. — The assignee may sue or be sued upon all covenants which concern the premises demised, e.g. on a covenant to repair, whether the assignor may have covenanted for his assigns or not. See Spencer's case, 1 Sm. L. C. CO, and p. lQ2,post. Assignment of Reversion. Notice to tenant. — Before suing for rent, the assignee of the rever- sion must give notice to the tenant of the assignment to him, but he may avail himself of a condition for re-entry on breach of covenants other than the covenant to pay rent without any such notice. 4 Ann. c. 16, s. 10 ; Scaltock v. Harston, L. R., 1 C. P. Div. 106. Both the assignee of part of the reversion in the premises and the assignee of the reversion of part of the premises may sue and be sued on the covenants in respect of the part assigned or apportioned to him. See Stevenson v. Lambard, 2 East, 375; 22 & 23 Vict. c. 35, s. 3. Assignment of Term. Right to assign. — Every tenant, except a tenant by sufferance, may assign or sublet, unless expressly restrained by the contract of tenancy from doing so. See Church t;. Brown, 15 Ves. 258. Sublease. — A subl(!ase for the whole term, or for a period beyond it, is an assignment, and puts the; subU',nant in the place of the tenant. See Beardman v. Wilson, L. R., 4 C. P. 57, and p. 258, post. ASSIGNMENT OF TERM. XClll Liability of lessee and assignee. — A lessee assigning remains liable on his covenants, but an assignee may assign over to a pauper. By such assignment the assignee frees himself from' all liability to the lessor, but his liability to the assignor continues. See Thursby v. Plant, 1 Wms. Saund. 241 ; Taylor v. Shum, 1 B. & P. 21. Bankruptcy. — Upon the bankruptcy of the tenant the tenant's estate in the premises is assigned by law to his trustee in bankruptcy, who may, within three months after his appointment, disclaim that estate, with leave of the Bankruptcy Court, if the tenant has sublet or assigned, or the prop- erty leased is let for, and is worth, 20/. a year or more, or the tenant's estate is not being summarily administered, or if the landlord, having notice of the trustee's intention to disclaim, requires the matter to be brought before the Court, and in other cases without any such leave. If any person interested requires the trustee to decide whether he will disclaim or not, and he does not decide within 28 days, the option to dis- claim is gone, and the tenant's estate is absolutely vested in him with its burdens and benefits. If no disclaimer is executed, the trustee is personally liable on the covenants of the lease, with a right to be indemnified out of the assets of the bankrupt's estate. The disclaimer determines the rights and liabilities of the tenant, and of his estate in the lease, as from the date of the disclaimer, and dis- chaj'ges the trustee from personal liability as from the date of his appoint- ment, but does not affect the rights or liabilities of any other person. Bankruptcy Act, 1883, s. 55; Bankruptcy Rule, 132, and p. 211, post. The covenant not to assign without licence is not broken by an assign- ment by bankruptcy, but a proviso for re-entry on the tenant's bank- ruptcy is good. Doe V. Bevan, 3 M. & S. 353; Roe v. Galliers, 2 T. R. 133. Death. — The tenant's estate is personal property, and passes to his personal representatives. In Scotland the tenant's interest passes to his heirs. An executor cannot waive a term, although it be worth nothing ; he must either renounce the executorship in toto or not at all. Rubery v. Stevens, 4 B. & Ad. 244. Personal liability of executor. — Personal representatives are pei-- sonally liable for rent only up to the value of the premises. Personal representatives having satisfied all existing liabilities on a lease, and having set apart a sufficient sum to answer any future liqui- dated liability, may assign the lease to a purchaser and distribute assets. XCIV ABSTRACT OF LEADING PROPOSITIONS. Thereupon the personal liability of tlie personal representatives is extin- guished, but the landlord may follow the assets in the hands of the beneficiaries. 22 & 23 Vict. c. 35, s. 27, p. 290, post. In cases to which the above two paragraphs are not applicable, the personal representatives of a tenant are personally liable upon his cove- nants. See Tremeere v. Morrison, 1 B. N. C. 8G, p. 291, post. Recovery of Premises by Landlord. Notice before proceeding for forfeiture. — A right of re-entry for breach of covenant or condition (except the covenant against alienation, or in a mining lease to allow inspection of books, and tlie condition for forfeiture on bankruptcy, or taking the lessee's interest in execution) is not enforceable unless the landlord has served on the lessee a notice requiring him to remedy the breach complained of, and the lessee has failed to remedy the bi-each (if remediable), and also to satisfy the landlord by some pecuniary compensation. Conveyancing Act, 1881, s. 14, p. 329, post. Summary judgment against tenant holding over. — Tf the tenant's term has expired or been duly determined by a notice to quit, the land- lord may, in an action for the recovery of the premises, obtain final judgment for such recovery from a judge in chambers on affidavit by himself or any other pci'son who can swear positively to tlie facts, verify- ing the cause of action and swearing that there is no defence thereto. II. S. C, 1883, Order XIV. p. 795. Mesne profits. — Tlie landlord recovers by the verdict of the jury mesne i)r()fits from the date of the determination of tlie tenant's interest down to the date of the verdict. C. L. P. Act, s. 214, p. 791, poM. Action -where premises held over. — Tf neither the value nor tlie rent of the premises exceed .'•O/. a y<'ar, and tlie tenant refu.se to deliver up po.s.session at the end of the tenancy, the landlord may sue the tenant or person holding through him in th(; County Court of the district in ■which the premises lie; and the judgt; of such County Court may, on proof of the landlord's title and other matters, order possession to be given up to tlie landlord. County Court Act, 1850, s. 50, p. 811, post. RECOVERY OF PREMISES BY LANDLORD. XCV Action ■where rent in arrear. — Tf neither the value nor the rent of the preinises exceed 50/. ;i year, and the rent be in arrear for one half- year, and the landlord be entitled to re-enter for non-payment of rent, the landlord of any premises may, without any formal demand for re- entry, sue the tenant in the County Court of tlie district where the premises lie. Thereupon, unless the tenant in 5 days pay the rent, on proof of no sufficient distress being found on the premises and other matters, the judge of such County Court will order possession to be given up to the landlord in not less than 4 weeks, unless the rent and costs be sooner paid. County Court Act, 185G, s. 52, p. 816, post. Action in county court in ordinary cases. — If neither the value nor the rent of the premises exceed 20/. a year, the landlord may, upon any Cause of forfeiture whatsoever, eject the tenant by action brought in the County Court of the district where the premises lie. But if the causes of action be either non-payment of rent or holding over, the land- lord must follow the special procedure provided for such causes of action. County Court Act, 1867, s. 11, p. 823. Recovery before justices of premises held over. — If the tenant occupy at will or for a term of not more than 7 years, or at a rent of not more than 20/. a year, and refuse to quit at the end of the tenancy, the landlord may summon the temint before two justices of the peace, who, upon proof of the landlord's claim and other matters, may issue a war- rant to the constables of the district commanding them to give posses- sion within a period not less than 21 nor more than 30 days from the date of the warrant. But the execution of the warrant may be stayed if the tenant will become bound with sureties to sue the landlord for ti'espass. I & 2 Vict. c. 74, p. 829, post. Recovery before justices of deserted premises. — If a tenant at rack rent, or at a rent of thi'ee-fourths of the yearly value of the demised premises, be in arrear for one half-year's rent, and desert the demised premises, and leave no sufficient distress thereon, two or more justices of the peace may view the premises at the request of the landlord, and affix thereon a notice stating what day, at the distance of 14 days at least, they will return to take a second view. If upon such second view the tenant do not pay the rent, or if there be no sufficient distress upon the premises, the justices may put the landlord into possession, and the contract of tenancy becomes void. II Geo. 2, c. 19, 8. 16; 57 Geo. 3, c. 52, and p. 835, post. XC^a ABSTRACT OF LEADING PROPOSITIONS. Criminal Law. Letting infected house. — If a person let any house or room in which any person has been suffering from an infectious disorder, without hav- ing such house or room disinfected, he is liable to a penalty of 20/., and if he falsely answer any question of an intending tenant as to an infected person being, or having been within 6 months, on the pi'emises, he is liable to a penalty of 20/., or a month's imprisonment with hard labour. Public Health Act, 1875, ss. 128, 129, and p. 841, post. Larceny by tenant. — Any tenant stealing any fixture is guilty of felony, and is liable to two years' imprisonment, with whipping, if a male; and, if the value of the fixture exceed 5/., to penal servitude for 7 years. 24 & 25 Vict. c. 96, s. 74, and p. 842, post. Demolition by tenant. — Any tenant unlawfully demolishing any building demised to him, or severing any fixture from the freehold, is guilty of a misdemeanour. Z^ & 25 Vict. c. 97, s. 13, and p. 843, post. THE LAW LAI^DLORD AND TENATs^T. CHAPTER I. BY WHOM TERMS MAY BE GRANTED. SECT. PAGE 1. Generally 1 2. Tenant in Fee 2 8. Tenant in Tail 3 4. Tenant for own Life ... 4 5. Tenant for the Ijife of another 9 ti. Tenant by the Curtesy, &c. . 10 7. Joint Tenants and Tenants in Common 10 8. Coparceners 12 9. Tenant for Years .... 12 10. Tenant for less than Years . 13 n. The Crown lo 12. Corporations generally . . 15 13. Municipal Corporations . . 16 14. Ecclesiastical Corporations . 18 (a) Enabling and Disabling Acts 18 (b) Acts of Queen Victoria . 23 15. Universities and Colleges . . 30 16. Parish Officers and Allotment Trustees 31 17. Trustees of Settled Estates . 32 SECT. PAOB 18. Trustees of Charities ... 35 19. Infants 38 20. Guardians 39 21. Trustees for Infants ... 41 22. Married Women 42 23. Lunatics and Committees . . 45 24. Persons under Duress, or In- toxicated 46 25. Convicts 47 26. Trustees of Bankrupts ... 48 27. Executors and Administra- tors 48 28. Mortgagor and Mortgagee . 50 (a) Generally 50 (b) Under Conveyancing Act 56 29. Tenants by Elegit, etc. . . 58 30. Receivers 58 31. Lords of Manors and Copy- holders 59 32. Agents and Bailiffs .... 62 (a) Agent 62 (b) Bailiffs 67 Sect. 1. — G-enerally. All persons who are not under any legal disability may g-rant leases for such terms as are not inconsistent with the nature and quantity of the estates which they have : but if a lease be made for a longer term than the estate of the lessor will warrant, it will generally operate as a valid de- mise during so much of the term as he has power to grant. *2 BY WHOM TERMS GRANTED. [Cu. I. S. 1. Thus, if a tenant for life demise by deed for a long term (say ninety-nine years), it will operate as a valid lease during his life (a). [*2] * Leases by estoppel. — If a person, having no estate whatever in the land, demise it by deed to another, who enters and takes possession under or by virtue of such demise, the law will not allow the latter to deny the title of the person from whom he has accepted the demise, and a tenanc}^ b}^ estoppel and also a reversion in fee by estoppel will be thereby created (6) ; ^ but of course such demise will be inoperative as against the real owner, except so far as it may increase the difficulty of proving his title and right to the possession of the land. Person having mere right of entry may demise. — At one time it was necessary that the party granting the lease, who is called the lessor, should be in possession of the lands in- tended to be leased or in receipt of the rents and profits (a) Bragg v. Wiseman, Brownlow & W. 224 ; Cuthbertson v. Irving, 4 & G. 22. H. & N. 742 ; 6 Id. 135. (6) Sturgeon v. Wingfield, 15 M. 1 Tenancies by estoppel. — See Stott v. Rutherford, 92 U. S. 107. The estoppel is mutual. Tlie lessee cannot dispute the lessor's title, neither can the lessor, if he subsequently acquire one, eject the lessee. If a lessor bring an action of ejectment against the lessee, and prove the existence of the rela- tion of landlord and tenant, he need not prove his title, for he has a title by estoppel and a reversion against the tenant. He must, however, prove the termination of the tenancy, as by notice to quit, for during the tenancy the tenant has a title to the possession by estoppel against his lessor. Doe d. Ileatlicote v. Hughes, 3 P. & B. (N. B.) 308, 373. If a lessor demise without liaving any title and subsequently acquire one, it will enure by estoppel to the benefit of the lessee. McKenzie v. Lexington, 4 Dana (Ky.) 129. Hence a grantee under deed from one having no title may sue in tres- pass one claiming, under his grantor, even though the latter have sulisequently acquired a title. Phelps v. Blount, 2 Dev. L. (N. C.) 177. Even the title of the lessee of a tenant at will is good by estoppel against his lessor or parties claiming under liim. Hilbourn v. Fogg, 99 Mass. 11. A lessee of a tenant at will, if lie occupy, is estopped to deny his lessor's title. Cook v. Cook, 28 Ala. 000. But such a lessee, if he have not occupied, is not estopped. Wright r. Graves, 80 Ala. 410. Termination of the tenancy removes the estoppel. Douglass I'. Geiler, 32 Kans. 490; Turner v. Ferguson, 30 Tex. 605 ; Heath r. Williams, 25 Me. 200 ; Rogers v. Joyce, 4 Id. 93. It is only the existence of the lessor's title, or that he had one at the commencement of the tenancy, which the lessee is estopped to deny. He is not estopped to deny that the lessor's title has terminated. Lamson v. Clarkson, 113 Mass. 348; O'Brien r. Ball, 119 Id. 28. 2 Ch. I. S. 1.] GENERALLY. *2 thereof; for if he had a mere right of entry, he could not grant it to another (c).! But by 8 & 9 Vict. c. 106, s. 6, not only contingent, executory and future interests, and pos- sibilities coupled with an interest, but also " a right of entry whether immediate or future, and whether vested or contin- gent, into or upon any tenements or hereditaments in Eng- land of any tenure, may be disposed of by deed." This enactment does not relate to a right to re-possess or re-enter for a condition broken, but only to an original right where there has been a disseisin, or where the party has a right to recover lands, and his right of entry and nothing but that remains (cZ). Lessor's title. — A lease is, both in contemplation of law and in fact, a conveyance of the demised premises for the term therein mentioned, subject to the rent, covenants, and conditions.^ It usually contains a very qualified and re- stricted covenant for quiet enjoyment, such as any person may safely enter into who never had title to the demised premises (e). By the Vendor and Purchaser Act, 1874 (37 (c) 32 Hen. 8, c. 9, ss. 2, 4 ; Doe d. 135; Bennett v. Herring, 3 C. B., N. S. Williams v. Evans, 1 C. B. 717. 370. {(1) Hunt V. Bishop, 8 Exch. 675, (e) See post, Chap. XVII., sect. 680; 22 L. J., Ex. 337; Hunt v. 8(6). Remnant, 9 Exch. 635 ; 23 L. J., Ex. i Right of entry, -without possession. — A lessee, before taking posses- sion, can give a valid sub-lease. Chung Yow v. Hop Chong, 11 Or. 220. If lessor grant lease to one lessee to commence in futuro, and afterward grant lease of same premises to third party, covering the same term, to commence in prcBsenti, and the latter enter and occupy the premises, the first lessee, when the time comes for commencement of his term, may eject the second lessee or sue the lessor for damages. Trull v. Granger, 8 N. Y. 115; Whitney v. Allaire, 1 Id. 305, 311 {per Gardiner, J.). Leases in futuro. — Under leases to commence in futuro, lessee's interest in the term vests presently, but his right to tlie possession vests in futuro. The right of possession under a lease which does not stipulate otherwise commences immediately. Witthaus v. Starin, 12 Daly (N. Y. Com. Pleas) 226. Delivery. — A lease does not take effect until delivery, and delivery con- trols the date. Same. 2 Nature of a lease. —There is a material distinction between the common and civil law theories as to the nature of a lease. " The common law regards such a lease " (a lease for years) " as the grant of an estate. . . . The civil law, on the other hand, regards a lease for years as a mere transfer of the use and enjoyment of the property," &c. Gray, J., in Viterbo v. Friedlander, 120 U. S. 707, 712, 713. *3 BY WHOM TERMS GRANTED. [Ch. I. S. 2. & 38 Vict. c. 78)', s. 2, it is enacted that " under a contract to grant or assign a term of 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 to the freehold ; " ^ and by the Conveyancing and Law of Prop- erty Act, 1881 (44 & 45 Vict. c. 41), ss. 3 and 13, there are similar enactments as to the title to a leaseJiold reversion ; but all these enactments are " subject to any stipulation to the contrary in the contract." Sect. 2. — By Tenants in Fee? Tenants in fee may make leases without limit or [*3] restraint, for any * number of lives or years, and upon such terms and conditions as they may tliink 1 Giving lease "without title ; result of it. — The words " demise," " lease," " let," contain implied covenant for quiet enjoyment. Stott v. Rutherford, 92 U. S. 107; Cunningham v. Pattee, 99 ]\Iass. 248, 251 ; Grannis V. Delvin, 8 Cow. (N. Y.) 36. Such covenant seems to be implied in every lease (of less than a freehold) containing words of demise. Match v. Patchin, 42 N. Y. 167 ; Mayor of N. Y. v. Mabie, 3 Kern. (N. Y.) 160, &c. The result of giving a lease without title would be that, if les.«cc should be evicted by one liaving the title, the lessee could recover damages for breach of the covenant of quiet enjoyment from his lessor. Match v. I'atciiin, supra ; or he could set up the eviction as a defence to a suit for rent. Fitchburg, &c., V. Melven, 15 Mass. 268; Smith v. Shepard, 15 Pick. (Mass.) 147. '^ Fee simple ; definition. — Tenancy in fee simple, or (as it is sometimes termed) tenancy in fee, is an estate to one and Jiis heirs forever witliout con- ditions. It is the highest estate known to the law. 2 Blacks. Com. sees. 104, 105; 4 Kent's Com. (l.'3th ed.) sec. 5. All fees, including various determi- nable ones (base, conditional, and tail), innii endure forever. 2 Blacks. Com. 109, 110; 4 Kent's Com. 4. But a fee simnle or fee (simply), which is not determinable, is the only one that is unqualified (except by the general pro- visions of the law). The word "fee" is of feudal origin, signifying an estate held under a service; 2 Blacks. Com. sees. 104, 105. In this country tenures are essen- tially allodial. 4 Kent's Com. (l.'Jth ed.) sec. 487; 2 Cooley's Blackstone, (•"'(I ed.) sec. 102, note. That is, lands are owned as tliey were prior to the feu) Bac. Abr. tit. Leases (I.); Ilaym. 779 ; Andrew v. Pearce, 1 New Adams v. Gibney, 6 Bing. G56. 11. 158. (v) See post, Ciiap. XX. sect. 3. » Hoa^land v. Criim, 113 111. .305, .309, 370 {per Scott, J.) ; King v. Foscue, 91 N. C. 116, 118 {]>er Merrimon, J.) ; Enriprbt v. ()'Lo) 2 Will. 4, e. 1, s. 21. cc. 1, 112 ; 3 & 4 Will. 4, c. 1 ; 2 & 3 (7) Goold ;•. Great Western Deep Vict. c. 80 ; 3 & 4 Vict. c. 87 ; 4 & Coal Co., 2 De Gex, J. & S. 600 ; the 5 Vict. c. 40 ; 7 & 8 Vict. c. 1 ; 8 & 9 other Dean Forest Acts are 20 Car. Vict. c. 99; 14 & 15 Vict. c. 42 (and 2, c. 8; 1 & 2 Will. 4, c. 12 ; 6 & 7 the numerous acts mentioned in the Will. 4, s. 3 ; 1 & 2 Vict. c. 42 ; 5 & 6 schedule to that act) ; 15 & 16 Vict. Vict. cc. 48, 65; 29 & 30 Vict. c. 62, c. 62; 29 & 30 Vict. c. 62. ss. 4, 5 ; 29 & 30 Vict. c. 70. 23 *l0 BY WHOM TERMS GIIA^:TED. [Ch. I. S. 12. Duchy of Cornwall. — Lands belonging to the Ducliy [*15] of Cornwall may be demised pursuant * to the Duchy of Cornwall Management Acts, 1863 and 1868 (r). When such lands happen to be vested in the crown they may be demised pursuant to 1 & 2 Will. 4, c. 5. By Admiralty or other board. — When the Admiralty or any other government board are authorized to acquire land for public purposes, they are generall}^ empowered to sell, exchange, or demhe such parts thereof as in their opinion will not be required for the public service. In any such case the provisions of the particular statute must of course be strictly complied with (.s). Sect. 12. — By Corporations generally. Corporations are either ecclesiastical or lay, the latter being divided into eleemosynary and civil. The universities of Oxford and Cambridge are regarded as civil corpora- tions (€). Lease by deed. — Corporations cannot make any disposi- tion of their property otherwise than by deed sealed with their common seal ; ^ thus they cannot, without deed, make (r) 26 & 27 Vict. c. 49 ; SI & 32 Vict. c. 117; U & 25 Vict. c. 41, ss. Vict. c. 35. 14, 15, 16. (s) 5 & Vict. c. 94, s. 12 ; 18 & 19 (0 Tarkinson's case, Cartli. 03 ; R. V. V.-C. of Cambridge, 3 Burr. 1G56. 1 Can corporations convey property w^ithout using the corporation seal? — In America it is held that they can. Their seal, however, is necessary in conveyances of real estate and in specialty contracts, Sherman v. Fitch, 98 Mass. 59, 63, 64; Brinley v. Mann, 2 Cush. (Mass.) 337,340 (/;e;- Metcalf, J.); Bates r. Boston & N. Y. Cent. 11. K. Co., 10 Allen (Mass.) 251, though it has been held that if the corporation has not adopted a common seal, any seal may be used instead. .Mill l):im );. Hovey, 21 Pick. (Mass.) 417. Justice Story's opinion. — Justice Story (in Fleckner v. U. S. Bank, 8 Wiieat. .'538, 357), in speaking of the former doctrine that corporations can only act under a common seal, said: "Whatever may be the original cor- rectness of this doctrine as applied to corjjorations existing by the common law, in respect even to which it has certainly been broken in upon in modern times, it has no apjilication to cor|)<)rations created by statute whose charters contemplate tlic business of the corporation to be transacted exclusively by a special body or board of directors. And the acts of such body or board evi- denced by a written vote are as completely binding upon the corjmration and 24 Ch. I. S. 12.] LEASE BY CORPORATIONS GENERALLY. *lo a lease for years (/*).^ But one who enters upon, occupies and pays rent for corporate property under a lease for years which is not sealed, becomes a tenant from year to year on (a) 11. V. Chipping-Norton, 5 East, E. 284; R. v. North Duffield, 3 M. & 239, 2-42 ; Bird v. Higginson, G A. & S. 2-47 ; 1 Kyd on Corp. 203. as complete authority to their agents as the most solemn acts done under tlie corporate seal." The modern American theory. — Corporations by the modern Ameri- can theory derive their powers, express or implied from the act of incorporation and must exercise them in the manner therein prescribed. Head v- Prov. Ins. Co., 2 Cranch, 127, 129. If a seal is thereby required it must be affixed, but if not required it is not necessary, except as required in cases of individuals. Fleckner i\ U. S. Bank, 8 Wheat. 338 ; Bank of Columbia v. Patterson's Adm'r, 7 Cranch, 299 ; Bank of U. S. v. Dandridge, 12 Wheat. 64, (J8 (per Story, J.); Danforth r. Schoharie, 12 Johns. (N. Y), 227,230; Baptist Church V. Mulford, 8 N. J. L. 182; Crawford v. Longstreet, 43 N. J. L. 325; Peter- borough R. R. Co. I'. Nashua & L. R. R. Co., 59 N. H. 385 ; Randall v. Van Vechten, 19 Johns. (N. Y.) GO ; Canal Bridge v. Gordon, 1 Pick. 297, 304 ; Hayden v. Madison, 7 Greenl. (Me.) 76; Abbot v. Hermon, 7 Id. 118, 121; Dunn V. Rector, 14 Johns. (N. Y.) 118; Mott v. Hicks, 1 Cow. (N. Y.) 513; Overseers of North Whitehall v. Overseers of South Whitehall, 3 S. & R. (Pa.) 117 ; Garvey v. Colcock, 1 Nott & M'Cord (S. C.) 231 ; Hayden v. Middlesex Turnpike Co., 10 Mass. 397, 403 (per Sewall, J.). Angell & Ames on Corpo- rations (11th ed.) sec. 102; 1 Taylor's Private Corporations (2d ed.) 127. Chief Justice Marshall's opinion. — Said Marshall, C. J., in Head v. Prov. Ins. Co., 2 Cranch, 127, 169: " The act of incorporation is to them an enabling act; it gives them all the power they possess; it enables them to contract, and when it prescribes a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated." Thompson's, Ch. J., Opinion. — Thompson, Ch. J., in Danforth v. Scho- harie Turnpike Co., 12 Johns. (N. Y.) 227, 230, in speaking of the doctrine that a corporation could not act except under the corporate seal, said : " Such would seem to be the doctrine of some old adjudged cases," but "the law of the present day seems to be otherwise settled." Knapp's, J., Opinion. — Knapp, J., in Crawford v. Longstreet, 43 N. J. L. 325, 329, speaks of it as " the ancient rule of the common law," and says that it was opposed to the " demands of practical business necessity," and has been " practically abrogated in this country." Change from the old theory. — In Bank of Columbia v. Patterson's Adm'rs, 7 Cranch, 299, 305, 306, 307, Justice Story sketches the gradual rise of the law from this ancient doctrine to the modern theory " that whenever a corporation is acting within the scope" of its powers "all parol contracts made by its authorized agents are express promises of the cor])orati()n." 1 Corporation seal ; is it necessary to validity of lease for years ? — Corporations may ta/ce leases for years not under seal, Crawford v. Long- street, 43 N. J. L. 325; Peterborough R. R. Co. v. Nashua & L. R. R. Co., 59 N. H. 385, and there is no doubt (see previous note) may also give them, the only limitations being that the leases must not be tdtra vires (either as to the corporation or its agents) or within the statute of frauds, and they must cou- form to the requirements of the charter. 25 *15 BY WHOM TERMS GRANTED. [Ch. I. S. 12. such terms of the lease as are applicable to a 3'early ten- ancy (.r). Name of the corporation. — A corporation cannot either take or grant but by its proper name of incorporation ; ^ (x) Ecclesiastical Commissioners v. Merral, L. R., 4 Ex. 162 ; 38 L. J. Ex. 93. ^Corporation name. — The statement of the text is much too broad. Statutory requirements must of course be complied with. In general it may be said the name of the corporation is not essential in gifts and devises, if the corporation is so described that it can be identified. First Parish in Sutton V. Cole, 3 Pick. 232 ; N. Y. Inst, for Blind v. How's Ex'rs., 10 N. Y. 84, 88. " It is well settled that a devise or bequest to a corporation need not state its corporate name. It is sufficient that the devisee or legatee is so de- fined as to be distinguished," per Denio, J. Neither is the name essential (f/eneralli/) in contracts ; as, for example, cashiers' checks, signed by cashier, individually bind tlie bank if issued in its business. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 "Wheat. 320 (parol evidence being admitted to prove them the checks of tlie bank). Drafts accepted by corporation in name of an individual bind it. Conro v. Port Henry Iron Co., 12 Barb. (N. Y. Supreme Ct.) 27, 53. A promissory note running to a corporation under a wrong name is collectible, Medway Cotton Manuf. Co. i\ Adams, 10 Mass. 300 ? or under a name varying, from true name, Newport Mechanics' Man. Co.- r. Starbird, 10 N. H. 123 ; and a contract varying in name materially from true name is enforcible. President &c. of Berks., &c.. Road v. Myers, G S. & R. (Pa.) 12, 17 (the identity here was said by Gibson, J., to be a question for the jury). A lease for years taken by a committee of a corporation duly authorized in their own names is the corporation's lease. Carroll v. St. John's Society, 125 Mass. 505. In Conro v. Port Henry Iron Co., supra (12 Barb. 27, 53), Wiilard, P. J., said : " To create a liability in the Port Henry Iron Company ... it is by no means essential that the corporate name should be used in the drafts." And it is held that corporations are liable upon contracts made by tlieir duly au- thorized agents in their own names in the business of the company. Hank of Columbia v. Patterson, 7 Cranch, 299; Randall v. Van Vechten, 19 Johns. (N. Y.) 00; Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. .320 ; Conro v. Port Henry Iron Co., 12 Barb. 27, 53. Corporations (in general) can only sue and be sued under the name given them in the act of incorpora- tion, Mauney v. Motz, 4 Ired. Eq. (N. C.) 195, 197, because their power to sue, being derived from their charters, must be exercised in the mode therein pre- scribed. Tiie " corporate name can be changed only by the same power by whicli the corporate body was created." Angell & Ames on Corp. (11th ed.) sec. 102. In its ordinary business transactions a corporation acts through its board of directors, wiio of course do not need any power of attorney, sealed or otherwise. Burrill v. Nahant Bank, 2 Met. 103; Taylor on Priv. Corp. (2d ed.) 180. Whenever any special agent or attorney is required, he is ap- pointed by vote of the corporators or directors, and the corporation seal is not essential to the validity of his ajipointment except where it would be necessary in case of individuals. Justice Story says, tiiat " It is now finally established, both in iMigland and America, that a corjxjration may he bound by a promise of its duly authorized agent, although such authority be only by virtue of a corporate vote unaccompanied by tiie corporate seal." Bank of U. S. v. Dandridge, 12 Wheat. 04, 08. Directors are not agents in the sense that a 26 Ch. I. S. 12.] LEASE BY CORPORATIONS GENERALLY. *16 though sometimes a minute variation in the name is not so material as to avoid a grant (y/). As to naming tlie corpora- tion, it need only be observed that corporations aggregate, as dean and chapter, mayor and commonalty, warden and fel- lows, &c., may make or confirm leases without expressing either the christian or surname of the dean, mayor, warden, &c., because, in their politic capacity as a corporation aggre- gate, they continue always the same, and are said never to die ; but in leases or confirmations by a bishop, dean, or other sole corporation, both the christian and surname, or at least the christian name and title, ought to be expressed; as, "John, Bishop of P." (2). Appointment of attorney, -when necessary. — Where any personal act is necessary in. the case of a corporation, that act must be done by attorney appointed by deed under their common seal (a) ; for however it may be as to ordi- nary services, * they cannot appoint a person to do [*16] any act which concerns their interest or title in land, unless it be by deed (6). A corporation cannot appear in court otherwise than by attorney (c), who ought, for his own security, to have a retainer under their common seal (c?). A lease to charitable uses by a corporation of lands already in mortmain is not affected by the provisions of 9 Geo. 2, c. 36 (e). Where a corporation has by a private act of parlia- ment power to sell and exchange land, a power to lease the (y) 1 Kyd on Corp. 234, 237 ; (c) 1 Kytl on Corp. 270. Mayor, &c., of Carlisle v. Blamire, 8 {d) Arnold r. The Mayor, &c., of East, 487. Poole, 4 M. & G. 860; 2 r)owl., N. S. {z) 2 Inst. 666; Bac. Abr. tit. Leases 574, cited 5 Q. B. 546; Lewis i'. The (G. 3). Mayor, &c., of Rochester, 9 C. B., (a) Doe d. Bank of England v. N. S. 401. See form of retainer, Id. Chambers, 4 A. & E. 410; 1 Kyd on 408. Corp. 268. (e) Walker v. Richardson, 2 M. & {b) Bac. Abr. tit. Corporations (E. W. 882; Att.-Gen. v. Glyn, 12 Sim. 3). 84 ; Ashton v. Jones, 28 Beav. 460. delegated power cannot be delegated, but they have power to appoint agents to execute conveyances, &c. Burrill v. Nahant Bank, 2 Met. I(i3 (and sec per Shaw, C. J., pp. 166, 167). They derive their powers, however, from the charter and by-laws, and are not necessarily similar in all corporations. 27 *16 BY WHOM TERMS GRANTED. [Ch. I. S. 12. land and give the option of pm-cliase to the lessee is im- plied (/). Lease by company. — Companies incorporated by act of parliament for the purpose of carrying on anj^ undertaking, may demise lands ^ by their directors or a committee of direc- (/) In re Female Orphan Asylum, 15 W. R. 1056 ; 17 L. T. 59. ^ Leases by corporations. — Corporations in America may demise lands in writing or by parol, witli or without the common seal, provided the demises are within the scope of the business for which the company was chartered. Peterborough R. R. Co. i'. Nashua & L. R. R. Co., 59 N. H. 385 ; Maehias Hotel Co. V. Fisher, 56 Me. 321. A railroad company may lease its road and franchise if spectallij authorized by statute. Phila. & Erie R. R. Co. v. Cata- wissa R. R. Co., 53 Pa. St. 20 ; Black v. Delaware & Raritan Canal Co., 22 N. J. Eq. 130 ; Mahoney i-. Atl. & St. L. R. R. Co., 63 Me. 68 ; Murch v. Con- cord R,. R. Co., 29 N. H. 35; Pierce v. Concord R. R. Co., 51 N. H. 503. They cannot, however, make such leases without special statutory authority, because they are breaches of implied contracts with the state, and generally ultra vires. Thomas r. Railroad Co., 101 U. S. 71 ; Shrewsbury & Birming- ham R. Co. V. Northwest R. Co., 6 H. L. Cas. 113 ; York & Maryland L. R. R. V. Winans, 17 How. 39; Langley v. Boston & Maine R. R., 10 Gray, 103; Macon & Augusta R. R. Co. v. Mayes, 49 Ga. 355 ; Abbott v. Johnstown, &c., R. R. Co., 80 N. Y. 27; Carleton, &c., R. R. Co. v. Grand Southern Ry. Co., 21 N. B. 339, 357. The same principle applies in regard to taking leases of other railroads. There must be special statutory authority. (See post, ch. 2, sec. 9, note.) Whether a corporation lease is ultra vires depends upon the objects of the corporation, and the i)urposes for which it was given. A corporation has power, without special authority, to give its promissory notes to pay legitimate debts, Moss v. Oakley, 2 Hill (N. Y.) 265; Kclley r. Mayor, 4 Id. 263, 265 {per Cowen, J.); Mott v. Hicks, 1 Cow. (N. Y.) 513; Barker v. Mechanics' Ins. Co., 3 Wend. (N. Y.) 94, 97 {per Savage, Ch. J.) ; may mortgage real estate to secure a debt, Burrill v. Nahant Bank, 2 Met. 163 ; may contract debts for repairs. Bank of Columbia v. Patterson's Admrs., 7 Cranch, 299 ; for services of employees, &c. But a banking corporation cannot take special deposits, Foster v. Essex Bank, 17 Mass. 479 ; neither can it take stock in a railroad, Nassau Bank v. Jones, 95 N. Y. 115. Whatever are the statutory requirements as to the execution of a corpora- tion lease, they must be strictly complied with. For example, where tlie charter provides that the execution must be by act of tiie directors, a lease autliorized by vote of stockholders is invalid, Conro v. Port Henry Iron Co., 12 Barb. (N. Y. Supreme Ct.) 27 ; and wiienever an ultra vires lease has been made it is the duty of the company to rescind it at the earliest possible moment, Woodruff v. Erie Ry. Co., 93 N. Y. 609; and if a corporation lias granted an ultra vires lease, and lessee lias occupied, he must pay rent. Same V. Same. The relation of landlord and tenant by estoppel, exists if a cor- poration take the benefit of a lease made within tlie scope of its powers, but by unauthorized agents. Peterborougli R. R. Co. v. Nashua & L. li. R. Co., 59 N. II. 385. I'arties dealing with corporations are charged with notice of the limitations in their charters. Per Gray, C. J., in Davis r. Old Colony Rail- road, 131 Mass. 258, 200. 28 Ch. I. S. 1-3.] LEASES BY MUNICIPAL CORPORATIONS. *16 tors under the common seal of the company if the lease be for more than three years, and by writing or parol if it be for a less period, by virtue of the 79th section of the Com- panies Clauses Consolidation Act, 1845 (8 Vict. c. 10). Lease by railway company. — A railway company may not lease their line except by virtue of some special act ; ^ and when such lease is authorized, it must, by virtue of the 112th section of the Railways Clauses Consolidation Act, 1845 (8 Vict. c. 20), contain all usual and proper covenants on the part of the lessee for maintaining the railway. Sect. 13. — Bi/ 3Iunicipal Corporations. At common law. — At common law there was no restraint on civil corporations granting such leases as they pleased, consistently with their own estates, bye-laws and private statutes (,9).^ Leases for 31 years without fine. — By the INIunicipal Cor- porations Act, 1882, 45 & 46 Vict. c. 50, s. 108, replacing, without material alteration, the repealed ss. 94-96 of the Municipal Corporations Act, 1835, 5 & 6 Will. 4, c. 76, muni- cipal corporations cannot demise their lands, without the consent of the Lords of the Treasury, for a longer term than thirty-one years, reserving during the whole term such clear yearly rent as to the council of the borough shall appear {g) Smith v. Barrett, 1 Sid. 101. ^ See note 1. 2 Municipal corporations. — Municipal corporations may grant leases when not ultra vires. For example, the selectmen of a town, duly authorized by vote of the town, may orally lease at will a town wharf. Inhabitants of Hingham r. Sprague, 15 Pick. 102. A municipal corporation, under a grant in its charter to establish permanent ferries, and fix the rates, fees, and rents, has an implied power to lease a ferry. Macdonell i'. I. & G. N. Ry. Co., 60 Tex. 590. Implied contracts. — Municipal corporations, like other corporations, are liable upon their implied contracts as well as their express ones, Hayden j\ Inhabitants of Madison, 7 Grecnl. (Me.) 76, and are bound by acts of un- authorized agents, if they accept the benefit of them. Abbott r. Hermon, 7 Id. 118, 121. A school district which takes possession of and uses a school- house erected by contract with its agents, is estopped to deny the authority of the agents. 29 *17 BY WHOM TERMS GRANTED. [Ch. I. S. 13. reasonable, without any fine ; or in the case of a building lease, or of a lease of buildings as specified below, for a longer term than seventy-five years. Other leases. — When the council deem it expedi- [*17] ent to demise or lease for a longer term, or upon * dif- ferent terms and conditions to those above mentioned, they must obtain the approbation of the Lords of the Treas- ury. Renewed leases. — By sect. 110, replacing the repealed sect. 95 of the act of 1835, in certain specified cases, leases may be renewed by the council of the borough, for such term of years, either absolutely or determinable with any life or lives, for such life or lives, and at such rent, and upon the payment of such fine, and with or without any covenant for future renewal, as might have been permissible in case that act had not passed. This section is to be construed liberally ; but although renewals need not be on precisely the same terms, there must be such an uniformity as to show that the same lease has been renewed. A renewal on a fine, and at an under- value, with variations in the covenants, and a different rent reserved, is not valid (Ji). Building leases. — By sect. 108, also replacing without ma- terial alteration the repealed sect. 96 of the act of 1835, the council of a borough may make a lease for not exceeding seventy-five years, and either at a reserved rent or on a fine or both, as the council think fit : (i.) of tenements or here- ditaments, the greater part of the yearly value of wliich at the time of making the lease consists of buildings ; or (ii.) of land proper for the erection of any houses or other build- ings tliereupon, with or witliout gardens, &c. ; (iii.) where the lessee agrees to erect a building or buildings thereon of greater yearly value than the land, of land proper for gar- dens, &c., to \)Q used witli any other house or other building erected or to be erected on any such land, belonging either to the borough or to any other proprietor, or proper for any other purpose calcuLited to afford convenience or accommo- dation to the occupiers of any such house or building, (Ji) Att.-Gcn. V. Great Yarmoutli, 21 IJcav. G26. 80 Cii. I. S. U.] ECCLESIASTICAL LEASES. *18 Working men's dwellings. — By sect. Ill of the same act, reproducing the Working Men's Dwellings Act, 1874, the council of a borough may make leases for 999 years, or for any shorter term, of corporate land converted by them into sites for working men's dwellings, with the approval of the Treasury, for the purpose of such dwellings being erected thereon by the lessee. The Labouring Classes Lodging Houses Act, 1851 (14 & 15 Vict. c. 34), contained provisions (see s. 2), having a similar object ; but that act has not been adopted by any single town council. The Housing of the Working Classes Act, 1885 (48 & 49 Vict. c. 72), enlarges (see s. 2) the scope of the Act of 1851, by allowing the erection of separate houses, in the event of that act being adopted, but does not seem to increase the facilities for its adoption. * Sect. 14. — Ecclesiastical Leases} [*18] (a) The "• Enahliyig " and " Disabling " Statutes. At common law. — By the common law, all ecclesiastical corporations aggregate might make any leases they thought fit, without the confirmation of any person (z), and so might eleemosynary corporations, as masters and fellows of colleges, masters of hospitals and their brethren (i). But ecclesiastical corporations sole, as archbishops, bishops, deans, prebendaries, parsons, and vicars, and others, could not make leases hi7id- ing on their successors, of lands and tenements whereof they were "seised in their corporate right, except with the consent, and in some cases with the confirmation, of such persons as the law required (/c). (0 Co. Lit. 44 a. Touch. 281; Woodf. L. & T. 20-23 (^') Co. Lit. 44 a, 07 a; Shep. (9tli ed.). 1 Powers of ecclesiastical corporations. — Ecclesiastical corporations may grant leases. The rector, church-wardens and vestry of a parish may lease a ferry granted them by tlie crown or other propertj'. Eraser v. Drynan, 4 Allen (N. B.) 74 ; Hughes i-. Holmes, 1 Allen (N. B.) 12. Ecclesiastical corporations in the American states are very much like private civil corpo- rations. They differ of course as to their implied powers somewhat, owing to the difference in their scope and character of their property. 31 *19 BY WHOM TEEMS GRANTED. [Ch. I. S. 14. The exercise of such powers having been much abused by owners for the time being, to the prejudice of their successors, the legislature from time to time interfered and passed various disabling or restraining statutes (/). Prior to certain ncts^ such as " The Ecclesiastical Leasing Act^ 1842," all passed in the reign of Queen Victoria, which will be presently ad- verted to, no lease from any ecclesiastical corporation, aggre- gate or sole, could safely be made otherwise than in pursu- ance of some or one of these statutes, with such consent (if any) and subject to such restrictions, and containing such covenants and conditions as were prescribed by the act or acts pursuant to which the lease was made. The " dis- abling " statutes, however, although not repealed (??i), are almost entirely superseded (w) by the statutes of Queen Victoria, and are now of consequence chiefly in relation to the vested interests created under them, as showing the course of legislation on the subject, and as explaining the phraseology of ecclesiastical leases. The Enabling Act. — By 32 Hen. 8, c. 28 (commonly called the Enabling Act), all persons seised of lands in fee simple in right of their churches (o) (except parsons and vicars(j9)) may, by indenture, demise such parts thereof as have been most commonly letten to farm and occupied by the farmers thereof for twenty years next before such demise, for any term not exceeding twenty-one ^^ears or three lives, reserving yearly during the whole term the most accustomed rent or more ; such lease not to be made without impeachment of waste, nor whilst there is any old lease, unless the same shall expire or be surrendered or ended within one year next* after the making of the new lease. [*19] * It is to be observed that leases made in pursuance of this act do not require any confirmation whatever. Archbishops, bishops, and other ecclesiastical corporations sole (except parsons and vicars) may grant leases pursuant (/) See Cliit. Stat. tit. "Leases," (o) This act lias been repealed by vol. iv., Lease (Ecclesiastical, &c.). 10 & 20 Vict. c. 120, s. 85, " except so (m) Sec Jenkins r. firecn, 27 Heav. far as relates tn leases made by per- 440. sons bavin^j an estate in rifj;lit of tbeir (n) See Pliillimore's Ecclesiastic nl cliurcbes." Law, vol. ii. p. 1047. (/') ISect. 4. 32 Cii. I. S. 14.] ECCLESIASTICAL LEASES. *19 to the above act. A prebendary appears to be within the act (^q) ; and so does the chancellor of a cathedral church (r), but not a perpetual curate, whose curacy has been augmented by a grant of lands under the Queen Anne's Bounty Acts; for either he is not seised in fee in right of his church, or he is a quasi-vicar (s). Corporations aggregate, such as deans and chapters, universities, colleges, &c., are not within the statute (0 ; nor are copyhold lands (ii). The first Disabling Act. — By the Disabling or Restraining Act (1 Eliz. c. 19), s. 5, all leases by any archhishop or bishop of any parcel, &c., for more than twenty-one years or three lives, or whereupon the old accustomed yearly rent or more shall not be reserved and made payable yearly during the whole term, "shall be utterly void " (x). Archbishops and bishops. — It is to be obseryed that only archbishops and bishops are restrained by this statute. But tlie act applies to all leases made by them, although confirmed by the dean a7id chapter, except leases made pursuant to 32 Hen. 8, c. 28 (?/), which are not interfered with. Concurrent leases, if confirmed by the dean and chapter, are valid pro- vided they do not exceed (together with the lease in being) the term permitted by' the above act. Leases of ecclesiastical property for t-wenty-one years or three lives. — By the Restraining Act (13 Eliz. c. 10), s. 3, all leases by any master and fellows of any college, dean and chapter of any cathedral or collegiate church, master or guardian of any hospital (s), parson, vicar, or any other having any spiritual or ecclesiastical living of any parcel, &c., for more than twenty-one years or three lives, or not reserving the accustomed yearly rent or more, "shall be utterly void." Sect. 4 contains a saving of private statutes. (9) Acton V. Pritcher, 4 Leon. 51 ; (h) As to leases of copyholds, see Watkiiison v. Man, Cro. Eliz. 349 ; 24 & 25 Vict. c. 105, post, 26. but see Lit. ss. 644-648 ; Doe d. Rich- (x) The exception in this act of ardson i\ Thomas, 9 A. & E. 556. leases to the crown was repealed by 1 (r) Bisco i;. Holte, Lev. 112; Sid. Jac. 1, c. 3, which renders all such 158; Ensden v. Dennis, Palm. 105. leases utterly void. (s) Doe d. Richardson i-. Thomas, (.;/) Ante, 18. 9 A. & E. 556. (z) Explained, as to hospitals, by (0 10 Co. R. 60 a. 14 Eliz. c. 14 ; and see 39 Eliz. c. 5, s. 6 ; post, 20. 33 *20 BY WHOM TERMS GRANTED. [Ch. I. S. 14. This act does not enable parsons or vicars to make any leases whatever without the consent of the patron and ordi- nary (a). But it restrains them from making any lease, even with such consent^ for more than twenty-one years or three lives, or without reserving the accustomed yearly rent or more. A lease by a vicar (with such consent) for three lives of uninclosed waste land not let before is [*20] * void as against his successor, notwithstanding the lessee covenants to inclose the land and pay a rack- rent for it (^). Void means voidable. — Although this statute declares that all leases not made according to its provisions shall be utterly void, it has been frequently held that such leases are good during the life of the lessor (c) ; and even after the lessor's death they are not void, but only voidable l)y the successor, who may confirm them(t^). But the Statute of Limitations (3 & 4 Will. 4, c. 27) does not begin to run against such successor until he exercises his option by bringing an action for the recovery of the property. This was decided in a case where the governors of a hospital granted a lease in 1783 for ninety-nine years at a pepper-corn rent, and their successors brought an action to set the lease aside in 1876 {e). Leases by curates. — By 14 Eliz. C. 11, S. 16, "All leases, bonds, promises and covenants of and concerning benefices and ecclesiastical livings with cure, to be made by any curate, shall be of no other or better force, validity or con- tinuance, than if the same had been made by the beneficed person himself that demised or shall demise the same to any such curate " (/). Houses and grounds in towns, &c. — By 14 Kliz. C. 11, S. 17, the 13 Eliz. c. 10, shall not e.Ktend to any grant, assurance («) Uac. Abr. tit. Leases (I. O.). 217; Doc d. Pennington i-. Taniere, (/j) Goodtitie d. Claries v. Funu- ]'2 Q. 15. iM>8 ; Pennington c. Cardaie, can, 2 Doiijj. 505 ; Doe d. Tenny.son .'J II. &. N. (i5(), (i(l(5. r. Lord Yarborough, 1 Ring. 24 ; Up. (r) Magdalen Hospital v. Knotts, of Hereford v. Scorj, Cro. Kiiz. 874. 4(5 L. J., Cii. 14'J ; L. U., 5 Ch. D. ('•) Doe d. Bryan i-. IJancks, 4 R. & 175. A. 407, Bayiey, J. (/) Doe d. Ricliardson i-. Tiioinas, {d) Edwards v. Diek, 4 B. & A. A. & K. 550. 34 Cii. I. S. 14.] ECCLESIASTICAL LEASES. *21 or lease of any houses belonging to any the persons, or bodies politic or corporate aforesaid, nor to any ground to such houses appertaining, which houses are situate in any city, borough, town corporate, or market town, or the suburbs of any of them ; but all such houses and grounds may be granted, demised and assured as by the laws of this realm, and the several statutes of the said colleges, cathedral churches and hospitals, they lawfully might have been be- fore the making of the said statute, or lawfully might be if the said statute were not , so always that such house be not the capital or dwelling-house used for the habitation of the persons above said, nor have ground to the same belonging above the quantity of ten acres, anything in the said act to the contrary notwithstanding. Not for more than forty years. — Sect. 19 provides, "That no lease shall be permitted to be made by force of this act, in reversion, nor Avitliout reserving the accustomed yearly rent at the least, nor without charging the lessee with the reparations (,^), nor for longer term than forty years at the most." Covenant to put in lives. — A coyenant by the trustees of a charity to put in a new life so often as one of three lives drops, in the case of a lease for more than forty * years, will not be enforced (A). But a lease by a [*21] vicar of messuages in the city of London — of which the dAvelling-house used for the habitation of the vicar formed no part, and the ground demised was less than ten acres — for twenty-one years from the date of the lease, made at a time when a former lease of the said premises for forty years was in being, but within three years of its expiration, was {g) Crane v. Taylor, Hob. 269. ers having vetoed the lease under 18 (h) Moore v. Clench, L. R., 1 Cli. & 19 Vict. c. 124, s. 29, the governors D. 447 ; 45 L. J., Ch. 80 ; 34 L. T. 13 ; refused to put in another life. Jessel, 24 W. R. 169. Here the lease was in M.R., in refusing specific performance 1836 for 40 years and a month, with of the covenant to put in the life, ex- a concurrent term of 99 years for pressed an opinion that the Charity three lives, and a covenant during Commissioners could not have vetoed the 40 years and the month to add a the renewal of the lease if it had been life. In 1857 a new life was put in, originally valid, but in 1872 the Charity Commission- 35 *21 BY WHOM TERMS GRANTED. [Ch. I. S. 14. held not void under either of the restraining acts of Eliza- beth (i). Corn rents, — B}^ 18 Eliz. c. 6, s. 1, in college leases one- third part at the least of the old rent must be reserved and paid in corn (wheat or malt) for the said colleges, at certain rates therein mentioned ; and see 39 & 40 Geo. 3, c. 41, s. 7. Concurrent leases. — The 18 Eliz. c. 11, after reciting the 13 Eliz. c. 10, s. 3, enacts (s. 2), that all leases of any eccle- siastical, spiritual or collegiate lands, tenements or heredita- ments, whereof any former lease for years is in being, and not to be expired, surrendered or ended within three years next after the making of such new lease, shall be void, as well as all bonds and covenants for the renewal of the same. And by 43 Eliz. c. 9, s. 8, all payments had for the intent to have and enjoy any lease contrary to these statutes shall be void in the same manner as bonds and covenants are ap]3ointed to be. Leases of Fifield Manor. — By 18 Eliz. C. 11, ss. 5, fi, Saint John's College, Oxford, may grant leases of the manor of Fifield, in Oxfordshire, to the kindred of their founder, Sir Thomas White, for ninety-nine years. Leases by hospitals, &o. — By 39 Eliz. c. 5, s. 6, all leases, grants, &c., made by any corporation founded in pursuance of that act as a hospital, maison de Dieu, abiding place or house of correction, exceeding twenty-one j'^ears in possession, or whereupon the accustomed yearly rent or more by tlie greater i)art of twenty years next before the making of such lease shall not be reserved and yearly payable, shall be void (/■). Ancient offices not within the statutes. — The grants of ancient offices belonging to ecclesiastical persons are not within any of these acts, and therefore stand as at common law(0. By 39 k 40 (ieo. 3, <•. 41, whcn-e any i)art of the possessions of any arc]il)isliop, 1)isli()p, master and fellows, dean and chap- (j) Vivian r. Blombcrfj, .3 Bing. antr, 18, oxi)Iaiiioil by 14 Eliz. c. 14. N. C. ;{11 ; :] Scott, 081 ; 7 Sim. (/) Hp. of Salisbury's case, 10 Co. 648. H. (JI a. (/•) And see l.'J Kli/.. c 10, .s. ?,, 3(1 Cu. I. S. 14.] ECCLESIASTICAL LEASES. *22 ter, master or guardian of any hospital, or any other person or persons, or body or bodies politic or corporate, having any ecclesiastical liviny, shall be demised by several leases which was formerly demised by one lease * under one [*22] rent ; or where a part shall be demised for less than the ancient rent, and the residue shall be retained in the pos- session of the lessor ; the several rents reserved on the separate demises of the specific parts shall be taken to be the ancient rents within the meaning of the statutes 22 Hen. 8, c. 28 ; 1 Eliz. c. 19 ; 13 Eliz. c. 10 ; and 14 Eliz. c. 11 ; and are to be equitably apportioned in manner therein provided (ni). Land-tax redeemed by a bishop. — By the Land-Tax Re- demption Act (42 Geo. 3, c. 116), ss. 69, 83, 88, the land- tax, when redeemed by any bishop, shall be considered as yearly rent, and shall be reserved in all demises. A lease by a bishop in which such land-tax is not expressly reserved as rent is voidable by the successor (w). Renewed leases, &c. — By 6 Will. 4, c. 20, " no archbishop or bishop, ecclesiastical corporation, sole or aggregate, digni- tary, canon, or prebendary, or other spiritual person, nor any master or guardian of any hospital, shall grant any new lease of parcel, &c., by way of renewal of any lease which shall have been previously granted of the same for tivo or more lives, until one or more of the persons for whose lives such lease shall have been so made shall die, and then only for the surviving lives or life and for such new life or lives as, together with the life or lives of such survivor or survivors, shall make up the number of lives, not exceeding three in the whole, for which such lease shall have been so made as aforesaid ; and where any such lease shall have been granted for forty years, no such archbishop, &c., shall grant anj' new lease by way of renewal of the same until fourteen years of such lease shall have expired ; and where any such lease shall have been made as liforesaid /o?- thirty years, no such archbishoj), &c., shall grant any new lease by way of renewal of the same until ten years of such lease shall have expired ; (m) Sect. 2 et seq. the redemption of land-tax, see War- (7i) Doe d. Murray v. Bridges, 1 B. ner v. Potchett, o B. & Ad. 921. & A. 847. As to the sale of land for 37 *23 BY WHOM TERMS GRANTED. [Cri. I. S. 14. and where any such lease shall have been granted /or twenty- one years, no such archbishop, &c., shall grant any new lease by way of renewal of the same or (in the case of archbishops or bishops) concurrently therewith until seven years of such lease shall have expired ; and where any such lease shall have been granted for years, no such archbishop, &c., shall grant any lease by way of renewal of the same or otherwise for any life or lives ; any law, statute or custom to the con- trary notwithstanding." Previous lease. — By sect. 2, the new lease must contain a recital or statement of the previous lease, &c. ; but by 6 & 7 Will. 4, c. 64, no such renewed lease shall be void " by rea- son only of its not containing such recital or statement." Short renewal. — By sect. 3, where it has been the [*23] usual practice to renew leases for * forty, thirty or twenty-one years respectively at shorter periods than fourteen, ten or seven years respectively, and that practice is certified as in this section provided, such leases may be renewed at shorter intervals, according to the practice so certified. Special acts. — Sect. 6 provides, that nothing in this act contained shall prevent any grants or renewal of leases which may have been authorized by acts of parliament spe- cially relating to the particular estates demised by such leases (o). Confirmation only. — By sect. 7, renewed leases, by way of confirmation only for the same life or term, may be granted. By sect. 8, no lease not authorized by the laws and stat- utes now in force "shall be rendered valid by anything in this act contained." By sect. 9, leases " contrary to this act shall be void ; " but this was qualified as to sect. 2 by 6 & 7 Will. 4, c. 64, as before mentioned. (b) The Acts of Queen Victoria. Lease of parsonage. — By 1 & 2 Vict. C. 106, s. 59, "any agreement made for the letting of the house of residence, or (o) See 18 Eliz. c. 11, ante, 21. 38 Ch. I. S. 14.] ECCLESTASTICAL LEASES. *24 the building, gardens, orcjhards, or appurtenances necessary for the convenient occupation of the same, belonging to any benefice, to which house of residence any spiritual person may be required, by order of the bishop as aforesaid, to pro- ceed and to reside therein, or which may be assigned or appointed as a residence to any curate by the bishop, shall be made in writing, and shall eontain a condition for avoidinu the same, upon a copy of such order, assignment or appoint- ment being served upon the occupier thereof or left at the house, and otherwise shall be null and void." And a sum- mary remedy is provided for enforcing such condition. Leases for 14 years. — By stat. 5 & 6 Vict. C. 27, which applies to farming leases, in cumbents of ecclesiastical bene- fices (jo) may, with the conse7it of the bishop and patron, lease lands belonging to their benefices, except the parson- age house and offices and ten acres of glebe situate most convenient to be occupied therewith, for any term not exceed- ing fourteen years, subject to the restrictions and conditions imposed upon them by the said act for the benefit and pro- tection of their successors. Leases for 20 years. — But it is provided that " the term to be granted by any such lease as aforesaid may be tiventy years in any case where the lessee shall covenant thereby to adopt and use any mode or system of cultivation more ex- pensive than the usual course, or to drain or subdivide, or embank and warp at his expense any part of the de- mised premises, * or to erect, at his own expense, on [*24] the said premises any buildings, or to repair in a more expensive manner and at a greater expense than is usually required of lessees of farms an}^ buildings on the demised premises, or in any other manner to improve at his expense the demised premises or any part thereof" (5'). No lease granted under this act can be surrendered without the consent of the bishop and patron (r). The act itself must be referred to for details. At common law a lease granted (p) By s. 15, "the word ' benefice' trict chapelry ; the incumbent of shall be construed to comprehend which in right thereof shall be a every rectory, vicaragre, perpetual corporation sole." curacy, donative, endowed public (7) Sect. 1. chapel, parochial chapelry, and dis- (r) Sect. 5. 39 *24 BY WHOM TERMS GRANTED. [Ch. I. S. 14. by the incumbent of a benefice, in whatever terms it was framed, operated as a demise so long only as he continued incumbent, for he could not pass a greater interest (s). Consents as evidence. — By sect. 4, " the execution b}^ the bishop and patron whose consents are hereby made requisite of any lease to be granted under the authority of this act shall be conclusive evidence that the lease does not comprise any lands which ought not to be leased under the provisions of this act, and that a proper portion of the glebe lands re- mains unleased, and that the rent reserved by such lease is the best and most improved rent that could be reasonably gotten for the lands and hereditaments comprised therein at the time of granting such lease, and that all the covenants contained in such lease are proper covenants." Validity of irregular lease. — In consequence of sect. 4, a lease which is executed by the patron and ordinary as well as the incumbent may be valid in favour of the lessee, al- though it does not strictly comply with all the requisitions of the statute : for instance, where it reverses the rent half- yearly instead of quarterly (Q. Quod fieri non debit factum valet. The act does not repeal. — The above act does not repeal the 13 Eliz. c. 10 : and therefore a rector, with the consent of the patron and bishop, may demise his glebe under the powers of the common law, subject to the provisions of the statute of Elizabeth, though the lease may not be conform- able to the restrictions imposed by the statute of Victoria (w). Ecclesiastical Leasing Act. — By " The Ecclesiastical Leasing Act, 1842 " (x), as amended by " The Ecclesiastical Leasing Act, 1858" (^), any ecclesiastical corporation, aggregate or (s) Wheeler r. Hcydon, Cro. Jac. (h) Jenkins v. Green, 28 Beav. 87. 328 ; Price v. Williams, 1 M. & W. G ; (x) 6 & G Vict. c. 108. Doe d. Kerby v. Carter, Ily. & Moo. (.'/) 21 & 22 Vict. c. 57. The Act 237 ; Doe d. Tennyson v. Lord Yar- 12 & 13 Vict. c. 2G, for granting relief borough,! King. 24 ; Cole Ejec. C02. against defects in leases under pow- (t) Jenkins v. Green, 27 Beav. 440; ers, does not (see sect. 7) apply to but the Acts 24 & 25 Vict. c. 105, and ecclesiastical leases, or to leases of 25 & 20 Vict. c. 52, post, seem, to a the possessions of any college, hospi- great cxtiiit, to get rid of the elTcct tal, or charitable foundation. of this decision. 40 Cii. I. S. 14.] ECCLESIASTICAL LEASES. *25 sole, except any college (z) or corporation of vicars choral, priest vicars, senior vicars, custos and vicars or minor canons, and except also any ecclesiastical hospital, or the master thereof, may, ivith the consent of the Ecclesiastical Comjnissioners for England^ and * Avith such further [*25] consents as in the said acts mentioned, grant build- ing and repairing leases for any term not exceeding ninety- nine years : also leases of running water and way-leaves, and other rights and easements, for any term not exceeding sixty years: also mining leases, for any term not exceeding sixty years : all of which leases must be made subject to certain restrictions and conditions for the protection and benefit of their successors. The acts must be referred to for details, but it may be mentioned here that sect. 1 of the act of 1842 expressly authorizes a lease " with or without a proviso that no breach of covenant (except the covenant for payment of rent and other such covenants, if any, as may agree to be excepted) shall occasion any forfeiture unless judgment shall have been obtained in an action for such bi'each of covenant, nor unless the damages and costs to be recovered in such action shall have remained unpaid for the space of three calendar months after judgment shall have been obtained in such action." The execution of any such lease by the neces- sary consenting parties is to be conclusive evidence that the requisites of the above acts have been complied with. Under sect. 30 of the first-mentioned act they were prohibited from taking any premium, fine or foregif t ; but that was rej)ealed by 21 & 22 Vict. c. 57, ss. 1, 2. Previous powers not interfered with. — By sect. 8 of the first-mentioned act, "nothing in this act contained shall restrain any corporation hereby empowered to grant leases and make grants as aforesaid from granting any leases or making any grants, whether by way of renewal or otherwise, which such corporation might have lawfully and rightfully granted or made either under the provisions of any public (a) or private act of parliament, or under any other authority, or in any manner whatsoever, in case this act had not been (2) As to leases by colleges, see (a) See 6 Will. 4, c. 20, ante, 22. post. Sect. 15. 41 *26 BY WHOM TERMS GRANTED. [Ch. I. S. 14. passed, or from the taking of any fine, premium or foregift from the lessees in any renewed or new leases named or to be named, or from their underlessees, or from any other persons having or claiming an interest in any such renewal, for any such renewed or new leases, save and except that in every lease (other than any lease granted under the powers of this act) which shall be granted by any such corporation as aforesaid, of any lands or houses which shall have been leased for building or repairing purposes under any of the powers of this act, there shall be reserved the best improved rent, payable half-yearly or oftener, which can be obtained for the same, without taking any fine, premium or foregift, or anything in the nature of a fine, premium or foregift, for making or granting the same." By "The Ecclesiastical Leasing Act, 1858" (21 & 22 Vict. c. 57), s. 1, " in any case in which it shall be [*26] made to appear to the * satisfaction of the ecclesias- tical commissioners for England that all or any part of the lands, houses, mines, minerals or other property of or belonging to any ecclesiastical corporation which are by the 5 & 6 Vict. c. 108, authorized to be leased, might to the per- manent advantage of the estate or endowments belonging to such corporation be leased in any manner^ or be sold, ex- changed or otherwise disposed of, it shall be lawful for any ecclesiastical corporation, aggregate or sole, except as in the said act is excepted^ from time to time, with such consents as in the said recited act mentioned, and with the approval of the said commissioners, to be testified by deed under their common seal, to lease all or any part or parts of the lands, houses, mines, minerals or other property belonging to such corporation, whether the same shall or shall not have been previously leased or dealt with under the provisions of the said recited act, or of this act, and either in consideration or partly in consideration of premiums or not, or for such other considerations, and for such term or terms, and luidcr and subject to sucli covenants, stipulations, conditions and agree- ments on the part of the lessee or lessees, and generally in such manner as the said commissioners shall under the cir- cumstances of each case think proper and advisable." 42 Ch. I. S. 14] ECCLESIASTICAL LEASES. *27 Episcopal and Capitular Estates Acts. — By 14 & 15 Vict, c. 104, intituled "An Act to Facilitate the Management and Improvement of Episcopal and Capitular Estates in Eng- land " (i), ecclesiastical corporations, sole or aggregate, with the approval in writing of the Church Estate Commissioners, may sell, enfranchise or exchange their church lands, or pur- chase the interest of their lessees. And by sect. 9, "no lease of any lands purchased or acquired, or in which the estate or interest of a lessee, or of a holder of copyhold or cus- tomary land, is purchased or acquired, by any ecclesiastical corporation under this act, shall, except as hereinafter pro- vided, be granted by such ecclesiastical corporation, other- wise than from year to year, or for a term of years in posses- sion 7iot exceeding fourteen years, at the best annual rent that can be reasonably gotten, without fine, the lessee not to be made dispunishable for waste, or exempted from liability in respect of waste : provided always, that it shall be lawful for such ecclesiastical corporation, with the approval of the Church Estate Commissioners, from time to time to grant mining or building leases," as therein mentioned (c). Leases by bishops. — By the 23 & 24 Vict. c. 124, s. 8, "no lands assigned or secured as the endowment of any see under this act shall be granted by the archbishop or bishop otherwise th-an from year to year, or for a term of * years in possession not exceeding tiventy-one years, [*27] at the best annual rent that can be reasonably gotten, without fine, the lessee not to be made dispunishable for waste, or exempted from liability in respect of waste ; and so that in every such lease such or the like covenants, con- ditions and reservations be entered into, reserved or contained with or for the benefit of the archbishop or bishop and his successors, as under sect. 1 of the act b &j Q Vict. c. 27 (for better enabling the incumbents of ecclesiastical benefices to demise the lands belonging to their benefices on farming (h) A temporary act, amended by ing Laws Continuance Act, 1880 (43 17 & 18 Vict. c. 116 ; 22 & 28 Vict. c. & 44 Vict. c. 48), until the 31st De- 46; 23 & 24 Vict. c. 124; 31 & 32 cember, 1881. Vict. c. 114, s. 10; and continued by (c) See also the Ecclesiastical numerous Expiring Laws Continu- Leasing Acts, 1842, 1858, ante, 23, ance Act; and lastly, by the Expir- 24. 43 *27 BY WHOM TERMS GRAi^TED. [Ch. I. S. 14. leases), are to be entered into, reserved or contained in a lease granted under that enactment to or for the benefit of the incumbent and his successors, or as near thereto as the circumstances of the case will permit ; but where under the said section of the last-mentioned act any consents are pro- vided for or required, the consent only of the archbishop or bishop for the time being shall be requisite: provided always, that it shall be lawful for the archbishop or bishop, with the approval of the estate committee of the ecclesiastical com- missioners, testified under the common seal of the said com- missioners, which the said committee are hereby empowered to afiix to any lease for this purpose, from time to time to grant mining or building or other leases of any such lands for such periods, for stich considerations, upon such terms, and generally in such manner as such committee under the circumstances of each case ma}^ think fit; and it shall be lawful for such committee to require that any portion of the rent reserved on any such lease shall be payable to the said ecclesiastical commissioners." Ecclesiastical commissioners. — By sect. 9, " the estates committee shall cause the property assigned as an endow- ment for any see as aforesaid to be inspected so often as they think fit, and shall cause notice in Avriting of all dilapi- dations or want of repair found in such inspection, and of the repairs or works necessary for remedying the same, to be given to the archbishop or bishop of such see, and such archbishop or bishop shall forthwith do or cause to be done at his or their own expense, or at the expense of his or their lessees or tenants (as the case may require), the repairs or works mentioned in such notice ; and if any difference arise between such archbishop or bishop and the estates committee with regard to the condition of such property, or the repairs or works refjuired by the estates committee, the matter in difference shall be referred to arbitration as hereinafter provided." By sect. 11, "the estates committee shall, when required by any archbishop or l)isliop to wiiom lands may have been assigned as an endowment under this act, undertake the management of such lands and receive the rents and profits 44 Ch. I. S. 14.] ECCLESIASTICAL LEASES. *28 thereof during the incumbency of tlie archbishop or bishop; and in every such case as aforesaid the estates * committee, during their management, may grant [*28] all such leases as might liave been granted by such archbiohop or bishop if the lands had continued under liis or their management, and may with the approval of such archbishop or bishop grant such other leases as might have been granted by him or them with the approval of tlie estates committee ; and the commissioners shall, during the time such lands are under the management of the said estates com- mittee, pay to such archbishop or bishop the annual income to secure which the lands may have been assigned." By sect. 31, rights of renewal and other obligations under special acts, &c.,. preserved., notwithstanding anything done under sect. 10. Leases of copyholds. — By 24 & 25 Vict. C. 105, intituled "An Act to Prevent the Future Grant by Cop}^ of Court Roll and certain Leases of Lands and Hereditaments in England belonging to Ecclesiastical Benefices " (cZ), after recitinor " that there are in England certain ecclesiastical benefices to which belong manors, lands, tenements and hereditaments, which by custom or otherwise, the rectors, vicars, perpetual curates or incumbents thereof have power to grant and lease out for lives and long terms of years, and such grants have been made by them at nominal annual rents, to the prejudice of their successors, and it is expedient to determine and put an end to the power to make such grants ; " it is enacted as follows : — Pines prohibited. — By sect. 1, " it shall not be lawful for any prebendary of any prebend, not being a prebend of any cathedral or collegiate church, rector, vicar, perpetual curate or incumbent, wlio after the passing of this act may become possessed of or entitled to any manors, lands, tenements or hereditaments belonging to any ecclesiastical benefice in England to make any grant by copy of court roll or lease of any such manors, lands, tenements, or hereditaments in con- {d) Amendod by 25 & 26 Vict. c. tended to cop^'holds except 5 & G 52, post, 20. None of the previous Vict. c. 27, ante, 23. Disabling or Restraining Acts ex- 45 *29 BY WHOM TERMS GRANTED. [Ch. I. S. 14. sideration of any fine, premium or foregift, but the same may, by any rector, vicar, perpetual curate or incumbent appointed after the passing of this act, be leased^ sold, ex- changed or enfranchised, or disposed of under the provisions of 5 & 6 Vict. c. 27 ; 5 & 6 Vict. c. 106, and 21 «& 22 Vict. c. 57, or such of the provisions of such acts respectively as are now in force." By sect. 2, " nothing herein contained shall interfere with or prevent the right and power of any such present preben- dary, rector, vicar, perpetual curate or incumbent, during his incumbency, to make any grant by copy of court roll or lease wliich he might lawfully have made before the pass- ing of this act, and nothing herein contained shall prejudice or affect any grant heretofore madq by such preben- [*29] dary, rector, * vicar, perpetual curate or incumbent, or any right of renewal or tenant right, if any such there be, in any manors, lands, tenements, or hereditaments held under any such grant or under any lease, nor shall this act prejudice or affect any power of sale, exchange or en- franchisement existing under any statute now in force, or any present or future right of admission of any person to any copyhold tenement according to the custom of the manor of which it is holden, and to which such person may be legally entitled." Powers to incumbents. — By sect. 3, notwithstanding any- thing contained in the lltli section of an act 14 »& 15 Vict. c. 101, any rector, vicar, perpetual curate or incumbent shall have sucli and the same powers of sale, exchange and enfrancliisement as are possessed by an ecclesiastical corpo- ration, sole or aggregate, under any act now in force ; and the provisions of an act 23 & 24 Vict. c. 124, shall, so far as the same relate to powers for the raising or application of money by trustees, allowances to lessees, arbitration, valua- tion, rate of interest, apportionment of rent and substitution of titles on exchange, be applied, mutatis mutandis^ to sales, exchanges or enfranchisements of any manors, lands, tene- ments or lieroditamcnts in tliis act comprised ; but the pro- ceeds of any such sales or enfranchisements and any monies received by way of equality of exchange, shall be applied 46 Ch. I. S. 15.] UNIVERSITIES AND COLLEGES. *30 according to the provisions in tliat behalf contained in the said act 5 & 6 Vict. c. 108, and in the said act 21 & 22 Vict. c. 57. By 25 & 26 Vict. c. 52, the prohibition to make any grant by copy of court roll or lease contained in 24 & 25 Vict. c. 105, s. 1, shall not only extend to grants made in considera- tion of any fine, premium, or foregift ; but shall also extend to all grants and leases made for a longer term or in any other way than according to the provisions of the several statutes mentioned in sects. 1, 3 of that act. Leases by deans and chapters. — By 31 & 32 Vict. C. 114, S. 9, none of the deans and chapters mentioned in the schedule to 31 & 32 Vict. c. 10 [including York, Carlisle, Peterborough, Chester, Crloucester, St. Asaph, Worcester, Chichester, Win- chester, Salishury, Bristol, Canterhunj, Exeter, Wells, Roches- ter, St. David's, Llandajf, and Windsor~\, and no dean and chapter after makinf/ of any order in council respectinrf them, in pursuance of this act, shall demise any land vested in them, othe]-\vise than from year to year, or for a term of years in possession not exceeding twenty-one, at the best annual rent that can be reasonably got without fine ; and shall not make the lessee dispunishable for or exempt from liability in respect of waste ; and in every such lease such or the like covenants, conditions and reservations shall be entered into, reserved or contained with or for the benefit of the dean and chapter and their successors, as under sect. 1 of 5 & 6 Vict. c. 27, are to be entered into, reserved or con- tained with or for the benefit of the lessor and his successors in * a lease granted under that section, [*30] or as near thereto as the circumstances admit (e). Sect. 15. — By Universities and Colleges. They are civil corporations. — The universities of Oxford and Cambridge are regarded as civil corporations (/) ; so, (e) This enactment was intended dropping of each life, upon pa^'ment to put an end to the custom wliich of a large fine, vviiich was immediately had long prevailed of renewals of divided between the members for the leases by deans and chapters at the time being. end of each seven years, or on the {/) Parkinson's case, Carth. 93; 47 *30 BY WHOM TERMS GRANTED. [Ch. I. S. 15. of course, are the universities of Durham and London ; and the several colleges in all such universities respectively. Powers of leasing at common law. — Like other corporations aggregate, they had at common law power to make such leases of their lands as they thought fit under their common seal, without the consent or confirmation of any other per- son (^), provided such leases were in conformity with their own private statutes, charters and bye-laws. Restraining or Disabling Acts. — But as SUch power was often much abused by the members for the time being, to the great prejudice and impoverishment of their successors, they have been restrained by divers statutes from leasing their lands, and especially their church lyroperty^ except for limited terras and subject to certain covenants and condi- tions intended for the protection and benefit of their suc- cessors (li). Oxford, Cambridge, Durham, Eaton and Winchester. — Now, by the Universities and College Estates Act, 1858 and 1860 (/), the universities of Oxford^ Cambridge^ and Durham and the colleges in those universities respectively (including Christ Church, Oxford), and also the colleges at Winchester and Eaton^ have extensive powers (without the consent or control of the Cop3^hold Commissionei's or of the Church Estates Commissioners, or of any other person or persons whomsoever), to grant leases for any term not exceeding twenty-one years^ subject to certain restrictions and condi- tions for the protection and benefit of their successors ; also to grant building and repairing leases for ninety-nine years, and to enter into previous contracts for any such leases ; also to lease running water and Avay-leaves, and other rights and easements for sixty years ; also to grant mining leases for sixty years, and various otlier powers. The acts must be referred to for details (A-), but it ma}- be mentioned here U. V. V.-C. of Cambridge, :j Burr, (manor of Fifiild) ; .",9 & 40 Geo. 3, 1(550. c. 41,rtH//', sfc't. 14 (/)) ; 12 & i;5 Vict. (7) Co. Lit. 44 a. c. 20 (defective execution of powers), (h) See 1:5 Eliz. c. 10, s. .". ; 14 Kliz. anic, 24, note (//). c. 11, 8. 17; 18 Eliz. c. 6. s. 1 (((.rn (/) 21 & 22' Vict. c. 44; 23 & 24 rents) ; 18 Eliz. c. 11, s. 2 ; Id., ss. 5, Vict. c. 50. (/•) See Chit. Stat. vol. iv. tit. 48 Ch. I. S. 15.] UNIVERSITIES AND COLLEGES. *31 • that the act of 1858 authorizes leases containing a proviso against * forfeiture without prior action for [*31] damages similar to that allowed by the Ecclesiastical Leasing Act, 1842, previously referred to. Previous poTvers not affected. — By sect. 30 of the first- mentioned act, " nothing in this act contained shall restrain the said universities or colleges respectively from exercising any powers of sale, enfranchisement, exchange, purchase or borrowing monies, or from granting any leases^ or making any grants, whether by way of renewal or otherwise, which the said universities, or any such college as aforesaid, might have exercised or granted under the provisions of any public or private act of parliament, or under any other authority, or in any other manner whatsoever in case this act had not been passed" (V). By 23 & 24 Vict. c. 59, s. 3, " where any lands belonging to any such university or college as aforesaid shall at any time have been leased at the best and most improved yearly rent, without fine, no fine, premium or foregift, or anything in the nature thereof, shall hereafter be taken by any such university or college for the grant or renewal of any lease of the same lands." Mortgages by demise. — The above universities and colleges have also power to raise monies for certain purposes, with the consent of the Copyhold Com^nissioners, by way of mort- gage for a term of years determinable, &c. (m). Eton. — By 31 & 32 Vict. c. 118, 24, the new governing body of Eton may make a scheme for running out their leases, so that their property may be let at rack-rent instead of on leases renewable on payment of fines. London University. — The University of London and col- leges not within the acts of 1858 and 1860, must lease "Lease, (Ecclesiastical, College, and ments vested in such college. So, Hospital)." under 19 & 20 Vict. c. 05, the univer- (/) See 18 Eliz. c. 11, ss. 5, 6, ante, sity of Oxford, and the colleges in sect. 14 (h). Under 19 & 20 Vict. c. the said university, and Winchester 88, s. 48, any college at Cambridge or College, may, with the like consent, Eton may, with the consent of the sell or exchange lands, &c. Church Estates Commissioners, sell (m) 21 & 22 Vict. c. 44, ss. 27, 28 or exchange any lands or heredita- 23 & 24 Vict. c. 59, s. 1. 49 *32 BY WHOM TERMS GRANTED. [Ch. I. S. 16. according to their own private statutes, charters and b3'e- laws, and on demising any church property must conform to the restrictions and conditions imposed by such of the Dis- abling or Restraining Statutes as may be applicable (n). Sect. 16. — B// Parish Officers. Leases of small pieces of parish land. — The act 59 Geo. 3, s. 13, provides " that for the promotion of industry amongst the poor, it shall be lawful for the church-wardens and over- seers of the poor of any parish, tvith the consent of ['*32] * the inhabitants in vestry assembled (o), to let any portion or portions of such parish lands as aforesaid, or of the land to be so purchased or taken on account of the parish (^), to any poor and industrious inhabitant of the parish, to be b}^ him or her occupied and cultivated on his or her own account, and for his or her own benefit, and at such reasonable rent and for such terms as shall by the inhabitants in vestry be fixed and determined." Previous law. — Before this act a person, who held under a lease granted by parish officers, was only a tenant from year to year (<^). Leases, how made. — In the making of leases under this act, the terms of it must be strictly observed ; therefore a memorandum not signed by all the parisli officers, or by their order, is not a lease pursuant to the statute (?') ; not only the churchwardens, but also the overseers, must join in the lease (s). An invalid lease made by some of the parish officers, coupled with possession thereunder, will determine a previous tenancy at will, and enable the new lessee to maintain trespass (0* (n) Ante, 30, note (h). (s) Woodcock v. Gibson, 4 B. & C. (o) The consent of the Local Gov- 402 ; riiillii)s v. rearce, 5 li. & C.433 ; emmcnt Board does not appear to be Doe d. Jackson v. Ililey, 10 B. & C. necessary. See tlie concluding pro- 885; Allason t\ Stark, A. & E. 255 ; viso in 4 & 5 Will. 4, c. 70, s. 21. Att.-Gen. v. Lewin, 8 Sim. 30(5 ; Riim- (/») As mentioned in sect. 12, not ball i-. Munt, 8 Q. B. 382; St. Niclio- exceeding twenty acres. las, Deptfnrd r. Sketelilcy, M. 304. (7) Doe fl. IlitxKs v. Terry, 4 A. &E. (0 Wallis v. Delmur, 220 ; Com. L. E. 61 ; Slator v. Trimble, Id. Ashfield V. Ashfield, Sir W. Jon. 157 ; 342 ; Simpson on Infancy (a. d. 1875), Plowd. 418; Slator v. Brady, 14 Ir. p. 27. 1 Contracts of infants voidable. — Contracts of infants are not void, but voulal)le merely. Singer Mfg. Co. v. Lamb, 81 Mo. 221 ; Leitcnsdorfer t;. Hempstead, 18 Mo. 269; Eagle Fire Ins. Co. v. Lent, G Paige, 638; Bool v. 59 *38 . BY WHOM TERMS GRANTED. [Ch. I. S. 19. Mix, 17 Wend. 110, 131 ; Roberts v. Wiggin, 1 N. H. 73; Phillips v. Green, 3 A. K. Marsh. (Ky.) 7, 14 (per Owsley, J.). "Who may avoid. — No one but the infant or his legal representatives can avoid them; creditors cannot. Roberts v. Wiggin, 1 N. H. 73. When and how may affinn. — When the infant arrives at majority, he may expressly or impliedly afSrm them. In Irvine v. Irvine, 9 Wall. 617, 627, it was held that an infant's deed may be affirmed by less solemn acts than are required to avoid it. The court left it to the jury to say whether the infant by taking a lease of the property after coming of age, had not affirmed his prior deed. An infant's conveyance may be confirmed in various ways other than by a contirmatory deed. For example, by oral declarations of sat- isfaction and delay to disaffirm (4; years). Wheaton v. East, 5 Yerg. (Tenn.) 41, 62 ; by receiving part of purchase money, expressing satisfaction and declaring an intention to give confirmatory deed, Ferguson u. Bell's Admr., 17 Mo. 347 ; by recitals in subsequent deed, Phillips v. Green, 5 Mon. (Ky.) 344, 355; by receiving additional money, and failing to disaffirm seasonably, knowing that grantee was makin'g valuable improvements, Highley i'. Barron, 49 Mo. 103, 106, 107. A minor's mortgage may be affirmed after coming of age by his conveying the property expressly subject to the mortgage. Boston Bank v. Chamberlin, 15 Mass. 220. A mere contingent promise to give a confirmatory deed is not an affirmance. Glamorgan v. Lane, 9 Mo. 446. Retaining note given for purciiase money four years by infant feme sole, and afterward by her husband, thirty-one years, including eleven after her death, was held to constitute a ratification in Kline i'. Beebe, 6 Conn. 494. The promise of an infant after obtaining majority to endeavor to procure money and send it to the payee of a promissory note, made during his infancy by his adult partner in the name of the firm, ratifies the note. Whitney v. Dutch, 14 Mass. 457. Effect of failure to disaffirm. — As to whether mere failure to disaffirm within a reasonable time constitutes an affirmance, is a question upon which there is a conflict of authorities. It is held in the United States Supreme Court, and by other liigh authori- ties, that mere failure to disaffirm does not amount to a ratification unless it has continued until the statute of limitations has run. Sims v. Everhardt, 102 U. S. 300; Wells v. Seixas, 24 Fed. Rep. (U. S. Circ. Ct. S. D. N. Y.) 82 ; Prout V. Wiley, 28 Mich. 164. M. D. Ewell, in note to Wells v. Seixas, 24 Fed. Rep. 82, 85, says that the weight of authority agrees with the above decisions, although there are contrary authorities. A deed to an infant may be impliedly confirmed by his conveying the land to a third party after coming of age. Uecker v. Koehn, 21 Neb. 559. Mere silence alone, for reasonable time of course, would not operate as an affirmance. Wilson r. Branch, 77 Va. 65. The time during which a woman is under coverture (at least if under common law disability) or out of the state, would not be reckoned, in computing either tlie reasonable time or statutory period of limitations, [Wilson c. Branch, 77 Va. 65; Birch r. Lin- ton, 78 Va. 584,] necessary to bar the riglit of disaffirmance. Certainly a minor's contract is not voidable after expiration of a reasonable time from majority, thougii the statutory period of limitations has not exjiired : if from ecpiitable reasons, other tiian mere silence, the minor would be estopped from avoiding it. Irvine v. Irvine, 9 Wall. 617,627 (see opinion of Strong, J.) ; Cresinger v. Lessee of Welcli, 15 Ohio, 193; Drake v. Ramsay, 5 Ohio, 252; Ferguson r. Bell, 17 Mo. 347 ; Hostwick r. Atkins, 3 Comstock (N. Y.)53; Huth V. Carondelet Marine Ry. & Dock Co., 56 Mo. 206; Wlieaton v. East, 5 GO Cn. I. S. 10.] LEASES BY INFANTS. *38 rent reserved is not the best obtainable (/>). The lessee can in no case avoid the lease on account of the infancy of the lessor ((?).i The lease is voidable by the infant when he becomes of age (ster r. Ralston, .'31 Barb. (N. Y. Supreme Ct.) 280, 280 (per Pratt, J.). •■' Chancellor Kent says, that the authority of a guardian in socage continues after the age of fourteen if the infant does not elect a new guardian. Byrne V. Van Hoesen, 5 Johns. (\. Y.) 00, 07; Holmes v. Seely, 17 Wend. (N. Y.) 75, 78 (prr Nel.son, Ch. J.). ^ Testamentary guardians. — The father has generally in this coun- try statutory jiower to ai)poiul a testamentary guardian for his children. 64 Ch. I. S. 20.] LEASES BY GUARDIANS. *40 To enable guardians in socage to take especial care of the infant and his property, the law has invested thein, not with a hare authority * only, but also with an [*40] interest^ till the guardianship ceases (i), and to pre- vent abuse, the law has made them accountable to the infant, either when he comes to the age of fourteen years, at which time the authority of the guardians terminates, or at any time after, as the infant thinks fit ; ^ and therefore their authority and interest extend only to such things as may be for the benefit of the infant, and whereof they may give an account. During the time the guardianship exists, a guardian in socage may make leases for years in his own name, as any other who has an interest in lands may do; for he is quasi dominus pro tempore and the lessee may main- tain ejectment on such leases (m). If he makes leases for years to continue beyond the time of his guardianship, such leases seem not to be absolutely void by the infant's coming of age, but only voidable by him if he thinks fit; conse- quently the infant, when he comes of age, may by acceptance of rent, or other act, make such leases good and unavoid- able (.-c). The lease will be determined by the death of the infant, and also by the death of the guardian (_?/). By testamentary guardians. — 2. A testamentarj^ guardian, or one appointed pursuant to 12 Car. 2, c. 24, ss. 8, 9, 10, 11, is the same in office and interest as a guardian in socage, but his authority continues until the infant attains the age of (0 Co. Lit. 87 b; R. v. Oakley, 10 Plowd. 293; Bac. Abr. tit. Leases (I. East, 494; Eyre v. Countess of 9) ; Willis r. Whitewood, 1 Leon. 822 ; Sliaftesbury, 2 P. Wms. 108; R. i'. K. v. Oakley, 10 East, 494; Keilw. Sherrington, 3 B. & Ad. 714; R. v. 4Gb; Cole Ejec. 582. Sutton, 3 A. & E. 597. (x) Bac. Abr. tit. Leases (L 9). (k) Wade v. Baker, 1 Ld. Rayni. (y) Balder v. Blackborn, Brownl. 131; Hutt. IG; Osborn r. Garden, 79. Robinson v. Zollinger, 9 Watts. 1G9, 171; Jones r. "Ward, 10 Yerg. (Tenn.) IGO, 1G8; Corrigan (•. Kiernan, 1 Bradf. (N. Y. Surrogate) 208, 210 (per Curiam). One cannot appoint testamentary guardian for his nephews, Brig- ham V. Wheeler, 8 Met. 127, nor for his grandchildren, Hoyt v. Hilton, 2 Edw. (N. Y.) 202, oven though making bequests or devises to them. ^ A lease by a guardian in socage is voidable after the infant reaches the age of fourteen years by the new guardian if one is then appointed. Snook !•. Sutton, 10 N. J. L. 133; limerson v. Spicer, 4G N. Y. 594. 65 *40 BY WHOM TERMS GRANTED. [Ch. I. S. 2Q twenty-one years (z) ; ^ and it seems clear that a lease by him stands on the same footing as a lease by a guardian in socage, with the additional advantage to the lessor that the period of minority is extended from fourteen to twenty-one years (a). Special guardians, by custom of London and other places, do not fall within the statute (i). By guardians by nature. — 3. Guardians by nature are the father, of his heir, heiress, or heiresses, and in some cases the mother, until the age of twenty-one years (c).'^ They may perhaps possess the power of leasing at will, but not for a term (rf). By guardians for nurture. — 4. The father or mother is guardian of all the children for nurture until they attain the age of fourteen years (e). A guardian for nurture can- not make any leases for years, either in his own name, or in the name of the infant, for he has only the care of the person and education of the infant ; for there may be such (s) 1 Blac. Com. 462 ; Bedell v. (h) Sect. 10. Constable, Vaugh. 179; Roe d. Parry (t) 1 Blac. Com. 461 ; R. v. Thorp, V. Hodgson, 2 Wils. 129; Cole Ejec. Cartli. 384. 583. ((/) Pigot V. Garnish, Cro. Eliz. 678, (a) Smith, L. & T. 59; Roe v. 734. Hodgson, 2 Wils. 129, so far as it is (e) 1 Blac. Com. 401 ; Roacli i-. an authority to the contrary, is not Garvan, 1 Ves. 158; 3 Co. R. 38. law. See Piatt on Leases.Vol. I., p. 370. ^ Termination of guardianship. — A testamentary guardian continues in autliority till full age of male, and full ago or marriage of female. Robinson ?;. Zollinger, 9 Watts (Pa.) 109, 171; Jones v. Ward, 10 Yerg. (Tenn.) 100, 168. Marriage in some states terminates minority of /'eme sole, Tyler on In- fancy and Coverture (2d ed.) sec. 3 ; and in some states she becomes of age at eighteen years (Illinois, Iowa, Minnesota, Missouri, Nebraska, Nevada, Ohio, Oregon, and Vermont). Marriage (ordinarily) ipso facto terminates guardianship of woman, lier husband (at common law) becoming tiiereafter her guardian. Porch v. Fries, 18 N. J. Eq. 204, 207 ; Bartlett r. Cowles, 15 Gray, 445. - Guardians by nature. — A guardian by nature has the care and custody of the infant's {)erson, but im autiu>rity over tiie realty ami personalty. Genet ?'. Tailmadge, 1 Johns. Ch. (N. Y.) 3,4 {per Kent, Chan.) ; Miles v. Boyden, 3 Pick. 213, 217 {per Putnam, J.). For example, a father (as such) cannot collect a legacy payable to his child. Miles v. Boyden, 3 Pick. 213, 217. He cannot as guardian by nature collect a legacy, but may as guardian aj)i)ointed by court. Genet v. Tailmadge, 1 Johns. Ch. (N. Y.) 3, 4. A mother cannot (as guardian by nature) convey infant's projjcrty, Kendall v. Miller, 9 Cal. 591, nor discharge a mortgage lien, Perkins v. Dyer, Ga. 401. Ch. I. S. 20.] LEASES BY GUARDIANS. *41 guardian, though * the infant has no hinds at all, [*41] although in such a case there cannot be a guardian in socage : but such guardian, it seems, may make leases at will (/). 5. Guardians by election. — An infant seised of freehold lands, and being unprovided with a testamentary guardian, may, on attaining fourteen years, elect a guardian to act until he attains twenty -one (,^).^ This guardianship, like that of socage, involves a similar power of leasing the estate of the infant (/i). Guardians appointed by high court. — From a very early period guardians have been appointed by the Court of Chan- cery ^ under a power which by the Judicature Act, 1873, s. 34, is exercisable by the Chancery Division of the High Court.^ Guardians so appointed might, by virtue of 11 Geo. (/) Willis V. Whitewood, Owen, (g) 1 Blac. Com. 402 ; Co. Lit. 87 45 ; 1 Leon. 322; Shopland v. Radlen, b; 2 Atk. 624; 1 Ves. 91. Owen, 115; Cro. Jac. 55, 98; Godb. (A) Bac. Abr. tit. Leases (I. 9); 143 ; 4 Leon. 238 ; Pigot v. Garnish, Pitcairn v. Ogbourne, 2 Ves. 375. Cro. Eliz. G78 ; Bac. Abr. tit. Leases (1.9). ^ Choice of guardians. — The power of an infant to choose a guardian at the age of fourteen is not absolute, but subject to the discretion of the court. A guardian appointed by the court prior to that age will continue till the minor is twenty-one, imless a new one is nominated satisfactory to the court, or he is otherwise removed for good cause shown. Matter of Dyer, 5 Paige (N. Y.) 634; Matter of Nicoll, 1 Johns. Ch. (N. Y.) 25; Dibble v. Dibble, 8 Ind. 307; Ham v. Ham, 15 Gratt. (Va.) 74; Exp. Graffenreid, Harper's Eq. (S. C.) 107. In Perry v. Brainard, 11 Ohio, 442, and Campbell V. English, Wright (Ohio) 119, it was held that guardianship of minor female expired in Ohio, by operation of law, when she became twelve years of age. As we have seen (ante, p. 40, note 2), the right of electing new guardian at fourteen does not exist if the father has appointed a testamentary guardian. - Guardians in chancery. — A guardian in chancery, according to Chan- cellor Kent, has unlimited power over the personalty, but cannot convey the realty absolutely without special authority of court. Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 150, 154. 3 Varieties of guardians. — The principal varieties of guardianship in America, are, guardianship by nature; guardianship by appointment of court (either probate, surrogate, orphans', chancery, etc.), or testamentary guardian- ship. A guardian by nature (as wc have seen) has the care of the person, but virtually no control over the property of the infant, unless also either guardian by appointment of court. Genet c. Tallmadge, 1 Johns. Ch. (N. Y.) 3, 4, testamentary guardian, Corrigan v. Kiernan, 1 Bradf. (N. Y. Surrogate, 208, 210, or guardian in socage, Byrne v. Van Hoesen, 5 Johns. (N. Y.) GQ, 67; 67 *41 BY WHOM TERMS GRANTED. [Ch. I. S. 20. 4 & 1 "Will. 4, c. 65, s. 17, but not otherwise (z), make such leases as the court should direct without fine, which leases (i) See Simpson on Infancy, p. 333. Beecher v. Crouse, 19 Wend. (N. Y.) 306; Holmes r. Seely, 17 Id. 75, 78; Jackson v. Vredenburgh, 1 Johns. (N. Y.) 159, 163 ; Sylvester v. Ralston, 31 Barb. (N. Y. Supreme Ct.) 286, 289. Guardians by appoiutment of court. — Guardians by appointment of court are subdivided into guardians appointed before the age of fourteen, without the election of minor, and guardians appointed thereafter by his elec- tion. The powers of guardians appointed by the court, and the powers of testamentary guardians (of course), are regulated more or less by the statutes of the different states extending or limiting the common law powers of guardians. Power to grant leases. — Generally' they have full authority over the personalty, Field r. Schieft'elin, 7 Johns. Ch. (N. Y.) 150, 154 (pei- Kent, Chan.) ; Chapman v. Tibbits, 33 N. Y. 289, 290; and the control of the realty, but not the power to dispose of it absolutely without special authority of court, Field V. Schieffelin, 7 Johns. Ch. (N. Y.) 150, 154 (per Kent. Chan.); Chapman v. Tibbits, 33 N. Y. 289, 290 (per Brown, J.); Appeal of Stoughton, 88 Pa. St. 198, 201. Generally a guardian has power to lease the realty during the con- tinuance of his authority as guardian, Jones v. Ward, 10 Yerg. (Ttnn.) 160, 168 ; Hughes' Minors' Appeal, 53 Pa. St. 500 ; Appeal of Stoughton, 88 Pa. St. 198, 201 (per Gordon, J., though he cannot without approval of court make an oil lease because that effects the realty) ; Hicks v. Chapman, 10 Allen (Mass.) 463 (oral lease of real estate); Campau v. Shaw, 15 Mich. 227, 232 (jier Christiancy, J.); Palmer v. Oakley, 2 Doug. (Mich.) 433, 465 (per Whipple, J.), and see post. Termination of guardianship. — Guardianship is terminated by the death of the ward, Norton r. Strong, 1 Conn. 65; by the death of the guardian, Jolinson I'. Carter, 16 Mass. 443 ; by the marriage of infant feme (as well as other causes), Brick's Estate, 15 Abb. Pr. (N. Y.) 12; Shutt v. Carloss, 1 Ired. Eq. (N. C.) 232; Porch v. Fries, 18 N. J. Eq. 204; and the husband then becomes (at common law) guardian of his wife, having power to grant leases of her realty, voidable by her upon his deatli or by her heirs upon her death, Porch V. Fries, 18 N. J. Eq. 204, 207 (per Curiam). Duration of leases. — Guardians cannot make leases extending beyond the period of their autiiority valiil against either the ward or a new guardian. Campau ?;. Shaw, 15 Mich, (cannot lease be^'ond life of ward) 227 ; Putnam v. Ritchie, 6 Paige (N. Y.) 390, 399 (per Walwortli, Chan.) ; Snook v. Sutton, 10 N. J. L. 133, and Emerson v. Spicer, 46 N. Y. 594 (voidable by new guar- dian appointed after fourteen) ; Van Doren v. Everitt, 5 N. J. L. 460, 462 (per Kirkpatrick, C. J.). A lease extending beyond the period of a guardian's authority is not void, but voidable merely. It may be afllrmed by the ward, and the ward can recover rent accruing during the guardianship and subse- quently in the same suit. Ross v. Gill, 1 Wash. (Va.) 87. A guardian having but a bare power without an interest in the estate, may make a lease whicli will be valid as between liimself and the lessee. Mansur v. Pratt, 101 Mass. 60, 62 (per Hoar, J.). Guardians' duty. — Ordinarily, it is not only in the power, but is the guarilian's duty to lease Ids ward's realty. Huglies' Minors' Appeal, 53 Pa. St. 5U0, 503 (per Read, J.) ; Jones v. Ward, 10 Yerg. (Tenn.) 160, 168. 68 Cn. I. S. 21.] LEASES BY TUUSTEE FOR INFANTS. *42 may be made to extend beyond minority (k). We have already seen that this statute is not expressly repealed, and it is no doubt ill force so far as the Settled Land Act, 1882, is not in conflict with it. The Settled Estates Act, 1877, s. 44, empowered guar- dians to exercise on behalf of infants all j^owers given by the act, and the words would include the leasing powers, as to which see sect. 4, ante. This enactment also is unrepealed. Guardians for purposes of Agricultural Holdings Act. — The 25th section of the Agricultural Holdings Act, 1883, pro- vides that where a landlord is an infant the county court may, on the application of any person interested, appoint a guardian for the purposes of that act. Sect. 21. — Bi/ Trustee for Infants. Conveyancing Act, 1881. — The Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, by s. 41 provided that : — " Where a person in his own right seised of or entitled to land for an estate in fee simple is an infant, the land shall be deemed to be a settled estate within the Settled Estates Act, 1877." We have already seen what powers of leasing were given by that act (?), and also that s. 49 of the same act further provided that all powers given by the act might be exercised by cfuardians on behalf of infants. * The Settled Land Act, 1882, 45 & 46 Vict. c. 38, [*42] though not repealing the above enactments, appears by ss. 59, 60 to supersede them. These sections are : — (k) Anstey v. Hobson, 1 Sm. & G. (/) Ante, sect. 4. r)Ou. He will be charged with the estimated rental if he fail to lease his ward's lands when it was his duty to do so. A guardian cannot maintain a writ of entry in his own name to recover the ward's realty, but the ward must sue in his own name by his next friend. Jennings r. Collins, 99 Mass. 29, 31. Guardian's personal liability. — Guardians will be personally liable if they take assignments to themselves upon covenants running with the land, the term " guardian " being regarded as a descriptio jjersonariim. Haniicn v. Ewalt, 18 Pa, St. 9. 69 *42 BY WHOM TERMS GRANTED. [Cii. I. S. 21. Settled Land Act. — Sect. 59, " where a person who is in his own right seised of or entitled in possession to land, is an infant, then for purposes of this act the land is settled land, and the infant shall be deemed tenant for life thereof." And by sect. 60, " where a tenant for life, or a person having the powers of a tenant for life under the act (?«)' i^ an infant, or an infant would, if he were of full age, be a tenant for life, or have the powers of a tenant for life under this act, the powers of a tenant for life under this act may be exercised on his behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court, on the application of a testamentary or other guardian or next friend of the infant, either gener- ally or in a particular instance, orders." Section 60 appears to comprise within its terms the case of an infant tenant in fee simple, and therefore somewhat to abridge the powers of guardians. By the act of 1881 as read with the act of 1877, they might themselves lease without any application to the Court; by the act of 1882, an application to the Court would seem to be necessary if the land proposed to be demised should be unsettled, and although guardians are pointed at as being proper persons to make the application, the leasing power is not to be exer- cised as a matter of course by them, but only in case of their being directed to exercise it by the Court. In case the land should be settled, and there should be trustees, such trustees could, it is conceived, exercise the leasing powers without any application to the Court. Management of demised land by trustees. — Trustees acting for infants liave special powers of management conferred upon them by s. 42 of the Conveyancing Act, 1881. Amongst these powers is a power " to make allowances to and arrange- ments with tenants and others, and to determine tenancies, and to accept surrenders of leases and tenancies, and gener- ally to deal with the land in a proper and due course of management." (m) See 8. 58 of tlu' act, giving powers of tlie act to tenants in tail, and other limited owners. 70 Cii. I. S. 22.] LEASES BY Oil FOR MARRIED WOMEN. *43 Sect. 22. — By or for Married Women} Married "Women's Property Act. — The Married Women's Property Act, 1882, 4o & 4G Vict. c. 75, repealing and with extensive amendments re-enacting the Married * Women's Property Act, 1870 («), places married [*-13] women in respect of making leases of land not sub- ject to marriage settlement as well as in respect of their sepa- rate property generally (leases, however, being nowhere specitically mentioned in the act), in the same position as if they were unmarried.^ This act has abolished the old com- mon law doctrine that a wife had no legal existence apart from her husband. (n) Tiie act of 1870 appears to unsettled land under the term " prop- have allowed independent demises of erty," in ss. 1, 7, and 8. 1 Changes in rights of married women. — IModern American law con- curs with the English in modifying materially the status of married women. In some tilings slie has a separate legal existence. The changes have not been uniform. To understand her present status, it is necessary first to un- derstand tlie common law, and then the special statutory changes in the sev- eral states (for the common law still prevails except so far as it has been expressly changed). Harris, in his treatise on Contracts by Married Women (sec. 5), says that Mississippi was the pioneer state in introducing the changes of the new system. She passed the first statute Feb. 15, 18o9, following it by another, Feb. 28, 1846. New York, Pennsylvania, and other states followed in 1848 ; Ten- nessee, Kentucky, New Hampshire, Michigan, and Vermont in 1850. Statutes have since been passed for all the other states, territories, and federal district. 2 The present la-w^ in Massachusetts. — In Massachusetts it is pro- vided that " a married woman may make contracts . . . as if she were sole, except . . . with her husband." Pub. Sts. (1882) Ch. 147, sec. 2. She can- not'with him. Wilson v. Bryant, 134 Mass. 291 ; Gay i'. Kingsley, 11 Allen, 345 ; Bowker v. Bradford, 140 Mass. 521 ; Roby v. "piielon, 118 Mass. 541 ; Woodward v. Spurr, 141 Mass. 28o. Marriage in that state nullifies a contract with a husband previously made, Abbott V. Winchester, 105 Mass. 115, unless made in contemplation of mar- riage, Miller v. Goodwin, 8 Gray, 542; Pub. Sts. Ch. 147, sec. 2. Husband and wife cannot transfer property to each other, except that husband may convey personalty to a limited amount. Pub. Sts. Ch. 147, sec. 2, necessary for her own use, etc. ; and if he give her a piano, it is a question for the jury whether it is necessary considering her station in life, etc. Hamilton v. Lane, 138 Mass. 358. He may make a donatis causa mortis to her, Marshall ;'. Jaquith, 134 Mass. 138; or convey realty indirectly to her through a third person, Motte v. Alger, 15 Gray, 322, 323. Marriage no longer operates as a gift of her personalty or use of realty to 71 *43 BY WHOM TERMS GRANTED. Ch. I. S. 22. Lease by husband and wife. — At common law a lease hy deed made by the husband and wife of the wife's freeholds, was good during the coverture (o).^ Upon the death of the husband in the wife's lifetime it became voidable hj her; and might be confirmed by her acceptance of rent becoming due after the husband's death, or the like (j»), her executors having power to sue for such rent (^q). If the husband sur- vived his wife and became tenant by the curtesy, the lease was good as against him during his life or until the end of the term, which first happened. But if he did not become tenant by the curtesy (not having ever had any issue by his wife which might by possibility have inherited), the lease, upon the wife's death, became void as against her heir at law. When the husband did not become tenant by the curtesy, he (o) AViscot's ease, 2 Co. R. 61 b ; Cro. Jac. 5G3 ; Doe d. Collins r. Wel- Bac. Abr. tit. Leases (C. 1) ; Tolcr v. ler, 7 T. R. 47B; Parry v. lliiuUe, 2 Slater, L. R., 3 Q. B. 42 ; 37 L. J., Q. Taunt. 180; 2 Wins. Saund. 180, note B. 33. (9). (;)) Henstead's case, 5 Co. R. 10; (7) Toler v. Slater, L. R., 3 Q. B. Co. Lit. 55 b; Greenwood v. Tyber, 42; 37 L. J., Q. B. 33. her husband. Pub. Sts. Ch. 147, sec. 1. Husband and wife since St. 1885, c. 237, are no longer joint tenants (with exclusive rifjhts in husband. Pray v. Stebbins, 141 Mass. 211)) of realty conveyed to them jointly. She has the entire control of her own realty and personalty, and can con- vey it without the joinder or consent of her husband, subject to liis rifjht of curtesy if they have had issue born alive. Pub. Sts. Ch. 147, sec. 1 ; Libby V. Chase, 117 Mass. 105. 1 Wife's realty at common laAW. — At common law the control of the wife's realty and the rents and profits thereof belonged to the husband during coverture. Bartlett v. Cowles, 15 Gray, 445, 440; Chipp v. Stoughton, 10 Pick. 402. And they migiit be levied u])on for his debts. Litchfield v. Cud- worth, 15 Pick. 23. For them the husband could sue in liis own name or jointly with his wife. Clapp v. Stoughton, 10 Pick. 402, 409 {per Wilde, J.) ; Decker v. Livingston, 15 Johns. (N. Y.) 479, 482 {per Spencer, .1.). For rents accruing prior to the coverture, although the husband had right to reduce theui to possession, he coulil only sue jointly witii liis wife. Decker V. Livingstone, supra. Ordinarily, uncollected rents accruing during cover- ture belonged to the personal representative of the deceased husband, and could not be collected by the surviving wife. Clapp p. Stoughton, 10 Pick. 402, 409. Un(U)llected rents of jiroporty demised l)V her before marriage might be collected by lier after her lius])and's deatii. D.inicds (;. Richardson, 22 Pick. 505, 570. Such rents, until collection, being mere choses in .action, {]ier Shaw, C .T.), would rem;iin (like otlier personal property of the wife, Hayward v. Ilaywani, 20 I'ick. 517, not exjjressly or implieilly reduced to possession by the husband) property of the wife notwithstanding the coverture. 72 Ch. I. S. 22.] LEASES BY OR FOR MARRIED WOMEN. *43 could not distrain or sue for the rent whicli became due after his wife's death, under a demise made by them both or by him on her behalf (?').i Without deed. — A lease by husband and wife without deed was void as against the surviving wife, for it could not bo said to be her lease (s), but it was good during the coverture if the term continued so long (^). By husband alone. — If a husband seised of lands in right of his wife made a lease for years by deed, the term did not become void on his death, but only voidable by the entry of the widow (w).^ By wife alone. — Leases made by a wife without the con- currence of her husband and not in pursuance of an express power, were at common law, absolutely void,^ and could not be confirmed (.t-), and a lessee taking a lease from an un- (r) Howe v. Sorrott, 4 H. & N. (f) Batenian v. Allen, Cro. Eliz. 723; 28 L. J., Ex. 325; Hill v. 438; 2 Co. K. 61 b. Saunders, 2 Bing. 112; S. C. (in (m) Jordan f. Wykes, Cro. Jac. 332; error), 4 B. & C. 529. Smallman v. Agborow, Id. 417; 3 (.s) Walsal I'. Heath, Cro. Eliz. 656; Bulst. 272; Browning and Bceston's Greenwood v. Tyber, Cro. Jac. 564; case, Plowd. 65. Dyer, 91 b, 146 b; 2 Wms. Saund. (.r) Goodrightr?. Carter y.Straphan, 180 a, n. Cowp. 201 ; Lofft, 763. 1 And the husband, during coverture, could not distrain in his own name for rent accruing prior to the coverture, without joining his wife. Decker v. Livingston, 15 Johns. (N. Y.) 479, 482, although he might for rent accru- ing subsequently (per Spencer, J.). - Deeds of married -women. — The separate deed of a married woman at common law was not only voidable, but absolutely void. Ela r. Card, 2 N. H. 175, 176; Fowler v. Shearer, 7 Mass. 14; Concord Bank v. Bellis, 10 Cush. 276. And even those statutes which allowed her to join with lier hus- band in deeds of her own property were innovations upon the common law. Wliitbeck V. Cook, 15 Johns. (N. Y.) 483, 490, 491 (per Spencer, J.). Such deeds, while they enabled her to divest herself of her interest in the land, did not enable her to bind herself by the covenants. The covenants bound her husband only. Whitbeck v. Cook, 15 Johns. (N. Y.) 483, 490, 491. In short, prior to the passage of the enabling acts of the several states, a married woman was absolutely incapable of contracting. Parsons v. Plaisted, 13 Mass. 189; 1 Story on Contracts (5th ed.) sec. 144. ^Leases by married ■women. — Leases by a married woman, without the concurrence of her husband, were, at common law, absolutely void. Murray v. Emmons, 19 N. H. 483. It has been held that a lease by a married woman might be sustained as a lease of the husband made under an implied agency. Doe d. Andrews ?-•. Taylor, 5 Allen (N. B.) 144, 146. But in Melley ;;. Casey, 99 Mass. 241, where a married woman had made a lease for three years of her separate 73 *44 BY WHOM TERMS GRANTED. [Ch. I. S. 22. married woman became bound, after the marriage, to pay the rent to the husband (^). Before marriage. — But a wife might, before marriage, in exercise of an express power, grant valid leases without the concurrence of her husband. [*44] * Lease of wife's leaseholds. — As to the wife's lease- holds, at common law a husband might dispose of all Ills wife's interest therein b}- demise : ^ so he might dispose of the interest in a term which they had jointly (2). He might also dispose of part of his wife's interest: thus he might demise for a part of the term rendering rent, and the rent would go to his executor or administrator, though his wife survived (a), notwitlistanding the reversion survives to the wife (6) ; but as to the residue of the term, whereof the hus- band made no disposition in his lifetime, the wife, if she survived, was entitled to it : because as to that, the law was left to take effect, as it would have done for the whole, if he had not prevented it by such his disposition of part (c). If the husband died before the wife, he could not bequeath her chattels real bj- will (tZ), but if he survived lier they became his own absolute property {e}. If the husband, having an (y) Tracy v. Dalton, Cro. Jac. 617. (/)) Sym's case, Cro. Eliz. 33. (2) Com. Dig. tit. Baron and Feme (f) Bac. Abr. tit. Baron and Feme (E. 2). (C. 2) ; Sym's case, Cro, Eliz. 33. (a) Id.; Co. Lit. 46 b, .351 a; 1 (^0 Plowd. 418. Roll. 343, 1. 15; Bla.xton v. Heath, (f) Co. Lit. 300 a, 351 a, n. (1). Poph. 145. property, and subsequently had joined with her husband in conveying the prop- erty expressly subject to the lease, the court held the lease was void, and the grantee's title under the the deed was clear from the incumbrance of the lease. This decision was in 1868, and the law of Massachusetts has since been changed (Sts. 1874, Ch. 184, now Pub. Sts. Ch. 147, sees. 1, 2, 3, 4, 5, &c.), so that a wife has now full power over her own property, except that she cannot contract with her husband, &c. In Alabama, a married woman, if her disabilities have been removed by chancellor's decree under the code, may now sue in her own name upon leases of lier own property. Warren v. Wagner, 75 Ala. 188. And in Maine, a lease by a wife to her husband is valid. Freeman v. Underwood, (W) Me. 220, there being no disability in that state to prevent lier contracting /KJ/ia^H/fi with her husbiuid. 'Lease to wife. — A lease to the wife enured to the husband's benefit unless he dissentet'/- Dewey, J.), in Hi.x V. Whittemore, 4 Met. (Mass.) 545, 547. Contracts made by persons while under guardianship, as insane, or as drunkards and spendthrifts, are absolutely void, Griswold c. Butler, 3 Conn. 227, 231; Westmoreland v. Davis, 1 Ala. 299, 301 {per Collier, C J.) ; Wait V. Maxwell, 5 Pick. (Mass.) 217; Fitzhugh v. Wilcox, 12 Barb. (N. Y. Supreme Ct.) 235; Wadsworth v. Sherman, 14 Id. 169; Pearl v. M'Dowell, 3 .1. J. Marsh. (Ky.) 658 {per Buckncr, J.); Mason v. Felton, 13 Pick. (Mass.) 206; because the law lias ])laced their estates in the hands of guar- dians, and conclusively presumes them incapable of contracting, a presump- tion which does not arise when they are not under guardianship. Wharton says, " When there is no capacity to contract, — ;.e. in cases of idiocy and frenzy,- — ^then there is no contract, for want of a consenting mind." 1 Whart. Law of Contratjts, sec. 102. Contracts for necessaries made by insane jx-rsons, like similar contracts made by infants, are not voidable. La Rue v. Gilkyson'a Ex'r, 4 Pa. St. 376; Van Horn r. Hann, .39 N. .T. L. 207 ; even though made while under guardian- ship, Sawyer v. Lufkin, 56 Me. 308. ^ A contract with an insane person, though bona jUlc/xi injurious to him, 76 Ch. I. S. 23.] LUNATICS AND THEIR COMMITTEES. *45 impeached on the ground of previous or subsequent insan- ity (m).^ By committees of lunatics. — By 16 & 17 Vict. c. 70, s. 113, the committee of a lunatic may make, surrender and renew leases in the name and on the behalf of the lunatic, -under the direction of the Lord Chancellor.^ So he may execute conveyances, mortgages and other deeds and contracts in the name and on behalf of the lunatic, as the Lord Chancellor shall order (w). So he may in like manner make leases or underleases for years, for the erection of buildings or for repairing existing buildings, or otherwise improving tlie prop- erty, or for farming or other purposes (o) ; and ''every sur- render, lease, agreement, deed, conveyance, mortgage or other disposition granted, accepted, made or executed by (m) 1 Dow, Pari. Cas. 177 ; Fry, ss. (o) Sect. 129; 18 & 19 Vict. c. 13. 161, 162. General Order in Lunacy, 7th Novem- (n) Sects. 116-138. ber, 1853, No. 54. and not made in a lucid interval, is voidable, even though contracting party were not put upon inquiry. Seaver v. Phelps, 11 Pick. 304. And surely it is voidable if he was. Lincoln v. Buckniaster, 32 Vt. 652. Imbecility, not amounting to lunacy or idiocy, alone is not sufficient to render a contract voidable. Odell v. Buck, 21 Wend. (N. Y.) 142 ; Jackson V. King, 4 Cow. (N. Y.) 207. But imbecility concurring with inadequacy of price may be sufficient to make it so. Tracey v. Sacket, 1 C)hio St. 54 ; Cruise V. Christopher's Adni'r, 5 Dana (Ky.) 181 ; Cadwallader r. West, 48 Mo. 483, And surely it will if combined with undue influence. AVhitehorn v. Hines, 1 Munford (Va.) 557 ; Buffalow v. Buffalow, 2 Dev. & B. Ch. (N. C.) 241. 1 Contracts made in lucid intervals are valid ; but if the insanity be of a confirmed or habitual character, the burden is upon the party alleging the lucid interval to prove it. 1 Whart. & Stillc's Med. Jur. (4th ed.) sec. 2. Latent insanity does not avoid contract, if at time of executing it lunatic possessed a contracting mind. 1 Whart. Law of Contracts, sec. 107. " The question of mental incompetency rarely presents itself detached fiom that of undue influence." Same, sec. 104, Wills executed by insane persons under guardianship, if restored or other- wise having a sufficiently sound mind, are valid. Stone i\ Damon, 12 Mass. 487; Breed v. Pratt, 18 Pick. 115, 117; Crowninshield z;. Crowninshield, 2 Gray, 524, 531 (per Thomas, J.). It is otherwise as to contracts. '^Leases by committees, &c. — Doubtless, a guardian or committee of insane person can grant leases under directions of a court of chancery. Bus- well on Insanity, sec. 114. A committee is a bailiff or agent of the court. Matter of Otis, 101 N. Y. 580; Shaffer i-. List, 114 Pa. St. 486, 489 {per Ster- rett, J.); Lane v. Schermerhorn, 1 Hill (N. Y.) 97, 98 {per Bronson, J.). Ordinarily he has power to grant leases (subject to statutory regulations of different states). Hicks v. Chapman, 10 Allen, 463, 464. But he cannot if expressly or impliedly restrained by statute. Treat v. Peck, 5 Conn. 280, 284. 77 *46 BY WHOM TERMS GRANTED. [Ch. I. S. 24. virtue of this act shall be valid and legal to all intents and purposes, as if the person in whose name or on whose behalf the same was granted, accepted, made, or executed, had been of sound mind, and had granted, accepted, made or executed the same" (p). It seems to be the practice in every case, first to obtain the approval of a master in lunacy to the pro- posed lease, and then an order of the Lords Justices confirm- ing the master's report, and directing the lease, as settled and approved of by the master, to be executed by the [*46] * committee, upon the lessee executing a counterpart. In Wynne, In re (5'), however, eighteen months' pos- session under an agrreement for a lease with the agfent of the committee was held sufficient to entitle the tenant to specific performance, although the sanction of the master in lunacy had not been applied for. Mode of execution. — The ordinary form of execution would seem to be the execution by the lunatic by his com- mittees, but an execution by the committees themselves is sufficient if the lunatic be made a party to the lease (r). Repairs and allowances. — By 15 & 16 Vict. C. 48, commit- tees of lunatics may direct repairs and improvements of or upon the land of lunatics, or make allowance to the tenant executing the same. Sect. 24. — By Persons under Duress or Intoxicated. By persons under duress. — All deeds, bonds or grants made by persons under duress are voidable by the parties them- selves that make them, or others that have their estates, &c. Duress of imprisonment is deiined to be where one is man- ifestly imprisoned or restrained of his liberty contrary to law, until he executes a bond or deed to another (.s). Tlio impris- onment must be illegal, otherwise there is no duress (Q. (p) Sect. 1.39. of Hall, V. C, L. R., U Ch. D. 240; (7) L. R., 7 Ch. 220; 20 L. T. 400; 40 L. J., Ch. 03(5; 42 L. T. 486; 28 W. R. 348. \V. R. 770. (r) Lawrie v. Locs, L. R. 7 App. (s) Knight ami Norton's case, 3 Cas. 10, aflirminff the decision of the Leon. 230. Court of Appeal, and reversing that (0 2 Inst. 482; 11 Q. H. 117. 78 Cii. I. S. 25.] LEASES BY CONVICTS. *47 Duress of goods (especially under a distress) is not suffi- cient (w). By persons in a state of intoxication. — Intoxication is a good defence in an action on a deed, lease or grant, or an agreement, provided the party was in such a state of intox- ication as not to know what he was doing (a;). But the con- tract is voidable only and not void, and therefore may be ratified when the party becomes sober (?/). If through the contrivance and management of the party obtaining the deed the grantor is thrown into intoxication for the purpose of prevailing on him to execute the deed, relief may be admin- istered, on the ground of fraud (2), by the Chancery Divis- ion of the High Court (a). * Sect. 25. — By Convicts. [*47] At common law, on a conviction for felony, real estate became forfeited to the crown, but not without attainder (5). Under a demise, therefore, by a felon after attainder, the lessee had a good title against all but the crown and the lord of whom the land was held (c) ; and the crown was said to be entitled to hold during the felon's life (cT). The crown's right of entry might be exercised or enforced without any inquisition being taken or oiEce being found, or actual re-entry (g). An assignment by a felon just before trial, without consideration or value, was void as against the crown (/). But a bona fide assignment made before the day (h) Skeate v. Beale, 11 A. & E. (a) Judicature Act, 1873, s. 34, 983; Gulliver v. Cozens, 1 C. B. 788; subs. 3. Kearns v. Durell, 6 C. B. 596; 6 D. & (6) Cole Ejec. 573. L- 357. ((•) J)oQ (2. Evans or Griffiths ?'. (x) Gore V. Gibson, 13 M. & W. Pritchard, 5 B. & Ad. 765; Cole 623 ; Pitt V. Smith, 3 Camp. 31 ; But- Ejec. 573. ler V. Mulvihill, 1 Bligli, 137. (d) Chamb. L. & T. 46. (y) Matthews v. Baxter, L. R., 8 (e) 22 & 23 Vict. c. 21, s. 25. Ex. 132 ; 42 L. J., Ex. 73. (/) Morewood i-. Wilks, 6 C. & P. (^) Johnsons. Medlicott, 3 P. Wms. 144; Shaw r. Bran, 1 Stark. R. 319; 139; Cory v. Cory, 1 Ves. 19; Nagle In re Saunders, 4 Giff. 179; 32 L. J., V. Baylor, 3 Dru. & W. 60 ; Say v. Ch. 224. Barwick, 1 V. & B. 195; Butler v. Mulvihill, 1 Bligh, 127. 79 *48 BY WHOM TERMS GRANTED. [Cii. I. S. 25. of trial (even after the commission day, in consideration of a pre-existent debt or other good consideration, Avas valid (^). Regulation of felon's property under 33 & 34 Vict. c. 23. — The property of persons who have been convicted of treason or felony is now entirely regulated by an act passed on the 4th of July, 1870 (33 & 34 Vict. c. 23), by which forfeiture to the crown is abolished. By sect. 1 of this act " no con- fession, verdict, inquest, conviction or judgment of or for any treason or felony or felo de se, shall cause any attainder or corruption of blood, or any forfeiture or escheat." By sect. 9 the crown may commit the custody and management of the property of any convict, i.e. "any person against whom judgment of death or penal servitude shall have been pronounced or recorded upon any charge of treason or felony " (/t), to an administrator, upon whose appointment "all the real and personal property, including choses in action, to which the convict was at the time of his convic- tion, or shall afterwards while he shall continue subject to the operation of the act, become or be entitled, shall vest in such administrator for all the estate and interest of such con- vict therein " (sect. 10). By sect. 8 the convict is disabled to sue or alienate property, and by sect. 12 " the adminis- trator shall have absolute power to let, mortgage, sell, con- vey and transfer any part of such property as to him shall seem fit." By sect. 18 the property reverts to the convict or his representatives on the completion of his sentence, pardon or death. By sect. 21 an interim curator may, if there be no administrator, be appointed by justices ; and by sect. 24 such interim curator may bring and defend actions, and may " receive and give legal discharges for all rents," &c. [*48] Property acquired by a convict " during the * time wliich he shall be lawfully at large under licence," is, b}^ sect. 30, exempted from the operation of the act. Outlaws. — A lease made ])y an outlaw before an inqui- (<7) Perkins r. Brndloy, 1 Ilaro, from forfeiture by the act, Imt arc 219; Whitaker ?•. VVishey, 12 C H. otiicrwiso imaffected by its j)rovision8 44 ; Cliowne r. Baylis, ;51 Beav. .'Jal. relatiii}; to the adiniiiistration of prop- (//) Sect. (i. Persons not comprised erty. within this definition are exempted 80 Ch. I. S. 2G.] BY EXECUTORS AND ADMINISTRATORS. *48 sition taken will prevent the title of the crown, if it be made bona fide and upon good consideration, but not if it be in trust for the outlaw only (<). The grant of a person out- lawed in a personal action was good against all but the crown (/c) ; but outlawry in civil proceedings, which had long been obsolete, was abolished by the Civil Procedure Acts Repeal Act, 1879 (42 & 43 Vict. c. 59). The Act of 1870, above mentioned (see sect. 1), does not affect "the law of forfeiture consequent upon outlawry in criminal pro- ceedings.'' Sect. 26. — By Trustees of Bankrupts. A trustee of a bankrupt seised in fee may demise to the same extent as the bankrupt could. A trustee of a bank- rupt lessee, if he do not disclaim the lease, and if the lease contain no clause of forfeiture on bankruptcy of the lessee has a similar power (J)} Sect. 27. — By Executors and Administrators. A lease personal property. — A lease for a term of years, however long, is personal property in the hands of the lessee by the law of England, and as such vests in the executor.^ In Scotland, however, it is otherwise. By the law of Scot- land a lease vests in the heir of the lessee at his death (jri). (i) Att.-Gen. v. Freeman, Hardr. (k) Shep. Touch. 232. 101; Hammond's case, Id. 176; 2 (/) See Ch. VII., Sect. 8, /w.s^ Roll. Abr. 808, pi. 7 ; King d. Poe v. (m) See Bain v. Brand, L. R., 1 Ball, Ridg. Lap. & Scho. 1)1. App. Ca. 762. ^ In New Bruns'wick an assignee cannot terminate his liability for rent by disclaimer until the close of the current year. Until then the lessor's claim for rent is a privileged debt. McLaughlin v. McLeod, 3 P. & B. (N. B.) 539. 2 Leases for years are personalty. — Wiley's Appeal, 90 Pa. St. 173; Green v. Green, 2 Redf. (X. Y. Sur.) 408; Murdock v. Ratclilf, 7 Ohio, 119; Reynold's Heirs v. Commissioners, &c., 5 Ohio, 204; Lewis's Ilcirs v. Ringo, 3 A. K. Marsh. (Ky.) 247 ; Faler v. McRae, 56 Miss. 227 ; Webster v. Parker, 42 Miss. 405; Dillingham v. Jenkins, 7 S. >& M. (Miss.) 479, 487; Lessee of Bisbee v. Hall, 3 Ohio, 449, 465; Pugsley i'. Aiken, 11 N. Y. 494; Hollen- back V. McDonald, 112 Mass. 247, 249; Gay, Petitioner, 5 Mass. 419; Chap- man j;. Gray, 15 Mass. 439, 445; Mayor v. Mabie, 13 N. Y. 151, 159; People V. Westervelt, 17 Wend. (N. Y.) 674. At common law it mattered not how long the term might be : if it was a term for years, it was personalty and 81 *48 BY WHOM TEEMS GRANTED. [Cii. I. S. 27. Lease by executor. — Executors and administrators may dispose absolutely of terms of years vested in them in right of their testators or intestates,^ or may lease the same for any fewer number of years ; and the rents reserved on such leases passed to the executor, or (People v. "Westervelt, 17 Wend. (N. Y.) 674, and Lessee of Bisbee v. Hall, 3 Ohio, 449) might be sold on execution as a chattel without right of redemption, and would not pass as realty by levy on land. Chapman v. Gray, 15 Mass. 439, 445. In Gay, Petitioner, 5 Mass. 419, it was held that a lease for 999 years might be sold by administrator as a chattel without a license. There are mr.ny cases where leases for ninety-nine years have been lield chattels. Faler v. McRae, 56 Miss. 227; Dillingliam v. Jenkins, 7 S. & M. (Miss.) 479, 487. And even though renewable, Reynold's Heirs v. Commissioners, &c., 5 Ohio, 204; or even if renewable forever, Murdock v. Ratcliff, 7 Ohio, 119. But it has since been held tliat under the statute a lease for ninety-nine years, in Oliio renewable forever, was for certain purposes realty. Northern Bank V. Roosa, 13 Oluo, .334; Loring v. Melendy, 11 Ohio, 355. In Massachusetts the rule has been changed by statute, and there, when land is demised for one hundred years or more, it shall be regarded as an estate in fee simple so long as fifty years remain unexpired. Pub. Sts. Ch. 121, sec. 1. A life estate may be levied upon as realty. Chapman v. Gray, 15 Mass. 4.39. In Dillingham v. Jenkins, supra, p. 487, Sharkej', C. J., said, " A lease for ninety-nine years is of no higher dignity tlian a lease or term for one year." Tiie consequence is that widow and heirs cannot bring specific i)erform- ance upon a renewable lease. Reynold's Heirs v. Commissioners, &c., 5 Ohio, 204. Neither can they eject a subtenant of an administrator. Lewis's Heirs v. Ringo, 3 A. K. Marsh. (Ky.) 247. 1 Ordinarily he should do so and let the assignee take the risks as to the value of his jjurchase. Schouler's Ex'rs & Admr's, sec. 3-53. The executor is liable upon tlie covenants of the deceased lessee, even though beneficial interest have passed to a survivor. Burns c. Brjan, 12 App. Cas. 184. If he renew a renewable lease, he will be charged with wliole term as assets. Green r. Green, 2 Redf. (N. Y. Sur.) 408. Executors, if they occupy the demised premises, will be personally liable for tlie rent. Smiley v. Van Winkle, 6 CaJ. 605, 606 {per Murray, C. J.). In England an executor is personiiUy liable if he take possession up to the lotting value of the premises (In re Bowes, 37 Ch. 1). 128), but beyond that he is not liable except so far as he has assets (per North, J., p. 132). An executor is not liable beyond tlie amount of assets, if lie waive the term and refuse to occupy. Martin v. Black, 9 Paige (N. Y.) 641, 644 (per Walworth, Chan.). In this respect he is like a receiver (^per Walworth, Ciian., supra), or a voluntary assignee wlio, if he declini'S to accept term, is not personally liable. Lewis ii. Burr, 8 Bosw. (N. Y. Superior Ct.) 140; Jour- neay v. Brackley, 1 Hilt. (N. Y. Sur.) 447; Pratt v. Levan, 1 Miles (Pa.) .158. But if he accept and occupy, is liable. Young v. Peyser, 3 Bosw. (N. Y. Superior Ct.) .308; Astor v. Lent, Id. 612. In Kngland a gift in will of k-ase will not pass a freehold interest thougli subject to rent charge. In re Knight, 'M Ch. D. 618. Ch. I. S. 27.] BY EXECUTORS AND ADMINISTRATORS. *49 are assets in their liands, and go in a course of administra tion (w), bnt this is an exceptional mode of dealing with the assets, and those who take a title in that way must take it subject to the question whether it was the best mode of administering the assets (o). Executors should take care not to enter into any informal agreement for a lease which cannot be enforced ; otherwise they may perhaps be charged with any loss, as arising from a wilful default (p). * Option of purchase. — Executors and administra- [*493 tors, it being their duty to realize within a reasonable time, ma}^ not grant a sub-lease with option of purchase within a fixed time. If they do, the next-of-kin can prevent the option being exercised. This was held by the Court of Appeal in the very clear but hard case of Oceanic Steam Navigation Co. v. Sutherbury (^), in which an administrator possessed of a term of 75 years granted a sub-lease for 21 years, with option of purchase within the first 7 years, although the whole transaction was for the benefit of the estate, and the sub-lessees had expended large sums in build- ing in reliance on their supposed power to purchase. Lease before probate. — An executor may demise before probate, because his appointment, estate, and power are derived from the will, of which the probate is merely evi- dence (r) ; but an administrator cannot make a lease until he has obtained letters of administration (s). Lease by one of several. — A lease by one of several exec- utors is as efhcacious as their joint demise (^), although it purport to be the grant of all (it) ; and the same rule applies to administrators (a;). It seems that if three executors demise (n) Bac. Abr. Leases (I. 7). tors (A.); 1 Wms. E.xors. 291, 595 (o) Per Jessel, M. R., in Oceanic, (6th ed.). &c., Co. V. Sutherbury, L. R., 16 Ch. (.s) Wankford r. Wankford, 1 Salk. D. at p. 243. .301 ; Hudson v. Hudson, 1 Atk. 461 ; (p) Connolly v. Connolly, 17 Ir. 1 Wms. Exors. 595 (6th ed.). Ch. R. 208, M. R. " (t) Pannel v. Fcnn, Cro. Eliz. 347 ; (q) L. R., 16 Ch. D. 236; 50 L. J. Doe d. Hayes v. Sturges, 7 Taunt. Ch. ,308; 43 L. T. 743; 29 W. R. 217. 236. (u) Simpson v. Gutteridge, 1 Madd. (r) Roe d. Bendall v. Summerset, 616. 2W. Blac. 692; Roll. Abr. tit. Execu- (.r) Jacomb r. Ilarwood, 2 Ves. sen. 265. *50 BY "WTIOM TERMS GRANTED. [Cii. I. S. 27. to one of them at a fixed rent, sueli rent may be distrained for(^). Assent to bequest of lease. — Previous to a party taking a lease from an executor, he should ascertain whether the j^roperty has been specifically bequeathed by the will ; and if so, whether the executor has assented to such bequest, for if so his right to grant the lease is gone, and the legal interest in the property is vested in the legatee ; and conse- quently, as the executor has nothing to grant, the lease will be void, and the legatee may maintain ejectment (s). It is well settled, however, that assent to a bequest for life of a lease is an assent to the bequest over (a). Assent of executor to bequest to himself. — If a lease be specifically bequeathed to an executor for his own use, his assent to the bequest is still necessary, and if his acts are referable to his character of executor, the}'' are no evidence of assent (5), which must be shown by some act referable to his character of beneficial owner, as by a disposition of the lease in his own will ((?). Where a party possessed of a term as administrator makes a lease and appoints an executor and dies, his executor is entitled to the rent, and not the admin- istrator de bonis non of the intestate ((?). [_*50] * Leases by an executrix who is a married -woman. — The husband of a woman who is an executrix has at common law a joint interest with her in all the effects of the deceased ; and is enabled to assume the whole administration, and to act in it to all purposes without her consent ; but the wife cannot do any act as executrix or administratrix with- out her husband's concurrence. A demise by her alone, therefore, cannot at common law be supported ; and in all leases made in respect of such executorship and administra- (y) Cowper v. Flotclicr, G B. & S. (n) Stevenson ?". Mayor of Liver- 464 ; 34 L. J., Q. B. 187. pool, L. U., 10 Q. B. at p. 84. (z) Paramour v. Yardley, I'lowd. (/)) Doe d. lliiycs v. Sturges, 7 639; Younp v. Holmes, 1 Stra. 70; Taunt. 717. Doe fl. Lord Say and Sele v. fiuy, 3 (r) Fenton v. Clcgg, Exch. 080. E!i8t, 120; 4 Plsp. 154; Johnson v. (d) Drew ;•. Bayly, 2 Lev. 100; Warrick, 17 C. B. 510; Fenton v. Norton y. Harvey, 1 Vcntr. 259. CletTfT, 1) Exeh. 080; Doe r/. Sturgess V. Tatchc'll, 3 B. & Ad. (i75. 84 Ch. I. S. 28.] BY MOKTGAGORS AND MORTGAGEES. *50 tion, the husband must be the demising pin'ty (e). By the 18th section of the Married Women's Property Act, 1882, a married woman " who is an executrix or administratrix, alone or jointly with any other person, of the estate of any deceased person, or trustees, alone or jointly, of property subject to any trust, may sue and be sued without her husband, as if she were a feme sole." This section gives no express power to demise alone. Whether it gives such a power impliedly is very doubtful. It is conceived on the whole that it does not, and that the common law rule above stated is in full force. Sect. 28. — By Mortgagors and Mortgagees. (a) Generally. Leases before the mortgage. — Leases granted by a mort- gagor before the mortgage are valid as against the mortgagee, who is only an assignee of the reversion and its incidents (/).^ The tenants under such leases may safely continue to pay their rents to the mortgagor until they receive notice of the mortgage, and are requested to pay their rent to the mort- gagee (^).2 (e) Cham, on Leases, 85; Arnold (/) Rogers r. Humphreys, 4 A. & V. Bidgood, Cro. Jac. 318; Thrustout E. 290, 313; Cole Ejec. 473. d. Levick v. Coppin, 2 W. Blac. ((/) 4 Ann. c. 16, s. 10 ; Cook v. 801. Moylan, 1 Exch. 07 ; 5 D. & L. 701 ; Trent v. Hunt, 9 Exch. 14. ^Mortgages: subsequent, and prior to lease. — A mortgagee under a mortgage, given subsequently to a lease, is an assignee (or mortgagee) of the reversion, simpli/, Comer v. Sheehan, 74 Ala. 452, 457 ; Joplin v. Johnson, 2 Kerrs. (N. B.) 541; Johnston v. Riddle, 70 Ala. 219, 225 (per Somerviile, J.). He certainly has no greater rights than the mortgagor or than an ordinary reversioner, and in some respects (under the theory as to the nature of mortgages prevailing in some of tlie American states) has less. "A lease," says Mr. Jones, "already existing at the date of the mortgage, is in no way invalidated by the giving of the mortgage. It is then a para- mount interest, and the mortgage is subject to it." 1 Jones on Mort. (3 ed.) sec. 772. Otlierwise as to leases subsequent, as will appear. Newall V. Wriglit, 3 Mass. 138, 152. 2 Two American theories. — There are two theories, as to the nature of mortgages, prevailing in Ainerica. By either of them, under leases, either prior or subsequent to a mortgage, the lessee must continue to paj' rent to the mortgagor \mtil notified to pav it to the mortgagee. Joplm v. John- 85 *50 BY WHOM TERMS GRANTED. [Ch. I. S. 28. Ejectment by mortgagor. — Before the Judicature Act, the mortgagor, having assigned his reversion by the mortgage, son, 2 Kerrs. (N. B.) 541; Johnston v. Riddle, 70 Ala. 219; Souders v. Vansickle, 8 N. J. L. iJ13. The mortgagor can eject a stranger, for the mort- gagor is owner of the mortgaged property against all the world except the mortgagee. Allen v. Kellam, 69 Ala. 442. At common lav7, as it prevails in P^ngland and some of the American states, a mortgagee, having the legal title to the estate as against a mortgagor, has the right to take the rents and profits before foreclosure (1 Jones on Mort. (3d ed.) sec. 11) ; and under a mortgage subsequent to the lease, hav- ing legally the reversion, may claim them at any time from the lessee, and the lessee will be justified in paying them to him upon his mere demand. (Comer v. Sheehan, 74 Ala. 452, ibl(per Somerville, J.) ; Newall v. Wright, 3 Mass. 138, 152; Taylor's Land. & Tenant, sec. 119; 1 Jones on Mort- (3 ed.) sees. 773, 776), the effect of demand and notice being to substitute the mortgagee as landlord in place of the mortgagor. In New York, &c., prior mortgages. — It is, of course, not so in New York and in many other American states, where the mortgagee has a mere lien, and the mortgagor a right to the possession and profits until foreclos- ure. 1 Jones on Mort. (3d ed.) sec. 771. Neither is it so, even at com- mon law, in case of a mortgage prior to the lease. The mortgagee in such case is not a reversioner, but has a title paramount to the lease, and there is no privity between him and the lessee unless the latter attorn to him. Comer v. Sheehan, 74 Ala. 452, 458; Jolinston r. Riddle, 70 Ala. 219; New- all V. Wright, 3 Mass. 138, 152; Drakford v. Turk, 75 Ala. 339. Hence a prior mortgagee cannot distrain for rent without an attornment. McKircher V. Hawley, 16 Johns. (N. Y.) 289. And payment of rent to him would be no defence to a suit for rent by mortgagor. Souders v. Vansickle, 8 N. J. L. 313; Joplin v. Johnson, 2 Kerrs. (N. B.) 541. Nor is such rent recoverable by the mortgagee from the mortgagor. Hatch v. Sykes, 04 Miss. 307. The mortgagee or his assignee may bring action of ejectment against the lessee witiiout notice to quit, Jackson v. Fuller, 4 Johns. (N. Y.) 215; Jackson V. Rowland, 6 Wend. (N. Y.) 666; or he may summarily enter and eject tenant. Brewing v. Berry man, 2 Pugs. (N. li.) 115. And the lessee would not be entitled to the emblements. Downard r. Groff, 40 Iowa, 597; Hecht v. Dcttman, 56 Iowa, 679; Martin v. Knapp, 57 Iowa, 336, 344; Lane v. King, 8 Wend. (N. Y.) 584; Jones v. Thomas, 8 Blackf. (Ind.) 428. The relation of landlord and tenant may, however, be created between such prior mortgagee and a subsequent lessee, as by the mortgagee's entry and receipt of rent from tlie lessee. Conn. Mut. Ins. Co. v. U. S., 21 Ct. of Claims, 195. And the lessee will be justified in attorning to the mortgagee, if actually or constructively evicted by him. Such an eviction would be defence to suit for rent by the mortgagor. Underhay i: Read, 20 Q. B. D. 209. A prior mortgagee cannot, however (as a subsequent mortgagee can) make the lessee of the mortgagor his tenant by simjjle notice and demand to pay rent. Drakford v. Turk, 75 Ala. 339; Comer r. Sheehan, 74 Ala. 452, 458 ( per Somerville, J.) ; Johnstone r. Riddle, 70 Ala. 219. Ordinarily, the relation of landlord and tenant does not exist between a mortgagee and tlie grantee of a mortgagor. Jackson i'. Chase, 2 Johns. (N. Y.) 84. And, therefore, at common law, notice to quit is not necessary before ejecting the mortgagor. 8G Ch. I. S. 28.] BY MORTGAGORS AND MORTGAGEES. *i)0 could not eject the tenant for a. forfeiture (A) ; but by sect. 25, sub-sect. 5, of the Judicature Act, 1873 : (/i) Doe d. Marriott v. Edwards, 5 B. & Ad. 1065. A mortgage and lease given by mortgagor to mortgagee upoH the same day do not merge. The law presumes tliat mortgage was executed first, and infers an implied agreement that mortgagor shall not take possession under his mortgage during the lease. If mortgagor subsequently give mort- gagee a second mortgage, the mortgagee might take possession under the second mortgage. Newall v. Wright, 3 Mass. 138, 152. A lessee for years has a right to redeem from a prior mortgage, Martin V. Miles, 5 Ont. 404 ; and consequently is a proper party to a foreclosure suit, Can. Perm. Loan & Sav. Soc, 22 Grant's Ch. (Ont.) 461 ; 2 Jones on Mort. sec. 106(5. Tenancies betvT^een mortgagee and mortgagor. — The relation does not exist in the ordinary sense between them (/l'x parte McBean, 24 N. B. 302), though under circumstances it has been held that the mortgagor was a tenant from year to year, entitled to six months' notice to quit. Jackson v. Lang- head, 2 Johns. (N. Y.) 75. The mortgagor certainly may become a tenant to the mortgagee. Marden v. Jordan, 65 Me. 9 ; Staples v. Emery, 7 Greenl. (Me.) 201. And in such case may set up such tenancy as a defence to eject- ment brought by a purchaser of the equity of redemption. Doe d. Smith v. Snarr, 1 P. & B."(N. B.) 56. Mortgages are sometimes made with attornment clauses ; and if such mort- gages contain also re-entry clauses for non-])ayment of rent without notice to quit, the mortgagee may terminate tenancy by action for possession. Hall V. Comfort, 18 Q. B. D. 11, 14, 18. And without notice to quit (per Cole- ridge, C. .J.), supra, citing Daubuz v. Lavington, 13 Q. B. D. 347. Eviction by mortgagee ; damages to lessee. — The damage to the lessee of a mortgagor, if evicted by the mortgagee under a foreclosure or otherwise, is the difference between the value of the use of the premises for the remainder of the term and the rental for the same time. Larkin v. Mis- land, 100 N. Y. 212; Clarkson v. Skidmore, 46 N. Y. 297. And the lessee is entitled to be paid such damages out of the proceeds of the foreclosure sale, before any of them are returned to the mortgagor. Larkin v. Misland, 100 N. Y. 212," 213 {pfir Finch, J.). Mortgagee of lessee. — Being an assignee of the term takes all the lessee's rights, and can hold them as against the lessor (Yates v. Kinney, 19 Neb. 275), though, of course, his right to possession and profits would not attach in states where the common law doctrine does not prevail till after foreclosure and delivery of foreclosure deed. Possession of mortgagee. — Possession of mortgagee is essential (gen- erally) in America to the liability of a mortgagee of a term upon the cove- nants in the lease. Astor v. Miller, 2 Paige (N. Y.) 68 (and see per AVal- worth, Chan., pp. 76, 77) ; Babcock v. Scoville, 56 111. 461, 464 {per Sheldon, J., distinguishing mortgagee assignees from ordinary assignees) ; Calvert v. Bradley, 16 How. 580, 595 {per Daniel, J., indicating but not expressly giving his opinion, and limiting Steele v. Carroll, 12 Pet. 201, and Van Ness v. Hyatt, 13 Pet. 294) ; Walton (•. Cronly's Admr., 14 Wend. (N. Y.) 63. The American courts, following Eaton v. Jaques, Doug. 454, which has been overruled by the English courts, hold that the interest of a mortgagee before foreclosure is a chattel interest merely. 87 *50 BY WHOM TERMS GRANTED. [Ch. I. S. 28. " A mortgagor entitled for the time being to the possession or the receipt of the rents and profits of any land, as to which no notice of his intention to take possession or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such posses- sion, or for the recovery of such rents or profits, or to pre- vent or recover damages in respect of any trespass or other Avrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person." Ttwo theories of mortgages. — The common law theory (as held in the English courts), that the mortgagee has tlie legal estate and right of posses- sion before foreclosure and before condition broken unless otherwise stipu- lated, prevails in Maine, New Hampshire, Vermont, Massachusetts, Rliode Island, Connecticut, New Jersey, Pennsylvania, Maryland, \'irginia, West Virginia, North Carolina, Alabama, Kentucky, Tennessee, Oiiio, Illinois, and Arkansas. In Delaware, Mississippi, and Missouri it prevails so far modified that mortgagee has no right to possession until condition broken. 1 Jones on Mort. (od ed.) sees. 17—58. Theory that mortgage creates a lien merely before foreclosure. — This theory prevails in the states of New York, South Carolina, Georgia, Florida, Louisiana, Texas, Indiana, Michigan, Wisconsin, Minnesota, Ne- braska, California, and Oregon. In Dakota, New Mexico, and Utali Terri- tories, and in the states of Iowa, Kansas, and Nevada, witli the qualification in the last three states, tliat parties may agree in the mortgage that mort- gagee shall have the right of possession. 1 Jones on Mort. (3d ed.) sec. 58. Tills theory originated partly from the civil law as it prevailed in Louisi- ana, and partly from early decisions in New York, following the views of Lord Mansfield, since repudiated by the English courts. Same, sec. 59. In the states where it prevails the mortgagor is entitled to the rents and profits until the delivery of the deed under the foreclosure sale (Dewey i'. Latson, G Cal. 009; Syracuse City Hank v. Talhnan, 31 Barb. (N. Y. Supreme Ct.)201; Zeiter v. Bowman, (5 Id. 1.'33; 1 Jones on Mort. (3d ed.) sec. 771), unless a receiver is appointed. In that case the rents and profits are inter- cepted, and the mortgagee gets the benefit of them. Howell v. Ripley, 10 Paige (N. Y.) 43. Sometimes a junior mortgagee may get some advantage over a senior mortgagee. As a result of this theory an attornment by a lessee to a purchaser, under a mortgage sale prior to the delivery of the deed, even though the mortgage were prior to the lease, is no defence to a suit for rent hy the mortgagor. Whiilin V. White, 25 N. Y. 402. Neither can the mortgagor's tenant be required to attorn to such purchaser until lie produces the foreclosure deed. Same. Neither can the mortgagee bring ejectment against the tenant of the mortgagor prior to the foreclosure and sale. Simers r. Saltus, 3 Denio (N. Y.) 214, 219. But the purchaser at foreclosure sale, after lie lias received his deed, can maintain tresjjass against the lessee if the latter carry away crops growing ui)on the premises at the time of the sale. Lane v. King, 8 Wend. (x\. Y.) 584. Cn. I. S. 28.] BY MORTGAGORS AND MORTGAGEES. *51 * Upon giving notice of his mortgage, and request- [*51] ing the rent to be paid to him, the mortgagee becomes entitled to all the arrears of rent which became due after his mortgage, and which then remained unpaid, and also to all subsequent rent (0-^ Mortgagee entitled to rent on notice of mortgage. — Where a mortgagor after execution of an agreement for a lease, under which the tenant has entered, mortgages the premises, tlie mortgagee may maintain use and occupation for the enjoy- ment of them subsequently to the mortgage, and notice thereof (A;). Where a mortgage Avas made after a letting from year to year, and subsequently the mortgagor, on making some improvements, agreed with the tenant for an increased rent ; it Avas held that the mortgagee, after notice to the tenant of the mortgage, might recover, in an action for use and occupation, arrears of the improved rent due at the time of the notice, as well as subsequent accruing rent (/). Where a mortgage was made after a letting, and it was subsequently arranged between the mortgagor, the mortgagee, and the tenant, that the latter should pay the interest to the mortgagee, and the remainder of his rent to the mortgagor ; it was held that after this arrangement the tenant was not justified, after a mere notice so to do, in pay- ing the whole rent to the mortgagee (w?). Leases after the mortgage ; common law rule. — With regard to leases after a mortgage, the common law rule was, that neither mortgagor nor raortsfaofee could make a sfood lease alone ; for the mortgagor's lease was bad in law as against the mortgagee, wherefore the mortgagee could evict the lessee as 'a trespasser (w) ; ^ and the mortgagee's lease was bad in equity as against the mortgagor, wherefore the {{) Moss i\ Gallimore, 1 Doug. 279; (/) Burrowes i-. Gradin, 1 D. & L. 1 Smith, L. C. 629 (7th ed.) ; Pope 218. V. Briggs, 9 B. & C. 245 ; Rogers v. (w) Whitmorc v. Walker, 2 C. & Humphreys, 4 A. & E. 299, 313. K. 615. (Jc) Rawson v. Eicke, 7 A. & E. (n) Keech v. Hall, 1 Doug. 21 ; 1 451. See Form of Notice, />os<, Ap- Sm. L. C. ; Thunder d. AVeaver v. pendix C, Nos. 15, 16. Belcher, 3 East, 449, ^ See ante, sec. 28 a, note. 89 *52 BY WHOM TERMS GRANTED. [Ch. I. S. 28. mortgagor could, by redeeming the mortgage, avoid the lease (o). As, therefore, neither mortgagor nor mortgagee could make a valid lease, it became usual for them both to concur (p), and for mortgage deeds to contain special leas- ing powers by one or other, or both {q^.^ Effect of Conveyancing Act. — The 18th section of the Con- veyancing Act, 1881 (44 & 45 Vict. c. 41), has with regard to leases made after the commencement of that act [1st of Jan. 1882], and so far as a contrary/ intention is not expressed by both parties in the mortgage deed, abolished the common law rule ; has given to either mortgagor or mortgagee, if in possession, ample powers of leasing ; and has rendered joint powers of leasing unnecessary for the future. See p. 56, post. [*52] * Lease after mortgage before Conveyancing Act, &c. — The 18th section of the Conveyancing Act being neither retrospective nor compulsory, the decisions applicable to mortgages before the act are still of very great importance, especially as it appears to have become usual for mortgagees to insist upon the exclusion of sub-s. (1) which confers the leasing power upon the mortgagor (r). These cases there- fore must now be stated, so far as they affect the relation of landlord and tenant, the reader being referred to other works for the cases affecting^ the relations of mortcragfor and mort- gagee (s). Leases by estoppel. — If then the mortgage bear date before the act, or if the 18th section of the act be excluded, and there be no express leasing power reserved to the mortgagor, the result of a lease by the mortgagor alone is that the (o) Franklinski v. Ball, 34 L. J., (r) Hood and Cliallis on the Con- di. 153. veyant'ing Acts, p. 111. (p) See Carpenter v. Parker, 3 C. (s) See Coote on Mortgages ; Fisher B., N. S. 206. on Mortgages. (7) Hqc post, 52, 55. 1 " Tlie only safety for a lessee in taking a lease of premises subject to a mortgage, is to obtain the concurrent action of tiie mortgagor and mort- gagee in the execution of the lease." 1 Jones on Mort. (3(1 ed.) sec. 783. A lease made by tiie mortgagee, witiiout the concurrence of the mortgagor, is liable to be terminated by the redemption of the mortgage. Willard v. Harvey, 5 N. II. 252. 90 Cu.I.S.28.] BY MORTGAGORS AND MORTGAGEES. *53 tenant will be thereby estopped (^) during his possession under the lease from disputing tlie mortgagor's right to demise (w), and apparently, upon the general principle that an estoppel binds both parties (./;), the mortgagor landlord will also be liable by estoppel upon his covenant for quiet enjoyment upon his ejectment by the mortgagee (2). Mortgagee cannot distrain, &c. — But although the mortgagee may treat the tenants of the moi'tgagor as trespassers in the case of a lease made after the mortgage, he cannot distrain or sue for rent, or for use and occu2Jation (a), unless a new tenancy has been created as between him and the tenant in possession, by an attornment or otherwise (6). A mere notice of the mortgage, with a request to the tenant to pay his rent to the mortgagee (not assented to by the tenant), is insufficient to create between them the relation of landlord and tenant (c). If the notice be assented to and complied with by the tenant, he becomes tenant from year to year upon an agreement for a lease with the mortgagor, and can, by giving notice to quit, prevent the mortgagee from en- forcing specific performance of the agreement (d^. Where a tenant, after notice given to him of the mortgage, pays rent to the * mortgagee under a distress, it does [*53] not constitute a tenancy by relation back, so as to entitle the mortgagee to distrain for a previous half-year's (0 See Webb v. Austin, 7 M. & G. brook Steam Canal Co., 5 Exch. 932; 701. Litchfield v. Ready, 5 Exch. 939. (u) Alchorne v Gomnie, 2 Bingj. {h) Brown v. Storey, 1 M. & G. 54; Morton ;•. Woods, L. R., 3 Q. B. 117, 126; Roberts v. Hayward, 3 C. 658; 37 L. J., Q. B. 242; Doe d. & P. 432 ; Doe f/. Wliitaker »;. Hales, Learning v. Skirrow, 7 A. & E. 7 Bing. 322 ; Doe d. Hugiies v. Buck- 157. ncU, 8 C. P. 566; Doe d. Miggin- (x) Co. Litt. 352 (a). botham v. Barton, 11 A. & E. 307 ; [z) Hartcup v. Bell, 1 C. & E. 19, Doe d. Bowman v. Lewis, 13 M. & per Manisty, J., aff. both by Div. W. 241. Court and C. A. {ih.). This is an ex- (c) Rogers v. Humphreys, 4 A. & ception to the general effect of the E. 299;- Partington v. Woodcock, 6 qualified covenant for quiet enjoy- A.&E. 690; Evans r. Elliott, 9 A. & ment: see Ch. XVII. Sect. 8, post. E. 342 ; Doe d. Higginbotliam v. Bar- (a) Rogers v. Humpiireys, 4 A. & ton, 11 A. & 10. 307; Hickman v. E. 299, 313 ; Partington v. Woodcock, Machin, 4 H. & N. 716. 6 A. & E. 690; Evans v. Elliott, 9 A. (J) Corbett v. Howden, L. R., 25' & E. 342; Turner v. Cameron's Coal- Cli. D. 678; 54 L. J., Cli. 109; 50 L, T. 470 ; 32 W. R. 067, C. A. 91 *53 BY WHOM TERMS GRANTED. [Ch. I. S. 28. rent (e). But if the tenant expressly attorns as from a previous day at a fixed rent, all such rent, when in arrear, may be distrained for (/). Where a mortgagee gave notice of the mortgage to a tenant of the mortgagor, and required him to pay all rent due and to become due in respect of the premises, and the tenant acquiesced, it Avas held to be evi- dence from which a jury might infer a yearly tenancy, as between the mortgagee and the tenant (//). The result of the cases seems to be that a bare notice by the mortgagee to a subsequent tenant of the mortgagor to pay him the rent (not assented to by the tenant) will not create any new tenancy ; but that a notice acquiesced in by payment of rent or otherwise is evidence from which a jury may infer a new contract of tenancy from year to 3^ear as between the mort- gagee and the tenant in possession (A). The mere receipt by the mortgagee from the mortgagor of interest due on the mortgage will not preclude the mortgagee from ejecting the mortgagor's tenant (z). The fact of the mortgagee being al- lowed to see improvements made to the property by the lessee of the mortgagor, does not raise an implied tenancy between the mortgagee and the lessee, and is not a recognition of his holding (/c). A mortgagee out of possession, who gives notice of the mortgage to the tenant who has become tenant since the mortgage, cannot maintain trespass for mesne profits against the tenant for the rents accrued due since the date of the mortgage, by mere entry upon the land after the notice, the doctrine of relation not applying to such a case (?)• Letting of furnished house by mortgagor. — If the mortgagor of a house lets it furnished, and afterwards the tenant re- ceives notice from the mortgagee to pay the rent to him, (c) Evans v. Elliott, A. & E. .342. Humphreys, 4 A. & E. 209 ; Doo d. (/) Gladman r. VUmu'v, 15 L. J., HifiKi'i'iotliinn v. Barton, 11 A. & E. Q. 13. 80; lO.Jur. lO't. .307; Ilifkniiui ?•. Mafhiii, 4 11. & N. (;,) Brown r. Storey, 1 M. & G. 117 ; 710 ; 21 L. .!., K.\. .310. Doc d. Hughes r. Bucknoll, 8 C. & P. (/) Doe ). With respect to leases made b}^ the debtor before the execution of a writ of elegit, the tenant by elegit (i.ersonally liahlc if he waive the term, except to the extent of assets in iiis hands. Martin v. Black, Paige (N. Y.) 041, 044 {per Walworth, Ciiun.). 100 Ch. I. S. 31.] BY LOKDS OF MANORS AND COPYHOLDERS. *G0 vices, which bind him who has the inheritance {h). But voluntary grants of copyhold, by the lord, can only be made according to the custom of the manor (c). Where there is no custom for that purpose the lord of a manor cannot make a new grant of copyhold (d). The ancient rent and services must be reserved : any alteration therein will make the grant void as against the lord's successor (e). Leases of the wastes. — By 13 Geo. 3, c. 81, s. 15, lords of manors, with the consent of three-fourths of the commoners, may demise for not more than four years any part of the wastes and commons, not exceeding one-twelfth part, for the best rent that can be obtained by auction, the same to be applied in draining, fencing, and improving the residue. So by custom the lord may have power to demise parcels of the waste (/), but a custom for the lord to grant leases of the waste, without restriction, is bad, as amounting to a power of destroying the right of common altogether ((/). A copy- hold, to which a right of common was annexed, having by the custom of the manor vested in the lord by forfeiture, and he having regranted it as a copyhold tenement with the appurtenances ; it was held, that having always continued demisable whilst in the hands of the lord, it was a custom- ary tenement, and, as such, Avas entitled to the right of common (7^). By copyholders. — A copyholder cannot make a lease for more than one year without a licence or by special custom, without thereby incurring a forfeiture * of [*60] his estate (i). In most manors a copyholder may demise for one year or less without any licence of the lord (^) ; (b) Badger v. Forde, 3 B. & A. 153. (A) Badger v. Forde, supra. (c) Rex V. Welby, 2 M. & S. 604 ; (0 Scriven, 329, -3.30 (5th ed.) ; Cole Ejec. 632. Anon., Moor. 184 ; East v. Harding, (d) Rex V. Hornchurch, 2 B. & A. Cro. Eliz. 498 ; Jackman v. Hoddes- 189; Cole Ejec. 632. den, Id. 351 ; Cole Ejec. 615, 627. (e) Doe d. Rayner v. Strickland, 2 (A) Scriven Cop. 329 (5th ed.) ; Q. B. 792. Cole Ejec. 627 ; Frosel v. Welsh, Cro. (/) Ld. Northwick v. Stanway, 3 Jac. 403 ; ISIathews v. Whetton, Cro. Bos. & P. .346. Car. 233 ; Goodwin v. Longhurst, (^) Badger r. Forde, 3 B.& A. 153; Cro. Eliz. 535; Erish v. Rives, Id. Arlett I'. Ellis, 7 B. & C. .346 ; but see 717. Lascelles v. Lord Onslow, 36 L. T. 459. 101 *60 BY WHOM TERMS GRANTED. [Ch. I. S. ol. but this is by custom of the manor (I). A lease for one year, and so from year to year during ten years, being in effect a lease for ten years, is a forfeiture but otherwise of a lease for one year, with a covenant for the holding it for a longer time at the will of the lessor (w). A lease for one year and so from year to year for the life of the lessee, being a lease for two years at least, is not good (?i). So if it be for a year except one day, and so on from year to year, excepting one day in every year ; for it is a certain lease for two years excepting two days, which is a lease in effect for more than one year ; and although there be the mtermission of a day, yet there is a mere evasion and not material (o). So if a copy- holder makes three leases together, each to commence within two days after the expiration of the other, it is a mere evasion of the custom, and therefore not good (j?). So a lease for more than one year, though intended only as for a collateral secur- ity, is bad, if it amounts to a present demise (^). A lease for years, without licence from the lord, is not good without a special custom, though the lease be made by parol, or be not in possession, but to commence in futuro ; and such lease is a forfeiture if it be a good lease as between the parties (r). Under special custom. — By special custom, a copyholder may make leases for more than one year, or for life, and a cer- tain number of years after, without licence from the lord (s). A custom for copyholders in fee to lease for any number of years without licence, on condition of the term ceasing on the lessor's death, is a good custom (t'). The powers granted by the Settled Estates Act (i*), includes powers to the lords of settled manors to give licences to their copyhold and customary tenants to grant leases of lands held by them of such manors, to the same extent, and for the same pur- poses, as leases may be granted of freehold hereditaments (I) Turner v. Hodfros, Hetlcy, 126 ; (p) Mathews v. Whetton, Cro. Car. Lit. Rep. 233 ; Cole Ejec. G27. 233. (»«) Lafly Montague's case, Cro. (7) Morris v. Twist, 2 Mod. 79. Jac. 301; Cole Ejee. 015. (r) Com. Dig. tit. Copyhold (K. (n) Luttrell v. Weston, Cro. Jac. 3). 308; Cole Ejec. 34, 442. (.s) Seriven Cop. 330 (f)th ed.). (o) Lady Montague's case, Cro. (/) Turner v. Hodges, Ilutt. 101. Jac. 301. («) ^l"'*". ^• 102 Ca. I. S. 31.] BY LORDS OF MANORS AND COPYHOLDERS. *G1 under the act (2;). The grantmg of a licence is entirely in the discretion o\ the lord, and the court will not compel him to grant a licence, even where there is a custom to pay a certain sum for every year of the term (?/). Under licence from the lord. — A copyholder having licence to demise, ought not to exceed the * licence, [*61] otherwise the lease is bad (2) ; but he may lease for fewer years than his licence allows (a). If the lord licence his copyholder for life, to make a lease for three years, if he so long lives, a lease for three years absolutely is good (6) ; because a lease by a copyholder for life determines by his death. If the lord licence upon condition, the condition is void : for he gives nothing, but only dispenses with the for- feiture (c). A tenant at will of a manor cannot grant a copyholder a licence to alien for years ; and if a tenant for life of a manor grants a licence to alien for years, it deter- mines at his death (<7). What lease is a forfeiture. — A lease without licence, and contrary to the custom, in order to amount to a forfeiture, must be a complete demise ; therefore, where a copyholder demised his copyhold for a year, and agreed to grant a fur- ther term of twenty-one years, provided he could obtain of his lord a licence for that purpose, the licence was held to be a condition precedent, and therefore that no forfeiture was incurred (g). If the interest actually granted be within the period allowed by the custom of the manor, although the lessor covenants that the lessee shall enjoy the land for a longer period, no forfeiture is incurred ; the distinction being (x) 40 & 41 Vict. c. 18, s. 9. (6) Worledge v. Benbury, Cro. Jac. (//) He.u-. (;. Hale, 9 A. &. E. 339. 436; Cole Ejec. 615; Scriven Cop. (c) Hadcion v. Arrowsmlth, Owen, 332, .5th ed. 73; Cro. Eliz. 461; Jackson i'. Neal, (c) Haddon v. Arrowsmith, Cro. Cro. Eliz. 394 ; Scriven Cop. 332 (5th Eliz. 461 ; Doe d. Wood v. Morris, 2 ed.) ; Com. Dijr. tit. Copyhold (K. Taunt. 52 ; Cole Ejec. 628. 3) ; Doe d. Robinson v. Bousfield, 6 (d) Com. Dig. tit. Copyhold (C. Q. B. 422 ; 1 C. & K. 558. 3) ; Scriven Cop. 331 (5th ed.). (rt) Goodwin V. Longhurst, Cro. (e) Bac. Abr. tit. Leases (1, 6) ; Eliz. 535; Worledge v. Benbury, Cro. Price v. Bircii, 4 M. & G. 1 ; 1 Dovvl. Jac. 437; Isherwood v. Oldknow, 3 N. S. 720; Lenthall i-. Thomas, 2 Keb. M. & S. 382 ; Easton v. Pratt, 2 H. & 267 ; Pester v. Cater, 9 M. & W. C. 676; 33 L. J., Ex. 233; Cole Ejec. 315. C15. 103 *62 BY WHOM TERMS GRANTED. [Ch. I. S. 32. between an interest actually granted and a matter which rests entirely in contract (/). No one can take advantage of the forfeiture, excejDt the party who was lord at the time it occurred. The remainderman or reversioner, after the death of the lord without entry or seizure for the forfeiture, has no such right (^). The admittance of a copyholder after a forfeiture has been incurred, is a waiver of such forfeiture ; and any act equally solemn will operate in the same manner. A waiver does not operate as a new grant, but the tenant is in of his old title (/i). If a copyholder, after a lease by licence, forfeit his copyhold, the lord cannot avoid the lease (i). Effect of leases by copyholders. — A lease by a copyholder not warranted by the custom, and without the licence of the lord, is good against the parties themselves and against every one but the lord (^) ; and as against the lord it is [*62] only * a ground of forfeiture, which he may waive {l}. If a copyholder make a lease by licence, the lessee may assign without licence, or make an under-lease, for the lord by liis licence has parted with his interest ; so if the lessor after a lease by licence die without heir, the lessee shall have it for his term against the lord, for the licence is a confirmation of the lord (»«). Sect. 32. — Bi/ Agents and Bailiffs. (a) Agents. Authority of. — An agent having sufficient authority may bind his principal by leases and agreements for leases made (/) Lady Montague's case, Cro. (I:) Salisbury d. Cooke ;•. Ilurd, Jac. 301 ; Lentliall ?;. Thomas, 2 Keb. Cowp. 481; Wells i;. rartridge, Cro. 267; Doe d. Coore v. Clare, 2 T. B. Eliz. 469: Ashfield v. Asbfield, Sir 739; Riehards r. Ceely, 3 Keb. 638; W. Jon. 157; Doe d. Tressider v. Cole Ejec!. 610. Tressider, 1 Q. B. 416 ; Doe d. Uobin- (v) Lady Montnfrue's case, supra ; son v. Boiisfield, 1 C. & K. 558; 6 Q. Eastoourt r. Weeks, 1 Salk. 186; B. 492; Downinj^'ham's case, Owen, Margaret Podger's case, 9 Co. R. 17; Cole Ejec. 627. 107 a ; 1 l?ro\vnl. 181 ; 2 Id. 134, (/) Doe d. Robinson v. Bousfield, 6 153 ; Cole Ejec. 615. Q. B. 492 ; 1 C. & K. 558. (/i) Doc d. Tarrant r. Ilcliier, 3 T. (m) Johnson v. Smart, 1 Boll. Ab. IM71. 508,1)1.14. (/) Com. Dig. tit. Copyhold (C. 3) ; Clarke v. Arden, 16 C. B. 227. 104 Ch. I. S. 32.] LEASES BY AGENTS AND BAILIFFS. *62 for him and in his name and on liis behalf (n).^ If the lease or agreement be under seal, the agent's authority to execute it must also be under seal (o). But if the lease or agreement be not under seal, the agent's authority need not be under seal, nor even in writing, notwithstanding the 4th section of the Statute of Frauds (p). The agent should not exceed his authority, otherwise the principal will not be bound, and the agent will incur a personal liability {q}. The authority of the agent to sign the particular contract, or such a contract, must be proved, if disputed, in an action or suit against the principal (r). A steward or land agent has no authority as such to enter into contracts for leases (s) ; but a power to " manage and superintend estates " gives an authority to contract for the granting of customary leases according to the nature and locality of the property to be demised (t'). A farm bailiff with authority to let from year to year on the usual terms and to receive rents, has no implied authority to let on unusual terms, or to make any (w) Hamilton v. Earl Clanricarde, 1 (q) Fenn i\ Harrison, 3 T. R. 758 ; Bro. P. C. 341 ; Ridgway v. Wharton, Hamilton v. Earl Clanricarde, 5 Bro. 3 De G., M. & G. 077, 688; 6 H. L. P. C. 547; Speeding v. Nevell, L. R., Cas. 238. 4 C. P. 212. (o) 3 Bac. Abr. 408 ; Com. Dig. tit. (r) Blore v. Sutton, 3 Mer. 237 ; Attorney (C. 1), (C. 5); Harrison v. Ridgvvay v. Wharton, 3 De G., M. & Jackson, 7 T. R. 207 ; Horsley v. G. 677, 686 ; 27 L. J., Ch. 46 ; 6 H. L. Rush, Id. 209. Cas. 238; Firth v. Greenwood, 1 Jur., (p) 29 Car. 2, c. 3; Coles v. Treco- N. S. 806; Turner v. Hutchinson, 2 thick, 9 Ves. 234, 250 ; Clinan i', F. & F. 185 ; Spedding ;,■. Nevell, L. Cooke, 1 Sch. & Lef. 22; Dyas v. R., 4 C. P. 212. Cruise, 2 Jon. & Lat. 401 ; Clarke (.s) Collen r. Gardiner, 21 Beav. V. Fuller, 16 C. B., N. S. 34 ; Forster 540 ; Mortal t;. Lyons, 8 Ir. R. Ch. V. Rowland, 7 H. & N. 103; Heard v. 112; Ridgway v. Wharton, supra. Pilley, L. R., 4 Ch. Ap. 548. (t) Peers v. Sneyd, 17 Beav. 151. 1 If the agent of lessor contract in his own name, in behalf of his princi- pal, the lease will bind lessee by estoppel, and agent (in this case a committee) can bring suit for rent in own name. Stott v. Rutherford, 92 U. S. 107. An agent who takes a lease expressly contracting for a foreign principal is not necessarily personally liable. The question is one of intent. The pre- sumptions are stronger against him than if he had a domestic principal, yet, if the contract be in name of foreign principal and upon his credit, agent will not be liable. O'Neil v. Wells, 2 Russ. & Ches. (N. 8.) 205, 206, 207. 105 *63 BY WHOM TERMS GRANTED. [C«. I. S. 32. special stipulations without the express authority of his prin- cipal (u). Subsequent ratification. — If an agent acts without suffi- cient authority, his acts may be subsequently adopted [*63] and ratified in writing by his principal (2:), * or even without any writing (^). Even where an agent exe- cutes a deed on behalf of his principal, but without sufficient authority, the latter may adopt and ratify the deed by re- delivering it, or by anything tantamount to a re-delivery (^z). An authority created by deed may be revoked without deed (a). Agent should sign name of principal. — An agent, who has sufficient authority, whether by deed or otherwise, should execute any lease or agreement in the name of his principal, and not in his own name only (5). Thus, "A. B. (seal) by E. F., his attorney," to which may be added, "by power of attorney hereunto annexed or a copy whereof is hereunto annexed or hereupon indorsed." Form of signature, &c. — If the writing be not under seal, it should be signed thus, — " A. B. by E. F. his attorney," or "Per pro. A. B., E. F., or to that eifect"(6'). Implied warranty of authority. — If an agent executes a lease or agreement professedly as attorney or agent for another, he thereby impliedly warrants and promises that he has sufficient authority from his principal to execute such contract on his behalf, and an action will lie against him personally or against his representatives, for the breach of such warranty or promise, if he really has no such au- thority ((Z). (h) Turner v. Hutchinson, 2 F. & White ?•. Cuyler, 6 T. R. 177 ; Wilks F. 185. As to House-Agcnt, sec post, 7'. Hacli, 2 East, 142 ; Appieton r. 04. Binks, 5 East, 148 ; Tanner i-. Cliris- (z) Fitzmaurice v. Bayley, 6 E. & tian, 4 E. &. B. 5!)1 ; Parker v. Win- B. HG8 ; reversed in error on another low, 7 E. & B. 042, 947 ; Cooke v. point. 8 E. & B. 004 ; H. L. Cas. 78. Wilson, 1 C. B., N. S. 153 ; 2(5 L. .T., 0/) Rodmeil v. Eden, 1 F. & F. 542. C. P. 15; Sa.xon ?•. Bhike, 2i) Beav. (z) Shep. Touch. 57 ; Tupper v. 438 ; M'Ardle v. Irisli Iodine Manu- Foulkes. y C. B., N. S. 707 ; :]() L. J., facturinf^ Co., 15 Ir. C. L. Rep. 140. C. P. 214. (r) Alexander V. Sizer, L. R., 4 E.\. . (rt) Rex r. Wait, 11 Price, 508; 102. Manser r. Black, Hare, 443. (d) Collon r. Wriiriit, 7 E. & B. (h) Combe's case, Co. R. 77 a ; 301 ; 8 Id. 047; 27 L. J., Q. B. 215; lOG Ch. I. S. 32.] LEASES BY AGENTS AND BAILIFFS. *6-4 Agent when personally liable. — If an agent executes a lease or agreement in his own name only, whether under seal (e), or not under seal (/), he will be personally liable as a prin- cipal, although in the body of the instrument he is described as agent for A. 13., and is therein stated to make it for and on behalf of A. B. ; because an agent may, if he please, con- tract a personal liability for and on behalf of his principal (,^). Parol evidence would not be admissible to exonerate the agent from such personal liability, for that would contradict the writing (7i). But it would be admissible to cliarge the prin- cipal^ and to enable him to sue or be sued on the contract (i). To avoid such personal liability the agent should always sijpi as agents and not with his own name only (/c). * Misrepresentation by agent. — With respect to mis- [*64] representations made by agents on the sale or letting of property, whereby a person is induced to enter into a dis- advantageous contract, which otherwise he would not have done, it is material to ascertain whether such misrepresenta- tions were fraudulently made. If not, the contract cannot be avoided for " fraud, covin, and misrepresentation " (V). This was expressly held in Cornfoot v. Fowke (m). There the plaintiff put a furnished house into the hands of an agent to let at a stipulated rent. The plaintiff knew, but the Simons v. Patchott, 7 E. & B. 568; Chadwick d. Maden, 9 Hare, 191 ; Pry, Pow V. Davis, 1 B. & S. 220; 30 L. J., s. 153. Q. B. 257 ; Spedding v. Nevell, L. R., («) Higgins v. Senior, supra ; Hum- 4 C. P. 212. frey v. Dale, 7 E. & B. 2GG; E., B. & (e) Appleton v. Binks, 5 East, 148. E. 1004. (/) Tanner v. Christian, 4 E. & B. (k) Green v. Kopke, 18 C. B. 549 ; 591 ; Cooke v. Wilson, 1 C. B., N. S. Clay v. Southern, 7 Exch. 717 ; 27 L. 153 ; 26 L. J., C. P. 15 ; Parker v. J., Ex. 202 ; Parker v. Winlow, 7 E. Winlow, 7 E. & B. 942, 947 ; Saxon & B. 942 ; Deslands v. Gregory, 2 E. V. Blake, 29 Beav. 438. & E. 602; Cooke v. Wilson, I'c. B., ((f) Norton t-. Herron, 1 C. & P. N. S. 153 ; Alexander v. Sizer, L. R., 648; Ry. & Moo. 229; Tanner v. 4 Ex. 102. Christian, 4 E. & B. 591 ; Cooke v. (I) Cornfoot v. Fowke, 6 M. & W. Wilson, 1 C. B., N. S. 153; 26 L. J., 358; Lord Abinger, C. B., diss. See C. P. 15; Parker v. Winlow, 7 E. & notes to Pasley v. Freeman, 2 Sm. L. B. 942, 947. C, 8tli ed., p. 87, where it is said that (h) Iliggins V. Senior, 8 M. & W. Cornfoot c. Fowke is "by no means 844; Humble v. Hunter, 12 Q. B.310 Jones V. Littledale, 6 A. & E. 480 Magee v. Atkinson, 2 M. & W. 440 universally admitted as law;"Feret V. Hill, 15 C. B. 207. {m)G M. & W. 358. 107 *65 BY WHOM TERMS GRANTED. . [Ch. I. S. 32. agent did not know, that the adjoining house was a bawdy- house. That the defendant had been informed by the agent, in answer to an inquiry, that there was no objection to the house, was held not to be a defence to an action for not taking it (m). But if the agent made such representations fraudulently, the principal will be liable, although he did not instruct his agent to make au}^ representations on the subject (w). So if the principal authorizes any such false representations, or knowingly employs an agent, ignorant of the particular defect or objection, in order that the latter may innocently, but inaccurately answer questions on the subject, it by no means follows that the party defrauded can repudiate and rescind the whole contract, by reason of the fraud practised upon him (o), although sometimes that may be done immediately after the fraud is discovered, provided the parties can be replaced in statu quo, but not otherwise (o). This can seldom if ever happen where an estate has passed, or possession has been taken. House-agent. — A house-agent letting a house for his em- ployer seems to be liable if he neglects to make reasonable inquiries as to the solvency of the tenant. In a case where the house-agent introduced a tenant, and charged 5 per cent, commission, it was held to be a question for the jury, in an action brought by his employer in consequence of the tenant's insolvency, whether it was part of the house-agent's duty to make reasonable inquiries into the eligibility of the tenant. The court refused to set aside a verdict for the plaintiff, and the several members of the court expressed strong opinions as to the liability of the house-agent. " What does the house-ajrent receive his commission for," asked Wightman, J., "except for making inquiries as to the fitness of the tenant?" (7J>). It seems doubtful whether a |-*05j * house-agent- has iin])licd authority to let persons (m) M. & W. .358. Fcrc't v. Hill, 15 C. B. 207 ; Clarke v. (n) See Barwick v. English .Toint Dickson, K., B. & K. 148. Stock Bank, L. K., 2 Ex. 2J9, E.\. (/-) IKys r. Tindall, 1 B. & S. 200; Cii. :30 L. J.,Q. B. 3G2; 4 L. T. 40.!; (o) Hunt f. Silk, 5 East, 449; W. R. 004. Blackburn r. Sniitli, 2 Excli. 7H:'. ; 108 Ch. I. S. 32.] LEASES BY AGENTS AND BAILIFFS. *65 into possession ; but slight evidence will ]je sufficient to prove that he had express authority (5'). Right of house agent to commission. — No case, SO far as the editor is aware, expressly decides what commission, if any, a house-agent finding a person ready to be tenant, biit whom liis principal without reason declines to accept, is entitled to claim. In Prickett v. Btvhjer Cr), it was held that an agent employed to sell a property at \\ per cent, commission, and who found a purchaser, who made a binding offer, was entitled, on his principal declining the offer, to sue on a quantum meruit., and it was said by Wiles, J., to recover the whole of the agreed commission. The principle of this case would, it is conceived, apply to some extent to the case of a house-agent procuring a binding offer to accept a lease from a person to whom as tenant no reasonable objection could be taken. It is believed, however, to be a common practice for house- agents to agree that " commission is only to be chargeable on a letting being carried out through their instrumentality," and if such an agreement (which is frequently expressed in a printed register, &c.) ca,n be proved, no commission or even a quantum meruit would seem to be chargeable till an absolutely binding contract has been concluded. Amount of commission. — It may be useful to insert here the " Terms of Commission authorized by the Institute of Estate and House- Agents." They are : — For Letting Unfurnished Houses, or Disposing of Leases, other than Ground Leases. If let for three years or less, X5 per cent, on one year's rent; if for more than three years, £7 J per cent, on one year's rent, and (in either case) upon the premium or con- sideration X5 per cent, up to .£1,000, and <£2^ per cent, on the residue, and the commission on any sum obtained for fix- tures, furniture, or effects of any kind, of .£5 per cent, up to X500, and £2^ per cent, on the residue. (9) Slacke v. Crewe, 2 F. & F. 59. (r) 26 L. J. C. P. 33 ; 1 C. B. N. S. 296. 109 '66 BY WHOM TERMS GRANTED. [Ch. I. S. 32. Foe, Letting Furnished Houses in Town or Country. When let for a year or less period, Xo per cent, on the rental. When let for more than a year, £5 per cent, on first year's rent, and <£2^ per cent, on rent for remainder of term. Where a property is let, and the tenant afterwards pur- chases, the commission for selling will then become charge- able, less the amount previously paid for letting. [*66] *FoR Valuations or Sale of Furniture, Fix- tures, AND Other Effects. X5 per cent, up to <£500, and £2^ per cent, on the residue. The commission may be lost by revocations of the instruc- tions to let, but a quantum meruit may be recovered for expense and trouble incurred before the revocation (s). House-agent must be licensed. — B}^ 24 & 25 Vict. C. 21, S. 10, "every person who, as an agent for any other person, shall, for or in expectation of fee, gain or reward of any kind, advertise for sale or for letting any furnished house or part of any furnished house, or who shall by any public notice or advertisement, or by any inscription in or upon any house, shop, or place, used or occupied by him, or by any other ways or means, hold himself out to the public as an agent for sell- ing or letting furnished houses, and who shall let or sell, or agree to let or sell, or make, or offer, or receive any proposal, or in any way negotiate for the selling or letting of any fur- nished house or part of any furnished house, shall be deemed to be a person using and exercising the business, occupation and calling of a house-agent within the meaning of this act and the Schedule (B.) hereto (0, and shall be licensed accordingly : pi-ovided that no person shall be deemed to be such house-agent by reason of his letting or agreeing or offer- (s) Simpson v. Lamb, 25 L. J. C. " Licence to he taken out yearly after P. 113; 17 C. B. G03. In tiiis case the Gth day of July, 18G2, hy every the instructions were to sell an ad- person who shall use or exercise the vowson. business, occupation or calling of a (/■) Schedule B. is as follows:— house agent . . . 2l.0s.0d." 110 Cii. I. S. 32.] LEASES BY AGENTS AND BAILIFrS. *67 ing to let, or in any way negotiating for the letting of any house not exceeding the annual rent or value of twenty-five pounds : provided also, that any story or flat rated and let as a separate tenement shall be considered to be a house for the purpose of this enactment." Duration of a licence. — By sect. 11, " The Commissioners of Inland Revenue, and any person authorized by them, shall after the 5th of July, 1861, grant licence to any person who shall apply for the same to use and exercise the business, occupation and calling of a house-agent, which licence shall also authorize the person to whom it is granted to use and exercise the calling or occupation of an appraiser ; and any such licence issued between the 5th of July and the 5th of August in any year shall be dated on the 6th of July, and any such licence issued at any other time shall bear the date of the day on which the same shall be issued, and every such licence shall continue in force from the day of the date thereof until and upon the 5th of July then next following and no longer." Penalty for acting without licence. — By sect. 12, "every person who shall use or exercise the business, occupation or calling of a house-agent, without having a licence in * force under this act so to do, shall forfeit the sum [*67] of twenty pounds." From the wording of this section it would seem not to be applicable to an isolated letting (although for commission) by an unprofessional person. Saving for land-agent, &c. — Sect. 13 provides, " that this act shall not extend to require any agent employed in the management of landed estates, or any attorney, solicitor, proctor, writer to the signet, agent or procurator admitted in any court of law, or any conveyancer who shall as such have taken out his annual certificate, or any auctioneer or appraiser, having in force a licence as such, to take out a licence under this act as a house-assent." (b) Bailiffs. Power of bailifis to grant leases. — A bailiif of a manor cannot, by virtue of his office, make leases for years ; for 111 *67 BY "WHOM TERMS GRANTED. [Ch. I. S. 23. liis business is only to collect the rents, gather the fines, look after the forfeitures, and such like : he has no estate or interest in the manor itself, and therefore cannot contract for any certain interest thereout: but the lord of the manor may give him a special power to make leases for years as he may do to any stranger ; and then such leases, if they are pursu- ant to the power, and made in tlie name of the lord, will be as good as leases by the lord himself. A general bailiff of a manor may make leases at will without any special author- ity, because, having to collect an answer for the rents of the manor to liis lord, if he could not let leases at will the lord might sustain great prejudice by absence, sickness, or other incapacity to make leases when any of the former leases were expired ; and such leases at will are for the benefit of the lord, and can be no ways prejudicial to him, because he may determine his will when he thinks fit. Such, however, must be taken to be strict tenancies at will, and not from year to year (u). (u) Shopland v. Rydler, Cro. Jac. 55; Gybson v. Searls, Cro. Jac. 84, 176. 112 ♦CHAPTER II. TO WHOM TERMS MAY BE GRANTED. [*68] SECT 1. 2. 9. 10. PAGE Generally 68 Ecclesiastical Persons ... 08 Trustees for Charitable Uses 69 Infants 70 Married Women 71 Lunatics 72 Convicts 72 Aliens 72 Corporations 73 Parish Officers 74 11. To Trustees of Friendly So- cieties 12. Trustees of Public Baths and Wash-houses .... 13. Trustees of Free Public Li braries, Museums, &c. . 14. Ratepayers for Public Im provements .... 15. Trustees of Renewable Lease holds 16. Agents and Trustees . 77 77 78 Sect. 1. — Generally. General rule. — Every person who is not rendered incom- petent by some legal disability is capable of being a lessee.^ Sect. 2. — To Ecclesiastical Persons? By 1 & 2 Vict. c. 106, s. 28, "it shall not be lawful for any spiritual person, holding any cathedral preferment or bene- 1 In this miscellaneous class may be named the United States government. Mills V. United States, 19 Ct. of Claims, 79 ; Conn. Mut. Life Ins. Co. v. U. S., 21 Ct. of Claims, 195. In the first-named case written leases approved by Generals Augur, Ord, and Sheridan were held void because not approved by the quartermaster-general, but there was held to have arisen an implied tenancy, the government having occupied the premises and erected a fort thereon with the consent of the owner, and vouchers for the pa3'ment of several years' rent having, by orders of the Secretary of War, been sent to the treasury for settlement. An unincorporated society or club may take a lease. Alexander v. ToUes- ton Club, 110 111. 05. And a lease " during the existence of said club" will continue notwithstanding it is afterwards incorporated. The park commissioners or directors of a public park may take a lease. The Queen ;-. Miller, 4 Russ. & Geld. (N. S.) 361. 2 The civil powers of ecclesiastical corporations are the same as those of secular corporations in America. Whether they can take leases depends upon the extent of their express or implied powers as determined by their charters and the objects of their organization. See ante, eh. 1, sec. 12, notes. 113 *69 TO WHOM TERMS GRANTED. [Ch. II. S. 3. lice, or any curacy or lectureship, or who shall be licensed or otherwise allowed to perform the duties of any ecclesias- tical office whatever, to take to farm for occupation by him- self, by lease, grant, words, or otherwise, for term of life, or of years, or at will, any lands, exceeding eighty acres in the whole, for the purpose of occupying, or using, or cultivating the same, without the permission in writing of the bishop of the diocese, specially given for that purpose under his hand ; and every such permission to any spiritual person to take farm, for the purpose aforesaid, any greater quantity of land than eighty acres shall specify the number of years, not exceeding seven, for which such permission is given : and every such spiritual person, who shall, without such permis- sion, so take to faini any greater quantity of land than eighty acres, shall forfeit for every acre of land above eighty acres, so taken to farm, the sum of fort}^ shillings for each 3-ear dur- ing or in which he shall so occupy, use or cultivate such land, contrary to the provisions aforesaid." By sect. 124, the word " benefice " is explained to mean benefices with cure of souls, and no others ; and to comprehend all parishes, per- [*69] petual curacies, donatives, endowed public * chapels, parochial chapelries or districts belonging or reputed to belong, or annexed or reputed to be annexed, to any church or chapel. A lease made contrary to the provisions is not void, but voidable merely on an information brought for holding a quantity of land above eighty acres. Sect. 3. — To Trustees for Charitable Uses} The Mortmain Acts. — Leases of land in England or Wales to trustees for cliaritahle uses must (like other conveyances) ^ Whc'tlior trustees in America can take leases depends upon tlie extent of their exjjress and implied powers. Tru.stees under continuinj^ or permanent trusts necessarily have implied power (unless restrained by the trust instrument or by statute) to take leases, 80 far as necessary, for tlie purposes of the trust. Likewise, trustees under temi)orary trusts have power to take short leases or leases at will, if neces- sary to successfully carry out the objects of tlie trust. See ante, ch. 1, sec. 17, note. 114 Cii. II. S. 3.] TO TRUSTEES FOR CHARITABLE USES. *70 be made according to the Mortmain Acts (a). They must be by deed, sealed and delivered in the presence of two or more credible witnesses (6), twelve calendar months at least before the death of the grantor, and inrolled in chancery within six calendar months next after the execution thereof, and must be made to take effect in possession for the chari- table uses intended immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever for the benefit of the grantor, or of any person or persons claim- ing under him, other than and except such as are specially permitted by the above-mentioned acts. By 26 & 27 Vict. c. 106, " Every deed or assurance by which any land shall have been demised for any term of years for any charitable use shall, for all the purposes of the said recited acts, be deemed to have been made to take effect for the charitable use thereby intended, if the term for which such land shall have been thereby demised was thereby made to commence and take effect in possession at any time within one year from the date of such deed or assurance." A deed which is merely colourable as to the consideration, and which is framed to evade the provisions of the Mortmain Acts, is fraudulent and void as against the grantor's heir (c). A man demised to his sister lands for twenty years at a pepper- corn rent. Three months afterwards he gfranted the same lands to charitable uses, subject to the lease. Held that such grant was an evasion of the statute and void (^d). The Mortmain Acts do not extend to lands in Scotland or Ireland, nor to grants, &c., to the Universities of Oxford or Cambridge, or any colleges or' houses of learning therein, or to the Colleges of Eton, Winchester, or West- minster. When lands are already in * mortmain, a [*70] («) 9 Geo. 2, c. 36 ; 9 Geo. 4, c. 85 ; (r) Doe d. Williams v. Lloyd, 5 24 & 25 Vict, c. 9; 25 & 2G Vict. c. Bin^. N. C. 74L 17; 26 & 27 Viot. c. 106; 27 Vict. c. (d) Wickham v. Marquis of Bath, 13; 29 & 30 Vict. c. 57. L. R., 1 Eq. 17; 35 Beav. 59; 35 L. (b) Wiackmh v. Marquis of Bath, J., Ch. 5. 35 L. J., Cii. 5; L. R., 1 Eq. 17 ; 35 Beav. 59. 115 *70 TO WHOM TEEMS GRAFTED. [Cii. II. S. 4. lease thereof to charitable uses is not within the 9 Geo. 2, c. 36 0'). Exemption of Art Buildings, &c. — By 31 & 32 Vict. C. 44, intituled ^^ An Act for facilitating the acquisition and enjoy- ment of sites for Buildings for Religious, Educational, Lit- erary, Scientific, and other Charitable purposes," leases, &c., of land not exceeding two acres bond fide made to trustees of a society for any of the above purposes, for full rent or value, are exempt from the provisions of the Mortmain Acts (9 Geo. 2, c. 36, and 24 & 25 Vict. c. 9, s. 2). Sect. 4, — To Infants.^ "When void or voidable. — Leases to infants are not abso- lutely void, but voidable by them upon attaining their majority. And it would seem that an infant who has taken possession under a lease which is disadvantageous to him, is liable if he has not disclaimed on attaining his full age (/'). Even during infancy he may be liable for the use and occu- pation of necessary/ lodgings or apartments suitable to his state and degree (]ar\ey, 8 T. M. 578. W. H82; Att.-Gon. v. CJlyn, 12 Sim. (h) Lowe v. Griffiths, 1 Scott, 458. 84 ; Ashton v. Jones, 28 P.eav. 4G0. (0 See Smith, L. & T. 70. (/) Bull. N. P. 177 ; Ketsey's case, ( /) See North Western Hail. Co. v. Cro. .Tac. .320 ; Baylis v. Dyneley, .'J McMieliael, 5 Ex. 128. M. &. S. 477; Holmes ;;. BloKg, 8 (/!) Holmes c. niofrg, 8 Taunt. .%. Taunt. .%. ' For Aineriean autlioritics upon valiility of infant's contracts, sec ante, ch. 1, sec. I'J, notes. 116 Ch. II. S. 5.] LEASES TO MARRIED WOMEN. *71 escence for so long a period would be evidence from which a jury might infer an affirmance of the lease. If the infant lessee elect to annul a lease under which he has occupied, he cannot recover the premium paid for it, although subsequent events may effect a complete failure of the ol)ject for which the premium was paid (/c). In such a case there would have been only a partial, not a total failure of consid- eration ; if the failure be total the infant can recover (?). Avoidance for misrepresentation of age. — If a lease be set aside at the instance of the lessor, on the ground that the lessee is an infant, and obtained the lease on the * misrepresentation that he was of full age, the les- [*71] sor cannot recover for use and occupation (w). Infant jointly interested. — If a person jointly interested with an infant in a lease obtain a renewal to himself only, and the lease prove beneficial, he is held to have acted as trustee, and the infant may claim his share of the benefit ; but if it do not prove beneficial, he must take it upon him- self (w). Renewal of leases to infants. — By virtue of 1 Will. 4, c. Q5, s. 12, leases to infants may, under the direction of the Chancery Division of the High Court (o), be surrendered and renewed. This act applies equall}'', whether the interest of the infant be legal or equitable (^). Sect. 5. — To Married Women} At common law, a married woman may be a lessee, her husband's express assent to the lease not being necessary, as (/) Corpe V. Overton, 10 Binj?. 252; (i?) Ex parte Grace, 1 B. & P. 376. and see Everett v. Wilkins, 29 L. T. (o) Judicature Act, 1873, s. 34. 840. (/O In re Griffiths, W. N. for April (/«) Lempriere v. Lange, L. R., 12 4th, 1884. Ch. D. 675 ; 41 L. T. 378; 27 W. R. 879. ^ For American authorities upon the contracts of married women, both at common law and under the enabling statutes, see ante, ch. 1, sec. 22, notes. At common law a married woman was absolutely incapable of contracting, and, of course, could neither give nor take leases. This disability largely remained until within a very few j^ears. Now, by virtue of various enabling statutes, she has power under certain restrictions to make contracts as if sole. 117 *71 TO WHOM TERMS GRANTED. [Ch. II. S. 5. the estate vests until he signifies his dissent (and and wife, the wife cannot disagree to it during the life of her husband, and, if slie acquiesce after his death, she will be liable for all arrears of rent which accrued during his lifetime, and may be charged with waste during the cover- ture (^). But it is said, however, that if there be any special covenants inserted in the lease, she is not bound by them after the death of her husband, although she continues tenant by force of the demise (?/ ). Renewal of leases. — By 1 Will. 4, c. 65, s. 12, leases to married women 'may, under the directions of the Chancery Division of the High Court (o), be surrendered and renewed. (7) Swainc v. IIoliujui, Hob. 204; (0 2 Inst. 303; 2 KoU. 827, 1, 10, Co. Lit. 3 a. 2'); Com. Dig. tit. Baron and Feme (r) Co. Lit. 3 a. (S. 2). (s) Gaston r. Frankum, 2 De G. & («) 1 Roll. Abr. 349, pi. 2 ; Brownl. Sm. 561; Fry, s. 157. 31 ; Dyer, 13 b. 'I'he common law still prevails except so far as cxiiressly clianged. Tlie extent of tliese cliantjes can be accurately asccrtaiiii'd only liy consulting the statutes of the several states. ' A lease to a wife to wliich lier husband does not dissent being her cbattel real, belonged at common law to lier husband, and in ejectment brought against him by the wifc'.s lessor, liusband is estopped to deny lessor's title. Lucas i-. IJroolcs, lb Wall. 4::(i. 4r)l. 118 Ch. II. S. 8.] LEASES TO ALIENS AND DENIZENS. *72 * Sect. 6. — To Lunatics} [*72] Liability of. — Idiots and lunatics may take leases for their benefit (y). Use and occupation cannot be maintained on a written agreement entered into by a lunatic to take a liouse which is unnecessary, if the lessor was aware of it, and took advantage of the lunatic's situation (:r). Renewal of leases. — Committees of lunatics may, by 16 c^' 17 Vict. c. 70 (?/), under the direction of the Lord Chan- cellor, surrender leases and take new ones for the benefit of the lunatic. Sect. 7. — To Convicts. The leaseholds of a convict come under the operation of the act 33 & 34 Vict. c. 23, which was passed in 1870 to abolish forfeitures for treason or felony. At common law the leaseholds of persons attainted of treason or felony became forfeited, Math their other property, to the crown (z). But by the 1st section of the Act of 1870, it is provided that no conviction for treason or felony, or felo de se, shall cause any forfeiture or escheat («). Sect. 8. — To Aliens ^ and Denizens.^ Alien Act, 1870. — The rights of aliens to hold 'property have been regulated by a series of statutes culminating in (v) Co. Lit. 2 b. (2) Co. Lit. 2 b. (.t) Dane v. Viscountess Kirkwall, (o) See further provisions of this 8 C. & P. 679. act, ante, Chap. I., Sect. 25, p. 47. ((/) Ante, Ch. I., Sect. 23. ^ For American authorities upon contracts of insane persons, &c., and their conuiuttues. see ante, ch. 1, sec. 23, notes. " Alien's rights at common law and under enabling statutes. — At common law an alien was absolutely incapable of taking real property by descent. Jackson v. Luun, 3 Johns. Cas. (N. Y.) 100, 120 (per Kent, J.) Hunt V. Warnickes' Heirs, Hardin (Ky.) 61 ; Fox v. Southack, 12 Mass 143, 148 (per Jackson, J.); People r. Conklin, 2 Hill (N. Y.) 67; Doe v Ilorniblea, 2 Hayw. (N. C.) 36; 2 Kent's Com. (13th ed.) sec. 53, 54 Neither could one alien inherit from another. Wilbur v. Tobey, 16 Pick. 177 Nor could any one inherit by representation tlirough an alien. Levy v 119 *72 TO WHOM TERMS GRANTED. [Ch. II. S. 8. the Naturalization Act, 1870 (33 Vict. c. 14), which repealed ten previous statutes. Of the repealed acts, it will be sufficient to refer shortly to two. By 32 Hen. 8, c. 16, s. 13 (6), leases of dwelUng- Jiouses or shops granted to any stranger artificer were made void. That act did not extend to assignments to aliens of leases previously granted to natural-born subjects (c). By (6) Repealed, Stat. Law Rev. Act. (c) Wootten v. Steffenoni, 12 M. & W. 129. M'Cartee, G Pet. 102; Jackson v. Green, 7 Wend. (N. Y.) 333; Jackson v. Fitz Simmons, 10 Wend. (N. Y.) 9. In all such cases, if there were no other lieirs, the land escheated to the estate at once and without office found. An alien wife of a citizen was not entitled to dower, Kelly v. Harrison, 3 Johns. Cas. (N. Y.) 470; nor an alien husband to tenancy by the curtesy in lands here, Foss v. Crisp, 20 Pick. 121. Aliens might take by devise. Craig v. Leslie, 3 Wheat. 568, 589 (except in Xortli Carolina, Trustees of University v. , 2 Hayw. (N. C.) 104 ; Gilniour v. Admrs. of Kay, &c., 2 lb. 108). And one alien might devise to a citizen or another alien. Fairfa.\'s Devisee i'. Hunter's Lessee, 7 Cranch, 603, 6.30 (per Johnson, J.). An alien might take realty by purchase. Governeur's Heirs v. Robertson, 11 Wiieat. 332; Wilbur v. Tobey, 16 Pick. 177, 179 (per Shaw, C. J.) ; Jack- son V. Beach, 1 Johns. Cas. (N. Y.) 399; Jackson v. Lunn, 3 Id. 109, 112, 120 (per Radcliff & Kent, JJ.) ; Waugh v. Riley, 8 Met. 290; Cross r. De Valle, 1 Wall. 1, 13 (per Grier, J.); Taylor v. Benham, 5 How. 233, 270; 2 Kent's Cora. (13th ed.) sec. 54. In all cases, however, whether his title was acquired by devise or purchase, the aliens might be divested of it by an inquest of office. If he should die without devising it or otherwise dispos- ing of the realty, it would escheat to the estate, since an alien could not trans- mit by descent. 2 Kent's Com. sec. 54. An alien might be a trustee, but the trust would be voidable by tlie state (2 Kent's Com. sec. 62); Hubbard v. Goodwin, 3 Leigli (Va.) 492, 511, 512. And equity would not raise a resulting trust in favor of an alien (per Tucker, J., supra, pp. 511, 512). Tiiey are capable of acquiring, holding, and transmitting personal property in like manner as our own citizens. 2 Kent's Com. sec. 62. Alien's rights under enabling statutes. — Disabilities as to realty are all removed in Louisiana, Pennsylvania, New Jersey, Maryland, Micliigan, Illinois, ■ Massachusetts, Connecticut, Iowa, Wisconsin, Ohio, Maine, and Florida; and in Missouri, Mississippi, California, and New Mampsliire from resident aliens; and in Kentucky after they liave resided in tiie state two years, and in North Carolina and Vermont upon complying witli certain con- stitutional provisions. 1 Taylor's Land. & Tenant (8tli ed.) sec. 143-145. ^Denizens. — "Tlie American editor of Wharton's Diet, says tliat deni- zens are not known in the United States, and cites Walker's Am. Law; but Bouvier says tiiis condition has been created by statute in South Carolina." Abl)()tt's Law. Diet. " In Soutli Carolina, and periuips in otiier states, tiiis civil condition is well known to the law, iiaving been created by statute." Bouv. Law Diet. 120 Cii. II. S. 9.] LEASES TO ALIENS AND DENIZENS. *73 7 & 8 Vict. c. 6(j, s. 4, aliens were enabled to liold personal property of all kinds, except cJuifteh real [i.e., terms of years], as effectually as natural-born sul)jects ; and by sect. 5 of the same act " every alien being the subject of a friendly state " was enabled to hold lands or houses for the purpose of resi- dence or business for any term of years not exceeding twenty-one years. Alien may take lease. — But all statutory restric- tions appear to be done away by the Alien *Act, [*73] 1870 (33 Vict. c. 14), which enacts (sect. 2), that "real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject ; " provided that this section shall not confer any right on an alien to hold real property situate out of the United King- dom, or to " any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him," and " that this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the passing of this act, or in pursuance of any devolution by law on the death of any person dying before the passing of this act." Alien enemies. — Alien enemies cannot hold leases for the purpose of habitation or commerce, or for an}^ other pur- pose ((?), and this restriction does not appear to be done away by the Act of 1870. Denizens. — A denizen, i.e., an alien born, who has obtained ex donatione regis letters-patent to make him an English subject (e), may be a lessee, like a natural-born subject (/), independently of the Alien Acts. Sect. 9. — To Corporations. Leases to corporations. — A corporation aggregate may take any chattel, as a lease, &c., in its corporate capacity, (d) See Alcinous v. Negren, 4 E. & (f) 1 Blac. Com. 374; Bendl. 10, B. 217. pi. 40; 32 Hen. 8, c. 16, s. 13. (e) Co. Lit. 129 a ; Cole Ejec. 570. 121 *73 TO WHOM TERMS GRANTED. [Cu. II. S. 0. which shall go in succession, because it is always in be- ing (^).^ But regularly no chattel shall go in succession in case of a sole corporation ; therefore, if a lease for years be made to a bishop and his successors, and the bishop die, it shall not go to his successors, but to his executors (Ji) ; by custom, however, it may, as in the instance of the Chamber- lain of London (T). Leases to members. — One individual of a corporation aggre- (.7) Bac. Abr. tit. Corporations (E. {h) Co. Lit. 46 b. 4).' (i) 2 Bac. Abr. 14. 'Leases to corporations. — Corporations may take leases, not ultra vires, of either realty or personalty. Peterborough R. R. Co. v. Nashua & L. R. R. Co., 59 N. H. 385; Carroll v. St. John's Society, 125 Mass. 565; Crawford v. Longstreet, 43 N. J. L. 325, 329, 330, 381. Under circumstances if they take an ultra vires lease, and occupy under it, they must pay rent. Camden & At. R. R. Co. v. Mays Landing, &c., R. R. Co., 48 N. J. L. 530. Likewise it has been held that if the receiver of a lessee road, which has taken an ultra vires lease, continue to occupy, he must pay rent. Woodruff i'. Erie Ry. Co., 93 N. Y. 609. And a corporation must pay rent under a lease in writing (for five years) taken by committee duly authorized by vote in their own names. Carroll v. St. Johns Society, 125 Mass. 565. A corporation cannot ordinarily take a lease of the road and franchises of another company without special statutory authority. Penn. R. R. Co. i;. St. Louis, Alton, &c., R. R., 118 U. S. 290; Board, &c. v. Lafayette, &c., R. R. Co., 50 Ind. 85, 110; Winch v. Birk. Lan. & Chcs. June. R. R. Co., 13 Eng. Law & Eq. 506; Beman v. Rufford, 6 Id. 106; Gt. North. Ry. Co. v. East. Count. R. Co., 12 Id. 224; East Anglian Ry. Co. v. Eastern Counties Ry. Co., 11 C. B. 775; Eastern County Ry. Co. i-.'Hawkcs, 5 H. L. Cas. 331 ; T. & B. R. R. Co. V. B., H. T. & W. Ry. Co., 86 N. Y. 107, 117 {pvr Dunforth, J.) ; Wood r. B. & B. R. R. Co., 8 Piiila. 94. It may, however, if it have such authority. Black v. Delaware & Karitan Canal Co., 22 N. J. Eq. 130; Phila. & Erie R. R. Co. v. Catawissa R. R. Co., 53 Pa. St. 20; Durfee v. Old Colony, &c., R. R. Co., 5 Allen (Mass.) 230; Railway Co. v. Vance, 96 U. S. 450. And the authority may be granted by a general statute. Fisher v. N. Y. C. & H. R. R. Co., 46 N. Y. (>\\ ; People v. Albany & Vt. R. R. Co., 77 N. Y. 232. A foreign corporation may take lease of domestic property for an office Jiiid must jiay the rent. Steamboat Co. v. McCutcheon, 13 Pa. St. 13. "A statutory corporation, created by act of Parliament for a jjarticular purpose, is limited, as to all its powers, by the purposes of its incorporation as defined in that act." Lord Selborne in Ashbury Ry. Carriage & Iron Co. V. Riche, L. R., 7 II. L. 653. And persons dealing witli (corporations are boun). Sect. 8. — Right of Sporting. Right of sporting. — A demise of an incorporeal heredita- ment can only be valid by deed (c), unless granted with some corporeal hereditament as appurtenant thereto ((?). The right of hunting, shooting, fishing, i&c. is an interest in the realty, and a grant of it is a licence of a profit a prendre (e). Such rights can be granted or demised only by deed. But if the lessee has actually used, occupied and enjoyed such rights under a parol agreement, he must pay for such enjoyment, and may be sued in an action for use and occupation (/). A corporation aggregate may maintain an action for use and occupation of tolls, although they did not grant them by any instrument under their common seal (^). Sect. 9. — Chattels. Leases of chattels. — Goods and chattels may be let for years, though the terms "landlord " and "tenant" are [*84] inapplicable to such letting, and the interest * of the (a) Co. Lit. 144 b; Com. Dig. tit. (J) ^qc post, Chap. XVIII., Sect, 6, Annuity (A. 1). "Game." (6) Hae. Abr. tit. Leases ; Thomas (e) Ewart v. Graham, 7 II. L. Cas. V. Fredericks, 10 Q. B. 775; Co. Lit. ?.Z\ ; 20 L. J., Ex. 88. 144 b; Com. Dig. tit. Annuity (A. 1), (/) Tlionias v. Fredericks, 10 Q. (E.). B. 775; Ilolford r. Pritchard, .'J E.xch. (r) Duke of Somerset v. Fogweli, 70.3; post, Chap. XIV. 5 B. & C. 875, 882, 880; Bird r. (//) Mayor, &c., of Carmarthen v. IIif,'gin8on, 2 A. & E. 090; A. & E. Lewis, C. & P. 008 ; Drury Lane 824. Tiieatre Co. i;. Ciiapinan, 1 C. & K. 14. 13G Ch. III. S. 9.] LEASES OF CHATTELS. *84 lessee therein differs from the interest- which he has in lands. If a man lease for years a stock of live cattle, such lease is good, and the lessee has the use and profits of them during the term ; but he cannot destroy, kill, sell or give them away without, it seems, being liable to an action of trespass (A). The lessor, however, has not any reversion in them, as in the case of lands, to grant over to another either during the term or after, till the lessee has re-deliv- ered them to him ; for the lessor has only a possibility of property in case they all outlive the term ; for if any of them die during the term, the lessor cannot have them replaced after the term ; and during the term he has nothing to do with them, and consequently of such as die the property vests absolutely in the lessee. So, whether they live or die, yet all the young ones coming of them, as lambs, calves, &c., belong absolutely to the lessee as profits arising and severed from the principal, since otherwise the lessee would pay his rent for nothing ; and therefore this differs from a lease of dead goods and chattels, for there, if anything be added for the repairing, mending or improving thereof, the lessor shall have the improvements and additions, together with the principal, after the lease ended, because they cannot be sev- ered without destroying or spoiling the principal (^). Leases of furniture. — A mixed payment of rent for lands and goods is held to issue out of the land alone, and the rent may be distrained for (^). (k) Lit. s. 71 ; Doe d. Griffith v. (k) Newman v. Anderton, 2 B. & P. Lloyd, 3 Esp. 78. 224; Sclby v. Greaves, L. R., 3 C. P. (0 Bac. Abr. tit. Leases (A.) ; Col- 594. lins V. Harding, Cro. Eliz. 606. 137 [*85] • * CHAPTER IV. THE AGREE^VIENT FOR A LEASE. SECT. PAGE 1. Agreement for Lease must be in Writing 85 (a) What Agreement must state 88 (b) Signature of Agreement 92 Effect of Parol Alterations 93 2. Stamp 94 3. Remedies for Breach ... 94 4. Action for Specific Perform- ance 96 (a) Oral Agreement with Part Performance . . . 100 (b) Completeness of Coh- tract 101 What Acceptance suffi- cient 103 Revocation of Proposal . 103 Counter-Proposal . . . 103 (c) Agreement subject to preparation of formal Con- tract 104 SECT. FAOS 5. Grounds for Refusal of Spe- cific Performance 105 Indefiniteness . . . 105 Misrepresentation 106 Concealment . . . 107 Illegalitv .... 107 Insufficiency of Title 108 Hardship .... 109 Breach of Trust . . 110 Forfeiture .... 110 Impossibility . . . 111 Failure of Condition 113 Laches . 115 6. Specific Performance [yy or against Particular Persons 117 7. Decree for Specific Per form . 119 "Usual Covenants" . 120 8. Solicitor's Charges . . . 123 Sect. 1. — Aii Agreement for Lease must be in Writing. We shall see presently (a) that, by the combined operation of the Statute of Frauds and 8 & 9 Vict. c. 106, s. 3, a lease for more than three years is void unless made by deed, and that leases for three years or less may be made by parol.^ But although a lease for three years may be made by parol, an agreement for a lease for however short a term must, in (a) Post, Chap. V. 1 The Statute of Frauds. —The Statute of Frauds has been re-enacted with vari.'itions in all tlie American states and provinces. I>eases, except for specified limited jjcriods, arc required to be in writing, but not in the majority of them, even when exceeding tiie limited periods, to be by deed. See post, Chap, v., note. 138 Ch. IV. S. 1.] AGREEMENT MUST BE IN WRITING. *86 order to be sued ujjon as such, be in writing signed by the party to be sued. For by the 4th section of the Statute of Frauds, it is enacted that " no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning tJiem^ or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof^ shall be in writing and signed hy the party to he charged therewith^ or some other person by liim lawfully authorized " (^).^ An agreement for a lease is a contract for an interest in lands within the meaning of sect. 4, and has always been so treated both at law (c) and in equity (d). We shall see presently, however, that * effect has been fre- [*86] quently given both at law and in equity to parol agreements. At law a party entering as a tenant, and evi- dencing his intention to continue such, has always been treated as a tenant from year to year upon the terms of the agreement ; while in equity a " ptn-t performance " by the one party has frequently entitled him to a specific perfor- mance by the other. Effect of agreement. — It was said by Jessel, M. R., in Walsh V. Lonsdale (e), that the effect of the Judicature Acts (see Judicature Act, 1873, s. 25, sub-s. 7) is that a tenant holding under an agreement for a lease of which specific performance (6) Not saying "by writing," as in not execute a parol agreement, not in sects. 1, 3. part performed, and it is said by (c) See especially Edge I'. Strafford, Story {ubi supra) to be obvious that 1 Tyr. 295; 1 Cr. & J, 391. courts of equity are bound as much (rf) Story Eq. vol. 1, s. 754. It as courts of law by the provisions of may be doubted whether the word the statute. "action" in the 4th secti17. It is, however, no longer a lease in equity if proposed lessee has broken the intended covenants. Swain v. Ayres, 20 Q. B. D. 686. 140 Ch. IV. S. 1.] AGREEMENT MUST BE IN WRITING. *87 What is an interest in land. — The words " any in- terest in land " in the 4th section of the Statute * of [*87] Frauds, are very wide, and include an interest how- ever small for a term however short, provided tuat the tenant is to have exclusive possession. An early decision to this effect, in which the statute was held to apply to a contract to let lodgings (Zs), was emphatically affirmed by the leading case of Edge v. Strafford (i), where the defendant had agreed by parol to take the ready-furnished lodgings of the plaintiff for two or three years, and the Court held that no action could be maintained for breach of the agreement. But where the contract was for board and lodging at a boarding- house, but in no specific rooms, it was held that although the contract was unwritten, an action lay for the breach (Z:) ; and the two cases are clearly distinguishable on the ground that exclusive possession was bargained for in one but not in the other.^ Contract to procure lease. — A contract to procure a lease must also be in writing, although it is entered into by a per- son who has no interest in the lease himself (Z). " Collateral " agreement. — If the agreement be to let and (h) Inman v. Stamp, 1 Stark. 12. P. 191 ; 30 L. J., C. P. 58 ; 23 L. T. (i) 1 Tyr. 295 ; 1 Cr. & J. 391. 495. In tliis case the contract was to (k) Wright V. Stavert, 2 E. & E. jirociire the assijjiinient of a lease, 721 ; 29 L. J., Q. B. 101. but the principle is tlie same. (/) Horsey v. Graham, L. R., 5 C. 1 Lodgings; board and lodgings, &c. — In White r. Maynarrl, 111 Mass. 250, and in Wilson r. Martin, 1 Denio (N. Y.) 602, it was hehl that con- tracts for board and lodging, though in designated rooms, were not witliin the statute. Bronson, J., in the last-named case, saying, that the contract "was nothing more than an agreement for board and lodging, with a designation of the particular rooms which the defendant was to occupy," and the relation of landlord and tenant did not arise. Justice Gray, in the first-named case, distinguishes Inman r. Camp and Edge V. Strafford (cited by the author), saying it did not appear in those cases that the rooms were in a boarding-house. He cites Wright v. Stovert witli approval. In Porter r. Merrill, 124 Mass. 534, a contract for letting certain specified rooms in an apartment house, containing a restaurant, with an agreement to serve a private table, was held to create a tenancy. Ames, J., distinguishes it from White v. Maynard, as not being case of "a contract between the keeper of a boarding-house and a lodger." 141 *88 AGREEMENT FOR LEASE. [Ch. IV. S. 1. do something else for the intending tenant, it must be in writing, unless the two parts of it are severable. Thus, in Mechelen v. Wallace (m), the tenant promised to become such in consideration that the landlord would send in more furni- ture. The landlord did not send in the furniture, but the tenant failed to recover, on the ground that the agreement to send in furniture was an inseparable part of the contract for the lease. Similarly, where the plaintiff agreed to let a house to the defendant, and to sell him the furniture and fixtures, it was held that this was a contract which must be in writing (n). But in Angell v. Duke (o), the court held that an agree- ment that the landlord should do repairs and send in furni- ture was collateral to the main agreement to let, so as not to require to be in writing within the statute, although the tenant ultimately failed to recover upon it on the ground that parol evidence is inadmissible to vary a written agree- ment (^p). "Collateral" agreement. — In Adams ?'. Hagger, the plain- tiff agreed to grant to the defendant a lease at a certain rent for 99 years of a piece of land so soon as the defendant should have erected a house upon it, and the defendant undertook until the execution of the lease to " hold the said piece of land and other the premises at the rent and subject to the conditions to be contained " in the lease. It [*88] was held by the Court of Appeal * that the defend- ant was lial)le to pay the rent, although he had not entered upon or taken possession of the piece of land {q). An agreement after lease granted that the landlord shall enlarge the premises, and the tenant pay a percentage on the landlord's outlay, is not within the statute (r), and therefore need not be in writing. This was held in two cases (r), (m) 7 A. & E. 40 (decided on de- 750; 42 L.J., Ch. 840; 20 L. T. 234; nmrrer). 21 W. R. 802. (n) Vaughan v. Hancock, 3 C. B. (/>) Angell ;•. Duke, 32 L. T. 320. 7G0. («7) Adams v. Hagger, L. R., 4 Q. (o) L. R., 10 Q. B. 174 ; 44 L. J., B. 1). 480; 27 W. R. 402 — C. A. Q. B. 78 ; 32 L. T. 25. And see Mor- (r) IIolz v. Roebuck, 7 Taunt. 157 ; gan D. GriffitliH, L. R., Ex. 70; 40 Donellan v. Read, 3 B. & Ad. 800; L. .1., Ex. 40 ; 23 L. T. 783 ; 10 W. R. see also Lambert v. Norris, 2 M. & W. 057 ; Erskine v. Adeane, L. R., 8 Ch. 333. 142 Ch. IV. S. 1.] AGREEMENT MUST BE IN WRITING. *88 where the landlord having executed improvements recovered the consideration money by action at law, and the principle of such cases would seem to apply to an action for specilic performance. Contract itself need not be in writing. — The 4th section of the Statute of Frauds does not absolutely require the con- tract itself to be in writing, but allows the alternative of some written " memorandum or note thereof " properly signed ; and the memorandum or note need not be prepared at the time, nor be intended as a contract, or even as evi- dence thereof. A letter written by the defendant to the plaintiff, which mentions all the material terms of the con- tract, may be sufficient, although the defendant thereby attempts ta deny or repudiate his liability (.s). A correspond- ence between the defendant and his own agent, which men- tions all the material terms of the contract, may be suffi- cient (Q. A letter to a third person, mentioning all the material terms of the agreement, may be sufficient (w) ; but if any material terms of the contract be unsettled and dis- puted the writing will not be sufficient (.c). The bare entiy of a steward in the lord's contract book with his tenants is not an evidence of itself that there is an agreement for a lease between the landlord and tenant (?/). (a) What the Agreement for a Lease must state. "Writing must state all material terms, e.g. names. — The agreement, or the memorandum or note thereof (as the case may be) inust state all the material terms of the contract (s),^ (s) Bailey v. Sweeting, 9 C. B., N. n. ; Segood v. Meale, Prec. Ch. 560 ; S. 843; Williinson v. Evans, L. R., 1 Barkwortli v. Young, 4 Drew. 1, 13. C. P. 407 ; 35 L. J., C. P. 224 (these (x) Forster v. Rowland, 7 H. & N. cases were under sect. 17) ; Jackson 103; 30 L. J., Ex, 396. w. Oglander, 2 H. & M. 465; 13 W. (//) Cliarlewood v. Duke of Bcd- R. 936. ford, 1 Atk. 497. (0 Gibson v. Holland, 35 L. J., C. {z) Clarke, app.. Fuller, resp., 16 P. 6. C. B., N. S. 24; 12 W. R. 071. See (?t) Welford v. Beazely, 3 Atk. Fry on Specific Performances, p. 98. 503; Child v. Comber, 3 Swans. 423, ^ A contract within the statute may be part of an entire contract not within it, and so be held binding. 2 Reed on Statute of Frauds, sec. 560; Wentwortli v. Buhler, 3 E. 1). Smith, 305. 143 *89 AGREEMENT FOE LEASE. [Ch. IV. S. 1. ex. gr. : 1. The name of the lessor or his agent (a) ; and 2. The name of the lessee or his agent (6) : but [*89] in each of these cases such a description * of the contracting parties that there cannot be any fair dispute as to their identity is as good as naming them. Such ((?) seems to be the effect of the numerous cases (tZ) in which a contract for the sale of land describing but not naming the vendor, has been held good ; and, as a lease is a sale pro tanto, these cases would seem to be equally applica- ble to an ajjreement for a lease. 3. Writing must state description of property. — The writing must state the name or other df^scription > f the property to be demised (e) ; but the property need not be so described as to identify it ; parol evidence being always admissible upon the question of "parcel or no parcel " (/). "Mr. (a) Warner r. Willington, 3 Drew. App. Cas. 1124; 48 L. J., Ch. 10; 39 523; 25 L. J., Ch. 052 ; ^411en v. Ben- L. T. 173; 26 W. R. 855; ("proprie- nett, 3 Taunt. 169; Cooper i'. Smith, tors" held suffic-icnt description of 15 East, 103; Hughes v. Parker, 8 vendors); Catling v. King, L. R., 5 M. & W. 244; 1 Dowl., N. S. 80; "Cli. D. 660; 46 L. J., Ch. 384; 36 L. Hood r. Lord Barrington, L. R., 6 T. 526; 25 W. R. 550— C. A.; Com- Eq. 218 ; Williams v. Jordan, L. R., mins v. Scott, L. R., 20 Eq. 11 ; 44 L. 6 Ch. D. 517 ; 26 W. R. 230. J., Ch. 563 ; 32 L. T. 420 ; 23 W. R. (6) Squire v. Whitton, 1 H. L. Cas. 498 ; Sale v. Lambert, L. R., 18 Eq. 333; Williams v. Lake, 2 E. & E. 1; 43 L. J., Ch. 740. In Thomas .•. 349; 29 L. J., Q. B. 1 ; Skelton v. Brown, L. R., 1 Q. B. D. 714, the Cole, 1 De Gex & J. 587 ; Hughes v. point also arose, but was not decided. Parker, 8 'SI. & W. 244. (e) Stewart v. AUiston, 1 Mer. 33; (c) See Potter v. Duffield, L. R. Ogilvie r. Foljambe, 3 Mer. 53 ; Ken- 18 Eq. 4 ; 43 L. J., Ch. 472 ; 22 W. R. ncdy v. Lee, 3 Mer. 441, 451 ; Daniels 585, per Jessel, M. R., in which v. Davison, 16 Ves. 249; Price v. "vendor" was held to be not of Griffith, 1 Dc Gex, M. & G. 80; Ilay- itself sufficient. wood v. Cope, 25 Beav. 140. (J) See Rossitcr i-. Miller, L. R., 3 (/) Fry, s. 209; Bleakley v. Smith, The terms of memorandums for leases or other contracts cannot be sup- plied by parol testimony, Parkhurst v. Van Cortlandt, 1 .lolins. Ch. (N. Y.) 273; McKibbin v. Brown, 14 N.J. Eq. 13; Duffield v. Whitlock, IIolT. Ch. (N. Y.) 110 & 26 Wend. (N. Y.) 55; Huff v. Shepard, 58 Mo. 242; Morton V. Dean, 13 Met. (Mass.) 385; Gill v. Bicknell, 2 Cush. (Mass.) 355, 358, 359 (per Sliaw, C. J.); nor varied by sul)sequent parol contract. Brooks i'. Wheclock, 11 Pick. (Mass.) 439. " Unless the essential terms of the bargain and sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute," per Kent, Chan., in Park- burst V. Van Cortlandt, supra, p. 280. 144 Ch. IV. S. 1.] AGREEMENT MUST BE IN WlilTlNG. *90 Ogilvie's house," may be sufficient (,17). "The property in Cable Street," coupled with parol evidence of identity, may be sufficient (A), and so may " the mill property, including cottages in Esher village " (Q, and " the lease and every- thing " for 60?., coupled with parol evidence to show what lease was intended, and with a previous memorandum show- ing what "everything" meant (/c). "Two seams of coal, known as the tM^o-feet coal and the three-feet coal, lying under lands hereafter to be defined as the Bank End Estate," has been held sufficient, the latter words being construed to refer only to the boundaries of the estate, and not to the seams of coal agreed to be demised (/). But where the agreement was indefinite as to the area over which the iron- stone was to be worked, the court (for that and other rea- sons) refused a specific performance (w). An agreement by an incumbent to demise his glebe, containing about 437 acres, " except thirty-seven acres thereof " (which were not specified), was held sufficient, as the lessor, it was said, might elect which thirty-seven acres should be excepted (w). A description of the property by reference to preceding deeds, wherein it is described, is sufficient (0). Difference in quantity. — A mere difference in quantity has never been held a bar to specific performance ; — the Court of Chancery always drew a distinction between the essential and non-essential terms of a contract, and allowed the incapacity to perform it in non-essential terms, to be * made the subject of compensation. In McKenzie [*90] V. Hesketh (|>), for instance, the plaintiff offered to take a lease of a farm of the defendant at a rent of 500Z. per annum, specifying in his tender the closes which he wished 11 Sim. 150; Owen v. Thomas, 3 (/) Haywood w. Cope, 25 Bea v. 140; Myl. & K. 353 ; Price v. Griffith, 1 but see Lancaster v. De Trafford, 31 De Gex, M. & G. 80. L. J., Ch. 554 ; 8 Jur., N. S. 873. (g) Ogilvie v. Foljambe, 3 Mer. (?«) Lancaster z'. De Trafford, sx/im. 61. (?i) Jenkins v. Green, 27 Beav. 437 ; (A) Bleakley v. Smith, 11 Sim. 28 L. J., Ch. 817. 150. (o) Owen v. Thomas, 3 Myl. & K. (i) McMurray v. Spicer, L. R., 5 353. Eq. 527 ; 37 L. J., Ch. 505. (73) McKenzie v. Hesketh, L. R., 7 (k) Horsey v. Graham, L. R., 5 C. Ch. D. 675; 47 L. J., Ch. 231 ; 38 L. P. 191. T. 171. 145 *90 AGREEMENT FOR LEASE. [Cii. IV. S. 1. to take, with acreage, amounting to 249 acres. The defend- ant's agent desired to let only 214 acres with his farm, but he accepted the plaintiff's offer without looking at the acre- age, although he had in fact let one of the closes to another person. Another tender had been made by a former tenant for the same farm, as comprising 235 acres, and the defend- ant's agent admitted that he thought that the plaintiff had tendered for the same quantity as such former tender. The plaintiff sued for specific performance, but was willing to take a lease of 214 acres at a proportionately reduced rent, and Fr}", J., held that the defendant was bound to grant a lease of 214 acres, at a rent reduced from 5001. in the pro- portion of 214 to 235 (p). Defective title. — If a party having title to a part only agrees to let a whole propert}', he will decree to let that part to which he has title, with an abatement of rent (5'). Writing must state the term to be granted. — The writing must state the term to be granted Q''),^ and particularly the time from which the term is to commence (s) ; but it will be sufficient if such time can be inferred, as for instance, if a day be fixed for the payment of a first rent (^). It seems, too, that the court will execute an agreement to grant a lease for three lives unnamed (u). (7) Bnrrow v. Scammell, L. R., 19 R., 6 Ch. I). 153; in which an agree- Ch. D. 175 ; 51 L. J., Ch, 296 ; 45 L. ment to let for a term not specifying T. 606 ; 80 W. R. 310. the date of commencement was held (?•) Bayley, Bart. v. Fitzmaurice by Fry, J., to be a valid agreement to (in error), 8 E. & B. 664; 9 H. L. let for a term commencing on the Cas. 78; Clinan v. Cooke, 1 Sch. & date of tlie agreement; Cox r. Mid- Lef. 22; Cordon v. Trevelyan, 1 dleton, 2 Drew. 209 ; Ilersey v. Gib- Price, 64 ; Hughes r. Parker, 8 M. & lett, 18 Bcav. 174 ; Clarke, app., W. 244 ; 1 Dowl., N. S. 80; Clarke, Fuller, resp. ; and Dolling v. Evans, app., Fuller, rc-^p., 16 C. B., N. S. 24; supra. And sec Nesliem v. Selhy, L. Baumann v. James, L. R., ?, Ch. Ap. R., 7 Ch. 406; Cartwright v. Miller, 508 ; Dolling v. Evans, .36 L. J., Ch. 36 L. T. 398. 474 ; 15 W. R. 394. (0 See Wesley v. Walker, 38 L. T. («') Marshall v. Berridge. L. R., 19 284, per Fry, J. Cli. D. 233 (C. A.) ; 30 W. R. 93, (u) Fitzgerald v. Vicars, 2 Dru. & affirming Blore i-. Sutton, 3 Mer. 237 ; W. 298 ; Dart V. & I'. 661. and overruling Jaqucs r. Millar, L. > Tlodgos I'. Hownrd. 5 R. T. 119. 158 (per Ames, C J.) ; Abecl i'. Radcliff, 13 Johns. (N. Y.) 297, 300, 301 ; Myers r. Forbes, 24 Md. 598. 146 Ch. IV. S. 1] AGREEMENT MUST BE IN WRITING. *91 Agreement not to disturb tenant. — An agreement by a lessee to grant a snblease (not describing it as a sublease^ to an intending tenant at any period be might feel disposed "and not to molest, disturb, or raise the rent" of the intend- ing tenant after he had laid out money on the premises, was held, by the Court of Appeal, to entitle the intending tenant to a sublease for the residue of the term of the lessee, if the intending tenant should so long live (2:) ; but it has been held, also, that a somewhat similar * agreement [*91] is merely personal between the parties, and does not bind a subsequent purchaser of the landlord's interest, with or without notice (?/). Rent. — The writing must also state the premium or fine (if any) agreed to be paid (2), and the rent to be paid («),■' (r) Kusel v. Watson, L. R., 11 Ch. (z) Martin v. Pycroft, 2 De Gex, J). 129; 48 L. J., Ch. iVi; 27 W. R. M. & G. 785; Wood v. Scarth, 2 K. & 714, C. A. Compare Wood v. Davis, J. 33 ; Clifford v. Turrell, 1 You. & 6 L. R., Ir. 50, post, Ch. V., Sect. 6. Coll. C. C. 138; Blagden v. Bradbear, " Construing this agreement," ob- 12 Ves. 466 ; Elmore v. Kingscote, 6 served Bramwell, L. J., " is mere B. & C. 583. guess work." (n) Woolam v. ITearn, 7 Ves. 211 ; (y) Roberts v. Tregaskis, 38 L. T. Gregory v. Mighell, 18 Ves. 328 176, decided shortly before, but not (agreement for fair annual rent to be cited in Kuset v. Watson, from settled by arbitration, held sufficient) ; which, however, it seems to be dis- Powell v. Lovegrove, 8 Ue Gex, M. tinguishable. & G. 80. ^ Rent must be definitely fixed. — Abeel v. Radcliff, 13 Johns. (N. Y.) 297, 300, 301 (per Van Ness, J.) ; Robinson v. Kettletas, 4 Edw. Ch. (N. Y.) 67, 69 ; Pray v. Clark, 113 Mass. 283 (agreement for " rent to be propor- tioned to valuation of said premises at said time," but with no way provided for fixing valuation held insufficient) ; Morrison v. Rossignol, 5 Cal. 64 (rent to be according to value of property insufficient) ; Hopkins v. Oilman, 22 Wis. 476 (rent to be determined by arbitration insufficient for specific per- formance, but injunction granted restraining landlord from taking possession) ; Kelso V. Kelly, 1 Daly (N. Y. Superior Ct.) 419 (rent to be fixed by arbi- trators, and court referred to referees to fix it). These last two cases are consistent with Powell v. Lovegrove (cited by the author), and show that, though courts will not specificalh' enforce agree- ments to submit to arbitration (Noyes v. Marsh, 123 Mass. 286 ; Pearl v. Harris, 121 Id. 390; Tobey v. Bristol, 3 Story, 800), they can find a way to enforce the contract. How far they will be followed in other American courts, quare. A contract for sale, providing that the purchase money shall be paid " on such terms as may be agreed upon between said parties," is too indefinite for enforcement. Huff v. Shepard, 58 Mo. 242. 147 *91 AGREEMENT FOR LEASE. [Ch. IV. S. 1. and should also, though this is not absolutely essential, state whether the rent is to be paid quarterly (5), half-yearl}' or otherwise. If there be no stipulation on that point, it will be payable only at the end of each year of the term (c). Special covenants. — Any special or unusual covenants or stipulations actually agreed on should be stated (c?), and accurately expressed (e). If the tenant agrees to improve the premises, the particulars of what he is to do (being a material part of the contract) must be sufficiently specified, so that a proper covenant may be inserted in the lease; otherwise the contract will be too uncertain to be specifically enforced (/). An agreement, however, for the tenant to do certain specified works and " other works " upon the prop- erty, estimated at from 150?. to 200?., was held not too uncertain to prevent a decree for specific performance, inas- much as the specified works would cost nearly that sum Qg). Vagueness in the language of an agreement may sometimes be cured by evidence of the surrounding circumstances, and of the subsequent conduct of the parties (A). Sometimes an " &c." will not render the contract too uncertain to be spe- cifically enforced (i) ; but if the construction of the agree- ment depends on the meaning of an "&c.," the court can make no decree (¥). It seems that the common and usual covenants and pro- visos need not be mentioned (l). They are implied as part of the contract, and may be added at chambers. (6) Pillins V. Armitage, 12 Ves. 78. (i) Parker v. Taswell, 2 De G. & J. (c) Cooinber v. Howard, 1 C. B. 559; 27 L. J., Ch. 812; Cooper v. 440; Collett r. Curling, 10 Q. B. 785; Hood, 20 Bcav. 299 ; Powell v. Love- Giraud v. Richmond, 2 C. B. 8.']5. grove, 8 De Gex, M. & G. 857. (J) Fry, ss. 221, 222; Brodie r. St. {k) Price v. Griffitii, 1 De Gex, M. Paul, 1 Ves. jun. 820. & G. 80 ; and see Tatham r. Piatt, 9 (e) Doe (/. Marquis of Bute t-. Hare, (iOO ; Stuart v. London and Guest, Bart., 15 M. & W. 100 ; Doe North Western R. Co., 1 De Gex, M. d. Marquis of Bute v. Thompson, 13 & G. 721. M. & W. 494. (0 Fry, ss. 225, 227 ; Ricketts v. (/) Gardner v. Fooks, 15 W. R. Bell, 1 De Gex & Sm. 335; Cosser i-. 888", M. R. CoUinge, 3 Myl. & K. 283; Smith v. ((/) Baumann v. James, L. R., 3 Capron, 7 Hare, 185; Church v. Ch. Ap. 508. Brown, 15 Ves. at p. 205. See fur- (/() Oxford V. Provard, L. R., 2 ]*. ther as to " Usual Covenants," Sect. C. C. 135; Conpland r. Arrowsmith, 1 , post. 18 L. T. 76 148 Cu. IV. S. 1.] AGREEIVIENT MUST BE IN WAITING. *92 * (b) How Agreements may he signed. [*92] Signature. — ; All agreement for a lease must, by virtue of the 4th section of the Statute of Frauds above referred to, be signed hy the party to he charged therewith,^ or his agent thereunto lawfully authorized. It need not be signed by both parties (w).^ The signature to a contract may be in almost any part of the writing (n) : provided it is so placed as to govern and authenticate every material and operative part of the instrument ; but not where it applies only to the particular part where it is introduced (o). A signature in pencil (j^*),^ or by initials Qq^, or by print (r), (m) Boys v. Ayerst, 6 Madd. 323 ; (o) Caton v. Caton, L. R., 2 II. L. Seton V. Slade, 7 Ves. 26-5; Laythorp Cas. 127 ; 36 L. J., Ch. 886. V. Bryant, 2 Bing. N. C. 735. (/>) Lucas v. James, 7 Hare, 410. (h) Fry, ss. 347, 348, 340; Propert (7) Selby v. Selby, 3 Mer. 2; Sug. 1-. Parker, 1 Russ. & Myl. 625 ; Bleak- V. & P., Chap. III., Sect. 4. ley V. Saiith, 11 Sim. 150. (;) Sclieider v. Norris, 2 M. & S. 286. 1 Jacobs V. P. & S. R. R. Co., 8 Cush. (Mass.) 223. 2 Mutuality, &c. ; signature by one party. — Douglass v. Spears, 2 Nott & M'Cord (S. C.) 207; Penniman v. Hartshorn, 13 Mass. 87; Barstow V. Gray, 3 Greenl. (Me.) 400; Ballard v. Walker, 3 Johns. Cas. (N. Y.) 60; Roget V. Merritt, 2 Caines (N. Y.) 117 ; Clason v. Bailey, 14 Johns. (N. Y.) 484, 487 {per Kent, Chan.) ; M'Crea v. Purmort, 16 Wend. (N. Y.) 460; Lan- ing V. Cole, 4 N. J. Eq. 220 ; Old Colony R. R. Co. v. Evans, 6 Gray (Mass.) 25. But see Geiger v. Green, 4 Gill (Md.) 472 ; German v. Machin, 6 Paige (N. Y.) 292; Boucher r. Van Buskirk, 2 A. K. Marsh. (Ky.) 346; Benedict V. Lynch, 1 Johns. Ch. 370, 373, 374. In Benedict v. Lynch, supra, Chancellor Kent expressed opposite views to those subsequently expressed by him in Clason V. Bailey, supra, saying that by the weight of authorit}' contracts signed by only one party were not enforceable by the other, since the obliga- tion was not mutual. The rule is now, however (as said by him in Clason v. Bailey), well settled that covenants, whether based upon covenants or optional conditions, are equally binding when the covenants and conditions have been performed. Matter of Jane Hunter, 1 Edw. Ch. (N. Y.) 1, 5; Frue v. Houghton, 6 Col. 318, 324 ; Cutting v. Dana, 25 N. J. Eq. 265. Vice-Chan. McCoun said, in Matter of Jane Hunter, supra, "The court may therefore in a proper case, where there is a covenant on one side and no mutuality, decree a performance"; and Beck, C. J., in Frue v. Houghton, said, " The promisee in many instances not being bound at all. . . . Upon performance of the condition, however, the contract is said to become abso- lute and mutual in its obligations." 3 Signature with lead pencil sufficient. Clason v. Bailey, 14 Johns. (N. Y.) 484. 149 *92 AGREEMENT FOR LEASE. [Ch. IV. S. 1. seems to be sufficient, and so does the signature of a marks- man (s). Signature by agent. — A signature by an agent, thereunto "Lawfully authorized," is sufficient, by the very terms of the 4th section of the Statute of Frauds,^ and such authority need not be in writing (<). But the authority of the agent to sign such contract must be proved, if disputed (w). Such authority is revoked by the death of the principal, although the agent does not know of the death (2;). Proof of a sub- sequent ratification will be sufficient evidence of a prior authority (i/). On the other hand, an oral revocation of any such authority may be proved (z) : unless the agent was appointed by deed; and perhaps even then (a). An (s) See Baker v. Dening, 8 A. & E. 24, 3G ; Baines v. Ewing, 35 L. J., Ex. 94. 194. (0 Coles I'. Trecothick, 9 Ves. 2o4, (x) Carr v. Levingston, 35 Beav. 250 ; Clinan v. Cooke, 1 Sch. & Lef. 41. 22; Dyas v. Cruise, 2 Jon. & Lat. (//) Fry, s. 355; Maclean v. Dunn, 461 ; Heard v. Pilley, L. R., 4 Ch. 4 Bing. 722 ; Ridgway v. Wharton, G Ap. 548; Smith L. & T. 82, 93 (2nd H. L. Cas. 238, 29(5; Bayley, Bart. v. ed.). Fitzmaurice, 8 E. & B. 664; 9 H. L. («) Blore V. Sutton, 3 Mer. 237 ; Cas. 78. Ridgway r. Wharton, 3 De Gex, M. (2) Manser v. Back, 6 Hare, 443 ; & G. 677; 27 L. J., Ch. 46; 6 H. L. Rex v. Wait, 11 Price, 508; Venning Cas. 238; Firth v. Greenwood, 1 Jur., v. Bray, 2 B. & S. 502 ; 31 I,. J., Q. N. S. 866 ; Forster v. Rowland, 7 H. B. 181. & N. 103; 30 L. J., Ex. 396; Clarke, (a) Venning v. Bray, supra. app., Fuller, resp., 16 C. B., N. S. 1 Agency for both parties; signature. — And the same agent may act for botli parties ; as tor example, a broker may sign for hotli parties in their presence a contract for the sale of goods, Clason v. Bailey, 14 Johns. (N. Y.) 484; and an auctioneer, as agent for botli buyer and seller, lias imi)lied au- thority to write the bidder's name upon tiie memorandum of sale ; and if the memorandum contains all the essential terms of tlie contract, it satisfies tlie statute. Gill v. Bicknell, 2 Cush. (Mass.) .^S, 358, 359 {per Shaw, C. J.) ; Cleaves 1;. Foss, 4 Grcenl. (Me.) 1; Inlibts. of Alna v. Plummer, 4 Id. 258; M'Comb V. Wriglit, 4 Jolms. Ch. (N. Y.) 659; Gordon v. Sims, 2 M'Cord's Cii. (S.C.) 151, 157, 164, 165 (holding that tlie auctioneer's memorandum may be made on loose paper, and if lost, its contents may be proved by parol). If auctioneer's memorandum does not contain essential terms, it is insuf- ficient. Morton i-. Dean, ]'.) Met. (Mass.) 385, 388. Tiie above cases also decide that the agent's authority need not be in writing. "Whoever bids does in elTect autiiorize the au(!tioneer to sij^n his name, if no otiicr person bids a higher sum" (per Weston, J., in Cleaves v. Foss, sujird, J). lOj. 150 Cii. IV. S. 1.] AGREEMENT MUST BE LN WRITING. *93 agent who contracts in his own name may sometimes he compelled specifically to perform the contract (J).^ Defects supplied by subsequent ■writing. — An agreement, note or' memorandum, which is defective in some or one of the ahove particulars, may sometimes be perfected by a prior (e) or subsequent letter or other writing, which suf- ficientl}^ is referred to or refers to it, and supplies the defect (fZ). But where the plaintiff in a suit for specific performance put in two letters of the defendant, the * first showing all the terms of the proposed agree- [*93] ment for a lease but omitting the date at which the occupation was to commence, and the second referring to the first as applying to a term to begin from " Michaelmas next," but adding several terms to which the plaintiff did not assent, the court refused specific performance, although there was undisputed evidence that a complete verbal agreement had beeu made on the terms of the first letter, with the additional term of "jNIichaelmas next," and James, L. J., observed that the court " had gone quite far enough in enforcing specific performances upon the evidence of letters when one party is bound and the other not " (e). Generally speaking parol evidence is inadmissible to connect two writings which do not of themselves sufficiently refer to each other (/) ; but sometimes it may be admitted to negative the existence of any other writings on the subject, from which their relation to each other may be inferred (^). Sometimes when a defective writing cannot be perfected in this manner, it may be taken out of the operation of the Statute of Frauds by a sufficient part performance (li). The existence of a signed (6) Saxon v. Blake, 29 Beav. 438. Dobell v. Hutchinson, .3 A. & E. 355; (c) Baumann v. James, L. R., 3 Kennedy v. Lee, 8 Meriv. 441. Ch. App. 508; here the acceptance (e) Nesham v. Selby, 41 L. J., Ch. was "at rent and terms agreed 551; L. R., 7 Ch. 406. upon." '(./") Skelton v. Cole, 1 De Gex & J. (c?) Warner v. Willington, 3 Drew. 587; Clinan v. Cooke, 1 Sch. & Lef. 22. 523; 25 L. J., Ch. GG2 ; Ridgway v. (g) Baumann v. James, L. R., 3 Wharton, 6 H. L. Cas. 238; 3 De Ch. Ap. 508 ; 16 W. R. 877. Gex, M. & G. 677 ; 27 L. J., Ch. 46; (A) Post, Sect. 4 (a), p. 100. ^ As it will be against one bidding for another at an auction, and not dis- closing that fact. M'Comb v. Wriglit, 4 Johns. Ch. (N. Y.) 659. 151 *94 AGREEHrENT FOR LEASE. [Ch. IV. S. 1. but incomplete agreement is no obstacle in the way of prov- ing tlie additional terms by parol where there has been a part performance ; for the whole might have been proved by parol (.'■). Effect of subsequent alterations by parol. — On the other hand, where there is a sufficient writing to satisfy the statute, but some of the terms of it are altered afterwards hi/ parol, a specific performance of the agreement as altered will not be decreed (A^).^ The reason is, that contracts within the 4th section of the Statute of Frauds must be wholly proved by writing (Z). To allow such a contract to be proved partly by writing and partly by oral testimony, would let in all the mischiefs which it was the object of the statute to ex- clude (??z). But if the new terms were merely intended to modify the original agreement, and were inoperative for that purpose, it seems that a specific performance of the original agreement may be decreed (w). Where a plaintiff alleges a written agreement, with the parol variation in favour of the defendant, and offers to perform the agreement [*94] with * the variation, the court will enforce specific performance, although the defendant insists on the statute (o). In such case the court will decree specific per- formance with the variations, if the defendant elect to take advantage of them ; or otherwise of the original agree- ment (p). It is to be observed, that the Statute of Frauds (0 Sutherland v. Briggs, 1 Hare, 61; Stowell v. Robinson, 3 Bing. N. 26, 35 ; Powell v. Lovegrove, 8 De C. 928. Gex, M. & G. 3.')? ; Morphett v. Jones, (w) Stead v. Dawbcr, 10 A. & E. 67 1 Swans. 172'; Fry, s. 420; see, too, (n) Price v. Dyer, 17 Ves. 366 Stewart v. Eddowes, L. R., 9 C. P. O'Connor v. Spaiglit, 1 Sch. & Lef 311, where parol evidence was held 305; Stead ;;. Dawbcr, 10 A. & E. 67 ; admissible to show that certain inter- Marshall v. Lynn, (5 M. & W. 109 lineations had been assented to. Moore v. Campbell, 10 Exch. 323; (k) .Jordan v. Sawking, 1 Ves. jun. Noble v. Ward, L. R., 1 Ex. 117; 36 402 ; 3 Bro. C. C. 388 ; Price v. Salus- L. .J., Ex. 81 ; but see Clarke v. Moore, bury, .32 Heav. 446 ; 32 L. .1., Ch. 441 ; 1 .Jon. & Eat. 723-729; Fry, ss. 686, affirmed Dom. Proc, 14 L. T. 110. 690. (/) Foquet V. Moor, 7 Exch. 1870; (o) Martin v. Pycroft, 2 De Gex, M. Goss r. Ivord Nugent, 6 B. & Adol. & G. 785; Dart V. & P. 603, (;()6. 58; Ilarvey v. Grabham, 6 A. & E. (/)) Robinson i;. Page, 3 Russ. 114; Dart V. & P. 728. 1 Brooks I'. Wheelock, 11 Pick. (Mass.) 439. 152 Ch. IV. S. 3.] REMEDIES FOR BREACH OF AGREEMENT. *94 does not say in distinct terms that all contracts or agree- ments concerning the sale of lands shall be in writing ; all that it enacts is, that no action shall be brought unless they are in writing ; and as there is no clause in the act which requires the dissolution of such contracts to be in writing, it should seem that a written contract concerning the sale of lands may still be waived and abandoned by a new agree- ment not in writing, and so as to prevent either party from recovering on the contract which was in writing (fi). Sect. 2. — Tlce Stamping of the Agreement for a Lease. It is material to observe that the Stamp Act, 1870, which is a consolidating act, imposes the same stamp upon an agreement for a lease as it imposes upon a lease itself (ex- cept in the case where the term exceeds 35 years), and imposes upon a lease made in conformity with an agreement duly stamped, the duty of sixpence only (r). It seems that a written proposal accepted orally need not be stamped as an agreement (s). But it is otherwise with respect to a document signed by one party only, but intended either as a contract, or as evidence of a contract, and not as a mere proposal (t). When an oral proposal is accepted in writing, such acceptance must be stamped as an agree- ment (u). Sect. 3. — Remedies for Breach of Agreement. Lease or agreement. — Questions frequently arose before the passing of the act 8 & 9 Vict. c. 124, whether a particu- (f/) Goss V. Lord Nugent, 5 B. & v. Brine, 1 M. & G. 359 ; Vollans v. Adol. 64; but see Carrington v. Fletcher, 1 Exch. 20; Hudspeth v. Roots, 2 M. & W. 248; Reade v. Yarnold, 9 C. B. 625; Smith v. Neale, Lamb, 6 Exch. 130; 2 L., M. & P. 2 C. B., N. S. 79; Laing v. Smith, 3 67. F. & F. 97. (r) 33 & 34 Vict. c. 97, s. 96. See (0 Chanter v. Dickinson, 5 M. & post. Appendix A., Sect. 7. The for- G. 253; 2 Dowl., N. S. 838; Hegarty nier law, 23 Vict. c. 15, excepted v. Milne, 14 C. B. 627. leases for not more than seven years (m) Atherstone v. Bostock, 2 M. & from a similar provision. G. 511; Chanter v. Dickinson, supra; (s) Drant v. Brown, 3 B. & C. 665; Hegarty v. Milne, supra. Edgar v. Blick, 1 Stark. 464 ; Vaughan 153 *95 AGREEMENT FOE LEASE. [Ch. IV. S. 3. lar instrument is to be construed as an actual lease or as an agreement for a lease. A few of the numerous cases [*95] *upon the subject will be noticed presently (a.-). The general result of them may be taken to be that the intention of the parties, as expressed in the instrument, is to be looked to,^ and that where a document cannot by law (x) Chap, v., Sect. 4, post. And see them discussed in Davidson on Conveyancing, vol. v., pt. 1, pp. 1-16. ^ Distinction between leases and agreements for leases. — "Where the words used " imply an immediate demise," and " there is no stipulation for a further lease," and "the term, the rent, and the manner of occupying . . . are all explicitly stated, the instrument constitutes a lease." Spencer, J., in Thornton v. Payne, 5 Johns. (N. Y.) 74, 77. Tliough tlie term cona- mence in futuro, yet the demise may operate in presenti. Same v. Same; Bacon r. Bowdoin, 22 Pick. (Mass.) 401. The words "hath set and to farm let unto . . . during the term of the natural life," &c., create a present demise, even though the instrument contains covenant for further lease. Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336. Tlie words "agree to lease" create a present demise, where, upon the whole instrument, tliis appears to have been the intention of the parties. HoUey v. Young, 66 Me. 520. An agreement for a lease will he construed to be a lease if possession is taken, and no future formal lease is contemplated. Jenkins v. Eldredge, 3 Story, 325. Even tiiough the instrument contemplates a future more formal lease, j'et if it show an intention to create a present tenancy, it operates as a present demise. Buckley v. Kusscll, 24 N. B. 205. An instrument commencing " We, the undersigned, agree to rent or lease," &c., constitutes itself a lease (wliether possession be taken under it or not) if it contain all the terms of a demise, " and tiiere is notliiiig to show that any more formal document was contemplated." Kabley v. Worcester Gas Liglit Co., 102 Mass. 392, 394. The words inserted in lease for term, " We furtlier agree to lease to said Young said premises ... at the price and conditions named as long as he wishes to occupy tlie same," creates a demise of future term at option of lessee; and by remaining in possession after expiration of present demise, he does not become a mere tenant at sufferance. Ilolley v. Young, G(j Me. 520. But instruments containing words of present demise accomi)anied with qualif^'ing words showing a contrary intention, do not oi)erate as present demises, as, for example, if they contain an agreement for taking a lease after certain improvements have been made. Jackson i-. Delacroix, 2 Wend. (N. Y.) 433. Agreements for leases have been held to constitute leases in the following, among other cases, viz. : Ilallett v. Wylie, 3 Jolms. (N. Y.) 47, and Jenkins V. lOldredge, 3 Story, .325, 330 (words of present demise with possession) ; Tliornton v. Payne, 5 Johns. (N. Y.) 74 (words of present demise without possession; lield that lessee could maintain suit for possession); Bacon i'. Bowdoin, 22 I'ick. (Mass.) 401, and Weed v. Crocker, 13 Gray (Mass.) 2iy (words implying a present demise of a term to commence in futuro) ; Jack- son j;. Kisselbrack, 10 Johns, (N. Y.) 336, and Buckley v. Russell, 24 N. B. 154 Cii. IV. S. 3.] REMEDIES FOR BREACH OF AGREEMENT. *95 operate as a lease, the leaning of the courts is to construe it, if possible, as an agreement (?/). Two remedies. — There are two remedies for breach of a valid contract or agreement for a lease, either of which, but not both, may generally be adopted by the intended landlord, or by the intended tenant, as the case may require, viz. : — 1. An action to recover damages for the breach (z). 2. An action to compel a specific performance of the agreement. An intended tenant may, in an action for damages, recover (y) Tidey v. MoUett, 16 C. B., N. 992 ; Kintrea r. Perston, 1 H. & N. S. 298. 357 ; 25 L. J., Ex. 287 ; Cocking v. (_z) By Landlord, &c. — Bond v. Ward, 1 C. B. 858; BuUen & L. PI. Rosling, 1 B. & S. 371; 30 L. J., Q. 245-253 (3d ed.). By Tenant, &c. B. 227 ; Foster v. Rowland, 7 H. & N. — Rollason v. Leon, 7 H. & N. 73 ; 31 103; 30 L. J., Ex. 396; Collins v. L. J., Ex. 96; Hay ward v. Parke, 16 Willmott, 13 W. R. 204 ; De Medina C. B. 295 ; Jinks v. Edwards, 11 Exch. V. Norman, 9 M. & W. 820 ; 2 D. & L. 775 ; Hail v. Betty, 4 M. & G. 410. 239 ; Souter v. Drake, 5 B. & Adol. 205, 209 (words constituted present demise, though the instruments contained covenants for future leases). In the following cases agreements for leases have been held not to con- stitute leases, viz. : People v. Gillis, 24 Wend. (N. Y.) 201 (because there were no words of present demise) ; Jackson v. Delacroix, 2 Id. 433 (because the words of present demise were qualified by other words, showing that a present demise was not intended) ; Weld v. Traip, 14 Gray, 330 (because the words implied the making of a future lease) ; McGrath v. Boston, 103 Mass. 369 (because notwithstanding present possession was given, the contract showed that a future lease was intended). If the intended lessee in fact enters upon the premises, that of itself is strong presumptive evidence that the parties intended a present demise. Halk'tt V. Wylie, 3 Johns. (N. Y.) 44, 47, 48. Ordinarily, possession taken and payment of rent under an agreement for a lease creates a tenancy for the stated term. Cheney v. Newberry, 07 Cal. 125 ; 1 Washburn on Real Prop., pp. 397, 398. If a party construct a building upon the land of another under an agree- ment that he is to occu])y it until the rent at a stated price shall equal the cost of the building, such an agreement creates a tenancy commencing immediately upon tiie completion of the building. Billings v. Canney, 57 Mich. 425. An agreement for a lease upon conditions precedent becomes a lease in equity after the performance of those conditions. Simmons v. Campbell, 17 Ch. (Ont.) 012, 617. The law recognizes an agreement to make an agreement for a lease as a valid contract ; and though the court itself cannot directly enforce it, j-et it will give damages against a party refusing to perform it. Foster v. Wheeler, 36 Ch. D. 695, 697, Kekewich, J., saying, "This defence rests, I think, upon a confusion, not by any means imcommon, between enforcing a contract and ordering a contract to be specifically enforced." 155 *96 AGREEMENT FOE, LEASE. [Ch. IV. S. 3. back any premium paid by him (a). Even where the agree- ment is verbal, money expended by an intending tenant in pursuance of it, ex. gr., money laid out upon alteration of the premises agreed to be demised, is recoverable as upon a failure of consideration (5). Breach by lease to another party ; Ford v. Tiley. — If the intending landlord disables himself from granting the lease agreed upon by making an actual and inconsistent lease to another party before the day arrives for the granting of the lease agreed upon, he may be sued at once by the intending tenant for a breach of contract in making the actual lease (c). Insufficiency of title. — At common law the intending lessor, by agreeing to grant a lease, impliedly contracted that he had title to grant the lease, and if he had not, he was liable to an action at the suit of the intended lessee (r?), although the intended lessee, by a contract for sale of the agreement, was bound by no implied condition that the intended lessor had title (t;). Intended lessee may not call for title ; V. & P. Act, 1874. — By the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78), s. 2, it is enacted that " under a contract to grant or assign a term of 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 to the freehold, &c.;" and by the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), "on a contract to grant a lease for a term of years, to be derived out of a leasehold interest, Avith a leasehold rever- sion, the intended lessee shall not have the right to [*96] call for the title *to the leasehold reversion." These enactments do away with the common law rule, the first applying to the case where the intended landlord is a (n) Wright v. Colls, 8 C. B. 150; soe, too, Frost ?•. Knifrht, L. R., 7 Ex. 19 L. J., C. P. 60. 111. (/)) Pulbrook V. Lawcs, L. R., 1 Q. (d) Stranks r. St. John, L. R., 2 C. B. n. 284 ; 45 L. J., Q. B. 17; 34 L. P. 370 ; 30 L. J., C. P. 118; 10 L. T. T. 05; see also WorthiriKton v. War- 283; 15 W. R. 078. rinpton, 8 C. B. 134; Rohinson v. («) Kintrea v. Perston, 1 II. & N. Harman, 1 Ex. 850. 357 ; 25 L. J., Ex. 287. (c) Ford V. Tilcy, B. & C. 325; 156 Cii. IV. S. 4.] ACTION FOR SPECIFIC PEEFOIIMANCE. *96 freeholder, and the second to the case where he is a lease- hohler. Defences to action. — It is a good defence to an action for breach of an agreement to let premises that the intending tenant intended to use them for a purpose forbidden by law, ex. gr., for the delivery of lectures in contravention of the Blasphemy Act (/). In what court action. — The action for damages may be brought in any division of the High Court, but if it be tried before a judge with a jury, the trial will be had before a judge of the Queen's Bench Division ((/). If the plaintiff claim 501. or less as damages, the action may be brought in the County Court (7i). Sect. 4. — The Action f 07- Specific Performance.^ In what court action for specific performance. — Actions for the specific performance of contracts for leases are by sect. 34 of the Judicature Act, 1873, assigned to the Chancery Division of the High Court. If a defendant claim specific performance by way of counter-claim in an action brought in a division other than the Chancery Division, the action will probably be transferred to that division (z). If the value of the property agreed to be demised do not exceed 500?., the action for specific performance may be brought in the County Court (^). (/) Cowan V. Milbourn, L. R., 2 (?) R. S. C, Order LI. And see Ex." 230; oG L. J., Ex. 124. Id. App. C, Forms of Pleading, No. (gr) Judicature Act, 1873, ss. 29, 37; 24 ; Hillman v. Mayliew, L. R., 1 Ex. Warner u. Murdock, L. R., 4 Ch. D. D. 132 ; 45 L. J., Ex. 334 ; 34 L. T. (C. A.) 750. 256 ; 24 W. R. 435. (h) Clarke v. Fuller, 16 C. B., N. S. (k) County Court Act of 18G5 (28 24. & 29 Vict. c. 99) ; County Court Act 1 Specific performance ; how obtained. — In some of the American states specific performance can only be obtained through a bill in equity, or by an equitable action. In others, parties entitled thereto may set up that fact as a defence in ejectment, and obtain a decree against the plaintiff in the same suit. Arguello v. Edinger, 10 Cal. 150, 160. In cases where equitable defences may be made in suits at law, a covenant upon which one is entitled to a decree for specific performance maj' be set up as a defence in trespass. M'Ginness r. Kennedy, 29 Q. B. (Ont.) 93, 97. 157 *97 AGREEMENT FOR LEASE. [Ch. IV. S. 4. Combination of damages with specific performance ; 21 & 22 Vict. c. 27, s. 2. — Damages may be awarded either in addition to or in substitution for specific performance. For by the Judicature Act, s. 24, sub-s. 7, the High Court has power to grant, and "shall grant," either absolutely or on conditions, " all such remedies whatsoever as any of the parties " to a cause may appear to be entitled to in respect of any and every legal or equitable claim properly brought forward." Prior to this act, it had been enacted by 21 & 22 Vict. c. 27, s. 2 (Lord Cairns' Act), that " in all cases in which the Court of Chancery had jurisdiction to entertain an applica- tion for an injunction against a breach of an}^ covenant, con- tract or agreement, or against the commission or continuance of any wrongful act or for the specific performance [*97] of any * covenant, contract or agreement, it should be lawful for the same court, if it should think fit (Z), to award damages to the party injured, either in addition to, or in substitution for, such injunction or specific performance (w). Under this act it was held that a court of equity could give damages only where it could decree specific performance or grant an injunction (w), and that when the plaintiff failed to establish any covenant, contract or agreement, of which specific performance could be directed, the court had no jurisdiction to grant relief in damages (o),^ of 1867 (30 & 31 Vict. c. 142), ss. 9, ccdure Act, 1883, 40 & 47 Vict. c. 49, 33. Tlic latter act expressly includes but the jurisdiction thereunder is still an agreement for a lease, wliich had in force either by virtue of the Judi- been held in Wilcox v. Marshall, L. cature Act or s. 5 of the act itself. II., 3 Eq. 270, to be impliedly included Per Bagallay, L. J., in Sayers v. Coll- by the former act amongst the nuit- yer, 54 L. J., Ch. 1. ters in which an equitable jurisdiction («) Ferguson v. Wilson, L. R., 2 was given to county courts. Ch. Ap. 77 ; 15 W. R. 80. (/) See Durell v. Pritchard, L. R., (o) Lewers v. Earl of Shaftesbury, 1 Ch. Ap. 244; 35 L. J., Ch. 223. L. R., 2 Eq. 270; but see Howe v. (m) This Act is repealed hy the Hunt, 31 Beav. 420 ; 32 L. J., Ch. 36. Statute Law Revision and Civil I'ro- ' With compensation. — As, for example, wliere one covenants to con- vey with release of dower, but cannot procure such release, the court w-ill decree specific performance with compensation or alternative full jjerform- ance. Davis r. I'arker, 11 Allen (Mass.) 94. ^ Incomplete remedies. — In one case wliere the court luhl the contract too indefinite to grant s{)ecifi<; performance, but yet the lessor was in fault, it enjoined the lessor from taking possession. Hopkins v. Gilman, 22 Wis. 168 Cn. IV. S. 4.] ACTION FOR SPECIFIC TERFORMANCE. *97 but the terms of s. 24, sub-s. 7 of the Judicature Act appear to be more comprehensive ; and it is apprehended that in a simple case the. Queen's Bench Division would grant specific performance (p). Combination of damages -with specific performance. — Where A. agreed to grant a lease to B. (who was to enter at once and expend money on improvements), with a proviso that if he failed within three months to grant a valid lease he would repay to B. the amount of his outlay, and from and after sucli failure B. should be at libert}^ to quit, and the agreement should cease, except as to B.'s right to payment, and A . was unable to grant a lease for want of title : it was held, that B. had a lien on A.'s interest in the premises for his outlay and costs of suit((7). Where the defendant could not obtain his lessor's consent to an underlease, except upon payment of a reasonable and extra rent, specific performance was decreed, with damages to be assessed against him in the event of his not obtaining such consent (r). And where a tenant for life agreed to grant a lease for three lives, but had only power to grant one for his own life, he was decreed to perform his agreement specifically pro tanto, with com- pensation for the difference in value between the term as granted and the term as agreed (s). In one case, the court have decreed specific performance of an agreement to take a lease, but refused to order a specific performance of certain building stipulations, and instead thereof directed an inquiry as to the damages (f). But the rule seems to have been that the court would not, in addition to a decree for specific per- formance, award damages for the mere non-performance of (p) See Mostyn v. West Mostyn, G; Turner v. Marriott, L. E., 3 Eq. &c. Co., L. R., I'c. P. D. 145; Gatli- 744. ercole v. Smith, L. R., 7 Q. B. D. (r) Hilton v. Tipper, 18 L. T. G2G; 626. 16 W. R. 888. (q) Middleton v. Magnay, 2 H. & (.s) Leslie v. Cromelin, 2 Ir. Eq. R. M. 233; 12 W. R. 706; Hindlcy t;. 134. Emery, L. R., 1 Eq. 52 ; 35 L. J., Ch. (/) Kay i;. Johnson, 2 II. & M. 118. 476. And in a case where lessor covenanted to renew or pay for improve- ments and brought ejectment, the renewal covenant being indefinite, the court in that suit enforced tlie lessee's right to be paid for the improvements. Robinson v. Kettletas, 4 Edw. Ch. (N. Y.) 67, 69. 159 *98 AGKEEMENT FOR LEASE. [Ch. IV. S. 4. a contract, unless special damages were proved (u). Even before 21 & 22 Vict. c. 27, the court would in some cases award damages for want of a literal performance of [*98] one * term of a contract of which specific perform- ance was decreed (a;). Thus it would award com- pensation for the deterioration of the estate pending the contract ; and in so doing it in truth gave damages to the purchaser for the loss which he sustained by the contract not having been literally performed (^).^ Ground of decree. — Where a contract in writing respect- ing real property, in conformity with the Statute of Frauds, was entered into between competent parties, and was more- over in its nature and circumstances unobjectionable, it was as much of course for a court of equity to decree a specific performance as it was for a court of common law to give damages for the breach of such a contract (2). The original and sole foundation of the jurisdiction to decree the specific performance of contracts was simply this : that an award of damages at law would not give a party the compensation to which he is entitled, that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed (a).^ (li) Chinnock v. Marchioness of 153, in which the intending tenant Ely, 2 H. «& M. 221 ; o4 L. J., Ch. 399. recovered damages for loss of profits (.r) Aubin v. Holt, 2 K. & J. GO, on trade meant, to the knowledge of 70; Peacock v. Tenson, 11 Beav. 355; the intending landlord, to be carried Helling v. Lumley, 3 De Gex & J. on upon the premises. 493; Phelps v. Prothero, 7 De Gex, (z) Hall v. Warren, 9 Ves. 008. M. & G. 722. («) Id. 045; Harnett v. Yeilding, 1 (//) Phelps ?'. Prothero, stiprn. See Sch. & Lef. 553. also Jaques v. Millar, L. 11., Ch. D. 1 And, on the other hand, under exceptional circumstances, the court will decree specific performance in behalf of a party who has not literally per- formed the contra(!t himstdf. Colton v. Kookledgc, 19 Chy. (Unt.) 121; Hunt T. S])(Mici'r, 13 Id. 23"). - Specific performance not granted if damages adequate remedy. — A decree for specific performance will not be made in any case where dam- ages are an adequate remedy. Ashton v. Pryne, 19 Chy. (Ont.) 56. For examj)le: ordinarily an agreement to take a lease and execute improve- ments will not be enforced. Dickson v. Covert, 17 Chy. (Ont.) 321. Where, however, a lessee has taken possession and made changes, &c., as the i)artiea cannot be restored to their original condition, specific performance will be decreed, damages not being an adc(iuale remedy. Lawrence v. Saratoga Lake II. Co., 30 Hun (43 N. Y. Supreme Ct.) 407. IGO Cii. IV. S. 4.] ACTION FOR SPECIFIC TERFORMANCE. *98 Of tenancy from year to year, &c., refused. — Tlie jurisdic- tion of tlie court to grant specific performance is a purely discretionary one.^ It seems that no decree will be made for the specific performance of an agreement for a tenancy from year to year, the remedy in damages being deemed ^ May be granted on terms. — Willard v. Taylor, 8 Wall. 557 (it may enforce a purchase oj)ti()n in favor of lessee, and impose terms upon him if by subsequent changes it has become inequitable to carry out the contract as originally made. Thus, it may require purcliase nu)ney to be paid in coin, if legal tenders have depreciated largely) ; Curran v. Holyoke Water Tower Co., 11(5 Mass. !)0. "When granted; -wrhen refused. — The court will not grant specific per- formance if inequitable. McDonald v. Rose, 17 Chy. (Out.) 657, 059. It will not be granted if tlie act of renewing will be a nugatory act. Tobey v. Bristol, 3 Story, 800, 824. The court will not compel lessor to grant lease of a shop not belonging to him, Morris v. Kemp, 13 Uliy. (Ont.) 487 ; neitiier will it compel a railroad company to give an ultra vires lease. Carleton Branch Ry. Co. v. The Grand Southern Ry. Co., 21 N. B. 3.39, 367 (per Allen, C. J.). ' It will not require trustees who have contracted without knowledge of their co-trustees, to give a lease (trustees being joint tenants). ]\IcKelvey v. Rourke, 15 Chy. (Ont.) 380. The court will not compel a trustee to renew a lease after expiration of his trust. Bergengren v. Aldrich, 139 Mass. 259. In case of a lease made in P^ngland under a power to lease, the court will enforce a renewal covenant if, at the time renewal is asked for, the rent reserved is the best rent ; not otherwise, a renewal for any rent less than the best rent being ultra vires. Gas Light & Coke Co. v. Towse, 35 Ch. D. 519. Specific performance will not be decreed if it is optional with lessor to renew or pay for improvements, Hutchinson r. Boulton, 3 Chy. (Ont.) 391 ; nor if material changes have taken place in the premises contrary to the agreement, Dunn V. Howard, 1 Allen (N. B.) 015; as where the outgoing tenant had removed gas fittings, the use of which the incoming tenant was to have. Though the court will not specifically enforce a contract in favor of a party who has forfeited his right (as by ejecting the vendee or lessee), yet if he bring a bill for specific performance or rescission against the infant heir of such vendee or lessee, the co\n-t will order a reference ; and if it appear to be a beneficial contract, will order it performed in behalf of the infant. Far- quharson v. Williamson, 1 Chy. (Ont.) 93. The court will not order specific performance of an agreement to convey a specific thing if that thing have been subsequently accidentally destroyed (per Gray, J., in Viterbo v. P'riedlander, 120 U. S. 707, 712). The court in decreeing specific performance will take note of the rights of third parties wiiich have intervened, and qualify its decree accordingly. Cur- ran V. Holyoke Water Power Co., 110 Mass. 90. An intended lessee will be required to coinplete his contract, notwithstand- ing the acts of third parties, as a municipal corporation, in building a bridge near the premises, have somewhat injured tlie value of the property. Den- nison v. Kennedy, 7 Chy. (Ont.) 342. 161 *99 AGREEMENT FOR LEASE, [Ch. IV. S. 4. sufficient (J) ; ^ nor where the agreed term has exj)ired or will expire before a decree can be obtained (c) ; nor where the lease is to be granted upon certain specified buildings being erected within a limited time, which has nearly elapsed, and the buildings have not been begun ((Z). Instrument void as lease, but good as agreement. — A writ- ing purporting to be a lease for more than three years, which is void at law as a lease because not by deed (e), may be good in equity as an agreement for a lease, and enforced by a decree for a specific performance, with costs (/). And although such contract is void at law as a lease, it may never- theless be valid, even at law, as an agreement for a lease, and also with respect to any express stipulations therein con- tained so as to support an action for breaches of such stipu- lations (//). And the law would probably be the [*99] same with respect to any * stipulations to be neces- sarily implied from the terms of the contract ; but no action can be maintained for not giving possession at the time appointed for the commencement of the term, because possession under a lease for a certain liumber of years (^ex- ceeding three years) was agreed for, and not a possession as tenant from year to year upon the terms of the intended lease so far as they are applicable to and not inconsistent with a yearly tenancy (A). "What Complainant should consider. — Refore commencing (6) Clayton i-. Illin^wortb, 10 Hare, (7) Bond v. Roslin^, 1 B. & S. 371 : 451; Mortal v. Lyons, 8 Ir. Ch. R. 30 L. J., Q. B. 227; Rollason v. Leon, 112; Fry, s. 7; Sug. V. & P. 209 7 11. &N. 73; 31 L. J., Ex. 00 ; Tidey (14th ed.). ,;. Mollett, 10 C. B., N. vS. 208; 33 L. (r) Nesbit I'. Meyer, 1 Swans. 226; J., C. P. 235; Ilayne v. Cumnuntrs, Walters u. Northern Coal Mininjj Co., 10 C. B., N. S. 421 ; Hunt v. Harris, 5 De Gox, M. & G. 020 ; 25 L. J., Ch. 10 C. B., N. S. 13 ; 34 L. J., C. P. 210. 033; De Bras.sac (;. Martyn,ll W. U. (/i) Drury r. Macnamara, 5 E. & 1020; Fry, 88. 603, 000; Dart V.& 1'. B. 012; Pitman r. Woodbury, 3 702. Exch. 4; Swatman v. Ambler, 80 ((/) Asylum for Fenialc Ondiansw. Exch. 72; 22 L. J., Ex. 81 ; Jinks r. Waterlow, 10 W. 11. 1102, M. li. Edwardn, 11 Exch. 775; Tress v. (c) J'ost, Chap. V. Sect. 2. Savage, E. & B. 30 ; Cole Ejec. 222, (/) Parker v. Taswell, 2 De Hex & 444. J. 557; 27 L. J., Ch. 812. ' The court will not decree specific performance of an agreement for a lease for a year. .Mara r. Fitzgerald, 10 Chy. (Out.) 52. 1G2 Ch. IV. S. 4.] ACTION FOR SPECIFIC PEIiFOltMANCE. *99 an action for tlie specific performance («') of an agreement to grant, or to take a lease, the complainant should consider : 1. AVhether the contract is so complete and unobjectionable in every respect, that a court of equity will enforce it by a decree for specific performance ; 2. Whether the proposed evidence is sufficient; 3. Whether any and what notice should be given, or demand made, or draft lease tendered or other act done (^) by the complainant before the commence- ment of the action; 4. Who should be plaintiff or plaintiffs, and who should be made defendant or defendants ; 5. On whom the costs of each party will probably fall ; 6. Whether any other and what remedy is preferable. An action for specific performance cannot be maintained after the plaintiff has recovered damages at law for non- performance of the contract {I). Time, whether essence of contract. — Time is not generally considered as of the essence of the contract (>»)•■' " A court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned b}^ the contract, either for completion, or for steps towards completion, if it can do justice between the parties, and if there is nothing in the express stipulations between the parties, the nature of the property or the surrounding of circumstances, which would make it inequitable to interfere (i) The law and practice in actions tcr v. De Trafford, 31 L. .1., Ch. 554 ; for specific performance not only Forrer v. Nash, 35 Beav. 167 ; 14 with respect to agreements for leases, W. R. 8. Sometimes the concurrence but generally, is ably stated in Fry on (in a lease) of a third person having Specific Performance (a.d. 1858) ; an equitable interest in the property also in Dart on Vendors and Pur- may be necessary ; Reeves v. Gill, 1 chasers. Chap. XVIII. (5th ed., a.d. Beav. .375. 1876), to each of which works fre- (/) Sainter v. Ferguson, 1 Mac. & quent reference will be made. There Gor. 286 ; Fry, s. 65; Dart V. & P. is also an excellent note on the sub- 703. jcct in 2 Tudor L. C. Eq. 441-461, (m) Sug. V. & P. 212, 213 (14th 2nd ed. (note to Seton r. Slade). See cd.) ; Dart V. & P. Chap. X.; Id. also 1 Scton on Decrees, 55)3-626 (3rd 701; Fry, s. 4 ; 2 Tudor L. C. Eq. ed.). 451 (2nd ed.) ; Davis r. Hone, 2 Sch. (k) Aubin r. Holt, 2 Kay & J. m, & Lef. 341, 347 ; Cartan v. Bury, 10 70; 25 L. .T., Cli. 36; Faulkner v. Ir. Ch. R. 387; Webb v. Hughes, L. Llewellyn, 31 L. J., Ch. 549 ; Lancas- R., 10 Eq. 281, Malins, V.-C. ^ See post, sec. 5, " Laches." 163 *100 AGREEMENT FOR LEASE. [Ch. IV. S. 4. ^vith and modify the legal right. This is what is meant, and all that is meant, where it is said, that in equity time is not the essence of the contract " (w).^ An underlease [*100] with * compensation will not be decreed where the defendant has contracted for a lease (o). (a) Oral Agreement ivith Part Performance.^ Oral agreement -writh part performance. — Although a mere oral agreement for a lease cannot be sued upon as such, an action for a specific performance can be maintained if the terms of such contract be distinctly proved or admitted, and there has been a sufficient part performance of the contract to take it out of the operation of the Statute of Frauds (^>).^ (n) Tillpy v. Thomas, L. E., 3 Ch. Tudor L. C. Eq. 455 (2iid ed.) ; Ap. 61, 67 ; Roberts r. Berry, 3 Be Blake v. Pliinn, 3 C. B. OK! ; Barnett Gex, M. & G. 284. v. Wheeler, 7 M. & W. 364. (o) Madeley v. Booth, 2 De G. & (p) Fry, ss. 383-407; Price ;•. Sal- Sm. 718; Darlington v. Hamilton, 1 usbury, Bart., 32 Beav. 446 ; 32 L. J., Kay, 557, 658; Warren v. Kiehard- Ch. 441 ; affirmed, Doni. Proe., 14 L. son, You. 1; Fry, ss. 803, 858; 2 T., N. S. 110. 1 Time, ■wrhen of the essence; -waiver. — Time is of the essence of tlie contract whenever the parties make it so. Benedict v. L^nch, 1 Johns. Ch. (N. Y.) 370, 374 (per Kent, Chan.). And if they do it either expressly or impliedly, specific performance will not be decreed after the time has expired. Crossficld v. Gould, 9 A. R. (Ont.) 218. Time, though made of the essence, may be waived, as for example, if vendee in possession pay, and vendor receive part of purchase money after the time limited lias expired, it is a waiver and justifies specific jierformance notwithstanding the delay. Potter v. Jacobs, 111 Mass. 32. •2 '< Qne of the most conspicuous exceptions whicli courts have ever made to tlie positive directions of a statute." 2 Reed on St. of Frauds, sec. 542. 3 The doctrine of part performance does not apply at law, being confined to equity. Jackson v. Pierce, 2 Joinis. (N. Y.) 221. Reed says the doctrine has been denied in Alabama, qualified in Kentucky, and is not recognized in North Carolina, Tennessee, and Mississijipi. 2 Reed on St. of Frauds, sees. 544-540. It was originally ) Oxford v. I'roband, L. Jl., 2 P. (), or by parol evidence, coupled with sufficient acts of part performance (^), there must, in each case, be a com- plete contract (r). Bscrow. — An escrow or writing, delivered subject to a condition which has not been performed, is not sufficient (s). (m) Sliillibeer v. Jarvis, 8 De Gox, (r) Dart V. & P. 657; Jackson v. M. & G. 79. Oglaiuler, 2 H. & M. 4G5; 13 W. R. (?i) Faulkner r. Llewellyn, 31 L. J., 03G; Lewers v. Earl Shaftesbury, L. Ch. 549; 11 W. R. 1055; 12 W. R. R., 2 Eq. 270 ; 16 L. T., N. S. 135; 193 ; and see Modlen v. Snowball, 29 Bankart v. Tennant, 39 L. J., Ch. Beav. 641 ; 31 L. J., Ch. 44 ; 4 De 809 ; 23 L. T. 137. Gex, F. & J. 143. (s) Wheate i-. Hall, 17 Ves. 80 ; (o) Fry, ss. 392-394 ; Thynne v. Pym v. Campbell, 6 E. & B. 370 ; Ld. Glengall, 2 H. L. Cas. 158. Gudgen v. Bessett, Id. 980 ; Miller- (p) Ante, 92. ship v. Brooks, 5 H. & N. 797; 27 L. (?) Ante, 100. J., Ex. 369. 169 *103 AGREEMENT FOR LEASE. [Ch. IV. S. 4. Unaccepted proposal. — A mere proposal to offer or take a lease does not, before acceptance thereof, constitute a com- plete contract.^ "What acceptance is sufficient. — The acceptance, to be op- erative, must be unequivocal, unconditional and without variance of any sort between it and the proposal (0, and communicated to the other party within a reasonable time (u). Revocation. — The proposal or offer may be revoked at any time before such acceptance (a;) ; but not afterwards (?/). Effect of acceptance. — Unless the proposal or offer be accepted without unreasonable delay a revocation thereof may be implied ; for, in the absence of any special stipula- tion to the contrary, it is always subject to an implied con- dition that it be accepted within a reasonable time, what time is reasonable being a question of fact (2). An unac- cepted offer does not bind the land, nor the trustees of the person making the offer, on his becoming a bankrupt (zz). (0 Frv, ss. 1G7-175; "Warner v. 9"(y; Rummens v. 'Rnbbins, 11 Jur., Willington, 3 Drew. 523 ; 25 L. J., N. S. 631 ; 13 W. II. 97!), L. JJ. Ch. (i(;2 ; (sending of draft lease held (.y) See Baines v. Woodfall, 6 C. not sufficient) ; Foster v. Rowland, 7 B., N. S. G57 ; Cowley v. Watts, 17 H. & N. 103 ; 30 L. J., Ex. 396. Jur. 72, M. R. (u) See Brogden v. Metropolitan (s) Williams v. "Williams, 17 Beav. R. Co., 2 App. Cas. 692. 213. (r) Warner v. Willinston, 3 Drew. (—) Meynell v. Surtees, 2 Sm. & 623; 25 L. J., Ch. 662; Jackson v. Giff. 101 ; IJur., N. S. 737. Oglander, 2 II. & M. 465 ; 13 W. R. ^Proposal and acceptance. — A lessor's written acceptance of lessee's projjosal to take a new leiise completes the contract, and may he enforced by the lessee. Ryder v. Robinson, 109 Mass. 67. Of course such contract (not bein},^ sijined by the lessee) could not, under the Statute of Frauds, be enforced against him unless partly fulfilled. An offer to make any contract is not bind- ing unless accepted according to the terms of the proposal. Eliason v. llen- bliaw, 4 Wheat. 225. It may, however (subject, of course, to the statute), be impliedly accepted, as by taking the benefit of the proposal. Mactier v. Frith, Wend. (N. Y.) 103. If the offer is made upon conditions, fulfilment of the conditions by tlie promisee fi.xes the liability of the promisor. Cutting v. Dana, 25 N. .1. Eq. 265. An offer may be accepted by letter, and will be binding immediately ui)on transmission. Brisban v. Boyd, 4 Paige (N. Y.) 17; Iloughwout v. Boisaubin, 18 N. J. Kq. 315, 322. It has been held that it is binding immediately the letter of acceptance is deposited in the post-office, thougli in fact never received. "Vassar v. Camp, 11 N. V. 111. • 170 Cii. IV. S. 4.] ACTION FOR SPECIFIC PERFORMANCE. *104 So long as a proposal or offer is an existing one, i.e. until it has been accepted or revoked, expressly or by implication, the other party may, b}- accepting it purely and simply, without any addition or other alteration whatever, make it an agreement (a) ; nor is an acceptance by ivriting neces- sary (6), unless, indeed, by the terms of the j)roposal, an agreement or contract in writing is to be made (oe ante, Ch. 1, sec. 12, notes, and Ch. 2, sec. 9, notes.) A corporation may accept a lease (of course one not ultra vires), either expressly or impliedly, in the same way that the indi- vidual may, unless restrained hy its ciiarter. The use of a seal hy a corpora- tion in making a contract is uniu'cessary except wliere the nature of the contract requires it. Ordinarily, directors have authority to accept a lease necessary for corpora- tion purposes. It may, however, he provided otherwise. 172 Cii. IV. S. 4.] ACTION FOK SPECIFIC PERFORMANCE. *105 (c) Agreement subject to preparation of formal coyitract. There is, of course, no binding agreement wlien the wi-iting appears only to he terms agreed on as a basis for an agreement, and not the * agreement itself (r) ; or [*105] where it provides that any of the terms are to be afterwards settled (s) ; or where it is expressed to he " sub- ject to the preparation and approval of a formal con- tract " (i^) ; or subject to a contract to be settled between the plaintiff's solicitors and the defendant (?;) ; or snbject to the terms of the draft lease being " reasonable in the estima- tion " of the defenda]it (i) ; or where there appears any design of further negotiation (^). The court Avill refuse to act where it only rests reasonably doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less (2). But the mere fact that the parties have expressly stipulated that there shall after- wards be a formal agreement prepared does not by itself show that they continue merely in negotiation (a). There- fore correspondence about the taking- of a house was held to constitute a sufficient agreement, thoupfh the accent of the lessor accepted the offer thus: — "These terms I have sub- mitted to Mrs. S., and I am authorized to say they are accepted, and that her solicitor will draw up a proper agreement for signature, which I will forward to you " (^), and an acceptance by a party merely expressed to be subject to the approval of his solicitor will it seems bind him (c). The question in cases of this sort is, whether the writing was (r) Frost v. Moulton, 21 Bcav. 496. (//) Tawney v. Crowther, 3 Bro. C. (s) Wood y. ]Mi(lglcy, T) De Gex, M. C. 318; Stratford v. Bosworth, 2 V. & G. 41 ; Honeyman v. Marryatt, 21 & B. 341. Beav. 14; 26 L. J., Ch. G19; 6 H. L. (;) Huddlcstone v. Briscoe, 11 Yes. Cas. 112. 592 ; Jackson r. Oglander, 2 H. & M. (0 Winn V. Bull, L. R., 7 CIi. D. 465; 13 W. R. 936; Fry, s. 343. 29; 47 L. J., Ch. 139; 26 W. R. 230; (n) Rossitor v. Miller, L. R. 3 App. Bonnevvell A Jenkins, L. R., 8 Ch. D. Cas. at p.- 1151. 70. (h) Skinner v. M-Dowall. 2 De Gex (u) Harvey v. Barnard's Inn, 45 L. & S. 2()5. T. 280, per Fry, J. (r) Fadie i: Atkinson, 49 L. J., Ch. (r) Wilcox V. Redhead, 49 L. J. 80 ; and see Hussey r. Horn-P.iyne, Ch. 539; 28 W. R. 795, per Hall, V.-C. L. R. 4 App. Cas. sil. 173 *106 AGREEMENT FOR LEASE. [Ch. IV. S. 5. intended to operate as a binding contract until a more formal one should be signed ((?), and there appears to be no distinc- tion in this respect between a contract for a sale and a con- tract for a lease. Sect. 5. — G-roimds for Refusal of Specific Performance. Agreement must be definite and unobjectionable. — The agree- ment must not onl}^ be complete as a contract (e), and proved by a writing or writings sufficient to satisfy the Stat- ute of Frauds (/), or by parol evidence, coupled with sufficient part performance to take it out of the statute ((/) ; but it must also be of so definite and specific a nature (Jt), and unob- jectionable in other respects, that the court will decree [*106] a performance of it. Therefore a court of * equity will not decree the specific performance of a con- tract for the purchase of a lease, where, from pending and threatened litigation, it is impossible to ascertain to whom the ground rent is payable, and the pui-cliaser may be involved in immediate .litigation (?).^ In Tildesley v. Clark- son (7c), the Court declined to compel the defendant to take a lease of a new house, which the plaintiff^ had contracted to " finish and deliver," on the ground that upon a competent survey the house had been found defective and finished in such a manner, that it was likely to subject the defendant, (r/) Ridgway v. Wliarton, II. L. (0 Pcsrlcr v. Wliitc, 33 Bcav. 403; Cas. 238 ; 27 L. J., Cli. 40. 33 L. J., Ch. 569. (e) Ante, p. 103. (A) Tildosluy v. Clarkson, 30 Beav. (/) Ante, p. 85. 419; 31 L. J.,'ch. 302, per Romilly, ((l) Ante, p. 100. M. R. (//) Bernard v. Mcara, 12 Ir. Ch. R. 389. 1 It will not be granted against party out of possession where possession can only be obtained by suit, because a contract for sucii possession savors of maintenance. Fry on Specific lVrforinan(!e, sec. 213. A covenant of a lessee with sub-lessee to renew sub-lease if principal lease is renewed to him, will be enforced in equity, notwithstanding lessee has given prior lease t« party who takes with knowledge of the tenancy. Cunningham /•. I'attee, 99 Mass. 248. An agreement for a mining lease will be enforced notwithstanding a dis- pute as to amoimt of royalties after the intended lessee has taken coal from the premises, and no option will be allowed liim to pay or surrender. Lewie V. James, 32 Ch. 1). 320. 174 Cii. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *10G under the covenant to repair, to an unusually large annual outlay to maintain it (Is:). Where an agreement for a lease of mineral property did not clearly define the mineral area to be comprised in the ' lease, the court refused, at the instance of the proposed lessee, to decree specific perform- ance of the agreement (V). The court will not decree spe- cific performance of a contract for a lease of premises, where one of the stipulations of the contract is, that the lessee shall engage the personal services of the lessors in the business to be carried on upon the premises (^/O- ^^^ ^^^ agreement for a lease " for seven, fourteen or years," was held to entitle the tenant to a lease for fourteen yeai's, determinable at the tenant's, and not the landlord's option, at the end of seven years, and that notwithstanding that the landlord had given his agent, who entered into the agreement, no authority to grant a lease with such option (?t). Inadequacy of consideration. — The discretion of the COUrt is exercised according to fixed and settled rules, and mere inadequacy of consideration, unless it be so gross as to amount to evidence of fraud, is not a ground for exercis- ing such discretion by refusing a specific performance (o).^ Thus, where the defendant agreed to purchase leasehold property at a valuation to be made b}' A. B., who made a very high and ap})arently exorbitant valuation, viz. at thirty years' purchase for a mere leasehold, but there did not appear to be any " fraud, mistake, or miscarriage," the court decreed a specific performance with costs (p). Misrepresentations and "deceit. — If the plaintiff induced the defendant to enter into a disadvantageous contract by misrepresentations and deceit, his action for specific per- (0 Lancaster v. De Trafford, 31 L. 85 ; 41 L. J., Ch. 7:14. The tenant J., Ch. 554; 8 Jur., N. S. 873; and had entered and spent money on the see Davis v. Sliepherd, L. R., 1 Ch. farm. 410. But see contra, Haywood v. (o) Haywood v. Cope, 25 Bcav. Cope, 25 Beav. 140. 141, 151 ; Callingham v. Callinsliam, (w) Ogden v. Fossick, .32 L. J., Cli. 8 Ci. & Fin. 374^ Fry, Chap. VII. 73. (/,) Collier v. Mason, 25 Beav. 200. (n) Powell V. Smith, L. R., 14 Eq. 1 Inadequacy of consideration, so gross as to lead to a reasonable conclu- sion of fraud or mistake, is suffieient to prevent specific performance. West- ern R. R. );. Babcock, t> Met. (Mass.) 340, 357, 358 {per Shaw, C. J.). 175 *107 AGREEMENT FOR LEASE. [Ch. IV. S. 5. formance will be dismissed with costs (^). But the [*107] mere existence * of circumstances at the date of the contract which might easily have led to fraud, and the want of any professional adviser on the part of the defendant, are insufficient to defeat the right to specific per- formance, if no fraud be shown (;-).^ Misrepresentation of matter of law. — A misrepresentation of matter of law will not disentitle the plaintiff. Therefore where A., who was under an agreement to take the lease of a house containing " all usual covenants," agreed to assign all his interest to B. and forwarded him a copy of the origi- nal agreement, and afterwards in answer to inquiries by B., stated that the lessee would not have to do substantial repairs : upon a bill filed by A. for a specific performance, it was held, that A.'s statement was a misrepresentation of matter of law, and that he Avould not be bound or prejudiced byitO). Concealment of material facj;s. — A specific performance will not be decreed at the instance of a person who has obtained an advantageous agreement for a renewed lease for lives, by knowingly concealing an important fact, viz., that the last life named in the lease was then in extremis, of which he well knew that the lessor was then ignorant (0- So where the plaintiff held part of the premises as lessee only, under oner- ous covenants, but concealed that fact and represented him- self to be owner in fee (?0- So where the vendor of lease- holds had received a notice of re-entry in default of the (7) Dart V. & r. G7;j ; Willin£;liam HSfi ; Dart V. & V. fiOG; sec also r. Joyce, 3 Ves. 168; Clermont r. .Toliiison i. Smart, 2 Giff. 151; Cook Tasburgh, 1 .lac. & W. 112 ; Cadman v. Waufili, III. 201. V. Horner, 18 Ves. 10; O'Herliliy v. (s) Kendall r. Hill, G .Tnr., N. S. Hedjres, 1 Sell. & Lef. 12.'5 ; Tildesley OGH; M. R.; Great Western K. Co. r. V. Clarkson, .W Reav. 410; ?A L. .T., Cnpps, 5 Hare, 01. Ch. :W!2; Moxey r. Rifiwood, 12 W. (0 EUard r. Ld. Llandaff, 1 Rail & K. Hll ; 10 .Iiir., N. S. .MC ; HifiRins R. 241 ; Pry, ss. 242, 4G1-4G4. V. Samels, 2 J. & H. 4G0 ; 7 L. T. (») Baseomb r. Rliillips, 20 L. J., 240. Ch. :580; G .Jiir., N. S. .'JG;j. (»•) Lightfoot r. Heron, :', V. & C. 1 Not only are fraud and misrepresentation siiflicicnt objections to specific performance, Walmsley v. Griffith, 10 A. R. (Ont.) ;'.27 ; but false and material representations, though bona Jiile, are also, Thomson v. Longard, 1 Eq. R. (\. s.; 181. 17G Ch. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *108 premises being repaired as therein mentioned, but concealed such notice from the purchaser, who, however, knew the state of the premises (a;). So where the vendor conceals from the purchaser that the property is liable to be taken under the powers of a recent railway act (ij'). So where, on an agreement for sale of the lease of a colliery for 8,000^. in paid-up shares, there was a private arrangement witli the plaintiff, not communicated to the shareholders, that 2,500Z. of these should be given as a bonus to the directors ; specific performance was refused (z). Public nuisance. — The existence of a public nuisance in the immediate neighbourhood of a house agreed to be taken as a residence, and rendering it unfit for that purpose, — its existence, however, being unknown to either part}^ although easily ascertainable by the lessor, — seems to afford no defence to his suit for a specific performance, although it will induce the court to try the case strictly (a). Illegal contract. — If the agreement is illegal the court will not decree a specific * performance (li). [*108] But the agreement must be legal or illegal, and it is not within the discretion of the court to refuse specific performance because an agreement savours of illegality; it must be shown to be illegal (: Thomas, L. R., 3 Ch. (7) Counter 1;. Macpherson, 5 Ap. 01 ; \() W. R. 1<)0. Moore, P. C. 83; Taylor v. Caldwell, (s) Cook v. Waugh, 2 Giff. 201 ; 3 B. & S. 820, where the plaintitT Jur., N. S. 50(1; comi)arc this case agreed to let a music hall for four with Tildesley r. Clarkson, 30 Beav. days, and, the music hall having been 419; 31 L. J., Ch. 302. burnt down between ajjreement and 180 Cii. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *111 tered into a contract to grant or to renew a lease, in excess of their power, and wliicli if performed would amount to a breach of trust, specific performance will not be decreed (//). In Sneesby v. Tliorne, one of two executors, erroneously be- lieving that he was acting with the authority of the other, contracted to sell a leasehold house, part of the testator's estate : it was held that the purchaser could not enforce a specific performance, and it seems doubtful whether he could have done so if the executor had been under no mis- apprehension (it). A feme covert, being one of several devisees for sale, cannot bind herself by a contract (x). A contract for a lease by a mortgagor cannot be enforced by him unless he procure a reconveyance of the mortgage, or procure the mortgagee to join in or confirm the lease (?/), but in such case the court may decree the damages sustained and cause them to be assessed (/). Where a mortgagee agreed with the plaintiff to grant him a lease, upon the mutual un- derstanding that the mortgagor should concur, but tlie mortga- gor refused concurrence, the court held, that the plaintiff was not entitled to insist on having a lease from the mortgagee alone : and, further, that he was not entitled to damages (a). Forfeiture. — The possibility of a forfeiture being in- curred if the intended lessor * perform his agreement [*111] is no defence to an action for specific performance (5). But where a lessee sold certain lots of building ground, and agreed to make a road, which it was afterwards found he could not do without incurring the risk of forfeiting a piece of leasehold land through which it was to pass, or of being sued by the lessor, the court granting the purchaser specific performance of the agreement for sale refused to enforce the stipulation, but gave him compensation as to that (c). (0 Byron i;. Acton, 1 Bro. P. C. 186; (s) IIowc v. Hunt, 31 Bear. 420; Hartnell v. Yielding, 2 Scii. & Lef . 549 ; 32 L. J., Ch. 30. Bellringer v. Blagrave, 1 De Gex & (a) Franklinski v. Ball, 33 Beav. S. 63; Haywood v. Cope, 25 Bear. 560; 34 L. J., Cli. 153. 153; Phillips r. Edwards, 33 Beav. (6) Helling r. Lunilcy, 3 De Gex & 440 ; Fry, s. 247 ; Dart V. & P. 640. J. 493. {ii) Sneesby v. Thome, 7 De Gex, (c) Peacock v. Pcnson, 11 Beav. M. & G. 399. 355; Helling v. Lumley, supra : Fry, (a:) Avery r. Griffin, L.R., 6 Eq. 606. s. 201. See also Wilmott r. Barber, ly) Costigan v. Hastier, 1 Sch. & L. R., 15 Ch. D. 96. Lef. 160. 181 *111 AGREEMENT FOE LEASE. [Ch. IV. S. 5. Where a tenant for life contracts to grant a lease for a longer period than he has power to grant, the coui't will decree him to grant such lease as he is able to make (c?), with compen- sation for the residue of the agreed terra (e). If a copy- holder were to agree to grant a lease for a longer term than the custom allowed, he would, it seems, be compelled to effectuate his contract in substance, by from time to time executing leases for such terms as he could, till he had made up the term contracted for (/). Impossibility. — The court never decrees performance of that which is impossible to be done (^). Fraud ; surprise ; mistake. — The contract must not only be legal, but it must not be hard or unreasonable (/*) ; it must be free from fraud and surprise («*) and from mistake (/c).^ In Jeffreys v. Fairs (/), the plaintiff agreed to grant the defendants a lease of a vein of coal, called the Shenkin vein, "about two feet thick, with the overlying and underlying beds of clay," at a certain dead rent and royalties ; it was held that this agreement could be enforced against the defendants, whether the Shenkin vein existed or not. But this was said to be " because the defendants had in fact got all they bargained for, which was the chance of finding the vein of coal under the particular property," so that it would have been " against reason, against justice, and against the (f/) As to lease by tenant for life, (/)) Tildesley v. Clarkson, 30 Beav. see Ch. I., Sect. 4, ante. 419; 31 L. J., Ch. 302. (e) Cleaton v. Govver, Finch, 104; (i) Fry, s. 475; Dart V. & P. 674; Dale V. Lister, cited Ki Ves. 7 ; Han- Walters u. Morgan, 3 De Gex, F. & J. bury r. Litchfield, 2 Myl. & K. 029; 718. Fry, 8. 299 ; Dart V. & P. 682, 083, (k) Fry, Chap. XIV. ; Dart V. & P. 685; Painter v. Newby, 11 Hare, 20; 005, 074; Wood r. Scartli, 2 Kay & 21 &. 22 Vict. c. 27, s. 2. J. 33; Brown v. Marquis of Sligo, 10 (/) Paxton I'. Newton, 2 Sm. & Ir. Cli. 1!. 1. Giff. 437 ; Fry, s. 609. (/) L. 11., 4 Cli. D. 448, per Bacon, (y) Green v. Sniitii, 1 Atk. 572. V.-C. ' Mistake. — Mistake made by vendor in his calculations, from miscarriage of exi)ectation8 which he had reason to believe were liable to miscarry, is not sufficient, Western K. R. v. Babcock, Met. 346, 357, 358 ; neither is a mis- take by him as to the quantity of his land, made by his own fault, Davis v. Parker, 14 Allen (Ma.ss.) 94. "He must show an honest nustake, not imputable to his own gross negli- gence," /jcr Shaw, C. J., in Western U. K. v. Babcock, sujim, p. 352. 182 Ch. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *112 whole chain of authorities, to let the defendants off their bargain." A mistake of law is not sufficient (w), nor a mis- take as to the legal consequences of an act (w). A substan- tial misdescription in the particulars of sale will entitle the purchaser to avoid the contract even at law (o) : but he must do so immediately (p). In equity such a contract will not be enforced * against him (5'). Where there has [*112] been a misrepresentation made by the vendor, the court applies the rule caveat emptor with great caution (r). If the written contn\ct omits any material term, or inaccurately expresses the real intentions of the parties, the court will not enforce, with a variation to correct the mistake, at the instance of the party in whose favour such correction would oj)erate (s). Thus, where a person has contracted for the assignment of a lease he will not be decreed to take the assignment of an underlease even with compensation (^). If he has contracted for an estate in possession, he will not be decreed to take a reversionary lease with compensation (i^). If he has contracted for a specific term, ex. gr. sixteen years, he will not be decreed to take a considerably less term, ex. gr. six years with compensation (.r). By an agreement in writing, A. agreed to demise to B. premises which were then in lease to C, and B. undertook to procure a surrender from C. of the existing lease and to accept a new lease. C. having afterwards refused to surrender, A. filed a bill (m) Fry, s. 508; Croombe v. y. Cooke, 1 Sch. &Lef. 22, 38; Manser Lediard, 2 Myl. & K. 251. v. Back, 6 Hare, 447; Squire i: Cam- (n) Great Western R. Co. v. pell, 1 M/1. & Cr. 480; Emmet v. Cripps, 5 Hare, 91. Dewhurst, 3 Myl. & Cr. 58"; Davies (o) Flight V. Booth, 1 Bi-ig. N. C v. Fitton, 2 Dru. & W. 225 ; Nurse v. 376; Wood v. Keep, 1 F. & F. 331. Lord Seymour, 13 Beav. 254. (p) Selway v. Fogg, 5 M. & W. 83. (t) Madeiey v. Bootli, 2 De Gex & ((/) Dimiuock v. Hallett, L. R., 2 S. 718; Darlington v. Hamilton, 1 Ch. Ap. 21 ; 30 L. J., Ch. 146. Kay, 550; Warren v. Richardson, ()•) Colby V. Gadsden, 15 W. K. You. 1; Fry, ss. 803, 858; Anon., 1185; 17 L. T. 97. Sug. V. & P. 300 (14th cd.) ; Dart V. (s) Fry, ss. 519-535 ; Dart V. & P. & P. 90, 089. 663,689; Rich v. Jackson, 2 Bro. C. («) Lineham v. Cotter, 7 Jr. Eq. C. 514; Ves. 334; Roberts v. Col- 176; Sug. V. & P. 304 (14th ed.) ; lins, 7 Ves. 130, 133 ; Woolam v. Dart V. & P. 689. Hearn, 7 Ves. 211; Winch v. Win- (x) Long v. Fletcher, 2 Eq. Cas. Chester, 1 V. & B. 375, 378; Higgin- Abr. 5; Dart V. & P. 690. son V. Clowes, 15 Ves. 510, 523; Clinan 183 *113 AGREEMENT FOR LEASE. [Ch. IV. S. 5. against B. for a specific performance, ivith a modification. It was held, upon demurrer, that the bill could not be sus- tained (?/). On the other hand, if the opposite party files the bill, the court will not decree a specific performance unless he submits to such alterations or compensation as the court thinks ought to be made upon a consideration of the parol evidence (2). Where a plaintiff alleges a written agree- ment with a parol variation in favour of the defendant, and offers to perform the agreement with the variation, the court will enforce specific performance, although the defendant insists on the statute (a). In one case, A. agreed to grant the lease of a public-house to B., " the lessor to make certain alterations suggested and to make and form a spirit-vault, and put in plate-glass windows, and to do everything therewith necessary at his own expense, and paint new the outside of all wood-work, as well as put the slates, chimney- pots and roofing in thorough repair." B., by his bill, of- fered to Avaive the performance of the agreement so [*113] * far as regarded any alterations not specially men- tioned therein. It was held, that he was entitled to a decree for specific performance, minus the waiver (5). Where the defendant relies on a parol variation of a written con- tract, as a defence, he must prove such part performance of the agreement as altered as would induce the court to enforce it as an oi'iginal independent agreement (r). "Where anything remains to be decided by third persons. — If the amount of premium or rent to be paid, or any other material point, is by the agreement left to be determined by third persons, ex. gr. arbitrators or surveyors, and that has not been done before suit, the court will not decree specific performance, having no power to compel such third persons (;y) Bcoston v. Stutley, 20 L. J., («) Martin v. Pycroft, 2 r>e Gex, Cli." 156, Wood, V.-C. M. & Cx. 785 ; Dart V. & I'. 06:5, 000. (?) Joyncs V. Statham, 3 Atk. 388; (/)) Middloton r. Greenwood, 2 De Barnard v. Gave, 20 Beav. 253 ; Clarke Gex, J. & S. 142. V. Moore, IJon. & Lat. 723; Browne (c) Legal v. Miller, 2 Vcs. 200; V. Marquis of SHro, 10 Ir. Ch. K. 1 ; Trice v. Dyer, 17 Ve.s. 350, 304; Londoti and Birininfjliam R. Co. v. Rol)inson v. Vt\>ic, :> Kiis.';. 121 ; Stig. Winter. Cr. & Pli. 57. 02 ; James v. V. & 1\ 105 (14tli ed.) ; Dart V. & P. Liclifield, L. K., Eq. 51 ; Fry, s.493; 069. Dart V. & V. 004, 009, 080. 184 Ch. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *114 to perform their duty : it therefore treats the contract as too imperfect to be specifically enforced (cZ). But after such matter has been so determined, the contract may be enforced by decree even where the sum fixed appears to be exorbitant, no fraud, mistake or miscarriage being proved (e). B. agreed to grant a lease to W. as soon as W. should have built a house with the necessary outbuildings on the land, of the value of Xl,400 at the least, "according to a plan to be submitted to and approved by B." W. agreed to build such house and take the lease ; no plan was submitted to or approved by B., but he was ready and willing to approve of any reasonable plan ; under such circumstances, a bill filed by B. for a specific performance, was dismissed, with costs (/). When contract conditional. — If a contract for a lease be made conditional on the lessor's ability to grant it, an action for specific performance cannot be supported without proof of the lessor's ability ; or that he has received part of the agreed premium, and interest on the balance, and so in effect estopped himself from relying on the condition (0. 504 ; Hill v. Barclay, 18 Ves. 03 ; (^) Carter v. Dean of Ely, 7 Sim. Nosbitt v. Meyer, 1 Swans. 223; 211. Lewis V. Bond, 18 Beav. 86; Gregory (/) Doloret v. Rotiischild, 1 Sim. r. Wilson, Hare, 083; Nunn v. & Stu. 590 Tnisentt, 3 De Gex & Sm, 304 ; Dart V. & r. 703 ; Fry, s. 042. ' Breach of covenants, effect of — See Fry on Spec. Perf. of Cont. sec. 040. 190 Ch. IV. S. 5.] REFUSAL OF SPECIFIC PERFORMANCE. *117 the * evidence tliereof is not clear and cogent, or [*117] if it appears doubtful whether such breaches have not been waived by the receipt of subsequent rent or other- wise, the court will decree a specific performance, and direct the lease to be ante-dated, with liberty for the landlord to proceed by ejectment, action of covenant, or otherwise, for such alleged breaches, the tenant undertaking to admit in any such action that the lease was executed on the day it bears date (o). In such case the tenant must insure imme- diately after the execution of the lease, if it contain a cove- nant to insure, &c. (p). Acts creating a nuisance to the landlord, for which a remedy may be had in damages, but which do not occasion a forfeiture, are no ground for refusing a specific performance (g). Proviso against assignment. — A proviso against assignment to be contained in the lease will prevent an assignment of (o) Fry, s. 646; Pain v. Coombs, 3 Browne v. Marquis of Sligo, 10 Ir. Ch. Sm. & Giff. 449 ; 1 De Gex & J. 34 ; R. 1 ; Blackett v. Bates, 2 H. & M. 3 Jur., N. S. 307, 847 ; Lilley ;;. Leigh, 270 ; 34 L. J., Ch. 515. 3 De Gex & J. 204; Rankin v. Lay, 2 {p) Doe d. Darlington v. Ulph, 13 De Gex, F. & J. 65 ; 29 L. J., Ch. 734; Q. B. 204. Rogers v. Tudor, G Jur., N. S. 692 ; (7) Gordon ;•. Smart, 1 Sim. & Stu. Poyntz V. Fortune, 27 Beav. 393; (jQ. An agreement for a lease does not constitute a lease in equity after the intended lessee being in possession has broken the intended covenants to repair and pay rent, they being accompanied with a re-entry clause. Swain v. Ayres, 21 Q. B. D. 289; Same v. Same, 20 Id. 585, 588 {per Charles, J.). " In the present case specific performance of the agreement to grant a lease would not be given against the landlord wlien the tenant liad broken his cove- nant to repair" {]>er Charles, J., supra, p. 588). 2 Renewal covenant may be enforced by continuing partner in name of firm if covenant providing for renewal by continuing partner. Floyd v. Storrs, 144 Mass. 56. An agreement for lease may be enforced against vendee of intended lessor where such vendee has taken premises with knowledge and promised vendor to carry out the lease. Simmons (•. Campbell, 17 Chy. (Ont.) 612, 617. Such an agreement for a lease is a lease in equity {per Mowat, V.-C, p. 617) ; and in such a case the vendee would be estopped to set up the Statute of Frauds as a defence. Hodges v. Howard, 5 R. I. 149, 150. (And see whole opinion of Ames, C. J., declining to rest the decision upon possession which was equivocal, but placing it upon the equity of the case.) 191 *118 AGREEMENT FOR LEASE. [Ch. IV. S. 6. the agreement itself (r). But the benefit of such proviso may be waived (s). Sect. 6. — Specific Performance hy or against particular Persons. Who may sue for specific performance. — The person to maintain an action for specific performance must be either, 1st, the lessor himself or his representatives in interest ; or, 2ndl3% the lessee himself or his representatives in interest. If, however, the contract be entered into by a tenant for life in due exercise of a power, specific performance will, it is conceived, be decreed at the suit of a remainderman (t), except where there is an undue exercise of the power (m). Where A. agreed to grant B. a lease, and before he had done so mortgaged the property to C. wdth notice, who in no way contested B.'s right to the lease: — Held, that C. was not a proper party to a suit for a specific performance (a:). Against executors of lessee. — Where a person who has agreed to take a lease dies, the executors admitting assets may be compelled to take a lease, the covenants being so qualified as that the executors shall be no further liable therein than they would have been on the covenants which ought to have been entered into by their testator («/). [*118] * Wiiere action necessary. — The court in one case refused to enforce performance of an agreement by a person out of possession to grant a present lease to a person who was at the time apprised that he could not obtain pos- session except by a suit (2). It seems, too, that a lessee will not be compelled to assign his lease (containing a covenant not to assign without licence) where the agreement to assign (r) Weathcrall v. Gcering, 12 Yes. (j-) Long v. Bowring, .33 Bcav. 585. 504. ('/) riiillips V. Evcrard, 5 Sim. 102; (s) Dowcll V. Dew, 1 You. & Coll. Stephens v. Ilotliam, 1 Iv. & J. 571 ; C. C. 345; Fry, s. 120. Page v. Broom, 3 Beav. 30; Fry, s. (i) Shannon v. Brailshotl, 1 Sch. & 121 ; Siig. V. & V. 209 (14tli cd.). Lcf. 52, G5; Lowe v. Swift, 2 Ball & (:) Bayly v. Tyrrell, 2 Ball & B. B. 529. 358 ; Fry, s. 132 ; but now see 8 & 9 (u) Ilickctts V. Bell, 1 De Ge.x & S. Vict. c. 106, s. ; ante, 3. 335. 192 Ch. IV. S. 6.] PARTIES IN SPECIFIC PERFORMANCE. *118 is made "subject to the landlord's approval," although the landlord unreasonably holds his licence, contrary to his cove- nant not to do so, contained in the lease (a). Infants, — An infant cannot sue or be sued for a specific performance (6). Married women. — A married woman may bind her separate estate, and by s. 1, sub-s. (2), of the Married Women's Prop- erty Act, 1882, is presumed to bind such estate, unless the contrary be shoM^h. She may also sue or be sued alone, by sub-s. (2) of the same section on a contract for a lease. Prior to that act she sued or was sued with her trustees (c). Lunatics. — A contract to gi'ant or take a lease may be enforced against a lunatic, if made during a lucid inter- val (r/). Felons. — The court has refused to execute an agreement t® grant a lease to a man who has committed felony (e) ; but the terms of the statute 33 & 34 Vict. c. 23, by which for- feiture for felony is abolished, seem to point to such an agreement being enforceable by and against the trustees of the felon's property. Insolvents. — The insolvency of the intended tenant is a valid ground for resisting the specific performance of an agreement for a lease (/). Bankrupts. — The bankruptcy of the intended tenant does not determine the contract for a lease ((/) : but it vests in his trustee in bankruptcy, who ma}^ disclaim it (A). If the trustee elect to take a lease, he must enter into such cove- (a) Lehmann v. M' Arthur, L. R., 3 (e) Willingham v. Joyce, 3 Yes. Ch. Ap. 496 ; 37 L. J., Ch. 625. 169. (b) Flight V. BoUand, 4 Russ. 298 ; (/) Buckland v. Hall, 8 Ves. 92 ; Hoggart r. Scott, 1 Russ. & Myl. 293; Neale v. Mackenzie, 1 Keen, 474; Dart V. &P. 670; but see Woods v. Price v. Assheton, 1 Y. & C. 441; Hyde, 31 L. J., Ch. 295. O'Herlihy v. Hedges, 1 Sch. & Lef. (c) Johnson v. Gallagher, 3 T>e 123 ; M'Nally v. Gradwcll, IG Ir. Ch. Gex, F. & J. 494, 519 ; 30 L. J., Ch. R. 512. 298; Picard v. Hine, L. R., 5 Ch. Ap. (r?) Buckland v. Papillon, L. R., 1 274. Eq. 477 ; ,35 L. J., Ch. 387 ; 36 Id. 81 ; (d) Fry, s. 161 ; 1 Ves. jun. 82 ; but L. R. 2 Ch. Ap. 67; and see Kell v. see Hall v. Warren, 9 Ves. 605. As Nokes, 14 W. R. 908 ; Mackley r. to contract for lease with committee Pettenden, 1 B. & S. 178; 30 L. J., of lunatic, see 16 & 17 Vict. c. 70 ; Q. B. 225. Re Wynne, L. R., 7 Ch. 229. (A) Post, Chap. VII., Sect. 7. 193 *119 AGREEMENT FOR LEASE. [Ch. IV. S. 7. nants as the bankrupt himself would have had to enter into (i) : or he may assign the agreement for a lease to a purchaser, who may enforce a specific performance, unless in- deed the agreement contains a proviso against alienation (^). If the trustee elect not to take a lease, the court will not enforce the agreement at the instance of the bank- [*119] rupt(Z). Where a person agreed to grant a * lease to A., his executors, administrators and assigns, upon certain conditions, and A. assigned his interest in the con- tract to B., and afterwards became bankrupt, it was held that B., on performing the conditions, had a right to enforce the agreement specifically (w). Corporations. — If there has been a part perfonnance of the contract for a lease by a corporation, the court will decree a specific performance of it, though the contract was not under the common seal of the corporation (w). It has been held, that the commissioners of woods and forests are neither entitled to sue nor liable to be sued for the specific performance of contracts entered into with or by them (o). . Sect. 7. — Form of Lease, and hoiv settled after a Decree. Form of lease — how settled. — Questions as to the validity of the contract, and as to whether it is inequitable to enforce its specific performance, must be determined at the hearing; questions of title are referred to chambers (^). The court, on pronouncing a decree for specific performance of an agree- ment to take a lease, will not usually enter into the question as to what covenants the lease shall contain. But it will do so where the nature of the decree to be made depends upon that question {^). In ordinary cases any such question (/) Powell V. Lloyd, 2 Y. & J. .372. (n) Steovon'.s TTosyiital v. "Dy.is, 15 Ik) Cro-sbie v. Tookc, 1 Myl. & K. Ir. CIi. 11. 405; Wilson v. West Hartle- 431; Morgan v. Kliodes, Li. 496; pool R. Co., 34 L. J., Ch. 241. Kuckland v. I'apillon, supra. (o) Nurse r. Ld. Seymour, 13 Beav. (/) Rrook V. Hewett, 3 Vcs. 255; 254. Woatlicrall i;. Geering, 12 Vcs. 504. (/») ITood r. Of,'Iander, 34 Heav. 513. (w) Morgan v. llhodes, 1 Myl. & (7) Hlakcsley /;. Whcildon. 1 Hare, K. 435. 170, 183 (where see form of minutes 194 Ch. IV. S. 7.] DECREE FOR A LEASE. *120 must, if necessary, be settled in chambers : and for that pur- pose one party must prepare the draft of a lease, and hand a copy to the other, that such alterations may ho made as may be deemed necessary : and when the parties cannot agree upon any point, it may be brought before the judge's chief clerk, who will settle the draft lease in such manner as he thinks fit (r). Either party may appeal to the judge, and apply to him to vary the terms of the draft lease as settled by the chief clerk : but at the peril of costs (s). Enforcement of decree. — If the defendant refuse or neglect to comply with the decree, the court may, on such terms and conditions (if any) as may be just, " order that the lease be executed by such person as the court may nominate for that purpose," and in such case the lease so executed "shall operate and be for all purposes available as if it had been executed by the person originally directed to exe- cute it" (0- "Usual covenants." — * The question what cove- [*120] nants the parties to an agreement for a lease are entitled to have inserted in the lease itself is of great impor- tance (it), but it seems clear, that whether the agreement for the lease stipulates for usual covenants or not, the law implies that usual covenants shall be inserted (2;). The giving such directions) ; Reeves v. (m) See the question carefully dis- GrecnwicJi Tanning Co., 2 H. & M. cussed, Dav. Prec. vol. 5, pt. 1. p. 51 54 ; Onions v. Cohen, 2 H. & M. 354 ; (ed. 3, a.d. 1870), wliere it is said that 34 L. J., Ch. 338 ; Beadel v. Pitt, 11 the result of the authorities is that the Jur., N. S. 152; 13 W. II. 287. only covenants which the lessor can (?•) Jenkins ??. Green, 27 Beav. 440; insist on as "usual covenants" are 28 L. J., Ch. 817, 820 ; Parisli v. Slee- covenants to pay rent and taxes, and man, 1 De Gex,F. & J. 320; 29 L. J., to repair and to allow the lessor to Ch. 53. enter and view the state of repair, (s) Parish v. Sleeman, supra ; with a proviso for re-entry on breach Sharp V. Milligan, 23 Beav. 419. of the covenant to pay rent; and that (<) Jud. Act, 1884, 47 & 48 Vict. c. the only covenant which the lesset 61, s. 14. See Hall v. Hall, 51 L. T. can insist on is the usual qualified 226, in which Kay appointed a person covenant for quiet enjoyment ; a pas- in place of a defaulting defendant to sage cited with a{)prov:il by Jessel, execute a lease, un«ler the~ somewhat M. R., in Hampshire v. Wickens, L. similar section 30 of the Trustee Act, R., 7 Ch. D. 555, and infra, p. 121. 1850, and Edwards, In re, 33 W. R. (r) Church v. Brown, 15 Ves. at 578, in which Pearson, J., appointed p. 265; Propert v. Parker, 3 My. & K. his chief clerk to execute a mortgage. 280. 195 *121 AGREEMENT FOE LEASE. [Ch. IV. S. 7. question what are usual covenants appears to be one of fact, not of law, in a case where the parties stipulate for usual covenants (j/), but to be a question of law where the con- tract for the lease is silent as to covenants (z). What are " usual " covenants depends, in some measure, on the practice of conveyancers, which vary from time to time, so that what was a usual covenant in Lord Eldon's time would not necessarily be held to be a usual covenant now ; and also depends upon the character of the property agreed to be demised, so that what would be a usual cove- nant in a contract for a mining, would not necessarily be held to be so in a contract for an agriculture lease. Rent. — The covenant to pay rent has been held to be a usual covenant in the construction of a lease under a power (a), and seems indeed to be in all cases a usual cove- nant. Repair. — The covenant to repair seems clearly usual (i), and it has been twice held on the construction of a contract for a lease (c), that the exception which has for some time been commonly inserted in leases, in case of destruction of the premises by fire, is not " usual." To pay taxes. — A covenant by the tenant to pay rates and taxes ought clearly to be inserted, if the contract for the lease stipulate for a iiet rent ((?) ; but this is not so much because the covenant Ls usual, as because the words " net rent " imply it ; and the better opinion seems to be — tliough there is no express decision to that effect — that amongst " usual covenants " must be reckoned a covenant by the tenant " to pay taxes, excej)t such as are usually payable by the landlord " (e). Not to assign or underlet. — The covenant not to [*121] assign or underlet, without the leave of the * lessor, (y) In Bennett v. Womack, 7 B. & C^) Kendall v. Hill, G .Tur., N. S. C. fiii?, and in Brookes v. Drysdalc, 908. L. H., 3 C. V. I). 52, post, it was as- (c) Id.; Sharp 1\ Milligan, 2;3 Bcav sumed to be a question of fact. 419. (2) Church V. Brown, ubi .luprti. (er Harris, J.). " The proposition that rent is not essential to the existence of a leasehold estate is entirely obvious " (per Cowan, J., in Failing v. Sclienck, supra, p. 347). In Fiske i'. Framiiigham Man. Co., 14 Pick. (Mass.) 491, there was no direct reservation of rent for the demised premises (a factory), but the lessor derived benefit from the contract of the lessee to manufacture goods for him at a stipulated price. Even this benefit, however, is not necessary to consti- tute a lease. * Exclusive possession essential. — Exclusive possession is essential to the character of a lease. Examples : the use of premises by permission of the owner and in com- mon with him does not constitute a tenancy, but simply a license. Central Mills V. Hart, 124 Mass. 123. Joint occupancy with the lessor as his servant is not sufficient to create a tenancy. West v. Atherton, 2 Allen (N. B.) 653. A contract for exclusive oc(;upation of rooms in an apartment house is suf ficent. Porter v. Merrill, 124 Mass. 5.">4, though it has been lield tliat a con- tract for board and lodging in a boarding-liouse is not. White v. Maynard, 111 Mass. 250; Wilson v. Martin, 1 Denio (N. Y.) 602. Leave or pcrmi.ssion to a circle of ladies eonnected with a religious society to use a hall in a church, but not to the exclusion of the society, does not 202 Ch. V. S. 1.] DEFINITION OF LEASE. *124 ments for some certain number of years or other deter- minate period (^d).^ An instrument is not a demise or lease, (d) Reg. V. Morrish, 32 L. J., M. C. 245. constitute a lease, but a mere revocable lioense. Hamblett v. Bennett, 6 Allen (Mass.) 140, 145. Where a father gives up possession and control of liis farm to his son, upon condition of supporting him, and continues to reside with him on the farm, the arrangement creates a tenancy. Ferguson );. Savoy, 4 Allen (N. B.) 263. A conveyance of an exclusive privilege to mine iron ore for a tei'm of years, paying royalties and with various covenants, was held to be a lease in Seymour v. Lynch, 7 Out. 471, affirmed by evenly divided court in 13 A. II. (Ont.) 525. In United States v. Gratiot, 14 Pet. 534, tlie United States Supreme Court held that a license for one year to smelt lead ore at United States lead mines, paying rent in percentage of lead and witii right of cultivating as much laud as miglit be required for the teams, was a lease for years. In Freeman v. Underwood, 06 Me. 229, an executory sale of blueberries, grass, and timber for ten years, with possession so far as necessary for the sake of securing them, was a lease. Freeman v. Underwood, 60 Me. 229. 1 Cultivation on shares ; does the cultivation of land on shares create a tenancy ? — This question has been little considered in England. It has given rise to much discussion in America. Generally it is held that the contract may or may not create a tenancy according to circumstances. The courts, however, differ widely in construction of the same circumstances. Hare v. Celey. The dicta in tlie famous case of Hare v. Celey, Cro. Eliz. 143, is sometimes followed in this country, sometimes limited, and frequently rejected. That was a case of a contract for the cultivation of land for a single season, under which the owner and cultivator were each to furnish half the seed, and were to share the crop. The court said that the relation of landlord and tenant did not exist, because the contract was for a single season, otlierwise if it had been for more than one. It was held that the owner had sole right of possession, and could alone maintain trespass, (jiiare clausuvi. The court said they were tenants in common of the crop, and might have joined for an injury to it. This case was meagrely rejjorted, and it is hard to tell exactly how far its doctrine extends. If it decides that a contract for the cultivation of land on shares for a single season, but under which the actual possession and sole control of the premises are delivered to the cultivator, does not create a tenancy; it is opposed to the weight of American authorities, as it is also upon tlie point of tenancy in common in the crop. How far followed. — The case has been followed, among other cases, by Bradish v. Schenck, 8 Johns. (N. Y.) 151, 152 (a contract for one year), and by Foote v. Colvin, 3 Id. 216, and DeMott v. Hagerman, 8 Cow. (N. Y.) 220. Cropping contracts. — The last-named case and possibly the next to the last were mere contracts to work upon the land of another, receiving pay in a share of the crop (sometimes called cropping contracts). All authorities admit that such contracts do not create tenancies, but that the entire posses- sion of the land and ownership of the crop is in the owner until division. McNeely v. Hart, 10 Jred. L. (N. C.) 03; Brazier v. Ansley, 11 Id. 12; Hare 203 *125 THE LEASE. [Ch. V. S- 1. [*125] although it * contains the usual words of demise, if its contents show that such was not the intention of V. Pearson, 4 Id. 76 (per Daniel, J.) ; State v. Jones, 2 Dev. &. Batt. (N. C.) 544; Harrison v. Kicks, 71 N. C. (per Rodman, J.)," Adams v. McKesson, 53 Pa. St. 81; Chase t'. McDonnell, 24111. 236; Kelley v. Weston, 20 Me. 232; Endicott, J., in Warner v. Abbey, 112 Mass. 355. Classification of contracts. — Contracts for the cultivation of land on shares may (under the conflicting decisions) be divided into four classes, viz. : — 1. Simple unqualified tenancies (lessee liaving exclusive possession of land and legal title to the entire crop until division). Stewart v. Doughty, 9 Johii* . (N. Y.) 108, and a host of cases cited later. 2. Qualified tenancies (the lessee having exclusive possession of the land, but the owner being a tenant in common of the crop). Walls v. Preston, 25 Cal. 59, 64, and other cases cited later. 3. Pure cropping contracts (under which owner has entire possession and ownership of crop until division. See cases cited supra). 4. Qualified cropping contracts or quasi tenancies (under which cropper has a qualified but not exclusive possession of the land, and is tenant in common with the owner of the crop). Hare v. Celey, supra; Delaney v. Root, 99 Mass. 546, 549; Foote v, Cohin, and Bradish v. Schenck, supra: Walker v. Fitts, 24 Pick. (Mass.) 191; Aiken v. Smith, 21 Vt. 172; Guest V. Opdyke, 31 N. J. L. 552; Harrower v. Heath, 19 Barb. (N. Y.) 331; DeMott V. Hagerman, 8 Cow. (K Y.) 220 ; Putnam v. Wise, 1 Hill (N. Y.) 234; Caswell v. Districh, 15 Wend. (N. Y.) 379; Bishop v. Doty, 1 Vt. 37; Smyth V. Tankersley, 20 Ala. 212. The question whether the letting was for one or more seasons is now little regarded. Concurrence of authority. — It may be regarded as settled in America, that the relation of landlord and tenant may be created by contracts to culti- vate land on shares. Such contracts will always create tenancies whenever the exclusive possession and control is given to the cultivator, the difficulty being that the courts in different jurisdictions find differently upon the same facts. Whether a tenancy is created or not, is a question of intention to be ascertained by construction of the contract. Caton, C. J., in Alwood v. Ruck- man, 21 111. 200; Rhodes, J., in Walls v. Preston, 25 Cal. 59, 64, 65; Rodman, J., in Harrison v. Ricks, 71 N. C. 7, 11; Bell, J., in JMoulton r. Robinson, 27 N. H. 550, 551; Johnson v. Hoffman, 53 Mo. 504; Hoar, J., in Delaney v. Root. 99 Mass. 546,549; Endicott, J., in Warner v. Abbey, 112 Mass. 355, 359, 360 ; AVoodruff, J., in Taylor v. Bradley, 39 N. Y. 129, 138, 139. Mixed question of law and fact. — When the contract is an oral one, the question is a mixed question of law and fact, to be determined by the jury under instructions from the court. Facts which constitute a simple tenancy in one state create qualified ones, or quasi tenancies, or mere crop- ping contract, in others. Qualified tenancies. — The following cases are cases of qualified tenan- cies, in which it was ht^ld that a tenancy exisled, but that the owner and cul- tivator were tenants in common of the crop. Walls v. Preston, 25 Cal. 59, 64,65; Sunol v. Molloy, 63 I<1. 369; Schell v. Simon, 66 Id. 2()1 ; Cooper r. McCrrew, 8 Or. 327, 330; Ferrall r. Kent, 4 Gill (Md.) 209; State v. Jewell, 34 N. J. L. 259; Johnson v. IIolTman, 53 Mo. 508; Kamerick v. Casllcman, 23 Mo. App. 481. In several cases the owner has been held entitled to an interest in the crop 204 Ch. V. S. 1.] DEFINITIOI^J OF LEASE. *125 by virtue of a special reservation in the contract, or to have obtained an interest by delivery or other expiration of the contract. Smith ?'. Atkins, 18 Vt. 461; Ksdon (■. Colburn, 28 Id. 031; Willniarth v. Pratt, 50 Id. 474; Heald V. Build. Ins. Co., Ill Mass. 38; Hart v. Baker, 29 Ind. 200; Lindley v. Kelley, 42 Id. 204. In some cases the courts have simply decided that the owner and cultivator were tenants in common of tlie crop, without deciding whetlier tiiey were landlord and tenant. Schmitt v. Cassilius, 31 Minn. 7 ; Fiquet u. Allison, 12 Mich. 328; Lewis v. Lyman, 22 Pick. (Mass.) 437. Unqualified tenancies. — In the vast majority of cases where tlie courts have held the rehition of landlord and tenant did exist, they have also decided tliat the owner and cultivator were not tenants in common of the crop, and that the entire crop belonged to the cultivator until delivery or other equivalent act. Stewart v. Dougiity, 9 Johns. (N. Y.) 108; Warner v. Abbey, 112 Mass. 355; Orcutt i-. Moore, 134 Id 48; Alwood v. Ruckman, 21 III. 200 ; Overseers v. Overseers, 14 Johns. (N. Y.) 365 ; Jackson v. Brownell, 1 Id. 267 ; Deaver v. Rice, 4 Dev. & Bat. (N. C) 431 ; Waltson v. Bryan, 64 N. C. 764; Harrison v. Ricks, 71 Id. 7; Woodruff v. Adams, 5 Blackf. (Ind.) 317; Dixon v. NiccoIIs, 39 111. 372; Hoskins r. Rhodes, 1 Gill & Johns. (Md.) 266 ; Ream v. Harnish, 45 Pa. St. 376 ; Rhicliart v. Olwine, 5 Watts & Serg. (Pa.) 157 ; Front v. Hardin, 56 Ind. 165 ; Lacy v. Weaver, 49 Id. 373 ; Williams v. Smith, 7 Id. 559; Chissom v. Hawkins, 11 Id. 316; Fowler v. Hawkins, 17 Id. 211 ; Chicago, &c., R. R. Co. v. Linard, 94 Id. 319; Cunningliam v. Baker, 84 Id. 597; Gordon v. Stockdale, 89 Id. 240; Ross v. Swaringer, 9 Ired. L. (N. C.) 481; vSymonds v. Hall, 37 Me. 354 (per Howard, J.); Sargent v. Courrier, 66 111. 245; Burns v. Cooper, 31 Pa. St. 426 (per Strong, J., but in this case a sufficient division and delivery had been made) ; Townsend v. Isenberger, 45 Iowa, 670; Blake v. Coats, 3 G. Greene (Iowa) 548; Rees v. Baker, 4 Id. 461 ; Merrit v. Fisher, 19 Iowa, 354. This case decides, as virtually all the others do, that the sliare of crop reserved to the owner was rent ; it also decides that the rent might be secured by the lessor under a special Iowa statute designed to take the place of common law distress. Larkin v. Taylor, 5 Ivans. 433, 441 ; Fry v. Jones, 2 Rawle (Pa.) 11 ; Strain v Gardner, 61 Wis. 174 ; Manwcll r. Manwell, 14 Vt. 14, 24; Hurd *;. Darling, 16 Vt. 377 ; Koob v. Ammann, 6 Bradw. (111.) 160; Redmon r. Bedford, 80 Ky. 13; Lamberton v. Stouffer, 55 Pa. St. 284; Brown u. Jaquette, 94 Pa. St. 113; Texas & Pac. Ry. Co. v. Bayliss, 62 Tex. 570 ; Walworth v. Jenness, 58 Vt. 670. Besides the foregoing, it has been held in many other cases that such con- tracts created tenancies. Darling r. Kellj', 113 ]\Iass. 29 ; Geer c. Fleming, 110 Id. 39; Cornell v. Dean, 105 Id. 435; Yates v. Kinney, 19 Neb. 275; Dworak o. Graves, 16 Neb. 706 ; Hatchell v. Kimbrough, 4 Jones (N. C.) 163, (trespass maintained against owner) ; Birmingham i\ Rogers, 46 Ark. 254 ; and that it might exist was said in Moulton v. Robinson, 27 N. H. 550, 557 ; Plansen v. Dennison, 7 Bradw. (111.) 73. (In this case it was said that if the cultivator did not have exclusive possession, the owner and cultivator might be tenants in common of the crop ; and the court said that in case of an oral lease it was a question of fact for the jury), Taylor v. Bradley, 39 N. Y. 129, 138, 139 (i„r Woodruff, J.). Held not to be tenancies. — In the following cases, in addition to others previously cited, it was held that the contract did not create tenancies, Bernal V. Havious, 17 Cal. 542; Lowe v. Miller, 3 Graft. (Va.) 205; Maverick v. Gibbs, 3 McCord (S. C.) 211; Taylor v. Bradley, 39 N. Y. 129; Chase v. McDonnell, 24 111. 236 ; Adams v. McKesson, 53 Pa. St. 81, several of them 205 *125 THE LEASE. [Cn. V. S. 1. the parties. Thus where A. agreed with B, to let him have the use of the Surrey Gardens and Music Hall, Newington, being cases of contnicts such as are admitted to be nothing but cropping con- tracts everywhere. Cropping contracts. — It is everywliere admitted (see cases previously cited) that under a jiure or unqualified cropping contract the entire legal ownership of the crop is in tiie owner of the land until division. As was said by liodinaii, .J., in Harrison i'. Kicks, 71 N. C. 7, 11, "A croj)per has no estate in the land ; that reniains in the landlord ; consequently, although he has in some sense the possession of the crop, it is only the j)0!ises- sion of a servant, and is in law that of the landlord. 'J"he landlord must divide to the cropper his share. In short he is a laborer receiving pay in a share of the crop." Leases on shares; Kent's opinion. — In contrast to this is the relation of a lessee on sliarcs, as stati'd by Ki'nt, Ch. J., in Stewart i'. Doughty, 9 Johns. (N. Y.) 108, 113: "They were not tenants in common in the crops and productions raised. The interest and property in the crop was exclusively in the tenant until he had separated and delivered to the lessor his [)roportion. It might as well be said that the lessor would have been tenant in common in the crop, though he was to receive only every tenth bushel of grain as a rent," &c. As ai»[)lied to the facts of that (.'ase, the language of Justice Kent, although tsiijijiosfd to be overruled in New York, is sustained by the weight of American authority. The contract in tliat case was an indenture of lease for six years, and the cultivator was "to render, yield and pay to" (the owner) "the one-half of all the wheat," &c., and it does not appear that the owner was to furnish any portion of the seed, &c. Stewart v. Doughty is sustained in New York by Jackson v. Hrownell, 1 Johns. 207, and Overseers r. Overseers, 14 Id. :){):>. The law in New York. — Xotwithstanding the later New York cases, as, Caswell V. Districh, 1.5 Wend. .37!) ; Putnam r. Wise, 1 Hill, 2:54; De Mott r. Ilagerman, 8 Cow. 220 ; Dinehart r. W^ilson, 15 Barb. 505; Harrower v. Heath, 19 Id. Z'W, supposed to overrule Stewart v. Doughty, it is still believed that a tenancy on shares may be created in New York. See opinion of Woodruff, J., in Taylor v. Bradley, .39 N. Y. 129, 1:58, 139. The presumption, however, will ordinarily be in that state, that if the contract is not a pure cropping con- tract, it is a qualified one, in which the cultivator is a tenant in common in the crop, but has no legal possession in the land. The law in majority of American states. — In the majority of Ameri- can st;ites, it is believed, the law is, as it was laid down by Caton, C. J., in Alwood I". Huckman, 21 111. 200, 201, viz. : " The law is too well settled to admit of dispute " that contracts to cultivate land, though for a single year, may or may not constitute tenancies according to the intentions of the i)arties as expressed in the contract or explained by the cirtMimstances. ' If the relation of landlord and tenant exists, "the parties are not tenants in common of the crop raised, but the title to the whole is in the tenant until the rent stipulated is j)aid." Tenancy in common in the land. — There may possibly be held to exist another relation between the jiarties in some states and under some circum- Btances, to wit : a tenancy in common in the land C«ee Kndicott, J., in Warner i;. Abbey, 112 Mass. .355, and Hiire /•. Celey, Cro. Eliz. 143). 2U»i Cii. V. S. 1.] DEFINITION OF LEASE. *125 for four (lays at 100/. j)er clay, for the purpose of giving a series of four grand concerts and day and night fetes ; but from the terms of the agreement it was evident that A. was not to part with the possession of the premises during those four days: this was held no demise (g). So where A., an owner of lace machines, paid 12.9. a week to B. for per- mission to place the machines in a room in B.'s factory, and for free ingress and egress to the room for liiinself and work- men for the pnr[)Ose of working and inspecting the machines; B. supplied the necessary steam power for working the ma- chines, payment for which was included in tlio above sum : it was held that there was no demise to A. of any part of the room, and no relation of landlord and tenant created be- tween him and B. (/). Where an incorporated canal com- pany by deed granted to the plaintiff the sole and exclusive right or liberty of putting or using pleasure boats for hire on their canal, it was held that the grant did not create such an interest or estate in the plaintiff as to enable him to maintain an action in his own name against a person who disturbed his right of putting and using pleasure boats for hire on the canal (ryr). A licence to fasten a coal-barge to moorings fixed in a river, until determined by a month's notice — the licensee to pay 30/. annually towards the ex- pense of the moorings — does not amount -to a demise nor give the licensee an exclusive right to the use of the moor- ings, nor render him liable to be rated as the occupier of part of the bed of the river {h'). The grant by a riparian proprietor of a right to take water from a natural stream on which his land abuts, operates as a licence in gross, and not as a demise, and will not enable the grantee to maintain an action in his own name against a wrongdoer (t). The (e) Taylor v. Caldwell, .3 B. & S. Local Board, L. R., 4 Q. B. 0; 17 W. 820; .32 L. ,J., Q. B. 104. R. 70; see also London and North- (/) Hancock i;. Austin, 14 C. B., Western R. Co. v. Buckmastcr, L. R., N. S. 634; 32 L. J., C. P. 252. 10 Q. B. 444 ; 44 L. .1., M. C. 180; 33 (ff) Hill V. Tapper, 2 H. & C. 121 ; L. T. 329; Cory v. Bristow, L. R., 2 32 L. J., Ex. 217. App. Cas. 202. (/i) Watkins r. Overseers of Milton (/) Stockport Waterworks Co. v. next Gravcsend, L. R., 3 Q. B. 3.V) ; Totter, 3 II. & C. 300. 37 L. J., M. C. 73 ; Grant v. Oxford 207 *126 THE LEASE. [Ch. V. S. 1. gratuitous loan of a shed for a particular purpose operates as a mere licence revocable at any time (A;). A licence to get all the copperas stone which may be found in part of a manor, for twenty-one years, at the yearly rental of 251. is not a demise, and will not support a distress for the rent (Z). A demise of a fire-brick manufactory, for twenty-one years, with powers during such term to dig fire-clay from under certain adjoining land, does not amount to a [*126] * lease, but only to a licence as to the fire-clay, and will not prevent the licensor from digging parts of such fire-clay, or authorizing others to do so, or otherwise dealing with such adjoining land in a manner not inconsis- tent with the licence Qn}. Right of shooting, &c. — A. licence to hunt or shoot over land, although it does not give the licensee any estate in the land (?i), amounts to the grant of an incorporeal heredita- ment ; and an assignee of the reversion may sue for breaches of any covenant which touches or relates to the land and runs with it (o). But the licence to convey an estate must be by deed ; for a parol licence to exercise a right of way or other easement over land of the licensor, whether anything was paid for such licence or not, may be revoked at any time, either expressly or by doing some act inconsistent with such licence (^^). Any such licence is determined by the death of the licensor or of the licensee, or by an assignment of the land over which, or of the subject-matter in respect of which, the easement or privilege is to be enjoyed (^). But an action lies for a breach of contract to grant an incorporeal hereditament, although the contract be not under seal (r). (k) Williams V. Jones, 3 H. & C. W. 808 ; Hyde v. Graham, 1 H. & C. 25G ; 33 L. J., Ex. 207. 693 ; Wakk-y v. Frogfratt, 2 II. & C. (/) Ward V. Day, 4 B. & S. 337 ; 5 GO!) ; Waterflow v. Bacon, L. R., 2 Id. 3o9 ; 33 L. J., Q. B. 3, 254. Eq. 514 ; Gale, 74, 75. (/n) Carr v. Benson, L. K., 3 Ch. (7) Coleman r. Foster, Bart., 1 H. Ap. 524. & C. 37 ; Roberts i>. Rose, 3 II. & C. (n) Bird v. Groat Eastern R. Co., 1(52 ; 33 L. J., E.x. 1, 241 ; 35 Id. 02 ; 19 C. B., N. S. 208. Wallis v. Harrison, 4 M. & W. 538; (o) Hooper W.Clark, 8 B. & S. 150; 6 Id. 142; Roffey v. Henderson, 17 L. R., 2 Q. B. 200; 30 L. J., Q. B. Q. B. 575. 79. (r) Smart i\ Jones, 33 L. J., C. P. (/j) Wood V. Lcadbittcr, 13 M. & 154. 208 Ch. V. S. 2.] WHAT LEASES MUST BE BY DEED. *127 General requisites of a good lease. — These things must con- cur in the making of every good lease : 1. There must be a lessor, who is able to make the lease. 2. There must be a lessee, who is capable of taking the thing demised. 3. There must be a thing demised wliich is demisable. 4. If the thing demised or the term expressed to be granted be not grant- able without a deed, or the party demising be not able to grant without a deed, the lease must be made by deed, con- taining a sufficient description of the lessor, the lessee, the thing demised, the term granted, and the rent and cove- nants : and all necessary circumstances, as sealing, delivery, &c., must be observed. 5. If it be a lease for years, it must have a certain commencement, at least when it takes effect in interest or possession, and a certain determinatiop, either by an express enumeration of years, or by reference to a cer- tainty that is expressed, or by reducing it to a certainty upou some contingent event, which must happen before the death of the lessor or lessee. 6. There must be an acceptance of the thing demised, and of the estate by the lessee (s). * Sect. 2. — What Leases must he hy Deed. [*127] A lease for three years or less may be in writing or parol as the parties please (^), but a lease for more than three years must be by deed.^ Such is the effect of 8 & 9 Vict. c. 106, s. 3, taken in conjunction with sects. 1, 2 of the Statute of Frauds. By 8 & 9 Vict. c. 106, s. 3, " a lease required by law to be in writing, of any tenements or hereditaments made after the 1st October, 1845, shall be void at law unless made by deed." And by the Statute of Frauds, 29 Car. 2, c. 3, s. 1, "all leases, estates, interests (s) Shop. Touch. 267. Lord Bolton v. Tomlin, 5 A. & E. (0 See Hylcy v. Hicks, 1 Stra. 651 ; 856. ^ Leases: when by deed in America. — In Canarla, leases of property which are requireil by law to be in writing must also be by deed. 2 Reed on St. of Frauds, sec. 797, citing C. S. LT. C. c. 90, sec. 4 ; 32 Vict. c. .3o, sec. 2 ; Rev. Sts. 1877 (Ont.) c. 98, sec. 4, and Hurley r. M'Donell, 11 U. C. Q. B. 208; Lewis V. Brooks, 8 U. C. Q. B. 576. See also Caverhill c.Orvis, 12 C. P. (Ont.) 392. In the mnjority of American states, leases arc not required, to be by deed unless for terms of years declared freeholds by statute. 209 *127 THE LEASE. [Ch. V. S. 2. of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, tenements or hereditaments, made or created by livery and seisin only, or by parol and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing (?<), shall have the force and effect of leases or estates at will only ; and shall not, either in law or equity, be deemed or taken to have an}- other or greater force or effect, any consideration for making any such parol leases or estates to the contrary notwithstand- ing " (a;) : excepting, nevertheless, sect. 2, " all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved ^o the landlord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised." ^ A lease for a (u) Smith L & T. 82 (2nd ed.)- paid and received. Clayton ?'. Blakey, (t) But such estates at will may 8 T. R. 3 ; Doe d. Rig^^e v. Bell, 5 T. change into tenancies from year to R. 471 ; 2 Smith L. C. 96, 102 (7th year, when any of the agreed rent is ed.) ; Smith L. & T. 28, 82 (2nd ed.). ' When valid by parol in America. — "Tlie excepted term for which leases not in writing may be valid is, in the American states, usually one year instead of three. It is so limited in Arizona, Alabama, Cali- fornia, Colorado, Dakota, Delaware, Idaho, Illinois, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New York, Oregon, Rhode Island, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming. In Connecticut there is the additional proviso that the parol agreement must be followed up by actual occupancy of the leased premises by the lessee or some one claiming under him. In Florida, the exception is in favor of leases for not more than two years, while in Indiana, North Carolina, and Tennessee, the term is increased to three years. In New Jersey and Pennsyl- vania, the qualification of the Englisli statute "from tlie making thereof "has been added to tiie three years' limitation. The English statute was re-enacted in but few states, — Georgia, Maryland, South Carolina, Massachusetts, Michi- gan, Missouri, New .lersev, Vermont. There is no exception whatever made in the statute in Oiiio. In Arkansas, a lease by parol has the force and effect of a lease at will only, and "shall not, either in law or equity, be deemed or taken to have any greater effect or force tiian a lease not exceeding the term of one year. ... In Louisiana, leases may be made cither by written or verbal con- tract, while the transfer of hlle of immovable jji-ojierty must be reduced to writing, and no parol evidence thereof is admissible." See )>ost, Ch. 6, note "'IVnancies from year to year," &c., as to tiie distinctions in tenancies in the different states. 2 Reed on the Statute of Frauds, sec. 795. Nearly all the American states 210 Ch. V. S. 2.] WHAT LEASES MUST HE HY DEED. *127 term of less than three years, with the right in the lessee, at his option, to prolong it to a period exceeding three years from the date of the lease, is within this exception (?/). Sect. 4 enacts " that no action shall be brought whereby to charge any person upon any contract or sale of lands, tene- ments or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith oi- some other person thereunto by him lawfully authorized (z). Void lease may operate as agreement. — The effect of 8 & 9 (y) Hand v. Hall, L. R., 2 Ex. D. be autliorizcd 6y jj^riViVir; as under sect. 355 ; 46 L. J., Ex. 603 ; 36 L. T. 765 ; 1 ; Smith L. & T. 93 (2nd ed.) ; Clarke 25 W. R. 734 — C. A., reversing de- v. Fuller, 16 C. B., jST. S. 24; Foster cision below, 2 Ex. D. 318 ; 46 L. J., v. Rowland, 7 H. & N. 103 ; Heard v. Ex. 242. Pilley, L. R., 4 Ch. Ap. 548. For the (•i) This extends to all mere agree- effect of sect. 4 upon an agreement nients for leases (even for less than for a lease, see ante, p. 85. tliree years) ; but the agent need not have refused to add the additional requirement, in the second section of the Statute of Frauds, "as lo the amount of rent to be reserved." Same. Three years, &c., computed from w^hen in England, United States, and Canada. — '' As tlie English statute expressly limits parol leases to those not exceeding three yenrs from t/ie inakitig thereof, it has alwaj's been held that the three years must be computed from the making of the agreement, . . . have been followed without question in those states in wliich the Statute of Frauds contains the clause from the making thereof. In Pennsylvania, accordingly, and New Jersey, the English rule has been followed." 2 Reed on St. of Frauds, sec. 813. Also in Ontario and New Brunswick same citing. Kaatz v. White, 19 U. C. C. P. 36; Brewing r. Berryman, 2 Pugs. (N. B.) 115; Hurley v. McDonnell, 11 U. C. Q. B. 208. Where the clause "from the making thereof" is omitted from Statute of Frauds, the number of years is generally considered "solely with reference to tlie duration of the term." 2 Reed on St. of Frauds, sec. 814, citing Sears V. Smith, 3 Col. 290 (per Thatcher, C. J.) ; Sobey v. Brisbee, 20 Iowa, 105; Jones V. IVIarcy, 49 Id. 188; Steininger r. Williams, 63 Ga. 475; Taggard v. Roosevelt, 2 E. 1>. Smith (N. Y,) 100 ; Young v. Dake, 5 N. Y. 465 ; Beear v. Flues, 64 N. Y. 518. In England, it was decided by Bolton i\ Tomlin, 5 A. & E. 856, that parol leases valid as being witliin limited period (three years), provided by the second section of the Statute of Frauds, are not within the provisions of tlie fourth section requiring all agreements concernirig an interest in land or not to be performed in one year, &c., to be in writing, and hence not affected by it. 2 Reed on St. of Frauds, sec. 815, and that doctrine has been followed as a rule in America; but there are a number of states where a contrary doctrine has been held. Same, and see cases cited. 211 *128 THE LEASE. [Ch. V. S. 2. Vict. c. 106, s. 3, is, that an instrument not under seal which purports to demise or let premises for more than three years from the making thereof, or even for a less term, if [*128] the * rent reserved does not amount unto two-third parts at the least of the full value of the thing de- mised, is void at law as a lease ; ^ but it may operate as an agreement for a lease (a), even at law. Since the above act courts of law will construe a writing rather as a valid agree- ment for a lease than as a void lease (h). Tenant entering under void lease. — If the tenant enter into possession under a void lease he thereupon becomes tenant from year to 3'ear ^ upon tlie terms of the writing, so far as they are applicable to and not inconsistent witli a yearly tenancy (0-^ Such tenancy may be determined by the usual (a) Parker r. Taswell, 2 De G. & J. GifTord, 1 A. & E. 52 ; Doe d. Thomp- 559; 27 L. J., Ch. 812; Coweii v. son r. Amev, 12 A. & E. 479 ; Klmtox Phillips, 33 Beav. 18. v. Lindley," 3 M. & Gr. 498 ; Lee i-. (6) Bond r. Rosling, 1 B. & S. 371 ; Smith, 9 Excdi. (3(52 ; Beale v. Saun- 30 L. J., Q. B. 227 ; Rollason r. Leon, ders, 3 B. N. C. 850 (as.sijjnce under 7 II. & N. 73 ; 31 L. J., Ex. 96 ; Tidey void lease) ; Doe d. Penninfrton v. V. Mollett, 16 C. B., N. S. 298 ; S3 L. Taniere, 12 Q. B. 998, 1013 ; Tress v. J., C. P. 235 ; Hayne v. Cummings, Savage, 4 E. & B. 36 ; Pistor v. Cater, 16 C. B., N. S. 421. 9 M. & W. 315; Doe v. Browne, 8 (c) Doe d. Rigge v. Bell, 5 T. R. East, 165 ; Cooch v. Goodman, 2 Q. 472 ; 2 Sm. L. C. 96 ; Richardson v. B. 580. ^ Parol leases. — " In some states, it is declared that no action shall be maintained upon a parol lease which exceeds the statutory limitation ; in others, the lease its.elf is declared void." 2 Reed on St. of Frauds, sec. 804. - Leases void by Statute of Frauds, or by other statutes. Effect of occupation under them. — In the majority of American states, as well as in England, the tenant entering under a void lease for years becomes a ten- ant from year to year. P»eed on St. of Frauds, sees. 804-5. Kecder v. Sayre, 70 N. Y. 180; Lounsbery r. Snyder, 31 Id. 514; Blumenthal v. Bloomingdale, 100 I-d. 558, 561 ; People >: Rickcrt, 8 Cow. 226. In Maine, New Hampshire, and Massachusetts he becomes simply a tenant at will ; see cases cited later. In Missouri, where the stattite is similar to that of Massachusetts, the general rule is followed. Same citing Kerr r. Clark, 19 Mo. 1.32; Hammon v. Douglas. 50 Id. 434. If a lessee enter tmder void lease and suspend payinent of rent, and dis- (daim by conveying in fee, the Statute of Limitations will rim from the sus- pension and bar claims of reversioner. Webster v. Soutliey, 36 Ch. D. 9 (so held in case of lease for charitabl* use not complying with Mortmain Act). •■' Illegal leases.- — A lease executed on Sunday is absolutely void and in- capable of subsi'(iuent ratification, and if an implied tenancy subsequently arises from entry and possession, the lease cannot be resorted to, to prove the terms of the tenancy. Vinz r. Beatty, 61 Wis. 645, 649. 212 Ch. V. S. 2.] WHAT LEASES MUST BE BY DEED. *129 notice to quit at the end of the first or any subsequent year thereof (c?) ; and it will determine, witliout any notice to quit, at the end of the term mentioned in the writing (i?). But if the lessee do not enter, he will not be liable to an action for not taking possession (/) ; nor, on the other hand, will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed ((/). The effect of the act 8 & 9 Vict. c. 106 is not to put an end to oral leases, but merely to superadd to such leases as are required by the Statute of Frauds to be in writing, the necessity of their being hjf deed. Leases by indenture. — First, then, of leases by deed. A deed is a writing sealed and delivered by the parties, and is either an indenture or a deed-poll. If a deed be made by more parties than one, there ought regularly to be as man}^ copies of it as there are parties, and each formerly was cut or indented (instar dentium) on the top or side, to tally or correspond with the other, which deed so made is called an indenture (Ji). Formerly, if a deed began "• This indenture " made, &c. and the parchment or paper was not indented, it was not an indenture, because the words could not make it indented ; but if the deed was actually indented, though there were no words of indenture in the deed, yet it was an indenture in law ; for it might be an ind*enture without words, but not by words without indenting (^'). But now by 8 & 9 Vict. c. 106, s. 5, " a deed executed after the 1st October, 1845, purporting to be an indenture, shall have the effect of an indenture * although not actually in- [*129] dented." All the parts of an indenture make but one deed, and each part is of as great force and effect as all the parts together ; so they are esteemed the mutual acts of the respective parties, each of whom may be bound by either part {d) Cole Ejec. 3f), 222. (cj) Drnry v. Macnamara, 5 E. & B. (e) Tress ?•. Savage, 4 E. & B. 36 ; 612 ; Jinks v. Edwards, 11 Exch. 775. Cole Ejec. 223, 444. {!,) Style, 459 ; 1 Inst. 171 ; 2 Blac. (/) Inman v. Stamp, 1 Stark. 12 ; Com. 205. Edge V. Strafford, 1 C. & J. 391 ; 1 (?) Co. Lit. 229. Tyr. 295. 213 *129 THE LEASE. [Ch. V. S. 2. of the same, for tlie words of the indenture are the words of each party (Z^)-^ When the several parts of an indenture are interchangeably executed by the several parties, that part or copy which is executed by the grantor is usually called the orn/inal, and the rest are duplicates or counterparts (Z). Counterpart. — A lessee who executes the counterpart of a lease or any person claiming under him, cannot dispute its admissibility in evidence, or impeach its validity on the ground of the original lease not being properly stamped (w). A counterpart is primary evidence against the lessee, and all the persons claiming under him, of the contents of the lease and of the execution thereof by the lessor (ii). Discrepancy bet-ween counterpart and lease. — The ordinary rule is, that where the lease and the counterpart conflict, the lease prevails ; but tliis rule does not apply where the mistake is clearly in the lease. So it was held by the Court of Ap- peal in Burchell v. Clark (o). There, by lease dated in 1784, the lessor demised the premises to the lessee for 94| years, "yielding during the said term of" 91^ years a certain rent. The counterpart spoke of the term as 91^ years in both instances. The court (Kelly, C. B., diss.), reversing the {h) Plowd. 134, 421 ; Lit. s. 370. ton v. Kfrnig, 18 C. B. 235; Homes v. (/) 2 Bhic. Com. 296. Pearce, 1 F. & F. 283 ; Cole Ejec. 170, Im) Paul V. iMoek, 2 Y. & J. 116. 253. (n) Burleigh v. Stibbs, 5 T. R. 465; (o) Burchell r. Clark, L. R., 2 C. Roe (1. West v. Davis, 7 East, 363; P. D. 88; 46 L. J., C. P. 115; 35 L. Hughes V. Clark, 10 C. B. 005 ; Hough- T. 090 ; 25 W. R. 334. 'Execution of lease. — Examples: AVIiero the covenants are mutual and dependent a party who has performed his covenants, but Tiot sealed the indenture, may sue the other in covenant. Jennings i-. McComb, 112 Pa. St. 518, 522 (icrTrunkey, J.). A title will pass hy an indenture, sealed only hy the grantor, if acce])ted by the grantee. Both will be bound by the covenants, the remedy against one being assumpsit and against tlie other covenant, drove v. Hodges, 55 Pa. St. 504. An indenture of lease with independent covenants signed only by the lessor is an effectual demise if the lessee occupy under it, Libbey ;■. Staples, 3i) Me. 166 ; but if the lessee only execute and do not occupy the lessor cannot enforce it, Cleves v. Willoughby,"? Hill (N. Y.) 83 {per Beanlsley, J.). A sim|)Ie contract on one side is a sufficient consideration for a covenant on the other. School Directors r. McHride, 22 Pa. St. 215. A lessee, who by mistake has signed a lease drawn by lessor admitted pot to contain the agreement of the parties and has not taken possession, is not liable for rent. Wynian v. Sperbeck, i'>(\ Wis. 405. 214 Ch. V. S.3.] FORM OF LEASE. *1.30 decision below, held that as it was clear that there was some clerical error in the lease, the counterpart might be used to correct it, and that tlie premises were recoverable by action brought at the eind of the 91;^ years. General requisites. — A lease by deed must be written or printed : it may be in any character or language : it cannot be exemplified upon wood, leather, (-loth, or the like, but only upon parchment or paper; for the writing or printing upon them can be least vitiated, altered, or corrupted. It must also have the regular stamps imposed upon it by statute for the increase of the public revenue (^^). Effect of loss of lease. — The estate of the lessee is not determined by the loss or cancellation of the lease, so that the existence of the term can be proved ; for the estate is derived from the lessor, and not from the lease otherwise than as it shows the intention of the parties, which is not altered by the loss or cancellation of the instrument of demise (^q). Where no counterpart can be found, the landlord is entitled to inspect and take *a copy of [*130] the lease (r). So, on the other hand, in a proper case, the tenant may obtain an inspection of the duplicate or counterpart lease (.'<). Under an agreement that the lessor would, at the request and costs of the lessee, grant a lease, the lessor is not entitled to charge the tenant with the expense of a counterpart (t). Sect. 3. — Form of Lease. Statutory form. — An attempt has been made by the legis- lature to shorten leases, and accordingly the 8 & 9 Vict. c. 124, gives a concise form, which may be adopted if parties desire it (w). But this form is somewhat inaccurate, and is, it is believed, seldom used (x). (p) See the Stamp Act, 1870, a Doe d. Morris v. Roe, 1 M. & W. 207. consolifliitiiig Act. jmst. Appendix A., (,s) Doe d. Child v. lioe, 1 E. & B. Sect. 7 ; and see also Sect, i:] of thic 279 : Cole Ejec. 120, 200. chapter. (/) Jennings v. Major, 8 C. & P. 61 ; {q) Read !-. Brookman, ?> T. R. see post. Sect. 13. 151 ; Lord Ward r. Lumley, 5 H. & (?/) See post, Appendix A., Sect. 1. N. 87, 05(1; 29 L. J., Ex. 322. (.c) Numerous precedents of leases, (r) Doe V. Slight, 1 Dowl. 103 ; &.c. are given in Appendix B., post. 215 *130 THE LEASE. [Ch. V. S. 3. Usual words of demise. — The usual words by which a lease is made are, " demise and lease," or, " demise, grant, and to farm let ; " but any words which amount to a grant are suffi- cient to make a lease (^) ; and it may be laid down for a rule, that whatever words are sufficient to explain the intent of the parties, that the one shall divest himself of the pos- session and the other come into it, for any determinate time, whether they run in the form of a licence, covenant or agree- ment, are of themselves sufficient, and will in construction of law amount to a lease for years as effectually as if the most proper and pertinent words had been made use of for that purpose ; for a lease of years being no other than a con- tract for the exclusive possession and profits of the land on the one side, and a recompense of rent or other income- on the other, — if the words made use of are sufficient to prove such a contract, in whatsoever form they are introduced, or how- soever variously applicable, — the law calls in the intent of the parties, and moulds and governs the words accordingly (2).^ Where the owner in fee of premises demised them for a term of 999 years, and afterwards released to the lessee the reversion in fee ; and the latter, by indenture reciting the demise, did "grant, bargain, sell, assign, and set over "the premises for the residue of the term of 999 years : — held, that there was a resuscitation of the term by virtue of these words (a). In Cottee v. Richardson, the plaintiff in consid- (//) Co. Lit. 45; 2 Blac. Com. 318. distinction between lease and licence, (2) Bac. Abr. tit. Leases (K) ; see aiitr, 124. Smith L. & T. 84, 85 (2nd ed.). For (<() Deiin d. Wilkins v. Kemeys, 9 East, 3G0. ^Leases combined v^ith other contiacts. — An agreement by one to convey and other to buy in five years and to occu])y and jiay interest on pur- chase-money meantime creates tenancy from year to year. Doe d. Cliff v. Connaway, Ber. (N. B.) 574. A contract of sale with delivery of possession conditioned if not conii)U'teii to pay for use creates a tenancy. Fairbank v. riiel|)s, 22 Pick. 535. Morff,'af;es are sometimes made in Enj^iand witli attornment clauses givinj; power to distrain. Tliey are held to constitute bills of sale of the seized projierty under Bills of Sale Act, 1878, 41 & 42 Vict. c. 31, s. G, and unless as within exception the power to distrain is consociuent upon mortt;at;ees takinj; jiosscssion and demising to mortgagor. lie Willis, ex parte Ken- nedy, 21 Q. B. I). 384. Under a mortgage demise trade fi.vtures will pass if conveyed by words sufficient to convey them in mortgage. Southport & W. Lancashire Haidting Co. i,-. Thompson, 37 Cii. 1). 04. 21G Cii. V. S. 3.] FORM OF LEASE. *131 eration of 530Z. to be paid by A. demised to him premises for 55 years at the yearly rent of 84?., and subject to * covenants to repair, &c. The consideration not *[131] having been paid, A. assigned to the plaintiff the residue of the term then unexpired, subject to the rents and covenants, and with a power of sale. In pursuance of that power the plaintiff, in consideration of 500/. " bargained, sold, assigned, and transferred, and set over " to the defend- ant the said premises, to hold "for the residue of the term of 55 years," subject to the yearly rent of 84/., and the covenants contained in the lease to A. ; and the defendant covenanted to pay the rent and perform the covenants. The defendant having entered, it was held, that although the mortgage by A» to the plaintiff operated as a merger of the term originally granted, yet the assignment by the plaintiff to the defendant created a new lease for the residue of the unexpired term, and consequently the defendant was liable on the covenants (J). Lease must show intention to demise. — Although no specific words are necessary to create a lease, yet there must be words used which show an intention to demise : therefore, where a lessee of tithes agreed with the owner of lands, for certain collateral considerations, not to take tithes in kind from the tenants of the lands for twelve years, but to accept a reason- able composition not exceeding 3s. 6^:?. per acre, it was ad- judged to be no lease (c). Where, on the letting of land to a tenant, a memorandum was drawn up, the terms of which were, that he should on a future day bring a surety and sign the agreement, neither of which he ever did ; it was held, that the memorandum was a mere unaccepted proposal, and did not operate as a lease ((7). An agreement bearing even date with a lease, b}^ which it was agreed that the lessor should manage the farm leased for the lessee ; the lessee giving 12s. a week to the lessor, and " allowing him and his family to reside and have the use of the dwelling-house and (6) Cottee v. Richardson, 7 Exch. (c?) Uoe d. Bingham v. Cartwright, 148. 3 B. & A. 326. (c) Brewer v. Hill, 2 Anstr. 413. 217 *132 THE LEASE. [Ch. V. S. 3. furniture free of rent: " has been held not to be a lease (c). Where a contract was made between A. and B., that B. should receive certain sums of money from A., and should build certain houses on A.'s land, and procure responsible tenants for the same at a given rate, and himself pay the rent from a certain day till he procured such tenants : it was held that no tenancy was created between A. and B. (/). Particular words -which have been decided upon. — The word " dedi " is said to be a sufficient word to make a lease for years (^), and even a " licence " to inhabit or enjoy (/^), if it give an exclusive right to occupy (Q, may have the same effect. The words "covenant, grant, and agree" [*lo2] that A. shall have the lands for so many * years, enure as a lease for years (Jc) ; so the word " cove- nant " will make a lease, though the words " grant and agree " be omitted (T). So a covenant "to stand seized," if made by the owner, or a covenant for quiet enjoyment (???) is a lease (ri) : for a covenant together Avith an entry amounts to a lease ; but a covenant merely does not vest the estate m the lessee, but only gives him a right to enter and possess it ; and therefore the estate is not vested in him till actual entiy (o). Interesse termini. — A lease, however formal (not being a bargain and sale under the Statute of Uses), creates only an interesse termi'ni before entry (|>).^ (e) Doo (1. Hughes );. Dcrry, C. & (/) Richards ?'. Scly, 2 Mod. 80. P. 494 ; Mayliew v. Suttlc, 4 E. & B. {in) Doe d. Pritchard v. Do(hl, 5 B. .S47. & Adol. G80. (/) Taylor v. Jackson, 2 C. & K. 22. («) Right d. Bassett v. Thomas, 3 (f]) Co. Lit. 301 b; Riglit d. Green Burr. 1441, 144(J ; 1 W. Bhic. 44(5. t'. Proctor, 4 Burr. 2209. (o) Copley v. Ilepworth, 12 Mod. 1 ; (/() Hall V. Seahriglit, 1 Mod. 14. Co. Lit. 37. (0 Reg. f. Morrish, 32 L. J., M. C. ( />) Cole Ejec. 459; Barnett v. 245. Karl of Guildford, 11 Exch. 19 (Jc) Whitlock V. Horton, Cro. .lac. Anderson i;. Radcliff, E. B. & E. 91, 800. ' See 4 Kent's Com. (13th ed.) sec. 97. It lias been held that a lessee under a valid subsisting lease had power to sublet, Chung Yow ;>. IIoj) Cliong 11 Ore. 220, and tiiat under an oral lease he could not sue for posse,>isioii. Moore v. Kay, 5 A. R. (Ont.) 201 ; Marrin v. Graver, 8 Ont. 39, 40. A lessee under oral lease for term of years eoininencing in fiitttm, after entry, is tenant from year to year. Brewing v. Berrynian, 2 I'ugs. (N. B.) 115 {per Allen, J.). 218 Cii. Y. S. 4.] CONSTRUCTION OF LEASE. *133 Sect. 4. — Construction of Lease. Whether lease or agreement. — Before tlie Act of 1845 (8 & 9 Vict. c. 106), s. 3 required all leases for more than three years to be by deed, questions very frequently arose whether a particular instrument was intended to operate as an actual lease, or merely as an agreement to grant one.^ The decis- ions were numerous and conflicting (cf)^ but as the Act of 1845 has very considerably diminished their importance, it is sufficient to state here that their general effect may be taken to be that the intention of the parties was considered, and that the courts would construe the document very liberally in order to effectuate that intention (r). Effect of void lease. — A written contract not under seal made since the Act of 1845 for a longer term than three years, or for three years to begin from a subsequent day, or even for a less term if the rent reserved is less than two- thirds of the full improved value of the thing demised, can- not operate as a lease, or create any term, it being " void at law." ^ But it may operate as an agreement for a lease (.s), and so be enforced in equity by a decree for a specific per- formance (^), or even treated as an actual lease (?(). An action at law may be maintained upon it for not granting, or hot accepting, as the case may be, a lease pursuant to such contract (v) ; but not an action for not giving possession at the time * appointed for the commence- [*133] ment of such lease, because the possession bargained for is not a possession as tenant at will or from year to year, but a possession for a term of years to be created by the (?) See Chapman v. Bluck, 4 B. N. (t) Parker v. Taswell, 2 De G. & J. C. 187; Chapman v. Turner, 6 M. & 559; 27 L. J., Ch. 812; Cowcn v. W. 100; Rawson v. Eieke, 7 A. & E. Phillips, 33 Beav. 18. 451. («) See Walsh v. Lonsdale, 21 Ch. (r) See Poole y. Bentley, 12 East, D. 9, and p. 86, anie; but that case 168. has no application to a void lease not (s) Tidey v. Mollett, 10 C. B., N. S. capable of being construed as an 298; 33 L. J., C. P. 235; Hayne v. agreement for a lease. Cummings, 16 C. B., N. S. 421 ; over- {v) Bond v. Kosling, 1 B. & S. 371; ruling Stratton v. Pettitt, 16 C. B. 30 L. J., Q. B. 227. 420. 1 See ante, sec. 2, notes. 219 *133 THE LEASE. [Ch. V. 5. 4. lease (j:). Such last-mentioned action lies, Loweyer, upon a contract for less term than three years (y). Effect of entry under void lease. — Eyen when the Contract is for more than tliree yeai-s. if the tenant be allowed to enter and take possession under such contract, and pajs any of the rent therein expressed to be reseryed. a tenancy from year to year ^"ill be thereby created upon the terms of such contract, so far as they are applicable to and not inconsistent with a yearly tenancy (z)-^ Actual payment of rent is not always essential; if the payment be allowed to stand oyer by mutual consent, that is sufficient (a) ; payment of the rent does not of itself create a tenancy from year to year, but is only evidence from which a jury may find the fact (6). WTiere payment of rent unexphiined wotild ordinarily imply a yearly tenancy, it is open to the payer or receiyer of such rent to proye the circumstances under which such payment was made for the ptirpose of repelling such implication (c). Until there has been a payment of rent, or something equiv- alent to such payment, a distress cannot be made for the rent expressed to be reseryed, no actual tenancy at an agreed rent (t) DruTT r. Macnamara, 5 E. & B. son r. Gifford, 1 A. & E. 52 ; Smith 612. ' L. i T. 80, 81 (2Dd ed.), (jr) Jinks r. Edwards, 11 Exch. (a) Cox r. Bent, 5 Bing 185 : Yin- 775. cent r. Godson, 24 L. J., Ch. 122. (z) Clayton r. Blakev, 8 T. R. 3 ; 2 (6) Jones r. Shears, 4 A. & E. 832 ; Smith L. C 102 (7tli ed.) ; Tress r. Finlav r. Bristol and Exeter R. Co., Savage, 4 E. & B. 36; Doe d. Penn- 7 Exch. 415, 420. ington r. Taniere, 12 Q. B. 998, 1013; (c) Doe d. Lord r. Crago, 6 C. R Lee r. Smith, 9 Exch. 662 ; Beale r. 90. Sanders, 3 Bing. X. C. 850; Richard- - Leases void as imperfectly executed , effect of occupation tmder them — ' >ccupation unitr an iniperli-ctly e.vecuted lease lorvcars will, in the majority of the .American states, create a tenancy from year to year upon the terras specified in the written lease. Fougera r. Cohn, 43 Hun (X. Y.) 454 ; Laughran r. Smith, 75 X. Y. 209. (And see cases of occupancy under parol leases, ante, sec. 2, notes.) Though lease be signed by neither party, if accepted and acted upon by both it will be binding upon both. Farmers' Loan, Ac., Co. V St. Jo. & Den. City R. R. Co., 2 Fed. Rep. 117 ; 1 McCrary, 247. Under circumstances, mere temporary possession under void lease will not render one liable as tenant, as where, in a void coal-mining lease, one entered and prospected for coal, but did not mine. Capper r. Sibley, 65 Iowa, 754. It has been held that a parol lease for years ^ with entry), even though it create tenancy from year to year, yet will expire without notice at the end of the term. Doe d. Parkinson r. Haul>tman, Bert. (X. B.) 643. 220 Cii. V. S. 4.] CONSTRUCTION OF LEASE. *134 having been created (c?). But it is otherwise with respect to an agreement for a lease which contains an express stipu- lation for an intermediate tenancy at the rent and subject to the covenants and conditions therein mentioned until the lease shall be prepared (e). A yearly tenancy created by entry under the contract, and payment of any of the rent therein mentioned (or anything equivalent to such pay- ment), may be determined at the end of the first or any subsequent year of the term mentioned in the contract, by the usual notice to quit (/) ; and at the end of the terni mentioned in the contract the tenancy will expire without any notice to quit (g')} When the contract is for a lease for twenty-one years, determinable at the end of the first seven or fourteen years, the tenant cannot quit at the end of the first seven or fourteen years, ivithout any previous 'notice (K). Lease or agreement. — It is very seldom, if ever, that any question now arises whether a * contract for [*134] less than three years amounts to a hnise or only to an agreement. It depends upon the intention of the parties, to be collected from the writing, and from collateral circum- stances. If it contains words of present demise ("doth agree to let," &c.), altliough to hold from a subsequent day, it will amount to a lease, notwithstanding a more formal lease is stipulated for, that being considered only as a further assur- ance (i). The question in such cases is, whether the parties intended to create a tenancy before the execution of any fur- ther instrument (Jc^. An instrument containing an express proviso that it shall not operate as a lease but only as an agreement, will be constrned to be a mere agreement, not- withstanding it contains words of present demise (0- Bnt ((/) Hesan r. .Tolinsnn, 2 Tuunt. (/() Chapman r. Towner, 6 M. & W. 148; Dunk v. Hunter, 5 B. & A. 322. 100. (e) Pinero v. Judson, Bing. 206; (j) Toole v. Rentier, 12 East, 1(58; Uollason v. Leon, 7 H. & N. 73 ; 31 L. Tinero v. Judson, 6 Bing. 206; Ander- J., Ex. 96; Anderson v. Midland R. son v. Midland R. Co., 3 E. & E. 614; Co., 3 E. & E. 614 ; 30 L. J., Q. B. 04. 30 L. J., Q. B. 94. (/) Doe d. Thomson v. Amey, 12 (/,•) Smith L. & T. 85. A. & E. 476; Cole Ejec. 36, 222," 444. (/) Perring r. Brook, 1 Moo. & R. (if) Tress v. Savage, 4 E. & B. 36. r)10; 7 C. & P. 360. 1 See Note 1. 221 *135 THE LEASE. [Ch. V. S. 4. if it contains a clause to the following effect, viz. : " And it is hereby mutuallj- agreed tliat these presents shall operate as an agreement onl}-, and that until a lease shall be executed, the rents, covenants, and agreements agreed to be therein reserved and contained shall be paid and observed, and the several rights and remedies shall be enforced, in the same manner as if the same had been actually executed ; " and the tenant enters into possession under such agreement, the con- cluding stipulation will create an actual tenancy at a fixed rent, for which a distress may be made (?»). So where an agreement for a lease, to contain certain specified covenants, concluded thus : ''And in the meantime and until such lease shall be executed, to pa}^ the said yearly rent, and to hold the same premises, subject to the covenants above men- tioned : " it was held that the latter words amounted to an actual demise (w).^ General rules for construction. — Deeds — including, of course, leases by deed — being the highest description of pri- vate written documents are themselves the best evidence of the facts which they contain, the circumstances which they relate, and their makers' intentions. In their construction, regard must be had to all their parts ; and general words may be restrained by particular recitals (o). Where the recitals in a lease stated that a sum of money which was in part to be given for fixtures was part of the consideration for the lease, it was held, that, whether the lessee would or would not be estopped by it, he was not l)ound to execute such a lease (jt?). If a deed may operate in two ways, the one consistent with tlie intent of the parties, and the [*135] other repugnant to it, the courts * will put such a construction on it as to give effect to the intent (. .Tmlson. 8 ; Doe d. White v. Osborne, Ilollason V. Leon, 7 H. & N. 73 ; .31 L. 4 .Fur., O. S. 041, C. P. .T., Ex. 00. Compare these cases witli ( p) Vonhollen i'. Knowles, 12 IVl. Ilolhind r. Kensington Vestry. L. II., & W. 002. 2 C. P. r,0.-); .30 L. .7., M. C. lOf). (,/) Solly ?•. Forbes, 4 Moo. 448; (o) I'ayler v. lloniersliani, 4 M. & llotliam v. East India Co., 1 T. R. 8. 423; Simons v. Johnson, .3 B. iS: 03S. 1 See ante, Ch. 4, sec. 3, notes. 222 Cii. V. S. 4.] CONSTRUCTION OF LEASE. *135 for deeds must be constriKited so as to operate according to the intention of the parties, if by hiw they may ; and if they cannot operate in one form they will in another (r). Where a material word appears to have been omitted in a lease by mistake, and other words cannot have their pioper effect unless it be introduced, such lease must be construed as if that word were inserted, although the particular passage where it ought to stand conveys a sufficiently distinct mean- ing without it (s). An instrument of demise was produced in evidence, by which the plaintiff agreed to let for the term of one year fully to be complete and ended ; most of the subsequent stipulations in the leases were wholly inappli- cable to a tenancy determinable by a notice to quit; the document appeared on the face of it to have originally con- tained words creating a tenancy from year to year, which were struck out, and the above words as to the term only remained ; it was held, that the words struck out might be looked at to show what the intention of the parties was ; that the tenancy was for a single year only ; and that the terms inapplicable to such a tenancy must be considered as expunged, or as only applicable in case the tenancy should continue (/!). General words at the end of a particular spe- citication will not pass an}^ property of a different nature from that particularly mentioned (?<). Parol evidence inadmissible. — The general rule with regard to the admission of parol evidence to explain the meaning, or to add to, vary or alter, the express terms of a deed, is, that it shall not be admitted (.'c).^ Thus where property has (r) Goorltitle (/. Edwards v. Bniley, Breacli, 7 B. & C. 96 ; Hare v. Horton, Covvp. 600; Shep. Touch. 81 (sec. 5 B. & Adol. 715; Reg. r. Nevill, 8 Q. 13). B. 452, 40.3 ; East London W. W. Co. (,s) Wright V. Dickson, 1 Dow, 114, v. Trustees of Mile End Old Town, 17 147. Q. B. 512 ; Lyndon v. Stanbridge, 2 (/) Strickland v. Maxwell, 2 C. & H. & N. 51. M. 539. (.r) Ros. Ev. 17 (13th ed.). (») Anon., Lofft, 398; Sandinian ;;. 1 Parol evidence -when not admissible to vary, — McKcnzie v. Mc- Glaughlin, 8 Ont. Ill (oral evidence inadmissible to prove reservation in lease of right to put show cases in part of demised premises) ; Ala. Gold Life Ins. Co. I'. Oliver, 78 Ala. 158; Jungcrman v. Bovec, 19 Cal. 354 (parol evidence of reservation to lessee of right to remove buildings erected by him inadmissi- 223 *136 THE LEASE. [Cii. V. S. 4. been conveyed by a deed, parol evidence of an agreement to apportion the rent of tlie current quarter, contrary to the terms of the deed is inadmissible (^).^ So parol evidence is inadmissible to show that a particular close was intended to be included in or to be excluded from the deed (2). Exceptions. — The exceptions to such rule are^ — 1, where, although the deed is clearly enough expressed, some ambi- o-uitv arises from extrinsic circumstances ; 2, wliere the lau- guage of a charter or deed has become obscure, and the construction doubtful from antiquity ; 3, where the grant appears uncertain, owing to a want of acquaintance with the grantor's estate ; 4, where it is important to show a different consideration consistent with but not repugnant to that stated in the deed itself ; 5, where it becomes neces- [*136] sary to show * a different time of delivery from that at which the deed purports to have been made ; 6, where it is sought to prove a customary right not expressed in the deed, but which is not inconsistent with any of its stipulations ; 7, where fraud or illegality in the formation of 0/) Flinn v. Calow, 1 M. & G. 589. Norton r. Webster, 12 A. & E. 442; (z) Meres v. Ansell, 3 Wils. 275; Barton v. Dawes, 10 C. B. 201. And Hope V. Atkins, 1 Price, 143; Doe d. see Minton v. Geiger, 28 L. T. 449. ble) ; Taylor v. Soldati, 08 Cal. 28 (oral permission to pastnre more cattle than written lease allows is not valid against assignee of the reversion)- 1 Subsequent oral promises, -when nudum pactum. — A subsequent oral additional agreement, not fonnded on new consideration, is void as nudum pactum. Libbey v. Tolford, 48 Me. 31(> (subsequent promise to repair) ; Gill I.-. Middleton, 105 Mass. 477, 478 {per Ames, J.) ; Bowditcli v. Cliickering, 139 Mass. 283 (subsequent agreement of lessor to pay taxes which lessee had covenanted to pay, void) ; Proctor i\ Keith, 12 B. Mon. (Ky.) 252 (agreement of lessor to repair fencing which lessee had covenanted to repair, void). 2 Subsequent qualifying agreements, when valid. — It has been held that a scnled lease cannot lie changed by a subsequent executory parol agree- ment, lireher v. Reese, 17 111. App. 545. A subsequent oral agreement, however, if executed or fonnded on new consideration may, however, effectually qualify the relations of the i)arties. For example : a lessee may relinquish or lease back to the lessor a part of the demised premises, in consideration of lessee's failure to keep his cove- nants. Blumenthal r. Bloomingdale, 100 N. Y. 558. The efficacy of tlie new arrangement as an indepemlent transaction is, of course, ([UMlilii'd by the pro- vi.«ion8 of the Statute of Frauds. A lessee may orally sublet or assign part of the premises to the lessor, liounsbery v. Snyder, 31 N. Y. 514. 224 Ch. V. S. 4.] CONSTRUCTION OF LEASE. *136 the deed is relied on to avoid it.^ If a clause in a deed be so ambiguously or defectively expressed, that a court of justice cannot, even by. reference to the context, collect the meaning of the parties, it will be void on account of uncertainty (a). Hut this is the last rule of construction ever resorted to.^ Cases illustrative. — Where a party granted a manor by a particular name, and he had two manors of that name, parol evidence was admitted to show which of them he meant ; ^ and where there was a demise of premises in Westminster, late in the occupation of A., particularly describing them, part of which was a yard, parol evidence was received to show that a cellar situated under that yard, but which was then in the occupation of B., another tenant of the lessor, was not intended to pass (6). Evidence of usage was received to show that a room which had not been occupied with a cer- tain messuage did not pass under a demise of that messuage, together with all the rooms, chambers, and appurtenances thereunto belonging (c). Where a lease grants a right of way, evidence may be received of the state of the premises at the time of granting the lease, and then the judge will put a construction on the lease as to the line along which the way granted runs ; but if it is uncertain on the words which (a) Anon., 1 Mod. 180, Doe d. ^. 701 ; Paddock v. Fradley, 1 C. & J. Wyndham v. Carew, 2 Q. B. 317. 90. (6) Doe d. Freeland v. Burt, 1 T. (c) Kerslake v. White, 2 Stark. 508. 1 Rights of third party. — Parol evidence is admissible in behalf of third party (a prior niorti^agee, for example) to disprove statements in lease. He may prove the true consideration was not stated. Roth v. Williams, 45 Ark. 447, 449. - Collateral -written agreements. — A lease maj' be qualified by a col- lateral written agreement. The collateral agreement may consist of represen- tations contained in letters from lessor, and may be enforced by lessee. Mar- tin c. Spicer, 34 Ch. D. 1 (an injunction issued to restrain lessor from granting any leases whicli did not (-ontain restrictive covenants). Lindley, L. J., said : " It was urged, ' Why did j'ou not put the collateral contract into the lease? ' No doubt it would have been better, but it does not follow that you cannot make a collateral contract at the same time that you make a lease." 3 An ambiguous written contract' may sometimes be explained by evidence of the understanding at the time. Selden v. Williams, 9 Watts, 9. 225 *137 THE LEASE. [Ch. V. S. 4. of two ways is intended, parol evidence may be given to show which the grantor meant (c?). Expression of technical meaning. — Where an expression used in a written instrument has technical meaning, parol evidence is admissible to show that it has been used in that sense, and not in its ordinary meaning in common parlance, although that may be perfectly clear and unambiguous in itself; therefore, AA^here a lessee of a coal mine covenanted to get the whole of the coals " not deeper than or below the level of the bottom of the mine," at a particular point, it was held, that parol evidence of the vmderstanding amongst miners was admissible, to show that the word "level" had a particular technical meaning different from its ordinar}^ sig- nification of "horizontal line." It might be questionable whether a previous agreement between the parties for a lease of the same mine, and for which the lease in question was substituted, was also admissible in evidence for the same purpose (e). Again, where in a lease of a rabbit warren, &c., the lessee covenanted that on the expiration of the term he would leave on the warren 10,000 rabbits, the lessor [*137] paying * for them 60/. per thousand, it was held, that parol evidence was admissible to show that, by the custom of the country Avhere the lease Avas made, the AA'ord "thousand," as it applied t^ rabbits, denoted tAveh^e hun- dred (/). Where the lessee of a coal mine coA^enanted to pay a certain share of all such sums of money as the coals should sell for at the pit's mouth, evidence of the lessee's having accounted Avith the lessor, and paid him the share of the money produced by the sale of coals elscAvhere, was not considered admissible to ex})lain the intention of tlie par- ties (/y). Where a lessee made an agreement for a lease, and the under-lessee contiacted to erect a sliop-front to the house ; in ejectment for a forfeiture for not erecting the sliop-front, it Avas held, tliat the original lease by Avhich a (r/) Osborne v. Wise, 7 C & P. 761. (/) Smith v. Wilson, 3 \\. & Adol. (e) Clayton !-•. Orenson, 5 A. & E. 72H. .102; 4 N. & M. «02 ; (i M. W)4 ; Shore (7) Clifton r. AValmsIey, 5 T. R. V. Wilson, 9 CI. & F. 305. 504 ; (lerrard v. Clifton, 7 T. R. G70 ; 1 li. & P. 524. 226 Cii. V. S. 4.] CONSTRUCTION OF LEASE. *138 penalty was imposed, if the lessee allowed a trade to be carried on upon the premises, was not admissible in evidence for the defendant to explain the meaning of the words "shop- front" in the agreement (A). Since the passing of the 24 Geo. 2, c. 23, for altering the style, a lease of lands by deed, to hold from the feast of St. Michael, must, unless there be a custom to the contrary, as in Kent (i), be taken to mean N'eiv Michaelmas, and cannot be shown by extrinsic evidence to refer to a holding from Old Michaelmas, unless there be a custom, or a reference in the lease to a prior holding from Old Michaelmas (/r). But this rule has been held to relate only to leases by deed; for in a lease by parol made to commence at Lady-Day, evidence is admissible to prove that by the custom of the country Old Lady-Day was in- tended (Z). If there be any ambiguity or contradiction in expressing the time of the connnenceraent of a lease, the lease is construed beneficially for the lessee, on the principle that every man's grant shall be taken most strongly against himself Qni). Where a man granted an estate for life, without saj-ing whether it was for his own life or for that of the grantee, parol evidence was received to show what intereist he had in the estate : for if he was tenant in fee, it was considered that the grantee should take an estate for his own life ; but that if the grantor himself was a tenant for life onl}^, the grantee would take an estate for the grantor's life only (w). Evidence of custom. — The express terms of a lease cannot be controlled by the custom of the * country ; [*138] but if the lease be entirely silent as to the time of quitting, evidence of the custom of the country may be given (h) Doe d. Nash v. Birch, 1 M. & terbury r. Wood, supra; Denn d. Pe- W. 402. te.'s V. Hopkinson, supra. (i) Furley d Mayor, &c., of Can- (m) Anon., Dyer 261 b., pi. 28; terbury v. Wood, 1 Esp. 198. Lilley r. Whitney, Dyer, 272 a; Sea- (k) Doe d. Spicer v. Lee, 11 East, men's case, Godb. 166; Doe d. Davies 312; Doe J. Hall v. Benson, 4 B. & v. Williams, 1 II. Blac. 25; Shep. A. 588; Denn d. Peters v. Hopkinson, Touch. 88, s. 6. 3 D. & R. 507; Smith v. Walton, 8 («) Smith v. Doe (/. Earl of Jersey, Bing. 235. 2 Brod. & B. 551; 3 Moo. 339; 7 (/) Doe d. Hall v. Benson, 4 B. & Price, 281 ; 2 Bligh, 290. A. 588 ; Furley d. Mayor, &c., of Can- 227 *138 , THE LEASE. [Ch. V. S. 5. to fix the time (o). Altliougli no riglit to an away-going crop is reserved in a lease, if there are no covenants which either in express terms or by implication of law exclude such right, the lessee may produce parol evidence to show that he is entitled to such awa3'-going crop by the custom of the country (p). So evidence of custom for an away-going tenant to provide work and labour, tillage and sowing, and all materials for the same in his away-going year, the land- lord making him a reasonable compensation, has been received, although there was an express written agreement between the parties, when that agreement was not inconsistent with such custom (^). Sect. 5. — Description of the Demised Premises. (a.) G-enerally. Parts of lease by deed. — A lease by deed usually consists of the following parts : viz., 1. What is usually called the Pretnises, which contain a statement of the date ; the names, addresses, and additions of the parties ; the recitals (if any) ; the operative words ; the description of the parcels demised and the appurtenances ; also any exceptions or reservations thereout : 2. The Habendum^ or that part which lixes the duration of the term : 3. The Reddendum^ or reservation of rent : 4. The covenants : 5. A proviso or condition for re- entry for non-=payment of rent or non-observance of cove- nants ; or, for the determination of the term by notice before the expiration thereof ; e.g.,, at the end of the first seven or fourteen years. The premises. — The Preiviises in a lease are all the parts which precede the habendum. The office of this part of the lease is rightly to name and describe the lessor and lessee ; (o) Webb V. riummcr, 2 B. & A. 400; Favicll r. Qaskoin, 7 Exch. 21?, ; 746. 21 L. ,1., Ex. 85 ; Muncey v. Dennis, (/)) Caldecott i>. Smytbics, 7 C. & 1 II. & N. 210; Holding v. Tigott, 7 P. 808; Wigglewortb t-. Dallison, 1 JVmg. 405. Doug. 201 ; 1 Sniitb's L. C. 598 (7Ui (7) Senior v. Armytage, Holt, 197 ; C(l.); Wilkins u. Wood, 17 L. ,T., Q. B. llutton v. Warron, 1 M. & W. 400, 319 ; Hutton v. Warren, 1 M. & W. 47(5. 228 Cii. V. S. 6.] DESCRIPTION OF DEMISED PREMISES. *139 to state tlie consideration (r) ; to set forth with certainty the thing demised, either by express words, or by that which by reference may be reduced to a certainty ; and to state the exceptions or things reserved, if any. Description of the property. — With respect to the proper mode of describing the property to be demised, it may be remarked, "that corporeal hereditaments consist wholly of substantial and permanent objects ; all which may be * comprehended under the general denomination of [*139] land only ; for land comprehends, in its legal signifi- cation, any ground, soil or earth whatsoever; so the word ' land ' includes, not only the face of the earth, but every- thing under it or over it ; ^ and therefore if a man grant all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows ; ^ not but that the particular names of the things are equally sufficient to pass them, except in the instance of water, by a grant of which nothing passes but a right of fishing ; and to recover the land at the bottom of which, it must be called so many ' acres of land covered with water.' But the capital distinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls Avith the utmost propriety under the term made use of (though, indeed, by the name of a castle one or more manors may be conveyed ; and e converse, by the name of the manor a castle may pass) ; but by the nam.e of land, which is nomen generalissimum, everything terrestrial will pass" (.s).-^ The expressions "arable land, ()•) The premium or fine, if any, is (s) 2 Blac. Com. 18. generally expressed in words at length. 1 A dwelling-house is ordinarily realty, Smith v. Grant, 56 Me. 255, 259. It may be personalty, if built upon the land of another, with his consent {per Kent, J., supra). 2 If a man do not grant, but simply demise his land, things beneath the surface do not pass. Elwes v. Brigg Gas Co., 33 Ch. D. 562 {held, that a pre- historic boat found beneath the surface belonged to the lessor). 3 Growing crops. — These will pass by a devise of land, and do not belong to the executor, Pratte r. Coffman's Ex'r, 27 Mo. 424, and they will pass by a deed without reserve. Crews v. Mountcastle, 1 Leigh (Va.) 297,305 (a mortgage) ; Steele v. Farber, 37 Mo. 71 (a mortgage) ; Baird v. Brown, 28 La. An. 842. 229 *139 THE LEASE. [Ch. V. S. 5. meadow or pasture land," are specific descriptions of land, and are confined to land of that particular species ; and in general, where meadow or pasture land is named, it must be understood of ancient meadow or pasture (i). The words " more or less " must be confined to a reasonable quantity (w). "Where the description is untrue in part. — If the thing described be sufficiently ascertained, it is sufficient, though all the particulars are not true ; as if a man demise his meadows in B. and D., containing ten acres, whereas they contain twenty acres, all the meadows pass (a;). Whatever (0 Tresham v. Lamb, 2 Brownl. 46 ; Esp. 229 ; Cross v. Elgin, 2 B. & Adol. Guniiiiig V. Gunning, 2 Show. 8. 106. (»0 Day V. Fynn, Owen, 133; 1 (x) Com. Dig. tit. Fait (E. 4). If the crop, being fructus indnstriales, has been separately sold (though orall}') prior to a sale of the land, it will not pass by the subsequent deed. Austin V. Sawyer, 9 Cow. (N. Y.) 39; Newcomb v. Eamer, 2 Johns. (N. Y.) 421. In theory of the law, such crops are personalty even when growing in the soil. See Benjamin on Sales, Kerr's Ed., p. 116, 117, notes. It has been held that a crop of winter wheat might be seized on execution in December, and held as against subsequent seizure in August. Whipple v. Foot, 2 Johns. (N. Y.) 418; though in Noble v. Smith, 2 Id. 52', a parol gift of growing corn was held invalid for want of an actual delivery, and Kent, Ch. J., expressed a doubt if any sufficient delivery could be made other than by placing the vendee in possession of the lanil. Some of the cases distinguish between sales of mature and sales of imma- ture crops. By the majority of cases this distinction is now disregarded. Benjamin on Sales, Kerr's Edition, p. 117, note. As to parol or other reserva- tions of growing crops, see }wst, Ch. V., sec. 10, notes. Distinction between fructus industriales and fructus natiirales. — There is a distinction betwein such fruits as are tiie products of man's annual labor, and such as are natural (timber, grass, &c.). (ienerally the legal title to the latter will not pass except by an instrument sufficient to pass an interest in the land. It has been held in England, however, that even in case of such products as standing timber, &c., a sale of the property to be immediately or season- ably removed was valid, tiicHigh not executed as a conveyance of realty. Mar- shall V. Green, 1 C. P. Div. 35. The doctrine of this case is supi)orted by some American cases and denied by many otiiers, the latter iiolding that standing timber until severed is realty. Benjamin on Sales, Kerr's Edition, pj). 116, 117, notes, and Austin's Am. Farm Law, p. 70. Manure. — Manure made on farm will pass b}' deed as part of the realty. Kitiredge i\ Woods, 3 N. II. 503; Vehue v. Moshcr, 76 Me. 469; Chase v. Wingate, 68 Id. 204; Norton v. Craig, 68 Id. 275; Parsons r. Camp, 11 Conn. 625, 529, 530; and an away-going tenant (lannot remove it, thougii made with his own fodder, Lassell v. Iteed, 6 (Jreenl. (Me.) 222, though it has been held that it might be seized on execution by ids creditor during the term. Staples u. Emery, 7 Id. 201. 230 Ch. V. S. 5.] UI<:SCRIl^riON OF DEMISED PREMISES. *140 constitutes the essence of the thing granted, or is parcel of it, will pass with it, although it be accidentally severed at the time of the lease ; therefore, by the lease of a mill, the mill- stone passes, though severed at the time ; so by the lease of a house, the doors, window sashes, locks, keys, &c., pass as parcel of it, although by accident they may not be in tlieir proper places when the lease is made. A man may demise his farm, which may comprehend a messuage and much land, meadow, pasture, wood, &c., thereunto belonging, or there- with used ; for the word " farm " properly signifies a capital or principal messuage, and a quantity of land thereunto aj)per- taining (?/). So by the name of a messuage, he may pass a house, a curtilage, a garden, an orchard, a dove-house, a shop, or a mill, as parcel of the same (2) ; so the word * " house " includes everything that would ordinarily [*140] pass by that name (a), the like of a cottage, a toft, a chamber, a cellar, &c. (^). Under a lease of all that part of the park called B. situate and being in the county of O., and now in the occupation of S., lying within certain specified abuttals, with all houses, &c., belonging thereto, and which are now in the occupation of S., a house on a part which is within the abuttals, but not in the occupation of S., will pass (c).^ By a lease of all that part of the townland of B., containing 509 acres, arable, meadow, and pasture, bounded by certain boundaries, it was held that 400 acres of bog and {y) Shep. Touch. 93 ; Lord Port- tion R. Co., 1 De Gex & J. 446 ; 26 man i'. Mill, 3 Jur. 356, L. C. ; Good- L. J., Ch. 731; Hewson v. South- title V. Paul, 2 Burr. 1089; Goodtitle Western R. Co., 8 W. R. 467; Steele V. Southern, 1 M. & S. 298. v. Midland R. Co., L. R. 1 Ch. Ap. (s) Shep. Touch. 94 ; Doe d. Nor- 275. ton V. Webster, 12 A. & E. 442 ; Cole {l>) Shep. Touch. 94. V. West London and Crystal Palace (c) Doe d. Smith v. Galloway, 5 B. R. Co., 27 Beav. 242; 28 L. J., Ch. & Ad. 43; compare this with Martyr 767. V. Lawrence, 2 De Gex, J, & S. 261. (a) Grosvenor v. Hampstcad Junc- 1 Discrepancies. — In case of a discrepancy between distances and boundaries there is no breach of the covenant of seizin. The boundaries will control. Almon v. Woodill, 6 Russ. & Geld. (N. S.) 13. If a building is divided into two tenements, one only of which fronts on Endicott Street, a lease of a building on Endicott Street will pass only that part. Houghton v. Moore, 141 Mass. 437. 231 *140 THE LEASE. [Ch. V. S. 5. land reclaimed from bog within the boundaries, also passed () ; but this rule does not apply where on the face of the lease the habendum is wrong {q}. (b) Lease for Life of the Lessee. Lease for life of the lessee. — An estate for life may be created by deed, either by express limitation or by a grant in general terms. Thus a grant by A. to B. of the manor of Dale gives to B. an estate for his life (r). This, however, would be otherwise if a contrary intention could be collected from the terms of the deed (s). Where A. demises to B. for the term of his natural life, the demise is prima facie for the life of B. ; but where A. demised to B., his executors and administrators, for the term of his natural life, and the lease contained a covenant by A. for the quiet enjoyment of the premises by B., his executors, &c., during the natural life of A., it was held that the word '' his " in the demising clause must be referred to A., the grantor, and not to B., though his name was the last antecedent (i). Absolute or conditional. — Estates for life granted abso- lutely will, generally speaking, endure as long as the life for which they are granted (u') : but there are some estates for life which may determine upon future contingencies, before the life for which they are granted expires : as where a lease is to a man quamdiu se bene gesserit ; to a woman durante viduitate or dum sola ; to husband and wife during cover- ture ; to A., as long as he inhabits or pays such rent, or till he be preferred to such a benefice, or till out of the profits he has paid £100 or other sum : — in these and the like (o) Windsmore r. Hubbard, Cro. (s) Doe d. Pritchard v. Dodd, 5 B. Eliz. 57. & Ad. 689; Co. Lit. 42 a. (p) Shep. Touch. 52. (0 Doe d. Pritchard v. Dodd, sit- (7) Burchell v. Clark, L. R., 2 C. pra. P. D. 88 ; and see ante, p. 120. (m) 2 Blac. Com. 121. (r) Co. Lit. 42 a, 183 a. 239 *146 THE LEASE. [Ch. V. S. 6. cases, the duration of the estate depends merely upon the condition (a;). But the estate is as perfect an estate for life until the event take place, as if it had been granted abso- lutely. A lease for years, if the lessee so long live, [*146] with a remainder to * another for the residue of the term, must be construed to give the remainder-man a power to enjoy during all the residue of the years to come («/). (c) Lease for Lives. Origin of the lease for lives. — The lease for the lives of persons other than the lessee, or as it is commonly called, the "lease for lives" has, notwithstanding its speculative character, been common from very ancient times in many parts of England (z), chiefly in the west, or where the land- lords have been ecclesiastical corporations. Such a lease confers a freehold interest upon the lessee, whereas a lessee for years has a chattel interest only (a), and this is why the lease for lives has so long continued in favour, continuing, by mere force of habit, long after the causes for its retention have ceased to operate. It is, however, believed to be gradually falling into desuetude, and, indeed, the objections to it in modern times are too obvious to dwell upon. Commencement of leases of lives. — A lease for lives, to begin from the day of the date thereof, is good and will not be said to convey a freehold to commence in futuro (/>) : so a lease to hold the lessee for his life, which term shall begin after the determination of a previous term for three lives, is good (c). But, although the above rule prevails at common (r) Co. Lit. 42 a. lives had the rifiht to reinstatement (jl) Wriglit d. I'lowden v. Cart- after eviction, whereas tlie lessee for Wright, 1 Burr. 282; 1 Ld. Ken. 529; years had only a riglit to daniaj^es ; Sliep. Touch. 272. (2) tiiat tlie lessee for lives had tiie (c) The lease for lives is also very parliamentary franchise (not ohtaiiied common in Ireland. iSee Furlong's by the lessee for years until 1832) ; Landlord and Tenant, bk. ii., ch. 4. and (.'}) that the lessee for lives had {(i) From the lease for lives giving an estate descendible free from debts. the lessee an estate of freehold, {!>) Freeman d. Vernon v. West, 2 whereas the lessee for years had no Wils. Kif). freehold, but only a chattel interest, (r) rnderhay v. Underhay, Cro. it resulted (1) that the lessee for Kliz. 2'.»(j. 240 Cu. Y. S. 6.] TKllM CHANTED (HABENDUM). *147 law as to leases in future, a very different rule of law pre- vails iu cases of limitations taking effect under the Statute of Uses, or as devises or trusts (c?). Ami now, by 8 & 9 Vict. c. 106, s. 2, " all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery." Construction of the grant for lives. — The grant of a lease for several lives of which one is not in existence at the date of the grant is good only for the lives which are in existence at such date (g). It was held by a Court of Appeal, in Coates v. Collins (/), that a covenant in a lease for lives, that the lease is good for the lives for which it is granted, does not warrant the subsistence of the lives. * Therefore, where the [*147] defendant assigned a lease for the lives of W., J., and H., and the survivors and survivor of them, and covenanted that the lease was " a good and valid lease " for such lives, and was " not forfeited, surrendered, or become void or void- able," and J. had died before the making of the assignment, the plaintiff failed to recover as for a breach of covenant. Dissolution on death of lessee. — At common law a lease for lives to the lessee only without naming a successor, entitled any person whatever, upon the death of the lessee, to enter upon the demised premises, as " general occupant," and to continue in possession till the last of the lives dropped (7i), but such a lease to the lessee, his heirs and assigns, enti- tled the heir to enter as " special occupant," and perhai)s also the executor (/). The 12th section of the Statute of Frauds made the estate pur autre vie devisable by will, and provided that it should be chargeable as assets either in the hands of the heir or executor, if no devise should be made. The present law is contained in s. 6 of the Wills Act, 1 Vict. (d) Rivis V. Watson, 5 M. & W. Exchequer Chamber was nnanimoiis, 255; Gilbertson v. Eichards, 4 H. & both on principle and on tlie author- N. 277; 5 Id. 453. ity of Basket v. Scot, Koll. Abr. vol. (e) Doe d. Pemberton v. Edwards, ii. p. 249. 1 M. & W. 553. (/;) Co. Litt. 41 b. (/) L. R., 7 Q. B. 144; 41 L. J., (i) See Piatt on Leases, vol. i. p. Q. B. 90; 26 L. T. 134. Lush, J., 689, and the cases there cited, dissented iu the court below. The 241 *148 THE LEASE. [Ch. V. S. 6. c. 26, wliicli, after giving an absolute disposing power by will and repealing s. 12 of the Statute of Frauds, provides that : " If no disposition by will shall be made of any estate pur autre vie of a freehold nature the same shall be chargeable in the hands of the heir, if it shall come to him by reason of special occupancy, as assets by descent, as in the case of freehold land in fee-simple ; and in case there shall be no special occupant of any estate pur autre vie, whether free- hold or customary freehold, tenant right, customary or copy- hold, or of any other tenure, and wdiether a corporeal or incorporeal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the exec- utor or administrator either by reason of a special occupancy or by A'irtue of this act, it shall be assets in his hands, and shall go and be applied and distributed in the same manner as the personal estate of the testator or intestate." Proof of death of cestui que vie. — It is of the essence of the estate pur autre vie that one of tlie lives should be in existence, and at common law the burden of proof of death lay upon the party seeking to take advantage of it, who would in all ordinary cases, unless the covenants should be very onerous, be the reversioner. Presumption of death after 7 years.' — To renuHly tliis incon- venience the statute 19 Car. 2, c. 6, was passed, wliich shifted the burden of proof in many cases by the enactment that if persons for whose lives estates have been granted shall remain beyond the seas, or elsewhere absent themselves in this realm by the space of seven years together, and no sufficient and evident proof be made of the lives of such persons, in any action for the recovery of the tenements, "the [*148] persons upon whose * lives the estate depended shall be accounted as naturally dead, and the judges before whom such action sliuU Ik; l)r()ught sliall direct the jury to give their verdict as if the person so remaining beyond the seas, or otherwise absenting himself, were dead." The 3rd section of the same act allows tlu; plaintiff in any snch action to challenge any juror tlu; griiatesL part of whose real estate " 242 Ch. V. S. G] TERM GRANTED (HABENDUM). *148 is held by lease or copy for lives, and the 4th section pro- vides for the rtnnstatenient, with damages against the lessor for mesne profits, of any lessee evicted by virtue of the act who shall afterwards be able to prove that the cestui que vie, whose death was presumed, was in fact alive. There is no legal j)resumption as to the time of the death of a cestui que vie (^) ; the fact of his having been alive or dead at any time during the seven years must be proved by the party relying on it (/), and it will be seen from 6 Ann. c. 18, s. 5, which will be presently referred to, that the lessor can recover mesne profits from a lessee holding over after the dropping of the last life. Where a lease for lives con- tained a covenant that the lessee would produce a cestui que vie, or make it appear, if he should be abroad, that he was livino- it was held that it was not enousfh for the lessee to depose to circumstances from which one jury might infer that the cestui que vie was living, and another not (wt). Production of cestui que vie. — A further and very stringent act in favour of lessors, but chiefly applicable only in the case of fraud, was passed in the reign of Queen Anne. This was 6 Ann. c. 18, whereby a lessor for lives upon affidavit made that he has cause to believe that the cestui que vie is dead, and that his death is concealed by any person, may, once a year, move the High Court for an order upon the person concealing the death to produce the cestui que vie to one or two persons named in the order. Upon a failure to obey such order, the court is "authorized and required" (n) to make a further order for the production of the cestui que vie before the court itself or before Commissioners to be appointed by the court (two of them upon the nomination of the party prosecuting the order) (o). Upon failure to comply with such further order, the cestui que vie is to be (Ic) Nepean v. Doe, 2 M. & W. 894 but is bound to make this order. See (in error) ; 5 B. & Ad. 86. re Isaac, 4 M. & C. 11. (/) lb. Holiiiaii V. Exton, Prec. Ch. (o) For instances of orders made 246. under this act, see re Lingen, 12 Sim. (m) Randle v. Long, 6 Ad. & E. 194 ; re Glossy, 2 Sni. & G. 46 ; re 218. Dennis, 8 W. E. 649; 7 Jur., N. S. (n) The court has no discretion, 230 ; re St. Jolm's Hospital, 18 L. T. 12 ; 16 W. R. 556. 243 *149 THE LEASE. [Ch. V. S. 6. taken to be dead, and the lessor is empowered to enter upon the demised premises. By s. 2 of the act, on affidavit that the cestui que vie "is or lately was at some certain place beyond the seas," the party jjrosecuting the order may send over persons to procure a personal view of him, and if such view cannot be had, to make a return to the Court to [*149] that effect, whereupon the lessor * may enter as if he were dead ; by s. 3 the lessee for lives may re-enter if after order made it should turn out that the cestui que vie was in fact alive, and b}' s. 4 if the lessee for lives prove that he has used all endeavours to produce the cestui que vie, and also that such cestui que vie is in fact alive, he may continue in possession. Lessee for lives holding over a trespasser. — The fifth sec- tion is a very important one, inasmuch as it constitutes a trespasser any lessee for lives holding over after the deter- mination of the last life, whetlker he knew of such determina- tion or not. The section is as follows : — " Every person who, as guardian or trustee for an}' infant, and every husbarid seised in right of his wife only, and every other person having any estate determinable upon any life or lives, who after the determination of such particular estates or interests, without the express consent of him, her, or them, who are or shall be next and immediately entitled upon and after the determination of such particular estates or interests, shall hold over and continue in possession of any manors, messuages, lands, tenements, or hereditaments, shall be and are hereby adjudged to be trespassers, and eveiy person or persons, his, her, and their executors or administrators, who are or sliall be entitled to any sucli manors, messuages, lands, tenements, and hereditaments, upon or after the determina- tion of such particular estates or interests, shall and may recover in damages against every such person or persons so holding over as aforcsuid, and against his, her, or their exec- utors or administrators tlu" full value of tlic jtrolits received (luring such wrongful possession iis aforesaid." Renewal. — Leases for lives freciuently contain a covenant for renewal. Tlie effect of such covenants is considere Jac. 258; Clayton's case, 5 Rep. 1. Q. B. 204 ; Bird v. Baker, 1 E. & E. (c.) Underwood v. Horwood, 10 Ves. 12. 209. (e) Co. Lit. 40 b. ; Styles v. War- (d) Shep. Touch. 108 ; Doe d. Cox die, 4 B. & C. 908. V. Day, 10 East, 427 ; Steele v. Mart, 1st, Wilcox V. W^ood, 9 Wend. .340, 348, 350; but the general rule in New York, as elsewhere, excludes the terminus a quo (per Savage, Cli. J.). This rule has been generally adopted in America whenever time is to be computed from the happening of any event. Cornell v. Moulton, 3 Denio (N. Y.) 12, 16 {per Bronson, Ch. J.); Sims v. Hampton, 1 S. & R. (Pa.) 411 ; Windsor v. China, 4 Greenl. (Me.) 298; Pease v. Norton, 6 Id. 229, 233; Brown v. Maine Bank, 11 Mass. 153 ; Snyder v. Warren, 2 Cow. (N. Y.) 518, 7s.r parte Dean, 2 Id. 005 ; Honian i\ Liswell, Id. 059 ; Sheets v. Selden's Les- see, 2 Wall. 177, 190; Henry v. Jones, 8 Mass. 453, 455 (promissory note); Avery v. Stewart, 2 Conn. 09 (promissory note) ; Rand v. Rand, 4 N. H. 207 ; Bigelow V. Willson, 1 Pick. (Mass.) 485, 489; State v. Jackson, 4 N. J. L. 323 (time after act) ; Pyle v. Maulding, 7 J. J. Marsh. (Ky.) 202 ; Williamson v. Farrow, 1 Bailey (S. C. Ct. of App.) GU ; contra, Priest v. Tarlton, 3 N. H. 93; Wheeler v. Bent, 4 Pick. (Mass.) 107. In Presbrey v. Williams, 15 Mass. 193, it was held that the Statute of Limitations bars suit brought Nov. 1, 1817, on new promise made Nov. 1, 1811, but this was disapproved of by Bronson, C. J., in Cornell v. Moulton, 9 Wend. (N. Y.) 12, 15, 10. In People v. Robertson, .39 Barb. (N. Y. Supreme Ct.) 9, it was held that a lease to first day of May would expire at midnight April 30th, but a lease to end May 1st would expire at noon that day. 247' *151 THE LEASE. [Ch. V. S. 6. prior lease be void in law (/) ; but where the limitation is uncertain, as a lease made the 10th day of October, to hold from the 20th day of November, without saying- what No- vember is meant, the lease is thereby vitiated, because the limitation is part of the agreement and the court cannot determine it, not knowing the terms of the contract (., it was held, that as to Whiteacre the term granted to C. commenced immediately ui)on the expiration of that granted to A., and was not to be deferred until tlie expira- tion of the demise to B. (i). Where a lease is thus made to (») Shop. Toucli. 272. 100; Smith r. Day, 2 M. & W. G84 ; (x) Id. Blatiliford, app., Cole, rcsp., 5 C. B., ((/) Goodright v. Richardson, 3 T. N. S. 514; Doe d. Agar v. Brown, 2 It. 403; Bac. Abr. tit. Leases (K.) ; E. & B. 331. Bro. Abr. tit. Leases, 71; Clarke v. (a) Co. Lit. 45 b; Wrotesley ?). Sydenham, Yelve. 85; S. C, 1 Brownl. Adams, Dyer, 177, pi. 35 ; Plowd. 198. & G. 130. (/') Windhani's case, 5 Co. R. 7, (?) 1 Roll. Abr. 849; Dyer, 201 b, Moor. 191; Cro, Eliz. 109; 2 Leon, pi. 28; Lord Paget's case, 1 Leon. Kl'i. 250 Ch. V. S.6.] TERM GRANTP:D (DURATION). *154 A., reciting a former one to B., and demising for a term of years to commence at the determination of B.'s lease, if in fact no such lease had been made to B., then A.'s term will commence at once (c) ; and the same if the lease be void (f?). But if there be such a former lease, and it be misrecited in a material part in the second, then the new lease can com- mence presently only in the enumeration of years, but not in interest until the expiration of the first lease (e). If A. seised of lands in fee grant to B. that, when B. shall pay to A. twenty shillings, fi-om thenceforth he shall hold the lands for twenty-one years, and afterwards B. pay the twenty shil- lings : in this case B. haS a good lease for twenty-one years from the date of the payment (/). If one make a lease to another for so many years as J. S. shall name, this at the beginning is uncertain ; but when J. S. has named the years (in the lifetime of the lessor) this ascertains the commence- ment and continuance of the lease accordingly : but if the lease had been made for so many years as the executors of the lessor should name, this could not be made good by any nomination (//). A lease made to another, until a child en ventre sa mere shall come to the age of twenty-one years, is not good as a lease for years but at will only Qh). (d) Duration of Terms for Years. What certainty is requisite generally. — The duration of leases for years ought to be ascertained either by the express limitation of the parties at the time of making, or by * a reference to some collateral act, which may with [*154] equal certainty measure the continuance thereof,^ (c) Bac. Abr. tit. Leases (L. 1). (/) Shep. Touch. 273; Co. Lit. 45 {d) Id. ; Co. Lit. 4(5 b. b ; '(> Co. R. 35 a ; 1 Roll. Abr. 840. (e) Bac. Abr. tit. Leases (L.. 1) ; (7) Bac. Abr. tit. Leases (L. 2) ; Co. Lit. 46 b. As to misrecital of Co. Lit. 45 b; 1 Leon. 8G; Plowd. 0, date, see Rowe v. Huntingdon, Vau05 ; (i) Bac. Abr. tit. Covenant (F.). Cannock v. Jones, 3 Exch. 233 ; Wood V. Copper Miners' Co., 7 C. B. 900. 2G0 Cu.V.S. 8.] EXrilESS COVENANTS AND AGKEEMENTS. *160 plied covenants and express covenants, namely, that the latter are to be taken more strictly (c). Joint or several. — In preparing covenants entered into with several persons, it should be made clear w^hether it is intended to be a separate covenant with each person, as well as a joint covenant with the whole : and whether a covenant be joint or several (when the words used admit of either construction) depends upon the words used, the subject- matter of the covenant, and the interest which passes there- by (d). If the words of the covenant are expressly and clearly joint, the covenant will be so secured, although the interest is several ; ^ and vice versa (e). If the words used admit of two constructions, and the interest of the cove- nantees is joint, the covenant will be construed as joint (/) : but if the interest of the covenantees is several, the covenant will be construed as several Qj^. Where A. by lease demised a house and land to B. and C. for a term of years at \Ql. per annum, with a covenant by them jointly and severally to pay taxes and rates, &c., but none to pay rent; and B. occupied the whole premises, and paid the rent for five years ; it was held that the demise being joint, the rent was payable by the two jointly (A). (r) Shubrick i'. Salmond, 3 Burr. Bradburne v. Botfield, 14 M. & W. 1689. 559. (c?) Slingsby's case, 5 Co. K. 18 b; (9) Withers v. Birchman, 3 B. & C. 3 Ch. R. 126 ; Duke of Northumber- 54 ; James v. Emery, 2 Moo. 195 ; 5 land V. Errington, 5 T. R. 522 ; South- Price, 529, 53? ; Servante v. James, cote V. Hoare, 3 Taunt. 89; Enys v. 10 B. & C. 410 ; Mills v. Ladbrooke, Donnithorne, 2 Burr. 1190. 7 M. & G. 218; Poole v. Hill, 6 M. & (e) Sorsbie v. Park, 12 M. & W. W. 835 ; Harcourt i-. Wyman, 3 E.xch. 146; Keightley r. Watson, 3 Exch. 817; but see Thompson v. Hakewill, 716; Lee v. Nixon, 1 A. & E. 201. 19 C. B., N. S. 713; 35 L. J., C. P. (/) Anderson r.Martindale,l East, 18; Wilkinson v. Hall, 1 Bing. N. C. 497 ; Foley v. Addenbrooke, 4 Q. B. 713. 197 ; Pugh V. Stringfield, 3 C. B., N. (/i) Rex v. Great Wakering, 5 B. & S. 2 ; Hopkinson v. Lee, 6 Q. B. 904 ; Ad. 971 ; see also Levy v. Sale, 37 L. T. 7r'). 1 Covenants of lessees' (tenants in common), if there are no words severing their liability, are joint, and the survivor is solely liable for rent. White v. Tyndall, 13 App. Cas. 263, reversing 20 L. R. Ir. 517, and restoring 18 L. R. Ir. 263. The covenant was "for themselves, their executors, administrators, and assigns, that they the said G. & A. or some, or one of them, their execu- tors, administrators and assigns" would pay, &c. 261 *161 THE LEASE. [Ch. V. S. 8. j|*161J * Lessee liable, notwithstanding assignment. — The lessee has both a privity of contract and a privity of estate ; and though he assigns, and thereby assigns the privity of estate, yet the privity of contract continues, and he is liable in covenant notwithstanding the assignment (e) : ^ but the assignee comes in only in privity of estate, and is therefore liable to the lessor and his assigns only on those covenants which run with the land and for those breaches which occur during the continuance of such privity of estate, and before he assigns over (Jc~).^ But he continues liable to his immediate assignor, his executors or administrators, upon any express covenant by him in the deed of assignment, for payment of the rent and performance of the covenants con- tained in the original lease (Z). If a covenant by two lessees be joint and several, it binds the executors of the deceased lessee, although the whole term, interest and benefit sur- vived to the other lessee (>«)• "What covenants void. — A covenant to do a thing' which (J) Eaton V. Jacques, 2 Doug. 4.55; Wake, 3 Camp. 394 ; Onslow i'. Cor- Chancellor v. Poole, 2 Doug. 7G4 ; rie, 2 Madd. 330. Orgill V. Keamshead, 4 Taunt. 642 ; (/) Harris v. Goodwyn, 2 M. & Gr. 1 Smith L. C. 77 (7th ed.). 405; 9 Dowl. 409 ; Burnett v. Lynch, {k) Harley v. King, 5 Tyr. 692; 5 B. & C. 589; Wolveridge v. Stew- Taylor V. Shum, 1 B. & P. 21 ; Le ard, 1 Cr. & Mee. 644. Keux y. Nash, 2 Stra. 1122; Odell v. (m) Enj's v. Dounithorne, 2 Burr. 1190, 1197. * The lessee continues liable after assignment upon all his express cove- nants. Walton r. Cronly, 14 AVend. (N. Y.) 63, 64 (per Sutherland, ,J.); Farmers' Bank v. Mut. Ass. Society, &c., 4 Leigh (Va.) 69, 84 (per Tucker, J.); Wall V. Hinds, 4 Gray (Mass.) 256 (liable tor rent and ta.xes) ; Babing- ton V. O'Connor, 20 L. R. Ir. 246 (liable for rent). Debt, however, does not lie against him for rent, but covenant, and the lessee has a remedy over against the assignee in assumpsit. Fletciier v. M'Farlane, 12 Mass. 4-]. 2 The assignee is liable to the lessor or his assignee directly upon all cove- nants which run with tlie land. Provost v. Caldcr, 2 Wend. (N. Y.) 517 (in tills case to lessor's devisee); Boyce v. Bakewell, 37 Mo. 492; Berry v. M'Mullen, 17 Serg. & 11. (Pa.) 84. His liability is terminated by assigning over except for breaches prior thereto. Childs v. Clark, 8 Barb. Ch. (N. Y.) 52, 60, 61 ; Farmers' Bank v. Mut. Asso. Society, &c., 4 Leigh (Va.) 69, 83, 84 ; Weidner v. Foster, 2 Penn. 23, 26 (per Rogers, J.) ; Wickersham v. Irwin, 14 I'a. St. 108. He is not liable for breaches occurring prior to taking assignment. Thomas i'. Council, 5 Pa. St. 13. 2G2 Cii. V. S. 8.] EXPKESS COVENANTS AND AGREEMENTS. *162 Upon the face of it appears to be prejudicial to the public interest, or otherwise contrary to law, is absolutely void (/t). For illegality. — On this principle it was held that neither the covenant to pay rent, nor any other covenant in a lease expressed to be made for the purpose of the premises being used to boil oil and tar, contrary to the provisions of a Building Act, could be enforced against the lessee (o). Covenant for impossibility, &c. — A covenant to do a thing which is impossible is void, if the impossibility exist at the time of making the covenant, but not otherwise (j3). A covenant in a lease to repair during the term does not take effect where the lessor does not execute the lease (g). A lessee is not liable for the breach of a covenant committed before the execution of the lease, but subsequently to the day from w hich by the habendum the term was - to com- mence (r). Where a covenant is founded on a conveyance of an estate which proves to be void, and no estate passes, the covenant is void also : thus, where the conveyance was " a grant of so much of a term as should be unexpired at the death of A.," and there was a covenant for quiet enjoy- ment, and a bond for performance; the * conveyance [*162] being void on account of the uncertainty of the time when the term was to commence and end, the covenants were adjudged to be void, as they depended on the estate (s) : but although this is the case with respect to all dependent covenants, it is otherwise of covenants which are indepen- dent (0- (n) Collins v. Blantern, 1 Smith man i'. Ambler, 8 Exch. 72 ; 22 L. J. L. C. 3G9 (7th ed.). Exch. 81. . (o) Gas Light Co, v. Turner, 5 (r) Shaw r. Kay, 1 Exch. 412 ; Jer- Bing. N. C. 600 ; 6 Id. 324. vis v. Tompkinson, 1 H. & N. 195, (;)) Shep. Touch. 1()3. See Hall u. 206; Bird v. Baker, 1 E. & E. 12 ; Wright, E. B. & E. 746 ; 27 L. J., Q. 28 L. J., Q. B. 7 ; Browne v. Burton, B. 345; Appleby v. Myers, L. R., 2 5 D. & L. 289; Steele r. Mart, 4 B. & C. P. 651 ; 36 L. J. C. P. 331 ; 16 L. C. 272. T. 609. (s) Capenhurst v. Capenhurst, Sir {q) Pitman v. Woodbury, 3 Exch. T. Raym. 27 ; Hayno v. Maltby, 3 T. 4 ; Linwood v. Squire, 5 Exch. 234 ; R. 438 ; Co. Lit. 456. Wheatley v. Boyd, 7 Exch. 20 ; Swat- (0 Northcote v. Underhill, 1 Salk. 199 ; 1 Ld. Raym. 380. 263 *162 THE LEASE. [Ch. V. S. 8. (b) Covenants^ whether " Running with Land.^^ Meaning of "Running with Land." — Covenants are either real or personal ; the former are such as are annexed to an estate, or are to be performed on it, and are said to " run with the land," so that he who has the one is subject to the other. A covenant is said to run with the land when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that land.^ A covenant is said to run with the reversion when either the liability to perform it, or the right to take advantage of it, passes to the assignee of that reversion (ji). Covenants which run with the land bind those who come in by act of law, such as the personal representatives of the assignee of a lessee, as well as those who come in by act of the parties (x) ; for the personal representatives of a lessee for years are his assigns (y, C. B. (jr) Esp. N. P. 290. 744 ; 1). & L. 342 ; Collins o. Crouch, (y) Hornidtre v. Wilson, 11 A. & E. 13 Q. B. 542. 1 Covenants real (rclatincc to things in esse at the time of demise) run with the land (or tiie reversion), and may be enforced hy (or against) as- sif^nees, whether named or not. Vcrplanck v. Wright, 23 Wend. (N. Y.) 506, 511 (per Nelson, Ch. J.); Hunt v. Danforth, 2 Curt. C. C. 592; Eeke v. Fetzer, 65 Wis. 55; In re Haisley, 44 U. C. 344, 347, 348; Berrie ?•. Woods, 12 Ont. 693 {per Boyd, C.) ; Norman v. Wells, 17 Wend. (N. Y.) 136 (they loere however named in this c-ase) ; Watertown v. Cowen, 4 Paige (N. Y.) 510, 514; Thompson v. K'ose, H Cow. rX. Y.) 2()6, 269 {per Sutherland, J.). 2 Covenants strictly personal are non-assignable. Landen v. Mc- Carthy, 45 Mo. 106. All example of a stric-tly jiersoiial covenant is the cove- nant of seizin in u warranty deed. Tliis is broken immediately, if at all, 264 Cii. V. S. 8.] EXPRESS COVENANTS. *163 All implied covenants run with the land (2), but with regard to express covenants some little uncertainty has prevailed. The general rules (ci) appear to be that (1) an assignee, whether of the reversion or the term, can, although not named in the covenant, avail himself of those covenants which touch and concern the thing demised ; (2) that of such covenants, those which concern something not in being at the time of the demise, bind the assignees if named, but otherwise not ; and (3) that covenants which do not con- cern the thing demised, but are personal between the cove- nanting parties, do not bind assignees in any case. * It seems that in equity the question whether [*163] assignees are bound turns on the doctrine of notice, so that by the effect of the Judicature Act it will, if the facts admit of it, be immaterial whether a particular cove- nant run with the land or not (S). This doctrine, which applies in cases arising out of the relation between vendor and purchaser in restrictive covenants only (c), may perhaps be held to apply to affirmative covenants also in cases arising out of the relation between landlord and tenant (fZ). What covenants run -writh the land. — The followingf cove- nants seem to run with the land, so as to bind the assignee, whether of the reversion or the term, although not named : * (z) As to implied covenants, see like cases discussed, 1 . Sm. L. C, 7th Sect. 9, post. ed. 94 (a.d. 1876). (a) See Spencer's case, 1 Sm. L. C. (c) Haywood v. Brunswick Perma- 60 (7th ed.); Smith L. & T. 388 j nent Benefit Building Society, L. R., Fawcett L. & T. 247. 8 Q. B. D. 403 — C. A. {b) See Tulk v. Moxhay, 2 Ph. 774 ; {d) See per Liudley, L. J., lb. Wilson V. Hart, L. R., 1 Ch. 463, and and does not pass to an assignee. It cannot run with the land, for there is no land for it to run with. See cases cited jwst ; note to Personal Covenants. Covenants not strictly personal (relating to things not in being, but after- ward to arise), though assignable, are personal unless an intention to bind assignees is expressed. Tallman v. Coffin, 4 N. Y. 134, 130; Thompson v. Rose, 8 Cow. (N. Y.) 266, 269; Appeal of Winton, 111 Pa. St. 387, 403; Hansen v. Meyer, 81 111. 321. 1 The following covenants have been held to run with the land, to wit : covenant to pay rent, Stewart v. L. I. R. R. Co., 102 N. Y. 001 ; Demarest v. Willard, 8 Cow. (N. Y.) 206; Allen i-. Culver, 3 Denio (N. Y.) 284; Willard V. Tallman, 2 Hill (N. Y.) ; Fletcher v. M'Farlane, 12 Mass. 43; Wall v. Hinds, 4 Gray (Mass.) 256, 206 {per Bigelow, J.) ; Boyce v. Bakewell, 37 Me. 265 *163 THE LEASE. [Ch. V. S. 8. — A covenant to pay rent (e) or taxes, or to repair (/), or to leave in repair (. Smith (N. Y.) 253, 255 (per Woodruff, J., unless made dependent) ; Hill r. Bishop, 2 Ala. 320 ; AVright v. Lattin, 38 III. 293 ; Lunn v. Gage, 37 Id. 19 ; 273 *168 THE LEASE. [Ch. V. S. 8. Conditional covenant to repair. — A covenant to keep a house in repair, from and after tlie lessor has repaired it, is conditional; and it cannot be assigned as a breach that it. was in good repair at the time of the demise, and that the lessee suffered it to decay ; for the lessor must repair before the lessee is liable (/>). Where the plaintiff let to the defendant a messuage, barn, stable, and buildings, and the defendant agreed to repair the said messuage, buildings, and premises, the same being first put into repair hy the 2)laintiff'; it was held, that the repair by the plaintiff was a condition precedent to the obligation on the defendant to keep in repair; that that condition precedent could not be divided: and that the plaintiff was not entitled to re- cover for the non-repair of any part of the premises with- out having first repaired the whole (/). Covenant for employment of particular person, &c. — On a lease of some coal mines, the lessees covenanted that the lessor should, when he thought fit, employ a fit and proper person to weigh the coals and keep the accounts, the person so weighing and keeping the accounts to be paid by the lessees ; but in case such person did not duly attend to his duties, the lessees were authorized to discharge him. It was held, that the appointment of a fit and proper person was a condition precedent to the liability of the lessees to pay the wages, and that tlierefore they were not bound to pay the wages though they had not dismissed him (o). An [*171] assignee of a term in * coal mines covenanted with tlie lessee that he would, so long as he should be in receipt of tlic; rents of the premises, ])ay to the lessors the rent payal)le by the original lease — and would keep the lessee liarndess indemnified a^jainst the rents and covenants of tlie lease: it was held, that the woi'ds ''so long as lie (^•) Friar v. Grey, r> Kxoli. r)84, (») Cannock i;. Jones, 3 Exch. 233; 597 ; 4 II. L. Cas. 5(55. 5 Id. 713; 3 II. L. Ca.s. 700. (/) (irey v. Friar, 15 Q. B. 901. (<>) Lawtou v. Sutton, U M. & \V. (ill) Doe d. Gardner u. Kennard, 12 795. Q. Ji. 214. 278 Ch. V. S. 8.] EXPKESS COVJiiXAXTS. *171 should be in the receipt of the rents " did not extend to the covenant to indemnify (p). A covenant in a farming lease provided that the tenant should consume and convert into manure, and spread on the premises, all the turnips, &c., grown thereon ; but tliat in case he should sell off any part thereof, which he was at liberty to do, then that he should for every ton of turnips, &c., so sold, off, bring back and spread thereon one ton of manure within three months after. In an action on this covenant the plaintiff set out the first part only, and assigned for breach that the defendant carried away fourteen acres of turnips, without converting the same into manure and spreading the same : it was held, that the covenant was an alternative one, and that the plaintiff should have negatived the bringing back, within the time limited, an equivalent in manure (9-). (d) Hoiv discharged. Before breach by deed. — Covenants cannot be discharged before breach otherwise than by deed; therefore a parol licence or agreement, dispensing with or changing the terms of such an obligation, could not, before the Judicature Act, be pleaded in bar to an action of covenant (r) ; and it does not seem that that act has made any difference. By acts of parliament. — With respect to the operation of acts of parliament in discharging the obligation of a cove- nant there is this difference ; viz. that where a man covenants not to do an act or thing which it was lawful to do, and an act of parliament is made afterwards and compels him to do it, the statute discharges the covenant. So, if a man cove- nant to do a thing which is lawful, and an act of parliament comes in and hinders liim from doing it, the covenant is dis- charged (s). But if a man covenant not to do a thing which (p) Crossfield i-. Morrison, 7 C. B. t'. Blakeway, 2 M. & G. 729, 752; 9 286. Dovvl. 846. (9) Richards v. Bluck, 6 C. B. 437 ; (.9) Brewster v. Kitcliell, 1 Salk. 7 D. & L. .325. 198 ; Doe d. Marquis of Anglesea v. (r) Littler v. Holland, 3 T. B. 090; Rugeley, 6 Q. B. 107, 114; Brown v. Thompson v. Brown, 7 Taunt. 656 ; Mayor, &c., of London, 9 C. B., N. S. Sellers v. Bickford, 1 Moo. 460 ; Plar- 726 ; 13 Id. 828 ; Bac. Abr. tit. Con- ris V. Goodwin, 2 M. & G. 405; West ditions (Q. 2) ; Com. Dig. tit. Condi- tion (L. 1). 279 *172 THE LEASE. [Ch. V. S. 9. at the time was unlawful, and a subsequent statute makes the action lawful, such statute does not discharge the cove- nant (£) : and if the covenant be to do that which is after- wards made unlawful in part only, it must be performed so far as it continues lawful (w). If there be a covenant [*172] to do a thing which * is unlawful by statute, the covenant will not be made lawful by the repeal of the statute, because the covenant was bad ab initio ; although it would be otherwise, if the covenant had been originally lawful, but had been made unlawful by a statute wliich was itself afterwards repealed (a:). Discharge of covenant not to build, &c. — In accordance with these principles, it has been held that a covenant to build a workhouse on the land demised was discharged by the opera- tion of the Poor Law Amendment Act, 1834 (^z) ; and a covenant not to assign without licence (z), and a covenant not to permit assigns to build (a) by a compulsoiy assign- ment to a company under the Lands Clauses Consolidation Act, 1845, Lessee of tithes. — But a lessee of tithes is liable on his covenant to pay rent, notwithstanding the tithes have been commuted for a rent charge, his remedy being by surrender of his lease, under the 88th section of the Tithe Commuta- tion Act (6 & 7 Will. 4, c. 71) (6). Sect. 9. — Implied Covenants and Agreements. (a) Generally. Covenants in law, when implied. — An iinplied covenant OF covenant in law is one which the law intends and implies from the nature of the transaction, although not expressed by words in the deed. " A covenant in law, properly speak (0 Brovvstor v. Kitcliell, 1 Salk. (s) Slipper v. Tottenham il- Hanip- 198. stead Junction R. Co., L. ]{., 4 Eq. (u) 2 Eq. Ca. Abr. 2G. 112 ; .'](! L. J., Ch. 841. (ir) Jacques v. Witliy, 1 II. Rlac. («) Haily r. I)e Crespi^ny, L. R., 4 05. Q. 15. 180 ; .18 L. J., Q. B. 98. (y) Doe d. An>,'lesea (Lord) i-. (b) Tasker v. Uullman, 3 Exch. Rugeley, (Churcinvanleiis,) G Q. 15. 351. 107. 280 Ch. V. S. 9.] IMrLIED COVENANTS AND AGREEMENTS. *173 iiig, is an agreement which the hxw infers or implies from the use of certain words having a known legal operation in the creation of an estate ; so that, after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by these words already created : as if a man by deed demise lands for years, covenant lies upon the word ' demise,' which imports or makes a covenant in law for quiet enjoyment" (c). Upon a demise — That the word " demise " in a lease for years imports and makes a covenant in law for quiet enjoy- ment, at least during the continuance of the estate out of which the lease is granted, is clear from all the authorities (t?).i By 8 & 9 Vict. c. 106, s. 4, the word » give " or the word "grant" in *a deed executed after the [*173] 1st of October, 1845, "shall not imply any cove- nant in law in respect of any tenements or hereditaments, except so ^ar as the word ' give ' or the word ' grant ' may, by force of any act of parliament, imply a covenant " (e). Where a renewed lease of a mill was granted to a bleacher for the purpose of carr3dng on therein his business, parol evidence was held admissible to explain the special circum- (c) Williams v. Burrell, 1 C. B. Ma}', 9 Ves. .325. And see the cases 429. as to " Quiet Enjoyment " further dis- (d) Adams v. Gibney, 6 Bing. G56, cussed, post, Chap. XVII., Sect. 8. 666; Nokes' case, 4 Co. R. 80 b; (e) As in conveyances to railway Holder v. Taylor, Hob. 12 ; Eraser v. companies, &c. Skey, 2 Chit. R. 646; Iggulden v. 1 Quiet enjoyment. —A covenant for quiet enjoyment in a lease for years is implied in tlie words, " give," " grant," and " demise." Stott v. Ruth- erford, 92 U. S. 107, 109 ; Gr-annis v. Clark, 8 Cow. ?,(} ; Barney v. Keith, 4 Wend. (N. Y.) 502 ; Young v. Hargrave's Admr., 7 Ohio, 394, 400 (per Lane, J.) ; Cunningham v. Pattee, 99 Mass. 248, 251 ; Gardner v. Keteltas, 3 Hill (N. Y.) 330, 332 (per Nelson, Ch. J.) ; Dexter v. Manley, 4 Cush. (Mass.) 14, 24 ; Erost v. Raymond, 2 Caines (N. Y.) 188, 194 (per Kent, Ch. J.). It has sometimes been held that the words " grant " and " demise " are not covenants of general warranty in leases for life or other estates of inheritance. Frost V. Raymond, 2 Caines (N. Y.) 188, 194 ; Young v. Hargrave's Admr., 7 Ohio, 394, 400 ; Barney v. Keith, 4 Wend. (N. Y.) 502 ; and generally it may be said that a covenant of quiet enjoyment is iinplied in a lease, Mack i;. Patchin, 42 N. Y. 167 ; Mayor of N. Y. v. Mabie, 3 Kern. (N. Y.) 160j 11 Paige (N. Y.) 606; Tone v. Brace, 8 Id. 597 ; Vernam v. Smith, 15 N. Y. 328 ; Graves v. Berdan, 26 Id. 498. 281 *1T3 THE LEASE. [Ch. V. S. 9. stances under which the lease was granted, and from which an implied grant to use the stream for the purpose of the business might be inferred (/). Wlien an implied covenant ceases. — A covenant in law in a demise ceases with the estate of the lessor, and does not necessarily continue during the whole term expressed to be granted. Therefore, if a tenant for life demise by indenture for fifteen jears, without any express covenant for quiet enjoyment, upon his death during the term the covenant in law implied from the word " demise " will cease (^). But an express covenant, or one to be implied by construction of words used in the deed by way of warranty or contract, would continue in force to the end of the term expressed to be granted, and not merely during the actual continuance of such term (A). A covenant in law goes to the assignee of the term, and he has advantage of it during the actual con- tinuance of the term (z). But the executors or administra- tors of the lessor are not liable where the teim ceases on liis death, and the lessee is subsequently evicted {k}. (b) On Letting Furnished Hoiise. No implied covenant that premises fit for occupation. — In general, there is no implied covenant by the lessor of a house or of land that it is reasonably fit for habitation, occuj^ation, or cultivation (l) ; ^ nor that the house will endure during C/) Hall V. Lund, 1 H. & C. 07G; (/) Bac. Abr. tit. Covenant (E. 5) ; 32 L.. J., Ex. 113. Vyvyan i'. Artlnir, 1 H. & C. 410. (ig) Swan v. Stransham, Dyer, 257 {k) See note (v), supra. a; 1 Leon. 179; Owen, 105; s. c, (/) Hart r. Windsor, 12 M. W. 08; cited 6 Bing. 006; Adams v. Gibney, Sutton v. TiMiii)k', Id. 52, overriding 6 Bing. 050 ; Tenfold v. Abbott, o2 nisi prnis decisions in Kdwards i: Eth- L. J., Q. B. 07. erington, Ky. & U. 208 ; 7 D. & R. (h) Williams v. Burroll, 1 C. B. 117; Collins r. Barrow, 1 Moo. & R. 402; Bragg v. Wiseman, Brownlow 112; Salisbury v. Marshal, 4 C. & P. & G. 22. 05. ' Covenants of quality, &c. ; not implied. — Tlicre is no inii)lied cove- nant that an unfurnished house or other tenement is reasonably fit for occu- pation, Bowe V. Ilnnking, l.'J5 Mass. .380 (a dwelling-house) ; Foster v. Peyser, 9 Cush. (Mass.) 242 (dwelling-house) ; Dutton v. Gerrish, 9 Id. 89, 93, 94 (dry goods warehouse) ; Naumberg v. Young, 44 N. .T. L. 331 , 344, 345 ( jw)- Depue, J.); Gillis r. Morrison, 22 N. B. 207 (dwelling-house); Welles i-. Castles, 3 282 Ch.V.S. 9.] IMrLIED COVENANTS AND AGREEMENTS. *173 the term ; ^ nor that the lessor will do any repairs whatever (ill)? And if the landlord is bound to do repairs, there is (m) Ardon v. Pullen, 10 M. & W. Keates v. Earl Cadogan, 10 C. B. 321; Gott V. Gandy, 2 E. & B. 845; 591. Gray (Mass.) 323; nor that any premises are suitable for the special pur- poses for which they were leased. Howard i". Doolittle, 3 Duer (N. Y.) 4G4, 474 {per Duer, J.) ; Jaffe v. Harteau, 56 N. Y. 398; Cleves v. Willoughby, 7 Hill (N. Y.) 83 {per Beardsley, J.) ; Hazlett v. Powell, 30 Pa. St. 293, 298; O'Brien i'. Capwell, 59 Barb. (N. Y.) 497 ; Robbins v. Mount, 4 llob't. (N. Y.) 553, 4'61 ; Royce v. Guggenheim, 106 Mass. 201, 202 {per Gray, J.) ; Loupe v. Wood, 51 Cal. 586 ; Scott v. Simons, 54 N. H. 426 ; Wilkinson v. Clauson, 29 Minn. 91; Edwards i-. N. Y. & Harlem R. R. Co., 98 N. Y. 245, 247 {per Earl, J.). In coal-mining and iron-mining leases there are no implied covenants of the existence of ore. Harlan v. Lehigli Coal & Navigation Co., 35 Pa. St. 287 ; Clark V. Midland Blast Furnace Co., 21 Mo. App. 58. So far is the principle carried that a lessee must pay rent, and has no remedy in damages, though the premises be uninliabitable, Fislier v. Lightliall, \ Mack. (D. C.) 82 ; Fos- ter V. Peyser, 9 Cush. (Mass.) 242 ; or dangerous {per Depue, J., in JS'aumberg V. Young, 44 N. J. L. 331, 344, 345). A false expression representing the premises to be in good condition, if not knowingly false, will not (ordinarily) amount to a covenant of warranty. The statement tliat the sewer was in excellent condition, though in fact in bad condition, Wilkinson v. Clauson, 29 Minn. 91, does not amount to a warranty. Where, in a lease of a warehouse, lessor had said " he would warrant it would stand if filled with pig lead," and it broke down on account of being insecurely built, the court held the lessee had no remedy. Where the false representation is fraudulent or knowingly false, the rule is otherwise {per Field, J., in Bovve v. Hunking, 135 Mass. 380, 384). The les- sor will be liable if he conceal knowledge that premises are in dangerous con- dition {per Field, J., supra'), as that house is infected with small-pox. Minor V. Sharon, 112 Mass. 477 ; Cesar i'. Karutz, 60 N. Y. 229. In Bowe v. Hunk- ing, supra, a lessor was held not liable for injuries caused by giving way of the tread of stair not known by him to be unsafe. In Jaffe v. Harteau, 56 N. Y. 398, damages were lield not recoverable for injuries caused by the explo- sion of a kitchen boiler, and in O'Brien v. Capwell, 59 Barb. (N. Y.) 497, for injuries caused by the giving away of a piazza railing. 1 There is ordinarily no implied covenant that a building will endure dur- ing the term, Branger v. Manciet, 30 Cal. 624 ; but total destruction of the demised property (as in case of lease of apartments where building is burned) terminates the tenancy, Stockwell v. Hunter, 11 Met. (Mas.*.) 448; and dis- charges the tenant from his covenant to pay rent. Graves v. Berdan, 26 N. Y. 498. See post, note 3. - Covenants of lessor to repair not implied, except ■when. — There is no implied coven.'Uit in lease of an entire building on lessor's part to repair. Weinsteine v. Harrison, 66 Tex. 546; Rogan v. Dookery, 23 Mo. App. 313 ; Hughes V. Vanstone, 24 Mo. App. 637, 639 ; Vai v. Weld, 17 Mo. 232; Kahn V. Love, 3 Or. 206 ; Mumford -. Brown, 6 Cow. (N. Y.) 475 ; Howard v. Doo- little, 3 Duer (N. Y.) 464 ; Brewster v. Miller, 33 Cal. 341 ; Sherwood v. 283 *174 THE LEASE, [Ch. V. S. 9. no implied condition that if not done the tenant may quit (>i) ; that should be the subject of an express stipulation (o). Furnished house. — There is, however, an important [*174] exception to the general rule. In * letting a fur- nished house, the lessor impliedly promises that it is fit for occupation. So it was held in Smith v. Marrable (/'), where a tenant for five or six weeks was held justified in quitting without notice on the ground of the house being infested with bugs ; and this case, although shortly after- wards doubted by more than one member of the same court which decided it ((7), was, in 1877, affirmed in Wilson v. Finch-Hatton (r), where its princij)le was held applicable to (n) Surplice ;■. Farnsworth, 7 M. & Finch-Hatton was applied by Field, J., G. 576; 8 Scott, N. R. 307. to a case of infection by measles. (o) As in Furnivall v. Grove, 8 C. (; Smith ,: Darby, 42 L. .1.. KIO; Smith r. Mayor, &c. of Harwich, Q. B. 140; Eadon »•. Jeffccxrk, 42 L. 2 C. B., N. S. O'A ; Sharp v. Water- .1., Ex. W ; in the last of which cases house, 7 E. & B. 816. it was held that wlieii tlie owner of 2H8 Ch. V. S. 10.] OF EXCEPTIONS AND RESERVATIONS. *17T * A recital in a deed may amount to a covenant [*177] where it ap[)ears to be the intention of the parties that it should do so (/c), and upon such implied covenant an action of covenant may be maintained (I}. Sect. 10. — Of Uxcejjtioiis and Reservations. Distinction between exception and reservation. — An excep- tion relates to some existing component part of the thing demised, vs^hich is capable of being severed or distinguished from it:i but a reservation is properly of some right or {k) Lay v. Mottram, 19 C. B., N. S. & J. 105 ; Saltoun v. Houstoun, 1 Bing. 479. 4.33 ; Farrall v. Hilditch, 5 C. B., N. (/) Sampson v. Easterby, 9 B. & C. S. 840. 505 ; s. c, in error, 6 Bing. 644 ; 1 C. 1 Exceptions. — Must be part of thing granted, must be of something that already exists, and something that can be severed from the thing demised {per McCoun, J., in Maynard v. Maynard, 4 Edw. Ch. (N. Y.) 711, 714) ; Doe d. Bennet v. Murdock, 4 Pugs. & Bur. (N. B.) 317 (east half of land demised, the exception being introduced by the words "reserving") ; Fort r. Brown, 46 Barb. (N. Y.) 366, 370 (chamber and bedroom) ; Elwes v. Brigg Gas Co., 33 Ch, D. 662, 570 {per Chitty, J., "all mines 'and minerals, and all water courses," &c.) ; Jackson v. Lawrence, 11 Johns. (N. Y.) 191 (mill's seats). Construction of exceptions; form, &c. — The following clause consti- tutes an exception, viz. : " saving and reserving, nevertheless, for his own use the coal contained in said price " with ingress and egress, &c. Whitaker v. Brown, 46 Penn. St. 197. In Baker v. McDowell, 3 W. & S. (Pa.) 358, 360, a provision " excepting and reserving the one half of all iron ore," &c., was evidently considered an exception, because it was " parcel of the soil," though Gibson, C. J., speaks of it as a reservation. Exceptions are frequently introduced by the word " reserving." In Shoen- berger v. Lyon, 7 W. & S. 184, 194, there was a clause reserving iron ore held void because m large as the grant ; and Gibson, C. J., says : V A reservation being an exception out of the thing granted, keeps the part reserved from passing," &c. This language, of course, could only apply to an exception. In Whitaker v. Brown, 46 Pa. St. 197, 198, a clause saving and reserving coal, in a parcel of land with free ingress and egress, was held to constitute an exception. In Bush V. Coles, 12 Mod. 24, the clause, "excepting two rooms and free passage, ingress, egress, and regress to and from them," was held to include both an exception and a reservation. It was an exception of the rooms and a reservation of the passage-way. In Case v. Haight, 3 Wend. (N. Y.) 632, 635, 636, where the owner of the bed of a stream and of one bank conveyed to the owner of the otlier bank half the bed of tlie stream, reserving the right to build dam on both sides, it was held 289 *177 THE LEASE. • [Ch. Y. S. 10. not to be a good exception, but that it might be sustained under an implied covenant. In Maynard v. Maynard, 4 Edw. Ch, (N. Y.) 711, 714, 715, the following clause, "e.xcepting and reservnig to my three daugliters, H., E., & R., a right of living on the said before-mentioned premises as heretofore, so long as they shall respectively remain single," was held to constitute neither an exception nor a reservation, but the court held that it might be enforced under the statute. It was not an exception because it was not a part of thing demised, nor a res- ervation because not in favor of the grantor. Exceptions are to be construed most strongly against the grantor. In Prov- ost V. Calder, 2 Wend. (N. Y.) 517, 524, a stream of water was excepted; but court held the exception limited to the special purposes for which it was intended to be used, Jackson c. Gardner, 8 Johns. (N. Y.) 394, 406. Exceptions which are indefinite are void. For example : a covenant " to let the lessor have what land he and his brothers might want for cultivation" cannot be enforced in favor of any one. Chipman v. Emeric, 5 Cal. 49, 51. An exception, otherwise void, for uncertainty may sometimes be made cer- tain by subsequent acts of parties. Thompson v. Gregory, 4 Jolms. (N. Y.) 81. If grantor except the streams of water with the right of erecting mill dams and all such parts of the land as sliall be overflowed, for the use of the mill, the exception is inoperative until the mills and dams are built. Provost V. Calder, 2 Wend. (N. Y.) 517, 524, 545. In Noble v. Bosworth, 19 Pick. (IMass.) 314, it was held that a parol agree- ment to except fixtures could not control tiie instrument in writing. Grooving crops. — The ordinary rule is that a deed of land without reserve passes the growing crops, Crews v. Pendleton, 1 Leigh (Va.) 297 ; Steele v. Farber, 37 Mo. 71 ; Baird v. Brown, 28 La. An. 842 ; or a devise, Pratte v. CofTman's Ex'r, 27 Mo. 424. See ante, Chap. V., sec. 5, notes. It has been held in some cases that growing crops may be excepted or reserved by parol, even though the lease or deed is in writing, Younians v. Caldwell, 4 Ohio St. 71; Baker v. Jordan, 3 Id. 438; because thereby con- verted into personalty, and a distinction has been made between cases where the crops were to be immediately severed, and cases where they were to remain indefinitely, Mcllvaine v. Harris, 20 Mo. 457. There are other cases in which it has been lield that parol reservations are repugnant to the deed. Brown v. Tiiurston, 56 Me. 126 ; Pattison v. Hull, 9 Cow. (N. Y.) 747, 754 ; Austin v. Sawyer, Id. 39 (though where parties exclianged farms orally, reserving each his growing crops, it was held tliat the crops did not pass by the deeds). It is established by the weight of authority, that a prior oral transfer of such crops as are fructus industriales, whether mature or immature, will pass title to them as against subsequent deed. See ante. Crops mny be reserved by a clause in the lease, Jordan v. Staples, 57 Me. 352; Smith v. Atkins, 18 Vt. 461, 462, 464,465; and also their use maybe limited, as that hay shall be fed out on place, Ileald v. Build Ins. Co., Ill Mass. 38; Potter r. Cunningham, 34 Me. 192; Coe v. Wilson, 46 Id. 314; Lewis V. Lyman, 22 Pick. (Mass.) 437. A simple stipulation that lessor shall furnish sufl^cient stock to eat up the hay, does not, it seems, prevent the hay from being liable to attachment as proj)erty'of lessee. Turner r. Bachelder, 17 Me. 257. It has been held that a lessor cannot reserve the hay to be cut in a lease at will so that lessee's creditors cannot attach it. Bailey v. Fille- brown, 9 Me. 12; Buttcrfield i-. Baker, 5 Pick. (Mass.) 522. 290 Ch. V. S. 10.] OF EXCEPTIONS AND RESERVATIONS. *177 profit, to arise from the subject of the demise, which had previously no separate existence (m).^ A right of way reserved to the lessor by the lease, over the lands demised, is not strictly an exception or a reservation, being neither parcel of the thing demised nor issuing out of it, but is in strictness of law an easement newly created by way of grant from the lessee (w).^ But where a lease was made of lands, except and always reserved out of the demise unto the lessor all timber trees, &c., and also except and reserved all royal- ties whatsoever to the premises belonging or in anywise appertaining, it was held, that this was an exception or reservation, and was not pleadable as a grant (o). Exception usually construed in favour of lessee. — An excep- tion, being the act and words of the lessor, is usually taken strictly against him (p). But where^ a lease contained an exception in favour of the lessor of the mines and quarries under the demised property, with full power to win and (m) 4 Jarm. Free. 815 (8rd ed.). (o) Pannell i-. Mill, 3 C. B. 625. (n) Durham and Sunderland R. Co. (/>) Shep. Touch. 77. V. Walker, 2 Q. B. 940. 1 Reservations. — "A reservation is always of something issuing or com- ing out of the thing granted, and not a part of the thing itself " {per Johnson, J., in Bridger v. Pierson, 1 Lans. (N. Y.) 481, 483). A reservation cannot be made in favor of any one but the grantor. Mit- cliell V. Cantrill, 37 Ch. D. 5H. A reservation of right to obstruct ancient lights, by building on adjoining lot does not prevent lessee from acquiring prescriptive right against lessee of adjoining close. Ives v. Van Auken, 34 Barb. (N. Y.) 50(5. Reservation of " a privilege in a well for the lots owned by " other parties is void. Borst v. Empie, 5 N. Y. 33, 38 {per McCoun, J.) ; Jackson v. Swart, 20 Johns. (N. Y.) 85, 87 (though in this case the reserva- tion was enforcible as a covenant to stand seized, &c.). A lessor may reserve a lien upon demised machinery. Metcalfe v. Fos- dick, 23 Ohio St. 114. A reservation of an option to take bricks to be made at demised brick yard, in lieu of rent, does not pass title to the brick until possession is taken. Wait Appt., 7 Pick. (Mass.) 100. 2 Regrants of easements, &c. — Burr v. ]Mills, 21 Wend. (N. Y.) 290 293, 294 (riglit to How granted land was reserved or regranted to grantor). Atkins II. Bordman, 2 Met. (Mass.) 457 (a right of way). A right of way seems more properly a regrant than an exception or reser- vation. Lord Dynevor v. Tennant, 13 App. Cas. 279, affmng. 33 Ch. D. 420. Provision that nothing in lease should prevent lessors, " their heirs or assigns," from using the land demised, or granting waj' leaves over it, operates as a covenant to them as owners of the reversion of the demised premises, not as owners of the adjoining premises. 291 *178 THE LEASE. [Ch. V. S. 10. work, and also with free way-leave and passage to, from, and along the same ; and the lessor covenanted in using the excepted rights to do as little damage to the soil as possible : it was held, that the lessor was entitled to the absolute use of an underground right of way and not merely to a right restricted to the purpose of working the mines under the demised premises ; but that he was not entitled so to work the reserved mines as to let down the surface (g-). Where a railway company excepted and reserved out of a demise of land a patent slip therein, and the machinery connected therewith, with free access thereto " for themselves, their successors and assigns, officers, servants, and workmen : " it was held that a licensee of the company might justify using the slip (/•). It has been held, too, in a suit for spe- [*178] cific performance of an * agreement for a lease, where a rector agreed to let a farm, except thirty-seven acres (not saying which), that the rector had the right to select which thirtj'-seven acres should not be included in the lease (s). What things must concur in an exception. — " In every good exception," it is said in Sheppard's Touchstone, " these things must always concur : 1, the exception must be by apt words ' saving and excepting,' or the like (?) : 2, it must be a part of the thinor demised, and not of some other things : 3, it must be only part of the thing, and not all : 4, it must be such a thing as is severable from the premises demised, and not of an inseparable incident : 5, it must be of such a thing as he who doth accept may have, and which properly belongs to him : 6, it must be certainly or sufficiently described and set down " (m). If a man be possessed of a new house and an old house, and make a lease with an excep'tion of the new house for the use of the lessor when he pleases to reside there, and at other times for the use of the lessee, the new house is well (7) Proud V. Bate8, 34 L. J., Ch. Sed quwre ; see Dann i;. Spurrier, 3 Ji. 406; 11 Jur., N. S. 441. & T. 300. (r) Mitcalfe v. Westaway, 17 C B., (/) Co. Lit. 47a. N. S. 658; 34 L. J., C. P. 114. (m) Sliep. Touch. (7th ed.) by (s) Jenkins v. Green, 27 Beav. 437 ; Preston, p. 78 ; Dorrell v. Collins, Cro. 28 L. J., Ch. 817, per Uomilly, M. U. Eliz. 0. 292 Ch, V. S. 10.] OF EXCEPTIONS AND RESERVATIONS. *179 excepted ; and such exception is not avoided by the words " at all times to be used by the lessee, when the lessor doth not dwell there ; " for that sentence doth not enure as an ex- ception out of an exception (which sets the matter at large), but only as a declaration of the lessor's intention in making the exception ; — the latter words, however, make the lessee tenant at will (x^. So, if a man lease his houses, excepting his new house, during the term, this exception is good : but if he except it during life, it is void ; for the words " during life " qualify the exception, and show his intent that the house shall not be excepted during the whole term, and so it is void. Exception of trees. — A clause in a lease purporting to reserve underwoods and underground produce, enures not as a reservation, but as an exception (//). A lease of lands excepted all timber, timber trees and other trees, &c., bushes and thorns, other than such bushes and thorns as should be necessary for the repairs of the fences , the lessee covenanted to keep fences in repair, and the lessor covenanted to find and provide, if growing on the premises, rough timber, stakes and bushes : it was held, that the provision as to bushes and thorns necessary for repairs was not an exception out of an exception, but that all trees, bushes and thorns were excepted out of the demise, whether part of a fence or not, or whether necessary for repairs or not (z). An exception of "all the wood" will be an exception of the soil whereon the wood grows (a). In like manner, if all the underwood and copse would be * excepted, the land will also [*179] be excepted, unless it clearly appear that it was merely the intention of the parties to except only the wood itself (6). But where " timber trees " are excepted, the soil in which they grow will not be covered by the exception (<;), nor will it where a tenement described as " all timber trees, wood, underwood, &c.," are excepted (d~). It will be usually (r) Oudlip V. Eundall, 3 Salk. 156. (6) Whistler v. Paslow, supra ; Pin- (^) Doe d. Douglas v. Lock, 2 A. comb v. Thomas, Cro. Jac. 624. & E. 705. (c) Whistler v. Paslow, Cro. Jac. (z) Jenney v. Brook, G Q. B. 323. 487. (a) Ive V. Sams, Cro. Eliz. 521; (vhich can be got from underneath the surface of the earth for the pur- pose of profit, unless there be something in the context or in the nature of the transaction between the parties to give it a more limited meaning" (^). Right to take brick-earth. — It seems that a building-lessee, notwithstanding a reservation of minerals so framed as to include brick-earth, may dig foundations and convert the brick-earth for the purpose of building, but for the purpose of building only, and not for the purpose of carrying on the trade of brick-making (r). Exception of water. — Where there was a lease of certain lands, together with all houses, water-courses, &c., excepting a " water-course flowing or descending from " a certain spot, through a meadow, it was held in the particular case to be an exception of the water itself, not of the channel through (/) Newton v. Wilmott, 8 M. & W. 373 ; 32 W. R. 40, affirming decisions 711. below, 21 Ch. D. 18. (m) Mieklethwait v. Winter, 6 Ex. (p) Jeffryes i'. Evans, 34 L. J., C. 644; 20 L. J., Ex. 313. P. 261 ; 19 C. B., N. S. 246. (n) Cardigan v. Armitage, 2 B. & C. (q) Hext v. Gill, L. R., 7 Ch. 699. 197. (r) Robinson v. Milne, 53 L. J., («) Tucker v. Linger, L. R., 8 App. Ch. 1070, per North, J. Cas, 688; 52 L. J., Ch. 941 ; 49 L. T. 295 *181 THE LEASE. [Cn. V. S. 11. which it flowed (s). Where there was a demise of a mill and a stream of water, except so much of the water as should be sufficient for the supply of persons whom the lessor had alread}" contracted with or thereafter should contract to supply, provided that such a quantity should be left as should be sufficient to supply the mill for twelve hours a day : it was held, that this was not an absolute undertak- ing to supply water to work the mill twelve hours a day, but that it was a demise of the mill as the water was flowing at the time of the demise (f). Sect. 11. — Provisoes mid Conditions. Nature of conditions. — • The terms " proviso " and " condi- tion " are synonymous, and signify some quality annexed to a real estate, by virtue of which it may be defeated, enlarged or created upon an uncertain event. Such qualities annexed to personal contracts and agreements are generally [*181] called * conditions (m). A proviso or condition of re-entry may be inserted in an agreement for a lease not under seal (a;). It will even form part of a new implied tenancy from year to year upon the terms of a previous lease or agreement (?/), and could be taken advantage of in case of entry and payment of rent upon the ordinary agree- ment for a lease. Conditions precedent or subsequent. — Conditions are either precedent or subsequent.^ Where a condition must be per- (s) Doe ) Crawley v. Price, L. R., 10 Q. (m) Doe d. Gardner v. Kennard, 12 B. 302 ; 33 L. T. 203 ; 23 W. R. 874. Q. B. 244. {q) Brooks v. Drysdale, L. R., 3 C. (n) Doe d. Henniker v. Watt, 8 B. P. D. 52 ; 37 L. T. 467 ; see ante, 121 & C. 308. (;«). 299 *183 THE LEASE. [Ch. V. S. 12. run with the land, nor with the reversion ; and an assignee of the lessor cannot sue for any breach of it (r). [*183] *Sect. 12. — Schedules, Indorsements^ ^c. Schedule of fixtures, furniture, &c. — When a house is let, together with fixtures, furniture or other articles therein, it is usual to make a schedule or inventory of them, with a covenant or promise from the lessee to re-deliver them at the end of a term. Such covenant or promise Avill give the landlord a better remedy (with clearer evidence) than he would otherwise have (s). The schedule or inventory is generally written at the foot or end of the lease, or it is indorsed thereon, or annexed thereto. When schedule not annexed. • — Sometimes by oversight or mistake a schedule referred to in a deed as annexed thereto is not in fact annexed when the deed is executed. In such case the deed will operate and take effect, so far as n.ay be, without the assistance of the schedule (J^. But sometimes it is insensible and inoperative as to part without the aid of the schedule (?(). How articles describe. — The articles comprised in the schedule should be specified in such a manner as to prevent all doubt as to what was intended to be included (x). When they are numerous and comprise items of small value, the description of the property should be general enough to include all the items, after which may be added "the prin- cipal articles whereof are particularly enumerated and de- scribed in the schedule hereunder written, or hereunto annexed," or to that effect (?/). But sometimes the sched- ule may be referred to in such a manner as to exclude any- (r) Stevens ?-. Copp, L. K., 4 Ex. (.r) Wood r.Rowcliffo,() Exch. 407; 20; and see 102, ante. Cort v. Sagar, 3 H. & N. ;}?(); Ilutch- (s) Dampierw. I'ole, 4 Exch. 678. inson v. Kay, 23 Beav. 418; cited 3 (0 Dyer r. Green, 1 Exeh. 71; H. & N. 372; Baker v. Kidiardson, Dames v. Heath, 3 C B. 938; Dam- W. K. 003; Walsh r. Trevanion, 16 pier V. Pole, 4 Exch. 078. Q. B. 733; Barton v. Dawes, 10 C. B. («) Weeks v. Maillardet, 14 East, 201. 508 ; Sellin v. I'rice, L. K., 2 Ex. 18'J; (y) Dyer v. Green, 1 Exch. 71. 30 L. J., Ex. 93. 300 Cii. V. S. 12.] SCHEDULES, INDORSEMENTS, ETC. *184 thing not therein specified (z). A deed is not avoided by subsequently annexing the schedule therein referred to (a) ; but frequently the deed may be used without the sched- ule (^0- When a fine or premium is paid, a receipt for the amount should be indorsed on the lease. It may be concisely ex- pressed thus : — Receipt for consideration. — "Received of Mr. C. D. the sum of pounds as within mentioned." No receipt stamp is necessary in addition to the lease stamp. Attestation. — The usual attestation clause should not be omitted, especially when the lease is granted in pursuance of a power (c). Alterations in the deed should be specially mentioned in the attestation, or marked in the margin with the initials of the attesting* witnesses. Alterations indorsed before execution. — It sometimes hap- pens that after a deed has been engrossed, but before it is executed, some additional covenant or stipulation is agreed * on, wdiich cannot conveniently be interlined. [*184] In such case it may be indorsed on the lease, and referred to in the proper place thus : — " See back (A)." Memorandums indorsed upon leases, if made previously to the execution of the lease, are considered in construction and effect as part of the instrument, although they add to or change the provisions of the deed (jT). An indorsement upon a deed or other alteration therein is taken to have been made before the execution of the deed and to be parcel of it, in the absence of proof to the contrary (e). It is no objection to a lease that an alteration therein was made and (2) Wood V. Rowcliffe, 6 Ex. 407 ; 456 ; Goodright d. Nicholls v. Mark Bake v. Richardson, 6 W. R. 663, 4 M. & S. 30 ; Frogley i'. Earl Love- contra. lace, 1 Johns. 333. (a) West V. Steward, 14 M. & W. (e) Brewster r. Kidffell, Carth. 438 ; 47. But see Sellin v. Price, L. R., 2 Flint v. Brandon, 1 Bos. & P., N. R. Ex. 189, 192; 36 L. J., Ex. 93. 73; Doe d. Tatum v. Catamore, 16 (b) Dames v. Heath, 3 C. B. 938 ; Q. B. 745. The presumption is the Dye V. Green, 1 Exch. 71. otlier way with respect to a will or (c) 22 & 23 Vict. c. .35, s. 12. codicil ; Doe d. Shallcross v. Palmer, Id) Griffin i'. Stanhope, Cro. Jac. 16 Q. B. 747. 301 *185 THE LEASE. [Ch. V. S. 13. signed, after the lease was signed, but before it was sealed and delivered (/). Where after execution. — A memorandum indorsed upon an instrument subsequently to its execution, although it refers thereto, is to all intents a new instrument, and must be executed and stamped accordingly (^). Sect. 13. — Stamjo. Stamps on leases, &o. — The stamping of leases and agree- ments for leases, which was, before the 1st of January, 1871, regulated by a number of complicated enactments, is now regulated by the Stamp Act, 1871, (33 & 34 Vict. c. 97), which came into operation on the 1st January, 1871, from which date also the Inland Revenue Repeal Act, 1870, (33 & 31 Vict. c. 99), repealed a large body of prior enactments on the subject, the titles of which may be seen on reference to that act. Such portions of the Stamp Act, 1870, and of the schedule thereto as bear upon the subject of this work are set out at length hereafter (Ji). In case of additional rent. — It may be mentioned here, however, that by the Inland Revenue Act, 1876, (39 & 40 Vict. c. 16), s. 11, an instrument whereby the rent reserved by an}^ other instrument chargeable with duty as a lease and duly stamped is increased "shall not be chargeable with stamp duty, otherwise than as a lease in consideration of the additional rent theieby made payable.*' Stamp depends on actual consideration. — Prior to the Stamp Act, 1870, the ad valorem stamp duty on a lease, [*185] * or agreement for a lease, was to be regulated by the consideration appearing on the face of it, al- though it might not be that which was actually paid (/), and (/) Lvlnirn r. WarrinfTtnn,! Stark. and as to stamping after execution, K. 162. and for purposes of evidence, see (g) Reed v. Deere, 7 R. & T. 201 , sects. 15-17 of the act, and ;/px/, p. 2 C. & P. 624 ; Hill r. Patten, 8 East, 172. 37:5 ; French i-. Patten, East, .351 ; (i) Duck v. Braddyll, M'CIcl. 217 ; Tilsley's Stamp L. 3o(» (2nd ed.). 13 Price, 465. (Ji) Sec post, Appendix A. sect. 7; 302 Cn. V. S. 13.] STAMPS ON LEASES. *185 the ad valorem duty applied only to considerations passing between the lessor and lessee (^) ; but both these rules are abrogated by the terms of the schedule to the Act of 1870, tit. "Lease." Separate rents. — If two distinct rents be reserved, one for the house and land, and another for the furniture and fix- tures, the stamp must be sufficient to cover both (?). Where the plaintiff demised a slate pit at S. and stone quarries at M. to the defendant under an indenture of lease, to hold the one from Lady-day, 1815, and the other from Michaelmas, 1817, for the several terms of fourteen years from the respec- tive dates thereof, at the yearly rent of 101. for the slate pit and 130/. for the quarries : it was held, that one ad valorem stamp on the aggregate amount was sufficient, as the letting must be considered as one transaction, there being no evi- dence of an intent by the parties to defraud the revenue (««)• Again, where a lease contained a demise of two separate farms, with two habendums differing from each other, a res- ervation of a separate rent in respect to each farm, and sepa- rate covenants, some applying to one farm and some to the other: it was held, that one ad valorem stamp for the amount of both rents was sufficient (w). So also a lease con- taining a demise of land, at a certain rent, and of other land at the same rent as was then paid for it, but not describing the amount, is well stamped by one ad valorem stamp, cal- culated upon the whole amount of rent to be paid for all the lands (o). New stipulation after signature. — If a contract, which is signed by one party, liave, previously to the signature of the other, inserted in it a new stipulation, it is entire, and requires bvit one stamp (p) : and where an instrument con- tained in its general terms a written contract or demise to several different tenants for different estates at different rents, set against each signature, and one stamp only ap- (k) Boone v. Mitchell, 1 B. & C. 18. (n) Blount v. Pearman, 1 Bing. (0 Coster V. Cowling, 7 Bing. 456. N. C. 408; 1 Scott, 55. (m) Boase v. Jackson, 3 B. & B. (o) Parry i'. Deere, 5 A. & E. 551. 1S5. (p) Knight v. Crockford, 1 Esp. 189. 303 *186 THE LEASE. [Ch. V. S. 13. peared on the paper ; the court hekl, that it was matter of circumstantial evidence to which contract such stamp shoukl be applied (c[). An agreement for a lease containing a pro- vision that the lessee should give up a farm at Michaelmas was held not to require a new stamp by the addition of the words "house and buildings," on the ground that the addi- tion merely expressed what the parties intended at first (r). A new agreement of course requires a new stamp (s). [*186] * It was formerly the law that if a lease in writing contained a contract for the purchase of goods, it could not be given in evidence to prove the sale of the goods, unless it had a lease stamp (f). The 97th section of the Act of 1870 now provides for this case, by the enactment that where part of the consideration consists of goods, the value of the goods is to be deemed a consideration in respect of which the lease is chargeable with duty. A lease with option for lessee to purchase requires but one stamp as a lease (it). When a stamp is necessary in evidence. — A stamp is only necessary where a paper is used as evidence of an agreement directly, and not where it is used incidentally Qx). The court will not decide upon a special case stating that any of the deeds or documents therein mentioned are unstamped (^y). The draft of an agreement for letting premises in which alterations were made, and which was finally agreed to by the solicitors on both sides, but was never signed, is not admissible as evidence of an express contract without a stamp (z). So a rough imperfect memorandum of an agree- ment to become surety for rent must be stamped, and will exclude oral evidence of such agreement (a). Where a jjro- posal was made in writing by A. to let a piece of land to B. on certain terms contained in a written agreement between (7) Doc d. Copley V. Day, 13 East, (.r) Wlioldon v. ]\Tatt1u'\vs, 2 Chit. 241. 30t); Forsyth 17. Jorvis, 1 Stark. 437. (r) Doo d. Waters v. Houghton, 1 (//) Nixon v. Alhion Marine Insur- Man. & II. 208. ance Co., L. K., 2 Ex. 338 ; 30 L. J.. {s) See Reid v. Dccre, 7 B. & C. 201. Ex. 180. It) Stone ('. Uugers, 2 M. & W. 443. (z) Cliadwick v. Clarke, 1 C. B. 700. («) Worthington v. Warrington, 5 {a) (Jlovcr v. Ilaikett, 2 II. & N. C. B. 030. 487. 304 Ch. V. S. 13.J STAMPS ON LEASES. *187 B. and C, and A. afterwards agreed, by parol, that B. should liave the land upon the terms proposed ; it was held, in an action for a breach of the agreement, that the original pro- posal was receivable in evidence without a stamp (J). Where, pending a negotiation for a tenancy for less than three years, the terms of which were arranged by parol, a memorandum was signed and delivered by the landlord to the tenant, saying he should be happy to allow him to quit on a certain event without notice : it was held this might be given in evidence without a stamp (\ ; Siordet i;. 182; Doe d. l-'ryor v. Cooiul.s, .] Q. Kiiczyiiski, 17 C. B. 251 ; 25 L. J., C. 13. (iH7. 1'. 2 , Ilcisir v. Grout, 6 M. & N. 35. (/t) Hartlctt r. Smitli, 11 M. & W. (h) Fislinionpcrs' Co. v. Dimsdalo, 483,485; Painter v. Hill, 2 C. & K. 12 C. H. 557; Gurr v. Scudds, 11 n24; Doc d. Fryer r. Coombs, 3 Q. B. K.xcli. !!)(»; Sliari)k's r. Kickard, 2 II. 087 ; Key v. Matliias, 3 F. & F. 27it. & N. 57. (/; Ka^leton r. Gutteridj^a', 11 M. (o) Traviss f. llargreave, 4 F. & F. & W. 4(;5, 40!); 2 Dowl. N. S. 1053. 1078. (m) C. L. V. Act. 1854 (17 & 18 306 Ch. V. S. 13.] STAMPS ON LEASES. *188 ment of the unpaid duty and a penalty of lOZ., and, in case the duty exceeds 10/., of 5 per cent, interest- on the un2)aid duty from the day of execution up to the time when the interest is equal to the unpaid duty. Where an instrument is not required by law to be stamped within a particular time after its execution, the court, upon its being offered in evidence, will not inquire when the stamp was affixed, nor, if a penalty was incurred, whether the proper penalty was paid on the stamping {p) : and if an instrument has been originally unstamped, but has been stamped on payment of the penalty, it is admissible in evidence, though the receipt for the penalty has been erased ; provided it be proved that such receipt has been indorsed on it ; it is not necessary to prove the commissioners' signature to such a receipt (5'). Stamping for purposes of evidence. — By s. 16 of the Stamp Act, 1870, an unstamped lease (amongst other documents) if tendered in evidence in any Court of Civil Judicature in JEngland may be received in evidence on payment to the officer of the court of the amount of unpaid duty, and the penalty payable on stamping the same, and a further sum of one pound. Lease stamped according to law at time of execution. — Under prior stamp acts it had been held (r), that in a case of stamping after execution, the proper stamp to be applied was that Avhich was necessary at the time the stamp was actually affixed. But the Stamp Act, 1870, s. 17, expressly enacts that "save as aforesaid" [/.g., save as in ss. 15, 16, mentioned], "no instrument executed in any part of the United Kingdom shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful or available, in law or equity, unless it is duly stamped in accordance with the lata in force at the time when it was first executed ''' (^s). (p) Rex V. Preston, 5 B. & Ad. & R. 834 ; Deakin r. Penniall,2 Exch. 1028. 320. (7) Apothecaries' Co. v. Ferny- (s) See this enactment acted on in hough, 2 C. & P. 438. Clarke v. Roche, 3 Q.B. D. 170, (?■) Buckwortli V. Simpson, 1 C. M. 307 *189 THE LEASE. [Ch. V. S. 14. Sect. 14. — Execution of Lease. Sealing essential to lease by deed. — Where a lease is by deed, the respective parties should seal and deliver it, for an instrument not under seal is no deed (f)} One piece of wax may be the seal of several persons, but it must appear by the deed and profess to be the seal of each (it). It is not, how- ever, absolutely essential, that there should be either [*189] wax or wafer ; it * seems to be enough that there should be an impression on the parchment or paper, with the intent of sealing (x). The method of our Saxon ancestors was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross, which custom illiterate persons for the most part to this day keep up by signing a cross for their mark, when unable to write their names. A deed is well executed by an illiterate person, if it be signed by a third person at his request and in his presence, and sealed and (J.) 1 Steph. Com. 402. {x) See Reg. v. Trustees of Covent («) Cooch V. Goodman, 2 Q. B. Garden, 7 Q. B. D. 238, n. 580. 1 Execution of leases. — Covenants in a sealed lease as a general rule in law bind only those nu-ntioncd as parties. Haley r. Boston Belting Co., 140 Mass. 73. In New York, it lias been held that a corporation wliicli had agreed to assume the lessee's covenants, and was mentioned in lease as real party was liable directly to the lessor. Van Scliaick i\ Third Ave. H. H. Co., 38 N. Y. 346. Parties who execute in their own names, although for benefit of otliers, are personally liable. Seaver r. Coburn, 10 Cash. (Mass.) 324. Upon a lease to " A., Treasurer of Eagle Lodge " with covenant not to underlet, A. is per- sonally liable. Grau v. McVicker, 8 Biss. 13. A scaled lease executed by but one party is binding upon him if accepted and performed by the other party, Jennings v. McComb, 112 Pa. St. 518, 522 {per Trunkey, J.) ; Grove v. Hodges, 55 Pa. St. 504; and the title will pass under an indenture sealed only by the grantor or lessor if accepted by the grantee or lessee, both being bound by the covenants, the remedy against one being assumpsit, and against the other covenant. Grove v. Hodges, supra ; Libbey r. Staples, 30 Me. KU). If, however, only the lessee execute and do not occupy, the lessor cannot enforce the lease. Cleves v. Willoughbv, 7 Mill (N. Y.) 83 {prr Beardsley, J.). As to the effect of (x-cuiiMtioii uiidiT void and imperfectly executed leases, see unl", Chap. V., sec. 2, notes, and sec. 4, notes. 30H Bowen & BowenJ Ch. V. S. 14.] EXECUTION OF LEASE. *189 delivered by him. It need not be read over to him, unless he requires it (^). Whether lease by deed must be signed. — It is a point OH which authorities are at variance, whether the Statute of Frauds, 29 Car. 2, c. 8 (2), requires leases by deed to be signed (a). The preponderance of authority (5) seems to be in favour of the signature not being necessary. Failure of lessor to execute. — A lessee entering and hold- ing under a lease not executed by his landlord is not estopped, in an action by the assignee of the lessor, from showing such want of execution by the lessor (c). Where a lease for a term, containing a covenant to repair during the term, although executed by the lessee, is not executed by the lessor, the lessee is not bound hy the covenant, for the lease beincj void he has not had the consideration for his cove- nant(f?). And it seems that such lessee would not be bound by such a covenant by the fact of his having enjoyed the premises for a period of years equal to those which the term would have comprised, if it had been granted, if he was not bound during his continuance (e). But he may be liable upon an implied tenancy on the like terms and conditions as those expressed in the lease. Delivery. — The lease must also be delivered either by the parties themselves or by their attorney authorized by a power, for merely sealing does not make a deed : the delivery is also expressed in their attestation "sealed and delivered,^'' for delivery makes it a lease. Almost any manifestation, however, of the party's intention to deliver, if accompanied by an act importing the same, will constitute a delivery. (j/) Rex V. Longnor, 1 N. & M. 577. {d) Com. Dig. tit. Corenant (F.) ; {z) Ante, 127. Soprani v. Skurro, Yelv. 18; Waller (a) Cooch V. Goodman, 2 Q. B. v. Dean and C. of Norwich, Owen, 580 ; Aveline v. Whisson, 4 M. & G. i;]6 ; Knipe v. Palmer, 2 Wils. 132 ; 801. Pitman v. Woodbury, 3 Exch. 4; (i) Williams on Real Projierty, p. Swatman v. Ambler, 8 Exch. 72. 142; Leake on Contracts, p. 77. But see How v. Greek, 3 H. & C (c) Cardwell v. Lucas, 2 M. & W. 301 ; 34 L. J., Ex. 4. Ill; Soprani v. Skurro, Yelv. 19; (e) Pitman r. Woodbury and Swat- Rose V. Poulton, 2 B. & Ad. 822. man f. Ambler, supra. 309 *190 THE LEASE. [Cn. V. S. 14. Escrow. — But when it is intended that the lease shall not take effect as a demise until something is done by [*190] the lessee — e.g. payment of the premium * or of the expenses — the lease should be delivered only as an escrow, i.e.., conditionally to take effect as a lease upon the performance of what is so to be done (/). Although sealed and delivered and attested in the usual manner, parol evi- dence is admissible to show that it was only to ojjerate as an escrow, until, &c. () Davidson v. Cooper, 11 M. & (e) The Agricultural Cattle Insnr- W. at p. 800; Stewart v. Aston, 8 Ir. ance Co. v. Fitzgerald, 10 Q. B. 402; Com. L. R., N. S. .35; Doe d. Cour- Stewart v. Aston, supra; Itoe d. Karl tail u. Thomas, 9 R. & C. 288; West of Berkeley v. Arclibp. of York, 6 V. Steward, 14 M. & W. 47. East, 80. (c) Hutchins v. Scott, 2 M. & W. 322 Cn. V. S. 19.] LEASES UNDER POWERS. *200 Sect. 19. — Leases under Powers (/)• (a) Generally. Construction of powers. — The rules for the construction of powers of leasing settled land have been variously laid down by different judges, who have severally declared that they must be construed strictly (^), liberally (A), * in- [*200] differently, without leaning to either side (i) ; equi- tably in favour of the donee (A;), favourably for the donee (V) ; strictly for the tenant for life, and liberally for the remainder- man (m). It seems, however, to be agreed that powers must be construed according to the intention of the parties (n) ; and so that the estate itself, which is subjected to the power, shall not be destroyed by the exercise of it (o). It is the duty of the court to support a power, if possible, and to give effect to its execution, if it is not exercised from improper motives or for improper objects (/>). Statutes as to powers. — Many formal defects in leases under powers have been remedied by 12 & 13 Vict. c. 20, as amended by 13 Vict. c. 17 (^) ; and a substantial altera- tion of the law of leasing settled land has been effected by the Settled Land Act, 1882 (45 & 46 Vict. c. 38), which by conferring detailed powers of leasing upon a tenant for life independently of his trustees, has greatly diminished the importance of the cases. Settled Land Act. — The Settled Land Act, 1882, is by (/) See Sugden (Lord St. Leon- (/I) Ward v. Hartpole, 3 Bligh, 470, ards) on Powers, 711-835 (8th ed.), 485. A.D. 1861, and see, also, Farwell on (/) 0. Bridgm. by Bann, 90, 93. Powers, A. D. 1874. (m) Orby v. Mohmn, Gilb. Eq. Rep. ((7) Fitzwilliam's case, 6 Rep. 32; 58; Taylor d. Atkyns v. Horde, 1 Taylor d. Atkyns v. Horde, 2 Smith Burr. 60, 125; 2 Smith L. C. L. C. 495; Doe d. Pulteney v. Cavan, (n) Goodtitle v. Funucan, 2 Doug. 5 T. R. 567 ; 6 Bro. P. C. 175. 573, 574 ; Hawkins v. Kemp, 3 East, {h) Right d. Bassett v. Thomas, 3 441 ; Doe i\ Rendle, 3 M. & S. 99; 1 Burr. 1441; 1 W. Blac. 446; and Piatt on Leases, 397,398. cases cited arguendo in Vivian ?'. (0) Powell on Powers, 407 ; Sug. Jegon, L. R., 3 PI. L. Cas., at p. 288. Pow. 730; Winter v. Loveday, Carth. {i) Goodtitle d. Clarges v. Funu- 428. can, 2 Doug. 573; Doe d. Earl of {p) Carver v. Richards, 29 L. J., Jersey v. Smith, 7 Price, 313. Ch. 357 ; 6 Jur.,N. S. 410. (9) See/?osf, sub-s. {g). 323 *201 THE LEASE. [Ch. V. S. 19. s. 2 retrospective, that is, it applies whether a settlement of the land were made before or after the commencement of the act (although of course a bad lease made before the com- mencement of the act does not become good by vij-tue of the act through having anticipated its provisions) ; and by ss. 50 and 51 a contract by a tenant for life not to exercise the powers of the act is void, and so is any prohibition or limita- tion in the settlement to a similar effect. AVhat the leasing powers of a tenant for life under the act are, we have already seen (r) : and it need only be added here, that by s. 54, a lessee dealing in good faith with the tenant for life is as against all remainder-men conclusively taken to have given the best rent that could reasonably be obtained ; that by s. 56 the power of the act are cumulative, but prevail over the powers of a settlement in any case of conflict between them ; and that by s. 57 a settler may confer either on a tenant for life or trustees any powers additional to or larger than those conferred by the act. Cases prior to act. — Prior to the Settled Land Act, it was held in Vi%-ian v. Jegon (s) that a general power to a tenant for life to lease mines did not imply a power to lease beyond the life ; but that powers to lease for lives or years might be executed by a lease, either absolutely for certain lives, or a certain number of years ; or conditionally [*201] for a number of years * determinable upon a life or lives (0- Where an estate was settled on several tenants for life in succession, with remainders in tail, with power to every tenant for life to make leases of all or any part of the demesne lands for not more than twentj'-one years, or for one, two, or three life or lives : it was held, first, that the power only authorized either a chattel lease not exceeding twent3''-one years, or a freehold lease not exceed- ing three lives : and that a lease by a tenant for life for ninety-nine years determinable on lives, as it might exceed twenty-one years, was void at law, and was not even good pro (r) Ante, Ch. I., sect. 4. (t) Commons v. Marshall, 6 Bro. P. (s) L. R. 3 H. L. 285. C. 168; Sug. Pow. 409, 737. 324 Cu. V. S. 19.] LEASES UNDER POWERS. *201 tanto for tlie twenty-one years (?*). Where by a marriage settlement the husband had the wife's estate for life, with a power to grant leases for twenty-one years, but no longer ; and in breach of the power he granted a lease to A. for ninety-nine years, determinable upon lives ; and the wife survived him, and conveyed the fee to B. : and in the con- veyance was recited the lease to A., who was recognized as being then tenant in possession of the estate, at the yearly rent reserved: on an action of ejectment brought by B. against the assignee of the lease, it was held that the lease was void, and the recital only matter of description (a;). " Reasonable and proper " leases. — Under a power to lease for years or lives, with or without covenants for renewals, leases for 999 years were held valid (y), and in Mostyn v. Lancaster (2) a power to grant such mining leases as should seem " reasonable and proper " was held to authorize a lease of mines for ninety-nine years at a peppercorn rent by way of mortgage to secure an advance to the tenant for life. Lease less than authorized. — A man having a power may do less than such power enables him to do. A lease for fourteen years is warranted by a power to lease for twenty- one years (a). A power to lease for any term or number of years certain, not exceeding twenty-one years, will war- rant a lease for twenty-one years determinable at the option of the lessee at the end of the first seven or fourteen years (5). A power to lease for three lives may be executed by a lease for two lives ((?). A power to lease for any term not exceeding three lives and forty-one years will warrant a lease for three lives and forty-one years to commence from the 1st of November preceding the day of the death of the survivor of the cestuis que vie (d). {u) Eoe d. Brune v. Prideaux, 10 («) Isherwood v. Oldknow, 3 M. & East, 158 ; Sug. Fow. 738. S. 382 ; Easton v. Pratt, 2 H. & C. (x) Doe d. Briggs v. White, 2 D & 676 ; 33 L. J., Ex. 233. R- 716. (b) Edwards v. Milbank, 4 Drew. (y) Sheehy v. Lord Muskerry, 1 H. 606 ; 29 L. J., Ch. 45 ; Sug. Pow. 742. L. Cas. 576. (c) Sug. Pow. 746, pi. 26. (s)L. R., 23 Ch. D. 583; 52 L. J., (d) Re Crommollin Estate, 1 Ir. Ch.848; 48L. T. 715; 31 W. R. 686, Com. L. R., N. S. 182; Sug. Pow. C. A., affirming Bacon, V.-C. 746. 325 *202 THE LZASE. [Ch. T. S. 19. Building and repairing leases. — A tenant for life, [*202] having a power to grant building leases for * sixty- one years, reserving the best improved ground rent, granted a lease for that term, which was not expressed to be a building lease, but which contained a covenant by the lessee to keep in repair the premises demised (old houses) or such other •• house as should be built duringr the term : '' it was held, that this was not a buildinor lease within the power, and that such a lease being granted by tenant for life, who had a bare naked power without any legal interest, "was void, and not capable of being confirmed by acceptance of rent by the remainder-man («?). So a power to grant long leases "for the purpose of new building or effectually re- building and repairing any messuage. &c.. being or to be on the premises," was held to be not well executed by a lease containing a covenant effectuaUy to repair, as it is not equiv- alent to a covenant efectually to rebuild and repair (/). But a power to grant leases for twenty-one years, or build- ing or repairing leases for sixty-one years, is well executed bv a lease for fortv vears containinor the usual covenants to repair and keep in repair the demised premises, and so to leave them at the end of the term (oe d. Dymoke r. Withers, 2 (i) D*vrell c. Hoare, 12 A. & E. B. it Ad. 896. 3-56. (q) Easton r. Pratt, 2 H. i C. 676 ; (l) Goodtitla r. Fanacan, 2 Doug. 33 L J, Ex. 233. o*>>. 326 Ch. V. S. 19.] LEASES UNDER POWERS. *203 his life, and the surplus to himself, the power is not thereby extinguished, but he may still grant a lease agreeable to the terms thereof (Q. If a man having a power annexed to his estate, charge his estate, and afterwards execute his power, the estate which rises by the execution of the power is sub- ject to the charge during the estate : as if a tenant for life, with power to make leases, grant a rent-charge, and after- wards make a lease, the lessee takes subject to the rent- charge during the life of the lessor (>»). In whom powers may vest. — If the power be to a man and his assigns to make leases, &c., it may be exercised toties quoties (/i), and will run with the estate to the assignee in deed or in law, and go to his executor, or to the assignee * of the executor (o) ; or to his heir, together [*203] with the estate (je>). It is no objection to a lease under a power, that it is in trust for him who executes the power ; j^rovided the legal tenant be bound during the term in all requisite covenants and conditions (^). But where by a marriage settlement a power was given to the wife, after the death of her husband, to grant leases for twenty-one years, reserving the best rent, &c., it was held that a lease by the wife to a second husband was not a good execution of the power (r). Where trustees are invested with a power of leasing, they must exercise it in like manner as a trust to let (s). Where devisees in trust, with discretionary powers, disclaim, and the trust estate descends to the heir, he cannot exercise any of the discretionary powers, such as granting leases, &c. (^). Where the heir of a surviving trustee is the (/) Ren d. Hall v. Bulkeley, 1 ed.) ; Wilson v. Sewell, 1 W. Blac. Doug. 292, 565. 617; 4 Burr. 1975; Earl of Cardigan (m) Sabbarton v. Sabbarton, Cas. v. Montague, Sug. Pow. 918; Bevan temp. Hardw. 415. v. Habgood, 1 Johns. & H. 222 ; 30 L. (n) Sug. Pow. 718. J., Ch. 107. (o) How V. Whitfield, 1 Ventr. 340 ; (r) Doe d. Hartridge v. Gilbert, 5 Freeman, 476. Q. B. 423. (p) Ex parte Cooper, re North Lon- (s) Sutton v. Jones, 15 Ves. 588; don R. Co., 34 L. J., Ch. 373. Sug. Pow. 722. (q) Taylor d. Atkyns v. Horde, 1 (t) Robson v. Flight, 34 L. J., Ch. Burr. 124; 2 Smith L. C. 495 (6th 226; 13 W. R. 393. 327 *204 THE LEASE. [Ch. V. S. 19. proper party to demise, a lease granted by the executors of sucli trustee is void, and not cured by 12 & 13 Vict. c. 26 (u). (b) In Possession or Reversion. Leases in possession or reversion. — The Settled Land Act, 1882 (s. 7, subsect. 6), provides that leases by a tenant for life under that act shall be made to take effect in possession not later than twelve months after date. In all well-drawn powers of leasing, where it was intended that a lease in reversion may be granted, it was always expressly declared so ; and if a reversionary lease was not to be granted, it was expressly declared that the lease shall be made to take effect in possession, and not in reversion, or by way of future interest (x). Upon a general power to make leases, without saying more, the law adjudged that the leases ought to be leases in possession, and not leases in reversion, or in futuro (z/). Under a power to make leases to one, two or three persons, the donee of the power cannot make a lease for the life of the first (unborn) son of J. S. (z). On what land they attach. — If there be a power to make leases expressly stated to be in possession, which attaches upon an estate, part of which is in possession and part in reversion at the creation of the power; the donee of the power may immediately make leases in possession of the estate in reversion, as well as of that in possession; [*204] for in such case the word * " possession " in the power refers to the lease, and not to the land (a) : but it seems, that if a power enable any one to make leases in reversion as well as in possession, and some parts of the land subject to the power be in possession, and other part of it in reversion, he cannot make a lease in possession and another lease in reversion of the same land; but his (h") Ex parte Cooper, re North (c) Snow v. Cutler, T. Raym. 103. Lonrlon K. Co., 34 L. J., Ch. 373. (a) Powell on Powers, 425 ; Bac. (t) Sur. Pow. 747. Ahr. tit Leases (I.) ; Fox ?'. Prick- (//) Sheecomb v. Hawkins, Cro. wood, Cro. Jac. 347; 2 Biilstr. 210; Jac. 318; Yelv. 222; Brown!. 148; 2 Roll. Abr. 200, pi. 5; Sug. Pow. Countess of Sussex v. Wrotli, Cro. 755. Eliz. 6. 328 Cn. V. S. 19.] LEASES UNDER POWERS. *204 power to make leases in reversion will be confined to such land as was not then in possession (^). Lease in reversion. — Where there is a power to grant leases in possession only, the lease in possession is not con- trary to the power, although the estate at the time of grant- ing the lease was held by tenants at will, if, at the time, they receive directions from the lessor to pay their rent to the lessee, to which they assent (e). Where a tenancy from year to year has expired', but the outgoing tenant has a customary right over part till a future day, a lease in possession may be granted (t?). Where one under a power to lease for twenty- one years in possession, but not in reversion, granted a lease to his only daughter for twenty-one years, "to commence from the day of the date ; " it was adjudged a good lease, as the word " from " may mean either inclusive or exclusive, according to the context and subject-matter, and the court will construe it so as to effectuate the deeds of parties, and not to destroy them (f). But if made to commence only a day after the execution of the lease, it was not good at com- mon law or in equity as a lease in possession (/). Any such defect would now be cured by 12 & 13 Vict. c. 26, s. 4, if'the lessor lived till the day appointed for the commencement of the term. Under a power to demise for twenty-one years in possession, and not in reversion, a lease dated 17th February, 1802, to hold from the 25th of March next ensuing the date thereof, is good, if not executed and delivered till after the 25th of March, for it then takes effect as a lease in posses- sion, with reference back to the date actually expressed (jf) : but under a power to lease in possession and not in rever- sion, a lease for years executed on the 29th of March to the then tenant in possession, to hold as to the arable land from (V) Bac. Abr. tit. Leases (I. 11). Att.-Gcn. r. Countess of Portland, (c) Goodtitle d. Clarges v. Funu- Covvp. 723; Sug. Pow. 7(50, 761. can, 2 Doug. 565 ; Bac. Abr. tit. (/) Pollard v. Greenvil, 1 Ch. Gas. Leases (L 11) ; Sug. Pow. 7G2. 10; 1 Ch. Rep. 184; Doe v. Calvert, (d) Doe V. Snowden, 2 W. Blac. 2 East, 375; Bowes v. East London 1224 ; Doe ;;. Calvert, 2 East, 370 ; W. W. Co., Jacob, 374 ; Sug. Pow. Sug. Pow. 763. 760. (e) Pugh V. Duke of Leeds, Cowp. (7) Doe d. Coxe v. Day, 10 East, 714; Freeman v. West, 2 Wils. 165; 427; Sug. Pow. 761, pi. 43, Denn v. Pearnside, 1 Wils, 176 ; 329 *205 THE LEASE. [Ch. V. S. 19. the 13th of February preceding, and as to the pasture from the oth of April then next, under a yearly rent payable quarterly on the 10th of July, 10th of October, 10th of Jan- uary and 10th of April, was held void for the whole ; [*205] though such lease were according to the * custom of' the country, and the same had been before granted by the person creating the power (A). But now any such defect would be cured by the 12 & 13 Vict. c. 26, s. 4, pro- vided the lessor were living on the 5th 'of April, and then competent to grant such a lease. Effect of existing leases. — The circumstance of a second lease for years being granted to the same lessee who holds under a former lease (Q, to commence after the expiration of such former lease, does not o^ierate to make the latter a continuation of the former lease, where the terms are granted by different deeds ; although the residue of the time to come after the former lease, together with the period for which the latter lease is granted, do not in length of time exceed the limits fixed by the power ; for the latter will notwith- standing be considered as a reversionary lease, as much as if it had been granted to a reversioiiary lessee (^). Leases in possession or reversion. — If a man have power to make leases in possession or reversion, and he make a lease in possession once, he may never afterwards make a lease in reversion, for he has an election to do the one or the other, but not both (I}. Under a power to lease in possession for lives, or for years determinable on lives, a man cannot make an absolute lease in possession for j-ears ; but he may make an absolute lease in reversion for years (I}. Where powers were given to make leases of present but not of future interest, and so as the same should go with and be incident to the remainder and reversion ; a lease with a reversion in execution of those powers to the tenant in pos- session of the freehold, his heirs and assigns, was held good, C^) Doe d. Allan v. Calvert, 2 (k) Doe d. Pultoney v. Lady Ca- East, .370. van, f) T. R. 507 ; Smith v. Day, 2 M. (0 As to the effect of a new lease & W. 084. operating' as a surrender of a former (/) Winter v. Loveday, 1 Ld. Rayni. lease, acapost, Cliap. VIII., sect. 3 (b). 207 ; 2 Salk. 5.37. 330 Cu. V. S. 19.] LEASES UNDER POWERS. *206 because " heirs and assigns " meant those to whom the remainder and reversion would go (wi)* Where one, having power to make, leases for twenty-one years in possession, made a lease to A. for twenty-one years in trust for the pay- ment of debts, but the lease was made to commence from a time to come, and so not pursuant to the power, yet being made for the payment of debts, it was supported in equity (n). Most defects of this sort would now be cured by 12 & 13 Vict. c. 26, s. 4 (o). (c) Umal Covenants. What are usual covenants. — What are usual covenants in a lease, under a power requiring such covenants is a question of fact for the jury, and not for the court (jt?). * It depends on what are the usual and customary [*206] covenants of the neighborhood (cf) : but it has been held, that what are the "usual and reasonable covenants" must depend on the leases of the same land in existence at the time of the creation of the power (r). Where a power to lease was given upon reserving the ancient, usual and accustomed rents, heriots, boons, and services, a covenant " to keep in repair " was held to be " an ancient boon," and the omission of it was deemed fatal (s). Where there was a power to tenant for life to lease for years, with the usual covenants, &c., it was held, that a lease made by him, con- taining a proviso, that in case the premises were blown down, or burned, the lessor sliould rebuild, otherwise the rent should cease, was void, the jury finding such covenant to be unusual (t). Where the settlement creating the power does not require the usual covenants to be inserted in the (m) Hotley v. Scott, Lofft, 316. Stephens, 6 Q. B. 208; Smith v. Doe (n) Pollard v. Greenvil, 1 Ch. Cas. d. Earl of Jersey, 7 Price, 281 ; 3 10; 1 Ch. Rep. 184. Bligh, 290; 2 B. & B. 474; Doe J. (o) Post, subs. {g). Earl of Egremont v. Williams, 11 Q. ip) Goodtitle d. Clargcs v. Funii- B. 688. cifn, 2 Doug. 565 ; Bennett v. Wo- (s) Earl of Cardigan v. Montague, mack, 3 C. & P. 96; 7 B. & C. 627; Bug. Pow. 918 (8th ed.). Powell on Powers, 578. {t) Doe d. Ellis v. Sandham, 1 T. (9) Boardman v. Mostyn, 6 Ves. R. 705; Yellowly u. Gower, 11 Exch. 467, 471 ; 4 Jar. Prec. 297 (3rd ed.). 274. (?•) Doe d. Earl of Egremont v. 331 *207 THE LEASE. [Ch. V. S. 19. leases, any covenants may be inserted or omitted, as agreed on, provided they do not amount to a fraud on the power (ii). Ways, &c. — A private act of parliament enabled a tenant for life to grant building leases, and "' to lay out and appro- priate any part of the land authorized to be leased as and for a Avay or ways, street or streets, avenue or avenues, square or squares, passage or passages, sewer or sewers, or other conveniences for the general improvement of the estate and the accommodation of the tenants thereof." A tenant for life having appropriated certain land, and laid it out for a way for the general improvement of the estate, in exercise of the powers of the act, by deed granted rights of way over it to two several tenants : held, that tenants under other leases granted in pursuance of the act, but containing no grant by deed of a right to use the way, were not entitled by the provisions of the act to use it (2;). (d) Proviso for Re-entry. Po'wer to grant -with proviso for re-entry. — A power to tenants for life to grant leases, provided that a right of re- entry is reserved for non-payment of rent, is well executed by a lease, providing a re-entr}^ in case the rent remains in arrear fifteen days, and there is no siifficient distress upon the jyremises^ the conditional proviso being the usual form in leases (?/). Where a power of leasing required the inser- tion in the leases of a clause of re-entry for [*207] * non-payment of rent, and a lease was made with a proviso for re-entry if the rent should be forty-tioo days in arrear, it was held such a lease was valid (2). But a lease with a proviso for re-entry, if the tenant should suffer the premises to be out of repair, and should not repair the (h) Goodtitle f. Funucan, 2 Doug. ville v. WinRficld, 7 Price, .343; 2 575. Brod. & B. 498, 11. ; but see contra, (x) White V. Leeson, 5 H. & N. 53 ; Coxe v. Day, 13 East, 118. 29 L. .T., Ex. 105. (z) Rutland d. Doe v. Wythe, 6 M. (y) Smith v. Doe rf. Earl of .Jersey, & W. 088; 12 Id. 356; 10 CI. & F. 7 Price, 281 ; 3 liligh. 290; 2 Brod. & 419. B. 473; 6 M. & S. 407 ; Lord Tankcr- 332 Cii. V. S. 19.] LEASES UNDER POWERS. *207 same tvitJun six months next after notice, was held bad, the chiuse as to notice not being usual (a). (e) Lands usually let. "What included in " Lands usually let." — Prior to the Settled Land Act the power of leasing usually extended to all the hereditaments therein comprised ; and if the mansion-house or any other part was not intended to be let, it was expressly excepted (6). Where leases were granted under powers to lease lands " usually demised," it had to be shown by old leases or other satisfactory evidence that the lands have usually been demised ; otherwise they could not be sup- ported (c). Lands not demised for the space of twenty years before the execution of a power to demise at the rent then usually reserved and paid, could not be leased under such a power (c?). Where the power was to extend to land usually demised, it was held, that land settled for years, determinable on lives, by a family settlement, came within that description (e) ; so lands which have been previously let two or three times (/), but not lands let only once for a short term (/) ; but a covenant to stand seised might amount to a sufficient demise (^). In a settlement of per- sonal property the parties covenanted to settle all future- acquired property upon the same trusts, &c. : held, that this authorized the insertion of a power to grant mining leases in the settlement of subsequently-acquired freeholds, the prior owner having granted such leases, though the mines had never been effectually worked (li). Lands not before in lease. — It seems to be settled that the question — whether lands not before in lease may be demised under a power to lease lands and other hereditaments, pro- (rt) Doe d. Earl of Egremont v. Vaugh. 28; T. Jon. 27; Sug. Tow. Burrough, 6 Q. B. 229. 728, 729. (6) Sug. Pow. 727 (8th ed.). For (e) Right d. Basset v. Thomas, 1 exception in Settled Land Act, 1882, W. Blac. 446; 3 Burr. 1441, 1448. see s. 15 of that Act. ( f) 2 Roll. Abr. 2G1 ; Sug. Pow. (c) Id. 735 ; Earl Cardogan v. Mon- 728, 730. tague, Id, 918. (7) Right d. Basset v. Thomas, 3 (c?) Tristan d. Gore v. Boltinglas, Burr. 1441, 1447; 1 W. Blac. 446. (/() Scott V. Steward, 27 Beav. 3QV. *208 THE LEASE. [Cii. V. S. 19. vided that such rent or more be reserved upon every lease as has been reserved, or paid for it, within a given time previous to the creation of the power, — is a question of con- struction of the intention of the author of the power, to be collected from the instrument creating the power, [*208] and the circumstances of the estate (i). * Thus, where there was a power to lease a manor, except the demesne lands, it was held that copyholds, though within the description, could not be demised : but that the rents and services of the manor might, notwithstanding: a qualification annexed to the power, which said that the ancient rent should be reserved, and there could be no reser- vation of rent upon a lease of rents and services out of which no rent issues : for it appeared to be the intent of the set- tlement, that part of the manor should be demisable (/r). Under a power in a family settlement to make leases of all or any part of the premises, reserving the ancient rent, lands always occupied with the family seat cannot be demised ; for in such case the qualification annexed to the power, "that the ancient rent must be reserved," manifestly ex- cludes the mansion-house and lands about it never let : the nature of the thing in such case speaks the intent (^). Whether good for part only. — Where there was a devise of lands to trustees and their heirs, in trust to the use of a man and his first and other sons in strict settlement, remainder to another and his first and other sons in strict settlement, with power to the trustees from time to time, during the minorities of the persons to whom the premises should de- scend, and to any tenant for life, to grant any lease of all or any part of the lands so limited, so as there be reserved the ancient and accustomed yearly rent, ^c. : a lease of part of the lands devised, in several parcels, in one of which parcels were included, together with lands anciently demised, two (/) rowc'll on Powers, 402 ; 2 Eoll. 1 L<1. ILiym. 207 ; 2 Salk. 537 ; Leigh Abr. 202; Wakcnian v. Walker, ;] r. Karl of Halcarres, (5 C. B. 847. Kob. 697; 1 Ventr. 294 ; 2 Lev. IT/). (/) HafTKott v. Oughton, 8 Mod. (/•) Loveday r. Winter, 5 Mod. 249; Fortescue, IV^2\ Goodtitlc v. 245,378; 12 Mod. 148; 1 Comb. 37 ; Funuean, 2 Doup. 574. See also I'omery v. Partington, 3 'J\ K. (i05. 334 Cii. V. S. 19.] LEASES UNDER POWERS. *209 closes never before demised, at one entire rent, viz., the ancient rent for that part which had been anciently demised, was held to be void for the whole of the lands included in that parcel, as well the lands never before let as those anciently let ; but it was considered good as to the other parcels, which contained only lands anciently demised, and on each of which there was a separate reservation of the ancient rent (wj). Where lands were demised to a person for life, with power to lease for lives all but a certain ex- cepted portion, reserving the like rents as were then reserved, or more, the rents then being 29^. ; and the devisee made a lease for three lives at the yearly rent of 40?. of the lands within the power and part of the excepted lands, it was held that the rent could not be apportioned, and that the lease being void for the excepted lands was void as to all Qti). But where a lease was held void because lands under a power were let together with other lands not under the power, it was held that the lease was good as to the latter lands against the heirs of the lessor (o). * (f) Mode of Execution. [*209] By 22 & 23 Vict. c. 35, s. 12, "a deed hereafter executed in the presence of and attested by two or more witnesses in the manner in which deeds are ordinarily executed and attested (j?), shall, as far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary () Smith V. Day, 2 M. & W. CM. (d) Bac. Abr. tit. Leases (K.). (c) Sec Id. OKI, (!!»4, (i'.K) ; Doc d. {>') Hac. Abr. tit. Leases (L. 1). Ilawlings v. Walker, 5 B. & C 111 ; { /') llinehlilTe r. Karl of Kinnoul, 6 Bing. N. C. 1 ; G Scott, 050. 338 Ch. V. S. 21.] CONCURRENT LEASES. *212 the same premises to. another person. If nnder seal it operates as an assignment of part of the reversion during the continuance of such previous lease, and from thence- forth as a lease in possession during the residue of the time therein expressed to be granted. It entitles the lessee, as assignee of part of the reversion, to the rent reserved in the previous lease, and to the benefit of the covenants therein contained, Avhich are to be respectively paid and performed during the then residue of the term granted by the iirst lease, and the continuance of the concurrent lease (41 ; Doe d. Tenants and Tenants in Common Wymiham v. Ilalcombe, 7 T. II. 713. (H. 1). (r) Lyon v. Heed, 13 M. & W. 285. (0 Co. Lit. 47; James v. Landon, («) Co. Lit. 353, n. 1 ; Ke.\ v. Lub- Cro. Eliz. .'5(5. ' See ante, sec. 1, Chap. L, note. 340 Ch. V. S. 22.] ESTOPPEL. *213 any renewed tenancy (u) : they ought to be mutual, other- wise neither party is bound by them (f).^ Effect of estoppels on the lessor. — A grantor by deed is estopped from saying that he had no interest (a^).-^ So a lessor is estopped by the lease from denying that he had any estate in the land at the time the lease was executed by him, or that he had no right to dispose of the possession during the term thereby expressed to be granted (^).i Upon the execution of a lease which operates by estoppel, there is in contemplation of law, created in the lessor, a reversion in fee simple by estoppel, which passes by descent to his heir, and by purchase to his assignee or devisee, who may sue on the covenants in the lease (2). An under-lease made by a lessee who at the time of making it, and subsequently, had no legal interest, operates as a demise by estoppel (a). If a man make a lease for years by indenture of lands wherein he has nothing at the time of such lease made, and afterwards purchase those lands, this makes his lease as good and un- avoidable, as if he had been in the actual possession and seisin thereof at the time of such lease made (5). Estoppel in case of mortgage. — Where a lessee for years made an under-lease by way of mortgage, and afterwards another sub-lease by indenture for a short term, it was held that the latter sub-lease, though originally a lease by estoppel, was convertible into a lease in interest by a reconveyance by the mortgagees, so as to give a right of action to the assignee of the lessee (c). But where a mortgagor made a lease after («) London and North Western R. («) Cuthbertson v. Irving, 4 H. & Co. V. West, L. R., 2 C. P. 553; 36 N. 742; 6 Id. 135; 28 L. J., Ex. 300; L. J., C. P. 245. 29 Id. 485. (v) Co. Lit. 352. (a) Doe d. Prior i-. Ongley, 10 C. (x) Doe d. Hurst v. Clifton, 4 A. & B. 25. E. 813 ; Doe d. Leeming v. Skirrow, ((') Bac. Abr. tit. Leases (O.) ; Tre- 7 A. & E. 157; Doe d. Gaisford v. vivan v. Lawrence, 6 Mod. 258 ; 2 Ld. Stone, 3 C. B. 176 ; Doe d. Levy v. Raym. 1048 ; 1 Salk. 276 ; Goodtitle Home, 3 Q. B. 757, 766. d. Faulkner v. Morse, 3 T. R. 371 ; (y) Darlington v. Pritchard, 4 M. Sturgeon v. Wingfield, 15 M. & W. & G. 783; 2 Dovvl., N. S. 664; Green 224. V. James, 6 M. & W. 656 ; Cole Ejec. (c) Webb v. Austin, 7 M. & G. 701 ; 220. 8 Scott, N. R. 419. 1 See ante, sec. 1, Chap. I., note. 341 *214 THE LEASE. [Cii. V. S. 22. the mortgage, a subsequent purchaser of the legal estate from the mortgagee and of the equitable estate from the mortgagor, the latter joining in the conveyance of the legal estate, was not before the Conveyancing Act (c^) [*214] * bound by the lease of the mortgagor (e). A lessor is estopped from contending that he had merely an equitable estate when he granted the lease (/). But where the lease stated that the lessors were oicners subject to a mortgage, and that they demised the land to the lessee, it was held that neither party was estopped from denying that the lessors had a legal reversion, but that they were estopped from asserting it (^). After a term had been mortgaged, H., who had interest, made a lease for years by deed ; the mort- gagees and H. then surrendered to the lessor, who re-demised to H., and the latter then assigned his interest to the defend- ant: held that there was a reversion in H. by estoppel on the lease made by him which passed to the defendant, who was thereby liable to the lessee on the covenants of that lease (K). Tenant estopped. — Cooke v. Loxley. — It is one of the first principles of the law of estoppel, as applied to the relations between landlord and tenant, that a tenant is estopped from disputing the title of his landlord (i). In an action on a bond conditioned for the payment of the rent of certain prem- ises recited in the condition to be demised by indenture at a certain rent, the defendant is estopped from saying that by the indenture a less rent than that mentioned in the condi- tion was reserved (/r). In an ejectment for mines against a member of a mining company, it was held tliat the defendant was estopped from disputing the title of the lessor of the ((/) For effect of Conveyancing (/) Cooke r. Loxley, 5 T. R. 4 ; Act, see Ch. I., sect. 28 (t), ante.. Cutlibertson v. Irving, supra, note (e) Doe (I. Lord Downe r. Thomp- (.s) ; Beckett v. Bradley, 7 M. & G. son, 9 Q. B. 10:37. 904 ; 8 Scott, N. R. 843; 2 1). & L. (/) Greene. James, n M.&W. 050. 680; Langford i'. Selmes, 3 K.iy & (fj) Pargetcr v. Harris, 7 q. B. 708. J. 220; Deianey v. Fox, 1 C. B., N. But see Morton v. Woods, L. R., 4 S. 100; 2 Id. 708. Q. B. 20."., and note (/), ]>ost. (k) Lainson v. Tremcre, 1 A. & E. (//) Sturgeon v. Wingfield, 15 M. & 792. W. 224. 342 Cii. V. S. 22.] ESTOPPEL. *215 plaintiff, who had leased the mines to the company, of which the lessor was a partner at the time of the action, but not at the time he granted the lease (/). Tenant may show landlord's title to be expired. — Delaney i\ Fox. — The tenant may, however, show that his landlord's title has expired (?n) : but where a defendant in an action for use and occupation, had occupied apartments in a house belonging to a wife, and had paid rent to the husband, who subsequently, with the knowledge of the defendant, granted a lease of the whole house to the plaintiff : it was held, that having occupied with notice of the lease, he could not im- peach its validity, nor controvert the plaintiff's title (ii). Upon an information to set aside a lease of charity lands, it was held in Chancery * that the lessees [*215] could not dispute the title by setting up an adverse title whilst they retained possession (o). Tenant may show that other person than claiming assignee of reversion has title. — The rule that a tenant may not dispute his landlord's title applies only to the title of the landlord who let him in ; and the tenant may deny the title of a claiming assignee of a reversion by showing a title in some other person (p). Estoppel as against reversioner. — The interest of a tenant for life and a reversioner are the same, and therefore a lessee who has paid rent to the fii'st, cannot set up title in another person as an answer to an action by the latter after the death of the former {q). A lessee, by executing an indenture of lease, admits a will under which it is recited that the lease was granted (r). A lessee of tolls, under an instrument signed by the persons as trustees, admits they are trus- (/) Francis v. Doe d. Harvey, 4 M. (n) Rennie r. Robinson, 1 Bing. & W. 331. 147. {m) Delaney v. Fox, 2 C. B., N. S. (o) Att.-Gen. v. Ld. Ilotham.S Russ. 768; Neave c. Moss, 1 Bing. 363; 415. Doe d. Jackson v. Ranisbotham, 3 M. (p) Carlton v. Bowcock, 51 L. T., & S. 516; Doe d. Strode v. Seaton, 2 659; and post, Ch. VII., sect. 5. C, M. & R. 728 ; Downes v. Cooper, (7) Doe d. Colemore v. Whitroe, 1 2 Q. B. 256 ; Claridge v. Mackenzie, D. & Ry. 1. 4 M. & G. 143; Doe d. Leeniing v. (?) Bringloe v. Goodson, 5 B.N. C. Skirrow, 7 A. & E. 157. 738. 343 *216 THE LEASE. [Ch. V. S. 22. tees (s). An assignee is estopped by the deed Avhich estops his assignor (t) : and an assignor, by executing the assign- ment in which the original lease is recited, is precluded in an action by the assignee from calling upon him to prove the lease (m) : so an assignee of a void lease by a tenant for life is estopped from disputing the title of the remainder- man, though his assignment was after the death of the tenant for life, and payment to and acceptance of rent by the remainderman, and with notice of that fact (a;). So where a lease was granted by A. and B. as granting parties, and reserved the rent and right of ]-e-entry to a close, it was held that the assignee of the lessor was estopped from show- ing that A. had no interest in the premises (y). In defence of an action of ejectment, it may be sho^^'n that the parties under whom the plaintiff claims had no title when they con- veyed to him, although the defendant himself claims by a conveyance from the same parties, if the latter conveyance was subsequent to that which the defendant seeks to im- peach (5;). Want of title appearing on lease. — It was at one time thought, from Cuthbertson v. Irving (a) and other cases, that when the document of lease showed a want of title in the landlord, there was nothing to estop the tenant from denying that title ; but this doctrine has now been distinctly overruled in Jolly v. Arbuthnot (ft), as was pointed out by the Exchequer Chamber in Morton v. Woods (<•)• [*216] * Effect of estoppels on validity of lease. — In an action for rent, where the title to the land is not in question, tlie defendant is estopped from saying the lease is not a good one ; for the covenant for payment of the rent is good (r/). But he may plead a new substituted tenancy (s) Willington v. Brown, 8 Q. B. (z) Doe d. Oliver v. rowell, 1 A. & 169. E. 531. (0 Taylor V. Nccdliani, 2 Taunt. («) 29 L. J., Ex. 485 ; see, too, 278 ; Barwick d. Mayor, &c., of Kicli- Pargeter v. Harris, 7 Q. B. 708. mond V. Tliompson, 7 T. K. 488; (/>) 4 De G. & J. 224; 28 L. J., Ch. Bryan d. Child v. Winwood, 1 Taunt. 547. 208. (r) L. R., 4 Q. B. 293 ; 38 L. J., Q. (m) Nash V. Turner, 1 Esp. 217. B. 81 ; 9 B. & S. 059; 17 W. U. 414. (x) Johnson v. Mason, 1 Ksp. 89. (d) Monroe v. Lord Kerry, 1 Bro. (//) Parke i-. M'Loughlin, 1 Ir. P. C. 07. Law U., N. S. 186. 344 Ch. V. S. 23.] BOND FOR PERFORMANCE OF COVENANT. *216 from year to year and the determination thereof by notice to quit before the rent chiimed became due ; and that not- withstanding he omitted so to plead in a previous action founded on the same lease or agreement (g). Wliere a tenant for life under a devise, with a leasing power, let to defendant by a lease, not noticing the power ; and after the death of the lessor, a succeeding tenant for life under the same devise brought ejectment against the defendant, on the ground that the lease was not a valid execution of the power ; it was held, that the defendant was not estopped from setting up an outstanding term of years in trustees created by a tenant in fee, from whom the devisor had inherited, as the lessor of the plaintiff himself denied the right of the defendant's lessor to grant the lease (/). Effect of estoppels as to description of premises. — The tenant is not estopped by the description of the lands in the lease, as " meadows," from pleading and proving that they had been converted into arable before the lease, and have been used as such ever since () The. rule rdrrat emptor does not aj)ply to a misrejjresentation of facts within peculiar knowledge of lessor. Irving v. Tliomas, 18 Me. 418, 423, 424 (misrei)resentations aa to tlie income and value of use of a tavern house). (r) Suppresslo i>eri may be ground of rescission. Ciiretien v. Crowley, 2 Q. B. K. (Quebec) 385. 348 Ch. V. S. 25.] CANCELLATION OF LEASE. *218 Co. (?/) is ail important case on this head, being decided on the ground of concealment only. In that case the lessor knew, but did inform the lessee, who had no means of know- ing, that he had no title to part of the lands demised. It was held that the lessee might, if he pleased, be relieved of the lease altogether, that this relief might be given in an action by the lessor for the rent, and further the lessee might, if he pleased, reject that part only to which there was no title, and keep the remainder. It is to be observed, how- ever, that in this case the lessee does not appear to have either entered into possession or paid rent (3). ('/) L. R., C. P. D. 145, and supra (?) See the judgment of Lindley, J. (217). 349 [*219] * CHAPTER VI. OF TENANCIES FOR LESS TERM THAN YEARS, AND OF PERMISSIONS TO OCCUPY. SECT. _ PAGE 1. Tenancy generally .... 219 2. Tenancy from Year to Year 219 3. Tenancy for less than a Year 22-1 4. Tenancy at Will 226 SECT. PAGE 5. Tenancy on Sufferance . . 230 0. Mortgagor and Mortgagee . 232 7. Master and Servant . . . 236 8. Vendor and Vendee . . . 237 Sect. 1. — Tenancy generally. Evidence of tenancy. — In manj' cases, where no express contract of letting has been made, a tenancy may be implied from the acts of the parties,^ especially the occupation and 1 Implied tenancies. — Occupancy otherwise unexplained is prima facie. evidence of a tenancy, Keyes v. Hill, 30 Vt. 759, 765 {per Barrett, J.) ; but liable to rebuttal, Kej'es !•, Hill, supra. If shown to be adverse, the presump- tion is tliereby overcome. W^'inan r. Hook, 2 Me. 337. A judgment debtor disputing validity of levy is not an implied tenant. One who enters and occupies adversely is a trespasser. Krug v. Davis, 101 Ind. 75. A mere occupant without right is not ) Doe d. Rigge v. Bell, 5 T. K. 21 L. J., Ex. 13(5; Geeckie v. Monk, 471 ; and see the cases cited post, p. 1 C. & K. 307 ; Doe d. Monk v. Geec- 221. kie, Id. 307; 5 Q. B. 841 ; Clarke r. (f) Doe d. Pennington r. Taniere, Moore, 1 Jon. & Lat. 723; Burrows 12 Q. B. 998; and see Hill v. South v. Gradin, 1 D. & L. 213. Staffordshire R. Co., 11 Jur., N. S. («) Donellan v. Read, 3 B. & Ad. 192. 89i) ; Foquet v. Moor, 7 Exch. 870. 1 Allen V. Bartlett, 20 W. Va. 46. But see as to effect of holding over after lease for years, post, sec. 2, notes. 2 Neve or old tenancy. — Whether a tenancy, after waiver of notice and agreement for increased rent, is a new tenancy or old one, is question for jury. Lord Inchiquhi v. Lyons, 20 L. R. Ir. 474. '^ Tenancies from year to year distinguished from tenancies at will. — (a) At common law and in all the American states and provinces except Maine and Massucliitsetts parol leases for terms of years create after entry Implied tenancies from year to year. Reeder v. Sayrc, 70 N. Y. 180, 561; Schuyler v. Leggett, 2 Cow. (N. Y.) 600; People v. Rickert, 8 Id. 226; Blumenthal v. Bloomingdale, 100 N. Y. 558, 561 ; Lounsbery r. Snyder, 31 N. Y. 514; Brewing v. Berryman, 2 Pugs. (N. B.) 115; Doe d. Parkinson v. Haubtman, Bert (N. B.) 645; Koplitz v. Gustavus, 48 Wis. 48; Withnell v. Petzold, 17 Mo. App. 669 : Kerr v. Clark, 19 Mo. 132 ; Goodfellow v. Noble, 25 Id. 60; Ridgley v. Stillwell, 28 Id. 400; Strong v. Crosby, 21 Conn. 398; Taggard v. Roosevelt, 2 E. D. Smith (N. Y.) 100 ; Shepherd v. Cummings, 1 Coldw. (Tenn.) 354 ; Dumn v. Rotherniol, 112 Pa. St. 272 ; McDowell v. Simp- son, 3 Watts (Pa.) 135; Williams v. Ackerman, 8 Or. 405; 1 Wash, on Real Prop. sec. 391. (h) Local statutes and derisions. In Indiana all tenancies not otherwise ex- 351 *219 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 2. term (/), which may be determined at the end of the first or any subsequent year of the tenancy, either by the land- (/) How V. Kennett, 3 A. & E. 662. pressed, are tenancies from year to year (Rev. Sts. sec. 5208). Sivan r. Clark, 80 Ind. 57. In Delaware no estate is at will if it can be held from year to year (Laws of Del. Ch. 101, sec. 15) ; but where no term is limited (Ch. 120, sec. 2), ten- ancy is, from year to year, unless of houses or lots, usually let for less time. In Dakota (Civil Code, sec. 1115), unless otherwise expressed, tenancies are for one year, except of lodgings or places where there is a different custom. In Georgia, if no time specified (Code, sec. 2290), they are for one calendar year. In South Carolina (Gen. Sts. sec. 1812), unless otherwise specified, they are for a year. In Quebec (Civil Code, sec. 1608) tenancies without lease are annual, and terminate, if property is a house, May 1st, if a farm, Oct. 1st. In Connecticut (Gen. Sts. sec. 2907) a parol lease reserving monthly rent, and not specifying time of termination, is a lease for one montli. In Rhode Island an indefinite agreement is held to be a tenancy from year to year (Pub. Sts. Ch. 232, sec. 5). In N'ew Hampshire, under the construction of the Statute of Frauds (Gen. Laws of N. H. Ch. 130, sec. 12), parol tenancies not otherwise expressed are primd, facie tenancies at will. Currier r. Perley, 24 N. H. 219, 225, 229 ; Hazeltine v. Colburn, 31 Id. 466, 471 (per Bell, J.) ; Weeks v. Sly, 61 Id. 89. Indeed, in Whitney v. Swett, 22 Id. 10, it was held that such a tenancy was conclusively at will. Justice Bell, however, who gave the opinion, has in two subsequent cases, supra (Currier v. Perley and Hazeltine r. Colburn), as well as Justice Smith (in Weeks i\ Ely), limited tiiis doctrine by saying that ten- ancies from year to \'ear can be created if the facts show such to be the inten- tions. In Maine and Massachusetts, under the Statute of Frauds, as there con- strued, all parol tenancies (definite or indefinite) are conclusivehj tenancies at will. There can be no tenancy from year to year created except by an instru- ment in writing. Rev. Sts. Me. Chap. 73, sec. 10; Pub. Sts. Mass. Chap. 120, sec. 3; Little v. Palister, 3 Me. 6, 15; Davis v. Thompson, 13 Me. 209; Young V. Young, 36 Iil. 133 ; Withers ?•. Larrabee, 48 Id. 570 ; Esty v. Baker, 50 Id. 325; Cunningham v. Halton, 55 Id. 33; Robinson i'. Deering, 56 Id. 357; Wilson V. Prescott, 62 Id. 115; Thomas v. Sanford Steamship Co., 71 Me. 548; Rollins r. Moody, 72 Id. 135; Ellis v. Paige, 1 Pick. (Mass.) 43, 45; Coffin )•. Lunt, 2 Pick. 70; Curtis v. Galvin, 1 Allen (Mass.) 215, &c. Tiiis distinction arose from the construction of the statute in Massachusetts which omits the exception of three years in favor of oral leases {per Wilde, J., in Ellis V. Paige, 1 Pick. (Mass.) 43, 45). The decisions there liave not been followed elsewhere except in Maine. In Missouri, wliere tlie tliree years exception is also omitted, parol tenancies are held to be either from year to year, or at will according to the express or implieil intentions. Tlie Massacliusetts cases have been cited, and dis- tinguished (per Napton, J., in Ridgely r. Still well, 25 Mo. 570) ; or approved (per Bliss, .1., in Mammon v. Doughis, 50 Id, 434, 437), but not followed. It is held (as in most states), th.U parol leases for years, after entry, are from year to year, Kerr /•. Chirk, 19 Mo. 132; (Joodfellow v. Noble, 25 Id. ;552 Cn. VI. S. 2.] TENANCY FROM YEAR TO YEAR. *219 lord or the tenant, by a regular notice to quit (^). lie is substantially a tenant at will ; except that such will can- {(j) Cole Ejec. 20, 441. 60; Riflgely ;•. Stilhvell, 28 Id. 400, 40.3 ; Rcully-y. Murray, 34 LI. 420; other parol teiiiviu'ies from year to year, or at will according to e.xpress or implied contract, Hamnion v. Douglas, 50 Mo. 435; Withnell i\ Petzold, 17 Mo. App. 069; Vegely v. Robinson, 20 Id. 199, 203 {per Phillips, P. J.) ; Ins. Co. V. Nat. Bank, 71 Mo. 58; St. L. & I. M. R. R. Co. v. Ludwig, 6 Mo. App. 584. In Ridgely v. Stillwell, 25 Mo. 570, it was said (by Napton, J.) that " A tenancy at will must be created by express contract." This has not been sustained by later cases above cited. By special statute (Rev. Sts. sec. 3078) parol tenancies of stores, sliops, houses, or other build- ings in cities or villages, are from month to montii. In Iowa (Rev. Code, sec. 2014) and Kansas (Comp. Laws, sec. 3204) occu- pants with consent are prima, facie tenants at will. (c) In the majority of the states tenancies either at will or from year to year may be implied. Squires v. Huff, 3 A. K. Marsh. (Ky.) 18; Sullivan v. Enders, 3 Dana (Ky.) 66; Western Union Tel. Co. v. Fain, 52 Ga. 18; Duke V. Harper, 6 Yerg. (Tenn.) 280. In few, if any, will tenancies from j'ear to year be implied against an express contract. Laxton v. Rosenberg, 11 Ont. 199, 207 ; Humphries v. Humphries, 3 Ired. (N. C.) L. 362; Stedman v. Mcintosh, 4 Id. 291; Say v. Stoddard, 27 Ohio St. 478; Waring v. L. &, N. R. Co., 19 Fed. Rep. 803; Bastow v. Cox, 11 Q. B. 122 ; Walker v. Giles, 6 C. B. 662 ; Dixie v. Davies, 7 Exch. 89 ; Anderson v. Midland R. R. Co., 30 L. J. Q. B. 94._ {d) Reservation of annual rent. — This " is the leading circumstance " indicating a tenancy from year to year. Kent, J., in Jackson /'. Bradt, 2 Caines (N. Y.) 169, 174; Lesley v. Randolph, 4 Rav.'le (Pa.) 123, Hall v. Wadsworth, 28 Vt. 410 ; Silsby v. Allen, 43 Vt. 172 , Hey v. McGrath, 81 Pa. St. 310; Morrill v. Macknian, 24 Mich. 279; Carey v. Richards, 4 West L. Mon. 251 ; Barlow v. Wainwriglit, 22 Vt. 88; McClenaghan v. Barker, 1 Q. B. (Ont.) 26; Hammon V. Douglas, 50 Mo. 434, 437 (per Bliss, J.) ; Withnell v. Petzold, 17 Mo. App. 673, 674 (per Rombauer, J.) ; Ins. Co. v. Nat. Bank, 71 Mo. 58. (e) Annual rent not conclusive. — It will not control a contrary agreement. Stedman v. Mcintosh, 4 Ired. (N. C.) L. 291 , Humphries v. Humphries, 3 Id. 363 ; Say v. Stoddard, 27 Oliio St. 478 ; Walker v. Giles, 6 C. B. 662 ; Dixie v. Davies, 7 Exch. 89; Anderson v. Midland R. R. Co., 30 L. J. Q. B. 94. (/) Monthli] rent. — This sometimes indicates a monthly tenancy. Anderson V. Prindle, 19 Wend. (N. Y.) 391, 23 Id. 616; O'Neil v. Wells, 2 Russ. & Ches. (N. S.) 205; Warner v. Hale, 65 111. 395, Huyser v. Chase, 13 Mich. 98; Woodrow v. Michael, 13 Id. 187; People v. Darling, 47 N. Y. 666; Hammon v. Douglas, 50 Mo. 434, 437 (per Bliss, J.) ; Withnell i'. Petzold, 17 Mo. App. 673, 674 (per Rombauer, J.). (g") Monthhj rental; nnder yearhj tenancy. — Where circumstances indicate a yearly tenancy, monthly rent payments will not change it. Scully v. Mur- ray, 34 Mo. 420 ; Ridgely v. Stillwell, 25 Mo. 570; Lloyd v. Cozens, 2 Ashm. (Pa.) 131. (A) Oral leases for vionths will create, ordinarily, tenancies from month to month. Geiger v. Braun, 6 Dalj' (N. Y.) 506. And a tenant, holding over after a lease for a month, ordinarily becomes a tenant from montli to month. 353 *220 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 2. not be determined by. either party Avithout due notice to quit (K). If no such notice be given the tenancy will con- tinue from year to year, for any number of years [*220] until * surrendered, or extinguished by the Statute of Limitations, or the lessor's title ceases (f). The (/i) Parkes d. Walker ;•. Constable, (i) Smith L. & T. 30, 441. 3 Wils. 25 ; Smith L. & T. 24 (2nd ed.). Prickett v. Ritter, IG 111. 96; Macgregor v. Defoe, 14 Ont. 87, 92. But in Shaffer v. Sutton, 5 Binn. (Pa.) 228, a lease for nine months was held a ten- ancy from year to year. ((') Periodical rent pajiments; presumptions. — Weekly, monthly, quarterly, or yearly paj'ments indicate, in absence of express contract or controlling cir- cumstances, tenancies from week to week, month to month, quarter to quarter, or year to year. Lord Ellenborough, in Doe v. Puffin, 6 Esp. 4; Walworth, Chan., in Prindle v. Anderson, 23 Wend. (N. Y.) 616,019; Wilson, C. J., in Macgregor v. Defoe, 14 Ont. 87, 92, &c. ( /) The erection of valuable improvements is sometimes evidence that the tenancy is from year to year. Doe d. Macqueen v. Hunter, 1 Kerr (N. B.) 518; Boudette v. Pierce, 50 Vt. 212. (^) Purposes of tenancy often determines its character. A lease of a farm, &c., requiring a year's time, is usually from year to year. Carey v. Richard, 4 West. Law Mon. 251, 265, 270 {per Wm. Lawrence, J.) ; Hunt i'. Morton, 18 111. 75; Hanchett v. Whitney, 2 Aik. (Vt.) 240; Leavitt v. Leavitt, 47 N. H. 329; Hammon v. Douglas, 50 Mo. 434, 437 {per Bliss, J.); Withnell V. Petzold, 17 Mo. App. 669, 673, 674 {per Rombauer, J.). (/) Holding over. — A tenant for j'ears holding over with consent is (in absence of new agreement) held to continue under the original terms so far as applicable to a yearl}' tenancy. Wilgus r. Lewis, 8 Mo. App. 336 ; Ins. Co. V. Nat. Bank, 71 Mo. 58 ; Withnell v. Petzold, 17 Mo. App. 673 {per Rom- bauer, J.) ; Hammon v. Douglas, 50 Mo. 434 {per Bliss, J.) ; St. L. & I. M. R. R. Co. V. Ludwig, 6 Mo. App. 583; Iliiliard v. Gemmell. 10 Ont. 504, 505 {per Rose, J.) ; Conway v. Starkweather, 1 Denio (N. Y.) 113 ; Doe d. Heath- cote I-. Hughes, 3 Pugs. & Bur. (N. B.) 368; Condon v. Barr, 47 N. J. L. 113, 114,115 {per Knapp, J.) ; Miller ?j. Ridgely, 19 111. App. 306; McKinney v. Peck, 28 HI. 174; Pickett ;•. Bartiett, 13 Daly (N. Y.) 229, 230 {per Daly, Ch.J.) ; Smith )'. Allt, 7 Id. 492, 493 {per Daly, Ch. J.) ; Schuyler v. Smitii, 51 N. Y. 309; Critchficld r. Remaley, 21 Neb. 178; Sullivan p. Gary, 17 Cal. 80; Vrooman v. McKai?, 4 Md. 45o"; Hall v. Wadsworth, 28 Vt. 410 ; Allen V. Bartiett, 20 W. Va. 4() ; WollTe v. WoHTe, 69 Ala. 549; Witt v. Mayor of N. Y., 6 Robt. (N. Y.) 441 ; Hall v. Myers, 43 Md. 446 ; Burbank v. Dyer, 54 Ind. 392; Doe d. Peters v. Pelletier, 4 Allen (N. B.) 33; Sturdee v. Merritt. 3 Kerr (N. B.) 641. As to tenancies arising from holding over, see, also, post. (m) [joases defectivel ij executed. — Tenancies from year to year arise from occupation under them. Doe ^/. Pcnningt(m r. Taiiicre, 12 Q. B. 998 (seven yearf' lease not under seal) ; Fougera »;. Colin, 43 Hun (N. Y.) 464; Stew- art V. Apel, 5 Iloust. (Del.) 189; Lnughran v. Smith, 75 N. Y. 206. 354 Ch. VI. S. 2.] TENANCY FIIOM YEAR TO YEAR. *220 death of either party will not determine it (^h) ; unless, indeed, the lessor be tenant for his own life only, and the lease is not made pursuant to any statute or power (I). Such lease gives one time of continuance. — " Leases from year to year," observes Mr. Preston, " give only one time of continuanee. That time, however, may be confined to one year, or extended to several years, according to circum- stances attending the tenancy in its progress. In the first f)lace, the lease is for one year certain, and after the com- mencement of every year, or perhaps after the expiration of that part of the year in which a notice of determining the tenancy may be given, it is a lease for the second year ; and in consequence of the original agreement of the parties every year of the tenancy constitutes part of the lease, and eventually becomes parcel of the term : so that a lease, which in the first instance is only for one year certain, may in the event be a term for one hundred years or more. Under this species of tenancy the law considers the lease, with a view to the time which has elapsed, as arising from an estate for all that time, including the current year ; and with a view to the time to come, as a lease from year to year. For as all the time for which the land may be held under a running lease is originally given, and in effect passes, by the same instrument or contract, the whole time is consolidated, and every year as it commences forms part of the term " (w). Settlement cases. — The renting of a tenement from three months to tlu-ee months, or for an indefinite peiiod, and an occupation under it and payment of rent for a year or more, constitute a tenancy from year to year, so as to confer a settlement under the Poor Law (w). Creation by express contract. — Where parties usually agree (k) Maddon d. Baker t'. White, 2 M. & W. 778 ; 14 & 15 Vict. c. 25, T. R. 159; Doe d. Sliore v. Porter, s. 1. 3 T. R. 13; Mackay r. Mackretli, 4 (m) 3 Prest. Conv. 70, 77. And Doug. 213; 2 Ciiit. R. 401; 15 Ves. see Tomkins v. Lawrence, 8 C. & P. 241 ; Doe d. Hull v. Wood, 14 M. & 729 ; Cattley v. Arnold, supra. W. 682 ; Cattley v. Arnold, 1 J. & H. («) Rex v. Herstmonceau.x, 7 B. & 651; 28 L. J., Ch. 352; Bootheroyd C. 551; Hastings Union v. Guardians V. Woolley, 5 Tyr. 522. of St. James, Clarkenwell, L. R., 1 Q. (/) Doe d. Thomas v. Roberts, 16 B. 38; 35 L. J. JI. C. 05. 355 *221 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 2. for a tenancy " from year to year," and possession is taken, such a tenanc}' is thereby created, and may be determined at the end of the first or any subsequent year of the ten- ancy by a regular notice to quit (o). But where a tenancy is created "for one year certain, and so on from year to year " (which is frequently done by mistake), it enures as a tenancy for two years at the least, and cannot be determined at the end of the first year (jt>) ; though it may be deter- mined by notice to quit at the end of the second or any subsequent year of the tenancy. A demise " for [*221] *a year," or "for one year certain," does not create a tenancy from year "to year, nor require any notice to quit at the end of the year (9').^ Implied contract by entry under contract for lease or void lease. — Prior to Walsh v. Lonsdale, the doctrine was firmly established, that where a person is let into possession under a mere agreement for a future lease, he becomes only a tenant at will; but it was equally well established, that when he pays, or expressly agrees to pay, any part of the annual rent thereby reserved, his tenancy at will changes into a tenancy from year to year, upon the terms of the in- tended lease so far as they are applicable to and not incon- sistent with a yearly tenancy (r). That the freehold interest was, subsequent to the making of the agreement, assigned to another person, made no difference in law (s). The effect of Walsh V. Lonsdale (ss) upon this doctrine has already been considered,^ and here it only remains to point out that (0) Doe d. Clarke v. Smaridge, 7 9.37 ; and see Wright v. Tracy, Ir. R., Q. B. n.-.7 ; Doe d. Plunier v. Mainby, 8 C. L. 478. 10 Q. B. 472. (?) Doe d. Thomson v. Amey, 12 {}j) Doe d. Chadborn v. Green, 9 A. & E. 476. A. & E. 058; Reg. v. Chawton, 1 Q. (.s) See Arden v. Sullivan, 14 Q. B. 247. B. 832 ; and compare Wyatt v. Cole, (7) Cobb V. Stokes, 8 East, 358, 36 L. T. 61.S. 301 ; Wilson v. Abbott, 3 B. & C. 89; (s.9) 21 Ch. D. !) ; and see ante, Ch. Johnstone v. lludlestone, 4 B. & C. IV. sect. 1, p. 86. 1 Logan I'. Ilorron, 8 S. & R. (Pa.) 4.50 ; Van Cortlandt v. Parkhurst, 5 .Johns. (N. Y.) VM. - Walsh ('. Lonsdale. — The dirUnn of .Icssol, M. R., would not apply to a void lease, for that is not oidinarily a lease in equity. 356 Ch. VI. S. 2.] TENANCY FROM YEAR TO YEAR. *222 the doctrine applied to entry upon a void lease (sss), as well us to entry upon an agreement for a lease, and that Walsh V. Lonsdale has no application to entry under a void lease, except so far as it may be construed as an agreement for a future lease. Terms applicable to yearly tenancy. — A stipulation for two years' notice to quit is inapplicable to a yearly tenancy within the meaning of the doctrine above stated (^). So is a covenant to build ; or to do such material repairs as are not usually done by tenants from year to year (ii). But a stipulation, in an agreement for a lease for more than three years, to keep the premises in good tenantable repair during the tenancy, was held applicable (x) ; as also a stipulation, in a lease not by deed, for seven years, to paint at the end of the seventh year (y) ; and a stipulation " to keep open the shop, and use the best endeavours to promote the trade of it during the tenancy" (2). So a stipulation that the tenant shall be paid for tillages on the expiration of his ten- ancy (a) ; although, perhaps, it may not apply to a new reversioner, who accepts rent in ignorance of such a stipula- tion (i). A proviso for re-entry or non-payment of rent or non-performance of covenants is applicable to an implied yearly tenancy (c). Such tenant is entitled to the usual notice to quit ; but at the expiration of the term mentioned in the agreement the implied tenancy from year to year will cease without any notice to quit ((7). * Rebutting of implied terms of holding. — The im- [*222] plied contract can of course be rebutted, and there must be some evidence given of it. Actual payment of rent {sss) Doe d. Rigge v. Bell, 5 T. R. {h) Oakley v. Monck, 3 H. & C. 471 ; 2 Sm. L. C. 8th ed. 706 ; 34 L. J., Ex. 137 ; L. R., 1 Ex. (0 Tooker v. Smith, 1 H. & N. 732. 159; 4 H. & C. 251 ; 35 L. J., Ex. 84. (m) Bowes V. CroU, 6 E. & B. 264. (c) Thomas v. Packer, 1 H. & N. (x) Richardson v. Gifford, 1 A. & 669. E. 52. {d) Doe d. Tilt v. Stratton,4 Bing. (y) Martin v. Smith, L. R., 9 Ex. 446; Doe d. Bramfield v. Smith, G 50; 43 L. J., Ex. 43; 30 L. T. 268; East, 530; Berry v. Lindley, 3 M. & 22 W. R. 336. G. 498, 514 ; Doe d. Davenish v. Mof^ (2) Sanders v. Karnell, 1 E. & F. fatt, 15 Q. B. 257, 265; Tress v. Sav- 356. . age, 4 E. & B. 36. (a) Brocklington v. Saunders, 13 W. R. 46, Q. B. , 35T *222 TENANCIES EOR LESS THAN YEARS, ETC. [Ch. VI. S. 2. is not always essential, although that is perhaps the clearest proof (e). Where the payment of the rent is allowed to stand over by mutual consent, that is sufficient (/). Pay- ment of rent does not of itself create a tenancy from year to year, but is only evidence from which a jury may find the fact (^). Where payment of rent unexplained would ordi- narily imply a yearly tenancy upon the previous terms, it is open to the payer or receiver of such rent to prove the cir- cumstances under which such payment was made, for the purpose of repelling such implication (Ji). Where tenant holds over. — Where a tenant for a term of years holds over after the expiration of his lease, he becomes a tenant on sufferance ; ^ but when he jjays, or expressly (e) Cox i\ Bent, 5 Bing. 185; Vin- ((/) Finley ?;. Bristol and Exeter R. cent V. Godson, 24 L. J., Ch. 122; Co., 7 Exch. 415; Jones v. Shears, 4 Smith L. & T. 27 (2nd ed.). A. & E. 832. (/) Cox V. Bent, 5 Bing. 185; Vin- (A) Doe d. Lord v. Crago, 6 B. C. cent V. Godson, 24 L. J., Ch. 122 ; 90 ; Oakley v. Monck, supra. Smith L. & T. 27 (2nd ed.). 1 Holding ov)• It will also be subject to the custom of the country, so far as such custom is not excluded by the terms of the expired lease ((/). It may be determined by notice at the end of the first or any subsequent year of the tenancy (r), or under an implied (0 Bisliop V. Howard, 2 B. & C. East, 312; Roe d. .Ionian v. Ward, 1 100; Hyatt v. Griffiths, 17 Q. B. 505; H. Blac. 9(5 ; Doe d. Martin v. Watts. Chit, on Contracts, 295 (7th ed.). 7 T. R. 83; Doe d. Tucker v. Morse, {k) Mayor of Tiietford v. Tyler, 8 1 B. & Ad. 3(55. Q. B. 95; 2 Smith L. C. 90 ((ith ed.). (/>) Di^fby v. Atkinson, 4 Camp. (/) Doe d. Lord v. Crafjo, (5 C. B. 90. 275. (;h) Oakley v. Monek, 3 H. & C. {q) llutton v. Warren, 1 M. & W. 700 ; .34 L. J., Ex. 137 ; L. R., 1 Ex. 40(5. 169; 4 H. & C. 251 ; .35 L. .J., Ex. 84. (r) Doe d. Clarke v. Smaridpte, 7 (n) See Wyatt v. Cole, .30 L. T.013. Q. B. 957 ; Doe d. riumcr i;. Mainby, (o) Doe d. Castleton v. Samuel, 5 10 Q. B. 473. Esp. 173; Doe d. Spicer v. Lea, 11 3G0 Cii. VI. S. 2.] TENANCY FROM YEAR TO YEAK. *223 proviso for re-entry similar to that contained in the expired lease (s). Acceptance of rent by remainderman. — If a remainderman accept money, or anything else reserved as rent in a lease granted by the previous tenant for life, which became void on the death of such tenant for life, he does not thereby confirm and establish the lease for the residue of the term therein expressed to be granted (without a previous memo- randum in writing pursuant to 13 Vict. c. 17, s. 1), but he creates a new implied tenancy from year to year as between him and the tenant on the old terms, so far as they are ap- plicable to and not inconsistent with a yearly tenancy, and the tenant is entitled to the usual notice to quit (f) : unless, indeed, the rent reserved be so grossly inadequate, with reference to the annual value of the propert}^, that the jury ought to presume and find that no such new tenancy was intended to be created (it). So any special and unusual terms, of which the reversioner was ignorant when he ac- cepted the rent, will not bind him (.r), unless the Settled Land Act applies. Any such new tenancy will be deemed to have commenced from the same day of the year as the original term, and the notice to quit should be given accord- ingly 0/)- By attornment to prior mortgagee. — If a mortgagee induce or compel a subsequent tenant of the mortgagor to attorn to and pay him rent, that will not operate to confirm the lease for the whole time thereby .granted, but will create between the mortgagee and the tenant a new tenancy from year to year (z) ; and such new tenancy will be subject to the terms (s) Thomas v. Packer, 1 H. & N. (x) Oakley v. Monck, 3 H. & C. 660; Hayne v. Gumming, 16 C. B., 706; 34 L. J., Ex. 137; L. R., 1 Ex. N. S. 421. 159 ; 4 H. & C. 251 ; 35 L. J., Ex. 84. (0 Doe d. Martin i-. Watts, 7 T. R. As to application of Settled Land 85 ; Doe d. Tucker v. Morse, 1 B. & Act, see p. 9, ante. Adol. 365; Smith L. & T. 24, 25 (y) Roe d. Jordan v. Ward, 1 H. C2nd ed.). Blac. 06; Doe d. Collins v. WcUer, 7 (u) Doe d. Brune v. Prideaux, 10 T. R. 478. East, 158; Denne d. Brune v. Raw- (z) Doe d. Hughes r. Bucknell, 8 lins. Id. 261 ; Doe d. Lord v. Crago, C. & P. 567 ; Doe d. Prior v. Ongley, 6 C. B. 90. 10 C. B. 25 (3rd point). 361 *224 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 3. and conditions of the lease, so far as the same are applicable to and not inconsistent with a yearly tenancy (a). Not by agreement to pay an increased rent. — If, whilst a tenant from year to year is in possession of lands under an agreement reserving a certain rent, he agrees with [*224] his landlord to * pay an increased or reduced rent, this will not have the effect of then creating a new tenancy (i). Underleases. — A demise by a tenant from year to year to another also to hold from year to year, is in legal operation a demise from year to year only during the continuance of the original demise to the intermediate landlord (c). A tenant from year to year, underletting from 3'ear to year, has a reversion which entitles him to distrain (c?). If a tenant from year to year make a lease for twenty-one years, such term will cease whenever the tenancy from year to year is legally determined (e). Sect. 3. — Tenancy for less than a Year. — Lodgings. In leases of houses and apartments for an indefinite period less than a year, the hiring will be construed to be quarterly, monthly or weekly, according to the circumstances of each case and the custom of the place or country.^ Of these circumstances the principal appears to be the payment of rent: therefore, where a tenancy was created of wharfs, warehouses, &c., at a certain rent per quarter, the tenancy to commence on the 14th June, the tenant paying a quarter's rent on that day and giving security for the payment of a quarter's rent in advance during his tenancy, it Avas held that (a) Cole Ejcc. 445. (r) Pike v. Eyre, 9 R. & C. 009. (/;) Doo d. Alonck ;'. Gecckie, 5 Q. (d) Curtis v. Wheeler, Moo. & M. B. 841; 1 C. & K. .307; Clarke v. 493. Moore, 1 .Ton. & Lat. 723; Crowley (e) Mackay v. Mackreth, 4 Doug. V. Vitty, 7 Exch. 310; liurrowes v. 213. Gradin, 1 I). & L. 213. ^ Lease at will V7ith monthly rent is from month to month. Orser r. Vernon, 14 C. P. (Ont.) 673; O'Neil v. Wells, 2 Russ. & dies. (N. S.) 20r) Warner v. Hale, 05 111. .305; Huyscr v. Chase, 13 Mich. 08; Woodrow i: Miciiael, 13 Id. 187; contra, Ridgely v. Stillwell, 25 Mo. 570. 362 Cn. VI. S. 3.] TENANCIES FOR LESS THAN A YEAR. *225 he became tenant from quarter to quarter and not from year to year (/). So where the tenant is '•'•always to be subject to quit at three months' notice " he will be deemed a quarterly tenant (^). Where premises are let, not for any definite period, but the tenant is to give up possession at any time on one month's notice, that creates a tenancy from month to month (A). So a demise of houses or of lodgings at a monthly or weekly rent affords a presumption of a monthly or Aveekly tenancy (i). Month in any legal document means lunar ^ month, unless calendar month be specified (Ji), or there be admissible evidence to show that a calendar month was intended (Q. Where a person hired a furnished house for three lunar months, and a receipt was given for the rent for that period, but he continued in possession afterwards, it was held that a jury were warranted in finding that the subsequent occupation *was on [*225] a weekly hiring (wz). By agreement on the 19th of April, certain premises were let at the yearly rent of 42/., payable quarterly ; the first payment, 11. ISs. GcZ., to be made on the 24th of June next, being the proportion of rent due up to that time. The lessee was to enjoy at the said rent until one of the parties should give to the other six months' notice to quit, and at the expiration of " any " such notice to leave the premises in as good condition, &c. This was held to be a half-yearly tenancy, commencing from the 24th of June ; and that a notice to quit given at Midsummer and expiring at Christmas was valid (y;). Where the de- fendant hired of the plaintiff apartments in his dwelling- house at a fixed rent, payable half-yearly, and entered into (/) Wilkinson v. Hall, 3 Bing. N. (A) Simpson v. Margitson, 11 Q. B. C. 508. 23. {(j) Kemp V. Derrett, 3 Camp. 510 ; (/) lb. and see as to agreement for Cole Ejec. 31. hire of furniture, Hutton v. Brown, (/() Doe of. Landsell v. Gower, 17 45 L. T. 343. Q. B. 589. (,„) Towne v. Campbell, 3 C. B. (() Huffell V. Armitstead, 7 C. & P. 921. 56. And see as to what notice to (m) Doe d. King v. Graton, 18 Q. B. quit is required, post, Chap. VIII., 496; 21 L. J., Q. B. 276. Sect. 7. ^ In tlie United States, unless otherwise specified, a calendar month. See post. 363 *225 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 3. possession at ]Michaelmas, 1822 : and at Lady-day, 1823, paid one half-year's rent, and at the Midsummer following gave up possession without having given notice to quit ; but at Michaelmas in the same year he paid another half-3^ear's rent, though at Lady-day, 1824, he refused to pay a third half-year's rent ; in an action for use and occupation for that half-year's rent, it was held that a tenancy from jqav to year could not be inferred from these facts, and therefore that the action was not maintainable (o). A general letting at a yearly rent, though payable half-yearly or quarterly, or an accei^tauce of yearly rent or rent measured by any aliquot part of a year, is evidence of a taking from year to year (^^). Where premises are let, at a yearly rent payable weekly, with power to determine the tenancy at three months' notice from any quarter day, that creates a yearly tenancy, deter- minable as agreed (g). Furnished house. — Where a house is let ready furnished the rent is deemed to issue out of the realty, and not partly out of the furniture (r). Lodgings. — Lodgings may be let in the same manner as lands and tenements. A lodger is a tenant if the premises are let to him (s)-^ Protection of lodger's goods from distress. — Prior to the Lodger's Goods Protection Act, 1871, care had to be taken by the lodger to ascertain that the rent of the house had been paid up, as if not, the goods of the lodger would be liable to a distress for rent due from his own landlord. But (o) Wilson V. Abbott, 3 B. & C. 88. (s) Cook r. Humber, 11 C. B., N. (p) Kichardson ;;. Langridge, 4 S. 33 ; 31 L. J., C. P. 73. As to Taunt. 128; Doe d. Hull v. Wood, executory agreeintMit to let lodgings, 14 M. & W. 082. see ante, p. 87. As to " lodger " fran- (7) Rex V. Hcrstmonceaux, 7 B. & chise, see Bradley v. Baylis, L. R., 8 C. 551. Q. B. D. 105; C. A.; Ancketill i;. (»•) Newman v. Andcrton, 2 Bos. & Baylis, L. R., 10 Q. B. 1). 577. P. New R. 224. ' Lease of apartments of which lessee has exclusive possession creates a tenancy. I'orlcr r. Merrill, \'2\ Mass. 534. Board and lodgings. — In Wilson v. Martin, 1 Denio (N. Y.) 002, and White r. MayiKird, 111 Mass. 250, it was lield that a contract for hoard and lodgings in a boardnig-houHc, though with specified rooms, was not a tenancy. 864 Ch. VI. S. 4.] TENANCY AT WILL. *226 that act, which is fully set out hereafter (t), provides a simple process for freeing the lodger's goods from a distress of this kind. Previously to taking the premises, however, it may sometimes be prudent to make inquiries of the tax- gatherer and collector of the parochial rates, as if distresses be levied * for them, it may cause consid- [*226] erable inconvenience and annoyance to the lodger, although his goods are not liable to such distresses. Use of knocker, door bell, &c. — A lodger has a right to the use of the door bell, the knocker, the skylight of the staircase, and the water-closet, unless it be otherwise stipu- lated at the time of taking the lodgings ; therefore if the landlord deprive the lodger of the use of either, an action lies (h). Lodgings to prostitutes. — If a person let lodgings to an immodest woman to enable her to consort with the other sex, or if not knowing her habits at the time of letting, but becoming acquainted with her habits afterwards, he permits her to continue his tenant, he cannot recover in an action for the lodgings so let ; but if the woman merely lodge in the house, and receive her visitors elsewhere, the rent may be recoverable (x). Larceny of lodger's goods. — A lodging-house keeper is not responsible to his lodger if property of the latter be stolen from his apartments, either by another lodger or by a third person : the principle is, that the lodger must himself take care of his own goods ; there is a distinction in this respect between an innkeeper and a lodging-house keeper (?/). Sect. 4. — Tenancy at Will. What constitutes a tenancy at -will. — A tenancy at will is where lands or tenements are let by one man to another, to hold at the will of the lessor ; in this case the lessee is called (t) Chap. X., Sect. 7 (f). Moo. 251 ; Girardy v. Eicliardsoii, 1 (w) Underwood v. Burrows, 7 C. & Esp. 13. P. 26. Oy) Holder v. Soulby, 8 C. B., N. S. (a:) Appleton v. Campbell, 2 & P. 254 ; 29 L. J., C. P. 246 ; Dansey v. 347; Jennings v. Throgmorton, Ry. & Kichardson, 3 E. & B. 144; Clench v. Dr. Arenberg, 1 C. & E. 42. 365 *226 TENANCIES FOR LESS THxVN YEARS, ETC. [Ch. VI. S. 4. tenant at Avill, because he has no certain or sure estate, for the lessor may put him out at any time he pleases (z).i (c) Lit. s. 68 ; Cole Ejec. 448. 1 Tenancy at •will. — (a) ffow created. — It maybe created by writing, Murray v. Clierrington, 99 Mass. 229, Say v. Stoddard, 27 Ohio St. 478; or by parol. Button v. Colby, 3o Me. 505 ; Goodenow v. Allen, 08 Id. 308; expressly, Laxton v. Rosenberg, 11 Ont. 199; Humphries v. Humphries, 3 Ired. (N. C.) L. 362 ; Stedman v. Mcintosh, 4 Id. 291 ; Orser v. Vernon, 14 C. P. (Ont.) 673; or impliedl;/, Jiickson r. Bradt, 2 Caines (N. Y.) 169; Rich v. Bolton, 46 Vt. 84 ; Herrell v. Sizeland, 81 111. 457. (6) Local decisions and statutes. — In Maine and Massachusetts all oral leases are tenancies at will. Ellis v. Paige, 1 Pick. (Mass.) 43 ; Coffin v. Lunt, 2 Id. 70; Curtis i'. Galvin, 1 Allen (Mass.) 215; Curtis v. Treat, 21 Me. 525; Cun- ningham V. Holton, 55 Id. 33 ; White v. Elwell, 48 Id. 360 ; Page i-. McGlinch, 63 Me. 472. In New Hampshire they are prima facie tenancies at will. Whitney v. Swett, 22 N. H. 10 (which holds that they are conclusively so) ; Currier v. Pcrley, 24 Id. 219, 225, 229 (per Bell, J.) ; Hazeltine v. Colburn, 31 Id. 466, 471 {per Bell, J.) ; Weeks v. Sly, 61 Id. 89 (per Smith, J.). In loica (Rev. Code, sec. 2014) and Kansas (Compiled Laws, sec. 3204), occupants with consent are presumed to be tenants at will until the contrary is shown. In Indiana (Rev. Sts. sec. 5208) a tenancy is conclusively from j-ear to year, unless expressly made at will. In South Carolina (Gen. Sts. sec. 1812) leases not otherwise stipulated are held to be for a year. In Delaware (Laws of Del. ch. 101, sec. 15) no estate is at will if it can be lield from year to year. Where no term is limited (ch. 120, sec. 2), the ten- ancy from year to year, except as to houses and lots, usually let for less time. In Georgia (Code, sec. 2290), if no time is specified, the tenancy is for a calendar year. In Dakota (Civil Code, sec. 1115) tenancies not otherwise expressed, except as to lodgings and places where there is a different custom, are for one year. In Quebec tenancies without leases are annual (Civil Code, sec. 1()57). In Rhode Island indefinite tenancies are from year to year (Pub. Sts. ch. 232, sec. 5). In Missouri tenancies not created by writing, of stores, shops, houses, or other buildings in cities or villages, are by statute (Rev. Sts. sec. 3078) from month to month. Those not affected by statute (whether created by parol or by holding) arc from year to year or from month to month, according to the presumed intentions. Withnell v. Petzold, 17 Mo. App. 073, 074 (;)(/• Rom- bauer, J.) ; Hammon v. Douglas, 50 Mo. 434, 437 {per Bliss, J.). (c) Generally. — In the provinces and majority of the states it is a question upon the particular facts, whether the tenancy is at will or from year to year, time of rent payments, j)urposes of tenancy, erection of improvements, being leading circumstances. The presumption naturally is that continuance after a term is from year to year. The terms, however, are frequently clianged. Sometimes a tenancy for years is changed into one from month to month, sometimes into one at will. Termination. — See post, Chap. VIII. sec. 1, notes. 3GG Cii. VI. S. 4.] TENANCY AT WILL. *227 Either party may at any time determine a strict tenancy at will, although expressed to be held at the will of the lessor only (a).^ Such tenancy must be determined by a demand of possession or otherwise before an action of ejectment can be maintained against the tenant (6). The granting of a lease to a third person by the lessor of a tenant at will, though it determines the tenancy at will as against the lessor, does not give him such a right of entry as is contem- plated by 3 & 4 Will. 4, c. 27, s. 2 (c}. AVhere there is a tenancy at will, at a fixed rent, such rent may be distrained for (c?). Where there is no such fixed rent an action for use and occupation may be maintained (e). How created. — Where a person lets land to an- other without limiting any certain * or determinate [*227] estate, a tenancy at will is thereby created (/)• A person who lives in a house rent free, by the sufferance of (a) Co. Lit. 55 a; Smith L. & T. E. & E. 614; 30 L. J., Q. B. 94; Doe 17 (2nd ed.). d. Davies v. Tliomas, 6 Exch. 858. (6) Cole Ejec. 58, 453. (e) Chap. XIV., post. (f) Hogan t'. Hand, 2 W. R. 673 ; 4 (./") Com. Dig. tit. Estates, (H. 1) ; L. T. 465, P. C. Richardson v. Langridge, 4 Taunt. (f/) Anderson v. Midland R. Co., 3 128 ; Smitli L. & T. 20 (2nd ed.). (d) Contingent tenancies, — Tenancies at will are sometimes made subject to contingencies, the happening or expiration of which terminate them without notice. See post, Chap. VIII. sec. 1, note 2, and sec. 2, notes. Tlie subject of conditional limitations, both upon tenancies at will and other tenancies, is there examined and instances are given. It is quite doubt- ful if a tenancy at will can be limited conditionally in Maine. The statute there prohibits the termination of tenancies at will in any way but by the statutory notice to quit, or by mutual consent. Rev. Sts. Me. ch. 94, sec. 2 ; Cunningham v. Ilorton, 57 Me. 420; Goodenow v. Allen, 68 Me. 308; but see Sullivan v. Carberry, 67 Id. 531. (See notes upon "Tenancies . . . dis- tiuguisht'd," &c., and " Holding over," sec. 2, ante.) 1 Tenancies strictly at will. — Notice to quit is not necessary at com- mon law to terminate a strict tenancy at will. Jackson v. Bradt, 2 Caines (N. Y.) 169; Jackson v. Rogers, 2 Caines Cas. (N. Y.) 314, 318 ; Rich v. Bol- ton, 46 Vt. 84 ; Phillips v. Covert, 7 Johns. (N. Y.) 1, 4 (per Kent, C. J.) ; 4 Kent's Com. (13th ed.) sec. 114. Such tenant, however, is entitled to reasonable time to remove his family and effects, and to free ingress and egress to harvest crops. Currier v. Earl, 13 Me. 216, 224 (/w Weston, C. J.) ; Ellis v. Paige, 1 Pick. (Mass.) 43; Curt V. Lowell, 19 Id. 25, 26, 27 (per Wilde, J.), and statutory notice is now usually required. See post, Chap. VIII. sec. 7, note, " The Shorter Tenancies " 367 *227 TENANCIES FOE LESS THAN YEARS, ETC. [Ch. VI. S. 4. tlie owner, is a tenant at will (^). A mere permis.sion to occupy land constitutes a tenancy at will only (A). An interest of freehold or quasi freehold character cannot be created orally or by a mere written agreement (not under seal) : a person, therefore, holding under such an agreement is a tenant at will, and (after determination of such tenancy) removable by ejectment, without prejudice to his equitable rights (Q. Courts of law have of late jxars leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at Avill, but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved (A;), If an agreement be made to let premises so long as both parties please, and reserving a compensation accruing de die in diem, and not referable to a year, or any aliquot part of a year, it does not create a holding from year to year, but a tenancy at will strictly so called ; and though the tenant has expended money on the improvement of the premises, that does not give him a right to hold them until he be in- demnified (?). If one demise a tenement to another, except- ing the new house for his habitation when he pleases to stay there, and at other times for the use of the lessee ; the lessee has the new house as tenant at will (««). The words " I give you a close to enjoy as long as I please, and to take again when I please, and you shall pay nothing for it," create a tenancy at will Qti). So a party having become tenant to two others at their u'ill and pleasure^ at the rate of 25Z. 4s. per annum, payable quarterly, and having re- mained in possession under this agreement for two years, and paid a year's rent, after which the lessors distrained for a quarter's rent, was held to be tenant at will and not from (7) Rex V. Collctt, Huss. & Ry. C. Doe d. Hull v. Wood, 14 M. & W. C. 498; Hex v. .Tol)linK, M. •'')2r) : Doe ()82; Anderson v. Midland R. Co., 30 (1. (Jroves V. Grove.s, 10 Q. IJ. 48(5. L. J., Q. B. 94. (/<) Doc d. Hull V. Wood, 14 M. & (/) Richardson v. Lan{:cridge, 4 W. (!82. Taunt. 1'28. (i) Dossce V. East I. Co., 8 W. R. (w) Cudlip v. Rnndall, 3 Salk. 245, P. C. lf)0. (/■) Tinimins t-. Rawlinson, 3 Rurr. (h) Rex v. Fillonglcy, Cald. 509. IGOO; 1 W. Blac. 533; Co. Lit. 55; 3G8 Ch. VI. S. 4.] TENANCY AT WILL. *228 year to year (o). If a tenant whose lease has expired be permitted to continue in possession pending a treaty for a further lease, he is not a tenant from year to year, but a tenant strictly at will ( p) : it is the same if he be admitted tenant pending a treaty for purchase, which is afterwards broken off ((/).^ Entry under void lease. — If a man enter under a void lease, he is not a disseisor, but a * tenant at [*228] will (r), under the terms of the lease in all other respects except the duration of time (s) : and when he pays or agrees to pay any of the rent therein expressed to be reserved he becomes a tenant from year to year upon the terms of the void lease, so far as tliey are applicable to and not inconsistent with a yearly tenancy (s). A minister of a dissenting congregation, placed in possession of the chapel and dwelling-house by certain persons in whom the fee was vested, in trust to permit and suffer the chapel to be used for the purpose of religious worship, is a mere tenant at will to those persons ; and his interest is determinable by a de- mand of possession, without any previous notice to quit ; he is not entitled as of right, before the determination of his tenancy, to have a reasonable time allowed him for the re- moval of his furniture (^). Where a tenant at will let into possession a person whom the landlord had refused to take as tenant unless he found security, and who remained in possession two years, continuing to endeavour to find secu- rities, but without success ; it was held, that he was not (o) Doe d. Bastow v. Cox, 11 Q. B. v. Herbert, 4 T. R. 080; De Medina 122. V. Poison, Holt N. P. C. 47. (p) Doe d. Hollingsworth v. Sten- (5) Doe v. Bell, 5 T. R. 471; ante, nett, 2 Esp. 717 ; Sinipkin v. Ash- 221. hurst, 1 C, M. & R. 261. (t) Doe d. Jones r. Jones, 10 B. & (7) Peacock v. Peacock, 16 Ves. 57 ; C. 718; Doe d. Nicholl v. M'Kaeg, Id. Doe d. Stanway v. Rock, 1 Car. & M. 721 ; Revett ?•. Brown, 5 Bing. 7 ; 549 ; 4 M. & G. 30 ; Ball v. Cullimore, Perry v. Shipway, 1 Giff. 1 ; Cole 2 C, M. & R. 120. And see 237, post. Eject. 451, 604 ; 23 & 24 Vict. c. 136, (r) Denn d. Warren v. Fearnside, s. 14. 1 Wils. 176; Goodtitle d. Galloway ^ Entry tinder an agreement for a lease does not necessarihj (even in Massachusetts) create a tenancy at will. Lyon v. Cunningham, 136 Mass. 532. 369 *229 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 4. even tenant at will (w). Slight evidence has been held sufficient to make a tenant on sufferance a tenant at will (2-). An admission of half a year's rent being in arrear is some evidence of a tenancy at will (?/). Actual payment of rent is not always necessary to create such a tenancy, so as to authorize a distress (2), Where a term of years is created by way of use, and hmited to a trustee, the owner of the freehold who holds subject to such term is a quasi tenant at will to his own trustee (a). Determination of tenancy at will. — An estate at will may be determined by a demand of possession, or by the express declaration of either of the parties (6), or by implication of law: of the latter description will be the death of either party, which in general determines the will (c) — acts of ownership exercised by the landlord (t?) — his alienation of the reversion and notice thereof (e) — Avaste committed by the tenant (/) — his demising or leasing or assigning [*229] the premises over (^) — or, in short, doing any * act which is inconsistent with an estate at will (A). An entry by the landlord on the land without the tenant's consent, and cutting and carrying away stone therefrom, amounts to a determination of the will (O- It is requisite (h) Doe d. ITeniing v. Brett, Hurl. (p) Co. Lit. 55 b ; Disdale v. Isles, & Walm. ;]. 2 Lev. 88; 1 Vent. 247 ; Hall v. Culli- (.r) Turner v. Doe d. Bennett (in more, 2 C, M. & R. 120; Doe ?Y(. (7) Cole Ejec. 449, 453; Binborn (n) Sup. V. & P. 1129 (14th ed.); v. Souster, 8 Excb. 703; Melling v. Doe d. Jacobs r. I'hilli])s, 10 Q. B. Leake, 10 C B. (i52. 130. (/() Cruise's Dig. tit. ix. s. 17; Co. (I>) Cole Ejec. 58, 452, 453; Doe Lit. 57 a, 55 b, n. 15; Hinohman f/. Bastovv r. Cox, 11 Q. B. 122. r. Isles, 1 Ventr. 247; Countess of (c) Doe d. Stanway r. Rock, 1 Car. Shrewsbury's case, 5 Rep. 13 b ; Hirch & M. 549; 4 M. & C. 30; Cockerell v. Wright, 1 T. R. 382; Pollen r. »'. Owerell, Holt, 417; James c Dean, Brewer, 7 C. B., N. S. 371; AVallis 11 Ves. 301; Att.-Gen. r. Ld. Foley, -•. Delmar, 29 L. J., Ex. 270; Smith 2 Dick. 303. L. & T. 19 (2nd ed.). (d) Co. Lit. 55 b, 57 b, L'l5 1); cited (/) Doe d. Bennett v. Turner, 7 M. 9 M. & W. 040; Doe ,1. Moore r. & W. 220 ; 9 Id. 043. Lawder, 1 Stark. R. 308; Smith L. &T. 17 (2nd ed.). 370 Ch. VI. S. 4.] TENANCY AT WILL. *229 that the landlord should give the tenant notice that he de- termines the tenancy if the act relied on be done off the premises (/c). Where the act is done on the land, it is pre- sumed that the tenant is there and knows of it (Z). A demand of possession made on the premises from the wife of a sub-lessee at will is suHicient (w). So the lessor by making a lease for years to commence presently determines the tenancy at will, although there be a stipulation that the new lessee shall not enter until after the day for payment of the rent by the tenant at will (?i). The Avill is also deter- mined by an agreement by the lessor for the sale of the free- hold to the tenant at will (o). The words "Unless you pay what you owe me, I shall take immediate measures to re- cover possession of the property," addressed to the tenant by the party entitled to the fee, have been held a sufficient determination of the will, and equivalent to a demand of possession, so as to maintain ejectment (jo). A., having been in possession of a house and lands adjoining as tenant at will to the lord of a manor, was told by a subsequent lord that he must leave. On his refusal to do so, a writ of ejectment was served upon him ; it was then verbally ar- ranged that A. should give up part of the land, and retain the house and remaining land during the life of himself and wife. It was held that these acts amounted to a determina- tion of the tenancy at will, and as a new tenancy at will was thereby created as to part, the Statute of Limitations, 3 & 4 Will. 4, c. 27, ss. 7, 10, began to run from that time, and not from the date of the original tenancy {q^. A sub-demise or assignment by a tenant without notice thereof to his land- lord does not determine the will, so as to prejudice the land- lord (/•). (k) Co. Lit. 55 b. (o) Daniels v. Davison, 16 Ves. 249. (0 Cole Ejec. 452; Pinhorn v. (;*) Doe f/. Price i-. 8 Bing. .356. Souster, 8 Exch. 763; Carpenter v. (7) Locke v. Matthews, 13 C. B., Collins, Yelv. 73; Ball i'. CuUimore, N. S. 753; 9 Jur., N. S. 874. 2 C, M. & R. 120. (r) Pinhorn v. Souster, 8 Exch. (?n) Roe d. Blair v. Street, 2 A. & 763. Mclling i'. Leake, 16 C. B.652; E. 329 ; 4 N. & M. 42. Cole Ejec. 453. (n) Disdale v. Isles, 2 Lev. 88; 1 Ld. Raym. 224. 371 *230 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 4. Bankruptcy. — Becoming an insolvent debtor has been held to be a determination of the will (s), and becoming bankrupt would seem to have the same effect. Joint tenancy. — If two joint tenants create a tenancy at will at a certain rent, and one cUes, the survivor takes [*230] the whole premises and may maintain an * action for the entire rent against the lessee continuing in pos- session (^). So where a lease is made to three joint tenants, rendering rent, the death of one does not determine the tenancy; but the survivors are liable to pay the whole rent (0- Marriage. — A lease at will by a feme sole did not, even before the Married Women's Property Act, determine by her marriage, unless the husband did some express act to determine the tenancy (^ ; nor did the marriage of a feme sole determine a tenancy at will made to her (f) ; and the effect of the act is to give the married woman the same estate as if she were still a feme sole. Rights of the parties on the determination. — The sudden determination of the will of one party will not operate to the material injury of the other: therefore if a tenant at will sow his land, and the landlord determine the tenancy ])efore the corn be ripe, the tenant notwithstanding has free liberty to enter upon the land to cut and carry his crop (w) ; and, on a like principle of justice, the tenant may, in all cases, have reasonable time allowed him to remove his goods after the determination of the estate by the act of the land- lord (a:). AVhere there is a tenancy at will, rent being paid quarterly, the lessee, after a quarter of a year is commenced, may determine his will, but then he must pay that quarter's rent; and if the lessor determine liis will attor the com- mencement of a quarter, he loses liis rent for tliat quarter; and so it is if the rent be payable half-yearly (vy). (s) Doe r/. Davics ?). Tluniiiis, Ex. (r) Lit. s. 09 ; Noy's Max. c. 11; 984. Doc d. Nicholl v. M'Kaeg, 10 B. & C. (/) Honstead's case, 5 Co. R. 10 b. 721. 00 liit. s. 08; Co. Lit. f).'') h; Oland (//) Carpcntor c CoIlin. Sali<. 222; Lcigli- BiilwiT. 2 B. & A. 470, 471. And sec tone Tiiood, 2 Salk. 41:! ; 1 Ld.Kaym. Cliap. XX., 7)o.sr 707; I'arkcr v. Harris, 4 Mod. 70; 1 372 Cii. VI. S. 5] TENANCY ON SUFFERANCE. *231 Sect. 5. — Tenancy on Sufferance. How constituted. — A tenant on sufferance is one who en- tered by a lawful demise or title, and after that has ceased wrongfully continues in possession without the assent or dis- sent of the person next entitled (z) ; as where a tenant per autre vie continues in possession after the death of the cestui que vie (a), or where any one continues in possession with- out agreement after a particular estate is ended (J).^ If a tenant for years surrender and then hold over, he will be either tenant on * sufferance or disseisor, at [*231] Salk. 262; Title v. Grovett, 2 Ld. (6) Com. Dig. tit. Estates (H.) ; Raym. 1008 ; Co. Lit. 55 a, b, note Doe d. Martin v. Watts, 7 T. R. 83 ; 374 ; Kighly v. Bulkly, 1 Sid. 338. Roe d. Jordan v. Ward, 1 H. Blac, (z) Co. Lit. 57 b, 270 b ; 1 Steph. 9(3 ; Roe d. Brune v. Prideaux, 10 East, Com. 273. 187 ; Doe d. Collins v. Weller, 7 T. R. (a) Co. Lit. 57 b ; Allen i-. Hill, 487 ; Doe d. Tucker v. Morse, 1 B. & Cro. Eliz. 238 ; 3 Leon. 153. Ad. 305. 1 Tenancy at sufferance. — One who liolds over after a term for years, or lesser period, without the consent of the landlord is (by all authorities), a tenant at sufferance. Hauxhurst v. Lobree, 38 Cal. 563; Ferine v. Teague, QQ Id. 446; Jackson v. Farkhurst, 5 Johns. (N. Y.) 128; Jackson v. M'Leod, 12 Id. 182; Wilde v. Cantillon, 1 Johns. Cas. (N. Y.) 123; Den v. Adams, 12 N. J. L. 99; Condon v. Barr, 47 N. J. L. 113; Leighton v. Van Wart, 1 Pugs. & Bur. (N. B.) 489, 491 {per Allen, C. J.); Cairo, &c., R. R. Co. v. Wiggins Ferry Co., 82 111. 230. In England, New Brunswick, Maine, and Massachusetts, one holding over without agreeing expressly or impliedly to continue, the tenancy is a tenant at sufferance. Leighton v. Van Wart, 1 Pugs. & Bur. 489 ; Bowman v. Avery, 3 Kerr (N. B.) 206,210; Delano v. Montague, 4 Cush. (Mass.) 42; Bunton r. Richardson, 10 Allen (Mass.) 260 (per Bigelow, C. J.); Lithgow V. Moody, 35 Me. 214; Chesley v. Welch, 37 Me. 106. And the landlord (at common law) cannot recover for use and occupation. See above cases, and, also. Flood V. Flood, 1 Allen (Mass.) 217, 218 (per Chapman, J.) ; Merrill V. Bullock, 105 Mass. 486, 490 (per Gray, J.); though he may by statute in Massachusetts Pub. Sts. chap. 121, sec. 3; Bunton r. Richardson, 10 Allen, 200. In New York and some other states, he is a tenant or trespasser at election of landlord. Wolffe r. Wolffe, 69 Ala. 549, 551, 552 (per Somer- ville, J.); Pickett r. Bartlett, 13 Daly (N. Y.) 230; Smith v. Allt, 7 Id. 492, 493; Schuyler v. Smith, 51 N. Y. 309; Critchfield v. Remaley, 21 Neb. 178; Conway v. Starkweather, 1 Denio (N. Y.) 113; Clinton Wire Co. v. Gardner, 99 111. 151 ; Noel v. McCrory, 7 Coldw. (Tenn.) 623. A tenancy at will will be changed into a tenancy at sufferance by the death of the lessor, Reed v. Reed, 48 Me. 388 ; or alienation of the estate, Nelson V. Cook, 12 Q. B. (Out.) 22 ; Esty v. Baker, 50 Me. 325. 373 *2-31 TENANCIES FOK LESS THAN YEARS, ETC. [Cii. VI. S. 5. the election of the hmdlord (c). An undertenant who is in possession at the determination of the original lease, and is suffered by the reversioner to hold over, is only a tenant on sufferance ((7). Where a tenancy at will is determined by the landlord exercising acts of ownership, and the tenant remains in possession, he becomes tenant on sufferance only, but slight evidence would be sufficient to show a new creation of a tenancy at will (g), or he may by payment of rent or other acknowledgment of tenancy be- come tenant from year to year (/'). Distinction between tenant at -will and on sufferance. — There is a great difference between a tenant at will and a tenant on sufferance : the former is always in by right ; but the latter holds over by wrong after the expiration of a lawful title (^). The reversioner who suffers this is considered to be guilty of some laches or negligence, as is generally the case. Against the crown there can be no tenant on suffer- ance, for the crown not being capable of committing laches, such person will be an intruder (A). Where a cottager occupied a piece of land inclosed from the waste on the side of a turnpike road for more than thirt}^ years, without pay- ing rent, and at the end of that time paid sixpence rent on four several occasions to the owners of the adjoining land : it was held, that this was conclusive evidence of a permis- sive occupation only, so as to maintain ejectment ; and that it was a proper question for the jur}^ whetlier there had been an acknowledgment of the tenancy (Q. Empty house. — Where a person obtained possession of a house which was empty, without the privity of the landlord, intending to take a lease of it from him, and some negotia- (c) Pennington v. Morse, Dyer, 62 Doe d. Clarke i". Smaridge, 6 Q. B. a; Winch, 82; Kiglit v. T):irhy, 1 T. 957. R. 159 ; Doe d. Tilt v. Stratton, 4 (7) Co. Lit. 57 b ; cited .3 C. B. Binf;. 4(50. 220, note (h) ; Coje Ejcc 45(5. {d) Simpkins ;;. Aslihurst, 1 C, M. (/i) Co. Lit. 57 b ; Cole Ejoc. 456. & 1{. 201. (0 Doe d. Jackson v. Wilkinson, 3 (e) Doe d. Bennett r. Turner, 7 M. B. & C, 41.'?; and see Doe d. Thomp- & W. 220 ; 9 Id. 043. son v. Clark, 8 B. & C. 717 ; Locke v. (/) Mann v. Lovejoy, Ry. & M. Matthews, 13 C. B., N. S.753; 9 Jur., 3.55'; Right V. Darby, 1 T. H. 159; N. S. 874. Doe d. Calvert v. Frowd, 4 Bing. 557 ; 374 Ch. VI. S. 6.] MORTGAGOR AND MORTGAGEE. *2-32 tions afterwards took place between them upon the subject : it was held that the relation of landlord and tenant never subsisted, but that if there was a tenanc}'" of any sort it was on sufferance (/c). An instrument in these terms, " I hereby certify that I remain in the house, No. 3, Swinton Street, be- longing to W. G,, on sufferance only, and agree to give him possession at any time he may require," does not create any tenancy, nor require a stamp (Z). Ejectment. — A landlord may maintain ejectment against his tenant on sufferance without any previous demand of possession (w). A tenant on sufferance, who is turned out of possession by his landlord, without any * demand of possession, cannot maintain ejectment, [*232] but may sometimes maintain trespass (w). It would seem, however, that the action should be for assault and battery rather than for trespass to the land (o). Demise by estoppel. — A tenant on sufferance has no de- misable estate, but he may create a tenancy by estoppel (p). Sect. 6. — Mortgagor and Mortgagee. The notion of a mortgagor being in some cases a tenant at will seems to be recognized by 3 & 4 Will. 4, c. 27, s. 7, which provides that no mortgagor shall be deemed to be a tenant at will to his mortgagee within the meaning of that clause ; ^ but it seems more correct to say that the mortgagor is a tenant on sufferance only (^). It is clear, too, that the mortgagor cannot create a subtenancy ; that his subtenants would be tortfeasors, and could not sue the mortgagee in trespass (jq). (k) Doe d. Knight v. Quigley, 2 749 ; Doe d. Harrison v. Murrell, 8 Camp. 505. C. & P. 184. (/) Barry r.Goodman, 2 M. & W. 768. (o) Cole Ejec. 456. (m) Doe d. Leeson v. Sayer, 3 (/>) Sliopland v. Ryoler, Cro. Jac. Camp. 8; Doe d. Bennett r. Turner, 55,99; Thunder rf. Weaver y. Belcher, 7 M. & W. 226 ; Doe d. Heming v. 3 East, 449. Brett, Hurl. & W. 3; Cole Ejec. 457. (r/) Gibbs v. Cruikshank, L. R., 8 (n) Doe d. Crisp v. Barber, 2 T. R. C. P. 454 ; 42 L. J., C. P. 273. 1 Attornment clauses. — Mortgages are sometimes made with attorn- ment clauses. In re Willis, Ex parte. Kennedy, 21 Q. B. D. 384; Southport & W. Lancashire Banking Co. v. Thompson, 37 Ch. 1). 64. 375 *233 TENANCIES FOR LESS THAN YEARS, ETC. [Cii. VI. S. 6. Mortgagor may sue for rent. — By the Judicature Act, 1873, s. 25, subs. (5), '"'■ a mortgagor entitled to possession may, unless notice of an intention to take possession shall have been given by the mortgagee, or unless the cause of action arise upon some joint contract (9^), sue for possession or rent in his own name only." " Attornment clause " in mortgage deed. — In order to obtain for the mortgagee the benefit of being able to recover his interest as rent by the preferential remedy of distress, it became common to insert in mortgage deeds an " attornment clause," by which the mortgagor " attorns," or agrees to become tenant to, the mortgagee at a rent representing the interest ; and this fictitious tenancy has given rise to much litigation. Where the mortgagor agreed to become tenant to the mortgagee at his will and pleasure, at the rate of 2bl. per annum, payable quarterly, and occupied for two 3^ears, pay- ing the rent, it was held to be a tenancy at will, and not from year to year (r). So where it was agreed that the mortgagor should hold the premises as tenant at will to the mortgagee at a specified rent, for which it should be lawful for the mortgagee to distrain, it was held that the clause creating a tenancy was operative, as not being inconsistent with the main object of the instrument, and that a tenancy at will was thereby created (s). But where the attornment clause expressly provides for a tenancy from year to year, a tenancy at wdll is not created by words also ex- [*233] pressly providing that the * mortgagee may re-enter and determine the tenancy at any time without notice, so that tlie mortgagee in such a case may distrain under the 42nd section of tlie Bankruptcy Act, 1883 (^). Where the mortgagor by the mortgage deed attorned and agreed to (77) See the section at length, ante, K> Cli. D. 274 ; 50 L. J., Ch. 318 ; 44 50. L. T. 74 ; 21) W. R. 128 ; C. A. As to ()•) Doe d. Barstow v. Cox, 11 Q. wliat amount may be distrained for B. 122; Doe d. Dixie v. Davies, 7 under an attornment chiuse, see Har- Exch. 80. rison, K.r parte, Betts, In re, L. R., (.s) Pinliorn v. Souster, 8 Kxch. 70.3. 18 Ch. D. 127 ; 50 L. J., Ch. 832 ; 45 (0 Queen's Benefit Huiidinfj; Soei- L. T. 290; 30 W. R. 38 C. A. ety, Ex parte, Trelfall, hi re, L. R., 376 Ch. VI. S. 0.] MORTGAGOll AND MORTGAGEE. ' *233 become tenant from year to year to tlie mortgagee at a fixed rent, payable half-yearly, to enable him to distrain for his interest when in arrear, and with the usual power of entry after default ; it was hold, that such attornment did not create a tenancy from year to year ^vit^l all its incidents^ and that the mortgagee might, after default, maintain ejectment against the mortgagor without giving him six months' notice to quit (u). The mere fact that the mortgagee has received interest down to a time later than the day of demise in eject- ment, is not a recognition of tlie mortgagor as his tenant (a) ; nor is the distraining after such day of demise, for interest due before the day, under a power to do so as for rent re- served on a lease, there being no clause that the mortgagor shall keep possession so long as he pays interest (?/). Where a mortgage contained a covenant that the mortgagor, during his occupation, should pay a rent rather larger than the interest, half-yearly, and that the mortgagee should have the usual remedies of landlords of distress and sale ; provided that this reservation should not prejudice the mortgagee's right to enter and evict the mortgagor; it was held that, after distraining for one half-year's rent, the mortgagee miglit eject the mortgagor, without notice to quit, after a subsequent default (s). So where a mortgage deed con- tained a clause that for the better securing the principal and interest, and in contemplation of part discharge thereof, the mortgagor attorned tenant to the mortgagee, at a quarterly rent, to be recoverable by distress and sale, or action, with a power of immediate entry and sale for the mortgagee, upon default of payment of the mortgage money ; it was held there was no need of a notice to quit after default (a). Notice of intention to treat mortgagor as tenant. — But in Clowes V. Hughes, where the mortgage deed provided that {u) Metropolitan Counties Assur- Assurance Co. v. Brown, 4 H. & N. ance Co. v. Brown, 4 H. & N. 428. 428. (x) Doe d. Rogers i'. Cadwallader, (c) Doe d. Garrod v. Olley, 12 A. 2 B. & Ad. 47o; but see Doerf. Whit- & E. 481; Metropolitan Counties aker v. Hales, 7 Ring. 322. Assurance Co. i'. Brown, supra. (y) Doe d. Wilkinson r. Goodier, (a) Doe d. Snell v. Tom, 4 Q. B. lOQ. B. 957; Metropolitan Counties 015; Metropolitan Counties Assur- ance Co. V. Brown, supra. 377 *234 TENANCIES FOR LESS THAN YEAKS, ETC. [Cu. VI. S. 6. the mortgagor, in event of default, should immediately, or at any time after such default, hold the mortgaged premises as yearly tenant to the mortgagees from the date of the deed, and that they should have the same remedies for recovering the rent as if it had been reserved upon a com- mon lease, it was held that notice of an intention to [*234] treat the mortgagor as tenant was a * condition pre- cedent to distress (6). A mortgage deed executed by the mortgagor only contained a clause whereby, " for the more effectual recovery of the interest, the mortgagor did attorn and become tenant to the mortgagee of the premises at the yearly rent of 401. to be paid half-yearly, so long as the principal sum remained secured ; " the mortgagor con- tinued in possession, and made several of these half-yearly payments ; it was held, that the subsequent occupation, con- nected with the covenant, created the relation of landlord and tenant, and that the mortgagee might distrain for a half-yearly payment in arrear (c). Attornment to second mortgagee. — A mortgagor may attorn tenant to two mortgagees in respect of the same property. And if the amount of the rents fixed by the two attornment clauses is fair, so as not to raise a fraud upon the law of bankruptcy, valid distresses can be levied by both mortgagees after the commencement of the bankruptcy of the mortgagor. So it was held by the Court of Appeal in Punnett, ex parte, Kitchin, in re (d^. Fraud on bankruptcy law. — A rent may be SO excessive as to lead the court to the conclusion that the attornment clause was a mere device to obtain an additional security, in which case a distress will be invalid as against the trustees in bank- ruptcy as a fraud upon the bankruptcy law (e). Effect of Bills of Sale Act, 1878, on attornment clauses. — It (6) Clowes I'. Hufrhcs, L. R., 5 Ex. re, L. R., 16 Ch. D. 226; 50 L. J., Ch. 160; .30 L. J., Ex. 02; 22 L. T. 103; 212; 44 L. T. 22(5; 29 W. R. 120. 18 W. R. 450. {)■) .Jivckson, Ex parte, Bowes, In (c) West 1-. Fritche, ?. Exch. 216; re, L. R., 14 Ch. D. 725; 4.3 L. T. Morton v. Woods, L. R., :j Q. R. 658; 272; 20 W. R. 253 C. A. Sec also 37 L. J., C). B. 242; aff. L. R., 4 Q. B. Williams, Ex parte, L. R., 7 Ch. 1). 293. i:!H; Stockton Iron Co., In re, L. R., (d) Punnett, Ex parte, Kitchin, In 10 Ch. 1). 335. Ch. VI. S. G.] MOKTGAGOK AND MORTGAGEE. *235 is enacted by s. 6 of the Bills of Sale Act, 1878, that "every attornment, instrument or agreement, not being a mining lease," whereby a power of distress is given and rent reserved as a mode of providing for interest on a debt, "shall be deemed to be a bill of sale " of the chattels which may be seized under the distress ; but a proviso is added that nothing in the section shall extend to any mortgage of an estate " which the mortgagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reason- able rent." Bills of Sale Act, 1882. — This section appears to incorporate the effect of the decisions, and to exempt reasonable attorn- ment clauses from the operation of the Bills of Sale Acts ; but by the Bills of Sale Act, 1882, s. 8, unregistered bills of sale, executed after the commencement of that act, are void not only as under the acts of 1854 and 1878, as against exe- cution creditors and trustees in bankruptcy, but as against the grantor, and attornment clauses must always be attended with considerable risk to mortgagees. Construction of mortgage deeds. — A mortgage indenture, after a power of sale on non-payment of the mortgage-money, contained a covenant by the mortgagee that there * should be no sale or notice of sale, nor means taken [*235] for obtaining possession until a year after notice thereof to the mortgagor; the mortgagee also covenanted for quiet enjoyment by the mortgagor or his tenant at will, on payment of a yearly rent ; it was held, that under this deed the mortgagor was tenant at will only to the mortgagee, and that no tenancy from year to year was thereby cre- ated (/). An estate was mortgaged in fee, with the usual proviso for redemption, on payment in June, 1834, and it was also provided that the mortgagee should not call in the principal money until December, 1840, if the interest were regularly paid ; and there was a covenant that the mort- gagor should hold, occupy and enjoy the estate until default in payment of the principal or interest as aforesaid ; it was held that this operated as a lease to the mortgagor until (/) Doe d. Dixie v. Davies, 7 Exch. 89. 379 *235 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 6. December, 1840 (_^). A tenant for years of a house demised it by \xiij of mortgage to hold from thenceforth, subject to the proviso after named ; and he further sold and transferred the fixtures and some chattels to the mortgagee, also subject to the proviso after named; the deed contained a proviso for reconveyance on payment of the money on a certain day, and also a proviso that, on non-payment, the mortgagee might enter upon and receive the rents, and sell the prem- ises, and also the fixtures and chattels ; it was held that the mortgagee's right to take possession did not attach until the day on which the money was to be paid, and that therefore he could not maintain an action of trespass previously (A). But where a person demised premises, to hold from thence- forth for a term, provided that if the lessor paid a certain sum and interest a year after, then that the demise should be void ; provided also, that upon default the lessee might sell ; and there was a covenant by the lessor for paj-ment of princi- pal and interest, and that at any time after default it should be lawful for the lessee to enter, and from thenceforth to hold the premises and take the rents ; it was held, that the lessee might take possession immediately and before default («). Summary judgment. — Where the attornment clause pro- vided for a tenancy at will, and the mortgagee, having given notice to quit, sued for the recovery of the land, it was held that the action was one " for the recovery of land by a land- lord against a tenant whose term had expired " within Ord. III., Rule 6, case F of the Rules of the Supreme Court, 1883, so that the plaintiff might specially endorse his writ and apply for final judgment under Order XIV. (/c). (.9) Wilkinson v. Hall, .3 Binp. N. 133 ; but see Doe d. Tarsley v. Day, C. 508 ; Doe d. Lyster i;. Goldwin, 2 2 Q. B. 147. Q. B. 143 ; Doe d. Hoylance i'. Lif,'iit- ((') Rogers i'. Grazebrook, 8 Q. B. foot, 8 M. & W. 653; Doe d. Parsley 81)5. V. Day, 2 Q. B. 147. (^O Daubuz v. Lavington, L. R. (A) Wheeler v. Montefiore, 2 Q. B. 13 Q. B. D. 347 ; 53 L. J., Q. B. 283 51 L. T. 20U ; 32 W. R. 772. 380 Ch. VI. S. 7.] MASTER AND SERVANT. *236 * Sect. 7. — Master and Servant. [*236] Servant occupying separate house. — An agent 01' servant who is allowed to occupy premises belonging to his principal for the more convenient performance of his duties, acquires no estate therein, although he be also allowed to use the premises for carrying on therein an independent business of his own (^), nor does any tenancy arise in the common case of a servant occupying a cottage rent-free, with less wages on that account (jn^} Where a person was employed by the Highgate Archway Company to collect toll for them, and lived in the toll-house, one shilling per week being deducted from his wages by way of rent; and the company having ceased to collect toll at the particular spot, he was dismissed from their employ, and received a notice to leave the house, which he promised to do : it was held that these circumstances did not constitute him a tenant of the com- pany (m). Where a servant occupies premises of his master, without paying rent, as part remuneration for his services, in order to ascertain whether the servant is a " substantial householder " within the 43 Eliz. c. 2, s. 1, so as to be eligi- ble to the office of overseer of the poor, the question is whether the occupation is subservient and necessary to the service ; if it is, the occupation is that of the master ; if it is not, the occupation is that of a tenant, and the servant is a " householder " (o). (/) White V. Bayley, 10 C. B., N. S. 6 M. & S. 136 ; T?. v. Cheshunt, 1 B. 227. & A. 473; R. r. Snape,(5 A.& E. 278; (m) Bertie v. Beaumont, 16 East, Allen v. England, 3 F. & F. 49. 33 ; Rex v. Stock, 2 Taunt. 339 ; May- (n) Hunt v. Colsen, 3 Moo. & Sc. hew V. Suttle, 4 E. & B. 347, 357 ; 23 790 ; Mayhew v. Suttle, supra. L. J., Q. B. 372; 24 Id. 54; R. v. (o) Reg. v. Spurrell, L. R., 1 Q. B. Shipdam, 3 D. & R. 384 ; R. v. Bard- 72 ; 35 L. J., M. C. 74. well, 2 B. & C. 161 ; R. v. Kelstern, 1 Occupation of employees. — McGee v. Gibson, 1 B. Mon. (Ky.) 105; Herrell v. Sizeland, 81 111. 457; Webb v. Seckins, 62 Wis. 26. In McGee r. Gibson, a farm laborer was furnished a house at $2 per month, and the court held that he was not a tenant, the agreement to furnish house not being an independent contract. In Herrell v. Sizeland, a man and wife who entered the house of another, and took care of him till his death, were held not to be tenants. 381 *237 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. YI. S. 8. Service franchise. — Officers or sevvants permitted to occupy houses as part remuneration for their services, were considered as occupying as tenants within the Reform Act (2 Will. 4, c. 45), s. 27, but not if they were required to occupy them with a view to the more efficient performance of their duties (jj); but this distinction has been done away witl^ by s. 3 of the Representation of the People Act, 1884, 48 Vict. c. 3, which provides that "• Avhere a man himself inhab- its any dwelling-house by virtue of an}^ office, service, or employment," and the dwelling-house is not inhabited by any person under whom he serves, he shall be deemed for the purposes of the parliamentary franchise to occupy as a tenant. Liability of servant in ejectment. — Where a servant, on being served with an ejectment, appeared and defended the action, it was held that he had thereby made liimself person- ally liable as tenant in possession (^q). [*2S7] * Sect. 8. — Vendor and Vendee. Occupation under contract for sale. — An occupation under an agreement for the purchase of land, if a good title can be made, may create a tenancy (r), which must be determined by a demand of possession or otherwise before an ejectment can be supported (^s}.^ Where a person was let into posses- ( p) Hughes V. Chatliam (Over- Doe cl. Milburn v. Edgar, 2 B'mg. seers), 5 M. &. G. 54. N. C. 498; Winterbottom v. Ingham, (7) Doe d. James v. Stanton, 2 IJ. 7 Q. B. Oil. & A. 371; 1 Chit. R. 110 ; Doe d. (s) Right d. Lewis v. Beard, 13 Atkins V. Roe, 2 Chit. R. 170; Doe East, 210; Doc (/. Newby r. Jackson, d. Cuff V. Stradling, 2 Stark. 187; 1 B. & C. 448; Doe d. Milburn v. Cole Ejec 84, 124. Edgar, 2 Bing. N. C. 498 ; Doe d. ()•) Doe d. Newby v. Jackson, 1 B. Stanway v. Rock, 4 M. & G. 30 ; Doe & C. 448; Kirtland v. Ponnsett, 2 d. Gray v. Stanion, 1 M. & W. 700 ; Taunt. 145; Hearnei?. Tomlins, Pcake, Cole Ejec. 58. 102; Hope v. Booth, 1 B. & Ad. 408; ' Whether vendee is a tenant. — By many authorities occupation under a contract of jjurclmsc creates a t/nnsi tenan<.'y, Moshicr v. Rciling, 12 Me. 478; Millay v. Millay, 18 Id. 387 ; Kclley v. Kcllcy, 23 Id. 102; Goodenow v. Kilby, 24 Id. 425; Patterson r. Stoddard, 47 Me. 355; Dunning c. Finson, 4G Id. 54G; Gould v. Thompson, 4 Met. (Mass.) 224; Dakin v. Allen, 8 Cush. (Mass.) 882 Cn. VI. S. 8.] VENDOR AND VENDEE. *237 sion under an agreement of pnrcliase, he paying interest on the purchase-money until completion of the purchase, which was to be in three months ; and the purchase not being then completed, he continued in possession : it was held, that there was only a tenancy at will, which might be determined without a notice to quit(i^).^ So where A., having agreed to buy lands of B., had paid part of the purchase-money, and was let into possession, it was held, that this was a mere tenancy at will, which might be determined by a demand of possession : after which an ejectment might be maintained (m), (0 Doe (/. Tomes v. Chamberlain, (n) Doe d. Hiatt v. Miller, 5 C. & P. 5 M. & W. 14 ; Doe d. Bord v. Cur- 595; Ball v. Cullimore, 2 C, M. & R. ton, 16 Q. B. 807. 120. ;5.3; Doe d. Kemp r. Garner, 1 Q. B. (Ont.) 89; Lundy v. Dovey, 1 C. P. (Ont.) 38; which nierjj;es in the fee upon completion of the contract, Shaw, C. J., in Gould v. Thompson, 4 Met. (Mass.) 224, 229; so that the tjuasi tenant will not be liable for intervening use and occupation. Carpenter v. U. S., 17 Wall. 489; Dennett r. Penobscot, 57 Me. 425; Cunningham v. Lyon, 18(5 Mass. 582 (per Field, J.). If contract fail of completion through fault of occupant, he will be liable (by these authorities) in assiimpsif for use and occupation from date of entry as tenant of the vendor. Gould r. Thompson, 4 Met. (Mass.) 224; Patterson v. Stoddard, 47 Me. 855. If, however, tiie failure to complete be the fault of tlie vendor, the occupant will not be liable, unless upon new and implied contract. Dvvight v. Cutler, 3 Mich. 5G6, 573; Hogsett y. Ellis, 17 Id. 851 ; Cunningham v. Lyon, 186 Mass. 532 {per Field, J.). An implied tenancy may arise after supersedure of the original agreement, and the quasi tenant will thereafter be liable as an ordinary tenant. Fowke V. Beck, 1 Spears (S. C.) 291 ; Barton v. Smith, 66 Iowa, 75. Such tenancy might arise though failure to complete the purchase were fault of vendor, if he notify occupant to quit or pay rent. Dwight v. Cutler, 8 Mich. 560, 573; Hogsett v. Ellis, 17 Id. 351. There are many cases which hold that an oc(!upant under an agreement to purchase is not a tenant in any such sense, that an action for use and occupa- tion may be maintained against him. Bancroft v. Wardwell, 13 Johns. (N. Y.) 489; Smith v. Stewart, 6 Id. 47; Sylvester v. Ralston, 31 Barb. (N. Y.) 286, 288; Stacy r. Vt. Cent. R. R. Co., 82 Vt. 551. These cases hold that the owner's remedy for use of property is not assumpsit but trespass upon tlieory, that occupant becomes a trespasser ub initio. There are other cases which hold that the vendor has an election of reme- dies, as that he can waive the tort, &c. Woodbury v. Woodbury, 47 X. H. 11, 21, 22 (per Sargent, J.) ; Clough r. Hosford, 6 Id. 231, 232. 1 Notice to quit. Is it necessary ? — One wdio has entered under an agreement to purchase which he has not executed, may be ejected without notice, Kilburn v. Ritchie, 5 Cal. 145 ; or demand of possession, Doe d. Kemp I'. Garner, 1 Q. B. (Ont.) 39. 383 *238 TENANCIES FOR LESS THAN YEARS, ETC. [Ch. VI. S. 8. but not an action for use and occupation (:r). Where the vendee of an estate sold by auction has been suffered to enter upon and hold the premises while the title was under investigation, and the contract has afterwards been deter- mined for want of title, the vendor cannot on these grounds only recover for use and occupation, although a jury find that the occupation has been beneficial (?/). But where by the contract of sale he admits himself to be tenant from week to week to the vendor at 80?. per week, payable in advance or otherwise, such rent may be distrained for (z). And if the vendee retain possession after the contract of purchase has gone off, he will be liable for subsequent use and occupation («). Under contract for assignment of term. — An occupation under an agreement for assigning a lease, where it was agreed that the assignee should pay the lessee, until the com- pletion of the assignment, at the rate of 100/. per year, was held to constitute the relation of landlord and tenant be- tween the lessee and the assignee (h) ; but where, in an agree- ment for the sale of leasehold premises, to be paid for [*238] by instalments, it was stipulated that, in * default of pa)nnents of the instalments at specified times, the former instalments should be forfeited, and the vendor should not be compellable to convey, upon which the pur- chaser was let into possession, and made default ; he was held to be from thenceforth a mere tenant on sufferance (c). Occupation by vendor. — A continuance of occupation by a vendor after conveyance executed, without any agreement, will not raise an implied tenancy, nor render him liable (r) Tn re Banks v. TJebbcek, 2 Low. (o) Howard ;;. Shaw, 8 M. & W. M. & P. 452. 118. (y) Winterbottom v. Inm, 7 Q. {}>) Saunders v. Mnsgravc, B. & H. Oil. The rents taken from sub- C. 624; 2 C. & P. 294; Anderson r. tenant8,notrceoverable under a claim Midland R. Co., 3 E. & E. 014; .'iO for use and occupation (Rumball i'. L. J., Q. B. 04. See also Seaton v. Wright, 1 C. & P. 589), will be recov- Booth, 4 A. & E. 528. erable as money i)aid to the use of (r) Doe d. Moore v. Lawder, 1 the intendin}^ ventlor. See also Kirt- Stark. 11. .TOH ; Doe : 32 L. T. OnS, Kxcli. Cii.. quit w.ms held not to liinil a pnrcliasor reversinfj di'cision below, I>. II., C. of the lan(!!or. Wade, M'Clel. 664. ^ Rent in arrears. — See nntr, note ujion " Assignment of Reversion." 2 Not always in tiie L'nited States. A reversion may bu less tlian a free- hold. Sec ante, notes to this section and section 1. 408 Cn. VII. S. 3.] ASSIGNMENT OF REVERSION. *255 ant from year to 3^ear, and afterwards granted a lease by deed to C. of the house for tAventy-one years : this was held to transfer the reversion to C, and to disentitle A. to recover from B. any rent which accrued during C.'s lease (z). A conveyance in fee, whether absolutely or by way of mort- gage, will pass a term which has been carved out of it, and afterwards re-assigned to the grantor, subject to a sub- lease (a). Effect of mortgage of reversion. — Mortgages subsequent to a lease operate as grants of the reversion, and carry with them, as incidental to such reversion, a right to the *rent and the benefit of the laiullord's remedies for [*255] the recovery (6). The mortgagee, therefore, may enforce the payment of the rent from the lessee either by dis- tress or action ; and the lessee will be exonerated by such pay- ment from any demand on the part of the mortgagor or those claiming under him ; even though actual compulsion on the part of the mortgagee has not been resorted to, but the lessee has paid the rent voluntarily (c). Payment of rent. — Payment of rent to the mortgagor with- out notice of the mortgage is valid (c?), but payment of rent in advance is not within this rule, so as to discharge a tenant who had notice of the mortgage before the rent was due, for a payment of rent in advance is merely a loan by the tenant to the landlord (e). A payment, however, is a payment of rent when the rent falls due, and becomes irrecoverable by the mortgagee so far as it is made in respect of rent due before the notice (/). It is not necessary that the notice should be in terms ; it is sufficient that the mortgage should be brought to the mind of the tenant ((/). {z) Harmer v. Bean, 3 C. & K. 307 ; (J) 4 Ann. c. 16, s. 10. Burrows v. Gradin, 1 D. & L. 213; (e) Do Nicolls v. Saunders, L. R., post. Sect. 5; but see Edwards v. 5 C. P. 58; 39 L. J., C. P. 297; 22 Wickwar, L. R., 1 Eq. 403. L. T. 6G1 ; 18 W. R. 1106. (a) Burton c. Barclay, 7 Bing. 745. (/) Cook v. Guerra, L. R., 7 C. P. [h) Ante, 51. 132; 41 L. J., C. P. 89; 26 L. T. 97; (c) Moss V. Gallimore, 1 Doug. 279; 20 W. R. 367. 1 Smith L. C. 029 (7th ed.). {g) Id. 409 *255 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 4. Sect. 4. — Severance of Reversion. Assignee of reversion of part. — All assignee of the rever- sion of part of the demised premises can sue for apportioned rent at common law (^^), ^ and could always, under the stat- ute 32 Hen. 8, c. 34, sue for breach of the covenants respect- ing that part (A), and so might an assignee of part of the reversion (Jili). Assignee of part of reversion. — Where a lease of an undi- vided part of certain mines contained a recital of an agree- ment between the lessee, the lessor, and the owners of the other two-thirds, for pulling down an old mill, and building another of larger dimensions, and the lease contained a cove- nant to keep such new mill in repair, and so leave it at the end of the term, but did not contain a covenant to build, it was held that the assignee of the lessor of the one-third might sue in respect of his interest (/). {gg) As to mode of apportionment, (A) Co. Litt. 315 a ; Tvvynam v. see post, Ch. X., Sect. 6; and for an Pickard, 2 B. & A. 105 (covenant to instance of the rare action for appor- repair) ; Badeley v. Vigurs, 4 E. & tionment see Burgojne v. Ainsworth B. 71 (covenant to leave in repair). {Law Times newspaper for October {lih) Attoe v. Hemniings, 2 Bulst. 10th, 1885), in which case tlie action 281. was brought in the Brompton County (/) Easterby v. Sampson, 6 Bing. Court. 644; 4 M. & P. 001 (Exch. Ch.). 1 Severance of reversion. — («) How effected. — A severance of reversion is effected by conveyance of a single portion of demised premises, Keeve V. Thompson, 14 Ont. 499; Worthington v. Cooke, 50 Md. 51; Reed v. Ward, 22 Pa. St. 144 ; or separate assignments of different portions, Babcock r. Scoville, 56 111. 4G1 ; Van Rensselaer v. Bradley, 3 Denio (N. Y.) 135 ; Van Rensselaer's Ex'rs v. Gallup, 5 Id. 454; or by surrender to lessor of part of demised premises, Blake v. Sanderson, 1 Gray (Mass.) 3.32. (b) Consequences. — And after severance the lessor and assignees may recover each his proportionate part of the rent, as ascertained by a jury, according to the value of each assignee's interest. See above cases, and Boulton v. Blake, 12 Ont. 522, 538. If tlie rent be of a nature indivisible, it is extinguislied. The lessor cannot throw entire Ijurden upon one ])art. A rent item of a day's service with horse and carriage was held extinguished, in Van Rensselaer ;;. Bradley, 3 Dcnio (N. Y.) 135, 141, 142. Justice .lewett said the effect of partial assignment by the lessee would be to multiply the service. In lU'ctor V. Bacon, Allen (N. B.) 1.34, it was held that the lessor could not maintain covenant for a portion of the rent, the covenant being entire. It is well settled, however, tliat lie may recover his proportion of the rent. Worthington v. Cook, 50 Md. 51. 410 Ch. VII. S. 4.] SEVERANCE OF REVERSIOISr. *256 But it was held that the assignee of the reversion of part could not take advantage of a condition broken^ though an assignee of part of the reversion in the whole property might (/c). Apportionment of condition for re-entry. — It has since been enacted by 22 & 23 Vict. c. ^5, s. 3, " that where the reversion upon a * lease is severed, and the rent or [*256] other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the appor- tioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him." The passing of the benefit and burden of covenants and conditions to the several, assignees of a several reversion in the case of a lease after tliat act is provided for by ss. 10-12 of the Conveyancing and Law of Property Act, 1881, 44 & 45 Vict. c. 41, as follows : — Sect. 10. Rent and benefit of lessee's covenants. — " (^1). Rent reserved by a lease and the benefit of every covenant or provision therein contained having reference to the sub- ject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other con- dition therein contained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (2). This section applies only to leases made after the commencement of this act." Sect. 11. Obligation of lessor's covenants. — " (1). The obli- Qc) Wright v. Burroughs, 3 C. B.685; 4 D. & L. 438. 411 *257 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 4. gation of a covenant entered into by a lessor with reference to the subject-matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the terra granted by the lease, be annexed and incident to and shall go with that reversionarj^ estate, or the several parts thereof notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to .time vested by conveyance, devolution in law, or otherwise; and if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation aforesaid may be taken advantage of and enforced against any person so entitled. (2). This section applies only to leases made after the commencement of this act." Sect. 12. Apportionment on severance of every condition. — "(1). Notwithstanding the severance by conveyance, surren- der or otherwise, of the reversionary estate in any land com- prised in a lease, and notwithstanding the avoidance or cessor in any other manner of tlie term granted by a lease as [*257] to part only of the land comprised therein, * every condition or right of re-entry, and every other con- dition, contained in the lease, shall be apportioned, and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or lias not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. (2). This section applies only to leases made after the commencement of this act." It will have been observed that none of these three sec- tions are retrospective, but that they all apply only to leases made after the commencement of the Act, i.e. by s. 2, on or after the 1st January, 1882. Only the 12th section, how- ever, effects any considerable alteration of tlie law. That 412 Ch. VII. S. 5.] ASSIGNMENT OF TERM. *257 section goes beyond 22 & 23 Vict. c. 85, s. 3, in its applica- tion to all other conditions in addition to the condition of re-entry for non-payment of rent, and to severance "by sur- render or otherwise " in addition to severance by conveyance ; and it also appears to dispense with the necessity of the rent having been apportioned before action of ejectment for non- payment of rent. The only alteration effected by the 10th and 11th sections is that they apply to leases generally, whereas 32 Hen. 8, c. 34, applied to leases by deed only. Sect. '5. — Assignment of Term. (a) Absolutely . Power to assign. — Every tenant, except a tenant on suffer- ance, has power to assign his term, unless he be, as is fre- quently the case (T), expressly prohibited in the contract of tenancy from doing so.^ An assignment by a tenant at will determines the tenancy,^ but not without notice to his landlord (m). "What amounts to an assignment. — An assignment must be by deed (»?), ^ and must pass the legal estate of the assignor ; for a transfer of a mere equitable interest will not make a man liable as an assignee.^ An agreement to take an assign- ment of a lease, followed by possession on the part of the equitable assignee, is not sufficient to give the lessor any right to sue the equitable assignee in equity on the cove- nants in the lease (o). The delivery and depositing of a (0 See post, Ch. XVII., s. 2. (o) Cox v. Bishop, 8 De G., M. & (m) Pinhorn v. Souster, 8 Ex. 763. G. 815; 26 L. J., Ch. 389. («) 8 &9 Vict. c. 106, s. 3 ; ante, 240. 1 Robinson v. Perry, 21 Ga. 183 ; Cooney v. Hayes, 40 Vt. 478, 482. - It is non-assignable. Cunningham v. Holton, 55 Me. 33 ; Dingley v. Buffum, 57 Mo. 381 ; Whitteniore v. Gibbs, 24 N. H. 484. 3 An assignment must be of equal solemnity with the lease, but otherwise, in majority of states, need not be by deed. In the provinces it must be, except for the limited periods. See ante, sec. 1, note. * The contrary has been held in several New York cases cited in note to sec. 1. 413 *258 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 5. lease as a security for money, without any written [* 258] * assignment, passes no interest at law, although it may create a right which may be enforced in equity (p) ; but the transfer may be complete, although the assignee has never in fact got possession of the deed of assignment, by reason of a claim of lien on the part of the assignor's attorney for the expense of preparing it (9'). An assignment, as contradistinguished from a sub-lease, sig- nifies a parting with the whole term ; ^ and when the whole {p) Doe (/. Maslin ?'. Roe, 5 Esp. (9) Odell v. Wake, 3 Camp. 394, 105 ; Williams v. Evans, 23 Beav. 239. 1 Assignment distinguished from sub-lease. — An assignment is a transfer of entire term, Bedford v. Terhune, 30 N. Y. 453 ; Ind., &c., Union V. Cleveland R. R. Co., 45 Ind. 281 ; Smiley v. Van Winkle, G Cal. (iOS ; Blu- menberg v. ]\Iyres, 32 Id. 93; and, a fortiori, a transfer for more than the term is an assignment, Langford v. Selmes, 3 Kay & Johns. 220 ; Stewart v. Long I. R. R. Co., 102 N. Y. 601 ; Selby v. Robinson, 15 C. P. U. C. 370. A transfer of part of premises is an assignment. Prescott v. De Forest, 16 Johns. (N. Y.) 159 ; WoodhuU v. Rosenthall, 61 N. Y. 383 ; Van Rensselaer's Ex'rs V. Gallup, 5 Denio (N. Y.) 454 ; Lee v. Payne, 4 Mich. 106 ; Childs v. Clark, 3 Barb. Ch. (N. Y.) 52; Cox v. Fenwick, 4 Bibb (Ky.) 538. If lessee reserve a single day, transfer is a sub-lease. Van Rensselaer's Ex'rs 17. Gallup, 5 Denio (N. Y.) 454, 460 {per Beardsley, Ch. J.) ; Davis v. Morris, 36 N. Y. 569. If lessee's transfer terminate at midnight of one day, and principal lease at noon of next, the transfer is a sub-lease. People v. Rob- ertson, 39 Barb. (N. Y.) 9. A transfer of entire term, with covenant to surrender to lessee at expira- tion, is a sublease, Piggot ),". Mason, 1 Paige (N. Y.) 412 ; Post v. Kearney, 2 N. Y. 394; Ganson lO Tifft, 71 N. Y. 48, 54; Collins v. Hasbrouck, 56 N^ Y. 157, 162, 163 ; Collamcr r. Kelley, 12 Iowa, 319, 323; Stewart v. Long I. R. R. Co., 102 N. Y. 601, 613 {per Rapello, J.), the theory being that a shred of the term or fraction of a day remained. In several of the above cases, other cove- nants were combined with the surrender covenant, and the dicta is rather con- fusing. For instance, in Piggot )'. Mason and Collamer v. Kelley, there was a reser- vation of new rent; and in Ganson i-. Tifft, there was a covenant for re-entry and conditional right to surrender during term. It is held (probably by the weiglit of autJiority) that a re-entry clause (alone) will not prevent a transfer of entire period from being an assignnient, Smiiey v. Van Winkle, 6 Cal. 605; Stewart v. Long I. R. R. Co., 102 N. Y. 601, (il3; Lloyd v. Cozens, 2 Ashm. (Pa.) 131, 137, 138; although contrary doctrine was laid down by Justice Folger, in Collins v. Hasbrouck, 5f) N. Y. 157, where an instrument reserving different rent with covenant of re-entry was licld to be a sub-lease. In Hamilton v. Read, 13 Daly (X. Y. Superior Ct.) 436, it was held that an instrument, reserving new rent was a stib-Iease, but this is ojiposed to the subsequent dirfum of the Court of Appeals in the same state, in Stewart v. Long I. R. R. Co., 102 N. Y. 601, 613. 414 Cn. VII. S. 5.] ASSIGNMENT OF TERM. *258 term or more than the whole term is made over by the les- see, although in the deed by which that is done the rent and a power of re-entry for non-payment are reserved to himself, and not to the original lessor, yet the instrument amounts to an assignment, and not a sub-lease (r), and in such case, the person to whom it is made over may sue the original lessor or his assignees of the reversion, or be sued by them as assignee of the term, on the respective covenants in the original lease, which run with the land,^ even though new (r) Hicks v. Downing, 1 Ld. Raym. 696; WoUaston v. Hakewill, 3 M. & 99 ; Palmer ;;. Edwards, 1 Doug. 187 ; G. 297 ; Langford v. Selmes, 3 Kay Thorn v. Wookombe, 3 B. & Ad. & J. 220. In Stewart v. Long I. R. R. Co., while the court admit that a covenant to surrender will ordinarily prevent the transfer from being an assignment, yet held that it would not have that effect in that case, because the transfer was for more than the term. They also held that the term did not merge in lessee's future possible fee (under covenant to purchase), so that the transfer, of more than the term^ carried all that he then had, and was, therefore, an assignment. In Linden v. Hepburn, 3 Sand. (N. Y.) 068, 670, the court held a transfer with covenant for re-entry and surrender was a sub-lease as hetiveen the lessee and his transferee. 1 Effect of assignment of term. — The assignee becomes liable directly to the lessor upon all the covenants in the lease which run with the land. Stewart v. Long I. R. R. Co., 102 N. Y. 601 ; Cox v. Fenwick, 4 Bibb. (Ky.) 638; Armstrong?'. Wheeler, 9 Cow. (N. Y.) 88; Babcock v. Scoville, 56 111. 461 ; Blake v. Sanderson, 1 Gray (Mass.) 332 ; Douglass v. Murphy, 16 Q. B. U. C. 113; Selby v. Robinson, 15 C. P. U. C. 370; Smith v. Brinker, 17 Mo. 148; Salisbury v. Shirley, 66 Cal. 223; Le Gierse v. Green, 61 Tex. 128. Conrad v. Smith, 12 Pliila. 306; Graves v. Porter, 11 Barb. (N. Y.) 692 1 Negley v. Morgan, 46 Pa. St. 281; Hannen v. Ewalt, 18 Pa. St. 9; Overman V. Sanborn, 27 Vt. 54 ; McCormick v. Young, 2 Dana (Ky.) 294. He is not liable for breaches committed after he has assigned, Crawford v. Bugg, 12 Ont. 8; Boulton v. Blake, Id. 532, 541 {per Ferguson, J.); Magill V. Young, 10 Q. B. U. C. 301 ; Walton r. Cronly, 14 Wend. (N. Y.) 63, 65 {per Sutherland, J.) ; Hintze v. Thomas, 7 Md. 346 ; nor before he took the assignment, Johnston v. Bates, 48 N. Y. Superior Ct. 180; Thomas v. Connell, 5 Pa. St. 13; but only for those committed while assignee {per Shaw, C. J., in Patten v. Deshon, 1 Gray (Mass.) 325, 329). The lessee continues liable upon all his express covenants, and he is virtu- ally a surety for the assignee, Babington v. O'Connor, 20 L. R. Ir. 246; Greenleaf v. Allen, 127 Mass. 248; Wilson v. Gerhardt, 9 Col. 585; Wall v. Hinds, 4 Gray (Mass.) 256; Boulton v. Blake, 12 Ont. 532; Stinson v. Magill, 8 Q. B. U. C. 271; Montgomery r. Spence, 23 Q. B. U. C. 39; Farmers' Bank v. Mut. Asso., &c., 4 Leigh, 69, 84 {per Tucker, J.) ; and if he pay the rent he has a remedy over against the assignee, Lehman v. Dreyfus, 37 La. An. 687 ; Fletcher v. M'Farlane, 12 Mass. 43; and also against an assignee of an assignee, Ashford v. Hack, 6 Q. B. U. C. 641. 415 *258 ASSIGNMENT, BANKRUrTCY, DEATH, ETC. [Ch. VII. S. 5. covenants are introduced into the assignment (s). Upon this principle an assignee of a term, who had granted a sub- lease for the whole term, was held in Beardman v. "Wilson to have in effect assigned over, and therefore to have ceased to be liable to the lessor or his assignee for the subsequent rent or subsequent breaches of covenant (f). The effect of the doctrine that the sub-lease is equivalent to an assignment is clearly to deprive the sub-lessor of his right to distrain (w), but it seems to be equally clear that his right to sue upon a covenant for rent remains (^-), that he may recover for use and occupation (?/), and that he may re-enter for condition broken (z). It is necessary to point out, however, that the extent of the principle, that a sub-lease for the whole of the sub-lessor's term amounts to an assignment, has been much controverted (a). Poulteney v. Holmes (5), where it was held that a sub-lease by parol for the whole of the sub-lessor's term was good to sustain an ejectment of the sub-lessor by the lessee, was questioned in Barrett v. Rolph (c), and though confirmed in (s) Palmer v. Edwards, 1 Doug. {x) Baker v. Gostling, 1 Bing. N. C. 187, n. 19. (0 Beardman v. Wilson, L. R., 4 (y) Pollock v. Stacey, 9 Q.B, 1033. C. P. 67 ; 38 L. J., C P. 91 ; 19 L. T. {z) Doe v. Bateman, 2 B. & Aid. 282 ; 17 W. R. 54. 168. (m) Parmcnter v. Webber, 8 Taunt. (a) See the authorities reviewed in 593; Brook's Abr. tit. Dette, pi. 39; R. v. Wilson, 6 M. & R. 157, n ; 1 Sm. Preece v. Corrie, 5 Bing. N. C. 24 ; L. C. in the notes to Spencer's case. Pascoe I'. Pascoe, 3 Bing. N. C. 898. {h) 1 Stra. 405. (c) 14 M. & W. 348. The assignee is entitled to receive the rents from prior sub-leases. Patten V. Deshon, 1 Gray (Mass.) 325; and is estopped to set up, tliat prior sub-lease was contrary to covenant against assigning and subletting, Sliuinway ;•. Col- lins, Id. 227; also to deny the title of lessor, Frovost v. Calder, 2 Wend. (N. Y.) 517, 523; but he may sliow that it has terminated, Williams v. Wood- ard, 2 Wend. (N. Y.) 487. If assignee hold over he may become implied tenant from year to year. De IVre Co. v. Keynen, 05 Wis. 271. Subti'iiants of assignee are liable to be ejected by lessor after proper notice to quit. Pardee v. Gray, (i(i Cal. 524. Tlie assignee may take the benefit of all covenants running with the land, and sue thereon in his own name. For example: he may sue upon tlie cove- nant to pay for permanent improvements. In ro IIaisley,44 Q. B. Up. Can. 345. 347, 349 {-per Wilson, C.J.) ; limit v. Danforth, 2 Curt. C. C. 592,003 ; Lanutti V. Anderson, Cow. (N. Y.) 302, and in the latter case for improvements made before the assignment. 416 Cii. VII. S. 5.] ASSIGNMENT OF TERxM. *2o9 Follock V. Staeey (i^), had some little doubt thrown upon it in Beardman v. Wilson (^'). Upon the preponderance oi" authority there appears to be a distinction between a sub-lease by deed and a sub-lease by parol * oiily. [* 259] The sub-lease by parol only not being operative as an assignment by virtue of 8 & 9 Vict. c. 106 (/), is said to create a lease so as to effectuate the intention of the parties Sub-lease for years by tenant from year to year. — A tenant from year to year who underlets for a long term, does not thereby assign all his estate, which may possibly continue longer than the term expressed to be granted by the sub- lease (A), and consequently retains a reversion with a title to distrain until his defeasible reversion be defeated (Q, i.e. until a notice to quit given to him has expired. Operative words in assignments. — An assignment is usually made by the word "assign," but sometimes "grant, assign, and set over " are used ; no particular words are necessary, provided the intention of the parties be sufficiently ex- pressed (A:). Where a lessee for life granted all his estate and interest to A. and his executors : it was held not to amount to an assignment, because a grant to a man and his executors could not convey an estate for life, being a free- hold (?). An agreement to assign on payment of a sum by instalments, the assignee in the meantime to perform the covenants in the lease and keep the assignor harmless^ and the assignor to re-enter on non-payment of any instal- ment, is merely an agreement for an assignment and not an assignment (m). Where a lessee agreed to execute an (d) 9 Q. B. 1033. sion shall not be necessary to such (e) L. R., 4 C. P. 17. relation." (/) Or before that Act, by the (h) Oxley v. James, 13 M. & W. Statute of Frauds. , 200. (9) An Irish statute, 23 & 24 Vict. (/) lb. c. 154, s. 3, enacts, in reference to the (^) See Forms of Assignments, whole subject, and making no dis- post. Appendix B., Sects. 27, 28. tinction between deed and parol en- (/) Earl of Derby v. Taylor, 1 East, acts, " that the relation of landlord 502. and tenant shall be deemed to be (;«) Hartshone v. Watson, 5 B. N. founded in the express or implied C. 477. contract of the parties, and a rever- 417 *260 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 5. effectual assignment of two leases of premises, " as he held the same for terms of twenty-eight years," and the assignee agreed to accept a proper assignment accordingly, without requiring the lessor's title, it was held that he was bound to take an assignment of two consecutive leases, though the second was void being executed under a power which had not been pursued (?i). An assignment in consideration of quarterly payments for the remainder of the term will not upon a payment being made constitute the assignee a tenant, so as to give the assignor a right to distrain for payments subsequently due (o). Assignment for benefit of creditors. — In White v. Hunt (p), a debtor assigned to a trustee for the benefit of his creditors "all his goods and chattels, personal estate, substance and effects whatsoever, and all his right, title, property, benefit, claim and demand whatever therein." It was held that these words passed a term, and rendered the trustee liable as assiofnee for rent.^ [*260] * Usual covenants in assignments. — The proper and usual covenants on the part of the assignor of a term, viz., that the lease is in full force : that all the rent, covenants and conditions have been i)aid, performed and observed to that time : that notwithstanding any such act or thing as aforesaid he has power to assign : for quiet enjoy- ment by the assignee during the remainder of the term, with- (ri) Spratt v. Joffcry, 10 B. & C. (/») L. K., G Ex. .32; 40 L. J., Ex. 249; and see Tweed v. Mills, L. K., 1 23; '23 L. T. 55'.); ovorniliiig Carter C. P. 39. ■ I'. ^Yarne, M. & M. 479. ' (o) Ilazcldine v. Heaton, 1 C. & E. 40. ^ Assignments for creditors. — A general voluntary aaaignmcnt will transfer the rit). Remote assignee. — There is, however, an implied promise on the part of each successive assignee to indemnify the original lessee against breaches of covenant conmntted by each assignee during the continuance of his own estate, and (u) Barnard ;■. Gadscall, Cro. Jae. (z) Harris ?•. Goodwyn, 9 DowL 309 ; Thursby v. Plant, 1 Wnis. Saund. 401) ; Burnett r. Lynch, 5 B. & C. 689. 240. («) Wolvcridge v. Steward, 1 C, M. (x) Stevenson v. T^anibard, 2 East, & R. 044. 576 ; Canipl)ell i;. Lewis, ;5 B. & A. 392. (/,) Coucli v. Tregoning, L. R., 7 Ex. (y) As to wliat eovenants "run 88; 41 L. .L, Ex. 97; 26 L. T. 286; witii tlic land," see utilp, 10:j. 20 W. li. r,m. ' See note, ante, " Effect of assignment of term." 420 Cii. VII. S. 5.] ASSIGNMENT OF TERM. *262 this promise is implied although such assignee may have covenanted to indemnify his immediate assignor against all subsequent breaches (c). In an action by the assignor claiming indemnity from the assignee for breaches of covenant in the lease, the court will merely direct payment on account of breaches already com- mitted, and will not make a general declaration of the as- signor's right to indemnity (c^). "When the assignee's liability commences. — An assignee of a term may be sued on the covenants which run with the land,^ although he has not taken actual possession (e) ; ^ so the assignee of an assignee is liable, although he has not taken actual possession, for breaches of covenant happening after the assignment to him (/), and before any assignment over by him (^) : so a mortgagee by assignment of the term, though not in possession, is liable to perform the cove- nants in the lease Avhich run with the land (Ji). * To avoid this, mortgages of leaseholds are gener- [*262] ally made by way of under-lease (€). Where a lessee covenanted for himself and his assigns to pull down certain old houses and build others within seven years, but did not perform the covenant, and, after the end of seven years, assigned, an action of covenant was held not to lie against the assignee because the breach was complete before the assignment, and the liability of the assignee depends solely upon the privity of estate ; had the covenant, however, been broken after the assignment, as if the lessee had assigned before the seven years expired, the assignee would have been liable (Jc). And he would have been liable to an ejects (c) Moule V. Garrett, L. R., 5 Ex. (9) Beardman v. Wilson, L. R., 4 182; 41 L. J., Ex. 62 (Exch. Ch.) ; C. P. 57 ; 17 W. R. 54. 26 L. T. 367 ; 20 W. R. 416. {h) Stone v. Evans, Peake, Ad. Ca. ((/) Lloyd V. Dimmack, L. R.,7Ch. 94; Burton v. Barclay, 7 Ring. 745; D. 398; 47 L. J., Ch. 398; 38 L. T. Williams v. Bosanquet, 1 Brod. & B. 173; 26 W. R. 458. 2.38; overruling Eaton v. Jaques, 2 (e) Walker v. Reeves, 2 Doug. 461, Doug. 455. n.; 3 Id. 19. (/) P„m, 264. (/) Taylor v. Shum, 1 Bos. & P. {k) Churchwardens of St. Saviour's, 21. Southwark v. Smith, 1 W. Blac. 351; ^ See note, ante, "Effect of assignment of term." 2 See note, ante, sec. 1, " Assignments. How made." 421 *262 ASSIGNJVIENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 5. ment for the forfeiture committed prior to the assignment to him, unless such forfeiture had been waived (Z). May assign to man of straw. — An assignee being liable to the original lessor or his assigns only in respect of privity of estate, may get rid of such liability by an assignment over (m), except as to previous breaches ; ^ with respect to which he will continue liable both at law(w) and in equity (o). Such an assignment may be made even to a pauper or to a person imprisoned for debt (jt>), but the assignee will continue liable upon any express covenant entered into by him in the assignment to himself {q}. The assignee of a term, declared against as such, has been held not to be liable for rent accruing after he had assigned over, though it was stated that the lessor was a party executing the assignment, and agreed thereby that the term, which was determinable at his option, should be ab- solute (r). But if the breach had been continuing, it would have been otherwise : as if there had been a covenant to re- pair within a certain time after notice, and the repairs were not done according to such notice, though the premises were out of repair before the assignment (6-). Wolveridge v. Steward. — In Wolveridge v. Steward the lessee assigned to A. his interest in demised premises by indenture, executed by both parties, " subject to the payment of the rent and performance of the covenants and agreements .3 Rurr. 1272; Grcscott v. Green, 1 (») Harvey v. King, 2 C, M. & R. Salk. 109; Brittin v. Vaux, Lutw. 18; Pitclier r. Tovey, 1 Salk. 81. 109; Hawkins v. Sherman, 3 C. & P. (o) Pliilpot v. Hoare, 2 Atk. 219; 459. Anib. 480; Treade v. Coke, 1 Vern. (/) Bennett v. Herring, 3 C. B., N. lOf); 2 Eq. Ca. 47; Onslow v. Corrie, S. 370. 2 Madd. '.VM). (m) Valiant v. Dodomede, 2 Atk. (/>) Valiant ?'. Dodomode, 2 Atk. 546; Pitdicr v. Tovey, 12 Mod. 23; 446; I)e Kcux v. Nash, 2 Stra. 1221; Lp Keux V. Nash, 2 Sir. 1222 ; Walker Taylor v. Shum, 1 Bos. & P. 21 ; On- V. Uicves, 2 Doug. 461, n. ; 3 Id. 19; slow v. Corrie, 2 Madd. 330. Taylor v. Shuin, 1 Bos. & P. 21; Co. (7) Wolveridge v. Steward, 1 Cr. Lit. 3 a, 356 b; Boulton v. Canon, & M. «!44. rrecm. .336; Ciiancellor v. Poole, 2 (;) Ciiancellor i;. Pople, 2 Dong. Doug. 764; Beardman v. Wilson, L. 7(i4. R., 4 C. P. 57 ; 17 W. 11. 54. (s) Com. Dig. lit. Covenant (B.). ' Sec note, fijitc, "Effect of assignment of term"; also, Magill i;. Young, 10 Q. B. U. C. 301. 422 Cii. VII. S. 5.1 ASSIGNMENT OF TERM. *263 reserved and contained in the original lease." A. took possession and occupied the premises under this * assignment, and before the expiration of the term [*263] assigned to a third jjerson. After the assignment over the lessee was called upon by the lessor to pay rent which the assignee had suffered to be in arrear ; it was held, that the lessee could not maintain an action of covenant against A. in respect of such breach, the words, " subject to the payment of rent, &c.," being words of qualification and not words of contract (^). Rights of assignees of a term. — Assignees of a term may sue the reversioner, or his assigns, for breaches of covenant running with the land which are committed by him or them after the assignment (?/) ; an assignee of a lease by estoppel is no exception to the rule (.?•). But an assignee cannot maintain an action upon a breach of covenant before the assignment to him (^), nor for the breach of any covenant which does not, b}" touching or concerning the demised premises, run with the land or the reversion (2;). (b) By Way of Mortgage. Mortgagee's liability. — A mortgagee of a leasehold estate by ass/(//iment is liable, so long as he has the legal estate, to perform the covenants which are obligatory on any ordinary assignee, whether he be in possession or not(a):i he may (t) Wolveridge v. Steward (in (z) See Spencer's case, 1 Smith L. error), 1 Cr. & M. 644 ; 3 Moo. & Sc. C. 60; and Chap. V., Sect. 8 (b), ante, 561. 162. (m) Bac. Abr. tit. Covenant (E. 5). (a) Stone r. Evans, Peake, Ad. Ca. (.r) Ciithbertson v. Irvinj?, 4 H. & 94 ; 7 East, 341 ; Williams i\ Bosan- N. 742 ; 6 Id. 135; 28 L. J., Ex. 306; quet, 1 Brod. & B. 238; Westerell p. 29 Id. 485. Dale, 7 T. E. 312 ; Burton v. Barclay, (//) Lewis )•. Ridge, Cro. Eliz. 863 ; 7 Bing. 745. Martyn v. Williams, 1 H. & N. 817; 26 L. J., Ex. 117. 1 Mortgages of term, (a) Effect. — Mortgagee takes all the lessee's rights, subject to conditions in mortgage. Yates ?•. Kinney, 19 Neb. 275. (6) Possession bi/ mortfjaf/ee : whether essential to liahillti/. It has been held in many cases in the United States that an assignee by mortgage, nnlike an absobne assignee, is not liable unless he take possession. Astor v. JNIiller, 2 Paige (N. Y.) 68, 76, 77 (and see per Walworth, Chan.) ; Babcock v. Scoville, 423 *264 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 5. assign it without being in actual possession (J). A mort- gagee may avoid the liability of an assignee by taking a sub- lease instead of an assignment, and this is frequently done.. If he become assignee, equity will not afford him any relief, though he may offer to forego his charge and lose his money (^). A trustee to whom a lease is assigned to secure an annuity to a third person is strictly an assignee (c?). A power given to a trustee in a mortgage deed to sell if the mortgagee requests it, does not necessarily imply a right to enter on the premises (p). Equitable assignments by deposit. — Every assignment of a lease is void at law unless made by deed (/).^ Where a lease is deposited b}^ way of equitable mortgage as a security for money advanced (^), it is clear that the depositee has no legal title (A) ; and it would seem to be the better opinion that the lessor has no remedy in equity against the [*264] depositee, upon the covenants in * the lease (i), even (b) Smartle i'. Williams, 3 Lev. (g) See Williams ?•. Evans, 23 388; 8 & 9 Vict. c. 100, s. 5. Beav. 239; Matthews r. Gnodday, 31 (c) Anon., Freem. Ch. 253; Cas- L. J., Ch. 282; Bulfin v. Dunne, 12 herd r. Att.-Gen., G Price, 411; Sparkes Ir. Ch. R. 67. V. Smith, 2 Vern. 275. (h) Doe d. Maslin v. Eoe, 5 Esp. (d) Gretton v. Diggles, 4 Taunt. 105. 706. (0 Moores v. Choat, 8 Sim. 508 (e) Watson i'. Waltham, 2 A. & E. (overruling Flight v. Bontley, 7 Sim. 485. 149). (/) 8 & 9 Vict. c. 106, s. 3. .56 111. 461, 464 (per Sheldon, J., distinguishing mortgages from absolute assignments) ; Calvert r. Bradley, 16 How. 580, 695 (prr Daniel, J., indicating his opinion and limiting 12 Pet. 201, and 13 Pet. 294) ; Fanners' Bank v. Leigh (Va.) 69, 83, 84 ; Weidner r. Foster, 2 Penn. 23, 26 (per Uogers, J.) ; Walton r. Cronly's Adm'r. 14 Wend. (N. Y.) 63. The above cases, however, seem largely to rest upon the theory of mort- gages of the civil law as laid down in Eaton r. Jaques, Doug. 454, followed in New York and many .states, but overruled in England, and not followed in many of the states. It aj)pears by above cases tliat possession is considered essential to liabil- ity in some states where tiie common law theory prevails. It docs not seem that possession is essential in Ontario. Cameron v. Todd, 22 Q. B. U. (' 390; Magrath ;-. Todd, 26 Id. 87. * An assignment of less than a freehold interest need not (generally) be by deed in the United States unless required to be by some special statute, unless the lease, also, is hy deed. See ante, sec. 1, 3, notes. The Statutes of Frauds do not usually require it. 424 Ch. VII. S. 0.] SEVERANCE OF TERM. *264 altliouirli tlie depositee be in possession (/c). It has been held, too, in a case where the depositee not only entered, but also paid rent in arrear, and was accepted by the lessor as owner of the lease, the lessor had no equity to compel the depositee to take a legal assignment of the lease (?). Sect. 6. — Severance of Term. An assignee of part of the land cannot be charged, in an action of debt, with the whole rent, but only for a propor- tionate part thereof Qtri)} But an assignee of part is liable to a distress for rent due for the whole of the demised prem- ises (wi), and to an action on every covenant running with the land and affecting the part assigned, inasmuch as an assignee cannot discharge himself of all his liability to the covenants running with the land, which are in their nature divisible (n). The assignee of part may also sue without joining his co- assignees, as was held in a case where an assignee of five- sixths of a sub-lease recovered damages from the mesne land- lord for breach of a covenant for renewal of the head lease Qnii). (A) Cox V. Bishop, 8 De G., M. & 479 ; Hare v. Cator, Cowp. 766 ; Hol- G. 815; 26 L. J., Ch. 389. ford v. Hatch, 1 Doug. 183. (/) Moore v. Greg, 2 De G. & S. (w) Congham v. King, Cro. Car. 334. But see Luc;as v. Comerford, 1 221 ; Ganion v. Vernon, 2 Lev. 231 ; Ves. jun. 235; Close v. Wilbcrforce, Stevenson v. Lambard, 2 East, 576. 1 Beav. 112. {nn) Simpson ?;. Clayton, 4 B. N. C. (»i) Curtis V. Spitty, 1 Bing. N. C. 758. 756 ; Merceron v. Dowson, 5 B. & C. ^ Severance of term. — Assigrtees of separate parts of demised premises are separately and not jointly liable to the lessor, each for his proportionate part. Babcock i-. Scoville, 56 III. 461 ; Van Rensselaer v. Bradley, 3 Denio (N. Y.) 135; Van Rensselaer's Exrs' v. Gallup, 5 Id. 454; Astor v. Miller, 2 Paige (N. Y.) 68, 69 (and see per Walworth, Chan.) ; Weidncr v. Foster, 2 Penn. 23; Farley v. Craig, 11 N. J. L. 262. In Deniainville v. Mann, 32 N. Y. 197, it was held that the assignee of an undivided part, if in possession of whole was liable for whole rent, but in St. Louis Pub. Schools u. Boatmen's Ins. Co., 5 Mo. App. 91, in a similar case, just the opposite was held. Where the rent is a service indivisible, assignment by lessee multiplies {]ier Jewett, J., in Van Rensselaer v. Bradley, 3 Denio (N. Y.) 135, 141, 142), and by lessor extinguishes it. 425 *265 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 7. Sect. 7. — Suh-lease. Sub-lease for vrhole term is an assignment. — A sub-lease is a demise by a lessee (or his assignee) for a less term than he himself has.^ A demise for the whole term, if it be by deed, amounts to an assignment (o).^ A fortiori, a lease by deed for a period beyond the term will operate as an assignment.^ But there are many cases in which a sub-lease by parol for the whole term has been allowed to operate as such, so as to give the under-lessor a right to an action for rent (jt?), but not a right to distrain (^). What sub-leases are good. — A sub-lease for years made by a lessee for years, to commence immediately on his death, is good, if he die during his own term ; therefore a man pos- sessed of a term for twenty years may grant the lands for nineteen years to commence after his death, and it [*265] will be good for * so many of the twenty years as shall be unexpired at the time of his death. Where a lessee has power to renew his term upon giving six months' (o) Hicks y. Downing, 1 Ld. Rayni. 44r) ; Pollock v. Stacy, 9Q. B. 1033; 99 ; Wollaston v. HakLnvill, 3 M. & G. Williams r. Hayvvard, 1 E. & E. 1040 ; 297; Beardman v. Wilson, L. R., 4 Baker v. Gostling, 1 Bing. N. C. 19; C. P. 57; 38 L. J., C. P. 91; 19 L. T. In re Turner, 11 Ir. Ch. K. 304. 282; 17 W. R. 54. (7) Preece i-. Corrie, 5 Bing. 24; (p) Poulteney v. Holmes, 1 Str. Pascoe v. Pascoe, 3 Bing. N. C. 898. 405; Smith v. Mapleback, 1 T. R. 1 Sub-lease, (a) What is it. — See ante, sec. 5, note, " Assignment, dis- tinguished from sub-lease." A lessee may sublet unless restrained by terms of lease. Goldsmith v. Wilson, 08 Iowa, 085. Lease for twenty years by tenant for lives is a sub-lease, Jackson v. Silvernail, 15 Johns. (N. Y.) 278 ; or for two years, by tenant for seven years, Jackson v. Harrison, 17 Johns. (N. Y.) GO.* (6) Remedies and lidliilities. — Sub-lessee's remedies are against the lessee, Quay V. Lucas, 25 Mo. App. 4; and he is not liable to the lessor, Quackenboss V. Clarke, 12 Wend. (N. Y.) 487, 492; Williams v. Woodard, 2 Id. 487, 492 (per Savage, Ch. J.); Gibson i;. Mullican, 58 Tex. 430; Fulton r. Stuart, 2 Ohio, 210. In Missouri a sub-lessee is liable, by statute, for rent directly to the lessor. Rev. St. of Mo. sec. 3095 ; Hicks v. Martin, 25 Mo. App. 359. •^ Bedford i;. Terhune, 30 N. Y. 453; Ind., &c., R. R. Co. v. Cleveland R. R., 45 Ind. 281 ; Smiley v. Van Winkle, Cal. 005 ; Hlumenberg v. Myres, 32 Id. 93. It is not always necessary to be by deed in United States. « Stewart v. Long I. R. R. Co., 102 N. Y. 001 ; Selby v. Robinson, 15 C. P. U. C. 370. 426 Ch. VII. S. 7.] SUB-LP]ASE. *265 notice of his intention before its expiration, and upon his preparing a fresh lease, &c., he cannot, though he gave notice of such his intention, demise the premises to another party beyond the expiration of the first term, unless he prepare such fresh lease and get it executed, or at least endeavour so to do (/•). Rights of lessor against sub-lessee. — There being no privity of contract between the lessor and the sub-lessee, the lessor cannot sue the sub-lessee on any of the covenants of the original lease (s), but the lessor may distrain on the sub- lessee for the rent payable under the original lease, and may also avail himself of a condition for forfeiture in the original lease (^). An injunction has also been granted to restrain a sub- lessee from permitting a sale by auction in contravention of a covenant in the original lease (it), and to restrain a sub-lessee from using the demised premises for a particular trade, in contravention of a covenant in the assignment of the premises to his lessor (a;). Sales of sub-leases. — A contract to sell a lease is not satisfied by the conveyance of a sub-lease (?/), for a sub- lease might become void if the covenants and conditions in the original lease were not duly performed (2). But on the purchase of a sub-lease it is not a valid objection to the title that the sub-lease may become forfeited by the non-perfoi'mance of the covenants in the original lease (a). It is the duty of a person contracting for a sub-lease to ascertain the contents of the original lease (J). Covenant to perform covenants of head lease. — A sub-lease should always contain an express covenant by the sub-lessee, (?•) Mackay v. Mackreth, 4 Doug. Kay, 550; Blake v. Pliinn, 3 C. B. 213. 976; Henderson v. Hudson, 15 W. K. (s) Holford r. Hatch, 1 Doug. 183. 800; Sheard v. Venables, 36 L. J., (0 Arnold v. Woodward, 6 B. & C. Ch. 922 ; 15 W. R. 1166 ; Duddell v. 519. Simpson, L. R., 2 Ch. Ap. 102. (k) Parker v. Wliyte, 1 H. & M. (z) Doe (/. Muston v. Gladwin, 6 167 ; 32 L. J., Ch. 520. Q. B. 953 ; Logan v. Hall, 4 C. B. 598. (.r) Clement v. Welles, L. R., 1 Eq. (a) Hayford v. Criddle, 22 Bcav. 209; 35 Beav. 213. 477. (.V) Madeley v. Booth, 2 De G. & (h) Cosser v. Collinge, 3 Myl. & Sm. 718; Darlington v. Hamilton, K. 283. 427 *266 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 7. to observe and perform all the covenants and conditions in the original lease, except those which he is especially exempted from performing ((?). Such a contract was held in the important case of Hornby V. Cardwell, Hanbnry, Third Party (cZ), to amount to a contract of indemnity, so that the sub-lessee is liable to the mesne landlord for the costs of an action (reasonably defended) by the head landlord against the mesne landlord on the contracts of the head lease, where as there is no such indemnity if the contract of the sub-lessee be merely to perform similar contracts to those contained in the head lease (g). [*266] * Bringing in sub-lessee as third party. — Where there is a contract to perform all the contracts of the head lease, and both the contracts of the head lease and the mesne lease are broken, the head landlord (although he can eject) cannot sue the sub-tenant for damages, there being no privity of contract between them ; but the head landlord may sue the mesne landlord, who, in his turn, may sue the sub-tenant, or pursue what seems to be the more convenient course of bringing him in as third party under sect. 24, sub-s. 3 of the Judicature Act, 1873, and Order XVI., Rules 17-19 of the Rules of the Supreme Court. If this be done, the High Court has a discretion, under Order LV., to order the sub-tenant so made third party to pay the costs of an action by tlie head landlord against the mesne landlord reasonably defended (/). Sub-lessee not affected by surrender. — A sub-lessee is not affected by the voluntary surrender of the lease by his mesne landlord to the superior landlord ; nor, if he has knowledge of it, is he bound in any way to treat it as a notice to (piit (/y). (c) See Form, Appendix A., Sect. overruling Neale v. Wyllie, 3 B. & C. 14. C33. (d) L. H., H Q. B. D. 329; 51 L. J., (/) Hornby v. Cardwell, Ilanbury, Q. B. 89; 45 L. T. 781; .30 W. R. TliiVd I'nrty, T>. 11., 8 Q. B. 1). 329— 203— C. A. C. A. (r) Logan i'. Ilali, 4 C. B. MB; (;/) Mellor v. Watkins, L. R., 9 Penley v. Watts, 7 M. & W. (iOl ; Q. B. 400; 23 W. R. 66. Walker v. Walton, 10 M. & W. 249; 428 Cii. VII. S. 8.] ATTORNMENT, *267 Sect. 8. — Attornment. Origin of attornment. — After the statute Quia emptores (7i), by which subinfeudation was prohibited, it became neces- sary when the reversioner or remainderman after an estate for years, for life or in tail, granted his reversion or remainder, that the particular tenant should attorn to the grantee (i). This necessity of attornment was in some degree diminished by the Statute of Uses (/c), whereby the possession was immediately executed to the use : and by the Statute of Wills (Z), by which the legal estate was immediately vested in the devisee. Substitution of notice for attornment. — Attornments, how- ever, have long been rendered unnecessary in nearly every case by the 4 Ann. c. 16, s. 9, which enacts, that "all grants or conveyances, by fine or otherwise, of any manors or rents, or of the reversion or remainder of any messuages or lands, shall be good and effectual to all intents and purposes without any attornment of the tenants of any such manors, or of the land out of which such rents shall be issuing, or of the particular tenants upon whose particular "estates any such reversions or remainders shall and may be expectant or depending, as if their attornment had been had and made " (m) ; but by sect. 10 it is provided that " no such tenant shall be prejudiced * or damaged by pay- [*267] ment of any rent to any such grantor or conusor, or by breach of any condition for non-payment of rent, before notice shall be given to him of such grant by the conusee or grantee" (w). Attornments to strangers void. — By 11 Geo. 2, C. 19, s. 11, attornments made by tenants to strangers claiming title to the estate of their landlords shall be null and void, and their landlords' possession not affected thereby, unless made "pur- (A) 18 Edw. 1, St. 1. (m) This appears to have beer, (i) Shep. Touch, chap. xiii. overlooked in Edwards v. Wickwar, (A;) 27 Hen. 8, c. 10; Rivis v. L. R., 1 Eq. 400. Watson, 5 M. & W. 255. (n) See Cook v. Moylan, 1 Exch. (/) 34 & 35 Hen. 8, c. 5, repealed 67 ; 5 D. & L. 101 ; Cole Ejec. 229, and re-enacted by 1 Vict. c. 26. 473. 429 *267 ASSIGNMENT, BANKRUPTCY, DEARTH, ETC, [Ch. VII. S. 8. suant to and in consequence of some judgment at law, or decree or order of a court of equity; or made with the privity and consent of the landlord or landlords, lessor or lessors ; or to any mortgagee after the mortgage is become forfeited." Attornment by mortgagor to mortgagee. — For the purpose of securing mortgage interest by the preferential powers of distress for rent, it has been the practice for mortgagors to " attorn tenants " to their mortgagees. The cases upon this subject have been already considered (o). Assignee may sue or distrain without attornment. — An assignee of the reversion, whether by way of mortgage or otherwise, if he has given due notice under 4 Ann. c. 16, s. 9, may sue or distrain for the rent (jo). It makes no dif- ference that the previous tenancy was only from year to year (9'). But a prior mortgagee is not an assignee of the reversion, and therefore cannot distrain or sue for the rent until after the mortgagor's tenant has attorned to him, and so created a new tenancy as between them (r). After an attornment the mortgagee may distrain for the arrears of rent thereby admitted to be due (s). Such attornment may be made " after the mortgage is become forfeited " without the assent of the mortgagor (^). No stamp on mere attornments. — An instrument in writ- ing, professing to be a mere attornment, but which is in fact an agreement to create a fresh tenancy on new terms, requires a stamp as a lease or as an agreement for a lease (it). But a mere memorandum of attornment, not creating any new ten- (0) Ante, ch. vi., sect. 6. (/) Moss v. Gallimore, 1 Smith L. (;0 Lumlcy r. Ilodfjson, IH East, C. 029 (7th cd.) ; Doe ) Doe (/. Hughes r. Jones, 9 M. (s) Doe ), or to [*271] recover the rent from any under-tenant by distress or action in the usual manner (e). The purchaser becomes liable to the rent and covenants hi the lease in like manner as any other assignee of the term (c?). But the .lessee con- tinues liable on his covenants in the lease to pay rent and to repair, &c., notwithstanding the term has been taken from him under the execution (e), in like manner as he would have done had he executed an assignment of the term to a purchaser, in which case he would liave probably had the usual covenant of indemnity from such rent and covenants. ^ (m) Sparrow v. Earl of Bristol, 1 {z) See Atkinson on Sheriff. Marsh. 10. (a) Taylor v. Cole, 3 T. R. 295; 1 (x) Scott V. Scholey, 8 East, 467; Smith L.'c. 115 (6th ed.) ; Kumball Metcalfe v. Scholey, 2 Bos. & P., N. v. Murray, 3 T. R. 298 ; Miller v. Par- R. 461; Burden v. Kennedy, 3 Atk. nell, 2 Marsh. 78. 739; Martindale v. Bootli, 3 B. & Ad. (6) Cole Ejec. 569. 498; The Mayor, &c., of Poole ;;. (c) Lloyd v. Davies, 2 Exch. 103; Whitt, 15 M. & W. 571. Mayor, &c., of Poole v. Whitt, 15 M. (y) Gore v. Bowser, 3 Sni. & Giff. & W. 571. 1 ; 24 L. J., Ch. 316, 440 ; Partridge (^0 1 I^oug. 184. V. Foster, 10 Jur., N. S. 741 ; 12 W. (0 Auriol d. Mills, 4 T. R. 98 ; 1 R. 1127. Smith L. C. 782 (6th ed.). ^ Purchase of reversion. — The purchaser of a reversion at judicial sale is entitled to the rents only from the date of acknowledgment qf sheriff's deed, Scheerer v-. Stanley, 2 Rawle (Pa.) 276; Bank of Penn. v. Wise, 3 Watts (Pa.) 394 ; Braddec r. Wiley, 10 Id. 362 ; and in Farmers & Mechanics' Bank v. Ege, 9 Id. 436, it was held that rent paid in advance, according to the 435 *272 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch, VII. S. 9. (b) Elegit. "Writ of elegit. — Under a writ of elegit the sheriff, instead of levying, delivers to the creditor who elects this remedy in preference to a levy, the lands of the debtor. The Statute of Westminster 2 from which the writ is derived, provided for the delivery of " all the chattels " and half the land. The Bankruptcy Act, 1888, s. 146, enacts that a writ of elegit " shall not extend to goods," but it is submitted that a leasehold interest does not come within the expression '' goods '' in that section. The statute 1 & 2 Vict. c. 110, s. 11, authorizes the delivery under an elegit of all the lands instead of half only. The words of this section, which appear to include leaseholds (/), are that the sheriff may '' make and deliver execution unto the party in that behalf suing of all such lands, tenements, tithes, rents, and heredit- aments, including lands and hereditaments of copyhold and customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seised or possessed of at the time of entering up the said judg- ment (//), or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might, without the assent of any other person, exercise for his own benefit" (K). The same land cannot be extended under two or more elegits, nor can the sheriff be entitled to poundage under more than one of such writs (i). But if two or more elegits be delivered to the sheriff, he should execute and give [*272] prioi'ity to that which was first delivered to *him, and return to the otlier that he has not delivered the (/) See Kolleston r. Morton, 18 M. subsequent hnuci Jlcle purt-liasers ami & W. at p. 182, decided on the Irish niortgafjees will not be affected, uii- Act, 3 & 4 Vict. c. 105 ; Harris v. less the judjjment, &c., be duly regis- Davidson, 1.5 Sim. at p. 1. "58, decided tered. See ;)o.s7, 272. on 8. 13 of 1 & 2 Vict. c. 110. (h) 1 & 2 Vict. c. 110, s. 11. ((/) The estates and interests of • (;) Carter r. Hughes, 2 H. & N. 71 1. contract for current year, coidd not be collected over again, though otherwise by statute, if it had been voluntarily paid. '4^0 Ch. VII.S. 9.] WHITS OF EXECUTION (ELEGIT). *272 land to the plaintiff by a reasonable price and extent, the same having been already extended and delivered to A. B. under a writ of elegit dated, &c., which had previously been delivered to him to be executed according to law. The sheriff does not usually deliver actual possession of the property to the execution creditor : but it seems that he may lawfully do so where the debtor himself is in occu- pation (^). Tenants of the debtor cannot be turned out of possession under an elegit (^). The writ and inquisition thereon, when returned and filed, operate only as an assign- ment of the reversion ; and therefore the judgment creditor cannot maintain ejectment against the tenants in possession until after their respective terms have expired or been duly determined by notice to quit or otherwise (m). But he may, like any other assignee of the reversion, sue or distrain for the rent which becomes due after the filing of the writ and the return thereto, and that without any previous attorn- ment by the tenant (ti), provided the writ and inquisition be valid, but not otherwise (o). He is not entitled to any rent which became due before the inquisition, although after the delivery of the writ to the sheriff (j^). He may give a ten- ant such notice to quit as the debtor himself might have given, and afterwards maintain ejectment (^q). If the ten- ancy commenced after the judgment was entered up and duly registered, an ejectment may be maintained against such tenant without previous notice to quit (r). So if the debtor himself is in actual possession (s). When the debt and costs have been satisfied, and that appears upon an account taken by the master, the court will (Jc) Rogers v. Pitcher, Taunt. (p) Sharp v. Key, 8 M. & W. 379; 206; Chatfield v. Parker, 8 B. & C. 9 Dowl. 770. 543. (f/) Cole Ejec. 566. (/) Taylor v. Cole, 3 T. R. 295. (r) Doe d. Putland v. Hilder, 2 B. & (w) Doe (I. Da Costa v. Wharton, A. 782; Doe d. Evans v. Owen, 2 C. 8 T. R. 2 ; Cole Ejec. 566. & J. 71 ; but see 27 & 28 Vict. c. 112, (n) Lloyd v. Davies, 2 Exch. 103; s. I, post. Ramsbottom v. Buckhurst, 2 M. & S. (s) Doe d. Parr v. Roe, 1 Q. B. 565. 700 ; Doe d. Roberts v. Parry, 13 M. (o) Arnold v. Ridge, 13 C. B. 745; & W. 356; 2 D. & L.430 ; Cole Ejec. Cole Ejec. 566. 566. 437 *273 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cii. VII. S. 9. order possession of the land to be restored to the defend- ant (0- Registration of judgments, &c. — Judgments, &C., will not affect lands situate in ^Middlesex or Yorkshire, as against bona fide purchasers and mortgagees, until a memorial thereof is registered pursuant to the statutes in that behalf (m). In those and also in other counties, judgments, &c. must be reoistered -svith the senior master of the Common Pleas, and execution thereon actually executed and registered, other- wise they will not prejudice subsequent bona fide [*273] purchasers and mortgagees, with or without * notice of the judgment (a-). In the counties palatine of Lancaster and Durham, judgments, &c. must be registered with the proper officers of the courts there (i/), and execu- tion thereon actually executed and registered. By 23 & 24 Vict. c. 38, s. 1, " no judgment, statute or recog- nizance to be entered tip after the pasmig of this act (z) shall affect any land (of whatever tenure) as to a bona fide pur- chaser for valuable consideration, or a mortgagee (whether such purchaser or mortgagee have notice or not of any such judgment, statute or recognizance), unless a writ or other due process of execution of such judgment, statute or recog- nizance shall have been issued and registered as hereinafter is mentioned before the execution of the conveyance or mort- gage to him, and tlie payment of the purchase or mortgage money by him : provided always that no judgment, statute or recognizance to be entered up after the passing of this act (a) nor any writ of execution or other process thereon, shall affect any land, of whatever tenure, as to a bona fide pur- chaser or mortgagee, although execution or other process shall have issued thereon and have been duly registered, unless such execution or other process shall be executed and (0 Trice v. Yarney, 3 B. & C. 733 ; (//) 18 & 19 Vict. c. 15. HukIk-s v. Lumloy, 4 E. & H. 274. (c) 2:5rd July, 1860. If entered up («) Benham v. Keane, 31 L. J. Cli. after 29tii July, 1804, see 27 & 28 129; 8 Jur., N. S. 604. Vict. c. 112, s. 1. f.r) 1 & 2 Vict. c. 110, 8. 19; 2 & 3 {a) 23r(l July, 1800. If entered up Vict. c. 11 ; 3 & 4 Vict. c. 82; 18 & after 29th July, 1804, see 27 & 28 19 Vict. c. 15 ; 22 & 23 Vict. c. ,35, s. Vict. c. 112, s. 1. 22 ; 23 & 24 Vict. c. 38, supra ; 27 & 28 Vict. c. 112. 438 Cii. VII. S. 10.] BANKRUPTCY OF LESSOR. *274 put in force within three calendar months from the time when it was registered." By 27 & 28 Viqt. c. 112, s. 1, " no judgment, statute or recog- nizance to be entered up after the jiassing of this act (/>) sliall affect any hmd (of whatever tenure) until such land sliall have been actually delivered hi execution by virtue of a writ of elegit or other lawful authority, in pursuance of such judgment, statute or recognizance." And by sect. 3, the writ itself must be registered pursuant to 23 & 24 Vict. c. 38; after which a summary remedy is given by j)etition to the Chancery Division of the High Court for a sale of the debtor's interest in the land ( ; (Jienn v. Howard, 05 Md. 40. If the interest is beneficial, he may he compelled to accept. Exp. Fuller, 2 Story, 327. 440 Cii.VII. S. 11.] BANKRUPTCY or LESSEE. *275 time been comiuonly inserted in leases ; and in 1787 it was held in Roe d. Hunter v. Galliers (m), that sueh a proviso was perfectly good. Sueh a proviso, in all except building- leases, is at the present day perhaps more commonly inserted than not, but it has been held nevertheless not to be a "usual" one (w). A proviso * f or re-entry if the [*275] lessee should be bankrupt or file a petition in liquida- tion, in a lease executed before the Act of 1883, may be put in force upon the presentation of a petition under that act (o). A condition for actual occupation by the tenant may be put in operation if trustees in bankruptcy take possession and assign to a purchaser (jw) and so may the ordinary proviso for re-entry in case of bankruptcy notwithstanding any such assignment ; but if the proviso be merely for re-entry in case of assignment without licence, and do not extend to bank- ruptcy, the trustees may disregard it, and assign without any licence from the landlord (9'). Ejectment on proviso for re-entry ; no relief. — The proviso for re-entry in case of bankruptcy may be put in force by peaceable entry or by action of ejectment, and this is one of the cases in which the notice ordinarily required by sect. 14 of the Conveyancing Act (r) is expressly dispensed with by that section (s). But there is no obligation upon the land- lord to announce either to the bankrupt or his trustees whether he intends to take advantage of the proviso or not. If, however, after the act of bankruptcy or adjudication or other act to which the proviso applies, he accept or distrain for rent with knowledge of such act, he will have waived the forfeiture (f) and the trustees will have become his tenants, they, however, on their part being at liberty to disclaim the lease Avithin the time and under the restrictions limited by sect. 55 of the Act of 1883. (7«) 2 T. R. 133. The lease was {p) Doe d. Lockwood v. Clarke, 8 an agricultural one. East. (») Hyde v. Warden, L. R., 3 Ex. {q) Doe v. Bevan, 3 M. & S. 353, D. 72, and see ante, 122. and post, p. 276. (o) Gould, Ex parte. Walker, In re, (?•) Post, p. 330. L. R., 13 Q. B. D. 454 ; 51 L. T. 3G8; (s) See Gould, Ex parte, L. R., 13 B. R. 168. Q. B. D. 454. epost, Ch. VIII. Sect. 5. 441 *276 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cii. VII. S. 11. Effect of proviso for re-entry on building materials. — It has been held that in a building agreement a stipulation for for- feiture of building materials in event of the bankruptcy of the builder is void as contrary to the policy of the law of bankruptcy, and that such materials pass to the trustees not- withstanding the stipulation (h). Tenant-right. — It has not been expressly decided whether a " tenant-right " to allowances for seed and labour, &c., under a custom of the country passes to trustees in bank- ruptcy upon a proviso for re-entry in case of bankruptcy. The landlord is entitled to emblements in such a case (a:) and in Silcock v. Farmer (?/) it was held by the Court of Appeal that a stipulation to pay for hay and straw grown in the last year of the term at the expiration of the term applied only to an expiration by effluxion of time, and not to a deter- mination by re-entry for forfeiture. This decision, [*276] which is at variance in principle with * some old authorities (s) would it is conceived have the effect of preventing a tenant-right under a custom from passing to the trustees, but a right to allowances under the Agricultural Holdings Act would seem to be given them by sect. 61 of that act. Fixtures. — Removable fixtures (a) are removable during the term only or during such period after the expiration of it in which the tenant continues in lawful possession. Therefore after re-entry for forfeiture by bankruptcy the trustees have no right to enter and remove the fixtures (i), unless indeed the lease contain a stipulation for their removal by the bankrupt, in which case the trustees may enter and remove within a reasonable time after the re-entry by the (h) Ex parte Jay, Re Harrison, L. in 1817 that a right to way-going R., 14 Ch. I). 19; 42 L. T. GOO; 28 crops under a lease tlcterniined hy W. R. 449. tlie Lord Clianccllor under tlie re- (x) See Davis v. Eyton, 7 Ring. pealed 49 (ieo. .'?, c. 121, s. 10, passed 154, and Ch. XX., Sect. .3, (<•). to assignees in bankruptcy. (//) 40 L. T. 404; C. A., jmr Lord (a) See as to this, ])ost, Ch. XVI. Coleridge, C. J., and Brett and Ilolker, Sect. 8. L. J. J. (6) See Pugh v. Arton, L. R., 8 Eq. («) See Ex parte Maundrell, Re 026. Drake, 1 Buck, 85, in which was held 442 Cn. VII. S. 11.] BANKRUPTCY OF LESSEE. *276 landlord (f) or at any rate recover them from the landlord hy action (c?). (b) Vesting of Lease in Trustees in Bankruptcy. Time of vesting. — If the lease contain no proviso of re- entry in case of bankruptcy, or if it contain one, and the landlord does not re-enter, the lease, subject to the right of disclaimer which will be considered presently, vests in the oflicial receiver on the lessee being adjudged bankrupt, and in the bankrupt's trustees as from time of their appoint- ment (e). The bankrupt's option to claim a lease passes to his trustees (/) and so does his contract for a lease. Assignment by trustees. — Trustees in bankruptcy may assign the lease to a purchaser without any licence from the landlord, notwithstanding that it contain a covenant against assignment (^) ^ whether such covenant be with the lessee and his executors merely (A) or with the lessee his executors and assigns (j). Personal liability. — They may also assign to a pauper for the mere purpose of getting rid of their liability (^) upon the covenants in the lease, which liability is personal, with a right to be indemnified out of the assets (?). Tenant-right. — Set-off. — Trustees can claim against the landlord at the expiration of their own tenancy by a notice to quit all that the bankrupt tenant could have claimed against him, and the landlord cannot set off against a claim by trus- tees for allowances by custom a claim of his own for rent due from the tenant before the bankruptcy (>n). (c) Stansfield r. Mayor of Ports- (1-) Hopkinson v. Lovoring, 11 Q. mouth, i C. B., N. S. 120. B. D. (592. (d) Gould, Ex parte, Walker, In re, (/) Titterton v. Cooper, L. R., 9 Q. supra, note (o). B. D. 473; 51 L. J., Q. B. 472; 46 (e) Bankruptcy Act, 1883, s. 54. L. T. 670; -30 W. R. 866; Onslow v. If) See Buokland v. Papillon, L. Corrie, 2 Mad. 330. R.,2Cli. 67. (?n) AUoway i-. Steere, L. R., 10 ((f) Doe V. Bevan, 3 M. & S. 353. Q. B. D. 22 ; 52 L. J., Q. B. 38 ; 47 (h) Doe V. Smith, 5 Taunt. 795. L. T. 333; 31 W. R. 290. (i) Doe V. Bevan, ubi supra. 1 It was held in United States that a lease non-assignable without consent was cancelled by bankruptcy. In re O'Dowd, 8 Nat. Bankr. Reg. 451 ; In re Breck, 12 N. B. R. 215. 443 *2T7 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11. [*277] * Determination of trustees' tenancy. — The tenancy of tlie trustees will be determinable in the same man- ner as that of the bankrupt was, i.e., by expiration of a lease, or by notice to quit in the case of a tenancy from year to year, given by either the trustees or the landlord. In a large number of cases, however, it is to be expected that the trustees will resort to the peculiar provisions of the Bank- ruptcy Act, and determine the tenancy by "disclaimer" (w). Surety not discharged. — A surety for a lessee will not be discharged by his trustee taking to the lease (o). User of hay and straw. — It was provided by 56 Geo. 3, c. 50 (j9), s. 11, that " no assignee of any bankrupt " should dis- pose of any hay, straw, grass or grasses, turnips or other roots or any other produce " of a farm, or any manure, com- post, ashes, seaweed or other dressings " intended for the farm in any other way than the bankrupt ought to have dis- posed of the same, if no commission of bankruptcy had issued. It was held by the Court of Appeal in Lybbe v. Hart (pp^, that this act applied to a trustee in bankruptcy under the Act of 1869 ; and it would seem also to apply to a bankrujjtcy under the Act of 1883, so that a trustee, not- withstanding disclaimer, is not entitled to sell hay, &c., which is subject to a covenant for consumption on the farm. (c) Rescission of Lease. Rescission of lease. — Sect. 55, sub-sect. 5, of the Bank- ruptcy Act, 1883, is as follows : — " The Court may, on the application of any person who is as against the trustee entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the con- tract or otherwise, as to the Court may seem equitable, and (n) Sco sub-s. (d), infra. (/>/-) L. R. 29 Ch. D. 8 ; 54 L. J. (o) Sec Hardinji v. VrwcQ, L. K., Ch. 8(30; 52 L. T. G:}4. S. 149 of the Q. B. I). 2. A., Q. B. D. 515; Act of 188:1 is siiiiihir to s. 119 of the 47 L. T. 100; .".1 W. K. 42. Act of 18()9 in i)rovi(liiiK for tlic con- {p) See this Act at length, jwst, struction of nets milking luontion of Appendix. a " commission in l);uiknii)tcy." 444 Ch. VII. S. 11.] BANKRUPTCY OF LESSEE. *277 any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy." A lease would seem to be a " contract " within the mean- ing of this sub-section. (d) Disclaimer of Lease?- By the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), all pre-existing bankruptcy acts were repealed. Many of the 1 The Ia-V7 as to disclaimer by assignees in bankruptcy in the United States. — Tlie decisions uiuKt the former United States Bankruptcy Acts following those under the earlier English acts (prior to tlie English act of 1809 and the present English act of 188:]) held that disclaimer was not necessary to relieve an assignee from liability for rent under a lease. An assignee was held not liable for rent accruing subsequently to the bankruptcy, unless by some positive act he had accepted the lease, and lie was allowed a reasonable time in which to make his election. Ex parte Houghton, 1 Low. 554, 556 (and see whole opinion of Lowell, J.) ; Hoyt v. Stoddard, 2 Allen (Mass.) 442 ; Re Washburn, 11 N. B. K. <)6 ; In re Ives, 18 Id. 28; In re Lucius Hart Man. Co., 17 Id. 459; In re Merrifield, o Id. 25; In re Ten Eyck, 7 Id. 26; In re Wheeler, 18 Id. 385; Matter of Fowler, 8 Ben. 421 ; Matter of McGrath, 5 Id. 183, Mere temporary occupancy (as for storage or removal of goods, «5;c.) was not necessarily an acceptance of the lease. If unreasonably continued, &c., of course it would be. The assignee was held liable in a reasonable sum for such temporary use, whether by himself or by the marshal or otlier officers of the court, to be reimbursed, if beneficial to the estate. In re Walton, 1 N. B. R. 557 ; Matter of Fowler, 8 Ben. 421 ; In re Hamburger & Frankel, 12 N. B. . R.277 ; Matter of McGrath, 5 Ben. 183 & 5 N. B. K. 254 ; In re Lucius Hart Man. Co., 17 Id. 459 ; In re Merrifield, 3 Id. 25 ; In re Wlieeler, 18 Id. 385. The assignee became personally liable, if Iw entry and occupation or other equivalent act he accepted the lease. In re Laurie, 4 N. B. II. 7 ; In re Rose, 3 Id. 03 ; Ex parte Faxon, 1 Low. 404; Buckner v. Jewell, 14 N. B. R. 280 ; In re Commercial Bulletin Co., 2 Woods, 220 ; In re Webb, N. B. R. 302, to be reimbursed, of course, out of the funds if the occupation was jiistifiable under the condition of the estate. The amount paid for temporary use and occupation might, 7?e Merrifield, .3 N. B. R. 25, or might not. Re Lucius Hart Man. Co., 17 Id. 459, be at the lease rate ; but if assignee accepted the term, he took it subject to all the accruing rent, and not merely from commencement of his occupancy. Ex parte Faxon, 1 Low. 404. " If assignee found that lease was not a beneficial one and desired to occupy for a time, but not to take the lease with all its burdens, it was his duty to make some definite arrangement with the landlord " (per Bradley, C. J., in Re Commercial Bulletin Co., 2 Woods, 220), and this, in fact, was usually done in such cases. The time allowed for making a decision varied according to circumstances. In case the rental was large the election should be speedy. In re Laurie, 4 N. B. R. 7 445 *278 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11. earlier acts (^) contained certain special provisions in refer- ence to the case of a bankrupt tenant, and the Act of 1869 contained special provisions for the same case, the [*278] * material difference between the former acts and the Act of 1869 being, that, under the former acts, a lease involving obligations which might exceed in value the benefits to be derived from it did not vest in the bankrupt's assignees until they did some act manifesting their accept- ance, whereas, under the Act of 1869, all leases whatever, together with the rest of the bankrupt's property, vested in the trustees until they did some act manifesting their dis- (7) See, for instance, 49 Geo. 3, c. & 13 Vict. c. 106, s. 145; 24 & 25 121, s. 10; 6 Geo. 4, c. 10, s. 75; 12 Vict. c. 134, s. 131. If assignee occupied under a special agreement independent of the lease, it did not amount to an acceptance. In re Ten Eyck, 7 N. B. R. 26 ; In re Secor, 18 P'ed. Rep. 319. In states vvliere distress for rent existed, the landlord's lien upon the goods entitled him to payment in full, both for rent in arrears and for that subse- quently accruing ; Longstreth i\ Pennock, 9 Phila. (U. S. C. C. E. D. Pa.) 394 ; in re Conmiercial Bulletin Co., 2 NVooils, 220 ; In re Bowne, 12 N. B. R. 529. The landlord's claim for subsequentlj' accruing rent was not a provable claim against the estate, but a personal claim against the assignee, E.t parte Houghton, 1 Low. 554; In re Commercial Bulletin Co., 2 Woods, 220 (;jer Bradley, C. J.) ; Buckner v. Jewell, 14 N. B. R. 286, rent to accrue not being held to be a contingent debt. Bosler v. Kuhn, 8 \V. & S. (Pa.) 183; Savory r. Stocking, 4 Cush. (Mass.) 607. Rent in arrears at the date of the bankruptcy was provable, Ex parte Houghton, 1 Low. 454 ; Matter of Croney, 8 Ben. 64, and by sec. 5071 of the U. S. Rev. Sts., was apportionable at the date of the bankruptcy, as if the same grew due from day to day. The bankrupt himself renuiined liable for the after-accruing rent, and was not discharged therefrom by discharge in insolvency (Lowell, J., in Ex parte Houghton, 1 Low. 554, 556 ; Hendricks v. .ludah, 2 Caines, 25), and the dis- charge relieved him only from liability for tiie arrears. Treadwell v. Marden, 18 N. B. R. 353. A sale by the assignee to the lessor extinguished the term, merging it in the reversion. Wliite /•. Gritting, IS N. B. 1{. '^<.)'^. Adoption in Massachusetts of English bankruptcy provisions. — Provision.s somewhat similar to those of the later Englisli Bankruptcy Acts liave been adopted in the insolvency laws of Massachusetts. It is provided by Pub. Sts. ch. 157, sec. 26 (Sts. 1879, ch. 245, sec. 1) tliat the assignee at any time may disclaim the lease, and must, upon request in writing of either lessor or debtor, within twenty days thereafter, by written instrument filed of record, elect eitlier to accept or disclaim. Tlie debtor, if he obtains his disciharge in insolvency, is discharged also from all lial)ilily under the ]ea.«e, and that whether assignee disclaim or not. If lessor or his rei)repentalives are denmilied, they may prove a claim therefor. 446 Cii. VII. S. 11.] BANKUUrTCY OF LESSEE. *278 claimer (r). The Bankruptcy Act, 1883 (40 & 47 Vict. c. 52), which repeals and re-enacts with material amendments the Acts of 1869, follows the same principle in respect to . leases, and brings it out more fully by limiting a time within Avhich a disclaimer is allowed to be operative. The many other amendments effected by the Act of 1883 are chiefly directed to safeguarding, mainly through the discretionary power of the Court of Bankruptcy, the interests of persons deriving title from the lessee. The subject-matter dealt with is an extremely complicated one, and the imperfect phrase- ology of the Act of 1869 had been supplemented by very numerous judicial decisions, occasionally almost legislative in character. Effect of s. 23 of Act of 1869. — Shortly put, the enactments of sects. 23 and 24 of the Act of 1869 were that the trustee in bankruptcy might, by writing under his hand, disclaim an onerous lease, and that upon the execution of such disclaimer, the lease should be deemed to have been surrendered on the date of the order of adjudication ; that any person interested in a disclaimed lease might apply to the Bankruptcy Court, which might order possession of the lease to be delivered up to him, or make such other order as to the possession as might be just ; that any person injured by the operation of the enactment should be deemed and might prove as a cred- itor of the bankrupt to the estate of the injury ; and (sect. 24) that the trustee should not be entitled to disclaim where for not less than twenty-eight days he had failed upon appli- cation by any interested to notify whether he disclaimed or not. A bankruptcy rule of doubtful validity (.s) (Rule 28 of 1871) prescribed further that a trustee might not disclaim without leave of the court. Decisions on s. 23 of Act of 1869. — The main decisions upon these sections amounted in effect to this : — that disclaimer of a lease did not put an end to a sub-lease (t) : that it did not prevent the lessor horn enforcing against a sub-lessee (r) See Wilson v. Wallani, L. M., (.s) See Reed v. Harvey, L. R., 5 5 Ex. 1). 155; 49 L. .1., Ex. 4;]7 ; 42 Q. B. D. 184. L. T. 375; 28 W. R. 507. (/) Smalley v. Hardinge, L. R., 7 Q. B. I). 524 ; 50 L, J., Q. B. 305. 44" *279 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Cn. VII. S. 11. the remedies of distress and re-entry derived from the lease (?<) : that if the bankrupt were assignee, the lessee remained liable on the covenants (a-) : that all rights of the lessee under the lease, such as to remove fixtures, be- [*279] came lost to the trustee (y/), and that the trustee, *if neglecting or unable to disclaim, was personally lia- ble on the covenants as from the date of his appointment (2). Act of 1883, s. 55. — The 55th section of the Act of 1883 to a great extent follows the principle of the above decisions, but also materially amends the statute law of the subject. This effect of this section, and the rule of court there- under, which are printed in full in the Appendix, is as fol- lows : — Disclaimer by leave. — Where a lease is onerous, or a con- tract for a lease is unprofitable, the trustee may, with leave of the court having jurisdiction in bankruptcy (or without such leave, if the bankrupt has not assigned, sub-let or mort- gaged the lease, and if the rent and value be less than 20Z., or if the estate is, as being not more than 300?. in value, being administered summarily, or if " the trustee serves the lessor with notice of his intention to disclaim, and the lessor does not within seven days after the receipt of such notice give notice to the trustee requiring the matter to be brouglit before the court " («)), by writing signed by him disclaim such lease or contract for lease. Contract for lease. — An oral lease seems to be clearly within the sub-section under the words " unsaleable prop- erty," and also a contract for a lease under the words " un- profital)le contract" (6). Effect of disclaimer without leave. — A disclaimer without leave, if leave be required, is void (c) : but if no leave was required, the court has no power over the trustee in the mat- ter, either to review his decision, or to order him to pay rent (u) Ex parte 'WaUon, Be Levy, L. {z) Titterton v. Cooper, supra (/). R. 17 Cli. D. 740; 50 L. J., Ch. 657 («) Rule 232, ;)o.'i^ Appendix A. 4uL. T. 1; 30 W. R. 305. (6) See Maughan, In re, L. R., 14 (r) Hill V. East and West India Q. B. D. 050; 2 Morrell, 25. Dock Co., L. R., 9 App. Ca8. 448. {<■) Rule 232, post, Appendix A. (y) Ex parte Glegg, lie Latiiain, L. R., V.) Ch. I). 7. 448 Cii. VII. S. 11.] liANKUUPTCY OF LESSEE. *280 for use and occupation from the time that the j)i"6uiises vested in him ((/)• Limit of time for disclaimer. — The disclaimer must he made in ordinary cases within three months after the first appointment of a trustee ; but it is provided that " where the property shall not have come to the knowledge of the trustee within one month after such appointmeJit, he may disclaim at any time within two months after he became aware thereof ; " and this time may be extended by the court either before or after the expiration thereof upon such terms, if any, as the court may think fit to impose, under sect. 105, sub-sect. 4 of the Act (e). Restriction on disclaimer. — It is further provided that the trustee shall not be entitled to disclaim in any case where he has been applied to in writing by any person interested to decide whether he will disclaim or not, and he has for twenty-eight days after such application, or such extended period as the court may allow, declined or neglected to give notice whether he disclaims or not. For this provision to operate, it must be proved that the application was actually delivered: mere proof of * posting it will [*280] not be enough (/). Leave for extension ought to be applied for within twenty-eight days (,^) ; but the exten- sion may be granted afterwards (A), though special circum- stances should be shown (^). In one case, vdiere the trustee did not signify his intention as required, leave to disclaim ■was given only on condition of payment of a month's rent to the landlord, such rent, together with the landlord's costs, to be paid by the trustee personally (A-). Leave of the court. — Sub-s. 3. — By Sub-sect. 3, the court may, before or on granting leave to disclaim, require such (d) Zcrfass, Ex parte, Sandwell, In (fj) See Ex parte Levering, Re re, L. R., 14 Q. B. D. 960; 33 W. R. Jones, L. R., 9 Ch. 586; 43 L. J., 523; 2 Morrell, 95. Bank. 94. (e) Foreman, Er parte. Price, Tn re, (h) Banner v. Johnson, L. R., 5 L. R., 13 Q. B. D. 466 ; 33 W. R. 139 ; H. L. 157 ; 40 L. J., Ch. 730. 1 Morrell, 153. ()") JE'.rpar^e Harris, 7ie Richardson, (/) Reed 7'. Harvey, L. R., 5 Q. B. L. R., 16 Ch. D. 613 ; 44 L. T. 282. D. 184; 49 L. J., Q. B. 295; 42 L. T. (k) Page, In re, 1 Morrell, 2871. 511; 28 W. R. 423. 449 *280 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11. notices to be given to persons interested and impose such conditions of granting leave, and make such orders with regard to fixtures, tenant's improvements and other matters arising out of the tenancy as the court thinks just. Leave has been given to disclaim an expired lease (I). If the trustee has continued to occupy the premises with a view to the benefit of the estate, or if his occupation has in fact produced a benefit, in either case there will be a reason for awarding compensation to the landlord (on^. Fixtures and tenant's improvements. — It had been held, under sect. 23 of the Act of 1869, that by disclaimer the trustee lost all right to remove fixtures (w), even by virtue of an express stipulation (o), so that tlie landlord was entitled as against the trustee to fixtures severed after bankruptcy, whether severed after (p) or before {q) disclaimer; and a similar rule was held to be applicable to rights in connection with acts of husbandry derived from an agricultural lease (r). Under the above sub-section 3 of sect. 55 of the Act of 1883, the court appears to have full discretionary power to order either fixtures or compensation to be given by an)- party before it to any other (s). By sect. 61 of the Agricultural Holdings Act, 1883, a trustee in bankruptcy is included in the term tenant, and appears to have a statutory claim to compensation for improvements within the meaning of that act. As to user of hay and straw where there is a covenant to consume on the premises, see ante, p. 277. Effect of disclaimer. — Sub-s. 2. — Sub-sect. 2 provides that disclaimer shall put an end to the lease as between the lessor (0 Er parte Paterson, 7?f Throck- 22; 39 L. T. 458; 27 W. P. 255 morton, L. P., 11 Ch. D. 008; Ex (C. A.). parte Dyke, lie Morrish, L. P., 22 (o) Ex parte Glegg, lie Latham, Ch. D. 410; 52 L. J., Ch. 570; 48 L. P., 10 Ch. D. 7. L. T. 303; 31 W. P. 278 (C. A.). (;0 Ex parte Stephens, L. P., 7 (m) See Ex parte Arnal, Tie Wilton, Ch. D. 127. L. P., 24 Ch. D. 20 ; 40 L. T. 221 ; He (7) Er parte Prook, supra (n). Zappert, 1 Morrell, 72 ; lie Brooke, (r) Ex parte Dyke, He Morrish, lb. 82. L. P., 22 Ch. D. 410; .32 L. J., Cli. (n) Ex parte. Brook, fie Poherts, 570; 48 L. T. 303; 31 W. P. 278, L. R., 10 Ch. D. 100; 48 L. J., Bank. (.s) See Moser, In re, 1 Morrell, 244. 450 Cii. VII. S.ll.] BAN KIlUJ'TCy OF LESSEE. *281 and the bankrupt or liis trnstee, })ut as between * the lessor and the bankrupt or liis trustee only, in [*281] the following terms : — Effect of disclaimer. — " The disclaimer shall operate to de- termine, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in re- spect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person." By disclaimer, therefore, the lease is lost to the bankrupt and his estate for ever, and the rights of the landlord upon the lease against the bankrupt and his estate are also lost, though, as we shall see presently, the landlord has certain rights of proof and distress reserved to him. Personal liability of trustee. — The lease, with the other property of the bankruptcy, vests in the trustee at the date of his appointment, so that disclaimer will save him wholly from all personal liability whatever. Should he not disclaim, his personal liability is undoubted (t'). Rights of mortgagee, assignee, &c., "wrhere assignee bankrupt. — The " other persons " whose rights and liabilities are pre- served by this sub-section are assignees, mortgagees (?/), sul> lessees (a;), lessees, where it is the assignee who is bank- rupt (7/), sureties for rent (2), and all persons whatever whose rights or liabilities may be affected by the disclaimer. Especially should it be borne in mind that if it be an assignee who is bankrupt, the lessee is, and has always been, liable on his covenants to the lessor, notwitlistanding assign- ment (a). (0 See Titterton v. Cooper, L. R., Co. v. Hill, L. R., App. Cas. 448, and Q. B. 1)., and ante, p. 27G. . ante, 278. (h) See Be Wilson, L. R., 1.3 Eq. (s) See Harding v. Preece, L. R., 186. 9 Q. B. D. 281 ; 51 L. J., Q. B. 515. (x) See Smalley r. Ilardinge, L. R., (a) Barnard v. Godschall, Cro. Jac. 7 Q. B. D. 524 ; 50 L. J., Q. B. 368. 309, and ante, 260. By the Bank- (^) See East and West Iiidin Dock ruptcy Act, however, the lessee loses 451 *282 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11. Vesting order. — Sub-s. 6. — It is enacted by sub-sect. 6 that the court may, on application by any person either chiiming- any interest in any disclaimed property or [being] under any liability not discharged by the act in respect of any dis- claimed property, make an order for the vesting the property in any person (J) entitled thereto : but this enactment is subject to the following restrictive proviso : — Restriction upon vesting order. — " Provided always, that where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the bankrupt, w^hether as under-lessee or as mortgagee by demise, except upon the terms of making such pej'son subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect [*282] of the property at the date when * the bankruptcy petition was filed, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the pi'operty, and if there shall be no person claiming under the bankrupt who is willing to accept an order upon such terms, the court shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the bankrupt to perform the lessee's covenants in such lease, freed and discharged from all estates, incumbrances and in- terests created therein by the bankrupt." A mortgagee by demise, therefore, by taking a vesting order will incur the very liability — that of the covenants in the lease — which the substitution of a mortgage by demise for a mortgage by assignment was intended to free him from. Proof. — Sub-8. 7. — Section 55 closes with a provision that any person injured by the disclaimer may prove his injury as a debt. the benefit of the covenant of in- (l>) Quaere, ;)fr Cave, J., in Parker, demnity wliich the as.signee would In re, Turquand, Ex parte, 1 Morrell, give liim, and tlierefore would seeui 27r), whether these words apply to the to have a ri{;ht of proof against the landlord, bankrupt's estate. 452 Cii.VII. S. 11.] BANKEUrTCY OF LESSEE. *283 (e) Distress for Rent} The early bankruptcy acts left the landlord's common law- remedy by distress whole and intact, and goods in the cus- tody of a messenger in bankruptcy were early held (c) not to be in the custody of the law so as to be exempt from dis- tress under that head of exemptions (cl). A mere limitation of the distress to one year's rent, first imposed in 1820 by 6 Geo. 4, c. 16, s. 74, and repeated in 1849 by 12 & 13 Vict, c. 106, s. 129, has been continued by the Acts of 1869 and 1883 in terms which first affirm and afterwards limit the common law. The 42nd section of the Act of 1883, repeating exactly sect. 34 of the Act of 1869, is as follows : — Distress for one year's rent. — " The landlord or other per- son to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bank- ruptcy, distrain upon the goods or effects of the bank- rupt for the rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy, it shall be available only for one year's rent accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available." A " landlord or other person." — The WOrds " landlord or other person " apply to a person who is made landlord by an attornment clause in a mortgage deed (e), unless * the rent be a sham rent agreed on for the purpose [*283] of evading the law of bankruptcy (/), but not to a (c) Plummer, ^,r parte, 1 Atk. 103, Stockton Iron Furnace Co., In re, ;)er Lord Harchvicke. L. R., 10 Ch. D. 33.5; Voiscy, Ex (d) See post, Ch. XI. parte. Knight, In re, L. R., 21 Ch. D. (e) Jackson, Ex parte, Bowes, In re, 442 ; 52 L? J., Ch. 121 ; 47 L. T. 362; L. R., 14 Ch. D. 725. See also Wil- 31 W. R. 19. liams, Ex parte, L. R., 7 Ch. D. 138; (/) ^eeYolsey, Ex parte, uhi supra. ^ See ante, (d), note upon "The law as to disclaimer in the United States." 453 *283 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 11. gas company in respect of gas rent (^), unless it have special statutory powers, e.g. to recover the gas rent "by the same process as landlords are by law empowered to recover rent in arrear " (Zf), Whether distress barred. — There appears to be some au- thority for saying that a landlord, if he choose to prove for the year's rent for which he might have distrained, loses the right of distress for such rent («) ; and it seems, at any rate, that he cannot prove and distrain for the same amount of rent. Right of distress paramount. — Distress is not such a " legal process" as can be restrained by the court under sect. 10, sub-sect. 2, of the Bankruptcy Act, 1883 (^), and it can be fully proceeded with, notwithstanding that a receiver is in possession of the bankrupt's property (J). No right to follow goods. — If the goods be sold by the trustees and removed from the premises before the landlord has distrained upon them, he has no right to follow them for the purpose of distress, but loses his preferential right altogether (^w). Benefit of distress how lost. — If the goods distrained be left unsold, and found in the order and disposition of the bankrupt at the commencement of the bankruptcy, they will pass to the trustee by the order and disposition clause of the Bankruptcy Act (w). Third party not protected. — The limitation, that only one year's rent may be distraiiied for, protects the goods of the bankrupt only, and not the goods of a third jjarty which may (//) Hill, Ex parte, Roberts, In re, was said by Lord Batliurst that that L. K., 6 Ch. D. 63; 40 L. J., Bank. was the ground of decision. On prin. IIG; 37 L. T., 40 ; 25 W. R. 784. ciple, it is submitted that this ques- (/i) Birmingham Gaslight Co., Ex tion ought to be determined in favour parte, L. R., 11 Eq. 015; 40 L. J. of the landlord. Bank. 52. {k) ii'.r /jaWc Birmingham Gasliglit (0 Grove, Ex parte, 1 Atk. \Ob,per Co., L. R., II Eq. 015 ; 40 L. J. Bank. Lord Hardwicke, in 1739. See also 52. Robson, p. 303, where it is said that (/) Ex jiarte Till, In re Mayhcw, the landlord " must make! his election L. R., 10 Va\. 97. to waive either his proof or distress." (m) Bradyll v. Bale, 1 Bro. C. C. But in Ex parte Grove, tlie rights of 427. a vendee came in question, and in Ex (n) Ex parte Shuttloworth, lie parte Devine, Cooke, B. L. 201, it Diane, 1 I). & C. 223. 454 Ch.VII. S. 11.] BANKRUPTCY OF LESSEE. *284 be on the premises of the bankrupt. This follows from the very words of the section, which limit only "such distress," i.e. distress on the goods of the bankrupt, and fi-om the case in which it was held that property whicli the bankrupt ten- ant had mortgaged was liable to distress in full (o). Distress for rent due after adjudication. — The landlord's right to distrain for rent accruing due after the order of adjudication is quite unaffected ; for such rent (though pay- able in advance), if the trustee do not disclaim the lease, or if the trustee continue in possession, the landlord may distrain in full (^), otherwise, as was observed by Bacon, C. J., a trustee in bankruptcy * might make [*284] use of a man's property without paying any rent for it, and snap his fingers at him. Payments to avoid distress valid. — Payment by a tenant, after an act of bankruptcy, of a year's rent to avoid a distress is valid (r), and a person who paid out a distress has been held entitled to be recouped in full out of the bankrupt's estate before the creditors received any dividend (s). (f) Proof for Rent, ^c.^ Proof for rent for broken period. — B}^ Rule 19 of the second schedule of the Bankruptcy Act, 1883, re-enacting sect. 35 of the Act of 1869, " when any rent falls due at stated periods, and the receiving order is made at any time other than one of those periods, the person entitled to the rent may prove for a proportionate part thereof up to the date of the order as if the rent grew due from day to da3^" Proof for rent in addition to distress. — We have already seen that a landlord may distrain for a year's rent only, but may prove under the bankruptcy for the surplus due for which the distress may not have been available (f).> and dis- (o) Brocklehurst v. Lawe, 7 E. & (r) Stevenson v. Wood, 5 Esp. 200. B. 176 ; 26 L. J., Q. B. 107. (s) Ex parte Kennard, 21 L. T. 684. (7) Hale, J^xpaz-^e, A'c Binns, L. R., The payment was at the request of 1 Ch. D. 285; 45 L. J., Bank. 21 ; 33 certain creditors. L. T. 706 ; 24 W. R. 300. (0 Ante, 282. ^ See ante, (c?), note upon " The law as to disclaimer in the United States." 455 *285 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 12. cussed the question how far the right of distress is barred by proof (w). Proof for injury by disclaimer. — It is provided by Sub-Sect. 7 of sect. 55 of the Bankruptcy Act, 1883, that : — "All}- person injured by the operation of a disclaimer under tliis section shall be deemed to be a creditor of the bankrupt to the extent of the injury, and may accordingly prove the same as a debt against the bankruptcy." This sub-section re-enacts part of sect. 23 of the Act of 1869. A lessor suffering by the disclaimer of a lease of part- nership premises, may, as was held under that section, prove against the separate estate of each partner for the injury (a;), and, as was also held, if disclaimed premises let for a term, can only be re-let at a reduced rent, the landlord is entitled to prove for the difference between the present worth of the agreed rent for the term, or for the period at which it may be by option determinable Q/'), and the present worth of the letting value for the same period (s). [*285] * Sect. 1 2. — Marriage.'^ (a) Of Female Lessor (a). The law of this subject has been revolutionised by the Married Women's Property Act, the effect of which has been already given, and it is only necessary here shortly to state the effect of the law before that act. Interest of husband in wife's freeholds. — At common law a husband took a freehold interest during the coverture in such of his wife's freeholds of inheritance as were not put into settlement before the marriage, and he might dispose of such freehold interest by deed without her concurrence (6). (h) Aritr, 28-']. (r) Ex parte Llynvi Coal and Iron (r) A'.r parte Corbctt, Re Shand, L. Co., 7iV Hide, L. R., 7 Cli. 28. R., 14 Cli. I). 122. (a) And see ante, p. 68. (y) Ex parte IMake, Ee McEwan, (h) Robertson v. Norris, 11 Q. B. L. R., 11 Ch. D. 572. 910. ^ See ante, chaps. 1 & 2, notes. 456 Ch. VII. S. 12.] MARRIAGE (OF FEMALE LESSOR). *286 Tenancy by the curtesy. — Tenancy by the curtesy, how- ever, appears to have survived the Married Women's Prop- erty Act, and if the husband have issue by his wife born alive, who might by possibility have inherited, he will still become tenant by the curtesy for his life of her freeholds of inheritance (including estates tail) (c). But such title is only initiate during her life, and will not merge any term of years to which he may be entitled in his own right (t/). Unless he becomes tenant by the curtesy he cannot distrain or sue for rent of the Avife's freeholds which accrues after her death under a demise made by his wife and himself, or by him on her behalf (e). If, however, the lease was made by him in his own name only, the tenant would be thereby estopped from denying his title to the subsequent rent during the continuance of the tenancy (e). Arrears of rent, &c., before marriage. — Arrears of rent and other debts due to a female lessor before her marriage, and breaches of covenant, trespasses, &c., before then committed, were at common law choses in action^ which could only be sued for by the husband and wife jointly, and not by the husband alone (/) ; nor by the wife alone (^). Leases at will. — At common law if a feme sole made a lease at will, or was lessee at will, and afterwards married, the marriage was no determination of her will, so as to make the lease void ; nor could she herself, without the consent of her husband, determine the lease in either case (A) ; but the Married Women's Property Act would seem to give this right. Where the husband and wife made a lease for years by indenture of the wife's lands, reserving rent, and, the lessee having entered, the husband before any day of payment died ; upon which the wife took a second * husband, and he at the day accepted the rent and [*286] died : it w^as held, that the wife could not avoid the (c) Co. Lit. 29 a— 30 b; Burton, v. Scarrott, and Sharp v. Scarrott, 4 Conip. ss. 348-355. II. & N. 723 ; 28 L. J., Ex. 325. (d) Jones V. Davies, 5 H. & N. 706 ; (/) Milner v. Milnes, 3 T. R. 631 ; 29 L. J., Ex. 378; 31 Id. 116. 1 Chit. PI. 33 (7th ed.). (e) Hill V. Saunders, 2 Ring. 112; (g) Caudell v. Sliaw, 4 T. R. 361. s. c. (in error), 4 B. & C. 529; Howe (/;) Bac. Abr. tit. Baron and Feme (E.). 457 *286 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 12. lease ; for that by her second marriage she had transferred the power of avoiding it to her husband, and his acceptance of the rent had bound her, as her own before such marriage woukl have done ; for he, by the marriage, succeeded into the power and place of his wife, and what she might have done, either as to affirming or avoiding the lease before marriage, the husband might do after the marriage (i). (b) Of Female Lessee. Effect of marriage on the leasehold. — Marriage was a gift in law to the husband of all the wife's chattels real (not put into settlement), — as a term for years in right of his wife ; of which he alone might dispose, or forfeit, or they may be extended for his debts (k'). If he sublet any of them in his own name only, the rent belonged to his execu- tors or administrators, and not to the wife as survivor (Z). He might even dispose of them by deed to take effect on his death to the exclusion of the wife (m). If lands were demised to a man and his wife, and the husband alone made an underlease, he alone might sue a third person for an injury to the reversion (w). If a husband agreed to grant an underlease of the wife's term of years, such agreement was a good disposition in equity of the term, and would bind the wife in case of the husband's death without granting the lease (o). But a husband could not assign his wife's reversionary interest in leaseholds, if that interest was of such a nature that it could not possibly vest in the wife in possession during the coverture (^). (0 Bac. Abr. tit. Leases (C). («) Wallis v. Harrison, 5 M. & W. {k) Bac. Abr. tit. Baron and Feme 142 ; 7 Dowl. 395. (C. 2), (I.). {(,) Stead v. Creagh, 9 Mod. 43; (/) Com. Dig. tit. Baron and Feme Druce v. Dcnison, Vos. 385; Bac. (E. 2) ; Co. Lit. 40 b, 351 a; 1 Roil. Abr. tit. Baron and Feme (C. 2). 34.3, 1. 15; Blaxton v. Heath, I'oph. (/)) Day v. Duberly, 6 H. L, Cas. 145. 388. (m) Ilcrbin v. Chard, Pojjh. 90; Grute V. Locroft, Cro. Eiiz. 287. 458 Cu. VII. S. 13.] DEATH. *286 Sect. 1?>. — Death. (a) Heirs^ or Devisees. Bequest of leaseholds; assent of executors. — By the Wills Act, 1 Vict. c. 20, a man may devise all real and personal estate which he is entitled to, at the time of his death, and the better opinion is that such a devise is not a breach of the covenant not to assign without licence (^q). Where a (y) See the cases considered, post, Ch. XVII., Sect. 2, p. 661. 1 Rents ; vrhen belonging to heirs and devisees. — Rents accruing subsequently to the death of testator or intestate belong to the heirs, Shouse V. Krusor, 24 Mo. App. 279; Haslage v. Krugh, 25 Pa. St. 07; Stinson v. Stinson, 38 Me. 593 ; Crosby v. Loop, 13 111. 625 ; Green v. Massie, Id. 363 ; Foltz V. Prouse, 17 Id. 487 ; Towle v. Swasey, 106 Mass. 100, 107 ; Gibson v. Farley, 16 Mass. 280; Rank r. Hill's Adm'r, 8 Bush. (Ky.) 66; O'Bannon v. Roberts' Heirs, 2 Dana (Ky.) 55; Atciiison's Heirs i'. Lindse}^ 6 B. Mon. (Ky.) 86, 88; Williamson's Adni'x v. Richardson, 6 Mon. (Ky.) 596, 603; or devisees. Combs' l^evisees v. Branch, 4 Dana (Ky.) 547 ; Burnell's Estate, 9 Weekly Notes of Cases (Pa.) 334, and 13 Phila. 387 ; Ball v. First Nat, Bank of Covington, 80 Ky. 501, as owners of the realty, the realty itself vesting immediately in them upon the death of the decedent, Douglass v. Massie, 16 Ohio, 271 ; Gill v. Pinney's Adm'r, 12 Ohio St. 38, 46 {per Scott, C. J.) ; Rubottom v. Morrow, 24 Ind. 202; Lucy v. Lucy, 55 N. H. 9; Lane u. Thompson, 43 Id. 320, 325 {per Sargent, J.), subject to sale for payment of debts. Until such sale the rents belong to them notwithstanding the estate is insolvent, Kimball v. Sumner, 62 Me. 305; Lobdell v. Hayes, 12 Gray (Mass.) 230 ; Overturf v. Dugan, 29 Ohio St. 230 ; Ball v. First Nat. Bank of Covington, 80 Ky. 501; or the lands subject to legacies, Towle v. Swasey, 106 Mass. 100. After such sale the balance of proceeds belongs to them. Gris- wold V. Frink, 22 Ohio St. 79. If, as is frequently the case, the executor collects the rents, he holds them not in his capacity as executor, Newcomb v. Stebbins, 9 Met. (Mass.) 540 ; Towle v. Swasey, 106 Mass. 100, but as trustee or tenant for them, Landis v. Scott, 32 Pa. St. 495; Burns v. Cox, 10 Phila. 8; but not to be accounted for in the probate, surrogates', or orphans' courts, Lucy v. Lucy, 55 N. H. 9; Gregg v. Currier, 36 Id. 200; Terry v. Bale, 1 Dem. (N. Y. Sur.) 452 ; Burnell's Estate, 9 W. N. C. (Pa.) 334, and 13 Phila. 387 ; M'Coy v. Scott, 2 Rawle (Pa.) 222; McClead v. Davis, 83 Ind. 263; Trimble v. Pollock, 77 Id. 576 ; Hendrix v. Hendrix, 65 Id. 329, unless authorized thereto by special statute, and the sureties upon his official bond are not liable therefor. In Massachusetts, by special statute, he is allowed upon mutual consent to include the rents in his probate accounts. Pub. Sts. chap. 144, sec. 5; Stearns v. Stearns, 1 Pick. (Mass.) 157 ; Palmer ;■. Palmer, 13 Gray (Mass.) 326. Lands which are, in equit^^ personalty, belong to the executor. Buck- waiter V. Klein, 2 Am. Law Rcc. 347. Rent of leaseholds (being derived out of personalty) belongs to the execu- tor. Williamson's Adm'x v. Richardson, 6 Mon. (Ky.) 596, 603 {per Bibb, C. J.), and see post, (b), notes. 459 *287 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13. term is specifically bequeathed, it will, notwithstanding, in the first instance vest in the executor by virtue of [*287] his oflice ; and the legatee cannot enter until he * has the assent of the executor to the bequest (r). Indeed, even where a term is bequeathed to an executor for his own use, it does not vest in him as legatee until he as executor assents to it (&•). An executor may before obtaining probate assent to a bequest (f) ; but not an administrator before obtaining letters of administration (ii). The assent of any one of several executors is sufficient (x). The assent of an executor to a bequest is not matter of law, but a question of fact for the jury (y). An assent once given cannot after- wards be retracted (z). Executors should never assent to a bequest until they have very clearly ascertained that there is sufficient property to pay all the testator's debts and liabilities. An executor who has assented unconditionally to a specific bequest of the testator's leaseholds is not entitled, in a Court of Equity, to require an indemnity out of the testator's general estate in respect of his cove- nants contained in the leases (a). Actions for breaches before or after lessor's death. — Where the covenant of a lessee, whether it runs with the land or not, has been broken in the lessor's lifetime, and whilst the lessor continued to be the reversioner, his executors or administrators are the only persons entitled to sue u^wn it : and so, also, with respect to covenants which do not run with the land or with the reversion. The admin- istratrix of the surviving trustee of freehold or leasehold property may sue for arrears of rent which became due in (r) Doe d. Maberley v. Maberley, (.r) 2 Wms. Exors. 948, 1378 (7tli C C. & V. 120; 2 Wms. Exors. 1372 ed.). (7tli ed.). Cv) Mason v. Farnell, 12 M. & W. (s) Young V. Holmes, 1 Stra. 70 Doe (1. Hayes r. Sturi^es, 7 Taunt 217; Sliep. Toucli. 451; 2 Wms Exors. 1.380 (7th ed.). (0 Fenton v. Clegg, Excli. 080 Jolinson V. Warwick, 17 C. B. 516; 674 ; 1 D. & L. 576. {z) Doe d. Ld. Sa3'e and Sele v. Guy, 3 East, 120; Foley v. Barnell, 4 Bro. P. C. 34. ((() Sliadbolt V. Woodfall, 2 Coll. .30; Hickling ,.. Bowyer, 3 Mac. & G. 25 L. .T., C. P. 102. 035, 04(i ; 2 Wnjs. Exors. 1348, 1378 (u) Morgan v. Tliomas, 8 Exch. (7th ed.). 302. 460 Ch. VII. S. 13.] DEATH. *288 his lifetime (^). Where a covenant of the lessee, which runs with the land, has heen broken after the death of the lessor, the riglit of action is vested in the person then legally entitled to the reversion (•. Condon, 08 Pa. St. 75; Copi)els' Estate, 4 Phila. 378. In Cunningham v. Baxlcy, 96 Ind. 367, it was held that a parol sub-lease, given by life tenant during own life, was a chattel, and passed to the executor. - Accrued rents. — Rents accrued prior to the death of testator or intes- tate belong to tlie executor. Ball v. First Kat. Bank of Covington, 80 Ky. 501; Combs' Devisees v. Branch, 4 Dana (Ky.) 547; O'Bannon v. Roberts' Heirs, 2 Id. 55. 462 Ch. VII. S. 13.] DEATH. *288 tor (A) ; and a rent-charge pur autre vie goes to the execu- tors or administrators of the grantee, though they are not mentioned in the grant (Q. Effect of probate. — The right of an executor to the personal estate and effects of his testator (including chattels real and choses in action) is derived from the will, of which the pro- bate is merely evidence (m). He is legally possessed from the time of the testator's death,^ and before obtaining pro- bate (w). Where leaseholds are mortgaged, probate duty is payable in respect thereof only on the value beyond the mortgage (o). Letters of administration. — The validity of letters of admin- istration cannot be disputed on the ground that there is a will, without first getting them recalled by the Court of Pro- bate (jo). The right and power of an administrator is derived wholly from the letters of administration (g). He cannot bind the testator's estate by asserting to any application or disposal thereof, before obtaining letters of administration; which do not relate back (r). An executor de son tort, to whom administration is subsequently granted, may repudiate an agreement made by him, to surrender a term of years vested in the intestate (s). Executor cannot renounce. — If a testator die possessed of a term of years, it will vest in his executor,^ who cannot (k) 1 Wms. Exors. 820 (7th ed.) ; (n) Smith v. Milles, 1 T. R. 480; DoUen v. Batt, 4 C. B., N. S. 760; 27 Roe d. Bendall v. Summerset, 2 W. L. J., C. P. 281. Blac. 692 ; 5 Burr. 2608. (/) 1 Vict. c. 26, s. G; Bearpark v. (o) 81 & 32 Vict. c. 124, ss. 7, 8. Hutchinson, 7 Bing. 178; Reynolds (p) Prosser w. Wagner, 1 C. B., N. V. Wright, 25 Beav. 100; 27 L. J., S. 289; 26 L. J., C. P. 81. Ch. .392 : 2 De Gex, F. & J. 590. ((7) Shep. Touch. 474; 1 Wms. (m) Hensloe's case, 9 Co. R. 38 a; Exors. 404 (7th ed.). 1 Wms. Exors. 293 (7th ed.) ; Pem- (r) Morgan 7;. Thomas, 8 Exch. 302. berton v. Chapman, 7 E. & B. 218; 26 (s) Doe d. Hornby v. Glenn, 1 A. & L. J., Q. B. 120. E. 49. 1 Administrator's title relates back to the decedent's death ; and wliere a lessor reserved option to take bricks at fair market value in payment of rent, but did not exercise the option till death of lessee, it was held then too late, as the title to the bricks had vested in the administrator. AVait's Appeal, 7 Pick. (Mass.) 100. ^ Executors are liable de, bonis propriis, if they occupy. Smiley v. Van Winkle, Cal. 605, 606 (per Murray, C. J.). 463 *289 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13. waive it although it be worth nothing ; for he must renounce the executorship in toto, or not at all (f). If he [*289] assign * it, or assent to a specific bequest of it, he may thereby be guilty of a devastavit to the extent of its real value. Terms of years belonging to a testator or intestate vest in his executor or administrator without any entry (w). In the case of a tenancy from year to year as long as both parties please, if the tenant die. his personal representative has the same interest in the land as he had (a:). Any one of several executors, without the concurrence of the others, has power to assign the whole of the testator's term and interest in all or any of his leasehold property (?/) ; but not after either of them has assented to a bequest of such property to a legatee (2:). Actions by executors. — An action for rent, which became due in the lifetime of the lessor, may be brought by his exec- utor or administrator. So he may sue the lessee for breach of a coA^enant not to fell, stub up, lop or top timber trees, excepted out of the demise, the breach having been com- mitted in the lifetime of the lessor (a). So the executor of a tenant for life may sue for breach of a covenant to repair, committed by the lessee in the lifetime of the testator (6). By 3 & 4 Will. 4, c. 42, s. 2, executors and administrators may bring actions for injuries to the real estate of the de- ceased committed within six months before his death. (0 Hellier v. Casbard, 1 Rid. 20G ; 1 Ecx v. Great Glenn, 5 B. & Ad. 188 ; Lev. 127 ; Rubery v. Stevens, 4 B. & Thompson v. Tlionipson, 9 Price, 464. Ad. 244. (//) Hawkins v. Williams, 10 W. R. (u) Wollaston v. Hakewill, 3 M. & 602, Q. B. G. 297 ; Atkins r. Humphrey, 2 C. B. (z) Cole Ejec. 529, r)30. 654 ; 3 D. & L.612; but see Kearsley (a) Raymond v. Fitch, 2 C, M. & V. Oxiey, 2 II. & C. 800. R. 588. See 1 Wms. Exors. 806 (7th (x) Doe d. Shore v. Porter, 3 T. R. ed.). 13; James v. Dean, 11 Ves. 301; (6) Rickets w. Weaver, 12 M. & W. Mackay v. Mackreth, 4 Doug. 213; 718; Noble v. Cass, 2 Sim. 343. In Enqlnnd they are liable only up to the Icttinrj value except so far as they have assets. In re Bowes, 37 Ch. D. 128, 132 {per North, J.). In the United States an executor is liable to the extent of the assets for the full value of tiie term, but if he waive the term and decline to enter and occupy tlic premises, he is not liable de bonis ]>roj)riis. Walworth, Chan., in Martin v. Black, 9 Paige (N. Y.) Oil, 614. 404 Ch. VII. S. 13.] DEATH. *290 Distress. — As to distresses by executors or administrators, see post (c). Liability of personal representatives. — An executor or ad- ministrator may be charged as such for arrears of rent due from the deceased, so far as he has assets (tZ), but by the operation of 32 & 33 Vict. c. 46, the lessor is not entitled to any priority over other creditors (e). So also is an executor de son tort, and that merely on proof that the term vested in him as such (/). For subsequent rent he may be charged either as executor (or administrator) during the term () ) — that the term did not vest in him by assignment otherwise than as executor or administrator, and that he has not any time since the death of the lessee received or derived, nor could he during any part of that time receive or derive, any proHt from the said demised premises, except sums amounting to the sum excepted, and that the said demised premises liavo not since the death of the lessee yielded any profit whatever, except to the amount excepted ; and that the defendant had not at the commencement of the action, nor has since had, nor has any goods or chattels which were of the lessee at the time of his death in the hands of the defendant as executor (or adminis- trator) as aforesaid to be administered {q). (m) Pitcher v. Tovcy, 4 Mod. 71 ; (7) liillingliurst v. Spearman, 1 Taylor v. Slium, 1 \i. & P. 21 ; Wil.soii Salk. li!)7 ; liucklcy v. Porter, 1 Salk. I'. VVifrK. 10 East,;]]"). 317; Hiihery v. Stevi-ii.s, 4 H. & Ad. (n) Rowley v. Adams, 4 Myl. & Cr. 241 ; Wollastoii v. Hakewill, 3 M. & 534. G. 207 ; llopwood v. Whaley, G C. H, (o) I'ost,2(',0. 744; G D.& L. 342. . (/»; Patten r.Kcid.GL. T. 281, Q.B. 466 Cri. VII. S. 13] DEATH. *291 * Breach of covenant to repair. — But the defence [*291] that the premises are wortli nothing does not seem to be available in an action for non-repair, or for other breaches of covenant running with the land (not being for non-payment of rent) (r). And it vi^ould seem that the ab- sence of assets is equally unavailable as a defence (s). The preponderance of authority seems to be in favour of this rule, though it may work extreme injustice in particular cases (as, for instance, where a house is burnt down) ; and the danger foreseen by Tindal, C. J., in Tremeere v. Mori- son (^), viz., that the landlord would have no redress though the property went on deteriorating, can rarely arise in prac- tice, as almost all leases have a proviso for re-entry in case of breach of covenants. If issue be taken on the value of the premises the ques- tion will be whether they were of any annual value (w), or of any value beyond the sum excepted out of the defence and paid into court or otherwise pleaded to. In estimating such value the jury must calculate according to the actual annual value of the pi-emises, supposing them to be kept in proper repair according to the covenants in the lease, and without deducting any loss occasioned by the insolvency of an under-tenant, or the non-payment of the rent by him (2:). Continuing liability of executors. — An executor or adminis- trator cannot be sued as assignee of the term where the tes- tator or intestate has assicrned it: nor for causes of action Avhich accrue after the executor or administrator has himself assigned it over : but (except so fai- as protected by 22 & 23 Vict. c. 35, s. 27) he will continue liable as executor or ad- ministrator in respect of any other assets, notwithstanding (»•) Tremeere v. Morison, 1 Bing. the liability of the executor of a les- N. C. 89 ; Sleap v. Newman, 12 C. B., see is well summarized in the notes N. S. 116; Hornidge v. Wilson, 11 A. to Dean .Tnd Chapter of Bristol v. & E. G45 ; Tilvey v. Norris, 1 Ld. Ray. Guyse, 1 Wms. Saund. 124 (ed. 1871); 553; but see per Bayley, B., in Reid see, too, Jevens v. Harridge, Id. 1. V. Lord Tenterden, 4 Tyr. 111. (k) Rubery v. Stevens, 4 B. & Ad. (.s) Tremeere r. Morison, 7(/)i ,si(;»-(7 ; 241. Wollaston v. Ilakewill, 8 M. & G. 320, (.r) Hornidge r. Wilson, 11 A. & E. where, however, it is said that the 615; Kubery r. Stevens, sh/xyi ; Reid executor is not liable without entry. v. Ld. Tenderden, 4 Tyr. 111. (/) The law upon the subject of 467 *292 ASSIGNMENT, BANKRUPTCY, DEATH, ETC. [Ch. VII. S. 13. an}' such assignment (?/). The term vests in the executor or administrator as assignee thereof without any entry by him (2). Only profits are assets. — When an executor takes leasehold property nothing is assets but the profits above the rent : as, if the land be worth 101. per annum, and 51. is reserved, in that case nothing is assets but the 51. above the rent (a). The profits of the land may be inadequate to the rent : in a variety of cases they may be easily supposed insuffi- [*292] cient for a given * period, although the lease may on the whole be beneficial ; as, for instance, where rent is claimed for the occupation of premises from Michaelmas to Lady-day, where almost the whole profit is taken in the summer (i) : so the profits for a series of years may be less than the amount of the rent, although the lease for the whole tei'm may be of no small value, — as in the case of a lease of woods, which are fellable only once in eight or nine years, and the felling has been very recent (<'). In these and the like instances, the executor is personally liable only to the extent of the profits ; and for such proportion of the rent as shall exceed the profits, he is chargeable merely in the capacity of executor, or, in other words, as far only as he has assets, provided he pleads the whole matter specially and accurately ((7). The profits of the land are to be ap[)lied by the executor, in the first place, to the discharge of the rent, and if that fund prove insufficient, the residue of the rent is pa3'able out of the general assets, and stands on the same footing with other debts by specialty ; and this whether tlie rent be reserved by lease in' writing or by i>iuol. A lease belonging to an intestate, on whicli anotlier has a lien, is (>/) Ilellior V. Casbard, 1 Lev. 127; (h) 2 AVm.s. K.xors. 1()22 (Gth cd.). I Sid. '2(50 ; Cogliil r. Vreolovo, :) Mod. (r) ll.id. ;525; Wilson v. Wi^fj;, 10 East, 315; (r/) Hiickloy v. Pirk, 1 Salk. .".17; llowst; V. Webster, Vclv. lOo ; 2 Wms. Biiliiisluirst r. Spearman, 1 Salk. 207 ; Exors. 17r)l (7tli ed.). Kubery v. Stevens, 4 li. & Ad. 241; (^) Wollaston V. Ilakewill, P. M. &, II()rnid<,a> r. Wilson, 11 A. & E. 04.'.; (;. 207; Atkins v. Humphreys, 2 C. lloi)\vood r. Wlialoy, (5 C. B. 744; (5 IJ. r,r,4 ■ ."> I). & L. (112 ; but see Kears- 1). & L. :M8; Collins v. Crouch, l:^ Q. ley V. O.ikley, 2 II. & C. 8')(i. 15. D. r,J2; BuUen &, L. PI. 68;5, 684 ((/) IIar(jrave's case, 5 C'o. U. 31 b, (.'!rd ed.). cited 4 13. & Ad. 245. 408 Cn. VII. S. 13.] DEATH. *293 assets in the hands of the administrator, who has power to redeem it as well as to dispose of the legal estate (e). So an equity of redemption in a sum of money charged on real estate is a legal asset because the money is recoverable by the executor virtute ol'licii (/). Insurance. — In Fry w. Fry a lessee was bound to insure. The insurance expired on the 25th March. He died on 27 Ih March, without having paid the premium. The house Avas burnt down on the 2Gtli May, his executors (who did not prove till the 17th June) not having paid the premium. It was held, that they were not personally liable to the resid- uar}^ legatees for neglect in not having kept up the assur- ance (^). Party-walls. — An administrator of a lessor has been held obliofed to contribute as owner towards the rebuildiuQ^ of a party-wall under the old Building Act, though not otherwise owner than as administrator, and thougli he had no assets to meet the expenses (^). Hovr executor may get rid of personal liability. — The hard- ship of the common law upon executors has been somewhat modified by the statute 22 & 23 Vict. c. 35, which enables an executor, having sufficient assets and taking advantage of the act, to rid himself completely of his personal liability under any lease or agreement for a lease. By section 27 of this act, " where an executor or administrator, liable as . such to the rents, covenants or agreements * con- [*293] tained in any lease or agreement for a lease, granted or assigned to the testator or intestate, whose estate is being administered, shall have satisfied all such liabilities under the said lease or agreement for a lease as may have accrued due and been claimed up to the time of the assignment hereafter mentioned, and shall have set apart a sufhcient fund to answer any future claim that may be made in respect of any fixed and ascertained sum covenanted or agreed by the lessee to be laid out on the property demised, or agreed to be de- (e) Vincent v. Sharp, 2 Stark. R. ( him who has the next immediate estate in remainder or (r) Doe d. Courtail v. Thomas, 9 (m) Bac. Abr. tit. Leases (S. 2). B. & C. 288. (x) Shep. Touch. 302. (.s) Co. Lit. 218 b. (//) Id. 304 ; Ive v. Sims, Cro. Eliz. (/) Lh)y(i y. Lanj^fonl, 2 Mod. 17G; 521 ; Hutchins v. Martin, Cro. Eliz. Uao. Abr.' tit. Leases (S. 3). 605. 479 *299 DETERMINATION OF TENANCY. [Ch. VIII. S. 3. reversion, and that there be no intervening estate coming between. 3. That there be a privity of estate between the surrenderor and the surrenderee. 4. That the surren- deree have a higher and greater estate in the thing surren- dered than the surrenderor hath, so that the estate of the surrenderor ma}^ be drowned therein. 5. That he have the estate in his own right, and not in the right of another. 6. That he be sole seised of this estate in remainder or re- version, and not in joint-tenancy (2). 7. That apt, or at all events sufficient, operative words be used (a). Those com- monly employed are "surrender, grant, and yield up," or " assign and surrender." But no particular words are essen- tial (6). Where a deed is not required by 8 «fe 9 Vict. c. 106, s. 3 (f), any instrument in writing duly signed, and expressing an immediate purpose of giving up the estate on the part of the tenant, if accepted by the landlord, will be sufficient () See usual Forms of Surrenders, N. C. 504. post, Ai)pin(li.\ B., Sects. 30-33. (7) Nickclls i'. Atherstone, 10 Q. (c) Ante, 274. B. 044. Id) Farmer v. Bogers, 2 Wils. 2C>; (h) Lypn i-. Reed, 13 M. & W. 285; Smith V. Maplehaek, 1 T. K. 441; Doe d. Miirrell v. Milwanl, 3 M. & Wedflall V. Capes, 1 M. & W. 50; \V. 328; Bessell v. Landsberg, 7 Q. Harrison v. Blackburn, 17 C. B., N. S. B. G38. 079, G80. 480 Ch. Vm. S. 3.] SUIIUENDER (bY OPERATION OF LAW). *299 (b) Surrender hy Act and Operation of La^v. Surrender by acceptance of a new lease. — Surrenders by " act and operation of law,'' ^ or implied surrenders, are ex- cepted in the Statute of Frauds (i), and are not affected by («■) Ante, 274; Sliep. Touch. iJOO; Com. Dig. tit. Surrender (L. 1) ; Perk. c. 9. ^ Surrender (by operation of la^v) results from abandonment with con- sent. Aniory r. Kannoffsky, 117 Mass. 351 (new tenant taken) ; 'J'albot v. Wliipple, 14 Allen (Mass.) 177 (lessor resumed possession) ; Kandall v. Rich, 11 Mass. 494 ; and Matthias v. Pace, 3 Russ. & Geld. (N. S.) 360 (keys given up, premises relet) ; Philip v. McLaughlin, 24 N. B. 532 (delivery to third party at request) ; Elliott r. Aiken, 45 N. H. 30 (delivery and acceptance of key) ; Boehm v. Rich, 13 Daly (N. Y.) 62 ; Vandekar v. Reeves, 40 Hun (N. Y.) 430; and Schieffelin v. Carpenter, 15 Wend. (N. Y.) 400, 407 {per Nelson, Ch. J.) ; Hesseltine v. Seavey, 16 Me. 212, 214 {per Shepley, J.) ; Vegely v. Robinson, 20 Mo. App. 19!); Forbes v. Smiley, 56 Me. 174; Wallace v. Ken- nelley, 47 N. J. L. 242; Smith v. Niver, 2 Barb. (N. Y.) 180; Randall v. Rich, 11 Mass. 494. In several of above cases leases were under seal. An unaccepted abandonment is not a surrender. Auer v. Penn, 99 Pa. St. 370; Gillis v. Morrison, 22 N. B. 207; Withers ;.•. Larrabee, 48 Me. 570; Lucy V. Wilkins, 33 Minn. 441 (cases of delivery up of key without accept- ance of possession) ; Williams v. Ackerman, 8 Or. 405 ; Doty v. Gillett, 43 Mich. 203; Conn. Mut. Life Ins. Co. v. U. S., 21 Ct. of Claims, 195; Rollins V. Moody, 72 Me. 135; Thomas v. Sanford Steamship Co., 71 Id. 548. Authorized by statute. — In New York the statutes give right to sur- render if premises become imtenantable without fault of lessee. Laws of 1860, chap. 345. Tliis right may be waived in lease. Butler v. Kidder, 8? N. Y. 98. Fears that premises innij become untenantable are not sufficient. Tallman v. Gashweiler, 13 Daly (N. Y.) 555. Defects in plumbing, causing overflow, odors, St. Michael's P. E. Church v. Behrens, 13 Id. 548, damages, Vann v. Rouse, 94 N. Y. 401, or escape of sewer gas, Bradley v. De Goicouria, 12 Daly (N. Y.) 392, have been held sufficient. Justifiable abandonment -without consent. — Lessee may abandon if lease was taken tln-cnigh material, false, fraudulent representations if he exer- cise the right seasonably. Conklin v. White, 17 Abbott's N. C. (N. Y.) 315, 317 {per Hyatt, J.) (house not as represented) , Lawrence v. Burrell, 17 Id. 312 (defect in flues, chimneys, &c.) ; Jackson v. Odell, 12 Daly (N. Y.) 345, 354 (abandonment after several months' occupancy) ; Wallace r. Lent, 1 Daly, 481 (failure to disclose existence of deleterious smells). A tenant cannot abandon premises, on account of gases and odors from adjacent premises. Franklin v. Brown, 53 N. Y. Superior Ct. 474 ; Sultphin v. Seebas, 12 Daly (N. Y.) 1.39. It has been held that he cannot abandon premises if the misrepresentations were not in'lfullij false, even though condition were injurious to health. Coul- son V. Whiting, 12 Id. 408. Eviction, actual or constructive, general or partial, justifies surrender. Warren v. Wagner, 75 Ala. 188, 204 (partial eviction) ; Simers v. Saltus, 3 Denio (N. Y.) 214 (constructive eviction). See post, ch. 10, sees. 6 and 7, notes. 481 *299 DETERMINATION OF TENANCY. [Ch. VIII. S. 3. tlie 8 & 9 Vict. c. 106, s. 3, whicli only applies to surrenders made in writing (^). Of this sort are surrenders created by the acceptance of a new lease from the reversioner either to begin presently, or at any time during the continuance of the first lease ; for the acceptance of a valid new lease im- plies a surrender of the existing lease (/), and operates as a surrender thereof b}- act and operation of law (m),^ but not if the second lease be void or voidable (w), or if there be a mere agreement for a future lease, and not an actual de- mise (o).^ The reason why such acceptance of a new lease operates as a surrender of the first is, because the lessee, by accepting the new lease, has been party to an act, the valid- ity of which he is afterwards estopped from disputing, and which would not be valid if the first lease continued to exist, for he would be estopped from saying that the lessor had not power to make the new lease ; and as the lessor could not grant the new lease until the first lease was sur- rendered, the acceptance of the new lease is of itself a surrender of the first (jo). What is a sufEcient new lease. — If a lessee for twenty years take a lease for ten years to begin at Michaelmas next, there is no doubt but that the term of twenty years is sur- (^0 Ante, 274. (n) Post, 278. (/) Davison d. Bromley v. Stanley, (o) John v. Jenkins, 1 Cr. & M. 4 Burr. 2210; Com. Dig. tit. Sur- 227; Foquet v. Moore, 7 Exch. 870; render (I.). Cannan v. Hartley, 9 C. B. 0.54, 048 ; (/n) Koll. Abr. tit. Surrender; Badeley v. Vigeurs, 4 E. & B. 71 ; 23 Crowley r. Vitty, 7 Exch. 310; 21 L. J., Q. B. 377. L. J., Ex. 13(5 ; Furnivall v. Grove, (p) Lyon r. Reed, 13 M. & W. 285 ; 8 C. B., N. S. 400 ; 30 L. J., C. P. 3. Bessell v. Landsberg, 7 Q. B. 038. ^ Surrender by acceptance of new lease. —This implies surrender of old, Hong V. Carpenter, 18 HI. App. 555 ; Jungerman t". Bovee, 10 Cal. 354 ; Livingston i-. I'otts, 10 Johns. (N. Y.) 28; Van Rensselaer's Heirs v. Penni- man, Wend. (N. Y.) 500 ; Donkersley v. Levy, 38 Mich. 54, though old were under seal and new by j)arol. Ryan v. Kircliberg, 17 111. App. 132 ; Smith V. Niver, 2 Barb. (N. Y.) 180. Old lease may be impliedly surrendered or cancelled by giving new lease to third party, with consent of lessee. Wallace V. Kennelly, 47 N. J. L. 212 ; Vandekar r. Reeves, 40 Hun (N. Y.) 430. 2 In Schieffclin i-. Carpenter, 15 Wend. (N. Y.) 400, it was held that if the new parol agreement was unperformed, though possession were taken under it, there was no surrender. 482 Cii. VIII. S. 3.] SURIIENDER (l5Y OPERATION OP LAW). *oOO rendered or determined immediately ; for by tlie lessee's acceptance of the new lease, he admits that the lessor is in a situation to demise to him notwithstanding the existence of the other lease ; and, indeed, by such acceptance the lessor has power to make a new lease * during [*300] the former (^q). But where a lessee for twenty-one years took a lease of the same lands for forty years, to begin immediately after the death of J. S., it was held that this was not any present surrender of the first term, because J. S. might wholly outlive that term, and then there would be no union to work a surrender: and it was considered that in the meantime, the chances being equal, whether he would survive it or not, the first terra should not be hurt till that contingency happened ; but that if J. S. died within the first term, then what remained of it was surrendered and gone by the taking place of the second (r). Where the lessee for years of a house accepts a grant of the custody of the same house, it is a surrender ; for the custody of a thing which was let before, is another interest in the same thing leased, and cannot stand with the first lease (s) : and if the first lease be of the land itself, and the second lease of the ves- ture of the same land, it is a surrender of the first lease : so it is if a lessee accept a grant of common, or rent out of the same land, to commence at a certain day within the term (^). If the king [or queen regnant] make a demise for years, the acceptance of a new lease is no surrender of the first lease (it) : so if a lessee accept a grant of a thing consistent with the lease of the land, it is no surrender ; as if the lessee of a manor accept the grant of a bailiwick, or the steward- ship of the same manor ; or if he accept the office of park- keeper of the same park for his life, it is no surrender, for the subsequent grant is merely collateral, and not of the thing itself (a:) ; but where a lessee for years of an advow- (r/) Ive V. Sams, Cro. Eliz. 521; (<) Cora. Dig. tit. Surrender (1. 1) ; Hutchins v. Martin, Id. 604 ; Bac. Mellows v. May, Cro. Eliz. 874. Abr. Leases (S. 2) ; 2 Smith L. C. (») Brook ?•.' Goring, Cro. Car. 197. 713 (6th ed.). (r) Gie v. Rider, 1 Sid. 75; Gybson (r) Bac. Abr. tit. Leases (S. 3). v. Searls, Cro. Jac. 176, 184 ; P^arl of (s) Gybson v. Searls, Cro. Jac. 177. Arundel v. Lord Gray, 2 Dyer, 200 b ; Woodward v. Aston, 1 Ventr. 296. 483 *301 DETERMINATION OF TENANCY, [Ch. VIII. S. 3. son was piesented to the aclvowson by the lessor it was adjudged to a surrender of his term (i/). "What does not create a surrender. — A recital in a second lease, that it was granted in consideration (amongst other things) of a surrender of a prior lease of the same premises, is not a surrender by deed or note in writing of such prior lease, as it does not purport to be of itself a surrender or yielding up of the interest (s). A mere agreement for a new lease is not sufficient to create an implied surrender of the previous one (a) ; so an agreement between the lessor and a stranger, that the lessee shall have a new lease, is no surrender (^) : and if a lessee accept a new lease in trust for another it is no surrender (c). But it seems that if a lessee re-demise to the lessor, for his whole term, re- [*301] serving a rent, that * amounts to a surrender (c^). A notice to quit at du future day cannot operate as a sur- render (e), but a written request by the tenant to his land- lord to relet the premises to some other person may, when acted on, amount to a surrender by act and operation of law (/). Effect of an invalid new lease. — No implied surrender by the grant of a new lease will take effect, if the new lease be absolutely void (^) : and if the new lease do not pass an in- terest according to the contract and intention of the parties, an acceptance of it is not an implied surrender of the old lease (7i). The acceptance of a voidable lease which is after- wards made void contrary to the intention of the parties, but which has operated to pass some part of the term con- (y) Gybson v. Searls, Cro. Jac. 84, M. & W. 328 ; BesscU v. Landsberg, 170. 7 Q. B. 038. (r) Roe d. Earl of Berkeley v. (/) Nickells v. Atlierstone, 13 Q. Archbp. of York, Last, 80; Doe B. 944. d. Earl of Egremont r. Courtenay, 11 (7) Zoucli d. Abbott v. Parsons, 3 Q. B. 702. Burr. 1807 ; Wilson v. Scwell, 4 Burr. (a) Ante, 276 (o). 1080; 1 W. Blac. 017; Roe d. Earl of (l>) I'orris v. Allin, Cro. Eliz. 173. Berkeley %•. Arehbp. of York, East, (c) Com. Dig. tit. Surrender (II.) 80; Davison d. Bromley r. Stanley, (L. 1). 4 Burr. 2210; Doe >) Dodd v. Acklom, M. & G. 672. 618; Furnivall v. Grove, 8 C. B., ( /) L. U., 2 Q. B. 1). 575; 46 L. J., N. S. 4{»0 ; :;0 L. J., C. I'. ;?. Q. B. 007 ; 37 L. T. 22. (rf) Cannaii v. Hartley, U C. B. 034. (7) Walls v. Atcheson, 3 Bing. 462. ^ Delivery of key. — See aulc, note, " Surrender (by operation of law)." 488 Cii. VIII. S. ;3.] SURRENDER (UY OPERATION OF LAW). *304 to the ferry for him, it was held to be a surrender by act and operation of law (A). AVhere a tenant from year to year agreed to buy the freehold of the land, it was held, that the agreement, not being absolute, but conditional on a good title being found, did not operate as a surrender of the tenancy by operation of law (<). Acceptance of another tenant. — The effect of a Surrender by operation of law has been extended to cases in which a third person has, with the consent of both landlord and tenant, taken possession of the demised premises and been treated by the landlord as his tenant {k'). A tenancy from year to year cannot be surrendered by the mere agreement of the landlord to accept a third person in the place of his tenant, unless such agreement be in writing, or the third person actually taken possession (/) : but an oral agreement between a landlord and tenant from year to year, that another tenant shall be substituted in his place, who is accordingly substituted, and thereupon takes possession, is a sufficient surrender to determine the former tenancy (w).^ Where a landlord grants a new lease to a stranger with the assent of the tenant under an existing lease, and the latter gives up his own possession, that is a surrender by operation of law (w)i fii^f^ there is a similar surrender if where A. being tenant from year to year sublet to B., and the original land- lord, with the assent of A. accept B. as his tenant (o). Where (/() Peter v. Kendal, B. & C. 703. 882 ; Lawrence r. Faux, 2 F. & F. 0) Doe d. Gray v. Stanion, 1 M. 435 ; Hobson v. Cowlev, 26 L. J., Ex. & W. 695 ; Tarte v. Darby, 15 M. & 209. W. 601. (,i) Davison V. Gent, 1 H. & N. 744; (k) Thomas v. Cook, 2 B. & Ad. 26 L. J., Ex. 122 ; Lawrence v. Faux, 119. See Smith L. & T. 308, where 2 F. & F. 435. this and similar cases are ably dis- (o) Thomas v. Cook, 2 B. & Ad. cussed, and it is remarked that the 119; Johnstone v. Hudlestone, 4 B. whole doctrine is an encroachment on & C. 922 ; Smith L. & T. 308-310 the Statute of Frauds. (2nd ed.) ; Wilson v. Sewell, 4 Burr. (/) Taylor v. Chapman, Peake Ad. 1975; Hall v. Burgess, 5 B. & C. 332 ; Cas. 19. Walls v. Atcheson, 3 Bing. 462; ()h) Stone J'. Whiting, 2 Stark. 2.35; Woodcock v. Nuth, 8 Bing. 170; Nickells r. Atherstone, 10 Q. B. 944 ; Lawrence v. Faux, 2 F. & F. 435. Walker v. Richardson, 2 M. & W. ^ Substitution of new tenant. — See ante, note, " Surrender (by opera- tion of law)." 489 *305 DETERMINATION OF TENANCY. [Ch. VIII. S. 3. two persons being tenants from year to year of two closes under different lessors agreed verbally to exchange tliem, wliich they did, and then the arrangement was mentioned to a person who was steward of both the lessors, and who [*305] * expressed his assent to it, it was held that this was evidence of new demises, and of a surrender by opera- tion of law of the previous interests of the tenants (jt>). A tenant from j-ear to year died, his widow remained in posses- sion, and continued paying the rent to the landlord, with the knowledge of a person who, above a year after, took out administration ; the widow still continued in possession for a year, paying the rent as before ; it was held, that this did not amount to a surrender by operation of law of the tenancy from year to year (^). A tenant quitted possession of prem- ises, and, on being applied to for rent, stated in a letter to his landlord, that he hoj)ed his landlord would be able to let them to some other person on better terms; this the land- lord did a few days after, and the new tenant entered and paid rent : it was held, that these facts amounted to a sur- render, but the court declined to consider the effect of the letter as evidence of a surrender b}' a note in writing within the Statute of Frauds (r). Where W. and H., Avho were partners, by agreement, in March, 1827, became tenants to the plaintiff, and at Midsummer, 1828, W. retired from the partnership, and in January, 1829, H. entered into partner- ship with S. ; and the jjlaintiff gave receipts for rent as received from H. after W. retired, and as received from H. and S. after S. became a partner ; and also gave H. a letter to his attorney, signifying that a lease might be made to H. and S., but which was kept by II. and not acted upon, and no lease was prepared; it was held, tliat W. remained liable for the rent accruing at the time of 11. and S. (,s'). Where premises had been let to B. for a term determinable by a notice to quit, and, pending the term. A., the landlord, agreed (p) Bees V. Williams, 2 C, M. & (?) Nickclls v. Atherstonc, 10 Q. R. 581 ; Lyon i;. Rcc'. & E. 49. (o) Cornish v. Scarcll, 8 B. & C. 471. 494 Cn. VIII. S. 4.] MERGER. *308 render to him who has the immediate reversion, either in fee or for any less estate (jo). Sect. 4. — Merger. What amounts to a merger of a term. — A lease for years may be determined by merger ; that is, when there is a union of the term with the immediate reversion, both being vested at the same time in one person in the same right. In such case the reversion merges or drowns the term, because they are inconsistent and incompatible (g). Nemo potest esse te- nens et dojuinus. A person cannot be, at the same time, both landlord and tenant of the same premises. ^ It may be laid down as a general rule, that whenever the particular estate and that immediately in reversion are both legal or both equitable, and by any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the same right, their separate existence will cease and a merger will take place. But where a tenant for ninety-nine years purchases the reversion in fee, and takes a conveyance thereof to a trustee for himself, expressly to pre- vent a merger, the term becomes one in gross, and no merger takes place (r). A particular estate will merge in a rever- sion of a shorter duration than itself (s) ; as if one be lessee for twenty years, and the reversion expectant thereon be granted to another for one year, who grants it to the (p) Bac. Abr. tit. Leases (S. 1,2); Cro. Jac. 019; Burton v. Barclay, 7 Challoner v. Davis, 1 Ld. Raym. 402 ; Bing. 745. Hughes V. Robotham, Cro. Eiiz. 302. (r) Belaney v. Belaney, L. R., 2 («/) Bac. Abr. tit. Leases (R.) ; 2 Ch. Ap. 138; 36 L. J., Cii. 2G5. Blac. Com. 177; Salmon v. Swan, (s) Hughes r. Robotham, Cro. Eliz. 302 ; Poph. 30. 1 Merger. — Ordinarily, assignment to lessor merges term in reversion, Smiley v. Van Winkle, Cal. (iO-j ; Bartels v. Creditors, 11 La. An. 4.'}3, unless there is outstanding sub-lease, Bailey v. Richardson, 66 Cal. 410. Lessee's sureties remain liable.' Hamilton v. Read, 13 Daly (N. Y.) 430. The term is not merged in a future possible fee under purchase option or covenant. Bostwick i;. Frankfield, 74 N. Y. 207; Stewart v. L. I. R. R. Co., 102 N. Y. 001. 495 *309 DETEKMINATIOX OF TENANCY. [Cii. VIII. S. 4. lessee, it -will operate as a merger of the twenty [*309] * years' term, and the term for one year will begin to run (^). Where a lessee made a sub-lease for all his term, except a few days, and then granted the sub-lease and the rent thereby reserved to his lessor for the term men- tioned in the sub-lease (but not for the few days so excepted), it was held, that the chattel interest was not merged in the fee (ti'). Where a lessee of premises for a term of twenty- one years, which would expire at Michaelmas, 1809, in De- cember, 1799, took a further lease of the same premises for sixty years, to commence from Michaelmas, 1809 ; and the lessor died in December, 1800, and devised the premises in question to A., the lessee, for his life, who by lease and release m 1806 conveyed his life estate to B.: — it was held that A.'s interest in the lease of 1799, which was to com- mence in 1809, was not merged in his estate for life (x). Sir Edward Coke lays it down as a general rule that a person cannot have a term for years in his own right, and a freehold in autre droit, but that his own term shall drown in the freehold ; but a man may have a term of years in autre droit, and a freehold in his own right (^) ; and it seems to be agreed, that if a man, being possessed of a term of years in right of his wife, purchase the inheritance, the term for years, though in right of his wife, is merged and extinct, because the purchase was the express act of the husband, and therefore amounts in law to a dis[)Osition of the term, by reason of the merger consequent thereupon ; but a bare intermarriagfe of a woman who is a termor with the rever- sioner will not merge the term, because by the intermarriage the term is cast upon the husband by act of law, without any concurrence or immediate act done by him to obtain the same ; and therefore in such case the law will preserve the term in the same plight as it gave it to the husband, till lie by some express act destroys it or gives it away (z). Where, (/) Cruise, T>\^. 00; Burton Conv. (y) Wol.b v. Rnssoll, 3 T. K. 401, 287 ; Steplifiis v. Bridges, MacM. 00. Lord Kinyon, C. J. («) Burton v. Barclay, 7 Bing. 745. (r) Co. Lit. 3:58 b ; Lady Piatt v. Ix) Doe (I. Hawlings v. Walker, 5 Slcap, Cro. .lac. 275 j Sug. V. & P. B. &C. in. 017 (14tli cd.). 496 Ch. VIII. S. 4.] MERGER. *310 however, the liusband himself is lessee for life, and inter- marries with the lessor, this merges his own term, because he thereb}^ draws to himself the immediate reversion, in nature of a purchase l)y his own voluntary act, and so undermines his own term ; whereas in the other case, the term existing in the woman until the marriage, is not thereby so drawn out of her or annexed to the freehold as to merge therein ; because that attraction which is only by act of law consequent upon the marriage, would, by merging the term, do wrong* to a married woman, and so take the term out of her, though the husl)and did no express act for that purpose, which the law will not allow. If a husband is possessed of a term of years, and the owner of the reversion in fee de- vises it to the wife, who has issue, the husband, who in the lifetime * of the wife is tenant by the curtesy [*310] initiate, holds the two estates in different rights, without having acquired the freehold by his own act, and consequently there is no merger (a). Administrator. — C. as administrator held certain land for a term of years, which he demised to P. for a shorter term. P. afterwards assigned this land to C. for the shorter term. In the first deed C. was described as administrator, but not in the second. It was held that there had been no merger in equity (6). Merger of reversion. — Formerly if a tenant for a term of years leased for a less term, and assigned his reversion, and the assignee took a conveyance of the fee, by which his former reversionary interest was merged, the covenants of the sub-lease incident to that reversionary interest were thereby extinguished (c). But by 8 & 9 Vict. c. 106, s. 9, "when the reversion expectant on the lease, made either before or after the passing of this Act, of any tenements or hereditaments of any tenure, shall, after the 1st of October, 1845, be surrendered or merged, the estate, which shall for (a) Jones i'. Davies, 5 H. & N. 76G; (c) "Webb v. Russell, 3 T. R. 393; 7 Id. 507 ; 29 L. J., Ex. 374. Tborne v. Woolcombe, 3 B. & Ad. (6) Chambers v. Kingham, L. R., 586. 10 Ch. D. 743; 39 L. T. 272, per l'>y, J. 497 *310 DETERMINATION OF TENANCY. [Ch.VIII. S. 5. the time beins: confer as ao-ainst the tenant under the same lease the next vested right to the same tenements or heredit- aments, shall, to the extent and for the purpose of preserv- ing such incidents to and obligations on the same reversion as, but for the surrender or merger thereof, would have sub- sisted, be deemed the reversion expectant on the same lease." Merger after Judicature Acts. — By the Judicature Act, 1873, s. 25, subs. (4), "■ there shall not after the commence- ment of this act ((?), be any merger by operation of law only of any estate, the beneficial interest of which would not be deemed to be merged or extinguished in equity." Sect. 5. — Forfeiture. (a) Hoiv incurred generally. By breach of covenant, -where condition of re-entry. — A lease may be determined by entry or ejectment for a forfeit- ure ^ incurred either by (1) breach of a condition therein in (J) I.e.. 1st of November, 1875. 1 Forfeiture clauses. — (a) The law construes tliem strictly. Waterman V. Clark, 58 Vt. GUI; Machias Hotel Co. v. Fisher, 50 Me. 321; Jackson v. Silvernail, 15 Johns. (N. Y.) 278, and Jackson v. Harrison, 17 Id. (56 (cove- nant against assigning not broken by subletting) ; Adams v. Goddard, 48 Me. 212 (to pay e.xtra insurance not broken without proof that extra insurance is due) ; Eberts v. Fisher, 54 Mich. 294 (to pay assessments not broken until their validity settled). (/;) Limitations. — If provisions are limitations, breach of them ipso facto terminates title. 4 Kent's Com. sec. 127 ; Wilde, J., in Fifty Associates r. Howland, 11 Met. (Mass.) 0!). ((•) Rc-evtrij c/au.ses. — If provisions (not limitations) are joined to re-entry clauses, breacli of them works no forfeiture, utiles.^ lessor or his rei)resenta- tive re-enters. Strangers cannot enforce tiiem. Porter r. Merrill, 124 Mass. 6'U, 541 ; Shumway v. Collins, (i Gray (Mass.) 227, 230; Welch v. Silliman, 2 Hill (N. Y.) 491, 495. The lessor or his rejtresentatives n«iy enter, Fifty Associates v. IIow]aner Rogers, J., applies doctrine to tenancies for years, hut doubt if it applies to leases in fee) ; Jackson v. Vincent, 4 Wend. (N. Y.) (V-\?> (lease for si.xty-seven years terminated) ; Duke v. Harper, 6 Yerfj. (Tenn.) 280; Doty v. Burdick, 83 111. 473; Brown v. Keller, 32 Id. 151, 155; Tuttle r. Reynolds, 1 Vt. 80; Currier v. Pkrl, 13 Me. 21(); Campbell v. Procter. Cirecnl. (Me.) 12; liryant ;•. Tucker, 19 Id. 383; as receiving deed from stranf^cr, Bennock v. Whipple, 12 Me. 34() ; makinj? conveyance in fee, for years, or in niortfjage, "Ware v. Wadleifjh, 7 Id. 74 ; Esty v. Baker, 50 Id. 325; Little v. Palister, 4 Id. 209; i)ointinK out premises (to he levied ujjon) ae own property, Cam])bell r. Procter, (5 (Jreenl. (Me.) 12; claiminj; iinder deed from third party, Jackson i\ Vincent, 4 Wend. (N. Y.) (533; or declaring that one had taken deed or afrreed to accept lease from third party, Jackson V. Collins, 11 Johns. 1, &c. 500 Cii.VIII. S. 5.] FOKFEITURE. *312 the land for more years than he himself has is no forfeiture, because it is only a contract between him and his sublessee (or rather assignee), which cannot possibly prejudice the interest of the original lessor, and does not even pretend to usurp or touch the freehold or inheritance. A pro- viso in a lease for re-entry on a condition * broken [*312] can only operate during the term (o). But it will extend to any new implied tenancy from year to year upt)n the like terms and conditions (77). Time and place of performance of condition. — Where a time certain is appointed in a proviso or condition for the perform- ance of anything, neither party is bound to attend at any other time ; and if it is provided that any act be done on a day certain, but no hour of the day is specified wherein the same shall be done, the party must attend such a length of time before and until sunset as may be convenient to do the act. If a place be limited and agreed on by the parties where the condition is to be. performed, the party who is to perform is not obliged to seek the party to whom it is due elsewhere, nor is he to whom it is to be performed ohlir/ed to accept of the performance elsewhere ; but he may accept it at another place, and it will be good (^). Effect of the Statute of Limitations. — The Real Property Limitation Act, 1874 (37 & 38 Vict. c. 74), bars the party who has a right to enter for a forfeiture, but who neglects to do so for more than twelve years after his right accrued (r). Where an ejectment is founded on a particular forfeiture, it must be commenced within twelve years after such forfeiture accrued (s). But a lessor is not bound to take advantage of the first or any other forfeiture committed during the term (?). Therefore it is no defence to an ejectment com- menced after the expiration of the lease that a forfeiture and (o) Johns V. Whitley, 3 Wils. 127. (s) Cole Ejec. 11. (p) Thomas v. Packer, 1 H. & N. (t) Doe d. lioscawan v. Bliss, 4 669. Taunt. 735; Doe d. Sheppard v. (tj) Bac. Abr. tit. Conditions (O. 4). Allen, 3 Taunt. 78; Doe d. Bryan v. (r) Doe d. Tarrant v. Hillier, 3 T. Bancks, 4 B. & A. 401 ; Doe d. Baker R. 102. V. Jones, 5 Exch. 498. 601 *313 DETERMINATION OF TENANCY. Ch. VIII. S. 5, right of re-entry thereon accrued under the lease more than twelve years before the commencement of the action (zt). Estate of party entering. — It may be laid down for a gen- eral rule that he who enters or recovers by ejectment for a condition broken shall be seized or possessed of that estate which the lessor had at the time of the estate made upon condition ; and he may avoid all mesne charges and incum- brances (a;).^ (b) Construction of Proviso for Re-entry.'^ Construction of proviso for re-entry. — Provisoes for re-entry in leases are conditions annexed to the term, and are to be construed, like other contracts, according to the intent of the parties to be collected from the words used, and not with the strictness of conditions at common law (?/) ; there- fore, where there is a proviso in a lease, that on non- [*313] payment of rent or non-performance * of any of the lessee's covenants the term shall cease, the lessor, and not the lessee, has the option of determining a lease upon a breach made (z). A j)roviso in a lease, that, upon breach of any of the covenants therein on the part of the lessee, the lessor may re-enter on the premises, "-and the same have again, as if the said lease had never been made," means, that the lease is to be void from and after re-entry by the lessor, and does not deprive him of the right of bringing an action of covenant for rent which accrued previously : and this principle equally api)lies to a covenant for repairs or other service to be rendered by the lessee (a). An agreement of («) Cole Ejor. 11 ; Doo d. Allen v. E. & B. CfiT ; II. L. Cas. G72 ; 27 L. Blakoway, 5 C. & P. o7;5. 100 ; Excli. Clianib. per Clianncll, B. ; (/.) Doe d. Spencer v. Godwin, 4 M. see also Doe d. Pulk v. Marehetti, 1 & S. 205. B. & Ad. 715; Evans v. Davis, G9 L. T. at pp. .']<(2, 31)4. 604 Cii. VIII. S. 5.] FOEFEITURE. *315 good ; and indeed in Hyde v. Warden (n) the Court of Appeal was prepared to hold, if it were neeessary, that the power of re- entry in event of the lessee " wilfully failing or neglecting to perform any of the covenants " does not apply to a breach of a negative covenant. But as was pointed out by Blackburn, J., in Wadham v. Postmaster General (o), the difficulty arises in consequence of the form of the i)roviso for re-entry. A proviso expressed to operate in case of " breach " or "• non- observance " for instance, as well as in case of non-perform- ance, would seem clearly to apply to the breach of a negative covenant. Proviso for re-entry for -waste to fixed value. — Where a lease contained a proviso for re-entry, if the lessee * committed waste to the value of 10s., and the lessor [*315] re-entered, and brought ejectment in consequence of the tenant's having pulled down some old buildings of more than 10s. value, and substituted others of a different descrip- tion : it was held, that the waste contemplated in the proviso was waste producing an injury to the reversion, and that it was a question for the jury whether, under all the circum- stances, such waste to the value of 10s. had been com- mitted (/»). Effect of covenant ■with penalty on proviso for re-entry. — Where there was, amongst others, a covenant not to carry off hay under a penalty, and a clause followed which enumer- ated all the covenants except that, and provided for re-entry upon breach of any of the covenants ; it was held, that the penalty did not prevent the clause of re-entry from applying to the hay covenant, the words being large enough (ost. Davis, C. & P. 614. (o) Doe d. Bryan v. Bancks, 4 B. (y) Doe d. Gatehouse v. Rees, 4 & Ad. 401 ; Doe d. Boscawan v. Bliss, Bing. N. C. 384. 4 Taunt. 735; Roberts v. Davey, 4 B. (r) Doe d. Griffith v. Pritchard, 5 & Ad. 664. 507 *317 . DETERMINATION OF TENANCY. [Ch. VIII. S. 0. duce that person, or, if he should be in a foreign country, to make it appear by a good and sufficient certificate that he was living, with a proviso for re-entry on default ; [*317] the person having * gone to Brazil, an affidavit that the deponent had three years before seen him, and had often heard from him since, and was convinced that he was alive nine months before when the deponent left Brazil, was held not to be a sufficient certificate within the covenant, and that therefore a forfeiture was incurred (5). For no sufficient distress. — Under a clause of forfeiture in case no sufficient distress can be found upon the premises, every part of the premises must be searched (c). For non-payment of rates. — Where a lessee has broken his covenant to pay rates and taxes, the lessor may avail himself of the proviso for re-entry without proof of any demand made (c?). (c) Who may avail themselves of a Forfeiture. Not the lessor. — A lessee cannot avail himself of his own act or default to vacate a lease ; on the principle that no man shall be permitted to take advantage of his own wrong () Roe d. Bamford v. Hajley, 12 Taunt. 23; Lit. s. 847 ; Co. Lit. 214 b. East, 464. (/) Doe d. Barney ;•. Adams, 2 C. (7) Doe (/. Rutzen v. Lewis, 5 .4. & & J. 232 ; Moore v. Earl of Plymouth, E. 277. 3 B. & A. 06. 509 *319 DETERMINATION OF TENANCY. [Cn. VIII. S. 5. and his assigns ; it was lield, that " assigns " meant assigns of the settlor ; and that although the right of re-entry could not be well reserved to the lessor, yet that the owners of the reversion under the settlement for the time being were entitled to the advantage of it as " assigns " (r). Where 'a lease was granted of a piece of land with two partly-erected messuages thereon, and the lessee covenanted to complete them within two months, and also to keep the said messuages in repair during the term, with a proviso for forfeiture for breach of an}- of the covenants, and the messuages were never completed, but after the expiration of the two months the reversion was assigned to the plaintiff, and afterwards the messuages were much dilapidated in the roofs and other parts ; it was held, that whether the plaintiff could or not maintain ejectment for not completing the messuages within the two months, he could certainly do so for the subsequent non-repair (s). Right of assignee of reversion to re-enter. — At common law, no one but the grantor could re-enter for a forfeiture ; and no grantee or assignee of the reversion could take the bene- fit or advantage of a condition for re-entry (^), but by 32 Hen. 8, c. 34, all grantees of the reversion, their heirs, ex- ecutors, successors and assigns, have the like advantage against the lessees, their executors, administrators and as- signs, hy entry for non-payment of rent, or for doing tvasfe or other forfeiture, and the same remedy by action only for not performing other conditions, covenants and agreements con- tained in the said leases as tlie lessors or grantors themselves had (w). [*319] * (d) mtry of Lessor. Entry for a forfeiture generally. — Generally speaking, where a forfeiture lias been incurred for breach of any covenant or condition, the kissor must do some act eviden- cing liis intention to enter for the forfeiture and determine (r) ^Jrc-onaway r. Hart, 14 C. IJ. f/) Lit. s. .')74 ; Co. Lit. 214. 348; 2.". L. J., C. r. 115. (») As to tlie application of this (a) Bennett v. Herring, 3 C. B., N. act, see Chap. VIL, Sect. 3, " Assign- S. 370. ment of Reversion," ante, 236. 510 Cu. VIII. S. G.] FORFEITURE. *3iy the lease (.r) : and tlie lease will be avoided from that time onlij (y). Perhaps an actual entry should be made lefore action to avoid a freehold lease ; but the action itself is suffi- cient to avoid a lease for years (2). Entry by corporations aggregate. — A corporation aggregate cannot, without deed, authorize their servant or agent to enter into land on their behalf for a condition broken («)*^ (e) For Non-payment of Rent? In ejectment proviso for re-entry necessary. — No ejectment can be maintained for non-payment of rent unless the reser- vation amount to a condition, for there is an express proviso in the lease or agreement giving the landlord a right to re- enter and determine the lease or tenancy for sucli non-pay- ment (6). Demand of rent dispensed with by agreement. — Such con- dition or proviso niiiy by express words dispense with the necessity of a formal demand of the rent ; as where it says, " although no formal demand shall have been made thereof," or to that effect (c). If the proviso be for re-entry on de- fault in payment of rent within twenty -one days, being de- manded, the demand must be made after the twenty-one days have elapsed ((/). By the Common Law Procedure Act, 1852 (15 & 16 Vict, c. 7G), s. 210, a formal demand of the rent is rendered un- necessary in all cases between landlord and tenant when one-half year's rent is in arrear, and no sufficient distress is to he found on the demised premises, or any part thereof. {x) Fenn d. ^Matthews r. Smart, 12 {h) Doe d. Dixon v. Roe, 7 C. B. East, 444, 451 ; Arnsby v. Woodward, i;}4; Hill v. Kempshall, Id. 975. 6 B. & C. 519; Roberts v. Davey, 4 (c) Doe d. Harris i-. Masters, 2 B. B. & Ad. 064 ; Baylis v. Le Gros, 4 C. & C. 490 ; Goodright' d. Hare v. Cater, B., N. S. 537 ; 6 Id. 552. 2 Doug. 477, 486. (//) Cole Ejec. 408. {d) Phillips v. Bridge, 43 L. J., C. [z) Cole Ejec. 403. P. 13; 29 L. T. 692. (a) 1 Roll. 514. ^ A deed is not necessary and a formal vote is not always required in the United States. See ante, Ch. 8, (a), notes. - See ante, Ch. 8, (a), notes. 511 *320 DETERMINATION OF TENANCY. [Ch. VIII. S. 5. countervailing the arrears then due ; and the lessor has power to re-enter for non-payment thereof (e). To what cases applies. — The above enactment only applies — 1. As between landlord and tenant. But the assignee of a lessee, whether by way of mortgage or otherwise, is a " tenant " within the meaning of the enactment (/) : so is a mere sublessee, because he is a person " claiming or deriving under the lease " (^). 2. One half-3'ear's rent at the [*320] least must * be in arrear (7i). 3. No sufficient dis- tress to be found on the demised premises, or any part thereof, countervailing the arrears due (/) ; i.e. all tlie arrears, and not merely half-a-year's rent where more is due (k'). But a strict search must be made on the demised premises after the last day for saving the forfeiture, and before the writ issues (or at all events before the writ is served) (?)? to ascertain that there is no sufficient distress on any part of the demised premises (?«). Unripe growing crops may amount to a sufficient distress (n). A distress is not to be "found" on the demised premises where it cannot be got at by reason of the tenant having locked the outer doors, &c. (0), nor unless the goods are so visibly there that a broker going to distrain would, using reasonable diligence, find them so as to be able to distrain them (p). If a dis- tress be found on the demised premises sufficient to satisfy so much of the rent as would reduce the arrears to less than {e) See post, Chap. XXII., Sect. 1. (m) Rees d. Powell v. Kinp:, For- (/) Doe d. Whitfield v. Roe, 8 rest, 19, cited 2 Brod. & B. r)U ; Doe Taunt. 402; Williams v. Bosanquet, d. Forster v. Wandlass, 7 T. R. 117; 1 Brod. & B. 2r>8. Doe d. Smelt v. Fuchau, 15 East, 28(; ; (9) Doe d. Wyatt r. Byron, 1 C. B. Doe d. Ilaverson r. Franks, 2 C. & K. 623; 3D. &L. 31. 078; Price r. Worwood, 4 II. & N. (A) Hill I'. Kenipshall, 7 C. B. 075; 512; 28 L. J., E.x. .320; AVheeler v. Cotesworth i-. Spokes, 10 C. B., N. S. Stevenson, G IT. & N. 155; 30 L. .7., ]0:i; 30 L. J., C. P. 220; 2 F. & V. Ex. 06. 390. (») Ex prnle Arnison, L. R., 3 Ex. (i) Doe (/. Forster ;•. Wandlass, 7 56; 37 L. J., Ex. 57. T. R. 117. (o) Doe d. Chippendale v. Dy.son, (k) Cross V. Jordan, 8 Exch 140; 1 Moo. & M. 77; Doe d. Cox c. Roe, overruIinR Doe d. Powell r. Roc, 5 D. vt L. 272 ; Hammond r. Mather, Dowl. 548. 3 F. & F. 151. (/) Doe d. Dixon r. Hoc, 7 C. B. (/») Doe d. Haverson i'. Franks, 2 134. C. & K. 078. 512 Cii. VIII. S. 5.] FORFEITURE. *321 half-a-year's rent, and it is wished to bring ejectment, no distress should be taken (jq) ; but clear proof should be obtained as to the insufficiency of the distress to satisfy all the arrears (r). A distress for rent, under whi(;h part was recovered, will not prevent an ejectment for the residue, provided such residue amount to half-a-year's rent, or more, and there be no suflicient distress on the premises to satisfy such residue (s) ; but it is otherwise where the proceeds of the distress reduces the arrears to less than half-a-year's rent (f). 4. The landlord or lessor to whom the arrears are due must have "right by law to re-enter for non-payment thereof " (u). The right to re-enter must be a right to enter and determine the lease for non-payment of the rent, and not merely a right to enter and hold the premises until the arrears are paid : otherwise tliis section will not apply (x). The twenty-one days or other specified period mentioned in the proviso must have elapsed before any forfeiture can accrue for non-payment of the rent (?/). If the proAdso con- tain the words "being lawfully demanded," no de- mand * will be necessary if it be proved that half-a- [*321] year's rent was due before action brought, and no sufficient distress to be found on the demised premises (z). Service of the writ of ejectment under the above circum- stances is sufficient " without any formal demand or re- entry" (a). The statute makes such service a substitute for, and equivalent to, a formal demand of the rent accord- ing to the strict rules of the common law (J). And the right of re-entry by virtue of the statute must be taken to have accrued on the day when the forfeiture would have {q) Cotesvvortli v. Spokes, 10 C. B., (?/) Doe d. Dixon v. Roe, 7 C. B. N. S. 103 ; 30 L. J., C. P. 220 ; 2 F. & 134. F. 390. (s) Doe d. Scholetield v. Alexander, (r) Doe d. Haverson v. Franks, 2 2 M. & S. 525 ; Doe d. Earl of Shrews- C. & K. 678. bury v. Wilson, 5 B. & A. 3G4 (4th (s) Bre-.ver d. Ld. Onslow v. Eaton, point) ; Id. 384, 394 ; 1 Wms. Saund. 3 Doug. 230. 287 a, n. ; Cole Ejec. 417. (0 Cotosworth V. Spokes, 10 C B., (a) 15 & 16 Vict. c. 76, s. 210. N. S. 103; 30L. J., C. P. 220. (6) Cole Ejec. 417; Hassell d. (h) Brewer d. Ld. Onslow v. Eaton, Hodgson v. Gowthwaite, Willes, 500, 3 Doug. 230, cited 6 T. K. 220. 507. (x) Doe d. Darke v. Bowditoh, 8 Q. B. 973. 513 *321 DETERMINATION OF TENANCY. [Ch. VIII. S. 5. accrued at common la^y if a demand of payment had been dul}' made, and not when the writ of ejectment was served (c). The statute merely authorizes an action of eject- ment in those cases to which it applies, but it will not justify the landlord or lessor in making an actual entry for non- payment of the rent (tf). Demand of rent according to the common law. — Unless there are express words in the lease or agreement dispensing with a formal demand of the rent, or the case falls within the above enactment, no entry or ejectment can be main- tained for non-payment of rent unless there has been a formal demand thereof made according to the strict rules of the common law (e).^ Such rules are as follows : 1. By whom. — The demand must be made by the land- lord or by his agent duly authorized in that behalf (/). 2. On what day. — It must be made on the very last day to save the forfeiture. Therefore, if the proviso for re-entry be on non-payment of rent for thirty days after it becomes due, the demand must be made on the thirtieth day after the rent became due (exclusive of the day on which it became due), and not on any other day before or afterwards (^). 3. At sunset. — It must be made a convenient time before and at sunset (/*). It must be continued actively or con- structively until sunset («). 4. At the proper place. — It must be made at the p7'oper place. Therefore, if the lease or agreement specify the place at Avhich the rent is to be paid, the demaiul must be made there and not elsewhere (A;). But if no place be so appointed, the demand must be made upon the land, and at (c) Doe (I. Lawrence v. Shawcross, ((j) Doe rf. Dixon v. Roe, 7 C. B. 3 B. & C. 7r)2. 184; Doe d. Forster i-. Wantllass. 7 ((/) Cole Ejeo. GO. T. R. 117 ; Smith and Bustard's case, (c) Molineux i'. Moiineux, Cro. .lac. 1 Leon. 141 ; Plow. 70 ; Co. Lit. 202 a. 144; Doe d. Forster v. Wandlass, 7 (It) Co. Lit. 202 a ; 1 Wms. Saund. T. K. 117 ; Acocks v. Phillips, 5 H. & 287 ; Cole Ejee. 4i:'5. N. 18.']; Barr v. Glover, 10 Ir. Com. (/) Wood and Cliiver's case, 4 Leon. L. R. li:]. 170; Acocks i-. Phillips, 5 H. & N. l.s;J. (/) Roe d. "West v. Davis, 7 East, (/) Borrou^h's case, 4 Co. R. 7:]; ^m; Toms i-. Wilson, 32 L. J., Q. B. Buskin v. Edmunds, Cro. Eliz. 415; 33; Id. 382. Co. Lit. 202 a. * See ante, (a), notes. 614 Cii. VIII. S. 5.] FOIIFEITUKE. *322 the most notorious place of it (Z). Tlierefore, if there be a * dwelling-house upon the land, the de- [*322] mand must be made at the front door of it ; but it is not necessary to enter the house, although the door be open (m). If the premises consist of a wood only, the demand must be made at the gate of the wood, or at some highway leading through the wood, or other most notorious place. If one place be as notorious as another, the lessor has election to demand it at which he will (n). Such demand must be actuallj^ made, although there be no person present on behalf of the tenant to answer it (o). Or it may be made on a subtenant (|>). 5. The demand must be made of the precise sum then paya- ble, and not one penny more or less (9). If the rent be payable quarterly, and more than one quarter is due, only the last quarter's rent should be demanded, and not the previous arrears, otherwise the demand will be altogether bad (r). (f) Waiver of Forfeiture. Acknowledgment of continuance is waiver of forfeiture. — Courts of law always lean against forfeitures ; therefore, whenever a landlord means to take advantage of any breach of covenant or condition so that it should operate as a for- feiture of the lease, he must take care not to do anything which may be deemed an acknowledgment of the continu- ance of the tenancy, and so operate as a waiver of the for- feiture.^ (J) Cole Ejec. 413. (17) Fabian and Winsor's case, 1 (m) Co. Lit. 201b; 1 Wms. Saund. Leon. 305; Fabian v. Winston, Cro. 287. Eliz. 209. (n) Co. Lit. 202 a. (r) Scot v. Scot, Cro. Eliz. 73; (o) Kidwelly I'. Brand, Plow. 70 a, Tonikins v. Pincent, 7 Mod. 97; 1 70 b ; Co. Lit. 201 b. Salk. 141 ; Doe d. Wheeldon v. Paul, (/)) Doe (/. Brook v. Brydges, 2 D. 3 C. & 1'. 613. & K. 29. 1 Waiver — what constitutes. — A breach of covenant to pay rent (joined to a re-entry clause) is waived by receipt of rent after entry. Coon V. Brickett, 2 N. H. 163. Receipt of rent after breach of covenant against subletting (joined with re-entry clause) is a waiver or breach of covenant against assigning. Crouch v. Wabash, St. L. & Pac. Ry. Co., 22 Mo. App. 315. 515 *323 DETERMINATION OF TENANCY. [Ch. VIII. S. 5, Lying by. — ^Merely lying by and witnessing the breach is no waiver : some positive act must be done (s). The gen- eral rule is, that if a lessor, or other person legally entitled to the reversion, knowing that a forfeiture has been incurred by the breach of any covenant or condition, do is any act whereby he acknowledges the continuance of the tenancy at a later period, he thereby waives such forfeiture (^). "What acts amount to -waiver. — Thus, the following acts amount to a waiver : — Demand of rent accruing due after the forfeiture, if the demand be absolute and unqualified (?/). Acceptance of rent accruing due after the forfeiture (x). Such an acceptance operates as matter of law to waive all forfeitures then known to the lessor, notwithstanding any protest on his part against such waiver (?/) ; but the [*323] subsequent receipt of rent * due prior to the forfeit- ure is no waiver (3). Action for rent accruing due after the forfeiture (a). Distress for rent (6). A forfeiture of a lease by a lessee's insolvency has been held to be waived by acceptance of rent from him after his discharge under the Insolvent Act (c). "Waiver by pleading. — Forfeiture may be waived by a pleading, as was held in a case where a landlord, suing in respect of breaches of covenants agreed to be inserted in a lease contracted for, claimed an injunction and possession, but stated in his pleadings that he was willing to grant the lease (c?). Waiver by distress. — It is well settled that a forfeiture is (s) Doe d. Shcppard v. Allen, 3 Davenport v. Reg., L. R., 3 App. Caa. Taunt. 78. 115, P. C. (0 Dendy v. Nicholl, 4 C. B., N. S. (z) Marsli v. Ciirteys, Cro. Eliz. 376; 27 L. .T., C. P. 220; Pcllatt v. 528; Price v. Worwood, 4. H. & N. Booaey, 31 L. J., C. P. 281 ; Ward v. 612 ; 28 L. J., Ex. .329. Day, 4 B. & S. .337; 5 Id. 359; 33 («) Dendy v. Nicholl, 4 C. B.,N. S. L. J., Q. B. 3, 254. 376 ; 27 L. J., C. P. 220. («0 Doe ) Coteswortli ;•. Spokes, 10 C. B., W. 402, at p. 408, per Parke, B. N. vS. 103 ; 30 L. .1., C. P. 220. (x) Doe d. Gatehouse v. Bees, 4 (c) Doe d. Gatehouse v. Rees, 4 Binp. N. C. 384 ; Doe d. Griffith v. Bing. N. C. 384. Pritchard, 5 B. & Ad. 705. {d) Evans v. Davis, L. R., 10 Cli (y) Croftv.Lumley,5 E. & B.048; D. 747; 48 L. J., Ch. 223; 39 L. T 6 H. L. Gas. 672 ; 27 L. J., Q. B. 321 ; 391 ; 27 W. R. 28f.. 516 Cu. VIII. S. 5.] FORFEITURE. *324 waived by distress (c), and it seems also, as was pointed out by Crompton, J., in Ward v. Day (/), that the doctrine of waiver by distress depends on a different principle from that of waiver by other acts — the principle that distress can only be levied on a tenant — so that a distress waives any forfeit- ure not only up to the day on which the rent distrained for was due, as had been previously held in Cotesworth v. Spokes (^), but up to the day of the distress itself. A case in the Year Books appears to show this (A). No ■waiver by acceptance of rent, &c., after ejectment. — If ejectment be brought on a forfeiture of a lease, and after the bringing of such ejectment the landlord accept rent (i), or distrain (A-), or set up as a cause of forfeiture a subsequent non-payment of rent (Z), it is no waiver. This best appears from Grim wood v. Moss, where a landlord brought eject- ment on the 21st of July, and after action brought, distrained for rent due on the 24th of June. It was held that, in the action of ejectment, he might rely on a forfeiture accruing before the 24th of June, and it was said that the distress was a simple act of trespass (m). Of course, if there be an inten- tion to waive, it is otherwise, as was held on demurrer in a case where the facts pleaded amounted to an agreement for a new tenancy on the terms of an old lease (w). Lessor must have notice of forfeiture. — In order to render acceptance of rent or any other act a waivei' of a forfeiture, the lessor must have notice or knowledg-e of the forfeiture o * at the time of the supposed waiver (o), unless the [*324] forfeiture be of such a nature as to be equally within (e) Cotesworth r. Spokes, s»/»-a. C. P. 300; 41 L. J., C. P. 239; 27 (/) 4 B. & S. .336 ; 33 L. J., Q. P.. L. T. 768. 11; Smith L. & T. (3rd ed.) lol ; 1 (/) Tolenian r. Portbury, 41 L. J., Sm. L. C. (8th ed.) 61 ; Cotesworth v. Q. B. 98, Ex. Cli. Spokes was not cited in Ward y. Day. (in) Grimwood v. Moss, iibi supra, (g) Supra, note (ft). per Willes, J. (A) 14 Ed. 3, 3rd Ass. cited in Ward (n) Evans v. Wyatt, 43 L. T. 176. V. Day hy Blackourn, J. (o) Pennant's case, 3 Co. R. 63 b; (0 Doe d. Moorecraft v. Meux, 4 Duppa v. Mayo, 1 Wms. Saund. 288 a, B. & C. 606; 1 C. & P. 346; Jones v. b, note (16) ; Harvie v. Oswel, Cro. Carter, 15 M. & W. 718. Eliz. 5()3, 572; Goodright d. Walker (i) Grimwood v. Moss, L. R., 7 v. Davids, 2 Cowp. 803. 517 *324 DETERMINATION OF TENANCY. [Ch. VIII. S. 5. the knowledge of both the lessor and lessee (p). The act which is insisted on as amounting to a waiver is matter of evidence only, to show with what intent it was done, to be left to the jury under the circumstances of the case (^). Where a lessor was too ill to attend to business, and it did not appear that he knew of a forfeiture, his son, who col- lected the rents, was held not to have authority to waive a forfeiture (r). Continuing breach. — Where the breach is of a continuing nature, the waiver of any forfeiture up to a certain day will afford no defence to an ejectment for a subsequent breach (s) ; as where the covenant is to keep the demised premises in repair during the term (^), or to keep them insured in a certain manner from loss or damage by fire during the term (it), or not to use certain rooms in a particular man- ner (x). Acceptance of rent which becomes due pending a notice to repair, is no waiver of a subsequent forfeiture occa- sioned by non-compliance with such notice (^). Indeed, it would seem that acceptance of rent due after the expiration of the notice will not bar an ejectment if the premises con- tinue subsequently unrepaired (2). Distress only ackno'wrledges tenancy up to day of distress. — A distress and continuance in possession may be a waiver of a forfeiture existing at the time (a) ; but a distress is only an acknowledgment of a tenancy to the day of the distress, and a waiver of any forfeiture to that time (i). Where the plaintiff, after the service of a writ in ejectment for non-pay- (p) Iloe d. Gregson v. Harrison, 2 (r) Doc d. Ambler v. Woodbridge, T. R. 425. IJ. & C. 370. (7) Doe ) Doe d. Flower v. Peck, 1 B. & 1 1 Q. B. 308, 374 ; Hyde v. Watts, 12 Ail. 428 ; Ward v. Day, 4 B. & S. 337 ; M. & W. 254 ; 1 I). & L. 479 ; Doe d. 33 L. J., il B. 54; 9. c. in error, 5 Flower v. Peek, 1 B. & Ad. 428. 1'.. & S. 359. 518 Cii. VIII. S. 5.] FORFEITURE. *32r) merit of rent, distrained for rent which subsequently became due ; and by the notice of distress stated that sucli distress was made without prejudice to the year's rent due on the 25th of March, and for which ejectment proceedings were then pending ; it was hekl, that such distress did nut oper- ate as a waiver of the ejectment (e). Breach of covenant to repair. — A forfeiture incurred by breach of a covenant to repair generally, is waived by a notice given by the landlord, under a special covenant * that he should enter and do the repairs, and dis- [*325] train for the expenses () Hare, 083. 0/) Sanders v. Pope, 12 Ves. 262. (r) 20 T.. J., Ch. 483. (z) 3 GilT. 075. In this case the (- ment of differences to a court having the most absolute and comprehensive discretion. Decisions. — It has been laid down that the lancHord's (n) See Cli. XVII., Sect. 2, post. piirpo.ses, tliat is, the searcliinp: for, (o) See p. 274, ante. By s. 2, suVjs. wii>iiin}j, workiiifj;, gettiiiif, iiKikiiif^ (xv.), of the Act "bankruptcy in- iiuTchaiitfible, carrying away, or dis- cludes liquidation by arrangement, jxising of mines and minerals, or and any other act or jiroceeding in jjiirposcs connected therewith, and law having, under any act for tlie includes a grant or licence for mining time being in force, effects or results j)uri)oses." similar to tliose of bankruj)tcy." ((/) See the eflcct of these enact- (/j) Uy 8. 2, subs, (xi.) of tlie .'\ct mentswiiicli relate torelief against for- k's Qiining lease is a lease for mining feiture for nou-insurance, ]>. .'128, <(///<». 526 Ch. VITI. S. 0.] RELIEF AGAINST FORFEITURE. *331 notice under sub-s. 1 must expressly require the tenant to remedy the breach complained of (r) ; that sul>s. 2 has no application where the landlord has actually re-entered (s), that although no notice may have been given, the Court has an absolute discretion to refuse relief (ss) ; and tluit for relief to be grantable, it is not necessary that it should have been claimed in the defendant's pleading (^). But the cases as yet (January, 1886) reported, throw but little light upon the section. Service of notice. — As to the service, &c., of the notice under sub-sect. 1, sect. 67 of the Conveyancing Act provides that — " (1) Any notice required or authorized by this act to be served shall be in writing. " (2) Any notice required or authorized by this act to be served on * a lessee or mortgagor shall be [*331] sufficient although only addressed to the lessee or mortgagor by that designation, without his name, or gener- all}^ to the persons interested, without any name, and not- withstanding that any person to be affected by the notice is absent, under disability, unborn, or unascertained. Service of notice. — " (3) Any notice required or author- ized by this act to be served shall be sufficiently served if it is left at the last known place of abode or business in the United Kingdom, of the lessee, lessor, morto-aofee, mortsraofor, or other person to be served, or, in case of a notice required or authorized to be served on a lessee or mortgagor, is affixed or left for him on the land or any house or building com- prised in the lease or mortgage, or in case of a mining lease, is. left for the lessee at the office or counting-house of the mine. " (4) Any notice required or authorized by this act to be served shall also be sufficiently served, if it is sent by post in (r) North London Land Co. v. (ss) Scott v. Matthew Brown & Co., Jaquos, 32 W. R. 283, 49 L. T. 659 51 L. T. 740 (relief refused), (relief granted forfailure to complete (t) Mitchi.son y. Thompson, 1 C. & a house within a given time). E. 72 (relief granted for non-repair, (s) Quilter v. Mapleson, L. R. 9 Q. though premises in very dilapidated B. D. 675, C. A. (relief for non- condition). insurance was granted). 527 *332 DETERMINATION OF TENANCY. [Ch. VIII. S. 6. a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the afore- said place of abode or business, office, or counting-house, and if that letter is not returned through the post office undeliv- ered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered. " (5) This section does not apply to notices served in proceedings in the court." The words " by action or otherivise " seem intended to in- clude a peaceable re-entry without action, and also to pro- long the time within which the lessee may aj^ply to the court to restrain the delivery of the writ of possession into the hands of the sheriff. The words " injunction to restrain " seem to apply to a breach of negative covenants only. (c) Relief against Forfeiture for Non-payment of Rent. The law relating to relief against forfeiture for non-pay- ment of rent is expressly excepted from the operation of the 14th section of the Conveyancing Act by the 8th sub-section. Prior to 4 Geo. 2, c. 28, the tenant might at an indefinite time after he was evicted have filed his bill and been relieved against the effect of the mere non-payment of rent (?<) ; but this statute, which is re-enacted in substance by sect. 210 of the Common Law Procedure Act, 1852, confined the tenant to a period of six months after execution executed, within which he might obtain relief, in order to relieve the landlord from the inconvenience of continuing liable to an uncertainty of possession {x). The 210th section of the Common [*332] Law * Procedure Act, 1852, provided that unless flie tenant should proceed for relief in equity within six months after execution he should be "barred and foreclosed fiom all relief or remedy in law or equity," the 211th that the tenant should not have relief without payment of rent and costs, and the 212th tliat tlie t(!nant might stay proceedings at any time before trial, by paying the rent and costs. («) Bowser v. Colby, 1 Hare, 125. (.r) Doe d. Hitclnns v. Lewi.s, 1 Burr. 019. 628 Bowei vx'fj. Ch. VIII. S. 7.] NOTICE TO QUIT. *332 The Ist section of the Common Law Procedure Act, 1860, 23 & 24 Vict. c. 126, extended these provisions by allowing the court or a judge to give relief in a summary manner either before or after the trial up to and within the six months after execution executed. It has been held that a defendant against whom judgment had been obtained, in an action in which the plaintiff had been deprived of costs, might, under this section, obtain relief after trial upon payment of rent and costs of applica- tion for relief, without being required to pay the costs of the action (z). Sect. 7. — Notice to Quit. (a) Nature and Operation of. Nature of notice to quit. — The notice to quit which it is here proposed to consider is the certain reasonable notice required by law, or by custom, or by special agreement, to enable either the landlord or tenant, or the assignees or rep- resentatives of either of them, ivitliout the consent of the other., to determine a tenancy from year to year, or month to month, &c. The term is also applied to the notice given in exercise of an option to determine a lease, which is consid- ered hereafter (a). Without such notice, or an actual or implied surrender (h') or merger ((?), a tenancy of the above nature would continue in the tenant and his assigns or rep- resentatives ; and the immediate reversion would continue in the landlord and his assigns or representatives (c?), until ex- tinguished by the Statute of Limitations (g). Special stipulations as to notice. — The right to determine a tenancy from year to year by a notice to quit is a necessary incident to such tenancy: a stipulation against any such notice being given by one party or by the other is repug- nant to the nature of the tenancy, and therefore void, and (z) Croft I'. London & County Bank- ((/) Maddon d. Baker v. White, 2 ing Co., 54 L. J., Q. B. 277, C. A. T. R. 159. (a) Post, Sect. 8. (e) 3 & 4 Will. 4, c. 27 ; Doe d. (t) A7ife, Sect. 8. Landsdell v. Gower, 17 Q. B. 589. (c) Ante, Sect. 4, p. 308. 529 *333 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. mere surplusage (/). Thus, an agreement to let at a fixed yearly rental, and not to give notice to quit so long as the rent is paid, constitutes more than a yearly tenancy, [*333] and gives the tenant a right to stay in, so * long as the landlord's interest continues and the tenant pays rent (^g). The tenancy may generally be determined by half- a-year's notice ^ expiring at the end of the first or any subse- quent year of the term (Ji) : but the parties may expressl}- stipulate for a longer or shorter notice to quit than that usually required by law (/) ; or for a notice expiring at some (/) Doe d. Warner v. Browne, 8 Q. B. 957 ; Doe d. Plunier v. Mainby, East, 165. 10 Q. B. 473. ((/) King's Leasehold Estates, Re, (I) Cole Ejec. 31, 32 ; Doe d. L. K., 16 Eq. 521; L. T. 288; 21 W. Pitcher v. Donovan, 1 Taunt. 555; K. 881. . 2 Camp. 78; Doe d. Green v. Baker, (A) Doe d. Clarke v. Smaridge, 7 8 Taunt. 2-il. Doe d. Robinson v. 1 Tenancies from year to year ; notice to terminate. — («) At common law the notice required to terminate such tenancies was six months, Jackson V. Bryan, 1 Johns. (N. Y.) 322, 323, 324; Jackson v. Rogers, 2 Caines' Cas. (N. Y.) 314, 318 (per Kent, J.) ; Witt v. Mayor of N. Y., Robertson (N. Y.) 441; Hanchet v. Whitney, 1 Vt. 311 ; Currier v. Perley, 24 N. H. 219 (per Bell, J.) ; Den v. Blair, 15 N. J. L. 181 ; Den v. Drake, 14 Id. 523 ; Bradley v. Covel, 4 Cow. (N. Y.) 349 ; Prickett v. Ritter, 16 111. 96 (per Scates, J.), and the notice must terminate with the year. Reeder v. Sayre, 70 N. Y. 180, 186 (per Folger, J.) ; Bradley v. Covel, 4 Cow. (N. Y.) 349, 351 (per Woodworth, J.) ; Nowlan v. Trevor, 2 Sweeny (N. Y.) 67,70 (per Monell, J.); Fahnestock V. Faustenauer, 5 S. & R. (Pa.) 174 ; Lesley v. Randolph, 4 Rawle (Pa.) 123, 127 (per Kennedy, J.). (b) Statutory notices. — The common law notice still remains unchanged in several of the states. In several others a notice similar to the common law notice has been expressly required by statute, and in others the common law notice has been superseded by a shorter notice (tliree months, two months, ninety days, sixty days, &c., as the case may be). In Maryland (Rev. Code, Art. 67, Subtitle 7, sec. 1) the required notice is six months ; in Virginia (Code, sec. 2785), tliree months in cities and towns, and six months in tlie country ; in Nova Scotia (Rev. Sts. ch. 125), Quebec (Civil Code, sec. 1657), New Brunswick (Con. Sts. ch. 83, sec. 16), Indiana (Rev. Sts. sec. 5209), Missouri (l{ev. Sts. sec. 3077), Colorado (Gen. Sts. sec. 1504), North Carolina (Code, sec. 1750), and Pennsylvania (Act of Marcli 21, 1772, Purd. Dig. p. 1015), three nu)nths ; in Mississippi (Rev. Code, sec. 1330), two montlis; in Illinois (Sts. of 111. ch. 80, sec. 5), sixty days; in Ore- gon, in tenancies for farming purposes, ninety days; in otlier tenancies, ten days. Many states have no statutory provisions for terminating temmcies from year to year, but leave them to be terniin.'ited as at common law. Con- necticut provides (Gen. Sts. sec. 2967) tluit a hohling over shall not renew a lease. Some of tlie states provide onl}' U)V notice to terminate tenancies at will, and from 7)eriod to period sliorler tiian from yeai" to year. See note, ante, " 'J'he shorter tenancies." 530 Cn. VIII. S. 7.] NOTICE TO QUIT. *333 other period of the tenancy than at the end of tlie first or some other year, ex. gr. at the end of any quarter (/c) ; or at some particular quarter (?) ; or at any time of the year, upon the expiration of a certain specified previous notice (w). But as the power of determining the tenancy at any time of the year is generally attended with inconvenience to one or both parties, the language conferring such power must be clear and explicit (»). Therefore, on a letting from year to year " to quit at a quarter's notice," such notice must expire at the end of the first or some other year of the tenancy, and not at any other part of the year ; such stipulation merely substituting a three months' notice for the usual six months' notice (o). It seems, that where a "six months' notice" on either side is contracted for, a six lunar months' ^ notice will be sufficient (^). Where a tenant is " a?«('rt^s " to be subject Dobell, 1 Q. B. 806 ; Tookcr v. Smith, (w) Doe d. Green v. Baker, 8 Taunt. 1 H. & N. 732; Evans v. Whitting- 244; Doe f/. King r. Grafton, 18 Q. B. stall, 2 F. & F. 175; Kogers v. King- D. 496; 21 L. J., Q. B. 276 ; Bridges ston-upon-Hull Dock Co., 34 L. J., v. Potts, 17 C. B., N. S. 314. Cli. 1G5. (h) Cole Ejec. 31. (!•) Kemp V. Derrett, 3 Camp. 510; (o) Doe d. Pitcher v. Donovan, 1 Rex V. Herstmonceau.x, 7 B. & C. Taunt. 555; 2 Camp. 78; Brown v. 551 ; Collett v. Curling, 10 Q. B. 785; Burtenshaw, 7 D. & R. 603. ' Bird V. Defonville, 2 C. & K. 415, 4l8. (/)) Rogers v. Kingston-upon-Hull (/) Doe d. Rigge v. Bell, 5 T. R. Dock Co., 34 L. J., Ch. 165. 471. 1 Month means calendar month in the United States. — Sheets ?;. Selden's Lessee, 2 Wall. 177, 189, 100; Brewer v. Harris, 5 Gratt. (Va.) 285, 398 ; Strong v. Birchard, 5 Conn. 357, 360 ; Leffingwell v. Pierpoint, 1 Johns. Cas. (N. Y.) 100 ; Hardin v. Major, 4 Bibb (Ky.) 104 ; Pyle v. Maulding, 7 J. J. Marsh. (Ky.) 202 ; Alston v. Alston, 2 Treadw. (S. C. Const.) 604 ; Wil- liamson V. Farrow, 1 Bailey (S. C. Ct. of App.) 611. Contra, Loring v. Hallin,^, 15 Johns. (N. Y.) 119, 120. Exceptional decisions. — It has been held, in one or two cases, to mean lunar month in statutes, Stackhouse v. Halsey, 3 Johns. Ch. (N. Y.) 74 (Kent, Chan., giving the opinion) ; and per Savage, Ch. J., in Parsons v. Chambei-- lain, 4 Wend. (N. Y.) 512, 513; and in several cases to mean calendar only because the language used showed that calendar months were intended. Par- sons V. Chamberlain, 4 Wend. 512, 513 ; Snyder v. Warren, 2 Cow. 518. By the weight of authority the word " month " in statutes, as elsewhere, unexplained, means calendar nnjnth. Hunt v. Holden, 2 Mass. 168, 170; Avery V. Pixley, 4 Id. 460; Kimball v. Lamson, 2 Vt. 138; Churchill v. Merchants' Bank, 19 Pick. (Mass.) 532,535; Commonwealth r. Chandjre, 4 Dall. 143; Brudenell v. Vaux, 2 Id. 302 ; Moore v. Houston, 3 S. & R. (Pa.) 169 ; Payne V. Wallace, 2 A. K. Marsh. (Ky.) 244; Gross v. Fowler, 21 Cal. 392. 631 *334 DETERMINATION OF TENANCY. [Cn. VIII. S. 7. to quit at three montlis' notice," he will be deemed a quar- terly tenant, and the notice to quit must exj^ire with some quarter, and not at any other part of the year (5'). Where premises are let at so much per quarter (not sajdng for what period), that creates a quarterly tenancy, and not a yearly tenancy at a rent payable quarterly (r). So where premises are let not for any definite period, but the tenant is to give up possession at any time on one month's notice, that creates a tenancy from month to month (s). But where premises are let for an indefinite period, at a yearly rent, payable weekl}', with power to determine the tenancy at three months' notice from any quarter day, that creates a yearly tenancy, determinable at the end of any quarter ()*). [*334] The parties to a demise may * expressly stipulate that ill a certain event the tenant may quit without any notice (w). An agreement for a weekly tenancy of a house determinable by a week's notice, accompanied by a memorandum that the tenant might have the house until the landlord required it for the purpose of pulling it down, has been held to be terminable by a week's notice, although the landlord did not require the house for the purpose of pulling it down (a;). Effect of insufficient notice. — An insufficient notice to quit given by the tenant and assented to by the landlord will not determine the tenancy, unless the assent be communicated to the tenant, nor operate as a surrender on the expiration of such notice (?/). A tenancy from year to year created by parol is not determined by a parol licence from the landlord to quit in the middle of a quarter, and the tenant quitting (7) Kemp V. Derrctt, 3 Camp. 510. (u) Retlu-ll r. Rlencowe, .3 M. & G. (r) Wilkinson ;;. lliiil, 3 IJing. N. 110; Cole Ejfc. ;51, 30. C. 508. (r) Ciiosiiiro Linos Committee v. (s) Doe d. Lansdell v. Gowcr, 17 Lewi.s, 50 L. J., Q. B. 120; 44 L. T. Q. B. 580. 293, C. A. (/) Kex V. Inhbts. of Ilerstmon- (//) Doe r/. Iludlestono v. Jolin- ccaux, 7 B. & C. 551; Overseers of stone, 1 M'Ciel. & Y. 141 ; .rolinstonc Wilic-den, app., Overseers of Pad- r. Hudlcstono, 4 B. & C. 022 ; Doe d. dington, resp., 3 B. & S. 503; Guar- Murrell v. Mil ward, .'5 M. & W. .328; dians of Hastings Union r. Guardians Bcsscll r. Landsberg, 7 Q. B. 638. of St. .James, Clerkenwell, 35 L. .1., M. C. G5. 532 Cn. VIII. S. 7.] NOTICE TO QUIT. *335 the premises accordingly, without the hmdlord taking posses- sion (2). An agreement for a new lease upon different terms (not amounting to an actual demise) will not be suf- ficient, without a notice to quit, to determine a previous yearly tenancy (a). Effect of sufficient notice. — Upon the expiration of a notice to quit duly given by either party the tenancy ceases^ and, unless a fresh tenancy be afterwards created, the landlord cannot distrain for subsequent rent, notwithstanding tlie ten- ant continues in possession for a year or more after the expiration of the notice (5). The remedy in such case is by action for use and occupation (c), or for double value or double rent (c?). (b) When necessary. Notice necessary. — A notice to quit is necessary — 1. Where there is some express stipulation on the subject. 2. By local custom. 3. By the common law. Express stipulations. — Where there is any express stipula- tion as to the notice to be given by either party to determine the .tenancy, such notice, whether more or less than that usually required by law, must be given and will be suf- ficient (e). But less than the stipulated notice will be bad (/). Where a six "months'" notice on either side is to be given, it seems that a six lunar ^ months' notice is sufficient (^). * Local custom. — Where there is a special local [*335] custom regulating the notice to be given to deter- mine the tenancy, and there is no express stipulation on the subject, such custom will be deemed part of the contract as an implied term or condition thereof, and notice to quit must (2) Mollett V. Brayne, 2 Camp. 103. (<>) Doc d. Green v. Baker, 8 Taunt. (n) John V. Jenkins, 1 Cr. & M. 281 ; Doe (/. Robinson v. Dobell, 1 Q. 227 ; Jones v. Reynolds, 1 Q. B. 506. B. 806; Cole Ejec. 31, 32. (?)) Alford V. Vickery, Car. & M. (/•) Doe d. Peacock v. Raffan, 6 280. Esp. 4. (c) Chap. 'XlY.,post, (g) Rogers v. Kingston-upon-HuU {d) Chap. XX., post. Dock Co., 34 L. J., Ch. 165. 1 Calendar months in the United States. See note, ante, (a). 633 *335 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. be given accordingly (7t). The custom of the country is not admissible to prove that a notice to quit served on the 3rd of April is a good notice to quit by reason of the tenancy being a Michaelmas tenancy, but it must be proved by direct evi- dence that such is the case (Q. Notice at common law. — Where a tenancy from jear to year is created by express agreement, and there is no special stipulation or local custom providing for the determination of the tenancy, the usual notice to quit required by law, i.e. half-a-year's notice to quit at the end of the first or some other year of the tenancy, must be given (^).^ The same rule applies where a tenancy from year to year is iinplied hy law from the payment and acceptance of rent, or from other circumstances (Z), as where a person enters under a void lease (n). Similarly, where a tenant for a term of years holds over and continues to pay rent as before, which the landlord accepts (o) ; or where a lease becomes void upon the death of the lessor (a tenant for life), and the remainderman (/i) Tyler v. Seed, Skin. 649; Roe (/) Doe d. Wawa v. Horn, 3 M. & d. Henderson v. Charnock, I'eake, 0. W. 333 ; Doe d. Cater v. Somerville, As to proof of custom, see Doe d. G B. & C. 126, 132. Brown v. Wilkinson, Co. Lit. 270 b, (x) Doe v. Bell, 5 T. R. 471. See note (228). ante, 221. As tq whether an entry (/) Hogg V. Norris, 2 F. & F. 246. under an agreement for a lease con- (k) Parker d. Walker v. Constable, stitutes a tenancy from year to j-ear 3 Wils. 2.5; Right d. Flower?-. Darby, only, or gives a title to the lease, see 1 T. R. 159 ; Doe d. Shaw i'. Porter, 3 Walsh v. Lonsdale, 21 Ch. D. 9, and T. R. 13; Doe d. Martin v. Watts, p. 86, ante. 7 T. R. 85; Doe d. Pitcher v. Dono- (o) Hyatt v. Griffiths, 17 Q. B. 570. van, 1 Taunt. 555 ; Goode v. Howell, See ante, 222. 4 M. & W. 198; Smith L. & T. 24, 319 (2nd ed.). 1 Tenancies ; in what part of year determinable. — In some states there arc si)C(:iiil statutory i>r()visioiis fi.\ing7/(e time of i/ car at wiiich tenancies not otlicrwise limited can he terminated. In Iowa tenancies may be terminated March 1, except tenancies on shares and cropping contracts, which expire at harvest, or not later than December 1 (Rev. Code, sec. 201.')) ; in Kansas farming tenancies may be terminated Marcli 1 (Com. Laws, sec. .3209) ; in New York City tenancies, not otlierwise agreed, terminate May 1 {'■) Rev. Sts. Part 2, Tit. 4, sec. 1) ; in New Jersey tenancies for indefinite periods, witli monthly rent, so long as the rent is ])aid cannot be terminated by tiie landlonl until April 1 (.Act of April 14, lb84) ; in Quebec tenancies {without lease) of houses terminate May 1, and of rural estates October 1 (Civil Code, sec. 1657). 534 Cii. VIII. S. 7.] NOTICE TO QUIT. *336 accepts subsequent rent, whereby a new implied tenancy is created (p) ; any such new tenancy will be deemed to have commenced from the same day of the year as the original term, and the notice to quit should be given accordingly ( q). Time of day for quitting. — The tenant is entitled to retain possession till midiiight of the same day of the year on which the tenancy commenced; a notice to quit at noon of such day is bad (/•). Notice under Agricultural Holdings Act. — The common law rule, that in all cases of yearly tenancies, the tenant i.'^ entitled to half-a-year's notice expiring at that period of the year at which the tenancy commenced, is altered in favour of tenants of agricultural or pastoral holdings or market gardens (s) by the * 33rd section of the Agri- [*336] cultural Holdings Act, 1883 (^), which doubles the length of notice required. This section enacts : — " Where a half-year's notice, expiring with a year of tenancy, is by law necessary and sufficient for determination of a tenancy from year to year, in the case of any such tenancy under a con- tract of tenancy made either before or after the commence- ment of the act, a year's notice so expiring shall by virtue of this act be necessary and suiiicient for the same, unless the landlord and tenant of the holdino- bv writing' under their hands, agree that this section shall not apply, in which case a half-year's notice shall continue to be sufficient ; but noth- ing 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." This section applies only to the common case where a half-year's notice is neces- sary b}^ implication of law (^^), and has no application to the case where a half-year's notice, much less where six months' (/)) Doe V. Watts, 2 Esp. 501 ; 7 T. (s) For exact application of the R. 83. See ante, 22-3. Act, see p. 337, post. (7) Doe d. Jordan r. Ward, 1 H. (/) 46 & 47 Vict. c. 01. See this Blac. 96; Doe d. Collins ;■. Weller, 7 act set out at length Appendix A., T. R. 478 ; Humphreys t- . Franks, 18 post. C. B. 323. („) See Right d. Flower r. Darby, (?) Page V. More, 15 Q. B. G84. 1 T. R. 159, and the other cases, ante (Jc^, 635 *337 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. notice (a), is expressly stipulated for (^). Such is the effect of Wilkinson v. Calvert, decided upon precisely similar words in s. 51 of the repealed Agricultural Holdings Act, 1875, and of Barlow v. Teal (z)^ decided upon s. 38 of the Act 1883 in a case where the stipulation in a contract of tenancy made in 1871, was " to hold from year to year, until six months' notice is given in the usual way ; " and in Barlow v. Teal all the members of the Court of Appeal intimated that (as it was put by Brett, M. R.), section 33 "• applies where there is no express stipulation as to the termination of the tenancy, and does not apply where there is au express stipulation." Notice to quit part of holding. — The 41st section of the same act provides that on a tenancy from year to year a notice to quit, which relates to part only of the holding, and would therefore be wholly bad at common law (a), shall be good as to such part if given with a view to the use of land for the erection of labourers' cottages, the providing of gardens for labourers, the planting of trees, the working of coal, "the obtaining of brick earth, gravel or sand," the making of a watercourse or road, or other purposes therein enumer- ated, the tenant to be entitled to a proportionate reduction of rent. The notice must "so state," i.e. must state its pur- pose. The same section provides that "the tenant shall further be entitled at any time within twenty-eujlit days after service of the notice to quit, to serve on the landlord a notice in writing to the effect that he (the tenant) accepts the same as a notice to quit the entire holding, to take effect at the expiration of the then current year of [*337] * tenancy ; and the notice to quit shall have effect accordingl3\" This last provision, which it is purely optional with the tenant to avail liiniself of, seems intended to give him the benefit of giving up the part of the holding to which the notice applies sooner than he would be entitled to do in the ordinary course of things ; for if the tenant (x) Wilkinson v. Calvert, L. R., 3 D. 501, 54 L. J., Q. R. 5(54 ; ?,\ W. R. C. V. 1). 300 ; 47 L. J., C. P. ) Doe d. Shore v. Porter, .3 T. R. Brahason, 2 Lev. 45 ; Jones y. Nixon, 1'5; Doe d. Hull v. Wood, 14 M. & 1 H. & C. 48. W. (!H2 ; Maekay ?•. Mackreth, 4 C^•) Jones V. Nixon, 1 H. & C. 48; Doug. 21.1; 15 Ves. 241 ; Gulliver d. 31 L. J., Ex. 505 ; Brown v. Trumpcr, Tusker r. Burr, 1 W. Blac. 50(5. 26 Beav. 11. (r/) Doe d. Castleton v. Samuel, 5 (I) Doe d. Leicester v. Biggs, 1 Esj). 173. Taunt. ;Jt;7; 2 Id. 109. 588 Cii. VIII. S. 7.] NOTICE TO QUIT. *339 the reversion (r). But in all such cases notice to quit should be given by or to tlie person or persons for the time being legally entitled to the term, or to the reversion, as the case may be (s). Subsequent reversioners. — Where notice to quit is duly given by the landlord, or other person for the time being legally entitled to the reversion, and he afterwards assigns his reversion, the assignee may avail himself of the notice (t}. So the churchwardens and overseers of a parish may avail themselves of a notice to quit duly given by their predeces- sors (w). Notice by tenant binds assignee. — A proper notice to quit given to the tenant or his assignee will operate against any subsequent assignee (.r). (c) When unnecessary/.^ Demise for specific term. — Where the demise or agree- ment specifies the term or event upon which the tenancy is to determine, no notice to quit is necessary (^) ; ^ * as where the demise is for one year (2:) : ^ or for [*339] (r) Birch v. Wright, 1 T. R. 378; (x) Doe d. Castleton v. Samuel, 5 Burrows v. Gradin, 1 D. & L. 213, Esp. 173. 218. (//) Rio-ht d. Flower v. Darby, 1 T. (s) Cole Ejec. 35. R. 162; Id. 54. (t) Doe d. Earl of Egremont v. (z) Cobb v. Stokes, 8 East, 358, Forwood, 3 Q. B. 627. 361 ; Johnstone v. Huddlestone, 4 B. (u)"boe d. Higgs i'. Terry, 4. A. & & C. 937 ; Strickland v. Maxwell, 2 E. 274 ; Doe d. Hobbs v. Cockell, Id. Cr. & M. 539. 478. 1 For some of the many ways of terminating tenancies at will, beside notice, see ante, sec. 1, notes. - Complex tenancies. — A tenancy from year to year may be made to expire without notice at end of a term. Doe d. Parkinson v. Haubtman, Bert. (N. B.) 645 ; Caverhill v. Orvis, 12 C. P. U. C. 392 ; Secor v. Pestana, 37 111. 525; and so may a tenancy at will at end of a definite period (])er Morton, J., in Davis v. Murphy, 126 Mass. 148, 144, and Shaw, C. J., in Elliott V. Stone, 1 Gray (Mass.) 571, 574. See oiite, sec. 1, notes). For instance, a parol lease for a week or a month in Massachusetts (tiiough by statute a ten- ancy at will) expires without notice at the end of the period. In Maine (by Rev. Sts. ch. 94, see. 2) it is otherwise. It is believed such tenancies for fixed periods generally, in the states and provinces, expire without notice. 3 Logan V. Herron, 8 S. & R. (Pa.) 459 ; McCanna v. .Johnston, 19 Pa. St. 434 ; or for a month, Gibbons v. Dayton, 4 Hun (N. Y.) 451 ; Neumeister v. Palmer, 8 Mo. App. 491 ; or for days, McCarthy v. Yale, 39 Cal. 586 ; or to a day certain, Evans v. Hastings, 9 Pa. St. 273 (per Coulter, J.). 539 *339 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. any certain number of years (a) : ^ or till a particular day (6). Agreement for lease for specific term. — Similarly, if a ten- ant enter under an agreement for a lease for seven years, which lease is never executed, at the end of the seven years the tenancy from year to year, created by the payment and acceptance of rent during that period, determines without any notice to quit (c). But if there be an agreement for a lease of tAventy-one years, determinable at the end of the first seven or fourteen years, the tenant cannot quit at the end of ths first seven years without giving any notice ((7). When term limited. — If a term is granted which in the lease is limited by the happening of a certain event, the term will end on the happening of the event without any notice to quit being required.^ Thus where there is a lease or agreement for a lease " during the joint lives of A. and B. ; " upon the death of either of them the term determines without any notice to quit (e) ; and where a house or part of a house is occupied by one of several partners " during the continuance of the partnership ; " upon a dissolution thereof he may be ejected without any notice to quit (/). So where premises are occupied by a servant and his family as part of the remuneration for his services, whenever such service is determined, an ejectment may be maintained against the servant without notice to quit (^). And where an intended («) Messenger v. Armstrong, 1 T. (d) Chapman r. Towner, 6 M. & "R. 54; Doe d. Godsell v. Inglis, 3 W. 100; and sec Brown y. Trumper, Taunt. 54 ; Roberts v. Hay ward, 3 C. 2G Beav. 11. & P. 432. (e) Doe d. Brom field v. Smith, 6 (b) Doe d. Leeson v. Saver, 3 East, 530. Camp. 8. ( /') Doe d. Waitliman v. Miles, 1 (c) Doe d. Tilt v. Stratton, 3 C. & Stark. 181 ; Doe d. Colnaghi v. Bluck, P. 1()4 ; 4 Bing. 44(); Berrey i;. Lind- 8 C. & P. 404. ley, 3 M. & G. 4!)8, 514 ; Doe d. Dav- (;/) Doe d. Hughes v. Corbett, 9 C. enish v. Moffatt, 15 Q. B. 257, 205 ; & P. 4'J4. Tress v. Savage, 4 E. & B. 30. 1 Jackson v. Parkhurst, 5 Johns. 128; Jackson v. M'Leod, 12 Id. 182; Haiixiiurst v. Somers, 38 (^al. 503 ; MacGregor v. Rawle, 57 Pa. St. 184. 2 See II. & N. 050; but see (>n) Cole Ejec. 42; see Forms, Aj)- Doe d. I'enninf^ton v. Tanniere, 12 pendix C, Nos. y, 5. Q. 15. 908. (h) Jones v. Pliipps, infra. (Ii) Hoo d. Dean and C. of Poches- (o) Doe d. Mann v. Walters, 10 B- ter r. Pierce, 2 Camp. 90; Doe d. & C. 026; Doer/. Lyster ?j. Goldwin, Birmint^ham Canal Co. r. Bold, 11 2 Q. B. 148, 146; Doe d. Rhodes r. q. B: 127. Robinson, .'5 Binjr. N. C. 077; Doe ) L. R., 5 H. L. 561 ; 6 Ir., C. L. 677; Haseler i-. Lemoyne, 5 C. B., 188. N. S. 550; Pearse v. Boulter, 2 F. & F. 133. ^ Service of notice. — Notice given to assignee in possession is sufficient, Lloyd V. Cozens, 2 Ashm. (Pa.) 131 ; or to one of two joint tenants, Glenn v. Thompson, 75 Pa. St. 389 ; Grundy v. Martin, 143 Mass. 279 ; or left on prem- ises with wife of tenant, Blish i'. Harlow, 15 Gray (Mass.) 316; Clark v. Keliher, 107 Mass. 406 ; or left at shop with a co-partner who is constituted agent, tenant and wife being out of state. Walker v. Sharpe, 103 Id. 154. In case of a sub-lease, notice is sufficient given to lessee. Lloyd v. Cozens, 2 Ashm. (Pa.) 131, 139 {per King, Pres.) ; Jackson v. Baker, 10 Johns. (N. Y.) 270. 549 *345 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. it need not be directed to him by name (^q). The tenant on being served with the notice should give a similar notice to his subtenant, and will be liable to an ejectment if his sub- tenant hold over (r). In the absence of proof to the contrary, a person who has obtained possession from a tenant will be presumed to be in possession as assignee of the term, and not as a mere subtenant (s). Where on the death of a tenant from year to year his widow remained in possession, and a notice to quit was given to her, this was held sufficient in the absence of any evidence of a probate or letters of administra- tion granted to some other person (^). Where there are two or more joint lessees, a notice to quit given to one of them, even by parol, is sufficient for all (?/). Where a corporation aggregate is the tenant, and a notice to quit is necessary (a;), it should be addressed to the corporation, and not to its officers (?/). To whom, given by tenant. — A notice to quit given by the tenant should be given to his immediate landlord or his assigns, and not to the ground landlord or other person through whom the immediate landlord derives his title (2;). [*345] * If the immediate landlord is dead, or has assigned his reversion, the notice should be given to the person or persons for the time being legally entitled to the immediate reversion^ ex. gr. to the heir, executor, administrator, devisee or assignee of such landlord, as the case may be (zz). Or it may be given to the attorney or agent duly authorized in that behalf of such landlord, or other person so entitled as afore- (7) Doe d. Matthewson i". 'Wright- W. Crick, 5 Esp. 190 (the marginal man, 4 Ksp. 5. note of this case is incorrect) ; Doe (r) Roe V. Wiggs, 2 Bos. & P., N. d. Ld. Brailford v. Watkins, 7 East, R. 330. 551. (.s) Doe d. Morris v. Williams, 6 (.r) Ante, 30R. B. & C. 41 ; Roe d. Blair v. Street, 2 (.'/) Doe d. L.l. Carlisle v. Wood A. & E. 329, 331; Hindley v. Rick- man, 8 East, 228. erhy, 5 Esp. 4. (r) Woods v. Hyde, 31 L. J., Ch. (0 liees d. Mcars v. Perrot, 4 C. 295; 10 W. R. 339. & 1'. 2:!0. {zz) Woods )•. Hyde, 31 L. J., Ch. (h; Doc d. Ld. Macartney v. J. and 295 ; 10 W. R. 339. 550 Ch. VIII. S. 7.] NOTICE TO QUIT. *345 said (a) : but not to a mere collector of rents who has no actual authority to receive such notices (6). (e) Form and Service of. Parol notice generally sufficient. — A parol notice to quit is generally sufficient, whether given by or on behalf of the landlord (c), or the tenant (d^ ; even when given on behalf of a corporation aggregate by their steward or agent (e), if any notice be necessary in such case (/). A good parol notice will not be waived by a subsequent insufficient notice in writing (^). Notice in writing. — Generally speaking, notice to quit is given in writing (A).^ No particular form is necessary ; but if given by or on behalf of the landlord, it must in substance and effect request the tenant, or other the person for the time being legally entitled to the term (not a mere sub- tenant (0), to quit and deliver up possession of all the demised premises at the proper time : if given by or on behalf of the tenant, it must in substance and effect inform the landlord, or other the person or persons for the time being legally entitled to the immediate reversion, that the tenant (o) Doe d. Prior v. Ongley, 10 C. (/) Cole Ejec. 39 ; Finlay r. Bristol B. 25 (last point) ; Papillon i\ Brun- and Exeter R. Co., 7 Exch. 409; ton, 5 H. &, N. 518 ; 29 L. J., Ex. 265. Copper Miners' Co. v. Fox, 16 Q. B. (6) Pearse !•. Boulter, 2 F.&F. 133. 229; Doe d. Pennington v. Tanien-, (c) Doe d. Ld. Macartney v. Crick, 12 Q. B. 998 ; Pennington v. Cardale, 5 Esp. 190 ; 2 C. & K. 420. 3 H. & N. 650. (rf) Timmins v. Rawlinson, 3 Burr. (9) Doe d. Ld. Macartney v. Crick, 1603 ; 1 W. Black. 533; Bird v. Dev- 5 Esp. 196. onvielle, 2 C. & K. 415. (/<) See the forms, post, Appendix (e) Roc d. Dean and C. of Roches- C, Nos. 1-7. ter V. Pierce, 2 Camp. 96 ; 7 Q. B. 577. (/) Ante, 344 (w). 1 Must notice be in -writing. — At common law it need not be. Wilgus V. Whiteliead, 89 Pa. St. 131, 134 {per Trunkey, J.); Thamm i'. Hamberg, 2 Brews. (Pa.) 528, 530 {per Allison, P. J.). In many of the states it is required to be. Massachusetts (Pub. Sts. ch. 121, sec. 12) ; Maine (Rev. Sts. ch. 94, sec. 2) ; New York (3 Rev. Sts. Part 2, Tit. 4, sec. 1) ; West Virginia (Code, ch. 93, sec. 5) ; Indiana (Rev. Sts. sec. 5207) ; Michigan (Sts. sec. 5774) ; Minnesota (Sts. ch. 76, sec. 40) ; Kansas (Comp. Laws, sec. 3207) ; Oregon (Laws, sec. 3520), &c. Oregon (Laws, sec. 3520) &c. Service of a written notice may be proved by parol, Chung Yovv v. Hop Chong, 11 Or. 551 *346 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. will quit find deliver up possession of all the demised prem- ises ^ at the proper time (A"). Certainty of notice. — A notice to quit must be clear and certain, so as to bind the party who gives it, and to enable the party to whom it is given to act upon it at the time when he ought to receive it(Z). And in conformity with the inter- pretation usually given to a dictum of Lord ]\Ianstield (in a case in which the court held the particular notice before them to be good)(7?i), it was also laid down in prior editions [*346] of this work, and * in the text books generally (w), that a notice to be good must not be optional, i.e. must not give the noticee an oj^tion to enter into a new contract of tenancy. But in Ahearn v. Bellman (o) the majority of the Court of Appeal held that a notice might be optional, and yet good. In that case the tenant held at 150Z. a year, and the notice was this: — "I hereby give you notice to quit and deliver up possession of the shop, premises, and show rooms situate and being 20, Moss Street, Liverpool, and now held by you as tenant from me, on or before the 1st day of INIay, 1878. And I hereby further give you notice that should you retain possession of the premises after the date before mentioned., the annual rental of the premises notv held by you from me will be 160?., payable quarterly in advanced The court (Brett, L. J., dissenting) held that the words in italics did not invalidate the notice to quit. "It has been said, and (k) Cole Ejec. 40,47. ant, 2n(l ed. 326; Adams on Eject- (Z) See Doe (/. Lyster v. Goldwin, 2 ment, 95 ; Cole on Ejectment, 40. Q. B. 143. (o) L. R., 4 Ex. D. 201 ; 48 L. J. (w) Doe d. Matthews v. Jackson, 1 Ex. 081 ; 40 L. T. 711 ; 27 W. R. 928 Dougl. 175. The words were, "I —C. A., reversing the ruling of Lopes, desire you to quit, or I shall insist on J., at Liverpool Assizes; Roberts v. double rent." Hayward, 3 C. & P. 432. (n) See Smith's Landlord and Ten- 1 Accuracy. —The nolice is sufficiently accurate if it identify the prem- ises without specifically describing them, Dimmett v. Applitoii, 20 Neb. 208; and even thougli tiicrc be errors in the descri{)tioii if not caiiulalcd to mislead, King 1'. Connolly, 44 Cal. 23(5 ; Congdon v. Brown, 7 K. L 19. In Grant v. Marshall, 12 Neb. 488, 480, it was held that " lot 15, block 42, city of Lincoln," was not sufflt^ient, but that case is overruled by Cummings v. Winters, 19 Id. 719. In the latter case " The N. E. quarter of section 28, T. 7, R. 7," was held sufTicicnt. 552 Ch. VIII. S. 7.] NOTICE TO QUIT. *347 truly said," observed Cotton, L. J., " that a notice to deter- mine the tenancy must be clear and unambiguous; but that does not at all mean that a notice otherwise sufficient is made insufficient by its being accompanied by something else." A notice given by the grantor of a licence to mine, that unless the grantee kept a certain number of miners at work, as he was bound to do, the grantor tvould re-enter, is not a good notice to avoid the licence, which the grantor was entitled to give (^). A notice desiring the tenant to " quit the premises which you hold under me, your term therein having long since expired," does not recognize a subsisting tenancy from year to year, subsequent to the term, but is a mere demand of possession (g). A notice to quit and give up possession, but not stating to whom, is sufficient (r). Must extend to all the premises. — The notice must extend to all the demised premises, and not to a part only, otherwise it will be bad (.s-). But the court will if possible construe the notice as a good notice for the whole, rather than as a bad notice for part only. Therefore a notice to quit " Town Barton, &c." is sufficient for other lands having distinct names held therewith (f). So a notice to quit " all that messuage, tenement or dwell-house, farm, lands and prem- ises, with the appurtenances, which you rent of me in the parish of S.," is sufficient to include the great and small tithes held therewith under a parol demise (w). A joint tenant or tenant in common may give notice to quit all his part or * share of the demised premises (a;). [*347] Misdescriptions, -when immaterial. — A mere misde- scription of the property in a notice to quit is not fatal if the tenant be not misled by it. Thus where the premises were fully and accurately described, except that they were called " The Waterman's Arms " instead of " The Bricklayer's (p) Muskett V. Hill, 5 Bing. N. C. East. 498; Doe d. Rodd v. Archer, 14 694. East, 244. (q) Doe d. Godsell v. Inglis, 3 (t) Doe d. Rodd v. Archer, 14 East, Taunt. 54. 244. (r) Doe d. Bailey v. Foster, 3 C. B. («) Doe d. Morgan v. Church, 3 215. Camp. 71. (s) Right d. Fisher v. Cuthell, 5 (a:) Ante, 343. 553 *347 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. Arms" (_y), and where the premises were described as situate in the parish of D. (instead of the parish of H.), in the county of York (s), both these notices were held sufficient. When must expire. — The notice must require the tenant to quit, or give notice of his intention to quit, at the jyroper time. This is the point with respect to which mistakes are most frequently made ; and such mistakes are usually fatal to the validity of the notice (a). In the case of an implied tenancy from year to year, if the holding be agricultural, a year's notice expiring with a year of tenancy must be given, unless the Agricultural Holdings Act, 1883, has been ex- cluded by mutual agreement in writing (U). Where that act does not apply, or has been excluded, the law requires half-a-year's notice to quit at the end of the first- or some other year of the tenancy, and not at any other period ((?), whether the demised premises consist of land or houses (c?). Mining Lease. — In a mining lease, where the lessees are to be at liberty to determine it at any time upon a six months' notice, such notice may expire at any time and not merely at the end of the 3'ear (^). "Weekly, &c. tenancies. — The peculiar case of weekly, &c. tenancies has been already dealt with (/). Customary half-year's notice. — If the tenancy commence on one of the ordinary feast days,^ a notice on or before one (i/) Doe d. Cox V. , 4 Esp. (c) Parker d. Walker v. Constable, 185. 3 Wils. 25 ; Ki. Williams, 7 C. & P. Lit. 270 b, note (228); Right d. 322 ; Doe d. Murrell v. Milward, 3 M. Flower v. Darby, 1 T. R. 102. & W. 328 ; Goode v. llowells, 4 M. & (0 Bridges v. Potts, 17 C. B., N. S. W. 198. 314; .33 L. J., C. P. 338. (i) See seet. 33 of that act, ante, (/) Ante, p. 339. 335. ' Time of service. — Notice served Dccenilier 2U is (in Pennsylvania, at leastj in season to teriiiiiuite tenancy commencing March 25. Ogden v. Dully, 654 Cu. VIII. S. 7.] ■ NOTICE TO QUIT. *348 of the feast days in the earlier half of the tenancy to quit on the feast day at the conclusion of the tenancy is sufficient and necessary, although the period between the two feast days should exceed or fall short of the number of days wluch constitute a half-year (^). Thus a notice served on or before Michaelmas-day to quit on the following Lady-day (from which day the tenancy commenced) is sufficient (A), though there are fewer than 183 days * between the [*348] 28th September and the 25th March. So a notice to quit on the 24th of June served on the preceding Christmas- day is sufficient (z) ; but a notice served on the 26th of March to quit on the 29th of September then next is insuffi- cient (^), although there are more than 183 days between the 26th of March and the 29th of September. Where the tenancy commenced from some day in the year other than one of the usual quarter days, a full half-year's notice (183 days), expiring on such day, must be given (Z). But where a " six months' " notice on either side is expressly agreed for, it seems that a six lunar months' notice is sufficient (w). New style or old style. — A notice to quit at "" Michaelmas next " prima facie means Michaelmas, new style (29th of September) ; but it will be sufficient for a tenancy com- (g) Morgan v. Da vies, L. R., 3 C. (?) Doe d. Buddie v. Lines, 11 Q. P. b. 260; 26 W. E. 816; Doe v. B. 402. Kightley, 7 T. R. 63; Howard v. (k) Morgan v. Davies, 3 C. P. D. Wenisley, 6 Esp. 53; Smith L. & T. 360; 26 W. R. 816. 319 (2nd ed.). (/) Doe d. Spicer v. Lea, 11 East, (/i) Roe d. Durant v. Doe, 6 Bing. 312; Mills v. Goff, 14 M. & W. 72; 2 574; Doe d. Matthewson v. Wright- D. & L. 23; Doe d. Cornwall v. man, 4 Esp. 5 ; Doe d. Harrop ?;. Matthews, 11 C. B. 675. Green, Id. 198, 199 ; Doe d. Lil. Brad- (m) Rogers v. Kingston-upon-Hull ford V. Watkins, 7 East, 551 ; Papillon Dock Co., 34 L. J., Ch. 765. V. Brunton, 5 H. & N. 518; 29 L. J., .Ex. 265. 1 Leg. Gaz. Rep. 4, and 64 Pa. St. 240, 241, 242. Agnew, J., said the year expired at midnight, Marcli 24 ; and, counting December 25 as an entire day, tliree entire months had then passed. Notice served February 12 is in season to terminate tenancy commencing May 12. McGowen v. Sennett, 1 Brews. (Pa.) 397, 398. In reckoning time from a certain day, ordinarily that day is excluded in tlie reckoning. 1 Wash, on Real Prop. sec. 292 ; Atkins v. Sleeper, 7 Allen (Mass.) 487. The contrari/ case of Marys v. Anderson, 2 Grant's Cas. (Pa.) 446, would probably not now be followed in Pennsylvania, as it is in principle overthrown by Cronielien c. Brink, 29 Pa. St. 522. 555 *349 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. mencing at Michaelmas, old style (lltli of October), because the tenant cannot have been misled or prejudiced by it (w). But a notice to quit " on the 11th of October, Old Michael- mas-day," is bad, if the tenancy commenced at New Michael- mas (o). Upon a written agreement to demise from the following " Lady-day," a notice to quit on the 6th of April is good, upon parol evidence that b}^ '' Lady-day " the par- ties meant Old Lady-day : such evidence is admissible Avhere the written agreement is not under seal (7^). A notice to quit on " Lady-day " is good either for the New or Old Lady- day, according to the holding, if served in due time (^q). A notice to quit " on the 25th day of March or the 6th day of April next," if served in sufficient time, is good for New or Old Lady-day, according as the tenancy actually com- menced (r). Must expire on last day of some year. — Generally speaking, a notice to quit should expire on the last day of some year of the tenancy, and not on the same day on which the tenancy commenced (s). Thus, upon a tenancy from Lady-day, the notice should expire on Lady-day, and not on the 26th of March (0- Not "at noon." — A notice to quit on the proper day at twelve o'clock at noon is bad (ii). Need not mention particular day. — The notice need not men- tion the particular day on which the tenant is required to quit. Thus a notice to quit " at the expiration of the current year of the tenancy which shall expire next after the [*349] end of *one half-year from the date hereof" is suffi- cient (x). A notice on 22nd March to quit "at the {ii) Furloy d. Mayor, &c. of Can- (?) Doe d. Matthewson v. Wright- terbury v. Wood, 1 Esp. 198; Doe \ Doe d. King v. Grafton, 18 (h) Doe d. Eyre v. Lamhley, 2 Esp. (i H. 490 ; 21 L. .1., Q. B. 27(5. 02!"); but see Doe d. Murrell v. Mil- (m) Doc d. Cornwall v. Matthews, ward, .1 M. & W. 3.31. 1 1 C. B. G75. (/) Mattiiewson v. Wrightman, 4 (») Doe ) ; bat if the judge assumes the fact either way, and decides accordingly, that the notice to quit is or is not sufficient, the party against whom he so decides should expressly desire him to leave the question of fact to the jury, otherwise it will be taken, upon any application for a new trial, &c., that he acquiesced in the fact assumed by the judge as the ground of his decision ( q). Increase of rent. — No new tenancy is created by a mere agreement for an increase of rent *in the [*351] middle of the year of a tenancy, and a notice to quit after the receipt of the increased rent must expire at the time when the tenant originally entered (/•). Where tenant holds over. — Generally speaking, an implied tenancy from year to year, created by the payment and acceptance of rent after the end or determination of a pre- vious term, will be deemed to have commenced at the same time of the year as the original term, and notice to quit should be given accordingly (s). And this rule prevails even where the original term did not cease at the same time of the year as it commenced, as where premises were originally de- mised for five and a half years, and an implied tenancy from (o) Doe d. Dafjpet v. Snowden, 2 d. Holcombe v. Johnson, 6 Esp. 10 ; W. Blac. 1224; Doe d. Strickland v. Crowley v. Vitey, 7 Ex. 319; 21 L. J., Spence, 6 East, 120 ; Doe d. Ld. Brad- Ex. 136. ford V. Watkins, 7 East, 551 ; Doe d. (s) Roe d. Jordan v. Ward, 1 H. Davenport v. Rhodes, 11 M. & W. Blac. 96; Doe d. Martin ;•. Watts, 7 002, 003. T. R. 83; Doe d. Collins v. Weller, 7 {})) Smith L. &T. 322 (2nd ed.). T. R. 478; Doe f/. Castleton r. Samuel, {) : so where premises are taken under an agreement, by which the tenant "is always to quit at three months' notice," the notice must expire either on the same day of the year the tenancy commenced, or on one of the three other corresponding quarter days (c). Weekly tenancies. — It appears not to have been express!}^ decided what notice to quit is necessary in the case of a weekly tenancy. The authorities on the point have already been examined ((7). Date of notice. — The day or time mentioned in the notice to quit should always be correct with reference to the date of the notice. Any mistake in this respect is generally fatal to the validity of the notice (^). But a notice dated on the 27th, and served on the 28th September^ requiring a tenant to quit "at Ladij-day next, or at the end of his current year," was held in one case to mean a six months' and not a two days' notice to quit (/) ; but this decision has been since overruled in a case where a notice was held bad which was served on the 21st October, to quit "on the 13th of May next, or upon such other day as the current year for which you now hold will expire," the holding being one from a day in November (//). A notice served on the 17th June to quit "on the 11th October now next ensuing, or such other day and time as your said tenancy may expire on," is not a good notice for the Michaelmas in the following year (A). A notice delivered to a tenant at 3Ilchaelmas. 1795, to quit " at Lady-day which will be in the year 1795," was held to be a good notice to quit at Lady-day, 1796 ; for the intention was clear, and 1795 was to be rejected as an impossible year (i). So w^here a yearly tenancy expired in February, and in October, 1833, a notice was given to quit " at the expiration of half a year from the deliver}^ of this notice, or at such other time or times as your present year's (/>) Doe d. Pitcher r. Donovan, 1 Ciilliford, 4 D. & R. 249; Doe d. Earl Taunt. 555; 2 Camp. 78. of Es^remont v. Forwood, .3 Q. B. 027. (c) Kemp V. Derrett, 3 Camp. 510. (7) Doe d. Maj'or, &.c of Richmond (r/) ^H/e, 339 ; see especially Jones r. MorphPtt, 7 Q. B. 577. V. Mills, 31 L. J., C. P. 60. (/*) Mills r. Goff, 14 M. & W. 72. (e) Cole Ejec. 52. (0 Doe d. Duke of Bedford i'. (/')Doe d. Ld. Huntingtower v. Kightley, 7 T. R. 03. 661 *oo3 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. holding of or in the said messuage, &c. shall expire after the expiration of half a year from the delivery of this notice," it was held a good notice for February, 1835 (^). To •whom notice should be directed and given. — It is not necessary that a notice to quit should be directed to the tenant in possession, if proved to have been delivered [*353] to him as tenant * at the proper time (Z) : and if a no- tice to quit be directed to the tenant by a wrong Chris- tian name, and he keeps it without objection, it is a waiver of the misdirection (»?) : and where two tenants hold premises in common, a notice to quit to one of them is sufficient to determine the tenancy (w) : at least it is evidence that the notice reached the other tenant who lived elsewhere (o). Where a tenant from year to year sublet part of the prem- ises, and then gave up to his landlord the part remaining in his own possession, the landlord cannot entitle himself to recover against the sublessee, no notice to quit having been given to the lessee, but only a notice to the sublessee, and that by the landlord, in his own name, and not in tlie name of the first lessee (p). In ejectment against S. and F., wliere it is shown that B., not a party to the cause, cam^s into pos- session of the premises under an unperformed contract of sale, and that S. and F. held under him, notice to quit served upon S. and F. is sufficient {q}. Attestation of notice. ^ A notice to quit need not be attested. If attested it may be proved without calling the attesting witness (r) ; but this was formerly otherwise (.«). It may be proved by an examined copy oi- duplicate, without any notice to produce the original Q'). When and how served. — The notice must generally be (k) Doc d. Williams v. Smith, 5 (p) Pleasant d. Ilayton v. Benson, A. & E. 350; Doe d. Kinderslcy v. 14 East, 2;]4. Hughes, 7 M. & W. 139. (7) Roe d. Blair v. Street, 2 A. &E. (I) Doe d. Mattliewson r. Wrifrht- 329. man, 4 Esp. 5. (r) C. L. P. Act, 1851, s. 20. (w) Doe V. Spiller, 6 Esp. 70, (.s) Doe d. Sykes v. Diirnford, 2 M. (n) Doe d. Ld. Macartney r. Criik, & S. 62; Poole r. Wavren, 8 A. & E. f> Esp. urn. 682. (o) Doe d. Ld. Bradford v. Wat- (t) Doe ) Croft i\ Lumley, 5 E. &B.648; went, G T. R. 219; Croft v. Lutnley, G II. L. Cas. G72. & E. &, B. 048 ; G II. L. Ca.s. 072. ' Receipt of rent accrued at expiration of notice, even after hrinj^infj ejectment, docs not waive notice. Laxton v. Rosenberg, 11 Ont. 100. In Kilzpatrick v. Childs, 2 lirews. (I'a.) 30.'), it was said that wltethcr tlie^ receipt of rent waived the notice depended on the quo animo, and hehl that an unauthorized receipt of rent hy lessor's agent was not u waiver. 6GG Ch. VIII. S. 7.] NOTICE TO QUIT. *356 of the notice, but is a question of intention which ought to be left to the juiy ( East, 237. 280; Williams v. Stiven, 9 Q. B. 14. 1 A new notice, inconsistent with former notice, waives it. O'Neill i'. Cahill, 2 Brews. (Pa.) 357. 2 Simple failure to expel a tenant after notice, even though for more than a year, is not a waiver. Boggs v. Black, 1 Binn. (Pa.) 333. 667 "357 DETERMINATION OF TENANCY. [Ch. VIII. S. 7. reserved quarterly, and tlie landlord expressed neither his assent nor dissent to admit it, and took the rent up to the time when his tenant quitted ; it was construed to be such an acquiescence as amounted to presumptive evidence that the parties intended to dispense with the notice, and [*357] was therefore deemed a waiver of it (/r). * If at the end of the year (wliere there has been a tenancy from year to year) the landlord accept another person as his tenant in the room of the former tenant, without any surren- der in writing, such acceptance is a dispensation of the notice to quit (Z). Where a landlord of premises about to sell them, gave his tenant notice to quit on the 11th October, 1806, but promised not to turn him out unless they were sold; and not being sold till February, 1807, the tenant refused, on demand, to deliver up possession ; on ejectment brought, it was held that the promise (which was performed) was no waiver of the notice, as it did not operate as a licence to be on the premises, otherwise than subject to the landlord's right of acting on such notice, if necessary ; and, therefore, that the tenant not having delivered up possession on de- mand after a sale, was a trespasser from the expiration of the notice to quit (on'). Where a landlord gave his tenants a good parol notice to quit at old Michaelmas, but at the same time said that if it would be any convenience to them he would permit them to occupy till Christmas, and that they should pay no rent ; and one of the tenants expressed himself well satisfied and grateful for the indulgence ; after which a written notice was served on the tenants to quit at Christmas : it was held, that an ejectment commenced after Christmas might be maintained upon the parol notice to quit at old Michaelmas (n). Where a tenant gave notice of his intention to quit at Michaelmas, but before that time offered to continue tenant at a reduced rent, which the landlord agreed to, provided he could not find another tenant at a better i-ent before the 12tli day of August then next; but (k) Sliirlcy v. Newman, ] Ksp. 200. (m) WIiitoncriM/. IJoult r.Symoiids, (I) Sparrow v. Ilawkes, 2 Esp. 10 East, !•'!, K!. 005. («) Doi- d. Lil. Macartiioy v. Crick, 5 Esp. 11)0. 6G8 Ch.VIII. S.8.] OPTION TO DETERMINE LEASE. *3o8 before that day the tenant refused to permit a third person, who contemplated taking tlie farm, to go over it : it was held, that the coruUtional agreement for a new tenancy was thereby determined, and that the iiotice to quit at Michael- mas remained in force and would sui)port an ejectment (o). Sect. 8. — JExercise of Option to determine Lease. Form of proviso. — A lease is often made for a term of years subject to a proviso or power therein contained, ena- bling either (or one) of the parties to determine it at an earlier period by notice, &c. For instance, the lease may be for twenty-one years, determinable at the end of the first seven or fourteen years by either party (or by the lessee) upon *giving [twelve] calendar months' pre- [*358] vious notice, &c. (^). Sometimes a proviso of this sort is framed very strictly as regards the tenant by making it a condition precedent on his part not only to give the notice, but also to pay and perform all rent and. his cove- nants. The consequence of this is, that in case of any breach of covenant the lessee is unable to tletermine the lease at the end of the lirst seven or fourteen years, in pursuance of the proviso : his power to do so being conditional only, and the condition not having been performed (^). Such conditions should be carefully considered, on behalf of the tenant, before the lease is executed. Form of notice. -- Where a power is given to a party to determine a lease on giving a notice in ivritiwj^ he cannot determine it by giving a parol notice (r). The notice need not refer to the power (s), but must end with the first seven or fourteen years, or other specified period, according to the terms of the proviso, and not at any other time (0, and must (o) Doe d. Marquis of Hertford v. Toinkinson, 1 II. & N. 195 ; and corn- Hunt, 1 M. & W. G90. pare post. Chap. IX., Sect. 2. {])) See form of proviso, post, Ap- (r) Legg (/. Scott y. Benion, Willes, pendix B., Sect. 13. 43. (c/) Friar v. Grey (in error), 5 (s) Giddens ;•. Dodd, 3 Drew. 485 ; Exch. 584, 597; 4 H. L. Cas. 565; 25 L. J., Cli. 451. Friar v. Grey, 15 Q. B. 891; Porter (0 Cadby v. Martinez, 11 A. & E. V. Shepherd, G T. R. 605 ; Jervis v. 720 ; 3 P. & D. 386 ; Bird v. Baker, 1 509 *359 DETEKMINATION OF TENANCY. [Cii. VIII. S. 8. be to quit all the demised premises and not part only (u). The Lxndlord may however reserve to himself the right to determine the lease by notice as to all or any part of the land which he may want for building purposes (x) ; and after the stipulated notice has been given, if possession be refused, the landlord may maintain ejectment (y). Option -whether -writh lessor or lessee. — If a lease be granted for " seven, fourteen or twenty -one years," the lessee only has the option of determining it at the end of the first seven or fourteen years (z). But a demise for twenty-one years " determinable nevertheless in seven or fourteen years if the said parties hereto shall so think fit," is determinable only by the consent of both the parties, although it may have been their intention to give the option to either of them (a). Notice by executors, &c. — Where the demise was for twenty-one years, and it was stipulated that if either party should die before the end of the said term, then the heirs, executors, &c., of the person so dying should give twelve months' notice to quit, &c., it was held, that the lease could only be determined by twelve months' notice given by the representatives of the party dying before the end of the term ; and consequently, that such notice given by [*359] the lessor to the representatives of the lessee *(who died during the the term) did not determine the lease (/>). A proviso in a lease for twenty-one years, that if either of the parties shall be desirous to determine it in seven or fourteen years it shall be lawful for either of them, his executors or administrators^ so to do, upon twelve months' notice to the other of them, his heirs, executors or adminis- trators, extends by reasonable intendment to the devisee of E. & E. 12 ; 28 L. J., Q. B. 7 ; Jones (^) Doc d. Wilson r. Abel, 2 M. & V. Nixon, 1 H. & C. 48; 31 L. J., S. 541. Ex. 505; Sliarp v. Milligiin, 22 Ik'uv. (:) Dann v. Spurrier, 3 Bos. & V. 612. 3t1(), 442; Doe d. Webb v. Dixon, 9 (h) Doe d. Rodd v. Archer, 14 East, Enst, 1.') ; Eallor v. Robins, ](! Ir. Ch. 245, 248. See form of notice, ]>ost, R. 422. Appendix C, No. 8. («) Fowell v. Frantz, 3 II. & C. 458 ; (x) See form of proviso. Appendix 34 L. J., Ex. 6. B., Setrt. 23 ; also form of notice to (/)) Legg d. Scott v. Benion, Willes, take part, Id., Sect. 24. 43. 570 Cu. VIII. S. 8.] OPTION TO DETERMINE LEASE. *359 the lessor, he being entitled to the rent and reversion (c). Where a lease for twenty-one years contained a proviso that in case either the landlord or tenant, or their respective heirs, executors or administrators, wished to determine it at the end of the first fourteen years, and should give six months' notice in writing under his or their respective hands, the term should cease : it was held, that a notice to quit signed by ttvo onl>/ of three executors of the lessor, to whom he had bequeathed the freeholds as joint tenants, was not good under the proviso, although -such notice purported to be given on behalf of all the executors — the proviso requir- ing the notice to be given " under the respective hands " of all of them (c^). Landlord's option — delivery of notice, •when tenant absconds. — If the option be in the landlord, and the proviso for notice should stipulate, not, as is usual and pro]3er, that it should be left on the demised premises, but that it should be delivered to the tenant, great difficulties may arise. In Hogg V. Brooks (e), the proviso was that the lease might be determined by the landlord or his assigns " delivering to the tenant or his assigns six months' previous notice in writing." The tenant mortgaged the premises by way of sub-lease, and disappeared. A notice was sent to his last known address, and also to the mortgagee, and was also left on the demised premises, which the mortgagee had sublet. It was ruled by Mathew, J., that these notices were ineffectual to support an action of ejectment by the assignee of the reversion against the tenant of the mortgagee, on the ground that the lease provided for direct service upon the lessee or his assigns, and the mortgagee was onl}^ a subtenant, and this ruling was confirmed by the Court of Appeal (e). No bail in ejectment after such notice. — When a lease has (c) Roe d. Bamford v. Hayley, 12 (p) Uogg v. Brooks, L. R. 15 Q. B. East, 464. 1). 250, C. A., affirming Mathow, J. ; {(l) Right d. Fisher v. Ciithell, 5 14Q. B.D. 475. Perhaps this decision East, 491; 2 Smitii, 83; recognized may be open to queston on tlie ground and distinguislied in Doe d. Aslin v. that a mortgagee by demise is not only Summersett, 1 B. & Ad. 135, 141. teclmieally an " assign," but also prac- See also Turner v. Hardy, 9 M. & W. tically an assignee. 770. 671 *360 DETERMINATION OF TENANCY. [Ch. VIII. S. 9. been determined by notice pursuant to a proviso in that behalf, and the hindlord brings ejectment, he cannot compel the tenant to find sureties to pay the costs and damages, pursuant to 15 &> 16 Vict. c. 73, s. 213 (/) ; nor can any accruing or subsequent rent be recovered after any such determination ((/). [*360] * Sect. 9. — Disclaimer.'^ Parol by lessee for years,, insufficient. — It is a general rule that the tenant commits a forfeiture if he disclaim and deny his landlord's title (A). But a denial by parol of a landlord's title does not cause a forfeiture of a lease for a term certain, whether under seal or not (z) ; nor will payment to a third person of the rent reserved by such lease (A;). Where a tenant for five years delivered up possession of the demised premises and of the lease in fraud of his landlord, to a per- son claiming under a hostile title, with the intention of ena- bling him to set up such title and not to hold under the lease : it Avas held, that the term was thereby forfeited (Z). But that case turned upon the fraud of the tenant, and can only be sustained on that ground. All the other cases in the books of forfeiture by disclaimer have been by matter of record (w). Any person who obtains possession from the tenant or subtenant, by an arrangement made with him, whether by collusion or otherwise, but without any deed of assignment or sub-lease, \vill not be permitted to defend such possession by proof of a title aliunde, but will be estopped from denying the landlord's title in like manner as the tenant (/) Doc (I. Cardigan v. Roo, 1 D, & E. 427 ; Kecs d. Powell v. King, & K. 540 ; Doe d. Cundey v. Sliarpley, Forrest, 11) ; Cole Ejee. 42. 15 M. & W. 558. As to the evidence (h) Doe d. Dillon v. Parker, Gow, in sucli action, see Cole Ejee. ;5!)(». 180; Doe d. Williams v. Pasquali, (r/) Furnivali v. (Jrove, 8 C. B. N. Peake, I'M',. S. 4!)(;; .10 L. J., C. P. 8. (/) Doe d. Kllenbrock v. Flynn, 1 (/() Bac.Abr. tit. Leases and Terms C, M. & K. i;57. for Years (T. 2). (w) Per Lord Denman, C. J., in (0 Doe d. Graves v. Wells, 10 A. Gregg v. Wells, 10 A. & E. 427. * See a7itc, sec. 5 (a), note, " Disavowal of lessor's title. 572 Cii. VIII. S. 9.] DISCLAIMER. *361 or subtenant would have l)een had he remained in posses- sion (w). Disclaimer by tenant from year to year. — A discLaimer by a tenant from year to year of the title of his landlord, or of the person for the time being entitled to the immediate reversion as assignee, heir, devisee, executor or administrator of the landlord, will operate an a waiver hy the tenant of the usual notice to quit, and will in effect determine the tenancy at the election of the landlord or other person so entitled (p) ; for " a notice to quit is only requisite where a tenancy is admitted on both sides, and if a defendant denies the tenancy there can be no necessity to end that which he says has no existence " (^). What amounts to disclaimer. — It is sometimes a nice ques- tion whether what has taken place does or does not amount to a disclaimer of the tenancy. It is difficult, if not imj)os- sible, to reconcile all the cases on this point. But the * result of them seems to be, that if a tenant from [*361] year to year use any expressions which, being reason- ably construed with reference to the circumstances under which they were uttered or written, amount to a denial of the existence of any tenancy as between him and the claim- ant, such expressions amount to a disclaimer, and render a notice to quit unnecessary (r). On the other hand, if the expressions used cannot under the circumstances be reason- ably construed to amount to such a denial, they will not operate as a disclaimer nor render a notice to quit unneces- sary (s). In order to make either a verbal or written dis- (n) Doe cl. Buller v. Mills, 2 A. & vert r. Frowd, 4 B'wg. 560; Doe d. E. 17 ; Doe d. Haden v. Burton, 9 C. Phillips v. RoUinsis, 4 C. B. 188, 200; & P. 254 ; Doe d. Thomas v. Shad- Doe d. Jefferies r. Wiiittick, Gow, 195. well, 7 Dowl. 527 ; Cole Ejee. 215, (r) Cole Ejec. 41 ; Doe d. Calvert 216. V. Frowd, 4 Bing. 560; Doe d. Grubb (p) Doe (/. Bennett v. Long, 9 C. & v. Grubb, 10 B. & C. 816 ; Doe d. Ben- P. 77:5; Doe d. Grubb v. Grubb, 10 B. nett v. Long, 9 C. & P. 773; Doe d. &C.810; Doe d. Phillips v. Rollins, 4 Hughes v. Bucknell, 8 C. iS; P. 566; C. B. 188; Doe d. Davies v. Evans, Doe d. Whiteliead v. Pittnian, 2 N. 9 M. & W. 48 ; Doe d. Landsell v. & M. 673 ; Doe d. Davies v. Evans, 9 Gower, 17 Q. B. 589; Vivian v. Moat, M. & W. 48 ; Doe d. Phillips v. Rol- L. R. 16 Ch. D. 730; 50 L.J. Ch. 331 ; lings, 4 C. B. 188, 200; Doe d. Land- 44 L. T. 210 ; 29 W. R. 504, per Fry, J. sell v. Gower, 17 Q. B. 589. (g) Per Best, C. J., in Doe d. Cal- (s) Cole Ejec. 41 ; Doc d. Lewis v. 673 *362 DETERMINATION OF TENANCY. [Cii. VIII. S. 9. claimer sufficient, it must amount to a direct repudiation of the relation of landlord and tenant, or to a distinct claim to hold possession of the estate upon a ground wholly inconsistent with that relation, which by necessary implication is a repu- diation of it (i). "-A disclaimer, as the word imports, must be a renunciation by the party of his character of tenant, either by setting up a title in another or by claiming title in himself («<) ; and it was held to be a disclaimer where the tenant wrote a letter disputing the landlord's right to raise the rent, but offering to pay a customary rent, as being all that the tenant was liable to pay (x-). But a very slight matter, not really intended as a repudiation, will sometimes be construed as a repudiation, in order to defeat an objection of a technical nature (^). Refusal to pay rent. — A refusal to pay rent to a devisee in a will which is contested is not a disavowal of the title of such devisee. But where the defendant held premises under a tenant for life, on whose death possession was claimed and rent demanded by the heir at law of the devisor ; whereupon the defendant wrote to the attorney of the heir at law, stat- ing that he held as tenant to J. S. (the husband of the tenant for Hfe) in right of his wife ; that he had never considered the claimant as the landlord of the house ; and that he should l)e ready to pay the arrears to any person who should be proved to be heir at law ; but that he must decline taking upon liimsclf to decide upon the claim made on him without more satisfactory proof in a legal manner ; it was held, that this letter amounted to a disclaimer of the title of the heir at law, and that he might maintain ejectment against [*362] the tenant without * giving him a previous notice to quit (z). A remainderman, after the death of tenant Earl Cawdor, 1 C, M. & R. ;]98 ; Doe (») Prr 'I'indal, C. J., in Doe d. (I. Williams r. Cooper, 1 M. & G. loo; Williams v. Cooiht, 1 M. & G. 1:^5; 1 Seott, N. H. :}(); Doe fl. Williams (•. Jones v. Mills, 10 C. B., N. S. 788, J'as<|uali, I'eake, 2.V.) (.'Inl ed.) ; Hunt IW), HOI ; Vivian r. Moat, 44 L. T. r. AIIkooiI, 10 C. H., N. S. 2'y.l ; Jones 210. V. Mills, Id. 788. (x) Vivian v. Moat, tihi supra. (I) Doe <■/. Grey v. Stanion, 1 M. & (*/) Doe i) Hogg i-. Midland K. Co., L. 1?., (n) Maddy v. Hale, 45 L. J., Ch. 4 Eq. 310, 313 ; 30 L. J., Ch. 440. 791. 582 Cii. IX. S. 2.] FORFEITURE OF RIGHT TO RENEW. *368 lease to renew upon the falling in " of one life for ever," can- not be extended to the case where two are suffered to fall in, although a compensation be offered (z). Where A. and B. covenanted in a lease for sixty-one years, that at any time within one year after the expiration of twenty years of that term, upon the request of the lessee and his paying 6Z. to the lessors they would execute another lease of the premises for the further term of twenty years, to commence from the expiration of the said term of sixty-one years, &c., and so in like manner at the end of every twenty years during the said term of sixty-one years, for the like consideration and upon the like request, would execute another lease for the further term of twenty years, &c., to commence at the expiration of the term then last before granted, &c. ; it was held, that, under this covenant, the lessee could not claim a further term at the end of the last term of twenty years in the lease, where he had omitted to claim a further term at the end of the first and second twenty years in the lease (a). Where a lease renewable for ever had expired by the drop- ping of the lives, so that, in fact, only a tenancy from year to year existed; but the owner in fee of the land, the tenants, and their subtenants, had all been acting for years on the terms of the lease, which was at length dul}^ renewed : held, that no one of them could subsequently set up in * equity claims adverse to the several characters [*368] they bore under such lease and the sub-lease (5). Non-performance of covenants. — Where the lessee has not performed his covenants to repair and insure, the court will not decree a specific performance of a perpetual covenant to renew "provided the rent should have been j)aid and the covenants kept " (c). So where the covenant was to renew at the end of the term " if it should not be sooner determined by the lessee's acts or defaults " (f?). The covenant to renew in case the lessee's covenants are duly performed is construed strictly against the lessee, and will not be specifi- (z) 3 Bro. C. C. 529. (c) Job v. Banister, 2 Kay & J. 374 ; («) Rubery v. Jervoise, 1 T. R. 229. 26 L. J., Ch. 125. (6) ArchboUl v. Scully, 9 H. L. Cas. {d) Thompson r\ Guyon, 5 Sim. 360. 65 ; cited 2 K. & J. 381. 583 *368 RENEWAL OF LEASES. [Ch. IX. S. 2. cally enforced if the lessor have a right of action for the breach of covenant to repair, although the want of repair be but small. If there be any repairs wanted at all, the lessee should have them done before applying to the court. This was held in Finch v. Underwood (e). In Bastin v. Bid- well (/), the same strictness was observed. There the cove- nants were by the lessee to paint inside and outside at cer- tain fixed periods, and by the lessor that the lessee should be entitled, " on giving six months' notice before the expiration of the term," to have a further lease " upon the lessee pay- ing the rent and performing and observing the covenants of this present lease." Neither when the six months' notice ■was given nor when it expired had the requisite painting been completed. Kay, J., held that the performance of the covenant to paint was a condition precedent to the right of renewal, but left the point open whether the condition would have been complied with if the painting had been completed at the time that the notice was given. One of two lessees has no single right of renewal (^^). Where there was a lease for twenty-one years at 1?. rent within covenant to the tenant to renew from twenty-one years to twenty-one years, to make up ninety-nine years ; and at the exj^iration of the first term an arrear of rent being due, and no a})plication being made for a renewal, the lessor brought an ejectment and obtained judgment and possession ; on a bill filed in Chancery, a renewal was decreed, on payment of the rent in arrear and interest ; the delay being accounted for, and there being no neglect on the part of the lessee, or prejudice to the lessor (/i). When option not determined. — A. agreed to let premises to B. for three j^ears, and at the expiration of that term to grant him a lease for an extended term. A. died, and three years having expired B. continued to hold on under A.'s (e) Finch j-. Undcrwoorl, L. R., 2 (h) T?awston v. Bentlcy, 4 Rro. C. Ch. I). 310; 46 L. J., Ch. r)22; 34 L. P. 4lf>; Statliam i-. Liverpool Docks T. 770 (C. A.). Trustees, 3 Y. & J. 505; Hunter v. (/) Bastin v. 15i(hv(ll, L. R, 18 Earl of Hopctoun, 13 L. T., N. S. 130 Ch." D. 238 ; 44 L. T. 742. (II. L.). (j/) Finch V. Underwood, supra, 684 Cii. IX. S. 4.] KENEWAL BY TRUSTEES, ETC. *369 executors for four years without asking for a lease. He then required a lease : * held, that B.'s option had [*369] not determined, and that he was entitled to the ex- tension of the term (/).^ Sect. 3. — Renewal by 3Iinors, Lunatics and Married Women. Renewal in the case of minors, &c. — Where guardians of minors, married women and infants are concerned, and a re- newal of leases is required, existing leases may be surren- dered and new leases granted by direction of the Chancery Division of the High Court (k).. The Lunacy Regulation Act, 1853 (16 & 17 Vict. c. 70), contains detailed provisions for renewal to the committee of a lunatic tenant (T) and by the committee of a lunatic landlord (w). Where a person bound by covenant to renew a lease if required " at the cost and charges in all things " of the lessee, subsequently devised the land in strict settlement, and died pending the arrange- ments for a renewal, leaving the first person entitled to an estate of inheritance under his will an infant, so that it was necessary to institute a suit in Chancery to obtain a renewal of the lease, it was held, that the cost of the suit must be paid out of the estate of the covenantor, because it had been rendered necessary by his own act done subsequently to en- tering into the covenant (n). Sect. 4. — Reneival hy Trustees^ <|*c., in their own Names. Renewal by trustees. — A lease renewed by a trustee or ex- ecutor in his own name, even in the absence of fraud, and (0 Moss V. Barton, 35 Beav. 197 ; (/) Sect. 118. L. R., 1 Eq. 474; and see Buckland (w) Sect. 134. V. Papillon, L. R., 2 Ch. Ap. 67 ; 36 (n) Wortham v. Ld. Dacre, 2 Kay L. J., Ch. 81. & J. 437. {k) 11 Geo. 4 & 1 Will. 4, c. 65, ss. 16, 17 ; ante, 36. 1 Extension privileges. — These differ from covenants of renewal in that no formal renewal is necessary. The tenant manifests his election by simply remaining, or otherwise signifies it. Kramer v. Cook, 7 Gray (Mass.) 550 ; Delashman v. Berry, 20 Mich. 292, 298; Sweetser v. McKenney, 65 Me. 225; HoUey v. Young, m Id. 520. 585 *370 RENEWAL OF LEASES. [Ch. IX. S. 4. upon the refusal of the lessor to grant a new lease to the cestui que trust, will be ordered to be held in trust for the person entitled to the old lease (o). The same rule applies to an executor de son tort renewing a lease in his own name (jo). Where a trustee obtains a new lease which comprises not only the premises in the original lease, but also additional lands, the trusts will not attach upon the additional lands (j). The ground of decreeing re- newals by trustees and executors to enure to the [*370] benefit of cestui que trusts is * public policy, to prevent persons in such situations from acting so as to take a benefit to themselves (r). By agents. — A person acting as agent, or in any similar capacity for a person having an interest in a lease, cannot renew it for his own benefit (s). By tenant for life. — If a person having a limited interest in a renewable lease, as a tenant for life, renews it in his own name, he will be held a trustee for those entitled in remainder to the old lease Q}. By a person jointly interested. — If one of several persons jointly interested in a lease renew it in his own name he will hold in trust for the others according to their respective shares (ii). And if a person jointly interested with an infant renew, and the renewed lease turn out not to be beneficial, the person renewing must sustain the loss ; if beneficial, the infant can claim his share of the benefit to be derived from it (it). By a partner. — If a partner renew a lease of the partner- ship premises in his own name and on his own account he will be held a trustee of it for the firm (a:). (o) Keech v. Sandford, Select Cas. 352; Blewettw.Millett.TBro.T. CHGT. Ch. 61; Fitzgil)l)on v. Seanlan, I (s) White & Tudor, L. C. 41 ('iml. Dow. 201 (after twenty year.s) ; Mill ed.). w. Mill, 3 II. L. Cas. 828; Cooper v. (I) Keech r. Sandford, Wliite & Phihl.s, L. R., 2 II. L. Cas. 140; Tudor, 41. In PiilUips r. IMiiilips, 54 White i;. Tudor, L. C. .30, .37 (2nd ed.). L. .J., Ch. 94.3, a tenant for life wlio (/<) Mulraney v. Dillon, 1 Ball & had twice renewed, and then pur- B. 400; Griffin c. (jriUlu, 1 Sch. & (;hasod the reversion, was held to Lef. .352. hold the fee thus acquired in trust (7) Acheson v. Fair, .3 Dru. & W. for the remaindennen. 612 ; 2 Conn. & Law. 208. (11) Id. .30. (r; Griffin v. Griffin, 1 Sch. & Lef. (r) Id. 40; Clegg v. Edmondson, 8 58G Cii. IX. S. 4.] RENEWAL BY TRUSTEES, ETC. *371 By a mortgagee. — If a mortgagee renew a lease in his own name the renewal is deemed to he for the benefit of the mortgagor, paying the mortgagee his charges (y/) ; nor will the case be altered by the expiration of the lease before renewal (z). By a mortgagor. — On the other hand, if a lessee mortgage leaseholds, and afterwards obtain a new lease in his own name, the new lease will be held a graft on the old one for the benefit of the mortgagee (a}. By owner of incumbered lease. — Upon the same principle, if a person entitled to a lease subject to debts, legacies or annuities, renews in his own name, the incumbrances will remain a charge upon the renewed lease (6). Against volunteers. — The same remedies which may be had against trustees, executors, and persons with limited interests renewing leases in their own names, may also be had against volunteers claiming through them (c). Purchasers with notice. — And against purchasers from them with notice express or implied (c). But the cestui que trust may be barred by acquiescence and lapse of time (c). Not against a quasi tenant in tail of leaseholds. — A quasi tenant in tail of leaseholds being the absolute owner of them is not barred by the same equities as persons having merely limited interests (cT). Nor against a stranger. — Where a stranger obtains a renewal of a lease, or a reversionary lease, the old tenant has no equity against him (e) ; nor, it seems, has * a [*371] lessee any equity against his sublessee who obtains a renewal from the head landlord without consulting him (/). Sale of right of renewal. — If a person having a right of re- newal sells such right, the money produced by the sale will De Gex, M. & G. 787 ; Tudor's L. C (h) White & Tudor L. C. 41 (2nd Merc. L. 359 (2nd ed.). ed.). {y) White & Tudor L. C. 40 (2nd (c) Id. 42. ed.). {(1) Blake v. Blake, 1 Cox, 266. (2) Id. 40 ; Rakestraw v. Brewer, (e) White & Tudor L. C. 44 (2nd 2 P. Wms. 510; Nesbitt v. Treden- ed.). nick, 1 Ball & B. 29. (/) Maunsell v. O'Brien, 1 Jones (a) Smith v. Chichester, 1 Conn. & (Ir. Ex.) 170. Law. 486. 587 *371 RENEWAL OF LEASES. [Ch. IX. S. 5. be affected with the same trusts as the leaseholds, if renewed, would have been (^). Nature of relief in equity. — A trustee who has renewed will be directed to assign the lease, free from incumbrances, ex- cept, as it seems, any lease made by him bona fide at the best rent (7i) ; and he must account also for the mesne rents and profits which he may have received (/), notwithstanding the lease had expired before the action was brought (/c). But where a tenant for life has renewed, the account will com- mence only from his decease (Q. On the other hand, the person who has renewed the lease will be entitled to be in- demnified against the covenants he may have entered into with the lessor (w), and he will have a lien upon the estate for the costs and expenses of renewing the lease, with inter- est (n), and for the expenses of lasting improvements (o), but not for any improvements adopted as a mere matter of taste, or as matter of personal convenience (p) ; at the same time there may be many charges in the nature of waste, and as to deterioration, which must be set off against anything found due in respect of improvements (|>). So also will a tenant for life have a lien for such proportion of the fine upon renewal as ought to be borne by the remainderman (5-). Sect. 5. — Renewal without Surrender of Sub-leases. Renewal in case of sub-lease. — By 4 Geo. 2, C. 28, S. 6, after reciting " that many persons hold considerable estates by leases for lives or j^ears, and lease out the same in parcels to several under-tenants ; and many of those leases cannot by law be renewed without the surrender of all the under-leases derived out of the same, so that it is in the power of any such under-tenants to prevent or delay the renewal of the (.7) Wliite & Tudor L. C. 41 ; Owen (m) Kcooli v. Sarulford, Select Cas. V. William.s, Ambler, 7.34. Ch. (11 ; Mill v. Mill, •> II. L. Cas. 828 ; (A) Id. 41; Bowles v. Stewart, 1 White & Tudor L. C. .30; Geddings Sch. & Lef. 2.30. r. Gcddiufrs, .3 Huss. 241. ((■) Id. 41. (») White & Tudor L. C. 41, 42. (/.) Eyre v. Dolphin, 2 Hall & B. (<>) Id. 42. 200. {]>) Mill V. iNIill, .3 II. L. Cas. 809. (/) Geddings v. Geddings, 3 Huss. (7) White & Tudor L. C 42. 241. 688 Ch. IX. S. 5.] RENEWAL WITHOUT SURRENDER. *372 principal lease by refusing to surrender tlieir under-leases, notwithstanding they have covenanted so to do, to the great prejudice of their immediate landlords the first lessees ; " it is enacted, " that in case any lease shall be duly surrendered in order to be renewed, and a new lease made and * executed by the chief landlord or landlords, the [*372] same new lease shall, witliout a surrender of all or any the under-leases, be as good and valid to all intents and purposes as if all the under-leases derived thereout had been likewise surrendered at or before the taking of such new lease ; and all and every person and persons in whom any estate for life or lives, or for years, shall from time to time be vested by virtue of such new lease, and his, her and their executors and administrators, shall be entitled to the rents, covenants and duties, and have like remedy for recovery thereof ; and the under-lessees shall hold and enjoy the mes- suages, lands and tenements in the respective under-leases comprised as if the original leases, out of which the respective under-leases are derived, had been still kept on foot and con- tinued ; and the chief landlord and landlords shall have and be entitled to such and the same remedy by distress or entry in and upon the messuages, &c., for the rents and duties re- served by such new lease, so far as the same exceed not the rents and duties reserved in the lease out of which such under-lease was derived, as they would have had in case such former lease had been still continued, or as they would have had in case the respective under-leases had been re- newed under such new principal lease." Tlie effect of this enactment, while it gives a lessee the riglit to surrender notwithstanding his contracts with his sub-lessee, leaves untouched the sub-contract, though it is merely an agreement for a sub-lease ; and the effect of a new demise after the surrender for the residue of the original term is to make tlie new lessee the assignee of the reversion of the terms created by the surrenderor (r). Substituted reversion on leases. — By 8 & 9 Vict. C. 106, S. 9, "when the reversion expectant on a lease made either (?•) Cousins V. Phillips, 3 H. & C. r. Marclietti, 1 B. & Ad. 715; Woot- 892; 35 L. J., Ex. 84; Doe d. Palk ley v. Gregory, 2 Y. & J. 536. 589 *373 RENEWAL OF LEASES. [Ch. IX. S. 5. before or after the passing of this act, of any tenements or hereditaments of any tenure, shall after the said first day of October, 1845, be surrendered or merge, the estate which shall for the time being confer as against the tenant under the same lease the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, he deemed the reversion expectant on the same lease." The object of this enactment was to do away with the rule that the covenants of and remedies against the lessee, and the obligations on the lessor, being incident to the immediate reversion, cease as regards the land on the merger of that reversion in another estate (s). Such rule was altogether technical, and generally productive of in- justice. [*373] * "Tenant right of renewal." — It has long been an established practice to consider those who are in the possession of lands under leases for lives or years, particularly from the crown, colleges, &c., as having an interest beyond the subsisting term : and this interest is usually denominated " the tenant right of renewal," which though not any certain or even contingent estate, there being no means of com- pelling a renewal, yet is so adverted to in all transactions relative to leasehold property, that it influences the price in sales, and is often an inducement to accept of it in mort- gages and settlements. Purchase of reversion by assignee of mortgagor of term. — Where a lease from a dean and cliapter was mortgaged, and the mortgagor's interest assigned to a person who afterwards bought the reversion, and borrowed money on the security of such reversion, it was held that such person, upon the Ecclesiastical Commissioners refusing to renew, held the fee simple upon the expiration of tlie lease subject to the mort- gage of the lease, so that the lender o i the security of the (s) Webb V. Russc-Il, 3 T. R. 303; r. Earolay, 7 IMng. 74r^; Thorn y. Stokes V. Russell, 3 T. R. 078 ; Wool- Woolcombe, 3 «. & Ailol. 680. ley V. Gregory, 2 Y. & J. 630 ; Burton 590 Ch. IX. S. 6.] EXERCISE OF OPTION TO PUKCHASE. *374 reversion was not entitled to any prior lien in respect of his advance (t). Sect. 6. — Exercise of Option to purchase. A lease sometimes contains a clause enabling the tenant, upon giving certain notice to the landlord, to purchase the reversion.^ Such a clause is always for the interest of the tenant, as it binds him to nothing, and allows him the ad- vantage of a trial of the demised premises. A form is given hereafter (it). Time of the essence. — Time has been held to be of the essence of a stipulation that the lessee may purchase (x). Executor receives purchase-money. — The purchase-money goes to the lessor's personal representatives, if the option be exercised after the lessor's death (?/) ; and on the death of the lessee, the option of purchase goes to the personal repre- sentative of the lessee (z). Sub-lease with option, not grantable by executor. — We have already seen that it is ultra vires, and a breach of trust, for an executor or administrator to grant a sub-lease with an option of purchase to be exercised by the sublessee at a price fixed at the time of the grant of the sub-lease (a). * Insurance money. — Where the landlord cove- [*374] nanted to insure, and the tenant had the option to (t*) Leigh V. Burrell, 33 W. R. 578. cise of option, see Reynard v. Ar- (m) See post. Appendix B., Sect. 7, nold, L. R., 10 Ch. 386. and see also Dav. Free, Vol. V., p. (//) See Weeding v. Weeding, 1 J. 157. "Lease to Builder's Nominee & H. 424 ; Prideaux, 45. of First-Class House in London," (s) Adams and Kensington Vestry, Prideaux Free., Vol. II., p. 44. in re, L. R., 27 Cli. D. 394; 54 L. J., (.r) Lord Ranelagh v. Melton, 2 Dr. Ch. 87 ; 51 L. T. 382 ; 32 W. R. 883 & Sm. 278. And see the cases cited (C. A.). ante, 108. As to reinstating property (a) 1 L. R., 16 Ch. D. 236 ; and out of insurance money after exer- ante, 49. 1 Sometimes lessee has an option, Buckwalter v. Klein, 2 Am. Law Record, 347 ; Langford v. Selmes, 3 Kay & Johns. 220; and sometimes himself cove- nants to purchase, Stewart v. L. I. R. R. Co., 102 N. Y. 001 ; Bostwick v. Frankfield, 74 Id. 207. A covenant, in six years' lease of water, reserving right to sell at end of two, giving lessee first refusal, is not broken by sale subject to lessee's right to use water for entire six years. Blanchard v. Ames, GO N. H. 404. 591 *374 RENEWAL OF LEASES. [Ch. IX. S. 6. purchase, and before the time for exercising the option ex- pired the demised premises were burnt, the landlord receiv- ing the insurance money ; it was held that the tenant, upon exercising the option, could not sustain a claim to the in- surance money as part of his purchase (b) (h) Edwards v. West, L. R., 7 Ch. 481 ; 26 W. R. 507, distinguishing D. 858; 47 L. J., Ch. 463 ; 38 L. T. Reynard v. Arnold, L. R., 10 Ch. 386. 592 * CHAPTER X. [*375] RENT. SECT. PAGE 1. Different kinds of Rent . . 375 2. llescrvations of Kent . . . o79 (a) Mode of Reservation . 379 (b) Construction of Reserva- tions 382 (c) To whom reserved . . 384 (d) Sums in gross, quasi Rent 386 (e) In Lease of Settled Land 387 3. Penalty or, liquidated Dam- 390 SECT. PAGE 4. When Rent is due .... 394 5. Manner, &c. of payment . . 39(i 0. Apportionment of Rent . . 400 (a) In respect of Estate . . 400 (b) In respect of Time . . 403 7. Continuance of Liability in case of Fire, &c. . . . 407 8. Stipulation for Abatement in case of Fire, &c 410 Sect. 1. — Different kinds of Rent. Definition of rent. — Rent (redclitus) is a retribution or com- pensation for the lands demised. It is defined to be a certain profit issuing yearly out of lands and tenements corporeal : and may be regarded as of a twofold nature : — first, as some- thing issuing out of the land, as a compensation for the possession during the term ; and, secondly, as an acknowl- edgment made by the tenant to the lord of his fealty or tenure (a). Need not be in money, but must be certain, and issue from thing demised. — Rent must always be a profit ; but there is no occasion for it to be, as it usually is, a sum of money ; ^ (a) Bradby, 24; 2 Blac. Com. 41 ; Co. Lit. 142 a; Gilb. Rents, 9 ; Smith L. & T. Ill (2nd ed.). 1 Rent may be payable in money, Irving v. Thomas, 18 Me, 418 ; grain, Boyd V. McCombs, 4 Fa. St. 146 ; cotton, McDougal v. Sanders, 75 Ga. 140 ; DuVdin V. Hill, Id. 228; Wadley v. Williams, Id. 272; Bridgers v. Dill, 97 N. C. 222; hoard, Baker v. Adams, 5 Cush. (Mass.) 99; support, Shouse v. Krusor, 24 Mo. App. 279 ; Roberts v. Sims, 64 Miss. 597 ; taxes, Roberts >;. Sims, 64 INIiss. 597 ; valuable improvements. Doe d. Macqueen v. Hunter, 1 Kerr's (N. B.) 518, &c., &c. ' In Van Rensselaer v. Jewett, 2 N. Y. 141, the rent reserved was eighteen 593 *376 KENT. [Ch.X. S. 1. for spurs, capons, horses, corn, and other matters, may be, and oecasionall}" are, rendered by way of rent (b) : it may also consist in services and manual operations ; as to plough so many acres of ground, and the Hke ; which services, in the eye of the law, are pro tits (e). This profit must also be certain, or capable of being reduced to a certainty by either party, and must issue out of the thing granted, and not be part of the land or thing itself, wherein it differs from an exception in the grant, which is always of part of the thing granted (tZ). Royalty. — But a royalty payable to a landlord upon the bricks which are made out of a brickfield is a rent, althougli it is not paid for the produce of the land, which is periodically renewed, but for portions of the land itself, which is gradually exhausted by the working (e). [*376] * Incorporeal hereditaments. — The lessee of tithes, advoAvsons or any incorporeal hereditaments, is liable to an action for the gross sum or sums agreed upon for the use and enjoyment but not for "rent"(/). "Standings" for machinery. — Where the Owner of a factory let " standings *' in some of its rooms for lace-machines, he himself supplying the steam power by which they were put in motion ; it was held, that there was no demise of the room, and consequently that the weekly payments reserved could not be distrained for, as rent(jg^. But Avhere A. let to B. a (fc) 1 Inst. 142 a. . 148 (team work) ; Smith L. & T. Ill, As to corn rent, see 881, pout. 112 (2nd ed.). (c) Doe d. Edney v. Bcnliam, 7 Q. (d) Smith L. & T. 112; Bac. Abr. B. 970 ((.leaninpr church, and ringing Rent (A.). church hell); Doe d. Robinson v. (e) Reg. i^. Wcstbrook,10 Q. B. 178. Hinde, 2 Moo. & R. 441 (keeping up And see Daniel v. Gracie, Q. B. a grindstone ruled with doubt not to 145; post, 349. be rent); Duke of Mnrlborougli v. (/) Co. Lit. 47 a ; Gilb. Rents, 24. Osborn, 5 B. & S. (57 ; •.).) L. J., Q. B. (q) Hancock v. Austin, 14 C. B., N. S. r,:]4. bushels of wlieat, four fat hens, nnd one day's service with carriage and horses. In Fiske v. Kniniinghain Man. Co., 14 Pick. (Mass.) 491, no rent was reserved in lease of mill, but lessee engaged to manufacture goods, at a fixed price, for lessor. A reservation of rent is not essential to a lease. Failing v. Schcnck, 3 Hill (N. Y.) ;M4 ; State i;. Page, 1 Speer's (S. C.) 408, 429 (/)rr O'Neall, J.) ; Jack- son i;. Wheeler, Johns. (N. Y.; 272 ; 1 Waslibiirnc on Real Property, sec. 292. As to leases on shares, see ante, p. 20.3, note. 594 Ch. X. S. 1.] DIFFERENT KINDS OF RENT. *370 defined portion of a room in a factory, with steam-power for working lace-machines belonging to B., at a certain sum per annum, payable quarterly, a deduction to be allowed in the event of hindrances in the supply of power beyond seven days in each quarter; this was held a sufficient demise to entitle A. to distrain (A). Rent-service. — There are at common law three sorts of rents: — rent-service, rent-charge and rent-seek («). Rent- service was so called because it had some corporeal service incident to it, as, at the least, fealty (/c). Every copyhold rent(Oi and every rent reserved on a lease, is a rent- service (m). Rent-charge. — A rent-charge is where land is charged with a rent by deed or will ivith poiver to distrain for the same, but the owner of the rent has no reversion in the land: as where a person conveys to another land in fee-simple, reserv- ing a certain rent payable thereout, with a clause of distress, that if the rent be in arrear or behind for a specified number of days it shall be lawful to distrain for the same. In such case the land is liable to the distress, not of common right, but by virtue of the clause in the deed; and therefore it is called a rent-charge, because in this manner the land is charged with a distress for the payment of it (w). Fee-farm rent. — A fee-farm rent is a rent-charge reserved on a grant in fee ; the name is founded on the perpetuity of the rent or service, and not on the amount (o). Rent-seek. — Rent-seck (redditus-siccus), or barren rent, is in effect nothing more than a rent reserved by deed or will, but without any clause of distress ; and differs from a rent- charge only in being reserved without a clause of distress (jt?). (A) Selby V. Greaves, L. R., 3 C. P. (n) Co. Lit. 143 b ; Gilb. Rents, 17, 594; 37 L. J., C. P. 251. And see .38; Bradbury v. Wright, 2 Doug. Smith V. Egginton, 43 L. J., C. P. 628; Smith L. & T. 113, 116 (2nd 140; L. R., 9 C. P. 145, 30 L. T. 521. ed.). (0 Bac. Abr. Rent (A.) ; Smith L. (o) Co. Lit. 143 b, n. (5) ; Gov- & T. 112, 114 C2nd ed.). ernors of Christ's Hospital v. Harriki, {k) Co. Lit. 87 b; Gilb. Rents, 9. 2 M. & G. 713, n.; Smith L. & T. 114 (/) Laugher v. Humphrey, Cro. (2nd ed.). Eliz. 524. (jp) Gilb. Rents, 38. (m) Smith L. & T. 112. 595 *377 RENT. [Ch. X. S. 1. A right to distrain for rent-seek, however, " as in the case of rents reserved upon lease," and also for rent of assize [*377] and * chief rents, is given by the statute 4 Geo. 2, c. 28, s. 5, which applies to all rents "duly answered or paid for the space of three years within the space of twenty years " before that session of parliament, " or should be thereafter created." The three years mentioned in this section need not be consecutive (^q), and a fee-farm rent may be distrained for if brought within the section (r). Rents of assize, chief-rents and quit-rents. — Rents of assize are the certain established rent of the freeholders and ancient copyholders of a manor, and which cannot be departed from: those of the freeholders are frequently called chief-rents, and both sorts are indifferently denominated quit-rents, because thereby the tenant goes quit and free of all other services (s). Payment of an unvaried rent for a long series of years to the lord of a manor is evidence only of a title to the rent (which is presumed to be a quit-rent), but not to the land in respect of which the rent is paid (i() ; but in Weller V. Stone (w), the payment of an "encroachment rent" of 4s. 106?. since 1811, the land having been dealt with as held in fee simple and built upon since 1805, was held to be evi- dence of a tenancy from year to year only, so that the plaintiff recovered the land in an action brought in 1878 upon a half- year's notice to quit; and it was further held that the defendant was not entitled to equitable relief on the ground of his predecessors having built to the knowledge of the pred- ecessors of the plaintiff. For such relief to be grantable, the tenant must either be in possession under a mistaken belief of title, which the reversioner must have known of and stood by, or the tenant must have laid out money upon the faith of an expectation, created or encouraged by the reversioner, of a lease (a;). (7) Musgravo v. Ernorson, 10 Q. B. 173: here the rents had been 2s. and •326. 4s. ti(L for thirty-nine yt') Co. I.it. 47, 142 a; Gill). Rents, (.s) Gilb. Keiits, 85; Tanfield v. 26. Rogers, Cro. Eliz. 341. (V) Ante, IGl. 600 Ch. X. S. 2.] RESERVATIONS OF RENTS. *381 whole demise is void (^). But in an action for rent upon an indenture of demise, a plea of the defendant that prior to the making of the demise the plaintiff had demised two roods, part of the demised premises, to A., which demise to A. was still in force, whereby the defendant was kept out of pos- session of that part of the demised premises, was held no answer to the claim for the entire rent reserved. This was because the demise to the defendant, which was under seal, operated as a lease in possession of all that part of the lands of which the lessor had the possession at the time of the demise, and as a lease of the reversion, with the rent inci- dent thereto, of that part of the lands of which the lessor had not the possession, and thereby conveyed to the defend- ant the whole interest in respect of which the entire rent was reserved (?t). Reservatiozi on specified days. — In early times it was much the practice to reserve the rent j^ayable on two alternate days, as on the usual feasts or days of payment, or within a certain number of days afterwards (a;). But this being found * to be attended with serious inconven- [*381] iences (?/), rent is now generally reserved on a day certain, with a proviso for re-entry on non-payment within a specified number of days after the day appointed. Rent in advance. — If rent is intended to be paid in ad- vance (2'), the reservation should be clearly expressed. Corn-rent. — A restriction occurs with regard to college leases, created by statute 18 Eliz. c. 6 (^a), by which it is directed that one-third of the old rent then paid should for the future be reserved in wheat or malt, reserving a quarter of wheat for each 6«. 8^7., or a quarter of malt for every 5.s-., or that the lessees shovdd pay the same according to the price that wheat and malt should be sold for in the market next adjoining to tlie respective colleges, on the market day before the rent becomes due. This sagacious plan is said to (/) Doe d. Griffith v. Lloyd, 3 Esp. 10 Co. R. 127; Biggin v. Bridge, 3 78. Keb. 534. (m) Eccl. Coinmrs. of Ireland v. (2) See the eases atile, 378. O'Connor, 9 Ir. Com. L. R. 242. («) This statute is specially ex- (x) Anon., 2 Show. 77. empted from the operation of 39 &, (y) Gilb. Rents, 52, 53 ; Clan's case, 40 Geo. 3, c. 41, by sect. 7 of that act. 601 *382 RENT. [Ch. X. S. 2. have been the invention of Lord Treasurer Burleigh and Sir Thomas Smith, then principal Secretary of State ; who, observing how greatly the value of money had sunk, and the price of all provisions risen, by the quantity of bullion im- ported from the newly-found America, devised this method for upholding the revenues of colleges. Their foresight and penetration have in this respect been very apparent. The corn-rent has made the old rent approach in some degree nearer to its present value ; otherwise it would seem that the principal advantage of a corn-rent is to secure the lessor from the effect of a sudden scarcity of corn (b'). If the res- ervation be of corn — as in the case of a hospital renewed lease, where the reddendum was "so many quarters of corn "' — it will be understood to mean legal quarters, reck- oning the bushel at eight gallons (c). A reservation of eight bushels of grain in lieu of one quarter is good, because it is all one in quality, value and nature ((?). Computation of rent by average price of corn. — In a lease of land for twenty-one years from the 25th of JNIarch, 1848, it was covenanted that the lessee should pay a stipulated sum for the first year, with a proviso that the rent for each subsequent year of the term should be reduced or increased according to the " average price of wheat in any one year of the said term," such average " to be taken and ascertained from the then current year's averages, which were taken in the month of January in every year under and by virtue of the Titlie Commutation Act (6 & 7 Will. 4, c. 71), s. 56," which is the result of the sales " during seven years ending on the Thursday next before Christmas-day then next pre- ceding." It was held, that the rent might be computed according to such septennial average so published in each year (e). [*382] * (b) Construction of Reservations. Generally. — Wluire there are special days of payment men- tioned in the reddendum, the rent ought to be computed (b) 2 Blac. Com. .322. (). Where the words " during the term " are omitted, and the reservation be either to the lessor or his executors or as- signs (9-), or to the lessor or his assigns (r), the reservation is good for the life of the lessor only. (d) Sums in Cri'oss, quasi Rent. Where sum reserved not rent. — A reservation of an annual sum of money to a third person in consideration of a demise, may be good by way of contract, thougli it is not a sufficient reservation of rent, l)ut the grantee cannot distrain for it, because he has not the reversion (s). If a lessee simply cov- (0 Gilb. Rents, 66; 1 Vcntr. 162; Gilb. Rents, 70; 2 Wms. Sa\ind. 371, 2 Wms. Saunrl. 371, n. (7). n. (7) ; Greenaway v. Hart, 14 C. B. (it) Gill). Rents, 06 ; 1 Vcntr. 161. 340. (/) Com. Di};. tit. Kent (B. 5) ; (o) Co. Lit. 47 a. Sachfverell v. Fropgat, 1 Vcntr. 161 ; (/<) Sachevcrell v. Froggat, 1 2 Wms. Saund. 371, n. (7); Sir T. Vcntr. 161. Raym. 213. (7) Gilb. Rents, 62. (m) Cothcr v. Merrick, Ilardr. 01, (r) Id. 6.'3. 96; Gilb. Rents, 70. (s) Gates r. Frith, Hob. 130. (;i) Whitlock's case, 8 Co. R. 70 b; 608 Cn. X. S. 2.] RESERVATIONS OE RENT. *387 enant to pay such a sum j^early, without mentioning it as a consideration of the demise of the premises, it is not a rent, properly so called, but a sum in gross (^). So under a con- tract for a building lease, where sums in the nature of rent are from time to time to be paid before the lease is granted, such payments are sums in gross, and not rent(?t). Where a landlord who had demised premises for a term of years at a certain rent, afterwards agreed to enlarge the buildings, the lessees agreeing to pay 10?. per cent, additional on the outlay ; it was held, that this was a collateral agreement, and not a con- tract running with the land (a;). So where a sum of money is made payable for goodwill, over and above the rent, this additional' sum, though payable annually, is not to be consid- ered as rent, but only as a sum in gross (f). Where a lease reserved a rent of 40/. per annum, and at the end of it, the words " the allowance of the road to the Six Bells' Yard to be made as usual " were added, and it appeared that it had been usual for the landlord to allow a payment of 5/. an- nually, which the lessee paid to a third person for the use of a road, it was held, that the clause in question was a mere covenant, and not an alteration of the rent, so as to support a plea of non tenuit in replevin (?/). * (e) In Lease of Settled Land. [*387] General restrictions in powers. — The power of leasing commonly introduced into settlements of estates in Eng- land requires the best rent to be reserved, and expressly prohibits the taking of a fine (2). Formerly these powers required the ancient or usual rent (a) to be reserved, but at the present day this practice is very properly exploded (^), and the Settled Land Act, to which reference at length has (0 Smithi'. Mapleback, IT. R.441. (y) Davies v. Staccy, 12 A. & E. («) Hewlett V. Tarte, 10 C. B., N. 606'. S. 813; 31 L. J., C. P. 146; Marquis (c) Sug. Pow. 779 (8th ed.). Camden v. Batterbury, 7 C. B., N. S. (a) For construction of these terms 864. see Sug. Pow. 790, citing Right i-. (x) Lambert v. Norris, 2 M. & W. Thomas, 1 W. Blac. 44G, and other 333; Hoby v. Roebuck, 7 Taunt. 157; cases. Donellan v. Read, 3 B. & Ad. 899. (b) Id. 790. 609 *387 BENT. [Ch. X. S. 2. already been made (e), expressly requires the best rent to be reserved that can reasonably be obtained. Power to allow for improvements. — In two cases, however, the best rent need not of necessity be reserved. Where the holding is agricultural, and the tenant has made or paid for improvements thereon, the 43rd section of the Agricultural Holdings Act, 1883, jn-ovides that it shall not be necessar}', in estimating the rent, to take into account against the ten- ant the increase in value arising from the improvements ; and where a lease is made of land for the purpose of erecting thereon dwellings for the working classes, the 11th section of the Housing of the Working Classes Act, 1885, provides that the lease may be " for such rent as having regard to the said purpose, and to all the circumstances of the case, is the best that can be reasonably obtained, notwithstanding that a higher rent might have been obtained if the land were leased for another purpose." What a sufficient execution of a power. — Where a lease is made under a leasing poAver, it must clearly appear by the instrument that the proper rent has been reserved (t?) ; and although generally the lease must specify the rent reserved, yet in some cases the reservation may be made in the terms of the power generally (e), for. Id certum est quod cerium reddi jyotesf. To whom reservation made. — Altliough at common law rent can be reserved only to the lessor and his heirs who are privies in blood, and not to any who is pi'ivy in estate — as to him in reversion, remainder, &c. (./") — 3'et in the case of powers the reservation to a tenant for life and his heirs is good, and enures as rent to the remainderman, who may distrain for it (<7). But where the lease did not recite the power, and was made by a tenant for life in remainder after a term of 500 years, and reserved the rent to him, his heirs (c) Antr, C!i. I., Sect. 4. Pifxot, ritod o Cli. Rep. Gl ; Sug. Tow. (tl) Kcr V. Duke of IloxburRh, 2 KOI. Dow, 140; Sug. I'ow. 702, pi. .'].') ; Id. (./) Anir, .384. 802. (y) Anon., Anderson, 278; rowell (e) I'owc'll on Powers, ,').").'') ; r)rliy r. on Powers, 572-674. Moliun, .'j ('li. liep. )">(;; I.cwson v. CIO Cn. X. S. 2.] RESEIIVATIONS OF IlENT. *388 and assigns, it was decided to be void, the rent not being made incident to the immediate reversion (/<). The whole rent must be payable annually during the whole term, for the design of the donor is not answered unless a continual revenue * be yearly payable by com- [*388] pulsion of law, and not in expectancy or in futuro (*z) ; but under a power to make leases reserving the ancient yearly rent annually, if it were reserved upon a day before the year was up — as if the year ended at Christmas, and it was re- served at Michaelmas, it would be sufficiently in pursuance of the power (/c). Construction of " best rent." — Whether the " best rent " is reserved is a question of fact to be decided by a jury (Z). Improvements by the tenant, however valuable, will not authorize a lease at an undervalue Qm'), unless the holding be agricultural (w). Where a testator gave lands to trustees upon certain trusts, with a power to lease for the best yearly rent without fine or foregift ; it was held that a lease for a fixed rent, with a proviso that the first five years' rent shouhl be paid in advance, was not warranted by the power (o). A lease from 11th of October, making the rent payable by half-yearly payments on the 6th of April and the 11th of October, except the last half-year's rent, which Avas made payable on the 1st of August l)efore the end of the term, was held good, as being more likely to benefit than to preju- dice the remainderman (jt?). Under a power to grant leases for twenty-one years, "• so as upon every such lease there shall be reserved the best improved rent that can reasonably be had for the same," a lease by a tenant for life, reserving a larger rent than had been paid to the devisor, but not the best rent which could have been fairly obtained, though there (A) Yellowly v. Gowcr, 11 Exch. Esp. 78; Doe d. Sutton v. Harvey, 1 274, 291 ; Bailey c. Tennant, 11 Exch. B. & C. 426. 776. (m) Roe v. Archbp. of York, 6 (0 Taylor d. Atkyns v. Horde, 1 East, 86. Burr. 121; 2 Smith L. C. 405 (6th («) Ante, 587. ed.). (o) Booth v. A'Beokett, 1 Moo. V. (k) Reg. V. Weston, 2 Ld. Raym. C. C. (N. S.) 201 ; 9 L. T., N. S. 68. 1198. (/)) Rutland d. Doe r. Wythe, 2 (0 Wright V. Smith, 5 Esp. 208; M. & W. 661 ; 12 Id. 355; 10 CI. & F. see also Doe d. Griffith v. Lloyd, 3 419. 611 *389 RENT. [Ch. X. S. 2. was no fraud or collusion, was determined to be void (?•). It Avould seem that the best rent means the best rack-rent that can reasonably be required by the landlord, taking all the requisites of a good tenant for the permanent benefit of the estate into the account (s). A lease at 43^. a year, granted under a po^er directing the best rent to be reserved, cannot be impeached merely by showing that the lessor rejected at the time two specific offers, one at 501. and another of from 50?. to QOl. from other tenants, though the responsibility of such other tenants could not be disproved ; for in the exer- cise of such a power, where fairly intended, and no fine or other collateral consideration is received, or injurious par- tiality plainly manifested by the lessor, all other requisites of a good tenant are to be regarded as well as the mere amount of the rent offered, unless something extravagantly wrong in the bargain for rent be shown (s). In Doe v. Harvey a power was reserved to grant leases for a term not exceeding seven years, "so as there was reserved in such leases the best rent that could be gotten for the same, without [*389] * taking any premium for the making thereof." The donee of the power granted a lease for seven years at a specified rent, which lease contained a covenant by the lessee to find board, lodging and wearing a|)parel, during the term, for three children of the donee (if they wished it), at 11. a year each, and for the donee's son gratis. It was held by Parke and Patteson, JJ., that (assuming the power to require two conditions, first, that the rent reserved should be the best rent, and secondly, that there should be no fine or premium) it did not clearly appear on the face of the lease that either of those conditions had been broken, because the covenant to maintain the children was not necessarily bene- ficial to the lessor, and, therefore, parol evidence was admis- sible to show that the rent reserved was the best that could be obtained (^). The best rent must be reserved during the whole teini, so as not to prejudice any remainderman or (r) Wright r. Smilli, '. Ksp. 200; 5 East, 278; Dyas v. Cruise, 2 Jon. & Dow, 814; Siif,'. Tow. 780 (8tli cd.)- I-»f- •!'''>• (s) Doe d. Luwton v. llailcliffe, 10 (/) Doe (/. Rogers r. lioKer8, 5 B. & Ad. 70-!) (dUs. 'I'auiiton, J.). C12 Cii. X. S. 2.] RESEKVATIONS OF RENT. *390 reversioner (w) ; nor even the tenant for life who de- mises (.c). As to fines or premiums. — A tenant for life under a settle- ment with power to lease at the " usual rent," may demise upon reserving the usual lines and rent, where the usual profit had previously been made by fines (?/). Where there was a devise to the use of H. I. for life Avitliout impeachment of waste, &c., remainder to the use of plaintili" for life, with power to make leases for two or three lives, &c., or for the term of twenty-one years, so as there be reserved the best rent, without taking any sum or sums of money or other thing, for or in lieu of a fine ; and H. I., by indenture of loth October, leased for fourteen years, to be computed as to the meadow land from 13th February, the pasture from 25th March, and the messuage from 12th May previously, under a yearly rent, payable to the lessor and such other person as should be entitled to the freehold and inheritance, half- yearly, on the 11th November, and 25th March, the first pay- ment to be made on 11th November next ensuing ; and the lessee covenanted with the lessor, his heirs and assigns, for payment to the lessor and such other person, &c., of the rent at the days and times, &c. : it was held, that the reservation of the first half-year's rent, payable at the end of twenty- seven days, was not taking a sum of money for a fine, being in consideration of a preceding occupation (z). Where a power was given to a tenant for life to make leases, with or without a fine, at such rent as he thought proper ; it was held, that a lease, without any reservation of rent whatever, was good (a). * Effect of improvement. — Where a tenant for life [*390] entered and built a new house upon the land, and then made a lease for twenty-one years, reserving only the (xi) Doe d. Sutton v. Harvey, 1 B. Burr. 1446 ; Doe d. Newnham v. & C. 426. " Creed, 4 M. & S. 371. {x) Moiintjoy's case, 5 Co. R. 6 a, (s) Islierwood v. Oldknow, 3 M. & b; Sug. Pow. 792. Where the rent S. 382; Sug. Pow. 7!)2 (8th ed.). is reserved at a future day by mis- («) Talbot ?-. Tipper, Skin. 427 ; take, see Marquis of Donegal r. Grey, Sug. Pow. 433; In re Molton, 2 Ir. 13 Ir. Eq. R. 12, 52, 53. Com. L. R. 64 ; Clarke v. Smith, 9 CI. {y) Right d. Bassett v. Thomas, 3 & F. 126. 613 *390 RENT. [Ch. X. S. 3. ancient rent, &c., tlie court would not suffer an objection to it to be argued (6). Sect. 3. — Penalty or Liquidated Damages. Penalty in leases, &c. — Sometimes the payment of rent and performance of covenants in a lease or agreement for a lease are secured by a bond or penalt}-, with or without sureties (c). The right to such penalty will pass with the reversion as an incident thereto, and may be enforced against an assignee of the term (t?). If there be a penalty to secure the payment of rent, the lessor must demand the rent at the day fixed for the payment of it (c). It seems that such penalty, like any other forfeiture, may be waived by accept- ance of the rent (/). Action for the penalty. — Whenever a breach first occurs, for which an action is necessary, the lessor may sue either for the penalty or for general damages (^). Where he elects to sue for the penalty he must allege (inter alia) that the penalty has not been paid : otherwise there Avill be no suffi- cient breach, and only general damages can be recovered (/<). The judgment will be for the penalty with costs : but execu- tion may issue only for the damages as assessed by the jury and all costs (z). Such judgment will afterwards stand as a security for further breaches, which may be suggested from time to time when necessary (Jc). Action for damages. — After obtaining judgment for the penalty the plaintiff cannot bring a fresh action for damages (,'j) ■Read and Nash's case, 1 Leon. 74, 111 ; hut see Thynn v. Cliohnley, 147 ; Sug. Pow. 790. Cro. Eliz. ."So. (c) Andrews v. Wood, Cro. Eliz. (/) Doe d. Cliecny v. Batten, ."32; riiapnian v. Chapman, Cro. Car. Cowp. 247. 7f5; StanclitTe, app., Chirke, rosp., 7 (.7) leek^ v. Grew, G N. & M. 4(57. Exch. 4.39; 21 L. .!., E.x. 120. (//) Hurst r. Hurst, 4 E.xeli. 571; 6 () Astley v. Wehhm, 2 Bos. & P. Id. tit. Rent (I.) ; Grantham v. Thorn- 353 ; Lowe v. Peers, 4 Burr. 2228. borougli. Hob. 82, 133; (Jilh. Rents, G14 Ch. X. S. 3.] PENALTY OR LIQUIDATED DAMAGES. *391 in respect of siibsecpieut breaches, but must suggest them as above mentioned. On the other hand, if the lessor (or his assigns) elect to sue for damages for any breach, he cannot afterwards maintain an action for the penalty, but he may recover damages toties qiioties to a greater amount than tlie penalty (?). Only such damages as the jury shall find that the plaintiff has actually sustained by the alleged breaches can be recovered (m). * Liquidated damages. — " Liquidated damages " are [*391] sums agreed to be paid, and intended to he actually paid (»), for the breach of any particular covenant or stipu- lation. Thus, where a tenant covenants or agrees not to plough up any of the ancient meadow or pasture ground, and that if he does so, he will pay an additional yearly rent of 6Z. per acre ; or that he will pay an additional specified rent per acre, and so in proportion, for every acre had in tillage beyond a certain quantity (o) ; or that he will not sow more than seventy acres with clover in one year, or if he does so, will pay an additional rent of 10/. for every acre above seventy for the residue of the term (^) ; or if the lease contain a stipulation that for every acre, and so in pro- portion for a less quantity, which the lessee should suffer to be occupied by any other person, without the consent of the landlord, an additional rent shall be paid (5-) ; in these and similar cases the additional sums reserved become recover- able, when once the particular stipulation is broken, for the remainder of the term. Where a tenant held under a demise upon the terms not to sell any hay produced on the demised premises, off the said premises, " under the penalty of 2s. Qd. for each yard of the said hay so sold as aforesaid, to be re- covered by distress as for rent in arrear : " it was held, that (/) Lowte V. Peers, 4 Burr. 2228; 430; Bowers v. Nixon, 12 Q. B. 546, Winter v. Trimmer,! W. Blac. 395; 558; Denton r. Richmonil, 1 Cr. & Harrison v. Wright, 13 East, 343; M. 734; Birch r. Stei)henson, 3 Taunt. Mercer v. Irving, E., B. & E. 563; 6 4G9; Howell v. Kichards, 11 East, 633 ; W. R. 661. Farrant v. Ohnius, 3 B. & A. 692. (m) See Kemble v. Farren, 6 Bing. (p) Jones v. Green, 3 Y. & J. 298. 141. (9) Greenslade v. Tapscott, 1 C., (n) Diniich i'. Corlett, 12 Moore, P. M. & II. 55 (user of small portions C. C. 199. of land for raising potato crop). (0) Rolfe V. Peterson, 2 Bro. P. C 615 *392 RENT. [Ch. X. S. 3. although this was not strictly a rent, it was not a penalty, but an agreed sum recoverable by distress as for rent (r). Injunction. — Where an increased rent is reserved by way of liquidated damages, an injunction will not be granted to restrain the lessee from committing the breach of covenant in respect of which the increased rent becomes payable (s), but where there was a covenant by a lessor not to carry on the business of a saddler within ten miles of the demised premises, and to pay 100?. by wa}^ of liquidated damages if he did, an injunction was granted (^). Difference between penalty and liquidated damages. — The difference between a penalty and liquidated damages is very great. Although judgment may be obtained, execution can- not issue to levy the amount of a penalty, but only the dam- ages assessed by the jury, with costs ; and the judgment Avill stand as a security for any subsequent breaches (?<). But liquidated damages constitute a debt of fixed amount, which may be recovered upon proof of the contract and breach, without au}^ evidence as to the amount of damages actually sustained (x). In such case the jury is bound to [*392] give their * verdict for the Avhole sum stipulated to be paid (however disproportionably large), and not for what they find to be the actual amount of damage sus- tained : otherwise the court will set aside the verdict, and grant a new trial (?/). But the court will not set aside the award of an arbitrator on this ground, unless the mistake appear on the face of his award (2). Increased rent, being in the nature of liquidated damages, may be distrained for Ca), but a ])(;nalty cannot. How distinguished. — Notwithstanding the important differ- (r) Pollitt ;■. Forrest, 11 Q. B. 949; Excli. 059; Atkyns 7-. Kinnier, 4 1 C. & K. 5(50. Excli. 770; Saiiiter i;. luTfjuson, 7 C. (s) Woodward v. Giles, 2 Vern. B. 710; Reynolds ;;. Bridge, G E. & 119. B. 528; Mercer v. Irving, E., B. & E. (0 Jones 1'. Heavens, L. II., 4 Ch. 503. I). 030; 25 W. R. 355. (//) Farrant v. Olmius, 3 B. & A. (h) Ante, note (7). 092 ; Mercer v. Irving, E., B. & E. (x) A.stley v. Weidon, 2 Bos. & P. 503 ; Fletolier v. Dyclie, 2 T. R. 37. 351 ; Rolfe v. Peterson, 2 Bro. P. 0. (') Fuller v. Fenwiek, 3 C. B. 705. 43(i ; Green v. Price, 13 M. &, W. 095 ; (,i) Pollitt v. Forrest, 11 Q. B. 449 ; 10 Id. 340; Galswortliy v. Strutt, 1 Bowers i;. Nixon, 12 Q. B. 640, 558. GIG Cii. X. S. 3.] PENALTY OR LIQUIDATED DAMAGES. *393 ences between a penalty and liquidated damages, it is some- times difficult to distinguish tlieni : the numerous cases upon this point are somewhat conflicting. If expressly called a "penalty " in the contract, that is not conclusive (/>) ; but if pleaded as a penalty, that is conclusive against the ])arty so pleading (c). On the other hand, if expressly declared in the contract to be " liquidated and ascertained damages, and not a penalty or penal sum or in the nature thereof," it may be held to be a mere penalty (jT). It not unfrequently happens that the same sum is called both a penalty and liquidated damages in the same sentence ; or it is stated to be a penalty or forfeiture to be recovered as liquidated damages (e). There is no magic in words. A penalty is a penalty, although called liquidated damages, " the mere alteration of the term cannot alter the natui-e of the thing "(/). The courts are therefore bound, in compliance with the established rules of construction, to collect the meaning of a writing and the real intention of the parties, not from any single word or particular expression, but from the whole scope and tenor of the instrument () Ld. Rockingham v. Penrice, 1 (») Collier i;. Nokcs, 2 C. & K. P. Wms. 177; 1 Salk. 578; 1 Swnnst. 1012. 345, note; Rac. Abr. tit. Rent (H.). (x) Doe rf. Wheeldon v. Paul, 3 C. (<) Clun's case, 10 Co. R. 127 b; & ]'. 013. Ld. Cromwell v. Andrews, Cro. Kliz. (//) Plow. 172 a; Co. Lit. 202 a; 15. Cropp )>. Ilunihcrton, Cro. Eliz. 48. (J) Lord Rockinfiliam ?•. Penrice, {z) ()iipf)!t IK Mayo. 2 Salk. 578; 1 sujtra ; Bac. Abr. lit. Kent (M.). Wms. Saund. 287; Chin's case, 10 G20 Cii. X. S. 4.] WHEN RENT IS DUE. *395 mainder-man is entitled to recover the rent so paid fi'oni his representatives. If a tenant make a payment in advance, and the landlord dies before the rent-day, the pay- ment may be pleaded by way of an equitable defence, to an action by the landlord's executors for the rent (e). But a payment of rent in advance is not within 4 Ann. c. 16, s. 10, so as to discharge the tenant from his obligation to pay rent to the assignee of the reversion, in case he received notice of the assignment before the rent is due (/).^ At what days rent is due. — Where rent is reserved gener- ally, and no mention is made, as is usual, of half-yearly or quarterly payments, nothing is due until the end of the year (//) : and where, after signing a written agreement which made no mention of the time when the rent was to be paid, the landlord asked the tenant how he would like to pay the rent, and the tenant replied quarterly, and the rent was accordingly paid quarterly, it was held that the rent was still due annually, and not quarterly (It). Where there is a gen- eral reservation of a yearly rent, a clause to put an end to the term, by notice expiring on any quarter day, will not make the rent payable quarterly (^). In a case where an agreement was dated the 21st of January, and a person thereby agreed to become tenant, " at the customary time of entry," at a certain rent to be " paid at the usual time," " as agreed upon ; " and he entered at Lady-day, the usual time of entry being the 12th of May, the usual time of rent becom- (e) See Nash v. Gray, 2 F. & F. Iain, 4 C. & P. 2G0 ; Coombor v. How- 391. ard, 1 C. B. 440. (/) De NicoUs v. Saunders, 39 L. (/i) Turner v. Allnay, Tyr. & G. J., C. P. 297; Cook v. Guerra, 41 L. 819. J., C. P. 89. (i) Collett V. Curling, 10 Q. B. 785; {g) Cole V. Sury, Latch, 264 ; Com. 5 I). & L. 605. Dig. Rent (B.), 8; Gray v. Chamber- 1 A bona fide payment in advance is good against a subsequent assign- ment of reversion, Ala. Gold Life Ins. Co. v. Oliver, 78 Ala. 158; Westmore- land V. Foster, 60 Id. 448 ; Stone v. Patterson, 19 Pick. (Mass.) 470 ; Farley V.Thompson, 15 Mass. 18; a fortiori, if, by the terms of the contract, the rent was payable in advance, Farmers and Mechanics' Bank v. Ege, 9 Watts (Pa.) 436. A prior mortgagee can require lessee to pay rent over again. McDevitt v. Sullivan, 8 Cal. 592. There is a special statute in Pennsylvania which affects judicial sales. 621 *396 RENT. [Ch. X. S. 5. ing payable, being once a year, at Michaelmas, and the rent- day, when it was paid, being the 8th January: it was held, that there was evidence that the rent was payable at Michael- mas, and that it was not necessarily payable at the end of the year, from the time of entry (k'). When the rent is made payable on certain da3'S in the year, it is due on the first of the days occurring in point of time, without regard to the local order of the words (/}. If rent is intended to be made payable in advance, such intention should be clearly ex- pressed (m). A covenant that a half-year's rent shall remain in the hands of the tenant till the last year, means the '^ cur- rent half-year "(m). Where rent was reserved quarterly, or half -quarterly if required^ and the landlord received the rent quarterly for the first twelve months, it was held, that he could not, without notice, distrain for a half-quarter's rent (o). *[396] * Sect. 5. — Payment of Rent. Rent a debt of high nature. — Rent is considered as of a higher nature than even a debt due on an instrument under seal, as between the parties themselves. In the case of the death of the tenant, it was, })rior to the act 32 & 33 Vict, c. 46, of equal degree with specialty debts, so as, in the dis- tribution of the deceased's estate, to be payable with debts of tliat degree ( p) ; but now, by virtue of that statute, all the creditors of a deceased person are treated as standing in equal degree. Rent in arrear is no part of the reversion; and therefore when rent becomes due after delivery to the sheriff of a writ of elegit against the lessor, but before inqui- sition taken thereon, it is not payable to the execution creditor () Tliompson v. Thompson, 9 (/) Hill V. Gr!Uij,'c', IMowd. 171. I'rice, 471. (;«) Ante, Sect. 1. Cv) Sharp (■. Key, 8 M. & W. 379; (n) V. NiiJioils, Lofft, 393. 9 Dowl. 770. (o) Mallain v. Ardeii, 10 Bitig. 299. 622 Ch. X. S. 5.] PAYMENT OF UKXT. *397 master, to be attached in the hands of his tenant, as a debt, under the Rules of the Supreme Court (Order XLV., Rule 2)(/-). But accruing- rent not due cannot be so attached (.s-). Rent which is overdue cannot be attached under a foreign attachment in London (^). Payments to wrong person. — A payment of rent, by mistake or misrepresentation to a person not entitled to demand it, does not preclude the tenant from showing that the person to whom it was paid was not entitled to it(w.), but the onus of proof is shifted. Therefore, if A., who is a tenant for life subject to forfeiture, with remainder over to B., lease to C. for a term, and afterwards, apprehending that he has foifeited, acquiesce in B.'s claiming and receiving the rent from C; his executor may, on showing that he acquiesced under a false apprehension, recover from C. the amount of the rent erroneously paid to B. (a;). Where an old corporation, before the Municipal Reform Act, were trustees of a charity, and a tenant of the charity paid rent after the new corporation came into office to the secretary of the old corporation, who still continued as charity trustees, it was held that this was a good payment as against the new corporation (?/). Allowances by mistake of deductions. — An allowance by w^ay of deduction from the rent, even though made by mis- take, operates as payment of the rent, pro tanto : thus * where a tenant paid rent regularly to the landlord's [*397] agent, deducting a sewers rate, which by the terms of the agreement under which the tenant held he ought himself to have paid, it was held, that, in an action to recover the sums so deducted as arrears of rent, a plea of payment was supported by the facts (2). (r) Mitchell v. Lee, 8 B. & S. 92 ; («) Rogers v. Pitcher, 6 Taunt. L. K., 2 Q. B. 259; decided on s. 62 202. of the Common Law Procedure Act, (.r) Williams v. Bartholomew, 1 1854, from which Order XLV., Rule Bos. & P. 320; Gregory ;;. Doidge, 2, differs only in enlarging the discre- o Bing. 474; Claridge v. Mackenzie, tion of the court. 4 M. & G. 148. (.s) Jones V. Thompson, 27 L. J., Q. (//) Mayor, &c. of Ludlow i\ Cliarl- B. 234 ; and see for the general prin- ton, 9 C. & P. 242. ciple, Tapp v. Jones, L. R., 10 Q. B. (s) Waller v. Andrews, 3 M. & W. 591. 312; Bramston v. Robins, 4 Bing. 11. (0 Com. Dig. Attachment (1).), cited 8 B. & S. 95. 628 *397 RENT. [Ch. X. S. 5. Rent is payable on the land, except in the case of a covenant. — Rent reserved, payable 3^early, or otherwise, is to be paid on the land, because the land is the debtor, and that is the place of demand appointed by law:^ so if a man lease, render- ing rent, and the lessee binds himself in a sura to perform the covenants, this does not alter the place of payment of the rent, for it may be tendered on the land without seeking the obligee, excej)t where the condition is for the perform- ance of homage or other corporeal service to the person of the lord (a). This, however, which is a rule of the common law, applies only to re-entry for non-payment of rent, and not to an action on the covenant to pay it. Such a covenant (if no particular place of payment be mentioned) is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it is incumbent on the covenantor to seek out the person to be paid, and pay or tender him the money, for the simple reason that he has contracted so to do. So it was held in the considered case of Haldane v. Johnson (6), where the authorities for this somewhat harsh doctrine (which applies, if only the landlord be intra quatuor maria) will be found carefully examined. The lessee of the crown must pay his rent, without demand, at the Exchequer, wherever it may be; but if the crown grant the reversion, the rent must be demanded on the land before the grantee can enter as for a forfeiture on non-payment (c). Remittance of rent through post. — Like any other species of debt, rent is often paid by a remittance by the post. But remitting through the i)Ost is departing from the mode of payment marked out by law, and in the absence of a recogni- tion by the landlord of the use of the post, the loss by post would fall on the tenant. It has been held that if a tenant Ix! directed by his landlord to remit money by the post, and it; be lost, the latter must bear the loss () 8 Exoh. 080; 17 Jur. n.37 ; 22 2 Brod. & B. 2.'}4 ; Slicp. Touch. .'JTH ; L. J., Ex. 204. Crouch V. Falstolfo, Sir T. Bayni. (c) Biic. Abr. tit. Rent (1.). 418; Com. Dig. Picador (2 W. 4!)). {d) Warwick v. Noakes, Tcakc, 07. * Sec cases cited nnir, sec. 4, note 2. G24 Ch. X. S. 5.] PAYMENT OF RENT. *398 case, it is said, the tenant must show due caution (g), such as, in the present day, using a registered letter. It is prolj- able that sliglit evidence of an implied recognition ])j tlie landlord of the use of the post would be held sufficient; but in every case it would be desirable to obtain an express recog- nition by the landlord, once for all, of the mode of payment. Where a creditor in the country directed his debtor to pay money into a * London banking-house to his [*398] account, and had no account with the house but through a country banker ; it was held, that a payment there to the credit of his account with the country banker was a discharge to the debtor (/). Generally, a creditor may insist upon payment being made either to himself or Iris agent ; but having authorized payment to his agent, he cannot revoke that authority, if the debtor have given such a pledge to pay pursuant to the authority as would bind him in a court of law (g'). Payment by bills or notes. — If the landlord take a security for rent in arrear — as if he take a bond, bill of exchange, or promissory note — his so doing will not of itself amount to a payment of the rent, nor bar him of his remedies peculiar to the recovery of rent.^ So it was held in Davis v. Gyde (A), it having been previously ruled at nisi prius, that where the tenant gave a note of hand for rent in arrear, and took a receipt, he could not sue the landlord in trespass for a dis- tress, but that, notwithstanding the note, the landlord might distrain, as the note was no alteration of the debt till pay- ment (J). In another case, a tenant being indebted for rent, his landlord's agent received from the tenant a bill of ex- change for the amount, which he endorsed over, and paid tlie rent to the landlord, crediting it in his accounts as if the tenant had paid the money. The landlord having distrained for rent, it was held to be a question for the jury whether (e) Hawkins v. Rutt, Peake, 186. v. King, 5 B. & A. 165; Smith L. & (/) Breed v. Green, Holt, 204. T. 169 (2nd ed.). (jr) Hodgson v. Anderson, 3 B. & {i) Harris i'. Shipway and Ewer v. C. 842. Lady Clifton, Bull. N. P. 182; Seven (h) 2 A. & E. 624; and see Murray v. Mihil, 1 Ld. Ken. 370. ^ See post, ch. 11, sec. 10 (a), note, " Distress : when may be made." 625 *399 RENT. [Ch. X. S. 5. the transaction amounted to a discount of the bill by the agent for the tenant, or a mere advance of rent by the agent to the landlord, in which latter case he was entitled to dis- train (k'). Where to covenant for rent against three defend- ants, it was pleaded that 41?. of the rent was paid ; that of the residue two of the defendants had paid their shares, and that the other had given the plaintiff a promissory note for his share payable at a banker's ; that such note Avas dishon- oured, whereupon the plaintiff sued him and had judgment by default on the note, which judgment was still unsatisfied ; it was held, that the judgment was no merger, being obtained on a collateral security, and not having produced actual sat- isfaction (/). In Davis v. Gyde, however, which was decided on demurrer, more than one member of the court pointed out that a special agreement, made at the time of the note, for suspending the distress, might have suspended the right to distrain. Davis v. Gyde has not been questioned, but it seems to bear very hardly on the tenant, and, although it is not likely to be overruled, it is submitted that it is in- [*399] correct, on the ground that the acceptance of a * nego- tiable security constitutes an implied suspension of the right to distrain, and that the substitution of the simple remedy upon a note for the more cumbrous remedy other- wise open to the landlord is a good legal consideration. A similar remark will apply to Skerry v. Preston (w), in which it was held that an agreement to take interest did not post- pone the riglit of distress. Stamp duty on receipts for rent. — Receipts or discharges given for the payment of rent required to be stamped with a penny stamp if the sum received amounts to 21. or upwards (n). Where a landlord fraudulently and improperly received various sums of money from several of liis tenants, and the evidence of payments by them consisted of memoranda of accounts delivered to the tenants in which the items in (/•) Tarrott v. Anderson, 7 Exch. (n) Stamp Act, 1870 (;13 & o4 9.1 ; Grifiitlis v. Cliichesttr, Id. 95. Vict. c. !)7), ss. 120-123, and Schedule, (/) Drake r. Mitchell, 3 East, 251. tit. Receipt, (m) 2 Chit. li. 245. 626 Cu. X. S. 5.] PAYMENT OF RENT. *400 question were set down, and to each of which the landk)rd wrote the word " paid ; " it was held, that such memoranda were admissible in evidence without a stamp, when coupled Avith entries in the steward's books to the same effect (o). A paper signed by the lessor in this form — "Mr. J. (the lessee) having written off the sum of 121. from his mortgage debt, being five quarters' rent of his house, I hereby dis- charge the same rent to the 24th day of July last" — re- quires a receipt stamp (p). A paper in form of a receipt, if it is not given in evidence as a receipt, does not require a stamp ((7) ; and an unstamped receipt may be used by a wit- ness who can prove the fact independently, to refresh his memory (r). "When payment of ground-rent operates as payment pro tanto o^ the rent. — A payment of ground-rent by the tenant, in de- fault of payment by his mesne landlord, may operate as pay- ment pro tanto of the rent claimed by the latter (s) ; and growing rent may be discharged by such payments as well as rent actually due (0- Such payments are not the less compulsory because the ground landlord, on demanding the ground-rent, allows the occupier time to pay (^). Where a stranger received rent due to the testator in his lifetime, and, afterwards by desire of the tenant in possession, paid the demand, of ground-rent due at the same time for the said premises ; it was held, that he might deduct such payment in an action by the executor for the rent, but not a payment of ground-rent arising after the death of the testator (u). Payment of taxes, rates, &c. — A payment of property-tax operates as a payment pro taijto of the rent, notwithstanding any stipulation in the lease to the contrary (v). So a pay- ment of land-tax, sewers-rate, rent-charge, in lieu of tithes, * and other charges of the like nature, may, [*400] in the absence of any express stipulation for their (0) Clarke v. Hougham, 3 D. & R. (.s) Doe v. Hare, 2 C. & M. 145. 325. (0 Carter v. Carter, 6 Bing. 400 ; (/>) Lucre v. Jones, 5 Q. B. 949. Sapsford v. Fletcher, 4 T. R. 511. (7) Brookes v. Davies, 2 C. & P. («) Wilkinson v. Cawood, 3 Anst. 186 ; Matheson v. Ross, 2 H. L. Cas. 905. 280. (y) Post, Chap. XV. (r) Rambert v. Cohen, 4 Esp. 213. 627 *400 RENT. [Ch. X. S. G. payment by the tenant, operate as a payment pro tanto of the rent, and be deducted accordingly on the next payment of rent (.t). When other payments may be deducted. — It has been said that wherever a tenant may be ousted from his occupation on default made of a payment by his landlord, he may pay in his discharge and for the redemption of the premises, and deduct such payment from his rent (^). Such payments, in event of the tenant being sued for the whole rent, would seem to fall within the scope of the Rules of the Supreme Court, 1883 (Order XIX. Rule 3), by which " a defendant in an action may set off or set up by way of counter-claim against the claims of the plaintiff, any right or claim, whether such set-off or counter-claim sound in damagfes or not, and such set-off or counter-claim shall have the same effect as a cross action." Even before the Judicature Acts, it was held that in an action for rent the tenant might avail himself of a part payment obtained from him under a distress or a judgment of the County Court for the same rent (2), and that where a landlord was bound to repair, and the ten- ant was obliged by sudden accident to make repairs, in order to prevent further mischief, the tenant might set off the money laid out in the repairs (a). It was, however, held that there could be no set-off where the tenant paid as rent a sum to prevent a person ejecting him from a portion of the land to which he claimed title from the lessor prior to the lease (h). Sect. 6. — Apportionment of Rent. Ta) Apportionment in respect of Estate. By act of law. — Apportionment of rent in respect of estate takes place by act of law where lands demised at an entire rent become divided among different persons ; thus, if free- hold and leasehold premises are let together at one rent, an- (r) Pout, Chap. XV. («) H.anncr v. Bean, .3 C. & K. .307. (»/) Smitli V. IVarce, MS., sittings (n) Waters r. Wcigall, 2 Anst. 57r). at (iuildiiall, after M. T. 43 Geo. 'i, (h) lioodle v. Cambell, 7 M. & G. Lord Ellenborough, C. J. m\ ; 2 1). & L. GO. « 628 Cii. X. S. 6] APPORTIONMENT OF RENT. *401 apportionment takes place, at the death of the lessor, among the real and personal representatives.^ By alienation pf lessor. — Apportionment at common law may also be by act of the parties : thus, if the lessor disj^ose of the reversion in part of the lands, either by deed or will, the rent is apportionable (c) ; ^ but the lessee's * concurrence to the apportionment is necessary, un- [*401] less it be settled by a jury (c?).^ By alienation of lessee. — When the lessee aliens part of the land, the alienee is liable for a proportional part of the rent if the landlord choose to proceed against him (e).^ Al- though the landlord has received rent from the assignee, the personal contract of the lessee still subsists, and renders him liable for the whole arrears in an action of covenant (/).^ By surrender. — When the lessee surrenders part of the land to the lessor, the rent for the remainder is apportioned. It would seem that the rent should be apportioned, not ac- cording to the quantity, but according to the value of each part as improved by buildings, &c. (/y). Eviction of lessee. — Where the lessee is evicted from part of the lands hy title para7)iount, he will have to pay a ratea- (c) West V. Lascelles, Cro. Eliz. (/) Bachelour and Gage's case, 851; Collins and Harding's case, 13 Cro. Car. 188; Ipswich (Bailiff) v. Co. R. 57 a ; Cro. Eliz. 609, 622. Martin, 1 Roll. Abr. 235, pi. 17 ; (d) Bliss V. CoUings, 5 B. & A. 876. Orgill v. Kemshead, 4 Taunt. 042. (e) Stevenson v. Lambard, 2 East, (^r) Smith v. Malings, Cro. Jac. 575. 100; Anon., Moor, 114. 1 That leasehold property passes to executor or other personal representa- tives carrying the rents, botli accrued and unaccrued, see cases cited ante, Chap. VII., sec. 13 (b), note, " Chattels real." That rents accrued, botli of free- liolds and leaseholds, pass to executors, see note, " Accrued rents," same sec- tion. That rents accruing subsequently to decedents' death belong to the heirs, see note, "Rents : when belonging to heirs and devisees " and " Rela- tions to realty," same section. 2 Assignees of reversion of part of premises are entitled to proportionate part of rent, and assignee of entire reversion to entire rent subsequently accru- ing. See ante, Chap. VII., sec. 3, note, " Severance of reversion," and sec. 2, note, "Assignment of reversion," and sec. 9, note, "Purchase of reversion." 3 Rose, J., in Boulton v. Blake, 12 Ont. 532, 538. * See ante, Chap. VII., sec. 6, note, " Severance of term." * See ante, Chap. VII., sec. 5, note, " Effect of assignment of term." 629 *401 RENT. [Ch. X. S. 6. ble proportion for the remainder (/«) ; ^ but if lie be evicted from part of the hinds hy his landlord (or his assigns), no apportionment, but a suspension of the whole rent, takes phice (i).i There is no suspension, however, if the eviction (A) Gilb. Rents, 147 ; Smith v. (0 Smith L. & T. 287 (2nd ed.) ; Malings, Cro. Jac. 160; 1 Roll. Abr. but the tenant must perform all his 235; Stevenson v. Lambard, 2 East, covenants; as to repair, &c., Newton 575; Boodle v. Cambell, 7 M. & G. v. AUin, 1 Q. B. 517; Morrison j;. 386; 2 D. & L. 66; McLoughlin v. Chadwick, 7 C. B. 283. Craig, 7 Ir. Com. L. R. 117. ^ Eviction of lessee. — (a) Partial eviction by third parti/, under title para» mount, discharges claim for rent pro tanto. Poston v. Jones, 2 Ired. Eq. (N. C.) 350 ; Fillebrown v. Hoar, 124 Mass. 580 ; Djett v. Pendleton, 8 Cow. (N. Y.) 727 {per Spencer, Sen.). (/>) Partial eviction bi/ lessor discharges entire rent. Christopher v. Austin, 11 N. Y. 216; Colburn y. Morrill, 117 Mass. 2G2 ; Fillebrown v. Hoar, 124 Id. 580, 583 (per Soule, J.) ; Leishman v. White, 1 Allen (Mass.) 489; Shumway V. Collins, 6 Gray (Mass.) 227 ; Royce v. Guggenheim, 106 Mass. 201 ; Smith V. Stigleman, 58 III. 141 ; Briggs v. Hall, 4 Leigh (Va.) 484 ; Hayner v. Smith, 63 111.430; Halligan v. Wade, 21 Id. 470; Lewis v. Payn, 4 Wend. (N. Y.) 423. (tr) Entire eviction, whether by lessor or third party (having paramount title) discharges entire unaccrued rent. Simers v. Saltus, 3 Denio, 214 ; Dyeft v. Pendleton, 8 Cow. (N. Y.) 727 (reversing Pendleton v. Dyett, 4 Id. 581) ; Cohen i-. Uupont, 1 Sandf. (N. Y.) 200; Leopold v. Judson. 75 111. 536, 539 (per Craig, J.) ; Westlake v. Be Graw, 25 Wend. (N. Y.) 669, 672 (per Sav- age, Ch.J.). Rent will not (at common law) be apportioned after eviction between rent days. Fitchburg Man. Co. v. Melven, 15 Mass. 268. (d) Accrued rent not barred. — Eviction is no bar to prior accrued rent. Leary v.. Meier, 78 Ind. 393. (e) Actual eviction is accomplished in divers ways. F»r example, by taking possession, putting furniture out, requesting family to leave, locking up rooms, &c., &c., Fillebrown i;. Hoar, 124 Mass. 580; Colburn v. Morrill, 117 Mass. 262; Christopher v. Austin, 11 N. Y. 216; Hayner v. Smith, 63 111. 430; Briggs V. Hall, 4 Leigh (Va.) 484; also entry by mortgagee, Fitchburg Cotton Man. Co. v. Melven, 15 Mass. 268; Smith v. Sliepard, 15 Pick. (Mass.) 147 ; Fitzgerald v. Beebe, 7 Ark. 310 ; or delivery of possession by officer under levy, &c.. Gore v. Brazier, 3 Mass. 523. (/) Constructive eviction is accomplishey acts of a permanent (;haracter, destroying or injuring the value of tlie use of the property to the lessee. It will liavc the same effect as an actual evic- tion. Mere temporary acts (as trespasses), which do not permanently affect value of lease, do not constitute it. What does constitute it is, sometimes, a very nice question. (7) Eramptes of constructive eviction. — Erection of building imder eaves, excluding light and air, Sherman v. Williams, 113 Mass. 481 ; or, on demised premises, cutting off the light ami air from two rooms, Hoyce »■. Guggenheim, 106 1(1.201; digging under building and rendering it unsafe, Skally v. Shute, 630 Ch. X. S. 6.] Ari'OUTlONMENT OF KENT. *401 lias followed uj)on some wrongful act of the lessee, such as a forfeiture or recovery of part of the lands in an action of waste (A;). (k) Walker's ease, 3 Co. K. 22; 1 Roll. Rep. ;W1; Moor. 203. 132 Id. 3G7 ; threats, by one having paramount title, Merrjinan v. Bourne, 9 Wall. 592 ; distraining for rent due lessee, Lewis v. Payn, 4 Wend. (N. Y.) 423 ; demand of rent under tlireat of expulsion, by one having paramount title, Holbrook v. Young, 108 Mass. 83 ; Simers v. Saltus, 3 Denio (N. Y.) 214; demand of possession by rightful owner, (rreenvault v. Davis, 4 Hill (N. Y.) G43 ; St. John v. Palmer, 5 Id. 599 ; Loomis v. Bedel, 11 N. H. 74, 83, 84 ; ejectment of lessor by stranger prior to entry of lessee, Poston v. Jones, 2 Ired. Eq. (N. C.) 350; renting reserved premises for a liquor saloon and part of demised premises to railroad company, Halligan r. Wade, 21 111. 470; muffling door-bell, making abusive and obscene noises at door, littering stair- carpet, and placing snowballs on windows, Cohen c. Dupont, 1 Sandf. (N. Y.) 260 ; escape of sewer gas, caused by defective plumbing which lessor was bound to repair, Bradley ;-. l)e Goicouria, 12 Daly (N. Y.) 393, 397. (A) D;/ctt V. Pendleton. — In Dyett v. Pendleton, 4 Cow. (N. Y.) 581, it was held that bringing lewd women into another tenement under the same roof with lessee, thereby creating (by their loud noises in the night-time, &c.) such a nuisance that he was compelled to leave, constituted a constructive eviction. This case is frequently cited as authority. It has, however, been several times called a doubtful or extreme case, viz. : by Savage, Ch. J., in Etheridge v. Osborn, 12 Wend. (N. Y.) 529, 532; by Nelson, Ch. J., in Ogilvie v. Hull, 5 Hill (N. Y.) 52, 54 ; by Bronson, Ch. J., in Gilhooley v. Washington, 4 Comst. (N. Y.) 217, 219; by Gray, J., in Royce v. Guggenheim, 106 Mass. 201, 204, 205 ; and by Endicott, J., in De Witt v. Pierson, 112 Id. 8, 11. It is observable that the acts of the lessor in Dyett v. Pendleton were vol- untary, immoral, and illegal, that they were not committed upon the demised premises, but that they wholly destroyed the value of the lease. The court (per Spencer, Senator) say: "Suppose tlie landlord had established a hospi- tal for the small-pox ... in the remaining part of his house, . . . can there be any hesitation in saying that ... he should not recover for the use of that house ■? " (i) Eviction bij third parti/ need not be b>/ process oflaio. — It has been some- times held that eviction by a third party must be by due process of law, Waldron v. M'Carty, 3 Johns. (N. Y.) 471 ; Kerr v. Shaw, 13 Id. 236. The contrary is now fully established. See cases previously cited. (j) Acts not constituting an eviction. — The following have been so held: Failure to remove from other tenement in same building, after notice, notori- ous woman who kept disorderly resort and greatly disturbed lessee, De Witt V. Pierson, 112 Mass. 8; telling lessee he had no right to use part of demised premises, &c.. Fuller v. Ruby, 10 Gray (Mass.) 285; erecting fence in front of premises, so that lessee could not enter except by going over land of third party, Boston & Wore. R. R. Co. v. Ripley, 13 Allen (Mass.) 421 ; repeated trespasses (as carrying away crops, cutting down fruit-trees, removing cook stove, &c., Bartlett v. Farrington, 120 Mass. 284 ; removal of chattels of great size, fitted to the room, but not annexed, Kimball v. Grand Lodge, 131 Id. 63; erection of building on adjoining land, darkening tenant's windows. Palmer v. Wetmore, 2 Sandf. (N. Y.) 316; Myers v. Gemmel, 10 Barb. (N. Y.) 537; demand by rightful owner to pay rent and forbidding to pay to lessor, there 631 *401 RENT. [Ch. X. S. 6. Demise of more than lessor entitled to. — Where a person demised, at one entire rent, lands of which he was seised in being no attornment to the rightful owner, Hawes v. Shaw, 100 Mass. 187 ; mere trespass by lessor, Elliott v. Aiken, 45 N. H. 30 ; Edgerton v. Page, 20 N. Y. 281 (permitting waste water to flow down from leaks in pipes in upper stories) ; Bennet v. Bittle, 4 Rawle (Pa.) oid (putting cattle upon premises, hauling oil manure, &c.) ; entry to repair damages caused by fire, Conn. Mut. Life Ins. Co. i-. U. S., 21 Ct. of Claims, 195; failure to furnish material for repairs, McFarlane v. Pierson, 21 111. App. 566, 569 (per Lacey, J.) ; failure to resist sale of premises for mechanics' lien, Leopold v. Judson, 75 111. 530. In Ogilvie v. Hull, 5 Hill (N. Y.) 52, it was held that lessor's telling lessee's tenant that lease had expired, and advertising premises for lease, thereby causing lessee to lose a sub-tenant, did not constitute an eviction. {/:) Abandonment by lessee; is it essential to a complete eviction? — By the weight of autliority, partial eviction by lessor, even though lessee continue upon remainder of premises, is a complete defence to tlie entire rent. Cliris- topher j;. Austin, 11 N. Y. 216; Leishman v. White, 1 Allen (Mass.) 489; Col- burn V. Morrill, 117 Mass. 262. The above cases are strongly but indirectly supported by Shumway v. Collins, 6 Gray, 227, 232 (see opinion of Bigelow, J., in which he declines to express an opinion whether a quantum meruit would lie as not necessary to the case, but did say that the agreement to pay rent in the lease was entire and could not be severed by the tortious act of the land- lord, &c.), and by Fuller i\ Ruby, 10 Gray (Mass.) 285, 289, in which Justice Metcalf, while not himself giving an opinion (as it was unnecessary to the decision), points out that the English law makes partial eviction without abandonment a complete defence. He shows also that the contrary state- ment in many text-books originated in an English decision, Stokes r. Cooper, 3 Camp. 514 n. since overruled, Upton r. Townend, 17 C. B. 30, 64. They are also supported by the opinion of the English court in the recent case of Boynton v. Morgan, 21 Q. B. D. 101, 106, in which Cave, J., said, "If the liabilit}' still exists, it must, I think, exist as a whole." He goes on to say that the liability exists by express covenant, and that the law will not imply a modified one. Leisliman v. Wliite, 1 Allen (Mass.) 489, squarely decides that lessor after partial eviction (without abandonment) can neither recover rent nor for use and occupation, Bigelow, C. J., saying, " To the claim on the covenant the answer is tlie eviction ; to the demand for use and occupation, tiie answer is tliat the defendant holds "under his lease." He also said (which seems to bear materially upon the question of quantum meruit), "The lease is not terminated by tiie unlawful eviction." Tiie lease in tliis case seems to have been under seal; but in Colburn v. Morrill, 117 Mass. 262 (wlilch, however, seems to have been an action for rent only, and not a quantum meruit), Endicott, J., says, "The fact tliat a tenant has no written lease does not affect ids rights in this respect. He reviews tlie Eng- lish and Massachusetts cases witli the same result stated supra (that abandon- ment is not essential to a complete defence). Tliere is, liowevcr, considerable contrary dicta in the same state, either inadvertent or intentional. Endicott, J., in De Witt v. Pier.son, 112 Mass. 8, 10; Morton, .)., in Bartiett v. Farring- ton, 120 Mass. 284; Gray, J., in Royce v. Guggenheim, 106 Id. 201. 202; and in Lawrence r. French, 25 Wend. (N. Y.) 443, 445; and War.ren v. Wagner, 75 Ala. 188,204, it was held tliat the lessor might recover a quantum meruit, or tiiat the rent should be apiiortioned. 032 Ch. X. S. C] APPORTIONMENT OF RENT. *402 fee, and lands of which he was tenant for life with power of leasing ; and the lease was void as to the latter lands for want of conformity to the power ; the court held, that though the lease as to lands comprised in the power was void, the rent might be apportioned for the remainder (Z). Similarly, where a lessor professes to grant an exclusive right of sporting, and it turns out that he has no such privilege, an appor- tionment of rent will be made on that account (w). In Neal v. Mackenzie, a lessee of 100 acres of land accepted the lease {which was not under seal} and entered upon tlie land; upon his entry he found eight acres in the possession of a person entitled under a prior lease from the lessor, and that person kept possession of the eight acres until half-a- year's rent became due, the lessee continuing in possession of the remainder ; the prior lease was for a term extending beyond the duration of the latter lease : it was held, that the latter demise was wholly void as to the eight acres, and that the rent was not apportionable, the impediment to the lessee taking possession not being analogous to an evic- tion by title paramount (m). But where * the second [*402] demise was under seal, it was held to operate as a grant of the reversion as to the part previously demised (o). Where the tenant cannot obtain possession of all the premi- ses demised, an action of covenant by the lessor against the lessee for the rent cannot be maintained, as in such action the rent cannot be apportioned (^). Where realty and personalty are let together. — Where lands and goods are let at an entire rent, and the tenant is evicted from the lands, no apportionment can be made for the goods as the rent is held to issue from the land alone (^q}. Al- though the rent of furnished lodgings issues out of the realty only (r) : yet where the mortgagor of a house let it fur- (/) Doe r?. Vaughan ?'. Meylor, 2 M. but see Eco. Commrs. of Ireland r. & S. 27G. O'Connor, supra. (in) Tomlinson v. Day, 2 Brod. & (q) Ernot v. Cole, Dyer, 212 b, in B. 080. marg.; Colliiie v. Harding, Cro. Eliz. (w) Neale v. Mackenzie (in error), 606 ; 13 Co. R. 57 ; Moor, 544 ; 1 M. & W. 747. Cadogan v. Kennett, Cowp. 432 ; Gilb. (o) Ecc. Commrs. of Ireland r. Rents, 175. O'Connor, 9 Ir. Com. L. R. 242. (r) Newman v. Anderton, 2 Bos. & (p) Holgate V. Kay, 1 C. & K. 341, P. New R. 224. 633 *403 RENT. [Ch. X. S, 6. nished, and the tenant, after notice, paid the whole rent to the mortgagee, it was held, that the mortgagor might still recover for the use of the furniture (s). Where A. demised to B. certain mines for thirty years, with licence to use an adjoining railway in common with A., and during the term A. prevented B. from using the railway, it was held, that this created no suspension of the rent, because the rent issued out of the thing demised, i.e.^ the mines and minerals, and not out of the easement to use the railway (t). "Where land is lost by overflowing of sea. — The loss of land to the lessee by the overflowing of the sea appears to be another case in which the tenant may claim apportionment : but the loss must be total pro tanto, for if there be merely a partial irruption of water, the exclusive right of fishing, which the lessee would thereupon have, Avould be such a perception of the profits of the land as to annul his claim («<). Apportionment under Lands Clauses Act. — Where part of land on lease is taken for public purposes under the powers of the Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), the 119th section of that act provides that " if any lands shall be comprised in a lease for a term of years unexpired, part only of which lands shall be required for the purposes of the special act, the rent payable in respect of the lands comprised in such lease shall be apportioned between the lands so required and the residue of such lands, and such apportionment may be settled by agreement between the les- sor and lessee of such lands on the one part, and the pro- moters of the undertaking on the other part ; and if such apportionment be not so settled by agreement between the parties, such apportionment shall be settled b}'' two justices ; and after such apportionment the lessee shall, as to [*403] all future accruing rent, be liable only as to so * much of the rent as shall be so apportioned in respect of the lands not required for the purposes of the special acts ; and, as to the lands not so required^ and as against the lessee, tlie lessor sliall have all the same rights and remedies for the (s) Salmon v. Matthews, 8 M. & W. (0 Williams v. liny ward, 1 E. & E. 827. 1040; 28 L. J., Q. W.'MA. (ji) 1 Roll. Abr. 2;3(;, 1. 40. 634 Ch. X. S. 6.] APPORTIONMENT OF RENT. *403 recovery of such portion of rent, as previously to such appor- tionment he had for the recovery of the whole rent reserved by such lease ; and all the covenants, conditions and agree- ments of such lease, except as to the amount of rent to be paid, shall remain in force with regard to that part of the land which shall not be required for the purposes of the special act, in the same manner as they would have done in case such part only of the land had been included in the lease. Apportionment under other statutes. — Where part only of lands comprised in a lease for an unexpired term is conveyed, or agreed to be conveyed, for sites for schools for the educa- tion of the poor under the 4 & 5 Vict. c. 38, the rent and the fine upon renewal may, by 12 & 13 Vict. c. 49, s. 1, be appor- tioned between the parties interested. By the 17 & 18 Vict. c. 32, where parts of lands in lease are taken for the purposes of the Church Building Acts, rents and fines on leases and renewals may be apportioned. Under the 17 & 18 Vict. c. 97, for amending and extending the acts for the inclosure, exchange and improvement of land, rents and other certain payments may be apportioned. By 17 & 18 Vict. c. 116, to facilitate the management and improvement of episcopal and capitular estates in England, on the sale or exchange of part of lands comprised in any lease or copy of court roll, the rent must be apportioned. (b) Apportionment in respect of Time. At common law rent could not be apportioned in respect of time, and therefore when S, tenant for life granted a lease for years, and died on any day not being rent-day, the whole rent from the last rent-day became lost, and the lessee retained the land without paying anything for it until the next rent-day (x'). This injustice has been remedied by a series of statutes culminating in the Apportionment Act, (x) Clun's case, 10 Rep. 127 b; the preamble to 11 Geo. 2, c. 19, s. 15, and see id. Tudor's Real Property it seems that although the executor Cases, at p. 249, where the whole law of the tenant for life could recover of apportionment before the Act of nothing, the reversioner could recover 1870 is learnedly discussed. From in respect of use and occupation. 635 *404 RENT. [Ch. X. S. 6. 1870, and as that act does not repeal the preceding statutes, it will be well to consider their effect shortly before setting out at length the provisions of the act which practically supersedes them. The first statute, 11 Geo. 2, c. 19, s. 15, enacted that where any tenant for life should die before or on the day on which any rent was payable upon any demise, which deter- [*404] mined on the death of such tenant *for life, his execu- tors or administrators might, in an action on the case, recover from the subtenant, " if such tenant for life die on the day on which the same was made payable, the whole, or if before such day, then a proportion of such rent, accord- ing to the time such tenant for life lived, of the last year or quarter of a year, or other time in which the said rent was growing due, making all just allowances, or a proportional part thereof respectively." It was held, under this statute, that no apportionment of rent took place as between the heir and personal representative of a tenant in fee (^). The courts, however, consider it as a beneficial statute, and put a liberal construction upon it, holding, for instance, that the representatives of a tenant in tail, who had demised the entailed estate by a lease which was void against the remain- derman, wer§ entitled to ari apportionment of the rent, even when the entire amount had been previously paid to the remainderman (z). By 4 & 5 Will. 4, c. 22, s. 1, rents payable on any demise which determined on the death of the person making the same (although such person was not strictly tenant for life thereof), or on the death of the life or lives for which sucli person was entitled to such hereditaments, were brought within the operation of 11 (leo. 2, c. 19, s. 15. By sect. 2 of the same act, it was enacted that all rents- service reserved on any lease by a tenant in fee or for any life interest, or by any lease (a) granted under any power, (;/) Re CIulow, 3 Kay & J. 089; 20 ?>M, n. ; Ex parte Smyth, 1 Swnnst. L. .J. Ch. 513. 337 ; Vtrnon v. Vernon, 2 Bro. C. C. (r) Whitfiild V. Pindar, C. V. 1781, 050; Hawkins v. Kelly, 8 Ves. 308; cited 8 Ves. 311. See also Symons Ansley ?•. Wadswortli, 2 "V. & B. 331. I). Symons, Madd. & (Jeld. 207 ; Chirk- («) Granted after the passing of son V. Earl of Scarhoroiigh, 1 Swanst. the act, i.e. 10 June, 1834. G3G Cii. X. S.6.] APPORTIONMENT OF RENT. *405 and all rents-charge and other rents, and all other payments of every description, in the United Kingdom coming due at fixed periods under any instrument executed after the pass- ing of the act, or (being a will) coming into operation after the passing of the act, should be apportioned so that on the death of any person interested in any such rents, &c., or on the determination by any other means whatsoever of the interest of any such person he, or his executors, administra- tors or assigns, should be entitled to a proportion of such rents, &c., according to the time which should have elapsed from the commencement or last period of payment thereof respectively, including the day of the death of such person, or of the determination of his interest ; and that every such person, his executors, &c., should have the same remedies at law and in equity for recovering the apportioned parts of the said rents, &c., when the entire portion shall become due, as he would have had for recovering the entire rents, &c. It was held that this act applied to rents and royal- ties payable * periodically and reserved by leases [*405] granted after the passing of the act, in pursuance of a power created before or since the act (5) ; but not to rents reserved under oral demises (e) ; nor as between the heir- at-law and personal representatives of a tenant in fee (t?) ; nor as between a mortgagee tenant for life, who had not entered, and remaindermen, so as to give the mortgagee a right to rents which he would not have had until entry if the tenant for life had lived (e), and it was said not to apply where the party entitled to the rent himself determined the lease during a current quarter (/). But it was held to apply where a lessee of mines, having power to determine the demise by a six months' notice expiring at any time, gave such notice to the lessor ((/). (6) Plummer i-. Whiteley, 1 Johns. {d) Re Roger's Trusts, 30 L. J., Ch. 585; 29 L. J., Ch. 247; Knight i'. 153. Broughton, 12 Beav. 312 ; Wardroper (e) Paget v. Marquis of Anglesea, V. Cutfield, 33 L. J., Ch. G05 ; Llewel- L. R., 17 Eq. 283; 43 L. J., Ch. 437. lyn V. Rous, L. R.,2 Eq.27; 35 Beav. (/") Oldershaw v. Holt, 12 A. & E. 591. 590 ; 4 P. & D. 307. (c) Mills V. Trumper, L. R., 4 Ch. {q) Bridges v. Potts, 17 C. B.,N. S. 320. 314 ; 33 L. J., C. P. 338. 637 *406 KENT. [Ch. X. S. 6. Apportionment Act, 1870. — The law of apportionment in respect of time has been extended and simplified in recent times by the Apportionment Act, 1870 (33 & 34 Vict. c. 35), which is retrospective (A). All rents accrue from day to day. — By this act, which recites that rents are not at common law apportionable, "and for remedy of some of the inconveniences divers statutes have been passed" (being 11 Geo. 2, c. 19, 4 & 5 Will. 4, c. 22, 6 & 7 Will. 4, 0. 71, 14 & 15 Vict. c. 25, and 23 & 24 Vict. c. 154), and that "it is expedient to make provision for the remedy of all such mischiefs and inconveniences," it is enacted (sect. 1) that "all rents (i), annuities, divi- dends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be appor- tionable in respect of time accordingly." ^ Apportioned part payable -when whole due. — By sect. 2, " the apportioned part of any such rent," &c., " shall be pay- able or recoverable in the case of a continuing rent," &c., "when the entire portion of which such apportioned part shall form part shall become due and paj-able, and not before ; and in the case of a rent," &c., " determined by re-entry, death, or otherwise, when the next entire portion of the same would have been payable if the same had not been so determined, and not before." Remedies for recovering apportioned part. — By sect. 4, "all persons and their respective heirs, executors, administrators and assigns, and also the executors, administrators and assigns respectively of persons whose interests determine with their own deaths, shall have such or the same [*406] remedies at law and * in equity for recovering sueh apportioned parts as aforesaid when payable (allowing (h) Capron v. Capron, L. R., 17 Eq. and rent-seek, and also tithes and all 288 ; and see note (p),post. periodical payments or renderinfjs in (/) By sect. 5 tiie word "rents" lieu of or in tiie nature of rent or includes " rent-service, rent-charge, tithe." ' In Ontario, rents are apportionable in respect of time as if accruing from day to day. Kev. Sts. Ch. 14;J ss. 2-0 (Act .".7, Vict. Ch. 10) ; Houlton v. Blake, 12 Ont. .')32; Barnes v. Bellamy, Id. 542. Also in many cases in Massachusetts (Tub. Sts. c. 121^ and California (C C. P. sec. 1!);5:)), &c. 038 Ch. X. S. G.] APPORTIONMENT OF RENT. *406 proportionate parts of all just allowances) as they respectively would have had for recovering such entire portions as afore- said if entitled thereto respectively : provided (/c) that such persons liable to pay rents reserved out of or charged on lands or other hereditaments, of any tenure, and the same lands or other hereditaments, shall not be resorted to for an}^ such apportioned part forming part of an entire or continuing rent as aforesaid specifically ; but the entire or continuing rent, including such apportioned part, shall be recovered and received by the heir or other person who, if the rent had not been apportionable under this act, or otherwise, would have been entitled to such entire or continuing rent: and such apportioned part shall be recoverable from such heir or other person by the executors or other parties entitled under this act to the same." By sect. 7, " the provisions of this act shall not extend to any case in which it is or shall be expressly stipulated that no apportionment shall take place " (^). Application of Apportionment Act, 1870. — It has been held that this act applies to a specific devise of real estate (wz), and, as between landlord and tenant^ to rent under a lease assigned over by a trustee in bankruptcy (n) ; and it is indeed hard to see what is not included in its very compre- hensive terms. It has been intimated that the act is not retrospective (o), but the preponderance of authority (^) points to an opposite conclusion, and to the application of the act to a will made before, but coming into operation after it. As between landlord and tenant. — The wide terms of the (Jc) This Proviso substantially fol- (o) In Jones v. Ogle, L. R., 8 Ch. lows the corresponding proviso of 4 192 ; 42 L. J., Ch. 334, per Lord Sel- & 5 Will. 4, c. 22, s. 2. borne, C. (/) The words "it is" are new; (/>) Capron ?;. Capron, L. R., 17 Eq. otherwise the section corresponds with 288 ; 43 L. J., Ch. 677 ; 29 L. T. 82(5 ; 4 & 5 Will. 4, c. 22, s. 3. Re Cline's estate, L. R., 18 Eq. 213; (m) Hasluck v. Pedley, L. R., 19 30 L. T. 249, per Malins, V.-C. ; Has- Eq. 271; 44 L. J., Ch. 143; 23 W. R. luck v. Pedley, L. R., 19 Eq. 271; 44 155. L. J., Ch. 143; 23 W. R. 155, per Jes- (n) Swansea Bank ;;. Thomas, L. sel, M. R. ; Constable r. Constable, R., 4 Ex. D. 94; 48 L. J., Ex. 344; L. R., 11 Ch. \). C81 ; Rosemgrave v. 40 L. T. 558 ; 27 W. R. 491. Burke, 1 Ir. R. Eq. 186. 639 *407 RENT. [Ch. X. S. 7. act seem to allow the recovery of rent pro rata in the ordi- nary case where rent is payable at fixed periods, and the ten- ancy is determined in the middle of a period. It is clear that such rent is not recoverable at common law (^), and it was said not to be recoverable under the Act 4 & 5 WilL 4, 0. 22, s. 2 (r). But the Act of 1870, in sect. 3, speaks of a rent "determined by re-entry," which seems intended to appl}^ to a forfeiture, and the case is clearly within the words of sect. 2. And although it might be argued that it is not within the purview of the act generally, this argu- [*407] ment appears *to be disposed of by Swansea Bank v. Thomas (s), in which case the trustee in liquidation of the lessee, having assigned over during a current quarter, was held liable under the act to pay to the lessor a propor- tionate part of the quarter's rent up to the time of the assign- ment over ; and by Re South Kensington Stores (i), in which case the landlord of a liquidating company, whose business was carried on by the liquidator, was allowed proof for part of a quarter's rent up to date of petition, and distress for the remainder. Sect. 7. — CoiitinuMice of Lessee s Liability. After assigning. — The lessee has both a privity of contract and of estate ; and though he assign, and thereby destroy the privity of estate, the privity of contract continues, and lie is liable, in an action of covenant, for the rent, notwith- standing the assignment (ii)} After quitting possession. — A tenant remains liable for rent, unless he deliver up complete possession of the prem- ises, or the landlord accept of another in his room (.r).^ But (r/) See Slack v. Sharpe, 8 A. & K. 1, p. 108 and note; post, Appendix ?.m ; (irimniin v. Lepso, 8 B. & C. ;324. B., Sect. 12. (r) Oklershavv v. Holt, 12 A. & E. (0 L. R-, 17 Ch. I). Ifil ; 44 L. T. 590. 471. («) L. R., 4 Ex. D. 04. Sec a form (») Eaton v. Jacqnos, 2 Doug. 455; providing for payment pro ratci in Auriol v. Mills, 4 T. H. 04. case of re-entry, I)av. I'rec. vol. 5, pt. (.c) Harding v. Crcliiorne, 1 Esp. ' Sec (intr, Cliap. VII., sec. 5, note, " ElTcct of assigiinicnt of term." '^ See mite, Ch. VIII., sec. 3 (b), note, " Smreiider liy operation of law." 040 Ch. X. S. 7.] CONTINUANCE OF LESSEE'S LIABILITY. *408 where a lessee quitted, in the middle of liis term, apartments which he had taken for a year, and the lessor let them to another tenant, it was held, that she could not recover in an action for use and occupation against the lessee for a subse- quent portion of the year, during which the apartments had been unoccupied (y) : though if a tenant abandon premises without notice, the landlord may recover subsequent rent, notwithstanding he has put up a bill in the window, and otherwise endeavoured to obtain another tenant (2). Where a tenant from year to year, at a rent payable half-j-early, without giving any notice to the landlord, quitted the prem- ises at the expiration of the current year; and before the next half-year expired the landlord let the premises to an- other tenant, who occupied the same ; it was held, that the landlord was hot entitled to recover rent from the first ten- ant from the expiration of the current year, when he quitted the premises, to the time when the landlord re-let the same to the second tenant («). If the landlord of lodgings enter into and use the apartments whilst the tenant is in posses- sion, he is deprived of his right to rent ; but if the tenant have abandoned the possession during his tenancy, the landlord's lighting fires in the rooms, or even * using [*408] the rooms, will not deprive him of his right to rent (^). Where the landlord forcibly turned out a man left in possession by the tenant, and who was personally offensive to the landlord, it was left to the jury to say whether such expulsion was a mere personal trespass, or done for the purpose of turning the tenant out of posses- sion (c). Where, during a current quarter, some dispute arose between the lessor and lessee of a first and second floor of a house demised for a year, at a rent payable quarterly ; and the lessee having told the lessor that she would quit immediately, the latter answered that she might go when she 67; Ibbs v. Eichardson, 9 A. & E. (z) Rcdpath ?;. Roberts, 3 Esp. 225. 849; and see Henderson r. Squire, («) Hall r. Burgess, 5 15. & C. 332. h. R., 4 Q. B. 170 ; and Chap. XX., (h) Griffith v. Hodges, 1 C. & P. post. 419. (?/) Walls V. Atcheson, 3 Bing. 402; (c) Henderson v. Mears, 1 F. & F. 2 C. & P. 268. 636. 641 *408 RENT. [Ch. X. S. 7. pleased ; upon which the lessee did quit, and the lessor accepted possession of the apartments ; it Avas held, that he could neither recover the rent wliich by virtue of the original contract would have become due at the expiration of the current quarter, nor rent jjro rata for the actual occupation of the jDremises for any 2>eriod short of the quarter ((7). Where premises are destroyed by fire. — Where the lessee covenants to pay rent at stated periods (without any excep- tion in case of fire), he is bound to pay it, though the house be burnt down ; for the land remains,^ and he might have provided to the contrary by express stipulation, if both parties had so intended. And this rule applies, although the lessee's covenant to repair contain an exception (/) in case of fire (/). Where premises were destroyed by fire during a tenancy under a written agreement, and rendered no longer habitable, the landlord was held to be still entitled to recover rent, accruing due after the fire, in an action for use and occupation (//). So also a tenant from year to year of a second floor, under a parol agreement, has been held liable in the same form of action (A) : and where the rent (rf) Grimnian v. Leg^e, 8 B. & C. 1 Ld. Rnyin. 1477 ; Belfour v. Wes- 324. ton, 1 T.K. 310. And see Weigall (e) This exception lias been held v. Waters, G T. R. 488; Hare i'. not " usual." Sliarp r. Milligan, 23 Groves, 3 Anst. 687, and the cases Beav. 419. As to the construction infra. of the exception in relation to rent, (y) Baker v. lloltzappfol, 4 Taunt, see Bennet v. Ireland, E. B. & E. 326 ;" 45. 28 L. J., Q. B. 48. (/() Izon i-. Gorton, 5 Bing. N. C. (/) Monk f. Cooper, 2 Stra. 7G3 ; 501. 1 Destruction of demised buildings by fire, Gibson v. Perry, 29 Mo. 245; Gates v. (ireen, 4 Vm^c (N. Y.) 355, ;!58 {per Clinn. Walworth) ; IIa\- lett I'. Wylie, 3 Johns. (N. Y.) 44; Magaw v. Lambert, 3 ]>a. St. 444; Hazlett r. Powell, 30 Pa. St. 293, 298; Fisher v. Milliken, 8 Pa. St. Ill, 121 {per Gibson, C. J.) ; Fowler v. Bott, 6 Mass. 03 ; Kinfrsbury v. Westfall, 61 N. Y. 350, or other cause, Davis' Adm'r v. Smith, 15 Mo. 464, is (at common law) no defence to a suit for rent, except (as is held in America) in case of a demise of part of a buildinji; (as a room, chamber, basement, &c.). In latter case rent is discharged because, there bein}; no realty, there is a total destruc- tion of the demised tiiin<,'. See otite, Ch. VIII., sec. 1, note, "Termination by total destruction." fn Ohio it is j)rovid('d 1)y statute that if a buihliiij^ is burned or injured, without fault of tenant, .';o as to be unlit for oc(;up;uK'y, the rent shall cease find the lessee must surrernler the premises. Hev. Sts. (1880) sec. 413. Louisiana and QurUc also have special provisions for such cases. G42 Ch. X. S. 7.] CONTINUANCE OF LESSEE'S LIABILITY. *409 for similar lodgings was payable quarterly, lie was held liable for rent up to the time of the lire at least (i). The tenant in such latter case, to get rid of his liability, should give a regular notice to quit. The reason is, that when the law creates a duty, and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him : but when the party, hy his otvn corir tracts creates a duty or charge upon himself he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it when makincf the contract. In some old cases the Court of Chancery relieved the lessee, and granted an injunc- tion to restrain the landlord from bringing an * action [*409] on the covenant for rent (/c) ; but the modern prac- tice was clearly otherwise (Oi ^^ that no equitable defence could be raised by virtue of the Judicature Act. It has even been held that a tenant who has covenanted to rebuild, has no equity to compel his landlord to expend money received by the landlord from an insurance office, on the demised premises being burnt down (ni). But it seems that the Act 14 Geo. 3, c. 78, s. 83, which requires the governors of an insurance office, " upon the request of any person interested" (w), to cause insurance money to be laid out towards rebuilding, may be taken advantage of by tenants as well as by landlords. It is, however, always desirable to provide for the case of fire by special covenants, and this is frequently done (o). After eviction by lessor, rent is suspended. — By an entry of the lessor, or any one claiming through him, into any part of the demised premises to take possession thereof, the rent is suspended (^) : ^ and therefore, as to subsequently (c[) (i) Packer v. Gibbons, 1 Q. B. 421. followed with approval in Lofft v. (k) Brown v. Quilter, Arab. 919 ; 2 Dennis, 1 E. & E. 474 ; 28 L. J., Q. B. Eden, 210; Canulen v. Morton, Id. 1G8. 219; citedlSVes. 118; SteeU'. Wright, (v) Post, Chap. XVII. cited 1 T. R. 708. (o) Post, Sect. 8. (/) Holtzappfel v. Baker, 18 Ves. {})) Morrison 7-. Chadwick, 7 C. B. 115. 260; G 1). & L. 507. (m) Leeds v. Cheetham, 1 Sim. 140 ; (7) Boodle v. Cambell, 7 M. & G. 386. ^ See ante, sec. 6, note, " Eviction of lessee." 643 *410 RENT. [Ch. X. S. 7. accruing rent the eviction will be a bar ; but if the lessor enter by virtue of a power reserved, or even a mere tres- passer, if the lessee be not evicted, it will be no suspension of the rent (r). Where the lessor caused two messuages, let separately, which had been destroyed by fire during the term, to be rebuilt in such a manner as to destroy their identity ; it was held, that such alterations in the subject- matter of the demises amounted to evictions, and that the tenants were not liable for subsequent rent (s). If a lessor serve a writ in ejectment under a clause that for any breach of covenant the lease shall determine and be void, he can- not maintain an action for rent subsequently accruing or for breaches of covenant (?). If a lessor has no title, and the lessee is evicted b}^ title paramount, he may plead that as a defence to an action by the lessor for subsequent rent (^u). If a party having a paramount legal right to evict a tenant, goes to him and claims his right, on which the tenant attorns to him, it seems to be equivalent to an expulsion (a;). Where lands were demised by parol, and the lessee only entered on and had possession of part, in conse- quence of the lessor having previously demised the residue to a third person ; it was held, that the want of possession was equivalent to an eviction by the tortious act of the [*410] lessor, and was not in the nature of an eviction * by an elder title, and that therefore the rent was not apportionable, and could not be distrained for (//). But where the demise is by indenture it will operate as a grant of the reversion as to such of the lands as are in the posses- sion of a previous tenant, and a demise of tlie residue of the lands (z). (r) Bull. N. p. 105, 177; Hunt v. 15 M. & W. 571 ; Emery v. Barnott, Cope, Cowp. 24:}; Newton v. Allin, 1 4 C. B., N. S. 423; but see Delaney Q. B. 518. '.'. Fox, 2 C. B., N. S. 7()8. (s) Upton V. Towncnd and Upton (.'/) Ni^^le '•. Mackenzie (in error), V. Greenlees, 17 C. B. HO. 1 M- & W. 747; Watson i-. Waud, 8 CO Jones V. Carter, 15 M. & W. 718. Excli. .1:55. C»/) Cuthhertson v. Irvinp, 4 II. & (') 'i'^ccl. Comnirs. of Ireland v. N. 742; 6 Id. 135; 28 T>. J., Ex. 306. O'Connor, 9 Ir. Com. L. U. 242. (x) Mayor, &c., of Poole v. Whitt, 644 Ch. X. S. 8.] STIPULATION FOR ABATEMENT. *410 Eviction by mere trespass does not suspend rent. — It is essentially necessary, in order to suspension of rent, that such eviction be not the effect of a mere trespass, for in such case the lessee is not excused from the payment of his rent: thus, where in an action of debt for rent the lessee pleaded, that Prince Rupert, an alien born, Avith an hostile army, had entered upon the lessee, and expelled him out of possession, the Court of King's Bench held, that he was still bound to pay his rent (a). Sect. 8. — Stipulation for Abatement of Ment, in case of Fire, ^c. Where there was a proviso that in case the demised prem- ises or any part thereof " should be destroyed or damaged by fire, flood, storm, tempest, or other inevitable accident," the rent should cease or abate, &c., it was held that an exclusion of the tenant from the premises by the landlord executing repairs in pursuance of a covenant in the lease did not fall within the proviso (li). (a) Paradine v. Jane, Aleyn, 26; (b) Saner v. Bilton, 7 Ch. D. 815; Style, 47 ; and see Tasker v. Bull- 47 L. J., Ch. 267 ; 38 L. T. 281 ; 26 man, 3 Exch. 351. W. R. 394. 645 [*411] * CHAPTER XL DISTRESS FOR RENT. SECT. PAGE 1. Definition of Distress . . . 441 To what Rents applicable . 412 2. Conditions precedent to Dis- tress 414 Tender of Rent .... 414 Actual Demise at fixed Rent 417 3. Restraining Distress by In- junction 420 4. Who may distrain .... 421 (a) Reversioners .... 421 (b) Persons not having the Reversion 426 (c) Tenants pur autre vie . 426 (d) Executors and Adminis- trators 427 (e) Husbands 427 (f) Corporations .... 428 (g) Persons having special Powers 428 (h) Receivers and Agents . 429 (i) Sequestrators .... 430 5. Distress on agricultural or pastoral holding, or mar- ket garden 430 6. Bankrupt Tenant .... 432 7. Company in Liquidation . . 432 8. Things Distrainable . . . 4-34 (a) Rules and Exemptions . 434 (b) Corn and Crops . . . 4-36 9. Exemptions from Distress . 438 (a) Fixtures, &c 438 (b) Animals Fera) Natura) . 439 (c) Goods sent to Trader . 440 (d) Things in actual Use . 442 SECT. PAGE 9. — (^Continued) (e) Things in Custody of Law 442 (f) Tlie Goods of Lodgers . 445 (g) Railway Rolling Stock . 447 (h) Hired Machinery and Breeding Stock . . 448 (i) Beasts and Sheep . . . 449 (j) Tools of Trade .... 451 (k) Agisted Stock .... 452 10. Proceedings in Distress . . 452 (a) When to be made . . . 452 (b) What arrears recover- able 454 Agricultural Hold- ings 454 (c) Where to be made . . 456 (d) Distress Warrant . . . 458 (e) Fraudulent Removal . . 467 (f) How impounded . . . 473 (g) Notice of Distress . . 477 (h) Appraisement and Sale . 479 (i) Expenses . . . ' . . . 482 (j) Surplus Proceeds and un- sold Goods .... 485 11. Second Distress 485 12. Rescue and Pound Breach . 487 IVote on Distress Damage Feasant 489 13. Satisfaction of one Year's Arrears by Execution Cred- itor 490 (a) High Court 490 (b) County Court .... 496 (c) Admiralty Process . . 497 Sect. 1. — Definition of Distress. A DLSTRESS is one of the most ancient and effectual reme- dies for the recovery of rent.^ It is the taking, without legal ' The law of distress in America. — (a) Where existing. — The law of distress with greater or less modifications exists in Nova Scotia (regulated by 646 Cn. XI. S.I.] DEFINITION OF DISTRESS. *412 process, cattle or goods as a pledge to compel the satisfaction of a demand, the performance of a duty, or the redress of an injury. The act of taking, the thing taken, and the remedy generally, having been called a disticss ; an inaccuracy which the older text-writers usually avoided (a). Originally a pledge. — The power of distress appears to have been derived from the ancient feudal law, and to have been substituted for a forfeiture of * the ten- [*412] ant's estate (^).^ (a) See Bullcn on the Law of Dis- wrongful distress are considered post, tress, A.D. 1842. The remedies for Chap. XII. (i) Gilb. Rent, 5, 92. Rev. Sts. chap. 125) ; New Bi-unswick (Cons. Sts. chap. 83) ; Ontario (1 Rev. Sts. chap. 148); Quebec (Civil Code, Art. 1619, et seq.) ; Manltoha ; New Jersejj (Rev. Sts. pp. 308, 314) ; Pennsi/lvuiiia (2 I'urdon's Dig. pp. 1011, 1015) ; Ddaware (Laws of Del. chap. 120) ; Mar;/land (Rev. Code, Art. 67, sees. 8-23) ; Virginia (Code, sees. 2790-2795) ; West Vinjinia (Code, chap. 93, sees. 7-15) ; District of Columbia; South Carolina (Rev. Sts. sees. 1823-1824) ; Georgia (Code, sec. 4082, et seq.) ; Florida (Dig. chap. 137) ; Mississi/ipi (Rev. Code, sec. 1301, etseq., in a modified or statutory form) ; Louisiana (Civil Code, Art. 2705-2709 ; Rev. Laws, sees. 2159-2165) ; Texas (Rev. Sts. chap. 58, Art. 3107-3122 b) ; Indiana (at least it has been in existence, Applegate v. Crawford, 2 Ind. 579; Wright V. Mathews, 2 Blackf. 187); Illinois {Rev. Sts. chap. 80); Kentuckij (Gen. Sts. chap. 06). (i) Where not existing. — It has been abolished by statute in New York (Sts. 1846, chap. 274) ; Wisconsin (Rev. Sts. sec. 2181, Laws of 1866, p. 77) ; Minnesota (Sts. chap. 75, sec. 39) ; and Utah (Comp. Laws, chap. 8, Art. 1203). It is obsolete in New England (Potter v. Hall, 3 Pick. (Mass.) 368, 373; 374 {per Parker, C. J.) ; Wait Appellant, 7 Id. 100, 105 {per Parker, C. J.) ; 2 Taylor's Land. & Ten. sec. 558) ; North Carolina (2 Taylor L. & T. sec. 658; Dalgleish v. Grandy, Com. & Nor. (N. C.) 22; Deaver v. Rice, 4 Dcv. & B. (N. C.) 431; Harrison r. Rick, 71 N. C. 7, 12 {per Rodman, J.)) ; and Missouri (Crocker v. Mann, 3 Mo. 472 ; Kamerick v. Castleman, 23 Mo. Aj)p. 481). There are no statutory provisions concerning it in Alabama, Tennessee, and Oiiio, 2 Taylor's Land. & Ten. sec. 558, except as to the city of Mobile, Dumes' Adm'r v. McLosky, 5 Ala. 239,240 {per Ormond, J., under Act of Jan. 17, 1834), and special provision as to landlord's lien on crop in Ohio, 2 Taylor's Land. & Ten. sec. 558. 1 American substitutes for distress. — {: Franklin, 3 J. J. Marsh. (Ky.) 477; Lougee v. Colton, 9 Dana, 123). In Cf-onjid the pro[)erty of tenant may be distrained wherever found (Code, sec. 4082; Hale i: Burton, Dudley ((ia.) 105; Holland r. Brown, 15 Ga. 113; McMahan v. Tyson, 23 Id. 43; Thornton /•. Wilson, 55 Id. 007). Ch. XI. S. 1.] DEFINITION OF DISTRESS. *413 to the landlord, a contract by him may be inferred not to distrain cattle put on the demised land to consume the eatage (^^). Rent under agreement for lease. — Although a distress may be taken for any rent, including that due from tenants at will (^), it cannot at common law be made for the rent men- tioned in a more agreement for a lease, not amounting to an actual demise, where no tenancy at an agreed rent has been created expressly or impliedly by the payment of rent or otherwise (/•). Where a tenant holds over on sufferance only, as there is then no "agreed rent," a distress cannot lawfully be made, but the remedy is by an action for use and occupation (s). Rent reserved in an assignment. — If a mere termor affect to grant a lease for a term exceeding his own in duration, and to reserve an annual rent, that would operate as an assignment of his term (Q, and the stat. 4 Geo. 2, c. 28, s. 5 (m), does not give power to distrain for such a rent (x). Fee farm rents. — With respect to fee farm rents, it has been held that a distress is not incident to them, unless the case be brought to within the 4 Geo. 2, c. 28, s. 5 (?/). Rent of incorporeal hereditaments. — A distress cannot gen- erally be made for a rent reserved upon a letting of incorpo- real hereditaments, as tithes, commons or tolls (z) ; but a poAver of distress may be expressly reserved in such lease in like manner as in the grant of a rent-charge. Furnished apartments. — A distress may be made for the whole rent reserved on a letting of furnished apartments, because in contemplation of law the rent issues out of the (;)) Horsford w. Webster, sj/jora. 280; Jenner v. Clegg:, 1 Moo. & R. (7) Lit. s. 72; Doe d. Diivies v. 213; Williams v. Stiven, 9 Q. B. 14. Thomas, 6 Exch. 858 ; Doe d. Dixie (0 Ante, Ch. VII. V. Davies, 7 Exch. 91 ; Turner v. (u) Ante, 377. Barnes, 2 B. & S. 435 ; 31 L. J., Q. B. (x) Langford v. Selmcs, 3 K. & J. 170. 220; 3 Jur., N. S. 859. (/•) Dunk V. Hunter, 5 B. & A. 322. (y) Bradbury v. Wright, 2 Doug. As to effect of Judicature Act on this 624 ; Musgrave )'. Emnierson, 10 Q. B. doctrine, see Walsh v. Lonsdale, L. 326; Smith L. & T. 189 (2nd ed.). R., 21 Ch. D. 9, and p. 86, ante. (-) Co. Lit. 47 a : Jewel's case, 5 (s) Alford V. Vickery, Car. & M. Co. R. 3; Smith L. & T. 116 (2nd ed.). 651 *414 DISTRESS FOR RENT. [Ch. XI. S. 2. realty only, and not out of the furniture (rt)-^ ^^^ where the owner of a factory lets standings therein for looms, and supplies the power of working them at so much per week (there being no demise of the room), he cannot distrain for the weekly payments as for rent (6). It is otherwise where a definite part of the room is demised, with the use of steam- power for working machines, &c. (c). Liquidated damages. — Liquidated damages or forfeitures for breaking up pasture or meadow land, or for carrying hay, straw, &c., off the demised premises, at certain fixed sums in proportion to the extent of the breach, " to be recov- ered by distress as for rent in arrear," may be distrained for, though the lease is not under seal (tZ). [*414] * Double rent. — Double rent payable under 11 Geo. 2, c. 19, s. 18, may be distrained for (e) ; and the exception, once said to obtain in the case of a weekly tenant (/), appears to have been founded on a mistake (^). Manual service. — A distress may be made where the ten- ant holds by the service of cleaning the parish church, or of ringing the church bell at stated times, or by other manual services (7i) ; but in such case the distress cannot be sold. Sect. 2. — Conditions precedent to Distress. Right to distrain. — Where the right to disti'ain exists, nothing but payment, or something equivalent to payment, such as a tender of the arrears, or a release under seal, will be sufficient to take it away : even attending upon the land (n) Newman v. Anderton, 2 Bos. & (f) Johnstone v. Iludlestone, 4 B. P. New R. 224. & C. 022. As to "double rent," see (h) Hancock v. Austin, 14 C. B., N. post, Chap. XX., Sect. 2 (c). S. 634; .'',2 L. J., C. P. 252; and see (/) Sullivan v. Bishop, 2 C. & P. Edinondson v. Nuttall, 17 C. B., N. 359. S. 280. ((/) Bullen on Distress, 116, note; (r.) Selliy v. Greaves, L. K., 3 C. P. 2 Chit. PI. 344, note {>•), (7th ed.). 694 ; 37 L. J., C. P. 251. (/<) Doe d. Edney v. Benham, 7 Q. (d) Pollitt V. Forrest, 1 C. & K. B. 976. 560; 11 Q. B. 949. ^ Rents "may issue out of lands . . . and their furniture." Lowrie, J., in Micklc V. Miles, 31 Pa. St. 20 (a stocked dairy farm). 652 Cn. XI. S. 2.] CONDITIONS PRECEDENT TO DISTRESS. *415 on the proper day to pay the rent will not destroy the right to distrain unless a tender be actually made (i). Allowance of deductions. — But where a landlord's receiver allowed the tenant to make a deduction of payments for land tax every year for seventeen years, greater than the landlord was liable to pay, the landlord knowing or having the means of knowing all the facts ; it was held, that he could not dis- train for the amount erroneously allowed, for such allowance operated as payments^ though the receipt given every year showed the amount paid and the amount deducted (Jc). Taking security, &c. — We have already seen that it has been held that neither taking a security for rent (?),^ nor an agreement to take interest (wi), nor a set-off to an equal or greater amount than the rent in arrear (w), can take away the landlord's right to distrain. Tender before distress. — A distress cannot lawfully be made after the full amount of rent really due has been ten- dered to the landlord, or to his agent having authority to receive the rent (o). If the landlord or his agent sign a dis- tress warrant and deliver it to the broker, but before he can effect an entrance to distrain, the tenant or his agent tenders the rent without expenses to the landlord or his agent, it will be illegal afterwards to execute the distress warrant, and all parties concerned * therein will be liable to [*415] an action of trespass (p) or trover {q). Tender before impounding. — After the distress has been made, but before it is impounded., the tenant may tender to (i) Home V. Lewin, 1 Ld. Rayni. Davenport, 5 C. & P. 531 ; and see 639; 1 Salk. 583; 12 Mod. 352. Pratt v. Keith, 33 L. J., Cli. 528; 10 (Jc) Branston v. Robins, 4 Bing. 11 ; Jur., N. S. 305. Waller i'. Andrews, 3 M. & W. 312. (o) Branscomb v. Bridges, 1 B. & (/) Davis V. Gyde, 2 A. & E. 623. C. 145; 3 Stark. R. 171; Holland v. (»i) Skerry v. Preston, 2 Chit. R. Bird, 10 Bing. 15; Bennett r. Bayes, 245. 5 H. & X. 391 ; 29 L. J., E.x. 391. (n) Absalam v. King, Bull. X. P. (;>) Bennett v. Bayes, 5 H. & N. 181; Barnes, 450; Andrew v. Han- 391; 29 L. J., Ex. 391. cock, 1 Brod. & B. 46, 47 ; Stubbs Qj) Hatch v. Hale, 15 Q. B. 10. V. Parsons, 3 B. & A. 521 ; Wilson v. ^ As to effect of taking promissory note, or recovering judgment upon riglit to distrain, see post, sec. 11, note, " Distress, when may be made." 653 *415 DISTRESS FOR RENT. [Ch. XI. S. 2. the landlord or his agent the amount of the rent, together with a sufficient sum for the costs of the distress (r) ; after which it will be illegal to proceed further with the dis- tress (cs). Tender after impounding. — But a tender of the rent with expenses after the. impounding is too late to enable the tenant to maintain an action of trespass, trover, detinue or i-eplevin ; because the cattle or goods are then in the custody of the law, and not of the landlord or his agent (^). The subse- quent detention is considered as the act of the law, and not of the distrainer who has neither any property nor even a constructive possession of the cattle or goods distrained (?/) ; and although they might be released with his consent, he is not legally bound to give such consent. However, if such tender be made within the five days allowed to the tenant to replevy (although after the impounding), a special action on the case, founded on the equity of the stat. 2 W. & M. sess. 1, c. 5, s. 2, may be maintained if the landlord afterwards proceed to sell the distress (.r). To avoid tliis the landlord should, after such a tender, abstain from selling (which he may lawfully do) and merely keep the distress impounded as a pledge, according to the common law, until the arrears of rent, with expenses, are actually satisiied, or the tenant incurs the trouble and expense of a replevin, the costs of which will fall upon him. What amounts to an impounding. — Whether the distress was " impounded " before the tender was made is sometimes a question of considerable nicety and importance. In one case the landlord's agent had delivered to the tenant a notice of distress, wherein it was stated that the cattle distrained, of which an inventoiy had been given, were impounded on the (r) Post, Sect. 8 (e). v. Field, 8 E. & B. .^30; Smith L. & (s) Vertue v. Boasley, 1 Moo. & K. T. 208 (2nd ed.). 21; Evans u. Elliott, 5 A. & E. 142; (ii) Rex v. Cotton, Parker, 121; Ladd V. Thomas, 12 A. & E. 117. Turner v. Ford, 15 M. & W. 212; (I) Six Carpenters' case, 8 Co. R. Wilbraham v. Snow, 2 Wms. Saund. 4.''>2; 1 Smith L. C. l.']."] (7th ed.) ; 47 a. Firth V. Purvis, 5 T. R. 4.'}2 ; Thomas (.r) Jolinson v. ITpham, 2 E. & E. V. Harries, 1 M. & G. 01)5; Ladd v. 250; 28 L. J., Q. 15. 252; overrulinK Tliomas, 12 A. & E. 117; Ellis v. Ellis j). Taylor, 8 M. & W. 415. Taylor, 8 M. & \V. 415; Tennant 654 Ch. XI. S. 2.] CONDITIONS PRECEDENT TO DISTRESS. *416 premises ; it was held, that the impounding was complete so as to make a subsequent tender unavailing (//). In another case, a landlord's agent went upon the tenant's premises, and walked round them, and gave a written notice that he had distrained certain goods lying there for an arrear of rent, all which goods, he had left on the said demised premises^ and that unless the rent was paid, or the goods replevied within live days, they would be appraised and sold according to law, and then went away without leaving any person in posses- sion. It was lield, that * there was a sufficient distress [*416] and impounding on the premises pursuant to 11 Geo. 2, c. 19, s. 10 (z). In a third case, a landlord entered upon a dwelling-house to distrain, but, to prevent inconvenience to the tenant, the landlord, with the tenant's assent, instead of removing the articles of furniture upon which he proposed to distrain, made up from a list given to him by the tenant an inventory of the furniture in the house, put a man into possession, and handed to the tenant a notice of distress referring to the inventory, which was also then handed to the tenant. The landlord did not go into the several rooms in which the articles were, and the notice of distress did not state that the articles were impounded. It was held, that this constituted a distraining of the articles mentioned in the inventory, and an impounding them upon the premises, and that a tender subsequently was too late («). To whom tender made. — A tender may be made to the land- lord himself, notwithstanding he has instructed a broker to distrain and left the matter in his hands (6). So it may be made to any agent of the landlord who has express or implied authority to receive rent on his behalf (). In that case the plaintiffs were assignees of a mining lease, inider which the defendant claimed to be entitled to a certain ad- {n) Alford v. Vickory, 1 C. & M. Nuttall v. Staunton, 4 B. & C. 51. 280; .Tonner v. Clefifj, 1 Moo. & K. («) Shaw v. Jersey (Earl of), L. 213 ; Williams v. Stiven, Q. B. 14. R., 4 C V. D. at p. 201, per Cotton, (.t) Zouch d. Ward v. Willingale, L. J. 1 II. Blae.'311. (A) L. U., 4 C. P. D. 359 — C. A., (v) Blyth V. Dennett, 13 C. B. 178, affirming decision below ; L. R., 4 C. 180. r. 1). 120 ; 48 L. J., C. P. 308; 27 W. {z) Knight r. Bennett, 3 Binjr. 301 ; R. 787. Beavan v. Deluliay, 1 II. Blac. 5; GG2 Cii. XI. S. 4.] WHO MAY DISTRAIN. *421 ditional rent. The defendant had distrained twice, and tlie [)hiintiffs had sued for unhiwful distress. A special case had been stated to determine the construction of the lease. The defendant was restrained from distraining until the determination of this case, by an injunction granted for a fortnight, and to be continued only if the rent should in the meantime be paid into court. An injunction restraining a distress was also granted in Walsh v. Lonsdale (c) upon the terms tliat the rent be paid into court. It may be observed that such a conditional injunction is more favourable for the landlord than the action of replevin, in which tlie tenant is compellable to give security only, although he may if he please make a deposit instead. (See post, Chap. XII.) Sect. 4. — Who may distrain. (a) Reversioners. Distress incident to reversion. — The person legally entitled to the immediate reversion on a lease, when any of the rent thereby reserved becomes due, may distrain for such rent by virtue of the common law. But if he afterwards assign the reversion either absolutely or by way of mortgage, the remedy by distress for such arrears will be lost (d')} So the right to distrain for previous arrears of rent may be lost by a severance of the reversion : thus where the plaintiff was tenant to six joint tenants, four of whom conveyed their shares to a third party ; it was held, that the six were not entitled to distrain for the arrears of rent due to them before the conveyance (e). But a second lease to commence on (c) Ante, 86. & E. 832 ; 28 L. J., Q. B. 236 ; Smith Id) BuUen, 26, 74; Threr v. Bar- v. Torr, 3 F. & F. 505 ; Smith L. & T. ton, Moore, 94; Dixon v. Harrison, 189 (2nd ed.). Vaughan, 52 ; Brown v. Metropolitan (c) Staveley v. AU'ock, 16 Q. B. Counties Life Insurance Society, 1 E. 636 ; 20 L. J., Q. B. 320. ^ Distress made after date, but before delivery of deed of reversion, is legal. Magher v. Coleman, 1 R. & G. (N. S.) 271. After lessor has assigned reversion in mortgage (or otherwise), the prior accrued rent becomes a mere chose in action, and cannot be distrained for by any one. Dauphinais v. Clark, 3 Manitoba, 225. 663 *422 DISTRESS FOE, RENT. [Ch. XI. S. 4. the expiration of the previous one, creates only an interesse termini during the continuance of the fii'st lease, and does not amount to an assignment of the reversion (/). If a lessee for yearti assiij-n his term, reserving a rent, but without an express power of distress^ he cannot distrain for it when in arrear, because he has no reversion : his remedy is by an action on the contract (//). If a lessee sub-let for a term shorter than his own by one day or more, he has a r*422] * reversion and consequently a right to distrain, which will pass to his executors (/<) ; and so has a tenant from year to year, sub-letting from year to year (i). A termor after liis term has expired, and a demand of posses- sion by the lessor, cannot distrain upon his subtenant con- tinuing in possession (A:). If a termor surrender his term to the reversioner, reserving to himself a rent, but without an express power of distress, he cannot distrain for the rent when in arrear, because he has no reversion. But if a sur- render be made, and a new lease granted, the right to dis- train on previous sul>tenants is preserved by the 4 Geo. 2, c. 28, s. 6, and 8 & 9 Vict. c. 106, s. 9 (/)• Joint tenants. — (^ne joint tenant may distrain alone ; but he must avow or justify such distress in his own right, and as bailiff of the others (m). A distress for rent may be authorized by one of several joint tenants (ii). He may sign a distress warrant, and thereby appoint a bailiff to distrain for rent due to all, if the others do not forbid him ; and if when applied to they merely decline to act, that will not prevent him from proceeding (o). If some of the joint ten- ants assign their shares, the right of all the joint tenants to (/) Smith V. Day, 2 M. & W. G84 ; (/) Curtis v. Wheeler, Moo. & M. Blauhfiml, app., Cole, rcsp., 5 C. B., 403; Oxley v. James, 13 M. & W. N. S. 514 ; Doe r. Walker, 5 B. & C. 209. 111. (k) Burne r. Richardson, 4 Taunt. (if) V. Cooper, 2 Wilson, .375 ; 720. Smith I-. Maplebaek, 1 T. K. 441 ; (/) Ante, Chap. IX., Sect. 5. Talentinc v. Denton, Cro. Jac. Ill ; (w) Pullen v. Palmer, 3 Salk. 207 ; I'armenter v. Webber, 8 Taunt. 503; Carth. 328; 5 Mod. 73. Preece v. Corric. 5 Bing. 24 ; Pascoe (h) Per Jervis, C. J., in Morjran r. V. Pascoe, 3 Bing. N. C. 808; BuUen, Parry, 17 C. B. 342. 54. (()) Robinson i'. Hoffman, 4 Bing. (A) Wade V. Marsh, Utch. 211; 502 ; 3 C & P. 234. Bulkn, 54. 6()4 Ch. XI. S. 4.] WHO MAY DISTRAIN. *423 distrain for previous arrears of rent is at an end (p). A surviving joint tenant may distrain for arrears accrued in the lifetime of his deceased companion (^). Where two or more executors or other joint tenants demise to their co- executor or co-tenant their shares at a lixed rent, it seems they may distrain for such rent when in arrear (r). Tenants in common. — Tenants in common are obliged to avow separately (i-), and should make several distresses, each for his own share (0 ; thus, where land was demised by four persons (whose original title did not appear) at one entire rent, to be divided and paid separately in equal por- tions ; and one of the four distrained upon the tenant for her own share of the rent ; it was held, that the distress was regular, for whatever might have been the interest of the landlords as between themselves, as between them and the terre-tenant they were tenants in common, and entitled each to a separate distress (u). It seems they may all join in one distress; but in justifying such distress they must avow or justify separately for their respective shares (a;). It has been held that the survivor of two tenants in com- mon may sue in covenant for * the whole rent due [*423] upon a lease made by them, although the reservation was to both according to their respective interests (?/). If a rent-charge has been divided by will, or by deed operating under the Statute of Uses, amongst several persons as ten- ants in common, there may be several distresses without attornment (2). After a devise of a reversion to two tenants in common, one of them may distrain for his share of the rent upon the lessee of the devisor, where such lessee has paid the whole rent to the other tenant in common after notice not so to pay (a). Where a tenant in common de- (p) Staveley v. Alcock, 16 Q. B. /'/) Wallace v. M'Laren, 1 Man. & 636 ; 20 L. J., Q. B. 320. R.*516 ; Thompson v. Hakewili, 19 C, (7) Bullen, 47 ; 2 Roll. Abr. 86. B., N. S. 713 ; 35 L. J., C. P. 18. (r) Cowper v. Fletcher, 6 B. & S. (z) Rivis v. Watson, 5 M. & W. 464; 34 L. J., Q. B. 187. 255. (s) PuUen V. Palmer, 3 Salk. 207. (a) Harrison v. Barnby, 5 T. R. (0 Bradby, 41. 246; Powis r. Smith, 5 B. & A. 850; (m) Whitley v. Roberts, M'Clel. & Doe d. Pritchitt v. Mitchell, 1 Bred, Y. 107. & B. 11 ; BuHen, 49, (x) Bullen, 48. 665 *423 DISTRESS FOP. RENT. [Ch. XI. S. 4. mises his share to his co-tenant, he may distrain for the rent reserved (5). Heirs in gavelkind. — One of several coheirs in gavelkind may distrain for rent due to himself and his coheirs without express authority from them (e). Coparceners. — Coparceners are considered in law but as one heir, and therefore before partition must join in making a distress (t?) : or one coparcener may distrain alone for the whole rent, each having an estate in every part of it (e). No consent from the other coparceners need be previously obtained in order to authorize one coparcener to distrain alone, or alone to appoint a bailiff to distrain for the whole rent (e). In the event of a replevin, however, tlie avowry must be, according to the nature of the estate, joint ; or the party distraining alone must avow in her own right for her own share, and make cognizance as bailiff of the other copar- ceners (e). After a partition, coparceners may of common right make several distresses, and their grantees also liave the same power (/). And even a rent-charge, although en- tire in its nature, may be divided between coparceners ; and thus by act of law the tenant of the land may become sub- ject to several distresses (^). But coparceners after they have parted with their estate cannot distrain for previous arrears (h). Tenants in tail. — Although a tenant in tail make leases not conformable to any enabling act (i), such leases are good as against himself, and therefore as a reversioner he may dis- train even at common law for the rent reserved thereby (Jc). Tenants by the curtesy. — A tenant by the curtesy may distrain of common right (/) ; but a husband unless he {h) Bronnam v. Hood, 4 Jr. Com. (fj) Co. Lit. 164 b; Hivis r. Watson, L. R. 3;32, Q. B. 5 M. & W. 255. (c) Lcifjli u. Shepherd, 2 Bro J. &B. (A) Dixon v. Harrison, Vaushan, 465; Biiilon, 46. 52; and see Staveley v. Alcock, 16 (f/) Stcdman v. Papc, 1 Salk. 390; Q. B. 636. Stedman c Bates, 1 Ld. Raym. 64. (/) Ante, 3. (e) Lei^rii „. Shepherd, 2 Brod. & [k) 1 Swanst. 346, note ; Bullen, B. 465; Bullen, 44. 50. (/) Butler and Baker's case, 3 Co. (/) Bradby, 40 ; Bullen, 51. R. 22 h; Co. Lit. 164 b; 169 b; Bullen, 45. CG6 Cii. XI. S. 4] WHO MAY DISTRAIN. *424 be tenant by the curtesy, cannot distrain for rent * which becomes due after the death of his wife [*424] under leases of her freehold made by both of them, or by him on her behalf (m). Tenants in dower. — A widow to whom dowry has been duly assigned by metes and bounds, may distrain for the subsequent rent of that part (w). If a rent l)e assigned to a widow instead of her dower, she may distrain for it, although she has no reversion, and the rent was granted without deed; for such rent is in its nature distrainable of common right (o). Tenants under execution. — An entry under an execution, either by elegit, statute merchant or statute staple, gives so far an estate in the rent of hind as to 'confer the power of distress, although there is but an uncertain interest in* the reversion (p), and a tenant by elegit may distrain without attornment (^). Lords of manors and commoners. — A lord of a manor may of common right distrain for his copyhold rents (r), and by 4 Geo. 2, c. 28, s. 5, he has the same right as if the rent was reserved upon lease. But copyhold rents are not within 32 Hen. 8, c. 37, giving a remedy by distress for arrears of rent to executors and administrators (s). Where two commoners agreed, to their mutual advantage, not to exercise their respective rights for a certain term ; it was held that one might distrain the other's cattle damage feasant during that time (0- In case of a common absolutely stinted in point of number, one commoner may distrain the supernumerary cattle of another; but not if an admeasurement be neces- sary ; or where the stint has relation to the quantity of com- mon land ; and a commoner cannot distrain where the owner of cattle has any colour of right to j)ut them on the land, as that would be taking to himself jurisdiction as to the compe- (m) Ante, 42. (,;) Lloyd v. Davies, 2 Exch. 103. (n) Co. Lit. 29 a, 34 b, 144 b ; (;•) Laujiber v. Humphrey, Cro. Stoughton V. Leigh, 1 Taunt. 410; Eliz. 524 ; Bullen, 57, 58. Bullen, 52. (s) Appleton i: Doily, Yelv. 1.35; (o) Co. Lit. 34 b, 169 b ; BuIIcn, Bull. N. P. 57 ; Sands v. Hempson, 2 31, 52; Gilb. Rents, 20. Leon. 142. (p) Bro. Abr. Distresses, pi. 72; (<) Whiteman v. King, 2 H. Blac. Cubitt's case, 4 Co. R. 7. 4. 667 *425 DISTRESS FOR RENT. [Ch. XI. S. 4. tency of such right ; but if there be no pretence or shadow of right, as in the case of tlie cattle of a stranger, the com- moner may always resort to distress (w). Mortgagees. — A mortgagee, after giving notice to the ten- ant in possession under a lease or tenancy created prior to the mortgage, may distrain for the rent in arrear and unpaid at the time of the notice, as well as for rent which may accrue after such notice, although he was not in the actual seisin of the premises, nor in the receipt of the rents and profits thereof at the time the rent became due (2:) ; but he may not distrain for rent due upon a lease made by the mort- gagor alone after the mortgage, unless he has accepted [*425] rent from the * tenant,'or has given him notice to pay rent, and the tenant has acquiesced, so as to create a new tenancy (express or implied) as between the mortgagee and the tenant (^). Payment of rent by the tenant under a distress does not constitute an acquiescence by relation back to the period when notice was given (z). But the tenant may expressly attorn to the mortgagee as from a previous day, at a specified rent, which may accordingly be distrained for (a). A mortgagee may distrain on the mortgagor for rent re- served upon an attornment in the mortgage deed, whether such rent be payable in advance or not, and even where the mortgagee has not executed the deed, if the tenancy be at will only, or for a term not exceeding three years (J)). Mortgagors. — A mortgagor may distrain, under a lease grante4 by himself after the* mortgage (c) : but he cannot distrain for arrears of rent due on a lease made before the mortgage ; for by the act of mortgaging the privity of estate is destroyed (d). But if a lessor, after mortgaging his re- (») TTall V. Harding, 4 Burr. 2432 ; {£) Evans v. Elliott, 9 A. & E. 342 ; 1 W. Bliic. 673. Brown v. Storey, 1 M. & G. 117. (x) Moss V. Gailimore, 1 Doug. («) Gladnian ;•. riunior, 15 L. J., 279; 1 Smith L. C. (529 (7th ed.) ; Q.B. W); 10 Jur, 109. Pope V. Biggs, 9 B. & C. 245. (h) Morton v. Woods, T.. 11., 3 Q. (.). Jointures. — A woman endowed of a rent by way of joint- ure in lieu of dower may distrain for it, whether it be rent- service, rent-charge or rent-seek, with or without deed (^). Although she have not the reversion, she may distrain for such rent of common right (r). The grantee or owner of a rent-charge, although he has no reversion, may distrain for the arrears by virtue of the ex- press power in the deed or will creating the rent-charge (s). So may the grantee or owner of a rent-seek, by virtue of 4 Geo. 2, c. 28^ s. 5 (0- Lords of manors. — The rents paid by copyholders, as ten- ants of the manor, to the lord, have always been considered as rent-service, fealty being necessarily incident to this spe- cies of tenure, and therefore they are distrainable of com- mon right («). (c) Tenants pur autre Vie. By 32 Hen. 8, c. 37, s. 4, tenants pur autre vie may sue or distrain for arrears due during the life, and unpaid after the death of the cestui (pie vie, in like manner as at common law they might have done during his life. [*427] * (d) Executors and Administrators. By the common law, executors or administrators could not distrain for arrears incurred in the lifetime of the owner of a 80«; Langfonl v. Sclmes, 3 Kay & J. {]>) Ante, Chap. VII. 220. (7) Coll V. Bishop of Coventry, (n) Lit. ss. 2G2, 253; Co. Lit. 100 Iloh. 140, 153. a; Id. 153 a, note (1) ; Rullcn, 31. {r) Co. l>it. 10!) b ; Id. 34 b; Gilb. {(>) Lit. 88. 252, 263; Co. Lit. 153 Rents, 20; BuUen, 31, 52. a, note (1); Id. 109 b; Butlor and (,s) Anlc,AV2.. Baker's case, 3 Co. U. 22 h; Stukcley (0 Ante, 412. r. Butler, Ilob. 172; Cilb. Rents, 10; {u) Laugher v. Humphrey, Cro. Bullen, 31, 45. Eliz. 524 ; mite, 348. 670 Cn. XI. S. 4] WHO MAY DISTRAIN. *427 rent (x) ; but by 32 Hen. 8, c. 37, s. 1, the executors and administrators of tenants in fee, fee-tail, or for term of life, of rent-services, rent-charges, rent-seek and fee-farm rents, were empowered to distrain upon the lands chargeable with the payment thereof, so long as such lands remain in the possession of the tenant who ought to have paid them, or of any other person claiming under him by purchase, gift or descent. This statute has been considered a remedial law, extending to all executors of tenants for life, as well those who before the statute were entitled to an action of debt, as those who had no remedy whatever (t/). By 3 & 4 Will. 4, c. 42, s. 37, " the executors or administrators of ani/ lessor or landlord may distrain upon the lands demised for any term^ or at will, for the ari'ears of rent due to such lessor or land- lord in his lifetime, in like manner as such lessor or landlord might have done in his lifetime ; " and by sect. 38, "• such arrears may be distrained for after the end or determination of such term or lease at will, in the same manner as if such term or lease had not been ended or determined ; provided that such distress be made within the space of six calendar months after the determination of such term or lease, and during the continuance of the possession of the tenant from whom such arrears became due ; provided also, that all and every the powers and provisions in the several statutes made relating to distresses for rent shall be applicable to the dis- tresses so made." Where the lessee of lands dies before the expiration of the term, and his administrator continues in possession during the remainder and after the expiration of it, a distress may be taken for all the arrears (2;), not exceed- ing six years (a). But it is otherwise where a mere tenant at will dies and his widow continues in possession (J). Where several executors demise to their co-executor at a fixed rent, it seems they may distrain for such rent when in arrear (c). An executor may distrain before probate, and (x) Co. Lit. 162 a. (a) 3 & 4 Will. 4, c. 42, s. 42 ; Cole (,y) Hool V. Bell, 1 Ld. Raym. 172 ; Ejec. 27. 3 Salk. 13'6. (/;) Turner v. Barnes, 2 B. & S. (2) Braithwaite v. Cooksey, 1 H. 435 ; 31 L. J., Q. B. 170. Blac. 465. (c) Cowper v. Fletcher, 6 B. & S. 464; 34 L. J., Q. B. 187. 671 *428 DISTRESS FOR RENT. [Ch. XI. S. 4. may ratify a distress made by a bailiff in the name of the testator immediately after his death (d'). (e) Husbands. Husbands in right of wives. — Arrears of rent, arising out of land in which the wife has only a chattel interest, whether accruing before or during the marriage, [*428] * might always by the common law be distrained for by the husband; and by 32 Hen. 8, c. 37, s. 3, the husband was allowed to distrain for arrears accrued before or during the marria,ge in respect of the wife's freeholds (e), but not for subsequently accruing rent, unless he were ten- ant by the curtesy (/). After the death of the wife, the husband might distrain alone for all the rent due in right of the wife in her lifetime, even if it accrued to her in autre droit, as executrix (^). Though the wife might generally join with her husband, in no case whatever could she before the Married Women's Property Act, distrain alone (Ji). (f) Corporations. Under implied tenancies from year to year. — If a lease be made by or on behalf of a corporation aggregate, not under their common seal, although it be invalid as a lease, yet if the tenant hold under it and pay part of the agreed rent to the corporation or their bailiff or agent, that is sufficient to create a tenancy from year to year at a fixed rent, and to entitle the corporation to distrain for such rent (i). By 4 Geo. 2, c. 28, s. 5 (A-), bodies politic and corporate are placed on the same footing as otlier persons with respect to the recovery of rent-seek, chief rents, and rents of assize. Corporations sole may sue or distrain in like manner as otlier lessors. Churchwardens and overseers. — Any one of the church- () Pitt v. Snowden, 3 Atk. 7f)0; enable the mortfiapee to obtain all Dancer v. Hastin^fs, 4 Hinji. 2; IJen- the advantages, without fiubjocting nctt y. Robins, 5 C. & P. ;i7!); Bran- liirnseif to the liabilities, of a niort- don v. Brandon, 5 Madd. 473. gagee in jwssession. G74 Ch. XI. S. 5.] DISTRESS ON AGRICULTURAL HOLDINGS. *430 should make an application to that Court for an order, as he must distrain in the name of the person who has that right (c) ; unless indeed the tenant has attorned for him, and so created a tenancy as between them (c^), in which case he should of course distrain in his own name (e). Agents. — An authority to tenants to pay rent to a third person, whose receipt shall be a discharge, does not entitle that person to distrain, although he receives the rents for his own benefit (/). If a person having express or implied authority to distrain for rent due to another, says at the time that he distrains for rent due to himself, he may neverthe- less justify as bailiff of the other (r/). (i) Sequestrators. By sequestrators. — By the 12 & 13 Vict. c. 67, a seques- trator is empowered to levy any distress in his own name for the recovery of tithes, tithe rent-charge or rent, &c., payable to the incumbent of the sequestrated benefice. Sequestrators appointed by the High Court appear to stand on the same footing as receivers (A). Sect. 5. — Distress on Agricultural or Pastoral Holding^ or Market Garden. Application of Agricultural Holdings Act. — If the Agri- cultural Holdings Act, 1888, applies, that is, if the demised premises be either wholly agricultural or wholly pastoral, or partly agricultural and partly pastoral, or wholly or partly cultivated as a market garden, held under a landlord for a term of years, or for lives, or for lives and years, or from year to year, and the tenant hold no employment under the (c) Huges V. Hugos, 3 Bro. C. C. (e) Jolly v. Arbuthnot, 4 De G. & 87; 1 Ves. jun. Kil. J. 224; 28 L. J., Ch. 547. id) Evans v. Mathins, 7 E. & B. {f) Ward ?'. Shew, 9 Bing. 608. 590,601; 26 L. J.,Q. B. 309; White (q) Trent t-. Hunt, 9 Exch. 14; V. Smale, 22 Beav. 72; 26 Id. 191; Sncll v. Finch, 13 C. B., N. S. 651; Barton i-. Bock, 22 Id. 81. 32 L. J., C. P. 117; (Ji) ^nfe, 429. 675 *431 DISTRESS FOR RENT. [Ch. XI. S. 5. landlord («'), then the landlord's rights of distress are subject to many special limitations particularly laid down by sections 44 to 52 of the act. [*431] * One year's arrears alone recoverable. — First, it is enacted by s. 44 (with a saving for arrears existing on the 25th August, 1883, which arrears are to be recover- able up to Jan. 1st, 1885, as if the act had not passed) that the six years' arrears which the landlord might otherwise have distrained for shall be reduced to one year's arrears, the words being that " it shall not be lawful to distrain for rent which became due more than one year before the mak- ing of such distress ; " but a proviso recognizes and encour- ages the continuance of the very common practice of defer- ring the collection of rents for a quarter or half-year. (See p. 455, post.) Exemption of agisted stock, &c. — Secondly, it is enacted by s. 45 that agricultural or other machinery on hire, and live stock on hire for breeding purposes, are to be absolutely exempt from distress, and that agisted cattle, where a fair price is paid by the owner, are to be exempted condition- ally, that is, in case other sufficient distrainable goods should be on the premises, and even when in such case dis- trainable, are to be distrainable onl};- for the amount due to the tenant from the owner for their keep. Limitation of charges, &c. — Thirdly, it is enacted by s. 40 that the charges upon a distress for more than 201. (which charges, up to 20?., are limited by 57 Geo. 3, c. 93, and be- yond that sum have no statutory limit) shall not exceed the charges fixed by the second schedule to the act, and by s. 51 that no person may levy a distress as bailiff unless he be appointed by a county court judge. Appraisement dispensed with, &c. — Fourthly, it is enacted by s. 50 tliat the a])praisement before sale required by 2 W. & M. c. 5, s. 1, in ordinary cases shall not be obligatory, and that goods distrained shall, if the tenant require, be removed to an auction room or some other place selected by him, and there sold. (i) See 88. 54 and 01 of the act, cation of the act considered, post, Cli. post, Appendix A., ami sec tlie appli- XXI. 676 Cii. XI. S. ").] DISTRESS ON AGRICULTURAL HOLDINGS. *432 Fifteen days to replevy. — Fifthly, it is enacted by s. 51 that the tenant or owner of goods distrained shall upon his written request have fifteen days, instead of the five days limited by 2 W. & Ai. e. 5, s. 1 in ordinary cases, within wliich to replevy the goods. Determination of dispute. — Sixthly, in regard to procedure in case of an alleged wrongful distress, it is enacted by s. 46 that any dispute relating to a distress may be heard and de- termined either by a county court or a court of summaiy jurisdiction, either of which courts, subject to appeal to quarter sessions from a court of summary jurisdiction, may make an order for restoration or "any other order which justice requires." These sections, which present not a few difficulties, will be examined in detail presently (A;) ; but the question must at once be shortly considered, whether or not the parties may by special stipulation "contract out of" these sections, and legally, by preventing their taking effect, continue the rights and liabilities of the ordinary law. * Upon the general principle quilihet potest renun- [*432] ciare juri pro te mtrodueto, there apjDcars to be some reason for saying that the tenant may give up his rights under these sections, and perhaps an additional reason is supplied by the fact that the rights under other sections of the act, those which secure compensation for improvements, can by the express provision of the act in no case be con- tracted out of. The rule appears to be that a statute can be contracted out of unless it be contrary to public policy to contract out of it (Z), or unless some third person's rights be damaged (m). It can hardly be said to be contrary to public policy to contract out of these sections ; but considering the extent to which the rights of third parties may be directly affected, it is submitted on the whole that they cannot be contracted out of. (k) Post, Sect. 9, subsections (h) Griffiths v. Earl Dudley, L. R., 9 Q. and (k) ; and Sect. 10, subsection B. D. 357. (b). (m) See Broom's Legal Maxims, (/) Tliat the Employers' Liability 6th ed., at p. 668. Act can be contracted out of, see 677 *433 DISTBESS FOR KENT. [Ch. XI. S. 7. Sect. 6. — Distress in Case of Bankruptcy. Landlord may distrain for one year's rent. — The landlord's right to distrain for rent, when the tenant becomes bankrupt, which was always recognized by bankruptcy law (7i), is lim- ited to one year's rent due prior to the adjudication. If any more arrears be then due, they may be proved for.^ No stay of distress. — Such is the effect of s. 42, sub-s. 1, of the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52 (re-enact- ing without alteration s. 34 of the Bankruptcy Act, 1869), the distress under which section is not "a legal process" within the meaning of s. 10, sub-s. 2, of the Bankruptcy Act, so as to be stayable under that section (o) ; and notwith- standing the possession of a receive, may be begun, con- tinued, and ended without any leave from any Court what- ever (^:>). The cases upon this subject are more fully given and con- sidered in connection with the general rights of the parties in case of bankruptcy (ante, Ch. VII. Sect. 11, subs, (e), p. 282). Sect. 7. — Distress iqjon Company in Liquidation. Restriction of right. — Distress upon a joint stock com- pany's goods is restricted by the Joint Stock Companies' Acts, and is not affected by the 10th section of the Judica- ture Act, 1875, which imports certain bankruptcy [*433] rules * into winding-up (7). By sect. 87 of the Joint Stock Companies' Act, 1862 (25 & 26 Vict. c. (n) Goods in the custody of a (;>) Till, Ex parte, Mayhew, In re, messenger in bankruptcy were not L. R., 10 Eq. 97 ; 42 L. J., Bank. 84; pxenijit from distress, as being in 21 W. R. 574. tlie custody of the law. Briggs v. (q) Thomas v. Patent Lionite Co., Sowry, 8 M. & W. 720. L. U., 17 Ch. D. 250; 50 L. J., Ch. (o) Birmingham Gaslight Co., Ex 544; 44 L. T. ;J92; 29 W. R. 596, C. piirle, Fanshaw, In re, L. R., 11 Eq. A. CI 5; 40 L.J., Bank. 62; 24L.T.039; 19 W. R. 603. 1 Order for administration of decedent debtor's estate, not followed by bank- ruptcy, does not limit power to distrain for rent then accrued. In re Fryman's Estate, 38 Ch. D. 468. 678 Ch. XI. S. 7.] DISTRESS UPON COMPANY. *433 89), it is enacted, that " where an order has been made for winding-up a company under this act no suit, action, or other proceeding shall be proceeded with or commenced against the company except with leave of the court, and sub- ject to such terms as the court may impose ; " and by sect. 163, that " where any company is being wound up by the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding-up shall be void to all intents." These two sections are to be read together, and the enactment of sect. 163 that a distress shall be " void " means that it shall be void unless leave be given under sect. 87 (r). Rent due before winding-up order. — It is clearly settled that leave will not be given to distrain for rent accrued due from the company before the winding-up order (s) ; and that the 10th section of the Judicature Act, 1875, which assimi- lates the rules in bankruptcy to the rules in winding-up as to rights of secured creditors does not so far assimilate them as to allow the landlord to distrain for such rent (0- For rent due before the presentation of the petition — to which the winding-up order has relation back (?t) — -the land- lord must prove, with the other creditors, in the winding-up. Rent due after winding-up order. — As to rent accrued due after the winding-up order, " if the company for its own pur- poses, and with a view to the realization of the property to better advantage, remains in possession of the estate, which the lessor is not therefore able to obtain possession of, com- (r) Re Exhall Coal Mining Co. Roberts and Wright, Ex parte, L. "R., (Limited), 33 L. J., Ch. 595; 10 Jur., 18 Ch. D. 049; 50 L. J. Ch. 738, N. S. 576 ; 4 De G., J. & S. 37 ; 13 W. where mortgagees having a right of K. 219; and see Eyton v. Denbigh, distress for interest were refused &c. R. Co., L. R., 6 Eq. 14 ; Rickinan leave to distrain for arrears accrued V. Johns, Id. 488; Lundy Granite Co., before the winding-up. For exception l» re, Heaven, Ex parte, L. R., 6 Ch. in case where landlord not a legal 482 ; 40 L. J., Ch. 588 ; 24 L. T. 922 ; creditor, see 434 (6). 19 W. R. 609. (/) Coal Consumers' Association, (s) Re Progress Assurance Co., L. In re, L. R., 4 Ch. D. 625; Thomas v. R., 9 Eq. 370 ; Traders' North Stafford- Patent Lionite Co., supra. shire R. Co., L. R., 19 Eq. 60 ; Thomas (u) South Kensington Stores, In re, V. Patent Lionite Co., supra (7), and infra. Brown, Bailej, and Dixon, In re, 679 *434 DISTRESS FOR RENT. [Ch. XI, S. 7. moil sense and ordinary justice require the court to see that the landlord receive the full value of his property " (x) and to give the leave to distrain ; nor is the existence of a power of re-entry in the lease any reason for refusing such leave (i/). The Apportionment Act, 1870 (2), may be resorted to for dividing a quarter's rent into a part which may only be proved for and a part which may be distrained for, and the [*-J:34] right to * distrain begins to run, not from the date of the winding-up order, but from the date of the presentation of the winding-up petition (a). Landlord " stranger " to company. — It has been twice held by the Court of Appeal (J), that the landlord's common law right of distress is not restricted by the Companies' Act in cases where he is a " stranger " to the company — that is, in cases where the company is not his tenant, but the goods of the company are found upon the premises of a person who is. These decisions proceed upon the ground that in such cases the landlord has no right of proof in the winding-up, not being a creditor of the company. Review of cases. — All the cases up to 1882 Avill be found fully reviewed in Oak Pits Colliery Co., In re (i^), in which the Court of Appeal appears to have laid down the princi- ples upon which leave is given or refused to the same effect as above stated. Further rights of landlord. — A landlord who has demised a mine to a com})any for a term of years, has a right, if, before the expiration of the term, the company is ordered to be (.r) rer James, L. J., in Lundy 50 L. J., Ch. 440 ; 44 L. T. 471; 29 Granite Co., In re, L. R., 6 Ch. 400, W. R. 002, per Fry, J. cited witli approval by Hall, V.-C, in {h) In re Lundy Granite Co., uhi North Yorksliiro Iron Co., In re, L. sttpra (exiiaustivoly explained by R., 7 Cli. D. 004. See also Rilkstone Jessel, M. R , in Traders' North Staf- r. Dodworth Coal and Iron Co., In re, fordsiiire Co., In re, uhi supra); Recent Perkins. Er parte, L. R.. 17 Ch. 1). United Service Stores, In re, L. R., 8 \r>S; r>() L. ,T., Ch. 444; 44 L. T. 405 ; Ch. D. (!10. 29 VV. R. 484, per Fry, J. (hh) Oak Rita Colliery Co., In re, (y) North Yorkshire Iron Co., In Eyton'a Claim, L. R., 21 Ch. D. 322 ; re, uhi supra. 61 L. .1., Ch. 708 ; 47 L. T. 7 ; 30 W. (z) Ante, Ch. X., Sect. 0. R. 759— C. A., in which it was held (a) South Kensinpton Co-operative that the mere fact of a liquidator not Stores, In re, L. R., 17 Ch. 1). 250; endeavourinfj to surrender was not enough for giving leave to distrain. 680 Ch. XI. S. 8.] SUBJECT-MATTERS OF DISTRESS. *435 wound up, to enter a claim against the company in respect of the contingent liability to the future non-payment of rent by the assignee of the lease (c). Where a company who were assignees of land granted for a feu duty, came to be wound up, the grantor was held entitled to prove for arrears of feu duties, and also to enter a claim for the capitalized value of future feu duties (^d). Sect. 8. — The Subject-matters of Distress. (a) General Mules and Exemptions. Distress is of nature of a pledge. — A distress being anciently considered merely as a pledge in the hands of the lord to compel the tenant to perform the service or duty required, could not at common law be sold ; but was to be restored in the same plight to the owner, when such service or duty was performed ; and therefore nothing could be distrained unless it could be returned in specie and undamaged (g), and in the same state as when * taken (/). This is [*435] why tenants' fixtures and the flesh of animals lately slaughtered cannot be distrained (//). The right to sell the distress was first given by 2 W. & M. c. 5, but that statute did not, except with respect to sheaves of corn, which were not at common law distrainable, do away with the exceptions founded on the common law rule. Subsequent statutes have further altered the law. List of things exempted from distress. — The present excep- tions, of which the more important will be considered in detail presently, may here be briefly stated as follows : — Things absolutely privileged — Fixtures (A) : (r) Re Haytor Granite Co., L. R., b ; Pitt v. Shew, 4 B. & A. 207 ; Darby 1 Ch. Ap. 77; 35 L. J., Ch. 154; Re v. Harris, 1 Q. B. 895. London and Colonial Co., L. R., 5 Eq. (/) Simpson v. Hartopp, "Willes, 661. 515; 1 Smith L. C. 439 (7th ed.). (d) Gartness Iron Co., In re, L. R., ((/) Morley r. Pinconibe, 2 Exch. 10 Eq. 412; 39 L. J., Ch. 814; 23 L. 101; Brown v. Shevill, 2 A. & E. 138. T. 389; 18 W. R. 1103, per Bacon, (h) Hellawell v. Eastwood, 6 Ex. V.-C. 295, and 438, post. (e) Gilb. Distr. 34, 48 ; Co. Lit. 47 681 *435 DISTRESS FOE RENT. [Ch. XI. S. 8. Animals ferse naturae (e) : Goods delivered to a person in the way of liis trade (A:) : Things in actual use (Z) : Things in the custody of the law (m) : The goods of an ambassador (ji) : The goods of a lodger (o) : Frames, looms, or machines used in the woollen, cot- ton, or silk manufactures (jd) : Gas-meters, being the property of a gaj company in- corporated by act of parliament (^) : Railway rolling stock in any works not belonging to the tenant of the works (r). If the Agricultural Holdings Act applies, liired ma- chinery and breeding stock. Things privileged sub modo or conditionally, i.e. p>rivileged only if there he other sufficient distress on the premises — Beasts of the plough and sheep (s) : Tools of trade (0 : If the Agricultural Holdings Act applies, agisted stock. Subject to the above exceptions, all cattle, goods and chat- tels which are found upon the demised premises ^ may be (0 Co. Lit. 47, and 439, post. (/>) G & 7 Vict. c. 40, ss. 18, 19. \k) Swire v. Leach, 34 L. J., C. P. (7) Gasworks Clauses Act, 1847 150, and 440, post. (10 Vict. c. 15), s. 14. (/) Simpson v. Ilartopp, 1 Smith L. (r) 35 & 30 Vict. c. 60, s. 3, post, C. 439 (7th cd.), and 442, post. 447. (m) I'age 442, post. (s) Keen v. Priest, 4 H. & N. 236, (h) 7 Ann. c. 12, s. 3. and 449, post. (0) 34 & 35 Vict. c. 79, and 445, (0 Corton v. Falkner, 4 T. R. 505, post. and 451, post. ' Goods of sub-lessees. — {a) At common Imr tliey are liable, Jimison v. Reifsnoider, 97 Pa. St. i:'.(i ; Wliitinf,' v. Lake, 91 Id. 349; Riddle v. Welden, 5 Whart. (Pa.) 9, 10 {per Gibson, C. J.) ; Langton v. Baeon, 17 Q. B. (Ont.) 559 ; but they could not be distrained off tlic premises. Coles v. Marquand, 2 Hill (N. Y.) 447, 449 (per Bronson, J.). (b) fn Illinois it was formerly held (by construction of an early statute) that ^mods of subdessees could not be distrained. Gray ;•. Rawsou, 11 111. 527, except crops, Uiil v. Dighton, 25 111. 154, protected by landlord's statutory lien. The rule has been changed, and goods of sub-lessees arc now liable. Sts. III. ch. 80, sec. 32. 682 Ch. XI. S. 8.] SUBJECT-MATTERS OF DISTRESS. *436 distrained for rent, whether they be the effects of a tenant or of a stranger (m),^ the reason being that the hindlord has a lien on them in respect of the place in which they are found, and not in respect of the person to whom they * belong. The property must be upon the premises, [*436] except in the case of a fraudulent removal (a:), or cattle feeding or depasturing upon any common appendant or appurtenant to the demised premises (y), and except in the cases of distresses by the crown (2). The property must not be in such a situation that the attempt to distrain it would probably lead to a breach of the peace : thus it has been held that a horse cannot be distrained whilst a person is actually riding it (a). Partnership property. — Where a mortgage was made by two partners of a freehold of which they were tenants in common, and each attorned tenant to the mortgagees of one (u) Gilb. Distr. 33; 3 Blac. Cora. (2) Bullen, 76. 7; Smith L. & T. 194 (2nd ed.). (a) Storey v. Robinson, 6 T. R. (x) Post, Sect. 10 (e). 138. (//) 11 Geo. 2, c. 19, s. 8, post, 458. 1 Goods of strangers. — (a) At common law. — The goods of strangers upon the premises (and not privileged) may be distrained. Kleber v. Ward, 88 Pa. St. 93 (a piano leased to tenant's wife prior to act of May 13, 1876) ; Price v. McCallister, 3 Grant's Gas. (Pa.) 248 (billiard-table rented to lessee by month) ; Karns v. McKinney, 74 Pa. St. 387 ; Kessler v. M'Conachy, 1 Ravvle (Pa.) 435, 441 (per Rogers, J.) ; O'Donnel v. Seybert, 13 S. & R. (Pa.) 54, 57 (per Duncan, J.) ; Wright r. Matthews, 2 Blackf. (Ind.) 187; Applegate v. Crawford, 2 Ind. 579 ; Stevens v. Lodge, 7 Blackf. 594. Tlie wife's separate property is liable, Blanche f. Bradford, .38 Pa. St. 344; and the stranger is estopped to deny landlord's authority, Smith v. Aubrey, 7 Q. B. (Ont.) 90. But if the goods are removed from premises they cannot be distrained, Adams v. La Comb, 1 Dall. (Pa.) 440; Scott v. McEwen, 2 Phila. 170 ; Sleeper r. Parrisli, 7 Id. 247 ; and they may be removed to avoid distress without pen- alty. Strong V. Stebbins, 5 Cow. (N. Y.) 210. (6) Wilder statutes. — In New Jersey (Rev. Sts. pp. 308--314, sec. 8), Illinois (Sts. ch. 80, sees. 16-35), Virginia (Code, sec. 2792), West Virginia (Code,ch. 93, sec. 11), Kentucky (Gen. Sts. ch. 66, sec. 13), Florida (Dig. Laws, ch. 137, sec. 1), South Carolina (Gen. Sts. sec. 1826), &c., goods of strangers are (expressly or by implication) exempted from distress. In Ontario they are exenipt, except (under circumstances) those of certain near relatives, and claimants under execution, &c., tlirough tenant (Rev. Sts. ch. 14.3, sec. 28). In several states the right to distrain stranger's goods is expressly granted : Delaware (Laws of Delaware, ch. 120, sec. 22), Louisiana (Civil Code, Art. 2705-2709), Quebec (Civil Code, Art. 1622), &c. ; and in some states it is left as at common law. 683 *436 DISTRESS FOR RENT. [Ch. XI. S. 8. moiety at a separate rent, it was held by Bacon, C. J., who pointed out that his decision was "directly against the com- mon sense and justice of the case," that, under separate distresses for rent in respect of each moiety, the mortgagees could not seize the partnership assets, but only such goods as each partner was separately entitled to (6).^ Corn and Growing Crops. Distress of corn and growing crops. — By the common law cocks and sheaves of corn and other farm produce and grow- ing crops could not be distrained, but were absolutely privi- leged from distress for rent, although there were no other goods on the premises (c).^ But by 2 W. & M. sess. 1, c. 5, s. 3, " any person having rent in arrear and due upon any demise, lease or contract may seize and secure any sheaves (b) Parke, Ex parte. Potter, In re, joint demise, or a demise in common. L. R., 18 Eq. 381 ; 30 L. T. 618; 22 See BuUen, 80. W. R. 768. A distress for the whole (r) Simpson i\ Hartopp, Willes, rent, however, may be made on the 512; 1 Smith L. C. 439 (7th ed) goods of any tenants holding under a 1 Property exempt from seizure on execution sometimes exempt from distress. — In several states property exempt from seizure on execution is exempt from distress; so in Illinois (except crops), and in Ontario (except as otherwise provided), &c. Unless specially exempted, they are liable. Harley v. Weathersbee, 21 S. C. 243. "Waiver of exemption. — Exemption may be waived by provision in the lease. M'Kinncy v. deader, 6 Watts (Pa.) 34. -Crops. — In several states there are special statutes authorizuig distress of growing crops and sheaves, cocks and stocks of corn, grain, and other i)roduce (Laws of Del. ch. 120, sec. 2 ; Revision of N. J. p. 30i>, sec. 7 ; &c.). Many of the states (see «;i/e, sec. 1, note, "American substitutes for dis- tress") give landlords special statutory liens upon the crops (gi'nerall)- para- mount to all other liens). These liens frequently exist in conjunction with (though superior to) the landlord's ordinary lien, and frecjuently, also, where tlie law of distress does not prevail, special remedies being provided for enforce- ment. In Georrjio ami Terns a crop cannot be distrained until it is mature. Scott V. Russell, 72 (in. 35 ; Slay v. Milton, 64 Tex. 421. In Illinois the statutory lien may be enforced by distress. Mead v. Thomp- son, 78 111.62; Miles r. James, 36 Id. 391); or in any other convenient way, as by action against lessee's vendee, Prettyman v. Unland, 77 111. 20(5; by taking possession of the crop, Hunter r. Whitfield, H!l 111. 22!); or replevying it from officer who has levied upon it, Wetsel r. Mayers, 91 III. 497, &c. That rent payable in kind or in shares may be distrained for in most states, see (inle, sec. 2, note, " Fixed rent." 684 Ch. XI. S. 8.] SUBJECT-MATTERS OF DISTRESS. *437 or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, stack or rick, or otherwise upon any part of the land or ground charged with such rent, and lock up or detain the same in the phice where the same shall be found, for or in the nature of a distress, until the same shall be replevied or sold : but the same must not be removed from such place to the damao-e of the owner." Under this statute it seems that the landlord must sell at the expiration of five days, if the corn be not replevied ((7). By 11 Geo. 2, c. 19, ss. 8, 9, the landlord may take and seize, as a distress for arrears of rent, all sorts of corn and grass, hops, roots, fruits, pulse or other product (e) whatsoever growing upon any part of the estate demised, as a distress for arrears of rent; and the same may cut, gather, make, cure, carry and lay up, ivhen ripe^ in the barns or * other proper place on the premises ; and if there [*437] should be no barn or proper place on the premises, then in any other barn or proper place which he shall hire or otherwise procure for that purpose, and as near as may be to the premises ; and in convenient time appraise, sell, or other- wise dispose of the same, towards satisfaction of the rent, and of the charges of such distress, appraisement and sale ; the appraisement thereof to be taken when cut, gathered, cured and made, and not before ; provided that notice (/) of the place where such distress shall be lodged, shall within the space of one week after the lodging or depositing thereof in such place, be given to the tenant, or left at the last place of his abode ; and if the tenant shall pay or tender the arrears of rent and costs of the distress before the corn, &c. be cut, the distress shall cease, and the corn, &c. be delivered up. By 56 Geo. 3, c. 50, s. 6, entitled " An Act to regulate the Sale of Farming Stock taken in Execution," landlords are (d) Piggott V. Birtles, 1 M. & "W. generis to those enumerated ; Clark v. 448. Gaskarth, 8 Taunt. 431 ; Smith L. (e) These words do not include & T. 206 (2nd ed.). young trees growing in a nursery ( /') See form of such notice, Ap- ground, but only other things ejusdem pendix D., Sect. 5. 685 *438 DISTRESS FOR RENT. [Ch. XI. S. 8. not to distrain for rent " on any corn, hay, straw or other produce," which have been seized in execution and sold by the sheriff or other officer according to provisions of that act, under the contract of the tenant not to take the straw, &c., off the premises, and which at the time of the sale have been severed, " nor on any turnips whether drawn or growing," if sold according to the provisions of the act. By 14 & 15 Vict. c. 25, s. 2 (^), growing crops seized and sold under an execution are liable for accruing or sub- sequent rent. Cases decided upon the subject. — The grantee of a rent- charge, with power to distrain in the same manner as the law directs in case of rent in arrear, may under such power, and the 2 W. & M. sess. 1, c. 5, and 4 Geo. 2, c. 28, s. 5, dis- train oats and hay in stacks or trusses (A). Trees, shrubs and plants growing in lands Avhich the defendants had de- mised to the plaintiffs for a term, and which they had con- verted into nursery ground, and planted subsequently to the demise, are not distrainable by the landlord under the 11 Geo. 2, c. 19, as it applies only to corn and other products of the land which may become ri2:)e, and are capable of being cut and laid up («). Growing crops cannot be sold before they are ripe (^), but where the jury find that no damage has been sustained by the premature sale, the tenant is not entitled to a verdict even for nominal damages (?). A ten- ant's growing crops, taken in execution and sold, and remain- ing on the premises for the purpose of being reaped, [*438] are distrainable by the * landlord for rent become due after the taking into execution {m'). A custom that a tenant may leave his away-going crop in the barns, &c. of the farm for a certain time after the lease has expired, (7) This act is set out verbatim in (k) Owen v. Leigh, .3 B. & A. 470; Appendix A., Sect. 4. Proudlove v. Twemlow, 1 Cr. & M. (/() Johnson v. Faulkner, 2 Q. B. 320. 025; Smith L. & T. 207 (2n(l ed.). (/) RodRcrs r. Parker, 18 C. B. But see Miller v. Green, 2 C. & J. 112; 26 L. .!., C. V. 220; and see H.*}; 8 Bing. 02. Lucas v. Tarleton, 3 II. & N. 116. (;■) Clark i-. Gasknrth, 8 Taunt. (m) 14 & 15 Vict. c. 25, s. 2 ; post, 431, 742 ; Clarke r. Calvert, 3 Moo. Appendix A., Sect. 4, wliere this act 114 ; Amos & F. 310 (2nd ed.), is .set out verbatim. As to the prcvi- 686 Cii.XI. S. 0.] EXEMPTIONS FROM DISTRESS. *438 operates as a prolongation of the term ; and the hxndlord may distrain the corn so left, for rent in arrear, before six months have expired from the determination of the term (w). Corn sown by a tenant at will (who died before harvest), and purchased by another person, cannot be distrained by the landlord for rent due from a subsequent tenant (o). Sect. 9. — The Exemptions from Distress. (a) Fixtures. Fixtures absolutely exempt. — Things annexed to the free- hold, such as buildings and fixtures, constitute, for the time being, part of the freehold, and are absolutely exempt from distress, although there are no other goods on the premises. Therefore furnaces, millstones, chimney-pieces, and the like cannot be distrained, because they cannot be taken away without doing damage to the freehold, which the law will not allow (^) ; and because those things only can be dis- trained for rent which the landlord can afterwards restore in the plight in which they were before the distress, and without injury thereto by the removal (^). So also kitchen ranges, stoves, coppers, grates and other fixtures of the like nature put up by the tenant for the more convenient or prof- itable use of the demised premises, and which he is entitled to sever and remove during the term, are not distrainable for rent (although they may be seized and sold by the sheriff under an execution against the goods of the tenant) (r), ous law, see Wharton v. Naylor, 12 895; Dalton r. Whittem, 3 Q. B. 961 ; Q. B. 673 ; 6 D. & L. 136. Thompson v. Pettitt, 10 Q. B. 101 ; (n) Beavan v. Delahay, 1 H. Blac. Moore v. Drinkwater, 1 F. & F. 134 ; 5; Lewis v. Harris, Id. 7, n.; Kniglit Smith L. & T. 196 (2nd cd.) ; Bullen, V. Bennett, 3 Bing. 364. 92. (o) Eaton v. Southby, Willes, 131. (r) Poole's case, 1 Salk. 368 ; Place (p) Simpson v. Hartopp, 1 Smitli i;. Fagg, 4 M. & R. 277; Bates r. Duke L. C. 439 (7th ed.) ; Amos & F. 314 of Beaufort, 8 Jur. N. S. 270, L. J. ; — 318 (2nd ed.). Amos & F. 321 (2nd ed.) ; Smith L. (7) Co. Lit. 47 b; Pitt v. Shew, 4 & T. 195 (2nd ed.). B. & A. 207 ; Darby v. Harris, 1 Q. B. 687 *439 DISTEESS FOR RENT. [Ch. XI. S. 9. unless the tenant has by his lease or agreement renounced his right to disannex and remove them during the term (n). Railway. — A railway is not distrainable (f). Machinery fixed to the freehold, not for the improvement or profitable use of the land, but only for the purpose of being more con- veniently used as machinery ; for instance, a mule used [*439] for spinning cotton, though sunk into a stone * floor and secured by molten lead, retains its chattel charac- ter, and may be distrained for rent (?t). A mere temporary removal of fixtures for purposes of necessity is not sufficient to destroy the privilege (.r) ; thus a smith's anvil on which he works is not distrainable ; for it is accounted part of the forge, though it be not actually fixed by nails to the shop (^/) ; so a millstone is not distrainable, though it be removed out of its proper place in order to be picked ; because such re- moval is of necessity, and the stone still continues to be part of the mill (y) ; nor a lime-kiln, which is considered not to be a personal chattel, but part of the freehold (2). Keys, &c. — In like manner keys (a), windows, and char- ters concerning the realty, being by construction of law parcel of the freehold, are not liable to be distrained (6). If a landlord, under a distress of rent, sever fixtures from the freehold and dispose of them, he is liable in trover ; the articles may be described in the statement of claim as goods and chattels; and the plaintiff does not thereby waive his right of maintaining that the distress is illegal because fix- tures cannot be distrained for rent in arrear (c). In such action their value as chattels only (not as fixtures) can be recovered (fZ). But it seems otherwise in an action of tres- pass (e). No action can be maintained for a mere construc- (s) Dumcrpue v. Rumsey, 2 II. & (a) 11 Co. R. 50 ; G Exch. 311. C. 777 ; 33 L. J., Ex. 88. ' (6) Gilb. Uistr. 34, 48 ; llellawcll (t) Turner v. Cameron, L. 11., 5 Q. v. Eastwood, Exch. 205. B. 300 ; .39 L. J., Q. B. 125. (r) Dalton v. Wliittem, 3 Q. B. («) Hcllawell v. Eastwood, Exch. 901 ; Smith L. & T. 199 (2n(l ed.). 295; 1 Smith L. C. 391 (Otli ed.). (d) Chirkc r. Ilolford, 2 C. & K. (x) Gorton v. Faulkner, 4 T. R. 540. 667. (e) Tliomj.son 7-. I'cttitt, 10 (). B. (y) Bro. Ahr. tit. Distress, pi. 23; 10] ; Moore r. Driiikw.iter, 1 F. & K. Amos & F. 317 (2nd ed.). 131. (c) Niblet V. Smith, 4 T. R. 504. 688 Ch. XI. S. 9.] EXEMPTIONS FROM DISTRESS. *440 tive seizure of fixtures as a distress, but without any actual seizure or severance or removal thereof (/). (b) Animals Ferce Naturce. When animals ferae naturae may be distrained. — Those things wherein no man can have an absolute and valuable property, such as cats, wild rabbits and animals ferai naturte, cannot be distrained (^) ; but if deer, which are ferse natura3, are kept in a private inclosure (not being a park) for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent (Ji). And deer in a park when reclaimed become personal chattels, and cease to be parcel of the inheri- tance («'), so that it seems they also may be distrained for rent (/c), as likewise may birds kept in cages, as parrots or canaries, and even pheasants and partridges in coops before they can fly, inasmuch as they may be the subject of larceny (/). Dogs. — As for * dogs, they are not indeed the sub- [*440] ject of larceny ; and Lord Coke (m) thought them not to be distrainable, but the better opinion seems to be that they are (n). (c) Croods delivered to a Person in the way of his Trade. Exemption for benefit of trade. — Things delivered to a person exercising a public trade, to be carried, wrought, worked up or managed in the way of his trade or employ, are absolutely exempt from distress, although there are no other goods on the premises (o). Thus a horse standing in a smith's shop to be shod, materials sent to a weaver, or (/) Beck V. Denbigh, 29 L. J., C. (m) Co. Lit. 47 a. P. 273. (n) Davies ?•. Powell, Willes, 48 ; (.9) Co. Lit. 47; Bullen, 90. Bunch v. Kennington, 1 Q. B. 679; (h) Davies v. Powell, Willes, 46. Smith L. &T. 203 (2ncl ed.) ; Bullen, (0 Ford V. Tynte, 2 J. & H. 150 ; 90. And see the question discussed 31 L. J., Ch. 177. in the notes to Simpson r. Hartopp, 1 (/t) Morgan v. Earl of Aberga- Smith L. C. 439 (7th ed.). venny, 7 C. B. 768; Bullen, 90. (o) Simpson v. Hartopp, Willes, (0 Reg. V. Cory, 10 Cox, C. C. 23; 412; 1 Smith L. C. 439 (7th ed.) ; Reg. V. Shickle, L. R., 1 C. C. R. 158; Bullen, 95 ; Smith L. & T. 200 (2nd 38 L. J., M. C. 21. ed.). 689 *440 DISTRESS FOE RENT. [Ch. XI. S. 9. cloth to a tailor to be made up, and the like, are privileged for the sake of trade and commerce, which could not be carried on if such things under these circumstances could be distrained for rent due from the person in whose custody they are {jO-^ ^^^^ although materials delivered by a manufacturer to a weaver, to be by him manufactured at his own house, are privileged from distress for rent due from the weaver to his landlord, yet a frame or other machin- ery delivered by the manufacturer to the weaver along with the materials, for the purpose of being used in the weaver's house in the manufacture of such materials, is not privileged, unless there are other goods upon the premises sufficient to satisfy the rent due {q). The result of the cases has been said to be, that if articles are sent to a place to remain there, they are distrainable, but that if sent for a particular object, and the remaining at the place be an incident necessary for the completion of that object, they are not (r). But this rule wdll not account for all the decisions, and the exemption seems rather to arise solely for the benefit of trade («). Goods pledged wath a pawnbroker are not distrainable for rent due from him, not- withstanding they have remained in his possession above one year without any interest being paid (^). Horses and (p) Co. Lit. 47 a; Gisbourn v. (?) Parsons i-. Gingell, 4 C. B. 545 ; Hurst, 1 Salk. 249; Gibson v. Ircson, 16 L. J., C. P. 227. 3 Q. B. .39; Smith L. & T. 200 (2nd (s) See Lyons v. Elliott, note (/) ed.). infra. (7) Wood v. Clarke, 1 C. & J. 484 ; (0 Swire r. Leach, 18 C. B., N. S. Gibson v. Ireson, 3 Q. B. 39. 479 ; 34 L. J., C. P. 150. ^ Goods delivered in way of trade. — E.xaniplos: A ship at yard for repairs, and the materials, tlioiii^li jjiircliased of tlie sliipbiiildiT, Gildersleeve V. Ault, 10 Q. B. (Ont.) 401 ; but in Clarke v. Millwall Dock Co., 17 Q. B. D. 494, it was held that a ship made by lessee for the owner (and paid for in instalments) was not e.xetnpt because, though in hands of lessee, in the way of his trade it was not ilclirercd to him. Lops delivered at mill to be sawed into deals are exempt, Guy v. Rankin, 23 N. B. 49, and the deals manufactured from them. Price v. Ilall, 2 Quebec, L. R. 88. The exemption would be destroyed if tenant were a joint owner (per Allen, C. J. and Weldon and King,.!. J., in Guy v. Rankin, 23 N. B. 49). It has been lield that a horse sent to a livery stable to be fed and taken care of is exempt. Youngblood v. Lowry, 2 M'Cords (S. C.) .39. 690 Cii.XI. S. 0.] EXEMPTIONS FROM DISTRESS. *441 carriages standing at a livery may be distrained (^ii), but a carriage sent to a coachmaker and commission agent for sale may not (;r), nor may goods warehoused in the ordinary course of business at a furniture depository (y). The privilege has been held not to attach to a boat sent by the * owner to salt works, and left a reasonaljle [*441] time in a canal on the premises, for the purpose of being loaded with salt (2;), nor to a ship in the course of being built in a dock (22), nor to brewers' casks sent to a public-house with beer, and left there until the beer is con- sumed (a). But where a butcher had sent a beast to the shop of another butcher to be slaughtered, and after it had been slaughtered the carcass remained in the shop for some time (but how long did not appear), it was held that the carcass was privileged (6). Goods in hands of factor or agent. — Goods of a principal in the hands of a factor for sale are privileged from distress for rent due from such factor to his landlord, on the ground that the rule of public convenience, out of which the privi- lege arises, is within the exemption of a landlord's general right to distrain (c).i On the same principle goods landed («) Francis r. Wyatt, 1 W. Bl. W. 633; s. c. (in error), 3 M. & W. 483 ; 3 Burr. 1498 ; Parsons v. Gin- 677. gell, supra. (zz) Clarke ik Millwall Dock Co., (x) Findon v. M'Laren, 6 Q. B. 53 L. T. 316, ;)er Pollock, B. 891. (a) Joule v. Jackson, 7 M. & W. ((/) Miles V. Furber, L. R., 8 Q. B. 450. 77 ;" 42 L. J., Q. B. 41 ; 27 L. T. 756 ; (6) Brown v. Shcvill, 2 A. & E. 138. 21 W. R. 262. (c) Gilman v. Elton, 3 Brod. & B. (z) Muspratt v. Gregory, 1 M. & 75. 1 Goods deposited or consigned, &c., in warehouse, Owen v. Boyle, 22 Me. 47 ; Briggs v. Large, 30 Pa. St. 287 ; Karns v. McKinney, 74 Id. 387, 389 (pei- Mercur, J.) or for sale in store of commission merchant, McCreery v. Clafflin, 37 Md. 435; Howe Machine Co. v. Sloan, 6 W. N. C. (Pa.) 265 and (Supreme Court) 87 Pa. St. 438, are exempt from distress. It lias been held that goods taken on storage by an ordinary merchant are exempt. Brown v. Sims, 17 S. & R. (Pa.) 138; Co.inah v. Hale, 23 Wend. (N. Y.) 462. If goods are deposited for sale by one not a commission merchant, it must appear for what purpose they were deposited, Bevan v. Crooks, 7 W. & S. (Pa.) 452 ; and it has been held in Ontario that if a consignee is paid other- wise than by a commission, the goods consigned are not exempt, Hurd v. Davis, 23 Q. B. (Ont.) 123. 691 *442 DISTRESS FOR RENT. [Ch XI. S. 9. at a wharf and consigned to a broker as agent of the con- signor, for sale, and placed by the broker in the wharfinger's warehouse over the wharf for safe custody until an oppor- tunity for selling them should occur, were held not distrain- able for rent due in respect of the wharf and warehouse (c?). Similarly, corn sent to a factor for sale, and deposited b}^ him in the warehouse of a granary -keeper, he not having any warehouse of his own, is under the same protection against a distress for rent as if it were deposited in a ware- house belonging to the factor himself (e). Auctioneer. — Goods sent to an auctioneer to be sold on premises occupied by him, or in an open yard belonging to premises in his occupation, are privileged (/), though the place of sale is merely hired for the occasion, or the occupa- tion has been acquired by the auctioneer by an act of tres- pass (^). But there must be a de facto occupation by the auctioneer, otherwise the privilege is lost. Therefore where an auction was held on a tenant's premises of the tenant's goods, and the goods of the plaintiff were for convenience being sold along witli them, it was held, both on author- ity (Ji) and principle, that, as the auctioneer was in no sense the occupier of the premises, the goods of the plaintiff might be distrained along with those of the tenant (^). Goods at an inn. — The cattle and goods of guests [*442] at an inn,i so long as the}"- remain on * the premises, are exempt from a distress for rent due from the (rf) Tliompson v. Mashiter, 1 Bing. (i) Lyons v. Elliott, L. R., 1 Q. B. 283. D. 210 ; 45 L. J., Q. B. 159; 33 L. T. (e) Mattliias v. Mesnard, 2 C. & P. 80G; 24 W. R. 29(3. Tliis decision has 353. But wine sent to a warehouse been not a little criticised (see Red- merely to be matured has been held man and Lyon, L. & T. 2nd ed., p. not exempt. Ex parte Russell, 18 104) ; but it seems tliat, as the goods W. R. 753. of third parties have never been ex- (/) Adams v. Grane, 1 Cr. & M. empted generally, the burden of proof 380 ; Brown v. Arundell, 10 C. B. 54; is upon each third jiarty to bring him- Willianis r. Holmes, 8 Exch. 801. self within the benefit of the exemp- (c/) Brown v. Arundell, su/na. tion he sets up. (h) Crosier v. Tomkinson, infra. ' Goods of boarders. — ft is held in Pennsi/lrntiia (and was in New York while the law of distress jirevailcd there) that goods of boarders, in their use and possession at liotels or private boarding-houses, arc exein])t from distress. Kiddle v. Welden, 5 Whart. (Ta.) 9; Matthews v. Stone, 7 Hill, 428. 092 Cn. XI. S. 9.] EXEMPTIONS FROM DISTRESS. *442 innkeeper (^). But they must be actually within the prem- ises of the inn itself, and not in any place to which the innkeeper may have removed them for his convenience : thus, where a racehorse was distrained for rent at the stable half a mile distant from the inn, the distress was deter- mined to be a good one, and that the plaintiff had no remedy but against the innkeeper (Z). It was once held that the consent of the landlord to the goods being upon the prem- ises would not avail to prevent his power of distress ; but if such consent were fraudulently given for the purpose of obtaining a distress, equity would relieve upon the ground of fraud: thus, where the servants of a grazier driving a flock of sheep to London, were encouraged by an innkeeper to put the sheep into the pasture gounds belonging to the inn, and the landlord, seeing the sheep, consented that they should stay there for one night, and then distrained them for rent, the grazier was relieved against the distress Qn') (d) Thhigs in actual Use. May not be distrained. — Things in actual use are abso- lutely privileged from distress for rent, or even for damage feasant, because of the danger to the public peace Qn). Therefore a horse, whilst a man is riding upon him, or an (i) Bac. Abr. Inns and Innkeepers (w) Fowkes v. Joyce, 2 Vern. 129 ; (B.) ; Crozier i;. Tomkinson, 2 Ld. 3 Lev. 260; 2 Wms. Saund. 290, n. Ken. 439; Smith L. & T. 204 (2nd (7). ed.). (n) Smith L. & T. 202 (2nd ed.). (/) Crosier i'. Tomkinson, 2 Ld. Ken. 439. Whether the goods must be in actual possession and use was doubtful. In Erb v. Sadler, 8 W. N. C. (Pa.) 13, and Jones v. Goldbeck, Id. .5.33, it was held by the Court of Common Pleas that they must be, and goods fur- nished lessee for use in other parts of house were distrainable. It was so held also in Matthews r. Stone, 1 Hill (N. Y.) 565, reversed by Stone I,'. Matthews, 7 Id. 428 (by divided court). In Marijland formerly goods of boarders were held not exempt at common law, Trieber v. Knabe, 12 Md. 491, by Act of 1868, ch. 173; they are now exempt, but the exemption only applies to goods in possession and use of boarder, Leitch v. O wings, 34 Md. 262. In Delarmre property of boarders in boarding-houses is exempt by statute. Laws of Del. ch. 120, sec. 22. Lodgers. — The goods of lodgers, if they are not also boarders, are not exempt. Lane v. Steinmetz, 9 W. N. C. (Pa.) 574 unless by special statute. See ante, (f), note. "Lodgers." 693 *442 DISTRESS FOE RENT. [Ch. XI. S. 9. axe in a man's liancl cutting wood, or the like, cannot be distrained (o). But a dog used for sporting purposes, or permitted to run into the Avoods, and not led by a string, is not exempt from a distress for damage feasant (jo). Horses, wliilst drawing a cart, and the harness thereon, are exempt from a distress, even for damage feasant (5-). Yarn being carried on a man's shoulders to be weighed cannot be dis- trained any more than a net in a man's hand, or a horse on which a man is riding (r). "Wearing apparel. — It seems that wearing apparel, though taken oif for natui'al repose only, is liable to distress, but that clothes actually in wear are exempt (s). (e) Groods in the Custody of the Law. Cannot be taken. — Goods in the custody of the law are not distrainable for rent ; for it would be repugnant that it should be lawful to take goods out of the custody of the law (^)i Therefore cattle or goods already taken (0) Co. Lit. 47 a ; Storey v. Robin- (/•) Read's case, Cro. Eliz. 594. son, 6 T. R. 138; Field v. Adames, 12 (.s) Bissett v. Caldwell, Peake, 50; A. & E. G49. Baynes v. Smith, 1 Esp. 206. (j)) Bunch V. Kennington, 1 Q. B. {t) Co. Lit. 47 a; Gilb. Distr. 44; 679. Rex V. Cotton, Parker, 120 ; Eaton v. (^) Field V. Adames, 12 A. & E. Southby, Willes, 131; Bullen, 84; 649. Smith L. &T. 204 (2nd ed.). ^ Goods in custodia legis are not distrainable. Brown r. Fay, 6 Wend. (N. Y.) 392 (taken on execution) ; Noe v. Gibson, 7 I'aige (N. Y.) 513 (goods in hands of receiver, landlord should apply to be examined pro interesse suo). In Illinois, where the landlord has a paramount statutory lien upon the crop, it is held that he may distrain, though goods are in custodia lei/is, Mead V. Thompson, 78 111. 02; Tiiomjjson v. Mead, 07 Id. 395; Iladden v. Knicker- bocker, 70 Id. 077 (per Scott, J.) ; Miles i-. James, 30 Id. 399; although he cannot other goods, Hadden v. Knickerbocker, 70 111. 077 ; Ilerron v. Gill, 112 Id. 247 ; Rogers v. Dickey, 1 Gilm. (111.) 030. Though the goods cannot be distrained, yet the landlord has claim to share in proceeds of the goods up to amount of a year's rent in arrears at the time of the seizure, Biiins v. Hudson, 5 Binn (Pa.) 505; Moss's Appeal, 35 Pa. St. 102; Shirreff v. Vye, 24 N. B. 572; Thomas r. Mirehouse, 19 Q. B. 1). 503 ; and he may sue the officer therefor if he does not voluntarily pay it, Thomas v. Mirehouse, and SiiirrclT c. Vye, sujira. It has been held that the landlord may distrain goods taken on execution, if they are released upon interpleader at instance of third party claiming them, the landlord's claim being held superior to the claimant's in inter- pleader. Gilliam j;. Tobias, 11 Phila. 313. In Illinois a landlord may replevy crops upon which he has lien from officer who has levied an execution upon them. Wetsel c. Mayers, 91 111.497. G1J4 Cii. XI. S. 9.] EXEMPTIONS FROM DISTRESS. *443 * damage feasant, or by the sheriff under an execu- [*443] tion, attachment or extent, cannot be distrained for rent whilst in such custody (m). But by 8 Ann. c. 14, s. 1, no goods taken on any lands leased for life, years, at will, or otherwise, shall be taken in execu- tion^ unless the party at ivlw^e suit execution issued, before removal of the goods, pay to the landlord the arrears of rent, if not exceeding one year's rent ; and if more, then the amount of one year's rent, due at the time of the execu- tion (a:). There are similar enactments, with variations, in the acts relating to the County Courts (^), and the Court of Admiralty (z). Fraudulent and irregular executions. — If the sale of goods under an execution be fraudulent, as where a fictitious bill of sale is made, and the goods remain on the premises, they may be distrained for rent (a). And where the execution was irregular, as where a sheriff's officer executed a writ of fieri facias by going to the house and informing the debtor he came to levy on his goods, and laying his hand on a table, said, " I take this table," and then locked up the warrant in the table-drawer, took the key and went away, without leav- ing any person in possession — and after the writ was re- turnable the landlord distrained ; it was held, that it was a lawful distress (6). The goods may be distrained if the exe- cution has been waived ()• (g) Railway Rolling Stock. Marked with owner's name, exempt. — Upon a principle simi- lar to that of the Lodgers' Goods Protection Act, 1871, rail- way rolling stock is protected from distress, in cases where it is not the actual property of the tenant, by the Railway Rolling Stock Protection Act, 1872 (35 & 36 Vict. c. 50). By sect. 3 of this act, '•' rolling stock (c) being in a work (c7) shall not be liable to distress for rent (e) payable by a ten- ant (/) of the work, if such rolling stock is not the actual property of such tenant, and has upon it a distinguishing metal plate affixed to a conspicuous part thereof, or a dis- tinguishing brand or other mark conspicuously impressed or made thereon, sufficiently indicating the actual owner thereof." Restoration. — By sect. 4, " where any such rolling stock as aforesaid is distrained, a court of summary jurisdiction Qj') may make against the landlord such summary order for restoration of the rolling stock, or for payment of the real (b) Sharp V. Fowle, L. R., 12 Q. alty or other reservation in the nature B. D. 385 ; 53 L. J., Q. B. 309 ; 50 L. of rent." T. 758 ; 32 W. R. 539. Here the (/) By sect. 2, this " includes a damages had been agreed upon as lessee, sublessee, or other person 17/., but the action would be for ir- having an interest in a work under a regular distress, and proof of special lease or agreement, or by use and damage would be necessary. See occupation, or being otherwise liable Rodgers v. Parker, 18 C. B. 112. to pay rent in respect of a work." (c) By sect. 2, this "includes wag- (i^) By sect. 2, this "means any ons, trucks, carriages of all kinds, justices of the peace, metropolitan and locomotive engines used on rail- police magistrate, stipendiary magis- ways." trate, sheriff, sheriff substitute, or (d) By sec. 2, this "includes any other magistrate or officer, by what- colliery, quarry, mine, manufactory, ever name called, who is capable of warehouse, wharf, pier, or jetty in or exercising jurisdiction in summary on which is any railway siding." proceedings for the recovery of pen- (e) By sect. 2, this " includes roy- alties." 701 *448 DISTRESS FOR RENT. [Ch. XI. S. d. value thereof, and respecting costs or otherwise, and may make against the person distraining such order in the matter and respecting costs as to the court seems just." Tenant's interest not protected. — By sect. 5, " this act shall not extend to protect from distress the interest which any tenant may have in any rolling stock otherwise [*448] * protected under this act, but such interest may be distrained upon by the landlord, and disposed of in the same manner as the whole interest of such tenant, if he had possessed the same ; and, in case of disagreement between the landlord and the parties claiming such rolling stock as to the mode of disposing of such interest, the same shall be set- tled by the court of summary jurisdiction ; and the court shall, on the application of either party, make such order therein as to the court shall seem fit." Appeal to quarter sessions. — By sect. 6, " If any party thinks himself aggrieved by any order or adjudication of a court of summary jurisdiction under this act, or by dismissal of his complaint by any such court, he may appeal therefrom, subject to the conditions and regulations following; that is to say : — (1) The appeal shall be made to some court of general or quarter sessions for the county or place in which the cause of appeal arises, holden not less than fifteen days and (unless adjourned by the Court of Appeal) not more than four months after the decis- ion of the court of summary jurisdiction : (2) The appellant shall, within seven days after the cause of appeal has arisen, give notice to the other party and to the court of summary jurisdiction of his in- tention to appeal, and the ground thereof: (3) The appellant shall, immediately after such notice, enter into a recognizance before a justice of the peace, witli two sufficient sureties conditioned per- sonally to try such appeal, and to abide the judg- ment of the court thereon, and to pay such costs as may be awarded by the court, or give such other security by deposit of money or otherwise, as the justice thinks lit to allow." 702 Cu. XI. S. 9.] EXEMPTIONS FROM DISTRESS. *449 Exclusion of certiorari. — By sect. 7, " no order or conviction of a court of summary jurisdiction under tliis act shall be quashed for want of form, or be removed by certiorari or otherwise (at the instance either of the Crown or of any private party) into any superior court." (h) Hired Machinery and Breeding Stock. If the Agricultural Holdings Act applies (A), there is an absolute exemption of hired machinery and breeding stock. For it is })rovided by the second paragraph of s. 45 of that act that " agricultural or other machinery which is the bona fide property of a person other than the tenant, and is on the premises of the tenant under a bona fide agreement with him for the hire or use thereof in the conduct of his * business, and live stock of all kinds which is the [*449] bona fide property of a person other than the tenant, and is on the premises of the tenant solely for breeding j5ur- poses, shall not be distrained for rent in arrear." These words will, it is conceived, protect such machinery as is, in accordance with a common practice, on the premises under an agreement that it be paid for, it shall be and remain the property of the person letting it out (i). (i) Cattle^ Beasts of the Plough^ and Sheep. By 51 Hen. 3, stat. 4, no man " shall be distrained by his beasts that gain his land, nor by his sheep, while there is another sufficient distress to be found (except for damage feasant) " (/c). This is in affirmance of the common law (T). Cart colts and young steers, not broken in or used for har- ness or the plough, are not privileged from distress as beasts which gain the land (?«). Beasts of the plough may be distrained if the only other subject of distress is growing crops, because the landlord is entitled to distrain whatever is immediately available, and to hold the growing crops for the (A) Sect. 5, p. 430, ante. (I) 2 Inst. 132. (0 See form, Lely and Pearce-Edg- {in) Keen v. Priest, 4 H. & N. 23G ; cumbe's A^. Hold. Act, p. 299. 28 L. J., Ex. 157. (Jc) Davies v. Aston, 1 C. B. 746 ; 3 D. & L. 188. 703 *450 DISTRESS FOP. RENT. [Cn. XI. S. 9. residue (w). If a landlord distrain, inter alia, his tenant's cattle and beasts of the plough for rent in arrear. and it appear after the sale that there would have been sufficient to satisfy the arrears and expenses without taking or selling such cattle, such distress is not thereby proved to be an illegal distress, contrary to the above statute^ if there were reasonable grounds for supposing (as from the appraisement of proper and competent persons at the time of the taking) that without the taking of the beasts of the plough there would not have been a sufficient distress (o) ; and where beasts of the plough are lawfully taken on a distress, the sale of them need not be postponed to that of other goods (o). Sheep of sub-tenant privileged. — The sheep of a suh-tenmit are privileged from distress for rent if there are other goods on the premises sufficient to satisfy the rent, whether belong- ing to such subtenant or to any other person (j'j). The owner of sheep seized and sold under a distress for rent, which was unlawful because there were other goods on the premises belonging to him which might have been distrained for the same rent, is entitled to recover from the distrainer, not merely nominal damages, but the full value of the sheep so seized (^j)). [*450] * When cattle may be distrained. — Cattle which are upon land by way of agisting may be distrained for rent (^) : and where a stranger put in his beasts to graze for a night, by the consent of the lessor and licence of the lessee, it was held, that the lessor might distrain them for rent due out of those lands which he consented that the beasts should graze on ; because such consent was no waiver of his right to distrain, unless it had been expressly agreed to; and being Ijut a i)arol agreement, it could not alter the original contract between the lessor and lessee, from which the power to dis- train arises (r). It seems to liave been held in one case that cattle wliich are being driven to a market or fair, and are put (n) Piggott V. Birtlcs, 1 M. & W. (/)) Keen v. Priest, 4 II. & N. 230; 441. 28 L. J., Ex. 157. (o) Jt-nner v. YoUand, 2 Cliit. K. (7) IJoll. Abr. GG9. 167 ; Price, 5. (/ ) I'awkis v. Joyco, 3 Lev. 260 ; 2 Vent. 60; 2 Wms. Saund. 290, n. 7. 704 Ch. XI. S. '.).} EXEMPTIONS FKOM DISTRESS. *451 into pasture on the way for one night, are privileged from distress (s). If the landlord come to distrain, and the ten- ant, seeing him,. drive cattle off the land, the landlord may follow the beasts and distrain them out of the premises, if he had once a view of the cattle on his land ; but if the beasts go off the land of themselves before he observes them, he cannot distrain them afterwards Q') ; though if the dis- trainer once enter the premises to distrain the cattle, it seems that they cannot afterwards be driven off to prevent a dis- tress (?t). Defects of fences. — Where beasts escape, and come upon land by the negligence or default of their owner, and are trespassers there, they may be distrained immediately by the landlord for rent in arrear (a;) ; but where they come upon land by the insufficiency of fences, which the tenant or his landlord ought to repair, the lessor cannot distrain such beasts till they have been levant and couchant ; that is, they must be lying down and rising up on the premises for a night and a day without pursuit made by the owner of them, — and after actual notice has been given to the owner that they are there, and he has neglected to remove them (?/), Where cattle passing along a public highway stray into an adjoining field through defect of fences, the owner of the cattle is bound to remove them within a reasonable time, until the expira- tion of which they cannot lawfully be distrained for damage feasant (s). What is a reasonable time is a question for the jury with reference to all the surrounding circumstances (s). In Singleton v. Williamson, the plaintiff was owner of a close A., and the defendant was owner of closes B. and C. Between A. and B. there was a fence which, as against the owner of A., the owner of B. was bound to keep in repair, but which he had neglected to do. Between B. and C. * there was a sufficient fence. The cattle of the [*451] plaintiff strayed from A. through a gap into B., and (s) Tate V. Gleed, 2 Wms. Saund. note (301) ; Kemp r. Crawes, 2 Lutw. 290, n. (/). 1577; 1 Ld. Raym. 168; Bullen, 103. Q) Co. Lit. 161 a. (y) Poole v. Lonoueville, 2 Saund. («) Clement v. Milner, 3 Esp. 95. 289; Smith L. & T. 204 (2nd ed.). (x) Gilb. Distr. 45; Co. Lit. 47 a, (z) Goodwin v. Clievcley, 4 PL & N. 631 ; 28 L. J., Ex. 298. 705 *451 DISTRESS FOR RENT. [Cii. XI. S. 9. there breaking down the fence between B. and C, were distrained by the defendant as, he alleged, damage feasant in C. It was held, in trover to recover the cattle, that the de- fendant had no right to distrain the cattle, as the first wrong- ful act had been committed by himself in leaving the fence between B. and A. insufficiently repaired, the natural result of which wrongful act was the damage complained of ; and that the jury were properly directed that the state of the fence between B. and C, and whether or not the cattle were damage feasant, was immaterial (a). It may be added here that by 11 Geo. 2, c. 19, s. 8, every landlord may take and seize, as a distress for arrears of rent, any cattle or stock of his tenant feeding or depasturing upon anil ^ommo7i appendant or appurtenant, or any ways belong- ing to any part of the premises demised ; and that by 56 Geo. 3, c. 50, s. 6, cattle feeding on crops sold under the provisions of that act cannot be distrained (6). (j) The Tools of Trade. Tools of trade. — The tools and imijlements of a man's trade are absolutely privileged from distress for rent, if they be in actual use at the time ((^-'). If they be not in actual use, they are only privileged, in case there be no other dis- tress upon the premises (jT). But the distrainer is a tres- passer ab initio only as to those particular goods which were not distrainable ; the distress may be valid as to the residue, and a satisfaction pro tanto of the rent (e). Ledgers, day- books, vouchers and other business papers seem not to be distrainable. In one case the plaintiff recovered 40s. dam- ages in trespass against the landlord and his l)roker for an illegal seizure thereof undiir a distress (/). Books. — In commenting upon the dictum ol: I^ord Coke, that the books of a scholar would be privileged from distress, (a) Sin^tlf'ton v. Williamson, 7 II. (d) Nargett v. Nias, 1 E. & E. 430; & N. 410; :n L. J., Ex. 17. 28 L. J., Q. B. 148. (/») See this act, i. Dunnery, Hob. 208 ; 213; Lee i\ Smith, 9 Excli. GG2. Kinrl v. Amniory, Ilutton, 23. (//) Buckley i: Taylor, 2 T; R. GOO ; (hj Co. Lit. 47 b ; Pennant's case, M'Leish r. Tate, Cowp. 781 ; Tracey 3 Co. R. ()4 ; Williams v. Stiven, 9 Q. V. Talbot, Mod. 214 ; Jenner v. B. 14 ; Bullen, 120. Clc'gg, 1 Moo. & R. 213; Lee v. Smitli, (r) Semble, pei- Willes, J., in Grim- 9 Exch. 0G2. wood v. Moss, 42 L. J., C. V. at p. (z) Giles V. Spencer, 3 C B., N. S. 240, that this docs not include deter- 244 ; 26 L. J., C. P. 237. mination hy forfeiture. In Pennsijlvania it is held that landlord has claim upon goods levied upon prior to accruing of the rent, for rent up to the time of seizure, which may be apportioned, though in the middle of the rent period, Anderson's Appeal, 3 Pa. St. 218; West v. Sink, 2 Yeates (Pa.) 274; Binns v. Hudson, 6 Binn. (Pa.) 505; though it is there considered (per Gibson, C. J., in Anderson's Appeal, supra) that the court of Pennsylvania have stretched the statute in the interest of equity. (/;) Under stnlntes. — In Illtnols (Sts. ch. 80, sec. 35) if tenant remove or is about to remove his crops from the demised premises before tlie rent accrues, the landlord may distrain, or if the tenant himself remove (sec. 33). Jn Mississii>pi landlord may have an attachment ujion affidavit, that tenant is about to remove his elfects from demised premises (Rev. Code, ss. 1304- 1347). //* (leorgla likewise (Code, sec. 2285). 710 Cm. XL S. 10.] PROCEEDINGS IN DISTRESS. *454 arrears after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or deteimined : " "provided that such distress be made within the space of six calendar' months after the determination of such lease, and during the continuance of such landlord's title or interest, and dur- ing the possession of the tenant from whom such arrears became due." ^ Before this act, if rent had been reserved payable, say at Lady-day and Michaelmas, the lord would have lost his remedy by distress for his last half-year's rent ; for he could not have distrained for it until it was in arrear, and before then the term would have ended (t^). Distress on part after lease determined. — Where the tenant is allowed to hold over part of the demised property, the landlord may distrain on that part (g). And where the term is prolonged as to part by the custom of the country the landlord may distrain although the six months have ex- pired (/). Nor does six months' limit apply to a case where the landlord was a tenant for the life, and the term is pro- longed till the end of the current year, under tlje statute 14 & 15 Vict. c. 25, s. 1, in lieu of emblements (^). (d) Co. Lit. 47 b; Bullen, 120; 5; Knight v. Bennett, 3 Bing. 364 ; Smith L. & T. 222 (2nd ed.). Griffiths v. Puleston, 13 M. & W. (e) Nuttall V. Staunton, 4 B. & C. 358. 51. (.9) Haines v. Welch, L. R., 4 C. P. (/) Beavan v. Delahay, 1 H. Blac. 91 ;' 38 L. J., C. P. 118. • 1 Distress after expiration of tenancy. — The statutory right of dis- training within six montlis exists generally in America. Distress in most of the states cannot be made after more than six months. Werner v. Ropiequet, 44 111. 522. In case of a lease from year to year, the first year's rent may be distrained for more than six months after the end of the year. McClenaghan V. Barker, 1 Q. B. (Ont.) 26. In Pennsijlcania the time is unlimited. (Act of Mar. 21, 1772; 2 Purdon's Dig. p. lOli; Moss's Appeal, 35 Pa. St. 162; Lewis's Appeal, 66 Id. 312.) After expiration of landlord's interest distress cannot be made. Hartley v. Jarvis, 7 Q. B. (Ont.) 545. After tenant has abandoned possession distress cannot be made, Bukup V. Valentine, 11) Wend. (N. Y.) 554; Williams v. Terboss, 2 Id. 148, except in the cases provided by statute. If tenant surrenders between rent days,- the right of distress as well as rent for that quarter is extinguished, Greider's Appeal, 5 Pa. St. 422 ; though landlord is entitled to the emble- ments, Bain v. Clark, 10 Johns. (N. Y.) 424. 711 *455 DISTRESS FOR RENT. [Ch. XI. S. 10. In case of death of tenant, &c. — Where the original tenant dies and his representative enters, the hxndlord may distrain upon the latter within six months after the end of the term (A). But where a tenant at will dies and his widow remains in possession, no distress can be made, because not only the tenancy but also the possession of the tenant from whom the arrears became due has ceased (^). Where the tenant of a farm remained a few days after the expiration of his term, and, after entr}^ by a new tenant, went away, leav- ing a cow and some pigs, but giving no further intimation of a purpose to return or to continue holding any part of the farm, it was held, that the landlord could not justify distrain- ing the goods so left for arrears of rent, under this statute, inasmuch as the possession of the tenant had ceased (A;). (b) What arrears recoverable. Ouly six years' arrears of rent are recoverable by distress in ordinary cases, and if the Agricultural Holdings Act applies (I}, only one year's arrears are so recoverable.^ By 3 & 4 Will. 4, c. 27, s. 42, " no arrears of rent [*455] 01 interest in * respect of money charged on rent, or damages in respect of arrears, shall be recovered by distress, action or suit, but within six years next after the same shall have become due, or next after an acknowledg- ment of the same in writing shall have been given to the person entitled thereto or his agent, signed by the person by whom the same was payable or his agent." This set lit m (A) Braithwaite ?•. Cooksoy, 1 II. (i) Taylcrson v. Peters, 7 A. & K. Blac. 405 ; Smitli L. & T. 220 (2nd 100. ed.). (/) Ante, Sect. 5, and post. (/) Turner v. Barnes, 2 B. & S. 435; 31 L. J., Q. B. 170. ' Limit of time to distrain in America. — In most of the states there is no express statutory limit as to the time within whicii a distress must be made. In Ontario it must be within ten years of the time the rigiit to di.strain accrues (Rev. Sts. ch. Ill, sec. 4) ; in F/Vf//«i«, witiiin five years (Code, sec. 2790) ; in West Virr/inin, one year (Code, cii. 93, sec. 10) ; in Dehucnre, two years (Laws of Del. ch. 120, sec. 44). In Kentnckij the landlord (to secure his superior lien for one year's rent) must distrain upon ordinary pei'.soiiaity within ninety days, or upon crops within one hundred and twenty days (Gen. Sts. ch. UO, sees. 12, 13). 712 Cxi. XI. S. 10.] PROCEEDINGS IN DISTRESS. *455 applies to rents reserved on ordinary leases (w). But it is well observed by Mr. Smith (n) that the power to distrain for this limited amount is not lost hy reason of the mere non-payment of rent for any time short of the period after the lapse of which the right to recover the land is gone ; and we shall see presently tliat, although only six years of rent can be recovered by distress, twenty years' arrears may be recovered in an action of covenant (o). Right must have accrued within 12 years. — By the Real Prop- erty Limitation Act, 1874 (37 & 38 Vict. c. 57), s. 1, "no per- son shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims ; or if such, right shall not have accrued to any person through whom he claims, then within twelve years next after the time at which the right to make such entrj- or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same." The subsequent sections show when the right is to be deemed to have first accrued. It has been established, however, by authority, that the repealed second section of 3 & 4 Will. 4, c. 27, with which the above section is sub- stantially identical, excepting that the period of twelve is substituted for the period of twenty years, does not apply to rent reserved on a demise (which is a mere incident to the reversion), but to rents wherein a distinct estate may be had independently of any title to the land out of which the rent issues (^), ex. gr. an ancient quit rent (9-), a fee farm rent reserved in letters patent (r). The right to distrain, there- fore — for six years' arrears — subsists as long as the relation (wi) Humfrey v. Gery, 7 C. B. B. (p) Grant v. Ellis, 9 M. & W. 113; 567; Manning V. Phelps, 10 Exch. Archbold r. Scully, 9 H. L. 360. See 69. criticism of the decisions in the Jurist («) Smith L. & T. (2nd ed. p. 190), Newspaper, 9 Jur., N. S., Pt. II., p. citing Doe v. O.xenham, 7 M. & W. 315. 131. ((/) Owen v. De Beauvoir, 16 M. & (o) Post, Chap. XIII., Sect. 1, "Ac- W. 547 ; 5 Exch. 166. tinn on Covenant for rent ; " Paget v. (r) Humfrey v. Gery, 7 C. B. 567. Foley, 2 Bing. N. C. 679. 713 *456 DISTRESS FOR RENT. [Ch. XI. S. 10. of landlord and tenant subsists, and for the whole length, however long, of a term created by deed, notwithstanding the non-payment of the rent for any number of years (s). Distress on Agricultural Holding. — If the Agricultural Holdings Act applies (^), only one year's arrears of rent are recoverable by distress. For it is enacted by s. 44 of [*456] that * Act that " it shall not be lawful for any land- lord entitled to the rent of any holding to which the Act applies to distrain for rent which became due more than one year before the making of such distress." But in • order to provide for the continuance without loss to the landlord, of the very common practice of deferring the col- lection of rents from the day at which they became due to a day later by a quarter or half-year than such day, this important proviso is added : — Deferring collection. — " Where it appears that according to the ordinary course of dealing between the landlord and tenant, the payment of the rent has been allowed to be de- ferred until the expiration of a quarter of a year or half a year after the date at which such rent legally became due, then /or the purpose of this section the rent shall be deemed to have become due at the expiration of such quarter or half-year as aforesaid, and not at the date at which it legally became due." The words " for the purpose of this section " are impor- tant as showing that the proviso does not turn the deferred date into a legal date absolutely, but merely for the purpose of fixing the time for a distress. With regard to the exact periods of quarters and half-years, it seems that if a longer period than these shall have been allowed, the landlord will be able to count from the end of tlie quarter or half-year forming part of such longer period, but that if a shorter period shall have been allowed, such shorter period cannot be taken into account at all. {s) See Grant v. Ellis, 9 M. & W. & W. 131. As to ejectment, see post, 113 ; Doe d. Davcy v. Oxeiihani, 7 M. Cliap. XX., Sect. 1 (b). (0 Ante, Sect. 6. 714 Cii. XI. S. 10.] PROCEEDINGS IN DISTRESS, *457 (c) W/irre Distress must he made.^ By the Statute of Marlebridge (52 Heil. 3, c. 15), " it shall be huvful for no man from henceforth for any manner of cause to take distresses out of his fee, nor in the king's highway, nor in the common street, but only to the king and his officers having special authority to do the same." Distress must be on land. — As a general rule, the distress must be made on the land from whence the rent issues, and elsewhere (t*), except in the case of the king (or queen regnant), who may distrain on any of his tenants' lands wherever situate (^x), and except in the case of fraudulent removals (y), and distresses for gale rents of quarries in the Forest of Dean (2). A further important exception, that the parties may by agreement arrange for a right of distress upon land other than that out of which the rent issues, was established by the Exchequer Chamber in Daniel v. Step- ney (a). * Two separate demises, &c. — Where two pieces of [*457] land are let by two separate demises, although both are contained in one deed, a joint distress cannot be made for them ; as that would be to make the rent of one issue out of the other (6). Where a single rent issues out of land in the occupation of several tenants, a distress may be made for the whole amount upon the land of any one of them (f). Distress on part. — The distress may be made upon ani/ part of the land, as the entire rent issues out of the whole and every part (ri). Where the tenant of a farm holds over part of it after the expiration of the term, pursuant to some clause in the lease or the custom of the country, a distress («) Co. Lit. 161 a ; Gilb. Distr. 40; (a) L. R., 9 Exch. 185. Bullen, 124; Com. Dig. Distress (A. (6) Rogersi>.Birkniire,2 Stra. 1040; 3), (B. 1) ; Capel v. Buzzard, 6 Bing. Rep. temp. Hardw. 245. 150; 3 B. & J. 334; Smith L. & T. (c) 1 Roll. Abr. 671; Bullen, 12.-); 211 (2nd ed.). Woodcock v. Titterton, 12 W. R. 685, (x) 2 Inst. 132 ; Com. Dig. Distress Q. B. (A. 3) ; Smith L. & T. 211 (2nd ed.). (d) Com. Dig. tit. Distress (A. 3) ; ((/) Post, 467. Bullen, 125; Woodcock v. Titterton, (z) 59 Geo. 4, c. 86, s. 7. supra. 1 See (inte, sec. 1, notes 715 *458 DISTRESS FOR RENT. [Cn. XI. S. 10. may be made on that part for all the arrears within six months after the expiration of the tenancy («). Where by indenture A. demised to B. a wharf, next the River Thames, described by abutments, together with all ways, paths, pas- sages, easements, profits, commodities and appurtenances whatsoever to the said wharf belonging ; and l)y the indent- ure the exclusive use of tliQ- land of the river Thames oppo- site to and in front of the wharf between high and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but the land itself between high and low water mark was not demised: it was held that the lessor could not distrain for rent in arrear barges the prop- erty of B. lying in the space between high and Ioav water mark, and attached to the wharf by ropes (/)• But where a tenant rented a stable, and was in the habit of keeping his cart on a part of the road adjoining the stable, which had been paved for that purpose by his landlord : held, that a distress for rent might be made of the cart whilst on the paved part of the road, which must be considered as part of the demised premises ((/). Lands in different counties. — Where lands lying in differ- ent counties are held under one demise at one entire rent, a distress may be lawfully taken in either county for the whole rent in arrear, and chasing a distress over is a continuance of the taking ; but where the counties do not adjoin, a dis- tress cannot be chased out of one county into the other (1i). Distress on highway. — By the Statute of Marlebridge ("52 Hen. 3, c. 15) no person can make a distress on the high- way, it being privileged for the convenience of passengers and the encouragement of commerce (i) ; but it [*458] * would seem that where a farm adjoins a liighway, goods standing in the highway, within the middle of (c) Nuttall V. Staunton, 4 R. & C. (7) Cillinglium v. Gwyes, 1(5 L. T. 51; Beavan v. Dclaliay, 1 II. Blac. 640, /ic/- Lush, J. 5; Lewis v. Harris, Id. 7, note (a); (/i) Walter?;. Iluniball, 1 Ld. Kayni. Knijiiit V. Bennett, .3 Bing. m\; Rul- C5 ; 12 Moil. 77; 1 S.ilk. 'IM. len, 121, 125. (/) Co. I-it. 100 b; Uilb. Distr. 51 ; (f) Capelv. Buszard, Binjr. 150; Builen, 125. :'. Y. & J. -AH ; 8 B. & C. 141 ; Builen, l-.M. 7tG Cn. XI. S. 10.] TROCEEDINGS IN DISTRESS. *458 it, and on that i)art of it next the demised premises, may be distrained (Jc). If the hindlord or his agent come to distrain cattle which he sees upon the land, and the tenant or any other person drives the cattle off the land, the landlord or his agent may then follow them and distrain them, even on the highway: but if he havt? no»view of the cattle whilst on the land, although the tenant drive them off purposely to prevent a distress ; or if the cattle themselves, after the view, go out of the fee, or the tenant or any other person, after the view, remove them for any other .purpose than that of preventing a distress ; in these cases the landlord or his agent cannot distrain them (V). Cases of fraudulent removal to avoid a distress are considered hereafter (m). Distress on commons. — By 11 Geo. 2, c. 19, s. 8, landlords are enabled to take as a distress for rent any cattle or stock belonging to their tenants depasturing upon any common appendant or appurtenant or in any way belonging to the premises demised. This enactment does not extend to a distress for a rent-charge (n). (d) Of the Mode of a Distress, and of the Distress Warrant. By whom, and who may be bailiff. — A distress may be made either by the landlord himself, or, as is now the usual practice, by his authorized agent or bailiff (o).^ The Statute of Westminster 2nd (13 Edw. 1, stat. 1, c. 37), which enacts that no distress shall be taken except by bailiffs " sworn and (k) Hodges v. Lawrence, 18 Just. (m) Sect. 8 (d). Peace, 347, Ex. 00 Bullen, 12G. (/) Co. Lit. 161 a; 2 List. 132; (o) Smith L. & T. 222 (2ud ed.) ; Clement v. Milner, 3 Esp. 95; Bullen, Bullen, 129. 125, 120; Smith L. & T. 212 r2nd ed.). 1 Distress, how^ made in America. — In many of the American states a landlord cannot issue a distress warrant, but must apply to a magistrate or court therefor. Maryland (Rev. Code, Art. 67, sec. 8) ; Virginia (Code, sec. 2790) ; West Virginia (Code, ch. 93, sec. 10) ; Kentucky (Gen. Sts. ch. 66, sec. 4) ; Georgia (Code, sec. 4082) ; Florida (Dig. ch. 137, sec. 2) ; Missis- sippi (Rev. Code, sec. 1302); Texas (Rev. Sts. sees. 3112, 3114), &c. ; and generally in those states the warrant must be served by a legally qualified oflacer. In several of the provinces and states the landlord may still issue his own warrant. 717 *459 DISTRESS FOR RENT. [Ch. XI. S. 10. known," does not apply to distresses taken for rent in arrear (/')• ^^ would seem that an infant cannot be a bailiff (([). A person employed as a distraining broker, if engaged in the service of the landlord only, and paid a salar}^ by him, is a servant within the meaning of 24 & 25 Vict. c. 96, s. 67, and ^nay be found guilty of embezzle- ment (/•). Distress on agricultural holding by certificated bailiff. — If the Agricultural Holdings Act applies (s), the distress must be levied by a certificated bailiff. For it is enacted by s. 52 of that act that " no person shall act as a bailiff to levy any distress " on a holding subject to the act " unless he shall be authorized to act as a bailiff by a certificate in writing under the hand of the judge of a county court." Upon a strict reading of s. 61 of the act, this would mean the county court of the district in which the holding is situate, but it has ■ been held that the certificate of any county court [*459] judge is sufficient (i). A * certificated bailiff may, by 'the same section, be moved by the judge for extortion. Effect of levy by uncertificated bailiff. — An uncertificated bailiff would, by levying, perhaps render himself liable to in- dictment, and would certainly render a landlord knowingly employing him liable to an action for irregular distress. It appears that if a landlord choose to levy himself, there is nothing in the section to prevent an uncertificated bailiff working out the distress by sale. An isolated transaction, as well as engaging in the business generally, seems to be within the section (m). Landlord liable for irregular acts. — Care should be taken to select a proper bailiff, for the landlord is personally respon- sible for all irregular acts committed by his bailiff in the mak- ing of a distress: ex. gr. for distraining goods to an excessive (p) Begbie v. Hayne, 2 Bing. N. C. (s) Sect. 5, ante. 124; Cliild y. Chaiiil)crlain, C. & P. (<) Sanders, Tn re, Ex parte Sor- 213. gcant, 54 L. J., Bank. ;W1. (7) Cuckson V. Winter, 2 Man. & («) See Lely & IVarce-Edge- H. ;j13. ennibe's Agricultural Holdings Act, (r) Reg. V. Flanagan, 10 Cox C. C. p. 130. w; 1 . 718 Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *459 amount ; for selliiit^ without five days' notice ; for selling without a proper appraisement ; for not selling for the best price ; for making extortionate charges ; for not leaving the overplus in the hands of the sheriff, under-sheriff or constable; and the like (a;). Landlord npt liable for unauthorized illegal acts. — But the landlord is not liable for illegal acts committed by his bailiff, which are not authorized by the warrant of distress or other- wise (?/), especially where he disclaims and repudiates such acts immediately they come to his knowledge (z). A slight recognition by the landlord of what has been illegally done on his behalf may amount to an adoption and ratifica- tion of such illegal acts, and so render him personally liable for them (a).^ (a:) Haseler v. Lemoyne, 5 C. B., {z) Hurry v. Rickman, 1 Moo. & R. N. S. 530 ; 28 L. J'., C P. 103; Ward 126. V. Shew, 9 Bing. 608; Dawe v. Cloud, (a) Haseler r>. Lemoyne, 5 C. B., N. 14 L. T. 155. S. 630 ; 28 L. J., C. P. 103. (?/) Freeman v. Rosher, 13 Q. B. 780". 1 Liability for illegal distress. — Aside from special statutory remedies, landlord is liable in trespass if distress is wholly illegal, as, if no rent is due, Benson v. Anderson, 4 H. & J. (Md.) 315 ; Fretton v. Karclier, 77 Pa. St. 423; or if landlord abandon distress witliout consent of lessee and distrain again, Everett v. Neff, 28 Md. 176. Trespass ab initio. — He becomes a trespasser ab initio if he sells the goods without tirst ajipraising and advertising them, Kerr v. Sharp, 14 S. & R. (Pa.) 399; Quinn v. Wallace, 6 Whart. (Pa.) 400; or if he appraise them prematurely, Brisben v. Wilson, 60 Pa. St. 452. Mere failure to give notice of distress without sale does not make Iiim a trespasser. M'Kinney v. Reader, 6 Watts (Pa.) 34; Keller v. Weber, 27 Md. 660 ; Johnson v. Black, 9 W. N. C. (Pa.) 438. Distraining or completion of sale after tender of balance of rent renders the landlord liable as a trespasser ah initio. Rees ;;. Emerick, 6 S. & R. (Pa.) 286 ; Richards v. McGrath, 100 Pa. St. 389. Liability of officer. — The landlord's bailiff is also liable for distraining illegally (as, for example, when no rent was due). Wells v. Hornish, 3 Penn. 30. Of course, if officer have warrant issued by magistrate and ivant of author- it ii did not appear, he would be protected (except for his own wroiigfiil acts). Trespass will lie against landlord and officer for breaking and entering. Cate V. Scliaum, 51 Md. 299. Trover lies against landlord for distraining exempted goods, Briggs v. Largo, 30 I*a. St. 287; or for distraining off premises, Fraser v. McFatridge, 1 Russ. & Geld. (N. S.) 28, &c. 719 *460 DISTRESS FOE RENT. [Cii. XI. S. 10. Distress warrant. — Where the bailiff distrains he should properly have a warrant or authority in writing from his employer, which is commonly called a " warrant of distress " or a " distress warrant" (5). The warrant did not require a stamp under the old Stamp Acts (y r. Header, Watts (Pa.) 34, though it is actionalile. Double damages. — The special statutory remedy of action for doulde d:im:ii:(s cxi.Hts in many of the states. The officer also is liable. McElroy v. Dice, 17 Pa. St. 103. 720 Cii. XI. S. lO.J TROCEEDINOS IN DISTRESS. *460 taken (i).i Where, in replevin against a broker, it is proved that the landlord employs the solicitor to defend the broker, that is sufficient evidence of the broker's authority to distrain in the absence of any written warrant (^). So where a dis- tress was made in the name of a person who was dead, a rec- ognition of it by the executor was held good (?). Where a warrant of distress was addressed to Messrs. U\, or their agtint, and their clerk erased the name of T. and substituted that of W., by whom the distress was made, and the land- lord's agent who had signed the warrant knew of the distress being so made, and communicated with W. respecting it : it was held, that the employment of W. was sufficiently auth- orized by the agent to make the latter liable on an indem- nity given by him to T. (m). Indemnity to broker. — Generally speaking, a warrant of distress creates an express or implied indemnity to the bailiff and his assistants against actions (in any form) which are maintainable on the ground that the landlord had no legal right to distrain. But the indemnity does not extend to ille- gal acts, nor to those irregular acts for which the landlord is responsible to the tenant (w). On the contrary, the landlord has a remedy over against the bailiff for any loss or damage he may have sustained by reason of such negligence or mis- conduct (o). Where a landlord gave authority to a broker to distrain the goods of his tenant, and an indemnity against all costs and charges that he mig^ht be at " on that account," and upon making the distress, the broker's men, being told by the son of the tenant that a cask contained spent liquor of no value, took the cask to pieces and let the liquor run off, when in fact it was cochineal dye belonging to a third person, who for wasting it recovered damages in trover against the broker: it was held, that he could not recover (0 Gilb. "Distr. 32 ; Ero. Abr. tit. (/) Whitehead v. Taylor, 10 A. & Traverse, 3 ; Lamb r. Mills, 4 Mod. E. 210. 378; TreviUian ;•. Tine, 11 Mod. 112. (m) Toplis v. Grane, 5 Bing. N. C. (k) Duncan v. Meikleham, 3 P. & 636 ; 7 Scott, 620. C. 172. (n) Ante, 459. (o) 2 Chit. PI. 503 (7th ed.). 1 Jean v. Spurrier, 35 Md. 110. 721 *461 DISTRESS FOR RENT. [Ch. XI. S. 10. the amount of those damages from the landlord in an action on the indemnity ; and that such an indemnity could apply only to such cases where the distress was illegal, because the landlord had no right to distrain (jo). Where the [*461] landlord's agent employed a broker to levy * a dis- tress on the premises of an auctioneer, and urged him to make the levy forthwith as there was a large quantity of furniture in the auction room, and by the warrant he directed him to distrain the several goods and chattels on the prem- ises, whereupon the broker seized all the goods, but some of them turned out to be privileged from distress : it was held^ that an indemnification of the broker was implied to be given by the agent (jq). But it seems that in ordinary cases a broker, who takes goods which are privileged from distress, cannot look for an indemnity from his employer (jcf). Where the warrant of distress contained the following clause : — " And for your so doing this shall be your sufficient warrant and authority and indemnification against all costs and charges in respect of any law expenses, action or actions, that may arise, as well as any other and all other charges or expenses which you or your agent may be at or be brought against you or your agent on this account : " it was held, that the indemnity extended to the costs of defending an action of trover wrongfully brought by the tenant (who ad- mitted the tenancy and the rent being due) against the land- lord's agent for goods taken under the distress, in which action the tenant was nonsuited (r). Outer door may not be broken open. — The outer door of the tenant's house cannot lawfully be broken open in order to make a distress (s) ; ^ but if tlie outer door be open, the person distraining may justify breaking open an inner door {[>) Draper v. Thompson, 4 C. & P. (r) Ibbett v. De La Salle, H. & 84. N. 2.3:]; .SO L. J., Ex.44. (9) Toplis J'. Grane, 5 Bing. N. C. (.s) Somayne's case, 5 To. R. 01 ; 1 636. Smith L. C. 114; Smith L. & T. 2.2Z (2nd cd.). ' Entry, how made. — (a) At rommon law, if liiiidlord or bailiff broak and enter outer door, he is guilty of trespass. Mayfield i-. White, 1 Bro. (Pa.) 241 ; Russell v. Buckley, 25 N. B. 2fi4, overruling Myers c Smith, 4 Allen (N. B.) 207. 722 Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *462 or lock to find any goods which are distrainable (<). A landlord is not justified in breaking open the outer door of a stable, though not within the curtilage (m), nor in forcibly opening a padlock on a barn door (2;), nor in breaking open gates or breaking down enclosures (^). But in order to dis- train he may climb over a fence and so gain access to the house by an open door (2) ; he may also open the outer door by the usual means adopted by persons having access to the building, as by turning the key, lifting the latch, or drawing back the bolt (a) : but he may not put his hand through a hole in the door, or through a broken pane of glass, and remove a bar, window-latch, or other fastening, those not being the usual or accustomed modes of obtaining admission to the premises (^). Distress through open window. — An entry to make a dis- tress through an open window is lawful (c). * But if the distrainer break open a window, or [*462] even unfasten a hasp, or open an unfastened win- dow ((^), it is illegal, and the distress void ah initio (e) It is (<) Browning v. Dann, Bull. N. P. the Common Pleas, but Eldridge v. 81 ; Co. Lit. 161 (a) ; Smith L. & T. Stacey was not cited in that case. 223 (2nd ed.). (a) Ryan v. Shilcock, 7 Exch. 72; (u) Brown v. Glenn, 16 Q. B. 254. 21 L. J., Ex. 55. (x) 9 Vin. Abr. 128, Distress (E. (6) Fitz. Abr. tit. Distress, pi. 21 ; 2), pi. 6. cited 7 Exch. 76 ; Hancock v. Austin, (y) Co. Lit. 161 a; cited 16 Q. B. 14 C. B., N. S. 634; 32 L. J., C. P. 255, 257, and in 7 Exch. 73. 252. (2) Eldridge v. Stacey, 15 C. B., N. (c) Nixon v. Freeman, 5 H. & N. S.458; 12 W. R. 51 ; see contra, Scott 647, 652 ; 29 L. J., Ex. 271. V. Buckley, 16 L. T. 573, Byles, J., (d) Nash v. Lucas, L. R., 2 Q. B. after consulting the other judges of 590; 8 B. & S. 531. (e) Attack v. Bramwell, 3 B. & S. Entry through gate fastened by hook and staple on inside is a trespass. Gate V. Schaum, 51 Md. 299. Landlord may open door of house or barn in ordinary way, by lifting latch, or, if some one else has forcibly broken it open, he may enter thereafter. Dent V. Hancock, 5 Gill (Md.) 120. (b) Under statutes. — Several states have special statutes, authorizing offi- cers serving distress warrants to forcibly break open doors, as Virginia (Code, sec. 2793) and West Virginia (Code, ch. 93, sec. 13). In New Jersey, if goods are carried away to avoid rent, landlord may, with aid of a constable, break and enter a house, barn, stable, &c., first making oath that there is reasonable ground to suspect such goods are therein. Revision of N. J. pp. 311, 312, sec. 16. 723 *462 DISTRESS FOR RENT, [Ch. XI. S. 10. legal, however, further to open an already partly-oi3en win- dow, for the purpose of effecting an entry to distrain (/), even if the window be open but two or three inches (,^).^ Re-entry to distrain. — Generally speaking, a second distress for the same rent cannot lawfully be made -where the first has been abandoned (Ji). " Abandonment." — But " abandonment " does not always take place by a mere leaving of the premises, otherwise the distrainer would lose his remedy by a forcible ejectment. Thus where the defendant, having with him a constable, had entered the plaintiff's house to make a distress for rent ; and after he had stated his business and began to take an inven- tory, the plaintiff's wife tore his paper, beat him and the con- stable out, and then blocked up the door ; upon wdiich, about an hour afterwards, the defendant, with several others, re- turned and demanded admittance, which, being refused, he broke open the doors : it was held by Wilmot, J., that the distress having been lawfully begun and not deserted, but the defendant having been compelled to quit by violence, there was a recontinuance of the first taking, and so the second entrance was lawful, though the defendant could not, wlien he first came, have so broken open the door (i). When a person has once peaceably entered to distrain, and has been forcibly put out, he may legally break open a door or window to re-enter and complete the distress : but if he has merely got his foot or arm between the door and lintel, or by putting a pair of shears, or a stick, between the door and lintel, and so preventing the door being closed, that is not a sufficient entry to entitle him afterwards to break open a door or win- dow to distrain (^). Where a man put in possession under a distress left tlie house for a purpose not necessay, but rea- sonably convenient, for a sliort time, and being forcibly kept 520; 32 L.. I., Q. B. 140; Hancock i-. (h) Aa to "second distress," see Austin, supra. post, Sect. 11. (/•) Crabtree v. Hobinson, L. R., (/) Ksp. N. T. 382. 15 Q. IV I). 313; 33 W. R. 936, per (k) Boyd v. Trofaze, 10 L. T. 431, Manisty and Field, JJ. per Mellor, J. 1 Opening a TArindow^, shut, but not fastened, was iieid unhnvful in Gate V. Sdiauni, 51 Md. 2i)!). 724 Cii. XL S. 10.] PROCEEDINGS IN DISTRESS. *463 out, broke the outer door : it was held, that there was not an abandonment of the distress, and that he was justified in breaking the outer door for the purpose of re-entering (^). But where a broker's man, having taken possession of prop- erty under a distress, and remained two days, left the house in a state of excitement bordering on insanity ; and the land- lord, thinking that his leaving had been procured by the drugging of his liquor by the parties in the house (which was not proved), six * days afterwards broke [*463] into the house and took away the goods without any previous demand of admission ; it was held, that he had no right to enter again after so long a delay, and that the owner of the goods might maintain trover for them (m). Abandonment is a question for the jury. — It is always a question for the jury whether there has or not been an aban- donment (w). Thei-e is no abandonment of a distress where the distrainer, having seized the goods of a stranger on the premises without having given him notice of the distress, permits him to take them away for a temporary purpose, the distrainer intending that they shall be returned, which is done (o). Where a bailiff or broker, after having been ejected from a distress, re-enters to distrain, he should con- fine himself to the same goods (jo). After a lawful entry to distrain the broker may, if necessary, break open the outer door to get out and remove the distress (^). In making a distress for rent, circumstances may occur which may require the presence of a police officer. But to justify the landlord in calling him in, it must be shown that his presence was rendered necessary either from threats of resistance or the apprehension of violence (r). Practical directions. — The most proper manner of making a distress is for the person distraining, whether the landlord himself or his bailiff (accompanied by a man to be left in (/) Bannister v. Hyde, 2 E. & E. forcible, but the distrainer did not 627 ; 29 L. J., Q. B. 141 ; Eldridge v. return for three weeks. Stacey, 15 C. B., N. S. 458. (o) Kerby v. Harding:, (3 Exch. 234. (tk) Russell V. Rider, 6 C. & P. 416. (;)) Smith v. Farr, 3 F. & F. 505. (n) Eldridge v. Stacey, 15 C. B., (7) Pugh v. Griffith, 7 A. & E. 827. N. S. 458. Here the expulsion was (?•) Skidmore v. Booth, C. & P. 777. 725 *464 DISTRESS FOR RENT. [Ch. XI. S. 10. possession), to go into the house, or upon any part of the premises out of which the rent issues, and there select and seize articles, not privileged from distress (s), of sufficient value to raise, on a broker's sale, the amount for which the distress is made, and the expenses of the distress ; or, if necessary, to seize the whole, by taking hold of some piece of furniture or other article and saying, "• I distrain this in the name of all the goods on the premises " (t), or to that effect. There could be no harm in adding, "except those privileged from distress." There need not be an actual seiz- ure of the property distrained on (u)^ any expression of in- tention to distrain being sufficient (a:). Thus, where a land- lord to whom rent was in arrear, on hearing his tenant and a stranger disputing about removing a lathe, entered the house, and laying his hands on the machine, said, " I will not suffer this, or any of the things, to go off the premises till ni}' rent is paid," the distress was held to be sufficiently made (?/). Where a landlord's agent went upon the tenant's premises, walked round them without touching anything, and gave the usual notice of distress as to certain of the goods [*464] (of much * more than sufficient value), and then went away without leaving any one in possession, it was held that this was a sufficient seizure to enable the ten- ant to sue the landlord for an excessive distress (2). Where a broker went to the tenant's house and pressed for payhient of rent alleged to be due, and of a sum for the expense of the levy, but touched nothing and made no inventory, and the tenant then paid the rent and expenses under protest, on which the broker witlidrew: it was held, in an action against the landlord for an excessive distress, that he could not say there had been no actual distress (a). But a declaration by a landlord as against the grantee of a bill of sale that the landlord means not to allow goods to be removed until his (s) Ante, Sect. 8, p. 436. (y) Wood v. Nunn, 5 Bing. 10. (<) Dodd V. Morgan, Mod. 215; (z) Swann v. Earl of P'almoutb, 8 Draper .;. Thompson, 4 C. & V. 84; B. & C. 45G. Bullen, 131. (a) Hutchins v. Scott, 2 M. & W. (m) Smith L. & T. 224 (2nd ed.). 809. (x) Cramer v. Mott, L. R., 5 Q. B. 357; 30 L. J., Q. B. 172. 726 Cu. XI. S. 10.] PROCEEDINGS IN DISTRESS. *464 rent be paid, and that he is prepared to use force to prevent their removal, has been held not to be a conversion by the landlord (/>). Things privileged, not to be taken. — In making the seizure •care must be taken not to distrain on anything absolutely privileged from distress, ex. gr. tenants' fixtures (tf), nor anything privileged sub modo, i. e. provided there be other sufficient distress on the premises, ex. gr. the tools of a man's trade (e). Nor an excessive quantity. — Nor must the goods distrained be excessive in quantity or value, i. e. much beyond what is necessary to satisfy the actual arrears of rent, and the costs of the distress (c?). The value of the goods should be esti- mated at what they will probably produce at a broker's sale and not according to their value to the tenant (e). The broker's appraisement is not evidence against the tenant as to the value (.f ). The broker who made it should be called. If there be no other distress on the premises, the taking of one entire thing, though of considerably greater value than the rent, is not excessive (,9'). An action lies for an exces- sive distress of growing crops, the probable produce of which is capable of being estimated at the time of seizure (A) : pro- vided the tenant thereby sustains actual loss and damage, but not otherwise (^). The distress should not extend to the whole crop, where part would suffice. Amount to be distrained for. — The distress should not be (b) England v. Cowley, L. R., 8 Ex. ( /) Smitli v. Ashford, 29 L. J., Ex. 120; 42 L. J., Ex. 80; 28 L. T. 67, 259. diss. Martin, B. (.9) Avenell v. Croker, Moo. & M. (c) For a list of things privileged 172; Field v. Mitchell, 6 Esp. 71; absolutely and sub modo respectively, Sells v. Hoar, 1 Bing. 401 ; 1 C. & P. see ante, 4^S>. 28; explained 11 Exch. 876; Roden (d) 52 Hen. 3, c. 4 (Statutes of r. Eyton, 6 C. B. 427 ; Tancred v. Marlebridge) ; 2 Inst. 107, cited 6 C. Leyland (in error), 16 Q. B. 667, B. 480; Wells v. Moody, 7 C. & P. Maule, J. 59; Field v. Mitchell, 6 Esp. 71 ; Wil- (A) Piggott v. Birtles, 1 M. & W. loughby V. Backhouse, 2 B. & C. 821 Biggins V. Goode, 2 C. & J. 364 Knight V. Egerton, 7 Exch. 407 Whitworth v. Maden, 2 C. & K. 517 Smith V. Ashforth, 29 L. J., Ex. 259 (e) Wells V. Moody, 7 C. & P. 59 441. (i) Proudlove v. Twemlow, 1 Cr. & Mee. 326 ; Owen v. Leigh, 3 B. & A. 470 ; Rodgers v. Parker, 18 C. B. 112; but see Chandler v. Doulton, 3 H. & C. 553; 34 L. J., Ex. 89, where nomi- nal damages were held recoverable. 727 *465 DISTRESS FOR KENT. [Ch. XI. S. 10. luade for more rent than is really owing: but if there be any doubt or dispute on that point, and no tender has [*465] *been made by the tenant, the landlord may, with comparative safety, distrain for all that he claims, although in the result it appears to be more than is really in arrear and unpaid. No action can be maintained against him merely for distraining for too much rent^ unless it appear by the evidence that the goods seized and sold were excessive with reference to the amount of the actual arrears (/t) ; not even where it is alleged that the distress was made mali- ciously (^). The reason is, that the landlord is legally entitled to distraiii for something, although perhaps not for all that he claims ; and there is no duty on liis part to inform the tenant for what he distrains : on the contrary, it is the duty of the tenant, who is presumed to know what rent he owes, to tender at his peril a sufficient sum to satisfy the amount, with or without expenses as the case may require, and until he has done that he has no cause of complaint (w). Upon the same principle, when the amount of a simple contract debt is disputed, the debtor must, at liis peril, make a suffi- cient tender ; otherwise the creditor, although he claims too much, may recover what is really due to him, with costs. The broker should show the cause of his making the distress, if required to do so, but if not required, he may distrain gener- ally (w). The landlord or his agent or bailiff is not bound by any notice of distress given, but may show that more rent was due than is therein stated {o). The tenant must prove that his goods to an excessive amount or value were dis- trained, l)ut it is not necessary to show that they were sold or actually taken away ; the seizure as a distress is a suffi- (^•) Crowder v. Self, 2 Moo. & R. ror), 13 C. R. 285, 207; 22 L. J., C. 190; Tancrc'd v. Loyland (in error), P. 110. 10 Q. B. 009; Glynn v. Tliomas, 11 («,) Glynn t\ Thomas, 11 Exch. Excli. 870; 25 L. J., Kx. 125; French 873, Erie, .J. ; Tancred v. Leyland, 10 V. Phillips, 1 II. & N. 504; 20 L. J., Q. B. 009. Ex. 82 ; LormjT ,.. Warl)iirton, E., B. (n) Buller's case, 1 Leon. 50. & E. 507 ; 28 L. J., Q. B. .31 ; over- (o) Gwinnet r. I'iiillip.s, 3 T. R. ruling Taylor v. Ilenniker, 12 A. & R43 ; Crowther v. Ramshottom, 7 T. E. 488. R. or,8; Ganihrell r. Earl of Fal- (/) Stevenson r. Newnham (in er- mo>itli, 4 A. & E. 73; Trent v. Hunt, 9 Kxcli. 14. 728 Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *466 cient cause of action (jt?). And it will be no defence that after the excessive distress was made the tenant authorized the defendant to sell, and gave him other powers with regard to the goods seized (^q). Impounding. — As soon as possible after the goods have been distrained they should be impounded (r) ; especially where there is any dispute between the parties as to the amount of arrears really due. Until such impounding the tenant may tender what he admits to be due, with expenses, and if such tender be sufficient it will be illegal to proceed further with the distress (s). But when the goods are impounded * they are in the custody of the law, [*466] and a tender is too late to make the subsequent pro- ceedings illegal (f). Nevertheless, if a tender be made after the impounding, but within the five days allowed the tenant to replevy, and the landlord afterwards proceeds to sell the distress, the tenant may maintain a special action on the case, founded on the equity of the statute 2 W, & M. sess. 1, c. 5, s. 2 (u). To avoid this the landlord should abstain from selling (after such a tender), and leave the tenant to obtain his goods by a replevin (which is the only remedy), in which the tenant will have to pay all that is really due, with the costs of and incident to the distress, replevy and action. If no tender be made, the landlord should not sell for more than the actual arrears of rent, with expenses, notwithstanding he may have claimed more in his notice of distress. He now has the opportunity of correcting any mistake previously made on that point, although perhaps he may be liable to some damages for having taken an excessive quantity of goods as a distress. {p) Sells V. Hoare, 1 Bing. 401; 8 (0 Six Carpenters' case, 8 Co. R. Moo. 453; Baylis v. Usher, 4 M. & 146 a; 1 Smith, L. C. iBo (7th ed.) ; P. 790. Firth v. Purvis, 5 T. R. 4.']2 ; Thomas (9) Willoughby f. Backhouse, 2 B. v. Harries, 1 M. & G. 695; Ladd r. &C. 821; Sells r. Hoar, s«pra. Thomas, 12 A. & E. 117; Ellis r. (r) Post, US. Taylor, 8 M. & W. 415; Teiinaiit (s) Vertue v. Beasley, 1 Moo. & R. v. Field, 8 E. & B. 336; BuUen & L. 21 ; Branscomb r. Bridges, 1 B. & C. PI. 318 (3rd ed.). 145; Holland v. Bird, 10 Bing. 15; («) Johnson v. Upham, 2 E. & E. Ladd V. Thomas, 12 A. & E. 117; 250; 28 L. J., Q. B. 252; overruling Evans v. Elliott, 5 A. & E. 142. Ellis i'. Taylor, 8 M. & W. 415. 729 *467 DISTRESS FOR RENT. [Ch. XI. S. 10. Inventory. — After a seizure has been made, as above pointed out, it is proper for the landlord or his bailiff to make an inventory (a;) of as many goods as are judged sufficient to cover the rent distrained for, and also the charges of the distress. Although an inventory need not be as exact and minute as a specification, yet it ought to mention the goods taken, in such a manner that the tenant, and others, may know what is intended to be distrained. The following inventory, '" one clock and weights, &c., and any other goods and effects that maybe found in and about the said premises, to pay the said rent and expenses of this distress," was con- sidered by the court objectionable, and was held sufficient only on the ground that the distress was in fact meant to include all the goods on the premises Qy'). A notice of dis- tress stating that the landlord had distrained the several goods, chattels and effects specified in the schedule : which schedule, after enumerating certain goods, concluded thus : — "and all other goods, chattels and effects on the said premises, that mai/ he required in order to satisfy the above rent, together with all necessary expenses : " was held to be too vague and uncertain to justify the sale of goods of a stranger which he had deposited on the premises (z). Notice of distress, &o. — After the inventory is taken it is necessary to give a notice^ m writing (a) to the ten- [*4G7] ant of the fact of the distress having been made * and (t) See Form, Appendix D., No. 3. (a) Wilson v. Nightingale, 8 Q. B. {})) Wakeman v. Lindsey, 14 Q. B. 1034, jiost, 477 ; see the Form, Ap- 625. pendi.x D., No. 4. (s) Kerby v. Harding, Exch. 234; 20 L. J., Ex. 162. ' Notice of distress. — Notice given to tenant will bin);^ (/) Gray v. Stait, L. R., 11 Q. B. D. T. 88, wliere it was ruled by Pattcson, 6(58 ; 52 L. .7., Q. B. 412 ; 49 L. T. 288 ; J. (Parry v. Duncan bciufr cited), that 31 W. R. (i(i2 — C. A. the landlord need not prove that a (wj) Oppcrman !•. Smith, 4 D. & R. sufficient distress was not left on the 33 ; Bach v. Meats, 5 M. & S. 200. premises. (n) Tarry v. Duncan, 7 Binf,^ 243 ; (o) John v. Jenkins, 1 C. & M. 227 ; Inkop «;. Morchurch, 2 F. & F. 501. Tnknp v. Morchurch, 2 F. & F. 501. But 888 Gilham v. Arkwright, 16 L. (/») Thornton r. Adams, 5 M. & S. 1 See ante, sec. 8, note, " Goods of strangers." It matters not with what intention they were removed, they cannot he followed. 784 Ch. XI. S. 10.] PROCEEDINGS LN DISTRESS. • *470 but the trustees of a bankrupt lessee are considered as the actual tenants (^q). It is not necessary that the party upon whose land the goods are seized after removal there should himself be party or privy to the fraud (r). Presence of constable. — The presence of a constable is required and must be stated in the defence where doors or gates are broken open (s). The presence of a special con- stable appointed for the occasion is sufficient (t). Metropolitan Police District. — In the Metropolitan Police District, by virtue of 2 & 3 Vict. c. 47, s. 67, any constable is empowered to stop and detain, until due inquiry can be made, all carts and carriages which he shall find * employed in removing the furniture of any house [*470] or lodging between the hours of eight in the evening and six in the following morning, or whenever the constable shall have good grounds for believing that such removal is made for the purpose of evading the payment of rent. It is also provided, by further sections of the same statute, that both the tenant fraudulently removing goods, and also all persons assisting him, shall forfeit to the landlord double the value of the goods distrained, to be recovered before justices if the goods be worth less than 50?., or by an action of debt if they be worth more. Forfeiture of double value. — By 11 Geo. 2, c. 19, S. 3, "to deter tenants from such fraudulently conveying away their goods and chattels, and others from wilfully aiding or assistiyig therein or concealing the same,^^ it is enacted, "that if any ten- ant or lessee shall fraudulently remove and convey away his or her goods or chattels as aforesaid, or if any person or per- sons shall wilfullfi and knowingly aid or assist any such tenant or lessee in such fraudulent conveying away or carrying off of any part of his or her goods or chattels, or in concealing the same, all and every person or persons so offending shall for- feit and pay to the landlord or landlords, lessor or lessors, 38; Postman v. Harrell, C. & P. (r) Williams v. Roberts, 7 Exch. 225; Fletcher v. Marillier, 9 A. & E. 618. 457 ; Foulger v. Taylor, 5 H. & N. (s) Rich v. Woolley, 7 Bing. 651. 202. (t) Cartwright u. Smith, 1 Moo. & (q) Welch v. Myers, 4 Camp, 368. R. 284. 735 *471 . DISTRESS FOR RENT. [Ch. XI. S. 10. from whose estates such goods and chattels were fraudu- lently carried off as aforesaid, double the value of the goods by him, her or them respectively carried off or concealed as aforesaid, to be recovered by action of debt." "Where goods worth less than 50?. — Sect. 4 provides, " that where the goods and chattels so fraudulently carried off or concealed shall not exceed the value of 50Z., it shall and may be lawful for the landlord or landlords, from whose estates such goods or chattels were removed, his, her or their bailiff, servant or agent, in his, her or their behalf, to exhibit a com- plaint in writing against such offender or offenders, before two or more justices of the peace of the same county, riding or division of such county, residing near the place whence such goods and chattels were removed, or near the place where the same were found, not being interested in the lands or tenements whence such goods were removed ; who may summon the parties concerned, examine the fact and all proper witnesses upon oath, or if any such witness be one of the people called Quakers, upon affirmation required by law ; and in a summary way determine whether such person or persons be guilty of the offence with which he or they are charged ; and to inquire in like manner of the value of the goods and chattels by him, her or them respectively so fraud- ulently carried off or concealed as aforesaid : and upon full proof of the offence, by order, under their hands and seals, the said justices may and shall adjudge the offender or offenders to pay double the value of the said goods and chattels to such landlord or landlords, his, her or their bailiff, servant or agent, at such time as such justices shall appoint; and, in case the offender or offenders, having notice of such [*471] order, shall refuse or * neglect so to do, may and shall, by warrant under their hands and seals, levy the same by distress and sale of the goods and chattels of the offender or offenders ; and for want of such distress may commit the offender or offenders to the house of correction, there to be kept to hard labour, without hail or mainprize, for the space of six months, unless the money so ordered to be paid af( aforesaid shall be woncr satisfied T Appeal to quarter sessions. — The words printed in italics 736 Ch. XI. S. 10.] PEOCEEDINGS IN DISTRESS. *471 are repealed by the Summary Jurisdiction Act, 1884 (47 & 48 Vict. c. 43). Sections o and 6 provide, " that it shall be lawful for any person, who thinks himself aggrieved by such order of the said two justices, to appeal to the next general or quarter sessions for the same county, who may and shall hear and determine such appeal, and give such costs to either party as they shall think reasonable, whose determination therein shall be final ; " and that " where the party appeal- ingf shall enter into a recognizance with one or two sufficient surety or sureties in double the sum so ordered to be paid, with condition to appear at such general or quarter sessions, the order of the said two justices shall not be executed against him in the meantime." Decisions on statute providing for recovery of double value. — The third section of the above act is so far penal, that it is incumbent, in an action by the landlord against a third party, for assisting the tenant in such fraudulent removal, to bring the case by strict proof within the words of the first section (^ii) ; and the landlord must not only prove that the defendant assisted the tenant in such fraudulent removal, but also that he was privy to the fraudulent intent of the tenant (a;). But a creditor, with the assent of his debtor, may take possession of the goods of the latter, and remove, them from the premises for the purpose of satisfying a bon^ fide debt, without incurring the penalty inflicted by the third section, although the creditor takes possession knowing the debtor to be in distressed circumstances, and under an appre- hension that the landlord will distrain (3/). In an action on that section against the tenant for fraudulently removing his goods from off the premises to avoid a distress for rent, it is not necessary to show an actual participation in the act, if the removal was with his privity (s) ; and in such a case it seems that it is immaterial whether the removal took place by night or with any particular concealment. In an action upon the statute against a defendant for aiding and assisting (u) Ante, 467. (y) Bach v. Meats, 5 M. & S. 200. (x) Brooke v. Noakes, 8 B. & C. (s) Lister v. Brown, 1 C. & P. 121; o37,; Reg. v. JJ. of Radnor, 9 Dowl. 3 D. & R. 601. 90. 737 *472 DISTRESS FOE KENT. [Ch. XI. S. 10. a tenant in removing and concealing his cattle, to hinder the landlord from distraining, the acts and orders of the tenant are admissible evidence of his own fraud, and of knowledge on the part of the defendant, if by other evidence he is proved to have contributed to the facility of it. Circum- stances of suspicion may be laid before the jury to [*472] prove such a fraudulent co-operation as the * legis- lature contemplated, and it is not necessary, to sup- port such an action, that it should be proved that a distress was in progress, or about to be put in execution, or even contemplated ; it is enough if the rent be shown to be in arrear, and that the goods have been removed afterwards (a). A variance in stating the amount of rent in arrear was held immaterial even before the Judicature Act (6). Decisions on sect. 4. — The fourth section, wliich gives a summary remedy before two magistrates, provided the value of the goods shall not exceed 50?., does not take away the jurisdiction of the High Court in cases where the goods are of less than that value (c). And the fact that the landlord in the first instance made his complaint before a magistrate will not preclude him from afterwards maintaining an action ; for the remedy given by that section is cumulative, and therefore the landlord may elect at his option which course may be most convenient to himself ((7). Justices may deter- mine whether the goods have been fraudulently removed, even in cases where there are conflicting claims to the premi- ses (e). Justices, either of the county from which tenants fraudulently remove goods, or of that in which they are con- cealed, may convict the offenders in their own counties (/). The goods need not be enumerated or specified in the order of the justices ; it is sufficient if they find the value (//). The adjudication of the justices is an order and not a convic- (a) Stanlpy v. Wliarton, 9 Price, Price, 301; 10 Id. 138; Bromley v. 301 ; 10 Id. i:'.8 ; Woodgate r. Knatch- Iluldor, 1 Moo. & M. 175. bull, 2 T. K. 154. ((/) Stanley v. Wharton, Price, (6) Gwinnet t: Phillips. 3 T. 11. 043. 301 ; 10 Id. 138. (c) Ilorsfall V. Davy, Holt, 147; 1 (e) Coster r. Wilson, 3 M. & W. 411. Stark. 11. 16i>; Basten v. Carew, 3 B. (/) Rex i'. Morgan, Cald. 157. & C. 640; Stanley v. Wliarton, ('/) l^^x r. Rabl)itts,0 I). & H. 343; Burn's Justice, tit. Distress. 788 Cii. XI. S. 10.] PROCEEDINGS IN DISTRESS. *473 tion, and cannot therefore, like a conviction, be returned to the sessions in an amended form (li). It must show on the face of it that the party removing the goods was tenant ; and that is not sufficiently shown by stating, that on com- plaint duly made, the party was charged with having fraudu- lently removed his goods from certain premises to prevent A. B. from distraining them for arrears of rent due to him for the said premises, and that, it appearing that he did so remove, &c., he is convicted thereof. It would seem, also, that the order should state that the complainant was the party's landlord, or the bailiff, servant or agent of such land- lord (^). An order of justices convicting a person aiding and abetting a fraudulent removal of goods to avoid a dis- tress, must show that the defendant acted wilfully and knowingly (A-). An order, which states that the witnesses were examined upon oath, is not bad because it omits to state that they were examined on oath as to the value * of the goods removed ; nor is the warrant on such [*473] an order invalid for omitting to state that the wit- nesses were examined upon oath (?). Decision on sect. 5 as to appeal. — It has been held that the appeal under section 5 is subject to the conditions of the Summary Jurisdiction Act, 1879 (42 & 43 Vict.), c. 49, ss. 31 and 32, and that therefore notice of appeal must be given within seven days after the decision appealed against (w). (f) Hoiv Distress impounded. Of impounding at common law. — At common law, where a distress was made, the cattle or goods were to be kept in a pound; which is nothing more than a prison for that purpose, and is either overt, that is, public and open over- head, or covert, that is, private and covered or protected from (Ji) Reg. V. JJ. of Cheshire, 5 B. & (/) Coster v. Wilson, 3 M. & W. 411. Adol. 4;>9 ; Rex r. Bissex, Saj^er, ;304; (w) Reg. •;;. Justices of Shropshire, 3 Burn's Justice, 1109 (30th eel.). L. R., 6 Q. B. D. 609 ; 50 L. J., M. C. (/) Kex r. Davis, 5 B. & Adol. 551. 72 ; 29 W. R. 567. (A) Reg. V. JJ. of Radnorshire, 9 Dowl. 90. 739 *474 DISTRESS FOR RENT. [Cn. XI. S. 10. the rain, &c. (n). Household goods and other things liable to damage from the weather, or which may be easily carried away, should be put in a pound covert (o). But all animals distrained should regularly be put into a pound overt, because at common law the owner was at his peril to sustain them, wherefore they ought to be put into such open place as he could resort to for the purpose : and if they were placed in a private pound, the distrainer was bound to supply them at his peril with provision, for which he had no satisfaction, and if they died for want of sustenance, he was considered answerable for them (p). Persons impounding animals to provide food and -water. — By 12 & 13 Vict. c. 92, s. 5, " every person who shall impound or confine, or cause to be impounded or confined, in any pound or receptacle of the like nature, any animal, shall provide and supply, during such confinement, a sufiicient quantity of fit and wholesome food and water to such ani- mal ; and every such person who shall refuse or neglect to provide and supply such animal with such food and water as aforesaid shall for every such offence forfeit and pay a penalty of twenty shillings." The penalty imposed by this section falls not upon the keeper of the pound, but upon the distrainer (^). Power to any one to supply food and -water. — By sect. 6, " in case any animal shall at any time be impounded or con- fined as aforesaid, and shall continue confined without fit and sufficient food and water for more than twelve successive hours, it shall and may be lawful to and for any person whomsoever, from time to time, and as often as shall be necessary, to enter into and upon any pound or other receptacle of the like nature in which any such [*474] animal * shall be so confined, and to supply such animal with fit and sufiicient food and water during so lonsf a time as such animal shall remain and continue (n) Co. Lit. 47 h; HBlac. Com. l.T; (p). 1 I.ist. 4; Co. Lit. 47 b; 15ul- l',!ilU-n, 142; Smith L. & T. 2:V.] (2i)(l len, M:'.. cil.;, (: Whitsed, 116". 2 E. & E. 804 ; 29 L. J., Q. B. 164. (g) Lucas v. Tarleton, supra ; Rodg- {d) Walter v. Rumball, 1 Ld. ers v. Parker, 18 C. B. 112. Raym. 53 ; 1 Salk. 247. (/)) Griffin r. Scott, 2 Stra. 716 ; 2 Ld. Raym. 1424. 747 *480 DISTRESS FOR RENT. [Cii. XI. S. 10. days, during tlie last four of which he was removing the goods, which were afterwards sold under the distress ; it was held, that he was liable to an action of trespass for continu- ing on the premises, and disturbing the plaintiff in the occu- pation of his house, after the time allowed by law (/) ; but a reasonable time after the expiration of the five days from the time of the distress is allowed by law to the landlord to remain on the premises for appraising and selling the goods distrained (/:). It is usual for the tenant to give a conseiit for the landlord to remain beyond the five days, as it is for the tenant's advantage that the goods be not sold, or, at all events, not sacrificed by hurrying on the sale ; if such con- sent be given, it is prudent, although not absolutely neces- sary, to have it in writing (Z). If a landlord has distrained for rent, but by an arrangement between him and the tenant does not sell immediately after the five days, that is no proof per se of collusion (w) ; and the request of the tenant will justify the landlord in detaining the goods of a lodger upon the premises beyond the proper time of selling, if he did not know which were the goods of the lodger, and which were those of the tenant (w). Standing corn and growing crops, seized as a distress for rent, cannot be sold before they are ripe, for the tenant may tender the rent before they are ripe (o). But no action can be maintained for selling them prematurely, if the jury find that the tenant thereby sus- tained no damage (p). Hi) Appraisement and Sale. Who may act as appraisers. — Before the distress [*480] can be sold, it must, unless the Agricultural * Hold- ings Act a[)plies (^), be appraised by two appraisers (r), who must be reasonably competent, but need not be profes- (/) Winterbourne v. Morgan, 11 Proudlove v. Twemlow, 1 Cr. & M. East, P>'.)5; 2 Camp. 117, n. ; Ether- ;}2G. ton V. Popplewell, 1 East, l.']0. (/>) Lucas v. Tarloton, ;'. H. & N. (/.) Pitt V. Rliew, 4 B. & A. 208. 116 ; Rndgers v. Parker, 18 C. li. 112. (/) See Form, Appendix D., No. 7. (7) See Sect. 5, ante. (m) Harrison r. Barry, 7 I'ricp, (iOO. (r) 2 W. & M. sess. 1, c. 5, s. 2; (h) Fisher v. Alijar, 2 C. & V. .".74. nnir, 477; Allen v. Flicker, 10 A. & (0) Owen V. Leigh, 3 13. & A. 470; E. ) Nott V. Bound. L. U., I Q. B. 406. 752 Cn. XI. S. 10.] PROCEEDINGS IN DISTRESS. *483 warrant to levy the same by distress and sale of the goods and chattels of the party ordered to pay, rendering the over- plus (if any) to the owner ; and in case no sufficient distress can be had, he shall commit the party to prison, there to remain until such order or judgment be satisfied." Landlord liable only in case of personal levy. — Sect. 4 pro- vides, that nothing contained in the act ''shall empower such justice to make any order or judgment against the landlord for whose benefit any such distress shall have been made, unless such landlord shall have personally levied such dis- tress; and that no person who shall be aggrieved shall be debarred from any legal or other suit or remedy which he might have had before the passing of the act, excepting so far as such complaint shall have been determined by the order and judgment of the justice, and which may be given in evidence under the plea of the general issue in all cases where the matter of such complaint shall be made the sub- ject of any action." Schedule of expenses for distresses not exceeding 20/. — The schedule of expenses referred to in the above act is as follows : — £ s. d. 3 2 6 Levying distress ..... Man in possession, per day 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 advertisements, if any such 10 Catalogues, sale and commission, and de- livery of goods. Is. in the pound on the net produce of the sale. The statute does not apply to a case of distress taken for more than 20/., though made upon goods which are appraised at and sold for less than 20/. ((/). Copy of broker's charges to be delivered, &c. — By sect. 6 of (q) Child I'. Chamberlain, 5 B. & A. 1049 ; 6 C. & P. 213. 753 *484 DISTRESS FOR RENT. [Ch. XI. S. 10. the same statute " every broker or other person who shall make and levy any distress whatsoever, shall 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, althouo^h the amount of the rent demanded shall exceed the sum of twenty pounds." This section, which, it will have been seen, is of general application, does not apply where the goods have not been sold (r), and where it does apply, the landlord, not personally interfering in the distress, is not liable for the omission of the broker to give a copy of his charges (s). [*484] * Costs of distresses for more than 20/. — Where the sum distrained for exceeds 20?., the above act does not apply, and unless the Agricultural Holdings Act applies, the only rule is that the charges must be reasonable (0- It is to be regretted that some reasonable scale of charges in such cases has not been sanctioned by the legislature, to prevent extortion, and because tenants ought to know accu- rately how much to tender (with the arrears of rent) for the expenses of the distress. The general practice appears to be, to charge Is. in the pound for the levy, and 2s. 6d. per day for the man in possession, if the tenant keep him, and 38. 6d. per day if he keep himself (?t), besides the usual charges for appraisement, advertisements, catalogues, &c. The 1 & 2 Ph. & M. c. 12, s. 2 (.r), allowing only 4rf. for impounding any one whole distress, does not extend to cases where the goods are impounded on the premises, pursuant to 11 Geo. 2, c. 19, s. 10. A bailiff has no right to go on with the distress, and sell for his expenses, after his author- ity has been withdrawn by the landlord (?/). Costs of distresses for more than 20/. on agricultural holding. (r) Hills V. Street, 5 Bing. 30. mandetl and due for such rates or (s) Hart V. Leach, 1 M. & W. GOO. taxes, &c., does not exceed 20/. By 7 & 8 Geo, 4, c. 17, all the (/) Lyon »-. Tomkies, 1 M. & W. clauses, &c., in the above act (T)? 003. Geo. 3, c. 93) contained are extended (h) Bullen, 104, 105. to any distress for any rates or taxes, (.r) Ante, 441. &c., in all cases where the sum de- (i/) ilardinfjc i?- Hall, 14 W. R. 640 ; 14 L. T., N. S. 410. 754 Ch. XI. S. 10.] PROCEEDINGS IN DISTRESS. *485 — If the Agricultural Holdings Act apjDlies (2), a special scale is provided by s. 49 and sched. 2 of that act, which scale may not be exceeded, but is applicable only to dis- tresses for more than 20^., distresses for less than 20?. being still left to be regulated by 57 Geo. 3, c. 93. The scale is as follows : — Levying distress. — Three per centum on any sum ex- ceeding 20L and not exceeding 50Z. Two and a half per centum on any sum exceeding 501. To bailiff for levy, 11. Is. To man in possession, if boarded, Ss. 6d. per day ; if not boarded, 5s. per day. For advertisements, the sum actually paid. To auctioneer. — For sale, five pounds per centum on the sum realized not exceeding 10.01., and four per centum on any additional sum ]-ealized not exceeding 100/., and on any sum exceeding 200?. three per centum. A fraction of 1?. to be in all cases considered IZ. Reasonable costs and charges where distress is withdrawn, or where no sale takes place, and for negotiations between landlord and tenant respecting the distress ; such costs and charges, in case the parties differ, to be taxed by the regis- trar of the county court of the district in which the distress is made («). Negotiations. — At common law the landlord has no right to charge the tenant with the costs of any such " negotia- tions respecting distress," but these words in the schedule seem impliedly to confer such a right. * (j) Surplus Proceeds and Unsold G-oods. [*485] Overplus to be paid to tenant. — By 2 W. & M. sess. 1, C. 5, s. 2, landlords are authorized, after giving five days' notice of the distress (?*), to cause the goods and chattels distrained to be appraised and sold (c), '' towards satisfaction of the (z) See sect. 5, ante. Committee of the House of Commons (a) This scale is almost identical on the law of distress, which made with that proposed by IMr. Waugh, its report in 1882. M. P. for Cockermouth, a solicitor of (/)) Ante, 477 (f). forty years' experience, to the Select (c) Ante, 479 (g). 755 *485 DISTRESS FOR RENT. [Ch. XI. S. 11. rent for which the said goods and chattels shall be dis- trained, and of the charges of such distress, appraisement and sale, leaving the overplus (if any^ in the hands of the said sheriff, under-sheriff or constable, for the owner's use." If the overplus be not so left, and the tenant or owner of the goods thereby sustains actual damage (but not otherwise), a special action on the case is maintainable () Kvans v. Wriglit, 2 U. & N. 627; 27 L. .1., Kx. 50. 766 Cu. XI. S. 11.] SECOND DISTRESS. *486 distrained shall not be found to be of the full value of the arrears distrained for, the party to whom such arrears are due, his executors or administrators, may from time to time distrain again for the residue of the said arrears." This enactment, which appears intended to provide for the cases where a tenant after an insufficient distress *has subsequently brought fresh goods upon the [*486] premises, is wholly repealed by the Statute Law Re- vision and Civil Procedure Act, 1881, 44 & 45 Vict. c. 59, but the object of that act was to expressly repeal enactments impliedly repealed already, and 17 Car. 2, c. 7, s. 4, does not appear to have been impliedly repealed. Perhaps, too, the enactment is saved from repeal by s. 4 (b) of the Act of 1881, which provides that the general repeal shall not affect any right or privilege acquired by any enactment repealed by the Act of 1881. ' Illegality of second distress for same rent in case of suffi- ciency on first. — However this may be, a second distress for the same rent cannot be justified where there is enough which might have been taken upon the first distress, if the (hstrainer had then thought proper ; for it was his folly that he did not take sufficient at first (Z) ; and a man who has an entire duty (as rent, for example) may not split the entire sum, and distrain for one part of it at one time, and for the other part of it at another time, and so toties quoties for several times ; for that is great oppression (m). It is not illegal, however, in cases where many gales of rent are due, to distrain firstly for gales firstly due, and secondly for gales subsequently due, although the distress firstly made was made at a date when the gales secondly distrained for might , have been distrained for by the first distress. That a second distress to be illegal must be for the same rent is recognized by all the authorities (w). (/) Com. Dig. Distress (A. 1) ; (n) And see per Brown, J., Moore, Bagge, app. Mawby, resp., 8 Exch. 7, pi. 26, cited in Dawson v. Cropp, 1 641 ;'Smith L. & T. 191, 192 (2nd ed.). C. B. 961. The appropriation of the (m) Gambrell v. Earl of Falmouth, first distress to the first rent will ap- 4 A. & E. 73; Lear v. Caldecott, 4 Q. pear from the distress warrant and B. 123; Owen ;•. Wynne, 4 E. & B. notice of distress. 679; Smith L. & T. 192 (2nd ed.). 757 *487 DISTRESS FOR RENT. [Ch. XI. S. 11. An action will lie against a landlord for the goods taken on a second distress, where he might have taken sufficient on the first, or where he has voluntarily abandoned it (o). Where a landlord, having distrained a tenant who had com- mitted an act of bankruptcy, withdi-ew the distress in conse- quence of a creditor of the tenant stating that he was pro- ceeding in bankruptcy against the tenant, and warning the landlord not to sell, it was held, that such notice or warning ought not to have been regarded, and that a second distress was illegal (p). If a man, however, seize for the whole sum that is due to him, and only mistake the value of the goods seized, which may be of uncertain or imaginary value, as pictures, jewels, race-horses, &c., there is no reason why he should not afterwards complete his execution by making a further seizure (5'). So if he withdraw the distress at the request of the tenant and for his accommodation (?•), or is induced to do so by a false statement made by the [*487] tenant (s). So if he be forcibly prevented * by the tenant from selling the goods distrained, or from delivering them to the purchaser, whereby the distress is defeated (^). But the re-entry in such cases does not amount to a second distress ; it is merely a continuance of the original taking, and it should be confined to the goods previously taken and not extend to any others (it). Second distress in case of replevin. — If a plaintiff in re- plevin be nonsuited, the defendant may again distrain the same goods for rent subsequently accrued, previously to execut- ing his retorno habendo, without waiving his action against the sureties on the bond (a:). Where to a cognizance for rent in arrear there was a plea in bar, that the defendant, on a former occasion, made a distress for the same rent, and took (0) Smith V. Goodwin, 4 \i. & Adol. {r) Sec Koriii of Kfcjiiost, Appen- 413; Dawson v. Cropp, 1 ('. H. OHl ; . & L. 225; Lear v. Caldecott, 4 (.s) Woollaston.app., Stafford, rcsp., Q. B. 12.']; ripfroit r. Birtlos, 1 M. & 15 C. B. 278. W. 441. (0 Lee v. Cooke, 2 H. & N. 584; 3 (})) Baggc, app., Miiwhy, rcsp., 8 Id. 203 ; 27 L. J., Ex. 337. Excli. fi41. (h) Smitii v. Torr, 3 F. & V. 505; (7) llutcliins r. Cliainbcrs, 1 Burr. and .'^co Si'(!t. 4. 679; 1 Wnis. Saund. 201, n. 1. (.1) lU-ITord r. Alger, 1 Taunt. 218. 768 Ch. XI. S. 12.] KESCUE AND POUND-BREACH. *488 goods liable to distress sufficient to discharge the rent in arrear and the costs of the distress, and might thereby have paid the arrears of rent, but neglected so to do and wrong- fully made a second distress for the same rent ; it was held ill on special demurrer, assigning for cause that the plea did not show that the rent was satisfied by the former distress (//). And where to an avowry ])y executors, for rent due in the lifetime of their testator, there was a plea in bar that the testator took as a distress for the same rent goods of a suffi- cient value to satisfy such rent and the costs of taking the distress ; it was held insufficient, as it should have shown that such distress produced a satisfaction of the rent (z). Sect. 12. — Rescue mid Pound-Breach. What amounts to a rescue. — Rescue is where the owner, or other person, by force takes away a thing distrained from the person distraining, after the latter has been actually in possession ; but if he never in fact had possession — as when disturbed in making the distress — it is no rescue (a). It is also called rescous, from recourser (recuperate^, to take from or recover. It is deffiied by Lord Coke to be a taking away and setting at liberty against law a distress taken, or a per- son arrested by the process or course of law (?>). If cattle distrained go on to the premises of the owner while being driven to the pound, and he refuse to deliver them up upon demand by the distrainer, it is a rescue in law (c) : but where the plaintiff distrained the defendant's cattle damage feasant, and went to apprise the defendant, and during his absence the cattle escaped for half an hour into the defendant's grounds, from whence the plaintiff on his return drove them to his own yard ; it was held, that the * defendant [*488] having taken them from thence, it was no rescue (f?). Where the landlord employed a sheriff's officer, who took (y) Hudd V. Ravenor, 2 Brod. & B. («) BuUen N. P. 84. 662^; Dawson v. Cropp, 1 C. B. 9G1 ; (6) Co. Lit. 160. ." T>. & L. 225. (c) Co. Lit. 161 a. (z) Linsliani r. Warren, 2 Brod. & (d) Knowles r. Blake, 5 Bing. 499. B. 36; Biillen, 206. 759 *488 DISTRESS FOR RENT. [Ch. XI. S. 12. possession under the tlistress, and then, on receiving a fi. fa., sold the goods under it, this, though done by the same per- son, was held to be a rescue and pound-breach (e). The folio winof facts, however, were held insufficient to enable the plaintiff to maintain an action for a pound-breach or rescue. The plaintiff levied a distress for rent in arrear, and im- pounded the goods upon the premises ; the superior landlord afterwards distrained for rent due to him from the plaintiff : whilst the plaintiff's •bailiff was removing the goods, the defendant, a sheriff's officer, came into the house, and said that he had a ti. fa. against the plaintiff, and that he would not allow the goods to be removed : plaintiff's tenant there- upon ejected plaintiff's bailiff, and brought back the goods which had been removed (/). When a rescue may be made. — If a distress be taken with- out cause, the part}- may lawfully make a rescue before it is impounded ( ^) ; but if it is impounded, he cannot justify a breach of the pound to take it out ; because the distress is then in the custody of the law(/0. Whenever the distrainer abandons and quits possession of the distress, the re-taking of it by the tenant or owner is not a i-escue (0- So if a distrainer takes the distress out of the place where it was originally impounded, for the purpose of making an unlaw- ful use of it, the owner may interfere and take it out of his j)Ossession, without rendering himself liable either for a rescue or for pound-breach (7c). Remedies for rescue and pound-breach. — By the common liiw, if a man broke the pound, or the lock of it, or any part of it, he " greatly offended against the peace, and committed a trespass against the king, and to the lord of the fee, the sheriffs and hundredors in breach of tlie peace, and to the party in delay of justice : wherefore hue and cry was levied if.) Iteddc'll V. Stowey, 2 Moo. & K. '.» Co. It. 2:3 b ; Keen v. Priest, 4 II. & 358; Turner v. Ford, 15 M. & W. N. 240, Bramwell, B.; Bullen, 207. 212. (A) Cotswortli V. Hettison, 1 Salk. (/) Story V. Finnis, Exch. 123; 247; 1 Ld. Uaym. 105. 2 L., M. & P. 19». (0 Dod r. Monger, (5 Mod. 210; ((/) Co. Lit. 47 h; 101 a; Bevil'.s Bradley, 282. case, 4 Co. K. Ill); Case of Avowry, {k) Smith v. Wriglit, II. & N. 821 ; 30 L. .]., Ex. 313. 760 Ch. XI. S. 12.] RESCUE AND POUND-BREACH. *489 against him as against those who broke the peace ; and the party who distrained might take the goods again wliere- soever he found them, and again impound them " (^). Recovery of treble damages. — By 2 W. & M. sess. 1, C. 5, s. 4, on any pound-breach or rescous of goods distrained for rent, the person grieved thereby shall, in a special action upon the case, recover treble damages and costs against the offender, or against the owner of the goods, if they be afterwards found to come into his use or possession. If a distrainer abuse a distress by working it, the owner may inter- fere and prevent it, and no * action is maintainable [*489] against him for pound-breach or rescue («t). Where goods fraudulently removed and distrained on the premises of a third party are rescued by liim, it may be a question whether an action in respect of such rescue can be main- tained under this section (/i). In an action on this statute it has been held that it is no answer that the rent and demand were tendered after the distress and impounding (o). Trover is not maintainable by the landlord for goods dis- trained by him, he having no property in them, nor even the constructive possession of them (jt>). Costs. — Treble costs as well as treble damages are given by this statute, but treble costs were abolished by Pollock's Act (6 & 7 Vict. c. 97), which substituted '*a full and rea- sonable indemnity as to all costs and charges in and about the action" (g). The act 6 & 7 Vict. c. 30, amending the " Law relating to Pound-Breach and Rescue in certain Cases," does not extend to distress for rent, but applies only to distress of cattle " damage feasant." Note on Distress Damage Feasant. — Although tlie right of distress damage feasant does not arise out of the relation between landlord and ten- ant, it may be useful to add here a few words respecting tliat kind of distress, (/) 1 Inst. 47. 212; Wilbraham v. Snow, 2 Saund. (rft) Smitli r. Wright, supra. 47 a. (n) Harris r. Thirkeld, 20 L. T. 98. (q) It is doubtful whether Pol- (o) Firth V. Purvis, 5 T. R. 432. lock's Act is not repealed by R. S. C. Ip) Turner' r. Ford, 15 M. & W. Order LXV. See Garnett y. Bradley, L. R., 3 App. Ca. at pp. 901, 970. 761 *490 DISTRESS FOR RENT. [Cii. XI. S. 12. which resembles distress for rent in many of its incidents, but not in all. It is laid down in BuUen on Distress (where the law of the subject is fully dis- cussed (see pp. 227-242)), that a distress damage feasant may be made of any cattle or other things animate or inanimate which are wrongfully upon a man's land or in his house, incumbering it or otherwise doing damage. This right is founded on the principle of recompense, which justifies a person in retain- ing that which occasions injury to his property till amends be made by the owner. The thing distrained must be taken in the act (Wormer r. Biggs, 2 C. & K. 31). There is this difference between a distress for rent and a dis- tress damage feasant, that in the former case a man may distrain any cattle he finds on the premises, but in the other case they must be actually doing damage, and are only distrainable for the damage they are then doing and continuing : for if they have done damage to-day and have gone otf , and come again at another time and are doing damage, and are taken for that, and the owner tenders amends for the latter damage, the party cannot justify keeping them for the first damage (Vaspor i\ Edwards, 12 Mod. 658, 060; 1 Ld. Raym. 719; 1 Salk. 248; Co. Lit. 161 a). Each beast taken can be seized and detained for the damage which has actually been done by itself onl\', and not for the general damage, or any part of it which has been done by the others (Id.). To justify a distress damage feasant it is sufficient, however, that the distrainer entered the locus in quo whilst the cattle were in it (Clement i;. Milner, 3 Esp. 95) ; but if it appear tiiat the party distraining had not actually got into the locus in quo before the cattle had got out of it, the justification cannot be supported (Id.). The remedy is not confined to the mere owner of the soil upon which they may be found, but extends to all who may receive injury, such as commoners or other persons entitled to the use or produce of the land merely (Hall v. Harding, 4 Burr. 2432). Where A. demised to B. the milk of twenty-two cows to be provided by A. and to be fed at A.'s ex- pense on certain closes belonging to A. ; A. covenanting that B. might turn out a mare, and tliat no other cattle should be fed there ; it was held, that the sepa- rate herbage and feeding of those closes passed to B., and that B. might [*490] distrain other cattle of A. doing * damage there (Burt v. Moore, 5 T. R. 329). A tenant holding over after the expiration of his term cannot lawfully distrain the landlord's cattle put upon the premises by way of taking possession (Taunton ?•. Costar, 7 T. R. 401 ; Butcher r. Butcher, 7 B. & C. 399). No kind of thing which is capable of being damage feasant and not in actual use is exempt from distress for such damage. F'or damage feasant the party grieved or his agent may distrain in the nigiit, otherwise it may be the beasts will be gone before he can take them (Co. Lit. 142 a). If a suflicient tender be made of damages before the taking, tlie taking is unlawful ; if after the taking, and before the inipoundhig, then although the taking is lawful, the detainer after the tender is unlawful; and in either case replevin may be maintained (Evans r. Elliott, 5 A. & E. 142; (hilliver v. Cozens, 1 C. B. 788; West V. \ibbs, 4 C. B. 172). A distress damage feasant cannot be sold for the damage done (Layton r. Hurry, 8 Q. B. 811). By & 7 Vict. c. 30, power is given to two justices, where cattle are distraint'd, to convict jx-rsons releasing or attemjjting to release them ; and the justices may award any part of tlie penalty to the person on whose behalf tlie distress is made. The jus- tices cannot act in cases of disputed title and other cases. 762 Ch. XI. S. 13.] SATISFACTION OF ARREARS OF RENT. *491 Sect. 13. — Satisfaction of Arrears of Rent by Execution Creditor. (a) Execution in High Court. Goods in the custody of the law under an execution cannot at common law be distrained for rent (r). But to prevent collusion between tenants and their judgment creditors to defeat the landlord's remedy by distress, 8 Ann. c. 14, s. 1, enacts, that " no goods or chattels whatsoever lying or being in or upon any messuage, lands or tenements wliich are or shall be leased for life or lives, term of years, at will or other- wise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out, shall, before the removal of such goods from off the said premises, by virtue of such execution, or extent, pay to the landlord of the said premises or his bailiff all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking such goods or chattels by virtue of such execution, provided the said arrears of rent do not amount to more than one year's rent ; and in case the said arrears shall exceed one year's rent, then the said party at whose suit such execution is sued out, paying the said landlord or his bailiff one year's rent, may proceed to execute his judgment as he might have done before the making of the act ; and the sheriff or other officer is hereby empowered and required to levy and pay to the plaintiff as well the money so paid for rent as the execu- tion money." Saving for crown debts. — Section 8 provides, that nothing in the act contained shall extend, or be construed to extend, to let, hinder or prejudice her Majesty, her heirs or succes- sors, in the levying, recovering or seizing any debts, fines, penalties or forfeitures due, payable or answerable to * her, but that it shall and may be lawful for her to [*491] levy, recover and seize the same in the same manner as if the act had never been made. (»•) Ante, 442; Co. Lit. 47 a; Wharton v. Naylor, 12 Q. B. 67.".; G D. & L. 136. 763 *491 DISTRESS FOR RENT. [Ch. XI. S. 13. Tenancies for less than a year. — By 7 & 8 Vict. C. 96, S. 67, '^ no landlord of any tenement let at a weekly rent shall have any claim or lien upon any goods taken m execution under the process of any court of law for more than four weeks' arrears of rent ; and if such tenement shall be let for any other term less than a year, the landlord shall not have any claim or lien on such goods for more than the arrears of rent accruing during four such terms or times of payment." County court executions. — The 19 & 20 Vict. c. 108, s. 75, enacts that the 3 Ann. c. 14, s. 1, " shall not apply to goods taken in execution under the warrant of a county court," and provides a special process for such a case (s). Application of statute of Anne. — The 8 Ann. c. 14, s. 1, is to be construed liberally (^) i.e. in favour of landlords. It does not, however, apply to executions at the suit of the landlord ((i). The words "party at whose suit the execu- tion is sued out " are not confined to plaintiffs, but have been held to apply where a defendant sued out execution for his costs of defence (r), and to a seizure under an outlawry in a civil suit (;y), or under a sequestration from the Court of Chancery (2). Where there are two or more executions the landlord cannot have a year's rent on each (a). If the goods remain on the demised premises after a fictitious bill of sale made of them under an execution, they are liable to be distrained (/>). Notwithstanding a fraudulent bill of sale by the tenant the property remains vested in him, so as to be liable to an execution against his goods, or a distress (c). The act applies to all goods and chattels whatsoever iipon the demised premises, whether l)elonging to the tenant or not (r7) : and whether liable to a distress or not (/')• No goods may be removed, &c. — None of the goods may (s) Post, 400. («) Dod V. Saxby, 2 Stra. 1024. (<) Ilenchett v. Kimpson, 2 Wils. (/>) Smith v. Russoll, :] Taunt. 400. 141. (r) Reed v. Thoyts, M. & W. (h) Taylor r. Lanyon, Bing. 636. 410 ; 8 Dowl. 410. (r) Ileneliett v. Kimpson, supra. (d) Forster v. Cookson, 1 Q. B. (//) St. Jolm's College, Oxford i-. 410; Duck v. Braddyll, M'Clel. 217; Murcott, 7 T. 1{. 2^0 ; Watson on 13 Price, 4.%. Sheriff, 277 (2nd ed.) ; Atkinson on (c) Kiselcy v. Ryle, 11 M. & W. Sheriff, 311 (Gthcd.). 10, 22. (:) Dixon c. Smith, 1 Swanst. 457. 764 Ch. XI. S. 1:3.] SATISFACTION OF AKUEAKS. *492 be removed from off the demised premises until the rent is paid, otherwise the sheriff will be personally liable to an action founded on the statute (/) ; or to a summary applica- tion to the Division of the High Court out of which the execu tion issued, or to a judge, to compel him to pay the arrears of rent (not exceeding one year's rent) and the costs of the application ((/), but an actual removal * is [*492] necessary: the mere execution of a bill of sale by the sheriff to a purchaser is not sufficient (Ji). No action lies against the execution creditor for any svich removal, it being the act of the sheriff (i). There must be a subsisting tenancy. — The act only applies to a subsisting tenancy, and the landlord's statutory right to be paid arrears of rent ceases on determination of the lease (Jc). Where in an agreement for the sale of certain premises there was a stipulation that "in the mean time and until the assignment was made, the purchaser should pay and allow to the vendor at the rate of 100?. per annum, from the time of taking possession of the premises until the comple- tion of the purchase, in equal half-yearly payments ; " the purchaser having taken possession, and one half-yearly pay- ment being due, it was held that it was due as rent^ and that the vendor was entitled to it, under the statute of Anne, before the removal of any of the goods which had been seized under an execution after it became due (l). Forehand rents. — The act applies to forehand rents, pay- (/) Levy V. Godson, 4 T. R. 687 ; G. 1001 ; 1 D. & L. 901 ; White v. Calvert v. Joliffe, 2 B. & Adol. 418 ; Binstead, 13 C. B. 304. Wintle V. Freeman, 11 A. & E. 547 ; (/) Palgrave v. Windham, 1 Stra. Riseley v. Ryle, 1 Dowl., N. S. 660; 212; Riseley v. Ryle, 11 M. & \\ . 10 M. & W. 101; 11 Id. 16; Forster 16, 20 ; Cocker v. Musgrove, 9 Q. B. V. Cookson, 1 Q. B. 419; Bible v. 230. Hussey, 2 Ir. Com. L. R. 308 ; 16 W. (t) Cox v. Leigh, L. R. 9 Q. B. R. 710; Watson on Sheriff, 277 (2nd 333; 43 L. J., Q. B. 123; 30 L. T. ed.). 494; 22 W. R. 730. 8ee too Cook i-. ((]') West V. Hedges, Barnes, 211 6 M. & G. 1004, note; Henchett v. Kimpson, 2 Wils. 140 ; Arnett v Garnett, 3 B. & A. 440; Yates v Rutledge, 5 H. & N. 24©. (Ji) Smallman v. Pollard, 6 M. & Cook, Andrews, 219 ; Hodgson v. Gascoigne, 5 B. «& Aid. 88; Riseley r. Ryle, 10 M. & W. 101 ; 11 Id. 16. (/) Saunders r. Musgrave, 6 B. & C. 524; 2 C. & V. 294; Anderson i-. Midland R. Co., 3 E. & E. 614; 30 L. J., Q. B. 94. 765 *493 DISTRESS FOR RENT. [Ch. XL S. 13. able in advance (wj), even when reserved in a mortgage deed by way of further security for the interest Qn), also to cases of lessee and subtenant of apartments (o) but not as between the ground landlord and a sublessee of his tenant (jw). Executors and administrators. — The executor or adminis- trator of a deceased landlord who might, but for the execu- tion, distrain for arrears of rent, is entitled to claim such rent (not exceeding one year's rent) from the sheriff (5') ; but not an administrator who first obtains letters of adminis- tration after the goods have been removed and sold, and the proceeds paid over to the execution creditor (r). Liability of sheriff. — The sheriff is liable to an action at the suit of the landlord, for not paying a year's rent, though the sheriff ought not to have seized the goods on account of the tenant having become bankrupt, and may therefore be liable also to an action at the suit of the assignees (s). Where a sheriff seized and sold goods under a fi. fa., he was held to be liable to pay the whole of the proceeds to the assignees of the tenant, though he had paid a year's rent to the landlord (^). In order to enforce a landlord's claim' for a year's rent against trustees of a bankrupt tenant, after a seizure under a fieri facias which is illegal [*493] as * against them, there must be an actual distress : unless, perhaps, the sheriff has paid the amount before he had notice of the bankruptcy (it). Where the sheriff seizes and removes, under a fi. fa., goods which are not the property of the judgment debtor, and afterwards pays the whole of the proceeds of the sale to the real owner, he is still liable under the statute for not paying a year's rent to the landlord (a;). Under a fi. fa. against A., the sheriff seized the goods of B. ; B. claiming them, the sheriff (m) Harrison v. Barry, 7 Price, (r) Walring r. Dewberry, 1 Stra. 600; Duck V. Braddyll, M'Clel. 217 ; 97. 1:5 Price, 455. (s) Duck v. Braddyll, M'Clcl. 217 ; (h) Yates v. Ratledge, 5 II. & N. 13 Price, 455. 249. (0 Lee v. Lopes, Bart., 15 East, (0) Thurgood v. Richardson, 7 230. Bing. 428; 4 C. & P. 481. (n) nctliiii r. Wilk.s 2 Dowl. 189. f/<) Bennett's case, 2 Stra. 7H7. (.' ) Forster v. Cookson, 1 Q. B. (7) Palgrave v. Windham, 1 Stra. 419. 212. 766 Ch. XI. S. 1?,.] SATISFACTION OF ARliEAKS. *493 obtained an order under the Interpleader ^Vct, and C, the hmdlord, claimed 25^. for a quarter's rent. The goods were sold under the order, and the amount, after deducting the 25/., was paid by the sheriff into court. On the trial of the issue, B. established his claim ; it was lield, that, under the circumstances, the sheriff was not justified in paying the rent (y). Landlord entitled to full year's rent. — The landlord is enti- tled to a full year's rent (if so much is in arrear) notwith- standing he has usually remitted some portion of it to the tenant (2). But he can only claim from the sheriff the rent which Avas due at the time of the taking the goods in execu- tion, and not that which accrued after the taking and during the continuance of the sheriff in possession (a). This used to be so where growing crops were seized under an execu- tion and remained in the custody of the sheriff or his vendee until they became ripe and were cut and carried within a reasonable time in that behalf (^). Growing crops seized liable for rent due after seizure. — But now, by 14 & 15 Vict. c. 25, s. 2, "in case all or any part of the growing crops of the tenant of any farm or lands shall be seized and sold by any sheriff or other officer by virtue of any writ of fieri facias or writ of execution, such crops, so long as the same shall remain on the farms or lands, shall, in default of sufficient distress of the goods and chattels of the tenant, be liable to the rent which may accrue and become due to the landlord after any such seizure and sale, and to the remedies by distress for recovery of such rent, and that notwithstanding any bargain and sale or assignment which may have been made or executed of such growing crops by any such sheriff or other officer." In consequence of this enactment, the execution creditor can only make sure of being able to sell the crops, under an execution for their value, minus the accruing rent; and the landlord may after- 0/) White V. Binstead, 13 C. B. 245 ; Reynolds r. Barford, 7 M. & G. 304.' 449; 2 1). & L. 327. (z) Williams v. Lewsey, 8 Bing. (h) Wharton i'. Naylor, 12 Q. B. 28. ^ 673; 6 D. & L. 136. (a) Hoskins v. Knight, 1 M. & S. 767 *494 DISTRESS FOR RENT. [Ch. XI. S. 13. wards favour the purchaser to the detriment of the tenant by abstaining from distraining upon the crops so sold, and suing the tenant for such rent, or distraining for it on other goods. Whether actual notice to the sheriff is necessary. — It is not clear whether the statute of Anne requires notice to be given to the sheriff of the arrears of rent due and claimed [*494] by the * landlord. Such notice is not required in express terms ; and it has been held that knowledge by the sheriff of the arrears due is equivalent to actual notice thereof (^r). In more recent acts in pari materia notice is expressly required (t^). And under 8 Anne it has been held that the landlord must demand, or the sheriff is not bound to secure, the rent, for he cannot take notice what the arrears are ; but if the landlord comes and acquaints him with them, then and not till then is he obliged to see the year's rent satisfied before removal of the goods (e). Where an action was brought against the sheriff by the execution debtor for seizing and selling more goods than were neces- sary to satisfy two executions, the court decided against the sheriff expressly on the ground that he had no right to levy for rent without a claim being first made by the landlord (/). In an action against the sheriff, founded on the statute, notice is always alleged, and should not be omitted (^). But after verdict, an allegation that the sheriff, *•' well knowing the premises," removed the goods without paying the rent, seems to be sufficient upon motion in arrest of judgment or on appeal (A). Notice from the landlord to the execution creditor is clearly unnecessary (0. (c) Andrews v. Dixon, 3 B. & A. (7) Arch. L. & T. 255; BuUcn & L. 645; Kiseley i-. Ryle, 11 M. & W. 20; PI. 403 (3r(l ed.) ; Tluirgood v. Rich- Bible V. Ilusscy, 2 Ir. Com. L. R.308; ardson, 7 Ring. 428; 4 C. & P. 481 ; 16 W. R. 710. Reed v. Thoyts, 6 M. & W. 410; 8 () See Augustein v. Challis, 1 (/?0 Colyer v. Speer, 2 Bred. & B. Exch. 279. 67. (9) See Form, Appendix D., No. 10. (n) Colyer v. Speer, ante. (?) Cocker v. Musgrove, 9 Q. B (()) Arnitt v. Garnitt, 3 B. & A. 223, 285. 440; Yates v. Ratledge, 5 H. & N. 769 *496 DISTRESS FOR RENT. [Ch. XI. S. 13. upon to sell the goods let their value he what it will. Until the rent be paid, there are no goods out of which the sheriff is hound to levy^ that is, which he is bound to sell" (s). The statute says that the goods shall not be " liable to be taken," i.e. taken and sold under the execution, " unless the party at whose suit the said execution is sued out, shall before the removal " pay the rent (t). " It is clear the statute does not mean the original taking, but that there shall not be a substantial taking for the satisfaction of the debt, that is, by the removal and sale of the goods, without payment of the rent" (w). Prior to the decision in Cocker -y. Musgrove (re), the usual practice was for the sheriff to sell the goods under the execution and out of the proceeds to pay the landlord's rent, and to aj^ply the surplus (minus expenses) in or towards satisfaction of the debt or damages and interest, with costs of the execution, &c., as indorsed on .the writ Qf) ; and he may still adopt that course if he thinks fit, and so secure his poundage fees, &c. He is entitled to poundage upon the amount of rent levied and paid (z) ; but not to deduct it from the landlord's rent (a). By proceeding to sell and remove with notice or knowledge that rent is due, he sometimes runs considerable risk : for instance the prop- erty seized may belong to a third person (?>) ; or to the trus- tees of the tenant who has become a bankrupt (c), or the goods when sold may not produce sufficient to satisfy the rent (tZ). The amount of rent claimed may be disputed, especially where a large sum is claimed for a penal [*496] rent of so much * per acre (e). Moreover, when the landlord makes a claim for rent, the sheriff cannot (s) Cocker t;. Musgrove, 9 Q. B. L. J., Q. B. 359 ; Foulper u. Taylor, 5 235; Calvert v. Joliffe, 2 B. & Adol. II. & N. 202 ; Wliite v. Binstead, 13 421. C. B. 304. (0 Ante., 490. (c) Duck v. Braddyl, M'Clel. 217 ; (u) Per Farko, B., in Riseley v. 13 Trice, 455 ; Lcc r. Lopes, 15 East, Ryle, 11 M. & W. 21. 230. (x) 9 Q. B. 223, 235. {d) Ilenchett v. Kimpson, 2 Wils. (y) 1 Chit. Arcli. 640 (11th ed.). 141 ; Calvert v. Joliffe, 2 B. & Adol. (z) Davies i-. Edmonds, 12 M. & 418; Groombridge v. Fletcher, 2 W. 31 ; 1 D. & L. 305. Dow). 353. («) Gore V. Gofton, 1 Stra. G43. (c) Bateman v. Farnsworth, 29 L. (/>) Forster r. Cookson, 1 Q. B. 419; J., Ex. 366. Beard v. Knight, 8 H. &. B. 805 ; 27 770 Cn. XI. S. 13.] SATISFACTION OF ARREARS. *496 • obtain any relief against such claim under the Interpleader Act(/). And it was held, before the Judicature Act, that the tenant could not sustain a l)ill of interpleader in equity against his landlord, unless the title was affected by some act done by the landlord subsequently to the lease (,^). All these difficulties may generally be avoided by the sheriff giv- ing notice to the execution creditor, and proceeding as before suggested (/t). But in such case he should carefully abstain from a removal of any of the goods from off the premises until the rent has been actually paid («'). He should also secure legal evidence of the tenancy, and of the arrears of rent due fZ"). Remedy against sheriff. — The remedy which a landlord has in cases where the sheriff proceeds to levy the execution and remove the goods without payment of the rent, is by a sum- mary application to the court or to a judge at chambers, founded upon affidavits, to compel the sheriff to pay the rent due (not exceeding one year's rent) and the costs of the application (J) ; or by a special action on the case against the sheriff, founded on the statute (m) ; but not an action for money had and received (ji). (b) Under County Court Process. Rent may be claimed in 5 days. — If goods be taken in ex~ ecution under a County Court Warrant, the statute 8 Ann. c. 14, s. 1, does not apply, but a special procedure is sub- stituted for it by the County Court Act, 1856, under which the landlord may claim rent within five days from the execu- tion, and so get the county court bailiff to distrain for him. The words of the act (19 & 20 Vict. c. 108, s. 75) are these : — " Section one of the act of the eighth year of the (/) 1 & 2 Will. 4, c. 58, s. 0; Wat- 1001 ; 1 D. & L. 901 : White v. Bin- son's Sheriff, 282-288 (2nd ed.) ; Hay- stead, l:^ C. B. 304. thorn V. Bush, 2 Cr. & M. 869; 2 (/.) Augustein v. Challis, 1 Exch. Dowl. 041; Bateniaii v. Farnsworth, 279; Keightley v. Birch, 3 Camp. 20 I.. J., Ex. 305. 521. ((/) Cook V. Earl Rosslyn, 1 GitT. (l) Ante, 491. 167 ; 28 L. J., Ch. 8:03. ('«) Ante, 491. (A) Ante, 493. (?i) Green r. Austin, 3 Camp. 260. (0 Suiallman v. Pollard, M. & G. 771 *497 DISTRESS FOR RENT. [Ch. XI. S. 13. reign of Queen Anne, chapter fourteen, shall not apply to goods taken in execution under the warrant of a county court, but the landlord of any tenement in which any such goods shall be so taken mai/ claim the rent thereof at any time within five clear days from the date of such taking, or before the removal of the goods, by delivering to the bailiff or officer making the lev}' any writing signed by himself or his agent, which shall state the amount of rent claimed to be in arrear, and the time for and in respect of which such rent is [*497] due (). Where a replevin cannot legally be made, the registrar should on that ground refuse to act, but an action will lie against him for refusing to replevy in a proper case (y a decides that trespass lies ajxainst .a plaintiff in replevin, is repealed hy corporation aij^rcfjate for an act done the Statute Law Revision and Civil by their ajient within the scojie of Ins Procedure Act, 1883, 40 & 47 Vict. c. authority; and see Green v. London 49, apparently beinjj superseded by General Omnibus Co.. 7 C. TV. \. S. K. S. C. Order XXII. rule 9. 290; 29 L. J., C. I', b!. (/) Gilb. Kcpl. ir)2. (})) Gary v. Matthew.s, cited 1 Salk. (m) Badkin v. Powell, 2 Cowp. 470. 191 ; (j Vin. Abr. 287. (7) Anil', 4:15. 7S0 Cii. XII. S. 1.] REPLEVIN. *504 cattle need not be ascertained, for whatever may be tlieir value (whether more or less than the rent or damage claimed), the security must be for such an amount as Llie registrar of the County Court shall deem sufficient to cover the alleged rent or damage in respect of which the distress was made and the probable costs of the cause in the County Court, or in the High Court, as the case may be (r), and does not, as formerly, depend upon the value of the goods dis- trained, which had to be ascertained upon the oath of some competent person (s). Whether a bond with two sufficient sureties shall be given pursuant to 19 & 20 Yict. c. 108, ss. 65, 66 (^), and who are competent and willing to become such sureties ; or whether a deposit, with a memorandum, shall be made pursuant to sect. 71 Qa'). Replevy made by registrar of County Court. — Formerly re- plevies were made by the sheriff of the county within which the distress was taken, or by his under-sheriff or deputy (x) ; and the sheriff of each county was bound to appoint four deputies at least, dwelling not above twelve miles from each other, for the purpose of making replevies (//). But by 19 & 20 Vict. c. 108, s. 63, *'^tlie powers and [*504] responsibilities of the sheriff with respect to replevin bonds and replevins shall henceforth cease ; and the registrar of the County Court of the district in wdiich any distress sub- ject to replevin shall he tahen shall be empowered, subject to the regulations hereinafter contained, to approve of replevin bonds, and to grant replevins, and to issue all necessary pro- cess in relation thereto, and such process shall be executed by the high bailiff." Replevin to be granted on security given. — By sect. 64, "such registrar shall, at the instance of the party whose goods shall have been distrained (2), cause the same to be replevied to such party, on his giving one or other of such (r) 19 & 20 Vict. c. 108, ss. 65, G6, {x) 52 Hen. 3, c. 21 ; 2 Inst. 138. 71. (//) 1 P. & M. c. 12, s. 3; see (s) See 11 Geo. 2, c. 19, s. 28, Mid- Taulkner v. Johnson, 11 M. & W. dleton V. Bryan, 3 M. & S. 155. 581 ; Plumer v. Brisco, 11 Q. B. 46. (t) Post, 504. (z) A replevin c:\n Lc liad only by (u) Post, 506. or on behalf of the actual or construe- 781 *oOo REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1. securities as are mentioned in the next two succeeding sec- tions." (See below.) It may be here stated that by 23 & 24 Vict. c. 126, s. 22, the provisions of 19 & 20 Vict. c. 108, "which relate to replevin, shall be deemed and taken to apply to all cases of replevin, in like manner as to cases of replevin of goods dis- trained for rent or damage feasant." The action of replevin is prima facie to be brought in the County Court, but under certain restrictions it may be brought also in the High Court of Justice. Replevins in high court. Conditions of security. — By 19 & 20 Vict. c. 108, s. 65, " an action of replevin may be com- menced in any superior court in the form applicable to per- sonal actions therein, and such court shall have power to hear and determine the same ; and if the replevisor shall wish to commence proceedings in any superior court, he shall, at the time of replevying, give security, to be approved of by the registrar, for such amount as such registrar shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause in a superior court, conditioned to com- mence an action of replevin against the distrainer in such superior court as shall be named in the security, UHthin one week from the date tliereof, and to prosecute such action with effect (a) and without delay (/>) ; and, unless judgment therein be obtained by default, to prove before such superioi- court that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair or franchise was in question, or that such rent or damage exceeded twenty j^oundx^ and to make return of the goods, if a return thereof shall 1h' adjudged " (f)- Replevin in County Court. Conditions of security. — By sect. 66, "it" the re})levisi)r shall wisli to commence pro- [*505] ccedings * in a County Court, he shall at the time of replevying give security, to be approved of by the tive owner of tlie {joods ; not by one (6) Ante, 500 (rf). who merely has tlie possession of {<■) See Form of Bond, Appendix them (without more) ; «H^f', f)02 ; but E., Sect. 1, No. 5; of Meinoninduin see Fell i'. Wiiitaker, post, G'if). of Deposit in lieu of Bond, Id., No. 0. (n) I.e., with success; ante, f)(IO (c). 782 Cn. XII. S. 1.] REPLEVIN. *505 registrar, for such an amount as such registrar shall deem sufficient to cover the alleged rent or damage in respect f)f which the distress shall have been made, and the probable costs of the cause in the County Court, conditioned to com- mence a]i action of replevin against the distrainer in the County Court of the district in which the distress shall have been taken, within one month (d) from the date of the secur- ity, and to prosecute such action with effect (e) and without delay (/), and to make return of the goods, if a return thereof shall be adjudged" (^). Removal of replevins into high court by certiorari. — By sect. 67, " any action of replevin brought in a County Court shall be removed into any superior court by writ of certiorari, if the defendant shall apply to such superior court or to a judge there for such writ, and shall give security, to be approved of by the master of such superior court, for such amount, not exceeding one hundred and fifty pounds, as such master sliall think fit, conditioned to defend such action with effect (It) ; and unless the replevisor shall discontinue or shall not prosecute such action, or become nonsuit therein, to prove before such superior court that the defendant had good ground for believing, either that the title to some cor- poreal or incorporeal hereditament, or to some toll, market, fair or franchise was in question, or that the rent or damage in respect of which the distress shall have been taken ex- ceeded tioenty jiounds ; and every such superior court shall have power to determine the samei action " («'). Security by bond. — By sect. 70, '' where by this act, or any act relating to the County Courts, a party is required to give security, such security shall be at the cost of the party giving it, and in the form of a bond (A;), wdth sureties, to the other party or intended party in the action or proceed- ing : provided always, that the court in which any action on (J) i.v., one calendar month ; 13 (Ji) i.e., with success ; Tunimons v. Vict. c. 21, s. 4. Ogle, G E. & B. 571 ; ante, 500 (c). (e) With success ; ante, 500 (c). (t) See Form of Bond, Appendix (/) ^n^e, 500 ((/). E., Sect. 3, (b) 4; .Aleniorandimi of ((/) See Form of Bond, Appendix Deposit in lieu of Bond, Id., No. 5. E,, Sect. 1, No. 7 ; of Memorandum (A) See Forms. of Deposit in lieu of Bond, Id., No. 8. 783 *506 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1. the bond shall be brought, may, by rule or order, give such relief to the obligors as may be just, and such rule or order shall have the effect of a defeasance of such bond."' Joint-stock companies and infants may give such bonds. — It seems that a bond of the above nature may be entered into by a joint-stock company, or even by an infant, with suffi- cient sureties, and that the registrar cannot refuse to receive such bond, on the ground that the principal obligor is dis- qualified to execute it ; for otherwise such parties would lose the benefit of the statute (?), and be thereby deprived of the right to replevy. [*506] * Security by deposit. — By sect. 71, " where by this act, or any act relating to the County Courts, a party is required to give security, he may in lieu thereof deposit with the registrar, if the security is required to be given in a County Court, or with a master of the superior court if the security is required to be given in such court, a sum equal in amount to the sum for which he would be required to give security, together with a memorandum (m), to be approved of by such registrar or master, and to be signed by such party, his attorney or agent, setting forth the conditions on which such money is deposited, and the registrar or master shall give to the party paying a written acknowledgment of such payment; and the judge of the County Court, when the money shall have been deposited in such court, or a judge of the superior court, when the money shall have been deposited in a superior court, may, on the same evidence as would be required to enforce or avoid such bond, as in the last preced- ing section is mentioned, order such sum so deposited to be paid out to such party or parties as to him shall seem just." Notices of proposed sureties. — By the County Court Rules of 1875, Order XXX., it is provided that, "in all cases where a party proposes to give a bond by way of security, he shall serve by post, or otherwise, on the opposite party and the registrar, at his office, notice of the proposed sureties, accord- (/) Sec Young v. Broniptoii, Cliat- (;«) See Form, Appendix E., Sect, liatn and OillinKliam Wati-rworks (lo., 1, No. 8. 1 B.& S. f)75; .31 L..T., Q. B. 14 ; and dicta tlicrc'in. 784 Cu. XII. S. 1.] REPLEVIN. *507 ing to the form in the schedule {n) ; and the registrar shall forthwith give notice to both parties of the day and hour on which he proposes that the bond shall be executed, and shall state in the notice to the obligee that should he have any valid objection to make to the sureties, or either of them, that it nnist then be made " (r. 1) (o). Affidavit by sureties. — " The sureties shall make an affida- vit of their sufficiency according to the form in the sched- ule (^), unless the opposite party shall dispense with such affidavit " (r. 2). Bond, how executed. — " The bond shall be executed in the presence of the judge or registrar, or a commissioner of the Supreme Court of Judicature " (r. 3). Notice of security by deposit. — " Where a party makes a deposit of money in lieu of giving a bond, he shall forth- with give notice to the opposite party by post, or otherwise, of such deposits having being made " (r. 4). Bond to be deposited with registrar. — " In all cases where the security is by bond, the bond shall be deposited with the registrar until the action be finally disposed of" (r. 5). "No registrar, deputy registrar, registrar's clerk, bailiff, broker, or * other office of the court shall [*507] become surety in any case where by the practice of the court security is required" (r. 6). The sureties should be two freeholders or housekeepers. The opposite party should make inquiries as to the suffi- ciency of the proposed sureties, in like manner as where bail is put in in a superior court ; and if he has reason to think them insufficient, he should attend before the registrar at the time and place appointed, and object to them, and, if necessary, examine them before the registrar, who, after hearing all parties, will decide whether or not the sureties are sufficient. It seems that the registrar is not liable (as the sheriff formerly was) to an action for taking insufficient sureties on a replevy (5-). Therefore the distrainer must, (n) See Form, Id., Sect. 1, Nos. 1 (p) See Form, Appendix E., Sect. & 2. 1, No. 4. (0) See Form, No. 301 in Schedule (7) Pollock & Nicol, C. C Prac. to C. C. Rules. (8th ed.), p. 21; BuUen & L. Pi. 2:]5 785 *50T REMEDIES FOR WROJS'GFUL DISTRESS. [Cii. XII. S. 1. at Ilia peril, avail himself of this opportunity to make any objections to them. "Where action may be brought. — It is to be observed, with reference to the foregoing enactments and rules, that all actions of replevin, without any exception, may be com- menced and prosecuted to final judgment and execution in the County Court of the district within which the distress was taken, whatever may be the amount of rent or damage claimed, and notwithstanding the title to some corporeal or incorppreal hereditament, or to some toll, market, fair oi' franchise is in question (?•). In many cases it may be expe- dient for the replevisor to sue in the County Court, rathei- than in the High Court, even where he has the option of suing in either court, and especially where there is any doubt whether he has such option ; or where he expects to fail in the action, and to have to pay all the costs (which are much less in the County Court than in the High Court). Costs in County Court. — It seems, however, that if success- ful in the County Court he will only recover costs as in an action for less than qI. (s), notwithstanding the distress was taken for more than 20?. (or even bOl. or 500Z.), and the value of the goods replevied was more than sufficient to satisfy the distress ; or however important or difficult may be the question of law or fact involved, the damages recover- able in the action being always under 5?. (f), unless indeed the judge award costs on the higher scale, under s. 7 of the County Courts (Costs and Salaries) Act, 1882 (45 & 46 Vict. c. 57). But it does not appear to be finally settled in the County Courts whether the value of the goods replevied ought not to be jjroved and taken into consideration, as part of the damages recovered, with a view to costs. (3r(l cd.) ; sec, however, 2 Chit. Arcli. (;) Reg. v. Raines, 1 E. & B. 856; 904 (l.'Jth ed.) ; Young v. Brompton, 22 L. J., Q. B. 223 ; Be Fordham /•. &c., Co., ante, 505 (/). Even the sher- Aekers, 4 B. & S. 578 ; 33 L. J., Q. B. iff was not liable where the sureties 07. were apparently responsible, and he (.s) As to what costs are included exercised a reasonable discretion in in such cases, see the County Court accepting them ; Hindle v. Blades, 5 Acts and Rules. Taunt. 225 ; .TelTery v. Bastard, 4 A. (0 Tease v. Chaytor, 3 B. & S. 634. & E. 823. 786 Cii. XII. S. 1.] REPLEVIN. *508 When action should be in High Court. — Supposing the distress to have been wholly illegal, the replevisor * cannot safely brhig replevin in the High Court, [*508] unless he can prove before such court that he has good ground for believing either that the title to some cor- poreal or incorporeal hereditament, or to some toll, market, fair or franchise is in question, or, that the rent or damage in respect of which the distress was made exceeded twenty pounds. In some cases, where the replevisor has good ground for so believing, he may not be able to prove it to the satisfaction of the High Court (m), and where there is any doubt on this point, it is safer to sue in the County Court. In many cases, where the replevisor clearly has the option to sue in either court, it may be expedient for him to sue in the County Court rather than in the High Court. But the point above mentioned as to costs should not be overlooked, as it may make a great difference. Replevisor having once elected. — After the replevisor has once elected to sue in a County Court, he cannot afterwards remove the action into the High Court. He might have done so under 9 & 10 A^ict. c. 95, s. 121, but that section was repealed by 19 & 20 Vict. c. 108, s. 2. The defendant in replevin cannot safely remove the action from the County Court into the High Court by certiorari unless he can prove before the High Court that he has good ground for believing, either that the title to some corporeal or incorporeal heredita- ment, or to some toll, market, fair or franchise is in question, or that the rent or damage in respect of which the distress was taken exceeded twenty pounds (ic) ; and even in such cases, he must give security for such amount not exceeding 150^., as the master shall think fit, conditioned to defend such action with effect (jf). Within what time to be brought. — Where the action of replevin is to be brought in the High Court, it must be com- menced by a writ of summons in the usual form issued out (u) See tlie declaration in Tum- (:r) Tummons v. Ogle, supra. mons V. Ogle, G E. & B. 571, 575 ; 26 (y) Ante, 500 (c) ; Tummons v. L. J., Q. B. 403. Ogle, supra. 787 *509 REMEDIES FOE WRONGFUL DISTRESS. [Ch. XII. S. 1. of the proper court, within one week from the date of the replevin bond or of the memorandum of deposit (2;). Where the action of replevin is to be brought in the County Court, a plaint must be entered there within one calendar month from the date of the replevin bond, or of the memo- randum of deposit (a). The amount of the security, whether by bond or deposit, we have seen does not depend upon the value of the cattle or goods to be replevied, but upon the amount of the alleged rent or damage and the probable costs of the cause in the High Court or in the County Coui-t, as the case may be (5). Probably nearly all actions of replevin would be com- menced and determined in the County Courts, but [*509] for the objection as to costs before * mentioned (c). That however is so serious a drawback, as to render it generally unadvisable for the plaintiff to bring liis action of replevin in the County Court where he can possibly avoid doing so, except where he knows that he is in the wrong, and will have to pay all the costs of the action. Fees payable on a replevy. — The fees payable at the County Court, on making a replevy, are as follows ((/) : £ s. d. For a warrant to replevy 2 6 For a replevin bond, where the alleged rent or damage (e) does not exceed 20^. ... 10 6 For a replevin bond, where the alleged rent or damage (^) exceeds 20/ 110 For notice to the distrainer 2 6 For delivering the goods 110 Together with 6d. a mile from the court house to the place where the goods are. other fees in replevin. For making a return to a writ of certiorari, 6d. in the pound, so long as total does not exceed 10 (z) m & 20 Vict. c. 108, s. 55. Sched. (C), as altered by Treasury (u) Id: 8. CO. Order of October, 1875; Pollock & (h) Ante, p. 503. Nicol, C. C. Prac. 2()-:]5 (8th ed.). (r) Ante, p. 471. . (e) The words "or dainafje " apply ('/) 10 & 20 Vict. c. 108, s. 78, to a claim for damage feasant. 788 Ch. XII. S. 1.] REIM.EVIN. *510 X S. d. For costs out of pocket in the same . . . 15 Tlie fees payable in an action of replevin in the County Court are the same as those in other actions (/). In replevins all poundage, except as aforesaid, shall be estimated on the amount of the alleged rent or damage, to be fixed by the registrar. The poundage is Is. in the pound ; fractions of a pound are to be reckoned as one pound. In every case where the poundage would, but for this direction, be estimated on an amount exceeding 20^., it shall be estimated at 20?. only. (c) Action of Replevin in the County Court. Replevin without writ — By the County Court Act (9 & 10 Vict. c. 96), s. 119, "all actions of replevin in cases of distress for rent in arrear, or damage feasant (^), which shall be brought in the County Court, shall be brought with- out writ in a court held under this act." By plaint. — By sect. 120, " in every such action of replevin the plaint shall be * entered in the court [* 510] holden under this act for the district wherein the dis- tress was taken." Within one month. — By 19 & 20 Vict. c. 108, s. 66, the action must be brought within one [calendar] month from the date of the securitj^ (whether by bond or memorandum of deposit), and must be prosecuted with effect (A), and without delay (i). Entry of plaint. — The action is commenced by entering a plaint in the usual form at the office of the registrar of the County Court, which is generally open from ten till four, except on Saturday (Ic)., when the office closes at one o'clock. • (/) See Pollock & Nicol, C. C. (/O i.e., with success; ante, 500 Prac. (c). («7) Extended to all cases of re- (/) .In^c, 500 (rf). plevin whatever, by 23 & 24 Vict. c. (A) When Saturday is tlie market- 126, s. 22. day of the town in which the court is 789 *510 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1. C. C. Rules, Order XXII. — By the County Court Rules of 1875, Order XXII., provision is made for the regulation of actions of replevin. No other cause of action to be joined. — By Rule 1 of that order, "• in an action of replevin no other cause of action shall be joined in the summons " (Z). This operates as a great protection to landlords and their bailiifs (w), and also prevents confusion in the subsequent proceedings, wherein both parties are considered as actors, or plaintiffs, and the judgment differs from other actions, being frequently for the defendant with damages for the amount of the rent, or damage done, and costs. Particulars of cattle or goods to be replevied. — By Rule 2, " on entering a plaint in replevin the plaintiff must specify and describe in a statement of particulars the cattle, or the several goods and chattels taken and of the distress, or other taking of which he complains " (w). Such particulars must have been prepared when an application was made to the registrar to replevy (o) because the particular cattle or goods intended to be replevied are mentioned in the warrant to the bailiff (i?). Fees. — The registrar, or his clerk, enters the plaint upon being furnished with such particulars, and upon payment of the usual fees (p). Summons to defendant. — Upon the plaint being entered a summons issues in the usual form, with particulars annexed, and a copy is served on the defendant by the bailiff, in like manner as in other actions (^). Trial and judgment in a summary -wray. — By Rule 3, " all actions of replevin in cases of distress for rent in arrear, or for damage feasance (r), shall be tried in a summary way as other actions in the courts holden under the authority of the County Courts Act, 1846, and the judgment therein, lioldcn, some otiier (l;iy is fixed by («) See Fyrni, App. E., Sect. 3 (a) order of the judj^o. 1, poal. CO See per Tollock, C. B.. in Mun- (o) Ante, 503. !?ean v. Wlieatlcy, (> Excli. 8H ; 20 L. {]>) Td. J., Ex. 100. (7) PoUoek & Nicol, C. C. Prac. Cm) Ah to j)r:i(:tice in Hif^li (%)urt, 205 C*^tli cd.). see 613, post. (r) See 23 & 24 Vict. c. 120, a. 22. 790 Ch. XII. S. 1.] REPLEVIN. *511 in ordinary cases, whether for phaintiff or defendant, shall be according to the forms set forth in tlie schedule" («). * Right to jury. — By Order XVI., Rule 3, cases [*511] of replevin may, at the instance of either party, be tried by jury. Evidence for plaintiff. — The plaintiff must prove the dis- tress or taking of which he complains, and that the defendant was the person who took it or caused it to be taken (^) ; and that the defendant, or his bailiff or agent, took or had the goods or cattle at the place within the jurisdiction of the court mentioned in the plaint. In replevin the alleged place at which the goods were taken is material («) ; but the plaint may be amended by leave of the judge, whenever it can be done without prejudice to the real question intended to be tried upon the merits (a;). The plaintiff must prove that at the time of the taking he had an absolute or qualified prop- erty in the cattle or goods taken (?/). He should also state the amount of expenses incurred in making the replevy ; but where no evidence on that point is given, the usual amount will be awarded if the plaintiff obtain the verdict. No special damage can he recovered unless it be expressly men- tioned in the plaint, and sufficiently proved. The plaintiff may either anticipate by evidence and negative the defend- ant's right to distrain, or he may reserve his evidence on that point until after the defendant has adduced his evi- dence («). Evidence for defendant. — The defendant may contend that the plaintiff's evidence is insufficient on some material point ; ex. gr. — 1. That he, the defendant, was the person who took or caused to be taken the goods or cattle. He may dispute or deny any alleged authority given by him for the distress. If a distress warrant be put in evidence by or on behalf of the plaintiff, the landlord may contend that it was not signed by him, nor by any person autliorized to sign (s) See Forms, App. E., Sect. ?, (.r) 19 & 20 Vict. c. 108, s. 57; C. (a) 2, 3. C. Rules, 1875, Order XVII. ; Pollock (0 Ante, 502. & Nicol, C. C. Prac. 170-173 (8th ed.). (m) Potter V. North, 1 Wins. (//) Ante, 502. Saund. 347 ; Potten v. Bradley, 2 (2) See evidence in reply, post. Moo. & Pnvne, 78. 791 *.512 REMEDIES FOR WRONGFUL DISTRESS. [Cii. XII. S. 1. it as liis agent — and that he has never adopted or ratified it in any manner. He may contend (if the fact be so) that the warrant was expressly confined to the goods of the tenant, and did not extend to the goods of any other person (where a subtenant or lodger or third person sues) — or that the warrant expressly prohibited the taking of anything not legally liable to be taken as a distress for rent (where the replevin is for cattle or goods legally exempt from such a distress). 2. That he neither took nor had the goods or cattle at the place, witliin the jurisdiction of the court, mentioned in the plaint ; although this may sometimes be cured by an amendment, where the defendant took or had the goods at some other place within the jurisdiction. 3. That the goods or cattle were not at the time of the taking the property of the plaintiff (a). Upon any [*512] of * these points he may produce contradictory evi- dence. He may also prove a right to distrain, either on his own behalf or as the bailiff or agent of any other person (6), for all or any part of the rent claimed (c), or for damage feasant, or for any other lawful cause. He need not prove a right to distrain for the particular cause alleged at the time of the taking ; because, as we have seen, a man may distrain for one thing and afterwards avow or justify for another (c?). It is therefore sufficient if he prove a legal right to distrain for any cause whatever. The amount of rent in arrear, and the value of goods distrained, should also be proved (e). The plaintiff may in reply dispute and disprove anything attempted to be proved by the defendant in justification of tlie act complained of, but the usual practice (where the lease or agreement is duly stamped) is for the plaintiff to produce all his evidence in the first instance, rather than as evidence in reply. (a) Ante, 502. 840; 22 L. J., Ex. 16; White v. (6) Sec Trevillian v. Pine, 11 Mod. (Jreenisii, 11 ( '. B., N. S. 209; 8 Jur., 112; 1 WiiLs. Saund. :547 d, note; N. S. 66;}. Trent v. Hunt, 9 Exch. 14 ; 22 L. J., (r/) Ante, 478. Ex. 318 ; Snell ,: Finch, 13 C. B., N. (e) See Slieape v. Culpeper, 1 Lev. S. 651 ; 32 L..I., ('. P. 117. 256; .see. too, ('. C. Rule.s 1875. (c) See Cobb v. Bryan, 3 B. & P. Order XXII., Rule 4, hifra. .348; Roskrufro r. faddy, 7 Exch. Cn. XII. S. 1.] REPLEVIN. *513 The judgment in ordinary cases. — The judgment in re- plevin in ordiuiuy cases, whether for plaintiff or defendant, is in the usual form, as in other actions. Where the plaintiff succeeds he is only entitled to a verdict for the expenses of the replevy (/) as proved or as estimated on the usual scale (^). His solicitor's charges (if any) connected with the replevy must be proved, otherwise nothing will be allowed in respect of them, but only the fees paid to the registrar (7i). As to the plaintiff's costs of the action it is provided by County C'ourt Rules, Order XXXVI., Rule 10, tliat " costs in actions of replevin may, where the fees of court are paid on 5^. and upwards, be allowed to solicitors upon the scale applicable to actions on contract where the amount claimed exceeds 20?. if the judge shall so order." Unless the fees be so paid on 51. or upwards, the plaintiff it seems is still left to his position under 9 & 10 Vict. c. 95, s. 91, and can get no costs of professional assistance, as the damages will be always or nearly always under 51. (i). Judgment for defendant on distress for rent. — By Order XXII., Rule 4, of the Rules of 1875, " where the distress is for rent, or for any other claim for which a distress may be lawfully taken and the defendant succeeds in the action, if the defendant require, the court shall, if the action be tried without a jury, and the jury shall, if the action be tried with a jury, find the value of the goods distrained, and if the value be less than the amount of rent or otherwise of money in arrear, judgment shall be given for the amount of such value, but * if the amount of the rent or such [*513] other sum of money in arrear be less than the value so found, judgment shall be given for the amount of such rent or other sum of money, and may be enforced in the same manner as any other judgment of the court" (/c). Execution. — A judgment for either party in replevin is enforced in the same manner as in other actions (/). (/) Ante, 507. (k) See Form of such Judgment, Ig) Ante, 507. post. Appendix E., Sect. 3, (a) 3. (h) Ante, 507. (/) Pollock and Nico.i, C. C. Prac. (i) See, however, 19 & 20 Vict. p. 191 e< se?. (8th ed.). c. 108, s. 36, and 45 & 46 Vict. c. 57, s. 5. 793 *513 REMEDIES FOE WRONGFUL DISTRESS. [Ch. XII. S. 1. Appeal on question of law to High Court. — Either party to an action of rej)levin, "where tlie amount of rent or dam- age exceeds twenty pounds " (w), who is dissatisfied with the determination or tlirection of the said court, " in point of hiw, or upon the admission or rejection of any evidence " (but not on any question of fact}, may appeal from the same to any of the superior courts of common hxw at Westminster, upon the same terms and conditions and in like manner as in other actions (?i). The party desiring to appeal must within ten days after the decision give notice of appeal to the other party or his solicitor, and also give security, to be approved by the registrar, for the costs of the appeal, whatever be the event of the apjjeal, and for the amount of the judgment, if he be the defendant (o). The court cannot entertain any such appeal where the condition of giving security for costs, «&c., imposed by 13 »& 14 Vict. c. 61, s. 14, has not been strictly complied with (jt?). The appeal may be either in the form of a special case settled and transmitted pursuant to 13 & 14 Vict. c. 61, s. 15, or by motion under the County Courts Act, 1875, s. 6 (5-), in which case the motion will be for a rule nisi in the first instance. In either mode of appeal the matter will be heard by a Divisional Court of the Queen's Bench Division of the High Court as may be appointed, at such times as such court sit to hear appeals from inferior courts (/•). When the appeal is by motion, the application for a rule nisi may, when no court is sitting for the hearing of such matters, be made to a judge at chambers (f^). (m) As a general rule the right to Nicol, C. C. Prac. Chap. XII. (8th appeal depends on the amount of the ed.). In White, app., Greenisli, resp., plaintiff'.s claim for rent and not on 11 C. B., N. S. 209, the ajjpellants the anioimt for which judgment is succeeded on appeal, although they given; Pollock r. Nicol, C. C. Prac. were entitled to distrain for only one 2;'') (8th ed.) ; Dreesman *•. Harris, 9 moiety of tlie rent for which the dis- Exch. 485; 23 L. J., Ex. 210; Mayor tress was taken. 1-. Burgess, 4 E. & B. 055 ; 24 L. J., (o) 13 & 14 Vict. c. Ul, s. 14. Q. B. G7; Vallance v. Nash, 2 11. & (/>) Norris v. Carrington, 10 C. B., N. 712. N. S. 10. (h) 13 & 14 Vict. c. 01, 8s. 14, 15, (7) 38 & 39 Vict. c. 53, s. 0. 16; 19 &20 Vict. c. 108, ss. 08, 71 C. (r) Jud. Act, 1873, s. 45; U. S. C. C. Rules, Order XXIX. ; Pollock v. Order LIX., Kule 11. 794 Ch. XII. S. 1] REPLEVIN. *514 (d) Action of Replevin commenced in the High Court. Jurisdiction of High Court in replevin. — Jiy 11) & 20 Vict, c. 108, s. 65, "iiu action of replevin may be commenced in any superior court in the form ai)plicable to personal * actions therein, and such court shall have power to [*514] hear and determine the same ; and if the replevisor shall wish to commence proceedings in any superior court, he shall, at the time of replevying, give security, to be ap- proved by the registrar, for such an amount as such registrar shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause in a superior court, conditioned to commence an action of replevin against the distrainer in such superior court as shall l)e named in the security, within one week from the date thereof and to prosecute such action ivith effect (.s), and without delay (f) ; and, unless judgment therein be obtained by default, to prove before such superior court that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair or franchise was in question, or that such rent or damage exceeded twenty pounds, and to make return of the goods, if a return thereof shall be adjudged." Commencement of action. — The action must be commenced ivithin one week from the date of such security, excluding* the day of such date. And it must be prosecuted " with effect " (w), and " without delay " (j;), otherwise the bond or deposit will l)e forfeited. Writ of summons. — The action is commenced by writ of summons as in other cases, which will be indorsed thus — " The plaintiff's claim is in replevin for goods wrongfully distrained" ( //). Joinder of other causes of action. — Under the Common Law Procedure Acts no other cause oi action could be joined with replevin, but this restriction is no longer in force, (s) i.e., with success; ante, 500. (r) ^1/;^', .500 (r/). (i) i.e., with due diligence; ante, (y) R. S. C. Appendix A., Fart II., 500. s. i." (k) Ante, 500 (c). 795 *515 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1. altliough separate trials may be ordered if the court or a judge think the various causes of action cannot conveniently be disposed of together (2). Old declaration. — The declaration used to be, as a rule, in a technical form, which, after alleging the taking of the goods, &c., in a certain place by the defendant, went on to allege that he " unjustly detained the same against sureties and pledges, until, &c., whereby the plaintiff has sustained damage." This form has been used by some practitioners since the Judicature Acts, but it would seem very doubtful whether a statement of claim in such form would be held good on a summons to set it aside or amend it, as the state- ment ought to be a narrative of facts and not a mere tech- nical form (a). What damages recoverable. — The only damages recoverable in this action are the expenses to which the plaintiff has been put to replevy liis goods (6). [*515] * Defences, avowry and cognizance. — The defences to an action of replevin were formerly distinguished as pleas, avowries and cognizances, the two latter of which terms were used when the defendant justified the taking of the goods, &c., under a right to distrain, and also claimed their return and damages ; the former being used when the person having such right was the defendant, the latter when the defendant was bailiff or agent of the person having the right. These terms no longer exist as technicalities, a de- fence now being a statement of facts, and the defendant being able to counter-claim the return and damages ; but they will perhaps be still occasionally used for the sake of convenience. Former law of avowry. — In former editions of this work will be found a full account of the law, statutory and other- wise, upon the subject of avowry and cognizance. Such account is now wholly omitted, inasmuch as the statutes upon the subject, 13 Ed. 1, c. 2 (West. 2), 21 Hen. 8, c. 19, {:) K. S. C. Order XVIII., Rule 1. 32 L. J., M. C. 121 ; Connor v. »ent- (a) See R. S. C. Order XIX., Rule ley, 1 Jebb & S. 240. See, too, Wil- 4. kinson on Replevin, 85. (6) I'ease v. Chaytor, '.] H. & S. O.'M ; 7 OF. Oil. XII. S. 1.] REPLEVIN. *516 17 Car. 2, c. 7, and 11 Geo. 2, c. 19, ss. 22, 23, are now re- i:)ealed by the Civil Procedure Acts Repeal Act, 1879, 42 &; 43 Vict. c. 59, and the Statute Law Revision Act, 1881, 44 & 45 Vict. c. 59, as being inconsistent with or superseded by the practice under the Rules of the Supreme Court made in pursuance of the Judicature Acts. These rules make no distinction between replevins and ordinary actions. The following special points, however, should still be mentioned : — Judgment for plaintiff ; damages recoverable. ^ If a verdict be found for the plaintiff he is not entitled to damages for the value of the goods or cattle taken, if they were returned to him when the replevin was made (as is usually the case) ; nor to any special damage for their wrongful taking or de- tention ; nor to any compensation for the insult, annoyance and inconvenience to the plaintiff and his family by the dis- tress ; nor for any injury thereby occasioned to his trade or business, credit or reputation ; but only the costs and ex- penses incurred by him on obtaining the replevy, including the fees paid at the County Court (c). Now, however, as other causes of action may be joined with the replevin (c?), the plaintiff should claim further damages in the first in- stance as for a substantive cause of action. The expenses of the replevin were formerly 21. 2s, in London and Middlesex, and in some other places, and 2Z. 10s. elsewhere, being the supposed expense of the replevin bond ; but now the amount varies according to the sum distrained for. And if the plaintiff incurred further expenses than the fees paid at the County Court (his own solicitor's charges, for instance) he should prove them and also the fees so paid ; otherwise the lowest usual amount will be awarded. * If the goods or cattle have not been delivered to [*516] the plaintiff on the replevy, he is entitled to recover the value of the goods or cattle distrained (t?), and also his damages for their detention, &c. (as in an action of detinue), together with the costs and expenses of the replevy ; and (c) Wilk. Repl. 85 ; Gibbs v. Oruik- {d) R. S. C. Order XVIII., Rule 1. shank, L. R., 8 C. P. 454; and 51U, (e) 2 Chit. Arch. 1082 (11th cd.). post. 797 *516 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 1. perhaps also any special damage occasioned by the distress, which is properly alleged in the declaration and sufficiently proved. In such case the jury should by their verdict sepa- rate the damages, and find so much for the value of the goods or cattle, and so much for the detention, &c. (/). The jury may find a special verdict in an action of re- plevin (^). Proof of special reason. — By the condition of the replevin bond, where the action is brought in the High Court, unless judgment be obtained by default, the plaintiff must "prove before such superior court that he had good ground for be- lieving either that the title to the same corporeal or incor- poreal hereditament, or some toll, market, fair or franchise was in question, or that such rent or damage exceeded 20Z." (/i)- It would seem that the plaintiff should apply upon affidavit to the court or a judge in chambers (/) for leave to enter a suggestion on the roll, that the plaintiff has proved before this court that, &c. And when the rule abso- lute or order for such leave is obtained to make an entry ac- cordingly on the roll ; otherwise, perhaps, the plaintiff and his sureties may be troubled with an action on the replevin bond, notwithstanding he obtained a verdict and judgment in his favour. When judgment a bar to other action. — A judgment for the plaintiff in replevin is a bar to an action for damages for the same taking of the goods in respect of which the replevin was brought (/c). Costa. — Under 11 Geo. 2, c. 19, s. 22, where a defendant avowed or made cognizance upon any distress for rent, quit- rents, reliefs, heriots or other services, and the plaintiff be- came nonsuit, discontinued his action, or had judgment against him, the defendant in re})lcvin recovered double costs. (/) Ash V. Wood, Cro. KHz. T)!*. hut in this case a certificate was re- ((/) Sec tlie case of .Jones r. .Jolin- fused hecause the plaintiff had not son, 5 Excli. 802; 7 Exch. 452. obtained the verdict. (A) 19 & 20 Vict. c. 108, s. (55; (/-) Gibhs ;;. CruiiXV. to operate. {d) Mastero c. Karris, 1 C ]}. 716. 806 Ch. XII. S. 2.] RECOVERY OF DAMAGES. *523 unless the distress was plainly excessive on the face of it, ill which case it was illegal, and the tenant might * bring an action of trespass (e) ; or in the third case [*523] the tenant might maintain an action on the case against the landlord, or trover against a purchaser of the goods. But it must be remembered that, where the distress is only irregular and does not amount to a trespass, and is not excessive, the right of action depends upon the fact of the tenant having suffered actual damage, and he cannot maintain anj'^ action answering to the old actions of tres- pass or trover (/)• One form of indorsement. — By the Judicature Acts and the Rules of the Supreme Court these distinctions are for the most part swept away. There is now one form of indorse- ment of writ provided for all claims for damages arising from wrongful distress, whether illegal, excessive, or only irregu- lar ((/). The statements of claim and defence must set out the facts so far as they are necessary to show that the plain- tiff has a good cause of action and that the defendant has a good defence respectively, care being taken to set out such circumstances as will make the distress wrongful in some of the ways pointed out in the earlier part of this chapter. There is, however, no technical distinction between the forms of action. There is no specimen statement given in the Appendix to the Rules of the Supreme Court. Against whom action brought. — It is, however, still mate- rial to distinguish the various kinds of wrongful distress in relation to the question against what persons a tenant can proceed. In the case of an illegal distress, the action should be brought against the person actually committing the illegal act, and not against the landlord, unless it can be shown that he expressly authorized the act or' adopted and ratified it afterwards (A), of which his presence on the premises immediately after the committal of the wrongful act is evi- (e) Moir v. Munday, cited in 1 ?•. Smith, 5 C. & P. 260; Carter v. Burr. 582, 590. Carter, 5 Bing. 406, (/) Kobinson v. Waddington, 13 (g) R. S. C. App. A., Part II., s. Q. B. 758 ; Lucas v. Tarletoii, 3 II. & 4 ; post, App. D. N. IIG ; 37 L. J., Ex. 240 ; Whitworth (h) Lewis v. Read, 13 M. & W. 834 ; 807 *524 REMEDIES FOil WEONGFUL DISTRESS. [Cii. XII. S. 2. dence (i), though the mere receipt of the proceeds ^yithout proof of knowledge of the illegal act is not so (A-;). Damages. — When the distress is illegal and therefore void from the commeucement, the tenant is entitled to recover the full value of the goods distrained (or of such part of them as were not subject to distress (0)? ^^^ ^i^y damages sustained bj him, nor need any deduction be made for the rent due from him (w). If, however, the landlord seize, among others, things not liable to distress, and on payment of rent and costs withdraws, the tenant can only [*524] recover the actual damage sustained * by him by the seizure of the particular privileged goods (n). If no rent be in arrear and the goods have been sold, the tenant may recover double the value of the goods and full costs of suit ((?). Action of trover, &c. — In addition to proceeding for dam- ages for the illegal distress, the tenant may, if he prefer it, proceed in what may still be called an action of trover or detinue against the person who has by purchase or otherwise come into possession of the goods ; for which cases forms of indorsement of writs are provided (j?). The tenant will have the same rights as to the amount of damages he may recover as in the former mode of action (5'). Similar actions may be maintained by others whose goods are taken who are not tenants of the landlord purporting to distrain, but those cases would not be properly noticed here, as, in regard to them, there could be no relation of landlord and tenant. Action for overplus. — Where the only complaint against Freeman ;;. Kosher, 13 Q. B. 780; 6 (m) Attack v. Bramwell, 3 B. & S. D. & L. 517; (launtlctt c.King, 3 C. 520; 32 L. J., Q. B. 150; Kdniondson B., N. S. 59 ; Ilaseler v. Lcmoyne, 5 v. Nuttall, 17 C. B., N. S. 280. See, too, Tutton V. Darke, and Nixon v. Freeman, 5 II. & N. 047. (n) Hurry v. Pocock, 11 M. & W. 740 ; 12 L. J., Ex. 434. (0) Ante, 522. (p) U. S. C. App. A., Part II., s. 2. ((/) Atite, 623. C. B., N. S. 530; but see Hurry Kickinan, 1 Mood. & Rob. 120. (i) Moore >\ Drinkwatcr, 1 F. & F 134. (k) Green v. Wise, W. N. 1877, p 130. (0 Keen v. Priest, 4 II. & N. 230 ; 28 Iv. J., Ex. 157 ; Swire v. Lcecli, 18 C. B., N. S. 497 ; 34 L. J., C. P. 150. 808 Cii. XII. S. 2.] KECOVERY OF DAMAGES. *525 the landlord is that the sale has produced more than the amount due, and the overplus has not been left in the hands of the sheriff, under-sheriff or constable, as directed by 2 Will. & Mary, sess. 1, c. 5, the tenant should sue in tort, as for a breach of the statute, and not for a return of the balance as money received to his use (r). Excessive or irregular distress. — Prior to 11 Geo. 2, c. 19, any irregularity in a distress made the distress unlawful, so that the full value of the rent for which the distress was taken might be recovered by action (s). But this hardship upon landlords was remedied by sect. 19 of that statute, which enacts that, " where 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 or parties distraining or b}' his, her or their agents, the distress itself shall not be deemed to be unlawful, nor the party or parties so making it be therefore deemed a trespasser or trespassers ab initio ; but the party or parties aggrieved by such unlawful act or irregularity shall or may recover full satisfaction for the special damage he, she or they shall have sustained thereby, and no more, in any action of trespass, or on the case at the election of the plaintiff or plaintiffs ; provided always, that where the plaintiff or plaintiffs shall recover in such action, he, she or they shall be paid his or their full costs of suit, and shall have all the like remedies for the same as in other cases of costs." By sect. 20 of the same statute, "no tenant," &c. "shall recover in any action for any such unlawful act or irregularity, if tender of * amends hath been made [*525] by the party distraining, or his agent, before action brought." If amends be tendered under this section, the landlord need not in the case of action pay the money into court (t). Nor can the person in possession of the goods be (r) Yates v. Eastwoorl, 6 Exch. 19, s. 19; Six Carpenters' case, 1 Sm. 805 ; 20 L. J., Ex. .303 ; Evans v. L. C. Wright, 2 H. & N. 527. (0 See Jones v. Gooday, 9 M. & (s) See preamble of 11 Geo. 2, c. W. 730 (decided on a local act). 809 *525 REMEDIES FOR WRONGFUL DISTRESS. [Ch. XII. S. 2. sued for a conversion of them (u). Whether the distress was excessive is for the jury (.c). A right of action for an excessive distress will not be defeated by a subsequent arrangement made by the tenant with the landlord to prevent a sale of the goods (y) ; but a recovery in replevin is a bar to any subsequent action for an excessive distress (s). Property of plaintiff, — The plaintiff must of course show that he has such a property in the goods as will allow liim to maintain an action, and it has been held that the mere en- joyment of the use of the goods by a person who is neither legal nor equitable owner will entitle him to sue (a). " Not guilty by statute." — With regard to the defences to actions for illegal, excessive or irregular distresses, the state- ment of defence must contain such matters as will show the defendant's action to have been lawful, and the only matter to be particularly noticed is that by 11 Geo. 2, c. 19, s. 21, the defendant was allowed to plead not guilty by statute, and give the special matter in evidence (6), a right in all cases in which it existed, preserved under the Judicature Acts (c), subject only to the conditions that no other defence can be pleaded with it except by leave of the court or a judge, and that the defendant must state the statute in the margin of his pleading (c) ; and it may be as well to point out that in one case at least a plea of not guilty by statute, together with a special plea of justification, under a right to distrain, was, under the old practice, disallowed, as setting up matters which could be disposed of under the one defence of the general issue (c?). Section 21 of 11 Geo. 2, c. 19, is as follows : («) Whitworth v. Smith, 5 C. & P. Pease v. Chaytor, 1 B. & S. 658, 662 ; 250 ; 1 Moo. & U. 194. '3 B. & S. 620 ; 32 L. J., M. C. 121. (x) See Smith v. Ashford, 29 L. J., {). (/O See Maxwell on Statutes, 2nd L. R., 1 Q. B. D. 201, and other ed., p. 218. citing Reg. v. 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